set ne aye es tot gs nae ae ee eT eT Ts Universit K;.P816;1927 ALD | X wn y of Virginia Library ie eadings on th it) 40 iLIBRARY OF THE UNIVERSITY OF VIRGINIA FROM THE LIBRARY OF COLONEL JOHN BIGELOWnwt a a a ir n i ore eterREADINGS HISTORY AND SYSTEM OF THE COMMON LAW COMPILED AND EDITED ROSCOE POUND Carter Professor of Jurisprudence in Harvard University and TDHEODORE PF. i PLUCKNETT Assistant Professor of Legal History in Harvard University THIRD EDITION COMPLETELY REVISED ROCHESTER THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY 1927E & i LH aaPREFACE TO THE THIRD EDITION In 1899 I was ealled on to give a course for college students in the history and system of our law. For that purpose I made a al compilation ot extracts which has expanded oradual \ into the prest hit book. For some years the extracts were mimeographed and given out in parts. Thus it was possible to make changes and additions from year to year. The first printed edition (1904 represented the original nucleus as shaped and in part made over by experience of five years of use. In the second edition (1913) the compilation was thoroughly revised, with the aid of sugges- tions from a number of teachers. That edition having been ex- hausted., the book has once more bec Dee ise | CthHrol\ ohout, W ith the co-operation of Professor Plucknett. Primarily the purpose of these readings is to provide in con venient form materials which may serve as a basis for discussion in class and for lectures and explanati ns which, unle ss the mal ter is before the student at the moment, would be abstract, if not unintelligible. Hence the extracts are not always in accord with each other or with the ideas which the editors have suggested 11 the insertions in smaller type. Indeed, choice of extracts proceed ing on different theories has often been made deliberately in order to provoke thought and inquiry. Special attention has been given to the translations. For the Anglo-Saxon laws Thorpe’s rendering has been r tained in pref- erence to the versions of later editors. His version is bald, but on the whole accurately represents the structure of the original sentences. Moreover, his reluctance to translate old technical terms into modern ones seemed wise. A translation of Anglo- Saxon texts which uses such modern words as ‘“‘compensation,” “damages,” “fine,” “constitution,” has forsaken its proper func- tion and become a commentary. All the Latin and French texts have been newly translated by Professor Plucknett, since compari- son showed that the conventional versions in the usual collections of documents were in several places misleading. Such important texts as the writ of William I separating spiritual and temporal lilLV PREFACE jurisdictions in the hundred court, and the Constitutions of Clar- endon are given for the first time in accurate English versions The extracts from Bracton are specially translated (from Pr fessor Woodbine’s text where it is available) and in all extracts from statutes and Year Books the earlier versions have been care fully revised and corrected. Perhaps it need not be said, however, that no translator can give a substitute for the original texts. The student who has grasped thoroughly that historical “hearsay” in the form of translations, selections, and abridgments — can- not take the place (for serious purposes) of authentic original texts, has already made great progress toward a scientific outlook upon the history of the law. Dit LE Harvard Law School, May 31, 1927.ENCOMIA ON THE COMMON LAW For the English Laws, althouvh not written, may, as 1 and that without any absurdity, be termed Laws. . . . For, rom the raere want of writing only, they should not be considered as Laws, then, unquestionably, writing would seem to confer more authority upon Laws themselves, than either th Equity of the persons ‘onstituting, or 1] the reason of those framing them.—Glanvill, Preface (118% 1 The realm of England was first inhabited by the Britons; afterwards it was ruled and civilized und the government o Romans; then the Britons prevailed again; next it was possessed by the Saxons, wh« changed the name of Britain into England. After the Saxons, the nes lorded it over us, and then the Saxons prevailed a second time; at last the Normans came in, whose descendants retain the kingdom at this day: and during all that time, wherein those several nations and their kines prevailed, England has nevertheless been constantly gove) ied by t same customs as 1t 1S at present: which 1£ tl! ey were nol above all exception 200d, no doubt but some or other of those kines, trom rine ol justize, In point of reason, O1 moved by inclination, would have nade some alteration, or quite abolished them. So at there 1s no pretence to say, or insinuate to the contrary, bul that the laws a1 d customs of England are not only good, but the very best.—Fortescue, De Lau (about 1470). Legum Angliae, cap. 1% And it is to be noted that all the deriving of reason in the law oL England proceedeth otf the first principles of the law, or of some ng that is derived of them; and therefore no man may right wisely judge, ne groundly reason in the laws of England if he be ignorant in he first principles.—Doctor and Student, chap. 5 (1523) For reason is the life of the law, nay the common law itselfe is nothing else but reason: which is to be understood of an artificiall perfection 01 reason, gotten by long study, observation, and experience, and every man’s naturall reason; for, nemo mnascitur artifexr. This legall reason est summa ratio. And therefore if all the reason that is disp¢ rsed into so many severall heads, were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath beene fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, tor the govern ment of this realme, as the old rule may be justly verified of it, neminem opportet esse sapientiorem legibus: no man oul of his own private reason ought to be wiser than the law, which is the perfection of reason. —Coke on Littleton, 97b (1628). PT MTS TOT ay ee eo Ceav1 ENCOMIA ON THE COMMON LAW Whereupon the deputies so appointed, being now assembled, in a full and free representation of these colonies, taking into their most serious con sideration the best means of attaining the ends aforesaid, do in the first place, as Englishmen, their ancestors, in like cases have usually done, for asserting and vindicating their rights and’ liberties, declares). < 5. That the respective colonies are entitled to the common law ol England, and more especially to the great and inestimable privilege ot being tried by their peers of the vicinage, according to the course of that law. 6. That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, respectively found to be applicable to their several local and other circumstances.—Declaration of Rights of the Continental Congress (ETE Ne You shall understand how great a heritage is the law of England, whereof we and our brethren across the ocean are partakers, and you shall deem treaties and covenants a feeble bond in comparison of it; and you shall know with certain assurance that, however arduous has been your pilgrimage, the achievement is a full answer. So venerable, so Snajestic, is this living temple of justice, this immemorial and yet freshly erowing fabric of the Common Law, that the least of us is happy who hereafter may point to so much as one stone thereof and say, The work of my hands is there—Pollock, Oxford Lectures, 111.CONTENTS Page Bincomis om the Gommon Law 22.6.6 © «cece cle © sles cls owen aie meter \ I. Fundamental Conceptions .........--..ese se cee cnn ewe sens J Me SOCIAL CONULON cece cre ce tas tol oo elle) o efte (e tote a olmiauinte) ond stenerenaner™ ] Pe Mhevends Ot |aw-—jUSvIce «yo ete cee shee eer een rere 3 = Theories of the nature of law .......-cecerrcevcrcccecs D 4, Elements of a body of law .........-- ee eeseeeeereeees 16 Se bin orl more) payaso ocacunnooUGoUODDCO CU OOOO IN oCHC «29 (a) The analytical theory ........+---+.-eseseeeeeees 29 (b) The theory of a fundamental law .......-+-.+-: [foo (c) Points of contact between law and MOPS Goonoaoc 36 i. Judicial GISCRCLION. << occ cece nic pusieiers ssf emenn ove ; 36 ie INTACT Al law IMARINO: fee cte ce creree wien etme ter 37 iii. Interpretation .....+-+-.-seereceeseesene 40) II. History of the Common Law .......--..+eeeeeeeetess seers 43 1. The common law as a system .......2-e eee eee reeeee 43 2. Enelish law before the conquest .....-++--++eeeeeeeees 15 RIGS ers occ nee el efeder ie) te ternal ole iuiecennke oie Ee hans 5D 3. The development of the common law .....-+-.++++++++: 55 (a) The kine’s WEBCO eile oto a ooo etalon ie suronane neuen sn ance A) (iy alhes kinets: Wilt <5 teehee sole 65 (diy sihe kanes COULIS jc ee. cee ce oe sles ree 80 (e) The custom of the realm ..........----++++-+-s: 114 (f) Precedents and case law .......-+-..-0++++s2e8" 124 (Pa) AND Theda cou ddogbo.oborododo0-) na 9G0K0c0 134 i Archaic modes of trial ssecn.. 2 eee 13 ii. Development of the jury ....-.-.-+-++++++5: 14] (h) The supremacy of law <- 20-0... enc nile ee 4. The development of CCUG. sere sect elo eiehel ote meyotesene ne ney 192 Behe law merchant =o acc cle cre cle oie ote ce hcisiegern nanan 218 Guihe reform movement. scan seas ie ie = eee en nner 239 Tle Souncescand Worms of Wiaiws oo seein ore ope leet ele olen 5] le “Whecislation. 2) ee cc ie ose clenere cele etete rs oes uerencnene voter 252, O) AnGbrormn)l GEARING Gaoooo bonne couunUnnaoddsanonoacoadcOT 269 3. Books of authority Dc AO ae ay ave adene a febanelokot sls ci emenaienensiene 295 lve The Common law i AMericay ..ccnc «6 cites ce wists ee are 306 Ns RECEP ELON ere a ieke, coe to tes nelen ecole oi eitelielelpenlinir clench ated obeey neko ieonr ok 306 B) Sores) Guanel serene GanacacconobadgoaoouT Neue cccleenie ole ra eet tne arte ee erie eeleen ee a Vill V. Courts: VI. The Common-law VII. i, 2. oO. Ie VIII. Righ XG: Persons 9 le ) 3) 4. oe 6. lee 8. 9. x. Ok » a. = o. li 2 oe 4. 5. CONTENTS Self-help Courts in general ... Jurisdiction Actions The Elements of Procedure At law their Organization and Jurisdiction IMPeneSts™ Seer epee oe ae ice Si ee on Oe Sere Scheme of rights in Anglo-American law ....... leer When does existence begin legralllivaters pyar cere Sc eve oe : @ivilgideathee ee yc cs oe es : ae Waa Clive merc een ret fects aects ee eek cs cis ce Ce ee BYU eeepc eee ne fe iy oo co ore lee ; WoVveniuner a rire Secs sce ks ck ck oc acne Sa0¢ ISUINAC yp LCIOG YA rr a vis oe cs ee oe : Conviction of felony ........ SO oon MOo aus eo obao an: PANINCYTLE Cum ARN Mon AOR ea er. iss, e aceee te Sele SJUTISUICMDETSONS A feet). We rot, oc cscs ce gee ee Nepresentanonmiieachsen mre ee oan ere. Wecalmiransactlonswer rs ya ia tp ee ne, (a RW Onin ee i vec Se eke site (b)) «Grounds ofeavoidance «..-..+.-.5.4..... coor ine Duress and) undue intuence ~ya- 4.0 ose Liner earners hey ee ee apr te ee Wise Mistake, sere ih Reece | ee te (e) Qualifications ec cee aie hee aryieve che cere on << Wye CONditIONS: 42. ee. Giese sects is Wes einen ee ee ee OVS eerie eee ae). OOD OME ao Gc ae eee CAM OUSH epee Cra RN cr ee Nh oe 1. Obligations arising from legal transactions ......... Sater e (ap CONTAC Sits tir ee a ee 1. Formal—specialties alco lfel(ei(elin lied offo\le\re)/eiic)iclal ello} elfel (eve liselveale—debt;sbailment .2......2...0..... ‘ LU OLD Ley | meee ner ee eye elfehe eves terrae sie 401-405, Acquisition of property ........-..see eee ee eter eee AQ) —Alalit. (Ghent ogococu0bag00000000000D 00000 eG0dG0000000C AAD RP NSS OcrITN CN Lymeey ey eaetol eae ien Torch coterie ele etl ied ree sree calmer AGSeatOteXCh ano er mm mieycicmree Actes cle eo ere seueisye ele) slolcugi Oe ol ae lei OMeA Commi Str AtlOMs rc ere elicits cree eter 700 2, 15, Redress by mere Blackstone, Commentaries, III. act Of parties ..... SME CESS Divas Qvveeieteestenetel ete re tele Kee le clicteciteVekercice er si fenesriso cl a ejcorelc 22, Courts 55, 57, Courts of eom1 non law and equity AeA ChIONS at COMMON IAW aac cc ee 119-128, Wrongs or injuriesBlackstone, Commentaries, II I.—(continued 139-143, Injuries to the TOCTS OWN cee ale eine elles al cotter) al crete a cin) atma 145-154, Injuries to personal property ........---ssceesenoees SG, IOpqoytescl Coie, GoooogdsadounguognDcoudooUDOCOUL 983 1654 Action Ole GOCELE «arc d oy cectehe 2 cis) e crane d cist oie mle pare eee siatsl ones Bisel, AbekypeR RE poe ancgocsooocco cdo sodouD DC uD nUaOM Oo ANCOR 507 Yor, Dirikeay ave Wedd jormereelitde Sonar ccececunoccooobbcrnane Lets (vor Wilt es cc Gace audios 5 ec in datisnoueus cis cicreen ee teie ome eee otek 64 WiayetONMss GUTALLON: «x sve. acecccs cicts cuseeeuel ors) were ale siete eee skeleiei cum 37] Bylemients: Ol) PLOCCCULC. Carter, Early History of the Law Merchant in Eng 7 @uar: Rev. 232) ¢.cencss-ceeerennre Aap dbe COC ue OCU UAUce Catheart v. Robinson (5 Pe@andrevis) Gase (5 Rep: Ud) sei. cc tee i ces i) eee otilaw, IRCfOLM afl ace ce eee oe) lock creas 242 Charter of the Province of Massachusetts Bay ........-+++eeeeee0 308 Ghristian’s note to 1 Bl. Comm. 75 ......--..-+-----eescesenerens 223 City of London v. Wood (12 Mod. 669) ......-.--.+----2+-+2eee: 33 Sloiadon, Commins OF 50000000000060000000009090599000990¢ v2 Gri Pe cteSWOle ee eye ie) rerermee rei letehe rete fernt rors ki hore one 3 Grit eciilar WOOUIS) Ol. oyna te teeter ease eee tol neo racks on aa 58 Gnut, Secular Ordinance of .........---- 2+ seer serene retest teees 47 Coggs v. Bernard (2 Ld. Raym. 909) .....----se-e esse eter cece: 593 CGohens v. Virginia (6 Wheat. 265) .....--.-.++--+2-sseceeereee 289 olen SOCOM) MUMS HUEUGC rete cei terete te ce ten ead olan Men onlin ees onen eR ce 180 @Golkes Wourthelmstiputesses seers oo ce caters © choc ne thao caelatone 93, 193, 201 Coke on Littleton. Ar WAIN 6 he eae ete cisco ocr clslicieiw syciniereccle: oe etereneneroreneme 675 WI) IROOM asacoccoog0cdsD0g ddd nd DOOR LOUDON DDD GOO NOS 667 Wesco UVa eee she ce wre cere alkene wot siete lo erclote sn) enn toa 163 (BOT Dee Feats Be gh eo Ua LAS) eae etree letras co elle = col coltet elle) = Cel e}inil-) J el iieliey eseu(aieyients 538 Conference between King James I and the Judges of England. (12 FUG TOMO) eee ee teed ed ees eto Sretentc = he eee uerere cream ore eke croerel: 185 Consiiimnons ore Claman 55500660000066000000000000000000800000 72 Coase Ot WIARERGMRGHIS 51606000060000000000000000000000000¢ 395 Cooley, Note to Blackstone, II, 198-199 ..........-....+eeeeeeeee 686 GOD CURVE ec oye eo tes scree eke oes io. coe ale hose lnfane: oueleleoyenste 50 GO eTey mL be (Oey eset een cs epee ie cle folate eet kernal 4()] Grossmr es Unkey (CLA Gi Wrens: Ser)! srarier sis ein eked eiclcle ol cleo alec atofareltenetoroicr er 291 Crump. Morgan (3 Tred. Hg. 91) -.2.-. 3... ie ie ee 324 Danz, Lehrbuch der Geschichte des romischen Rechts ...........-- 582 Dene Oy Alien (ilooya, OD) -550096055000000000050900G0000000006 184 IDEN MM VAR Os eee 5 ee re ce eicrel cle re ie cals cuore ie) ore coils ove etevoretar iene 400 Declaration of Rights of Continental Congress ..............--..-- 309 Den d, Bayard v. Singleton (1 Martin, N. ©. 42) .................. 187 DenicOneowOUUt ne (aoe Mich 15d); ue... cece. orice a. ermine 381 DSM CAMEL Ol, 2 he res oe yo ie ie es Goes ed Soe esi els mis sels oe area ens 402 DewhunstepeGoulthard: (so Dale 409) 4252.82 2 oes 6 eee eee 390 Dione co SCHWHAO. Gogendcoadoucseds sends cncdaasodunco bc HOR Sil: Dicevee baweot the: Constitution -s.6. 6c. c ee ee ee ee ee ae Dicey, Lectures on the Relation between Law and Publie Opinion in Birr an ee te ak se ce ouenie cee ORO 238, 247, 249, 499 Diemichwia Nonboamp ton (138 Masse 4) i252. 6c eerie | s oie 488 Dicbya History, om tne luaw: ol heal bropertv jase cece aue eens oa eee 687 Dillon, Laws and Jurisprudence of England and America .... 44, 132, : Woctowsandaswuucdent. Wialocweslls chaa) < asses seco ee ae ee ee 43 Dodd v. Browning et al. (Cal. Proc. Chan. I, xiii) Duguit, Les Transformations Générales du Droit Privé Depuis le Code NapoléonEadwine v. Eanwene (Essays in Anglo-Saxon Law, 365) .......... Harlot Oxtord’s Case (1 Rep: in Chan- 1) 2. ee Ecclesiastical Courts, Statutes of 1857, Abolishing Civil Jurisdiction OT i eo re ole le Westie’ eteroreite alee se e¥oleiallptcte's) cfajetslul fe) eveteintatls)si see heacrts Wdoar Ordinance ot the ELUNGred) a... scree see see ee 3 ae 19, Bdcar secular Ordimance Of ees c aes coe alot ype ere ee 19, Woward the Gontessor, Waws Of - 5 ccc << crete c ot sores chee cies Oke Ejectment, Writ of Ejectione Firmae ............-. sees eeeeecenes Hijecitone Hurmae, Writ Of 2... 6 oe cas wists wwe isle cele eereluls nut Biliza ainess sine (99) WS. TG) ae ce oes ctr tameres eno tereh at enitetelatcRaleereratene Embrey v. Owen (6 Bx. 353) .......cs ec ec ccc rccencrccrensenene Bithel perpen les wWSeOly opie 5c boc creiciescce eins stele stenece a rere rmeeva mrepereteys 16, Hiflrel red lia WSHO Ls se nics oc cep eo ehers be wi dese wie cc) bermnete emeisecleysislriet etc Nttine 7 bank of Ul. (ll Wheat. 59)! oe ce on ceo craters wine ool ie Hable ws: Brownie Bulle Bia. (So G2) S18)! cece wcrc nts a eile as niet wie MiArsdadi, INiipid Ips oneacosnoogg abo DocooedontroGouNoON Poe ist re oe 5 SiG io ave Wiaveilcs icicle ois¥ale e'winile'e wists see sleters Blonda Gene Go. wv scoutte (08 Wiebe LUS)) ares cece crctctete oreteteter wie Flournoy v. City of Jeffersonville (17 Ind. 169) ..........-+-----. Fortescue, De Laudibus Legum Angliae .........-.cee eee eee 156, Fournier, Les Officialités au Moyen Age ........--- ee eeeeevveeees Fox v. Hoyt (12 Conn. 491) Mena Ieahinenl Soe = o45enqnoaupoenduodneoubunoonmorsgoDonoKC Hrauds and Perjuries, Statute of .......:5 0.50 ss cece memeee snes (raTelss SClENCE Of 2 oe cc ae el cies oh a a ears re oie nl ol ete citer etellati elie ntelteners Gee a. deritchard: (2) Swalst. 402) ce cnc oem « sie wi sials «i eielale ale site) eis) ni Gasta dieoris ELenmiCii ie ota re cc ce cralelc oalei el he olel cia scien) ot ml sth eterna! a) are Glanvill, De Legibus et Consuetudinibus Regni Angliae 63, 87, 116, 139, 142, the Reign of Edward | Goodwin, Equity of the King’s Court betore Gooawint we ho Darts (le Be oO) He ba i ey recy ete chehetcetet site) iets c wn © gle este mie eins 08, 614, Maitland, Memoranda de Parliamento ..........e+++seeeeeeee Maitland, Prologue to a History of English Law (14 Law Quar. Rev. ee ee awe chee sce cPeferer cacao te tones a, 91s leler'elolsners seen areata Malan v. Simpson (20 How. Pr. 488) .....----+--eeereeeecsceess Manhattan Co., President and Directors of, v. ‘oan (242 Marbury v. Madison (1 Cranch, 137 ven Oe Margaret Appilgarth v. Thomas Sergeantson (Gal. Proce. Chan. I, ate oe eR ce ig Sos ie: alc wt icve Gun) 6 creel olelnitels nus ele) nyeNurese) sumsenry Marginal Note (1688 ed.) Dyer, 111 b ....--e se eee eee e ett e teres Markby, Elements of Law ......---+++eseeeeeeeree: 124, 478, 487 Marsden v. Soper (Ue OHIO pte DOS) ae accel es eel oe soe nce wirceteces)sneiens Massachusetts. Constitution OF .......++++ scents sees se eess settee Massachusetts, Practice Act ......--ccce reeset es ees rer er essceces Massachusetts Bay, Charter of Province of .-.---++--+++seerereees Mathewson v. Phoenix Iron Foundry (20 Fed. 281) ....----+..++:: Meno Cottee (6% Neb. 500) %.. <2 ie ee oie nt eee Mirehouse v. Rennell (1 Cl. & F. 527) 2... -ccccccccrceecessceccss IM age Ge aGinites) (oes ee eee eo aon hoo OC OUD GO DOK OOM OO0D. 8, Mitford, Pleadings in Chancery ......-.--++--+essesees sete t ec ress MTG OLENA era eht ee tL) ere eee eo foe te tm elien eave ey woe ecgsrerniieresieclol Moses v, Macferlan (2 Burr. 1005) .......2ceeees scence eeseceeees Mitr ere. = a oreo oes ars iia vve areravstteleberere fone srs sieie snecer*) ere eaetens thane Nash v. Harrineton (2 Aiken 9) ........---2+----sseerrest eres Negotiable Instruments Law, § 1 .....-.--ssseeeree ere rerseserees SOe ile Oe were ere Role eae Pecos New York Code of Civil Procedure, § 69 ...-----sseessereererere® SS ell ear te Domestic Relations Law, §§ 50, Ol ...-----seeeeeeeeces New York 196 637 387 395 108 3038te ate XVill tetera te Page NewmVorkeveal broperv yaw, «Se Sel crninm = cri si 0c le aia ee 660 S (HB Goaagncancnoe noo gop o0gDG0C ON 674 BS 041-9! 10) Gee ee eee 694 Niboyet v. Niboyet (ale eID a)! ictaeectke ete sec ee crn nohoger or eee 19 Norris v. Clinkseales (47 5. (GL ZI) shop anddoD DDD DOD GIHONOKO0C 36 Ordinance ofthe Elundred of Wdgarr, <7). 371--)-' 0-2 kiss WO) Oe Osgood v. Blackmore (50 ON) aces. cee ee oo 3 eters none 377 Paquete Habana (175 U. 5. GUA. = oe ees occ e cece ol rei MeleRmcre nanos 328 Davdkap Gh Itomouony (3 \iieh 1W)) coooqoposncascognecadospoo3000% 283 Pathersonev. Wann (pebet; 233). oe so = ent ere cle rnd Noho elaine 328 Panikon, INS Gooobun yous bb Un OUOb GbbeUDE OUD bOCODO 2ODCONT 4, 461 Beoplerar meus (iN in ie LE) Soi eels oo) ai-) fe eke he a 527 Dajled, (CWnnmais soucounsasccddpducsdd dou GCM cOCoODODC DOU G00S 586 Pollock, English Law before the Norman Conquest (14 Law Quar. RreveeOile eye cicrna ceri eesice 3 ors wip teke Rec neleencrme ANS (0), ay Pollock, First Book of Jurisprudence PO so OA DIA OOM ODOUOUOC eo) Pollock, The King’s Peace (Oxford Lectures) ....--++-+++-+ere2: 59 Pollock, The Law of England, I-L Victoria (3 Law Quar. Rev. 643) 2am Pollock & Maitland, History of English Law .........- 13, 45, 82, 398 Pomeroy, ode) Remedies)... - =~ < «wel nie neat ncn or ae A409 Pomeroy, Equity Jurisprudence ......-..-++seee cesses ers seteess 642 Pound, The Administrative Application of Legal Standards ......--. 24 _ . Introduction to American Law ......---. see e cree eee: 465, 467 == The) Mheory of Judicial Deeision <-- ~- (6) er pat fe cyan rd recor 16 Powells Brandon’ (24 Missy S43) on cc cere cer cleric site smelertietonens 318 Brathan Brown (3) Wis. 603) .. 5.2.6 oe +. = ore peice ekt ie ieee 275 Presbunyee: Hull (34 Mo. 29) .....+...-.+00+- +: eee 505 Prior of Castleacre v. The Dean of St. Stephens (Yeo 1B QHD fl) oer 183 Prior of Lewes v. The Bishop of Ely (Y. B. 32 & 33) Bap le 32) merece 128 Prohibitions del Roy, Case of (12 Rep. 63) .....-.-eeeeeeeeseeeees 185 aneyadeNicRae. (14 Ga. 589), cc. ce. eine oe eee ee eee 387 Riavenerott v. Biyles (2 Wilson 294) .........5.. sees err 167 Reeinald de Nerford’s Case (Y. B. 13 & 14 Edw. III., 332) ..--.---- 182 Reinseh, The English Common Law in the Early American Colonies (pull Wmiy. Wis.. Elist. Series, Il, No.4). cea eeeeeeeeeer «- 306 Replication of a Serjaunte at the Lawes of England (Hargrave, Law PV ACUSU SAO cere care 6 oie coh ee cre 6) cele © ose veReel RRe Ronen neler icin: cic 198 Report of Commissioners on reducing to a written code the common leit Cnt IMIR ECE aonongudeno65odG0n0 co boc a0 0d090 0000008 120 Resolve of General Court of Massachusetts Bay, 1636 ..........---- 308 Rossum socalaControls chapa dss. 4446 cide RE Ra ss. ] Dep OG eerie cycieie ei ciceicrenremieneeteeierererr-hesiceye)* 3 Reassellgen Case (Ws. Bee 2214, 37). 1 ook eee eons os ss 197SACCATION DUIALODTIS CC® = cae cis soe wie wlekoncdenelei isis sicrchehelas ema: ofa ce mein ene) «nie dD Ara INOOIREOLT OnUt «cc. cuice: = oclels cls ect suceus is stncbaloliniatete eo siare =n 8 Siouribie (Oras bbe vile GH me eorcemomiron adtcmcaoooOhecouDooU mu: 7 Sone Onibtencds ae Wie pagpropocooodoob aoc uddcrecooconGeL 19, 194 Sec Durie AINA OS) as cs 5 5 ae oe ncn olin ei ole oie eo clei sl telal wlors tate wiesanellenerete 168 Satiien, Wate Whale ((intig WAY) GooouncsaccccacooucocospobcgdeDe 206 Select Essays on Anglo-American Leg Eb eitaAve anc darna canNGoO moor 26 Sharswood’s note to Blackstone I, 59-61 ........-. eee cere uneven 12 Sheldon oF Newton (io ObI0 St, 494) soc 6 nes ele nc cles os ene wie ween sinus 382 Shelton a ELamultom (2a Mass! 490) 20 coc s cee cee eee cee n> 0 clei 85 Sim’s Case (7 Cush. 285 ee A En toe aveyelete are sc crd ete she) se cea 286 Smith, Elementary View of Proceedings in Action at law .. <5 0.2 Seale Smithy bersonal Property «= .- 9-0-6 esas eee ee cece 674, 687, 697 Smith v. County Commissioners of Jefferson Co. (10 Col. 17) ..... 540 Smoot v. Lafferty (2 Gilm. 383) .........-s-ecceeeeeecrereeeees 287 Snell, Principles of Equity .......cccecseccececes ness terscecens 495 Sohm. Institutes of Roman Law .......2ssssecssccevesesensseess 38 Spaulding v. Chicago & N. W. R. Co. (30 Wis. 111) .-...---+++4+-- 329 Spence, Equitable Jurisdiction of the Court of Chancery .....--.-- 207 SITONCG ee MISMCGH 4 fee eco ac 6 for wie iM ere simies cinke macs cinisniw orgie etic 4 Spencer ». MeGowen (13 Wend. 256) ...--.-cceensconucessserces 356 STATI Le le er lr es Oe VGGO) sie oo cic ce nie eee) wee el enwle creo ollsarerecer eis 653 SULT Lee LOM Tay SVD aoe mote cee cehin oe the woh ori io) eel mtedny ial nvrou caren) mierel(slienole 160 SS PATLILOMIDCUDOMISE een os oe uno bce we cece © cae arc eheale ol lens chodencione 658 Statute of Westminster II, 1285 (13 E. 1, St. 1) .....---.---+e-s- 404 a, We IDS DY aoe (Ch aebinOrEVbINIG gGacgocuncoonc soo Ono Ad0DOOOOOC 658 Statute of Wills: 32) Elenry WOLD, co Uy oo oe een cia ee nie vie on 698 Statute Quia Emptores, 18 Edw. I, 1290 .......-- esses eee eeeeess 650 Statutes of 1857, Abolishing the Civil Jurisdiction of the Keclesiastical GOUT tS ee hh Fee oi ete eo let eree: secu nt re taier clam rer 76 Stephen, Principles of Pleading in Civil Actions ...-+.++++++++eees 31] Story, Commentaries on the Constitution ol United States .........-. LO4 Story, Equity Jurisprudence .....-2...-csseseeeeee eter secre: 926, O02) miowaibeople (20: WSL) ees arses ne Om: ue eo 92 Supreme Court of Judicature Act, 1873 .......-....---- 101, 409, 633 Supreme Court of Judicature Act, UST sere cd hee woolen G eee eerers L108 Swinburne, A Biief Treatise of Testaments and Last WrailleSian a. 524 Tanner, Tudor Constitutional Documents ......-+-+++sserrsereeee 96 Terry, Leading Principles of Anglo-American Law ......---++++-:: 184 28 a _— Thorpe, Ancient Laws and Institutes o1 MikedbwGl GacogocogedgouugrTown of Baltimore v: Town of Chester (93 Vt. 010) ..-++--++eee-e> Iteadlae m, Wiel KES (Ol Syernil, Bhs) aonnpsascuo00gn 400 9UGGODGDOKOOD OD Tremble vw. Crowell (1% Mich. 493) -.....-20------ 2-2-2 ese en em meuie MRCSDASS WITLU OL clues see es rie crm e ieee Trespass Ontne OW ases Wart Ole secs oe cue leltenel oiiere) we) ole) olla) wi eelwl nie neatens Trinity County v. MeCammon (25 Cal. 117) ...----- esses eee eeee Mucker v. St. Louis Life Ins. Co. (63 Mo. 588) ...........-+-.--ee- Sey Arredondo: (6) mets GON) sc ices cic clone ciel clle siti Ketsiek tetas neaneiEs Ge Sie Elarmonm (45) Hed: 40 erie sere ee occ eens he says, “obtaining in any community, is a creature positive law,’ State: having been esti ablished immediately of the Sovereign or by the monarch or supreme body, as exercising legisl: ane or judi- or having been ‘established immediately by a sub- eial functions; owers of — or ject individual or body, as exercising rights or ] judicial legislation, w vhich the monarch or supreme body has ex- pressly or tacitly conferred.” Sec, 194. In a sense, this is true; the State can restrain its courts from following this or that rule, but it often leaves them free to follow what they think right; and it 1s certainly a forced expression to say that one commands things to be done, because he has power (which he does not exercise) to forbid their being done. Soe. 199. Austin’s statement that the Law is entirely made up of commands directly or indirectly imposed by the State is correct, therefore, only on the theory that eve rything which the State does not forbid its judges to do, and which they in fact do, the State commands, although the judges are not animated by a direct. de- sire to carry out the State’s wishes, but by entirely different ones. Sec. 203. The second theory on the nature of Law is that the courts, in deciding cases, are, in truth, applying what has pre- viously existed in the common consciousness of the people. Sa- vigny is the ablest expounder of this theory. At the beginning of the System des heutigen roemrschen Rechts, he has set it forth thus: “It is in the common consciousness of the people that the positive law lives, and hence we have to eall it Volksrecht. It is the Volksgeist, living and working in all the individuals common, which begets the positive law, so that for the conscious- ness of each individual there is, not by chance but necessarily, one and the same law. . . . The form in which the Law lives in the common consciousness of the people, is not that of abstract rule, but the living intuition of the institute of the Law in its organic connection. . . . When I say that the exercise of the Volks- recht in single cases must be considered as a means to become acquainted with it, an indirect acquaintance must be understood, necessary for those who look at it from the outside, without being themselves members of the community in which the Vollesrecht has arisen and leads its continuous life. For the members of theTHEORIES OF TILE NATURE OF LAW 13 community, no such inference from single cases of exercise is necessary, since their knowledge of it is direct and based on in- tuition.” See. 204. Savigny is car ful to discriminate 1 between the com- mon consciousness ot the pi ople : al Ge GuslLomi. an 4p he foundation of the Law,” he says, ‘‘has its existence, its reality, in the common consciousness of the people. This existence is invisible. How can we become acquall nted with it ¢ We become acquainted with it as it manifests itself in external acts, as 1t appears in practice, manners, and custom. By the uniformity of a continuous and con- tinuine mode of action, we recognize that the belief of the people is its common root, and not mere chance. Thus, custom is the t t sign of positive law, not its foundation.” Soc. 205. Saviony is confronted by a difficulty of the same kind as confronted Austin. The great bulk of the Law as it exists in any community is unknown to its rulers, and it is only by aid commands, that but equally, of the doctrine that what the sové relon permits he that Law ean be consid red as ( manating from him: the creat bulk of the Law is unknown to the people; how, then, ean it be the product of their ‘‘common consciousness ¢ ”’ How ean it be that of which they “feel the necessity as law?” . . h See. 207. Savigny meets the « lifficulty thus: “The Law, origi nally the common property of the collect ted people, in consequence of the ramifying relations of real life, is so developed in its details that it can no more be mast ered | the people generally. Then a separate class of legal experts 1s formed which, itself an e Te ment of in of thought. the people, represents the community in this doma In the special consciousness of this class, the Law is only a con- tinuation and peculiar development of the Volksrecht. The last leads. henceforth, a double life. In its fundamental principles in the common conse 10usness ot the peo} ple; it continues to live | the ap phic ation to details is the special the exact determination an ealling of the class of jurisconsults. See, 208. But the notion that th e opinions of the Jurisconsults are the developed opinions of the people is groundless. In the countries of aie English Common Law, where the judges are the jurists whose opinions go to m: ake up the Law, absurdity in considering them as expressing " Europe, in Germany for instance, there would be less the opinions of the people ; but on the Continent o1ee ee ee 14 FUNDAMENTAL CONCEPTIONS it is difficult to think of the unofticial and undeterminate elass of jurists, past and present, from whose writing so great a part 01 the Law has been derived, as expressing the opinions of the people In their reasonings, it is not the opinions 01 the people of their é . oe respective countries, Prussia, or Schwartzenburg-Sonderhausen, de their judement. They may bow to the authority of which ou statutes, but in the domain ot Law which lies outside of statute, the notions on Law, if they exist and are discoverable, which they are mostly not, of the persons among whom they live, are the last thines which they take into account. What they look to ar the opinions of foreign lawyers, of Papinian, 01 Aceursius, 0 Cujacius, or al the elegantia juris, OF at ‘uristie necessity. yf the people no Sec. 209. The jurists set forth the opinions more and no less than any other specially educate d or trained class in a community sets forth the opinions of that community, each in its own ae They in no other way set forth the Volksgezst in the domain of Law than educated physicians set forth the Volks- geist in the matter of medicine. i might be very desirable that the conceptions of the Volksgevst should be those of the most skill- ful of the community, but however desirable this might be, it is not the case. The Volksgeist carriers a piece of sulphur in its waistcoat pocket to keep off rheumatism, and thinks that butchers cannot sit on juries. Sec. 211. A third theory of the Law remains to consider. That theory is to this effect. The rules followed by the courts in de- ciding questions are not the expression of the State’s commands, nor are they the expression of the common consciousness of the people, but, although what the judges rule is the Law, it is putting the cart before the horse to say that Law is what the judges rule. The Law, indeed, is identical with the rules laid down by the judges, but those rules are laid down by the judges because they are the Law, they are not the Law because they are laid down by the judges, or, as the late Mr. James C. Carter puts it, the judges are the i ott not the creators, of the rhe And this is the way that judges themselves are apt to speak of their function See. 212. This theory concedes that the rules laid down by the judges correctly state the Law, but it den that it is Law because they state it. Be ce considering the Gea let us look a moment at the concession. It is a proposition with which I think mostthat and. therefore, it is true, in the Civil as we ll as in the Common Law, that the rules lal 1 down by the courts of a eountry state the present Law correctly. See, 213. The great gain in its fundamental conceptions w! ich y the last century was the recognition Oo! Jurisprudence made during the li the truth that the Law of a State or other organized body is not an : , : : ; : , : ideal, put something’ which actu lly eCXI1StS. It is not that which 1s or nature, or morality; it is not that in accordance with religion, ob : aah ant : : Tae : which ought to be, but that which 1s. lo fix this definitely in the Jurisprudence ot the Common Law, is the reat that Austin accom- plished. He may have been wrong in treating the Law of the State as being the command of the sovereign, but he was right in teaching that the rules for conduct laid down by the persons acting as judicial organs of the State, are the Law of the State, and that no rules not so laid down are the Law of the State. See. 231. To sum up. The State exists for the protection and16 FUNDAMENTAL CONCEPTIONS forwarding of human interest, mainly through the medium of rights and duties. If every member of the State knew perfectly his own rights and duties, and the rights and duties of everybody else, the State would need no judicial organs; administrative or- cans would suffice. But there is no such universal knowledge. To determine, in actual life, what are the rights and duties of the State and of its citizens, the State needs and establishes judicial organs, the judges. To determine rights and duties, the judges settle what facts exist, and also lay down rules according to which they deduce legal consequences from facts. These rules are the Law. 4. Eiements oF A Bopy or Law Pounpv. Tur TuEory or Jupicr1aL Decision, 36 Harvard Law Review, 641, 645-653 (1923). In truth no fewer than three quite distinct things are included in the idea of law, even limited as the analytical jurists have lim- ited it, namely to the apparatus by which tribunals actually decide controversies in modern societies. Sometimes the jurist has one of these before his mind, sometimes some two of them, sometimes all three. . . . These three elements that make up the whole of what we call law are: (1) a number of legal precepts more or less defined, the element to which Bentham referred when he said that law was an aggregate of laws; (2) a body of traditional ideas as to how legal precepts should be interpreted and applied and causes decided, and a traditional technique of developing and applying legal precepts whereby these precepts are eked out, ex- tended, restricted, and adapted to the exigencies of administration of justice; (3) a body of philosophical, political, and ethical ideas as to the end of law, and as to what legal precepts should be in view thereof, held consciously or subconsciously, with reference to which legal precepts and the traditional ideas of appleation and decision and the traditional technique are continually re- shaped and given new content or new application. It will be worth while to give some examples of each element. Legal precepts are the type of which we think first. But legal precepts are not all of one kind. For example: In our law a promise made by one person to another is not enforceable unless put in the prescribed form of a sealed instrument or madeELEMENTS OF A BODY OF LAW ae in exchange for some promise or other act which the law pro- nounces “consideration.” That is. the law attaches definite leaal consequences to the definite detailed facts of promise in a writ- ing’ sealed, signed, and delivered, or of a promis in exchange for a promise or other act to which the promisor therein was not theretofore bound. This type of legal precept may be ealled a 1 modern rule ora rule ot law. Again, as a cveneral proposition 1 loss suffered by another Here no definite law, there is no legal liability to repair a unless the person held liable has been at fault. detailed | oal result is attached to a definite detailed state of facts. Instead the leoal system lays down a sweeping oO" neralization as an authoritative premise for judicial and juristie reasoning where rules of law are wanting or inapplicable or inconvenient. This type ot legal precept may be ealled a principle. Again, at com- Oo some person for mon law a bailment is a delivery of a chattel some special purpose which defines the duties of the parties with respect thereto. Here there is much more than a single definite legal result or a set of definite r sults attaching to a narrowly de- fined set of facts. A a neralized type of situation of fact is defined and established. Particular states of fact are to be referred to this type. If they eome within the d¢ fined limits, a series of rules or even ot standards become applicable. If the facts ot a O1VE n Cols troversy do not come wholly within the limits of the established type, a basis is afforded for deducing a rule from its logical pre- suppositions. In such cases the legal precept 1s dependent upon a legal conception. Aoain, one who is engaged in a course of con- duct is bound to act with due care under the cireumsta ion for any damage that results nees of his acting, and must make reparat from his failure to adhere to that standard. But no definite, de- iability.. Within with reference to tailed set of facts will inevitably entail such | certain limits the trier of fact must determine ling each action whether that particular the circumstances surrount “due care.” And he is to do bit of action was carried on with so not from any legal knowledge, but from his perience of the conduct sense of what is fair and reasonable, derived from his ex and the opinions of ordinary prudent men in In such cases the legal precept in its application is dependent upon a legal standard. Thus it will be seen that the legal precept the community. itself is not a simple institution. Let us put some examples of the second element that goes to »ee ee Tee Oe ee Saad OU REE oats CONCE 18 FUNDAMENTAL make up the law. In our legal system we have a good example in the doctrine as to the force of judicial decisions as affecting yudi- cial decision of subsequent cases. It is almost impossible for the common-law lawyer and the civilian to understand each other in this connection. In fact our practice and the practice of the Roman-law world are not so far apart as legal theory makes them seem to be. We by no means attach as much force to a single deci- sion as we purport to do in theory. Even the House of Lords, which purports never to overrule its decisions, on oceasion deals with them so astutely as to deprive them of practical ethicacy as a form of law. On the other hand, in Continental Europe a judi- cial decision tends to become the starting point of a settled course of decision, which in some countries is recognized as customary law having the force of a form of law, and in other countries 1s acquiring that effect in practice. But if the results are coming é h ‘ ; . We : in their yroader features to be much alike, the modes of thought are wholly unlike, and these modes of thought have decisive effect upon the administration of Justice. Another example may be seen in the attitude otf legal systems toward specific and substituted redress. With us, substituted redress is the normal type; specific redress is exceptional and reserved for cases for which the former is not adequate. To the civilian, specific redress is the normal type; substituted re- dress is to be used only in cases in which specific redress is not practicable or would operate inequitably. Again, to us these two types of remedy are so distinct that we think of them com- monly as calling for distinct types of proceeding. But the civilian conceives of the proceeding in terms of the right asserted, not of the remedy sought, and so thinks only of what is the practica: means of giving effect to that right. In other words, we think procedurally in terms of the remedy; the civilian thinks in terms of the asserted right. A third example may be seen in the difference between civil- law and common-law thinking as to statutes. According to the orthodox view of our law a statute is something exceptional, some- thing introduced into the general body of the common law with- out any necessary or systematic relation thereto, in order to meet some special situation, and hence governing that situation only. With us a statute, unless declaratory of the common law, gives only arule. Hence statutes in derogation of the common law are8 ymethinge a 1} able must have been withou of fault, or the principle T at anot judicial reasoning. We us code or a text ot the Diges of Continental Europe is 1 C pl s with the eivilian’s of the provisions Ola Gen dents, on the other hand, 1er’s expense. The lat t pri ] + Lat negotiable, or that a malicious prosecution in ‘n the same sense as the principle of e them UC. tury LS Th ‘n form legislation of an Emperor, while the identity of our analogical reasoning interpretation of the Roman-law texts or | not as universal in common-law risd ons as vy legal insti \ ] ] eC With the civilians, on the other nd. a sta iS 1 carded as an expression OL a pr 1c1p to go into th ody ot th | I Q ther legal ] epts which also express principles ( lian l'e ons OY f SI utory } OVI1S S rie S Trom aly O er leag| ru | S iS Aas ¢ S Ol 1 to administer justi a code as s ditheul . had almost s: OS L¢ ror us Lo | j Si 3 of col S ons yives the ] +] ] ] ] DIK iS TNAT a SEFIES ¢ ( sions 1nvo S or us H S , rstand hov ean tr { ter as giving a series } O' rules We fa | to see h he dministel Wustiece DY I Ns rmer ll he I Tl Ot @ases rf ao nH Cr ou orners of the t Upon review of the three examples the second elen Gu the law, it will be seen at the characteristic f re in_eacl A ea c iS THAT the YW AI not 1e¢ precepts ie \ are ) Ss CO oO Aa = h i - uu ] 5 1 7 ] de ine at and handling and shaping legal precepts. They a — nm ae — = S ] l ts ooverning judicial and juristic craitsmanship one who soucht torre a ive the whole econtel Oo Law rl S av it is a rule of law that courts shall 1 ww their past di 1 sions and the analogy of their past decisions or 0 past_deci- i f ec sions of other commol lay jurisdictions where their o\ LI lac ne But such } rul is not rite Th Samm S¢ S¢ Tn rule that a will must have a certain number of witesses, yr that a promissory note must havi words of né eotiability In order to be order LO be action- ble cause. Nor is it a principle - tort liability as < ceorollar. one is to be enriched unjustly are authoritative premises fol is the civilian uses a text of a e accident that the common our common law is in form a body of reported decisions, obscures from common-law prin- d code. The doctrine of prece- something’ tO be developed by20 FUNDAMENTAL CONCEPTIONS analogy. It is not an authoritative premise from which to deduce orounds of decision. It is by no means anything so simple as a rule or a principle. It is not a legal precept at all. . lt isvastradae tional art of judicial decision; a traditional technique of deciding with reference to judicial decision in the past; a traditional tech- nique of developing the erounds of decision of particular cases on the basis of reported judicial experience, just as the civilian has a traditional art of construing legal texts and a traditional technique of developing the grounds of judicial decision there- from. How much our doctrine of precedents differs from a mere rule to follow an established course of decision on a given point of law may be seen by comparing our mode of applying pre- eedents with the French jurisprudence fixée. With us a pre- cedent will govern a case “on all fours.” But it may do much more. We distinguish it and limit it, or we extend its application and develop its principle. The French, on the other hand, think only of a definite proposition as established by a settled course of judicial decision. Neither a decision nor a course of decision can lay down a general rule. The principles to be developed are found elsewhere. In other words, the art of working with the materials of the legal system is no less different than the con- tent of the materials themselves. Nor is there merely a legal precept that the remedy must be by action at law, and hence the relief must take the form of sub- stituted redress wherever that remedy will fully secure the in- terest legally recognized and delimited. riya] 7 \ 2 ) else ural, agricul a AA TUCIi- } { h ecentu na this p Wr e- ( ll oO pel re nove Sie ; ys utions and ade2ing ft 1€e1s- } ( S = son | 3 7 { B Was CIStIL« KING ro ne 10- l¢ CLIbL I { 1 ud. DOW over un 1 1 | sh l ere eases OL a iD Chee Yr oO} eCXD! Sg *¢ TS eonty ) oO pr | econstituti L te Si spl ] tT ivo ( LIi¢ he rit he Ssar\ LO . 1 St1U1 onal ror llaS @€xX tly aS th ntent Or I odel purposes to a 2 A i ma yks, Ou litional art « devised for such problems Except 1 Carta and of the leg@isiati O 1 1] le t the way of building a oreat part a po1llt1e | eommon-lay Bla n seventeenth centur, { iil with the stuarts. The most sjonificant Second rights rekstone. Y et this “\Y24 FUNDAMENTAL CONCEPTIONS England and eighteenth-century France, could not be used, as it came to us, for a measure of American legislative power. Hence the courts fell back upon an idea of “the nature of free govern- ment” or the “nature of American government” or the “nature of American institutions’—an idealized picture of the legal and political institutions of pioneer America. Pounp, Tur ApMINISTRATIVE AppLicaTIoN oF LrGaL STAND- arps, 44 Rep. American Bar Assn., 443, 454-458 (1919). Much of our difficulty in discussions of this subject comes from thinking of the modern law as made up wholly of rules; from thinking of the proposition that estates in land may be conveyed only by deed executed and delivered, of the proposition that he who acts through another acts through himself, of the proposition that a bailment is a delivery of goods for a certain purpose subject to a duty of executing that purpose and restoring the goods when the purpose is fulfilled, and of the proposition that a common car- rier is bound to render a reasonable service with reasonable facili- ties, as legal precepts of the same sort, to be applied in the same way. The Anglo-American analytical jurists, who set the models in juristic thinking, were real-property lawyers and thought of the law in terms of the law of property. The layman is apt to think of law in terms of the rules of the penal code, Hence writers on jurisprudence, in and out of the profession, speak of law as an ageregate of rules. But in truth a modern legal system is much more complex. We have rules, in the sense in which a real-prop- erty lawyer thinks of them, but we have much besides; and I venture to think we shall understand the matter much better by distinguishing rules, principles, conceptions and standards. This may seem unduly complex. But life, which law is to govern, is a complex thing, and modern law requires and possesses a diver- sity of instruments for the purpose. Rules were the staple of the beginnings of law. Ancient codes are made up of a series of detailed rules for definite detailed situations. “If a free man strike a free man,” says Hammurabi, “he shall pay ten shekels of silver.” ‘Whoever is going to con- tend about a freeman or slave,” say the twelve tables of Gortyna, “shall not lead him away before trial.” “If the father sell the son three times,” say the Roman Twelve Tables, “let the son be free from the father.’ “If any man shall have called anothero ELEMENTS OI A BODM OF LAW. 25 ‘fox, ”’ says the Salie law, “he shall pay three shillings.” Here in each case we have a definite detailed provision for a definite detailed state of facts. There is nothine to be done in the way of application beyond ascertaining whether that state ot facts exists or does not exist. Compare with these the rule as to what particular estate will support a contingent remainder, the rules as to what covenants will run with the law and when they will run, the rule that no one ean transter a better legal title than has and the English rule making an exception in case of sale in market overt, the rule that possession is necessary to a common law lien. the rules as to what is a negotiable instrument, how such instruments may be transferred and the effect of different modes of transfer. All thes prescribe a fixed and definite result for fixed and definite situation of fact. Outside of the criminal we find such rules chiefly in the law of property and the law of ] commercial transactions, where there is « xceptional need for cer tainty to maintain the economie order. It is no aecident that these same portions of the law rely much upon Torms. A second element may be called principles. These are gener: premises for judicial and juristic reas ning, to which we turn to supply new rules, to interpret old rules, to meet new situations, to measure the scope and application of rules and standards and to reconcile them when they conflict. Examples may be seen in the principle that one person is not to be enriched unjustly at the expense of another, which is used in declaring constructive trusts and is behind the rules as to quasi contract; the principle that liability is a corollary of fault, which has played so large a part in the modern law of torts; the principle that harm intentionally caused is actionable unless justified, through which a new chapter This ele- ment comes into law with the advent of legal writing and juristic in the law of torts was written in the last generation. speculation and the presence of this element as a controlling factor is the mark of a developed legal system. A third element may be called legai_ conceptions. These are more or less well-defined types to which we refer or by which we classify cases, so that when a particular case 1s so classified we may attribute to it the legal consequences attaching to the type. Examples are sale, bailment, lien, trust, contract, tort. This ele- ment comes in with juristic study in the attempt to set the ma- terials of the law in order. But it is also much relied upon in26 FUNDAMENTAL CONCEPTIONS the maturity of law as a guarantee of certainty and a means of holding down the personal feelings of the magistrate. For it 1s f fitting a particular case into the supposed that the process « appropriate category is one of pure logic, affording no more chance to the: bias or prejudice of a tribunal than the ordeals and me- chanical modes of trial in primitive law. Fourth, we have standards—legally defined measures of con- duct, to be applied by or under the direction of tribunals. As examples, I may cite the standard of due care under the cireum- stances which obtains in the law of torts, the standard of reason- able service in the law of public utilities, the standard ot conduct of a fiduciary in equity, the standard of reasonableness in the law as to restraint of trade, and the standard of due process of law in passing on the validity of legislation under the Fourteenth Amendment. We may see the same institution in Roman law, as. for instance, the standard of good faith in negotia bonae fidet, the standard of use by a usufructuary according to the Judgment of a good man, the standard of fault in contractual relations, namely, failure to come up to the measure of a just and diligent head of a family. It will be noted that a common idea of reason- ableness or fairness runs through them all, and in consequence they must have a variable application with time, place and cireum- stances. Moreover most of them contain a large moral element and so application of them calls for common sense or the average moral judgment rather than for deductive logic. Standards are late developments in law. Thus the standards of the Roman law belong to the classical period; the standard of due care in our law of negligence is the work of the nineteenth century, and the standards of reasonable service and reasonable facilities in our law of public utilities were not understood until the end of the last century. Moreover, nineteenth-century courts distrusted these standards and sought to put them into. strait- jackets. Degrees of negligence, attempts to lay down that this or that was negligence “as a matter of law,” and the ‘‘stop, look and listen” rule bear witness to distrust of standards and desire to subject conduct to fixed detailed rules. But elimination of circumstances in order to get a rule makes the rule impossible as a practical compromise between the interests of the several par- ticipants in the infinitely variable situations of human conduct. In framing standards the law seeks neither to generalize by elim-ELEMENTS OF A BODY OF LAW inating the circumstances nor to particularize by including them; instead, the law seeks to formulate the general expectation 1 society as to how individuals will act in the course of their under- takines. and thus to euide the common sense or expert intuition of jury or commission when called on to judge of particular con- duct under particular circumstances. Titles to land and the nevotiability of bills and notes do not depend and ought not to dep nd upon circumstances. Such matters are governed by rules and are not left to juries or to commissions. On the other hand what is due care in driving cannot be determined in the abstrac Once for all for ever, driver Who will 6VEL drive. What is a Lea: sonable railways service cannot be laid down in the abstract for an abstract railroad running through an abstract region and applied to all railroads ther atter by a log al process. These are stand- ards, devised to ouide the triers of fact or the commission in ap- plying to each unique set of circumstances their common sense resulting from their experience. 5o, also, due process of law, applied to legislation, is not an abstract conception from which to reach absolute conclusions as to the abstract validity of legis- lation, applicable to every time and place. Lt is a standard tO enide the tribunal in upholding the elaim of the individual, euar- anteed to him by the bills of rights, that his will shall not be overridden arbitrarily, that his will shall not be subjected arbi- trarily to that of the law maker, and it is to be applied in view of the special circumstances of time, place and public opinion in which the act is to take effect. Thus disagreements of judges in eases under the Fourteenth Am¢ ndment become intelligible. If the matter were one of pure logic, the long series of five-to-tour ] ae i ee decisions would suggest that there was madness 10 the logical! method. Because, as Mr. Justice Holmes has SO aptly put te these judgments ‘‘depend on intuitions too subtle for any articu- late major premise,” we can expect no absolute agreement among those who apply the standard. And yet to have the standard applied in the light of the expert intuitions of trained judges may be a useful part of our scheme of social engineering. In negli- gence cases judges frequently disagree as to whether a reasonable jury could reas nably find negligence on oiven evidence. If we assume that holding judicial office is proma facie evidence that the office-holder is a reasonable man, it would seem at first that the mere fact that one member of the court through the evidence war-28 FUNDAMENTAL CONCEPTIONS ranted a verdict of negligence would be conclusive that twelve other reasonable men might reasonably have so found. But that 1s to mistake the question. What is really in question in such eases is the limits of the standard, not the application of it. Those limits are not questions of common sense or of expert intuition. No more is the interpretation of the Fourteenth Amendment, as distinguished from application of the standard established by the interpretation, a matter for common sense or intuition. The criticism sometimes directed at the illuminating dictum of Judge Holmes assumes that he was laying down a canon of interpreta- tion. But he was not. He was describing what actually takes place in the application of a standard after th standard has been found and its limits have been fixed by deduction or interpretation or the appropriate means of finding the law. To quote him once more, between these institutions of modern law, which involve nice shadings and expert intuitions “and the simple universality of the rules in the: Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years.” Indeed the sequence of rules, principles, conceptions and stand- ards is but a phase of a general sequence in modern thought. In the Middle Ages men relied on authority. The Fathers of the Chureh, Aristotle and Justinian sufficed to decide all questions. Beginning with the Revival of Learning and culminating at the end of the eighteenth century, men relied on pure reason. In the nineteenth century men relied on logical development of funda- mentals found through metaphysics. Today there are many signs that we are coming to rely on intuition having its roots in ex- perience. In legal history, the strict law relies on authority and employs rules; the stage of equity and natural law relies on reason and employs moral principles; the maturity of law relies on logic and employs legal conceptions. Today we rely also on Gatton expressing experience, and we employ standards. But it should be noted that in this sequence we do not wholly replace the fore- going by the succeeding. We add each successively to those that have gone before, so that with the increase in the number and the complexity of the interests to be secured we acquire a larger and more diversified legal armory. ;[EORY THE ANALYTICAI I 5. Law anp Morats? {a) Thi Analytical Theory Amos, ScrencE or Law, 43-40. In all this story of universal development it will be observed that law can only take under its shadow a very small portion of the inherent life and force of each institution, though to the whole institution it gives so much. Law, indeed, marks out the limits of the family, and pro\ ides oeneral remedies for the grosser viola tions of the integrity of the family. But it can go, and does g0, a very little way towards making good husbands and wives, fathers and mothers, sons and daughters, brothers and sisters. Law ean ereate and define the relations of landlord and tenant, farmer and laborer: but it is well known how little it can do directly to guide landlords in the rent they morally ought to exact, or the compen- 1 t which they sation for improvements made by an outgoing tenan ought to allow, or to compel farmers to remunerate their laborers, build cottages for them, and exact work from them in the way least likely to render them paupers in their old age. So with contract. The operations of the market must meet with some other stimulus and guide than legal rules, if men are to be scrupulously honest in keeping their engagements, in selling voods, in laying bare all the hidden vices pure and unadulterate they are endeavoring to find customers. l of the things for which | ean do none of these things directly. Indeed, | Law do them directly it may only weaken that force of morality which yy tryine to alone is equal to the task. Law can do much, however, indirectly Geld within which moral _agencies are i It defines the field and the ditterent portions of the Law is the constant and visible representative of ealled to work. t outside the individual interest of each man an universal interes and household. The best and most vigilant of men might be tempted to invade the moral claims of their neighbors, if they were not forcibly reminded of the great and strong fence by which those claims are encompassed. In the same way the weak, 1 Pound. Law and Morals (2 ed.) ; Amos, Science of Law, chap. 3; Gray, Nature and Sources of Law, chap. 13; Pollock, First Book of Jurisprudence (5 ed.) 46-56; Dillon, Laws and Jurisprudence of England and America, 12- 20: Korkunov, General Theory ot Law (Hastings’ translation), 47-64; Ames, > Law and Morals, 22 Harv. Law Rev. 97.es Oe pee eee ee ions 30 FUNDAMENTAL CONCEPTIONS eredulous, and thoughtless might be easily seduced from time to time to part with their, moral birthright of liberty, and to render themselves the contemptible slaves of the strongest in the neighbor- hood. if the law did not stand by them, to remind them as much of their moral as ot their legal rights, and to warn transeressors of their leoal as well as of their moral duties. Thus it is well for all men, in the course of perfecting their moral nature, to have ever at hand a grand, visible, and practical witness to the claims of their brother men, to the subordination of the individual person to the State, and of the subst rviency ot all individual ac- tion and life to the accomplishment of the weneral aim of humanity. Lastly, and perhaps more than all, it is in securing to individual men a free field of undisturbed work and life—in other words, in securing personal hberty that law- exhibits its main moral etheacy. Men cannot be virtuous unless they are free, and they cannot be free unless they are strongly guarded against the occa- « . sional license or permanent selfishness of those who might impai e violent and the bad that their security. Nor is it only against tl this security for freedom is needed. It is needed likewise against the well-intentioned and conscientious, who have not learned to n spirit nor to refrain from giv- respect the solitude of the hum: ing rein to their own capricious tempers and passions. Law re- spects and guards the liberty of all, and, before the law itself 1s broken, shelters the independence of the vile and worthless with as much jealousy and alacrity as that of the deserving and the rich. Poxiiock, First Book or JURISPRUDENCE (3 ed.), 46-48. The possible coincidence of law with morality is limited, at all events, by the range of that which theologians have named external morality. The commandment, “Thou shalt not steal,’ may be, and in all civilized countries is, legal as well as moral: the com- mandment, “Thou shalt not covet,’ may be of even greater 1m- portance as a moral precept, but it cannot be a legal one. Not that a legislator might not profess to make a law against covetous- ness, but it would be inoperative unless an external test of covet- ousness were assigned by a more or less arbitrary definition; and 1 Unchanged in later editions.THE ANALYTICAL THEORY then the real subject-matter of the law would be not the passion of covetousness. but the behavior defined as evincing io The judgment of law has to proceed upon what can be made manifest, and it commonly has to estimate human conduct by its conformity or otherwise, to what has been eall d an extel nal stand: r l. Aet and intent shown in acts and words, not the secret springs of con- duct in desires and motives, are the normal materials in which courts of justice are versed, and in the terms of which their con- clusions are worked out and delivered. With rare exceptions, an act not otherwise unlawful in itself will not become an offense or legal wrong because it is on sinister moti nor will it be any excuse tor an act contrary to the general law, or in vi tion of any one’s rights, to show that hi proceeded was good. If the atten the purely moral kind by 7] will happen. Either the tribunal will be ouided by mere isolated impressions of each case, a e] re will not 1dminister yustic at all: or (which is more likely) precedent and usage will beget settled rule. and the tribunal will find itself administering a fol mal system of law, which in time will be as technical, and appeal as openly to an external Stk ndard, as any other systel [his process took place on a gr seale in the formation of the Canon Law, and on a Cf nside rabli SCé n tne ¢ rly hist ry ort I nelish equity jurisdiction. SALMOND, First PRINCIPLES ¢ aged We have defined a principle of law as a principle recogm and acted upon by the State in the administration of justice. lt follows that the validity of a legal principle is entiz ly inde- pendent of its truth. It is a principle of law. not because it true. but because it is accepted and acted upon by the State as true. That two and two make five is open to grave ob} etions = of mathematics, but may be a perfectly valid rule as a principle {uthoritas rom Ve ritas Ta ut li gent. of law. As Hobbes says: - Nor does the existence of a legal ] To accept a principle as true for the purposes thine from believing it to be true; for yrinciple imply or involve any belief in its truth. of action is a different though a principle be not true, it may be expedient to act upon 1 as 1f it were.ou FUNDAMENTAL CONCEPTIONS Hence a divergence of law from truth and fact is in all cases possible, and in many cases expedient, and in all legal systems such a divergence exists to a very great extent. We have ever to distinguish that which is in deed and in truth from that which is in law. Negligence in fact is not necessarily negligence in law and vice versa. Fraud in fact may not be fraud in law; malice in law may not be malice in fact. S:nee the aim of the administration of justice is the maintenance or protection of rights, it follows that among the most important of legal principles must be those defining rights. Now the law may recognize as a right that which is not so in truth, or may fail to recognize one which in truth exists. Hence we have to distinguish between rights in fact and rights in law, that is to say, between natural rights and legal rights. And similarly of wrongs, duties, and liabilities. Unrrep Sratrs v. Harmon, Unrrep Stares Disrrror Court, Disrrict or Kansas, 1891 (45 Fed. Rep. 414, 422). [Indictment for sending obscene matter through the mails. Defendant contended that he acted for the public good, with up- right motives, to promote knowledge of sexual hygiene. | Philips, J.: The proposition is that a man can do no public wrong who believes that what he does is for the ultimate public eood. The underlying vice of all this character of argument 1s that it leaves out of view the existence of the social compact, and the idea of government by law. If the end sought justifies the means, and there were no arbiter but the individual conscience of the actor to determine the fact whether the means are justifiable, homicide, infanticide, pillage and incontinence might run riot. : Society is organized on the theory, born of the neces- sities of human well-being, that each member yields up some- thing of his natural privileges, predilections, and indulgences for the good of the composite community; and he Coneennel to all the motto implies, salus populi suprema est lex ; and, as no govern- ment ean exist without law, the law-making power ene the limits of constitutional authority, must be recognized as the body to prescribe what is right and prohibit what is wrong. It is the very incarnation of the spirit of anarchy for a einen to proclaim that like the heathen he is a law unto himself.NDAMENTAL LAW oD Gin) eh Phi Ty oF a Fundamental Law BLACKSTONE, CoMMENTARIES, I, 41. This law of nature, beine coeval with mankind, and dictated DY God hims¢ lf. IS OL course si pi rior 1n obligation to every otner. It is binding over all the globe in all countries, and at : no human laws are of any validity, if contrary to this; and such " 4] 1: ] ] ] . > ae } . 1 . ot them as are valid derive all their ftores and ali thelr authority, mediately or 1mm diate ly, rrom ti is original. BonuAam’s Case, Common Pieas, 1610 (8 Rep. 1184 Lord Coke: And it appears in our books, that in many cases the common law vill trol acts of p: rliam nt, and sometimes adjudge them to be utterly \ id: for when an act ot parliame ht is against common right and reason, 01 repugnant, or LmMposs! le to be performed, the common v will control it and adjudge such act to be void. - : So it an act of parliament gives to any to hold. or to have conusance of, all manner of pleas arising before him within the manor of D., yet shall he hold no plea, to which he himself is a party: for, as hath been said, inrquum est aliquem . ° 1° 9 sude ret eSSt JUALCE Vix Ciry or Lonpon v. Woop, Kine’s Bencn, 1701 (12 Mod. 669, OSd ) Lord Holt: And what my Lord Coke says in Dr. Bonham’s Case in his 8 Co. is far from any extravagancy, for it 1s a very rea sonable and true saying, that if an act o1 parliament should ordain that the same person should be party and judge, or, which is the same thing, judge in his own cause, it would be a void act of par- liament; for it is impossible tl for the judge is to determine between party and party, or between the government and the party ; and an act of parliament can clo at one should be judge and party, no wrone. though it may do severa! things that look pretty odd: 1 Maine, Ancient Law, chap. IV, and Sir Frederick Pollock’s note G; Bryce, Studies in History and Jurisprudence, Essay 11; Holland, Elements of Juris- Markby, Elements of Law, §§ 116-117; Kor prudence, chap. 3, subdivision 1; 138. see also kunoy, General Theory of Law (Hastines’ translation), 116 Grotius (Whewell’s translation), Bk. I, chap. 1, §§ x xii. For an exposition of jurisprudence from this standpoint, see Lorimer, Institutes of Law (2 ed.) 2See (Coxe. Judicial Power and Unconstitutional Legislation, chap. 16; and Judicial Review, 40 Harvard Law Review, 30- Plucknett, Bonham’s Cas 70Se tee eee renee 34 FUNDAMENTAL C( YNCEPTIONS from his allegiance to the covernment he for it may discharge one nature: but it cannot ler. and restore him to the state of vovernment judge and party. An lultery lawful, that is, it cannot but it may make i lives unt make one that lives under a act of parliament may not m: ake ac make it lawful for A. to lie w ith the wife of B., wife of A. to be the wife of B. and dissolve her marriage with A. Ler v. Bupr anp TorrtncTon JUNCTION Rattway Co., 1871 (L. 12. @ Oh 1 iG, brea Nc Willes. J.: It is further urged that the company was a mere nonentity, and there never were any shares or shareholders: That resolves itself into this, that parliament was induced by fraudulent recitals (introduced, it is said, by t the plaintiffs) to pass the Act ld observe, as to these Acts of which formed the company. T woul Parliament, that they are the law of this land; and we do not sit here as a court of appeal from pé arliament. It was once sald— [ think in Hobart*—that if an Act of Parliament were to create a man judge in his own case, the court might disregard it. stands as a warning, rather than an au- We sit here as servants of the Queen and regents over what is done by That dictum, however, thority to be followed. the legislature. Are we to act as parliament with the consent of the Queen, lords and commons % I deny that any such authority exists. If an Act of Parliament a been obtained improperly, it is for the legislature to correct it by repealing it; but so long as it exists as law, the Courts are bound to obey it. The proceedings here are judicial, not auto- cratic, which they would be if we could make laws instead of ad- The Act of Parliament makes these persons ministering them. there is an end of the ques- shareholders, or it does not. If it does, tion. If it does not, that is a matter which may be raised by plea to the sci. fa. Having neglected to take the proper steps at the proper time to prevent the Act from passing into a law, j& is too late now to raise any objections to it. Loan AssoctaTion v. ToprKa, SUPREME Court oF THE UNITED Srares, 1874 (20 Wall. 655, 662). Miller, J.: It must be conceded that there are such rights in ee ae ne raneEinn 1In Day v. Savadge » (1614) “Hob. 87: “Even an Act of Parliament made against natural equity, as, to make a man judge in his own case, is void in itself; for, jura naturae sunt immutabilia, and they are leges legum.”Co © THE THEORY OF A FUNDAMENTAL LAW every free government beyond the control of the State. A govern- ment which recoonized no such rights, which held the lives, the 1 liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most demo cratic repository of power, is after all but a despotism. It 1s true it is a de spotism ot the many, of the majority, if you choose to eall it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of eqd i others, whether it is not wiser that this power should be exercis by one man than by many. The theory of our governments, Stat and National, is op posed t e deposit of un where. The executive, We 1 eee and the judicial branches sri. limited power any of the governments, are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments—implied reservations of indi vidual rights, without which the social compact could not exis sovernments entitled to the name. re void statute and which are respected by all No court. for instance, would hesitate to Wee which enacted that A. and B, who wert h iS incl ¢ id y ite to each ] other should be so no longer, but that A. A eet Ae be the and B. the wite of D. Or which should enact that 1 | I husband of C the homestead now owned by A. should no longer be his, but should henceforth be the property of BY BerrHour'y. O’REItty, Court or Apprars or New York, 1878 (74 N. Y. 509). Andrews. J.: If an Act can stand when brought to the test of the Constitution, the question of its validity is at an end, and neither the executive nor the judicial denanimenl. of the govern- ment can refuse to recognize or enforce it. The theory that laws may be declared void when deemed to be oppose -d to natural justice and equity, although they do not violate any constitutional provi- sion, as some sup port in the dicta of learned judges, but has not icon SSA aC ue in Hlstcher v. Peck, 6 Cranch, 87, 135; Chase, J., in Calder v. Bull, 3 Si 386. 388: Field, J., in Butchers’ l nion Co. v. Crescent City Co., 111 U. 8. 746, 762; Harlan, J., in Chicago B. & Q. R. Co. v. Chicago, 206 U. S. 226. 237; Cobb, J., in Pavesich v. Life Ins. Co., 122 Ga. 190, 194; Winslow. J.. in’ Nunemacher v. State, 129 Wis. 190, 198-203.36 FUNDAMENTAL CONCEPTIONS been approved, so far as we know, by any authoritative adjudica- tion, and is repudiated by numerous authorities. No law can be pronounced ‘nvalid, for the reason simply that it violates our notions of justice, 1s oppr’ ssive and unfair in its operation, or f some or all of the citizens of the State, because, in the opinion it is not justified by public necessity, or designed to promote the public welfare. We repeat, if it violates no constitutional provi- sion. it is valid and must be obeyed.* This notion that there is an appeal from legislation to common night and reason or to the law of nature and that courts are bound to give effect to the latter as against the positive law in conflict therewith, formerly had no little vogue and still reappears in occasional dicta, sometimes as an absolute dogma,? sometimes as a mere rule of moral obligation, and sometimes in its true place of a rule of interpretation. In practice we may admit two propositions only: (a) As between a man and his conscience, he may under some eireum- stances be justified morally in disobeying a law. He may appeal to his reason and conscience for internal justification; but the courts can and will look only to the law. (b) There are certain points of contact between law and morals, where the courts look primarily to general principles of right and justice for euidanee. These are three: discretion, judicial law-making, and interpre- tation. (c) Points of Contact between Law and Morals I. Judicial Discretion Bouvier, Law Dictionary. Diseretion—The power exercised by courts to determine ques- tions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the ease, are controlled by the personal judgment of the court. T e = ‘ aes 7 wena Nees | ‘ Norris v. CLINKSCALES, SUPREME CourT or SoutH CAROLINA, L896" (47S. G. 488). : im ee ost : : Benet, J.: The term discretion implies the absence of a hard pee tae ™) sf : , and fast rule. The establishment of a clearly defined rule would 1 Compare Iredell, J., in Calder v. Bull, 3 Dall. 386, 398-9. 2“Whatever the objections of the common law of Eneland, there is a law higher in this country, and one better suited to the rights and liberties of the American people—that law which accords to every citizen the natural right to gain a livelihood by intelligence, honesty, and industry ‘in the arts, thePOINTS OF CONTACT BETWEEN LAW AND MORALS ] , al Als ate ] is : be the end ort aiseretion. And yet aiseretion should not be a word for arbitrary will O nstabd capr Haywoop v. Corr, Rotzus Court, 1858 (25 Beav. 140, 151 ) \T T> Romilly \l at It S most l ) tT! ] pro SS1LO] l I those who have to advis l ert Ce ss ( shou mmdel stand the rule wv adopted his and ther courts, which 1S, th iT the CLiSere t] n Oo} ie @t rts must He ext rels | according tO fixed ;: ] t+ al ne 4 ] : 1 1 xed and Settit es; you Can Not Cxercelse a cdiseretion DY merely considering what, betw: the parties. would be fair t done: what one person may « sider fair, anothe rso ni eonsiaer very untalr;, you m st have some sett dad ru na rineipl upon . . , : . . : whi h to determine how that (Lis Li Ss TO | exel ‘ised. Four proposil ons may bt ald dow Vi ] ( r ) e exereise oO] ] 1 1 discretion: (1) Whether or not a matter 1s one for law or Tor discretio! is settled by law, and the court has no wel 1) in e eatezory or the other at pleasure. A cou no dist m te | iw or not as it sees hit (2) Where diseretion 1s conterret nust real De exercised as such; the court canno ict Oppresslve l ) rl ungel pretence ot exereélslng d seretion. Sueél arpitral ( oppress ( i n under color of exercising diseretion 1S called € oO disereti {o) If discretion reposed in a court or judge is in fact exercised as such, the manner ol its exerels vill not be reviewed !) But if the iscretlol is abused, the abuse may be re L¢ wed and ¢ rrected b a noner ti bun l. ele J rcval Lawma g J idicial lawmaking reters to daecéislon by J] oes ot cases ot a Oo el } ] tT ] ] 4 character, not governed or impertectly governed existing rules of law, rom times when there legislative and judicial functions was little or no legislation, and when the were undifferentiated and cont ised, partly a necessit) by reason oO 1m po sibility of foreseeine the infinite variety of controversies upon whieh courts must pass and of establishing 1n advance principles for their determination. Its scope and importance dim nish in the maturity of a it is an inevitable element in judicial administration 01 legal system, but arbitrary and unre The ehiet agent justice. Like judicial discretion, this power 1s not but must be exercised along well-settled lines. in judicial lawmaking is analogy. The process consists choosing be = and selecting and develop- fween competing analogies of existing precept course, sciences, the professions, or other vocations. This right may not, 0 violation of laws, but must be h forbidden by law.” In re Leach, 134 Ind. 665, 668. See Lamer 2 Heisk. (Tenn 162. 465; Jeffers v. State, 33 Ga. 367. be pursued i ld to exist so long as not Ve Lanier, oFUNDAMENTAL CONCEPTIONS NS) CO ce Oo ing that which appears most in harmony with the rest of the legal system and most consonant with reason and justice. Sonm. Institutes oF Roman Law (Ledlie’s Translation), 2 ed. § 8. Having thus ascertained the rule of law, jurisprudence must may be worked out either by developing the consequences which it involves, or by developing the wider principles which 1t presup- poses. For one rule of law may involve a series of more specific rules of law; it may be a major premiss involving a series of next proceed to develop, or work out. its contents. A rule of law minor premisses. Or again, the viven rule of law itself may be the consequence of more general rules; it may be a minor premiss pre- supposing certain major premisses. The more important of these two methods of procedure is the latter, 7. e. the method by which, from given rules of law, we ascertain the major premisses which they presuppose. For having ascertained such major premisses, we shall find that they involve, in their logical consequences, a series of other legal rules not directly contained in the sources from which we obtained our rule. The law is thus enriched, and enriched by a purely scientifie method. When a given rule of law is so used as to lead us, by an inductive process, to the discovery of a major premiss, the ascertainment of new rules by means of the major premiss thus discovered is termed the ‘analogical ap- plication’ of the given rule of law. The application, then, of a principle (a major premiss) which is given, we call the method of inference; the application of a principle which we have found, we call the method of Analogy. The scientific process by means of which principles are dis- covered which are not immediately contained in the sources of law may be compared to the analytical methods of chemistry. It is in this sense that Jhering has spoken of a ‘juristic chemistry.’. Juris- prudence analyses a legal relation which is regulated by a rule of law into its elements. It discovers that amidst the whole new mass of legal relations which are forever emerging into new exist- ence from day to day—endless and apparently countless—there are, nevertheless, certain elements, comparatively few in number, which are perpetually recurring merely in different combinations. These elements constitute, in the language of Jhering, the ‘al- phabet of law.’ The common element, for instance, in every agree-POINTS OF CONTACT BETWEEN LAW AND MORALS oo ment. whether it be an agreement to purchase or to hire or to ereate a pledge-right, ete., is just the agreement, in other words, the expression of consensus. An exhaustive enumeration of the leval rules concerning sales must necessarily include certain rules bearing on this element in every contract of sale, viz. the expression of the concordant will of the parties. Thus from the legal rules concerning sales we eather certain major premisses or eeneral rules concerning this element of ‘agreement,’ which rules will according ly determine the requirements that are necessary to constitute an agreement, the effect of error, of conditions, or other collateral terms. and so forth. They are major premisses involving a count- less variety of other | val rules, which will assist us in fixing the conditions under which other agreements, Say, to hire, to deliver, to institute some one heir, and many others, are effectually com- S may be neces- pleted, subject, of course, to such modifications : Thus, in applying sitated by a ditt rent set | f major premisst Ss. the method of analogy to a rule of law, we are, at the same time, discovering’ the ineredi nts ot the legal r¢ lations. The method of analogy does not mean (as the lay mind is apt to imagine) the application of a elven rule of law to a leeal relation « f a some- e what similar kind. Such an analogy would be the very opposite of scientific jurisprudence. It is the application of a given rule not to a merely similar relation, but to the identical relation, in so far as the identical element (to which the civen rule had already as- sioned its proper place) is traceable in a legal relation which 1s apparently different. These, then, are the methods by which j the materials of the law, and filling up the urisprudence attains to a full knowledge ( blanks which it finds there, 1] The discovery of the elements which recur in every legal relation brings with it the discovery quirements of every legal relation. be either by Analogy, meee Dy the discovery the analysis of legal relations ; or by Inference, 7. e¢. by the practical moulds the whole into con yleteness. of rules of law which meet the just re- The mode of proceeding may of those elements and application of those elements and the synthesis of legal relations. It is not by the levislator, but by Lene eat ee el tec complexity ot human relations 1s reoulated. scientific jurisprudence, that the 1See Cardozo, The Nature of the Judicial Process; Pound, The Theory of Judicial Decision, 36 Harvard Law Rev. 641, 802, 940.40) FUNDAMENTAL CONCEPTIONS III. Interpre tation BLackstonF, Commentaries, I, 59-61. The fairest and most rational] method to interpret the will of the levislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable.* And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all. 1. Words are generally to be understood in their usual and most known signification ; not so much regarding the propriety of gram- mar, as their general and popular use. Thus the law mentioned by Pufendorf which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon. Again, terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “‘to the princess Sophia and the heirs of her body, being Protestants,” it becomes necessary to call in the assistance of lawyers to ascertain the precise idea ot the words ‘heirs ot he r body,” which, in a legal sense, comprise only certain of her lineal descendants. 2. If words happen to be still dubious, we may establish their meaning from the context, with which it may be of singular use to eee en eee compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of Parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with oa the subject, or that expressly relate to the same point. Thus when Sereno ee eta as the law of Kneland declares murder tO be felony without benefit of clergy, we must resort to the same law of England to learn what eee) the benefit of clergy is; and, when the common law censures simo- niacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony. . 3. As to the subject matter, words are always to be understood as having’ a regard thereto, for that is always supposed to be in the 1Clark, Practical Jurisprudence, 235-244: Austin. Jurisprudence (3 ed.) ( J 7 Columbia Law Rev. 379; Gray, Nature and Sources of the Law (1 ed.), §§ 370-399. (2 ed.) 170-189). Genv ? a | 1023-1036; Pound, Spurious Interpretation, Méthode d’interprétation en droit privé positif (2 ed.). TI, §§ 72-108. TI 177-187 ee ae §§POINTS OF CONTACT BETWEEN LAW AND MORALS ee | lator, and all his expressions directed to that en t. Thus. when a law of our Edward III forbids all ecclesiastical per sons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but, when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provi sions, we shall see that the I straint is intended to be laid upon such provisions only. 4. As to the effects and consequence, th rule is, that where words bear either nolieor a very absurd signification, if literally unde rstood, we must a little deviate from the received senst ot them. Therefore the Bolognian law, mentioned by Pufendorf, which enacted “that whoever drew blood in the streets should be st seve Ilda yieee was he ld aiter a lone cdi bate punished with the utm not to extend to the surgeon who opened the veln of a person that fell down in the street with a fit. 5. But, lastly, the most universal and effectual way of discover- ‘no the true meaning of a law, when the words are dubious, 1s by considering the reason and spirit of it; or the cause which moved the levislator to enact te Kor whi n this reason ceases, the law itself ought likewise to cease with it. An instance of this is olven in a case put by Cicero. or whoever was the author of the tr aties ascribed to Herennius. There was a law that those who in a storm forsook the ship should forfeit all property therein; and tha! ship and lading should belong entirely to those who stayed in it. 1 ihp In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who, by reason of his disease, was unable to get out and escape. By chance the ship came safe to port. The r, Now sick man kept possession and claimed the benefit of the law here all the learned agree, that the sick man is not within the rea- son of the law: for the reason of making it was, to olive encourage ment to such as should venture their lives to save the vessel; but this is a merit which he could never pretend to, who neither stayed in the ship on that account, nor contributed anything to its preser vation. From this method of interpreting laws by the reason of them, arises what we call equity, which is thus defined by Grotius: “‘the correction of that wherein the law (by reason of its universality) is deficient.” For, since in laws all eases can not be foreseen or e@xX- it is necessary that, when the general decrees of the law presst cl,42 FUNDAMENTAL CONCEPTIONS come to be applied to particular cases, there should be somewhere efinine those circumstances, which (had they Ss a power vested of d been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, lex non exacte definit, sed arbitrio boni virt permittit. Suarswoop’s Nore to the foregoing passage. What the learned commentator here says is certainly inaccurate, if it leads to the supposition that any other rules of interpretation are applied to statutes in courts of equity than in courts of law. On the contrary, herein equity follows the law. . . . What the commentator does mean, perhaps, is what is generally termed the equity of a statute, which is in reality a compendious mode of ex- pressing his fifth rule of interpretation. Those cases are said to be within the equity of a statute which, though not directly com- prehended by its language, are nevertheless within the intention of the lawgiver, reached by its reason and spirit. Gray, NATURE AND SouRCES oF THE Law (1 ed.) § 370. A fundamental misconception prevails, and pervades all the books as to the dealing of the courts with statutes. Interpretation is generally spoken of as if its chief function was to discover what the meaning of the Legislature really was. But when a Legislature has had a real intention, one way or another, on a point, it is not once in a hundred times that any doubt arises as to what its inten- tion was. If that were all that a judge had to do with a statute, interpretation of statutes, instead of being one of the most difficult of a judge’s duties, would be extremely easy. The fact is that the difficulties of so-called interpretation arise when the legislature Panett ote oe ee eee ee ee has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.\ CHAPTER II HISTORY OF THE COMMON LAW I. Tuer Common Law As A SYSTEM There are two great_systems ol law, the Roman or Civil Law and the English or Common lay. Roman law, beginning as the law of the «ty of Rome, became the law of the Roman Empire: and thus o! the ancient world, and eventually by absorption or reception from the twelfth t the eighteenth century, the law otf modern -continental Europe. ° It 1s now the foundation or a principal ineredient of the law in continental Europe, including Turkey; Scotland; Ce tral and South America; Quebec and Louisiana; and all Spanish, Portuguese, or Dutch colonies or countries settled by those peoples: \The common law, Germanié in origin, was developed by the-Enghsh courts trom the thirteenth to the nineteenth century, and has spread over the world with the English race. It now prevails in England and Ireland: the United Statés, except Louisiana; Canada, except Quebec; Australia; India, excep er Hindus and Mo- hammedans as to inheritance and family law d the principal English colonies except in South Africa, The standard work of reierence 1S Holdsworth, History of English Law (9 vols. 12s Maitland, History of English law before the reign 01 Edward I (2 vols 29d ed. 1898) is a masterly treatment ol the foundations. A brief ge eral sketch of the whole of English legal history whieh can be recom mended is Jenks, Short History ol English Law, 3d ed. ful collections of papers on particular topics are Select Essays on Ang] American Legal History, (3 vols. 1907-9) ; [ailtand, Collected Papers. (3 vols. 1911); Ames, Lectures on Legal History (1919). Valuable im troductions to legal history and ouides to the sources are Winfield, Chiet Sources of English Legal History (1925) and Holdsworth, sources and Literature of English Law (1925 Maitland, Constitutional History 01 England (1913) contains a good deal of legal history. Docror anp Srupent, Dialogue I, Chap. 2 Latin. 