r THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW POPULAR LAW LIBRARY PUTNEY Introduction to the Study of Law Legal History EXAMINATION QUESTIONS BY ALBERT H. PUTNEY, A. B., D. C. L., LL. D. DEAN OF THE ILLINOIS COLLEGE OF LAW, AUTHOR OF "GOVERNMENT IN THE UNITED STATES," "COLONIAL GOVERNMENTS OP EUROPEAN STATES," "LANDMARK CASES IN UNITED STATES CONSTITUTIONAL LAW," ETC., MEMBER OF THE BAR OF MASSACHUSETTS AND ILLINOIS VOLUME I Published by the CREE PUBLISHING COMPANY MINNEAPOLIS v.t T . 1908 Copyright, 1908, by CREE PUBLISHING CO. Minneapolis, Minn. All rights reserved. Brethren Publishing House, Elgin, 111. TABLE OF CONTENTS VOLUME I. FIRST SUBJECT INTRODUCTION TO THE STUDY OF LAW. Section 1 Definition and Nature of Law 11 2 Legal Conceptions 13 3 Substantive and Adjective Law 14 " 4 Origin of Law 15 5 Early Branches of the Law 16 " 6 Domestic Relations 16 " 7 Separation of the Law of Torts and Criminal Law 17 8 Distinction between Real Property and Personal Property. 19 9 Appearance of Contract Law 20 " 10 Conceptions of Cont/acts in the Roman Law and in the Common Law 20 11 Further Divisions of the Law 21 12 Basis of American Law 22 " 13 American Adjective Law 23 " 14 Where to Find the Law 23 " 15 Law and History 25 " 16 The Great Law Developing Nations, BABYLONIA, ROME, ENGLAND.., 26 SECOND SUBJECT LEGAL HISTORY. CHAPTER I. THE LAW OP BABYLONIA 29 Section 1 Beginnings of Law 29 " 2 The Code of Hammurs.t: 31 " 3 Adjective Law 32 4 Domestic Relations 33 5 Real and Personal Property 35 " 6 Contract Law 36 7 Banking and Admiralty Law 37 CHAPTER II. THE LAW OF GREECE 39 Section 8 Greece 's Place in the History of Legal Development .... 39 " 9 Public Law 40 iil iv CONTENTS Section 10 Adjective Law 41 " 11 Substantive Law 42 CHAPTER III. ROMAN LAW 43 Section 12 Importance of the Study of Roman Law 43 " 13 Early Rome 44 " 14 Early Political Institutions 45 " 15 First Reforms in the Law 46 " 16 The Law of the Twelve Tables 48 " 17 Contest between Patricians and Plebeians 48 " 18 Legis Actiones 49 " 19 Early Contract Law 50 " 20 Jus Gentium 51 " 21 The Empire 53 " 22 The Constitutions 54 " 23 Jus Respondendi 55 " 24 Roman Law Writers 56 " 25 The Codes 57 " 26 The Theodosian Code 57 " 27 Justinian.. 57 CHAPTER IV. OUTGROWTHS OF ROMAN LAW 67 Section 28 The Fall of Rome 67 " 29 The Barbarian Codes 68 " 30 Renewed Study of Roman Law 68 " 31 The Civil Law 69 " 32 The Canon Law 70 " 33 Extent of the Jurisdiction of the Canon Law. . 71 CHAPTER V. TEUTONIC AND ANGLO-SAXON CUSTOMS AND LAWS 73 Section 34 The Teutonic Origin of England's Political and Legal In- stitutions 73 " 35 Early Institutions as Described in the Germania 74 " 36 The Anglo-Saxon Conquest of England 77 " 37 Changes in Anglo-Saxon Institutions Occasioned by this Conquest 78 " 38 Early Political and Constitutional History of Anglo-Saxon England 80 " 39 The Union of the Seven Kingdoms 85 " 40 Political and Constitutional History of Anglo-Saxon Eng- land. . 86 CONTENTS. V Section 41 The Saxon Witenagemote 96 " 42 The Anglo-Saxon Private Law 97 CHAPTER VI. CONSTITUTIONAL AND POLITICAL HISTORY OF ENGLAND FROM THE NORMAN CONQUEST TO THE REIGN OF GEORGE III 101 Section 43 The Norman Conquest 101 " 44 Changes Caused by the Norman Conquest 102 45 The Feudal System 102 " 46 The Norman Kings 104 " 47 Legal Reforms of Henry II 105 " 48 Magna Charta 107 " 49 Simon de Montfort and the Origin of Parliament 109 " 50 Parliament in the Fourteenth Century 113 " 51 The War of the Roses 114 " 52 The Tudors 118 " 53 Contest between the Stuarts and the House of Commons. . 121 " 54 The Bill of Rights 137 " 55 The Ministry System 140 " 56 The House of Hanover 141 CHAPTER VII. THE ENGLISH COMMON LAW 145 Section 57 The Norman Conquest 145 " 58 The Feudal System 146 " 59 Feudal Tenures 147 " 60 Incidents of the Feudal Tenures 150 " 61 End of the Feudal System 152 " 62 Early Important Statutes on the Law of Real Property. . . 152 " 63 Early Adjective Law 153 " 64 The Original Writs 154 " 65 The Statute of Westminster II 156 " 66 Criminal Law 157 " 67 Jury Trial 159 " 68 Domestic Relations ' 160 " 69 Early Contract Law 161 " 70 Development of Contract Law 162 71 Contest between the Common Law and Civil and Canon Law 162 " 72 Legislation of the Sixteenth and Seventeenth Centuries. . 165 CHAPTER VIII EQUITY JURISPRUDENCE 167 Section 73 Rigidity of the Common Law 167 74 Beginnings of Equity Jurisprudence 169 " 75 Equity Jurisprudence in the Reign of Richard II 170 VI CONTENTS. Section 76 Forms of Early Bills 172 " 77 Contest with the Common Law Courts 180 " 78 Uses 182 " 79 The Statute of Uses 184 CHAPTER IX. OUTLINE OF THE CONSTITUTIONAL, POLITICAL AND LEGAL HISTORY OF THE THIRTEEN COLONIES, AND OF THE UNITED STATES PRIOR TO THE ASSEMBLING OF THE FEDERAL CONSTITUTIONAL CONVEN- TION 185 Section 80 English Colonization in America 185 " 81 The Thirteen Colonies 193 " 82 The Colonial Government of Virginia 195 " 83 Massachusetts 197 " 84 Connecticut 201 " 85 Rhode Island 202 " 86 New Hampshire 203 " 87 New York 203 " 88 New Jersey 204 " 89 Pennsylvania and Delaware 205 90 Maryland 207 " 91 North and South Carolina 208 " 92 Georgia 209 " 93 The Revolutionary War 209 " 94 The Articles of Confederation 212 " 95 Judicial Powers of the United States Government under the Articles of Confederation 214 " 96 Causes Leading up to the Constitutional Convention 218 CHAPTStv X. AMERICAN CONSTITUTIONAL LAW 221 Section 97 The Constitutional Convention 221 " 98 The Virginia and New Jersey Plans 224 " 99 The Three Great Compromises in the Constitutional Con- vention 230 " 100 Adoption of the Constitution 236 " 101 The Early Amendments 237 " 102 Political Divisions on Interpretation of the Constitution. . 238 " 103 Recent Constitutional History 241 Quiz Questions, First Subject 243 " " Second Subject 247 Appendix A Extracts from the Code of Hammurabi 265 " B The Law of the Twelve Tables 275 " C MagnaCharta 279 " D The Petition of Right 289 " E The Bill of Rights 293 CONTENTS. Vll Appendix F The Declaration of Independence 299 ' ' G The Articles of Confederation 303 " H The Virginia Plan 309 I The New Jersey Plan 311 " J Abbreviations of the Titles of Reports 313 " K Statute of De Donis 339 " L Statute of Quia Emptores 341 " M Statute of Uses 343 " N Statute Abolishing Feudal System in England 349 " O Statute of Frauds.. . 353 FIRST SUBJECT. Introduction to the Study of Law, INTRODUCTION TO THE STUDY OF LAW. SECTION 1. DEFINITION AND NATURE OF LAW. "Law" is a word of illimitable use in both its popular and its technical sense. 1 In its broader sense it is best defined as a rule of action, and in this sense the term is used in all sciences. In its more technical sense a law is a rule of civil conduct prescribed by the law-making power in the state. 2 Some other definitions of law which have been given are as follows: "A rule of civil conduct pre- scribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." s 'The laws of a commonwealth * * * * are those rules and principles of conduct which the govern- ing power in a community recognizes as the rules and principles which it will enforce or sanction, and accord- ing to which it will regulate, limit, or protect the con- duct of its members." 4 'The term law, as used in this constitutional provision, embraces all legal and equitable rules defining human rights and duties and providing for their en- forcement; not only as between man and man, but also between the state and its citizens." 5 The Supreme Court of the United States has defined the laws of a state to be "the rules and enact- ments promulgated by the legislative authority thereof, or long-established local customs having the force of laws." 6 1 25 Cyc., 163. * Bouvier, Law Dictionary. 2 18 American & English Enc. of * Jenkins vs. Ballantyne, 8 Utah, Law, 569. 247. 3 Blackstone, Com., 14. Swift vs. Tyson, 16 Peters, 18. 11 12 INTRODUCTION TO THE STUDY OF LAW. No uniform definition of this term has ever been accepted and many sharp controversies have taken place on this point between different law writers. On the proper purpose of laws there is less ground for a difference of opinion. The only sound basis for any law is the general good of the community which is to be governed thereby. The Supreme Court of the United States has thus expressed its opinion on this point: "All laws, all political institutions, are dis- positions for the future, and their professed object is to afford a steady and permanent security to the inter- ests of society;" 7 and again, " Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude." 8 The laws of an absolute monarchy, however, are the general rules or edicts issued at the pleasure of the king or emperor. 9 In a constitutional country the laws are the expression, either directly or indirectly, of the will of the people, or more strictly, of that portion of the people to whom a share in the govern- ment is given. Society is only made possible by law, and "the supremacy of the law is the foundation upon which our institutions rest." 10 A law, at least in a consti- tutional country, must be of general application. If a rule of law is settled the courts cannot disregard it because they consider it unjust " or inconvenient. 12 The proper remedy in such a case is in the hands of the legislative department. Macaulay has well said 7 Rector etc. of Christ Church vs. 10 Northern Securities Company vs. Philadelphia County, 24 How- U. S., 193 U. S., 350. ard, 302. " Childress vs. Emory, 8 Wheaton, Hurtado vs. California, 110 U. S., 672. 536. " Ex parte Kearney, 7 Wheaton, United States vs. Arredondo, 45. 6 Peters, 714. INTRODUCTION TO THE STUDY OF LAW. 13 that breaking a law for a good purpose is as dangerous as breaking it for a bad purpose, because in the first case a precedent is formed, with popular approval, which is sure to be followed later for bad purposes. "It is a fundamental principle in our government, that no individual, whether in office or out of office, is above the law. In this our safety consists." 13 SECTION 2. LEGAL CONCEPTIONS. Four great legal conceptions underlie the whole study of law; rights, duties, wrongs, and remedies. It is in the order just given that these conceptions are most generally considered at the present time. ' 'A system of laws promulgated by a lawgiver of suffi- cient wisdom and illimitable foresight would undoubt- edly commence with a definition of rights, and thence proceed to prescribe duties, thence to prohibit wrongs, and finally to provide legal remedies." " "To the analytical jurist it may well seem that the ideal code might be framed in such order. It can- not, however, escape observation that the method of unfolding legal truth here indicated is exactly the reverse of the process by which law has, as a matter of fact, historically developed. To the finite, human mind legal truth has come as a sort of gradual revela- tion. Form, which is so conspicuous in early law, serves as a vehicle for the abstract. As the mind is gradually educated to the point of grasping the ab- stract, formality disappears. In legal thought, as in philosophic speculation, we must move through the concrete up to higher abstractions, and if we would conduct the reader over the true path of legal knowledge we must take a course exactly the reverse of that u McLean, J., in Kendall vs. " Robinson, Elements of American States, 3 Howard, 792. Jurisprudence, 155. 14 INTRODUCTION TO THE STUDY OF LAW. which the analytical jurist pursues in his speculations. In others words, instead of beginning with 'right '- a term so highly abstract we must begin with the phenomenon of adjudication. The order in which the different conceptions appear is somewhat as follows : judge, court, adjudication, legal proceeding (action or remedy), wrong, duty, right. "It may at first seem strange that historically adjudication should precede the development of the conception of law, for according to existing ideas adjudication is only an application of law and presup- poses the existence of a body of legal principles; yet it is nevertheless true that law is built up inductively by observing and comparing particular decisions. "This conclusion is borne out to the utmost degree of certainty by all that we know of legal development in early society. What the early communities must have is a decider or arbitrator of disputes. It is obvi- ous that the reverend and wise man, the priest, or the king, one who by virtue of his wisdom, power, and posi- tion can command the love and obedience of all, would be the first to fulfil the function of judge. The desire peacefully to settle disputes instead of resorting to violent modes of redress would gradually make itself felt throughout the community. The decisions of this primitive judge must inevitably reflect the current ideas of justice, and in course of time the points of likeness in many cases are observed and teach the community its first lesson in law." 15 SECTION 3. SUBSTANTIVE AND ADJECTIVE LAW. All law can be classified either as substantive law or as adjective law. Substantive law embraces all 11 The Foundations of Legal Liability Street Vol. Ill, pp. 3 and 4. INTRODUCTION TO THE STUDY OF LAW. 15 those provisions which relate to the rights either of individuals or of society at large, and of the wrongs which infringe such rights. Adjective law has to do with the rules under which these rights are vindicated, and these wrongs redressed. The great mass of the law at the present time is substantive, as can be seen by a glance at the chart of the law contained in this volume. The average law student will spend eighty per cent of the time given to his entire course on the various branches of substantive law. To see how greatly this proportion varied hi earlier times, we have only to turn to the writings of Bracton, the great English law writer of the thirteenth century; this writer takes up the law under the heads of Persons, Things, and Actions and devotes 7, 91, and 356 folios respectively to these subjects. The first two divisions cover substantive law, the third, adjective. The relations existing between rights and remedies are in fact entirely reversed from those existing in early times. To-day a remedy is given wherever there is a legal right; formerly (i. e. after a legal system of any kind had been established) a legal right only existed where there was a remedy which could be used to en- force it. SECTION 4. ORIGIN OF THE LAW. The beginnings of law are everywhere lost in ob- scurity. Laws of some kind were necessary before historians arose, and the gradual growth of legal customs would in any event have been too gradual to have attracted the attention of historians even if they had then existed. The original forces behind the early laws may be said to be those of custom and might. In this respect 16 INTRODUCTION TO THE STUDY OF LAW. private law in its infancy bears a striking resemblance to the International Law of to-day. With no general tribunal to enforce the principles of this branch of law, its existence at all depends on the fact that nations will generally follow the settled customs governing relations between states. In cases of disputes the stronger nation will force its views upon the weaker. So among primitive people in their private dealings. It was soon appreciated that people could not live together in society without some rules governing their respective rights and liabilities and their dealings one with another. The rules would arise gradually and finally acquire the force of customs. They would be in general followed by the members of the com- munity, but when this was not the case, the enforce- ment of their observance would generally fall upon the party injured by the breach. SECTION 5. EARLY BRANCHES OF THE LAW. The important branches in all early systems of jurisprudence are few in number. Of the many sub- jects into which the law is divided at the present time, some were entirely unknown, others were of slight importance. The oldest branches of the law under most systems were the laws governing Domestic Rela- tions, and a combination of Criminal Law and Torts. The law of Real Property arose early in the agricul- tural stage of the economic development of a race; while, on the other hand, the law of personal property and of contracts were late in making their appearance. SECTION 6. DOMESTIC RELATIONS. Perhaps the oldest of all branches of the law is that of Domestic Relations. The first step away from anarchy and towards social organization is the creation INTRODUCTION TO THE STUDY OF LAW. 17 of the family. The state is evolved from the family by a process of combinations, and the government of early states is an enlarged copy of the government of the family. The position of the King is modeled on that of the father. The family organization and relations are always protected by the tribe or state. The respective rights and obligations of members of the family are clearly defined at a period when all other law is vague and uncertain. The basis of the family is marriage. Early marriages would almost invariably arise either from capture or purchase, and the form of the marriage ceremony among all early races long retained the fiction of capture or purchase after the reality had disappeared. Even to-day, when these fictions have disappeared from the law, they are retained in our marriage customs. Marriages which are the result either of capture or purchase bring about a high degree of authority on the part of the husband, and a corresponding degradation on that of the wife. Under the rules of nearly all an- cient systems of jurisprudence the legal rights of the wife are little superior to those of a slave. The excep- tions to the rule are mainly to be found among those races which continue to reckon relationship through the female line, and where a greater laxity is allowed in marital relations. The authority of the father over his children generally continues throughout life, and is almost absolute in its extent. SECTION 7. SEPARATION OF CRIMINAL LAW AND THE LAW OF TORTS. The conception of the distinction between a crime and a tort is one requiring a high degree of legal de- Vol. 12. 18 INTRODUCTION TO THE STUDY OF LAW. velopment. The uncivilized mind, in law as in othei sciences, is always looking at the concrete, and fails to grasp the abstract. If a murder or a theft is com- mitted the wrong to the individual is at once apparent to everyone; the wrong to society is too subtle a one to be easily seen by the savage or even semi-civilized races. The first view of all races has been that the one who has suffered a wrong is the one who should redress it, or the one to whom compensation should be made. If the wrong was that of murder the relatives of the de- ceased are the ones to redress the wrong or receive the compensation. We see here the double thought of punishment for the wrong doer, and of compensation for the party injured, but the two are in the alternative ; if a person who has suffered an injury chooses to accept compensation therefor, he waives his right to inflict vengeance on the wrong doer. The first step away from this state of affairs is when the contest between the accuser and the accused takes place before the court and under specified rules. Actual physical contests to settle accusations of dis- putes have been parts of regular judicial procedure under many legal systems, and the fictions of such con- tests have continued beyond the actual practice. Even when the court takes upon itself the decision of alleged wrongs, it for a long time fails clearly to distinguish between crime and tort. Both are tried at the same time and punishment and damages decreed by the same judgment. A system of jurisprudence which clearly differen- tiates the crime and the tort ranks high in the legal scale. Few European codes do this till near the close of the middle ages. INTRODUCTION TO THE STUDY OF LAW. 19 SECTION 8. DISTINCTION BETWEEN REAL PROPERTY AND PERSONAL PROPERTY. Every system of laws recognizes a fundamental division of property into real and personal, or into movable and immovable. Although the exact dividing line between the two classes is a variable one in differ- ent systems, still in general rights over land and those things annexed to the land fall into one class, and the possession of movable articles into another. The very technical rules governing the exact extent of real property at common law will be considered hi Volume Six of this series. Personal property is older than real property. The stone hatchet and the rude canoe are considered the personal property of their owner long before anyone attempts to appropriate land to his exclusive use. Personal property, however, long remains of little im- portance; until a country has reached a comparatively high stage of commercial development the only kinds of personal property of importance are cattle and weapons, and the necessary legal principles for the regulation of the ownership of these articles are few and simple. The law of real property, on the other hand, becomes of the most vital importance, as soon as the ownership of this species of property is recognized at all. There is a long period in the economic develop- ment of every race, when practically the sole occupation open to the mass of the community is that of agricul- ture. As in every locality population tends rapidly to outstrip the supply of available land, the ownership, and the laws governing the ownership of real property, become of the most vital importance. The history of the development of the English law of real property will be treated in detail under the subject of legal history. 20 INTKODUCTION TO THE STUDY OF LAW. SECTION 9. APPEARANCE OF CONTRACT LAW. There is no more striking difference to be found between a primitive and a highly developed legal sys- tem, than in the relative importance of the law of con- tracts. In modern times the central subject of the whole body of the law is that of contracts. In the study of law the first branch of the substantive law to be taken up is that of contracts, and this subject and its subdivisions occupy a large part of the entire course. Our highly developed and specialized eco- nomic and industrial systems render a multitude of con- tracts a necessity to business life, and the importance of the subject is daily increasing. In the early systems the law of contract is practi- cally limited to that of bailments and executed sales. The simple conditions and the primitive state of society give no occasion for the creation of complicated or future contracts. The important rights of the individual are those natural and absolute rights which belong to him as a member of the community, rather than those special ones which he acquires by contract. SECTION 10. CONCEPTIONS OF CONTRACTS IN THE ROMAN LAW AND IN THE COMMON LAW. Striking differences appear in the fundamental conceptions of the nature of a contract to be found in the two great systems of jurisprudence, the Roman Law and the Common Law. There are two standpoints from which a contract may be viewed, that of the right, and that of the obligation or duty. To a certain extent each is the correlative of the other, but they are not the exact correlative. A right created by a contract in favor of one of the parties to it places a correspond- ing duty upon the other; but one party may be under INTRODUCTION TO THE STUDY OF LAW. 21 obligation to do what the other party has strictly no right to claim. The great difference between the principle of the Roman Law and the Common Law on this subject arises from the fact that the Roman Law is looking primarily at the obligation and the Common Law at the right. The result was that the Roman Law would enforce a contract founded upon moral obligation, while one of the most fundamental principles of the Common Law has always been that a consider- ation is necessary for the validity of any agreement. These distinctions will be further considered under the subjects of Legal History and Contracts. SECTION 11. FURTHER SUBDIVISIONS OF THE LAW. The subjects of Domestic Relations (Subject X in this work), Criminal Law (Subject XXX), Torts (Subject VIII), Real Property (Subject XVII), Personal Property (Subject XIV) and Contracts (Subject VI) have already been referred to. The whole tendency of law has constantly been towards the creation of new branches of the law and the sub- division of old ones. This tendency of subdivision has been particularly active in the field of contracts, where we now have the following clearly defined im- portant subdivisions: Agency (Subject VII), Sales (Subject XI), Bailments (Subject XII), Carriers (Subject XIII), Partnership (Subject XXIII), Private Corporations (Subject XXIV), Bills and Notes (Subject XXVI), Guaranty and Suretyship (Subject XXVII) and Insurance (Subject XXVIII). As off-shoots from the law of Real Property we have Abstracts (Subject XVIII) and Mining Law (Subject XIX), and from the law of Personal Property, Patents (Subject XV) and Copyrights (Subject XVI). The law of Wills (Subject XXXII) treats of the disposal after death of 22 INTRODUCTION TO THE STUDY OF LAW. both species of property. As a supplemental system to that of the Comman Law we have Equity Juris- prudence (Subject XX), of which Trusts (Subject XXI) is a subdivision. Under adjective law we find Common Law Pleading (Subject XXXIV), Equity Pleading (Subject XXII), Code Pleading (Subject XXXV), Criminal Procedure (Subject XXXI), Federal Pro- cedure (Subject XXXVI), Evidence (XXXVII), Damages (Subject IX), Administration (Subject XXXIII) and Bankruptcy (Subject XXIX). In the field of public law it is necessary to consider United States Constitutional Law (Subject III), State Constitutions (Subject IV) , Statutory Construc- tion (Subject V) and Public Corporations (Subject XXV), together with International Law, both Public (Subject XXXVIII) and Private (Subject XXXIX). Other subjects treated in this series of volumes are Legal History (Subject II), Spanish- American Law (Subject XL) and Legal Ethics (Subject XLI). SECTION 12. BASIS OF AMERICAN LAW. The Common Law of England is in general the basis of the law of all the states of the American Union except Louisiana, whose system is based upon the Civil or Roman Law. In most of the states it is provided that the English Common Law and English Statutes relative to private law up to the beginning of the fourth year of James I (March 24, 1606), with a few exceptions, shall be accepted as law in the state. The system of Equity Jurisprudence is accepted in these states along with the Common Law. In every state the common or unwritten law must, of course, give way to the state's constitution and statutes. The United States, as such, has no Common law. INTRODUCTION TO THE STUDY OF LAW. 23 Strictly speaking the only Federal law is that of the United States Constitution and statutes. The Federal Courts, however, in many cases apply the laws of the state in which the court sits, and thus indirectly are governed by the Common Law. SECTION 13. AMERICAN ADJECTIVE LAW. The American States adopted the system of Common Law Pleading along with the substantive common law. Some states, as for example Illinois, still retain this system almost in its entirety. In most states however great changes have been made in the adjective side of the law. About one-half of the states have adopted a general set of laws commonly known as Codes, by which not only the common law system of pleading, but also even the distinction between law and equity, has been abolished ; and a new and simpli- fied system of pleading and practice adopted, with a single form of action capable of being adapted to meet the conditions of every case. All existing legal rights, however, are retained under these codes and can be enforced under the new system. The laws of evidence have also undergone many changes in recent years, and many of the unreasonable technicalities of the ancient rules swept away. These changes will be considered under the subject of Evi- dence. SECTION 14. WHERE TO FIND THE LAW. The whole body of the law is generally divided into the two classes of written law and unwritten law. Written law is the work of the legislative department of the governments; unwritten law owes its force to custom and long continued use, and its principles are to be found in the decisions rendered by the judicial 24 INTRODUCTION TO THE STUDY OF LAW. department. The unwritten law in all the States, of this Country, except Louisiana, is that of the Com- mon Law. Law in the United States is also divided into Federal law and the law of the particular states. The highest law of the land is the Constitution of the United States ; after this comes the laws and treaties made under the authority of this Constitution. The constitutions and statutes of a state prevail over all unwritten law but yield to the Federal Constitution. In many states the written law has been codified. A code is a complete system of law, scientifically arranged and promulgated by legislative authority. A code generally includes a portion of what has formerly been the unwritten law of the state. Municipal ordinances are the written laws passed by Municipal Corporations. Within their somewhat narrow sphere they have the force of law. Government orders and regulations, and the rules of court, while not strictly laws, have the force of laws in many respects. The unwritten law is to be found in the reported decisions of the courts. There are complete official reports of the decisions of the Supreme Courts, both of the United States and of the States, and of many subordinate courts. It was formerly customary to give to each volume the name of its reporter. For example, the first ninety volumes of the reports of the Supreme Court of the United States were thus named. The names of these reporters with their number of volumes reported by each were as follows: Dallas, 4 (1-4); Cranch, 9 (5-13) ; Wheaton, 12(14-25); Peters, 16 (26-41); Howard, 24 (42-65); Black, 2 (66-67); Wallace, 23(68-90). Beginning with volume 91, the United States reports have been merely cited by the INTRODUCTION TO THE STUDY OF LAW. 25 number of the volume. There has been no syste- matic official reports of the decisions of the inferior Federal courts. All the decisions of the Circuit Courts of Appeals and of the Circuit Courts since 1880 are contained in the Federal Reporter. Early cases are to be found in the set of books known as the Federal Cases. Every State has its official set of reports of the decisions of the Supreme Court. In the older states the earlier volumes are named after their reporters. In some states there are official reports of the decisions of courts of a lower grade, as the Appellate Court Re- ports in Illinois. In addition to the official state re- ports there are various unofficial reports, the principal one being the different sets making up the "Reporter System" which by combining the reports of several states greatly reduces the cost to the purchaser. In addition to American reports, the English re- ports may be resorted to as evidence of what the true common law principle on a certain question is. More weight is given to English reports prior to 1606 than those since that date. 16 SECTION 15. LAW AND HISTORY. The law as it exists today is the product of long continued evolution. "The student of law in our times has come to recognize the fact that law is, in a sense, a branch of history, and is to be studied in a historic spirit and by a historic method; and as the student of law recognizes the relation which exists between law and history, so also has the student of history come to recognize that a certain relation sub- sists between history and law." " 16 For list of reports and common 1T From lecture by Henry Wade abbreviations therefor see Ap- Rogers, Dean of the Yale Uni- pendix J. versity Law School. 26 INTRODUCTION TO THE STUDY OF LAW. The law student who desires to understand his profession, to be a true lawyer rather than a mere pettifogger, must be willing to go back to earlier times to study the origin of and reasons of the legal prin- ciples which he wishes to apply. Nor in his study of legal history must he limit himself to the history of his own country. All countries, and the United States in particular, have borrowed from the legal learning and experiences of the nations which have gone before them. The great mass of our legal conceptions and principles have been brought from across the Atlantic and in many cases, in their ultimate analysis, from a still more distant home. SECTION 16. THE GREAT LAW-DEVELOPING NATIONS. BABYLONIA, ROME AND ENGLAND. It would be a hopeless and a useless task for the law student to undertake the study of the legal systems of all countries. The greater majority of nations have contributed little or nothing to the wealth of the world's jurisprudence. Three nations, among the vast number of those of past and present times, stand out as the great law-developing nations of the world. These three are Babylonia, Rome, and England. The work of Greece is important, not for what she herself accomplished, but for the influence which she exercised upon the development of Roman law. It is to the legal history of these four countries, together with that of our own, that the balance of this volume has been devoted. The accounts of the juris- prudence of the three earlier nations have of necessity been made very brief, but a more detailed treatment has been attempted of the laws and institutions of the two English-speaking nations. SECOND SUBJECT. Legal History. CHAPTER I . THE LAW OF BABYLONIA. SECTION 1. BEGINNINGS OF LAW. The nation which occupied the land about the Euphrates and Tigris rivers, a region successively the seat of the great Chaldean and Babylonian Empires, appears as the first great cosmopolitan race in the world's history. The earliest inhabitants of this region whom history can identify, were of the Sumerian and Arcadian races, outlying branches of the great Mongolian family. A little later a Hamitic migration spreads across the territory and finally came the Semites, destined to be the ruling race of this country in the periods of its greatest glory. At the present day the facilities for travel and migration have done much to break down lines between nations and create a greater or less mixture of blood in the veins of every race. In the early periods of human history, however, the difficulties of migration and racial prejudices all strongly tended to prevent mixture of races; with the result that Babylon stands practically alone among the ancient Eastern monarchies in the extremely mixed ancestry of her citizens. Babylon was not only cosmopolitan through the various races from whom her people were descended, but also from the wide intercourse and commercial connections with other nations. From her position between India and Phoenicia, from her great rivers and her access to the Persian Gulf, from the richness 29 30 LEGAL HISTORY. of her own products, Babylon was long the great com- mercial nation of the world. It has always been the cosmopolitan and the com- mercial races which have left the deepest impress upon the world's history, and the Babylonians furnished no exception to this rule. Although the contributions of this nation to human progress are found in nearly all the branches of human knowledge and enterprise, still her greatest work was in the field of law. 1 The great work of the nation was the production of a system of law, necessary to the extended com- mercial activity of the city and produced by that activity. This was, by the very processes that called it into being, made a part of the world's life. The great and complicated transactions of the Babylonian merchants needed an elaborate body of law; and the same influences which brought into existence that mass of unwritten law, which in modern times passed into statute law, in other ages brought into existence the commercial or merchant law in a form hardly less elaborate. Wherever the Babylonian merchant went, he carried with him the law by which his business, in its extent and fullness, was made possible. He thereby became the pioneer of a higher civilization. * * * "The law of Babylon did not come to an end with the fall of the new Babylonian Empire. Innumerable tablets of a later date than the conquest of Babylon by the Persians have been preserved. The conquerors were, in matters of law, inferior to the conquered, as they had not been subjected to the same conditions. They adopted to a large extent the Babylonian law; it is certain that they adopted it in those particulars in which the genius of the Babylonians had achieved the greatest results. The extensive conquests of the THE LAW OF BABYLONIA. 31 Persian Empire diffused a knowledge of Babylonian commercial jurisprudence throughout a vast tract of country. That which was at one time the exclusive possession of one highly favored city became the property of the whole world; although much had already been done by the Phoenicians in spreading the law of Babylon." 1 It is impossible to ascribe any definite time to the beginning of this system of law. Its originators were undoubtedly the early Accadian settlers who be- queathed it to the Semites, by whom it was developed into the greatest system of laws in existence prior to the time of the Roman Empire. SECTION 2. THE CODE OF HAMMURABI. The Code of Hammurabi (Khammurabi) is the oldest code of laws now in existence, and in all prob- ability the oldest extensive code ever drawn up by man. It greatly antedates the laws both of Moses and of Manu. The exact date of its creation is uncer- tain but was probably somewhere between two and three thousand years before Christ. Although the Code of Hammurabi shows a sur- prisingly high development of the law, it is very far from representing the highest point reached by Baby- lonian law. This can be easily appreciated when we remember that the period which elapsed between the writing of this code and the final overthrow of Babylon by the Persians, is approximately equal to the total period so far included in the Christian era. Extracts from the Code of Hammurabi will be found in Appendix A, to this subject. The provisions of the code are also made use of in the treatment in the 1 Lee's Historical Jurisprudence, Part I, Chapter I. 32 LEGAL HISTORY. following sections of the various branches of the Babylonian law. SECTION 3. ADJECTIVE LAW. The adjective law of the Babylonians was always far less advanced than their substantive law. While many of the provisions of the latter may compare not unfavorably with modern legal conceptions, the former is on the level of that of races of a low grade of legal development. The administration of the courts seems to have been largely in the hands of the priestly class. This was perhaps largely brought about by the numerous and complicated oaths required, both in business transac- tions and in legal proceedings. No scientific systems for weighing the value or truth of evidence was ever devised by this people. Wit- nesses seem to have also acted, to a certain extent, in the capacity of jurymen, as was the case in early English law. Cases, if possible, were settled upon the authority of written instruments. To prevent their alteration an ingenious system was resorted to. Written instruments, written on baked bricks, were made out in duplicate; these duplicates were then fastened together in such a manner that the inner one could not be reached without destroying the outer one. If it was claimed by either party that the outer tablet had been tampered with, this tablet was de- stroyed and the inner one exposed to view. The following translation of a Babylonian record will help as an illustration of the court proceedings of this country: "Ilu-bani, on his arrest, makes claim to the garden of Sin-Magir, which Mar-Martu bought. They went to the judges, and these brought them to the THE LAW OF BABYLONIA. 33 door of the goddess Nin-Marki. To the judges of the door of Nin-Marki, Ilu-bani swore in the gate of Nin- Marki as follows: 'I am the son of Sin-Magir; he adopted me, and my seal (i. e. } the sealed contract of adoption) is not broken.' Thus he swore. Since Rim-Sin adjudged the garden of the house to Ilu-bani, Sin-muballit has laid claim to the garden and brought suit against Ilu-bani for it. They went to the judges, and the judges brought them before the * * * and witnesses, and in the door of Marduk, Sussa, Sin, Husa and Nin-Marki, the daughter of Marduk they placed them. The earlier witness of Mar-Martu in the door of Nin-Marki, where Ilu-bani said, 'I am the son, it belongs to me/ adjudged the garden and house to Ilu-bani. Sin-muballit shall lay no complaint as to illegality, or bring any further suit against him. They swear by Sin, Samos, Marduk and King Ham- murabi. Before Sin-imfurani, the president of the court, Etelka-Sin, Apil-irristi, Ubarru, Zanbil-arad- Sin, Ahia, Kab-dugami, Samas-bani, the son of Abi- dara, Zaninkasin, Izkur-Ea, Banila. Sealed with the seal of the witnesses." SECTION 4. DOMESTIC RELATIONS. One of the earliest, and also one of the most dis- tinctive branches of the law to be developed in the legal history of any race or nation, is that of Domestic Relations. The first step towards the construction of a social organization is the creation of the family. The tribe or nation is later developed as an enlarge- ment of the family, or a combination of families, and the organization of the family serves as the model for the government of the larger state. Upon such organ- ization of the state, the unit for most purposes, for a Vol. 13. 34 LEGAL HISTOEY. long period, is the family rather than the individual. Most property is held rather as family than individual property, and each family has its own internal govern- ment, under a head, whose almost despotic power is recognized and protected by the superior government. It is thus apparent that among primitive races, not only does the law of Domestic Relations occupy a far more important place in the judicial system, than it does among more advanced races, but also, that this branch of the law is, in general, the first branch of the law to take any definite shape. Fur- thermore, no other set of laws give such an insight into the habits and character of a race as do those laws governing marriage, and regulating the mutual rights and obligations existing between the various members of the family. The Babylonian marriage was frankly one of purchase. The daughter was considered as valuable property for which the husband paid a purchase price to the father, or to the mother, if the father was a priest. The marriage contracts were full as to the future property rights of the parties, sometimes even containing provisions as to a possible future divorce. Polygamy and divorce (by the husband) were per- mitted, but were rare in practice, mainly on account of the financial responsibilities which they entailed. The following examples of a marriage contract and a divorce letter have been preserved : 2 ' 'Remu, the son of Sanhatu, has taken in marriage, Bastu, the daughter of priestess of Samas, Belisumu, the daughter of Uzibitu. shekels of silver is her gift; since she (i. e., the mother), has received it, she is content. If Bastu says to Remu, her husband, * Meisner, op. cit., p. 71. See also Lee's Historical Jurisprudence, Part I, Chapter I. THE LAW O^ BABYLONIA. 35 'thou art not my husband/ then shall she be * * * and thrown into the water. If Remu says to Bastu, his wife, 'thou art not my wife,' he will give her ten shekels of silver as her quit-money." ' 'Samas-rabi has put Naramtu away. She bears her ziku (?) and has received her quit-money. If Naramtu is married to another, Samas-rabi will not love her more." (Followed by oath, date and wit- nesses.) The position of a married woman under the Babylonian law was an extremely anomalous one. Her control over her property was perhaps greater than can be found under the laws of any other nation, until the changes made during the present generation. Towards her children also she stood in a position of great dignity. She was, however, personally almost the slave of her husband. The power of a father over his children was great, but not equal to that belonging to the father under the Roman law. Adoption was recognized and be- came quite common, as did also the emancipation of children. SECTION 5. REAL AND PERSONAL PROPERTY. The Babylonian law clearly distinguished between real and personal property, or perhaps better, between movable and immovable property. Land was only transferred by written deeds and a complicated system of conveyancing grew up. One striking peculiarity of the Babylonian law of conveyancing was the right which the vendor had at any time to repurchase his land at the original purchase price. This must have had the effect to greatly unsettle titles. This right, however, could be expressly waived in the deed, at the 36 LEGAL HISTORY. time the sale was made, and we may presume that this was the customary procedure. Mortgages of land as security for loans were very common. One kind of a mortgage was in the form of a sale, but with a reservation of title in the vendor until a breach of the terms of the agreement. The antichretic mortgage was the exchange of the use of the land for the use of the money. It was in substance the same as the "Welsh Mortgage" of the common law. Personal property was naturally of great impor- tance in such a commercial nation as Babylon. No particular form of sale was required, possession being prima facie evidence of ownership. On this point we see this system of law much in advance either of the early Roman law, or the early common law. Slaves were one species of recognized personal property, but slaves were not numerous. The Babylonian law never recognized the right of a person to dispose of his property, either real or personal, by will. Every property owner, however, had the full right of disposition of property during his lifetime, and could annex to a deed of gift, the reser- vation of a life interest in himself. By this method the object of a will could be accomplished. SECTION 6. CONTRACT LAW. The Babylonian law of Contracts was the first highly developed system on this branch of jurispru- dence in the history of the world. Many formalities were required in the making of contracts. The lack of slaves in the country made the creation of the relation of master and servant an important branch of contracts. The time of these contracts were THE LAW OF BABYLONIA. 37 generally for one year, and an advance payment was customarily paid to the servant. The laborer acted as a free agent in making the contract, but the law was strict in enforcing them, and an attempt to avoid their performance on the part of servants met with severe penalties. Partnerships were common, and the law of partner- ship was very complete. Future as well as present transactions could be made the subject of contract. SECTION 7. BANKING AND ADMIRALTY LAW. Banking was a recognized business in Babylon. This business was probably mainly in the hands of the priesthood. The banker was considered in the light of an agent or intermediary, borrowing money, not for himself, but for a third party. The taking of interest was allowed by law and the rate of interest was high. Twenty per cent, was the ordinary interest on a loan of money; when, as often happened, grain was lent to be repaid by grain, the rate would be much higher. Many of the loans made by Babylonian bankers were upon the security of ships or cargoes, and we see here the beginnings of some of the existing principles of the modern law on this subject. The idea of the "bottomry" bond by which the lender, in consideration of an extra high rate of interest, loses his principal if the ship be lost, was recognized by the Babylonians. This perhaps represents the legal principle with the longest unbroken history. CHAPTER II. THE LAW OF GREECE. SECTION 8. GREECE'S PLACE IN THE HISTORY OP LEGAL DEVELOPMENT. The position occupied by Greece in the legal history of the world is far less important than in most branches of intellectual activity. The Greeks were never great law-makers. What work was done by this people in the development of the law, was in the role of conservators and transmitters rather than origina- tors. Very little that originated in Greece has had any appreciable effect upon the later course of the world's laws; but Greece rendered an important service by receiving from Babylonia and the East much of what was best of their systems of jurisprudence and pre- serving this store for the nations who were to come later. Thus while Greece cannot rank with Babylonia and Rome as a great law-developing nation, still her work in this direction cannot be passed over in absolute silence in a work on Legal History. It was particularly by Rome that Grecian influence was felt, and Roman law-makers drew largely from Greece, for the materials for the jus gentium. What they received, however, was rather the work of Baby- lonian than Grecian legislators. Grecian philosophers, in fact, influenced Roman law more than Grecian law- makers. In the study of Grecian laws, and public institu- tions, a difficulty is met at the threshold in the fact 39 40 LEGAL HISTORY. that ancient Greece during the days of her independence was never one country. The political subdivisions of Greece were generally small and their number large. The highest stage of development in law as in other lines was reached by Athens and it is her law which is mainly discussed in this chapter. SECTION 9. PUBLIC LAW. Every form of government existed among the various states into which Greece was divided. Nearly all of the Grecian states seem to have passed through three stages, and to have been in turn monarchies, oli- garchies and democracies. The Greek kingship displayed many peculiarities. Their conception of a King, perhaps, might be best described as the combination of the attributes of the father of a large family, and the representative of the Gods. Religion and government were ever closely associated with the Greeks, and the laws of the King were in early times held to be the utterances of the Gods speaking through a human medium. The oligarchies, which followed the mon- archies, bore more hardly on the people than the rule of the kings had. The oligarchies were in general short lived and during the period of Grecian history most of the states were democracies, Sparta being the only important city to retain the kingly office, and even here the kings were mere figureheads and the important officers were elected. Sparta, in fact, repre- sented the nearest approach to socialism ever put into successful operation. In theory complete equality of property existed among all Spartans, but under them appeared a large conquered population, reduced to the position of serfs and governed with the greatest severity. In Athens also we see a free and cultured class of THE LAW OF GREECE. 41 citizens living among a body of slaves who outnumbered them, during the period of their greatest prosperity, nearly ten to one. Among the Athenians themselves, democracy was carried to the extreme point. The equality of all citizens was emphasized by the pro- visions for the choice of nearly all the public officials by lot. Legislative matters concerning the affairs of the State were passed upon by popular general assemblies where Athenian oratory reached its highest development. SECTION 10. ADJECTIVE LAW. Methods of court procedure differed among the several Grecian States no less than their various sys- tems of government. Private suits were almost un- known in Sparta. The so-called laws of Lycurgus by their provisions for the community of property did away, in the main, with courts and lawyers. There were no regular courts, in the ordinary sense of the term, hi that city. The adjective law of Athens, on the contrary, was highly developed. The course of procedure in an Athenian law suit was divided into five stages ; 1st, the summons, 2nd, the appearance, 3rd, the preliminary hearing, 4th, the trial and, 5th, the judgment. The summons could be served by the plaintiff in person, who under certain circumstances could arrest the defendant. If upon being served the defendant failed to appear before the magistrate, he was defaulted. If the defendant appeared, it seems that the plaintiff must show that he had a good cause of action in order to have the case entered upon the docket of cases. If this was done the day of the preliminary hearing was determined by lot. This so-called preliminary hearing was the real trial. At this time the pleadings, includ- 42 LEGAL HISTORY. ing those in cross-actions, were filed, and witnesses were examined. The Athenians had established rules as to the competency of witnesses. Neither close friends or known enemies of either party could testify. If the testimony at this preliminary hearing was over- whelming in favor of either side, the judge could decide the case. In general, however, he merely prepared a report to be submitted at the final trial before the dicastery. The dicastery was in a sense a jury, consisting of a large but variable number of members. Several hundred might sit in the trial of a case. This trial was merely a display of oratory. The dicastery voted twice; first as to the merits of the case, and next as to the amount of damages. The vote of a majority con- trolled. The execution of a judgment, as under the laws of most ancient countries, was mainly left to the exertions of the successful party himself. SECTION 11. SUBSTANTIVE LAW. The Greek laws from the earliest time prohibited polygamy, but sanctioned open concubinage. In Sparta the form of marriage was one of capture, in Athens that of a purchase; the former was a fiction, the latter a reality. The position of the wife in the household was a very low one except in Sparta. Divorce was freely permitted to the husband and under strict conditions to the wife. The commercial law of the Greeks was mainly borrowed from the Babylonians through the Phoeni- cians. The criminal law differed greatly among the different states. The writings and speculations of the Greek philos- ophers on the science of law and government which was later to have such a great influence upon Roman law, had very little effect upon that of their own country. CHAPTER III. ROMAN LAW. SECTION 12. IMPORTANCE OF THE STUDY OF ROMAN LAW. It would be hard to over-estimate the influence which Roman jurisprudence has exerted upon the legal history of the world. Rome's place in history is mainly based upon her two Titanic creations the Roman Empire and the Roman Law. The first has long since fallen and lives only in history; the second, reaching its highest development only after the fall of the Western Empire, surviving the Teutonic con- quests, and aiding in the civilization of the barbaric destroyers of the Empire, has year by year and century by century, increased its power and influence, until to-day it serves as the basis of practically all the legal system of two continents and of many of those of three others. Never losing its hold upon the territory of the old Roman provinces of Europe, it gradually worked its way to the north and east over practically the whole of this continent, meeting determined re- sistance only when it attempted to cross the channel to the British Isles. A few centuries later, in the colonizing movements which marked the dawn of modern history, it was carried over the seas and spread, not only over the greater part of the Americas, but also over portions of the old continents of Africa and Asia and even to the far off Philippine Islands. Even in our day we can see its constantly spreading 48 44 LEGAL HISTORY. limits in the influence it has exerted upon the laws of the new power which has just sprung into such promin- ence on the Asiatic shores of the Pacific. Even in those countries where the Common Law of England is in force, many Roman Law principles are daily applied in the courts, although probably few judges, lawyers, or clients appreciate the fact. SECTION 13. EARLY ROME. There is little that is striking or remarkable about the early history of Rome, or that would tend to fore- shadow her future greatness. Her early institutions and history were merely a counterpart of those of hundreds of other cities of Greece and Italy. We find the same general family organization, and the same evolution of the State out of the family. As elsewhere, it is the union of families which constitute the gens or clans, the union of clans that creates the tribe, and the final union of the tribes that gives birth to the city and state. Here, too, we see the periods of the monarchy, the oligarchy and the republic. But while Rome passed through the same early stages as her neighbors, she continued to progress after they had ceased to advance. What, with the others, was the whole course of their career, was, with the future empire builder, merely a preparation for her real work. The inhabitants of early Rome presented two prominent characteristics which, as has been shown, were among the most important causes of Babylonian greatness. The Romans, throughout their history, were pre-eminently both a cosmopolitan and a com- mercial people. The union of the three tribes which created the Roman State gave a mixed Latin and Sabellian origin to the race, while Rome's reputation as an asylum for refugees from all cities and countries, ROMAN LAW. 45 was the cause of the settlement in the city of a great multitude of people of all races. Rome's situation on the Tiber was responsible for extensive commercial dealings with foreign countries, and this in turn not only broadened her citizens by contact with other races and new ideas, but also occasioned the settle- ment in Rome of many foreign merchants. The large foreign element resident in Rome was destined later to play a most important part in the political struggles of the city and the evolution of her system of laws. The Roman family was the typical Aryan family. Wife and children were alike absolutely under the control of the husband and father, who stood in the position of an absolute monarch on a small scale. In theory, at least, the father had the power of life and death over his children, even when the latter were of age. It was only on the death of the father that each son became himself the head of a family. Related families constituted the gens. In theory, all the families in each of the gens were thus related, but in reality, outside families would often be adopted. The binding ties in the gens were the common name and the com- mon worship. Religion, government and family re- lations were all inseparably connected in ancient Rome. All grew out of the structure of the typical Aryan family, with its system of ancestor worship. Marriage was originally by the confarreatio a sale accompanied with religious rites. Only the patri- cians were at first capable of contracting a legal marriage. SECTION 14. EARLY POLITICAL INSTITUTIONS. Roman history begins with the kingdom. The individual kings are legendary rather than historical 46 LEGAL HISTOEY. personages, and the whole history of this period is vague and uncertain. The overthrow of the kingdom is placed at 509 B. C., and the date may be taken as ap- proximately correct, although no credit can be given to the historical accounts of the causes for this change in government. The king was superseded by two con- suls, elected annually. These consuls possessed prac- tically all the powers formerly belonging to the kings, and were elected by the patricians from their own numbers. Only patricians were members of the only popular assembly in existence at this period, the comitia curiata. The overthrow of the kings was probably of no benefit to the lower classes of society, but almost im- mediately after this time we see the beginning of the long contest between the patricians and the plebeians. The patricians were the descendants of the early in- habitants of Rome, while the plebeians were the des- cendants of those who came later, perhaps combined with the descendants of the early slaves or serfs of the city. The internal history of Rome from the over- throw of the Tarquins in 509 B. C. to the passage of the Licinian Act in 367 B. C., mainly centers around the contest of the plebeians for political and civil rights. Starting with no political and few civil rights, we see this class emerge from the contest the equal of the patricians before the law in all respects. SECTION 15. FIRST REFORMS IN THE LAW. The creation of the comitia centuriata and the transference to it of most of the power formerly pos- sessed by the comiatia curiata marked a step away from the old line of demarcation; but as the comitia centuriata was so arranged as to give the weight of ROMAN LAW. 47 power to the richer classes, the practical benefit to the mass of the plebeians was slight. More important were the reforms of 495-94 B. C. Overawed by the famous secession of the plebeians to the sacred mount, the patricians were compelled to make concessions, and in addition, to redressing some of the existing injustices as to the division of the public lands, consented to the creation of two officers to be elected from and by the plebeians, who were to bear the title of tribunes. The particular duties of the tribunes was the protection of the ple- beians, and for this purpose they were given the right to forbid or to "veto" any act of any legislative as- sembly or any public officer. This was resorted to when there were wrongs of the plebeians to be redressed. Here we have the origin of the "veto power," so familiar to us in our constitution. By the Publilian Law passed in 471 B. C., a dis- tinctively plebeian assembly was created, called the comitia tributa. This new assembly was composed solely of plebeians who were freeholders, and thus excluded the great majority of freedmen and clients, as well as all the patricians; the clients of patrician families, how- ever, voted in these assemblies, and thus enabled the nobility to exercise no small influence on the result. The Publilian law increased the number of tribunes to five (a little later it was increased to ten), and trans- fered their election to the new comitia tributa. The general legislative power of this assembly was at first small, but it later acquired jurisdiction over all classes of subjects. One great evil which remained untouched by the reforms already referred to, arose out of the fact that not only was the administration of justice entirely in the hands of the patricians, but the members of this 48 LEGAL HISTORY. class were also the only persons having any knowledge as to what the law was, and great pains were taken to guard this knowledge from the plebeians. The in- justices springing from such an arrangement were so great that in 451 B. C., ten men, known as the decem- virs, were elected to draw up a codification of the Ro- man Law. SECTION 16. THE LAW OF THE TWELVE TABLES. The decemvirs were not only authorized to draw up a new system of laws for the city, but were also intrusted with all governmental powers while they were engaged in this work. The offices of consul, tribune, etc., were temporarily suspended. Plebeians were eligible for office of decemvir. Ten so-called tables of laws were completed the first year and were engraved on metallic tables and set up in the forum. The work of the decemvirs was not considered complete, however, and a second set were elected for another year. The product of their work was the last two of the twelve tables. The decemvirs were overthrown by force before completion of this second year. The exact causes and details of this event are unknown. The twelve tables contained little that was new in the law. Their importance lay in the fact that the law was now known and the officials were obliged to follow a known system instead of deciding cases ac- cording to their own caprice. A copy of the provisions of the twelve tables which are still preserved, is con- tained in Appendix B of this volume. SECTION 17. CONTEST BETWEEN PATRICIANS AND PLEBEIANS. Additional rights for the plebeians were secured the following year by the Valerio-Horatian laws, sometimes called the Magna Charta of Rome. By ROMAN LAW. 49 these laws, a right of appeal was given from the de- cisions of all officials, the tribunes could assess fines of any amount, subject to the approval of the comitia tributa; the tribunes were also allowed to sit on a bench at the door of the senate house; and the manage- ment of the public funds were taken away from the consuls and given to two new officials, called quaestors, who were chosen by the whole body of freeholders. At first quaestors were chosen exclusively from the patricians, but in 421 B. C., plebeians were made eligible for this office. The greatest of all triumphs obtained by the plebeians was by the passage of the Licinian Act in 367 B. C., after a long struggle of eleven years. By this act it was provided that one consul must be a plebeian, the use of the public lands was again re- formed, plebeians were made eligible to one of the sacred colleges, and a new officer known as a praetor, or judge, was created. The plebeians were still ex- cluded from holding a few offices, but these were gradually one by one thrown open to them, until the two orders were on a complete political equality. Scarcely had the long contest between patricians and plebeians, terminated, however, when a new and more permanent dividing line appeared, in the distinction between rich and poor. SECTION 18. LEGIS ACTIONIS. The early Roman legal actions were elaborate and symbolic. The important forms of actions were four in number: (1) legis actio per sacramentum; (2) legis actio per judicis postulationem; (3) legis actio per manus inter jectionem, and (4) legis actio per pignoris capionem. Vol. 14. 