THE LIBRARY 
 
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 THE UNIVERSITY 
 
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 SCHOOL OF LAW 
 
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 School of Law Library 
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 ELEMENTS 
 
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 AMERICAN JURISPRUDENCE
 
 ELEMENTS 
 
 OF 
 
 AMERICAN JURISPRUDENCE 
 
 BY- ~M 
 WILLIAM C. ROBINSON, LL.D. 
 
 WH1TEFORD PROFESSOR OF COMMON LAW IN THE CATHOLIC UNIVER- 
 
 8ITT OF AMERICA; SOMETIME PROFESSOR OF LAW IN TALE 
 
 UNIVERSITY J AUTHOR OF " ELEMENTART LAW," 
 
 "FORENSIC ORATORY," "LAW OF PATENTS," 
 
 ETC.. ETC. 
 
 BOSTON 
 LITTLE, BROWN, AND COMPANY 
 
 1900
 
 T 
 
 R5&23eL 
 
 \900 
 
 Copyriqht, 1900, 
 By William C. RobinsojT 
 
 JPn'ntrra 
 S. J. Parkhill <fc Co., Boston, U. S. A.
 
 TO 
 ALL THOSE MEMBERS OF THE 
 
 AMERICAN BAR 
 
 BETWEEN WHOM AND THE AUTHOR 
 
 THE RELATION OF PUPIL AND TEACHER 
 
 HAS AT ANY TIME EXISTED 
 
 THIS TREATISE 
 
 IS 
 
 AFFECTIONATELY DEDICATED
 
 PREFACE. 
 
 Jurisprudence, as the word is used in the title of this 
 book, denotes the science of which law, as such, is the 
 subject-matter ; the science which deals, not with the 
 commands and prohibitions whereof the law consists, but 
 with the law itself, its nature, its origin, its history, its 
 divisions, its forms, its interpretation, and the methods 
 of its application to practical affairs. Of law in general, 
 considered as an essential feature of political society and 
 abstracted from all definite systems of law, there is a uni- 
 versal science known as General Jurisprudence ; and of 
 every system of law, differing as each does from every 
 other in some of its. exterior characteristics, there is a 
 special science, — the Particular Jurisprudence of the 
 State in which that law prevails. Thus American Juris- 
 prudence is a special science, treating of the laws of the 
 United States and of the States of which the American 
 Union is composed. 
 
 Manifestly some knowledge of this science is important 
 to every educated citizen who aspires to the intelligent 
 discharge of his political duties; a more intimate acquaint- 
 ance with it is indispensable to the lawyer and the judge 
 who participate in the interpretation and 'administration of 
 the law; while for the jurist and the legislator the mastery 
 over it must be still broader and more profound. In the 
 present work it has been the purpose of the author to 
 assist the various grades of students in their preparation 
 for these different positions in political life. In writing
 
 Vlll PREFACE. 
 
 the text be has had in view the needs of those who are 
 pursuing courses in political science in our universities 
 and colleges, and has endeavored to make it complete 
 enough to afford them all the information which the edu- 
 cated citizen requires and simple enough to be compre- 
 hended by those who have no technical knowledge of the 
 law. In prescribing the collateral readings from the 
 reports and treatises he has attempted to open to the pro- 
 fessional student a wider field of research, and to guide the 
 advanced explorer of the history and philosophy of our law 
 to those rich treasures of legal thought and learning which 
 have been accumulating in the decisions of our courts and 
 in the text-books of our law-writers for a thousand years. 
 
 In reference to these readings it seems scarcely necessary 
 to remark that the treatises selected are but a fragment of 
 the vast literature devoted to this subject. It was the aim 
 of the author to present the student with a small number 
 of representative works, of high authority and easily acces- 
 sible, through which he might be conducted, if he desired it, 
 into investigations even more extensive than the scope of 
 this elementary manual would permit it to prescribe. . But 
 in no case has this choice of treatises been determined by 
 the harmony of their opinions upon open questions with 
 those which the author has himself expressed. On the 
 contrary, as the student will soon discover, there are 
 marked differences in their conclusions concerning the 
 nature and authority of law, the origin of legal rights, 
 and various other matters, caused by the different premises 
 adopted by the writers and the fundamental principles 
 from which their development of the philosophy of law 
 proceeds. Of these differences no particular notice is 
 taken in the text, and no direct attempt is made to expose 
 and contravene the errors which, in the author's judgment, 
 some of these treatises contain. Destructive criticism, if 
 ever profitable, is out of place in a work designed, in part
 
 PKEFACE. IX 
 
 at least, to introduce beginners to a subject, and hence the 
 author has contented himself with stating his own convic- 
 tions and the reasoning which supports them ; leaving the 
 student to encounter and consider different opinions when 
 his knowledge of the science has become more intimate 
 and his judgment more mature. 
 
 In making the selection of readings from the decided 
 cases the author has been confronted with much graver 
 difficulties. To the immense number of decisions pub- 
 lished in the Federal and State reports must be added 
 those of the English courts from the first Year-fBook to 
 the present day, if one would fairly estimate the volume of 
 case-law which more or less directly bears upon the ques- 
 tions pertaining to a science of which the law itself is the 
 subject. To bring the readings from the cases within the 
 student's practical attainment it was obviously necessary to 
 make the number comparatively few, and to select these 
 from series of reports most likely to be within his reach 
 and to be able to lead him by their notes and references 
 into contact with other cases, both English and American, 
 in which the points decided had also been discussed. 
 After long deliberation the author therefore finally deter- 
 mined to confine himself in these citations to the reports 
 of the Supreme Court of the United States, and to the 
 series of State cases known as the American Decisions, 
 American Reports, and American State Reports. That 
 the Supreme Court Reports should occupy the position 
 here accorded to them no one will doubt who calls to 
 mind the fact that, to a great extent, the science of Ameri- 
 can Jurisprudence has been created by the decisions of that 
 august tribunal. The reasons for adopting the series of 
 American Decisions, Reports, and State Reports were that 
 it is probably now accessible to a greater multitude of 
 students than the whole body of State decisions or than 
 any other series covering an equal field ; that it is a fair
 
 X PREFACE. 
 
 representative collection of State cases, chronologically ar- 
 ranged, from the earliest American reporters to the present 
 time ; and that its copious notes, cross-references, and 
 comparative analyses of cases decided on the same point 
 in different States render it particularly helpful to the 
 student of American Law as an entire system rather than 
 as a body of mere local rules. Students who are unable to 
 make use of this series, or prefer to read the cases in the 
 original State reports, will find a Reference Table at the 
 commencement of this volume, indicating the page and 
 number of the State report from which each cited case is 
 taken. This course, however, will prove less profitable to 
 the student since the notes contained in the series followed 
 by the author are absent from the State reports, and as 
 many cases have been cited principally on account of these, 
 the reader of the decision in the State reports will some- 
 times be compelled to satisfy himself with a judicial 
 opinion of comparatively slight importance, when in the 
 other series he would find it made the text for a general 
 discussion of the law of exceeding interest and value. 
 
 It is further to be noted that the citations appended to 
 the paragraphs are, in every instance, readings provided for 
 the student, not mere authorities to support the positions 
 taken in the text. The author has exercised all possible 
 pains not to recommend an entire case unless the entire 
 case is worthy of the careful perusal and consideration of 
 the reader, and not to repeat a case unless its bearing upon 
 the points to which it is subsequently cited is too impor- 
 tant to justify him in excluding it. Moreover, the cases 
 should be read in the order in which they are arranged ; 
 for the arrangement of the cases, like their selection, has 
 been made with a regard to the requirements of the student 
 and cannot be departed from without some loss to him. 
 It is not, however intended that students of all grades 
 should read and master all the different citations. This
 
 PREFACE. XI 
 
 should be the task reserved for the advanced scholar in 
 our graduate schools of law. For the college student in 
 political science the text alone, or with a few of the more 
 simple readings from the treatises, will be sufficient ; for 
 the professional law-student the text, the greater portion 
 of the treatises, and a selection made by his instructor 
 from the cases, may be advantageously prescribed. 
 
 In issuing this volume from the press the author cannot 
 refrain from expressing the pleasure it has given him, 
 while preparing it, to travel again the paths of legal 
 learning along which for so many years, in conjunction 
 with the late Professor Edward J. Phelps, he conducted 
 the academic seniors of Yale University. Few teachers 
 have ever equalled Professor Phelps in his high apprecia- 
 tion and in his ability as an expounder of American Juris- 
 prudence. It is the ceaseless regret of his colleagues and 
 his pupils that he has not left behind him a treatise on 
 this subject, which, though it could not augment, might 
 serve to perpetuate his fame. 
 
 WILLIAM C. ROBINSON. 
 
 Washington, D. C, September, 1900.
 
 TABLE OF CONTENTS. 
 
 Reference Table xxxi 
 
 List of Treatises cited l yl1 
 
 List of Reports cited lviii 
 
 CHAPTER I. 
 
 OF THE NATURE AND AUTHORITY OF LAW. 
 
 § 1. Of the Essential Nature of Law. 
 
 2. Of the Eternal Law. 
 
 3. Of Natural Law. 
 
 4. Of Positive Law. 
 
 5. Of Divine Law. 
 
 6. Of Human Law. 
 
 7. Of Human Lawgivers: the State. 
 
 8. Of the Validity of Laws Made by the State. 
 
 9. Of the Uniformity of Laws. 
 
 10. Of the Civil Law and the Common Law. 
 
 11. Of International Law. 
 
 12. Of Maritime Law. 
 
 13. Of Ecclesiastical Law. 
 
 14. Of the Different Significations of the phrase " Common Law.' 
 1"). Of the Common Law in the United States. 
 
 16. Of the Subjects-Matter of Law : Persons and Things. 
 
 CHAPTER II. 
 
 OF NATURAL PERSONS. 
 SECTION I. 
 
 OF THE EXISTENCE, IDENTITY, AND NAMES OF NATURAL 
 PERSONS. 
 
 § 17. Of the Legal Existence of Natural Persons. 
 18. Of the Legal Death of Natural Persons.
 
 XIV TABLE OF CONTENTS. 
 
 § 19. Of the Legal Identity and Names of Natural Persons. 
 
 20. Of Identity of Names: Idem Sonans- 
 
 21. Of Christian Names, Surnames, and Descriptive Names. 
 
 22. Of the Voluntary Adoption or Change of Personal Names. 
 
 SECTION II. 
 
 OF STATUS. 
 
 Article I. 
 
 Of Status in General. 
 
 § 23. Of the Nature of Status. 
 24. Of Normal and Abnormal Status. 
 
 Article II. 
 Of the Status of Infants. 
 
 § 25. Of Infancy and its Inherent Disabilities. 
 
 26. Of the Control of an Infant over las Person and Property. 
 
 27. Of the Power of an Infant to make a Contract. 
 
 28. Of the Power of an Infant to Make a Contract, continued. 
 
 29. Of the Liability of an Infant for his Torts. 
 
 30. Of the responsibility of an Infant for Crime. 
 
 31. Of the Subjection of Infauts to the Decisions of the Courts. 
 
 Article III. 
 Of the Status of Insane Persons. 
 
 § 32. Of Insanity in General. 
 
 33. Of the Varieties and Degrees of Insanity. 
 
 34. Of the Presumption of Sanity : Burden of Proof : Evidence of 
 
 Insanity. 
 
 35. Of the Power of an Insane Person to make a Contract. 
 
 36. Of the Power of an Insane Person to make a Valid Will. 
 
 37. Of the Liability of an Insane Person for his Torts. 
 
 38. Of the Responsibility of an Insane Person for Crime. 
 
 39. Of the Standing of an Insane Person in the Courts. 
 
 40. Of the Guardianship of Insane Persons.
 
 TABLE OF CONTENTS. XV 
 
 Article IV. 
 Of the Status of Married Women. 
 
 § 41. Of the Legal Character and Validity of Marriage. 
 
 42. Of the Status of Married Women under our Ancient Laws. 
 
 43. Of the Status of Married Women under our Present Laws. 
 
 Article V. 
 
 Of the Status of Persons under Coercion or Duress. 
 
 § 44. Of the Nature of Coercion and Duress. 
 45. Of the Liability of Persons under Duress on their Contracts or 
 for their Crimes. 
 
 Article VI. 
 Of the Status of Public Officers, 
 
 § 46. Of the Nature of Public Office. 
 
 47. Of the Incidents of Public Office. 
 
 48. Of Public Officers. 
 
 49. Of Officers De Jure and Officers De Facto. 
 
 50. Of Ministerial Officers and Judicial Officers. 
 
 51. Of the Responsibility of Public Officers for their Acts and 
 
 Defaults. 
 
 52. Of the Remedies and Penalties for Breaches of Official Duty. 
 
 53. Of the Exemption of Public Officers from the Liabilities of 
 
 Normal Status. 
 
 Article VII. 
 
 Of the Status of Aliens and Other Persons who are not 
 Citizens. 
 
 § 54. Of Citizenship. 
 
 55. Of the Right to Citizenship. 
 
 56. Of Citizenship of the United States by Birth and by Adoption. 
 
 57. Of Citizenship of the Individual States of the American Union. 
 
 58. Of the Political Rights of Citizens. 
 
 59. Of the Personal Risrhts of Citizens.
 
 Xvi TABLE OF CONTENTS. 
 
 § 60. Of the Duties of Citizens. 
 
 61. Of the Abnormal Status of Aliens. 
 
 62. Of Recent Ameliorations in the Abnormal Status of Aliens. 
 
 63. Of the Abnormal Status of Indians. 
 
 64. Of the Abnormal Status of Slaves. 
 
 65. Of the Dependence of Status upon Law. 
 
 SECTION III. 
 
 OF DOMICILE. 
 
 § 66. Of the Nature of Domicile. 
 
 67. Of the Locality of Domicile. 
 
 68. Of the Domicile of Origin. 
 
 69. Of Change of Domicile. 
 
 70. Of the " Law of Domicile." 
 
 CHAPTER III. 
 
 OF ARTIFICIAL PERSONS OR CORPORATIONS. 
 SECTION I. 
 
 OF THE NATURE AND ATTRIBUTES OF CORPORATIONS. 
 
 § 71. Of the Nature and Purpose of Corporations. 
 
 72. Of the Creation of Corporations. 
 
 73. Of the Charter of a Corporation. 
 
 74. Of the Franchises and Powers of a Corporation. 
 
 75. Of the Officers and Agents of Corporations. 
 
 76. Of Acts Ultra Vires. 
 
 77. Of the Name and Identity of a Corporation. 
 
 78. Of the Status of a Corporation. 
 
 79. Of the Domicile of a Corporation. 
 
 80. Of the Control of the State over its Corporations. 
 
 81. Of the Combination and Consolidation of Corporations. 
 
 82. Of the Dissolution of Corporations. 
 
 83. Of the Distinction between the Personalities of a Corporation 
 
 and its Members. 
 
 84. Of Corporations De Jure. 
 
 85. Of Corporations De Facto. 
 
 86. Of Quasi Corporations. 
 
 • s 7. Of Unincorporated Associations.
 
 TABLE OF CONTENTS. XVU 
 
 § 88. Of the Classes of Corporations: Corporations Sole: Corpora- 
 tions Aggregate. 
 89. Of the Classes of Corporations : Public, Private, and Quasi 
 Public Corporations. 
 
 SECTION II. 
 
 OF PRIVATE CORPORATIONS. 
 
 § 90. Of the Attributes of Private Corporations. 
 
 91. Of the Organization of Private Corporations. 
 
 92. Of the Powers of Private Corporations. 
 
 93. Of Eleemosynary Corporations. 
 
 94. Of Civil Corporations. 
 
 95. Of Stock Corporations. 
 
 96. Of Shares of Stock. 
 
 97. Of the Liabilities of Stockholders. 
 
 98. Of the Ownership and Transfer of Stock. 
 
 99. Of the Rights and Liabilities of Stockholders in Reference to 
 
 Outside Parties. 
 
 SECTION III. 
 
 OF QUASI PUBLIC CORPORATIONS. 
 
 100. Of the Peculiar Franchises of Quasi Public Corporations. 
 
 101. Of the Right to Occupy Public Property. 
 
 102. Of the Right of Eminent Domain. 
 
 103. Of the Right to a Monopoly. 
 
 104. Of the Right to Take Tolls. 
 
 105. Of the Control of the State over Quasi Public Corporations. 
 
 SECTION IV. 
 
 OF PUBLIC ( ORPORATIOXS. 
 
 106. Of the Nature and Powers of Public Corporations. 
 
 107. Of the Legislative Powers of Public Corporations. 
 
 108. Of the Administrative Powers of Public Corporations. 
 
 109. Of the Liability of Public Corporations in Reference to 
 
 Streets, Sewers, Bridges, etc. 
 
 110. Of the Liability of Public Corporations for the Conduct of 
 
 their Officers and Agents. 
 
 111. Of the Control of the State over its Public Corporations. 
 
 112. Of the State as a Corporation.
 
 Xviii TABLE OF CONTENTS. 
 
 CHAPTER IV. 
 
 OF THINGS. 
 
 § 113. Of the Nature of Things. 
 
 114. Of Things Corporeal and Incorporeal. 
 
 115. Of Incorporeal Things which Exist only in Contemplation of 
 
 Law. 
 
 116. Of Things Movable and Immovable. 
 
 117. Of Things Real and Personal. 
 
 118. Of the Authority of the State over Things. 
 
 CHAPTER V. 
 
 OF RIGHTS, DUTIES, WRONGS, AND REMEDIES. 
 
 » 
 
 SECTION I. 
 
 OF RIGHTS. 
 
 § 119. Of the Purpose of Law. 
 
 120. Of the Origin of Rights. 
 
 121. Of the Legal Definition and Assertion of Essential Rights. 
 
 122. Of the Legal Definition and Assertion of Incidental Rights. 
 
 123. Of Rights Public and Private. 
 
 124. Of Rights Normal and Abnormal. 
 
 125. Of Rights in Rem and in Personam. 
 
 126. Of Rights Antecedent and Remedial. 
 
 127. Of Normal Antecedent Rights in Rem. 
 
 128. Of Normal Antecedent Rights in Personam. 
 
 129. Of Normal Remedial Rights in Rem. 
 
 130. Of Normal Remedial Rights in Personam. 
 
 131. Of the Extinguishment and Transfer of Legal Rights. 
 
 SECTION II. 
 
 OF DUTIES. 
 
 § 132. Of the Relation between Rights and Duties. 
 
 133. Of Legal Duties. 
 
 134. Of the Classes of Legal Duties.
 
 TABLE OF CONTENTS. xix 
 
 § 135. Of the Relation of Duty to Status. 
 
 136. Of Acts and Forbearances. 
 
 137. ( »f the Distinction between Positive and Negative Duties. 
 
 138. Of the Extinguishment of Duties. 
 
 SECTION III. 
 
 OF WRONGS. 
 
 139. Of the Nature and Scope of Legal Wrongs. 
 
 140. Of Malfeasances, Misfeasances, and Nonfeasances. 
 
 141. Of Public Wrongs. 
 
 142. Of the Ingredients of a Private Wrong. 
 
 143. Of the Distinction between Torts and Breaches of Contract. 
 
 144. Of Breaches of Contract. 
 
 145. Of Torts. 
 
 146. Of the Relation of Wrongs to Status. 
 
 147. Of the Extinguishment of Wrongs. 
 
 SECTION IV. 
 
 OF REMEDIES. 
 
 § 148. Of the Relation of Remedies to Wrongs. 
 
 149. Of the Primary Purpose of Remedies. 
 
 150. Of Remedies which Place the Parties in Statu Quo. 
 
 151. Of Compensatory Remedies for Public Wrongs. 
 
 152. Of Compensatory Remedies for Private Wrongs. 
 
 153. Of Preventive Remedies for Public Wrongs. 
 
 154. Of Preventive Remedies for Private Wrongs. 
 
 155. Of Existing Defects in the Application of Remedies to 
 
 Wrongs. 
 
 SECTION V. 
 
 OF THE LOGICAL AND CHRONOLOGICAL RELATIONS OF RIGHTS, 
 DUTIES, WROMiS, AND REMEDIES. 
 
 § 156. Of the Logical Relations of Rights, Duties, Wrongs, and 
 Remedies. 
 
 157. Of the Chronological Relations of Rights. Duties, Wrongs, 
 
 and Remedies. 
 
 158. Of Legal Rights not yet Defined.
 
 XX TABLE OF CONTENTS. 
 
 § 159. Of the Definition of Rights by the Prohibition of Wrongs. 
 
 160. Of the Study of Rights from the Standpoint of Wrongs. 
 
 161. Of the Relation of Preventive Remedies to the Definition of 
 
 Rights. 
 
 CHAPTER VI. 
 
 OF THE DIVISIONS OF THE LAW. 
 § 162. Of the Classification of the Rules of Law. 
 
 SECTION I. 
 
 OF SUBSTANTIVE LAW AND ADJECTIVE LAW. 
 
 § 163. Of the Distinction between Substantive Law and Adjective 
 Law. 
 
 164. Of the Rules of Substantive Law. 
 
 165. Of the Rules of Adjective Law. 
 
 SECTION II. 
 
 OF NATIONAL LAW AND INTERNATIONAL LAW. 
 
 § 166. Of the Source of National Law. 
 
 167. Of the Authority of National Law over the State. 
 
 168. Of the Authority of National Law over the Citizen. 
 
 169. Of the Authority of Two or more National Laws in the Same 
 
 State. 
 
 170. Of the Territorial Jurisdiction of National Law. 
 
 171. Of International Law. 
 
 172. Of the Origin and Development of International Law. 
 
 173. Of the Territorial Jurisdiction of International Law. 
 
 174. Of the Topical Jurisdiction of International Law. 
 
 SECTION III. 
 
 OF PRIVATE LAW AND PUBLIC LAW. 
 
 § 175. Of the Distinction between Private Law and Public Law. 
 
 176. Of the Divisions of Private Law. 
 
 177. Of the Relation of Private Law to National Law and Inter- 
 
 national Law. 
 
 178. Of the Divisions of Public Law.
 
 TABLE OF CONTENTS. XXI 
 
 SECTION IV. 
 
 OF FEDERAL LAW AND STATE LAW. 
 
 § 179. Of the Distinction between Federal Law and State Law. 
 
 180. Of the Territorial Jurisdiction of Federal Law and State Law. 
 
 181. Of the Topical Jurisdiction of Federal Law and State Law. 
 
 182. Of the Concurrent Topical Jurisdiction of Federal Law and 
 
 State Law. 
 
 183. Of the Judicial Application of Federal Law and State Law. 
 
 SECTION V. 
 
 OF ENGLISH LAW AND AMERICAN LAW. 
 
 § 184. Of the English Portion of our Law. 
 
 185. Of the American Portion of our Law. 
 
 186. Of the Extent to which English Law now enters into our 
 
 Law. 
 
 187. Of the Dependence of the American Portion of our Law upon 
 
 the English Portion. 
 
 188. Of the Interpretation of the English Portion of our Law by the 
 
 English Decisions. 
 
 189. Of the American States in which the English Law has been 
 
 Adopted as a Portion of their Law. 
 
 190. Of the Presumption that the English Portion of our Law is 
 
 Identical in all our American States. 
 
 CHAPTER VII. 
 
 OF THE JURISDICTION OF LAWS. 
 
 § 191. Of the Recognition and Enforcement by one State of the Laws 
 of other States. 
 
 192. Of the Present Enforcement of Laws already Repealed. 
 
 193. Of the Jurisdiction of Laws : " Conflict of Laws: " " Private 
 
 International Law." 
 
 SECTION I. 
 
 OF THE JURISDICTION OF THE LAWS AS DEPENDENT UPON 
 
 PLACE. 
 
 § 194. Of the Lex Fori. 
 
 195. Of the Laws which may Supersede the Lex Fori.
 
 XXII TABLE OF CONTENTS. 
 
 § 196. Of the Lex Ligeantice. 
 
 197. Of the Lex Domicilii. 
 
 198. Of the Lex Rei Sitae. 
 
 199. Of the Lex Loci Actus. 
 
 200. Of the Lex Loci Contractus. 
 
 201. Of the Lex Solutionis. 
 
 202. Of the Lex Loci Pacti. 
 
 203. Of the Extent of Comity and its Subordination to Law. 
 
 SECTION II. 
 
 OF THE JURISDICTION OF THE LAWS AS DEPENDENT ON TIME. 
 
 § 20-1. Of the Stability of Rights under Necessary Changes in the 
 Laws. 
 
 205. Of the Validity of Transactions Completed under Laws since 
 
 Repealed. 
 
 206. Of the Impregnability of Vested Rights of Property. 
 207- Of the Inviolability of Contract Obligations. 
 
 208. Of Ex Post Facto Laws. 
 
 209. Of Retrospective Laws. 
 
 210. Of the Standard of the Jurisdiction of Laws as Dependent 
 
 upon Time. 
 
 SECTION III. 
 
 OF THE PROOF OF LAWS. 
 
 § 211. Of the Mode of Proving Domestic and Foreign Laws. 
 
 212. Of the Proof of international, Federal, and English Law. 
 
 213. Of the Proof of Special Legislative Enactments. 
 
 CHAPTER VIII. 
 
 OF THE FORMS OF LAW. 
 
 § 214. Of the Causes of the Variety in the Forms of Law. 
 215. Of the Unwritten Law and the Written Law. 
 
 SECTION I. 
 
 OF THE UNWRITTEN LAW. 
 
 £ 216. Of the Origin of the Unwritten Law. • 
 217. Ol the Nature and Obligation of Customs.
 
 TABLE OF CONTENTS. win 
 
 § 218. Of the Mode in which the Obligation of Customs is Enforced. 
 
 219. Of the Transmutation of Customs into Retrospective Laws. 
 
 220. Of the Transmutation of Customs into Prospective Laws. 
 
 221. Of the Customs Entitled to .Judicial Sanction. 
 
 222. Of the Antiquity of Customary Law. 
 
 " 223. Of the Rise and Sanction of Xew Customs. 
 
 224. Of the History of the Unwritten Law. 
 
 225. Of the Unwritten Law of the States of the American Union. 
 2i'f5. Of the Unwritten Law of the United States. 
 
 1'27. Of the Expression of the Unwritten Law in Maxims, Defi- 
 nitions, and Judicial Decisions. 
 
 228. Of the Number and Nature of the Maxims. 
 
 229. Of the Legal Scope of the Maxims. 
 
 230. Of the Definitions of the Unwritten Law. 
 
 231. Of Judicial Decisions. 
 
 232. Of the Treatises and Reports. 
 
 233. Of the Principal Treatises before the Revolution. 
 
 234. Of the Principal Reports before the Revolution. 
 
 235. Of Treatises and Reports in England and the United States 
 
 since the Revolution. 
 
 SECTION II. 
 
 OF THE WRITTEN LAW. 
 
 § 230. Of the Nature of the Written Law. 
 
 237. Of the Origin of the Written Law. 
 
 238. Of the Subordination of the Written Law to the Unwritten 
 
 Law. 
 
 239. Of the Divisions of the Written Law. 
 
 Article I. 
 Of Constitutions. 
 
 § 240. Of the Nature of Constitutions. 
 
 241. Of the Preparation and Adoption of a Written Constitution. 
 
 242. Of the Proper Contents of Written Constitutions. 
 
 243. Of tin; Date at which a Written Constitution Takes Effect. 
 
 244. Of the Prospective Operation of Written ('(institutions. 
 
 245. Of the Amendment of Written Constitutions. 
 
 2 10. Of the History of the English and American Constitutions. 
 JIT. Of the Nature of the Written Constitutions of the states of 
 
 the American Union. 
 248. Of the Unwritten Constitutions of the States of the American 
 Union
 
 XXIV TABLE OF CONTENTS. 
 
 § 249. Of the Xature of the Federal Constitution. 
 
 250. Of the Supremacy of the Federal Constitution in its own Field 
 
 of Jurisdiction. 
 
 251. Of the Contents of the Fedei'al and State Constitutions. 
 
 252. Of the Interpretation of the Federal and State Constitutions by 
 
 the Unwritten Law. 
 
 253. Of the Constitutionality of Treaties and Statutes. 
 
 Article II. 
 Of Treaties. 
 
 § 254. Of the Nature of Treaties. 
 
 255. Of the Preparation and Adoption of Treaties. 
 
 256. Of the Contents of Treaties. 
 
 257. Of the Effect of Treaties. 
 
 258. Of the Supremacy of Treaties. 
 
 259. Of Treaties as Portions of the Written Law. 
 
 260. Of the Amendment and Abrogation of Treaties. 
 
 Article III. 
 
 Of Codes. 
 
 § 261. Of the Xature of Codes. 
 
 262. Of the Legal Importance of Codes. 
 
 Article IV. 
 
 Of Statutes. 
 
 § 263. Of the Nature of Statutes. 
 
 264. Of Legislative Authority and the Public Bodies in which it 
 
 Resides. 
 
 265. Of the Validity of Legislative Acts. 
 
 266. Of the Contents and Different Parts of Statutes. 
 
 267. Of the Date when Statutes Take Effect. 
 
 268. Of the Division of Statutes into Declaratory and Remedial, 
 
 Affirmative and Negative. 
 
 269. Of the Division of Statutes into Public and Private. 
 
 270. Of the Division of Statutes into General and Local. 
 
 271. Of the Division of Statutes into Perpetual and Temporary. 
 
 272. Of the Division of Statutes into Mandatory and Directory. 
 
 273. Of the Division of Statutes into Prospective and Retrospective. 
 
 274. Of the Validity of Statutes in General.
 
 TABLE OF CONTENTS. XXV 
 
 275. Of the Validity of Statutes as Affected by the Relations of the 
 
 Legislative Body to the State. 
 
 276. Of the Validity of Statutes as Affected by the Inherent 
 
 Limitations of Legislative Bodies. 
 
 277. Of the Validity of Statutes as Affected by the State and Fed- 
 
 eral Constitutions. 
 
 278. Of the Jurisdiction of Courts over Questions concerning the 
 
 Constitutionality and Validity of Statutes. 
 
 279. Of the Suspension and Expiration of Statutes. 
 
 280. Of the Repeal of Statutes. 
 
 281. Of the Effect of the Repeal of a Statute. 
 
 282. Of the Validity of the Legislative Acts of Subordinate Legis- 
 
 lative Bodies. 
 
 CHAPTER IX. 
 
 OF THE INTERPRETATION OF LAW. 
 
 § 283. Of the Necessity for an Authoritative Interpretation of the 
 Law. 
 
 SECTION I. 
 
 OF THE INTERPRETATION OF THE UNWRITTEN LAW. 
 
 § 284. Of the Variety of the Standards Employed in the Interpreta- 
 tion of the Unwritten Law. 
 
 285. Of Judicial Decisions as Interpreters of the Unwritten Law. 
 
 286. Of the Comparative Value of Different Judicial Decisions as 
 
 Interpreters of the Unwritten Law. 
 
 287. Of the Value of Judicial Decisions upon Analogous Cases as 
 
 Interpreters of the Unwritten Law. 
 
 288. Of Judicial Decisions as Interpreters of the Authoritative 
 
 Verbal Expressions of the Unwritten Law. 
 
 289. Of Self-Evident Principles and Popular Customs as Inter- 
 
 preters of the Unwritten Law. 
 
 290. Of the Writings of Jurists as Interpreters of the Unwritten 
 
 Law. 
 
 291. Of the Reciprocal Interpretative Value of Cognate Branches of 
 
 Law. 
 
 292. Of Finality in the Interpretation of the Unwritten Law.
 
 XXVI TABLE OF CONTENTS. 
 
 SECTION II. 
 
 OF THE INTERPRETATION OF THE WRITTEN LAW. 
 
 § 293. Of the Function of Interpretation in Reference to the Written 
 Law. 
 294. Of the Interpretation of Ordinary Words. 
 29-3. Of the Interpretation of Technical Words. 
 
 296. Of the Interpretation of Ambiguous Words by the Context. 
 
 297. Of the Interpretation of Ambiguous Words by the Title, 
 
 Preamble, Provisos, or Punctuation. 
 
 298. Of the Interpretation of Ambiguous Words by Statutes in 
 
 Pari Materia. 
 
 299. Of the Interpretation of Ambiguous Words by Judicial De- 
 
 cisions. Popular Custom, or General Opinion. 
 
 300. Of the Interpretation of Ambiguous Words by the Apparent 
 
 Intent of the Legislative Body in Employing Them. 
 
 301. Of the Rule that Certain Statutes must be Strictly Interpreted. 
 
 302. Of the Rule that Certain Statutes must be Liberally Inter- 
 
 preted. 
 
 303. Of the Applicability of the Foregoing Rules to all Verbal 
 
 Forms of Law. 
 
 CHAPTER X. 
 
 OF THE APPLICATION OF LAW. 
 § 304. Of the Practical Administration of Law. 
 
 SECTION" I. 
 
 OF COURTS IN GENERAL. 
 
 § 305. Of the Nature of Courts. 
 
 306. Of the General Jurisdiction of Courts. 
 
 307. Of the Special Jurisdiction of Courts. 
 30S. Of the Indirect Jurisdiction of Courts. 
 
 309. Of the Inherent Powers of Courts. 
 
 310. Of the Terms or Sessions of Courts. 
 
 311. Of the Proceedings and Judgments of Courts. 
 
 312. Of Courts of Record and Courts not of Record. 
 
 313. Of Courts of Superior, Inferior, General, or Limited Juris- 
 
 diction.
 
 TABLE OF CONTENTS. XXV11 
 
 § 314. Of Appellate, Civil. Criminal, or Provisional Courts. 
 
 315. Of Legal Controversies. 
 
 316. Of the Various Systems of Courts. 
 
 SECTION II. 
 
 OF THE COURTS <>F COMMON LAW. 
 
 § 317. Of the Origin of the Courts of Common Law. 
 
 318. Of the Topical Jurisdiction of the Courts of Common Law. 
 
 319. Of the Number of the Parties Litigant in the Courts of Com- 
 
 mon Law. 
 
 320. Of the Redress Obtainable in Courts of Common Law. 
 
 321. Of the Limitations upon the Jurisdiction of the Courts of 
 
 Common Law. 
 
 SECTION III. 
 
 OF THE COURTS OF EQUITY. 
 
 § 322. Of the Origin of the Courts of Equity. 
 
 323. Of the Development of Courts of I^quity. 
 
 324. Of the Conflict between the Courts of Equity and the Courts 
 
 of Common Law. 
 
 325. Of the Line of Demarcation between the Jurisdictions of 
 
 Courts of Equity and Courts of Common Law. 
 
 326. Of the Topical Jurisdiction of the Courts of Equity. 
 
 327. Of the Indirect Jurisdiction of Courts of Equity. 
 
 328. Of the Limitations of the Jurisdiction of the Courts of Equity. 
 320. Of the Proceedings in Courts of Equity. 
 
 330. Of the Special Jurisdiction of Courts of Equity over Infants, 
 
 Insane Persons, and Incapables. 
 
 331. Of the Merger of the Courts of Equity and the Courts of Com- 
 
 mon Law. 
 
 SECTION IV. 
 
 OF THE COURTS OP PROBATE. 
 
 § 332. Of the Nature and Origin of Probate Jurisdiction. 
 
 333. Of the Courts of Probate in the United States. 
 
 334. Of the Ordinary and Special Jurisdiction of the Courts of 
 
 Probate. 
 835. Of the Primary and Ancillary Jurisdiction of the Courts of 
 Probate.
 
 XXV111 TABLE OF CONTENTS. 
 
 § 336. Of the Jurisdiction of the Courts of Probate over Testate 
 Estates. 
 
 337. Of the Jurisdiction of the Courts of Probate over Intestate 
 
 Estates. 
 
 338. Of the Jurisdiction of the Courts of Probate over Guardians 
 
 and Trustees. 
 
 339. Of the Importance of Courts of Probate. 
 
 SECTION V. 
 
 OF THE COURTS OF ADMIRALTY. 
 
 § 340. Of the Nature of Admiralty Jurisdiction, 
 
 341. Of the Origin and Development of Admiralty Jurisdiction. 
 
 342. Of Maritime Torts and Contracts. 
 
 343. Of the Concurrent Jurisdiction of the Courts of Admiralty and 
 
 the Courts of Equity and Common Law. 
 
 344. Of the Topical Jurisdiction of Courts of Admiralty. 
 
 345. Of Admiralty Jurisdiction in Rem. 
 
 346. Of Proceedings in Admiralty. 
 
 347. Of the Courts Exercising Admiralty Jurisdiction in England 
 
 and the United States. 
 
 SECTION VI. 
 
 OF COURTS MARTIAL, MILITARY COURTS, AND PROVISIONAL 
 
 COURTS. 
 
 § 348. Of Courts of Extraordinary Jurisdiction. 
 
 349. Of Courts Martial. 
 
 350. Of Military Courts. 
 
 351. Of Provisional Courts. 
 
 SECTION VII. 
 
 OF THE FEDERAL AND STATE COURTS 
 
 352. Of the Federal Courts. 
 
 353. Of the Supreme Court of the United States. 
 
 354. Of the Circuit Courts of Appeals. 
 
 355. Of the Circuit Courts. 
 
 356. Of the District Courts. 
 
 357. Of the Court of Claims and the Courts of the District of Co- 
 
 lumbia.
 
 TABLE OF CONTENTS. XXIX 
 
 § 358. Of the Concurrent Jurisdiction of Federal Courts and State 
 Courts. 
 
 359. Of the Common Law and Equity Powers of the Federal 
 
 Courts. 
 
 360. Of the Limited Topical Jurisdiction of the Federal Courts. 
 301. Of the Territorial Jurisdiction of the Federal Courts. 
 
 362. Of the State Courts and Territorial Courts. 
 
 363. Of Writs of Error, and the Removal of Causes, from State 
 
 Courts to the Federal Courts. 
 
 364. Of the Future Development of the Judicial Systems of the 
 
 United States. 
 
 CHAPTER XL 
 
 OF FICTIONS AND PRESUMPTIONS. 
 
 § 365. Of the Meeting of Law and Fact in the Borderland of Fictions 
 and Presumptions. 
 366. Of the Necessity for Fictions and Presumptions. 
 
 SECTION I. 
 
 OF LEGAL FICTIONS. 
 
 § 367. Of the Nature of Legal Fictions. 
 
 368. Of the Falsehood and Possibility of the Facts Assumed in a 
 
 Legal Fiction. 
 
 369. Of the Subordination of Legal Fictions to Essential Justice. 
 
 370. Of Fictions as Substitutes for Legislation. 
 
 371. Of the Classes of Legal Fictions. 
 
 372. Of the Invention and Abandonment of Fictions. 
 
 SECTION II. 
 
 OF PRESUMPTIONS. 
 
 § 373. Of the Nature of Presumptions. 
 374. Of the Distinctions between Presumptions of Law aud Pre- 
 sumptions nf Fact. 
 :>7.">. of the Classes of Presumptions pf Law. 
 
 376. Of the Classes of Presumptions of Fact. 
 
 377. Of Mixed Presumptions. 
 
 378. Of the Number and Variety of Presumptions.
 
 XXX TABLE OF CONTENTS. 
 
 § 379. Of Presumptions against Ignorance and Wrong. 
 3S0. Of Presumptions that Persons Assert their Rights. 
 
 381. Of Presumptions that the Course of Nature is Observed. 
 
 382. Of Presumptions that the General Usages of Society are Ob- 
 
 served. 
 
 383. Of Presumptions in Reference to Time. 
 
 384. Of Presumptions that Existing States of Fact Continue. 
 
 385. Of Presumptions in Reference to Rights, Duties, and Lia- 
 
 bilities. 
 
 386. Of Conflicting Presumptions. 
 
 387. Of the Relation of Legal Fictions and Presumptions to the 
 
 Law of Evidence. 
 
 CHAPTER XII. 
 
 OF THE DEPARTMENTS OF LAW. 
 
 § 388. Of the Practical Classification of Laws. 
 
 389. Of the Law of Real Property. 
 
 390. Of the Law of Civil Actions. 
 
 391. Of the Laws of Practice, Pleading, and Evidence. 
 
 392. Of the Law of Crimes. 
 
 393. Of the Law of Torts. 
 
 394. Of the Law of Domestic Relations. 
 
 395. Of the Law of Personal Property. 
 
 396. Of the Law of Estates. 
 
 397. Of the Law of Contracts. 
 
 398. Of the Law of Corporations. 
 
 399. Of the Law of Equity. 
 
 400. Of the Law of Admiralty. 
 
 401. Of Constitutional Law. 
 
 402. Of International Law. 
 
 Index Page 365
 
 REFERENCE TABLE 
 
 SHOWING THE VOLUMES AND PAGES OF THE STATE REPORTS IN 
 WHICH THE CASES CITED IN THE TEXT MAY BE FOUND. 
 
 §6. 
 
 54 I). 217 
 
 7. 
 
 79 I). 123 
 
 8. 
 
 20 I). 360 
 
 
 48 1). 178 
 
 
 79 1). 236. 
 
 13. 
 
 49 1). 008 
 
 
 11 1!. 95 . 
 
 
 49 R. 462 
 
 15. 
 
 15 St. 672 
 
 
 13 St. 290 
 
 16. 
 
 22 R. 529 
 
 17. 
 
 51 I). 248 
 
 
 26 D. 598 
 
 
 43 D. 172 
 
 18. 
 
 5 I). 727 
 
 
 92 1). 698 
 
 
 8 D. 658 
 
 
 2 2 1). 370 
 
 
 96 I). L86 
 
 
 91 I). 523 
 
 
 47 R. 158 
 
 
 30 R. 746 
 
 
 7:; 1). 122 
 
 19. 
 
 100 I). 53 
 
 
 84 1). 51 . 
 
 
 15 D. 168 
 
 20. 
 
 13 1>. 2S2 
 
 
 B9 D. 157 
 
 
 27 St. 783 
 
 21 
 
 i:; I). 597 
 
 
 16 1). 163 
 
 
 27 I). 532 
 
 22 
 
 21 R. 179 
 
 11 Ark. 519. 
 
 17 Cal. 199. 
 
 2 Bland (Md.), 209 
 
 2 Ela. 102. 
 
 30 Conn. 149. 
 
 2 Strob. (S. C.) 508. 
 
 58 III. 509. 
 
 97 Ind. 421. 
 
 128 Pa. St. 217. 
 
 4 1 Kansas. 336. 
 
 34 Mich. 283. 
 
 2 Zab. (N.J 
 
 15 Pick. (.Mass.) 266. 
 
 4 S. & M. (Miss.) 99. 
 
 2 Martin (La.), 138. 
 28 Md. 197. 
 
 3 Serg. & R. (Pa.) 490. 
 11 Pick. (Mass.: 
 
 26 Iowa, 170. 
 
 24 Ark. 580. 
 
 107 III. 517. 
 
 46 Wis. 334. 
 
 11 Rich. (S. C.) 5C9. 
 
 31 Md. 38. 
 :;:: Mo. 347. 
 
 6 Cowen (N. Y 
 l.Littdl (Ky.t. 216. 
 1 Morris ( Iowa), 141. 
 
 80S. I 
 
 17 X. II. 286. 
 
 1 Mod. (Ky.) 526. 
 
 6 Vi • 
 
 52 Ind. 347.
 
 :xxii REFERENCE TABLE. §§ 25-28 
 
 § 25. 76 D.~409 21 Ark. 592. 
 
 88 D. 630 37 Vt. 647. 
 
 6 St. 653 29 W. Va. 424. 
 
 51 R. 676 110 111. 16. 
 
 37 R. 412 26 Minn. 389. 
 
 17 IX 179 . 6 Mart. N. S. (La.) 69. 
 
 13 D. 161 3 Marsh. A. K. (Ky.) 280. 
 
 22 D. 652 2 Paige (N. Y.), 419. 
 
 26. 44 I). 708 3 Oilman (111.), 435. 
 
 35 I). 653 25 Wend. (N. Y ) 64. 
 
 53 D. 301 3 N. Y. 312. 
 
 1 St. 307 79 Me. 292. 
 
 6 St. 653 29 W. Va. 424. 
 
 6 St. 676 29 W. Va. 751. 
 
 29 D. 707 2 Green Oh. (N. J.) 220. 
 
 77 D. 534 4 Minn. 412. 
 
 45 D. 399 1 Halst. Ch. (N.J.) 454. 
 
 82 D 223 44 N. H. 321. 
 
 3 St. 115 82 Va. 433. 
 
 2 St. 177 112 Ind. 183. 
 
 14 St. 500 70 Mich. 297. 
 
 39 St. 196 148 111. 536. 
 
 71 D. 105 8 Fla. 144. 
 
 97 D. 449 42 Miss. 194. 
 
 66 D. 515 7 Grny (Mass.), 47'J. 
 
 71 D. 555 . . . .' . . . 45 Me. 367. 
 
 56 D. 257 21 Ala. 501. 
 
 37 St, 118 32 Fla. 499. 
 
 56 D. 206 . . . . . . . 20 Ala. 548. 
 
 27. 75 D. 445 7 Jones (N. C), 14. 
 
 15 D. 612 3 McCoril (S. C), 6 
 
 67 I). 258 4 Jones (N. C), 1. 
 
 42 D. 537 16 Vt. 683. 
 
 40 D. 542 6 Watts & S. (Pa.) 80. 
 
 20 R. 160 54 N. H. 539. 
 
 34 R. 434 57 Miss. 45. 
 
 34 R. 449 57 Miss. 331. 
 
 23 1). 526 8 Greenleaf (Me.), 405. 
 
 26 D. 251 5 Yerger (Tenn.), 41. 
 
 25 St. 708 90 Tenn. 705. 
 
 17 1). 735 4 McCord (S. C.), 241. 
 
 10 I). 709 1 Marsh. A. K. (Ky.) 76. 
 
 7 I). 134 13 Mass. 237. 
 
 21 D. 589 3 Vt. 353. 
 
 57 I). 349 25 N. H. 514. 
 
 28. 23 St. 780 83 Me. 305. 
 
 34 D. 537 5 Whart. (Pa.) 128. 
 
 23 D. 654 13 Pick. (Mass.) 1. 
 
 14 R. 580 110 Mass. 137.
 
 §§ 28-35 
 
 REFERENCE TABLE. 
 
 XXX1U 
 
 §28. 
 
 29. 
 
 30. 
 
 31. 
 
 32. 
 33. 
 
 34 
 
 756 
 194 
 569 
 732 
 314 
 71 
 
 35. 
 
 32 R. 152 
 7 D. 229 
 1 St. 379 
 10 D. 747 
 65 D. 
 65 D. 
 
 18 St. 
 62 D. 
 46 It. 
 
 10 1). 
 84 1). 741 
 
 33 I). 177 
 17 1). 756 
 4 R. 290 
 50 R. 381 
 58 It. 53 
 56 I). 85 
 
 70 D. 494 
 7 D. 592 
 
 4 St. 207 
 45 1). 536 
 
 5 St. 905 
 1 D. 20 . 
 21 D. 70 
 30 I). 425 
 
 19 D. 409 
 74 D. 83 
 23 St. 858 
 89 D. 172 
 74 1). 291 
 7 St. 418 
 44 I). 283 
 29 D. 33 
 17 I). 311 
 83 D. 461 
 
 11 R. 731 
 
 14 St. 879 
 
 16 St. 408 
 27 St. 689 
 
 6 D. 58 . 
 1<» I). 444 
 21 1). 782 
 
 71 1). 431 
 h St. 886 
 1 St. 606 
 
 34 1). 340 
 
 15 1). 354 
 
 17 St. 686 
 71 St. 418 
 
 41 Mich. 191. 
 
 14 Mass. 457. 
 
 67 Md. 53. 
 
 1 Marsh. A. K. (Ky.) 436. 
 
 8 Ind. 195. 
 
 27 Vt. 268. 
 
 100 Mo. 584. 
 
 26 Ala. 446. 
 
 71 Ala. 248. 
 
 1 Marsh. J. J. (Ky.) 236. 
 
 17 Wis. 230. 
 
 10 Vt. 71. 
 
 4 McCord (S. C), 387. 
 
 58 Me. 254. 
 
 60 Wis. 511. 
 
 108 Ind. 472. 
 
 23 Vt. 355. 
 31 Ala. 323. 
 
 1 South (N. J.), 231. 
 84 Ky.457. 
 14 Ohio, 222. • 
 
 24 Texas App. 562. 
 
 1 Kirby (Conn.), 407. 
 
 2 Paige (N. Y.), 79. 
 10 Yerger (Tenn.), 10. 
 
 1 Paige (N. Y.), 178. 
 
 21 111. 137. 
 152 Mass. 585. 
 31 Cal. 273. 
 
 8 Iowa, 17. 
 115 Ind. 148. 
 
 2 Rich. (S. C.) 148. 
 1 Whart. (Pa.) 52. 
 
 1 Bland (Md.), 370. 
 4 Met. (Ky.) 227. 
 62 X. Y. 467. 
 30 S. C. 74. 
 121 Ind. 433. 
 146 Pa. St. 289. 
 
 9 Mass. 225. 
 
 7 Serg. &R. (Pa.) 90. 
 9 Conn. LI 2. 
 7 Iowa, 60. 
 65 Mich. 279. 
 <;i Mich. 384. 
 
 22 Wend. (N. Y.) 520. 
 1 Cowen (N. Y.), 207. 
 Kil X. ('. 515. 
 
 88* Md. 868.
 
 XXXIV 
 
 REFERENCE TABLE. 
 
 §§ 35-40 
 
 § 35. GO D. 310 
 
 83 D. 514 
 55 I). 480 
 45 D. 700 
 89 1). 705 
 39 D. 744 
 22 1). 372 
 1 R. 309 
 47 St. 403 
 66 D. 414 
 92 I). 428 
 97 D 
 
 36. 17 1). 722 
 
 50 D. 329 
 
 51 D. 253 
 14 R. 70 
 86 R. 422 
 8R. 181 
 
 6 R. 703 . 
 
 84 D. 220 
 21 D. 732 
 63 St. 72 
 16 D. 253 
 
 19 I). 402 
 
 37. 42 St. 743 
 
 38. 97 U. 162 
 99 I). 634 
 
 36 D. 398 
 41 D. 458 
 83 D. 231 
 
 31 R. 360 
 60 R. 193 
 40 R. 556 
 72 D. 484 
 
 37 St. 811 
 
 20 R. 292 
 43 R. 799 
 45 D. 558 
 36 R. 13 . 
 26 St. 44 
 69 D. 642 
 80 D. 154 
 47 1). 210 
 
 39. 54 1). 614 
 
 32 D. 68 
 74 D. 503 
 79 1). 07 
 
 40. 15 St. 386 
 6 St. 913 
 
 9 Gratt. (Va.) 704. 
 
 52 Me. 304. 
 
 13 lied. (N. 0.) 106. 
 
 4 Pa. St. 375. 
 
 53 Me. 451. 
 
 6 Met. (Mass.) 415. 
 2 Dev. Eq. (N. C.) 115. 
 27 Iowa, 534. 
 163 Mass. 362. 
 
 5 Gray (Mass.), 279. 
 23 Iowa, 333. 
 
 4S N. H. 133. 
 
 4 McCord (S. C), 183. 
 
 6 Ga. 324. 
 
 2 Zab. (N. J.) 117. 
 02 111. 196. 
 53 Md. 376. 
 68 Pa. St. 342. 
 45 Ala. 378. 
 27 N. Y. 9. 
 
 9 Conn. 102. 
 119 Cal. 216. 
 
 4 Greenleaf (Me.), 220. 
 
 1 Paige (N. Y.), 171. 
 143 N. Y. 442. 
 
 17 Midi. 9. 
 31 Ind. 485. 
 
 2 Ala. 43. 
 
 7 Met. (Mass.) 500. 
 31 111. 385. 
 
 56 Miss. 269. 
 81 Ala. 577. 
 86 N. Y. 554. 
 
 18 N. Y. 9. 
 
 31 Texas Crim. Rep. 318 
 
 50 Ala. 149. 
 
 20 W. Va. 713. 
 
 14 Ohio, 555. 
 
 34 Ark. 341. 
 
 54 Ark. 283. 
 
 10 X. Y. 58. 
 4: 1 , X. H. 224. 
 
 4 Denio (X. Y.), 9. 
 
 33 Me. 114. 
 
 6 Dana (Ivy.), 87. 
 
 47 Me. 548. 
 
 37 Ala. 496. 
 
 116 N. Y. 67. 
 
 44 N. J. Eq. 564.
 
 §§ 40^3 
 
 REFERENCE TABLE. 
 
 XXXV 
 
 §40. 44 St. 258 
 
 46 I J. 280 
 77 1). 572 
 
 1 R. 334 
 68 I). 465 
 22 D. 655 
 
 41. 22 I '. 563 
 53 1). 164 
 20 D. 402 
 18 St. 928 
 
 2 St. 10-3 
 10 St. 618 
 58 I). 59 
 
 65 1). 349 
 
 42. 66 1). 288 
 86 D. 436 
 98 I). 78 
 76 I). 440 
 23 D. 549 
 53 I 
 
 45 I). 171 
 64 St. 854 
 79 D. 73 
 
 47 1). 120 
 
 82 D. 144 
 
 83 1). 351 
 31 D. 267 
 13 St. 647 
 39 I). D2:] 
 73 D. 323 
 10 St. 94 
 26 St. 475 
 
 St. 430 
 60 D 
 
 98 D. 587 
 ;;:; St. 917 
 St. 362 
 in I). 158 
 66 !>. 137 
 87 St. 374 
 6 D. 105 
 8 R 422 
 94 D. B84 
 16 D. < '.7:: 
 66 1). 137 
 ■17 R. 112 
 3( in") 
 43. 6 R. 675 
 
 78 Mel. 26. 
 
 12 Ala 
 
 29 Mo. 271. 
 
 42 Vt. 350. 
 
 21 Ga. 447. 
 
 2 Paige (N. T.), 422. 
 
 7 Wend. (N. Y.), 47. 
 
 21 N II. 52. 
 
 2 Bland (Md.), 544. 
 
 90 Wis. 272. 
 
 121 III. 388. 
 
 87 Tenn 244. 
 
 •1 Swan (Tenn.), 321. 
 
 22 Md. 468. 
 28 Ala. 332. 
 12 Ark. 657. 
 
 1 Winst. (N. C.) 2G6. 
 Phill. (X. C. 
 
 14 Cal. 506. 
 
 9 Greenleaf (Me.), 140. 
 
 22 X. II. 118. 
 
 4 Gill (Md.), 487. 
 4:5 W. Va. 211. 
 37 Ala 
 
 10 Mo. 368. 
 32 Mo 532. 
 21 Ind. 404. 
 
 6 Paige (X Y.), 366. 
 31 W. Va. '.'4. 
 
 23 Me. 305. 
 30 Vt. - 
 118 Ind. 34. 
 128 X. Y. 2 
 
 15 ' Mass. H5. 
 25 Vi 220. 
 
 41 Vt. 311. 
 64 Vt. 89. 
 47 Minn. 250. 
 
 R. (Pa.) 247 
 4 Iowa. 321. 
 115 Mo. 1. 
 10 Mass. 152. 
 69 Me 
 43 Ala. 816. 
 1 Aiken (Vt.), 174 
 4 Iowa, 321. 
 
 mi Kv. 580. 
 20 < Hiio St. :)71
 
 XXXVI REFERENCE TABLE. §§ -13-47 
 
 § 43. 78 D. 216 ...... . 22 N. Y. 450. 
 
 99 D. 587 31Ind. 92. 
 
 90 D. 358 41 Miss. 119. 
 
 11 D. 396 7 Johns. Ch. (N. Y.) 57. 
 
 57 D. 583 Bush. Eq. (N. C.) 1. 
 
 4 R. 631 44 N. Y. 27. 
 
 9 R. 679 35 Ind. 181. 
 
 32 1). 362 9N. H. 309. 
 
 9 St. 319 96 Mo. 22. 
 
 88 D. 49 10 Minn. 50. 
 
 58 St. 490 106 Mich. 384. 
 
 46 St. 122 101 Ala. 433. 
 
 83 D. 772 8 Minn. 236. 
 
 76 D. 363 21 Ark. 268. 
 
 57 D. 330 25 N. H 343. 
 
 13 St. 273 41 Kansas, 236. 
 
 99 D. 587 ....... 31 Ind. 92. 
 
 57 St. 163 145 Ind. 154. 
 
 33 D. 168 Meigs (Tenn.), 620. 
 
 44. 5 D. 659 2 Overton (Tenn.), 176. 
 
 49 D. 596 2 Strob. (S. C.) 257. 
 
 82 D. 395 26 N. Y. 9. 
 
 26 D. 370 1 Port. (Ala.) 222. 
 
 4 D. 170 6 Mass. 506. 
 
 29 St. 170 61 Conn. 50. 
 
 45 D. 145 4 Gill (Md.), 425. 
 
 24 St. 166 87 Mich. 340. 
 
 45. 81 D. 597 18 Md. 305. 
 
 1 D. 643 2 Bay (S C), 211. 
 
 19 R. 695 49 Ind. 573. 
 
 98 D. 432 5 Cold. (Tenn.) 471. 
 
 25 R. 718 54 Ala. 510. 
 
 100 D. 314 44 Mo. 465. 
 
 51 D. 649 3 Strob. (S. C.) 552. 
 
 71 D. 370 11 Ind. 557. 
 
 100 D. 173 . 18 Mich. 314. 
 
 31 R. 331 38 Mich. 744. 
 
 33 St. 414 110 Mo. 7. 
 
 33 St. 88 94 Ala. 31. 
 
 46. 8 R. 488 66 N. C. 59. 
 
 63 St. 174 39 Fla. 477. 
 
 15 D. 322 3 Cowen (N. Y.), 686. 
 
 47. 41 R 418 27 Kan. 442. 
 
 25 D. 677 4 Dev. (N. C.) 1. 
 
 7 R. 87 26 Wis. 428. 
 
 41 St. 606 99 Mich. 358. 
 
 39 D. 187 3 Humph. (Tenn.) 480. 
 
 64 D. 680 25 Pa. St. 23. 
 
 43 D. 740 2 Denio (N. Y.), 272.
 
 §§ 47-60 REFERENCE TABLE. XXX\ii 
 
 §47. 83 D. 367 21 Ind. 516. 
 
 48. 72 D. 169 36 Miss. 273. 
 
 49. 44 D. 574 17 Conn. 585. 
 
 3 St. 176 15 Oregon, 456. 
 
 19 D. 61 1 Marsh. J. J. (Ky.) 206. 
 
 9 R. 409 38 Conn. 449. 
 
 24 St. 276 68 Miss. 292. 
 
 10 St. 357 64 N. H. 13. 
 
 37 St. 478 21 Nevada, 47. 
 
 10 St. 280 79 Me. 484. 
 
 8 St. 17 30 W. Va. 95. 
 
 28 St. 163 129 Ind. 44. 
 
 45 D. 355 10 Mo. 117. 
 
 30 D. 33 15 Wend. (N. Y.) 113. 
 
 50. 79 D. 468 17 Ind. 169. 
 
 40 I). 131 8 Mo. 148. 
 
 94 D. 571 21 Wis. 621. 
 
 10 D. 582 2Nott & McC. (S. C.) 168. 
 
 68 D. 735 18 B. Mon. (Ky.) 693. 
 
 18 D. 432 8Covven (X. Y.), 178. 
 
 51. 94 1). 461 17 Gratt. (Va.) 375. 
 
 20 D. 95 8 Conn. 101. 
 
 89 D. 605 lBush (Ky.), 34. 
 
 21 D. 181 -5 Wend. (N. Y.) 170. 
 
 61 D. 470 2 Gray (Mass.), 410. 
 
 52. 40 1). 305 4 Hill (N. Y.), 630. 
 
 12 U. 201 Breese (111.), 401. 
 
 95 D. 418 46 111. 398. 
 
 14 I). 352 3 N. H. 210. 
 
 90 D. 713 34 N. Y. 389. 
 
 15 D. 322 -3 Cowen (N. Y.), 680. 
 
 85 D. 643 22 Md. 170. 
 
 35 I). 551 23 Wend. (N. Y.) 193. 
 
 63 1). 768 3 Gray (Mass.), 468. 
 
 74 D. 676 14 Gray (Mass.), 226. 
 
 12 D. 596 1 Mill (S. C), 55. 
 
 87 1). 578 28 Md. 471. 
 
 33 D. 346 1 Ark. 570. 
 
 48 1). 652 2 Cush. (Mass.) 68. 
 
 53. 3 D. 189 4 Mass. 1. 
 
 23 It. 661 54 Ind. 501. 
 
 55. 84 I). 700 16 Wis. 148. 
 
 33 D. 546 9 Dana (Ky.), 177. 
 
 56. 68 D. 735 18 B. Mon. (Ky.) 693 
 
 84 1). 193 26 N. Y. 356. 
 
 57. 95 D. 350 37 Ga. 532. 
 
 58. 29 It. 682 1 MacArthur (D. C), 169 
 
 97 1). 248 41 Mo 63. 
 
 60. 88 I). 515 49 Pa. St. 519.
 
 xxxv 'ii REFERENCE TABLE. §S 61-75 
 
 §61. 9 R. 489 28 Wis. 90. 
 
 62. 24 D. 198 i Wend. (N. Y.) 9 
 
 7(3 D. 662 30 Ga. 440. 
 
 63. 11 D. 351 20 Johnson (N. Y ) 693 
 
 64 - 44 1). 241 2Rich,Eq. (S. C.) 43. 
 
 65. 55 D. 87 , 23 Miss. 167. 
 
 66. 83 D. 502 52 Me. 105. 
 
 23 St. 37 65 N. H. 248. 
 
 321X423 19 Wend. (N. Y.) 11. 
 
 55 D. 350 5 N. Y. 422. 
 
 48 St. 706 44 Nebraska, 82 
 
 59 D. 107 . . . • . . . . 5 Md. 186. 
 61 D - 530 27 Miss. 704. 
 
 39 D. 142 1 Speer's, Eq. (S. C.) 1. 
 
 60 D. 135 1 Sneed (Tenn.), 63 
 
 67. 10 R. 698 71 Pa. St. 302. 
 
 68 54 D. 55 11 Humph. (Tenn.) 536. 
 
 37 D - 525 2 Watts & S. (Pa.) 568. 
 
 39 St. 196 148 111. 536. 
 
 69. 70 D. 372 20 Texas, 24. 
 
 61 D. 237 38 Me. 171. 
 
 34 St. 311 157 Mass. 542. 
 
 13 St. 896 31 W. Va. 790. 
 
 71. 34 St. 541 49 hio St. 137. 
 
 72 - 95 D. 263 35 Conn. 374. 
 
 73 !>• 058 14Cal. 424. 
 
 33 St. 72 97 Cal. 276. 
 
 10 D - 34 1 Greenleaf (Me.), 79. 
 
 53 1). 450 13 p a . st. 133. 
 
 73 - 41 R. 221 ....... 131 Mass. 258. 
 
 67 D. 471 27 Pa. St. 339. 
 
 7: >I>. 574 33 Pa . st. 33. 
 
 74- 41D.109 5 Ark. 595. 
 
 ;; s t- 492 122 111. 293. 
 
 22 D. 679 ^ 3 p a j ?e (N. Y.), 45. 
 
 69 D. 389 34 Miss. 227. 
 
 75 D. 518 10 Ohio St. 372. 
 
 8 7 D. 672 10 Allen (Mass.), 448 
 
 35 St. 385 85 Me. 532. 
 
 4:! St. 105 104 Cal. 326. 
 
 49 D. 604 2 Strob. (S. C.) 457. 
 
 85 D - 613 1 Duvall (Ky.), 143. 
 
 94 D. 378 . 40 Vt. 81. 
 
 46 D. 181 19 Vt . 74. 
 
 75 15 D. 100 1 Mon. (Ky.) 206. 
 
 99 D. 300 37 Cal. 543. 
 
 70 St. 149 107 Iowa, 143. 
 
 20 R. 504 63 N. Y. 62. 
 
 17 R - 702 47 i nd . 407.
 
 ;§ 75-84 
 
 REFERENCE TABLE. 
 
 XXXIX 
 
 75. 
 76. 
 
 77. 
 
 78. 
 
 79. 
 
 82. 
 
 02 R. 353 
 16 D. 705 
 
 13 D. 550 
 
 9 1 ). 402 
 18 1). 708 
 
 14 D. 
 11 1). 
 50 St. 
 64 St. 
 ^7 1). 
 57 D. 
 
 80. 
 
 81. 7 
 
 83. 
 
 84. 
 
 310 
 551 
 146 
 257 
 391 
 400 
 52 1). 248 
 88 D. 579 
 83 D. 329 
 46 D. 619 
 33 1). 481 
 54 D. 522 
 
 95 I). 529 
 
 96 D. 331 
 7:; 1). 319 
 02 1). 625 
 90 D. 617 
 50 D. 471 
 63 D. 450 
 
 35 D. 400 
 79 I). 418 
 39 St. 381 
 
 95 !). 654 
 59 St. 543 
 50 D. 534 
 
 36 St. 681 
 72 I). 685 
 35 D. 292 
 
 33 D. 050 
 18 1). 451 
 
 35 I). 661 
 41 1). 109 
 63 1). 106 
 
 96 1>. 747 
 
 41 D. 090 
 94 D. 84 
 
 12 D. 234 
 57 D. 108 
 62 1). 112 
 18 St. 192 
 
 13 St. 2:1 
 
 34 St. 541 
 
 36 D. L86 
 
 42 St. 677 
 
 76 Ala. 572. 
 2 Aiken (Vt.), 255. 
 1 Cowen (N. Y.), 513. 
 6Serg. & K. (Pa.) 12 
 6 Rand. (Va.) 165. 
 
 1 Mo. 004. 
 
 2 Halst. (X. -J.) 352. 
 159 111. 169. 
 
 91 Me. 492. 
 is Iowa, 280. 
 3Zab. (N. J.) 402. 
 ID Ark. 516. 
 
 51 Pa. St. 228. 
 
 20 [nd. W-i. 
 27 Me. 50!». 
 
 8 Dana (Ky.), 114. 
 
 12 B. Mon. (Ky.) 212. 
 
 48 111. 172. 
 
 5 Bnsli (Ky.), 68. 
 30 Vt. 476. 
 27 Vt. 140. 
 18 N. J.Eq. 178. 
 
 13 111. 548. 
 
 13 1'a.St. 133. 
 11 X. H. 19. 
 10 In,l. 172. 
 
 52 Kansas, 774. 
 
 29 Ind. 465. 
 
 49 Nebraska, 412. 
 
 14 Pa. St. 241. 
 70 Miss. t;69. 
 
 30 Pa. St. 12. 
 
 24 1'kk. (Mass.) 49. 
 
 Hi Me. 224. 
 
 8 Cowen (X. V.), 387. 
 
 2:) Wend. (N. V.) 193. 
 
 5 Ark. 595. 
 
 13 Smedes & M. (Miss.) 569 
 
 99 Mass. 207. 
 
 15 X. II. ICC. 
 5i; Pa. St. 325. 
 
 1 Blackf. (Ind.) 267. 
 
 21 Miss. 27s. 
 8 Ga. 186. 
 84 Cal. .".27. 
 87 Ala. 206. 
 
 49 o!,!,, St. 137. 
 in Watts (Pa.), 397. 
 4ii Nebraska, 170.
 
 xl 
 
 REFERENCE TABLE. 
 
 §§ 85-93 
 
 §85 
 
 47 St. 153 .. . 
 
 ... 94 Ga. 306. 
 
 
 41 St. 151 .. . 
 
 . ... 102 Cal. 55. 
 
 
 38 St. 552 .. . 
 
 . ... 52 Minn. 239. 
 
 
 33 St, 172 .. . 
 
 . ... 97 Cal. 276. 
 
 
 29 St. 596 .. . 
 
 . ... 22 Oregon, 218. 
 
 
 26 St. 743 .. . 
 
 . ... 80 Texas, 344. 
 
 
 24 St. 887 .. . 
 
 . ... 91 Ala. 224. 
 
 86. 
 
 13 D. 522 ... 
 
 . . . . 1 Cowen (N. Y.), 260. 
 
 
 31 St. 63 . - . 
 
 . . . . 84 Texas, 392. 
 
 
 68 D. 290 . . . 
 
 . . . . 8 Cal. 52. 
 
 
 62 D. 424 .. . 
 
 . . . . 1 Sneed (Tenn.), 637. 
 
 87. 
 
 12 D. 495 .. . 
 
 . . . , 7 Martin (La.), 69. 
 
 
 28 D. 650 .. . 
 
 . . . . 5 Rawle (Pa.), 151. 
 
 
 59 D. 708 . , . 
 
 . ... 20 Pa. St. 260. 
 
 
 95 D. 107 ... 
 
 . ... 35 Cal. 365. 
 
 
 50 R. 505 . . . 
 
 . ... 80 Mo. 310. 
 
 
 52 R. 436 ... 
 
 . ... 64 Iowa, 220. 
 
 
 39 R. 818 ... 
 
 . ... 97 Pa. St. 493. 
 
 
 59 St. 193 .. . 
 
 . ... 117 Cal. 370. 
 
 
 68 St. 852 .. . 
 
 ... 188 Pa. St. 116. 
 
 88. 
 
 33 D. 656 ... 
 
 ... 16 Me. 224. 
 
 89. 
 
 99 D. 300 .. . 
 
 ... 37 Cal. 543. 
 
 
 56 D. 666 ... . 
 
 ... 34 Me. 411. 
 
 90. 
 
 13 D. 588 .. . 
 
 ... 1 Ohio, 36. 
 
 
 58 D. 439 . . . . 
 
 ... 22 Conn. 530. 
 
 
 91 D. 672 .. . 
 
 ... 34 Cal. 48. 
 
 
 37 D. 38 . . . . 
 
 ... 20 Me. 41. 
 
 
 87 D. 391 ... 
 
 . . . 18 Iowa, 280. 
 
 
 100 D. 570 . . . . 
 
 ... 60 Pa. St. 367. 
 
 91. 
 
 33 St. 355 - . . . 
 
 ... 49 Kan. 107. 
 
 
 44 St. 454 ... . 
 
 . . . 115 N. C. 324. 
 
 
 17 D. 159 . . . . 
 
 o . . 6 Mon. (Ky.) 427. 
 
 
 16 R. 587 . . . . 
 
 . . 65 111. 328. 
 
 
 21 R. 39 . . . . 
 
 ... 79 Pa. St. 54. 
 
 
 31 St. 653 . . . . 
 
 ... 48 Minn. 319. 
 
 
 40 St. 837 ... . 
 
 ... 86 Texas, 350. 
 
 
 42 St. 159 ... . 
 
 ... 64 Conn. 101. 
 
 
 43 St 147 ... . 
 
 ... 104 Cal. 649. 
 
 
 6 D. 619 . . . . 
 
 ... 4 Desaus. (S. C.) 578 
 
 
 43 D. 457 . . . . 
 
 ... 2 Doug. (Mich.) 124, 
 
 
 68 D. 544 . . . . 
 
 ... 18 111. 297. 
 
 
 27 D. 33 . . . . 
 
 ... 2 Green (N. J.), 222. 
 
 
 53 D. 624 . . . . 
 
 . . . 1 R. I. 312. 
 
 92. 
 
 22 R. 133 . . . . 
 
 ... 72 111. 50. 
 
 
 46 St. 285 ... . 
 
 ... 20 Color. 203. 
 
 93 
 
 31 D. 72 . . . . 
 
 . . . 9 Gill & J. (Md.) 365. 
 
 
 6 St. 745 . . . . 
 
 ... 120 Pa. St. 624. 
 
 
 67 D. 160 . . . . 
 
 ... 14 N. Y. 380. 
 
 
 29 D. 591 .... 
 
 . . 18 Pick. (Mass.) 328.
 
 §§ 93-103 
 
 REFERENCE TABLE. 
 
 Xli 
 
 §93. 
 
 84 D. 470 
 
 95. 
 
 5 D. 638 
 
 
 8 D. 128 
 
 
 66 D. 257 
 
 
 42 St. 379 
 
 
 47 St. 323 
 
 
 44 St. 838 
 
 
 09 D. 7*8 
 
 96. 
 
 42 St. U 
 
 
 3 St. 586 
 
 
 46 D. 690 
 
 
 76 D. 508 
 
 
 65 D. 557 
 
 
 53 D. 624 
 
 
 66 D. 490 
 
 97. 
 
 45 St. 133 
 
 
 45 St. 700 
 
 
 100 D. 546 
 
 
 62 D. 412 
 
 
 51 R. 166 
 
 
 57 St. 60 
 
 
 26 St. 639 
 
 
 21 St. 798 
 
 
 43 I). 685 
 
 
 49 D. 287 
 
 
 99 D. 427 
 
 
 3 St. 797 
 
 98. 
 
 13 St. 590 
 
 
 36 St. 130 
 
 
 33 St. 331 
 
 
 11 D. 575 
 
 
 19 D. 306 
 
 
 57 St. 373 
 
 99. 
 
 90 D. 617 
 
 
 22 D. 785 
 
 
 84 1). 184 
 
 100. 
 
 99 I). 300 
 
 101. 
 
 25 I). ::<; 
 
 
 38 R. 222 
 
 
 94 1). 84 
 
 
 69 D. 661 
 
 102. 
 
 22 D. 679 
 
 
 40 I). 705 
 
 
 55 D. 266 
 
 
 69 D. 389 
 
 
 56 D. 522 
 
 103 
 
 86 I). 202 
 
 
 44 D. 83 
 
 
 65 D. 535 
 
 45 Pa. St. 9. 
 
 2 Bibb (Ky.), 576. 
 10 .Mass. 94. 
 
 41 Me. 512. 
 
 161 Mass. 10 
 
 87 Me. 234. 
 
 66 Vt. 248. 
 
 57 Me. 143. 
 
 99 Ala. 1. 
 
 10 Color. 327. 
 
 12 Met. (Mass.) 371. 
 
 16 Cal. 145. 
 
 25 Conn. 171. 
 
 1 R. I. 312. 
 
 7 Gray (Mass.), 393. 
 154 111. 458. 
 
 94 Tenn. 123. 
 60 Pa. St. 124. 
 
 8 Ga. 486. 
 105 Pa. St. 49. 
 68 Conn. 29. 
 
 1 N. Dakota, 435. 
 
 47 Ohio St. 180. 
 
 1 Denio (N. Y.), 414. 
 
 1 N. Y. 47. 
 
 38 Cal. 528. 
 
 19 Nevada, 103. 
 
 62 N. H. 537. 
 
 6 Wash. 134. 
 
 141 111. 519. 
 
 8 Serg. & R. (Pa.) 73. 
 
 8 Pick. (Mass.) 90- 
 84 Md. 129. 
 
 18 N. J. Eq. 178. 
 
 5 Ohio. 162. 
 
 16 N. J. Eq. 13. 
 37 Cal. 543. 
 
 9 Conn. 436. 
 44 Mich. 7. 
 
 66 Pa. St. 325. 
 16 N. Y. 97. 
 
 3 Paige (N. Y.), 45. 
 16 Vt. 745. 
 
 4 X Y. 419. 
 34 Miss. 227. 
 3 Ind. 481. 
 
 6 Wliart. (Pa.) 25. 
 
 3 Ired. Eq. (N. C.) 613. 
 6 Cal. 590.
 
 xlii 
 
 REFERENCE TABLE. 
 
 §§ 103-109 
 
 § 103. 42 D. 716 
 
 104. 39 D. 778 
 40 1). 710 
 18 R. 345 
 
 105. 15 St. 460 
 62 St. -til 
 
 106. 69 D. 565 
 40 St. 109 
 36 R. 840 
 69 D. 489 
 30 St. 214 
 
 35 St. 515 
 72 1). 730 
 
 36 St. 88 
 
 88 D. 248 
 
 40 St. 109 
 30 D. 185 
 66 D. 627 
 
 44 St. 222 
 
 45 St. 252 
 2 St. 85 
 
 107. 19 St. 490 
 34 D 625 
 36 1). 441 
 
 05 I). 452 
 
 29 St. 75D 
 
 6 St. 310 
 
 16 St. 578 
 '.'2 1). 73 
 
 17 I). 351 
 16 D. 189 
 36 St. 438 
 
 41 St. -_'4s 
 47 St. 258 
 
 108. 55 D. 347 
 22 R. 507 
 47 St. 596 
 
 89 I). 150 
 94 1). 461 
 6 St. -^i; 
 in St. 35 
 36 st. 138 
 27 I). 95 
 15 St. 840 
 32 1). 730 
 
 109. 43 D. 719 
 49 1). 412 
 
 30 St. 832 
 29 St. 758 
 
 17 Conn. 40. 
 
 7 Met. (Mass.) 276. 
 
 2 Rob. (Va.) 209. 
 
 10 Minn. 418. 
 
 117 n. y. i. 
 
 118 Cal. 556. 
 
 2 Dutch. (N.J.) 148. 
 7 Houston (Del.), 44. 
 50 Wis. 180. 
 
 34 N. II. 351. 
 
 130 Intl. 149. 
 
 158 Mass. 509. 
 
 31 Pa. St. 175. 
 
 92Tenn. 335. 
 
 31 N. Y. 164 
 
 7 Houston (Del.), 44. 
 
 7 Ohio, 31. 
 22 Mo. 384. 
 95 Ky. 239. 
 88 Iowa, 674. 
 
 121 111. 288. 
 
 122 N. Y. 268. 
 
 1 Humph. (Tenn.) 156. 
 
 3 Ala. 137. 
 21 Ga. 80. 
 88 Va. 905. 
 03 Mich. 396. 
 
 73 Mich. 288. 
 37 Ga. 277. 
 
 6 Pick. (Mass.) 187. 
 
 5 Mart. N. S. (La.) 409. 
 
 144 111. 336. 
 
 19 Color. 236. 
 
 139 Ind. 214. 
 
 5 N. Y. 369. 
 
 34 Mich. 125. 
 
 57 Minn. 115. 
 
 26 Ind. 17. 
 
 17 Gratt. (Va.) 375. 
 
 78 Ga. 241. 
 
 117 Ind. 12i'.. 
 
 144 III. 336. 
 
 11 Wend. (X. Y.) 539. 
 
 74 Texas, 404. 
 
 8 Ohio, 543. 
 
 1 Denio (N. Y.), 505. 
 
 9 Ired. (N. C.) 73. ' 
 15ii p a . St. 589. 
 
 88 Va. 992.
 
 §§ 100-131 REFERENCE TABLE. xllii 
 
 8 109. 34 St. 839 5 Wash. 1. 
 
 63 D. 345 17 111.143. 
 
 83 1). 557 20Md.468. 
 
 17 St. 732 18 Oregon, 271. 
 
 45 St. 853 3b W. Va. 177. 
 
 78 D. 342 35 Pa. St. 324 
 
 1). 310 3N. Y. Hi3. 
 
 55 1). 347 5 N. ^ 
 
 24 K. 552 35 Mich. 296. 
 
 29 st 730 88 V:l ' 40 -- 
 
 2R.368 '. 19 Ohio St. 19. 
 
 92 1). 73 37 Ga. 277. 
 
 17 St. 696 ........ 1"! X. c. 714. 
 
 35 St. 152 98Cal.73. 
 
 47 St. 525 102 Mich. 21 
 
 110. 38 D. 609 3 Hill (N. Y.), 531. 
 
 45 St. 114 154 111. 141. 
 
 34 St. 17 31 Fla. 111. 
 
 30 St. 373 84 Me. 499. 
 
 46 St. 700 4 S. Dakota, 17. 
 
 7'.. 1). 721 1 Allen (Mass.), 172. 
 
 33 R. 154 51 Iowa, 687 
 
 6 R. 196 104 Mass. 87. 
 
 9R.382 38 Conn. 308. 
 
 is k. 762 56 Vt. 228. 
 
 82 1) 550 43 Pa. St. 212. 
 
 111. 07 I). 748 29 Vt. 12. 
 
 21 K. 661 52 Miss. 53. 
 
 3t. 515 > • 158 Mass.- 
 
 112. 78 1). 571 25 Texas Sup. 281. 
 
 8 St. 744 112 X. V. 310. 
 
 94 1). 605 42 Ala. 548. 
 
 12D.516 7 Martin (La.), 571. 
 
 18 1). 194 7 Mon. (Ky.) 439. 
 
 41 D. 549 1 Doug. (Mich.) 225. 
 
 63 1). 130 6Cal.288. 
 
 10 St. 712 87 Tenn. 725. 
 
 22 St. (124 127 Ind. 2" l. 
 
 121. 14 St. 693 51 N. J. Law. 432. 
 
 127. 4 St. 465 109 X. Y. 389. 
 
 87 St. 206 147 111. 66. 
 
 I>; St. 815 155 111. 98. 
 
 111). 575 3 Hawks (X. C.K74. 
 
 65 1) Ki3 12 Iredell (X. C), 61. 
 
 17 St. ts'.i 163 Mass. 57 1. 
 
 129. 66 1). 290 42 Mr. li\< 
 
 75 I). 714 12 Rich. (S. C.) 13. 
 
 131. 15 1). 7S 1 Mon. (Ky.) 10. 
 
 85 D. 240 . 32 Conn. 21.
 
 Xliv REFERENCE TABLE. §§ 131-150 
 
 § 131. 31 R. 42 60 Ala. 313. 
 
 72 D. 738 31 Pa. St. 225. 
 
 78 D. 186 22 N. Y. 249. 
 
 31 R. 34 60 Ala. 89. 
 
 17 I). 238 5 Greenleaf (Me.), 319. 
 
 54 I). 126 7 Gratt. (Va.) 112. 
 
 16 D. 741 • 5 Rand. (Va.) 195. 
 
 57 R. 424 88 Mo. 418. 
 
 38 D. 628 3 Hill (N. Y.), 215. 
 
 63 D. 665 40 Me. 348. 
 
 138. 39 St. 577 53 Minn. 88. 
 
 14 R. 60 61 111. 343. 
 
 139. 81 D. 374 19 Ind. 28. 
 
 72 D. 639 29 Pa. St. 387. 
 
 32 R. 562 7 Baxt. (Tenn.) 312. 
 
 140. 90 D. 49 25 Md. 378. 
 
 12 St. 698 40 Minn. 103. 
 
 87 D. 644 10 Allen (Mass.), 368. 
 
 48 St. 132 107 Cal. 317. 
 
 8 St. 624 70 Texas, 602. 
 
 141. 16 St. 813 119 N. Y. 226. 
 
 50 D. 68 21 Vt. 9. 
 
 60 D. 698 15 Ga. 349. 
 
 28 R. 45 68 Me. 235. 
 
 142. 8 D. 369 17 Johnson (N. Y.), 92. 
 
 143. 17 D. 238 5 Greenleaf (Me.), 319. 
 
 144. 32 D. 518 19 Wend. (N. Y.), 500. 
 
 72 D. 442 17 N. Y. 173. 
 
 145. 88 D. 503 49 Pa. St. 322. 
 
 147. 84 D. 431 44 Pa. St. 210. 
 
 59 D. 566 1 Jones (N. C), 1. 
 
 48 R. 462 39 Ohio St. 377. 
 
 19 D. 679 . . 1 Bailey (S. C.), 283. 
 
 49 R. 684 64 Cal. 29. 
 
 30 R. 395 48 Iowa, 264. 
 
 31 R, 385 56 Miss. 766. 
 
 52 D. 561 11 B. Mon. (Ky.) 74. 
 
 46 R, 476 135 Mass. 386. 
 
 41 D. 370 24 Me. 18. 
 
 100 D. 752 3 W. Va. 393. 
 
 148. 70 D. 638 9 Cal. 81 
 
 76 D. 174 32 Vt 232. 
 
 77 D. 468 9 Mich. 9. 
 
 40 D. 310 5 Hill (N. Y.) 37. 
 
 17 D. 782 1 Mart. & Y. (Tenn.), 48. 
 
 150. 14 D. 614 11 Serg. & R. (Pa.) 73. 
 
 52 D. 777 6 Cush. (Mass.) 148. 
 
 27 D. 578 6 Vt. 507. 
 
 35 D. 131 5 Blackf. (Ind.) 441.
 
 §§ 150-194 
 
 REFERENCE TABLE. 
 
 xlv 
 
 § 150 
 
 12 D. 70 . 
 
 
 
 
 
 
 . 1 Del. Ch. (Del.) 35. 
 
 151. 
 
 35 St. 706 . 
 
 
 
 
 
 
 . 113 Mo. 308. 
 
 152. 
 
 27 D. 682 . 
 50 D. 766 . 
 27 R. 524 . 
 
 
 
 
 
 
 . 10 Conn. 384. 
 
 . 4Cusli. (Mass.) 273. 
 
 . 31 Oliio St. 529. 
 
 154. 
 
 12 D. 550 
 62 I). 372 . 
 69 D. 184 . 
 
 
 
 
 
 
 . Walker (Miss.), 176. 
 . 24 Pa. St. 159. 
 . 1\ Mil. 128. 
 
 166. 
 
 87 1). 52 . . 
 27 St. 106 . 
 
 
 
 
 
 
 . 24 Ark. 161. 
 . 92 Cal. 296. 
 
 167. 
 
 15 St. 460 . 
 
 16 St. 813 
 20 1). 360 . 
 79 D. 236 . 
 35 D. 326 
 95 D. 350 
 
 79 I). 123 . 
 
 
 
 
 
 
 . 117 N. Y. 1. 
 
 . 119 N. Y. 226. 
 
 . 2 Bland (Md.), 209. 
 
 . 30 Conn. 149. 
 
 . 24 Pick. (Mass.) 359. 
 
 . 37 Ga. 532. 
 
 . 17 Cal. 199. 
 
 170. 
 
 54 D. 630 . 
 79 D. 440 
 21 D. 89 . . 
 25 D. 745 . 
 36 D. 458 
 32 D. 114 
 43 D. 180 
 74 D. 703 
 
 
 
 
 
 
 \ 83 Me. 414. 
 . 16 Ind. 429. 
 . 4 Wend. (N. Y.) 9. 
 . 6 Ohio, 125. 
 . 3 Ark. 409. 
 . 12 La. 98. 
 . 10 Rob. (La.) 202. 
 . 7 Mich. 161. 
 
 181. 
 
 95 D. 350 
 97 D. 248 
 1 R. 399 
 35 D. 326 
 92 D. 468 
 
 96 D. 73 . 
 
 
 
 
 
 
 . 37 Ga. 532. 
 . . 41 Mo. 63. 
 
 . 62 Pa. St. 286. 
 . . 24 Pick. (Mass.) 359. 
 . . 2 Bush (Ky.),5. 
 . . 25 Iowa, 520. 
 
 182. 
 
 70 D. 151 
 7 D. 106 . 
 
 
 
 
 
 
 . . 29 Pa. St. _'7. 
 . . 13 Mass. 1. 
 
 183. 
 
 37 D. 761 
 40 D. 705 
 55 D. 494 
 
 
 
 
 
 
 . 4 Ark. 44. 
 . . 15 Vt. 745. 
 . . 16 Pa. St. 241. 
 
 184 
 
 28 1). 280 . 
 
 
 
 
 
 
 . . 3 Leigh (Va), 365. 
 
 186. 
 
 19 St. 364 
 62 I). 742 
 
 
 
 
 
 
 . 20 Nevada, 269. 
 . . 26 Ala. 493. 
 
 187. 
 
 49 D. 697 . 
 
 
 
 
 
 
 . 9 Ilnmph. (Tenn.), 43. 
 
 188 
 
 43 D. 373 
 
 
 
 
 
 
 . 9 Met. (Mass.) 93. 
 
 190. 
 
 26 1 ). 536 
 2R. 81 
 68 D. 658 
 
 
 
 
 
 
 . . 10 Wend. (N. Y.) 76. 
 
 . . 19 Mich. 186. 
 . 10 Ind. 28. 
 
 194. 
 
 63 D. 661 
 96 D. 345 
 65 D. 679 
 36 D. 364 
 4 R. 29 . 
 
 
 
 
 
 
 . . 40 Me. 247. 
 
 . . 5 Bush (Ky.), 160. 
 . . 17111.460. 
 . . 12 Vt, 848 
 . . 36 Conn. 39.
 
 xlvi REFERENCE TABLE. §§ 194-205 
 
 § 194. 37 D. 187 7 Mo. 241. 
 
 195. 46- St. 439 124 Mo. 178. 
 
 16 D. 212 5 Mart. N. S. (La.) 569. 
 
 196. 17 D. 179 -Mart. N. S. (La.) 69. 
 
 55 D. 87 23 Miss. 107. 
 
 197. 28 1). 132 8 La. 130. 
 
 12 D. 475 5 Martin (La.), 83. 
 
 14 D. 201 2 Mart. N. S. (La.) 574. 
 
 65 D. 109 14 Texas, 179. 
 
 43 R. 669 91 N. Y. 315. 
 
 90 D. 390 37 Mo. 350. 
 
 28 D. 142 8 La. 554. 
 
 35 D. 472 11 N. H. 88. 
 
 198. 33 D. 147 Meigs (Tenn.), 342. 
 
 22 D. 41 5 J. J. Marsh (Ky.), 460. 
 
 67 D. 89 13 N. Y. 587. 
 
 12 D. 468 5 Martin (La.), 23. 
 
 199. 8 D. 131 16 Mass. 157. 
 
 23 D. 549 9 Greenleaf (Me.), 140. 
 
 77 D. 598 30 Mo. 72. 
 
 • 21 D. 743 2 Blackf. (Ind.) 407. 
 
 18 R. 509 113 Mass. 458. 
 
 60 St. 936 69 Vt. 403. 
 
 39 St. 196 148 III. 536. 
 
 38 St. 536 52 Minn. 174. 
 
 46 St. 439 124 Mo. 178. 
 
 200. 30 D. 472 8 Vt. 325. 
 
 13 1). 281 8 Martin (La.), 95. 
 
 99 1). 003 6 Bush (Ky.), 133. 
 
 37 St. 186 146 111. 523. 
 
 28 R. 241 125 Mass. 374. 
 
 47 St. 456 163 Mass. 326. 
 
 10 St. 690 87 Tenn. 415. 
 
 201. 37 R. 583 82 N. Y. 443. 
 
 46 St. 439 124 Mo. 178. 
 
 203. 32 1). 307 2 How. (Miss.) 837. 
 
 48 1). 706 9 Smedes & M. (Miss.) 247. 
 
 61 1). 617 28 N. II. 379 
 
 66 1). 502 7 Gray (Mass.), 473. 
 
 89 D. 643 18 La. Ann. 10. 
 
 205. 79 D. 236 30 Conn. 149. 
 
 25 R. 513 6 Oregon, 231. 
 
 16 D. 516 15 Serg. & R. (Penn.) 72. 
 
 17 I). 635 .• 17 Serg. & R. (Penn.) 64. 
 
 10 D. 121 4 Conn. 209. 
 
 76 1). 521 16Cal. 332. 
 
 98 1>. 237 57 Pa. St. 433. 
 
 68 1). 587 19 111.226. 
 
 80 D. 718 13 Wis. 37.
 
 §§ 205-222 KEFERENCE TABLE. xlvil 
 
 § 205. 87 D. 240 37 111. 82. 
 
 206. 16 D. 715 2 Aiken (Vt), 284. 
 
 111). 79 2 Greenleaf (Me.), 275. 
 
 5 D. 291 7 Johnson (X. Y.), 477. 
 
 23 D. 478 4 La. 188. 
 
 96 D. 613 30 Md. 500. 
 
 66 D. 148 17 B. Mon. (Ky.) 173. 
 
 207. 90 D. 311 40 Miss. 29. 
 
 88 D. 622 37 Vt. 599. 
 
 91 D. 245 13 Rich. (S. C.) 498. 
 
 14 1). 722 1 Peck (Tenn.), 1. 
 
 92 D. 56 37 Ga. 124. 
 
 79 D. 490 17 Ind. 572. 
 
 6 D. 531 1 Car. L. R. (N. C.) 55. 
 
 12 R. 507 22Gratt. (Va.) 266. 
 
 45 D. 246- 2 Doug. (Mich.) 1'J7. 
 
 208. 7 St. 674 65 Miss. 542. 
 
 9D. 608 3 Murph. (N. C.) 327. 
 
 45 R. 531 6 Colorado, 559. 
 
 39 R. 558 14 Vroom (N. J.), 203. 
 
 37 St. 572 140 N. Y. 484. 
 
 64 St. 376 110 Mich. 076. 
 
 34 D. 492 8 Watts (Pa.), 517. 
 
 25 R. 760 3 Colorado, 332. 
 
 209. 58 D. 66 2 Swan (Tenn.), 405. 
 
 33 D. 317 12 Gill & J. (Md.) 399 
 
 45 St. 700 94 Tenn. 123. 
 
 211. 89 D. 658 18 La. Ann. 497. 
 
 49 R. 200 15 Texas App. 304. 
 
 16 1). 738 5 Rand. (Va.) 120. 
 
 11 D. 779 2 Hawks (N. C.J, 441. 
 
 32 D. 143 15 Me. 147. 
 
 212. 56 D. 318 2 Cal. 99. 
 
 216. 39 1). 611 23 Me. 90. 
 
 218. 10 St. 819 84 Va. 116. 
 
 219. 30 D. 578 6 Port. (Ala.) 123. 
 
 55 I). 163 22 N. H. 387. 
 
 10 R. 407 49 X. Y. 4G4. 
 
 220. 27 D. 628 1 Port. (Ala.) 313. 
 
 58 D. 575 14 111. 304. 
 
 222. 35 D. 268 17 Me. 462. 
 
 79 D. 656 17 Md. 331. 
 
 93 I). 155 98 Mass. 216 
 
 93 D. 184 15 Mich. 206. 
 
 83 D. 656 7 Allen (Mass.), 29. 
 
 88 D. 761 40 Ala. 184. 
 
 18 R. 200 63 Me. 105. 
 
 25 D. 303 14 Pick. (Mass.) 141. 
 
 45 1). 199 11 Met. (Mass.) 186.
 
 xlviii REFERENCE TABLE. §§ 222-268 
 
 § 222. 51 D. 20G 19 N. H. 534. 
 
 228. 47 D. 254 4 Denio (N. Y.), 811. 
 
 2 St. 305 97 N. C. 477. 
 
 37 St. 552 140 N. Y. 267. 
 
 240. 97 D. 248 41 Mo. 63. 
 
 241. 15 R. 563 75 Pa. St. 39. 
 
 72 D. 74 2 Minn. 61. 
 
 243. 74 D. 749 3 Minn. 240. 
 
 244. 34 D. 81 3 How. (Miss.) 240. 
 
 245. 3 St. 895 19 Nevada, 391. 
 
 247. 19 R. 765 37 Wis. 379. 
 
 35 D. 44 1 Ala. 612. 
 
 60 D. 581 4 Cal. 46. 
 
 248. 35 D. 326 24 Pick. (Mass.) 359. 
 
 1 R. 399 62 Pa. St. 286. 
 
 " 59 D. 759 21 Pa. St. 147. 
 
 250. 70 D. 151 29 Pa. St. 27. 
 
 92 D. 468 2 Bush (Ky.), 5. 
 
 252. 49 D. 697 9 Humph. (Tenn.) 43. 
 
 253. 44 D. 593 4 Harr. (Del.) 389. 
 
 54 D. 379 . . .- . . . . 10 Ga. 190. 
 
 19 St. 374 20 Nevada, 427. 
 
 31 D. 72 9 Gill & J. (Md.) 365. 
 
 87 D. 52 24 Ark. 161. 
 
 97 D. 575 48 N. H. 57. 
 
 20 St. 123 77 Wis. 28. 
 
 15 St. 460 117 N. Y. 1. 
 
 41 St. 109 58 Ark. 407. 
 
 41 St. 278 149 111. 361. 
 
 63 D. 487 2 Iowa, 165. 
 
 12 St. 183 24 Fla. 55. 
 
 257. 81 D. 530 4 Met. (Ky.) 33. 
 
 264. 46 St. 98 101 Ala. 51. 
 
 265. 58 D. 571 14 111. 297. 
 
 88 D. 377 33 N. Y. 269. 
 
 8 R. 602 23 La. An. 743. 
 
 85 D. 348 35 111. 121. 
 
 51 D. 611 12 Pa. St. 350. 
 
 20 R. 69 41 Md. 446. 
 
 66 D. 673 23 Mo. 353. 
 
 89 D. 93 30 Cal. 253. 
 
 13 R. 640 5 W. Va. 85. 
 
 47 St. 801 116 N. C. 223. 
 
 25 St. 230 91 Cal. 649. 
 
 266. 64 St. 64 173 111. 19. 
 
 267. 46 St. 98 101 Ala. 51. 
 
 268. 45 St. 700 94 Tenn. 123. 
 
 12 I). 257 1 Blackf. (Ind.) 405. 
 
 15 D. 462 5 Cowen (N. Y.), 165.
 
 §§ 268-277 
 
 REFERENCE TABLE. 
 
 xlix 
 
 §268. 
 
 56 D. 331. 
 28 1). 525 
 
 
 
 
 
 
 . . 2 Cal. 243. 
 
 . . 14 Wend. (N. Y.) 250" 
 
 269. 
 
 23 D. 537 
 20 D. 360 
 
 
 
 
 
 
 . . 9 Greenlf. (Me.) 54. 
 . . 2 Bland (Md.), 209. 
 
 270. 
 
 69 D. 642 
 
 21 St. 772 
 
 
 
 
 
 
 . . 10 N. Y. 58. 
 . 47 Ohio St. 90. 
 
 271. 
 
 26 1). 631 
 
 
 
 
 
 
 . 10 Pick (Mass.) 87. 
 
 272. 
 
 33 D. 320 
 76 1). 736 
 28 St. 333 
 
 
 
 
 
 
 . 9 Port. (Ala.) 390. 
 . . 24 111. 105 
 . . 47 Minn. 115. 
 
 274. 
 
 1 E. 215 . 
 
 
 
 
 
 
 . . 27 Iowa, 28. 
 
 275. 
 
 31 D. 313 
 87 I). 52 . 
 27 St. 106 
 31 St. 284 
 36 St. 668 
 20 D. 360 
 97 D. 575 
 48 D. 178 
 74 I). 572 
 79 1). 236 
 16 St. 460 
 48 D. 248 
 35 1). 326 
 
 
 
 
 
 
 . 18 Wend. (N. Y.) 9. 
 . . 24 Ark. 161. 
 
 . 92 Cal. 296. 
 . . 17 Color. 156. 
 
 . 139 N. Y. 32. 
 . . 2 Bland (Md.), 209. 
 
 . 48 N. H. 57. 
 
 . 2 Fla. 102. 
 
 . 15 Md. 376. 
 
 . 30 Conn. 149. 
 
 , 117 X.Y.I. 
 
 . 5 Ga. 194. 
 
 . 24 Pick. (Mass.) 359. 
 
 276. 
 
 33 1). 346 
 
 36 D. 543 
 55 D. 499 
 75 I). GIG 
 24 1). 517 
 82 D. 583 
 98 I). 237 
 47 D. 480 
 59 1). 506 
 61 1). 508 
 
 17 It. 425 . 
 
 29 U. 407 
 
 37 K. . 
 45 St. 650 
 72 D. 664 . 
 66 D. 728 . 
 37 St. 206 . 
 58 1). 786 
 
 30 1). 430 
 40 1). 274 
 40 St. 17 . 
 
 
 
 
 
 
 . 1 Ark. 57D. 
 
 . 3 Scam. (111.) 238. 
 
 . 16 Pa. St. 256. 
 
 . 33 Pa. St. 495. 
 
 . 2 Yerger (Tenn.), 599. 
 
 . 43 Pa. St. 512. 
 
 . 57 Pa. St. 433. 
 
 . 6 Pa. St. 507. 
 
 . 8 N. Y. 483. 
 
 . 27 Miss. 2C9. 
 
 . 48 Cal. 279. 
 
 . 14 Bush (Ky.), 218. 
 
 . 35 Ark. 69. 
 
 . 166 Pa. St. 72. 
 
 . 30 Pa. St. 9. 
 
 . 2 Md. 429. 
 
 . 147 Iil. 66. 
 
 . 37 Me. 165. 
 
 . Ki Yerger (Tenn.), 59 
 
 . 4 Hill (N. Y.), 140. 
 
 . 101 Cal. 16. 
 
 277. 
 
 11 st. 109 . 
 46 St. 316 . 
 36 I). Ill 
 97 D. 82 . 
 
 
 
 
 
 
 68 Ark Hi7. 
 . 155 III. 98. 
 
 8 Ala. 137. 
 . 100 Mass. 136
 
 REFERENCE TABLE. §§ 277-297 
 
 § 277. 4 St. 182 84 Ky. 1. 
 
 10 St. 266 81 Me. 450. 
 
 38 D. 317 12 Gill & J. (Md.) 399. 
 
 25 li. 613 6 Oregon, 231. 
 
 91 D. 262 14 Rich (S. C), 129. 
 
 278. 13 D. 484 1 Mo. 164. 
 
 44 D. 593 4 Harr. (Del.) 389. 
 
 54 D. 379 10 Ga. 190. 
 
 26 D. 631 16 Pick. (Mass.) 87. 
 
 4 St. 147 83 Ky. 198. 
 
 36 I). 543 3 Scam. (111.) 238. 
 
 62 D. 424 1 Sneed (Tenn.), 637. 
 
 280. 15 D. 156 3 Mart. N. S. (La.) 236. 
 
 14 D. 206 3 Greenlf. (Me.), 22. 
 
 1 D. 488 2 Wash. (Va.) 282. 
 
 79 D. 490 17 Ind. 572. 
 
 82 D. 163 43 N. H. 415. 
 
 58 I). 100 8 Texas, 62. 
 
 34 D. 492 8 Watts (Pa.), 517. 
 
 70 D. 302 18 Texas, 682. 
 
 25 R. 760 3 Color. 332. 
 
 281. 23 D. 478 4 La. 188. 
 
 39 D. 601 23 Me. 60. 
 
 56 D. 688 35 Me. 73. 
 
 12 D. 479 5 Mart. (La.) 459. 
 
 36 D. 185 10 Watts (Pa.), 351. 
 
 94 D. 214 5 Cold. (Tenn.) 1. 
 
 36 D. 228 6 Whart. (Pa.) 294. 
 
 283. 69 D 450 25 Mo. 94. 
 
 285. 27 D. 628 1 Port. (Ala.) 313. 
 
 73 D. 565 13 Cal. 24. 
 
 62 D. 424 1 Sneed (Tenn.), 637. 
 
 286. 37 D. 761 4 Ark. 44. 
 
 287. 28 D. 70 3 Dana (Ky.), 247. 
 
 293. 55 D. 376 6N.Y. 9. 
 
 294. 58 D. 272 22 Ala. 621. 
 
 63 D. 139 5 Cal. 418. 
 
 71 D. 559 45 Me. 507. 
 
 74 D. 522 14 Md. 184. 
 
 94 D. 115 8R. I. 415. 
 
 296. 30 D. 723 18 Me. 308. 
 
 2 St. 373 108 N. Y. 137. 
 
 58 D. 389 3 Cal. 115. 
 
 15 D. 464 5 Cowen (N. Y.), 188. 
 
 297. SOD. 574 6 Port. (Ala.) 109. 
 
 41 St. 304 149 111. 486. 
 
 23 D. 471 4 La. 51. 
 
 46 D. 100 1 Texas, 250. 
 
 15 D. 633 3McCord (S. C), 298.
 
 §§ 298-306 
 
 REFERENCE TABLE. 
 
 li 
 
 § 298. 38 T>. 317 
 51 D. 746 
 10 St. 48 . 
 
 41 St. 630 
 3 D. 265 . 
 22 D. 203 
 34 D. 116 
 62 D. 714 
 
 15 D. 156 
 
 299. 8 St. 643 . 
 32 St. 656 
 
 42 St. 627 
 84 I). 582 
 
 46 D. 447 
 26 D. 379 
 
 19 D. 722 
 
 300. 58 D. 589 
 12 St. 819 
 54 D. 639 
 69 D. 181 
 25 D. 677 
 
 43 St. 127 
 
 301. 48 St. 800 
 10 D. 100 
 74 D. 522 
 10 St. 23 
 97 D. 425 
 
 87 D. 240 
 
 88 D. 622 
 
 302. 21 D. 608 
 51 D. 142 
 
 305. 35 D. 54 . 
 24 D. 517 
 
 20 R. 50 . 
 84 D. 114 
 
 10 St. 143 
 31 St. 350 
 86 I). 848 
 
 16 St. 224 
 82 T>. 448 
 48 1). 349 
 
 306. 86 D. 643 
 24 St. 866 
 76 P. 6fi2 
 
 47 D. 242 
 
 11 St. 808 
 3 St. 106 
 14 St L38 
 72 I). 819 
 
 12 Gill & J. (Md.) 399. 
 5 Texas, 23. 
 
 117 Ind. 356. 
 119 Mo. 41. 
 
 3 Day (Conn.), 166. 
 7 Grecnlf. (Me.) 370. 
 
 4 How. (Miss.) 163. 
 20 Ala. 145. 
 
 3 Mart. N. S. (La.) 236. 
 
 38 Minn. 85. 
 109 Mo. 78. 
 30 Neb. 843. 
 
 26 Texas, 475. 
 
 4 Oilman (111.), 221. 
 1 Port. (Ala.) 265. 
 
 1 Leigh (Va.), 42. 
 15 111. 20. 
 
 115 N. Y. 506. 
 33 Me. 558. 
 11 Md. 81. 
 4 Dev. (N. C.) 1. 
 
 104 Cal. 524. 
 67 Vt. 76. 
 
 4 Conn. 60. 
 14 Md. 184. 
 
 117 Ind. 71. 
 42 Miss. 1. 
 37 111. 82. 
 37 Vt. 599. 
 
 2 Leigh (Va.),200. 
 
 13 Smedes & M. (Miss.) 93. 
 2 Ark. 229. 
 
 2 Yerger (Tenn.), 599. 
 
 39 Wis. 390. 
 45 N. H. 52. 
 
 118 Ind. 350. 
 
 17 Colorado, 596. 
 
 27 Texas, 491. 
 13 Colorado, 525. 
 13 Ohio St. 446. 
 
 1 Ind. 21. 
 
 27 Texas, 491. 
 
 105 Mo. 85. 
 30 Ga. 440. 
 
 4 Denio (N. Y.), 118. 
 17 Oregon, 204. 
 82 Va. 359. 
 82 Ga. 23. 
 37 N. II. 9.
 
 In REFERENCE TABL7J. §§ 306-311 
 
 § 306. 42 St. 121 103 Cal. 387 
 
 307. 54 1). 030 33 Me. 414. 
 
 79 D. 440 16 Ind. 429. 
 
 36 .St. 750 1 So. Dakota, 483. 
 
 12 D. 568 Walker (Miss.), 298. 
 
 15 D. 632 3 McCord (S. C), 280. 
 
 15 D. 39 5 Littell (Ky.), 22. 
 
 53 St. 165 112 Cal. 101. 
 
 308. 7 R. 147 31 Iowa, 397. 
 
 20 R. 695 65 Me. 251. 
 
 47 D. 377 16 Ohio, 373. 
 
 2 R. 581 40 Ga. 356. 
 
 23 R. 412 11 R. I. 86. 
 
 83 D. 446 2 Kansas, 70. 
 
 94 D. 742 34 Cal. 391. 
 
 309. 41 St. 634 119 Mo. 94. 
 
 12 D. 350 2 Marsh. A. K. (Ky.) 10. 
 
 70 D. 100 8 Ohio St. 201. 
 
 73 D. 565 13 Cal. 24. 
 
 80 D. 189 43 N. H. 50& 
 
 1 St. 191 22 Fla. 250. 
 
 6 St. 587 100 N. C. 294. 
 
 49 D. 509 8 Pa. St. 240. 
 
 90 D. 671 32 N. J. Law, 403. 
 
 08 D. 404 5 Cold. (Term.) 326. 
 
 56 R. 360 . . v 67 Iowa, 619. 
 
 50 St. 568 45 Nebraska, 741. 
 
 310. 47 D. 365 16 Ohio, 111. 
 
 311. 39 St. 156 ....... 148111.76. 
 
