Common Law Commons^™

Brown: British Statutes In American Law 1776-1836, William F. Swindler

Michigan Law Review

A Review of British Statutes in American Law 1776-1836. By Elizabeth Gaspar Brown

Territorial Courts And The Law: Unifying Factors In The Development Of American Legal Institutions-Pt.Ii-Influences Tending To Unify Territorial Law, William Wirt Blume, Elizabeth Gaspar Brown

Michigan Law Review

With the exception of Kentucky, Vermont, Texas, California, and West Virginia, all parts of continental United States south and west of the present boundaries of the original states came under colonial rule, and were governed from the national capital through territorial governments for varying periods of time. All territories in this area were "incorporated" in the sense that they were destined to become states of the United States. All became states by 1912, leaving only Alaska and Hawaii for future statehood. Now that these territories have become states, it seems desirable to review legal developments in all of these "incorporated" …

Territorial Courts And Law: Unifying Factors In The Development Of American Legal Institutions-Pt.1-Establishment Of A Standardized Judicial System, William Wirt Blume, Elizabeth Gaspar Brown

Michigan Law Review

The United States first became a sovereign nation when individual states of the Confederation ceded to the states collectively their several interests in the lands west of the Appalachians which lay east of the Mississippi, north of Spanish Florida, and south of the Great Lakes. This area had been relinquished by Great Britain by the Treaty of 1783 and, with the exception of Kentucky, now became the property of the United States. It was the first area over which the states as a group had complete sovereignty, subject only to the claims of the various Indian tribes. Colonies fresh from …

Book Reviews, Donald P. Kommers, I. C. Rand

Vanderbilt Law Review

Law and Social Process in United States History:

The excellence of Law and Social Process in United States History in every respect matches the high honor accorded Professor Hurst when invited to deliver the ninth series of the Thomas M. Cooley Lectures under the sponsorship of the University of Michigan Law School. This volume, following upon the heels of his Growth of American Law and Law and the Conditions of Freedom, the latter having won the James Barr Ames prize granted quadrennially by the Harvard Law School, merely affirms his stature as an eminent legal historian. Like the earlier volumes, …

Chancery Practice On The American Frontier: A Study Of The Records Of The Supreme Court Of Michigan Territory, 1805-1836, William Wirt Blume

Michigan Law Review

The act of Congress of January 11, 1805, which created Michigan Territory out of Indiana Territory, provided that the new territory should have a government "in all respects similar" to that provided for the Northwest Territory by the Ordinance of 1787. The Ordinance had provided for the appointment of a court to consist of three judges who should have "a common law jurisdiction. "

Criminal Procedure On The American Frontier: A Study Of The Statutes And Court Records Of Michigan Territory 1805-1825, William Wirt Blume

Michigan Law Review

The area north and east of Lake Michigan, organized in 1805 as Michigan Territory, was first organized in 1796 as Wayne County of the Northwest Territory. In 1800 the western half of the county, and in 1803 the eastern half, became parts of Indiana Territory, and so remained until July 1805. In 1818 Michigan Territory was expanded westward so as to include all of the area north of Illinois to the Mississippi River.

Constitutional Law - Right To Jury Trial In Indirect Criminal Contempts In Federal Courts, Denis T. Rice S.Ed.

Michigan Law Review

Should constitutional provisions for jury trial apply to contempts committed outside the physical presence of a federal court? The United States Supreme Court, in the recent case of Green v. United States, reviewed this long disputed question. The case involved two Communist Party leaders who had been convicted of Smith Act violations and then had "jumped bail" when they disappeared in violation of surrender orders requiring their presence in court for sentencing. After four and a half years as fugitives they surrendered in 1956 and were charged with criminal contempt of court. Following a so-called "summary" hearing (without the …

Civil Procedure On The American Frontier, William Wirt Blume

Michigan Law Review

The Treaty of Greenville (1795) by which Indian tribes of the Northwest Territory ceded to the United States the eastern and southern parts of the area which later became the state of Ohio, provided that certain small areas north and west of the treaty line should also be ceded.

Schwartz: The Code Napoleon And The Common Law World, J. G. Castel

Michigan Law Review

A Review of The Code Napoleon and the Common Law World. Edited by Bernard Schwartz.

Lawson: A Common Lawyer Looks At The Civil Law, F. S. C. Northrop

Michigan Law Review

A Review of A Common Lawyer Looks at the Civil Law. By F. H. Lawson.

Legal History-Joseph Story's Anonymous Law Article, John C. Hogan

Michigan Law Review

The first edition of the Encyclopedia Americana (1829-1833) contains numerous articles on a wide variety of legal subjects, including such topics as Common Law, Jury, Equity, etc. The identity of the author of these articles is not disclosed. There is an occasional footnote, however, which declares: "this article prepared by an eminent American jurist." This suggested the possibility of a lively and interesting manhunt--a search for the "eminent American jurist" who agreed to submit articles on law for the Encyclopedia, but who preferred to remain anonymous.