50 LEGAL HISTORY. The legis actio per sacramentum was an elaborate mock battle for the possessions of the article in dispute, accompanied by each party putting up a certain sum as a wager, known as a sacramentum, as to the justness of his side of the controversy. A judex was appointed to hear the case, and the form of his decision was as to the sacramentum, the winning party receiving back his sacramentum, while that of the losing party went to the State in the nature of court costs. The decision as to the sacramentum, of course, carried with it the decision of the real question in issue. The actio per judicis postulationem was a later action than that per sacramentum, and possessed many advantages over it. There was no sacramentum required, the demand need not necessarily be for a fixed sum, and there was no fixed minimum amount which must be involved. The case was decided by arbitrators appointed by the magistrate. The two remaining forms of legis actiones, were rather forms of execution than of law suits. Under that of per manus injectionem, either the property or the person of the debtor could be taken to satisfy the debt. The laws governing the sale into slavery of an insolvent debtor were at first very harsh, but were later greatly modified. The action per pignoris capi- onem, corresponded roughly to the common law action of distress and was only allowed in a few cases. SECTION 19. EARLY CONTRACT LAW. The making of contracts at Rome, during the early period, was always accompanied with many formalities. A sale could only be made in the presence of five Roman citizens as witnesses, the amount to be paid was weighed out by an official weigher, and the ROMAN LAW. 51 purchaser could then take possession. Similar for- malities were observed in the creation of a loan, the borrower declaring himself to be indebted for the sum weighed out. An outgrowth of the same system was the marriage by coemptio, which first rendered legal marriage among plebeians possible. The brief description of the Roman law given in the last few sections show the early legal conceptions of this people to have been very crude and little suited to serve as the foundation upon which to build a world- wide system of jurisprudence. As a matter of fact, this early system played little or no part in the after development of Roman law. During the latter period of the Republic a new system of jurisprudence gradu- ally grew up in Rome, which was destined in time to. supplant the older legal conceptions and to serve as the basis for that Roman law which has come down to modern times. It is necessary, therefore, to turn to the history of the origin and development of this second system of jurisprudence, known as the jus gentium. SECTION 20. Jus GENTIUM. The belief in the superiority of one's own race, over all the other peoples of the world, is one which we find firmly imbedded in the minds of the inhabitants of all countries, both ancient and modern. This belief in the superiority of the race includes the belief in the great superiority of its laws, customs, and institu- tions. While this feeling is found with perhaps equal intensity among the nations of ancient and those of modern times, still the effect which it has had upon the people of the two periods has been strikingly different. In modern times its influence has taken the direction of developing the belief in what Kipling has denom- 52 LEGAL HISTORY. inated "the White man's burden," the tenet of which may be described as being a belief that it is the duty of those races possessed of higher laws to force them upon all so-called inferior races, either with or against their will, and that such races are sufficiently recompensed by the great gain from such laws and institutions, for any such minor losses they may incur, as the loss of their land or other property. The same underlying ideas had an almost diametrically opposite effect upon an- cient races. In the eyes of all ancient nations their own laws and institutions possessed such peculiar and superior merit that no other race or people were worthy of them. Each race therefore jealously guarded its own laws to such a degree as to refuse to allow them to govern foreigners living in their very midst and under their jurisdiction. This principle of the racial rather than the territorial jurisdiction of laws, in fact, con- tinued among many races almost down to the close of the middle ages. The number of foreigners settled at Rome, for commercial or other purposes, made the question, as to the laws to govern litigation affecting resident foreigners, a most important one. This was recognized at an early period by the appointment of a new officer, the praetor peregrinus, to whom was assigned all cases between foreigners, or between a foreigner and a Roman, while suits between Roman citizens were left to the praetor urbanus. The praetor peregrinus was at once confronted with the question as to what system of laws to use to settle controversies which came before him. If both the litigants were citizens of the same country the laws of that country would be applied, but in the majority of these cases arising in cosmopolitan Rome, the suitors would be of different races. ROMAN LAW. 53 Under these circumstances the idea of a jus gentium, or a general law of nations occurred to the praetors. The original theory upon which this system of laws was built was that there are certain rules and principles which are common to the laws of all coun- tries, and that if these could be collected together and codified a system would result which could properly be applied in the settlement of disputes between citizens of any countries. Starting from this proposi- tion the praetors set to work to develop the famous jus gentium. From the outset, however, the praetors were endeavoring to ascertain not what was common to the laws of other nations, but rather what was best among them, and to supplement any omissions in the system, by their own legislation. Many of the ablest lawyers of Rome seemed to have served as praetor peregrinus, and a system was soon developed which in all respects surpassed any of the contemporaneous sys- tems of jurisprudence. The jus gentium, as already stated, was created for the settlement of the controversies between foreign- ers, and was at first strictly limited to cases of this character. Gradually, however, the Roman citizens awoke to the fact that two systems of laws were being enforced in their territory, a superior and inferior one, and that they were carefully guarding the inferior system for themselves, and reserving the superior one for the despised foreigners. Shortly after this we find the distinctions between the two broken down, and the jus gentium furnishing the basis for a new and still greater system of Roman jurisprudence. SECTION 21. THE EMPIRE. Many causes contributed to bring about the fall of the Roman Republic in the first century before 54 LEGAL HISTORY. Christ. The vast extension of territory rendered the system of popular government inadequate for existing conditions, and the development of the idea of an elected representative government (the only system which ren- ders a free government over a large area possible) was still thirteen centuries in the future. A second great cause was the vast inequalities of wealth which arose in Rome, and all efforts to remedy which, met with com- plete failure. From the time of the fall of the Gracchi, and the failure of their proposed reforms, the fate of the Republic was settled, although its final overthrow was postponed for two generations. The changes which created the empire were greater in reality than in theory, the early Emperors were life consuls and life praetors, and retained most of the old offices and popular assemblies, long after their independence and real authority had passed away. SECTION 22. THE CONSTITUTIONS. The old popular assemblies for a period after the establishment of the Empire still went through the form of passing acts, which had been prepared by the real governing power, but in addition to this the Emperor was given the power of direct legislation by his own authority. Laws which owed their force to the authority of the Emperor were known as Constitutiones and may be divided into four principal classes, as follows : 1. "Edicts, which were public ordinances, of universal application throughout the Empire. These had the authority of laws, inasmuch as they were generally enforced and applied to all. In the earlier reigns they were frequently renewed, and they derived their authority from the Emperor as the praetorian ROMAN LAW. 55 edict did from the praetor. Gradually they came to be held as permanently binding the real ground of their permanent force, custom was overlooked, and the imperial authority was regarded as such ground. 2. "Decrees, which were decisions in judicial cases brought before the Emperor as final court of appeal. Inasmuch as they were interpretations of the law, they were regarded as binding upon all courts. 3. "Rescripts, which were decisions upon ques- tions of law submitted by courts and private persons. They were closely connected with the pontificial interpretations. 4. "Mandates, which were directions to officials in the exercise of their offices. These, by repetition in the various instructions sent out from time to time by the Emperor, became a source of general law. They were theoretically in force only during the life- time of the Emperor from whom they proceeded; but they became of permanent force because of repetition and custom." 1 SECTION 23. Jus RESPONDENDI. A very unusual source of laws which grew into prominence during the period of the early empire is found in the jus respondendi of the jurisconsults. The jurisconsults, were leading lawyers to whom the Emperor as a recognition of their ability, gave the right of having their replies on legal questions cited in court as authority on the questions involved. Per- haps at no other time in the history of the world were the honors which could be won by lawyers, through scholarship and ability in their profession, so great as 1 Lee's Historical Jurisprudence. 56 LEGAL HISTOEY. during the period of the Roman Empire, but the highest of all honors open to the members of this profession was that of the jus respondendi. SECTION 24. ROMAN LAW WRITERS. Out of the ranks of the jurisconsults came the great Roman law writers. The Roman jurists of the early empire were divided into two schools, originating in the teachings of two professors of law of the second century. Labeo was the founder of the school of the Proculians, named after the most distinguished pupil of the founder, instead of after Labeo himself. This school was conservative in its tendencies and strove to maintain the letter of the law. The Sabinians on the contrary fought against the formalism of the law, but the result of their views were to establish more firmly the despotism of the Emperor. This school also was named, not after its founder Capito, but after his successor Sabinius. The final victory rested with the Sabinians. The main importance of the Roman law writers of this period lies in the fact that it was from their works that the Codes were later to be compiled. The highest place among these writers is conceded to Papinian who lived during the latter part of the second and the early part of the third centuries. The fate of this great jurist was a tragic one. Being ordered by the Emperor Caracalla to prepare a speech in defense of the former's murder of his brother Geta, he replied that it was easier to commit such an act than to defend it, and was himself murdered by the order of the tyrant. Among the other great Roman law writers may be mentioned Gaius, Paul, Ulpian, Julianus, Scaevola, and Modestine. ROMAN LAW. 57 SECTION 25. THE CODES. The codification of the Roman law began near the beginning of the third century. The great number of jurisconsults who had been writing during the previous two centuries made some compilation of these writings a necessity if the full benefit of this wealth of material was to be obtained. The earliest codes were those of Gregorianus and Hermogenianus. Only fragments of these codes have been preserved and the importance of these codes lies mainly in the fact that they were the pioneers in this new field. SECTION 26. THE THEODOSIAN CODE. The first great code was that drawn up by a com- mission appointed by Theodosius II in the year 435. The work was completed in 438 and comprised all the leges generates since the time of Constantine the Great. This Code was declared in force in both the Western and Eastern Empires. The arrangement of the Code is far inferior to that of its successor, the Justinian Code. In the East the Theodosian Code remained in force until supplanted by the Justinian Code in the sixth century. In the West it survived the fall of Rome and largely served as a basis for the Romano- Barbarian Codes. SECTION 27. JUSTINIAN. The final culmination of Roman law is found in the Code of Justinian. Justinian, after whom the code takes its name, ascended the throne of the Eastern Empire in 527, and the following year took steps for a new and more complete codification of the great body of Roman law. The ablest and most famous discussion of this work is that contained in the forty-fourth chapter of Gibbon's "Decline and Fall of the Roman 58 LEGAL HISTORY. Empire, " from which the following extracts have been selected : ' 'The vain titles of the victories of Justinian are crumbled into dust; but the name of the legislator is inscribed on a fair and everlasting monument. Un- der his reign, and by his care, the civil jurisprudence was digested in the immortal works of the Code, the Pandects, and the Institutes: the public reason of the Romans has been silently or studiously transfused into the domestic institutions of Europe, and the laws of Justinian still command the respect or obedience of independent nations. * * * "In the first year of his reign, he directed the faithful Tribonian, and nine learned associates, to revise the ordinances of his predecessors, as they were contained, since the time of Adrian, in the Gregorian, Hennogenian, and Theodosian codes; to purge the errors and contradictions, to retrench whatever was obsolete or superfluous, and to select the wise and salutary laws best adapted to the practice of the tri- bunals and the use of his subjects. The work was accomplished in fourteen months; and the twelve books or tables, which the new decemvirs produced, might be designed to imitate the labors of their Roman predecessors. The new Code of Justinian was honored with his name, and confirmed by his royal signature; authentic transcripts were multiplied by the pens of notaries and scribes; they were transmitted to the magistrates of the European, the Asiatic, and after- wards the African provinces; and the law of the Em- pire was proclaimed on solemn festivals at the doors of churches. A more arduous operation was still behind to extract the spirit of jurisprudence from the decisions and conjectures, the questions and dis- putes of the Roman civilians. Seventeen lawyers, ROMAN LAW. 59 with Tribonian at their head, were appointed by the Emperor to exercise an absolute jurisdiction over the works of their predecessors. If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence, and the rapid composition of the Digest or Pandects, in three years, will deserve praise or censure, according to the merit of the execu- tion. From the library of Tribonian, they chose forty, the most eminent civilians of former times; 2,000 treatises were comprised in an abridgment of fifty books; and it has been carefully recorded, that three millions of lines or sentences were reduced, in this ab- stract, to the moderate number of 150,000. The edition of this great work was delayed a month after that of the Institutes; and it seemed reasonable that the elements should precede the digest of the Roman law. As soon as the Emperor had approved their labors, he ratified, by his legislative power, the specula- tions of these private citizens; their commentaries on the twelve tables, the perpetual edict, the laws of the people and the decrees of the senate, succeeded to the authority of the text; and the text was abandoned as a useless, though venerable relic of antiquity. The Code, the Pandects, and the Institutes, were declared to be the legitimate system of civil jurisprudence ; they alone were admitted in the tribunals, and they alone were taught in the academies of Rome, Constantinople, and Berytus. Justinian addressed to the senate and provinces his eternal oracles; and his pride, under the mask of piety, ascribed the consummation of this great design to the support and inspiration of the Deity. "Since the Emperor declined the fame and envy of original composition, we can only require at his hands, method, choice, and fidelity, the humble, though indispensable virtues of a compiler. Among 60 LEGAL HISTORY. the various combinations of ideas, it is difficult to assign any reasonable preference; but as the order of Justinian is different in his three works, it is possible that all may be wrong; and it is certain that two cannot be right. In the selection of ancient laws, he seems to have viewed his predecessors without jealousy, and with equal regard; the series could not ascend above the reign of Adrian and the narrow distinction of Paganism and Christianity, introduced by the super- stition of Theodosius, had been abolished by the con- sent of mankind. But the jurisprudence of the Pan- dects is circumscribed within a period of 100 years, from the perpetual edict, to the death of Severus Alexander; the civilians who lived under the first Caesars are seldom permitted to speak, and only three names can be attributed to the age of the republic. The favorite of Justinian (it has been fiercely urged) was fearful of encountering the light of freedom and the gravity of Roman sages. Tribonian condemned to oblivion the genuine and native wisdom of Cato, the Scaevolas, and Sulpicius; while he invoked spirits more congenial to his own, the Syrians, Greeks, and Africans, who flocked to the Imperial court to study Latin as a foreign tongue, and jurisprudence as a lucra- tive profession. But the ministers of Justinian were instructed to labor, not for the curiosity of antiquari- ans, but for the immediate benefit of his subjects. It was their duty to select the useful and practical parts of the Roman law; and the writings of the old republi- cans, however curious or excellent, were no longer suited to the new system of manners, religion, and government. Perhaps, if the preceptors and friends of Cicero were still alive, our candor would acknowledge, that, except in purity of language, their intrinsic merit ROMAN LAW. 61 was excelled by the school of Papinian and Ulpian. The science of the laws is the slow growth of time and experience, and the advantage both of method and materials, is naturally assumed by the most recent authors. The civilians of the reign of the Antonines had studied the works of their predecessors; their philosophic spirit had mitigated the rigor of antiquity, simplified the forms of proceeding, and emerged from the jealousy and prejudice of the rival sects. The choice of the authorities that compose the Pandects depended on the judgment of Tribonian; but the power of his sovereign could not absolve him from the sacred obligations of truth and fidelity. As the legislator of the empire, Justinian might repeal the acts of the Antonines, or condemn, as seditious, the free princi- ples which were maintained by the last of the Roman lawyers. But the existence of past facts is placed beyond the reach of despotism; and the Emperor was guilty of fraud and forgery, when he corrupted the integrity of their text, inscribed with their venerable names the words and ideas of his servile reign, and sup- pressed, by the hand of power, the pure and authentic copies of their sentiments. The changes and inter- polations of Tribonian and his colleagues are excused by the pretence of uniformity; but their cares have been insufficient and the antinomies, or contradictions of the Code and Pandects still exercise the patience and subtlety of modern civilians. "It is the first care of a reformer to prevent any future reformation. To maintain the text of the Pandects, the Institutes, and the Code, the use of ciphers and abbreviations was rigorously proscribed; and as Justinian recollected, that the perpetual edict had been buried under the weight of commentators, 62 LEGAL HISTORY. he denounced the punishment of forgery against the rash civilians who should presume to interpret or per- vert the will of their sovereign. The scholars of Ac- cursius, of Bartolus, of Cujacius, should blush for their accumulated guilt, unless they dare to dispute his right of binding the authority of his successors, and the native freedom of the mind. But the Emperor was unable to fix his own inconstancy; and, while he boasted of renewing the exchange of Diomede, of trans- muting brass into gold, discovered the necessity of purifying his gold from the mixture of baser alloy. Six years had not elapsed from the publication of the Code before he condemned the imperfect attempt, by a new and more accurate addition of the same work; which he enriched with 200 of his own laws, and fifty decisions on the darkest and most intricate points of jurisprudence. Every year, or according to Procopius, each day of his reign, was marked by some legal inno- vation. Many of his acts were rescinded by himself; many were rejected by his successors; many have been obliterated by tune; but the number of sixteen Edicts, and 168 Novels, has been admitted into the authentic body of the civil jurisprudence. In the opinion of a philosopher superior to the prejudices of his profession, these incessant, and for the most part, trifling altera- tions, can be only explained by the venal spirit of a prince, who sold without shame his judgments and his laws. The charge of the secret historian is indeed explicit and vehement; but the sole instance which he produces, may be ascribed to the devotion as well as to the avarice of Justinian. A wealthy bigot had bequeathed his inheritance to the church of Emesa; and its value was enhanced by the dexterity of an artist, who subscribed confessions of debt and promises ROMAN LAW. 63 of payment with the names of the richest Syrians. They pleaded the established prescription of thirty or forty years, but their defense was overruled by a retro- spective edict, which extended the claims of the church to the term of a century; an edict so pregnant with injustice and disorder that, after serving this occasional purpose, it was prudently abolished in the same reign. If candor will acquit the Emperor him- self, and transfer his corruption to his wife and favor- ites, the suspicion of so foul a vice must still degrade the majesty of his laws ; and the advocates of Justinian may acknowledge, that such levity, whatsoever be the motive, is unworthy of a legislator and a man. "Monarchs seldom condescend to become the pre- ceptors of their subjects; and some praise is due to Justinian, by whose command an ample system was reduced to a short and elementary treatise. Among the various institutes of the Roman law, those of Caius were the most popular in the East and West; and their use may be considered as an evidence of their merit. They were selected by the Imperial delegates, Tribon- ian, Theophilus, and Dorotheus, and the freedom and purity of the Antonines was incrusted with the coarser materials of a degenerate age. The same volume which introduced the youth of Rome, Con- stantinople, and Berytus, to the gradual study of the Code and Pandects, is still precious to the historian, the philosopher, and the magistrate. The Institutes of Justinian are divided into four books : they proceed, with no contemptible method, from I. 'Persons', to II. Things', and from things to III. 'Actions'; and the Article IV of 'Private Wrongs', is terminated by the principles of 'Criminal Law.' "The penal statutes form a very small proper- 64 LEGAL HISTORY. tion of the sixty-two books of the Code and Pandects; and in all judicial proceedings, the life or death of a citizen is determined with less caution or delay than the most ordinary question of covenant or inheritance. This singular distinction, though something may be allowed for the urgent necessity of defending the peace of society, is derived from the nature of criminal and civil jurisprudence. Our duties to the State are simple and uniform; the law by which he is condemned in inscribed not only on brass or marble, but on the conscience of the offender, and his guilt is commonly proved by the testimony of a single fact. But our relations to each other are various and infinite; our obligations are created, annulled, and modified by injuries, benefits and promises; and the interpretation of voluntary contracts and testaments, which are often dictated by fraud or ignorance, affords a long and laborious exercise to the sagacity of the judge. The business of life is multiplied by the extent of commerce and dominion, and the residence of the parties in the distant provinces of an empire is productive of doubt, delay, and inevitable appeals from the local to the supreme magistrate. Justinian, the Greek Emperor of Constantinople and the East, was the legal successor of the Latian shepherd who had planted a colony on the banks of the Tiber. In a period of 1,300 years, the laws had reluctantly followed the changes of government and manners; and the laudable desire of conciliating ancient names with recent institutions destroyed the harmony and swelled the magnitude of the obscure and irregular system. The laws which excuse, on any occasions, the ignorance of their sub- jects, confess their own imperfections; the civil juris- prudence, as it was abridged by Justinian, still con- ROMAN LAW. 65 tinued a mysterious science, and a profitable trade, and the innate perplexity of the study was involved in tenfold darkness by the private industry of the practitioners. The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only to increase the influence of the rich, and to aggravate the misery of the poor. By these dilatory and expensive proceedings, the wealthy pleader ob- tains a more certain advantage than he could hope from the accidental corruption of his judge. The experience of an abuse, from which our own age and country are not perfectly exempt, may sometimes provoke a generous indignation, and extort the hasty wish of exchanging our elaborate jurisprudence for the simple and summary decrees of a Turkish cadhi. Our calmer reflection will suggest, that such forms and delays are necessary to guard the person ,and property of the citizen; that the discretion of the judge is the first engine of tyranny; and that the laws of a free people should foresee and determine every question that may probably arise in the exercise of power and the transactions of industry. But the government of Justinian united the evils of liberty and servitude; and the Romans were oppressed at the same time by the multiplicity of their laws and the arbitrary will of their master." Vol. 15. CHAPTER IV. OUTGROWTHS OF ROMAN LAW. SECTION 28. THE FALL OF ROME. The final overthrow of the Western Roman Em- pire occurred in the year 476, but for the century pre- ceding this date the empire had existed merely as a shadow of its former self. On more than one occasion the ancient capital of the world was taken and plund- ered by barbaric invaders, and one by one the prov- inces of the empire became the prey and new seats of power of various Teutonic tribes. Roman institutions, including Roman law, had been too long and too firmly planted in these provinces, however, to be en- tirely obliterated, by such conquests. Except in the case of Britain, the conquering race merely settled down as the ruling class amidst the great mass of the old inhabitants of the region; and by their greater numbers and their higher civilization, the conquered gradually impressed their institutions and laws upon their conquerors. SECTION 29. THE BARBARIAN CODES. The century which followed the fall of the Western Roman Empire witnessed the development of a large number of Romano-Barbarian codes, based in varying degrees upon Roman law and Teutonic customs. Roughly speaking, it might be said that the law of property in these codes was, in the main, Roman, while the law of persons was, in the main, Teutonic. 67 68 LEGAL HISTORY. "The codes of principal historic interest are the following: of the Ostrogoths, the Edictum Theodorici; of the Franks, the Lex Salica, the Lex Ripuaria, and the Lex Francorum Chamarvorum; of the Visigoths, the Lex Visigothorum (in two codes, one known as Forum .Judicum and J^dioum Liber, intended for the barbarians ; and the other as Lex Romana, also known as Liber Legum, Liber Legum Romanorum, Lex Theodosii, and best known as Breviarium Alarici, intended for the Roman inhabitants); and of the Burgundians, likewise in two codes, the Lex Gundo- bada for the Burgundian invaders, and the Lex Romana Burgundiorum, known also as Papianus. In addition to these have been preserved many early laws, some which had been digested in the form of a code. Among these are the codes of the Alamanni, the Saxons, Frisians, the Thuringians, the Bavarians, the Anglo-Saxons, and the Lombards, and in the case of Celtic tribes, the Welsh laws, and the ancient Brehon law of Ireland." 1 The code showing the least Roman influence was the Lex Salica; while the one which most closely fol- lowed the Roman law was the Ostrogothic Code of Theodoric. These Teutonic codes were, without ex- ception, racial in their application instead of territorial. In this respect we see a reversion to the conditions existing in Rome prior to the triumph of the jus gentium. SECTION 30. RENEWED STUDY OF THE ROMAN LAW. The twelfth century marked a wonderful revival in the study of the Roman law. This revival centered around the law schools of the Italian universities, to 1 Lee's Historical Jurisprudence, p. 386. OUTGROWTHS OF ROMAN LAW. 69 which students flocked from all parts of Europe. The most famous of all these schools were those at Bologna. To give to these Italian schools a practical monopoly of this instruction the teaching of civil law at the University of Paris w r as prohibited by a papal bull. So great did the interest in this study during this century become, that it was feared by some that all other forms of study were to suffer in consequence. Nor was this movement entirely theoretical, its pract- ical side was shown by the rapid changes in the laws throughout western Europe, changes seeking to in- corporate into these legal systems the old established principles of Roman law. SECTION 31. THE CIVIL LAW. No European country, however, could adopt the code of Theodosian or Justinian in its entirety. In the rapid changes in human life and institutions laws cannot remain stationary, but must advance to meet new conditions. What was therefore adopted by the European countries of this period was not the Roman law, but a new and modern system based upon it, to which the name of the Civil Law came to be applied. The development of this law, like the work of the formation of the Roman Codes, was the work rather of the law schools than of the law making powers of the State. Early in the twelfth century the gloss to the Corpus Juris Civilis was produced at Bologna, and the glosses of the various law professors soon grew to an enormous volume. Finally, a digest of the various earlier glosses was completed by Accursius and his sons, which acquired such reputation that for a time it became accepted as the highest of all legal authority. The Civil Law took various forms in the different 70 LEGAL HISTORY. countries, but in all it retained, and has retained down to the present day, a firm foundation of legal rules and conceptions taken from the Roman law principles of the time of the highest development of that wonder- ful system of jurisprudence. SECTION 32. THE CANON LAW. By the side of the Civil Law, there grew up a second system of laws, known as the Canon Law. The development of the Canon Law dates from about the fourth century, and was the work of the Western Church. The sources of this law were the canons of the church synods, the decretals of the popes, supple- mented by the incorporation of many Roman law principles. A number of codes or compilations of canons and decretals were made, beginning near the close of the fifth century, but the first satisfactory treatise on the whole subject was only completed about the year 1150 by Gratian, a monk and a pro- fessor of Canon law at the University of Bologna. This work was generally known either as the Decretum or the Corpus Juris Canonici. The work of Gratian soon became antiquated, and a number of new works on the subject followed each other in rapid succession. The first great official collection was published in 1234, under the authority of Pope Gregory IX. A second official collection of church laws was made under Pope Boniface VIII, and a third under Clement V. These three collections, together with the Decretum Gratiani, became the basis of Canon Law. The Canon Law early became a distinct system of jurisprudence, with ecclesiastical courts for its enforcement throughout all western Europe. OUTGROWTHS OF EOMAN LAW. 71 SECTION 33. EXTENT OF THE JURISDICTION OF THE CANON LAW. The Canon Law, besides controlling the govern- ment and organization of the church, was also con- cerned with ecclesiastical property and the cure of souls. These courts derived their jurisdiction from the church and not from the country in which they were located, and often came into conflict with the national courts and government. The ecclesiastical courts were always anxious to increase their jurisdic- tion, and all their efforts towards this end were sure to meet with violent opposition. 2 The height of their power was reached during the twelfth and thirteenth centuries. 1 See Section 69 for an account of mon Law and the Canon Law the contest between the Com- in England. CHAPTER V. TEUTONIC AND ANGLO-SAXON CUSTOMS AND LAWS. SECTION 34. THE TEUTONIC ORIGIN OF ENGLAND'S POLITICAL AND LEGAL INSTITUTIONS. As the beginnings of American political institu- tions must be sought in the earlier home of the race in England, so in turn the first germs of England's con- stitution and laws can be traced to the still older home of the Anglo-Saxon race in the German forests. In this respect a striking contrast is to be seen during the early medieval period, between the history of England on the one hand, and that of France, Spain, or Italy on the other. The inhabitants of all of these countries lost their old characteristics, institutions, and laws under the Roman influence. Throughout all the western provinces of the Roman Empire only Roman civilization and Roman law existed during the latter period of the Empire. Upon the European continent these influences were not eliminated when the Roman Empire fell before its northern invaders, the victorious Teutonic tribes becoming absorbed and civilized, by the inhabitants of the vanquished provinces. The conqueror furnished the ruler, but the conquered sup- plied the laws. The mass of property passed to the Teuton, but the law governing such property remained mainly that of the Roman. Roman law and civiliza- tion held their ground, and by their superior merits forced themselves upon the conqueror. There is no 73 74 LEGAL HISTORY. hiatus in the history of these countries; their political, constitutional, and legal history extends back beyond the Teutonic to the Roman Conquest. The Teuton merely infused a new element into the conquered race, which had little influence upon its political institu- tions or development. Such is universally admitted to have been the course of history in Gaul, Italia, and Hispania, but such, in spite of the opinions of a cer- tain school of historians, was not the course of history in Britain. There is and can be no analogy between the con- quest of Britain by the Angles, Saxons, and Jutes, and the conquest of Gaul by the Franks, or of Hispania by the Goths. While the latter were wars of conquest, the former, at least in its earlier stages, was a war of extermination and settlement. The amount of time required in each case will alone prove the distinction. A single long reign was sufficient for the conquest and unification of Gaul. Italia and Hispania fell almost without a blow before barbaric hordes who desired to reign over the inhabitants of the conquered provinces, rather than to exterminate them. In Britain, on the contrary, the conquest was the work of centuries. The Jutes, under Hengist and Horsa, are reputed to have reached England in 449, and although the leaders are mythical, the date may be taken as approximately correct. The force of a united British resistance was not broken until the victory of Deorham in 577, and of Chester in 607 cut off Wales from Cornwall in the south and from Strathclyde on the north; and even then warfare with the detached fragments of British territory still dragged on. Angle and Saxon were indeed conquered by Dane and Norman before the last sparks of Celtic resistance were crushed out in the thirteenth century. No single battle settled the fate of TEUTONIC AND ANGLO-SAXON LAWS. 75 Britain. It was a story of centuries of desperate re- sistance, overcome at length by dogged perserverance. The Saxon won the land inch by inch; but what he won he held and settled. The invading hosts were not merely a horde of warriors, such as followed Alaric or Atalia; with the Saxon warrior came his family, his customs, and his laws. Whenever the Briton was driven back or exterminated, Christianity, Roman civilization and Roman law passed away. The Anglo- Saxon, in his new home, worked out for himself his system of jurisprudence as an evolution of those germs of political life brought over with him from his old fatherland. The English constitution and the English common law, therefore, are not mere outgrowths or develop- ments from Roman jurisprudence. They are of inde- pendent and indigenous development. Even what few vestiges of Roman law we find in the common law are of later origin; they were introduced by the law- yers who followed in the train of William the Conqueror and his successors, and were not borrowed from the ancient Britons. The foreign law terms in the English language came in at a later period, and are of Norman- French and not Welsh origin. SECTION 35. EARLY INSTITUTIONS As DESCRIBED IN THE GERMANIA. The English language, institutions and laws, being thus of nearly purely Teutonic origin, it is in the original home of the first Teutonic invaders of Britain, that the first beginnings of English political institu- tions and English constitutional history are to be found. The earliest information on this subject is de- rived from Roman sources. Some slight mentions of the German tribes are to be found in the pages of Caesar, but it is the "Germania" of Tacitus, which contains 76 LEGAL HISTORY. the first circumstantial account of the legal and political institutions of the ancestors of the founders of the English nation. In spite of the historical errors made by Tacitus, caused largely by his attempts to generalize too broadly concerning the life and customs of what were many scattered tribes, his work will ever remain invaluable to all students of English and American history and law. In the life of these ancient tribes, recorded for the first time by this author, we find the germs of many of the later English and American institutions. The political unit was the village community, with its system of local self-government. Each community stood apart, free and distinct from the others. It was only in times of warfare against some common enemy that the different communities could be brought to sink their individualities sufficiently to fight under a common leader. The Dux, chosen at such times, acquired neither political power, nor permanent au- thority of any kind. As soon as his military duty was performed he sank again to his former position. A certain central power appears to have resided in a general assembly held at stated times, but the main power was in the assemblies of the pagi and vici, where magistrates, for the purpose of administering justice, were chosen from time to time. The power of these magistrates, however, was very limited. They were not so much judges as presidents of courts of justice where the decision was rendered. The pagi may also have served as military divisions, each, perhaps, furnishing 100 soldiers for war. Among the most prominent characteristics of these tribes was their intense love of liberty; but they were far from the position of holding that all men were free and equal. Slaves even existed, being either prisoners of war, or TEUTONIC AND ANGLO-SAXON LAWS. 77 members of the tribe who had sold or gambled them- selves into slavery. Again, the free were of different classes. There were the merely free men and the nobles or principes. SECTION 36. THE ANGLO-SAXON CONQUEST OF BRITAIN. It was about the middle of the fifth century that these tribes first began to desert their continental homes, for new settlements in the British Isles. There was no concerted invasion of Britain under a single leader, as was the case in the invasions of Gaul and Italia. Even the traditional accounts, which speak of a single band under a single leader in each of the different sections, are undoubtedly erroneous. There were a series of conquests and settlements by many detached bands, differing greatly in size and strength, but none of them large. The English Kingdom was only to be developed by a gradual evolution. The many early kingdoms became consolidated into seven; the seven into three, and the three into one. The first great work of the English people was the creation of a united English nation. The Jutes apparently led the way and settled in Kent, that part of all Britain most easily accessible to continental Europe. Their fabled leaders Hengist and Horsa, bore names which signify the stallion and the mare, and are symbolic of the sacred white horse worshiped by the race. The leading seats of Jutish power became developed at Rochester and Canterbury, and the final union of all the Jutish settlements created the kingdom of Kent. Here Jutish invasion ended. The Jutes played the first and least important part in the Teutonic conquests of Britain. After the Jute came the Saxon, conquering and settling from Kent westward to Cornwall and Wales, 78 LEGAL HISTORY. and northward from the sea to the Watling Road. Of the seven kingdoms, Wessex, Essex, Sussex, and a part of Mercia, were Saxon. According to the chronicles the two great streams of Saxon occupations were the invasion of the South Saxons, under Aella in 477, and of the West Saxons under Cerdic and Cynric in 495. The accounts of the invasions of the Angles are scantier and less circumstantial than those of the Jutes or Saxons, perhaps because nearly all the records of this period come from West Saxon sources. Whatever records may have been retained in Northumbria seems to have disappeared in the anarchy of the eighth century or during the Danish invasions of the ninth. It is only possible to note the general course of the Angle invasion. Landing at various points along the coast, they seem to have pushed far into the interior, along these great rivers which form the natural high- ways of England, the Humber, the Forth and others. Slowly pushing their way to the north and west they reached at length the borders of Strathclyde and the Highlands of Scotland. Of the seven kingdoms North- umbria formed by a union of Deira and Bernicia, East Anglia, comprising the territory of the north-folk and the south-folk, and the greater part of Mercia the part held by the middle English, by the Gyrwas and by the Southumbrians, belonged to the Angles. SECTION 37. CHANGES IN ANGLO-SAXON POLITICAL INSTITUTIONS OCCASIONED BY THE CONQUEST OF BRITAIN. The institutions of the Jutes, Angles, and Saxons during this period are those of their ancestors of the "Germania" with those changes, which migration and conquest naturally made. Long continued warfare TEUTONIC AND ANGLO-SAXON LAWS. 79 created the King. Nothing approaching the modern conception of a King was to be found while the tribes dwelt in Germany. The highest power was that of the Dux, chosen by the voice of his associates and intrusted with a carefully limited power, for a carefully limited period. The long continuation of the power neces- sarily intrusted to the chief of each petty expedition had the result of making such power permanent. Kingly power over minute districts led the way through gradual conquest and survival of the fittest, to King- doms and Kings on a large scale, until at last there appeared as a final culmination the King and Kingdom of England. The kingly power, however, was for life only and not inheritable. The successor of the dead king was elected by the people, or by the Wittenage- mote, although the choice in general was confined to the members of the royal family. Together with the King there appeared a new nobility and a new system of land ownership. The comites of the Dux rose with the advance of their leader. The new nobility was apparently composed of a union between part of the old nobles and these new comites, and it is probable that of the two classes the personal followers of the Dux fared the better. Nobility now came to mean, something more than a mere status. It denoted the position of a large land- holder. Private ownership of land existed from the beginning of the conquest of Britain. Very large estates fell to the Dux, large ones to the nobility, and small estates to each follower. In addition there still remained large tracts of unallotted and untilled land belonging to the public. The systems both of rank and land ownership was still crude ; or, it might perhaps be better said that no system had as yet, been worked 80 LEGAL HISTORY. out. This work was left for the great Teutonic law givers of a somewhat later age for Offa, Ine, Aelfred, Dunstan, and Canute. SECTION 38. EARLY POLITICAL AND CONSTITUTIONAL HISTORY OF ANGLO-SAXON ENGLAND. The history of England from the first coming of the Jutes to the accession of Ecgberht to the overlordship of all England falls into three sharply defined periods; that of the many kingdoms, of the seven kingdoms, and of the three. Each of these periods represent a dis- tinct phase of the great work of the consolidation of the English nation. The first period extends to the establishment of the kingdom of Northumbria by Aetherfrith, in 588, by the union of the ancient kingdoms of Deira and Bernicia. The constitutional and legal history of this period is confined to the growth of the kingship, nobility and system of land ownership, and the gradual evolution of the seven kingdoms out of the numerous petty states which sprang up in the fifth and the early part of the sixth centuries. As for the rest it is only a constant story of war with Celts, varied by wars between the conquerors themselves. Of civilization little or none remained in the Island outside of the ever-receding territory still retained by the Britons. That period of Anglo-Saxon history which imme- diately follows the establishment of the kingdom of Northumbria in 588, differed in many respects from the preceding era. The most prominent characteristic of the earlier period was the ever-continuing warfare between Briton and Anglo-Saxon; in the latter period the back-bone of British resistance had been broken and the real contest had become that of the various TEUTONIC AND ANGLO-SAXON LAWS. 81 Teutonic kingdoms for supremacy. The contest with the Britons was now of secondary importance. The three Anglo-Saxon kingdoms, which a century after this period rose superior to their rivals, were the three whose western borders were still flanked by Celtic neighbors, and who were thus given an easier and surer scope for expansion than was open to those who by their geographical position could only come in conflict with the kingdoms inhabited by people of their own blood. Northumbria, Mercia, East Anglia, Kent, Sussex, Essex, and Wessex are the seven kingdoms of the Anglo- Saxon Heptarchy, which we find at the close of the sixth century. The rapid progress of Wessex, which only a few years before seemed to threaten the political integrity of all her sister states, had met with a sudden check; and Kent held, for the time, the undoubted primacy among the seven kingdoms. Aethelberht, her king, is sometimes famed as the first great law. giver of Anglo-Saxon England; three centuries later Aelfred the Great, mentions him as one of the three great law givers from whose work he has drawn in the completion of his own laws. Whatever his laws were they have not come down to us, and his contribution to the sources of English law cannot now be identified. It is through the reestablishment of Christianity in England that his name is remembered in history. In 597 Augustine and his monks reached Kent from con- tinental Europe. The result of their mission was the conversion of Anglo-Saxon England and its re-union with the civilized world. The alliance between Kent and the Christian Church secured the triumph of Christianity but proved politically fatal to Kent. Its supremacy among the Vol. 16. 82 LEGAL HISTORY. English kingdoms passed away forever. Northum- bria, under the rule of her king, Eadwine, acquired a greater degree of power than had been before attained by any Anglo-Saxon kingdom. This primacy of Northumbria, however, was soon disputed by Mercia. As Northumbria was the champion of Christianity and Mercia the last seat of the worship of Thor and Odin, the main importance of the contest was from its religi- ous aspect. The early successes of Mercia were fol- lowed by the complete defeat of this country in 655, and the final victory of Christianity. The contest between the Irish Catholic Church in Northumbria and the Roman Catholic Church in the south was closed by the decision of the Council of Whitby in 655. Even to the present day, however, the division of England into the archbishoprics of Canterbury and York remain as a witness to this early schism in the English church, and to the inherent conservatism of the Anglo-Saxon. The work of the further consolidation of the English kingdoms went on during the seventh century. The kingdoms of Northumbria and Mercia stand out prominent in the religious wars of this period. A third great power was added to these two, when Wessex, under Ine, who ascended the throne in 688, gained the supremacy in the south and southwest. The four kingdoms, Kent, Sussex, Essex, and East Anglia, had by this time dropped into that secondary position where they became an easy prey to their stronger neighbors. The contest for the possession of England was from this time on, to be restricted to Northumbria, Mercia and Wessex. The important changes and advances in the epoch, which we have designated as the period of the seven TEUTONIC AND ANGLO-SAXON LAWS. 83 kingdoms were nearly all in the field of religion. The period which followed the accession of Ine in 688, saw the beginnings of legal and constitutional development. To this period belonged two of the greatest English lawgivers, Ine of Wessex, and Offa of Mercia. Under Ine, Wessex reached a higher degree of power than at any other time prior to the reign of Ecgberht. Somerset, Kent, Essex, and London, were incorporated into this kingdom. Even the power of Mercia was unable to keep on level terms with that of Wessex. Ine, is remembered, however, as a lawmaker rather than a conqueror. His greatest work was that of consolidation and organization. We first hear of the existence of the "Shire" during this period. Undoubtedly, like all other English institu- tions, this territorial and judicial division was the result of slow evolution, instead of creation by any single man; nevertheless, to Ine properly belong much of the credit for the completion of the work. After Wessex itself had been divided into shires, the con- quered kingdoms each fell into the position of a shire, under the central government. The aim of Ine appears to have been to check, as far as possible, the lawlessness of his subjects, and to substitute the rule of law for that of force. Among his laws we find one that no person should seek redress for their injuries by their own act until they had sought it in vain from the judges. Ine is only partially success- ful in this contest against lawlessness and disregard of civil rights, and in 726, worn out with his work, he laid down his crown. The eighth century, after the resignation of Ine, is pre-eminently the period of Mercian supremacy. Under the rule of Aethelbald and Offa, whose reigns 84 LEGAL HISTORY. together occupy nearly the whole of this period, the power of Mercia completely overshadowed that of her sister kingdoms. Civil wars in Wessex, and anarchy in Northumbria, which only ceased with the overthrow of the ancient kingdom in the next century, so impaired the strength of these kingdoms as to render them no longer formidable rivals for the middle kingdom. The only serious reverse sustained by the Mercians, during this period, was their overwhelming defeat at the battle of Burford in 754, which enabled the subject kingdoms of Kent, Essex and East Anglia to tem- porarily regain their independence. It was four years after this battle that Offa, the greatest of all Mercian kings, mounted the throne. Although making no efforts to secure the conquest of Wessex or Northumbria, he succeeded in bringing under his sway the other Anglo-Saxon kingdoms. In addition he turned his arms against the remaining Britons and the Mercian frontier was once more ad- vanced far to the west. Unlike, however, former wars between Saxon and Briton, this war was one of con- quest rather than extermination. The conquered Britons were allowed to remain in their old homes subject to the rule of Offa. The famous code of laws which bears Offa's name, and which was one of the principal sources from which Aelfred the Great bor- rowed in framing his own laws, is largely taken up with regulating the relation between the people of the two races. It was during this reign that England first began to have dealings with foreign countries. Charles the Great, then on the throne of France, was in constant intercourse with Offa, and but for the ability and shrewdness of that monarch, would undoubtedly have TEUTONIC AND ANGLO-SAXON LAWS. 85 acquired an influence over the various English king- doms, which might have resulted in their incorporation into the new western empire. The fame and strength of the Mercian kingdom during this period seemed established on a firm basis, but in reality it rests only on the ability of a single man, and his death, in 796 marked the termination of the greatness of Mercia. SECTION 39. THE UNION OF THE SEVEN KINGDOMS. Ecgberht, the man destined to secure the union of all the Saxon and Angle kingdoms, mounted the throne of Wessex in 802. He had spent a long period of exile from his native land, at the court of Charles the Great, where he received his political and military training. After a quarter of a century of inactivity, broken only by short wars with the Britons, the oppor- tunity of uniting England, came at last. A defeat of the Mercians in the invasion of Wessex in 825, en- couraged the subject kingdoms of the former to rise in rebellion. Weakened by two years of warfare and defeated by East Anglia, Mercia yielded without a struggle to Ecgberht, when the latter invaded the kingdom in 827. A year later Ecgberht advanced north into Northumbria and the ancient center and seat of power in England welcomed the rule of the southern conqueror as an escape from the anarchy of the past century. With this submission of Northum- bria, the period of the various Saxon kingdoms ended. The time had passed when Anglo-Saxon, shut off from intercourse with the rest of the world, was to wear out his energy in internecine warfare and intrigue. From now on the scope of his activities was to constantly expand. The conflicts between Mercia, Northumbria and West Saxon were to be superseded by those of the English with the Dane and Norman. 86 LEGAL HISTORY. SECTION 40. POLITICAL AND CONSTITUTIONAL HISTORY OF UNITED ANGLO-SAXON ENGLAND. The union of England, effected by Ecgberht, was rather the combination of separate kingdoms under the over lordship of Wessex, than the fusion of all into one common country. The distinction between Wessex, Mercia, and Wessex and Northumbria still remained, in spite of the fact that now, for the first time, each acknowledged the rule of a common king. The force that finally erased these ancient racial and territorial distinctions, and welded together the inhabitants of the seven kingdoms to form a kingdom and people of England came from without. The same course of events, which created a united English people, at the same time infused a new element into the nation. The ninth century witnessed the beginning of the second great Teutonic migration to England. The first warnings of the threatening danger from the north came in the reign of Ecgberht, but the full force of the storm was reserved for his sons and grandsons. Worn out by the hardships and difficulties of their early positions, Eathelwolf and his three eldest sons followed each other to early graves, leaving the throne of England to Ecgberht 's youngest grandson, and the greatest of all Saxon Kings, Aelfred. It was in the year of 871 that this King, to whom history has given the title of 'The Great" succeeded his brother, Aethelred upon the throne. A few years of comparative calm at the outset of his reign is suc- ceeded by the great Danish invasion of 878, before which for a time, the whole of England lay prostrate. With a different ruler than Aelfred, that year might easily have seen the end of the Wessex monarchy, and the consequent change in the course of future English TEUTONIC AND ANGLO-SAXON LAWS. 87 history. In place of this it saw the Saxon victory of Edington, followed by the treaty of Wedmore, which divided England between Dane and West Saxon. The dividing line of the Watling Road gave Northum- bria, East Anglia, Essex and half of Mercia to the Danes, while Wessex retained, besides her own ancient territory, Kent, Sussex, and southwestern Mercia. Later Aelfred recovered London and a part of Mercia but the greater part of the work of reconquest was reserved for his successors. The remainder of the life of Aelfred is of a different character. While never neglecting to provide for the military defense of his country, he appears from now on, principally as the law giver, the collector and revisor of law codes, the educator and civilizer of his people. The laws of Aelfred are, in the main, a com- pilation of the laws of earlier times. He himself makes no claim to innovation or originality. We find him saying: "I, then, Aelfred, King, these (laws) have gathered and had many of them written, which our forefathers held, those that we liked. And many of them that we not liked, I threw aside with my wise men's thought, and nowise held them. For why I durst not risk of my own much in writ to set, for why, it to me unknown was, what of them would like those after us were. But that which I met, either in Ine's laws, my kinsman, or in Offa's, the king of the Mercians, or in Aethelberts' that erst of English Kings, babtism underwent, those that to me rightest seemed, these have I herein gathered and the others passed by. I then, Aelfred, King of the West Saxons, to all my wise men these showed, and they then quoth that to them it seemed good all to hold." It is probable, however, that intermixed with the 88 LEGAL HISTORY. ancient laws of Ine or Offa, appeared much that was original with Aelfred himself, it may have seemed to him wisest to claim the authority of precedent for all his code, rather than to let a portion of it rest solely upon his own judgment and decree. At the least, to Aelfred is due the credit for the revision, selection and codification of the laws of his people. There was no longer one set of laws for Kent, another for Sussex and a third for Wessex. There was one law throughout his kingdom, and as territory was from time to time conquered from the Dane, this territory also fell under the same law. Absolute uniformity there could not be; various local customs and usages had acquired strength, which enabled them to stand for centuries in opposition to the national law. Such exceptions, however, were the necessary result of the times and detract nothing from the credit due to the work of Aelfred. The inhabitants of Mercia, of Wessex and of Kent, submitted to this new general law, the more readily, because something had been taken from the laws of each. Of the laws of Northumbria we find no trace. Domestic anarchy and foreign invasion had destroyed the laws and records of this northern king- dom, and had reduced the former center of power, education and government in the island to the position of secondary importance, which she was fated to occupy in the future. Side by side with the revision of the law, went on the work of reforming the administrative side of the government. For the better organization of the army, the country was divided into military districts. Each five hides of land was required to send a soldier to the army and to provide for his support. The host was divided into two halves, one of which was in the field, TEUTONIC AND ANGLO-SAXON LAWS. 89 while the other was guarding the individual burghs or townships. The creation of a fleet provided against invasion by seas. Aelfred continued the old familiar courts, those of the hundred and those of the shire, and endeavored to increase the power and influence of both. It was his desire that men shall no longer seek to take the law into their own hands, but that all alike Eorl and Ceorl should be obliged to yield sub- mission to the courts. A period of external warfare is seldom an era of constitutional development; and the years which follow the death of Aelfred, in 901, furnish no exception to the rule. The first half of the tenth century was occupied with the reconquest of Northern England from the Danes. The work was begun in 901 by Eadward the Elder, the warlike son of Aelfred. Before the death of Aethelstan, Eaward's son and successor, in 940, the work of conquest seemed to have been completed, and all England once more united under the rule of Wessex. It soon appeared, however, that it has been merely a reconquest and not an incorpora- tion, the supremacy was held by the force of character of Eadward the Elder, and Aethelstan; and when in 940 the latter was succeeded by Eadmund, the first of "the six boy kings," Northern England again slipped away from Wessex. It was at this period, that a most remarkable character first appeared upon the scene of English history. Dunstan, the monk of Glastonbury, began his public career during the reign of Eadmund and upon the assassination of the latter in 946, and the suc- cession of his brother Eadred, he rose at once to the leading place in English politics; a position he was to hold save for the few years embraced in the reign of 90 LEGAL HISTORY. Eadwig, until the death of Eadward the Martyr, in 978. Dunstan stands forth, not only as the first, but also as the greatest of that long line of English ecclesi- astical statesmen, who play so prominent a part in English history for seven centuries. The work of Aelfred the Great for his country was hardly greater or more many sided than that of Dun- stan. In fact, Dunstan, throughout the thirty years during which he held sway in England, seemed to have largely endeavored to follow in the paths marked out by the greatest of England's kings. At the very outset of Dunstan 's sway came the submission of the Danes and the final union of England; and then followed the greater work of consolidation and advancement. The cornerstone of Dunstan 'a policy was to bring about an English rather than a West Saxon administration. He was accused of showing too great favor to the Danes; and West Saxons, Mercians, Northumbrians and Danes alike appeared as the holders of high positions under the government. The son and grandson of Aelfred had been unable to appreciate or sympathize with the former's efforts for advancement in law and learning, but the work which Aelf red's descendants could not do was taken up by Dunstan. The reign of Eadgar, under whom Dunstan 's power was at its height, was the Augustan period of Saxon history in law, in church development, and in learning. "Eadgar's laws" the memory of which was to be cherished in later time, were mainly the work of Dunstan. The tenth century was the witness of great socio- logical changes in England. On the one hand slavery was being gradually crushed out, while on the other, the mass of the population were sinking into the position of TEUTONIC AND ANGLO-SAXON LAWS. 91 serfs. The principles of the feudal system were at last forcing themselves into English life. It was not, how- ever, the feudal system of the Normans or of Conti- nental Europe, which we find among the Saxons. The difference between the two are so marked, as to have led many to deny that the feudal system existed in England at all, until its introduction by William the Conqueror. This view is, however, probably incorrect. The various aspects and phases of feudalism are many and diverse, as must necessarily be the case with any institution, which we find in so many lands and extend- ing through so many centuries. Such differences must arise from the differing habits and characteristics of race, the slow changes, and the different ways in which we find feudalism being introduced. Especially strik- ing is the difference between the origin of feudalism with Saxon and with Norman. Feudalism began with the Normans upon their invasion of France; the land which was ceded to the leader, he in turn divided among his chiefs, who again subdivided it among their followers; from the outset the possession of the land by tenant or sub-tenant carried with it the duty of military service and homage. It has already been shown how different was the conquest of Britain by the Saxons. There was no general conquest, no common leader, no general owner of the soil. Each band became the owner of the land which their sword had conquered. The relationship of Dux and Comites, indeed, existed, and the Dux divided much of his land among his Comites, who thus supplanted the old nobilities in power and dignity. But this land was given absolutely, rather as a reward for past services than with the purpose of securing services in the future. The first beginnings of the feudal system in England appear in the reign 92 LEGAL HISTORY. of Aelfred. Two causes combined at this time to produce this result. The first was the re-organization of the military forces, which compelled each five hides of land to send an armed man to war and supply his expenses. The second was the unsettled condition of the times which furnished so little security to the small land holder, that he was forced to seek the protection and become the vassal of some one of his more powerful neighbors. A landholder, however, who became a vassal in this fashion, would occupy a far more advan- tageous position than in the case of one under the Nor- man feudal system. In both cases the vassal swore allegiance and the lord promised protection; but in the one case the vassal brought the land to the lord, while in the other the lord gave it to the vassal. In Normandy the feudal system existed at the beginning and was the foundation; in England it was introduced after the existence of the private ownership of land and after the development of a system of real estate law. The result was, that in Normandy, the law governing the land was created to harmonize with the feudal system and was in fact an integral part of it. With the Anglo-Saxons, feudalism was modified by the force of the existing law of real property. The Norman law was naturally much better adapted for the high develop- ment of the feudal system; we find there the rule of primogeniture, and the rigid restriction on alienation, which were absent among the Anglo-Saxons. The whole tendency of the age was towards the strength- ening of the feudal system, and it is possible that the Anglo-Saxon might themselves have drawn nearer to the feudalism of the continent, even if they had not been conquered a century later by the most highly feudalized nation in Europe. TEUTONIC AND ANGLO-SAXON LAWS. 93 The desire of Dunstan to form a single strong nation out of the various tribes and races in England caused him to seek to increase the power of the king at the expense of the nobles. His success in this direction, while it went far to make one England out of the old seven kingdoms, secured for him the enmity of the greater nobles. Once in the early part of his career during the reign of Eadwig, he was driven from the country, only to return upon the accession of Eadgar, stronger than ever. The murder of Eadward and the accession of Eathelred in 978, however, gave the con- trol of the government to his opponents, and in the end forced the retirement of Dunstan. Of the four conquests of England, the Danish occasioned the least change in the character of the inhabitants of England, their laws and institutions or in the course of English history. "When the wild burst of the storm was over, land, people, government reappeared unchanged. England still remained Eng- land; the conqueror sank quietly into the mass of those around them and Woden yielded without a struggle to Christ. The secret of this difference between the two invasions (i. e. the Anglo-Saxon and the Danish) was that the battle was no longer between men of different races; it was no longer a fight between Briton and German, between Englishman and Welshman. The life of these northern folk was in the main the life of the earlier Englishmen. Their customs, their religion, their social order were the same; they were in fact kinsmen bringing back to an England, that had forgotten its origin, the barbaric England of its pirate forefathers. Nowhere over Europe was the fight so fierce, because nowhere else were the combatants men of our blood and speech. But just for this reason the 94 LEGAL HISTORY. fusion of the northern with their foes was nowhere so peaceful and so complete." 