1523, Enelish version first printed in 1530). is taken three manner of ways. First, it 1s of England, dissevered from all l first print d in The common law taken as the law _of this realm other laws. And under this manner taken it is oftentimes argues in the laws of England, what matters ought of termined by the Common law, and what by the admiral’s court, or obligation bear date out ol right to be de- by the spiritual court: and also if an 4344 HISTORY OF THE COMMON LAW such other, it 1s said in the law, the realm, as in Spain, France, « pleadable at the Common law. and truth it is, that they be not Secondly, the Common law is taken as Bench, or of the Common Place: and it is s the king’s courts of_his . taken when a plea 7 " 7 - ] = ‘ ew y “AA ‘s removed out of antient demesne, tor that the land is frank-fee, and pleadable at the Common law. that is to say, in the king's And under this manner taken, court, and not in antient demesne. n Courts-Barons, it is oftentimes pleaded also in base courts, as the County, and the court of Piepowders, and such other, this matter or that, &e. ought not to be determined in that court, but at the Common law, that is to say, in the king’s courts, we. Thirdly, by the Common law 1s understood such things as were law before statute made in thatrpoint that is im question ; so that that poimt was holden for law by the general or particular cus- toms and maxims of the realm, or by the law of reason, and the law ot God. no other law added tO them by Statute, nor otherwise, as is the case before rehearsed in the first chapter, where it is said, re that at the Common law, tenant by the courtesy, and tenant in dower were punishable of waste, that is to say, that, before any statute of waste made, they were punishable of waste by the erounds and maxims of the law used before the statute made in that point. But tenant for term of life, one for term of years, were not punishable by the said grounds and maxims, till by the statute remedy was given against them; and therefore it is said, that at the Common law they were not punishable of waste. Ditton, Laws AND JURISPRUDENCE OF ENGLAND AND AMERICA, 155. Now the great fact which, as we approach this subject, meets our ‘ view, is that the common law (including in the phrase “common law,” as here used, the supplemental equity system of the Court ot Chancery which grew out of the common law and constitutes a part of it) underlies the whole system of American law and jurisprudence. The expression, “the gommon law,” is used in various senses: (a) sometimes in distmetion from statute law; (b) sometimes in distinction from equity law; and (c) sometimes in distinction from the Roman or civil law. I use it in this lecture in the latter sense. I do not stop to inquire how the common law came to be introduced here and adopted by us. I deal with theA THE COMMON LAW AS A SYSTEM 45 fact as it exists, which is that the common law is the basis of the laws of every state and territory of the union, with comparatively unimportant and gradually waning exceptions. And a most fortu- nate circumstance it is, that, divided as our territory is into so many states, each supreni within the limits of its power, a con mon and uniform general system of jurisprudence underlies d : , “is = : pervades then all 1d. THIS qt { SLAC ron he excellences o atl svstem. concerning which I shall presently speak My pres « i : : se : : point iS This: Phat the mere Tact that one < ic the same svstem « jurisprudence exists 1n % | of the s s is of itself of vast in portance, since 1f 1s a most powertul agency 1n promoting com mer lal, social, ant 1] llectual intercourst na 1 cement o the ; s : national unity. The history ol cou VY SYS mi) ne reate ol onvenlt \ under five heads: 1) Englis w before e Conauest. (2) the devel ment ort the commol!l ‘ (53) i¢ de elk 1D tr ¢ 1ILV, (4 tne W merchant, (5) the retor mel 9. Encuisu La ERO! ConQuES The best edition of the Ang Saxon Laws 1s Liebe 1ann, Gesetze dé Angelsachsen (3 vols. 19035-L' This forms the basis ot » latest Enelish editions by Attenberouch, baws—ot the—EKarhest—Eng ls} Kings (1922) and Robertson, Laws of th IKines of J vland trom KHdmund to Henry | (1925)-which contain all the legisiatio rut none « ie treatises Be of these editors have translated tl s rather rre¢ nto Enelish edition of Thorpe, Ancient Laws and Institutes o1 England, 2 vols. (1840 contains the treatises and a bald translation of the laws, Attenboro ih and Robertson both have excellent notes and indexes. For a short e@lossary of the Anglo-Saxon law-terms appearing in tne following’ extracts, sé below, p. 36. General introductions to Anglo-Saxon law are: 1 Pollock and Mait 4 land, 25-63; 1 Holdsworth, 3-30; 2 Holdsworth, 3-118; Adams, Constitu- tional History, 1-49; Pollock, Anglo-Saxon Law (8 English Historical Review, 239); Pollock, English Law before the Norman Conquest (14 Law Chadwick (various chapters now appearing in Quarterly Review, 291) ; in non-technical lan- the Cambridge Mediaeval History give summaries euage of Anglo-Saxon institutions) ; see also Henry, Forms and Sanctions of Anglo-Saxon Contraets (15 Michigan Law Review, 592, 639) ; Hazeltine, 10 Columbia Law Review, 608). Formal Contracts in Early English Law ( Pottock, Enauish LAW BEFORE THE Norman Conquest, 14 Law Quar. Rev. 291. For most practical purposes, the history of English law does not46 HISTORY OF THE COM MON LAW begin till after the Norman Conquest, and the earliest things which mode) n lawyers are strictly bound to know must be allowed to date only from the thirteenth century, and from the latter half of it rather than the former. Nevertheless a student who does not look further back will be puzzled by relics of archaic law which were not formally discarded until quite modern times, and he may easily be misled by plausible but incorrect explanations of them such as have been current in Blackstone’s time and much later. The extreme antiquities of our law may not often be re- quired in practice, but it is not safe to neglect them altogether, and still less safe to accept uncritical explanations when it does become necessary to consider them. From the Laws or Eruetsert (Kent, about 600 A. D.). [This and the succeeding extracts from the Anglo-Saxon laws are from Thorpe’s translation. | 33. If there be seizing by the hair, let there be L seaetts for bot. 34. If there be an exposure of the bone, let bot be made witl IIT shillings. 35. If there be an injury of the bone, let bot be made with LV shillings. 36. If the outerbone be broken, let bot be made with X shillings. 37. If it be both, let bot be made with XX shillings. 38, Tf a shoulder be lamed, let bot be made with X XX shillings. 39. If an ear be struck off, let bot be made with XII shillings. 40. If the other ear hear not, let bot be made with XXV shillings. 41. If an ear be pierced, let bot be made with III shillings. 42. If an ear be mutilated, let bot be made with VI shillings. Atle ar eye be (struck ) out, let bot be made with L shillings. 44. If a mouth or an eye be injured, let bot be made with XII shillings. 45. If the nose be pierced let bot be made with IX shillings. 46. If it be one ala let bot be made with III shillings. . 47. If both be pierced, let bot be made with VI shillings. 48. If the nose be otherwise mutilated, for each let bot be made with VI shillings. 49. If it be pierced, let bot be made with VI shillings. 50. Let him who breaks the chin-bone pay for it with XX shil- lings.ENGLISH LAW BEFORE THE CONQUEST 47 F1 For each of the four front teeth, V1 shillings; for the tooth which stands next to them, IV shillings; for that which stands next to that, LIL shillings ; and then afterwards, for each a shilling. 52. If the speech bi ‘njured XII shillings. If th collar bone ne broken, let bot he made with VI shillings. ~e<« 4 | 5 ber ] 1 ; 1 HS. Let him who stabs (anotner ) through an arm, Make pot ; : 1 7 : ; ; L4 an arm be broken, let him make bot with with VI shillings. VVI shillings. 54. Ifa thum! k off, X X shillings. Ifa thumb nail be off. let bot be made with IIT shillings. If the shooting (z. e. fore) fineer be struck off, let bot be made with VIII shillings. If the middle hneer b struck oft, let bot be made vith LV shillings. Gi the gold (i:.e. ring) finger be truck off. let bot be made with VI shillings. If the little finger be struck off, let bot be made with LIT shillings. bd, For every nail a shi ling I —_— I I 56. For the small ST dishgurs ment of the race, and for the greater, V1 shillings. th his fist on the nose, LI] shil- 57. If anyone strike another w1 lings. 58. If there be a bruise. a shilling; if he receive a right hand bruise, let him (the striker) pay a shilling. be black in a part not eovered by the clothes, ' 59. Lf the bruise let bot be made with XEROX scaetts. GOs LF it be covered by the clothes, let with XX seaetts. 61. If the belly be wounded let bot be made with XII shillings; ierced through, let bot be made with XX shillings. bot for each be made if it be ] From the SecuLAR ORDINANCE O! Cnrur (1016-1035). House-breaking and arson and open * theft and open morth and treason against a lord are, by the secular law, botless. Tables seem to have divided Thefts into Manifest t penalties to The Manifest had been pilfer- 1“The Laws of the Twelve and Non-Manifest, and to have the offence according as it fell under one head or the other. Thief was he who was caught within the house in which he who was taken while making off to a place of safety with the stolen to be put to death if he were condemned him freeman, they made him the bondsman of Non-Manifest Thief allotted extraordinarily differen ing, or goods; the Twelve Tables already a slave, and, if he was e property. The was he who was de- the owner of th pe jeye Corea ate eeteet a? 48 HISTORY OF THE COMMON LAW From the Laws or ALFRED (Wessex, 892-3 A. D.). We also command: that the man who knows his foe to be home- sittine fight not before he demand justice of him.* If he have such power that he can beset his foe, and besiege him within, let him keep him within for VII days, and attack him not, 11 he will re- main within. And then, after VII days, if he will surrender, and deliver up his weapons, let him be kept safe for XXX days, and let notice of him be given to his kinsmen and his friends. If, however, he flee to a ehureh, then let it be according to the sanctity of the chureh, as we have before said above. But if he have not sufficient power to besiege him within, let him ride to the ealdorman and beg aid of him. If he will not aid him, let him ride to the king before he fights. In lke manner also, if a man come upon his foe, and he did not before know him to be home-staying; if he be willing to deliver up his weapons, let him be kept for XXX days, and let notice of him be given to his friends, if he will not deliver up his weapons then he may attack him. If he be willing to surrender, and to deliver up his weapons, and anyone after that attack him, let him pay as well tected under any other circumstances than those described; and the old code simply directed that an offender of this sort should refund double the value of what he had stolen. In Gaius’s day the excessive severity of the Twelve Tables to the Manifest Thief had naturally been much mitigated, but the law still maintained the old principle by mulcting him in fourfold the value of the stolen goods, while the Non-Manifest Thief still continued to pay merely the double. The ancient lawgiver doubtless considered that the in- jured proprietor, if left to himself, would inflict a very different punish- ment when his blood was hot from that with which he would be satisfied when the Thief was detected after a considerable interval; and to this calculation the legal scale of penalties was adjusted. “ ‘he principle is precisely the same as that followed in the Anglo-Saxon and other Germanic codes, when they suffer a thief chased down and caught with the booty to be hanged or de- eapitated on the spot, while they exact the full penalties of homicide from anybody who kills him after the pursuit has been intermitted. These archaic distinctions bring home to us very forcibly the distance of a refined from a rude jurisprudence.’ Maine, Ancient Law, 379-380. 1**We decree and direct by this edict that he who intends to do damage to another, or to injure him, shall give him notice at least three days before, by a safe messenger.” Decree of the Diet of the German Empire at Niirnberg (1187). Procedure in local courts long retained traces of this idea; thus in the custom of Whitby (1185) “if any plea arises between burgesses, the plaintiff ought to ask at the defendant’s house three times that he do him right and whatever law requires. And if at his third asking the defendant will not make satisfaction, he may properly seek the town moot-hall, that right may be done.” (Selden Society, 1 Borough Customs, 89).ENGLISH LAW BEFORE THE CONQUEST 49 wer as wound, as he may do, and wite, and let him have forfeited his maegship. We also declare, that with his lord a man may fight without risk of lezal consequences, if anyone attack the lord; thus : le t 7 . | 7 may the lord fioht for his man. After the same wise, a man may fioht with his born kinsman, if a man attack him w notully, ex cept against his lord. That we do not allow. And a man may ficht without legal consequences, if he find another with his law- ful wife, within closed doors, or under one covering, or with his lawfully born daughter, or with his lawfully born sister, or with his mother, who was g2iven to his tather as his awtul wite. From ALFRED AND GutTurum’s PrEace (A. D. 880-890 2. Then is this: If aman be slain, we estimat - all equally cd ir, Enelish and Danish, at viii half marks of pure gold. a ane : . 1 . “ ; . ; : Oo. And a kine s theon be accused OT Manslay1lne, lt ue adare to elear himself. let him do that with xi king’s thegns. 11 any one accuse that man who IS OF LESS aegre than ne Kil oS thee] let him clear himself with xi of his equals and with one king's theoen. And so for every suit which may be for more than iv mancuses. And if he dare not, let him pay for it thre fold as it may be valued. From the Laws or ATHELSTAN (about 930). 12. And we have ordained that no man buy any property out of port over xx pence; but let him buy there within, on the witness of the portreeve, or of another unlying man; or further on the wit- ness of the reeves at the folkmote. From the:“OrpINANCE oF THE Hunprep” oF Epnear (950-979). t. And we have ordained, concerning unknown eattle; that no yne should possess it without the testimonies of the men of the nundred. or the tithineman, and that he be a well-trusty man ; and sinless he have either of these, let no vouching to warranty be al- lowed him. From the Secutar OrpINANCE OF Enear (990 975). @apy lee) cbbissthenyashret what I will: that every man y@hteous be worthy of folk right, as well poor as rich: and that 1 the bot dooms be judged to him; and let there such remission 10 as mav be becoming before God and tolerable before the world. {5O HISTORY OF THE COMMON LAW Cap. 3. And let the judge who judges wrongly to another, pay to the king 120 shillings as bot, unless he dare to prove on oath that he knew it not more rightly; and let him forfeit for ever his thaneship unless he will buy it of the king so as he is willing to allow him. And let the bishop of the shire exact the bot into the kine’s hands. Cap. 6. And let the hundred gemot be attended as it was before fixed: and thrice in the year let a burh-gemot be held, and twice a shire gemot; and let there be present the bishop of the shire and the ealdorman, and there both expound as well the law of God as the secular law. Pottock, EneuisH LAw BEFORE THE Norman Congqusst, 14 Law Quar. Rev. 291, 292. The courts were open air meetings of the freemen who were bound to attend them, the suitors as they are called in the terms of Anglo-Norman and later medizyval law; there was no class of pro- fessional lawyers; and there were no judges in our sense of learned persons especially appointed to preside, expound the law, and cause justice to be done; the only learning available was that of the bishops, abbots, and other great ecclesiastics. This learning, in- deed, was all the more available and influential because before the Norman Conquest, there were no separate ecclesiastical courts in England. There were no clerks, nor apparently, any permanent officials of the popular courts; their judgments proceeded from the meeting itself, not from the presiding officer, and were regularly preserved only in the memory of the suitors. From W. J. Corsperr in 3 Cambridge Mediaeval History, 405— 408. One question, however, of considerable importance still re- mains to be considered, and that is, had the landlords as a class judicial authority over their tenants merely as landowners? In other words, could they set up petty courts on their estates, similar to the manorial courts of a later day, and compel their men to try their disputes in them, at any rate, in matters of civil justice, provided the cases did not involve persons who were tenants under other lords? ‘The evidence at our disposal is perhaps too fragmen- tary and too lacking in precision to enable us to say how matters stood in all parts of England; but two things at any rate seemENGLISH LAW BEFORE THE CONQUEST Dik: clear. First, there certainly was a very considerable number of lords in Edward’s day who were holding their own private courts or hallmoots in competition with the national hundred moots; and secondly, there was no general law or custom as yet recognized, \ hich f ntitled landlords to hold such courts, but in all eases, where 7 allmoots had sprung up, the right to hold them rested on some | special grant from the Crown and was in the nature of a franchise or special privilege. The conclusion that ha } 1 } llmoots had become fairly common institutions by 1050, is not really open to question. 1 fT [If we inquire into their origin we do not find that their exist ence can be put down chiefly to Edward’s being a complaisant is more ambitious subjects by offering ruler inclined to placate them bribes in the form « judicial concessions. Doubtless, Ed- ward was rather lavish with his orants of sake and soke, and many t his activities in this di Enelish writs have survived to testify t rection; but there is plenty of evidence to show that he was no i1n- novator and only followed the practice of his predecessors. For in this connection we have only to turn to Knut’s laws to be con vineed that private sokes were plentiful in his day. How much further back it would be possible to trace these franchises, were documents of Acthelred’s reign available, it is impossible to say; but there seems no reason for supposing that Knut was an innovator. Like all rules he more often than not followed precedents, and after all he had excellent precedents for created in the sokes which Edgar had set up in such sokes as he The really obscure problem is not so much the the tenth century. origin of the larger franchises eranted to the magnates, as the origin of the practice of allowing quite small men to exercise sake and soke over petty estates. As to these we can never hope to at- tain any certainty. .. .- Extracts from Portocx, Enexish LAw BEFORE THE NorRMAN Conevrst, 14 Law. Quar. Rev. 291. Rioid and cumbrous as Anglo-Saxon justice was in the things it did provide for. 1t was, to mocern eyes, strangely defective 1n its Among the most important functions of compelling the attendance of parties final judgments and of inter- lack of executive power. courts as we know them is and enforcing the fulfillment both ot locutory orders dealing with the conduct of proceedings and the: 52 HISTORY OF THE COMMON LAW like. Such things are done as of course under the ordinary author- ity of the court. . . . But this reign of law did not come by nature: it has been slowly and laboriously won. Jurisdiction began, it seems, with being merely voluntary, derived not from the authority of the state but from the consent of the parties. People might come to the court for a decision if they agreed to do so. They were bound in honor to accept the result; they might forfeit pledges deposited with the court; but the court could not compel their obedience any more than a tribunal of arbitration appointed at this day under treaty between sovereign states can compel the rulers of those states to fulfill its award. Angio-Saxon courts had got beyond this most early stage, but not very far beyond it. The only way to bring an unwilling adversary before the court was-to-take something of his as*security till he would attend the demand; ? and practically the only things that could be taken with- out personal violence were cattle. Distress in this form was prac- ticed and also regulated from a very early time. It was forbidden to distrain until right had been formally demanded. . . and refused. Thus leave of court was required, but the party had to act for himself as best he could. If distress failed to make the defendant appear, the only resource left was to deny the law’s pro- tection to the stiff-necked man who would not come’to be judged by law. He might be outlawed, and this must have been strong enough to coerce most men who had anything to lose and were not strong enough to live in rebellion; but still no right could be done to the complainant without his submission. The device of a judg- ment by default, which is familiar enough to us, was unknown, and probably would not have been understood. Final judgment, when obtained, could in like manner not be directly enforced. The successful party had to see to gathering the “fruits of judgment,” as we say, for himself. In ease of continued refusal to do right, he might take the law into his own hands. in 1**Among the various modes of terminating the differences between nations by forcible means short of actual war, are the following: l. By layine embargo or sequestration on the ships and goods or other property of the offending nation found within the territory of the injured state. 2. By taking forcible possession of the thing in controversy. . . . 3. By exercising the right of vindictive retaliation. . . 4. By : an . making reprisals upon the ; persons and things belonging to the offending nation until a satisfactory reparation is made for the alleged injury.” Wheaton, International Law, § 290. On distress in archaic legal systems, see Maine, Early History of Institutions, Leets. IX and X,ee ENGLISH LAW BEFORE THE CONQUEST or fact wage war on his obstinate opponent. The ealdorman’s aid, and ultimately the king’s, could be invoked in such extreme cases as that of a wealthy man, or one backed by a powerful family, setting the law at open defiance. But this was an extraordinary measure, analogous to nothing in the regular modern process of la W. From the Laws or Ine (about 690 Cap. 9. Lf any one take revenge before he demand justice, let him cive up what he has taken to himselt and pay (the damage done) and make bot with 30 shillings. From the Laws or Cnut (1027-1034). Cap. es And let no man take any distress. either in the shire or out of the shire before he has thrice demanded his right in the hundred. If at the third time he have no justice, then let him go at the fourth time to the shire-gemot, and let the shire appoint him a fourth term. If that then fail, let him take leave either trom hence or thence, that he may seize his own. From the Juprcra Civiratis LuNDONIAE oF ATHELSTAN (about Q3() ) Cap. viii. 2. And if it then should happen that any kin be so strone and so great, within land or without land . . . that they refuse us our right, and stand up in defence of a thief, that we all of us ride thereto with the reeve within whose manung it From the “OrpINANCE OF THE HunpreEpD” or Ep@ar (950-979). 7. In the hundred, as in any other gemot, we ordain that folk- ‘t shall be fulfilled. And he who shall break that term, unless 1t he by his lord’s decree, let him make bot with xxx shillings and on right be pronounced in every suit, and that a term be fixed when the day fixed fulfill that whieh ‘he ought to have done before. 3. And the man who neglects’ this and denies the doom of the hundred. and the same be afterwards proved against him, let him pay to the hundred xxx pence ; and for the second time !x pence, half to the hundred, half to the lord. If he do soa third time, let him pay half a pound ; for the fourth time, let him forfeit all he54 HISTORY OF THE COMMON LAW owns and be an outlaw, unless the king allow him to remain in the country. From the Laws or ATHELSTAN (about 930). 12. If anyone when thrice summoned fail to attend the gemot, let him pay a penalty to the king, and let it be announced seven days before the gemot is to be. But if he will not do right nor pay the penalty, then let all the chief men belonging to the burh ride to him and take all that he has and put him in pledge. But if anyone will not ride with his fellows, let him pay penalty to the king. CasE oF EHADWINE AGAINST EHANWENE, BEFORE THE CouNTY Courr ar AyLtron. Essays in Anglo-Saxon Law, 365 (prior to 1033). Here is made known in this writing that a shire-gemot sat at Aylton in King Cnut’s day. There came Bishop Aethelstan, and Ealdorman Ranig, and Eadwine (son) of the ealdorman, and Leofwine, son of Sulfsig, and Thurkil White; and Tofig Proud came there on the king’s errand; and there was sherift Bryning, and Aegelweard of Frome, and Leofwine of Frome, and Godwin of Stoke, and all the thanes in Herefordshire. Then came there Eadwine son of Eanwene, faring to the gemot, and made claim against his own mother for a piece of land; namely Welling- ton and Cradley. -Then asked the bishop who was to answer for his mother; then answered Thurkil White and said that it was his part (to do so), if he knew the case. As he did not know the ease, they appointed three thanes from the gemot, who should ride where she was; namely, at Fawley; these were Leofwine of Frome. and Aegelsie the Red, and Winsie Shipman. And when they came to her, then asked they what tale she had about the lands which her son sued for. Then said she that she had no land that be longed to him in anyway, and she was vehement tly angry with her son, and called her kinswoman, Leofled, Phurkil’ Ss wife, to her, and said to her before them thus: Here sits Leé fled, my kinswoman, whom I grant both my. land and my gold, both raiment and garment, and all that I own, after my day. And she afterwards said to the thanes: Do thanelike and well. Declare my errand to the gemot before all the good men, and make known to them whom I have granted my land to, and all my property; and to my son nothingENGLISH LAW BEFORE THE CONQUEST yey whatever: and ask them to be witness to this. And they then did So, rode to the gvemot, and made known to all the eood men what she had laid on them. Then Thurkil White stood up in the gemot and asked all the than SU olve his wite el ar the lan ds that her kinswoman granted her, and they did so. And Thurkil rode then to Saint Aethelbert’s minster, by leave and witness of the whole people, and caused (this) to be recorded in a church book. GLOSSARY Bot—Composition; “amends; reparation; Lat. emenda.” (Davis’s 9th ed. of Stubbs’s Charters) Burh—Borough. Castle. Fortified place. 1 Burhbryce— Breach of the peace of a castle or fortified house. Ceorl—Churl. A common tree man. Clear himself—To disprove an accusation by the appointed mode of trial— ordeal or compurgation. Edor bryce —Breach of an enclosure. Fah man—Outlaw. One who is not in the peace. Folk mote Assembly of the tree men 1n the county court. Frith—Peace. Gafol gelda—One who pays Gebur—Peasant. A rustic of the lowest free rank. Gemot—Any temporal (as contrasted with ecclesiastical) court, that is, yf 1200 shillings; six- assembly of the free men. Twelve-hynde man, the rank of a wer Hynde hyndeman, the rank of a wer of 600 shill JQ f Manune—District under the jurisdiction of a reeve. Morth Murder. Wer—The pecuniary estimation of a man, by which the value of his oath and the sum to be paid for his death were determined. A sum paid to the kindred of a person killed, to buy off their vengeance. Wita—One of the great men of the realm who sits in the great council to advise the king. Wite—A fine. A payment by way king to buy off his vengeance for an affront to him. yf punishment. A payment to the 8 Tue DEVELOPMENT OF THE Common Law vu. (a) The King’s Peace See Howard, The King’s Peace and the Local Magistracy ; Inderwick, The King’s Peace. From the Laws or ErHetserr (600). Cap. 2. If the king call his people to him and any one there doD0 HISTORY OF THE COMMON LAW them evil, let him compensate with a two-fold bot and fifty shill- ines to the king. Cap. 3. If the king drink at any one’s house, and anyone there do any offense, let him make two-fold bot. Cap. 5. If a man kill another in the king’s mansion, let him make bot with 50 shillings. Cap. 8. The fine for breach of the king’s protection 50 shillings. Cap. 13. If a man slay another in an eorl’s enclosure, let him make bot with 12 shillings. Cap. 15. The fine for breach of an eorl’s protection 6 shillings. Cap. 17. If anyone be the first to make an inroad into a man’s enclosure, let him make bot with 6 shillings; let him who follows, with 3 shillings; after, each a shilling. From the Laws or WrintTrRAEp (Kent, 695). Cap. 2. That the fine for breach of the protection of the church be 50 shillings, the same as the king’s. From the Laws or Ine (about 690). Cap. 6. If anyone fight in the king’s house, let him be liable in all his property, and be it in the king’s doom whether he shall or shall not have life. If any one fight in a minster, let him make bot with one hundred and twenty shillings. If any one fight in an ealdorman’s house, or in any other distinguished wita’s, let him make bot with LX shillings, any pay a second LX shillings as wite. But if he fight in a gafol-eelda’s house, or in a eebur’s, let him pay CXX shillings as wite and to the gebur VI shillings. And though it be fought on mid-field, let one hundred and twenty shil- ings be given as wite. But if they have altercation at a feast. and one of them bear it with patience let the other give XXX shillings as wite. From the Laws or Aurrep (about 890). Cap. 5. We also ordain to every church which has been hallowed by a bishop, this frith;? if a fah-man flee to or reach one, that for a serious hindrance to the ages; it was much restricted abolished until the early 18th century. See Thornley, The destruction of Sanctuary (Tudor cndics pre- sented to A. F. Pollard, 1924) and Pike. History of Crime. 1The enormous development of sanctuaries was enforcement of the law throughout the middle under the Tudor monarchs but not finallyseven days no one drag him out. him be liable in the king’s fine for breach of his protec ehurch-frith:-more if he there commit more wrong, if, despite of hunger, he can live; unless he fight his way out. If the brethren have further need of their church, let them keep him in another house. and let not that have more doors than the church. Let the church-ealdor take care that during this term no one give him food. If he himself be willing to deliver up his weapons to his foes, let them ke p him xxx Lays, and | n give not ot him to his kinsmen. It is also chure PUGS Mah See: church for any of those offenses, whic! had not been b re revealed, and there confess himself in God’s name, be it held forgiven. He who steals on Sunday, and at Yule, or at Easter, or on Hols Thursday, and on Rogation days; for each of these we will that the bot be two-fold. as during Lent-tfast. and he be taken; be it m the king’s doom, eith r death, or life, as he may be willing to grant him. It he escape, and be taken again let him pay for himself according to his ver-gild, and make bot for the ottense. as well wer as wite, according as he may hé wrought. Cap. 15. If aman fight before an < rchbishop or draw his weap- On, let him make Dot with one hundr¢ cl and htty shillings. If be fore another bishop or an ealdorman this happens, let him make bot with one hundred shillings. Cap. 38. If any man fight before th kine’s ealdorman in vemot. let him make bot with wer and wite as it may be right; and « ] before this exx shillings to the ealdorman as wite. [If he disturb the folkmote by drawing his weapon, ¢xx shillings to the ealdor man as wite. Lf aught of this happen before a king’s ealdorman’s junior, or a king’s priest, XXx shillings as wite. Cap. 40. The king’s burh-bryce shall be exx shillings. An arch bishop’s ninety shillings. Any other bishop’s, and an ealdorman’s, A twelve-hynde man’s, xxx shillings. A six-hynde A ceorl’s edor-bryce, v shillings. If aught in Lent fast, let the bot be ix shillings. man’s, xv shillings. of this happen when the fy rd is out, or 1 Lent put down holy law among the people two-fold. If anyone 1 without leave. let him make bot with cxx shillings. 1 See Decree of the Empero1 Henry I\ Concerning a Truce of God (1085). Henderson, Historical Documents of the Middle Ages, 208.58 HISTORY OF THE COMMON LAW From the Laws or Eruerrep (about 1000). II. Cap. 6. If the frith breach be committed within a burh, let the inhabitants of the burh themselves go and get the murderers living or dead, or their nearest kindred, head for head. If they will not, let the caldorman go; if he will not, let the king go; if he will not, let the ealdordom lie in unfrith. From the Srcutar Dooms or Cnut (between 1027 and 1034). Cap. 83. And I will that every man be entitled to immunity from molestation to the gemot and from the gemot, except he be a notorious thief. From the Laws or ErHEetrep (about 1008). VI. Cap. 18. Be every church in the peace of God and of the king, and of all Christian folk. From the Legrs Epwarpr Conressoris. (Written between 1130 and 1135 as a political pamphlet; it is therefore of no value for Edward’s reign 1043-1066. The present passage may be taken as a twelfth-century view of the growth of the king’s peace. ) 12. The peace of the king is of many kinds. One given by his own hand, which the English call kinges hand sealde grith. Another of the day on which first he was crowned. This lasts eight days. At the birth of our Lord, eight days, and eight at Kaster, and eight at Whitsunday. Another is given by its special writ. Another which the four highways have: namely, Watline- strete, Fosse, Hikenildstrete, Ermingstrete, of which two stretch out in the length of the kingdom and two in the breadth. An- other which the waters have, by the navigation on whieh, from various places, food is brought to the cities and boroughs, This peace, however, of his own hand, of the days of his coronation, and of the writ, is under the law of one penalty. In like manner the four highways and the great waters in regard to attack. But if any work be built let it be destroyed and a half be @iven as a recompense. Whoever has broken the peace in the eighteen hundreds of the Danelag, his body also\is at the merey of the king, by the Jaw of England his wer, that is his price, and the | recompense for the slaying of those slain he shal] pay to the lords of those slain. The recompense for slaying a serf or bondmanTHE KING’S PEACE in the Danclag is twelve ora; in the case of freemen, three marks. By the English law to the king or archbishop, three marks for their men; to a bishop of the shire, to a nobleman of the shire, or to the steward of the king, twenty solidarii; to the other barons, ten solidarii. Let him make restitution to the parents or prepare for war. Whence the English had a saying: Bicge spere of side other bere. which means, either buy from them that the spear be covered up, or bear it. But let the peace of the four highways and ot the great waters, placed in the oreater judgment of penalties which we have above mentioned, be held for assault. And if mills, fisheries or any other things whatever be prepared for de- stroying the freedom of them, let these things be destroyed, the roads and waterways repaired and a recompense to the king shall not be forgotten. Other roads from city to city, from borough to borough, by which men travel for selling their wares or other business of their own, are under the law of the shire. And it anything be built for their disturbance, let it be pulled down to the ground and the ways repaired, and according to the law of the shire. to the sheriff and his lieutenant let restitution be made. In like manner in regard to smaller navigable streams with those things that are necessary to cities and boroughs, namely, woods and the rest. They shall be under the law of the smaller roads in regard to penalties. Tue Mvurper Fine, As DESCRIBED IN DIALOGUS DE SCACCARIO, rise In the primitive condition of the realm just after the conquest, the survivors of the English used to set ambushes for those of the hated Norman race, and everywhere in woods and remote places seized the opportunity of secretly strangling them. So in revenge finally hit upon this expedient, that for this, the kines . Norman has been found slain (there every hundred in which ¢ being no clue to the eulprit), should be condemned in a heavy sum of money to the fise. Extracts from Potiock, Tur Kine’s PEACE, Oxford Lectures, 69. First. only the four roads are the king’s; then every common road which leads to the king’s city, borough, portance must, sooner or later, answer eastle or haven; and as most roads of any 1m60 HISTORY OF THE COMMON . LAW this description if followed far enough, the king’s highway came to be, as it now is, merely a formal or picturesque name for any public road whatever. As late as the fourteenth century, however, it was an opinion still held by some that not every common road was royal, insomuch that the soil and freehold of a common road could be vested in an individual owner only if it was not via regia. The very survival of the term “the king’s highway” shows that the idea of peculiar legal sanctity clung about highways in popular imagination long after they had ceased to be more under the kiny’s peace than any other English ground. After the Conquest, then, the various forms in which the king’s special protection had been given disappear, or rather merge in his general protection and authority, for the details that occur in the compilations bearing the names of Henry the First and Edward the Confessor, welcome as they are by way of supplement to earlier documents, are mere echoes of traditions no longer living. The king’s peace is proclaimed in general terms at his accession. But, though generalized in its application, it still was subject to a strange and inconvenient limit in time. The fiction that the king is everywhere present, though not formulated, was tacitly adopted ; the protection once confined to his household was extended to the whole kingdom. The fiction that the King never dies was yet to come. It was not the peace of the Crown, and authority having continuous and perpetual succession, that was proclaimed, but the peace of William or Henry. When William or Henry died, all authorities derived from him were determined ( r suspended ; and among other consequences, his peace died with him. What this abeyance of the king’s peace practically meant is best told in the words of the Chronicle. which says upon the deauh-or Henry I (anno 1135): “Then there was tribulation soon in the land, for every man that could forthwith robbed an- other.” Order was taken in this matter (as our English fashion is) only when the inconvenience became flagrant in a particular ease. At the time of Henry III’s death his son Edward was in Palestine. It was intolerable that there should be no way of enforcing the king’s peace till the kine had come back to be erowned: and the great men of the realm. by a wise audacity, took upon them to issue a proclamation of the new kine’s name forthwith. This good precedent being once made. the doctrine61 - . ] 1] Suspense was never aiterwards 7 “4 : ee ; ; 1 \\ Salcdl that the KING Ss peace and protection had become the established right of « very peace able sul je t. Nevertheless a trace OT ti archaic ideas persisted as li no as the art of common law ] I o tself. The rieht was to be enjoyed only on condition it being formally demanded. In ord r to give the kine’s courts risdiction of a plea of trespass 1€ was lit lful to imsert in thi rit the words vi ef armis, which imported a breach of the peace; Ct Was usual. it not necessary, also tO add expre ssly the words contra pacem nostram. Without th all eation ot fi ret and arms } ! the writ was merely “vicountiel,” that is, the sheriff did not return » The Supt rior Court, but had to determine the matter in the County Court. By so many steps and transformations did COME possible for Lambarde and Blackstone arter him, to s uneonselous inversion or the historical! OTQeE OL GEVerT ment, and as if the matter were in itself too obvious to need explanation: (“The king’s majesty is, by his office and dignit ro 1, the principal conservator or the peace within all his do ee : ; . 1 minions; and may give authority to any other to see the peace is y ] 1 } ° a . ] kept, and to pyggsh such as break it - hence it is usually called (b Thi Kinds Writ When the king was applied to for justice, or desired to vindieate his authority, ne issued his writ to tne sheriff or some other suitable person directing what was to be done. In ancient times executive and judicial functions were not distinguished. The king’s writ was used for all pur poses connected with the business of administration, the writs in judicial proceedings originally being in no way-different from those in purely ad ministrative affairs. Gradually a regular set of writs for judicial proceed- ines erew up, which in time became fixed in form and determined the scope and course of relief in the king’s courts. From 2 Hotpsworrnu, Hisrory or EnerisH Law, 171-172 The Anglo-Norman writs are documents very similar to the Anglo-Saxon writs. In fact their form shows that they are the same documents translated into Latin. What is new is the much ereater use made of them, owing to the increase of the royal power which had come with the Conquest. It is not therefore surprising62 HISTORY OF THE COMMON LAW to find that these writs are like the Anglo-Saxon writs in the fact that they take the form of executive orders. As Maitland pointed out (Forms of Action, 319-320) some of the earliest of these writs, such as the writ of right and the writ of debt, “are not in the first instance writs instituting litigation.” Like the Roman interdict, they simply contain a command that the person to whom they are addressed shall give up the land which the demandant alleees he has taken from him, or shall pay the sum which the plaintiff alleges to be due. ‘Only in case of neglecting to obey this command is there to be any litigation.”” Thus the cause of action is not simply the withholding of the land or the money, but the withholding of it in defiance of the royal command. It is this defiance of the king’s command which makes the wrong of withholding the land or the money redressible in the king’s court. ‘In the language of the old English laws there has been an ‘overseeness or overhearness’ of the king which must be amend- ed; the deforciant of land or of a debt has not merely to give up the land or pay the debt, he is at the mercy of our lord the king and is amerced accordingly.” As the king’s court increased in strength, and royal justice came to be more and more common, this theory on which its intrusion was once justified, dropped out of sight. . . . Obviously, as the forms of these writs become fixed, they will tend to be regarded, not as royal commands to be literally obeyed, but merely as recognised modes of begin- ning litigation. Aspor or Sr. Epmunp y. Ansor or PrrrrsoroveH (reign of William I). Translated from Bigelow, Placita Anglo-Nor- mannica, 32. William King of England to the Abbot of Peterborough, Greet- ing: I command and require you that you permit the Abbot of St. Edmund to receive sufficient stone for his ehureh, as he has had hitherto, and that you cause him no more hindrance in draw- ing stone to the water, as you have heretofore done. Witness the Bishop of Durham. Tur Axpror or ABincpon v. Men or Sranton (1105 or 1107). r . . * . ranslated from Bigelow, Placita Anglo-Normannica. 89. Henry, King of England, to Nigel of Oilly and William Sheriff of Oxford, Greeting. I command you that you do full right toTHE KING’S WRIT the Abbot of Abingdon concerning his sluice which the men of Stanton broke, and so that I hear no more complaint thereof for defect of right, and this under penalty of ten pounds. Witness Ralph the Chancellor, at Westminster. Appor Faritius v. JoRDAN DE SACKVILLE (about 1108). Trans- lated from Bigelow, Placita Anglo-Normannica, 99. Henry King of England to Jordan de Sackville, Greeting. I command you to do full right to Abbot Faritius and the church of Abingdon concerning the land which you took from them, which Ralph of Cainesham gave to the church in alms; and unless you do this without delay, 1 command that Walter Giffard do it, and if he shall not have done it, that Hugh of Bocheland do it, that I may hear no complaint thereof for defect of right. Witness, Goisfrid of Maegnavill, at Woodstock. GLANVILL, TREATISE ON THE Laws AND CUSTOMS OF THE KING- pom oF EncGianp (between 1187 and 1189). Beames’s translation. Book I, chap. V. When any one complains to the king, or his justices, concerning his Fee, or his Freehold, if the complaint be such as be proper for the determination of. the King’s Court, or the King is pleased that it should be decided there, then the party complaining shall have the following writ of summons. Chap. VI. The King to the Sheriff, Health. Command A that, without delay, he render to B one hyde of land, in such a vill, of which the said Bb complains that the aforesaid A hath deforced him: and unless he does so, summon him by good sum- moners. that he be there, before me or my Justices, in crastino nost octabas clausi Paschae at such a place, to show wherefore he has failed: and have there the summoners and this writ. [He then sets forth and explains some twelve other writs issued in the king’s name, marking various stages in the litigation, ending with the following: | Book II, chap. XX. The King to the Sheriff, Health. I com- mand you that without delay, you deliver possession to N of one hyde of land, in such a vill, which he claims against R of which the said R put himself upon my assise, because the said N has recovered that land in my Court by a recognition.64 HISTORY OF THE COMMON LAW Biackstonk, CommeEntariss, III, 272. First, then of the original, or original writ: which is the be- einning or ee An oe the suit. When a person hath received an injury, and thinks it worth his while to demand a satisfaction for it, he is to’ consider with himself, or take advice, what redress the law has given for that injury; and thereupon is to make ap- plication or suit to the crown, the fountain of all Juste for that particular specific remedy which he is det CC rminecl « - advised to pursue. As, for money due on bond, an action of d ee for goods detained without force, an action of detinue or trover; or, if taken with force, an action of trespass v2 et armis; or to try the title of lands, a writ‘of entry, or action of trespass in ejectment; or tor any consequential Injury rece ived, a special action on the ease. To this end he is to sue out, or purchase by paying the t stated fees, an original, or original writ, from the court-of chan- cery, which is the officina justitiae, the shop or mint of justice, wherein all the king’s writs are framed. It is a mandatory letter from the king, on parchment, sealed with his great seal, and directed to the sheriff of the county where injury is committed, or supposed to be committed, requiring him to eommand the wrong-doer or party accused either to do justice to the complain- ant or else to appear in court and answer the accusation against him. Whatever the sheriff does in pursuance of this writ, he must return or certify to the court of common pleas, together with the writ itself; which is the foundation of the jurisdiction of that court, being the king’s warrant for the judges to proceed to the determination of the cause. For it was a maxim introduced by the Normans, that there should be no proceedings in common pleas before the king’s justices without his original writ; because they held it unfit that those justices, being only the substitutes the erown, should take cognizance of anything but what was thus expressly referred to their judgment. However, in small actions below the value of forty shillings, which are brought in the court baron or county court, no royal writ is necessary; but the foundation of such suits continues to be (as in the times of the Saxons) not by original writ, but by plaint; that is, by a private memorial tendered in open court to the judge; aencin the party injured sets forth his cause of action: and the judge is bound of common right to administer justice therein, withoutTHE KING’S WRIT any special mandate from the king. Now, indeed, even the royal writs are held to be demandabl of common right, on paying the usual fees; for any delay in the granting them. or settine- an unusual or exorbitant price upon them, would be’a breach of maona carta @. JY. “nulla pen [i Mus, nully neqgabin Us aut duf- rere HLS, justitiam vel rectum.” he literature on the subject is immense, and much of it is teehnical and sometimes controversial. General sketches of Roman and Canon Law (t two are inseparable for historical purposes) are Vinogradoff, Roman Law in Mediaeval Europe, and Hazeltine, in 5 Cambridge Mediaeval History. The growth of the Corpus Juris Canonici is summarised in most continental legal histories, e. g. Viollet, Histoire du Droit Civil Francais, Esmein, Cours Blémentai d’ Histoire du Droit Franeais (ed. Génestal) ete. The nearest approach to a general study of Church and State relations in England is Makower, Constitutional History of the Chureh of England. Of specia legal interest 1s Uakley, Kinelis Pent tial Discipline and Anglo-Saxon Law in their joint Influence (Columbia Studies in History, etc. vol. 107 no. 2). Maitland, Roman Canon L: in the Church of England, is a set of studies on disjointed subjects, large! in controversy with Stubbs’ paper (which is now reprinted in Sele¢ Essays, and.must be read with reserve); Maitland, in turn, has come for some eriticism. Fer the relation of Canon Law to English medie\ commereée, see 2 Ashl V, EKeonomic History and Theory, 377-470. Extracts from Mairianp, Protoagur ro A History or ENGLIsH Law, 14 Law Quar. Rev. 138, 14, 20, 26. a : ] lables, were consciously In the year 200 six centuries‘and a half of definite legal history, if we measure only ‘from the Twelv summed up in the living and growing body of the law. Dangers lay ahead. We notice one in a humble quarter. Certain religious societies, congregations (ecclesiae) of non conformists, have been developing law, internal law, with ominous rapidity. We have ealled it law, and law.it was going to be; but as yet it was, if the phrase be tolerable, unlawful law, for these societies had an illegal, if not a criminal purpose. Spasmodically the imperial law was enforced against them; at other times the utmost that they could hope for from the state was that in the guise of “benehit and burial societies” they would obtain some protection for their communal property. But internally they were developing what was going to be a system of constitutional and governmental law, oO66 HISTORY OF THE COMMON LAW which would endow the overseer (episcopus) of every congrega- tion with manifold powers. Also they were developing a system of punitive law, for the offender might be excluded from all par- ticipation in religious rites, if not from worldly intercourse with the faithful. Moreover, these various communities were becoming united by bonds that were too close to be federal. In particular, that one of them which had its seat in the capital city of the empire was winning a preéminence for itself and its overseer. About the year 500 there was in Rome a monk of Seythian birth who was laboring upon the foundations of the Corpus luris Canonici. He called himself Dionysius Exiguus. He was an expert chronologist and constructed the Dionysian cycle. He was collecting and translating the canons of eastern councils; he was collecting also some of the letters (decretal letters they will be called) that had been issued by the popes from Siricius onwards (384-498). This Collectio Dionysiana made its way in the West. Some version of it may have been the book of canons which our Archbishop Theodore produced at the council of Hertford in 673. A version of it (Dionysio-Hadriana) was sent by Pope Hadrian to Charles the Great in 774. It helped to spread abroad the notion that the popes can declare, even if they cannot make, law for the universal church, and thus to contract the sphere of secular jurisprudence. Slowly and by obscure processes a great mass of ecclesiastical law had been forming itself. It rolled, if we may so speak, from country to country and took up new matter into itself as it went, for bishop borrowed from bishop and transcriber from transcriber. Oriental, African, Spanish, Gallican canons were collected ito the same book, and the decretal letters of later were added to those of earlier popes. Of the Dionysiana we have already spoken. Another celebrated collection seems to have taken shape in the Spain of the seventh century; it has been known as the Hispana or Isidoriana, for without sufficient warrant it has been attributed to that St. Isidore of Seville (ob. 636), whose Origines served as an encyclopedia of jurisprudence and all other sciences. The Hispana made its way into France, and it seems to have already comprised some spurious documents before it came to the hands of the most illustrious of all forgers.STATE LAW AND CHURCH LAW 67 Then out of the depth of the ninth century emerged a book which was to give law to mankind for a lone time to come. Its eore Was the Hispana; but into it there had been foisted. besides other forgeries, some sixty decretals pror ssing to come trom the very earliest successors of St. Peter. The compiler called him- self Isidorus Mercator; he seems to have tried to personate Isidore ot Seville. Many gouesses have been made as to his name and time and home. It seems certain that he did his work in Frank- } land and near the middle of the ninth century. He has been it as far west as le Mans, but suspicion hangs thickest over sOoug the ehurch ot Reims. The false deer tals are elaborate mosaies made up out of phrases from the bible, the fathers, genuine canons, eenuine deeretals, the West Goth’s Roman law-book;: but all these materials wherever collected, are so arranged as to establish a few great principles: the grandeur and superhuman origin of ecclesiastical power, the sacro-sanctity ot the persons and the property of bishops, and, though this is not so prominent, the supremacy of the bishop of Rome. Episcopal rights are to be maintained against the chorepiscopt, against the metropolitans, and against the secular power. Above all (and this is the burden of the song), no accusation can be brought against a bishop so long as he is despoiled of his see: Spoliatus episcopus ante omnia debet restitur, ‘ : : The Isidorian foreeries were soon ac cepted at Rome. The popes profited by documents which taught that ever since the apostolic age the bishops of Rome had been declaring, or even making, law for the universal church. On this rock or on this sand a lofty edifice was reared. And now for the greater part of the Continent comes the time when ecclesiastical law is the only sort of law that is visibly erowing. The stream of capitularies ceased to flow; there was none to legislate; the Frankish monarchy was going to wreck and ruin; feudalism was triumphant. Sacerdotalism also was trium- phant, and its victories were closely connected with those of feudalism. The clergy had long been striving to place them selves beyond the reach of the state’s tribunals. The dramatic struggle between Henry II and Becket has a long Frankish pro- logue. Some concessions had been won from the Merovingians; but still Charles the Great had been supreme over all persons and in all causes. Though his realm fell asunder, the churches were: united, and united by a principle that claimed a divine origin.68 HISTORY OF THE COMMON LAW They were rapidly evolving law which was in course of time to be the written law of an universal and theocratic monarchy. The mass, now swollen by the Isidorian forgeries, still rolled from diocese to diocese, taking up new matter into itself. It became always more lawyerly in form and texture as it appropriated Ve sentences from the Roman law-books and made itself the law of the only courts to which the clergy would yield obedience. Nor was it above borrowing from Germanic law, for thence it took its probative processes, the oath with oath-helpers and the ordeal or judgment of God. Among the many compilers of manuals of church law three are especially famous: Regino, abbot of Priim (906-915): Burchard, bishop of Worms (1012-1023) ; and Ivo, bishop of Chartres (ob. 1117). They and many others prepared the way for Gratian, the maker of the church’s Digest, and events were deciding that the church should also have a Code and abundant Novels. In an evil day for themselves the German kings took the papacy from the mire into which it had fallen, and soon the work of issuing decretals was resumed with new vigor. At the date of the Norman Conquest the flow of these edicts was becoming rapid. The Corpus Juris Canonici consists of the following collections: (a) the Decretum. A collection made between 1139 and 1144 of all sorts of sources, legal and theological, by an Italian monk, Gratian. The com- piler’s plan was to assemble all the authorities pro, followed by those contra, and then to reconcile them. (b) the Decretals (or official letters of the popes containing legal decisions) which were written later than the materials used by Gratian were collected and arranged in five books by Raymond of Pennafort, and this compilation was given statutory authority by Gregory IX in 1234. (c) Later material was published as the Sext or sixth book in 1298 by Boniface VIII; the last few pages of this work contain a collection of maxims which have had considerable influence. (d) These were soon followed by the Clementines (1313) of Clement Ve (e) Extravagantes Johannis XXII and Extravagantes Communes. All the above have been furnished with elaborate glosses or commentaries. Fournier, Les Orriciarirés au Moyen Agcz, 94-96. It is not without astonishment that the modern historian sees the immense importance of the ecclesiastical jurisdiction in mid- dle ages. Dating, in its origin, from the earliest days of Christian- ity, the judicial power of the Church survived and even developed under the revolutions caused by the barbarian invasions, until at the end of the twelfth century it received a new growth and aSTATE LAW AND CHURCH LAW 69 { definite organisation. It was the time of the revival of Roman studies: instruction in the Code and Digest, liberally dispensed at Paris and Bologna, spread amongst students who were eager to le arn and practise the rules of lm p rial L¢ oislation. Deecretals of the Popes were br ught together in collections just as imperial constitutions had formerly been collected in the codes, and thes 1 1 compilations were sent to the schools and placed beside the { KS of Justinian. And so it was that the Church—the only power recognised universally, whose acts were e ective throughout Europe without hindrance from the li sS or a selenory Ol! frontiers of a kingdom—found in her hands a body of law much superior to the other laws of the time, and this le oislative achiev« ment was being constantly completed and reformed by the de- cisions of the Pop S; A “ : Such strength in the ha Ss of the spiritual power can only be explained by the decline of the temporal authority. Indeed, save for the short splendour of th« Carolingian Empire, the central power had ce: sed to make itseli felt ever since thx fall of the Roman Empire. Even though the idea of Empire was not entirely lost to cultivated min no lone r had representative S Save in Germany. Che two swords still existed. it is true, but one of them had fallen to the g1 rund, and there was no arm strong enough to raise it. Above the humerous elements of the feudal world which stirred amid the confusion, the Church towers alone in the majesty of her uncon- tested power: she alone euarded the fund of universal sovereign authority. Her influence therefore is no usurpation, but the price of inestimable services rendered to society. Burn, Eccresrasticat Law, II, 31-384. 2. Accordingly. in this kingdom, in the Saxon times, before the Norman Conquest, there was no distinction of jurisdictions ; but all matters, as well spiritual as t mporal, were determined in the county eourt, ealled the sheriff's tournh, whi re the bishop and earl (or in his absence the sheriff) sat together; or else in the hundred court, which was held in like manner before the lord of the hundred and ecclesiastical judge. For the ecclesiastical officers took their limits of jurisdiction from a like extent of the civil powers. Most of the old Saxon The bishoprics were of equal bounds with the distinct kingdoms. arch-deaconries, when first settled into local districts, were com-rao) HISTORY OF THE COMMON LAW monly fitted to the respective counties. And rural deanries, before the Conquest, were correspondent to the political tithings. Their spiritual courts were held with a like reference to the administra- tion of civil justice. The synods of each province and diocese were held at the discretion of the metropolitan and the bishop, as great councils at the pleasure of the prince. The visitations were first united to the civil inquisitions in each county; and afterwards, when the courts of the earl and bishop were separated, yet still the visitations were held like the sheriff’s tourns, twice a year, and like-them too, after Easter and Michaelmas, and still with nearer likeness the greater of them was at Easter. The rural chapters were also held like the inferior courts of the hundred, every three weeks; then, and like them too, they were changed into monthly, and at last into quarterly meetings. Nay, and a prime visitation was held commonly, like the prime folemote or sherifi’s tourn, on the very calends of May. And accordingly Sir Henry Spelman observes, that the bishop and the earl sat together in one court, and heard jointly the causes of church and commonwealth; as they yet do in parliament. And as the bishop had twice in the year two general synods, wherein all the clergy of his diocese of all sorts were bound to resort for matters concerning the church; so also there was twice in the year a general assembly of all the shire for matters concerning the commonwealth, wherein without exception all kinds of estates were required to be present; dukes, earls, barons, and so down- ward of the laity; and especially the bishop of that diocese among the clergy. For in those days the temporal lords did often sit in synods with the bishops, and the bishops in like manner in the course of the temporalty, and were therein not only necessary, but the principal judges themselves. . . . And the bishop first gave a solemn charge to the people touching ecclesiastical matters, opening unto them the rights and reverence of the ehureh, and their duty therein towards God and the king, accordine to the word of God. Then the alderman in like manner related unto them the laws of the land, and their duty towards God, the king and commonwealth, according to the rule and tenure thereof. 3. The separation of the ecclesiastical from the temporal courts was made by William the Conqueror.!. And as from thence we 1 But see Lichtenstein, The Date of Separation of Ecclesiastical and Lay Jurisdiction in England, 3 Ill. Law Rey. 347. ;STATE LAW AND CHURCH LAW (aL: are to date this great alteration in our constitution, it is Judged necessary to recite the charter of separation verbatim; which is as followeth: ? “William, by the grace of God. King of the English, to R. Bainard and G. de Maenavilla, and P. de Valoines, and to my other faithful ones of Essex and of Hertfordshire and of Middle- Sex, Greeting. Know all of you and my other faithful ones who remain in England, that by common counsel and by the advice of the archbishops and bishops, and abbots, and of all the princes of my kingdom, I have decided that the episcopal laws, which up to my time in the kingdom of the English have not been right or according to the precepts of the holy canons, shall be observed. Wherefore I command, and by royal authority decree, that no bishop or archdeacon shall any longer hold pleas pi rtaining to the episcopal laws in the hundred court, nor shall they bring be fore the judgment of secular men any case which pertains to tl T rule of souls: but whoever shall be summoned, according to th episcopal laws, for any cause or for any fault, shall come to the r name for this purpose, and place which the bishop shall choose « is cause or for his fault, and shall do right shall there answer in | to God and his bishop not according to the hundred court, but according to the canons and the episcopal laws. But if any one, elated by pride, shall scorn or be unwilling to come before the judgment seat of the bishop, he shall be summoned once and a second and a third time: and if he come not even then to make satisfaction. let him be excommunicated; and, if it be needful to give effect to this, let the power and justice of the king or the sheriff be called in. But he judgment seat of the bishop and has refused to appear shall, for every summons, undergo the p nalty of the episcopal laws. This also I forbid and by my authority interdict, that any sheriff, or who has been summoned betore the 1 We have revised the translation following. The date 1072 is now as signed to this document (39 English Historical Review, 400). All the exist- by making it appear ing translations have seriously misconstrued the text of fact, that William ordered the canon law to be “emended.” As a matter no such exploit was attempted, and the Conqueror’s command was just th reverse—ecclesiastical law is to be ob¢ yed. Only Henry VIII would venture Note that in the Latin text (Stubbs, Select Charters, to ‘“‘emend” canon law. used several times, and that its sense 1s (1913) 99) the word emendare is submission; the contumacious party legem episcopalem always that of law. The Anglo-Saxon emendabit, shall undergo the penalty of the bishop’s term “to make bot” is the exact equivalent of emendare.ea eee he pee eae et er a 72 HISTORY OF THE COMMON LAW reeve, or minister of the king, or any layman concern himself in the matter of laws which pertain to the bishop, nor shall any lay- man summon another man to judgment [of the ordeal*] apart from the jurisdiction of the bishop. But judgment [of the ordeal] shall be passed in no place except within the episcopal see, or in such place as the bishop shall fix upon for this purpose.” ConstiITuTIONS oF CLARENDON (1164), Editors’ translation. In the year 1164 from the Incarnation of our Lord, in the fourth year of the papacy of Alexander, in the tenth year of the most illustrious king of the English, Henry II, in the presence of that same king, this memorandum or recognition was made of some part of the customs and liberties and dignities of his prede- cessors, viz., of King Henry his grandfather and others, which ought to be observed and kept in the kingdom. And on account of the dissensions and discords which had arisen between the clergy and the Justices of the lord king, and the barons of the kingdom, concerning the customs and dignities, this recognition was made in the presence of the archbishops, bishops, and clergy, and the earls, barons and nobles of the kingdom. ; A certain part, moreover, of the customs and dignities of the kingdom which were recognised, is contained in the present writ- ing. Of which part these are the paragraphs: 1. If a controversy concerning advowson and presentation to churches arise between laymen, or between laymen and clerks, or between clerks, it shall be treated of and terminated in the court of the lord king. . . . . ») 3. Clerks charged and accused of anything, being summoned by the Justice of the king, shall come into his court to answer whatever it seems to the king’s court ought to be answered there; and in the ecclesiastical court for whatever is answerable there; so that the Justice of the king shall send to the court of the holy church to see in what manner the affair shall there be carried on. And if the clerk shall be convicted, or shall confess. the church ought not to protect him further.? As to this, see 1 Pollock and Maitland. 450 n. in. Hor a discussion of this, see Maitland, “Henry II and the Clerks” in his Collected Papers, ii. 230: Canon 1 2 ee Criminous Law, 132.STATE LAW AND CHURCH LAW ‘esidence ~ 5. Persons excommunicated shall not give a pledge of nor take an oath, but only a pledge and surety of submitting to the judgment ol the church, that they may be absolved. 6. Laymen ought not to bi accused unless through certain and leeal accusers and witnesses in the presence of th bishop, (in such wise, however, that the archdeacon do not lose his right, nor any thine which he ought to have from it). And if those who are in- culpated are such that no one wishes or dares to accuse them, the she riff, at the request of the bishop, shall caus twelve lawful men of the neighborhood or vill to swear in the presence of the bishop, that they will make manifest the truth in this matter, according to their conscience.’ '’. No one who holds of the king in chief, and no one of his demesne othice rs, shall be excommunicated, nor shall the lands any one of them be placed under an interdict, unless first the lord king, if he be in the land, or his Justice,” if he be without the kinedom, be asked to do justice concerning him: and in such way ) ! that what shall pertain to the kinge’s court shall there be ter minated: and that which concerns the ecclesiastical court, shall be sent thither in order that it may there be treated of. o. Concerning appeals, if they shall aris * 1rom tHe arehd acon they shall proceed to the bishop, from the bishop to the arel 1 For commentaries on this important passage, see Haskins, Norman In stitutions, 219, 329-333 and 1 Pollock & Maitland, History ot English Law, pie 2In its oldest use (as here) the word Justice stands for the Justiciar 1 command while he was in the kingdom, e was abroad. It is noteworthy that the word did who acted as the King’s second i and as his viceroy when | not mean one whose sole or chief function was to adjudicate in a court of law; on the contrary, it indicates an official with wide and general powers of government and administration. The Israelites were once ruled by “Judges whose office was political and military, and on numerous occasions during the seventeenth and eighteenth centuries when the Kine was absent commis sioners with the title of “Lords Justices” acted as judges of a law court. See E. Raymond Turner, England” in 29 English Historical Review, 493. Compare this passage fron although not as £ sords Justices ] l J Pollard. Evolution of Parliament, 249-250: “The withdrawal of the judi- eature from executive functions has been a more comprehensive, but still a courts of the Tudor gradual and an incomplete process. The prerogative yeace did most of the work of local government till late in the nineteenth century. A lord chief jus tice sat in the cabinet as late as the same century, and the lord chancelloi as colonial governors f period were councils as well; and the justices of the ] continues to do so to-day. : é - Judges have acted in all parts of the British Empire, and some of the greatest New England, like Bradford and Winthrop, combined in their persons supreme judicial and executive functions. founders < theT4 HISTORY OF THE COMMON LAW bishop. And if the archbishop shall fail to render justice, they must come finally to the lord king, in order that by his command the controversy may be terminated in the court of the archbishop, so that it shall not proceed further without the consent of the lord king. 9. If a quarrel arise between a clerk and a layman or between a layman and a clerk concerning any tenement which the clerk wishes to treat as frankalmoign, but the layman as lay fee: it shall be determined by the judgment of the King’s Chief Justice upon the recognition of twelve lawful men taken in the presence of the Justice himself whether the tenement belongs to free alms, or to the lay fee. And if it be recognized as belonging to free alms, the case shall be pleaded in the ecclesiastical court; but if to the lay fee, unless both are holders from the same bishop or baron, the case shall be pleaded in his court .. . .3 in such way that, on account of the inquest made, he who was previously seised shall not lose his seisin, until, through the pleading, the case shall have been proven.’ 10. If anyone belonging to the city or castle or fortress or demesne manor of the lord king, be summoned by the archdeacon or bishop for any offense for which he ought to answer to them, and he be unwilling to answer their citations, it is perfectly right to place him under the interdict; but he ought not to be excommunicated until the chief officer of the lord king of that town has been asked to compel him by law to make satisfaction. And if the officer of the king default in this matter, he himself shall be at the mercy of the lord king, and the bishop may thenee- forth coerce the man who was accused with ecclesiastical justice. 13. If any of the nobles of the kingdom shall have dispossessed an archbishop or bishop or archdeacon, the lord king should have jurisdiction to compel them to do justice both as to their own and their servants’ misdeeds. And if by chanee any one shall have dispossessed the lord king of his right, the archbishops and bishops and archdeacons ought to compel him to render satisfaction to the lord king. Utrum which eventually became the principal action for the parish clergy as landowners. For an important essay on its history see Blum, Les Origines du Bref de Fief Lai et d? in Travaux de la Semaine d’ Histoire du Droit Normand a 4 1923) (Caen: 1925). Aumone,STATE LAW AND CHURCH LAW iv 14. A church or cemetery shall not, contrary to the king’s jus- tice, detain the chattels of those who are under penalty of for- feiture to the king, for they (the chattels) are the king’s, whether they are found within the churches or without them. 15. Pleas concerning debts shall be in the jurisdiction of the king, irrespective of whether they were accompani d by a pledge of faith or not. ° . . . . > Moreover, this record of the aforesaid royal customs and dig- nities has been made by the aforesaid archbishops and bishops, and earls and barons, and nobles and elders of the kingdom, at Clarendon on the fourth day before the Purification of the blessed Mary the perpetual Virgin; the lord Henry being there present with his father the lord king. There are, moreover, many other and creat customs and dignities of the holy mother church, and of the lord king. and of the barons of the kingdom, which are not ] i contained in this writing. And may they holy church, and to the lord king, and to his heirs, and to the barons of the kingdom, and may they be inviolably observed for eC preserved to the ever. Cauprey’s Casr. Kine’s Benon, 1591 (5 Rep. 1a, 8b—-9b). And therefore by the ancient laws of this realm, this kingdom of England is an absolute empire and monarchy consisting of one head. which is the King, and of a body politic, compact and com- pounded of many, and almost infinite several, and yet well agree- ing members: all which the law divideth into two several parts, that is to say, “the clergy and the laity,’ both of them, next and immediately under God, subject and obedient to the head: also the kingly head of this politic body is instituted and furnished with plenary and entire power, prerogative and jurisdiction, to render justice and right to every part and m« mber of this body, of what estate, degree, or calling soever in all causes ecclesiastical or temporal, otherwise he should not be a head of the whole body. And as in temporal causes, the Kine, by the mouth of the Judges in his courts of Justice, doth judge and determine the same by the temporal laws of England: so in causes ecclesiastical and spiritual, as namely, blasphemy, apostasy from Christianity, heresies, schisms, ordering admissions, institutions of clerks, celebration of divine service, rights of matrimony, divorces, general bastardy,76 HISTORY OF THE COMMON LAW subtraction and right of tithes, oblations, obventions, dilapidations, reparation of churches, probates of testaments, administratiuns and accounts upon the same, simony, incests, fornications, adul- teries, solicitation of chastity, pensions, procurations, appeals in ecclesiastical causes, commutation of penance, and others, (the conusance whereof belongs not to the common laws of England), the same are to be determined and decided by ecclesiastical Judges, according to the King’s ecclesiastical laws of this realm: for as the Romans fetching divers laws from Athens, yet being approved and allowed by the estate there, called them notwithstanding Jus civile Romanorum: and as the Normans borrowing all or most of their laws from England, yet baptized them by the name of the laws or customs of Normandy:? so albeit the Kings of England derived their ecclesiastical laws from others, yet so many as were proved, approved, and allowed here, by and with a general con- sent, are aptly and rightly called, the King’s Ecclesiastical Laws of England, which whosoever shall deny, he denieth that the King hath full and plenary power to deliver justice in all causes to all his subjects, or to punish all crimes and offenses within his kingdom: for that as before it appeareth the deciding of matters so many, and of so great importance, are not within the conusance of the common laws, and consequently that the King is no com- plete monarch, nor head, of the whole and entire body of the realm, [Lord Coke here is reporting the “resolutions” of the Judges of England. | STATUTES OF 1857, ABoLIsHING THE Crvin JURISDICTION OF THE ECCLESIASTICAL Courts. An Act to amend the Law relating to Probates and Letters of Administration in England. (25th Aueust 1857.) [1]. The voluntary and contentious Jurisdiction and Authority of all Ecclesiastical, Royal Peculiar, Peculiar, Manorial, and other Courts and Persons in England, now having Jurisdiction or Authority to grant or revoke Probate of Wills or Letters of Administration of the Effects of deceased Persons, shall in re- spect of such Matters absolutely cease; and no Jurisdiction or Authority in relation to any Matters or Causes Testamentary, 1It will be noticed that in this passage, Coke’s patriotism gets the better of his learning.STATE LAW AND CHURCH LAW or to any Matter arising out of or connected with the Grant or Revocation ot Probate or Administration, shall belong to or be exercised by any such Court or Person. LV. The voluntary and contentious Jurisdiction and Authority in relation to the granting or revoking Probate of Wills and Le t- ters of Administration ot the Effects of deceased Pi rsons Now vested in or which ean be exercised by any Court or Person in England, together with full Authority to hear and determine a Questions relating to Matters and Causes Testamentary, sha bi long to and be vested, in Her May sty, and shi lI, except* as hereinafter is mentioned, be exercised in the Name of Her Ma jesty in a Court to be called the Court of Probate, and to hold its ordinary Sittings and to have its Principal Registry at such Place or Places in London or Middlesex as Her Majesty in Coun | shall from Time to Time appoint. V. There shall be One Judge of Her Majesty’s Court of Pro- bate; and it shall be lawful for Her Majesty from Time to Time, by Letters Patent under the Great Seal of the United Kinedom, to appoint a Person, being or having been an Advocate ot len Years Standing. or a Barrister-at-Law of Fifteen Years Standing, Cl to be such Judge. An Act to amend the Law relating to Divorce and Matrimonial Causes in England. (28th August 155%. ) Whereas it is expedient to amend the Law relating’ to Divoree, and to constitute a Court with exclusive Jurisdiction in Matters Matrimonial in England, and with Authority in certain Cases to decree the Dissolution ot a Marriage: Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows: II. As soon as this Act shall come into operation, all Jurisdic- tion now exerciseable by any Eeclesiastical Court in England in respect of Divorces a Mensa et Thoro, Suits of Nullity of Mar- riage, Suits of Jactitation of Marriage, Suits for Restitution of Conjugal Rights, and in all Causes, Suits, and Matters Matri- monial, shall cease to be so exerciseable, except so far as relates to the granting of Marriage Licenses, which may be granted as if this Act had not been passed.HISTORY OF THE COMMON LAW ~I GO III. Any Decree or Order of any Ecclesiastical Court of com- petent Jurisdiction which shall have been made before this Act comes into operation, in any Cause or Matter Matrimonial, may be enforced or otherwise dealt with by the Court for Divorce and Matrimonial Causes hereinafter mentioned, in the same Way as if it had been originally made by the said Court under this «Act. [V. All Suits and Proceedings in Causes and Matters Matri- monial which at the Time when this Act comes into operation shall be pending in any Ecclesiastical Court in England shall be trans- ferred to, dealt with, and dec ided | )V he said Court tor Divoree and Matrimonial Causes as if the same ee been originally insti- tuted in the said Court. VI. As soon as this Act shall come into operation, all Jurisdic- tion now vested in or exerciseable by any Ecclesiastical Court or Person in England in respect of Divorces a Mensa et Thoro, Suits yf Nullity of Marriage, Suits for Restitution of Conjugal Rights, Jactitation of Marriage, and in all Causes, Suits, and Matters Matrimonial, except in respect of Marriage Licenses, shall belong to and be vested in Her Majesty, and such Jurisdiction, together with the Ju ped tion conferred by this Act, shall be exercised in the Name of Her Majesty in a Court of Record to be ealled “The Court for Oe and Matrimonial Causes.” VIII. The Lord Chancellor, the Lord Chief Justice of the Court of Queen’s Bench, the Lord Chief Justice of the Court of Common Pleas, the Lord Chief Baron of the Court of Exchequer, the Senior Puisne Judge for the Time being in each of the Three last-mentioned Courts, and the Judge of Her Majesty’s Court of Probate const tituted by any Act of the present Session, shall be the Judges of the said Court. IX. The Judge of the Court of Probate shall be called the Judge Ordinary of the said Court, and shall have full Authority, either alone or with One or more of the other Judges of the said Court, to hear and determine all Matters arising therein, except Petitions for the dissolving of or annulling Marriage, and Applications for new Trials of Questions or Issues before a Jury, Bills of Excep- tion, Special Verdicts, and Special Cases, and, except as afore- said, may exercise all the Powers and Authority of the said Court.STATE LAW AND CHURCH LAW iJ Nzieoret v. Nrsoyet, Court or Appgat, 1878 (1 P. D. 1, 4-7) James, L. J.: Can there be any doubt that before the English Act of Parliament transferring the jurisdiction in matrimonial } causes. from the church and her Courts to the sovereign and her Court, the injured wife could have cited the adulterous husband before the bishop, and have ask d eith ror a re stitution ot con Nigal rights or for a divorce « i ef thoro, and in either eas proper alimony ¢ Phi }UYrIsSale mm ol he Court Chris nh was jurisdiction over Christians, who, in theory, by virtue of their bap tism, became memobders Of [he church and its jurisdiction had nothing to do with the original itionality or acquired domicils of the parties, using the word dom- cil in the sense ot secular domicil, viz., the domicil affecting the si ar rights, obligations, and status of the pal Residence, as distinct from casual presence on a visit or in itinere, no doubt was an important element; but that residencé had no conner 101 with. and little analogy to, that which we now understand when we endeavor to solve, what has been found so often very dificult of solution, the question of a person’s domicil. Lt a Frenchman came to reside in an English parish his soul was one 01 the souls the of which was the duty of the parish priest, and for any ecclesiastical offense t pro salute animae. [It is not immaterial states or provinces, were not nect ssarily Channel Islands, which are no part of England, are in the ciocese ot Winehe ster, and the Isle ot M: n is in the province of York: and many similar cases might he found on the Continent. And al conterminous. The VAY OL Goer thoueh the laws of the state sometimes interfered by w: cion, regulation, or prohibition, with the Courts ian, hev administered their own law, latter acted proprvo vigore, and t not the law of the state, and they administer d it in their own name and not in the name of the sovereign. The language of the Act ereatine the existing court strikingly illustrates this, when it enacts that all jurisdiction vested in or exercised by any Ecclesias tical Court or person in England, ete., shall belong to and be It was not previously vested il ene Ls vested in her Majesty. although she had appellate jurisdiction : judge. If, before that Act had passed, the facts alleged petition had occurred, and the injured wife had applied Bishop of Durham for such relief in the matter as was then compe- is Supreme Ecclesiastical in this tO the0 HISTORY OF THE COMMON LAW tent to him, is it possible to conceive any principle on which the guilty husband could demur to the Ordinary’s jurisdiction? The wrong done in his diocese, the offending party openly and scand- alously violating the laws of God and of the church in his dio- cese, why should he decline to interfere? What could it be to him whether the offender was born in any other diocese or born in any other country, Christian, heathen, or Mahometan, and had not in the eye of the secular Court abandoned his domicil therein ? And what principle of international law could there have been to create the slightest difficulty in the way of a decree for restitu- tion, for separation a mensd et thoro, or for alimony? The wrong- doer has elected to reside within the local limits of the jurisdic- tion of the Church Court, and neither the Court of the State nor the Church or State Court of his own country has any ground for alleging that the Church Court appealed to is usurping a jurisdic- tion, when it by Ecclesiastical monition, declaration, and cen- sure, compels the offending party to give proper redress or declares the offended party to be thenceforth relieved from the obligation to provide for or to adhere to the bed and board of the other; which was what the decree of divorce a mensd et thoro really amounted to. (d) The King’s Courts A government’s first need is money; consequently the financial adminis- tration is necessarily developed at an early stage. The oldest surviving English records are fiscal—Domesday Book and the Pipe rolls. The great work of Richard, Bishop of London, entitled Dialogus de Secaccario (ex- tracts from which are here given) is slightly earlier in date than Glanvill’s treatise on the laws of England, and shows a much more complicated organisation. The history of the King’s courts is treated at length in the first volume of Holdsworth, and in all the constitutional histories of the early period ; the historical introductions to the various sections of Giuseppi, Guide to the Public Records, give brief summaries; Adams, Council and Courts in Anglo-Norman England gives the controversy in support of the views here set forth. Opinion is not unanimous upon many of these questions. Less technical summaries are to be found in Medley, Constitutional His- tory, Adams, Origins of the English Constitution, and Adams, Constitu- tional History.Extracts from Dratoaus bE Scaccariro (1178—1179).? he exchequer is a rectangular table about ten feet long and five feet wide, around which the officials sit, havine a raised rim all round about the he ioht OL TOM: hneers, SO that thine’s mav not fall off. Over it is spr ad a cloth (bought in Easter term ot unusual design, for it is black and marked with stripes about a foot a] art, and in the space S so Torm dd are placed eounters accoraing to certain rules, of which more anon. Although this table is Ctr 1 HN. : 4 aa } exchequer” yet the word is sometimes transferred to the cou itself which meets around it—so that if someone obtains a judg ment, or something is est iblishe d by common econsultatio1 it 1S said tO have been don al the exch wer of this or th: tf vear. 7 . and laws and limitations governing their movements, some presid- St aS in the Oar ot chess toere are di rerent ranks of pi SF i le and others assist ine and others advancing, so here some preside an according to their office: and as will be seen, none is allowed to break the rules. And moreover, just as in the mimic war there are two opposing kings, so here there are two principal prot AL% a tandinge by as spec nists, the treasurer and the sheriff, the others s tators and judges. “Although the officials who sit at the greater exchequer all have their special and peculiar functions, ne vertheless. they all are moved by one motive, namely the interest of Halkine adcortl ine to the established laws of the exchequer, tempered with equity. “Whatever be the antiquity of the exchequer’s customs, it is cer- tain that they are confirmed by the authority of the magnates, for no one is permitted to infringe the establishments of the exchequer or to be so rash as to resist them. So it has this in common with the court in which the king himself dispenses justice personally, that no one is permitted to contradict its record or its sentence. Indeed, the authority of this court is so great both on account of the representation of the Royal Excellence upon its seal which is kept there alone, as also on account of those who are present, who by their vigilance preserve the realm in safety. the King’s chief justice, by virtue of his office, and he is the first man of the kingdom after the king himself; there too are all the For there sits 1The authoritative text is that edited by Hughes, Crump and Johnson, Oxford, 1902. For a description of the exchequer and its officers see R. Li: Poole, The Exchequer in the Twelfth Century. 6 See a A eeeSe ne oat Ee OF HISTORY THE COMMON LAW most important men who enjoy the most secret intimacy of the King’s plans, so that whatever is established there in such august company, will remain by inviolable right. 22 Extract from 1 Pottock anp Marriann, 193-197. Men are beginning to speak of the chancery as a curia; but even in Edward I’s reign it is not in our view a court of justice ; it does not hear and determine causes. It was a great secretarial bureau, a home office, a foreign office and a ministry of justice. At its head was the Chancellor, who, when there was no longer a chief justiciar of the realm, became the highest in rank of the King’s servants. He was “the Kine’s secretary of state for all departments” (Stubbs). Under him were numerous clerks. . . . Ti is but rarely that we hear of the chancery or the chancellor Dare any work than can fairly be called judicial. Of any “equitable jurisdiction” exercised in the chancery we hear no ae the King’s justices still believe that they can do what equity requires. But even of what afterwards became the “com- mon law jurisdiction” of the chancery, the jurisdiction of its “ordinary” or “Latin side,” we hear very little. In later days that jurisdiction was concerned chiefly, though not solely, with cases in which a subject required some relief against the king. In the latter half of the thirteenth century a subject who has aught against the king has, at least as a general rule. but one course open to him.* He presents a petition to the king or the king and iscouncile . 9) 9. ‘it he gets a favourable answer, this—since as yet he has shown but some plausible case for relief in general send him before some tribunal which will be instructed by a writ from the chancery to hear his claim and do what is just. Commonly that tribunal is the exc hequer, which may be afforced for the occasion by the presence of the chancellor and the justices ; sometimes it is one of the benches, Ocea sionally, but rarely, the chancellor is appointed to hear and decide the cause. Extract from Mairitann, CongsrrrutrionaL History or Enc- LAND, 111-114. We may, however, indicate six principles which serve to bring justice to the king’s court. 1Por a manent detaiiodl study of this question see Ehrlich, Proceedings against the Crown (1216-1377), in Oxford Studies in Social and Legal History.THE KING’S COURTS ] l i, From the outset it is a court to which one may 20 for de fault of justice in lower courts. Under the Norman kings we find that frequently a litigant, who in the ordinary course 1s going t sue in the court of a feudal lord, will go to the king in the first instance, and procure a writ, a mandate directing the lord, order ine’ him to do justice in his eourt to the applicant, and adding a threat, quod NIST jec ris vicecomes meus et if vou wi t cdo it my sheriff will—the action will be removed out of your court into the county court, and thence it can be rem¢ l into the kine’s own court. This is a W rit de recto tenen lo, a vrit of right. 2. Henry II, must, it would seem, have ordained that no action tor freehold land shall bi eoun in a manorial court without such a writ. I say he must have ordained it: we have no clireet evidence of this; but Glanyill lays down the pl neipl in the broadest terms—no one need answer for his freehold without the king’s writ, a writ directing the lord to do righ ind we cal say pretty positively that this was not law before Henry’s.day. You will notice that it is a serious invasion on feudal principles; when freehold is at stake the lord cannot hold hi court or do justice until the king set him in motio1 the jurisdicti spring out of tenure, but it is not beyond royal control. excuse for such an interference may lie in that royal protection of possi ssion ot which we are soon to spt ak. ° 5 7 H 1 ] ] y reese ait -" 3. In an action for land in a royal court begun by writ 01 right, Henry [I, by some ordinance, the words of which have not come down to us. but which was known as the erand assize, enabled the holder ot the land LOM EC fuse trial by put himself upon the oath of a body of twelve neighbours sworn to declare which of the two parties had the oreater right to the land. This was ealled putting ones Lf on the erand assize; ana the body of sworn neighbours was known as the grand assize. battle and to 4. Henrv II. as we have before remarked, took seisin, pos- session as distinct from ownership, under his protection men who consider that land is unjustly withheld from them are not to help themselves; there is to be no disseisin without a judg 1Dr. Round in 31 English Historical | erand assize probably took place at the Council of coincides with the advent of Glanvill to Review, 268, suggests that the Windsor in 1179 and therefore significantly power. questioned by Joiion des Longrais in 2This proposition has recently been ue ee his Conception anglaise de la saisi Se ak teSe ee De ane eee RA Or hegre Sid fata Be a a oe nt See 84 HISTORY OF THE COMMON LAW ment. He who is thus disseised shall be put back into posses- sion without any question as to his title. This protection of pos- session is, I think, closely connected with that extension of the king’s peace which we have been watching. He who takes upon himself to eject another from his freehold, breaks the peace, and the peace is the king’s. This possessory procedure the king keeps in his own hands—it is a royal matter, the feudal courts have nothing to do with it. Thus there grows up a large class of ac- tions (the possessory assizes) relating to land, which are beyond the cognisance of any but the kine’s justices, and these justices take good care that the limits of these actions shall not be narrow ; perhaps indeed they are not always very careful to draw the line between disputes about possession which belong to them, and dis- putes about ownership which should go to the manorial courts. 