 15 St. 138 128 111. 510. 
 
 33 D. 350 4 N Y 71 
 
 60 D. 426 2 Wis.421. 
 
 62 D. 546 13 Texas, 68. 
 
 41 D. 675 15 N. H. 9. 
 
 26 R t- 91 46 Kansas, 231. 
 
 3 7 St. 228 147 111. 496. 
 
 26 D. 131 4 Rawle (Pa), 27a 
 
 77 I>. 651 38 Miss. 476. 
 
 81 !>• 626 19 Md. 72. 
 
 15 D. 78 1 Mon. (Ky.) 16. 
 
 83 D 350 21 Ind. 334. 
 
 92D-410 23 Iowa, 81. 
 
 22 St. 611 126 Ind. 507. 
 
 23 St. 05 20 Oregon, 96. 
 
 3 St. 616 ........ H3 Ind. 10. 
 
 6 D. 88 9 Mass. 462. 
 
 79 D. 244 30 Conn. 190. 
 
 15 R- 660 48 Ga. 50. 
 
 44 B. 562 17 Conn. 500.
 
 §§ 311-337 
 
 REFERENCE TABLE. 
 
 liii 
 
 311. 
 
 55 D. 494 
 
 
 73 D. 683 
 
 
 1 D. 316 . 
 
 312. 
 
 31 D. 760 
 
 313. 
 
 48 D. 104 
 
 
 54 1). 217 
 
 315. 
 
 81 I). 620 
 
 325. 
 
 10 D. 606 
 
 
 4.J I). 53 . 
 
 
 24 St. 678 
 
 326. 
 
 69 D. 728 
 
 
 53 H. 342 
 
 
 23 D. 417 
 
 
 55 I). 137 
 
 
 65 St 476 
 
 
 45 D. 621 
 
 
 35 1). 690 
 
 
 95 ] ). 572 
 
 
 63 St. 241 
 
 
 64 St. 745 
 
 
 22 D. 279 
 
 
 50 D. 593 
 
 
 68 I). 73 
 
 
 90 D. 287 
 
 
 66 St. 267 
 
 
 19 D. 595 
 
 
 5:; St. 437 
 
 
 54 St. 216 
 
 
 67 1). 106 
 
 
 20 D. 158 
 
 
 32 D. 689 
 
 
 50 D. 445 
 
 327. 
 
 51 I). 584 
 
 
 26 St. 523 
 
 328 
 
 5 St. 494 
 
 
 19 K. 310 
 
 
 31 1). 238 
 
 329 
 
 83 1). 249 
 
 
 1 I). 121 
 
 
 07 I). 51 
 
 330 
 
 18 1). 684 
 
 333. 
 
 :;:; I). 227 
 
 
 58 I). 488 
 
 
 90 I). 122 
 
 335. 
 
 35 D. 472 
 
 336. 
 
 54 I). 515 
 
 337. 
 
 18 D. 110 
 
 
 30 R. 746 
 
 
 47 K. 458 
 
 16 Pa. St. 241. 
 
 28 Conn. 433. 
 
 1 Yeates (Pa.), 533. 
 12 Conn. 491. 
 
 2 Fla. 207. 
 
 11 Ark. 519. 
 19 .Mil. 72. 
 
 1 McCord Eq. (S. C.) 304. 
 
 2 Gilma'n (111.), 327. 
 «7 Va. 706. 
 
 3 Jones Eq. (X. C.) 177. 
 
 12 Oregon, 221. 
 
 7 Marsh. J. J. (Ky.) 448. 
 15 Mo. 160. 
 
 101 Iowa. 423. 
 3 Pa. St. 21. 
 
 8 Paige (X. Y.). 309. 
 49 111. 53. 
 
 171 111. 402. 
 '.14 Va 557. 
 
 3 Bland Mil.), 392. 
 
 29 Me. 361. 
 5 Wis. 551. 
 12 Minn. 145. 
 174 111. :)44. 
 
 4 Ohio, 175. 
 97 Ky. 757. 
 
 01 Ark. 354. 
 14 X. Y. 9. 
 
 ;; Marsli. J. J. (Ky.) 492. 
 
 2 Dev. ,<: B. Eq. (X. C.) 31. 
 
 11 111. 157. 
 
 12 Pa. St. 50. 
 129 X. Y. 274. 
 123 111. 111. 
 114 Mass. 69. 
 
 3 Green Ch. (X. J.) 16. 
 32 111. 45. 
 
 1 Johns. Cas. (N. Y.) 436. 
 99 Mass. 634. 
 
 I Vt. 367. 
 
 9 Leigh (Va.), 119. 
 1?, <ia. 1. 
 
 12. Mien (Mass.), 1. 
 
 II X II. m. 
 
 12 I!. Mon. (Ky.) 191. 
 7 Conn. 307. 
 45 Wis. 834. 
 107 111. 517.
 
 IlV REFERENCE TABLE. §§ 337-383 
 
 § 337. 52 St. 116 ....... 110 Cal. 579. 
 
 14 D. 642 11 Serg. & R. (Pa.) 422. 
 
 48 D. 742 10 Smedes&M. (Miss.) 159. 
 
 60 D. 335 10 Gratt. (Va.) 358. 
 
 24 St. 399 105 Mo. 472. 
 
 338. 73 D. 555 12 Cal. 433. 
 
 340. 12 D. 508 7 Martin (La.), 318. 
 
 62 D. 214 . 3 Ohio St. 105. 
 
 342. 13 D. 564 1 Cowen (N. Y.), 543. 
 
 95 D. 722 24 Iowa, 192. 
 
 13 R. 270 23 Ohio St. 565. 
 
 343. 26 D. 507 7 La. 440. 
 
 32 D. 54 6 Dana (Ky.), 17. 
 
 74 D. 463 46 Me. 400. 
 
 16 St. 292 129 111. 582. 
 
 344. 2 D. 634 Conf. (N. C.) 115. 
 
 59 D. 431 7 N. Y. 555. 
 
 345. 75 D. 714 12 Rich. (S. C), 13. 
 
 99 D. 556 51 111. 382. 
 
 2D. 61 1 Day (Conn.), 142. 
 
 16 D. 199 5 Martin, N. S. (La.) 464. 
 
 48 D. 590 1 Cusli. (Mass.) 29. 
 
 350. 42D.51. 7 Hill (N. Y.), 95. 
 
 92 D. 159 44 111. 142. 
 
 358. 85 D. 316 34 111. 422. 
 
 57 D. 65 9 Cush. (Mass.) 497. 
 
 67 D. 89 13 N. Y. 587. 
 
 367. 38 D. 644 3 HM1 (N. Y.), 399. 
 
 369. 26 D. 232 . . . . . . . 4 Yerger (Tenn.), 270. 
 
 371. 15 D. 242 3 Cowen (N. Y.), 75. 
 
 373. 85 D. 327 34 111. 476. 
 
 83 D. 712 7 Allen (Mass.), 548. 
 
 379. 55 St. 488 73 Miss. 110. 
 
 10 D. 232 19 Johnson (N. Y.), 345. 
 
 9D. 736 3 Haywood (Tenn.), 147. 
 
 38 D. 124 4 Scam. (111.) 117. 
 
 23 D. 36 2 Pen. & W. (Pa.) 439. 
 
 74 D. 169 22 111. 610. 
 
 381. 58 D. 740 36 Me. 176. 
 
 382. 7 R. 536 105 Mass. 391. 
 
 53 R. 22 33 Minn. 175. 
 
 8D. 658 3 Serg. & R. (Pa.) 490. 
 
 58 D. 740 36 Me. 176. 
 
 92 D. 248 46 111. 230. 
 
 383. 7D.240 2 Conn. 69. 
 
 21 D. 492 1 Bailey (S.C.), 611. 
 
 32 R. 86 , . . 65 Ind. 582. 
 
 46 R. 406 75 Me. 387. 
 
 26 D. 232 4Yerger (Tenn.), 270.
 
 §§ 383-385 REFERENCE TABLE. lv 
 
 §383. 52 D. 156 2 Pinney (Wis.), 243. 
 
 59 R. 326 35 Minn. 294. 
 
 50 D. 249 19 Conn. 370. 
 
 12 D. 287 Litt. Sel. Cas. (Ky.) 153. 
 
 49 D. G08 2 Strob. (S. C.) 608. 
 
 384. 50 R. 290 137 Mass. 231. 
 
 5D. 727 2 Martin (La.), 138. 
 
 385. 5 R. 540 41 Ga. 449.
 
 LIST OF TREATISES CITED. 
 
 Amos. 
 
 Austin. 
 
 Best. 
 
 Black. 
 
 I'.l. Comm. 
 
 Broom's Legal 
 
 Maxims. 
 Burlamaqui. 
 ( Sicero. 
 Clark. 
 
 ( looley C. Law. 
 ( looley Const. Lim. 
 Dillon. 
 
 Holland. 
 Jameson. 
 Kent. 
 Lorimer. 
 Maine Ancient 
 
 Law. 
 Mai no Early Hist. 
 
 Inst. 
 Maine Early Law 
 
 and Custom. 
 Markby. 
 Morey. 
 Morgan Legal 
 
 Maxims. 
 Pollock. 
 
 Pollock and Mait- 
 
 land. 
 Ram Leg. J. 
 Reeve. 
 
 Story Conf. L. 
 Summa Ph. Zig- 
 
 liara. 
 Summa S. Th. 
 
 Aquin. 
 Taylor Med. Jur. 
 Vattel. 
 Wambaugh. 
 Walker. ' 
 Wash. R. P. 
 Whart. I. L. Dig. 
 Williams R. P. 
 Wilson. 
 
 Woolsev. 
 
 Science of Law. 
 Jurisprudence. 
 Presumptions. 
 Interpretation of Laws. 
 Blackstone's Commentaries. 
 Ibid. 
 
 Natural and Political Law. 
 The Laws. 
 
 Practical Jurisprudence. 
 Constitutional Law. 
 Constitutional Limitations. 
 Laws and Jurisprudence of 
 
 England and America. 
 Jurisprudence. 
 ( onstitutional Convention. 
 ( 'ommentaries. 
 Institutes of Law. 
 Ibid. 
 
 Early History of Institutions. 
 
 Ibid. 
 
 Elements of Law. 
 Outlines of Roman Law. 
 Ibid. 
 
 Essays in Jurisprudence and 
 
 Ethics. 
 History of English Law. 
 
 Science of Legal Judgment. 
 History of English Law. 
 Conflict of Laws. 
 Zigliara's Summa Philo- 
 
 Bophica. 
 S. Thomas Aquinas' Summa 
 
 Theologica. 
 Medical Jurisprudence! 
 Law of Nations. 
 Study of Cases. 
 American Law. 
 Washburn's Real Property. 
 International Law I tjgest. 
 Williams' Real Property. 
 James Wilson's Works. 
 
 2 vols. 
 International Law. 
 
 New York, 1874. 
 
 London, 1885. 
 
 Pliila., 186!). 
 
 St. Paul, 1890. 
 
 Anv edition, side-paging. 
 
 Phila., 1882. 
 
 I'ln'Ia.. 1832. 
 Bonn Classical Library. 
 Cambridge, 1883. 
 Boston, 18'J8. 
 Boston, 1883. 
 Boston, 4th ed., 1890. 
 
 London and New York, 1896. 
 Chicago, 4th ed., 1887. 
 Any edition, side-paging. 
 Edinburgh, 1872. 
 New York, 1875. 
 
 New York, 1875. 
 
 London, 1883. 
 
 London, 1890 (4th ed.). 
 New York, 1884. 
 Cincinnati, 1878. 
 
 London, 1882. 
 
 Boston, 1899 
 
 Phila., 1871. 
 
 Finlason's ed., Phila., 1880. 
 
 Lost, in, 1872. 
 
 Any edition. 
 
 Any edition. 
 
 Anv edition. 
 Phila.. 1855. 
 Boston, 1894. 
 Boston, 1882. 
 Boston, .".Hi ed., 1887. 
 Washington, 1887. 
 Phila., 1894. 
 Chicago, L896. 
 
 New York, 1891.
 
 lviii 
 
 LIST OF REPORTS CITED. 
 
 LIST OF REPORTS CITED. 
 
 CITATION. 
 
 REPORT. 
 
 REMARKS. 
 
 Dall. 
 
 Dallas. 
 
 U. S. Supreme Court. 
 
 Cranch. 
 
 Cranch. 
 
 
 Wheat. 
 
 Wheaton. 
 
 
 Pet. 
 
 Peters. 
 
 
 How. 
 
 Howard. 
 
 
 Black. 
 
 Black. 
 
 
 Wall. 
 
 Wallace. 
 
 
 U.S. 
 
 United States. 
 
 
 D. 
 
 American Decisions. 
 
 Select Cases from State Reports. 
 
 R. 
 
 American Reports. 
 
 
 St. 
 
 American State Reports. 
 
 (i « K a
 
 ELEMENTS 
 
 OF 
 
 AMERICAN JURISPRUDENCE. 
 
 CHAPTER I. 
 
 OF THE NATURE AND AUTHORITY OF LAW. 
 
 § 1. Of the Essential Nature of Law. 
 
 Law, in its widest sense, is a rule imposed by one being 
 upon itself or upon some other being. It is a rule (regula, 
 from rer/o, to govern) ; a norm or standard of being or conduct 
 determining the nature and attributes of a thing or regulating 
 its actions or forbearances. It is imposed by a being possess- 
 ing and exercising authority over itself or other beings, and 
 enforcing obedience to the rule either by making its observ- 
 ance inevitable, or by attaching to its violation certain pen- 
 alties. It is directed either to the being from whom it 
 emanates, as where a man makes rules for his own guidance, 
 or a State adopts a constitution, or the Creator establishes 
 laws governing his intercourse with his creatures; or it is 
 ordained for other beings, as where the Almighty gives ex- 
 istence and specific characteristics to a creature, or an artisan 
 fixes the modus operandi of a machine, or a sovereign pro- 
 scribes laws for the government of his subjects. It origi- 
 nates in the reason of the lawgiver, which perceives the 
 relations between causes and effects and the consequences 
 which must flow from different forma of being or different 
 modes of action, and selects the forms and modes adapted to 
 
 i
 
 2 AMERICAN JURISPRUDENCE. §§ 2, 3 
 
 the purposes to be accomplished by the observance of the law. 
 Cumlex sit qucedam regulaet . . . actuum mensura Jiecessarib 
 ad ipsam rationem spectat. 
 
 Head 1 Bl. 0>m., p. 38 ; Holland, Ch. ii ; Summa S. Th. Aquin., 
 Pr. Sec, Quest, xc; Summa Ph. Zigliara, M. 22 ; 
 Cicero, The Laws, Book i, § iv. 
 
 § 2. Of the Eternal Law. 
 
 Behind all other beings lies the Supreme, Self-Existent 
 Being, — the Great First Cause from whom all secondary 
 causes and effects proceed. His reason conceives, and his will 
 summons into actual existence, the natures and attributes of 
 all things with their relations to and their operation upon one 
 another, and thus imposes upon them a law which determines, 
 even to its minutest detail, the evolution and development of 
 the entire Universe from its beginning to its end, except 
 within that narrow field of action whose government He has 
 committed to the reason and will of His intelligent creatures. 
 The law by which He thus rules the Universe is the Eternal 
 Law, — infallible, irresistible, unchangeable save by Him- 
 self, — manifesting itself everywhere outside the voluntary 
 acts of rational beings, and exercising upon these a powerful 
 influence through the qualities with which it has endowed 
 them and the conditions by which it surrounds them. All 
 knowledge is the knowledge of this law, and knowledge of 
 this law is knowledge of the Lawgiver Himself; of the Abso- 
 lute, the Infinite, the Unconditioned; of the Ultimate Beauty, 
 Goodness, and Truth. Est aliqua lex ceterna, ratio videlicet 
 gubernativa totius universi in mente divina existens. 
 
 Read Cicero, The Laws, Book i, § vii, Book ii, § iv; Summa S. 
 Th. Aquin., Pr. Sec, Quest, xci, Art. i, Quest, xciii; 
 Summa Ph. Zigliara, M. 23. 
 
 § 3. Of Natural Law. 
 
 The manifestation of this eternal law through finite per- 
 sons, objects, and events, especially through such as are per-
 
 § 4 NATURE AND AUTHORITY OF LAW. 3 
 
 celvable by man, is often called the Law of Nature, or the 
 Natural Law. By obedience to the eternal law all creatures 
 participate in the supreme reason from which it originates, 
 enjoy the advantages and achieve the ends which it proposes, 
 and work out, each for itself, the destiny to which it has 
 predetermined them. The law thus written in the forms and 
 properties of matter, operating through the instincts and pro- 
 clivities of sentient beings, and unfolding itself incessantly in 
 their individual and collective history, is properly styled the 
 Law of Nature, — the law which their nature exhibits and 
 which it is their nature to obey. But this law, b}^ what- 
 ever name it may be called, is still the same eternal law, 
 inseparable in this part of it whose effects our minds can 
 apprehend from those parts which control creatures and re- 
 gions beyond our physical and intellectual vision; the law 
 that binds all beings, physical and spiritual, into one indissol- 
 uble Universe which is advancing, under the direction of this 
 law, toward a goal which only its creator, director, and law- 
 giver can foresee. 
 
 Read 1 Bl. Com., pp. 39-41; Holland, Ch. iii, pp. 29-33; 
 Summa S. Th. Aquin., Pr. Sec, Quest, xci, Art. ii, 
 Quest, xciv; Summa Ph. Zigliara, M. 24. 
 
 § 4. Of Positive Law. 
 
 A rule may be imposed by one being upon another being 
 in either of two ways: (1) By immediately and irresistibly 
 controlling the nature, attributes, or conduct of the subject- 
 being; (2) By commanding the subject-being how to act or to 
 forbear. The latter mode is possible only when the subject- 
 being possesses reason and will, and when its actions and for- 
 bearances are under its own control. Thus the eternal law 
 governs all beings, actions and events, except the purely vol- 
 untary acts of rational creatures, -in the first method, and 
 those voluntary acts in the second method. To the imposi- 
 tion of a rule in the second method it is necessary that the 
 rule should be expressed and promulgated; that is, that it 
 should be positively prescribed and communicated by the law-
 
 4 AMERICAN JURISPRUDENCE. § 5 
 
 giver to the rational subject-being in a manner intelligible to 
 him, and so become a recognized and practical guide of life 
 and conduct. This form of law is known as "Positive Law," 
 and is regarded by many writers as the only form to which 
 the name " Law " can properly be applied. 
 
 Read Austin, Lect. i, pp. 86-103; Holland, Ch. iv, pp. 38-40; 
 Summa S. Th. Aquin., Pr. Sec, Quest, xc, Art. iv; 
 Suinma Ph. Zigliara, M. 25, i. 
 
 § 5. Of Divine Law. 
 
 Positive Law is divided, so far as the human race is con- 
 cerned, into two groups of rules: (1) Divine Law; and (2) 
 Human Law. These groups of rules do not differ in their 
 ultimate origin, for both are expressions of the eternal law. 
 Nor do they differ in their ultimate end, which is the devel- 
 opment, elevation, and happiness of mankind. Nor do they 
 rest upon a different authority, for human law, truly so 
 called, is, like the divine, a rule imposed by the supreme 
 reason and will of God. Their distinction resides in the 
 beings by whom they are expressed and promulgated to men. 
 Divine Law is the rule prescribed directly to His rational 
 creatures by the Creator Himself. It is a communication 
 to them of such otherwise undiscoverable or unintelligible 
 portions of the eternal law as may be necessary to enable 
 them to govern their mental, moral, and physical operations in 
 accordance with the attributes of their own natures and the 
 end for which they were created. That such a communication 
 should be made whenever it becomes necessary, and so far as 
 it is necessary, is inevitable, since otherwise the supreme 
 reason would contradict itself and defeat its own designs. 
 Whether and to what extent such a Divine Law has actually 
 been prescribed is a question for the philosopher and 
 theologian. 
 
 Kead 1 Bl. Com., p. 42; Holland, Ch. iii, p. 36; Markby, 
 §§ 104-115; Summa S. Th. Aquin., Pr. Sec, Quest 
 xci, Art. iv ; Summa Ph. Zigliara, M, 25, ii-iv.
 
 § 6 NATURE AND AUTHORITY OF LAW. 5 
 
 § 6. Of Human Law. 
 
 Human Law is a rule prescribed by man for his own gov- 
 ernment or that of other men. Human Law, like Natural 
 Law and Divine Law, is also part of the eternal law. For 
 since the eternal law determines the nature and attributes 
 of man and the general conditions by which he is surrounded, 
 as well as the circumstances on which his personal disposi- 
 tion, mental and moral strength or weakness, and by far the 
 great majority of his actions and forbearances depend, the 
 held within which his own reason and will exercise dominion 
 evidently must be very narrow, his purely voluntary acts 
 comparatively few, and his responsibility for his life and 
 conduct, and the practical rules which he can make and apply 
 for their direction, correspondingly limited. Hence it re- 
 sults that a very large proportion of human laws, commonly 
 so called, are in reality mere spontaneous recognitions and 
 affirmations of the truths and dictates of the eternal law, to 
 which man has added nothing except the verbal garments in 
 which they are clothed. Furthermore, within the sphere of 
 action which is under human control, and where the intellect 
 of man is competent to devise and his will is free to impose 
 rules of life and conduct, the laws which he prescribes can 
 be, and ought to be, and generally are in accordance with the 
 dictates of the supreme reason from which his own proceeds, 
 and consequently are a part of the eternal law. For as it is 
 apparent from the operations of the eternal law in other 
 spheres of action that every secondary cause is adequate to 
 the production of its intended effect; that every being is 
 qualified for the attainment of the end for which it was cre- 
 ated; that every rational creature is endowed with intellect 
 and will sufficient to enable it to direct its voluntary acts and 
 forbearances along the lines of its own normal development 
 and happiness; so when the mind of man applies itself to 
 the careful study of matters within its grasp and honestly 
 endeavors to establish rules tending to promote his physical, 
 mental and moral welfare, it must inevitably succeed, and 
 the new rules it formulates must necessarily conform to and 
 express the dictates of the eternal law in reference to the
 
 6 AMERICAN JURISPRUDENCE. § 7 
 
 action or forbearance which the rule commands. Thus human 
 laws, properly so called, — the productions of right reason and 
 an upright will, — are dictated in the last resort by the 
 supreme reason, are binding in conscience as well as in social 
 comity, and are sanctioned not merely by human authority, 
 but also by the authority of God. (a) Est in hominibus lex 
 qucedam naturalis, participatio videlicet legis ceternce, secundum 
 quam bonum et malum discernunt. 
 
 Read 1 Bl. Cora., p. 43 ; Cicero, The Laws, Book i, §§ viii-xii; 
 Lorimer, Book i, Ch. iii, vi, viii, ix; Burlaraaqui, Part 
 i, Ch. i-viii, Part ii, Ch. i-xii ; Morey, pp. 219-222; 
 Summa S. Th. Aquin., Pr. Sec, Quest, xci, Art. iii, 
 Quest, xcv; Summa Ph. Zigliara, M. 25, v-ix. 
 (a) 54 D. 21?. 
 
 § 7. Of Human Lawgivers : the State. 
 
 Human Law, as thus defined, embraces all those rules, 
 whatever be their character or scope, which man in the exer- 
 cise of right reason and honest purpose establishes for the 
 government of himself or of his fellow men. Some are pre- 
 scribed by individuals for the direction of their personal con- 
 duct, others by families for the promotion of their united 
 peace and prosperity, others by larger associations for the 
 accomplishment of the objects for which they were organized. 
 These rules, being evoked by conditions which result from 
 the operation of the eternal law, and devised and enforced 
 by faculties with which the eternal law has endowed man in 
 order to enable him to meet these conditions, are truly the 
 projection of the eternal law into the daily actions and for- 
 bearances of men, and, therefore, are within their sphere 
 authoritative and infallible. Pre-eminent among these 
 various systems of rules is that which the political society, or 
 State, adopts for its own guidance and the direction of its 
 subjects. A political society or State is distinguished from 
 all other human associations by the possession of sover- 
 eignty, or supreme authority over itself and its members. In 
 form and extent a State may be a single family, or a group of
 
 § 7 NATURE AND AUTHORITY OF LAW. 7 
 
 families united iu a tribe, or many tribes confederated in a 
 nation. It may occupy a few square miles of territory and 
 consist of a few scores of individuals, or it may permanently 
 control a continent populated by hundreds of millions of its 
 citizens. But if it is subject to no human authority outside 
 itself, and within itself exercises supreme dominion over its 
 own operations and over the lives and conduct of its members, 
 it possesses sovereignty and answers to the definition of a 
 political society or State, (a) The State, like man himself, to- 
 gether with the sovereignty which it enjoys, is the creature 
 of the eternal law, one of the chief among the agencies through 
 which the Infinite Reason works out its vast designs. Man 
 is by nature a social being. His inherent attributes and 
 instincts irresistibly impel him into associations with other 
 men, some sexual, some domestic, some co-operative. His 
 happiness and development depend upon the effect produced 
 upon him by the actions and reactions which in society alone 
 are possible, and thus human society becomes an essential 
 factor in the advancement of the Universe itself. But society 
 implies peace and order. Conflict and antagonism are not 
 society, nor is it possible that in an atmosphere of strife and 
 contention human relations should subsist and exercise their 
 proper influence upon mankind. The existence of society re- 
 quires that rights should be defined and respected; that 
 duties should be recognized and observed; that injuries, if 
 any are committed, should be redressed. It also requires 
 that when necessary these rights should be protected, these 
 duties enforced, and these wrongs punished by an authority 
 which cannot be resisted or gainsaid. Hence, as it is the 
 function of human laws to define rights, to prescribe duties, 
 and to prohibit injuries, so far as these are left undefined, 
 unprescribed, and unprohibited by the divine law, and as 
 sovereignty alone can adequately protect these rights, enforce 
 • duties and redress these wrongs, it follows that from 
 the eternal law which establishes society the sovereignty of 
 the State and its right and obligation to make and admin- 
 ister laws for its own government are likewise derived. 
 Human Laws made by the State within the field left open to
 
 8 AMERICAN JURISPRUDENCE. § 8 
 
 it by the Law of Nature and the Divine Law, and in the exer- 
 cise of right reason and integrity of purpose, are thus a part 
 of the eternal law, and above all other human laws are its 
 most perfect and authoritative expression. Prceter ceternam 
 et naturalem legem est lex qucedam ab hominibus inventa, secun- 
 dum quam in particulari disponentur quce in lege naturae con- 
 tinentur. . . . Necessarium fuit ad quietam et pacificam 
 hominum vitam aliqiws ab hominibus leges poni, quibus homines 
 improbi metu pmnce a vitiis cohiberentur et virtutem assequi 
 possent. . . . Quoniam . . . in temporali lege nihil est justum 
 ac legitimum quod non sit ex lege ceterna profectum, certum 
 est omnes leges in quantum participant de ratione recta in 
 tantum a lege ceterna, derivari. 
 
 Read 1 Bl. Com., pp. 47-49 ; Holland, Ch. iv, pp. 40-48, Ch. xvi, 
 pp. 325-342; Markby, §§ 1-14, 45-49 ; Austin, Lect. vi, 
 pp. 220-238, 290-338; Lorimer, Book iii, Ch. i-v; 
 Burlamaqui, vol. i, Part i, Ch* ix, x, Part ii, Ch. vi, 
 vol. ii, totum ; 1 Wilson, Part i, Ch. ii, iii ; Woolsey, 
 §§ 36-41, 52 ; Jameson, §§ 18-23, 27-33 ; Dillon, Lect. 
 v, pp. 144-154; Amos, Ch. vii, pp. 118-123 ; Vattel, 
 Book i, Ch. i, ii; Walker, Lect. ii ; Cooley, C. Law, 
 Ch. ii, pp. 20-22, 25, 26, 40-43, Ch. xiv, p. 295 ; Cooley, 
 Const. Lim., Ch. i, pp. 1,2; Maine, Early Hist. Inst., 
 Lect. xii, xiii; Clark, Part i, Ch. i-xvi ; Summa S. Th. 
 Aquin., Pr. Sec, Quest, xc, Art. ii— iv, Quest, xcv, 
 Art. i ; Summa Ph. Zigliara, M. 49-51. 
 (a) 79 D. 123 (131); 92 U. S. 542 (549-551); 1 Cranch, 
 137 (176). 
 
 § 8. Of the Validity of Laws Made by the State. 
 
 Sovereignty manifests itself through three acts: (1) The 
 act of making laws ; (2) The act of determining what rules of 
 law are to be applied in particular cases; (3) The act of 
 enforcing law. These acts are commonly known as the exer- 
 cise by the State of its legislative, judicial, and executive 
 functions. These functions are essentially distinct, even 
 although they may be practically discharged by the same 
 person in whom, as in an absolute monarchy, the entire sov-
 
 § 8 NATURE AND AUTHORITY OF LAW. 9 
 
 ereignty of the State resides. The valid exercise of the legis- 
 lative function requires that the lawmaker should thoroughly 
 understand the subject concerning which he is to legislate, 
 and that the subject itself should be within his legislative 
 powers; that in devising the rule to be prescribed he should 
 be guided by right reason both as to the substance of the 
 rule and the mode of its enforcement; and that in prescribing 
 the rule he should be animated solely by an honest purpose 
 to promote the welfare of the State and of its members. To 
 a valid judicial act it is necessary that the judge should 
 fully comprehend the facts to which he is about to apply the 
 law; that he should know what rule of law governs those 
 facts and should correctly understand and interpret it; and 
 that without bias toward either party or personal predilection 
 of his own in favor of any theory of law or fact, but with 
 the sole desire to do absolute justice between the contestants, 
 he should decide the controversy and define their rights 
 and duties. A valid executive act requires of the officer a 
 precise obedience to the mandate of the law, subjecting the 
 party against whom he acts to as little loss and inconvenience 
 in person and property as is consistent with his own exact 
 performance of his official duties. Sovereignty is conferred 
 upon the State by the eternal law to be used for the happiness 
 and development of its members, but not to be abused. Igno- 
 rant, hasty, or selfish legislation ; careless or impulsive judi- 
 cial acts; cruel and ruthless exercises of executive power are 
 abuses, not the use, of sovereignty. The laws and judg- 
 ments and relations to which they give birth, though emanat- 
 ing from the proper sources, and consequently in most cases 
 entitled to submission for prudential reasons, are not valid 
 laws or judgments or relations, do not participate in the 
 authority of the eternal law, nor bind the opinions nor the 
 conscience of the citizen, (a) Fortunately for society such in- 
 valid acts, though too often performed, speedily defeat them- 
 selves. The invalid law operates disastrously and becomes 
 obsolete or is repealed; the invalid judgment is soon over- 
 ruled; the wanton act of the executive recoils upon his own 
 head; and the celerity with which these reactions take place
 
 10 AMERICAN JURISPRUDENCE. § 9 
 
 is as reliable a test of the health of the body politic as the 
 rapidity of recovery from disease is of that of the human body. 
 In a well governed State only valid laws prevail; laws which 
 are (1) just, the offspring of right reason giving to every one 
 his due; (2) consistent with the divine law and the law of 
 nature and with every other manifestation of the eternal law; 
 (3) adapted to the existing condition of the State and its citi- 
 zens, capable of their observance, affirming their accepted 
 customs, removing their admitted evils, promoting their 
 common good; (4) clearly and definitely expressed; (5) uni- 
 versally promulgated to all by whom they are to be obeyed. 
 Omnem humanam seu positivam legem necesse est justam, hon- 
 estam,possiblli'm secundum naturam, secundum patrice consuetu- 
 dinem, loco temporique convenientem, necessariam, utilem, 
 manifestam, et pro communi civium utilitate scriptam esse. 
 
 Read 1 Bl. Com., p. 42 ; Cicero, The Laws, Book i, §§ xv, xvi, 
 Book ii, § v; Lorimer, Book i, Ch. viii, ix ; Book ii, 
 Ch. i; Summa S. Th. Aquin., Pr. Sec, Quest, xcv, 
 Art. ii, iii, Quest, xcvi, Art. iv-vi; Summa Ph. Zig- 
 liara, M. 52-55. 
 (a) 20 D. 360 (372); 48 D. 178 (183); 79 D. 236 (239). 
 
 § 9. Of the Uniformity of Laws. 
 
 It is within the possibilities of the future that all mankind 
 should be united into one political society exercising uni- 
 versal sovereignty throughout the globe. But this, at least 
 since the disruption of the first domestic society, has never 
 yet occurred. From the creation of the human race States 
 have constantly arisen, flourished, and disappeared. The 
 territory which they occupied, the individuals or families of 
 which they were composed, have remained, but the social 
 organisms have disintegrated and their members have formed 
 new cohesions, displacing old institutions with others better 
 suited to their own advanced condition, until the conceptions, 
 purposes, and methods of the modern, civilized, Christian 
 State have been evolved. All this has taken place in obedi- 
 ence to the workings of the eternal law, whose highest expres*
 
 §10 NATURE AND AUTHORITY OF LAW. 11 
 
 sions through the intellect and will of man, in the present 
 stage of their development, are these modern States, some 
 higher indeed than others, but each a prophecy and promise of 
 nobler, better, and more perfect States to come. In each of 
 them, as in all their predecessors, sovereignty resides, pre- 
 scribing and enforcing laws, and through their instrumen- 
 tality the Great First Cause directs, for the most part, the 
 voluntary actions and forbearances of men. Rut although 
 the sovereignty of every State, past or present, is necessarily 
 independent of every other and exercises absolute dominion 
 within its own territory and over its own people, producing 
 its own system of laws and institutions, yet have the laws and 
 institutions of all States been, in most respects, substantially 
 the same. Wherever the social conditions of these States 
 have been alike the laws devised to meet them have been also 
 similar, manifesting by this uniformity of effects the emana- 
 tion of the law from sources equally uniform, the right reason 
 and honest purpose which operating upon given premises 
 always reaches the same results. The study of Comparative 
 Jurisprudence daily furnishes new evidence of this uniformity 
 of law; the parallelism between the most ancient and the 
 most modern systems, between the institutions of people the 
 most widely separated from one another in lineage and habi- 
 tation, becoming more and more apparent the more thoroughly 
 the investigation is pursued. 
 
 Read Amos, Ch. ii, pp. 13-28. 
 
 § 10. Of the Civil Law and the Common Law. 
 
 Of all the systems of law devised by different States two 
 still exist, by one or the other of which nearly all the civil- 
 ized nations of the modern world are governed. These are 
 the Civil or Roman Law and the Common or English Law. 
 The Civil Law was originally the law of the Roman Empire, 
 the system adopted in the infancy of that mighty State and 
 developed by its wonderful social progress and its unsur- 
 passed practical wisdom during a period of over a thousand 
 years; and though the empire was long since dismembered,
 
 12 AMERICAN JURISPRUDENCE. § 11 
 
 its law still forms the basis of the legal systems of the new 
 organizations into which the territory and people of the 
 ancient empire have entered, — the States of modern Conti- 
 nental Europe. The Common Law is the law of the barbaric 
 races which inhabited Northern Europe from a remote an- 
 tiquity, and, by the fusion of these races in the British Isles, 
 by the vigorous evolution of their social and commercial life, 
 by the devoted labors of multitudes of able lawyers and 
 judges, and by the constant influence exerted on it by the 
 Civil Law, has been extending and advancing for more than 
 twenty centuries, and is to-day the law of England and the 
 United States and of all other English-speaking States 
 throughout the world. But though these two great systems 
 of law are independent of each other, they are by no means 
 wholly unlike or often contradictory. The conditions of the 
 peoples governed by them have been in many respects almost 
 identical, and answering to these conditions the laws have 
 been in substance and in mode of application frequently the 
 same. The study of each system thus elucidates the other, 
 and one can hardly now be called an educated lawyer who is 
 not tolerably familiar both with the Common and the Civil 
 Law. 
 
 Read 1 Bl. Com., pp. 79-81 ; 1 Kent, Lect. xxiii, pp. 515-548; 
 
 Markby, §§ 82-92; Dillon, Lect. i, pp. 22-27; Morey, 
 
 pp. 192-214. 
 
 § 11. Of International Law. 
 
 The systems of law prevailing among nations not governed 
 by the Civil or the Common Law exercise little influence upon 
 the modern world, and are gradually disappearing and being 
 supplanted by systems more or less closely following the 
 models of the Common and the Civil Law. Of these no fur- 
 ther mention need be made. But besides the systems of law 
 thus prescribed and enforced by individual States, there are 
 several others of a more universal character which, though 
 not originating in any exercise of political sovereignty, have 
 been recognized and adopted by these different States and have
 
 § 12 NATURE AND AUTHORITY OF LAW. 13 
 
 become imbedded in their individual laws. Chief among 
 these is the body of rules known as International Law, by 
 which States govern themselves in their intercourse with one 
 another. This law is not prescribed to independent States 
 by an exterior sovereign, for independent States cannot ac- 
 knowledge any sovereignty superior to their own. There is 
 indeed, in recent times, some tendency toward such a limited 
 confederation between civilized nations as may enable them 
 to exercise a collective authority over themselves as individ- 
 ual States in reference to matters in which they have a com- 
 mon interest, but such a confederation, however limited, 
 would involve the surrender by each State of its absolute 
 dominion over itself and its citizens, and therefore is not 
 likely at present to be realized. International Law now con- 
 sists of the customs which independent States, in the exercise 
 of right reason and with a view to their own welfare, have 
 voluntarily observed in their necessary relations with one 
 another, and these customs, having been adopted and sanc- 
 tioned by each individual State and expressly made a part of 
 its own laws, have become binding upon itself and its citi- 
 zens like any other portion of its laws. If citizens violate 
 these customs they are punished, as for other violations of 
 their local law. If States infringe them they subject them- 
 selves to the antagonism of other States and possibly to war. (a) 
 
 Read Woolsey, §§ 1-35. 
 
 (a) 9 Cranch, 191 ; 175 U. S. 677 (700, 701). 
 
 § 12. Of Maritime Law. 
 
 A second universal system of rules, not proceeding as such 
 from the sovereignty of any State, is Maritime Law. The 
 high seas, including the oceans and their waters outside the 
 range of a cannon shot from the shores of States, are not 
 within the territory of any sovereign, and are, therefore, 
 directly subject to no laws. They belong to the people of the 
 world at large as avenues of commerce, and as such have 
 been used indifferently by all nations since traffic and explor- 
 ation first began. Upon this common highway and in the
 
 14 AMERICAN JURISPRUDENCE. § 18 
 
 ports which fringe its boundaries, the citizens of all States 
 thus meet together, and enter into relations with one another 
 which, like all other human relations, must be defined and 
 protected by obligatory rules. Exercising their reason upon 
 their conditions, maritime peoples, in prehistoric ages, 
 evolved these necessary rules and acted upon them until they 
 became the "customs of the sea," recognized by all navigators 
 as binding upon them in honor and conscience, and finally 
 adopted and enforced by the independent sovereign States as 
 a part of their own laws. This system of Maritime Law is 
 the oldest and most universal of existing bodies of law, and 
 is administered by the Admiralty courts of every maritime 
 nation, whose judgments are binding throughout the civilized 
 world, (a) 
 
 Read (a) 14 Wall. 170 ; 12 How. 443. 
 
 § 13. Of Ecclesiastical Law. 
 
 Another system of rules not derived from the sovereignty 
 of the State, but still sanctioned and enforced as law, is 
 Ecclesiastical or Canon Law. Keligion has always been 
 regarded by human society in general as a potent factor in 
 the promotion of the welfare of mankind, and as such has 
 been fostered and encouraged by the State. The rules which 
 associations of men, organized for the preservation and propa- 
 gation of religion, have framed for their own government and 
 that of their members, have thus always been respected and 
 approved by States unless in their judgment these rules were 
 hostile to their own interests or sovereignty. In the ancient 
 world what pre-eminence was given to religious societies and 
 their laws is matter of familiar history. In the modern 
 world the Canon Law of the Catholic Church, intimately asso- 
 ciated in character, purpose, and jurisdiction with the Civil 
 Law, and the Ecclesiastical Laws of other Christian bodies, 
 and even of societies not adhering to the Christian faith, have 
 generally been regarded by all civilized States as binding 
 on the members of these societies when not antagonistic to 
 the interests of the States; and though not directly adminis-
 
 § 14 NATURE AND AUTHORITY OF LAW. 15 
 
 tered by political authority, they are recognized and followed 
 by the State in interpreting and enforcing the contracts and 
 relations into which such members voluntarily enter, (a) 
 
 Kead 1 Bl. Com., pp. 82, 83; Holland, Ch. v. p. 50; Amos, 
 Ch. vii, pp. 138-137 : Cooley, C. Law, Ch. xiii, pp. 
 23:3-240. 
 (a) 49 D. 608, note ; 13 Wall. 727 ; 11 R. 95 ; 49 R. 462. 
 
 § 14. Of the Different Significations of the Phrase " Com- 
 mon Law." 
 "Common Law" is a name of many significations. Its 
 broadest sense is that in which it has already been defined as 
 one of the two great systems now in force, the other being the 
 Roman or Civil Law; and in that sense it is used in the pres- 
 ent treatise except when otherwise particularly stated. It is 
 also often employed to denote those portions of our law which 
 have never been explicitly formulated by our legislative bodies, 
 but rest upon and are found in the decisions of our courts. 
 In this meaning it is equivalent to "unwritten law'" or "cus- 
 tomary law," and is antithetical to "written law " or "statute 
 law." In another and narrower sense it is applied as an 
 adjective phrase to courts and their procedure, — "common 
 law courts," "common law pleading," etc., — to distinguish 
 them from "chancery," "admiralty,'" "probate," and "mili- 
 tary " courts, etc. ; the common law courts and proceedings 
 having originated in the ancient customs of the Saxon and 
 Norman peoples, while the others were derived from the 
 Civil, the Maritime, the Ecclesiastical, or the International 
 Law. Common Law, in another usage, frequently adopted 
 by American lawyers, embraces the whole body of the English 
 law, whether formulated in Acts of Parliament or not. as it 
 existed at the severance of our colonies from the mother 
 country, so far as that law has been regarded by our courts 
 and legislatures as suited to the needs and conducive to the 
 welfare of our people; and in this usage it distinguishes the 
 laws derived from England from the laws which the American 
 people have devised and formulated for themselves. The
 
 16 AMERICAN JURISPRUDENCE. §§ 15, 16 
 
 student of Law will often be embarrassed by the multifarious 
 and sometimes inconsistent uses to which this term " Common 
 Law " is appropriated. He will be taught that certain acts 
 are "void at common law," only to learn a little later that 
 by our statute law these acts are valid. He will read that for 
 certain injuries " the common law gives no relief" while ample 
 remedies await the injured party in our courts of equity. 
 But he will soon discover that all legal terminology is in the 
 same hopeless confusion, and that to understand the language 
 of the law requires considerable knowledge of the law itself. 
 Head Dillon, Lect. v, p. 155. 
 
 § 15. Of the Common Law in the United States. 
 
 The Common Law, as it exists in the United States, is not 
 entirely homogeneous. Each of the States has its own system 
 of laws, and the United States as a nation adds to these an- 
 other system, all of which are of sovereign authority within 
 their respective spheres. In many details of minor import- 
 ance, and in some of greater moment, these systems of law 
 differ, so that it cannot be always assumed that rules which 
 are in force in one State are operative in others also, (a) Never- 
 theless, they are sufficiently alike to justify their treatment 
 as a unitary body of law by any jurist who disclaims the 
 purpose of entering into those minutiae of rule and procedure 
 which only the local lawyer ever pretends to understand. 
 Avoiding these it will be found that they constitute a proper 
 single subject for scientific and historical investigation. 
 Read (a) 13 St. 290, note ; 15 St. 672. 
 
 § 16. Of the Subjects-Matter of Law: Persons and Things. 
 
 Human Laws prescribed by the State in the exercise of its 
 sovereignty, like all other forms of positive law, emanate from 
 and are imposed upon persons. A person is a being endowed 
 with reason and free-will, and therefore capable of self- 
 determination, and a proper author and subject of positive
 
 § 16 NATURE AND AUTHORITY OF LAW. 17 
 
 law. (a) Persona est rationalis naturae individua substantia. 
 From the reason and free-will of the sovereign the law pro- 
 ceeds ; to the reason and free-will of the subject it is directed. 
 The law thus relates primarily to persons, though secondarily 
 and on account of persons it operates also upon things, and 
 with an examination of the classes, natures, and attributes of 
 persons, as the law regards them, the study of the law should 
 properly begin. Persons, in law, are of two classes : Natural 
 and Artificial. Natural persons are individual men and 
 women as they are produced by the processes of nature. Arti- 
 ficial persons are natural persons or groups of natural persons 
 whom the law endows with a personality in addition to that 
 which they possess by nature, in order that they may per- 
 form certain acts or enjoy certain privileges which to merely 
 natural persons might be impossible. These classes of per- 
 sons differ in many respects from one another, as their dis- 
 cussion in the ensuing chapters will disclose. 
 
 Read Markby, §§ 131, 136-144 ; Amos, Ch. vi, pp. 78-85; Aus- 
 tin, Lect. xii, pp. 347-354; Summa S. Th. Aquiu., 
 Pars Prima, Quest, xxix, Art. i ; Summa Ph. Zigliara, 
 O. 29. 
 (a) 22 R. 529.
 
 18 AMERICAN JURISPRUDENCE. § 17 
 
 CHAPTER II. 
 
 OF NATURAL PERSONS. 
 
 SECTION I. 
 
 OF THE EXISTENCE, IDENTITY, AND NAMES OF NATURAL 
 PERSONS. 
 
 § 17. Of the Legal Existence of Natural Persons. 
 
 A natural person is a living human being of whatever age, 
 sex, race, or condition. The actual existence of a human 
 being begins with his conception and continues till the 
 'moment of his physical death. On account of the difficulty 
 of ascertaining the date of conception the law regards the 
 personal existence of a child as commencing at the instant of 
 quickening, or when the movements of the child in her womb 
 are first felt by the mother, which usually occurs about four 
 and a half months after conception. From the moment of 
 conception, however, if eventually born alive, the child is 
 treated as having been alive for many beneficial purposes, 
 and while still in the womb of its mother it has civil rights 
 which are entitled to protection ; a guardian may be appointed 
 for it; or it may inherit land or take it under a will. (a) If, 
 however, it perish before birth, this antenatal recognition by 
 the law is withdrawn and the existence of the child, even 
 during that temporary period, is legally ignored. Moreover, 
 until full born, a child is not the subject of a felonious homi- 
 cide, nor the person causing its death guilty of murder. 
 
 Read 1 Bl. Com., pp. 129, 130 ; Markby, §§ 131-134; Holland, 
 Ch. viii, pp. 81-86. 
 (a) 20 D. 598 ; 43 D. 472, note ; 51 D. 248.
 
 §§ 18, 19 NATURAL PERSONS. 19 
 
 § 18. Of the Legal Death of Natural Persona. 
 
 The death of a natural person is the extinction of his phy- 
 sical life. In all ordinary cases this is a fact concerning the 
 date of whose occurrence there can be no question. Where 
 there is no proof obtainable as to the fact or date of death, 
 the law presumes that the person reached the ordinary limit 
 of human life, (a) The absence of a person from his customary 
 home for more than seven years, coupled with the failure of 
 any tidings concerning him to reach his relations or neigh- 
 bors, is prima facie evidence of his death in cases where the 
 rights and interests of other parties are alone involved, (b) 
 Nothing but his actual death, however, can divest him of his 
 own rights, and whatever may have taken place in reference to 
 these, on the false assumption of 'his death, will be invalid, 
 and he can assert and enjoy them as if his continued existence 
 never had been doubted, (c) The civil or imputed death of a 
 still living person, known to the earlier stages of the Eng- 
 lish law, has never been recognized in the United States. 
 
 Read 1 Bl. Com., p. 132; Markby, § 135. 
 (a) 5 D. 727 ; 92 D. 698, note. 
 (6) 97 U. S. 628; 8 D. 658; 22 D. 370; 91 D. 523, 
 
 note; 96 D. 136. 
 (c) 47 R. 458, note; 30 R. 746, note; 73 D. 122. 
 
 § 19. Of the Legal Identity and Names of Natural Persons. 
 
 The law knows a natural person, not by his face or figure, 
 but by his name. Every person has and must have a name. 
 It may be given to him by other persons, or he may adopt it 
 for himself, or the law may, as it always will if he has none 
 or it is unknown to the law, bestow upon him one of its own 
 selection. (") He can do no legal act, such as making a deed 
 or will or contract, without using his name or its equivalent 
 description, nor can he be sued for a private wrong nor pros- 
 ecuted for a crime except under his actual name or a name 
 conferred upon him for the occasion which will become his 
 true name for all the purposes of the suit or prosecution un- 
 less he objects to it and discloses his own. Identity of name
 
 20 AMERICAN JURISPRUDENCE. §§ 20, 21 
 
 is also identity of person, and from the former identity the 
 law presumes the latter until the contrary is proved, (p) 
 
 Read (a) 84 D. 51 ; 100 D. 53. 
 (6) 15 D. 468. 
 
 § 20. Of Identity of Names: Idem Sonans. 
 
 Identity of names resides in the sound not in the letter. 
 Names are primarily intended to be, and for the most part 
 are spoken; their expression in writing is merely incidental 
 and comparatively infrequent. Names which make the same 
 impression on the ear — idem sonans — are the same in law, 
 however they may vary in spelling or in the written or printed 
 characters of which they are composed. A person may change 
 his name ad libitum in its literal form provided he does not 
 alter its sound. If in his native language it requires one 
 group of letters to communicate the audible impression 
 through the eye to the mind of a reader, and in a foreign 
 language a quite different group is necessary for the same pur- 
 pose, the expression of his name in the foreign language de- 
 mands the use of the latter group of letters, not the former. 
 Names are the same in sound when they are sufficiently alike 
 to lead the ordinary hearer to think they are the same. 
 Variations in the sounds of letters and in the accentuation of 
 syllables are common to all spoken languages, and within the 
 range of these the sounds of words may vary without mislead- 
 ing any intelligent listener. The same limit, difficult in- 
 deed sometimes in application, measures the identity of 
 personal names. («) 
 
 Read (a) 13 D. 232, note; 39 D. 457; 27 St. 783, note; 163 
 U. S. 452. 
 
 § 21. Of Christian Names, Surnames, and Descriptive Names. 
 The name of a person consists of his Christian name and 
 his surname. The law recognizes but one Christian name 
 and takes no notice of middle names or letters, nor of pre- 
 fixes or suffixes, such as titles of office or honor, nor of words 
 used by the family and friends of a person to distinguish him
 
 §§ 22, 23 STATUS, NORMAL AN T D ABNORMAL. 21 
 
 from others of the same name. In legal documents these 
 adjuncts to the name are sometimes inserted, for they do not 
 impair its identity and may serve a useful purpose where it 
 might otherwise be doubtful which of two persons of the same 
 name was intended. Though no part of the name, they belong 
 to the class of expressions known as words of description, 
 whose employment is always legitimate to prevent ambiguity.. 
 A mere letter of the alphabet cannot be a Christian name or- 
 a surname, unless its sound is that of a word capable of being- 
 used as a name, (a) 
 
 Read (a) 43 D. 597 ; 16 D. 163 ; 27 D. 532 ; 147 U. S. 47. 
 
 § 22. Of the Voluntary Adoption or Change of Personal Names. 
 As a person may adopt a name where he has none, so he may 
 change his name at his pleasure. It is, however, one thing 
 for him to select and use a new name in speaking of himself, 
 and quite a different thing to compel other persons and the 
 public to recognize and designate him by his new name. If 
 they respect his choice and call him by it until his old name 
 passes out of use and the new one effectually supplants it, 
 then it becomes his name as fully as if he had never had 
 another. If they refuse to recognize it he may have recourse 
 to the legislature of the State, or under the statutes to the 
 courts, whose confirmation of his choice makes its use oblig- 
 atory upon all men. (a) 
 
 Read (a) 21 R. 179, note. 
 
 SECTION II. 
 
 OF STATUS. 
 
 Article I. 
 i 
 
 Of Status in General. 
 
 § 23. Of the Nature of Status. 
 
 Every natural person also has a status. Status is the con- 
 dition of the subject as the sovereign contemplates it when
 
 22 AMERICAN JURISPRUDENCE. § 24 
 
 he prescribes the law, and in view of which he defines the 
 rules by which the subject is to be governed. It is often 
 said that all persons are equal before the law, but this does 
 not mean that all have the same rights or are under the same 
 obligations. Persons are equal before the law when all who 
 have the same rights are equally protected in their enjoyment, 
 and when all who are under the same obligations are equally 
 compelled to fulfil them, (a) Far in fact is it from true that 
 the law recognizes in all citizens the same rights or imposes 
 upon all the same duties. On the contrary, the people of every 
 State are divided into many classes, each of which is differ- 
 ently regarded by the law, each exempt from legal rules to 
 which the others are subject, each subject to legal rules from 
 which the others are exempt. These classes are formed 
 sometimes by nature, sometimes by relations into which per- 
 sons voluntarily enter, sometimes by the fiat of the law itself. 
 The legal character of each class is its status, and this status 
 is shared by every member of the class and becomes the meas- 
 ure of his legal rights and duties. 
 
 Read Holland, Ch ix, pp. 118-128; Markby, §§ 168-180, 300; 
 Morey, pp. 229-238; Austin, Lect. xl, pp. 687- 
 690, Lect. xli-xliii, pp. 697-734. 
 (a) 170 U. S. 283 (293). 
 
 § 24. Of Normal and Abnormal Status. 
 
 Status is either normal or abnormal. Normal status is the 
 legal character of the great body of citizens for whom the 
 general laws are made and to whom in their full scope and 
 meaning they are applied. Abnormal status is the legal 
 character of those peculiar classes who for one reason or an- 
 other are regarded as improper subjects for the application 
 of the general laws, and are, therefore, exempted to a greater 
 or less extent from their operation. Presumptively, the law 
 being made by persons and directed to persons, the persons 
 to whom it is directed are able to receive it; that is, they 
 have sufficient intelligence to comprehend it, sufficient will to 
 form the determination to obey it, and are free from any
 
 § 25 STATUS OF INFANTS. 23 
 
 external coercion which hinders them from its complete and 
 exact observance. But this presumption is not supported by 
 the facts. While the vast majority of persons answer this 
 description, multitudes do not, who on account of their want 
 of reason, or weakness of will, or subjection to legitimate 
 superiors, or other recognized limitation or disability, cannot 
 and are not expected to observe the laws in the same way and 
 to the same extent as ordinary citizens. Normal status is 
 then the status of persons of mature age, of sound mind, and 
 free from external coercion. The status of all other persons 
 is abnormal. Concerning persons of normal status nothing 
 further need be said. All general laws are made for them. 
 In enacting statutes, rendering decisions, or discussing prin- 
 ciples and rules, legislators, judges, and law writers have only 
 them in view unless they expressly include persons whose 
 status is abnormal; and, therefore, every legal proposition, 
 wherever found, may be assumed to be an exposition of the 
 rights and duties of persons of normal status alone until the 
 contrary appears. But persons of abnormal status require 
 further description. Their exceptional legal characters, and 
 the diverse variations and departures from the general law 
 which these necessitate, form an important part of the whole 
 body of our laws. The principal classes of these persons are : 
 (1) Infants; (2) Insane Persons; (3) Married Women; (4) 
 Persons under Duress; (5) Public Officers; (6) Aliens and 
 other persons who are not citizens; the peculiar rules belong- 
 ing to each of which will next be considered. 
 Read Holland, Ch. xiv, pp. 297, 308-313. 
 
 Article II. 
 Of the Status of Infants. 
 
 § 25. Of Infancy and its Inherent Disabilities. 
 
 An infant is a person under adult age. The age at which 
 a person becomes an adult is fixed by law, and in this coun- 
 try, in the absence of :i statute prescribing some other age, 
 is twenty-one years. The precise moment at which he
 
 24 AMERICAN JURISPRUDENCE. § 26 
 
 ceases to be an infant is at midnight preceding the day before 
 his twenty-first birthday, since on that day he completes 
 the first twenty-one years of his life, and under the rule that 
 the law knows no fractions of a day it imputes every occur- 
 rence of the day to its first and every succeeding moment, (a) 
 During this period of his infancy no act, except that of the 
 law, can change his status. Neither the marriage of an in- 
 fant, whether male or female, nor his formal emancipation by 
 his father from parental control, nor his own claim to be an 
 adult, nor his neglect to assert his privileges as an infant, can 
 relieve him from the disabilities nor deprive him of the rights 
 which the law attaches to his condition, (b) The character 
 and extent of these rights and disabilities are determined by 
 the law of the State in which he was born or in which he has 
 his legal residence or domicil, and are variable by the legis- 
 lature at its pleasure, (c) They are wholly personal to himself 
 and do not avail either for or against other persons who may 
 be related to or connected with him, except so far as the in- 
 terests in property which they acquire through him are af- 
 fected by the peculiar rules which govern his transactions, (d) 
 All persons dealing with an infant are chargeable with a 
 knowledge of his status and of all its legal consequences, and 
 in ignorance of them act at their own peril, (e) 
 
 Read 1 Bl. Com., pp. 463, 464; Walker, Lect. xv, Lect. xvi, 
 pp. 275-277; 2 Kent, .Lect. xxxi, p. 233; Markby, 
 §§ 755-757. 
 
 (a) 3 Harr. (Del.) 557. 
 
 (6) 76 D. 409 ; 88 D. 630; 102 U. S. 300 (313); 51 R. 
 676 ; 37 R. 412. 
 
 (c) 17 D. 179. 
 
 (d) 13 D. 161. 
 
 (e) 22 D. 652. 
 
 § 26. Of the Control of an Infant over his Person and Prop- 
 erty. 
 
 The status of an infant varies from the normal status of the 
 ordinary citizen in the five following particulars : (1) Control 
 over his own person and property ; (2) Power to bind himself
 
 § 26 STATUS OF INFANTS. 25 
 
 by contracts; (3) Liability for torts, or injuries to the per 
 sons and property of others; (4) Responsibility for crime; 
 (5) Subjection to the decisions of the courts. The custody 
 and control over the person and property of an infant vest 
 primarily in the State. According to the modern idea of 
 political institutions the State is the true parens patriae, the 
 father and guardian of all its people, especially of those who 
 for any cause are unable to take proper care of themselves; 
 and this paternal supervision it exercises both through the 
 laws which it frames and through its duly appointed officers 
 and tribunals, but principally through the class of courts 
 called Courts of Equity, which have full jurisdiction over in- 
 fants and can place them and their estates under such control 
 as it deems expedient. («) Unless the law through some of 
 these agencies interferes, however, authority over the persons 
 of legitimate children resides in their father, (b) and in the 
 event of the death of the father the same authority devolves 
 upon the mother, (c) or some legally designated guardian, (d) 
 This authority the parent cannot transfer to any other person 
 except by binding the infant, with his consent, to some third 
 party as an apprentice, thus substituting the master for himself 
 in the protection and guidance of the child ; (e) or by procuring 
 its adoption in the manner provided by the local statutes, and 
 thereby transferring to the adopting parent the powers which 
 previously vested in himself. (/) Over the property of their 
 minor children parents, as such, have no control, (rj) but its 
 management is entrusted to guardians or trustees appointed by 
 the will of the donor of the property or by a competent court, (h) 
 This privation of self-control of the infant, being intended 
 wholly for his benefit, is not without its limitations. An in- 
 fant who has no parent or guardian, or whose parents or guar- 
 dians neglect their duties, may do any act which circumstances 
 render essential to his welfare. In obedience to the instincts 
 of their nature, infants of marriageable age — twelve years for 
 females, fourteen years for males, unless otherwise fixed by 
 statute — may marry, and if thry have offspring, may provide 
 in any necessary manner for their protection and support, (i) 
 In fulfilment of his duty to the State an infant may enlist in
 
 26 AMERICAN JURISPRUDENCE. § 27 
 
 the army or navy ; (j) and in order to satisfy his inclinations 
 of affection or charity he is permitted, by the statutes of some 
 States, to make a will and distribute among the objects of his 
 bounty his real as well as his personal property. Illegiti- 
 mate children are, in the eye of the law, related only to their 
 mothers, to whose custody they are entrusted by the State 
 subject to the same control by courts of equity, (/c) 
 
 Read 1 Bl. Cora., pp. -146-45.9, 461-463 ; 2 Kent, Lect. xxix, 
 pp. 205, 206, 208-215. 
 (a) 44 D. 708. 
 
 (6) 35 D. 653 (663-668) ; 53 D. 301 ; 1 St. 307; 6 St. 653. 
 (c) 6 St. 676. 
 
 (rf) 29 D. 707, note ; 77 D. 534. 
 
 (e) 45 D. 399 ; 82 D. 223 ; 2 St. 177, note ; 3 St. 115. 
 (/) 14 St. 500 (506-508) ; 39 St. 196, note. 
 (J) 71 D. 105. 
 (h) 97 D. 449. 
 (0 66 D. 515; 71 D. 555. 
 O') 137 U. S. 157. 
 (*-) 56 D. 206, note ; 56 D. 257, note; 37 St. 118. 
 
 § 27. Of the Power of an Infant to make a Contract. 
 
 An infant cannot make a binding contract except for nec- 
 essaries, nor even for these if they are already provided, or 
 would on his request be provided, by his parents or guar- 
 dians, (a) Necessaries are such things as food, clothing, shel- 
 ter, education, medical attendance, and other matters without 
 which the infant would suffer physical or mental detriment or 
 be deprived of some advantage which his station in life or the 
 condition of his property requires that he should be permitted 
 to enjoy. Here, again, the law is strenuous to protect the 
 interests of the infant, not to prevent him from receiving 
 benefits; and judges what is necessary for him in each in- 
 stance by its effect upon his personal welfare, (b) A binding 
 contract is one whose performance will be compelled by law, 
 or whose breach subjects the party in fault to the payment of 
 damages to the injured party. Not every seeming contract is 
 of this character. Parties may go through the form of mak-
 
 § 27 STATUS OF INFANTS. 27 
 
 ing a contract, and yet the contract may, fur some reason, be 
 absolutely void and in every respect as if it bad not been 
 made. Or parties may make a contract by which one of the 
 parties will be bound or not as he chooses, while the other 
 party will be bound if the former chooses to be, but not other- 
 wise. Such a contract is called a ''voidable contract." It is 
 not a void contract, because it has a real existence as a con- 
 tract and is capable of being made binding ab initio by a 
 subsequent act of ratification. Nor is it a binding contract, 
 because one of the parties at least is free to repudiate it and 
 so reduce it to complete non-existence. Contracts of an infant 
 which are not for necessaries are, unless clearly injurious to 
 him, voidable contracts, (r) The infant may ratify them after 
 he becomes of age, and so make them binding on the other 
 party as well as himself; or he may repudiate them and so 
 destroy them both as to himself and to the other party, (d) 
 Whether in any given case he must by some overt act repu- 
 diate in order to destroy, or ratify in order to confirm, depends 
 on the condition of the subject-matter of the contract at the 
 time when the question arises. If the contract is still exec- 
 utory, — that is, if neither party has done anything in pursu- 
 ance of it, — it is prima fade invalid as to the infant and needs 
 his ratification to make it good, (e) If the other party has 
 performed his part, the contract isprima facie valid, against 
 the infant also and he must disaffirm it in order to escape its 
 obligations. (/) If both parties to a voidable contract are in- 
 fants, neither can so ratify the contract as to bind the other, 
 but either may disaffirm it and render it completely void. 
 
 Read 1 111. Com., pp. 465, 466; 2 Kent, Lect. xxxi, pp. 234- 
 
 239. 
 (a) 75 D. 445 ; 15 D. 612; 67 D. 258. 
 
 (6) 42 I). 537; 40 D. 542: 20 R. 160; 34 II 434; 34 R. 
 
 449. 
 (c) 23 I). 526, note; 26 D. 251 ; 25 St. 708. 
 (,/) 17 1). 735; 10 D. 709; 7 1). 134. 
 (e) 21 I). 589. 
 (/) 57 1). 349 (350).
 
 28 AMERICAN JURISPRUDENCE. § 28 
 
 § 28. Of the Power of an Infant to make a Contract, con- 
 tinued. 
 
 Applying these distinctions to the apparent contracts of 
 infants the law reaches the following results. Where an 
 infant makes a contract for necessaries, which he cannot 
 obtain through his parent or guardian, he is bound by it and 
 must pay the stipulated or customary price, (a) Co-operating 
 with his parent or guardian he may bind himself out as an 
 apprentice to receive from his master instruction and support 
 in consideration of his obedience and services, (b) If he agrees 
 with an adult employer to work for wages he may do the 
 work or not as he pleases, but if he offers to do it the em- 
 ployer must accept it and recompense him according to the 
 terms of his contract, (c) Should he enter into partnership 
 with an adult, the adult cannot retire from the firm but the 
 infant is not obliged to continue in it any longer than he 
 wishes; as long as he does remain he is entitled to his share 
 of the profits and yet does not become individually responsi- 
 ble to its creditors for the partnership debts, (d) He may act 
 as the agent, attorney, or servant of others, binding them by 
 his acts and receiving compensation for his labor, but he can- 
 not appoint a servant, agent, or attorney for himself except as 
 a means for obtaining those necessaries for which the law 
 allows him to contract, (e) When he buys or sells property 
 he may subsequently ratify or revoke the sale. If the prop- 
 erty is personal property he may revoke within a reasonable 
 time even during his minority, but he cannot ratify the pur- 
 chase or the sale of any property, nor revoke that of real 
 property, until after he becomes of age. (/) The ratification 
 may be made by acts or words, or by mere failure to act. If 
 he continues to enjoy the fruits of a transaction after the law 
 allows him to repudiate it, his acquiescence is regarded as a 
 confirmation. Conversely, an act inconsistent with the 
 validity of the former contract, such as the conveyance of the 
 sold property to another person, or any assumption of domin- 
 ion over it, or the return of the purchased articles to the 
 seller with a demand for the repayment of the price, amounts 
 to a revocation. But as a contract of sale is always per-
 
 § 29 STATUS OF INFANTS. 29 
 
 formed at least on one side by the delivery of the property 
 sold, the presumption is in favor of the contract and the act of 
 revocation must be prompt and unequivocal, (g) Where it is 
 possible a revocation must be accompanied by the restoration 
 to the other party of the property purchased or the price 
 received, but if the infant party is unable to do this he may 
 nevertheless revoke the sale although the other party suffers 
 serious injury, (k) For those who deal with infants are con- 
 sidered as accepting in advauce all the losses which may fall 
 upon them through the exercise by the infant of his legal 
 rights. The same power to revoke the contracts of an infant, 
 in case he dies in infancy, vests in his heirs and representa- 
 tives to whom the property, if unaffected by the contract, 
 would descend, and they receive it, if they so elect, free from 
 the obligations which his unratified agreements seem to im- 
 pose upon it. (i) 
 
 Read 2 Kent, Lect. xxxi, pp. 239, 240, 242. 
 
 (a) 23 St. 780. 
 
 (b) 34 D. 537. 
 
 (c) 23 D. 651 ; 14 R. 580; 32 R. 152. 
 
 (d) 7 D. 229; 1 St. 379. 
 0) 10 D. 747; 65 U. 756. 
 (/) 65 D. 194. 
 
 (g) 10 Pet. 58; 9 Wall. 617 ; 102 U. S. 300; 167 U. S. 
 
 688; 18 St. 569, note. 
 (h) 62 D. 732, note ; 46 R. 314. 
 (0 19 D. 71. 
 
 § 29. Of the Liability of an Infant for his Torts. 
 
 An infant is liable for the injuries he inflicts upon the per- 
 sons and property of others, though not in all cases precisely 
 to the same extent as an adult. To refrain from injuries of 
 this kind requires but little exercise of the intellect and will, 
 and the law deems it safer to demand this exercise of infants 
 than to subject the rest of the community to the ravages of 
 dangerous and irresponsible human beings. But in estimat- 
 ing their liability attention is paid to their immaturity and
 
 30 AMERICAN JURISPRUDENCE. § 3C* 
 
 inexperience. Where the element of intention enters into a 
 wrong as one of its integral parts, as in the case of fraud, or 
 where equivocal acts must be interpreted, the mental opera- 
 tions of the infant are not judged by the same standard as 
 those of the adult. With exceptions such as these there is, 
 however, no difference in their responsibility. For tres- 
 passes to land, for assaults, libels and slanders, for injuries 
 to or the misappropriation of personal property, they are lia- 
 ble in damages although the wrongful act was perpetrated at 
 the instigation and under the direction of an adult, (a) But 
 where a wrongful act or omission is so related to a voidable 
 contract that to hold the infant liable for the wrong would 
 be an indirect enforcement of the contract, the protection 
 which the law affords him against the contract extends to 
 the wrong also, and he can be sued neither upon the one 
 nor for the other, (b) 
 
 Read 2 Kent, Lect. xxxi, p. 241. 
 
 (a) 84 D. 741 ; 33 D. 177, note ; 17 D. 756 ; 4 R. 290; 50 
 
 R. 381, note. 
 
 (b) 58 R. 53 ; 56 D. 85. 
 
 § 30. Of the Responsibility of an Infant for Crime. 
 
 An infant under seven is incapable of crime. This is an 
 arbitrary rule of law, variable at the pleasure of the State, 
 but adopted in order to escape the necessity of ascertaining 
 in every individual case whether the accused infant has 
 reached that degree of mental and moral development which 
 renders him justly responsible for his conduct. Every crime 
 includes a criminal intent; that is, an intellectual apprehen- 
 sion of the nature and unlawfulness of the criminal act and a 
 voluntary assent of the will to its performance; and this re- 
 quires a certain amount of knowledge, reasoning power, and 
 self-control. The investigation of this question, in reference 
 to infants of tender years who may happen to commit unlaw- 
 ful acts, would not only be exceedingly difficult but in most 
 instances would lead to very unreliable results: and the law.*
 
 § 30 STATUS OF INFANTS. 31 
 
 following the common opinion of mankind which fixes the 
 "age of reason," or the date when moral responsibility com- 
 mences, at seven years, assumes that prior to that time the 
 infant could not have a criminal intent and therefore could 
 not be guilty of a crime. Infants over fourteen years of age, 
 unless insane or otherwise relieved from responsibility, are 
 capable of crime. At that age they have attained physical 
 and mental maturity, are able to marry and become heads of 
 families, and properly stand before the criminal law on the 
 same footing as adults. Between the ages of seven and four- 
 teen the law neither asserts nor denies capacity. Many chil- 
 dren develop so slowly that even at fourteen they can scarcely 
 entertain a criminal intent; others so rapidly that they pos- 
 sess knowledge and conscience and self-control at the age of 
 seven. Within this debatable period the law, therefore, 
 requires that every case shall be examined by itself as best 
 it may, presuming always that capacity does not exist unless 
 its existence is clearly proved, (a). Another question, similar 
 enough to this to be sometimes confounded with it but in 
 reality quite different, arises in reference to the capacity of 
 infants to commit certain peculiar crimes. There are some 
 crimes in which the external act derives its unlawful charac- 
 ter from the intent, or purpose, or design with which it is 
 committed. The sending of poison to another, for example, 
 is not of itself a crime, but if sent with the design that the re- 
 ceiver shall take it and die it is an attempt to kill. The sign- 
 ing of another's name to a promissory note for amusement is 
 not contrary to law, but if done with the intent to defraud any- 
 body it is the crime of forgery. This kind of intent, which 
 is evidently very different from the criminal intent above 
 described as the test of capacity for any crime whatever, is 
 called a "specific intent," is present in comparatively few 
 crimes, and cannot exist unless the person performing the 
 act knows what might possibly be accomplished by it, and 
 wills that a particular result should follow it. Adults as well 
 as infants may thus perform acts which, if coupled with the 
 specific intent to produce certain foreseen consequences by 
 means of those acts, would be crimes, but which, because
 
 32 AMERICAN JURISPRUDENCE. § 31 
 
 they do not know that these consequences may attend the acts, 
 or because they do not design that such consequences shall 
 attend them, are not offences against the law. This question 
 of specific intent, with its elements, — knowledge and purpose, 
 — is always open to inquiry in every case where a crime of 
 which specific intent is an ingredient is charged, and its 
 existence must be clearly proven even where the accused is 
 of full age aud mental capacity. And since, the younger in- 
 fants are, the less knowledge and the less definite purpose 
 to achieve injurious results they probably possess, the law 
 presumes against the presence of a specific intent in their 
 minds the more strongly in proportion to their youth, and re- 
 quires the more positive and convincing evidence of its 
 existence, (b) 
 
 Read 1 Bl. Com., pp. 464, 465; 4 Bl. Com., pp. 22-24. 
 
 (a) 70 D. 494, note ; 7 D. 592 ; 4 St. 207 ; 45 D. 536. 
 
 (b) 5 St. 905. 
 
 § 31. Of the Subjection of Infants to the Decisions of the 
 Courts. 
 
 According to the general laws which affect persons of nor- 
 mal status, an action for an injury may be brought and 
 pressed to judgment as soon as the injurious act is committed; 
 either party is able to appear in court in person or by attor- 
 ney and prosecute or defend the suit; and both parties are 
 bound irrevocably by the final judgment. The status of an 
 -infant is governed in these respects by somewhat different 
 rules. An infant cannot institute a legal proceeding by him- 
 self alone, but must sue by his guardian if he has one, and if 
 not by his "prochein ami" Or "next friend," who may be his 
 father or any other person sufficiently interested in him to 
 undergo the trouble of the lawsuit and become responsible 
 for the taxable costs, (a) When an infant is sued he cannot 
 appear and defend alone, but only by his guardian, and if he 
 has no guardian a guardian ad litem must be appointed for 
 him by the court. The particular powers and obligations of
 
 § 31 STATUS OF INFANTS. 33 
 
 a guardian ad litem are fixed by the law of the State in which 
 he is appointed, but it is his general duty to protect the rights 
 of the infant in the litigation. In selecting such a guardian 
 the court is bound to exercise due care. The infant must 
 have been legally summoned into or be present in the court, 
 the concurrence of his parents in the appointment must be 
 obtained if possible, and interference of the adverse party 
 or his counsel with the appointment must be effectually 
 excluded. In default of such a lawfully appointed guardian 
 no judgment rendered against an infant defendant can be 
 valid, and though it is voidable only and not void, and con- 
 sequently cannot be attacked in an independent proceeding, 
 it may be reversed on a writ of error brought either by the 
 immediate blood relations of the infant or by the infant him- 
 self after his majority. A judgment in favor of an infant 
 defendant against an adult plaintiff is valid in spite of irregu- 
 larities in, or the entire absence of, the appointment of a 
 guardian ad litem, (b) Again, in former times there were cer- 
 tain actions relating to real property, which even though 
 lawfully commenced could not be prosecuted to judgment 
 ag'ainst an infant, but the infant (called the parol or pleader) 
 could demur, or ask for a suspension of proceedings, and by 
 this parol demur postpone the farther consideration of the 
 case till after his majority. Substantially the same privilege 
 is his at present whenever the rendition of a judgment against 
 him would be the indirect enforcement of a contract which he 
 will have a right to disaffirm after he becomes of age. In 
 other cases the courts of equity, which have supreme juris- 
 diction over all the affairs of infants, may entertain such 
 actions and enforce such decrees with reference to his real 
 and personal property as his own interests and justice to other 
 parties may require, (c) Suits for or against an infant must 
 be brought in his own name notwithstanding his inability to 
 appear alone and prosecute or defend, and service of process 
 upon him in the mode designated by the law of the State is 
 sufficient though the mode be one which, as for instance by 
 publication in a newspaper, would in all probability be in- 
 effectual, (j/j Where his infancy would be a defence he can 
 
 8
 
 34 AMERICAN JLHISPEDDENCE. §32 
 
 always assert it and rely upon it. whatever may have been 
 his previous representations to the contrary, (e) 
 
 Read 1 Bl. Cum., p. 464. 
 
 O) ] D. 26; 21 D. 70; 30 1). 425; 19 D. 409. 
 (6) 74 D. 83; 23 St. 858; 8 Pet. 128 (144). 
 (c) 89 D 172 ; 74 I). 291. 
 (</) 103 U. S. 435 ; 157 U. S. 195 (198). 
 (e) 7 St. 418; 44 D. 283, note. 
 
 Article III. 
 Of the Status of Insane Persons. 
 
 § 32. Of Insanity in General. 
 
 Another class of persons whose status is abnormal embraces 
 those who are non compos mentis, or of unsound mind. Per- 
 sons of unsound mind were anciently divided by the law as 
 well as by common opinion into two groups : Idiots and 
 Lunatics. Idiots were those whose insanity was permanent; 
 Lunatics those who had lucid intervals. The former were 
 irresponsible for their acts, were subject to the physical con- 
 trol of relatives or public officers, and their property vested in 
 the sovereign, as their legal protector, during their lives. 
 The latter, during their lucid intervals, enjoyed the rights and 
 were under the obligations incident to a normal status, but 
 were at other times in most respects in the same legal condi- 
 tion as idiots. The subject of insanity was then but little 
 understood. Many mental disorders were regarded and 
 treated as voluntary eccentricities, and the presumption of 
 sanity, which then obtained and still obtains in reference to 
 every person, was sufficient to outweigh all evidence of acts 
 or words which did not demonstrate either that the person 
 had no available intellect and will, or was for the time being 
 wholly beyond their control, (a) With the advance of medical 
 science, however, the disorders of the mind have been perceived 
 to be of such great variety, and every variety of so many 
 different degrees, that it might almost be concluded that the
 
 § 33 STATUS OF INSANE PERSONS. 3o 
 
 really sane iiian is the exception rather than the rule. In 
 every degree of every one of these varieties the state of the 
 intellect and will departs more or less from that in which the 
 will and intellect of a person of normal status are supposed to 
 be, and in which they must be in order to make him a proper 
 subject for the provisions of the general law. This variety of 
 already known mental conditions, and the fact that science is 
 rapidly advancing in the discovery of others, renders the 
 whole subject an extremely difficult and uncertain one in its 
 bearings upon legal responsibility, and compels the investiga- 
 tion of each case by itself not only as to the variety and degree 
 of the mental aberration but as to the effect of that aberration 
 upon the particular contract, crime, or other act or relation 
 which may form the subject of the controversy. Therefore, 
 without attempting any detailed classification of mental 
 diseases, which at the best could be only tentative and open 
 to revision, a few distinctions helpful to the understanding of 
 existing rules of law may be briefly indicated. 
 
 Head 1 Bl. Com., pp. 302-306 ; Markby, §§ 723-733. 
 (a) 29 D. 33. 
 
 § 33. Of the Varieties and Degrees of Insanity. 
 
 And first, insanity may extend to both the intellect and the 
 will, or it may affect the intellect leaving the will free, or it 
 may affect the will while the intellect remains unclouded. 
 Insanity affecting the intellect, if of sufficient degree, whether 
 the will is disordered or not, is always recognized by the law 
 as changing the status of the person and as bringing him 
 under the special rules relating to the insane, (a) Insanity of 
 the will, called also "moral insanity" and "emotional in- 
 sanity," has sometimes been held by the courts to be impos- 
 sible ; sometimes, though admitted to be possible, it has been 
 repudiated as too difficult of proof to warrant its legal recogni- 
 tion as a release from responsibility, especially for crime ; but 
 is now more properly treated as a fact to be investigated like 
 the condition of the intellect by the best available method, 
 the responsibility of the person to be measured by what can
 
 36 AMERICAN JURISPRUDENCE. § 33 
 
 be ascertained concerning his actual power of self-control, (b) 
 Second, insanity of the intellect may consist in simple weak- 
 ness of the mind due to old age, bad habits, physical disease, 
 arrested development, or other causes, rendering the person 
 unable to perceive, or to apprehend, or to judge of things, as 
 correctly as sane persons ordinarily do; or it may consist in 
 the subjection of the intellect to delusions, to unreal and 
 imaginary conditions of things which are honestly accepted 
 by the intellect as true and thus govern the convictions and 
 conduct of the person. Third, these disorders of the intellect 
 or of the will may be either total or partial. Weakness of 
 the mind may extend to all its faculties, disabling the person 
 from perceiving, apprehending, or judging anything correctly ; 
 or it may be confined to one or more faculties, leaving the 
 others comparatively sound. For example, in senile de- 
 mentia, or that weakness of mind which frequently accom- 
 panies old age, all the mental faculties are impaired and 
 sometimes become wholly dormant; while in that class of 
 persons who are called " incapables " to distinguish them from 
 those more evidentty insane, their insanity manifests itself in 
 want of judgment rather than in the inefficiency of their per- 
 ceptive or apprehensive powers. Delusions also may pervert 
 the operations of the entire intellect or may control them to 
 but a very limited degree. An insane person, for instance, 
 who believes himself to be some other person or a being of 
 some other race than man, labors under a delusion which 
 changes his entire environment, as he contemplates it, and 
 consequently affects all the conclusions of his intellect and all 
 his actions. Another, whose, delusion consists in the erro- 
 neous conviction that his wife, or child, or parent is his 
 deadly enemy may be sane in thought and conduct as to every 
 other person and as to all the affairs of life in which the 
 parent, child, or wife is not concerned. The will may be so 
 weak by nature, or as the result of long disuse or of external 
 violent suppression in early childhood, that the person "has 
 no will of his own," no proper self-control, but is the mere 
 passive instrument of his own emotions or of the instigations 
 of others ; or, on the other hand, this want of self-control may
 
 § 34 STATUS OF INSANE PERSONS. 37 
 
 exist only in reference to one special impulse which the person 
 is unable to resist, as to steal articles of a particular character, 
 to set fire to certain kinds of buildings, to kill or mutilate 
 children or women in peculiar ways, — although as to all 
 other influences he is able to yield or to refrain as he deems 
 best. Fourth, insanity of the intellect or will may be per- 
 manent or temporary. Disorders which are due to causes 
 from which there is no escape or recovery, such as infirmity 
 of the mind arising from old age, or an inherent weakness of 
 the will, continue during life, though not always with uniform 
 intensity. The inability to resist a certain special class of 
 impulses is also generally constant and incurable. Delusions 
 are sometimes perpetual and sometimes transient; and tem- 
 porary loss of self-control under the stimulus of some extreme 
 emotion is even more frequent than a chronic weakness of 
 the will. These transient disorders often occur suddenly 
 without warning, enduring a few moments, days, or weeks, 
 as the case may be, and then as suddenly and unaccountably 
 disappear. 
 
 Read Taylor, Med. Jar. " Insanity." 
 
 (a) 17 D. 311. 
 
 (b) 83 D. 401 ; 11 II. 731 ; 15 Wall. 580 ; 14 St. 879 ; 16 
 
 St. 408. 
 
 § 34. Of the Presumption of Sanity: Burden of Proof: Evi- 
 dence of Insanity. 
 The foregoing general distinctions between the varieties 
 and degrees of insanity considered from a practical rather 
 than a scientific point of view, though by no moans exhaust- 
 ing the subject, will render the rules of law relating to insane 
 persons, and their application to particular states of fact, 
 more fully and easily intelligible. As every person is pre- 
 sumed to be of normal status and subject to the ordinar 
 rules of law until the contrary appears, so the question as to 
 alleged insane persons always is whether their aberrations of 
 mind or will are sufficient in character and degree to deprive 
 them of that intelligence and freedom which all persons of
 
 38 AMERICAN JURISPRUDENCE. § 34 
 
 normal status necessarily possess. («) This is a question of fact, 
 the burden of proof in reference to which rests on the party 
 who alleges the insanity, and he must support his allegation 
 by evidence of insane acts, words, or habits on the part of the 
 alleged insane person, not by the opinions of his family or 
 neighbors or even of medical attendants unless coupled with 
 such facts as show the opinions to be justifiable, (h) More- 
 over, the question of insanity as it arises in legal controversies 
 always has relation to some particular occasion or transaction, 
 such as the making of a will or contract, the commission of a 
 tort or crime, or the appointment or removal of a guardian ; 
 and it is immaterial whether before or after that transaction or 
 occasion the alleged insane person was sane or insane, except 
 so far as his previous or subsequent condition may tend to 
 show the state of his intellect or will at the date in question, (c) 
 Nor is the cause which produced the insanity of any con- 
 sequence provided the insanity actually exists. It is true 
 that temporary insanity immediately superinduced by volun- 
 tary drunkenness is not accepted as an excuse for crime, but 
 this is a rule of public safety, and here the criminal intent, 
 which in a sober criminal is manifested only in the criminal 
 act, expresses itself in the deliberate suspension of his direc- 
 tion and control over his own actions and the letting himself 
 loose upon the community as an irrational and unrestrained 
 implement of destruction equally responsible for the conse- 
 quences as would be the owner of a vicious animal who 
 should turn it out to prey upon the public. But this rule 
 obtains only in the case of crimes and does not apply to 
 private rights and obligations: and even crimes are over- 
 looked where their perpetrator is permanently insane, or has 
 become liable to repeated fits of insanity, as the indirect 
 result of long continued habits of intoxication, (d) 
 
 Read Markby, §§ 751-754 ; Walker, Lect. xvi, pp. 277-280. 
 (a) 27 St. 689. 
 (6) 6 D. 58; 10 D. 444. 
 (c) 21 D. 732; 71 D. 431. 
 {<!) 8 St. 886 ; 1 St. 595 ; 34 D. 340.
 
 § 35 STATUS OF INSANE PERSONS. 39 
 
 § 35. Of the Power of an Insane Person to make a Contract. 
 The peculiar rules of law governing the status of insane 
 persons relate to the following subjects: (1) The power of 
 an insane person to make a binding contract; (2) His power 
 to make a valid will; (3) His liability for his injuries to the 
 private rights of others; (4) His responsibility for crimes; 
 (5) His standing in the courts; (6) The subjection of his per- 
 son or property to the control of a guardian. As to each of 
 these subjects the practical distinctions between the varieties 
 and degrees of insanity must be borne in mind. And first, as 
 to the power of an insane person to make a binding contract. 
 With the exception of those insane persons who have been 
 expressly deprived of their contracting power by being placed 
 under a legal guardian, the law presumes that every insane 
 person had the capacity to make any contract which he went 
 through the outward form of making. («) There is no arbi- 
 trary rule in his case, as in that of infants, limiting his re- 
 sponsibility because he is in a certain general condition. 
 Similar as the status of insane persons is to that of infants in 
 many particulars, there is no true parallelism between them. 
 The infant because he is an infant comes under special ruli s 
 adapted to the condition of infancy and therefore equally ap- 
 plicable to every infant. But the special rules applied to 
 insane persons are not prescribed with a view to any general 
 condition of insanity in which all insane persons alike partici- 
 pate, although under the ancient ideas of insanity heretofore 
 mentioned some such community of condition may have been 
 incidentally recognized by the law. Hence the contract of an 
 insane person is not void or voidable simply because he is 
 insane, but only when his insanity, by reason of its character 
 and degree, so affected him in the making of the contract 
 that he could not have made it with that full intelligence and 
 freedom of self-control which the law requires in order to 
 make any contract valid. In reference to every apparent 
 contract of an insane person there are, therefore, two points 
 to be considered: (1) The nature of the contract ; and (2) The 
 variety and degree of the insanity. If the latter were such 
 that the former could not have been understood in all its details
 
 40 AMERICAN JURISPRUDENCE. § 35 
 
 and consequences and freely accepted, the contract is not 
 binding. If, on the contrary, in spite of his insanity the 
 insane person could have comprehended the terms and obli- 
 gations of the contract, and was not constrained to enter into 
 it, his responsibilities under it are the same as those of any 
 sane person would have been, (b) Thus the contract of an 
 insane person for necessaries for himself, his wife or children, 
 in pursuance of which the necessaries are delivered to and 
 consumed by him, is so far valid that he can be compelled to 
 pay for them the customary and reasonable price, since every 
 insane person who can go through the form of purchasing 
 necessaries may properly be chargeable with sufficient under- 
 standing of his bodily needs to render such a contract the con- 
 current act of his intelligence and will, (c) Contracts made by 
 an insane person whose insanity consists in a special delusion, 
 or an inability to resist particular impulses, are binding when 
 they have no connection with and could not have been influ- 
 enced by that impulse or delusion. Persons afflicted with an 
 extreme general weakness of the mind or will, or under some 
 delusion which covers the whole field of their experience, 
 usually have no contracting power, though even in such cases 
 its absence is not to be assumed without investigation. The 
 contract of an insane person, when not binding, is now re- 
 garded as voidable rather than void, and consequently valid 
 as against the sane party to it and capable of ratification or 
 disaffirmance by the insane party if he ever regains the use 
 of his faculties, (d) The extreme hardship of this doctrine to 
 the sane party, who might thus lie under the obligations of 
 the contract during the entire life of the insane party, although 
 it was apparent that his insanity was incurable and that he 
 never would be able to ratify and fulfil the contract upon his 
 part, is somewhat relieved by the further rule that the con- 
 tracts of insane persons when executed are valid if the sane 
 party entered into them in good faith, without knowledge 
 of or a sufficient reason to suspect the insanity of the insane 
 party, and where he cannot be reinstated in his former rights 
 and possession should the contract now be held invalid, (e) 
 The ancient doctrine that the contract of a hopelessly insane
 
 § 36 STATUS OF INSANE PERSONS. 41 
 
 person was void was the simpler and perhaps the better one, 
 leaving both parties free as if the contract never had been 
 made. 
 
 Read (a) 15 D. 354, note : 17 St. 686; 71 St. 418, note. 
 (ft) 118 U. S. 127; 60 D. 313; 83 D. 514. 
 (c) 55 D. 430 ; 45 D. 700. 
 (rf) 89 D. 705 ; 39 D. 744; 15 Wall. 9; 22 D. 372; 1 R. 
 
 309 ; 47 St. 463 ; 66 D. 414. 
 0) 92 D. 428 ; 97 D. 592. 
 
 § 36. Of the Power of an Insane Person to make a Valid 
 "Will. 
 The validity of the last will and testament of an insane per- 
 son is determined by the same method as that of his contract. 
 It is sometimes said that it requires less mental capacity to 
 make a will than to make a contract, but the truth of this 
 statement depends upon the comparative intricacy of the 
 contract and the will and the relations of their respective pro- 
 visions to the peculiar mental disorders of the maker. Some 
 wills require greater mental capacity than some contracts and 
 some contracts are more difficult to comprehend than some 
 wills, while both wills and contracts are equally liable to be 
 without or within the influence of their maker's idiosyn- 
 crasies. In order to make a valid will it is necessary that 
 the testator should be able to understand what property he 
 owns, to whom his property would descend if he made no 
 will, to whom in justice and in obedience to the dictates of 
 natural affection it ought to go at his death, and to whom it 
 will go under the provisions of the will as he has made it, 
 and that he should freely determine that it shall go to the 
 I ersons and in the manner expressed in the will. A simple 
 testament distributing property among immediate relatives 
 without trusts or other intricate legal limitations obviously 
 requires very little mental power or force of will compared 
 with one which turns the current of descent away from natural 
 heirs and vests the estate in strangers coupled with condi- 
 tions and obligations whose interpretation taxes the wisdom
 
 42 AMERICAN JURISPRUDENCE. § 37 
 
 and sagacity of the ablest lawyers. Here, therefore, as in 
 reference to contracts, every case must be judged by itself, 
 and if the testator at the time he made the will in question 
 had intelligence enough to know what he could do, what he 
 ought to do, and what he did do with his property, and really 
 intended to do with it what he has done, his will is valid 
 however weak his mind may otherwise have been, and under 
 whatever insane delusions and impulses, not affecting him in 
 the making of his will, he may have labored, (a) This de- 
 scription of the capacity requisite to make a valid will shows 
 that the will of an insane person is invalid when he is wholly 
 without mental powers or self-control, or when the nature of 
 its provisions is such that he could not have comprehended 
 it, or when it is made under the influence of some general 
 or Special delusion or in obedience to an impulse at once un- 
 reasonable and irresistible or under the pressure of external 
 conditions which perverted his judgment or exercised such 
 undue control over his testamentary act that it could not have 
 been entirely voluntary, (b) 
 
 Read (a) 17 D. 722; 50 D. 329 ; 51 D. 253 ; 14 R. 79 ; 36 R. 
 422; 8 R. 181 ; 6 R. 703; 84 D. 220 ; 21 D. 732; 
 63 St. 72, note. 
 (b) 16 D. 253; 19 I). 402. 
 
 § 37. Of the Liability of an Insane Person for his Torts. 
 
 An insane person is liable for the injuries which he commits 
 against the persons and property of others to the same extent 
 as if he were sane, except where such injuries involve a men- 
 tal operation or a purpose of which he is proved to be incap- 
 able. Notwithstanding his infirmities of mind and will it is 
 only just that other persons should be protected against or 
 compensated for the harmful consequences of his unlawful 
 acts; for his insanity is his misfortune not theirs, and if he 
 cannot control his conduct he has no legal right to be at large. 
 Infants are bound by equally stringent rules, and yet their 
 condition is natural and inevitable, and libert}^ is necessary 
 to their education and development, while insanity, if some-
 
 § 3* STATUS OF INSANE PERSONS. 43 
 
 times unavoidable, is at the least unnatural, and when com- 
 bined with freedom from restraint is dangerous alike to its 
 victim and to the community. Acts whose unlawfulness 
 depends Tii Min the intent or knowledge with which they are 
 performed, among which are deceits, conspiracies, and appro- 
 priations of property under false claims of ownership, entail 
 upon him no responsibility when such intent or knowledge 
 is beyond his powers, for in the absence of this knowledge or 
 intent the wrong itself is not committed even by a sane per- 
 son, and it is immaterial whether their absence is due to the 
 presence of opposite ideas and purposes or to simple inca- 
 pacity. The negligence of an insane person is judged by the 
 same standards as that of other persons, unless those dealing 
 with him and suffering through his negligence had notice of 
 his want of understanding or his lack of self-control, for 
 every person entering into relations with others is entitled 
 to assume that they are sane and to expect from them the 
 care and diligence which sane persons are required to exercise, 
 and unless in some way put upon his guard is not compelled 
 to investigate their mental condition before placing his 
 person or property within their power. But where either the 
 negligence or the wrongful act of an insane "person are so 
 connected with his contract as to constitute its violation and 
 the contract itself is one which he had not the capacity to 
 make, lie is not liable for the act or the neglect, (a) 
 Read (a) 42 St. 713. 
 
 § 38. Of the Responsibility of an Insane Person for Crime. 
 
 The responsibility of an insane person for his criminal 
 acts is determined by the same comparison between his actual 
 mental or volitional condition at the time the act was com- 
 mit ted and the intents and purposes which are essential to the 
 perpetration of the- crime. There is, as has beeo already ex- 
 plained, no crime without a criminal intent, a consent of the 
 will to the performance of a known unlawful act. This re- 
 quires that the criminal should have mind enough to be able 
 to understand the nature of the act and that it is unlawful
 
 44 AMERICAN JURISPRUDENCE. § 38 
 
 or morally wrong, and that he should have sufficient self- 
 control to be able to refrain from doing it. The law presumes 
 that all sane persons know the law and consequently know 
 when they commit unlawful acts, and intend to do whatever 
 they actually perform, and hence imputes the criminal intent 
 to every voluntary performer of the act who has capacity 
 enough to comprehend its nature as prohibited by law. But 
 where a criminal act is committed when the mind or will is so 
 weak that the act is not intelligent and voluntary, or when 
 the perpetrator is under the control of a general or special 
 delusion which so far perverts his apprehension or judgment 
 that he does not comprehend the nature and consequences of 
 the act or is convinced that it is right or necessary, or when 
 he is impelled to commit the act by an irresistible impulse 
 in spite of his knowledge and consciousness of wrong, the 
 act is not a crime, because the criminal intent without which 
 crime is impossible does not exist. (//) What has been said 
 concerning the temporary insanity arising from voluntary 
 drunkenness should be here repeated. If through indulgence 
 in strong drink or drugs a man has deprived himself of intel- 
 ligence and free will, he is none the less insane and unable to 
 understand and control his actions than if his insanity had 
 been congenital or resulted from disease, and if insanity itself 
 exempted its subjects from liability for crime the drunkard 
 could not be denied the benefit of the exemption. But it is 
 the law, not the individual or his . condition, which deter- 
 mines the nature of crimes and who shall suffer punishment 
 for them, and if the interests of society demanded that insane 
 persons or even infants should be held to the full measure of 
 responsibility attached to sane adults, the law could justly 
 require it. The law does not assert that persons insane 
 through drink are not insane, nor that they understand and 
 will the acts which they commit, but that having voluntarily 
 put themselves into this condition they have, in advance, 
 assumed all its consequences and must suffer the same pen- 
 alties as if their acts had been intelligently and purposely 
 committed; and this it does because society would otherwise 
 be without adequate protection against the dangers to which
 
 § 38 STATUS OF INSANE PERSONS. 45 
 
 the presence of multitudes of irresponsible drunkards would 
 subject it. But where the reason of the rule ceases the law 
 itself ceases, and when a drunkard through long self abuse 
 becomes actually and permanently insane — a case compara- 
 tively rare — he stands before the law precisely like any other 
 insane person, (b) In reference to the specific intent which 
 is in some crimes an essential part of the criminal act, the 
 question is always open, both as to voluntary drunkards and 
 all other persons, whether the external action or omission 
 was coupled with the particular intent or purpose which makes 
 the omission or the act a criminal act; and on this question 
 the mental capacity of the accused to entertain and act upon 
 the purpose or intent is the principal matter for investigation, 
 since if incapable of conceiving this particular design, or of 
 purposing to accomplish it by means of this particular ex- 
 ternal action, the required specific intent could not exist and 
 consequently the criminal act could not be committed, (c) In 
 criminal cases especially the general presumption of sanity 
 must be overcome bj' reliable and preponderating evidence. 
 It is the duty of the accused to offer testimony sufficient to 
 show that he was probably insane when the act was per- 
 formed, and the interests of society require that he should 
 escape punishment only when there is a reasonable doubt 
 whether he was mentally and morally capable of the crime, (d) 
 When acquitted on the ground of insanity he is by the laws 
 of some States, and ought to be by the laws of all, subjected 
 to such restraints as would effectually protect the community 
 against further repetitions of his irresponsible acts. An 
 insane person while insane, cannot be tried or punished, and 
 proceedings against him, though commenced, must be sus- 
 pended until his recovery, (e) 
 
 Read 4 Bl. Com., pp. 24-20. 
 
 (a) 97 1). 162, note; 99 D. 634; 36 D. 398, note; 41 D. 
 
 458; 83 D. 231 ; 31 11. 300; 60 R. 193, note. 
 (6) 40 R. 556, note; 72 D. 484; 37 St. 811; 20 R. 292, 
 
 43 R. 799. 
 (c) 45 D. 558; 36 R. 13; 26 St. 44. 
 00 69 I). 642: 80 D. 154; 160 U. S. 469. 
 (c) 47 1). 216.
 
 •16 AMERICAN JURISPRUDENCE. §§ 39, 40 
 
 § 39. Of the Standing of an Insane Person in the Courts. 
 
 An insane person, not under legal guardianship, may sue 
 and be sued like any other person in actions for private in- 
 juries, and will be bound by the judgment of the court if he 
 has appeared in the case and has had an opportunity to be 
 heard, (a) Where legal proceedings instituted by him neces- 
 sitate contracts, or where compliance with the orders of the 
 court would place him under contract obligations, the validity 
 of these must be determined by his capacity to enter into 
 them; and if he is unable to make them, and the litigation 
 cannot be carried on without them, it must cease, or a guar- 
 dian must be appointed for him by whom it may be conducted. 
 Where an insane person is a defendant, and manifestly in- 
 capable of protecting his own interests, the court will inter- 
 fere and provide him with a suitable attorney, (b) An insane 
 person may testify as a witness in a lucid interval, or when 
 he understands the obligation of an oath, can comprehend the 
 questions put to him and can state correctly what he has seen 
 and heard; and of these qualifications the court in every 
 instance is the judge, (c) 
 
 Read (a) 54 D. 614 ; 32 D. 68 ; 74 D. 503. 
 
 (b) 79 D. 67. 
 
 (c) 107 U. S. 519. 
 
 § 40. Of the Guardianship of Insane Persons. 
 
 An insane person is always regarded as the ward of the 
 State, which exercises supervision over him, when it deems 
 best, through courts of equity or statutory courts endowed 
 with equity powers, by whom a guardian is appointed for him 
 to take custody of and have control over his person or his prop- 
 erty or both, as the necessities of the case require. (a) Pre- 
 liminary to the exercise of this supervision the presumption 
 of sanity must be overcome by an investigation of his mental 
 condition. On the application of the insane person himself, 
 or of any one who may be interested in him, a commission of 
 lunacy issues from the court to certain individuals to ascer- 
 tain by evidence or otherwise the state of his intellect and
 
 § 40 STATUS OF INSANE PERSONS. 47 
 
 will and report the result of their researches to the court. 
 In some States, under their local practice, this examination 
 is conducted directly by the court. If the person is found to 
 be insane the court makes such a disposition of him and his 
 estate as his interests and those of society demand. He may 
 be committed to an asylum where he will be kept under re- 
 straint, or permitted to go at large under such oversight as the 
 guardian now appointed for him may be directed to give, (b) 
 His property may be taken out of his control and entrusted to 
 his guardian to manage for his benefit, or he may be allowed 
 to keep and use it subject to the prohibitions of his guardian. 
 He may be entirely deprived of all contracting power so that 
 his apparent contracts will be wholly void, or he may be per- 
 mitted to make contracts which become valid by the ratifica- 
 tion of his guardian, (c) In short, whatever restrictions the 
 court from time to time thinks necessary for his welfare may 
 be placed upon his liberty and modified or removed as his 
 capacity to take care of himself and his estate diminishes or 
 improves. This power to appoint guardians for insane per- 
 sons, which has for centuries been vested in equity courts, is 
 now commonly extended by statute to reach spendthrifts, 
 habitual drunkards, and all other species of " incapables," 
 who for this purpose are classed with the insane. While 
 under guardianship the personality of the insane person is 
 superseded by that of the guardian according to the scope of 
 the guardian's powers, and he can do nothing of himself within 
 the field allotted to his guardian. When the guardian takes 
 possession of the ward's estate he must support him from it 
 so far as may be possible and necessary, and after his death 
 or restoration to complete capacity must account to him or 
 his legal representatives for whatever balance may remain 
 unexpended in his hands. 
 
 Head (a) 15 St. 386; G St. 913; 44 St. 258; 46 D. 280; 77 D, 
 572. 
 
 (b) 1 K. 334. 
 
 (c) 68 D. 4G5 ; 22 D. 655.
 
 48 AMERICAN JURISPRUDENCE. § 41 
 
 Article IV. 
 Of the Status of Married Women. 
 
 § 41. Of the Legal Character and Validity of Marriage. 
 
 A third form of abnormal status is that of Femes Covert, or 
 Married Women. The marital relation, as regarded by the 
 law, is an institution based on public policy, established by 
 the laws of the State, and subject both as to its formation 
 and destruction to State control. It consists in the voluntary 
 union of a man and a woman for all the purposes embraced in 
 the legal conception of marriage. It is created by the consent 
 of the parties to be now and hereafter husband and wife (a) ; 
 but is dissoluble only by death or by the action of the State, 
 which can terminate the relation, with or without cause, at 
 its pleasure, (b) No ceremonies are necessary to its validity 
 unless expressly made so by statute (c), and if valid by the laws 
 of the State where it is created it is valid in all other States 
 except when contrary to their settled public policy or to their 
 standards of morality, (d) Marriage, in legal contemplation, 
 is therefore not a mere ecclesiastical ceremony entailing the 
 observance of religious duties, nor a mere contract the terms 
 of which the parties are competent to fix, nor a combination 
 of the two, but a true change of status after which the female 
 party at least occupies an entirely different position before 
 the law. (e) Variations in this status may be caused by the 
 legal separation of the parties or by their divorce a mensa et 
 thoro. By death or divorce a vinculo the status itself is de- 
 stroyed, and the normal status of both parties, or of the sur- 
 vivor, is restored. (/) 
 
 Read 1 Bl. Com., pp. 433-442 ; 2 Kent, Lect. xxvi, pp. 75-93; 
 Holland, Ch. xii. pp. 216, 217. 
 (a) 22 D. 563; 53 D. 164. 
 (ft) 20 D. 402 (407, 408) ; 48 St. 928. 
 
 (c) 2 St. 105. 
 
 (d) 10 St. 648. 
 
 (e) 125 U. S. 190 ; 58 D. 59 ; 85 D. 658. 
 (J) 65 D. 349, note.
 
 § 42 STATUS OF MARRIED WOMEN. 49 
 
 § 42 Of the Status of Married Women under our Ancient 
 Laws 
 
 Under the ancient rules of the common law the status of 
 married women departed more widely from a normal status 
 than that of any other class of persons. In fact, even her 
 personality itself was suspended and merged during the 
 coverture in that of her husband, with whom she became in 
 law one person and that person the husband, («) As a conse- 
 quence of this her husband acquired the control over all her 
 acts and might even by force compel her obedience, (b) She 
 was obliged to follow him in his various changes of abode, 
 and could not acquire a legal residence of her own unless de- 
 serted by him or for the purpose of seeking a divorce or al- 
 ready separated from him by the intervention of the-courts. (c) 
 Contracts subsisting between them at the time of the marriage 
 became null and void (d) ; no new legal contracts were possible 
 between them while the marital relation lasted except through 
 third persons as trustees; nor could the wife contract with 
 any other person unless abandoned by her husband and thus 
 restored to the legal capabilities of a feme sole, (e) All her 
 personal property which she had in her possession at the 
 date of the marriage instantly became the property of the 
 husband, and all her claims and rights of action against 
 others vested in him to be collected by him and applied to 
 his own use if he chose. (/) Her temporary interests in 
 lands, the rents and profits of her real estate (g), and all her 
 services and earnings while she was his wife (A), were also 
 his, and if they owned joint property the dominion over it 
 resided in him during his life or until the marriage relation 
 was legally dissolved. (i) Moreover, the merging of her per- 
 sonality in that of her husband delivered her from many of 
 the legal responsibilities of a person and imposed them upon 
 him. By the marriage he became liable for all her ante- 
 nuptial debts (J), for her adequate support according to her 
 station in life (k), for all her private injuries to the persons, 
 character and property of others (/), and for all the crimes 
 which she committed in his presence and by his command 
 except treason, robbery, and murder, (m) She had no stand- 
 
 4
 
 50 AMERICAN JURISPRUDENCE. § 43 
 
 ing in the courts apart from him, and could neither sue nor 
 be sued without making him a party except in her own ac- 
 tions against him for a separation or divorce, (n) Commu- 
 nications between them were considered sacred, and neither 
 could be compelled to divulge them even under the sanction 
 of an oath, (o) 
 
 Read 1 Bl. Cora., pp. 442,445; 2 Bl. Com., pp. 433-436; 
 2 Kent, Lect. xxviii, pp. 129-162, 179-187; 
 Walker, Lect. xiv. 
 
 (a) 56 D. 288. 
 
 (b) 86 D. 430, note; 98 D. 78. 
 
 (c) 76 D. 440 ; 21 How. 582 ; 23 D. 549. 
 (<!) 53 D. 236. 
 
 (e) 45 D. 171 ; 64 St. 854, note. 
 
 (/) 79 D. 73; 47 D. 120 ; 82 D. 144 ; 83 D. 351. 
 
 (y) 31 D. 257. 
 
 (A) 13 St. 847; 39 D. 623; 73 D. 323. 
 
 (/) 10 St. 94 ; 26 St. 475 ; 38 St. 430. 
 
 (J) 60 D. 258; 98 D. 587. 
 
 (*) 33 St. 917; 28 St. 362; 10 D. 458; 66 D. 137. 
 
 (0 37 St. 374. 
 
 (m) 6 D. 105, note; 8 R. 422; 94 D. 684. 
 
 (n) 15 D. 673 ; 66 D. 137 ; 47 R. 112. 
 
 (o) 29 St. 405. 
 
 § 43. Of the Status of Married 'Women under our Present 
 Laws. 
 