1 The force of the first stream of Danish invasion was checked by the states- menship and military skill of Aelfred, and the result was a division of England instead of a conquest; a second invasion, resulted in the complete sub- jugation of England by the Danes near the begin- ning of the eleventh century. The great Danish King Canute, however, instead of trying to make England Danish, became himself an Englishman. His ambition was to make England the center of a great northern Empire, which in size and power might rank on equal terms with the Holy Roman Empire to the south. His domestic English policy was closely based upon that of Aelfred and Dunstan. He sought to weld Dane and Anglo-Saxon into one nation just as predecessors had labored to unite Northumbria, Mercian, and West Saxon. A continuation of Canute's policy might have accomplished his designs; but such a result was pre- vented by the character of his sons, and their early and violent deaths were followed by the restoration to the English throne of the old West Saxon line. The accession to the throne of Eadward the Con- fessor, marks the termination of the period of Scandi- navian immigration and influence in England. The history of Norway and Denmark which for the prevoius two centuries had been so closely united with that of England, now widely diverged. The dream of Canute of a great northern empire, purely Teutonic not only in blood but in laws and institutions was to fail of realization. The future foreign relations of England were to be with her neighbors across the English Channel instead of the North Sea, and with 1 Green's History of England. TEUTONIC AND ANGLO-SAXON LAWS. 95 the new stream of immigration which was about to pour itself upon England were to come laws and institutions of a different and non-teutonic origin. Roman law, which won its greatest victories on the continent, after Rome itself had fallen, was to influ- ence, although it could not overthrow, the great English common law system, which was rapidly developing in England. But, although England was again to be conquered by continental invaders, although her pri- vate law was to adopt much of the civil law, although Norman Feudalism in all its refinements and high development was to succeed the rudimentary feudalism of the Anglo-Saxon, one thing was to remain practic- ally unaffected. The constitutional law of England was destined to be of indigenous origin and growth, little affected by the work of Norman conquerors or Roman lawyers. Eadward the Confessor, famous in history as the last of the Saxon Kings of England, was in reality almost as much the first of the Norman kings. Half Norman in blood, more than half Norman in his inclinations, entirely Norman in education, Eadward in every way encouraged Norman immigration and prepared the way for the Norman coniquest. The whole reign of Eadward the Confessor, was a continual conflict between the influence of the foreign favorites of the king, on the one side, and the national English spirit on the other, led and protected by the House of Godwin. The reign of Eadward the Confessor was likewise one of disintegration and an undoing of the work of consolidation of Eadward, Aelfred, Dunstan, and Canute. The Kingdom became divided into the four great earldoms of Wessex, East Anglia, Mercia, and 96 LEGAL HISTORY. Northumbria. With the rise of the power of the earls, united England gradually passed away. At this period it was the earls, who stood for the English people, while the king had become the mere creature of foreign favorites. But the effect of the growing power of the earls, had it not been checked by a foreign conqueror, would have been to throw England back into the position which she had held during the old rivalry of the seven or of the three kingdoms. SECTION 41. THE SAXON WITENAGEMOTE. The Saxon kingdom was never an absolute mon- archy. The power of the Anglo-Saxon King, whether it be during the period of the many kingdoms, of the seven, of the three, or of the one, was always limited by his Witenagemote or Great Council. Centuries before, while Angle and Saxon were yet living in their continental homes we see the forerunner of the Wite- nagemote in the Folkmoot, or assembly of the free men of the tribes. In the pages of Tacitus we read that while the principes disposed of all the ordinary business, matters of great importance were submitted to the General Assembly. In the primitive kingdoms in which the Teutonic system originated, the State Assembly still appears as a Folkmoot showing the will of the whole people in arms. In the structure of the Folkmoot there is no departure from primitive tradi- tions. In course of time, however, the Folkmoots became the Witenagemotes, and were no longer the great popular assemblies of an entire nation but simply aristocratic assemblies, composed only of the great men of the kingdom. It is impossible to determine at exactly what period this change was accomplished; it was undoubtedly a gradual one, nor is it possible to determine with any degree of exactness, the composi- TEUTONIC AND ANGLO-SAXON LAWS. 97 tion of the Witenagemote at any given time. Its con- stituent elements seem to have been in the main, the eorldormen, the archbishops and bishops, the king's officers and some of the lower nobility or thanes. The attendance upon these assemblies may have been par- tially regulated, at tunes, by the number who were able to stand the expenses of the journey; distance, and the hardships of travel, perhaps, did more than the King towards keeping down the attendance at the Witen- agemote. The only relic of its former popular char- acter, lay at last in the ring of citizens who surrounded the great men of the country at Winchester, and who shouted their "ayes" and "nays" at the election of the King. The power of the Witenagemote was at all periods of the Saxon history large; it could elect or depose the King; to it belonged the administration of the higher justice; the imposition of taxes; the making of laws; the conclusion of treaties; the control of wars, and the disposal of public lands, and appointment of court officers and officers of state. Altogether, the Witenagemote served a double purpose ; that of check- ing the power of the King, and that of uniting people and preventing any undue usurpation of power by any of the great earls or eoldermen. The growth of the great earldoms in the reign of Edward the Conqueror lessened the power of the Witenagemote as well as that of the King. SECTION 42. THE ANGLO-SAXON PRIVATE LAW. The private law of the Anglo-Saxon was a very different system from that which grew up after the Norman Conquest. The loose feudalism of the coun- try had little or no influence upon its system of land ownership and the numerous complicated tenures of a Vol. 17. yo LEGAL HISTORY. later period were absolutely unknown. Land owner- ship was of two kinds; there was folc-land and boc- land. Much discussion has arisen over the nature of the estate in folc-land. Many writers translating the term too literally, have taken it as meaning land belonging to the public. Such an idea is undoubtedly erroneous. Practically all land granted out during the early Anglo-Saxon period was folc-land. Folc- land can probably be better translated as family land rather than public land. It appears to have been land in which all members of the family had certain rights and which could not be entirely alienated by the holder either by will or deed. Pole-land was not evidenced by written instruments, it was held by custom. Boc-land, was land granted by written instrument; it only becomes known in a later period of Saxon history and was at first only held by the church. Gradually, however, it came to be held by private persons. The control of the owner over boc- land was absolute. He could either sell it during his life or will it after his death. In the right of the owner to dispose of real property by will, and in the absence of any system of premogeniture, the Anglo-Saxon law much more closely resembles modern American law, than does the later Norman law. Contract law among the Anglo-Saxon was almost entirely confined to the regulation of sales of personal property. Torts were still a branch of criminal law. In the same action the Court would impose the pay- ment both of "wer" and "wite" upon the culprit; the wer going to the injured party, the wite to the State. The main courts were the local county and hun- dred courts which all freemen were bound to attend. TEUTONIC AND ANGLO-SAXON LAWS. 99 "As to procedure, the forms were sometimes com- plicated, always stiff and unbending. Mistakes in form were probably fatal at every stage. Trial of questions of fact, in anything like the modern sense, were unknown. Archaic rules of evidence make no attempt to apply any measure of probability to in- dividual cases. Oath was the primary mode of proof, an oath going not to the truth of specific fact, but to the justice of the claim or defense as a whole. The number of persons required to swear varied according to the nature of the case and the rank of the persons concerned. Inasmuch as the oath, if duly made, was conclusive, what we now call the burden of proof was rather a benefit than otherwise under ancient Germanic procedure. The process of clearing oneself by the full performance of the oath which the law required in the particular case is that which later medieval authorities call making one's law, facere legem. It remained possible, in certain cases, down to quite modern times. An accused person who failed in his oath, by not hav- ing the proper number of oath-helpers prepared to swear, or who was already disqualified from clearing himself by oath, had to go to one of the forms of ordeal in the later Anglo-Saxon period. Down to the ninth century the opposition of the church appears to have kept ordeal outside the recognized law." 2 'Pollock and Maitland's History of English law, Vol 1, p 15. 1st Edition. CHAPTER VI . CONSTITUTIONAL AND POLITICAL HISTORY OF ENGLAND FROM THE NORMAN CON- QUEST TO THE REIGN OF GEORGE III. SECTION 43. THE NORMAN CONQUEST. The merits of the contest between William of Normandy and Harold, Earl of Wessex, for the English throne, depended upon the question whether or not the office of King of England was to a certain degree an elective office ; whether it was an institution created for the public good and over which the people had reserved to themselves a certain degree of control, or whether the kingship was merely a species of property, the accession to which was to be governed by the same laws which determined the succession to an estate in real property. The claim of Harold to the throne rested upon his election by the Saxon Witenagemote; that of William upon his relationship to Edward the Confessor and that monarch's recognition of him as his heir. The decisive battle of Senlac ended in the death of Harold and at once gave to the William, the control of a large portion of the country including London. His later campaigns extended his authority over the rest of the realm. History, in giving to the Duke of Normandy the title of William the Conqueror, accurately described the ground upon which his claim to the throne of England was in reality based. Wil- liam, however, preferred to consider himself as the rightful King of England by the nomination of his 101 102 LEGAL HISTORY. predecessor, and to regard his victories, not as those of conquest of a foreign country, but as the overthrow of traitors in rebellion against their rightful lord. SECTION 44. CHANGES CAUSED BY THE NORMAN CONQUEST. It is in the light of this position thus taken by William that we must view his dealings with the new country which the fortune of war had placed under his control. It was never his desire to make many radical changes in the construction of English government, or to force Norman institutions, with one great excep- tion, upon the English people. His power as King of England was greater than it had been as Duke of Normandy, and he was, in the main, satisfied to let "well enough alone." One great defect, however, in the English system was clearly seen by William. It was a defect of whose existence in the past he had no reason to complain, for it had been owing to the existence of this defect, that victory had come to him at Senlac. This very reason, however, made him determine to remedy it for the future. The great defect in Anglo-Saxon political organization was its failure to provide any satisfactory military organiza- tion. To remedy this William proceeded to introduce the Normal Feudal System into England. SECTION 45. THE FEUDAL SYSTEM. It has been said that if Anglo-Saxon England had possessed the Feudal system, it had been in a rudi- mentary degree, and in a form which signally failed to provide for the creation of a military organization. The introduction of the Norman Feudal System, which remedied this defect, was rendered easy by treating as traitors all those who opposed the ascension of CONSTITUTIONAL HISTORY OF ENGLAND. 103 William the Conqueror to the throne, and confiscating their property. In this manner nearly all the land of England passed in the control of the King, who divided it among his followers, under the system of land tenure and military service which they were already ac- customed to in Normandy. A few changes were made, however, in the details of the Feudal system, with the intention of counteracting the disintegrating tendencies which had begun to make themselves manifest in Normandy. The sub-tenants were obliged to swear fealty to the King as well as to their immediate lord, while the manors which he bestowed upon his barons were scattered over the kingdom so that in no one district should the territory of any one man be great enough to tempt him to rebellion. William continued to call the ancient national assembly at the accustomed times and places; these were attended by the archbishops, abbotts, earls, thanes, and knights. With the growth of the Feudal system, however, this national council gradually changed from the old Saxon Witenagemote, into the Curia Regis, an assembly of Feudal barons. William also continued in force the so-called laws of Edward the Confessor; by this should be understood the laws that were observed during the reign of that king, i. e., the laws of Dunstan and Canute. Some changes he was necessarily obliged to make in these laws, but the number of these changes were surprisingly few. Al- though the Normans and English were considered equal in law, a distinction was allowed in some in- stances. The Normans were accustomed to trial by the wager of battle; the Anglo-Saxon by the ordeal and the compurgation. Each race was permitted in general trial by its own customs. The lives of the 104 LEGAL HISTORY. Normans were protected by heavy fines levied upon any hundred in which a Norman was found murdered. Capital punishment and the sale of men into foreign slavery were prohibited. The civil and ecclesiastical jurisdiction of the courts of law were separated, but, except for the absence of the bishop, the county and hundred courts were constructed nearly as formerly. SECTION 46. THE NORMAN KINGS. The reign of William Rufus, the second of the Norman Kings of England, was notable mainly for the King's wasteful expenditure of money obtained by tyrannical exactions from the people, and for the beginning of the long struggle between the royal and feudal powers which, playing the one off against the other, brought each party at tunes to the point where they were compelled to seek aid from the commonalty of England; it was to these causes more than to any other that the revival of the liberties of the English people after the Norman conquest can be traced. Upon the death of William, the disputed succession of Henry the First to the throne, threw him for support upon the English people. With their assistance Henry was enabled, not only to make good his claims to the throne of England, against that of his brother Robert, but also to wrest from the latter his hereditary Duchy of Normandy, and to resist the power of the great feudal barons of England. His concessions to the people were contained in his Charter of Liberties, a more liberal document than the Magna Charta, but one which soon became generally disregarded. The reign of Henry the First was, on the whole, despotic; he was not a lawgiver nor did he entrust the National Council with any power of legislating. He, CONSTITUTIONAL HISTORY OF ENGLAND. 105 however, did much towards organizing the judicial system of the country, leading the way for the more important and far reaching reforms of the second Henry. Henry the First also granted a charter to the boroughs and the board guilds, both of which were afterwards to play an important part in strengthening the commonalty of England. With the twenty years of anarchy incident to the disputed succession between Stephen and Matilda, the fortunes of war swayed back- wards and forwards between the contesting parties and was finally ended by the conditions of the Treaty of Wallingford, giving the throne to Stephen, and the succession to Henry, son of Matilda. Throughout the whole period, whoever for the moment sat upon the English throne, the English nobles seized the op- portunity offered by the troubled tunes to strengthen their position and to extend their power and privileges, both at the expense of the royal prerogative and the rights of the people. It was the undoing of the cen- tralizing work of Henry the First, and more. SECTION 47. LEGAL REFORMS OF HENRY THE SECOND. The nationalization of England was finally ac- complished during the reign of Henry II. From the first landing of Hengist and Horsa, the unification of the various divergent races inhabiting England had constantly been one of the great problems presented to all English rulers. Scarcely had the task seemed to be performed than a new immigration would create a new aspect of the same problem. Scarcely had Angles, Saxons, and Jutes been united under a com- mon rule than the invasion from the north brought the contest between Anglo-Saxon and Dane. The fusion of these races only slightly preceded the Norman 106 LEGAL HISTORY. invasion. The bitterest of all contests, that between Saxon and Norman, had not yet ceased to exist by the time of the accession of Henry II. The Angevin descent of Henry II had the fortunate effect of causing the new King to sympathize neither with the Norman or the Saxon as against the other, with the result that during his reign all disturbances between the two races gradually passed away and the two became gradually fused into a new united nation. The first great problem presented to the new ruler was the subjugation of the English barons, who during the recent disturbances had attempted to advance their position from that of English subjects, into that of semi-independent feudal lords. The successful ter- mination of this task left him at liberty for his greatest work of organizing and developing the English judicial system. A brief summary of the work done along this line during his reign is as follows : the judicial duties of the Curia Regis were first separated from its legisla- tive and executive duties, and a further division of that judicial body was made into the three branches of the Exchequer, Common Pleas, and King's Bench. The itinerant justices or justices in eyre were regularly established, later in this reign being succeeded by the judges of Assize and Nisi Prius. In 1176 the country was first divided into regular judicial circuits. To Henry Second can also be ascribed the introduction of trial by jury and other legal reforms, and the wide extension and regular establishment of the system of recognition by sworn inquest, i. e., the finding of facts by a body of impartial witnesses who represented the sentiment of the local community, and who were sum- moned and examined by an official, who acted under power of the King's writ. From this institution our present trial by jury is lineally descended. CONSTITUTIONAL HISTORY OF ENGLAND. 107 Much new legislation in the various branches of private law was enacted during this reign which will be considered in Chapter VII; there is little, however, of importance in the line of Constitutional law. The reign of Henry the Second may best be described as a benevolent despotism. The reforms of this period were enacted by, and were the work of Henry the Second, rather than of the Great Council. SECTION 48. MAGNA CHARTA. Richard the First, commonly called Richard the Lion-Hearted, spent but a few months of his reign in England, the country being governed during this tune by various justices, under whom the constitutional arrangements organized by Henry the Second, worked quietly on, with few impediments or changes. The reign of John is characterized by the attempt of that monarch to disregard the rights both of the barons and the commons of England with the result of a new alignment of forces in England; the barons and people becoming united against the tyranny of the king. This same union, of barons and people on the one hand and the royalty on the other was, in the main, to continue to exist down to the period of the War of the Roses. To this union of the nobility and the commons must be assigned in a large measure the retention of the liberties of the people in England after they had been lost by the neighboring peoples of the continent. The contest between the king and his subjects finally culminated in that great historical spectacle at Runny- mede, where John, finding himself arrayed against practically a solid nation, granted to his people that instrument, known as one of the three great chapters of English liberties, whose importance is further emphasized by its title of "The Great Charter." 108 LEGAL HISTORY. The granting of the Magna Charta was an event of importance, not only to the barons who assembled at Runnymede, and to their allies among the English people, but to all future generations of the Anglo- Saxon race, and indeed to the whole world. The principles contained in this charter, as extended and supplemented by the provisions of the later Petition of Rights, and Bill of Rights have ever since served as the fundamental basis of the rights and liberties of the English people, and more than this, extending their in- fluence to regions of the world of which neither John nor his opponents had ever heard, have largely served as the groundwork upon which the rights of the individual rests in America and Australia . Many of the provisions of the United States Constitution and other provisions of our statutory or unwritten law can be traced back to this charter. It should be borne in mind, however, that mingled with the provisions of such great and far-reach- ing importance, were many others of merely temporary interest. The sixty-three articles of this Magna Charta may be divided into five clearly defined classes or provisions: 1st. Those concerned with feudal obli- gations. 2nd. Those having relation to the adminis- tration of law or justice. 3d. The provisions relating to cities, boroughs and commerce. 4th. Those directed against purveyance and other exactions. 5th. And finally those fundamental principles whose importance have continued down to the present day. Four clauses, viz. : the 12th, 14th, 39th, and 40th stand out preeminently from the other fifty-nine. In the first two of these are to be seen the declaration of the right of the people to be represented in Parliament and of the principle that taxation should not exist without representation. In the last two may be seen the germs of the writ of habeas corpus and of the trial by jury. CONSTITUTIONAL HISTORY OF ENGLAND. 109 Clause 12. "No scutage or aid shall be imposed unless per commune concilium regni, except in the three cases of ransoming the king's person, making his oldest son a knight, and once for marrying his eldest daughter, and for these the aids shall be reasonable. In like manner it shall be concerning the aids of the City of London. " Clause 14. "In order to take the common coun- cil of the nation in the imposition of aids for, (other than the three regular feudal aids) and of scutage, the king shall cause to be summoned the archbishops, bishops, earls and greater barons, by writs directed to each severally, all other tenants in capite by a general writ addressed to the sheriff of each shire ; a certain day and place shall be named for their meeting, of which forty days' notice shall be given; in all letters of summons the cause of summons shall be specified, and the consent of those present on the appointed day shall bind those who, though summoned, shall not have attended." Clause 39. "No freeman shall be taken or impris- oned or disseized or outlawed, or exiled or anyways destroyed; nor shall we go upon him, nor shall we send upon him, unless by the lawful judgment of his peers or by the law of the land." Clause 40. ' To none will we sell, to none will we deny or delay right or justice." 1 SECTION 49. SIMON DE MONTFORT AND THE ORIGIN OF PARLIAMENT. The thirteenth century in English history fore- shadowed the seventeenth. The great movement, which in the former century, wrested the Magna 1 For complete text of Magna Charta see Appendix C. 110 LEGAL HISTORY. Charta from John, at Runnymede, supported Simon de Montfort in his resistance to Henry Third, and produced the evolution of the English Parliament out of the Curia Regis, bears a very strong resemblance to that movement which, four centuries later sent one of the Stuart kings to the block and another into exile, and secured for the English people the Petition of Right, the Habeas Corpus Act, and the Bill of Rights. The reformers of the thirteenth century, however, were men whose political ideas were far ahead of their times, with the result that the immediate effect of most of their work was only transient, and its greatest importance lies in the example which it furnished for the future. The attempted reforms of Simon de Montfort, if they could have received the support of England at this time, would have very largely antici- pated the work of the seventeenth century; as it is the brief period of the rule of Simon de Montfort is the brightest spot in the history of English liberty prior to the days of the Long Parliament. De Montfort and his followers, it is true, claimed to proclaim no new political principles, nor to demand any innovation or new grants of liberties from the king. In this they resembled the English reformers of preceding and succeeding generations. From the time when the Anglo-Saxons, in the eleventh and twelfth centuries cried for the restoration of the good old laws of Ead- ward the Confessor to the time when English liberties were finally secured by the Bill of Rights, all proposed reforms in the English Government have been de- fended by their advocates, as being merely as a return to the old liberties of their forefathers. What the English people demanded of Henry 111 was his observance of the principles as laid down CONSTITUTIONAL HISTORY OF ENGLAND. Ill in the Magna Charta, an observance which he often promised but seldom fulfilled. The liberties of England seemed to perish with the fall of De Montfort at the battle of Eversham, but this struggle was not to be without its effect upon the future of England and most prominent among the results which can be traced back to this great contest was the impetus which it had given to the development of the English Parliament. While in theory all the powers of the old Saxon Witenagemote passed to the Curia Regis of the Norman kings, in reality its legislative powers were soon reduced to a mere shadow. The principle duties of the Curia Regis during the reigns of the Norman kings were to assist the King in his judicial and administrative work. Its legislative functions, however, while at this time slight, represented the entire share which either nobility or commonalty had in the making of English laws. In its constitution the Curia Regis of the Norman kings was a court of the King's feudal vassals, which each tenant in chief of the King had the right to attend. In practice this attendance soon became limited to the greater barons, the higher ecclesiastics, and the officials of the King. The thirteenth century saw the intro- duction of the elective system in the determination of the membership of the Curia Regis; it was the exten- sion of this system which was to turn the Curia Regis into the English Parliament; to play a leading part in the preservation of English liberties, and to finally result in the development of that system of representa- tive government which has been the greatest political contribution made to the world by the Anglo-Saxon race. The elective method was occasionally used as early as the reign of King John for the purpose of 112 LEGAL HISTORY. choosing representatives of the royal desmesnes and of the lesser barons. It is not, however, until the time of De Montfort and the Parliament of 1265 that the principle was used for the purpose of securing repre- sentation to the cities and boroughs, the centers of the intellectual and commercial life of England and the backbone of the power of English commerce. With the overthrow of De Montfort this representative system seemed to have been destroyed. Edward I, however, had learned, and was willing to learn, more from De Montfort than military tactics, and we see the Par- liament of 1295 created upon the same basis as De Montfort 's famous parliament of thirty years before. Edward Fs Parliament of 1295, stands as a landmark in the constitutional and political history of England. The great work of his reign, however, leaving out of consideration his military campaigns, was along the line of the development of English private law; it is his work which has earned for him the title of the English Justinian. The reign of Edward I is one of definition, of development, of the settlement of details; the work of his reign may be said to have been a finishing and polishing of the work which had been rough-hewn by his predecessors. We find in it no such great work as the reorganizing of the judicial system by Henry II; no great charter of liberties like the Magna Charta; no such brilliant political innovation as that contained in the Parliament of Simon de Montfort, but all of these needed the work of an Edward I for their com- pletion. The judicial system of Henry II was devel- oped into a higher degree of efficiency than it ever at- tained in the reign of the first Plantagenet King. The Magna Charta was reaffirmed, and in the main followed. CONSTITUTIONAL HISTORY OF ENGLAND. 113 The revolutionary expedient of Simon de Montfort was made part of the regular law of the land. SECTION 50. PARLIAMENT IN THE FOURTEENTH CEN- TURY. The history of England during the thirteenth cen- tury, and again during the fifteenth, centered around the nobility of England ; but in the fourteenth century, for the first time, and for the last time prior to the seventeenth century, we find a prominent place taken by the House of Commons. It was in fact, during this century that Parliament became definitely divided into two houses. Even as early as the reign of Edward II, the Com- mons had asserted their power of granting a subsidy "upon this condition," that the King should take advice and grant redress upon certain articles in which their grievances were set forth. The reign of Edward II from a Constitutional standpoint is in the main very similar to that of Henry III, and in the resistance to the King, the leading part is taken by the barons of England. The attack upon Parliament and upon the King's favorites, is the forerunner of the right of Parliament to hold ministers and the King responsible to them for their conduct. The reign of Edward III, which occupied exactly one-half of the fourteenth cen- tury was mainly a period of foreign warfare which took the King for long psriods of time out of England and required constant calls upon Parliament for financial support. It was upon the House of Commons, as the special representatives of the commercial class of the nation, that the responsibility of granting these supplies chiefly fell, and it was through this power of the purse that the House of Commons for the first time obtained a position of real importance in the Vol. 18. 114 LEGAL HISTORY. Government of England. Parliamentary history of the reign of Edward III is very full, there being no less than forty-eight sessions of Parliament held in the fifty years of his reign. Twice during his reign a pro- vision for an annual session of Parliament was adopted. During this long reign the Commons succeeded in establishing five great rights; 1st. That all taxation without the consent of the Parliament should be illegal. 2nd. That Parliament had the right to exam- ine public accounts and appropriate supplies. 3rd. The necessity for the concurrence of both houses in legislation. 4th. The right of the Commons to inquire into and amend the abuses of the administration. 5th. That Parliament had the right to impeach the King's ministers for misconduct. This last right, that of impeachment, was actually exercised by the so-called "Good Parliament" of 1376. It is strongly indicative of the growing strength of the Parliament that during the closing years of the reign of Edward III, the contest between John of Gaunt and his enemies for the control of affairs in England, was fought out in the halls of the House of Commons rather than upon the battlefield. The history of the reign of Richard II is an alter- nate triumph of despotism and constitutional govern- ment, ending with the vindication of the right of Parli- ament to depose an unworthy King and to elect for him a more worthy successor. SECTION 51. THE WAR OF THE ROSES. The House of Lancaster had come to the throne at the close of the fourteenth century, with a title, whose validity rested upon the legality of the election of Henry IV by the House of Commons. Henry IV, CONSTITUTIONAL HISTORY OF ENGLAND. 115 being son of John of Gaunt, fourth son of Edward III, could not be considered as the heir to the throne, if the Crown was to descend strictly by those rules of hereditary descent which the feudal law applied to the descent of real property. If such rules were to govern, the throne should have passed, after the deposition and death of Richard II, to Edward Mortimer, the infant son of Roger Mortimer, Earl of March, son of Phillippa, who was daughter and heiress of Lionel of Clarence, third son of Edward III. The whole question, from a legal standpoint, as to the respective rights of the claimants of the Houses of York and Lancaster to the English throne, therefore, turned upon this question as to whether the throne of England was strictly hereditary, or whether, upon extraordinary occasion, the English Parliament had the right to vary such rules by the election of the most worthy member of the Royal Family. It was a ques- tion in which there was much difficulty in reaching any definite decision, although the historical arguments lay entirely on the side of the House of Lancaster. It was a question too difficult to be settled by law, a question whose final decision in the fifteenth century could only be decided by the sword. The War of the Roses, indeed, could not finally settle the real question. The varying fortunes of war placed first one nation and then the other in power, and even at its close the legal point in controversy could hardly be said to have been determined. It remained an open question in the Eng- lish Constitution, down to the time of the accession of the House of Hanover. It was two generations after the accession of Henry IV before the adverse claims of the descend- ants of Lionel first began to manifest themselves. At 116 LEGAL HISTORY. the time of the deposition of Richard II, the heir of the House of Mortimer was an infant, and among his followers there were none to make headway against the wary cunning of the Lancastrian King. The brilliant foreign victories of Henry V made him the idol of the English people, and it seemed as if the House of Lancaster was at last firmly established on the English throne, but the aspect of affairs suddenly changed in the reign of Henry VI. Coming to the throne when a few months of age, displaying through- out his life a weakness of intellect, which at times reached the point of absolute insanity, rendered un- popular by the acts of his ministers, by his marriage, by the loss during his reign of the foreign conquests of his father, the position of Henry VI after thirty years of his reign had been completed, was such as to invite attacks upon his power. The claim to the throne as the representative of the claims of the House of Lionel had now passed to Richard, Duke of York, who, on the male side, was descended from the fifth son of Edward III. At first the Duke of York only claimed to be considered as the heir of Henry VI, but upon the unexpected birth of a son to the King, he advanced the bolder claim to the immediate possession of the crown, even as against Henry himself. It would be out of place to speak in detail of tne kaleidoscopic changes of fortune of the thirty years through which the Wars of the Roses extended. The defeat and death of Richard, the first claimant of the House of York was succeeded by a series of Yorkist victories, which placed Edward IV, son of Richard upon the English throne, and sent Henry VI to prison and his wife and son into exile. The temporary change of fortune caused by the desertion of Edward's CONSTITUTIONAL HISTORY OP ENGLAND. 117 greatest supporter, Warwick, the king maker, was soon followed by greater successes for the House of York and the murder of Henry VI and of his son. Edward IV continued, thereafter, throughout his life upon the throne of England without interruption, and it now seemed as if the House of York had finally succeeded to the throne, but as in the case of the House of Lan- caster, the appearance proved deceptive. The un- popularity of Richard III, who was supposed to have murdered his nephew, Edward V, in order to obtain the throne, at length aroused new opposition, and Henry Richmond took the field against him as the last representative of the House of Lancaster. Few claimants for the English throne ever pos- sessed a more remote connection with the royal family. He was descended, on the male side, from a long line of Welsh gentlemen of no very great prominence, but into which family had been infused by marriage the claim to the throne, derived from John of Gaunt, through his late and rather illegitimate marriage. It was, however, owing much more to the unpopularity of Richard rather than the strength upon which his claim rested, which brought him the support which enabled him to win his decisive victory at the battle of Bosworth, the last battle of the Civil War. The details of the struggle of the War of the Roses are of mere passing interest to the student of English Constitutional History; nor was the result of the war, so far as it affected the fortunes of the two houses them- selves, of any very vital importance to England. The im- portant result of the War of the Roses was the destruc- tion of the greater part of English nobility. Death on the field of battle, on the block, and in banish- ment, had so thinned the ranks of the body, which in 118 LEGAL HISTORY. an early age had more than once proved too strong for the royal power itself, that it was a mere shadow of the House of Lords which was left to meet Henry VII after his coronation. From the close of the War of the Roses, there were two great parties instead of three, struggling for the controlling power in the government of England. The nobles had received a blow from which they never recovered, and the contest for supremacy was left to the King and to the House of Commons. The im- mediate effect was to greatly increase the power of the King. In the contest against the King the leading place had previously been taken by the House of Lords. The House of Commons, on such occasions, had generally taken but a secondary part, merely supporting the Lords in their resistance. The nobility had now become no longer able to make headway against the King, and the Commons were not yet ready to take the initiative. The result was that the Kings of the Houses of York and Tudor were the most des- potic in English history. When in the seventeenth century the absolute power of the King is once more resisted, it was no longer the House of Lords but the House of Commons which was able to claim for itself a share in the government of England. The tempo- rary eclipse of English liberty becomes thus merely the prelude to its final establishment on a more firm and permanent basis. SECTION 52. THE TUDORS. The Tudor period is a little more than co-extensive with the sixteenth century, a century which has been well described as an age remarkable for its mate- rial prosperity, its intellectual and religious activity, and CONSTITUTIONAL HISTORY OF ENGLAND. 119 its political retrogression. The Tudor period saw the discovery of America, the beginning of English explora- tion and foreign traffic, the revival of learning, and the reformation. The general, religious, and commercial history of this period is full and interesting. Its con- stitutional history is meager. It was a period in which the King was the State and when his power was gener- ally well nigh absolute. There was, however, one prom- inent characteristic of the Tudor kings, which was later to prove of the greatest benefit to the kingdom. This characteristic was their great reverence for all the forms of the law. There was no attempt on their part, such as was witnessed during the Bourbon rule in France, to break down the old, established instruments of Government. The tyranny of the Tudor kings was nearly always in accordance with the forms of the law; Parliament and the courts of law were retained in their entirety; but Parliament and the judges were compelled to carry out the King's will. Henry VIII, especially, seemed anxious to shelter himself from the responsibility of his acts behind the breast- work of Parliamentary sanction. The gain for the present to the people was perhaps slight. The advan- tage for the future was immeasurable. The old insti- tutions of England remained intact, with their prestige perhaps even strengthened by the important work which they were compelled to do for the King. The tyranny of the sixteenth century in England was one of individuals, not of institutions. A tyranny of an individual may pass away with the death of the indi- vidual; but a tyranny of institutions can generally only be removed by a revolution. Such proved to be the case in England. The House of Commons constantly increased in strength and influence during 120 LEGAL HISTORY. the Tudor period. "There cannot be a stronger proof of the increased weight of the Commons during these reigns than the anxiety of the court to obtain favorable elections. Many ancient boroughs, undoubt- edly, have at no period possessed sufficient importance to deserve the elective franchise on the score of their riches or population; and it is most likely that some temporary interest or partiality, which cannot now be traced, first caused a writ to be addressed, to them. But, there is much reason to conclude that the coun- sellors of Edward VI, in erecting new boroughs, acted upon a deliberate plan of strengthening their influence among the Commons. Twenty-two boroughs were created or restored in this short reign. * * * There is reason to believe that the court, or rather the imperial ambassador, did homage to the power of the Commons, by present of money, in order to procure their support of the unpopular marriage with Philip; and if Noeilles, the ambassador of Henry II, did not make use of the same means to thwart the grants of subsidy and other measures of the administration, he was at least very active in promising the support of France, and animat- ing the patriotism of those unknown leaders of that assembly, who withstood the design of a besotted woman and her unprincipled counsellors to transfer this kingdom under the yoke of Spain." 2 Except in rare instances, however, the House of Commons, during the reigns of the first four of the Tudors, was content with the semblance of power without the reality, and obediently passed such laws as were desired by the court. During the reign of Elizabeth a much bolder spirit was manifest by the Commons and but for the love borne by her subjects for Elizabeth and the ' Hallam's Constitutional History of England. CONSTITUTIONAL HISTORY OF ENGLAND. 121 tact of the Queen, the great contest for English liberty, fought out in the Stuart period, might have begun in the closing years of the sixteenth century. SECTION 53. CONTEST BETWEEN THE STUARTS AND THE HOUSE OF COMMONS. Perhaps no other ruler in history ever came to a throne with so remarkable a hereditary title as did James I of England. Not only was he descended, as had also been his predecessors, the Tudors, from both the Houses of York and Lancaster, but was also the descendant in the right line from the West Saxon royal family of Cedric, Ecgberht, and Aelfred. This union in James of the right to the throne from both of these ancient royal lines exerted a powerful influence upon his character and actions. The central point in his political creed and pivot around which all of his actions revolved, was his belief in the divine right of kings. In his mind the King was something more than a mere mortal ruler, he was the divinely appointed of God, resistance to whom was a hardly less heinous sin than rebellion against the only superior whom a King should own. Such was the condition of mind with which the first of the House of Stuart came to the throne, and such was the belief of each King of this House, until the last of the line was finally driven into exile. This was not the view of the kingly office held by the mass of the seventeenth century Englishmen. The great majority, it is true, were imbued with a deep love of the King and the kingly office; and the idea of a Republic, even in the times of the most bitter conflicts with the King, was espoused by only a few radicals like Hazelrig, and was as repugnant to the mass of the people as the ideas of anarchy is today to their descend- 122 LEGAL HISTOEY. ants. This love and respect, however, was no such unreasoning surrender, as the subjects of an oriental despot exhibit towards their masters; it was a love and reverence for the King as one of the ancient inher- ent parts of the English Government, and it was such a love as they felt for the House of Commons, or for the English Common Law. The King existed and was revered because he was the King of England and because he existed for the English nation. The Eng- lish nation was not considered to exist for the pleasure or profit of the English King. In the minds of the English people the true government of their fore- fathers was one in which both the King and Parliament had a share. It was not the desire or the intention of the Englishmen of this century to allow either of these constituent elements of their government to be abolished. The extreme adherents of the Stuarts were in as decided a minority as were the zealous republicans or the Independents. The excesses on either side were always in turn followed by a reaction. The contest between James and the Commons was begun at the very outset of his reign by his attempt to interfere with the election of the members of his Parliament. In vindication of their rights the first of James' Parliaments set forth: "1st. That our privileges and liberties are of right and due inheritance no less than our very lands and goods. 2nd. That they cannot be withheld from us, denied or impaired, but with an apparent wrong to the whole State of the realm. 3rd. That our making of request, in the entrance of Parliament, to enjoy our privileges is an act of manners only, and doth not weaken our right, no more than our suing to the King for our land by petition, which form, though new and more decent CONSTITUTIONAL HISTORY OF ENGLAND. 123 than the old principle, yet the subject's right is no less than of old. 4th. That our House is a Court of Record and so ever esteemed. 5th. That there is not the highest standing court in this land that ought to enter into competency either for dignity or authority, with this high court of Parliament, which, with your Majesty's royal assent, gives laws to other courts, but from other courts receives neither laws nor orders. 6th. And lastly; that the House of Commons is the sole proper judge of the return of all such writs and of the election of such members as belong unto it, without which the freedom or election were not entire and that though your Majesty's Court of Chancery send out writs and receive the returns and preserve them, yet the same is done only for the use of Parliament over which neither the Chancery, nor any other court ever had, or ought to have, any manner of jurisdiction." Throughout the reign of James I, the King is the aggressor and the House of Commons only stands on the defensive. The King attempts in every way to break the spirit of the House of Commons even at times causing the imprisonment of their leaders. The Com- mons, however, throughout his reign continue to mani- fest a spirit of dogged resistance which argued ill for the final success of the Stuart's theory of government. The parliamentary history of the reign showed the two great weapons in the hands of Parliament, weapons that were liable to become more and more effective as time went on, to be the power of impeachment and the right to make the granting of supplies conditional upon the redress of grievances. But for the resistance of the House of Commons, James I, would have met with few obstacles to his plans. The old union of the Lords and Commons had passed away; the nobility 124 LEGAL HISTORY. were never again to show that spirit exhibited at Run- nymede and under the leadership of Simon de Mont- fort. The degenerate successors of the barons of the thirteenth century were ready to rally around the despots of the Stuart dynasty, content to see the ancient English liberties destroyed, provided only some slight crumbs of class privilege fell to their order. A few honorable exceptions, only served to emphasize the baseness and servility of the position held in general by the so-called upper classes of England during the great contest of the seventeenth century. Turning from the House of Lords to the judiciary we see, if possible an even darker picture. The judges with few exceptions, were the abject tools of the King, ready and anxious to earn his smiles and favor by any depths of subserviency and obedience to his orders. The resistance of the great chief justice Coke led to his removal from the bench and to his continued persecu- tion at the hands of the King. It was, however, this very isolation of the House of Commons which secured for England the retention of her liberties. Deserted by his allies of an earlier century, she was compelled to rely upon herself and upon the people of England for the task. The victory, when it came, thus became one for the whole people and not for the favored classes. The ulitmate result was to make the victorious House of Commons the governing body of the Kingdom. What the House of Commons did accomplish during this reign has been thus summed up: "The Commons had now been engaged for more than twenty years in a struggle to restore and to fortify their own and their fellow sub- jects' liberties. They had obtained in this period but one legislative measure of importance, the late declara- CONSTITUTIONAL HISTORY OF ENGLAND. 125 tory act against monopolies. But they had rescued from disuse their ancient right of impeachment. They had placed on record a protestation of their claim to debate all matters of public concern. They had remonstrated against the usurped prerogatives of bind- ing the subject of proclamation, and of levying customs at the out-ports. They had secured beyond contro- versy their exclusive privilege of determining contested elections of their members. Of these advantages some were evidently incomplete, and it would require the most vigorous exertions of future Parliaments to realize them." 3 It was during the reign of James I, that the first steps were taken towards the creation of the greater England. The accession of James to the English throne united Scotland and England under a common ruler, and it was also during the reign of this King that the first successful English colonies were founded in Amer- ica. The first three years of the reign of Charles I, are, from a Constitutional point of view, a continuation of the reign of his father. The passage of the Petition of Right, in 1628, marked the close of the first period of Stuart history. The Petition of Right consisted of a statement of the grievance which the people of Eng- land had suffered under the different kings, and the enactment that such grievances should cease for the future. The principal grievances thus petitioned against were: 1st. Illegal exaction under the forms of loans. 2nd. Arbitrary imprisonments especially of par- liamentary leaders. 3rd. The billeting of soldiers upon the people ; and 1 Hallam's Constitutional History of England. Vol. I, p. 373. 126 LEGAL HISTORY. 4th. The infliction of punishment by martial law. It was hoped that the Petition of Right would end the controversy between the King and the Com- mons. Such hope, however, rested upon a misunder- standing of the true character of the King. The belief was firmly imbedded in the mind of King Charles that a King was so far removed by Divine Providence above his subjects, that he could not be held bound by any promises or contracts made with them. Events soon showed that Charles never intended to keep the prom- ises contained in the Petition of Rights and such prom- ises were, in fact, not kept. The session of Parliament in 1629 was tumultuous in the extreme; the King refused to listen to the remonstrances of Parliament and finally commanded the House of Commons to adjourn. Upon learning that the House was preparing to pass a series of resolutions condemnatory of his actions, the King decided to send his guard to the House to force immediate adjournment. This action occasioned one of the most dramatic scenes in the Parliamentary history of England, as with the doors locked against the admittance of the King's guard, Sir John Elliot read the resolutions to the House, while Valentine and Holies held the speaker in his chair. These resolutions, the last remonstrance which Parliament was able to utter for years, being passed, the doors were then opened and Parliament was ad- journed by force. This adjournment was followed by one of the worst periods of Stuart tyranny. For eleven years the King endeavored to rule the country entirely by his own will, independently of Parliament. The King's first act of tyranny was the imprisonment of the rebellious members of this Parliament, and Sir John Elliot the leader, of the popular party in the CONSTITUTIONAL HISTORY OF ENGLAND. 127 House of Commons, during the session of 1629, died during his imprisonment. Charles next attempted to introduce many innovations in the religious and political institutions of England. Laud, Archbishop of Canterbury, was his chief advisor as to religious matters, while Thomas Wentworth, Earl of Strafford and a renegade leader of the Commons, was the instru- ment by whom the King attempted to destroy the political rights of the English people. The English religious disputes of the seventeenth century are beyond the understanding of any one but a trained theologian, but by the course of events the cause of the established Church in England and of the Stuart tyranny became inseparably connected. Ar- rayed against these were the Protestant non-conform- ists and the friends of political liberty. On the political side, the King's policy was a simple one, it being summed up in the one word motto of his chief minister- thorough. The aim was nothing short of the destruc- tion of the liberties of England. The English people were, as nearly as possible, to be reduced to the same position as that of the subjects of an oriental despot. The principle that the King is the State, and that the subjects were created for him, was to be rigidly carried out. Parliament was to be done away with; and although the courts were to continue to exist, they were to continue merely as agents of the King, and subject at all times to his commands. There was to be no division of powers among executive, legislative, and judicial departments; all departments were to be one, and that department the King. The chief difficulty of the King at all times lay in his lack of money, and to obtain it many illegal methods were resorted to. One of these illegal methods 128 LEGAL HISTORY. which brought in the greatest returns was the levying of ship money in tune of peace, throughout all the countries of England, inland as well as those bordering on the sea shore. It was at this time that John Hampden, forever famous as the champion of English liberties, refused to pay his share of the illegal tax and contended against its lawfulness in the English courts. The judges, however, proved their subser- viency to the King on this question and ten of the twelve judges upheld the King's claim. 4 It might have seemed at this tune, as though the darkness of midnight had descended upon the liberties of England, and many of the stoutest hearts in the kingdoms showed then* despair at the existing conditions at home by emigrating to the wilderness of the new western continent. Of a sudden a ray of light appeared in the North. Archbishop Laud, in his zealousness, not con- tent with his alterations in the English Church, had attempted at the same time to overthrow the Calvan- istic system of the Scottish Church. The Scotch, how- ever, lacked the patience of their southern neighbors and scarcely had an attempt been made to put the hated innovations into force, when the nation rose in arms. Terrified at this unexpected incident, and in need of greater supplies of money than could be wrested from the people even by all his unlawful expedients, Charles at last summoned Parliament. The Parlia- ment elected was a far more moderate one that would be expected to have been chosen after eleven years of misgovernment, without a parliament, and in violation of law. The majority of the members of Parliament were men of conservative views but even they insisted * Three of the ten judges who up- favor in this particular case on held the general right of the technical points, king decided in Hampden's CONSTITUTIONAL HISTORY OF ENGLAND. 129 upon certain reforms before they would grant money supplies to the King. The King would hear of no concession, and Parliament was adjourned, without the passage of a single act. But it was the King's friends and not his enemies who were disappointed at this dissolution. Historians of the age 6 tell us how the leaders of the people went down from Parliament, smiling, knowing that a new Parliament would meet in a far different spirit, a spirit far more hostile to the King than had been that of the Parliament just dis- solved. Such proved to be the case. Continued trouble in the North compelled the summoning of a new Parliament before the year was out, and the election manifested that a great change of opinion had taken place during the last few months a change against the King. The candidates of the King were rejected on all sides, and his bitterest opponents elected to Parliament. The members of the famous Long Parliament of England met in 1640, with an appreciation of the fact that upon them rested the responsibility for the preservation of English liberties, and with the grim determination to perform their duty regardless of what- ever the cost might be to themselves, or to their enemies. The work of Parliament began with a move- ment for the punishment of the guilty advisors of the King; first came the impeachment of Stafford, followed by that of Laud and others. The King, for the moment thoroughly cowed, signed the death warrants of his favorites. The main object of the King in summoning Parliament had been to obtain from them assistance in his conflict with the Scots, but to the members of the Long Parliament the Scottish rebellion appeared ' See Clarendon's History of the Rebellion and Wars in England. Vol. 19. 130 LEGAL HISTORY. in a far different light from that in which it was viewed by the King. The Scotch were, like themselves, resisting the tyranny of the crown, and furthermore, it was the Scottish rebellion which had saved the liberties of England by making the calling of a new English Parliament necessary. The result was, that instead of appropriating money to be used in warlike preparations against their northern neighbors, Parlia- ment referred to them as their "brethren of Scotland" and voted a handsome sum of money to the Scottish army to reimburse them for their expenses and pay while in the field. The danger of another long period without the re-assembling of Parliament was done away with by an act providing that Parliament should assemble at least once in three years, with provisions for its assembly without the writs of election being issued by the King, if such writs were not properly issued. To prevent the dissolution of their body before its work was accomplished, it was provided that it should not be dissolved without its own consent. At no other time, indeed, in the Parliamentary history of England have existing abuses been so rapidly abolished by Parlia- mentary action as they were during the early months of 1641. The right of the King to collect ship money was done away with, and the court of the Star Cham- ber, the High Commission, and the Council of the North were abolished. Purveyance was restricted, impress- ments declared illegal, compulsory kinghthood abol- ished, and extensions of the royal forests annulled. Up to this period the House of Commons had stood nearly as a unit against the King, but now a division in the parliamentary ranks began to manifest itself. The more conservative, or faint hearted, of the members began to think that enough had been done CONSTITUTIONAL HISTORY OF ENGLAND. 131 to properly secure the liberties of the English people, and began to fear that if further encroachments were made upon the power of the King it would result in a displacement of the equilibrium of the English mon- archy. The more radical element in the Parliament, led by a group of the wisest and most far-seeing states- men whose names are contained in the annals of his- tory, appreciating the treacherous character of the man with whom they were dealing, feeling their responsibility as the custodians of English liberty, and infused with the progressive spirit of the day, were determined to secure these English liberties by laws sufficient to protect them, instead of leaving them at the mercy of the faith of a man whose oath had already been shown to be valueless. The division between these two parties came to an issue on the attempt to pass through Parliament, what has become known in history as 'The Great Remonstrance," which con- sisted of an enumeration of the wrongs which the country had sustained at the hand of its King, and an appeal to the country to support Parliament in their conflict with him. This remonstrance was finally passed by a narrow margin of two votes. From this point on the events leading up to the Civil War fol- lowed each other in rapid succession. The attempt of the King to destroy the opposition in Parliament by the arrest of the five leaders of the Parliamentary party, John Pym, John Hampden, Denzill Holies, Sir Arthur Haslerig and William Strode, was made known to these members in time to allow them to escape from the House before the entrance of King Charles and his soldiers. Baffled by his attempt to seize these leaders, or to create a riot in the House of Commons, which might have given him an excuse to 132 LEGAL HISTORY. use his guards for the massacre of those members of that body who had remained true to their constituents, Charles was now under the necessity of fleeing from London, taking up his headquarters at Oxford and appealing to the fortunes of war. At first the war went favorable for the King, whose army proved itself superior to the armies of the Scotch or of Parlia- ment, but gradually a new element began to develop in the Parliamentary army; it was an element so closely connected with the religious differences of the times that it can only be understood in connection with them. The great strength of the Parliamentary forces had, up to this time, lain in the low church element of the Church of England, and in the Presby- terians. There was, however, growing up in England, a new religious belief which denounced the govern- ment by Councils as well as that by Bishops or by the Pope, and which advocated an independent con- trol by each congregation over its own affairs. From this was derived their name of Independents. It was in this body that the most extreme members of the Puritan faith were to be found; and it was from this body that there was organized the regiments which probably constituted the finest body of soldiers which have ever been brought together. It was said of them, when afterwards perfected under the rule of Cromwell, that there have been other bodies of soldiers in the history of the world which were under as perfect discipline, and other bodies of soldiers inspired by as fierce and sincere enthusiasm, but never at any time, has there existed a body in which such discipline and enthusiasm were combined. With the gradual develop- ment of this body of soldiers, the fortunes of war began to change, until finally these ' 'Ironside Regi- CONSTITUTIONAL HISTORY OF ENGLAND. 133 ments" turned the tide of battle at Marston Moor. Charles now became a fugitive and soon afterwards a prisoner. A period of trickery, confusion, and negotiations ensued. There were at this period four distinct elements, all playing at cross purposes, and at last three of them resorting to deception, and attempt- ing by negotiations with each of the others to obtain an advantage for themselves. The victory finally falls to the army of the Independents. The Long Parliament was first reduced to a mere "rump" and then dissolved by military force. The King, tried for violation of his coronation oath, was found guilty and publicly executed "a sentence too mighty for its age; but glorious in the light of all future tune for its humiliating lesson to the monarch, and its high ex- ample to the subject." 6 Two decisive defeats of the Scotch Presbyterian army by Cromwell ended the military operations for the time. The government of England now passed com- pletely under the control of the army of the Inde- pendents under Oliver Cromwell. The contest entered into between the King and the Parliament had proved fatal to both. The pages of history fail to furnish any other example which can be compared to the position now occupied by Cromwell and his soldiers. The army had overthrown King and Parliament for the purpose of freeing England, but by the time the weight of the Stuart oppression had been removed, the majority of the people of the country repented of their success and longed for the restoration of the kingly rule. It was another case where a people who had been led out of bondage, now turned upon their liberators and clamored for the flesh pots of Egypt. 8 Hawthorne's "The Grey Champion." 