The Wills Branch Of The Worthier Title Doctrine, Joseph W. Morris

Michigan Law Review

It is the purpose of this article to examine the history and origin of the wills branch of the worthier title doctrine, to ascertain the extent of its application and the manner of its application, to determine the legal consequences flowing therefrom, and to consider the desirability of its continued existence.

Treaties Governing The Succession To Real Property By Aliens, Willard L. Boyd, Jr.

Michigan Law Review

Under customary international law no nation has the duty to grant to aliens the right to hold real property. Although international law accords to an alien the privilege of participating in the economic life of the state of his residence, this privilege does not encompass the right to hold real property. The right to succeed to and hold real property is a matter solely within the competence of a nation. It is for each nation exclusively to regulate the acquisition and tenure of real property. National authority in this regard can be traced to the concept that the sovereign may …

Advancements: I, Harold I. Elbert

Michigan Law Review

The purpose of this monograph is to consider the afore-mentioned topics and other questions inherent in the doctrine of advancements. Different interpretations in the various states will be discussed. The principal objectives of the work are to make a comparative study of advancement legislation and to state the law as it actually exists as a basis for determining whether it can be improved.

Restraints On Alienation Of Equitable Interests In Michigan Property, William F. Fratcher

Michigan Law Review

In the Middle Ages a conveyance of land to a monastic corporation resulted in a serious loss of income to the feudal overlord. As such corporations never died, the overlord ceased to receive the reliefs payable on the death of a tenant and to enjoy the feudal incidents of wardship and marriage of minor heirs. Monks could not be compelled to perform military services and it was difficult or impossible to compel a monastery to perform other services incident to tenure. The twelfth and thirteenth centuries saw great expansion in monastic land holdings and consequent loss to the king and …

Comparative Negligence, William L. Prosser

Michigan Law Review

It is the purpose of this article to inquire, so far as possible, into the actual operation of the damage apportionment statutes, and to offer some conclusions as to the most desirable form of act for any legislature about to set forth upon these relatively uncharted seas.

Restraints On Alienation Of Legal Interests In Michigan Property: Iii, William F. Fratcher

Michigan Law Review

In England the impossibility of inter vivos creation of interests in expectancy in chattels and the unsuitability for the purpose of the devices of bailment and contract have tended to restrict attempts to restrain the alienation of chattels to the trust device and provisions in wills for forfeiture on alienation. The trust device involves equitable interests, which are beyond the scope of this study. In connection with a bequest of the use and occupation of chattels for life or a term of years the English courts would probably sustain the validity of a provision for forfeiture on alienation by way …

Restraints On Alienation Of Legal Interests In Michigan Property: Ii, William F. Fratcher

Michigan Law Review

"Estate for life" is a generic term embracing interests in land of several types. The duration of such an estate may be measured by the life of the tenant himself, by the life of some other person, by the joint lives of a group of persons (i.e., the life of the member of the group who first dies), or by the life of the survivor of a group of persons. In the last two cases the tenant himself may or may not be a member of the group. When the duration of the estate is measured by the life of …

Restraints On Alienation Of Legal Interests In Michigan Property: I, William F. Fratcher

Michigan Law Review

During the century and a half which followed the Norman Conquest, the owner of land who attempted to transfer it might meet with opposition from three interested parties, his feudal overlord, his heir apparent and his tenant. His feudal overlord might object to a transfer by way of substitution, that is, one under the terms of which the transferor did not retain a reversion; because the proposed transferee was not a suitable person to perform the feudal services due for the land. As these services were frequently of a personal or military nature such an objection was not necessarily captious. …

Conflict Of Laws-The Nature Of Statutes Of Limitation, Nancy J. Ringland S. Ed.

Michigan Law Review

Several recent cases have again focused the attention of the courts on the nature of statutes of limitation; the question is whether they are procedural or substantive. For purposes of the conflict of laws this distinction is important, for it is universally agreed that in conflicts cases the substance of the cause of action is governed by the law of the place where it accrued, and the procedural aspects are governed by the law of the forum. There is no doubt that the theory which holds the usual statutes of limitation procedural in nature prevails in this country today, but …

Limitations And The Federal Courts, William Wirt Blume, B. J. George Jr.