 ^n more recent times, however, these exemptions and disa- 
 bilities which once attached to the status of married women 
 cave been variously modified, both by the action of courts of 
 pquity and by legislative enactment. The principal spheres 
 of influence of courts of equity have been the separate estates 
 of married women, and beneficial contracts between them and 
 their husbands. Instances occasionally arose where property 
 became vested in a wife under express conditions which ex- 
 cluded her husband from any interest in it or control over it, 
 and as it then could have no owner or personal representa- 
 tive except the wife, the courts of equity took notice of her
 
 § 43 STATUS OF MARRIED WOMEN. 51 
 
 relation to it (as the courts of law could not do) and sustained 
 her claims and contracts in regard to it as if she were still 
 single and unmarried. («) Beneficial contracts between mar- 
 ried persons as to their separation when it became no longer 
 possible to live peaceably together (b), or as to transfers of 
 property from one to the other, though void at law, were also 
 recognized and enforced in equity as if made between parties 
 having no legal disabilities in reference to one another. (V) 
 The changes introduced by statute have been still more exten- 
 sive. Modern ideas as to the mental capacity of woman, as 
 to the character of the marital relation, and as to the true 
 interests of the parties to it — ideas largely resulting from 
 changes in economic conditions and the consequent ability of 
 woman to dispense with the support of man — have led to the 
 adoption of statutes which are inconsistent with the theory 
 that the personality of the wife is merged in that of the hus- 
 band, and which recognize in her a greater or less degree of 
 self-control and individual responsibility. But not in all 
 States under the jurisdiction of the common law have these 
 statutory modifications of the earlier rules been identical. In 
 some, they seem to tend toward the complete severance of the 
 wife's personality from that of the husband and the entire 
 emancipation of her property as well as her person from his 
 protection and authority. In others, the law has been changed 
 only in reference to such details of her rights and duties as 
 the conditions of modern society imperatively require. Thus 
 each State has its own system of laws governing married 
 women, and sometimes different systems applied to parties 
 married before or after certain dates, and sometimes different 
 systems under any one of which the parties may elect to live. 
 Resemblances between these systems indeed exist not only in 
 the ancient rules which they still retain, but in the provisions 
 which render married women responsible for their own torts 
 and crimes (d), or release their husbands from their ante- 
 nuptial debts, or make them the owners under certain limita- 
 tions of their real and personal property (e), or recognize in 
 them a measure of contracting power. </) Hut for an accu- 
 rate knowledge of any of these systems as applied to married
 
 52 AMERICAN JURISPRUDENCE. § 44 
 
 persons the student must resort to the Constitution, statutes 
 and decisions of the State in which they have their legal 
 residence or domicile, (y) 
 
 Read 2 Kent, Lect. xxviii. pp. 162-178. 
 
 (a) 5 R. 675; 78 D. 216, note; 99 D. 587, note. 
 
 (b) 90 D. 358. 
 
 (c) 11 D. 396; 57 D. 583; 4 R. 631; 9 R. 679; 32 D. 
 
 362 ; 9 St. 319 ; 88 D. 49 ; 101 U. S. 225; 111 U S. 
 117; 58 St. 490, note. 
 
 (d) 46 St. 122 ; 83 D. 772, note.. 
 
 (e) 76 D. 363, note ; 57 D. 330. 
 
 (/) 13 St. 273 ; 99 D. 587, note ; 57 St. 163, note. 
 (g) 33 D. 168. 
 
 Article V. 
 Of the Status of Persons under Coercion or Duress. 
 
 § 44. Of the Nature of Coercion and Duress. 
 
 The status of persons under coercion or duress is also 
 abnormal. One whose freedom of action is entirely destroyed 
 by external physical coercion is no longer a person. His 
 power of self-determination is lost though he may still pos- 
 sess a sound intellect and undiminished will. He has be- 
 come a mere passive instrument in the hands of others and 
 his apparent acts are theirs, not his. In such a situation a 
 person has no duties or responsibilities and is not amenable 
 to law. Coercion operates upon the body; duress, on the 
 other hand, operates upon the mind, (a) It consists in an 
 unlawful constraint of the will, produced by the conduct of 
 other persons, and impelling the party under duress to act as 
 he otherwise would not act. (b) It always involves wrong and 
 injustice toward the person constrained, and to the extent to 
 which he is influenced by the constraint it changes his ordi- 
 nary legal rights and obligations. Duress may be effected by 
 words, actions, or conditions. Threats (c), menaces, false im- 
 prisonment (d), bodily privation or torture, circumstances 
 naturally creating fear and terror, even the unlawful forcible
 
 § 45 STATUS OF PERSONS UNDER DURESS. 53 
 
 withholding of property (e), tend to this result, and in deter- 
 mining the degree to which they deprive their victim of his 
 freedom, his own vigor of mind and strength of will must 
 be considered. Conditions which in one person would excite 
 grave apprehensions of immediate danger will be met by an- 
 other with careless defiance, and the question therefore always 
 is a personal one and one relating to a particular occasion. (/) 
 An individual of weak mind, or of extreme youth or age, or 
 dependent upon the constraining parties for protection or 
 support, or under lawful subjection to their authority as to 
 his general conduct, is necessarily more easily controlled 
 than one in an entirely opposite condition; and in the case of 
 any person less constraint is needed to induce an act of little 
 consequence than one of greater importance or enormity. 
 Lawful constraint of one person by another is never duress 
 although its exercise may bring the subject-party into such 
 habitual fear of or dependence on the other that a slight un- 
 lawful usurpation of control may produce a duress far more 
 intense than if the previous relations had not subsisted. At 
 the same time, the law expects every one to assert such man- 
 hood as he has, and not to yield to influences which, in view 
 of his mental and moral state, he is evidently able to resist. 
 
 Read 1 Bl. Com., 130, 131 ; Holland, Ch. viii, p. 94; Ch. xii, 
 p. 239 Markby, §§ 254-256, 758-763. 
 
 (a) 5 D. 659. 
 
 (b) 49 D. 596. 
 
 (c) 82 D. 395. 
 
 (d) 26 D. 370, note; 4 D. 170; 29 St. 170. 
 (f) 45 I). 145, note. 
 
 (J) 24 St. 166. 
 
 § 45. Of the Liability of Persons under Duress on their Con- 
 tracts or for their Crimes. 
 The principal instances in which these rules concerning 
 duress are applied relate to contracts, to transfers of property, 
 and to crimes. A contract entered into by a person under the 
 fear of immediate death or serious injury to himself, his wife,
 
 £>4 . AMERICAN JURISPRUDENCE. § 45 
 
 his children or his property, produced by the unlawful con- 
 duct of the other parties to the contract, is voidable (a) ; and 
 though it can be ratified by its maker after he is released 
 from the duress, it cannot, until ratified, be enforced against 
 him either in the courts of law or courts of equity, (b) A 
 deed given under similar circumstances is likewise void- 
 able (c), and money extorted by such duress may be recovered 
 in a suit at law. Contracts between persons, one of whom oc- 
 cupies toward the other an artificial dependent relation, such 
 as that of a ward to his guardian or of a cestui que trust to his 
 trustee, are always open to the suspicion of duress, and if 
 duress is proved, and was sufficiently severe to compel the 
 person to act against his will, the contract is not binding 
 upon him. (d) A will made under duress is void; and where 
 a testator is infirm in mind or body, and dependent on the 
 services of his beneficiaries, a comparatively small degree of 
 influence on their part in their own favor constitutes duress 
 enough to make the will invalid, (e) In accepting duress as 
 an excuse for criminal acts the law rules the more stringently 
 in proportion to the enormity of the offence committed and its 
 natural effect upon the welfare of society. ISTo duress can ex- 
 cuse an act of treason unless the act was perpetrated under a 
 reasonable and well grounded fear of immediate death at the 
 hands of the enemy in case of refusal. (/) Duress excuses 
 voluntary homicide only when the unlawful conduct of the 
 victim produces in the slayer an honest conviction that his act 
 of homicide affords him the sole means of preventing the im- 
 pending death or serious mutilation of himself or members of 
 his family, or the felonious destruction of his property. (//) 
 Crimes of less moment may be overlooked although the mental 
 disturbance and moral constraint fall short of the intensity 
 required in treason and homicide, and though the constraint 
 proceeds from parties who are not to suffer but to profit by 
 the crime, as, for example, where a wife commits a criminal 
 act in the presence and under the influence of her husband, (h) 
 But constraint arising out of circumstances which occur in 
 the natural course of events, and not due to the unlawful con- 
 duct of others, is not such duress as justifies a criminal act. (/J
 
 § 46 STATUS OF PUBLIC OFFICERS. 55 
 
 Thus poverty, however extreme, does not excuse a theft, nor 
 danger in shipwreck warrant the sacrifice of other lives to 
 save one's own. In all cases of alleged coercion or duress the 
 law, moreover, subjects the situation of the party claiming 
 it to careful scrutiny, and allows his claim only when the fact 
 that he was compelled to act against his will is clearly 
 proved. 
 
 Read 4 Bl. Com., pp. 27-32. 
 
 (a) 81 D. 597; 1 D. 643; 19 R. 695. 
 
 (6) 98 D. 432. 
 
 (c) 7 Wall. 205. 
 
 (</) 25 R. 718; 100 D. 314. 
 
 (<0 51 D. 649. 
 
 (/) 2 Dall. 86. 
 
 (<7) 71 D. 370; 100 D. 173. 
 
 (*) 31 R. 331 ; 33 St. 114; 33 St. 88, note. 
 
 (i) 7 Cranch, 218. 
 
 Article VI. 
 
 Of the Status of Public Officers. 
 
 § 46. Of the Nature of Public Office. 
 
 A. fifth class of persons occupying an abnormal status is 
 that of public officers. Public office is a continuing charge, 
 occupation, station, or employment, created by the State for 
 the benefit of the public, and conferred by the act of the 
 sovereign upon a person or a group of persons whose official 
 duties and privileges are defined by law. It is not a con- 
 tract to which the State and the officer are parties, though 
 many of its features have a contract aspect, but a specific 
 legal condition into which the incumbent enters and from 
 which he departs, having no power over its rights and obliga- 
 tions except to bring himself into or remove himself from a 
 personal relation to them. All public offices are methods or 
 instrumentalities through which the functions of sovereign v 
 are discharged by the State; and inasmuch as the exercise of 
 these functions is in the nature of things to some extent in-
 
 56 AMERICAN JURISPRUDENCE. § 47 
 
 compatible with complete obedience to the general rules of 
 law, to that extent every public officer is exempt from the 
 authority of those general rules and is governed by special 
 rules appropriate to his office, and so far differs in status from 
 the ordinary citizen, (a) Eligibility to office equally with 
 other persons of the same status with himself is one of the 
 political rights embraced in citizenship, (b) 
 
 Head 2 Bl. Coin., pp. 3G, 37. 
 
 (a) 8 11. 488; 63 St. 174, note. 
 
 (b) 15 D, 322. 
 
 § 47. Of the Incidents of Public Office. 
 
 Public office comprises the elements of term, tenure, duties, 
 and emoluments; term, the period of its duration; tenure, the 
 conditions on which it is conferred; duties to be performed; 
 emoluments to be received, (a) It is held at the will of either 
 party unless a different term is expressed or is implied from 
 the provisions of the law, from the nature of the office, or from 
 ancient usage. It becomes vacant by the expiration of the 
 term prescribed by law, by the death or resignation of the 
 incumbent, or upon his removal by the sovereign. A resig- 
 nation may be made by acts or words but must be accepted 
 before it can take effect, (b) The power to remove an officer 
 is incidental to the power ta appoint him, and no pledge or 
 promise that the State may make to him, and no act of general 
 or special legislation, can deprive it of the right to exercise 
 this power whenever the public good requires it. In the 
 absence of specific legal restrictions an officer may be removed 
 by the appointing authority at any time and in any manner, 
 with or without cause and with or without notice. When he 
 is removable only for cause, the existence of the cause must 
 first be established by judicial investigation. The tenure 
 of an office cannot be changed during the term unless the 
 change is demanded by the interests of the public and the 
 office is neither lucrative nor honorary; but the rights and 
 duties of the officer may be extended or constricted at the 
 pleasure of the State and his compensation, although already
 
 § 48 STATUS OF PUBLIC OFFICERS. 57 
 
 definitely fixed by law, may be increased or diminished by 
 the legislature without his consent, or his office may be abol- 
 ished altogether, (c) A public office may be forfeited by the 
 refusal of the appointee to accept it, or by his non-user or 
 misuser of the authority which it confers, (d) Two or more 
 offices may vest in the same person if their respective duties 
 are not incompatible. ('') 
 
 Read (a) 6 Wall. 385 (393). 
 
 (b) 41 R. 418. 
 
 (c) 13 Pet. 230 (259); 25 D. 077, note ; 10 How. 402; 134 
 
 U. S. 99 ; 7 R. 87 ; 41 St. 606 ; 39 D. 187; 64 D. 
 680 ; 43 D. 740. 
 
 (d) 83 D. 367, note. 
 
 (e) 130 U. S. 439 (451). 
 
 § 48. Of Public Officers. 
 
 The class of public officers includes all persons and groups 
 of persons exercising executive, judicial, or legislative powers, 
 all persons engaged in the diplomatic or administrative ser- 
 vice of the State, and all the regularly commissioned or en- 
 listed members of its naval and military forces. A person 
 contracting with the State to discharge duties of a private 
 character does not thereby become an officer, nor does the pres- 
 ence of contract aspects in the relations of an officer to the 
 State render him any the less a public functionary, (a) Thus 
 an architect employed to design public buildings, a teamster 
 hired to transport military supplies, do not by reason of their 
 occupations become public officers, while common soldiers by 
 the act of enlistment obtain an official character and status, 
 although by the same act they make a contract with the State 
 to serve it in a certain manner for a specified amount of 
 wages. (!>) In number and variety these public offices and 
 their incumbents are almost beyond computation and descrip- 
 tion, and every one of them has its own body of rules by 
 which the privileges and duties attached to that particular 
 office are defined. Nevertheless, official status, as such, has 
 certain general characteristics and distinctions in which the
 
 58 AMERICAN JURISPRUDENCE. § 49 
 
 principles underlying all these various rules have been em- 
 bodied and expressed. A brief examination of these will 
 furnish the student with sufficient tests by which in any 
 given case the scope of the official status, the validity of 
 official acts, and the exemption or the officer from the opera- 
 tion of the general rules of law, may be determined. 
 Read (a) 99 U. S. 508 ; 103 U. S. 5 ; 72 D. 169, note 
 (/,) 137 U. S. 147. 
 
 § 49. Of Officers de Jure and Officers de Facto. 
 
 Public officers are either officers de jure or officers de facto. 
 An officer de jure is one who has been in all respects legally 
 elected or appointed, and who has duly qualified by taking 
 the official oath, filing the official bond, and performing all 
 the other prerequisites to the assumption of his official 
 duties, (a) An officer de facto is one who, having been appar- 
 ently though not actually appointed or elected and qualified 
 in strict accordance with the law, is recognized by the public 
 as an officer and, under color of his apparent appointment or 
 election, performs official acts in the customary manner, (b) 
 A person duly elected or appointed to an office, but who never 
 qualifies or acts, is not an officer at all. A mere usurper, 
 discharging official duties without color of an appointment or 
 election, is not an officer — not even a de facto officer, (c) 
 The law presumes that all persons exercising official functions 
 under color of a lawful election or appointment are officers 
 de jure, and though it permits either the State or the true 
 incumbent to attack the official character of an officer de facto, 
 it does not impose upon the general public nor upon private 
 parties the task of ascertaining the legality of his appoint- 
 ment or election before they can safely avail themselves of his 
 official services, (d) Thus the acts of a de facto officer are 
 valid so far as they affect public or private interests, although 
 he cannot collect compensation from the State for public ser- 
 vices nor withhold from the true incumbent such remuneration 
 as he may already have received. (<•) The title of an officer to 
 the office which he holds is tried in a proceeding known as a
 
 § 50 STATUS OF PUBLIC OFFICERS. 50 
 
 Quo Warranto, brought b}' the State in its own name, either 
 of its own motion or on the relation of some public or private 
 person. (/) 
 
 Read (a) 44 D. 574 ; :3 St. 170. 
 
 (b) 19 D. 61, note; 9 R. 409. 
 
 (c) 24 St. 276. 
 
 (,/) 10 St. 357 ; 37 St. 478, note. 
 
 (e) 10 St. 280 ; 8 St. 17; 28 St. 163. 
 
 (/) 45 D. 355 ; 30 D. 33, note ; 171 U. S. 366. 
 
 § 50. Of Ministerial Officers and Judicial Officers. 
 
 The duties of public officers are either ministerial or judi- 
 cial, (a) A ministerial duty is one which must be performed 
 in a prescribed manner, without any exercise of choice or 
 discretion on the part of the officer. A judicial duty is one 
 which either as to the fact of its performance or as to the mode 
 of its performance is entrusted to the judgment of the officer. 
 Duties of both these kinds are connected with almost every 
 office, and consequently officers purely ministerial or purely 
 judicial are rarely found. .Many details of acts, which as 
 a whole are ministerial, are also necessarily left to the dis- 
 cretion of the officer, simply because the law cannot foresee 
 all the circumstances which may attend future official acts 
 and formulate rules to meet every possible emergencj*. As 
 the authority and liability of an officer for his judicial acts 
 are very different from his authority and liability for minis- 
 terial acts, whenever the question arises as to the lawfulness 
 of official action the first inquiry is directed to this distinc- 
 tion; and if the act, or thai part of it whose legality is 
 doubted, were ministerial its lawfulness is measured by one 
 standard, and if it were judicial by another. If the act were 
 ministerial and the officer has departed in any particular from 
 the specific directions given him by the law, he has exceeded 
 his authority and is liable in damages to the injured party, 
 for whose relief from the disastrous consequences of the un- 
 warranted official action the courts in other effective ways will 
 interfere, (b) If the act were judicial, and in a matter law-
 
 60 AMERICAN JURISPRUDENCE. § 51 
 
 fully submitted to the officer, it is valid in spite of his mani- 
 fest errors of judgment, and he incurs no liability thereby 
 unless his decision is proved to have been wilfully oppressive 
 and corrupt, (c) But judges of the higher courts, or courts of 
 record, are not liable to private parties for any act of a judi- 
 cial character within their jurisdiction, whatever may have 
 been their motives, though they are subject to impeachment 
 for corruption at the instance of the State, (d) 
 
 Read (a) 79 D. 468, note. 
 
 (b) 40 D. 131; 18 How. 396; 94 D. 571. 
 
 (c) 10 D. 582; 68 I). 735. 
 
 (d) 18 D. 432; 7 Wall. 523; 13 Wall. 335. 
 
 § 51. Of the Responsibility of Public Officers for their Acts 
 and Defaults. 
 
 The State is not responsible for the misconduct or neglect 
 of public officers, nor does it guarantee the validity of their 
 official acts, nor when performed on its behalf is it bound by 
 them beyond the scope of the authority it has conferred, («) 
 Superior officers are not liable for the negligence or unlawful 
 conduct of their deputies unless they knowingly employ im- 
 proper ones, or the illegal action or default resulted directly 
 from their prohibitions or commands, (b) . Every officer is 
 chargeable with knowledge of his legal duties, and of the 
 limits of his own authority, and if he happens, in a given 
 instance, to be ignorant, his ignorance is imputed to him as a 
 fault and affords him no protection, (c) When he obeys tho 
 mandate of a court which has no jurisdiction to issue the 
 command, or acts in pursuance of unlawful orders from his 
 civil or military superiors, he is no less amenable to suit or 
 prosecution than if his actions or omissions were sponta- 
 neous, unless the circumstances show that he was under actual 
 coercion or duress, (d) On the other hand, where a public offi- 
 cer acts within,the scope of his authority, or in obedience to 
 the lawful directions of his superiors, he incurs no personal 
 responsibility, and other persons, suffering from his acts, 
 must look for compensation or relief to the State or private
 
 § 52 STATUS OF PUBLIC OFFICERS. 61 
 
 parties or official masters, on whose behalf or by whose orders 
 they have been performed, (e) 
 
 Read (a) 8 Wall. 269 ; 112 U. S. 24 (31). 
 (/,) 127 U. S. 507 ; 94 D. 461. 
 (c) 13 How. 115 (137); 2 Cranch, 170 (179). 
 (</) 20 D. 95 ; 89 D. 605. 
 (e) 21 D. 181, note; 14 Wall. 613; 61 D. 470. 
 
 § 52. Of the Remedies and Penalties for Breaches of Official 
 Duty. 
 
 Public officers may violate the trust reposed in them by 
 failing to act where it is their duty to act("), by acting where 
 it is their duty not to act(i), and by performing an official 
 act in one way when it is their duty to perform it in an- 
 other, (c) By either of these methods the interests of the 
 State may be imperilled, the persons or property of private 
 parties may sustain an injury, and the officer himself become 
 liable to impeachment and removal, or to summary dismis- 
 sal, or to prosecution for the crimes of official negligence or 
 oppression, or to a suit for damages, or to proceedings in the 
 courts of law or equity to compel him to correct the wrong. 
 The process of impeachment and removal is usually confined 
 to officers of great political importance, such as the President 
 the governors of States, and judges of the higher courts, over 
 whom there is no superior to whom they are accountable and 
 by whom they could be dismissed; and officers found guilty 
 on this process are not only ousted from the office which they 
 have abused, but are forever disqualified from holding any 
 other, (d) The punishment of summary dismissal is inflicted 
 by superior officers upon their inferiors or by legislative bodies 
 on their members after such a trial as the law in either case 
 provides; and every officer, unless belonging to a class ex- 
 pressly exempted from the jurisdiction of the criminal courts, 
 is subject to indictment for his unlawful actions or omis- 
 sions, (c) In affording a remedy to a private person for the mis- 
 conduct, of a public officer the courts are guided by the nature 
 of the official act in question as ministerial or judicial, the form
 
 62 AMERICAN JURISPRUDENCE. § 53 
 
 of the misconduct as a refusal to act or an unlawful action, 
 and the relative date of the misconduct as past or prospective. 
 Wrongful official acts reasonably expected but not yet com- 
 mitted may be prevented by a writ of prohibition or an injunc- 
 tion issuing from a court of equity. (/) The performance of 
 a ministerial act in the prescribed method, and the exercise of 
 judicial power where a party has the right to invoke its exer- 
 cise, may, on the officer's refusal to discharge his duty, be 
 compelled b} r a mandamus or injunction, (g) Against the conse- 
 quences of unlawful acts already committed, or of ministerial 
 acts improperly performed, the courts of equity can some- 
 times give relief by placing the injured party in his former 
 condition; in other cases resort must be had to the courts of 
 law for compensation. For errors in judicial acts which were 
 within the sphere of the officer's authority no suit at law or 
 equity can be maintained; the only remedy is by writ of 
 error or appeal. (A) All persons dealing with public officers 
 are presumed to be cognizant of the scope of their authority, 
 and if ignorant thereof act at their own peril. (i) 
 
 Read Cooley, C. Law. Ch. vii, pp. 175-178. 
 
 (a) 1 1 Wall. 136 ; 40 D. 305, note; 12 D. 201, note ; 95 D. 
 
 418, note 
 
 (b) 111 U. S. 17. 
 
 (c) 14 D. 352, note; 90 D. 713, note. 
 
 (d) 15 D. 322 (327); 85 D. 643. 
 
 (e) 35 D. 551 ; 63 D. 768, note; 74 D. 676, note. 
 (/) 12 D. 596. note; 87 D. 578. 
 
 (g) 33 D. 346; 7 Wall. 347; 128 U. S. 40 
 
 (A) 48 D. 652. 
 
 (0 93 U. S. 247(256,257). 
 
 § 53. Of the Exemption of Public Officers from the Liabilities 
 of Normal Status. 
 The exemption of a public officer from the general rules of 
 law is commensurate with the freedom of action required for 
 the performance of the official duties which have been imposed 
 upon him. Thus, for example, the ambassadors and other 
 diplomatic representatives of foreign nations, whose official
 
 § 54 STATUS OF ALIENS, INDIANS, SLAVES. 63 
 
 relations are directly with the State itself, are relieved from 
 every obligation to its laws, (a) The members of a legislative 
 body are not subject to arrest on civil process while in attend- 
 ance on its sessions or while going to or returning from its 
 place of meeting; nor are they liable for their legislative acts 
 or for their utterances in debate except to the body to which 
 they belong, (b) The military commander of a district in 
 time of war, or of great popular commotion when the ordinary 
 machinery of the law is powerless, may set the entire system 
 of law aside and establish a temporary system in its stead, 
 of which he is at once the lawgiver, the judge, and the exec- 
 utive, (c) Officers of all grades, in serving process, in execut- 
 ing judgments, in collecting revenue, and in every other mode 
 of public service, may perform acts which in others would be 
 trespasses to person or property, unlawful attacks upon repu- 
 tation, invasions of personal liberty, and in some cases even 
 crimes. These exemptions may extend also to their prop- 
 erty, — the residence of an ambassador partaking of the 
 sacredness of his own person, and the fees and salaries of 
 public officers in general being free from liability to attach- 
 ment or execution, (d) 
 
 Read 1 Bl. Com., pp. 164, 165,253-255 ; 1 Kent, Lect. ii, pp. 38, 
 39, 44, 45; Cooley, C Law, Ch. iv, pp. 61-63, Ch. 
 vii, p. 174, Ch. xiv, pp. 303, 304 ; Woolsey, §§ 87- 
 96; 1 Whart. I. L. Dig. §§92-105; Vattel, Book iv, 
 Ch. vii-ix. 
 
 (a) 7 Cranch, 116. 
 
 (b) 3 I). 189; 4 Dall. 107 
 
 (c) 4 Wall. 2(127). 
 
 (d) -J3 R. 661 ; 16 Pet. 435. 
 
 Article VII. 
 Of the Status of Aliens and other Persons who are not Citizens 
 
 § 54. Of Citizenship. 
 
 The sixth form of the abnormal status of natural persons, 
 and the last one which it will be necessary to particularly
 
 64 AMERICAN JURISPRUDENCE. § 54 
 
 notice, is that of aliens and other persons who are not citi- 
 zens. The general laws are made for the government of 
 citizens and the protection of their legal rights, and conse- 
 quently citizenship is an essential element of normal status 
 although the status of some citizens may be abnormal on 
 account of their infancy, insanity, coverture, coercion or 
 duress, or their official character. Persons not citizens, 
 therefore, depart from a normal status as to all those rights 
 and obligations which are dependent upon citizenship, and 
 also as to any special disabilities and privileges which the 
 law may prescribe in reference to them. The distinctions 
 between citizenship and non-citizenship depend partly upon 
 the nature of things and partly upon the enactments of posi- 
 tive law. Citizens are members of the political society or 
 State. Taken collectively, they compose the State and exer- 
 cise sovereignty through the representatives whom they ap- 
 point, (a) Every State, properly so called, in that it possesses 
 sovereignty, is separate from and independent of every other 
 State, and in modern times and among civilized races asserts 
 its sovereignty over a limited territorial area and a definite 
 population. Sovereignty is necessarily exclusive. It must 
 reside in its entirety within the State over whose territory 
 and people it is exercised, otherwise it would not be sov- 
 ereignty, and hence its source must be the members of that 
 political society, the citizens of that State, and them alone. 
 The group of citizens composing any given State is, there- 
 fore, always distinct from that composing any other State; 
 and for this reason a person cannot be at the same time a citizen 
 of two or more sovereign States, nor can he be a citizen at all 
 unless he is a member of some community which has a com- 
 plete political organization and governs itself with an exclu- 
 sive sovereignty. Thus, with regard to their political 
 relations to any given State, natural persons may be divided 
 into three classes: (1) Citizens of that State; (2) Aliens, or 
 citizens of other States; (3) Persons, not citizens of any 
 State. Every person belongs to one of these three classes; no 
 person can belong at the same time to more than one. 
 Read (a) 92 U. S. 542 ; 19 How. 393 (404).
 
 § 55 STATUS OF ALIENS, INDIANS, SLAVES. 65 
 
 § 55. Of the Right to Citizenship 
 
 Every State possesses the inherent right to determine for 
 itself what persons may be admitted to its citizenship. ('/) 
 The State is formed by the free consent of its individual mem- 
 bers to unite in a political organization, and this free consent 
 relates not only to the act of the individual in joining the 
 association, but to the act of the association in admitting him 
 to membership. The power to accept contains the power to 
 exclude, and therefore every State must, of its own nature, 
 and as a condition of its existence as a State, have the au- 
 thority to confine its membership within such limits as it 
 deems expedient, (b) But while it may prescribe rules of ex- 
 clusion, it cannot trespass on the sovereignty of other States 
 over their own territory and population by making citizens of 
 whom it will. Within its own domain and over all persons 
 who reside therein its power is absolute. It may require all 
 residents to become citizens, and on such conditions as it may 
 elect, under penalty of exclusion from its borders; or it may 
 restrict citizenship to those whom, judging by such standards 
 as it pleases, it may consider qualified to exercise political 
 rights and discharge political obligations. Until a very 
 recent period this right to admit or exclude was supposed to 
 cover also the right to retain, and consequently citizenship 
 once conferred by a State upon an individual could not be 
 repudiated by him without the State's consent. This position 
 is still maintained by many nations, among whom the idea 
 that the existence of the State rests on the free consent of its 
 members does not yet fully prevail. It was even asserted by 
 the courts of this country in the earlier days of the republic. 
 But it is not consistent with our theory of the nature of the 
 State or the personal liberty of citizens, and was long since 
 by statutes and decisions so tar modified as to be practically 
 eliminated from our law. (c) 
 
 Read Vattel, Rook i. Ch. xix ; 2 Wluirt. I. L. Dig. §§ 171-172 a; 
 17G-1S-2. 
 
 (a) 84 I). 7()i>. 
 
 (b) 130 U. S. 581. 
 
 (c) 33 1) 546. 
 
 5
 
 66 AMERICAN JURISPRUDENCE. § 56 
 
 § 56. Of Citizenship of the United States by Birtlj and by 
 Adoption. 
 Persons become citizens of the United States by birth or 
 by adoption, (a) Citizenship by birth vests in all persons 
 born in any part of the world whose parents are citizens of 
 the United States, and in all persons, except Indians and 
 the children of diplomatic officers of foreign States, whose 
 parents at the time of their birth were resident in the United 
 States. Citizenship by adoption is ordinarily conferred on 
 residents, who are not citizens by birth, by a proceeding 
 in some competent court of record in the United States 
 called naturalization, upon their public renunciation of all 
 foreign citizenship and their acceptance of the duties and 
 obligations of our own, the conditions precedent to which 
 and the method of procedure being fixed from time to time by 
 Acts of Congress, (b) The admission of new territory with its 
 population into the Federal Union as a State bestows a simi- 
 lar citizenship upon all its members, (c) Citizenship by birth 
 exists irrespective of sex, color, race, or previous condition of 
 servitude. Citizenship by adoption extends to the wife and 
 minor children of the person naturalized if they reside also in 
 this country, (d) Citizenship of the United States is lost only 
 by death or by the adoption of the person as a citizen of some 
 other nation, (e) The marriage of a female citizen with an 
 alien does not deprive her of her citizenship, nor does the 
 temporary submission of a citizen to a hostile military force 
 occupying the territory where he resides work any permanent 
 change in his relations to the State, although for the time 
 being it may be necessary to treat him as an enemy. (/) 
 
 Read 1 Bl. Com., pp. 36G-371, 373, 374 ; 2 Kent, Lect. xxv, 
 pp. 30-53, 64-73: Cooley, C. Law, Ch. iv, pp. 88, 
 89, Ch. xiv, pp 268-272 ; 2 Whart. I. L. Dig. §§ 
 173-175, 183-188. 
 («) 169 U. S. 649. 
 
 (b) 68 D. 735. 
 
 (c) 143 U. S. 135. 
 
 <>/) 7 Wall. 496 ; 6 Cranch, 176. 
 (e) 84 D. 193, note. 
 (/) 3 Pet. 242.
 
 § 57 STATUS OF ALIENS, INDIANS, SLAVES. 67 
 
 § 57. Of Citizenship of the Individual States of the American 
 Union. 
 
 In addition to his citizenship of the United States, every 
 citizen is a citizen also of the individual State in which he 
 may reside, (a) These individual States were once independ- 
 ent political societies, each exercising sovereignty within its 
 own territory, and though they have ceased to be such since 
 their admission into the Federal Union, their organic form is 
 still preserved and some residuum of their ancient sovereignty 
 remains. Citizenship of such a State is not, therefore, in it- 
 self precisely the same thing as citizenship of the United 
 States, which is an independent nation, but so far as the in- 
 dividual State is now a State its members are truly citizens. 
 They owe to it an allegiance subordinate to that due to the 
 United States, participate in its restricted sovereignty, exer- 
 cise in reference to it certain political rights, and are entitled 
 to the protection of its institutions and its laws, (b) Over this 
 citizenship, such as it is, the individual State retains con- 
 trol, both as to its privileges and qualifications, subject to 
 the provisions of the Federal Constitution, which prohibit it 
 from denying citizenship to any person on the ground of race, 
 color, or previous condition of servitude, and compel it to 
 allow to the citizens of all other States of the Union the im- 
 munities which it confers upon its own. (c) State citizen- 
 ship is transferable at the pleasure of the citizen by a bona 
 />'</>■ change of residence with an intention to make the new 
 State his permanent place of abode; but transient change of 
 habitation for the purpose of eluding the jurisdiction of the 
 local courts, or with any other fraudulent design has no effect 
 upon his citizenship. (W) Persons whose birthplace is uncer- 
 tain, but who. for aught that appears, may have been born 
 in the State, and who have long resided in its territory, are 
 likewise recognized as citizens, (e) 
 
 Read (a) 6 Pet. 761. 
 
 (//) 95 I). 350. 
 
 (c) 16 Wall. 36; 94 U. S. 301 ; 92 U. S.214. 
 
 (</) 129 V. S. 315 
 
 (<?) 6 How. !<;:; (185).
 
 68 AMERICAN JURISPRUDENCE. §§ 58, 59 
 
 § 58. Of the Political Rights of Citizens. 
 
 Citizenship confers upon a person certain general rights and 
 imposes on him certain general obligations. His rights may 
 be divided into two: (1) To participate equally with all other 
 citizens in the exercise of the sovereignty of the State ; (2) To 
 be protected by the State in his person, in his property, and 
 in his various relations. His duties are likewise two: (1) To 
 support the State; (2) To obey its laws. The mode in which 
 he participates in the exercise of sovereignty depends upon 
 the form of government which the State has adopted, and 
 the general plan upon which its institutions are conducted. 
 It is not necessary that he should be eligible to office, nor 
 enjoy the privilege of suffrage, nor directly take part in any 
 governmental function, nor even be called upon for any public 
 expression of his wishes or opinions in reference to political 
 affairs, (a) If equally with other citizens of his own status, 
 and on the same conditions, he enjoys these privileges and all 
 enjoy them so far as the nature of the State permits, his rights 
 and theirs are respected and preserved, (b) The sovereignty 
 of any civilized state, the character of its institutions, the 
 direction of its progress, the general tendency of its domes- 
 tic laws and foreign policy, are always manifestations of the 
 settled convictions of its people, and in the development of 
 these convictions every citizen who has reached the age of 
 reason, whether male or female, infant or adult, participates 
 in proportion to his personal intelligence and his devotion 
 to his country. 
 
 Read Cooley, C. Law, Ch. xiv, pp. 275-294; Cooley, Const. 
 Lim. Ch. xvii. 
 (a) 21 Wall. 162; 29 R. 582, note ; 97 D. 248, note. 
 (6) 92 U. S. 542. 
 
 § 59. Of the Personal Rights of Citizens. 
 
 A citizen is entitled to the complete legal protection by the 
 State of his person, his property, and his relative rights 
 against all wrongdoers, whether these are his fellow-citizens, 
 the officers of the State itself, or the citizens or officers of
 
 § 60 STATUS OF ALIENS, INDIANS, SLAVES. G9 
 
 foreign States. All the wrongs committed by one citizen 
 against another, and many of those committed by public offi- 
 cers against private citizens, are either torts or crimes, and 
 these it is the duty of the State to prevent, if possible, by 
 appropriate laws suitably enforced and to give adequate com- 
 pensation for them when they are committed. Official wrongs 
 outside the field of crimes and torts, such as oppressive legis- 
 lation, corruption or incompetency in the courts, or the be- 
 trayal of their trust by high executives, the State should guard 
 against by proper constitutional provisions, by the restric- 
 tions which it throws around the action of its courts and 
 legislatures, and by the condign punishment of the offender 
 by impeachment and removal. Wrongs committed by a citi- 
 zen of a foreign State, if not redressed by the tribunals of that 
 State, become a ground of complaint against it on the part of 
 the State whose citizen has suffered injury, and this complaint 
 may be enforced, if need be, by reprisal or by actual war. 
 The same mode of redress is open when the citizen of one 
 State is injured by the direct action of a foreign State. 
 
 Read 1 Bl. Com., pp. 125-128, 141, 142, 2:53-236, 309 ; Vattel, 
 Book i, §§ 3S-51, 158-172, Book ii, §§ 71-7S, 341- 
 350; 2 Burlamaqui, pp. 90-107, 178, 179, 180-183; 
 Woolsey, §§76, 116, 118. 
 
 § 60. Of the Duties of Citizens. 
 
 The obligation of a citizen to support the State extends to 
 both his person and his property. It is his duty, when called 
 upon according to the rules of law, to render personal service 
 in the military or naval forces, to aid in the pursuit and ar- 
 rest of criminals, to give assistance to executive officers, to 
 sir on juries and to perform any other acts for the public which 
 the law may from time to time require. Out of Ins property 
 lie must pay taxes in whatever form the State may lawfully 
 impose them as his proportionate contribution toward public 
 expenses, and, furthermore, he must surrender his specific 
 property to the State for public use whenever, in the judgment 
 of the State, necessity demands it. (a) His obligation to obey
 
 70 AMERICAN JURISPRUDENCE. § 61 
 
 the laws relates to all the laws which have been made for the 
 observance of natural persons, unless through infancy, in- 
 sanity, or some abnormality of status consistent with his citi- 
 zenship he has become exempted from their operation. 
 
 Read Cooley, C. Law, Ch. iv, pp. 56-61 ; Cooley, Const. Lim., 
 Ch. xiv. 
 (a) 88 D. 515. 
 
 § 61. Of the Abnormal Status of Aliens. 
 
 The peculiar attributes which characterize the status of 
 alienage are suggested by this description of the rights and 
 duties of a citizen. An alien is a citizen of a State other 
 than our own. If he lives in this country he is known as a 
 denizen or resident alien. If his nation is at peace with ours, 
 he is an alien friend; if war prevails between them, he is an 
 alien enemy. An alien friend, resident abroad, has no legal 
 rights or duties in reference to the United States except as to 
 whatever property of his may be within our borders. Ho 
 cannot participate with our own citizens in the exercise of 
 sovereignty, nor meddle with the conduct of our political 
 affairs otherwise than by the expression of his opinion or 
 advice. He has no claims upon our government for the pro- 
 tection or redress of any injuries not threatened or committed 
 by itself or by its subjects, owes it no duty of public service, 
 and is not personally bound to contribute to its support nor 
 under any obligation to obey its laws. The property which 
 he holds in this country is, however, under its control. As 
 to that, his ownership, enjoyment, and responsibilities are 
 measured by our laws. A resident alien friend enters into a 
 closer relation with the State. He cannot legitimately parti- 
 cipate in political affairs, nor be obliged to serve the State in 
 any governmental capacity, as in the army or the navy, or as 
 a public officer or on a jury, but is liable to all the private 
 duties of a citizen and entitled to the personal protection of 
 our laws, (a) His property in this country is also held, trans- 
 mitted, and defended by our laws, and is subject to the same 
 burdens as that of our own citizens. An alien enemy, wher- 
 ever resident, has no legal rights, either of property or person,
 
 § 62 STATUS OF ALIENS, INDIANS, SLAVES. 71 
 
 but if within our borders might, as a matter of strict law, be 
 treated as a prisoner of war, and all his property might be 
 confiscated by the State. Customs of long standing and 
 observance among civilized nations have, in modern times, 
 established a policy more liberal and humane, and resident 
 alien enemies, not actually engaged in hostile machinations, 
 are now accorded the same rights as alien friends, (b) 
 
 Read 1 Bl. Coin., p. 372. 
 (a) 9 R. 489. 
 (6) 8 Crauch, 253 (283, 291-295). 
 
 § 62. Of Recent Ameliorations in the Abnormal Status of 
 Aliens. 
 
 The disabilities which attend the status of alienage were 
 formerly extensive and severe. Under the laws which once 
 prevailed in this country as well as England an alien could 
 acquire real property only by purchase and could hold it only 
 until the sovereign saw fit to take it away, (a) He was per- 
 mitted to own personal estate and to dispose of it by sale or 
 gift or testament, but he had no inheritable blood and could 
 neither be the heir of any other person nor have heirs of his 
 own. (J) He was distinctly disfavored by the law, which 
 seemtfd to have been framed in order to discourage and, if 
 possible, prevent the residence of foreigners and compel them 
 to remain in the countries in which they were born. The ad- 
 vent of the United States into the family of nations, with its 
 immense and sparsely peopled territory and its inexhaustible 
 but almost wholly undeveloped resources, soon dissipated 
 these exclusive theories and introduced a new policy into the 
 common law. The necessity of increasing the population as 
 rapidly. as possible became apparent, and laws encouraging 
 emigration and removing many of the disabilities of alien 
 residents were speedily enacted. Every inducement was of- 
 fered to such residents to become citizens, and during the 
 past century a gradual assimilation of their status, as to per- 
 sonal rights, to that of citizens has been in progress. Their 
 political disabilities still remain, for these are the essential 
 elements which differentiate the alien from the citizen; but
 
 72 AMERICAN JURISPRUDENCE. § 63 
 
 they now stand before the courts and have the same rights in 
 real and personal property as if they were citizens, (c) Non- 
 resident aliens are also allowed to purchase and hold lands 
 and to transmit them by deed or will to other aliens; but it 
 is still the law, at least in some of our States, that they have 
 no inheritable blood and, therefore, cannot take lands by 
 descent either from resident aliens or citizens. Where this 
 doctrine is recognized no other person, whether citizen or 
 alien, can inherit lands from any citizen or resident alien, if, 
 in order to inherit, he must trace his relationship to the 
 former owner through a non-resident alien who could not him- 
 self have inherited the property. This disability is, in fact, 
 almost the only private one remaining of the many from 
 which aliens suffered a hundred years ago. 
 
 Read 1 Bl. Com., pp. 369-372; 1 Kent, Lect. hi, pp. 56-65; 
 
 2 Kent, Lect. xxv, pp. 53-73; Vattel, Book ii, 
 
 §§ 99-115, Book iii, §§ 70-77; Woolsey, §§ 65-69, 
 
 71-74, 124-126 ; 2 Whart. I. L. Dig. §§ 201-206. 
 
 («) 7 Cranch, 603 ; 11 Wheat. 332. 
 
 (b) 6 Pet. 102 ; 24 D. 198. 
 
 (c) 1 Wash. R. P. p. 49, note 1 ; 76 D. 622, note. 
 
 § 63. Of the Abnormal Status of Indians. 
 
 The principal persons who are not citizens of any State, 
 and of whom our laws in any way take notice, are the Indian 
 tribes inhabiting the territory of the United States. These 
 are conquered peoples whom it has been the policy of our 
 government not to civilize and incorporate among our own 
 people but to maintain in a certain state of independence. 
 They are not citizens of the United States but distinct nations, 
 and yet not nations in a legal sense as enjoying an exclusive 
 sovereignty over themselves. They are States, having their 
 own rules and customs, but neither States foreign to the 
 United States nor States of our Federal Union. They are 
 domestic, dependent nations, the wards of the United States, 
 to whom our government stands in loco parentis. They are 
 subject to the Acts of Congress and the laws of the United
 
 § 64 STATUS OF ALIENS, INDIANS, SLAVES. 73 
 
 States and yet possess a political autonomy which enables them 
 to treat with the United States like other nations and makes 
 a treaty with them the supreme law of the land. Their status 
 is thus a most peculiar one, difficult alike to justify and to 
 understand, not capable of any clear general statement but 
 expressed only in the detailed treaties and statutes by which 
 their position before the laws of the United States has been 
 defined, (a) 
 
 Read 1 Kent, Lect. xii, pp. 257-260; 2 Whart. I. L. Dig. 
 §§ 208-211. 
 (a) 8 Wheat. 543; 5 Pet. 1 ; 17 Wall. 211 (243); 112 
 U. S. 94; 118 U. S 375; 11 D. 351. 
 
 § 64. Of the Abnormal Status of Slaves. 
 
 A slave, though actually a natural person and by birth 
 entitled to all the rights of any other person, has in law no 
 status, because in law he is not a person but a thing. By his 
 reduction to a state of involuntary servitude he has surrendered 
 or been deprived of his capacity to think and will for himself, 
 and has become wholly subject to the will of other men. The 
 law can logically take no other notice of him than of any 
 other animal whom it may restrain or destroy for the good of 
 society, and who can have no rights which the law can recog- 
 nize or protect and no duties which he can be expected to 
 perform. Illogically or not, however, the law is in some cases 
 compelled to impute to him personal attributes and treat 
 him as capable of self-guidance and criminal responsibility. 
 While the Constitution and the people of the United States 
 tolerated the institution of slavery, this was the status, or 
 want of status, of the slave, (a) The abolition of the institu- 
 tion and the Amendments to the Federal Constitution gave to 
 former slaves the privileges of citizenship and placed them 
 upon equal ground before the law with those who had been 
 always free. 
 
 Read 1 BI. Com., pp. 123-425 ; 2 Kent, Lect. xxxii, pp. 248- 
 258 ; Cooley. C. Law, Ch. xiii. pp. 233-240. 
 (a) 19 Mow. 393; 44 1>. 241.
 
 74 AMERICAN JURISPRUDENCE. §§65,66 
 
 § 65. Of the Dependence of Status upon Law. 
 
 In closing the discussion of this subject it may be useful to 
 repeat that in most instances it is the law which determines 
 status and defines its rights and duties. («) Except in those 
 cases where abnormality of status arises out of the essential 
 nature of political relations, as in alienage or public office, 
 varieties of status are altogether artificial ; and were it deemed 
 advisable the State could abolish these distinctions and govern 
 all natural persons by the same uniform rules. But it is in 
 the interest of justice and humanity that these distinctions 
 should be made and recognized, and the law fitted as far as 
 may be to the exigencies of each individual or class of indi- 
 viduals ; and one of the chief characteristics as well as causes 
 of the progressive amelioration of social and political condi- 
 tions is the increasing minuteness of the classification by 
 which one status is distinguished from another. 
 Read (a) 19 How. 393 (595) ; 55 D. 87. 
 
 SECTION III. 
 
 OF DOMICILE. 
 
 § 66. Of the Nature of Domicile. 
 
 Every natural person has a domicile. Domicile is the place 
 in which a person has his legal home, (a) The nature of 
 political society requires that every member of it must have 
 his political abode within the territory over which it exercises 
 sovereignty, although he may be physically absent from it ; 
 and when its territory is divided into minor districts which 
 limit the local jurisdiction of its courts, the precincts of its 
 executive officers, the enjoyment of the elective franchise, the 
 imposition of taxes, and other governmental operations, or in 
 which special rules control the ownership and transmission 
 of property, it is necessary that every person should be so 
 related to one of these districts, to the exclusion of all others, 
 that his legal privileges and obligations may at any moment 
 be precisely ascertained, (b) Residence and domicile are, there- 
 fore, not identical in law. Residence is any place in which
 
 § 67 DOMICILE. 75 
 
 the person physically abides, as distinguished from the place 
 in which he tarries on his journey to some other place, and 
 includes the elements of bodily presence and an intention to 
 remain for a greater or less period of time as an inhabitant. 
 A person may thus have many residences, alternate or suc- 
 cessive, for purposes of business or pleasure, yet none of these 
 may be the place where he politically belongs and has his legal 
 home, (c) Domicile is a matter not merely of physical pres- 
 ence or of interior intention (d), but of legal relation, although 
 the law presumes that every person resides where he now is, 
 and that his place of residence and domicile are one, until 
 an investigation causes his true residence or domicile to 
 appear, (e) 
 
 Read (a) S3 I). 502. 
 {h) 23 St. 37. 
 
 (c) 32 D. 423 ; 55 D. 350 ; 48 St. 706, note. 
 
 (d) 59 D. 107, note: 61 D. 530. 
 
 (e) 39 D. 142; 60 D. 135. 
 
 § 67. Of the Locality of Domicile. 
 
 Domicile is a place having a fixed centre but a variable 
 circumference. The fixed centre is the precise spot on which 
 or in which the person dwells when he is at his legal home. 
 This point of contact between the person and the locality 
 remains always the same, but the area covered by the dom- 
 icile enlarges or contracts with the legal purposes for which 
 the domicile has been established. A person, for instance, 
 has his legal home in one of the wards of a certain city ; the 
 city is included in a town; the town in a probate district ; the 
 probate district in a county ; the county in a State ; the State 
 in the United States. The exact spot which constitutes his 
 legal home may never vary during his lifetime, but for some 
 purposes, such as the time and place of voting for city officers 
 and the candidates for whom he may cast his ballot, his dom- 
 icile is the city ward ; for other purposes, such as public- 
 school privileges, city ordinances and taxation, the city is his 
 domicile; for other purposes, such as the election of repre-
 
 76 AMERICAN JURISPRUDENCE. § 68 
 
 sentatives to the State legislature, the town is his domicile ; 
 for the settlement of his estate after his decease, the probate 
 district is his domicile; for the> jurisdiction of county courts, 
 his domicile is the county ; for every governmental purpose not 
 distinctly national or by the Federal Constitution exclusively 
 lodged in the United States, the State is his domicile; for na- 
 tional purposes and for all other matters over which the United 
 States has the sole jurisdiction, his domicile is bounded by 
 the limits of the United States. Two persons may thus have 
 the same domicile in reference to one political subdivision of 
 the territory and a different domicile in reference to another ; 
 the same as to the city, different as to the ward; the same as 
 to the United States, different as to the State ; and only those 
 whose legal homes are in the same minutest subdivision can 
 have in all respects precisely the same domicile, and subject 
 to their differences of status enjoy exactly identical legal 
 rights, (a) 
 
 Read (a) 10 R. 698. 
 
 § 68. Of the Domicile of Origin. 
 
 The first domicile which any person has is his domicile of 
 origin, to which he becomes legally attached by operation of 
 law at the earliest moment of his independent physical exist- 
 ence. In the case of a legitimate child this is the place 
 where its father had his domicile at the date of the birth of 
 the child ; if the child is illegitimate, its domicile is the place 
 where it is born, or according to some authorities the place 
 where at its birth its mother has her domicile. The domicile 
 of origin, thus acquired without the concurrence of the per- 
 son, remains until it is exchanged for another either by the 
 person himself or by some other person competent to change 
 it. (a) A male infant cannot alter his own domicile, but fol- 
 lows that of his father while the father lives, then that of his 
 mother if she still survives (!>) ; and if both parents die he re- 
 tains the domicile last acquired, unless he is removed out of the 
 State by other blood relations and by the law of his new resi- 
 dence obtains a domicile therein, (c) The domicile of a female
 
 § 69 DOMICILE. 77 
 
 infant is fixed by the same rule, except in the event of her 
 marriage, after which her domicile is that of her husband. A 
 guardian cannot change the domicile of his infant ward (d), 
 nor can a married woman, under ordinary circumstances, vary 
 her own domicile. The legal home of her husband is hers also 
 during coverture, whether she actually lives with him or 
 not. (e) But when they have been separated by the courts, 
 though not absolutely divorced, or when in order to apply 
 for a divorce it is necessary for her to possess a different 
 domicile from his, she can obtain a new one like any other 
 person. The domicile of a widow continues to be that of her 
 deceased husband until she has acquired one for herself. (/) 
 
 Read Story, Conf. L., §§ 505, 506. 
 (a) 54 D. 55. 
 
 (6) 37 D. 525; 39 St. 190 (204, 205). 
 (c) 114 U. S. 218 (222,223). 
 (</) 112 U. S. 452 (470-472). 
 (e) 110 U. S. 701. 
 (/) 21 Mow. 103. 
 
 § 69. Of Change of Domicile. 
 
 An adult, other than a married woman, has a legal right to 
 change his domicile as often as he chooses. Every domicile 
 once existing continues until a new one is obtained, and is 
 not affected by any mere absence of the person from it, how- 
 ever prolonged, (a) To change his domicile it is necessary 
 for him to take up his actual abode in the new locality with 
 the intention to finally abandon his former legal home, and to 
 make the new locality his present and future legal home either 
 permanently or for an indefinite time. The fact of his de- 
 parture from the old abode and of his residence in the new 
 one is apparent to all observers. His intention to finally 
 abandon the old home and make the new one permanent may 
 be inferred from circumstances, such as his own declarations, 
 his exercise of local political rights, his payment of personal 
 taxes, his embarkation in a settled business, or his erection or 
 purchase of a dwelling house, (b) No specified period of time 
 is necessary to perfect this transfer, (c) If the removal of
 
 78 AMERICAN JURISPRUDENCE. § 70 
 
 his home from one place to the other is complete and has 
 been coupled with the requisite intention, his domicile is 
 already changed, (d) 
 
 Read 1 Kent, Lect. iv, pp. 76-79 
 
 (a) 70 D. 372 ; 61 D. 237 
 
 (b) 21 Wall. 350; 117 U. S. 123; 34 St. 311, note. 
 
 (c) 13 St. 896. 
 
 (d) 129 U. s. 315. 
 
 § 70. Of the " Law of Domicile." 
 
 The particular system of rules in force in the locality in 
 which a person has his legal home is known as the lex dom- 
 icilii, or " the law of the domicile." To what subjects these 
 rules extend, and how large a proportion of the whole body 
 of law by which a person is governed consists of the lex 
 dot// icilii, depends upon the scope of the word "domicile" 
 when used in speaking of its law. Obviously, the lex domicilii 
 of a city is not identical with the lex domicilii of the State, 
 the. former being comprised within a narrow range of subjects 
 as compared with the latter, yet at the same time prescribing 
 many details as to which the latter establishes no rule. In 
 regard to many questions of right and duty the student will 
 find himself referred for their determination to the law of 
 domicile, and must, therefore, understand that by this law is 
 meant the entire body of rules which govern the question in 
 that particular locality where the domicile is fixed, whether 
 these rules proceed from the United States, the State, or any 
 smaller subdivision of the body politic, or have resulted from 
 the legislative acts of all, each legislating in its own peculiar 
 sphere.
 
 § 71 CORPORATIONS IX GENERAL. 79 
 
 CHAPTER III. 
 
 OF ARTIFICIAL PERSONS OR CORPORATIONS. 
 
 SECTION I. 
 
 OF THE NATURE AND ATTRIBUTES OF CORPORATIONS. 
 
 § 71. Of the Nature and Purpose of Corporations. 
 
 Artificial persons, called also "conventional persons," ^ 
 "juristic persons," "bodies politic and corporate," but most 
 commonly known as "corporations," are persons created by 
 the law for purposes which natural persons could not accom- i 
 plish. A natural person is subject to two imperfections which 
 render him incapable of meeting all the demands of social and 
 political interests. In the first place he is mortal; his reason ' 
 and will operate upon mundane affairs, so far as we know, 
 only for the short period of his eai-thly life ; and the enter- 
 prises which he inaugurated or controlled then pass under 
 the direction of other persons, who may or may not be able 
 and willing to carry forward his designs. Persistency in the \ 
 prosecution of purposes, whose realization requires a long 
 continued uniformity of intention and endeavor, can be 
 secured only by committing such purposes to personalities / 
 which do not die, but whose reason and will subsist unchanged 
 and indefectible until the ends to which they were originally 
 devoted have been fully attained; and as such personalities 
 do not exist by nature it is necessary that they should be 
 created by the law. In the second place, a natural person 
 is limited in knowledge, wisdom, energy, and possessions. 
 Conscious of these limitations, he instinctively seeks to 
 escape them by entering into combinations with other per-
 
 80 AMERICAN JURISPRUDENCE. § 72 
 
 sons, in order that by their united powers and property objects 
 might be accomplished which to his single personality would 
 be impossible. But every such voluntary combination is 
 unstable, since it depends for its existence upon the continu- 
 ing consent of all its members, and for its success upon their 
 harmonious co-operation. It is only when its existence is 
 rendered imperishable by law, and its harmonious operation 
 is guaranteed by the substitution for the several divergent 
 personalities by which it is naturally controlled of a new per- 
 sonality whose action, being single, cannot be antagonistic to 
 itself, that the highest results of human combination are 
 achieved. Hence in civilized States, in every age, these arti- 
 ficial personalities have appeared, for governmental, social, 
 charitable, religious, or commercial purposes, emanating from 
 the sovereign authority of the State and endowed by it with 
 unity, immortality, and whatever other powers and attributes 
 the accomplishment of their purposes might require. To our 
 own law they have been known for upwards of a thousand 
 years, created at first mainly for charitable and religious 
 objects, but later also for the conduct of commercial enter- 
 prises, (a) 
 
 Read 1 Bl. Com., pp. 467-469 ; 2 Kent, Lect. xxxiii, pp. 268- 
 272; Holland, Ch. xiv, pp. 298-308; Markby, 
 §§ 136-145, 324 ; Morey, pp. 262-266. 
 (a) 4 Wheat. 518 (636, 667, 668) ; 34 St. 541 (545-547). 
 
 § 72. Of the Creation of Corporations. 
 
 Corporations are created by the State; in this country, 
 through its legislative body by an act called " an act of incor- 
 poration," or "the grant of a charter." (a) This act may be 
 a special statute conferring a specific charter upon one associ- 
 ation of natural persons, or it may be a general statute pre- 
 scribing certain conditions upon the fulfilment of which any 
 association of persons will become a corporation. Where a 
 corporation is created by special statute, the statute itself 
 is at once the charter and the act of conferring it, and in it 
 the nature, attributes, and powers of the corporation are fully
 
 § 73 CORPORATIONS IN GENERAL. 81 
 
 set forth. Where the corporation is organized under a general 
 statute, the written certificate of their corporate character and 
 purposes which its members are compelled to file in some 
 public office, as one of the conditions precedent to their ac- 
 quisition of a corporate personality, describes in detail its 
 attributes and powers, and taken together with the provisions 
 of the general statute constitutes its charter, (b) To render 
 a charter effective it must be accepted by the persons on 
 whom it is conferred. As to a corporation organized under a 
 general statute, the compliance of its members with the con- 
 ditions precedent is also their acceptance of the charter, to 
 obtain which the conditions are performed. A charter 
 granted by a special statute can be accepted only after or at 
 the time the grant is made, and this acceptance may be mani- 
 fested by a formal vote of the members or by their corporate 
 action in pursuance of the grant. ('•) 
 
 Read 1 Bl. Com., pp. 472-474 ; 2 Kent, Lect. xxxiii, pp. 276, 
 277. 
 («) 95 I). 26:3; 134 U. S. 594 (599, 600) j 143 U. S. 305 
 (312, 313); 153 U. S. 525. 
 
 (b) 73 D. 658 ; 33 St. 172, note. 
 
 (c) 10 D. 34 ; 53 D. 450, note. 
 
 § 73. Of the Charter of a Corporation. 
 
 The charter of a corporation is the evidence of its organic 
 life and the definition of its personal rights and duties. Its 
 existence begins, continues, and ends at and during the 
 periods fixed by its charter, and all its privileges and obliga- 
 tions are measured by the language of that instrument, includ- 
 ing both what it expresses- and what it necessarily implies. 
 Whatever might have been the original intention of its mem- 
 bers or may now be for their interest, and whatever purpose 
 the legislature may have entertained in its creation, the char- 
 ter is the final and inflexible manifestation of that purpose 
 and intention, and cannot be enlarged by interpretation or by 
 implication beyond its evident meaning at the time it was 
 conferred. Tin' enumeration of corporate powers in the 
 
 o
 
 82 AMERICAN -TURISPRUDENCE. § 74 
 
 charter thus excludes all other powers except those whose 
 enjoyment is incidental to the exercise of such as are enu- 
 merated, and prohibits every corporate act in excess of these 
 enumerated and incidental powers, (a) In interpreting a cor- 
 porate charter the courts are guided by a double rule : first, 
 that the manifest intention of the legislature to create a cor- 
 poration with some rights and duties must be sustained; 
 second, that as to these particular rights and duties it cannot 
 have intended anything more favorable to the corporation 
 than the charter clearly defines. This is what is meant 
 when it is said that the construction of a charter must be 
 favorable to the public and against the corporation. It is 
 favorable both to the public and the corporation to assume 
 that whatever grant the public has attempted to bestow is 
 valid; it is favorable to the public and against the corpora- 
 tion to resolve all doubts as to the scope of its authority by 
 the rule that whatever is not clearly granted has not been 
 conferred. (6) 
 
 Read 1 Bl. Com., pp. 475-479 ; 2 Kent, Lect. xxxiii, pp. 298- 
 300. 
 (a) 41 R. 221; 07 D. 471 (472); 75 D. 574. 
 (6) 11 Pet. 420 (544-549); 1 Black, 358 (380); 3 Wall. 
 51 (74, 75). 
 
 § 74. Of the Franchises and Powers of a Corporation. 
 
 The. powers bestowed upon a corporation by its charter 
 are sometimes called its "franchises." A franchise, strictly 
 speaking, is a privilege which by its nature belongs solely to 
 the State, and which consequently private persons cannot en- 
 joy unless by virtue of a grant to them by the State, (a) Thus 
 the right to be or to create a legal personality, or to take the 
 property of individuals for public use, or to impose or release 
 from taxation, are franchises, being sovereign rights beyond 
 the reach of any natural person unless admitted to participate 
 in them by the act of the sovereign himself. Every corporate 
 charter confers at least one franchise of this character, — the 
 right to be a legal personality, — and may confer others ac- 
 cording to the purposes for which the corporation has been
 
 § 74 CORPORATIONS IN GENERAL. 83 
 
 formed, (b) But in addition to such rights as these every cor- 
 poration has many powers which natural persons also possess, 
 and which, therefore, are not franchises in any proper sense, 
 although they are frequently so named because they are enu- 
 merated in its charter, and if not so enumerated could not be 
 enjoyed. This distinction between the proper and improper 
 use of the term "franchise" becomes important mainly in 
 reference to the authority which a corporation has over its 
 own charter powers. A true franchise it can neither acquire, 
 control, transfer, nor abandon without the initial or concur- 
 rent action of the State, (c) Its franchises in the other sense 
 — that is, the powers it shares with every natural person — 
 it can use, disuse, or dispose of with the same freedom as any 
 other person, unless restrained by the nature of the corporate 
 body or by the provisions of its charter. Among these nat- 
 ural powers of every corporation are the power to govern itself 
 by enacting by-laws (d) and determining questions by majority 
 vote, the power to take, bold, and convey property, the power 
 to make contracts and to sue and be sued, and the power to 
 appoint officers or agents and to prescribe rules for their ob- 
 servance, always, however, within the limits set for it by the 
 act of its creation (e) ; the difference in this respect between 
 the natural and artificial persons being that the natural person 
 is a complete personality, equal in rights to every other per- 
 son, and therefore can do anything within his natural powers 
 which the law does not forbid him to do, while the artificial 
 person is a restricted personality commensurate only with 
 the purposes for which it was created, and, therefore, can do 
 nothing which the law has not expressly or impliedly clothed 
 it with authority to do. 
 
 Read 2 Bl. Com., p. 37; 2 Kent, Lect. xxxiii, pp. 277, 278, 
 289-298. 
 (a) 41 I). 109 (112). 
 (h) 3 St. 492 ; 22 D. 679, note; 69 D. 389 (391, 392). 
 
 (c) 75 D. 518, note ; 87 D. 672; 139 U S. 24; 35 St. 
 
 385, note; 43 St. 105. 
 
 (d) 49 1). 604; 85 D. 613, note. 
 
 (e) 94 1). 378. not.-; 16 1). 181.
 
 84 AMERICAN JURISPRUDENCE. § 75 
 
 § 75. Of the Officers and Agents of Corporations. 
 
 A corporation can perform physical acts only through the 
 instrumentality of its officers and agents, (a) It has no body 
 by means of which it can communicate with others by speech 
 or writing, or do or suffer anything in reference to them. 
 Its nearest approach to action is its vote, not the expression 
 of its conclusion but the conclusion itself ;. for the expression 
 is always the act of its members, who are different persons 
 from the corporation, or of some officer or agent acting in its 
 name, and its conclusion is an intellectual not a physical act. 
 These officers and agents must be appointed in accordance 
 with its charter and by-laws in order to be clothed with lawful 
 authority to act on its behalf, but the corporation may adopt 
 and ratify actions beneficial to itself when performed by per- 
 sons acting as its agents without such appointment, and will 
 thenceforth be bound by those actions as if the agents had 
 been duly authorized. (l>) For all the acts of its officers and 
 agents within their authority the corporation is liable, and 
 also for the torts and crimes which they commit in the fulfil- 
 ment of the duties which its rules prescribe, (c) 
 
 Read 1 Bl. Com., p. 470. 
 
 («) 16 D. 705; 91 U. S. 540 (545, 546). 
 (6) 5 Wall. 772 (781, 782). 
 (c) 13 D. 550. 
 
 § 76. Of Acts Ultra Vires. 
 
 Corporate acts not warranted by the charter are said to be 
 "acts ultra vires," and as such are unlawful and void. The 
 corporation itself can take no advantage by them, nor can 
 other persons dealing with it demand or retain what it had 
 no power to promise or to give, (a) This rule is not intended, 
 however, to operate in aid of fraud or injustice. While the 
 corporation cannot be compelled to perform a contract which 
 it had no right to make, nor be prevented from reclaiming 
 property which it had no right to bestow, yet persons who in 
 good faith have sold and delivered to it lands or goods which 
 it cannot restore, or paid it money for property which it has
 
 §§ 76, 77 CORPORATIONS IN GENERAL. 85 
 
 pretended to convey to them, may, notwithstanding the in- 
 validity of the express contract under which these things were 
 done, recover in equity or otherwise the value of their lands 
 or goods, or the money they have paid for property that the 
 corporation could not lawfully transfer, (b) For injuries to 
 the persons or property of other individuals, either by omis- 
 sion or commission, the corporation is also liable, although the 
 wrongful acts or defaults were wholly outside of its charter 
 powers, (c) Acts ultra vires not affecting other persons can 
 be complained of only by the State. Such are the acquisition 
 of property greater in amount or different in kind from what 
 the charter permits, or the embarking in enterprises not 
 within the purposes for which the corporation was created. 
 Violations of its charter by these and similar acts may indeed 
 indirectly prejudice the interests of private individuals, but 
 they are neither breaches of contracts nor actionable wrongs, 
 and hence the State alone can interfere, and by a proper 
 suit in its own name, through its own legal officers, can force 
 the corporation to keep within its designated sphere. (d) This 
 doctrine of ultra vires applies only to the corporate party to 
 a transaction, but where all parties are corporations it applies 
 alike to each, and the transaction will be void if, by entering 
 into it, any one of them exceeds its charter powers, (e) 
 
 Read (a) 15 D. 100, note: 99 D. 300, note; 139 U. S. 24 
 (59-61); 1G7 U. S. 3G2; 70 St. 149, note. 
 (I) 20 R. 504; 101 U. S. S3 (85-87). 
 (c) 17 R. 702 ; 52 R. 353 ; 100 U. S. 699. 
 (>/) 132 U. S. 282 (294). 
 (e) 139 U. S. 24 (54). 
 
 § 77. Of the Name and Identity of a Corporation. 
 
 A corporation, like a natural person, is known to the law 
 only by its name. That name, selected originally by its 
 members and sanctioned by the state, distinguishes this arti- 
 ficial person from all others, and by it the corporation must 
 enter into contracts, sue ami be sued, ami receive and transfer 
 property, (a) It has no power to change its name, but for
 
 86 AMERICAN JURISPRUDENCE. § 78 
 
 this purpose must have recourse to the State, although com- 
 mon usage may give it another name, and in such usage it 
 may so long acquiesce as to prevent it from disclaiming the 
 new name when charged with the liabilities which under that 
 new name it has incurred. In solemn contracts and convey- 
 ances the corporation is known also by its seal. (b) No special 
 form of seal is necessary, but whatever form is used must 
 have been lawfully adopted by the corporation, and it must 
 be affixed by some one who is duly authorized to do so. (c) 
 
 Read 1 Bl. Com., p. 475 ; 2 Kent, Lect. xxxiii, p. 292 
 
 (a) 9 D. 402 ; IS D. 7 
 
 (b) 7 Crunch, 299. 
 
 (c) 14 D. 316 ; 11 D. 551 ; 50 St. 146, note; 64 St. 257, 
 
 note. 
 
 $ 78. Of the Status of a Corporation. 
 
 The status of a corporation is always abnormal. Its im- 
 mortality and intangibility confer upon it privileges and im- 
 munities which no natural person can possess, while the 
 limitation of its powers to those enumerated in its charter 
 precludes it from rights and duties which attach to every 
 natural person whose status is normal. Thus the laws which 
 govern the transmission of property to heirs and representa- 
 tives upon the death of its former owner have no relation to 
 a corporation, because it never dies and never parts with 
 property which it has once acquired save by its own free act 
 or the superior authority of the State. Because it has no 
 body it cannot suffer corporal punishment for crime, nor be 
 guilty of a crime for which corporal punishment is the only 
 penalty, nor undergo assaults or batteries or false imprison- 
 ment, although it may be punished for offences by a fine or by 
 the destruction of its corporate existence (a), and has a repu- 
 tation which it may protect by ordinary processes of law. (/>) 
 Exempt for these reasons from the operation of a large pro- 
 portion of the rules of law, every corporation is still further 
 emancipated by the legal character imposed upon it by its 
 charter as a charitable corporation, a railroad corporation, a
 
 § T9 CORPORATIONS IS GENERAL. 87 
 
 banking corporation, or whatever it ma}- be, which, placing it 
 under the control of a special group of laws framed for the 
 direction of corporations of that peculiar character, removes 
 it from the influence of other groups of laws by which corpor- 
 ations of a different character are governed. And, finally, 
 every corporation by the provisions of its charter is differ- 
 entiated more or less from other corporations of the same legal 
 character either by particular attributes, or as to the place or 
 method or degree in which it may exercise its powers. Hence 
 the status of no two corporations can be precisely the same, 
 for should their charters be identical, except as to the artifi- 
 cial personality which they create, priority of action on the 
 part of either corporation in pursuance of its charter would 
 clothe it with the right to occupy the field in preference to the 
 other, and at once introduce into its status a new element, 
 which would effectually distinguish its present powers and 
 duties from those of its competitor. 
 
 Read (a) 87 D. 391 (391, 395). 
 (b) 57 D. 400. 
 
 § 79. Of the Domicile of a Corporation. 
 
 The domicile of a corporation, sometimes called its "citi- 
 zenship," is in the State from which it receives its charter, and 
 in that State only does it legally subsist, (a) To endow the 
 same group of natural persons with a corporate existence in 
 another State, they must obtain a charter in the second State. 
 and neither charter is aided by the other either as to the 
 extent or the definition of its powers, (b) The members of 
 a corporation are presumed to have their legal home in the 
 same State, but this is not essential unless the laws of the 
 incorporating State require it. Acts of the corporation which 
 involve the presence of the corporation itself, such as the 
 meetings and votings of its members or the enactment of by- 
 laws, must also be performed within the State of its crea- 
 tion^), but acts through officers or agents may take place in 
 any other State if its laws permit, (d) No corporation has an
 
 88 AMERICAN JURISPRUDENCE. § 80 
 
 inherent legal right to act in any manner in States other than 
 its domicile, though as a general rule States in their mutual 
 comity allow the corporations of other States to transact busi- 
 ness, enter into contracts, and hold property within their 
 borders upon such conditions as the protection of their own 
 citizens seems to require (<?), but this permission may at any 
 time be withdrawn and the foreign corporation be thenceforth 
 excluded from their territory. (/) A corporation acting in 
 another State submits itself to the local laws of that State, 
 and may sue and be sued in its local courts, so far as the 
 business there transacted or the property there situated is 
 concerned. ($) The domicile of a corporation may be re- 
 stricted to a certain district in the State, as a town or city, 
 if its charter makes its location in that district an attribute 
 of its personality, and in that case its corporate acts must be 
 performed within the district as well as within the State. (//) 
 
 Read (a) 52 D. 248. 
 
 (b) 1 Black, 286; 88 D. 579. 
 
 (c) 83 D. 329; 46 D. 619 ; 118 U. S. 161 (168-170). 
 
 (d) 33 D. 481. 
 
 (0 13 Pet. 519; 8 Wall. 168; 54 D. 522; 95 D. 529, 
 
 note. 
 (/) 125 U. S. 181 (188-190). 
 (g) 96 D. 331, note ; 171 U. S. 658. 
 (A) 73 D. 319. 
 
 § 80. Of the Control of the State over its Corporations. 
 
 A corporation is always subject to the legislative control of 
 the State from which its personality and powers were both 
 derived, (a) Under the fundamental principle that no legis- 
 lative act can trammel the freedom of a subsequent legisla- 
 ture, it might be held that the subjection of a corporation to 
 legislative control was absolute, and that its privileges might 
 be at any time abolished, and even its corporate personality 
 destroyed. But under that provision of the Federal Consti- 
 tution, which forbids our legislatures to pass any law impair- 
 ing the obligation of contracts, it is now held, wisely or
 
 § 80 CORPORATIONS IN GENERAL. 89 
 
 unwisely as the event may prove, that where the charter of 
 a. corporation is granted by the State with the manifest ex- 
 pectation that it will be acted on by the corporation in such a 
 manner that its subsequent change or withdrawal would 
 prejudice the interests of the corporate body, and such action 
 accordingly takes place, an inviolable contract has been formed 
 between the corporation and the State that the corporation 
 shall continue to enjoy the privileges enumerated in its char- 
 ter so long as it does not neglect or abuse its powers, (b) This 
 doctrine does not, however, deprive a State of all authority 
 over its corporations. Corporations whose charters are not 
 contracts, either because they create no obligations of a con- 
 tract nature, or because contract charters had been previously 
 forbidden by the State constitution or its general laws, and 
 corporations whose charters contain provisions for their repeal 
 or modification at the discretion of future legislative bodies, 
 are entirely at the mercy of the State, and their charters may 
 be altered or recalled at its pleasure, (r) Charters which are 
 contracts can be amended and the privileges of the corpora- 
 tion be increased or diminished if the purposes for which it 
 was organized are not defeated and its power to accomplish 
 them is not curtailed, (d) Such limitations or extensions of 
 charter powers may be made by the legislature either by 
 alterations in the charter of the corporation, or by general 
 laws applying to all corporate bodies; but a charter issuing 
 from the legislature in the form of a special statute is not 
 affected by subsequent inconsistent legislation unless such is 
 the manifest intent of the later legislative body. (>■) The 
 franchises and other property of corporations, like the prop- 
 erty of a natural person, are always liable to be appropriated 
 by the State for public use whenever in the judgment of the 
 State such appropriation becomes necessary. (/) 
 
 Read (a) 62 1). 025. 
 
 (6) 4 Wheat. 518; 13 Wall. 190 (212-214). 
 
 (c) 90 D. 017. 
 
 00 50 1). 171; 128 U. S. 174. 
 
 (e) 53 1). 450, note ; 17 Wall. 425. 
 
 (/) 35 D. 166.
 
 90 AMERICAN JURISPRUDENCE, § 81 
 
 § 81. Of the Combination and Consolidation of Corporations. 
 
 The control of the State over its corporations extends to 
 changes in their personality as well as in their powers. It 
 may create a new corporate personality out of two or more 
 existing corporations by conferring upon them another char- 
 ter whereby the former corporations are made members of a 
 new corporation, preserving their distinct corporate person- 
 alities but collectively enjoying the privileges bestowed by 
 the new charter, or it may consolidate the former corporate 
 personalities into a new corporate personality in which the 
 former corporations are completely merged. Whether a 
 union of corporations produces the 'first or the second of these 
 results depends upon the agreement of the parties and the 
 terms of the legislative act by which it is effected, (a) In 
 the first (which, to distinguish it from the second, might be 
 called a "combination of corporations"), the members of the 
 new corporation are the old corporate bodies, not the natural 
 persons of whom those bodies are severally composed. These 
 still remain members of their respective corporations, and 
 only indirectly and through the acts of the corporations to 
 which they belong do they participate in the management of 
 the new corporation. The old corporations likewise retain 
 their ancient rights and are subject to their former liabilities, 
 except so far as these are expressly or by necessary implica- 
 tion varied by the combination charter. But in a consoli- 
 dation of corporations the old corporations disappear, and 
 their privileges and responsibilities, so far as they exist at all 
 under the new charter, are transferred to the new corporation, 
 of which also their members become members immediately 
 directing and controlling its affairs, (b) But exemptions from 
 taxation and other special immunities enjoyed by the old 
 corporations are not transmitted to the new unless expressly 
 granted to it by the legislature, (c) As the bestowal of a com- 
 bination charter does not affect the corporate franchises of the 
 individual corporations of which the combination is composed, 
 these individual corporations may or may not be domiciled 
 within the State by which the combination is created. In a 
 consolidation, however, the former corporate franchises are
 
 § 82 CORPORATIONS IN GENERAL. 91 
 
 withdrawn, and, as such withdrawal can be effected only by 
 the State which bestowed them, the recipients of a consolida- 
 tion charter must all be corporations of the State from which 
 the charter issues, or the new charter must be separately 
 granted by all the States to which these corporations may 
 belong, (d) A consolidation charter granted by two or more 
 independent States not only creates a franchise, but constitutes 
 a compact between the States themselves to recognize and 
 protect the charter privileges of the new corporation within 
 their respective jurisdictions, (e) Without the grant of a new 
 charter the union of the names, officers, enterprises, or prop- 
 erty of several corporations is a mere business arrangement 
 which neither affects their personality nor adds to nor dimin- 
 ishes their powers (/) ; for no corporate relation can be es- 
 tablished even between existing corporations without the 
 action of the State, whatever agreement the several corpora- 
 tions may have made between themselves, (g) Whether con- 
 solidation can take place without the unanimous consent of 
 all the members of the uniting corporations has been vari- 
 ously decided. (//) 
 
 Read (a) 92 U. S. G65 ; 114U. S. 587 (595) ; 152 U. S. 301. 
 (6) 98 U. S. 359; 79 I). 418, note; 95 U. S. 319; 39 
 St. 381 ; 59 St. 543, note; 95 D. 654. 
 
 (c) 96 U. S. 499; 117 U. S. 139. 
 
 (d) 12 Wall. 65 (82). 
 
 (e) 53 D. 534 (536). 
 (/) 136 U. S. 356. 
 
 (g) 35 St. 681 ; 101 U. S. 677 (701-703). 
 (A) 1 Wall. 25 ; 72 D. 685. 
 
 § 82. Of the Dissolution of Corporations. 
 
 The supreme exercise of legislative authority over a cor- 
 poration is its dissolution, (n) Every corporation receives 
 its existence from the State upon the condition that it will 
 use and not abuse its charter powers. No matter how largely 
 private interests may seem to be promoted by the grant of 
 i trporate franchises, the creation of these immortal and in-
 
 92 AMERICAN JURISPRUDENCE. § 83 
 
 tangible personalities is justified only by the assumption that 
 they do, to some extent, redound to the benefit of the public, 
 and this would be impossible if they did not act at all, or if 
 they acted in defiapce of the limitations prescribed by the 
 State at their incorporation. The failure of a corporation to 
 exercise its powers (b) is thus a breach of the fundamental 
 condition upon which they were granted equally with their 
 exercise in an unlawful manner or degree (<?) ; and in either 
 case the State may, if it pleases, treat the breach of condition 
 as a ground of forfeiture and repeal the grant. This is a 
 matter, however, entirely for the State, which must proceed 
 in its own name and through its own officers to dissolve the 
 corporation, though it may act at the instigation or relation of 
 private individuals whose rights are prejudiced by the corpor- 
 ate inaction or abuse, (d) According to the ancient rules of 
 our law, upon the dissolution of a corporation its real prop- 
 erty reverted to the donor or his heirs, its personal property 
 vested in the State, and its contract rights and obligations 
 were extinguished, (e) In equity it is now regarded as a 
 trustee for its beneficiaries or members, and after its dissolu- 
 tion new officers are appointed by the court to carry out the 
 trust and administer its assets for the benefit of those who 
 may appear to be entitled to them. (/) 
 
 Read 1 Bl. Com., pp. 484, 485; 2 Kent, Lect. xxxiii, pp. SOS- 
 SIS. 
 
 (a) 35 D 292 ; 33 D. 656 (660). 
 
 (b) 18 D. 454; 35 D. 551; 41 D. 109. 
 
 (c) 53 D. 106. 
 
 (d) 96 D. 747, note ; 41 D. 690; 94 D. 84. 
 (0 12 D. 234, note; 57 D. 168; 52 D. 412. 
 (/) 8 Pet. 281 ; 133 U. S. 50 ; 18 St. 192 (211). 
 
 § 83. Of the Distinction between the Personalities of a Cor- 
 poration and its Members. 
 
 The complete distinction between the person of a corpora- 
 tion and the persons of its members is evident from the fore- 
 going description of its character and attributes Its reason,
 
 § 84 CORPORATIONS IN GENERAL. 03 
 
 its will, its actions, are all separate from theirs. Its prop- 
 erty is not their property (a); its contracts are not their con- 
 tracts (b) ; its debts are not their debts, if they are not expressly 
 made so by its charter. Unless appointed by the corporation 
 as its agent, no knowledge which a member possesses, no act 
 which he performs, can be imputed to it as its act or knowl- 
 edge (c); and even were all its members to unite in an action, 
 such as the signing of a deed, the action would not be that of 
 the corporate body nor in any way affect its rights. As a 
 distinct person from its members it may sue them at law or 
 in equity, and they in turn may institute proceedings against 
 it to recover claims which they may hold against it or to 
 prevent it from violating its charter powers, (d) It can estop 
 itself by its own conduct or agreement from asserting its 
 privileges against particular individuals (e) ; but the motives 
 which impel it to perform its lawful acts are not open to 
 inquiry. (/) It is entitled under the Fourteenth Amendment 
 to the Federal Constitution to the protection of itself and its 
 property in all our States, and its identity remains unchanged, 
 notwithstanding any legislative increase or diminution of its 
 powers, until its personality is merged by the State in that 
 of a new corporation or its charter is formally repealed, (g) 
 
 Read (a) 140 U. S. 304 ; 13 St. 23 ; 34 St. 541. 
 
 (b) 13 Pet. 519 (586, 587). 
 
 (c) 36 D. 1S6. 
 
 (rf) IS How. 331 (341-344). 
 (0 10 Wall. 004(614-646). 
 (/) 105 U. S. 605. 
 (g) 125 U. S. 181 (187, 188). 
 
 § 84. Of Corporations De Jure. ■ 
 
 The foregoing rules are applicable to their full extent only 
 to perfect corporations, or, as they are technically called, cor- 
 porations de jure. A corporation de jure is one which has 
 been created and has duly organized in all respects in con- 
 formity to law. It presupposes that a charter has been
 
 94 AMERICAN JURISPRUDENCE. § 85 
 
 granted to the individuals of whom the corporation is com- 
 posed, that the governmental agency from which the charter 
 issued had the power to confer the precise corporate fran- 
 chise which it has attempted to bestow, that the members of 
 the corporate body have accepted the charter and have com- 
 plied with every requirement necessary to render their title to 
 the franchise indisputable and complete. Any defect in any 
 of these particulars prevents the association from attaining 
 and enjoying in their ordinary measure the prerogatives- 
 legally attached to corporate existence and leaves it in the 
 imperfect condition of a de facto corporation, a quasi corpora- 
 tion, or an association wholly unincorporated, (a) 
 
 Read 2 Kent, Lect. xxxiii, pp. 244-276. 
 (a) 42 St. 677. 
 
 § 85. Of Corporations De Facto. 
 
 A de facto corporation is an association of individuals to 
 whom the State has granted through some competent govern- 
 mental agency an apparently valid charter under which the 
 association has organized and acted as a corporation de jure, 
 but in whom, on account of some defect either in the charter 
 itself or in the mode of granting it, or in the method of its 
 acceptance by the association, or in their organization under it, 
 no indefeasible right to maintain and exercise their supposed 
 corporate privileges has ever legally been vested, (a) As 
 between the State and such an association no corporate fran- 
 chise exists, and their right to act as a corporate body may at 
 any time be called in question by the State and their exercise 
 of corporate privileges be prohibited. (b) But inasmuch as the 
 State could if it chose have created such a corporation and 
 could have endowed it with the powers named in its charter 
 and has evidently attempted so to do, and the members - in 
 their turn have endeavored to comply with its conditions and 
 acquire a perfect title to the franchise, #11 private parties are 
 warranted in assuming, until the State does interfere, that the 
 corporate character of the association is unassailable, and may 
 therefore deal with it as if it were a corporation de jure with-
 
 § 86 CORPORATIONS IN GENERAL. 95 
 
 out the risk that on account of its defective personality either 
 its acts or theirs will be declared invalid, (c) 
 
 Read (a) 47 St. 153, note; 41 St. 151: 38 St. 552. 
 
 (b) 33 St. 172, note. 
 
 (c) 29 St. 596, note ; 26 St. 743 ; 24 St. 887. 
 
 § 86. Of Quasi Corporations. 
 
 A quasi corporation is an association of individuals which, 
 although unincorporated, acts customarily or necessarily as a 
 unitary body, and which either by statute or by the doctrines 
 of the unwritten law is recognized as possessing, in reference 
 to these necessary or customary acts, the attributes of a true 
 corporation. Generally this recognition is extended by the 
 law only to associations to which some public interest or duty 
 has been committed, such as towns, counties, or school dis- 
 tricts, though the same character has sometimes been imputed 
 to more private organizations, such as religious congregations. 
 These associations possess no corporate personality in which 
 the individual personalities of their members have been merged. 
 On the contrary their members are held by certain courts to 
 be the ultimate parties to all transactions into which the asso- 
 ciation enters, and to be personally bound by all its obligations. 
 But since the association enjoys an immortality independent 
 of the changes in its membership, governs itself by majorities 
 and not by universal consent, transacts business only through 
 officers and agents, and has a common name in which it can 
 contract, or sue and be sued, or acquire, hold, and transfer 
 property, it has to a considerable extent a corporate aspect, 
 and when its unitary acts are authorized by statute or recog- 
 nized as valid by the courts, the corporate character of the 
 association is to a similar extent affirmed. Prior to the reign 
 of Henry VI. (a. i>. 1422) the minor political subdivisions 
 of England were usually regarded as quasi corporations, and 
 though since that date the practice of granting special muni- 
 cipal charters to these subdivisions has been gradually in- 
 creasing, both in England and this country instances still
 
 96 AMERICAN JURISPRUDENCE. §§ 87, 88 
 
 occur to which the law of these imperfect corporations is 
 applied, (a) 
 
 Read (a) 13 D. 522, note; 31 St. 63; 68 D. 290, note; 62 D. 
 424 (449). 
 
 § 87. Of Unincorporated Associations. 
 
 An unincorporated association is a group of individuals 
 united together for a common purpose but without a charter, 
 and to whom the law will not impute either an actual or qual- 
 ified corporate existence. These associations are, however, 
 fully recognized by the law as and for what they truly are, 
 though their precise legal character it is not in every case 
 easy to define. They possess some of the attributes of a part- 
 nership, some also of the features of a tenancy in common. 
 Their members can act together, not as a single personality 
 under the name of the association, but in the names of all 
 enumeratively or in the name of one "and his associates," 
 and in this manner they can purchase and sell property, make 
 contracts, and sue and be sued. But one has no implied 
 authority to bind the rest, and when appointed as the agent 
 of the association his acts oblige only himself and those other 
 members who concurred in his appointment or in the special 
 enterprise to promote which his appointment was made. The 
 liability of the members who participate in any transaction 
 of the association resulting in a debt due to a third party is 
 joint and several, and the whole amount may be collected out 
 of any one of them, leaving him to proceed against the others 
 for the payment of their shares, (a) 
 
 Read («) 12 D. 495, note ; 28 D. 650 ; 59 D. 708, note ; 95 D. 
 107 ; 50 R. 505 ; 52 R. 436 ; 39 R. 818 ; 59 St. 193, 
 
 note ; 68 St. 852, note. 
 
 § 88. Of the Classes of Corporations: Corporations Sole: Cor- 
 porations Aggregate. 
 The division of corporations into corporations sole and 
 corporations aggregate is based upon the number of natural
 
 § 89 CORPORATIONS IN GENERAL. 97 
 
 persons of whom the corporation is legally composed. A 
 corporation sole is constituted when a charter is granted to a 
 single individual; a corporation aggregate, when the grantee 
 is an association of two or more individuals. Corporations 
 sole, though common in England, rarely occur in this country. 
 They are usually created for official purposes, in order that 
 the powers and property connected with some public office may 
 pass without a new grant from one incumbent to his imme- 
 diate successor. But a State, unless prohibited by its Con- 
 stitution, may establish such corporations for commercial or 
 ecclesiastical as well as for political purposes, at its discre- 
 tion, (a) The legal character of a corporation aggregate is 
 not changed by the reduction of its membership to a single 
 individual, unless according to its charter the vanished mem- 
 bers were integral parts of the corporate personality, without 
 whom the corporation itself cannot exist. 
 
 Read 1 Bl. Com., pp. 469, 470; 2 Kent, Lect. xxxiii, pp. 273, 
 274. 
 (a) 33 D. 656. 
 
 § 89. Of the Classes of Corporations Public, Private, and Quasi 
 Public Corporations. 
 Corporations are divided, according to their essential char- 
 acter, into Public Corporations and Private Corporations. A 
 public corporation is a political body established by the State 
 for governmental purposes, and organizing the people inhab- 
 iting a certain portion of its territory under a subordinate 
 government exercising legislative, judicial, and executive 
 powers, in order that their laws may be suited to their local 
 conditions. A private corporation has no political character 
 and exercises no governmental functions except over its own 
 private affairs, but is created for the promotion of some 
 interest in which its members are directly or officially con- 
 cerned. A quasi public corporation is a private corporation 
 to which, on account of the value to tin- public of the enter- 
 prise in which it is engaged, certain privileges have been 
 •conceded which ordinarily vest only in the St.ttr or in the
 
 08 AMERICAN JURISPRUDENCE. § 90 
 
 public corporations to whom its governmental powers are 
 delegated. The rules to which these three classes of corpora- 
 tions are subjected differ in many important details, and 
 render necessary a more minute description of each class and 
 the particular statement of its laws, (a) 
 
 Read 2 Kent, Lect. xxxiii, pp. 274-276. 
 
 (a) 99 D. 300 (306, 307) ; 56 D. 666 (669). 
 
 SECTION II. 
 
 OF PRIVATE CORPORATIONS. 
 
 § 90. Of the Attributes of Private Corporations. 
 
 All corporate bodies except those which have been created 
 for political purposes as subordinate divisions and instru- 
 ments of the government are private corporations, whatever 
 be their character, their objects, or their privileges. It is to 
 this class of corporations that the general rules of corporation 
 law particularly apply. Their powers are limited to those 
 enumerated in their charters, which are strictly construed 
 against them in the light of the law as it existed when the 
 charters were granted. Their charters are in most cases con- 
 tracts which the State cannot impair by subsequent legisla- 
 tion unless it has reserved the right to do so, and must be 
 accepted by the corporation membership before they can take 
 effect. The power to enact by-laws, appoint officers, make 
 contracts, and hold property for the purposes indicated in 
 their charters, resides by implication in such corporations 
 where it is not expressed. They act within the corporate 
 body only by a majority vote, and without it only through 
 their officers and agents. They are liable for their torts com- 
 mitted through their agents (a), although involving mental 
 purpose and intent, and for such crimes as can be perpetrated 
 without actual violence, (b) They are subject to legislative 
 control, not infringing their charter rights, and their corporate 
 franchises as well as their property may be appropriated by 
 the State, either directly or through the agency of other cor- 
 porations. Finalty, their right to their charters may be for
 
 § 91 PRIVATE CORPORATIONS. 99 
 
 feited by the non-user or mis-user of their powers, and the 
 State may then repeal the charter and dissolve the corpora- 
 tion by due process of law. 
 
 Read (a) 13 D. 588, note ; 58 D. 439 ; 91 D. 672 ; 108 U. S. 
 317. 
 (ft) 37 D. 38-, 87 D. 391 ; 100 D. 570. 
 
 § 91. Of the Organization of Private Corporations. 
 
 A private corporation is formed by the voluntary agree- 
 ment of its future members to unite in an association for a 
 designated purpose, followed by their application to the State 
 in the customary manner for a charter, by its grant and their 
 acceptance, and by their organization under it as a corporate 
 body. Their acceptance of the charter and their organization 
 under it by framing by-laws and electing officers mark the 
 date when the existence of the corporate personality be- 
 gins, (a) Prior to that date their acts are those of an unin- 
 corporated association, or of independent individuals, and do 
 not bind the corporation unless adopted and ratified by it after 
 its organization is complete, (ft) Promoters of the enterprise, 
 whether becoming members of the corporation at its organi- 
 zation or not, are bound to good faith with it in all their 
 dealing, and promises to them obtained by fraudulent silence\ 
 or misrepresentation cannot be enforced, (c) In enacting by- 1 
 laws, the general law, the charter, and the purposes of the \ 
 corporation must be kept in view, and any reasonable by-law 
 consonant with these is binding on its members, (d) The usual \ 
 officers of a private corporation are a President. Secretary, 
 Treasurer, and a Board of Directors, whose duties are indi- 
 cated by their names and are further specified in the by-laws 
 under which they are appointed. The management of the cor- 
 porate affairs is mainly conducted by these officers; meetings 
 of the entire corporation being held at such intervals as the 
 law or convenience may determine, (c) The powers confided 
 to these officers are held and exercised by them, not for their 
 own benefit, but in trust for the corporation as a whole, and 
 any abuse of their authority may be restrained and remedied
 
 100 AMERICAN JURISPRUDENCE. §§ 92, 93 
 
 by the corporation either through its own action or through 
 the instrumentality of the courts. (/) 
 
 Read (a) 33 St. 355; 41 St. 451. 
 
 (b) 17 D. 159; 10 R. 587 ; 21 R. 39. 
 
 (c) 31 St. G53 ; 40 St. 837 ; 42 St. 159. 
 
 (tf) 43 St. 147, note; 6 U. 619 (625) ; 43 D. 457. 
 (e) 68 D. 544 ; 27 D. 33, note. 
 (/) 53 D. 624. 
 
 § 92. Of the Powers of Private Corporations. 
 
 The legal character and corporate capacity of a private 
 corporation being defined by its charter cannot be varied by 
 any other authority than that by which they were originally 
 conferred. Wherever the corporation may transact its busi- 
 ness through its officers and agents, it is there the same cor- 
 poration that it is in the place of its creation; and every 
 limitation of its powers by its charter, or by the general laws 
 of the State of its creation, follows it in every other State in 
 which its property or its interests reside, (a) By the laws of 
 such other States its rights may be more restricted than they 
 are in its domicile, but they cannot be enlarged. Hence no 
 concession by one State to the corporations of other States 
 can give them a corporate existence in its territory or make 
 their corporate action therein valid, although it may permit 
 their officers and agents to dwell within its borders and from 
 thence direct the management of its affairs, and may allow 
 the corporations to hold such lands or other property as their 
 corporate capacity authorizes them to acquire. 
 Read (a) 22 R. 133 ; 46 St. 285. 
 
 § 93. Of Eleemosynary Corporations. 
 
 Private corporations are divisible into Civil Corporations 
 and Eleemosynary Corporations. A civil corporation is 
 established for the benefit of its own members or for the pro- 
 motion of a cause in which both its own members and other 
 persons are interested. An eleemosynary corporation exists
 
 § 93 PRIVATE CORPORATIONS. 101 
 
 exclusively for charitable purposes ; that is, for purposes con- 
 ducive to the bodily, intellectual, or spiritual welfare of its 
 beneficiaries. Hospitals, asylums, free schools, missionary 
 societies, are instances of these ; but not parishes, nor colleges 
 supported by tuition fees, nor private sanitariums, (a) In el- 
 eemosynary corporations, and in those created for the promo- 
 tion of a cause, the corporation, in addition to the laws which 
 govern it as a corporate body, becomes subject also to the law 
 of trusts, (b) The powers and the property of such corpora- 
 tions are vested in them for the sake and in the right of the 
 beneficial enterprise, and the corporation is compelled to hold 
 and use them for such purposes and for such purposes alone. 
 Thus, for example, a religious society established and endowed 
 with property for the propagation of certain doctrines, or as a 
 branch of a larger religious body, cannot employ its property 
 or corporate privileges in the promulgation of different doc- 
 trines nor sever its connection with the larger body though all 
 its members have changed their belief and desire to alter their 
 ecclesiastical affiliations, (c) An eleemosynary corporation, 
 founded and supplied by its projectors with funds for the sup- 
 port of orphans or the insane or paupers, or for the healing 
 and care of the sick, or other charitable objects, violates its 
 trust by any application of its means to other purposes besides 
 exceeding its specific charter powers. To keep such corpora- 
 tions within the limits prescribed by their founders, a board 
 of visitors is sometimes appointed by their charters, who have 
 authority to correct abuses whenever they arise(W), and at all 
 times the courts of equity are open to the proper beneficiaries 
 of such a corporation, who have reason to complain of the 
 management of its affairs, and can take any steps that may be 
 necessary to prevent a further perversion of its funds, (e) 
 
 Read 1 Bl. Com., pp. 470, 171, 480-484. 
 
 (a) 1 Wheat. 518 (629, 038); 31 D. 72 (80-91); 6 St 
 
 715. 
 
 (b) 07 D. 100. 
 
 (c) 13 Wall. 070 (722-732). 
 (</) 29 D. oft 1. 
 
 (e) 84 D. 170.
 
 102 AMERICAN JURISPRUDENCE. §§ 94, 95 
 
 § 94. Of Civil Corporations. 
 
 A corporation created for the exclusive benefit of its mem- 
 bers may have in view their intellectual, moral, social, phys- 
 ical, or pecuniary interests, or any other matter conducive to 
 their welfare or their pleasure and not forbidden by the law. 
 The details of such corporations — their organization, by-laws, 
 officers, property, and methods of operation — conform to 
 their particular objects and consequently are of great variety. 
 What has been already stated as to the general law of corpor- 
 ations embraces, in principle at least, the body of legal rules 
 by which all Of them are governed, with the exception of that 
 class of business corporations known as "stock corporations," 
 of which a more extended description is required. 
 
 § 95. Of Stock Corporations. 
 
 A stock corporation is intended to enable a number of per- 
 sons to unite their money in a business enterprise in which 
 they incur no liability beyond their investment and from 
 which they can at any time retire by the transfer of their in- 
 terests to other persons. In its combination of persons and 
 property it resembles a partnership, but in its restriction of 
 their liability for its debts and their power to substitute other 
 persons for themselves as members of the association, it is 
 entirely different. The mode of its formation is usually as 
 follows: Its projectors having determined the amount of cap- 
 ital required for the transaction of the contemplated business 
 and fixed the value of the equal shares into which it is to be 
 divided, subscribe for such a number of these shares as they 
 individually desire until the whole are taken, the payment 
 for which they make in advance or agree to make to the cor- 
 poration whenever called upon in pursuance of its charter and 
 by-laws. Unless a charter has been already granted to the 
 proposed corporation one is now obtained, and the corporation 
 organizes under it by enacting by-laws and appointing officers. 
 Upon the completion of its organization the subscriptions to 
 its stock, which hitherto have been contingent and could be 
 withdrawn, become vested rights, and it may call upon its
 
 § 96 PRIVATE CORPORATIONS. 103 
 
 members for the price of their respective shares with which 
 to commence its business, and may collect the amounts by suit 
 at law or by a forfeiture and sale of the shares, (a) If the 
 business is profitable, a dividend of the profits is declared, 
 from time to time, in favor of each share, and paid to the 
 stockholder to whom the share may then belong (b), and 
 should the corporation cease its business and wind up its 
 affairs, the surplus of its property remaining after the pay- 
 ment of its debts is divided among the then existing stock- 
 holders according to the number of shares of stock which 
 each may then possess. During the existence of the corpo- 
 ration any stockholder may sell the whole or any number of 
 his shares to any other person, who by the transfer takes 
 the place of the vendor in the corporation and succeeds to 
 all his rights and liabilities. 
 
 Read (a) 5 D. 638; 8 D. 128; 60 D. 257; 42 St. 379} 47 St. 
 
 323 ; 44 St. 838. 
 (b) 99 D. 758, note; 153 U. S. 486 (496-499). 
 
 § 96. Of Shares ot Stock. 
 
 This outline of the history of a stock corporation explains 
 the legal character of a share of stock and its relations to the 
 corporate property and business. A share of stock is not a 
 share in the property owned by the corporation, for in these 
 corporations, as in all others, the personality, rights, obliga- 
 tions, and property of the corporation are entirely distinct 
 from those of its members. A share of stock is a chose in 
 action; that is, it is a right to a thing as distinguished from 
 tin' thing itself, and the things to which a share of stock 
 is the right are, first a specific proportion of the profits of 
 the corporate business; second, a specific proportion of the 
 surplus property of the corporation after it ceases to exist and 
 its debts arc paid; and third, the right to exercise a degree of 
 influence in the general direction of corporate affairs measured 
 by the ratio which one share bears to the whole number of 
 shares, (a) But the ownership of a share of stock does not 
 entitle the owner to participate directly in the current man
 
 104 AMERICAN JURISPRUDENCE. § 97 
 
 ageraent of the corporate business. This is intrusted to the 
 board of directors or other officers, in whose election every 
 stockholder has a voice, but with whom after their appoint- 
 ment no stockholder has a right to interfere unless they act 
 in violation of the charter or squander the assets of the cor- 
 poration, in which event any stockholder may invoke the 
 protection of a court of equity, if the corporation as a whole 
 refuses to act in his defence, (b) For the corporation is a trus- 
 tee for its stockholders and owes them the duty not only of 
 promoting their interests by the wise conduct of its affairs, 
 but of preserving them from injury and loss at the hands of 
 its own officers and agents; and its persistent refusal to dis- 
 charge this duty may result in the transfer of its management 
 to a receiver under the supervision of a court of equity and 
 in the final winding up of the corporate enterprise, (c) 
 
 Read («) 42 St. 17 ? 3 St. 586 (591, 592). 
 
 (6) 46 D. 690; 76 D. 508, note; 65 D. 557. 
 (c) 53 D. 624, note ; 66 D. 490. 
 
 § 97. Of the Liabilities of Stockholders. 
 
 The obligations of a stockholder to the corporation and in- 
 directly to its creditors are measured by the contract into 
 which he enters by his subscription for his shares of stock. 
 As between himself and the corporation his obligations are 
 fulfilled if he pays for his stock in the property, time, manner, 
 and amount which his agreement with the corporation or its 
 other projectors requires, whether the payment equals the 
 nominal value of the stock or not. (a) But as between himself 
 and the creditors of the corporation who have done business 
 with it in good faith on the assumption that the nominal value 
 of the stock was payable in full as the progress of the busi- 
 ness might demand, — an assumption that any creditor has 
 the right to make unless he has some notice to the contrary, 
 — the stockholder may be compelled to pay the full value of 
 his shares in spite of any promise or release which the corpor- 
 ation may have previously given him. (b) Whenever neces- 
 sary a court of equity will force the corporation to collect the
 
 § 98 PRIVATE CORPORATIONS. 105 
 
 unpaid balance for its shares from their respective holders, 
 according to their nominal value, and use the proceeds for the 
 payment of its debts (c) ; and if the corporation does, not or 
 cannot act, a receiver may be appointed with similar powers, 
 or the creditors collectively, or one in the name of all, may 
 sue the delinquent stockholders for the amounts still remain- 
 ing due. (d) But when the stockholde r has once, in good faith, 
 paid the full nominal value of his stock in money, or, if the 
 charter allows it, in property available for the use of the 
 corporation, his obligations are fulfilled, and, in the absence 
 of a statute rendering him still further liable, he is discharged 
 from all responsibility whether to the corporation or its 
 creditors, (e) 
 
 Read (a) 119 U. S. 343 ; 45 St. 133; 45 St. 700. 
 
 (b) 144 U. S. 104 (113, 114) ; 91 U. S. 56 ; 105 U. S. 143. 
 
 (c) 139 U. S. 118; 100 D. 546, note; 52 D. 412; 150 
 
 U. S. 371; 51 R. 166; 57 St. 60, note. 
 
 (d) 101 U. S. 205; 99 U. S. 628; 26 St. 639; 139 U. S. 
 
 417; 137 U. S. 366: 21 St. 798. 
 
 (e) 101 U. S. 216; 43 D. 685, note; 49 D. 2S6, note; 99 
 
 D. 427, note; 3 St. 797, note. 
 
 § 98. Of the Ownership and Transfer of Stock. 
 
 Any person, natural or artificial, ma}- be the owner of 
 shares of stock in a stock corporation, (a) The corporation 
 itself may hold a part of its own shares, and in the inception 
 of a corporate enterprise this often happens, where not all the 
 shares are taken by the projectors on their own account, but 
 some are vested in the corporate body for future disposition. (b) 
 The State may also own stock in private corporations, but 
 when it does so it is as a corporate body not as sovereign, (c) 
 In substituting other owners for himself by the transfer of his 
 stock, a stockholder must observe the rules prescribed by the 
 corporation, and the purchaser will take the stock subject to 
 such rules and to any lien for unpaid subscriptions, and to any 
 other equitable rights which the corporation may possess 
 against the formei owner. (</i All shares of stock are now re-
 
 106 AMERICAN JURISPRUDENCE. § 99 
 
 garded as personal property, although the property of the 
 corporation may be real, and a transfer on the books of the 
 corporation or by indorsing the certificate of stock, without a 
 deed, is legally sufficient, (e) 
 
 Read (a) 13 St. 500 (603, 604) ; 36 St. 130, note. 
 
 (b) 33 St. 331, note. 
 
 (c) 9 Wheat. 904 (907, 908) ; 11 Pet. 257 (323-327). 
 
 (d) 11 D. 575, note. 
 
 (e) 19 I). 306; 57 St. 373, note. 
 
 § 99. Of the Rights and Liabilities of Stockholders in Refer- 
 ence to Outside Parties. 
 Although the stockholders as such have no direct partici- 
 pation in the current management of the corporate business, 
 yet they are not without power to protect their interests 
 against outside parties as well as against the corporation 
 itself, (a) In extreme cases, where the corporation will not 
 or cannot institute proceedings in its own behalf, the stock- 
 holders collectively, or one in the name of himself and all the 
 rest, may bring the suit, making the corporation a party to 
 the action ; and in this manner they may follow perverted 
 funds wherever they can reach them, or assert its rights to 
 property in the hands of adverse claimants, (b) Stockholders, 
 so far as their own stock is concerned, are also bound by all 
 proceedings against the corporation on the part of others, (e) 
 The holders of new stock issued by the corporation under 
 legal authority during the progress of its business occupy the 
 same position in all these respects as the subscribing owners 
 and transferees of the original shares. 
 
 Read (a) 90 D. 617; 22 D. 7S5 ; 84 D. 134. 
 
 (b) 18 Wall. 626; 149 U. S. 473. 
 
 (c) 131 U. S. 319.
 
 §§ 100, 101 QUASI PUBLIC CORPORATIONS. 107 
 
 SECTION III. 
 
 OF QUASI PUBLIC CORPORATION'S. 
 
 § 100. Of the Peculiar Franchises of Quasi Public Corporations. 
 (Jurist Public Corporations are private corporations, and 
 ordinarily stock corporations, upon which in view of their 
 importance to the public certain true franchises are conferred 
 in addition to the corporate franchise, (a) These franchises 
 are bestowed upon the corporation, not as a reward for public 
 service, but solely as a means by which it may be enabled to 
 render service to the public, and the language in which they 
 are enumerated in the charter must be so construed as to re- 
 strict their application to the public needs, (b) These fran- 
 chises are of various species, but the principal ones are 
 (1) the right to occupy public property; (2) the right of emi- 
 nent domain; (3) the right to a monopoly; and (4) the right 
 to take tolls. 
 