134 LEGAL HISTORY. It was the desire of the Independents and of the army of the Commonwealth to give to the people of Eng- land the right of self government; but it was evident to all that the first use which the people would make of such a right would be to fasten upon themselves once more the shackles of Stuart tyranny. The result was, that the only government which Cromwell could maintain was a military despotism. There was, in- deed, one course open to Cromwell which would have been heralded with satisfaction by the mass of the English people. The attachment and loyalty of the English people was at all times rather to the name of king than to any particular royal house; as had been shown in the fifteenth century by the readiness with which the nation accepted in turn with equal loyalty, the kings of the rival Houses of York and Lancaster. If Cromwell himself had assumed the kingly office, that national tendency of the British people to follow the King de facto, coupled with the pride which every Englishman felt in the great foreign successes of this greatest of English Generals would have changed the royal dynasty of England as effectually as it had been changed by the battle of Senlac, and the restoration of the Stuarts would in all probability have been as difficult in the seventeenth century as it afterwards became in the eighteenth. One insurmountable diffi- culty, however, stood in the way of such a step, it would have met with the opposition of the one body of men whom Cromwell could not antagonise, the army of the Independents. It is not important to consider the various plans of government during the years of the Commonwealth; these governments were entirely outside the stream of the development of the English Constitution; they were not the product of previous English history, they played no part in the develop- CONSTITUTIONAL HISTORY OF ENGLAND. 135 ment of the future. Their greatest value is the proof which they give of the absolute inability of the Saxon race to adapt itself to any sudden or radical change in government and to remind us, once more of that gradual but continued evolution which, commencing in the German forests before the dawn of history, culminates in the Constitution of the United States. The stability of Cromwell's government rested entirely upon the statesmanship and iron will of Cromwell himself; the task of supporting it was too great for his weak son and successor. The inevitable result came in the restoration of the House of Stuart, in the person of Charles II, in 1660. The reign of this monarch was the period of Stuart history during which the liberties of the people of England were in the most serious danger. Charles lacked one char- acteristic which we find prominently in the characters of his grandfather, father and younger brother, and which during the reigns of all the kings furnished the greatest safeguard to the English people. What the other rulers of the Stuart race sought was less the real exercise of power than the humble acknowledgment of such power by their subjects; the discovery of opposition on the part of the people to any of their measures only made them the more anxious to secure their adoption; they sought to openly trample upon the liberties of England, rather than to secretly under- mine them. It is one of the most striking peculiarities of the Anglo-Saxon race that there is never much danger to their liberties in cases of open attack; the real danger to such liberties always lies in their over- confidence and lack of watchfulness, which has at times allowed their liberties to be stolen away while they slept; and it is a further characteristic of this race that the most advantageous time for a midnight 136 LEGAL HISTOEY. attack upon them is just after they have repulsed the enemy in the open field. To Charles II, alone, of the Stuart Kings was this state of affairs apparent. He learned the wisdom of yielding, with the graciousness of which he was such a master hand, when his measures aroused open opposition, and then quietly proceeding to reach the same end by another route. No general statement can be made as to the char- acter of this reign on account of its division into several sharply defined periods; there is a period of the rule of the government of Clarendon, followed by that of the Cabal; of Danby; of the Whig ascendancy, the last followed by its violent reaction. There were periods when England seemed about to adopt a foreign policy similar to that of Cromwell, as at the time of the formation of the 'Triple Alliance"; at other times England sank almost to the position of a de- pendency of France. This reign also saw the fore- shadowing of the ministry system and the passage of such acts as that abolishing feudal incidents, the sta- tute of frauds, and habeas corpus act. The vital constitutional question involved in this reign was that relative to the succession of James, the brother of Charles, and heir apparent to the throne. As James was an avowed Roman Catholic, the question pre- sented itself as to whether James could be allowed to rule over a Protestant nation. The Whig party en- deavored to pass through Parliament an act excluding him from the throne, and it seemed as if the King was about to be forced to yield to the demands when the Rye House Plot produced a violent reaction. The prosecution and persecution of the Whigs which fol- lowed, broke up the power of that party and left the King with a freer hand than he had previously had during his reign. It is doubtful if there is any other CONSTITUTIONAL HISTORY OF ENGLAND. 137 period in English history when the liberties of England were in such real danger as they were just at this time; their salvation came in the sudden and unexpected death of Charles. It was England's good fortune at this crisis to have the Crown pass to one of the worst rulers that has ever sat upon a throne. The four years' rule of James is the history of a constant viola- tion of everything that the English people most dearly loved, and a constant effort to overthrow the laws and liberties of England, and to establish such a despotism in England as Richelieu and Louis XIV had succeeded in creating in France. These four years of tyranny had the effect of driv- ing the English people, never moved except by the practical consideration of the hour, to a realization of the necessity of securing their liberties by putting some effectual curb on the power of their kings. James II gave to England four years of unendurable tyranny, and by so doing secured to her, her liberties for future ages. Never had there existed such unanimity among the English people as that which finally drove James II into exile ; discordant factions which for three gener- ations had fought each other with tongue, with pen and with sword, united in the general cry which went out to William of Orange to come to their relief. The seven English leaders, Devonshire, Danby, Lumby, Compton, Shrewsbury, Sidney, and Russell, who signed the famous original invitation, were representatives of all the great factions in English politics. Their invitation was the invitation of the English nation. SECTION 54. THE BILL OF RIGHTS. The Bill of Rights was the greatest triumph of the seventeenth century. The seventeenth century on the continent of Europe was one marked by the growth of LEGAL HISTORY. despotism and the destruction of free institutions. Influences were at work in England tending to bring about these same results. For nearly the whole of the century the issue had hung in doubt, and the tide of battle, for three generations had swayed now towards absolutism and now towards popular government. In the closing years of the century the contest was* ended by a decisive victory for free government. The instrument which saved England from following in the footsteps of France and Austria, and from the necessity of undergoing those terrible scenes, which a century later burst upon her neighbor across the channel, was the Bill of Rights. This instrument was adopted upon the accession of William and Mary to the throne of England and contained the statement of those rights which the long contest of the century had won for England. It was the vindication of those rights which the House of Stuart had denied and attempted to overthrow, and was a denial to the crown of those powers which they had attempted to usurp. Among other things the Bill of Rights declared that the pretended power of suspending or dispensing with laws or the execution of laws, by royal authority, without the consent of the people, was illegal; that levying money by the crown without a grant of Parlia- ment or under terms of said grant was illegal; that the right of any subject to petition the King could not be denied to -him ; that the raising and keeping a standing army within the kingdom in time of peace, except with the consent of Parliament, was against the law; that the Protestant subjects of the kingdom should have the right to keep and bear arms; that the election of members of Parliament ought to be free from inter- ference by the King; that the freedom of speech, CONSTITUTIONAL HISTORY OF ENGLAND. 139 debates, or proceedings in Parliament ought not to be impeached or questioned in any court or place outside of Parliament; that excessive bail ought not to be required nor excessive fines imposed, nor cruel and unusual punishments inflicted; that juries ought to be duly and fairly impaneled; that all grants and promises of fines or forfeitures of particular persons before conviction were illegal and void; that for the redress of all grievances and for the amending, strength- ening, and preserving of the laws, Parliament should be held frequently. Many of these provisions are today to be found in the Bills of Rights of the United States Constitution and of the Constitutions of the individual states of the Union. The passage of the Bill of Rights is perhaps the greatest of all landmarks in the constitutional history of England. The change between the government of England of the year 1688 and that of the year 1689 was hardly less than the difference which today exists between the government of England and that of Russia. The importance of the instrument can only be understood by a study of the historical conditions of the times, as well as of the text of the instrument. The Bill of Rights ranks with the Magna Charta and the Petition of Rights as the three great charters of English liberty. There is, however, one great dis- tinction between the history of the Bill of Rights, and that of its two predecessors; the Magna Charta and the Petition of Right, both contained promises of great value to the country, but the promises therein contained were almost always resisted, and at times absolutely disregarded. The promises of the Declaration of the Bill of Rights were kept, and with the passage of this bill, the danger of the destruction of English liberty 140 LEGAL HISTORY. passed away. The long contest between the King and the nobility and the people for the commanding influ- ence in the government of England was now over; by the Bill of Rights the governing power was finally secured to the English people. SECTION 55. THE MINISTRY SYSTEM. The Bill of Rights was the last event in English history which was to have a direct influence upon the form of government to be adopted in the United States. The important later changes in the workings of the English government did not extend to the government of the American colonies and were very imperfectly understood by the Americans at the time of the Declaration of Independence, or of the Consti- tution. The constitutional history of England, from the adoption of the Bill of Rights to the accession of George III, can therefore be passed over with a brief mention. The most important innovation of this period was the development of the English Ministry system. The union of all the different political and religious factors of the English people, which had called William and Mary to the throne of England, was the mere laying aside, instead of the burying of differences, and these differences broke out again as soon as the common danger had been removed. Willaim of Orange, a Hollander by birth, and concerned rather with the larger politics of Europe than with the insular politics of England, could neither fully understand nor sympathize with the aims and prejudices of the individual English- man. He desired to consider all the previous difficul- ties as settled and determined by the Bill of Rights, and to unite England in the support of those objects which he considered necessary for the preservation of CONSTITUTIONAL HISTORY OF ENGLAND. 141 the liberties of all Europe. For this reason he chose his ministers at the start from the leaders of all political shades. The condition of English politics was such, how- ever, as to render the permanency of such an arrange- ment impossible. Although the King, after the passage of the Bill of Rights, still retained, for a tune, some actual share of the government of England, still the change was rapidly developing by which the power of the executive department passed from the King to that of the Ministry, consisting of the highest offices of the various administrative departments. This Eng- lish ministry system stands today as one of the so-called conventions of the English Constitution. One effect of the introduction of the Ministry was to aid in that course of events which were taking away from the King the ruling power and giving it to the House of Commons, to whom the ministry were respon- sible ; it tended to reverse the positions of the executive and legislative departments and to make the latter entirely dependent upon the former. The Americans at the time of the revolution did not clearly understand the exact relation of the various departments of the English government to each other, nor appreciate this supremacy which the legislative department had ac- quired over the executive. The English Ministry sys- tem was not even considered during the sessions of the Federal Constitutional Convention. SECTION 56. THE HOUSE OF HANOVER. The right of the English Parliament to make provision as to the rules of succession to the crown which had been sustained by the accession of Henry IV, Henry VII, and William and Mary to the crown, was finally vindicated by the act of settlement passed at the very beginning of the eighteenth century. By 142 LEGAL HISTORY. this act Parliament settled the line of descent of the English crown, cutting out two branches of the royal family, which were, by the rules of strict hereditary descent, entitled to succeed to the throne in advance of the line upon which Parliament settled the suc- cession. As in the time of the settlement of the crown, by Parliament, upon the House of Lancaster, this settlement occasioned a civil war. The civil war of the eighteenth century, however, was of but slight impor- tance. George I the Elector of Hanover, succeeded to the throne in 1714, upon the death of Queen Anne, and the uprising in favor of the Stuarts in 1715 and 1745 were both repulsed with little difficulty. The constitutional history of England during the eighteenth century unlike that during the seventeenth is, as has been said, of little importance in the study of the Constitutional History of the United States, the reason being found in the fact that the events of the former century have an important bearing upon the future development of the United States Government, while those of the latter do not. There is very little of interest in the early years of the rule of the House of Hanover. The first two Kings of this House, strangers in birth and inclination to the country over which they were called to rule, never understood the English Government nor cared to interfere in its management; they were content to leave the conduct of affairs in the hands of the ministry, thus helping to expedite the movement already spoken of which was transferring the power of the crown to the ministry. This develop- ment of the ministry was the one great constitutional event of the century in England, and this development had no great influence upon America. The great ministers during the reign of the first two Hanovers were Robert Walpole and William Pitt; the rule of the CONSTITUTIONAL HISTORY OF ENGLAND. 143 former was a period of quiet and internal development ; that of the latter of brilliant foreign conquest. The rule of William Pitt commenced a new era for England ; it was under him that the British Empire begins to assume shape. The result of the seven years' war was the transfer of the French Colonial Empire to England, leaving that country supreme in India and America. An indirect result of this was destined to be the American War of Independence. The destruction of the French power in America gave security to the American colonies w r hile their services in the war against France had given them military experience and confidence. Furthermore, it was the debt which the expenses of the war had laid upon England, that later brought about the taxation of the colonies that caused the rupture between the colonies and the mother country. The final element necessary to bring about the revolutionary war was found in the character of the third King of the House of Hanover, who came to the throne near the close of the seven years' war. The attitude of the new King towards England was far different from that of his two predecessors. He was the last of the two English kings who demanded to be King in reality as well as in name, the ruling power of the government instead of a figurehead. His atti- tude towards the colonies was merely a phase of his whole policy towards his subjects. This policy was destroyed when Cornwallis surrendered at Yorktown. The War of the American Revolution brought other results to England than that of the mere loss of her colonies. It was the culmination of those events which transferred the ruling power in England from the King to the House of Commons. CHAPTER VII. THE ENGLISH COMMON LAW. SECTION 57. THE NORMAN CONQUEST. The Norman Conquest was destined entirely to change the course of development of English law, and yet, with the exception of the introduction of the Norman feudal system, very few innovations were made by William the Conqueror, himself , in the English law. The changes which took place were of gradual growth, and the English law of the twelfth century is a very different thing from either the Saxon law or the Nor- man law of the eleventh. The legislation of William I. himself has thus been summed up: "He forbade the bishops and archdeacons to hold in the hundred courts pleas touching ecclesiastical discipline; such pleas were for the future to be judged according to the canons and not according to the law of the hundred; the lay power was to aid the justice of the church, but it was to be well understood that no canon was to be enacted, and none of his barons or ministers were to be excommunicated without his leave. He declared that his peace comprehended all men, both English and Normans. He required from every free- man an oath of fealty. He established a special pro- tection for the lives of the Frenchmen; if the slayer of a Frenchman was not produced a heavy fine fell on the hundred in which he was slain. He declared that this special protection did not extend to those Frenchmen who had settled in England during the Vol. I. 10. 145 146 LEGAL HISTORY. Confessor's reign. He defined the procedural rules which were to prevail if a Frenchman accused an Englishman, or an Englishman a Frenchman. He decreed that every freeman should have pledges bound to produce him in court. He forbade that cattle should be sold except in the towns and before three witnesses. He forbade that any man should be sold out of the country. He substituted mutilation for capital punishment." * SECTION 5&. THE FEUDAL SYSTEM. The most important institution in Europe during the Middle Ages was feudalism. It is around this system that, for about eight centuries, the history of Western Europe is centered. It is this wide extent of feudalism, measured both by tune and by space, that makes any satisfactory definition of this insti- tution so difficult. Feudalism is never stationary. There is the period of its development, the period of its greatest power, and the period of its decline. The feudalism of one country during one century will be found very different from that of another country in another century. Feudalism also presents a varying picture in accordance with what phase of the subject we are con- sidering. Feudalism is at the same time a system of land ownership; a personal relation between lord and vassal; and the basis for the military organization of the tunes; by it are determined the political, social, and economic status of every inhabitant of the country. The oldest aspect of feudalism is the military one. The most uniform and important characteristic of feudalism is the existence of the relation of lord and 1 Pollock and Maitland's History of English Law. Volume I., pp. 66 and 67, 1st Edition. THE ENGLISH COMMON LAW. 147 vassal, which made possible the organization of effec- tive military forces. Effective military forces in the middle ages meant conquest, and conquest meant land to be divided among the victors. It only be- comes necessary to make the holding of such land by the vassals dependent upon continued military service to the lord, to have a feudal system of land tenure. For the great body of the men of the middle ages, the only occupations possible were those of agriculture or war; with both of these thoroughly feudalized, every man's position in the social and- economic struc- ture must be determined by the workings of this system. One great result of feudalism was the substitution of the idea of territorial Jaws for the systems of racial laws previously prevailing in Europe. SECTION 59. FEUDAL TENURES. It is only as a system of land-ownership that feudal- ism needs to be considered in this chapter. The under- lying theory of feudalism in this respect was that all land was owned by the King. The King grants land to his tenants-in-chief in return for military service, they in turn sub-infeudate others, and the progress goes on until at last the actual tillers of the soil are reached. The number of these sub-infeudations was theoretically unlimited; for illustration, in Edward the First's days, Roger of St. German held land at Paxton in Huntingdonshire of Robert of Bedford, who held of Richard of Ilchester, who held of Alan of Chartres, who held of Devorguil Balliol, who held of the King of Scotland, who held of the King of Eng- land. 2 Rat. Hund. II, 673. 148 LEGAL HISTOKY. The holding of a vassal from a lord, under what- ever conditions, was called a tenure. It is at once manifest that the way in which a great baron held of the King was a very different one, in every respect, from that in which a villein (or serf) held from his immediate lord. As a matter of fact, there existed in England a large variety of tenures, which will be briefly considered separately. All tenures involve the duties of homage and fealty by the vassal and of protection by the lord. The most honorable of lay tenures was that by knight's service. It was by this tenure that most of the tenants-in-chief held of the King, and that the principal sub-vassals held of the tenants-in-chief. Under this tenure the land was granted in return for the services of a certain number of fully armed knights each year for a period of about forty days. For about a century after the Norman Conquest practice and theory mainly agreed, and the military tenures furnished the King his army; during the next succeeding century the holders by these tenures did the same thing in- directly by paying scrutage instead of furnishing the soldiers, and after this period they failed to furnish an army, either directly or indirectly. By this time all that remained of this tenure were its so-called incidents, which will be considered in the next section. Tenure by serjeanty was one of the hardest tenures to explain on account of the great diversity of services upon which this tenure might be made to depend. Serjeanty is first divided into grand and petty ser- jeanty. Grand serjeanty is a tenure of dignity and includes such services "as to carry the banner of the King, or his lance, or to lead his army, or to be his marshal, or to carry his sword before him at his coro- nation, or to be his server at his coronation, or his carver, THE ENGLISH COMMON LAW. 149 or his butler, or to be one of the chamberlains of the receipt of his Exchequer." 3 Petty serjeanty covered a variety of menial services, not agricultural, and we also find petty serjeanties connected with warfare, such as the duty to furnish a foot-soldier or an archer for the army. The forests and hunting were the occasions of many tenures by serjeanty, and finally land might be held by this tenure on the service of furnishing certain military supplies. "Any tenure that on the one hand is free, and on the other hand is not spiritual, nor military, nor 'servientiaP is called tenure in free socage. Obviously, therefore, this term 'socage' will have to cover a large field; it will have to include various relationships be- tween men, which, if we regard their social or economic, or even their purely legal aspects, seem very different from each other." 4 The highest form of socage is that where the vassal pays a fixed rent to the lord; the rent may be payable either in money or produce, and the amount of the rent may be either nominal or substantial. A lower form of socage is found in cases where the vassal . was bound to render or furnish services on his lord's land. In such cases of socage, however, the services required would be absolutely certain. Free socage is the only tenure that ever existed in America. Closely allied to free socage was burgage tenure, with its special rule of inheritance by which property held under this tenure went, not to the oldest, but, to the youngest son of the holder. Villein tenure was the great unfree tenure. A villein was a serf rather than a slave. He was annexed to the land, given a small allotment for his own sup- 1 Littleton, Section 153. of English Law. Volume I, p. 4 Pollock and Maitland's History 271. 1st Edition. 150 LEGAL HISTORY. port, and compelled to work the greater part of his time for the benefit of his lord. Villeinage was both a personal status and a tenure. A man personally free might hold by a villein tenure. His only advan- tage over his neighbor, who held by the same tenure and was also a villein by status, was that he was free to leave the land. But the average man who would take such a step in the days of feudalism would be com- pelled to choose between being starved or becoming an outlaw. The services required of a villein would seem in early times to have depended entirely upon the will of his lord, but later his rights became somewhat pro- tected by what were known as the customs of the manor. Peculiar privileges were enjoyed by villeins upon the King's manors, and these privileges were continued even if the manor was granted away by the King. Sokemanry was a tenure on the dividing line between the free and the unfree. The exact character of this tenure is not clearly known and cannot be dis- cussed in detail in this work. In addition to the lay tenures already treated, there were certain religious tenures by which the church held the extensive lands granted to them. These tenures were known as frankalmoin and tenure by divine service; under the latter tenure the religious services to be rendered were definite, while under the former the lands were granted for the general good of the soul of the grantor. SECTION 60. INCIDENTS OF THE FEUDAL TENURES. In addition to the requirements of military service, all persons holding land by knight service were sub- ject to certain incidental obligations. At first these were merely for the purpose of protecting the lord's THE ENGLISH COMMON LAW. 151 right to the military service, but they continued long after the military service had closed, and became great sources of hardship to the tenant. These incidents may be briefly summarized as follows : Aids were extraordinary payments which tenants were obliged to pay on certain occasions; by Magna Charta these occasions were limited to three, to ransom the lord, to knight his eldest son, and once to marry his eldest daughter. Relief was the payment which an heir or tenant must make to the lord upon succeeding to his estate. In the twelfth century the relief for a knight's fee was fixed as 100 s.; for socage land at one year's rent; with no fixed sum for baronies and grand serjeanties. 5 Heriots were originally the horses and arms which the lord had lent to his vassal and which he had the right to take back at his death; later the right was that of the lord to take the best chattel of the deceased tenant. The right of wardship was the right of the lord to act as guardian of an infant heir of one of his tenants, receiving the profits of the estate and only paying for the present support of the heir out of such income. As the land was given in return for military service, there was, in theory, no great injustice in the lord receiving the income during such time as the tenant was unable to render such services. The greatest hardships involved in any of the so- called incidents of the feudal tenures, were those arising out of the right of the lord to control the marriage of his tenant. Originally this right was extremely limited, extending only to the right to prohibit the marriage of a vassal heiress with a party objectionable to the lord. As the husband of such heiress would have to Glanvffle, I. X. C. 4. 152 LEGAL HISTORY. render the military services due for the land, the lord had an interest in preventing such land falling into the hands of one of his enemies. Later this right of con- trol was extended over the marriage of the male heir, and by a still later and further extension the lord was not only permitted to prohibit a marriage to an ob- jectionable party, but even to pick out a wife or hus- band for such heir or heiress, whom they were obliged to marry under penalty of a heavy fine. For a long period the right of marriage with an heir or heiress was freely and openly sold by the feudal overlords. SECTION 61. THE END OF THE FEUDAL SYSTEM. It has been stated that the feudal system was the most prominent institution of the Middle Ages. It was, however, absolutely incompatible with the spirit of modern times. The invention of gunpowder ren- dered the feudal army valueless; the increasing im- portance of commerce in tune overthrew the feudal principles of land-ownership; while the modern theories of personal freedom and political equality were incon- sistent with the feudal relations between lord and vas- sal. Feudalism in England received its death-blow in the War of the Roses during the fifteenth century ; legally however, it only ceased to exist with the passage of the statute of 1660, upon the restoration of Charles II. SECTION 62. EARLY IMPORTANT STATUTES ON THE LAW OF REAL PROPERTY. No statutes marked the introduction or early development of the feudal system of land tenure in England. The English law of real property during this period was strictly an unwritten and customary one. The statutes of the twelfth century which created the various forms of all real actions had considerable THE ENGLISH COMMON LAW. 153 indirect influence upon the law of real property, but it was not until near the close of the thirteenth century that we have any important statutes on the substantive law of real property. The statute of 13 Edward I, known as the Statute of De Donis, abolished the estate known as the fee conditional, which often failed to accomplish the purpose of the grantor, and substituted the new form of estate known as the fee tail. A full account of both of these estates will be found under the subject of Real Property. Five years after the Statute of De Donis came the Statute of Quia Emptores (18 Edward I. A. D. 1290). Up to this time, the alienation of land had been pro- hibited, but every owner had been allowed to subin- feudate his land indefinitely, this statute prohibited subinfeudation and legalized the alienation of land. SECTION 63. EARLY ADJECTIVE LAW. Even after the Norman Conquest adjective law in England was of a very primitive character. The trial by battle, oath helpers, and the various ordeals were the principal methods employed to determine the truth of the claim or accusation, and no logical method of weighing the value of evidence had yet been evolved. While the rules of procedure and evidence were unscien- tific and ill-adapted for the discovery of the truth, they were, on the other hand, strictly enforced and little or no discretion was allowed to the presiding judge. For example, where a continuance was sought the exact delay which might be granted for each excuse was definitely set out. Nothing was left to the discretion of the court which could possibly be covered by general statutes or rules. 154 LEGAL HISTORY. SECTION 64. THE ORIGINAL WRITS. "The leading principle of the Norman procedure was undoubtedly the King's writ. It replaced the ancient summons, by the party injured, to the accused. 'The Court of Common Pleas had no jurisdiction without the King's writ. In the lesser courts, however, as in the Court Baron or the Sheriff's County Court, there was no original writ, but a plaint only, and the judge in such courts was bound by common right to admin- ister justice without a special mandate from the King. "The writ was enforced by the King's deputy, the sheriff, backed by all the powers of the Crown. Hence the claim of the King to be recompensed for his trouble and expense in maintaining the necessary officers to enforce his orders. ' 'Further, a writ was not a matter of right, but an act of grace from the King, and had to be paid for. This custom of payment developed into the open sale of writs, and was finally met by the famous clause of Magna Charta, 'nulli vendemus, nulli negabimus aut differemus rectum aut justiciam.' We can trace the survival of it at the present day in the shape of court fees and stamps. "A writ in its primitive form does not appear to have had any connection with a particular suit, but was a general direction to do right. All writs were anciently original writs, that is, writs which passed under the great seal, and they were issued out of Chancery (the chanceUor's office, he being secretary to the King), where was kept a register of the original writs. "Original writs were either optional or preemptory. The optional writ was called a praecipe, because it was in the form of a 'command' to the defendant to redress THE ENGLISH COMMON LAW. 155 the injury or stand the suit, giving him his choice. The preemptory writ was called a writ si fecerit te securum, because 'if the plaintiff gave security' to the sheriff to prosecute his suit, the sheriff compelled the defendant to appear in court, without giving him any option. If the defendant could not appear he might put in essoins (essonium) or excuses for not taking a step in the suit." 6 As time went on the original writ became more important and determined the whole course of the cause of action. Even the rules governing the introduction of evidence would vary in different causes in accordance with the character of the writ which marked the begin- ning of the litigation. The number of these original writs was very large, the exact number it is impossible to determine. For example, the Writ of Entry, may be considered as a single writ or as a general term for a dozen or more separate writs. The following list of writs which we find on the roll of the common bench of the Easter Term of 1271 will serve to illustrate the multiplicity and diversity of these writs: Miscella- neous Actions for Land, 185; Writ of Right, 12; Writ of Entry, 21; Novel Disseisin, 5; Mort d' Ancestor, 7; Aiel, Besail, Cosinage, 8; De Rationabili Parte, 2; Nuper Obiit, 1; Little Writ of Right, 1; Monstraver- unt, 2; Right of Adowson, 1 ; Darrein Presentment, 15; Quare impedit, Quod permittat presentare, Quare non admisit, 14; Assize Utrum, 6; Quare eiecit infra- terninum, 3; Dower, 189; Escheat, 1; Quod permittat habere, 7; Quod permittat fugare, 1; Quare levavit mercatum, 1; Quod reparari faciat stagnum, 1; Quo iure, 1; Customs and Services, 15; Mesne, 17; Writs relating to wardships, 12; De nativo habendo, 10; 8 White's Outline of Legal History, pages 64 and 65. 156 LEGAL HISTORY. Quare non permittat se talliari, 1; Warantia Cartae, 26; Per quae servicia, 1; De Fine Facto, 9; Waste, 1; Account, 8 ; Annuity, 18 ; Quare subtrahit, 1 ; Covenant, 35; Debt, 53; Detinue, 11; Deceit, 1; Rescue, 2; Replevin, 35; Statutory Actions for unlawful distress, 11; Trespass, 85; Actions analogous to Trespass, 3; Appeal of homicide, 3; Appeal of robbery, 4; Appeal of wounds and mayhem, 1 ; Appeal of imprisonment, 1 ; Appeal of felony (unspecified), 1; False judgment, 6; Error, 1; Prohibition, 11. The following additional forms of writs which do not appear during the Easter Term of 1271 are to be found in near-by terms : De Rationabilibus Divisis, 1 ; Formedon, 1 ; Quod permittat prosternere, 3; De secta ad Molendium, 2; Quod capiat homagium, 2; De libertate probanda, 2; Appeal of larceny (by approvers), 3; Appeal of rape, 11; Attaint, 3; Certification, I. 7 SECTION 65. THE STATUTE OF WESTMINSTER II. Although these original writs were thus very numerous, the extent of the jurisdiction of each writ was very limited. For example, the famous Assize of Mort d' Ancestor could be used to recover land of which the plaintiff claimed as either the heir of his father, mother, uncle, aunt, brother, or sister, but could not however, be extended to cover the case where the land was claimed as the heir of the grandfather or cousin, and new actions were necessary to provide for such cases. In early times the Clerks of Chancery to whom the duty of issuing these original writs fell, were per- mitted to issue new writs to cover new cases as they 7 Pollock and Maitland's History of English Law. Volume II, page 563. First Edition. THE ENGLISH COMMON LAW. 157 arose. Afterwards, however, for reasons explained later in this work, this right was taken from them, with the result that the common law became very rigid and failed absolutely to furnish relief in many cases where rights or wrongs undoubtedly existed. An attempt was made to remedy this by the pro- vision of the Statute of Westminster II, that the Clerks in Chancery, should be authorized to issue writs in cases which could not be brought under any of the existing forms of writs but which were similar to cases covered by the existing writs. This statute was the basis for a few new forms of action (e. g., Trespass on the Case, Trover, Assumpsit, etc., which will be dis- cussed under the subject of Common Law Pleading) but did not entirely remedy the existing conditions. For this purpose a supplemental system of jurispru- dence was found necessary. 8 SECTION 66. CRIMINAL LAW. It is very difficult to write a brief account of any early criminal system which will convey much meaning to any person unfamiliar with the subject. The most fundamental underlying principles of criminal law are so different in all early systems from those with which we are accustomed today, that almost every term or expression used, itself requires an explanation. England, during the early Norman Conquest, was in the transitory stage from the old system of blood feuds and individual vengeance to the system where all members of the community (at least in theory) sub- mit their wrongs to the decision of the regular tribunals. One of the most striking characteristics of the English criminal law of this period was the procedure known as Outlawry. "Though we must not speculate about a tune in 1 For an account of the subject of Chapter VIII and also the sub- Equity Jurisprudence, see ject of Equity Jurisprudence. 158 LEGAL HISTORY. which there was no law, the evidence which comes to us from England and elsewhere invites us to think of a time when law was weak, and its weakness was displayed by a ready recourse to outlawry. It could not measure its blows; he who defied it was outside its sphere; he was outlaw. He who breaks the law has gone to war with the community; the community goes to war with him. It is the right and duty of every man to pursue him, to ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a 'friend- less man, ' he is a wolf. Even in the thirteenth century, when outlawry had lost its exterminating character and had become an engine for compelling the contu- macious to abide the judgment of the courts, this old state of things was not forgotten; Caput gerat lupinum in these words the courts decreed outlawry. Even in the nineteenth century the King's right to 'year, day and waste' of the felon's land remained as a memorial of the tune when the decree of outlawry was a decree of fire and sword. "A ready recourse to outlawry is, we are told, one of the tests by which the relative barbarousness of various bodies of ancient law may be measured. Grad- ually law learns how to inflict punishment with a discriminating hand. In this respect some of the Scandinavian codes, though of comparatively recent date, seem to represent an earlier stage than any to which our Anglo-Saxon dooms bear witness; outlawry in them is still the punishment for many even of the smaller deeds of violence. Among our English fore- fathers, when they were first writing down their cus- toms, outlawry was already reserved for those who were guilty of the worst crimes." 9 9 Pollock and Maitland's History of English Law, Volume U, pages 447-448, First Edition. THE ENGLISH COMMON LAW. 159 It is during the twelfth and thirteenth centuries that torts and crimes became separate. Money pay- ments in atonement for crimes still continued. The fines for the greater offenses gradually became so high as to mean being sold into slavery, for the poorer classes. Gradually a distinction began to be made between those crimes for which money-payment could be accepted and those for which it could not. We find here the beginning of the distinction between felonies and misdemeanors. Capital punish- ment was abolished by William the Conqueror, but was soon restored. SECTION 67. JURY TRIAL. The most fundamental characteristic of the Eng- lish common law, on both its civil and criminal side, is that of trial by jury. Although the pride of the English race, this legal institution is not of indigenous growth. Many origins for the jury have been sug- gested but the probabilities are that it is an outgrowth of the Prankish Inquest. The members of the Frank- ish Inquest, and of the early jury, were men who were supposed to be in a position to judge from their own knowledge as to the truth of the controversy. They combined within themselves the dual character of wit- nesses and judges. Trial by inquest became the method of trial in the four so-called petty assizes (Utrum, disseisin, mort d 'ancestor, and darrein pre- sentment). "Trial by jury, in the narrowest sense of that term, trial by jury as distinct from trial by an assize, slowly creeps in by another route. The principle from which it starts is simply this, that if in any action the litigants by their pleadings come to an issue of fact, they may agree to be bound by the verdict of a jury, and will be 160 LEGAL HISTORY. bound accordingly. In course of time the judges will in effect drive litigants into such agreements by saying 'You must accept your opponent's offer of a jury or you will lose your cause;' but in theory the jury only comes in after both parties have consented to accept its verdict." 10 The right of trial by jury was for a long time confined to certain forms of action; in other forms the wager of law and the wager of battle were permitted even as far down as the nineteenth century. This state of affairs largely accounts for the disappearance of certain actions and the growth of others. The old forms which still permit the wager of law and the wager of battle become obsolete and the newer forms which carry with them the jury trial take their place. SECTION 68. DOMESTIC RELATIONS. The exact state of the law relative to marriage in the early Norman period is a matter of much uncer- tainty. In spite of some authorities to the contrary, it is quite certain that no religious ceremony, or in fact, any ceremony of any kind, was required for a legal marriage. The so-called common law marriage was probably, for some centuries, the most common kind. Great stress was laid upon the question as to the present or future tense of the promise. The distinction be- tween these two forms of common law marriage will be discussed under the subject of Domestic Relations. The contest between the common law courts and the ecclesiastical courts for jurisdiction did much to occasion confusion in this branch of the law. In many suits, the litigants would be compelled to go backward and forward between the two courts on account of the 10 Pollock and Maitland's History of English Law, Volume I, page 128, First Edition. THE ENGLISH COMMON LAW. 161 inability of either to render a decision covering the whole subject. Two forms of divorce existed in the early common law period. The absolute divorce, a vinculo matri- monii, and the divorce a mensa et thoro, corresponding closely to our present separate maintenance. The control of the husband over both the property and person of his wife, was absolute. The rights and duties of the parents toward their children were not very different from those existing at the present tune. The extreme right of the father over the child existing in the Roman law never was introduced into England. Adoption was unknown in the early common law. Bastards were considered the sons of nobody, and had no right of support or inheritance. The common law never divided bastards into different classes with various degrees of rights, as was the case with all continental systems. For example, Las Siete Partidas, the most important Spanish code of the middle ages, divided this class of children into seven classes. SECTION 69. EARLY CONTRACT LAW. Contract Law occupies a very unimportant place in the early Common Law. As in all other Teutonic law systems, we find only formal and real contracts. The consensual contract was absolutely unknown. Gran- ville enumerates the following early real contracts: mutuum, commodatum, depositum, locatum, vadium and emptio-venditio. The first five were forms of bailment, the latter a form of bargain and sale the theory of which was very different from that existing at the present time. In addition to the real contract the formal sealed contract was growing up at the time Granville wrote. The difficulty of establishing disputed facts before a I. 11. 162 LEGAL HISTORY. court gave particular force to a sealed instrument, and this was long the only method of proof of any existing contract other than a real one. Debt was in early tunes, considered as in the nature of a real action. SECTION 70. DEVELOPMENT OF CONTRACT LAW. A rapid development of the Contract Law began in the twelfth century. Several causes contributed to this result. The increased wealth and commerce of the country made a more convenient and highly developed system of contract law an absolute neces- sity. The surrender, by the Constitution of Clarendon, by the ecclesiastical courts, of their claims to jurisdic- tion over this subject threw the work upon the common law courts. The Statute of Westminster II, by fur- nishing the action of assumpsit, gave a convenient method by which contracts other than the real and formal ones could be enforced. The development of the contract law of England is closely connected with the growth of this action and will be discussed under Subject 34, "Common Law Pleading. " Ad- ditional treatment of contract law will also be found under Subejct 6, "Contracts." SECTION 71. CONTEST BETWEEN THE COMMON LAW AND THE ClVIL AND CANON LAW. It has been seen how Roman laws and institutions, which survived on the continent after the Teutonic conquest, failed to do so in the British Isles. The influence of the Roman law was to be felt, however, in England at a later period. Some slight knowledge of the Roman law came across with the lawyers who followed William the Conqueror after the Norman Conquest, but it was not until the next century that it began to exert any marked influence upon England. The twelfth century was throughout all Western THE ENGLISH COMMON LAW. 163 Europe a century of revived interest and diligent study of the Roman law; it was lamented by some writers of that period, that all other branches of learning were neglected in the sudden enthusiasm for this study which had seized upon scholars. The early medieval laws of Western Europe, based upon corrupted codes of Roman law, still further corrupted by the infusion of the laws and customs of the Teutonic conquerors, were rapidly replaced by new scientific codes, based as closely as changed conditions would allow, upon the old Roman codes of Theodosius or Justinian. Roman law principles, moreover, were largely the basis of the new system of canon law administered in the ecclesiastical courts of the Church, whose jurisdic- tion was at this tune being rapidly extended. It was in its two forms of the civil and canon law that the Roman law invaded England during this twelfth century, and for a tune the extension of its influence, along both these lines, was very rapid. The ecclesi- astical courts of the Church, administering the canon law, rapidly increased their jurisdiction; while the principles of the civil law became more and more resorted to by the judges of the King's courts in the regular settlement of the cases which came before them. For a time it seemed that what had been done in Western Continental Europe was about to be re- peated in England, and her system of jurisprudence become merely a branch of the world wide Roman law. Roman law, however, was meeting in England a far more worthy contestant than it had hitherto en- countered. The old English common law system, dating back into Anglo-Saxon times to the days of the seven kingdoms, numbering among its creators such men as Ine, Aelfred, and Dunstan; the combination of all 164 LEGAL HISTORY. that was best in the laws of the West Saxon, and Mercian, and the other kingdoms; enriched and strengthened by the work of Dane and Norman, had become a part of the very life of the English people. It was a system less scientific, less carefully worked out than the Roman law, but one containing within itself certain elements of rugged strength in which the old system was lacking. It was, moreover, a system adapted to the needs of the people and times in which it existed. The result was a resistance on the part of the English people to the Roman law, which saved for themselves their own national laws, and resulted in the existence of two great systems of laws in the world instead of one. The encroachments of the ecclesias- tical courts were checked in 1164, when Henry II forced upon the Church the Constitution of Clarendon, which put definite limits upon the jurisdiction of these courts. The introduction of Roman law principles into the English law continued down to the Assize of Merton, in 1238, when, to a new proposal to change the English law to correspond with the Roman law, the barons of England returned their historic reply: "Nolumus leges Angliae mutare." (We do not wish to change the laws of England.) The contest between the Roman law and the English common law was now over and the English common law remained the victor in the field. The effect upon itself, of the con- test, however, still remained. Not only had it been modified by the various Roman law principles which had been adopted, but it also had been affected in a diametrically opposite direction. The long and hard fought contest which the people of England had waged for their old English laws had had the natural tendency to greatly enhance their affection for those THE ENGLISH COMMON LAW. 165 laws. The English common law had become some- thing sacred; something not to be lightly altered; "nolumus leges Angliae mutare" had become the motto of the English people, and the result was that the English law became rigid, and ill adapted to meet newly arising conditions. Especially was this true in the field of the adjective law. As already stated there existed certain original writs, creating certain forms of relief, and if a person had a case which entitled him to receive one of these writs he could obtain relief; otherwise the law was powerless to aid him. It has been shown how the attempt to remedy this state of affairs by the twenty-fourth chapter of the Statute of Westminster II, granting to the 'clerks in chancery the power to issue writs "in consimile casu," failed, on account of the liberal interpretation of this statute which would have done much towards remedying this defect, not being given to it. The result of this state of affairs was the development of the system of equity jurisprudence described in the following chapter. SECTION 72. IMPORTANT STATUTES OF THE SIXTEENTH AND SEVENTEENTH CENTURIES. The sixteenth and seventeenth centuries witnessed the passage of a number of important English statutes, which have been brought to America and constitute part of our present system of laws. In 1535 the famous Statute of Uses (27 Henry VIII) was passed. This statute will be fully treated in the next chapter and under the subject of Equity Juris- prudence. The same year saw the passage of the statute requiring the enrollment or registration of all deeds of Bargain and Sale. By the Statute of Wills (32 Henry VIII) it was provided that any person might 166 LEGAL HISTORY. dispose of, by will, two-thirds of his land held in chivalry and all of his land held by socage tenure. In the fifth year of Edward VI it was enacted that the testimony of two witnesses should be required to convict of treason. During the reign of Elizabeth, there was passed the action against fraudulent deeds, alienation, etc. (13 Elizabeth, Chap. V) and the Statute of Charitable Uses (43 Eliz- abeth, Chap. Ill), which will be considered under the subject of Equity Jurisprudence. The reign of Charles II (1660-1685) has well been described as a period of good laws and bad government. Upon his accession to the throne, the vexatious incidents of different feudal tenures were abolished by a law entitled ' 'an act taking away the courts and wards and livers and tenures in capite, and by knights in service, and purveyance, and for settling a revenue upon his Majesty in lieu thereof." Sixteen years later was passed the famous statute of Frauds (29 Charles II, Chap. Ill) the text of which will be found in full as Appendix 0. Three years after- wards the so-called Habeas Corpus action regulat- ing the service and return of this writ was enacted (31 Charles II, Chap. II). CHAPTER VIII. EQUITY JURISPRUDENCE. SECTION 73. RIGIDITY OF THE COMMON LAW. ' 'Every true definition of equity must be, to a greater or less extent, a history." Both at its origin and throughout its whole existence Equity Jurispru- dence has existed as a system of laws supplemental to the English common law. Bound by the principle that "equity follows the law," the jurisdiction of the latter system has always been limited to cases of a character for which the earlier and more basic system failed to provide. So long as the common law was in the process of formation, it was capable of being extended to cases not expressly provided for, but which were within the spirit of the existing law. Some discretion existed with the early judges where circumstances arose which called for special applications of the general legal principles. In course of time the decisions of the judges had created a series of precedents which were considered as of almost equally binding authority on succeeding judges as were the acts of the great council. The common law had now become in effect a system of written law. It is to this crystallization of the old com- mon law customs into written decisions that many legal historians assign the evolution of the law into that form which rendered further development impractical, and created the necessity for a new and supplemental system of jurisprudence. 167 168 LEGAL HISTORY. The rigidity of the common law during the thir- teenth and fourteenth centuries, however, may be more properly ascribed to a far different cause. To appre- ciate the origin and development of this new influence in English law requires a brief return to the long contest between the common law and the Roman law which has been described in Section 71. The contest between the Roman law and the English common law was finally over and the English common law remained the victor in the field. The effects upon itself, of the contest, however, still remained ; not only had it been modified by the various Roman law principles which had been adopted, but it also had been affected in a diametrically opposite direction. The long and hard fought contests which the people of England had waged for their old English laws had had the natural tendency to enhance greatly their affection for those laws. The English common law had become something sacred ; something not to be lightly altered. The result was that the Eng- lish law became rigid, and ill adapted to meet newly aris- ing conditions. Especially was this true in the field of the adjective law. There existed certain original writs, cre- ating certain forms of relief, and if a person had a case which entitled him to receive one of these writs he could obtain relief ; otherwise the law was powerless to aid him. An attempt was made to remedy this state of affairs by the twenty-fourth chapter of the Statute of Westminster II, granting to the clerks in Chancery the power to issue writs "in consimilu casu." A liberal construction of this statute would have done much to remedy existing conditions, but a liberal interpretation was not given to it. The statute created a few new forms of action, such as trespass on the case, assumpsit, etc., and then its influence stopped. The EQUITY JURISPRUDENCE. 169 common law soon became as rigid as before and cases frequently arose where the party wronged could obtain no redress under the existing law and modes of pro- cedure. SECTION 74. BEGINNINGS OF EQUITY JURISPRUDENCE. In such cases, one last resort, and only one, was left to the party needing relief. The King was still considered as the head of the judicial system of the country, and the fount from which all justice was ulti- mately derived. It was in his power, if he so desired, to sit as a judge in any of his courts; it was in his power to grant extraordinary relief in special cases. A direct petition to the King was therefore the course pursued by those who could not obtain redress at the common law, either because of the defects of that system, or because of the power and high position of their antag- onists. The King, being too busy to deal with these matters himself, referred them to the various high officials of his court, and gradually he began to refer them more and more to his Chancellor, until finally, the Chancellor had jurisdiction in all such cases and petitions began to be addressed to the Chancellor directly, instead of to the King. For nearly three centuries we find equity jurisdiction in what might be called its formulative state. The theory of the equity judges was largely summed up in the equitable maxim: * 'Equity will not suffer a right to be without a remedy." During this period new classes of cases were constantly taken jurisdiction of, and new methods of relief granted, by the authority of the judges themselves, and without any parliamentary sanction. Finally, near the begin- ning of the seventeenth century, this formulative period 170 LEGAL HISTORY. came to an end; a general outline of equity jurisdiction had become established and equity jurisdiction could no longer be extended by the authority of its own judges. The extraordinary or equitable jurisdiction of the court of Chancery seems to have been permanently established as a distinct system of jurisprudence during the reign of Edward III. This may perhaps be mainly attributed to the writ or ordinance of the twenty-second year of his reign which referred all petitions addressed to him relating to matters which were as "of grace " to the Chancellor or keeper of the privy seal. In spite of this writ, however, questions of this character were still referred at times to the Great Council or the Privy Council. The exclusive jurisdiction of the Chancery court dates from the succeeding reign, in which petitions or bills (as they now began to be called) began to be addressed directly to the Chancellor. SECTION 75. EQUITY JURISPRUDENCE IN THE REIGN OF RICHARD II. The reign of Richard II. witnessed an attack upon the growing equitable jurisprudence by the House of Commons. The various grounds of complaint set forth by this body were: (1) That persons were called into the Court of Chancery, not upon any specific complaint, but quibusdam certis de causis; (2) that persons were unlawfully compelled to answer in this new court as to their franc tenement (something almost sacred in the minds of landowners) and to disclose the titles under which such franc tenements were held; and (3) that the course of proceeding was not accord- ing to the common law but to that of the Holy Church EQUITY JURISPRUDENCE. 171 (t. e., the canon law) and that this extraordinary juris- diction was employed as a means of extortion. This whole remonstrance is directed against the increasing jurisdiction of the Court and not against its existence. The failure of the House of Commons to secure the reforms above mentioned was followed by the pas- sage of the statute of 17 Richard II., C. 6, providing that where persons were compelled to appear before the Court of Chancery on charges found to be untrue, the Chancellor should have the power to award dam- ages. Damages to defendants in cases where the charges, although true, did not constitute a cause of action were allowed by a statute of the reign of Henry V. By the statute of 15 Henry VI., C. 4, sureties were required for the payment of such damages before the writ of subpoena was allowed to issue. Sureties, how- ever, were required as a matter of fact from the reign of Richard II. It was also in the reign of Richard II. that the writ of subpoena began to be employed regularly in the Court of Chancery. The invention of this writ is popularly ascribed to John de Waltham, who was Master of the Rolls from 1381 to 1387. This reputation rests for its support upon the petition of House of Com- mons in reign of Henry IV. praying for the abolition of this new and obnoxious writ and charging its invention to the "craft" of the above mentioned official. This view of the origin of the writ is certainly erroneous. There are authenticated instances of the use of the writ as early as the reign of Edward III. to bring cases before Parliament. This writ, in fact, differed little from the older writ of "quibusdam certis de causis" already much used by the Court of Chancery. The work of John de Waltham was merely the adoption of the writ 172 LEGAL HISTORY. of subpoena as the ordinary method of bringing defend- ant before this court. The increased activity of the Court of Chancery (due to other causes) immediately after the adoption of this writ, caused both contem- poraneous and future writers to attach an undue importance to the event. The principle that equity was only a supplemental system of law, controlled in many respects by the common law, appears to have been clearly recognized by both law and equity judges during the early centu- ries of equity jurisprudence. We find Chief Justice Coke writing: "He who knew not the common law could never judge well in equity, which is a correction of law in some cases." Common law judges often sat in equity cases. For example in Broderip vs. Gyfford it is recorded that: "The matter being somewhat doubtful" a further hearing was ordered, at which two common law judges were called in. SECTION 76. FORMS OF EARLY BILLS. The early forms of the petitions or bills in chancery show a surprising resemblance to those of a more modern date. The causes for going into equity were, however, somewhat different from those at the present time. "The Court of Chancery became necessary because it was found that the courts of common law were, from various causes, frequently unable to do justice to suitors. This might result from two classes of reasons: (1) From the inelasticity of its principles and practice; (2) from the peculiar situation of the parties in cases which could otherwise have been dealt with at common law. "The first of these classes constitutes what came EQUITY JURISPRUDENCE. 173 at a later date to be called equitable matters cases to be decided in Chancery on principles peculiar to itself. "The second class were not concerned in any way with its doctrines of equity; and some time towards the end of the fifteenth century, the Court of Chancery ceased to deal with them altogether. In the early days of the Court, however, such cases formed by far the principal bulk of the work of the Court." 1 The cases of the second class are mostly concerned with the power and violence of the defendant, as can be seen from the following examples of early bills of this character: "To the most honorable and most reverend Father in God, the Bishop of Exeter, Chancellor of England. "Complaineth this poor chaplain, David Uspe, formerly Vicar of the church of Pawlett in the County of Somerset, that whereas one William Bawe, Parson of the church of Grenton in the said county, on the Friday before the Feast of Pentecost in the 20th year of our Lord King Richard, who now is, with force and arms, and six other men unknown, his adherents, with him, fully arrayed in arms in warlike manner, came to the said church of Pawlett when the said David was vested for mass, before he had said the Gospel of St. John which is called In principio; and in the chancel of the said church he commanded the said David, who was at his altar, vested, to take off his vestments and to speak with them; the which David answered and said unto them that he would not take off his vestments until he knew their will; the which William Bawe and the others of his covin said expressly that they would cut off his head if he would not make fine with them 1 Selden's Society Publications; Select Cases in Chancery. 174 LEGAL HISTORY. for 100 marks; and for fear of this menance, the said David made fine and ransom with the said William and his company for 10 sterling in order to save his life. And after the said William and his company ransomed the said David in manner aforesaid, the said William and his adherents made the said David swear in his priestly word to go with them out of his said church to the town of Bridgewater, and there they forced him to make a bond to them for 20, on con- dition to pay the said 10 on Friday then next follow- ing; and after the said David had made the said bond, the said William and his adherents compelled the said David to deliver unto them, in default of other pay- ment, as the price of his said ransom, all his sheep, his lambs, his pigs, and his other goods, on the Saturday in the eve of Pentecost following next after the afore- said Friday on which day the said William and his company took the goods of the said David and de- livered up to him his said bond. And the said sheep, lambs, and other goods, they brought to the house of the said William at Alverton, and they are still there in ward, to the great destruction and annihilation of the plaintiff's poor estates, and against all law and right; May it please your most gracious Lordship to grant the said David a writ de quibusdam certis de causis, to make the said William come before you at a certain day and under a certain pain contained in the writ, to make answer to this bill; for God and in way of charity. Having consideration that the said William is so rich and strong in friends in the country where he dwelleth, that the said David will never re- cover from him at common law, if he have not aid from your most gracious Lordship." "To the Most reverned Father in God, and most EQUITY JURISPRUDENCE. 