5. If we turn back to the list of royal rights contained in the Leges Henrict, we find among them placittum brevium vel pre- ceptorum ejus contemptorum— pleas touching the contempt of his writs or precepts. Now here is an idea of which great us®é can be made: B detains from A land or goods or owes A a debt: this may not be a ease for the royal jurisdiction—but suppose that the king issues a writ or precept ordering B to give up the land or goods or to pay the debt, and B disobeys this order, then at once the royal jurisdiction is attracted to the ease. The kine’s chancellor begins to issue such writs with a liberal hand. A writ 1s sent to the sheriff in such words as these: Command B (Pre- cipe B) that justly and without delay he give up to A the land (or the chattel or the money) wl uch, as «A says, he unjustly de- tains from him, and j f he will not do so, command him to be be- fore our court on such a day to answer why he hath not done it. Thus the dispute between A and B is brought within the sphere if B is in the wrong he has been guilty of contemning the king’s writ. Such writs in Henry II’s time are freely sold to litigants: but this IS somewhat too high-handed a proceeding to be stood, for in the manded, the manorial courts of the king’s justice: case of land being thus de- are deprived of their legitimate juris- diction. So we find that one of the John by Magna Carta is this: be issued for the future so 1.e. so as to deprive the ] concessions extorted from the writ called Precipe shall not as to deprive a free man of his court, ord of the manor of cases which ought to come to his court, his court being one of his sources of income.KINGS COURTS THE To a certain extent in cases of land this puts a check on the ac- quisitiveness of the royal court. But even as regards land it is evaded in many different ways, in particular by the extension le purpose of a of the possessory actions which makes them serve tl ee ary actions. As regards chattels and cle bts the king has a » hand. 6. The notion of the kino”’s peace is by no means exhausted when it has comprehended the whole field of the criminal law: mere civil wrongs, “torts” as we call them, can be brought withi it—a mere wrongful step upon your land, a mere wron; eful ee to your goods or to your person can be regarded as a he peace; any wrongful application of force, however sheht, can + t be sald to be made vz ef arms el t contra pacem domint Regis: in such eases there may be no felony and wrong—I may believe the goods to be mine whe and carry them off in that belief; still this may of the peace. Hence in the thirteenth century a large class of writs grows up known as writs of trespass; for a long time the procedure is regarded as half-civil, halt-ern ninal: the vanquished defendant has not only to pay datnuces to the plaint Gradually ( but iff, he has to pay a fine to the king for the breach of . peace. this is not until the end of the Middle Ages) the fine becomes an unreality: actions of trespass are Serr d as purely civil actions, and in course of time this form of action and forms derived out of it are made to do duty instead of all, or almost all, the other forms. Armed with these elastic SRele it was easy for the king’s courts to amplify their province. Extract from Marrianp, Memoranpa DE ParLiaMENTO, |xxix— |XxXxX1. ‘all upon this old question were Perhaps some new light mie » arc shiva st’s standpoint, we to view it from what might be aie the were we to say for the moment that every one of the high courts in Eneland must have a separate set of rolls. not indefensible position, and leave out of sight the ehancery and the exchequer and also the courts of the itinerant justices, we shall then hold that Henry III during the last halt of his reign has two, ] The one of these is “the [f we take up this and_only two, high courts of law. it has a separate set of records, the “de banco rolls.’ bei ne oh : 23 the king himself; it follows The 1e ot the y 1S professedly held before3.3 SEEN ant waren cere recaeece te yt te, HISTORY OF THE COMMON LAW CO o> him in his movements; it has a separate set of records, the “coram rege rolls.” For ordinary purposes this latter court consists of a few professional justices; later in the reign a chief justice is definitely appointed to hold the pleas coram rege; but at any moment this court can be afforeed by the presence of the king, of his councillors, of numerous barons and prelates. Now and again its roll will bear the title “Pleas before the King and his Council.” It is superior to the bench, for it can correct the errors of the bench. Then early in Edward I’s reign a further differ- entiation takes place. The court held coram rege when it assumes its everyday shape—that of a tribunal consisting of a few profes- sional justices—becomes the “King’s Bench; ” what has formerly been the bench (though it always preserves this title) becomes in common parlance, the “Common Bench: ” at a later day it will be the court of common pleas. But there is a greater change than this. A new set, unfortunately a meagre, disjointed set, of plea rolls (which however, are not pure plea rolls, for they deal also with petitions and other matters) begins to appear. t ) of this Act. the several Courts herein-after mentioned, (that is t the Hich Court of Chancery of England, the Court of say),eR ae en en ae ea eens 102 HISTORY OF THE COMMON LAW Queen’s Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court. of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy, shall be united and consolidated to- gether, and shall constitute, under and subject to the provisions of this Act, one Supreme Court of Judicature in England. 4. The said Supreme Court shall consist of two permanent Divisions, one of which, under the name of “Her Majesty’s High Court of Justice,” shall have and exercise original jurisdiction, with such appellate jurisdiction from inferior Courts as is herein- after mentioned, and the other of which, under the name of “Her Majesty’s Court of Appeal,” shall have and exercise appellate jurisdiction, with such original jurisdiction as herein-after men- tioned as may be incident to the determination of any appeal. 5. Her Majesty’s High Court of Justice shall be constituted as follows:—The first Judges thereof shall be the Lord Chancellor, The Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, the several Vice-Chancellors of the High Court of Chancery, the Judge of the Court of Probate and of the Court for Divoree and Matrimonial Causes, the several Puisne Justices of the Courts of Queen’s Breach and Common Pleas respectively, the several Junior Barons of the Court of Exchequer, and the Judge of the High Court of Admiralty, except such, if any, of the aforesaid Judges as shall be appointed ordinary Judges of the Court of Appeal. All the Judges of the said Court shall have in all respects, save as in this Act is otherwise expressly provided, equal power, author- ity, and jurisdiction; and shall be addressed in the manner which is now customary in addressing the Judges of the Superior Courts of Common Law. The Lord Chief Justice of England for the time being shall be President of the said High Court of Justice in the absence of the Lord Chancellor. 6. Her Majesty’s Court of Appeal shall be constituted as fol- lows: There shall be five ex officio Judges thereof, and also so many ordinary Judges (not exceeding nine at any one time) as Her Majesty shall from time to time appoint. The ea officio Judges shall be the Lord Chancellor, the Lord Chief Justice of England >SINGS COURTS 1e ommon the Master of t] » Rolls, the Lord Chief Justice of tl Pleas, and t aracatt ‘hief Baron otf the Exchequer. The first or- dinary rae of the said Court shall be the existing Hords J us- tiecs of Appeal in Chancery, the existing salaried oes of the Judicial Committee of Her Majesty’s Privy Council, appointed under the “Judicial ¢ ommiuttee Act, [Sie and me ae .e other persons as Her Majesty may be pleased to appoint by Letters within one month Patent; such appoitment may be made either betore or at any time after the day y appoint d for f this Act _ but if made ee shall take ettect at the ecom- the commence- ment ol mencement ot ive Act. The Lord Chancellor for the ti ime being’ shall be President of the Court of Appeal. 8. Any barrister of not less than ten years standing shall be ppointed a Judge of the said High Court of Jus- Act had not passed would have Court qualified to be a tice; and any person who if this re qualified by law to be appointed a Lord Justice of the or has been a Judge of the High Court ot f Appeal in Chancery, e qualified Riches of not less than one’s year standing, shall | be appointed an « rdinary Judge of the said Court of Appeal: Pro- vided, that no person appointed a Judge Courts shall henceforth be required to take, or have degree of Serjeant-at-Law 9. All the Judges of the High Court of Justice, and of the Court of Appeal respectively, shall hold their othces for life, sul yject to a power of removal by Her Majesty, on an address presented to He r M: ajesty by both Houses ot Parliament. No Judge ot either ot the said Courts shall be capable of being e lected to or of sitting 10 Every Judge of e sither of the said Courts 1 ot either ot the said taken, the the House of Commons. (other than the Lord Chance sllor) when he enters on the exec ution of his office, shall take in the presence o1 the Lord Chancellor, the oath of allegiance, and judicial oath as defined by the Promissory Oaths Act, 1868. The oaths to be taken by the Lord Chancellor shall be the same as heretofore. . . ° . ° 16. The High Court of Justice shall be a Superior Court of Record, and, subject as in this Act mentioned, there shall be trans- ferred to and vested in the said High Court of Justice the juris-eg on ae rer a 104 HISTORY OF THE COMMON LAW diction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any of the Courts following; (that is to say), (1) The High Court of Chancery, as a Common Law Court as well as a Court of Equity, including the jurisdiction of the Master of the Rolls, as a Judge of Master of the Court of Chancery, and any jurisdiction exercised by him in relation to the Court of Chancery as a Common Law Court; (2) The Court of Queen’s Bench; (3) The Court of Common Pleas at Westminster ; (4) The Court of Exchequer, as a Court of Revenue, as well as Common Law Court; (5)The High Court of Admiralty ; (6) The Court of Probate; (a7 (8) The London Court of Bankruptey ; (9) The Court of Common Pleas at Lancaster} (10) The Court of Pleas at Durham; (11) The Courts created by Commissioners of Assize, of Oyer and ‘Terminer, and of Gaol Delivery, or any of such Commissions. The jurisdiction by this Aet transterred to the High Court of An ) The Court for Divorce and Matrimonial Causes; Justice shall include (subject to th exceptions hereinafter con- tained) the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in Court or Chambers, or elsewhere, when acting as Judges or a Judge, in pursuance of any statute, law, or custom, and all powers given to any such Court, or to any such Judges or Judge, by any statute; and also all ministerial powers, duties, and authorities, incident to any and every part of the jurisdictions so transferred. 18. The Court of Appeal established by this Act shall be a Superior Court of Record, and there shall be transferred to and vested in such Court all jurisdiction and powers of the Courts fol- lowing; (that is to say), (1) All jurisdiction and powers of the Lord Chancellor and of the Court of Appeal in Chancery, in the exercise of his and its appellate jurisdiction, and of the same Court as a Court of Appeal in Bankruptey: (2) All jurisdiction and powers of the Court of Appeal inTHE KINGS COURTS 105 Chancery of the county palatine of Lancaster, and all jurisdiction and powers of the Chancellor of the duchy and county palatine of Lancaster when sitting alone or apart from the Lords Justices ot Appeal in Chancery as a Judge of re-heari decrees or orders of the Court of Chancery of the county palatine 12? or appeal from of Lancaster: (3) All jurisdiction and powers of the Court of the Lord War- den of the Stannaries assisted by his assessors, including all jur- isdiction and powers of the said Lord Warden when sitting in his capacity of Judge: (4) All jurisdiction and powers of the Court of Exchequer Chamber: (5) All jurisdiction vested in or capable of being exercised Her Majesty in Council, or the Judicial Committee of Her Ma- jesty’s Privy Council, upon appeal from any judgment or order of the High Court of Admiralty, or from any order in lunacy made by the Lord Chancellor, or any other person having jurisdiction by in lunacy. 19. The said Court of Appeal shall have jurisdiction and power order, save to hear and determine Appeals from any judgment o as hereinafter mentioned, of Her Majesty’s High Court of Justice, or of any Judges or Judge thereof, subject to the provisions of this t Act, and to such Rules and Orders of Court for regulating the as terms and conditions on which such appeals shall be allowet may be made pursuant to this Act. For all the purposes of and incidental to the hearing and deter mination of any Appeal within its jurisdiction, and the amend- ment, execution, and enforcement of any judgm« nt or order made on any such appeal, and for the purpose of every other authority expressly given TO the Court ot Appt al by this Act, the said Court of Appeal shall have all the power, authority, and jurisdiction by this Act vested in the High Court of Justice. f business in the said + 31. For the more convenient despatch o High Court of Justice (but not so as to prevent any Judge from sitting whenever required in any Divisional Court, or for any Judge of a different Division from his own) there shall be in the said High Court five Divisions consisting of such number o Such five Divi- Judges respectively as herein-after mentioned. sions shall respectively include, immediately on the ecommence- ment of this Act, the several Judges following; (that is to say), ae Nn ar AT AE106 HISTORY OF THE COMMON LAW (1) One Division shall consist of the following Judges; (that is to say), the Lord Chancellor, who shall be President thereof, the Master of the Rolls, and the Vice-Chancellors of the Court of Chancery, or such of them as shall not be appointed ordinary Judges of the Court of Appeal: (2) One other Division shall consist of the following Judges; (that is to say), The Lord Chief Justice of England, who shall be President thereof, and such of the other Judges of the Court of Queen’s Bench as shall not be appointed ordinary Judges of the Court of Appeal: (3) One other Division shall consist of the following Judges; (that is to say), The Lord Chief Justice of the Common Pleas, who shall be President thereof, and such of the other Judges of Court of Common Pleas as shall not be appointed ordinary Judges of the Court of Appeal: (4) One other Division shall consist of the following Judges; (that is to say), the Lord Chief Baron of the Exchequer, who shall be President thereof, and such of the other Barons of the Court of Exchequer as shall not be appointed ordinary Judges of the Court of Appeal: (5) One other Division shall consist of two Judges who, imme- diately on the commencement of this Act, shall be the existing Judge of the Court of Probate and of the Court for Divorce and Matrimonial Causes and the existing Judge of the High Court of Admiralty, unless either of them is appointed an ordinary Judge to the Court of Appeal. The existing Judge of the Court of Pro- bate shall (unless so appointed) be the President of the said Divi- sion, and subject thereto the Senior Judge of the said Division, according to the order of Precedence under this Act, shall be President. The said five Divisions shall be called respectively the Chancery Division, the Queen’s Bench Division, the Common Pleas Divi- sion, the Exchequer Division, and the Probate, Divorce, and Ad- miralty Division. Any Judge of any of the said Divisions may be transferred by Her Majesty, under Her Royal Sign Manual, from one to another of the said Divisions. 32. Her Majesty in Council may from time to time, upon any107 report or r commendation of the Council of Judges of the Supreme Court herein-aftet mentioned, order that any reduction or in- 1 : ! ] ery | crease 1n ti num er ot Divisions of the High Court of Justice. or In the numbe1 L the Judo S the said High Court ho may be attached LO al such Divisio1 may purs t to sueh report o1 recommendation, be carried into effect; and may give all such further directions as may be necessary or proper tor that purpose s and such Order may provide for the abolition on vacancy of the distinction of the offices of any of the following Judges, namely, 1 the Chief Justice of England, the Master of the Rolls, the Chief quer, which may be reduced of the salaries, pensions nd pa +t , + | ] + + ] - “ + , | ; + tronage attached to such otices, trom the omces of the other Judges of the High Court of Justice, notwithstanding anything in this Act relating to the continuance of such offices, sali and patronage; but no such Order of Her Majesty in Council shall come into Ope ration until the same shall | each House of Parliament for thirty days on which that House shall have sat, nor if, within such period of thirty days, an : |- dress is presented to Her Majesty by either Hous of Parliament, praying that the same may not come into opt ration. Any such in respect whereof no such address shall have be {) ] Order sented to Her Majesty, shall, from and after the expiration « such ps riod ot thirty davs., be of the same fore and erect as if it had been he rein eX] ressly en ted: Provided always, that . Judges of the Supreme Court shall not the the total number o be reduced or increased by any such Ord re 22 All causes and matters which may be commenced in, or which shall be transf« rred by this Act to, the High Court of Jus- tice. shall be distributed among the St veral Divisions and Judor S of the said High Court, in such manner as may from time to time be determined by any Rules of Court, or Orders of Transfer, to be made under the authority of this Act; and in the meantime, and : ; . : subject the reto, all such eauses and matters shall be assigned to the sald Divisi ns respectively, in the manner hereinatter pro- be vided. Every document by which any cause or matter may 1 Pursuant to this provision, the Queen’s Bench Div ision, the Common Pleas airiei ae ; = set deat i . ay : Division and the Exchequer Division in 1881 were merged in one, now Known as the Kine’s Bench Division. The powers that belonge Lord Chief Justice of the King’s Bench, who 1 to the presidents of these divisions were given to the is now called the Lord (¢ hief Justice of Enoland. renee a ena Ee SIS237 cw cae ai hae eae 108 HISTORY OF THE COMMON LAW commenced in the said High Court shall be marked with the name of the Division, or with the name of the Judge, to which or to whom the same is assigned. Supreme Court or JupicaTureE Act, 1875. An Act to amend and extend the Supreme Court of Judicature Ace 18732 (ith Ausust, 1875) Whereas it is expedient to amend and extend the Supreme Court of Judicature Act, 1873: Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. This Act shall, so far as is consistent with the tenor thereof, be construed as one with the Supreme Court of Judicature Act, 1873 (in this Act referred to as the principal Act) and together with the principal Act may be cited as the Supreme Court of Judi- eature Acts, 1873 and 1875, and this Act may be cited separately as the Supreme Court of Judicature Act, 1875. 2. This Act, except any provision thereof which is declared to take effect before the commencement of this Act, shall commence and come into operation on the first day of November, 1875. Sections twenty, twenty-one, and fifty-five of the principal Act shall not commence or come into operation until the first day of November, 1876, and until the said sections come into operation an appeal may be brought to the House of Lords from any judg- ment or order of the Court of Appeal herein-after mentioned in any case in which any appeal or error might now be brought to the House of Lords, or to Her Majesty in Council from a similar judgment, decree, or order of any Court or Judge whose jurisdic- tion is by the principal Act transferred to the High Court of Jus- tice or the Court of Appeal, or in any case in which leave to ap: peal shall be given by the Court of Appeal. 1. Her Majesty’s Court of Appeal, in this Act and in the prin- cipal Act referred to as the Court of Appeal, shall be constituted as follows: There shall be five ea officio Judges thereof, and also so many ordinary Judges, not exceeding three at any one time, as Her Majesty shall from time to time appoint. The ex officio Judges shall be the Lord Chancellor, the LordTHE KING’S COURTS 109 Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer. The first ordinary Judges of the said Court shall be the present Lords Justices of Appeal in Chancery, and such one other person as Her Majesty may be pleased to appoint by Letters Patent. Such appointment may be made either before or atter the com- meneement ol this Act, but if made before shall take eftect at the commencement of the Act. The ordinary Judges of the Court of Ay peal shall be styled Justices of App al. The Lord Chaneellor may by writing addressed to the President of any one or more of the following divisions of the High Court of Justice, that is to say, the Queen’s Bench Division, the Common Pleas Division, the Exchequer Division, and th Probate, Divoree, and Admiralty Division, request the attendance at any time, ex cept during the times of the spring or summer circuits, additional Judge from such division or divisions, (not being officio Judge or Jude s of the Court ot App al at the sittings o the Court of Appeal, and a Judge, to be selected by the divis from which his attendance is requested, shall attend according during the time that he attends rie Every additional Judge, sittings of Her Majesty’s Court of Appeal, shall have all th jurisdiction and powers ot a Judge of the said Court ot Ap] eal, but he shall not otherwise be deemed to be a Judge of the said Court, or to have ceased to be a Judge of the division of the High Court of Justice to which he belongs. Section fifty-four of the principal Act is hereby repealed, and instead thereof the following enactment shall take effect: No Judge of the said Court of Appeal shall sit as a Judge on the hear- ing of an appeal from any judgment or order made by himself, or made by any Divisional Court of the High Court of which he was and is a member. AppreLLAtEe Jurisprotion Act, 1876. An Act for amending the Law in respect of the Appellate Juris- diction of the House of Lords; and for other purposes. (11th August, 1876.) Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem] oralSe ee oe {10 HISTORY OF THE COMMON LAW and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. This Act may be cited for all purposes as “The Appellate Jurisdiction Act, 1876.” 2. This Act shall, except where it is otherwise expressly pro- f November, one vided, come into operation on the first day ( thousand eight hundred and seventy-six, which day is herein-after referred to as the commencement of this Act. 3. Subject as in this Act mentioned an appeal shall lie to the House of Lords from any order or judgment of any of the courts following; that is to say, (1) Of Her Majesty’s Court of Appeal in England; and (2) Of any Court in Scotland from which error or an appeal at or immediately before the commencement of this Act lay to the House of Lords by common law or by statute; and (3) Of any Court in Ireland from which error or an appeal at or immediately before the comemncement of this Act lay to the House of Lords, by common law or by statute. {, Every appeal shall be brought by ¥ way of petition to the House of Lords, praying that the matter of the order or judgment appealed against may be reviewed before Her Majesty the Queen in her Court of Parliament, in order that the said Court may de- termine what of right, and according to the law and custom of this realm, ought to be done in the subject-matter of such appeal. 5. An appeal shall not be heard and determined by the House of Lords unless there are present at such hearing and determina- tion not less than three of the following persons, in this Act desig- nated Lords of Appeal; that is to say, (1) The Lord Chancellor of Great Britain for the time be- ine; and (2) The Lords of Appeal in Ordinary to be appointed as in this Act mentioned; and (3) Such Peers of Parliament as are for the time being hold- ing or have held any of the offices in this Act described as high judicial offices. 6. For the purpose of aiding the House of Lords in the hearing and determination of appeals, Her Majesty may, at any time after the passing of this Act, by letters patent, appoint two qualified persons to be Lords of Appeal in Ordinary, but such appointment Act. shall not take effect until the commencement of thisTHE KINGS COURTS A person shall not be jualified to be aj pointe d by Her Matesti a Lord of Appe al in Or linary unless he has been at or betore the time of his appointm« nt the holder for a pt riod ot not less thal 0 years of some one or more of the ofhces 1 his Act dese1 S high judicial offices, or has been at or before such time as atore- said, for not less than fifteen years, a practising barrister in Ene land or Ireland, or a practising advocate Every Lord of Appeal in Ordinary shall hold his office during oood behavior, and shall continue to hold the same notw1 hs ine the demise of the Crown, but he may be r« moved from such office on the address of both Houses of Parliament There shall be paid to every Lord of Appeal in Ordinary a sal- ary of six thousand pounds a year. Every Lord ot Appeal ll Ordi arv., uniess he he House of Lords, shall by virtue L t titled to sit as a memb« and according to the date of his appoimtment be entitled during his life to rank as a Baron by such style as Her Majesty be pleased to appoint, and shall during the time that he continues in his office as a Lord of Appeal in Ordinary, and no longer, heed to a writ of summons to attend, and to sit and vote u the House of Lords; his dignity as a Lord of Parliament his heirs. On any Lord of Appeal in Ordinary vacating his office by death, resionation, or otherwise, Her Majesty may fill up the vacancy by the appointment of another qualified person. A Lord of Appeal in Ordinary shall, if a Privy Councillor, be the Privy Council, and a me mber of the Judicial ( ommittee ot Ordinary subject to the due performance by a Lord of Ap] eal in als in the a of his duties as to the hearing an 1 det rmining ot appt House of Lords, it shall be his duty, being a Privy Councillor, to ¢ Dee sit and act as a member of the Judicial Committee o1 the Privy Council. administration of justice, the 8. For preventing delay in the f hearing and House of Lords may sit and act for the purpose « he purpose of Lords of Ap- determining appeals, and also for | peal in Ordinary takine their seats and the oaths, during any pro- rogation of Parliament, at such time and in such manner as may be appointed by order of the House of Lords made during the pre- ceding session of Parliament; and all orders and ] the said House in relation to appeals and matters connected there- yroeeeding’s otAd? HISTORY OF THE COMMON LAW with during such prorogation, shall be as valid as if Parliament had been then sitting, but no business other than the hearing and determination of appeals and the matters connected therewith, and Lords of Appeal in Ordinary taking their seats and the oaths as aforesaid, shall be transacted by such House during such proro- gation. Any order of the House of Lords may for the purposes of this Act be made at any time after the passing of this Act. 9. If on the occasion of a dissolution of Parliament Her Ma- jesty is graciously pleased to think that it would be expedient, with a view to prevent delay in the administration of justice, to pro- vide for the hearing and determination of appeals during such dissolution, it shall be lawful for Her Majesty, by writing under her Sign Manual, to authorize the Lords of Appeal in the name of the House of Lords to hear and determine appeals during the dis- solution of Parliament, and for that purpose to sit in the House of Lords at such times as may be thought expedient ; and upon such authority as aforesaid being given by her Majesty, the Lords of Appeal may, during such dissolution, hear and determine appeals and act in all matters in relation thereto in the same manner in all respects as if their sittings were a continuation of the sittings of the House of Lords, and may in the name of the House of Lords exercise the jurisdiction of the House of Lords accordingly. 15. Whereas it is expedient to amend the constitution of Her Majesty’s Court of Appeal in manner herein-after mentioned: Be it enacted, that there shall be repealed so much of the fourth sec- tion of “The Supreme Court of Judicature Act, 1875,” as pro- vides that the ordinary Judges of Her Majesty’s Court of Appeal (in this Act referred to as “the Court of Appeal”) shall not ex- ceed three at any one time. In addition to the number of ordinary Judges of the Court of Appeal authorised to be appointed by “The Supreme Court of Judicature Act, 1875,” Her Majesty may appoint three additional ordinary Judges of that Court. Her Majesty may by writing, under Her Sign Manual, either before or after the commencement of this Act, but so as not to take effect until the commencement thereof, transfer to the Court of Appeal from the following Divisions of the High Court of Jus- tice, that is to say, the Queen’s Bench Division, the Common PleasTHE KINGS COURTS 13 Division, and the Exchequer Division, such of the Judges of the said Divisions, not exceeding three in number, as to Her Majesty may seem meet, each of whom shall have been a Judge of any one or more of such Divisions for not less than two years previously to his appointment, and shall not be an ex officio Judge of the Court of Appeal, and every Judge so transferred shall be deemed an additional ordinary Judge of the Court of Appeal in the same manner as if he had been appointed such Judge by letters patent. No Judge shall be so transferred without his own consent. Every additional ordinary Judge of the said Court of Appeal appointed in pursuance of this Act shall be subject to the provisions of sections twenty-nine and thirty-seven of “The Supreme Court of Judicature Act, 1873,” and shall be under an obligation to 20 is of assiz circuits and to act as Commissioner under comm) or other commissions authorised to be issued in pursuance Oo] the said Act, in the same manner in all respects as if he were a Judge of the High Court of Justice. 16. Orders for constituting and holding divisional courts of the Court of Appeal, and for regulating the sittings of the Court of Appeal and of the divisional courts of appt al, may be made, and when made, in like manner rescinded or altered, by the President of the Court of Appeal, with the coneurrence of the ordinary Judges of the Court of App al, or any three of them; and so much of section seventeen of ‘‘The Suy reme Court of Judicature Act, 1875,” as relates to the regulation of any matters subject to be regulated by orders under this section, and so much of any rules of court as may be inconsistent with any order made under this section, shall be repealed, without prejudice nev rtheless to any rules of court made in pursuance of the section so r pealed, so lone as such rules of court remain unaffected by orders made in pursuance of this section. 17. On and after the first day of December one thousand eight hundred and seventy-six, every action and proceeding in the High Court of Justice. and all business arising out of the same, except as is hereinafter provided, shall, so far as 1s practicable and con- venient, be heard, determined, and disposed of before a single Judge, and all proceedings in an action subsequent to the hear- ing or trial. and down to and including the final judgment or order, except as aforesaid, and always excepting any proceedings on ap- 8 aie aaiaiiaietteh ne eet ne ee =THE COMMON LAW 4 114 HISTOL peal in the Court of Ay peal, shall, so far as is practicabl ea ind convenient. be had and taken before the Judge betore whom the trial or hearing of the cause took place. Provided nevertheless, that divisional courts of the High Court of Justice may be held for the transaction of any business which may for the time being be ordered by rules of court to be hea -l by a divisional court; and any such divisional court when | ield ss ill be constituted of mless the President of the two Judges of the court and no more, Division to which such divisional court currence of the other Judges of such Division, or a majority there- belongs, with the con- of, is of opinion that such divisional court should be constituted of a greater number of Judges than two, in which ease, such court may be constituted of such number of Judges as the President, vith such concurrence as aforesaid, may think expedient; never- theless. the decisions of a divisional court shall not be invalidated by reason of such court being ees of a greater number than two Judges; and Rules of court for carrying into effect the enactments con- tained in this section shall be mae on or before the first day of December, one thousand eight hundred and seventy-six, and may be afterwards altered, and all rules of court to be made after the passing of this Act, whether made under “The Supreme Court of Judicature Act, 1875,” or this Act, shall be made by any three or more of the following persons, of whom the Lord Chancellor shall be one, namely, the Lord Chancellor, the Lord Chief Justice Eneland, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, and four other Judges of the Supreme Court of Judicature, to be from time to time appointed for the purpose by the Lord Chancellor in writing under his hand, such appointment to continue for such time and subject to be annulled in such manner as is provided by “The Supreme Court of Judicature Act, Loa ae (e) The Custom of the Realm BLACKSTONE, CoMMENTARIES, I, 67. This unwritten or common law, is properly distinguishable into three kinds: 1. General customs; which are the universal rule of 1 See also County Courts Act, 9 & 10 View auonm (1 Holdew. “191 ff) ; Crim- inal Appeal Act, 7 Edw. VII, ec. 23 (1 Holdsw. 217-218). There is a very condensed summary of the Judicature Act in 1 Holdsw. 638, 643-645.THE CUSTOM OF THE REALM aly i 1 1 ] 1 1 . . the whole kingdom, and form the common law, 1n its stricter ant 2 which, for the more usual signification. 2. Particular customs; most part aiect only the inhabitants ot particular districts. oO. Certain particular laws; whicb, by custom, are adopt dd and use by some particular courts, of pretty general and extensive juris- diction. 1 Is As to oO" neral eustoms, or the eommon 1aw props rly SO @ Lhe Chi this is that law, by which proceedings and det rminations 1n a ete: oe kino’s ordinary courts of justice are guided and directed. his, course by which lands descend for the most part, settles the ‘nheritance: the manner and form of acquiring and transferring property ; the solemnities and obligation of contracts ; the rules of expounding wills, deeds, and acts of parliament; the respectiv remedies of civil injuries; the seve ral species of temporal olences with the manner and degree of punishment; and an infinite num- ber of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. ‘Thus, for example, that there shall be four superior courts of record, the Chancery, the King’s Bench, the Common Pleas. and the Exche- quer ;—that property may be acquired and transferred by writ- ino :-—that a deed is of no validity unless sealed and delivered ; that wills shall be construed more favorably, and deeds more strictly ;—that money lent upon bond is recoverab] debt:—that breaking the public peace is an offence, ant able by fine and imprisonment ;- all these are doctrines that are not set down in any written statute or ordinance, but depend mere- ly upon immemorial usage, that is, upon common law tor their e bv action of | punish- support. Some have divided the common law into two principal 1. Established customs; such as that. where there erounds or foundations: are three brothers, the eldest brother shall be heir to the second, 92. Established rules and max- in exclusion of the youngest; and “that no man shall be ims: as. “that the king can do no wrong,” and the like. But I take these to be For the authority of the maxims rests entirely upon eveneral reception and usage; and the only method of proving that this or that maxim is a rule of th 1ath been always the custom to observe it. bound to accuse himself,” one and the same thing. e common law, is by showing that it } verv natural, and very material, question arises: But here a axims to be known, and by whom is how are these customs or m‘ 116 HISTORY OF THE COMMON LAW their validity to be determined? The answer Is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. The knowledge of that law is derived from experience and study ; from the “viginti annorum lucubrationes,’ which Fortescue men- tions: and from being long personally accustomed to the judicial decisions of their predecessors. And, indeed, these judicial deci- sions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law. The judgment itself, and all proceedings pre- vious thereto, are carefully registered and preserved, under the name of records, in public repositories set apart for that particu- lar purpose; and to them frequent recourse is had, when any criti- eal question arises, in the determination of which former prece- dents may give light or assistance. Granvitt. Preface to TRacratus DE LegrBus ET CONSUETUDINT- Bus ANGLIAE (1187-1189). Editor’s translation. Our Kine does not despise the Laws of the Realm, and those Customs which, founded on reason in their introduction, have for a long time prevailed; nor (which is still more laudable), does he disdain the advice of such men (although his subjects) whom he knows to surpass others in gravity of manners, in skill in the Law and Customs of the Realm, by the prerogative of their wisdom and Eloquence, and whom he has found by experience most prompt, in determining Causes with justice and ending suits, sometimes using severity, and sometimes leniency, as they see most expedient. For it will be seen that the English Laws, although unwritten may without any absurdity be properly termed Laws (since this itself is Law—that which pleases the Prince and has the force of Law) for it is evident that they were promulgated by the advice of the Nobles and the authority of the Prince concerning doubts settled in their council. For, if from the mere want of writing only, they should not be considered as Laws, then, unquestionably, writing would seem to confer. more authority upon Laws themselves, than either the Equity of the persons constituting, or the reason of those framing them. But, to reduce in every instance the Laws and Constitutions of the Realm into writing, would be, in our times, absolutely impossible, as wellTHE CUSTOM OF THE REALM eg on account of the ignorance of writers, as of the confused multi- plicity ot the Laws. Bracton, Dr Lerarsus rer Consvretupinisus Anais, f. 1. (1250-1258.) Editor’s translation. Whereas in almost all countries they use written laws and right (leges et jura scripta), England alone uses within her boundaries unwritten right and custom. In England, indeed, right is derived from what is unwritten, which usage has approved. But it will not be absurd to eall the E1 elish laws, although they are unwrit- ten, by the name of Laws, for everything has the force of Law, which has been rightfully defined and approved by the counsel and consent of the magnates, with the common warrant of the body politic, and the previous mes of the king or the prince. Th re are also in England many different customs according the diversity of places: for the English have many things by cus P TO tom, which they have not by [written | law. as In divers counties, cities, boroughs, and vills, where one will always have to inquire what is the custom of the place, and in what manner, those who allege a custom, observe it. LANGBRIDGE’s Case, Common Pueas, 1345 (Y. B. 18-19 Edw. III, 374-9, Pike’s translation, revised. ) A writ was brought against a tenant who made default after default.—Huse. You have here John, who tells you that the per- son who makes default has only a term for life, the remainder being ) John and his heirs for ever. And Huse produced a deed show- ing the gift, witnessing, ete., and prayed that he might be re ceived.— Rf. ae You see plainly that his right is not proved by record or by fine, and we cannot have any answer to this deed, nor is it an issue to say that he has nothing in remainder; and, since we cannot have an answer to his statement, we pray seisin. Srarsuutie (J.). One has heard speak of that which BERE- FORD (J.) and Herter (J. ane in such a ease, that is to say, when a remainder was ae in fee simple by fine hey received the per in remainder to defend, and it was said by them that it would be otherwise if the limitation were by deed mM pars ; but neverthe less, no precedent is of such force as that which is right (wll ens Lum ple est st fort come resoun) ; NOW it 1s the fact that one in remainder has just as much right by virtue of a deed in118 HISTORY. OF THE COMMON LAW pais as by fine, save that the fine is more solemn; therefore, ‘f he would be entitled to be received by virtue of a fine, for the same reason he is by virtue of a deed; and the demandant is not in the position of having no answer, because he will have the same answer as the tenant would have if a writ of Formedon in the remainder were brought.—R. Thorpe. When any one has a reversion. whether in virtue of his own deed or by grant of the reversion, there is an outlying fact which can be put to proof, such as the lease. the attornment of the tenant, or the issue that he has nothing in reversion, which facts are traversable; but with regard to this remainder, which is but parol, I who am a stranger, and cannot deny the specialty, am without answer.—Grene. You can traverse the gift in the form in which I have alleged it, or say that the tenant has a fee, or that the remainder was limited to another, or that the gift was made in fee simple, absque hoc that the remainder itself was limited to us as we suppose.—JBzrtone Suppose the tenant were impleaded, and vouched in respect of his estate, and lost, and recovered over to the value, would not the ' person in remainder have execution in respect of this recovery to the value? Yes, he would have it. And that proves that the tenant, on such a deed, holds in his right; consequently he is en- itled to be received; and otherwise he would suffer disherison ; and if he is admitted that is no delay to the demandant, because he will be answered immediately—Hitiary (J.). You say what is true; and therefore, Demandant, will you say anything else to oust him from being admitted ?—R. Thorpe. If it so seems to you we are ready to say what is sufficient; and I think you will do as others have done in the same ease, or else we do not know what the law is.—Huirtiary (J.). It is the will of the Justices.— SronoreE (J.). No; law is reason. And according to the opinion the Courr he is entitled to be received. Therefore Thorpe said that the tenant had a fee; ready, ete. And the other side said the contrary. Mirror or Justices, Book V, chap. 1, No. 3. Whittaker’s trans- lation.} It is an abuse that the laws and usages of the realm, with their 1“The Mirrour of Justices, also called ibe meiicn ‘larlorum, a curious legal monument, probably written between 1285 and 1290. The text is preceded by five Latin verses, in the last of which the writer calls himself Andrew Horn.occasions, are not and known to all. JEFFERYS v. Boosry, Housr or Lorps, 1854 (4 H. L. C. 815, O02 02°@) YJx90—Y5DH ) Porto: Ke. Gy: Be The first 1S, whi ther by the Common Law ot 1.2 1] . . , . this country, the author of any published work has an exclusive right CO multiply copies, that 1S. 1S entitle dl LO what is con called copyright ? This is a question upon which very great names and authoriti S are array? d on either side. pome ot the lawyers have been of opinion that by the Common Law such an exclusive right existed, while it has been denied by others of at least equal authority. The hole question is most ably and el orately argued and discussed on both sides, and all the authorities Rents : : Se j oe a = the hn existine are c lleeted With grec researen 1n ne celebrate case ot Millar Vi Taylor; and with my ‘ ; a ; Parke, that the weight of mere authority, including the eminent 1 persons who have expressed an opinion on the subject since the case of Millar v. Taylor was argued, is very mu +h against the doctrine of a copyright existing at the Common Law. In Mr. Justice Willes’ judgment (giving a very able, elaborate and learned exposition of the whole subject) he appears to t that, because upon general princi} les, he has satished himself of the justice and propriety of an author possessing such a right, therefore by the Common Law it exists. The passage is a remark able one, and shows what were his views of the Common Law, and what, probably, he thought would not be eonsidered strange or : ; le : ath : novel by the rest ot the Judges. It IS thls: he IS speaking’ of the allowance of CO] vy’ asa private right: and he says, “It could onl: be done on principles of private justice, moral fitness, and public I 4 Of one Andrew Horn, who was chamberlain of the city of London in 1320, we know that in 1328 he bequeathed to the London Guildhall together with othe books, his copy of the Liber Justiciariorum. We do not known the author, but he was hardly Andrew Horn. . . . The Mirrour contains a mixture of fiction and truth. It is the work of an amateur jurist, who, with the conceit of superior knowledge, represents the law such as in his opinion it ought to be, as being old law, giving his unbridled imagination full play, and inventing silly stories to explain the origin of legal institutions.” Brunner, Sources of English Law, Select Essays in Anglo-American Legal History, II, 7, 38. The work is now edited yy the Selden Society with a lively Introduction by Maitland, who confirms Brunner’s opinion of the book, but inclines to the view that Horn was the author.120 HISTORY OF THE COMMON LAW convenience, which, when applied to a new subject, make Com- mon Law without a precedent.’ My Lords, I entirely agree with the spirit of this passage, so far as it regards the repressing what Ss is a public evil, and preventing what would become a general mis- chief; but I think there is a wide difference between protecting the community against a new source of danger, and creating a new right. I think, the Common Law is quite competent to pro- nounce anything to be illegal which is manifestly against the pub- lic good; but I think the Common Law eannot create new rights, and limit and define them, because, in the opinion of those who administer the Common Law, such rights ought to exist, according to their notions of what is just, right and proper. Report oF ComMMISSIONERS! “TO TAKE INTO CONSIDERATION THE PRACTICABILITY AND EXxpPEDIENCY oF REDUCING TO A Sys- TEMATIC AND WRITTEN CopE THE Common Law oF Massa- CHUSETTS or any part thereof” (1836). The next inquiry is, what is the true nature or character of the common law, so recognized and established, and where are its doctrines and principles to be found? In relation to the former part of the inquiry, it may be generally stated, that the common law consists of positive rules and remedies, of general usages ani] customs, and of elementary principles, and the developments or applications of them, which cannot now be distinctly traecd back to any statutory enactments, but which rest for their authority upon the common recognition, consent and use of the state itself. Some of these rules, usages and principles are of such hig) an- tiquity, that the time cannot be assigned when they had not an existence and use. Others of them are of s comparatively modern growth, having been developed with the gradual progress of society ; and others, again, can hardly be said to have a visible and known existence until our own day. Thus, for example, many of the rights and remedies, which ascertain and govern the titles to real estate are of immemorial antiquity. On the other hand, the law of commercial contracts, and especially the law of insurance, of shipping, of bills of exchange, and of promissory notes has al- most entirely grown up since the time (1756) when Lord Mans- field was elevated to the bench. And again, the law of aquatic 1The Commissioners were: Joseph Story, Theron Metcalf, Simon Green- leaf, Charles E. Forbes, Luther S. Cushing.THE CUSTOM OF THE REALM 12 rights and water courses, and the law of corporations can seareel\ be said to have assumed a scientitic form until our day. . i In truth, the common law is not in its nature and character an absolutely fixed, 1 eons ae ge flexible system, like the statute law, providing only for cases of a determinate form which fall within the letter of the language in which a particular doctrine or legal proposition ] is expressed. It is rather a system of elementary principles and of general juridical truths, which are continually expanding with the ] rog2yress of soc lety, and adapting themselves to the oradual cnanges ot trade and commerce and the mechanical arts, and the « X1o neies and usages of the country. There are certain fundamental maxims in it which are never departed from; there are others again, which, though true in a general sense, are at the same time susceptible of modifications, and exceptions, to prevent them from doing manti- fest wrong and injury. When a ease, not affected by any statute, arises in any of our ’ . . . + . } ’ . ’ courts of justice, and the facts are established, the first question is. whether there is anv clear and unequivoeal principle of the common law which directly and immediately governs it, and fixes the rights of the parti S: If there be no such pri ‘ple, the next question is, whether there is any principle of the common I: which, by analogy, or parity of reasoning, ought to govern it. If neither of these sources furnishes a positive solution of the con troversy, resort is next had (as in a east confessedly new) to principles of natural justice, which constitute the basis of much of the common law; and if these principles can be ascertained to I 1 apply in a full and determinate manner to all the circumstances, they are adopted, and decide the rights of the parties. If all these sources fail, the case is treated as remediless at the common law; and the only relief which remains is by some new legislation, by statute, to operate upon future cases of the like nature. These remarks may be illustrated by referring to some of the most familiar cases, which occur in the every day business of life. In the common ease of work and labor done for any person, or eoods sold and delivered to him, the common law imphes an obligation or duty in the person for whose benefit and at whose request it is done, to pay the amount of the price of the eoods, or the value of the work and labor. Now, there is no statute from which this obligation or duty is derived. It is simply a dictate of natural justice, and from that source was adopted into the com-122 HISTORY OF THE COMMON LAW mon law. The mode by which this obligation or duty was enforced in the ancient common law, was by the remedy called an action of debt. But this remedy was in some respects, and under some circumstances, liable to embarrassments and technical objections. About three hundred years ago, it occurred to some acute lawyers, that another remedy, which would avoid these embarrassments and objections, might be applied. Accordingly, an action of tres- pass on the case, now well known by the name of an action of indebitatus assumpsit, was brought in the courts of Westminster Hall, to recover the amount of the debt. It was then very gravely debated, whether such an action would lie, and finally (after great diversity of opinion) it was settled in favor of the action. The principal ground of the decision was from the analogy to other well-known forms of actions on the case, and the undertaking or promise of the debtor, implied by law, to pay the debt, the breach of which undertaking or promise was a wrong to the other party, for which he was entitled to recover, not technically the debt, but damages to the full amount of the debt. And this is now the com- mon mode, by which debts of this sort are usually sued for and recovered. Again: When a man borrows money of another to be repaid to the lender, the common law, upon principles of natural justice, holds him liable to repay it, upon his express or implied agreement to that effect. But cases occurred, in which money in the hands of one person, in justice and equity, belonged to another; but it had not been borrowed, nor had the possessor promised to pay it over. On the contrary, he resisted the claim. The question then arose, whether in such a case the money was recoverable. And the courts of law, at a comparatively recent period, held, that an action would lie for the recovery of it, and that the proper action was indebitatus assumpsit, for money had and received to the use of the party entitled. Here, again, the courts acted upon prin- ciples of natural justice, and founded themselves, both as to the right and the remedy to recover, upon the analogies of the law. They first inferred, from the principles of natural justice and the analogies of the law, an implied undertaking or promise to pay over the money, because in conscience and duty the holder was bound so to do; and next, they applied the remedy by analogy to other cases where there was an express promise of a similar nature. Again: Until the reign of Queen Anne, promissory notes, al-THE CUSTOM OF THE REALM though payable to bearer or order, were held not to be negotiable ; so that no person but the payee could maintain an action for the money due on the same. The ground of this decision was, that debts common law, a doctrine which can be traced back to its early . technically called choses in action, are not assignable at the rudiments. This therefore, was a case, where, though the prin- ciples of natural justice might apply to create an obligation, the positive rules of the common law forbade it. Hence the inter- position of the Legislature became indispensable. Nay, even the payee himself could not, according to the rules of the common law, maintain an action directly on the instrument; but he could only use it as evidence of a debt, in an action properly framed, upon the consideration for which it was given. When the Statutes of the 3d and 4th Anne, chapter 9, made such promissory notes negotiable, it was found to be so convenient, that it was generally, though not universally nor without some exceptions and modifiea- ) tions, introduced either by statute or usage into the Colonies. In : Massachusetts it was adopted by usage, and acted upon down to our day, without any other sanction than judicial recognition. As soon as the negotiability of promissory notes was thus estab- lished, it gave rise to innumerable questions, as to the rights and responsibilities of the parties, which were either confessedly new, or but faintly indicated by antecedent principles. What were the nature and extent of the obligation of an indorser; what were the duties of the indorsee; when demand was to be made of payment of the maker: what notice was to be given, and how notice was to be given, by the holder to the indorser ; these, and very many questions of a like nature, were necessarily to be re solved. And so complicated and so various are the circumstances which may attend cases of this nature, that notwithstanding the long course of decisions, which have in a great measure ascertained and quali- fied the rights and responsibilities of the parties, there yet remains a wide field for future discussions, growing out of the new and ever varying courses of business. The principles of natural justice have furnished many rules for the exposition of the contract and obligations of the parties; the analogies of the common law have furnished others: the usages of the mercantile world have fur- nished others: and, then again, there have been anomalies, which could not be brought within the range of any well defined prinei- ples, and therefore have been left to be reoulated by legislative124 HISTORY OF THE COMMON LAW enactments. In this branch of the law, in an especial manner vill be found a striking illustration of the remark of an eminent judge, that the common law is a system of principles, which ex- pands with the exigencies of society. (pp. 29-82.) f) Precedents and Case Law ( ) recedents an (LS € i See Pollock, Essays in Jurisprudence and Ethics, 237-261. The gradual rise of case-law, and a description of the mediaeval Year Books, is given in Winfield, The Chief Sources of English Legal History, chapter VII. Longer statements are, Bolland, The Year Books, Bolland, Manual of Year Book Studies, and 2 Holdsworth, 525-556. Marxsy, Exements or Law, sec. 90, 91, 92. 90. The resource of the English lawyers when called on to fill the gap which was elsewhere supphed by the Roman Law was cus- tom. Of this custom the judges were themselves, in the last resort, the repository. But the judges usually observed a discreet silence as to the source from which they derived the rules upon which their decisions were based. Here and there a judge or a counsel arguendo would mention a precedent, but if we may trust the reports contained in the Year Books, even this was rare. Still there appears to have been very little tendency to innovation; and there was doubtless a tradition of the courts to which every judge knew that he must conform at the peril of his reputation. Some record of the proceedings of the Superior courts of justice was always kept, and we have a series of such records commencing as early as the 6 Rie. II (1394).* These early records might, and probably did, afford some guide in future cases, though they were not drawn up with that object. Moreover, at least as early as the reign of Edward I the practice was begun of drawing up in addi- tion to these records, reports of cases heard and determined, the main and apparently the sole object of which was to furnish judges with precedents to guide them in their future decisions. In these Year Books there is very little argument, but only an ascertain- ment by oral discussion of the points at issue with the decision of the court. The reporter however frequently criticises the deci- sion, and sometimes indicates in a note the general proposition of law which he supposes the decision to support. Reference is also 1 This seems to be a misprint which has persisted through all the editions of the author’s work. It should read “6 Rie. IT (1194).” [ Editors. ]PRECEDENTS sometimes made by the reporter to other cases involving the sam: p' int The later Year Books give the arguments somewhat mort fully, bu ill we do not find previous eases frequently cite From this we might b clisposed to infe) it the practi ot no cases In support of an argument or a judg t was still very ra even in the reign of Henry the Eighth, when the last Year Book was published. Yet this can hardly be so, for the reports oO Plowden in the reion of Edward VI, which are much fuller than the latest Year Books, show that cases were at that tim freely GILEC. and lu IS Dot lil ly that the practice came suddenly Int existence. Mor over, we Gan Scarct ly account for the existence of 5 <- : ’ ; eS ti Year Books at all unless we su] pose that the lawyers studied ber tnem and macle some us { f them. The importance attached to the Year Books is further shown by the numerous reprints of them which were issued as soon as the art of printing was S covered, and also by the popularity of th abridements made of them | \ Fitzherbert and Brooke. Probably, therefore, the influ- ence ot precedent upon the decisions ot th judge Ss is not ti ( measure dl by the number ot cases quoted in the Y ear Books. Hate | [ 1S, howe ver, always as inci ating the eustom oOo} Eneland, and not as authority, that the decisions of earlier judges were ¢1 during all this period, and even afterwards. In the patent of James I for the appointment of official reporters it is indeed re- cited that the common law of England is principally declared by the oTave Tes lutions and arrests of the reverend and learned from time to time, jude Ss upon the cases that come before them and that the doubts and questions likewise which arise upon the exp' sition of statute laws are by the same means cleared and o that the first ruled. Nevertheless we find Blackstone still saying is general oD ground and chief corner-stone of the laws of England and immemorial custom. But long before Blackstone’s time, and in some measure perhaps owing to the patent of James I, a very important change had taken place in the view held by judges as to the force of prior decisions. These decisions were at first evl dence only of what the practice had been, guiding, but not com pelling, those who consulted them to a conelusion. But when Blackstone wrote. each single decision standing by itself had al ready become an authority which n liberty to disregard. This important change was very gradual, mniform. As the 0 sueceeding judge was at and the practice was very hk ly not altogether 1126 HISTORY OF THE COMMON LAW judges became conscious of it, they became much more careful of their expression, and gave much more elaborate explanation of their reasons. They also betrayed greater diffidence in dealing with new cases to oe no rule was Se eases of first 1m- pression as they were cé lled: and they introduced the curious prac- tice of occasionally app ae, to a decision an expression of desire that it was not to be eee into a precedent. 92. Thus it comes to pass that English case law does for us vhat the Roman law does for the rest of Western Europe. And this difference between our common law and the common law of continental Europe has produced a mar ked difference between our own and foreign legal systems. Where the principles of the Roman law are adopted the advance must always be made on cer- tain lines. An Pneli sh or American judge can go wherever his eood sense leads him. The result has been, that whilst the law of continental Europe is formerly correct it is not always easily adapted to the changing wants of those amongst whom it is admin- ‘stered. On the other hand, the English law, whilst it is cambrous, ill-arranged, and barren of principles, whilst it is obscure and not unfrequently 1 in conflict with itself, is yet a system under which justice can be done. Anyhow it stands alone in the history of the world. The records of decisions have no doubt at all times and in all countries served as evidence of custom, just as the Year Books formerly served, and the court rolls of manors still serve, amongst ourselves. And even without the influence of custom, judges are never likely to disregard or to remain uninfluenced by the deci- sions of their predecessors. But nowhere else than in England and in countries which have derived their legal systems from Eng- land have the decisions of judges been systematically treated authoritative. Horzianp, JURISPRUDENCE, chap. V. In the weight which they attach to the decision of a court, jegal systems differ very widely. While in England and in the United States a reported case may be cited with almost as much confidence as an Act of Parliament, on the Continent a judgment, though useful as showing the view of the law held by a qualified body of men, seems powerless to constrain another court to take the same view in a similar case. The continental view is an inheritance from the law of Rome;‘ PRECEDENTS AND CASE LAW 12 ‘ for although Cicero enumerates ‘res iudicate’ among the sources of law, and the Emperor Severus gave binding force to the ‘auctor itas rerum perpetuo similiter iudicatarum, the ordinary principle was finally established by a Constitution of Justin. The Codes of Prussia and Austria expressly provide that judgments shall not have the force of law, and although the Codes ot France, Italy, and Belgium are silent on the point, the rule in all these countries ty is substantially the same, viz., that previous decisions are instruc- tive but not authoritative; subject to certain special provisions of a strictly limited scope. In England cases have been cited in court at least as early as the time of Henry Rox y are, however, stated by Lord Hale to be ‘less than law,’ though “oreater ¢ vid nee thereof than the opin- ion of any private persons, as such, whatsoever ;’ and his contem- porary, Arthur Duck, remarks that the Common Law judges, in i case ol difficulty “non recurrunt ad ws c1vive Romanorum, ut apu l | alias gentes Huron as, sed suo anvoitrro ef conscu ntridae relanguun- Tt tur.” But in Blackstone’s time the view was established that ‘the duty of the judge is to abide by former precedents,’ and it has lone been well understood that our courts are arranged in this respect in a regular hierarchy, those of each grade being bound by the decisions of those of the same or higher orade, while thi House of Lords is bound by its decisions. There have been of late some symptoms of an approximation between the two theories. While on the continent judicial de cisions are reported with more care, and listened to with more respect than formerly, indications are not wanting that in Eng- land and the United States they are beginning to be somewhat more freely criticised than has hitherto been usual. Bracron, Dre Lecisnus ET CoNSUETUDINIBUS ANGLIA, folee 1250-1258. Editors’ translation. Since. however, laws and customs of this kind are often abusive- ly perverted by the foolish and unlearned (who ascend the jude- ment-seat before they have learnt the laws). and those who are involved in doubts and conjectures are very frequently led astray by their elders, who decide: causes rather according to their own pleasure than by the authority of the laws, I, Henry de Bracton, have. for the instruction, at least of the younger veneration, un- dertaken the task of diligently examining the ancient judgments128 WISYORY OF THE COMMON LAW of richteous men, not without much loss of sleep and labour, and ud answers, and whatever thereof by reducing their acts, counsels, é I have found noteworthy, into one summary, I have brought it into order under titles and paragraphs (without prejudice against any better system), to be commended to perpetual memory by the aid of writing; requesting the reader, if he should find anything superfluous or erroneously stated in this work, to correct and amend it, or to pass it over with eyes half closed, since to retain everything in memory, and to make no mistakes, is an attribute ot God rather than of man. Bracron, Dr Leaisus . . . Aneriss, fol. 128. Editor’s trans- lation. But if there be any one who at the fourth county court wishes to mainprise any one accused of an act, as has been already said in part, he shall not be heard, according to what Martin (de Pate- shull) answered to Richard Duket? concerning a certain escheat in the county of Kent. And to this effect also is what you find elsewhere, in the iter of Martin de Pateshull in the county of Worcester in the fifth year of the reign of King Henry. For it is there said that in the fourth county court no essoin 1s admitted of any one who is appealed, nor ought any one to be heard who is desirous to mainprise such an one to produce him at another county court, unless this should be under a precept of the lord the king, which would be arbitrary rather than just. From the Prior or Lewes v. tne Bisnop or Ery, Common Preas (304) Y¥. B: 32 & 33 Hdwe I.;*32: Herle (of counsel for plaintiff, arguendo) : But consider whether he shall be admitted to aver these three causes: for the judgment you make now will hereafter serve in every quare non admisit in England; therefore consider if he shall be received to aver these three causes. Anonymous Casr, Common Puras, 1341. Y. B. 15 Edw. IIL., 160. Dower. Thorpe (counsel for defendant, pleading): She was not when her husband died of such age as she could merit dower. 1 Richard Duket was also an itinerant justice (Bracton’s Note Book, 1909).PRECEDENTS AND CASE LAW 129 Hiruary (J.): State with certainty of what age -she was. Thorpe: Not nine years old. Gayneford (counsel for plaintiff) : She was nine years old and more. Ready, ete. Thorpe: Show her age to have been such that she would have been dowable thereat, viz. ten years at least. Hittary (J.): In the ease of John Benstede the widow Was endowed al the ave of nine years and a half. (Pike’s transl: it1ON. ) Anonymous Oase, Common Puras, 1462. Y. B. 2 Edw. IV. 27. In cdi bt on a bond ag IST A. Re late of Be the def ndant says all that at the time the writ. ete., he was conversant at M. without this that hi ever lived at hy in the manner, ete. Lattleton ( coun- sel for defendant): To this vou shall not be received 1 a } ] vi nd. an estoppel, a | Billing (counsel for plaintiff): That is no for this was adjudged, M. 34 H. 6 fol. 19 [7. e., Michaelmas Term in the 34th year ot Henry VI : he re in the case ot one ae We Ks, late of Bristow. Nrrpwam and Danvers alone were on the Bench. Nerrpnam (J.) said that this is no estoppel, for it is consistent with the bond, for it may be that F. is a pla ‘e ealled FE’. in a town, and no farm or hamlet or place known outside of the town or hamlet, or that his name is R. M. of F., which F. is his own house in the town, and so the two statements agree. DANVERS (J.)) doreed. = lattleton: I understand not, Sir, this was decided before you here in your time. H. 37 H. 6 fol. 5. Neerp- HAM (J.): No, Sir, I believe not unless the bond makes mention of a town by express words, that is to say of the town of F. Anonymous Casz, Common Puras, 1536 (1 Dyer, 14a). Willoughby asked of the Court, [f lessee for years covenant for himself by the indenture of lease, that within the three first years he will build a new house and after the term finished; he di the covenant not performed, and the lessor for that breach bring a writ of covenant against his executors, Whether this lies, or not? that was the matter. And Sugeiiery (J.) and Firznersert (J.) thought that it would. But it is otherwise of heirs, for the heir shall not be charged without naming him, but the executor shall. And so is 47 E. 3, 23. But Batpwin (C.J.) said secretly, That there is a diversity between an obligation in which no men tion is of the executor, for that it is a duty; but covenant is130 HISTORY OF THE COMMON LAW executory, and sounds only in damages, and a tort, which (as it seems) dies with the person, etc. Marernat Nore in the 1688 edition of Dyer, 111b. Noy, of Lincoln’s Inn, Mich. 19. Jac. at Moot in the Hall put this difference, that if a man make a feofiment in fee to the use of himself for life, the fee-simple remains in the feoftees, for oth- e according to his intention ; erwise he will not have an estate for lit but if the use be limited to himself in tail, it is otherwise, for both estates may be in him. From WINFIELD, THE Cuter Sources or Enerisn Lucan His- Tory, 154-155. What the Year Books do show us again and again is the crea- tion of new rules and the extension or confirmation of old ones. by analogies from existing law and by analogies from hypothetical facts. Judges and counsel constantly make comparisons between the point of law before them and a similar point in some other department of the law. . . . Often the points so compared are in matters of procedure, which is just the branch of law that would facilitate this kind of argument by analogy. It suited exactly the mould in which mediaeval law was cast, where procedure 1s so predominant that we wonder at times where the point of substantive law is to be found in the web of writ, declaration, counterplea, double plea, and judgment. As to imaginative varia- tions of facts, a case several folios in length will be full of this sort of thing, without a word said about other cases that have actually occurred. Frequently this takes the form of pushing some opposite line of argument (also generally based on mere suppositions) to its logical extreme and then pointing out that this is “against reason” or “will be strange.” If the judges differ from one another, they do so openly and without the least constraint, and a marked difference in the conduct of a trial then and now is their brisk open discussion among themselves and a tendency to treat counsel as their equals. At times it looks as if they and the sergeants formed a debating society in which the president and officers have, at any rate until the moment for the last word comes, only a nominal precedence, which in no wise prevents them from contributing to the discussion, or from takingPRECEDENTS AND CASE LAW 131 vigorous sides in it, and giving and receiving hard dialectical knocks as a consequence. The one thing about which we ean hard- ly ever get much detail is what we should eall the final judgement. When it is reported it is usually terse in the extreme, and often none is reported at all. Bote v. Horton, Common Pueas, 1670 (Vaughan. 360. 382.) Extract from the opinion of Vaughan, C. J. An extra-judicial opinion, given in or out of a court, is no more than the prolatum or saying of him who gives it, nor can be taken for his opinion, unless everything spoken at pleasure must pass as the speaker’s opinion. An Opinion given in Court, if not neces- we rv to the judgment given of record, but that it might have been as well given if no such, or a contrary, opinion had been broached, is ho Judicial opinion, nor more than a gratis dictum. But an opinion, though erroncous, concluding to the Judgement, is a Judicial Opinion, because delivered under the sanction of the | Judge’s Oath, upon deliberation, which assures it is or was when delivered the Opinion of the deliverer. Yet, if a court gives judgment judicially, another court is not bound to give like judg- ment, unless it think that judgment first given was according to law. For any court may err, else errors in judgment would not be admitted nor a reversal of them. Therefore if a Judge con- ceives a Judgment given in another court to be erroneous, he being sworn to judge according to Law, that is in his own conscience, ought not to give the like judgment, for that were to wrong every man having a like cause because another was wronged before, much less to follow extrajudicial Opinions unless he believes those Opinions are right. BLACKSTONE, ComMENTARIES, I, 69 (1765). It is an established rule to abide by former precedents where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion, as also because, the law in that case being sol- emnly declared and determincd, what before was uncertain and perhaps indifferent is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments; he being sworn to determine,132 HISTORY OF THE COMMON LAW not according to his private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Mirenouse v. RENNELL, Hovssz or Lorps, 1833 (1 Cl. & F. 527.) Extract from the opinion of Parke, B.: Our Common Law sys- tem consists in the applying to new combinations of circumstances rules of law which we derive from legal principles and and for the sake of attaining uniformity, ply those rules, where they ire not plainly unreasonable and inconvenient, to all cases which ect them, and to abandon those judicial precedents 5 consistency and certainty, we must ap arise: and we are not at liberty to re] all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as 1 reasonable as we ourselves could have decided. of great importance to keep this principle not merely for the determination of convenient ant It appears tO me to be of decision steadily in view, the particular case, but for the interests of Law as a science. Ditton. Laws AND JURISPRUDENCE OF ENGLAND AND AMERICA, 231. The point I wish you to notice is that the authoritative force of judicial precedents is an established, and up to the present time at least, an essential part of the English and American systems of law. Let us trace more at large the scope and effect of this 1m- portant doctrine. What is judicial precedent ¢ Judicial prece- dent is not simply part of the law in a general sense,—that it 1s natural to yield to the influence of example and to follow what has been practised,—but it is a part of our law in a sense and with effects which are distinctively and most strikingly peculiar. The doctrine as established is shortly this: that a decision by a court of competent jurisdiction of a point of law lying so squarely im the pathway of judicial judgment that the case could not be ad- judged without decision, is not only binding upon the parties to the cause or judgment, but the point so decided becomes, until ‘t is reversed or overruled, evidence of what the law is in like eases, which the courts are bound to follow not only in cases pre- cisely like the one which was first determined, but also in those which however different in their origin or special circumstancesAND CASE LAW 13: stand, or are considered to stand, upon the same principle. What is to be observed and remembered is that the adjudged ease has an authoritative and not merely persuasive force. The doctrine is not limited in its scope and binding effect to cases which di termine the true construction of a statute, but extends to the far larger class of cases which does not depend upon positive leoisla- tion. but must be determined by general reasoning. ‘There is ditference ot opinion amon? writers as to whether the prece- dent actually constitutes the law or is only authoritati\ e evidence thereof. It is not proposed now to enter upon this discussion; 4 it is enough to remark at this time that the preceden ] legal system an authoritative effect. In continental Europe a judicial decision has no authoritative force in any other ease, whether in the same or any other court. But in England and in 1 5 ii 2 he toree and eltect o1 this country a point solemnly decided has t law, binding the judges in all other cases that clearly fall within its principle, and which the judges are therefore bound to follow and apply, unless, to use Blackstone’s well-known and much ecriti- eized qualification, the precedent is “flatly absurd or unjust.” To this doctrine we owe a weight of obligation which can not easily be overstated. By reason of the consequent importance, they have been reported for several hundred years, so that at this time the volumes of reports in England and this country number about eight thousand. These embody the learning, wisdom, and experience of the judges (often men of great intellectual powers ) who during this long period have made the law and the practical administration of justice the subjects of profound study. In- directly the reports embody also the results of the res« arches, stud- ies, experience and ability of the bar during the same period, since of these judges have had the advantage in the argument of the causes SO dc cided. Indeed, the doetrine ot judicial prece dent implies that the point to the decision whereof such force is at- tributed should have been argued by opposing counsel. The value of these reports to the lawyer and to the judge 1s, I repeat, absolutely incalculable. It is a mine of wealth possess (| by none but English-speaking peoples. Here the lawyer finds his true riches, What the art collections in the Vatican, in the Tribune Room, the Pinacotheka, in the Dresden Gallery, and in the Louvre are to the artist, the judicial reports are to the English and American lawyer. I yield to no one in my estimate of the134 HISTORY OF THE COMMON LAW store of riches they contain. I have not yet mentioned one of the chief elements of their possible usefulness. They are capable of being made quite as valuable to the legislator as to the lawyer, since the uninterrupted light of the experience of many genera- tions of men shines forth from them to mark out and illumine the legislator’s pathway. He need scarcely take a single step in the dark. (g) The Jury i. Archaic modes of trial. There is an extensive literature on the archaic modes of proof; Lieber- mann’s Gesetze prints excerpts from many church books laying down the ceremonial and formulas of the ordeals and oaths. A general survey (with special reference to France but bearing also upon English practice) is Declareuil, Preuves Judiciaires (Nouvelle Revue historique de Droit fran- eais et étranger, 1898 and 1899) while numerous works deseribe survivals in remote districts of Europe and among primitive races, such as Jobbé- Duval. Les Idées Primitives dans la Bretagne Contemporaine and Kova- lewsky, Coutume Contemporaine et loi ancienne. Brertow, History or ProcepurE ty Enexanp, chap. IX. The next step in the procedure was the appearance of the parties before the judges at the trial term. The medial judgment, as we have seen, must have directed a trial in one of the following modes to wit, by compurgation, by witnesses, by charters, by record, by the ordeal, by the duel, or by the inquisition or recognition. Each of these will now be considered in order, from the final point of view, the trial. First, then, the compurgation. This, in its essential features, consisted in bringing forward of a specified number of persons, by the party adjudged to give the proof to make oath in his favor: the number varying in ordinary cases from one to forty-eight, being dependent upon the rank of the parties, of the compurgators (one theen, for example, being equal to six villeins), the value of the property, if property were involved, and the nature of the suit. These persons were to swear not to facts but to the credibility of the party for whom they appeared; though knowledge of the facts was probably deemed an important consideration in the making of the selection. Trial by witnesses to the fact was very common both in the pre-THE JURY Norman and in the Norman periods. Unlike compurgators who swore to their principal’s credibility, witnesses to the fact swore to matters de visu et auditu. They differed, however, essentially from the inquisitors and recognitors of the time, and from mod- ern witnesses. They gave their testimony in ordinary cases in accordance with the narrow formula of the medial judgment; they were not examined as to facts; and they appeared (in this particular like modern witnesses) at the instance of the party for whom they testified. The judge might examine them as to their competency, but if this were established, if they were sworn to be legal men of the neighborhood, they were entitled to give an an- swer according to the prescribed formula. They were triers, not witnesses in the modern sense, and few of the questions which arise at the present day upon the testimony of witnesses, such as the admissibility of evidence, could arise under the procedure of the Norman (pre-Norman) period. Both civil and criminal cases were tried in this way. Civil cases may be found in the records almost without number. Of trial by charters, little need be said. The effect and inter- pretation of documents were ordinarily matter for the judges ; and trial by charters had, in consequence, more of the features of trials of the present day than any other form of litigation except that by inquisition and recognition. The event was not, as it was in trial by wager of law and by party-witness, largely and often wholly in the hands of the party who had delivered the last good pleading. Nor was it necessarily left to some external test, in- capable in fact of discovering the truth. But as in the case of trial by inquisition, the truth was, if possible, sought by a ra- tional and satisfactory mode of inquiry, as by a comparison of the seal in question with other seals of the same party, admitted to be genuine. The next mode of trial to be noticed was the ordeal, commonly called Judicium Dei, sometimes simply judicium. It was, like the duel. the final test, from which there was no appeal. It was a solemn invocation to Heaven to decide the matter in dispute and the result of the test was regarded by the credulous masses as effected by the direct interposition of the Almighty. But it was only when the party had no charters and could furnish neither witnesses nor compurgators, that he resorted to ordeal, except in eases provided for by special legislation, : as by the Assises of ee ene eae136 HISTORY OF THE COMMON LAW Clarendon and Northampton. It was applicable to women equally with men: and it was the legal mode of exculpation of a man accused by a woman of the murder of her husband. loyed in the procedure of The ordeal was more extensively em] the pre-Norman period than in the later. It was the typical mode of trial among the English, contrasting English procedure with the procedure of their Norman conquerors. With them it was, until the Conquest, the only Judicium Dei so far as existing monu- ments bear witness. It was used frequently in civil as well as in criminal cases before and for a considerable time after the Con- quest. Even Normans who affected to despise the peculiar in- stitutions of the English, sometimes resorted to the ordeal. In the time of the Conqueror his Norman Bishop Remigius purged himself of a charge of treason by the ordeal of fire, sustained by one of the household of the accused. The ordeal may possibly have continued to be legal mode of trial for civil causes in the twelfth century so far as anything directly to the contrary appears, but the encroachment of the duel, of com- purgation, and of the inquisition, was constantly narrowing its application to such cases and probably long before the end of the century, probably indeed, before the middle of it, it had become practically obsolete in civil litigation. Its use appears at the same time to have become somewhat narrowed in criminal procedure. In the latter half of the twelfth century and probably earlier, the duel had come to be recognized as a mode of trial in appeals of treason, if not in appeals of crime generally; though in the case of presentments, where compurgation had probably been the com- mon mode of trial, the Assises of Clarendon and Northampton had provided for trial by ordeal. This mode of trial finally received a fatal blow from the well- known decree of the Lateran Council of the year 1215, at whieh it was ordered that the ordeal should be discontinued throughout Christendom. There were four forms of ordeal, to wit, by cold water, by hot water, by hot iron and by morsel or “corsnaed.” The first two were in the time of Glanvill for the poor and partly unfree classes, the rusties;” the third was for the lay freemen; whilst the last, as we have seen, was for the clergy. The accused, however, appears to have had an election at one time between the modes by fireTHE JURY and by water. Whether this was true in the twelfth century is doubtful. Each was undergone after the most solemn religious ceremonial. In the case of the cold water ord al, a fast of three days duration was first submitted to in the presence of a priest; then the ac- cused was brought into the church, where a mass was chanted, fol- lowed by the communion. Before communion, however, the ac- cused was adjured by the Father, Son and Holy Ghost, by the Christian Religion which he professed, by the only begotten Son, by the Holy Trinity, by the Holy Gospels, and by the Holy Relics, not to partake of the communion if he was guilty. Communion having been partaken, adjwratio aquae is made by the priest in which the water is asked to cast forth the accused if guilty, and to receive him into its depths if innocent. After these ceremonies, ? And afterwards let all the other jurors swear in order, each by himself, and in this manner: me help and these hallowed things.’ “Such oath as the first of us has sworn, I will keep on my part, so help me God and these hallowed things,” ete. And it is to be noted that several assises may be held under one and the same oath, just as several novel disseisins concerning one tenement, and then thus: to wit, “that I will speak the truth concerning those assises and tenements, and in like manner concerning the tenement, from which the said rent is derived.’ Likewise if a common pasture is involved, then thus: ‘concerning the said tenements and the common right of pasture and the tenement, of which I have made a view, ete.” Likewise if a nuisance be in- 1 Medieval oaths were frequently administered upon relics, as well as upon the GospelsTHE JURY 15 volved, then, after repeating all as above said, let it be said: ‘‘con- eerning the ditch, wall, or hedge, and such like, and concerning the tenements of which I have made a view, ete.” And so let it be done in all assises, as of darrein presentment, mort d ancestor, and others. Likewise, as several disseisins may be terminated by one jury or by several, so may several disseisins arise out of one or by several, as below. The act and be terminated by one assise oath then having been taken, as aforesaid, then let the prothono- tary read the substance of the writ for the instruction of the jurors, in this manner: “Ye shall declare by the oath which vou have made, if the said N. had unjustly and without a judgment disseised the said N. of his free tenement in such a vill since the last return of king Henry, ete. or not.” But the justices shall say nothing in this case for the instruction of the jurors, because noth- ing is said nor excepted from the commencement against the as- sise. But when the oath has thus been made, let the jurors retire ) into some secret place, and have a conference amongst themselves concerning the matter which they have been enjoined to do, and let no one have access to them nor have conversation with them, until they have declared their verdict, nor let them by sign or word manifest to any one what is about to be said by them. It happens also on many occasions that the jurors in saying the truth are contrary to one another, so that they cannot agree upon one opinion. In such a case with the advice of the court the assise may be afforded, so that others may be added according to the number of the greater part which has dissented, or at least four or six and let them be joined to the others, or even let them by themselves without the others discuss and judge respecting the truth, and let them answer by themselves, and their verdict shall be allowed and shall hold good with those with whom they agree 5 but the others shall not be convicted [7.c., by attaint] for this reason, but shall be amerced as if for a trespass, for it may still be the fact that they have spoken the truth and the others a false hood, who may still be convicted of perjury. But when after their oath they have given their verdict either for one party or for the other, according to their declaration let judgment be pro- nounced, unless they have said something obscure, on account of which the justices may be led to examine, and either the seisin shall be adjudged to the plaintiff, or the defendant shall withdraw acquitted with his seisin: and sometimes it happens that each152 HISTORY OF party will remain at mercy, or one only. THE And in the same way several disseisors by name, some fall under the penalty of dis- seisin, and some shall retire acquitted. And if they have spoken | for the defendant, the plaintiff only is in mercy because he has prosecuted, but not his sureties, although he has had an adverse judement. The recognitors also may expound the whole truth of the business in short and few words to the justices, if all things are plain and clear, and nothing is obscure. But if some doubtfulness or obscurity arises, so that the solution is difficult, then let them be compelled to declare more clearly and more openly those things which are obscure, if this is possible for them, and the Justices ac- cording to their declaration proceed to judgment. But if they can- not clear up that obscurity or doubtfulness in any manner, to wit, neither the recognitors themselves nor the others who have been called to afforce them, then it will be safer that the parties be induced to agree, if it be possible, or let the judgment be referred to the great court, and there let the business be deter- mined with the advice of the court. But if all things are plain which are contained in the record, then proceedings are to be had according to their declarations, and if they have well sworn, their verdict shall be binding; but if ill, there will be place for a con- viction; but if they have spoken obscurely and dubiously, where a single speech may have a double meaning, or if the parties have been not fully examined, there will be place for a eertifieate, as will be explained below. It will therefore have to be seen, whether they have spoken with certainty or with uncertainty, with clearness or with ob- security, or whether they have been doubtful! in their verdict, or have been altogether ignorant. Likewise whether they have said anything against the person of the plaintiff, why he may not bring an assise, or against the person of: the defendant, why he may not except against an assise, either because they say that on ac- count of an error in the writ it cannot stand, or they answer ac- cording to those things, which are enjoined to them, and which pertain to the assise only. But if they have spoken with cer- , tainty concerning those things which pertain to the assise, and not against the writ, then it is either true or false. If true, their ver- dict must stand, nor will a conviction have to be feared. But if false, then either knowingly ( wr ignorantly: if knowingly, they commit perjury; but if ignorantly, as if they have been led by any15S just mistake, they are excused of grace. But if they have spoken with uncertainty, the judge ought to examine, that he may bring certainty out of uncertainty, clearness out of obscurity, truth out of doubt; otherwise their oath will be doubtful and perilous, and ) , } henee might follow a fatuous judgement. But if the jurors are altogether ignorant about the fact, and know nothing concerning the truth, let there be associated with them others who do know the truth. But if even thus the truth eannot be known, then it will be requisite to speak from belied ancl consciel [ee At least. And in that case they do not commit perjury, because they do not go against their conscience, as will be explain (| more fully in treat ing’ ot Gi nvictions. The re V ill be plac fol a Cl rtifi ate, it they have bee n insuttic L¢ ntly examined, or have hot fully answert the questions, so that they have spoken obscurely or ambiguously, or have been deceived by a just error. Likewise if they have S] yen against the person of the plaintiff, wherefore he is not entitl d to an assise, or against the person of the defendant, that he can not except: if they have said this falsely, they commit perjury and fall under conviction, because the assise is held after the manner of an assise, which would not be the case if it were held after the manner of a jury, as would be the case if an exception of this kind, to wit, a cause, state, or convention, or condition, or such ik should be raised by one party against the other party, and both parties should place themselves of their own accord on this subject upon a jury, when they have perhaps no other proof. Likewise if the jurors should say that the writ has been wrongly drawn, be- cause there has been an error perhaps in the counties and in the names of the vills, and the names of the persons, or the surnames, or in the names of dignity or such like; there will not be much importance in this, because this objection has not been taken by the defendant by way of exception. Concerning, however, the names of the counties and the vills, it does not much matter, provided it is clear respecting the place, nor even concerning the names ot the persons, provided it 1S clear respecting the persoxis. And because the defendant might have excepted at the commence- ment (if he wished), against the writ, and he has not excepted, from the time when he forthwith put himself on the assise, dis- sembling the error, he has approved the writ as if it were valid, and even although the jurors may have erred in this part, they do not commit perjury, since they are not consenting to a falsehood,154 HISTORY OF THE COMMON LAW because he who errs, does not consent. Likewise as a most diligent examination belongs to the justice, so a just delivery of a sentence pertains to him; but he ought before the judgment to examine the fact and the declarations of the jurors, that he may proceed SE- a eurely to judgment. | And since the oath has in itself three companions, truth, Jus- tice, and judgment, so truth is to be found in the jurors, but jus- tice and judement in the judge. It seems, however, that some- times judgment pertains to the jurors, as when they have to say upon their oath (according to their conscience, however, } whether such an one has disseised such an one, or has not dis- seised him, and according to this let judgment be rendered. But since it belongs to the judge to pronounce and to render a just judgment, it will behove him diligently to deliberate and examine, whether the declarations of the jurors contain in themselves the truth, and whether their judgment has been just or fatuous, lest it should happen that through following their declarations and their judgment, he as judge should make a false or a fatuous judgment. Frencu Porrricat Sone, about 1270. (From Leroux de Liney, Recueil de Chants Historiques Frangais, i. 218). Editors’ translation. Men of France, how you are dismayed! To all of you who are born on a fief, I say, So help me God! you are no longer free. Your liberty has been taken from you far away, For you are tried by jury. Mirror or Justices, chap. V, § 1, nos. 19, 35, 77, 126, 134, 136. 