 Read (a) 99 D. 300. 
 
 (6) 10 Wall. 694. 
 
 § 101. Of the Right to Occupy Public Property. 
 
 The right to occupy public property is sometimes vested in 
 a private corporation in order that the property may be better 
 adapted and applied to public use. Thus, for example, a 
 public river may be placed under the control of a navigation- 
 improvement company, who expend their capital and energies 
 in removing obstacles, maintaining wharves, buoys, lights, 
 and means of transportation, and receive their recompense 
 through the exclusive use of the river for their own boats or 
 from the fees paid lor their passage by the owners of other 
 vessels, (a) The appropriation of a public highway to a turn- 
 pike company, or to corporations owning and operating street 
 railways, telegraphs or telephones, gas or water works, or 
 similar enterprises, are other instances of the enjoyment of 
 this valuable franchise. (/>) 
 
 Read (a) 25 D. :J(3; :5S R. 222. 
 
 (A) 91 1). si : 69 D. 651, note.
 
 108 AMERICAN JURISPRUDENCE. §§ 102, 103 
 
 § 102. Of the Right of Eminent Domain. 
 
 The right of eminent domain is the right to take private 
 property for public use. Under the laws of this country this 
 right cannot be exercised even by the State without payment 
 of due compensation to the owner of the property, but the 
 right is none the less a true franchise since no private person 
 can compel others to part with their property against their 
 will, whatever compensation he may be prepared to make 
 them. Still, without this right many corporate enterprises 
 would be impracticable, and where the public welfare requires 
 the facilities which such enterprises would furnish the State 
 can confer this right upon any private corporation by whom 
 the enterprise may be conducted. The right given to rail- 
 road corporations to take any land required for their road- 
 bed or buildings upon payment of its value to the owner is 
 the most familiar form of this franchise, but it embraces all 
 other such appropriations, whether the property taken be lands 
 or goods or incorporeal rights, or even franchises possessed 
 by other corporations, (a) The imposition of taxes by the 
 State upon its people in aid of quasi public corporations has 
 sometimes been held justifiable on similar grounds, (b) 
 
 Read Cooley, Const. Lim., Ch. xv; Cooley, C. Law, Ch. xvi, 
 
 pp. 363-377. 
 (a) 22 D. 679, note ; 40 D. 705 ; 55 D. 266, note ; 69 D. 
 
 389 (391, 392). 
 (6) 16 Wall. 678; 56 D. 522, note. 
 
 § 103. Of the Right to a Monopoly. 
 
 The right to a monopoly is the right to exclude all other 
 persons from participating in some common privilege which 
 the monopolist enjoys. The power of the sovereign to exer- 
 cise, or to grant this right is limited, by the principles of 
 modern law, to cases in which the public will derive a greater 
 benefit from the concentration of the privilege in one person 
 than from its diffusion among many. This right is a true 
 franchise because no private person can prevent other persons 
 from sharing with him that which by nature or by the ordi-
 
 § 104 QUASI PUBLIC COKPORATIONS. 109 
 
 nary rules of law is common to all, while the State for its 
 own welfare can restrict the ownership and use of property to 
 any extent it may deem necessary. The grant of a monopoly 
 is never presumed, but must be clearly expressed or implied 
 in the act of the sovereign, though when granted it will be 
 protected and enforced by law. Monopolies are bestowed on 
 private corporations to induce them to embark in public 
 enterprises which would not be undertaken were the business 
 of the corporation to be open to competition, such as water 
 or lighting companies, street or steam railways, ferries or 
 bridges; and when conferred in their charter are a part of 
 their contract with the State which cannot be impaired by 
 subsequent legislation unless the power to do so was definitely 
 reserved, (a) 
 
 Read (a) 36 D. 202; 44 D. S3; 65 D. 535; 42 D. 716. 
 
 § 104. Of the Right to Take Tolls. 
 
 The right to take tolls is the right to exact a specific fee 
 or reward for a service rendered, irrespective of the value of 
 the service or of any contract between the parties. In all 
 ordinary cases of service the price to be paid is fixed either 
 by the agreement of the parties or by the benefit of the ser- 
 vice to one, or by its cost in time, money, or energy to the 
 other. But in many instances of service rendered to the gen- 
 eral public or to a large number of individuals the making 
 of such agreements or the estimate of benefit and cost would 
 be impracticable, and here the State, as a condition of the 
 privilege of rendering the service and receiving payment for 
 the same, arbitrarily, though with due regard to all the cir- 
 cumstances, establishes the price and imposes it upon every 
 person who accepts the service. This arbitrary price is called 
 "a toll," and the right to collect it is usually embraced within 
 the franchises conferred on railroad, turnpike, ferry, and canal 
 companies, and other corporations occupying a similar rela- 
 tion to the public, («) 
 
 Read (a) 39 D. 77S ; 40 D. .740 (741, 742, 717) ; 18 R. 345.
 
 110 AMERICAN JURISPRUDENCE. §§ 105, 106 
 
 § 105. Of the Control of the State over Quasi Public Corpora- 
 tions. 
 
 A quasi public corporation, by virtue of the foregoing 
 franchises, is brought into a more immediate connection with 
 the State than other private corporations, and is subject to 
 more frequent legislative interference. Often also it is placed 
 under the general supervision of commissioners appointed by 
 the State and is obliged to conduct its public business accord- 
 ing to their directions, (a) But neither of these incidents 
 changes its essential character as a private corporation, nor 
 can the State, either through its commissioners or its legis- 
 lative body, carry its interference to a degree which thwarts 
 the purposes for which the corporation was created or im- 
 pairs the privileges conferred upon it by its charter, (b) 
 
 Read (a) 15 St. 460, note; y4 U. S. 155. 
 (b) 62 St. 261, note. 
 
 SECTION rv. 
 
 OF PUBLIC CORPORATIONS. 
 
 § 106. Of the Nature and Powers of Public Corporations. 
 
 Public corporations or, as they are now commonly called, 
 "municipal corporations," are not mere representatives or 
 agents of the State, but are integral parts of its governmental 
 organization, exercising a subordinate and delegated sover- \ 
 eignty over a limited area of contiguous territory and over 
 the persons who either permanently or temporarily are 
 present in it.(r/) The principal classes of these corporations 
 now known in this country are counties, cities, townships, 
 and boroughs. They are created by the State at its discre- 
 tion and usually by a legislative act conferring on the terri- 
 tory and population a distinct corporate existence; though 
 where communities have long enjoyed municipal prerogatives 
 without a formal charter the grant and loss of such a charter 
 may be judicially presumed, or by the legislative recognition 
 of the community as a true public corporation it may be as
 
 106 PUBLIC OR MUNICIPAL CORPORATIONS. Ill 
 
 
 ■<*»> 
 
 effectually established as if it had originally been organized 
 by State authority, (b) The public powers attached to a mu- 
 nicipal corporation are also determined by the State. They 
 include not only the powers expressly enumerated in its 
 charter, but whatever incidental powers may become necessary 
 in order to carry those which arc expressed into complete ef- 
 fect, (c) In addition to these public powers it may be clothed 
 with rights of a more private character, enabling it to deal 
 with its own people or with outside parties like any other 
 private corporation, (d) The express public powers of a muni- 
 cipal corporation generally embrace the c ontro l oyer streets. 
 sewers, health, education, police and fire ^departments, water 
 and light supply, markets, paupers, hospitals, cemeteries, and 
 such other kind red ent erprises as the legislature may commit 
 to its direction. Its incidental powers comprise the power to 
 make contracts, the power to acquire and hold property, the 
 power to borrow money and issue bonds or other acknowledg- 
 ments, the power to impose and collect taxes, and the power 
 to incur debts. Its power to make contracts is limited by its 
 charter and the nature of the public purposes to which the 
 contracts are related, and its agreements ultra vires cannot be 
 enforced, (e) The property which it acquires for public pur- 
 poses is public property, is held by it in trust for its citizens, 
 and cannot be taken in execution for its debts nor taxed nor 
 otherwise interfered with except by the State. (/) Its power 
 to borrow money on its bonds does not include the power to 
 issue commercial paper, vesting in the bona fide holder a right 
 to the amount of its apparent value free from all equities on 
 behalf of the municipality, but its actual emission of the 
 bonds together with their lawfulness every purchaser at his 
 own risk must ascertain, (y) Its taxing power extends to all 
 private property within its territorial boundaries, and may be 
 exerted at any time for the payment of its obligations either 
 voluntarily or under a mandamus from the courts at the in- 
 stance of its creditors, (h) Its power to incur debts for its 
 lawful purposes is without limit unless it is restrained by the 
 provisions of its charter or the general law (/). but where its 
 extravagance is manifest and taxpayers have no other redress,
 
 112 AMERICAN JURISPRUDENCE. § 107 
 
 a court of equity may, on their petition, enjoin the officers of 
 the corporation from a further waste of funds, (j) 
 
 Read Cooley, C. Law, Ch. xvii, pp. 378-380. 
 
 (a) 69 D. 565 (577) ; 40 St. 109 (115, 116) ; 36 R. 840. 
 
 (b) 170 U. S. 304 ; 69 D. 489 ; 133 U. S. 198 ; 12 Wheat. 
 
 64 (70-76). 
 
 (c) 108 U. S. 110 ; 30 St. 214, note. 
 
 (d) 35 St. 515, note; 72 D. 730 (735, 736). 
 
 (e) 36 St. 88; 2 Black, 722. 
 
 (/) 99 U. S. 149; 88 D. 248, note; 40 St. 109; 17 Wall. 
 
 322 ; 9 How. 172. 
 (g) 30 D. 185, note; 19 Wall. 468; 121 U. S. 615; 145 
 
 U. S. 135. 
 (h) 98 U. S. 381 ; 66 D. 627 ; 102 U. S. 472. 
 (0 44 St. 222, note; 45 St. 252, note. 
 (J) 2 St. 85, note. 
 
 § 107. Of the Legislative Powers of Public Corporations. 
 
 The public powers of a municipal corporation are either 
 Legislative or Administrative. In the exercise of its legisla- 
 tive powers it may enact by-laws or " ordinances " which, when 
 valid, are of the same force as the statutes of the State 
 itself, (a) The validity of such ordinances depends upon their 
 conformity to the general law, to the charter of the corpor- 
 ation, and to those fundamental principles of reason and jus- 
 tice which every government is obliged to respect. Thus 
 ordinances derogating from the rules already adopted by the 
 State, as where they change the legal character of criminal 
 acts which the State has previously defined (b), or exempting 
 individuals from liabilities imposed upon them by the 
 State (c), or unnecessarily restricting personal liberty (d), are 
 void. But ordinances are not invalid simply because they are 
 burdensome to the inhabitants, nor can the private motives 
 of the municipal legislators in prescribing them be made the 
 subject of investigation, (e) The authority of valid by-laws 
 extends to strangers passing through the territory of the cor- 
 poration (/), and may in certain cases reach beyond its limits 
 where their enforcement within its territory cannot otherwise
 
 § 108 PUBLIC OR MUNICIPAL CORPORATIONS. 113 
 
 be effected, (g) The legislative power of a municipal corpo- 
 ration inheres not in itself but in the State whose delegate 
 it is, and though the ordinances in which it results may be 
 declared invalid by the courts, they have no right to antici- 
 pate that it will make invalid laws and interfere on that ac- 
 count with its intended exercise of legislative power. (Ji) Nor 
 can one legislative act of the municipality forestall its future 
 legislative action and deprive it of that freedom which every 
 legislative body necessarily enjoys to disregard, repeal, or 
 modify its own enactments at its pleasure, (i) 
 
 Read Cooley, Const. Lira., Ch. viii. 
 
 (a) 19 St. 490; 34 D. 625, note; 36 D. 441. 
 (6) 68 D. 452. 
 
 (c) 29 St. 750. 
 
 (d) 6 St. 310 ; 16 St. 573. 
 
 (e) 113 U. S. 27; 113 U. S. 703 ; 92 D. 73, note. 
 (/)17D.351. 
 
 (g) 16 D. 189, note. 
 
 (h) 36 St. 438 ; 41 St. 248. 
 
 (t) 47 St. 258. 
 
 § 108. Of the Administrative Powers of Public Corporations. 
 The administrative powers of a public corporation are 
 either Judicial or Ministerial. Its judicial powers are exer- 
 cised in determining~suc1r matters as by the general law, the 
 express or implied powers of its charter, or the essential nature 
 of things, are left to its discretion. Its ministerial powers 
 are exercised in carrying into practical effect the decisions at 
 which it judicially arrives, or in performing duties directly 
 imposed upon it by the State. The line between these is not 
 always easy to draw, since every ministerial act in which the 
 reason and will of the actor are employed demands to some 
 extent the exercise of judgment; but the distinction is well 
 recognized in law, and in most instances presents no insuper- 
 able difficulty. The judicial powers of a municipal corpo- 
 ration are applied chiefly in deciding whether or not an act 
 which is within its discretion shall be performed, and if so, 
 in what mode, if several lawful modes there be. But having 
 
 8
 
 114 AMERICAN JURISPRUDENCE. § 109 
 
 once decided that the act shall be performed, and selected the 
 lawful mode in which it shall be done, the performance of 
 the act according to that mode involves only its ministerial 
 powers, which are controlled, as to the method of their exer- 
 cise, not by municipal discretion, but by the ordinary legal 
 requirement of proper care and skill. The principal cases in 
 which this distinction becomes important are those arising 
 out of injuries to third parties as a consequence of municipal 
 action, and as to these the same rules are observed as in 
 reference to other public official acts. For injuries resulting 
 from the exercise of its judicial powers the corporation is not 
 liable (a); for those which it occasions by its ministerial 
 action it is responsible like any private individual, (b) 
 
 Read (a) 55 D. 347, note ; 22 R. 507 ; 47 St. 596, note. 
 
 (6) 89 D. 450; 94 D. 461 ; 6 St. 256 ; 10 St. 35; 36 St. 
 438, note ; 27 D. 95 ; 9 How. 248 ; 15 St. 840, note; 
 32 D. 730. 
 
 § 109. Of the Liability of Public Corporations in Reference to 
 Streets, Sewers, Bridges, etc. 
 Instances of the application of these rules to municipal cor- 
 porations by the courts have related chiefly to injuries occa- 
 sioned by the construction or condition of streets, sewers, or 
 bridges, the maintenance and operation of police and fire 
 departments, and the exercise of its police powers for the 
 protection of the public health and safety. "Whether or not 
 a new street shall be opened or an existing street be widened 
 or graded are questions of discretion only, and no liability 
 attaches to the municipality for any consequences which may 
 follow from the opening of the street in that locality, or from 
 the extension of its width, or the raising or lowering of its 
 grade, (a) But if in opening the new street, or broadening or 
 changing the elevation of an old one, the work is so improp- 
 erly performed according to the ordinary standards of care 
 and skill, or if the street itself, after it is completed, is 
 suffered to become and remain out of repair, and damage 
 is thereby occasioned to third parties, the municipality is
 
 § 110 PUBLIC OR MUNICIPAL CORPORATIONS. 115 
 
 liable, (b) Whether any and what portions of the territory of 
 the corporation shall be sewered and upon what general plan 
 the sewers shall be erected (c), whether and how public bridges 
 shall be built (d), whether police or fire> departments shall be 
 maintained, and, if so, upon what scale of equipment and 
 official numbers (e), what measures shall be taken to prevent 
 the spread of disease or to remove public nuisances (/), are 
 likewise matters of discretion upon which the municipality is 
 free to act without responsibility to those who may be preju- 
 diced by its decision; but in carrying its decisions into effect 
 it becomes accountable for any failure on its part to exercise 
 that measure of capability and caution which the law requires 
 of other individuals. 
 
 Read Cooley, Const. Litn., Ch. xvi. 
 
 (a) 43 1). 719; 49 1). 412; 30 St. 832, note ; 20 How. 635. 
 
 (b) 29 St. 758, note; 31 St. 839, note; 63 D. 345, note ; 
 
 83 D. 557, note ; 17 St. 732, note ; 45 St. 853, note ; 
 2 Black, 418. 
 
 (c) 78 1). 342; 53 D. 316, note; 55 D. 347; 24 R. 552, 
 
 note ; 29 St. 730, note. 
 (tl) 99 U. S. 635. 
 (e) 2 R. 368. 
 (/) 92 1). 73, note; 115 U. S. 650; 152 U. S. 133; 171 
 
 U. S. 1 ; 17 St. 696 (69S) ; 35 St. 152 (155-157); 
 
 47 St. 525, note. 
 
 § 110. Of the Liability of Public Corporations for the Con- 
 duct of their Officers and Agents. 
 Municipal corporations, like other bodies corporate, can act 
 only by majority vote or through their lawfully appointed or 
 adopted officers and agents. The official personages connected 
 with municipal corporations are divisible into three classes: 
 (1) Agents of the corporation in its private capacity; (2) 
 Agents of the corporation in its public capacity; (3) Public 
 officers. The first class are appointed by the corporation to 
 transact its business as a private corporation, when such a 
 corporate character has been impressed upon it by its charter. 
 For their acts and defaults the municipality is responsible in
 
 116 AMERICAN JURISPRUDENCE. § 111 
 
 the same degree as if it possessed no public character or prop- 
 erty or powers, (a) The second class are employed by the cor- 
 poration to act on its behalf as a public corporation, and their 
 acts bind it so far as they do not exceed its charter powers or 
 the scope of the specific agency to which they have been 
 appointed, (b) The third class, though sometimes designated 
 and paid by the municipality and performing their official 
 duties within its territory and in relation to its people, are 
 not its agents, but officers of the State, and by their acts and 
 omissions, of whatever character, the corporation incurs no 
 liability. To this class belong policemen, firemen, health- 
 officers, and all other functionaries who, though connected 
 with the corporation and using the instrumentalities which it 
 supplies, are really exercising the sovereign powers of the 
 State itself for the protection of the persons and property of 
 its citizens, (c) Their acts are acts of the State, not of the 
 corporation, and being public acts of public officers an injury 
 resulting from them is not a legal injury, nor entitled to re- 
 dress, unless the acts have been corruptly or maliciously 
 performed, (d) 
 
 Read (a) 38 D. 669, note; 45 St. 114. 
 
 (b) 34 St. 17, note. 
 
 (c) 30 St. 373, note; 46 St. 760; 79 D. 721; 33 R. 154; 
 
 6 R. 196; 9 R. 382; 48 R. 762. 
 
 (d) 82 D. 556. 
 
 § 111. Of the Control of the State over its Public Corporations. 
 
 The authority of the State over its public corporations is 
 unlimited, except by its own Constitution and the funda- 
 mental principles of law. Their charters are amendable and 
 repealable at its pleasure. It may combine or divide them 
 as it deems expedient, and correspondingly distribute or con- 
 solidate their rights and liabilities, (a) It may ratify their 
 unauthorized actions and so make them valid. It may recog- 
 nize a de facto corporation as duly clothed with charter powers 
 and thereby make it thenceforth a corporation de jure, (b) 
 No acceptance of its original charter or of any subsequent 
 amendments to it by the corporation is necessary to render them
 
 § 112 PUBLIC OR MUNICIPAL CORPORATIONS. 117 
 
 effectual, nor have its members any legal right to complain 
 of any change which the State may make in their corporate 
 character or powers. But while the State can thus create and 
 fashion and extinguish the corporate personality, it cannot 
 force it to perform acts prejudicial to its members or sub- 
 versive of the vested rights of others. It cannot compel it to 
 plunge into debt for public improvements, or to pay salaries 
 which exhaust its resources, or to impose excessive and 
 destructive taxes, or to violate its obligations toward its 
 creditors, (c) 
 
 Read (a) 67 D. 748 ; 24 R. 661 ; 100 U. S. 514 ; 35 St. 515, note. 
 (Jb) 7 Wall. 1. 
 (c) 116 U. S. 289. 
 
 § 112. Of the State as a Corporation. 
 
 The State has many of the attributes of personality, and, 
 not being in any sense a natural person, is often called a cor- 
 poration, though not, of course, created directly by the law. 
 Its powers are inherent not conferred, and are, like those 
 of public corporations, either public or private. Its public 
 powers are not franchises but elements of its sovereign pre- 
 rogative, (ft) Its private powers are co-extensive with the 
 requirements of its condition, and in their exercise it assumes 
 the character of a private person, and is bound by its own laws 
 like any individual citizen. (I>) In this capacity it may make 
 contracts, acquire, hold, and convey property, employ agents, 
 and sue at law or in equity for the violation of its rights, (c) 
 It cannot, however, be sued in its own courts without its 
 special consent, (d) These rules apply equally to the several 
 States of tlic American Union and to the United States. 
 
 Read Holland, Cli. xvi. pp 310-342. 
 (a) 78 1). -"'71 : 8 St. 744. 
 (6) 94 1>. 635 : 7 Wall. 866. 
 (c) 11 How. 229. 
 (</) 12 D. 516, note: 18 D. 194, note ; 41 D. 549 (552, 
 
 553); 63 D. 130; 10 St. 712; 22 St. 624, note; 
 
 106 U. S. 196.
 
 118 AMERICAN JURISPRUDENCE. §§ 113, 114 
 
 CHAPTER IV. 
 
 OF THINGS. 
 
 § 113. Of the Nature of Things. 
 
 A thing is a being devoid of personality. Every object of 
 which the law can take cognizance, and which is not a 
 natural or artificial person, is embraced within this definition 
 and is known as a thing. Persons also, wheu deprived tem- 
 porarily or permanently of the essential elements of person- 
 ality, fall within the same class of beings and become mere 
 things. Thus a human being after life is extinct, or while 
 consciousness, reason, and will are suspended, or when under 
 the control of irresistible external force, ceases to be capable 
 of self-determination, and is reduced from the state of a person 
 to that of a thing. A similar chauge of state may be effected 
 by the law, as in the case of a slave who, though naturally a 
 person, is in many respects legally only a thing. 
 
 Read Holland, Ch. viii, pp. 86-92 ; Markby, § 125; Amos, Ch. 
 vi, pp. 85-88; Austin, Lect. xiii, pp. 358-360, Lect. 
 xlvi, pp. 773-783. 
 
 § 114. Of Things Corporeal and Incorporeal. 
 
 Things are divisible according to their nature into two 
 classes: Corporeal and Incorporeal. The distinction between 
 these classes is not the same as between things material and 
 immaterial, or between things physical and spiritual, but 
 rather that between things tangible and things intangible. 
 Things corporeal are those which can be handled, and either 
 occupied by man or delivered by one person to another. Such 
 are lands and houses into which a man can enter, or animals, 
 furniture, and vessels which he can manually transfer to
 
 § 115 THINGS. 119 
 
 another. Things incorporeal are those which cannot be 
 handled or occupied or delivered. They may be material 
 or immaterial, physical or spiritual. They may or may not 
 be perceptible to the senses of sight, smell, taste, and hear- 
 ing, but they do not come under the manual control of per- 
 sons, and cannot be transferred by one person to another 
 except by words, written or spoken, or by some act which 
 signifies that the dominion of the former owner over them has 
 ceased and that of a new owner has begun. Examples of 
 incorporeal things are the unchained forces of nature, the 
 powers of the mind, the franchises of corporations, and the 
 privileges which one person may possess in reference to 
 the persons and property of others. Whether some things 
 are corporeal or incorporeal depends on their condition rather 
 than their nature. The vapors of the atmosphere, for- in- 
 stance, while unconfined, are incorporeal; enclosed in a recep- 
 tacle or condensed into water or frozen into ice, they become 
 corporeal. Other things, like buildings, money, furniture, are 
 corporeal as long as they preserve their identity. Others, 
 such as the mental faculties, franchises, and similar privi- 
 leges, are always incorporeal. , 
 
 Read 2 Bl. Com., p. 17; Markby, §§ 120-128; Austin, Lect. 
 xiii, pp. 361, 362. 
 
 § 115. Of Incorporeal Things which Exist only in Contempla- 
 tion of Law. 
 Things incorporeal may either have an actual existence, or 
 they may exist only in contemplation of law. The forces of 
 nature, mental conceptions, and the like, are essential reali- 
 ties, not depending on human society or political institutions 
 for their bein,u r . But franchises, privileges in the property 
 of others, contract rights, rights of action, and many oth< c 
 incorporeal objects, cannot exist except in society, and only 
 exist there by virtue of the creative act of the law. In the eye 
 of the law these are, however, as real as any other objects, and 
 are as fully subject to its protection and control. The num- 
 ber of these objects rapidly increases with the development
 
 120 AMERICAN JURISPRUDENCE. § 116 
 
 of social life, and they often rival, if not perhaps surpass, in 
 value those whose existence is independent of the law. 
 
 Read 2 BI. Com., p. 20 ; Holland, Ch. xi, pp. 183-186; Amos, 
 Ch. viii, pp. 167-170. 
 
 § 116. Of Things Movable and Immovable. 
 
 Things are divided according to their relations to other 
 things into Movable and Immovable. Things corporeal are 
 movable when they can be transported from one place to 
 another without losing their identity. Things corporeal are 
 immovable when they are permanently attached to one locality 
 or can be removed only by disintegration and destruction. 
 This distinction, simple enough as thus stated, is more or less 
 complicated by certain rules of law which declare that corpo- 
 real objects movable in themselves are in some cases legally 
 immovable, — meaning thereby that the owner of the movable 
 object has no legal right to remove it from the place where 
 at the time it happens to be. Thus a tree planted in the soil 
 is actually movable without loss of its identity, and if the 
 owner of the soil and the owner of the tree are the same per- 
 son, he ordinarily has also the legal right to remove it; but 
 under certain circumstances, as, for instance, if he has mort- 
 gaged or contracted to sell the land with the tree growing in 
 it, the tree will become immovable in law, though in fact as 
 easily movable as ever. Apart from these legal rules, which 
 apply only to cases where two or more parties have conflicting 
 interests in the same object, — one to remove, the other to 
 retain it in its present place, and the law decides in favor of 
 the latter, — corporeal things are movable or immovable 
 according to their actual mobility. Things movable are said 
 to follow the person of the owner wherever he goes. This 
 does not, however, imply that they move as he moves, but 
 that wherever they may be they are always in his legal posses- 
 sion, and are governed by the system of laws prevailing in the 
 place in which he legally resides. Things immovable, on the 
 other hand, remain always, both in law and in fact, in the 
 same locality, and are controlled by the laws of the place
 
 § 117 THINGS. 121 
 
 where they are situated. To things incorporeal the physical 
 attributes of mobility and immobility, of course, do not apply. 
 But as immovable things are generally permanent, and mov- 
 able things are often transitory, the law ascribes the attribute 
 of immobility to certain incorporeal things whose duration 
 is interminable or indefinitely protracted, or whose relation 
 to immovable corporeal property is such that both must be 
 governed by the same system of laws, while other incorpo- 
 real things are classed as movable. 
 Read 2 Bl. Com., pp. 384-388. 
 
 § 117. Of Things Real and Personal. 
 
 Things are also divided into Real and Personal. This clas- 
 sification originally rested upon the legal status of objects as 
 chiefly manifested by the remedy which the law afforded to 
 their rightful possessor when he had been unlawfully deprived 
 of their possession. In former times such rightful possessor, 
 if the objects of which he had been deprived were of a certain 
 character, could recover by an action at law the possession 
 of those very objects, and hence those actions were called 
 "real actions," and the objects recoverable by them were 
 known as "things real." On the other hand, if the objects 
 were of a different character he could not recover by his action 
 at law the real objects themselves, but only damages for their 
 privation, to be collected from the wrong-doer, if necessary, 
 by the imprisonment of his person, and hence such actions 
 were called "personal actions," and the objects for whose 
 dispossession they were brought were known as "things 
 personal." This line of distinction was not an exact one, for 
 in certain cases the actual possession of things personal could 
 also be recovered, but it was of sufficiently general applica- 
 tion to warrant this classification of objects by the law. Xow, 
 as it happened, the things which could thus be legally recov- 
 ered in specie were, for the most part, immovable or perma- 
 nent, while the things for which damages alone could be 
 obtained were movable; and for this reason the name "real" 
 became gradually applied to immovable objects, and the name
 
 122 AMERICAN JURISPRUDENCE. § 118 
 
 " personal " to those which are transitory or movable, until 
 by many modern jurists these classifications have been treated 
 as identical. But, strictly speaking, they are not so. Under 
 our modern law things movable can in many cases be recov- 
 ered in specie, and such things are, therefore, as real, in the 
 ancient sense, as things immovable, and thus not only has 
 the old ground of distinction between things real and personal 
 nearly disappeared, but the correspondence between personal 
 and movable on one side, and immovable and real upon the 
 other, has also vanished. During the period when this dis- 
 tinction and correspondence did exist, however, there grew 
 up two bodies of law, respectively known as the Law of Real 
 Property and the Law of Personal Property, which were 
 separated from one another by certain fundamental differences 
 relating mainly to the acquisition and transfer of the two 
 species of property. Objects governed by the law of Real 
 Property, whether as formerly they are immovable or as in 
 ]ater times they are frequently movable, are appropriately 
 called "real," while objects regulated by the law of Personal 
 Property may be truly known as "personal." The distinc- 
 tion, therefore, now rests as it did anciently upon the legal 
 status of the objects rather than their mobility or immo- 
 bility, not indeed their legal status as to the law of remedies 
 alone, but as to the two great bodies of law, — the law of Real 
 Property on one hand and the law of Personal Property upon 
 the other. Everything governed by the law of Personal 
 Property is personal; everything governed by the law of Real 
 Property is real. As to what objects shall be subjected to 
 each of these systems of law, the law itself decides, and 
 may at any time remove an object from the control of one 
 system to that of the other. 
 
 Read 2 Bl. Com., p. 16; Markby, §§ 129, 130; Williams, R. P. 
 pp. 1-10. 
 
 § 118. Of the Authority of the State over Things. 
 
 All things, like all persons, are subject to the law. Not 
 that the practical sovereignty of the State now extends to and
 
 § 118 THINGS. 123 
 
 controls all objects corporeal or incorporeal, for it is actually 
 confined to those which come in some way into relations with 
 the human race, but that as man advances and widens his 
 horizon and acquires new possessions and establishes new 
 relations all these, to the utmost possibility of human devel- 
 opment, must fall one after the other under the practical 
 sovereignty of the State and become subject to the operation 
 of its laws. Already the law of things, or the law which 
 governs the rights of persons in things, far outstrips in vol- 
 ume and detail the law of persons, and constantly presents 
 new questions of the most difficult character and of the most 
 serious import to mankind.
 
 124 AMERICAN JURISPRUDENCE. § 119 
 
 CHAPTER V. 
 
 OF RIGHTS, DUTIES, WRONGS, AND REMEDIES. 
 
 SECTION I. 
 
 OF RIGHTS. 
 
 § 119. Of the Purpose of Law. 
 
 The purpose of law is the definition and assertion of 
 rights. If all the rights of States and individuals were spon- 
 taneously understood and respected there would be no occa- 
 sion for the enactment by political society of any rules of 
 conduct. But because these rights are not always compre- 
 hended, or when comprehended are not always respected, 
 society is obliged for its own preservation and the protection 
 of its members to make laws and to compel their observance. 
 Thus, in communities composed of intelligent and upright 
 persons, who instinctively and almost unconsciously perform 
 the acts which the law would otherwise command, rights re- 
 quire little specific definition or protection and the laws are 
 consequently either few in number or rarely appear as impor- 
 tant elements in social life. On the contrary, in ignorant or 
 turbulent communities the machinery of the law is in vigor- 
 ous and constant operation, the several functions of the State 
 being incessantly exercised in the assertion and defence of 
 individual and public rights. Hence it is that, to a great 
 extent, rights become consciously known and understood only 
 through their legal definition, and this relation between law 
 and right has led some writers to maintain that rights have 
 their origin in law, and that in the absence of political society,
 
 § 120 RIGHTS. 125 
 
 manifesting its authority by the definition and assertion of 
 rights, individuals would have no rights which other indi- 
 viduals would be under any obligation to respect. Were this 
 proposition true, not only would there be in individuals no 
 right to form a .State and no obligation to unite with and obey 
 it, but the State, when formed, or the ruling majority in it, 
 would possess absolute dominion over the persons and prop- 
 erty of its citizens, and, however unreasonable and unjust its 
 acts might be, they could work no wrong to any one, since 
 wrong consists in the violation of rights, and there could be 
 no rights except such as the State, or the majority in it, 
 might see fit to concede. 
 
 Read Holland, Ch. vi, pp. 68-70, Ch. xiii, p. 284. 
 
 § 120. Of the Origin of Rights. 
 
 Rights have their origin in the nature of persons, and con- 
 sequently exist by virtue of the eternal law. A right is the 
 authority, inherent in a person, to freely exercise in accord- 
 ance with reason and justice his natural and acquired capabil- 
 ities. The natural capabilities of a person reside in him in 
 obedience to the natural law. His acquired capabilities result 
 from the development of his natural capabilities by forces 
 which owe their existence and their influence upon him to the 
 same natural law. And as all the operations and effects of 
 the natural law proceed from the intelligence and purpose of 
 the Supreme First Cause, so do all the capabilities of a per- 
 son, whether natural or acquired, subsist in him in pursu- 
 ance of the same supreme intelligence and purpose, and in 
 order that they may be exercised by him in the attainment of 
 those ends for which by the same intelligence and purpose he 
 has been designed. The possession of a power to act thus 
 carries with it a right to act, — the right and the power 
 equally relating back to the ultimate intellect and will out 
 <>i' which all created nature springs. Now were there but one 
 person in the universe, and he endowed with but a single
 
 126 AMERICAN JURISPRUDENCE. § 120 
 
 capability, his right to exercise that capability to its fullest 
 possible extent would follow necessarily from its possession. 
 But where, as in mankind, many capabilities reside in the same 
 person, each must be exercised with due regard to the benefi- 
 cial exercise of the others, such harmony and subordination 
 being maintained between them as will insure to their pos- 
 sessor, from their collective exercise, the most advantageous 
 result. The power to eat, for example, must be exerted with 
 reference to the power to digest ; the physical and mental 
 capabilities must be maintained in proper subordination to 
 each other, neither the body exhausted by mental effort nor 
 the mind clouded by sensual indulgence, but every faculty 
 restricted in its operation to occasions, methods, and degrees 
 which allow every other faculty its adequate influence upon 
 the individual character and life. Hence in a composite per- 
 son like man, although the right exists because the power 
 exists, yet the right is not commensurate with the power, but 
 is necessarily limited by the co-existence and contemporaneous 
 exercise of other equally essential powers. It is the prin- 
 cipal office of the human reason to act as mistress and arbiter 
 over these various capabilities and to duly order and propor- 
 tion the exercise of each one to the others. An exercise of 
 powers is reasonable and right when this order and proportion 
 are preserved; unreasonable and wrong, whenever they are 
 violated; and thus a right consists, so far as its individual 
 possessor is alone concerned, in the authority to use his col- 
 lective capabilities according to the dictates of reason. More- 
 over, man is not the only person in the universe. He is 
 surrounded by an innumerable multitude of persons, all 
 endowed with powers and clothed with rights under the 
 natural law, and related to himself in such a manner that 
 more or less of them are constantly affected by his conduct, 
 and he in turn by theirs. As the rights of these other per- 
 sons rest on the same basis as his own, they are of equal 
 validity and authority with his, and thus the law of nature 
 imposes upon him the obligation to recognize their rights and 
 so adjust the exertion of his capabilities to theirs that every 
 one may freely exercise his powers to the utmost extent com-
 
 § 121 RIGHTS. 127 
 
 patible with their equally free exercise by every other. This 
 adjustment is again the office of the reason, and its measure 
 and result are fixed by justice, which compels every person 
 to render to every other person that which is his due. Thus 
 a further differentiation arises between the scope of rights and 
 that of powers, the right to exercise the power existing only 
 when its exercise is reasonable and just. 
 Read Lorimer, Book i, Ch. vii. 
 
 § 121. Of the Legal Definition and Assertion of Essential Rights. 
 If all men were intuitively governed by right reason and 
 stri ct justice, every man would be a sufficient law unto him- 
 self, and every right would be spontaneously recognized and 
 respected. But since in man, as he really exists, the light 
 of reason is generally deficient or the sense of justice weak, 
 it is necessary that some authority external to himself should 
 point out to him the true limitations which reason and justice 
 establish to the exercise of his various powers, — in other 
 words, that it should define his rights and prescribe rules of 
 conduct by which they may be preserved. One of the chief 
 of these authorities, though not by any means the only one, 
 is the State, which, with a view primarily to the welfare of 
 the social body as a whole, undertakes to define and protect 
 by its laws such of these rights as cannot be invaded without 
 detriment to society itself, either through the loss entailed 
 upon the individual or through the disturbance of the public 
 peace and order. Rights thus defined become known as 
 "legal rights," not because they are created by legislative ac- 
 tion, nor because, having been originally natural rights, they 
 have lost their intrinsic validity and obligation, but because, 
 having received the sanction and protection of the laws, they 
 now possess a new vitality and energy through their adoption 
 and assertion by the State Outside of these still lies the 
 vast field of purely natural rights, of which as yet the State 
 takes no cognizance, either because the common sense and
 
 128 AMERICAN JURISPRUDENCE. § 122 
 
 natural instincts of its members sufficiently secures their due 
 observance, or because their recognition is not necessary to 
 the accomplishment of the purposes for which political soci- 
 ety exists, (a) 
 
 Read 1 Bl. Com., pp. 53-55; Markby, §§ 147-153, 159-162; 
 Holland, Ch. vii, pp. 71-78, Ch. viii, pp. 79-81; 
 Amos, Ch. vi, pp. 88-97; Austin, Lect. xii, pp. 
 343-347, Lect. xvi, pp. 393-398. 
 (a) 14 St. 693 (694); 169 U. S. 366. 
 
 § 122. Of the Legal Definition and Assertion of Incidental 
 Rights. 
 For the most part natural rights in becoming legal rights 
 undergo no formal change in character or comprehension but 
 are defined and asserted by the law according to their true 
 nature and relations. But in many cases the practical appli- 
 cation of the law to the protection of these rights requires 
 the adoption of artificial means, in reference to the use of 
 which new rights arise, having apparently no other origin 
 than the immediate fiat of the State. To this class belong all 
 those rights which pertain to the operations of remedial jus- 
 tice, — such as the law of actions, pleading, evidence, and 
 procedure, — as well as to those measures which the State 
 employs in enforcing its own rights against the persons and 
 property of its citizens, — such as conscription, taxation, and 
 eminent domain. Still the real basis of these rights is the 
 natural law. For the law of natural justice dictates that 
 when a right is violated the wrong-doer shall make adequate 
 restitution. The nature of the State imposes upon it the duty 
 to compel this restitution when the wrong-doer fails to volun- 
 tarily award it, and in the performance of this duty to adopt 
 the remedial methods which are best suited for this purpose 
 in view of the circumstances of the case. In like manner the 
 law of nature obliges the citizen to support the State of which 
 he is a member and authorizes the State to provide means by 
 which this support can be most easily and effectively sup-
 
 § 123 EIGHTS. 129 
 
 plied. Hence whatever rights the State confers on individ- 
 uals or asserts for itself in the fulfilment of these duties, 
 though in form they may seem technical and arbitrary to the 
 last degree, nevertheless derive their existence from the same 
 law of nature as the rights which they assert, and are deter- 
 mined even as to their form by events and conditions which 
 likewise owe their origin to the same natural Jaw. Thus 
 every right which the law recognizes is either an essential 
 natural right or is included in it as its necessary incident, and 
 consequently rests upon the same authority, is indorsed by 
 the same sanction, and inheres in the person who possesses it 
 as his natural endowment, and not as a mere concession of 
 the State. 
 
 § 123. Of Rights Public and Private. 
 
 Legal rights are divisible into Public Rights and Private 
 Plights. Public rights are those which inhere in the State or 
 in its governmental agents, or in private individuals as 
 against the State or its agents. The rights of the State, taken 
 together, constitute its sovereignty, or the authority to do 
 whatever may be necessary for the common good. Enumera- 
 tively, they are the right to receive the obedience and sup- 
 port of its own subjects and to establish such relations between 
 itself and other States as its just interests require. These 
 rights are denned in part by the general provisions of inter- 
 national, constitutional, and criminal law. and in part by the 
 enactments and treaties of the State itself. The public 
 rights of citizens, sometimes called their political rights, are 
 the right to the protection and vindication by the State of 
 their private legal rights, the right to participate in the 
 government of the State according to current constitutional 
 provisions, and the right to be free from the interference cf 
 the State except by due course of law. Private rights are 
 those which reside in natural or artificial persons in their 
 private capacity and arc assertible only against other private 
 
 9
 
 130 AMERICAN JURISPRUDENCE. §§ 124-126 
 
 individuals. They include all legal rights of persons which 
 are not strictly of a public character. 
 Read Holland, Ch. ix, pp. 111-114. 
 
 § 124. Of Rights Normal and Abnormal. 
 
 Legal rights are also divisible into Normal Rights and 
 Abnormal Eights. Normal rights are those which belong to 
 persons having a normal status. Abnormal rights vest in 
 persons whose status is abnormal, and vary from normal 
 rights in a direction and degree corresponding to the devia- 
 tion of the status of the person from the normal standard. 
 Thus the rights of an artificial person, or of a natural person 
 under age or legal disability, are normal so far as the status 
 is normal, and in other respects are determined by its pecu- 
 liar characteristics. 
 
 Read Holland, Ch. ix, pp. 122-124, Ch. xiv, pp. 297, 298. 
 
 § 125. Of Rights in Rem and in Personam. 
 
 Legal rights are again divisible into Eights in Rem and 
 Eights in Personam. A right in rem is a right assertible 
 against all other persons, such as a right to property or the 
 right of personal security or liberty. A right in personam 
 is a right assertible only against one or more specific persons, 
 such as the right of a father over his child or of one contract- 
 ing party against the other. The same distinction is some- 
 times expressed by the phrases "rights against the world" 
 and "rights against individuals." 
 
 Read Holland, Ch. ix, pp. 128-130, Ch. xiii, pp. 282-288; 
 Markby, §§ 161-167; Austin, Lect. xiv, pp. 369-371. 
 
 § 126. Of Rights Antecedent and Remedial. 
 
 Legal rights are further divisible into Antecedent Eights 
 and Eemedial Eights. An antecedent right inheres in a
 
 § 127 RIGHTS. 131 
 
 person irrespective of the wrongful acts or defaults of other 
 persons. It may be a right conferred on him by nature, like 
 the right to life or liberty, or it may be a right arising from 
 some lawful act of other persons, such as a gift, a contract, 
 or a relation voluntarily established. A remedial right vests 
 in one person as the result of some wrongful act or default of 
 another. It consists in the right to seek and obtain, from 
 the law or otherwise, redress for the injury inflicted by the 
 commission of the wrong. 
 
 Read Holland, Ch. ix. p. 130. 
 
 § 127. Of Normal Antecedent Rights in Rem. 
 
 The foregoing divisions of legal rights into normal and 
 abnormal, in rem and in personam, antecedent and remedial, 
 furnish, when variously grouped together, a fourfold classifi- 
 cation under which the particular normal rights pertaining to 
 private persons may be conveniently enumerated. These 
 four classes are : (1) Normal antecedent rights in rem ; (2) 
 Normal antecedent rights in personam ; (3) Normal remedial 
 rights in rem ; (4) Normal remedial rights in personam. Nor- 
 mal antecedent rights in rem are those rights which inhere in 
 persons of normal status irrespective of the wrongful acts or 
 defaults of other persons, and are assertible against all man- 
 kind. Of such rights there are five: (1) The right of per- 
 sonal security; (2) The right of personal liberty; (3) Family 
 rights in rem; (4) The right to property; (5) The right to 
 immunity from fraud. The right of personal security is the 
 right to the legal and uninterrupted enjoyment of life, limbs, 
 body, health, and reputation, (a) The right of personal 
 liberty is the right of a person to control his own acts and 
 forbearances without restraint except by due course of 
 law. (I>) A family right in rem is the right which a domestic 
 superior has, as against all other persons, to the control of 
 his domestic inferior. Family rights are often identified with 
 "relative rights" because they attacli to the relations of hus- 
 band and wife, parent and child, guardian and ward, master
 
 132 AMERICAN JURISPRUDENCE. § 128 
 
 and servant; but they are rights in rem only in reference to 
 the superior; as to the inferior, they are rights merely in 
 'personam, (c) The right to property is the right to acquire, 
 use, and dispose of property, subject to no interference except 
 that of the law. (d) The right to immunity from. fraud is the 
 right of one person to honesty and fairness on the part of all 
 other persons in every transaction where their intentional 
 false representations might lead him to act contrary to his 
 own interests, (e) 
 
 Read Holland, Ch. xi, pp. 148-166, 207-211; Austin, Lect. xiv, 
 pp. 371-373. 
 (a) Amos, Ch. vii, pp. 123-133 ; Cooley, C. Law, Ch. 
 
 xiii. pp. 246-263. 
 (6) Lorimer, Book ii, Ch. i-v, Book iv, Ch. i; Cooley, 
 Const. Lim., Ch. x, xii, xiii; 4 St. 465 (468); 37 St. 
 206 (208); 46 St. 315 (319, 320). 
 
 (c) 1 Bl. Com., pp. 134-138; Austin, Lect. xiv, pp. 373- 
 
 378, Lect. xlvii, pp. 783-789. 
 
 (d) 1 Bl. Com., pp. 138-140; 2 Bl. Com., pp. 1-15; 
 
 Cooley, Const. Lim., Ch. xi, pp. 351-369 ; Amos, 
 Ch. viii, pp. 148-167, 173-189; Austin, Lect. xv, 
 pp. 382-391, Lect. xlvii-lii, pp. 789-856, Lect. liv- 
 lvii, pp. 870-905; 37 St. 206 (209); 14 D. 575, 
 note ; 55 D. 403, note. 
 
 (e) 47 St. 489 (494, 495). 
 
 § 128. Of Normal Antecedent Rights in Personam. 
 
 Normal antecedent rights in personam are those rights 
 which inhere in persons of normal status, irrespective of the 
 wrongful acts or defaults of other persons, but are assertible 
 only against one or more specific individuals. These rights 
 are three: (1) Contractual rights; (2) Fiduciary rights; (3) 
 Family rights in personam. Contractual rights are either 
 Contract rights, or Quasi-Cotxtvaxit rights. Contract rights 
 are those which arise out of agreements between two or more 
 parties, upon sufficient consideration, to act or forbear to act 
 in some legal and possible manner. Quasi-Contvact rights 
 are those which arise without a contract from such voluntary
 
 § 129 RIGHTS. 133 
 
 acts of one person as, in justice and reason, commit him to 
 duties or confer on him privileges in reference to other per- 
 sons. Instances of such rights are the right of one, who has 
 volunteered without request to render to another a beneficial 
 service, to be compensated therefor; or the right of one, who 
 without any legal or moral obligation has paid money under a 
 mistake of fact, to recover it from the payee. Fiduciary 
 rights are rights arising in one person from a confidence by 
 him reposed in and accepted by another either as incidental 
 to a' relation or by virtue of some transaction between them. 
 Such rights are the right of one, whose property has been 
 intrusted to another, to have it administered according to 
 the trust; the right of one joint owner of property, which is 
 in the possession of the other joint owner, to have it properly 
 preserved and used for their joint benefit or equally divided; 
 or the right of one party to a relation to immunity from any 
 fraudulent advantage which might be taken of him by the 
 other. Family rights in personam are those which the parties 
 to the domestic relations of husband and wife, parent and 
 child, guardian and ward, and master and servant possess 
 only against each other. 
 
 Read 2 Bl. Com., pp. 1 12-170 : Holland, Ch. xii, pp. 213-273; 
 Ainos, Ch. vii. pp. 141-144, Ch. ix, pp. 190-227; Aus- 
 tin, Frag. pp. 906-915. 
 
 § 129. Of Normal Remedial Rights in Rem. 
 
 Normal remedial rights in rem are those which are vested 
 in persons of normal status as the result of some wrongful 
 act or default on the part of other persons, and are assertible 
 against all the world. These rights are comparatively rare, 
 but they exist in certain eases, as where the law in applying 
 a remedy for the violation of a right by one wrong-doer affirms 
 tin' right conclusively against all other possible invaders. 
 Thus, lor example, rights of property in vessels arising out 
 of maritime liens may he so defined and vindicated in an 
 action between two immediate contestants as to liar the asser-
 
 134 AMERICAN JURISPRUDENCE. §§ 130, 131 
 
 tion of a contrary right by any person whatsoever; or a decree 
 divorcing a husband and wife not only dissolves the relation 
 as to them, but changes their legal attitude and liability 
 toward all mankind. 
 
 Read Holland, Ch. xi, p. 148, Ch. xiii, pp. 287, 288; 66 D. 
 290 (295) ; 75 D. 714, note. 
 
 § 130. Of Normal Remedial Rights in Personam. 
 
 Normal remedial rights in personam are those which vest 
 in a person of normal status as the result of some wrongful 
 act or default on the part of another person, and are assert- 
 ible only against the wrong-doer. These rights are four : (1) 
 The right of the injured party to defend himself and his 
 property against an attempted wrong; (2) The right to re- 
 gain, by a reasonable exercise of force, the possession of the 
 property or privileges of which he has been wrongfully de- 
 prived; (3) The right to have the wrongful act or default pre- 
 vented or discontinued by the intervention of the courts; (4) 
 The right to obtain compensation from the wrong-doer through 
 judicial or other governmental agencies. 
 
 Read 3 Bl. Cora., pp. 3-23 ; Holland, Ch. xiii, p. 287; Walker, 
 Lect. xxxvii, pp. 584-587. 
 
 § 131. Of the Extinguishment and Transfer of Legal Rights. 
 
 Legal rights may be extinguished, or at all events may lose 
 their legal character, identity, or assertibility, in four 
 methods : (1) By Merger of the right in some more compre- 
 hensive right, as where a debt merges in a judgment or a less 
 estate in a greater (a) ; (2) By Waiver, or the intentional 
 relinquishment of a known, legal right by its owner, mani- 
 fested by deliberate and unequivocal acts or words (b) ; (3) By 
 Forfeiture, as where the owner of a legal right on account of 
 his misconduct or laches (c) or the position in which he has 
 voluntarily led other persons to place themselves (d) , is either
 
 § 132 duties. 135 
 
 deprived of the possession of the right, or is forbidden by the 
 law to assert it against any person, or is estopped from vindi- 
 cating it against those persons whom if he did assert it he 
 would then have misled to their injury; (4) By Satisfaction, 
 which exhausts the right by vesting in its owner the complete 
 object or privilege to which the right pertains. Private legal 
 rights are also capable of transfer by their owner so far as 
 their nature will permit, subject to such restrictions as may 
 be necessary for the common good. 
 
 Read Holland, Ch. x, pp. 137, 138, Ch. xii, pp. 273-276, Ch. 
 
 xiii, pp. 293-296. 
 (a) 15 D. 78, note. 
 (6) 85 D. 240 (245) ; 31 R. 42, note; 72 D. 738, note; 78 
 
 D. 1S6, note; 31 R. 31, note ; 17 D. 238, note. 
 (c) 54 D. 126, note. 
 (</) 16 D. 741, note; 57 R. 424, note; 38 D. 628, note; 
 
 63 D. 665, note. 
 
 SECTION II. 
 
 OF DUTIES. 
 
 § 132. Of the Relation between Rights and Duties. 
 
 The inherence of a right in one person imposes upon other 
 prisons the obligation to respect it. This obligation, equally 
 with the right, has its origin in the natural law, since the 
 right could not be practically enjoyed unless the individuals 
 against whom it must be exercised, if exercised at all, acqui- 
 esced either voluntarily or involuntarily in its enjoyment. 
 The existence of the right thus creates the obligation, and 
 hence the obligation is commensurate with the right in char- 
 acter, in scope, and in the number of persons upon whom it is 
 imposed. This obligation being pi-escribed by reason and 
 justice, and not by an exterior physical force, is properly 
 called a "duty'' or the practical recognition of that which is 
 due to another by virtue of the right residing in him. 
 
 Read Lorimer, Book i. Ch. xi ; Austin, I^ect. xvii, pp. 400- 
 407.
 
 136 AMERICAN JURISPRUDENCE. § 133 
 
 § 133. Of Legal Duties. 
 
 Legal duties correspond to legal rights. Wherever a nat- 
 ural right receives the sanction of the laws, and thus becomes 
 a legal right, a legal obligation to respect the right immedi- 
 ately rests upon all persons by whom the right could be vio- 
 lated. The field of legal duty is thus identical with that of 
 legal right. Some authors have, indeed, attempted to distin- 
 guish a class of legal duties to which there were no corre- 
 sponding legal rights, such, for example, as the legal duty to 
 refrain from cruelty to animals, from suicide, from conspir- 
 ing against foreign States, and from disrespect to objects of 
 religious worship. But this attempt is grounded in an error 
 which first assumes that the only rights invaded by these 
 actions are the rights of animals against mankind, the rights 
 of man against himself, the rights of foreign governments, or 
 the rights of the Creator against his creatures, — none of 
 which, of course, are strictly legal rights; and, secondly, 
 ignores the fact that every political society has the right to 
 protect itself against the outrage of its sensibilities occasioned 
 by the first offence, against the loss of its own members 
 occasioned by the second, against the international complica- 
 tions occasioned by the third, and against the shock to its 
 ideals or the degradation of its moral character occasioned by 
 the fourth. The State has the natural right to enact what- 
 ever laws the physical, economical, intellectual, moral, or 
 spiritual welfare of its people or its own national peace and 
 security may demand; and having enacted such laws it has 
 the legal right to have them obeyed, irrespective of the fact 
 that the beings or persons whose natural rights they protect 
 may be beyond its sphere. Thus whether the State creates a 
 legal duty by directly imposing it upon the citizen, or by giv- 
 ing legal sanction to some natural right out of which the duty 
 springs, there is always a legal right to which the duty cor- 
 responds, and if this legal right does not reside in persons 
 who are under the protection of the State, it does reside in 
 the State itself, whose legal right to the obedience of its 
 subjects no one can call in question. The fact that the four 
 acts above described, when noticed by the law at all, are uni-
 
 §§ 134, 135 duties. 137 
 
 formly punished as crimes against the State, shows at once 
 whose rights the)' infringe and to whom the duties which they 
 violate are due. 
 
 Read Austin, Lect. xxii, xxiii, pp. 443-457, Lect. xxvii, pp. 
 
 499-307. 
 
 i; 134. Of the Classes of Legal Duties. 
 
 The divisions of legal rights already given indicate the 
 corresponding classes of legal duties. A public legal duty is 
 the obligation to respect the public rights of the State, of its 
 governmental agents, and of its members considered in their 
 capacity of citizens. A private legal duty is the obligation 
 not to hinder nor curtail the enjoyment of the private legal 
 rights of natural or artifical persons. Normal legal rights 
 impose general legal duties, applicable to persons of normal 
 status. Abnormal legal rights give rise to exceptional and 
 variable legal duties according to the character and degree of 
 the abnormal status. Legal rights in rem place all mankind 
 under the corresponding legal obligations. Legal rights in 
 personam create legal duties only in reference to the indi- 
 viduals against whom the rights subsist. Antecedent legal 
 rights elicit primary legal duties securing such rights against 
 violation. Remedial legal rights involve secondary or com- 
 pensatory duties, affording to the owner of the violated right 
 a proper satisfaction for the wrong he has sustained. The 
 individual duties embraced in these divisions need not be 
 enumerated nor their specific character explained, since they 
 are already sufficiently suggested by the description of the 
 rights to which they correspond. 
 
 § 135. Of the Relation of Duty to Status. 
 
 This correspondence between legal rights and legal duties, 
 both in their uumber and essential nature, does not, however, 
 imply that the legal duty presses equally upon every person 
 without reference to his own status. Even the duties which 
 are imposed on all mankind by rights in rem do not entail
 
 138 AMERICAN JURISPRUDENCE. § 136 
 
 the same obligations upon natural and artificial persons, upon 
 public officers and private citizens, upon adults and infants, 
 upon the insane and the sane. Differences of status create 
 differences of duty as well as differences of right, and what 
 has been explained in detail under that title in a previous 
 chapter must be taken as a part of this and of every other dis- 
 cussion concerning rights, duties, or wrongs. 
 
 § 136. Of Acts and Forbearances. 
 
 In reference to the nature of the conduct which they in- 
 volve, legal duties consist either of acts or forbearances. An 
 act is a voluntary external movement of the whole or a part of 
 the body of a person. In it two forces concur, — the physical 
 organism and the will. All other movements of the body 
 are mere casual events, not imputable to the person because 
 not prompted by his intellect nor governed by his will. Acts, 
 thus defined, include the active and intentional exercise of 
 the senses of sight, smell, taste, and hearing as well as of the 
 faculties of speech and touch, and without reference to the 
 degree of force which any of these operations may require. 
 A forbearance is a voluntary omission to act when action is 
 possible. Legal duties consisting of acts are called "posi- 
 tive" duties; those consisting of forbearances are called 
 "negative'"'" duties. A large proportion of legal duties are of 
 the latter class. Those answering to normal antecedent 
 rights in rem, with very few exceptions, are mere forbear- 
 ances. Many of those imposed by normal antecedent rights 
 in personam, especially of those growing out of certain species 
 of contracts, are of the same character. On the other hand, 
 those corresponding to abnormal rights, or to remedial rights, 
 or to normal antecedent rights in personam based on other 
 species of contracts or on ^Mcm-eontracts, or on domestic rela- 
 tions, generally require the performance of acts on the part 
 of those against whom the right subsists. 
 
 Head Holland, Ch. viii, pp. 92-109; Markby, §§ 214-235; 
 Amos, Ch. vi, pp. 99-116; Austin, Lect. xiv, pp. 365- 
 369.
 
 §§ 137, 138 duties. 139 
 
 § 137. Of the Distinction between Positive and Negative 
 Duties 
 A principal distinction between negative and positive 
 duties resides in the fact that negative duties can be per- 
 formed only by the perso ns charg ed with the duty, while posi- 
 tive duties may sometimes be performed either by such 
 persons or their authorized agents, or even by unauthorized 
 persons upon their behalf. A forbearance by a person who is 
 under no legal obligation to forbear never can legally take the 
 place of the forbearance of the persons upon whom the duty 
 of forbearance rests, since the right to which the duty of for- 
 bearance corresponds is completely violated by the failure of 
 the obligated person to forbear, though every other person in 
 the world should carefully refrain from any interference with 
 the right. Thus, for example, if a manufacturer were to sell 
 his factory, together with its business and good-will, and 
 covenanted with the buyer not to start a rival factory in that 
 vicinity, yet broke his covenant and did so, it is apparent that 
 the rights of the buyer are invaded as effectually as they could 
 ever be, though no other maker of the same commodities 
 attempted to establish any similar competing enterprise. 
 But if the duty of the selling manufacturer had been a posi- 
 tive one, such as maintaining the ponds from which the water 
 power was to be supplied at a given height and area, and 
 failing to do this himself the same acts were performed on 
 his behalf either by his agents or some interested relative, 
 the buyer would sustain no loss of privilege and consequently 
 no violation of his rights. In cases, however, where the act 
 to be performed involves judgment and discretion, only the 
 person upon whom the duty rests can legally discharge it. 
 Read Markby, §§ 181-192. 
 
 § 138. Of the Extinguishment of Duties. 
 
 An obligation ceases either upon the performance of the 
 duty or the extinction of the right. Where the individual in 
 whom the right inheres intentionally relinquishes it, or is 
 guilty of an act or default which works its legal forfeiture,
 
 140 AMERICAN JURISPRUDENCE. § 139 
 
 the persons against whom it might previously have been 
 enforced are no longer bound to notice or regard it. (a) Such 
 an extinction of the right may take place in favor of all per- 
 sons upon whom the obligation rests, or upon one or more of 
 them, remaining in its full validity against the others. But 
 the complete performance of the duty, by any one who has 
 the power to do so, satisfies the right and thereupon the 
 obligation ceases, not only as to him by whom it was per- 
 formed, but as to all others upon whom th£ duty was im- 
 posed, (b) The owner of a tract of land, for instance, may 
 waive his right to exclude from it certain persons without im- 
 pairing the obligation of all other persons to keep outside its 
 boundaries. But if one of several joint trespassers thereon, 
 all of whom are bound to make him compensation for the 
 injury, pa}-s him a sum equivalent to the damage which he 
 has sustained, the duty is discharged as to all and his right to 
 compensation ceases to exist. Negative duties which corre- 
 spond to rights in rem cannot, however, be completely per- 
 formed by any number of persons less than all mankind, and 
 consequently these duties, like their originating rights, con- 
 tinue until the rights themselves are waived or forfeited or 
 all the persons in whom they inhere cease to exist. 
 
 Read Holland, Ch. xii, pp. 276-281. 
 (a) 39 St. 577, note. 
 (6) 14 R. 60. 
 
 SECTION III. 
 
 OF WRONGS. 
 
 § 139. Of the Nature and Scope of Legal Wrongs. 
 
 A legal wrong is the failure to discharge a legal duty, and 
 consequently consists in some act or forbearance in violation 
 of a legal right. Where the duty is positive it is not fulfilled, 
 and therefore a wrong is committed, unless the obligatory 
 act is precisely and completely performed. Thus, for exam- 
 ple, the duty of a lessee to surrender the leased premises to 
 the lessor, on a day stipulated in the lease (which is a posi-
 
 § 139 WRONGS. 141 
 
 tive duty), is not discharged by the relinquishment of any 
 fraction of the premises, however great, at the appointed 
 time, nor of the entire premises at any later date. Hence 
 wrongs against positive duties admit of degrees. Although 
 it is a wrong, yet it is obviously a smaller wrong for the 
 lessee to delay the surrender of the premises, or to temporarily 
 withhold a part, than to permanently retain the whole; or for 
 a debtor to let pay-day pass without a payment than never to 
 pay his debt at all; or for a husband or a father to afford 
 inadequate protection to his wife or children than to utterly 
 neglect them; or for a criminal to passively disobey the law« 
 than to rebel openly against the State. And though it is as 
 true of one degree* as of the other that rights have been in- 
 vaded and duties unperformed, still the injury inflicted or the 
 guilt incurred, and the restitution to be made or the penalty 
 endured, are manifestly not the same in measure and severity. 
 For this reason wrongs which violate positive duties are com- 
 plex and scarcely capable of enumeration, vastly exceeding in 
 variety the rights which they attack, lint on the contrary, 
 when the duty is negative, no act less than the whole act 
 which the negative duty forbids can transgress the duty or 
 constitute a wrong. The duty not to commit fraud by inten- 
 tionally misleading others to their injur}', for instance (which 
 is a negative duty), is not infringed by unintentional!}- mis- 
 leading them, nor by an ineffectual endeavor to mislead them, 
 nor by intentionally misleading them without resulting 
 loss. (") Wrongs against negative duties thus admit of no 
 degrees. The duty and the right out of which it arises are 
 precise and specific, and the duty to respect the right cannot 
 be violated by any act less than or different from the one 
 proscribed. Wrongs against negative duties are consequently 
 few and simple, their number, nature, and effects being clearly 
 indicated by the statement and description of the rights which 
 they invade. 
 
 Read Markby, §§ 592-602; Austin. Lect. xviii-xix, pp. 410- 
 121, beet, xxi, pp. 43.">-4b>. beet, xxiv-xxvi, pp. 
 457-499. 
 (</) SI I). :!71 : 72 D. 039; 32 \\. 562.
 
 142 AMERICAN JURISPRUDENCE. §§ 140, 141 
 
 § 140. Of Malfeasances, Misfeasances, and Nonfeasances. 
 
 Wrongs are divisible, according to the nature of the acts or 
 forbearances of which they consist, into Malfeasances, Mis- 
 feasances, and Nonfeasances. Malfeasance is the doing of 
 that which it was the duty of the doer not to do. Misfeas- 
 ance is the doing in an unlawful manner of that which the 
 doer was either bound to do or had the right to do. Nonfeas- 
 ance is the not doing of that which it was the duty of the 
 non-doer to do. Malfeasance thus implies an act and non- 
 feasance a forbearance; but misfeasance may assume the form 
 either of an act or a forbearance; of an act, when the mis- 
 feasance consists in carrying the lawful act to an unlawful 
 excess either in quantity or method; of a forbearance, when 
 the act, although performed, falls short in quantity or 
 method of what the law requires. Malfeasances and such 
 misfeasances as assume the form of an act therefore involve 
 the idea of intentional wrong-doing, — a positive aggressive 
 invasion of the rights of others. Nonfeasances and the mis- 
 feasances consisting in forbearance are due to negligence, 
 either a simple negligence inadvertent of the rights of others 
 and inert in responding to the demands of duty, or a gross 
 negligence conscious of rights and duties but wantonly and 
 purposely refusing to regard them, («) 
 
 Read Holland, Ch. xiii, pp. 288-293 ; Austin, Lect. xx, pp. 
 425-433. 
 (a) 90 D. 49 (52); 12 St. 698, note; 87 D. 644; 48 St. 
 132 (136, 137); 8 St. 624 (625, 626). 
 
 § 141. Of Public Wrongs. 
 
 The classification of wrongs according to the nature of the 
 rights which they invade necessarily follows that of rights 
 and duties. Wrongs which infringe public legal rights are 
 public wrongs. Wrongs which violate private rights are 
 private wrongs. An act or forbearance which transgresses 
 both public and private rights, as is sometimes the case, is in 
 its fornipr character a public wrong, and in its latter character
 
 § 142 wrongs. 143 
 
 a private wrong. Public wrongs are in most cases prosecuted 
 and punished by the State by proceedings instituted by it of 
 its own accord and in its own name, and are then known as 
 "crimes." In other casts they are met by peculiar measures 
 adapted to the individual wrong, such as the removal from 
 office of those who neglect their public duties, the arbitrary 
 increase of the taxes of persons who conceal their taxable 
 property, the confiscation of smuggled importations, the com- 
 mitment for contempt of jurors, witnesses, and other indi- 
 viduals who refuse to obey a legal mandate of the courts, (a) 
 In still other cases the public wrong passes unnoticed by the 
 State, either because it is regarded by the popular judgment 
 as of slight importance, or because no adequate mode of deal- 
 ing with it has yet been contrived. Where public wrongs 
 also involve a violation of private rights, the remedy of the 
 injured party against the wrong-doer is usually the same as 
 if the wrongful act or forbearance had no public character. (/>) 
 
 Read 4 151. Com., pp. 5-7; Amos, Ch. x, pp. 228-263. 
 
 (a) 16 St. 813; 50 D. 68. 
 
 [b) 60 D. 698 ; 28 R. 45, note. 
 
 § 142. Of the Ingredients of a Private Wrong. 
 
 Every private legal wrong contains two ingredients; the 
 wrongful act or forbearance of the wrong-doer, called the 
 injuria, and the resulting loss to the injured party, called 
 the damnum. Under the term injuria the law includes every 
 action and forbearance which does not lie within the sphere 
 of the actor's or forbearor's legal rights. Under the term 
 damnum it embraces every form of loss, actual or implied. 
 which it regards as capable of flowing from a violation of 
 the legal rights of the person who sustains the loss. Injuria 
 and damnum concur whenever one person performs an act 
 which he had no legal right to perform, or omits an act which 
 he had no legal right to omit, and as a consequence of his 
 action or omission some other person suffers a loss, — either 
 an actual loss or a loss implied by law, — from which he had
 
 144 AMERICAN JURISPRUDENCE. § 143 
 
 a legal right to be exempt. An injuria sine damno, or an 
 unlawful act which causes no loss, of which the law will take 
 notice, to another party in violation of his legal rights, is not 
 a private wrong, though it may be a public one, and a damnum 
 absque injuria, or a loss of which the law could otherwise 
 take notice but which in this case has resulted from a lawful 
 action or forbearance, is not a violation of a legal right, since 
 the legal rights of one person can never be infringed by the 
 lawful actions or omissions of another, (a) Hence the truth 
 of the ancient maxims that neither from damnum absque 
 injuria nor from injuria sine damno can any suit at law arise; 
 for in the first case the actor or forbearor has kept within 
 his legal rights, and in the second the legal rights of the 
 person who sustains the loss have never been infringed. 
 
 Read (a) 8 D. 369. 
 
 § 143. Of the Distinction between Torts and Breaches of Con- 
 tract. 
 
 Private legal wrongs are sometimes called "torts," a gen- 
 eric name employed to distinguish them from crimes. But 
 in the language of the English and American law this name 
 is usually confined to private wrongs which do not consist in 
 the failure to perform the obligations of a contract or a quasi- 
 contract, or to discharge the duties growing out of legal rela- 
 tions between the wrong-doer and the injured party. Though 
 this distinction between torts and other private wrongs may 
 not be philosophically correct, yet it is so deeply imbedded 
 in our law that it cannot now be obliterated or ignored. 
 Upon it are based many differences in forms of actions, modes 
 of procedure, and the scope and application of judicial reme- 
 dies ; and thus there has gradually arisen a. division of private 
 wrongs into the two classes, — torts and breaches of contract, 
 — which are separated from one another not so much by any 
 permanent variation in character as by the dissimilar modes 
 in which the injured parties seek and find redress. Between 
 these classes, however, no sharp, inflexible line of demarca-
 
 § 144 wrongs. 145 
 
 tion can be drawn. Many acts and forbearances which are 
 violations of contract or of relative rights are also torts, and 
 would be torts even if no contract or relation had ever sub- 
 sisted between the parties ; and in such cases the injured party 
 may pursue his remedy either for the tort or breach of con- 
 tract or for both, although he can recover but one complete 
 satisfaction for the wrong. 
 
 Read 3 Bl. Com., pp. 118, 119: 17 D. 238, note. 
 
 § 144. Of Breaches of Contract. 
 
 Of what acts or forbearances a breach of contract consists 
 the contract itself in its true legal interpretation must deter- 
 mine. Anything less than the complete performance of the 
 contract according to its terms is such a breach, though of 
 immaterial and minute variations from its letter, working no 
 harm to either party, the courts are not inclined to take 
 notice, provided the substantial benefits of the agreement are 
 secured. (a) Thus a contract to pay money on a certain day 
 is substantially performed by its payment at a subsequent day 
 with the lawful interest accruing during the interval, and the 
 acceptance of the money with its interest by the creditor, or 
 even its tender by the debtor, is a satisfaction of the rights 
 created by the contract although it has not been literally ful- 
 filled. But the failure of one party to perform any essential 
 provision of the contract is a wrong whether or not the other 
 party suffers actual loss, since the wrong consists not in the 
 disastrous consequences which follow an invasion of the right 
 but in the invasion of the right itself, the law adverting to 
 thr consequences only to ascertain the amount of compensa- 
 tion which the injured party is entitled to recover. In like 
 manner the duties growing out of a qzta si-contvact or a legal 
 nlatioii between the parties define the nature and extent 
 of any wrong by which the rights of either party may be 
 violated. 
 
 Read 3 151. Com., pp. 153-166; Markby, §§ G03-GGG. 
 («) 32 I). 518 j 7 -2 I). 142. 
 10
 
 146 AMERICAN JURISPRUDENCE. §§ 145, 146 
 
 § 145. Of Torts. 
 
 To the class of torts, technically so called according to our 
 law, belong all private malfeasances which do not consist 
 purely in the commission of some act that, but for the con- 
 tract or relation into which he has entered, the doer would 
 have had a right to do. Such are all acts against security, 
 liberty, property, or family rights, unless performed in the 
 lawful assertion of a private right, or by the lawful consent 
 of the injured party, or in the exercise of legal authority; and 
 also all acts of positive and intentional fraud resulting in 
 pecuniary loss to the person deceived. In the same class 
 are comprised all private nonfeasances which consist in the 
 failure to discharge some duty imposed by law upon all per- 
 sons or on all persons of a certain group in which the non- 
 feasor is included; and all private misfeasances which consist 
 in acts exceeding the measure of the actor's legal right or in 
 forbearances by which a general legal duty is imperfectly 
 discharged. Most of these torts are violations of rights in 
 rem, though some infringe duties which originate in contracts 
 or relations, while wrongs against rights in rem are always 
 torts even when such rights have been fortified by special 
 relations or agreements which are also violated by the perpe- 
 tration of the wrong. 
 
 Read 3 Bl. Cora., pp. 119-153, 166-174, 208-242; Markby, 
 §§667-716; 88 D. 503. 
 
 § 146. Of the Relation of Wrongs to Status. 
 
 The complete capacity to commit legal wrongs resides in 
 persons of normal status alone. Such persons not only 
 possess all legal rights but are subject to all legal duties, and 
 are consequently able to infringe them. But persons of 
 abnormal status are at once limited in rights, in obligations, 
 and in ability to perpetrate wrongs, according to the peculiar 
 characteristics attached by the law to their status, and out- 
 side those limitations cannot be guilty of a tort, a breach of 
 contract, or a crime, whatever may be the nature of their
 
 § 147 wrongs. 147 
 
 actions or omissions or the injuries to others in which they 
 result. Thus an infant does not break a contract by failing 
 to perform his agreements other than those for necessaries; 
 an idiot does not become guilty of a murder by the inten- 
 tional killing of his neighbor; a married woman did not, under 
 our earlier laws, violate a private right by any acts of violence 
 against others in which she might engage. The consideration 
 of the status of the alleged wrong-doer, as well as that of the 
 owner of the right which is or is supposed to be violated, 
 must, therefore, enter into every question concerning the ex- 
 istence of a legal wrong. 
 
 § 147. Of the Extinguishment of Wrongs. 
 
 A legal wrong may be extinguished by the person whose 
 rights it has invaded, provided the consent of the wrong-doer 
 is obtained. Where the State thus obliterates a public 
 wrong its act is called a ''pardon," and may be absolute, — 
 taking effect at all events, or be conditioned upon the conduct 
 of the person pardoned. It extinguishes not merely the lia- 
 bility to prosecution and punishment but also the very im- 
 putation of the crime, so that the wrong-doer is no longer re- 
 garded by the law as having been guilty of the crime. To the 
 validity of a pardon its acceptance by the criminal is necessary 
 and its effect is limited to the particular wrongs enumerated 
 in the grant by which it is conferred, (a) The commutation 
 of a penalty, though like a pardon an act of sovereign grace, 
 is not in any sense a pardon, since it operates upon the pun- 
 ishment alone and does not purport to affect the crime, (b) 
 The condonation of a private wrong by the injured party may 
 be gratuitous or upon consideration, and when gratuitous 
 may be irrevocable or subject to recall upon a repetition of 
 the wrong. Instances of such condonation occur where a 
 creditor accepts the aim unit due him after the date when it 
 should have been paid, or a wife admits an adulterous hus- 
 band to his conjugal privileges alter she has notice- of his
 
 148 AMERICAN JURISPRUDENCE. § 148 
 
 adultery, or any injured party releases the wrong-doer upon 
 the receipt of some satisfaction for the wrong, (c) 
 
 Read 4 Bl. Com., pp. 394-402 ; Cooley, C. Law, Ch. v, pp. 115- 
 117. 
 
 (a) 84 D. 431, note ; 59 D. 566, note ; 7 Pet. 150 ; 48 R. 
 
 462 ; 19 D. 679, note ; 49 R. 684 ; 30 R. 395 ; 31 R. 
 385. 
 
 (b) 18 How. 307. 
 
 (c) 52 D. 561 ; 46 R. 476 ; 41 D. 370 ; 100 D. 752. 
 
 SECTION IV. 
 
 OF REMEDIES. 
 
 § 148. Of the Relation of Remedies to Wrongs. 
 
 The commission of a legal wrong vests in the injured party 
 a remedial right. It is a maxim of the law that " Ubi jus ibi 
 remedium," or wherever a legal right exists to be invaded the 
 law will give redress when it is violated. The complete 
 infliction of the injury thus immediately calls into existence 
 the remedial right. Where the wrong is iustantaneous, like an 
 act of violence, it becomes complete at once, and the remedial 
 right may be forthwith asserted. Where it consists in some 
 neglect of duty further steps may be essential on the part of 
 the injured person, such as a demand upon the other person 
 to perform the duty, before the omission will be recognized 
 as a legal wrong, (a) Where, though the wrongful act or 
 forbearance is itself perfected, the loss which it is likely to 
 entail remains in abeyance, awaiting the occurrence of condi- 
 tions in which it may fall with its full weight upon the owner 
 of the violated right, the vesting of the remedial right is also 
 suspended until the loss has been endured, (b) This legal 
 connection between the wrong and the remedy only the ex- 
 tinguishment of the wrong can interrupt; the remedial right 
 following the infringement of the antecedent right as any 
 other effect follows from its cause. 
 
 Read 1 Bl. Com., pp. 56-58, 141-145 ; 3 Bl. Com., p. 23. 
 (a) 76 D. 174 ; 77 D. 468, note; 40 D. 310, note. 
 (6) 17 D. 782; 70 D. 638.
 
 §§ 149, 150 REMEDIES. 149 
 
 § 149. Of the Primary Purpose of Remedies. 
 
 The primary object of every effort of remedial justice is 
 satisfaction for the wrong committed. Whenever a right is 
 invaded the equilibrium established by reason between the 
 mutually restrictive rights of the parties is disturbed, and 
 reason demands its restoration by placing the parties as 
 nearly as may be possible in their former condition. This 
 dictate of reason manifests itself in the most barbarous of 
 races, and even in children, as that instinct of reprisal which 
 impels them as communities and families and individuals to 
 preserve the balance of rights by wresting satisfaction for an 
 injury from the wrong-doer, either in some form of compensa- 
 tion to the injured party or in some equal privation inflicted 
 on the injurer. To attribute this instinct and its practical 
 expression to a disposition for revenge, as is the custom with 
 such writers as seek the origin of human motives in the rude 
 passions of ancestral beasts, is to cast away the only sanction 
 which gives remedial justice its supreme authority over the 
 violators of a legal right. Revenge has its root in malice, 
 is the worst form of hatred, operates without reference to 
 reason and justice, exults in wrong committed not in rights 
 restored. The instinct of reprisal, or the lex talionis, is 
 essentially reasonable and just, necessary in the present con- 
 dition of mankind to the prevention of wrongs and the preser- 
 vatimi of rights, and therefore must express itself in human 
 institutions and through human laws until man passes into a 
 condition where the disturbance of the equilibrium of human 
 rights is spontaneously avoided or forcibly restrained. 
 Read Markby. §§ 8-2S-830, 839. 
 
 i 150. Of Remedies which Place the Parties in Statu Quo. 
 
 In certain pases of violated legal rights the exact or approx- 
 imate restoration of the wrong-doer and the injured party to 
 their former condition is possible. Where, for example, the 
 owner of a tract of land is ousted from its possession by a 
 wrongful act. the ejection of the intruder, the delivery of pos-
 
 150 AMERICAN JURISPRUDENCE. § 151 
 
 session to the rightful owner, the return to him of the inter- 
 mediate rents and profits, and the payment of such costs and 
 expenses as have accrued from his removal from the land and 
 his endeavors to regain it, not only deprives the wrong-doer of 
 the advantage which his wrongful act conferred upon him, 
 but revests the owner of the land with all the legal privileges 
 and benefits which he could have enjoyed if his original rights 
 had remained undisturbed. True his wounded feelings, his 
 loss of comfort, his anxieties of mind, cannot be recalled 
 and prevented, but these are sufferings which have no neces- 
 sary connection with the invasion of his legal rights, are 
 largely due to personal idiosyncrasies, are incapable of preven- 
 tion or of adequate compensation, and so far as they do result 
 from legal injuries are rarely and reluctantly noticed by the 
 law. Other instances of the return of the parties to their 
 former condition occur in the restoration of personal property 
 to its owner with damages for its detention, in the specific 
 performance of a contract, in the induction of an officeholder 
 into an office from which he has been unlawfully excluded, 
 the payment of an overdue debt with interest during the time 
 of its delay, the rescission of an agreement obtained by fraud, 
 or the enforcement of the duties of trustees, (a) The ten- 
 dency in all civilized States — stronger and more successful 
 in proportion to their degree of civilization — is to seek for 
 forms of satisfaction for completed wrongs which place the 
 parties in statu quo and to devise methods for applying them, 
 and thus to establish remedial systems which, next to such as 
 prevent wrongs altogether, are the most consonant with reason 
 and the most useful to mankind. 
 
 Head 3 Bl. Com., pp. 116, 174-184, 198-207. 
 
 (a) 14 D. 614; 52 D. 777; 27 D. 578; 35 D. 131; 12 
 D. 70. 
 
 § 151. Of Compensatory Remedies for Public Wrongs. 
 
 As yet, however, the vast majority of legal wrongs have 
 not been met with remedies affording this exact or approxi-
 
 § 152 REMEDIES. 151 
 
 mate return of the parties to their previous condition. With 
 scarcely an exception that class of public wrongs, known as 
 crimes, affords no opportunity for such a remedy. The denial 
 of the authority of the State, its insulted majesty, the breach 
 of public peace and order, the injury inflicted on it directly 
 or through the persons of its citizens, cannot be obliterated by 
 any repentance or restitution on the part of the wrong-doer. 
 A passive submission to such wrongs by the State is incom- 
 patible with its political supremacy; immunity to the wrong- 
 doer is contrary to justice; and hence in reason and in justice 
 it is necessary that the State should exact from the wrong- 
 doer such reparation as shall be, as nearly as possible, the 
 equivalent of that obedience and respect to which it was orig- 
 inally entitled. Defective as the administration of criminal 
 law may now be in our modern States, it nevertheless goes 
 far toward the attainment of this end. Corporal punish- 
 ment, imprisonment and fines, inflicted by the State and 
 endured by the offender, vindicate its authority, repair the 
 insult to its majesty, manifest the supremacy of public order 
 over personal conduct, and assert the sacredness of the par- 
 ticular rights which have been violated by the crime. Better 
 methods than these undoubtedly remain as yet undiscovered, 
 more precisely adjusting the remedy to the reparation of the 
 wrung, but these disclose sufficiently the principle which 
 underlies the punishment of crime, and truly, though perhaps 
 inadequately, embody its demands, (a) 
 
 Read 4 BL Com., pp. 7-10; Amos, Ch. x, pp. 263-269; Austin, 
 Frag. pp. 1040-1070. 
 (a) 35 St. 706. 
 
 § 152. Of Compensatory Remedies for Private Wrongs. 
 
 In numerous instances qi private legal wrongs an equal 
 difficulty exists in finding and applying remedies which return 
 the parties to their statu quo. The blow, the slander, the 
 false imprisonment, the interference with family authority. 
 the destruction of property, cannot be recalled, and that
 
 152 AMERICAN JURISPRUDENCE. § 152 
 
 condition of affairs be reproduced in which these wrongful 
 acts had not been done. But some approach toward a restora- 
 tion of the equilibrium of rights between the parties can be 
 made which, however slight, is more consonant to reason and 
 justice than to leave the wrong-doer triumphant and unmo- 
 lested in his wrong. Even if nothing more is possible than 
 to subject him to a privation equal to that which he has in- 
 flicted on his victim, — "an eye for an eye, and a tooth for a 
 tooth,'' — it is better so than that the law should permit the 
 victim to suffer and his injurer to go unscathed. Kesultless 
 in physical or pecuniary benefit to the injured party as such 
 primitive remedies as these might be, still his sense of justice 
 is satisfied, the sanctity of his rights is vindicated, and the 
 wrong-doer is provided with a powerful motive to anticipate 
 the action of the law and to compensate him for the wrongs 
 in methods more acceptable to both. ■ And when, in the 
 advance of society, property becomes if not the most impor- 
 tant yet the most universally esteemed of human possessions, 
 and money as its representative the standard of all values, 
 money may well be taken, in default of something higher, as 
 the equivalent of many rights, of all rights indeed whose 
 violations do not involve the debasement of the intellect 
 or the defilement of the soul. As long as men voluntarily 
 hazard life and health and reputation and liberty and family 
 rights for pay, as the vast multitude of all mankind habitu- 
 ally do, there can be no great anomaly in treating money 
 as a sufficient compensation for the loss of these endowments 
 when the loss is occasioned by the violation of their rights. 
 Thus the logic of events, which is the law of nature, has 
 established, at least until some better satisfaction is devised, 
 an award of damages payable in money, and enforceable 
 against the person and property of the wrong-doer, as an ade- 
 quate compensation for the injured party for the wrong in- 
 flicted by the invasion of his private rights, and as in effect, 
 though not in form, the restoration of both parties to the 
 condition which existed before the right was violated, (a) 
 
 Read Markby, § 843. 
 
 (a) 27 D. 682, note; 50 D. 766, note; 27 ft. 524, note.
 
 §§ 153, 154 REMEDIES. 153 
 
 § 153. Of Preventive Remedies for Public Wrongs. 
 
 In addition to the measures by which satisfaction is 
 afforded for a completed wrong, States of a higher civiliza- 
 tion have endeavored to create and apply methods by which 
 the perpetration of the wrong itself could be prevented. In 
 the field of public wrongs, besides the police restraints which 
 are intended to make the commission of crime difficult, the 
 purposes of punishment for crime have been extended to em- 
 brace the reformation of the criminal and the dissuasion of 
 others from following his example. Corporal suffering has 
 been so inflicted as not merely to satisfy the demands of 
 justice but to incapacitate the criminal for a repetition of the 
 offence. Imprisonment as a simple penalty has been sur- 
 rounded by such intellectual and moral influences as to ac- 
 quire an educational value in the development of stronger 
 principles and nobler aims. Such methods have at present, 
 however, scarcely passed beyond the region of experiment, 
 and apparently demand for their complete success resources 
 and administrative systems which no State has ever yet 
 possessed. 
 
 Read 4 Bl. Com., pp. 251-257; 35 St. 666, note. 
 
 § 154. Of Preventive Remedies for Private Wrongs. 
 
 Preventive measures against private wrongs have long been 
 an important feature in the law of remedies. Introduced at 
 first to meet and ward off a few irreparable injuries, they have 
 been gradually multiplied, until they are available in almost 
 any case where justice would be better served by hindering 
 the wrong than by allowing it to be committed and then 
 affording legal satisfaction, (a) These measures are often 
 styled preventive remedies, although a remedy contemplates 
 the past as a prevention does the future, because they must be 
 sought in the judicial tribunals where remedies, properly so 
 called, are applied. Those recognized by our laws are known 
 by the general name of "injunctions'" and are within the 
 exclusive jurisdiction of the courts of equity. Resort to these
 
 154 AMERICAN JURISPRUDENCE. § 155 
 
 is no bar to the simultaneous prosecution of measures for 
 the satisfaction of completed wrongs. 
 
 Read Markby, §§ S31-832. 
 
 (a) 12 D. 550 ; 62 D. 372 ; 69 D. 184. 
 
 § 155. Of Existing Defects in the Application of Remedies to 
 Wrongs. 
 
 Obviously, with all the provision which the law makes for 
 the prevention and remedy of wrongs, rights even in the 
 most favored States are not always perfectly protected nor 
 wrongs always adequately redressed. Breaches of contract, 
 torts, and crimes abound, and even when the State has ex- 
 hausted all its legislative and judicial powers according to 
 the light of the current age, a vast residuum of wrong remains 
 for which no satisfaction is obtainable. But this is due not 
 to the unwisdom or injustice of the laws but to those circum- 
 stances of individual persons over which the State has no 
 control. Preventive remedies are launched in vain against 
 intending wrong-doers who are alert enough to anticipate the 
 prohibition of the law, and satisfaction, though awarded by 
 the courts, is fruitlessly demanded from the insolvent and 
 the dead. Nor can these remedies be applied at all without 
 intricate legal machinery started and kept in operation by 
 the injured party, moving with cautiousness and deliberation, 
 liable to err but sedulously retracing its progress in order to 
 correct its errors, and all this at the expense of time and 
 money to the seeker for redress, until in multitudes of cases 
 it is evident that he would suffer less by patiently acquiescing 
 in the wrong than by endeavoring to obtain relief. Great as 
 these evils are, they are undoubtedly destined to eventually 
 disappear through the gradual extension of the field of pre- 
 ventive remedies, the simplification of legal procedure, and 
 the wider dissemination among all classes of citizens of their 
 knowledge of their legal rights and obligations.
 
 §§ 156, 157 REDRESS OF WRONGS DEFINES RIGHTS. 155 
 
 SECTION V. 
 
 OF THE LOGICAL AND CHRONOLOGICAL RELATIONS OF RIGHTS. 
 DUTIES, WRONGS, AND REMEDIES. 
 
 § 156. Of the Logical Relations of Rights, Duties, Wrongs, 
 and Remedies. 
 A system of laws promulgated by a lawgiver of sufficient 
 wisdom and illimitable foresight would undoubtedly com- 
 mence with a definition of rights, and thence proceed to pre- 
 scribe duties, thence to prohibit wrongs, and finally to provide 
 legal remedies. Such a system would be complete and logi- 
 cal, adapted not only to the present but to all future ages, 
 and require only implicit obedience in order to realize its 
 beneficial results. In the State which it governed the legis- 
 lative function would lie dormant, the judicial would be exer- 
 cised merely in construing its verbal mandates, the executive 
 in carrying out its invariable decrees. The knowledge of 
 the law would resolve itself into a simple act of memory, its 
 administration into a mechanical routine. But such a system. 
 of law never has existed. Attempts in that direction have 
 been made in modern as well as ancient times, and still the 
 legal reformer dreams of codes and institutes which speak the 
 final word of human law. But the lawgiver of sufficient 
 wisdom and illimitable foresight has not yet appeared and 
 never will appear, and till he comes mankind will wait in 
 vain for any complete and logical and unmistakable and 
 unamendable system of human laws. 
 
 § 157. Of the Chronological Relations of Rights, Duties, "Wrongs, 
 and Remedies. 
 The origin and development of our laws, as of the laws of 
 all known peoples on the earth, have been entirely different 
 from this. Political society has first become conscious of 
 itself and of its authority over and its responsibility for its 
 members through its contact with wrongs. In social condi- 
 tions, where all rights are respected, rights require neith< c
 
 156 AMERICAN JURISPRUDENCE. 8 158 
 
 enumeration nor definition, duties are uot prescribed, wrongs 
 are not forbidden nor remedies devised. It is only when 
 some act or omission coiitrarj' to the innate sense of reason 
 and justice attracts the attention and awakes the indignation 
 of the community, that the idea of wrong developes in the 
 popular mind and urges the popular will to exact a satisfac- 
 tion for the injury. Guided in its first impulse by the visible 
 consequence of the wrong, it visits on the guilty party an evil 
 measured by the physical evil he inflicts, demanding blood 
 for blood and life for life. And here for many ages the 
 development of law may pause, the State recognizing no 
 wrongs beyond the manifestation of physical violence to 
 person or property, and meting out their redress by the true 
 lex talionis, which is wise as well as just. But with the 
 advance of society into higher and broader conditions this 
 narrow field of wrongs widens to take in other injuries whose 
 nature is less evident, and for whose satisfaction the lex 
 talionis cannot be applied. Here an investigation of the 
 character of wrongs as such, as well as of the differences be- 
 tween them, must be made, and this compels a reference of 
 the wrongful action or omission to some standard by which its 
 nature is determined and the degree of its enormity is ascer- 
 tained. As this standard can be no other than the right in- 
 vaded by the wrong the investigation of the wrong brings the 
 State into contact with the right, which it is forced to analyse, 
 define, and formulate as the measure both of the wrong and 
 of the satisfaction it demands. And in this process the idea 
 of duty is evolved as the counterpart of the right and the 
 antithesis of the wrong, — the latest conception in the actual, 
 though the second in the logical, development of law. 
 
 Read Maine, Early Law and Custom, pp. 362-392 ; Amos, Ch. 
 iii, pp. 29-4G. 
 
 § 158. Of Legal Rights not yet Defined. 
 
 This partial and illogical evolution of the ideas of wrong, 
 remedy, right, and duty which is historically true of almost
 
 § 159 REDRESS OF WRONGS DEFINES RIGHTS. 157 
 
 every people, and is particularly so of the legal ancestors 
 from whom we spring, accounts for many peculiar phenomena 
 in our law. Among them is the fact that no complete enumer- 
 ation of legal rights has ever been attempted, but only those 
 have been defined which have already been invaded by some 
 actually occurring legal wrong. That neither in our custom- 
 ary nor our statute law a conjectural right is hinted at is, 
 therefore, no conclusive argument that it does not exist. 
 Until violated by a wrong our legislatures generally do not 
 and our courts cannot recognize it or declare it, and it may 
 thus reside in individuals and be enjoyed by them for centu- 
 ries before it falls within the conscious vision of the law. 
 Myriads of undefined and unasserted rights remain in this 
 condition to this day. Yet they are not mere natural rights. 
 Though still in embryo they are true legal rights, because 
 included in those larger legal rights which have from imme- 
 morial time been stated and protected by the law, and any 
 wrong specifically invading them would at once evoke the 
 judgment by which their legal character would be declared. 
 Read Markby, §§ 193-202. 
 
 § 159. Of the Definition of Rights by the Prohibition of 
 "Wrongs. 
 Another fact arising from the same conditions is that in 
 defining and asserting rights the law does it principally by 
 defining and forbidding wrongs. This is equally true of pub- 
 lic law and of private law. Nearly the whole body of our 
 criminal law, tor instance, consists of prohibitions; and in no 
 branch of public law outside of written constitutions, treaties, 
 and charters is there to be found any considerable number of 
 affirmative declarations of public rights. Legislative enact- 
 ments in aid of private rights are also usually directed against 
 the wrong by which the right might be invaded, and judg- 
 ments of the courts sustaining rights are always in form de- 
 cisions pointing out "and condemning actual or threatened 
 wrongs. Many rights of property and person have thus at
 
 158 AMERICAN JURISPRUDENCE. § 100 
 
 last attained a fulness of description which permits them to 
 be formulated in permanent rujes, but a far greater number 
 are still best understood by examining the torts and other 
 injuries by which they are infringed. What is true of an- 
 tecedent rights is true also of remedial. Although these have 
 been formally conferred by law, yet they have been developed 
 in detail by the correction of errors in their use rather than 
 by the elaboration of specific mandates, and the law of plead- 
 ing, evidence, and procedure owes its perfection not to the 
 genius or the foresight of the legislator, but to the criticism 
 of the judges upon the mistakes of their predecessors and 
 the bar. 
 
 § 160. Of the Study of Rights from the Standpoint of Wrongs. 
 
 The character of our legal literature is another consequence 
 of the chronological order in which wrongs and rights have 
 been defined. In the earlier as well as in the later general 
 treatises the law of wrongs and remedies occupies by far the 
 greater portion of their pages, and in some of the oldest, 
 which purport to contain the whole body of our then existing 
 law, little is to be found beyond a discussion of the unlawful 
 actions and omissions by which rights are invaded and the 
 forms of action through which they are redressed. The 
 ancient student of the law approached the subject through the 
 avenue of remedies and wrongs, not through that of rights and 
 duties; and it is still the judgment of many eminent scholars 
 that this is the true path to legal knowledge. The study of 
 law in the decided cases is only another method of the same 
 species of research, the investigation of rights and duties as 
 they are brought into view by the judicial definition and pun- 
 ishment of wrongs; and whatever success this method of 
 investigation has attained is due not to its philosophical 
 coherence but to its correspondence with the natural order m 
 which the ideas of concrete wrong and remedy and abstract 
 right and duty have been developed by experience in the 
 human mind.
 
 § 161 REDRESS OF WRONGS DEFINES RIGHTS. 159 
 
 § 161. Of the Relation of Preventive Remedies to the Defini- 
 tion of Rights. 
 Finally, the late appearance and slow recognition of the 
 value of preventive remedies is due to the same cause. The 
 visible consequences of a wrongful act suggest the character 
 and measure of the restitution which justice does and the law- 
 should require. Xo analysis of the wrong itself is necessary 
 for this purpose, nor any clear conception of the right which 
 has been violated. But for the application of preventive 
 remedies an adequate knowledge of the right to be protected 
 is an essential prerequisite. The modes in which a right 
 can be invaded may be numerous, each constituting in itself a 
 separate wrong, and the prohibition of any number of these 
 less than the whole does not afford protection to the right. 
 Yet not until the right is fully comprehended can it be known 
 by what or by how many varieties of wrongful conduct it can 
 be infringed, nor till it can be stated in its correct and per- 
 fect legal form can corresponding obligations to respect it be 
 enforced. The process of accumulating a knowledge of rights 
 through the perception and redress of individual wrongs must 
 have been long in operation before complete and accurate ideas 
 of rights could be obtained; and this result must have been 
 earlier reached in reference to some more simple or more 
 frequently invaded rights than in reference to others. And 
 hence although preventive remedies are easier of application, 
 more beneficial to society, and more consonant to reason, 
 than those which afford such compensation as is possible 
 after the wrong has been committed, they are even yet ex- 
 ceptional and are only granted where compensatory remedies 
 must evidently fail to secure justice to the person threatened 
 with the wrong.
 
 160 AMERICAN JURISPRUDENCE. § 162 
 
 CHAPTER VI. 
 
 OF THE DIVISIONS OF THE LAW. 
 
 § 162. Of the Classification of the Rules of Law. 
 
 The development of law through the recognition and redress 
 of wrongs produces in the course of ages a vast number of 
 specific rules, each formulated in connection with the wrong 
 which the rule was intended to prevent or remedy, but never 
 a complete legal system in which all legal rights and duties 
 are asserted and all possible wrongs against them are for- 
 bidden. Should such a system ever appear, it would be the 
 achievement of a State in which this multitude of rules had 
 been already promulgated and observed and by the labors of 
 her legal scholars had been in later generations compared, 
 collated, harmonized, and classified. Attempts in this direc- 
 tion were made in Egypt, according to tradition, before the 
 era of the Pharaohs, and the laws of that ancient people were 
 gathered and arranged in eight books, on which the imperial 
 sanction was bestowed. The Civil Law of Rome, after twelve 
 hundred years of evolution and experience, received the same 
 systemization under the auspices of Theodosius and Justinian. 
 But whether or not a body of laws has reached this stage, it 
 is evident that some grouping together of its rules according 
 to their natural affiliations is necessary to their profitable 
 study, since only thus can the principles upon which they 
 are based be understood and their relation to the whole body 
 of the law be ascertained. It has, therefore, been customary, 
 even with reference to laws so fragmentary as our own, to 
 relegate the specific rules to a few general divisions or classes 
 of the law, distinguished one from another by the same char- 
 acteristics which are followed in the classification of rights 
 and wrongs. These general divisions are: (1) Substantive
 
 § 163 SUBSTANTIVE AND ADJECTIVE LAW. 161 
 
 Law and Adjective Law; (2) National Law and International 
 Law; (3) Private Law and Public Law; (4) Federal Law and 
 State Law; (5) English Law and American Law. 
 
 SECTION I. 
 
 OF SUBSTANTIVE LAW AND ADJECTIVE LAW. 
 
 § 163. Of the Distinction between Substantive Law and Ad- 
 jective Law. 
 This division rests upon the same distinction which sepa- 
 rates antecedent from remedial rights. Substantive Law is 
 the law governing antecedent rights. Adjective Law is the 
 law regulating remedial rights. As every legal right is 
 either antecedent or remedial, every rule of law falls under 
 one or the other of these divisions. Quite as properly, per- 
 haps, these groups might have been designated by the same 
 names as the rights which they define, and have been called 
 "antecedent law" and "remedial law," but clearness and 
 convenience are subserved by giving them different appella- 
 tions although the meaning may be almost identical. A thing 
 is substantive when it exists in and of itself and for its own 
 sake; adjective, when it is collateral to and dependent upon 
 something else for whose sake it was created and remains in 
 being; as in grammar, a substantive is a name denoting a 
 person or thing, an adjective is the name of a quality or 
 circumstance which attaches to or affects the person or thing. 
 An antecedent right is substantive; it exists of itself and for 
 its own sake. A remedial right is adjective; it depends upon 
 the antecedent right and is called into being only to protect 
 or vindicate it. The two members of this division of the law 
 thus take their character from that of the rights which they 
 assert, and not from anything peculiar to the nature of the 
 law. Substantive Law comprises the whole body of law- 
 except those which are concerned with the administration 
 of remedies; these fall under the head <>t Adjective Law.„ 
 
 Read Holland, Ch, vii. ]>. 7*: Austin. Lect. xlv. pp. 7<iO-77J. 
 11
 
 162 AMERICAN JURISPRUDENCE. §§ 164, 165 
 
 § 164. Of the Rules of Substantive Law. 
 
 The rules included under substantive law are found in every 
 other division into which the rules of law are grouped. By 
 them are defined and asserted the rights of nations both in 
 peace and war, the rights of States and citizens against each 
 other, the rights of citizens among themselves. The law of tort 
 and contract, of property and crimes, of natural and artificial 
 persons, of family and fiduciary relations, the law expressed 
 in constitutions and treaties, the binding usages and customs 
 of the maritime and mercantile world, are all alike concerned 
 with antecedent rights and form some portion of substantive 
 law. The impossibility of gathering all these rules together 
 and discussing them in a continuous treatise must always 
 render this division of law into substantive and adjective 
 of less practical importance than the other divisions hereafter 
 to be mentioned, though to the jurist, investigating the inhe- 
 rent justice, permanency, and value of the rules of law, sub- 
 stantive law, which is the direct expression of the law of 
 nature, must ever be superior to adjective law, which is the 
 offspring of emergencies and is necessarily imperfect and 
 ephemeral. 
 
 § 165. Of the Rules of Adjective Law. 
 
 Adjective law also comprises rules which are found in both 
 members of every other classification of the law. Substantive 
 law is always liable to disobedience and none of its provisions 
 is beyond the possibility of invasion by a wrong. Answering 
 to the right and awaiting its violation, therefore, ever present 
 is the remedy, between nations, between States and citizens, 
 between individuals. The laws of war, the law of criminal 
 procedure, the law of private actions and defences, accompany 
 with equal step the law which asserts the antecedent rights 
 of independent sovereignty, of constitutional supremacy, of 
 personal security and liberty, of property and domestic peace. 
 But though the adjective law is thus no less ubiquitous than 
 substantive law, the variety and number of the rules which 
 it includes are comparatively limited. Those which govern
 
 § 166 NATIONAL AND INTERNATIONAL LAW. 163 
 
 hostile nations in their movements of aggression and defence, 
 the rules of courts, of civil and criminal proceedings, of plead- 
 ing, evidence, and damages, of preventive and extraordinary 
 remedies, occupy the entire field of adjective law and could 
 be sufficiently expounded in a few volumes of very moderate 
 dimensions. 
 
 Read Holland, Ch. xv, pp. 314-320. 
 
 SECTION II. 
 
 OF NATIONAL LAW AND INTERNATIONAL LAW. 
 
 § 166. Of the Source of National Law. 
 
 National or Municipal Law is that body of rules by which a 
 State asserts and protects its own rigfits against its citizens 
 and their rights against it and against one another. Inter- 
 national Law is that body of rules which regulates the inter- 
 course of independent nations. In these two classes also all 
 law is comprised. Both contain provisions of adjective as 
 well as substantive law. National Law emanates from the 
 supreme authority in the State for which it is prescribed, not 
 necessarily from the legislative body technically so called, but 
 from any person or group of persons exercising the law- 
 making and defining power. A rule of law formulated for the 
 first time by a court acting within its lawful jurisdiction is, 
 as to the controversy which it governs, the product of legisla- 
 tive authority as truly as though enacted in the form of a 
 statute, and if accepted and followed by other courts, becomes 
 at last a part of the universal as well as of the supreme law 
 of the land. It is for every State to determine where such 
 authority shall be Lodged and how it shall be exerted, and 
 it may and often does confer it upon individuals or commu- 
 nities whose legislative action is thereby made as binding 
 as its own. In the very nature of things, the law-making 
 power is the supreme power in the State, and by whomsoever 
 laws enn lawfully be made, in him or them, so far as the per-
 
 104 AMERICAN JURISPRUDENCE. § 167 
 
 sons subject to such laws are concerned, does sovereignty 
 
 reside, (a) 
 
 Read 1 Bl. Com., pp. 44-46. 
 
 (a) 37 D. 52 (55-57) ; 27 St. 106 (113, 114). 
 
 § 167. Of the Authority of National Law over the State. 
 
 National law imposes obligations on the State as well as on 
 the citizen. The theory that the State is impersonal and con- 
 sequently has no legal rights or duties is not recognized in 
 our law. The State is a political community composed of 
 citizens acting through their representatives lor their mutual 
 advancement and protection, and whether contemplated as the 
 entire community or as the group of representatives by whom 
 the power of the community is wielded, the purposes for 
 which the community exists and its powers are exercised re- 
 strict the right of the State to act and to forbear within the 
 compass of. those measures which are conducive to the common 
 good, (a) This restrictive law is not imposed upon the State 
 from without, nor by the State itself after it formally becomes 
 a State, but is established and is made effective by the very 
 act of the community in assuming political authority and 
 asserting for itself the sovereignty which is the essential attri- 
 bute of a State, (b) Not that any compact between the mem- 
 bers of the community need have been made, nor any date be 
 ascertainable when the community became a State; the fact 
 that it now claims and exercises sovereignty is, in our theories, 
 a sufficient proof that it received its sovereignty in trust for 
 the people over whom it rules and must exert its powers solely 
 for their individual and collective benefit, (c) Whether the 
 State then be regarded as a determinate or an indeterminate 
 person it owes duties and possesses rights, the general char- 
 acter of which is fixed by the purposes for which the State 
 exists, while their specific elements and obligations are left 
 to be enumerated in the laws which, as at once preserving and 
 applying its governmental powers for the benefit of its people, 
 the State from time to time adopts. Thus the State neces- 
 sarily embraces in its national law the definition and assertion
 
 §§ 1G8, 169 NATIONAL AND INTERNATIONAL LAW. IGo 
 
 of its own rights and obligations as well as those of its citi- 
 zens,- and equally with them regards itself as bound by its 
 own laws. 
 
 Read Dillon, Lect. viii, pp. 224-228. 
 
 (a) 15 St. 400 (40:3-405); 16 St. 813 (815); 20 D. 360 
 
 (372-374) : 79 D. 236. 
 
 (b) 35 D. 320; 95 D. 350. 
 (V) 79 D. 123 (131, 132). 
 
 § 168. Of the Authoiity of National Law over the Citizen. 
 
 The obligations imposed by national law upon the citizens 
 of the State extend to all their intercourse and relations with 
 the State and with one another. It also reaches to their acts 
 and forbearances in reference to other States so far as these 
 may involve the amicable or hostile attitude which they may 
 occupy toward his own State. In time of war many acts 
 otherwise lawful and perhaps commendable assume a treason- 
 able character when the actor is a subject of either of the 
 combatants, and are still crimes, though lesser ones, when he 
 is the subject of a neutral State. In time of peace seditions 
 and conspiracies conducted in his own country against a 
 foreign State are breaches of international comity and may be 
 prohibited and punished by the State where they occur. Thus 
 the field of national law embraces all the rights and duties 
 of private persons and all the rights and obligations of public 
 persona except those which one State may possess against 
 another. 
 
 Read 1 Whart. I. L. Dig. §§ 18-21; 2 Whart. I. L. Dig. 
 §§ 268-282. 
 
 § 169. Of the Authority of Two or more National Laws in 
 the Same State. 
 In States composed of minor States confederated together 
 in a common nation, of which the United States is an exam- 
 ple, the nation and each different State may have its own 
 peculiar national law. To render this possible, the field of 
 national law must be divided, certain matters being subject to
 
 .160 AMERICAN JURISPRUDENCE. §§ 170, 171 
 
 the jurisdiction of the nation and to be governed by its law, 
 others being placed within the jurisdiction of the individual 
 States to be regulated by their respective laws. Within the 
 topical jurisdiction of each one of these sovereignties its law 
 is supreme, and the citizen is directed in his conduct by one 
 law or the other, according to the nature of his act or the 
 object to which it relates. As against one another these 
 minor States may be independent sovereignties, the common 
 national law by which they are controlled in their reciprocal 
 relations discharging as to them the functions of an inter- 
 national law, though as to the nation to which they alike 
 belong it is still a national law. 
 
 § 170. Of the Territorial Jurisdiction of National Law. 
 