175 gracious Lord, the Bishop of Exeter, Chancellor of England. "Beseecheth humbly Simon Hilgay, parson of the church of Hilgay, that whereas he hath charge and cure of souls of the same parish, and is menaced by one Robert de Wesnam, and by John at Gotere, John Bilney, John Walmer, Robert Walmer, John Mody and Henry at Fen, associated and confederated with the said Robert de Wesnam; and they do menace him from day to day, so that he dare not, in this most holy time of Lent, approach his said parsonage to hear the confessions of his parishioners, for fear of unmerited death; and for the purpose of their evil design, the said Robert de Wesnam, with the others above named, on the Tuesday in the first week on Lent last past, 22 Richard II, chased and pursued the said suppliant with force and arms, to-wit, naked swords drawn, clubs and bucklers, from the town of Fincham hi the County of Norfolk to the town of Crimplesham, which are two leagues distant, in order to have killed him, and there they did beat one John Ouere, who was in his company at that time; and moreover, considering that the said Robert de Wesnam hath so many evil- doers associated and confederated with him, and is of such horrible maintenance, so that the said suppliant can never come to his recovery against him and the others at common law without your most gracious aid; May it please your most gracious Lordship to consider the matter aforesaid and thereof to make tight and remedy for the said suppliant according to your most wise discretion; For God and in way of charity. "Indorsed. By virtue of this supplication the within written Simon Hilgay, parson of the church of 176 LEGAL HISTORY. Hilgay, hath four writs directed to the persons within written (commanding them) to be before the King and his Council in his Chancery on the Thursday after the feast of S. Gregory next to come, to answer upon the contents (hereof )." Many other illustrations of similar reasons for seeking the aid of equity might be given. In 1388, John S. Kernyng and Adam, who describe themselves as constables of the Hundred of Clavering, say that they dare not perform their office unless the defendants find sureties for their place. Near the beginning of the fifteenth century, it is charged in a bill against one Thomas Archer, "that he is so great a maintainer, extortioner and conducer of inquests in his country that no one dare contradict" him. In 1397, one Sibil, described as the "widow of Robert Darcy, knight," gives as the reason for her inability to sue at common law, the fact that no attorney dared to take her case on account of fear of the malice of the defendant. In many early cases the plaintiff simply says that he dares not sue at common law, while in a number of other cases the poverty of the plaintiff is the sole reason urged why the Chancellor should interfere. Another case, involving violence, which might also come under the head of unfair competition, is the following bill dated in 1397: "To his most honored and most gracious Lord, the Chancellor of England, showeth your poor servant, William Lonesdale, "Of Scarborough, merchant, that whereas the said William hath divers tunes by sea and by land, brought divers merchandise, to-wit, herring, kippered and salted, and other fish and victuals from the port EQUITY JURISPRUDENCE. 177 of Scarborough in the County of York to the town of Yaxley in the County of Huntington, to sell them there as well he might, to the great relief of all the country round the said town of Yaxley; and because he sold his merchandise at a less price than other merchants of the said town of Yaxley did there, Richard Suffyn, Thomas Clement and William Childe of Yarwell, and many other evil-doers, of their covin, lay in wait with force and arms to kill the said William Lonesdale, and they assaulted him, beat him and ill-treated him, and left him there for dead, so that he despaired of his life; May it please your most gracious Lordship to send for the said parties by writs of our Lord the King, to answer in his Chancery, as well for the said mis- deeds as for other thing which then shall be alleged against them: For God and in way of charity." Mingled with cases of the character already referred to were others bearing a resemblance to the cases which now furnish the work for the courts of equity. As we trace down the various ancient bills, from the reign of Edeard III. to the tune of the Stuart dynasty, we find each familiar class of jurisdiction, one after the other, beginning to come before the court, until by the reign of James I. the scope of equity jurispru- dence is practically co-extensive with it, as it exists to-day. Bills for the cancellation and delivery of instru- ments existed as early as the reign of Edward III., as is seen by the following bill, which furnishes an in- teresting commentary upon the scientific ideas of the period. "To the Chancellor of our Lord the King : "Prayeth Thomas de York, that whereas he know- eth how to work by science of alchemy and to make Vol. I. 12. 178 LEGAL HISTORY. silver implate, and hath done so in the presence of worthy folk of London, and the silver hath been as- sayed by the goldsmiths of the same city, and found good, there came one Thomas Crop of London, grocer, and made himself known to the said Thomas de York, so much so that he got him to carry his instruments and his elixir to his (Crop's) house, and got him to work in his house before him; and when the said Thomas Crop perceived the science thereof, wishing to have the said Thomas de York in danger, he, by cullusion between himself and other of the city, im- prisoned the said Thomas de York in the house of the said Thomas Crop in London, and there made him sign a bond in 100 marks to the said Thomas Crop, as on an account rendered, and afterwards another bond for the like sum and in the same form; and thus, by virtue of these bonds, the said Thomas Crop hath caused the said Thomas de York to be arrested and imprisoned in Newgate, and detaineth his elixir and his other instruments and other goods and chattels, to the value of 40; whereof the said Thomas de York prayeth for God's sake that he (the Chancellor) will be pleased to order his deliverance and to make the said Thomas Crop come with the elixir and the instruments aforesaid, so that he (the plaintiff) may work and prove his science before them (your Council) or any others whom it may please the King to assign, and that the false bonds may be cancelled." Bills of this character became quite common during the reign of Richard II. Fraud early appears as a ground for equitable relief. It might be added, in a defense of a too readily slandered profession, that in but one of the early equitable bills alleging fraud, which have come down EQUITY JURISPRUDENCE. 179 to us, is the alleged wrongdoer, a lawyer, while in at least half of the cases the deceit is attributed to some member of the clerical body. A specimen of bills of this character is here given : "To my most honored Lord, the Chancellor of England : "Showeth your clerk, John de Brampton, rector of the church of S. Dunstan in the west in London, that whereas he delivered to John Seymour, attorney, on the first day of June last, a release, on condition that he should have delivered to the said John de Brampton, that same day, 20 marks sterling or two bonds, the one being a bond for 40 made to Gunnora Horn of London, and the other for 12 made to the said John Seymour in the name of the said John Horn, together with a letter of attorney sealed with the seal of the said John Seymour, and the will of the said Gunnora Horn, which (documents) the said John Saymour had in his keeping on that same day, as it was agreed that same day between the said John, son of Nichols Horn of London, to whom the duty of the said bonds ought to and does belong, and the said John Seymour, then his attorney, the which agree- ment was made between them in the great Hall at Westminster; and John Seymour, maliciously and falsely scheming to deceive the said John de Brampton, showed him 20 marks in gold in his hand, and de- manded from him the said release, which John de Brampton gave him, hoping to have received the 20 marks, as was agreed, and not suspecting any fraud or ill device. But John Seymour, after he had re- ceived the release from John de Brampton, would not deliver to him the 20 marks nor the bond for 40, nor the letter of attorney, nor the will aforesaid, but doth retain them to the destruction of the estate of the said 180 LEGAL HISTORY. John de Brampton and contrary to the said agree- ment, and notwithstanding that he hath been required by the said John de Brampton to make restitution of the release, or of the bond, the letter of attorney and the will above said. May it please your noble Lord- ship to cause the said John Seymour to come before you in the Chancery on a certain day to be fixed by you to say why he should not deliver the said release, or the bond, letter of attorney and will abovesaid to the said John de Brampton, or to say why he should not be condemned by you to the said John de Bramp- ton in the said 52 contained in the said two bonds, together with the costs incurred and to be incurred by the said John de Brampton in the matter, since the agreement was made within the jurisdiction of the Chancery." SECTION 77. CONTEST WITH THE COMMON LAW COURTS. The growth of the extraordinary or equitable jurisdiction of the Chancery Courts was always viewed with jealousy by the common law judges, and at times openly resisted. No other claim made by the equity judges was so extremely distasteful to the common law judges as their attempts to interfere by injunctions in proceedings before other courts. In 22 Edward IV, Chief Justice Hussey advised the attorney for a plaintiff who had been enjoined from trying to collect his judgment, to proceed with execution regardless of such injunction, promising to release him on habeas corpus if he were committed for contempt of court. Upon this occasion the Chancery judges were com- pelled to give way. During the reign of Henry VIII, a barrister was EQUITY JURISPRUDENCE. 181 indicted in the Court of the King's Bench under the statute of praemunire for seeking such an injunction in the Chancery Court. The final result of the action is not recorded. The contest on this point reached its climax in the reign of James I. The question, after having been argued with great ability by Chief Justice Cole and Chancellor Ellesmere, was finally referred to the King, by whom it was referred to a commission with Lord Bacon at its head. The decision of this commission was in favor of the contentions of the Court of Equity. An illustration of the interference of equity courts in cases before Common Law Courts is found in the case of Clayborne vs. Royln, B. 1574, Cal. 342. The Mayor of Lynn had punished the defendant for incontinence, on which she brought an action against him for false imprisonment; the mayor filed a bill for an injunction. To what head of jurisdiction this application was addressed does not appear. The matter was referred to three masters. They reported that, although it appeared not to them that there was sufficient proof made before the plaintiff, late Mayor of Lynn, whereby he should justly proceed to the punishment of the defendant in such sort as he did, yet they found too much likelihood of evil behavior and suspicion of incontinency testified by some witnesses against the defendant, that they thought it very con- venient that the actions should be stayed, which the defendant had commenced at the common law, and thereupon this court to take such further order between the parties as to the same shall be thought meet; and an injunction was awarded accordingly. This authority to issue injunctions of this char- acter was about the last new power obtained by the 182 LEGAL HISTORY. Courts of Equity. What may be called the formu- lative period of equity came to an end about the beginning of the seventeenth century, and new actions could no longer be created by the authority and will of the judges themselves. At the time of the establishment of the English colonies in America, the equity courts had reached their full development and existed as a distinct system of courts, independent of, but auxiliary to the common law courts, and as such were carried over in America. SECTION 78. USES. Ownership in general involves two elements, the holding of the legal title and the right to the beneficial use. When these are separated, the legal title being granted to one party and the beneficial use to another, there is created a use or trust. Uses were first introduced into England as a result of the adoption of the Statute of Mortmain. This statute, passed in 1269, provided that no more land should be granted to any religious corporation. To evade the effect of the statute the ecclesiastical judges and lawyers invented the use, copied after the fidei commissei of the Roman law, so as to permit lands being granted to a third party to hold for the use of the church. This particular use of the use was stopped in 1392 by the passage of the Act of 13 Richard II., prohibiting land being granted to anyone to hold for the use of a religious corporation. The use, however, had been by this time widely adopted for many different purposes, both legitimate and illegitimate. It was used to avoid some of the incidents and hardships of the feudal tenures, to transfer (the beneficial interest in) land without the necessity of EQUITY JURISPRUDENCE. 183 livery of seisin; to defraud creditors; and to avoid forfeitures. A great impetus was given to its use for the last purpose by the War of the Roses, with its frequent changes of fortune and their accompanying executions and forfeitures. After the close of this war a great deal of opposition to uses developed in Parliament, and during the reigns of Henry VII. and Henry VIII., a series of acts was directed against them, the most important of which acts were as follows : 3 Henry VII., C. 4, forbidding deeds of gift on trust made to defraud creditors; 4 Henry VII., C. 17, de- claring uses liable to wardship and reliefs; 19 Henry VII, C. 15, declaring them liable to execution; 26 Henry VIII., C. 13, declaring them liable to forfeiture. These series of acts culminated in the famous Statute of Uses, 27 Henry VIII, which will be discussed in the following section. The introduction of uses into English law dates from about the same period of legal history as the creation of courts with equitable jurisdiction. As the rights of the cestui que use could at all tunes only be protected by the chancery courts, we find uses occupying an important place in equitable jurispru- dence almost from the origin of the system. The following is an illustrative early bill involving the doctrine of uses: "To the most reverend Father in God and his most gracious Lord, the Bishop of Exeter, Chancellor of England. "Humbly beseecheth William Holt, Esquire, that whereas Stephen Holt, his father, who died lately, before Michaelmas last, in his lifetime purchased certain lands, rents and tenements in the County of Sussex, and thereof enfeoffed Master John Debenham, 184 LEGAL HISTORY. Richard Monek, John Holt, William Goldsmith, clerks; Andrew Blake, John Bedeford, and others, to the intent (that they should) enfeoff him or his heirs when they should be required (to do so) ; after whose death, the said William, as son and heir of the said Stephen, his father, required them to enfeoff him according to the intent of the said feoffment; and they refused, and will not do it, but keep the said lands, rents, and tenements in their hands, by great extortion, and to the great damage of the said suppliant. May it please your most gracious Lordship to cause them to come before you by writ of our Lord the King, under a certain pain, and to examine them of the truth, and to do what right and good faith demand, so that no such extortion nor deceit be suffered; for God and in way of charity." SECTION 79. THE STATUTE OF USES. The Statute of Uses presents the anomalous picture of a statute which absolutely failed to accom- plish the purpose for which it was adopted, but which, nevertheless, became one of the landmarks in English legal history. The purpose of the statute was to en- tirely abolish passive uses by reuniting the legal title and the beneficial use in the hands of the party who possessed the beneficial interest. This result was thwarted by the ingenuity of the lawyers of the day, and the final effect of the statute was to establish uses (or trusts as they now began to be called) on a more secure and solid foundation than ever. How this result was brought about will be explained in detail under the heading of Equity Jurisprudence. As a secondary result the statute revolutionized the system of conveyancing. This result will be treated of under the heading of Real Property. CHAPTER IX. OUTLINE OF THE CONSTITUTIONAL, POLIT- ICAL AND LEGAL HISTORY OF THE THIR- TEEN COLONIES, AND OF THE UNITED STATES PRIOR TO THE ASSEMB- LING OF THE FEDERAL CON- STITUTIONAL CONVENTION. SECTION 80. ENGLISH COLONIZATION IN AMERICA. The history of the English colonies in America was, to a great degree, moulded by the character of the century in which these colonies were principally settled. The failure of Raleigh's attempts at colonization in the sixteenth century was, in the end for the benefit of the new Anglo-Saxon nation which was to arise in the New World. The character of the age of its settle- ment must be reflected permanently in the character of every colony. The sixteenth century was primarily a century of commercial enterprise and of adventure. We find the spirit of knight errantry of the Crusades existing side by side with the commercialism of the present day. The voyages, explorations and at- tempted colonization of this period were all tinged with the one or both of these influences. Any colonies which had owed their origin to the enterprises of such times must, of necessity, have been of the exploitation class. They could hardly have failed to have become colonies whose inhabitants would have looked upon America as merely a field for gain or adventure, and whose love and allegiance would have remained true 185 186 LEGAL HISTORY. to their old home across the Atlantic. Time would have lessened such conditions, but could hardly have eradicated them by the close of the eighteenth century. The seventeenth century was a century of far different character in English history; it was a century of intense religious and political awakening; a century which witnessed the greatest of all Anglo-Saxon con- tests for civil rights and political liberty. The char- acter of the English colonization during this century was, in the main, consistent with the character of the period itself. The colonists were, in general, men in whom the prevalent spirit of the age, the intense love of political liberty, and the resolute resistance to tyranny was strongly implanted. The century which gave to England the Petition of Right and the Bill of Rights, which sent one king to the block and an- other into exile, could give birth to colonies, which could be trusted in the future to resist any attempt to deprive them of those liberties which the great charters of the seventeenth century had declared to be the heritage of the Anglo-Saxon race. The title of England and of her colonists to the land within the limits of the thirteen colonies was partially based upon conquest from other European countries, but mainly upon the right of occupation of territory theretofore only inhabited by uncivilized people. The Supreme Court in the case of Johnson vs. Mclntosh, 1 considered in detail the history of the colonizing efforts of the various European countries, and the authority upon which title to land in the New World rested. "On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could 1 8 Wheaton, 543. LEGAL HISTORY OF THE COLONIES. 187 respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascend- ancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settle- ments, and consequent war with each other, to es- tablish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority it was made, against all other European governments, which title might be consummated by possession. "The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. 'Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. "In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a con- 188 LEGAL HISTORY. siderable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it. "While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised as a consequence of this ultimate dominion, a power to grant the soil, while yet in pos- session of the natives. These grants have been un- derstood by all to convey a title to the grantees, sub- ject only to the Indian right of occupancy. "The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles. "Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title. "France, also, founded her title to the vast territories she claimed in America on discovery. However conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. Her monarch claimed all Canada and LEGAL HISTORY OF THE COLONIES. 189 Acadia, as colonies of France, at a time when the French population was very inconsiderable and the Indians occupied almost the whole country. She also claimed Louisiana, comprehending the immense territories watered by the Mississippi, and the rivers which empty into it, by the title of discovery. The letters patent granted to the Sieur Demonts, in 1603, constitute him Lieutenant-General, and the representative of the King of Acadia, which is described as stretching from the fortieth to the forty-sixth degree of north latitude; with authority to extend the power of the French over that country and its inhabitants; to give laws to the people; to treat with the natives, and enforce the observation of treaties, and to parcel out and give title to lands, according to his own judgment. "The States of Holland also made acquisition in America, and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith, in his History of New York, that Henry Hudson, who sailed, as they say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed, to the forty-third degree of north latitude; and this country they claimed under the title acquired by this voyage. Their first object was commercial, as appears by a grant made to a company of merchants in 1614; but in 1621, the States-General made, as we are told by Mr. Smith, a grant of the country to the West India Company, by the name of New Nether- lands. "The claim of the Dutch was always contested by the English, not because they questioned the title given by discovery ; but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword. 190 LEGAL HISTORY. "No one of the powers of Europe gave its full assent to this principle more unequivocally than Eng- land. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover coun- tries then unknown to Christian people, and to take possession of them in the name of the King of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title. "In this first effort made by the English govern- ment to acquire territory on this continent, we per- ceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission is confined to countries 'then unknown to all Christian people'; and of these countries Cabot was empowered to take possession in the name of the King of England, thus asserting a right to take posses- sion, notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery. "The same principle continued to be recognized. The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen and barbarous lands as were not actu- ally possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms. "By the charter of 1606, under which the first permanent English settlement on this continent was made, James I granted to Sir Thomas Gates and others, those territories in America lying on the sea coast, LEGAL HISTORY OF THE COLONIES. 191 betwesn the thirty-fourth and forty-fifth degrees of north latitude, and which either belonged to that monarch, or were not then possessed by any other Christian prince or people. The grantees were divided into two companies, at their own request. The first, or southern colony, was directed to settle between the thirty-fourth and forty-first degrees of north latitude; and the second, or northern colony, between the thirty-eighth and forty-fifth degrees. "In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged charter was given by the crown to the first colony in which the King granted to the Treasurer and Company of Adventurers of the City of London for the first colony in Virginia/ in absolute property, the lands extending along the sea coast 400 miles, and into the land throughout from sea to sea. This charter, which is a part of the special verdict in this cause, was annulled, so far as respected the rights of the company, by the judgment of the Court of King's Bench on a writ of quo warranto; but the whole effect allowed to this judgment was to revest in the crown the powers of government, and the title to the land within its limits. " At the solicitation of those who held under the grant to the second or northern colony, a new and more enlarged charter was granted to the Duke of Lenox and others, in 1620, who were denominated the Ply- mouth Company, conveying to them in absolute property all the lands between fortieth and forty- eighth degrees of north latitude. " Under this patent, New England has been in a great measure settled. The company conveyed to Henry Rosewell and others, in 1627, that territory 192 LEGAL HISTORY. which is now Massachusetts; and in 1628, a charter of incorporation, comprehending the powers of govern- ment, was granted to the purchasers. " Great parts of New England were granted by this company, which, at length, divided their remaining lands among themselves; and in 1635, surrendered their charter to the crown. A patent was granted to Gorges for Maine, which was allotted to him in the division of property. " All the grants made by the Plymouth Company, so far as we can learn, have been respected. In pur- suance of the same principle, the King, in 1664, granted to the Duke of York the country of New England as far south as the Delaware Bay. His Royal Highness transferred New Jersey to Lord Berkeley and Sir George Carteret. " In 1663, the crown granted to Lord Clarendon and others, the country lying between the thirty-sixth degree of north latitude and the river St. Mathos; and, in 1666, the proprietors obtained from the crown a new charter granting to them that province in the King's dominions in North America which lies from thirty-six degrees thirty minutes north latitude to the twenty-ninth degree, and from the Atlantic Ocean to the South Sea. " Thus has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial government, the King claimed and exercised the right of granting lands, and of dismembering the government at his will. The grants made out of the two original colonies, after LEGAL HISTORY OF THE COLONIES. 193 the resumption of their charters by the crown, are examples of this. The governments of New England, New Jersey, New York, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the tune the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the crown unaccom- panied by the powers of government, as in the case of the northern neck of Virginia. It has never been objected to this, or to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account." SECTION 81. THE THIRTEEN COLONIES. Twelve of the colonies had come into political existence before the close of the seventeenth century; the thirteenth colony was added near the beginning of the ensuing century. It was the political life in the individual colonies, rather than the larger political life of England, which was to prepare the American colo- nists for the great work of constructive government presented to them at the close of the eighteenth cen- tury. As has been stated in the previous chapter, the evolution and changes in English constitutional law, after the passage of the Bill of Rights, had little influence upon colonial institution or thought. United political action by the thirteen colonies was only to come into existence at the very threshold of the Revolu- tionary War. It is therefore necessary in order to prepare for the study of the great American Constitu- tional Convention, and for the Constitution which this convention prepared, to supplement the study of the Constitutional, legal and political history of England with that of the constitutional, legal and political Vol. I. 13. 194 LEGAL HISTORY. history of the various English colonies in America. The form of government and the characteristics of political life in the various colonies, differed greatly from each other. It is partly to this difference of poli- tical training that there is to be ascribed the far diver- gent views of government with which the representa- tives of the various States met at Philadelphia in 1787. In order, therefore, to understand clearly the existing political conditions in America in the pre-constitutional period, it is necessary to consider briefly the case of each of the thirteen colonies. Before doing so, how- ever, a few general observations may be made. The colonies, as to their general system of govern- ment, fall into three clearly defined classes, the charter colonies, the proprietary colonies, and the royal prov- inces. To the first class belonged Rhode Island, Connecticut, and Massachusetts; to the second, Penn- sylvania, Delaware, and Maryland; to the third, New Hampshire, New York, New Jersey, Virginia, North Carolina, South Carolina, and Georgia. The charter colonies were governed under charters granted by the King directly to the government, and were by far the freest of the American colonies. The charters of two of these charter colonies, Rhode Island and Connecticut, were very liberal; so liberal in fact that in each case they were continued in use as the constitutions of the State, for many years after the American Revolution. These two colonies were almost independent Republics, owing hardly more than a nominal allegiance to England. The charter of Massa- chusetts was much less liberal; in reality the govern- ment of this Commonwealth bore a much stronger resemblance to that of the royal provinces than to that of the neighboring charter colonies. The proprietary colonies were illustrations of that LEGAL HISTORY OF THE COLONIES. 195 ancient confusion between the right of sovereignty and rights of property. They bore in many respects a strange resemblance to those old feudal fiefs where the grantee of the King held not only a right of property in the land, but also the power of government over the inhabitants in such territory. The degree of self- government allowed to the citizens of these proprietary colonies was about equal to that enjoyed by those of the royal provinces. The powers which the King possessed in this latter class of colonies were in the main granted, in the case of the proprietary colonies, to the proprietors. The royal provinces were the most directly under the control of the English govern- ments. The inhabitants of these colonies were granted the privileges of choosing the most numerous branch of the legislative body while the appointment of all other officials was either directly or indirectly in the hands of the crown. The political history of the majority of the colonies was at times stormy to a degree. The political controversies in these colonies were generally contests between the legislative and executive branches of the colonial government. As the legislative bodies were the representatives of the people, and the executive, in all the colonies except Rhode Island and Connecticut, the appointees of the King, the legislative branch of the government came to be regarded by the people as the defenders of their liberties and the executive as the instruments of tyranny. SECTION 82. THE COLONIAL GOVERNMENT OF VIR- GINIA. The colony of Virginia was the first permanent English settlement in North America. It was settled under the grant made by James I, in 1606, to the Lon- 196 LEGAL HISTORY. don Company, a company of ' 'noblemen, gentlemen, and merchants/' of that part of North America lying between the thirty-fourth and thirty-eighth degrees of north latitude. A later charter provided for the government of this territory, naming a number of cor- porators, who were made a public corporation, and given power to take out such persons as colonists as they might choose, to admit or expel members, and to have the general power of governing the colony as to all local matters. The increasing dissatisfaction of the colonists with their entire lack of any share in the government finally induced Governor Yeadley, in 1819, to call a general assembly, composed of representatives from the various plantations in the colony, which was the first representative legislative body which ever sat in America. A further step in the direction of free government was taken in 1621, when a regular govern- ment was created by ordinance, composed of a Gover- nor, Council, and a House of Burgesses elected by the people. To this General Assembly was granted free power as to all matters of local nature concerning the general welfare of the colony; with the power to enact such laws as appeared necessary or requisite. In 1623-24, the House of Burgesses assented by law that the Governor "shall not lay any taxes or imposts on the colonists, their lands or commodities, otherway than by the authority of the General Assembly, to be levied and employed as the said Assembly shall ap- point. This law was re-enacted in 1631, in 1632 and (in a different form) in 1642. To this claim the people of Virginia always adhered, although it at times met with opposition from King and Governor. Virginia, which almost alone of the colonies had been largely settled by the upper classes of England, and which LEGAL HISTORY OF THE COLONIES. 197 was Episcopal in religion, espoused the royal side in the great English Civil War of the seventeenth century. In spite of this, however, they were given a greater degree of self-government under the Commonwealth than they had ever enjoyed under the King, being allowed, during this period, to elect their governor. Under the restoration of Charles II, the government of Virginia reverted to its former condition and Vir- ginia remained a royal province down to the tune of the Revolution, except for a short experience as a proprietary colony toward the end of the reign of Charles II. Virginia was throughout the colonial period the largest and richest of all the colonies, and also one of the most tenacious of her rights and liber- ties. The laws of Virginia, which provided, among other things, for primogeniture and an established state church, bore a much stronger resemblance to those of England than did those of the New England states. The town or township organization was unknown, the country being the political sub-division possessed of all the powers of local government. SECTION 83. MASSACHUSETTS. The second of the thirteen colonies in order of settlement was Massachusetts. Virginia and Massa- chusetts were always the two leading English colonies in America. Although the two are found together in the eighteenth century, leading the way for independ- ence, they nevertheless present many striking contrasts in their history, laws, religion, and government. The territory of Massachusetts was included in the grant of territory given to the Plymouth Company. Several different settlements, under distinct governments, were made in this territory; two of them, the Plymouth 198 LEGAL HISTORY. Colony and the Massachusetts Bay colony being finally united into the colony of Massachusetts. The earliest of these settlements was that made at Plymouth in 1620, by a small band of Puritan exiles from England. Before landing these emigrants drew up and signed the following agreement as to the new government to be created. "In the name of God, amen. We, whose names are underwritten, the loyal subjects of our dread Sovereign Lord, King James, etc., having under- taken for the glory of God and advancement of the Christian faith, and honor of our King and country, a voyage to plant the first colony in the northern part of Virginia, do, by these presents, solemnly and mu- tually, in the presence of God, and of one another, covenant and combine ourselves together into a civil body-politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof, to enact, constitute, and frame such just and equal laws and ordinances, acts, constitutions and officers, from time to time, as shall be thought most meet and convenient for the general good of the colony; unto which we promise all due submission and obedience." The Plymouth colonists, in 1629, obtained from the Plymouth Company in England a patent author- izing them to make laws for their own government. The legislation of this colony is a curious intermixture of Mosaic law and the common law. In 1636 the col- ony declared against all taxation but "by the consent of the body of freemen or their representatives legally assembled." In March, 1629, a charter was given by Charles I to the Massachusetts Bay Company, which made the patentees and their associates a corporation. The LEGAL HISTORY OF THE COLONIES. 199 Charter provided that the affairs of the company should be managed by a governor, deputy governor and eighteen assistants or magistrates, the latter of whom were to hold monthly courts. A general Court of Assembly of all the freemen and stockholders was to be held monthly for purposes of legislation. No royal veto power over the acts of this body was reserved. The colonists were to have the rights of Englishmen and nothing was said about religion. The colony was at first governed from England but the charter was very soon removed to Massachusetts. For a few years both the Plymouth and Massa- chusetts Bay colonies were practically self governing. Finally, however, Charles I began to interfere with the government of the colonies, and demanded the sur- render of their charters. The result of the Civil War saved the liberties of the colonies for a tune, but after the restoration of the Stuarts the colonies were subject to much interference and persecution, which culminated in 1684 when the King obtained a judg- ment in the high Court of Chancery in England against the Governor and Company of Massachusetts, declaring the charter of the Company forfeited. The period of the rule of Sir Edmund Andros as Governor from 1686-1689 was the most tyrannical epoch in all New England's history. After the expulsion of James II, the old charters were for a time re-established, but in 1692 were finally superseded by a new charter granted to Massachusetts. By the terms of this charter the colony of Plymouth, the provinces of Maine and Nova Scotia as far north as the St. Lawrence River, and all the country between them were added to the old provinces of Massachusetts, as were also the Elizabeth Islands and the islands of Nantucket and Martha's Vineyard. The 200 LEGAL HISTORY. governor, lieutenant-governor and colonial secretary were appointed by the crown. The charter gave the governor the power to convene and dissolve the General Court, and a veto power over of all its acts. The coun- cillors first appointed by the crown were afterwards to be annually elected by the House of Representatives and the existing council; but of the twenty-eight thus chosen the governor might reject thirteen. The advice and consent of the council were necessary to all appointments and official acts. Under this charter the theocracy which had ruled Massachusetts with vigor lost nearly all its power. Toleration was expressly secured to all religious sects, excepting the Roman Catholic. The right of suffrage, limited by the old government to church members and a few persons admitted as freemen on a minister's certificate, was now bestowed on all inhabitants possessing a freehold of the annual value of $6 . 66, or personal property to the amount of $133.33. After the receipt of the new charter the General Court passed an act which was a declaration of the rights of the colony. Among the general privileges which it asserted, it declared that "No aid, tax, tollage, assess- ment, custom, loan, benevolence, or imposition what- soever, shall be laid, assessed, imposed or levied on any of their Majesties' subjects, on their estates, on any picture whatsoever, but by the act and consent of the governor and people assembled in the General Council." Massachusetts was always the leader of the Puritan colonies. Her political and religious tendencies were those of the English Independents of the seventeenth century. The powers of local government were vested in the town meetings of the various towns, which were perhaps the most democratic political assemblies ever in LEGAL HISTORY OF THE COLONIES. 201 existence. The counties were of minor importance, being little more than judicial districts. One political prin- ciple firmly established in this colony was that of the necessity for short terms for public officials and frequent elections. SECTION 84. CONNECTICUT. Connecticut, which ranked next to Massachusetts among the New England and Puritan colonies, was the product of the union of two smaller colonies, the New Haven colony and the original Connecticut colony. The former colony was settled under a grant given by Charles I to Viscount Say and Seal, Robert, Lord Brook, and others. The first settlement in the latter colony was made at Hartford in 1635. In 1639 a con- stitution for the government of the colony was adopted by a general vote of the citizens. This constitution served as a basis for the charter afterwards obtained from the King. Connecticut sided with the Parliament during the civil wars and enjoyed practically self- government during the period of the Commonwealth. Upon the restoration, however, the colony had fears regarding their liberties and therefore the General Assembly made a formal acknowledgment of their allegiance which they sent to the King, together with a petition for a charter, by Governor Winthrop. Although at first coldly received, Winthrop finally succeeded in obtaining a charter from the King, which annexed to Connecticut the territories of the colony of New Haven and part of Rhode Island. It is probable that the King was induced to take this step less by any kindly feelings towards Connecticut, than by a desire to raise up a strong rival to Massachusetts in New England, and to punish New Haven, which had given shelter to 202 LEGAL HISTORY. three of the judges who had tried and condemned his father. The operation of the charter was temporarily suspended during the reign of James II but was put in operation once more upon the accession of William and Mary. The provisions of this charter were so liberal that the charter was continued in use as a State con- stitution for many years after the Independence of the United States had been secured. The provision in the charter annexing a portion of Rhode Island led to a boundary dispute with that colony which lasted sixty years, while a provision in the charter that its territory should extend westward to the Pacific nearly involved Pennsylvania and Connecticut in a civil war near the close of the eighteenth century. Connecticut very closely resembled Massachusetts in the character of her people, her political and religious principles and her form of local government. SECTION 85. RHODE ISLAND. Rhode Island was originally settled by political and religious exiles from the neighboring colonies. The earliest government was one created by the settlers themselves, each settler being required to sign an agreement to give active or passive obedience to all ordinances that should be adopted by a majority vote of the inhabitants. In 1644, Roger Williams secured a charter from England which united the various scattered settlements into one province under the title of Rhode Island and Providence Plantations. This charter was confirmed by Cromwell, and a new charter was granted by Charles II in 1663. Rhode Island shared with Connecticut the honor and privilege of having the most popular form of government among LEGAL HISTORY OF THE COLONIES. 203 the colonies. The people elected all their officials and were practically a small republic, with hardly more than a nominal allegiance to England. The charter granted by Charles II continued to be used as the State Constitution nearly to the middle of the nine- teenth century. The great freedom as to political and religious ideas allowed in Rhode Island attracted the discontented and oppressed from all the neighboring colonies. Rhode Island did much to set a good ex- ample of toleration to her sister colonies, but in the seventeenth century such a position as that taken by Rhode Island was so far in advance of the age as to render this colony an object of distrust to her neigh- bors. For this reason Rhode Island was excluded from the New England Confederacy. (1643-1686.) Although she had no serious grievances, of her own, Rhode Island was one of the first of the colonies in the contest against England, but the prevalent spirit of unrest and agitation abroad in the colony, made her the most unmanageable of all the colonies in the at- tempt to establish a true national government. SECTION 86. NEW HAMPSHIRE. New Hampshire was the last settled and the weak- est of the original New England colonies. For a long time New Hampshire was merely a county (Norfolk) of Massachusetts. In 1680 a separation took place and New Hampshire became a royal province, with the ordinary form of government for this class of colonies. The character of the settlers of this colony, their political and religious ideas, and their system of private laws and of local self-government, closely re- sembled the more southerly Puritan colonies of Massa- chusetts and Connecticut. 204 LEGAL HISTORY. SECTION 87. NEW YORK. New York differed greatly from the other original colonies, in that her original colonies and settlers were not English but Dutch. Although Holland was at the time a certain kind of Republic, the colonial govern- ment and laws of her American colony were very illiberal, being, in the main, based upon the old prin- ciples and methods of the feudal system. In 1664, New Amsterdam (as the colony had been previously called) passed into the control of the English. For a while New York was a proprietary colony under the rule of James, Duke of York, (afterwards King James II,) but was soon made a royal province. The Dutch element in the population of the colony was always large, with the result that this colony was often out of sympathy with her sister colonies. The political history of the colony was less stormy than that of most of her neighbors. The Tory sentiment was perhaps stronger there than in any other colony, and New York played a very important part in the Revolution- ary War, while her narrow and selfish spirit, in the period which followed the peace with England, did much to embarrass the central government and to drive the American Union more than once close to the rocks of anarchy or civil war. The colonial laws and government of New York possessed no features of particular interest or importance, closely resembling those of the other royal provinces. SECTION 88. NEW JERSEY. The possession of New Jersey was originally con- tested for by the English, Dutch and Swedes. For a while New Jersey was annexed to New Amsterdam, and later passed with this colony to England, in 1664. LEGAL HISTORY OF THE COLONIES. 205 The government of New Jersey under English rule underwent many rapid changes. The territory was part of the grant to James, Duke of York, and was by him granted to two of his favorites, Lord Berkeley and Sir George Carteret. These proprietors established a lib- eral form of government and offered liberal terms to purchasers of land and many settlers were soon at- tracted to the province. After a few years a great deal of trouble began to be experienced in connection with land titles and quit-rents, which resulted in continued agitation, and on one occasion in open rebellion. In 1676 Lord Berkeley sold his undivided one-half interest in the colony to William Penn and a number of other Quakers. New Jersey was shortly afterward divided into two colonies, the Quakers taking West Jersey and Sir George Carteret receiving East Jersey. In 1682, East Jersey was likewise purchased by the Quakers. During a portion of the reign of James II, New Jersey was united with all the colonies lying north of her, under the rule of Governor Andros, but upon the acces- sion of William and Mary was restored to her Quaker Proprietors. In 1702, after the Quakers had secured possession of Pennsylvania and Delaware, New Jersey was surrendered to the King. From 1702 to 1739, New Jersey was annexed to New York, but in the latter year was made a separate royal province with the form of government usual in such colonies. The population of New Jersey was of very diverse character. The Tory sentiment was very strong in this colony during the revolution period. SECTION 89. PENNSYLVANIA AND DELAWARE. The colonial histories of Pennsylvania and Dela- ware were throughout so closely connected as to 206 LEGAL HISTORY. necessitate their treatment in connection with each other. Delaware was the first of these two colonies to be the seat of white settlements. This colony, like New Jersey, was first settled by the Swedes, who were conquered by the Dutch, and with the conquest of the latter in 1664, Delaware passed under English rule. The territory included within the area of the present State of Delaware was for a while claimed by Mary- land ; that colony, however, failed in its efforts to secure possession of this region, which remained under the rule of the Duke of York until 1682, when it was granted to William Penn, who desired an outlet to the sea for his larger colony of Pennsylvania. William Penn had been one of the Quaker pur- chasers of New Jersey, and in 1681 secured a grant from Charles I, of a tract of 45,000 square miles, to be held in fealty on an annual payment of two beaver skins. The consideration for the grant was the can- cellation of a debt of about 16,000 which had been due from the crown to the father of William Penn. Both Pennsylvania and Delaware were throughout the whole colonial period charter colonies. The early government established by Penn was extremely just and liberal, and emigration to these colonies was rapid. Pennsylvania has the honor of being the first Christian community in the world which allowed com- plete religious freedom. Delaware was first governed as a part of Pennsyl- vania, and went by the name of 'The Territories" or "Three Lower Counties on the Delaware." Later Pennsylvania and Delaware were given separate legis- latures, but still continued under the rule of a single governor. The joint governor was appointed by the Proprietors, but the members of the legislature were LEGAL HISTORY OF THE COLONIES. 207 elected by the people. The governors appointed by the successors of William Penn were so unpopular that after the Declaration of Independence the State Constitutions adopted in these two states provided for an executive council instead of a single executive head. Pennsylvania had only a single branch in her legislative body until 1790. A peculiar feature of the government of Pennsylvania was her council of censors, resembling somewhat in their duties the old Roman officials bearing that title, who assembled once in seven years to report as to whether the State has been well governed during the period since the last meeting of this council. It was this peculiar institution which prevented the threatened civil war between Pennsyl- vania and Connecticut in 1784. SECTION 90. MARYLAND. Maryland was settled under a grant to Cecil, Lord Baltimore. The colony was primarily intended as a place of refuge for Roman Catholics, but religious freedom was secured to every Christian denomination except the Unitarians. A fuller degree of self-govern- ment also was granted by this first charter than was given in any other colony. An insurrection on the part of the Puritans, who had settled in the colony, temporarily deprived Lord Baltimore of his power, which was, however, restored to him by Cromwell. Civil war between Catholics and Puritans disturbed the peace of the colony until 1701, when Maryland was made a royal province. In 1716 the proprietary rights of the descendents of Lord Baltimore were re- stored to them and Maryland remained a proprietary colony during the remainder of the colonial period. Maryland was among the most conservative of the colonies on the question of independence. 208 LEGAL HISTORY. SECTION 91. NORTH AND SOUTH CAROLINA. Although there had been a number of small and ineffectual attempts at colonization prior to the tune, nothing of importance was done towards the settle- ment of the Carolinas until 1663, when Charles II granted the territory to eight of his courtiers. The grantees were made absolute lords and proprietors of the country, the King reserving to himself and his successors sovereign dominion. They were empowered to enact and publish laws, with the advice and consent of the freemen, to erect courts and judicature, and appoint civil judges, magistrates and other officers; to erect forts, castles, cities and towns; to make war, and in cases of necessity to exercise martial law; to construct harbors, make ports, and enjoy custodies and subsidies on goods loaded and unloaded, by con- sent of the freemen. The charter granted freedom in religious worship. The philosopher, John Locke, and Ashley Cooper, Earl of Shaftsbury, in 1669, prepared a scheme of government for the colony, based upon feudal principles. The proposed system was un- suited for existing conditions, being, in fact, almost grotesque in many of its provisions, and was so un- popular with the settlers that no real attempt was ever made to put it into operation. The settlers of Caro- lina were of very diverse origins, including colonists sent directly from England by the Proprietors, emi- grants from Virginia and the West Indies, Puritans from New England, French Huguenots, Jacobins, and Scotch Presbyterians. Clashes among the various elements were frequent and made Carolina one of the most turbulent of the colonies. After being several tunes divided and reunited, Carolina in 1729 was per- manently divided into North Carolina and South LEGAL HISTORY OF THE COLONIES. 209 Carolina, each of which was made a royal province. There was a strong Tory element in the Caroh'nas, but the Whigs were in the majority and took a vigorous part in the Revolutionary War. SECTION 92. GEORGIA. Georgia, the last of the thirteen original colonies, was settled in 1732, under a grant made to James Oglethorpe. The purpose of the colony was to furnish a refuge to debtors, prisoners, and paupers. Georgia became a royal province in 1752. Her first legislative assembly was created in 1755. Georgia played a very minor part both in colonial history and in the Revolu- tionary War on account of her position and of her small population. SECTION 93. THE REVOLUTIONARY WAR. The course of events leading to the Revolutionary War began almost at the outset of the reign of George III, the character and aims of which ruler were briefly referred to at the close of Chapter VI. To the attempt of this king to rule in England, instead of merely to reign, as his two immediate predecessors had been content to do, can be traced the breaking out of the great Revolution. The attitude of George III towards the colonies was only one aspect of his larger policy towards the English Empire as a whole. The spirit of independence which he encountered in the colonies was the same spirit of independence which he sought to curb at home. The contest with the colonies was apparently deliberately sought by the reactionary king as a preliminary test of strength before the opening of the home contest. The American minute men were fighting not only their own battle, but also that of their brethren across the water; their defeat would Vol. I. 14. 210 LEGAL HISTORY. have transferred the battle to England. The Revolu- tionary War, in its broadest significance, was not one so much between America and England, as one in which the radical forces in both countries were arrayed against the conservative elements in each. William Pitt openly rejoiced that America had resisted, while Fox, in his speeches in the House of Commons habitually re- ferred to Washington's forces as "our army," and even adopted the famous blue and buff of the con- tinental army as the colors of the Whig party. With the mass of the English people the war was so unpopu- lar that the troops for the war mainly had to be hired in Germany. On the other hand, probably at least one-third of the whole population of the colonies were Tories in their sympathies, and this third included the majority (the great majority outside of Massachusetts) of the wealthy and educated classes. If the English House of Commons had fairly represented the English people, the war would probably never have occurred; but it did not fairly represent them. In the words of the younger William Pitt: "The House is not the representative of the people of Great Britain. It is the representative of nominal boroughs, of ruined and exterminated towns, of noble families, of wealthy individuals, of foreign potentates." In a population of 8,000,000 of English people, only 160,000 had the right of suffrage. The details of the struggle are immaterial. The contest was originally one over taxation, but the re- sistance was not on account of money but of principle. The American colonists were demanding the ap- plication in the New World of that old Anglo-Saxon principle, proclaimed by the Magna Charta and the Bill of Rights, that taxation without representation was illegal. LEGAL HISTORY OF THE COLONIES. 211 The pressure from England began to bring the colonies into closer relations with each other and to lay the foundations for an united country. The earlier attempts at the consolidation of the colonies had proved unsuccessful. Those instituted by the King, such as the union of the northern colonies under Andros, had met with resistance from the people; while such meetings as the Albany Congress had been viewed with suspicion by the English government. The passage of the Stamp Act led to the meeting of the "Stamp Act Congress," in October, 1765. Nine colonies were represented, and advanced ground was taken in support of the rights of the colonies. Laying aside arguments based on chartered privileges, the Congress took their stand on the broad doctrines of inalienable rights and privileges, asserting their right to trials by jury in all cases, and to freedom from all taxation not voted by a body wherein they were represented. Nine years later the first Continental Congress met at Philadelphia. All the colonies, aroused at the calamity overhanging one of their number, were represented. The English government, enraged at the Boston Tea Party, had passed through Parliament a series of acts designed to crush the most daring of the colonies and to intimidate the others. The charter of Massachusetts was annulled, her town meetings destroyed, and the appointment of all officials was vested in the crown. Boston, as the center of the disturbance, was particularly punished; she was no longer to be either the Capitol of the colony or a port of entry, and provision was made for quartering British troops upon her citizens. The trial of any British soldier or official accused of murder was to be transferred to England. 212 LEGAL HISTORY. This first Continental Congress was a mere pro- visional government. There was no thought, except in the minds of advanced thinkers like Samuel Adams, of political separation from England. A redress of grievances was demanded, not a severance of existing political ties. The second Continental Congress met the following year under more stormy auspices; by this time the war had begun, the Battle of Lexington having already been fought. The day for compro- mises had passed, and the contest could only end by the unconditional surrender of the one side or the other. It was, however, not until after the evacua- tion of Boston in the ensuing year, that the question of independence was taken up. Within a few days after the passage of the Declaration of Independence, 2 a committee was appointed to draft a framework of government for the United States. The Articles of Confederation 3 were finally passed by Congress on October 15, 1777, and submitted to the states. Eleven of the states ratified the Articles of Confederation before the close of the year 1778. Dela- ware delayed until 1779, and Maryland until 1781. The delay on the part of Maryland was for the purpose of compelling the States of Massachusetts, Connecticut, New York and Virginia to surrender their claims to the northwest territory. Although not fully ratified until 1781, the Articles of Confederation served as a basis for the form of government after the year 1777. SECTION 94. THE ARTICLES OF CONFEDERATION. The Articles of Confederation contained within themselves the germs of many of those evils which were to agitate the country for the next decade. The 1 See Appendex F. * See Appendex G. LEGAL HISTORY OF THE COLONIES. 213 nature of this system of government can be shown by the second article, which provided that: "Each State shall retain its sovereignty, freedom, and independence, and every power, jurisdiction, and right, that is not by this confederation expressly delegated to the United States in Congress assembled." The next article pro- vided that, ' The States severally enter into a firm league of friendship with each other for their common defense, the security of their liberties, and their general and mutual welfare." The United States was thus in its inception, not a country but a league of sovereign states. The very word adopted as the name of their legislative body was one which had heretofore only been applied to the assemblies of diplomatic representatives. If the new Congress of the United States was in some respects something more than a congress of ambassa- dors, it was, nevertheless, in its powers, among the weakest of legislative bodies. The power of taxation was entirely lacking to it. Congress could indeed estimate the sum necessary for the expense of the government, and make requisitions on the states for their respective quotas, but there its authority ceased. There were no means by which the collections of such quotas could be enforced and the states soon became hopelessly in arrears. The domestic relations of the governments of the United States, under the Articles of Confederation, were with the States. The people had no part in the general government, and could not be acted upon by it, except indirectly. The resem- blance between the Congress and a diplomatic body is further shown by the provisions allowing each State to determine the number of its representatives, between the limits of two and seven, and to recall them at pleasure. Each State paid its own members. The 214 LEGAL HISTORY. number of representatives from a State did not affect its voting power, as each State had one vote. The votes of nine states were required in order to pass a motion to engage in war, grant letters of marque and reprisal, enter into treaties or alliances, coin money, or regulate the value thereof, ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, emit bills, borrow money on the credit of the United States, appropriate money, agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, or to appoint a Commander-in-Chief of the army or navy. As it was seldom that all the states were represented in Congress at the same tune, the restrictions imposed by this clause, upon free action by Congress, was even greater than appears upon its face. As if to emphasize and perpetuate the evils contained in this instrument, the last article required the unanimous consent of all the thirteen states for the adoption of any amendments. SECTION 95. JUDICIAL POWERS OF THE UNITED STATES GOVERNMENT UNDER THE ARTICLES OF CONFEDERATION. The Articles of Confederation made no provision for the creation of any executive department, and the judicial powers which it conferred upon the new Federal government were of the most restricted char- acter. The ninth article gave Congress the power of ' 'appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally, appeals in all cases of captures, provided that no member of Con- gress shall be appointed a judge of any of the said courts." LEGAL HISTORY OF THE COLONIES. 215 Under this authority a permanent court of appeal in prize cases of three judges was created in 1780. This court lacked the independence of the Federal courts under the Constitution, and in several instances action was taken by Congress relative to pending cases. No permanent court was ever established for the trial of piracies and felonies on the high seas. By an act of Congress 4 it was provided that the justices of the Supreme or Superior Court of judicature, and the judge of the Court of Admiralty of the several and respective states, or any two or more of them, were designated as being constituted and appointed judges for hearing and trying such offenders. Provision was also made in the Articles of Con- federation for the settlement of controversies between different states or between persons claiming land under grants from different states. The second and third clauses of the ninth article were as follows: "The United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: Whenever the legislative or executive au- thority or lawful agent of any State in controversy with another shall present a petition to Congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners 4 Journals of Congress, Volume VII, p. 65. 216 LEGAL HISTORY. or judges to constitute a court for hearing and de- termining the matter in question; but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the peti- tioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot, and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination; and if either party shall neglect to attend at the day appointed, without show- ing reasons which Congress shall judge sufficient, or, being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the Secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive ; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall, nevertheless, proceed to pronounce sentence or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned: provided that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the Supreme or Superior Courts of the State where the cause shall be tried, "well and LEGAL HISTORY OF THE COLONIES. 217 truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward," provided that no State shall be deprived of territory for the benefit of the United States. "All controversies concerning the private right to soil, claimed under different grants of two or more states, whose jurisdictions as they may respect such lands, and the states which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same man- ner as is before prescribed for deciding disputes re- specting territorial jurisdiction between different states." There is but one instance of a trial and judgment under the auspices of Congress of a controversy be- tween states. The case in question was the famous dispute between Pennsylvania and Connecticut over the Wyoming Valley. 5 This controversy, which arose out of the overlapping of the early grants to Pennsyl- vania and Connecticut, was decided in 1782 in favor of Pennsylvania. Several other disputes between different states were referred to Congress and reached various stages of development, but were all finally settled by agreement between the contending states. 