19. It is an abuse that justices drive a lawful man to put him- self upon his country when he offers to defend himself against an approver by his body. h 35. It is an abuse to charge the jurors to make presentment of wrongs done by neighbour to neighbour. 77. It is an abuse that writs of attaint are not granted in the chancery without difficulty for the attaint of all false jurors, as well in all other actions, personal, real, or mixed, as in the petty assizes. 126. It is an abuse that there is no trial by battle in personal actions as there is in case of felony.THE JURY 155 134. It is an abuse to force jurors or witnesses to say what they do not know by distress of hunger and imprisonment, when their verdict is that they know nothing. 136. It is an abuse not to examine the jurors until one finds at least two of them in agreement. Britton, Bk. I, chap. 5. Nichols’s translation. Afterwards let the jurors be charged of what fact they are to speak the truth. And then let them go and confer together, and be kept by a bailiff, so that no one speak to them; and if any one does so, or if there be any one among them who is not sworn, let him be committed to prison, and all the rest amerced for their folly in suffering: it. 10. If they can not all agree in one mind, let them be separated and examined why they can not agree; and if the greater part of them know the truth and the other part do not, judgment shall be ' according to the opinion of the greater part. And if they declare upon their oaths, that they know nothing of the fact, let others be called who do know it; and if he who put himself on the first inquest will not put himself on a new jury, let him be remanded back to penance till he consents thereto. Anonymous Case, Common Puras, 1293. (Year Book 21 and 22) Widiwe der 2 Rovusery (J. to the assise): How say you he is next heir? The 73.) Thayer’s translation. AssizE: Because he was born and begotten of the same father and the same mother, and his father on his death-bed acknowledged that he was his son and heir. Rovusrry (J.): You shall tell us in another way how he is next heir or be shut up without meat or drink till tomorrow morning. And then they said he was born betore the ceremony, but after the betrothal. Anonymous Casr, 41 Lis. Assisarum, 11 (1367). Thayer’s translation. In another assise before the same justices at Northampton, the assise was sworn; and they were all agreed but one, who would not agree with the xi, and afterwards they were remanded, and remained all day and the next day without eating or drinking, and afterwards the justices demanded of him if he would agree56 HISTORY OF THE COMMON LAW with his companions, and he said never, for he would die first in prison. Wherefore they took the verdict of the xi and commanded him to prison. And upon this a day was given in the Common Bench on the matter of the verdict. Kirketon [counsel for plain- tiff] prayed judgment on the verdict, ete. Torre (C. J.) said they were all agreed that this was not a verdict taken from xi and that a verdict could not be taken from xi. But Kirketon told how Writoversy (J.) in trespass took the verdict of xi and sent the twelfth to prison and the attaint was sued against the x1. And also W. THorPE present king (1345) took verdict of x. TuHorPE (C. J.)-: That J.) in an assise of the xx year of the is no example to us, for they were greatly reproved for this. And afterwards by assent of all the justices it was held that this was not a verdict, wherefore judgment was that the panel be quashed and null, that he who was in prison be delivered, and that the plaintiff sue a new venire facias. . . . Note that the justices said that they ought to have carried the assise with them in a cart until they were agreed. Forrescur, Dr Laupisus Lecum Anerig, chaps. 25, 26 (about 1468). Gregor’s translation, revised by the Editors. 25. Whensoever the parties contending in the King’s Courts are come to the issue of the Plea, upon the matter of fact, the justices forthwith, by virtue of the King’s writ, write to the sheriff of the county, where the fact is supposed to be, that he should cause to come before them, at a certain day, by them appointed, twelve good and lawful men of the neighborhood, where the fact 1s sup- posed, who stand in no relation to either of the parties who are at issue, in order to recognise upon their oaths, if the fact be really a fact, as one of the parties alleges, or whether it be not a fact, as the other contends. At which day the sheriff shall make return of the said writ before the same Justices, with a panel of the names of them whom he had summoned for that purpose. In case they appear, either party may challenge the array, and allege that the Sheriff had acted therein in favor of the other party, (viz.) by summoning such as are not indifferent; which exception, if it be found to be true upon the oath of two men of the same panel pitched on by the Justices, the panel shall imme- 1See 2 Holdsworth, 569-570.THE JURY 157 et0O the Coron on ll wri diately be quashed and then the Justices sh: ers of the same County, to make a new panel; in case that like wise should be excepted against, and be made to appear to be corrupt and vicious, this panel also be quashed. Then the justices shall choose two clerks of the eourt, or others of the same coi nty, who, sitting in the court, shall upon their oaths, make an indiffer ent panel, which shall not be except cd to bys either of the parties ; but being so impanelled and appearing in Court, either party may except against any particular person; as he may at all times, and in all cases, by alleging that the person so impanelled is of kin, either by blood or athnity to the other party ; or in some such par ticular friendship, so that he can not be deemed an indifferent person to reveal the truth between p< rties, of which sort of exe p- tions there is so much variety, as 1S impossible to shew in a small compass; if any one of the exceptions appear to the Court to be true and reasonable, then he against whom the exes ption is taken, 1 } ne panel ; t shall not be sworn, but his name shall be struck out of l1 i in like manner shall be done with all the rest of the panel; until twelve be sworn so indifferent, that neither of the parties can have any matter of challenge against them: Out of these twelve, four at least, shall be dwelling in the Hundre dd where the Vill is situate, in which the fact disputed is supposed to be, and every one of the Jury shall have lands or revenues for the term of his life, of the yearly value at least of twelve crowns. This method is observed in all actions, criminal, real or personal; except where in p ‘rsonal actions, the damages, or thing in demand, shall not exceed forty marks English money: because, in such like actions of small value, it is not required that the Jurors should be able to expend so much; but they are required to have lands or revenues, to a competent value at the discretion of the Justices: otherwise, they shall not be accepted ; lest by reason of their meanness and poverty, they may be liable to be easily corrupted, or suborned; and im case, after all exceptions taken, so many be struck out of the panel, that there does not remain a sufficient number to make up the jury, then it shall be given in charge to the Sheriff, by virtue of the Kine’s writ, that he add more Jurors; which is usually and often done, that the enquiry of the truth upon the issue in question may not remain undecided, for want of Jurors. ‘This is the form how Jurors, who enquire into the truth, ought to be returned, chosen and sworn in the King’s Court; it remains to enquire and COT Be nee et taro a ae158 HISTORY OF THE COMMON LAW explain, how they ought to be charged and informed as to their declaration of the truth of the issue before them. 96. Twelve good men and true men being sworn, as in the manner above related legally qualified, that is, having over and besides their movables, possessions in land sufficient (as was said) wherewith to maintain their rank and station, neither suspected by nor at variance with either of the parties, and all of the neigh- borhood; there shall be read to them in English, by the court, the Record and process of the plea, at length, which is depending be- tween the parties; and the issue thereupon shall be plainly laid before them concerning the truth of which those who are sworn are to certify the court; which done, each of the parties, by them- selves or their Counsel, in presence of the court, shall declare and lay open to the Jury all and singular the matters and evidences whereby they think they may be able to inform the Court concern- ine the truth of the point in question; after which each of the parties can produce before the Court all such witnesses as they please, or can get to appear on their behalf; who being charged by the justices upon their oaths upon the Holy Gospels of God, shall testify all that they know concerning the truth of the fact, concern- ing which the parties are at issue: and, if necessity so require, the witnesses may be heard and examined apart, till they shall have deposed all that they have to say, so that what the one has declared shall not inform or induce another to say the same. When all this is finished, the jurors shall confer together, at their pleasure, as they shall think most convenient, upon the truth of the issue before them, with as much de- liberation and leisure as they can well desire, being all the while in the keeping of an officer of the Court, in a place assigned to them for that purpose, lest anyone should attempt to suborn them. Lastly, they are to return into the court and certify the Justices upon the truth of the issue so joined in the presence of the parties (af they please to be present), particularly the plaintiff in the cause; what the Jurors shall so certify in the Laws of England, is called the verdict and according to the nature of the verdict, the Justices shall render and form their judgment. Notwithstand- ing if the party against whom such verdict is obtained, complain that he is thereby aggrieved, he may sue out a writ of Attaint both against the Jury and also against the party who obtained; in virtue of which, if it be found upon the oath of twenty-four menTHE JURY 159 (returned in manner before observed, chosen and sworn in due form of law, who ought to have much better estates than those who were first returned and sworn), that those, who were of the original panel have made a talse oath: every one otf the first Jury shall be committed to the King’s prison, their eoods shall be econ- fiseated, their possessions seized into the Kine’s hands, their habi- tations and houses shall be pulled down, their wood-lands shall be felled, their meadows shall be plowed up and they themselves ever thenceforward be esteemed, in the eye ot the law, infamous, and in no case whatsoever are they to be admitted in testimony of the truth; the party who suffered in the former trial, shall be restored to everything he lost through occasion of such their false verdict. Who then, (though he should have no regard to his soul’s salva- tion) being so charged upon his oath would not declare the truth from the bare apprehensions and shame of so heavy a punishment, and the very great infamy which attends a contrary behavior ? And if, perhaps, one or more among them should be so unthinking or daring as to prostitute their own character, yet the rest of the Jurors, probably would set a better value on their reputations ] I Yr Y 1 than suffer either their good name or possessions to be destroyed and seized in such a manner; now, is not this method of coming at the truth better and more effectual than that way ot proceeding, which the Civil Laws prescribe? No one’s cause or right is, in this case, lost, either by death or failure of witnesses. The Jurors returned are well known, they are not corrupt; neither strangers, nor people of uncertain characters, whose circumstances or preju- dices may be unknown. The witnesses [7.e., jurors] are of the neighborhood, able to live of themselves, of good reputation and unexceptionable characters, not brought before the Court by either of the parties, but chosen and returned by a noble and impartial officer, and obliged under a penalty to appear upon the trial. They are well acquainted with all the facts, which the witnesses depose, and with their several characters and inconsistencies. What need more of words? There is nothing omitted which can discover the truth of the case at issue, nothing which can in any respect be concealed from, or unknown to a Jury, who are so appointed and returned, I say, as far as it is possible for the wit of man to devise.ee ene een eee 160 HISTORY OF THE COMMON LAW Anonymous Case, Common Pumas, 1514 (1 Dyer, 37D). Note, That in Hill, Term 6. H. 8. Rot. 358 it was alleged in arrest of the verdict at nisi prius, that the jurors eat and drank: and it was found, upon examination, that they were agreed before and when they came back to give their verdict, they saw REDE, Chief Justice, going on the way to see an affray, and they followed him, and in eoing, they saw a cup and drank out of it; and for this, they were fined each forty pence; and the plaintiff had judgment upon the verdict; and error brought upon it. Anonymous Casr, Common Prieas, 1562 (2 Dyer, 218a). A juror fined in Banc, who at the assizes having eaten would not agree with his fellows, though on being sent back he did agree, and the verdict allowed. Srarute or 23: Henry VIII, chap. 3 (1531). An act against perjury and untrue verdicts. The King our sovereign Lord of his most goodly and gracious disposition, calling to his remembrance how that perjury in this land is in manifold causes by unreasonable means detestably used, to the disheritance, and great damage of many and great numbers of his subjects well-disposed, and to the most high displeasure of Almighty God, the good statutes against all officers having return of writs and their deputies, making panels partially for rewards to them given, against unlawful maintainers, embracers, and jurors, and against jurors untruly giving their verdict notwith- standing; for reformation whereof, and forasmuch as the late noble King Henry the Seventh provided remedy for the same by a statute made in the eleventh year of his reign, which statute 1s now expired : II. Be it therefore now enacted by the King our sovereign Lord, and the lords spiritual and temporal, and the commons in this present parliament assembled, and by authority of the same, That upon every untrue verdict hereafter given betwixt party and party, in any suit, plaint, or demand, before any justices, or judges of record, where the thing in demand, and verdict thereupon given, extendeth to the value of xl. li. and concerneth not the jeopardy of man’s life, to the party grieved by the same verdict shall have a writ of attaint against every person hereafter so giving an untrue161] verdict, and every of them, and against the party which shall have judgment upon the same verdict; (2) and that in the same attaint there shall be awarded afvalnst the petit 1ury,. thy party nel +i . I 347 x7 - . lo tne sane d the grand jury, summons, resummons, and distress infinite, a : eee a which grand jury shall be of like number as the grand jury is now in attaint, and every of them that shall Pass in the same, shall have lands and tenements to the value of twenty marks by the vear of freehold, out of the ancient demean; (3) and upon the distress, which shall be delivered of record upon the same, open proclamation to be made in the court there; (4 the distress shall be awarded more than fifteen days afore the return of the said distress, and every such distress shall be made upon the land of every ot the said erand 1 ry, as in other distresses is and hath 1] - 7 ) ° peen used: tonya) and Lt Tne Salad party cet nd; nO the pi tlt Jurors, or any ol them, appear not upol the distress, then the orand jury to be taken against them and every « them that shall So make default: (6) and if anv of the said petit Jury appear, then th e « * A Darvty complainant in that behalf shall assien the false serement of the first verdict untruly given, whereunto they of the petit jury shall have no answer, 14 they be the same persons, and the writ process, return and assignment good and lawful except that the demandant or plaintiff in the same attaint hath atore been hon- suit, or discontinued his suit of attaint taken for the same, or hath for the same verdict, in a writ of attaint, had judgment against the said petit jury, but only that they made true serement, which issue shall be tried by twenty-four of the said grand jury; (7) and the party shall plead that they gave true verdict, or any other matter which shall be a sufticient bar of the said attaint; (8) and that plea notwithstanding the grand jury to be taken without delay, to enquire whether the first jury gave true verdict or no. ITI. And if they find that the said petit jury gave an untrue verdict, then EVery ot the said petit jury to torteit KONE li. whereot the one half shall be to the Kine our soverelen Lord, and the other half to the party that sueth. [V. And over that, That every of the said petit jury shall severally make fine and ransom, by the discretion of the justices before whom the said false serement shall be found, after their several offences, defaults, and sufficiency of every of the said petit 2) and after that, those of the said petit jury so attainted 1] jury ; 2am e cig eo162 HISTORY OF THE COMMON LAW hall never after be in any credence, nor their oath accepted in any court; (3) and if such plea as the party pleadeth, which is a bar of the said attaint, be found, or deemed against him that so pleadeth, then the party that so sueth, shall have judgment to be restored to that es ie vith his reasonable costs and damages. V. Foreseen alway, That any utlare in action or cause per- sonal, or excommengement eee or alleged in the party plain- tiff or demandant, shall be taken but as a void plea, and to that he shall not be put to answer; (2) and that in all the aforesaid process such day shall be given as in a writ of dower, and none essoin or protection to lie. nor to be allowed in the same; (3) and if the said grand jury ee ir not upon the first distress had against them, so that the jury for their default do remain, he that maketh default shall forfeit to the King xx. s. and upon the second distress xl. s. and after making default, for every such default li. and like penalties and forfeitures to be against them, and every of them, that shall be named in the Tales, as is before ex- pressed against every of the said grand jury aforesaid; (4) and that for and by the death of the party, or any of the said petit jury, the said attaint shall not abate, nor be de ferred against the remnant, as long as two of the said petit jury be alive. VI. And if hereafter any false verdict be given in any action, suit, or demand afore any justice or judge of record, of any thing personal, as debt, trespass, and other like, which s shall be under the value of xl. li. that then the party grieved shall have attaint, with such process and pleas as is afore rehearsed, and delays to be taken away, as is afore remembered; (2) except that in this case of attaint, every person of the grand jury that may dispe nd v. marks by the year of freehold out of ancient demean, or is worth an hundred marks of goods and chattels, shall be able to pass in the same attaint. (3) And if the petit jury be attainted, that then they shall in this case of attaint every of them to forfeit v. h. whereof one half shall be to the King, and the other half to the party, after the form afore rehearsed, and over that to make fine and ransom by the diseretion of the justices, as is aforesaid. VII. And if there be not persons of such sufficiency within the shire or place where any of the said attaints shall be taken, as may pass into the same, be it ordained by the authority abovesaid, That then one Tales shall be awarded into the shire next adjoining, by the diseretion of the justices afore whom the same attaints shallTHE JURY 163 be taken, which shall be warned to appear upon like pains as aforesaid, and enabled to pass in the said attaints, as if they were dwelling in the shire where the same attaint shall be taken. (2 And that the same lav s, action and remedy ordained by this present act, pe kept for and to all them that shall be grieved by such untrue verdicts of any inheritance in descent, reversion, re mainder, or ot any fre ehold in reversion or remain ler. (to And if the party in attaint given by this act be nonswit, or the sam 1 a r so aiscontinu discontinue, that then the same party so nonsuit, ing the said attaint, make fine and ransom by the discretion of th justices afore whom the said attaint shall be taken and d pending. VIII. And that all attaints hereafter to be taken, shall be taken afore the King in his bench, or afore the justices of the common place, and none in other courts; (2) and that nisi prius shall be eranted by discretion of the justices upon the distress; (3) and every of the said petit jury may appear, and answer by attorney 1 the said attaint; (4) and that the moiety of the said forfeiture ot the petit jury shall be | vied to the use of our soverelen Lord } the Kine bv canias ad satisfaciendum, or fu ru fac or elegit, or by 6m M. i , : ; action of debt against every person of the petit jury so ancl against his executors and administrators, hs Vine’ then sul cient ooods ot the ir said testator not administered, and the moiety shall by like process be levied to the use of the party that sueth any attaint given by this act against every of the said petit jury and his executors or administrators, having then suthciency of goods, as is aforesaid, not administer d: (5) this act, and execu tion thereof to be had, and like judement for the party defendant or tenant, to be discharged of restitution, as afore this present act in case of a grand attaint hath been used; (6) and if there be 1 attaint, that the nonsuit or re divers plaintiffs or demandants 1 lease of any of them shall not be in any wise hurtful or prejudicial to the residue, but that they and every of them in such cases may be summoned and severed, like as it is used when there be divers demandants in actions real. Coxe on Lirrreron, 155a (1628). “Quod faciat 12 liberos et legales homies de vicineto, etc.” Albeit the words of the writ be dwodecim, yet by ancient course the sherife must return 24; and this is for expedition of justice: for if 12 onely be returned, no man should have a full jury appear, Rae at Et em once og Pat iniana eagle164 HISTORY OF THE COMMON LAW or be sworn in respect of challenges, without a tales, which should be a great delay of tryalls. So as in this case, usage and antient course maketh law. And it seemeth to me, that the law in this ease delighteth herselfe in the number of 12; for there must not onely be 12 jurors for the tryall of matters of fact, but 12 judges ( f ancient time for tryall of matters of law in the Hachequer Cham- ber. Also for matters of state there were in ancient time twelve Counsellors of State. He that wageth his law must have eleven others with him, which thinke he says true. And that number of fwelve is much respected in holy writ, as 12 apostles, 12 stones, 12 trvbes, ete. BrsuEL’s Casr, Common Pras, 1670 (Vaughan, 135.) The King’s writ of Habeas Corpus . . . issued out of this court, directed to the then sheriffs of London, to have the body of Edward Bushel, by them detained in prison, together with the day and cause of his caption and detention, on Friday then next fol- lowing, before this Court, to do and receive as the court shall consider. [ Vaughan, C. J. delivered the opinion of the court from which the following extracts are taken: | In the present case it is returned that the prisoner, being jury- man, among others charged at the session court at the Old Baily, to try the issue between the King and Penn and Mead, upon the indictment for assembling -unlawfully and tumultuously, did against the fuil and manifest evidence openly given in court, ac- quit the prisoners indicted in contempt of the King, ete. The verdict of a jury, and evidence of a witness are very differ- ent things, in the truth and falsehood of them. A witness swears but to what he hath heard or seén, generally or more largely, to what hath fallen under his senses. But a juryman swears to what he ean infer and conclude from the testimony of such wit- nesses, by the act and force of his understanding, to be the fact cnquired after; which differs nothing in the reason, though much in the punishment, from what a judge, out of various cases con- sidered by him, infers to be the law in the question before him. The judse . . . cannot know the fact possibly, but from the evidence which the jury have, and consequently he cannot know the matter of fact, nor punish the jury for going against their evidence, when he cannot know what their evidcaee is. It is true,JURY THI if the jury were to have no other evidence for the fact, but what is deposed in court, the judge might know their evidence, and the tact from ite equally as they, and so direct what the law were even when the judge and jury might honestly lh the Case: thoue!l differ in the result from the evidence, as well as two judges may, happens. But the evidence which the jury have of the fact is much other A = than that: tor, being returned of the vicinage, whenee the caus ot action ariseth, the law supposeth them thence to have suth cient knowledge to try the matter in issue (and so they must) though no evidence were given on either side in court, but to this evidence the judg is stranger. 2. They may have evidence from their own personal knowledge, by which they may be as sured, and sometimes alG, that what is deposed in court, is abso- lutely false: but to this the judge is a stranger, an he knows no more of the fact than he hath learned in court, a1 d perhaps by fals depositions, and consequently knows nothing. D. Th jury may know the witnesses to be stigmatized and may be unknown to the parties, and consequentl In many cases the jury are to have view necessarily, in many, by consent. for their better information; to this evidence likewise the judge is a stranger. 5). Lf the \ do follow his cirectioi < they may be attainted, and the judgment reversed for doing that, which if they had not done, they should have been fined an prisoned by the judge which is unreasonable. 6. If they do not follow his direction, and be therefore fined, yet they may be at- tainted, and so doubly punished by distinct judicatures for the same 7. To what 1 offence. which the common law admits not. . . . (. end is the jury to be returned out of the vicinage whence the f the cause of action ariseth? To what end must hundredors be 01 . of the tact +} jury, whom the law sup] oseth to have nearer knowlede what end are wey than those of the vicinage in general? To . the array and poll ¢ To what end challenged so scrupulously t must they have such a certain freehold, and be probt a legales homines, anc not of affinity with the parties concerned ¢ To what cnd must they have in many cases the view for their exacter in formation chiefly? To what end must they undergo the heavy punishment of the villanous judgment, if after all this they 1m- licitly must give a verdict by the dictates and authority of another lic man, under pain of fines and imprisonment, when sworn to do it A RAR te OY PTET $So tee Agen icn eaetaiercere ation ei Aaa oer a ta ae ee me apnea ne senet ape Conn eye EAE eaten eS nore oh oe Se 166 HISTORY OF THE COMMON LAW according to the best of their knowledge ‘ A man cannot see by another’s eye, nor hear by another’s ear, no more can a man COn- clude or infer the thing to be resolved by another’s understanding or reasoning; and though the verdict be right the jury give, yet they being not assured it is so from their own understanding, are forsworn, at least in foro conscrentiae. 9. It is absurd a jury should be fined by the judge for not going against their evidence, when he who fineth knows not what it is; as where a jury find without evidence in court on either side. So if the jury find upon their knowledge, as the course is if the defendant plead solvit ad diem to a bond proved, and offers no proof. The jury is directed to find for the plaintiff, unless they know payment was made of their own knowledge, according to the plea. And it 1s absurd to fine a jury for finding against their evidence, when the judge knows but part of it; for the better and greater part of the evidence may be wholly unknown to him. [The jurors were discharged. | Woop v. Gunsron, Urrer Benon, 1655 (Style, 466.) Wood brought an action upon the case against Gunston for speaking of scandalous words of him; and amongst other words, for calling him a Traytor, and obteyns a verdict against him at the Bar, wherein the jury gave £1500 damages. Upon the suppost- tion that the damages were excessive, and that the jury did favour the Plaintiff, the Defendant moved for a new tryal. But Ser- eecant Maynard opposed it, and said that after a verdict the partial- ity of the Jury ought not to be questioned, nor is there any Presi- dents for it in our Books of the Law, and it would be of dangerous consequence if it should be suffered, and the greatness of the dam- ages given can be no cause for a new tryal, but if it were, the damages are not here excessive, if the words spoken be well con- sidered, for they tend to take away the Plaintiff’s estate, and his life. Windham, on the other side, pressed for a new tryal, and said it was a packed business, else there could not have been so ercat damages, and the Court hath power in extraordinary cases, such as this is, to grant a new tryal. Glyn, Chief Justice. It is in the discretion of the Court in some cases to grant a new tryal, but this must be a judicial, and not an arbitrary, discretion and it is frequent in our Books for the Court to take notice of mis- carriages of Juries, and to grant new tryals upon them, and it is for the people’s benefit that it should be so, for a Jury mayTHE JURY 167 sometimes by indirect dealings be moved to side with one party and not be indifferent betwixt them, but it cannot be so intended of the Court; wherefore let there be a new tryal the next term, and the Defendant shall pay full costs, and the judgment to be upon } this Verdict to stand for security to pay what shall be recovered upon the next verdict. Hixt v. Goats, Kine’s Benen, 1615 (1 Rolle, 257.) Sir Baptist Hixt had judgment in the Common Pleas against Goats and Fleetwood, and now on writ of error it was assigned for error that the covenant alleged was that whereas a bargain was | between the plaintiff and defendants, the made for certain land | defendant cove nanted that ii there det ndant had sald to the plaintitt that the land were not SO Many acres upon the measure as t] sold amounted to, that he would repay 111. d alleged that upon the measure so many for each aere which lacked of the number, an acres in certain were lacking as amounted at 11 Jl. an acre to 700 1., and the issue was whether they were lacking, and the jury found for the plaintiff and gaye 400 /. damages. Croke (of counsel for plaintiff in error): It seems that this issue is repugnant, for eki 9 as the ] laintifi alleged, Ki of necessity if so many acres were la they ought to find 700 7. damages, and if they do not find that so verdict ought not to be found against the many are lacking, the plaintiff. @oke (©. J.): It seems to be good enough, for there may be divers reasons why in equity they ought not to give so much damage as this amount, for it seems here that the jurors are chan- eellors, and it seems such verdict is good in an action on the case because only damages are to be recovered, but it is otherwise where a debt is to be recovered, and judgment was affirmed by the court as to this point. Eyires. Common Puras, 1766 (2 Wilson, 294.) leo RAVENCROFT V. Extract from the opinion of Wilmot, ¢ The quantum of damages is nothing to the purpose, for if the jury had power in this case to give damages, we must now take it that they have done right; and I am of the opinion that the jury were not confined to give the exact damages in the final judgment, but had a power and discretion to assess what damages they thought proper, for this being an action upon the case, the dam- ages were totally uncertain and at large. eeeemeeieaen Stree ee eo ee Soest Sr Teh re ee ee 168 HISTORY OF THE COMMON LAW [This was an action against a sheriff for permitting an impris- oned debtor to escape, so that the plaintiff lost the amount of his judgment against the debtor. | ALDER v. KrIGHLEy, ExcHEQUER oF PrEas, 1846 (15 Meeson & Welsby, 117.) The learned judge in summing up, directed the jury that the assignees were entitled to recover the 600 7. minus the 100 J. and the discount Pollock, ©. B. .. .”. “lhevques- tion is, what was the contract, and was it broken by the defendant ? No doubt all questions of damages, are, strictly speaking, for the jury; and however clear and plain may be the rule of law on which the damages are to be found, the act of finding is for them. But there are certain established rules according to which they ought to find; and here there is a clear rule—that the amount which would have been received if the contract had been kept, is the measure of the damage if the contract is broken. SEDGwick, Damages (1 Ed. 1847, 201-2). It is in truth but slowly, and at comparatively a recent period, that the jury has relinquished its control over even actions of con- tract, and that any approach has been made to a fixed and legal measure of damage. But by degrees the salutary principle has been recognized, and it is now well settled, that in all actions of contract . . . and in all cases of tort where no evil motive is charged, the amount of compensation is to be regulated by the direction of the court, and the jury cannot substitute their vague and arbitrary discretion for the rules which the law lays down. Wiemore, Eviprnor, I, § 8. The details of the history of the rules of evidence can best be examined while considering the particular rules each in its place. But it is worth while to notice here summarily the historical devel- opment of the general system in its main features, and the relative chronology of the different rules. Some notion can thus be ob- tained of the influence of certain external circumstances on the rules at large, and of some of the individual principles upon the others. The marked divisions of ehronology, for our law of evidence,THE JURY 169 may be said to be seven,—from primitive times to 1200 A. D., thence to 1500, thence to 1700, to 1790. to 1830, to 1860. and to the present time: (1) A. D. 700-1200. Up to the period ot the 1200s, the history of the rules of evidence, in the modern sense, is like the chapter upon ophidians in Erin; for there were none. Under the primi- tive practices of trial by ordeal, by battle, and by compurgation, the proof is accomplished by a judicium Det, and there is no room for our modern notion of persuasion of the tribunal by the cred- ibility ot the witni SSeS: for the tribunal merely veritied the ob- and did not conceive of these as servance of the due formalities, directly addressed to their own reasoning powers. Nevertheless, a few marks, indelibly made by these earlier usages, were left for a lone time afterwards in our law. The summoning of attesting witnesses to prove a document, the quantitative effect of an oath, the conclusiveness of a seal in fixing the terms of a documentary transaction, the necessary production of the original of a document these rules all trace a continuous existence back to this earliest time, although they later took on different forms and survived for reasons not at all connected with their primitive theories. (2) A. D. 1200-1500. With the full advent of the jury, in the 1200s. the general surroundings of the modern system are pre- pared ; for now the tribunal is to cdi termine out ot its own conscious 1ot merely by supervising external persuasion of the facts, and tests. The change is of course gradual; and trial by jury is as yet only one of several competing methods; but at least a system for the process of persuasion becomes possible. In this period, no new specific rules seem to have sprung up. The practice for att sting’ witnesses, oaths, and documentary originals is developed. The rule for the conclusiveness of a sealed writing is definitely estab lished. But during these three centuries the general process of pleading and procedure is only gradually differentiated from that of proof,—chiefly because the jurors are as yet relied upon to furnish in themselves both knowledge and decision; for they are not commonly caused to be informed by witnesses, in the modern sense. (3) A. D. 1500-1700. By the 1500s, the constant employment of witnesses, as the jury’s chief source of information, brings about a radical change. Here enter, very « our modern system. With all the emphasis gradually cast upon lirectly, the possibilities of OP aaa eee ON Co LeSe 170 HISTORY OF THE COMMON LAW the witnesses, their words and their documents, the whole ques- tion of admissibility arises. One first great consequence is the struggle between the numerical or quantitative system, which characterized the canon law and still dominated all other methods of proof,’ and the unfettered, systemless jury trial; and it was not for two centuries that the numerical system was finally repulsed. Another cardinal question now necessarily faced was that of the competency of witnesses; and by the end of the 1500s, the foun- dations were laid for all the rules of disqualification which pre- vailed thenceforward for more than two centuries, and in part still remain. At the same time, and chiefly from a simple failure to differentiate, most of the rules of privilege and privileged com- munication were thereby brought into existence, at least in embryo. The rule for attorneys, which alone stood upon its own ground, also belongs here, though its reasons were newly conceived after the lapse of a century. A third great principle, the right to have compulsory attendance of witnesses, marks the very beginning of this period. Under the primitive notions, this all rested upon the voluntary action of one’s partisans; the calling of compurga- tors and documentary attestors, under the older methods of trial, was in effect, a matter of contract. But as soon as the chief re- lance came to be the witnesses to the jurors, and the latter ceased to act on their own knowledge, the necessity for the provision of 1Sir Courtenay Ilbert makes the following remark in his article on Evi- dence in the Lneyclopaedia Britannica :—‘The rules of evidence [in systems derived from the canonical law] attempted to graduate the weight to be at- tached to different kinds of testimony and almost to estimate that weight in numerical terms. ‘Le parlement de Toulouse,’ said Voltaire, ‘a un usage trés singulier dans les preuves par témoins. On admet ailleurs des demi-preuves, ian mais 4 Toulouse on admet des quarts et des huitiémes de preuves.’ Modern continental procedure, as embodied in the most recent codes, has re- moved the worst features of inquisitorial procedure, and has shaken itself free from the trammels imposed by the old theory and technical rules of proof. But in this as in other branches of law. France seems to have paid the penalty for having been first in the field with codification bv lagging behind in material reforms. The French Code of Criminal Procedure was largely based on Colbert’s Ordonnance of 1670, and though embodying some reforms, still retains some of the features of the unreformed procedure which was condemned by Voltaire and the philosophes. Military procedure is in the rear of eivil procedure, and the trial of Captain Dreyfus at Rennes in 1899 presented some interesting archaisms, Among these were the weight attached to the rank and position of witnesses as compared with the intrinsic character of their evidence, and the extraordinary importance attributed to confession even when made under suspicious circumstances and supported by flimsy evidence.” [Editors note.]THE JURY such information, com y uls< rily if not oth rwise, became immedi ately obvious. The ide: progre ssed slowly ; it was enforeed firs for the Crown, next for civil parties; and not until the next period was 1t conceded t ‘eused persons. Thus was laid down indirect- ly the general p1 it there is no privilege to refuse to be a W1t) S O WI I h ther rules bove mentioned, subsequen ume contrasted as exceptions. A fourth important pr Dic Lh¢ lly nd pel cli nt in origin, here also arose and became fixer i i 1 A the end of this : the privilege against se]f-erimination The creature, unde rm, of the canon law 1 whieh it had a long histor was transferred, under stress of political turmoil, into Li ¢ ymmon law, and thus. by é sineular eontrast. came to be a most distinctive feature of our trial system. About the same period—the end of the 1600s—an equally dis- tincti feature, the rule against using an accused’s character, became settled. Finally, the ‘‘parol evidence” rule enlarged its scope, and came to inelude all writings and not merely sealed doeu nents; this development, and the enactment of frauds and perjuries, represent a special phase of thought in the end of this period. It ends, however, rather with the Restoration of 1660 than with the Revolution of 1688, or the last years of th century: for the notable feature of it is that the regenerating 1 sults of the struggle against the arbitrary methods of James I and 1} as earlv as the return of Charles II. Charles | beoan TO he telt The mark of the new period is seen at the Restoration. Justice, on all hands, then begins amend. Crudities which Matthew Hale permitted. under the Commonwealth, Scroggs refused, under James II. The privilege against self-crimination, the rule for two witnesses in treason, and the character rule—three landmarks of our law of evidence—find their first full recognition in the last days of the Stuarts. (4% A. D. 1700-1790. Two circumstances now contributed in to a further development of the law on two opposite sic S, 1ts philosophy and Its practical efficiency. On the one hand the final establishment of the right of eross-examination by coun f the 1700s. gave to our law of ev idence the de pe ndently sel, at the beginning o listinetion of possessing the most efficacious expedient ever in- vented for the extraction of truth (although, to be sure, like torture,—that great instrument of the continental system,—it 1s almost equally powerful for the creation of false impressions } Sater ae ie ca a ee mE neon172 HISTORY OF THE COMMON LAW A notable consequence was that by the multiplication of oral in- terrogation at trials the rules of evidence were now developed in detail upon such topics as naturally came into new prominence. All through the 1700s this expansion proceeded, though slowly. On the other hand, the already existing material began now to be treated in doctrinal form. The first treatise on the law of evidence was that of Chief Baron Gilbert, not published till after his death in 1726. About the same time the abridgments of Bacon and of Comyns gave many pages to the title of Evidence; but no other treatise appeared for a quarter of a century, when the notes of Mr. J. Bathurst (later, Lord Chancellor) were printed, under the significant title of the “Theory of Evidence.” But this pro- pounding of a system was as yet chiefly the natural culmination of the prior century’s work, and was independent of the expansion of practice now going on. In Gilbert’s book, for example, even in the fifth edition of 1788, there are in all, out of the three hundred pages, less than five concerned with the new topics brought up by the practice of cross-examination; in Bathurst’s treatise (by this time embodied in his nephew Buller’s “Trials at Nisi Prius”) the number is hardly more; Blackstone’s Commentaries, in 1768, otherwise so full, are here equally barren. The most notable re- sult of these disquisitions, on the theoretical side, was the estab- lishment of the “best evidence” doctrine, which dominated the law for nearly a century later. But this very doctrine tended to pre- serve a general consciousness of the supposed simplicity and nar- rowness of compass of the law of evidence. As late as the very end of the century, Mr. Burke could argue down the rules of evi- dence when attempted to be enforced upon the House of Lords at Warren Hastings’ trial, and ridicule them as petty and inconsider- able. But, none the less, the practice had materially expanded during his lifetime. In this period, besides the rules for impeach- ment and corroboration of witnesses (which were due chiefly to the development of cross-examination), are to be reckoned also the origins of the rules for confessions, for leading questions, and for the order of testimony. The various principles affecting docu- ments—such as the authorization of certified (or office) copies and the conditions dispensing from the production of originals— now also received their general and final shape. (5) A. D. 1790-1830. The full spring-tide of the system had now arrived. In the ensuing generation the established principlesTHE JURY 173 began to be developed into rules and precedents of minutiae rel- atively innumerable to what had gone before. In the Nisi Prius reports of Peake, Espinasse, and Campbell, centering around the quarter-century from 1790 to 1815, there are probably more rul- ings upon evidence than in all the prior reports of two ¢ nturies. In this development the dominant influence is plain; it was the inerease ot printed i ports ot Nisi Prius rulings. This was al first the cause, and afterwards the self-multiplying effect, of the nt of the rules. Hitherto, upon countless de eireuits ; detailed dev« lopm tails, the practice had varied oreatly on the ditterent f the experienced moreover, it had rested largely in the memory « leaders of the trial bar and in the momentary discretion of th In both respects it therefore lacked fixity, and was not judges. These qualities it now rapidl) amenable to tangible authority. eained. As soon as Nisi Prius reports multiplied and became available to all. the circuits must be reconciled, the rulings once made and recorded must be followed, and these precedents must be open to the entire profession to be invoked. There was, s speak, a sudden precipitation of all that had hitherto been sus pended in solution. This effect began immediately to b assiste new treatises, summing up and emphasized by the appearance of the recent acquisitions of precedent and practice. In nearly the same year, Peake, for England (1801), and McNally, for Ireland (1802), printed small volumes whose contents, as compared with t almost a different thos of Gilbert and Bull r, seem to represen system, so novel were their topics. In 1806 Evans’ Notes to Pothier on Obligations was made the vehicle of the first reasoned analysis of the rules. In this respect it was epoch-making; and its author in a later time once quietly complained that its pages were ‘“‘more often quoted than acknowledged.” The room for new treatises was rapidly enlarging. Peake and McNally, as hand- books of practice, were out of date within a few years, and no new editions could cure them. In 1814, and then in 1824, came Phil- in method combining Evans’ philosophy with lipps, and Starkie, There was now Peake’s strict reflection of the details of practice. indeed a system of evidence, consciously and fully realized. Across the water a similar stage had been reached. By a natural interval Peake’s treatise was balanced, in 1810, by Swift5s Connecticut book, while Phillipps and Starkie (after a period of sufficiency Ee Br a ea te Oeee eee eee Serene MMON LAW 174 HISTORY OF THE under American annotations) were replaced by Greenleaf’s trea- tise of 1842. (6) A. D. 1830-1860. Meantime, the advance of consequences was proceeding, by action and reaction. The treatises of Peake and Phillipps, by embodying in print the system as it existed, at the same time exposed it to the light of criticism. It contained, naturally enough, much that was merely inherited and traditional, much that was outgrown and outworn. The very efforts to supply explicit reasons for all this made it the easier to puncture the insufficient reasons and to impale the inconsistent ones. This be- came the office of Bentham. Beginning with the first publication, in French, of his Theory of Judicial Evidence, in 1818, the in- fluence of his thought upon the law of evidence gradually became supreme. While time has only ultimately vindicated and accepted most of his ideas (then but chimeras) for other practical reforms, and though some still remain untried, the results of his proposals in this department began almost immediately to be achieved. Mature experience constantly inclines us to believe that the best results on human action are seldom accomplished by sareasm and invective; for the old fable of the genial sun and the raging wind repeats itself. But Bentham’s case must always stand out as a proof that sometimes the contrary is true,—if conditions are meet. No one can say how long our law might have waited for regenera- tion, if Bentham’s diatribes had not lashed the community into a sense of its shortcomings. It is true that he was particularly favored by circumstances in two material respects—the one per- sonal, the other broadly social. He gained, among others, two in- comparable disciples, who served as a fulerum from which his lever could operate directly upon legislation. Henry Brougham and Thomas Denman combined with singular felicity the qualities of leadership in the technical arts of their profession and of energy for the abstract principles of progress. Holding the highest offices of justice, and working through a succession of decades. they were enabled, within a generation, to bring Bentham’s ideas directly into influence upon the law. One who reads the ereat speech of Brougham, on February T, 1828, on the state of the common law courts, and the reports of Denman and his colleagues, in 1852 and 1853, on the common law procedure, is perusing epoch-making deliverances of the century. The other circumstance that favored Bentham’s causes was the radical readiness of the times. TheFrench Re volution had acted in Eneland: and as soon as the Nap L¢ nie wars wer ver. the influe nee began evi entel Ove part 01 public opinion vas convinced that there must be a radical change; the other and dominant part felt assured that if change did not come as reform, it would come as revolution; and SO the reform was o}) en to pr Vent the re olution. In a sense, did not much matter to them where the reform came about I the economic, or the political, or the juridical field—if only there was reform. At this stage, Bentham’s d nouncine’ voice concen trated attention on the subject of public justice—eriminal law and civil procedure; and so it was here that the movement was felt among the first. As a matter of chronological order, the first iderable achieve wert L of criminal law, be- ginning in 1520, 1 KO} \la osh: then came thi political uphear L Re m Bill, in 1832, under Russ ll and Grey ; next, the economic 1 neration o ng with Huskisson and culminating with Peel in the Corn Law Repeal of 1846. Not until the Common Law Procedure Acts of 1852 and 1854 were large and final results achieved for the Benthamic ideas in pro eedure and evidence. But over the whole preceding twenty years had -been spread initial and constructive reforms. Brougham’s spee h of February fe ese was the real signal for the beminning of this epoch—a beginning which would doubtless have culminated more rapidly if urgent economic and p litical crises had not inter vened to absorb the legislative energy. In the United States, the counterpart of this period came only ] a little later. It seems to have begun all along the line, and was doubtless inspired by the accounts of progress made and making in Eneland, as well as by the le oislative eTrorts of David Dudley Field, in the realm of civil procedure. The pe riod from 1840 to i 1870 saw the enactment, in the various jurisdictions in this coun- try, of most of the reformatory le; islation which had been earried or proposed in England. (7) A. D. 1860. After the Judicature Act of 1875, and the Rules of Court (of 1883) which under its authority were formu- lated. the law of evidence in England attained rest. It is still overpatched and disfigured with multiplicitous fragmentary stat- utes, especially for documentary evidence. But it seems to be harmonious with the present demands of justice, and above all to be so certain and settled in its acceptance that no further detailed176 HISTORY OF THE COMMON LAW development is called for. It is a substratum of the law which comes to light only rarely in the judicial rulings upon practice. Fz otherwise in this country. The latest period in the develop- ment of the law of evidence is marked by a temporary degeneracy. Down to about 1870, the established principles, both of common law rules and of statutory reforms, were re-stated by our judiciary in a long series of opinions which, for careful and copious reason- ing, and for the common sense of experience, were superior (on the whole) to the judgments uttered in the native home of our law. Partly because of the lack of treatises and even of reports— partly because of the tendency to question imported rules and therefore to defend on grounds of principle and policy whatever could be defended—partly because of the moral obligation of the judiciary, in new communities, to vindicate by intellectual effort its right to supremacy over the bar—and partly also because of the advent, coincidentally, of the same rationalizing spirit which led to the reformatory legislation—this very necessity of restate- ment led to the elaboration of a finely reasoned system. The “mint, anise and cummin” of mere precedent were not unduly revered. There was always a reason given—even though it might not always be a worthy reason. The pronouncement of Bentham came near to be exemplified, that ‘so far as evidence is concerned, the English practice needs no improvement but from its own stores. Consistency, consistency, is the one thing needful. Pre- serve consistency, and perfection is accomplished.” But the newest States in time came to be added. New reports spawned a multifarious mass of new rulings in fifty jurisdictions —each having theoretically an equal claim to consideration. The liberal spirit of choosing and testing the better rule degenerated into a spirit of empiric eclecticism in which all things could be questioned and re-questioned ad infinitum. The partisan spirit of the bar, contesting desperately on each trifle, and the unjust doctrine of new trials, tempting counsel to push up to the appel- iate courts upon every ruling of evidence, increased this tendency. Added to this was the supposed necessity in the newer jurisdic- tions of deciding over again all the details that had been long settled in the older ones. Here the lack of local traditions at the bar and of self-confidence on the bench led to the tedious re-expo- sition of countless elementary rules. This lack of peremptoriness on the supreme bench, and (no less important) the marked sepa-eel ration of personality between courts of trial and eourts of final decision, led also to the multifarious heaping up, within each jurisdiction, of rulings upon rulings involving identical points of decision. This last phenomenon may be due to many subtly con- spiring causes. [but at any rate, the fact is that in numerous in- stances, and in almost every jurisdiction, recorded decisions of ] ] Supreme Courts upon precisely the same rule and the same ay] plication of it can be reckoned by the dozens and scores. This wholly abnormal state of things—in clear contrast to that of the on I + modern Enelish epoch is our own country. period ot develo} ment 1 Of thi chang that is next to come, and of the period of its arrival, there seem as yet to be no certain signs. Probably it will come either in the direction of the present English practice—by slow f rmation ot professional habits or in the directi n of al tempted legislative relief from the mass of bewildering judicial rulings—by a concise code. The former alone might suttice But the latter will be a false and futile step, unless it is founded upon the former; and in any event the danger is that 1 premature. ) kine’s letter. Wittoucusy, J.: The letter should have been sent to us, and then we should have commanded the sheriff to stay proceedings; but the sheriff could not legally by virtue of any such letter have stayed proceedings otherwise than by warrant from the same place from which he had the order to outlaw. Wherefore the sheriff was in merey [2.e., was fined] and a fresh exegi facias issued. (Pike’s translation. ) 1'The targe was another name for the privy seal, which bore the royal arms on a targe or shield: Tout, Chapters in Administrative History, ii. 283 n. 3. :MIE SUPREMACY OF LAW Forrescur, Dr Lavprsus Legum Anartan, chap. 9. A king of England, cannot, at his pleasure, make any alterations in the laws of the land, for he m S L by a government which not only regal, but political. Had it been merely regal he would have been above the laws, with power to make what alterations he pleased, and impose tallages and other hardships upon the people, whether they would or no, without their consent, which is the sort of government the civil laws point out, when thi cle clare Vuod prine lpr plac wrt Li gus habet 0) nm: but it Is mueh otherwise with a king, whose government is political, because he teration or change in the laws of the realm can neither make any a burthen them, against their eee y ] ) ee without the consent of th subject, nor burthen them, agzal wills, with strange impositions, so that a people governed by such laws as are made by their own consent and approbation enjoy their properties securely and without the hazard of being deprived of them, either by the king or any other.. (Gregor’s translation revised. ) Tire Prior oF CastTLEAcreE v. THE DEAN oF ST. STEPHENS, Com Mons ines. 106, (Ye Bb: Oi ee Vel dey KINGSMILL, J.: But, sir, the act of Parliament cannot make the king to be parson, for we through our law cannot make any n:; for nothing can do temporal man to have spiritual jurisdicti that except the supreme head. ee ee Palmes (arguendo upon reargument) : [Through the act of Parliament it seems the king cannot be called parson, for no tem Fo if it was ordained by act, CIc., that such a one should not pay tithes poral act can make temporal man have spiritual jurisdiction. to his curate, the act would be void, for of such thing as touches only the spiritualty, such temporal act can make no ordinance. The law is the same if it were enacted that one parson should have the tithes of another. So by this act which is only of a temporal court, the king cannot be made to have any spiritual jurisdiction. Fisuer, J.: And the king cannot be parson by this act of Parliament, nor can any temporal man through this act be called parson. : : a Frowicxr, C. J.: As to the other matter, whether the king can 1The point of the case was that a priory, which was “parson” of a church, had ‘been dissolved and its property vested in the Crown by an Act of Parlia- ment. Did the Crown thereby become “parson” of the chureh ? es Ree nd Nae 34i84 HISTORY OF THE COMMON LAW be parson by the act of Parliament, as I understand it there is not much to argue. For I have not seen that any temporal man ean be parson without the agreement of the supreme head. And in all the cases that have been put, namely of the benefices in Wales and the benefices that laymen have to their own use, I have looked into the matter. The king had them by assent and agreement of the supreme head. So a temporal act without the assent of the supreme head cannot make the king parson.’ Darcy vy. ALLEN, Court or Kine’s Brencn, 1603 (Moore, 671). In the King’s Beneh: an action on the case: and a count that, whereas men of mean trades and occupations in the commonwealth apply themselves to idle games with cards, the queen, by way of redress and restraint of this enormity, made letters patent to Ralph Bowes, authorizing him and his factors and deputies to provide playing cards, and prohibiting all others to import playing cards into the realm or to make or sell them in the realm for a certain term of years now expired, and [reciting the grant] she made an- other lke grant to Darey, who provided ecards accordingly ; yet the defendant brought cards into the realm and sold them and did things contrary to the privilege granted to the plaintiff, and to his damage to the amount of £2,000. The defendant pleaded the customs of London that a freeman may buy and sell all things merchantable, and that, since he was a freeman and haberdasher of London, and cards were things merchantable, he bought and sold them; and he demanded judgment. The plaintiff demurred mlaw. . . . Afterwards, Mich. 44 and 45 Eliz. (1602) it was areued by Dodderidge, against the patent, and by Fleming, soliei- tor, with the patent; and afterwards, the same term. by Fuller, against the patent, and Coke, Attorney General, with the Patent. And Dodderidge said that the case was tender. concerning the prince’s prerogative and the subject’s liberty and must be argued with much caution; for he that hews above his head chips will fall into his eyes, and qui majestatem scrutatur principis oppri- metur splendore ejus. Yet since it is the honor and safety of the princeto govern by the laws . . . therefore the princes of this realm have always been content that their patents and grants 1To appreciate the irony of these arguments, it 2% ‘ must be remembered that in twenty-eight years’ time an Act of Parliament will] transfer the title of Supreme Head” to Henry VIII. (Act of Supremacy, 1534).THE SUPREMACY OF LAW 185 should be examined by the laws, and so is her Majesty that now is. In this examination it has always been held that the queen’s grants procurt d against the usual and settled liberty of the subjects are void, and also those which tend to their grievance and oppres sion. It was resolved by Popham, Chief Justice, « per totam « uriam., that the said grant to the plaintiff ot the sole makine of cards within the realm was utterly void, and that for two reasons: 1. Chat IG Is a monopoly and agalnst the common law. Zi. That it is against divers Acts Ol Parliam«e nt. { Thayer’s translation. ) CONFERENCE BETWEEN Kine JAMES I. AND THE JUDGES OF ENG- xX > 2 \1 LAND, 1612 (12 Rep. 638. Note: Upon Sunday, the 10th of November of this same term, the king, upon complaint made to him by Bancroft, Archbishop of Canterbury, concerning prohibitions, was informed that when the question was made ot what matters the ecclesiastical Judges have cognizance, either upon the opposition of the statute concern ine tithes, or any other thine ecclesiastical, or upon the statute l El. concerning the high commission, or 10 any other eas in which there is not express authority in law, the King himself may decide it in his royal person; and that the Judges are but the delegates ot the kine, and that the kine may take what causes he shall please to determine from the determination of the Judges, and may determine them himself. And the Archbishop said that this was clear in divinity that such authority belongs to the king by the word of God in the scripture. To which it was answered by me in the presence and with the clear consent of all the Judges of Eneland, and Barons of thi Exchequer, that the King in his own person cannot adjudge any case, either criminal as treason, felony, ete. or betwixt party and party concerning his inheritance, determined and ad- chattels or e20ods, ete: but this ought to be judged in some court of justice, according to the law and custom of England, and always judgments are given, 7deo consideratum est per curiam so that the court gives the judgment ; and the King hath this court viz: in the upper house of Parliament, in which he with his lords is the supreme Judge over all other judges; for Nnelish Historical Review, 1See a discussion of this incident by Usher in 18 664 675.Se ee Fe Ss Sa ee ele Sea ELS Ol A ee ee Eee = 186 HISTORY OF THE COMMON LAW if error be in the Common Pleas, that may be reversed in the IXine’s Bench; and if the court of King’s Bench err, that may be reversed in the upper house of Parliament, by the King with the assent of the Lords spiritual and temporal, without the Commons, in this respect the King is called Chief Justice, and it appears in our books that the King may sit in the Star Chamber, but this was to consult with the Justices upon certain questions proposed to them, and not in judicio; so in the King’s Bench he may sit, but the court gives the judgment; and it is commonly said in our books that the king is always present in the court in judgment of law, but upon this he cannot be nonsuit; but the judgments are always given per curiam; and the Judges are sworn to execute justice according to law and the eustom of England. And it appears by the Act of Parliament of 2 Ed. 3 cap. 9, 2 Ed. 3 cap. 1, that neither by the great seal nor by the little seal justice shall be delayed; ergo, the king cannot take any cause out of any of his Courts, and give judgment upon it himself, but in his own cause he may stay it, it as it doth appear. 11 H. 4. 8. And the judges informed the King that no King after the Conquest as- sumed to himself to give any judgment in any cause whatever, which concerned the administration of justice within this realm, but these were solely determined by the courts of justice: and the king cannot arrest any man, as the book is in 1 H. 7. 4. for the party cannot have remedy against the King: so if the King give any judgment what remedy can the party have? Vide 39 Ed. 3 one who had a judgment reversed before the council of state; it was held utterly void, for that it was not a place where judgment may be reversed. Vide 1 H. 7. 4. Hussey, Chief Justice, who was Attorney no) Inal, 4b. reports that Sir John Markham, Chief Justice, said to King Edw. 4 that the King cannot arrest a man for suspicion of treason or felony, as others of his lieges may; for that if it be wrong to the party grieved, he can have no remedy; and it was greatly marvelled that the Archbishop durst inform the King that such absolute power and authority as is aforesaid be- longed to the King by Word of God. Vide 4 H. 4 cap. 22, which being translated into Latin, the effect is. judicia in curia Regs reddita non annihiletur, sed stet judicium in suo robore quosque per judicium curiae Regis tanquam erroneum, ete. Wide West 2 cap. 5. Vide le stat. de Marlbridge, cap. 1. Proviswm est con- cordatum, et concessum, quod tam majores quam nvinores tustitiamTHE SUPREMACY OF LAW L187 h) ne ¢ recipiant in curia domint Reais, et vide le stat. cde Magna Carta, cap. 29, 25 Ed. 3. cap. 5. None may be taken by petition or suggestion made to our lord the King or his council, unless by judgment: and 43 Ed. 3. cap. 3, no man shall be put to answer without presentment before the Justices, matter of record, or by due proofs, or by writ original according to the ancient law of the land: and if anything be done against it, it shall be void in law and held for error. Vide 28 Ed. 3. ec. 3. 37 Nd 3: cap. 18. Vide 17 R. 2. ex rotulis Parliamenti in Turri, art. 10. A controversy of land between parties was heard by the king, and sentence given, which was repealed, for this, that it did | e common law. ‘Then the Kine said that he thoueht elione to th w was founded upon reason, and that he and others had reason as well as the judges: to which it was answered by me that true it was, that God had endowed his Majesty with excellent , and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason ] ment ot law, which law is an art which requires lone ly and experience before that a man ean attain to the coeni- zance of it; and that the law was the golden met wand and measure to try the causes of the subjects and which protected his Majesty in safety and peace; with which the King was greatly offended nd said that then he should be under the law, which was treason to affirm, as he said: to which I said that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege. | Coke who was Chief Justice and spokesman of the judges is reporting this. | Den d. Bayarp v. SINGLETON. Court oF CoNFERENCE OF NorTH L. Caroura, 1787 (1 Martin, N. C. 42.)° Ejectment. This action was brought for the recovery of a valuable house and lot, with a wharf and other appurtenances, situate in the town of Newbern. The defendant pleaded Not guilty, under the common rule. 1 Other cases prior to the Federal Constitution are: Holmes v. Walton (N. J. 1780 2 Am. Hist. Assn. Papers, 45; Commonwealth vy. Caton (Va. 1782) 4 Call. 5; Rutgers v. Waddington (N. Y.1784), 1 Thayer, Cas. (enst. Law, 63; Weeden (RR. I. 1786), Id. 73.188 HISTORY OF THE COMMON LAW He held under a title derived from the State, by a deed, from a Superintendent Commissioner of confiscated estates. At May Term, 1786, Nash, for the defendant, moved that the suit be dismissed, according to an Act of the last session, entitled an Act to secure and quict in their possession all such persons, their heirs and assigns, who have purchased or may hereafter purchase lands and tenements, eee and chattels, which have been sold or may hereafter be sold by commissions of forfeited estates, legally appointed for that purpose, 1785, 7, 553. The Act requires the courts, in all cases where the defendant makes affidavit that he holds the disputed property under a sale from a commissioner of forfeited estates, to dismiss the suit on motion. The defendant had filed an affidavit, setting forth that the prop- erty in dispute had been confiscated and sold by the commissioner the district. This brought on long arguments from the counsel on each side, on constitutional points. At May Term, 1787, Nash’s motion was resumed, and produced a AWVEIny, lenethy debate from the Bar. Whereupon the court recommended to the parties to consent to a fair decision of t he property in question, by a jury according to the common law of the land, and pointed out to the defendant the uncertainty that would always attend his title, if this cause should be fee, without a trial; as upon a repeal of the present Act (which would probably happen sooner or later), suit might be again commenced against him for the same property, at the time when evidences, which at present were easy to be had, might be wanting. But this recommendation was without effect. The court, then, after eve ry reasonable anderen hy acl biéan use aed in vain for avoiding a disagreeable difference between the legis- lature and the judicial powers of the State, at length with much apparent reluctance, but with great deliberation and firmness, gave their opinion separately, but unanimously, for overruling the aforementioned motion for the dismission of the said suits. In the course of which the Judges observed, that the obligation of their oaths, and the duty of their office required them, in that situation, to give their opinion on that important and momentousTHE SUPREMACY OF LAW L89 subject ; and that notwithstanding the oreatl reluctance they micht feel against involving themselves in a dispute with the legislature of the State, yet no object of concern or respect could come in competition or authorize them to dispense with the duty they owed the public, in consequence of the trust they were invested ith under the soli mnity of their oaths. That they therefore wert bound tO declare that the Ny consider al. that whateyer disabilities the persons under whom the plaintiffs ; were said to derive their titles, micht justly have incurred, against their maintaining Ol pr sec iting any suits in the courts ot State; yet that such disabilities in their nature were merely per sonal, and not by any means capable of be ing transferred tO the present plaintiffs, either by descent or purchase; and that these plaintiffs, being citizens of one of the United States, are citi- zens of this state, by the confederation of all the States; which is to be taken as a part of the law of the land, unrepealable by any Act of the General Assembly. That by the Constitution every citizen had undoubtedly a right to a decision of his property by a trial by jury. For that if the legislature could take away this right, and require him to sti nd condemned in his property without a trial, it might with as much authority re quire his lite to be taken away with ut a trial by jury, and that he should stand condemned to die, without the formality of any trial at all; that if the members of the General Assembly could themselves the legislators of the State for life, without any further | do this, they might with equal authority, not only render election of the people, from thence transmit the dignity and au- thority of legis ation down to their heirs male forever. But that it was clear, that no Act they could pass, eould by any means repeal or alter the Constitution, because, if they could do this, they would at the same instant of time destroy their own existence as a legislature, and dissolve the government thereby established. Consequently the Constitution (which the judicial power was bound to take notice of as much as of any other law whatever). standing in full force as the fundamental law of the land, notwithstanding the Act on which the present motion was erounded, the same act must of course, in that instance, stand as abrogated and without any effect. Nash’s motion was overruled.a ae nee Se 190 HISTORY OF THE COMMON LAW Marsury v. Mapison, SupremE Court or THE Unitep States, 1803 (1 Cranch, 137, 175-178). Marswaut, C. J., said: The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to deeide it. That the people have an original right to establish, for their fu- ture government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be fre- quently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they pro- ceed is supreme, and can seldom act, they are designed to be per- manent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter deserip- tion. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitu- tion is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained ? The distinetion between a government with limited and unlimited power is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obhgation. It is a proposition too plain to be con- tested, that the constitution controls any legislative act repugnant to it; or that the legislature may alter the constitution by an ordi- nary act. | Between these alternatives there is no middle ground. The con- stitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.THE SUPREMACY OF LAW 191 If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd att mpts, on the part of the people, to.limit a power in its own nature illimitable. Certainly all those who have framed written constitutions con- template them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such govern ment must be, that an act of the legislature, repugnant to the con- stitution, is void. This theory is essentially attached to a written constituti n, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. [f an act of the legislature, repugnant to the constitution, is 1 void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though i law, does it constitute a rule as operative as if it was a would be to overthrow in fact what 1 as established in theory: and would seem, at first view, an absurdity too gross to be insisted It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial depart- ment to say what the law is. Those who apply the rule to pa ticular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on tl operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregard- ing the constitution ; or conformably to the constitution, disregard- ine the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the con stitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to maintaining that courts must close their eyes on the necessity of the constitution, and see only the law. This doctrine would subvert the very foundation of al] writtenSyrnarastronecmcennes temo ean ce nee ee Se ee Pare pre e 192 HISTORY OF THE COMMON LAW constitutions. It would declare that an act which, the principles and theory of our government, 1s yet, in practice, completely obligatory. It would 5 the legislature shall do what is expressly forbidden, withstanding the express prohibition, is in reality | ial would be giving to the legislature a practical and real om ti ae . > a 1 =. with the same breath which professes to restrict their powers W in narrow limits. It is prescribing limits, and declaring those limits may be passed al ple asure. That it thus reduces to nothing what we have deemed the o est Improvement on political institutions, a written constitut would of itself be sufficient, in America, where written const tions have been viewed with so much reverence, for rejecting construction. 1. Tue DevenormMEnNT or Equity? Mainz, Ancient Law, 28, 27. A general proposition of some value may be advanced respect to the agencies by which Law is brought into harmony 1 society. These instrumentalities seem to me to be three in n ber, Legal Fictions, Equity, and Legislation. Their histor order is that in which I have placed them. Sometimes two of t will be seen operating together, and there are legal systems w] have escaped the influence of one or other of them, But I k of no instance in which the order of their appearance has | changed or inverted. Che next instrumentality by which the adaptation of law t celal wants is carried on I eall Kquity, meaning by that word body of rules existing by the side of the original civil law, foun on distinct principles, and claiming incidentally to supersede eivil law in virtue of a superior sanctity inherent in those pri ples. The Equity, whether of the Roman Praetors or of the | lish Chancellors differs from the Fictions which in each case 1 Maitland, Equity, Lectures I and IT: Kerly. History of Equity; Sp History of the Equitable Jurisdiction of the Court of Chancery (2 vo Adams, Council and Courts. chap. VII; papers by Pollock and Haze in Essays in Legal History (ed. Vinogradoff); 5 Holdsworth, 215ff. Palgrave, Original Authority of the King’s Council; Dicey, The Privy Cou Baldwin, Select Cases in Council: Select Pleas in Court of in Selden Society Leadham, Select Pleas in Star Cha 2 ? : ‘ ‘ : ‘ Requests, and Baildon, Select Cases in ChancerTHE DEVELOPMENT OF EQUITY 193 7 ceeded it, in that the interference with law is open and avowed. On 1 the other hand, it differs from Lecislation, the agent oi lea proven nt which comes atter it, in that its elaim to authority is grounded, not on the pre rogative of any external pers mn or body, oes cee are not even on that Oot the magistrate who enunelates 1t, but on the special nature of its principles, to which it is alleged that all law ought to conform. The very conception of a set of principles, in 1 1 . 1 } vested with a higher sacredness than those of the ori: inal law, and demanding application independently of the consent of any ex ternal] body, belongs to a much more advanced Stage ¢ f thoueht than that to which leva] fietions originally sucveested thems lves, Extracts from Coxer’s Fourru Instirurse (written in the reien of James I.). In chancery are two courts, one ordinary, coram domino rege in 17 : ] . ] } ’ 7 cancetlaria, wherein the lord Chancellor or ] rd kee per of the great seale proceeds according tO the rig) line of the laws and Statutes or the re alm, secundum Le gem et consi fy dine nAn lia . Another extraordinary, according to the rule of equity. secundum aequun et bonum. And first of the former court. He hath power to hold plea ot SC ire Fac’ * for rept al ot th , Kine’s lett rs patents, of p tl tions, ot monstrans di drovts, traverse ot othees,* partitic ns 1 chancery, ot scure face upon recoonizanc $s in this court, writs of audita quere la and S¢ Lr fac’ in the nature of an da lita qu ? lat to avoid executions INethISecOUnG. 7 = ae and all personal actions by or against any ofticer or minister of that court in respect of their service or attendance therein. This court is officina justitiae, out of which all original writs t Sé ale 2O forth, and all commissions which pass under the gre: which oreat seal is clavis re gn, and for those ends this court is ever open. Having spoken of the court of ordinary jurisdiction, it followeth according to our former division, that we speak of the extraordi yf equity, secundum nary proceeding, according to the rule aequum et bonum. . . 1 Scire facias, order to show cause. 2 Showing of right. A proceeding to obtain relief against the crown. 3 Proceedings to recover property of which the crown has taken possession on escheat or forfeiture. 4 Proceedings for relief against a judgment by reason of subsequent events operating as a discharge. 2 13 OO ea et eee ee eee oe EeSs DE Ei ae Reis ere ee ee os ee ety 194 HISTORY OF THE COMMON LAW Albeit our ancient authors, the Mirrour, Glanvill, Britton and Fleta doe treat of the former Court in Chancery, and of original f the same, yet none of them writs and commissions issuing out 0 We have also considered do onee mention this court of equity. what eases in this court of equity have been reported in our books, and we find none before the reign of H. 6, and in that king's time and afterward plentifully. Goopwrn, Tur Equity or THE Kine’s CouRT BEFORE THE REIGN or Epwarp I., 12. If it would seem to be true that Glanvill and Bracton borrow their conception of equity from the aequitas ot the Roman law, they are, nevertheless, but applying new terms to an institution as essentially Teutonic as Roman. In the early Germanic State, the king exercised a jurisdiction based on broader principles of right and justice than that of the ordinary tribunals; he was not in a like degree bound down to the formality of the law and could de- cide the case before his court according to principles of equity. The Frankish king of the Merovingian period granted to those whom he had taken into his special protection a writ containing the privilege of withdrawing their suits from the local courts in favor of the king’s court, there to be decided secundum aequitatem. In the Carolingian period, the man who had suffered from the strictness and formality of the ordinary court, might seek allevia- tion (moderatio) from the king. Although the Roman law, which reserved the exercise of equity for the conszstorvwm principis, may well have had its influence on the court of the Frankish kings, nevertheless, as Professor Brunner clearly points out, the fact that the same equitable jurisdiction existed in Anglo- Saxon England, in Iceland, and in Sweden, proves its origin as a Germanic as well as a Roman institution. From the Srcutar Orpinancr or Epnear (959-975). Cap. 2. And let no one apply to the king in any suit, unless he at home may not be worthy of law or cannot obtain law. If the law be too heavy, let him seek a mitigation of it from the king; and for any bot-worthy crime, let no man forfeit more than his wer.THE DEVELOPMENT OF EQUITY 195 Mirrorp, Preapincs In CHANCERY (2-ed: his). 