 National law has no force beyond the territory of the sover- 
 eign by whom it. is prescribed, (a) Over the country which 
 he governs and over other places which the law presumes to 
 be part of his territory, such as the vessels which sail under 
 his flag, and no farther, its authority extends, (b) In other 
 States its rules may be noticed and obeyed, as an act of inter- 
 national comity, in reference to controversies which for any 
 reason ought to be governed by its laws rather than by the 
 laws of the State where they arise; but even this courtesy is 
 optional with the latter State, though now so customary that 
 it can scarcely be refused. Between the different States of 
 our own Union this recognition is obligatory under the provi- 
 sions of the Federal Constitution. 
 
 Read 1 Kent, Lect. ii, pp. 21-23, 29-31; Story, Conf. L. §§ 18- 
 22 ; 1 Whart. I. L. Dig. §§ 1, 9, 26-33. 
 
 (a) 54 D. 630; 79 D. 440; 21 D. 89; 16 Pet. 367; 25 D. 
 
 745; 36 D. 458. 
 
 (b) 32 D. 114; 43 D. 180; 74 D. 703; 7 Cranch, 116. 
 
 § 171. Of International Law. 
 
 international Law is that body of rules which defines and 
 protects the rights of independent States as against one an-
 
 § 171 NATIONAL AND INTERNATIONAL LAW. 1G7 
 
 other. Although not law in the sense that it is formally pre- 
 scribed by any political superior to whom the States bound 
 by the law are subject, yet in the sense that it is a rule impos- 
 ing duties and obligations which the .States in their political 
 character are bound to observe, and will unite to enforce, it 
 is law by which certain legal rights are asserted and wrongs 
 against those rights are redressed. As such it is based upon 
 the law of nature, and is therefore referable to the eternal law. 
 For it is manifest that all mankind cannot now be grouped 
 together 'into one State, and consequently that for their social 
 preservation and development many States must exist; that 
 these States must have some reciprocal relations and conse- 
 quently some intercourse with one another; that national in- 
 tercourse cannot peacefully subsist without some norm or 
 rule of national action and forbearance recognized by the re- 
 lated nations and on which each can rely in determining its 
 own acts and omissions. And as this distribution of man- 
 kind into many nations, this necessity for mutual intercourse, 
 and this impossibility of continued peaceful intercourse with- 
 out law are all facts resulting from the operation of the 
 natural law, the law which governs international intercourse 
 is the legitimate and inevitable offspring of the law of 
 nature and receives from it a sanction and authority co- 
 extensive with the power which the promotion of good order 
 among nations compels it to exert. It is true that all actual 
 power over independent States resides in the community of 
 States to which these independent States belong, and thus the 
 governing body and the governed appeal to be the same. 
 But this is equally true of individual States considered with 
 reference to their own subjects. The State is ruled by its 
 own laws in pursuance oi the obligations assumed by it in 
 becoming a political Bociety ami charging itself with the pro- 
 tection ami advancement of its citizens. By the same act of 
 becoming a State and entering into the family of nations, 
 every State submits itself to the rules dictated by the natural 
 law concerning the mutual intercourse of States and under- 
 takes to co-operate with other States in the enforcement of 
 these rules. The right of one State to set at defiance all obli-
 
 168 AMERICAN JURISPRUDENCE. § 172 
 
 gations of justice and reason toward other States has never 
 been admitted for a moment as a practical doctrine for the 
 guidance of international relations, and if some States have 
 acted in this manner it has been tolerated only because the 
 other members of the family of nations were too weak to in- 
 terfere. The independence of a State consists in its right to 
 exercise unrestricted political sovereignty over its own people, 
 not in its right to disregard its national obligations toward 
 other States, and whatever may be our theory concerning the 
 presence or absence of any visible political sanction for the 
 law of nations, the transgression of any State against its 
 rules is liable to meet with an indignant protest from the 
 other States, the disregard of which is a sufficient provoca- 
 tion for immediate war. 
 
 Read Wilson, Part i, Ch. iv ; Walker, Lect. xli ; Amos, Ch. xii, 
 pp. 322-359. - 
 
 § 172. Of the Origin and Development of International Law. 
 
 The rules of international law first appear as usages or 
 customs which, in obedience to their innate instincts of jus- 
 tice and utility, the nations have followed in their intercourse 
 with one another. As time and experience have ratified the 
 dictates of these instincts and proved the wisdom of these 
 usages, the rules which they have practically applied have 
 come to be regarded as inviolable, and when disputed by one 
 State have been affirmed by the united judgment of the rest. 
 In such affirmations and by other methods recognition has 
 been given by the family of nations to one after another of 
 these customs, the rules which they embody have been clearly 
 expressed, and in determining subsequent controversies in 
 reference to them they have been copiously illustrated and 
 explained. In this manner international law, without any 
 formal enactment or promulgation, has gradually assumed the 
 character of a fixed body of law, with its appropriate sub- 
 divisions, which is now amply set forth in the works of
 
 § 173 NATIONAL AND INTERNATIONAL LAW. 169 
 
 learned jurists, the decisions of courts, the treaties between 
 States, and the awards of international arbitrations, (a) 
 
 Read Vattel, Preface, pp. vii-xvii, Prelim., §§ 1-28; 1 Kent, 
 Lect. i, pp. 1-20, Lect. iii, pp. 69-71. 
 (a) 175 U. S. 677. 
 
 § 173. Of the Territorial Jurisdiction of International Law. 
 
 International law applies only to States and to those States 
 which have a place among the family of nations. Not every 
 political society is a State and not every State is necessarily 
 a member of the family of nations. Any association of per- 
 sons not already subjects of a State, who are organized for the 
 purpose of protecting their common and individual rights of 
 security, liberty, and property by the enactment and enforce- 
 ment of certain laws, is a political society; but such a society 
 is not a State unless endowed with complete sovereignty over 
 its members, although it does possess political and legal in- 
 stitutions and exercises its authority through an established 
 form of government. A sovereign State, having unlimited 
 dominion over its own people, may never have been recog- 
 nized by other nations as an independent State, either be- 
 cause of its recent origin, its precarious existence, its attitude 
 toward one or more of their own number, or the intrinsic 
 antagonism between its political purposes or theories and 
 theirs; and so it may remain outside the family of nations 
 until they see fit to admit it. Until our own historic period 
 this family embraced only the so-called Christian nations, 
 but is now gradually extending to include all independent 
 States with whom commercial interests require that inter- 
 national relations shall be maintained. On all the States 
 within this family international law is binding. All have 
 adopted it as a part of their own national law so far as it 
 imposes obligations on their private citizens, and cannot alter 
 it by any legislative action nor depart from it in a decision of 
 their courts. 
 
 Read Holland, Ch. xvii. pp 343-848, Ch. xviii. pp. 378,379; 
 1 Whart. 1. L Dig. § 8.
 
 170 AMERICAN JURISPRUDENCE. §§ 174, 175 
 
 § 174. Of the Topical Jurisdiction of International Law. 
 
 International law decides all questions between independent 
 States so far as its own doctrines and rules have been devel- 
 oped. New rules and doctrines can arise only by custom or 
 common consent, and outside the limits to which usage and 
 compact have already brought the law nations must determine 
 their controversies by concession, by arbitration, or by war. 
 The principles of reason, justice, and equity which it applies 
 to States are 'the same which national law applies to individ- 
 uals. The subjects which it has thus far brought within its 
 control are chiefly these: the right of a political, society to 
 be a State and a member of the family of nations; the right 
 of a State to its national honor and reputation ; the jurisdic- 
 tion of States over property beyond their own borders; the 
 immunities of subjects; the exercise of treaty powers; the 
 modes of civilized warfare; and the status, rights, and obli- 
 gations of belligerents and neutrals. 
 
 Read Holland, Ch. xvii, pp. 348-357; Woolsey, §§ 222-231. 
 
 SECTION III. 
 
 OF PRIVATE LAW AND PUBLIC LAW. 
 
 § 175. Of the Distinction between Private Law and Public Law. 
 
 The division of law into Private Law and Public Law is 
 one of the most ancient modes of classifying law and is 
 based upon the distinction between private and public rights. 
 Private rights are defined and enforced by Private Law ; public 
 rights by Public Law. All bodies of law fall under one or 
 the other of these divisions, though some writers exclude in- 
 ternational law from both, and divide the law into three 
 classes, — private, public, and international, — not because 
 the rights governed by international law are neither public nor 
 private, but because they do not regard international law as 
 law at all in the same sense that national law is law, to which 
 they confine the distinction between Public and Private Law. 
 Whatever may be the correctness of their claim as to the
 
 §§ 17G, 177 PRIVATE AND PUBLIC LAW. 171 
 
 character of international law as law, their threefold division 
 of the law is incorrect, since the principle of differentiation 
 which separates Public Law from Private Law is not the same 
 as that which distinguishes international law from law truly 
 so called. Law of every kind is wholly occupied with rights, 
 anil every right is either public or private, and consequently 
 every rule of law is a rule of Public Law or a rule of Private 
 Law. 
 
 Read Markby, §§ 291-295; Austin, Lect. xliv, pp. 744-759. 
 
 § 176. Of the Divisions of Private Law. 
 
 Private law is divisible into: (1) The law of Personal 
 Rights; (2) The law of Family Rights; (3) The law of Prop- 
 erty Eights; (-4) The law of Private Wrongs; (5) The law of 
 Private Remedies. The first four of these are branches of 
 substantive law; the last is adjective law. The law of Per- 
 sonal Rights comprises the rules deiining and asserting the 
 rights of personal security and liberty. The law of Family 
 Rights embraces the rules governing those rights both in rein 
 and in personam which arise out of the domestic relations. 
 The law of Property Rights includes all legal provisions re- 
 lating to the acquisition, ownership, possession, and transfer 
 of any species of property, corporeal or incorporeal. The law 
 of Private Wrongs covers every violation of private rights, 
 whether by breaches of contracts, or by tortious acts, or by 
 tortious forbearances. The law of Private Remedies directs 
 all methods by which the law endeavors to prevent or to afford 
 redress for private wrongs. These divisions of Private Law- 
 farther divide and sub-divide into many branches as the 
 details of the rights or wrongs or remedies to which they 
 pertain are subjected to a more minute examination. 
 Head Markby, §§ 296-3n»;. 
 
 § 177. Of the Relation of Private Law to National Law and 
 International Law. 
 Private Law is always national law. Certain priviL 
 which private citizens possess to avail themselves in one
 
 172 AMERICAN JURISPRUDENCE. § 178 
 
 State of the laws of another State in reference to their per- 
 sonal status, or their contracts or other property, have been 
 sometimes grouped under the name of Private International 
 Rights, and the rules which govern them have correspond- 
 ingly been called Private International Law. But this is so 
 violent a misuse of the term "international" as to have 
 merited and received the severest criticism. The comity 
 which permits the enjoyment of such privileges may be 
 within the sphere of international law, but the comity is 
 public between State and State and not between the State and 
 any private foreign citizen, and that he receives the privilege 
 is not the consequence of any private right which he possesses 
 against either State, but of the international relations which 
 the States have assumed toward each other. The law which 
 recognizes and directs the mode in which the privilege may 
 be made available is a portion of the private national law, 
 belonging partly to the laws of personal, family, and property 
 rights, and partly to the law of remedies, and when discussed 
 as a separate subject is usually treated under the title of 
 "Couflict of Laws," or perhaps more properly the "Jurisdic- 
 tion of Laws. ' 
 
 § 178. Of the Divisions of Public Law. 
 
 Public Law is divisible into: (1) International Law; (2) 
 /Constitutional Law; (3) Administrative Law; (4) The Law 
 /of Public Wrongs; (5) The Law of Public Remedies. In- 
 ,' ternational Law is the law which defines the mutual rights 
 of independent States. Constitutional Law asserts the duties 
 of the State toward itself and its own citizens and the ob- 
 ligations toward it which are imposed upon its members. 
 Administrative Law regulates the various governmental 
 operations of the State. The Law of Public Wrongs prohibits 
 specified actions and omissions as violations of public rights. 
 The Law of Public Remedies controls the measures adopted 
 by the State for the prevention, punishment, or rectification 
 of public wrongs. International Law and Constitutional Law 
 are generally treated by jurists as single departments of the
 
 § 179 FEDERAL AND STATE LAW. 173 
 
 law, although each is divisible according to the subjects which 
 it includes. Administrative Law comprises Parliamentary 
 Law, or the rules which govern the proceedings of legislative 
 assemblies; Revenue Law, or the rules which provide for the 
 financial support of the State by its citizens; Ecclesiastical 
 Law, or the rules which fix the relations between the State 
 and religious bodies, and where there is an established church 
 control also its internal affairs; Military Law, or the rules 
 which regulate the military and naval forces of the State; 
 Martial Law, or the rules framed by a military commander 
 occupying hostile or insurgent territory for the government of 
 the inhabitants of that territory when the ordinary laws are 
 set aside by violence and the usual course of justice is im- 
 peded; and whatever other laws, such as police laws, poor 
 laws, labor laws, postal laws, banking laws, and school laws, 
 the economic, sanitary, or commercial condition of the State 
 may demand. The Law of Public Wrongs embraces Criminal 
 Law, and also such special prohibitions as the State directs 
 against actions and omissions which, though not possessing 
 the essential elements of crime, are prejudicial to the common- 
 wealth. The Law of Public Remedies includes Criminal 
 Procedure and whatever other measures the State employs to 
 ward off or redress a public wrong. 
 
 Read Holland, Ch. xvi, pp. 321-340. 
 
 SECTION IV. 
 
 OF FEDERAL LAW AND STATE LAW. 
 
 § 179. Of the Distinction between Federal Law and State Law. 
 The three foregoing divisions pertain to all law; the two 
 following to the law as it now exists and is administered in 
 the United States. Of these two the first is the division 
 between State Law and Federal Law. State Law, as the 
 phrase is here employed, signifies the local law in force in 
 the several States of the American Union. Federal Law is the 
 general law of the United States considered as a nation, and
 
 174 AMERICAN JURISPRUDENCE. § 180 
 
 Is m force wherever that national authority extends. State 
 Law emanates from the supreme power in each State, governs 
 only that State and its citizens and the persons and property 
 within its borders, and governs these only with reference to 
 matters which are not of a national but of a purely local 
 character. Federal Law emanates from Congress and from 
 other official bodies or persons exercising the legislative 
 authority of the United States, and' governs the United States 
 and every State, and all the people and property within the 
 territory of the United States, in reference to matters of a 
 national character. Thus within every State of the American 
 Union there exist two distinct systems of law, differing from 
 each other in the sovereignty by which they are prescribed 
 and in the subjects-matter to which they relate, but each of 
 paramount authority within the sphere to which it is 
 confined. 
 
 Read Dillon, Lect. viii, pp. 216-223; Cooley, C. Law, Ch. ii, 
 pp. 33-35, Ch. vi, pp. 152-155, 157-159; Walker, Lect. 
 v, ix, x. 
 
 § 180. Of the Territorial Jurisdiction of Federal Law and 
 State Law. 
 Included within the territory of the United States are the 
 fully organized States of the Union, the organized Territories, 
 the District of Columbia, and other countries and populations 
 not yet having a separate organic political existence. With 
 the exception of the District of Columbia and the organized 
 States all these are States in their formative period; some, 
 like the organized Territories, approximating statehood; 
 others just emerging from barbaric disorder into civilized 
 life. The District of Columbia and the unorganized territory 
 have no local law, but are governed entirely by the provi- 
 sions of the Federal Law. The organized Territories possess 
 local legal systems more or less elaborate, but these are 
 dependent for their authority and sanction on the Federal 
 Government, and though they resemble State Law in the fact 
 of their local application, yet, in view of the source from
 
 § 181 FEDERAL AND STATE LAW. 175 
 
 which they are ultimatel}" derived and the power by which 
 they are enforced, they belong properly to Federal Law. (u) 
 
 Read Cooley, C. Law, Ch. ii, pp. 37, 38, Ch. viii. pp. 182-186; 
 1 Whart. I. L. Dig. §§ 2, 3. 
 (a) 158 U. S. 564; 101 U. S. 120; 19 How. 393 (446- 
 450); 1 Pet. 511. 
 
 § 181. Of the Topical Jurisdiction of Federal Law and State 
 Law. 
 The distinction between State and Federal law thus exists in 
 its completeness only in reference to the fully organized and 
 duly admitted States of the American Union, and in these 
 this distinction is based on the subjects-matter over which 
 the sovereignties of the United States and of the individual 
 States respectively exercise jurisdiction. The authority of 
 the United States extends to all subjects of a national char- 
 acter, of the individual States to all subjects not of a national 
 character. This line of demarcation, so easily expressed in 
 words, is in its practical application of constantly increasing 
 difficulty. That all matters pertaining to the relations of the 
 United States to other nations or to the mutual relations of 
 the States of the Federal Union, and all matters placed within 
 the exclusive control of the United States by the express 
 language of the Federal Constitution or its necessary impli- 
 cations, are of a national character admits of no question. (<t) 
 That the mode in which an individual State shall discharge 
 its legitimate legislative, judicial, and executive functions, 
 the measures it adopts for the protection of the security and 
 liberty of its own citizens, the rules which govern the acqui- 
 sition and transfer of property, especially of real property, 
 and the wrongs of which it will take notice as offences against 
 itself, together with the punishment which it will inflict for 
 them, are matters not of a national character is equally evi- 
 dent, (b) But between the matters so clearly separated from 
 one another there is a wide field of rights and duties not 
 strictly national in their intrinsic character and yet of such 
 grave and universal importance to the whole people of the
 
 176 AMERICAN JURISPRUDENCE. § 182 
 
 United States as to be national in the effects which any law 
 or decision concerning them may produce. Into this field, 
 formerly regarded as within State authority alone, the law of 
 the United States in pursuance of most liberal interpretations 
 of the Federal Constitution is gradually extending, and with 
 the increasing intimacy of commercial and community rela- 
 tions between our people, and the consequent homogeneity of 
 political ideas and institutions irrespective of State lines, 
 must continue to extend until every interest which is common 
 or identical to all the inhabitants of the United States shall 
 be governed by one uniform law, which can be no other than 
 a Federal law. (c) How much of State Law will remain, out- 
 side of its internal political regulations, after this period of 
 our legal development is reached it is idle to conjecture. It 
 is of less moment to the citizen from what authority the laws 
 which govern him proceed than that such laws be permanent, 
 consistent, wise, and just. 
 
 Read Cooley, C. Law, Ch. iv. pp. 66-83, Ch. ix, pp. 187-195. 
 
 (a) 11 Pet. 102 ; 95 D. 350 ; 149 U. S. 698 (711-713) ; 21 
 
 How. 506 ; 4 Wheat. 316 ; 9 Wheat. 203 ; 175 U. S. 
 211. 
 
 (b) 169 U. S. 366 ; 97 D. 248, note; 1 R. 399 ; 35 D. 326; 
 
 92 D. 468; 95 U. S. 465. 
 (c-) 16 Pet. 1 (18, 19) ; 96 D. 73. 
 
 § 182. Of the Concurrent Topical Jurisdiction of Federal Law 
 and State Law. 
 Within the intermediate field of rights and duties above 
 mentioned there are many which at present are conceded to 
 be under the authority both of the United States and the in- 
 dividual State, and consequently to be proper subjects-matter 
 as well of State as of Federal Law. But State and Federal 
 authority do not in reference to such matters stand on equal 
 ground. If they did, a conflict might arise between them 
 which would be irreconcilable. On all such matters the 
 authority of the United States is superior to that of any or 
 all individual States. Until the United States has taken
 
 § 183 FEDERAL AND STATE LAW. 177 
 
 cognizance of these subjects and enacted laws concerning 
 them, each State may treat them in its own territory as under 
 its jurisdiction and may make and apply laws for their admin- 
 istration. But when Federal Law has once embraced them 
 State Law ceases to have any force concerning them until the 
 Federal Law has been repealed. Instances of such superior 
 authority in Federal Law are seen in the supersession of State 
 insolvent laws by a national bankruptcy act, in the exercise 
 of State authority over certain navigable waters until the 
 United States assumes control over them, and in the removal 
 of causes from the State courts into the Federal courts, at 
 the demand of either party, when they involve the interpre- 
 tation of the Acts of Congress or the Constitution of the 
 United States. («) 
 
 Read 1 Kent, Lect. xviii, pp. 3S7-395; Cooley, C. Law, Ch. ii, 
 pp. 35, 30, Ch. iv, pp. 83-85. 
 (a) 70 D. 151; 4 Wheat. 122; 7 D. 106; 95 U. S. 459; 
 113 U. S/205. 
 
 § 183. Of the Judicial Application of Federal Law and State 
 
 Law. 
 Both Federal Law and State Law are administered in all 
 the courts of the United States and of the individual States. 
 No doubt a great proportion of the cases raising questions of 
 Federal Law are heard and determined in the Federal courts, 
 and by far the greater number of questions as to the law of 
 any State are adjudicated in the courts of that State. But 
 this is the result of circumstances, not of legal requirement. 
 Whenever the courts of the United States in the trial of 
 causes are called upon to interpret and apply a purely local 
 State law under which the rights of the parties have been 
 acquired, as distinguished from the general or commercial 
 law, they give to it the same construction which it has re- 
 ceived in the State of its enactment, and apply it as it would 
 have been applied had the suit been prosecuted in the local 
 courts, (n) Similarly a State court, meeting in a case before 
 it with a question of Federal Law. accepts the decision of the 
 
 12
 
 178 AMERICAN JURISPRUDENCE. §1^4 
 
 question already made or likely to be made by the courts of 
 the United States, and passes judgment on the case in view 
 of that decision, (b) By thus keeping inviolable the doctrines 
 of the Federal Law and of the State Law by whatsoever court 
 they may be administered, and by recognizing the superiority 
 of Federal Law over all matters concerning which there can 
 be any question as to rightful jurisdiction, serious conflicts 
 between the State Law and the Federal Law have been almost 
 entirely prevented, and those which have arisen have been of 
 a political rather than a legal character. 
 
 Read (a) 107 U. S. 20 (33, 34) ; 125 U. S. 555 (582-585) ; 12 
 Wheat. 153; 11 Wheat. 361; 4 Wall. 196(203, 
 204) ; 8 Wall. 575; 5 Pet. 398; 165 U. S. 593. 
 (b) 37 D. 761 ; 40 D. 705 ; 55 D. 494. 
 
 SECTION V. 
 
 OF ENGLISH LAW AND AMERICAN LAW. 
 
 § 184. Of the English Portion of our Law. 
 
 The division of our law into English Law and American 
 Law results from the derivation of our law from two quite 
 distinct sources. Prior to the Revolution the people of this 
 country were governed by the law of England, so far as its 
 rules were applicable to their circumstances, together with 
 such statutes as the colonial legislatures might enact. The 
 law of England was then composed of the ancient maxims 
 and definitions of the common law, the great Charters of the 
 Crown and Acts of Parliament, and the decisions of the 
 various English courts. Taking its name from its origin, 
 this entire body of law was and is called the "common law," 
 not in this case to distinguish it from the Civil or Roman Law 
 or from the "written law," but from the rules of law origin- 
 ating in the United States. Under this law the colonists had 
 lived for five generations, when the Declaration of Indepen- 
 dence severed their connection with the mother country and 
 erected the several colonies into independent States. But 
 this severance wrought no special change either in their
 
 §§ 185, 186 ENGLISH AND AMERICAN LAW. 170 
 
 private legal rights and duties or in their ideas as to the 
 proper methods of enforcing or protecting them. The same 
 system of law which had answered their purposes and gov- 
 erned their conduct while subjects of the British sovereign 
 corresponded to their needs when that sovereignty was trans- 
 ferred to local governments of their own creation, and thus 
 became the law of the new nation as it embarked upon its 
 independent political career. («) 
 
 Read Dillon, Lect. v, pp. 155-157, Lect. xiii, pp. 350-388. 
 (a) 23 D. 280 (290-291). 
 
 § 185. Of the American Portion of our Law. 
 
 Upon this foundation of the English Law both the public 
 and the private law of the United States was gradually 
 raised. New conceptions of the nature, attributes, and resi- 
 dence of sovereignty, new conditions of public and private 
 affairs, have found expression in rules by which the English 
 law of 1770 has been in many respects modified, extended, 
 or superseded, and these rules constitute the American as dis- 
 tinguished from the English Law. They are contained in our 
 written State and Federal Constitutions, in local statutes and 
 Acts of Congress, and in the reported judgments of our courts. 
 But even in these documents the English and American Laws 
 are intimately blended. The new provisions are but shoots 
 or scions sprouting from or grafted into the ancient tree. The 
 trunk and stem are still the venerable and imperishable 
 system of the old English common law, sprung from the soil 
 and nourished by the spirit of a people whose regard for 
 personal liberty and whose practical wisdom in the conduct 
 of affairs have never been surpassed among the sons of men. 
 
 § 186. Of the Extent to which English Law now Enters into 
 our Law. 
 
 To what extent the doctrines of the English Law, as it 
 existed at the time of the Revolution, now prevail in our 
 American States is a matter of some uncertainty. Where
 
 180 AMERICAN JURISPRUDENCE. § 187 
 
 any of its rules are formulated in our statutes or incorporated 
 in our Constitutions or adopted and applied by our courts, 
 they are, of course, part of our local law. Where any State 
 has framed for itself, by legislative or judicial action, a new 
 law partially or wholly inconsistent with the corresponding 
 mandate of the English Law, the new rule supersedes the Eng- 
 lish rule, if indeed that rule was ever recognized. But where 
 a State has as yet taken no position in favor of or against the 
 English rule, and questions are raised which the courts of 
 that State could, if they would, refer to the English rule, 
 their determination is controlled by the same principle which 
 influenced the colonists in their acceptance or rejection of the 
 common law. If in the circumstances of the case the Eng- 
 lish rule is just and consonant with the usages of the people 
 of the State, it is regarded as having always been a part of 
 the common law of the State and is enforced accordingly, (a) 
 Read (a) 19 St. 364; 62 D. 742. 
 
 § 187. Of the Dependence of the American Portion of our 
 Law upon the English Portion. 
 This distinction between the rules of law originating in 
 this country and the rules of law derived from England is not 
 obliterated by the adoption of the English rules by our own 
 courts and legislatures. True, these rules then become a 
 portion of our law, but they do not thereby cease to be dis- 
 tinguished from its other portions by several important char- 
 acteristics. In the first place, the English Law is in a certain 
 sense superior to the American, as the trunk and root are 
 superior to the grafted branches of the tree. Thus the Eng- 
 lish Law furnishes a standard of interpretation to the Ameri- 
 can Law as to all terms and phrases which had acquired a 
 settled meaning in the English Law prior to the Revolution, 
 unless it is apparent that American lawgivers have intended 
 that they should be differently understood. The English Law 
 is also regarded as the law governing all cases for which no 
 rule of the American Law has been hitherto provided, unless 
 the English rule has been formally repudiated or a rule in-
 
 § 188 ENGLISH AND AMERICAN LAW. 181 
 
 consistent with it is now announced. Again, an English rule, 
 once recognized, remains in force notwithstanding the enact- 
 ment of an American rule covering the same subject, unless 
 the latter rule expressly or impliedly excludes the former, for 
 an American rule in derogation of an English rule is always 
 construed strictly so as to leave as far as possible the opera- 
 tion of the English rule unimpaired. Finally, whenever the 
 American Law confers a right, whether it be a public or a 
 private right, and yet supplies no remedy for its violation 
 the public wrong is to be punished or the private wrong 
 redressed according to the methods afforded by the English 
 Law. (a) 
 
 Read Black, Ch. viii, §§ 94-99. 
 
 (a) 11 Pet. 120 (545, 546); 91 U. S. 270; 169 U. S. 649 
 (654, 655) ; 49 D. 697. 
 
 § 188. Of. the Interpretation of the English Portion of our Law 
 by the English Decisions. 
 In the second place, the distinction between the English 
 Law and the American Law manifests itself in the authority 
 which attaches to the decisions of the English courts as inter- 
 preters and expounders of these two component portions of 
 our law. In reference to a rule originating in this country 
 an English case has no binding authority, even when a simi- 
 lar rule exists in England and is explained and applied in 
 that particular case, although the case may be considered by 
 our courts and will influence them according to its intrinsic 
 merits. But in reference to a rule derived from the English 
 Law a case decided in England before the Revolution is of 
 binding authority with our judges also, until formally and 
 intentionally overruled, and cases decided since the Revolu- 
 tion are entitled to respect although not of the same obligation 
 as their predecessors. Thus the English treatises, statutes, 
 and reports prior to 1770 are an essential part of our own 
 legal literature, and keeping in view those variations in our 
 circumstances which affect our legal conditions and relations, 
 are the sources from which our knowledge of the English
 
 182 AMERICAN JURISPRUDENCE. § 189 
 
 portion of our law is drawn. That Blackstone's Commenta- 
 ries contain a summation of the English Law as it existed 
 at the date when it became incorporated with our own, is a 
 sufficient reason, apart from the many other excellences of 
 that unrivalled production, for its universal acceptance and 
 authority among the lawyers and jurists of the United 
 States, (a) 
 
 Read Dillon, Lect. xi, pp. 297-313. 
 (a) 43 D. 373 (382, 383). 
 
 § 189. Of the American States in which the English Law has 
 been Adopted as a Portion of their Law. 
 What has thus far been stated concerning the relations of 
 the English and American Law is true of the original thirteen 
 colonies and of the States into which they have since been 
 formed. Into the new States created out of territory occupied 
 by English settlers or their descendants, or not occupied by 
 any organized political community, the English Law has also 
 been extended, and there combined with the American Law 
 imported into or developed in the new community, the two 
 systems constituting, as in the older States, the body of their 
 local law. In States formed out of territory already popu- 
 lated by inhabitants of different origin and having their own 
 established systems of law, the previous system takes the 
 place which in the other States is held by English Law. Such, 
 for example, is the case in Louisiana, where before the ces- 
 sion of that territory to the United States the Civil Law pre- 
 vailed, and where it still forms the basis, interprets the 
 provisions, and supplies the defects of the American Law. 
 Into the law of the United States as a nation the English 
 Law has largely entered. The Federal Constitution is an 
 embodiment of principles most of which had been imbedded 
 in that law for centuries, and from it has been borrowed in 
 great measure the Federal legislation by which rights are 
 affirmed and remedies applied, (a) 
 
 Read (a) 3 Wheat. 212 ; 7 Cranch, 32; 3 Pet. 443 (446, 447).
 
 § 190 ENGLISH AND AMERICAN LAW. 183 
 
 § 190. Of the Presumption that the English Portion of our 
 Law is Identical in all our American States. 
 
 A natural presumption growing out of this historical condi- 
 tion of the greater part of the United States is that the Eng- 
 lish Law prevails to an equal extent in all the States of the 
 Union, and that any rule of that law which has been accepted 
 by any State is adopted and in force in every other. This 
 presumption is recognized and acted on by our courts, (a) It 
 is open to rebuttal and, as is evident from what has been 
 already stated, is subject to many limitations. As each of 
 the States has proceeded independently of the others in its 
 acceptance or rejection of the doctrines of the English Law, 
 no other uniformity among them was to be expected than such 
 as necessarily grows out of the similarity of their conditions 
 and the identity of their political conceptions. Thus States 
 whose early inhabitants resembled one another in origin, 
 pursuits, religious sympathies, and social traditions, resemble 
 one another also in the extent to which they have preserved 
 in their jurisprudence the ancient rules of the English Law, 
 while States whose populations were widely variant in these 
 respects correspondingly differ from one another in the 
 character or number of the English rules to which they still 
 adhere. As a consequence of this resemblance or divergence 
 among the States, the decisions of the courts of one State 
 upon questions of law are not of equal weight in every other, 
 but are of great authority in States into whose law the 
 English element enters in the same degree and of less influ- 
 ence, or even of none whatever, in other States in proportion 
 to the quantity of English Law which they retain. 
 Read (a) 23 D. 536 ; 2 It. 81 ; 68 D. 658.
 
 184 AMERICAN JURISPRUDENCE. § 191 
 
 CHAPTER VII. 
 
 OF THE JURISDICTION OF LAWS. 
 
 § 191. Of the Recognition and Enforcement by one State of 
 the Laws of other States. 
 The jurisdiction of a State over all persons and things 
 within its territory is supreme, and, if it chooses, it can sub- 
 ject them absolutely, and in reference to every particular 
 right and duty, to its laws. Were all mankind embraced in 
 one State, or were there no relations, public or private, be- 
 tween States or between their citizens, the assertion by the 
 State of such absolute and exclusive supremacy for its laws 
 would not only be natural but would produce no serious 
 inconvenience. When, however, as has always been the 
 case to some extent and is especially true 'in the modern 
 world, the intercourse between States is intimate and inces- 
 sant, the commercial and domestic relations between citizens 
 of different States are numerous and imjiortant, the transfer 
 of residence and even of citizenship from one State to an- 
 other is of frequent occurrence, and the rights and duties of 
 any individual may thus extend far beyond the territory of 
 the State in which he dwells, reason and justice demand that 
 every State should so far recognize the laws of other States, 
 under which its subjects have acquired rights or assumed 
 duties, as to secure the performance of their duties and the 
 protection of their rights. In answer to this demand has 
 grown up that doctrine of interstate comity, in obedience to 
 which all civilized States admit, in certain cases arising in 
 their own territory, the jurisdiction of laws other than their 
 own and administer and enforce them in their courts with 
 equal fidelity and vigor. Thus while the jurisdiction of a 
 State is absolute and exclusive over all things and persons in
 
 § 192 JURISDICTION OF LAWS. 185 
 
 its territory, it cannot be concluded that such is the jurisdic- 
 tion of its laws. In many instances its laws give way to 
 those of other States, which it treats, for the time being, as 
 if they were its own. 
 
 Read Story, Conf. L. §§ 23-38 a ; Cooley, C. Law, Ch. x, 
 pp. 196-212. 
 
 § 192. Of the Present Enforcement of Laws Already Repealed. 
 Moreover, as a general rule, the laws by which at any par- 
 ticular period a State is governed are the laws theretofore 
 enacted and not then repealed. Laws once in force but since 
 rescinded and laws hereafter to be made are alike unavailable 
 for the definition and assertion of rights or the prevention 
 and redress of wrongs. And this would be the universal rule 
 were rights and duties immediate and evanescent, having no 
 roots in the past and bearing no fruit in the future. The 
 laws of the present moment would then be sufficient to fix the 
 limits of the one and secure the full performance of the other. 
 But with the continual changes of the law on one hand, and 
 the persistent character of rights and duties on the other, 
 the present rule of law, apart from any connection with the 
 past, may be entirely inadequate to afford that protection to a 
 vested right which it is the principal purpose of the law to 
 furnish, and hence it becomes necessary for the State in infer- 
 ence to that particular vested right to recognize and follow 
 rules which it has long since banished from its current laws. 
 As in those cases where reason and justice require it to sub- 
 stitute a foreign law for its own the State yields to the re- 
 quirement, so where the same motives demand that the 
 jurisdiction of its present laws should be superseded by the 
 jurisdiction of laws which it has formally repealed, it will 
 concede this also, and apply the old law rather than the new. 
 Thus in the same State several rights of the same class, iden- 
 tical in all respects as rights, may as to the same persons be 
 under the control of different laws, as the result of different 
 changes in the law between the dates at which the several 
 rights accrued.
 
 186 AMERICAN JURISPRUDENCE. §§ 193, 194 
 
 § 193. Of the Jurisdiction of Laws : " Conflict of Laws : " " Pri- 
 vate International Law." 
 Under the jurisdiction of what laws a right must find pro- 
 tection, therefore, depeuds not merely on the present condi- 
 tion of the laws in the State where the right seeks protection, 
 but on the laws of other States as well as on its own past legal 
 rules. The questions thence arising are often of no ordinary 
 difficulty. The perplexity which they occasion in the legal 
 mind has given to the body of rules in which their solution 
 is attempted the name of "Conflict of Laws" — not because 
 the laws themselves conflict, for the law which governs any 
 individual fact is always single and consistent with itself — 
 but because of the conflict of opinions which these questions 
 have been and are still liable to provoke. Other authorities 
 have given it the title of "Private International Law," using 
 the middle term in an equivocal and consequently an erroneous 
 sense, and also treating the questions as if they arose only 
 m reference to the jurisdiction of the laws of different nations, 
 whereas they pertain also to the laws of subordinate States 
 and to the varying laws of the same State. As the real ques- 
 tion always is : Under the jurisdiction of what laws did the 
 right accrue and must its protection be secured? the broader 
 name expressive of that question has been here adopted, and 
 the subject will be treated according to its natural divisions: 
 
 (1) Jurisdiction of the laws as dependent upon Place; and 
 
 (2) Jurisdiction of the laws as dependent upon Time. 
 
 Read Holland, Ch. xviii, pp. 358-371; Walker, Lect. xlii 
 
 SECTION I. 
 
 OF THE JURISDICTION OF THE LAWS AS DEPENDENT UPON 
 
 PLACE. 
 
 § 194. Of the Lex Fori. 
 
 That all questions .as to legal rights, duties, wrongs, and 
 remedies are to be determined by the current laws of the State 
 in which they arise is presumed until the contrary appears;
 
 § 194 JURISDICTION OF LAWS. 187 
 
 and the person who invokes the aid of other laws must prove 
 that in his case the comity of States requires their recog- 
 nition and enforcement. (a) The law of the State where the 
 question is raised is known as the "Lex Fori," the law of 
 the Forum or Court, the law prevailing in the territory within 
 and for which the court is held. By whatever law the rights, 
 duties, and wrongs which are involved in the controversy may 
 be defined and measured, it is manifest that all questions 
 concerning the remedy and its application must be governed 
 by the lex fori. In the assertion of rights and duties, and 
 in the prohibition of wrongs, only mental conceptions and 
 the words which express them are employed, and the courts 
 of one State can temporarily adopt these conceptions and ex- 
 pressions from the laws of another State without serious in- 
 convenience. But not so with the remedy. The remedy calls 
 into action the practical machinery of the law, which must 
 operate in prescribed methods when it operates at all, and it 
 would be impossible for a State to change the organization 
 anil jurisdiction of its courts, their forms of procedure, their 
 rules of evidence, and their modes of enforcing their decrees, 
 in order to bring them into conformity with those of another 
 State in which the right had been created or the wrong com- 
 mitted. Hence all these matters, and whatever else may be 
 connected with the administration of remedies, must be con- 
 trolled by the lex fori.(b) The form of action to be brought; 
 the court in which the suit must be commenced; the process 
 of summons, attachment, or arrest; the pleadings and proof; 
 the trial, judgment, and execution; the measure of damages; 
 the limitation of actions; are examples of those matters over 
 which the lex fori necessarily has exclusive jurisdiction, even 
 when the comity of the State is most liberally displayed 
 toward other States in its recognition of their substantive 
 rules of law. (V) 
 
 Read Story. Conf. L. §§ 556-558. 
 (a) 63 D. 661. 
 (ft) 06 D. 345. 
 
 (r) 65 I). 679, 36 D. 364; 4 R. 29 ; 9 How. 407; 37 D. 
 187.
 
 188 AMERICAN JURISPRUDENCE. §§ 195, 196 
 
 § 195. Of the Laws which may Supersede the Lex Fori. 
 
 The laws which the State of the forum will in suitable cases 
 permit to supersede its own are: (1) The Lex Ligeantice, or 
 the law of the foreign State to which one of the parties con- 
 nected with the controversy owes allegiance; (2) The Lex 
 Domicilii, or the law of the domicile of one of the parties; 
 (3) The Lex Rei Sitaz, or the law of the place where the 
 thing in controversy is situated; (4) The Lex Loci Actus, or 
 the law of the place where some matter involved in the con- 
 troversy transpired; (5) The Lex Loci Contractus, or the law 
 of the place where the contract in controversy was made; (6) 
 The Lex Loci Solutionis, or the law of the place where the 
 contract in controversy was to be performed; (7) The Lex 
 Loci Pacti, or the law of the place by whose laws the parties 
 to a contract expressly agreed that their rights under it should 
 be determined. And though recourse by the tribunals of any 
 State to foreign laws is in practice comparatively rare, yet it 
 is not impossible that in a single case comity may require 
 that all these different systems, each perhaps pertaining to a 
 different State, should be consulted in order that the true 
 rules governing the various points in controversy may be 
 ascertained, (a) 
 
 Read (a) 46 St. 439, note ; 16 D. 212. 
 
 § 196. Of the Lex Ligeantiee. 
 
 The Lex Ligeantice, or law of natural allegiance, is the law 
 which defines the relations between a person and the State of 
 which he is a native born citizen, as well as his political 
 relations to foreign States. His civil condition; capacity to 
 act and contract under the laws of his own State ; his legiti- 
 macy, majority, subservience to guardianship; or, in the case 
 of a married woman, the disabilities attaching to her cover- 
 ture, — are fixed by this law not only before the courts of his 
 native State but in all other States where perfect comity pre- 
 vails. The rights and duties which attach to him at home 
 follow him when he travels into distant States and emanci-
 
 § 197 JURISDICTION OF LAWS. 189 
 
 pate him from many obligations to which their citizens are 
 bound; and this immunity, if attacked in foreign courts, he 
 can secure by directing the attention of the court to those 
 laws of his own country by which his political status is de- 
 fined. The most prominent examples of the recognition of 
 this law are those concerning ambassadors and ministers of 
 States who, while residing in the nations to which they are 
 accredited still remain subject even in private matters only to 
 the laws of their own State; or those of navies and armies 
 passing through a foreign territory by consent of its sovereign, 
 who are regulated there as elsewhere by their own military 
 laws. The lex ligeantice, however, cannot create artificial 
 disabilities which foreign States are bound by comity to 
 recognize. The person who under the laws of his own State 
 is a slave, or civilly dead, or subject to the penalty of infamy 
 or attainder, or deprived of ordinary rights because of his 
 religion or social rank, is not regarded as such by the courts 
 of other countries where these legal disabilities are unknown 
 and where the laws imposing them are prohibited. The lex 
 ligeantice ceases either to bind or to protect when the allegi- 
 ance ceases, and this, according to the modern doctrine in 
 the United States, is at the option of the citizen who may 
 by taking proper steps transfer his citizenship from one State 
 to another, and it may be superseded by the law of domicile 
 whenever the legal residence of the party has been perma- 
 nently changed, (a) 
 
 Read Story, Conf. L. §§ 51-54. 
 
 (a) 17 1). 179, note; 55 D. 87. 
 
 § 197. Of the Lex Domicilii. 
 
 The Lex Domicilii, or law of the domicile, is the law in 
 force in that place where the person has his legal home. In 
 a State with no political subdivisions and where the citizen 
 has no power to transfer his allegiance or his legal residence 
 to another State, the lex ligeantice and the lex domicilii would 
 be the same. But in a State composed of minor States or of
 
 190 AMERICAN JURISPRUDENCE. § 197 
 
 municipalities endowed with delegated sovereignty, or under 
 laws which recognize the right to change allegiance or to ac- 
 quire a domicile in States to which the person owes no per- 
 manent allegiance, the law of the domicile is superadded to 
 the law of allegiance and governs the person in particulars 
 to which the law of allegiance does not extend. This close 
 relation between the lex ligeantice and the lex domicilii, and 
 the possibility that States may exist in which they would be- 
 come identical, has made it difficult to assign to each, where 
 they are really separate, its distinct jurisdiction, and modern 
 courts and writers thus frequently impute to the law of domi- 
 cile control over many or all of the matters which have been 
 here referred to the law of allegiance, especially those con- 
 cerning personal capacities and disabilities. This diversity 
 of views, however, indicates no practical difficulty in the 
 application of the law, since whether the law to which a 
 person is subject be and be called the lex ligeantice or the 
 lex domicilii there is rarely or never any doubt as to what 
 system of laws it is by which his personal rights and duties 
 are determined. If domiciled in a simple State, uncom- 
 pounded of political subdivisions, the entire law of that State 
 is his law of domicile. If domiciled in a State with such 
 subdivisions the law of the State is the law of his domicile 
 as to all matters not specifically regulated by the local laws 
 of the political subdivision in which he resides, and as to 
 these his law of domicile is the local law. Thus the domi- 
 ciliary law of any particular person may be derived from 
 several domiciliary systems — from that of the city, that of 
 the dependent State, that of the nation — and the totality of 
 rules attaching to the person because of the locality of his 
 legal home will constitute for him the law of domicile. By 
 this law, coincident or coupled with his lex ligeantice, are 
 governed all matters which in the eye of the law are so con- 
 nected with his person as to be inseparable from it, — such as 
 capacity, status, domestic relationship and their incidental 
 rights, (a) Questions concerning personal property, its char- 
 acter, capability of ownership, transfer by gift or contract or 
 will, susceptibility to trusts and their administration are also
 
 g 198 JURISDICTION OF LAWS. 191 
 
 settled by the law of the owner's domicile in whatever 
 domestic or foreign tribunal they may arise, unless the 
 State where it is located has by its own laws expressly 
 asserted an exclusive dominion over it. (b) 
 
 Read Story, Conf. L. §§ 40-49 d, 55-106, 125-230 c, 374-423 h, 
 464-473 c, 480-482, 490-491 d. 
 
 (a) 28 D. 132; 12 D. 475; 14 D. 201; 65 D. 109; 43 R. 
 
 669. 
 
 (b) 3Cranch, 319; 90 D. 390 ; 9 Pet. 483 ; 28 D. 142; 
 
 14 How. 400 (424-426) ; 35 D. 472, note. 
 
 § 198. Of the Lex Rei Sitae. 
 
 The Lex Rei Sitce, or the law of the place where the thing 
 in controversy is situated, always governs real property, 
 whether corporeal or incorporeal. It would be contrary to 
 reason that any portion of the territory of a sovereign should 
 be subject to the laws of a foreign State, and, therefore, 
 whatever he prescribes concerning it must everywhere be 
 recognized as its controlling rule. Thus the distinctions be- 
 tween real property and personal ; the number and character of 
 estates in realty and their mode of creation and transfer; the 
 forms, validity, interpretation, and effect of contracts, deeds, 
 wills, mortgages, and judgments relating to real propert}', 
 are fixed by the lex rei sitcv. (a) All suits at law by which 
 the possession of the realty is to be directly influenced or 
 the ownership of it permanently settled must be brought before 
 the courts of the same State and decided according to its 
 laws. The authority of a court in any other State in refer- 
 ence to it is limited to a declaration of the rights of the 
 contesting claimants and a decree against their persons com- 
 pelling them to take such action in the State rei sitce as will 
 there adjust their rights according to its declaration, (b) 
 The lex rei sitce will likewise, if the State <>f situs so deter- 
 mines, govern all personal property within its borders, not- 
 withstanding the foreign domicile or allegiance of its owner; 
 and the State of the forum will then recognize and enforce the
 
 192 AMERICAN JURISPRUDENCE. § 199 
 
 lex rei sitae of the personal estate instead of the lex domicilii 
 or lex ligeantice which it would otherwise sustain, (c) 
 
 Read Story, Conf. L. §§ 363-373 h, 424-464, 474, 479 o, 483- 
 489 c, 492-504 a. 
 (a) 33 D. 147 ; 22 D. 41 ; 94 U. S. 315 ; 10 Wheat. 192; 
 
 165 U. S. 566. 
 (6) 67 D. 89, note. 
 (c) 7 Wall. 139 ; 12 D. 468 ; 5 Pet. 518 ; 5 Wall. 307. 
 
 § 199. Of the Lex Loci Actus. 
 
 The Lex Loci Actus, or the law of the place where some 
 matter involved in the controversy transpired, controls every 
 transaction which is begun, continued, and completed accord- 
 ing to its laws. A transaction valid according to the law of 
 the State where it occurs is, as to the transaction itself, valid 
 everywhere. Thus, for example, a marriage between parties 
 competent to marry, contracted in accordance with the local 
 law, is valid in all other States unless because of its polyga- 
 mous or incestuous character it is contrary to their funda- 
 mental policy or morals, (a) The appointment and official 
 acts of public officers, the proceedings and judgments of 
 courts, the conduct of business affairs and the rights and 
 obligations thence arising, the organization and direction of 
 corporate enterprises, always provided that the mandates of 
 the local law are faithfully obeyed, are respected and accepted 
 in all other jurisdictions, (b) Some authorities indeed go even 
 farther than this, and assert that the capacity of the parties 
 to enter into the transaction is also to be measured by the 
 lex loci actus, and hence that the transaction will be valid 
 although the parties were incapable according to the laws of 
 their allegiance or uomicile; but while this may be held true 
 in the State where the event occurred other States can hardly 
 be expected to admit its right to set aside the general prin- 
 ciple that personal capacity depends upon the law of domicile 
 or of allegiance and to bind the whole world by its assump- 
 tion of such authority, (c) The question is, however, a very 
 difficult one, especially in such cases as that of a marriage 
 between parties who under the lex loci acttis had a right to
 
 § 200 JURISDICTION OF LAWS. 193 
 
 marry, but one or both of whom was incapacitated by the law 
 of domicile, where the refusal by the courts of other States to 
 recognize the marriage must not only disgrace the parties, who 
 may have acted in good faith, but render their descendants 
 illegitimate. 
 
 Read Story, Conf. L. §§ 107-124 b ; 2 Whart. I. L. Dig. § 261. 
 
 (a) 8 D. 131 ; 23 D. 549 ; 77 D. 598; 21 D. 743 ; 18 R. 
 
 509 ; 60 St. 936, note. 
 
 (b) 39 St. 196 ; 38 St. 536. 
 
 (c) 46 St. 439, note. 
 
 § 200. Of the Lex Loci Contractus. 
 
 The Lex Loci Contractus or law of the place where the con- 
 tract in controversy was made, with some exceptions hereafter 
 to be mentioned, regulates the form, execution, proof, authen- 
 tication, interpretation, and validity of the contract, and con- 
 sequently the rights and duties which it creates, («) The 
 place where a contract is made is the State in which the 
 agreement is completed and becomes legally binding, where- 
 soever the negotiations may have been carried on or the docu- 
 ments which express the terms of the conti'act may have 
 been drawn, (b) Whatever enters into the contract even as an 
 accessory, like the promise to pay interest if the principal 
 debt remains unpaid or a legal defence to its enforcement or 
 an excuse for its non-performance, is governed by the same 
 law; if valid there, it is valid everywhere; if invalid there, 
 it is valid nowhere, (c) But the lex loci contractus cannot 
 override the lex rei sitae as to its subject-matter nor the lex 
 domicilii as to the capacity of the parties to contract; though 
 as to the latter point the same difficulty occurs as in reference 
 to the lex loci actus of which the lex loci contractus is a subor- 
 dinate division, (d) 
 
 Read Story, Conf. L. §§ 231-279 a, 362-362 b. 
 
 (a) 30 D. 472. 
 
 (b) 13 D. 281 ; 99 D. 663, note. 
 
 (o) 37 St. 186; 28 R. 241; 47 St. 456; 1 Wall 298 ; 13 
 
 Pet, 65. 
 (d) 10 St. 690. note. 
 13
 
 194 AMERICAN JURISPRUDENCE. § 201 
 
 § 201. Of the Lex Solutionis 
 
 The Lex Solutionis, or law of the place where the con- 
 tract in controversy was to be performed, supersedes the lex 
 loci contractus, in whole or in part, where the contract 
 though made in one State was to be performed in another, 
 and where the parties had in view the laws of the latter 
 State and intended to be governed by them. This limitation 
 of the lex loci contractus is an endeavor to make the contract 
 conform as far as possible to the real intent and purpose of 
 the parties. Where the contract is made in the same State 
 in which it is to be performed, the parties are presumed, 
 unless they have expressly stated otherwise, to have had in 
 mind the laws of that State and to have so framed their 
 contract that under those laws they would obtain the benefits 
 they had desired. But where the contract was to be per- 
 formed iu a State other than that in which it was made, it is 
 in many cases probable, and in some cases certain, that they 
 have contemplated the advantages which could be secured 
 only under the laws of the State of performance and have 
 agreed, at least tacitly, to be governed by those laws. Ful- 
 filling their intention as nearly as it may, which the law 
 always does, the State of the forum adopts the law of the 
 State of performance as its guide in all matters pertaining to 
 the contract as it would have adopted and followed the lex 
 loci contractus if the contract were to have been performed in 
 the same State where it was made. Thus, for example, 
 a promissory note executed and delivered in one State, but 
 expressly made payable in another, is enforceable according 
 to the laws of the latter State, whatever may have been its 
 legal status in the former. Some authorities, however, con- 
 sider this rule as too broadly stated, and insist that the lex 
 solutionis should control only such matters as concern the 
 performance of the contract, leaving to the decision of the 
 lex loci contractus all questions as to its existence, interpreta- 
 tion, and validity, (a) 
 
 Read Story, Conf. L. § 280. 
 
 (a) 37 R. 583, note ; 106 U. S. 124; 142 U. S. 101; 4ft 
 St. 439, note ; 91 U. S. 406.
 
 §§ 202, 203 JURISDICTION OF LAWS. 195 
 
 § 202. Of the Lex Loci Pacti. 
 
 The Lex Loci Parti, or the law of the place by whose laws 
 the parties to a contract have expressly agreed that their 
 rights under it should be determined, will be followed by the 
 courts in preference to the lex loci contractus or the lex solu- 
 tionis whenever it is proved that such an agreement has actu- 
 ally been made. This rule is a mere recognition of the legal 
 right of the parties to incorporate into their contract whatever 
 elements they please, provided it contains nothing contrary 
 to the public policy of the State where it is made or where 
 its obligations are to be enforced. Thus the jurisdiction of 
 the lex loci pacti seems to rest its claim for recognition by 
 other States, not so much on the comity due to the State from 
 which the law originated, as on the ordinary principle of law 
 that contracts shall be construed and carried into effect 
 according to the true intention of the parties so far as that 
 can be ascertained, (a) 
 
 Read (a) 129 U. S. 397. 
 
 § 203. Of the Extent of Comity and its Subordination to Law. 
 
 To what an extensive investigation of foreign laws a single 
 legal controversy may lead, and by the rules of how many 
 sovereignties its various contentions may require to be de- 
 cided, it is now easy to perceive. An action to recover the 
 price of land may raise the question of the validity of the 
 contract to be determined by the lex tod contractus and the 
 lex solutionis or the lex. lo<-{ -pacti; this in turn may involve 
 the ownership of the vendor to be settled by the lex rei sitae, 
 and this again may call into dispute his legitimacy under his 
 lex domicilii or the validity of the marriage of his parents 
 under the lex loci actus or their capacity to marry under their 
 lex ligeantue . and thus the inquiry may develop, step by step, 
 until the jurisdiction of the laws of nearly all the civilized 
 nations of the earth has been invoked. To all these rules 
 the courts administering the lex fori give such recognition as 
 the laws of their own State will permit, for comity yields in
 
 196 AMERICAN JURISPRUDENCE. § 204 
 
 every case to express local law, and no State is required by 
 the common courtesy of nations to give effect to laws which 
 contradict its political theories or violate its established moral 
 or religious principles, (a) 
 
 Read (a) 32 D. 307; 48 D. 706; 61 D. 617; 66 D. 502; 89 D. 
 643 ; 103 U. S. 261 ; 129 U. S. 355 ; 159 U. S. 113. 
 
 SECTION II. 
 
 OF THE JURISDICTION OF LAWS AS DEPENDENT UPON TIME. 
 
 § 204. Of the Stability of Rights under Necessary Changes in 
 the Laws. 
 Every right, duty, wrong, and remedy is presumed to be 
 governed by the laws prevailing at the time when the ques- 
 tion as to its existence, character, or availability is raised in 
 the courts of the forum ; and any party to the controversy who 
 seeks protection from the provisions of laws formerly in force 
 but now repealed must show affirmatively that by them, and 
 not by present laws, his interests are to be determined. That 
 he should have this privilege is necessary to good government. 
 The power of the State to make new laws as the welfare of the 
 people may require, and thereby to supersede or modify the 
 old, cannot be restricted without destroying the essential 
 attribute of sovereignty. Some laws are intended to be tem- 
 porary and are so expressed, and when the time fixed for their 
 duration ends they expire by their own limitation, and except 
 as to such transactions under them as are completely closed 
 they have no more authority than if they had never been 
 enacted. Other laws, intended to be permanent, are found in 
 practice to be inconvenient, and are curtailed, extended, or 
 abolished according to the judgment of the State. The evo- 
 lution of new social conditions demands other laws to meet 
 them, whose rules thenceforth apply to subjects which are 
 wholly new or have been previously governed, in part at 
 least, by different laws. Thus the laws of every living State 
 are constantly changing — the more rapidly in proportion to 
 the civilization and progressiveness of the State — substitut-
 
 § 205 JURISDICTION OF LAWS. 197 
 
 ing for old systems of law under which rights have been as- 
 serted, duties imposed," wrongs forbidden, and remedies pro- 
 vided, new systems under which other rights, duties, wrongs, 
 and remedies will obtain legal recognition, and in their time 
 these systems too will pass away and others take their place. 
 Manifestly, if with this inevitable disappearance of a legal 
 system the rights and duties, wrongs and remedies, existing 
 under it also vanished that very stability of rights which it 
 is the principal purpose of civil government to secure could 
 never be attained. To preserve these inviolate the laws from 
 which they sprang must be regarded as still in force so far 
 as they are concerned, and courts must, therefore, in reference 
 to them, have recourse to the laws prevailing in the period 
 when the right accrued. This privilege of a party to appeal 
 to former laws, and the corresponding obligation of the 
 courts to notice and apply them, are measured by the follow- 
 ing rules. 
 
 § 205. Of the Validity of Transactions Completed under Laws 
 Since Repealed. 
 The first of these rules is that every transaction, valid 
 according to the laws under which it was commenced and 
 completed, remains valid though such laws are subsequently 
 modified or repealed. Thus a marriage, a contract, a convey- 
 ance, a judgment, legally sufficient at the time of their occur- 
 rence, are not rendered insufficient by future legislation, 
 though if occurring under the later law they would have been 
 entirely null and void, (a) But this immunity does not attach 
 to transactions commenced and not completed under former 
 laws, nor to the incidental consequences of completed transac- 
 tions. A change in the law during the progress of an act brings 
 the remainder of the act under the new law. and by this law 
 its legality and effect when completed must be judged; and 
 the legal aspects of the results flowing from the act may be 
 varied by new laws introduced after the act is finished. (/>) 
 If, for example, while a suit were pending an alteration were 
 made in the law concerning the Form and effect of civil judg- 
 ments, the judgment in the suit would be subject to the new
 
 198 AMERICAN JURISPRUDENCE. § 206 
 
 law, not the old; or if, after a judgment in satisfaction of 
 which the body of the execution-debtor could have been im- 
 prisoned, a statute is enacted abolishing imprisonment for 
 debt, the remedy against the body is no longer available. 
 But though no change of laws can impair the validity of past 
 transactions, new laws may clothe with due validity transac- 
 tions which, under the laws in force when they occurred, were 
 invalid on account of the omission of prescribed formalities or 
 because the parties labored under legal disabilities, provided 
 no vested rights of other persons are disturbed. A marriage 
 defective because the parties were of insufficient age, a con- 
 veyance lacking a witness or a seal, may thus be healed by 
 later laws, unless to legalize this marriage would attack the 
 validity of one afterwards contracted, or to heal this convey- 
 ance would impair the title of a later bona fide purchaser, (c) 
 But acts entirely null and void, such as the marriage of a 
 party already lawfully united to another wife or husband or 
 the judgment of a court having no jurisdiction over the 
 subject-matter of the suit, cannot be cured by any future 
 legislation, (d) 
 
 Read (a) 96 U. S. 627; 79 D. 236. 
 
 (b) 25 R. 513. 
 
 (c) 16 D. 516; 23 Wall. 137; 17 D. 635 ; 10 D. 121, note; 
 
 76 D. 521, note ; 98 D. 237. 
 
 (d) 68 D. 587 ; 80 D. 718, note ; 87 D. 240. 
 
 § 206. Of the Impregnability of Vested Rights of Property. 
 
 A second rule is that no repeal or change of laws can defeat 
 a vested property right. This rule is based upon essential 
 principles of justice and is specifically declared in the Consti- 
 tutions of many of our States, (a) Vested rights are distin- 
 guished from expectant rights and contingent rights. A 
 vested right is one which already exists in a definite person 
 and now entitles him to possess and enjoy some object either 
 at once or in the future. An expectant right is one which, 
 though not now residing in any definite person, will, if the 
 laws continue unchanged, eventually vest in him. A contin- 
 gent right is one which does not, and except in certain future
 
 § 207 JURISDICTION OF LAWS. 199 
 
 contingencies will not, vest in the particular person under 
 consideration. Instances of expectant or contingent rights 
 are those of the probable heirs of an ancestor not yet de- 
 ceased; of a devisee under the will of a living testator; 
 of a husband to his curtesy before the birth of issue : of a 
 wife to her dower while her husband still survives: of the 
 grantee of a statutory privilege, such as exemption from taxes 
 or from civil arrest, to its continuance; of the owner of an 
 estate to the perpetuation of its peculiar legal character. 
 Such rights as these are always subject to changes in the law. 
 Rules of descent may be altered, the requisites of valid wills 
 increased, curtesy and dower restricted, statutory privileges 
 withdrawn, the nature and relations of estates transformed, 
 and the parties affected by these changes must abide the con- 
 sequences, (b) But where these rights are once vested they 
 become impregnable. As soon as the estate has descended to 
 the heir or passed into the ownership of the devisee, or the 
 right to curtesy has been perfected by the birth of issue or 
 that to dower by the survival of the wife, or the statutory 
 privilege has been exhaustively enjoyed, no future alteration 
 in the law can imperil the titles of the widow, husband, heir, 
 or devisee, or enforce the obligations from which the exempted 
 party has already been relieved, (c) Thenceforth the law exist- 
 ing when the right vested is the law to whose jurisdiction all 
 questions concerning the character, extent, and ownership of 
 the right must be referred. 
 
 Read Cooley, C. Law, Ch. xvi, pp. 345-35:5 ; Austin, Lect. liii, 
 pp. 856-8G9. 
 (a) 11 Pet. 420 (539, 540); 2 Pet. 380. 
 (6) 10 How. 395; 16 D. 715. 
 
 (c) 11 I). 79; 5 D. 291; 23 D. 478; 66 D. 148 (149, 
 150) ; 96 D. 613. 
 
 § 207. Of the Inviolability of Contract Obligations. 
 
 The third rule is that the obligation of a valid contract 
 cannot be impaired by any subsequent legislative act. Tins 
 rule is but the statement in another mode, and with a particular 
 application, of the first and second rules and is expressly
 
 200 AMERICAN JURISPRUDENCE. § 207 
 
 formulated in the Constitution of the United States, (a) The 
 obligation of a contract is that legal duty which the law- 
 imposes on the parties when the contract is made, and in- 
 cludes not only the duty to perform the contract but the duty 
 to make such compensation for a failure to perform it as the 
 law may at that time provide. It presupposes a valid con- 
 tract, possessing all the essential requisites of a true contract 
 and conformable in all respects to law, and the existence of 
 an adequate legal remedy whereby the fulfilment of the con- 
 tract may be enforced or its breach may be redressed. Want- 
 ing in these, there is no obligation which under this rule is 
 entitled to protection. Thus a gratuitous release by the 
 State from some legal duty, or an election or appointment to 
 public office, or a corporate charter under which no obliga- 
 tion rests upon the incorporated body, are not contracts, and 
 consequently the release may be rescinded or the office abol- 
 ished or the charter altered or repealed at the pleasure of the 
 State, (b) But when a valid contract has been made either 
 between the State and individuals, or between private par- 
 ties, no law can be enacted which releases either party from 
 its duty to the other or in any material degree changes the 
 obligation in extent or character, or substantially diminishes 
 or delays the remedy to which upon its breach the other party 
 is entitled, (c) By the law in reference to whose provisions 
 it was originally made the validity, interpretation, and effect 
 of the contract must be decided, and its obligation as thus 
 ascertained must be enforced against the parties by every 
 court to which a controversy concerning it may be submitted, 
 whatever might be its judgment if these questions were to 
 be determined by the present laws. 
 
 Read Cooley, C. Law, Ch. xvi, pp. 328-345, 358-363; Cooley, 
 
 Const. Lim. Ch. ix, pp. 273-294. 
 (a) 6 Cranch, 87. 
 (6) 24 How. 300 ; 22 Wall. 527. 
 (c) 90 D. 311 ; 88 D. 622 ; 1 How. 311; 4 Wall. 535; 
 
 96 U. S. 595 ; 91 D. 245 ; 14 D. 722 ; 92 D. 56 ; 79 
 
 D. 490; 6 D. 531, note; 12 R. 507; 45 D. 246; 
 
 115 U. S. 650.
 
 §§ 208, 209 JURISDICTION OF LAWS. 201 
 
 § 208. Of Ex Post Facto Laws. 
 
 A fourth rule is that no ex post facto law is valid. An ex 
 post facto law relates to public wrongs alone. It is a law 
 which either makes criminal an act that when committed by 
 the party was no offence against the State, or creates a higher 
 crime out of a lower one already perpetrated, or aggravates 
 the punishment which was attached to past offences by the law 
 at the time of their occurrence, or changes rules of evidence 
 or procedure to the disadvantage of an accused person after 
 the completion of the act for which he is to be tried, (a) Such 
 laws are in themselves dangerous to the liberties of citizens, 
 are liable to work grave injustice, and consequently are dis* 
 favored in all enlightened States, and in this country are 
 expressly prohibited by Constitutional provisions. Under 
 this fourth rule, coupled with the first, a criminal enactment 
 can be invoked against a person only in reference to acts 
 committed and penalties to be inflicted while it remains part 
 of the current law; the repeal of a criminal law, without a 
 saving clause in reference to offences perpetrated while it was 
 in force, rendering all future prosecution for such acts 
 impossible, (b) 
 
 Read Cooley, C. Law, Ch.xv, pp. 312-314 ; Cooley, Const. Lim. 
 " Ch. ix, pp. 264-27:;. 
 (a) 3 Dall. 386; 4 Wall. 277; 7 St. G74 ; 9 D. 608; 134 
 U. S. 160; 171 U. S. 380; 107 U. S. 221; 45 R. 
 531; 170 U.S. 343; 39 R. 558; 37 St. 572, note; 
 64 St. 376, note. 
 (5) 34 D. 492; 25 R. 760. 
 
 § 209. Of Retrospective Laws. 
 
 Subject to the foregoing rules the character and scope of 
 legislation rests in the discretion of the State. Retrospective 
 laws concerning civil rights and duties, wrongs and remedies, 
 may be enacted provided they do not invalidate past transac- 
 tions, nor disturb vested rights of property, nor impair con- 
 tract obligations. The law of remedies may bo changed to 
 any extent which does not materially hinder litigants from
 
 202 AMERICAN JURISPRUDENCE. § 210 
 
 obtaining the same redress, or its equivalent, to which the 
 law entitled them at the time their rights accrued. New 
 forms of action, new methods of trial, new rules of evidence, 
 new modes of satisfaction, may be substituted for the old. (a) 
 Statutes of limitation may be passed, narrowing but not 
 unreasonably diminishing the period within which suits must 
 be commenced. (6) Avenues of escape from the incidental 
 consequences of transactions completed under former laws 
 may be opened by Bankruptcy Acts or other statutes of 
 repose, (c) For though the State may not devest a vested 
 right, nor invalidate a valid act, it is not bound to maintain 
 perpetually the same system for protecting rights nor to fur- 
 nish to all injured parties in all ages the same measure and 
 species of compensation for their wrongs. Nor would it be 
 possible that while following in its law of remedies the 
 changes in the social and political conditions of its people it 
 should preserve in detail every remedy that it had once 
 adopted and apply it at the present day according to the 
 laws in force when the duty was imposed or the wrong com- 
 mitted. For the same reason, therefore, that the lex fori 
 regulates all matters pertaining to the remedy, must these 
 matters be controlled by the laws of the present and not of 
 any former time. 
 
 Read Cooley, C. Law, Ch. xvi, pp. 354-358; Cooley, Const. 
 Lim. Ch. xi, pp. 369-389. 
 («) 58 D. 66. 
 
 (b) 17 Wall. 596; 95 U. S. 628. 
 (e) 38 D. 317; 3 How. 534; 45 St. 700 (715-718). 
 
 § 210. Of the Standard of the Jurisdiction of Laws as Depend- 
 ent upon Time. 
 
 The jurisdiction of laws as dependent upon time is thus 
 determined by the nature of the subject-matter to which the 
 laws relate and concerning which the question of jurisdiction 
 has arisen. Transactions completed under laws no longer 
 existing and valid according to those laws, rights vested or 
 contract obligations imposed in pursuance of laws since re-
 
 §§ 211, 212 PROOF OF LAWS. 203 
 
 pealed, acts and omissions to which the laws then current 
 attached no liability, are to be judged, sustained, enforced, or 
 vindicated, whenever made the subject of dispute, as if the 
 former laws were still in operation. All other matters, 
 whether incidental or remedial, are governed by the present 
 law. 
 
 SECTION III. 
 
 OF THE PROOF OF LAWS. 
 
 § 211. Of the Mode of Proving Domestic and Foreign Laws. 
 
 Courts are presumed to be familiar with all the current 
 provisions of the lex fori and to refresh their recollection, if 
 necessary, by consulting the statute-books and other reliable 
 authorities. They also take notice of the past laws of their 
 own State when their attention is directed to them as they 
 appear in the ancient legislative records and the decisions of 
 the courts of former generations. The laws of foreign States, 
 however, must be specially pleaded by the party who invokes 
 their aid, and their existence, genuineness, authenticity, and 
 meaning must be proved, like any other facts, by sufficient 
 evidence. Persons learned in the laws of the State in ques- 
 tion may testify upon these points, or properly authenticated 
 copies of the statutes and decisions may be produced, (a) 
 
 Read (a) 89 D. 658, note; 49 R. 200. note ; 16 D. 738, note; 11 
 D. 779, note ; 2 Cranch, 187; 14 How. 400 (426- 
 430) ; 116 U. S. 1 ; 129 U. S. 397 (445,446); 32 D. 
 143, note. • 
 
 § 212. Of the Proof of International. Federal, and English Law. 
 
 The courts of every civilized country take judicial notice 
 of the rules of international law and of all the treaties and 
 compacts into which its own nation has entered, (a) In this 
 country tin- courts of every State are bound to know the pro- 
 visions of the Federal Constitution and the laws of the United 
 States, and the Constitutions of sister States, and to apply 
 them in the cases over which those laws have jurisdiction, (b)
 
 204 AMERICAN JURISPRUDENCE. § 213 
 
 There is also a general presumption that such portions of the 
 English Law as still prevail in other States are identical 
 with the English part of the lex fori, and unless the contrary 
 is claimed no proof to support the presumption need be 
 offered, (c) 
 
 Read (a) 159 U. S. 113 (163). 
 (6) 9 Pet. 607 (625). 
 (J) 56 D. 318. 
 
 § 213. Of the Proof of Special Legislative Enactments. 
 
 Where rights arise out of a legislative act affecting particular 
 individuals only, and on their behalf departing from or adding 
 to the general law, such act, though having all the force of law 
 in this particular case, is not regarded as a part of the lex 
 fori of which the courts must take judicial notice. Even in 
 the State of its enactment it must be pleaded and proved as 
 strictly as if it were a foreign law. The usual evidence in 
 its support is an authenticated copy, written or printed, of 
 the legislative act. The charter of a private corporation is 
 an instance of such enactment, and is proved by its production 
 and submission to the court. Laws of this character passed 
 by foreign States must be established in a similar manner.
 
 § 214 FORMS OF LAW. 205 
 
 CHAPTER VIII. 
 
 OF THE FORMS OF LAW. 
 
 § 214. Of the Causes of the Variety in the Forms of Law. 
 
 A State may exercise its legislative powers through many 
 agencies, and corresponding to these agencies the rules of law 
 may be enunciated in many forms. Where the entire sover- 
 eignty of the State resides in a single individual, as in an 
 absolute monarchy, his edict is the only form of law. In a 
 pure democracy, where all authority is lodged in the assembly 
 of the whole people, the rules which they adopt by popular 
 vote thereby become their laws. In complicated governments 
 where the three functions — legislative, judicial, and execu- 
 tive — are widely distributed, and more or less commingled 
 in the same official personages, commands and prohibitions 
 are prescribed sometimes directly in words referring to the 
 future, sometimes by acquiescence in present action and 
 acceptance of results, sometimes by express sanction given 
 to conduct already past. In our own country and in Eng- 
 land, and wherever else the Common Law prevails, all these 
 methods are employed. Laws are enacted by the whole people 
 framing or amending State or Federal Constitutions, by special 
 legislative bodies entering into treaties or formulating stat- 
 utes, by administrative officers making rules for the control 
 of departmental business, by judicial tribunals erecting 
 standards, to which future action must conform, through their 
 approval or repudiation of actions hitherto committed. Some 
 of these forms of law are more authoritative than the rest and 
 in the event of conflict supersede all others. Each is gov- 
 erned by its own rules as to the validity of its enactment 
 and the mode of its interpretation. Hence the necessity of
 
 206 AMERICAN JURISPRUDENCE. §§ 215, 216 
 
 distinguishing between them and of giving to each class its 
 appropriate discussion, (a) 
 
 Read (a) 6 Pet. 691 (714, 715). 
 
 § 215. Of the Unwritten Law and the Written Law. 
 
 The primary division of our laws, as to their form, is into 
 the Written Law and the Unwritten Law. The difference be- 
 tween these forms of law does not consist in the fact that one 
 has been reduced to writing and the other not, but that the 
 Written Law has been put into writing by the legislative 
 authority itself with the intent that the written words when 
 lawfully interpreted shall measure the precise limits of the 
 rule, while the Unwritten Law, although contained in manu- 
 scripts and printed books, has been there placed by private 
 persons or by public officers for preservation and convenient 
 reference and not for promulgation as verbally authoritative 
 law. Historically, at least so far as known in our own juris- 
 prudence, Written Law is of later origin than the Unwritten 
 Law, the Written Law serving rather to remedy the defects 
 and extend the application of the principles and precepts of 
 the Unwritten Law than to prescribe new rules of action. In 
 their discussion the Unwritten Law, therefore, logically as 
 well as chronologically, precedes the Written Law, and will 
 be first subjected to investigation. 
 
 Read Amos, Ch. i, p. ."i; Austin, Leot. xxviii-xxix, pp. 512- 
 533; Clark, Book ii. Ch. i, ii, xii-xv. 
 
 SECTION I. 
 
 OF THE UNWRITTEN LAW. 
 
 § 216. Of the Origin of the Unwritten Law. 
 
 The Unwritten Law consists in part of primary self-evident 
 principles of action whose truth and justice no rational human 
 being would dispute, and which are spontaneously recognized 
 and enforced by all the governmental agencies of the State.
 
 § 217 THE UNWRITTEN LAW. 207 
 
 Except for these it is composed of customs which, having re- 
 ceived the sanction of the State, have been thereby transmuted 
 into law. For this reason the Unwritten Law is often called 
 the "Customary Law;" not that the Written Law also did 
 not originate in custom, but that while it has assumed the 
 form of positive enactments the Unwritten Law still preserves 
 the form of its progenitor and is the law which the people are 
 accustomed instinctively and habitually to observe, (a) Tin- 
 Unwritten Law is a. universal form of law, prevailing in all 
 countries and in all ages, of slow and permanent develop- 
 ment, working out its rules by gradual experience, seeking 
 no fixed methods of expression, immutable in its principles 
 but varying in its details to meet the convictions and require- 
 ments of each passing generation. (0) Tt manifests at all 
 times the innate genius of the people, and the determina- 
 tions of the popular will. It is emphatically the "common 
 law," the law emanating from the common wisdom of all the 
 members of the commonwealth: the "law of the land," the 
 law which grows up out of the social needs created by 
 the union of the people with the soil. It constitutes by far 
 the most important portion of our law at the present time, and 
 its nature, source, and method of development ought, there- 
 fore, to be clearly understood. 
 
 Read 1 Kent, Lect. xxi. p. 472 ; Dillon, Lect. i, pp. 5-20 ; 
 Maine, Ancient Law, Ch. i, pp. 1-13. 
 (a) 3 Pall. 380 (395, 398); 39 D. 611. 
 (/>) 12 Pet. 410 (437). 
 
 § 217. Of the Nature and Obligation of Customs. 
 
 A custom is a usage or a habitual mode of acting, adopted 
 between related parties by express or tacit agreement, and 
 continued long enough to be rightly relied on as a rule of 
 conduct in their dealings with each other. Such usages in- 
 evitably arise whenever two or more human beings of sutli- 
 cient mental capaeity to govern their own actions are brought 
 into persisting relations with one another. The character of
 
 208 AMERICAN JURISPRUDENCE. § 218 
 
 these usages is determined by reason and instinct which lead 
 men to adjust their relations in the manner most beneficial to 
 themselves and to correct them in whatever particulars expe- 
 rience may have demonstrated to be necessary. Justice re- 
 quires that once adopted and perfected they should not be 
 changed except by mutual consent, and thus their recognition 
 by the parties at the outset grows by continuance into an 
 obligation which neither is at liberty to ignore. In every 
 degree and condition of society these usages abound — in 
 friendship, in business, in the family, in the church, in the 
 State — and social life is made up of these observances and 
 social peace secured through their authority, (a) 
 Read (a) 13 Wall. 363; 111 U. S. 412 (421). 
 
 § 218. Of the Mode in which the Obligation of Customs is 
 Enforced. 
 
 So long as all the parties obligated by a custom comply 
 with its requirements they remain unconscious of its force and 
 authority as a rule of action. («) But if the custom is in- 
 fringed the inconvenience thence resulting at once calls their 
 attention to its existence and awakens their sense of the injus- 
 tice caused by its transgression. Reason affirms that wrong 
 has been committed, right been violated, and duty unfulfilled; 
 and if a supreme authority exists to which the injured party 
 can appeal for protection and redress the remedy is sought, 
 and through its allowance or refusal by the supreme authority 
 the usage itself is either repudiated or sustained. A usage 
 thus repudiated disappears, but if sustained it becomes to all 
 the parties whose relations it controls a manifest and no 
 longer disputable rule. This process of evolution from simple 
 voluntary usage into authoritative obligation takes place con- 
 tinually in every family, in every State, in every other social 
 organization; and in the course of centuries vast bodies of 
 rules are thus developed out of customs leaving still unde- 
 veloped even vaster groups of equally important customs 
 which, having never yet been challenged or infringed, remain
 
 § 219 THE UNWRITTEN LAW. 209 
 
 unsanctioned save by the reason of the people and their 
 mutual good-will. 
 
 Read Holland, Ch. v, pp. 50-56. 
 (a) 10 St. 819. 
 
 § 219, Of the Transmutation of Customs into Retrospective 
 Laws. 
 
 The act by which a custom is transformed into a rule of 
 positive law is its judicial sanction b}^ the courts. This can 
 occur only when the existence or obligation of the custom is 
 made a matter of legal controversy between the parties to it, 
 and the court upholds the custom and sustains its obligation. 
 This is, in effect, the enactment of a retrospective law 
 enforcing upon the parties, as to a past transaction, a rule 
 hitherto unrecognized as law. (a) Whether before the rule 
 received this sanction and announcement it was, in any 
 proper sense, a part of the unwritten law and by the court 
 has now been simply recognized and published, or whether it 
 was then a mere dictate of reason and justice which has now 
 been elevated into law by the legislative authority residing 
 in the court, is a question which has long been strenuously 
 contested. But it is a question rather speculative than prac- 
 tical. Every decision of a court holding the parties bound 
 by a custom which never till that moment had been promul- 
 gated as law is, according to the latter theory, an act of judi- 
 cial legislation, resulting in a new though retrospective law. 
 Under the former theory it is but the announcement that the 
 law had previously been and still continues to be what the 
 custom had expressed. But whatever be the truth on this 
 point, it is certain that the courts take notice of no custom, 
 as a matter of law, until it has thus passed judicial scrutiny 
 and received judicial approbation, but in the first instance 
 treat the existence of the usage as a matter of fact to be 
 established by evidence, and its obligation as an open ques- 
 tion to be determined by reason, justice, and experience. (At 
 If this implies the residence in the courts of actual legislative 
 
 14
 
 210 AMERICAN JURISPRUDENCE. § 220 
 
 power, their inherent right to it is one of their essential attri- 
 butes and has been too long acknowledged to be now seriously 
 disputed. 
 
 Read Holland, Ch. v, pp. 57-66 ; Markby, §§ 76-80, 93-100 ; 
 Austin, Lect. xxx, pp. 534-547, Lect. xxxviii- 
 xxxix, pp. 642-659 ; Dillon, Lect. x, pp. 267, 268. 
 
 (a) 7 Pet. 1 ; 30 D. 578. 
 
 (b) 55 D. 163; 10 R. 407. - . 
 
 § 220. Of the Transmutation of Customs into Prospective Laws. 
 A custom having received judicial sanction in a controversy 
 between the related parties, and being thus made a retrospec- 
 tive law governing the transaction out of which the contro- 
 versy has arisen, becomes a prospective law, controlling the 
 future conduct of these and other parties similarly related, by 
 a process equally spontaneous and inevitable. There is a 
 natural tendency in the human mind to accept the decision of 
 a competent tribunal as correct upon any question not involv- 
 ing personal interest or prejudice, and to follow it on subse- 
 quent occasions if the same question should arise; and where 
 there is a relation of dependence between one tribunal and 
 another the judgment of the superior tribunal necessarily 
 determines that of the inferior in all controversies of the same 
 character, and obliges it to maintain and apply the doctrines 
 which the superior has proclaimed. This obligation in 
 some cases, and this natural tendency in all, to stand by pre- 
 vious decisions (stare decisis) results in the accumulation by 
 slow degrees of so many judgments sustaining the same cus- 
 tom that no doubt can exist as to the affirmation of the custom 
 in any future case in which it may be contested. Thus all 
 parties, now or hereafter occupying toward one another the 
 precise relations out of which the custom has originated, are 
 forewarned of the judgment that will be pronounced upon 
 them by any tribunal whose interference they may invoke, and 
 are consequently furnished with a standard to which their 
 conduct must conform if they would escape an adverse deci- 
 sion. In this manner, without prescribing any formal rule,
 
 § 221 THE UNWRITTEN LAW. 211 
 
 but confining their utterances strictly to the controversies 
 and the parties in the cases brought before them, the courts 
 do actually promulgate and establish prospective laws which 
 are of the same practical efficiency as if they had been spe- 
 cifically enacted by a legislative body, (a) 
 
 Read 1 Bl. Com., pp. 09-71 ; 1 Kent, Lect. xxi, pp. 473-478; 
 Dillon, Lect. viii, pp. 229-235, 261; Amos, Ch. 
 iv-v, pp. 47-76; Black, Ch. xvii, §§ 150-1.32; 
 Clark, Book ii, Ch. iii-vi ; Pollock, Lect. ii, pp. 
 50-59. 
 (a) 27 D. 628, note ; 1 Pet. 547 (692) ; 2 Black, 544 ; 
 3 Wall. 332 ; 58 D. 575, note. 
 
 § 221. Of the Customs Entitled to Judicial Sanction. 
 
 A custom is not entitled to judicial sanction unless it pos- 
 sesses certain attributes. First, it must be Immemorial; that 
 is, it must have existed for a sufficient period of time to have 
 become established as a rule of action in that class of cases 
 of which it is henceforth to be regarded as the law. This 
 attribute is of the essence of a custom which cannot exist as a 
 custom until the instances of its observance have so multi- 
 plied as to make it an habitual mode of action. Second, it 
 must be Continued; that is, it must not have been alternated 
 with antagonistic modes of action but must have been con- 
 stantly followed whenever any of this class of cases has arisen. 
 This also is essential to a custom, since habit implies uni- 
 formity of conduct, and out of a series of contradictory actions, 
 however long, no customary mode of acting can arise. Third, 
 it must be Peaceable: that is, it must not have been subject 
 to contention or dispute, but have been acquiesced in by all 
 parties to whom it pertained. This likewise is essential to 
 a custom, which is always founded in agreement, tacit or ex- 
 pressed. Fourth, it must be Reasonable; that is, it must not 
 be opposed to any fundamental principle of justice, nor in its 
 practical operation be injurious to the public or to that class 
 of persons to whose conduct it relates. This attribute is not 
 of the essence of a custom, for it is conceivable that modes of
 
 212 AMERICAN JURISPRUDENCE. § 221 
 
 action which are contrary to reason and justice may become 
 habitual even in entire communities to the ultimate subver- 
 sion of the commonwealth. But such customs ought not to 
 receive the sanction of the State, which, in enacting laws, is 
 bound to follow reason and consult the interest of its citi- 
 zens; and though they are sometimes embodied in statutes or 
 judicial decisions they fall within that class of invalid laws 
 which a wiser second thought or a sad experience of their 
 consequences soon repudiates. Fifth, it must be Certain; 
 that is, it must not either in the rights which it confers or in 
 the duties it imposes be indefinite or open to conjecture, but 
 must furnish to all persons interested iu such cases a reliable 
 and intelligible rule of action. This attribute distinguishes 
 a custom which is perfect and complete from one still in pro- 
 cess of formation. Not every custom springs into existence 
 as a matured habit containing all its elements in due propor- 
 tion. On the contrary, it begins often by accident or chance, 
 varies in content and in details as experience illustrates their 
 value, and only after many vacillations acquires its perma- 
 nent and unmistakable form. Until it has arrived at this 
 stage of development it cannot serve as a rule of conduct. 
 A rule is in its very nature fixed not variable, apparent not 
 obscure, and equally impossible would it be for a court to 
 define a rule which was incapable of definition and to apply 
 a rule which it could not define. Sixth, it must be Compul 
 sory ; that is, its observance must not have been optional with 
 individuals, but it must have been regarded by those persons 
 generally to whose relations it pertains as a rule which in 
 honesty and good faith they were under an obligation to obey. 
 This attribute is also characteristic of a completed custom, 
 for there can be no obligation to obey a varying or unintel- 
 ligible rule. The compulsion constituting this attribute is not 
 a legal but a moral one, imposed only by reason, justice and 
 the common consent of the parties to the relation, since the 
 legal obligation proper does not accrue until the custom has 
 received judicial sanction, although it is then retroactively 
 enforced against the parties as if it had always been a rule of 
 law. Seventh, it must be Consistent with other customs; that
 
 § 222 THE UNWRITTEN LAW. 213 
 
 is, it must not contradict nor limit the observance of any other 
 judicially established custom by which this class of cases is 
 already governed. This is not an attribute essential to a cus- 
 tom, for customs may and do arise which are contrary to ex- 
 isting laws as a result of those natural changes in society 
 which render sanctioned customs inconvenient and necessitate 
 the formation of new customs which contravene the old. 
 In such cases, when the new custom seeks the sanction of the 
 courts it can be granted, and the sanction previously given to 
 the custom now obsolete can be withdrawn; but both cannot 
 stand together as inconsistent rules of law. Customs adopted 
 in defiance of laws still suited to the conditions of society are 
 not entitled to recognition and will not receive it. (a) 
 
 Read 1 Bl. Com., pp. 70-79. 
 
 (a) 35 I). 20* ; 79 D. 056 : 93 D. 155 ; 8 How. 83 (102); 
 93 D. 184 ; 83 D. 656 ; 88 D. 761 ; 18 R. 200, note; 
 25 D. 363 ; 45 D. 199 ; 51 D. 206. 
 
 § 222. Of the Antiquity of Customary Law. 
 
 Not every custom which has become a part of the Unwritten 
 Law can now be traced historicall}' through all the stages of 
 development which have just been described. By far the 
 greater part of them had been evolved before the dawn of his- 
 tory and first appear to us as laws whose origin no then exist- 
 ing State could claim, but whose authority no person ventured 
 to deny. In the primeval ages of our race, in the family, in 
 tin' village, in the tribal forms of social life, they gradually 
 emerged from actions dictated by good sense, and by consider- 
 ation for the rights of others, into habits in which all men ac- 
 quiesced, and finally under the sanction of whatever political 
 authority then ruled the infant State into its permanent and 
 binding laws. The knowledge acquired by studying the pro- 
 cesses which have produced the Unwritten Law in later days 
 we read back by analogy into that undiscoverable past, and 
 trace its genesis with the same certainty as that of animals 
 and plants known to us only through the indelible impres- 
 sions they have left upon the rocky tablets of the earth.
 
 214 AMERICAN JURISPRUDENCE. §§ 223, 224 
 
 § 223. Of the Rise and Sanction of New Customs. 
 
 Not all the customs which compose existing rules of action 
 are, however, of ancient origin. With the advancement of 
 society new relations constantly come into being, new modes 
 of life, new business enterprises, new political institutions 
 are added to or supersede the old, and by these new relations 
 new usages are generated adapted to their needs. These also 
 by continued acquiescence become in time established, and 
 through controversies concerning their character and obliga- 
 tions are transmuted into rules, and so pass into the great body 
 of the Unwritten Law to enrich it and adorn it from the in- 
 exhaustible resources of human wisdom and experience. It 
 is one of the exalted functions of the lawyers of every age 
 to watch over and direct this ceaseless growth of custom and 
 development of Unwritten Law. Under their care the clos- 
 ing century has thus witnessed the evolution of important 
 branches of the Law of Contracts and the entire law of Tele- 
 graphs and Railroads, (a) 
 
 Read (a) 169 U. S. 366. 
 
 § 224. Of the History of the Unwritten Law. 
 
 Many of the rules of our own Unwritten Law have descended 
 to us through the traditions of the ages from the earliest 
 known nations of Asia, Africa, and Eastern Europe. The cus- 
 toms of the Teutonic races in the time of Tacitus, inherited 
 by them from a remote Oriental ancestry, and carried by 
 them into England there to meet and merge with other cus- 
 toms of the aborigines and later immigrants, form the foun- 
 dation on which has been built the superstructure of the 
 Customary Law erected during the past nine hundred years. 
 Before the Norman Conquest these had been collected into 
 three principal systems; the Mercian Laws, in force in the 
 midland counties which bordered upon "Wales; the Danish 
 Laws, which prevailed in the other midland counties and in 
 the eastern coasts; and the Laws of the West Saxons, which 
 governed the counties in the west and south. Of these laws 
 King Edward the Confessor in A. d. 1065, imitating his
 
 § 224 THE UNWRITTEN LAW. 215 
 
 predecessor King Alfred, caused a compilation to be made, 
 constituting one uniform body of laws to be observed through- 
 out the entire kingdom. These are the famous "Laws of the 
 Confessor," to maintain which the Saxons struggled for so 
 many generations with the Norman kings, which were reas- 
 serted in Magna Charta and after six centuries of conflict were 
 at last recognized by the government and people of England 
 as the real substratum of their law. Upon these laws were 
 temporarily imposed the customs of Norman feudalism, modi- 
 fying in many respects the law of personal and property 
 rights, especially those relating to real property, but these 
 foreign customs, though vigorously enforced under the earlier 
 Norman monarchs, soon yielded to the reviving doctrines of 
 the ancient Saxon laws and with the reign of Cromwell al- 
 most wholly disappeared. Meantime the growth of popular 
 power manifested particularly through the House of Commons, 
 with the consequent recognition by the sovereign of popular 
 rights and individual liberties, the development of trade and 
 commerce and of new industrial and agricultural conditions, 
 the increasing value and importance of personal property, 
 and the extension and improvement of the law of remedies 
 introduced new customs which the courts sanctioned and 
 transmuted into law, until the era of our Revolution found 
 the English-speaking races on both sides of the Atlantic in 
 possession of a body of unwritten law, the product of the 
 Labors of along line of learned lawyers and judges gathering 
 and refining and formulating the results of the practical wis- 
 dom of all former epochs, a body of law vast enough to meet 
 all the requirements of their social and political conditions, 
 reasonable enough to have been the guide and governor of the 
 foremost nations of the modern world, just enough to have 
 made equity and freedom synonymous with English Law. 
 
 Read 1 Bl. Com., pp. 17-26, 63-68 : 2 Bl. Com., pp. 44-58, 75- 
 77: 1 Bl Com., pp. 407-443; Dillon, Lect. i,pp. 27-33, 
 
 Lect. v. p. 157-Lect. vi. p. 17:!: Walker. Lect. iv. pp. 
 53, ">1: Wilson, Pari i. Ch. xii : Pollock. Lect. viii; 
 Reeve, Intro,].. Ch. i. pp. 159-175, Ch ii. pp. 230-244, 
 Ch. iv. pp. Mil 189; Pollock and Maitland, Hook i.
 
 216 AMERICAN JURISPRUDENCE. §§ 225, 226 
 
 § 225. Of the Unwritten Law of the States of the American 
 Union. 
 
 The Unwritten Law of such of the States of the American 
 Union as were formed out of the original thirteen colonies, or 
 out of territory where no legal system previously prevailed, 
 consists in part of so much of the English law as has been 
 adopted by the State and in part of customs which have since 
 arisen and received the formal sanction of its courts. In 
 States where systems other than the English law were preva- 
 lent before the cession of the territory to the United States, 
 the rules embodied in those systems, and the sanctioned 
 customs since developed, constitute the Unwritten Law. 
 Whether the law thus derived from former systems was, in 
 those systems, written or unwritten does not affect its char- 
 acter in ours as part of our Unwritten Law. The "Written 
 Law of one State can never take effect as written law in any 
 other until it has been re-enacted by the legislature of that 
 other State, and it then obtains its force as written law solely 
 from such legislative action and not from any authority in the 
 State from which it sprang. Thus English statutes passed 
 before the Revolution, and now, though never re-enacted in 
 this country, comprised within the English portion of our law, 
 are as to us unwritten law and derive their validity not from 
 the act of Parliament but from their adoption by our people 
 and their sanction by our courts. 
 
 § 226. Of the Unwritten Law of the United States. 
 
 It is sometimes asserted that the United States, as a 
 nation has no Common or Unwritten Law. This assertion 
 must be taken with some qualifications. It is true that the 
 United States originated in a written Constitution from whose 
 express grants or necessary implications all its powers are 
 derived. It is also true that not having existed prior to the 
 framing of its Constitution it could, at that date, neither 
 have developed for itself nor borrowed from other sources 
 any customary or unwritten law. It is also true that having 
 no being or authority except by virtue of its written Constitu-
 
 § 226 THE UNWRITTEN LAW. 217 
 
 tion it can have no recourse to the Unwritten Law of England 
 in order to extend its jurisdiction beyond the limits estab- 
 lished in its Constitution, nor assert rights, prescribe duties, 
 prohibit wrongs, nor provide remedies, however well known 
 to the customary law, unless these acts are within its dele- 
 gated powers. It is also true that in every State in the 
 Union questions concerning the persons and property within 
 its borders, unless involving matters of a national character, 
 are determined by its written and unwritten laws, and that 
 the legislative and judicial acts of the United States in refer- 
 ence to such questions are governed by those local laws. But 
 tliis exclusion of the English customary law as an original 
 source of jurisdiction to the United States, and this obliga- 
 tion of the national courts and legislature to respect the 
 common law of the respective States, by no means banishes 
 from our Federal Jurisprudence the element of customary or 
 unwritten law. Since the adoption of the Constitution many 
 customs have arisen concerning national affairs which by 
 judicial sanction have been elevated into law. In the inter- 
 pretation of the Constitution itself and of the written laws 
 made under its authority, in the application of judicial rem- 
 edies, in the government of the Territories and the District 
 of Columbia, in the administration of the Patent, Copyright, 
 ami Revenue systems, the definitions, principles, and pre- 
 cepts of the English customary law have been invoked, ac- 
 cepted, and confirmed as indispensable portions of our national 
 In written Law. Moreover, the entire body of International 
 Law is of the same character. Its rules are nowhere speci- 
 fically prescribed, but rest upon custom ami usage, sanctioned 
 by the consent of the whole family of nations and by the 
 wholesome fear of armed compulsion in case of disobedience. 
 
 Read 1 Kent, Lect. xvi, pp. 331-343 ; Cooley, C. Law. Ch. vi, 
 pp. 149-152. 
 
 « 227. Of the Expression of the Unwritten Law in Maxims. 
 Definitions, and Judicial Decisions. 
 The Unwritten Law is verbally expressed in maxims, defi- 
 nitions, and judicial decisions. A maxim is a short and,
 
 218 AMERICAN JURISPRUDENCE. §§ 227, 228 
 
 formal statement of an established principle of law. A 
 definition is an enumeration of the distinguishing character- 
 istics of some person, thing, condition, action, or default. A 
 judicial decision is the affirmance or recognition of a new 
 rule of law or the application of a known rule to a certain 
 state of facts. The maxims and definitions, though occupy- 
 ing an inconsiderable space in legal literature, are among the 
 most important and valuable portions of our Unwritten Law. 
 They were framed, for the most part, in an age when writing 
 was comparatively unknown, and when all knowledge was 
 communicated orally in set forms of speech and treasured in 
 the memory from generation to generation. For this pur- 
 pose their language was selected with the greatest care, in- 
 tended to convey exactly and with all its limitations the 
 precise rule prescribed or attribute defined ; and those which 
 have been added to them in subsequent and more learned 
 ages have emulated and attained the same perfection. To 
 commit these to memory and to examine the conclusions 
 which have been deduced from them by the courts is still 
 one of the most profitable tasks engaged in by ambitious 
 students of the law. 
 
 § 228. Of the Number and Nature of the Maxims. 
 
 The number of the maxims is indefinite, but nearly three 
 thousand of them are current in the courts and in the modern 
 literature of the law. A few of them express the primary 
 principles from which all other legal rules, written or un- 
 written, are derived. A larger number contain secondary 
 principles deduced immediately from the primary, and a still 
 greater multitude present the rules which in more remote 
 degrees of lineal descent are related to the first. Of the 
 maxims which express the primary principles the following 
 are the chief: (1) Stilus Populi Supreme/, Lex: The Safety of 
 the People is the Supreme Law; (2) Sic Utere Tuo ut Alienum 
 Non Lcedas: So Use your own Pow T ers and Property as not 
 Unjustly to do Injury to Another; (3) Actus Dei Nemini
 
 § 228 THE UNWRITTEN LAW. 219 
 
 Facit Injuriam: The Act of God Injures no one; that is, no 
 legal wrong can be inflicted by events in which human agency 
 does not co-operate and which human power could not con- 
 trol. In these three maxims reside in embryo all the rules 
 of public and private law. As an example of the mode in 
 which the secondary principles are derived from these the 
 first maxim yields the following deductions: (1) Rex non 
 potest peccare : The King can do no wrong; the Sovereignty 
 of the State cannot be exercised unjustly; (2) Rex non mori- 
 tur: The King never dies; the Sovereignty of the State is 
 perpetual and uninterrupted; (3) Rex non debet esse sub 
 ho, nine sed sub Deo et lege, quia lex facit regent: The King 
 ought not to be subject to any man but to God and the law, 
 because the law makes the King; the Sovereignty of the 
 State over its citizens is supreme but is nevertheless limited 
 in its action by divine and human laws: (4) Quando jus 
 Domini Regis et Subditi concurrunt jus Regis proferri debet : 
 In a conflict between public and private rights the public 
 right must prevail. Subordinate deductions from the first 
 of the secondary principles — Rex non potest peccare — are 
 these: (1) Actus leyis nemini est damnosus ; the act of the 
 law never inflicts a legal wrong; (2) Actus curia; neminem 
 gravabit : The act of a court shall prejudice no man ; (3) Exe- 
 cutio juris non habet injuriam : The execution of the law tines 
 not work a legal injury; (4) In fictione juris semper equitas 
 existet : Every presumption of the law must be in aid of jus- 
 tice; (6) Leges posteriores priores contr arias abrogant : Former 
 laws inconsistent with later laws are by the later laws re- 
 pealed; (Gj Communis error facit jus: A custom adopted by 
 the people in contravention of law must, when universally 
 established, be recognized as law. These examples illus- 
 trate the position which the different grades of maxims oc- 
 cupy in the logical system of the law and the method by 
 which courts and lawyers, through the constant application 
 of those maxims to practical affairs, have developed a i^w 
 great principles into numberless specific rules. (a) 
 Head Morgan. Legal Maxims. 
 
 (a) 17 D. 254; 2 St 305 j 87 St. 552.
 
 220 AMERICAN JURISPRUDENCE. § 229 
 
 § 229. Of the Legal Scope of the Maxims. 
 
 The vastness of the field of rights and obligations which 
 may be covered by deductions from a single primary principle 
 is also worthy of attention. On the first principle, expressed 
 in the maxim, Salus Populi Suprema Lex, are based the fol- 
 lowing rights of the State : (1) The right to require the civil 
 and military services of its citizens; (2) The right to place 
 restraints upon the locomotion, speech, and acts of citizens; 
 (3) The right to take private property for public use; (4) 
 The right of taxation ; (5) The right to destroy property in 
 public emergencies; (6) The right to protect the public 
 health or trade or morals at any sacrifice of individual in- 
 terest or convenience; (T) The right to control the education 
 of the citizen; (8) The right to control divorce and marriage ; 
 (9) The right to enact and enforce pauper laws; (10) The 
 right to enact and enforce criminal laws; (11) The right to 
 enact and enforce industrial laws; (12) The right to protect 
 religious institutions; (13) The right to delegate its powers 
 to cities, boards of health, and other public and quasi public 
 bodies; (14) The right to protect public officers in the dis- 
 charge of their executive and judicial duties; (15) The right 
 to protect private citizens in the enjoyment of their rights 
 against the State and one another; (16) The right to assert 
 and maintain its own rights against other States at whatever 
 cost to the persons and property of its own citizens. Equally 
 pregnant with legal truth and rule are the other primary 
 maxims, of which the second is the foundation of all laws 
 which govern private rights and duties, while the third de- 
 fines the limits within which persons, natural or artificial, 
 are responsible for legal wrongs, though neither perhaps could 
 yield such large and important results; and to a lawyer or a 
 judge, gifted with sufficient logical ability and an adequate 
 familiarity with the facts in any controverted case, the knowl- 
 edge of these primary maxims and the principles which they 
 embody would afford a guide by which in most instances cor- 
 rect legal conclusions might be reached without the explo- 
 ration of innumerable reports and treatises. 
 Read Broom, Legal Maxims.
 
 § 230 THE UNWRITTEN LAW. 221 
 
 § 230. Of the Definitions of the Unwritten Law. 
 
 The definitions of the Unwritten Law are prescriptive as 
 distinguished from descriptive definitions. A descriptive defi- 
 nition is an attempt, more or less successful, to portray in 
 words the characteristics of some actual or possible object. 
 It contemplates the object as subsisting independently of the 
 definition, and its correctness is measured by its correspond- 
 ence with the attributes of the object as they really exist.! 
 Consequently the definition may be perfect or imperfect, and 
 may lead or mislead the mind of the investigator. A pre- 
 scriptive definition is one which of itself determines the 
 characteristics of the object, so that the object cannot be 
 the object defined unless it corresponds with the terms of the 
 definition. Such a definition is necessarily perfect and can 
 never mislead. It is the norm or standard of being for the 
 object. It is a rule prescribing conditions upon compliance 
 with which alone the object can exist. It is, therefore, a 
 law, which a mere descriptive definition never can be, not 
 only establishing a criterion by which present objects may be 
 judged, but fixing in advance the nature and attributes of 
 objects yet to be. Of this accurate and authoritative char- 
 acter are the definitions of the Unwritten Law. The defini- 
 tions of an artificial person, of an heir-at-law, of an estate in 
 remainder, of the crime of burglary, for example, are com- 
 pact and comprehensive bodies of law. capable like the max- 
 ims of being expanded into voluminous treatises which after 
 all would contain nothing that was not expressed or necessa- 
 rily implied by the language of the definition itself. More- 
 over, these definitions of the Unwritten Law have by long 
 usage and general acceptance become inseparably connected 
 with the technical names of the defined objects, so that when- 
 ever in any rule of law, written or unwritten, or in any legal 
 document, the name is used the definition is adopted with the 
 name. Thus where a statute limits the powers of corpora- 
 tions, or provides a punishment for the offence of larceny, 
 every organization which falls within the legal definition 
 of a corporation is affected by the limitation; only those 
 offences which precisely correspond to the legal definition of
 
 '222 AMERICAN JURISPRUDENCE. § 281 
 
 a larceny are subject to the penalty. So where a will de- 
 vises an "estate in common," or a contract creates a "part- 
 nership" relation, the definition which the law attaches to 
 the phrase "estate in common " in the one case or to the word 
 '•partnership" in the other is incorporated into the devise or 
 contract, and constitutes the rule of law by which its in- 
 terpretation and application are controlled. To frame a stat- 
 ute or to construct a legal document without employing such 
 defined names and phrases is almost impossible; to employ 
 them without a thorough understanding of their legal mean- 
 ing is extremelv dangerous. 
 
 § 231 Of Judicial Decisions. 
 
 A judicial decision is the adjudication of a competent 
 court, in a case within its jurisdiction, upon some contro- 
 verted rule of law. The controversy concerning the legal 
 rule may relate to its existence or to its interpretation; a 
 controversy concerning its application to the state of facts 
 involved in the litigation being, as to the rule itself, only 
 another form of the question whether it exists and what it 
 signifies. Sometimes a judicial decision expressly states the 
 rule or gives its formal explanation; sometimes it merely 
 renders judgment in favor of one of the contending parties, 
 leaving the rule and its interpretation to be inferred from 
 the conclusions to which it has led. In ancient times the 
 latter method almost universally prevailed; until the inven- 
 tion of printing, and the general cultivation of the art of 
 writing, the decisions of the courts being as short as possible 
 and entered in their records in the most abbreviated form. In 
 modern times, in all the higher courts, it has become the 
 custom for the judges to prepare written decisions, often set- 
 ting forth at great length the logical processes by which they 
 attained to their conclusions, the rules by which they were 
 governed and the principles which underlie the rflles, stating, 
 explaining, and qualifying them far beyond the actual re- 
 quirements of the case at bar. Many of these decisions are 
 among the most excellent of all the expositions of the Un-
 
 § 231 THE UNWRITTEN LAW. 223 
 
 written Law, and are accepted in the States whose laws they 
 elucidate, and in other States whose laws are similar to 
 theirs, as of the highest value, both by subsequent tribu- 
 nals and by the community at large. Judicial decisions do 
 not, however, have the force of legislative acts, either as 
 making or as declaring law, except within the State by 
 whose courts they are delivered, and even then only when 
 emanating from courts of superior jurisdiction, and upon 
 points necessarily involved in the controversy before them; 
 nor do they ever become final in the sense that upon further 
 research or consideration they could not be modified or over- 
 ruled. But conflicting decisions in other States do not 
 weaken their authority in their own. Such decisions show 
 either that the legal institutions and traditions of those other 
 States are different from theirs, or, possibly, that the legal 
 questions determined have not yet been so far examined as 
 to be freed from all equivocation and capable of but a single 
 answer. In either case the judicial legislation of each State 
 must stand unchallenged until it chooses to amend it, and as 
 to that State the decisions of its courts must be regarded as 
 the true statement of its Unwritten Law. At the same time 
 judicial legislation is the one flexible and progressive agency 
 through which the Unwritten Law adapts itself to the de- 
 mands of the advancing age. Maxims and definitions long 
 since became crystallized in language and interpretation be- 
 yond the reach of change. It is in the constant modification 
 of the Unwritten Law by judicial decisions — adding, cur- 
 tailing, altering, explaining, affirming their former utterances 
 where neither reason nor justice demand a change, departing 
 from them without hesitation where a clearer understanding 
 of the subject or a variation in conditions renders the old rule 
 inexpedient — that the development of the Unwritten Law 
 consists, without which the great body of its practical rules 
 would soon become but an effete tradition, an historical phe- 
 nomenon, left far behind us in the rapid march of social evo- 
 lution, only its fundamental principles remaining to guide 
 the State in the formation of its Written Laws. 
 Read Pollock, Lect. be.
 
 224 AMERICAN JURISPRUDENCE. §§ 232, 233 
 
 § 232. Of the Treatises and Reports. 
 
 Maxims, definitions, and judicial decisions are preserved 
 and accessible in the Treatises of jurists and in the Reports 
 of cases. Each of these divisions of our legal literature em- 
 braces all these forms of the Unwritten Law. The treatises 
 discuss the decisions of the courts as well as the fixed and 
 fundamental rules of law; the courts in their decisions em- 
 ploy, explain, and affirm the maxims and the definitions. 
 Thus the reports and treatises cannot be distinguished from 
 each other by their subject-matter, but only by its mode of 
 presentation, each mode appropriate to that class of students 
 who find in it the readiest avenue to knowledge. Histori- 
 cally, the appearance of the treatise preceded that of the 
 report. Numerically, the report now far outstrips the treat- 
 ise and forms the major part of all our libraries. 
 