8 ' For an account of the case see Carson's "History of the Su- preme Court of the United States," Volume I, pp. 67-73. Some of these controversies were as follows: (a) Between Penn- sylvania and Virginia over the Mason and Dixon's line, in 1779. (b) Between Virginia and New Jersey over a tract of land in Ohio, in 1784. (c) Between Massachusetts and New York in 1784, over a land dispute. (d) Between South Carolina and Georgia in 1786 over the jurisdiction over the upper waters of the Savannah River. (e) Several disputes relative to the sovereignty over the territory of Vermont. 218 LEGAL HISTORY. SECTION 96. CAUSES LEADING UP TO THE CON- STITUTIONAL CONVENTION. It is not intended to treat of the general history and condition of the country while under the Articles of Confederation. 7 The government proved itself en- tirely inadequate for the existing circumstances. A government without the power of taxation and with- out the power to enforce its laws against any individual citizen, a government which could only treat condi- tionally with foreign powers, and whose foreign policy could be thwarted by that of any State, could com- mand neither obedience at home nor respect abroad. An attempt was made to remedy the lack of power of Congress to raise a revenue by an amendment to the Articles of Confederation, allowing Congress, under strict limitations, the power to lay import duties. Such amendment was twice defeated by the action of a single State. The chain of events which culminated in the Constitutional Convention of 1787 began with a con- ference between the Commissioners of the States of Virginia and Maryland, held at Washington's house at Mount Vernon, early in 1785, to discuss the naviga- tion of the Potomac. During this meeting, Washington took occasion to suggest that Pennsylvania should be invited to meet with the two states already represented at a future meeting, and that also while these states were together, it might be well to discuss other matters of common interest to the states, such as a uniform system of duties and other commercial relations. These sugges- tions were acted upon by the Maryland Legislature. For the general history of this period read Fiske's "The Critical Period of American History." LEGAL HISTORY OF THE COLONIES. 219 This State, in sending its ratification of the compact as to the jurisdiction over the Potomac to Virginia, accompanied it with the suggestion that if Pennsyl- vania was to be consulted on this matter, then Dela- ware should also be consulted, and that while these states were together, they might as well also consult together regarding a uniform system of duties, and then going still further, the Maryland Legislature suggested that instead of having a conference of three or four states, they have one of thirteen, and invite each State to send delegates to a meeting for a mere informal discussion of the questions agitating the United States at that tune. Upon the receipt of this communication from Maryland, Virginia issued a general invitation to the other states to send commis- sioners to a meeting to be held at Annapolis on the first Monday of September, 1786. The Annapolis gathering proved to be a failure; only five states being represented Virginia, Delaware, Pennsylvania, New Jersey and New York. 8 The states represented were too few to take any action on the question of governmental reform. Rather than adjourn, however, without doing anything, they adopted an address prepared by Alexander Hamilton which they sent to the several states. In this address the states were urged to assemble at Philadelphia on the second Monday of the following May, 1787, "to devise such further provisions as shall appear to then be necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union, and to report to Congress such an act as when agreed to by them, and confirmed by the legislatures of every 8 Massachusetts, New Hampshire, None had been appointed by Rhode Island and North Caro- Connecticut, Maryland, South lina had each appointed com- Carolina or Georgia, missioners who did not attend. 220 LEGAL HISTORY. State, would effectually provide for the same." An effort was made in October, to secure the endorse- ment of Congress for this convention, but without avail. The evils of the Articles of Confederation, however, were manifested during the winter of 1786- 87, as never before, and early in 1787, Congress receded from its position and issued a call for a convention, identical as to the tune and place of its assembling with the one called by the Annapolis Convention. CHAPTER X. AMERICAN CONSTITUTIONAL HISTORY. SECTION 97. THE CONSTITUTIONAL CONVENTION. The second Monday of May, 1787, fell upon the 14th. On that day only a few delegates had assembled, and seven states were not represented until May 25th, when the first meeting of the Federal Constitutional Convention was held. 1 A correct appreciation and understanding of the United States Constitution requires a knowledge of the history of the Constitutional Convention. It was with both vague and widely differing notions as to what should be done that the members of the con- vention assembled together on this 25th day of May, 1787. There was, however, one characteristic which seems to have belonged to all this remarkable body of men. They seem, almost without exception, to have been men of a practical, instead of a speculative mind; men imbued with all the conservatism of the Anglo-Saxon race. There is little in the Constitution which originated in the minds of any member of this convention. What they did was to select from the political institutions of the past those features best suited, in their opinion, for our country, and then to mould or modify them to meet existing conditions. 1 Massachusetts, New York, New gates from Connecticut and Jersey. Pennsylvania. Dela- Maryland appeared on May ware, Virginia, North Carolina, 28th. New Hampshire was first South Carolina, and Georgia represented on July 23, while were represented at the opening Rhode Island took no part in session on May 25th. Dele- the Convention. 221 222 LEGAL HISTORY. What, then, were the sources from which the framers of the Federal Constitution drew their material? First and foremost stand the constitutions of the differ- ent states. It has been said that every provision of the Constitution of the United States which has worked well, was suggested by some provision in the Constitu- tion of some State, and that every provision which was not so suggested has worked poorly. Such a statement is too broad to be wholly true, but it serves to illustrate the importance of this source. For example, the compromise which saved the Constitu- tion when the convention was about to go to pieces on the question of representation in Congress, was suggested by a provision of the Connecticut Constitu- tion. (The various provisions of the United States Constitution copied from the various State constitu- tions will be shown when the Constitution is treated in detail in the next volume.) Next in importance among the sources from which the United States Con- stitution was drawn, stands the English system of government. It was the English system of govern- ment, however, as laid down by Blackstone, and as understood generally by Americans at that time, which served as a guide to the Constitution makers, rather than the English government as it really ex- isted. Like Blackstone, the members of the Con- stitutional Convention were all the time looking at the letter of the English law, rather than its spirit. They were acquainted with the laws of the English Constitution, but not with its conventions. They saw the three branches of the legislative power without appreciating the supremacy of the House of Commons. To them the executive power appeared vested in the King rather than in the ministry. The closest copy- AMERICAN CONSTITUTIONAL HISTORY. 223 ing from English law appears in the Bill of Rights where various provisions of the Magna Charta or Bill of Rights appear embodied almost verbatim in the Constitution, or in the first ten amendments. It should be added, that the State Constitutions were largely based on English law, and thus, much that was copied from them came indirectly from England, although many of the most valuable provisions sug- gested by the State Constitutions have nothing re- sembling them in the English law or Constitution. A recent writer 2 has made an effort to make out a Dutch origin for American institutions. The free schools, the written ballot, and some features of the township system, may be largely traced to Dutch sources, but we find little trace of Dutch influence hi the Constitution itself. The Dutch republic was, however, of service to the framers of our Constitution, as furnishing a striking example of the evils attending an undue exaltation of the power of local governments. The Articles of Confederation were also of benefit as showing what to avoid, rather than as presenting much worthy of being followed. Certain provisions of these articles appear, however, in a slightly modified form, in the Constitution, noticeably the clause relative to the reciprocal rights of the citizens of the several states. The period during which the convention met was one of a great revival of classical study. The minds of the people were filled with admiration of the character and institutions of the ancient Romans. Much of this sentiment is to be found in the speeches in the Constitutional Convention, but little evidence of Roman influence is to be found in the text of the Constitution except in the name of the upper branch Mr. Douglas Campbell, in "Puritan in Holland, England, and America." 224 LEGAL HISTORY. of the legislative body, and this name was already in use in eleven of the states. Three great causes of dissension early manifested themselves among the members of the Convention. The interests of the large and of the small states came at once into conflict, while the members of the con- vention became arrayed either as supporters or oppo- nents of a strong central government, and as the friends or enemies of slavery. The positions of the different parties on the first two questions were set forth in the " Virginia " and "New Jersey" plans, while the various conflicting interests were brought to a certain degree of harmony by the three great compromises of the Constitution. It is around the Virginia 3 and New Jersey 4 plans and these three compromises that the history of the Constitutional Convention centers. SECTION 98. THE VIRGINIA AND NEW JERSEY PLANS. The period from May 25th to May 29th was taken up with the organization of the convention; and it is the introduction of the Virginia plan, on the latter date, that marks the commencement of the real work of the convention. From May 29th to June 14th the convention was engaged in the consideration of the Virginia plan, in the committee of the whole. As the committee was about to report on the last named date, certain members from some of the smaller states asked for delay in order to be able to present a plan of their own, based on principles different from those forming the basis of the Virginia plan. This delay being granted, the New Jersey plan was presented on June 15th. The two plans were then debated together until 3 See Madison's Journal of the * See Madison's Journal of the Federal Convention, under date Federal Convention, under date of May 29, or Appendix H. of June 15, or Appendix I. AMERICAN CONSTITUTIONAL HISTORY. 225 June 19th, when the committee of the whole voted to report to the convention the draft of resolutions as prepared before the introduction of the New Jersey plan. For a little over a month, the convention de- bated upon this report. Upon July 26th, the report as it then stood, after numerous amendments, was referred to a committee of detail, who, on August 6th, reported to the convention the first draft of the Con- stitution. After six weeks more of amending and moulding the Constitution into shape, the convention completed its labors, and, on September 17, 1787, submitted its report to Congress and the states. The Virginia plan, which, as modified by the three great compromises, served, in the main, as a basis of the Constitution, was drawn up by the members from the larger states, especially those from Virginia, and was introduced into the Convention by Mr. Randolph of that State. It was the plan of the larger states and of the friends of a strong central government. The six states which, in the main, supported its essential provisions were Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia. The system of government for the United States, as laid down in the fifteen resolutions which composed the Virginia plan, was a radical departure from that contained in the Articles of Confederation and, to many, a striking innovation. The Virginia plan pro- vided for a national instead of a confederated govern- ment. To use the expressive German terms, terms for which there are no good .equivalents in the English language, it was to be a Statenbund instead of a Bunde- stadt. This characteristic of the plan was emphasized by the committee of the whole, who, in place of the first resolutions in the original plan, "Resolved, that Vol. I. 15. 226 LEGAL HISTORY. the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, 'common defense, security of liberty, and general welfare, ' ;I ' substituted the more uncompromising declaration, ' 'Resolved, that it is the opinion of this committee, that a national govern- ment ought to be established, consisting of a supreme legislative, executive, and judiciary. " The Virginia plan provided for a double legislative body, with proportional representation in each branch. The members of the lower House were to be elected by the people, and those of the upper House by the lower House, out of a proper number of persons nominated by the individual legislatures. This na- tional legislature was to have the powers vested in Congress, by the confederation, and in addition, the power to legislate in all cases where the separate states were incompetent, or in which the harmony of the United States was in danger of being interrupted by the exercise of individual legislation. It was also allowed to negative all laws passed, by the several states contravening, in its opinion, the articles of union, or any treaty subsisting under the authority of the Union, and to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof. There was to be a national executive, to be chosen by the national legislature, but the resolution was silent on the question as to whether such executive should consist of a single person or a commission. To the executive and a "convenient number of the na- tional judiciary" was given a qualified veto power. The national judiciary was to consist of one or more supreme tribunals, and of inferior tribunals, the judges AMERICAN CONSTITUTIONAL HISTORY. 227 of which were to be chosen by the national legislature and to hold office during good behavior. The juris- diction of these courts was to extend to cases of piracies and felonies on the high seas; captures from an enemy; cases in which foreigners or citizens of other states, applying to such jurisdiction, might be interested; cases respecting the collection of the national revenue; impeachments of any national office; and questions involving the national peace and harmony. Provision was made in the resolutions, for the admission of new states; for the guaranteeing to each State, by the United States, of a republican form of government; for the continuance of Congress until a given day after the reform of the articles of the Union should have been adopted, and for the completion of their obligations; for amending the articles of the Union without the consent of Congress; for binding the legislative, executive, and judiciary powers in the several states by oath, to support the articles of Union ; and for the submitting of the report of the convention to special conventions in the several states. The New Jersey plan was the plan of the smaller states, and of the extreme advocates of states' rights. 5 "This plan has been concerted members opposed to a national among the Deputation, or government, from the different members thereof, from Connec- motives, began now to produce ticut, New York, New Jersey, serious anxiety for the result Delaware, and perhaps Mr. of the convention. Mr. Dick- Martin, from Maryland, who ison said to Mr. Madison, made with them a common ' You see the consequences of course though on different prin- pushing things too far. Some ciples. Connecticut and New of the members from the small York were against a de- states wish for two branches parture from the principle of in the General Legislature, and the Confederation, wishing are friends to a National Go\- rather to add a few more powers ernment ; but we would sooner to Congress than to substitute submit to a foreign power, than a National Government. The submit to be deprived in both States of New Jersey and Dela- branches of the legislature, of ware were opposed to a Nation- an equality of suffrage, and al Government, because its thereby be thrown under the patrons considered a propor- domination of the larger tional representation of the States.' ' Foot-note to Madi- States as the basis of it. The son's Journal of the Federal eagerness displayed by the Convention. 228 LEGAL HISTORY. It appears to have been drawn up mainly by the delegates from New Jersey and Delaware, and was introduced on June 15th, by Mr. Patterson of New Jersey. The New Jersey plan proposed merely to amend the Articles of Confederation, retaining the confederation system and the equal representation of the states in Congress. Its greatest advance on the Articles of Confederation consisted in giving to Con- gress the power to raise a revenue, ' 'By levying a duty or duties on all goods or merchandise of foreign growth or manufacture, imported into any part of the United States; by stamps on paper, vellum or parchment; and by a postage on all letters passing through the general post-office." The first resolution read: "Resolved, that the Articles of Confederation ought to be so re- vised, corrected and enlarged as to render the Federate Constitution adequate to the exigencies of government, and the preservation of the Union." The plan pro- vided for an executive council, and a Federal judiciary to consist of one supreme tribunal, which was to have original jurisdiction over all impeachments of Federal officers; and appellate jurisdiction over the State courts in all cases touching the right of ambassadors; in all cases of captures from an enemy; in all cases of piracies and felonies and on the high seas; in all cases in which foreigners might be interested; in the con- struction of any treaty or treaties; and in all cases relative to the regulation of trade or the collection of the Federal revenue. The sixth resolution contained the greatest sur- render to the principles of a strong, central govern- ment. It was, however, a resolution containing within itself the seeds of a dissolution of the Union and of civil war. The resolution, in full, was as follows: AMERICAN CONSTITUTIONAL HISTORY. 229 "Resolved, that all acts of the United States in Con- gress made by virtue and in pursuance of the powers hereby, and by the Articles of Confederation, vested in them, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, so far as those acts or treaties shall relate to the said states or their citizens; and that the judiciary of the several states shall be bound thereby in their decisions, anything in the respective laws of the individual states to the contrary notwithstanding; and that if any State, or any body of men in any State, shall oppose or prevent the carry- ing into execution such acts or treaties, the Federal executive shall be authorized to call forth the power of the Confederate States, or so much thereof as may be necessary, to enforce and compel an obedience to such acts, or an observance of such treaties." The resolution appears as a confession on the part of the States' Rights Party, that the only alternative to the granting to the central government of the power to act directly on the individual citizens, was to grant them the power to make war on the states; a power which if exercised could hardly have failed to have torn the Union to pieces. With this alternative before them, the action of the convention cannot seem sur- prising. The test vote between the Virginia and New Jersey plans, as a whole, came on June 19th upon the motion that the committee of the whole report the resolutions to the House, as they stood before the introduction of the New Jersey plan. The vote on this motion stood seven states to three in favor of the Virginia plan. 6 8 Massachusetts, Connecticut, New Jersey and Delaware; with Pennsylvania, Virginia, North the vote of Maryland equally Carolina, South Carolina, and divided. Georgia against New York, 230 LEGAL HISTORY. SECTION 99. THE THREE GREAT COMPROMISES IN THE CONSTITUTIONAL CONVENTION. The history of the adoption of the various parts of the Constitution in their existing form will be treated in connection with the discussion of the sub- ject of Constitutional Law. A brief statement, how- ever, of the three great compromises of the Constitu- tional Convention finds a proper place in this chapter. First in importance stands the so-called Connecticut Compromise, which succeeded in bridging over the seemingly impassable chasm between the Virginia and the New Jersey plans. For this compromise, as for so much else, the Constitutional Convention was indebted to a provision in one of the State constitu- tions. The Constitution of Connecticut, while pro- viding for senatorial districts arranged according to population, divided the members of the lower House equally among the different existing towns. From the beginning of the convention, Oliver Ellsworth and Roger Sherman of Connecticut seemed to have con- sidered this plan of equal representation in one house, and proportional representation in the other, as a proper basis of compromise between the large and the small states. This proposition was first suggested in the convention by Mr. Sherman on June 11, 1787. On the same day the vote of Connecticut was cast in favor of proportional representation in the lower House, and later in the day in favor of equal repre- sentation in the Senate. The six states, however, supporting the Virginia plan, still maintained their unbroken ranks, and the vote was in favor of propor- tional representation in both houses. On June 19th, Connecticut was found voting for the Virginia plan as a whole, as against the New Jersey plan. The AMERICAN CONSTITUTIONAL HISTORY. 231 Connecticut delegates, however, were still far from having abandoned their suggested compromise, and were prepared to offer it again at the earliest oppor- tunity. The apparently uncompromising attitude on the part of the larger states for a time threw Connecti- cut over entirely to the side of the smaller states, and on June 29th her vote was cast in the convention against proportional representation in the lower House. 7 On the second day of July Connecticut's oppor- tunity came at last. The growing discontent of the smaller states at length had begun to arouse the fear among some of the delegates from the "six" states, that they were perhaps going too far. When, on this day, Oliver Ellsworth moved for an equality of the states in the upper branch, Mr. Baldwin, of Georgia, divided the vote of that State by voting with the smaller states. The result was a tie and a deadlock. After a brief period of hesitancy, the convention referred this whole matter to a committee of one from each State, who three days later (July 5, 1787), re- ported as follows: "The committee to whom was referred the eighth resolution of the report of the committee of the whole House, and so much of the seventh as has not been decided on, submit the follow- ing report: "That the subsequent propositions be recom- mended to the convention on condition that both shall be generally adopted. "1. That the first branch of the legislature, each 7 The motion was to agree to the yeas to 4 nays; Massachusetts, clause as reported: "that the Pennsylvania, Virginia, North rule of suffrage in the first Carolina, South Carolina, and branch ought not to be accord- Georgia, against Connecticut, ing to that established by the New York, New Jersey, and Articles of Confederation. The Delaware; with the vote of vote on this question was 6 Maryland equally divided. 232 LEGAL HISTORY. of the states now in the Union shall be allowed one member for every 40,000 inhabitants, of the descrip- tion reported in the seventh resolution of the committee of the whole House; that each State not containing that number shall be allowed one member; that all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first branch of the legislature, and shall not be altered or amended by the second branch; and that no money shall be drawn from the public treasury but in pursuance of appro- priations to be originated in the first branch. "2. That in the second branch, each State shall have an equal vote." 8 After being debated for eleven days, and some- what amended, 9 this report, embodying the Connecti- cut compromise, was adopted by the narrow margin of five states to four Connecticut, New Jersey, Delaware, Maryland and North Carolina, against 8 "This report was founded on a motion in the Committee made by Doctor Franklin. It was barely acquiesced in by the members from the States op- posed to an equity of votes in the second branch, and was evidently considered by the members on the other side, as a gaining of their point. A motion was made by Mr. Sher- man (who acted in the place of Mr. Ellsworth who was kept away by indisposition), in the Committee, to the follow- ing effect, 'That each State should have an equal vote in the second branch; provided that no decision therein should prevail unless the majority of States concurring should also comprise a majority of the in- habitants of the United States.' This motion was not much de- liberated on nor approved, in the Committee. A similar pro- viso had been proposed, in the debates on the Articles of Con- federation, in 1777, to the Articles giving certain powers to "nine States." See Journals of Congress for 1777, "page 462." Foot-note to Scott's Edition of Madison's Journal of the Federal Convention. The resolution as passed was as follows: "Resolved, That in the original formation of the Legislature of the United States, the first branch thereof shall consist of sixty-five members, of which number New Hampshire shall send 3, Massa- chusetts, 8; Rhode Island, 1; Connecticut, 5; New York, 6; New Jersey, 4; Pennsylvania, 8; Delaware, 1; Maryland, 6; Vir- ginia, 10; North Carolina, 5; South Carolina, 5; Georgia, 3. But as the present situation of AMERICAN CONSTITUTIONAL HISTORY. 233 Pennsylvania, Virginia, South Carolina and Georgia. Massachusetts was divided, and all the delegates from New York were absent; New Hampshire and Rhode Island were not represented in the convention. Dele- gates from New Hampshire arrived soon after this vote. The importance of the Connecticut compromise can hardly be overestimated; it is not too much to say, that without it the Constitution could not have been ratified. Two states, Rhode Island and North Caro- lina, rejected the Constitution; a third, New York, would have done so, if by its so doing the adoption of the Constitution would have been defeated. Rejec- tion by two more states would have defeated the adoption of the Constitution, and these two states would have been found in Delaware and New Jersey, if equal representation in the Senate had not been conceded to them. the States may probably alter in the number of their inhabitants, the Legislature of the United States shall be authorized, from time to time, to appoint the num- ber of representatives and in case any of the States shall hereafter be divided, or enlarged by addi- tion of territory, or any two or more states united, or any new states created within the limits of the United States, the Legisla- ture of the United States shall possess authority to regulate the number of representatives in any of the foregoing cases, upon the principle of the number of inhab- itants, according to the provisions hereafter mentioned; provided always that representation ought to be proportioned according to direct taxation, and in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circum- s*ances of the States. "Resolved, That a census be taken within six years from the first meeting of the Legislature of the United States, and once within the term of every ten years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their resolution of the 18th day of April, 1783; and that the Legislature of the United States shall proportion the direct taxa- tion accordingly. "Resolved, That all bills for raising or appropriating money, and for fixing the salaries of officers of the Government of the United States shall originate in the first branch of the Legislature of the United States; and shall not be altered or amended in the second branch; and that no money shall be drawn from the Public Treasury, but in pursuance of appropriations to be originated in the first branch. "Resolved. That in the second branch of the Legislature of the United States, each State shall have an equal vote." 234 LEGAL HISTORY. With the adoption of the Connecticut compromise, the union between the small states and the extreme States' Rights party came to an end. Delaware and New Jersey became among the strongest supporters of a true national government, and were two of the three states whose convention ratified the new Con- stitution without a dissenting vote. The compromise, however, aroused great bitterness on the part of Pennsylvania and Virginia, and even rendered the ratification of the Constitution by the latter State doubtful. Scarcely less bitter than the controversy between the large and small states was that between the opponents and supporters of slavery; an antagonism which gave rise to the second and third compromises of the convention. The first of these settled the ques- tion of how slaves should be counted in determining the population of a State, for the purpose of apportion- ing direct taxes and representation. The extreme South, the States of South Carolina and Georgia, in- sisted on full representation in Congress for the slaves. To such abolitionists as Governor Morris or James Wilson any additional representation granted to a State on account of people whom she not only did not permit to vote, but even considered as mere chattels, seemed absurd and unjust. The compromise which settled this contest was one anticipated, in part, by a vote of the Congress several years before. In 1783, when Congress was endeavoring to apportion the quotas of revenue among the different states, this same ques- tion as to the weight to be given to the slave population had arisen. On this occasion, James Madison proposed a compromise, which was accepted by Congress, by which the slave was rated as equal to three-fifths of a AMERICAN CONSTITUTIONAL HISTORY. 235 freeman. This same ratio was now adopted by the convention for the apportionment both of representa- tives and direct taxes. The third compromise was, in the words of Gov- ernor Morris, "a bargain" between the extreme southern states and New England. Each of these two sections had a particular grievance against the Constitution as it stood in the form reported by the Committee of Detail on August 6th. The sixth sec- tion of the seventh article, which required a two-third vote to Congress to pass a navigation act, was a severe blow to the shipping interests of New England, while the South was dissatisfied with the absence of a pro- hibition against the laying of export duties by Congress. Much more alarming to the South, however, was the proposal of Luther Martin of Maryland, on August 21st, to allow Congress to tax or even prohibit the importation of slaves. The whole social and industrial organization of the extreme South was at this time based on the institution of slavery, while the welfare of New England depended largely on her shipping. A compromise between these two sections was the logical result. The provisions of this compromise were that the migration or importation of such persons as any of the states then existing should think proper to admit, should not be prohibited prior to the year 1808, although a tax not to exceed $10 per head might be levied on such importation; that no tax or duty shall be laid on articles exported from any states; and that section six of article seven of the Constitution (as it then stood), which required a two-third vote of Congress to pass a navigation act, should be stricken out. This compromise was adopted by the vote of seven states to four; New Hampshire, Massachusetts, 236 LEGAL HISTORY. Connecticut, Maryland, North Carolina, South Caro- lina and Georgia, against New Jersey, Pennsylvania, Delaware, and Virginia. It is interesting to notice that next to Pennsylvania, the State whose delegates were most bitterly opposed to the continuation of slave trade was Virginia. In theory, there is much to be condemned and little to be approved in this compro- mise. It was, however, a practical necessity, if the Constitution was to be adopted. If the slave trade had been prohibited, South Carolina and Georgia would have rejected the Constitution, and their defec- tion would have been as fatal to its success as the loss of Delaware and New Jersey. SECTION 100. ADOPTION OF THE CONSTITUTION. The Constitution, as reported to Congress and the states, did not exactly suit anyone. It was the result of compromises, in which all had yielded something. It is from this standpoint that we must judge it. The United States Constitution is the product of gradual growth and the needs of the times, not of abstract reasoning. Even with its compromises, the fate of the pro- posed Constitution hung in the balance for many months. After eight days' discussion, it was sub- mitted to the several states by Congress. The Dela- ware Convention led the way by ratifying the Constitu- tion by a unanimous vote on the 6th day of December. Pennsylvania and New Jersey followed during the same month, the latter unanimously, the former by a two-thirds vote. Georgia opened the year 1788 by ratifying it unanimously on January 2nd, and Con- necticut followed a week later by a vote of more than three to one. The first hard contest occurred in Massachusetts, where the contest in the convention AMERICAN CONSTITUTIONAL HISTORY. 237 lasted four weeks. The action of Samuel Adams in finally declaring for it turned the scale and the Con- stitution was ratified by a vote of 187 to 168. This ratification, however, was accompanied by the proposal of certain amendments to the Constitution which be- came largely the basis for the first amendments, Maryland in April and South Carolina in May, next ratified the Constitution by large majorities. New Hampshire secured the honor of being the ninth State to ratify the Constitution, and thus assuring its adop- tion, by ratifying it on June 21st, and Virginia followed four days later. On July 26th, the New York Con- vention, mainly through the influence of Hamilton, ratified the Constitution by a narrow majority. 10 Rhode Island and North Carolina at first rejected the Constitution. SECTION 101. THE EARLY AMENDMENTS. The first Congress took steps to supply the absence of a Bill of Rights in the Constitution, by submitting twelve proposed amendments to the states in 1789. Ten of those were ratified by a sufficient number of states, and became the first ten amendments. The decision of the Supreme Court in Chisholm vs. Georgia, to the effect that a State could be sued by a citizen of another State led to the eleventh amendment. The twelfth amendment resulted from the unsatisfactory state of the law governing the election of the President, as shown by the election of 1800. 10 The Constitution was ratified by Connecticut, January 9, 1788, the different states on the fol- 128-40. lowing days and by the follow - Massachusetts, February 6, ing votes: , 1788, 187-168. Delaware, December 6, 1787, Maryland, April 28, 1788, 63- unanimously. 11. Pennsylvania, December 12, South Carolina, May 23, 1788, 1787, 46-23. 149-73. New Jersey, December 18, New Hampshire, June 21, 1788. 1787, unanimously. 5746. Georgia, January 2, 1788, unan- Virginia, June 25, 1788, 89-79. imously. New York, July 26. 1788 30-27 238 LEGAL HISTORY. SECTION 102. POLITICAL DIVISIONS ON THE INTER- PRETATION OF THE CONSTITUTION. This question as to the relative powers of the government of the United States and of the State governments, was the principal dividing line between the American political parties, in the early days of the Republic. It was, in fact, by politics as much as by law, that the settlement of this controversy was to be effected. It must be borne in mind that in spite of the small changes which have been made by amend- ment in the text of the Constitution, since its adoption, the relations which the states bear to the general government at the present tune is a very different thing from the relation which they bore in the early days of the Constitution. The weight of power, the center of gravity, which at first inclined towards the individual states, has now swung far over towards the central government. The movement in this direction has been almost continuous throughout the hundred and nineteen years which have elapsed since the Con- stitution was adopted, but its most rapid progress was during the epoch of the Civil War. The Constitu- tional History of the United States is in fact divided by this war into two sharply defined periods. The grounds for differences of opinion as to the meaning of the Constitution, largely arose out of the fact that the wording of the Constitution had been the result of compromise. Only thirty-nine of the fifty- five delegates to the convention signed the Constitu- tion, and it failed to completely satisfy any one. Indeed, had it satisfied- the extreme party it could never have been adopted. The result was, that after the adoption of the Constitution each faction sought for that interpretation of the instrument which would best serve to carry out their own views of government. AMERICAN CONSTITUTIONAL HISTORY. 239 At the election of 1789, the conduct of the govern- ment under the newly adopted Constitution, was not unnaturally given to the party friendly to this instru- ment, and the government of the United States re- mained under the control of this party for twelve years. The efforts towards the strengthening of the central government, which were made during this period, were the work of the legislative and executive departments. The judicial department was still weak and the tremendous influence which this department was later to exercise in the development of the govern- ment of the United States was not yet appreciated. The troubled conditions of the tunes caused the Federal party, during the administration of President John Adams, to pass a series of laws, culminating with the Alien and Sedition Acts, for the purpose of strength- ening the central government. These laws aroused great indignation and opposition to the government and ulti- mately drove the Federalist party from power. A more immediate result was the calling forth of the most dra- matic enunciations of the State rights principles to be found in American history prior to the secession period. The Virginia and Kentucky resolutions were pro- clamations passed by the Legislatures of these states in 1798 and 1799, denouncing the recent usurpations of power (as viewed by the members of these legis- latures) by the National Government, and setting forth the relations between the general and state govern- ments, from the standpoint of the states rights or strict constructionist standpoint. The Virginia resolutions of 1798 declared that the constitution was a compact by which the states had surrendered only a limited portion of their powers, that whenever the Federal Government undertook a step over the boundary of its delegated authority, it 240 LEGAL HISTORY. was the duty of the states to interpose and maintain the rights which they had reserved to themselves; that the Alien and Sedition laws were an usurpment by the Federal Government of powers not granted to it, since the abridgment of liberty of speech or of the press had been especially forbidden by the constitution; that the State of Virginia solemnly declared those laws to be unconstitutional, and appealed to the other states to join in that declaration; and that her governor should be instructed to transmit copies of these reso- lutions to the governors of other states to be laid before the Legislatures. These resolutions were repeated by the Virginia Legislature in the following year. The Kentucky resolutions of 1798 were to the same general effect as those of Virginia, but with the addi- tional declaration that the states were one party to the compact, and the Federal Government was the other, and that each party must be the judge of infrac- tions of the agreement, and of the mode and measure of redress. The next year the Kentucky resolutions of 1799 were adopted. They declared "nullification'* to be the "rightful remedy," but qualified this by saying that they "bowed to the laws of the Union." On March 4, 1801, the control of both the execu- tive and legislative departments of the United States Government passed into the hands of the strict Con- structionists Party, which was to retain its control of these departments, with the exception of brief intervals, for sixty years. During the rule of this party the above mentioned departments, were hostile to the development of the power of the central govern- ment at the expense of those of the states, and yet during this very period we find a great increase of the powers of the National Government, a result brought about by the work of the Judicial Department. AMERICAN CONSTITUTIONAL HISTORY. 241 One of the last official acts of President John Adams was the appointment of John Marshall as Chief Justice of the Supreme Court of the United States. This appointment was to strongly affect the future consti- tutional and legal history of the country. Under his leadership the Supreme Court soon began to take a position relative to the constitution which materially contributed to the completion of the work of making one Nation out of the United States. For the half century beginning in 1820 these ques- tions of State rights were inseparably connected with the slavery question. SECTION 103. RECENT CONSTITUTIONAL HISTORY. The important results of the Civil War, from a constitutional law standpoint were the overthrow of the doctrine of secession and the adoption of the last three amendments. These amendments, together with the important decisions of the Supreme Court of the United States, on questions growing out of the Civil War and the reconstruction period, will be discussed in Chapter IX of United States Constitutional Law. The period since the Civil War has been one which has given greatly increased powers to the central government. The attempted undue exaltation of the power of the states has been succeeded by a re-action which has gone as far to the other extreme. The present tendencies of the times and the avowed purpose of a large class in the community, is towards the reduction of state governments to a position of strict subordination to the Federal authority. Clashes be- tween the two governments are becoming very fre- quent as is illustrated by the San Francisco school controversy, and the injunctions recently issued by Federal courts against the enforcement of State laws. vol. i. ia. QUESTIONS. INTRODUCTION TO THE STUDY OF LAW.' Page 11. 1. What is law in the broad sense of the term? 2. Define law in its more restricted sense. 3. How has the Supreme Court of the United States denned the laws of a State ? Page 12. 1. What is the proper purpose of laws? 2. What is the basis for laws in absolute monarchies ? 3. What is the basis of law in Constitutional governments? 4. What makes society possible ? Page 13. 1. What are the principal legal conceptions? 2. In what order can they be most logically studied? Page 14. 1. In what order did they first become comprehended by early races ? Page 15. 1. What is substantive law? 2. What is adjective law ? 3. How does the relation existing today between adjective and substantive law differ from the relation existing in early times? 4. Who was Bracton ? Under what heads did he write of the law ? 5. What was the origin of law ? 6. What were the early forces behind law? Page 16. 1. Compare the methods of enforcing the rules of International Law today,with the methods of enforcing the rules of private law in early times. 243 244 QUESTIONS. 2. What were the oldest branches of the law? Page 17. 1. What is the first step towards social organization? 2. What is the basis of the family ? 3. How did marriages arise in early times ? 4. Under such forms of marriage what is naturally the position of the wife ? 5. How long did the authority of the father over his children continue ? Page 18. 1. In case of the commission of a crime which wrong will the untrained mind most easily grasp, the wrong to the indiv- idual or the wrong to society ? 2. What is the earliest method of redress for wrong doing? 3. What is the first step away from this state of affairs ? Page 19. 1. What classification of property is recognized in all systems of laws? 2. Which was the earlier to come into existence, real or personal property ? 3. When does the law of real property become of importance? Page 20. 1. How do primitive and highly developed systems of law differ in respect to contract law? 2. How do the Roman law and the Common law differ in respect to Contract law ? Page 21. 1. Name the various branches of the law treated in this series of books. Page 22. 1. To what extent has the Common law become the basis of American law? 2. To what extent has Equity become the basis of American law? 3. To what extent has the Civil law become the basis of American law? INTRODUCTION TO THE STUDY OF LAW. 245 Page 23. 1. What Federal law is there? 2. What different systems of adjective law are found in the different states ? 3. Into what two divisions is the whole body of the law divided ? Page 24. 1. What constitutes the written law of the United States? 2. What constitutes the written law of the states ? 3. What are municipal ordinances? 4. Where is the unwritten law found? Page 25. 1. Where can the unwritten law of a State be found? 2. What is the Reporter system? 3. What is the relation between law and history? Page 26. 1. What were the three great law developing nations of the world ? QUESTIONS. LEGAL HISTORY. CHAPTER I. Page 29. 1. From what races were the Babylonians descended? 2. What causes brought the Babylonians into constant contact with other peoples ? Page 30. 1. What was the most important and enduring work of the Babylonians ? Page 31. 1. How was the Babylonian law spread to other nations? 2. What was the Code of Hammurabi? Page 32. 1. What was the general character of Babylonian adjective law? 2. How were questions of fact decided ? Page 34. 1. What was the form of the Babylonian marriage? 2. Was polygamy permitted? 3. What was the law as to divorce ? Page 35. 1. What was the position of a married woman? 2. What control did the father have over his children? 3. How could land be transferred ? 4. What was one peculiar feature of the law of conveyancing? Page 36. 1. What was the character of the mortgages in use at Babylon? 2. Did the law allow a person to dispose of his property by will ? 3. What was the condition of contract law? 247 248 QUESTIONS. Page 37. 1. What was the position of banking in Babylon? 2. What important modern principle in admiralty law was recog- nized in Babylon? CHAPTER II. Page 39. 1. Was Greece a great law making nation? 2. What is the position of Greece in legal history? Page 40. 1. What forms of government existed in Greece? 2. What was the connection between law and religion? Page 41. 1. What were the different steps in the trial of a law suit at Athens ? Page 42. 1. What were the rules as to the admissibility of evidence at Athens ? 2. From what nations was the commercial law of the Greeks borrowed ? CHAPTER III. Page 43. 1. What influence has Roman law had upon the later develop- ment of law ? Page 44. 1. How did the institutions of early Rome compare with those of other cities in Italy and Greece ? Page 45. 1. What was the character of the early Roman family? 2. What was the earliest form of marriage at Rome? 3. Who could be married by this ceremony ? LEGAL HISTORY. 249 Page 46. 1. What was the earlieat form of Roman government? 2. When was the Republic established? 3. Was the early Roman Republic a democracy or an oligarchy? Page 47. 1. What were the earliest reforms in the law? Page 48. 1. Who were the decemvirs ? 2. Why were they appointed ? 3. What was the law of the Twelve Table*? Page 49. 1. What law marked the close of the contest between patricians and plebeians? Page 50. 1. What were the four principal legis actiones? Page 51. 1. What were the characteristics of early contract law at Rome? 2. What is the difference between the attitude of ancient and the modern nations relative to extending their laws and insti- tutions over other races ? Page 52. 1. What was the jus gentium? 2. For whom was it originated ? Page 53. 1. What was the later history of the jus gentium? Page 54. 1. What caused the fall of the Roman Republic? 2. What were the Constitutions ? Page 55. 1. What was the jus respondendi? Page 56. 1. What influence did the Roman law writers exert upon the development of the law ? 250 QUESTIONS. 2. Into what two schools were they divided? Page 57. 1. When did the codification of Roman law begin? 2. What were the earliest codes ? 3. When and by whose orders was the Theodosian code compiled ? 4. What influence was exerted by this code? 5. In what code is the highest culmination of Roman law found? Page 58. 1. Who was Justinian? 2. What legal works were compiled under his direction? Pages 59-65. 1. Give a brief outline of the charter and influence of these works. CHAPTER IV. Page 67. 1. By what races was the Western Roman Empire overthrown ? 2. What was the character of the conquest of the western prov- inces of the Eastern Continent? 3. What systems of law grew up in these provinces after their conquest ? Page 68. 1. What were the principal Romano-Barbarian codes? Page 69. 1. In what country and what century did the revival of the study of Roman law take place ? Page 70. 1. What is the Civil law? Page 71. 1. What is the Canon law? 2. In what treatises is it found? Page 72. 1. What was the extent of the jurisdiction of the Canon law? LEGAL HISTORY. 251 CHAPTER V. Page 73. 1. Where are the beginnings of the English laws and political institution to be found ? Page 74. 1. What differences were there between the Anglo-Saxon con- quest of Britain and the Prankish conquest of Gaul? Page 75. 1. What was the origin of the foreign law terms hi the English language ? 2. What is the oldest account of Anglo-Saxon laws and customs ? Page 76. 1. Give an outline of the customs of the early Germanic tribes as described by Tacitus. Pages 77-78. 1. Describe the Anglo-Saxon conquest of Britain. Page 79. 1. What changes in the Anglo-Saxon laws and institutions were occasioned by their conquest of Britain ? Page 80. 1. What were the four periods of Anglo-Saxon history in Eng- land? 2. When did the period of the Seven Kingdoms begin? Page 81. 1. What were the seven Anglo-Saxon kingdoms? Page 82. 1. What three kingdoms became ihe ruling powers in England in the seventh century ? Page 83. 1. What were the most important characteristics of the history of the eighth century in England ? 252 QUESTIONS. 2. What was the principal work of Ine? Page 84. 1. Who was the greatest character in English history during the eighth century? 2. What was the character of his work? Page 85. 1. Under what kingdom and king was the first union of Anglo- Saxon England accomplished ? Page 86. 1. What was the character of this union? 2. What foreign invasion took place hi the ninth century? Page 87. 1. What were the provisions of the treaty of Wedmore? 2. What was the principal work of Aelfred after the treaty of Wedmore ? Page 88. 1. From what sources did Aelfred draw in the compilation of his laws? Page 89. 1. What was the character of the first half of the tenth century hi English history? 2. Who was Dunstan? Page 90. 1. What was the character of his work? 2. What reign is known as the Augustan period of Anglo-Saxon history? Page 91. 1. When was the feudal system introduced into England? 2. What was the character of Anglo-Saxon feudalism? Page 92. 1. How did it differ from Norman feudalism? Page 93. 1. Compare the Anglo-Saxon and the Danish conquests of Eng- land. LEGAL HISTORY. 253 Page 94. 1. What was the character of the reign of Canute? 2. What was his great policy? Page 95. 1. What was the character of the reign of Eadward the Confessor? Page 96. 1. Was the Anglo-Saxon kingdom ever an absolute monarchy? 2. What was the origin of the Witenagemote ? Page 97. 1. How was the Witenagemote constituted? 2. What were its powers and duties? Page 98. 1. What two kinds of land ownership were there among the Anglo-Saxons ? 2. What was folc-land? 3. What was boc-land? 4. Were wills allowed among the Anglo-Saxons ? 5. What were the regular courts? Page 99*. 1. What were the Anglo-Saxon methods of trial? CHAPTER VI. Page 101. 1. Upon what grounds was William of Normandy's claim to the English throne based? 2. What was the basis of Harold's claim? 3. How was the contest determined? Page 102. 1. What changes in English laws and government were the im- mediate results of the Norman Conquest ? Page 103. 1. How did the feudalism introduced into England differ from Anglo-Saxon feudalism? 2. How did it differ from Norman feudalism ? 254 QUESTIONS. Page 104. 1. What was the effect of the struggles between the English Kings and the barons? 2. What was Henry I's Charter of Liberties? Page 105. 1. What other charters did Henry I grant? .2. What was the effect of the disputed succession to the throne between Stephen and Matilda? Page 106. 1. To what race did Henry II belong on his father's side? 2. What was the effect of this ancestry? 3. What did the reforms of Henry II consist of? Page 107. 1. What was the character of the government of John? Page 108. 1. What was Magna Charta? 2. What has been its influence and effect ? Page 109. 1. What were its four principal provisions? Page 110. 1. Compare the work of the reformers of the thirteenth century with that of those of the seventeenth. Page 111. 1. What changes had taken place in the Curia Regis prior to the time of Simon de Montfort? Page 112. 1. What innovations were made by Simon de Montfort in the Parliament of 1265? 2. When was this new principle of representation finally adopted ? 3. What was the general character of the government and re- forms of Edward I? LEGAL HISTORY. 255 Page 113. 1. When was Parliament divided into two houses? 2. What was the character of the reign of Edward II? Page 114. 1. What rights did the House of Commons succeed in establish- ing during the reign of Edward III ? Page 115. 1. What was the cause of the War of the Roses? 2. Upon what grounds were the claims of the House of Lan- caster to the English throne based? 3. Upon what grounds were the claims of the House of York to the English throne based? Pages 116-118. 1. What was the result of the war as to the question of the king- ship? 2. What was the effect of this war upon the House of Lords ? 3. What was the effect of this war upon the House of Commons? 4. What was the effect of this war upon the liberties of England? Page 119. 1. What was the character of the English government during the Tudor period? Page 120. 1. What was the position of the House of Commons during the Tudor period? Page 121. 1. What was the theory of James I as to the position of the King of England? 2. What was the view on this subject held by the mass of the English people? Page 122. 1. What rights were claimed by the first Parliament of the reign of James I? Page 123. 1. What were the two great weapons of the House of Commons in their contest against the Stuarts? 256 QUESTIONS. Page 124. 1. What position was taken by the nobility of England in the contests during the seventeenth century? 2. What were the relations between the King and the courts? Page 125. 1. How does Hallam sum up the work of the House of Commons during the reign of James I? 2. What was the Petition of Right? 3. What were its provisions? Page 126. 1. What was the effect of the Petition of Right? Pages 127-128. 1. What was the policy of Charles I towards Parliament? Page 128. 1. What was ship money? 2. When and from whom might it legally be collected ? 3. When and from whom did Charles I attempt to collect it? 4. Who resisted its payments in the courts? 5. What was the decision in this case? Page 129. 1. What caused the summoning of the Long Parliament? Page 130. 1. What abuses were abolished by the Long Parliament during the first few months of its existence? Page 131. 1. What caused the division among the members of the Long Parliament ? 2. What was the "Great Remonstrance" ? Page 132. 1. What causes led up to the war between Charles I and Parlia- ment? LEGAL HISTORY. 267 Page 133. 1. What was the result of the war? 2. What was the position of Cromwell and his army after the close of the war? Page 134. 1. With what difficulties was Cromwell confronted? Page 135. 1. What was the cause of the danger to English liberty during the reign of Charles II? Page 136. 1. What was the character of the government of Charles II? Page 137. 1. What was the character of the government of James II? 2. How was this reign terminated? Page 138. 1. What was the character of the history of Continental Europe during the seventeenth century? 2. What was the Bill of Rights? Page 139. 1. What were the principal provisions of the Bill of Rights? 2. What was the result of the Bill of Rights? Page 140. 1. What was the attitude of William III toward English politics? Page 141. 1. What is the English ministry system? Page 142. 1. What events were connected with the accession of the House of Hanover? 2. What was the character of the reign of the first two rulers of this house? 3. Who were the two great prime ministers during this period? VoL 117. 258 QUESTIONS. Page 143. 1. In what respects did George III differ in his policy and char- acter from that of his two predecessors? 2. What effect did the result of the American Revolution have upon the English government ? CHAPTER VII. Page 145. 1. What ultimate effect did the Norman Conquest have upon English law? 2. What changes hi the law of England were made by William the Conqueror? Page 146. 1. Describe the Feudal system. Page 147. 1. What is tenure? Pages 148=150. 1. Name and describe the principal Feudal tenures. Page 151. 1. What were the incidents of tenure by knight service? Page 152. 1. What causes led to the overthrow of the Feudal system? 2. What statute entirely abolished it in England ? Page 153. 1. What did the Statute of De Donis provide? 2. What did the Statute of Quia Emptores provide? 3. What was the general character of the law relative to procedure and evidence during the century which followed the Norman Conquest ? Page 154. 1. What were the original writs? Page 155. 1. Name some of the most important of the ancient original writs. LEGAL HISTORY. 259 Page 156. 1. What causes led to the passage of the Statute of Westmin- ster II? Page 157. 1. What were the provisions of this Statute? 2. What was its effect ? Page 158. 1. What was outlawry? Page 159. 1. What was the most important advance during the twelfth and thirteenth centuries in the field of criminal law? 2. What was the origin of trial by jury? Page 160. 1. What were the laws governing marriages in early English law? 2. What is a Commcn law marriage ? Page 161. 1. What two forms of divorce existed at Common law? 2. What was the divorce a vinculo matrimonii? 3. What was the divorce a mensa et thora ? 4. What was the Common law rule as to bastards ? 5. What position does Contract law occupy in early Teutonic systems ? Page 162. 1. What causes brought about the development of the law of Contracts in the twelfth century ? Page 163. 1. Describe the contest in England between the Common law and the Civil and Canon law. Page 164. 1. What was the Constitution of Clarendon? Page 165. 1. What was the Statute of Uses? 260 QUESTIONS. Page 166. 1. What was the Statute of Wills? 2. What was the Statute of Charitable Uses ? 3. What was the Habeas Corpus Act ? CHAPTER VIII. Page 167. 1. What causes led to the birth of Equity Jurisprudence? Page 168. 1. What causes brought about the rigidity of the Common law? Page 169. 1. Describe the beginnings of Equity Jurisprudence. Page 170. 1. What was the position of Equity Jurisprudence during the reign of Richard II? Page 171. 1. Who was John de Waltham and what part did he play in the development of Equity Jurisprudence? Page 172. 1. What were the early causes for going into the Courts of Equity ? Pages 173^177. 1. Describe the general character of early Bills hi Equity. Page 178. 1. When did Equity begin to take jurisdiction in cases of fraud? Pages 180-181. 1. Describe the contest between the Equity Courts and the Common law Courts over the question of the jurisdiction of the former. Page 182. 1. What are uses? 2. When and for what purpose were they introduced into Eng- land? LEGAL HISTORY. 261 Page 183. 1. What causea led to their increased use? Page 184. 1. What was the Statute of Uses? 2. With what purpose was it passed ? 3. What was its effect? CHAPTER IX. Page 185. 1. What effect did the date of their settlement have upon the character of the English colonies in America? Page 186. 1. What was the character of the history of the seventeenth century in England? Pages 187-193. 1. What was the basis, as explained in the decision of Johnson vs. Mclntosh, of the claims to territory hi America by the various European governments? Page 194. 1. What three forms of government existed among the English colonies in America? 2. What was the character of the government of the Charter colonies ? Page 195. 1. What was the character of the government of the proprietory colonies ? 2. What was the character of the government of the royal prov- inces? Page 196. 1. Describe the colonial government and history of Virginia. Pages 197-200. 1. Describe the colonial government and history of Massachu- setts. 262 QUESTIONS. Page 201. 1. Describe the colonial government and history of Connecticut. Page 202. 1. Describe the colonial government and history of Rhode Island. Page 203. 1. Describe the colonial government and history of New Hamp- shire. Page 204. 1. Describe the colonial government and history of New York. Page 205. 1. Describe the colonial government and history of New Jersey. Page 206. 1. Describe the colonial government and history of Pennsylvania. 2. Describe the colonial government and history of Delaware. Page 207. 1. Describe the colonial government and history of Maryland. Page 208. 1. Describe the colonial government and history of North Carolina. 2. Describe the colonial government and history of South Carolina. Page 209. 1. Describe the colonial government and history of Georgia. 2. What were the causes of the Revolutionary War? Page 210. 1. What was the real character of this contest ? Page 211. 1. What was the Stamp Act ? 2. What was the result of its passage? 3. What was the Continental Congress? LEGAL HISTORY. 263 Page 212. 1. What were the Articles of Confederation? 2. When were they adpoted ? Page 213. 1. What was the character of the government created by the Articles of Confederation ? Pages 214-217. 1. What judicial powers did the United States Government possess, under the Articles of Confederation? Page 218. 1. What were the causes leading up to the Constitutional Con- vention ? Page 219. 1. What was the Annapolis Convention? CHAPTER X. Page 221. 1. When did the Constitutional Convention meet? 2. What was the general character of its members? Page 222. 1. What was the principal source from which the provisions of the Federal Constitution were drawn? Page 223. 1. What were some of the other sources drawn upon? Page 224. 1. What was the Virginia Plan? Pages 225-226. 1. What were its principal provisions ? Page 227. 1. What was the New Jersey Plan? 264 QUESTIONS. Pages 228-229. 1. What were its principal provisions? Pages 230-233. 1. What was the Connecticut Compromise, its causes and effects ? Page 234. 1. What was the second great compromise in the Constitutional Convention ? Page 235. 1. What were the provisions of the third great compromise in the Constitutional Convention ? 2. How were the votes necessary for its passage secured? Page 236. 1. Describe the adoption of the Constitution. Page 237. 1. What was the cause which led to the adoption of the first amendment ? 2. What was the cause which led to the adoption of the eleventh amendment ? 3. What was the cause which led to the adoption of the twelfth amendment ? Page 238. 1. What was the first great dividing line between political parties ? Page 239. 1. What were the Virginia Resolutions of 1798 and 1799? Page 240. 1. What were the Kentucky Resolutions of 1798 and 1799? Page 241. 1. What influence did Chief Justice Marshall have upon the constitutional history of the United States? 2. Describe the recent Constitutional history of the United States. APPENDIX A. THE CODE OF HAMMURABI. (The Code of Hammurabi, the earliest known Code, consists of 282 sections, certain selections from which follow.) 1. If a man weaves a spell about another man (i. e. accuses him) and throws a curse on him, and cannot prove it, the one who wove the spell shall be put to death. 2. If a man weaves a spell about another man, and has not proved it, he on whom suspicion was thrown shall go to the river, shall plunge into the river. If the river seizes hold of him, he who wove the spell shall take his house. If the river shows him to be innocent, and he is uninjured, he who threw suspicion on hirn^ shall be put to death. He who plunged into the river shall take the house of him who wove the spell on him. 3. If a man has accused the witnesses in a lawsuit of malice and has not proved what he said, if the suit was one of life (and death), that man shall be put to death. 4. If he has sent corn and silver to the witnesses, he shall bear the penalty of the suit. 5. If a judge has delivered a sentence, has made a decision and fixed it in writing, and if afterwards he has annulled his sentence, that judge for having altered his decision shall be brought to judgment; for the penalty inflicted in his decision, twelve-fold shall he pay it, and publicly shall they remove him from his judgment seat. He shall not come back and shall not sit in judgment with the other judges. 6. If a man has stolen property from the god or palace, that man shall be put to death. 7. If a man has bout or received in deposit, silver, gold, a man or woman slave, an ox, a sheep, an ass, or whatever it may be, from the hands of a son of another or a slave or another, without witness or contract, that man shall be put to death as a thief. 8. If anyone has stolen an ox, a sheep, an ass, a pig, or a boat, if it belongs to the god or to the palace, he shall return it thirty-fold; if it belongs to a noble he shall return it ten-fold; if the thief has nothing with which to repay, he shall be put to death. 9. If anyone who has lost something, finds his something that was lost in the hand (possession) of another; if the man in whose hand the lost object was found says: "A trader sold it to me, before witnesses I paid for it," and if the owner of the lost object says: "Witnesses who know my lost object I will bring," then shall the purchaser bring the seller who sold it to him, and the witnesses before whom he bought it, and the owner of the lost object shall bring witnesses who know his lost goods; the judge shall consider their words, and the witnesses before whom the purchase was made, and the wit- nesses who know the object shall bear testimony before God. The seller 366 266 APPENDIX A. is a thief and shall be put to death. The owner of the lost object shall get back the money he paid from the house of the seller. 