6: A suit to the extraordinary jurisdiction of the court of chancery, on behalf of a subject mi rely, is commenced by preterring a bill, in the nature of a petition, to the lord chancellor, lord keeper, or lords commission¢ rs for the custody of the ereat seal: or to the king himself in his court of chancery, in case the person holding the s¢ al is a party, or the seal is in the kine’s hands. But it the suit is instituted on behalf of the crown, or of those who partake of its prerogative, or whose rights are under its particular protec tion as the objects of a public charity, the matter of complaint is offered to the court by way ot information. elven by the proper otheer, and not by petition. Except in some few instances. bills and informations have always been in the English language; and a suit pret rred in this manner in the court of chancery has been there- fore commonly termed a suit by English bill, by way of distinction from the proceedings in suits within the ordinary jurisdiction of the court, which, till the statute of 4 Geo. II, c. 26 (1730). were entered and enrolled, more anciently in the French or Norman tongue, and afterwards in the Latin, in the same manner as the pleadings in the other courts of common law. Witi1am Dopp y. Jonn Brownrnea ET At. Temp. Henry Y. Calendars of Proceedings in Chancery, I, xiii. (This is the plaintiff’s bill.) To my worthy and gracious Lord Bishope of Wynchester, Chan- cellor of Yngelonde: Beseching mekely youre povre bedeman William Dodde. char- yotr, whech passed overe the see in service wt our liege lorde and was oon of his charioterys in his viages; & of his treste ffefed in my land Johan Brownyng and Johan : . . hull of Chekewell wt my wyfe, whech Johan & Johan after azenst my will & wetynge pot my land to ferme, and delyvered my meyable good the valewe of xx marke where hem leste; & thus they kepe my dede & the dentre wt my mevable good unto myne undoynge; also whech am undo for brusinge in service of cur lege lorde, & in service of yt worthy Princesse my lady of Clarence & ever wolde yet my lemys might serve worthy prince sone. At reverence of God and of that pereless Princes his moder, take this matre at hert of alms and charitie. ertealenemateiienia ea ee ee ee er Teal eee One Eenet terirg nore oe Secon eaters : ap ee ren MarGaret APPILGARTH V. ny 196 HISTORY OF THE COMMON LAW THOMAS SERGEANTSON. Temp. Henry VI. (1439). Calendars of Proceedings in Chancery, I, xh. (This is the plaintif’s bill. ) To the right reverent Fadre in God, the Bisshop of Bathe, Chaunceller of England. Besecheth mekely Margaret Appilgarth of York wydewe, that Thomas Sergeantson of the same, at divers times spak to where | hertly in hir conceit, and sought yor saide besecher ful sadly ant upon hir to have hir to wyfe, desiring to have of hir certain golde to the some of xxxvj li. for costes to bee made of their mariage, & to emploie in marchandise to his encrese & profit as to hir hus- bande. Whereuppon she havyng ful byleve & trust in his trouthe & langage, nor desiring of him eeny contract of matrymoyne, de- livered him the saide some at diverse tymes; aftre ‘the which liveree furthwith he nat willing to relivere the saide some to yor saide bisechere hathe take to wyfe an othre woman, in great deceit, hurt & uttre undooyng of hir, without yor eracieux help & socor in this partie. Please it to yor good grace to considre the premisses, and that yor saide bisechere no remedy hath by the lawe to get ageine the saide some; & ther upon to graunte appere afore you at a certaine comone a writ ageins the said Thomas to day upon a ce rtaine peyne by you to bee lymit, to bee examined upon - premisses ; & ther upon make him to doo as good feith & consciens wol in this partie. And she shall pray God for you. Anonymous Cass, Court or Common Prsas, 1464 GYeeBe EK. IV., 8, 9.) Digby’s translation. [Action of trespass quare clausum fregit. The defendant pleaded that plaintiff held the land to his use. Plaintiff de- murred. | Catesby (counsel for defendant) : Wherefore should the de- fendant not avail himself of this matter, when it follows by reason that the defendant enfeoffed the plaintiff to the use of the de- fendant, and so that the plaintiff is only in the land to the use of the defendant and the defendant made the feofiment to the plaintiff in trust and confidence? And the plaintiff suffered the defendant to occupy the land, so that by reason that the defendant occupied the land at his will, this proves that the defendant shall have the advantage of this feoffment in trust, in order to justity his oeeupation of the land by this cause We.THE DEVELOPMENT OF EQUITY 197 Mor I (Jp de This is a vood oround of defence in Chancery, for the defendant there shall aver the intent and purpose upon such a feoffment, for in the Chancery a man shall have rem< dy according to conscience upon the intent of such a feoffment, but here by the course of the common law in the Common Pleas or King’s Bench it 1s otherwise, for the feoftee shall have the land: and the feoffor shall not justify contrary to his own feoffment, that the said feof ment was made in confidence, or the contrary. Catesby: The law of Chancery is the common law of the land, and there the defendant shall have advantage of this matter and teottment: wherefore then shall he not have it in the Same man- ner here ? Morte (J.): That cannot be so here in this court, as I have already sald, for the common law ot the land is ditter nt from the law of Chancery on this point. RussELL’s Case, Kine’s Bencu, 1482 (Y. B. 22 E. IV, 37). In the Kine’s Beneh one Thomas Russell and Alice his wife brought a writ of trespass of the goods of the said Alice carried off dum sola fut: and the defendant comes and pleads not guilty: and was found guilty with damages £20 by inquest at Nisi Prius: and before the day in bane an injunction was issued out of the Chancery against the plaintiffs, that they should not proceed to judgement under pain of £100: wherefore the judgment Was stayed for a lone time. And then Hussry, the Chief Justice asked of Spilman and Fincheden, who were with the plaintiffs, if they wished to pray judgment according to the verdict. Fincheden: Yes, unless for doubt of the penalty involved in the injunction or for doubt of imprisonment of our client for non-obedience to the Chancellor ; otherwise we wish to pray judgment. Farrrax (J.): Notwithstanding the injunction he may pray judgment: for if the injunction was against the plaintiff himself, then his attorney may pray judgment, or é contra. Hussry (J.): We have communed of this matter among ourselves, and see not any harm which can come to the party, if he prayed judgment against him, for that he should have the sum contained in the injunction. The law would not wish to deny him this. I well know then there is noth- ing else except imprisonment in the Fleet. And as to that, if the Chancellor commits a man to the Fleet, as soon as you are there if you will give us cognizance we will issue a habeas corpus re-9 8 HISTORY OF THE COMMON LAW 1 turnable before us, and when he comes before us we will dismiss him: and so he shall not be put to great mischief; and all that we can do for him, we will do. But notwithstanding this, Fatrrax | said he should go to the Chancellor and ask of him if he would dismiss the injunction: and they demanded judgment: and they had [judgment] that they should recover their damages taxed by the inquest: but they would not give judgment to have damages for the vexation in the Chancery by injunction: and they said, that if the Chancellor would not dismiss him from the injunction, that, notwithstanding that, they would have given judgment, if the party wished to pray for it: quod nota, ete. Extracts from A RepricaTiIon OF A SERJAUNTE AT THE Lawes or ENGLAND TO CERTAINE PorntEs ALLEAGED BY A STU- | DENT OF THE Sarp Lawes or Encianp. Written temp. Henry VIII. in answer to certain points in the contemporary treatise called Doctor and Student. (Hargrave’s Law Tracts, S235) a [In Doctor and Student the student had explained that where a bond had been given and paid, but no release had been taken, though the bond was enforceable at law, the obligor might prevent suit upon it and obtain cancellation by a subpeena in chancery. To this the serjeant takes excep- tion. | I mervaile moche what authorite the chancellor hath to make such a writ in the Kinge’s name, and howe he dare presume to make soche a writ to let the Kinge’s subjects to sue his lawes, the which the kinge himselfe cannot do rightewiselye ; for he is sworne the contrarie, and it is saide hoc possumus quod de jure posswmus. Also the king’s judges of this realme, that bee appointed to minys- Reet Scie hom hee ter his lawes of his realme be sworne to minister his lawes of the realme indifferentlye to the kinge’s subjects; and so is not the chancellor. Also the serjaunts at the lawe be sworne to see the king’s subjects to be justifyed by the lawes of this realme deter- SEA e ern enters minable by the king’s judges and not by my lord chancellor. Yet this notwithstandinge, if the kinge’s subjects, upon a surmised bill put into the chauncerie, shal be prohibited by a subpcena to sue accordinge to the lawes of the realme, and be compelled to make aunsweare before my lord chauncellor, than shall the lawe of the realme be set as voyde and taken as a thing of none effecte, and 1See 5 Holdsworth, 269.THE DEVELOPMENT OF EQUITY 199 the king’s subjects shall be ordered by the discretion of the chaun- eellor and by no lawe, contrarie to all good reason and all good policy. And so me seemeth, that such a sute by a subpeena is not onlye against the law of the realme, but also against the lawe of reason. Also me seemeth, that it is not confoarmable to the lawe of God. For the lawe of God is not contrary in itself, that is to say, one in one place, and contrary in another place, if it be well perceyved and understood, as ye can tell, Mr. Doctour; but this lawe is one in one courte contrarie in another court. And so me seemeth, that it is not onlie againste the lawe of reason, but also against the lawe of God. Also me seemeth, that this suite by a subpeena is againste the common well of the realme. For the common well of everie realme is to have a good lawe, so that the | the more plaine and open that the lawe is, and the more knowledge subjects of the realme maie be justified by the same, an and understanding that the subject hath of the lawe, the better it is for the common well of the realme; and the more uncertaine that the lawe is in any realme, the lesse and the worse it is for the common well of the realme. But if the subjects of any realme shall be compelled to leave the lawe of the realme, and to be or- dered by the discretion of one man, what thinge may be more un- knowen or more uncertain? But if this manner of suite by a subpcena be maintayned, as you, Mr. Student, wold have it, in what uncertaintie shall the king’s subjects stande, whan they shall be put from the lawe of the realme, and be compelled to be ordered by the discretion and conscience of one man! And namelie for as moch as conscience is a thinge of great uncertaintie; for some men thinke that if they treade upon two strawes that lye acrosse, that they ofende in conscience, and some man thinketh that if he lake money, and another hath too moche, that he may take part of his with conscience: and so divers men divers conscience; for everie man knoweth not what conscience is so well as you, Mr. Doctour. Student. Howe is it than, that the chancellours of England have used this ? Serjaunte. Verelie I thincke for lacke of knowledge of the goodness of the lawes of the realme; for moste commonly the chan- eelours of England have been spiritual men, that have had but superficial knowledge in the lawes of the realme; and whan soch a byll hath been made unto them, that soche a man should have ES ene ire oe eeee Sa 200 HISTORY OF THE COMMON LAW oreate Wwronge to be compelled to paie two times for one thinge, the chancellour, not knowinge the goodness of the common lawe, neyther the inconvenience that mighte ensue by the saide writ of subpoena, hath temerouslye directed a subpoena to the plaintiff in the kinge’s name, commandinge him to cease his suite that he hath before the king’s justices, and to make aunsweare before him in the chauncerie; and he regardinge no lawe, but trustinge to his owne wit and wisdom, giveth judgment as it pleaseth himselfe, and thinketh, that his judgment being in soche authoritie is farre better and more reasonable than judgments that be given by the king’s justices according to the common lawe of the realme. In my conceite in this ease I may liken my lord chaunceler, which is not learned in the lawes of the realme, to him, that stands in the Vale of White-horse farre from the horse and holdeth the horse; and the horse seemeth and appeereth to him a goodly horse and well proportioned in every poinct, and that if he come neere to the place wher the horse is he can perceave no horse nor proportion of any horse. Even so it fareth by my lord chauncelor that is not learned in the lawes of the realme; for whan such a bill is put unto him, it appeereth to him to be a matter of great conscience and requireth reformation ; and the matter in the bill appeereth so to him, because he is farre from the understandinge and the knowl- edge of the lawe of the realme and the goodness thereof ; but if he draw neere to the knowledge and understanding of the common law of the realme, so that he maie come to the perfecte knowledge and goodness of it, he shall well pereeive that the matter contayned in the bill put to him in the chauncerie is no matter to be re- fourmed there, and namelie in soche wise as is used. Moreover, Mr. Student, I marvaile moche, that ye say that men that have wronge maye be holpen in many eases by a subpeena, in so moche as you have in your Natura Brevium sevrall writts and divers natures for the reformation of everie wronge that is donne and committed contrarye to the lawes of the realme; and amonge all your writs that you have in your Natura Brevium, ye have none there called subpcena, neyther yet the nature of him declared there, as ye have of all the writs specified in the saide booke. Wherefore me seemeth it standeth not with your studie, neither yet with your learninge of the lawes of the realme, that any man that is wronged should have his remedie by a subpeena. If a subpoena had been a as writ ordained by the lawe of the realme to reforme a wronge.THE DEVELOPMENT OF EQUITY 201 other writs in the saide book be, he shold have bin set in the booke of Natura Brevium, and the nature of him declared there, and for the reformation of what wronge it layeth, as it is in the an action was brought on a note under seal by which the defendant promised to pay to bearer 1001., and it was objected that the note was void because not made payable to a specific person. But it was said by the Court, “T'raditio facit chartam loqui, and by the delivery he (the maker) expounds the person before meant; as when a mer- chant promises to pay to the bearer of the note, anyone that brings the note shall be paid.” Jones, J., said that “it was the custom of merchants that made that good.” In Bromwich v. Lloyd * the plaintiff declared upon the custom of merchants in London, on a note for money payable on demand, and recovered; and Treby, C. J., said that “bills of exchange were originally between for- eigners and merchants trading with the English ; afterwards, when such bills came to be more frequent, then they were allowed between merchants trading in England, and afterwards between 12 Show. 160. 22 Tiutw. 1582.THE LAW MERCHANT any traders whatsoever, and now between any persons, whether trading or not; and, therefore, the plaintiff need not allege any custom, for now those bills were of that general use that upon an indebitatus assumpsit they may be given in evidence upon the trial.” To which Powell, J., added, “On indebitatus assumpsit for money received to the use of the plaintiff the bill may be left to the jury to determine whether it was given for value received.” In Walliams v. VW iliams? where the plaintiff brought his ac- tion as indorsee against the payee and indorser of a promissory note, declaring on the custom of m« rchants, it was object d on error, that the note having been made in London the custom, if any, should have been laid as the custom of London. It was an- swered “that this custom of merchants was part of the common law, and the Court would take notice of it ea officio; and, there- fore, it was needless to set forth the custom specially in the deec- laration, but it was sufficient to say that such a person secundum usum et consuetudinem mercatorum, drew the billea And the plaintiff had judgment. Thus far the practice of merchants, traders, and others, of treating promissory notes, whether payable to order or bearer, on the same footing as bills of exchange had received the sane- tion of the Courts, but Holt having become Chief Justice, a somewhat unseemly conflict arose between him and the merehants as to the negotiability of promissory notes, whether paya le to order or to bearer, the Chief Justice takine what must now be ad mitted to have been a narrow-minded view of the matter, setting his face strongly against the negotiability of these instruments, contrary, as we are told by authority, to the opinion of West minster Hall, and in a series of successive cases, persisting in holding them not to be negotiable by indorsement or delivery. The inconvenience to trade arising therefrom led to the passing of the statute of 3 & 4 Anne, ec. 9, whereby promissory notes were made capable of being assigned by indorsement, or made pay- able to bearer, and such assignment was thus rendered valid be- yond dispute or difficulty. It is obvious from the preamble of the statute, which merely recites that “it had been held that such notes were not within the custom of merchants,” that these decisions were not acceptable 1 Carth. 269. cae TE St ae eR EaSo en a Reopen iat seats eta Sok ae ete eee 230 HISTORY OF THE COMMON LAW to the profession or the country. Nor can there be much doubt that by the usage prevalent amongst merchants, these notes had been treated as securities negotiable by the customary method of assignment as much as bills of exchange properly so called. The Statute of Anne may indeed, practically speaking, be looked upon as a declaratory statute, confirming the decisions prior to the time of Lord Holt. We now arrive at an epoch when a new form of security for money, namely, goldsmiths’ or bankers’ notes, came into general use. Holding them to be part of the currency of the country, as eash, Lord Mansfield and the Court of King’s Bench had no diff- culty in holding, in Miller y. Race,’ that the property in such a note passes, like that in cash, by delivery, and that a party tak- ing it bona fide, and for value, is consequently entitled to hold it against a former owner from whom it has been stolen. In like manner it was held, in Collins v. Martin,? that where bills indorsed in blank had been deposited with a banker, to be received when due, and the latter had pledged them with another banker as security for a loan, the owner could not bring trover to recover them from the holder. Both these decisions of course proceeded on the ground that the property in the bank-note payable to bearer passed by delivery, that in the bill of exchange by indorsement in biank, provided the acquisition had been made bona fide. A similar question arose in Wookey v. Pole, in respect of an exchequer bill, notoriously a security of modern growth. These securities being made in favor of blank or order, contained this elause, “If the blank is not filled up, the bill will be paid to bearer.” Such an exchequer bill, having been placed, without the blank being filled up, in the hands of the plaintiff’s agent, had been deposited by him with the defendants, on a bona fide advance of money. It was held by three judges of the Queen’s Bench, Bayley, J., dissentiente, that an exchequer bill was a negotiable security, and judement was therefore given for the defendants. The judgment of Holroyd, J., goes fully into the subject, pointing out the distinction between money and instruments which are the representatives of:money, and other forms of property. “The iB ue! 21 B. & P. 648. aa Bee AldeanTHE MERCHANT LAW Courts,” he says, “have considered these instruments, either prom- ises or orders for the payment of money, or instruments entitling the holder to a sum of money, as being appendages to money, and following the nature of their principal.” After referring t authorities, he proceeds: “These authorities show, that not only money itself may pass, and the right to it may arise, by currency alone, but further, that these mercantile instruments, which en- title the bearer of them to money, may also pass, and the right to them may arise, in like manner, by currency or delivery. Thesi decisions proceed upon the nature of the property (7. e., money), to which such instruments give the right, and which is in itself current, and the effect of the instruments, which either give to their holders, merely as such, a right to receive the money, or Spec ify them as the persons ntitled to receive it.” Another very remarkable instance of the efficacy of usage is to be found in much more recent times. It is notorious that, with the exception of the Bank of England, the system of banking has recently undergone an entire change. Instead of the banker issu ing his own notes in return for the money of the customer depos ited with him, he gives eredit in account to the depositor, and leaves it to the latter to draw upon him, to bearer or order, by what 1s now called a cheque. Upon this state of things the general course of dealing between bankers and their customers has attached incidents previously unknown, and these by the decisions of the Courts have become fixed law. Thus, while an ordinary drawee, although in possession of funds of the drawer, is not bound to accept, unless by his own agreement or consent, the banker, if he has funds, is bound to pay on presentation of a cheque on demand. Even admission of funds is not sufficient to bind an ordinary drawee, while it is sufficient with a banker; and money deposited with a banker is not only money lent, but the banker is bound to repay it when called for by the draft of the customer (see Pott v. Clegg). Besides this, a custom has grown up among bankers themselves of marking cheques as good for the purposes of clear- ance, by which they become bound to one another. Though not immediately to the present purpose, bills of lading may also be referred to as an instance of how general mercan- tile usage may give effect to a writing which without it would 116 M. & W. 321. ete ny eect eo NaeoD HISTORY OF THE COMMON LAW not have had that effect at common law. It is from mercantile usage, as provided in evidence, and ratified by judicial decision in the great case of Inckbarrow v. Mason,’ that the efficacy of bills of lading to pass the property in goods is derived. It thus appears that all these instruments which are said to have derived their negotiability from the law merchant had their origin, and that at no very remote period, in mercantile usage, and were adopted into the law by our Courts as being in con- formity with the usages of trade; of which, if it were needed, a further confirmation might be found in the fact that, according to the old form of declaring on bills of exchange, the declaration f merchants. always was founded on the custom « Usage, adopted by the Courts, having been thus the origin of the whole of the so-called law merchant as to negotiable securi- ties, what is there to prevent our acting upon the principle acted upon by our predecessors, and followed in the precedents they have left to us? Why is it to be said that a new usage which has sprung up under altered circumstances, is to be less admissible than the usages of past time? Why is the door to be now shut to the admission and adoption of usage in a matter altogether of cognate character, as though the law had been finally stereotyped and settled by some positive and peremptory enactment? It is true that this scrip purports, on the face of it, to be a security not for money, but for the delivery of a bond; nevertheless we think that, substantially and in effect, it is a security for money, which, till the bond shall be delivered, stands in the place of that document, which, when delivered, will be beyond doubt the repre- sentative of the sum it is intended to secure. Suppose the possi- ble case that the borrowing government, after receiving one or two instalments, were to determine to proceed no further with its loan, and to pay back to the lenders the amount they had already advanced; the scrip with its receipts would be the security to the holders for the amount. The usage of the money market has solved the question whether serip should be considered security for, and the representative of, money, by treating it as such. The universality of a usage voluntarily adopted between buyers and sellers is conclusive proof of its being in accordance with public convenience; and there can be no doubt that by holding thisMERCHANT THE LAW species of security to be incapable of being transferred by delivery, and as requiring some more cumbrous method ot assignm«¢ nt, we should materially hamper the transactions of the money market with respect to it, and cause great public inconvenience. No doubt there is an evil arising from the facility of transfer by de- live ry, namely, that it occasionally olives rise to the theft or mis appropriation of the security, to the loss of the true owner. But this is an evil common to the whole body of negotiable securities. It is one which may be in a great degree prevented by prudence and care. It is one which is counterbalanced by the general con- r the usage would venience arising from facility of transfer, « never have become general to make scrip available to bearer, and to treat it as transferable by delivery. It is obvious that no injustice is done to one who has been fraudulently dispossessed of scrip through his own misplaced confidence, in holding that the property in it has passed to a bona fide holder for value, Sec- ing that he himself must have known that it purported on the face of it to be available to bear¢ r, and must be presumed to have been aware of the usage prevalent with respect to it in the market in which he purchased it. Lastly, it is to be observed that the tend ney of the Courts, except only in the time of Lord Holt, has been to give effect to mercantile usage in respect to securities for money, and that where legal difficulties have arisen, the legislature has been prompt to give the necessary remedy, as in the case of promissory notes and of the East India bonds. PRESIDENT AND Directors oF MANHATTAN Company y. Moraan, Court or Apprats or New York, 1926 (242 N. Y. 38, 4A8—50 ). Cardozo, J.: The Negotiable Instruments Law of New York is much broader than its English model. The English act is expressly limited to bills of exchange, checks and promissory notes. It does not cover bonds or other classes of securities (Chalmers, Bills of Exchange, p. 362). The argument has been made that bonds are excluded from our statute also. The pro- visions of section 332, directed as they are to bonds, municipal and corporate, leave no support for that position. The statute of New York does not confine itself, moreover, to an enumeration nl enee es Sd sehen ae he Z34- HISTORY OF THE COMMON LAW of certain qualities which, if found, will make instruments nego- tiable. It enumerates others which will make them non-negotiable. By section 20, ‘‘an instrument to be negotiable must conform to the following requirements.” Of the five requirements that follow, we quote the second and the third. It “must contain an unconditional promise or order to pay a sum certain 1n mon- ey.” It “must be payable on demand, or at a fixed or determinable 33 future time.” By section 23, ‘‘an instrument payable upon a con- tingency is not negotiable, and the happening of the event does not cure the defect,” and by section 24 there is a like declaration as to the non-negotiable character of any “instrument which con- tains an order or promise to do any act in addition to the pay- ment of money,” with enumerated exceptions not important for the ease at hand. These are the tests to which the instrument in suit must be sub- jected. It is promissory in all its features, yet its promises are of a two-fold order. There is a promise for the payment of money, subject to specified conditions, and welded into this there 1S another promise, again subject to conditions, for the delivery of bonds. So far as the instrument is one for the payment of moncy, it is open to the objection that it is payable not absolutely nor at a fixed or determinable time, but subject to a contingency. The holder is to receive interest on presentation of the annexed warrant, subject, however, to the condition that moneys for such payment have been supplied by the government of Belgium. So far as the instrument is one for the delivery of bonds, it is open to the same objection, and to the additional one that it is a promise to make payment not “in money,” but in something else (SS8 20, 24; Hosstatter v. Wilson, 36 Barb. 307: Brown v. Richardson, 20 N. Y. 472: Hodges v. Shuler, 22 N. Y. 114: Dinsmore v. Duncan, 57 N. Y. 573, 580). The statute says that instruments are “not negotiable” when they embody such provi- sions. The law merchant cannot prevail against prohibitions so specit- 1c. In holding otherwise, we should do more than supplement the statute. We should disregard and contradict it. The plain- tift’s case is not helped by section 7 to the effect that “in any case not provided for in this chapter the rules of the law mer- chant shall govern.” The difficulty is that the case ts provided for. Unforeseen situations may reveal gaps in the statutory rules.THE MERCHANT LAW In such circumstane s the law merchant is competent to fil] them. It is without power to annul what the statute has ordained.} 6. Ture Rerorm Movement The reform movement, which completed by means of legislation the modernizing of the common law, begun by the court of chancery and carried on by the law merchant, may be said roughly to cover the period from 1776 to 1876. We may begin with 1776 for two reasons: (1) Be cause in that year Jeremy Bentham published his first work, the Frag- ment on Government; (2) because in the same year the American Declara f common-law legislatures tion of Independence set rree a new group ¢ to take a hand in the renovation of our law. The period may be said to close with the taking effect of the English Judicature Act of 1873.2 Although legislation is still active in all common-law jurisdictions, it is no longer directed to sweeping and far-reaching changes. The tendency now is to codify and restate rather than to alter.’ Buiackstonr, Commentaries, II], 267. But this intricacy of our legal process will be found, when at- tentively considered. to be one of those troublesome, but not dan- gerous evils, whieh have their root in the frame of our constitu- tion, and which therefore can never be cured, without hazarding everything that is dear to us. In absolute governments when new arrangement of property and a gradual change of manners have destroyed the original ideas on which the laws were devised and established, the prince by his edict may promulge a new code, more suited to the present emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too herculean a task to begin work of legislation afresh, and ex tract a new system from the discordant opinions of more than five hundred counsellors. A single legislator or an enterprising sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise and perhaps an uniform plan of jus- tice: and evil betide that presumptuous subject who questions its wisdom or utility. But who, that is acquainted with the 1As to the Uniform Negotiable Instruments Law, see Brannan, The Nego- tiable Instruments Law, 4 ed. 1926. 2 Dicey holds that a new period began in England about 1865, when col- lectivism came to be the leading principle in English legislation. 3 This statement, true enough at the date of the first edition, must now be qualified by reference to Workmen’s Compensation Acts and the recent English statute as to Real Property (Law of Property Act, 1922). inet armani ee et on ri CET er eee eer a Na236 IWISTORY OF THE COMMON LAW difficulty of new modeling any branch of our statute laws (though relating but to roads or to parish settlements) will conceive it ever feasible to alter any fundamental point of the common law with all its appendages and consequents and set up another rule in its stead? When, therefore, by the gradual influence of foreign trade and domestic tranquillity, the spirit of our military tenures began to decay and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feudal actions (guarded with their several outworks of essoins, vouchers, aid prayers and a hundred other formidable entrenchments) were ill suited to that more simple and com- mercial mode of property which succeeded the former and re quired a more speedy decision of right to facilitate exchange and alienation. \ Yet they wisely avoided soliciting any great legis- lative revolution in the old established forms which might have been productive of consequences more numerous and extensive than the most penetrating genius could foresee; but left them as they were to languish in obseurity and oblivion, and endeavored by a series of minute contrivances to accommodate such personal actions as were then in use, to all the most useful purposes of remedial justice: and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprising judges who have sate in our courts of equity to shew them their error by supplying the omissions of the courts of law. And since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their fictions and circuities; but when once we have discovered the proper clew, that labyrinth is easily pervaded. Our system of remedial law resembles an old Gothic castle, erected in the days of chivalry but fitted up for a modern imhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their ap- proaches may be winding and difficult.ho “I THE EFORM MOVEMENT I > \ Biacksronr, Commentartss. LV. 442. We have seen in the course of our inquiries in this and the 1 rules of the former volumes that the fundamental maxims an law which regard the rights of persons and the rights of things, the private Inyuri s that may be offered to both, and the crimes which affect the public, have been and are every day improving, and are now fraught with the accumulated wisdom of ages: that the forms of administering justice came to perfection under Edward I; and have not been much varied nor always for the better since; that our religious liberties were fully established at the Reformation: but that the recovery of our civil and political liberties was a work of longer time; they not being thoroughly and completely regained till after the restoration of Kine Charles. nor fully and explicitly acknowledged and defined till the area of the happy revolution. Of a constitution so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise which is justly and severely its due:—the thorough and attentive contemplation of it will furnish its best panegyrie. It hath been the endeavour of these Commentaries, however the execution may have succeeded, to examine its solid foundations. to mark out its extensive plan; to explain the use and distribution of its parts, and from the harmonious concurrence of those parts, to demonstrate the elegant proportion of the whole. Pottock, Tur Law or Encrann, I-L Vicrorrar, 3 Law Quar. Rev. 643. Blackstone caught and expressed the spirit of his time with consummate skill, but he caught it only just in time. Hardly was his ink dry when Bentham sounded a blast that rudely dis- turbed the supposed finality of the common law, and (what was even a greater matter) the independence of the United States, insured the free and ample development of English legal ideas in directions and for purposes as yet unknown.’ With the nineteenth century we are started in a wide and ever expanding field of new adventures. The commencement of our sovereign lady’s regnal year coin- cides approximately with the opening of a new period of develop- ment in the law of England. That period is not yet closed, but enough has been done to make it certain that for the future his- seal tanner BOOT ence aa eee! 938 HISTORY OF THE COMMON LAW CO torian of our law, on what shore of what ocean soever he is destined to arise, Her Majesty’s reign will not be less eventful or interesting than that of Edward I. or Elizabeth. ' Lorp Broveuam, Sprrcues, I], 288 (1838). The age of law reform and the age of Jeremy Bentham? are one and the same. No one before him ever seriously thought of ex- posing the defects in our English system of jurisprudence. He it was who first made the mighty step of trying the whole provisions Tilman mes of our jurisprudence by the test of expediency, fearlessly examin- ing how far each part was connected with the rest, and with a yet more undaunted courage inquiring how far even its most consistent and symmetrical arrangements were framed according to the principles which should pervade a code of laws, their adap- tation to the circumstances of society, to the wants of men, and to the promotion of human happiness. Dicry, Lecrurrs on THE RELatTIon BerwrEn Law anp Pus Lic Orrnion In Eneuanp, 133-146. My object in this lecture is, first, to sketch in the merest outline the ideas of Benthamism or individualism, in so far as when ap- plied by practical statesmen they have affected the erowth of Enelish law; next, to explain and describe the general acceptance of Benthamism as the dominant legislative opinion of a particular era; and, lastly, to illustrate by examples the general trend of Benthamite or individualistic legislation. (A) Benthamite Ideas as to the Reform of the Law. of o Bentham, considered exclusively as a reformer of the law England, achieved two ends. He determined, in the first place, the principles on which reform should be based. He determined, in the second place, the method, 1. e., the mode of legislation, by which in England, reform should be carried out. As to the Principles of Law Reform.—The ideas which underlie the Benthamite or individualistic scheme of reform may con- 10n Bentham, see Atkinson, Jeremy Bentham, 1905; Phillipson, Three Criminal-Law Reformers, pt. II (Bentham), 1923; Stephen, The English Utilitarians, vol. I, 1900.THE REFORM MOVEMENT veniently be summarised under three leading principles and two eorollaric S. IE Le gislation ws a wocience. Enelish law, as it existed atl the end of the eighteenth century, had in truth developed almost haphazard, as the result Ort Cus toms or modes of thought which had pre vailed at difterent perio. S, Lhe laws actually in existence had certainly not | en enacte dl with a view to any one guiding principl hey had, indeed, for the most part never bet n “enacted” (in the strict sense of that word ) at all. They were, as they still indeed to a Oreat Cxienu are. the result of judicial legislation built up in the course of deciding partic ular Cases. Ky olish law had in fact PTOWN, rather than been made, and the language used by Paley with regard to the con- stitution might, with the chaner ot one word. be applied to the whole law of England. ‘The [law] of England, like that of most countries in Europe, hath grown out of occasion and emergency; from the fluctuating policy of different ages; from the contentions, successes, inter ests, and opportunities of different orders and parties of men in the community. It resembles one of those old mansions, which, instead of being built all at onee, atter a reoular plan, and ae eording tO the rules ot architecture at pre sent established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs suited to the taste, fortune, or conveniency of its successive proprietors. In such a building we look in vain for the elegance and proportion, for the just ord r and correspondence ot parts, which we expect in a modern edifice; and which external sym metry, after all, contributes much more perhaps to the amusement ation of the inhabitant of the beholder than the accommo But Bentham saw clearly several facts which Paley failed to recognize. The revered mansion was not only antiquated, but in many respects so unsuited to the requirements of the times, that it was to its numerous inhabitants the cause not only of dis comfort but even of misery. In order to amend the fabric of the law we must, he insisted, lay down a plan erounded on fixed prin- ciples; in many instances not amendment but reconstruction was a necessity; and even gradual improvements, if they were to at- tain their object, must be made in accordance with fixed rules of240 HISTORY OF THE COMMON LAW | art. Legislation, in short, he proclaimed, is a science based on | the characteristics of human nature, and the art of lawmaking, if it is to be successful, must be the application of legislative prin- ciples. Of these ideas Bentham was not the discoverer but iy the teacher; he may be described as the prophet who forced the Bi faith in scientific legislation upon the attention of a generation of Englishmen by whom its truth or importance was denied or forgotten. Il. The right aim of legislation is the carrying out of the prinei- ple of utility, or, in other words, the proper end of every law is the promotion of the greatest happiness of the great- Se a eee est number. cae te This principle, obtained as we have seen from Priestley, is the formula with which popular memory has most closely connected the name of Bentham. Ill. LHvery person is in the main and as a general rule the best judge of his own happiness. Hence, legislation should arm at the removal of all those restrictions on the free action of an individual which are not necessary for securing the lke freedom on the part of his neighbours. This dogma of latssez faire is not, from a logical point of view, an essential article of the utilitarian creed. A benevolent despot of high intelligence, while admitting that the proper end of scien- tific legislation is to promote the greatest happiness of the greatest number, might contend that the mass of his people, owing to igno- rance and prejudice, did not understand their own interests, and might go on to maintain and act on the principle, that as lis subjects were neither the best judges of the conditions which consti- tuted happiness, nor understood the means by which these condi- tions were to be attained, it was his duty to enforce upon them laws which, though they might diminish individual liberty, were likely nevertheless to ensure the well-being of his people. This position is not in itself illogical: it was held by the benevolent despots of the eighteenth century, and would have commended itself to so acute a thinker as Voltaire. for we may assume with confidence that he would not have condemned a ruler who by severe legislation overthrew the reign of superstition or intoler-THE REFORM MOVEMENT QA ance. But, though laissez faire is not an essential part of utili- tarianism, it was practically the most vital part of Bentham’s legislative doctrine, and in Eneland gave to thi movement for the r¢ form of the law both its power and its character. At the time when Bentham became the preache Of legislative utili- tarianism the English people were proud of their freedom, and it was the fashion to assert, that under the Enelish constitu tion no restraint was placed on individual libs rty which was not requisite for the maintenance of public order. Bentham saw through this cant. and perceived the undeniable truth, that, under a system of ancient customs modified by haphazard legisla- tion, unnumbered restraints were placed on the action of individ- uals, and restraints which were in no sense necessary for the safety and good order of the community at large, and he inferred at once that these restraints were evils. Ditton, Laws anp JURISPRUDENCE oF ENGLAND AND AMERICa, 339-342. Passing from these general considerations, I proceed to notice specifically two other subjects. One is Bentham’s reforms in the Law of Evidence. Here the direct fruits of Bentham’s labors are plainly to be seen. In some respects his “Judicial Evidence,” before mentioned, is the most important of all his censorial writ- ings on English law. In this work he exposed the absurdity and perniciousness of many of the established technical rules of evi- dence. “In certain cases,’ he says, “jurisprudence may be de- fined, the art of being methodically ignorant of what everybody knows.” Among the rules combated were those relating to the competency of witnesses and the exclusion of evidence on various grounds, including that of pecuniary interest. He insisted that these rules frequently caused the miscarriage of justice, and that in the interest of justice they ought to be swept away. His rea- soning fairly embraces the doctrine that parties ought to be al- lowed, and even required, to testify. This work appeared in Paris in 1802, and in England in 1825 and 1827; but it produced no immediate effect on the professional mind. It was generally re- garded as the speculations of a visionary. As I write I have before me Starkie’s Hvidence, the third edition of which appeared in 1842, and the wisdom of the exclusionary rules of evidence are not so much as criticised or questioned. 16 ener re ne ee ena en rT 249 HISTORY OF THE COMMON LAW ] But Bentham had set a few men thinking. He had scattered the seeds of truth. Though they fell on stony ground they did not all perish. But verily, reform is a plant of slow growth in the sterile gardens of the practising and practical lawyer. Bent- ham lived till 1832, and these exclusionary rules still held sway. But in 1843, by Lord Denman’s Act, interest in actions at com- mon law ceased, as a rule, to disqualify; and in 1846 and 1851, by Lord Brougham’s Acts, parties in civil actions were as a rule made competent and compellable to testify. I believe I speak the universal judgment of the profession when I say that changes more beneficial in the administration of justice have rarely taken place in our law, and that it is a matter of profound amazement, as we look back upon it, that these exclusionary rules ever had a place therein, and especially that they were able to retain it until within the last fifty years. Let us be just. The credit of originating this great improve- ment is due not to Denman and Brougham, but it essentially be- longs to Bentham although he was in his grave before it was actually effected. Mr. Justice Stephen forcibly remarks of Ben- tham’s assault on the system of judicial evidence that “it was like the bursting of a shell in.the powder magazine of a fortress, the fragments of the shell being lost in the ruin which it has wrought.” The moral is obvious. The philosophie student of our laws may often have a keener and juster insight into their vices and imperfections than the practising lawyer, whose life and studies are exclusively confined to the ascertainment and application of the law as it is, and who rarely vexes himself with the question of what it ought to be, or makes any serious eftort to reform it. But let me not be misunderstood. While the phil- osophic student is able to point out defects in the laws, yet the history of the law shows that only practical lawyers are capable of satisfactorily executing the work of reform. Bentham’s failure in directly realizing greater practical results grew out of his mistaken notion that the work of actual amendment could be ac- complished without experts,—that is, without the aid of the bar and without its active support. Extracts from A Crntury or Law Rerorm (1901). [hese extracts are from the Introductory Lecture of Dr. Odgers. | We find since 1800 a marked improvement both in the substancebo THE REFORM MOVEMENT of our criminal law and in the whole tone of its administration. In the year 1800 there were more than 200 crimes punishable with death! Of these more than two thirds had been made capital during the eighteenth century. Sir Samuel Romilly asserted that there was no other country in the world “where so many and so ] large a variety of actions were punishable by loss of life.” Nearly all felonies were cCapltal. Gi a man Talsely pretended to be a Greenwich pensioner, he was hanged. If he injured a county bridge, or cut down a youn tree, he was hanged. If he forge cl a bank note, he was hange l. [If he stole property valued at five shillings; if he stole anything above the value of one shilling from the person ,; it he stol anything at < ll, whatever its v: lue, from a bleaching ground; he was hanged. If a convict returned prema- turely from transportation; or if a soldier or sailor wandered about the country beeoing without a pass 5 he was hanged. And these barbarous laws were relent ssly earri a into execution. A boy only ten years old was sentenced to death in 1816; whether he was actually executed I can not say. Thanks to Sir Samuel Romilly, and later to Sir James Mackin tosh, the number of capital offences was gradually reduced; and now we have but four crimes punishable with death, two of which very rarely oceur. In 1800, too, our prisons were sinks of iniquity and disease: the cwaolers feared to enter a cell lest they should catch gaol fever; and a sentence of imprisonment was often th and a sentence to death. Now oreat care is taken of the hea morals of our convicts in prison. And a criminal trial now is conducted in a very different fashion from a trial in 1800. The prisoner now is treated with the utmost fairness and considera- tion. In Common Law, and in the procedure of the Courts which en- force it, many great changes have taken place during the century. Of course a contract is much the same now as it was in 1800. But in 1800 no contracts, except negotiable instruments, were assign- able. Only the original parties to a contract could sue on it. Now the benefit of nearly every contract is assignable. On the other hand, wagering contracts in 1800 could be enforced in the courts of law; and all sorts of extraordinary actions were the results. If a. bet was made, not upon any illegal sport, or any game or race, the result was a leeal debt. for which an action would he;244 HISTORY OF THE COMMON LAW and such actions were solemnly tried in open court. This was put to an end. by an Act passed in 1845. With a few exceptions, the principles of law applicable to torts remain much as they were in 1800. The most marked change was made by Lord Campbell’s Fatal Accidents Act, 1846. As the law stood in 1800, if a passenger was upset in a stage-coach and his leg broken, he could sue the proprietor and recover damages for the pain which he had suffered, the injury done him, and .the medical and other expenses which had been incurred. But if he was killed outright by the accident, his family and his executors had no redress whatever. They could not even recover his funeral expenses! His right of action was said to be personal and to have died with him. So it was a bad thing pecuniarily for the pro- prietor of a stage-coach, if his passengers recovered from their injuries; it was to his advantage, if there was to be an accident at all, that they should all break their necks. This was put a stop to by Lord Campbell’s Act in 1846. The principles of equity have not materially changed since 1800. What was a breach of trust then is a breach of trust now, though great and much-needed relief has been afforded to trustees by enabling them to plead the Statute of Limitations in many cases where their default was not fraudulent. The rules laid down by Lord Eldon in Ellison y. Ellison are still applied in cases of Voluntary Trusts. The law as to constructive notice declared by Lord Hardwicke in Le Neve v. Le Neve and other cases en- dured till 1882, when it was modified by the Conveyancing Act. The old doctrines of the Courts of Equity as to conversion and election, ademption of legacies, priority of morteages, and mar- shalling assets, remain substantially in force to this day; though the rules relating to the administration of the estates of deceased persons have been altered by many statutes. In the law of real property, on the other hand, chanecs of enormous importance have been made during the century. In conveyancing, too, the changes have been equally startling. In 1800 no man could convey to another freehold land in posses- sion by a simple deed. Such land did not lie in grant. EitherTHE MOVEMENT REFORM the purchaser and the vendor had to visit the spot and go through the elaborate ceremony of a feoffment with livery of seisin; or, what was more usual, the parties had recourse to the device o creating an unnecessary tenancy by means of a Lease and then supplementing it by a subsequent Release—two deeds and double the cost. An end was put to this in 1845. Fines and recoveries were abolished 1 1833. Since then title-deeds themselves have been so shortened and simplified by the Conveyancing Acts that they no longer desi rve Lord Westbury’s severe censure. You remember that he spoke of title deeds, as being “difficult to read, impossible to understand, and disgusting to touch.” In 1800 there was no such thing as an ordinary limited liabil- ity company. There were a few trading companies each incor- porated by its own private Act of Parliament. But apart from these, every trading concern in which more than one man was interested was just a common law partnership, and each partner was personally liable for the whole of the debts of the firm. Now any one can take as many shares as he likes in a limited lability company, and as soon as he has paid for his shares in full he is free from all further liability to the creditors of the company. Whether the change was a good one or a bad one, it is hard to say. It has no doubt greatly encouraged and facilitated com- mercial enterprise; it has carried British capital into every corner of the inhabitated globe. There was no Bankruptey Court in 1800. sankruptey was 1 the earliest Bankruptey Acts originally regarded as a crime; 11 ytfender.” But before the bankrupt is always alluded to as “the 1800 bankruptey had come to be regarded as the proper remedy for traders in embarrassed circumstances. But this relief was limited to “traders :”? no one else could avail himself of the Bank- ruptey Laws. 3 and the rule applies, though some of the statutes may have expired, or are not reterred to in the oth TE Acts: The object ot the rule is to ascertain and carry into effect the intention; and it is to be in- ferred that a code of statutes relating to one subject was governed by one spirit and policy, and Was intended to be consistent and harmonious in its several parts and provisions. Upon the same principle, whenever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied. Quando lex aliquid concedit. concedere videtur et id, per quod deventtur ad illud. Statutes are likewise to be construed in reference to the prin- ciples of, the common law; for it is not to be presumed that the legislature intended to make ary innovation upon the common law, 1 Pitze. 195. 21 Burr. 445. 3 Doug. 27ee ey - eR enn cs 266 SOURCES AND FORMS OF LAW further than the case absolutely required. This has been the lan- . of the courts in every age; and when we consider the con- OuUag stant vehement and exalted eulogy which the ancient sages be- stowed upon the common law as the pert ection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction. It was observe d by the judge Sam the case ot Stowell Vie Zouc he, that it was good for the expositors of a statute to approach as near as they could to the reason of the common law; and the resolution of the barons of the Exchequer, in Heydon’s Case,” was to this effect. For the sure and true interpretation of all statutes, whether penal or beneficial, four things are to be considered: What was the common law before the act: what was the mischief against which the common law did not provide; what remedy the Parliament had provided to cure the detect; and the true reason of the remedy. It was held to be the duty of the judges to make such a construc- tion as should repress the mischief and advance the remedy. In the construction of statutes, the sense which the contempo- rary members of the profession had put upon them is deemed of some importance, according to the maxim that contemporanem ex- positio est fortissima in lege. Statutes that are remedial, and not penal, are to receive an equitable interpretation, by which the letter of the act is sometimes restrained, and sometimes enlarged, so as more effectually to meet the beneficial end in view, and pre- vent a failure of the remedy. They are construed liberally, and ultra but not contra the strict letter. This may be illustrated in the ease of the registry acts, for giving priority to deeds and mort- cages, according to the dates of the registry. If a person claiming under a registered deed or mortgage had notice of the unregistered prior deed when he took his deed, and procured the registry of it in order to defeat the prior deed, he shall not prevail with his prior registry, because that would be to counteract the intent and policy of the statutes, which were made to prevent and not to up- hold frauds. Statutes are sometimes merely directory, and, in that case. a breach of the direction works no forfeiture or invalid- ity of the thing done; but it is otherwise if the statute be 1m- perative. If an act be penal and temporary by the terms or nature of it, 1 Plowd. 365. 1 BY (Cfo, {fcLEGISLATION the party offending must act expires or is repealed. Though the offence be committed b fore the expiration of the act, the party cannot be punished afte it has expired, unless a particul: the purpose. If a statute be repealed, and afterwards the repeal ine act be repealed, this re lves the original act ; and if : statute be t mporary, and the s atute be r¢ pe ali d, and atterwards the re- pealing act be r pe led, this revives the orig ly al aet: and if a statute be temporary, nd limited to a olven number « f years, ancl expires by its own limitation, a statute which had been r pealed and supplied by it is ipso facto revived. If, before the expiration of the time, a temporary statute be continued by another act, it was formerly a question under which statute acts and proceedings were to be considered as done. In the Case of the ( llege « Phy- set ae Sk : igre sicuans it was declared, that if a statute be limited to seve1 years, and afterwards by another statute be made perpetual, proceed ines ought to be ret rred to the last statute, as be no tn Ol in force. But this decision was erroneous, and contrary to what had been said by Popham, Ch. Jes 0m Dingl yi v. MM i LG) allies S civil and criminal, are to be charged under the authority of the first act. Thus, in the ease of Rea v. Morgan,® on an indictment for perjury, in an affidavit to hold to bail, it was laid to have been taken by virtue of the statute of 12 Geo. I., whic law for five years, and which was afterwards, and before the ex- piration of it, continued by the act of 5 Geo. II., with some altera tions. Lord Chief Justice Hardwicke said, that when an act was Ce ntinued by a subseque nt AGU. eve rybody was stopped tO Say the first act was not in force; and as the act in question was not al tered in re spect to bail, the ottence Was props rly laid i have been done against the first act. In Shipman vy. Henbest,* the King’s Bench held, that if a statute be permitted even to expire, and be afterwards revived by another statute, the law derives its force from the first statute, which is to be eonsi 1¢ in yperatle by means of revival. If, however, a temporary act be revived after it has expired, the intermediate time is lost, without a special pro vision r¢ aching to the intermediate time. 1Littleton’s Rep. 212. 2Cro. Eliz. 750. » Strange, 1066. 44 Te Re 1a ye prosecuted and punished before the r provision be mace by law for Cie et enn ereST Re ee re eae ee TO 268 SOURCES AND FORMS OF LAW If a statute inflicts a penalty for doing an act, the penalty 1m- plies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute. Lord Holt, in Bartlett v. Viner,” applied this rule to the case of a statute inflicting a penalty for making a particular contract, such as a simoniacal or usurious con- tract: and he held that the contract was void under the statute, though there was a penalty imposed for making it. The principle ‘s now settled, that the statutory prohibition is equally efficacious, and the illegality of a breach of the statute the same whether a thing be prohibited absolutely or only under a penalty. The New York Revised Statutes make the doing an act contrary to a statute prohibition a misdemeanor, though no penalty be imposed. Whether any other punishment can be inflicted than the penalty eiven by the statute has been made a serious question. The Court of K. B.. in Rex v. Robinson, laid down this distinction, that where a statute created a new offence, by making unlawful what was lawful before, and prescribed a particular sanction, it must be other: but where the offence was punishable pursued, and non at common law, and the statute prescribed a particular remedy, without any negative words, express or implied, the sanction was cumulative, and did not take away the common-law punishment, and either remedy might be pursued. The same distinction had been declared long before; and the proper inquiry in such cases ; is, was the doing of the thing for which the penalty is inflicted lawful or unlawful before the passing of the statute? If it was no offence before, the party offending is liable to the penalty, and to nothing else. The distinction between statutory offences, which are mala prohibita only, or mala in se, is now exploded, and a breach of the statute law, in either case, is equally unlawful and equally a breach of duty; and no agreement founded on the con- templation of either class of offences will be enforced at law or in equity. There are a number of other rules of minor importance, relative to the construction of statutes, and it will be sufficient to observe, generally, that the great object of the maxims of interpretation 1s to discover the true intention of the law; and whenever that in- tention can be indubitably ascertained, and it be not a violation of constitutional right, the courts are bound to obey it, whatever 1Carth. 251, Skinner, 322 22 Bunn io:LEGISLATION 269 may be their opinion of its wisdom or policy. But it would be quite \ islonary to expect, in any code of Statute law. such preelision of thought and perspicuity of language as to preclude all uncer- tainty as to the meaning, and « xempt the community from the evils of vexatious doubts and litigious interpretations. Lord Coke eom plain d, that in his clay oreat questions had oftentimes arisen up ] on acts of Parliament, overladen with provisos and additions, and many times on a sudden penned or corrected, by men of none, or WASP ENY little judem« nt in law.” When Statutes Take Effect: (a) At common law. If no date was fixed in the statute. t took effect by relation from the first day of the session at which it was passed. (b) In England. By a statute of George III., statutes take effect from the date when they receive the royal assent, unless a different date is fixed. (c) Federal statutes. These take effect from the date of a yproval by the president, unless a different date is fixed. (d) State statutes. This matter is governed by constitutional or statu- tory provisions in the several states, and there is no uniform rule. Most of the states provide a certain time after passage and approval at which tatutes shall take effect. JupictAL Derctsions? B ‘ "mV — Y *¢ "oO ILACKSTONE, COMMENTARIES, I, 69— For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the seale ot justice even and st ady, and not liable to waiver with every new judge’s opinion; as also because the law in that case be ing solemnly declared and determined, what before was uncertain, and. perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according’ to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evi- dently contrary to reason; much more if it be clearly contrary to the divine law. But even in such eases the subsequent judges do not pretend to make a new law, but to vindicate the old one from 1In this connection the student may read profitably Wambaugh, The Study of Cases. Reference may be made also to Black, Judicial Precedents.Se aa ees 10 SOURCES AND FORMS OF LAW —i misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sen- tence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously deter- mined. And hence it is that our lawyers are with justice so is in their encomiums on the reason of the common law ; that copious 1 thev tell us, that the law is the perfection of reason, that it always ‘ntends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law ean at h- this distance of time be always precisely assigned ; but it is su cient that there be nothing in the rule flatly contradictory to rea- son. and then the law will presume it to be well founded. And it hath been an ancient observation in the laws of England, that whenever a standing rule of law of which the reason perhaps could Vwi ‘e remembered or discerned, hath been wantonly broken in not upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation. The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust; tor though their reason be not obvious at first view yet we owe such a deference to former times as not to suppose that they acted wholly without con- sideration. To illustrate this doctrine by examples. It has been determined. time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but 1t shall rather escheat to the king or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions, and therefore can never be de- parted from by any modern judge without a breach of his oath and the law. For herein there is nothing repugnant to natural jus- tice: though the artificial reason of it, drawn from the feodal law, may not be quite obvious to everybody. And therefore, though a modern judge, on account of a supposed hardship upon the halt brother, might wish it had been otherwise settled, yet it is not im his power to alter it. But if any court were now to determine, that an elder brother of the half blood might enter upon and seize any lands that were purchased by his younger brother, no sub- sequent judges would scruple to declare that such prior determina: tion was unjust, was unreasonable, and therefore was not law. So that the law, and the opinion of the judge, are not always con-JUDICIAL DECISIONS O71 vertibl rms, or one and the same thine; since it sometimes may happ n that the ] 1dox may Mistake thi iaw. Up n the whole, how- ver, we may take it as a general rule, “that the decisions of courts ( f ist are the ide ice oO hat 1s coOmmMmo Vi Ll tone: Ss manner as, 1n t civil law. what the emperor had once determined was to serve for a guide tor thi tur We eclslons, there l oO Ourts art held in the highest re ra ind are not ol preserved as uthentiec records in the treasuries O the s I USS Ou alr nd {1 out to pul @ View 10 the numerous volumes reports which furnish the lawyer’s library [These reports are histories of the s¢ eases, with a short sum n ary O the pro O'S Ll are preserve | iT 9e in the re ord: the areuments on both sides d the isons the court gave fo its judgr { T < ( LO ] s [ oOtes DD rsonus pre sent at the detern a \nd thes iS es to, and also to ex- plain the reco ls which always, hn matters or consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from t] reign of King Edward the Second inclu sive; and from this time to that of Henry the Kighth, were taken by the } rothonotai es OL chief seri s of t court, al the expense ot thi cerown,} and publish dl annually, whence they are known under the denomination of the year books. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day; tor thoueh Kine James the First, at the instanee of Lord Bacon, app rinted two r porters with a hai d some stipend for this purpose, yet that wise institution was soon neglected, and trom the rei12? ot Hi nry the Kiehth to the present time this task has been executed DY many private and econtem porary hands; who sometimes through haste and inaccuracy, some times through mistake and Walt ot skill, have published Very crude and imperfect (perhaps contradictory ) accounts of one and the same determination. Some of the most valuable of the ancient reports are those published by Lord Chiet Justice Coke: a Man of infinite learning in his profession, though not a little infected ; ; . . . . Loss a with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However, his writings are so highly esteemed, that they are generally cited without the author’s name. 1 As to this tradition, see W infield, Che Chief Sources of Enelish Legal History, 158-17:272 SOURCES AND FORMS OF LAW Wuson v. Bumsteap, SUPREME Court oF NEBRASKA, 1881 (12 Nebr. iL We Maxwett, J.: In the application of the principles of the com- mon law, where the precedents are unanimous in the support of a proposition, there is no safety but in a strict adherence to such pr eedents. If the court will not follow established rules, rights are sacrificed, and lawyers and litigants are left in doubt and un- certainty, while there is no certainty im regard to what, upon a given state of facts, the decision of the court aul jee, Ihe the ecom- mon law rule is inadequate, the proper course is by legislation, and such was the course pursued in this case. As no action would he at common law, the remedy is entirely statutory, and the conditions, upon which the right to maintain the action rest, must be complied with. ArrorNEY GENERAL v. Lum, SuprEME Court oF WISCONSIN, 1853 (2 Wis. 507). Sautru, J.: This opinion of the Supreme Court, pronounced by the Chief Justice, would seem to be conclusive, as to the right here sought to be enforced. But it is contended that the opinions pro- nounced by the Supreme Court, are not of binding authority upon the Circuit Court, and it is intimated, that though inferior courts may treat such opinions never so contemptuously, yet the mere remitlitur certified and transmitted by our clerk, is the only au- thoritative direction to the court below. This is not the correct view of the law. It is not intended to be declared that all the reasoning, and instances of illustration, introduced in an opinion of this court, are to be adopted by in- ferior tribunals, from which cases, or matters may come here by appeal, writ of error, or otherwise; but it is insisted and declared that the opinion of the court upon the points in judgment, pre- sented and passed upon in cases brought here for adjudication, are the law of the land, until overruled or otherwise annulled, and that inferior courts and tribunals must yield obedience to the law thus declared. We should be unfaithful to the high trust committed to us, should we fail to discharge this solemn duty of enforcing the law in this respect, upon the faithful and complete execution of which, the most sacred and vital rights of the citizen must fre- quently depend; and every inferior officer, judicial or ministerial,JUDICIAL DECISIONS O18 must know and be informed that such acquiescence and obedience will be rigidly exacted, and resistance will be most effectually subdued. JOHNSON v. Fay, SUPREME Court or CattrorntA, 1856 (6 Cal. 2 ( Odd. ) The opinion of the Court was delivered by Mr. Justice Terry. Mr. Chief Justice Murray concurred. At common law all y agwers were recove rable. except such as were prohibited by law, were against public policy, or calculated to af- fect the interest. character or fi elines of third parties. This prin- ciple S TOO well esta lish d to require either argument or author ] ii ity. But it is contended by counsel that, inasmuch as the En: 1 lish judges have uniformly looked with disfavor on this class of cases, and have frequent ] l \ tale n oceasion to ¢ xpress the ir reocret that a diff rent rule har not been established. this Court should, as the question is for the first time presented in the State, without regard to precedent, declare all wagers illegal. on account of their mani- fest immoral tendency. Such a course would, we conceive, be a usurpation of functions properly belonging to another department of government. The common law having been adopted as the rule of decision in this State, it is our duty to entorce it, leaving all questions of its policy, ] n LOLI as applied to a particular class of contracts, for the considera ot the Legislature. The questions which are made in the argument of counsel, as to the general utility of the work, which was the subject of the wager, its effect upon the interest of third parties, as well as the tendency of the wager to advance or retard such work, are, we conceive, questions of fact, which cannot properly be decided by a Court on demurrer. The judgment of the Court below is reversed, and the cause remanded. McDowriu v. Oyrgr. SuPREME Court or PENNSYLVANIA, 1853 (PAL Teta, Si. Za). Brack, C. J.: . . . The judgment we are about to give might well be rested on the mere authority of the cases I have cited. When a point has been solemnly ruled by the tribunal of the last resort, after full argument and with the assent of all the 1See 274 SOURCES AND FORMS OF LAW judges, we have the highest evidence which can be produced in favor of the unwritten law. It is sometimes said that this adherence to precedent is slavish ; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that stare decisis is itself a principle of great magnitude and importance. [t is absolutely necessary to the formation and permanence of any system of jurisprudence. Without it we may fairly be said to have no law: for law is a fixed and established rule, not depending ‘n the slightest degree on the eaprice of those who may happen to administer it. I take it that the adjudications of this Court, when they are free trom absurdity, not mischievous in practice, and con- sistent with one another, are the law of the land. Jt is this law which we are bound to execute, and not any “higher law,’ manu- factured for each special occasion out of our own private feelings and opinions. If it be wrong, the government has a department whose duty it is to amend it, and the responsibility is not im any wise thrown upon the judiciary. The inferior tribunals follow our decisions, and the people conform to them because they take it for granted that what we have said once we will say again. There being no superior power to define the law for us as we define it for others, we ought to be a law unto ourselves. [1 we are not, we are without a standard altogether. The uncertainty of the law— an uncertainty inseparable from the nature of the sclence—Is a ereat evil at best and we would aggravate it terribly if we eould be D5 = Jlown about by every wind of doctrine, holding for true today vhat we repudiate as false tomorrow. Of course I am not saying that we must consecrate the mere blunders of those who went before us, and stumble every time we come to the place where they have stumbled. A palpable mistake, violating justice, reason, and law, must be corrected, no matter by whom it may have been made. There are cases in our books which bear such marks of haste and inattention, that they demand recon- sideration. There are some which must be disregarded, because they cannot be reconciled with others. There are old decisions of which the authority has become obsolete, by a total alteration in the circumstances of the country and the progress of opinion. Tempora mutantur. We change with the change of the times, as necessarily as we move with the motion of the earth. But in ordinary cases, to set up our mere notions above the principlesJ UDICIAI DECISIONS which the country has been acting upon as settled and established, is to make ourselves not the ministers and agents of the law, but the masters of the law and the tyrants of the people. Pratr v. Brown, SUPREME Court or Wisconsin, 1854 (3 Wis. 605 ). Smirn, J.: These and kindred propositions were present L te the Supreme Court under its former organization, in the case o tevens v. Marshall, 3 Chand. 222. and that ease is strongly urged upon us to induce us to concur therein; for it cannot be denied tha a majority of the court did hold in conformity with the proposi tions here insisted upon. As, however, these are questions affect ing not merely the routine of practice, nor rights determined by the lapse of time, or palpable lemislative enactment, we do not feel at liberty as we would wish, to throw ourselves back upon that decision, and thus evade further responsibility. It is true that when a principle of law, doubtful in its character, or uncertai in the subject-matter of its application, has been settled by a series of judicial decisions, and acquiesced in for a considerable time, and important rights and interests have become established under e 7 a eTOre Tney will such decisions. courts vill he sitate long attempt to rove : ] + ] overturn the result so long established. So when it is apparently indifferent, which ot two or more rulk S 1s adopted, whic h Ol shall have been adopted by judicial sanction, it will be adhered to, al- 1 } ] though it may not, at the moment, appear to be the prefe rable rule. But when a question arises involving important private or publi rights, extending through all coming time, has been passed upon y on a single oceasion, and which decision can in no just sense be said to have been acquiesced in, it is not only the right, but the duty of the court, when properly called upon, to re-examine the questions involved, and again subject them to judicial scrutiny. We are by no means unmindful of the salutary tendency of the rule stare decisis, but at the same time, we cannot be unmindful of the lessons furnished by our own consciousness, as well as by judicial history, of the lability to error, and the advantages of re view. We therefore enter upon the discussion of the questions involved in this case, not for the purpose of again reopening the subject- matter thereof to criticism or investigation, but for the purpose of discharging our full duty in the premises.6 SOURCES AND FORMS OF LAW to = Erring v. BANK oF THE UNITED QraTES, SUPREME COURT OF cup Unrrep Staves, 1826 (11 Wheat. 59). In the very elaborate arguments which have several cases have been cited which have No attempt will be made to analyze Manrsmarn. ©. Jc: been made at the bar, been attentively considered. to decide on their application to the ease before us, be- them or Consequently, the cause the judges are divided respecting it. principles of law which have been argued cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it. Judgment affirmed. WerAvER v. GARDNER, SUPREME COURT OF Kansas, 1875 (44 Kan. 347). Brewer, J.: This is not an open question in this court. As long ago as the case of George v. Hatton, 2 Kan. 333, it was decided that in an action like this no indorsement was required on the summons, it not being an action for the recovery of money only, but that if an amount was indorsed, it was not error to take judg- ment for that amount together with a decree for the sale of the land. Counsel contends that the decision in that case properly rests on other grounds, and that the comments of Chief Justice Crozier upon this question are mere obiter dicta. We do not so understand it. It was made one of the points announced in the syllabus, and the decision may as fairly be said to rest upon this as upon any other ground. We are aware of contrary rulings in Ohio: Williams v. Hamlin, 1 Handy, 95; 1 Nash’s Pl. & Prac., 4th ed., p. 67. And if this was an open question we might be dis- posed to give considerable weight to these authorities. But being merely a question of practice, and having been once settled in this state, we deem it better to adhere to that ruling. Doubtless it has been accepted by the profession during the last ten years as the correct interpretation of the statute, and many rights founded up- on it. Stare decisis is eminently appropriate in such cases. Avup v. Maeruper, SuPREME Court or Caxirornia, 1858 (10 Cal. 282.) Batpwin, J.: In overruling the case of Bryan v. Berry, we feel less reluctance, because we think that the principle there laid down is of injurious import. We think that principles of com-JUDICIAL DECISIONS mercial law, long established and maintained by a consistent course of decision in the other states, should not be disturbed: that the tendency of such disturbance, in any instance, is to confusion and uncertainty, and gives rise to perplexing litigation, and doubts and uneasiness in the public mind. Almost any general rule gov- erning commercial transactions, if it have been long and consist ently upheld as a part of the general system, is better than a rule superseding it, though the latter were much better as an original proposition. \Men knowing how the law has been generally re ceived and repeatedly adjudged, govern themselves and are ad vised by their counsel accordingly; but if Courts establish new rules whenever they are dissatisfied with the reasons upon which the old ones rest, the standards of commercial transactions would be destroyed, and commercial business regulated by a mere guess at what the opinion of judges for the time might be, and not by a knowledge of what the doctrines of recognized works of authority and the preced nts of the Courts ace: The commercial law has a system of its own, built up by centuries and the wisdom of learned jurists all over the world. It is not local, but applicable to all the states, with few modifications; and California, eminently com- mereial in its character, and in close commercial connection with the other states, finds her interests and satety in adhering to the well-settled general rules which prevail in those states as the laws of trade. We repeat, the stability and certainty of these rules are of more importance than any fancied benefits which might ac- crue from any innovation upon the system. Innovation begets in- novation, and we can not always see with clearness what is to be the conse juence of the new rule established. This case itself is a 20 dl illustration : for, if the doctrine be earried to its logical eon sequences, and whenever it appears on the face of a security for money, a party is a surety, he is entitled to be held as a guarantor, what becomes of undertakings, acceptances for accommodation, ete.¢ For, in the latter cases, why might not parol evidence be admitted to show that the party was only accommodation acceptor, in a contest between the original parties, as to show the same fact, as is frequently done, when suit is brought to recover money of the principal which the acceptor has paid on the acceptance ¢ And so, where the party does not sign as surety, but really is such ? The doctrine of stare decisis, seriously invoked by the respond- ent’s counsel, can have no effect; or, if any, only the effect to in278 SOURCES AND FORMS OF LAW duce us the more readily to return to a principle recognized, we believe, for many years everywhere else in the commercial world. The eonservative doctrine ot stare decisis was never designed tO protect such an innovation. 1 cause remanded. Judgment reversed, an Lanpsay v. Linpsay, Supreme Court or Inprana, 1874 (47 Ind. 283). Osnorn, J.: We are requested to grant a rehearing in this ease. that the cases of Leard v. Leard, 30 Ind. 171, Nebeker v. Rhoads, 30 Ind. 330, and DeMoss v. Newton, 31 Ind. 219, may be reconsidered and overruled. Langdon V. Applegate 7) Ind. 327, was decided at the November term. 1854. It was followed and adhered to by many decisions, and, without legislation, rights of property would have been dis- turbed by overruling it. The rule established by those cases was regarded as fixed and settled, and so continued until the decision in the ease of The Greencastle etc., Turnpike Co. v. The State, ex rel. Malot, 28 Ind. 382, at the November term, 1867, when the rule was changed, and Langdon v. Applegate, and all the cases follow- ing it were overruled. It is quite likely that the legislature had knowledge before that opinion was delivered, that Langdon v. Applegate would be overruled, and for the purpose of avertmg the consequences, which would otherwise result from such a ruling, passed the act of March 9th, 1867. The object of the legislature clearly appears on the face of the act. The constitutionality of that act was deliberately sustained in Leard y. Leard, 30 Iael, ab 7al. which was followed by Nebeker v. Rhoads, 30 Ind. 330, and De- Moss v. Newton, 31 Ind. 219. It was cited and recognized as au- thority in Pierce v. Pierce, 46 Ind. 86. If we doubted the correctness of the decisions cited, we should be unwilling to overrule them. They have become a rule of prop- erty in this state, and to overrule them would disturb titles to real estate, acquired by purchase on the faith of, and in reliance upon, the rule thus established. We should be unwilling to make a decision involving such consequences, except for very convincing reasons. Blackstone lays it down as an established rule, to abide by former precedents, when the same point comes again into con- troversy, unless flatly absurd. 1 Bl. Com. 70, 71. Public confidence in the decisions of courts rests in a great meas-ure in their adherence to deeid Commentaries, 1 Kent, 476, says: ‘The community have a right to regard it” court) ‘tas a just declaration or exposition of the law, and to reeu late their actions al d eontraets by it. [f judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought 2 to be disturbed, unless by a court of appeal or review, a1 by the same court, except for very cogent reasons, and upon a clear manifestation of err r: and if the practice vere otherwise it would be leaving us in a state of perplexing uncertainty as to the law.” To the same effect are Bellows v. Parsons, 13 N. H. 256: Taylor v. French, 19 Vt. 49: Boon v. Bowers, 30 Miss. 246: Emerson Atwater, 7 Mich. 12; Goodell v. Jackson, 20 Johns. 693, 722; Day v. Mfunson, 14 Ohio St. 488: Loeb v. Mathis, 37 Ind. 306, 2; Harrow v. Myers, 29 Ind. 469; Carver v. Louthain, 38 Ind. Ve 930, 5388; Tinder v. The Duck Pond Ditching Association, 38 Ind. 555; Stanford v. Stanford, 42 Ind. 485, 489: Grubbs v. Th Stat - 24 Ind. 29). and numerous othe rE Cases: In the ease last eited, it is said on page 296: “This principle ) has so often received the sanction of appellate courts, that it has become a maxim for their guidance, and it is especially important that it should not be forgotten here, where the judges hold for short terms, and where, unfortunately, the entire court may be changed at once.” We might not be willing to go to the extent of some of the au- thoritic S eited. We do mean to hold. howe ver, that when a court of appeals of the last resort has, by its decisions, established a rule of property under which rights have been acquired as in this case, an adherence to such decisions by the same court becomes a duty, except for the most convincing and overwhelming reasons. Maran v. Srmpson, SuprEME Court or New York, 1861 (20 How. Pr. 488). Barnarp, Justice: The question presented for consideration 1S, whether a term fee of ten dollars can be taxed for every term that a motion for a new trial of a case is on the special term eal- endar and not necessarily reached or postponed.250 SOURCES AND FORMS OF LAW In the case of the Mechanics’ Banking Association (10 How. 400) the general term of the superior court decided the question in the affirmative, and even went to the length of holding that a trial fee was taxable. In the ease of Jloore agt. Cockroft, 9 How. 479, the general also decided the ques- term of the supreme court (second district tion in the affirmative, but held that a trial fee could not be taxed. These two cases agree in holding that term fees are taxable. There are, in addition, numerous special term decisions holding the same doctrine. It is insisted on the part of the defendants’ eounsel, that the case of Jackett agt. Judd, (18 How. 388) has overruled all previous decisions on this question, including the above two gen- eral term decisions. ‘That case, it is true, is a decision directly adverse to the taxation of the term fees in question. It is, how- ever, a mistake.to suppose that the last decision on the point over- ruled all prior decisions. A special term decision cannot even overrule a prior special term decision, much less a general term decision. When there are several conflicting special term decisions, the point is left in doubt; but the moment a point is decided by a general term, the doubt is removed, until a subsequent conflicting decision of another general term brings it back again. As the judiciary is at present formed, all the judges are co-ordinate in power, and the decision of one single judge in one district in no way binds another in any of the other districts (excepting in adjudicating on the same case) so likewise the general terms are all co-ordinate and the decision of one general term, in one district, is not binding on another general term in any of the other districts, with the single exception above mentioned. The decision of a general term, however, is binding on all the single judges, and all special terms, until some other general term makes a conflicting decision, when the ques- tion is, in truth, left undecided by the superior tribunal. It also results that a decision of the general term of one of the judicial districts will be binding authority (although an opposite decision may be made by the general term in each of the other districts) in that district, until the court of appeals overrule it, or the same general term by explanation in some subsequent cause in effect overrules it. It therefore follows, that where there are conflicting decisions on a point by the general term in two districts, the law on that\L DECISIONS point will be one way in one of those two districts, and directly the opposite 1 the other: whilst in the rest ot the state, it WOUILC be left to the decision of th particular judge befor hom thi question might arise. Consequently, the question presented in this case havine been directly adjudicated upon, and decided in the affirmative by a gen- ] , } } ] . 1 . . eral term of the supreme court held in the second district, and no general term having made any conflicting decision, the decision « this case must follow the case of Moore agt. Cockroft (9 How. 179 The above remarks as to the effect of decisions, will, of course. be understood as referring to their obligatory force; all judges and courts will at all times pay du respect and attentively ex ae amine any decisions that may have been made by their brethren or ] other courts, and + t ceive to them such weight as they are justly en- ee : ee ve titled to. Motion denied with costs. To unde rstand this opinion, it must be remembered that at that time the “general term’ of the Supreme Court in each district was a reviewing court, having appellate jurisdiction over the orders and judgments of the “special term,” which was the tribunal of original jurisdiction. WELLs v. OrEcon R. & N. Co., Unitrep States Crrcurr Court. > District of Oregon, 1883 (15 Fed. Rep. 561 D acy, ee Substantially the same conclusion had been r¢ ached by several other judges in the United States cireuit courts in the same and similar cases reported in 2 Fed. Ri p. 469; 3 Fed. Rep. 093; Id. 175; 4 Fed. Rep. 481; 6 Fed. Rep. 426; 8 Fed. Rep. QQ The only cease eit dl from the clecisions ( f the f deral eourts To y the contrary of these is Chamblos v. Pa., etc., Ry. Co. 4 Brewst. 563, 1m whieh a preliminary injunction was refused by Judge McKennan in a similar case; and also the case of New Hngland Hap. Co. v. Maine, etc., Ry. Co. 57 Me. 194, and Serjeant v. Bos ton, ete. Ry. Co. 115 Mass. 416, in which the right of an express : eye,° 1 c ] ’ company to what are known as express facilities on the defendants roads was denied. But the very decided weight and number o these authorities recognize the existence of the express business and the right ot those eCngZace d in it to have the proper facilities th retor allowed them by the defendants, and to secure the same by injune- tion in case they are refused. Until this question is settled by the239 SOURCES AND FORMS OF LAW supreme court, these deliberate decisions of eo-ordinate tribunals, like the circuit courts, ought, except 1n an extreme case, to furnish a guide for the decision of this court. This is the rule that has been followed by justices of the supreme court on the cireuit (Washburn v. Gould, 3 Story, 133; Brooks v. Bicknell, 3 McLean, 950: American, etc., Co. v. Fiber, etc., Co.; 3 Fisher, 363) and in Goodyear, etc., Co. v. Milles, 7 O. G. 40, Judge Emmons examines the question at some length, and concludes that ‘if one system of co-ordinate courts more than another calls for the appl- cation of these general principles, it is that of the circuit courts of the United States. . . . Although divided in jurisdiction, geo- eraphically, they constitute a single system, and when one court has fully considered and deliberately decided a question, every suggestion of propriety and fit public action demand that it should be followed until modified by the appellate court.” In Edison Electric Light Co. vy. Bloomingdale, 65 Fed. Rep. 212 (1894), Lacombe J., says: It is, of course, the duty of the several cireuit courts in the second circuit, comity to the contrary notwithstanding, to follow the decisions of the court of appeals of that circuit rather than those of a cireuit court in some other cireuit. Burt v. Powis, SupremE Court or New York, 1858 (16 How. Pr 289). By the court—E. Darwin Smith, Justice. The questions aris- ing upon this appeal are precisely the same presented to the court in the ease of Walker agt. Crane (17 Barb. 119). In that ease the construction, force and validity of the act of March 16, 1852, entitled, “An act to facilitate the dissolution of manufacturing corporations in the county of Herkimer, and to secure the payment of their debts without preferences,” was elaborately discussed and fully considered. The able opinion of Judge Gridley in the case, appears to have been coneurred in by the four judges of the fifth district, all present at the general term. By chapter 64 of acts of the sessions of 1855, page 65, the provisions of the aforesaid act are applied to the Seneca County Woolen Mills, which brings this case neces- sarily within the decision in the case of Walker agt. Crane, and also within the ease of The Herkimer County Bank agt. Furman (17 Barb. 116). a a [Those decisions, both pronounced at the sameJUDICIAL DECISIONS rays) general term, are authoritative decisions of this court upon the questions presented, and binding as such upon the judges of this court and upon referees, and all other subordinate tribunals. until overruled or reversed. The report of the referee in this action being in distinct conflict with such decision, the judgment entered thereupon must, of course, be reversed. The referee had no richt to disregard the decision of the court upon the express point before him. If there was error in that decision, the court itself at any general term might reconsider and overrule the same. Otherwise, and until that had been done, it was the law of this court binding as authority in all places, until reversed by the court of appeals. The fact that the referee in this case supposed himself at liberty avowedly to render a judg ment in open conflict with a decision of the court at general term, and that learned counsel with the above cases before them, should have ealled upon the referee to do so, seems to imply the prevalence to some extent of a fundamental error in respect to this court, in the assumption that the law is, or may be different in the different districts of the state. Perhaps some conflict of decision may have given rise to such an impression, and induced counsel to suppose that it was admissible to experiment upon the possibility of obtain- ing a different decision in one district from the decision of another. But I do not think this court in any of its branches deserves the reproach of countenancing any such experiments. Upon questions ot law, the conflict of opinions between the decisions of the judges in the several districts of the state, is quite infrequent. PARKER v. Pomeroy, SuPREME Court oF Wisconsin, 1853 (2 Wis) 12h): By the Court, Crawford, J. The important question presented by the record in this case, and the only one upon which an error might be predicated, is whether a defendant in replevin, in whose favor a judgment for the value of the goods replevied, and damages for detention, with costs, has been rendered in the Cireuit Court, is entitled to a capias ad satisfaciendum against the plaintiff to entorce his judgm«e nt. We regret that this question is not open in the present case; and so far as this case is coneerned, we cannot diseuss it. At the December Term, 1851, of the Supreme Court, it was determinedee ‘ ear nO mm Se ee 284 SOURCES AND FORMS OF LAW that the pleas of justification interposed by the defendants were bad. because a ca. sa. could not issue on a judgment in favor of the defendant in replevin, as above stated. The case was re- manded. and after a trial in the Cireuit Court, it is now before us on writ of error. However we mieht differ with the conclusion of the Supreme Court, as contained in the opinion given, still it must be esteemed, for all the purposes of the present case, res adjudicata. (Vide The Washington Bridge Co. v. Stewart and others, 3 Howard, 413.) As we discover no other error in the case, we are, with reluc- tance, compelled to affirm the judgment of the Cireuit Court. In Caldwell v. Gale, 11 Mich. 77 (1862) the court says: The first proposition is sustained by adjudged cases both in England and in this country. It appears to have had its origin as a rule of law in Penruddock’s Case, 5 Coke, 100. It has antiquity on its side, and 1s, therefore, entitled to all the consideration and weight that time can give to an adjudication, as precedent for other courts to follow. We are not, however, aware that the question has ever before arisen in our courts, and we do not feel ourselves bound to follow, as precedents, adjudi- eations outside of our own State—save adjudications in the Federal Courts on questions arising under the Constitution and laws of the Federal Gov- ernment—any further than they appear to us to be warranted by the fundamental principles of the common law. Lesanon Bank v. Mancan, SuPREME Court oF PENNSYLVANIA, SOYA CDHa lala bene Lewis, C. J.: The decision of the Supreme Court of the United States in Miller v. Austin, 13 How. 218, is certainly entitled to very great respect, on account of the learning and ability of the judges who administer the law in that court. But this question does not arise upon the construction of the constitution or laws of the United States: .the case before that court was a certificate of deposit issued by a bank in Mississippi, and endorsed in Ohio. The action was brought in the latter state, not upon the certificate, but upon the endorsement. Every endorsement is treated as a new and substantive contract, and is governed by the law of the piace where the endorsement is made: Slocum v. Pomroy, 6 Cranch. 