 § 233. Of the Principal Treatises before the Revolution. 
 
 The earliest known treatise upon our Unwritten Law was 
 the Dom-Boc, or Liber- Judicialis, of King Alfred, prepared 
 about a. d. 878. It contained a compilation of all the laws 
 and customs of his kingdom, and acquired for him the name 
 of Conditor Legum Anglicanarum. It long since disappeared, 
 and that it ever existed is. now sometimes denied. Another 
 lost book is the Laws of Edward the Confessor, a reproduc- 
 tion of King Alfred's Dom-Boc, with additions, about A. d. 
 1065. The existence of this book also is disputed, although 
 a body of laws under that name was recognized by the Con- 
 queror and his successors as the common law and folckright 
 of the English people. The Domesday Book of William I., 
 in a. d. 1080, consisting of an enumeration of the land-hold- 
 ings and tenants of his newly acquired realm, contains also 
 the law of tenures by which such lands were held. These 
 three treatises were the work of kings; but during the cen- 
 tury which followed the Conquest legal institutions became 
 settled, courts were established, formal methods of procedure 
 were adopted, the English bench and bar became an influen- 
 tial body in the kingdom, the cultivation of legal learning
 
 § 233 THE UNWRITTEN LAW. 225 
 
 increased, and the demand for legal treatises inspired private 
 authors to produce them. In a. d. 1170 appeared the Dia- 
 logus de Scaccario, or Dialogue on the Exchequer, a treatise 
 in detail on the machinery of government and a manual of 
 administrative and fiscal law, supposed to have been written 
 by Richard Fitz-Nigel, Bishop of London and Treasurer of 
 the realm. By order of King Henry II., Ranulph de Glan- 
 ville, Chief Justiciar of England, who died at the siege of 
 Acre in a. d. 1190, composed his famous Tractatus de Legibvs 
 et Consuetudinibus Anglice or Treatise on the Laws and Cus- 
 toms of England, the most ancient book extant upon the laws 
 of England. It treats the law from the standpoint of actions 
 for wrongs, in fourteen books, with forms of papers and pro- 
 ceedings. About a. d. 1244 Henry Bracton, an LL.D. of 
 Oxford, said to have been a judge and chancellor of Exeter 
 Cathedral, wrote his Tractatus de Legibus et Consuetudinibus 
 Anglice, a book of great reputation and merit which has been 
 called "the crown and flower of English mediaeval jurispru- 
 dence." In it the English law is illuminated by an infusion 
 of Roman law, and illustrated by more than five hundred 
 decisions. Two of its five divisions are devoted to personal 
 and property rights; the remaining three to public and pri- 
 vate wrongs and remedies. Fleta, written about a. d. 1287 
 by an unknown author, who gave this title to his work be- 
 cause it was composed in the Fleet prison in which he was 
 then confined, is a commentary upon English law and ap- 
 pears to be a compendium of the work of Bracton with such 
 additions to the law as had arisen since his time. Another 
 brief compendium of Bracton, under the name of Britton, of 
 about the same period, and written in the Norman •French, 
 which was then the technical language of the law, purports 
 to have been composed under the immediate supervision oi 
 King Edward I. This book is of especial interest since it 
 immediately preceded the first published reports of cases — 
 the Year Books — in which the same language is employed. 
 Another book in Norman-French, of the same epoch, is the 
 Mirrour of Justices, which professed to be "a summary of tin- 
 law for the common people/* and in which Lord Coke de- 
 
 15
 
 22 ') AMERICAN JURISPRUDENCE. § 233 
 
 clared that "you may perfectly discern the whole body of the 
 common law of England." Its authorship is imputed to 
 Andrew Home, Chamberlain of London, but it is doubted 
 whether it was not originally written before the Conquest 
 and expanded and corrected by subsequent editors. It treats 
 of all branches of law, civil and criminal, but many of its 
 historical assertions are regarded by the most recent critics 
 as unreliable. An interval of nearly two centuries then 
 elapsed, during which the foregoing treatises and the cases 
 published in the Year Books seem to have met the require- 
 ments of the legal profession and the courts, although the 
 law itself steadily developed in scope and precision. At 
 length, in a.d. 1471, Sir John Fortescue, the Chief Justice 
 of King's Bench and Lord Chancellor of England, being in 
 exile in France with the Lancastrian party, wrote for the use 
 of young Prince Edward the treatise De Lmidibus Legum 
 Anglice, or of the Praises of the Laws of England, in which 
 he sets before the future sovereign the excellencies of the 
 common law of England as compared with that of Rome and 
 other countries. It is our first book on Comparative Juris- 
 prudence and seems to have been intended as an introduction 
 to a larger work on the whole body of the law which never 
 was completed. Littleton's Tenures, a treatise on the law 
 of Real Property and the foundation of the works of Coke 
 and Blackstone, written by Thomas de Littleton, a judge of 
 the Common Pleas and the most distinguished lawyer of the 
 reign of Edward IV., for the instruction of his son, was 
 printed in a. d. 1481. It soon became the text-book of all 
 students of the law, and the statements and definitions of its 
 author were accepted as of the same authority as a judgment 
 of the courts. Under the reign of Henry VIII. the principal 
 law-writer was Anthony Fitzherbert, also a judge of the court 
 of Common Pleas. His first work, published a. d. 1514, was 
 a "Grand Abridgement of the Law," a work "of singular 
 learning and utility." His second and more, famous one was 
 the Natura Brevlum, or Nature of Writs, printed in a. d. 
 1534, a treatise on the different writs by which actions could 
 1)3 commenced and the grounds on which they should be is-
 
 § 233 THE UNWRITTEN LAW. 227 
 
 sued. It is a discussion of the law from the point of view 
 of wrongs and remedies, and was a book of very high author- 
 ity. Doctor and Student, consisting of two dialogues con- 
 cerning the grounds of our law and tracing its rules to the 
 dictates of reason and conscience, was a popular work of the 
 same period by an author bearing the name of St. Germain, 
 but of whose personality little is now known. In the same 
 reign appeared the Register of Writs, printed in a. d. 1531, 
 a collection of the authorized forms of writs. These forms 
 were very early settled by the courts, and the matter in this 
 Register is the oldest formulated matter in our law. It con- 
 tains writs adapted to every species of legal wrong and to 
 every step in judicial procedure. Great learning was ex- 
 pended in framing these writs. The}- were regarded as "the 
 measure of legal rights " and the Register itself as a manual 
 of the greatest authority. The period of seventy-eight years 
 between the reign of Henry VIII. and that of Charles the 
 First witnessed many changes in the social and political con- 
 ditions of the English people and many corresponding altera- 
 tions in the law, forerunners of the disappearance of the 
 Norman feudal system under Cromwell and the second 
 Charles, and the substitution of the sovereignty of commerce 
 for that of arms. The connecting link between the older 
 legal institutions and the new is the Institutes of Sir Edward 
 Coke, a work which is the foundation of the literature of our 
 modern law. Lord Coke was born in a. d. 1551, and died 
 a. i>. 1634. He was law lecturer of the Inner Temple and 
 Chief Justice first of Common Pleas and afterward of King's 
 Bench. His Institutes were published in a. i>. 1628. The 
 First Institute is a Commentary on Littleton's Tenures. 
 The Second treats of the Statutes from Magna Charta till the 
 reign of Henry VIII. with explanations drawn from the de- 
 cisions of the courts. The Third is on the Fleas of the 
 Crown, or Criminal Law. The Fourth discusses the Juris- 
 diction of tlic Courts. Coke's Institutes still occupy a high 
 position among the treatises on English law. especially the 
 First Institute, which has been often published as a separate 
 work by various editors with copious notes and explanations.
 
 228 AMERICAN JURISPRUDENCE. § 233 
 
 Sir Matthew Hale, a judge of Cromwell's reign in a. d. 1G53, 
 and of whom it was said that " what was not known by him 
 was not known by am* person,'' and "that what he knew he 
 knew better than any other person," produced, among a vari- 
 ety of works, a History of the Law, and an Analysis of the 
 Civil Fart of our Law. The latter seems to have been in- 
 tended as a refutation of the critics of the common law who 
 complained that it was not a rational science " by reason of 
 the indigestiveness of it and the multiplicity of the cases in 
 it." This analysis supplied Sir William Blackstone with 
 the plan of his Commentaries, and was probably the first 
 attempt to give a logical harmony and sequence to the Un- 
 written Law. One hundred years afterwards, in a. d. 1753, 
 Blackstone, at the age of thirty, began his lectures at Oxford 
 on the common law, which were published in a. d. 1768 
 under the name of Blackstone's Commentaries. These Com- 
 mentaries reproduce, explain, and supplement the works of 
 Hale, Coke, Bracton, and Glanville and all other previous 
 writers on the English law. Appearing on the eve of our 
 Revolution they represent the laws of England as they stood 
 when the separation of the colonies from the mother country 
 made them sovereign States, and when they adopted as their 
 own so much of that law as they deemed suitable to their 
 condition. Blackstone thus contains the English portion of 
 our law, of course with much beside that is not law for us, 
 and therefore always has been and must always be a treatise 
 of great practical importance to the American Bar. The 
 earlier lawyers of the United States acquired their learning 
 from its pages, and no other book has yet appeared which 
 ventures to compete with it as an exposition of that part of 
 our Unwritten Law. With Blackstone's Commentaries this 
 description of our ante-Revolutionary legal treatises may 
 close, although from it have been omitted a number of abridg- 
 ments, digests, and text-books upon special topics which once 
 earned and were worthy of their fame. 
 
 Read 1 Bl. Com., p. 72 ; 1 Kent, Lect. xxii, pp. 499-514 ; Ram, 
 Leg. J. Ch. xii ; Reeve, Ch. i, pp. 209-224 ; Clark, Book 
 ii, Ch. vii-x.
 
 § 234 THE UNWRITTEN LAW. 229 
 
 § 234. Of the Principal Reports before the Revolution. 
 
 The Year Books contain the earliest published reports of 
 the judicial decisions of the English courts. They were com- 
 menced by royal authority in a. d. 1324 under the reign of 
 Edward II., and continued without interruption for about 
 two hundred years, when in the reign of Henry VIII. through 
 motives of a false economy they were suspended. Private 
 commercial enterprise or literary ambition then assumed the 
 task, and until the reign of Queen Victoria carried it forward 
 with varying success. The names of the collectors and pub- 
 lishers of cases decided in the courts of common law and 
 equity during these three centuries constitute a formidable 
 array, among them being judges of the highest eminence who 
 thus preserved their own decisions, and their work was some- 
 times well and sometimes ill performed. The principal com- 
 mon law reporters before and during the epoch of the 
 Revolution were Dyer (1513-1582), Plowden (1550-1580), Coke 
 (1572-1616), Hobart (1603-1625), Croke (1582-1641), Yelver- 
 ton (1603-1613), Saunders (1000-107:; ». Yaughan (1665-1674), 
 T. Jones (1667-1685), Levinz (1660-1697), Palmer (1619-102*.!), 
 Pollexfen (1669-1685), W. Jones (1620-1641), Lord Raymond 
 (1694-1734), Salkeld (168<.)-1712), Strange (1716-1 749), Corny ns 
 (1695-1741), Willes (1737-1760), Wilson (1742-1774), Bur- 
 row (1757-1771), Cowper (1774-1778), Douglass (1 778-1 7N4), 
 Durnford and East (1785-180.0), Enst (1801-1812), Henry 
 Blackstone (1788-1796), William Blackstone (1746-17M)), 
 Bosanquet and Puller (1796-1807). The reported decisions 
 of the courts of equity for the same period are found in 
 Chancery Cases (1557-1600), Dickens (15.")'. 1-17'. IS). Vernon 
 (1081-1720), Precedents in Chancery (1689-1723), Peere 
 Williams (1695-1736), Mosely (1726-1731), Talbot (1734- 
 1738), Vesey and Atkins (1747-1750), Ambler (1737-1784), 
 Eden (1757-1767), Brown (1778-1794), Cox (1783-1796), 
 Vesey 2d (1789-1796). The eases in these Reports are of 
 authority in this country on such rules of the English law as 
 have become incorporated into our own. 
 
 Read 1 01. Com., pp. 72,73; 1 Kent. Lect. xxi. pp. (70-497; 
 Ram, Leg. .1. Ch. xiii.
 
 230 AMERICAN JURISPRUDENCE. §§ 235, 236 
 
 § 235. Of Treatises and Reports in England and the United 
 States since the Revolution. 
 
 Of the reports and treatises published in this country and 
 in England since the Revolution, and of the minor treatises 
 which ever since the invention of printing have been pre- 
 pared upon subordinate topics of the Unwritten Law, it 
 would be impossible here to speak in detail. Such of them as 
 can be of practical service to him the student will find readily 
 accessible in legal libraries, and his selection of them will be 
 determined by the demands of business and the customs of 
 his local bar. But so great is their total number, and among 
 multitudes of an inferior character there are so many of dis- 
 tinguished merit, that none of them enjoy such a predomi- 
 nance over the rest as to rival in renown the noted treatises and 
 reports of former generations. Whatever learning the student 
 may derive from later works he should not be contented to be 
 ignorant of those rich storehouses of the Unwritten Law to 
 which his attention has just been directed, and in which its 
 principles and precepts are treated with a reverence and en- 
 thusiasm worthy of the source from whence it sprang. For it 
 is the Unwritten Law of which the ' ' judicious " Hooker said, 
 " whose seat is in the bosom of God, whose voice is the 
 harmony of the world ; " and to which Coke refers when he 
 declares in the beginning of his Institutes, that "reason is 
 the life of the law, . . . which hath been so fined and re- 
 fined by an infinite number of grave and learned men, and 
 brought to such perfection by long experience, that no man or 
 group of men out of their own private reason can ever be 
 wiser than the law." 
 
 Read 1 Kent, Lect. xix, pp. 442-444 ; Dillon, Lect. iv, pp. 134- 
 138. 
 
 / 
 
 section ii. y 
 
 OF THE WRITTEN LAW. 
 
 § 236. Of the Nature of the Written Law. 
 
 The Written Law is a rule of conduct prescribed in a specific 
 form of words by the legislative authority of the State. In
 
 § 237 THE WRITTEN LAW. 231 
 
 the Unwritten Law the essence of the rule is the idea or 
 mental concept, or the ethical or political principle, without 
 reference to the words in which it is expressed, and this may 
 be stated in any language which will adequately convey the 
 idea. But in the Written Law both words and concept are of 
 the essence of the rule, and no other form of words, howso- 
 ever accurately it may represent the same idea, can be its legal 
 equivalent or partake of its authority. The adoption into 
 the Written Law of a rule previously unwritten, while it may 
 render the rule more precise and definitely ascertainable, thus 
 tends to limit its scope, impair its flexibility, and narrow its 
 application, unless it be a rule which can be adequately ex- 
 pressed by the words selected to convey it, and by those words 
 alone. 
 
 Read Holland, ch. v, pp. 66, 67; Austin, Lect. xxxvii, pp. 620- 
 623. 
 
 § 237. Of the Origin of the Written Law. 
 
 Written Law has its origin, like the Unwritten Law, in 
 universal principles of reason and justice, and in usages whose 
 utility has been demonstrated by experience. In most in- 
 stances, probably, the rules of the Written Law have, before 
 their formal enactment by the legislative body, become already 
 established among the precepts of the Unwritten Law. Sel- 
 dom has it occurred that an entirely new idea or principle or 
 custom has been adopted by the State until it has been tested 
 by the people, or prescribed in words before it was accepted 
 and obeyed in act ; and where such experiments have been 
 tried the errors of the lawgiver in misinterpreting social con- 
 ditions or misjudging social needs have only too often affirmed 
 the folly of one who would be wiser than the Unwritten Law. 
 The fabric of the Written Law is built out of the materials 
 and on the foundation of the Unwritten Law, as temples and 
 palaces and dwellings are framed out of the substance and on 
 the surface of the earth, both special adaptations of special 
 portions of the original mass to special purposes but never 
 wholly separated from it and returning into it whenever the
 
 232 AMERICAN JURISPRUDENCE. §§ 238, 239 
 
 special form it has received may be dissolved. This relation 
 of the Written Law to the Unwritten Law underlies many of 
 the rules by which the validity, interpretation, and effect of 
 Written Law are governed. 
 
 § 238. Of the Subordination of the Written Law to the Unwrit- 
 ten Law. 
 
 Moreover, the Written Law is the servitor and subordinate 
 of the Unwritten Law. It grows out of the Unwritten Law 
 by a natural process of development, but it does not absorb 
 the energy, nor exhaust the materials, nor fulfil the functions 
 of the Unwritten Law. It is conceivable that an upright and 
 free people in the highest stage of civilization, and with the 
 widest degree of commercial and political prosperity, might be 
 directed b}- the rules of the Unwritten Law without a single 
 formal legislative mandate ; but it is not conceivable that any 
 legislative body could so foresee the needs of such a people, 
 and so prejudge the availability of measures, as to provide 
 them in advance with a perfect system of written laws. That 
 Written Law can ever take the place of the Unwritten Law in 
 the life of a progressive people is thus an idle dream ; a dream 
 as idle as that the enterprise of such a people will pause and 
 wait for legal guidance before it opens for itself new pathways 
 and walls them in with usages and customs, by and by, per- 
 haps, to be retrodden by the lagging footsteps of the Written 
 Law. The Written Law is necessarily incidental to the Un- 
 written. It can define, explain, enlarge, restrict, apply the 
 unwritten rules, but it can never supersede them except in a 
 condition where the King becomes the State, his personal will 
 the law, and the people passive subjects of his imperial 
 decrees, (a) 
 
 Read (a) 94 U. S. 113. 
 
 ii 239 Of the Divisions of the Written Law. 
 
 The Written Law of modern States is divisible into four 
 classes : (1) Constitutions ; (2) Treaties ; (3) Codes ; and (4)
 
 § 240 THE WRITTEN LAW I CONSTITUTIONS. 233 
 
 Statutes. A Constitution is the organic law of the State, 
 defining its political powers, its form and method of govern- 
 ment, and its public rights and duties. A Treaty is a solemn 
 compact made between two or more independent States. A 
 Code is a formal statement of the entire law in all its details. 
 A Statute is the formal statement of some specific rule of law 
 governing some particular act or person. A Constitution, it is 
 true, may be either written or unwritten ; and when unwritten 
 it may be composed in part of documents determining politi- 
 cal conditions, and in part of maxims, usages, and principles, 
 in accordance with which the powers of sovereignty are habit- 
 ually exercised. A Treaty also may be wholly or in part un- 
 written. Of these what has been said of the Unwritten Law 
 suffices; here only written Treaties and Constitutions are to be 
 discussed. 
 
 Read Jameson, §§ 74-84; Cooley, C. Law, Ch. ii, §§ 22, 23. 
 
 Article I. 
 
 Of Constitutions. 
 
 § 240. Of the Nature of Constitutions. 
 
 A written Constitution is the legislative act of the entire 
 people, creating or modifying the political organization of the 
 State to which they now or are hereafter to belong. A people, 
 as the term is here employed, is not an indiscriminate multi- 
 tude, but a group of persons cohering in a political society, 
 albeit an imperfect one, and mutually recognizing one another 
 as entitled to participate in its control, (a) Where such a peo- 
 ple adopt a Constitution which creates a State, the Constitution 
 is a formal grant of powers and the State has no authority 
 beyond that which is expressed or necessarily implied in the 
 Constitution which creates it. Of this character is the Federal 
 Constitution by which the American States became united in 
 a nation. But where an existing State modifies its ancient 
 Constitution or prepares a new one all powers with which it 
 had been previously endowed remain, except so far as they 
 have been expressly or by necessary implication abolished or
 
 234 AMERICAN JURISPRUDENCE. §§ 2-11, 242 
 
 restrained. Such a Constitution is a limitation as distin- 
 guished from a grant of powers, and of this character are the 
 Constitutions of the several States of which the American 
 Union is composed. 
 
 Read Jameson, §§ 63-69, 85-87; Cooley, C. Law, Ch. ii, pp. 
 26-29. 
 (a) 97 D. 248. 
 
 § 241. Of the Preparation and Adoption of a Written Constitu- 
 tion. 
 A people may prepare and adopt a Constitution in an 
 assembly of which all are acting members. But in a political 
 society of considerable numbers this would be impracticable. 
 Hence it becomes necessary, in all ordinary cases, to impose 
 this duty upon a representative body called a Constitutional 
 Convention, selected and commissioned by the people for this 
 special purpose, (a) To this convention power may be ex- 
 pressly given to adopt as well as frame the Constitution, and 
 then its action becomes conclusive on the State, (b) In the 
 absence of such power the result of its labors must be sub- 
 mitted to the people by whose vote alone the proposed Consti- 
 tution can be made a law. 
 
 Read Jameson, §§ 114-124, 479-486. 
 f» 7 How. 1. 
 (b) 15 R. 563 ; 72 D. 74, note. 
 
 § 242. Of the Proper Contents of Written Constitutions. 
 
 The proper contents of a written Constitution are indicated 
 by its purpose. As a body of general rules in obedience to 
 which the State is to exert its appropriate activity, or by 
 which its inherent activity is to be restrained, it should define, 
 first, the territorial jurisdiction of the State and the popula- 
 tion over whom its political powers are to be exercised ; 
 second, the rights of the people as against the State ; third, 
 the form of the State, as monarchical, aristocratic, democratic, 
 or republican ; fourth, the system of government, or the mode
 
 §§ 243, 244 THE WBITTEN LAW : CONSTITUTIONS. 235 
 
 in which the governmental functions are to be distributed and 
 the officers by whom they are to be discharged ; Jiftli, the 
 relations to the State of its various political subdivisions; 
 sixth, such miscellaneous provisions as may appear to the 
 people important enough to be embodied in their fundamen- 
 tal law. Rules governing conditions which are Liable to fre- 
 quent change necessitating alterations in the law, though 
 found in many modern Constitutions, belong rather to the 
 statutes whose emendation is attended with far less difficulty 
 and delay. 
 
 Read Jameson, §§ 96-103 a. 
 
 § 243. Of the Date at which a Written Constitution Takes 
 Effect. 
 A Constitution may be so constructed as to be in itself a 
 practically operative law, or it may simply announce princi- 
 ples and obligations which can be made operative only through 
 subsequent legislative action. In the former case it takes 
 effect immediately upon its adoption by the people, either 
 through their popular vote or the action of their Constitu- 
 tional Convention, («) In the latter case each legislative 
 enactment under it becomes a law at the time fixed by its 
 own provisions or the general rule relating to all statutes. 
 Read («) 74 D. 749. 
 
 § 244. Of the Prospective Operation of Written Constitu- 
 tions. 
 
 Unless a Constitution by its terms, or by the circumstances 
 attending its adoption, clearly shows that it was intended to 
 embrace transactions and conditions already past, it will have 
 only a prospective operation, (a) It necessarily displaces 
 whatever of existing laws and Constitutions may be actually 
 repugnant to it, but does not disturb the rights which became 
 vested while they were in force. The spirit of a Constitution 
 is essentially constructive, (b) It contemplates a future 
 through which the State is to be guided by rules now judged ta
 
 236 AMERICAN JURISPRUDENCE. §§ 245, 246 
 
 be expedient and reasonable, and if it operates to remove evils 
 hitherto endured, it is by substituting for political systems, 
 under which they were possible, a better system by which 
 they will be excluded. Still it is competent for a people, if 
 they deem it necessary, to give provisions in their Constitution 
 a retroactive effect. 
 
 Read (a) 129 U. S. 36. 
 (6) 34 D. 81 (82). 
 
 § 245. Of the Amendment of Written Constitutions. 
 
 A Constitution is amendable at the will of the people by 
 whom it was adopted. An unwritten Constitution develops 
 by formal compacts or concessions between the State and the 
 people, by the judicial interpretation and application of admit- 
 ted principles of government, and by the growth of custom. 
 Into a written Constitution amendments are incorporated by 
 the methods pursued in its original construction or by those 
 which are prescribed in the Constitution itself, (a) In the 
 absence of such methods the initiative must be taken by the 
 legislature of the State, whose duty it is, as the representative 
 of the entire people, to provide a mode in which they may 
 express their will in reference to any proposed modification of 
 their organic law. 
 
 Read Jameson, §§ 525-534. 
 («) 3 St. 895. 
 
 § 246. Of the History of the English and American Constitu- 
 tions. 
 
 The written Constitutions of the several States of the 
 American Union, as well as that of the United States, are 
 derived, like their Unwritten Law, from that of England. The 
 English Constitution is unwritten. Its principles and maxims 
 have descended with the land from that Saxon ancestry whose 
 spirit of liberty and custom of local self-government lie at the 
 foundation of the Unwritten Law. Suppressed for a time by 
 Norman feudalism, this spirit wrung from King John in a.d.
 
 § 246 THE WRITTEN LAW I CONSTITUTIONS. 237 
 
 1215, the concessions contained in Magna Charta, by which the 
 freedom of the people from unreasonable burdens, the equal 
 administration of remedial justice, the liberty of commerce, 
 and the participation of certain classes of the population in 
 the conduct of the State, were permanently secured. Succeed- 
 ing monarchs were compelled to confirm and enlarge this char- 
 ter; Acts of Parliament and the judgments of the courts 
 interpreted and applied its provisions in the interest of the 
 people. The Petition of Right assented to by Charles the 
 First in a.d. 1028, the Habeas Corpus Act of Charles the Sec- 
 ond in a.d. 1079, the Bill of Eights delivered by the two 
 Houses of Parliament to "William and Mary at their acces- 
 sion to the throne in a.d. 1689, and the Act of Settlement in 
 a.d. 1701, which at once conferred the crown upon the House 
 of Hanover, and proclaimed to the new sovereign the consti- 
 tutional liberties of England, defined still more clearly and 
 elaborately the indefeasible rights of the English people, and 
 the form and limitations of the powers and duties of the 
 State. This unwritten Constitution crossed the Atlantic with 
 the colonists. It guided and inspired their own political or- 
 ganization. It furnished them with their ideas, methods, 
 forms of government, and to a great extent, with all the 
 fundamental laws of their civic life. When in the course 
 of human events it became necessary for the colonies to sepa- 
 rate from the mother country it gave to the Declaration of 
 Independence its causes of complaint against the sovereign, 
 and justified the conclusions to which the American people 
 had attained. To the new States, which this act of separation 
 brought into existence, it served as their respective Constitu- 
 tions until they promulgated new ones for themselves, and of 
 these it still continues to supply to a great extent the sub- 
 stance and the form, the language and the interpretation. 
 The Federal Constitution drew its life from the same source. 
 Although the nation which it created had no existence before 
 the Constitution was adopted, yet the people from whom it 
 emanated were the same people who, as citizens of the indi- 
 vidual States, had inherited the Constitution of their British 
 ancestors. Into the Constitution of the new nation they car-
 
 238 AMERICAN JURISPRUDENCE. § 247 
 
 ried the same principles and institutions, and so far as they 
 deemed them suitable to its condition the same form and sys- 
 tem of government, the same methods of administration, and 
 the same reciprocal rights and duties of the citizens and the 
 State. Thus our Constitutions, however recent their appear- 
 ance as written laws, are not the figments of a day, the ven- 
 turesome experiments of political empiricism, but the natural 
 and inevitable outgrowth of ancient and well comprehended 
 principles, whose truth has been tried and tested by ages of 
 practical experience and demonstrated by the freedom, en- 
 lightenment, and happiness of the people among whom they 
 have prevailed, («) 
 
 Read 1 Bl. Com., pp. 127, 128; Cooley, C. Law, Ch. i, pp. 3-19; 
 Dillon, Lect. vii, pp. 196-215 ; Walker, Lect. iii. 
 (a) 110 U. S. 516. 
 
 § 247. Of the Nature of the Written Constitutions of the States 
 of the American Union. 
 
 The severance of the colonies from the British crown at 
 once constituted them sovereign States, independent alike 
 of one another and of every foreign power, (a) All political 
 authority vested in each one of them, and it was free to adopt 
 such a government and pursue such a national policy as it 
 deemed best. Already possessing unwritten Constitutions 
 originally derived from that of England, though now en- 
 larged and modified, they proceeded, some hastily, some with 
 more deliberation, to reduce them to writing so far as it 
 seemed necessary to express in words their various provis- 
 ions. But these written Constitutions did not confer upon 
 them their respective statehoods nor clothe them -with a 
 new political authority. They could define, develop, and 
 direct it, and this was their true function and effect, and 
 hence they are called limitations and not grants of power, (b) 
 Whatever action or omission they prohibit, from that action 
 and omission the State must forbear. Whatever rights they 
 guarantee to the citizen, such rights the State must constantly 
 preserve. But they did not and they could not so portray the
 
 § 248 THE WRITTEN LAW : CONSTITUTIONS. 239 
 
 present and anticipate the future as to exhaust in their pro- 
 visions every actual and possible governmental power. Behind 
 their formal statements always lies that vast, undefined sover- 
 eignty whose possession is the essential and inseparable char- 
 acteristic of every independent State, whose only measure is 
 the right and obligation to do whatever the welfare of the 
 people may demand, whether or not that right and obligation 
 have been enumerated in its Written Law. (c) 
 
 Read 1 Kent, Lect. x ; Cooley, C. Law, Ch. xviii, pp. 381-392; 
 
 Cooley, Const. Lim. Ch. iii. 
 («) 3 Dall. 54; 3 Dall. 189; 4 Cranch, 209 ; 16 Pet. 367; 
 
 19 R. 76.3; 8 Wheat. 044. 
 (&) 35 D. 44; 00 D. 581 (583). 
 (c) 11 Pet. 102. 
 
 § 248. Of the Unwritten Constitutions of the States of the 
 American Union. 
 P»y uniting in one nation under the Federal Constitution 
 these independent States transferred to the new nation cer- 
 tain specific governmental powers. The rest they still re- 
 tained, and among those retained was this residual and 
 inexhaustible sovereignty which no written Constitution ever 
 did or could enumeratively define, (a) Whatever power it 
 becomes necessary to exert, which is not mentioned in the 
 written Constitutions either of the State or the United States, 
 is therefore vested solely in the State, and the possession of 
 this power imposes on the State the obligation to assert it. 
 Thus both before and since the formation of the Federal 
 Union, the Constitutions of the States of which it was at 
 first composed have been to a considerable, but not a uni- 
 form extent, unwritten, the unwritten serving to define the 
 meaning and supply the defects of that which had been ver- 
 bally expressed, (b) To the Constitutions of the States which 
 have from time to time been added to the Union the same 
 conditions are imputed, not because such States possessed an 
 inherent independent sovereignty before their admission to 
 the Federal Union, but because the fundamental theories and
 
 240 AMERICAN JURISPRUDENCE. §§ 249, 250 
 
 principles of that Union require an absolute political equal- 
 ity between the States which are its members. 
 
 Read Jameson, §§ 88-92. 
 
 (a) 35 D. 326 ; 1 R. 399. 
 (6) 59 D. 759 ; 2 Pet. 627. 
 
 § 249. Of the Nature of the Federal Constitution. 
 
 The written Constitution of the United States differs en- ' 
 tirely in its nature from the written Constitutions of the 
 individual States. It is not like them a limitation of pre- 
 existing powers. It is a grant of powers which created the 
 grantee, and which until the grant was made the grantee 
 never had in any degree enjoyed, (a) The United States had 
 no inherent sovereignt} T , no political organization, no state- 
 hood, not even an existence, before its Constitution was 
 adopted, and still possesses none which that Constitution did 
 not confer. Beyond the powers enumerated in its various 
 provisions, and such as are necessarily implied therefrom, 
 the United States therefore has no powers. Nor is there in 
 it any residual fund of sovereignty out of which new powers 
 can be developed at the demand of national progress or 
 emergency. Such was the almost superhuman wisdom by 
 which the Federal Constitution was devised, so comprehen- 
 sive is its language, and so liberal has been its interpreta- 
 tion, that few exigencies are likely to arise which the nation 
 does not have the constitutional authority to meet. But 
 when they do occur the States alone can solve the difficulty, 
 either by their individual or collective action, or by an 
 amendment to the Federal Constitution. 
 
 Read Cooley, C. Law, Ch. ii, pp. 29-31, Ch. iv, pp. 105-110. 
 (a) 12 Pet. 657; 1 Wheat. 304. 
 
 § 250. Of the Supremacy of the Federal Constitution in its 
 own Field of Jurisdiction. 
 But though historically derived from the sovereignty of 
 the States, and thus intimately related thereto, the sover-
 
 §251 THE WRITTEN LAW: CONSTITUTIONS. 241 
 
 eignty of the United States is still distinct from and supe- 
 rior to theirs. («) As to all matters exclusively confided to 
 it by the Federal Constitution it occupies a field into which 
 State authority cannot enter ; and where its powers and theirs 
 are concurrent they are not co-equal, and to the fiat of the 
 United States the State must yield. The Federal Constitu- 
 tion is the supreme law of the land. No Act of Congress, 
 no State Constitution, no local statute can prevail against it. 
 It enters into and forms a part of all subordinate laws. It 
 binds all courts, both State and Federal, (b) It modifies and 
 supersedes all treaties. Its amendments repeal and abrogate 
 every inconsistent law and Constitution. (V) Conflict, how- 
 ever, between the Federal Constitution and the laws and 
 Constitutions of the States is never presumed, nor is its 
 existence recognized unless it clearly appears, (d) On the 
 contrary, interpretations of the Constitution which avoid such 
 conflict are favored in the law. Xo power of the United 
 States is held to be exclusive unless so declared or evidently 
 implied. (e) Xo exercise of its concurrent powers forestalls 
 the action of the State beyond the exact jurisdiction assumed 
 by the United States. Xo limitation placed by the Constitu- 
 tion upon the assertion of governmental authority applies to 
 any State unless it be expressly named. 
 
 Read Jameson, §§ 93, 94; Cooler, C. Law, Ch. ii, pp. 31-33. 
 (a) 6 Wheat. 264. 
 (6) 4 Wheat. 316. 
 
 (c) 103 U. S. 370. 
 
 (d) 12 Pet. 72 (75, 70). 
 
 (e) 70 D. 151 ; 92 D. 468. 
 
 § 251. Of the Contents of the Federal and State Constitutions. 
 The general contents of the State and Federal Constitu- 
 tions are as similar as the natures of the Constitutions will 
 permit. Each contains in some form a definition or descrip- 
 tion of the State, declares the rights of its citizens, prescribes 
 the character and frame of its government, the distribution 
 of its functions, the method of making and administering its 
 
 16
 
 242 AMERICAN JURISPRUDENCE. §§ 252, 253 
 
 laws, and its relation to its various subdivisions. Some em- 
 brace many matters of detail which others leave to be deter- 
 mined by the action of the legislature. In several of the 
 State Constitutions the Bill of Rights, substantially as de- 
 clared in England in a. d. 1689, is inserted, and as a limita- 
 tion on the sovereignty of States in favor of the citizen it 
 properly belongs iu all. The Federal Constitution, being a 
 grant of powers, did not contain this limitation, but the same 
 end has been attained by subsequent amendments, (a) 
 
 Read Cooley, Const. Lim., Ch. ix, pp. 256-264; Cooley, C. 
 Law, Ch. i, p. 17, Ch. ii, pp. 38-40, Ch. xii, pp. 
 21S-223; Walker, Lect. xi. 
 (a) 7 Pet. 243; 116 U. S. 252. 
 
 § 252. Of the Interpretation of the Federal and State Consti- 
 tutions by the Unwritten Law. 
 In the interpretation of all these Constitutions recourse is 
 constantly had to the Unwritten Law. The meaning of 
 words, the nature of the privileges granted and of the limi- 
 tations imposed, the character and mode of exercising gov- 
 ernmental powers, and many other subjects are, as intended 
 by these Constitutions, precisely what they were under the 
 Unwritten Law, and from it alone their true signification can 
 be ascertained. («) Omissions in State Constitutions may be 
 supplied from that reserved sovereignty which remains in 
 the State after the limitations imposed upon it by the Fed- 
 eral Constitution or its own have been respected. Omissions 
 in the Federal Constitution can be cured only by amendment. 
 
 Read Cooley, Const. Lim., Ch. iv. 
 
 (a) 49 D. 697; 169 U. S. 649 (653-655). 
 
 § 253. Of the Constitutionality of Treaties and Statutes. 
 
 Treaties and statutes, State or Federal, are unconstitu- 
 tional in reference to the Federal Constitution whenever they 
 conflict with its provisions either as to the mode in which 
 they are enacted, the subject-matter to which they relate, or
 
 § 253 THE WRITTEN LAW : CONSTITUTIONS. 2-43 
 
 the rules which they prescribe, (a) This conflict must exist 
 between the written Constitution itself and the objectionable 
 law, for the United States has no unwritten Constitution 
 between which and its laws collision could arise, (b) An Act 
 of Congress, or the rules prescribed by the Federal authori- 
 ties, are also unconstitutional when they exceed the powers 
 conferred by the Constitution upon the enactor of the rules. 
 The statutes of a State, or the acts of its officials, are un- 
 constitutional in reference to its Constitution whenever they 
 transgress the limits imposed either by the express provi- 
 sions of the Constitution or by the principles of justice and 
 good government which, though not expressed, are still a part 
 of its fundamental law. (c) The constitutionality of all acts 
 is presumed until the contrary appears (d), and acts whose 
 separate parts are capable of independent application may be 
 sustained as to the constitutional parts while those in con- 
 flict with it are repudiated, (e) Courts are reluctant to sup- 
 port objections on this ground to current laws unless the 
 defect is evident and no other question is presented on which 
 the case can be decided in favor of the party raising this 
 objection. (/) In England questions of this character are 
 not entertained. Its unwritten Constitution is interpreted 
 by Parliament, and every Act of Parliament passed in accord- 
 ance with its own rules is valid, either as an expression of 
 the Constitution or as an amendment to it. This is the sense 
 in which Parliament is omnipotent; there being no superior 
 by whose judgments its enactments can be overruled. 
 
 Read Cooley, Const. Lim. Ch. vii ; Cooley, C. Law, Ch. ii, p. 24, 
 Ch. vii, pp. 163-174. 
 
 (a) 44 D. 503; 54 D. 379 : 15 Wall. 610; 19 St. 374. 
 
 (b) 1 Cranch, 137; 120 V. S. 97; 81 D. 72(75). 
 
 (c) 87 D. 52; 97 D. 575 ; 20 St. 123 : 15 St, 400. 
 (rf) 19 Wall. GOO: 120 V. S. 678; 41 St. 109 (113). 
 (e) 41 St. 278(293). 
 
 (/) 63 D. 487 (506); 12 St. 183(185, 186).
 
 244 AMERICAN JURISPRUDENCE. §§ 254, 255 
 
 Article II. 
 Of Treaties. 
 
 § 254. Of the Nature of Treaties. 
 
 A Treaty is a compact between two or more independent 
 States. In its form, and in its primary effect upon the parties 
 by whom it is made, it is not a law, there being no superior 
 authority who could prescribe or can enforce it. It depends 
 for its sanction upon the honor and interest of the parties and 
 the danger that its infraction may become the cause of war. 
 The power to make a treaty is a necessary element of sover- 
 eignty. In this country it can be exercised only by the 
 United States which, under the present provisions of the 
 Federal Constitution, must act through the President with 
 the concurrence of two-thirds of the Senate, the lower House 
 of Congress not participating in the treaty except by aiding 
 in whatever legislation may be required to carry its pro- 
 visions into effect, (a) 
 
 Read Vattel, Book ii, Ch. xii-xvii, Book iv, Ch. ii-iv ; Wool- 
 sey, §§ 101-113 ; Cooley, C. Law, Ch. v, pp. 117- 
 118. 
 (a) 112 U. S. 580 (598, 599) ; 2 Pet. 253 (314). 
 
 § 255. Of the Preparation and Adoption of Treaties. 
 
 The preliminary negotiations for a treaty are usually con- 
 ducted by authorized agents of the parties, by whom also its 
 contents and final form are determined and the completed 
 treaty signed, subject to ratification or rejection by their 
 respective States. Whether such agents acted with due 
 authority, and whether the matters stipulated in the treaty 
 were within the jurisdiction of the stipulating State, are 
 political questions into which the courts of neither State, 
 after the ratification of the treaty, are competent to inquire. 
 A treaty thus negotiated, signed and ratified is valid as against 
 the parties and their citizens until its formal abrogation. 
 Read 2 Whart. I. L. Dig. §§ 130-131 a.
 
 §§ 256-258 THE WRITTEN LAW I TREATIES. 245 
 
 § 256. Of the Contents of Treaties. 
 
 Any affairs in which the treaty-making States are interested 
 may be made the subject of the treaty and to any one of 
 these, whether political, social, or commercial, however narrow 
 may be its limits, the treaty may be confined. Alliances 
 aggressive and defensive may be formed, territory and popu- 
 lation ceded, immunities of trade or citizenship reciprocally 
 conferred, or the practical jurisdiction of the laws of either 
 State extended. Jn short, no matter seems to be beyond the 
 scope of such a compact unless it be the abdication by one of 
 the contracting States of its own sovereignty or an essential 
 change in its internal constitution, (a) 
 
 Read 1 Kent, Lect. ii, p. 34, Lect. viii, pp. 165-179. 
 («) 114 U. S. 525 ; 133 U. S. 258; 1 Pet. 511. 
 
 § 257. Of the Effect of Treaties. 
 
 Subject to the contingency of its future ratification or 
 rejection a treaty takes effect between the parties from the 
 date when it is signed, though as to private rights, if any are 
 involved, it does not become operative until its final ratifica- 
 tion, (a) A treaty cannot impair previously vested property 
 rights, nor transfer territory or privileges which the granting 
 State does not possess, (b) The cession of territory by one 
 sovereign to another does not disturb the titles of estates 
 belonging to private individuals (c), nor are the local laws 
 which governed them abolished until the new sovereign has 
 provided others. (<l) 
 
 Read 1 Whart T. L. Dig. § 4 ; 2 Whart. T. L. Dig. § 132. 
 (a) !i How. 280; 9 Wall. 32; SI D. 530, note. 
 (6) Pet. 711. 
 (c) 7 Pet. 51 (86, 87); 9 Pet. 117; 12 Pet. 410; 20 How. 
 
 176(177, 178): 5 Wall. 211. 
 (//) 11 How. 570(577-580); 114 U. S. 512. 
 
 § 258. Of the Supremacy of Treaties. 
 
 A treaty is of supreme authority in all the States which 
 become parties to it and binds the courts and all subordinate
 
 246 AMERICAN JURISPRUDENCE. §§ 259, 260 
 
 legislative bodies. («) In this country it is subject only to the 
 Federal Constitution, is of the same force as an Act of Con- 
 gress, and overrides all State Constitutions and local laws, (b) 
 When treaties made by the United States conflict with Acts 
 of Congress the latest must prevail, since of two equal incon- 
 sistent rules the earlier by the later is repealed. 
 
 Read 2 Whart. I. L. Dig. §§ 138, 139. 
 
 (a) 3 Dall. 199; 100 U. S. 483; 1 Cranch, 103; 6 
 
 Wheat. 1. 
 
 (b) 124 U. S. 190; 130 U. S. 581 (600, 601). 
 
 § 259. Of Treaties as Portions of the Written Law. 
 
 A treaty, though primarily a compact, may indirectly im- 
 pose duties upon the citizens of the respective States and thus 
 become to ' them a rule of conduct. These duties may be 
 specifically enumerated by the treaty itself, or its stipulations 
 may render some legislative action necessary in which they 
 will be formally prescribed, (a) It is in this mode that a 
 treaty enters into the body of our Written Law, forming at 
 once a portion of the international law by which the States 
 are governed and of the national or municipal law by which 
 their citizens are controlled, (b) Of treaty-laws courts take 
 the same judicial notice as of every other, and interpret and 
 administer them in the customary modes. 
 
 Read («) 6 Pet. 691 (735). 
 
 (jb) 2 Pet. 253 (314); 119 U. S. 407. 
 
 § 260. Of the Amendment and Abrogation of Treaties. 
 
 A treat}- can be abrogated or amended only by the concur- 
 rent action of the parties by whom it was made. Its viola- 
 tion by either party does not dissolve it until the other, in 
 some unequivocal manner, accepts and ratifies the dissolution. 
 It is not nullified by war between the parties, but remains 
 suspended and revives with the return of peace, (a) The 
 remedies for a breach of treaty rights are retorsion, or the
 
 § 261 THE WRITTEN LAW: CODES. 247 
 
 refusal of the aggrieved party to perform its corresponding 
 treaty duties ; reprisal, or an act of retaliation by the injured 
 party commensurate with the injury received ; or, in the last 
 resort, a war. The amendment of a treaty is conducted by 
 preliminary negotiations through accredited agents, and their 
 final agreement, subject to its ratification by their respective 
 States. 
 
 Read Vattel, Book ii, Ch. xviii ; 2 Whart. I. L. Dig. §§ 135- 
 137 a; 3 Whart. I. L. Dig. §§ 315-321. 
 (a) 8 Wheat. 464. 
 
 Article III. 
 
 Of Codes. 
 
 § 261. Of the Nature of Codes. 
 
 A Code is a formulated statement of the entire body of the 
 law of a State in all its details as applicable to all persons and 
 all subjects. It emanates directly from the supreme legisla- 
 tive body of the State and is intended to set forth in system- 
 atic form all the rules of public and private law, whether 
 hitherto they have been written or unwritten. It constitutes 
 a new law, covering the whole field of jurisprudence, and 
 supersedes and abolishes every former rule. It leaves no 
 margin of principles or subjects to be governed by customary 
 law or by judicial precedent, but where the Code is silent there 
 is no law. Rights which it does not assert, duties which it 
 does not impose, wrongs which it does not prohibit, remedies 
 which it does not apply, do not legally exist. It differs from 
 all other forms of Written Law in that these, however com- 
 plete, are imbedded in a vaster body of Unwritten Law from 
 which their defects can be supplied, while a Code stands alone, 
 the solitary and exclusive law, sufficient or insufficient for the 
 needs of the State as the case may be, but in either case un- 
 aided by precepts or doctrines drawn from any other source, 
 and unamendable except by the authority by which it was 
 originally framed. 
 
 Read Amos. Ch. xiii. pp. :>tM-395.
 
 248 AMERICAN JURISPRUDENCE. § 262 
 
 § 262. Of the Legal Importance of Codes. 
 
 Codes are a form of law occasionally attempted both in an- 
 cient and modern times. It was natural that with the inven- 
 tion of writing the existing laws of a State should be collected, 
 arranged, and stated in this permanent form either by private 
 or public writers, and that the laws thus expressed, if complete 
 and satisfactory to the sovereign, should be imposed by him 
 upon his people and occupy the place of all other forms of law. 
 It was also natural that such a body of Written Law, being com- 
 plete and sufficient for the time, should be then regarded as 
 sufficient likewise for the future, and therefore the final utter- 
 ance of legislative authority, irrevocable and unamendable, 
 to which thereafter nothing would be added and from which 
 no subsequent law-giver would ever take away. But it was 
 equally natural, rather it is the inexorable law of nature, 
 that every State should gradually outgrow its laws, unless 
 indeed under the dead weight of their changeless rules it sank 
 into decay and disappeared. The living State must grow : the 
 stagnant State must die : and growing States cannot remain 
 confined within the legal systems of the past. Expansion and 
 amendment irresistibly occur either through direct legislation 
 or a new development of the Unwritten Law, and though code 
 follow code in the same State at intervals of generations or of 
 centuries it comes to the same result at last — if the State sur- 
 vives, the code is left behind and finally loses its authority as 
 law, or becomes a nucleus around which clusters and accumu- 
 lates a constantly increasing multitude of later statutes and 
 customary laws. While, therefore, codes properly prepared 
 have always an historical and literary value, and perhaps a 
 temporary legal importance, they are not suited to the genius 
 of progressive States, nor can they take the place or fulfil the 
 functions of the systems in which the Written and Unwritten 
 Laws combine. 
 
 Read Markby, §§ 69-71; Clark, Book ii, Ch. xvi ; Maine, An- 
 cient Law, Ch. i, pp. 13-19; Austin, Lect. xxxix, 
 pp. 660-681, Frag. pp. 1021-1039, 1092-1100; Dillon, 
 Lect. vi, pp. 179-183, Lect. ix, pp. 256-260, Lect. xii f 
 pp. 342, 343.
 
 §§ 263, 264 THE WRITTEN LAW : STATUTES. 249 
 
 Article IV. 
 
 Of Statutes. 
 
 § 263. Of the Nature of Statutes. 
 
 A Statute is a formulated statement of some specific rule 
 governing some particular object, act, or person. It differs 
 from the Unwritten Law in that its words as well as its idea 
 or principle have a definite legal character and value, from 
 treaties and Constitutions in the modes in which they are 
 enacted and the purposes which they fulfil, from codes in 
 that Statutes always presuppose the co-existence of the Un- 
 written Law in aid of which they are themselves prescribed. 
 The latter difference requires especial emphasis in reference 
 to certain groups of Statutes which are sometimes miscalled 
 codes. A compilation of statutory and unwritten rules on 
 any subject, arranged in scientific order and promulgated by the 
 legislature, is not a code but merely a new Statute, unless it 
 is intended to exclude thereafter all resort to the Unwritten 
 Law. The propriety of the names "Code Pleading," "Civil 
 Code," "Code of Civil Procedure," and similar titles in our 
 legal nomenclature may be determined by this test. 
 
 § 264. Of Legislative Authority and the Public Bodies in which 
 it Resides. 
 
 All acts of any legislative body prescribing rules of civil 
 conduct, and not creating a complete code of laws, are com- 
 prehended under the name and definition of statutes. Legis- 
 lative authority is lodged in various bodies according to the 
 organic form of the State, and may be confided to different 
 bodies in the same State — some superior and some sub- 
 ordinate, (a) In this country under both the national and 
 State forms of government there is one supreme assembly — 
 the Congress of the United States, the Legislatures of the 
 several States — which by its own immediate action prescribes 
 written laws. Iuferior to this and deriving from it all their 
 legislative powers are local bodies, such as counties, cities,
 
 250 AMERICAN JURISPRUDENCE. § 265 
 
 and boroughs, which are endowed with the authority to make 
 laws concerning details not embraced within the general legis- 
 lation of the State. Within still narrower limits a private 
 corporation has legal jurisdiction over its own members and 
 can define their rights and control their conduct as such mem- 
 bers by its lawfully adopted rules. Judges to whose direction 
 the course of legal procedure is committed and administrative 
 officers responsible for the transaction of governmental busi- 
 ness, where the supreme legislature has not provided with 
 sufficient minuteness for the proper guidance of affairs, may 
 in their turn impose regulations upon their inferior officers 
 and other persons participating in their judicial or ministerial 
 operations. All such rules, being the result of legislative 
 action on the part of the State through some one of its numer- 
 ous governmental agencies and determining legal rights and 
 obligations are truly and properly called laws ; and, being ex- 
 pressly formulated by the authority from which they proceed, 
 are Written Laws ; and, embracing but a portion of the whole 
 law of the State, they are Statutes. 
 
 Read Cooley, C. Law, Ch. iii, pp. 44-46. 
 
 (a) 99 U. S. 760 (761); 46 St. 98 (100-108). 
 
 § 265. Of the Validity of Legislative Acts. 
 
 A legislative body can perform a legislative act only in the 
 mode appointed by the written or unwritten Constitution of 
 the State, (a) x\n apparent statute is invalid and has no 
 force as law unless the legislative body which enacted it was 
 legally constituted and observed all the rules and forms which 
 the Constitution has prescribed. This matter is always open 
 to inquiry in litigations dependent upon statutes and presents 
 a question of law for the judgment of the court, not one of 
 fact for the decision of the jury, (b) Upon this point the oral 
 evidence of witnesses cannot be received. In some courts the 
 official journals of the legislature have been presented and 
 examined ; in others it has been asserted that the statute-roll 
 itself alone is competent testimony, and that if duly pro- 
 mulgated as law according to constitutional forms no further
 
 § 266 THE WRITTEN LAW : STATUTES. 251 
 
 investigation into the constitutionality of the mode of its 
 enactment can be made, (c) The motives of a legislative body 
 in making rules of law are never open to investigation. ((/) 
 
 Read Cooley, Const. Lim. Ch. vi. 
 
 (a) 58 D. 571, note ; 88 1). 377; 8 R. 602 ; 94 U. S. 200; 
 
 85 D. 348, note ; 51 D. 611, note. 
 (6) 20 II. 69. 
 
 (c) G6 D. (373; 89 D. 93 ; 13 R. 640; 47 St. 801, note; 
 
 143 U. S. 649. 
 
 (d) 25 St. 230 ; 7 Wall. 506. 
 
 § 266. Of the Contents and Different Parts of Statutes. 
 
 A statute, formally complete, contains a title, a preamble, \ 
 the enacting clause or clauses, and the necessary provisos and 
 exceptions. The title of a statute is a brief statement of its 
 name and legal character, showing to what class or general v 
 body of rules it belongs, (a) The preamble is a recital of the 
 circumstances and conditions which prompted the legislature 
 to enact the statute. The enacting clause sets forth the rule 
 prescribed. A proviso is a qualification grafted upon the en- 
 acting clause taking some special matter out of its operation 
 and making a different rule concerning it. An exception is a 
 limitation attached to the enacting clause, preventing it from 
 operating on some matter which it would otherwise include. 
 Not all these parts are found in every statute. Provisos and 
 exceptions are employed only when the form of the statute 
 and its subject-matter make them necessary, (b) The preamble 
 is often wanting. The title, though generally present, is 
 not essential. The enacting clause alone, with its qualifications 
 and limitations, is the law. The other parts are useful for 
 convenience of reference and classification, and to aid in the 
 interpretation of the law. In order to avoid confusion, a 
 statute should properly embrace but a single subject, to which 
 all its enacting clauses should be confined. 
 
 Read Cooley, Const. Lim. Ch. vi, pp. 141-151. 
 
 (a) 64 St. 64, note. 
 
 (b) 128 U. S. 174 (181).
 
 252 AMERICAN JURISPRUDENCE. §§ 267, 268 
 
 § 267. Of the Date when Statutes Take Effect. 
 
 Unless otherwise provided a statute takes effect and becomes 
 a binding rule of law from the date of its passage, (a) But the 
 legislative body may appoint a different date, such as the date 
 of its own adjournment or of the publication of the statute, 
 or a date occurring a specified number of days after its passage, 
 in the reckoning of which the clay of its passage will be ex- 
 cluded. A statute may be made to take effect upon a future 
 contingency, like the enactment of a similar statute by another 
 State or the formal acceptance of the statute by some local 
 subdivision of the State ; or different dates may be assigned 
 for the commencement of the operation of its different 
 provisions. 
 
 Head 1 Kent, Lect. xx, pp. 454-459. 
 (a) 46 St. 98 (114). 
 
 § 268. Of the Division of Statutes into Declaratory and Re- 
 medial, Affirmative and Negative. 
 
 Statutes are divided into many classes upon many different 
 bases of division. In their relation to the other forms of law 
 they are either Declaratory or Remedial. A Declaratory 
 statute is intended to remove a doubt as to the existence or 
 the meaning of some rule of the Unwritten Law or as to the 
 interpretation of a prior statute, or to carry into effect some 
 provision of the Constitution or a treaty. It does not make a 
 new law, but more specifically affirms the old. A Remedial 
 statute is intended to extend or to restrict the operation of 
 some existing rule of law or to establish a new rule, (a) A 
 remedial statute extending the operation of a former rule is 
 called an enlarging statute ; one restricting its operation is 
 known as a restraining statute. Remedial statutes establish- 
 ing new rules are further divided into Affirmative statutes and 
 Negative statutes. Affirmative statutes are those which affirm 
 a new rule without prohibiting the observance of the old. The 
 rights and remedies conferred by such a statute do not super- 
 sede those already in existence, but are cumulative and concur- 
 rent with them, and where they cannot both be made available
 
 §§ 269,270 THE WRITTEN LAW: STATUTES. 253 
 
 by any person he can elect between them. But Negative 
 statutes, on the contrary, repeal the former law and confer 
 exclusive rights and remedies, (b) The character of a statute, 
 as affirmative or negative, is determined not by its language 
 but by its effect. 
 
 Head 1 Bl. Com., pp. 86, 87, 89 ; Black, Ch. xv, §§ 139-141. 
 (a) 45 St. 700 (715-71*). 
 
 (/y) 12 I). 257; 15 D. 462, note ; 56 D. 331, note; 28 D. 
 525, note. 
 
 § 269. Of the Division of Statutes into Public and Private. 
 
 In reference to the persons to whom statutes are directed 
 they are divided into Public and Private. A Public statute 
 concerns the government, or the public interest, or all persons, 
 or the whole of any class of persons, (a) A Private statute 
 relates to a single person or a few persons of a class and lias 
 no special reference to the community at large, (b) In legal 
 authority and dignity public statutes are superior to private 
 statutes. Courts of the same State take judicial notice of their 
 contents and effect ; they need not be pleaded nor proved ; they 
 are evidence of the facts which they recite. Private statutes, 
 on the other hand, must be pleaded and proved (c), and their 
 recitals are evidence only between the parties, (d) A private 
 statute, whatever its real character, may be declared by the 
 legislature which enacts it to be a public statute and thus 
 become entitled to the same recognition from the courts. 
 
 Read 1 Bl. Com., p. 86; 1 Kent, Lect. xx, pp. 459. 460; Cooley, 
 Const. Lim., Ch. xi. pp. 389-397. 
 
 (a) 23 1). 537, note. 
 
 (i) 5 Wall. 268 ; 20 D. 360 (369). 
 
 (c) 6 Pet. 317. 
 
 (//) 17 Wall. 3i'. 
 
 * 270. Of the Division of Statutes into General and Local. 
 
 According to the extent of the territory which they affect 
 statutes are divided into General and Local. A General
 
 254 AMERICAN JURISPRUDENCE §§ 271, 272 
 
 statute is in force throughout the entire territory of the State. 
 A Local statute governs only the persons and property within 
 a limited area. The charter of a public corporation, a statute 
 regulating elections in certain cities, laws prohibiting fishing 
 in particular rivers, are instances of local statutes. Local 
 statutes are not necessarily private statutes. They may be of 
 a public character in themselves, or may be declared public 
 statutes by the legislature, («) 
 
 Read (a) 69 D. 642, note; 21 St. 772, note. 
 
 § 271. Of the Division of Statutes into Perpetual and Tem- 
 porary. 
 
 As to their duration statutes are divided into Perpetual and 
 Temporary. A Perpetual statute has no period fixed during 
 which it shall continue to be law. Most statutes are of this 
 description, although, of course, they may be at any time 
 repealed. A Temporary statute is one whose duration is- 
 limited either by its express language or by the nature of the 
 subject to which it relates. The duration of a Bankrupt Act, 
 or other statute intended to meet a transient emergency, may 
 be thus predetermined. Such statutes may be either public 
 or private, (a) 
 
 Read (a) 26 D. 631 (640). 
 
 § 272 Of the Division of Statutes into Mandatory and 
 Directory. 
 
 In reference to the obligations they impose statutes may 
 be Mandatory or Directory. A Mandatory statute commands 
 that certain things shall be done or be forborne. It is im- 
 perative, and the persons to whom it is addressed have no 
 option as to its obedience; and where it prescribes a mode of 
 acting, acts not conforming to that mode are void. A Direc- 
 tory statute points out methods in which legal acts may be 
 performed, but does not oblige any one to follow them, and 
 if other methods previously existed these may still be ob- 
 served. A statute permitting service of process to be made
 
 § 273 THE WRITTEN LAW: STATUTES. 255 
 
 by publication, for example, does uot deprive an officer of 
 the right to make a personal service if he has the opportun- 
 ity, but a statute commanding publication would leave him 
 no alternative. This distinction in some respects resembles 
 that between affirmative and negative statutes, but applies 
 rather to statutes which impose an obligation than to those 
 which confer a right. Whether a statute is mandatory or 
 directory is frequently ascertainable from the auxiliary verbs 
 which it employs, such as "may," "must," or "shall;" but 
 these are not always conclusive. "When the tenor and pur- 
 pose of the law requires it "shall" will signify a permission, 
 and "may" will import a command. (a) 
 
 Read Black, Ch. xii, §§ 123-129. 
 
 («) 33 D. 320; 7G D. 736; 28 St. 333; 4 Wall. 435; 156 
 U. S. 353. 
 
 § 273. Of the Division of Statutes into Prospective and Retro- 
 spective. 
 As to the period in reference to which they exercise con- 
 trol over persons and property statutes are either Prospective 
 or Retrospective. A Prospective statute contemplates only 
 the future and commands or directs what is thereafter to be 
 flone or to be forborne. All statutes are presumed to be of 
 this character unless they are clearly retrospective, (a) A 
 Retrospective statute changes the legal conditions which 
 have resulted from past acts or forbearances, either depriv- 
 ing the parties interested of advantages which if the law 
 remained unchanged they would enjoy, or relieving them 
 from obligations which under the former law they had in- 
 curred. That within certain limits legislative bodies have 
 the power to enact retrospective statutes is undeniable. But 
 they cannot defeat vested rights of property nor impair con- 
 tract obligations. So long as these forbidden effects are not 
 produced, they may confirm past public grants, ratify the 
 unauthorized acts of public officers and agents, remit Legal 
 penalties, perfect informal titles, and change the methods of 
 applying legal remedies. Strictly construed, such statutes,
 
 256 AMERICAN JURISPRUDENCE. §§ 274, 275 
 
 though dangerous in principle, rarely work injustice. On 
 the contrary, they prevent the evils which would otherwise 
 result from human ignorance or inadvertence. 
 
 Read (a) 20 Wall. 179 (187). 
 
 § 274. Of the Validity of Statutes in General. 
 
 The validity of a statute depends not merely on the fact of 
 its enactment by a lawfully constituted legislative body act- 
 ing according to the modes prescribed by the Constitution of 
 the State, but also on the character of its subject-matter. 
 The powers of a legislative body are not unlimited. Statutes 
 which it enacts with every due solemnity may nevertheless 
 be utterly invalid because they contain matter over which 
 it has no jurisdiction or prescribe duties which it has no 
 authority to impose. Statutes must, therefore, always be 
 considered in view of these limitations upon legislative 
 powers. Such limitations are twofold: (1) Those which 
 grow out of the inherent character of legislative bodies, and 
 their relations to the State; (2) Those which arise out of 
 the State or Federal Constitution, (a) 
 
 Read (a) 1 R. 215. 
 
 § 275. Of the Validity of Statutes as Affected by the Rela- 
 tions of the Legislative Body to the State. 
 
 A legislative body is not the State, nor does it possess in- 
 herent sovereignty. It is a mere agency through which the 
 organized people undertake to discharge certain govern- 
 mental functions whose final purpose is their mutual advance- 
 ment and security. («) It cannot transcend the authority 
 which has been conferred upon it by the State either ex- 
 pressly or by implication from the nature of the State and 
 its own office as a legislative body, nor can it do any act 
 which tends to defeat the purposes for which the State was 
 formed. (0) Thus in all States where the ultimate sover- 
 eignty resides in the people their supreme legislative bodies 
 are themselves controlled by a higher law which, whether
 
 § 275 THE WKITTEN LAW \ STATUTES. 257 
 
 written or unwritten, constitutes the test by which the valid- 
 ity of their own enactments is to be determined. This is not 
 precisely the same question as that concerning the constitu- 
 tionality of a legislative act unless the word "constitution " 
 is extended to embrace the whole framework and all the un- 
 derlying principles and objects of the State. Where a State 
 is created by a written Constitution which confers upon it all 
 its powers its legislature can perform every legislative act 
 enumerated in the Constitution, and can perform no more. 
 The fact that acts enumerated may prove detrimental to 
 the State may be a reason why the Constitution should be 
 changed, but cannot limit legislative power. The fact that 
 other acts, not enumerated in the Constitution, would be bene- 
 ficial to the State does not authorize the legislature to per- 
 form them. In such a State the higher law is written in the 
 Constitution, and the Constitution thus becomes the sufficient 
 and the only test by which the validity of legislative acts is 
 measured. This is the case with the United States — the 
 nation — whose Constitution fixes the exact limits within 
 which legislative power may be exerted and in which all 
 invalid laws are also unconstitutional. But in a State whose 
 written Constitution is a limitation of pre-existing powers, 
 under which all unasserted governmental powers retain their 
 former comprehensiveness and vigor, the acts of legislative 
 bodies may be invalid although they are not mentioned or 
 referred to in the Constitution. Prior to the adoption of the 
 written Constitution the legislative power was not without 
 its limits, established by the nature of the State and those 
 fundamental principles of the social compact which underlie 
 all governmental action irrespective of constitutional provi- 
 sions. These unwritten and irremovable limitations are not 
 destroyed or superseded by tin 1 written Constitution, though 
 many of them may be expressed therein, and legislative en- 
 actments which exceed them are no less invalid than if they 
 violated the words as well as spirit of the Constitution. The 
 Constitutions of our individual States, being such limitations 
 of pre-existing powers, therefore do not present the sole test 
 of the invalidity of statutes promulgated by their several 
 
 1:
 
 258 AMERICAN JURISPRUDENCE. § 276 
 
 legislatures, but in addition to their written Constitutions 
 there is still in force the unwritten higher law to whose 
 necessary and unchanging principles the enactments of the 
 legislative body must also conform, (c) 
 
 Read (a) 31 D. 313 (329-331); 87 D. 52; 27 St. 106; 31 St. 
 284, note; 36 St. 608. 
 
 (b) 20 D. 360; 97 D. 575; 15 St. 460 (463-465); 48 D. 
 
 178; 74 D 572; 79 D. 236. 
 
 (c) 48 D. 248, note ; 35 D. 326, note. 
 
 § 276. Of the Validity of Statutes as Affected by the Inherent 
 Limitations of Legislative Bodies. 
 
 A legislative body, in that it is a legislative body, is subject 
 to certain fundamental limitations, from which no legislative 
 body can depart, among which are : (1) That a legislature 
 cannot exert executive or judicial powers. The distinction 
 between judicial, executive, and legislative functions is 
 inherent in the nature of things, and where the people, in 
 organizing the State, have distributed these among different 
 governmental agencies neither can intrude into the dominion 
 of the others. The creation of a legislative body and its 
 endowment with legislative powers excludes it from partici- 
 pating in executive or judicial powers. Not that the same 
 group of persons may not be constituted a judicial body, an 
 executive body, and a legislative body, and exercise now one 
 and then another of these different functions, its own legal 
 capacity and its relations to the State changing as it transfers 
 its attention from one of these duties to another. But as a 
 legislative body it cannot even then sit in judgment upon 
 controverted questions nor administer the laws which it 
 enacts, (a) Thus while a legislature may amend or repeal one 
 of its own former statutes it cannot interpret or explain its 
 meaning, for this is a judicial function confided only to the 
 courts, (b) Nor can it by a recital in a later statute testify 
 that an earlier statute has been repealed, though it may now 
 formally repeal the statute, if it will, (c) (2) That a legisla- 
 ture cannot delegate its powers. Legislative power does not
 
 S 276 THE WRITTEN LAW : STATUTES. 259 
 
 originate with the legislative body. Its source is in that 
 sovereignty which resides in the State alone, and every legis- 
 lative body holds and exercises it only as the delegate and 
 agent of the State. Its right to be a legislative body and to 
 discharge legislative functions does not include the right to 
 call into existence other legislative bodies and strip itself of 
 any portion of its own power in order to confer it upon them. 
 It may use them as instruments through whose aid it fulfils 
 its own duties, as where the legislature of a State makes laws 
 for local subdivisions of the State through the agency of 
 public corporations. It may ordain that the operation of its 
 own enactments shall be contingent, upon their acceptance or 
 rejection by the people of the whole State or of any part 
 thereof, but it cannot give to such acceptance or rejection the 
 character and authority of an independent legislative act. (d) 
 (3) That a legislature cannot by any act limit the powers of 
 succeeding legislatures. It is of the essence of sovereignty 
 that it should exist at all times complete, absolute, and su- 
 preme. If it were possible that sovereignty could lapse or be 
 suspended even for a moment the State would in that moment 
 cease to be. But the State exercises sovereignty principally 
 and primarily through its legislative bodies, whose acts are, 
 therefore, supreme and absolute save for the limitations put 
 upon them by the organic law or Constitution of the State 
 itself. That the supreme and absolute authority of a legis- 
 lative body should be controlled by any restrictions laid upon 
 it by a past legislative body of a jurisdiction not superior to 
 its own involves a contradiction of terms. Hence no legisla- 
 tive act which would restrict the freedom of subsequent co- 
 equal legislative bodies is or can be valid. Subordinate legis- 
 latures are, of course, controlled by the superior legislatures 
 which created them, and which may modify, diminish or with- 
 draw their powers, (e) (4) That a legislature cannot enact a 
 law which palpably infringes any of those rights to assert and 
 defend which the State has been established. The sovereignty 
 of the State, although unlimited in measure or degree, exists 
 only for specific purposes which taken together constitute the 
 welfare and advancement of the people of the State, and any
 
 260 AMERICAN JURISPRUDENCE. § 276 
 
 action of its governmental agencies which is subversive of 
 these purposes is necessarily beyond their powers. What the 
 State itself could not do without a violation of its highest 
 obligations to its citizens no institution of the State can law- 
 fully perform. Whenever, therefore, a statute enacted by the 
 legislature is so absurd, unjust, or impracticable as to defeat 
 the objects for which the government was organized the statute 
 is invalid. In cases where this question is in doubt the law 
 must stand, since it is for the legislative body alone to judge 
 in doubtful cases whether its acts are expedient and wise ; and 
 hence a statute which merely contravenes the individual con- 
 science or imposes severe burdens on the citizen is not on that 
 account without authority. But where the enforcement of the 
 law must inevitably deprive the citizen of rights which it is the 
 purpose of the State to protect, or must commit the State to 
 policies which are in contradiction of its own principles of gov- 
 ernment, the legislature has transcended its inherent limitations 
 and the law is null and void. (/) (5) That a legislature can- 
 not lose its powers by failing to assert them. The sovereignty 
 of the State, whose authority the legislative body exercises 
 and in whose name it speaks, never is suspended and never 
 dies. The powers confided to it are to be exerted by it at 
 the time and in the mode provided by the State's organic law, 
 and, when this is silent, at its own discretion. Its acquiescence 
 in existing conditions, therefore, does not sanction them nor 
 bar it from interfering with them whenever in its judgment 
 the time for action has arrived, (jj) 
 
 Read 1 Bl. Com., pp. 90, 91; Cooley, Const. Lim., Ch. v; 
 Cooley, C. Law, Ch. iv, pp. Ill, 112. 
 
 (a) 33 D. 346; 36 D. 543; 55 D. 499; 75 D. 616; 24 D. 
 
 517; 82 D. 583; 98 D. 237; 4 Dall. 14. 
 
 (b) 2 Cranch, 272; 104 U. S. 668 (677-679). 
 
 (c) 97 U. S. 546 (518, 549). 
 
 (d) 47 D. 4*0; 59 D. 506; 61 D. 508 (516); 17 R. 425; 
 
 29 R 407; 37 R. 6; 45 St. 650; 72 D. 664, 
 00 56 D. 723; 111 U. S. 746. 
 
 (f) 20 Wall. 655; 113 U. S. 1 ; 37 St. 206 ; 58 D. 786; 
 
 30 D. 430 ; 40 D. 274 ; 40 St. 17. 
 
 (g) 94 U. S. 155.
 
 § 277 THE WRITTEN LAW : STATUTES. 261 
 
 § 277. Of the Validity of Statutes as Affected by the State 
 and Federal Constitutions. 
 
 In addition to those limitations upon legislative power 
 which grow out of the inherent nature of a legislative body 
 and its relations to the State are those imposed expressly or 
 by necessary implication by the written Constitution of the 
 State. The character of these depends upon the nature of 
 the Constitution as a limitation or a grant of powers. Xo 
 act of Federal legislation can be valid unless within the 
 powers conferred upon the legislative body by the Federal 
 Constitution. All acts prohibited by the State or Federal 
 Constitutions are likewise null and void. (a) Of the latter 
 three are of especial moment, namely: (1) Statutes defeat- 
 ing vested rights of private property; (2) Statutes impairing 
 the obligation of contracts; (3) Ex post facto laws. The 
 ownership of public property and the regulation of the use 
 of private property are always within legislative control, (b) 
 But with the ownership of private property the legislature 
 cannot interfere so far as to deprive its owner of rights in it 
 which already have accrued, unless it becomes necessary to 
 destroy the property in order to protect the public health or 
 safety, or to appropriate it to the public use upon making 
 suitable compensation to its owner, (c) Over the obligation 
 which the law imposes by virtue of a contract upon the con- 
 tr icting parties at the time the contract is made, future legis- 
 lation also lias no power. While it may change the indirect 
 consequences flowing from the execution of the contract or 
 from the failure to perform it, or may vary the remedies open 
 to the parties injured by its breach, provided a substantial 
 remedy which existed at the making of the contract still re- 
 mains, the rights and duties created by the contract as be- 
 tween the parties cannot be disturbed. (d) This constitutional 
 limitation does not apply to contracts concerning public prop- 
 erty or to marriage, nor to incorporeal statutory rights, nor 
 prohibit laws affecting future contracts. (V) Nor can a legis- 
 lative body by any contract of its own. on behalf of the 
 State, incur an obligation which will prevent it or a future 
 legislature from taking any action necessary to protect the
 
 262 AMERICAN JURISPRUDENCE. § 278 
 
 lives or health or property of citizens. Ex post facto laws, 
 by which, subsequently to their commission, innocent acts 
 are made crimes, or the gravity of offences is increased, or 
 penalties are aggravated, or disabilities imposed on the 
 offender, are always void.(/) 
 
 Read 1 Kent, I.ect. xix, pp. 407-439. 
 (a) 41 St. 109 (113); 46 St. 315. 
 (6) 36 D. 441 ; 97 D. 82. 
 
 (c) 4 St. 172. 
 
 (d) 10 St. 266. 
 
 (e) 38 D. 317 ; 25 R. 513 ; 125 U. S. 190 ; 91 D. 262 ; 121 
 
 U. S. 282. 
 (/) 124 U. S. 200. 
 
 § 278. Of the Jurisdiction of Courts over Questions concern- 
 ing the Constitutionality and Validity of Statutes. 
 
 The constitutionality and validity of statutes are questions 
 which the courts only can decide, and these questions they 
 will not consider unless essential to the decision of the con- 
 troversy in which they arise, (a) Nor can these questions be 
 raised except by litigating parties upon whose rights the 
 disputed statutes might exercise a prejudicial influence, (b) 
 When in the course of regular proceedings these questions 
 come before the courts for judgment the statutes are sus- 
 tained unless the conflict between them and the fundamental 
 law is evident, (c) That the court might deem them inex- 
 pedient, impolitic, severe, is not sufficient, (d) The remedy 
 for such legislation is in the hands of the people and their 
 representatives, not of the courts. Where a statute separ- 
 able into distinct and independent rules of conduct is clearly 
 invalid as to some and may be valid as to others, the court 
 must give effect to those provisions which are valid although 
 it is compelled to declare the others void. 
 
 Read 1 Kent, Lect. xx, pp. 447-454. 
 
 (a) 13 D. 484; 44 D. 593 (603-605) ; 54 D. 379. 
 (6) 2G D. 631 (634, 635) ; 4 St. 147. 
 
 (c) 36 D. 543 (545). 
 
 (d) 02 D. 424.
 
 §§ 279, 280 THE WRITTEN LAW : STATUTES. 263 
 
 § 279. Of the Suspension and Expiration of Statutes. 
 
 A statute may expire by its own limitation, or may be at 
 any time suspended or repealed. The suspension of a stat- 
 ute may result either from a direct act of the legislature 
 operating on that statute, or from some general rule of law 
 affecting all statutes of that class under similar conditions. 
 Thus the local Bankrupt Laws of the individual State may 
 be suspended during the existence of a National Bankrupt 
 Act, or Statutes of Limitation be inoperative while war pre- 
 vails between the countries of the creditor and debtor. A 
 suspended statute is not abrogated even temporaril}-, but still 
 governs all those cases which are not excluded from its juris- 
 diction by the suspending act or condition, (a) 
 
 Read (a) 3 Dall. 365. 
 
 § 280. Of the Repeal of Statutes. 
 
 A statute may be repealed either by the express words or 
 by the necessary implications of a subsequent statute, (a) An 
 express repeal terminates the existence and the force of the 
 repealed statute to the precise extent which the language of 
 the repealing statute may require. Repeal by implication is 
 never favored in the law and will take place only so far as 
 the repugnancy between the earlier and the later statute is 
 evident and irreconcilable, (b) Thus a statute is not repealed 
 by a subsequent affirmative statute if both can stand, nor by 
 the re-enactment of the same statute with additions ; (c) nor 
 is a particular or special statute rescinded by a later general 
 statute unless it is specifically mentioned. (</) But a nega- 
 tive statute, or a new statute covering the whole subject, or 
 the adoption of a code or a revision from which the former 
 statute is excluded, or a legislative act removing the reason 
 of the statute, or its re-enactment with the portions now 
 claimed to be repealed omitted, or the passage of a statute 
 evidently intended by the legislature as a substitute for 
 former legislation on the subject, or the entrance of the State 
 into treaty relations which are inconsistent with existing
 
 264 AMERICAN JURISPRUDENCE. § 281 
 
 statutes, operate to the extent of the repugnancy as a re- 
 peal, (e) A penal statute is repealed by any legislative change 
 iu the nature of the offence or the degree of punishment, but 
 not necessarily by an alteration in the kind of penalty to be 
 inflicted (/); though as to past offences such an alteration 
 would give the statute an ex post facto aspect, and render it 
 invalid. The recital in a statute that a former statute 
 was repealed is neither its repeal nor evidence that it has 
 been repealed. 
 
 Read 1 Bl. Com , p. 90 ; 1 Kent, Lect. xx, p. 466. 
 
 (a) 15 D. 156; 14 D. 206, note; 1 D. 488 (496). 
 
 (6) 16 Pet. 342; 79 D. 490; 82 D. 163. 
 
 (c) 11 Wall. 652; 106 U. S. 596; 137 U. S. 682; 157 
 
 U. S. 46. 
 ((/) 17 Wall. 425 ; 109 U. S. 556. 
 (e) 58 D. 100; 11 Wall. 88; 97 U. S. 546; 143 U. S. 18 
 
 (26, 27). 
 (/) 34 D. 492; 70 D. 302; 25 R. 760. 
 
 § 281. Of the Effect of the Repeal of a Statute. 
 
 The repeal of a statute cannot affect rights which had pre- 
 viously become vested under it, though inchoate rights will 
 be destroyed, (a) If the repealed statute conferred jurisdic- 
 tion upon courts or other public officers, with its repeal this 
 jurisdiction ceases, and all incomplete proceedings before 
 them become null and void, (b) The repeal of a penal stat- 
 ute without conditions abrogates all the penalties which it 
 inflicted except those which have been already imposed upon 
 convicted criminals by the sentence of the courts, (c) When 
 a repealing statute is itself repealed the law which it abro- 
 gated is revived, unless a contrary intention of the legisla- 
 ture is apparent or the abi-ogated law is inconsistent with 
 other statutes passed since it was repealed, (d) 
 
 Read (a) 23 D. 478; 39 D. 601, note; 56 D. 688. 
 
 (b) 12 1). 479, note; 36 D. 185; 5 Wall. 541 ; 7 Wall. 
 
 506; 98 U. S. 39S; 101 U. S. 433 ; 137 U. S. 141. 
 
 (c) 94 D. 214, note ; 13 How. 429. 
 
 (d) 36 D. 228.
 
 § 282 THE WRITTEN LAW: STATUTES. 265 
 
 § 282. Of the Validity of the Legislative Acts of Subordinate 
 Legislative Bodies. 
 
 The foregoing doctrines apply not merely to statutes passed 
 I by the legislature of a State or nation, but, so far as the mat- 
 ters subject to their jurisdiction will permit, to the subordi- 
 nate forms of Written Law, such as municipal ordinances, 
 corporate by-laws, and the rules of courts. The validity of 
 these depends not only upon their correspondence with the 
 fundamental principles of law and the written Constitution 
 of the State, but upon the provisions of the charters of these 
 different corporations and the authority conferred by the 
 State upon its courts. Such ordinances, rules, and by-laws 
 may be declaratory or remedial, public or private, affirma- 
 tive or negative, temporary or perpetual, general or special, 
 mandatory or directory, prospective or retrospective. They 
 must be enacted according to the methods determined by the 
 law, and may be suspended or repealed by the legal author- 
 ity from which they proceed, or be abrogated by the legisla- 
 ture of the State.
 
 266 AMERICAN JURISPRUDENCE. 8 283 
 
 CHAPTER IX. 
 
 OF THE INTERPRETATION OF LAW. 
 
 § 283. Of the Necessity for an Authoritative Interpretation of 
 the Law. 
 The words in which a rule of law is expressed convej^, more 
 or less accurately, its true meaning and intent. When both 
 the language and the mental concept which it clothes pro- 
 ceed from the same legislative authority the correspondence 
 between the words of the law and its true intent should be 
 the closest possible, and what the words as used by the legis- 
 lative body actually mean or imply must be accepted as the 
 rule of law. Such is the case with Written Law in all its 
 forms, — Constitutions, Treaties, Statutes, Codes. When the 
 ideas embodied in the law have been enunciated in phrase- 
 ology selected by persons not possessing legislative authority 
 but of great legal skill and learning, and in this verbal form 
 have become established by long itsage and general recognition 
 among the duly formulated rules of law, or when the form of 
 words was chosen by persons now unknown but has been uni- 
 versally and immemorially adopted by past generations of 
 lawyers and judges, while it cannot be assumed with the 
 same certainty as in the former case that "the words do ex- 
 press the precise intent of the law-giver, yet custom endows 
 them with an authority only less than that of legislative 
 choice itself. Such expressions of the law are found in the 
 maxims and definitions of the Unwritten Law, and in those 
 utterances of great judges and law-writers, upon whose state- 
 ments of the law succeeding ages have not attempted to im- 
 prove. Where the language in which the rule is couched was 
 framed without legislative authority, and has not received the 
 sanction which general and prolonged acceptance may confer, 
 there is no special presumption in favor of its correctness, and
 
 § 284 INTERPRETATION OF UNWRITTEN LAW. 207 
 
 the accuracy with which it expresses the rule is always subject 
 to investigation. Such are the propositions of the Unwritten 
 Law contained in the decisions of the courts and the treatises 
 of modern legal authors. It is the function of interpretation 
 to discover in all these cases the real intent and meaning of 
 the law, in order that the actual will and purpose of the law- 
 giver in reference to rights and duties, wrongs and remedies, 
 may be accomplished. The power to exercise this function is, 
 under our own political system and that of most other civi- 
 lized States, lodged in the courts, whose application of a rule 
 of law to any state of facts presupposes that they have first 
 ascertained the true significance and purport of the rule, (a) 
 By what principles they are guided in this investigation the 
 present chapter will explain. 
 
 Read Holland, Ch. xviii, p. :371 ; Markby, §§ 72-75; Black, Ch. 
 i, §§ 1-6; Austin, Lect. xxxvii, pp. 624-633. 
 (a) 69 D. 450, note. 
 
 SECTION I. 
 
 OF THE INTERPRETATION OF THE UNWRITTEN LAW. 
 
 § 284. Of the Variety of the Standards Employed in the In- 
 terpretation of the Unwritten Law. 
 Except where rules of the Unwritten Law have acquired 
 authoritative expression an inquiry as to their meaning dif- 
 fers but little from the inquiry as to the essential character 
 of the rule. Strictly speaking, interpretation is an effort to 
 derive from fixed and known verbal premises an abstract and 
 ideal conclusion, as where the positive and unchangeable lan- 
 guage of a statute guides the interpreter to a knowledge of 
 the legislative will. But in the unauthoritative statements of 
 the rules of the Unwritten Law there is no such fixed and 
 changeless verbal standard. Some judges and authors express 
 the rule in one way, some in other ways ; some by deciding in ;i 
 single word the issues of a controverted case ; some by elabor- 
 ate explanations and discussions; and from these and from 
 other sources the investigator must ascertain as best he may,
 
 268 AMERICAN JURISPRUDENCE. § 285 
 
 by one and the same process of research, the existence and 
 the meaning of the rule. For this reason, while the field of 
 his investigation is extensive, the methods by which he pur- 
 sues it are numerous and varied ; sometimes proceeding along 
 the lines of logical inference from universal principles, some- 
 times adopting conclusions demonstrated by experience, some- 
 times guided by examples and analogies, sometimes deducing 
 general rules from the comparison of many particular proposi- 
 tions. Any attempt to classify these sources and methods 
 would be ineffectual. The most useful of the standards to 
 which the interpreter resorts are these : (1) Judicial Decisions ; 
 (2) Self-Evident Principles; (3) Suggestions of Legal Reason 
 and Instinct; (4) Customs; (5) Opinions of Acknowledged 
 Jurists ; (6) Cognate Doctrines of the Unwritten Law ; (7) 
 Laws of Foreign States. 
 
 § 285. Of Judicial Decisions as Interpreters of the Unwritten 
 
 Law. 
 
 A judicial decision is an adjudication by a competent tribunal 
 upon a legal question arising out of a controversy submitted 
 to its judgment and necessary to the determination of the con- 
 troversy. The judgment of an incompetent tribunal is not a 
 judicial decision. The judgment of a competent tribunal upon 
 a question which is not involved in controversy before it, is 
 not a judicial decision. The judgment of any tribunal upon a 
 question involved in the controversy before it, but which it is 
 not necessary to decide in order to decide the controversy, 
 is not a judicial decision. But those propositions of law, 
 whether one or many, whether principal or subordinate, which 
 the court was compelled to pass upon in order to reach the 
 conclusion by which the rights of the contending parties were 
 eventually adjusted and established, taken collectively, consti- 
 tute the decision. These propositions may be expressly stated, 
 or may be left to be inferred from the claims of the litigants 
 and the final disposition of the case. When expressly stated 
 they may be enumerated in didactic formulae or imbedded in 
 an overwhelming mass of explanations and examples. They
 
 § 286 INTERPRETATION OF UNWRITTEN LAW. 269 
 
 may be obvious to the ordinary reader of the case as published 
 in the Reports, or may require laborious research through all 
 the facts and records of the cause for their discover}-. But 
 when discovered they present to the investigator the law of the 
 case, the ratio or rationes decidendi which governed its deter- 
 mination, the rules of law which the court in deciding the 
 case at once obeyed and proclaimed. Then all the illustra- 
 tions and discussions which accompany these propositions in 
 the opinions of the judges or the arguments of counsel ; all 
 the affirmations, admissions, and contradictions in the plead- 
 ings ; all the facts in controversy and the decision of the 
 jury or the judge concerning them, serve to explain the mean- 
 ing of these rules of law and give to them a practical interpre- 
 tation through their application to the circumstances of the 
 individual case. It is in this way that reported cases author- 
 itatively promulgate the law; and the art of analyzing cases so 
 as to discern the rationes decidendi, to distinguish between 
 these and all the other matter which the case contains, and 
 which, however valuable it may be for purposes of explanation, 
 is not as there stated authoritative law, is an art which the stu- 
 dent should endeavor early to acquire. (a) 
 
 Read Black, Ch. xvii. §§ 146-149; Wambaugh, Book i, Ch. ii, 
 iii, v-viii. 
 (a) G Wheat. 264 (399 : 27 D. 628, note; 73 D. 565; G2 
 D. 421 (454); 189 U. S. G49 (679). 
 
 § 286. Of the Comparative Value of Different Judicial Decis- 
 ions as Interpreters of the Unwritten Law. 
 A judicial decision may occupy toward the rule of law which 
 it promulgates and explains any one of three relations : (1) 
 Its promulgation of the rule may have the force of legislation 
 and make the rule the law for future cases as well as for 
 the one in which it has been stated : (2) Its recognition and 
 construction of the rule may raise a strong presumption, not to 
 be departed from without grave reasons, that the rule as 
 promulgated by it is correct ; (3) It may be accepted as con- 
 clusive in the case to which the rule has been applied, and as
 
 270 AMERICAN JURISPRUDENCE. § 287 
 
 suggesting a rule which subsequent tribunals are at liberty to 
 follow or reject. When the decision emanates from the su- 
 preme court in a State it becomes a law governing all future 
 cases arising in the same State until it is superseded by a 
 statute or over-ruled by a new decision of the same court, (a) 
 When it is rendered by an inferior court it is presumed to be 
 correct and is of great, though not conclusive, authority in 
 all courts of an equal or inferior grade in the same State, until 
 the rule is finally settled by the supreme court of the State 
 or by a statute. A decision proceeding from the courts of one 
 State has no force as law in any other State except when it 
 becomes the duty of that State, under a treaty or the comity 
 of nations or the provisions of a confederate Constitution, to 
 carry into effect the laws of the State in which the decision 
 has been made ; but still may have great weight where the 
 customs and traditions of both States are the same, or where 
 the decision was rendered by a court composed of judges dis- 
 tinguished for their legal learning, or when it has been gen- 
 erally accepted and followed in other States where the same 
 question has arisen. Decisions of the courts of foreign States, 
 except under the circumstances just mentioned, may be of 
 great utility as suggestive of the rule of law but possess no 
 authorit}^. 
 
 Read Ram, Leg. J. Ch. iii, v, xiv-xvi, xviii; Black, Ch. xvii, 
 §§ 153-161. 
 (a) 37 D. 761 (767). 
 
 § 287. Of the Value of Judicial Decisions upon Analogous 
 Cases as Interpreters of the Unwritten Law. 
 In addition to the service rendered by judicial decisions 
 through their direct promulgation of law, they perform another 
 of scarcely inferior consequence. In connection with the rule 
 of law which they announce there is, in most instances, a state 
 of facts to which the rule applies. This state of facts not only 
 serves, like an object lesson, to interpret the meaning of the 
 rule, but forms a connecting link between the rule and every 
 other state of facts in any degree resembling these, thus sug-
 
 § 288 INTERPRETATION OF UNWRITTEN LAW. 271 
 
 gesting to the legal mind such modifications of the rule as 
 reason and justice might require in order to adapt it to new 
 states of fact varying in some respects but not altogether from 
 the old. This is the process by which the courts advance 
 with certainty and confidence into hitherto untrodden ground, 
 reasoning by analogy from a decided case to cases which must 
 evidently be governed by rules differing from that already 
 promulgated just in proportion to the difference between the 
 former and the present state of facts. The practical import- 
 ance of this process and its influence upon the evolution of the 
 law cannot be overestimated. As every new state of facts is 
 necessarily a development from a former state of facts, so does 
 the rule of law which governs the new facts grow out of the 
 rule by which the old facts were controlled. As the new state 
 of facts comes into existence the new rule of law, not yet 
 indeed discerned and formulated, springs by logical necessity 
 out of the ancient rule, waiting to be perceived and promul- 
 gated by legislative or judicial authority whenever the occasion 
 for it may arise. Thus the courts are never without rules 
 which they can apply to whatever cases may be brought before 
 them. If no rule previously established will adequately meet 
 the facts, investigation properly conducted will disclose the 
 new rule which the analogies between the former and the 
 present facts evolve out of the old, and enable the courts to 
 define, declare, and apply it to the controversy which they 
 now are to decide. The logical certainty of this process and 
 the reliability of its results depends upon the correctness of the 
 decision in which the previous rule has been directly promul- 
 gated and the accuracy with which the legal difference between 
 the old and the new state of facts is measured, (a) 
 
 Read Austin, Frag. pp. 989-1020. 
 («) 28 D. 70. 
 
 § 288. Of Judicial Decisions as Interpreters of the Authorita- 
 tive Verbal Expressions of the Unwritten Law. 
 Of the judicial decisions contained in the reports of Eng- 
 land and America many are occupied with the interpretation
 
 272 AMERICAN JURISPRUDENCE. § 289 
 
 and application of those rules of the Unwritten Law which 
 have received authoritative expression in maxims, definitions, 
 and the like, and to the meaning of which their language, 
 therefore, furnishes a controlling guide. The effect of these 
 decisions, as well as the process by which they are reached, is 
 different from those just described in reference to rules of the 
 Unwritten Law which are by the decision of the court not 
 simply interpreted but for the first time declared. The method 
 and effect of these decisions is the same as if they were devoted 
 to the construction of a rule formulated by a legislative body, 
 and consequently their discussion finds its place hereafter 
 when the sources from which the meaning of the Written Law 
 is to be derived will be explained. 
 
 § 289. Of Self-Evident Principles and Popular Customs as 
 Interpreters of the Unwritten Law, 
 In aid of the foregoing method of ascertaining and inter- 
 preting the Unwritten Law the self-evident and fundamental 
 principles which underlie all rules of law, and with which 
 every rule of law must necessarily agree, may be considered, 
 both for the interpretation of existing rules and as a source 
 from which new rules may be derived. The highly trained 
 legal reason and instinct of the lawyer who is thoroughly 
 grounded in these principles furnishes one of the best stand- 
 ards by which what the law ought to be and consequently 
 what the law must be may be accurately judged. Where rules 
 are open to more than one mode of statement or more than one 
 interpretation, or where it is doubtful which of two or more 
 conflicting rules truly represents the law, a comparison of their 
 respective probable results if carried into practical operation 
 discloses which is most in harmony with public policy or the 
 principles and purposes of civil government, and therefore 
 which must be the true expression and interpretation of the 
 law. (a) The custom of the people acting, as they suppose, in 
 accordance with the law may, when the custom is evidently 
 reasonable, just, and beneficial, give to the law its real intent 
 and meaning, sinre the custom of the people is, to a large
 
 §§ 290, 291 INTERPRETATION OF UNWRITTEN LAW. 270 
 
 extent, the source of the Unwritten Law, and what it may 
 create it can, of course, construe. 
 
 Read Ram, Leg. J. Ch. i, ii, iv, vi, vii, xvii. 
 («) 166 U. S. 290 (340). 
 
 § 290. Of the Writings of Jurists as Interpreters of the Un- 
 written Law. 
 The writings of jurists learned in the law afford a further 
 guide to its rules and their interpretation. Not every judge 
 who writes opinions, not every text-book author even if of 
 exuberant fertility, is an authority in whom the student of 
 the law can safely place his' trust. But where such writers 
 have demonstrated their ability to grasp great principles and 
 draw from them their logical conclusions, to analyze and dis- 
 tinguish cases, to comprehend states of fact and their analo- 
 gies, to weigh and compare authorities, in a word, to be 
 competent investigators as well as intelligible reciters of the 
 law, their opinions are often of the highest value; although 
 of few of them can it be stated as Lord Chief Justice Hobart 
 said of Littleton on Tenures: "The sayings of Mr. Littleton 
 are adjudged for law and are judgments." 
 Read Markby, §§ 101-103. 
 
 § 291. Of the Reciprocal Interpretative Value of Cognate 
 Branches of Law. 
 The relations between the different branches of the law are 
 such that an examination of the rules embraced in one may 
 often throw light upon the nature, scope, and meaning of the 
 rules pertaining to another. There is a certain analogy and 
 also an antithesis between the law of torts and the law of 
 crimes, between the law of personal property and the law of 
 real property, between the law of contract and the law 
 of family rights, and the rules of either may thus tend to 
 show what those of the other ought or ought not to be. In 
 the same manner the laws of foreign States of kindred politi- 
 cal theories and traditions, the condition of whose people 
 
 18
 
 274 AMERICAN JURISPRUDENCE. § 292 
 
 does not differ materially from our own, illuminate and in- 
 dicate our law by virtue of the presumption that universal 
 human wisdom will in similar circumstances dictate similar 
 rules. Thus have the Unwritten Laws of England and 
 America since the separation of the colonies from the mother 
 country continually enriched themselves from one another, 
 and among all civilized nations the process is in some degree 
 in constant operation. The influence which the Civil Law of 
 Rome has exercised upon our own within the present century 
 has been exerted chiefly in this manner, our courts and jur- 
 ists borrowing unhesitatingly from it whenever the foregoing 
 methods of interpretation left in doubt the character and 
 meaning of our own Unwritten Law. 
 
 § 292. Of Finality in the Interpretation of the Unwritten Law. 
 
 The declaration and interpretation of a rule of the Unwrit- 
 ten Law reaches no final result until the rule receives a per- 
 manent verbal form either by its enactment as a statute or 
 by its universal and continued recognition as a maxim or a 
 definition of the Unwritten Law. Up to that time the rule 
 is subject to reannouncement, and to enlarging or restrictive 
 interpretations, as different judicial officers may be affected 
 in different ways or to a different extent by the considera- 
 tions heretofore discussed. The uncertainty as to the scope 
 and application of the rule which this implies is more than 
 compensated for by the perfection in which such a prolonged 
 and critical elaboration of the rule results, and by its flexi- 
 bility until such perfection is attained. A court confronted 
 svith a rule which it can legitimately and logically expand, 
 contract, or modify to fit the justice of the case at bar, offers 
 a happy contrast to a court whose only rule is fixed in per- 
 manent, unequivocal language, within whose natural meaning 
 it must find the law appropriate to the facts, or leave the 
 case unjudged.
 
 §§ 293, 294 INTERPRETATION OF WRITTEN LAW. 275 
 
 SECTION II. 
 
 OF TE1E INTERPRETATION OF THE WRITTEN LAW. 
 
 § 293. Of the Function of Interpretation in reference to the 
 "Written Law. 
 A rule of law once clothed in authoritative words super- 
 sedes all unauthoritative statements of the rule, and thence- 
 forth becomes, according to its true verbal interpretation, the 
 only rule upon the point which it assumes to cover. If the 
 words are susceptible of but one meaning, that meaning fixes 
 the precise limits of the rule, (a) If the words have no mean- 
 ing, or if their only possible meaning renders the rule as 
 stated utterly absurd and impracticable, the rule is null and 
 void. But where. the words are capable of two or more in- 
 terpretations, between which a selection must be made in 
 order to determine the scope and application of the rule, an 
 exercise of judicial powers becomes necessary whereby that 
 meaning of the rule which accurately expresses the legisla* 
 tive will may be ascertained and authoritatively declared. 
 
 Read Black. Ch. iii, §§ 24-28. 
 
 00 130 U. S. 662; 55 D. 376; 175 U. S. 414 (419-421), 
 
 § 294. Of the Interpretation of Ordinary Words. 
 
 The words of a law are to be interpreted according to their 
 common acceptation by the people of the State at the time of 
 their enactment or other authoritative expression. This rule 
 is based on the self-evident truth that as the legislative 
 authority has employed these words, as a means of conveying 
 to the people a knowledge of its will, it must have chosen 
 them because, as commonly understood by the people, they 
 expressed its will. If the words thus interpreted are (dear, 
 the interpreter cannot go beyond them. They constitute the 
 law; nothing can be added to them nor subtracted from 
 them. The operation of the law extends to whatever its let- 
 ter may embrace, but matters not within the letter are not 
 within its spirit, nor can the interpreter inquire into its
 
 276 AMERICAN JURISPRUDENCE. §§ 295, 296 
 
 •wisdom or utility or into the motives of the legislative body 
 which prescribed it. That legislative body had the power 
 to make the law as it has made it; it is presumed to have 
 intended just exactly what it has expressed; and therefore 
 the interpreter can have no other duty but to give its lan- 
 guage full effect, (a) 
 
 Read 1 Bl. Com., p. 59 ; 1 Kent, Lect. xx, pp. 462, 463 ; Black, 
 
 Ch. v, § 56. 
 (a) 58 D. 272 ; 63 D. 139 ; 71 D. 559 (563) ; 74 D. 522, 
 
 note; 94 D. 115 (116, 117); 16 How. 251. 
 
 § 295. Of the Interpretation of Technical Words. 
 
 Technical words, or those peculiar to some science, art, or 
 trade, or intended and understood to be used by the legisla- 
 tive body in a special sense, are to receive the meaning which 
 their technical character requires. This meaning may be 
 ascertained from persons familiar with the art or trade or 
 science to which the words pertain, or from books relating 
 to the subject, or from the contemporaneous circumstances 
 which indicate the purpose of the legislative body in select- 
 ing these particular words in which to formulate its will. 
 
 Read Black, Ch. v, §§ 57-58. 
 
 § 296. Of the Interpretation of Ambiguous Words by the 
 Context. 
 AY here any of the words in which a rule of law is clothed 
 are ambiguous, recourse must be had to extrinsic standards 
 to ascertain their true interpretation. The first of these to 
 be resorted to is the context. Every word of a law bears to 
 every other word of the law the relation of context, and may 
 serve as an aid to the elucidation of its meaning, (a) Some- 
 times a rule of law expressly defines its own words, and in 
 such a case these definitions determine the interpretation of 
 the words. Where in any portion of a law the meaning of 
 a given word is obvious it must have the same meaning wher-
 
 § 296 INTERPRETATION OF WRITTEN LAW. 277 
 
 ever else in the law it may occur, unless there is some mani- 
 festation of a legislative intent to bestow upon it a different 
 meaning. Doubtful words may be explained by other words 
 with which they are grammatically connected, as adjectives 
 by their nouns or nouns by their verbs. General words may 
 be restricted by particular ones which are used elsewhere in 
 the same rule as their equivalents, and narrow words may be 
 enlarged by broader ones when evidently intended to express 
 the same ideas, (b) But an indefinite general expression fol- 
 lowing a particular and definite one never extends its opera- 
 tion, nor is interpreted to include things or persons of superior 
 dignity, value, or jurisdiction to those particularly named. 
 Thus the phrases "dogs or other animals," "yachts and other 
 vessels," "haywards and other officers," "idiots or other per- 
 sons," refer only to dogs, yachts, haywards, and idiots, and 
 do not embrace any other and higher animals, vessels, offi- 
 cers, or persons within the meaning of the law.(c) More- 
 over, the entire rule of law must be considered, and all its 
 words and necessary implications must receive such an inter- 
 pretation as to render its construction, as a whole, harmoni- 
 ous and consistent. (d) Language which in its literal meaning 
 would make the rule impracticable or absurd, or would defeat 
 the evident intention of the rule, must be presumed to have 
 been used in some other one of its possible applications. 
 Thus "may" which ordinarily implies only permission means 
 "shall" or "must" in rules of law which impose duties upon 
 public officers or affect public interests or the rights of third 
 persons; while "shall" though mandatory in ordinary use 
 becomes directory only if no right or benefit depends upon 
 the act described, (e) 
 
 Read 1 Bl. Com., pp. 88, 89; 1 Kent, Lect. xx, p. 40:2 : Black, 
 Ch. iii, §§ 32-40, Ch. v, §§ 59-69, Ch. vi. §§ 74. 75, 
 82, 84, Ch. xiii, §§ 130-134. 
 
 (a) 9G U. S. 153 (159, 160). 
 
 (6) 36 D. 723 ; 120 U. S. 678 (690-692). 
 
 (c) 13 Wall. 162 ; 2 St. 373. 
 
 \d) 58 I). 389. 
 
 (<?) 15 D. 464.
 
 £78 AMERICAN JURISPRUDENCE. §§ 207, 298 
 
 § 297. Of the Interpretation of Ambiguous Words by the 
 Title, Preamble, Provisos, or Punctuation. 
 The title and preamble of a statute, as well as its chapter 
 and. section headings, though no part of the rule of law and 
 unable to restrict or extend its positive provisions, may still 
 have an interpretative value when in spite of the investigation 
 of the context the statute as a whole, remains obscure, (a) 
 Resort may also be had to its mode of punctuation, although 
 this is usually of slight importance, the punctuation being 
 determined by the sense rather than the meaning by the 
 punctuation. (l>) Where the enacting clauses are coupled with 
 provisos, these may modify but can neither extend nor repeal 
 the enacting clauses and must be confined, if possible, to what 
 immediately precedes them. (c) 
 
 Read 1 Bl. Com., p. 89; 1 Kent, Lect. xx, pp. 460-461; Black, 
 
 Ch. vi, §^ 76-81, Ch. x, §§ 107-112. 
 (a) 30 D. 574 ; 41 St. 304 ; 2 Cranch, 358 (3S6) ; 3 Wheat. 
 
 610 (631) ; 5 Wall. 107 ; 143 U. S. 457 (462, 463); 
 
 23 D. 471 (473, 474); 46 D. 100 (102, 103); 15 D. 
 
 633. 
 (&) 105 U. S. 77 (84, 85). 
 (c) 15 Pet. 141 (165)5 15 Pet. 423. 
 
 § 298. Of the Interpretation of Ambiguous Words by Statutes 
 In Pari Materia. 
 
 A rule of law is its own best interpreter, and unless it proves 
 insufficient for the purpose no exterior aid can be employed. 
 Where it is insufficient recourse must next be had to other rules 
 of law tn pari materia, that is, relating to the same subject. 
 Here opens usually a wide field for investigation. All the 
 rules of the Unwritten Law and all the provisions of the 
 Constitutions, treaties, and statutes relating to the same sub- 
 ject are in pari materia, whether they are general or special in 
 their application, whether they are prior or subsequent to the 
 rule of law under consideration, whether they are now current 
 or have been repealed, (a) Emanating from the same political 
 authority they are all of equal force and taken together they 
 constitute but one law which must, if possible, be so interpreted
 
 § 299 INTERPRETATION OF WBITTEN LAW. 279 
 
 as to be at all times consistent with itself. For the purpose 
 of interpreting the ambiguous words of any portion of this 
 law, all the other portions may be regarded as a context. The 
 same meaning which attaches to them in that portion of the 
 law in which they first appeared follows them through all 
 their subsequent appearances unless a contrary intent is 
 evident ; and where the courts have once construed a term or 
 phrase, the same construction is given to it whenever it is 
 afterwards employed, (b) Should all these laws be gathered 
 into one and in this form be re-enacted by the legislature as a 
 partial code or a Revision, although the original rules would 
 be thereby repealed, the policy and meaning of the law would 
 not be changed unless expressly so declared, and in interpreting 
 the law in its new form the prior laws would still be taken as 
 a guide, (c) 
 
 Read 1 Bl. Com., p. 60 ; 1 Kent. Lect. xx, pp. 463, 464 ; Black, 
 Ch. vii, § 86, Ch. xiv. §§ 133-138. 
 
 (a) 38 D. 317(319); 51 D. 746 (750, 751); 10 St. 48, note; 
 
 41 St. 630; 3 How. 556; 109 U. S. 556 (561); 121 
 T. s. 278. 
 
 (b) 3 D. 265; 22 D. 203; 34 D. 116 (117, 118); 62 D. 
 
 714; 98 U. S. 440. 
 
 (c) 15 D. 156; 100 U. S. 508; 110 IT. S. 619 (628, 629). 
 
 § 299. Of the Interpretation of Ambiguous Words by Judicial 
 Decisions. Popular Custom, or General Opinion. 
 If what the legislative authority of the State has formally 
 prescribed in reference to the subject-matter of a rule of law- 
 does not remove all doubt as to the verbal meaning of the 
 rule, the general opinion or custom of the people or the judg- 
 ment of the courts concerning it may be considered. When 
 the statute of a State has once been authoritatively interpret) il 
 by the highest judicial tribunal of that State the interpretation 
 becomes part of the statute and it must thereafter be held to 
 mean precisely what the court lias rims declared. When 
 courts of other States apply this statute, not as their own law. 
 but as the law of the state where it lias been interpreted, they
 
 280 AMERICAN JURISPRUDENCE. § 300 
 
 cannot give it any other meaning but must follow that which 
 it has already received. When other States adopt this law 
 into their own they adopt also its construction, but not the 
 additions or interpretations which may be subsequently made. 
 Thus English statutes re-enacted in this country after their 
 meaning has been settled by the British courts, or statutes 
 of a State adopted by the United States and made Acts of 
 Congress, have the same meaning which the English courts in 
 one case or the State courts in the other may have given 
 them. («) When no judicial interpretation of a statute has 
 yet been attempted the mode in which it has been understood 
 and applied by public officers and the people of the State may 
 answer the same purpose. (l>) While public usage cannot 
 alter the law, it furnishes evidence of the construction given 
 it by those to whom it was prescribed and by whom it must be 
 presumed to have been properly understood and faithfully 
 observed. (<:•) The universal contemporaneous interpretation 
 given to a law by those whose duty it was to execute it or obey 
 it is thus justly regarded as among the most reliable indications 
 of its true intent and meaning, (d) 
 
 Read Black, Ch. v, § 70, Ch. vii, §§ 85, 88-90, Ch. xvi, §§ 142- 
 145. 
 («) 8 St. 643 (645) ; 32 St. 656, note ; 42 St. 627 (638) ; 
 84 D. 582; 5 Pet. 264: 133 U. S. 216; 161 U. S. 
 591. 
 