Michigan Law Review

Though as a practical matter it is difficult to secure passage of uniform legislation in all states, particularly when the subject matter has so long been considered as of local interest only, the need for such legislation in the case of the statute of limitations seems clear. To the extent that such a statute is adopted, the problem of varying limitation periods upon particular causes of action and similar causes of action will be removed. Only by a uniform state treatment of the problem will the conflict among federal districts resulting from the uniformity of result requirement of Erie Railroad …

Citizenship-Intent Required For Expatriation, Willis B. Snell S. Ed.

Michigan Law Review

In recent years, many cases have involved the question whether an American citizen has expatriated himself by his actions. Expatriation in the United States is now covered by statute, but the courts, in construing these statutes, have faced a recurrent problem as to what intent on the part of the citizen is required to effect expatriation. To interpret the present doctrine, it is necessary to examine the history of expatriation, the statutes, and the various situations in which the question of intent has arisen.

Mr. Justice William Johnson, Jurist In Limine: Dissent And The Judging Faculty, A. J. Levin

Michigan Law Review

There is little more in the legal literature on the subject of dissent than, on the one hand, the feeling that somehow it helps to present more than one side of a question and, on the other, that dissent is confusing and unsettling, and, therefore to be avoided. The part that dissent has played in preventing "history" from becoming the routine repetition of events, the function it fulfills in saving mankind from a mechanical adherence to an authoritarian concept of society, the psychodynamic need of the individual for self-expression-particularly evident in democratic societies-these and other related approaches have had not …

Seagle: Men Of Law From Hammurabi To Holmes, Merrill N. Johnson S.Ed.

Michigan Law Review

A Review of MEN OF LAW FROM HAMMURABI TO HOLMES. By William Seagle.

The Function Of Will Contests, Lewis M. Simes

Michigan Law Review

To anyone steeped in the doctrines of the common law there is something anomalous about the will contest. First, the will is duly admitted to probate in a proceeding which is almost universally conceded to be judicial. Then at a subsequent time a so-called contest is brought by the heir, in which the precise proposition determined on the probate is retried. In most jurisdictions the heir is not bound to make any sort of a showing to entitle him to contest. He need not allege newly discovered evidence. He need not submit any evidence of · fraud or mistake. Indeed, …

Fortescue's De Laudibus: A Review, Max Radin

Michigan Law Review

In this opus perfectissimum, Dr. Chrimes, whose book, English Constitutional Ideas in the Fifteenth Century, marks him as the man best fitted for the task, has filled one of the gaps which existed in the scientific examination of the sources of English law. We have Mr. Nicholl's Britton and Professor Woodbine's Glanvil and his still unfinished Bracton, Mr. Ogg's edition of Selden's Dissertatio, and the Hughes-Crump-Johnson edition of The Dialogue on the Exchequer. All these are admirable. There are left only St. Germain and Fleta, both of which cry aloud for an editor of the quality …

Corporate Proxies, Leonard H. Axe

Michigan Law Review

The earlier forms of corporations in England seem to have been political units and the normal mode of conferring corporate rights was by an issue of a charter from the crown, whereby a body of individuals was designated a corporation with the sovereign power to exercise appropriate privileges. Since the charter was issued by the crown, the corporation was considered a part of the government and each member of the corporation was entitled to one vote if given by him in person. As one writer has so well stated, this "was the result of a political philosophy which assumed that …

Revocation Of Wills By Subsequent Change In The Condition Or Circumstances Of The Testator, Elizabeth Durfee

Michigan Law Review

Among the oldest rules in the law of wills are those by which a will is held to be revoked by implication by certain changes in the circumstances of the testator. The purpose of this paper is to investigate these rules. Special reference will be made to statutes, both those which deal generally with the subject and those which provide specifically for the effect of particular events, such as marriage; no attempt will be made, however to analyze the latter type of statute exhaustively. By way of introduction, a brief historical survey of the doctrine should be made.

The Right Of Privacy, Louis Nizer

Michigan Law Review

It is only during the last half-century that the law has recognized the "right to be let alone"-the right under certain circumstances to protect one's name and physiognomy from becoming public property.

No mention of such a right will be found in the works of the great political philosophers and tract-writers of the seventeenth and eighteenth centuries-Hobbes, Locke, Rousseau, Montesquieu, Spencer, Paine. In discoursing on "natural rights," "the state of nature," "social contract," and "the inalienable rights of man," they were concerned only with the power of the state to abridge the liberties of the people. Society had not yet …

The Codification Of The French Customs, John P. Dawson

Michigan Law Review

A renewed attack on central problems of English legal history can gain fresh perspective from the history of French law. France and England entered the later middle ages with a common fund of legal and political institutions. Much of the area that was to be included in modern France was united with England under a common sovereign; political institutions were shaped by the same basic forces into similar forms of feudal organization; private law was largely composed of unformulated popular custom, remarkably similar even in detail. As early as the thirteenth century the tendencies toward divergence, both in law and …