221; Story, Confl. Laws, 314. The Federal tribunal had, there- fore, no other duty to perform than to ascertain what was the law of Ohio: and its decision is nothing more than the expressionOl Concedineg this to be a correct exposition furnishes no reason whatever for usages of this state. ¢ J UDI¢ its opinion that, under the law of O + oO! clecision for the purpose onl micht have adopted our rule, and ] } 1 Cs, it micht happen that by the tin ves to the law of Ohio, that s ] uncertain in both states. But to show t ] 1 = ° , decisions, was cited in the ] l | 7 . : nat the eltatlon was ¢ [IAL t slivered the opinion of rhe DI [f each state +¢ LS ISIONS CONST () the endorser was liable. of the law of Ohio. it a change nN the settled laws and antly chane ine its rules conforming to those of its sister 17 L© we } had accommodated our he lal ve: infla need by the lke comity. | thus the law would by renderec| is remarkable that a decision of the Supreme Court of Ohio, in exact conformity with the Pennsy]l argument, and the learned judge Federal Court did not undertak rroneous, or that the decisio} had been overruled by the propel tribunal of Ohio. It is. therefore. by no means certain that the case of ‘laration of the law of Ohio. [ Mill It er V. Austin 1s even a correct IS very certain, however. that it is no authority on this question, in opposition to the decisions law to otf the Supreme Court of ] » } | be changed in order to conform Judgement aftirmed. SHELTON v. uy} virtue of an execution tested after the YA | yy On our consideration. we Hamiitton, SuprRi (23 Miss. 496). YERGER, J.: the Supreme Court of the ME CO That case the Supreme Court held that a sale of lands made in Alabama, by ennsylvani: The salmMe remark may be made in t O| relati 10n to the decisions ot other states on this question. When a principle of Pennsylvania has been settled by the Supreme Court of the state, it is not the laws of other States. R r or Misstsstppr, 1852 The ease of Erwin v. Dundas, 4 How. 58. decided United States, has been pressed went up from Alabama, and death of the defendant with- out revivor, was absolutely void, and not merely voidable. While entertain a proper respect for the opinions of the Supreme Court, and are willing to yield to them the deference which is due to so distinguished a tribunal, yet when its decisions come in con- flic t with those of this court, in relation to questions over which the jurisdiction of this court is ample and its decisions final, we feel bound to adhere to our own decisions. Any other rule would subjeet the opinions of this court to a degree of fluctuation and286 SOURCES AND FORMS OF LAW Retrospective legislation has al- } | change ereatly to be deplored. Whenever courts of ways been deemed unjust and oppressive. justice alter or change the rules of law they have once established, and on the faith of which contracts have been made or rights acquired, many of the most injurious effects of retrospective legis- lation will result from such action. Entertaining this opinion, ews we mnight have been inclined to take of the ques- whatever V1 tion presented in the charge of the circuit judge, if it had been yression, we shall adhere to the rule laid down Winston, before referred to. { one of the first im] by this court in the ease of Smith v. Siar’s Case, SUPREME JUDICIAL COURT OF MassacuuseEtts, 1851 (4 (Cirela, Diss). ‘i . was as to the constitutionality of an act of Con- \ eress of 1850. The act was substantially the same as an act ot f 1793 which had been held constitutional by the federal 1e questioz Congress 0 courts. Shaw. C. J.: Since the argument in court, this morning, J am reminded by one of the counsel for the petitioner, that the law in question ought to be regarded as unconstitutional, because it makes no provision for a trial by jury. We think that this cannot vary the result. The law of 1850 stands, in this respect, precisely on the same ground with that of 1793, and the same erounds of argu- ment which tend to show the unconstitutionality of one apply with equal force to the other; and the same answer must be made to them. The principle of adhering to judicial precedent, especial- ly that of the supreme court of the United States, in a case depend- ing upon the constitution and laws of the United States, and thus placed within their special and final jurisdiction, is absolutely necessary to the peace, union and harmonious action of the state and general governments. ‘The preservation of both, with their full and entire powers, each in its proper sphere, was regarded by the framers of the constitution, and has ever sinee been regard- ed, as essential to the peace, order and prosperity of all the United States. [f this were a new question, now for the first time presented, we should desire to pause and take time for consideration. But though this act, the construction of which is now drawn in ques- tion, is recent, and this point, in the form in which it is now stated, is new, yet the solution of the question depends upon reasons andJUDICIAL DECISIONS 287 judicial decisions, upon legal principles and a lone course of prac- tice, which are familiar, and which have often been the subject of discussion and deliberation. . Considering, therefore, the nature of the subject, the urgent necessity for a speedy and prompt decision, we have not thought lt expedient CO delay the ju loment. J have, therefor , to state, in behalf of the court, under the weighty responsibility which rests upon us, and as the unanimous opinion ot the eourt, that the writ ik ot habeas COTPUS praye d for cannot bi oranted. Writ r'¢ fused. Smoot v. LarFerty, SuPREME Court oF Ir] INoIs, 1845 (2 Gilm. Soar ( ATON, alee The deelarat on 1n this cause states sthat the def nd ant below was sheriff of the county of Gallatin. and as such sheriff, had in his hands a certain execution and fee bills against the plain- tiff below, by virtue of which he levied upon a certain ferrv boat, the property of the said plaintiff, and sold it without having the same appraised by three disinterested householders. as required by the provisions of the act of January 6th, 1843, entitled, ‘*An act regulating the sales of property on judgments and executions.” The declaration contains sutheient averments to show that the ease was embraced within the provisions of that act. To this declaration the defendant filed a demurrt Ls which Was OVe rrul dl by the court and judgment given for the plaintiff, which is now assigned for error. The only question presented for our consideration is the consti Inited Ss ales, | l Stat tutionality of that law. The Supre me Court of the in the Case of McCrack Tt Vi. Hayward, decided alt the January term, 1844, have distinctly decided that the act of 1841 is an ex- press violation of the constitution of the United States and void. The provisions of the act first mentioned are substantially the same as those of this act. As by the constitution of the United States that court has ultimate exclusive jurisdiction of that question, we are bound by its decision. The judgment of the circuit court is reversed with costs. Wicxs v. Horcnxiss, Court or CHancery or New York, 1823 (i Johns Ohe 297). Kent, Chancellor: The decisions of the Supreme Court of the288 SOURCES AND FORMS OF LAW United States upon questions arising upon the construction of the powe rs and authority of the Constitution must be definitive and binding upon all the tribunals of the Union, because the Constitu- tion has made their judgments and decrees final and without appeal. Kvery decision by a court in the last resort, in a ease within its undoubted jurisdiction, must, from the necessity of the Casec, be absolutely binding. The proposition that the state courts are equally supreme, independent and absolute in the considera- tion able. and decision of such national questions strikes me as unten- It would lead to the subversion of all order and subordina- There must be a paramount power somewhere in the organ- tion of every political institution. or there 1s no government. Supreme Court of the United States, on questions within ‘oenizance, is that power; and if the state courts were to undertake to disobey or elude its decisions, the consequence would be discord and confusion, or a dissolution of the national compact. I should have deemed it my duty, therefore, to have maintained this doctrine, even if I had considered the application of a prohibi- tion in the Constitution to the discharge under the act of 1811, to have been a mistaken application. Win Kins. v. Purties, SupremE Court or Onto, 1827 (3 Ohio, 19), By the Court: The case of Marstiller and others v. McLean, 7 Wheat. 156, was decided upon the authority of the case of Perry and others v. Jackson and others, 4 Term, 516. In this latter case, Lord Kenyon asserts that it is the first time the question had been brought up for decision whether, where the saving clause of the statute of limitations protected only a part of those joined in the action, all the plaintiffs could claim its protection. It decided against the protection, but upon grounds by no means satisfactory to us. The ease was one of partnership, which, we think, was suth- cient of itself, to have warranted the decision made. This is in part relied upon, and the decision is, in part, put upon the eround of the grammatical construction of the statute. The Supreme Court of the United States ground themselves upon this authority. Highly as we respect the opinions of this tribunal, we can not 1 ® . . adopt them in eonstruction of our own statutes, where they are at variance with our own judgments. We consider the reasoning of the eourts of Connecticut and Kentucky, cited by the other side,JUDICIAL DECISIONS 289 as more consonant to the general advancement of justice. It is our opinion, that, if any one of the parties who sue a writ of error is within the proviso that takes the ease out of the statute of limita- tions, the case is saved ror all the partie Ss. The demurr¢ r to the replication is overruled, and cause remanded for further proceed- 1no's. Conens y. Vireinta, Supreme Court or THE UNITED STATES 1821 (6 Wheat. 265). 3 Marshall, Ce ie: The counsel for the di fendant in in opposition tO this lr ile ot construction. some dic ta ot the court, LOL Uree. in the case ot Marbw Yv. fdadison. 1 It is a maxim not to be disreearded, that eeneral expressions, in €very opinion, are to be taken in connection with the Cas in which those expressi0o1 Ss are used. lf they 0 beyond the case ; they may be respected, but ought not to control the judgment in a subsequent suit when tl e very point is presented for decision. The reason of this maxim is obvious. Thi question actually before the court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible be aring on all other Cases 1s Sé ldom completely investigated. In the ease of Marbury V. Madison, the sinele question before ' the court, so far as that case can be applied to this, was, whether the lecislature eould five this eourt original jurisdiction in a Case im which the constitution had clearly not given it, and in which no doubt respecting the construction of the article eould possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a ease. But in the reasoning of the court in support of this decision, some expressions are used which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the judicial power; and it is against this argument that the reasoning of the court is directed. They say that, if such had been the intention of the article, “it would cer- tainly have been useless to proceed farther than to define the iudicial power, and the tribunals in which it should be vested.” The court says, that such a construction would render the clause, dividing the jurisdiction of the court into original and appellate, 19290 SOURCES AND FORMS OF LAW words are often, in their opera- at “affirmative firmed; and, totally useless; tha f other. objects than those which are al f Marbury v. Madison), a negative or to them, or they have no operation tion, negative in this ease (in the case 0 exclusive sense must be given at all.” “It cannot be pre sumed.” adds the court, “that any clause in the constitution 1s ‘ntended to be without effect: and, therefore, such a construction 1s ‘nadmissible, unless the words require Tt The whole reasoning of the court proceeds upon the idea that the affirmative words of the clause eiving one sort of jurisdiction, must imply a negative of any other sort of jurisdiction, because other- wise the words would be totally inoperative, and this reasoning 1 case to which 1t was strictly applicable. ch am! is advanced in ¢ ld have been exercised, the clause that case original jurisdiction cou would have been entirely useless. Having court lays down a principle which is generally correct, in terms much broader than the decision, and ler than the reasoning with which that decision its principle. under consideration such cases only in its view, the Lot only much broa |. but in some instances contradictory to tion of the words in that is supportec The reasoning sustains the negative operat ise otherwise the clause would have no necessary to give effect to the case, becat meaning what- ever, and because such operation was 1ade is, to apply the con- ‘ntention of the article. The effort now n elusion to which the court was eonduetec to one in which the words have their full opera- | by that reasoning 12 the particular case, tion when understood affirmatively, and in which the negative, or exclusive sense, is to be so used as to defeat some of the great objects of the articie. To this construction the court cannot give its assent. eral expressions in the case of Marbury v. Madison must be under- stood with the limitations which are given to them in this opinion ; n no degree affect the decision in that case, or The gen- limitations, which 1 the tenor of its reasoning. ay > ‘ , \ Fr \ ‘ Ty ~ FiLoripa C. R. Co. v. ScuuTtr, SUPREME COURT OF THE UNITED GrarEs. 1881 (103 U.S. 118). Waite, CG. J.: As to the first question, we deem it sufficient to say that the Supreme Court of Florida has distinctly decided that in the ease of this Company, as well as the other, the statutory authority was complete. The point was directly made by theDICIAL DECISIONS 291 pleadings and as directly passed on by the court. Although th bill in the ease was finally dismissed because it was not proved as 1 that any of the state bonds ’had been sold, the decision w no just sens Lie tLiit. It Cannot be said that a case is not authoritv on one point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was tound in the end which disposed of the whole matter. Here the precise question was properl presented, fu argued, and elaborately considered in the opinion. The decision on this question was as much part of the judgment of the court as = ] 3 , 4 14 oo ] was that on an otner I several matt rs on which the case as i ] ] ] ] a whole dt pe hnaed, In Cross vy. Burke, 146 U. S. 82 (1892). Fuller. C. J. savs: It was to this act that Mr. Justice Miller 2 erred in Wales v. Whitney 114 U. S., 564, 565, as restoring “the appella jurisdiction of this eourt in habeas corpus eases ( S sO courts and that this necessarily included jurisdiction over similar judgments of the Supreme Court of the District of Columbia.” But the question of jurisdiction does not appear to have been contested in Wales v. Whitney, and where this Is so, the court does not consider itself bound by t ew expressed. Trinity County v. McCammon, Supreme Court or FORNIA, 1864 (25 Cal. 117 By the Court, Shafter, J., on petition for modification of opinion : Since the decision of the appeal taken in this action, a petition asking: not for a has been presented on the part of the appellant rehearing, nor for any modification of the judgment, but for a modification of the opinion, on the ground that the opinion is to some extent obiter; and on the further ground that the Court has misapprehended the contents of the report made by the com- mittee appointed by the County Judge to pass on the value of the building owned by Edeecomb, and which he proposed to sell to the county. In so far as the opinion passes upon any question not necessary to the decision of the appeal, it will interpose no obstacle to a re- investigation of such question upon its merits in any case that may hereafter come to this Court in which the point shall be directly the contents of presented. In so far as the misapprehension o the committee’s report 1s concerned, the document as such, was999, SOURCES AND FORMS OF LAW not in the transcript, and we were therefore justified in assuming Jo the contents set out in the proceed- ul that it had no contents, alvwn 1 Any ease coming here hereatter showing that the report Ines. l r than those to which the present record confines it, will be a case, to that extent, different from the pres- e to which the opinion in this ease cannot be considered as having any just application. Petition denied. compre hended topics oth ] ent. and of course « Srow v. PEOPLE, SUPREME COURT OF Truroris, 1850 (25 Il. S81). Mr. Chief Justice Caton delivered the opinion of the court: The first question we propose to consider, is that of the jurisdic- tion of the court before which the prisoner was eonvicted. This uestion we shall determine solely upon the construction of the q sroviso of the first section of the fifth article of the Constitution, I without particular reference to the different acts of the legislature, by which it is supposed that the court has been deprived of yuris- diction. That proviso is this: “Provided, that inferior local courts of civil and criminal jurisdiction may b¢ established, by the general assemblies, in the cities of this State, but such courts shall have a uniform organization and jurisdiction in such cities.” We are first called upon to consider this provision of the Constitution, 1m reference to this very court, in the case of Perry v. The People, 14 Ill. 496. The objection, and the only objection then raised to the court, was, that the legislature had established one court in one city of the State only; whereas it was, by this clause of the Constitution, required, when it attempted to exercise the power here conferred, to legislate for all the cities alike. and establish the same court, or courts, in each of the cities within the limits of the State. It was objected, and only objected, as this had not been done, and but one city had been provided with a court, that it was not authorized by the Constitution. This, we say, was the only question presented by the record, and the only one the court was called upon to decide. That was decided by the court, and it was held that the legislature might establish courts in such eities alone, as the public exigencies in its judgment might require. It is true that the court, in its opinion, went beyond the ease before it, and, in anticipation of the future, made an admonitoryJUDICIAL DECISIONS 293 . »|> —hs 71 2 ° Sh . Tile ag iT hoa remark, which contains an intimation. that all the courts in all the cities, which should be established, must have a uniform organiza- tion and jurisdiction. It is this: “Th ‘uniformity of organiza- tion and jurisdiction’ has respect to the courts and not to the cities as its antecedent. As these courts mav be extended, cart will be taken to introduce into other cities on of a ‘unitorm chai ‘ganization and jurisdiction;’ as tl power is restricted L and confined to such ecnaracter as shall proauce uniformity in the mode of organization and extent of jurisdiction.” The remark Was undoul tecdly crue and pertinent, that the miformits ot organ ization and jurisdiction, has respect to the courts at d not to the cities; but it was not necessary to say how far that uniformity was required to extend. It was sufficient that the uniformity en- join d did not reter to cities, and that the general ass mbly might legislate for one city and not for another. Hortcoms vy. Bonnett, Supreme Court ol Micute@an, 1875 (32 Mich. 6). Graves, ( J = On the trial be fore a Ur the evidence tended to establish a right in Holeomb to recover. but the defence con- tended that all ri rht of actio o n on the bond was excluded on the ground that the plaintiff had never got into actual possession un- der the judgment, and cited Delashman vy. Berry, 21 Mich. 516, as decisive on the subject; and the circuit judge, taking the sa view of that case, felt constrained to yield to this position of de fendants, and he accordingly instructed the jury to find against Holeomb. Without questioning in th least the correctness of the decision itself in Delashman v. Bi rry, we do not fail to observe that th language is pretty broad and open to an application much more extended than was desioned. unl SS strictly confined tO the state of facts there shown. It is hardly necessary to observe that the language used in deciding eases can rarely be separated from the specific matters contemplated by the court, without leading: to results completely at variance with the principle with which the expressions were meant to harmonize. In laying down propo- sitions which appear correct in view of the actual case as shaped by the record, it is not generally considered needful to write down in guarded terms the particular limitations of the propositions, or the conditions which would not be suited to them. It is sup-994 SOURCES AND FORMS OF LAW posed they will be read not as abstractions, but as propositions inseparably bound up with the particular issue and matters the court is then dealing with, and it is in this way that the observa- tions in the case mentioned must be considered, and without yielding to them any further than the needs of that case required. Now. in Delashman v. Berry the plaintiff had got judgment of restitution merely, and so far as appeared, there was no impedi- ment to hinder him from getting actual possession pursuant to the judgment. Nevertheless, without presenting any reason what- ever for failing to get, or even for omitting all effort to get posses- sion. he at once sued on the bond, and the court thought he did not, upon a just view of the statute, show a right of action. There was no pretense that his opponent by dilatory means had obstruc- ed his right under the judgment, and had ¢ ffeetually prevented his eetting into possession in compliance with it, until his estate had come to an end by effluxion of time. In the present case the defendant Bonnell appealed against Hol- comb’s recovery before the commissioner, and im order to effectuate e eave this bond to secure the appeal and keep Holeomb out, s! rent: and the cireuit court, whilst Holeomb’s term was still run- ning, and when it had about two-thirds of a year to continue, also cave judgment on the appeal for him, and adjudged his right to possession, and that he was entitled to process to be put in, and she then delayed his remedy of restitution until his term was about expired; and she now resists a recovery on the bond for the reason that he did not do the very thing which the giving of the bond enabled her to prevent his doing, and which she did prevent his doing. Having by means of the bond placed herself in a position which enabled her to delay Holeomb in getting possession, which the judgment determined he was entitled to, until his right to go in was substantially terminated by the expiration of his term, and having in fact so delayed him, she now insists that under the stat- ute as explained in Delashman vy. Berry, Holeomb is eut off from all remedy on the bond for the very reason that he did not obtain actual possession under his judgment. [ think this position cannot be sustained. The legislature could never have intencled to require a bond as a Ponelitvan ot appeal, and at the same time have intended that it should be worthless if the appellant after judgment for posse ssion in the appellate courtYBO5 should by mere dilatory action then delay actual restitution to the plaintiff until rad impossible as a consequence of the expiration of his term. Any such view would lead to absurdity and eross : hte i “ilar el . ig dienes “ \V7} +] lai justice. It would afford a bounty to trickery. When the plain tiff recovered on the appeal in the circuit court and the defendant refrained from carrying the case further, the former was abso lutely entitled to restitution and all that remained to be done to give him restitution was al solute ly due tO him. No lawful right existed any where Co cle ny him. He had done all that was practicable for him to do, and was not at fault in any way. He submitted, as he was compelled to submit, so far as the record shows, to the stay oO tained by defendant Bonnell, and which without the bond she could not have been in a position to obtain, and she should not be allo ved to defeat the bond by setting up his failure to do what she thus made it impossible for him to do. [4 trial orde red. Campbe ll and C ley, JJ.. eoneurred. —- ink the judo 7S] ld be reversed ith a ‘ and « ’ Hink the judgment shoul e reversed, with costs, and a new 3. Booxs or AvuTHORITY These works are briefly described in Winfield, The Chief Sources of English Legal History, and in Holdsworth, Sources and Literature of riven to fuller eriticisms in the ‘ Enelish Law (where references are author’s History of English Law Kent, Commenranriss, I, 499. The reports of adjudged cases are admitted to contain the high- est and most authentic evidence of the principles and rules of the common law; but there are numerous other works of sages in the profession which contribute very essentially to facilitate the researches and abridge the labor of the student. These works ] acquire by time, and their intrinsic value, the weight of authority ; and the earlier ti xt-books are eitecdl and relied upon as such, in the discussions at the bar and upon the bench, in cases where judieial authority 1s wanting. One of the oldest of these treatises is Glanville’s Tractalus de Legibus Angliae, composed in the reign of Henry II., in which he was chief justiciary, and presided in the aula regis. Itis a plain, dry, perspicuous essay on the ancient actions and the forms of writs then in use. It has become almost obsolete and useless forSe AI eel NC ate at se ta 296 SOURCES AND FORMS OF LAW any practical purpose, owing to the disuse of the ancient actions ; but it is a curious monument of the improved state of the Norman administra tion of justice. It is peculiariy venerable, if it be, as is sa Lid, the most ancl 1ent book extant upon the laws and customs e England. 7 has been cited, and commented upon, and extolled, by Lord Coke, Sir Matthew Hale, Sir Henry Spelman, Selden, Blackstone, and most of the eminent lawyers and antiquaries of the two last centuries. Mr. Reeves says that he incorporated the vhole of Glanville into his History of the English Law. Bracton wrote his treatise, De Legibus et Consuetudinibus Angliae, in the reign of Henry III., and he is said to have been a judge itinerant in that reign, and professor of law at Oxford.* He is a classical writer, and has been called, by a perfect judge of his merits, the father of the English law, and the great ornament of the age in which he lived. His work is a systematic perform- ance, giving a complete view of the law in all its titles, as it stood at the time it was written; and it is filled with copious and ac- curate details of legal learning. It treats of ae several ways of acquiring, maintaining, wae recovering property, much in the manner of the Institutes of Justinian. The style, clear, expres- sive, and sometimes polished, has been ascribed to the influence of the civil and canon law, which he had studied and admired; f the quotations, that he and the work evinces, by the freedom ¢ had drank deep at those fountains. In the reign of Edward I., Bracton was reduced into a com- pendium by Thornton, which shows, says Selden, how great the authority of Bracton was in the time of Edward I. He continued to be the repository of ancient English jurisprudence, and the prin- cipal source of legal authority down to the time of the publica- tion of the ee of > Temi cae 1 The latter portion of this statement is incorrect. “The author, Henry de Bratton (from a village of Bratton, in Devonshire) was a clergyman and royal judge under Henry IIT. (1216-1272). We meet him first in 1245 as itinerant justice, from 1248 to 1267 as assize judge in the southwestern counties of Eng- land. His permanent office was that of royal judge in the placita coram ipso rege (qu@ sequuntur regem), i.e., the old curia regis proper. He never sat in the bancum regis at Westminster. He died in 1268. His name, the incorrect spelling of which he cited as an illustration of the invalidity of a writ, was frequently misspelled by ecopyists. As a consequence, he has come down to posterity as Bracton.” Brunner, Sources of English Law, Select Essays in Anglo-American Legal History, II. 7, 35. See 2 Holdsworth, 230-290: and as to his “authority,” ibid, 288.BOOKS OF AUTHORITY iT Britton and Fleta, two treatises in the r ign of Edward I., were nothing more than appendages to Bracton, and from whom they drew largely. Lord Coke says that Britton was Bishop of Here- ford! and of profound judgment in the common law, and that Fleta was written by some learned lawyer, while in confinement in the Fleet prison. The dissertation which Si Iden annexed to the edi- tion of Fleta. printed in his time, is evidence of the high estima- tion in which the work was then held. Sir John Fortescue’s treatise, De Laudibus Li jum Angliae, was written in the reien of Henry VI., under whom he was Chief Justice, and afterwards Chancellor. It is in th form of a dialogue between him and the young prince, and he undertakes to show that the common law was the most reasonable and the most ancient in Europe, and superior to the civil law. It displays sentiments of liberty, and a sense of a limited monarchy, remarkable, in the I heree and barbarous period of the Lancastrian civil wars, and an air of probity and piety runs through the work. He insisted, for instance, that the conviction of criminals by juries, and without torture, was much more just and humane than the method of the continental nations; and that the privilege ot challenging jurors, and of bringing writs of attaint upon corrupt verdicts, and the usual wealth of jurors, afforded that sceurity to the lives and prop- erty of English subjects, which no other country was capable of affording. He run a parallel, in many instances, between the common and the civil law, in order to show the superior equity of the former, and that the proceedings in courts of justice were not so dilatory as in other nations. Though some of the instances of that superiority which he adduces, such as the illegitimacy of ante-nuptial children and the doctrine of feudal wardships, are of no consequence, yet the security arising from trial by jury, and the security of life and property by means of the mixed gov- 1 This is incorrect. “According to the investigations of its latest editor, it owes its origin to a project (which is historically verifiable) of Edward I to cause a compilation of English law to be made after the manner of the In- stitutes. The work is not written in the style of a law book, but its prop- ositions are couched in the authoritative language of a lawgiver. .. . The author, Britton, was probably a clerk in the service of the crown.” Brunner, Sources of English Law, Select Essays in Anglo-American Legal History, Lie olea a en ea See AVS SOURCES AND FORMS OI! LAW ernment of Eneland, and the limitations of the royal prerogative, were solid and pre-eminent marks of superiority. Littleton’s Book of Tenures was composed in the reign of Ed- ward IV.. and it is confined entirely to the doctrines of the old Enelish law. concerning the tenure of real estates, and the inci- dents and services relating thereto. In the first book, Littleton treats of the quantity of interest in estates, under the heads of fee-simple, fee-tail, tenant in dower, tenant by the curtesy, tenant for life, for years, and at will. In the second book, he treats of the several tenures and services by which lands were then held, such as homage, fealty, villenage, and knight service. In the third book, he treats of divers subjects relative to estates and their tenures, under the heads of parceners, joint tenants, estates on condition, releases, warranty, &e. He explained the learning of that period on the subject of tenures and estates, with a felicity of arrangement, and perspicuity and precision cf style, that laced him above all other writers on the law. No work ever attained a more decided and permanent reputation for accuracy and authority. Lord Coke says, that Littleton’s Tenwres was the most perfect and absolute work, and as free from error as any book that ever was written on any human science; and he is justly in- dignant at the presumptuous and absurd censures which the cele- brated civilian, Hotman, was pleased to bestow on Littleton’s te view of English feudal tenures. He said he had known many of his cases drawn in question, but never could clear and accur: find any judgment given against any of them, which could not be affirmed of any other book in our law. The great excellence of Littleton is his full knowledge of the subject, and the neatness and simplicity of hismanner. He cites but very few eases, but he holds no opinion, says his great commentator, but what is supported by authority and reason. A great part of Littleton is not now law, or is entirely obsolete with us; and particularly much of. the matter in the chapters on estates in fee-tail, eopyholds, feudal services, discontinuance, attornment, remitter, confirmation, and warranty. But, even at this day, what remains concerning ten- ures cannot be well understood without a general knowledge of what is abolished; and even the obsolete part of Littleton can be studied with pleasure and profit by all who are desirous to trace the history and grounds of the law. It has been supposed by Mr.Knoland are not to be compared in reputat to his productions in physical and moral science; but it is nevertheless true, that shed light ancl learning, and left th lmpre SS I profounc dl original thought. On eVery s ibject whiel he tou h l. lt was th course of his life to connect law with other studies, and therefore. he admitt d that his arguments might have the nore variet ll d pi rhay S the oreater depth ot reason. His pri cipal law tracts are his Hlements of the Common Law, containing an illustration ot the most Important maxims of the commo) law, and of the use of the law in its application to the protecti erson, property and character, and his Reading upon the Statute of Uses. Lord bacon seems to have disdained to cite authorities in his law treatises; and in that respect he approved of the method of Little- ton and Fitzherbert, and condemned that of Perkins and Staun- 1Important estimates of Coke and Bacon will be found in 5 Holdsworth, 423-493 and 238-254te Spee erste tree caer mise ee eS ee eer 300 SOURCES AND FORMS OF LAW forde. He admits, however, that in his own private copy he had all his authorities quoted, and that he did sometimes “‘weigh down authorities by evidence of reason:” and that he intended rather to correct the law than soothe received error, or endeavor to recon- cile contradictions by unprofitable subtlety. He made a proposal to King James for a digest of the whole of the common and statute law of England; and if he had been encouraged and enabled to employ the resources of his great mind on such a noble work, he would have done infinite service to mankind, and have settled in his favor the question, which he said would be made with posterity, whether he or Coke was the greater lawyer. The writings of Lord Bacon are distinguished for the perspicuity and simplieity with which every subject is treated. Lord Coke’s Institutes have had a most extensive and permanent nfluence on the common law of England. ‘The first part is a commentary upon Littleton’s Tenures ; and, notwithstanding the magnitude of the work, it has reached seventeen editions. Many of the doctrines which his writings explain and illustrate have be- come obsolete, or have been swept away by the current of events. The influence of two centuries must inevitably work a great revolu- tion in the laws and usages, as well as in the manners and taste of anation. Perhaps everything useful in the Institutes of Coke may be found more methodically arranged, and more interesting- ly taught, in the modern compilations and digests; yet his author- ity on all subjects connected with the ancient law is too great and too venerable to be neglected. The writings of Coke, as Butler has observed, stand between and connect the ancient and the mod- ern law—the old and new jurisprudence. He explains the ancient system of law as it stood in his day, and he points out the leading circumstances of the innovation which was begun. We have in his works the beginning of the disuse of real actions; the teidency of the nation to abolish the military tenures; the rise of a system of equity jurisdiction, and the outlines of every point of modern law. The second part of the Institutes of Coke is a commentary upon the ancient statutes, beginning with Magna Charta, and proceed- ing down to the reign of Henry VIII.; and his commentaries upon the ancient statutes consisted, as he himself declared, of the au- thentic resolutions of the courts of justice, and were not like the glosses of the civilians upon the text of the civil law, which con-BOOKS OF AUTHORITY 301 tain so many diversities of opinion as to increase rather than to resolve doubts and uncertainties. His commentary upon Magna Charta, and particularly on the eelebrated 29th chapter, is deeply interesting to the lawyers of the present age, as well from the value and dignity of the text, as the spirit of justice and of civil liberty which pervades and animates the work. In this respect, Lord Coke eclipses his contemporary and great rival, Lord Bacon, who was as inferior to Coke in a just sense and manly vindieation of the freedom and privileges of the subject, as he was superior in general science and philosophy. Lord Coke, in a very advanced age, took a principal share in proposing and framing the celebrated Petition of Right, containing a parliamentary sanction of those constitutional limitations upol the royal prerogative which were deemed essential to the liberties of the nation. The third and fourth parts of the Institutes treat of high treason and the other pleas of the crown, and of the history and antiquities of the English courts. The harshness and severity of the ancient eriminal code of England are not suited to the taste and moral sense of the present age; and those parts of the Institutes are of very inconsiderable value and use, except it be to enlighten the researches of the legal antiquary. In this respect, Coke’s Pleas of the Crown are inferior to the work under that title by Staunforde, who wrote in the age of Philip and Mary, and was the earliest writer who treated didactically on that subject. Staunforde wrote in law French; but Lord Coke, more wisely and benevolently, wrote in English, beeause. he said. the matter of which he treated concerned all the subjects of the realm. Before we quit the period of the old law, we must not omit to notice the grand abridgments of Statham, Fitzherbert, and Brooke. Statham was a baron of the Exchequer, in the time of Ed- ward IV. His abridgment of the law was a digest of most titles of the law, comprising under each head adjudged cases from the Year Books, given in a concise manner. The cases were strung together without regard to connection of matter. It is doubtful whether it was printed before or after Fitzherbert’s work, but the latter entirely superseded it. Fitzherbert was published in the reion of Henry VIII., and came out in 1514, and was for that period, a work of singular learning and utility. Brooke was pub- lished in 1573, and in a great degree superseded the others. The two last abridgments contain the substance of the Year BooksSO eae 302 SOURCES AND FORMS OI LAW reoularly digested; and by the form and order which they gave to the rude materials before them, and the great facility which knowledge, they must have they attorded to the acquisition O sila OPK . lw at ranidlyv he improvement of legal contributed very greatly and rapidly to the nmprovement OF 1eg¢ mee. Even those exceedingly laborious abridgments were in S@l their turn superseded by the abridoments of Rolle and his suecess- ors. > The treatise of Sir Henry Finch, being a discourse in four books, on the maxims and positive grounds of the law, was first pub- lished in French. in 1613: and we have the authority of Sir Wil- liam Blackstone for saving, that his method was greatly superior to that in all the treatises that were then extant. His text was weighty, concise, and nervous, and his illustrations apposite, clear and authentic. But the abolition of the feudal tenures, and the disuse of real actions, have rendered half of his work obsolete. Sheppard’s Touchstone oT Common Assurances was the produe- tion of Mr. Justice Dodderidge, in the reign of James I. It isa work of great value and authority, touching the common-law _ modes of conveyance, and those derived from the Statute of Uses. It treats also copiously of the law of uses and devises; but the ereat defect of the book is the want of that lucid order and per- spicuous method which are essential to the cheerful perusal and ready perception of the merits of such a work. The second volume of Collectanea Juridica has an analysis of the theory and practice of conveyancing, which is only a compendious abridgment of the Touchstone ; and there is a very improved edition of it by Preston, who has favored the profession with several excellent tracts on the law of real property. Rolle’s Abridgment of the Law was published soon after the Restoration, with an interesting preface by Sir Matthew Hale. th It brings down the law to the end of the reign of Charles I., and though it be an excellent work, and, in point of method, succinct ness and legal precision, a model of a good abridgment, Sir Mat- thew Hale considered it an unequal monument of the fame of Rolle, and that it fell short of what might have been expected from his abilities and great merit. It is also deemed by Mr. Hargrave a ereat defect in Viner’s very extensive abridgment, that he should have attempted to engraft it on such a narrow substance as Rolle’s work. Rolle was Chief Justice of England under the protectorate of Cromwell, and under the preceding commonwealth:1 ancl his I'( public an dignity ized. Since the period of the English revolution, the new digests have superseded the use of the former ones; and Bacon, Viner, Comyns, and Cruise contain such a vast accession of modern law learning that thei predecessors have fallen into oblivion. Viner’s Lbridaqm nt, with all Lts dl rects a id Inaceurac L¢ gi is a conve nient part of every lawyer’s library. We obtain by it an easy and prompt ecess to the learning of the Year Books and the old abridoments. nd the ork is e1 hed h Ly reports of adjudged eases not to be found elsewhere: but, after all that can be said in its or, it 18 an enormous s of indigested matter, and not worth the labor of thi 1 The Digest of Lord Chief azon Comyns is a producti of vastly higher order and repu- tation, and it is the eS\ (lig s— extant upon th entire body of the Enelish law. Lord Kenyon held his opinion alone to be of great authority, for he was considered by his contemporaries as the mos able lawyer in Westminst c Hall. T] title el ade) has otten been considered as the most « lal rate ¢ nd 1 setul head of the work: but the whole is distineuished for the variety of the matter its Lu id order. the prec sion and bre vit of the expression, and | i the accuracy and felicity of the execution. Bacon’s Abridament was composed chiefly from materials left by Lord Chief Baron Gil- eae i ah { ee foe eee Ey bert. | h: more oO the character O© an elementary WOrk than Comyn’s Dig Sh: The first edition appeared in L736, and was much admired, and the abridgment has maintained its great in- fluence down to the present time, as being a very convenient and valuable collection of principles, arising under the various titles in the immense system of the English law. And in connection with this branch of the subject, it will be most convenient, though a lit- tle out of the order of time, to take notice of Cruise’s recent and very valuable Digest of the Laws of England respecting Real Prop- erty. It is by far the most perfect elementary work of the kind which we have on the doctrine of real property, and it is distin- guished for its methodical, accurate, perspicuous and comprehen- sive view of the subject. All his principles are supported and illustrated by the most judicious selection of adjudged eases. They are arranged with great skill, and applied in confirmation of his doctrines with the utmost perspicuity and force.304 SOURCES AND FORMS OF LAW The various treatises of Lord Chief Baron Gilbert are of high character, and they contributed much to advance the ‘ormer part of the a century. His treatise value and science of law in the f on Tenures deserves particular notice, as having explained, upon feudal principle s. several of the leading doctrines in Littleton and Coke: and it is a very elementary and instructive essay upon that abstruse branch of learning. His essay on the Law of Hvidence is an excellent performance, and the groundwork of all the subse- quent collections on that subject; and it still maintains its char- acter notwithstanding the law of evidence, like most other branches of the law, and particularly the law of commercial contracts, has expanded with the progress and exigen cies of society. His treatise on the Law of Uses and Trusts is another work of f high authority, and it has been rendered peculiarly valuable by the revision and copious notes of Mr. an The treatises on the Pleas of the Crown, by Sir Matthew Hale and Sergeant Hawkins, appeared early in the last century, and they contributed to give precision and certainty to that mest deep- ly interesting part of jurisprudence. They are both of them works of authority and have had great sanction, and been uniformly and strongly recommended to the profession. Sir Martin Wright’s Introduction to the Law of Tenures is an excellent work, and the value of it cannot be better recommended than by the fact that Sir William Blackstone has interwoven the substance of that treatise into the second volume of his Commentaries. Dr. Wood published in 1722, his Instrtutes of the Laws of England. His ob- ject was to digest the law, and to bring it into better order and sys- tem. By the year 1754, his work had passed through eight folio editions, and thereby afforded a decisive proof of its value and popularity. It was greatly esteemed by the lawyers of that age; and an American judge (himself a learned lawyer of the old school) has spoken of Wood as a great authority, and of weight and respect in Westminster Hall. But it was the fate of Wood’s Institutes to be entirely super- seded by more enlarged, more critical, and more attractive publica- tions, and especially by Commentaries of Sir William Blackstone, who is justly placed at the head of all the modern writers who treat of the general elementary principles of the law. By the excellence of his arrangement, the variety of his learning, the justness of his taste, and the purity and elegance of his style, he communicatedBOOKS OF AUTHORITY 305 to those subjects which were harsh and forbidding in the pages of 1 “7 Coke the attractions of a liberal science, and the embellishments of polite literature. The second and third volumes of the Com mentaries are to be thoroughly studied and accurately understood. What is obsolete is necessary to illustrate that which remains in use, and the greater part of the matter in those volumes is law at this day and on this side of the Atlantic. 20Se A a eh aa eee CGE APASER LV) THE COMMON LAW IN AMERICA 1. Recreprion? Rermnscu. Tue Enautsu Common Law in THE Earty AMER- can Corontres (Bulletin of the University of Wisconsin, Historical Series, IJ, No. 4). The earliest settlers in many of the colonies made bodies of law, which, from every indication, they considered a complete state- ment of the needful legal regulations. Their civilization being primitive, a brief code concerning erimes, torts, and the simplest contracts, in many ways like the dooms of the Anglo-Saxon kings, would be sufficient. Not only did these codes innovate upon, and depart from, the models of common law, but, in matters not fixed by such codes, there was in the earliest times no refererse to that system. They were left to the discretion of the magistrates. In many Cases the colonists expressed an adhesion to the eom- he actual administration of mon law, but, when we investigate justice, we find that usually it was of a rude, popular, summary kind, in which the refined distinctions, the artificial developments of the older system have no place. in the early systems ot colon Tal lal laws. Then with the growth of national feeling there comes also a growth of unification of legal principles, for which the English common law affords the ideal or criterion. And, though during the decade immediately preceding independence, the Eng- lish common law was generally praised and apparently most read ily received by the larger part of American courts, still the marks of the old popular law remain strong, and most of the original308 THE COMMON LAW IN AMERICA features in American jurisprudence can be traced back to the ear- liest times. REsoLvE oF THE GreNERAL Court or MassacHuUsErts Bay, 25 May, 1636 (Mass. Colonial Records, le eA bar The Goun’, Deputy Goun", Tho: Dudley, John Haynes, Rich: Bellingham, Esq., Mr. Cotton, Mr. Peters, & Mr. Shepheard are ‘ntreated to make a draught of lawes agreeable to the word of God, w™ may be the fundamentalls of this comonwealth, & to present the same to the nexte Gen /all Court. And it is ordered, that in the meane tyme the magistrates & their assosiates shall peede in the courts to heare & determine all causes according to the lawes nowe established, & where there is noe law, then as neere the lawe of God as they can; & for all busines out of Court for w™ there is noe certaine rule yet sett downe, those of the standing counsell. or some two of them, shall take order by their best dis- erecon, that they may be ordered & ended according to the rule of Gods word, & to take care for all millitary affaires till the nexte Gen/all Court. CHARTER OF THE Provincr oF MassacuusETts Bay, 1691. And we doe further.for us our Heires and Successors Give and Grant to the said Governor and the great and Generall Court of Assembly of our said Province or Territory for the time being full power and Authority from time to time to make ordaine and establish all manner of wholsome and reasonable Orders Laws Statutes and Ordinances Directions and Instructions either with penalties or without (soe as the same be not repugnant or contrary to the Lawes of this our Realme of England) as they shall Judge to be for the good and welfare of our said Province or Territory And for the Government and Ordering thereof and of the People Inhabiting or who shall Inhabit the same and for the necessary support and Defence of the Government thereof. Joun Apams, Novanexus, No. VIII, 1774 (Adams, Works, IV, 12) | When a subject left the kingdom by the king’s permission, and if the nation did not remonstrate against it, by the nation’s per- mission too, at least connivance, he carried with him, as a man, allRECEPTION 309 the rights of nature. His allegiance bound him to the king, and entitled him to protection. But how? Not in France: the Kine of England was not bound to protect him in France. Nor in Amer- ica. Nor in the dominions of Louis. Nor of Sassacus. or Massa- Lo- chust Cts. He had a right to protection and the liberties ot Hus land, upon his return there, not otherwise. How, then. do we New Englandmen derive our laws? I say, not from parliament, not from common law, but from the law of nature, and the com- pact made with the king in our charters. Our ancestors were en titled to the common law of England when they emigrated, that 1s, to Just so much of it as they pleased to adopt, and no more. They were not bound or obliged to submit to it, unless they chose it. Derciaration or Rigurs or THE CONTINENTAL ConeREss, 1774. Whereupon the deputies so appointed being now assembled in a full and free representation of these colonies, taking into their most serious consideration the best means of attaining the ends aforesaid, do in the first place, as Englishmen, their ancestors, in like cases have usually done, for asserting and vindicating their rights and liberties, declare. 5. That the respective colonies are entitled to the common law of England, and more espt cially to the ereat and inestimable priv- ili ee of being tri d by the ir peers ot the vicinage, according to the course of that law. 6. That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization: and which they have, by experience, respectively found to be applicable to their several local and other circumstances. Nore py Horace Gray, Quincy’s Reports, 538-9. 1 Immediately after the Province Charter, the General Court attempted to establish a Court of Chancery; but the act was dis- allowed by the King in Council. Proy. Sts. 4&5 W. & M. (1692- 3) Ane. Chart. 222, 274. Rec. 1699, fol. 256. 2 Hutchinson’s Hist. Mass. 31. 4 Dane Ab. 518, 6 Ib. 405. Charles River Bridge v. Warren Bridge, 7 Pick. 368. In 1704 Attorney General Nor- 1 As to Equity in America, see Select Essays in Anglo-American Legal His- tory, Il, 779-823; Loyd, Early Courts of Pennsylvania, 159-211; Gager, Isquity, in Two Centuries’ Growth of American Law, 115, 129-152.LO THE COMMON LAW IN AMERICA they gave an opinion to Queen Anne that the Province Charter . J Lek conferred no authority on the General Court to establish suc court. 2 Chalmers’ Opinions, 182, 183. But Ryder and Strange, as Attorney and Solicitor General, in 1738 gave an opinion that the colonial assembly eould establish a Court ot Exchequer in South Carolina. 2 Ib. 170. The condition of Chancery jurisdic- tion in the Province of Massachusetts Bay is thus expressed in “the opinion of a great lawyer in the Colonies,” quoted by Gover- nor Pownall, whose term of office intervened between the decision of McNeal v. Brideoak, ubi supra [1752], and the argument upon the Writs of Assistance [1761]. “There is no Court of Chancery in the charter governments of New England, nor any court vested with power to determine causes in equity, save only that the jus- tices of the inferior court and the justices of the superior court respectively have power to give relief on mortgages, bonds, and other penalties contained in deeds. In all other chancery and equitable matters, both the Crown and the subject are without redress. This introduced a practice of petitioning the legislative ' courts for relief, and prompted those courts to interpose their au- thority. These petitions becoming’ numerous, in order to give the greater despatch to such business, the legislative courts trans- acted such business by orders or resolves, without the solemnity of passing acts for such purposes; and have further extended this power by resolves and orders beyond what a Court of Chancery ever attempted to decree, even to the suspending of public laws; which orders or resolves are not sent home for the royal assent.” Administration of the Colonies (3d ed.) 81, 82. The jurisdiction mentioned by Governor Pownall was conferred by Prov. Sts. 10 Weer 12 Anne: 5 Gide 8 G: 95 Anc. Chart 3955 326" Ole £02, 424. 501. And see 4 Dane Ab. 248: 6 Jb. 398: 7 Lb. 516, 518; 2 Amer. Jurist, 361, 362: Washburn’s Jud. Hist. Mass. 158, 167. Governor Bernard, in his answer on the 5th of September, 1763, to the “Queries proposed by the Lords Commissioners of Trade and Plantations,” for a copy of which, taken from the MSS. in the King’s Library, the writer is indebted to Mr. George Ban- eroft, says: “It might have been made a question whether the Governor of this Province has not the power of Chancellor deliv- ered to him with the Great Seal, as well as other Roval Gov ernors; but it is impracticable to set up such a claim now, after a non-usage of 70 years, and after several Governors have, in effect 3disclaim d it, \ Oo ll | Chancery, which have peen disallowed at h me, A COurt oO Chancery is very much wanted here, many causes of consequence frequently happening, in which no redress is to be had for want +t a Court of Kquity. [ am inclined to think that a mpl ant in a matter of eq lity his bill in the Court of Chancery in England sugegestine there y 10 gland, g was no Provincial Court in which he could be relieved. that the bill would be retained, in the same manner as 1] supposed a libel in the high Court of Admiralty would be admitted, if there was no inferior court of Admiralty in the Province, unless it was used only to enforce the necessity of establishing a Provincial Court Wharton v. Morris, Supremp Court or Pex NSYLVANIA, 1785 M’ Kean, Chi f Justice, deli ered a circumstantial and arn charge to the Jury. He said, that t e- want of a Court ith equi table powers, like those of the Chance ry in England, had lone been felt in Pennsylvania. The inst tution of such a Court, he observ« d, had once bx en agitated here: but the houses of Assembly, antecedent to the revolution, successfully O} = ] osed liGe: DeCCATIS¢ The \ were apprehensive of encreasine, by that means. the powe1 and influ nee ot the Gove BHOR ho el Limed it as’ a Fl ht to be Chan or. For this reason, many inconveniences have been suffered. No adequate remedy is provided for a breach of trust: no relief can be obtained in eases of covenants with a penalty, ete. This detect of jurisdiction has necessarily obliged the Court upon such occasions, to refer the question to the Jury, under an equitable and conscientious interpre tation of the agreement of thi parties ; 1 and it is upon that ground, the Jury must consider and decid the present case.) Story, ComMENTARIES ON THE ConstTITI TION OF THE UNITED STATES, S§ 147-152. 156, 157. S VAT. Plantations or colonies in distant countries are either such as are acquired by occupying and peopling desert and uncul 1As to equity in the United States. see 1 Pomeroy, Equity Jurisprudence, § 252-288. re re ee312 THE COMMON LAW IN AMERICA tivated regions by emigrations from the mother country, or such as, being already cultivated and organized, are acquired by con- quest or cession under treaties. There is, however, a difference between these two species of colonies in respect to the laws by which they are governed, at least according to the jurisprudence of the common law. If an uninhabited country is discovered and planted by British subjects, the English laws are said to be im- mediately in force there; for the law 1s the birthright of every subject. So that wherever they go they carry their laws with them: and the new-found country is governed by them. § 148. This proposition, however, though laid down in such eeneral terms by very high authority, requires many limitations, and is to be understood with many restrictions. Such colonists do not carry with them the whole body of the English laws, as they then exist; for many of them must, from the nature of the case, be wholly inapplicable to their situation, and inconsistent with their comfort and prosperity. There is, therefore, this neces- sary limitation implied, that they carry with them all the laws applicable to their situation, and not repugnant to the local and political circumstances in which they are placed. § 149. Even as thus stated, the proposition is full of vagueness and perplexity; for it must still remain a question of intrinsic difficulty to say what laws are or are not applicable to their situa- tion; and whether they are bound by a present state of things, or are at liberty to apply the laws in future by adoption, as the growth or interests of the colony may dictate. The English rules of inheritance, and of protection from personal injuries, the rights secured by Magna Charta, and the remedial course in the admin- istration of justice, are examples as clear perhaps as any which can be stated as presumptively adopted, or applicable. And yet in the infaney of a colony some of these very rights and privileges and remedies and rules may be in fact inapplicable, or inconvent- ent and impolitic. It is not perhaps easy to settle what parts of the English laws are or are not in force in any such colony, until either by usage or judicial determination they have been recog- nized as of absolute force. : S508 im respect to conquered and ceded countries, which have already laws of their own, a different rule prevails. In such cases the crown has a right to abrogate the former laws and institute new ones. But until such new laws are promulgated, the oldlaws and customs*of the country remain in full force, unless so far as they are contrary to our religion, or enact anything that is malum wv se; for in all such place s the laws ot the conquerit * OL acquiring country shall prevail. This qualification of the rul arises from the presumption that the crown could never intend to sanction laws contrary to religion or sound morals. But al though the king has thus the power to change the laws of ceded and conquered countries, th power is not unlimited. His legislation is subordinate to the authority ot Parliam« nt. He cannot mi: ke any new change contrary to fundamental principles; he cannot exempt an inhabitar t trom that particular dominion, as tor in- stance from the laws of trade, or from the power of Parliament: and he cannot give him privileges exclusive of other subjects. § 151. Mr. Justice Blackstone, in his Commentaries. insists that the Am« rican CC loni S art pi iIncipally to be cle em<¢ dd conquere l, or ceded countric S; His laa ouage is, “Our American plantations are principally of this l: tter sort that Is ced d or conquers d coun- tries], being obtained in the last c« ntury either by right of con quest and driving out the natives (with what natural justice ] shall not at present inquire), or by treaties. And, therefore. the common law of England, as such, has no allowance or authoritv there; they being no part of the mother country, but distinct, though de} endent dominions.” thy7 S 152. There is great reason to doubt the accuracy of this statement in a legal view. § 156. The doctrine of Mr. Justice Blackstone, therefore. mav well admit of serious doubt upon general principles. But it is manifestly erroneous, so far as it is applied to the colonies and plantations composing our Union. In the charters under which all these colonies were settled. vith a single exception, there 1S, as has been already seen, an express declaration that all subjects and their children inhabiting therein shall be deemed natural-born subjects, and shall enjoy all the privileges and immunities there- of. There is also in all of.them an express restriction that no laws shall be made repugnant to those of England, or that, as near as may be conveniently, they shall be consonant with and con- formable the reto; and either expressly or by necessary impliea- tion it is provided that the laws of England, so far as applicable, shall be in force there. Now this declaration, even if the erown314 THE COMMON LAW IN AMERICA previously possessed a right to establish what laws it pleased over the territory, as a conquest from the natives, being a fundamental rule of the original settlement of the colonies, and before the emi- erations thither, was conclusive, and could not afterwards be 4 abrogated by the crown. It was an irrevocable annexaticn of the ] Bi colonies to the mother country, as dependencies governed by the same laws and entitled to the same rights. § 157. And so has been the uniform doctrine in America ever since the settlement of the colonies. The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them, upon their emigration, all of it which was ap- plicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law. 29. Sourcrs AND ForMs Kent, CommMEenTARIES, IJ, 472. The common law, so far as it is applicable to our situation and government, has been recognized and adopted, as one entire sys- tem, by the constitutions of Massachusetts, New York, New Jersey, and Maryland. It has been assumed by the courts of justice, or de- clared by statute, with the like modifications, as the law of the land in every state. It was imported by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charters and colonial statutes. It is also the established doctrine, that English statutes, passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country. The best evidence of the common law is to be found in the de- cisions of the courts of justice, contained in numerous volumes of reports, and in the treatises and digests of learned men, which have been multiplying from the earliest periods of the English history down to the present time. The reports of judicial decisions con- tain the most certain evidence, and the most authoritative and pre- cise application of the rules of the common law. Adjudged cases become precedents for future cases resting upon analogous facts, and brought within the same reason; and the diligence of counsel, and the labor of judges, are constantly required, in the study ofSOURCES AND FORMS 315 the reports, in order to understand accurately their im»ort. and the principles they establish. But to attain a competent knowl edee or the common law in all its branches has now beeome a very serlous underta C1ng2, and it requires steady and lastine per severance, 1n consequence of the number of books which beset and ] encumper the path of the student. Witi1ams v. Mites, Supreme Court or Ni BRASKA, 19038 (68 Neb. 463, 470). Pound, C.: What is the meaning of the term “common law of England,” as used in chapter 15a, ( omp. St. 19014 Does it mean the common law as it stood at the time of the Declaration of In dependence, or as it stood when our statute was enacted. or are we to understand the common-law system, in its entirety, includ ing all judicial improvements and modifications in this country and in England, to the present time, so far as applicable to our conditions 4 We cannot think, and we do not believe this court has ever understood, that the Legislature intended to petrify the com- mon law, as embodied in judicial decisions at any one time, and set it up in such inflexible form as a rule of decision. The theory + Or our system is that th law consists, not in the actual rules en- ¢ Le . . » = x . forced by decisions of the courts at any one time, but the prince ples from which those rules flow; that old principles are applied to new cases, and the rules resulting from such application are modified from time to time as changed conditions and new states ot fact require. Re TUSSE laer Glass Factory Vv. Re id, 5 Cow. 5ST. “We may look to American as well as English books and to Amer ican as well as English jurists, to ascertain what this law is, for neither the opinions hor precedents ot judges ean be said, with strict propriety, to be the law. They are only evidence of law.” Forbes v. Scannell, 13 Cal. 242, 286. On this ground it was held in Sayward v. Carlson, 1 Wash. St. 29, 23 Pac. 830, that a statu tory provision in Washington making the common law of England the rule of decision in all courts did not confine the courts to the decisions of the English courts, and of those American courts which have followed them closely, for the interpretation oft the law. Such has been the understanding of this eourt from the be- ginning, What Sir Frederick Pollock has called ‘the immemorial and yet freshly growing fabric of the common law” is to be our guide, not the decisions of any particular courts at any particular316 THE COMMON LAW IN AMERICA The term “common law of England,” as used in the stat- period. eeneral system of law which prevails in Eng- a ry ute, refers to that of the United States by derivation from land, and in most ne- land, as distinguished from the Roman or civil law system, which was in force in this territory prior to the Louisiana purchase. Hence the statute does not require adherence to the decisions of the Enelish common-law courts prior to the Revolution, im case this court considers subsequent decisions, either in England or America, better expositions of the general principles of that sys- U m.} Van Ness v. Pacarp, SUPREME COURT OF THE UNITED STATES, 1829 (2 Pet. 137). Stony = ebhe common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright: but they brought with them and adopted only that portion which was applicable to their situation. There could be little or no reason for doubting that the general doctrine as to things an- nexed to the freehold, so far as it respects heirs and executors, was adopted by them. The question eould arise only between different claimants under the same ancestor, and no general policy could be subserved by withdrawing from the heir those things which his ancestor had chosen to leave annexed to the inheritance. But between landlord and tenant it is not so clear that the rigid rule of the common law, at least as it is expounded in 3 East, 38, was so applicable to their situation as to give rise to necessary presumption in its favor. The country was a wilderness, and the universal policy was to procure its cultivation and improvement. The owner of the soil as well as the public had every motive to encourage the tenant to devote himself to agriculture and to favor any erection which should aid this result; yet, in the comparative poverty of the country, what tenant could afford to erect fixtures of much expense or value, if he was to lose his whole interest therein, by the very act of erection? His cabin or log hut, how- ever necessary for any improvement of the soil, would cease to be his the moment it was finished. It might, therefore, deserve con- 1 See Pope, English Common Law in the United States, 24 Harv. Law. Rev. 6.ES AND FORMS side ration whether, in ease the doctrine were not previous! ado} ted in a state by some authoritative prac tice or adjudication it ought to be assumed by this court as a part of the jurisprudence of such state. upon the mere footing of its existence in the co mon law. At present it is unnecessary to say more than that we clive no opinion on this question. The ease which has been argued at the bar may well be disposed of without any discussion of it MENG V. COFFEE, SUPREME Court or NEBRASKA. 1903 (67 Ne Bounds =. . «, Not only should the applicability of a common law rule be gveneral, extending to the whole, or the oreater ] i part of the state, or at least to an area capabl of definite judieia | L< ascertainment, to justify the courts in disregarding such rule. but we think, in view of the ease with which legislative alte ration al ani ndment may be had, the powt rE Lo cleclare esta] lished doe trines ot the common law applicable should be used somewhat sparingly. In the whole course of decisions in Nebraska, from territorial courts to the present, this power has been exercised but three times: (1) With reference to trespass upon wild lands by eattle (D. laney v. Hrrickson, 10 Neb. 492. 6 N. W. 600. 35 Am. Rep. 487), restricted, however, to wild lands by later adjudiea tions (Lorance v. Hilly r, 57 Neb. 266, 77 N. W. 755): (2) with reference to the effect of covenants to pay rent in a lease after di struction of leased buildings, dissented from, however, by three of the six judges (Wattles v. South Omaha. Ice & Coal Co.. 50 Neb. 251, 69 N. W. 785, 36 L.R.A. 424, 61 Am. St. Rep. 554) ; and (3) with reference to estates by entirety (Kerner v. McDon- ald, 84 N. W. 92, 83 Am. St. Rep. 550). Of these three eases it may be remarked that the first was in line with legislation which 7 1 clearly ran counter to the common-law rule, and that the other two dealt with strict feudal rule S ot property, based on conceptions lon since become obsolete. The recent holdings as to the statute of uses (Farmers’ & Merchants’ Ins. Co. v. Jensen, 58 Neb. 522, 78 N. W. 1054, 44 L.R.A. 861) and the statute of Elizabeth con- cerning’ charitable uses (In re Creighton’s Estate (Neb. ) 84 N. W. 273), are of different nature. In the statute of uses the court did not have to do with a rule of the common law, but with an Ene- lish statute, which was not adjustable to our legislation as to econ- veyances. In the statute of Elizabeth relating to charitable usesTHE COMMON LAW IN AMERICA OL CO nolish statute, and as that the court was again dealing with an E he courts, which they eould statute gave extrajudici ial powe rs to not exercise under our constitution, the question was one Ol legis- the rule, not of inapplicability. [hus the lative superseding of at bar and those in which common- distinetion between the ease law rules or E nelish statutes have been set aside is readily ap- parent. Here we are eonfronted with no coe to the econ- trary, nor are we dealing with an antiquated rule of feudal origin, but with an enlightened system of rules, cater d on obvious prin- ciples of justice, and eoncededly applicable to the general eondi- tions of the country and to the greater part of this state. More- over. in each of the three cases in which common-law rules have been held inapplicable, there was a complete rule at hand to take the place of the one r jected, and no complicated and extensive judicial legislation was required. In the case of trespasses by cattle the herd law was on the statute books. The rule as to the effect of covenants in a lease to pay rent Was atl isolated rule without collateral consequences, and the obvious and well-settled principle of apportionment governing all agreements was available ft tenancy by the entirety stood in its stead; and the doctrine alone, unconnected with any general body of rules, and all cases that might have been governed by it were readily referable to the rules governing tenaney in common. In like manner, with the statute of uses removed, we had a complete statutory system of conveyancing, and in the absence of the statute of charitable uses, there were still the general equitable powers of the court of chan- cery existing anterior to that statute. But while in those cases a single rule, part of no general system of modern application, was rejected, here the rules assailed are results of a general doc- trine and part of a complete system, and to overthrow them would leave the whole body of the law of waters unsettled and confused. The subject calls for legislative, not for judicial, action. PowrLL vy. Brannon, Supreme Courr or Mrssissrppi, 1852 (24 Miss. 343, 362). | Yerger, J.: The argument has frequently been urged, by those who assign a feudal origin to the rule, that inasmuch as the feudal system has been abolished, the reason for the rule has ceased ; and, therefore, the rule itself should be abrogated. However cogent this argument may be when addressed to the legislature, yet courtsof justice cannot so far recognize its potency as to make it the basis of their decisions. Whe never a principle of the common law has been once clearly and unquestionably recognized and estab lished, the courts of the country must enforce it, until it be re pealed by the legislature, as lone as there is a subject-matter for the prineipl to Operate upon ; anc this, too, although the reason In the Opinion of the court, whie Induced 1S original establish ment, May have ceased to exist. 4b Is we & neelv tO be the estab lished doctrine of the courts of this country, in everv State w the princi] le S ot the common la \ pre \ all. W EG It otherwise. rules ot law would bx as fluctuating and unsett] d as the opinions I of the different judge s administering them might happen to diffex in relation to the existence of sufficient and valid reasons for main- taining’ and upholding th mM. W] atever may have | en the orig’ inal reason for the common la rule, that a | oal title t real es tate can only be conveyed by deed sealed and delivered. or what ever reason may have existed originally for the distinction hi tween sealed and unsealed instruments and contracts, it would ] be difficult to assign any other at this day for their maintenance than the tact that they are loi o and well settled rules or the com mon law. Th same remark may be predic: ted of man other fixed and positive regulations of the common law, whose validity no one disputes or controverts. And hence it is, that the courts of every State in the Union, where the common law constitutes a part of their judicial system, governed by such considerations, have declared the existe nee of the rule in S] elley’s case, and have entorced it as rigorously as any other well settled ] rinciple of that law; and we are of opinion, that in common with the other prin ule constitutes a part of the judi ciples of the common law, that r system of this State, and must be enforced. unless it has been Cla repealed by some statutory provision. Vina v. Grrarp, Supreme Courr or tue Untrep States. 1844 (2 How, 1277). Story, J.: . . . It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania. But this proposition is to be received with its appropriate qualifications, and in connection with the bill of rights of that State, as found in its Constitution of Government. The Constitution of 1790 (and the like provision will, in substance, be found in the Constitution320 Tk COMMON LAW IN AMERICA y vo of 1776. and in the existing Constitution of 1838) expressly de- clares. “That all men have worship Almighty God accordin sciences: no man can of right be compelled to attend, erect, or a natural and indefeasible right to OF LO the dictates of their own con- support any place of worship, or to maintain any ministry against . human authority can, in any case whatever, con- his consent; no trol or interfere with the rights of conscience ; and no preference shall ever be given by law to any religious establishments or modes of worship.” Language more comprehensive for the complete protection of every variety of religious opinion could scarcely be used: and it must have been intended to ext nd equally to all sects, whether they believed in Christianity or not, and .whether they were Jews or infidels. So that we are compelled to admit that although Christianity be a part of the common law of the State, yet it is so in this qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or 1e doctrine of the Supreme the injury of the public. Such was t Court of Pennsylvania in Updegraff v. Th Commonwealth (A1 Serge. & Rawle, 394). Bioom v. RICHARDS, SUPREME Court oF Onto, 1853 (2 Ohio St. 387). Thurman, J.: . . . But were it otherwise, were such a con- tract void by the common law of England, it would not necessarily follow that it is void in Ohio. The English common law, so far as it is reasonable in itself, suitable to the condition and business of our people, and consistent with the letter and spirit of our fed- eral and state constitutions and statutes, has been and is followed by our courts, and may be said to constitute a part of the common law of Ohio. But wherever it has been found wanting in either of these requisites, our courts have not hesitated to modify it to suit our circumstances, or if necessary, to wholly depart from it. Lessee of Lindsley v. Coates, 1 Ohio, 243: O. C. 116. Christian- ity, then, being part of the common law of England, there was some, though an insufficient, foundation for the saying of Chief Justice Best above quoted. But the Constitution of Ohio having declared “that all men have natural and indefeasible right to worship Almighty God according to the dictates of conscience ; that no human authority can, in any case whatever, control orES AND interfere with the rights of conscience: that no man shall be eoin- pelled to attend, erect, or support any place of worship, or t maintain any ministry, against his consent: and that no prefer ence shall ever be given, by law, to any religious society, or li of worship, and no religious test shall b required, as a qualifiea tion to any office of trust or profit,” it follows that neither Chri tianity, nor any other system of religion, is a part of the this state. We sometimes hear It said that all religi A erated in Ohio: but the expression is not strictly aecurate—much less accurate is it tO Say, that one religion is a part ot our law, 1] ] ] = ] : and all others only tolerated: lt is not by mere tol ration th it every individual here is protected in his belief or disbelief. He reposes not upon the leniency of government, or the liberality of any class or sect of men, but upon his natural indefeasible rights of conscience, which, in the laneuage of the constitution, are hr yond the control or interference of any human authority. We have no union of church and state, nor has our gsovernm: nt ever been vested with authority to enforce any reli ifious observance. *simply because it is religious. ZEISWEISS v. JAMES, SUPREME CourRT or P} NNSYLVANIA, 1870 (63: Ba St. 465). The will in question contained the following provision: ‘“]m- ) mediately atter the death Oot both my sald orand-nieces, then it is my will that my real estate aforesaid shall go to and be held in fee simple by the Infidel Soci: ty in Philadelphia, hereafter to be incorporated, and to be held and disposed ot by them for the purpose of building a hall for the free discussion of religion. poli- ties, ete.” Sharswood, J. (after holding this invalid on other grounds) said: In placing the decision on this ground, however. it must not be understood that l mean to concede that a devise for such a purpose as was evidently contemplated by this testator, even if a competent trustee had been named, would be sustained as a valid charitable use in this state. These endowments originated in England, at a period when the religious sentiment was strong. and their tendency was to run into superstition. In modern times the danger is of the opposite extreme of licentiousness. It is nec- essary that they should be carefully guarded from either, and preserved in that happy mean between both, which will most 2]322 THE COMMON LAW IN AMERIC# conduce to the true interests of society. Established principles o accomplish this. Charity is love to God will enable the courts and love to our neighbor; the fulfilment of the two great com- mandments upon which hang all the law and the prophets. The esessions of man are faith, hope, charity, these J ps ereatest of these is charity. Love worketh no ill most invaluabl three: but the to his neighbor: therefore love is the fulfilling of the law. It is the fountain and source whence flow all good works beneficial to the souls or bodies of men. It is not easy to see how these are to be promoted by the dissemination of infidelity, which robs men of faith and hope, if not of charity also. It is unnecessary here to discuss the question, under what limitations the principle is to be admitted that Christianity is part of the common law of Penn- sylvania. By the third section of the ninth article of the Con- stitution it is indeed declared “that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences: that no man can ot right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or ‘nterfere with the rights of conscience; and no: preference shall ever be given by law to any religious establishments or modes of worship.” It is in entire consistency with this sacred guarantee of the rights of conscience and religious liberty to hold that, even if Christianity 1s no part of the law of the land, it is the popular religion of the country, an insult to which would be indictable as directly tending to dis- turb the public peace. The laws and institutions of this state are built on the foundation of reverence for Christianity. To this ex- tent, at least, it must certainly be considered as well settled that the religion revealed in the Bible is not to be openly reviled, ridiculed or blasphem« d to the annoy ance ot sincere believers who compose the great mass of the good people of the Commonwealth : Updegraph v. The Commonwealth, 11 S. & R. 394; Vidal v. Girard’s Executors, 2 Howard (U. S.) 198. I can conceive of nothing so likely—so sure, indeed, to produce these consequences, as a hall desecrated in perpetuity for the free discussion of religion, polities et cetera, under the direction and administration of a so- ciety of infidels. Indeed, I would go further, and adopt the senti- ment and language of Mr. Justice Dunean in the ease just referred to: “It would prove a nursery of yice, a school of preparation toSOUR ~ ES AND FORMS ad qualify young men for the gallows and young women for the brothel, and ther is not a sceptic ot decent Manners and ood morals who would hot consider such a debating’ club as a common ] nuisance and disgrace to the city.” Judgment affirmed. Biackstone, Commenvartss, I. 82 84, Besides thes pontifical collections,! which. during the times of popery, were received as authentic in this island. as well] as in other parts of Christendom, there is also a kind of national canon law, composed of | eatine and | rovinecial constitutions. and adapted only to the eX] 0% neles ot this | urech and kine lom. The lega tine constitutions were ecclesiastical laws, enacted in national synods held under the cardinals Otho and Othobon, legates from pope Gregory IX. and pope Clement IV. in the relon Henry III., about the years 1220 and 1268. The provincial con- L ot king stitutions are principally the decrees of provincial synods, held I i ‘ under divers archbishops of Cant rbury, from Stephen Lan in the relen ot He nr Pi to [lenry Chichele. in the rel Henry V.; and adopted also by the province of York in ot Henry Vale At the dawn of the Re formation. in t] e rel King Henry VIII., it was enacted in parliament that a should be had of the canon law: and till such review should ] made, al] canons, constitutions, ordinances. and synodals provin- cial, being then already made, and not repugnant to the law of the land or the kino”’s prerogative, should still be usec and exe euted. And, as no such review has yet been perfected, upon t} 1s statute now depends the authority of the canon law in England. As for the canons enacted by the clergy under James TI. in the year 1603, and never confirmed in parliament, it has been solemn ly adjudged upon the principles of law and the constitution. that where they are not merely d claratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity, whatever regard the clergy may think proper to pay them. There are four species of courts in which the civil and canon laws are permitted, under different restrictions, to be used: 1. The courts of the archbishops and bishops, and their derivative officers usually called in our law courts Christian, curiae Christianttatis, or the ecclesiastical courts. 2. The military courts. 3. The courts 1 They are briefly noted above, p. 68.324 THE COMMON LAW IN AMERICA of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that recep- tion, are grounded entirely upon customs corroborated in the lat ter instance by act of parliament, ratifying those charters which f tl The more minute confirm the customary law of the universities. consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will few particulars relative to them all, which may serve to inculeate more strongly the doctrine laid down suffice at present to remark a concerning them. 1. And. first, the courts of common law have the superintend- ency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess. and in case of contumacy, to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal. 9. The common law has reserved to itself the exposition of all such acts of parliament as concern either the extent of these courts, or the matters depending before them. And therefore, if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king’s courts at Westminster will grant prohibi- tions to restrain and control them. 3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own. And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some eases by custom in some courts, are only subordinate, and leqges sub graviort lege; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a dis- tinet independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the kine’s ecclesiastical, the king’s military, the king’s maritime, or the king’s academical laws. Crump v. Morcan, SupREME Court or Nortu Carorina, 1843 (3 Ired. Hq. 91). Ruffin, J.: . . . Again it was said, that these are the adjudi-eations of the ecclesiastical courts, and are founded, not on the 1 common law, but on the canon and civil laws, and therefore not entitled to respect here. But it is an entire mistake to say, that the canon and elvil laws, as administ I'¢ d in the oa lesiastical courts of England are not parts of the common lay Judee Blackstonc f( Lliow1lneg Lord Ha Classes tht WmMong ney ritten lay S70 Eneland and as parts « the common \ hich, b uston ( idopted ind used in pec ir Jurisdictions | Be Gome 19 [ s iste @ome ib 2ie 32. <0) were broug lere by our ancestors as part of the common law, and have been a ypte d and used here in all cases to which they were applicable, and whenever been a tribunal exercising a jurisdiction to call for their use. Thev govern testamentary causes and matrimonial causes. Probate and reprobate ot wills stand upon the same grounds here as in Eno land, unl SS SO far as Statutes may have alter { tee Dir j NSO V. Stewart, 1 Murpk. 99; Ward v. Vickers, 2 Hayw. (N. C.) 164; Redmond v. Collins, 4 Dev. 430 oi Am. Weer ZOSNr Divoree causes fall within the Same category. Le Barron v. Le Barron, SuPREME Court oF VERMONT, 1862 (35 Vt. 365). Poland, Un. Je This is a petition by the wite for a sentence of nullity ot marriage, for the alle Lg’ d physical Impot nee ot the hus band. At the last stated session of the court in Washington county the petitioner filed a motion for the appointment of a commissioner or referee, to inquire and report as to the allegation of the de- t¢ ndant’s impotence - and that the def ndant be re quired to answer interrogatories touching said allegation; and also to submit to a personal examination by medical men, under the superintend- ence and direction of such commissioner. So far as the motion prays that the de fendant be compelled to answer inte rrogatori Se ita) ahs or to be examined by physicians, the defendant resists being the first time within our knowledge that an application ot this character has been made in this state, and only three mem- bers of the court being present, it was deemed advisable tO hold the matter under advisement until the present term, to obtain the opinion of the whole court. The objection to the motion is based upon this ground: that the whole jurisdiction and power of the court over the subject of grant-| . 326 TIIE COMMON LAW IN AMERICA ] € ‘neo divorces and annulling marriages, is given by statute; that the court has no power except such as the statute conters; and that. as the statute does not give the court t such an examination, therefore it does not possess 1t. If this be f the court —that he power to require the true view of the jurisdiction and power 0 By they can only exercise such powers as are expressly given by stat- ate—then the objection of the defendant must be sustained, and the motion denied. To enable us to determine this question, 1t becomes necessary to examine into the real source and extent of the jurisdiction ot the court over this subject. The legal power to annui marriages has been recognized as ex- SN aoc Se Rd ne isting in England from a very early period, but its administration, ee instead of being committed to the common law courts, was exer- cised by their spiritual or ecclesiastical courts. Under the admin- istration of those courts, for a long period of time, the principles and practice governing this head of their jurisdiction, ripened into a settled course and body of jurisprudence, like that of the courts of chancery and admiralty, and constituted, with those systems, a part of the general law of the realm, and in the broad and en- lareed use of the term, a part of the common law of the land, and was so held by the courts of that country. This country having been settled by colonies from that, under the eeneral authority of its government, and remaining for many years a part of its dominion, became and remained subject and entitled to the eeneral laws of the government, and they became equally the laws of this country, except as far as they were in- applicable to the new relation and condition of things. This we understand to be well settled, both by judicial decision and the authority of eminent law writers. But if this were not so, the adoption of the common law of England, by the legislature of the state, was an adoption of the whole body of the law of that coun- try (aside from their parliamentary legislation) and ineluded those principles of law administered by the courts of chancery and admiralty, and the ecclesiastical courts (so far as the same were applicable to our local situation and circumstances, and not re- pugnant to our constitution and laws) as well as that portion of their laws administered by the ordinary and common tribunals. As the jurisdiction in England was exclusively committed to the spiritual courts, and had never been exercised by the ordinarySOURCES AND FORMS aw courts, the same could not be exercised by the courts of law in this country, until it was vested in them by the law-making power. \s we have never had any ecclesiastical courts in this country, who « ld execute this braneh of th law, it was 1n ab Vance until ] | some tribunal was properly clothed with jurisdiction over it, or rested in the legislature. It was probably on this ground that the legislatures of the states proceeded in granting divorces, as many Ol them did, in rormer times. \Vhen the lecislat res establish a tribunal to exerels this yurisdiction, or invest it 1n any of the already established courts, su +h tribunal b¢ t is their duty, to exereise it, aceordineg to the ceneral prin iples ot the common law of the subject, and the practice of the English courts, so far as they are suited to our condition and the general spirit of our laws, or are modified or limited by our statut su h has been he ld to be the effect of a creation of a court of hancery, or olving ( juity jurisdi tion eithe r total or partial, tO a court ot law, by the le ojislature. Such hurisdi tion is to be exe] eised according to the general principles and practice of the chan- ccry courts of the mother country. Che nit rm and 3 ttled pracrice the ecel siast eal eourts of England, in this class of cases; is to require a medical examination, anc to compel the party to s ibmit to it, if tarily. Norton v. Seton, 1 Ene. Eee. Rep. 384; Briggs v. Morgan, Id. tQOS, In the last case, Lord Stowell states the reason and 1e will not do so volun- foundation of the rule: ‘It has been said that the means resorted to for proof on these occasions, are offensive to natural modesty; but nature has provided no other means, and we must be under all relief shall be denied, or of apply- the necessity of saying that ryt ine the means within our power. The court must not sacrifice Justice to n tions ot delicacy of its ) Upon authority and reason, we are clearly satisfied that the power exists in the court to compel such examination, although the statute does not provide for it. Nasu v. Harrrneton, Scrreme Court or VeErmont, 1826 (2 Aiken. 9)). Hutchinson, J.: . . . Weare driven, then, to the question, | Regt] ony ie a tee Ce a328 THE COMMON LAW IN AMERICA will the court here adopt the rules of the law merchant, touching the necessity of demand upon the maker, and notice back to the indorser, in order to charge him, as the same are known in Eng- land? The court see no reason why they should not, where the circumstances of the parties do not render them inapplicable. Where the law in Eneland requires notice to be elven back on the ties of demand and notice back are the same here. there is no reason why the rule should not be the same. The Rear same day, 1f the facili law merchant is a part of the common law of England, and as such is ado} ted by statute here, so far as it is applicable to our local situation and circumstances, and is not repugnant to the constitu- tion, or any act of the legislature of this state. And so far, the courts of this state are bound to recognize it. Tur Paqurre Hapana, SuPREME Court oF THE UNITED STATES, LOO Giton Ur Ss Gi): Gray, J.: . . . International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this pur- pose, where there is no treaty and no controlling executive or legis- lative act Yr judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors con- cerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U. S. 113, 163, 164, 214, 215. PaTTEeRsoNn vy. WINN, SuPREME Court or TuE Unrrep States, Sle (omlmeetaoo) Story, J.: . . . We think it clear that by the common law, as held for a long period, an exemplification of a public grant under the great seal is admissible in evidence as being record proof of as high a nature as the original. It is a recognition in the most solemn form by the government itself of the validity of its own grant, under its own seal, and imports absolute verity as matter of record.SOURCES AND FORMS 329 The authorities eited at the bar fully sustain this doctrine. There Was, 1n former times, a Ut chnieal distinction existing on this Ai subj ct which deservi S notice. As e\ icle nee, such ext mplifications lly deemed admissible. of letters patent seem to have been genera But whe re, 1n pli adine, a pro rt was made of the letters patent, there, upon the principles of pleading, the original under the great seal was required to be produced: for a profert could not be of any copy or exem] lification. It was to cure this diffieu lty that the stat- utes of 3 Edw. VI.. ch. 4. and 13 Eliz., ch. 6, were passed, by which patentees and all claiming under th Im were ¢ nabled to make title in pleading by showing forth an exemplification of the letters patent, as if the original were pleaded and set forth. These stat- utes being passed before the emigration of our ancestors. being applicable to our situation, and in amendment of the law. consti- tute a part of our common law. SPAULDING vy. Cuicaco & N. W. R. Co.. Supren Wisconsin, 1872 (30 Wis. 111). ~ Dixon, C. J.: That the statute 6 Anne, ec. 3. 