 (b) 46 D. 447 (449-451) ; 110 U. S. 219 ; 142 U. S. 615. 
 
 (c) 26 D. 379. 
 
 (rf) 19 D. 722; 107 U. S. 402; 114 U. S. 411; 124 U. S. 
 236. 
 
 § 300. Of the Interpretation of Ambiguous Words by the 
 Apparent Intent of the Legislative Body in Employ- 
 ing Them. 
 
 The essence of a law is the legislative intent which it em- 
 bodies, and its words interpreted by the context and by other 
 laws on the same subject, or by the courts or even by the 
 common opinion of the people, are supposed to manifest 
 clearly that intent. But it is possible that with all these aids
 
 § 300 INTERPRETATION OF WRITTEN LAW. 281 
 
 the words may still be obscure and that it may be necessary 
 to look to the intent through other media in order to ascertain 
 the meaning of the words. Amoug these media are certain 
 legal presumptions, the circumstances attending the enactment 
 of the law, and its apparent general purpose and effect. 
 Some things a legislative body is presumed not to intend. 
 These are: to transcend its legislative powers, to prescribe 
 laws which are unconstitutional or absurd or unjust or con- 
 trary to the fundamental principles of the social compact, to 
 impose legal obligations or liabilities upon the State, to limit 
 the authority of future legislatures, to give protection to fraud, 
 to alter the jurisdiction of the courts, or unnecessarily change 
 the existing laws. Its legislative acts must be interpreted in 
 harmony with these presumptions, unless the unmistakable 
 language of its laws compels a contrary construction. Again, 
 the occurrences which attended the enactment of the law may 
 more or less reveal the attitude of the legislative mind toward 
 its various provisions. The minds of individual legislators 
 are not the legislative mind and their utterances in speeches 
 and debates have little bearing on this question, (a) But the 
 contemporaneous circumstances relating to the proposal of the 
 law for legislative action, its history, its amendments, and 
 final adoption, as these appear upon the authenticated journals 
 of the legislature may be consulted, and from them conclusions 
 may be drawn as to the ideas which its language was intended 
 to convey, (b) The legislative intent thus ascertained gives 
 their true meaning to the words, restricts them when too 
 general, extends them when too narrow, defines them when 
 uncertain, (c) Cases within the spirit of the law but not 
 within its letter are made subject to its operation, and cases 
 not within its spirit but to which its letter might apply are 
 excluded from its influence. (</) Again, the general purpose 
 and effect of the law as a whole, the mischief it was expected 
 to suppress, the benefit it was supposed to confer, the subject- 
 matter which it undertakes to regulate, the natural consequen- 
 ces which attend its practical application, considered in con- 
 nection with the presumed intention of the legislature to enact 
 just, reasonable, and useful laws, may indicate the meaning
 
 282 AMERICAN JURISPRUDENCE. § 301 
 
 which the legislative mind must have endeavored to express 
 and give its language an interpretation consistent with the 
 purpose which the law was evidently intended to fulfil, (e) 
 
 Read 1 Bl. Com., pp. 60, 61 ; 1 Kent, Lect. xx, p. 465; Black, 
 Ch. iii, §§ 29-31, Ch. iv, §§ 41-55, Ch. vii, §§ 87, 
 91-93. 
 
 (a) 58 D. 589 ; 3 How. 9 (24) ; 91 U. S. 72; 166 U. S. 
 290. 
 
 (&) 148 U. S. 490; 23 Wall. 307. 
 
 (c) 99 U. S. 48; 3 How. 556 (564, 565) ; 144 U. S. 47. 
 
 (d) 12 St. 819, note; 54 D. 639; 69 D. 181. 
 
 (e) 25 D. 677 (678, 679) ; 43 St. 127 (131) ; 7 Wall. 482; 
 
 93 U. S. 634 ; 171 U. S. 30. 
 
 § 301. Of the Rule that Certain Statutes must be Strictly 
 Interpreted. 
 
 In further aid of the foregoing methods of ascertaining the 
 meaning of a law there is a positive but reasonable rule that 
 laws of certain classes shall be strictly interpreted while laws 
 of other classes shall be liberally construed. A strict inter- 
 pretation, in this sense of the phrase, excludes from the opera- 
 tion of the law everything which is not clearly embraced 
 within its letter. "When liberally construed the letter is en- 
 larged, if necessary, to meet the general intent and purpose 
 of the law. The laws to which a strict interpretation must 
 be given are these: (1) Penal laws, or those which impose a 
 penalty in favor of the public upon a person guilty of a public 
 wrong ; and these must be so construed in favor of the 
 alleged offender as not to subject him to the. penalty unless he 
 comes within the necessary meaning and intent of the law (a) ; 
 (2) Laws entailing forfeitures or punitive damages, or in 
 derogation of the customary rights of security, liberty, or 
 property ; these if possible must be interpreted to prevent the 
 forfeiture and preserve the right ; (3) Laws in derogation of 
 any right existing under the Unwritten Law ; these are not 
 to be suffered to suspend or modify the right beyond the 
 requirements of the letter of the law (b) ; (4) Laws conferring
 
 § 801 LNTERPKETATION OF WRITTEN LAW. 283 
 
 police powers on public officers by virtue of which they are 
 enabled to interfere peremptorily with persons and property 
 in order to protect the public health and safety ; and these 
 can never be extended to cases not specifically mentioned in 
 the law (r) ; (5) Laws exempting special persons from general 
 liabilities or imposing special liabilities upon particular indi- 
 viduals (d) ; (6) Laws in pursuance of the sovereign rights of 
 taxation and eminent domain ; (7) Laws creating monopolies 
 or other exclusive privileges ; these are to be construed most 
 strongly against the grantee ; (8) Laws delegating or surren- 
 dering or suspending governmental powers (e) ; (9) Laws 
 conferring the right to sue the State ; (10) Laws instituting 
 statutory remedies or proceedings, or in any manner affecting 
 the jurisdiction of the courts (/) ; (11) Laws having a possi- 
 ble retrospective operation ; these are to be confined to cases 
 clearly within the words of the law (<y) ; (12) Laws apparently 
 repealing previous laws ; these are not supposed to operate 
 as a repeal beyond the irreconcilable repugnancy between the 
 old law and the new ; (13) Laws specially enacted to promote 
 some private interest or remove some private disability ; 
 these, like other concessions of the sovereign, are limited to the 
 words and necessary implications of the grant ; (14) Provisos 
 restricting the enacting clauses of statutes, except in penal 
 statutes where a strict construction of the entire law as a 
 whole may require that the proviso should be liberally in- 
 terpreted. 
 
 Read 1 Bl. Com., p. 88; Black. Ch. ix, §§ 100-104, Ch. xi, 
 §§ 113-116, 119-122. 
 (o) 18 St. 800; lo D. LOO; 71 D. 522; 10 St. 23, note; 
 
 6 Wall. 385 (395, 396) \ L34 U. S. 624 (628, 629). 
 (/,) 97 1). 125. 
 
 (c) 123 I". S. 623. 
 
 (d) 18 Wall. 206 (/J?:., 226); 116 U. S. 665. 
 (. ) 138 U. S. 287. 
 
 (/) 8 Wall. 51 ; 97 U. S. 659. 
 
 (g) 87 1). 240; 88 D. 622; 17 Wall. 596; 20 Wall. 179 
 (187).
 
 284 AMERICAN JURISPRUDENCE. §§ 302, 303 
 
 § 302. Of the Rule that Certain Statutes must be Liberally 
 Interpreted. 
 The rule of liberal construction applies to all remedial legis- 
 lative acts, to which class a large proportion of all laws be- 
 long. Such acts, being intended to remove existing obstacles 
 to public welfare, are to be given their full force and effect in 
 view of the nature of the evil, the causes of the inability of 
 the former law to cope with it, and the character of the rem- 
 edy which the new law apparently endeavors to apply. So 
 far as the language of the law, without violence to its plain 
 and necessary signification, can be interpreted to cover the 
 purpose of the legislative body, it must be done, (a) Words 
 used in an erroneous sense must be corrected, superfluous and 
 misleading words must be eliminated, and necessary omitted 
 words must be supplied, until its language, as interpreted, be- 
 comes intelligible and complete according to the measure of 
 the spirit of the law. But no interpretative process, however 
 liberal, can make or change a law. A clear rule of a legisla- 
 tive body stands precisely as it is expressed, neither narrowed 
 by a strict nor extended by a liberal construction, (b) 
 
 Read 1 Bl. Com., pp. 87, 88; 1 Kent, Lect. xx, p. 465; Black, 
 Ch. ix, §§ 105, 106, Ch. xi, §§ 117, 118. 
 («) 21 D. 608. 
 (b) 51 D. 142; 22 How. 290; 130 U. S. 662. 
 
 § 303. Of the Applicability of the Foregoing Rules to all Ver- 
 bal Forrns of Law. 
 The foregoing methods of interpretation are applicable to all 
 rules of law which have received a permanent and authorita- 
 tive verbal form, so far as the extrinsic facts exist from which 
 conclusions as to them may be derived. All of them are use- 
 ful and most of them are available for the construction of 
 statutes, many of them for the interpretation of Constitutions 
 and treaties, and of the maxims and definitions of the Un- 
 written Law. (a) Few rules of law have a context so meagre, 
 are so isolated in subject-matter, so peculiar in purpose, so
 
 § 303 INTERPRETATION OF WRITTEN LAW. 285 
 
 untried in application, that some guide cannot be found to 
 their true meaning, unless they are so unintelligible as to be 
 altogether void. 
 
 Read Black, Ch. ii, §§ 7-23; 2 Whart. I. L. Dig. § 133. 
 (a) 100 U. S. 483 ; 133 U. S. 258.
 
 286 AMERICAN JURISPRUDENCE. 8 304 
 
 CHAPTER X. 
 
 OF THE APPLICATION OF LAW. 
 
 § 304. Of the Practical Administration of Law. 
 
 The law becomes an active social force through its practical 
 application to the conduct and affairs of men. Its enactment 
 and interpretation leave it still an abstract rule, a standard 
 and expression of rights and duties, bat inoperative either to 
 protect the one or to enforce the other. The abstract rule 
 must be transmuted into life and be embodied in actions and 
 forbearances before society can reap its benefits or the pur- 
 poses for which it is ordained can be accomplished. The 
 agencies through which this practical application of the law 
 is made are these : (1) The people of the State at large ; (2) 
 Its legislative bodies ; (3) Its executive officers ; (4) Its courts. 
 Of these the latter is to the student of law the most im- 
 portant, and the only one here requiring an extended notice. 
 Undoubtedly by far the greater number of instances in which 
 the rules of law are practically applied occur in the sponta- 
 neous, unintermitting correspondence of the conduct of well 
 disposed and intelligent citizens with the rules of action estab- 
 lished by the State. Legislative bodies in the performance of 
 their constitutional functions carry into effect a portion of the 
 laws they have themselves prescribed. Executive officers in 
 all departments of the government are constantly engaged in 
 interpreting and applying the rules by which their various 
 official acts are governed. But though the sphere occupied 
 by these three agencies is vastly greater than that filled by 
 the courts, and is of special interest to the statesman and 
 economist, yet it is in the courts that through the open re- 
 dress and punishment of wrongs the laws defining and assert- 
 ing rights and imposing their correlative duties are publicly 
 expounded and their sanctions visibly and irresistibly applied.
 
 § 305 COURTS IN GENERAL. 287 
 
 The courts are the common ground on which the State and the 
 citizen meet together, the one to exert, the other to submit to, 
 that supreme political authority which is expressed in the 
 enactment and enforcement of the laws ; and as historically 
 the law has been developed in all its elaborate details from 
 crude and general ideas through the action of the courts in 
 applying remedies to wrongs, so are they still the source from 
 which the lawyer and the citizen must derive their knowledge 
 and imbibe their spirit of obedience to the law. 
 
 SECTION I. 
 
 OF COURTS IN GENERAL. 
 
 § 305. Of the Nature of Courts. 
 
 A court is a tribunal created by the State for the decision 
 of controversies concerning legal rights and for the preven- 
 tion, redress, or punishment of legal wrongs, (a) It consists 
 of one or more judges together with such other officers, clerks, 
 sheriffs, jurors and the like as may be necessary for the 
 transaction of its business according to law. (6) It originates 
 in a constitutional provision or statute of the State by which 
 its authority is conferred and its powers are defined. (c) It 
 exists as a court only while its necessary members are as- 
 sembled and in actual session at the time and place prescribed 
 by law.(rf) It can take judicial action only upon a contro- 
 versy between contesting parties presented to it in due form 
 of law for its adjudication. (e) Tribunals of this character 
 are said to have been organized in Egypt in prehistoric ages, 
 from whence they were adopted into Athens prior to b. c. 
 1500, and have thence been copied throughout the civilized 
 world. 
 
 Read 3 Bl. Com., pp. 23-25 ; Wilson. Part ii, Ch. iii, pp. 75-87. 
 
 (a) 35 D. 54 (66 69 . 
 
 (b) 24 I). 517; 20 R. 50; 84 D 114, note. 
 
 (c) 10 St. 143; 31 St. 350; 118 l\ S. 425(441-449). 
 (rf) 86 I). 643 (646); 16 St. 224. 
 
 (0 82 D. 448; 48 D. 349, note.
 
 288 AMERICAN JURISPRUDENCE. §§ 306, 307 
 
 § 306. Of the General Jurisdiction of Courts. 
 
 The judicial powers of a court are known as its jurisdic- 
 tion. Jurisdiction is the authority to hear and adjudge 
 a controversy and to carry the judgment into practical 
 effect, (a) This jurisdiction is conferred by the State and is 
 defined by law. Over matters outside its jurisdiction a court 
 has no control, and all its acts in reference to such matters 
 are wholly void.(7>) As to matters within its jurisdiction its 
 judgments are valid and are binding upon the persons and 
 property concerned. Jurisdiction may be made dependent 
 either upon the subject or the parties to the controversy, (c) 
 Where it depends upon the subject, no other subject can be 
 brought within the jurisdiction of the court by the agreement 
 of the parties or the direction of the judge, (d) Where it 
 depends upon the parties, they may waive personal privi- 
 leges exempting them from its control, but cannot impute to 
 themselves jurisdictional qualifications which they do not 
 possess, (e) 
 
 Read Cooley, Const. Lim., Ch. xi, pp. 398-413. 
 
 (a) 86 D. 643 (646); 24 St. 366 (369) ; 76 D. 662, note. 
 
 (b) 47 D. 242 ; 11 St. 808; 1 Pet. 328 (340). 
 
 (c) 12 Pet. 524 (623) ; 17 How. 424 ; 24 How. 195 ; 93 
 
 U. S. 274; 95 U. S. 714; 106 U. S. 350. 
 
 (d) 3 St. 106 : 103 U. S. 11; 14 St. 138; 22 Wall. 322. 
 
 (e) 72 D. 319 (320) ; 42 St. 121. 
 
 § 307. Of the Special Jurisdiction of Courts. 
 
 Jurisdiction dependent upon the subject may be condi- 
 tioned either upon its character, its quantity, or its situa- 
 tion. To some courts are entrusted controversies concerning 
 crimes, to others controversies in reference to estates held in 
 trust or to maritime torts and contracts, to others claims 
 within certain fixed limits of value, to others litigation in- 
 volving property within a given territory. No State can 
 confer upon its courts jurisdiction over subjects beyond its 
 own borders (a), nor can the parties by any fictitious change 
 in the nature or the quantity of the subject bring it within
 
 § 308 COURTS IN GENERAL. 289 
 
 the jurisdiction of a court to which it does not legally be- 
 long.^) In like manner jurisdiction dependent on the per- 
 son may be conditioned either upon the status of the person 
 or his domicile or his temporary presence within the territo- 
 rial jurisdiction of the court. The control of infants or in- 
 sane persons and their property, the authority to determine 
 questions arising in the course of official business, the right 
 to decide controversies between the residents of certain dis- 
 tricts, may vest in different tribunals, while any court may 
 acquire jurisdiction over persons upon whom its process may 
 be lawfully served within the region to which its judicial 
 power extends, (c) 
 
 Read (a) 54 D. 630 ; 79 D. 440 ; 36 St. 750 ; 18 Wall. 350. 
 
 (b) 12 D. 508, note; 15 D. (V-'/J. 
 
 (c) 15 D. 39 ; 53 St. 165, note. 
 
 § 308. Of the Indirect Jurisdiction of Courts. 
 
 Jurisdiction, whether dependent upon the person or the 
 subject, may indirectly affect subjects and persons over which 
 the court has no immediate authority. When property is 
 within its jurisdiction it may take cognizance of controver- 
 sies concerning it, although the owner is beyond its reach, 
 and may deprive him of his alleged rights therein notwith- 
 standing that the force of its judgment is exhausted when the 
 property is disposed of according to its decrees, (a) On the 
 other hand, when it has jurisdiction over the person of 
 the owner, it may compel him to employ or convey the prop- 
 erty in obedience to its orders, although the property itself 
 is situated in a district over which it lias no control. (/>) An 
 action may be brought in any court having jurisdiction over 
 the subject and the parties. Where there an' two or more 
 tribunals of identical authorit}', the one to which the contro- 
 versy is first submitted retains exclusive jurisdiction over 
 it.(c) After a court lias rendered judgment in a controversy 
 its jurisdiction over the subject and the parties is presumed, 
 but this presumption is not conclusive and may at any time 
 be overcome by proof that the subject was beyond its judicial 
 
 19
 
 290 AMERICAN JURISPRUDENCE. § 309 
 
 authority or that the parties were not legally, and could not 
 by consent have placed themselves, within its jurisdiction, (rf) 
 
 Read Story, Conf . L. § 30. 
 
 (a) 10 Wall. 308; 95 U. S. 714; 7 R. 147; 20 R. 695. 
 
 (b) 16 How. 1 (13); 10 Wall. 464 (475) ; 94 U. S. 444 
 
 (448-450). 
 
 (c) 9 Wheat. 532 ; 112 U. S. 294 ; 47 D. 377; 2 R. 581; 
 
 23 R. 412. 
 
 (d) 10 Pet. 449 ; 18 Wall. 350 (365-368) ; 83 D. 446, note ; 
 
 94 D. 742, note. 
 
 § 30'9. Of the Inherent Powers of Courts. 
 
 In addition to its judicial powers or jurisdiction every 
 court has certain inherent powers which are necessary to its 
 administration of justice within its jurisdiction and to pre- 
 vent the failure or abuse of its process. Among these are 
 the power to establish rules for the conduct of the business 
 which may be brought before it, and to enforce, repeal, or 
 suspend them at its discretion (a) ; the power to appoint, 
 supervise and remove clerks, attorneys, and other officers (b); 
 the power to make, preserve, correct, and replace the records 
 of its proceedings (c) ; the power to preserve order during its 
 sessions; the power to enforce its decrees (d); and the power 
 to punish for contempt. A contempt of court is an offence 
 against the sovereignty of the State as represented by the 
 court, and consists in any acts or words which tend to dero- 
 gate from the dignity of the court or to interrupt the course 
 of justice, or in wilful and pertinacious disobedience to its 
 lawful commands. Publications calculated to prejudice the 
 people against the court or its judges or to influence the 
 jury in a pending case, trifling with witnesses or jurors, 
 attempts to mislead the court by false averments in the 
 pleadings or to forestall its action by obtaining its opinion 
 on a controversy about to be submitted to its judgment, a 
 breach of the peace or other misconduct in the presence of 
 the court or in the place set apart for its use and that of its 
 officers, are examples showing the nature of this offence. A 
 court can proceed to try the offender without a jury and on
 
 §§ 310, 311 COURTS IN GENERAL. 291 
 
 its own knowledge of the contempt, and may punish it by- 
 fine and imprisonment to such an extent as to vindicate the 
 dignity of the court and secure obedience to its orders. Per- 
 sons charged with contempt have a right to purge themselves 
 upon oath of any intentional disrespect, and this purgation 
 may be accepted by the court in satisfaction for the offence, 
 or it may take such further action as the rights of other par- 
 ties and the interests of public justice may require, (e) 
 
 Read (a) 41 St. 634, note. 
 
 (b) 19 How. 9. 
 
 (c) 12 1). 350, note ; 70 D. 100; 73 D. 565- 80 D. 189; 
 
 1 St. 191; 6 St. 587. 
 (</) 49 1). 509. 
 (e) 90 D. 671, note; 98 D. 404, note; 56 R. 360, note; 
 
 13 Wall. 335; 19 Wall. 505; 107 U. S. 265; 167 
 
 ('. S. 409; 50 St. 508, note. 
 
 § 310. Of the Terms or Sessions of Courts. 
 
 Judicial functions can be exercised by courts only while 
 they are in actual session at the times and places and in the 
 manner prescribed by law. Proceedings at another time or 
 place or in another manner, though in the personal presence 
 and under the direction of the members of the court, are 
 coram non judice and void. The period fixed by law during 
 which a court must be in session is called a term. The term 
 begins on the first day of the prescribed period, at the hour 
 when the court is organized and opened for the transaction of 
 judicial business, and continues until the court is formally 
 adjourned without day.(a) The customary limits of the term 
 may be extended when necessary by temporary adjournments 
 until the business of the term is finished 
 
 Read (a) 17 1). 365. 
 
 § 311. Of the Proceedings and Judgments of Courts. 
 
 The methods of investigation adopted by a court in examin- 
 ing the merits of a controversy and bhe mode in which it reaches 
 and enforces its judgments vary with the character of the court.
 
 292 AMERICAN JURISPRUDENCE. § 312 
 
 The final judgment of a court of competent jurisdiction over 
 the parties and the subject is conclusive upon the parties and 
 their privies in reference to the same subject-matter, in any ac- 
 tion in which the same object is sought and the same questions 
 are raised, until the judgment is reversed or modified upon a 
 writ of error or appeal, (a) The original demand concerning 
 which the controversy arose is merged in the judgment, and 
 no suit on it can thereafter be maintained, (b) The judgment 
 becomes the foundation of any future claim, and may be di- 
 rectly enforced by further process of the court or made the 
 subject of a new suit to recover the amount awarded to the 
 victorious party, (c) A judgment cannot be collaterally at- 
 tached except for want of jurisdiction, or for fraud practised 
 by means of it upon third parties or by the prevailing party on 
 the court ; but a direct proceeding to vacate or reverse it may 
 be instituted according to the modes provided by the local 
 law. (d) The judgments of the courts of one State or sover- 
 eignty may be made binding upon those of other States by 
 comity or constitutional provisions, as is the case between the 
 State and Federal courts (e), and the courts of one State of the 
 American Union and the others (/"), or between the courts of 
 a foreign nation and our own. (g) 
 
 Read Story, Conf. L. §§ 584-618 1. 
 
 (a) 39 St. 156 ; 15 St. 138 ; 53 D. 350, note ; 60 D. 426, 
 
 note ; 62 D. 546; 41 D. 675; 26 St. 91; 37 St. 228; 
 
 26 D. 131 ; 77 D. 651 ; 81 D. 626, note. 
 (6) 15 D. 78. note. 
 
 (c) 83 D. 350; 92 D. 410. 
 
 (d) 22 St. 611 ; 23 St. 95 ; 3 St. 616 ; 6 D. 88; 79 D. 244 ; 
 
 21 Wall. 398 (426, 427); 98 U. S. 61. 
 
 (e) 15 R. 660. 
 
 (/) 44 D. 562; 55 D. 494; 73 D. 683; 169 U. S. 432 
 
 (459-462). 
 (g) 1 D. 316. 
 
 § 312. Of Courts of Record and Courts not of Record. 
 
 Courts are divisible into courts of record and courts not of 
 record. A court of record is a tribunal exercising judicial
 
 § 313 COURTS IN GENERAL. 293 
 
 functions under an authority from the State which is inde- 
 pendent of any personal privilege or official power residing in 
 the magistrate appointed to hold it, proceeding according to 
 the provisions of the general law of the land, and recording its 
 determinations in official rolls whose statements import absolute 
 verity and cannot be contradicted by any evidence, nor amended 
 except by the order of the court itself or by a writ of error or 
 an appeal. A court not of record is a tribunal whose judicial 
 power is commensurate with that of the person appointed to 
 hold it, of whose proceedings no official record is kept, or whose 
 records are not indisputable but may be examined both as to 
 their existence and the truth of their contents by subsecpient 
 tribunals. In England the King's courts were all courts of 
 record, the manor courts and other courts of inferior jurisdic- 
 tion were courts not of record. In this country, whether a 
 court is of one class or the other depends upon the terms 
 of the statute or the constitutional provision which creates 
 it. (a) 
 
 Read 3 Bl. Com., pp. 24, 25. 
 (a) 31 D. 760. 
 
 § 313. Of Courts of Superior, Inferior. General, or Limited 
 Jurisdiction. 
 Another division of courts is into courts of inferior and 
 superior jurisdiction. An inferior court is one whose judg- 
 ments are open to review by a higher tribunal through some 
 form of error or appeal. Such courts have no power by impli- 
 cation except what may be necessary to the exercise of their 
 expressly granted powers. A court of superior jurisdiction is 
 one whose judgments are final, and whose jurisdiction over all 
 matters upon which it undertakes to act, though not expressed, 
 is presumed until the contrary appears. This second classifi- 
 cation of courts closely resembles, and in some respects in- 
 volves the same distinctions as the third, which is into courts 
 of general jurisdiction and courts of limited jurisdiction. A 
 court of general jurisdiction is endowed with judicial author- 
 ity over controversies of various and indefinite species, and
 
 294 AMERICAN JURISPRUDENCE. §§ 314, 315 
 
 controversies of every kind are presumed to be within its ju- 
 risdiction unless they have been specifically and exclusively 
 entrusted to some other tribunal. The records of such courts 
 import absolute verity, and need not contain recitals of the 
 facts upon which the jurisdiction of the court in any given 
 case depends. A court of limited jurisdiction is one to which 
 certain defined and enumerated species of controversies are 
 committed. Over any other cases it has no jurisdiction, and 
 even as to these its records must recite the facts on which its 
 judicial authority over them is based, (a) 
 
 Read (a) 5 Cfanch, 173; 12 Pet. 657 (718-720); 48 D. 194; 
 54 D. 217. 
 
 § 314. Of Appellate, Civil, Criminal, or Provisional Courts. 
 
 A superior court before which the decision of an inferior 
 court may be brought for re-examination and adjudication is 
 called an appellate court. A civil court is one in which the 
 prevention or redress of private wrongs is sought through 
 actions instituted by private parties who apprehend or have 
 already suffered injury. A criminal court is one before 
 which the State prosecutes, in its own name and behalf, per- 
 sons who are accused of public wrongs. Provisional courts 
 are temporary tribunals established by military commanders 
 in conquered territories pending the pacification of the country 
 and the organization of the customary courts of the State. 
 These are courts of record and may be courts of general 
 jurisdiction. 
 
 § 315. Of Legal Controversies. 
 
 To every controversy submitted to a court for its decision 
 there must be at least two parties, — the claimant and his 
 antagonist, — and this is equally true whether the claim is 
 made Iry or against the public, or against an article of prop- 
 erty, or against a private individual. The claimant is vari- 
 ously known in different courts as the plaintiff, the petitioner, 
 the libe/lant, the proponent, the prosecutor, while his antagc-
 
 § 316 COUUTS IN GENERAL. 295 
 
 nist is called tlie defendant, the respondent, the lihellee, the 
 opponent; their relations to one another under all these dif- 
 ferent names being substantially the same. The methods 
 through which they make known their adverse claims to the 
 court are styled the pleadings. The examination of the 
 questions of law and fact raised by the pleadings constitutes 
 the trial, resulting in the judgment by which the issues 
 between the parties are determined and the controversy is 
 permanently settled. The number of parties is not, however, 
 necessarily confined to two. Controversies may arise in 
 which many conflicting interests may be involved, and where 
 each must be separately represented in order that justice may 
 be meted out to all. In such cases the parties may be as 
 numerous as the interests involved, and each may participate 
 in the pleadings, trial, and judgment according to the nature of 
 his claim, (a) 
 
 Read (a) 81 D. 626. 
 
 § 316. Of the Various Systems of Courts. 
 
 Were States created with deliberate forethought by a people 
 gifted with sufficient political wisdom and experience, it might 
 be expected that their judicial as well as their legislative and 
 executive systems would be unitary and homogeneous. But 
 States formed like our own, by gradual and almost impercep- 
 tible development from antecedent political societies, naturally 
 accumulate concurrent and sometimes conflicting institutions 
 through their efforts to meet new conditions by adding new 
 governmental agencies without abolishing the old. Concur- 
 rent and conflicting legislative and executive bodies, operating 
 as they do directly to the public detriment, cannot be toler- 
 ated, and their reconciliation and co-ordination is necessarily 
 and speedily effected. But difficulties of this character in the 
 judicial system, being prejudicial mainly to private individuals 
 and obscurely understood and often believed to" be inevitable 
 by the public at large, may continue indefinitely. And thus 
 it happens that our own judicial system, inherited from Eng- 
 land where before the Revolution it had already become an
 
 296 AMERICAN JURISPRUDENCE. § 317 
 
 aggregation of heterogeneous and sometimes conflicting mem- 
 bers, is composed of various species of courts, differing from 
 one another not merely in jurisdiction but in their methods of 
 procedure and in the nature of the protection or redress 
 which they afford. Eventually this multiplicity and diversity 
 of tribunals must undoubtedly disappear, but it is still neces- 
 sary to consider them as subordinate systems, a knowledge of 
 whose peculiar rules and practices is essential to the student. 
 These subordinate systems are : (1) The Courts of Common 
 Law; (2) The Courts of Equity; (3) The Courts of Probate; 
 (4) The Courts of Admiralty ; and (5) The Extraordinary 
 Courts. A glance at the historical origin and present condi- 
 tion of each of these will not only account for their exist- 
 ence, but also manifest their relations toward one another. 
 
 SECTION II. 
 
 OF THE COURTS OF COMMON LAW. 
 
 § 317. Of the Origin of the Courts of Common Law. 
 
 During the Saxon period of English history the kingdom 
 became politically subdivided into counties, hundreds, and 
 tithings; the tithing consisting of ten families, the hundred 
 of ten tithings, and the county of an indefinite number of 
 hundreds. In each of these subdivisions courts were estab- 
 lished having jurisdiction over local controversies, with a 
 right of appeal from the lower tribunals to the higher, and 
 from the highest to the witenagemote or general assembly 
 of the chief men of the kingdom, over which the sovereign, 
 either personally or by a delegate, presided. After the Con- 
 quest the supreme judicial power resided in the Norman 
 monarch and his assembly of councillors, called the aula 
 regis, to which appeals from other courts became so numer- 
 ous as practically to divest them of all authority and make 
 the aula regis the resort of all suitors. In this court the 
 king was the legal fount of justice, though represented by a 
 chief justiciar, — a magistrate learned in the law and one of 
 the principal dignitaries of the kingdom. Prior to Magna
 
 § 318 COURTS OF COMMON LAW. 297 
 
 Carta, a. d. 1215, the aula regis followed the person of the 
 king in his migrations through the kingdom, but by that 
 royal concession one branch of it, the Court of Common 
 Pleas, having jurisdiction over all controversies concerning 
 land and all private injuries between subject and subject, was 
 permanently established at Westminster. Another branch of 
 the aula regis, the Court of Exchequer, before which contro- 
 versies concerning the royal revenue and incidentally con- 
 cerning private injuries by which the king's debtors were 
 incapacitated to fulfil their obligations to the crown were 
 brought, also became separated from the rest; while the 
 remaining branch, known as the Court of King's Bench, 
 retained its jurisdiction over public wrongs and ultimately 
 acquired civil jurisdiction over many cases involving merely 
 private injuries. These, with various subordinate courts, 
 relics or reproductions of the minor Saxon tribunals, consti- 
 tuted at the date of the American Revolution the system of 
 courts called the Courts of Common Law, to distinguish them 
 from courts of equity and admiralty, and have continued 
 under different names and powers to exercise judicial func- 
 tions over criminal and civil cases, both in England and this 
 country, to the present day. 
 
 Read 3 Bl. Com., pp. 30-46, 55-60; Reeve, Ch. i, pp. 175-180, 
 Ch. ii, pp. 259-278; Maine, Early Law and Custom, 
 pp. 167-189. 
 
 § 318. Of the Topical Jurisdiction of the Courts of Common 
 Law. 
 
 According to the methods of procedure early adopted in 
 these courts a civil action must be commenced by the service 
 of a writ upon the defendant, commanding him to appear in 
 court at a day named and answer to the claim of the plain- 
 tiff. This writ was prepared in the office of the secretary 
 or chancellor of the sovereign and was issued under royal 
 authority. Its statement of the claim of the plaintiff was 
 intended not merely to give notice of its character to the 
 defendant, but to manifest to the court to which the writ was
 
 298 AMERICAN JURISPRUDENCE. § 319 
 
 made returnable that the controversy was within its jurisdic- 
 tion, and for this purpose was made technically exact and 
 perfect to the highest degree. The private wrongs of which 
 the law took cognizance at this period were the exclusion 
 from land of its true owner, the failure to pay a definitely 
 ascertainable debt, the breach of a contract under seal, and 
 the forcible injury of persons and property. Writs suited to 
 all species of these wrongs were gradually devised by the 
 clerks in chancery as occasion for them arose, and were 
 elaborated with great care and skill, and when perfected 
 their forms and contents were adhered to with extreme 
 rigidity. When an injured party applied for a writ, if the 
 facts in his case corresponded with the statement of facts in 
 any known writ, that writ was issued in his favor; if not, 
 no writ could issue and redress was consequently denied him. 
 The effect of this rigid practice was to confine within narrow 
 limits the topical jurisdiction of the common law courts and 
 to leave many meritorious suitors without legal relief. There- 
 fore in a. d. 12S5 a statute was enacted which provided that 
 when a case was presented to the clerks in chancery for 
 which no form of writ could be found, but which was an 
 invasion of a right already recognized by the courts and re- 
 quired a remedy similar to those customarily applied, the 
 clerks should devise a new writ to meet it, and if they were 
 unable to do this, the matter should be laid before the next Par- 
 liament, by which a suitable writ should be prepared. This 
 statute was carried into effect in such a manner as to intro- 
 duce actions for breaches of contract not under seal and for 
 certain injuries without force to persons and property, but 
 left many wrongs equally grievous to the sufferer unre- 
 dressed, and to this day unredressable in the courts of com- 
 mon law. 
 
 § 319. Of the Number of the Parties Litigant in the Courts 
 of Common Law. 
 The trial of a civil case in the courts of common law ordi- 
 narily takes place before a jury of the common people, not
 
 ■20, 321 COURTS OF COMMON LAW. 2 
 
 learned in the law nor highly skilled in the investigation of 
 intricate questions of fact. To bring the ease within their 
 comprehension the pleadings were so framed as to result in a 
 single affirmation and denial, enabling the jury to decide the 
 controversy by simply finding the issue for one party or the 
 other. Under this system the court could take no cogni- 
 zance of controversies involving more than two parties; cases 
 in which three or more conflicting interests must be adjusted 
 remaining, so far as these courts were concerned, without 
 redress. 
 
 Read Walker, Lect. xxxvii, pp. 587-075. 
 
 § 320. Of the Redress Obtainable in Courts of Common Law. 
 The redress afforded by the courts of common law rested 
 entirely upon the theory of compensation for a completed 
 wrong. No suit could be brought until an injury had been 
 committed, and if the plaintiff obtained a judgment the court 
 could award him only the restoration of the property of 
 which he had been deprived, or money- damages collectable 
 out of the property of the defendant or enforceable against 
 his person by his imprisonment until the amount was paid. 
 Against threatened injuries these courts furnished no protec- 
 tion; for injuries which could not be compensated by the 
 restitution of property or the payment of damages they 
 offered no redress. 
 
 § 321. Of the Limitations upon the Jurisdiction of the Courts 
 of Common Law. 
 The ordinary jurisdiction of the courts of common law over 
 civil cases is thus confined within the comparatively limited 
 area of controversies between two parties, which arise out of 
 completed wrongs consisting in a breach of contract or the 
 dispossession of lands or goods or the forcible or consequen- 
 tial injury of persons or property, and which can be ade- 
 quately remedied by the restoration of the property or the 
 payment of money. Extraordinary jurisdiction they may
 
 300 AMERICAN JURISPRUDENCE. §§ 322, 323 
 
 exercise over special cases by virtue of a statute, but the 
 instances of this have hitherto been few and the judicial 
 authority of these courts remains substantially as it was 
 established under the Act of Parliament of a. d. 1285, leav- 
 ing to other courts hereafter described the application of 
 remedies to those injuries to which these methods of redress 
 do not extend. 
 
 SECTION III. 
 
 OF THE COURTS OF EQUITY. 
 
 § 322. Of the Origin of the Courts of Equity. 
 
 The Courts of Equity are a natural outgrowth of social con- 
 ditions, coupled with the limited jurisdiction and the methods 
 of procedure in the courts of common law. Injuries demand- 
 ing redress beyond the power of the common law courts to 
 furnish always have occurred ; and relief for these was neces- 
 sarily sought directly from the sovereign by petition, upon 
 which he or his delegate awarded such compensation or pro- 
 tection as his sense of justice prescribed. The delegate to 
 whom such petitions were ordinarily referred was his chan- 
 cellor, who was not only his secretary, issuing his writs to the 
 courts of common law, but also his chaplain, the keeper of his 
 conscience and the administrator of justice in his name. Thus 
 upon the denial of a common law writ on the ground that no 
 precedent existed for it, or the failure of the courts of com- 
 mon law to fully meet the exigencies of the controversy, an 
 immediate resort to the chancellor was available, by whom 
 the rights of the contending parties could be ascertained and 
 declared. 
 
 Read 3 Bl. Com., pp. 46-55. 429-443; Reeve, Ch. ii, pp. 279- 
 281 ; Walker, Lect. iv, pp. 55-57. 
 
 § 323. Of the Development of Courts of Equity. 
 
 For a long period the power of the chancellor over these 
 cases was advisory rather than judicial, and extended at the
 
 § 324 COURTS OF EQUITY. 301 
 
 farthest to the infliction of ecclesiastical censures which 
 the parties might, if they chose to do so, disregard. But in 
 the reign of Richard II. (a. d. 1377-99) Chancellor Waltham, 
 in the endeavor to oblige a trustee to discharge his duties to 
 his cestui que trust, invented a writ of subpoena by which the 
 parties could be brought before his tribunal and compelled to 
 remain in attendance upon it until his orders were obeyed. 
 The assertion of this authority, which was finally recognized 
 by the sovereign and the people, gave to the chancellor direct 
 jurisdiction over the persons of all the parties to the contro- 
 versy, and enabled him to enforce his decrees, if necessary, by 
 their perpetual detention in the custody of the court. In this 
 manner relief for any kind of legal wrong became practically 
 attainable. T hreatened injuri es could be prevented as well 
 as completed injuries could be redressed by the mandate of, 
 the court. Controversies in which numerous parties were j 
 involved could be as readily adjusted as if two alone were 
 concerned. Instead of an inadequate compensation in money 
 for a breach of duty, the performance of the duty itself could 
 be secured. Even the judgment of a court of common law, if 
 inequitable between the parties, could be rendered nugatory 
 by prohibiting the victorious party from carrying it into 
 effect. And if no court but this of the chancellor had then 
 existed it would seem as if this alone, from the scope of its 
 jurisdiction, the flexibility of its proceedings, and the effi- 
 ciency of its remedies, would have been sufficient for all the 
 purposes of remedial justice in any political or social condition 
 to which the people of England might have attained. 
 
 § 324. Of the Conflict between the Courts of Equity and the 
 Courts of Common Law. 
 
 This growth of equity jurisdiction was not, however, without 
 strenuous opposition on the part of the common law courts, 
 their attorneys and other officers, and many adherents of the 
 ancient customs of the realm. In a. d. 1616 the contest cul- 
 minated in a question of the gravest character, m which the 
 authority of the chancellor to grant relief against a judgment
 
 302 AMERICAN JURISPRUDENCE. § 325 
 
 of the courts of common law was fully established by a decision 
 of the crown. From this time forward the line of demarcation 
 between the two systems of courts became more and more clearly 
 defined, the modes of proceeding in courts of equity were coor- 
 dinated and improved, and their judicial business and juridical 
 influence constantly increased. For the past century, at least, 
 both in England and America they have overshadowed, and 
 in some of our States have almost superseded, the courts of 
 common law, partly through statutory reforms in pleadings 
 and procedure and partly through their gradual assumption 
 of control over controversies which once were unhesitatingly 
 referred to the courts of common law. 
 
 § 325. Of the Line of Demarcation between the Jurisdictions 
 of Courts of Equity and Courts of Common Law. 
 Where the original normal distinction between courts of 
 equity and courts of common law is still preserved, the test of 
 equity jurisdiction is the existence of an adequate remedy at 
 law. If the courts of common law can under their methods 
 of procedure take as complete a cognizance of the controversy 
 and its parties as a court of equity could do, and can afford a 
 remedy as sufficient and as practically adapted to the ends of 
 justice as a court of equity could give, the jurisdiction of the 
 case is in the courts of common law, and equity tribunals can- 
 not interfere, (a) But where these conditions cannot be ful- 
 filled the courts of equity are open to the parties seeking for 
 relief. The application of this test brings within their juris- 
 diction the following classes of cases: (1) Cases requiring ai ( 
 preventive remedy on account of the irreparable nature off 
 the threatened injury or the multiplicity of suits to which its 
 probable repetition would lead ; (2) Cases requiring a dis- 
 closure by the adverse party of matters known only to him- 
 self or unprovable by witnesses, and whose presentation to the 
 court is necessary to a correct decision of the controversy ;! 
 (3) Cases involving the interests of more than two distinct 
 parties to such an extent or in such a manner that the contro-l 
 versy cannot be finally adjusted as to any two of them without \
 
 § 326 COURTS OF EQUITY. 303 
 
 an adjudication as to others ; (4) Cases where complete relief 
 can be obtained only by the performance by one or more of 
 the parties of some act other than the restoration of dis- 
 possessed property or the payment of money; (5) Cases in- 
 volving rights of: property which were unknown to the law 
 when the remedies provided by the common law courts were 
 devised, and for whose protection and enforcement those rem- 
 edies are not available ; (6) Cases where parties are absolved 
 from duties ordinarily enforceable at law by conduct of the 
 other parties which is not available as a defence at law, but 
 which renders it inequitable that in this particular case the 
 performance of the duty or compensation for its non-perform- 
 ance should be decreed. 
 
 Read (a) 16 D. 606; 43 D. 53; 24 St. 678; 19 How. 271; 119 
 U. S. 347. 
 
 § 326. Of the Topical Jurisdiction of the Courts of Equity. 
 
 The principal instances of the application of the powers of 
 courts of equity in the foregoing classes of cases are these : 
 (1) The prevention by an injunction, or judicial prohibition 
 under threatened penalties, of fraudulent practices, of actions 
 or omissions likely to result in injuries for which no money 
 damages will compensate, of wrongs against physical health 
 and comfort, or of the invasion of family rights (a) ; (2) The 
 enforcement of the specific performance of contracts whose 
 breach would work irreparable injury (6) ; (3) The correction 
 of the language of written contracts and conveyances in cases 
 of verbal error through accident or mutual mistake, in order 
 that their contents may conform to the actual intentions of 
 the parties (c) ; (4) The abrogation of agreements obtained by 
 fraud (d) ; (5) The settlement of accounts between three or 
 more partners or between two or more claimants of a debt due 
 from a third party (e) ; (6) The foreclosure and redemption of 
 mortgages ; (7) The partition of property between co-tenants ; 
 
 (8) The protection of the separate property of married women; 
 
 (9) The appointment and supervision of receivers; (10) The 
 regulation of trusts and trustees (/) ; (11) The perpetuation
 
 304 AMERICAN JURISPRUDENCE. § 327 
 
 of evidence ; (12) The enforcement of a discovery or disclosure 
 of facts or writings by the parties (g) ; (13) The setting aside 
 or carrying into effect of awards of arbitrators ; (14) Reliev- 
 ing against inequitable though legal forfeitures and pen- 
 alties^); (15) Aiding a court of common law to execute its 
 judgments by compelling the defeated parties to submit their 
 property to its process (i) ; (16) Preventing the victorious party 
 in a suit at law from enforcing his judgment when it would be 
 contrary to justice and conscience so to do(j); (17) Granting 
 a new trial to the defeated party where it is apparent that on 
 the former trial he was prevented from obtaining the hearing 
 to which he was entitled (k) ; (18) Removing a cloud from a 
 title to land (I) ; (19) Preventing a multiplicity of possible 
 suits by finally determining the state of facts out of which 
 the controversies might arise, (m) These instances indicate the 
 vast range of the judicial power of courts of equity, and the 
 facility with which their methods of relief can be adapted to 
 every kind of legal wrong. 
 
 Read Walker, Lect. xxxviii, pp. 700-720. 
 
 (a) 69 D. 728 ; 53 R. 342, note. 
 
 (b) 23 D. 417, note. 
 
 (c) 55 D. 137, note ; 65 St. 475, note. 
 ((/) 45 D. 621, note. 
 
 (e) 35 D. 690, note. 
 
 (/) 95 D. 572, note ; 63 St. 211, uote; 64 St. 745, note 
 
 (g) 22 D. 279, note. 
 
 (/;) 50 D. 593, note; 68 D. 73, note. 
 
 (1) 90 D. 287, note ; 66 St. 267, note. 
 
 O) 19 D. 595, note ; 53 St. 437, note; 54 St. 216, note- 
 
 (£) 20 D. 158, note. 
 
 (0 67 D. 106, note. 
 
 (in) 32 D. 689, note ; 50 D. 445, note. 
 
 § 327. Of the Indirect Jurisdiction of Courts of Equity. 
 
 The topical jurisdiction of the courts of equity receives an 
 indirect but wide extension from the doctrine that where a 
 court of equity once acquires jurisdiction of a case for any 
 purpose it may retain jurisdiction of the case for all purposes,
 
 § 328 COURTS OF EQUITY. 305 
 
 and therefore has authority to decide all its issues whether, 
 standing alone, they would or would not be within its topical 
 jurisdiction. Thus if a controversy has a single aspect on 
 account of which either of its parties may and does invoke 
 the interference of a court of equity, although in every other 
 aspect it would be cognizable by a court of common law, the 
 court of equity to which it is presented is not confined in its 
 adjudication to the single aspect ou which its direct jurisdic- 
 tion rests, but may consider and determine all its aspects, and 
 exercise with reference to them the same judicial functions as 
 a court of common law. (a) This doctrine leaves within the 
 exclusive cognizance of the common law courts only such of 
 those cases which were within their original jurisdiction as 
 may happen to be free from any incidental features on which a 
 claim for equitable interference might be based, and enables 
 suitors to invoke the aid of courts of equity in controversies 
 which substantially belong within the jurisdiction of the courts 
 of law. 
 
 Read (a) 51 D. 584 ; 2G St. 523. 
 
 § 328. Of the Limitations of the Jurisdiction of the Courts of 
 Equity. 
 Wide, however, as equity jurisdiction is, it nevertheless has 
 its limitations. It can take cognizance only of private civil 
 rights, and of these only as they have been already denned 
 and settled by the law. It accepts the same classifications 
 and distinctions of persons and property, actions and for- 
 bearances, duties and injuries, which are recognized by the 
 courts of common law. (a) It cannot create new rights, nor 
 declare future rights otherwise than by construing contracts 
 and conveyances, nor entertain a question concerning abstract 
 rights where no controversy concerning actual legal rights 
 exists, (b) It cannot introduce new remedies in violation or 
 without the authority of law. It has no jurisdiction over 
 public rights or crimes, nor can it interfere in private contests 
 simply because a party has been defeated in his effort to obtain 
 redress at law. (<•) In adjudicating upon controversies it is 
 
 20
 
 306 AMERICAN JURISPRUDENCE. § 329 
 
 obliged to follow the fundamental maxims in which the prin- 
 ciples of equity have been authoritatively expressed by former 
 chancellors, and at the same time to administer the remedies 
 at its command in accordance with the principles and precepts 
 of the law. (d) 
 
 Read (</) 15 How. 281. 
 
 (b) 1 Wall. 1. 
 
 (c) 5 St. 494 ; 124 U. S. 200 ; 19 R. 310. 
 
 (d) 31 D. 238 (241, 242); 19 Wall. 107 (121, 122). 
 
 § 329. Of the Proceedings in Courts of Equity. 
 
 The proceedings in a court of equity are simplicity itself as 
 compared with those in courts of common law. They are 
 commenced by a petition in which the claimant states in or- 
 dinary language the facts on which his claim is based, and 
 prays for the relief to which he deems himself entitled, (a) 
 Upon the presentation of this petition to the court notice is 
 given to all other parties in interest to appear and show cause, 
 if they can, why the prayer of the petition should not be 
 granted, (b) On their appearance they make such objections, 
 or denials or new affirmations as their claims require, (c) 
 The questions of law and fact arising upon these assertions 
 and denials are investigated by the chancellor through the 
 oral or written testimony of witnesses and the arguments of 
 counsel, or, if he deems it necessary, with the assistance of a 
 jury, and the various parties are ordered to do or to forbear 
 whatever in his judgment the equity and justice of the case 
 requires. (d) Compliance with these orders adjusts the con- 
 troversy and the case is at an end. Refusal to obey them is 
 followed by the attachment of the disobedient party for con- 
 tempt of court, and the imposition of such penalties of fine 
 and imprisonment as are calculated to induce him to submit. 
 
 Read 3 Bl. Com. pp. 442-455 ; Walker, Lect. xxxviii, pp. 675- 
 700. 
 
 (a) 14 Pet. 156 (164) ; 104 U. S. 65S ; 113 U. S. 756. 
 
 (b) 17 How. 130 (139, 140). 
 
 (c) 17 How. 91 ; 83 D. 249, note. 
 id) 1 D. 121 ; 97 D. 51.
 
 §§ 330, 331 courts of equity. 307 
 
 § 330. Of the Special Jurisdiction of Courts of Equity over 
 Infants, Insane Persons, and Incapables. 
 In addition to the controversies between adverse parties 
 which in the manner just described fall within the jurisdiction 
 of the courts of equity, they are charged with many other 
 judicial and administrative duties which also grow out of the 
 ancient relations between the chancellor and the king. The 
 king, according to the doctrine of the common law, is j""' 1 "* 
 patrice, the father of his country, the guardian of all persons 
 who are incapable of caring for themselves, the custodian of 
 all property which has no other owner able to manage and 
 protect it. The numerous and important functions attached 
 to this high office the^inonarch found it also convenient to 
 transfer to his chancellor, and thus vest in chancery, and finally 
 in the courts of equity, jurisdiction over orphaned infants and 
 insane persons, over property appropriated to charitable uses, 
 and over other interests of a similar character which might 
 properly be regarded as a royal charge. More or less of these 
 duties have, as time went on, been distributed to special courts, 
 particularly in this country ; but equity still exercises over 
 them a supervisory or appellate jurisdiction, and furnishes 
 the principles and methods upon which they are everywhere 
 administered, (a) 
 
 Read (a) 18 D. 681, note. 
 
 § 331. Of the Merger of the Courts of Equity and the Courts 
 of Common Law. 
 In their origin and for many generations the tfburts of com- 
 mon law and courts of equity were entirely distinct tribunals 
 as to the persons of their judges and other officers, as well as 
 in their jurisdiction and methods of procedure and relief. 
 But during the past century an increasing tendency to the 
 consolidation of these tribunals has manifested itself, and in 
 many of our American States both common law and equitv 
 jurisdiction are exercised by the same courts, some preserving 
 the distinction between forms of procedure as well as between 
 modes of relief, while others, though retaining the diverse
 
 308 AMERICAN JURISPRUDENCE. § 332 
 
 methods of relief appropriate to different states of fact, have 
 assimilated their entire procedure to that which always has 
 prevailed in courts of equity. By many of our modern jurists 
 a complete fusion of the two systems is regarded as not only 
 practicable, but desirable and probable ; but the Supreme 
 Court of the United States has held that in the Federal 
 Courts, although the persons constituting the tribunal may be 
 the same, yet the distinctions between common law and equity 
 jurisdiction, as to the facts on which they are based and the 
 nature of the remedies they can apply, are under the Federal 
 Constitution permanent and ineradicable. The Judicature 
 Acts of Parliament in a. d. 1873 exhibit the same tendency as 
 operating upon the judicial systems of Great Britain, not, 
 however, as yet to the union of the tribunals by which law 
 and equity powers are exercised. 
 
 SECTION IV. 
 
 OF THE COURTS OF PROBATE. 
 
 § 332. Of the Nature and Origin of Probate Jurisdiction. 
 
 The principal purpose for which courts of probate are 
 established is the settlement of the estates of deceased per- 
 sons. Every species of property which can survive the death 
 of its owner must necessarily vest in new owners, and these 
 new owners must be designated either by the act of the 
 former owner or by the operation of law. The act by which 
 an owner of property designates the persons who are to 
 become its owners after his death is the making and execu- 
 tion of a will or testament, and the legal right to make a will 
 having this effect has been recognized by most civilized 
 States in all ages of the world. To ascertain whether or 
 not a valid will has been made, and if so to superintend the 
 carrying out of its provisions, and if not to dispose of and 
 distribute the property of the deceased according to law, is 
 the proper function of a court, since it involves the duty of 
 interpreting and applying law, of adjudicating upon conflict-
 
 § 383 COURTS OF PROBATE. 309 
 
 ing claims, and of enforcing the fulfilment of judicial decrees. 
 In the Saxon period this function was discharged by the 
 county courts in which the bishop of the diocese and the 
 chief secular magistrate of the county sat together as judges. 
 With the separation of ecclesiastical and civil tribunals 
 which took place under the early Norman kings jurisdiction 
 over these probate matters was lodged in the ecclesiastical 
 courts, partly because their methods of procedure were better 
 suited to such cases than those of the common law courts, 
 and partly because the ordinary, or bishop of the diocese, 
 was entitled under the law to all the personal property of 
 which its deceased owner might have made disposition by 
 his will and failed to do so. Later the duty of paying the 
 debts of the deceased out of this property was imposed upon 
 the ordinary, and later still the duty of appointing the next 
 of kin to the deceased as an administrator to collect the 
 assets, ascertain and pay the debts, and distribute the re- 
 mainder to the persons legally entitled to receive it, was 
 prescribed. This jurisdiction continued in the ecclesiastical 
 courts in England until a. d. 1857, when a new secular court 
 of probate was created by statute before which all such mat- 
 ters must be brought. 
 
 Read 3 Bl. Com., pp. 61-67, 95-08; Reeve, Ch. ii, pp. 283-288. 
 312-314; Markby, §§ 803-820. 
 
 § 333. Of the Courts of Probate in the United States. 
 
 In this country ecclesiastical courts having authority in 
 civil matters- have always been unknown, and as the same 
 affairs required the same judicial supervision here as in Eng- 
 land, it became necessary to provide by direct legislation 
 such tribunals and to clothe them with the proper jurisdic- 
 tion. This was accomplished in some States by conferring 
 probate powers upon existing common law or equity courts, 
 in otliers by creating new courts of limited and special juris- 
 diction to which the control of these and kindred matters was 
 confided. Such courts are variously called " probate courts," 
 "surrogates' courts," "orphans' courts." or some equivalent
 
 310 AMERICAN JURISPRUDENCE. §§ 334, 335 
 
 name indicating the character of the duties they are commis- 
 sioned to discharge. The scope of the probate powers lodged 
 in these courts is measured by the constitutional or statu- 
 tory provisions in which they originate, and they have no 
 authority except what has thus been expressly or impliedly 
 bestowed. («) 
 
 Read (a) 33 D. 227 ; 58 D. 488, note ; 90 D. 122, note. 
 
 § 334. Of the Ordinary and Special Jurisdiction of the Courts 
 of Probate. 
 
 The territorial area over which the jurisdiction of these 
 courts extends is generally small. The nature of their trans- 
 actions is such that every citizen sooner or later becomes 
 pecuniarily interested in them, and they are consequently 
 brought within the reach of all by multiplying their number 
 and giving to each one of them a narrow field of operation. 
 A probate district, as this area is called, is frequently a 
 single township, at most perhaps a county. The methods of 
 procedure in these courts is simple, following very nearly 
 those in use in courts of equity, and are as expeditious and 
 inexpensive as the proper conduct of their business will per- 
 mit. Moreover, in addition to their probate powers they 
 often have control of lunatics and infants and their guar- 
 dians, of trust estates, estates in bankruptcy, and other mat- 
 ters formerly included in the administrative jurisdiction of 
 the courts of equity, and which in modern conditions of 
 society require the speedy, economical, and convenient settle- 
 ment which the probate courts are able to afford. 
 
 § 335. Of the Primary and Ancillary Jurisdiction of the Courts 
 of Probate. 
 In probate matters the primary jurisdiction of a probate 
 court is confined to the estates of such deceased persons as at 
 the time of their death had their domicile within its territo- 
 rial jurisdiction. A secondary or ancillary jurisdiction they 
 may exercise over property situated within their territorial
 
 § 336 COURTS OF PROBATE. 311 
 
 jurisdiction but belonging to the estates of deceased persons 
 who were domiciled in other States and whose estates are 
 being settled in the probate court of their domicile. This 
 ancillary jurisdiction is always in aid of and subordinate to 
 the primary jurisdiction of the court of domicile, and in the 
 absence of such primary jurisdiction the acts of the ancillary 
 court will be invalid. The principal duties of the ancillary 
 court are to ascertain the authority of the foreign executor or 
 administrator to receive the property and to superintend its 
 collection and delivery to him. A probate court may have 
 the same ancillary jurisdiction in reference to extra-territorial 
 guardians and trustees, (a) 
 
 Read Story, Conf. L. §§ 503-529. 
 (a) 35 D. 472, note. 
 
 § 336. Of the Jurisdiction of the Courts of Probate over Tes- 
 tate Estates. 
 
 In the exercise of their primary probate jurisdiction these 
 courts are concerned chiefly with the probate of wills and the 
 settlement of testate estates. The validity of a will depends 
 upon the mode of its execution, the mental capacity of the 
 testator, and the conformity of its provisions to the law. 
 The purpose of the probate of a will is to subject the ques- 
 tion of its validity to a judicial inquiry, and if found valid 
 to establish it by a conclusive judgment against all objections 
 to its legal sufficiency. A will must be offered for primary 
 probate to the court in whose jurisdiction the testator had 
 his domicile at the time of his death, and being established 
 there it may afterwards be presented for ancillary probate in 
 any other State in which the property of the deceased may 
 be discovered, (a) Upon the probate of a will the executor 
 named therein, or a substitute appointed for him by the 
 court, proceeds to settle the estate according to its terms. 
 receiving such guidance from the court and rendering to it 
 such accounts and returns as his duties under tin' will or 
 under the provisions of the general Law may require. 
 Read («) 54 I). 515, note.
 
 312 AMERICAN JURISPRUDENCE. §§ 337, 338 
 
 § 337. Of the Jurisdiction of the Courts of Probate over 
 Intestate Estates. 
 An intestate estate is one of which the deceased owner has 
 made no testamentary disposition. The law provides for the 
 distribution of such estates among the creditors and relatives 
 of the deceased, and for the purpose of securing this distribu- 
 tion vests in the probate court of his domicile authority to 
 appoint an agent or administrator to collect, preserve, and, 
 if necessary, to sell the property, and to apply it to its desig- 
 nated uses. This administrator is the servant of the probate 
 court and acts under its direction, reporting to it his various 
 proceedings and filing among its records an account of his dis- 
 bursements and receipts, (a) The acceptance and approval of 
 these accounts and reports by the court is in the nature of a 
 judgment as to their correctness and cannot be collaterally 
 attacked, (b) 
 
 Read 2 Kent, Lect. xxxvii, pp. 408-436; Walker, Lect. xviii. 
 (a) 18 D. 110,' note ; 30 R. 746, note ; 47 R. 458, note; 
 
 52 St. 116, note. 
 (6) 14 D. 642 ; 48 D. 742, note ; 60 D. 335, note; 24 St. 
 
 399. 
 
 § 338. Of the Jurisdiction of the Courts of Probate over 
 Guardians and Trustees. 
 
 As a general rule, when a probate court has jurisdiction 
 over guardianships and trusts its jurisdiction in particular 
 cases is determined by the domicile of the ward or the loca- 
 tion of the property. In the appointment of trustees and 
 guardians it is its duty to select persons of ability and integ- 
 rity, to hold them to a strict performance of their duties, and 
 to preserve their returns and accounts among its records. It 
 may remove them for misconduct, or permit them to resign 
 and appoint others in their stead. In some States it may en- 
 force their compliance with its orders by an attachment for 
 contempt ; in others only by their removal and by suit upon 
 their bonds, (a) 
 
 Read (a) 73 D. 555, note.
 
 §§ 339, 340 courts of admiralty. 315 
 
 § 339. Of the Importance of Courts of Probate. 
 
 The probate courts, although of limited and special jurisdic- 
 tion, are among the most important of our judicial tribunals. 
 Eventually all property passes through their hands, and every 
 person having or acquiring property becomes subject to their 
 decrees. At any given moment a large proportion of the 
 interests of the entire community are under their control, and 
 to their successful management is due in a great measure 
 the security of estates and the stability of families. Their 
 records, in connection with the land records of the country, 
 furnish a detailed history of the accumulation and transmis- 
 sion of real and personal property, of great value to the law- 
 yer, of deep interest to the economist, and full of unexplored 
 secrets for the genealogist and statistician. 
 
 SECTION V. 
 
 OF THE COURTS OF ADMIRALTY. 
 
 § 340. Of the Nature of Admiralty Jurisdiction. 
 
 The courts of admiralty have jurisdiction over controversies 
 arising out of maritime affairs. So far as the essential nature 
 of these affairs is concerned they might, equally with any 
 others, be within the cognizance of local courts of law or 
 equity. A ship and its cargo are personal property, and as such 
 might be governed by the same law which controls other 
 personal property. An agreement between the master of a 
 vessel and his crew, or between its owner and the shippers or 
 consignees of its freight, or a wrong by one of these against 
 the others, does not differ as a mere tort or contract from simi- 
 lar transactions relating to commerce upon land. But mari- 
 time affairs, being conducted upon the sea, often involve the 
 interests of citizens of divers countries whose local laws are 
 quite unlike to one another, and these must have some com- 
 mon standard by which their reciprocal rights and duties can 
 be measured, and some common tribunal to which they can
 
 314 AMERICAN JURISPRUDENCE. § 341 
 
 all resort and with whose methods of procedure all can be 
 familiar. Moreover, the redress for injuries which these tri- 
 bunals can afford must take some other form than decrees and 
 orders against persons who, being inhabitants of foreign States, 
 are beyond the reach of any process by which such orders 
 and decrees can be enforced. Most maritime affairs relate to 
 vessels and their cargoes, — the navigation of the one, the 
 transportation of the other, — and it is only when, by treating 
 the vessel or the cargo as a party to the tort or contract, the 
 courts in any port into which she enters, and where she may 
 conduct her maritime affairs, can acquire jurisdiction by seizing 
 her, and can enforce their judgments by her sale and the ap- 
 propriation of her proceeds to the satisfaction of the injured 
 parties, that any adequate and certain remedy for their wrongs 
 can be obtained. But such proceedings are unknown in courts 
 of common law, and can be resorted to in equity only in the 
 rarest cases and when some sort of jurisdiction over the 
 parties interested in the property can be obtained. For these 
 two reasons, — the necessity in all commercial countries for 
 courts of universal jurisdiction and of uniform procedure, and 
 for a remedy against the res or thing out of whose use the 
 controversy grows, — the admiralty courts have been estab- 
 lished with powers by which they are enabled to administer 
 justice between the parties to a maritime controversy in what- 
 ever portion of the globe they may reside, (a) 
 Read (a) 12 D. 50S, note ; G2 D. 214, note. 
 
 § 341. Of the Origin and Development of Admiralty Jurisdic- 
 tion. 
 The law of shipping and admiralty had its origin in the 
 customs of the early navigators of the ancient world. These 
 usages, resulting from sound reason and sagacious instinct ap- 
 plied to maritime affairs, were recognized and accepted by one 
 nation after another until they have become the law wherever 
 commerce on the sea prevails. These usages were first col- 
 lected, digested, and promulgated as laws by the mariners of
 
 § 341 COURTS OF ADMIRALTY. 315 
 
 Rhodes, who were the masters of the seas nine hundred years 
 before the birth of Christ. Athens and Rome received the 
 Rhodian laws as part of the law of nations, and by them for many 
 centuries all the maritime transactions of the Mediterranean 
 and Atlantic coasts were governed. After the destruction of 
 the Roman Empire new codes of sea-laws were compiled; one 
 by the republic of Amalfi in Italy about the close of the elev- 
 enth century and called the Amalphitan Table ; another at 
 Barcelona known as the Consolato del Mare; another at the 
 Island of Oleron in France, thence styled the Laws of Oleron ; 
 another at Wisbuy, a commercial city on the Baltic, about a. d. 
 12S8; and still another by the Hanseatic League in a. d. 1614. 
 All these codes were built upon the foundation of the Rhodian 
 laws, with alterations and additions necessary to adapt them 
 to the needs of mediaeval commerce. In a. n. 1681 they were 
 in a great measure superseded by the French '•' Marine Ordi- 
 nance," which was framed and published under the auspices 
 of Louis XIV. In it the whole law of shipping was syste- 
 matically arranged, and it has always been regarded as a 
 perfect code of maritime jurisprudence. In England and 
 the United States no such formal statement of the law has 
 ever been attempted. Their admiralty courts have followed 
 the principles and rules contained in the continental codes so 
 far as these appeared consistent with the commercial interests 
 of their respective nations, and the decisions of those courts 
 in connection with the Acts of Congress relating to maritime 
 affairs now form the body of our admiralty law. The mari- 
 time law thus has a written Jiistory of nearly three thousand 
 years, and from that early date still reaches backward into an 
 unknown past. In spite of its mutations and development its 
 great principles and usages have undergone no substantial 
 change. It does not lie within the power of any nation to 
 vary its essential provisions. It rests on the common consent 
 of all commercial States, and is presumed to be binding on 
 every vessel until the contrary is proved. In its administra- 
 tion it is treated by the admiralty courts of all civilized coun- 
 tries with the respect due to the law of nations, to which 
 it properly belongs, since, though it affects mainly private in-
 
 316 AMERICAN JURISPRUDENCE. § 342 
 
 terests, these interests are within the immediate protection of 
 the State under whose flag the commerce is conducted, (a) 
 Read 3 Bl. Com., pp. GO, 70 ; 3 Kent, Lect. xlii, pp. 2-21. 
 
 (a) 14 Wall. 170 (187, 188); 105 U. S. 21; 130 U. S. 
 527 ; HI U. S. 1. 
 
 § 342. Of Maritime Torts and Contracts. 
 
 Maritime affairs, over controversies arising out of which 
 admiralty courts have jurisdiction, are affairs directly con- 
 nected with commerce upon waters forming a highwa}' between 
 different States. The civil injury in which the controversy 
 originates must be a marine tort or the breach of a marine 
 contract. A marine tort is a wrongful action or omission 
 occurring on the waters over which the commerce is carried 
 on. (<i) A marine contract is a contract concerning the com- 
 merce itself, (b) Contracts relating to something hereafter 
 to be employed in commerce, like a contract to build a ship, 
 or relating to the results of past commerce, like the agreement of 
 the owners of a vessel to account to one another for the profits 
 of a voyage, are not marine contracts, and a breach of these is 
 actionable only in courts of equity or common law. (c) But a 
 contract to repair a ship already engaged in commerce in order 
 to enable her to proceed to her destination, or a contract be- 
 tween the master and the crew who are to navigate the ship, are 
 maritime in character, and are within the cognizance of admi- 
 ralty courts. Admiralty jurisdiction is sometimes spoken of 
 as extending over certain waters, and again is said to embrace 
 the controversies, not the waters. Its jurisdiction .over torts, 
 and, where it has jurisdiction over crimes, of these also, is 
 determined by locality, and in reference to these is therefore 
 measured by the waters ; over contracts it is determined by 
 the maritime subject-matter of the contract wherever the con- 
 tract itself may have been executed. The waters which in 
 this sense are within the jurisdiction of the admiralty courts 
 include every body of water which in its natural state is large 
 enough to afford passage for vessels suitable for use in com- 
 merce, and is so connected with other waters as to provide an
 
 § 343 COURTS OF ADMIRALTY. 317 
 
 uninterrupted highway from one State to another, together 
 with such artificial waters as may form the connecting links 
 between them. In England only tidal waters answer this de- 
 scription, and in this country also admiralty jurisdiction was 
 at first confined to waters affected by the tides, but now ex- 
 tends to inland lakes and rivers not connected with the sea. 
 Any commerce in such waters, though it be confined to ports 
 of the same State, gives to the contracts which it involves a 
 marine character, and brings them within the cognizance of 
 admiralty courts, (d) 
 
 Read 3 Bl. Com. pp. 106-108. 
 
 (a) 23 How. 209 (215, 210); 13 D. 504, note ; 95 D. 722; 
 
 105 U. S. 026 ; 1 Black, 574 ; 114 U. S. 355. 
 
 (b) 7 Wall. 024; 20 How. 102; 13 R. 270, note. 
 
 (c) 21 Wall. 532 ; 20 How. 393 ; 11 Pet. 175; 22 How. 
 
 330. 
 (rf) 20 Wall. 430: 11 Wall. 411 ; 12 Pet. 72; 20 How. 296; 
 8 Wall. 15; 4 Wall. 555. 
 
 § 343. Of the Concurrent Jurisdiction of the Courts of Admi- 
 ralty and the Courts of Equity and Common Law. 
 The jurisdiction of the admiralty courts over maritime 
 affairs is not, however, necessarily exclusive of that of the 
 courts of equity and common law. A marine tort or contract 
 is in its tort or contract character like any other tort or 
 contract, and when process issuing from an ordinary court 
 can Bring all the parties within its jurisdiction, and a judg- 
 ment for damages or an enforced decree in equity would 
 meet the requirements of the situation, the suitors are not 
 compelled to institute proceedings in the admiralty courts 
 merely because the contract was connected with commercial 
 operations ot the tort was committed upon waters within the 
 admiralty jurisdiction, (a) But when no adequate relief can 
 be obtained without a suit against the ship itself, this pro- 
 ceeding must be brought before the admiralty courts, no 
 other courts being capable of entertaining such an action. (A) 
 
 Read (a) 26 1). 507; 32 D. 54, note : 16 Wall. 522 ; 74 1). 463. 
 (6) 11 Wall. 185; 10 St. 292.
 
 318 AMERICAN JURISPRUDENCE. § 344 
 
 § 344. Of the Topical Jurisdiction of Courts of Admiralty. 
 
 The principal classes of actions brought before the admi- 
 ralty courts are the following: (1) Prize cases, for the deter- 
 mination of the title to vessels captured in war (a); (2) Cases 
 arising out of the seizure of vessels or cargoes for the viola- 
 tion of revenue laws (b) ; (3) Cases of collision between vessels 
 on navigable waters (c) ; (4) Cases concerning the possession 
 or ownership of vessels already engaged in commerce (e?) j 
 (5) Cases involving a maritime lien, that is, a lien upon the 
 movable property employed in commerce and to the existence 
 and continuance of which, unlike a common law lien, the 
 possession of the property subject to the lien is unneces- 
 sary (<?) ; (6) Cases arising out of charter-parties, or contracts 
 for the hiring of vessels (/) ; (7) Cases based on contracts for 
 the navigation, provisioning, repair, custody, loading or un- 
 loading of vessels; (8) Cases of marine insurance^); (9) Cases 
 of salvage, or claims for compensation for the voluntary 
 rescue of ships and cargoes from marine perils (//); (10) Cases 
 concerning claims for pilotage, wharfage, towage, freight, 
 passenger fares, and demurrage or pay for the unreasonable 
 detention of a vessel at the port of discharge through the 
 failure of the consignee to take away her cargo (/); (11) Cases 
 growing out of injuries of any kind, by violence, negligence, 
 or otherwise, to persons or property while actually upon the 
 water, — as an assault on board a vessel, or injury to the 
 vessel from collision with a pier, but not when the wharf is 
 d imaged by the vessel or the assault takes place on shore, or 
 any other harm is done on the land by causes which com- 
 mence but do not produce injurious effects upon the sea. (,;') 
 Read (a) 2 D. 634. 
 
 (b) 9 Wheat. 421. 
 
 (c) 114 U. S. 355. 
 
 (d) 18 How. 2G7. 
 
 (e) 7 Wall, 624 ; 10 Wall. 204 : 6 Wall. 213. 
 (/) 23 How 491. 
 
 (g) 11 Wall. 1. 
 
 (A) 59 D. 431. 
 
 (/) 13 Wall. 236. 
 
 0) 3 Wall. 20 ; 5 How. 441 ; G How. 344.
 
 §§ 345, 346 courts of admiralty. 319 
 
 § 345. Of Admiralty Jurisdiction in Rem. 
 
 The chief peculiarity and advantage of courts of admiralty 
 is the proceeding in rem by which the vessel itself is made a 
 parjgJi the suit ^and subjected to the claims of creditors and 
 other injured parties, (a) This proceeding may be instituted 
 in any admiralty court where the vessel may be found, (b) 
 It requires that the vessel be within reach of process and be 
 actually taken into the custody of the law. (c) With it may 
 be joined a proceeding in personam against the owners or 
 other parties whenever they also can be brought within the 
 jurisdiction of the court. All parties in interest are entitled 
 to such notice of the seizure of the property as the court is 
 able to give, and if any of them appear the property may be 
 released upon the substitution of sufficient security. If judg- 
 ment is rendered against the vessel it is conclusive every- 
 where and against all persons who have any interest in her 
 or claim upon her, and when she is sold her proceeds are 
 deposited in the register, or record office of the court, for dis- 
 tribution among those to whom the court may find that they 
 belong. (cZ) The title of the purchaser at such a sale is abso- 
 lute, and not embarrassed by any liens or obligations exist- 
 ing prior to the sale, (e) 
 
 Read (a) 75 I). 714, note. 
 
 (b) 4 Cranch, 2 ; I Cranch. 241 ; 1 Black, 574(580, 581). 
 
 (c) 23 Wall. 458 ; 99 D. 556. 
 
 (d) 3 How. 508. 
 
 (e) 2 D. 61 ; 16 D. 199; 48 D. 590. 
 
 § 346. Of Proceedings in Admiralty. 
 
 The pleadings and procedure in admiralty courts are very 
 similar to those in equity. They are commenced by filing 
 with the clerk a petition or libel in which the libellant sets 
 forth his cause of action in distinct propositions or articles 
 and in ordinary language, and prays f<>r process against the 
 vessel or the libellees or both and for such relief as his cause 
 demands. The adverse parties, if any appear, present their 
 answer in a similar way; the libellant amends his libel to
 
 320 AMERICAN JURISPRUDENCE. § 347 
 
 meet the answer if he so desires; and on the issues thus 
 created the cause is tried and decided by the court. Any 
 persons interested in the property as lienors, lessees, or other- 
 wise may apply to the court for the protection of their inter- 
 ests, and will be permitted to become parties to the suit so 
 far as may be necessary to secure their rights, (a) The deci- 
 sions of admiralty courts are guided by broad principles of 
 equity and justice rather than any technical rules, and the 
 flexibility of their procedure enables them to apply their 
 remedies to any aspect which cases may present. From 
 such decisions in inferior courts of admiralty an appeal lies 
 to higher courts in which the merits of the case can be 
 reviewed, (b) 
 
 Read Walker, Lect. xxxix. 
 (a) 1 Pet. 547. 
 lb) 5 Cranch, 281 ; 19 Wall. 73. 
 
 § 347. Of the Courts Exercising Admiralty Jurisdiction in Eng- 
 land and the United States. 
 In England before the Revolution admiralty jurisdiction 
 was vested in a special court established in the reign of 
 Edward III., and presided over by the Lord High Admiral. 
 In the American colonies at the same time vice-admiralty 
 courts existed with similar jurisdiction, but from which par- 
 ties could appeal to the High Admiral's court in the mother 
 country. P>y the Constitution of the United States all cases 
 of admiralty and maritime jurisdiction were made judicially 
 cognizable by the Federal courts, and this jurisdiction has 
 been uniformly held to be exclusive as to all cases of prize 
 and all marine torts and contracts when the proceeding is in 
 rem. Congress in establishing the Federal courts and dis- 
 tributing among them the judicial powers of the United 
 States, has confided these cases to the District Courts, with 
 appellate jurisdiction in the Circuit Courts, and in these 
 tribunals all purely admiralty jurisdiction in this country now 
 resides, (a) 
 
 Read («) 13 Wall. 389; 21 Wall. 558.
 
 §§ 348, 349 courts martial. 321 
 
 SECTION VI. 
 
 OF COURTS MARTIAL, MILITARY COURTS, AND PROVISIONAL 
 
 COURTS. 
 
 § 348. Of Courts of Extraordinary Jurisdiction. 
 
 The foregoing courts afford effective and abundant remedies 
 for the redress of public and private wrongs in civil life and 
 in the times of peace. But for the punishment of offences 
 against the rigid rules by which the military and naval forces 
 of the State are governed, and for the administration of 
 justice in those periods of political disturbance when in the 
 presence of arms all laws are silent, other tribunals become 
 necessary which, being clothed with extraordinary powers 
 and guided by the judicial discretion of the moment rather 
 than by settled principles of law, will be able to meet the 
 emergency, however great it may be, and hold the scales of 
 justice even until peace can be restored. These courts as 
 recognized and exercising jurisdiction in this country are 
 known as Courts Martial, Military Courts, and Provisional 
 Courts. 
 
 § 349. Of Courts Martial. 
 
 Courts Martial are tribunals established for the trial of 
 offences committed by persons connected with the army or 
 navy in violation of the provisions of military law. Military 
 Law is the law governing the military forces as a separate 
 community. Its rules are prescribed by the State and become 
 obligatory upon the individual when he enlists or is con- 
 scripted into the public service, (a) They are necessarily 
 burdensome and imperative, and any offence against them 
 requires a punishment at once summary and severe. The 
 trial of persons accused of such offences must often be 
 immediate and be conducted at the place where the offence 
 occurred, and by such competent judges as can be trusted with 
 the infliction of the penalty of death. Courts Martial com- 
 
 21
 
 322 AMERICAN JURISPRUDENCE. § 350 
 
 posed of military or naval officers selected by the commander 
 in pursuance of the Military Law, conversant from long 
 experience with the rules against which the alleged offence 
 has been committed, easily convened whenever the occasion 
 may arise, pursuing their investigations by direct and expedi- 
 tious methods, are the tribunals to which such cases are com- 
 mitted by modern nations. These courts are of limited and 
 special jurisdiction. In this country they rest wholly upon 
 Acts of Congress, and have no jurisdiction over persons not 
 enrolled or liable to be enrolled in the army or navy of the 
 United States. Their action is subject to the approval of the 
 commanding officer and sometimes of the President, whose 
 authority to ratify or set aside their judgment is judicial and 
 therefore cannot be delegated, (b) Where a Court Martial 
 assumes unwarrantable jurisdiction over any person he may 
 be released by habeas corpus, the judgment of the„ court may 
 be reversed by the civil courts, and damages recovered against 
 all parties who participated in the wrong, (c) But its deter- 
 minations within its jurisdiction are conclusive and cannot be 
 collaterally attacked on the ground that no offence existed or 
 was proved. (W) 
 
 Read 1 Bl. Com., pp. 408-421; Cooley,C. Law, Ch. vi, p. 156. 
 
 (a) 137 U. S. 147. 
 
 (b) 122 U. S. 543 ; 97 U. S. 509. 
 
 (c) 20 How. 65. 
 
 (d) 165 U. S. 553. 
 
 § 350. Of Military Courts. 
 
 Military Courts are temporary tribunals organized to try 
 offences against Martial Law and the Laws of War in periods 
 of public disturbance when the ordinary courts become unable 
 on account of the disturbance to perform judicial duties. 
 Martial Law is the body of rules established by a military 
 commander at the actual theatre of military operations or in 
 any other district where the popular sentiment in favor of 
 peace and order is so far destroyed that the courts cannot
 
 § 351 MILITARY AND PROVISIONAL COURTS. 323 
 
 exercise their usual jurisdiction, and consequently the ordi- 
 nary provisions of the law cannot be enforced. Martial Law 
 binds all persons within the disturbed district whether they 
 are citizens or soldiers, and may include any rules which in 
 the judgment of the military commander who declares it 
 may be necessary for the protection and preservation of the 
 community or for the prevention of acts of hostility against 
 the State, (a) The Laws of War are those provisions of inter- 
 national law which control the conduct of military operations 
 and the reciprocal relations of an invading army and the 
 inhabitants of the hostile territory into which it has advanced. 
 The jurisdiction of a Military Court over offences against 
 Martial Law is measured by the same necessity which justifies 
 the promulgation of the law. Any offence, not purely of a 
 military character, -of which the civil courts are then able to 
 take cognizance falls within their exclusive authority, and in 
 proportion as order is restored and judicial tribunals can 
 again discharge their functions the scope of Martial Law and 
 the authority of Military Courts must be restricted until they 
 wholly disappear. 
 
 Read Cooley, C. Law, Ch. vi, pp. 156, 157. 
 
 (a) 42 D. 51, note ; 92 D. 159, note ; 4 Wall. 2. 
 
 § 351. Of Provisional Courts. 
 
 Provisional Courts are temporary courts established by a 
 conquering State in conquered territory occupied by its mili- 
 tary forces, for the purpose of preserving order and protecting 
 persons and property until the normal operations of the civil 
 government can be resumed. These tribunals closely resemble 
 military courts, and the laws which they administer depend 
 largely for their character and obligation upon the military 
 authority within whose grasp the territory is held. The 
 municipal laws of the region may be respected and their appli- 
 cation may be entrusted to the local magistrates, or other laws 
 and other courts may be created in their place; or civil rights 
 and remedies may be entirely suspended and for them martial
 
 324 AMERICAN JURISPRUDENCE. § 352 
 
 law and military tribunals may be substituted. The com- 
 mander of an army of occupation is always for the time being 
 a de facto government, the institutions erected by him depend 
 upon his own discretion, and his acts are subject to be reversed 
 only by his military superiors or their common sovereign, (a) 
 Read (a) 22 Wall. 276. 
 
 SECTION VII. 
 
 OF THE FEDERAL AND STATE COURTS. 
 
 § 352. Of the Federal Courts. 
 
 The courts in this country are politically divisible into two 
 groups : (1) The Federal Courts ; and (2) The Courts of Indi- 
 vidual States and Territories. The Federal Courts administer 
 justice in the name and under the authority of the United 
 States. They are established by the Federal Constitution or, 
 in pursuance of the Constitution, by the Acts of Congress, and 
 are wholly independent of the laws of any of the individual 
 States. (a) The jurisdiction of these courts, according to the 
 Constitution, extends to all cases in law and equity arising 
 under the Constitution or the laws of the United States and 
 treaties made under their authority ; to all cases affecting 
 ambassadors, public ministers, and consuls ; to all cases of 
 admiralty and maritime jurisdiction ; to controversies to which 
 the United States shall be a party ; to controversies between 
 two or more States, or between a State and citizens of another 
 State, or between citizens of different States, or between citi- 
 zens of the same State claiming lands under grants of different 
 States, or between a State or the citizens thereof and foreign 
 States, citizens, or subjects. This general jurisdiction has 
 been distributed by successive Acts of Congress through a 
 system now composed of six courts : (1) The Supreme Court 
 of the United States ; (2) The Circuit Courts of Appeals ; 
 (3) The Circuit Courts ; (4) The District Courts ; (5) The 
 Court of Claims ; (6) The Courts of the District of Columbia. 
 The jurisdiction of the Supreme Court is fixed by the Consti-
 
 §§ 353, 354 FEDERAL COURTS. 325 
 
 tutioti ; that of the inferior courts is changed from time to 
 time by statute as public convenience may require. 
 
 Read 1 Keut, Lect. xiv. pp. 290-297, 306-311, Lect. xvi, pp. 
 313-352; Cooley, C Law, Ch. iii, pp. 52-51, Ch. 
 vi. pp. 123-123,' 129-133, 115-148; Walker, Lect. 
 viii, pp. 109, 115-120. 
 (a) 9 Pet. 632 ; 6 Wall. 217 ; 5 Craiich, 115 ; 11 Pet. 175; 
 18 How. 517; 20 How. 170 (175) ; 100 U. S. 257. 
 
 § 353. Of the Supreme Court of the United States. 
 
 The Supreme Court of the United States has original juris- 
 diction over all cases affecting ambassadors, public ministers, 
 and consuls, and those in which a State may be a party. In 
 other cases its jurisdiction is appellate only. It may entertain 
 appeals directly from the Circuit an I District courts in con- 
 troversies concerning the jurisdiction of the court, in prize 
 cases, in criminal cases involving the infliction of capital or 
 infamous punishment, in oases necessitating the construction 
 and application of a provision of the Constitution or a treaty 
 or an Act of Congress, or where antagonism appears between 
 a State law and the laws of the United States. From the Cir- 
 cuit Court of Appeals an appeal lies to the Supreme Court 
 where the amount in controversy exceeds one thousand dollars 
 except in patent, revenue, admiralty, an 1 criminal cases and 
 cases where the only ground of Federal jurisdiction is the 
 different citizenship of the parties. Any question, however, 
 may be presented by the Circuit Court of Appeals to the 
 Supreme Court for final decision when its difficulty and im- 
 portance warrant such an application. 
 
 Read 1 Kent, Lect. xiv. pp. 238-301, 312-330: Walker, Lect. 
 viii, pp. 120-122; Cooley, C. Law, Ch. vi, pp. 128, 
 129. 
 
 $ 354. Of the Circuit Courts of Appeals. 
 
 The Circuit C >urt of Appeals is a tribunal established by 
 the Act of 1S91 to relieve the Supreme Court from the heavy 
 bur 1 mis imposed upon it by the rapi Uy increasing numb'r o£ 
 appeals from lower courts, both State and Federal. It ha3 n >
 
 326 AMERICAN JURISPRUDENCE. §§ 355, 356 
 
 original jurisdiction. All appealed cases except those within 
 the exclusive cognizance of the Supreme Court may come 
 before it, and in reference to many of these its decision is 
 final. 
 
 § 355. Of the Circuit Courts. 
 
 The Circuit Courts have original jurisdiction over all cases 
 at common law or equity in which the amount in controversy 
 exceeds two thousand dollars "besides the interest and costs, 
 an 1 in which the interpretation of the Federal Constitution 
 or an Act of Congress or a treaty is required (a) ; or in which 
 the United States is the plaintiff, or the parties are citizens 
 of different States (b) or are citizens of the same State claim- 
 ing the same land under grants from different States; or 
 where the suit is brought by a citizen of the United States 
 against a foreign State or its citizens; or where any person 
 has a cause of action against the United States in which the 
 claim exceeds one thousand dollars and is less than ten thou- 
 sand dollars; or where a suit in equity is necessary to protect 
 a trust and the case is otherwise within Federal jurisdiction; 
 or where the case arises under the patent, copyright, or 
 revenue laws or other special statutes ; or where crimes have 
 be3n committed against the laws of the United States; pro- 
 vided always that the controversy is not within the exclusive 
 jurisdiction of any other Federal court. The appellate juris- 
 diction of these courts was formerly extensive, but has now 
 been transferred to the Circuit Court of Appeals. 
 
 Read 1 Kent, Lect. xiv, pp. 301-303; Walker, Lect. viii, pp. 
 123, 124. 
 
 (a) 128 U. S. 586; 153 U. S. 411 (424). 
 
 (b) 119 U. S. 469. 
 
 § 356. Of the District Courts. 
 
 The District Courts have original jurisdiction over all 
 admiralty and maritime controversies; over all suits at com- 
 mon law by the United States or its officers; over actions by 
 aliens for violations of international law; over equitable 
 proceedings to enforce liens of the United States for revenue
 
 §§ 357, 358 FEDERAL COURTS. 327 
 
 taxes; over suits for penalties and forfeitures due to the 
 United States; over torts committed against the civil rights 
 of persons of color in violation of Constitutional Amend- 
 ments; over claims against the United States not exceeding 
 one thousand dollars; over all matters in bankruptcy under 
 the Bankrupt Acts of Congress; over crimes against the 
 United States which do not incur capital or infamous punish- 
 ment; and over the capital offence of piracy when there is no 
 Circuit Court in the District, (a) 
 
 Read 1 Kent, Lect. xiv, pp. 303-305, Lect. xvii, pp. 353-384 ; 
 Walker, Lect. viii, pp. 124, 125. 
 (a) 8 Wheat. 391 ; 3 Dall. 6. 
 
 § 357. Of the Court of Claims, and the Courts of the District 
 of Columbia. 
 
 The Court of Claims is a court established for the investi- 
 gation and adjustment of claims against the United States. 
 Its jurisdiction is confined to cases based on express con. 
 tracts, or on circumstances from which a promise to pay 
 money is implied, or on statutes which provide for compen- 
 sation from the Federal government to parties by whom 
 injuries have been sustained, (a) The Courts of the District 
 of Columbia bear the same relation to that portion of the 
 United States as the courts of individual States do to their 
 respective territories. They exercise both common law and 
 equity jurisdiction over all cases of contract, tort, or crime 
 in which the persons or property within the District are in- 
 volved. They also exercise judicial powers in special cases 
 of a wider character arising under Federal laws without refer- 
 ence to the residence of parties or the situs of the property. 
 
 Read (a) 5 Wall. 419; 11 Wall. 190; 11 Wall. 531; 91 U. S. 
 270; 112 U. S. 193: 174 U. S. 373. 
 
 § 358. Of the Concurrent Jurisdiction of Federal Courts aud 
 State Courts. 
 Except where controversies are placed by the Federal Con- 
 stitution, or the Acts of Congress in pursuance of the Con-
 
 328 AMERICAN JURISPRUDENCE. § 359 
 
 stitution, within the exclusive jurisdiction of the Federal 
 courts the State courts have concurrent jurisdiction over 
 them, and to whichsoever jurisdiction the controversy may 
 be first submitted it must be there determined unless re- 
 moved by proper legal methods to the other, (a) The field of 
 this concurrent jurisdiction is still extensive, although it is 
 within the constitutional powers of Congress to restrict it or 
 even to confer exclusive jurisdiction on the Federal courts 
 over all matters in reference to which the Constitution be- 
 stows judicial authority on the United States. 
 
 Read 1 Kent, Lect. xviii, pp. 395-104. 
 
 (a) 85 D 316, note; 139 U. S. 240; 6 Wall. 166; 9 
 Wall. 415; 11 Wall. 136; 57 D. 65, note; 67 D. 
 89, note. 
 
 § 359. Of the Common Law and Equity Powers of the Fed- 
 eral Courts. 
 
 All Federal courts possess both common law and equity 
 powers commensurate with the subjects-matter which are 
 within their jurisdiction. In applying to the controversies 
 brought before them the principles of Unwritten Law they 
 follow, so far as their view of a sound public policy will 
 permit, those rules and doctrines which are recognized in the 
 State where the controversy arose and by whose law it would 
 have been determined had not the matter been within the 
 jurisdiction of the Federal courts, (a) In equity proceedings 
 they adopt the remedies and methods of the English courts 
 of chancery, irrespective of the departures therefrom of the 
 equity systems of the different States: (b) In the trial of 
 causes at common law they observe, when reasonable and 
 convenient, the forms of pleadings, rules of evidence, and 
 general procedure which axe current in the State where the 
 Federal court is held, (c) 
 
 Read (a) 140 U. S. 106. 
 
 (ft) 3 Wheat. 212 ; 13 How. 518 (533); 21 How. 481; 150 
 
 U. S. 202. 
 (c) 10 Wheat. 1; 10 Wheat. 51; 113 U. S. 713; 146 
 
 U. S. 202 ; 12 How. 361 ; 2 Black, 535.
 
 §§ 360, 361 FEDERAL COURTS. 329 
 
 § 360. Of the Limited Topical Jurisdiction of the Federal 
 Courts. 
 All Federal courts are courts of limited but not inferior 
 jurisdiction, (a) They have no coguizance of controversies 
 outside the classes of cases enumerated in the Federal Con- 
 stitution. Their jurisdiction, therefore, does not extend to 
 probate matters, nor to questions concerning divorce and 
 alimony, nor to any suit arising under the penal laws of any 
 State, nor to any prosecution for an offence against the Un- 
 written Law, unless in some manner the interpretation and 
 application of a provision of the Federal Constitution or an 
 Act of Congress or a treaty enters into the case as an essen- 
 tial feature, necessary to its judicial determination, (b) The 
 spheres of the State Courts and the Federal Courts are and 
 were intended to be entirely distinct. Neither can trench 
 upon the jurisdiction of the other, and even where they have 
 concurrent jurisdiction they are still entirely independent 
 courts, and after one of them has once obtained judicial cog- 
 nizance of any case which might, had the plaintiff chosen, 
 been brought before the other, that other cannot iuterfere 
 with the proceedings instituted in the first court nor take 
 any action in the controversy until the case has, by a regular 
 process of removal, been submitted to its jurisdiction, (c) 
 
 Read (a) 10 Wheat. 192 (19.0, 200); 91 U. S. 455. 
 \b) 18 How. 470; 21 How. 5S2 ; 7 Cranch, 32. 
 (c) 24 How. 450 ; 3 Wall. 334 ; 111 U. S. 170 ; 112 U. S. 
 294. 
 
 § 361. Of the Territorial Jurisdiction of the Federal Courts. 
 
 The Federal Constitution and the Acts of Congress also 
 define the territorial jurisdiction of the Federal Courts. The 
 Supreme Court and the Court of Claims sit only at Washing- 
 ton, and their territorial jurisdiction is coextensive with the 
 United States. The Circuit Courts of Appeals, the Circuit 
 Courts, and the District Courts exercise their functions with 
 reference to more limited areas; the District Courts in small 
 judicial subdivisions of the United States, sometimes iden-
 
 330 AMERICAN JURISPRUDENCE. §§ 362, 363 
 
 tical in area with a single State, the Circuit Courts of Appeals 
 and Circuit Courts in groups of contiguous districts, of which 
 groups or circuits there are at present nine. Except in 
 special classes of cases a Circuit Court or District Court has 
 no original jurisdiction unless the property in question is 
 located or the adverse party resides within its territorial 
 jurisdiction, (a) 
 
 Read (a) 139 U. S. 240. 
 
 § 362. Of the State Courts and Territorial Courts. 
 
 Among the individual States of the American Union there 
 is no uniformity either as to the number or the organization of 
 their courts. In every State there is some supreme tribunal 
 by which all questions as to the interpretation of its laws, and 
 their applicability to given states of fact, are finally and con- 
 clusively determined. Under these are one or more inferior 
 courts in which all cases, civil or criminal, at law or in equity, 
 which are not within the exclusive jurisdiction of the Federal 
 courts, may be heard and decided. The mode in which these 
 courts may be created, their particular jurisdiction, the appoint- 
 ment or election of their judges, their terms of office and their 
 duties, are matters upon which each State has legislated for 
 itself, and still from time to time exercises its reorganizing 
 powers. The courts of Territories not yet developed into 
 States resemble those of individual States, except that they 
 are established and their officers are appointed by the Federal 
 authorities, (a) 
 
 Read 1 Kent, Lect. xvii, pp. 381-386 ; Cooley, C Law, Ch. vi, 
 pp. 155. 150. 
 (a) 9 How. 235; 18 Wall. 648. 
 
 § 363. Of Writs of Error, and the Removal of Causes, from 
 the State Courts to the Federal Courts. 
 
 Although in territorial jurisdiction and in jurisdiction over 
 persons and subjects the Federal Courts and State Courts are 
 entirely independent of one another, yet in reference to all
 
 § 363 FEDERAL AND STATE COURTS. 331 
 
 controversies to which the judicial power of the United States 
 extends, and as to which the State courts exercise concurrent 
 jurisdiction only by the concession or the acquiescence of the 
 Federal government, the State courts are in such a manner 
 inferior to the Federal courts that their action in these con- 
 troversies may be reviewed or superseded by the action of the 
 courts of the United States. Congress has provided two 
 methods for this reviewal or substitution of authority : (1) 
 By a writ of error from the decision of the State court to the 
 Supreme Court of the United States ; (2) By the removal of 
 the case, after its institution and before judgment, from the 
 State court to the proper Federal court at the suggestion of 
 the parties. The writ of error to the Supreme Court lies 
 where the controversy has been submitted to the highest court 
 of the State, and that court has rendered a judgment which 
 necessarily involves a denial of the validity of some treaty, 
 statute, or official authority of the United States, or of some 
 title, right, privilege, or immunity claimed under the Consti- 
 tution, statutes, treaties, commissions, or concessions of the 
 United States, or asserts the validity of some State statute or 
 authority which is alleged to be repugnant to the Constitution, 
 treaties, or statutes of the United States. The removal of 
 the case from the State to the Federal court takes place as a 
 matter of right where the controversy arises under the Con- 
 stitution, statutes, or treaties of the United States and is 
 within the original jurisdiction of the Circuit Courts; or 
 where the controversy is within the original jurisdiction of 
 the Circuit Courts and the defendant is not a resident of the 
 State in which the suit is brought; or where none of the de- 
 fendants are citizens of the same State as the plaintiff ; or 
 where some of the defendants are citizens of a different State 
 from the plaintiff, and the controversy is severable as to them, 
 and they affirm that a fair trial is impossible in the State 
 court in which the suit has been commenced (a); or where the 
 controversy relates to the title to land claimed by the adverse 
 parties under grants from different States; or where the suit 
 arises out of the denial or violation of the equal civil rights 
 guaranteed by the Constitution and laws of the United States:
 
 332 AMERICAN JURISPRUDENCE. § 364 
 
 or where the official acts of revenue officers of the United 
 States and the rights of persons claiming title under them are 
 so attacked as to call in question the validity of the laws un- 
 der which they acted ; or where an alien sues a civil officer of 
 the United States who at the institution of the suit was not 
 a resident of the State in which the suit was brought. The 
 facts which confer the right to remove being made apparent 
 on the face of the papers, the State court cannot hinder the 
 removal, but must forthwith transmit the case to the proper 
 Federal court which thereafter exercises over it an exclusive 
 jurisdiction. 
 
 Read Cooley, C. Law, Ch. vi, pp. 139, 145. 
 
 (a) 120 U. S. 223 ; 127 U. S. 322 ; 130 U. S. 230. 
 
 § 364. Of the Future Development of the Judicial Systems of 
 the United States. 
 The judicial systems of this country have apparently by no 
 means reached their final stage of development. Great 
 changes have taken place in the organization and jurisdiction 
 of both State and Federal courts during the past generation, 
 and many further changes must be made before the adminis- 
 tration of justice through these judicial tribunals reaches that 
 perfection of simplicity, expedition, economy, and certainty 
 which the political and social interests of a great commercial 
 people like our own demand. With exclusive jurisdiction 
 lodged in the Federal courts over all matters to which the 
 judicial authority of the United States extends, with the 
 reduction of the laws and courts of all the States to one 
 homogeneous system differing only as to the territorial area 
 within which their legislative and judicial powers were 
 exercised, and with an improved procedure framed upon true 
 business models, the hope for such perfection might not be 
 long unrealized.
 
 §§ 365. 366 fictions and presumptions. 333 
 
 CHAPTER XI. 
 
 OF FICTIONS AND PRESUMPTIONS 
 
 § 365. Of the Meeting of Law and Fact in the Borderland of 
 Fictions and Presumptions. 
 The application of law to facts constitutes government, or 
 the enforcement upon the subject of the rules of conduct dic- 
 tated by the reason and imposed by the will of the sovereign. 
 Government is the transmutation of law into life, the embodi- 
 ment of the wisdom and authority of the State in the acts and 
 forbearances of the citizen. The dividing line between law 
 and fact across or through which this transmutation takes place, 
 however sharp and clear it may be in theory, is not capable in 
 practice of exact demarcation. The law as a vital force flows 
 over into and permeates the realm of fact, forming a border- 
 land of legal doctrine in which the elements of law and fact 
 are so commingled that neither can be contemplated separately 
 from the other. This borderland is the field of fictions and 
 presumptions in which facts recognized by law may not exist, 
 and rules of law, no longer pure commands or prohibitions, 
 create the conditions to which they themselves apply. 
 
 § 366. Of the Necessity for Fictions and Presumptions. 
 
 The interposition of this middle ground between the spheres 
 of simple fact and simple law has sometimes been regarded as 
 arbitrary and absurd. But on reflection it will easily be seen 
 to be both natural and necessary. There are many states of 
 fact which in their character and extent are so invariable and 
 so easily comprehended as to be within the common knowledge 
 of mankind. They need no explanation; they require no 
 proof. To facts like these the law annexes inflexible and 
 universal rules, and to avoid foolish disputation and unending
 
 334 AMERICAN JURISPRUDENCE. § 367 
 
 controversies neither permits the rules to be questioned nor 
 the facts to be denied. Other states of fact occur which in so 
 large a proportion of instances are uniform in nature and 
 effect that, although subject to possible exceptions, they 
 are for the same reasons regarded as possessing their usual 
 characteristics and leading to their ordinary legal results until 
 their exceptional features have been affirmatively shown. Still 
 other states of fact exist which are so difficult of compre- 
 hension b} r any human lawgiver, or in their real character are 
 so incapable of being brought within the influence of practi- 
 cable rules, that no rule at all can be devised to meet them un- 
 less an artificial character is imputed to them by the law, in 
 view of which a just and reasonable rule to govern them can 
 be made. Thus is the law compelled, in the last state of 
 facts by necessity and in the two former by expediency, to 
 take possession of these portions of the field of fact, and 
 either to substitute its own conceptions for them, or to incor- 
 porate itself with them in rules which cannot be gainsaid or 
 can be departed from only where the objector is permitted 
 and is able to demonstrate that they are exceptions to the 
 general nature of the class of facts to which they belong. 
 These are the assumptions and conclusions of the law to which 
 are given the names of Fictions and Presumptions. They con- 
 stitute a necessary and essential ingredient- in the law. They 
 form the connecting medium between pure law and pure fact, 
 through which the former enters into and controls the latter 
 with an efficiency, economy, and certainty that in no other 
 manner yet conceived could be attained. 
 Read Best, Part i, Cli. i. pp. 1-16. 
 
 SECTION I. 
 
 OF LKUAL FICTIONS. 
 
 § 367. Of the Nature of Legal Fictions. 
 
 A legal fiction is a conclusion of law necessitated by justice 
 though contrary to truth, which is adopted because the actual 
 condition of the facts places them beyond the reach of law,
 
 § 368 fictions. 335 
 
 or because the law if applied to their actual condition would 
 inevitably work a wrong. ('<) Thus, for example, no law not pro- 
 ceeding from divine wisdom could fitly regulate the multitudi- 
 nous relations, rights, and obligations of husbands and wives, if 
 they were regarded as the independent, self-directing person- 
 alities which they truly are. The law therefore grapples with 
 the problems which the marital relation presents by assuming 
 at the outset what is certainly untrue, namely, that by the 
 act of marriage the personality of the wife is merged in that 
 of the husband, and thenceforth treats them as a single though 
 fictitious person whose rights and duties are definable by com- 
 paratively few and simple rules. Again, the ownership of 
 land by several disconnected parties presents questions which 
 are practically insoluble if the land itself, as a unitary phys- 
 ical object, is considered as the subject-matter in which the 
 rights of the various parties inhere. By assuming that the 
 subject-matter of each individual ownership is not the land but 
 an abstract estate or interest which, although a unit in refer- 
 ence to its owner, attaches to the land collectively with all 
 the other estates or interests in its due legal order and subor- 
 dination, the law is able to control and protect the rights of 
 all the parties, however numerous and varied their estates or 
 interests may be. 
 
 Read Best, Part i. Ch ii. p. 24. 
 (a) 33 D. Gil. 
 
 § 368. Of the Falsehood and Possibility of the Facts Assumed in 
 a Legal Fiction. 
 The facts assumed in a legal fiction, although the assump- 
 tion is avowedly untrue, must be in their nature possible. 
 That which is always and in every case impossible the law 
 cannot stultify itself by treating in any case as true. Hence 
 if the fiction be a physical fact it must not be opposed to the 
 known laws of nature, though it may never yet have fallen 
 within the limits of human experience ; if it be an abstraction, 
 a mere legal entity, it must not be unreasonable and absurd.
 
 336 AMERICAN JURISPRUDENCE. § 369 
 
 Thus in the two examples already given, where the fictions are 
 not physical facts, it is not contrary to reason to impute a 
 single personality — that is, a unitary controlling mind and 
 will — to the husband and his wife, or various separate estates 
 to the independent owners of interests in land, although cor- 
 poreally the wife and husband are necessarily distinct and the 
 assumed estates can exist only in contemplation of law. But 
 if these fictions were extended to embrace the physical identity 
 of married persons, or the subjection of estates to manual 
 dominion, they would assert impossible conditions, and in 
 reference to such conditions they would not be allowable in 
 law. 
 
 Read Best, Part i, Ch. ii, p. 26. 
 
 § 369. Of the Subordination of Legal Fictions to Essential 
 Justice. 
 
 The purpose of a legal fiction is the advancement of justice. 
 It must, therefore, be innocent and beneficial, preventing in- 
 convenience and remedying evils, and never be permitted to 
 work an injury. In fabricating them the principles of equity 
 are always to be recognized, and in interpreting and applying 
 them they must not be extended beyond the ends for which 
 they were invented. Within these limits the facts assumed 
 cannot be contradicted ; beyond them the fiction ceases and 
 the actual truth may be affirmed, (a) Thus the fiction that a 
 husband and wife are one person was intended for the protec- 
 tion of the person and property of the wife, as well as for the 
 general advantage of the husband and of society at large. But 
 when a wifs has property over which the law forbids her hus- 
 band to exert control, and which unless she has a separate 
 personality can therefore have no owner, the fiction lapses and 
 she is treated, so far as that property is concerned, as an in- 
 dependent person with the same rights and privileges as if 
 she were unmarried. 
 
 Read Best, Part i, Ch. ii, p. 25. 
 (a) 26 D. 232.
 
 §§ 370, 371 fictions. 337 
 
 § 370. Of Fictions as Substitutes for Legislation. 
 
 A legal fiction serves in many instances as a substitute for 
 legislation. New states of fact, to which in their real char- 
 acter no existing rule of law can be precisely applicable, are 
 frequently assumed to be identical in all their legally essential 
 features with states of fact already known, and therefore to 
 be subject to the same rules. The letter of the law in such a 
 case of course remains unchanged, but in its actual operation 
 it acquires a wider and perhaps a different meaning. Such 
 instances occur most frequently in the law of remedies, by the 
 extension of old methods of procedure to new forms of contro- 
 versy, as has in recent times occurred in the prevention by in- 
 junction of many wrongs for which, considered in themselves, 
 an adequate remedy exists at law but which, by the fiction 
 that their continuous or frequent repetition will lead to innu- 
 merable lawsuits or irreparable damage, have been brought 
 within the cognizance of courts of equity. All such extensions 
 of the law might, of course, be as effectually made by legisla- 
 tive action ; but legislative reform is necessarily slow, and 
 when the justice of a case at bar demands it the invention of a 
 legal fiction, which makes the existing law sufficient for the case, 
 is a far more speedy and convenient remedy. The precedent 
 thus established becomes a guide for future cases of a similar 
 character, and the extended or amended rule enters into and 
 thereafter forms a part of the Unwritten Law. So constantly 
 does this occur that legal fictions have long been recognized 
 by jurists as one of the chief instrumentalities in the develop- 
 ment of law. 
 