10. If the buyer does not bring the seller who sold it to him and the witnesses before whom he bought it; if the owner of the lost object brings the witnesses who know his object, the buyer is a thief and shall be killed; the owner shall get his lost object. 11. If the owner of the lost object does not bring his expert witnesses, then he is a miscreant; he has accused falsely, he shall die. 12. If the seller has gone to his fate, the buyer shall receive from the house of the seller five times the costs of the suit. 13. If that man has not his witnesses at hand, the judge shall give him a respite of six months. If in six months his witnesses do not come, that man is a miscreant and shall bear the costs of the suit. 14. If anyone steals the minor son of a man, he shall be put to death. 15. If anyone has caused a male slave of the palace or a female slave of the palace, the male slave of a noble or the female slave of a noble, to go out of the gate, he shall be put to death. 16. If anyone harbours in his house a runaway male or female slave from the palace or the house of a noble, and does not bring them out at the command of the majordomo, the master of the house shall be put to death. 17. If anyone has caught a runaway male or female slave in the field, and brings him back to his master, the master of the slave shall give him two shekels of silver. 18. If that slave will not name his owner, to the palace he shall bring him; his case shall be investigated ; to his owner one shall bring him. 19. If he retains that slave in his house, and if, later, the slave is found in his hands, that man shall be put to death. 20. If the slave escapes from the house of the one who caught him, that man shall swear to the owner of the slave in the name of God and he shall be quit. 21. If anyone has broken a hole in a house, in front of that hole one shall kill him and bury him. 22. If anyone has committed a robbery and is caught, he shall be killed. 23. If the robber is not caught, the man who has been robbed shall make claim before God to everything stolen from him, and the town and its governor within the territory and limits of which the robbery took place shall give back to him everything he has lost. 24. If it was a life, the city and governor shall pay one mina of silver to his people. 25. If a fire breaks out in the house of a man, and some one who has gone thither to put it out raise his eyes to the goods of the master of the house and take the goods of the master of the house, that man shall be thrown into that fire. 42. If anyone has taken a field to cultivate, and has not made grain to grow in the field, he shall be charged with not having done his duty in the field; he shall give grain equal to that yielded by the neighboring field to the owner of the field. THE CODE OF HAMMURABI. 267 43. If he has not tilled the field, has let it lie, he shall give to the owner of the field grain equal to the yield of the neighbouring field; and the field which he left untilled, he shall harrow, sow, and return to its owner. 44. If any one has hired an unreclaimed field for three years, to open (cultivate) it, but has neglected it, has not opened the field, in the fourth year he shall harrow the field, hoe it, and plant it and return it to the owner of the field, and 10 GUR of grain for every 10 GAN he shall measure out. 45. If a man has rented his field to a cultivator for the produce and he has received his produce, and then a storm has come, and destroyed the harvest, the loss is the cultivator's. 46. If he has not received the produce from his field, but has given his field on a half or a third share, the grain which is in the field shall the owner and cultivator share according to their contract. 47. If the cultivator, because in the first year he did not obtain his living (?), had the field cultivated by another, the owner of the field shall not blame this cultivator, his field has been cultivated ; at the time of harvest he shall receive grain according to his contract. 48. If a man has a debt and a storm has devastated his field, and carried off the harvest, or if the grain has not grown on account of lack of water, in that year he shall give no grain to the creditor; he shall soak his tablet (in water, i. e., alter it), and shall pay no interest for that year. 49. If anyone has borrowed money from a merchant and given a ploughed field sown with grain or sesame to the merchant and said to him: "Cultivate the field, harvest and take the grain or sesame which is there- on;" when the cultivator has raised the grain or sesame in the field, at the time of harvest the owner of the field shall take the grain or sesame which is in the field, and shall give to the merchant grain in return for the money with its interest, which he took from the merchant, and for the support of the cultivator. 50. If he has given him an (already) cultivated field (of grain) or a field of sesame, the grain or sesame which is in the field shall the owner of the field receive; money and interest to the merchant he shall give. 51. If he has no money with which to pay him, Re shall give to the merchant sesame equal to the value of the money which he received from the merchant, with interest according to the king's tariff. 52. If the cultivator has not raised grain or sesame in the field, his contract is not altered. 53. If anyone is too lazy to keep his dikes in order and fails to do so, and if a breach is made in his dike and the fields have been flooded with water, the man in whose dike the breach was opened shall replace the grain which he has destroyed. 54. If he is not able to replace the grain, he and his property shall be sold, and the people whose grain the water carried off shall share (the proceeds). 55. If anyone opens his irrigation canals to let in water, but is careless and the water floods the field of his neighbour, he shall measure out grain to the latter in proportion to the yield of the neighbouring field. 66. If any one lets in the water and it floods the growth of his neigh- 268 APPENDIX A. hour's field, he shall measure out to him 10 GUR of grain for every 10 GAN (of land). 109. If a wine merchant when rebels meet in her house does not arrest them and take them to the palace, that wine merchant shall be put to death. 110. If a votary who does not live in the temple shall open a tavern or enter a tavern to drink, she shall be burned. 116. If the confined man has died in the house of his confinement as a result of blows or ill-treatment, the owner of the prisoner shall call his merchant to account. If the man was free-born, his son (of the merchant) one shall kill; if he was a slave, he shall pay one-third of a mina of silver, and shall lose possession of everything which he gave him. 117. If anyone has an indebtedness, sells wife, son, or daughter, for gold or gives them into bondage, three years in the house of their buyer or their taskmaster shall they labour; in the fourth year shall he let them go free. 118. If he gives away a man or woman slave into servitude, and if the merchant passes them on, sells them for money, there is no protest. 119. If anyone has contracted a debt and sells a slave who has borne him children, the money which the merchant paid, the owner of the slave shall pay back to him and buy back his slave. 120. If anyone has stored his grain in the house of another for keeping and a disaster has happened in the granary, or the owner of the house has opened the granary and taken out the grain, or if he disputes as to the whole amount which was deposited with him, the owner of the grain shall pursue (claim) his grain before God, and the master of the house shall return un- diminished to its owner the grain which he took. 127. If anyone has caused a finger to be pointed at a votary or the wife of a man and has not proved (his accusation against) that man, one shall bring him before the judge and brand his forehead. 128. If anyone has married a wife but has not drawn up a contract with her, that woman is not a wife. 141. If a man's wife, who lives in his house, sets her face to go out, causes discord, wastes her house, neglects her husband, to justice one shall bring her. If her husband says "I repudiate her," he shall let her go her way, he shall give her nothing for her divorce. If her husband says, "I do not repudiate her," her husband may take another wife; that (first) wife shall stay in the house of her husband as a slave. 148. If anyone has taken a wife and a sickness has seized her, and if his face is set towards taking another wife, he may take (her), but his wife whom the sickness has seized he may not repudiate her, she shall live in the house he has built, and as long as she lives he shall support her. 149. If that woman does not desire to live in the house of her husband, he shall give her the marriage portion she brought from her father's house, and she shall go. 150. If anyone has given his wife, field, garden, house, or property, and has left her a sealed tablet; after (the death of) her husband, her children shall contest nothing with her. The mother shall leave her inheritance to the child whom she loves; to a brother she shall not give it. THE CODE OF HAMMURABI. 269 163. If anyone has married a wife and she has borne him no children; if that woman has gone to her fate, if the dowry which that man took from the house of his father-in-law his father-in-law has returned; on the marriage portion of that woman the husband shall make no claim, it belongs to the house of her father. 164. If his father-in-law has not returned him the dowry, from her marriage portion he shall deduct all her dowry; and her marriage portion he shall return to the house of her father. 165. If any man to his son, the first in his eyes, has given a field, garden, and house, and has written a tablet for him; if afterwards the father has gone to his fate, when the brothers make a division, the present which the father gave him he shall keep; in addition, the goods of their father's house in equal parts they shall share (with him). 166. If a man has taken wives for his sons, for his little son a wife has not taken, if afterwards the father has gone to his fate, when the brothers divide the goods of their father's house, to their little brother, who has not taken a wife, besides his portion, money for a dowry they shall give him, and a wife they shall cause him to take. 167. If a man has married a woman, if she has borne him children, if that woman has gone to her fate; if afterwards he has taken another wife, who has borne him children, and if afterwards the father has gone to his fate; the children shall not divide the property according to their mothers; they shall take the marriage portion of their mother; their father's property they shall share in equal parts. 168. If anyone has set his face to cut off his son and says to the judge, "I cut off my son," the judge shall inquire into the matter; and if the son has no grievous offence, which would lead to being cut off from sonship, the father shall not cut off his son from sonship. 169. If he has a grievous crime against his father to the extent of cutting him off from sonship, for the first time he (the father) shall turn away his face; but if he commit a grievous crime a second time, the father shall cut off his son from sonship. 170. If to a man his wife has borne children, and if his servant has borne him children; if the father during his life has said: "You are my children,' ' to the children which his servant bore him, and has counted them with his wife's children; afterwards if that father has gone to his fate, the goods of the father's house shall the children of the wife and the children of the servant share on equal terms. In the division the children of the wife shall choose (first) and take. 171. And if the father, during his life to the children which his slave bore him has not said, "You are my children," and afterwards when the father has gone to his fate, the property of the father's house the children of the servant shall not share with the children of the wife. The freedom of the servant and her children shall be assured. The children of the wife cannot claim the children of the servant for servitude. The wife shall take her marriage portion and the gift which her husband gave her and wrote on a tablet for her, and shall remain in the house of her husband. As long as she lives she shall keep them, and for money she shall not give them; after her they belong to her children. 270 APPENDIX A. 172. If her husband has not given her a gift, her marriage portion she shall receive entire; and of the property of her husband's house, a portion like a son she shall take. If her children force her to go out of the house, the judge shall inquire into the matter, and if a fault is imputed to the children, that woman shall not go out of the house of her husband. If that woman has set her face against the gift which her husband gave her she shall leave it to her children. The marriage portion which came from her father's house she shall keep, and the husband of her choice she shall take. 173. If that woman, there where she has entered, to her second hus- band has borne children, and if afterward that woman dies, her marriage portion shall her earlier and her later children divide between them. 174. If to her second husband she has borne no children, her marriage portion shall the children of her first husband take. 175. If a free-born woman has married a palace slave or the slave of a noble, and has borne children; the owner of the slave on the children of the free-born woman shall make no claim for servitude. 176. And if a free-born woman marries a slave of the palace or the slave of a noble, and if when he married her she entered the house of the palace slave or of the nobleman's slave with a marriage portion from the house of her father, and from the time that they set up their house together have acquired property; if afterward either the slave of the palace or the slave of the nobleman has gone to his fate, the free-born woman shall take her marriage portion, and whatever her husband and she since they began housekeeping have made, into two parts they shall divide; one-half the owner of the slave shall take, one-half the free-born woman shall take for her children. 176a. If the free-born woman had no marriage portion, everything which her husband and she had acquired since they kept house together, into two parts they shall divide. The owner of the slave one-half shall take; one-half shall the free-born woman take for her children. 177. If a widow whose children are still young, has set her face to enter the house of another without consulting the judge, she shall not enter. When she enters another house the judge shall inquire into that which was left from the house of her former husband; and the goods of her former husband's house to her later husband and to that woman (herself) one shall confide, and a tablet shall make them deliver. They shall keep the house and bring up the little ones; no utensil shall they give for money. The buyer who shall buy a utensil belonging to the children of the widow, shall lose his money; the property shall return to its owner. 178. If a votary or a vowed woman to whom her father has given a marriage portion, a tablet has written, and on the tablet he wrote for her did not write, "After her she may give to whom she pleases," has not permitted her all the wish of her heart; afterwards when the father has gone to his fate, her field and garden shall her brothers take, and according to the value of her portion they shall give her grain, oil, and wool, and her heart they shall content. If her brothers have not given her grain, oil, and wool according to the value of her portion, and have not contented her heart, she shall give her field and garden to a cultivator who is pleasing to her, and her cultivator shall sustain her. The field, garden, and whatever her father gave her she THE CODE OF HAMMURABI. 271 shall keep as long as she lives, but for money she shall not give it, to another she shall not part with it; her sonship (inheritance) belongs to her brother. 179. If a votary of a vowed woman to whom her father has given a marriage portion, and has written her a tablet, and on the tablet which he wrote her has written, "property where (to whom) it seems good to her to give (let her give)," has allowed her the fulness of her heart's desire: afterwards when the father has gone to his fate, her property after her death to whomever it pleases her she shall give; her brothers shall not strive with her. 180. If a father to his daughter, a bride or vowed woman, a marriage portion has not given; after the father has gone to his fate, she shall receive of the possession of the father's house a share like one son. As long as she lives she shall keep it. Her property after her death shall belong to her brothers. 181. If a father has vowed to God a hierodule or a temple virgin, and has gone to his fate, she shall have a share in the possession of the father's house equal to one-third her portion as one of his children. As long as she lives she shall keep it. Her property after her death shall belong to her brothers. 182. If a father to his daughter, a votary of Marduk of Babylon, has not given a marriage portion, a tablet has not written; after the father has gone to his fate she shall share with her brothers in the possession of her father's house; a third of her share as his child (she shall receive). Control over it shall not go from her. The votary of Marduk shall give her property after her death to whomever it pleases her. 183. If a father to his daughter by a concubine has given a marriage portion, and has given her to a husband and has written her a tablet; after the father has gone to his fate, in the goods of the father's house, she shall not share. 184. If a man to his daughter by a concubine a marriage portion has not provided, to a husband has not given her; after the father has gone to his fate, her brothers shall provide her a marriage portion according to the value of the father's house, and to a husband they shall give her. 185. If a man has taken a small child as a son in his own name and has brought him up, that foster child shall not be reclaimed. 186. If a man has taken a small child for his son, and if when he took him his father and his mother he offended, that foster child shall return to the house of his father. 187. The son of a familiar slave in the palace service, or the son of a vowed woman, cannot be reclaimed. 188. If an artisan has taken a child to bring up, and has taught him his handicraft, no one can make a complaint. 189. If he has not taught him his handicraft, that foster child shall return to the house of his father. 190. If a man, a small child whom he took for his son and brought him up, with his own sons has not counted, that foster son shall return to his father's house. 191. If a man who has taken a small child for his son and brought him up, has afterwards made a home for himself and his acquired children, if he sets his face to cut off the foster child ; that child shall not go his way. His 272 APPENDIX A. adopted father shall give him of his goods one-third of a son's share, and then he shall go. Of the field, garden, and house he shall not give him. 192. If the son of a favourite slave or the son of a vowed woman to the father who brought him up and to the mother who brought him up say, "Thou art not my father, thou art not my mother," one shall cut out his tongue. 193. If the son of a palace favourite or the son of a vowed woman has known the house of his father and has hated the father who brought him up and the mother who brought him up, and has gone to the house of his father, one shall tear out his eyes. 194. If a man has given his son to a nurse and if his son has died in the hand of the nurse, and if the nurse, without the consent of his father or mother, another child has nourished, she shall be brought to account and because she nourished another child, without the consent of the father and mother, one shall cut off her breasts. 195. If a son has struck his father, one shall cut off his hands. 196. If one destroys the eye of a free-born man, his eye one shall de- Btroy. 197. If anyone breaks the limb of a free-born man, his limb one shall break. 198. If the eye of a nobleman he has destroyed, or the limb of a nobleman he has broken, one mina of silver he shall pay. 199. If he has destroyed the eye of the slave of a free-born man or has broken the limb of the slave of a free-born man, he shall pay the half of its price. 200. If he knocks out the teeth of a man who is his equal, his teeth one shall knock out. 201. If the teeth of a freedman he has made to fall out, he shall pay one-third of a mina of silver. 202. If anyone has injured the strength of a man who is high above him, he shall publicly be struck with sixty strokes of a cowhide whip. 203. If he has injured the strength of a man who is his equal, he shall pay one mina of silver. 204. If he has injured the strength of a freedman, one shall cut off his ear. 205. If the slave of a man has injured the strength of a free-born man, one shall cut off his ear. 206. If a man has struck another in a quarrel and has wounded him, and that man shall swear, "I did not strike him wittingly," he shall pay the doctor. 207. If he dies of the blows, he shall swear again, and if it was a free-born man, he shall pay one-half mina of silver. 208. If it was a freedman, he shall pay one-third a mina of silver. 215. If a doctor has treated a man for a severe wound with a lancet of bronze and has cured the man, or has opened a tumour with a bronze lancet and has cured the man's eye; he shall receive ten shekels of silver. 216. If it was a freedman he shall receive five shekels of silver. 217. If it was a man's slave, the owner of the slave shall give the doctor two shekels of silver. 218. If a physician has treated a free-born man for a severe wound THE CODE OF HAMMURABI. 273 with a lancet of bronze and has caused the man to die, or has opened a tumour of the man with a lancet of bronze and has destroyed his eye, his hands one shall cut off. 219. If a doctor has treated the slave of a freedman for a severe wound with a bronze lancet and has caused him to die, he shall give back slave for slave. 220. If he has opened his tumour with a bronze lancet and has ruined his eye, he shall pay the half of his price in money. 221. If a doctor has cured the broken limb of a man, or has healed his sick body, the patient shall pay the doctor five shekels of silver. 222. If it was a freedman, he shall give three shekels of silver. 223. If it was a man's slave, the owner of the slave shall give two shekels of silver to the doctor. 224. If the doctor of oxen and asses has treated an ox or an ass for a grave wound and has cured it, the owner of the ox or the ass shall give to the doctor as his pay one-sixth of a shekel of silver. 225. If he has treated an ox or an ass for a severe wound and has caused its death, he shall pay one-fourth of its price to the owner of the ox or the ass. 226. If a barber-surgeon, without consent of the owner of a slave, has branded the slave with an indelible mark, one shall cut off the hands of that barber. 227. If anyone deceives the barber-surgeon and makes him brand a slave with an indelible mark, one shall kill that man and bury him in his house. The barber shall swear, "I did not mark him wittingly," and he shall be guiltless. 228. If a builder has built a house for some one and has finished it, for every SAR of house he shall give him two shekels of silver as his fee. 229. If a builder has built a house for some one and has not made his work firm, and if the house he built has fallen and has killed the owner of the house, that builder shall be put to death. 230. If it has killed the son of the house-owner, one shall kill the son of that builder. 231. If it has killed the slave of the house-owner, he (the builder) shall give to the owner of the house slave for slave. 232. If it has destroyed property, he shall restore everything he destroyed; and because the house he built was not firm and fell in, out of his own funds, he shall rebuild the house that fell. 233. If a builder has built a house for some one and has not made its foundations solid, and a wall falls, that builder out of his own money shall make firm that wall. 234. If a boatman has caulked (?) a boat of 60 GUR for a man, he shall give him two shekels of silver as his fee. 235. If a boatman has caulked a boat for a man, and has not made firm his work, if in that year that ship is put into use and it suffers an injury, the boatman shall alter that boat and shall make it firm out of his own funds; and he shall give the strengthened boat to the owner of the boat. 236. If a man has given his boat to a boatman on hire, if the boatman Vol. I. 18. 274 APPENDIX A. has been careless, has grounded the boat or destroyed it, the boatman shall give a boat to the owner of the boat in compensation. 237. If a man has hired a boatman and a boat, and has loaded it with grain, wool, oil, dates, or whatever the cargo was; if that boatman has been careless, has grounded the ship and destroyed all that was in it, the boatman shall make good the ship which de grounded and whatever he destroyed of what was in it. 241. If a man has forced an ox to too hard labour, he shall pay one- third a mina of silver. 242. If a man hires (the ox) for one year he shall pay 4 GUR of grain as the hire of a working ox. 243. For the hire of an ox to carry burdens (?) he shall give 3 GUR of grain to its owner. 244. If anyone has hired an ox or an ass and if in the field a lion has killed it, the loss is its master's. 250. If a furious ox in his charge gores a man and kills him, that case cannot be brought to judgment. 251. If an ox has pushed a man (with his horns) and in pushing showed him his vice, and if he has not blunted his horns, has not shut up his ox; if that ox gores a free-born man and kills him, he shall pay one-half a mina of silver. 253. If a man has hired a man to live in his field and has furnished him seed grain (?) and oxen, and has bound him to cultivate the field; if that man has stolen grain or plants and they are seized in his possession one shall cut off his hands. 255. If he has given out the man's oxen on hire or has stolen the grain, has not caused it to grow in the field; one shall bring that man to judgment, for 100 GAN of land he shall measure out 60 GUR of grain. 261. If a man has hired a herdsman to pasture cattle and sheep, he shall pay him 8 GUR of grain a year. 264. If a herdsman, to whom oxen and sheep have been given for pasturing, has received his wages, whatever was agreed upon, and his heart is contented; if he has diminished the oxen, or the sheep has lessened the offspring, he shall give offspring and produce according to the words of his agreement. 265. If a herdsman, to whom oxen and sheep have been given for pas- turing, has deceived, has changed the price, or has given them for money; he shall be brought to judgment and he shall return to their owner oxen and gheep ten times that which he stole. 271. If anyone has hired oxen, a cart, and driver, he shall pay 180 KA of grain for one day. 278. If anyone has bought a man or woman slave and before the end of the month the bennu-sickness has fallen upon him, he shall return him to the seller, and the buyer shall take back the money which he paid. 279. If anyone has bought a man or woman slave and a complaint is made, the seller shall answer for the complaint. 282. If a slave has said to his master, "Thou art not my master," one shall bring him to judgment as his slave, and his master shall cut off his ear. APPENDIX B. THE TWELVE TABLES. TABLE I. THE SUMMONS BEFORE THE MAGISTRATE. 1. If the plaintiff summon a man to appear before the magistrate and he refuse to go, the plaintiff shall first call witnesses and arrest him. 2. If the defendant attempt evasion or flight, the plaintiff shall take him by force. 3. If the defendant be prevented by illness or old age, let him who summons him before the magistrate furnish a beast of burden, but he need not send a covered carriage for him unless he choose. 4. For a wealthy defendant only a wealthy man may go bail; any one who chooses may go bail for a poor citizen of the lowest class. 5. In case the contestants come to an agreement, the magistrate shall announce the fact. 6. In case they come to no agreement, they shall before noon enter the case in the comitium or forum. 8. To the party present in the afternoon the magistrate shall award the suit. 9. Sunset shall terminate the proceedings. 10. . . . sureties and sub-sureties. . . . TABLE II. JUDICIAL PROCEDURE. 2. A serious illness or a legal appointment with an alien . . should one of these occur to the judge, arbiter, or either party to the suit, the appointed trial must be postponed. 3. If the witnesses of either party fail to appear, that party shall go and serve a verbal notice at his door on three days. TABLE III. EXECUTION FOLLOWING CONFESSION OR JUDGMENT. 1. A debtor, either by confession or judgment, shall have thirty days grace. 2. At the expiration of this period the plaintiff shall serve a formal summons upon the defendant, and bring him before the magistrate. 3. If the debt be not paid or if no one becomes surety, the plaintiff shall him away, and bind him with shackles and fetters of not less than fifteen pounds weight, and heavier at his discretion. 4. If the debtor wish, he may live at his own expense; if not, he in 875 276 APPENDIX B. whose custody he may be shall furnish him a pound of meal a day, more at his discretion. 6. On the third market day the creditors, if there are several, shall divide the property. If one take more or less, no guilt shall attach to him. TABLE IV. PATERNAL RIGHTS. 3. If a father shall thrice sell his son, the son shall be free from the paternal authority. TABLE V. INHERITANCE AND TUTELAGE. 3. What has been appointed in regard to the property or tutelage shall be binding in law. 4. If a man die intestate, having no natural heirs, his property shall pass to the nearest agnate. 5. If there be no agnate, the gentiles shall succeed. 7. ... If one be hopelessly insane, his agnates and gentiles shall have authority over him and his property. . . in case there be none to take charge. 8. ... from that estate . . . into that estate. TABLE VI. OWNERSHIP AND POSSESSION. 1. Whenever a party shall negotiate a nexum or transfer by man- cipatio, according to the formal statement so let the law be. 5. Whoever in presence of the magistrates shall join issue by manuum consertio. . . . 7. A beam built into a house or vine-trellis shall not be removed. 9. When the vines have been pruned, until the grapes are removed. TABLE VII. LAW CONCERNING REAL PROPERTY. 5. If parties get into dispute about boundaries. . . . 7. They shall pave the way. If they do not pave the way with stones a man may drive where he pleases. 8. If water from rain gutters cause damage. . . . TABLE VIII. ON TORTS. 1. Whoever shall chant a magic spell. . . 2. If a man maim another, and does not compromise with him, there shall be retaliation in kind. 3. If with the fist or club a man break a bone of a freeman, the penalty shall be three hundred asses; if of a slave, one hundred and fifty asses. THE TWELVE TABLES. 277 4. If he does any injury to another, twenty-five asses; if he sing a satirical song let him be beaten. 5. . . . If he shall have inflicted a loss ... he shall make it good. 8. Whoever shall blight the crops of another by incantation . . . nor shalt thou win over to thyself another's grain. . . . 12. If a thief be caught stealing by night and he be slain, the homicide shall be lawful. 13. If in the daytime the thief defend himself with a weapon, one may kill him. 15. ... with a leather girdle about his naked body, and a platter in his hand. . . . 16. If a man contend at law about a theft not detected in the act . . . 21. If a patron cheat his client, he shall become infamous. 22. He who has been summoned as a witness or acts as libripens, and shall refuse to give his testimony, shall be accounted infamous, and shall be incapable of acting subsequently as witness. 24. If a weapon slip from a man's hand without his intention of hurling it ... TABLE IX. (No fragments of this table are extant.) TABLE X. SACRED LAW. 1. They shall not inter or burn a dead man within the city. 2. ... more than this a man shall not do . . . ; a man shall not smooth the wood for the funeral pyre with an axe. 4. Women shall not lacerate their faces, nor indulge in immoderate wailing for the dead. 5. They shall not collect the bones of a dead man for a second in- terment. 7. Whoever wins a crown, either in person or by his slaves or animals, or has received it for valor . . . 8. ... he shall not add gold . . . ; but gold used in joining the teeth . . . This may be burned or buried with the dead without incurring any penalty. TABLE XI. (No fragments of this table are extant.) TABLE XII. SUPPLEMENTARY LAWS. 2. If a slave has committed theft, or has done damage . . . 3. If either party shall have won a suit concerning property by foul means, at the discretion of the opponent . . . the magistrate shall fix the damage at twice the profits arising from the interim possession. APPENDIX C. MAGNA CHARTA. JOHN, by the grace of God king of England, lord of Ireland, duke of Nor- mandy and Aquitaine, and count of Anjou, to his archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, governores, officers, and to all bailiffs, and faithful subject, greeting. Know ye, that we, in the presence of God, and for the salvation of our soul, and the souls of our ancestors and heirs, and unto the honour of God and the advance- ment of Holy Church, and amendment of our Realm, by the advice of our venerable Fathers, STEPHEN, Archbishop of Canterbury, primate of all England, and cardinal of the Holy Roman Church, HENRY, Archbishop of Dublin, WILLIAM of London, PETER of Winchester, JOCELIN of Bath and Glastonbury, HUGH of Lincoln, WALTER of Worchester, WILLIAM of Coventry, BENEDICT of Rochester, Bishops; of Master PANDULF, Sub-Deacon and Familiar of our Lord the Pope, Brother AYMERIC, Master of the Knight-Templars in England; and of the Noble Persons, WILLIAM MARESCALL, Earl of Pembroke, WILLIAM, Earl of Salisbury, WILLIAM, Earl of Warren, WILLIAM, Earl of Arundel, ALAN de GALLOWAY, Constable of Scotland, WARIN FITZ GERALD, PETER FTTZ HERBERT, and HUBERT DE BURGH, Seneschal of Poitou, HUGH de NEVILLE, MATTHEW FITZ HERBERT, THOMAS BASSET, ALAN BASSET, PHILIP of ALBINEY, ROBERT de ROPPELL, JOHN MARE- SCHALL, JOHN FITZ HUGH, and others our liegemen, have, in the first place, granted to God, and by this our present Charter con- firmed, for us and our heirs forever: 1. That the Church of England shall be free, and have her whole rights, and her liberties inviolable; and we will have them BO observed, that it may appear thence, that the freedom of elections, which is reckoned chief and indispensable to the English Church, and which we granted and confirmed by our Charter, and obtained the confirmation of the same from our Lord the Pope Innocent III. before the discord between us and our barons, was granted of mere free will; which Charter we shall observe, and we do will it to be faithfully observed by our heirs forever. We also have granted to all the freedom of our kingdom, for us and for our heirs forever, all the underwritten liberties, to be hand and holden by them and their heirs, of us and our heirs forever. 2. If any of our earls, or barons, or other, who hold of us in chief by military service, shall die, and at the time of his death, his heir shall be of full age, and owes a relief, he shall have his inheritance by paying the ancient relief; that is to say, the heir or heirs of an earl, for a whole earldom, by a hundred pounds; the heir or heirs of a baron, for a whole barony, by a hundred pounds; the heir or heirs of a knight, for a whole knight's fee, by a 279 280 APPENDIX C. hundred shillings at most; and whoever oweth less shall give less, according to the ancient custom of fees. 3. But if the heir of any such shall be under age, and shall be in ward, when he comes of age, he shall have his inheritance without relief and without fine. 4. The keeper of the land of such an heir, who shall be under age, shall take of the land of the heir none but reasonable issues, reasonable customs, and reasonable services, and that without destruction and waste of his men and his goods; and if we commit the custody of any such lands to the sheriff, or any other who is answerable to us for the issues of the land, and he shall make destruction and waste of the lands which he hath in custody, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall answer for the issues to us, or to him to whom we shall assign them; and if we sell or give to anyone the custody of any such lands, and he therein make destruction or waste, he shall loose the same custody, which shall be committed to two lawful and discreet men of that fee, who shall in like manner answer to us as aforesaid. 5. Moreover the keeper, so long as he shall have the custody of the land, shall keep up the houses, parks, warrens, ponds, mills, and other things pertaining to the lands, out of the issues of the same land; and shall deliver to the heir, when he comes of full age, his whole land, stocked with ploughs, and carriages, according as the time of wainage shall require and the issues of the land can reasonably bear. 6. Heirs shall be married without disparagement, and so that be- fore matrimony shall be contracted those who are near in blood to the heir shall have notice. 7. A widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or her marriage portion or her inheritance which her husband and she held at the day of his death; and she may remain in the mansion house of her husband forty days after his death, within which term her dower shall be assigned to her. 8. No widow shall be distrained to marry again, so long as she has a mind to live without a husband; but yet she shall give security that she will not marry without our assent, if she holds of us; or without the con- sent of the lord of whom she holds, if she hold of another. 9. Neither we nor our bailiffs shall seize any land or rent for any debt so long as the chattels of the debtor are sufficient to pay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is sufficient for the payment of the debt; but if the principal debtor shall fail in the payment of the debt, not having wherewithal to pay it, then the sureties shall answer for the debt; and if they will they shall have the lands and rents of the debtor, until they shall be satisfied for the debt which they paid for him, unless the principal debtor can show himself acquitted thereof against the said sureties. 10. If anyone have borrowed anything of the Jews, more or less, and die before the debt be satisfied, there shall be no interest paid for that debt, so long as the heir is under age, of whomsoever he may hold; and if the MAGNA CHARTA. 281 debt fall into our hands we will only take the chattel mentioned in the deed. 11. And if anyone shall die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if the deceased left children under age, they shall have necessaries provided for them, according to the tenement of the deceased; and out of the residue the debt shall be paid, saving however the service due to the lords; and in like manner shall it be done touching debts due to others than the Jews. 12. No scutage or aid shall be imposed in our kingdom, unless by the general council of our kingdom; except for ransoming our person, making our eldest son a knight, and once for marrying our eldest daughter; and for these shall be paid only a reasonable aid. In like manner it shall be concerning the aids of the City of London. 13. And the City of London shall have all its ancient liberties and free customs, as well by land as by water; furthermore we will and grant that all other cities and boroughs, and towns and ports, shall have all their liberties and free customs. 14. And for holding the general council of the kingdom concerning the assessment of aids, except in the three cases aforesaid, and for the assessing of scutages, we shall cause to be summoned to the archbishops, bishops, abbots, earls, and greater barons of the realm, singly by our letters. And furthermore we shall cause to be summoned generally by our sheriffs and bailiffs, all others who hold of us in chief, for a certain day, that is to say, forty days before their meeting at least, and to a certain place; and in all letters of such summons we will declare the cause of such summons. And summons being thus made, the business of the day, shall proceed on the day appointed, according to the advice of such as shall be present, although all that were summoned come not. 15. We will not for the future grant to anyone the right to take aid of his own free tenants, unless to ransom his body, and to make his eldest son a knight and once to marry his eldest daughter; and for this there shall be only paid a reasonable aid. 16. No man shall be distrained to perform more service for a knight's fee, or other free tenement, than is due from thence. 17. Common pleas shall not follow our court, but shall be holden in some certain place. 18. Assizes of novel disseisin, and of mort d 'ancestor, and of darrien presentment, shall not be taken but in their proper countries, and after this manner: We, or, if we should be out of the realm, our chief justiciar, shall Bend two justiciaries through every county every four times a year, who, with four knights, chosen out of every shire by the people, shall hold the said assizes, in the count, on the day, and at the place appointed. 19. And if any matters cannot be determined on the day appointed for holding the assizes in each county, so many of the knights and freeholders as have been at the assizes aforesaid, shall stay to decide them as is necessary, according as there is more or less business. 20. A freeman shall not be amerced for a small offence, except accord- ing to the measure of the offence; and for a great crime according to the heinoueness of it, saving to him his contentment; and after the same manner 282 APPENDIX C. a merchant, saving to him his merchandise. And a villain shall be amerced after the same manner, saving to him his wainage, if he falls under our mercy; and none of the aforesaid amerciaments shall be assessed save upon the oath of honest men in the neighborhood. 21. Earls and barons shall not be amerced, but by their peers, and according to the degree of the offence. 22. No ecclesiastical person shall be amerced for his lay tenement, except according to the proportion of the others aforesaid, and not according to the value of his ecclesiastical benefice. 23. Neither a town nor any tenant shall be distrained to make bridges or banks unless anciently and of right they are bound to do it. 24. No sheriff, constable, coroner, or other of our bailiffs, shall hold pleas of the crown. 25. All counties, hundreds, wapentakes, and tithings, shall stand at the old rents, without any increase, except in our demesne manors. 26. If anyone holding of us a lay-fee shall die, and the sheriff, or our bailiffs, can show our letters patent, containing our summons for the debt which the dead man did owe to us, it shall be lawful for the sheriff or our bailiff to attach and inroll the chattels of the dead, found upon his layfee, to the value of the debt, by the view of lawful men, so, however, that nothing be removed until our whole clear debt be paid; and the rest shall be left to the executors to fulfil the testament of the dead, and if there be nothing due from him to us, all the chattels shall go to the use prescribed by the dead, saving to his wife and children their reasonable shares. 27. If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest relations and friends, by view of the church; saving to everyone the debts which the deceased owed to him. 28. No constable or bailiff of ours shall take corn or other chattels of any man, unless he presently give him money for it, or hath respite of payment by the good-will of the seller. 29. No constable shall distrain any knight to give money for castle ward, if he himself will do it in his person, or by another able man in case he cannot do it through any reasonable cause. And if we lead him, or send him in any army, he shall be free from such ward for the time he shall be in the army by our command. 30. No sheriff or bailiff of ours, or any other, shall take horses or carts of any freeman for carriage, but by the good-will of the said freeman. 31. Neither shall we nor our bailiffs take any man's timber for our castles or other uses, unless by the consent of the owner of the timber. 32. We will retain the lands of those convicted of felony only one year and a day, and then they shall be delivered to the lord of the fee. 33. All weirs for the time to come shall be done away with in the rivers of the Thames and throughout all England, except upon the sea coast. 34. The writ which is called praecipe, for the future, shall not be served upon anyone, of any tenement, whereby a freeman may lose his court. 35. There shall be one measure of wine and one of ale through our whole realm; and one measure of corn, that is to say, the London quarter; and one breadth of dyed cloth, and russets, and haberjects, that is to say, two ells within the lists; and it shall be of weights as it is of measures. MAGNA CHARTA. 283 36. Nothing from henceforth shall be given or taken for a writ of inquisition of life or limb, but it shall be granted freely, and not denied. 37. If any do hold of us by fee-farm, or by socage, or by burgage, and he hold also lands of any other by knight's service, we will not have the custody of the heir or land, which is holden of another man's fee by reason of that fee-farm, socage, or burgage; neither will we have the custody of such fee-farm, socage, or burgage; except knight's service was due to us out of the same fee-farm. We will not have the custody of an heir, nor of any land which he holds of another by knight's service, by reason of any petty ser- jeanty that holds of us, by the service of paying a knife, an arrow, or the like. 38. No bailiff from henceforth shall put any man to his law upon his own bare assertion, without credible witnesses to prove it. 39. No freeman shall be taken or imprisoned, or disseised, or out- lawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, save by the lawful judgment of his peers, or by the law of the land. 40. We will sell to no man, we will not deny to any man, either justice or right. 41. All merchants shall have safe and secure conduct, to go out of, and to come into England, and to stay there, and to pass as well by land as by water, for the purpose of buying and selling according to the ancient and allowed customs, without any evil tolls; except in time of war, or when they are of any nation at war with us. And if there be found any such in our land, in the beginning of the war, they shall be held, without damage to their bodies or goods, until it be known unto us or of our chief justiciar, how our merchants be treated in the nation at war with us; and if ours be safe there, the others shall be safe in our dominions. 42. It shall be lawful, henceforth, for anyone to go out of our king- dom, and return safely and securely, by land or by water, saving his allegiance to us; unless in time of war, for some short space, for the common benefit of the realm; but prisoners and outlaws, according to the law of the land, shall be except ed, and people at war with us, and merchants who shall be in such condition as is above mentioned. 43. If any man hold of any escheat, as of the honour of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats which be in our hands, and are of baronies, and shall die, his heir shall give no other relief, and per- form no other service to us, than he would to the baron, if it were in the baron's hand; we will hold it after the same manner as the baron held it. 44. Those men who dwelt without the forest, from henceforth shall not come before our justiciaries of the forest, upon common summons, but such as are impleaded, or are pledges for any that are attached for something concerning the forest. 45. We will not make any justices, constables, sheriffs, or bailiffs, unless they are such as know the law of the realm and mean duly to observe it. 46 All barons who have founded abbeys, and have the kings of England's charters of advowson, or the ancient tenure thereof, shall have the keeping of them, when vacant, as they ought to have. 47. All forests that have been forests in our time, shall forthwith 284 APPENDIX C. be disforested; and the same shall be done with the river banks that have been fenced in by us in our time. 48. All evil customs concerning forests, warrens, foresters, and warreners, sheriffs and their officers, rivers, and their keepers, shall forthwith be inquired into in each county, by twelve sworn knights of the same shire, chosen by creditable persons of the same county; and within forty days after the said inquest, be utterly abolished, so as never to be restored; so that we are first acquainted therewith, or our justiciar, if we should not be in England. 49. We will immediately give up all hostages and charters delivered unto us by our English subjects, as securities for their keeping the peace, and yielding us faithful service. 50. We will entirely remove from our bailiwicks the relations of Gerard de Atheyes, so that for the future they shall have no bailiwick in England; we will also remove Engelard de Cygnes, Andrew, P. Peter, and Ryon de Chanceles; Gyon de Cygnes, Geoffrey de Martyn and his brothers; Philip Mark and his brothers, and his nephew, Geoffrey, and their whole retinue. 51. As soon as peace is restored, we will send out of the kingdom all foreign soldiers, cross-bowmen, and stipendiaries, who are come with horses and arms to the prejudice of our people. 52. If anyone has been dispossessed or deprived by us, without the legal judgment of his peers, of his lands, castles, liberties, or right, we will forthwith restore them to him ; and if any dispute arise upon this head, it shall be decided by the five-and-twenty barons hereafter mentioned, for the preservation of the peace. As for all those things of which any person has, without the legal judgment of his peers, been dispossessed or deprived, either by King Henry our father, or our brother King Richard, and which we have in our hands, or are possessed by others, and which we are bound to warrant and make good, we shall have a respite till the term usually allowed the crusaders; excepting those things about which there is a plea depending or whereof an inquest hath been made, by our order, before we undertook the crusade, but when we return from our pilgrimage, or if perchance we tarry at home and do not make our pilgrimage, we will immediately cause full justice to be administered therein. 53. The same respite we shall have (and in the same manner about administering justice, disafforesting the forests, or letting them continue) for disafforesting the forest, which Henry our father, and our brother Richard have afforested; and for the keeping of the lands which are in another's fee, in the same manner as we have hitherto enjoyed those wardships, by reason of a fee held by us by knight's; and for the abbeys founded in any other fee than our own, in which the lord of the fee says he has a right; and when we return from our pilgrimage, or if we tarry at home, and do not make our pilgrimage, we will immediately do full justice to all the complainants in this behalf. 54. No man shall be taken or imprisoned upon the appeal of a woman, for the death of any other than her husband. 55. All unjust and illegal fines made by us, and all amerciamenta MAGNA CHARTA. 285 imposed unjustly and contrary to the law of the land, shall be entirely given up, or else be left to the decision of the five-and-twenty barons hereafter mentioned as sureties of the peace, or of the major part of them, together with the aforesaid Stephen, archbishop of Canterbury, if he can be present and others whom he shall think fit to associate with him; and if he cannot be present, the business shall notwithstanding go on without him; but so that if one or more of the aforesaid five-and-twenty barons be plaintiffs in the same cause, they shall be set aside as to what concerns this particular affair, and others shall be chosen in their room, out of the said five-and-twenty, and sworn by the rest to decide the matter. 66. If we have disseised or dispossessed the Welsh, of any lands, liberties, or other things, without the legal judgment of their peers, either in England or in Wales, they shall be immediately restored to them; and if any dispute arise upon this head, the matter shall be determined in the March by the judgment of their peers; for tenements in England according to the law of England, for tenements in Wales according to the law of Wales, for tenements of the March according to the law of the March; the same shall the Welsh do to us and our subjects. 57. As for all those things of which a Welshman hath, without the legal judgment of his peers, been disseised or deprived of by King Henry our father, or our brother King Richard, and which we either have in our hands, or others are possessed of, and for which we are obliged to give a guarantee, we shall have a respite till the time generally allowed the crusaders; excepting those things about which a suit is depending, or whereof an in- quest has been made by our order, before we undertook the crusade; but when we return, or if we stay at home without performing our pilgrimage, we will immediately do them full justice, according to the laws of the Welsh and of the parts before mentioned. 58. We will without delay dismiss the son of Llewelyn, and all the Welsh hostages, and release them from the engagements they have entered into with us for the preservation of the peace. 59. We will treat with Alexander, King of the Scots, concerning the restoring his sisters and hostages, and his right and liberties, in the same form and manner as we shall do to the rest of our barons of England; unless by the charters which we have from his father, William, late King of the Scots, it ought to be otherwise; but this shall be left to the determination of his peers in our court. 60. All the aforesaid customs and liberties, which we have decreed to be observed in our kingdom, as far as it belongs to us, towards our people of our kindgom, the clergy as well as laity shall observe, as far as they are concerned, towards their own dependents. 61. And whereas, for the honour of God and the amendment of our kingdom, and for the better quieting the discord that has arisen between us and our barons, we have granted all these things aforesaid; willing to render them firm and lasting, we do give and grant our subjects the underwritten security, namely, that the barons may choose five-and-twenty barons of the kingdom, whom they think worthy; who shall take care, with all their might, to hold and observe, and cause to be observed, the peace and liberties we 286 APPENDIX C. have granted them, and by this our present charter confirmed; so that if we, our justiciar, our bailiffs, or any of our officers, shall in any circum- stance fail in the performance of them, towards any person, or shall break through any of these articles of peace and security, and the offence be notified to four barons chosen out of the five-and-twenty before mentioned, the said four barons shall repair to us, or our justiciar, if we are out of the realm, and, laying open the grievance, shall petition to have it redressed without delay; and if it be not redressed by us, or if we should chance to be out of the realm, if it should not be redressed by our justiciar, within forty days, reckoning from the time it has been notified to us, or to our justiciar (if we should be out of the realm), the four barons aforesaid shall lay the cause before the rest of the five-and-twenty barons; and the said five-and-twenty barons, together with the cummunity of the whole kingdom, shall distrain and dis- tress us in all possible ways, by seizing our castles, lands, possessions, and in any other manner they can, till the greivance is redressed according to their pleasure; saving harmless our own person, and the persons of our queen and children; and when it is redressed, they shall obey us as before. And any person whatsoever in the kindgom may swear that he will obey the orders of the five-and-twenty barons aforesaid, in the execution of the premises, and will distress us, jointly with them, to the utmost of his power; and we give public and free liberty to anyone that shall please to swear to this, and never will hinder any person from taking the same oath. 62. As for all those of our subjects who will not, of their own accord, swear to join the five-and-twenty barons in distraining and distressing us, we will issue orders to make them take the same oath as aforesaid, And if any one of the five-and-twenty barons dies, or goes out of the kingdom, or is hindered any other way from carrying the things aforesaid into execu- tion, the rest of the said five-and-twenty barons may choose another in his room, at their discretion, who shall be sworn in like manner as the rest. In all things that are committed to the execution of these five-and-twenty barons, if, when they are all assembled together, they should happen to dis- agree about any matter, and some of them, when summoned, will not, or cannot come, whatever is agreed upon, or enjoined, by the major part of those that are present, shall be reputed as firm and valid as if all the five-and-twenty had given their consent; and the aforesaid five-and-twenty shall swear that all the premises they shall faithfully observe, and cause with all their power to be observed. And we will not, by ourselves, or by any other, procure anything whereby any of these concessions and liberties may be revoked or lessened; and if any such thing be obtained, let it be null and void; neither shall we ever make use of it, either by ourselves or any other. And all the ill- will, indignations, and rancours that have arisen between us and our subjects, of the clergy and laity, from the first breaking out of the dissensions between us, we do fully remit and forgive; more over all trespassess occasioned by the said dissensions, from Easter in the fifteenth year of our reign, till the restora- tion of peace and tranquillity, we hereby entirely remit to all, both clergy and laity, and as far as in us lies do fully forgive. We have, moreover, caused to be made for them the letters patent testimonial of Stephen, lord archbishop of Canterbury, Henry, lord archbishop of Dublin, and the bishops aforesaid, as also of Master Pandulf , for the security and concessions aforesaid. MAGNA CHARTA. 287 63. Wherefore we will and firmly enjoin, that the Church of England be free, and that all the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, truly and peaceably, freely and quietly, fully and wholly to themselves and their heirs, of us and our heirs, in all things and places, forever, as is aforesaid. It is also sworn, as well on our part as on the part of the barons, that all the things aforesaid shall be observed in good faith and without evil intent. Given under our hand, in the presence of the witnesses above named, and many others, in the meadow called Rumingmeade, between Windsor and Staines, the 15th day of June, in the 17th year of our reign. APPENDIX D. PETITION OF RIGHT. (1628 A. D.) THE PETITION EXHIBITED TO HIS MAJESTY BY THE LORDS SPIRITUAL AND TEMPORAL AND COMMONS. IN THIS PRESENT PARLIAMENT ASSEMBLED, CONCERNING DIVERS RIGHTS AND LIBERTIES OF THE SUBJECTS, WITH THE KING'S MAJESTY'S ROYAL ANSWER THEREUNTO IN FULL PARLIAMENT. To the King's Most Excellent Majesty. Humbly shew unto our Sovereign Lord the King, the Lords spiritual and temporal, and Commons in Parliament assembled, that whereas it is declared and enacted be a statute made in the time of the reign of King Edward I., commonly called 'Statutum de tallagio non concedendo,' that no tallage or aid shall be laid or levied by the King or his heirs in this realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of the Commonalty of this realm; and by authority of Parliament holden in the five-and-twentieth year of the reign of King Edward III., it is declared and enacted, that from henceforth no person shall be compelled to make any loans to the King against his will, because such loans were against reason and the franchise of the land ; and by other laws of this realm it is provided, that none should be charged by any charge or imposition called a benevolence, nor by such like charge; by which statutes before mentioned and other the good laws and statutes of this realm, your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge not set by common consent in Parliament. II. Yet nevertheless, of late, divers commissions directed to sundry commissioners in several counties, with instructions, have issued; by means whereof your people have been in divers places assembled, and required to lend certain sums of money unto your Majesty, and many of them, upon their refusal so to do, have had an oath administered unto them not war- rantable by the laws or statutes of this realm, and have been constrained to become bound to make appearance and give utterance before your Privy Council and in other places, and others of them have been therefore im- prisoned, confined, and sundry other ways molested and disquieted; and divers other charges have been laid and levied upon your people in several counties by lord lieutenants, deputy lieutenants, commissioners for musters, justices of peace and others, by command or direction of your Majesty, or your Privy Council, against the laws and free customs of the realm. III. And whereas also by the statute called 'The Great Charter of the Liberties of England,' it is declared and enacted, that no freeman may be taken or imprisoned, or be disseised of his freehold or liberties, or his free Vol. 119 289 290 APPENDIX D. customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land. IV. And in the eighth-and-twentieth year of the reign of King Edward III, it was declared and enacted by authority of Parliament, that no man, of what estate or condition that he be, should be put out of his land or tene- ments, not taken, nor imprisoned, nor disherited, nor put to death without being brought to answer by due process of law. V. Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause shewed; and when for their deliverance they were brought before justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detamer, no cause w r as certified, but that they were detained by your Majesty's special com- mand, signified by the lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might answer according to law. VI. And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants, against their wills, have been compelled to receive them into their houses, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people. VII. And whereas also by authority of Parliament, in the five-and- twentieth year of the reign of King Edward III., it is declared and enacted that no man should be forejudged of life or limb against the form of the Great Charter and the law of the land; and by the said Great Charter and other the laws and statutes of this your realm, no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the same realm, or by Acts of Parliament; and whereas no offender of what kind soever is exempted from the proceedings to be used, and the punishments to be inflicted by the laws and statutes of this your realm; nevertheless, of late times, divers commissions under your Majesty's great seal have issued forth, by which certain persons have been assigned and appointed commis- sioners with power and authority to proceed within the land, according to the justice of marshal law, against such soldiers or mariners, or other dissolute persons joining with them, as should committ any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, and by such summary course or other as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial. VIII. By pretext where of some of your Majesty's subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other, ought to have been judged and executed. IX. And also sundry grievous offenders, by colour thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers PETITION OF RIGHT. 291 of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes, upon pretence that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid, which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm. X. They do therefore humbly pray your most excellent Majesty that no man hereafter be compelled to make or yield any gift, loan, benevol- ence, tax, or such like charge, without common consent, by Act of Parliament; and that none be called to make answer, or to take such oath, or to give attendance, or be confined, or otherwise molested, or disquieted concerning the same, or for refusal thereof; and that no freeman, in any BUch manner as is before mentioned, be imprisoned or detained; and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burthened in time to come; and that the aforesaid com- missions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land. XI. All of which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare that the awards, doings, and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom. Qua quidem petitione lectd et plenius intellectd per dictum dominum regem taliter est responsum in pleno parliamento, viz., Soit droit fait comme est desire". APPENDIX E. THE BILL OF RIGHTS. (1689 A. D.) AN ACT FOR DECLARING THE RIGHTS AND LIBERTIES OF THE SUBJECT, AND SETTLING THE SUCCESSION OF THE CROWN. Whereas the Lords Spiritual and Temporal, and Commons, assembled at Westminster, lawfully, fully, and freely representing all the estates of the people of this realm, did, upon the thirteenth day of February, in the year of our Lord one thousand six hundred eighty-eight, present unto their Majes- ties, then called and known by the names and styles of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain declaration in writing, made by the said Lords and Commons, in the words following: viz, Whereas the late King, James II, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavor to sub- vert and extirpate the Protestant religion, and the laws and liberties of this kingdom: 1. By assuming and exercising a power of dispensing with and sus- pending of laws, and the execution of laws, without consent of Parliament. 2. By committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the said assumed power. 3. By issuing and causing to be executed a commission under the Great Seal, for erecting a court, called the Court of Commissioners for Ecclesi- astical Causes. 4. By levying money for and to the use of the Crown, by pretence of prerogative, for other time, and in other manner than the same was granted by Parliament. 5. By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering soldiers contrary to law. 6. By causing several good subjects, being Protestants, to be dis- armed at the same time when Papists were both armed and employed, con- trary to law. 7. By violating the freedom of election of members to serve in Parlia- ment. 8. By prosecutions in the Court of King's Bench, for matters and causes cognizable only in Parliament; and by divers other arbitrary and illegal courses. 