6. enacted in 1707, with the interpretation heretofore supposed to have been given to it in England in the time of Blackstone and before, is in force as part of the common law of this state, was assumed by this court in the ease of Kellogg Vie The Chi Lgo and Northwest rn Railway Company, 26 Wis. 223, 267, 272. As will be seen by the reference, the words of that statute. “in whose house or chamber any fire shall accidentally begin,” had been construed as if the statute read, “in whose house or chamber any fire shall negligently begin,” thus exempting from liability, as Blackstone says, for the loss or damage sustained by oth« rs, the owner yr occupant through : . 1 ] 1 ~ whose negligence or through the negligence or carelessness of whose servants the fire was set, his own loss being’ re oarded as sufficient punishment for such negligence. That statute, with the construction si said to have been put upon it in England, at and lone before the time ot our revolution, has no doubt fer rally been considered as constituting a part of the common law of this state as it probably has of all or nearly all of the other states of the Union. It was, as we have every reason to think, so looked upon as part of the law of the colonies before the revolution and during the period of their dependence upon the laws and consti- tutions of Great Britain.Te 330 THE COMMON LAW IN AMERICA But with respect to the other British statute upon which re- liance is placed by the railway company here, and which was also enacted before the revolution, namely, the statute 14 Geo. [aa c. 78. sec. 86, enacted in 1774, which enlarged the operation of the oo statute of Anne, bY a claring ever, shall be had, maintained or prosecuted against any person “that no action, suit or process what- in whi se house, chamber, stable, barn or other building, Copy Copal : : ; i i ; tate any fire shall after the said twenty-fourth day of 1 whose June a cidentally bee in, nor shall any recompense be made by such person for any damage suffered thi reby,” it 1s more tha doubtful whether any effect can be given to it as a part of the common law of this country. The rule fixing the period of our revolution as the time from which the English statutes and acts of parliament shall be considered as part ot the common law ot this country, or that those statutes enacted before that time and which were adapted to our condition and circumstances as a peo- ple, shall be so considered, is a general one adopted for con- venience merely, and which should govern in the generality of ut not one intended to apply always and to all cases or to Gass, all statutes which may have been so enacted, without regard to any other facts or circumstances. The fundamental idea repre- sented by the rule and upon which it is based is, that those stat- utes which were so enacted and which were suited to the condi- tion and circumstances of our colonial ancestors, had been received, acted upon and ratified by them as part of the jurisprudence and laws of the colonies before the separation from the mother country, and which, upon the separation, the colonists took with them as the still continuing law, except where subsequently repealed or modi- fied by positive legislative enactment. This view of the reasons and grounds of the rule would seem to exclude the statute im ques- tion from the operation of it, since the same was enacted on the very eve of the revolution, and at a time when we know our ances- tors, in their colonial state, could not have become familiar with, or have ratified or adopted it, and at a time, too, when, as history shows, all or nearly all respect for British sovereignty and British laws or acts of parliament then being passed, was well nigh extinet throughout the colonies. That our ancestors did not, and could not have adopted and acted upon this statute as part of their laws before their independence, is, therefore, very certain. [!t is cer- tain from a consideration of the time and circumstances underRCES AND FORMS Ooi which the statute was enacted, and also from a consideration of the law as we-know it to have been constantl, understood and ministered in this country since the revolution. As to the statute of Anne, we know that it, with the construction previously sup posed to have been put upon it, has been generally understood and : ] 4 . 1 { } 1 ° regarded as constituting a rule of our cOmmon law. becaus It nas ] - < : 1 veen expr ssly SO ad] agved 1n some cases. and DeCGCALISE n | the history and records of our judicial proceedings there exists not a precedent, under circumstances where there might have been thou sands, of an action or recovery contrary to the provisions of that SU¢ ute as the Same 1S To nave be ll 1d stood in | o'| id ] +] ] 1 } . 1 1 and was doubtless understood i olonies before the revolution TOOK place But as to 1 S sf | fon (;eo [1] the } storv of oul ae 3 oat laW SHOWS ele irs ‘ Le a the possibilit O 1 Stl aoubdt, that it never has en so understood or applied | e courts of this country. Che cases are most numerous, and to bD rouns In the courts ot almost every state ot the Union, as well as in the F¢ le ral courts, \ he r actlons have peen lalnta ned ( recoveries had against proprietors and occupants, on whose land or estate i i fires have been negligent] set, or negligently permitted to begin Ol spread So aS to extend ) and co uM or Cause 10Nn]U CO the property ot othe cS; In such cases lit has been invaria ty held that the negligent party is answerable in damage for the losses of third persons so caused and sustained Kreitz v. BEnuRENSMEYER, SUPREME CourRT or ILLINoIs. 1894 (149 ie Oke Phillips, J this state d elaring’ the rights of a di Ure otheer to recover from a .: . . . It is conceded that no statute exists in de facto otheer the salary paid such de tacto othcer, who has dis charged the duties of the office under a wrongful or mistaken pur- pose. The re 1S no lemislation on that subject in this state. Che right of recovery, if it exists, depends, therefore, on th principles of the common law. The common law is a system d of general judicial declarations of principles, which yf elementary rules ai are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, in- ventions, and the exigencies and usages of the country. Judicial decisions of common-law courts are the most authoritative evi- dence of what constitutes the common law. By chapter 28, Starr332 THE COMMON LAW IN AMERICA © & QO. Stat. Ill., the common law of England is declared in force in this state. By reference to the decisions of the common-law courts of England, the common law of that country is to be found. An examination of the decisions of the courts of that country shows a uniform declaration of the principle that a de jure ofticer has a right of action to recover against an officer de facto by rea- son of the intrusion of the latter into his office, and his receipt of the emoluments thereof. Among others, the following opinions of English courts may be referred to as sustaining this right of recovery: Vaux v. Jefferen, 2 Dyer, 114; Arris v. Stukely, 2 Mod. 260: Lee v. Drake, 2 Salk. 468; Webb’s Case, 8 Coke, ‘45. By the adoption of the common law of England, the principle an- nounced in these cases was adopted as the law of this state, for the principle is of a general nature, and applicable to our constitution. On the basis of a sound public policy, the principle commends it- self. for the reason that one would be less liable to usurp or wrong” fully retain a public office, and defeat the will of the people or the appointing power, as loss would result from wrongful reten- tion or usurpation of an office. The question has frequently been before the courts of the different states and of the United States, and the great weight of authority sustains the doctrine of the common law, as shown by the opinions of the judges in different states: and in most of the states these are based on the common law, without reference to any statute. Carucarr v. Roprnson, SuPREME Court or THE UNITED STATES, 1831 (5 Pet. 264). Marshall, C. J.: . . . This being a voluntary conveyance, is, at this day, held by the courts of England to be absolutely void under the statute of 27 Elizabeth, against a subsequent purchaser, even although he purchased with notice. (1 Mad. Ch. 271, 18 Ves. 110: 2 Taunton, 523.) Their decisions do not maintain that a transaction valid at the time is rendered invalid by the subsequent act of the party. They do not maintain that the character of the transaction is changed, but that testimony afterwards furnished may prove its real character. The subsequent sale of the property is carried back to the deed of settlement, and considered as prov- ing that deed to have been executed with a fraudulent intent to de- ceive a subsequent purchaser. The statute of Elizabeth is in force in this district. The ruleSOURCES AND FORMS which has been uniformly observed by this court in construing statutes is to adopt the construction made by the courts of the country by whose Legislature the statute was enacted. This rule may be susceptible of some modification, when applied to British statutes which are adopted in any of these States. By adopting them they becom our OWN Aas ¢ ntirely as if they had been enact dl by the Legislature of the State. The received construction in Eneland at the time th ry are admitt d to operate in this country leed, to the time of our separation from the British empir 11 may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But however we may respect subsequent decisions, and e rtainly they are en titled to great respect, we do not admit their absolute authority. If the English courts vary their construction of a statute which is common to the two countries, we do not hold ourselves bound to fluctuate with them. At the commencement of the American Revolution the con- struction of the statute of 27 Elizabeth seems not to have been set- tled. The leaning of the courts towards the opinion that ev ry voluntary settlement would be deemed void as to a subsequent pur chaser was very strong, and few cases are to be found in which such conveyance has be en sustain d. But the Se decisions seem to have been made on the principle that such subsequent sale fur nished a strong presumption of a fraudulent intent, which threw on the person claiming under the settlement the burden of proving it from the settlement itself, or from extrinsic circumstances, to be made in good faith, rather than as furnishing conclusive evidence not to be repelled by any circumstances whatever. There is some contrariety and some ambiguity in the old cases on the subject; but this court conceives that the modern decisions establishing the absolute conclusiveness of a subsequent sale to fix fraud on a family settlement, made without valuable consideration —fraud not to be repelled by any circumstances whatever—go be- yond the construction which prevailed at the American Revolu- tion, and ought not to be followed. The universally received doctrine of that day unquestionably went as far as this. A subsequent sale, without notice, by a per- son who had made a settlement not on valuable consideration, was presumptive evidence of fraud, which threw on those claiming un- der such settlement the burden of proving that it was made bonaSoa THE COMMON LAW IN AMERICA fide. This principle, therefore, according to the uniform course of this court, must be adopted in construing the statute of 27 Eliza- beth as 11 applies to this case. 378, 390 (1835), Harper, J., pf In Fable v. Brown, 2 Hill. Eq. says: With respect to the civil law, however enlightened and admirable a system of jurisprudence it maj be, it is not our law, nor have our courts any authority to declare it so. Our lecislature has adopted another system of laws. Where our law is obscure or doubtful, it is frequently of great ainine or determining if, more especially as a great portion that source. But if the common law be » 1 i utility in ex] of our law was derived from clear. we are not authorized to depart from it because the provisions of another system may be better and more suited to our circumstances; nor “fit be defective, are Courts authorized to supply the deficiency by draw- ine from a foreign source.t Tucker v. St. Louis Lire Ins. Co., SUPREME COURT OF Mis- souRI, 1876 (63 Mo. 588). Sherwood, Ji 2 The code is not suticiently comprehen- sive to embrace every varied phase which a case may assume betore reaching judicial determination, and in consequence of this, resort must be frequently had to common law methods of procedure, both in ordinary actions at law, as well as in proceedings looking merely to equitable relief. Numerous decisions of this court exemplify this. This being the case, and the code not prescribing the method to be pursued where a defendant asks affirmative relief from a co- defendant, except that a judgment giving affirmative relief may be rendered in such cases (Waen. Stat. 1051, 2) we must look to a certain extent to the rules of pleading and practice adopted by courts of chancery. Marimewson v. Puornrx Iron Founpry, Unirep States Cir- curr Court. District of Rhode Island, 1884 (20 Fed. Rep. Ao). Colt, J.: . . . But it is said that common-law marriages were never considered valid in Rhode Island. The question has not been passed upon by the state court. The argument is based 10Qn the influence of the civil law upon our present law, see Pound, the Influence of French Law in America, 3 Ill. Law Rev. 354; Wiel, Waters: American Law and French Authority, 33 Harvard Law Rev. Say,AND FORMS 4] 1 ] eat es | 2 - 47 upon the history of legisiation upon the subject, and especially ! . I ; upon th older Statutes Che earliest Statut relating [ narriag”g was passed at the first session « the general ssembls held 2 I>] ] ] . 7 ~ le e ] ] . in Khode Island, in 1647, and it pr vided that no other marriages 1 7 1 7 . : should De held awtul except thi se contracted according tO the {° ” ] 4 4 ) 1 rOrm of tne st ues Phe act declares: ‘No contract or agreement betw naman and woman to owne ] 1 ech othe as mal (i tes all Pe OV ed tl m | neeto! h { out he ho colol as a aw il) Oo ) th dy lor ? " C217" ] Le issue so coming together to i1eo'ltlmate or la vViullie bee ten, Dut } ‘ | e , { 4 | [ea ] such aS are 1n the rst place with the parents, then orderly pub lished in two severall meetings of the townsmen, and lastly con- firmed betfo » the head ofticer of the to Ne and entered into the towne el rk’s bo [hen follows a penalty against those going contrary to the “‘pres- ent ordinance.” 1 Col: Ree. 187. By act of March 17, 1656, parties ere required to publish their intention of marriage, and objection to such marriage might be heard before two magistrates, when, if disallowed, it was referred to the “seneral court of tryalls.”’ ld 330: The act of Mav 3. 1665, after condemning the loose observance of the statute of 164 é lers that act and subseque nt acts to be punctually observed. an | inflicts an additio ial penalty ot 1 nica- tion on persons who should presume to marry otherwise, or live together as man and wife. The act then proceeds expressly to val- idate the relations of all such then living within the colony “that are reputed to live together as man and wife by the common obser- 2 Col. Ree. LOA. vation or account ot the ye neighborhood By the act of 1701 it was ordered that all marriages take place after due publication of intentions, ete., and a fine was imposed on otheers presuming’ t« join persons in marriage without such pub- lication exe pting those married according to the laws, customs and ceremonies of the church of England and Quakers. The exception was afterwards extended to Jews. This act was entitled, “‘“An act for preventing clandestine marriages,” and this same title we find in the several subsequent revisions of the statutes until the revi- sion of 1857. 3 Col. Rec. 435: Pub. Laws, 1663 1/45, p. 30; Digest of 1767, pp. 172-175. By act of December, 1733, settled ministers and elders of every denomination were authorized to join persons in marriage afterTHE COMMON LAW IN AMERICA 336 due publication and upon receiving certificate. They were re- quired to keep and return to the town clerk a record thereof for registry, and a fine was imposed upon them for marrying without t Col. Ree. p. 490; Pub. Laws, 1663-1745, p. 176. | ney publication. It is claimed that these enactments are controlling, and that + show that common-law marriages were never recognized in Rhode Island. The common law has always existed in Rhode Island, except so far as modified or changed by statute. This is true of marriage, as well as other subjects. The legislature may have seen fit in early times to do away entirely with the common law, and to make marriage illegal unless it conformed to the statutory regulations. But if the legislature had at any time repealed all statutes on the subjects, the common law would have been revived. And. in so far as the legislature has seen fit to change the statute, to make it less restrictive by not declaring all other marriages 1l- Ieoal, as in the earliest enactments, in so far it has restored the common-law right. If, upon a proper construction of the statute ‘n force, we find the common-law right is not denied, then it still exists, though it may not have existed under former and different statutes. Unless the statute under consideration, upon a proper construction, prohibits marriages per verba de pracsenti, we do not think we should, by implication derived from old statutes, de- cide against their validity. To make marriages void and children illegitimate, by implication, is a serious thing. Because, under earlier statutes, a marriage not made in conformity therewith, may have been invalid, we do not feel warranted in implying that such is the proper interpretation of the statute of 1809/7. We think it safer to hold that in modifying the terms of the statute, the legislature intended to modify the law; and, as we have before said, our conclusion is that the statute of 1857 does not make a marriage per verba de praesenti, or at common law, void; this being the construction put upon similar statutes in most of the states, and in the Supreme Court of the United States. Unrrep Srates v. ARrEpoNDO, SuPpREME Courr or THE UNITED Sraprms, 1832 (6 Pet. 691). Baldwin, J.: . . . There is another source of law in all gov- ernments—usage, custom, which is always presumed to be adopted with the consent of those who have been affected by it. In Eng- land, and in the States of this Union which have no ‘written consti-AND FORMS 337 SOURCES tution, it is the supreme law: always de emed to have had its origin i an act of a State Legislature of competent power to make valid and binding, or an act of Parliament; which, representing all the inhabitants of the kinedom, acts with the consent of al ex ercises the power of all, and its acts become binding by the au ] thority of all. Co. Inst. 58; Wills, 116.) So it is considered in the States an by this COVET (a) Dall. LOO: yy Peters. 6056. A general custom is a general law, and forms the law of a con- tract on the subject-matter; though at variance with its terms, it enters into and controls its stipulations as an act of Parliament or State Legislature. The court not only may, but are bound to no- tice and respect usage « id general customs as the law of the land equally with the written law, and, when clearly proved, they will control the general law; this necessarily follows from its presumed orligin—an act of Parliament or a legislative act. Such would be our duty under the second section of the Act of 1824, though its usages and customs ere not € xpressly named as a part ot the laws or ordinances of Spain. The first section of that act, giving the 1 right to claimants of land under titles derived from Spain to in- stitute this proceeding for the purpose of ascertaining their valid- ity and jurisdiction to the court to hear and determine all claims to land which were protected and secured by the treaty, and which might have been perfected into a legal title under and in eon- formity tO the laws. usages ancl eustoms ot Spain, makes a claim founded on them one of the cases expressly provided for. We can- not impute to Coneress the intention to not only authorize this court, but to require it to take jurisdiction of such a case, and to hear and determine such a claim according to the principles of justice; by such a solemn mockery of it as would be evinced by excluding from our consideration usages and customs (which are the law of every government) for no other reason than that, in he second section, Con referring to the laws and ordinances in t eress had not enumerated all the kinds of laws and ordinances by which we should decide whether the elaim would be valid if the province had remained under the dominion of Spain. We might as well exelude a royal order because it was not called a law. We should act on the same principle if the words of the second section were less explicit, and according to the rule established in Hender- son v. Poindexter, 12 Wheat. 530, 540. 99338 THE COMMON LAW Kine v. Epwarps, SUPREME Court or Montana, 1870 (1 Mont. 92 Haye) Knowles, J.: The mining customs of any particular mining district have the foree and ettect of laws, or, 1n other words, are laws. The local courts in each one of the States and Territories, Jlacer mining is prosecuted to any extent, have so recog- em, and finally, Congress, by an act in July, 1866, recog- 1ese rules and customs as law. The title to mineral lands is vested in the United States. Any citizen of the United States, or any person who has declared his intention to become such, may, by complying with the local rules and customs of any district, become vested with the right to possess and mine any specific portion of mining ground. The customs vhich point out the manner of locating mining ground are condi- tions precedent. A substantial compliance with them is necessary. The right to possess and mine any mining claim is derived trom the United States by virtue of this compliance. The United States is divested of this right as effectually as if these rules and customs were acts of Congress, for they now are the American common law on mining for precious metals. JENNISON v. KirK,. SUPREME Court oF THE UNITED STATES, Lies (COS We os 455% 456)r Field, J.: The object of the section was to give the sanction of the United States, the proprietor of the lands, to possessory rights, which had previously rested solely upon the local customs, laws, and decisions of the courts, and to prevent such rights from being: lost ona sale ot the lands. The section is to be read in con- nection with other provisions of the act of which it is a part, and in the light of matters of public history relating to the mineral lands of the United States. The discov« ry of eold in California was followed, as is well known, by an immense immigration into the State, which increased its population within three or four years from a few thousand to several hundred thousand. The lands in which the precious metals were found belonged to the United States, and were unsurveyed, and not open, by law, to occupation and settlement. Little was known of them further than that they were situated in the Sierra Nevada mountains. Into these moun- tains the emigrants in vast numbers penetrated, occupying the11 ° 7 ; e : + : . are the prominent characteristies of our people. In every district which ther pied ther r : - , - WhO1ehn hey occupied they framed certain rules for their govern ment, by which the extent of ground they could severally hold for : B 2 1 } 1 5 1 1 : mining’ was dadeslonater their possessory rignt to such ground si cured and entoreed, c nd contests betwee} them either avoid l or determined. These rules bore a marked similarity, varving in th veral district It sPlia ] : { ] } : several districts only according to the extent and character ot mines list net pr VISIONS D Oo made fo} ditt rent Kinds ort mi} 1 B ] Ine? such as piacer 1 ning juart min al cl mM no in ad [ts 1 y , > ; 1 or tunnels. Phe l l c ed discovery LOL ed DY appl I Sighs ; . ; : priation, as the foundation of the p ssor’s title, and d« 1 : oS ment by working’ as the condition of its retentiodn. And ther ere so framed as to secure to all comers, withu practicabl Imits, a solute equality of right and privilege in working the mines. Not 1 1 1 1 . ing but such equality would have been tolerated by the miners, who wert emphatically the law makers, as respects ml 9, upon | the public lands in the State. The first appropriator was every- where held to have, within ec rtain well-d fined limits, a better right than others to the claims tak en up, and ln all controvel ies except as against the government, he was regarded as the original owner, from whom title was to be traced. But the mines could not be worked without water. Without water the gold would re main forever buried in the earth or rock. To carry water to min- . 1 =F Da 2 : J — localities, when they were not on the banks OL a stream or if lake, became, therefore, an important and necessary business in carrying on mining. Here, also, the first appropriator of water to be conveyed to such localities for mining or other beneficial purposes, was recognized as having, to the extent of actual use, the better right. The doctrines of the common law respecting the rights of riparian owners were not considered as applicable, or only in a very limited degree, to the condition of miners in the mountains. The waters of rivers and lakes were consequently earried great distances in ditehes and flumes, constructed with vast labor and enormous expenditures of money, along the sides of mountains and through cafions and ravines, to supply communi- ties engaged in mining, as well as for agriculturists and ordinary340 TIE COMMON LAW IN AMERICA consumption. Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of these ditches and flumes, and the protection of rights to water, not only between different appropriators, but between them and the holders 4 of mining claims. These regulations and customs were appealed ' to in controvcrsies 1n to the value of many millions rested upon them. the State courts, and received their sanction 5 and properties For eighteen years—from 1848 to 1566- the regulations and customs of miners, as enforced and moulded by the courts and sanctioned by the legislation of the State, constituted the law gov- erning property in mines and in water on the public mineral lands. Until 1866, no legislation was had looking to a sale of the mineral lands. The policy of the country had pr viously been, as shown by the legislation of Congress, to exempt such lands from sale. In that year the act, the ninth section of which we have quoted, was passed. In the first section it was declared that the mineral lands of the United States were free and open to exploration and occupa- tion by citizens of the United States, and those who had declared t their intention to become citizens, subject to such regulations as might be prescribed by law and the local customs or rules of miners in the several mining districts, so far as the same were not in con- flict with the laws of the United States. In other sections it pro- vided for acquiring the title of the United States to claims in veins or lodes of quartz bearing gold, silver, cinnabar, or copper, the possessory right to which had been previously acquired under the customs and rules of miners. In no provision of the act was any intention manifested to interfere with the possessory rights previ- ously acquired, or which might be afterwards aequired ; the inten- tion expressed was to secure them by a patent from the govern- ment. The senator of Nevada, Hon. William M. Stewart, the au- thor of the act, in advocating its passage in the Senate, spoke in high praise of the regulations and customs of miners, and por- trayed in glowing language the wonderful results that had fol- lowed the system of free mining which had prevailed with the tacit consent of the government. The legislature of California, he said, had wisely declared that the rules and regulations of min- } ers should be received in evidence in all controversies respecting mining claims, and, when not in conflict with the Constitution or laws of the State or of the United States, should govern their de- termination: and a series of wise judicial decisions had mouldedSOURCES AND FORMS 341 these regulations and customs into “a comprehensive system of common law, embracing not only mining law, properly speaking, but also regulating the use of water for mining purposes.” The miner’s law, he added, was a part of the miner’s nature. He had made it, and he trusted it and obeyed it. He had civen the hon- est toil ot his life to diseove r wealth. which, when found, Was pro tected by no higher law than that enacted by himself, under the implied sanction of a just and generous fFovernment, And the act proposed continued the system of free mining, holding the mineral lands open to exploration and occupation, subject to legis- lation by Congress and to local rules. It merely recognized the oblization ot the vrovernment to respect private rights which had grown up under its tacit consent and approval. It proposed no new system, but sanctioned, regulated, and confirmed a system al- | were attached. Cone. ready established. tO which the peo} Globe, 1st Sess. 39th Cone... part 11 1e r, Pp. 3225-3228, These statements of the author of the act in advocating its aclop- tion cannot, of course, control its construction. where there is doubt as to its meaning; but they show the condition of mining property on the public lands of the United States, and the tenure by which it was held by miners in the absence of legislation on the subject, and thus serve to indicate the probable intention of Con gress in the passage of the act. Whilst acknowledging the general wisdom of the regulations of miners, as sanctioned by the State and moulded by its courts, and seeking to give title to possessions acquired under them, it must have oceurred to the author, as it did to others, that it the title ot the United States was conveyed to the holders of mining claims, the right of way of owners of ditches and canals across the claims, although then recognized by the local customs, laws, and decisions, would be thereby destroyed, unless secured by the act. And it was for the purpose of securing rights to water, and rights of way over the public lands to convey it, which were thus recognized, that the ninth section was adopted, and not to grant rights of way where they were not previously recognized by the customary law of miners. The section purported in its first clause only to protect rights to the use of water for mining, manufacturing, or other beneficial purposes, acquired by priority ot possession, when LeG= veal customs, laws, and decisions of the courts: ognized by the | and the second clause, declaring that the right of way for the con-342 THE COMMON LAW IN AMERICA struction of ditches and canals to carry water tor those purposes ‘is acknowledged and confirmed,” cannot be construed as con- ferring a right of way independent of;such customary law, but only as acknowledging and confirming such right as that law gave. the section conferred no additional rights upon the The proviso I owners of ditches subsequently constructed ; it simply rendered them liable to parties on the public domain whos possessions might be injured by such construction. In other words, the Unit- ed States by the section said, that, whenever rights to the use of water by priority of possession had become vested, and were recog- nized by the local customs, laws, and decisions of the courts, the owners and possessors should’ be protected in them ; and that the right of way for'ditches and canats incident to such water-rights, being recognized in the same manner, should be ‘‘acknowledged and: confirmed ;”’ but where ditches subsequently constructed im- jured by therr construction the possessions of others on the public domain. the owners of such ditches should be liable for the injuries sustained. Any other construction would be inconsistent with the general purposes of the act, which, as already stated, was to give the sanction of the government to possessory rights acquired under the local eustoms, laws, and decisions of the courts. BLACKSTONE, ComMeENTARIES, I, 76. When a custom? is actually proved to exist, the next inquiry is into the legality of it; for, if it is not a good custom, it ought to be no longer used. “Malus usus abolendus est’ is an established maxim of the law. To make a particular custom oood, the fol- lowing are necessary requisites: 1. That it have been used so long, that the memory of man run- neth not to the contrary. So that, if any one can show the begin- ning of it, it is no good custom. For which reason no custom can prevail against an express act of parliament, since the statute itself is a proof of a time when such a custom did not exist. 2. It must have been continued. Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which 1Gray, Nature and Sources of Law, chap, XII; Austin, Jurisprudence (3 ed.) 103 ff; Salmond, Jurisprudence, §§ 42-43, 46-48; Holland, Jurispru- dence, chap. V, Subdiv. I; Clark, Practical Jurisprudence, 324-3 34. See also Carter, Law, Its Origin, Growth and Function, 18, 24, 118 ff., 158, 241 i; Vinogradoff, Custom and Right.will be within tim: void. But this mu of a parish have Ce rtain pool, Lone @ it for ten years: it richt be anyhow di common consent, th they must not be vard Coke says, t son, but of artificial ai law. Upon which ticular reason of Je oral reasol October. Wi uld be reason why that day day before or aft till the lord ot the theref re bad: fo] 1 1 and then the o. Customs ought ] ae seend to the most shall this worth be determined ? male of the blood, exclusive 2001 l. but to pay sometimes two occupier of the land plec sé tom, to pay a year’s improved value for a fine on a copyhol tate, is e0od: thouel may at any time certum est, quod certum reddi potest. 6. Customs, thoueh established by tablished) compulsory; and not left to the option of every man, FORMS yr otherwise, is a proof t. Customs must tenants W il] lose al of females A custom to pay lereupon the eust +] 7 ] Nn regard to an stom. As if the inl waterins y _ ii thoi oh they do ult TO pro the custom 18 qi lL aequiesc 1] I Is ms owe thnell 7 1 ally disputed Tt sent was wanting } . } Is no } S ‘ every unlearned n 1 warrantec b aul 1a 1) YOOd, uc LOY ] Su cethi | 1US a ¢ Olt) 1! ; I { rig 7 ould be hard ¢ ; } ixed upon, ratl } ral lat No LLtLeE SU in his, is unreasonable, ] = 1] een lord will never pu I their profits. ] A eustom, that lan >» owner’s blood, is void: for h ‘ustom to deseencl L¢ is certain, and 1 acre in lieu of tith S, sometimes three-pence, as the is bad for its uncertainty. Yet a ens and the maxim of law consent, must be (when es-344 THE COMMON LAW IN AMERICA whether he will use them or no. Therefore a custom, that all the snhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all. Lastly, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent; which to say of contradictory customs is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another’s garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom. Leacn v. Perxins, Supreme Court or Marne, 1840 (17 Me. 162 ). Shepley, J.: The rights of parties are to be determined by law, and not by any local custom or usage, unless there be proof, that such custom or usage is certain, general, frequent, and so an- cient as to be generally known and acted upon. In such cases, if the courts adjudge it to be reasonable, it affects the right of the parties upon the presumption, that they have made their contract with reference to it. 3 Wash. C. CO. 149; 8 Serge. & R. 539: The usages of trade in a particular city or place, are thus received to explain the intention of the parties, and to ascertain their rights under a contract presumed to be made with reference to them : 2 Bos. & Pul. 432: 3 Id. 23; 7 Mass. 36; 3 Wend. 283. The usage of trade has also been admitted to explain what the parties intended by the use of a doubtful word or phrase, or term of art, in a policy of insurance, bill of lading, and deed: 7 Johns. 385; 8 Sere. & R. 535; 6 Greenl. 154. And in a particular profession, art, or branch of trade, as among printers: 1 8. C. Const. 308; 3 Greenl. 276. And among carriers: 2 Nott & M. 9; 3 Day, 346; 3 Conn. 9. And in the lumber trade: 6 Greenl. 200. The usages of banks in certain cities and places have been received upon the presumption that the parties contracted with reference to them : 11 Mass. 85; 9 Wheat. 581. So has a custom in certain places, that a tenant should take “the way-going crop:” 5 Binn. 287; or receive compensation for labor for the benefit of the forthcomingcrop: l Brod. Ww B. 1 4 ] 7 has been received ti expiall ine a contract, and tl But custom does not appear ° J : Went Or to prove the become respec nsibl t A speaking of the admis fOvernment tT public money, exclu such a purpose, rei ( stablishine the ric'nt, and the manner in whicl [he case of Thoms ae regarded in the areu eC rroborative pro f O the case 1t 1s statecd, th; n ioht serve in some mM parties, or to si opinion of the court and the principle ups oe ; ; IS 1n accordance wit guage of the court is, “usage the act of the owners, that act amounted ti UC Hc The customs or which have existed in ot man runneth not to t as the rules ot the comn , or an appointment of a m Many other eases, usacr ort the p eS 11 mi: I 1 7 Ct pon ti r rants received tO ¢ S} ne hn DY which tl parties laaiivah ST1e | nso the cley l Cc he a a | ] " ] -£ CL mignt pe recelved tor ot ror the purpose of asure Of compensation 7 ) i Pet LD ) p ] l d | LC} 125 Nhas peen rect Dt Nm ¢ usage as + | ] tract in tine report oO} the jury, that ‘‘usage as the Inte T mm ot the ae cou In evidence to explain to ¢ nable the jury to det rmine whether Leas ] illuded to are not those customs 1 » or country so lone, that the memory ao contrary, and which, when established become a part of it ; but are such as are To be established by the prool ot the facts showing branch of business. as in other cases, what are, under thi the parties. And it 1S be the leval rights of the parties arising O prove by witnesses the law of the contract Whether a usage is proved, is « micdueting ; ; the accustomed mode of | ness, or in other words, is proved, the law « ‘irecumstances, the rights of 10 more competent oa eertain trade or : : ¥ : : r conducting the busi letermines, to prove what would of such usage, than to in any other ease. ‘t for the jury to find: 2 Gill & J. 136. But it would be the duty of the court to instruct them that, if it Was not proved TO be ce ‘tain and general, and to partake346 THR COMMON LAW IN AMERICA of the other requisites, before stated, that the testimony should have no influence upon the rights of the parties. The custom as stated in this bill of exceptions is presented rather as a mode agreed upon among the parties interested to build vessels. than as a well established method of actually conducting the process of building: and proot was admitted, ‘‘that the owners were not jointly responsible for materials and labor for the vessel, and that no one was authorized to make contracts for materials and labor, ete., for the vessel, so as to bind the owners generally,” ap- parently as part of the proof of the custom. It is alleged in argu- ment, that testimony to prove not only the custom but its legal ef- fect upon the rights of the parties, was not in fact admitted, but the language used does not appear to be susceptible of any other construction. It may be that upon a new trial the facts in rela- tion to the manner of building in the place where the vessel was built, will be so fully proved as to establish a usage with all the necessary requisites to authorize the presumption, that these par- ties contracted with reference to it; but as it is presented in this bill of exceptions, the evidence should not have been admitted. If the plaintiff fails in establishing any usage, he may prove that the parties building the vessel agreed among themselves, as ‘e of and in obe- stated, that his contract was made with a knowledg dience to such agreement, and thus be entitled to recover. Nor is there any necessity, as the argument supposes, that such a mode of building vessels should be abandoned if the usage fails, for the parties may accomplish the object of relieving themselves from responsibility for the whole of the materials and labor by an agree- ment to that effect among themselves, and by taking care to make it known to each one with whom a contract is made, so as to have proof that he contracted with a knowledge that he must rely only upon the person with whom he contracted. [exceptions sustained and new trial granted. TREMBLE V. CROWELL, SUPREME Court or Micniean, 1869 (17 Mich. 493). Graves, J.: The defendants in error sued Tremble in the court below, in assumpsit, and sought to recover from him certain money which they alleged they had paid him for a quantity of fish he had sold to them, and which had proved to have been unsound and valueless. The declaration contained the common and moneySOURCES AND FORMS counts, and also a special count in which the defendants in error alleged in the usual manner that the plaintiff in error warranted the fish to be good, sound, and fit for the market. The plaintiffs below, after olving evidence to show that they were wholesale fish dc alers at Toledo, in the state of Ohio, and pur- chased of the defendant, who was a fisherman at Bay City, and paid therefor, about $1500 worth of fish. of which, on their arrival at Toledo, some sixty-eight half barrels were found to be spoiled and valueless, offered evidence to prove that there was a settled unitorm usage, that und ra contract for the sale ot fish for cash, unc where there was no express warranty if the fish or any portion 1 of them proved to be unsound, the vendor should be liable to pay back to the purchaser the money paid for such unsound fish, and the « vidence was admitted under ob}. ction. Subsequently the elreult judge, in sub nittine the ease to the jury, instructed them that if they should find such a settled uni- form usage 1t was valid, and that, by virtue the reof, the plaintiffs ould be entitled to recover the money paid for the unsound fish, unless the parties made a contract exeludir the operation of such usage: and to this direction the defendant 12, by its very terms. pted. I These objections present the main questions in the case. bel W exce [t will be observed that the usage relied on would, if established. place the dealers in fish in Bay City and vicinity, in a position very different from that held by persons in the same business in other parts of the state; and would tacitly annex to all contracts there made for the sale of fish, unless expressly excluded by the contract itself. a stipulation which would tend, inevitably, to supersede all ofticial as well as private inspection; and would pre seribe a specific redress in ease of the sale of “tainted” or ‘‘dam- aged” fish, entirely different from that marked out by the statute. Would such a usage be a reasonable one if conclusively proved ? It appears to me that it would not. The legislature have thoueht proper to provide for a system ot public inspection of various articles, and among them the article of fish; and have made numerous and precise regulations on that subject: 1 Comp. L., p. 386; also, 392 to 394. They have provided for the election of inspectors; have required them to make inspection when desired so to do; have specified the manner in which it should be done, have provided that the fishd45 THE COMMON LAW IN AMERICA inspected should be designated by the inspector as number “one, lity, and have required the inspectors to or “two,” a cording to qua ‘state the quantity, quality, and report annually to the secretary 01 kinds inspected during the year. They have also provided that, 1f any person shall sell, within the state, or export, or cause to be exported therefrom, any tainted or otherwise damaged fish, unless with the intent that the same shall be used for some other purpose than as food, he shall forfeit $10 for every one hundred pounds of such fish; and that upon the trial, the burden of proof shall be upon the vendor to show for what purpose such fish were sold or exported. By another section they have declared that it shall not be oblig- atory upon any one to have fish inspected; but that all contracts for the sale of fish shall be deemed made with reference to those provisions of the statute regulating the quality, quantity, and other descriptions, unless the parties otherwise expressly agree: Comp. L., § 1286. Although the statute is not imperative on the subject of inspec- tion, the penal provision against the sale of “tainted” or damaged fish is so: and the whole act is plainly expressive of a legislative purpose to provide the system of reeulations for the trade, which the legislature deemed the best. Whether the usage in question would directly and necessarily conflict with any of these statutory reoulations need not be determined, since in my opinion the usage cannot be sustained if found to be inconsistent with the policy or spirit of the statute. It appears to me to be a part of the policy of the law in question to encourage the practice of official inspection and discourage a contrary course, to regulate the traffic in fish in the manner most likely to insure fairness between dealers, and maintain everywhere the reputation of a most important branch of the commerce ot the state. As the supposed usage assumes that the article is purchased without the safeguard of inspection, and that the buyer will be saved from loss on a purchase of uninspected fish by the right viven him by the usage to recover of the vendor the price actually paid; the effect of the usage must be to cause dealers to dispense with inspection, and pave the way for those consequences which the law was designed to avert; and, at the same time, to defeat the desirable objects which the legislature intended to promote.349 Without attempting to contrast the usage with sions, I think there ean be n ] prac tice alt specific provi o doubt but that it would introduce a ogether at variance with the spirit a ain policy of the Inspection laws; and that if it were accepted as binding. it would to render those laws nugatory, and to supersede in her by responsible public « this opinion, I think that usage in qui stion ag : a and that 1t co 10 basis for a recoy This conclusion, if correct, makes it unnecessary to consider the other questions in the ease. I think the judgment of the court below should be rev¢ rsed W ith costs. The other justices concurred.CHAPTER V COURTS: THEIR ORGANIZATION AND JURISDICTION 1. SELF-HELP Bracxstonr, Commenranrigs, ITI, 2, 15. The more effectually to accomplish the redress of private in- juries, courts of justice are instituted im every eivilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined and wrongs prohibited. This remedy is therefore principally to be sought by application to these courts of justice ; that is, by civil suit or action. For which reason our chief employment in this book will be to consider the redress of private wrongs by suit or action in courts. But as there are certain injuries of such a nature that some of them furnish and others require a more speedy remedy than can be had in the ordinary forms of justice, there 1s allowed in those cases an extrajudicial or eccentrical kind ot remedy; of which I shall first of all treat, before I consider the several remedies by suit: and, to that end, shall distribute the redress of private wrongs into three several species: first, that which is obtained by the mere act of the parties themselves ; second- ly, that which is effected by the mere act and operation ot law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law. And first, of that redress of private injuries which is obtained by the mere act of the parties. This is of two sorts: first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order. Of the first sort, or that which arises from the sole act of the injured party, is I. The defense of one’s self, or the mutual and reciprocal de- fense of such as stand in the relations of husband and wife, parent 350SELI HELP and child. master and SErvant. In these eases, if the party him self, or any of the S his relations. be forcibly attack« cd in his p Ss or property it is lawful for him to repel foree by force: and breach of the peace which happens is chargeable upon him ONLY who be an the affray. For the law in this case respects the pas- sions of the human mind, and (when ext rnal violence is offered to a man himself, or those to whom he bears a ni re ( nec 1 makes it lawful in him to do himself that immediate justice which he is prompt d by nature, and vhich no prude ntial motive S are strong enough to restrain: It considers that the future process of law is by no means an adequate remedy fo) uries accon panied with force: since it is impossible to say to what wanton leneths of rapine or cruelty outrages of this sort might be carried unless it we re p rmitt la man imn liate Ly tO oppose ¢ violence with another. Self-defense, therefore as it is justly called the pri- mary law of nature, so it is not. neither can it be, in fact, taken away by the law ot SOGICLY. In the Enelish law pi rtieul; rly it is held an excuse for breaches of the peace. n y, even for homicid its. lf: but care must be taken that th resistances does hot excee the bounds of mere defense and prevention: for then the d fender would himself become an aggressor. [ole Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath all deprived another of his property in goods or chattels person: \W rongfully di tains one’s \ ife, ehild, or servant: in w hich ease the owner of the goods, and the husband, parent, or master, may lay fully claim and retake them wherever he happens to find them, so 1t be not in a riotous manner, or attended with a breach ot the peace. The reason for this is obvious; since it may frequently happen that the Owner may ave this only opportunity of doing himself justice : his eoods may be afterwards conveyed away or destroyed; and his wife, children or servants concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain posses- sion of his property again without force or terror, the law favors and will justify his proceeding. But as the public peace is a superior consideration to any one man’s private property; and as, 1f individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strone would give law to the weak, and every man would revert toSoe Ep ET SER R 352 COURTS: ORGANIZATION AND JURISDICTION state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justity breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen ; but must have recourse to an action at law. III. As recaption is a remedy given to the party himself for an injury to his personal property, so, thirdly, a remedy of the same kind for injuries to real property is by entry on lands and tenements when another person without any right has taken posses- sion thereof. This depends in some measure on like reasons with the former; and like that, too, must be peaceable and without force. There is some nicety required to define and distinguish the eases in which such entry is lawful or otherwise; it will therefore be more fully considered in a subsequent chapter; being only mentioned in this place for the sake of regularity and order. IV. A fourth species of remedy by the mere act of the party injured is the abatement or removal of nuisances. What nuisances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions. At present, [ shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nuisance; and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it. If a house or wall is erected so near to mine that it stops my ancient lights, which is a private nuisance, I may enter my neighbor’s land and peaceably pull it down. Or if a new gate be erected across the public high- way, which is a common nuisance, any of the king’s subjects pass- ine that way may cut it down and destroy it. And the reason why the law allows this private and summary method of doing one’s self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice. V. A fifth ease in which the law allows a man to be his own avenger, or to minister redress to himself, is that of distrainingSELF-HELP cattle or goods for the non-payment of rent, or other duti ULES OF distraining another’s cattle damage-feasant. that is. doine damage or trespassing upon his land. The former intended for the benefit of landlords. to prevent tenants from secreting or withdrawing their effects to his prejudice ; the latte sé rising trom the necessity ; : ‘J : eee ee of the thing itself, as it might otherwise be impossible at a futur time to ascertain whose eattle they wert that committed the tres- pass or damage. Ne The S 1Z1Ine of h riots, whi n due on the death of a ] is also another species Ol self remedy, not much ul like that LILK Ct OF takine eattle or eoods in distr SS. As for that division of heriots which is ealled heriot-si rvice, and is ONLY a Species of rent, the d nay distrain for this as well as seize; but for heriot-custom (which Sir Edward Coke says lies only in prender, and not in render) the lord may seize the identical thine itself. but cannot distrain any other chattel tor it. The like spec ly and ( fT ¢ etual remedy of seizing is given with regard to many things that are said to lie in franchise; as waifs, wrecks, estrays, deodands, and the li which the person entitled the reto may selz process of a suit or action. Not that they are d barred ot remedy by action; but have also the other and more speedy one for the better assertine their property; the thing to be claimed being frequently of such a nature as might be out of the reach of the law before any action could be brought. Bower vy. E:preper, Supreme Court or Errors or Connecti cur, 1846 (18 Conn. 1). Williams, C. J.: . . . The 4th plea rests upon very different considerations. The defendants do not, in that, rely upon a decree or order, the correctness of which cannot be examined; but they say, the facts which exist will justify the acts they have done; and they offer to prove these facts before the e Uurt. They say, this vessel was in the legal custody and possession of an officer of the United States, by virtue of legal process, and had been wrongfully taken out of his possession; and he therefore had a right to repossess himself of it; and this he did throueh the defendants, who acted as his servants and agents, and by his authority. The plaintiff, on the other hand, contends, that if this354 COURTS: ORGANIZATION AND JURISDICTION this property by force out of his were so, they had no right to take and must there possession ; that it was in custody of the law, remain until taken out by legal process. Tt is not claimed that any foree was used by the defendants, but such as is implied in every wrongful act of trespass. The words vi et armis imply nothing more. 8 Burr. 1701, 1731. The ques- tion then arises, whether, if this property has been illegally taken from the custody of the defendant, he may repossess himself of it. As to real estate, there cannot be a doubt that at common law, if the owner has been dispossessed, he might, within a reasonable time, if he could prevail By fair means, enter by force and take possession of his own estate. 1 Hawk. Pl. Cr. ch. 64, p. 274. 13 Vin. Ab. 380. Litt. 25 IT, n. 1. Hyatt v. Wood, 4 Johns. R. 150. Ives v. Ives, 18 Johns. R. 937. And although, to prevent breaches of the peace, and the oppression of the weak bv the power- yet even at this day, ful. forcible entries are by statute restrained, » ‘f a tenant hold over, and the landlord takes possession by force and strong hand, so that he may be indicted for a forcibl Taunton v. Costar, 7 landlord e entry, the tenant cannot treat him as a trespasser. Term R. 431. -And in a more recent case, where the | house with a crowbar, after his tenant’s being in, and only some of the tenant’s furniture remaining, he was justified in an action of trespass brought by the tenant against him. Turner v. Meymott, 1 Bing, 15S (B 1a, CG, Ik, VEO), Auach mm is said, by a highly respectable the force may not be justifiable; t he party broke open the doors of the lease hs a expired, no person writer on common law, may be answerable for a breach of the peace or a foreible entry ; but not in an action of iespass; to a party in the wrongful posse S- sion; for the possession is a sufficient eround to sustain an a ‘tion of trespass against a wrongdoer. It is othe rWw1se, whe mn the person entering shows a legal title. Read’s case, 6 Rep. 24, 2 Saund. 47, e. Hyatt v. Wood, 4 Johns. R. 158; 1 Johns. R. 44.. Amd it is said, by the author of the commentaries, that where one is deprived of his property in goods or chattels personal, or where one’s wife, child or servant is wrongfully detained, the owner, husband, parent or master may lawfully claim and retake them, wherever he happens to find ihem: 3 Bla, Com: 4, 1 Swe Diea eG: And a writer on criminal law, of high authority, says, “It seems certain, that even at this day, he who is wrongfully disy yossessed of his eoods, may justify the retaking of them by force, ee the wrong-SELF-HELP doer, if he refuses to redeliver them: for. the violence which happens through the resistance of the wroneful possessor, being originally owing to his own fault. vives him no just cause of com- plaint, inasmuch as he might have prevented it by doine as he ouchina le Hawk. Pl. Or 274, ch. 64. Blackstone and other commentators very properly say, that this may be done, provided it be not done in a riotous manner. and not attended with a breach of the peace. They do not, howevs r, by this mean, that if a husband reclaims his wife. or a parent his child, or an owner his goods, he will, for such act. be liable an action of trespass to the wrong-doer; though he might be answerable for a breach of the peace. Hawkins explains this more fully than the other authors above cited, when speaking of forcible entry; for, says he, however he may be punished at the king’s suit, for doine what is prohibited by statute, as a contemner of the law and disturber of the peace, he shall not be liable to pay any damages for it to the plaintiff, whose injustice gave him the provocation in that manner to right himself. Ch. 64, sect. 2. And in Lee v. A thinson, Cro. Jac. 236; S. C., Yelv. 172. where the owner of a horse let it for two days, and finding that the person who hired it was going another way than that for which he hired the horse, by force retook the horse within the two days; it was held that he was not Justified, not because he might not have right to retake his own, but he had parted with the possession for those two days; thus recognizing the right of recapture, though not under such circum- stances. So, too, if a distress is taken without cause, or contrary to law, before it is impounded: the party may rescue it. Co. Litt. 160-1, 3 Bla. co 12. Cotsworth v. Betison, 1 Ld. Raym. 104; pS? C2 1 Salk It is said, ie. ver, that this property was in e ustody of the law; and, therefore, the defendants had no rig it to reclaim it in this way. That must de ‘pend upon the other question, whether it was lawfully detained by the officer; for if not, his official character could not give him, as against him who had a prior claim, a right. His process, though good as against the party, would not give him a right to take the goods of a third person, or the goods of this person, out of the lawful possession of another. This court has decided that a person committed to prison under: an illegal process was not accountable, in a publie prosecution, for freeing anes lf from that imprisonment, even by a breach of the356 COURTS; ORGANIZATION AND JURISDICTION peace. And we are of opinion that the marshal of New York, having the legal custody ont his property had a right to repossess himself of it when in the hand of this plaintiff. We, therefore, are of opinion that the {th plea is sufficient; and so we advise the superior court. In this opinion the other judges concurred. Gopncer v. McGowEN, SUPREME COURT OF New York, 1835 13 Wend. 256). Error from the Tompkins C. P. Spencer sued M’Gowen and Shepard, in an action of trespass for the taking of a horse, which had been delivered to him Nov. 3, 1830, as the plaintiff in a writ Carter. The plaintiff further ot replevin issued against one had been pu with other proved that the horse in question by Carter, to one M’Cormick, to secure iad Ae mn assigned to property, he payment of a certain sum of money; that the mortgage | him, the plaintiff; that it had become forfeited; and that by an award of arbitrators, made in pursuance of a submission between him and Carter, he had a len upon the horse. ‘The defense set up on the trial was, that Carter was a tenant of one Bloodgood, and that previous to the issuing of the writ of replevin, to wit : Oct, 25. 1830, the horse in question was té aken, with other property, for rent, by M’Gowen as the bailiff of the landlord. stor of the property, and it was left on the premises. The horse having subsequently been delivered by the sheriff to Spencer, by virtue of the i of replevin, Shepard took the horse from Spencer’s a le. and delivered him to M’ Gowen, 1e distress warrant. The jury, under the charge of the court, ha a verdict for the defendants, on which judgment was entered. The plaintiff having excepted to the charge of the court, sue .l out a writ of error. By the Court, Sutl herland, J.: It is contended by t sn error, that under the Act in relation to the Action of Replevin ... the defendants were bound to have de- their title to the horse, before 13th as a distre SS Shep: ard was the receip who sold him by virtue ot t he plaintiff R. Si 525. see. 13, etc manded a jury from the sheruf to try they could summarily regain the possession of him. The section provides, that if the de fondant in the action of replevin, he goods and or any other person who may be in possession of t claim property therein or 1 chattels specified in the writ, shall thereof, and he may give notice to the sheriff ¢ any part thereof,SELF-HELP demand a jury to try his title. The 14th and 15th sections reculate the mode of proceeding. The 16th section provides that if the jury find against the title it the claimant, the sheriff shall forthwith make deliverance to the plaintiff in replevin. The 17th enacts that if the jury find in favor of the claimant, the sheriff shall not deliver the property to the plaintiff in replevin, unless he will in- demnify him to his satisfaction, and refund to the claimant the fees of the sheriff and jury in trying the title. ‘These provisions are designed rather for the security and benefit of the sheriff than laiming the property; for although the jury may of the party ¢ find in favor of the title of the claimant, the sheriff may still and perhaps must deliver the property to the plaintiff in replevin, if he will indemnify him. Th person claiming title to the prop- CIty IS not prohibited by these provisions from taking Any othe r course to try or entorce his right, which upon general principles he might have done before this Act was passi d. [f the property of A is in the possession of B, and is taken under an execution or a writ of replevin against B, if A can peace- ably obtain the possession of it, and can establish his title, the plaintiff in the execution or replevin cannot maintain trespass against him. A man is never a trespasser in peaceably obtaining possession of his own property. Hyatt v. Wood, 3 Johns., 239; 4 Id. 150, 313. The defendants in this case had a special prop erty in the horse, by virtue of the proceedings under the land- lord’s warrant, when the replevin was served. ‘The replevin suit was not against them, but against the tenant. Moore y. Suenx, Supreme Court or Pennsytvanta, 1846 (3 Bak Stds)e Gibson, G: Asse ae eee But the direction that the property Was not revested in the defendant by his demand of it and offer to re- store Gs because he repossessed himself of it by foree, was wrong. Kach party had expressly reserved a right to put an end to the bargain by giving back what he had received under it. When, therefore, the defendant signified his determination to rescind, and tendered the animal with the money he had received, the parties were ipso facto remitted to their original rights. The remitter was so entire that the defendant could have maintained trover or re- plevin on the wagoner’s refusal to deliver. Was it disturbed or prevented by any act of force subsequently committed in regain-358 COURTS: ORGANIZATION AND JURISDICTION ing the possession pursuant to it? It is true that the right of re- caption cannot be pleaded in justification of violence. “If, for savs Sir William Blackstone (8 Com. 5), “my horse instance,” in a common, a faire, or a public is taken away, and I find him inn, | may lawfully seize him to my own use: but I cannot justity breaking open a private stable, or entering on the grounds of a third person to take him, but must have recourse to an action at law:” in other words, the right of recaption will not justify a collateral trespass committed in the prosecution of it. But recap- tion, being founded on a title already existing, is not an act neces- sary to revest the title, like an entry on land for a condition broken: but it is a remedy, like an action, to regain the possession by virtue of a title complete. If it were the former, an action could be maintained without at least an attempt at recaption precedent to it. . The defendant’s original title was restored by the tender, and no principle of the common law declares his illegal enforce- ment of it to be a forfeiture of it. Even a right of entry on land might have originally been enforced by violence, and possession thus gained be held with a strong hand (2 Comm. 148): it is only by special provision in the statutes of forcible entry and detainer, that a party deforced may have a writ of restitution. As regards chattels, the common law principle is unchang' d. Though the defendant could not have defended himself against an action of trespass for the force, he certainly can defend himself against an action for the property. Harvey v. DeWoopy, Supreme Court or ArKansas, 1856 (18 Ark. 252)). Hanly, J.: . . . The defense set up in the plea is a justifica- tion of the trespass complained of in the declaration. The facts upon which the justification is based are. in substance, thatethe town of Des Are was, by an act of the Assembly of this State, approved 28th December, 1854, incorporated : that, by said act, the corporate powers of said town were vested in one mayor and four councilmen, to be chosen in a certain manner—that five of the defendants were elected under the provisions of said charter, one as mayor, and the other four as councilmen—that at the same election, the remaining defendant, Robinson, was elected and chosen constable of said town: all strictly in conformity with the provisions of the act of incorporation—that all qualified in their359 SELF-HELP respective offices, and entered upon the discharge of the duties thereof- that, at a certain time named, it was ascertained that a certain tenement or house situate in said town. owned bv the plaintiff, had become a common or public nuisance, by endangering f the good eitizens of said town the property and health of many « by its exposed con lition, and lability to take fire, and because of the fact of its being used by the publie as a privy, ete.—that it was thought by them, in their official capacity, that the publie health and security to property in said town required and demand- ed that said house or tenement should be declared a public nui- sance, and be abated as such—that with this view they aver that ona certain day an | time in said plea named and stated, they met in their corporate capacity, as by law they had a right to do, and passed an ordinance declaring said house or tenement of the plain- tiff a public nuisance, and providing for its abatement by requiring the constable of said town, the defendant Robinson, to notify the plaintiff of the proceedings of the defendants as mayor and council of said town, touching said house or tenement, and inform him that should he not within thirty days next thereafter abate said nuisance by removing the cause thereof, that they in their official capacity, as mayor, council and constable, would abate the same by tearing down such house or tenement—that said defendant Robinson, as such constable, gave the required notice under said ordinance to said plaintiff—that more than thirty days elapsed after such notice was so given, and the cause of said nuisance being still unremoved or abated by said plaintiff, under the pro- visions of said ordinance the said defendant Robinson as constable proceeded to and did pull down and destroy said house or tene- ment, as the only means of abating said nuisance, and the plea avers that this is the same trespass of which the plaintiff complains in his declaration. Under this state of facts, which are admitted on the record, it may not be unprofitable, by way of illustrating our views, to an- nounce a few principles of law, which we regard as involved in this cause. A nuisance, in its common acceptation, means, literally, annoy- ance. In law its signification is more restricted. According to Blackstone, it means or signifies, “anything that worketh hurt, 2 inconvenience or damage.” See 3 Blacks. Com. 216.360 COURTS: ORGANIZATION AND JURISDICTION two kinds:—common or public, and private. Nuisances are of See Bae. Abr. 146. The first class is defined to be such an inconvenience or trouble- some offense as annoys the whole community, in eeneral, and not merely some particular person. See 1 Hawk. P. C. 187; 4 Blacks. Gone 16621. Wt is said’ to be difficult to define what = e of \ annoyance is necessary to constitute a nuisance. In relation to that when a trade renders the enjoyment of lite a nuisanee for the reason, trades, it seems or property uncomfortable, it becomes that the neighborhood have a right to have pure and fresh air. See 1 Burr. 333. 2 Car. & P. 485; 2 Lord. Raym. 1163. 1 Str. 686. The second class, or private nuisances, is anything done to the hurt or annoyance of the lands. tenements or hereditaments of another. See 3 Blacks. Com. 215. 5 Bae. Abr. 146. For a common or public nuisance, the usual remedy at law is by indictment. For a private nuisance the ordinary remedy at law. is case. See 3 Blacks. Com. @. 13 alOMiasss Russie Pick "6: 3 Harr. & McH. 441. Courts of chancery exercise jurisdiction both as to common yersons from setting or public, and private nuisances, by r straining ] them up, by inhibiting their continuance, or compelling their abatement. See 2 Story’s Kq., sec. 924, p. 260 As we have said, both courts of lon and equity afford ample redress, and sufficiently prompt remedies in case of nuisances. But it seems the law is not satisfied with these, as affording full protection to the public or citizen, in many eases, for it 1s generally conceded that any person may abate a public nuisance. See 2 Salk. 458. 5 Bac. Abr. 152. 3 Id. 468. And it seems that this right extends as well to private as to common or publie nuisances. See 5 Bac. Abr. mee sup. 2 eae Law. Dic., ae Deals: 2 Barn. & Oress. 311. 3 Dowl. & R. A public nuisance may be be ate al without notice (2 Salk. 458): and so may a private nuisance, which arises by an act of com- mission. And where the security of lives or property may re quire so speedy a remedy as not to allow time to eall on the person on whose property the mischief has arisen to remedy it, an indivi lual would be justified in abating a nuisance from omission without notice. 2 Barn. & Cress. 311. 3 Dowl. & R. 556, as above. As to private nuisances, it has been held, that if a man in his own soil erect a thing which is a nuisance to another, the partySELF-HELP 361 injured may enter the soil of the other and abate the nuisance, and justify the trespass. See 9 Mass. R. 316. 4 Conn. 418. 5 Id. 210. 4 N. H. R. 597. Distress for rent has been greatly modified or abolished by statute in most American jurisdictions. Distress of cattle damage feasant has also been modi.ied or regulated by statutes (commonly known as the Herd Law) in many jurisdictions, but is generally permitted. Entry and Seizure are now obsolete. BLACKSTONE, CommMENTARIEs, IIT, 18. The remedies for private wrongs which are effected by the mere operation of the law will fall within a very narrow compass; there Leing only two instances of this sort that at present occur to my recollection: the one that of re tain r, where a ereditor is made executor or administrator, to his debtor: the other in the case of what the law calls a remitter. [. If a person indebted to another makes his creditor or debtee his executor, or if such creditor obtains letters of administration TO his debtor ; in these cases the law olves him a remedy for his debt by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree. This is a remedy by the mere act of law, and grounded upon this reason: that the executor cannot, without an apparent absurdity, com- mence a suit against himself, as a representative of the deceased, to recover that which is due to him in his own private capacity: but, having the whole personal estate in his hands, so much as is suticient to answer his own demand is, by operation of law, ap- plied to that particular purpose. Else, by being made executor, he would be put in a worse condition than all the rest of the world besides. For though a ratable payment of all the debts of the de- ceased, in equal degree, is clearly the most equitable method, yet, as every scheme for a proportionable distribution of the assets among all the creditors hath been hitherto found to be impractica- ble, and productive of more mischiefs than it would remedy, so that the creditor who first commences his suit is entitled to a pref- erence in payment; it follows that, as the executor can commence no suit, he must be paid the last of any, and of course must lose his debt, in case the estate of his testator is insolvent, unless he be allowed to retain it. The doctrine of retainer is therefore the necessary consequence of that other doctrine of the law, the prior-2 COURTS: ORGANIZATION AND JURISDICTION of such creditor who first commences his action. But the executor shall not retain his own debt, in prejudice to those of a higher degree; for the law only puts him in the same situation as ‘£ he had sued himself as executor and recovered his debt; which he never could be supposed to have done while debts of a higher nature subsisted. Neither shall one executor be allowed to retain his own debt in prejudice to that of his co-executor in equal de- eree; but both shall be discharged in proportion. Nor shall an executor of his own wrong be in any case permitted to retain. II. Remitter is where he who hath the true property or jus pro- prietatis in lands, but is out of possession thereof, and hath no right to enter without recovering posse .ssion in an action, hath afterwards the freehold cast upon him by some subsequent, and of course defective, title: in this case he is remitted, or sent back by operation of law, to his ancient and more certain title. The right of entry, which he hath gained by a bad title, shall be zpso facto annexed to his own inherent good one: and his defeasible estate shall be utterly defeated, and annulled, by the instantaneous act of law, without his participation or consent. As if A. disseizes B., that is, turns him out of possession, and dies, leaving a son C.; hereby the estate descends to C., the son of A., and B. is barred from entering thereon till he proves his right in an action ; now, ‘f afterwards C., the heir of the disseizor, makes a lease for life to D., with remainder to B., the disseizee for life, and D. dies; hereby the remainder accrues to B., the disseizee: who, thus gain- ing a new freehold by virtue of the remainder, which is a bad title, is by act of law remitted, in of his former and surer estate. For he hath hereby gained a new right of possession, to which the law immediately annexes his ancient right of property. If the subsequent estate, or right ot possession, be gained by a man’s own act or consent, as by immediate purchase, being of full age, he shall not be remitted. For the taking such subsequent estate was his own folly, and shall be looked wpon as a waiver of his prior right. Therefore it is to be observed, that to every re- mitter there are regularly these incidents: an ancient right, and a new defeasible estate of freehold, uniting in one and the same person; which defeasible estate must be cast upon the tenant, not eained by his own act or folly. The reason given by Littleton, why this remedy, Ra operates silently, and by the rerenact Ot law, was allowed, is somewhat similar to that given in the preced-SELF-HELP 363 ing article: because otherw ise he who hath right would be deprived of all remedy. For, as he himself is a IM possession of the freehold, there is no other person against whom he can bring’ an action, to establish his prior right. An 4 for this cause the law doth adjudge him in by remitter: that is. in such plight as if he had lawfully recovered the same land by suit. For, as lord Bacon observes, the benignity of the law is such. as when, to preserve the prin iple S and erounds ot law, it depriveth a Man ot his x ¢ medy without his own fault, it wil] rather put him in a better deeree and condition than in a worse, Naim quod remedio de stituitur, ipsa re valet, si culpa absit. But there shall be no remitter to a right for which the party has no remedy by action: as if the issue in tail be barr d by the fine Or Warranty of his ancestors, and the frechold is afterwards east upon him, he shall not be remitted his estate-tail: for the operation of the remitter is exactly the same, after the union of the two rights, as that of a real action would have eee Ate it. As therefore the issue in tail could not by any action have recovered his ancient « tate, he shall not recover it by remitter. And thus much for these extrajudicial remedies, as well for real as personal injuries, which are furnished or permitted by the law, where the parties are so peculiarly cireumstanced as not to make it eligible or in some cases even possible, to apply for redress in the usual and ordinary methods to the courts of public justice. Remitter is now obsolete. 2. Courts In GENERAL! Brackstronr, Commenvartes, III, 22. The next, and principal, object of our inquiries is the redress of injuries by suit in courts: wherein the act of t the parties and the act of law co-operat ey the act of the ps irties bei Ing necessary to set the law in motion, and the process of the law being in general the only instrument by which the parties are enabled to procure a cer- tain and adequate redress. 10n the organization of courts in America, see Baldwin, The American Judi- clary, Chaps. VIII and IX; Morgan, Introduction to the Study of Law, 19- 26; American Judicature Soc iety, Bulletin VI (1914); Kales, A Comparative Study of the English and the Cook County Judicial Establishments, 4 Illinois Law Rey. 303; Pound, The Organization of Courts, 22 Philadelphia Legal Intelligencer, p. iy, tep. Minnesota State Bar Assn. (1914), 169.He 364 COURTS: ORGANIZATION AND JURISDICTION And here it will not be improper to observe, that although, in the several cases of redress by the act of the parties mentioned in pter, the law allows an extrajudicial remedy, yet that a former cha linary course of justice: but it is only an does not exclude the or 5 additional weapon put into the hands of ticular instances, where natural equity or stances of their situation required a more expeditious remedy than certain persons in par- the peculiar eireum- the formal process of any court of Judicature can furnish. There- fore, though I may defend myself, or relations, from external vio- lence, I yet am afterwards entitled to an action of assault and battery: though I may retake my eoods if I have a fair and peace- able opportunity, this power of recaption does not debar me from an action of trover or detinue: I may either enter on the lands on which I have a right of entry or may demand possession by a real action; I may either abate a nuisance by my own authority, or call upon the law to do it for me: I may distrain for rent, or have an action of debt, at my own option: if I do not distrain my neighbor’s cattle damage-feasant, I may compel him by action of trespass to make me a fair satisfaction: if a heriot, or a deodand, be withheld from me by fraud or force, I may recover it though I never seized it. And with regard to accords and arbitrations, these, in their nature being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redress : some other way; which is given up by such agreement. But as to remedies by the mere operation of law, those are indeed given, be- cause no remedy can be ministered by suit or action, without running into the palpable absurdity of a man’s bringing action against himself; the two cases wherein they happen being such wherein the only possible legal remedy would be directed against the very person himself who seeks relief. In all other eases it is a general and indisputable rule, that where there is a legal right there is also a legal remedy, by suit or action at law, whenever that right is invaded. And in treating of these remedies by suit in courts, I shall pursue the following method: first, I shall consider the nature and several species of courts of justice; and, secondly, I shall point out in which of these courts, ! and in what manner, the proper remedy may be had for any pri- rate injury; or, in other words, what injuries are copnizable, and how redressed, in each respective species of courts.COURTS IN GENERAL 365 First, then, of courts of justice. And herein we will consider, first, their nature and incidents in general; and then, the several specie S of them, ( rected and acknowledox d by the laws ot Eneland. A court is defined to be a place wherein Justice is judicially ad- ministered. And, as by our excellent constitution the sole execu- tive power of the laws is vested in the person of the king, it will follow that all courts of justice which are the medium by which he administers the laws are derived from the power of the crown. For. whether ereated by act ot parliament, or le tters patent, or subsist- e only methods by which any court of ing by prescription, (t] Judicature can exist,) the king’s consent in the two former is ex- pre ssly, and in the latter impli dly, olven. In all these courts the king is supposed in contemplation of law to be always present; but, as that is in fact impossible, he is there represented by his judges, whose power 1S only an emanation of the r yal prerogative. For the more speedy, universal, and impartial administration of justice between subject and subject, the law hath appointed a prodigious variety of courts, some with a more limited, others with a more extensive, jurisdiction; some constituted to inquire only, others to hear and determine; some to determine in the first instance, others upon appeal and by way of review. All these in their turns will be taken notice of in their respective places: and I shall therefore here only mention one distinction, that runs throughout them all, viz., that some of them are courts of record, others not of record. ~I t or the exercise of, his own judgment upon the propriety of the act being done. With respect to the scope of their jurisdiction, courts are | 1) of general jurisdiction, or (2) of special or limited jurisdiction. The former are usually called superior courts, the name borne by the three common-law courts to which they are analogous. Courts are also (1) of original jurisdiction, or (2) of appellate jurisdie- tion. A court’s jurisdiction is original when causes, or a certain eélass of causes, are brought there in the first instance: it is appellate when, having originated in some other court, they are brought to the court in question to obtain review of the order or judgment entered. Courts are often given both kinds of jurisdiction. Thus, the Supreme Court of the United States has original jurisdiction of controversies be- tween states of the Union, though its jurisdiction is chi fly appellate. Jurisdiction may be, also (1) exclusive or (2) concurrent. The juris- diction of a court is exclusive when controversies, or a class of controver- sies, must be taken before the court in question, and nowhere else; it is concurrent when they may be taken before the court in question or some other tribunal at the election of the parties plaintiff. Thus, the United States District Courts and the superior courts of general jurisdiction in each state have concurrent jurisdiction of actions at law or suits in equity in which a federal question is involved or there is a diversity of citizenship, the parties on the one side being residents of the state and those on the other side residents of some other state or states. Grignon vy. Astor, SupreME CourT oF THE Unirep Srares, 1844 (2 How. 319). Baldwin, J.: . . . The granting the license to sell is an adju- dication upon all the facts necessary to give jurisdiction, and whether they existed or not is wholly immaterial, if no appeal is taken ; the rule is the same whether the law gives an appeal or not; if none is given from the final decree, it is conclusive on all whom it concerns. The record is absolute verity, to contradict which there can be no averment or evidence: the court having power to make the decree, it can be impeached only by fraud in the party who obtains it. (6 Peters, 729.) 1 . ; . of producing new forms was almost exhausted. Bracton ean still Say, 7 ot ¢ runt I ( ULE a honum quot sunt f rmule bre vium. Only some sheht power ot varying the ancient formulas will be 1] col eded to the ( haneellor; all t 1 it goes beyond this must be done Ni by Statutes, and when Edward [ is dead, statutes will do little for our ordinary private law. The subsequent dev lopment of forms will consist almost entirely of modifications of a single action, namely Tr spass, until at leneth it and its progeny Hy ‘tment, Case, Assi mpsit, Trover— will have ousted nearly all the older actions. This process, He aq oarded from onc point of view, represents a vigorous, though contorted, growth of our sub- stantive law; but it is the decline and fall of the formulary sys tem, for writs are being made to do work for which they were not originally intended, and that work they can do only by means of fictions. Extracts from Firznersert, Narura Brevium.’ (Sir Anthony Fitzherbert was a justice of the Court of Common Pleas in the reign of Henry VIII.) Writ or Asstsrt or Novert Dissersty. The Kine to the Sheriff we. A hath complained to us that B unjustly anc without judg ment hath disseised him of his freehold in C after the first passage of our lord King Henry, son of King J., into Gascoigne; and there- 1 fore we command you, that if the aforesaid A shall make you secure to prosecute his claim, then cause that tenement to be eized, and the chattels which were taken in it, and the same tenement with the chattels to be in peace until the first assise, when our justices shall come into those parts, and in the meantime 1This work sums up the medieval learning on actions. The authorita- tive collection of writs is Registrwm Omnium Brevium (last edn. 1657). Other collections of specimen writs will be found in Maitland, Equity & Forms vf Action, 376 ff and in 1 Holdsworth, 651 ff.Oe ee Ae 400 THE COMMON-LAW ACTIONS cause twelve free and lawful men of that venue to view that tenement and their names to be put into the writs, and summon them by good summoners, that they be before the justices afore- said at the assise aforesaid ready to make recognizance thereupon, and put by gages and safe pledges the aforesaid B, or (if he shall not be found) his bailiff, that he may be then and there to hear that recognizance &c. And have there the summoners, the names of the pledges, and this writ We. ‘ Writ or Egectione Firmar (Esrorment). A writ of Hyec- tione Firmae lieth, where a man doth lease lands for years Xe., and afterwards the lessor doth eject him, or a stranger doth eject him of his term, the lessee shall have a writ of Lyectione Firmae ; and the form of the writ is such: The King to the Sheriff &. If A shall make secure &c., then put &e., B that he be before our justice &e., to shew wheretore with force and arms he entered into the manor of E, which T demised to the said A for a term which is not yet passed, and the goods and chattels of him the said A to the value of &e., found in the same manor, took and carried away and ejected him, the said A, from his farm aforesaid, and other wrongs to him did, to the great damage of We. Writ oF Dest. A writ of debt properly licth where a man oweth another a certain sum of money by obligation, or by bargain for a thing sold, or by contract, or upon a loan made by the credi- tor to the debtor, and the debtor will not pay the debt at the day appointed that he ought to pay it, then the creditor shall have an action of debt against him for the same; and it may be sued in the county before the sheriff by justices, as well as in the Common Pleas; and the form of the writ is sometimes in the debet and detinet, and sometimes in the detinet only and not in the debet and if it be in the debet it shall abate. It shall always be in the debet and detinet, when he who makes the bargain or contract, or lends the money, or he to whom the bond is made, bringeth the action against him who is bounden, or party to the contract or bargain, or unto the lending of money. . . . Butif a man sell twenty quarters of wheat or a horse; if he bring debt for the horse the writ shall be in the detinet only; and the formDEBT 101 of the writ, sued in the county before the sheriff. for monev. is such: The King to the Sheriff of Surry, Greeting: We command you that you justice A that justly and without delay he render to B twenty shillings which he oweth to him as it is said. as he can reasonably show that he ought to render it to him, that we may hear no more clamor for want of justice &e. * Witness &e. And if the writ of debt be for other goods or chattels than mon Y, then the writ of debt shall be such: The King to the Sheriff &e. We command you that you justice A &c., that he render to B a certain book, or a certain cup, or a certain horse, or two lambs of the price of &¢., which he unjustly detains from him &e. And the form of the writ of debt in the Common Pleas is: The King to the Sheriff &. Command correspond with the writ; for example, action accrued after 1 declaration that the car It must state all issued, the declaration will be bad. sary in point of law to support t + facts must be set The plaintiff is not confined to the statement « action only, for the declaration may consist of several eounts, ane each of those counts may state a different cause of action. the fi rst count of a declaration in asswmpsit, may be on a bill of CXt hange, the second on a promissory note, the third for goods sold and delivered, anc But there is this limitation, namely, that all the counts must belone to the same form of action; thus,492, THE ELEMENTS OF PROCEDURE a declaration must not contain one count in debt. and another in assumpsit, one count in trespass, and another in ease. There is, however, one exception to this rule, namely, that debt aren Mae atet trere and detinue may be joined together in the same declaration. It had been decided in several cases, that any variance between f the cause of action in a material part of the statement « the declaration and the evidence adduced at the trial in support of it, was fatal, and a ground of nonsuit. The consequence of this was, that plaintiffs were continually nonsuited, in the most vexa- tious manner, on account of slight variances between the declara- tion and the evidence; and to such an extreme was this carried, that there is one case of Walters v. Mace, 2 B. & A. 756, in which the plaintiff was nonsuited, because, in copying Lord Waterpark’s title in the declaration the clerk, instead of writing Baron Water- park of Waterpark, had written Baron Waterpark of Waterfork. In order to prevent the fatal mischief often occasioned by these trifling variances, pleaders used to insert a great number of counts in the declaration, stating the cause of action, in different ways, in hopes that, if the evidence varied from some, it might not from others: and that one count, at least, might be found free from objection on the score of variance. . . . : . . . ° The plea is the defendant’s answer to the declaration by matter of fact, and is either a plea in abatement or a plea in bar. A plea in abatement is one which shews some ground for abating or quash- ing the original writ in a real or mixed action, or the declaration in a personal action, and makes prayer to that effect; it theretore does not contain an answer to the cause of action, but shews that the plaintiff has committed some informality, and points out how he ought to have proceeded, or, in technical language, “olves him a better writ or declaration.” Pleas in abatement are not usual; they are discouraged by the courts as tending to throw technical difficulties in the plaintiff’s way. They must, by stat. 4 Anne ec. 16, always be verified by affidavit, which must be delivered with the plea, unless, as in Johnson v. Popplewell, 2. Tyrwh. 