 § 371. Of the Classes of Legal Fictions. 
 
 Fictions are divisible according to their form into two 
 classes : Affirmative and Negative. An affirmative fiction as- 
 sumes the existence of that which does not exist. A negative 
 fiction assumes the non-existence of that which does exist. 
 That a husband and wife are one person is an instance of the 
 former; that a disseisee who has regained possession was never 
 out of possession is an example of the latter. Fictions are 
 
 22
 
 338 AMERICAN JURISPRUDENCE. § 372 
 
 further divisible according to their extent into Substantive 
 and Relative. A substantive fiction is one in which the entire 
 state of facts is fictitious, as that the owner of land does not 
 own the land, but merely an estate therein. A relative fiction 
 is one in which the substance of the state of facts is true, but 
 its assumed relation to other facts is false. The relative 
 fictions are of four classes : (1) Those where the act of one 
 person is assumed to be the act of another, as in all cases of 
 agency, conspiracy, and the like ; (2) Those where an act done 
 by or to a thing is regarded as done by or to another thing, as 
 when a trespass by animals is treated as a trespass by their 
 owner, or the acceptance by the buyer of a portion of a lot of 
 goods is considered to be the acceptance of the whole, or the 
 payment of part of a debt is taken as an admission of con- 
 tinued liability for the entire obligation, or the possession of 
 land is transferred by livery of seisin ; (3) Those where an act 
 performed at one place is presumed to have been done at 
 another, as where a transaction arising at sea is assumed to 
 have happened on shore in order to give jurisdiction to the 
 local courts ; (4) Those where an event occurring at one time 
 is regarded as occurring at another, as when the title of an ad- 
 ministrator relates back to the date of the death of his intes- 
 tate, or a judgment rendered at a subsequent term of court is 
 imputed to the previous term when the case was tried, (a) 
 
 Read Best, Part i, Ch. ii, pp. 26-28. 
 (a) 15 D. 242, note. 
 
 § 372. Of the Invention and Abandonment of Fictions. 
 
 The number of legal fictions is very great and subject to 
 continual accessions and subtractions. Created whenever the 
 justice of a case requires it, they are abandoned whenever the 
 same end is attainable by more definite means or when the ne- 
 cessity in which they originated has expired. Legislation, by 
 providing a new rule, dispenses with the old as well as with 
 the fiction on which it was based; and a judicial decision, 
 though led to its results by a pure fiction of law, often be- 
 comes an established rule which supersedes the fiction and
 
 § 373 PRESUMPTIONS. 339 
 
 thenceforth governs the facts without its aid. The more per- 
 fectly the rules of written and unwritten law correspond with 
 the actual conditions of society the less occasion have the 
 courts to create assumed conditions to which the rules already 
 established may apply ; and it is thus conceivable, though 
 scarcely possible, that the law may by and by become so 
 perfect that legal fictions will wholly disappear. 
 
 SECTION II. 
 
 OF PRESUMPTIONS. 
 
 § 373. Of the Nature of Presumptions. 
 
 A Presumption is a conclusion as to the existence or non- 
 existence of disputed facts derived from the consideration of 
 facts already known. (a) This conclusion may be reached by 
 logical inference from the known facts, or may be authori- 
 tatively assumed by the law, without reference to logical 
 processes, whenever the facts from which it is derived appear. 
 Where the conclusion is the result of reasoning from the 
 known facts it is called a presumption of fact, (b) Where it 
 is established by legal authority it is called a presumption of 
 law. Presumptions of fact are in their nature identical with 
 the inferences which men in ordinary life draw from the 
 objects and events within their knowledge. Presumptions of 
 law resemble fictions in that they are pure legal assumptions, 
 but differ from them in that the assumed facts in the fiction 
 are admitted to be false, while in the legal presumption they 
 may be and probably are true. These presumptions are 
 created or recognized by the law from motives of economy 
 and public policy; from economy when the fact presumed is 
 so universally and uniformly the consequence or concomitant 
 of the known fact that the presence of the latter makes the 
 former probable or certain, and therefore renders proof of it 
 superfluous; from public policy when the presumed fact is so 
 essential to the attainment of justice in all cases where the 
 known facts exist that the law is forced to attach the former
 
 340 AMERICAN JURISPRUDENCE. § 374 
 
 to the latter as its legal consequence, independently of any- 
 actual or logical relation between them. But whether pre- 
 sumptions of law or presumptions of fact, their common 
 basis is a known state of facts, for presumptions cannot be 
 derived from other presumptions, thereby subjecting the con- 
 clusion to liability to double error, but must rest on the 
 impregnable foundation of matters actually known. 
 
 Read (a) 85 D. 327 (330). 
 
 (6) 83 D. 712 (717) ; 105 U. S. 614 (617). 
 
 § 374. Of the Distinctions between Presumptions of Law and 
 Presumptions of Fact. 
 
 Presumptions of law and presumptions of fact are distin- 
 guished from one another by differences so numerous and 
 radical as to leave them little in common except the cause of 
 their existence and their name. (4) A presumption of law 
 is a rule of law, established by statute or judicial legislation, 
 and applied by the court directly to the facts like any other 
 rule of law. A presumption of fact is a logical deduction 
 which derives no force from the enactments of positive law 
 and is applied by the judge or jury to the facts according to 
 the customary methods of reasoning. (2) A presumption of 
 law does not rest on probability nor require it, though it 
 generally possesses it. A presumption of fact depends en- 
 tirely upon the probability or certainty that if the known 
 fact exists the disputed fact also exists. (3) A presumption 
 of law arises only from the states of fact to which the law 
 attaches it, and applies only to conditions which are sub- 
 jected to it by the law, and consequently is uniform in origin 
 and influence so long as it exists. A presumption of fact 
 arises out of any circumstances from which it is the logical 
 conclusion, and governs every fact which naturally lies within 
 the scope of that deduction. (4) A presumption of law can 
 be changed at any time by legislation or judicial decision, 
 establishing a different presumption from the same facts or 
 withdrawing from them all legal effect and leaving them to 
 be the basis of such presumptions of fact as the rules of logic
 
 § 375 •' PRESUMPTIONS. 341 
 
 may require. A presumption of fact, if logically correct, 
 is unchangeable, the derivation of the conclusion from the 
 premises depending upon laws and relations which no human 
 authority is able to disturb. (5) A presumption of law is 
 imperative upon the court whenever the facts to which it is 
 attached appear. , A presumption of fact is binding upon the 
 judge or jury only in proportion to the certainty or proba- 
 bility with which it logically follows from the facts already 
 known, and may be wholly disregarded when the probability 
 is weak. (6) A presumption of law ignored or contradicted 
 by the court gives to the defeated party in the suit a right to 
 a new trial. A presumption of fact excluded from considera- 
 tion by the judge or jury constitutes no ground for the grant 
 of a new trial to the defeated party, unless the court is satis- 
 fied that in discarding the presumption the obvious and neces- 
 sary rules of logic have been violated. 
 
 Read Best, Part i, Ch. ii, pp. 17, 19, Ch. hi, pp. 31-36. 
 
 § 375. Of the Classes of Presumptions of Law. 
 
 Presumptions of law are divided into two classes: Pre- 
 sumptions juris et jure ; and Presumptions juris tanturn. A 
 presumption juris et jure is a presumption which the law not 
 only attaches to the facts but whose truth it rigidly main- 
 tains, and which it employs as a basis for the establishment 
 of fixed legal rights. Such a presumption is conclusive and 
 cannot be rebutted by any contrary proof however strong. 
 Thus the presumptions that a final judgment by a competent 
 court has done exact justice to the parties and has thereby 
 extinguished the cause of controversy, that every person 
 knows the law, that infants under seven years of age are 
 incapable of criminal intent, cannot be contradicted by evi- 
 dence and are not open to discussion. A presumption juris 
 tanturn is a presumption which the law attaches to the facts 
 and maintains as their necessary legal consequence until it 
 is proved by sufficient testimony that the consequence does 
 not in fact exist. This is a true presumption of law because 
 it is made by the law, and so long as it continues it possesses
 
 342 AMERICAN JURISPRUDENCE. § 376 
 
 all the attributes of other presumptions of law. It differs 
 from a presumption juris et jure in that the law will not 
 maintain it to the exclusion of evidence to the contrary or 
 after proof establishing its falsehood has been adduced. 
 Instances of presumptions juris tantum are : that all human 
 beings are sane; that all accused persons are innocent; that 
 every one intends the natural consequences of his own acts; 
 and that all public officers are presumed to have done their 
 duty. Though presumptions juris et jure are sometimes nec- 
 essary and often advantageous, yet the tendency in modern 
 law is to make all legal presumptions, so far as possible, pre- 
 sumptions juris tantum, .and therefore inoperative when con- 
 trary to demonstrable truth. 
 
 Read Best, Part i, Ch. ii, pp. 20-23, 29, 30 ; Austin, Lect. xxvi, 
 pp. 491-494. 
 
 § 376. Of the Classes of Presumptions of Pact. 
 
 Presumptions of fact are of almost endless variety and may 
 be based on any premises whether physical or psychical. 
 The field they occupy is the same in law as in ordinary life, 
 except that the law refuses to notice those in common use 
 whose influence is too remote or whose basic facts could 
 easily be fabricated. They are sometimes classified for the 
 purpose of estimating their juridical value into (1) Strong 
 presumptions; (2) Probable presumptions; and (3) Slight 
 presumptions: the strong existing, where the basic facts are 
 certain and the logical deduction is clear; the probable, 
 where the premises are certain and the inference is probably 
 correct; the slight, where the connection between the known 
 facts and the disputed facts is so remote that the existence 
 of the former is entirely consistent with the non-existence 
 of the latter. Where the basic facts are uncertain no ] ire- 
 sumption whatever can arise. Slight presumptions have no 
 probative value. The probable are of weight in proportion 
 to their probability and can be rebutted only by showing that 
 their falsehood is as probable as their truth. The strong are
 
 §§ 377, 378 presumptions. 343 
 
 conclusive unless the contrary is established by direct and 
 overwhelming evidence. 
 
 Read Best, Part i, Ch. iii, pp. 36-44. 
 
 § 377. Of Mixed Presumptions. 
 
 There are certain conclusions of fact which the law re- 
 quires a judge or jury to draw whenever the proper basic 
 facts are present, either because the logical deduction is so 
 apparent and inevitable that only crass ignorance or wilful 
 error could avoid it, or because public policy requires that 
 in connection with the known facts other facts which are not 
 their direct logical consequence should be assumed to exist. 
 These conclusions are called mixed presumptions. They are 
 true presumptions of fact, not presumptions of law, but differ 
 from other presumptions of fact in that the law reinforces by 
 its own authority the evident logical deduction, or where 
 the deduction is not evident authoritatively supplies its 
 place. Cases in which authority may thus take the place of 
 logic in presumptions of fact are chiefly those in which rights 
 long enjoyed and recognized are liable to be defeated on 
 account of technical defects of title or for want of evidence 
 which may have been obliterated by lapse of time. In these 
 cases the law may compel an inference to be drawn in favor 
 of the right from its enjoyment, as it does in instances of 
 title by prescription or in assuming the validity of ancient 
 deeds. Mixed presumptions rank as to their probative value 
 with strong presumptions of fact and can be rebutted only by 
 direct and convincing evidence. 
 
 Read Best, Part i, Ch. iii, pp. 45-51. 
 
 § 378. Of the Number and Variety of Presumptions. 
 
 Presumptions of law and fact pertain to almost every aspect 
 of human affairs and are employed to some extent in every 
 judicial investigation. Any attempt to enumerate them would 
 be futile not only on account of their multitude but because 
 they are subject to continual change in number by the addition 
 or withdrawal of individual presumptions of law. Nor can
 
 344 AMERICAN JURISPRUDENCE. § 879 
 
 they be grouped in such, a manner as to assign each presump- 
 tion to its proper species as a presumption juris et jure, a pre- 
 sumption juris tantum, a presumption of fact, or a mixed 
 presumption, for the reason that the laws of our different 
 States or the law of the same State at different times may- 
 alter the legal status of a presumption by removing it from 
 one of these species to another. To arrange the principal pre- 
 sumptions, whether of law or fact, according to the nature of 
 the basic facts out of which they arise is, however, practicable, 
 and will afford the student a clearer view of their character 
 and variety. 
 
 § 379. Of Presumptions against Ignorance and Wrong. 
 
 Presumptions against ignorance and wrong are based upon 
 the fact that reasonable and upright men, which all citizens 
 are supposed to be, inform themselves as to their duties and 
 conscientiously perforin them. From this fact arise the fol- 
 lowing presumptions : (1) That everyone knows such rules 
 of law as it is his legal duty to obey (a); (2) That all acts and 
 forbearances are lawful ; (3) That every person discharges his 
 legal obligations ; (4) That no one commits fraud or tort or 
 crime; (5) That persons who cohabit are married; (6) That 
 all children are legitimate ; (7) That corporations confine 
 their acts within their powers; (8) That all persons adhere to 
 the customary religion of the community in which they live ; 
 (9) That every public officer was rightfully appointed ; (10) 
 That every official act is properly performed (b)\ (11) That all 
 public records are correct ; (12) That the deeds, wills, and 
 other instruments made by past generations — that is, more 
 than thirty years old — were lawfully executed; (13) That 
 every person interested to know what the public land records 
 or court rolls contain does know it ; (14) That every person 
 knows what he is interested to know and could find out by 
 ordinary inquiry, (c) 
 
 Read Best. Part ii, Ch. i, ii, pp. 63-86, Ch. viii, pp. 211-215. 
 
 (a) 55 St. 488, note. 
 
 (b) 10 D. 232. 
 
 (c) 9 D. 736 ; 38 D. 124 ; 23 D. 36, note ; 74 D. 169.
 
 §§ 380, 381 presumptions. 345 
 
 § 380 Of Presumptions that Persons Assert their Rights. 
 
 Presumptions that persons assert their known rights against 
 invaders are based upon the facts that human reason and 
 instinct prompt such assertion, that the law can protect rights 
 only when its aid is invoked by their owner, and that the fail- 
 ure to assert them when the} - are invaded results practically 
 in their loss. These presumptions are : (1) That one possess- 
 ing and using the property of another does so by his per- 
 mission; (2) That every beneficial enjoyment of property is 
 coupled with a legal right ; (3) That every apparent title is a 
 true title ; (4) That every long continued privilege in the laud 
 of another must have originated in a grant ; (5) That a high- 
 way across private laud which has been for a considerable 
 period in public use was once dedicated to the public by its 
 owner; (6) That rights long unasserted are extinguished. 
 Many of these presumptions occupy the same field as those pro- 
 visions of the Statute of Limitations which forbid the courts 
 to interfere on behalf of parties whose claims, however just in 
 their inception, have become stale through lapse of time, (a) 
 
 Read Best. Part ii, Ch. iii, pp. 87-169. 
 (a) 6 Wheat. 481 ; 111 U. S. 395. 
 
 § 381. Of Presumptions that the Course of Nature is Ob- 
 served. 
 Presumptions that events happen according to the ordinary 
 course of nature are based on universal human experience. 
 Such presumptions are : (1) That all the phenomena of na- 
 ture occur in their usual order and method ; (2) That chil- 
 dren are born at the end of the usual period of gestation ; 
 (3) That all persons reach the normal term of human life (a) : 
 ■1 That infants under seven are mentally incapable of crime ; 
 (5) That males under fourteen and females under twelve can- 
 not unite in the duties of the marriage relation ; (6) That 
 persons intend the natural consequences of their acts and 
 omissions (b) ; (7) That voluntary wrong springs from, malice ;
 
 346 AMERICAN JURISPRUDENCE. § 382 
 
 (8) That every one accepts a proffered benefit ; (9) That all 
 persons are sane ; (10) That when the desire and the oppor- 
 tunity to do an act concur the act will be done; (11) That 
 the silence or falsehood of one who is accused of wronsr 
 indicates guilt ; (12) That the fabrication or suppression of 
 evidence indicates guilt ; (13) That flight or concealment 
 indicates guilt ; (14) That confessions of guilt and admissions 
 against interest are true. 
 
 Read Best, Part ii, Ch. iv, pp. 170-178, Ch. vii, pp. 203-210, 
 Part iii, Ch. i, ii, pp. 246-344. 
 
 (a) 58 D. 740. 
 
 (b) 21 Wall. 325 (337, 338). 
 
 § 382. Of Presumptions that the General Usages of Society 
 are Observed. 
 
 Presumptions that the current usages and habits of society 
 are observed are based on the fact that the usages voluntarily 
 adopted by society are generally reasonable and suitable to 
 their condition, and that conformity to them is necessary for 
 those who would participate in its advantages and operations. 
 These presumptions are of great variety, some commercial, 
 some domestic, some purely civic. Of these the following are 
 examples : (1) That the customs of a trade are observed by 
 all parties engaged in it ; (2) That the knowledge of an 
 agent is communicated to his principal (a) ; (3) That parties 
 to written contracts read and understand them before they 
 execute them ; (4) That a deed in the possession of a grantee 
 was delivered on the day of its date ; (5) That erasures and 
 interlineations in a deed were made before its delivery (b) ; 
 (6) That the holder of a note or bill took it before matur- 
 ity (c) ; (7) That a bill or note in the possession of the maker 
 has been paid; (8) That a sealed instrument imports a con- 
 sideration ; (9) That a letter or telegram properly forwarded 
 reaches its destination (d) ; (10) That all residents in a State 
 are citizens ; (11) That identity of name is identity of per- 
 son ; (12) That a person absent from home for seven years,
 
 §§ 383, 384 presumptions. 347 
 
 without being heard, from, is dead (e) ; (13) That public offb 
 cers transact their business in the customary manner. 
 
 Read Best, Part ii, Ch. v, pp. 179-185 ; Markby, §§ 281, 290. 
 («) 1 1 Wall. 356. 
 (6) 10 Wall. 26. 
 
 (c) 94 U. S. 753; 95 U. 8. 16. 
 
 (d) 7 R. 536; 53 R. 22. 
 
 (e) 8 D. 658 ; 58 D. 740 ; 92 D. 248. 
 
 § 383. Of Presumptions in Reference to Time. 
 
 Presumptions as to time originate partly in the usages of 
 society and partly in the construction given by the courts to 
 the language of statutes and other documents. The law rec- 
 ognizes a year as a calendar year, a month as a calendar 
 month, and a day as the ultimate unit of time, all more minute 
 subdivisions being arbitrary and variable. («) Hence it re- 
 fuses to take notice of fractions of a day except in special 
 cases where justice requires it, and presumes that an act done 
 or to be done on a given day was done or may be done at any 
 moment in the day between midnight and midnight, (i) In 
 computing time from or to a given date the day of the date is 
 presumed to have been excluded, (c) The law also regards 
 Sunday as a dies non on which no private contract can be made 
 nor an avoidable official act be legally performed, (d) 
 
 Read Black, Ch. v, §§ 71-73. 
 
 («) 7 I). 240, note ; 21 D. 492 ; 32 R. 86, note ; 46 R. 
 406, note; 139 U. S. 137 (143-146). 
 
 (b) 26 1). 232, note ; 52 D. 156 ; 104 U. S. 469 ; 147 U. S. 
 
 640. 
 
 (c) 59 R. 326 ; 50 D. 249. 
 
 (</) 111 U.S. 597; 140 U.S. 118(131): 12 D. 287, note; 
 19 1). 608, note. 
 
 § 384. Of Presumptions that Existing States of Fact Continue. 
 Presumptions that states of fact, once existing, continue in- 
 definitely are based on experience and on the necessity for a rule 
 determining upon whom rests the duty of proving that they
 
 348 AMERICAN JURISPRUDENCE. § 385 
 
 have or have not changed, (a) Among these presumptions 
 are : (1) That a person once living, and whose natural term of 
 life has not expired, is still alive (b) ; (2) That a domicile once 
 acquired remains unchanged ; (3) That a relation, marital, 
 commercial, or official, once established, still exists; (4) That 
 debts once due are still due : (5) That opinions once adopted 
 are still maintained; (6) That the known habits of men and 
 animals still persist. 
 
 Read Best, Part ii, Ch. vi, pp. 186-202. 
 
 (a) 50 R. 296, note. 
 
 (b) 5 D. 727. 
 
 § 385. Of Presumptions in Reference to Rights, Duties, and 
 Liabilities. 
 
 Presumptions as to the legal status and liabilities of persons 
 and property are based on the rules of law prevailing in the 
 State where the presumption is raised, and there applied to 
 states of fact similar to those as to which the presumption 
 is adopted. Such are the presumptions : (1) That the laws of 
 States of the same origin and traditions are identical (a) ; (2) 
 That the Common Law prevails in all the States of the Ameri- 
 can Union ; (3) That the bed of navigable tidal waters be- 
 longs to the State ; (4) That the boundary between private and 
 public ownership in tidal waters is high-water mark ; (5) That 
 the soil beneath unnavigable streams belongs to the riparian 
 proprietors ; (6) That the owner of land adjoining a highway 
 owns to the centre of the highway ; (7) That surface and sub- 
 jacent owners of land have mutual rights of support ; (8) That 
 the possessor of personal property is the owner of it ; (9) 
 That the lex loci contractus is part of the contract; (10) That 
 a marriage valid where performed is valid everywhere ; (11) 
 That a wife committing felony or misdemeanor in company 
 with her husband acts under his coercion ; (12) That a com- 
 mon carrier losing goods otherwise than by act of God or the 
 public enemy was guilty of negligence ; (13) That innkeepers 
 are at fault if the property of their guests is missing. 
 
 Read Best, Part ii, Ch. x, pp. 235-245. 
 (a) 5 R. 540.
 
 §§ 886, 387 presumptions. 349 
 
 § 386. Of Conflicting Presumptions. 
 
 Presumptions juris tantut/i or presumptions of fact may 
 occasionally conflict with one another owing to the existence 
 in the controversy of states of fact which afford contrary 
 presumptions. This is, of course, impossible with presump- 
 tions juris et jure which are imperative rules of law incapable 
 of contradiction. Where such conflict arises between pre- 
 sumptions of equal intrinsic weight, that presumption is main- 
 tained which is most consonant with justice and equity. Those 
 which impute validity to acts and instruments overcome those 
 which would invalidate them. Those which assert the in- 
 tegrity and innocence of the parties outweigh those which 
 point to their fraud or guilt. Those which are in harmony 
 with the course of nature are followed as against the casual 
 and extraordinary. General presumptions give way to special 
 ones, and where there is no other guide, and the justice of the 
 case is equal under either presumption, that one whose logical 
 necessity or legal authority is the strongest will prevail. 
 Read Best, Part i, Ch. iv, pp. 52-61. 
 
 § 387. Of the Relation of Legal Fictions and Presumptions to 
 the Law of Evidence. 
 The doctrine of legal fictions and presumptions which thus 
 performs so important a function in the administration of law, 
 is interwoven with every great division of the law, and is en- 
 countered by the student in every sphere of his investigations. 
 From its relation to the methods of judicial inquiry, its effect 
 upon the burden of proof both in criminal and civil cases, and 
 the partial or complete substitution of presumptions and 
 fictions for actual testimony, it is, however, generally com- 
 prehended under the law of Evidence, and in treatises upon 
 that subject receives its fullest explanation and discussion. 
 
 Read Morey, p. 411.
 
 350 AMERICAN JURISPRUDENCE. § 388 
 
 CHAPTER XII. 
 
 OF THE DEPARTMENTS OF LAW. 
 
 § 388. Of the Practical Classification of Laws. 
 
 The application of the law to practical affairs results in the 
 distribution of its rules into classes somewhat different from 
 those into which it logically divides. Statutes and decisions are 
 evoked by special needs arising out of current social conditions, 
 and thus the law in force at any given period consists of those 
 commands and prohibitions only which are required for the 
 immediate direction and protection of the people of the State 
 in the enjoyment and vindication of their political, personal, 
 and property rights. In one social condition these rights as- 
 sume certain forms and attach to certain objects, to meet 
 which in their numerous details the rules of law are framed. 
 At a later period, and under changed social conditions, other 
 objects fall within these rights and the rights vary in form to 
 correspond with them, and the law, following the course of 
 nature, manifests itself in new rules adapted to the new states 
 of affairs. Thus in the history of our own law successive 
 social epochs have been marked by the development of suc- 
 cessive bodies of law, or groups of rules pertaining to different 
 subjects and conditions which take their names and general 
 character from the conditions and the subjects under their 
 control, and are known as " branches " or " departments " of 
 the law. In each of them the rules of substantive law and 
 adjective law, of public law and private law, of national law 
 and international law, of Federal law and State law, of Eng- 
 lish law and American law may be commingled. They are the 
 corn and wheat and herbage emerging from the social soil into 
 which those logical ingredients of the law have entered, and 
 where uniting with its varying elements they have produced
 
 § 389 THE DEPARTMENTS OF LAW. 351 
 
 that concrete legal pabulum by which political society is fed. 
 It is in the forms resulting from this final evolution of the 
 law that the student is confronted with it as a subject of in- 
 vestigation when he endeavors to prepare himself to partici- 
 pate in its administration, and with their brief description a 
 work on Jurisprudence may appropriately close. 
 
 § 389. Of the Law of Real Property. 
 
 Until the present century the most important affairs of 
 the Anglo-Saxon races on both sides of the Atlantic were 
 identified with land. The land itself and interests in land 
 constituted not only the wealth of the people and the sum of 
 their material resources, but gave its form to their social orga- 
 nization and moulded their political institutions. Its settled 
 modes of ownership and use, the relations into which its occu- 
 pation by a tenant brought him with its lord, the methods of 
 its transfer during the life or at the death of its possessor, 
 were among those customs brought by the earliest Saxon im- 
 migrants to England, and had been observed for ages before 
 the laws of Alfred and of the Confessor gave them permanent 
 expression. To these customs Norman feudalism added many 
 others which Acts of Parliament corrected or affirmed, and 
 judgments of the courts interpreted and applied, until the law 
 of landed property became by far the most complete and intri- 
 cate of all the legal systems which our political history has 
 ever known. Meanwhile, in response to the demands of social 
 conditions which have practically assimilated to the land other 
 objects not essentially connected with it, this law has been ex- 
 tended to embrace these objects also, and it is now no longer 
 possible to draw a line of physical demarcation between those 
 which are governed and those which are not governed by its 
 rules. The Law of Real Property has thus always been and 
 still is, though in a less .comparative degree, the bed-rock of 
 our law, the earliest and most stable as well as the most com- 
 prehensive of all the groups of rules into which the law has 
 been divided through its practical application to concrete affairs.
 
 352 AMERICAN JURISPRUDENCE. § 390 
 
 Naturally it engrossed for many centuries a major part of the 
 attention of our courts and jurists, whose writings and de- 
 cisions form to-day a large proportion of the literature of our 
 law, while its subordinate branches of Conveyancing and Wills 
 have furnished generations of practitioners with responsible 
 and lucrative employment. 
 
 § 390. Of the Law of Civil Actions. 
 
 Dating back to the same prehistoric period of Teutonic cus- 
 tom the crude beginnings of our present method of judicially 
 applying remedies to private wrongs appear ; as early as King 
 Alfred's time, at least, developing into an established system 
 of superior and inferior courts, with well-defined original and 
 appellate jurisdiction, with orderly proceedings and all the 
 essential features of our modern courts of common law. 
 Under the social conditions which prevailed in that and many 
 subsequent generations the principal controversies which re- 
 quired judicial settlement were those concerning land, or those 
 arising out of injuries by violence or the breach of an express 
 agreement for which an adequate compensation in money could 
 be made. The importance of the interests at stake in landed 
 controversies, and the difficulties encountered in the effort to 
 comprehend, define, and adjudicate upon the questions which 
 those controversies involved, necessitated methods of proced- 
 ure which under the Norman kings and their justiciars 
 became exact and technical in the last degree, and in which 
 any error, however trivial, imperilled the judgment that the 
 party making the mistake might afterwards obtain. Under 
 these circumstances the Law of Civil Actions stood side by 
 side in consequence and intricacy with the law of real prop- 
 erty and shared with it the studies and the expositions of the 
 judges and law-writers of that day. Most of the treatises 
 before the Commentaries of Blackstone are either wholly occu- 
 pied with one of these great subjects or are divided almost 
 equally between them, while those chapters of his own incom- 
 parable work which display the profoundest learning and the
 
 § 391 THE DEPARTMENTS OF LAW. 353 
 
 highest powers of explanation are those devoted to the rules 
 governing real property and the remedies for private wrongs. 
 The simplifying processes of later days, intended though they 
 are to make this subject both in theory and practice less ob- 
 scure, do not and never can emancipate it from those difficul- 
 ties which render the efforts of the student to explore it labo- 
 rious and irksome, and in its practical administration demand 
 of the lawyer and the judge the keenest perception and the 
 most cautious application of its rules. 
 
 § 391. Of the Laws of Practice, Pleading, and Evidence. 
 
 Embraced in the law of civil actions are three subordinate 
 groups of rules known as the Law of Practice, the Law of 
 Pleading, and the Law of Evidence. Apart from these the 
 law of civil actions is devoted mainly to the definition of 
 actionable wrongs, with the forms of action and the modes 
 of compensation provided for them by the law. The Law of 
 Practice includes the rules by which the courts and their vari- 
 ous officers are guided in the conduct of judicial business from 
 the inception of an action until the final satisfaction of the 
 judgment and its entry on the records of the court. This 
 group of rules is of the highest practical importance. Accord- 
 ing to an ancient maxim " the practice of the courts is the law 
 of the courts," and it is evident that the ultimate result of 
 every legal controversy must depend to a great extent upon 
 the justice and the wisdom of the rules by which the court is 
 governed iu conducting its investigations and in forming its 
 conclusions. These rules run out into an almost infinite de- 
 tail, and it is by his thorough knowledge of them and ability 
 to follow them, and his inflexible enforcement of their observ- 
 ance upon his antagonists, that the skilfulness of a practitioner 
 is measured. The Law of Practice is often called "the law of 
 civil procedure," and sometimes, especially in England, "the 
 law of nisi pritts" after ;i common appellation of the court- by 
 which its rules were generally prescribed. Tin' Law of Plead- 
 ing is the group of rules by which the mutual written alterca-
 
 354 AMERICAN JURISPRUDENCE. § 392 
 
 tions of the parties to an action, whereby they make known 
 to the court and one another their respective claims, are so 
 regulated that eventually they terminate in one or more spe- 
 cific issues, each containing the affirmation and denial of some 
 single proposition material to the decision of the cause, and 
 therefore capable of a definite endorsement or repudiation by 
 a judge or jury. These rules prescribe not only the substance 
 which these mutual altercations must contain, but the modes 
 of its arrangement and the forms of its expression, in order 
 that the necessary completeness, accuracy, and brevity of each 
 may be secured. The Law of Evidence governs the various 
 methods by which the truth of the allegations contained in the 
 pleadings of the parties is investigated, and determines the 
 competence and credibility of witnesses, the probative value of 
 the different species of written and objective testimony, and 
 the conclusiveness or prima facie weight of fictions and 
 presumptions. 
 
 § 392. Of the Law of Crimes. 
 
 The Law of Crimes is that group of rules which defines and 
 prohibits public wrongs and prescribes the methods of their 
 prosecution and punishment. As all public wrongs are of- 
 fences against the State, or as it would anciently have been 
 expressed " against the Crown," the Law of Crimes was long 
 known in England as " Crown Law," and the treatises con- 
 cerning it were entitled " Of Fleas of the Crown." This branch 
 of law is also of extreme antiquity. In primitive conditions 
 of society few offences against the community at large are 
 possible, while injuries to private persons unless of the most 
 atrocious character are rarely noticed by the State. But as 
 society becomes more complex, especially as the prerogatives 
 of sovereignty are enumeratively defined and concentrated 
 in a single individual, acts and omissions which invade 
 his royal rights increase in variety and frequency, and pri- 
 vate wrongs which find no adequate redress in civil actions, 
 yet in the improving moral judgment of the community de-
 
 § 392 THE DEPARTMENTS OF LAW. 355 
 
 mand at least the punishment of the offender by the strong 
 arm of the State, are recognized as indirect violations of the 
 sovereign's rights and proper subjects of his penal laws. 
 More perhaps than any other branch of law the Law of Grimes 
 reflects the current sentiment of the people of the State, and 
 for this reason its prohibitive provisions change and fluctuate 
 with every passing wave of popular convictions. For the 
 same reason also the substantive Law of Crimes is principally 
 of statutory origin ; but few crimes being of such a character as 
 to attack fundamental rights in every stage and condition of 
 society and therefore capable of becoming subjects of the cus- 
 tomary law. Such has been the history of our Criminal Law, 
 from the age when the " blood-wite" exacted by the public from 
 the slayer in a case of voluntary homicide formed almost the 
 only instance of punishment for crime down through the periods 
 of multitudinous forms of treason, of numerous offences against 
 the established religion, of forest laws and trade laws, until our 
 own in which crimes against the State itself are few while 
 nearly every private injury from which the citizen can suffer, 
 either in person, property, or reputation, is prosecuted and 
 punished by the State. But the adjective law of Crimes, 
 called the Law of Criminal Procedure, has not shared in these 
 mutations. Fashioned by custom on the same general plan as 
 civil actions, its rules of practice, pleading, and evidence have 
 gradually but steadily developed from the rude trial before 
 the village freemen presided over by the headman of the com- 
 munity, with the injured party or his family for prosecutor and 
 the accused backed by his blood-relations as his own defender, 
 into the present orderly, complete, and usually successful 
 method of investigating and determining the guilt of persons 
 charged with crime. The Law of Criminal Procedure is thus 
 the stable and persistent portion of our Law of Crimes, and 
 this explains the fact that, taking all the treatises upon the 
 Law of Crimes together, so large a proportion of their contents 
 is devoted to the subject of Procedure, and so incomplete the 
 information which they give concerning substantive offences, 
 compelling the student for his knowledge of the public wrongs 
 which the State in its own name will prosecute and punish
 
 356 AMERICAN JURISPRUDENCE. § 393 
 
 to have recourse to his own local statutes, interpreting their 
 language by the definitions of the Unwritten Law and the de- 
 cisions of the courts. 
 
 § 393. Of the Law of Torts. 
 
 The Law of Torts is that group of rules which determines 
 the nature of those private wrongs, other than breaches of 
 contract, for which the courts in civil actions will afford redress. 
 Its history commences with that of society itself, when in- 
 jured parties in obedience to a natural instinct made personal 
 reprisal on the violators of their rights by seizing property as 
 compensation or inflicting a commensurate loss. The inter- 
 ference of the sovereign power with this mode of redress, at 
 first to regulate it in the interest of public peace and order, 
 later to , act through its official agents on behalf of the com- 
 plainant, and finally to take entire charge of the controversy 
 and decide it and enforce against both parties its decrees, were 
 the steps by which in the course of ages compulsory redress 
 for private wrongs, except in a few instances of great emer- 
 gency, was taken altogether out of the hands of private per- 
 sons and administered entirely by the courts. Obviously, this 
 interference by the State in private controversies could and 
 would at first occur only where the injurious act was evident 
 and its consequences grave, and hence the field of actionable 
 wrongs was limited to those in which the right of the injured 
 party was apparent and its invasion by the wrongful act of 
 the defendant could be easily established. Wrongs committed 
 by violence against person and property were of this charac- 
 ter; acts and omissions producing loss, not as their immediate 
 result but through new causes which they set in operation, 
 were not; and of the latter the courts for a long period as- 
 sumed no jurisdiction. But when the statute of A. D. 1285 
 compelled the courts to notice and adjust the controversies 
 growing out of consequential injuries, the number of these 
 actionable wrongs was vastly multiplied and the Law of Torts 
 expanded to take in slander and libel and malicious prosecu-
 
 § 394 THE DEPARTMENTS OF LAW. 357 
 
 tion, all wrongful usurpations of dominion over property, and 
 every form and degree of negligence liy which a legal damage 
 to another party can be caused. The scope of the Law of 
 Torts has thus been determined by the law of civil actions, 
 and still enlarges or contracts with the limits to which for the 
 time being the State confines the jurisdiction of its courts. 
 
 § 394. Of the Law of Domestic Relations. 
 
 The Law of Domestic Relations is that group of rules which 
 defines the rights and obligations of the parties to the rela- 
 tions of husband and wife, parent and child, guardian and 
 ward, and master and servant. In the period when the fam- 
 ily was the ultimate unit of society and the housefather exer- 
 cised almost supreme control over his wife and children, wards 
 and servants, being himself responsible to the community for 
 their misconduct and support, the sphere of these rules was 
 confined almost exclusively to the privileges and duties which 
 the headship of his family devolved upon the father in refer- 
 ence to third parties. The rights of the husband to the soci- 
 ety of his wife, of the father to the presence and services of 
 his children, of the guardian to the custody of his ward, of the 
 master to the labor of his servant, as against all abductors, as- 
 sailants, and seducers, and the corresponding obligation to 
 compensate all persons who had suffered actionable wrongs 
 through his failure to maintain and properly control them, 
 constituted the greater portion of this law until within the 
 past three generations. Social development has, however, 
 given to this branch of the law, as to most others, a wider 
 field and more numerous details, and the internal rights and 
 duties of the parties to the relation toward one another have 
 thus at last obtained some recognition from the law. The 
 appointment of guardians by the courts or by the wills of de- 
 ceased persons under the supervision of the courts, the estab- 
 lishment of the relation of master and servant by specific 
 contracts, the emancipation of the personality of the wife 
 from its entire submergence in thai of Hie husband, have
 
 358 AMERICAN JURISPRUDENCE. §§395,396 
 
 been among the causes of this change, and account for many 
 of the differences which appear between the statements of the 
 law contained in the earlier treatises and those of the present 
 day. 
 
 § 395. Of the Law of Personal Property. 
 
 The Law of Personal Property is a title applied to a selec- 
 tion from the numerous groups of rules relating to all prop- 
 erty that is not real. Personal property is of such great variety, 
 and is so involved in all the affairs of life, that any statement 
 of all the rules which govern it would necessarily include the 
 law of contracts, the law of crimes, the law of civil actions, 
 the law of torts, and every other branch of law except the 
 single one pertaining to real property. But a discussion of 
 the essential characteristics of personal property, an enumera- 
 tion and description of the various classes into which it is 
 divided and of the different species of objects comprised 
 within each class, a general outline of the methods of its crea- 
 tion, use and transfer with the rules which govern them, and 
 a definition of the wrongs to which it is susceptible and the 
 modes in which such wrongs may be redressed, are practicable 
 apart from other details of the subject, and of these the 
 treatises upon the Law of Personal Property are usually 
 composed. To this branch of the law also belong all such 
 subordinate departments as the Law of Shipping, or the Law 
 of Patents, Copyrights, and Trademarks, with the exception of 
 their contract aspects which fall more properly under a differ- 
 ent division of the law. 
 
 § 396. Of the Law of Estates. 
 
 The Law of Estates is a name given to a group of rules 
 governing the administration of property under the supervi- 
 sion of the courts by a person not its owner "in the interest of 
 other persons who are lawfully entitled to its benefits. It em- 
 braces many subdivisions, such as the law of guardians of 
 estates whether of infants or incapables, the law of decedents'
 
 § 397 THE DEPARTMENTS OF LAW. 359 
 
 estates whether testate or intestate, the law of trusts whether 
 private or charitable, the law of insolvents' estates, and the 
 law of receivers. In all these cases, while the rights of the 
 beneficiaries are determined by the laws of real or personal 
 property, or the laws of contracts, equity, or corporations, as 
 the case may be, the general duties of the persons charged 
 with the administration of the property are practically the 
 same, consisting in the collection, custody, sale, or investment 
 of the assets and the payment of the income or the principal 
 to the parties who may be entitled to receive it. In each of 
 these duties the details vary with the character of the estate 
 and the subordinate divisions of the law under which it is to 
 be administered, as well as with the tribunals by whom the ad- 
 ministrators are appointed or confirmed, under whose direction 
 they perform their official duties, to whom their accounts are 
 rendered, and on whose records a recital of their action is pre- 
 served. This branch of our law is not yet adequately repre- 
 sented in our legal literature as a distinct department, its 
 rules being still scattered through the treatises on real prop- 
 erty, wills, domestic relations, personal property, equity, cor- 
 porations, and contracts, though long since meriting a separate 
 investigation and discussion. 
 
 § 397. Of the Law of Contracts. 
 
 The Law of Contracts is a body of law composed of many 
 subordinate groups of rules, and in its vast scope and almost 
 supreme importance is of very recent origin. Agreements of 
 various kinds between one person and another have, of course, 
 been frequent ever since society has itself existed. But in 
 our legal history the \&\v concerning them assumed no great 
 proportions until within the past three bundled years. Under 
 the feudal system, whether of the Saxon or the Xorman period, 
 contracts concerning land were rare, were confined mainly to the 
 cities, and when existing were enforced rather by forfeitures 
 between the parties than by decisions of the courts. Personal 
 property consisted principally of cattle, agricultural imple-
 
 360 AMERICAN JURISPRUDENCE. § 398 
 
 merits, wearing apparel, weapons of war or of the chase, and 
 household furniture, except for the commodities involved in 
 trade, contracts concerning which followed the special cus- 
 toms of the merchants and when disputed were settled in their 
 local guilds. Thus the law of contracts remained for many- 
 ages in a comparatively inferior condition, and received slight 
 attention from the English jurists. But when the discoveries 
 in the East and West opened up new worlds to British naviga- 
 tors with the consequent extension of commerce and increase 
 of trade, when the customs of merchants began to be recog- 
 nized and adopted by the courts as part of the common law, 
 when the awakening of inventive genius gave a resistless im- 
 pulse to the development of manufactures and the creation of 
 private business corporations, when contract relations were 
 spontaneously substituted for all others as far as possible in 
 church and State, the Law of Contracts sprang into great im- 
 portance and now overshadows all the other branches of the 
 law. Logically as well as practically this law divides into 
 two lesser groups : (1) The Law of Contracts in General, com- 
 prising all the rules defining the nature, essential elements, 
 and legal consequences of a contract as such ; (2) The Laws 
 of Particular Contracts, each of which differs from the others 
 according to the subject-matter to which it relates. This 
 second minor group includes the law of Sales, the law of Bail- 
 ments, the law of Agency, the law of Partnership, the law of 
 Insurance, the law of Bills and Promissory Notes, and the law 
 of Guaranty and Suretyship. 
 
 § 398. Of the Law of Corporations. 
 
 The Law of Corporations is the group of rules by which the 
 organization of corporate bodies and the management of cor- 
 porate affairs, both public and private, are controlled. Elee- 
 mosynary corporations have long been known to our law, but 
 public corporations and private business corporations with the 
 laws which regulate them are almost entirely the product of 
 the past three centuries. In our own age these artificial per-
 
 § 399 THE DEPARTMENTS OF LAW. 361 
 
 sons have been multiplied beyond all computation. The local 
 government of nearly every great centre of population has 
 been confided to their charge, while the property interest 
 which they represent is often stated to outvalue all other 
 property within the jurisdiction of our laws. That in elaborat- 
 ing the rules directing these momentous enterprises the wis- 
 dom and sagacity of the great lawyers of the present day find 
 constant occupation, and that their labors have produced and 
 are still steadily improving the branch of the law to which 
 those rules belong, would alone be sufficient, were all other 
 causes wanting, to give the Law of Corporations one of the 
 highest and most prominent positions among the practical di- 
 visions of our modern law. 
 
 § 399. Of the Law of Equity. 
 
 The Law of Equity, being a law of remedies for private 
 wrongs, is essentially a subdivision of the law of civil actions, 
 and might logically be treated in connection with the rules 
 which govern suits at common law. But as it had a separate 
 origin, a separate history, a separate literature, and generally 
 has been administered by separate tribunals, it has acquired a 
 place of its own in our legal system from which it is not 
 likely, in any proximate future, to be dislodged. Moreover, 
 by the application of its remedies it has brought into view so 
 many new aspects of existing legal rights, which courts of 
 common law because they could not enforce them were accus- 
 tomed to ignore, as to have added largely to the rules which 
 enter into our substantive law. It is the province of Equity 
 Jurisprudence, as this branch of the law is sometimes called, 
 to define these new aspects of legal rights with their corre- 
 sponding duties, to describe the injuries to which they are 
 liable, and to point out the relief, preventive or remedial, 
 which the courts of equity can furnish and the procedure by 
 which such relief can be obtained. The Law of Equity Plead- 
 ing and Practice comprises the rules which govern the parties 
 in seeking and the court in awarding the appropriate redress.
 
 362 AMERICAN JURISPRUDENCE. §§400,401 
 
 § 400. Of the Law of Admiralty. 
 
 The Law of Admiralty is, like the law of equity, a branch 
 of law both substantive and adjective, defining rights, describ- 
 ing wrongs, applying remedies. Although it shares one por- 
 tion of its field with the law of torts, another with the law of 
 contracts, and still another with the law of civil actions, that 
 residue which is peculiarly its own embraces many of the most 
 important rules which govern commerce on the sea. Among 
 these are the laws which regulate those reciprocal relations 
 between the owner, master, crew, and passengers arising from 
 the nature of marine transportation ; the doctrine of maritime 
 liens in all their various phases; and that procedures rem 
 against the vessel and her cargo which alone renders the en- 
 forcement of commercial obligations possible. These features 
 of the Law of Admiralty, together with its international au- 
 thority, must always make it a separate as well as indispen- 
 sable department of our law. 
 
 § 401. Of Constitutional Law. 
 
 Constitutional Law as a distinct group of rules defining the 
 nature of the State, and asserting the mutual obligations of 
 itself and its own citizens, occupies the same position in the 
 practical as in the logical divisions of the law. But as the 
 final test of the validity of both the Written and Unwritten 
 Laws, it enters into every other group of rules to be their con- 
 firmation if they agree with its provisions, their destruction if 
 they exceed or contradict it ; and thus it permeates the entire 
 body of the law like the vital force which animates the 
 sound, heals the diseased, and purges away the dead portions 
 of the human frame. In this aspect Constitutional Law 
 becomes a subject of investigation whenever any portion of 
 the law is studied, and every decision which sustains a contro- 
 verted rule adds another to its numberless precedents and ex- 
 tends still more widely its conservative authority. As a 
 distinct group of rules it has been the subject of constant re- 
 search and exposition ever since the independence of this
 
 § 402 THE DEPARTMENTS OF LAW. 363 
 
 country was assured. Treatises of the highest merit have 
 discussed the various clauses of the Federal Constitution ; to 
 its interpretation the most elaborate and profound decisions of 
 our greatest judges have been devoted; and still the wealth of 
 legal doctrine which it holds is not exhausted, nor does a con- 
 stitutional question, however difficult or novel, go without 
 reply. The Constitutions of the several States have been sub- 
 jected to a similar scrutiny though in a less degree, each State 
 accumulating for itself by multiplied decisions of the courts a 
 local Constitutional Law. In this field of research there is 
 room for even more extended efforts, particularly in the com- 
 parative analysis of the State Constitutions and their reduc- 
 tion to a body of homogeneous Constitutional Law. 
 
 § 402. Of International Law. 
 
 International Law, like Constitutional Law, is both a sepa- 
 rate division of the law, and a legal energy pervading many 
 other departments of the law. In its former character it is 
 logically and practically the same; in its latter character, es- 
 pecially through treaties and the laws of war and the restric- 
 tions placed upon belligerents and neutrals, it affects the 
 personal liberty, the commercial privileges, the property rights 
 and contract obligations of the private citizen. As intercourse 
 between the subjects of the family of nations grows more in- 
 timate and varied, and their relationships by marriage or by 
 community of interests become so close that scarcely any dif- 
 ference except that of political allegiance subsists between 
 them, the influence of International Law upon their happiness 
 and welfare must increase until it may perhaps become a fac- 
 tor in the private lives of individuals only less potent and 
 universal than Constitutional Law itself. Hence the doctrine 
 that International Law forms a part of every National law is 
 no mere abstract proposition but a practical truth of the grav- 
 est import, imposing on every lawyer, who assumes to under- 
 stand and to defend and vindicate the rights of private 
 citizens, the duty of acquiring a knowledge of this depart-
 
 364 AMERICAN JURISPRUDENCE. § 402 
 
 rnent of the law so far at least as it can qualify individual 
 privileges and obligations. There is no dearth of learning on 
 this subject, accessible in treatises, decisions, public documents, 
 examples ; and in the rapid movements of the nations and the 
 interplay of vast world-forces there is every day some new 
 object-lesson in which the vigilant student may discern the 
 application of great principles long familiar to his mind, or the 
 enunciation and enforcement of new doctrines which new con- 
 ditions make it necessary to incorporate into the body of our 
 International Law.
 
 INDEX. 
 
 REFERENCES ARE TO PARAGRAPHS. 
 
 Accounting, in equity 326 
 
 Act, defined 136 
 
 Act of Settlement 246 
 
 Acts and Forbearances 136 
 
 Actions, commenced by writ 318 
 
 Actions, Civil, Law of 390 
 
 Adequate Remedy at Law 325 
 
 Adjective Law 163-165 
 
 Administrative Law 178 
 
 Administration, of Intestate Estates 332, 337 
 
 Administrators 337 
 
 Admiralty Courts. (See Courts of Admiralty) . . . 340-347 
 jurisdiction in United States . . 347, 356 
 
 England ; !17 
 
 Admiralty, Law of 12, 400 
 
 Affirmative Statutes 268, 280 
 
 Agents of Corporations 75, 91 
 
 Alfred, King, Dom-Boc of 233 
 
 Aliens, status of 61, 62 
 
 rights and duties of . 61 
 
 modern views of 62 
 
 property descends to whom 62 
 
 Amalpiiitan Table 341 
 
 Ambassadors, exemptions of ........... 
 
 AMERICAN Law. (See Law divisions of, American) . . 184-190 
 
 Analogous Cases, value of decisions in 287 
 
 Ancillary Jurisdiction of Probate Courts .... 835 
 
 Appellate Courts 314 
 
 Artificial Person, denned 16 
 
 Associations, UNINCORPORATED 87
 
 306 INDEX. 
 
 Attachment for Contempt, in equity 329 
 
 Aula Regis . 317 
 
 Awards, enforcement and abrogation of, in equity .... 326 
 
 Belligerents, law of 174 
 
 Bill of Rights 246, 251 
 
 Blackstoxe's Commentaries 233 
 
 Bracton's Laws and Customs of England 233 
 
 Breach of Contract 143, 144 
 
 Bridges, liability of public corporation for 109 
 
 Britton 233 
 
 By-Laws, of Private Corporations 90, 282 
 
 Public Corporations 107, 282 
 
 Canon Law, recognized by State 13 
 
 Capacity, governed by lex ligeantice 196 
 
 domicilii 197 
 
 loci actus ..." 199 
 
 Cases, study of law in the 160 
 
 Causes, removal from State to Federal courts 363 
 
 Chancellor, office of 322, 323 
 
 Changes in Law, effect of 204-210, 273, 277 
 
 on completed transactions 205, 209, 273, 
 
 277 
 on vested rights of property 206, 209, 
 
 273, 277 
 on contract obligations 207, 209, 273, 277 
 on incompleted transactions 205, 273, 277 
 on expectant or contingent rights . 206, 
 
 273, 277 
 
 Charitable Corporations, are trustees 93 
 
 Charter of Corporation, how granted 72 
 
 construed 73 
 
 limits corporate powers .... 73 
 
 Charter-Parties, in admiralty jurisdiction 314 
 
 Child. (See Infant) 25-31 
 
 Child, Unborn, rights of 17 
 
 Christian Names 21 
 
 Church Law, recognized by State 13 
 
 Circuit Courts, of the United States 355 
 
 Circuit Courts of Appeals 354 
 
 Citizens, defined 54
 
 INDEX. 307 
 
 Citizens, status of 54-60 
 
 rights and duties of 58-60 
 
 belong to one State only 54 
 
 State may admit or exclude 55 
 
 by birth or adoption 56 
 
 by naturalization 56 
 
 of United States, who are 56 
 
 of States of American Union 57 
 
 political rights of 5 s . 12 : l 
 
 personal rights of 59, 123 
 
 duties of 60 
 
 protection of by State 59 
 
 Citizenship, of wives, infants, residents, etc 56, 57 
 
 of inhabitants of new territory 56 
 
 of United States and States not identical ... 57 
 transfer of, from one State to another ... 55, 57 
 
 Civil Actions, Law of 390 
 
 Civil Law, defined 10, 162, 189 
 
 when codified 162 
 
 authority of in Louisiana 189 
 
 Claims, Court of :>57 
 
 Codes, defined 261 
 
 legal importance of 262 
 
 not suited to progressive States 262 
 
 Coercion defined 44 
 
 (See Duress) 44, 45 
 
 Coke, Sir Edward, Institutes of 233 
 
 Collision, cases of in admiralty jurisdiction 344 
 
 Colonies, American, force of English law in 184 
 
 Combination ok Cokporations. (See Corporations) ... SI 
 
 Comity of States 191,203 
 
 subject to local law 203 
 
 Common Law, defined 10 
 
 different meanings of the name 11 
 
 in the United States 15, 226 
 
 Courts of 317-321 
 
 Reports 234 
 
 Commutation of Punishment 117 
 
 Condonation of Wrongs 117 
 
 Confessor, Laws of Edward the 233 
 
 Conflict of Laws. (See Jurisdiction of Laws) . . 177,191-210 
 
 CONSOLATO DEL MAKE 341
 
 368 INDEX. 
 
 Consolidation of Corporations. (See Corporations) . . 81 
 
 Constitutional Convention 241 
 
 Constitutional Law 178, 401 
 
 Constitutionality of Treaties, Statutes, etc. . 253, 274-278 
 
 Constitution 239, 240, 253 
 
 nature of 240 
 
 written or unwritten 239, 240 
 
 preparation and adoption of 241 
 
 contents of 242 
 
 when takes effect 243 
 
 presumed to be prospective only 244 
 
 amendment of 245 
 
 a " limitation of powers " 240 
 
 a " grant of powers " 240 
 
 history of English and American "246 
 
 of United States, nature of 249 
 
 supremacy of 250 
 
 a " grant of powers "... 249 
 
 contents of 251 
 
 interpreted by Unwritten 
 
 Laws 252 
 
 controls treaties and statutes 253 
 
 of States of the Union, nature of . . . 247, 248 
 
 written and unwritten . 247, 
 
 248 
 
 contents of 251 
 
 how interpreted . . . 252 
 
 a " limitation of powers " 240, 
 
 247 
 
 Contempt of Court 309 
 
 attachment for in equity 329 
 
 Context of Statute, interpretative value of 296 
 
 Contract, breach of 143, 144 
 
 obligation of 207 
 
 not affected by change of laws 207, 209, 273, 
 
 277 
 
 Contracts, Law of 397 
 
 of infants 27, 28 
 
 void or voidable 27 
 
 ratification of voidable 27, 28 
 
 for necessaries 27, 28 
 
 of insane persons 35, 40
 
 INDEX. 369 
 
 Contracts of married women 42, 43 
 
 of persons under duress 45 
 
 of corporations 75, 76 
 
 governed by lex loci contractus 200 
 
 solutionis 201 
 
 pacti 202 
 
 maritime 342, 344 
 
 specific performance in equity 325, 320 
 
 Contractual Rights 128 
 
 Coram non Judice 310 
 
 Corporations 16,71-112 
 
 defined 16 
 
 Law of 398 
 
 nature of 71 
 
 necessity for 71 
 
 created by State 72 
 
 by special charter or general statute . . 72 
 
 charter of 73 
 
 how construed 73 
 
 franchises of 74 
 
 transfer of 74 
 
 powers of 74 
 
 officers and agents of 7"> 
 
 corporate liability for . . 75 
 
 acts Ultra Vires defined 76 
 
 invalid 76 
 
 name and identity of 77 
 
 seal of 77 
 
 status of 78 
 
 cannot inherit or have heirs 78 
 
 suffer corporal punishment 78 
 
 crimes of 78, 00 
 
 have a reputation to vindicate 78 
 
 no two have same status 78 
 
 domicile or citizenship of 7!* 
 
 act in other States by comity ~U 
 
 by agents only 7!» 
 
 act as an entirety only in domicile 79 
 
 control of State over 30 
 
 charter a contract not to be impaired .... 80 
 
 how far amendable by State .... 80 
 
 franchises and property subject to eminent domain 80 
 24
 
 370 INDEX. 
 
 Corporations, combination or consolidation of 81 
 
 effect on rights 
 
 and liabilities 81 
 
 dissolution of S2 
 
 effect on property rights ... 82 
 
 receivership after 82 
 
 personality distinct from members • 83 
 
 acts of members not acts of corporation ... 83 
 
 notice to members not notice to corporation . 83 
 
 DeJure 84 
 
 De Facto 85 
 
 Quasi 86 
 
 Sole and Aggregate 88 
 
 Public, Private, and Quasi Public 89 
 
 Private . 90-99 
 
 attributes of 90 
 
 organization of 91 
 
 officers of 91 
 
 promoters of 91 
 
 management of 91 
 
 officers are trustees for 91 
 
 powers of 92 
 
 cannot be enlarged by other 
 
 States 92 
 
 Civil 94 
 
 Eleemosynary ....... 93, 94 
 
 Stock 95-99 
 
 organization of 95 
 
 shares of stock 96 
 
 rights of stockholders . . . 96,99 
 
 liabilities of stockholders ... 97 
 
 ownership and transfer of stock . 98 
 
 Quasi Public 100-105 
 
 franchises of 100 
 
 right to occupy public 
 
 property . . 101 
 of eminent do- 
 main . . . 102 
 of taxation . . 102 
 to a monopoly . 103 
 to take tolls . 104 
 oontrol of State over 105
 
 INDEX. 371 
 
 Corporations, Public 106-111 
 
 nature, powers, and property of . . . 106 
 
 charter when presumed 106 
 
 may have private corporate powers . . 106 
 
 cannot issue commercial paper . . . 106 
 
 taxing power of 106 
 
 power to incur debts 106 
 
 courts may prevent extravagance of . . 106 
 legislative powers of .... 107,264 282 
 
 by-laws when valid 107 
 
 jurisdiction of over strangers . 107 
 
 administrative powers of 108 
 
 when judicial . 108 
 when ministe- 
 rial . . . 108 
 not liable for exercise of judicial powers 108 
 liable for exercise of ministerial powers 108 
 liability for streets, grading, repair, etc. 109 
 for sewers, building, repair, etc. 109 
 for bridges, health regulations . 109 
 
 for public officers 110 
 
 for corporate officers .... 110 
 
 for private agents 110 
 
 officers of, classes and degrees . . . . HO 
 
 control of State over HI 
 
 States are -i\o 
 
 CovRT * ■ '.'.'.'.'. ."305-364 
 
 nature of o () r 
 
 consist of whom oqk 
 
 how created oq- 
 
 when able to act ->«.- 
 
 antiquity of 30 5 
 
 make laws . j™ 
 
 interpret laws aq 
 
 apply laws ! 304 
 
 decide questions of constitutionality 073 
 
 jurisdiction of, over persons 306 
 
 subjects-matter 306, 307 
 
 by consent of parties 31 n; 
 
 not by fictitious change in subject . . 307 
 
 outside State directly 307 
 
 outside State indirectly 308
 
 872 INDEX. 
 
 Courts, jurisdiction of, over what actions 308 
 
 presumed after judgment 308 
 
 inherent power to appoint officers 309 
 
 make rules of practice 309 
 
 keep and amend records .... 309 
 
 preserve order 309 
 
 enforce decrees 309 
 
 punish contempts 309 
 
 contempt of . . 309 
 
 terms or sessions of 310 
 
 proceedings of 311 
 
 judgments of, when final 311 
 
 merge original claim 311 
 
 conclusive when and where 311 
 
 when collaterally attacked 311 
 
 of United States and sister States . . . 311 
 
 authority of, as precedents . . . 286, 287 
 
 of record and not of record 312 
 
 superior and inferior jurisdiction 313 
 
 general and limited jurisdiction 313 
 
 appellate, civil, criminal, provisional 314 
 
 take cognizance of what controversies 315 
 
 parties to suits in 315 
 
 course of procedure in 315 
 
 systems of 316 
 
 of Common Law 317-321 
 
 origin of 317 
 
 topical jurisdiction of 318 
 
 procedure in, by original writ . . . 318 
 narrow field of jurisdiction . . . 318-321 
 
 parties to suits in 319 
 
 redress obtainable in 320 
 
 limitations of relief by 321 
 
 of Equity 322-331 
 
 origin of 322 
 
 necessity for 322 
 
 development of •. . . 323 
 
 scope of redress in 323-325 
 
 conflict of, with courts of common law . . . 324 
 
 test of jurisdiction of 325 
 
 topical jurisdiction of 325, 326 
 
 indirect jurisdiction of 327
 
 INDEX. 373 
 
 Courts, of Equity will settle entire controversy 327 
 
 no jurisdiction over crimes 328 
 
 follow the law of rights 328 
 
 limits of jurisdiction 328 
 
 proceedings in 329 
 
 jurisdiction over infants and incapables . . 330 
 
 merger of, with courts of common law . . . 331 
 merger of, with courts of common law impos~ 
 
 sible as to Federal courts 331 
 
 of Probate 332-339 
 
 nature and origin of 332 
 
 in the United States 333 
 
 ordinary and special jurisdiction of . . . 334 
 
 primary and ancillary jurisdiction of . . . 335 
 
 jurisdiction over testate estates 336 
 
 intestate estates .... 337 
 
 guardians and trustees . . 338 
 
 importance of 339 
 
 of Admiralty 310-347 
 
 necessity for 340 
 
 origin and development of 341 
 
 history of jurisdiction of :',41 
 
 subjects-matter within jurisdiction of . 342-344 
 
 waters within jurisdiction of 342 
 
 concurrent jurisdiction with courts of law 
 
 and equity 343 
 
 controversies within jurisdiction of . . . 344 
 
 jurisdiction in rem 345 
 
 conclusiveness of judgments in rem . . . 345 
 
 proceedings in 346 
 
 in England and the United States . . . 347 
 
 of Extraordinary Jurisdiction 348, 351 
 
 Courts Martial 349 
 
 Military .... 350 
 
 Provisional :i">l 
 
 Federal 352-364 
 
 jurisdiction of 352 
 
 common law ami equity powers of ... 359 
 
 limited topical jurisdiction of 360 
 
 territorial jurisdiction of 361 
 
 concurrent jurisdiction with State courts . . 358 
 
 Supreme Court of the United States . . . 353
 
 374 INDEX. 
 
 Courts, Federal, Circuit Court of Appeals 354 
 
 Circuit Courts 355 
 
 District Courts 356 
 
 Court of Claims 357 
 
 Courts of the District of Columbia .... 357 
 
 follow State interpretation of State laws . . 183 
 
 State and Territorial 362 
 
 follow Federal interpretation of 
 
 Federal laws 183 
 
 concurrent jurisdiction with Fed- 
 eral courts 358 
 
 error and removal of causes from 
 
 to Federal courts .... 363 
 
 Federal and State, future development of .... 364 
 
 Creditors of Corporation, rights against stockholders . . 97 
 
 Crimes defined . 141 
 
 how prosecuted and punished 141 
 
 Law of 392 
 
 include act and intent 30 
 
 specific intent in 30 
 
 of infants 30 
 
 of insane persons 38 
 
 of corporations 78, 90 
 
 no adequate compensatory remedy for 151 
 
 preventive remedies for 153 
 
 Criminal Procedure, Law of 178, 392 
 
 Curative Laws 205, 273-277 
 
 Customary Law. (See Common Law; Law, forms of, Un- 
 written) 216-235 
 
 Customs, nature, origin, and obligation of 217 
 
 how enforced 218 
 
 transmutation into retrospective law 219 
 
 into prospective law 220 
 
 what are entitled to judicial sanction 221 
 
 immemorial 221 
 
 continued 221 
 
 peaceable 221 
 
 reasonable 221 
 
 certain , 221 
 
 compulsory 221 
 
 consistent with other customs 221 
 
 ancient 222
 
 INDEX. 375 
 
 Customs modern 223 
 
 may change law 221 
 
 may interpret law 289, 299 
 
 Damages, in money an adequate compensation for wrongs . . 152 
 
 Damnum 142 
 
 absque injuria 142 
 
 Day, the legal unit of time 383 
 
 law knows no fractions of 25, 383 
 
 Death, when presumed 18, 382 
 
 civil, unknown to American law 18 
 
 supposed, but not actual, no effect on rights .... 18 
 
 Decisions. (See Judicial Decisions) 231, 285-288 
 
 Declaratory Statute 268 
 
 Decrees in Equity, how enforced 329 
 
 Deed, informalities in, how cured 205 
 
 De Facto Corporations 85 
 
 De Facto Officers. (See Officers, de facto) 49 
 
 Definitions, descriptive and prescriptive 230 
 
 of the Unwritten Law 230 
 
 De Jure Corporations 84 
 
 De Jure Officers 49 
 
 Demurrage, cases of in admiralty jurisdiction 344 
 
 Descriptive Names of Persons 21 
 
 Dialogus de Scaccario 233 
 
 Directory Statute 272 
 
 Disclosure in Equity 325, 326, 327 
 
 Dissolution of Corporations. (See Corporations, Dissolution) 
 
 82,90 
 
 District Courts of the United States 356 
 
 District of Columbia, courts of 357 
 
 Divine Law 5 
 
 Divorce 41 
 
 Doctor and Student 283 
 
 Dom-Boc of King Alfred 233 
 
 Domesday Book 283 
 
 Domestic Relations, Law of 394 
 
 Domicile 60-70, 79, 92, l'.<7 
 
 defined 66 
 
 locality of 67 
 
 change of 69 
 
 of origin
 
 376 INDEX. 
 
 Domicile distinguished from residence 66 
 
 tests of 66, 69 
 
 of wives, widows, infants, wards 68 
 
 of corporations 79, 92 
 
 law of. (See Lex Domicilii) 70, 197 
 
 Drunkenness, not insanity at law 34 
 
 no excuse for crime 34, 38 
 
 may cause insanity 34, 38 
 
 Duress, defined 44 
 
 status of persons under 44, 45 
 
 avoids contracts 45 
 
 may relieve from criminal liability 45 
 
 poverty or danger is not 45 
 
 Duties, nature of 132 
 
 legal, correspond to legal rights 133 
 
 classes of 134 
 
 relation of to status „ 135 
 
 comprise acts and forbearances . 136 
 
 positive and negative 136, 137, 139 
 
 extinguishment of 13S 
 
 of citizens 60 
 
 prescribed by State „ . 133 
 
 when and how defined by law 156-161 
 
 Ecclesiastical Courts, no civil jurisdiction in United States 333 
 
 Ecclesiastical Law 13, 178 
 
 Egypt, Laws of 162 
 
 Eleemosynary Corporations 94 
 
 Eminent Domain 102 
 
 Enacting Clause of Statute 266 
 
 Enforcing Judgments at Law, in Courts of Equity . . . 326 
 
 English Decisions, of what authority in the United States . 188 
 
 English Law. (See Law, divisions of, English) .... 184-190 
 
 presumed of force in all States of Union . . . 212 
 
 history of 224 
 
 Enlarging Statute 268 
 
 Equality before the Law 23 
 
 Equity, Courts of. (See Courts of Equity) 322-331 
 
 control over infants and incapables . 26, 40, 330 
 jurisdiction over property of infants . . 26, 31 
 
 follow the rules of law 32S 
 
 determine case as a whole 327
 
 INDEX. 377 
 
 Equity, Law of 399 
 
 Error. Writ of, from State to Federal Courts 363 
 
 Estates, Intestate, settled in probate courts 337 
 
 Testate, settled in probate courts 336 
 
 Law of 396 
 
 Eternal Law 2 
 
 pervades all valid human laws 6, 7 
 
 Evidence, Law of 391 
 
 Exceptions in Statutes 266 
 
 Exchequer, Court of 317 
 
 Executive Acts, when valid . . . . • 8 
 
 Expatriation, Right of 55, 57 
 
 Ex Post Facto Laws 208, 273, 277, 280 
 
 Family of Nations 173 
 
 Family Rights 127. 128, 176 
 
 Federal Constitution. (See Constitution of United States), 240, 
 
 249-253 
 
 based on English Law 189 
 
 Federal Courts. (See Courts, Federal) 352-3G4 
 
 independent of State law 360 
 
 follow local interpretation of State law . . 183 
 
 concurrent jurisdiction with State Courts . 358 
 
 Federal Law. (See Law, divisions of, Federal) .... 179-183 
 
 Fictions and Presumptions 365-387 
 
 field of 365 
 
 necessity for 366 
 
 related to Law of Evidence . . . 387 
 
 Fictions of Law 367-072 
 
 nature of 367 
 
 reasons for adopting 367 
 
 falsity of the facts assumed 368 
 
 possibility of the facts assumed 368 
 
 subordinated to justice 369 
 
 substitutes for legislation 370 
 
 law extended by 370 
 
 classes of 371 
 
 affirmative and negative .... 371 
 substantive and relative . ■ . . '■'•7\ 
 
 invention and abandonment of 372 
 
 number of 372 
 
 distinguished from presumptions .... 373
 
 378 INDEX. 
 
 Fiduciary Rights , . . 128 
 
 Finality, in the Interpretation of Unwritten Law 292 
 
 Fitzherbekt's Abridgment 233 
 
 Fitzherbert's Natura Brevium 233 
 
 FitzXigel's Dialogue of the Exchequer 233 
 
 Fleta 233 
 
 Forbearances 136 
 
 Forfeiture of Rights 131, 138 
 
 Forfeitures and Penalties, relief in equity 320 
 
 Fori Lex. (See Lex Fori) 194, 195 
 
 Forms of Law 214-282 
 
 Fortescue's De Laudibus Legum Anglic 233 
 
 Franchises defined 74 
 
 of corporations 74 
 
 of quasi public corporations 100-104 
 
 not transferable without leave of State .... 74 
 
 Fraud, right to immunity from 127 
 
 relief against in equity 326 
 
 General Statute 270 
 
 Glanville's Laws and Customs of England 233 
 
 Grant of Powers, Federal Constitution is .... 240, 249 
 
 Guardian ad litem, of infants . . ■ 31 
 
 of property of infants 26 
 
 of insane persons and incapables 40 
 
 probate jurisdiction over 338 
 
 Habeas Corpus Act 246 
 
 Hale's History of Law, etc 233 
 
 High Seas, jurisdiction over 12 
 
 Horse's Mirrour of Justices 233 
 
 Human Being, existence begins and ends wheD .... 17, 18 
 
 Human Law, denned 6 
 
 derived from eternal law 6, 7 
 
 when valid 8 
 
 Husband, liability for acts and support of wife 42, 43 
 
 rights over person and property of wife .... 42, 43 
 
 Idem Sonans . . . . o 20 
 
 Idiots 32 
 
 Illegitimate Children, custody of 26 
 
 Impeachment of Public Officers 52
 
 INDEX. 379 
 
 Incapable s, guardianship of 40 
 
 jurisdiction of equity over 330 
 
 Indians, status of 63 
 
 Infants, status of 25-31 
 
 defined 25 
 
 when become adults 25 
 
 domicile of 68 
 
 disabilities of, fixed by law of domicile 25 
 
 not removed by emancipation .... 25 
 
 by marriage 25 
 
 by his own act .... 25 
 
 ■who may take advantage of ... . 25 
 
 all persons have notice of . . . . 25, 28 
 
 control over their own persons and property .... 26 
 
 vests in State primarily 26 
 
 exercised through courts of equity . 26, 330 
 
 resides in father . , 26 
 
 mother 26 
 
 guardian 26 
 
 how transferred by parent to others . 26 
 adoption .... 26 
 
 property of, parent no control over 26 
 
 vests in guardian 26 
 
 power to marry 26 
 
 to do acts beneficial to themselves 26 
 
 to enlist in army or navy 26 
 
 to make a will 26 
 
 to contract 27, 28 
 
 for necessaries 27, 28 
 
 to act as agent or attorney 28 
 
 to appoint agents or attorneys 2S 
 
 contracts of 27, 28 
 
 void or voidable 27 
 
 ratification of 27. 28 
 
 repudiation of 27. 28 
 
 for services and wages 28 
 
 for apprenticeship 28 
 
 of partnership 28 
 
 of agency 28 
 
 for the sale of personal property ... 28 
 
 of real property 28 
 
 revocation by privies 28
 
 380 INDEX. 
 
 Infants, liability for torts 29 
 
 not if involve contracts 29 
 
 for crimes 30 
 
 must sue by guardian or next friend 31 
 
 defendants must have guardian ad litem 31 
 
 must sue and be sued in their own names .... 31 
 
 parol demur of 31 
 
 judgment against, without guardian, voidable ... 31 
 
 decrees of equity as to property of 31 
 
 cannot estop themselves from asserting infancy . . 31 
 
 Injunctions in Equity 154, 326 
 
 against public officers 52 
 
 Injuria 142 
 
 sine damno 142 
 
 In Personam, rights 125, 128, 130 
 
 Inquisition of Lunacy 40 
 
 In Rem, proceedings in admiralty 345 
 
 In Rem Rights 125, 127, 120 
 
 Insane Persons, status of 32-40 
 
 defined 32 
 
 include idiots and lunatics 32 
 
 varieties of 33 
 
 compared with infants 35 
 
 contracts of 35 
 
 wills of 36 
 
 torts of 37 
 
 crimes of 38 
 
 how to sue and be sued 39 
 
 attorneys and guardians ad litem of ... . 39 
 
 when may testify 39 
 
 guardianship of 40, 330 
 
 Insanity defined 32 
 
 varieties and degrees of 32, 33 
 
 how proved 34 
 
 burden of proof of 34 
 
 in criminal cases 38 
 
 resulting from drunkenness 34 
 
 drunkenness is not, in law 34 
 
 Insurance, Marine, in admiralty jurisdiction 344 
 
 Intent, Legislative, as interpreting law 300 
 
 International Law. (See Law, divisions of, International.) . 11, 
 
 171-174, 402
 
 INDEX. 381 
 
 Interpretation of Law. (See Law, Interpretation of) 283—303 
 
 of Unwritten Law 284-292 
 
 of Written Law 293-303 
 
 Interstate Comity 191, 203 
 
 Intervenors in Admiralty . 346 
 
 Judgments, final, conclusiveness of 311 
 
 not collaterally attacked 311 
 
 of sister States 311 
 
 how enforced in equity 326 
 
 how relieved against in equity 326 
 
 against infant, voidable without guardian ... 31 
 
 Judicial Act, when valid 8 
 
 Judicial Acts of Public Corporations 108, 109 
 
 Judicial Decisions, nature and scope of 231, 285 
 
 authority of 286 
 
 in other States 190 
 
 in analogous cases 287 
 
 declare Unwritten Law 231 
 
 interpret Unwritten Law 285-288 
 
 Written Law 299 
 
 Judicial Legislation, warranted by law 166, 219 
 
 Judicial Notice, of existing laws 211,212 
 
 Judicial Officers, liability of 50 
 
 Jurisdiction of Courts. (See Courts, Jurisdiction) . . 306-308 
 
 over persons 306, 307 
 
 over subjects-matter 306 
 
 when conferred by consent . . . 306 
 not conferred by fictitious change in 
 
 subject-matter 307 
 
 not outside State 307 
 
 indirect over persons and property . 3(T8 
 
 when presumed 308 
 
 concurrent, of Federal and State 
 
 first to act retains suit . 308 
 
 Jurisdiction of Laws 177, 191-210 
 
 as to place 194-203 
 
 as to time ........ 204-210 
 
 Jurists, writings of, as interpreting law 290 
 
 King as Parens Patrice 330 
 
 King's Bench. Court of 317
 
 382 INDEX. 
 
 Labor Laws 178 
 
 Land, ancient importance of 389 
 
 Law, defined 1 
 
 a dictate of reason * . 1 
 
 the eternal 2 
 
 the natural 3 
 
 the positive 4 
 
 the divine 5 
 
 the human 6 
 
 a phase of the eternal 6, 7 
 
 when valid 8, 265, 273-278 
 
 . uniformity of in all nations and ages ... 9 
 
 the Civil 10 
 
 the Common 10 
 
 the International 11, 171-174, 402 
 
 the Maritime 12, 340, 341 
 
 the Ecclesiastical 13, 178 
 
 attitude of State toward 13 
 
 subjects-matter of 16 
 
 made for persons of normal status 24 
 
 to define and assert rights 119 
 
 less needed in orderly States 119 
 
 by whom enacted 215 
 
 study of in the cases 160 
 
 divisions of 162-190 
 
 substantive and adjective 163-165 
 
 substantive, rules of 164 
 
 adjective, rules of 165 
 
 national and international .... 166-174,178 
 
 national, source of 166 
 
 authority over State .... 167 
 citizens . . . 168 
 
 two in same State 169 
 
 territorial jurisdiction of . . 170 
 
 international, source of 171 
 
 authority of 171 
 
 development of ... . 172 
 
 where stated 172 
 
 territorial jurisdiction of . 173 
 
 topical jurisdiction of . . 174 
 
 a department of law . . 402 
 
 private and public 175-178
 
 INDEX. 383 
 
 Law, divisions of, private and public, 
 
 private, divisions of 176 
 
 law of personal rights 176 
 
 family rights 176 
 
 property rights 176 
 
 private wrongs 176 
 
 private remedies 176 
 
 always national law 177 
 
 public, divisions of 178 
 
 international law . . 171-174, 178, 402 
 
 constitutional law 178, 401 
 
 administrative law 178 
 
 parliamentary law 178 
 
 revenue law 178 
 
 ecclesiastical law .... 13, 178 
 
 military law 178, 349 
 
 martial law 178, 350 
 
 police laws 178 
 
 poor laws 178 
 
 labor laws 178 
 
 school laws 178 
 
 law of public wrongs 178 
 
 remedies 178 
 
 Federal and State 179-183 
 
 distinctions between . . 179 
 sources and authority of . 179 
 territorial jurisdiction of 180, 361 
 topical jurisdiction of . . 181 
 concurrent jurisdiction of 181, 
 182, 358 
 prevail in all the States of 
 
 the Union 179 
 
 administered in all courts . 183 
 Federal governs subjects of 
 
 national character . . 181 
 State governs subjects not 
 of national character . . 181 
 
 English and American 184-190 
 
 English, source of 184 
 
 how far part of our law . . . 185 
 controls the American law . . l s 6 
 interpreted by English decisions 188
 
 384 INDEX. 
 
 Law, divisions of, English and American, 
 
 English, adopted in what States . . . 189 
 
 presumed of force in all States 190 
 
 American, based on English . . . . 185 
 
 interpreted by English . . 187 
 
 forms of 215-282 
 
 Unwritten Law 215-235 
 
 origin of 216 
 
 development of from custom, 
 
 etc 217-223 
 
 history of 224 
 
 of States of the American Union 225 
 of the United States .... 226 
 
 where expressed 227 
 
 maxims of 227-229 
 
 definitions of 227, 230 
 
 judicial decisions of . . . 227, 231 
 treatises on .... 232, 233-235 
 
 reports of 232, 234 
 
 interpretation of ... . 284-292 
 
 Written Law 236-282 
 
 nature of 236 
 
 origin of 237 
 
 dependence on Unwritten Law . 237, 
 
 238 
 
 divisions of 239-282 
 
 Constitutions 240-253 
 Treaties . . 254-260 
 Codes . . . 261, 262 
 Statutes . . 263-282 
 interpretation of ... . 293-303 
 
 jurisdiction of 177,191-210 
 
 as dependent on place 194-203 
 
 lex fori 194, 195 
 
 governs remedy 194 
 
 yields to what laws . . . . 195 
 
 lex ligeantice 196 
 
 lex domicilii 70, 197 
 
 lex rei sitce 198 
 
 lex loci actus 199 
 
 lex loci contractus 200 
 
 lex loci solutionis 201
 
 INDEX. 
 
 185 
 
 Law, jurisdiction of, as dependent on place, 
 
 lex loci pacti 202 
 
 as dependent on time 204-210 
 
 over completed transactions . 205, 209, 
 
 273, 277 
 over vested property rights . . 206. 2n9, 
 
 273, 277 
 over contract obligations 207, 209, 273, 277 
 over incomplete transactions 205, 273, 277 
 over expectant or contingent rights . 206, 
 
 273, 277 
 laws curing formal defects . . 205, 209, 
 
 273, i'77 
 
 ex post facto laws .... 208, 273, 277 
 
 retrospective laws . . . , 209, 273, 277 
 
 may change remedies . 209, 273, 277 
 
 relieve from liability . 209, 273, 277 
 
 law may be in force though repealed 192 
 
 proof of 211-213 
 
 interpretation of 283-303 
 
 necessity and function of . . 283, 284, 293 
 principally by courts 283 
 
 Unwritten Law, standards employed . 284 
 by judicial decisions 285-288 
 comparative value . 286 
 in analogous cases . 287 
 effect on verbal ex- 
 pressions . . . 288 
 by self-evident princi- 
 ples 289 
 
 by popular custom . . 289 
 
 by usage of officers . . 289 
 
 by writings of jurists . 290 
 by" cognate branches of 
 
 law 291 
 
 no finality in ... . 292 
 
 Written Law 293 303 
 
 defines words only . . . 293 
 
 ordinary words . . 29 1 
 
 technical words . . 295 
 
 ambiguous words 296-300 
 
 by context . . 296 
 
 25
 
 386 INDEX. 
 
 Law, interpretation of, Written Law, defines ambiguous words, 
 
 by title, pre- 
 amble, etc . 297 
 by statutes in 
 
 pari materia 29S 
 by judicial de- 
 cisions . . 299 
 by popular cus- 
 tom ... 299 
 by general 
 
 opinion . . 299 
 by legislative 
 
 intent . . 300 
 
 strict, of penal laws 301 
 
 of laws in derogation of rights . 301 
 
 entailing forfeitures . . 301 
 
 conferring police powers . 301 
 
 granting exemptions . . 301 
 
 « taxation and eminent 
 
 domain 301 
 
 creating monopolies . . 301 
 delegating or suspending 
 
 governmental powers . 301 
 conferring right to sue 
 
 State 301 
 
 affecting jurisdiction of 
 
 courts ...... 301 
 
 retrospective .... 301 
 
 repealing previous laws . 301 
 promoting private inter- 
 ests 301 
 
 making provisos in stat- 
 utes 301 
 
 liberal, of remedial statutes .... 302 
 
 application of 304-3G4 
 
 by courts and other agencies 304 
 
 by courts (See Courts) 305-364 
 
 departments of ". - 388-402 
 
 created by social conditions 388 
 
 Law of Real Property . 389 
 
 Law of Civil Actions 390 
 
 Law of Practice. Pleading and Evidence . 391
 
 INDEX. S87 
 
 Law, departments of, Law of Crimes 302 
 
 Law of Torts 393 
 
 Law of Domestic Relations 394 
 
 Law of Personal Property 395 
 
 Law of Estates 39G 
 
 Law of Contracts 397 
 
 Law of Corporations 398 
 
 Law of Equity 399 
 
 Law of Admiralty 400 
 
 Constitutional Law 401 
 
 International Law 402 
 
 "Law of the Land" 216 
 
 Law, Private International 177, 191-210 
 
 Laws, Conflict of 177, 191-210 
 
 of the Confessor 233 
 
 of the Sea 340, 341 
 
 of Rhodes 341 
 
 of Oleron 341 
 
 of Wisbuy 341 
 
 of War 350. 402 
 
 Legal Controversy 315 
 
 Legal Rights 119-131 
 
 Legal Duties 132-138 
 
 Legal Wrongs 139-147 
 
 Legal Remedies 118-155 
 
 Legislative Acts, when valid 8, 265, 273-278 
 
 as to mode of enactment . . 265 
 as to authority of legislature 271-278 
 
 by what bodies enacted 166, 264 
 
 constitutionality of 274-278 
 
 Legislative Authority, where resides ...... 166,264 
 
 the Supreme power in the State . . 166 
 Legislative Journals, Statute-Rolls, etc. as evidence 
 Legislative Proceedings, bow far reviewed by courts . . . 265 
 
 Legislators, exemptions of 53 
 
 Legislature, must act according to established forms . . . 265 
 
 cannot violate fundamental principles 3, 265, 273-278 
 
 exercise judicial or executive powers . . - -'7ii 
 
 delegate its powers 276 
 
 limit power of future legislatures . . . - J7'i 
 
 infringe rights of citizens 276 
 
 lose its powers by non-user 276
 
 388 INDEX. 
 
 Legislature, cannot defeat vested rights of property . . 205, 206, 
 
 273, 277 
 impair contract obligations . . 205-207, 209, 
 
 273, 277 
 
 pass ex post facto laws .... 208,280 
 
 embarrass its future by contracts » . . 277 
 
 intent of, as interpreting statutes ..... 300 
 
 how proved 300 
 
 Lex Domicilii 70, 197 
 
 Lex Fori 194, 195 
 
 Lex Ligeantle 196 
 
 Lex Loci Actus 199 
 
 Lex Loci Contractus 200 
 
 Lex Loci Pacti 202 
 
 Lex Loci Solutionis 201 
 
 Lex Rei Sit^e 198 
 
 Lex Talionis 149, 152, 157 
 
 Libel in Admiralty 346 
 
 Liberal Construction of Statutes 302 
 
 Lien Maritime, in admiralty jurisdiction 344 
 
 Life, begins and ends when 17, 18 
 
 Limitations of Powers, Constitutions of States of the Union 
 
 are 240,247 
 
 Littleton's Tenures 233 
 
 Local Statutes 270 
 
 Lord High Admiral's Court 347 
 
 Louisiana, Civil Law in 189 
 
 Lunacy, Inquisition of 40 
 
 Lunatics. (See Insane Persons) 32 
 
 Mandamus, writ of, against public officers 52 
 
 Mandatory Statutes ..'.... ° 272 
 
 Marine Ordinance of Louis XIV 341 
 
 Marine Insurance 3 *4 
 
 Maritime Law 12, 340, 341 
 
 Maritime Affairs, include what 340, 342 
 
 Maritime Contract 342. 344 
 
 Maritime Lien ; ^4 
 
 Maritime Tort 342, 314 
 
 Marriage, legal conception of 41 
 
 control over 41 
 
 how contracted, modified, and dissolved .... 41
 
 INDEX. 389 
 
 Marriage, invalid, how validated 205 
 
 Married Women, status of, under ancient and modern law 41-43 
 
 separate property of 43, 326 
 
 domicile of 08 
 
 Martial Law 178, 350 
 
 Martial Courts 349 
 
 Maxims, of the Unwritten Law 227-229 
 
 fundamental, primary, secondary, etc 228 
 
 " May," meaning of 272 
 
 Merger 131 
 
 Military Courts 350 
 
 Military Law 178, 349 
 
 Military Officers, exemptions of 53 
 
 in command of conquered territory . . 351 
 
 Ministerial Officers, liability of 50 
 
 acts of 108, 109 
 
 Ministerial Powers, of Public Corporations 108 
 
 Mirrour of Justices 233 
 
 Monopoly, right to 103 
 
 Month, is calendar month 383 
 
 Mortgages, foreclosure and redemption of 326 
 
 Multiplicity of Suits, prevention of in equity 326 
 
 Municipal Corporations. (See Corporations, public) . 106-111 
 Municipal Law. (See Law, divisions of, National) . . . 100-170 
 "Mcst," meaning of 272 
 
 Names of Persons 19-22 
 
 necessity for 19 
 
 identity of 20 
 
 is identity of person .... 19 
 
 idem sonans 20 
 
 Christian 21 
 
 Middle 21 
 
 Surname 21 
 
 descriptive 21 
 
 change of 22 
 
 NAMES OF Corporations 77 
 
 National Law. (See Law, divisions of, National) . . .166-170 
 
 Nations, Family of 17'. 
 
 Law of. (See International Law) . . 11,171-171. 102 
 
 Natura Brevium 283 
 
 Natural Law 3
 
 390 INDEX. 
 
 Natural Person, defined . . . . 16, 17 
 
 life begins and ends when 17, 18 
 
 Naturalization of Citizens 56 
 
 Navigation Improvement Company 101 
 
 Necessaries, for infants, what are 27 
 
 Negative Duties . . . . . . 136, 137, 139 
 
 Negative Statutes 268, 280 
 
 Neutrals, status fixed by international law 174 
 
 New Trials, in equity 326 
 
 Notice, to Members not Notice to Corporation 83 
 
 Obligation of Contract, defined 207 
 
 Office, Public, defined 46 
 
 eligibility to, a political right ...... 46 
 
 term, tenure, duties, emoluments 47 
 
 removal from 47 
 
 forfeiture of 47 
 
 two or more in same person 47 
 
 Officers, Public, status of 46-53 
 
 defined 46-48 
 
 de jure 49 
 
 de facto 49 
 
 validity of acts of 49 
 
 liable to de jure officers for fees col- 
 lected 49 
 
 quo warranto against 49 
 
 ministerial and judicial 50 
 
 liability of 51, 52 
 
 remedies against 52 
 
 exemptions of 53 
 
 State not liable for acts of 51 
 
 superior not liable for inferior 51 
 
 salaries not attachable 53 
 
 all persons presumed to know authority of . 52 
 
 of Corporations 75, 91, 110 
 
 Ole"ron, Laws of 341 
 
 Organization of Corporations „ . . . . 91 
 
 Orphans' Courts 332-339 
 
 Pardon ..... 147 
 
 Parent, authority over child 26 
 
 Pari Materia, Laws in, interpretative value of 298
 
 INDEX. 391 
 
 Parliamentary Law 178 
 
 Parol Demur 31 
 
 Parties to Actions , . . 315, 319 
 
 Partition, in equity 32'J 
 
 Penal Laws, effect of repeal 208,280,281 
 
 strictly construed , 301 
 
 Penalties and Forfeitures, relief in equity 320 
 
 Perpetual Statute 271 
 
 Perpetuation of Evidence, in equity 326 
 
 Person, defined 16 
 
 natural and artificial 16 
 
 natural, life begins and ends when 17, 18 
 
 names of 19-22 
 
 identity of • . . . . 19 
 
 status of 23-65 
 
 domicile of 66-70 
 
 legal equality of 23 
 
 artificial. (See Corporations) 71-112 
 
 Personal Rights, Law of . . . . . 176 
 
 Personal Security, right to 127 
 
 Personal Liberty, right to „ . . 1J7 
 
 Personal Property, Law of 395 
 
 governed by lex domicilii 197 
 
 Petition of Right i? 1 
 
 Pilotage, cases of, in admiralty jurisdiction 314 
 
 Pleading, Law of 391 
 
 Police Laws 178 
 
 Police Powers, of Public Corporations 109 
 
 Political Rights of Citizens 58, 123 
 
 Poor Laws 178 
 
 Positive Law • 1 
 
 Practice, Law of 391 
 
 of the courts is the law of the courts 391 
 
 Preamble of Statute, defined 266 
 
 interpretative value of 297 
 
 Precedents, authority of 286. 287 
 
 Presumption, of Sanity 34 
 
 that English Law is recognized in all States . . 190 
 
 Presumptions 365-387 
 
 field of 365 
 
 necessity for . . . 366 
 
 related to Law of Evidence 387
 
 392 INDEX. 
 
 Presumptions, nature of 373 
 
 of fact or law 373 
 
 distinguished from legal fictions 373 
 
 reasons for adopting 373 
 
 of law and fact distinguished 374 
 
 of Law, are rules of law, not of logic .... 374 
 
 do not require probability 374 
 
 uniform in origin and influence . • . 374 
 
 changeable at will of State 374 
 
 imperative on the courts 374 
 
 if disregarded, new trial 374 
 
 juris et jure, irrebuttable 375 
 
 juris tantum, rebuttable 375 
 
 of Fact, rest on logical deduction 374 
 
 depend on probability 374 
 
 scope measured by logical conclusions . 374 
 
 unchangeable 374 
 
 not imperative on the courts . . . . 374 
 
 if disregarded, no new trial 374 
 
 strong, probable, slight 376 
 
 Mixed 377 
 
 number and variety of 378 
 
 against ignorance and wrong 379 
 
 that every one kuows the law 379 
 
 that all things are done correctly .... 379 
 
 that all children are legitimate 379 
 
 that every one knows what he ought to know 379 
 
 that persons assert their rights 380 
 
 that a possessor has title 380 
 
 that rights long dormant are extinct . . . 380 
 
 that the course of nature is observed .... 3S1 
 
 that persons attain the usual limit of life . 381 
 that infants under seven are incapable of 
 
 crime 381 
 
 that all persons are sane 381 
 
 that desire and opportunity concurring, the act 
 
 was done 381 
 
 that silence, flight, suppression of evidence, 
 
 show guilt 381 
 
 that declarations against interest are true . 381 
 
 that general usages of society are followed . . 382 
 
 that customs of trade are observed . . . 382
 
 INDEX. 393 
 
 Presumptions that general usages of society are followed, 
 
 that knowledge of agent is knowledge of prin- 
 cipal 382 
 
 that parties read papers before signing them 382 
 
 that letters reach their destination . . . 382 
 
 that states of fact, once existing, continue . . . 384 
 
 in reference to time 383 
 
 in reference to rights, duties, and liabilities . . 385 
 
 Conflicting 386 
 
 Preventive Remedies in Equity 323, 325, 326 
 
 Private International Law 177, 193-203 
 
 Private Corporations. (See Corporations, Private) . 89, 90-99 
 
 Private Rights 123 
 
 Private Wrongs, Law of 142, 144, 176 
 
 Private Remedies, Law of 150, 152, 154, 176 
 
 Pbivatk Statutes 269 
 
 Prize Cases, in admiralty jurisdiction 344 
 
 Probate, Courts. (See Courts of Probate) 332-339 
 
 Districts 334 
 
 of Wills 332, 336 
 
 Procedure of Courts, in general 311 
 
 Law of 391 
 
 Proceedings, in Admiralty 346 
 
 in rem 345 
 
 Equity 329 
 
 Prochein Ami 31 
 
 Prohibition, writ of against public officers 52 
 
 Promoters of Corporations 91 
 
 Proof of Laws 211-213 
 
 Property, corporeal and incorporeal 114, 115 
 
 movable and immovable 116 
 
 real and personal 117 
 
 right to 127 
 
 Rights, Law of 176 
 
 personal governed by lex domicilii 197 
 
 real governed by lex rei sitce 198 
 
 vested rights not affected by change of law 206, 273. 277 
 
 public, right to occupy 101 
 
 Real, Law of 389 
 
 Personal, Law of 395 
 
 Provisional Conns 314 
 
 Provisos in Statutes, defined 206
 
 394 INDEX. 
 
 Provisos in Statutes, interpretative value of 297 
 
 Public Corporations. (See Corporations, Public) . 89,106-111 
 legislative and administrative powers of 264 
 
 validity of by-laws 282 
 
 Public Office. (See Office, Public) 46, 47 
 
 Public Officers. (See Officers, Public) 46-53 
 
 Public Property, right to occupy 101 
 
 Public Rights. (See Rights, Public.) 123 
 
 Public Wrongs, Law of. (See Wrongs, Public) . . . 141,178 
 Public Remedies, Law of. (See Remedies, Public) . 151, 153, 178 
 
 Public Statutes 269 
 
 Punctuation, interpretative value of . '. 297 
 
 Purchaser at Admiralty Sale,, title of 345 
 
 Quasi Contracts 128 
 
 Quasi Corporations S6 
 
 Quasi Public Corporations. (See Corporations, Quasi 
 
 public) 89, 100-105 
 
 Quo Warranto 49 
 
 Ratio Decidendi 285 
 
 Real Property, denned 117 
 
 governed, by lex rei sitce 198 
 
 Law of 389 
 
 Recaption 130 
 
 Receivers, in equity • 326 
 
 of dissolved corporation 82 
 
 Records of Courts, authority of 312, 313 
 
 power of court over 309 
 
 Redress of Wrongs, by State, right of citizen to .... 130 
 
 (See Remedies) 148-155 
 
 Reformation of Instruments, in equity 326 
 
 Register of Writs 233 
 
 Relief, against Penalties and Forfeitures, in equity .... 326 
 
 against Judgments at law, in equity 326 
 
 Religious Bodies, laws of, recognized by State 13 
 
 Religious Corporations 93 
 
 Remedial Statutes 268 
 
 liberally construed 302 
 
 Remedies . • • 148-155 
 
 relation of to rights, duties, and wrongs . 148, 156, 157 
 primary purpose is satisfaction for wrong . . . 149
 
 INDEX. 395 
 
 Remedies placing the parties in statu quo . • 150 
 
 compensatory, for public wrongs 151 
 
 for private wrongs 152 
 
 preventive, for public wrongs 153 
 
 for private wrongs 154 
 
 increase with definition of rights . . . 161 
 
 defects in present application of 155 
 
 how affected by changes in law .... 209, 273, 277 
 
 private, law of 176 
 
 public, law of « • • • • 178 
 
 Remedy, includes what 194 
 
 governed by lex fori 194 
 
 Removal, of Causes from State to Federal Courts ..... 363 
 Removing Cloud from Title, in equity .....".. 326 
 
 Repeal of Statutes 280, 281 
 
 of Penal Statute, effect of "208, 280, 281 
 
 Reprisal 149 
 
 Reports, of Judicial Decisions 232 
 
 Common Law 234 
 
 Equity 234 
 
 Rescission of Contracts, in equity 326 
 
 Restraining Statutes 208 
 
 Retorsion 260 
 
 Retrospective Laws 209,273,277 
 
 may change remedies .... 209, 273. 277 
 may validate invalid acts .... 209. 273 
 may remove consequences of past acts . 209, 
 
 273 
 
 Revenue Law ■..,.... 178 
 
 Rhodes, Laws of 341 
 
 Rights 119-131 
 
 denned 120 
 
 based on Natural and Eternal Laws 120-122 
 
 originate in capabilities 120 
 
 controlled by reason and justice 120 
 
 protection of is the purpose of law 119 
 
 sential, legal definition and assertion of 121 
 
 incidental, legal definition and assertion of .... 122 
 
 public and private 123 
 
 normal and abnormal 124 
 
 in rem and in personam 125 
 
 antecedent and remedial 120
 
 396 INDEX. 
 
 Rights, normal antecedent rights in rem 127 
 
 in personam 128 
 
 normal remedial rights in rem 129 
 
 in personam 130 
 
 extinguishment and transfer of 131 
 
 to personal security, liberty, property 127 
 
 to immunity from fraud 127 
 
 contractual, fiduciary 128 
 
 family 127, 128 
 
 of self-defence, recaption, etc 130 
 
 to protection through the courts 130 
 
 of citizens as such . 58, 59 
 
 not affected by supposed death 18 
 
 vested, expectant, contingent 206, 273, 277 
 
 how affected by changes in law . . 192, 206, 209, 273-277 
 logically precede duties, wrongs, and remedies . . . 156 
 chronologically follow duties, wrongs and remedies . . 157 
 
 defined by redressing wrongs 157 
 
 by prohibiting wrongs 159 
 
 many not yet defined by law 158 
 
 study of from standpoint of wrongs 160 
 
 relation of preventive remedies to definition of ... 161 
 
 Rules of Courts 309 
 
 Salus Populi Suprema Lex 228, 229 
 
 Salvage, cases of in admiralty jurisdiction 344 
 
 Sanity, presumed 34 
 
 Satisfaction of Rights 131, 138 
 
 School Laws 178 
 
 Sea, Laws of 340,341 
 
 Seal of Corporation 77 
 
 Seizure, for Violation of Revenue Law 344 
 
 Self-Defence, right of 130 
 
 Sewers, liability of public corporation for 109 
 
 " Shall," meaning of 272 
 
 Shares of Stock 96, 98 
 
 Slaves, status of 64 
 
 Sovereignty of State . . . 7. 8, 54, 58, 123, 167, 171, 173, 276 
 
 three modes of exercise 8 
 
 Specific Intent in Crimes 30 
 
 St. Germain's Doctor and Student 233 
 
 Stare Decisis 220
 
 INDEX. 307 
 
 State, defined 7 
 
 result of Eternal Law 7 
 
 relation to society 7 
 
 when becomes a State 1":'> 
 
 when becomes a member of " the family of nations " . 173 
 sovereignty of. ... 7. 8, 54, 58, 12:!. 167, 171, 173, 270 
 
 holds sovereignty in trust for citizens 1 07 
 
 jurisdiction supreme in its own territory 191 
 
 extends to vessels at sea 170 
 
 independence of, defined 171 
 
 the principal source of human law 7 
 
 owes duties and possesses rights 167 
 
 bound by its own laws 167 
 
 legislative power the supreme power in 166 
 
 fixes location of legislative power 166 
 
 prescribes duties 133 
 
 controls all things 118 
 
 corporations 80, 90 
 
 quasi public corporations 105 
 
 public corporations Ill 
 
 duty to citizens 58, 59 
 
 rights against citizens 60 
 
 not liable for acts of public officers 51 
 
 parens patriae of infants and incapables 26 
 
 as a corporation 112 
 
 bound to reason and justice toward other States . . . 171 
 
 may enforce laws of other States 191 
 
 laws recognized by comity in other States 170, 191, 194-203 
 may forbid hostile acts towards other States .... 108 
 intercourse with other States governed by international 
 
 law 171 
 
 States, rise and fall of !l 
 
 States ok American Union, origin of 246,247 
 
 Constitutions of. (See Constitu- 
 tion,) . . 240, 247. 248, 251, --'.v.' 
 Constitutions of are limitations 
 
 of power 240,247 
 
 reserved powers of 248 
 
 similarities between .... 190 
 govern matters not of national 
 
 character 1S1 
 
 two systems of law in each 169, 179
 
 398 INDEX. 
 
 States of American Union, Federal Law their International 
 
 Law 199 
 
 Unwritten Law of 225 
 
 how far English Law in . . 186-190 
 
 courts of 362 
 
 follow Federal inter- 
 pretation of Fed- 
 eral law .... 183 
 
 Status, defined 23 
 
 normal and abnormal 21 
 
 of infants 25-31 
 
 of insane persons 32-10 
 
 of married women 41-43 
 
 of persons under coercion or duress ...... 44-45 
 
 of public officers . • 46-53 
 
 of aliens 54-62 
 
 of Indians 63 
 
 of slaves ......... 64 
 
 depends on the law 65 
 
 general laws made for persons of normal 24 
 
 principal classes of abnormal 24 
 
 Statutes 208, 209, 253, 263-282 
 
 nature of 263 
 
 validity of . . . , 8, 264, 265, 274-278 
 
 as dependent on mode of enactment . 265 
 on character of subject- 
 matter .... 274-278 
 on relation of legislature 
 
 to State 275 
 
 on inherent limitations of 
 
 legislative power . . . 276 
 on State and Federal Con- 
 stitutions 277 
 
 jurisdiction of courts over questions of . 278 
 
 contents and parts of 266 
 
 title, preamble, enacting clause, 
 provisos, exceptions . . . 266 
 
 date when take effect . . . 267 
 
 declaratory and remedial .......... 268 
 
 enlarging and restraining 268 
 
 affirmative and negative „ . . . . 268 
 
 public and private ..... <..... 269
 
 INDEX. 399 
 
 Statutes, general and local 270 
 
 perpetual and temporary . . - 271 
 
 mandatory and directory 272 
 
 prospective and retrospective 273 
 
 of Limitation, validity of 208 
 
 suspension and expiration of . . < . . . ■ . . 279 
 
 repeal of and its effect 280, 281 
 
 of penal statutes, effect of .... 208,280,281 
 
 constitutionality of 253. i'77 
 
 Stock, Corporations 95-99 
 
 Shares of 96, 98 
 
 Stockholders, lights and liabilities of 96, 97, 99 
 
 STREETS, liability of public corporation for 109 
 
 Strict Construction of Laws. (See Law, Interpretation of) 3<>l 
 
 Subscription for Stock 95, 97 
 
 Substantive Law 1G3, 164 
 
 Suits, multiplicity of, prevented in equity 326 
 
 Sunday, adiesnon 383 
 
 Supreme Court of the United States 353 
 
 Surnames 21 
 
 Surrogate's Courts. (See Courts of Probate) . . . 332-339 
 
 Taxation, on behalf of quasi public corporations 102 
 
 by public corporations . 106 
 
 by the State 60 
 
 Technical Words in Statutes, how construed . ." . . 295 
 
 Temporary Statutes -'71 
 
 Terms of Conns 310 
 
 Territory of United States, law governing 180 
 
 Things, defined 113 
 
 human beings may be 113 
 
 corporeal and incorporeal 111. 115 
 
 movable and immovable 116 
 
 real and personal 117 
 
 authority of State over 118 
 
 Title <>e Si \ m n. 266 
 
 interpretative value of 297 
 
 Title of Purchaser, al admiralty sale 345 
 
 Toils, right to take 104 
 
 Torts, nature of 143, 1 1" 1 
 
 Law of - 398 
 
 liability of infants for . .
 
 400 INDEX. 
 
 Torts, liability of insane persons for 37 
 
 of corporations for 90 
 
 maritime ...... 342-344 
 
 Treason, when excused by duress 45 
 
 Treaties 254-260 
 
 nature of • 254 
 
 preparation and adoption of 255 
 
 validity of 253, 255 
 
 contents of 250 
 
 effect of 257 
 
 when take effect 257 
 
 do not disturb vested rights 257 
 
 supremacy of ■ . . 258 
 
 are part of the Written Law .' 259 
 
 amendment and abrogation of 260 
 
 effect of war on 260 
 
 remedies for breach of . . -. 260 
 
 Treaty-Powers, fixed by international law 174 
 
 Treatises on the Unwritten Law 232, 233, 235 
 
 Trial of Causes 315 
 
 Trusts and Trustees, equity jurisdiction over ..... 326 
 probate jurisdiction over 338 
 
 Ubi Jus Ibi Rkmedium . 148 
 
 Ultra Vires 76 
 
 Unborn Child, rights of 17 
 
 Unincorporated Associations 87 
 
 United States, Constitution of, (See Constitutions, Federal) 
 
 240, 249-253 
 
 includes what territory 180 
 
 governs all matters of national character . 169, 1S1 
 
 concurrent jurisdiction with States . . 181,182 
 
 i authority superior in common field .... 182 
 
 common law in 15 
 
 unwritten law of 226 
 
 Unwritten Law, (See Law, forms of, Unwritten) 215-235, 284-292 
 
 Validating Laws 205, 273, 277 
 
 Validity of Human Laws . 8, 264, 265, 274-278 
 
 Vessels, jurisdiction over, when at sea 170 
 
 title to, tried in admiralty 344
 
 INDEX. 401 
 
 Vested Rights, how affected by changes in law . . 200, 273, 277 
 Voluntary Associations 87 
 
 Waiver 181, 138 
 
 of tort, and suit on contract 143 
 
 Waters, under admiralty jurisdiction 12, 342 
 
 Widow, domicile of 68 
 
 Wife, subjection to husband 42 
 
 domicile of 68 
 
 Will, capacity to make 36 
 
 of insane person 36 
 
 probate of 332, 336 
 
 Witness,' when insane person may be 39 
 
 Words in Statute, interpretation of 293-303 
 
 Writ of Error from State to Federal Courts . . . 363 
 
 Writs, antiquity and influence of 318 
 
 Register of . . » 233 
 
 Written Law (See Law, forms of, Written) . . . 215, 236-282 
 
 interpretation of 293-303 
 
 Wrongs 139-147, 156-160 
 
 against rights and duties 139 
 
 against positive duties admit of degrees 139 
 
 against negative duties admit of no degrees .... 139 
 by malfeasance, misfeasance, nonfeasance . ... 140 
 
 by negligence, simple or gross 140 
 
 public or private 141 
 
 public, how treated by State 141 
 
 private, ingredients of 142 
 
 torts or breaches of contract . . . . 143-143 
 
 relation to status , 148 
 
 extinguishment of by pardon or condonation . . . 147 
 
 remedies for. (See Remedies) 148 157 
 
 legal relation to rights and duties .... 189,156, 157 
 
 redress of, defines rights 157-169 
 
 occupy greater part of treatises and reports .... 160 
 
 Year, is calendar year 
 
 Year-Books 214
 
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