9. And whereas of late years, partial, corrupt, and unqualified persons have been returned and served on juries in trials, and particularly divers juror intrials for high treason, which were not freeholders. 10. And excessive bail hath been required of persons committed 293 294 APPENDIX E. in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. 11. And excessive fines have been imposed; and illegal and cruel punishments inflicted. 12. And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons upon whom the same were to be levied. All which are utterly and directly contrary to the known laws and statutes, and the freedom of this realm. And whereas the said late King James II, having abdicated the govern- ment, and the throne being thereby vacant, his Highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of de- livering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal and divers principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal, being Protestants, and other letters to the several counties, cities, universities, boroughs and cinque-ports, for the choosing of such persons to represent them, as were of right to be sent to Parliament, to meet and sit at Westminster upon the two-and-twentieth day of January, in this year one thousand six hundred eighty and eight, in order to such an establishment, as that their religion, laws and liberties might not be in danger of being subverted; upon which letters, elections have been accordingly made. And thereupon the said Lords Spiritual and Temporal, and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representation of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare: 1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Parliament is illegal. 2. That the pretended power of dispensing with laws, or the execution of laws by regal authority, as it hath been assumed, and exercised of late, is illegal. 3. That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious. 4. That levying money for or to the use of the Crown, by pretence and prerogative without grant of Parliament, for longer time or in other manner than the same is or shall be granted, is illegal. 5. That it is the right of the subjects to petition the King, and all com- mitments and prosecutions for such petitioning are illegal. 6. That the raising or keeping a standing army within the Kingdom in time of peace, unless, it be with the consent of Parliament is against law. 7. That the subjects which are Protestants, may have arms for their defence suitable to their conditions, and as allowed by law. 8. That elections of members of Parliament ought to be free. 9. That the freedom of speech, and debates or proceedings in Parlia- ment, ought not to be impeached or questioned in any court or place out of Parliament. THE BILL OF RIGHTS. 295 10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted. 11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders. 12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void. 13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, Parliaments ought to be held fre- quently. And they do claim, demand, and insist upon all and singular the pre- mises, as their undoubted rights and liberties, and that no declaration, judg- ments, doings or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example. To which demand of their rights, they are particularly encouraged by the declaration of his Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein. Having therefore an entire confidence that his said Highness the Prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have been here asserted, and from all other attempts upon their religion, rights, and liberties: II. The said Lords Spiritual and Temporal, and Commons, assembled at Westminster, do resolve that William and Mary, Prince and Princess of Orange be, and be declared, King and Queen of England, France and Ireland, and the dominions thereunto belonging, to hold the Crown and royal dignity of the said kingdoms and dominions to them the said Prince and Princess during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said Prince of Orange, in the names of the said Prince and Princess, during their joint lives; and after their deceases, the said Crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said Princess; and for default of such issue to the Princess Anne of Denmark, and the heirs of her body; and for the default of such issue to the heirs of the body of the said Prince of Orange. And the Lords Spiritual and Temporal, and Commons, do pray the said Prince and Princess to accept the same accordingly. III. And that the oaths hereafter mentioned be taken by all persons of whom the oaths of allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated. I, A. B., do sincerely promise and swear, That I will be faithful and bear true allegiance to their Majesties King William and Queen Mary: So help me God. I, A. B., do swear, That I do from my heart abhor, detest, and adjure as impious and heretical, that damnable doctrine and position, that Princes excommunicated or deprived by the Pope, or any authority of the See of Rome, may be deposed or murdered by their subjects, or any other whatso- ever. And I do declare, that no foreign prince, person, prelate, state, or potentate hath, or ought to have, any jurisdiction, power, superiority, pre- eminence, or authority ecclesiastical or spiritual, within this realm: So help me God. 296 APPENDIX E. IV. Upon which their said Majesties did accept the crown and royal dignity of the kingdoms of England, France, and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration. V. And thereupon their Majesties were pleased, that the said Lords Spiritual and Temporal, and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties' royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted; to which the said Lords Spiritual and Temporal, and Commons, did agree and proceed to act accordingly. VI. Now in pursuance of the premises, the said Lords Spiritual and Temporal, and Commons, in Parliament assembled, for the ratifying, confirm- ing, and establishing the said declaration, and the articles, clauses, matters, and things therein contained, by the force of a law made in due form by authority of Parliament, do pray that it may be declared and enacted, That all and singular the rights and liberties asserted and claimed in the said declaration, are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every the particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said declaration; and all officers, and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come. VII. And the said Lords Spiritual and Temporal, and Commons, seriously considering how it hath pleased Almighty God, in his marvellous providence, and merciful goodness to this nation, to provide and preserve their said Majesties' royal persons most happily to reign over us upon the throne of their ancestors, for which they render unto Him from the bottom of their hearts their humblest thanks, and praises, do truly, firmly, assuredly, and in the sincerity of their hearts, think, and do hereby recognize, acknowl- edge and declare, that King James II, having abdicated the government, and their Majesties having accepted the Crown and royal dignity as aforesaid, their said Majesties did become, were, are, and of sovereign right ought to be, by the laws of this realm, our sovereign liege lord and lady, King and Queen of England, France, and Ireland, and the dominions thereunto belonging in and to whose princely persons the royal State, Crown, and dignity of the said realms, with all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities to the same belonging and appertaining, are most fully, rightfully, and entirely invested and incorporated, united and annexed. VIII. And for preventing all questions and divisions in this realm, by reason of any pretended titles to the Crown, and for preserving a certainty in the succession thereof, in and upon which the unity, peace, and tran- quillity, and safety of this nation doth, under God, wholly consist and depend, the said Lords Spiritual and Temporal, and Commons, do beseech their Majesties that it may be enacted, established and declared, that the Crown and legal government of the said kingdoms and dominions, with all and singular the premises thereunto belonging and appertaining, shall be and continued to their said Majesties, and the survivor of the other, during their THE BILL OF RIGHTS. 297 lives, and the life of the survivor of them. And that the entire, perfect, and full exercise of the regal power and government be only in, and executed by, his Majesty, in the names of both their Majesties during their joint lives; and after their deceases the said Crown and premises shall be and remain to the heirs of the body of her Majesty; and for default of such issue, to her Royal Highness the Princess Anne of Denmark, and the heirs of her body; and for default of such issue, to the heirs of the body of his said Majesty: And thereunto the said Lords Spiritual and Temporal, and Commons do, hi the name of all the people aforesaid, most humbly and faithfully submit them- selves, their heirs and posterities for ever; and do faithfully promise, That they will stand to, maintain, and defend their said Majesties, and also the limitation and succession of the Crown herein specified and contained, to the utmost of their powers, with their lives, and estate, against all persons what- soever that shall attempt anything to the contrary. IX. And Whereas it hath been found by experience, that it is incon- sistent with the safety and welfare of this Protestant kingdom, to be governed by a Popish Prince, or by any King or Queen marrying Papist, the said Lords Spiritual and Temporal, and Commons, do further pray that it may be enacted, That all and every persons that is, are, or shall be reconciled to, or shall hold communion with, the See or Church of Rome, or shall profess the Popish religion, or shall marry a Papist, shall be excluded, and be forever incapable to inherit, possess, or enjoy the Crown and government of this realm, and Ireland, and the dominions thereunto belonging, or any part of the same, or to have, use, or exercise any regal power, authority, or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said Crown and government shall from time to time descend to, and be enjoyed by, such person or persons, being Protestants, as should have inherited and enjoyed the same, in case the said person or persons so reconciled, holding communion, or pro- fessing, or marrying as aforesaid, were naturally dead. APPENDIX F. DECLARATION OF INDEPENDENCE. In Congress, July 4, 1776. The unanimous declaration of the thirteen United States of America. When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitles them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Govern- ment becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. He has refused his Assent to Laws, the must wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of Repre- sentation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncom- 209 300 APPENDIX F. fortable, and distant from the depository of their public Records, for the Bole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within. He has endeavored to prevent the population of these States; for that purpose obstructing the Laws of Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the Consent of our legislature. He has affected to render the Military independent of and superior to the Civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the inhabitants of these States: For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent: For depriving us in many cases of the benefits of Trial by jury: For transporting us beyond Seas to be tried for pretended offences: For abolishing the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for intro- ducing the same absolute rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large Armies of foreign Mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. DECLARATION OF INDEPENDENCE. 301 He has constrained our fellow-Citizens taken captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people. Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevita- bly interrupt our connections and correspondence. They, too, have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, Therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right, ought to be Free and Independent States; that they are absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved ; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, We mutually pledge to each other our Lives, our Fortunes, and our sacred Honor. (The foergoing declaration was, by order of Congress, engrossed, and signed by the following members.) JOHN HANCOCK. New Hampshire Josiah Bartlett, Wm. Whipple, Matthew Thornton. Massachusetts Bay. Saml. Adams, John Adams, Robt. Treat Paine, Elbridge Gerry. Rhode Island, etc. Step. Hopkins, William Ellery. Connecticut Roger Sherman, Sam'el Huntington, Wm. Williams, Oliver Wolcott. New York Wm. Floyd, Phil. Livingston, Frans. Lewis, Lewis Morris. New Jersey Richd. Stockton, Jno. Witherspoon, Fras. Hopkinson, John Hart, Abra. Clark. Pennsylvania Robt. Morris, Benjamin Rush, Benja. Franklin, John Morton, Geo. Clymer, Jas. Smith, Geo. Taylor, James Wilson, Geo. Ross. Delaware Caesar Rodney, Geo. Read, Theo. M'Kean. 302 APPENDIX F. Maryland Samuel Chase, Wm. Paca, Thos. Stone, Charles Carroll of Carrolton. Virginia George Wythe, Richard Henry Lee, Th. Jefferson, Benja. Harrison, Thos. Nelson, Jr., Francis Lightfoot Lee, Carter Braxton. North Carolina Wm. Hooper, Joseph Hewes, John Penn. South Carolina Edward Rutledge, Thos. Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton. Georgia Button Gwinnett, Lyman Hall, Geo. Walton. APPENDIX G. ARTICLES OF CONFEDERATION, 1781-1788. Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. ARTICLE I. The style of this confederacy shall be, "The United States of America." ART. II. Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in Congress assembled. ART. III. The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence what- ever. ART. IV. The better to secure and perpetuate mutual friendship and inter- course among the people of the different States in this Union, the free inhab- itants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the pri- vileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively; provided that such restrictions shall not extend so far as to prevent the removal of property im- ported into any State, to any other State of which the owner is an inhabitant; provided, also, that no imposition, duties, or restriction, shall be laid by any State on the property of the United States, or either of them. If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the governor or executive power of the State from which he fled, be delivered up, and removed to the State having jurisdiction of his offence. Full faith and credit shall be given, in each of these States, to the records, acts, and judicial proceedings of the courts and magistrates of every other State. ART. V. For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year. 303 304 APPENDIX G. No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years, in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees, or emolument of any kind. Each State shall maintain its own delegates in any meeting of the States, and while they act as members of the committee of the States. In determining questions in the United States, in Congress assembled, each State shall have one vote. Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress; and the members of Con- gress shall be protected in their persons from arrests and imprisonments during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace. ART. VI. No State, without the consent of the United States, in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty, with any king, prince, or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state; nor shall the United States, in Congress assembled, or any of them, grant any title of nobility. No two or more States shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue. No States shall lay any imposts or duties which may interfere with any stipulations in treaties entered into by the United States, in Congress assem- bled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts of France and Spain. No vessels of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States, in Con- gress assembled, for the defence of such State or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number only as, in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage. No State shall engage in any war without the consent of the United States, in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States, in Congress assembled, can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war ARTICLES OF CONFEDERATION. 305 by the United States, in Congress assembled, and then only against the king- dom or state, and the subjects thereof against which war has been so declared, and under such regulations as shall be established by the United States, in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States, in Congress assembled, shall determine otherwise. ART. VII. When land forces are raised by any State for the common defence, all officers of or under the rank of colonel shall be appointed by the legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment. ART. VIII. All charges of war, and all other expenses that shall be in- curred for the common defence or general welfare, and allowed by the United States, in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to, or surveyed for, any person, as such land and the buildings and improvements thereon shall be estimated accord- ing to such mode as the United States, in Congress assembled, shall, from time to time, direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States, within the time agreed upon by the United States, in Congress assembled. ART. IX. The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth Article; of sending and receiving ambassadors; entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be re- strained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever; of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts for receiving and determining finally appeals in all cases of captures; provided that no member of Congress shall be appointed as judge of any of the said courts. The United States, in Congress assembled, shall also be the last resort on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: Whenever the legislative or executive authority, or lawful agent of any State in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appear- ance of the parties by their lawful agents, who shall then be directed to Vol. 120 306 APPENDIX G. appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question; but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the peti- tioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be com- missioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determina- tion; and if either party shall neglect to attend at the day appointed, without showing reasons which Congress shall judge sufficient, or being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless pro- ceed to pronounce sentence or judgment, which shall in like manner be final and decisive; the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned; provided, that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question, accord- ing to the best of his judgment, without favour, affection, or hope of reward." Provided, also, that no State shall be deprived of territory for the benefit of the United States. All controversies concerning the private right of soil claimed under differ- ent grants of two or more States, whose jurisdictions, as they may respect such lands, and the States which passed such grants, are adjusted, the said grants or either of them being at the same time claimed to have originated ante- cedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States. The United States, in Congress assembled, shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States; fixing the standard of weights and measures throughout the United States; regulating the trade and managing all affairs with the Indians not members of any of the States; provided that the legislative right of any State, within its own limits, be not infringed or violated; establishing and regulating post-offices from one State to another throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office; appointing all officers of the land forces in the service of the United States, excepting regimental officers; appointing all the officers of the naval forces, and commissioning all officers whatever in the service of ARTICLES OF CONFEDERATION. 307 the United States; making rules for the government and regulation of the said land and naval forces, and directing their operations. The United States, in Congress assembled, shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated "A Committee of the States," and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction; to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses; to borrow money or emit bills on the credit of the United States, transmitting every half year to the respective States an account of the sums of money so borrowed or emitted; to build and equip a navy; to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State, which requisition shall be binding; and thereupon the legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like manner at the expense of the United States; and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled; but if the United States, in Congress assembled, shall, on consideration of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the legislature of such State shall judge that such extra number can not be safely spared out of the same, in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared, and the officers and men so clothed, armed, and equipped shall march to the place appointed and within the time agreed on by the United States, in Congress assembled. The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same, nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled. The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations as in their judg- 308 APPENDIX G. ment require secrecy; and the yeas and nays of the delegates of each State on any question, shall be entered on the journal, when ft is desired by any delegate; and the delegates of a State, or any of them, at his or their request, shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States. ART. X. The committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States, in Congress assembled, by the consent of nine States, shall, from time to time, think expedient to vest them with; pro- vided that no power be delegated to the said committee, for the exercise of which, by the Articles of Confederation, the voice of nine States, in the Congress of the United States assembled, is requisite. ART. XI. Canada acceding to this Confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same unless such admission be agreed to by nine States. ART. XII. All bills of credit emitted, moneys borrowed, and debts con- tracted by or under the authority of Congress, before the assembling of the United States, in pursuance of the present Confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged. ART. XIII. Every State shall abide by the determinations of the United States, in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. And whereas it hath pleased the great Governor of the world to incline the hearts of the legislatures we respectively represent in Congress to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union, Know ye, that we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective con- stituents, that they shall abide by the determinations of the United States, in Congress assembled, on all questions which by the said Confederation are submitted to them; and that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be per- petual. In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia, in the State of Pennsylvania, the ninth day of July, in the year of our Lord 1778, and in the third year of the Independence of America. [These Articles were not ratified by all the States until 1st March 1781, when the delegates of Maryland, the latest in ratifying, signed for her.] APPENDIX H. THE VIRGINIA PLAN. 1. Resolved, that the articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, common defense, security of liberty, and general warfare. 2. Resolved, therefore, that the rights of suffrage in the National Legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases. 3. Resolved, that the National Legislature ought to consist of two branches. 4. Resolved, that the members of the first branch of the National Legis- lature ought to be elected by the people of the several states every for the term of ; to be of the age of years at least; to receive liberal stipends by which they may be compensated for the devotion of their time to the public service; to be ineligible to any office established by a particular state, or under the authority of the United States, except those peculiarly belong to the functions of the first branch, during the term of service, and for the space of after its expiration; to be incapable of re-election for the space of after the expiration of their term of service, and to be subject to recall. 5. Resolved, that the members of the second branch of the national Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual legislatures, to be of the age of years at least; to hold their offices for a term sufficient to ensure their inde- pendency; to receive liberal stipend, by which they may be compensated for the devotion of their time to the public service; and to be ineligible to any office established by a particular state, or under the authority of the United States, except those peculiarly belonging to the functions of the second branch, during the term of service; and for the space of after the expiration thereof. 6. Resolved, that each branch ought to possess the right of originating acts; that the National Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation, and moreover to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several states con- travening, in the opinion of the National Legislature, the Articles of Union or any treaty subsisting under the authority of the Union; and to call forth the force of the Union against any member of the Union failing to fulfil its duty under the Articles thereof. 7. Resolved, that a National Executive be instituted; to be chosen by the National Legislature for the term of ; to receive punctually, 300 310 APPENDIX H. at stated times, a fixed compensation for the services rendered, in which no increase nor diminution shall be made, so as to affect the magistracy existing at the time of increase or diminution; and to be ineligible a second time; and that, besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in Congress by the Confederation. 8. Resolved, that the Executive, and a convenient number of the na- tional Judiciary, ought to compose a Council of Revision, with authority to examine every act of the National Legislature, before it shall operate, and every act of a particular Legislature before a negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the act of the National Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch. 9. Resolved, that a National Judiciary be established; to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature; to hold their offices during good behaviour, and to receive punctually, at stated times, fixed compensation for their services, in which no increase or diminution shall be made, so as to affect the persons actually in office at the same time of such increase or diminution. That the jurisdiction of the inferior tribunals shall be to hear and deterime, in the first instance, and of the supreme tribunal to hear and determine, in the dernier resort, all piracies and felonies on the high seas, captures from an enemy; cases in which foreigners, or citizens of other states, applying to such jurisdiction, may be interested; or which respect the collection of the national revenue; impeachments of any national officers, and questions which may involve the national peace and harmony. 10. Resolved, that provisions ought to be made for the admission of states lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the National Legislature less than the whole. 11. Resolved, that a republican government, and the territory of each state, except in the instance of a voluntary junction of government and territory, ought to be guaranteed by the United States to each state. 12. Resolved, that provision ought to be made for the continuance of Congress and their authorities and privileges, until a given day after the reform of the Articles of Union shall be adopted, and for the completion of all their engagements. 13. Resolved, that provision ought to be had for the amendment of the Articles of Union, whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto. 14. Resolved, that the legislative, executive, and judiciary powers, within the several states ought to be bound by oath to support the Articles of Union. 15. Resolved, that the amendments which shall be offered to the Con- federation, by the Convention, ought at a proper time or times, after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several Legislatures, to be expressly chosen by the people to consider and decide thereon, APPENDIX I. THE NEW JERSEY PLAN. 1. Resolved, that the Articles of Confederation ought to so be revised, corrected and enlarged, as to render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union. 2. Resolved, that in addition to the powers vested in the United States in Congress, by the present existing Articles of Confederation, they be author- ized to pass acts for raising a revenue, by levying of duties on all goods or merchandises of foreign growth or manufacture, imported into any part of the United States; by stamps on paper, vellum or parchment; and by a postage on all letters or packages passing through the general post-office; to be applied to such Federal purposes as they shall deem proper and expedient; to make rules and regulations for the collection thereof; and the same, from time to time, alter and amend in such manner as they shall think proper; to pass acts for the regulation of trade and commerce, as well with foreign nations as with each other; provided that all punishments, fines, forfeitures and penalties, to be incurred for contravening such acts, rules and regulations, shall be adjudged by the common law Judiciaries of the state in which any offence contrary to the true intent and meaning of such acts, rules, and regulations, shall have been committed or perpetrated, with liberty of com- mencing in the first instance all suits and prosecutions for that purpose in the Superior common law Judiciary in such state; subject, nevertheless, for the correction of all errors, both in law and fact, in rendering judgment, to an appeal to the Judiciary of the United States. 3. Resolved, that whenever requisitions shall be necessary, instead of the rule for making requisitions mentioned in the Articles of Confederation, the United States in Congress be authorized to make such requisitions in proportion to the whole number of white and other free citizens and inhabitants of every age, sex, and condition, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes; that, if such requisi- tions be not complied with, in the time specified therein, to direct the collection thereof in the non-complying states; and for that purpose to devise and pass acts directing and authorizing the same; provided, that none of the powers hereby vested in the United States in Congress, shall be exercised without the consent of at least states; and in that proportion, if the number of confederated states should hereafter be increased or diminished. 4. Resolved, that the United States in Congress be authorized to elect a Federal Executive, to consist of persons, to continue in office for the term of years; to receive punctually, at stated times, a fixed compensation for their services, in which no increase nor diminution shall be made so as to affect the persons composing the Executive at the time of such increase or diminution; to be paid out of the Federal treasury, 311 312 APPENDIX I. to be incapable of holding any other office or appointment during their time of service, and for years thereafter; to be ineligible a second time; and removable by Congress, on application by a majority of the Executives of the several States; that the Executive, besides their general authority to execute the Federal acts, ought to appoint all Federal officers not otherwise provided for, and to direct all military operations; provided, that none of the persons composing the Federal Executive shall, on any occasion, take com- mand of any troops so as personally to conduct any military enterprise, as General or in any other capacity. 5. Resolved, that a Federal Judiciary be established, to consist of a supreme tribunal, the Judges of which to be appointed by the Executive, and to hold offices during good behaviour; to receive punctually, at stated times, a fixed compensation for their services, in which no increase nor diminu- tion shall be made so as to affect the persons actually in office at the time of such increase or diminution. That the Judiciary so established shall have authority to hear and determine, in the first instance, on all impeachments of federal officers; and by way of appeal, in the dernier resort, in all cases touching the rights of ambassadors; in all cases of captures from an enemy; in all cases of piracies and felonies on the high seas; in all cases in which for- eigners may be interested; in the construction of any treaty or treaties, or which may arise on any of the acts for the regulation of trade, or the collection of the Federal revenue; that none of the Judiciary shall, during the time they remain in office, be capable of receiving or holding any other office or appointment during their term of service, or for thereafter. 6. Resolved, that all acts of the United States in Congress, made by virtue and in pursuance of the powers hereby, and by the Articles of Confeder- ation, vested in them, and all treaties, made and ratified under the authority of the United States, shall be the supreme law of the respective states, so far forth as those acts or treaties shall relate to the said states or their citizens; and that the Judiciary of the several states shall be bound thereby in their decisions, anything hi the respective laws of the individual states to the con- trary notwithstanding; and that if any state, or any body of men in any state, shall oppose or prevent the carrying into execution such acts or treaties, the Federal Executive shall be authorized to call forth the power of the Confeder- ated states, or so much thereof as may be necessary, to enforce and compel an obedience to such acts, or an observance of such treaties. 7. Resolved, that provision be made for the admission of new states into the Union. 8. Resolved, that the rule for naturalization ought to be the same in every state. 9. Resolved, that a citizen of one state committing an offence in another state of the Union, shall be deemed guilty of the same offence as if it had been committed by a citizen of the state in which the offence was committed, APPENDIX J. ABBREVIATIONS TO AMERICAN AND ENGLISH REPORTS. Abb. Adm Abbott's Admiralty U. S. District Court. Abb. App. Dec Abbott's New York Court of Appeals. Abb. Dec Abbott's Decisions, N. Y. Abb. N. C Abbott's New Cases. Abb. Pr Abbott's Practice, New York. Abb. Pr. (N. S.) Abbott's Practice, New Series, New York. Abr. Ca. Eq Abridgment of Cases in Equity. Abb. U. S Abbott, U. S. Circuit and District Courts. A. C Appeal Court, Chancery. Act Acton's Reports, Prize Causes. Adams Adams (N. H.). Adams & Durham. . . .Adams & Durham's Real Est. Stat. (111.). Add Addison, Pennsylvania County Court. Add. E. R Addams' Ecclesiastical Reports. Ad. & E. Adolphus and Ellis' Reports, K. B. Adm Admiralty. Adv. S. U. S Advance Sheets, U. S. Supreme Court. Aik Aiken's Vermont. Aiken Aiken (Vt.). A. K. Marsh A. K. Marshall, Kentucky. Al Aleyn's Reports, K. B. Ala Alabama. Ala. Sel. Cas Alabama Select Cases, Alabama. Alaska Alaska Reports. Alb. Law J Albany Law Journal. Ale. Reg. C Alcock s Registry Cases, Ireland. Alden Alden's Condensed Reports, Pennsylvania. Allen Allen, Massachusetts. Al. & Nap Alcock and Napier, K. B., Ireland. Alison, Prac Alison's Practice Criminal Law of Scotland. Alison, Princ Alison's Principles of ditto. Amb Ambler's Reports, Chancery. Am. Cr. Rep American Criminal Reports. Am. Dec American Decisions. A. & E. Corp. Cas. . . .American and English Corporation Case*. Amer. Law Reg.&Rev. American Law Register and Review. Amer. Law Rev American Law Review. Am. Rep American Reports. Am. St. Rep American State Reporter. Annaly Reports, time Hardwicke, K. B, Anst Anstruther's Reports, Exch. 313 314 APPENDIX J. And Anderson's Reports, C. P. Andr Andrew's Reports, K. B. Anthon, N. P Anthon, New York Cases at Nisi Prius. App Appleton (Me.). App. Cas Appeal Cases Eng. Law Reports App. D. C Appeal Cases (D. C.). App. Div Appellate Division (N. Y.). App. & S Appleton and Shepley (Me.). Ariz Arizona. Ark Arkansas. Arkley Arkley's Judiciary Reports, Scotland. Arms. M. & O Armstrong, Mecartney and Ogle's Reports, N. P., Ire- land. Ashm Ashmead, Pennsylvania. Ass Book of Assize. Asp English Maritime Cases by Aspinall. Atk Atkyn's Reports, Chancery. Atl Atlantic Reporter. B. & A Barnewall and Alderson's Reports, K. B. B. & Ad Barnewall and Adolphus' Reports, K. B. Bac. Abr Bacon's Abridgment. Bailey Bailey, South Carolina. Bailey Eq Bailey's Equity, South Carolina. Baldw Baldwin, U. S. Circuit Court, Third Circuit. Ball Banks Ball's National Banks. Ball & B Ball & Beatty 's Reports, Chancery, Ireland. Bank I Bankton's Institutes of the Law of Scotland. Bank Reg Bankruptcy Register. Ban. & A Banning & Arden's Patent Cases. Bar. & Arn Barren and Arnold's Election Cases. Barb Barbour, New York Supreme Court. Barb. Ch Barbour, New York Chancery. Bark. (Ark.) Barker (Ark.). Barn. & Adol Barnewall and Adolphus' Reports, K. B. Barn. & Aid Barnewall and Alderson's Reports, K. B Barn. C Barnardiston's Reports, Chancery. Barn. & Cress Barnewall and Cresswell's Reports, K. B. Barn. K. B Barnardiston's Reports, K. B. Barnes Barnes' Notes, C. P. Barr Barr (Pa.). Bar. & Aust Ban-on and Austin's Election Cases. Batt Batty 's Reports, K. B., Ireland. Baxt Baxter (Tenn.). Bay Bay, South Carolina Law. B. & B Broderip and Bingham's Reports, C. P. B. & C Barnewall and Cresswell's Reports, K. R B. C. C Bail Court Cases, Lowndes and Maxwell B. or C. B Common Bench. ABBREVIATIONS TO REPORTS. 315 B. C. R. Bail Court Reports, Saunders and Cole. Beas Beasley 's New Jersey Equity. Beatt Beatty 's Chancery Reports, Ireland. Beav Beavan's Reports, Rolls Court. Bee Adm Bee's Admiralty, U. S. District Court. Bel Bellewe Reports, K. B. Bell App Bell's Cases on Appeal from Scotland. Bell C. (folio & 8vo) . . Bell (R.), Cases, Court of Session. Bell's C. C Bell's Crown Cases. Ben Benedict, U. S. District Court. Benl. or Bendl Benloe or Bendloe's Reports, K. B. Benl. & Dal Benloe and Dalison's Reports, C. P. Benn Bennett (CaL). Berry. Ins. Dig Berryman's Insurance Digest. Bibb Bibb, Kentucky. Bing Bingham's Reports, C. P. Bing. N. C Bingham's New Cases, C. P. Binn Binney, Pennsylvania. Bisbee & Simond's. . .Bisbee & Simond's Board of Trade. Biss Bissell, U. S. Circuit Court, Seventh Circuit. B. Just Burns' Justice. Bli Bligh's Reports, House of Lords. Bl Blount. B. & L Browning and Lushington's Admiralty Rep. Black Black, U. S. Supreme Court. Black., W Sir William Blackstone's Reports, K. B. Blackf Blackford, Indiana. Black., H Henry Blackstone's Reports, C. P. Bla. Com Blackstone's Commentaries. Bl. D. & Osb Blackham, Dundas & Osborne's Reports, N. P., Ireland. Bland Bland, Maryland Chancery. Blatchf Blatchford, U. S. Circuit Court, 2nd Cir. Blatch. & H. Adm Blatchford & Howland's Admiralty, U. S. District Court. Blatchf. Prize Gas Blatchford 's Prize Cases, U. S. Dist. Ct. Bli. N. S Bligh's Reports, New Series. Bl. R Mr. Justice Blackstone's Reports. B. Mon B. Monroe, Kentucky. B. N. C Brook's New Cases, K. B. B. N. P Buller'sNisi Prius. Bond Bond, U. S. Circuit Court, Sixth Circuit. Bos. & Pul Bosanquet and Puller's Reports, C. P. Bos. & P. N. R Bosanquet and Puller's New Reports, C. P. Bosw Bosworth, New York Superior. B. &. P Bosanquet and Puller's Reports, C. P. Br Alexander Bruce's Reports, Court of Session. Brae , Bracton de Legibus. 316 APPENDIX J. Bradwell Illinois Appellate. Branch Branch (Fla.). Brandenburg's Bankr. Dig Brandenburg's Bankruptcy Digest. Brayt Brayton, Vermont. Br. Brev. Jud. & Ent. . Brownlow, Brevia Judicialia, etc. Br. Bro Brooke, Browne, Brownlow. Breese Breese, Illinois Reports. Brev Brevard, South Carolina Law. Brews Brewster, Pennsylvania. Bridg Bridgman's Reports, C. P. Bridg. Orlando Bridgman's Reports, C. P. Bright Brightly, Court of Nisi Prius, Pennsylvania. Br. N. C Brooke's New Cases, K. B. Bro. Ab Brooke's Abridgment. Bro. C. C Brown's Chancery Reports (Eden or Belt). Brocken Brockenbrough, U. S. Circuit Court, 4th Cir. Brock. & H Brockenbrough and Holmes, Virginia. Brod. & B Broderip and Bingham's Reports, C. P. Bro. P. C Brown's Parliament Cases. Bro. Stair .Brodie's Notes & Sup. to Stair's Institution, Scotland. Bro. Supp Brown's Sup. Morrison's Diet. C't of Session. Bro. Syn Brown's Synop. of Decisions, C't of Session. Brown Brown's Judiciary Reports, Scotland. Brown Adm Brown's Admiralty, U. S. Browne (Pa.) Browne, Pennsylvania Court of C. P. Brownl Brownlow and Goldsborough's Reports, C. P. Brunner Col. Gas Brunner's Collected Cases, U. S. B. & S Best and Smith's Reports, Q. B. Buck Buck's Reports in Bankruptcy. Bull. N. P Buller's Nisi Prius. Bulst Bulstrode's Reports, K. B. Bunb Bunbury 's Reports, Ex. Burn Burnet, Wisconsin Territory. Burr Burrow's Reports, K. B. Burr. S. C Burrow's Settlement Cases. Busb. Eq Busbee, North Carolina Equity. Busb. L Busbee, North Carolina Law. Bush Bush, Kentucky. C Codex (Juris Civilis). Ca. C. L Cases in Crown Law. Cal Callis or California. Cald Caldecott's Reports, K. B. Call Call, Virginia. Calth Calthorpe's Reports, K. B. Cam. & N Cameron & Norwood, North Carolina Law. Camp. N. P Campbell's Reports, Nisi Prius. Cam. Scacc. Camera, Scaccarii, Exchequer Chamber. ABBREVIATIONS TO REPORTS. 317 Ca. Pra. K. B Cases of Practice in King's Bench. Car. H. &. A Carrow, Hamerton and Allen, Session Cases. Car. & Kir Carrington's and Kirwan's Reports, N. P. Car. & M Carrington and Marshman. Car. & P Carrington and Payne's Reports, N. P. Carp. P. C Carpmael's Patent Cases. Cart Carter, Ind. Cart Carter's Reports, C. P. Gary Gary's Reports, Chancery. Carth Carthew's Reports, K. B. Gas. C. R Cases temp. Will. Ill (12 Mod.). Gas. L. Eq Cases in Law and Equity (10 Mod.). Ca. P. or Parl Cases in Parliament. Cas. Pra. C. P Cases of Practice, Common Pleas. Cas. Six Cir Cases on the Six Circuits, Ireland. Cas. t. Talb Cases time Talbot, Chancery. Ca. temp. F Cases temp. Finch. Ca. temp. Holt Cases in the time of Holt, C. J. K. B. Ca. t. K Cases time King, Chancery. Ca. temp. H Cases time Hardwicke, K. B. Cawl Cawlep. C. B Common Bench Reports. C. B., N. S Common Bench Reports, New Series C. C. A County Court Appeals. C.C.A U. S. Circuit Court of Appeals Reports C. C Cases in Chancery or Crown Cases. C. C Code Civil Francais, or Code Napoleon. C. C. R Crown Cases Reserved. C. E. Green C. E. Green, N. J. Cent. Dig Century Digest. Cent. Law J Central Law Journal. C. & K Carrington and Kirwan's Reporta, N. P. Ch Chancery Division. Chand Chandler, N. H. Chand Chandler, Wisconsin. Charlt. R. M R. M. Charlton (Ga.). Charlt. T. U. P T. U. P. Charlton (Ga.). Chase Chase, U. S. Ch. Cas Cases in Chancery. Ch. Cas. Ch Choice Cases in Chancery. Cheves Eq Cheves, South Carolina Equity. Cheves Cheves, South Carolina Law. D. Chip D. Chipman's Reports, Vermont. N. Chip N. Chipman's Reports, Vermont. Ch. Pre Precedents in Chancery. Chit. Rep Chitty's Reports, Bail Court. Cin. R. . Cincinnati Superior Court Reporter (O.). 318 APPENDIX J. Cin. Superior Ct Superior Court of Cincinnati. Cir. Ct. Dec Circuit Court Decisions (O.). City Ct. R City Courts Reports, N. Y. City H. Rec Rogers, City Hall Recorder, New York. Civ. Proc. R New York Civil Procedure Reports. C. J. C Cowper's Justiciary Cases. Clarke Clarke (la.). Clarke Ch Clarke, New York Chancery. Clay Clayton's Reports, York Assize. Cl. & Fin Clarke and Finnelly Reports, House of L. Cliff Clifford, U. S. Circuit Court, First Circuit. C. L. P. Act Common Procedure Act. C. L. R Common Law Reports. C. M. & R Crompton, Meeson and Roscoe's Reports, Ex. C. & M Crompton & Meeson 's Reports, Ex. Co Coke's Reports. Code Civ Code Civil Francais, or Code Napoleon. Cod. Jur. Civ Codex (Juris Civilis), Justinian Codex. Code Nap Code Napoleon. Code P Code Penal. Code R. (N. S.) Code Reports, New Series, New York. Code Rep Code Reporter (N. Y.). Col Colorado. Col. App Colorado Appeals. Col. Gas Coleman's Cases, New York Law. Col. & C. Gas Coleman & Caines' Cases, New York Law. Col. C. C Collyer's Chancery Cases. Coldw Coldwell, Tennessee. Cole, C. S Colebrooke's Collateral Securities. Colles Colics' Cases in Parliament. Comb Comberbach's Reports, K. B. Com Comyn's Reports, K. B. and 0. P. Com'l. Gas Commercial Cases. Com. Dig Comyn's Digest. Com. Law Rep Common Law Reports. Comst New York Court of Appeals. Conf. (N. C.) Cameron & Norwood's North Carolina Law. Con. & Law Connor & Lawson's Rep'ts, Ireland. Conn Connecticut. Consist Consistory Reports, Haggard. Const. (S. C.) Treadway's Reports, S. Carolina Constitutional. Con. Sur Connolly's Surrogate, New York. Const. N. S. (S. 0.). . .Mills' Reports, South Carolina Constitutional. Coo. & Al Cooke and Alcock's Reports, K. B., Ireland. Cooke Cooke, Tennessee. Coop Cooper (G.) Chancery. Cooper Cooper's Reports, Chancery. ABBREVIATIONS TO REPORTS. 319 Co. P. C Coke's Pleas of the Crown (3 Inst.). Corb. & D Corbett and Daniell, Election Cases. Co. Rep Coke's Reports, K. B. Cot Cotton. Cow Cowen, New York Law. Cowp Cowper's Reports, K. B. Cox Cox, Arkansas. Cox C. C Cox's Criminal Cases. Cox Cox's Reports, Chancery. Coxe Coxe, New Jersey Law. C. P Common Pleas. C. & P Carrington and Payne's Reports, N. P. C. S Court of Session, Scotland. C. Theod Codex Theodosiani. C. T. N Cases in the time of L. C. Northington. Cr Craig, Jus. Feudale, Scotland. Crabbe Crabbe, U. S. District Court, Pennsylvania. Cranch Cranch, U. S. Supreme Court. Cranch C. Ct Cranch, U. S. Circuit Court for District of Columbia. Cranch Pat. Dec Cranch's Patent Decisions (U. S.). Craw. & D. Ab. C. . . .Crawford and Dix's Abridged Cases, Ireland. Craw. & D Crawford and Dix's Circuit Cases, Ireland. Cr. Law Mag Criminal Law Magazine. Cro. (1, 2, 3) Croke (Eliz., Jam., Cha.), K. B. and C. P. Cro Keilway 's Reports by Serj. Croke. Cromp Crompton's Courts. Cromp. & J Crompton & Jarvis' Reports, Ex. Cromp. & M Crompton & Meeson's Reports, Ex. Cromp. M. & R Crompton, Meeson and Roscoe's Reports, Ex. Cr. & Ph Craig and Phillips, Chancery. Cr. & St Craigie and Stewart's Reports, House of L. Cru Cruise's Digest. Ct. Cl Court of Claims (U. S.). Cunn Cunningham's Reports, K. B. Curt Curtis, U. S. Circuit Court, First Circuit. Callaghan 3C DuCurteis' Ecclesiastical Reports. Curtis Fed. App. Cts. .Curtis' Federal Appellate Courts. Cush Gushing, Massachusetts. Gush. Elec. Cas Gushing, Story & Josselyn's Election Cases, Mass. Cushm Cushman, Mississippi Reports. D Dictum Digest (Juris Civilis). Dak Dakota. Dal Dallison's Reports, C. P. Dall Dallas, U. S. Courts and Pennsylvania. Dallas Dallas Styles, Scotland. Dall. Dec Dalam's Texas Decisions. Dalr Dalrym pie's Decisions, Court of Session. Daly Daly, New York Common Pleas. 320 APPENDIX J. Dan Daniel's Reports, Ex. Eq. Dav Davy's Reports, Ireland. Dana Dana, Kentucky. Dan. & LI Dansen and Lloyd Mercantile Cases. Daveis Daveis, U. S. District Court of Maine. Day Day, Connecticut. D. & C Deacon and Chitty, Bankruptcy Reports. D. C District of Columbia. D. Chip D. Chipman, Vermont. D. or Diet Dictionary (Morrison's) Court of Session. Dea. & Sw Deane and Swabey 's Reports, P. & D. Deac. & Ch Deacon and Chitty, Bankruptcy Reports. Deady Deady, U. S. Courts Oregon and California. Dears. & B. C. C Dearsley and Bell's Crown Cases. Dears. C. C Dearsley 's Crown Cases. Deas & And Deas and Anderson's Reports, Court of Sess. D. or Dig Justiniani Digestse, sive Pandectae. De G De Gex's Bankruptcy Reports. De G. F. & J De Gex, Fisher and Jones' Reports, Chancery. De G. & J De Gex and Jones' Reports, Chancery. De G. J. & S De Gex, Jones and Smith's Reports, Chan. De G. M. & G De Gex, Macnaghten and Gordon's Rep., Ch. De G. & Sm De Gex and Smale's Reports, Chancery. Del Delaware. Del. Ch Delaware Chancery. Dem. Sur Demarest's Surrogate, New York. Den. Cr. C Denison's Crown Cases. Desm. Ch. L Desmond's Church Law. Desau Desaussure, South Carolina Equity. Dev. Eq Devereux, North Carolina Equity. Dev. L Devereux, North Carolina Law. Dev Devereux, United States Court of Claims. Dev. & B Devereux & Battle, North Carolina Law. Dev. & B. Eq Devereux & Battle, North Carolina Equity. Di. Dy Dyer's Reports, K. B. Dick Dickinson, New Jersey. Dick Dickens' Reports, Chancery. Dill Dillon, U. S. Circuit Court, Eighth Circuit. Dirl Dirleton's Decisions, Court of Sessions. Disney Disney, Cincinnati Superior Court. D. & L Dowling and Lowndes Bail Court Reports. D. & M Davison Merivale, Q. B. Reports. D. N. S Dowling, New Series, Bail Court Reports. Dod Dodson's Reports in Admiralty. Dom. Proc Domini Proctor Cases, House of Lords. Dougl. (Mich.) Douglas, Michigan Supreme Court. Doug Douglas' Reports, K. B. Dow. & C Dow and Clark, House .of Lords Cases. ABBREVIATIONS TO REPORTS. 321 Dow. & L Bowling and Lowndes' Bail Court Reports. Dow. & Ry Dowling and Ryland's K. B. Reports. Dow. & R. M. C Dowling and Ryland's Magistrates' Cases. Dow. & Ry. N. P Dowling and Ryland's Nisi Prius. Dowl. P. C Dowling 's Practice Cases. D. & R Dowling and Ryland's K. B. Reports. Drew Drewry 's Reports, Chancery. Drew. & Sm Drewry and Smale's Reports, Chancery. Drury Drury 's Reports, Chancery, Ireland. Dr. & Wai Drury and Walsh, Chancery Reports, Ireland. Dr. & War Drury and Warren, Chancery Rep., Ireland. D. & S Doctor and Student. Dudley (Ga.) Dudley, Georgia. Dudley (S. C.) Dudley, South Carolina Law. Dudley Eq Dudley, South Carolina Equity. Duer Duer, New York City Superior Court. Duff I uff on Conveyancing, Scotland. Dugd Dugdale's Origines. Durnf . & E Durnford and East, or Term Reports, K. B. Dunlop or D Dunlop, Bell and Murray's Reports. Durie Durie's Reports, Court of Session. Dutch Dutcher, New Jersey Law. Duv Duvall, Kentucky. E. & A Eccles. and Admiralty Reports. Eag. & Yo Eagle and Yonge's Tithe Cases. East East's Reports, K. B. East P. C East's Pleas of the Crown. Ecc. & Ad Eccles. and Admiralty Reports. E. of Cov Earl of Coventry's Case. Eden Eden's Rep. of Northington's Cases, Ch. Edg Edgar's Reports, Court of Session. Edicta Edicts of Justinian. Edm. Sel. Cas Edmond's Select Cases, New York Law. E. D. Smith E. D. Smith, New York. Edw. Ch Edwards, New York Chancery. Edw. A. R Edward's Admiralty Reports. El. B. & E Ellis, Blackburn and Ellis 's Reports, Q. B. El. B. & S Ellis, Best and Smith's Reports, Q. B. El. & Bl Ellis and Blackburn's Reports, Q. B. El. & El Ellis and Ellis's Reports, Q. B. Eng English, Arkansas. Eq. Ca. Abr Equity Cases Abridged. Eq. Rep Equity Reports. Esp Espinasse's Rep. or Digest, N. P. Exch. Rep Welsby, Hurlstone and Gordon's Reports. F Consuetudines Feudomm. F. or Fed Federal Reporter. F. or Fitz Fitzherbert. Vol. 121 322 APPENDIX J. Fac. Coll Faculty Collection of Reports, C't of Sess Fairf Fairfield, Maine. Falc Falconer's Reports, Court of Session. Falc. & Fitz Falconer and Fitzherbert Election Cases Fed Federal Reporter. Fed. Gas Federal Cases. Ferg Ferguson's Consistory Reports, Scotland. F. & F Foster and Finlason's Reports, Nisi Prius. Fin Finch's Reports, Chancery Fish. Prize Gas Fisher's Prize Cases. Fish. Pat. Cas Fisher's Patent Cases. Fish. Pat. Rep Fisher's Patent Reports. Fitz-G Fitz-Gibbon's Reports, K. B. Fl Fleta. Fla Florida. Flan. & K Flanagan and Kelly's Reports. Rolls Ireland. Flip Flippin, U. S. Fogg Fogg, New Hampshire. For Forrest's Reports, Ex. Forb Forbe's Decisions, Court of Session. Forester Cases time of Talbot, Chancery. Fort, de Laud Fortescue de Laudibus Anglise Legum. Fortes Fortesque's Reports, K. B. Fost Foster, New Hampshire. Fost. Forst Foster's Reports, Crown Law. Fount Fountainhall 's Decisions, Court of Session. Fox & S Fox and Smith's Reports, K. B., Ireland. fr Fragment or Excerpt or Laws Pandects. Free. Chy Freeman's Chancery Reports. Freem. Ch Freeman, Mississippi Chancery. Freem. (111.) Freeman, Illinois. Freem. K. B Freeman's Reports, K. B. Ga Georgia. Ga. Dec Georgia Decisions. Gaii Gaii Institutionum Commentarii IV. Gal. & Dav Gale and Davison's Reports, K. B. Gall Gallison, U. S. Circuit Court, First Circuit. George George, Mississippi. Gib. Cod Gibson's Codex. Gilb. Exch. Exchequer. K. B King's Bench. R Reports. Rem Remainders. Us Uses. Gif Gifford's Reports, Chancery. Gil Gilfillan, Minnesota. Gill Gill, Maryland. Gill & J Gill & Johnson, Maryland. ABBREVIATIONS TO REPORTS. 323 Gilm Oilman, Illinois. Gilm Gilmour's Reports, Court of Session. Gilmer Gilmer, Virginia. Gilp Gilpin, U. S. District Court, Pennsylvania. Glanv Glanville de Legibus. Glassc Glasscock's Reports in Ireland. Godb Godbolt's Reports, K. B. Golds Goldsborough's Reports, K. B. Godol Godolphin. Gosf Gosford's Reports, Court of Session. Gow's N. P. C Gow's Nisi Prius Cases. Grant Gas Grant's Cases, Pennsylvania. Gratt Grattan, Virginia. Gray Gray, Massachusetts. Green Ch Green, New Jersey Chancery. Green, J. S Green, J. S. (N. J.). Green L Green, New Jersey Law Green, W. H Green, W. H. (N. J.). C. E. Green C. E. Green, New Jersey, Chancery Greene (Iowa) Greene, Iowa. Greenl Greenleaf, Maine. Gwm Gwillim's Tithe Cases. Had Earl of Haddington's Reports, C't of Sess. Hag. Adm Haggard's Admiralty Reports. Hag. Con Haggard's Consistory Reports. Hag. EC Haggard's Ecclesiastical Reports. Hailes Haile's Decisions, Court of Session Hall Hall, New York Superior Court. Halst Halsted, New Jersey Law. Halst . Ch Halsted, New Jersey Chancery. Ham Hammond, Ohio. Hanm Hanmer's Lord Kenyon's Notes, K. B. Hand Hand, New York. Handy Handy, Cincinnati Superior Court. Hare Harcarse's Decisions, Court of Session. Hard Hardin, Kentucky Law. Hard Hardre's Reports, Ex. Hare Hare's Reports, Chancery Har. & G Harris & Gill, Maryland. Har. & J Harris & Johnson, Maryland. Har. & McH Harris & McHenry, Maryland. Harp Harper, South Carolina Constitutional Law Harp. Eq Harper, South Carolina Equity. Harr. (Del.) Harrington, Delaware. Hair. (Mich.) Harrington, Michigan Chancery. Harr. (N. J.) Harrison, New Jersey Law. Harris Harris (Pa.). Ha. & Tw Hall and Twell's Chancery Reports. 324 APPENDIX J. Harv. Law Rev Harvard Law Review. Hask Haskell, U. S. Hawaiian I Hawaiian Islands. Hawk, P. C Hawkin's Pleas of the Crown. Hawks Hawks, North Carolina Law. Hayes Hayes' Reports, Exchequer, Ireland. Hayes & J Hayes & Jones' Rept., Excheq., Ireland. Hayw. (Tenn.) Haywood, Tennessee. Hayw. (N. C.) Haywood, North Carolina Law and Equity. Hayw. & H Hayward & Hazelton (D. C.). H. & C Hurlstone and Coltman's Reports, Ex. Head Head, Tennessee. Hein Heineccius. Heisk Heiskell, Tennessee. Hem. & M Hemming and Miller, Chancery. Hempst Hempstead, U. S. and C'ts in Ark. Hen. & M Hening & Munford, Virginia. Her Herne. Het Hetley's Reports, C. P. Hill Hill, New York Law. Hill (S. C.) Hill, South Carolina Law. Hill Eq Hill, South Carolina Equity. Hill & D. Supp Lalor's Suppl. to Hill & Denio, N. Y. Law Hilt Hilton, New York Common Pleas. Hilly Hillyer, California. H. L. Rep., Gas Clark and Finnelly's House of Lords Rep., N. S. H. & N Hurlstone and Norman's Reports, Ex. Hob Hobart's Reports, K. B. Hoff m. Ch Hoffman, New York Chancery. Hoffm. Land Cas Hoffman's Land Cases, U. S. Dist. (Cal.). Hog Hogan's Reports, Rolls, Ireland. Holmes Holmes, U. S. Circuit Court, First Circuit. Holt Holt's Reports, K. B. Holt, N. P Holt's Nisi Prius Reports. Home (Clk.) Clerk Home's Reports, Court of Session. Hope Thomas Hope's Reports, Court of Session. Hopk. Ch Hopkins, New York Chancery. Hop. & C Hopwood & Coltman, Registration App. Cas. Hop. & P Hopwood & Philbrick, Registration App. Cas. Houst Houston, Delaware. Houst. Cr. Cas Houston's Criminal Cases, Delaware. Hov. Suppl Hovenden's Supplement to Vesey, Jun. How Howard, United States Supreme. How. App. Cas Howard's Appeal Cases, New York. How. (Miss.) Howard, Mississippi. How. Pr Howard's Practice, New York. How. Prac. (N. S.). . .Howard's Practice, New Series, (N. Y.). H. P. C. . . . . . Bale's Pleas of the Crown. ABBREVIATIONS TO REPORTS. 325 H. & R Harrison and Rutherford's Reports, C. P. Hud. & B Hudson and Brooke's Reports, K. B., Ireland. Hughes Hughes, U. S. Circuit Court, Fourth Circuit. Hughes Hughes, Kentucky. Hume Hume's Decisions, Court of Session. Humph Humphrey, Tennessee. Hun Hun, New York Supreme. Hut Button's Reports, C. P. Hutch. Car Hutchinson 's Carriers. Idaho Idaho. Idaho T Idaho Territory. I. J. C Irvine's Justiciary Cases. Ill Illinois. 111. App Illinois Appellate. Ind Indiana. Ind. App Indiana Appellate. Indian T Indian Territory. Ins. Law J Insurance Law Journal. lo Iowa. I. R. C. L Irish Reports, Common Law Series. Ired Iredell, North Carolina Law. Ired. Eq Iredell, North Carolina Equity. I. R. Eq Irish Reports, Equity Series. Ir. Law & Eq Irish Law and Equity Reports, Ireland. Ir. Law & Ch Irish Law and Equity Reports, N. S. Iv. Ersk Ivory's Notes on Erskine's Institute. Jac. or Jacob Jacob's Reports, Chancery. Jac. & W Jacob and Walker's Reports, Chancery. Jebb C. C Jebb's Crown Cases, Ireland. Jebb & B Jebb and Bourke's Reports, K. B., Ireland. Jebb & S Jebb and Syme's Reports, K. B., Ireland. Jeff Jefferson, Virginia. Jenk Jenkins' Reports, Ex. J. J. Marsh J. J. Marshall, Kentucky. John Johnson's Reports, Chancery. John. & H Johnson and Hemming's Reports, Chancery. Johns Johnson, New York Law. Johns. Gas Johnson's Cases, New York Law. Johns. Ch Johnson, New York Chancery. Jo. & Lat Jones & Latouche's Rep. Ch., Ireland. Jon. 1, 2 Jones' W. and T. Reports, K. B. Jones Jones' Reports, Exch., Ireland. Jones & C Jones and Carey's Reports, Exch., Ireland. Jones Eq Jones, North Carolina Equity. Jones L Jones, North Carolina Law. Jones T Jones' Reports, K. B. Jones W Jones' Reports, K. B. Jones & S Jones and Spencer, New York. 326 APPENDIX J. Jur. Sc Scottish Jurist, Court of Session. Jur. St Judicial Styles, Scotland. Just. Inst Justinian's Institutes. J. & W Jacob and Walker's Reports, Chancery. Kames Kames' Decisions, Court of Session. Kames' Eluc Kames' Elucidations of the Law of Scotland. Kames' Rem. D Kames' Remarkable Decisions, C't of Ses. Kames' S. D Kames' Select Decisions, Court of Session. Kan Kansas. Kan. App Kansas Appeals. Kay Kay's Reports, Chancery. Kay & J Kay and Johnson's Reports, Chancery. KB King's Bench. K. C. R Rep. temp. King, C. Chancery. Keb Kebbl's Reports, K. B. Keen Keen's Reports, Rolls Court. Keilw. Keil Keilway's Reports, K. B. Kel Sir John Kelying's Reports, K. B. Kel. 1,2 Wm. Kelynge's Reports, 2 parts, Chancery. Kelly Kelly, Georgia. Ken Kennet. Kent Comm Kent's Commentaries. Keny Kenyon's Notes, by Hanmer, K. B. Kern Kernan, New York Appeals. Keyes Keyes' New York Appeals. K. & G. R. C Keane and Grant's Registration Cases. Kilk Lord Kilkerran's Decisions, C't of Sess. Kirby Kirby, Connecticut. Kit Kitchen. Kn Knapp's Reports, Privy Council. Kn. & O Knapp and Ombler, Election Cases. Kulp Kulp, Pennsylvania. Ky Kentucky. Ky. Dec Kentucky Decisions. Ky. Law Rep Kentucky Law Reports. La Lane's Reports, Exchequer. La Louisiana. La. An Louisiana Annual. Lack. Leg. N Lacka wanna Legal News, Pennsylvania. Lalor Supp Lalor's Supplement to Hill & Denio's (N. Y.). Lamb Lambard. Lane. Law Rev Lancaster Law Review. Lans. Ch Lansing's Chancery, New York. Lans Lansing, New York Supreme. Lat Latch's Reports, K. B. Law J. Ch Law Journal Chancery. Law J. K. B Law Journal, King's Bench. Law J. M. Cas Law Journal, Magistrates Cases. ABBREVIATIONS TO REPORTS. 327 Law J. P Law Journal Probate. Law J. P. C Law Journal Privy Cases. Law J. Q. B Law Journal Queen's Bench. Law Rec Law Recorder, Reports, Ireland. Law Reg Law Register (Chicago). Law Rep. Ad. & EC. . . Admiralty and Ecclesiastical. Law Rep. 0. C Crown Cases Reserved. Law Rep. Ch Chancery Appeal Cases. Law Rep. C. P Common Pleas Cases. Law Rep. Eq Equity Cases. Law Rep. Ex Exchequer Cases. Law Rep. H. L English and Irish Ap. Cases, H. of Lords. Law Rep. H. L. Sc. . .Scotch & Divorce Ap. Cases, H. of Lords. Law Rep. P. & D. . . . Probate and Divorce. Law Rep. Q. B Queen's Bench Cases. Law Repos. (N. C.). ..Carolina Law Repository, N. C. Law. Law T Law Times. L. & C Leigh and Cave, Crown Cases. Ld. Kem Kenyon's Reports, K. B. Ld. Raym Lord Raymond's Reports, K. B. Lea Lea (Tenn.). Leach Leach's Crown Law. L. Ed Lawyer's Edition Supreme Court Reports. Lee Lee (Cal.). Lee & H Lee's Cases, temp. Hardwicke, K. B. Leg. Gaz Legal Gazette, Pennsylvania. Leg. Gaz. R Legal Gazette Reports, Pennsylvania. Leg. Int Legal Intelligencer, Pennsylvania. Leg. O The Legal Observer. Leg. & Ins. Rep Legal and Insurance Reporter. Lehigh Val. Law Rep. Lehigh Valley Law Reporter. Leigh Leigh, Virginia. Leon Leonard's Reports, K. B. Lev Levinz's Reports, K. B. Lew. C. C Lewin's Crown Cases. Ley Ley's Reports, K. B. L. & G. temp. Plunk. .Lloyd & Goold, temp. Plunkett, Chancery. Lib. Reg Register Book. L. I. L Lincoln's Inn Library. Lil Lily's Reports of Entries. L. J Law Journal, Reports in all the Courts. Litt Littell, Kentucky. Litt. Sel. Cas Littell 's Select Cases, Kentucky. Lit Littleton's Reports, C. P. Llo. & Goo Lloyd and Goold, temp. Sugden, Chy., Ireland. Lloyds S. Tr Lloyd's State Trials. L. Mag The Law Magazine. L. M. & P Lowndes, Maxwell & Pollock's Rep., Bail Ct. 328 APPENDIX J. Lock. Rev. Gas Lockwood's Reversed Cases, New York Law. Lofft Lofft's Reports, K. B. Longf. & T Longfield & Townsend's Rep., Ech., Ireland. Long Quinto Year Book, pt. 10, K. B. Loring & R. Elec. Cas.Loring & Russell's Election Gases, Mass. Lower Ct. Dec Lower Court Decisions (O.). Low Lowell, U. S. District Court, Massachusetts. L. R. A Lawyer's Reports Annotated. L. Rev The Law Review. L. T The Law Times, Reports. Lud. E. C Luder's Election Cases. Lush Lushington's Admiralty Reports. Lut Lutwyche's Reports, C. P. Lut. R. G .Lutwyche's Registration Cases. Luz. Leg. Obs Luzerne Legal Observer, Pennsylvania. Luz. Leg. Reg Luzerne Legal Register, Pennsylvania. L. & Welsb Lloyd and Welsby's Commercial Reports. M. & Ayr. B. L Montagu and Ayrton's Bankrupt Law. M. & Ayr. R Montagu and Ayrton's Reports, Bankruptcy. MacArthur MacArthur's Patent Cases (U. S.). MacArthur & M MacArthur & Mackey, D. C. MacArthur's Pat. Cas. MacArthur's Patent Cases, U. S. Mac. & G Macnaghten and Gordon's Reports, Chancery. Mac. P. C McCroy's Patent Cases. Mack Sir G. Mackenzie's Institution, Scotland. Mackey Mackey (D. C.). Mack. Grim Sir G. Mackenzie's Criminal Law. Macl. & R Maclean and Robinson's Scotch Appeals. Macph Court of Session Cases, Third Series. Macq. H. L. Cas Macqueen's Scotch Appeal Cases. Mad Maddox's Exchequer and Formulare. Madd Maddock's Reports Chancery. Madd. Ch Maddock's Chancery Practice. Man Manning (Mich.). Man. & G Manning and Granger's Reports, C. P. Man. & R Manning and Ryland's Reports, X. B. Man. Unrep. Cas Manning's Unreported Cases, Louisiana. Manson Manson English Reports. Mar March's Reports, K. B. Marsh Marshall's Reports, C. P. Marsh Dec Brockenbrough's Reports, U. S. Circuit Court. A. K. Marsh A. K. Marshall's Kentucky Reports. J. J. Marsh J. J. Marshall's Kentucky Reports. Mart. (La.) Martin's Louisiana Reports. Mart. (N. C.) Martin, North Carolina Law. Mart. (N. S.) Martin's Reports, New Series, Louisiana. Mart. & Y Martin & Yerger, Tennessee. Mason Mason, U. S. Circuit Court, First Circuit. ABBREVIATIONS TO REPORTS. 329 Mass Massachusetts. Mau. & Sel Maule and Selwyn's Reports, K. B. McCahon McCahon, U. S. District Court, Kansas. McAll McAllister, U. S. District Court, California. McCart McCarter, New Jersey Equity. McArthur McArthur, District of Columbia. McCle McCleland's Reports, Ex. McCle. & Yo McCleland and Young's Reports, Ex. McCord McCord, South Carolina Constitutional Court. McCord Ch McCord, South Carolina Chancery. McCrary McCrary, U. S. McF. R McFarlane's Reports, Jury Court, Scotland. McGloin McGloin, Louisiana. McLean McLean, U. S. Circuit Court, Seventh Circuit. McMull McMullan, South Carolina Law. McMull. Eq McMullan, South Carolina Equity. Md Maryland. Md. Ch Maryland Chancery. M. D. & D Montagu, Deacon & De Gex's Rep'ts. Me Maine. Mee. & W Meeson and Welsby's Reports, Ex. Meigs Meigs, Tennessee. Mer. or Meriv Merri vale's Reports, Chancery. Mete. (Ky.) Metcalfe, Kentucky. Mete Metcalf, Massachusetts. Mich Michigan. Mich. Law J Michigan Law Journal. Miles Miles, Philadelphia District Court. Mill Const Mill, South Carolina Constitutional Court. Miller Miller, Louisiana. Mill. Dec Miller's Decisions, U. S. 8th Circuit Court. Milw Milward's Reports, Irish Ecclesiastical. Minn Minnesota. Minor Minor, Alabama. Misc. Rep Miscellaneous Reports, New York. Miss Mississippi. M. L. Rep. Super. C. . Montreal Law Reports Superior Court. M. & McA Montagu and McArthur's Reports. Mo Missouri. Mo Moore's Reports, K. B. Mo. App Missouri Appeal, St. Louis Court of Ap. Mo. App. Rep Missouri Appellate Reporter. Mod. Rep Modern Reports, K. B. Mol Molloy's Chancery Reports, Ireland. Monag Monaghan (Pa.). Mon. or B. Mon B. Monroe, Kentucky. Mon. or T. B. Mon. . .Monroe, Kentucky. Mont Montana. 330 APPENDIX J. Mont. & B Montagu & Bligh's Reports, Bankruptcy. Mont. B. Montague's Reports, Bankruptcy. Mont. & Chit Montagu & Chitty's Reports, Bankruptcy. Montg. Co. Law Rep. .Montgomery County Law Reporter, Pa. Month. Law Bui Monthly Law Bulletin (N. Y.). Moo. Ind. Ap Moore's India Appeals. Moo. C. C Moody 's Crown Cases. Moo. J. B J. B. Moore's Reports, C. P. Moo. & M. Moody and Malkin's Reports, N. P. Moo. & P Moore and Payne's Reports, C. P. Moo. P. C. C Moore's Privy Council Cases. Moo. P. C. C. N. S. .. .Moore's Privy Council Cases, New Series. Moo. & R Moody and Robinson's Reports, N. P. Moo. & S Moore and Scott's Reports, C. P. Moore Moore (Ark.). Moore (C. P.) Moore's Common Pleas Reports. Morr. Min. R Morrison's Mining Reports. Morris Morris, Iowa. Mos Moseley's Reports, Chancery. M. & S Maule and Selwyn's Reports, K. B. Munf Munford, Virginia. Murph Murphey, North Carolina Law. Murr Murray's Reports, Jury Courts, Scotland. Myl. & Cr Mylne and Craig's Reports, Chancery. Myl. & K Mylne and Keene's Reports. M. & W Meeson and Welsby 's Reports, Ex. Myr. Prob Myrick's Probate Court Reports, California. Nat. Corp. Rep National Corporation Reporter. N. Benl New Benloe, K. B. Reports. N. B. R National Bankruptcy Register, U. S. N. C North Carolina. N. C. . Notes of Cases Ecclesiastical and Maritime. N. Chip N. Chipman, Vermont. N. C. Term R North Carolina Term Reports. N. D North Dakota. N. E Northeastern Reporter. Neb Nebraska. Nels Nelson's Reports, Chancery. Nev Nevada. Nev. & M Neville and Manning's Reports, K. B. Nev. & P Neville and Perry's Reports, K. B. Newb. Adm Newberry's Admiralty, U. S. District Court. N. H. . New Hampshire. Nisi Prius & Gen. T. Rep Nisi Prius and General Term Reports (O.). N. J. Eq New Jersey Equity. N. J. L New Jersey Law. N. J, Law J New Jersey Law Journal. ABBREVIATIONS TO REPORTS. 331 N- L Nelson's Lutwyche, Reports, C. P. N. M New Mexico. Nol. Sett Nolan's Settlement Cases. Norris Norris, Pennsylvania. North Northington's Reports, by Eden, Chancery. Northam. Law Rep. . . Northampton Law Reporter. N