717, the distance of the intended deponent’s residence from town induces a judge to grant further time. They cannot be amended, and the power of pleading several matters does not extend to them. A plea in bar, which is the sort of plea most usually resorted to, 1S a peremptory and substantial answer to the action. Such a plea 3 ee : ; ‘ : 1S elther a traverse or a plea in confession and avoidance: thereis, indeed, a third sort of plea, entitled SoFEN plea in estoppel” but this is of rare practical occurrence. A plea, when it denies some essential part of the declaration, is said to be a traverse. It is ‘‘in Pee ne yd ter contession and avoidane: when it admits the averments of fact the declaration to be true, but shews some new matter not men- tioned in the declaration, which destroys the plaintiff’s right of actl nh. Thus, in an action against the maker ot a note, if the defendant plead “he did not make the note,” that is a traverse. But if he pl ad ‘‘that he did make it, but for an ill oral considera- tion of which the plaintiff was aware,” that is a plea in confession and avoidance. A traverse always concludes to the country, that is, in these words, ‘‘and of this the said defendant puts himself upon the country, &e.”’ A plea in econtession and avoidance alway S concludes with a verification, 7.e., in these words, ‘‘and this the said defendant is ready to verify, Xe.” At common law, the defendant was allowed but one plea to each count of the declaration; and, for this restriction, a very unsatis- facti ry reason Was asslon¢ d, nami ly, that, as one defense is sufti- cient to rebut the action, the defendant could have no oceasion to set up more. But it is obvious that a defendant mav have several good defenses against the same action, and yet may reasonably 1 wish to plead them all, in order that, if Dy some aceident, his evi- dence of one of them should fail, H may re y upon another. Ac cordingly, by stat. 4 & 5 Anne, ce. 16, the defendant is at liberty to plead several pleas by leave of the court The subsequent steps in pleading are the replication, containing the p! aintiff’s answer to the plea ; the xr joinder, the defendant’s answer to the replication; the surrejoinder, the rebutter, and the llom reach to surrebutter, surrebutter, and so on. The pleadings S{ but they sometimes do, and there is nothing to prevent their going beyond te but the steps beyond surrebutter have no distinetive names. At each of these steps the party replying, rejoining or framing any other pleading, must either traverse or confess and avoid, that is, must either deny some material part of the adver- sary’s last pleading, or must admit such last pleading to be true, but alleee some new matter, altering the legal effect of it, and showing that he himself iS, nevertheless, entitled to judgment. [6h he traverse he concludes to the country, that is, if plaintiff, he concludes by saving, “and of this the said plaintiff prays may beSe Ree eae eee nea 494 THE ELEMENTS OF PROCEDURE inquired of by the country, &e.;” if defe ndant, by saying, of this the said defendant puts himself upon the country, &e.” If he confess and avoid. he coneludes with a verification, that 1s, by saying, ‘‘and this he is ready to v« rify, &e.”’ Thus the pleadings eo on, step by step, till at last the parties come, as they necessarily must, to a direct contradiction, which, upon a fact, is called “an issue,” if upon a point of law, “a demurrer.” It has been already said, that at each step in the pleadings either party may, if he think fit, instead of pleading, replying, rejoining, ete., demur to the last pleading of his adversary, that 1S, he may say it is not sufficient in law. Thus, if A sue B as the maker of a promissory note, or as the acceptor of a bill of exchange, of which he, A, is the indorsee, and B pleads that the payee gave him no consideration for it, instead of replying to this plea, A might demur, because even admitting it to be true, it would be no defense against an indorsee, who must be presumed to have given value until the contrary is shown, because promissory notes and bills of exchange are an exception to the rule which prevails in the case of other simple contracts; there the law presumes there was no consideration till it appear, and therefore the plaintiff must aver in his declaration on a simple contract that it was made on a good consideration; but in the case of contracts on bills or notes, a con- sideration is presumed till the contrary appear. If the opposite party thinks the law is in his favor, he joins in demurrer, and then the point is argued and decided by the Court in banco. If he finds that he has made a mistake, he usually amends, which a judge will allow him to do on payment of the costs occasioned to the opposite party by his mispleading. A demurrer is either general or special. A general demurrer lies when the objection is a substantial one, as in the case just put by way of example. for costs. There is a rule of Hilary, 1832, see. 98, which obliges : ; ; : ie — the defen ant to make this application before issue joined. ,nen the application iS made in due time, 1t 18S so mueh course to erant it that even a foreion potentate suing’ in our courts is obliged to find security. The last of these oceasional applications of which notice need here be taken is for the purpose of changing the venue. The venue as has already been said, is the county mentioned in the margin of the declaration. and it has been shown in what cases it is local and in what transitory; that it is local when the cause of action ey could not have taken place in any other county, as, for instance, In actions of trespass guare clausum fregit; transitory, where the cause of action night have happened in another county, as in actions of trespass for assault and battery... Now at common law, the rule was, that in a transitory action the plaintiff might lay the venue wherever he pleased. But this was found to ereate so much vexation, in consequence of plaintiffs laying venues at a from the defendant’s residence, that it was enacted ore at distance ae ely esee eer 42 THE ELEMENTS OF PROCEDURE CO by stat. 2 Rich. 2, c. 2, that the venue should be laid in the county where the cause of action arose. . . . . . . . . ° o . es . Anciently there were a variety of modes of trial appropriated by the law, as it once stood, to various states of circumstances. Those which remain in force are :— 1. Trial by inspection is when the matter in dispute being the object of sight, the judges of court, upon the evidence of their senses shall decide it. 2. By certificate, a mode confined to one or two very unusual causes, is where the evidence of the person certifying is the only criterion of the point in dispute. ‘Thus the certificate under seal of the king’s mareschal that A was absent with the king and his army, shall be conclusive of that fact. 3. By witnesses. Without a jury, when the judge forms his sentence upon the credit of the witnesses examined, as when a widow brings writ of dower, and the plea is, that the husband is not dead. This being regarded as a dilatory plea, is allowed to be tried in this mode, which is more unusual still than either of the former. 1. By the record. This takes place when issue happens to be joined between the parties, as it sometimes is, upon the existence or nonexistence of a particular record; as whether A is an earl or not, is triable by the crown-patent only, which is a matter ot record, or if created by writ, then by record of Parliament. In such a case, as it is a maxim that a record can only be proved by itself, and it is so absolute as to admit of no contradiction, it would be useless to convene a jury for the purpose of determining that which the court on the production of the record is bound to take notice of. Accordingly, when some pleading denies the existence of a record, the issue joined thereon, and which is called an issue of nul trel record, concludes with an entry, stating that which would anciently have been stated by the court viva voce on such an occasion, namely, that a day is assigned for the production of the alleged record and the judgement of the court thereon. On the day named which must be in Term, as the issue is triable only before the Court in Bane, the record, being brought into court 13 examined with the statement in the pleading which alleges it, andAT LAW ; 499 if they correspond, the party asserting its existence obtains jud o- — ment, otherwise, his adversary. The fifth and last existing mode of trial, and that which is alone of any very great practical importance, is by jury, and this re- quires a SO] lewhat more protracte dd consideration. It is applicable to the trial or every issue of faet, which according to the modern practice is jomed on the pleadings, except in the case of an issue taken upon the existence of a particular record. When the plaintiff has mace up his mind to try the cause, he ] must prepare his briefs and evidence. The brief contains a state- ment of the pleadings, case, and evidence, for the information o the counsel whom he intends to employ. With respect to the eyi- dence, that will of course be either oral or documentary. Where the attendance of witnesses is required, he may procure it by suing out writs of subpeena, copies of which must be served a reasonable time befor the trial on the intended witnesses, and their necessary expenses at the same time tendered to them; after which, if they neglect to attend, the plaintiff may proceed against them, either by Way of attachment, to punish their cont mpt ot court, or by way of action, to indemnify him for the injury he has sustained in consequence ot their absence. The writ ot subpoena may be issued to any part of England. If the witness be either in a foreion state, or in Eneland under such circumstances as render his personal attendance in court impossible, application must be made to the court, which has power to order his examination before the master, prothonotary, or any other person, if he be within its jurisdiction, or to issue a commission for his examination if he b« without. As to documentary evidence, if the instruments, the proof of which is required be in the party’s own possession, he must produce them; if in that of his adversary, he must give him a notice to produce them, and, in case of non-compliance, will be allowed to give secondary evidence of their contents. If they be in the hands of a third person, the attendance of that person with them must be enforced by a subpoena duces tecum. We will now suppose that the jury have been summoned, and are in attendance, and the cause called on as it will be if properly entered in its due turn. If no motion be made to put off the trial, and tne plaintiff being ready is not forced to withdraw his record,Se ee 130 THE ELEMENTS OF PROCEDURE the first step taken is to empanel and swear the jury. The jurors } are called over and sworn, and as they are called over, may, 1m the common jury, if either party object to them, or any 01 case OL a them, be challenged. Challenges are either to the array or to the i Challenges to the array are exceptions to the entire panel, I in consequ officer who arrayed it. Challenges to the polls are exceptions to particular rors, ancl are of four kinds: First. propter honoris res pe clum, as, if a lord of parliament were to be empaneled ; SeGz alls. ence of some partiality imputed to the sheriff or other ondly, propter defectum, as if one of the jurors be an infant, alien, ‘diot. or lunatic, or have not a sufficient estate; thirdly, propter affectum, or for partiality, and this is either principal, 2.e., carry- ine with it a manifest ground of suspicion, or to the favor. . ° less the defendant will admit that they amount to the wholerecover is damages it because the Court knows not w] damages hy has sustained, the sheriff is commanded to inquire by a jury and return the Ing usiti n into court. The process di ‘ected TO the sheriff for this purpose is called Writ of Inquiry. and when he has returned his inquisition to the Court, final judgement is given that the plaintiff do recover the amount assessed. In some ‘ases, indeed where, though the form of action be for dam- ages, Vel it is easy to compute precisely what those dam [es MUst amount to, as where the action is brought on a bill of exchanee. the Court will order their own officer to assess them instead of issulng.a writ of inquiry. And in certain other cases where th laim 1s really unliquidated, though it appears liquidated in the cle laration, the coi It ill direct an inquiry. | ; AS to a pnal jude nent, it } ts an end LO the action altogether. DY at ‘larino either tha the P to recover, and if he be entitled to recover, specifvine what ae : Incident to the judement are the costs, which are awarded therein to the successful party. . . . Costs are either interlocu tory or final. Interlocutory costs are given upon matters arising in the course of the suit: they are generally awarded on motion, and lie in the dis I t101 { f the court V hich ( XeTCI1S! 5 its equitabl jurisdiction either in granting or refusing them. f inal costs are olven by Statute, an depend on the event Ol th action. The law applicable to final costs, depe nds on re asons altogether different from those which govern the costs of interlocutory pro ceedings by way of motion or summons: to grant or refuse the latter, rests, as has been already pointed Out, in the equity and discretion of the court or judge disposing of the application; the 1 former, as they cannot be given without a positive enactment, so neither, when given by such enactment, can they be taken away except by virtue of some power emanating from an enactment equally positive. The easiest and simplest mode of treating the subject of costs is to consider—first, the common law regarding them; second, the440) THE ELEMENTS OF PROCEDURE enactment by which plaintiffs are entitled to them; third, those by which defendants are so. First, then, with regard to the state of the common law respect- ing costs. The rule adopted by the civil law and all those various codes modern times been copied from it was expressed which have in “ictus victort im expenses damnandus est.” And by that maxim ; so consistent does it seem with right and justice that the pre- vailing party should be reimbursed by the defeated one, the costs occasioned by the latter’s obstinate resistance to a well-erounded claim or vexatious prosecution of an unjust demand, that it 1s not easy to conceive how a contrary rule could have been adopted, even by a people so uncultivated as our ancestors. The true reason f the proceedings will perhaps be found in the great simplicity « in those early times when there was little or no personal property, few or no contracts, and all trials concerned the ownership of land. When a court was to be found in every manor of which the lord was himself judge, and where the neighboring freeholders constituted both witnesses and jury, little or no expense could have been incurred, and there was, consequently, little or no neces- sity for reimbursement. Some checks indeed there were, even in those times, on vexatious litigation, for a fine was imposed on the plaintiff if he failed, as a punishment for his unjust prosecu- tion: while, on the other hand, the jury usually were directed in assessing damages against the defendant to take into consideration the expense to which the plaintiff had been wrongfully sub- jected through his obstinacy. However, when forms beeame less simple, and litigation more expensive, it was found necessary to adopt some more certain means of indemnifying the successful party. The Legislature, therefore, interfered, and this brings us to the consideration of those Acts of Parliament from which a plaintifl’s right to costs derives its origin. The first of these took place during the reign of that great im- prover of all branches of English law, Edward I. The Statute of Gloucester passed in the sixth year of his reign, ec. 1, provides in its second section, “that the demandant shall recover against the tenant the costs of the writ purchased, and that this act shall hold place in all cases where a man recovers damages.” A very liberal interpretation was given to this act, the words “costs of the writ purchased” have been held to include the wholecosts of the suit of though the words appear applicable t Les, that the st vers Gamaves, ) ] Li_C pi plevin, and #] lay entitled to his \7 \ had been in thi habi amount of damaoy he Statute of Gloucester he never recovered ybtain compel sation thi Ass. ‘Drover. Case. now come to when successful ‘tlons, yet the d extend Tf ll cases eld to tend it to t, Debt upon Contract, all which the plaintiff is a inti ot the statute as those of plaintifts : i ucester, as has been already mentioned. judges ; ‘tino’ the juries to allow pensation for his costs. VaAS aS a substitute him COSTS. But the had of course. never been 1 he medium of the jury amers of the Stat ft Glouce ster. W ho consid providing a substitute for the antecedent practice mpensation by the nt, to whom that eason were, howe lone nee ler tec. directed that in deb no notice of the case ever had CXTE nded. oly in his favor t by Stat, wo liens se covenant. detinue, and Case, the di fF ndant, the plaintiff should be nonsuited, or a verdict him, should recover covered had he been by stat. 4 Jae. Is © tift if he suec ded. joint operation of these two st: or tiff would have had a rie . . . . The plaintiff having obtained judgment is, course of things, roceedings in the nature of appeals, by means of which the judgment is sometimes rendered ineffectual, and the prevailing party’s right t a verdict for the defendant. costs as the plaintiff would have re successful: and this statute | actions what ver in which the plain entitled tO COSTS: tutes, whenever there is a nonsuit. he has a right to eosts, 1f them, . . . . entitled to issue execution, but there ) execution superseded. in the ordinaryeee eee ee {42 THE ELEMENTS OF PROCEDURE This may in some cases be done by a writ of audita querela which is sued out when a defendant against whom judgment has been given, and who is therefore in danger of execution, or actually in execution, has some eood matter of discharge ened since the judgment, and therefore applies to pression of the plaintiff. It perhaps which has hap} the court to be relieved against the op words with which it commences, stating that the complaint of the defendant hath been heard, and enjoins between him and the plaintiff. However, as the cases where an audita querela is named from the the court to do justice the court will now in most of used to be sued out, give summary relief on motion, this species of proceeding has fallen into neglect. A Writ of Error is an original writ issuing out of the Court of Chancery, in the nature as well of a certiorari to remove a record from an inferior to a superior court, as of a commission to the judges of such superior court to examine the record, and to affirm or reverse it according to law; and it lies where a party is agerieved by any error in the foundation, proceeding, judg- ment. or execution of a suit in a court of record. Co. Litt. 288 b. ippeal against the judgment, erounded either on the of some fact which renders the judgment erroneous, It 1s an : suggestion as for instance, when the plaintiff or defendant dies before verdict or interlocutory judgment; or on some error in point of law, apparent on the face of the proceeding. When it is grounded upon the suggestion of a fact, it is mostly brought in at one of the courts at Westminster in which the judgment was given. Such a proceeding is called a writ of error Coram Vobis, or if the judgment be one of the king’s bench, Coram Nobis, on account of its being founded on the record which, in the one case, re mains in the Court of our Lord the King, before the king himself, and in the other ease, before the king’s justices. A Writ of Error from either of the three courts at Westmins- ter to a superior court is founded on some defect of law manifest upon the record. By stat. 1 Wm. 4, ¢. 70, writs of error upon any judgment of the king’s bench, common pleas, or exchequer, shall be returnable only before the judges, or judges and barons, as the ease may be. ot the other two eourts, in the exchequer chamber, whence error again lies to the House of Lords, the decision of which is final.AT LAW 443 It must be sued out within cwenty years atter judgement, except indeed in the ease of a person being an infant, feme covert. non compos mentis, in prison, or bevond the seas. It is eenerally brought by the party against whom the judement has been eiven. but may be sued out by a plaintiff to reverse his own judement, if erroneous, and enable him to bring another action. But the person who brings it must be eifher party or privy to the jude ment or pr judiced by iit and therefore capable ot deriving an advantage from its reversal. And if there be one judgment against several, they cannot brine separate writs of error, but must all join in bringing a single one, for otherwise the plaintiff might be harassed by a multiplicity of writs of error. The writ is sued out of the Court of Chanc ry and directed to the person in the court below who has the custody of the record : ] hic as, in the kine’s bench and common pleas, to the lord jus- tice; in the « xchequer, to the treasurer and barons. It commands the inferior court to certify the record to the court of appeal, and the superior court to examine it and affirm or reverse the judgement according to law. And in order that a writ of error may operate as a stay of execution, it is, unless the court or a judge on special application, ord r otherwise, necessary that the cle fendant prose cuting a writ of error, and who is then called plaintiff in error, should put in bail, with two sufficient sureties, to prosecute his writ of error with effect, and also to pay, if the writ of error be ] non prossed, or the judgment affirmed, all the debt. damages, and costs adjudged upon the former judgment, and all costs and dam- ages to be awarded for the di laying of the execution. The sure- ties are bound by recognizance in double the sum recovered, ex- cept in the case of a penalty, and in the ease of a penalty, in double the sum really due and double the costs. Within twenty davs after the allowance of the writ of error, the plaintiff in error must get a transcript of the record prepared and examined by the clerk of the errors of the court in which judgment was given; otherwise his writ of error will be non prossed ; this transcript the clerk of the errors must annex to the writ of error, and deliver it when it becomes returnable, to the clerk of the errors in the court of error. After the writ has been returned into the court above. the plain- Pe ein LTT in errer may, by stat. 5. Geo. 1. c 13, move the court o error to amend any defect that he perceives in it; this could not nave been donc at common law, since the writ of error is the onlyee eho rae eer eae ne 4-44 THE ELEMENTS OF PROCEDURE + authority of that court, and no court can at common law amend its own commission: or the defendant in error may move to quash the writ, and will be entitled to his costs if he succeed. It may also abate by the death of the plaintiff in error before errors assigned, or by the marriage of the plaintiff in error, being a woman, or by the death of the chief justice before he has signed his return. If none of these things happen, the plaintitt in error must, within eight days after the delivery of the writ with the transcript anne xed. to the clerk of the errors of the court of error, assign errors, otherwise he may be non prossed. The Assignment of Error is in the nature of a declaration, stating the grounds for imputing error to the record upon which the plaintiff relies. The assignment of errors as well as the subsequent pleadings thereon, must be delivered between the at- torneys ot the parties litigant : and the plaintiff, having delivered it, may demand a Plea of Joinder in Error, from the opposite party, who must, within twenty day s, deliver one or demur, other- wise the judgment will be reversed. The usual plea or Joinder in Error as it is ealled, is in nullo est erratum,—Anglice, and that there is no error in the record ; which is in the nature of a demurrer, and refers the whole record to the judgment of the court, or the defendant in error may plead a special plea containing some matter, which confesses that the record is erroneous, but insists that the plaintiff has no right to take advantage of the error, ea. gr., a release of errors, or the Stat- ute of Limitations; to this special plea the plaintiff may either reply or demur, and the defendant may either demur or rejoin to his replication: so that at last, as in the pleadings at the com- mencement of the suit, an issue, either of law or fact, is Joined; which, if of law, is determined on argument, and if fact, is tried by a jury, and judgement given according to the verdict. The judgment of the court is either to affirm the former judg- ment; to recall it for error in fact; to reverse it for error in law; that the plaintiff be barred of his Writ of Error, when a plea of release of errors or of the Statute of Limitations is found for the defendant: or that there be a venire factas de novo. And if the judgment be reversed, the court of error will not merely over- turn the decision of the eourt below. but will eive such a deei- sion as the court below ought to have given. If it become a neces- sary to enter the judgment of the court of error, it 1s entered onPAT! STAN £45 1 the original record, which remains in the custody of the court below, which is empowered to award such further proceedings y be necessary thereon. en the ] ilement 1s athrmed or the w rit of erro hon prossed, the defendant in error 1s entitled to damages and costs, 1f aft verdict tor the plaintiff below, to double costs: and mav hav cxecution for them by ca. sa., fi. fa. or eleqit. He is also entitled to interest upon the judgment for the time that execution has be n delayed by the writ of error. If judement be reversed. each party must pay his own costs, and the plaintiff in error will, if execution have been levied upon him, be entitled to a Writ of Restitution. and will } restored to al] he has I ST [f the judgment be not reversed, vacated, or set aside. the pre- vailing party has a right to issue execution. This if the judgment be, as it almost always is, for so much money, is mostly by Writ ot Miert Fac las, Canias ad Satistaci: ndum or eli git. A fiert factas is, like the « Lpias ad satisfactendum and eleqif a judicial writ, and issues out of the court in which the judgment against the defendant was recovered. Exc pt in counties palatine (where it is addressed to the palatine officer), it is directed to the she riff ot the COUNTY where thi venue in the action was laid, com 1 72 ] ne ooods and chattels ot the defendant, he mandinge’ him that of 1 cause to be made the sum recovered, and have it be fore the court ] I on the return day: this being delivered to the sheriff or his deputy, he mak Ss a Warrant to one of his otheers, or if he be the othcer of a county palatine, grants his mandate to the sheriff, who, in his turn issues a warrant to his officer. At common law a fiert facias bound the defendant’s voods from the tim« of its teste SO that they might have been taken, ho matter into whos hands they had passed, and though sold bona fide for a valual le consid ration. Hows Ver, as against purchasers, the eoods are now bound only from the time of delivering the writ to the sheriff. If indeed after the delivery of the writ the defendant assion his eoods away, except in market overt, the sheriff may take them in execution. Under this writ anything may be seized and sold that is a chattel belonging to the defendant, except his necessary wearing apparel: the sheriff may sell leases and terms of years belonging to the defendant. fructus industriales, such as growing corn, which would go to the executor, and fixtures, when the execution is against a tenant who could have removed them ;446 TIIE ELEMENTS OF PROCEDURE but he cannot carry away, or sell for the purpose of being earried away, from lands let to farm, any straw, chaff, colders, turnips, manure, compost, ashes, or si aweed in any case whatever: nor any hay, grass, tares, vetches, roots or vegetables; being the pro- luce of such land, and which by any agreement made for the ( benefit of the landlord, and for which the sheriff shall receive a verbal notice before the sale, ought not to be taken therefrom. When the writ becomes returnable, the sheriff may return fiert fect, i. e., that he has levied the sum named in the writ, or a part of it, which he is ready to pay to the execution ereditor: or that he has taken eoods which remain unsold for want of buyers; or nulla bona, ee that the def« ndant has no ooods within his baili- wick; or any other legal excuse for not levying. It money have been levied, and the sheriff neglect to pay it over, the creditor may obtain it from him either by rule of court or action. If part only be levied. and of course when nulla bona is returned, he may have a new execution for the residue; and, if he think proper still to proceed by fiert facias, may sue out either an alias fiert facias into the same, or a festatum fiert facias into any other county. If the return be, that the goods are unsold for defect of buyers, he may have a writ of venditiont exponas commanding the sheriff to sell them. And, lastly, if the return be false, an action may be brought against the sheriff. A capias ad satisfaciendum is a writ by which the sheriff is commanded to take the defendant, and him safely keep, so that he may haye him in court on the return day to satisfy the plain- tiff. This process lies against every one who was not personally privileged against arrest at the commencement of the suit, and against some who were, such as attorneys. The sheriff must execute it literally according to its terms, and has no power, instead of arresting the defendant, to receive the money due from him, but, if the defendant wish to liberate him- self by payment, he must have recourse to the execution creditor, who is bound, on tender of the sum due, to sign a proper authority for his discharge. On the return day of this writ the sheriff generally returns Cepi corpus et paratum habeo, v.e., that he has taken the body of the defendant and has it ready; or that the de- fendant is so ill that he cannot remove him without danger to his life; or he may return non est inventus, 7.e., that the defendant isnot touncl . re pialntily may sue out al another county, or he may, if ne oa : ; as {lias apvas into the same, or a Testatiun 1 i Baxigi Facias and proceed to Outlaw rive high a yalue upon th Cxecution a satistac I therefore, th y | charer cd by privil 24, the former < \ I ] 1 arlilament as ceas 7° 1 SCa § PVOOdCS and him, though he will sneriit or oaoler for his An Hlegtt is a wri awarded, it shall bx r damages, to have a Writ of Fie) liver to him all the beasts of the plough, and levied by a reasonab] This writ of exec ] as well after his death as before it. to empanel a jury w defendant, and appraise them, and also inquire of his lands and The g tenements. + different from that pursued in executing a Fiert Facias, under which the sheriff must sell the eoods which he has taken. goods and chattels wi re not sufficient to satisfy the plaintiff’s mand, the sheriff was to extend a moiety of the lands, under which tcrm were included reversions and rent-charees bi longing to de- L belonging to a parsonage or vicarage were not extendible, nor were lands held in trust so, 29 Car. 2, ec. 3, s. 10: though, by that stat- rst Given Dy the st taken, he eithe r remains in r Court. iberty of the s ibject. that of the judement as defendant had died in Parliament. tor stat. 2 Jac. 1, ¢. 1: ves execution aft Chie latter execution ] 4 2 ] S nC he defendant es ] lainti t may have new 1 that ase have a rt ereliction of duty. } cl 13, hieh enacted that where a di bt 1S ed 1n ne election of him who sues for such debt hattels Or the debtor, Saving his oxen and a mol C\ ot his land. until the debt be price or extent. against a defendant’s |] » inquire of the goods and chattels . and chattels are delive red to thi at the price at which they have been valued by the jury: fendant, but copy-holds, rent-seck, advowsons in gross, or glebe If the last return be aol, or 1s removed by Habeas Cor US In either ea prison, or been dis- the plaintiff’ tut Kine’s Court. Pac 10aS.-OL th: [ The sheriff, on receiveee Sore nas {48 THE ELEMENTS OF PROCEDURE ute, some species of trust property, to which the defendant was entitled at the time of execution sued, might have been extended. The sheriff was to deliver a moiety of the land to the plaintiff by metes and bounds, giving him, however, in general, only legal posst ssion thereof, and leaving him to obtain the actual possession by ejectment. After the lands had been extended by 1 irtue of this { ] writ, the plaintiff could have no further execution, unless, indeed, he was evicted out of the whole; in which ease he might, by statute 39 Hen. 8. c. 3. sue out a Scire Facias to obtain one. If, however, he was evicted of part only, he had no remedy, that case not hav- ing been provided for in the statute. When the plaintiff had been, by perception of the rents and profits, satisfied his entire demand, the defendant might recover his land again by bringing an eject- ment or Scire Facias ad Computandum in a Court of law, or by application to a Court of equity, or he might move the Court out of which the execution issued to refer it to the master to take an account of the plaintiff’s receipts, and order him to quit poss¢ ssi0n, if it appeared that his demand was satisfied. None of these writs of execution can be sued out after a year and a day from the time of judgment, unless indeed the delay has been caused by the act of the Court, or the consent of the parties. In general, therefore, when that time has elapsed, it 1s necessary to revive the judgment by a writ of Scire Facias, the nature of which will be immediately described. It has been just remarked, that after the expiration of a year and ‘a day, the plaintiff cannot sue out any of the above Writs of Execution, without reviving his judgment by a writ of Scire Facias the reason of which is, that, after so long a space of time, the Court prima facie presumes his demand to be satisfied. We will present the reader with a short account of the proceedings by which the revival of a judgment is effected. A Scire Facias is a writ founded upon some matter of record. When brought, as it may be, to repeal a patent, it is an original writ, issuing cut of the Court of Chancery; in other cases it is a judicial writ, and is sued out of the Court in which the record on which it is founded happens to be. It is considered as the commencement of a new action, and has, therefore, been enumerated at the beginning of this treatise, among Actions Personal. Among the great variety of purposesAT LAW to which it may be applied, it is here intended to consider only the mode in which it is used. for the purpose of revivin ment. The Scire Facias states the judgment recovered by the plaintiff, and that execution still remains to be had, and commands the sheriff to make known to the defendant that he be in Court at the return day, tO she W why the } laintitft ought not to have i xecuti n. After the judgment has been revived by means of this writ, the plaintiff must take out execution within a year and a day from the revival: for if he do not, or if the defendant happen to die, he cannot afterwards take out execution, but will be forced to brine anew Scere Hacias. A Scire Facias upon a judgment is necessary, not only when the plaintiff has delayed to take out execution within a year and a day, but also when any new person is to be benefited or charged by the execution of the judgment; for it is a rule that executions. and all other judicial writs, must pursue and correspond with the judgments on which they are founded; therefore, if a judgment be obtained against A, and he die, a writ of execution cannot issue against his executor, for he was no party to the judement; so, if the plaintiff obtain judgment, and marry, execution cannot issue in favor of her husband, for he is not mentioned in the record. In these and similar cases, a writ of Scire Facias is sued out, which recites the facts as they have happ ned; the judgment oiven upon that writ includes the new party intended to be benefited or charged, and execution may be afterwards sued out upon that judgement. Bracxsronr, Commentaries. III. 449. The first commencement of a suit in chancery is by preferring a bill to the lord chancellor, in the style of a pi tition ; “humbly complaining showeth to your lordship your orator A B, that,” ete. ‘This is in the nature of a declaration at common law, or a libel and allegation in the spiritual courts; setting forth the cir- cumstances of the case at length, as some fraud, trust, or hardship ; 1 On the history of procedure in equity and its relation to Roman and canon- law procedure, see Langdell, Summary of Equity Pleading, §§ 1-52. For modern equity practice in the United States, see Lile, Outline of the Equity Pleading and Practice, 2 ed. 29 z Pie ea450 THE ELEMENTS OF PROCEDURE “ tender consideration whereof” (which 1s the usual language of the bill), “and for that your orator 1s wholly without remedy ore prayed at the chancellor’s at the common law,” relief is theret hands, and also process of subpena against the defendant, to com- pel him to answer upon oath to all the matters charged in the bill. By And, if it be to quiet the possession of lands, to stay waste, or to stop proceedings at law, an injunction is also prayed, in the nature of an interdictum by the civil law, commanding the defendant to cease. This bill must call all necessary parties, however remotely con- cerned in interest, before the court; otherwise no decree can be made to bind them; and must be signed by counsel, as a certificate of its decency and propriety. For it must not contain matter | either scandalous or impertinent: if it does, the defendant may vefuse to answer it, till such scandal or impertinence is expunged, which is done upon an order to refer it to one of the officers of the court, called a master in chancery; of whom there are in number twelve, including the master of the rolls, all of whom, so late as the reign of Queen Elizabeth, were commonly doctors of the civil law. The master is to examine the propriety of the bill: and if he reports it s¢ andalous or impertinent, such matter must be struck out. and the defendant shall have his costs; which ought of right to be paid by the counsel who signed the bill. | ¥ ° e > ° > ~ : erure When the bill is filed in the office of the six clerks, (who origin- ally were all in orders: and therefore, when the constitution of the court began to alter, a law was made to permit them to marry, ) when, I say, the bill is thus filed, if an injunction be prayed there- in, it may be had at various stages of the cause, according to the cir- cumstances of the case. If the bill be to stay execution upon an oppressive judgment, and the defendant does not put in his answer within the stated time allowed by the rules of the court, an 1n- junction will issue of course: and, when the answer comes in, the injunction can only be continued upon a sufficient ground appear- ing from the answer itself. But if an injunction be wanted to stay waste, or other injuries of an equally urgent nature, then upon | the filing of the bill, and a proper case supported by affidavits, the court will grant an injunction immediately, to continue until the defendant has put in his answer, and till the court shall make some further order concerning it, and when the answer comes in, wheti- er it shall then be dissolved or continued till the hearing of teIN EQUITY 451 cause, 1s determined by the court upon argument, drawn from con- sidering the answer and affidavit together. But, upon common bills, as soon as they are filed, process of subpoena is taken out: which is a writ commanding the defendant to appear and answer to the bill, on pain of 1007. But this is not all: for if the de L¢ ndant, on St rvic of the sub; end, does not ap- pear within the time limited by the rules of the court, and plead, demur, yr answer to the bill, he is then said to be in contempt ; and the ré spective processes of contempt are, in successive order, awarded against him. Che first of which is an attach lent, which is a writ in the nature of a capias, directed to the sheriff, and commanding him to attach, or take up, the defendant, and bring him into court. If the sheriff returns that the defendant non esf unventus, then an attachment with pro lamations issues, which, beside the ordinary form of attachment, directs the sheriff. that he cause public proclamations to be made, throughout the country, to summon the defendant upon his allegiance, personally to appear and answer. If this be also returned with a non est inventus. and he still stands out in contempt, a commission of rebellion is awarded against him, for not obeying the king’s proclamations ac cording to his allegiance; and four commissioners therein named. or any of them, are ordered to attach him wheresoever he may be found in Great Britain, as a rebel and contemner of the kino’s laws and government. by refusing to attend his sovereign when thereunto required: since, as was before observed, matters of equity were originally determined by the king in person, assisted by his council : though that business is now devolved upon his chancellor. If upon this commission of rebellion a non est in ventus is returned, the court then sends a sergeant-at-arms in quest of him; and if he eludes the search of the sergeant also. then a sequestration issues to seize all his personal estate, and the profits of his real, and to detain them, subject to the order of the eourt. Sequestrations were first introduced by Sir Nicholas Bacon, lord keeper in the reign of Queen Elizabeth; before which the court found some difficulty in enforcing its processes and decrees. Af ter an order for a sequestration issued, the plaintiff’s bill is to be taken pro confesso, and a decree to be made accordingly. So that the sequestration does not seem to be in the nature of process to bring in the defendant, but only intended to enforce the perform- ance of the decree. Thus much if the defendant abseonds.een nee ene arr 452 THE ELEMENTS OF PROCEDURE Tf the defendant is taken upon any of this process, he 1s to be committed to the Fleet or other prison till he puts in his appear- answer, or performs whatever else this process is issued to ance or enforce, and also clears his contempts by ] the plaintiff has ‘neurred thereby. For the same kind of process (which was also the process of the court of star-chamber till its | sorts of contempts during the yaying the costs which dissolution) is issued out in al progress of the cause if the parties in any point refuse or neglect to obey the order of the court. ly corporate is by distringas, to dis- The rocess against a boc } rents and profits, till they train them by their goods and chattels, shall obey the summons or directions of the court. And if a peer ‘sa defendant, the lord chancellor sends a letter missive to him to request his appearance, together with a copy of the bill; and if he neglects to appear, then he may be served with a subpena; and -f he continues still in contempt, a sequestration issues out 1mme- diately against his lands and eoods, without any of the mesne process of attachments, etc., which are directed only against the person, and therefore cannot affect a lord of parliament. The same process issues against a member of the house of commons, except that the lord chancellor sends him no letter missive. The ordinary process before mentioned cannot be sued out till after the service of the subpena, for then the contempt begins ; otherwise he is not presumed to have notice of the bill; and there- fore by absconding to avoid the sub pana a defendant might have eluded justice till the statute 9 Geo. II. e. 25, which enacts that where the defendant cannot be found to be served with process of subpeena, and absconds (as 1s believed) to avoid being served there- with, a day shall be appointed him to appear to the bill of the plaintiff, which is to be inserted in the London Gazette, read in the parish church where the defendant last lived, and fixed up at the royal exchange; and, if the defendant doth not appear upon that day, the bill shall be taken pro confesso. But if the defendant appears regularly, and takes a copy of the bill. he is next to demur, plead or answer. A demurrer in equity is nearly of the same nature as a demur- rer in law, being an appeal to the judgment of the court, whether the defendant shall be bound to answer the plaintiff’s bill; as for want of sufficient matter of equity therein contained; or where the plaintiff, upon his own showing, appears to have no right; orIN EQUITY where the bill Sé eks a discovery of a thing which may cause a for- feiture of any kind, or may convict a man of any criminal mis- behavior. For any of these causes a defendant may demur to the bill. And if, on demurrer, the defendant prevails, the plaintift’s bill shall be dismissed: if the demurrer be overruled, the defend- ant is ordered to answer. A pl a may be either to the qurisdu tion, showing that the eourt has no cognizance ot the cause, or to the person, showing some dis- ability in the plaintiff, as by outlawry, excommunication, and the like: or it is in bar; showing some matter wherefore the plaintiff ean demand no relief, as an act of parliament, a fine, a release, or a former decree. And the truth of this plea the defendant is bound to prove, if put upon it by the plaintiff. But as bills are often of a complicated nature, and contain various matter, a man may plead as to part, demur as to part, and answer to the residue. But no exceptions to formal minutiw in the pleadings will be here allowed; for the parties are at liberty, on the discovery of any errors in form, to amend them. An answer is the most usual defense that is made to a plain- tift’s bill. Itis given upon oath. or the honor of a peer or peeress : but where there are amicable defendants, their answer is usually taken without oath, by consent of the plaintiff. This method of proceeding is tak lh from the ecclesiastical courts, like the rest of the practice in chancery ; for there, in almost every case, the plain- tiff may demand the oath of his adversary in supply of proof. Formerly this was done in those courts with compurgators, in the manner of our waging of law: but this has been long disused and instead of it, the present kind of purgation, by the single oath of the party himself, was introduc d. This oath was made use of in spiritual courts, as well in criminal cases of eccle siastical cogm zance as in matters of civil rights; and it was then usually de- nominated the oath ea officio: whereof the high commission court in particular made a most extravagant and illegal use; forming a court of inquisition, in which all persons were obliged to answer in cases of bare suspicion, if the commissioners thought proper to proceed against them CL officio for any supposed ecclesiastical enormities. But when the high commission court was abolished by statute 16 Car. I. ¢. 11, this oath ex officio was abolished with it, and it is also enacted, by statute 13 Car. IT. st. 1, ec. 12, “that it shall not be lawful for any bishop or ecclesiastical judge to454 THE ELEMENTS OF PROCEDURE tender to any person the oath ex officio, or any other oath, whereby the party may be charged or compelled to confess, accuse, or purge himself of any criminal matter.” But this does not extend to oaths ‘na civil suit: and therefore it is still the practice, both in the spiritual courts and in equity, to demand the personal answer of the party himself upon oath. Yet if in the bill any question be put that tends to the discovery of any erime, the defendant may thereupon demur, as was before observed, and may refuse to answer. If the defendant lives within twenty miles of London, he must be sworn before one of the masters of the court: if farther off, there may be a dedimus potestatem, or commission to take his an- swer in the country, where the commissioners administer him the usual oath: and then, the answer being sealed up, either one of the commissioners carries it up to the court, or it is sent by a messenger, who swears he received it from one of the commis- sioners, and that the same has not been opened or altered since he received it. An answer must be signed by counsel, and must either deny or confess all the material parts of the bill; or it may confess and avoid, that is, justify or palliate the facts. If one of these is not done, the answer may be excepted to for insufficiency, and the defendant be compelled to put in a more sufficient answer. A defendant cannot pray anything in this his answer but to be dis- missed the court; if he has any relief to pray against the plain- tiff, he must do it by an original bill of his own, which is called a cross-bill. After answer put in, the plaintiff upon payment of costs may amend his bill, either by adding new parties or new matter, or both, upon the new lights given him by the defendant; and the defendant is obliged to answer afresh to such amended bill. But this must be before the plaintiff has replied to the defendant’s answer, whereby the cause is at issue; for afterwards, if new mat ter arises, which did not exist before, he must set it forth by a supplemental bill. There may be also a bill of revivor when the suit is abated by the death of any of the parties; in order to set the proceedings again in motion, without which they remain at a stand. And there is likewise a bill of interpleader ; where a per- son who owes a debt or rent to one of the parties in suit, but, till the determination of it, he knows not to which, desires that they may interplead, that he may be safe in the payment. In this lastIN EQUITY 455 case it is usual to order the money to be paid into court for the benefit of such of the parties to whom upon hearing the court shall decree it to be due. But this depends upon circumstances; and the plaintiff must also annex an affidavit to his bill, swearing that he does not collude with either of the parties. If the plaintiff finds suth rent matter confessed in the defend- ant’s answer to ground a decree upon, he may proceed to the hear- ing of the cause upon bill and answer only. But in that case he must take the defendant’s answer to be true, in every point. Otherwise the course 1s for the plaintiff to reply generally to the answer, averring his bill to be true, certain, and sufficient, and the defendant’s answer to be directly the reverse; which he is ready to prove as the court shall award; upon. which the defendant re- joins, averring the like on his side: which is joining issue upon the facts in dispute. To prove which facts is the next concern. This is done by examination of witnesses, and taking their depositions in writing, according to the manner of civil law. And for that purpose interrogatories are framed, or questions in writ- ing; which, and which only, are to be proposed to, and asked of, the witnesses in the cause. These int rrogatories must be short and pertinent: not leading ones (as, “did not you see this?” or, he depositions d. For the purposes of examining witnesses in or near London, there is “did not you hear that 2’); for if they be such, t taken thereon will be Su] pressed and not suffered to be reé an examiner’s office appointed ; but for such as live in the country, a commission to examine witnesses is usually granted to four com- missioners, two named of each side, or any three or two of them, to take the depositions there. And if the witnesses reside beyond sea, a commission may be had to examine them there upon their own oaths, and (if foreigners) upon the oaths of skilful inter- preters. And it hath been established that the depositions of a heathen who believes in the Supreme Being, taken by commission in the most solemn manner according to the custom of his own country, may be read in evidence. The commissioners are sworn to take the examinations truly and without partiality, and not to divulge them until published in the court of chancery; and their clerks are also sworn to secrecy. The witnesses are compellable by process of swhpana, as in the courts of common law, to appear and submit to examination. And156 THE ELEMENTS OF PROCEDURE when their depositions are taken, they are transmitted to the court with the same eare that the answer of a defendant is sent. If witnesses to a disputable fact are old and infirm, it is very usual to file a bill to perpetuate the testimony of those witnesses, although no suit is depending; for, it may be, a man’s antagonist only waits for the death of some of them to begin his suit. This is most frequent when lands are devised by will away from the heir at law, and the devisee, in order to perpetuate the testimony of the witnesses to such bill, exhibits a bill in chancery against the heir, and sets forth the will verbatim therein, suggesting that the heir is inclined to dispute its validity: and then, the defendant having answered, they proceed to issue as in other cases, and ex- amine the witnesses to the will; after which the cause is at an end, without proceeding to any decree, no relief being prayed by the bill: but the heir is entitled to his costs, even though he con- tests the will. This is what is usually meant by proving a will in chancery. When all the witnesses are examined, then, and not before, the depositions may be published, by a rule to pass publication; after which they are open for the inspection of all the parties, and copies may be taken of them. The cause is then ripe to be set down for hearing, which may be done at the procurement of the plaintiff, or defendant, before either the lord chancellor or the master of the rolls, according to the diseretion of the clerk in court, regulated by the nature and importance of the suit, and the arrear of causes depending before cach of them respectively. Concerning the authority of the master of the rolls, to hear and determine causes, and his general power in the court of chancery, there were (not many years since) divers questions, and disputes very warmly agitated ; to quiet which, it was declared by statute 3 Geo. II. ce. 30, that all orders and decrees by him made, except such as by the course of the court were appropriated to the great seal alone, should be deemed to ye valid; subject nevertheless to be discharged or altered by the lord chancellor, and so as they shall not be enrolled, till the same are signed by his lordship. Hither party may be subpoenaed to hear judgment on the day so fixed for the hearing; and then, if the plaintiff does not attend, his bill is dismissed with costs; « r, if the defendant makes detault, a decree will be made against him, which will be final, unless he pays the plaintiff’s cost of attendance and shows good cause toIN EQUITY 157 the contrary on a day appointed by the court. A plaintiff’s bill may also at any time be dismissed for want of prosecution, which is in the nature of a non-suit at law, if he suffers three terms to elapse without moving forward in the cause. When there are CYross-causes, On a eross-bill filed by the defend- ant against the plaintiff in the original cause, they are generally eontrived tO be brought on together, that the Same hearing and the same decree may serve for both of them. The method of hearing causes in court is usually this. The parties on both sides appt aring by their eounsel, the plaintiff's bill is first opened, or briefly abridged, and the defendant’s answer also, by the junior counsel on each side; after which the plaintifi’s leading counsel states the case and the matters in issue, and the points of equity arising therefrom; and then such depositions as are ealled for by the plaintiff are read by one ot the SIX el rks, and the plaintiff may also read such part of the defendant’s answer as he thinks material or convenient: and after this, the rest of the counsel for the plaintiff make their observations and argu- ments. Then the defendant’s counsel go through the same process for him, except that they may not read any part of his answer; and the counsel for the plaintiff are heard in reply. When all are heard, the court pronounces the decree, adjusting every point in debate according to equity and good conscience; which de- eree being usually very long, the minutes of it are taken down and read openly in court by the registrar. The matter of eosts to be elven to either party is not here held to be a point of right, but merely discretionary (by the statute 17 Ric. II. ec. 6) according to the circumstances of the case, as they appear more or less favorable to the party vanquished. And yet the stat- ute 15 Hen. VI. c. 4 seems expressly to direct, that as well dam- ages as costs shall be given to the defendant, if wrongfully vexed in this court. The chancellor’s decree is either interlocutory or final. It very seldom happens that the first decree can be final, or conclude the cause; for, if any matter of fact is strongly controverted, this court is so sensible of the deficiency of trial by written di positions, that it will not bind the parties thereby, but usually directs the matter to be tried by jury; especially such important facts as the validity of a will, or whether A is the heir at law of B, or the existence of a modus decimandi, or real and immemorial com-| tO THE ELEMENTS OF PROCEDURE position for tithes. But, as no jury can be summoned to attend this court, the fact is usually directed to be tried at the bar of the court of king’s bench, or at the assizes, upon a feigned issue. For (in order to bring it there, and have the point in dispute, . and that only, put in issue) an action 1s brought, wherein the plaintiit by a fiction declares that he laid a wager of 5 I. with the defendant that A was an heir at law to B; and then avers that he is so: and therefore demands the 5 1. The defendant admits the feigned wager, but avers that A is not the heir to B; and thereupon that issue is joined, which is directed out of chancery to be tried: and thus the verdict of the jurors at law determines the fact in the court of equity. These feigned issues seem borrowed from the sponsio judicialis of the Romans; and are also frequently used in the courts of law, by consent of the parties, to determine some disputed rights without the formality of pleading, and there- by to save much time and expense in the decision of a cause. So, likewise, if a question of mere law arises in the course of a cause, as whether by the words of a will an estate for life or in tail is created, or whether a future interest devised by a testator shall operate as a remainder or an executory devise, it is the prac- tice of this court to refer it to the opinion of the judges of the court of king’s bench or common pleas, upon a case stated for that pur- pose, wherein all the material facts are admitted, and the point | of law is submitted to their decision; who thereupon hear it solemnly argued by counsel on both sides, and certify their opin- ion to the chancellor. And upon such certificate the decree is usually founded. Another thing also retards the completion of decrees. Frequent- ly long accounts are to be settled, encumbrances and debts to be inquired into, and a hundred little facts to be cleared up, before a decree can do full and sufficient justice. These matters are always, by the decree on the first hearing, referred to a master in chancery to examine, which examinations frequently last tor years; and then he is to report the fact, as it appears to him, to the court. This report may be excepted to, disproved, and over- a ruled: or otherwise is confirmed, and made absolute, by order of oo the court. When all issues are tried and settled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved, and a final decree is made; the per-IN EQUITY 459 formance of which is enforced (if necessary) by commitment of the person, or sequestration of the party’s estate. And if by this decree either party thinks himself agerieved, he may peti- tion the chancellor for a rehearing; whether it was heard before his lordship, or any of the judges sitting for him, or before the master of the rolls. For, whoever may have heard the cause, it is the chancellor’s decree, and must be signed by him before it is enrolled; which is done of course unless a rehearing is desired. Every petition for a rehearing must be signed by two counsel of character, usually such as have been concerned in the cause, 1 } I certifying that they appre hend the cause is proper to be rehe ard. And upon the rehearing, all the evidence taken in the cause, wheth« r read before or not, is how admitted to be read ; be cause it is the decree of the chancellor himself, who now only sits to hear reasons why it should not be enrolled and perfected ; at which time all omissions of either evidence or argument may be sup- plied. But, after the decree is once signed and enrolled, it eannot be reheard or rectitied but by bill ot review. or by appeal to the house of lords. A bill of review may be had upon apparent error in judgment appt arine on the face of the decree: or, by special leave of the court, upon oath made of the discovery of new matter or evidence, which e uld not possibly be had or used at the time when the decree passed. But no new evidence or matter then in the knowl- edge of the parties, and which might have been used before, shall be a sufficient ground for a bill of review. An appeal to parliament, that is, to the house of lords, is the dernier ressort of the subject who thinks himself aggrieved by an interlocutory order or final determination in this court; and it is effected by petition to the house of peers, and not by writ of error, as upon judgments at common law. This jurisdiction is said to have begun in 18 Jac., I., and it is certain that the first petition, which appears in the records of parliament, was preferred in that year; and that the first which was heard and determined (though the name of appeal was then a novelty) was presented a few months after; both levelled against the lord chancellor Bacon for corruption and other misbehavior. It was afterwards warmly controverted by the house of commons in the reign of Charles the Second. But this dispute is now at rest: it being obvious to the reason of all mankind, that, when the courts of equity became460 THE ELEMENTS OF PROCEDURE principal tribunals for dec ‘iding causes of property, a revision of their decrees (by way of appe al) became equally necessary as a writ of error from the judgment of a court of law. And upon the same principle, from decreeg of the chancellor relating to the commissioners for the dissolution of chauntries, etc., under the statute 37 Hen. VIII. c. 4, (as well as for charitable uses under the statute 43 Eliz. c. 4) an appeal to the king in parliament was always unquestionably allowed. But no new evidence is admitted in the house of lords upon any account; this being a distinct jurisdiction: which ditfers it very considerably from those 1n- stances, wherein the same jurisdiction revises and corrects its own acts, as in rehearings and bills of review. For it is a prac tice unknown to our law, (though constantly followed in the spiritual courts,) when a supe rior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evi- dence that was never produced below. And thus much for the general method of proceeding in the courts of equity.CHAPTER VIII RIGHTS? [here is no more ambiguous word in Jurisprudence than “right.’2 As oO SCUSSLONS ises: (1) Interest, as in most d a noun it has been used in fi) VE Sel of “natural rights.” Here it may mean (a) the interest one thinks should be recognized and secured, o (b) the interest as legally recognized, de limited, and secured. (2) A capacity of exacting acts or forbearances by another or by all others, recognized or conferred in order to secure an in- terest (a) legally through the force of politically organized society, as the law delimits the interest, or (b) morally. (3) A legally recognized or conferred capacity of creating, divesting, or altering rights in the second sense and so of creating or altering duties. H.g. the power of an owner to dispose of his property, i.e. to divest himself of the capacities of an owner and invest another with them. (4) Certain conditions of general or special non-interference with natural powers of action or inaction—conditions, as it were, of legal hands off; occasions in which the law secures interests by leaving men to the free exercise of their natural faculties. (5) In a purely ethical sense, that which is just. In addition right is used as an adjective to mean that which is in accord with justice. I. INTERESTS An interest (for the purposes of Jurisprudence) may be defined as a claim or demand or desire of a human being or group of human beings which the human being or group of human beings seeks to satisfy and of which, therefore, the ordering of human relations in civilized society must take account. A legal system attains its end (1) by recognizing certain interests, (2) by defining the limits of such recognition and the limits within which recognized interests shall be given effect through legal precepts, and (3) by endeavoring to secure, within the defined limits, the interests so recognized and secured. Thus the law seeks to adjust or harmonize conflicting or overlapping interests so as to permit of the fullest development and exercise of human powers and capacities. Pautsen, Ernics (Thilly’s translation) 633-637. The legal spheres, as we noticed be fore, correspond to the great spheres of action or the circles of interests, for the protection of 1 Holland, Jurisprudence, chaps. VII, VIII; Markby, Elements of Law, §§ 146-153; Salmond, Jurisprudence, §§ 70-73; Korkunoy, General Theory of Law (Hastings’ transl.) § 29; Hohfeld, Fundamental Legal Conceptions as Jpplied in Judicial Reasoning, 65-114; Wigmore, Summary of the Prin- ciples of Torts (Select Cases on Torts, Vol. U1) §§ 4-8. 2 See Pound, Legal Rights, 26 International Journal of Ethics, 92. 4614.62 RIGHTS which the legal order exists. The frst and narrowest sphere of interests is that which we may en ‘brace under the heading, body and life. Encroachments upon ae: domain are made by homic ide, disficurement, assault and battery, and all attacks upon life and health. Protection against such er imes forms an important part the oldest legal systems it occupies the most con- The laws of the ancient Germanic races, for ex- letermination of the amount of blood- injury against body and life. of all law; in spicuous place. ample, consist largely in the « money to be paid for every kind of If we mean by encroachments upon this domain only physic sal as- saults. then the law seems to leave no room for infractions. In fact, however, every hurt is directed against body and life, and so boundless opportunity is offered for unpunishable offences against others: such as causing nee annoyance, arousing their anger or erief, exploiting and defrauding them. This is what the Gospel has to say in the matter: ‘Whosoever hateth his brother 1s a mur- derer.”’ A second sphere of interests 1s bounded by the family, the ex- panded 1 ndividual life. Encroachments upon this domain are made by sae ry, abduction, substitut tion of children, seduction, and similar crimes. The more pronounced and tangible forms of such offences are reached by the criminal law; the more subtle forms of disturbing the peace of the home and the family, tale- bearing, intriguing, by which husbands are estranged from their wives and parents from their children, do not come within the reach of the law: think of Othello’s friend, Iago! A third sphere of interests is defined by property, which in- aan the sum-total of external means of self-preservation and voluntary action. Encroachments upon this field are made by rob- bery, theft, blackmail, fraud, forgery, embezzlement, usury, and all such offences as come under the head of crimes against prop- erty. Here again the criminal law cannot reach the more subtle methods by which prope rty is illegitimately aequired at others’ ex- pense. In spite of the e {forts of i . law to punish the offe onders, the inventive genius of the lower and higher criminal classes al- ways outwits the law. As a fourth sphere of interests may be mentione .d honor, or ideal self-preservation. Encroachments upon this domain are made by insults, false reports, slander. In these cases, much more than in the preceding ones, the criminal law can reach only the moreRIGHTS flagrant and careless, but not the more subtle and shrewd viola- tions, which are not the less injurious. There are a thousand an- onymous, indirect, undiscoverable ways of blasting a man’s rep- utation for which a penal formula never ean be found. The fifth sphere of interests is the free exercise of volition. At- tacks upon the liberty of others are made by kidnapping, illegal arrests, compulsion, threats. Breaches of domestic peace may also be placed in this list. In the primitive legal codes protection was afforded against this class of offences by threatening with punish- ment every one who made a slave ot a f ¢ llow. econtrary to the law. Legal slavery and serfdom no longer exist among us. Yet even in our day forms of dependence are not wanting which closely resemble actual slave Ly; We may regard the laws which have been enacted for the protection of labor during the last half cen- tury as a continuation of the legislation in defense of individual libe rty against new forms of slave Aye No one ¢ njoys freedom in the full sense of the term whose life and strength are utilized mere ly as means to others’ ends. Hence, whoever uses men in this way, or attempts tO reduce the m to such a state or to keep tnem in it, acts contrary to the law of justice, which demands that the freedom of others be respected. Finally, we may also add a sixth sphere of interests, which is closely connected with the fourth and fifth, the spiritual life, which expresses itself in convictions, views, beliefs, religion, morality, and habits of life. Persecutions, aspersions, open or con- cealed signs of contempt, scornful neglect, importunate attempts at conversion, are some of the forms of interference with this field. The inner state which tends to such forms of injustice, we are in the habit of calling intolerance. It has its natural roots partly in man’s dependence and need of society, the gregarious instinct, partly in his arrogance and the conceited belief in his own in- fallibility. The majority of men are sure of their ground only when their fellows are going in the same direction, thinking the same thoughts. Hence, they demand that everybody accommodate himself to them. Deviations from the common rule are regarded as disturbances and give offence, and hence all means are employed that seem suited either to brine the dissenter into harmony with his fellows or to remove him from view, and to deter others from imitating his example. Arrogance has the same effect upon the leaders of the masses. They regard it as an intolerable presump-464 RIGHTS tion on the part of an individual to refuse to follow their leader- ship, for does he not thereby tacitly accuse the appointed author- ities of error? What would happen if everybody were to dare such a thing? An example must therefore be made. The opposite habit of mind is called toleration; liberality of mind would per- haps be a more appropriate term. taking of life did not give rise to any eivil liability. But modern legislation has given an action to the suecessors or the estate of g h: the person killed. 2) Personal liberty The right of free choice of location except as restricted by law and restrained lawfully by the proper officers acting in the proper manner. (3) Society and control of family and dependents. (4) Private property. De In personam. (1) Contractual. Rights arising, independently of pre-existing rights, out of legal transactions. (2) Quasi-contractual. Rights to have restitution or compensation for a benefit conferred, imposed by law in order to prevent un- just enrichment of one party at the expense of another. (3) Fiduciary. Rights to have a trust or confidence executed im specie (specifically). These rights are recognized only in courts of equity or in proceedings in equity. (4) Delictal. Rights to compensation arising from violations of pre- existing rights in rem. BLackstonr, ComMENTARIES, I, 129-140. These fares, rights m rem | may be reduced to three principal or primary articles; the right of personal security, the right of per- sonal liberty, and the right of private property. : I. The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. 1. Life is the immediate gift of God, a right inherent by na- ture in every individual; and it begins in contemplation of law as soon as an infant is able to stir in its mother’s womb. 2. A man’s limbs (by which for the present we understand only those members which may be useful to him in fight, and the loss of which alone amounts to mayhem by the common law) are also the gift of the wise Creator, to enable him to protect himself Fre ees450 RIGHTS from external injuries in a state of nature. To these therefore he has a natural inherent right; and they can not be wantonly destroyed or disabled without a manifest breach of civil liberty. Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo, or in order to preserve them. For whatever is done by a man to save either life or member, is looked upon as done upon the highest necessity and compulsion. 3. Besides those limbs and members that may be necessary to a man in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the same natural right, to security from the corporal insults of menaces, assaults, beating and wounding; though such insults amount not to destruction of life and member. !. The preservation of a man’s health from such practices as may prejudice or annoy it; and 5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is enti- tled by reason and natural justice; since, without these, it 1s 1m- possible to have the perfect enjoyment of any other advantage or right. II. Next to personal security, the law of England regards, asserts and preserves the personal liberty of individuals. This personal hi e rty consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in this kingdom, it cannot ever be abridged at the mere discretion of the magistrate, without the express permission of the laws. Here again the language of the great charter is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. \nd many subsequent old statutes expressly direct, that no man all be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common law. By the petition of right, 3 Car. L., it is enacted, that no freeman shall be imprisoned or detained without cause y Lee 1 . 2 shown, to which he may make answer according to law. By 16RIGHTS 481 Gara co dO: if any person be restrained of his libertv bv order or decree of any illegal court, or by command of the kine’s majesty in person, or by warrant of th ecouneil board, or of any of the eouneil, he shall. upon demand of a a his counsel, have a writ of habeas COT pus, tO bring his body before the court of kine’s be neh Yr common pleas, who shall cde termine whether the eause of his commitment be just, and ther upon do as to justice shal] apper tain. And by 31 Car. II. c. 2, comm nly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and entoreed. that, so | MAS) us statute remains unim- peached, no subject of England can be lone detained in prison, except in those cases in which the law require s and justific s such detainer. And lest this act should be evaded by demanding unreasonable bail or sureties for thi prisoner’s appearance, it is declared by 1 W. and M. st. 2, c. 2, that excessive bail ought not to be required. The confinement of the person, in any wise, is an lmprison- ment; so that the keeping aman against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment. And the law so much + lat it a man 1s under duress discourages unlawful confinement, t of imprisonment, which we before explained to mean a compul sion by an illegal restraint ot lib« rty, until he seals a bond or the like, he may allege this duress, and avoid the extorted bond. But if a man be law fully imprisoned, and, either to procure his discharge, OY On any other fair account, seals a bond OF a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. ‘To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate. and express the causes of the commitment, in order to be examined into, if necessary, upon a habeas corpus. If there be no cause expressed, the jailer is not bound to detain the prisoner; for the law judges in that r spect, saith Sir Edward Coke, like Festus, the Roman governor, that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged. A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless 31RIGHTS by the sentence of the law. The king, indeed, by his royal prerog- ative, may issue out his writ ne exeat regno, and prohibit any of his subjects from going into foreign parts without license. This may be necessary for the publie service and safeguard of the commonwealth. But no power on earth except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile and trans- portation are punishments at present unknown to the common law ; and. wherever the latter is now inflicted, it is either by the choice ) escape a capital punishment, or else of the criminal himself, t by the express direction of some modern act of parliament. To this purpose the great charter declares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act. 31 Car. Il, c. 2 (that second Magna Carta, and stable bulwark of our liberties), it is enacted, that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall’ be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas (where they cannot have the full benefit and protection of the common law: but that all such imprisonments shall be illegal. The law is in this respect so benignly and liberally construed for the benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the pub- lic service; excepting sailors and soldiers, the nature of whose employment necessarily implies an exception: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambassador. For this might, in reality, be no more than an honorable exile. III. The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminu- tion, save only by the laws of the land. The original of private property is probably founded in nature, as will be more: fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society ; and are some of those civil advantages, in exchange for which every in- dividual has resigned a part of his natural liberty. The laws ofRIGHTS 483 England are therefore, in point of honor and justice, extremely watchful in ascertainine and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised, or dive sted, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the laud. And by a variety of ancient statutes it is enacted. that no man’s lands or goods shall be seized into the kine’s hands, against the great charter, and the law of the land: and that no man shall be disinherited, nor put out of his franchises or freehold. unless he be duly brought to answer, and be forejudged by course Ot law: and if anything be done to the contrary, lt shal] be Fe- dressed, and holden for none. So great, moreover, is the regard of the law for private property, that it will not authorize the least violation of it: no. not even for the general good of the whole community. If a new road, for instance, were to be made through the erounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without the consent of the owner of the land. In vain it may be ureed, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal. tO be the judge of this common good, and to de- eide whether it be expedient or not. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can. and indeed frequently does, interpose, and compel the individual to acquiesce. But how does 1% int rpose and compel? Not by abso- lutely stripping the subject of his property in an arbitrary man- ner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform. Nor is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. For no subject of England can be con- strained to pay any aids or taxes, even for the defence of the484 RIGHTS but such as are imposed by is representatives 1m parliament. realm or the support of government, his own consent or that of h Tprry, LEADING PRINCIPLES OF Anero-Amertcan Law, § 350. The next right to be examined is one which has as yet no name I shall therefore venture to call it the right of unim- in our law. e right not to be subjecte: d to paired pecuniary condition. It is th loss. not to have the total value of one’s belongings reduced. The protected con dition of fact which forms the con- tent of the ae iS i holding of purchasing power, im whatever form it exists, or the being in such a situation that purchasing power in some form will come into one’s hands, such an arrange circumstances as will bring it to one. In reference to > ps eunlary ment | this right all that a person has is looked upon simply with regard to its value, whereas the rights of property, as above described, : qualities of thines. The two conceptions are econeern th e Be elf A thing may be posse ssed and its phys- evident tly / quite a net. ical Condit ion be preserved unimpaired though it has no vé alue ther hand, a given act may be a clear and whatever; and on the « undoubted violation of the right of property in a thing, though it greatly enhances its value, as ‘f A builds a house upon B’s nd without the latter’s permission, so that the house becomes the property of B, or if he carves B’s block of rough marble into a fne statue. Often, however, the two rights overlap, so that the same act is a violation of both which is the case, for instance, with a tortious taking of property. Violations of the right of unimpaired pecuniary conditions are divided by the civilians into two classes, namely, damnum emer- gens, which is Ae deprivation of purchasing power that one al- ready has, and eee cessans, which is the being prevented from acquiring purchasing power that one would otherwise have ac- quired. This is not a Property Right. This right is usually con- founded with the right of property, at least in so far that viola- tions of it are called violations of the rights of property. Black- stone divides the “absolute rights” of persons into the rights of personal security, personal liberty and private property, which last must be meant to include the right now under discussion. This confusion has probably arisen partly from a failure to no- tice the very important distinction between the deprivation ofRIGHTS 485 right and its violation, which will be more fully discussed in a subsequent chapter, but in relation to which it is sufficient to say here that all protected rights are conclusively presumed t have a pecuniary value, so that the deprivation of a property right or even the preventing of a person from acquiring one will be a violation of the right of unimpaired pecuniary condition. Indeed even a bare possibility or a permissive or facultative right may y have a pecuniary value so that, though such rights are incapabl of being violated, the deprivation of them may be a wrong. Another source of confusion is very likely to be found in the use of the word “property” in a not strictly correct sense to include almost all transferable or actually valuable rights, as will here- after be explained. It may perhaps be said that although the right here called that of unimpaired pecuniary condition is plainly not the same as either of the sub-rights described under the head of property, yet it is a part of the right of property in a wider sense and should be placed as a sub right under that head rather than as an inde- pendent right. This brings the question down to a mere matter of nomenclature and arrangement. But even on this ground it is better to keep the two rights separate. Aside from the argu- ment in favor of this view to be drawn from the analysis of the idea of property in the full sense of that word, including the per- missive and facultative as well as the protected rights, which will form the subject-matter of the next chapter, there is the import- ant fact that this right has duties specially corresponding to it which are largely different from those which correspond to the right of property, while on the other hand the duties correspond- ing to the two subdivisions of the latter right, are in the main, the same. Therefore it is almost necessary to have some common name for the latter which shall exclude the former to be used in the definitions of the various duties. This correspondence of du- ties can be seen by referring to the chapter on Duties Correspond- ing to Rights in Rem, where the various duties are described. Speaking roughly, it may be said that the duties which corre- spond to the right of unimpaired pecuniary condition are gen- erally duties not to act “maliciously” or fraudulently, while thos whieh correspond to rights of property can be broken by conduct which is simply “negligent,” or are even many of them peremp- tory duties.486 RIGHTS This distinction is very clearly brought out in certain cases on trade-marks. A right in a trade-mark is not strictly a prop- erty right under the above description, but it is a distinct and separate protected right of the kind that I shall hereafter describe as “abnormal property rights,” and is contrasted with and related to the rights of unimpaired pecuniary condition in the same manner as true property rights are. Now there are many cases ‘in which the words or devices used are such as cannot be adopted as a legal trade-mark, but defendant is, with fraudulent intent, and where in so closely imitating them as to injure plaintiff,” so doing he commits a wrong. Thus in Coffeen v. Brunton it was said: “The complainant has not obtained a patent for his alleged invention. Any other individual has a right to make and sell the same medicine. Nor has the complainant .an exclusive right to the label. On neither of these grounds can the complainant claim an injunction; but if there be found in the representations of the defendant that his liniment is the same as the Chinese liniment, which recommends it to the public to the injury of the com- plainant, it may be ground for the equitable interposition of this court.” In such eases there is no special right in the words or device, the special duties corresponding to which-ean be violated without anything fraudulent in the conduct of the wrong-doer, but merely the general right not to be subjected to pecuniary loss, to which corresponds, among others, the general duty not to make fraudulent misrepresentations.CHAPTER IX PERSONS? By persons, in law, we mean those entities, natural or artificial, which the law clothes with the power of exercising a legal control over or influ- ence upon the acts of others. Persons are of two classes, natural persons and juristic persons. Today every human being is recognized as a natural person and hence as a legal person, since modern law allows a legal personality to every natural person. Juristic persons are associations of natural persons (or in some parts of the world aggregates of rights or even of objects), which, in certain relations or for certain purposes, the law treats as subjects of legal rights and hence as persons. The most important form is the corporation, which may be public—for example, municipalities, such as cities and towns, school districts, sanitary districts, drainage and irrigation districts—or private, including public service companies, such as railway companies, and ordinary business companies. . Wen Dors Existence Brain LEGALLY ? eV D I B I 2 9 Marxsy, Exrements or Law, secs. 131-1: Persons are human beings capable of rights. To constitute a human being capable of rights two things are necessary, birth and survival of birth. There are expressions to be found in English law books which look as if the foetus, or even the embryo, in the mother’s womb were capable of rights. Thus we find it said that the unborn child may take by devise or inheritance. But I think the true meaning of this is, not that the unborn child really takes, but that the right is reserved for the child until the moment of its birth. BracxstTonr, Commentaries, I, 130. An infant in ventre sa mére, or in the mother’s womb, is sup- posed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an es- 1 Salmond, Jurisprudence, §§ 109-114; Korkunoy, General Theory of Law (Ilastings’ translation) § 28; Gray, Nature and Sources of the Law (1 ed.) §§ 109-114. 487Sa ease ok one ae al ete aa 55 PERSONS tate limited to its use, and to take afterwards by such limitation, ly born. And in this point the civil law as if it were then actus agrees with ours. Dierricu v. NoRTHAMPTON, SUPREME JUDICIAL COURT OF Massa- cHusErts, 1884 (138 Mass. 14) Holmes, Je: = the mother of the deceased slipped upon a defect in a highway of the defendant town, fell, and has had a verdict for her damages. At the time, she was between four and five months advanced in pregnancy, the fall brought on a miscarriage, and the child, although not directly injured, unless by a com- munication of the shock to the mother, was too little advanced in foetal life to survive its premature birth. There was testimony, however, based upon observing motion in its limbs, that it did live for ten or fifteen minutes. Administration was taken out, and the administrator brought this action upon the Pub. Sts. ¢. 52, s. ile for the further benefit of the mother in part or in whole, as next of kin. The court below ruled that the action could not be main- tained; and we are of opinion that the ruling was correct. The plaintiff founds his argument mainly on a statement by Lord Coke, which seems To have been aecepted as law in Eneland, to the effect that if a woman is quick with child, and takes a potion, or if a man beats her, and the child is born alive and dies of the potion or battery, this is murder. 3 Inst. 50; a Hawkeebe eG: Got. s 16 1 Bl. Com. 129, 130. 4 BI. Com) 1985) Beales: Beale, ] Pe Wms, 24 t, 246. Burdet Vi Hopegood, 1 re Wms. 486. Rex v. Senior, 1 Moody C. C. 346. Reqina v. West, 2 0. & K. (ete Os On Cox ©. © 500. We shall not consider how far Lord Coke’s authority should be followed in this Commonwealth, if the matter were left to the common law, beyond observing that it was opposed to the case in 3 Ass. pl. Norer eh ve, Je, il lel III. 23, pl. 18; which seems not to have been doubted by Fitzher- bert or Brooke, and which was afterwards cited as law by Lord Hale. Fitz. Abr., Enditement, pl. 4; Corone, pl. 146. Bro. Abr. Corone, pl. 68. 1 Hale ee OAS Ss For even if Lord Coke’s statement were the law of this Com- menwealth, the question would remain whether the analogy could be relied on for determining the rule of civil liability. ‘Some ancient books seem to have allowed the mother an appeal for the loss of her child by a trespass upon her person. . . . WhichWHEN DOES EXISTENCE BEGIN LEGALLY 189 again others denied. . . . But no ease, so far as we know. has ever decided that, if the infant survived. it could maintain an action for injuries received by it while in its mother’s womb. Yet that is the test of the principle relied on by the plaintiff, who can hardly avoid contending that a pretty large field of litiga- tion has been left unexplored until the present moment. If it should be argued that an action could be maintained in the case supposed, and that, on general principles, an injury transmitted from the actor to a person through his own organic substance, or through his mother, before he became a person, stands on the same footing as an injury transmitted to an exist- ing person through other intervening substances outside him. the argument in this general form is not helped, but hindered, by the analogy drawn from Lord Coke’s statement of the criminal law. For apart from the question of remoteness, the areument would not be affected by the degree of maturity reached by the embryo at the moment of the organic lesion or wrongful act. Whereas Lord Coke’s rule requires that the woman be quick with child, which, as this court has decided, means more than pregnant, and requires that the child shall have reached some degree of quasv independent life at the moment of the act. Commonwealth v. Parker, 9 Met. 263: State v. Coope re OAT Doe For the same reason, this limitation of criminal liability is equally inconsistent with any argument drawn from the rule as to devises and vouching to warranty, which is laid down without any such limitation, and which may depend on different consid- erations. Co. Lit. 390a, and cases cited. Reeve v. Long, 1 Salk. 221; Scatterwood v. Edge, 1 Salk. 229; Harper v. Archer, 4 Sm. & M. 99. If these general difficulties could be got over, and if we should assume, irrespective of precedent, that a man might owe a civil duty and incur a conditional prospective liability in tort to one not yet in being, and if we should assume also that causing an imtant to be born prematurely stands on the same footing as wound- ing or poisoning, we should then be confronted by the question raised by the defendant, whether an infant dying before it was able to live separated from its mother could be said to have become a person recognized by the law as capable of having a locus standi in court, or of being represented there by an administrator. Mar- sellis v. Thalhimer, 2 Paige, 35; Harper v. Archer, ubi supra.Ce ee en nee aoa — 490) PERSONS 4 Kent. Com. 249, n. (b). And this question would not be disposed of by citing those cases where equity has recognized the infant provisionally while still alive en ventre. Lutterel’s case, stated in Hale v. Hale, Prec. Ch. 50; Wallis v. Hodson, 2 Atk. 114, 117. See Musgrave v. Parry, 2 Vern. (10. And perhaps not by showing that such an infant was within the protection of the criminal law. Compare 2 Savigny, System des heutigen Roemischen Rechts, Beylage III. The Pub. Sts. c. 207, s. 9 (St. 1845, ¢. 27, seemingly suggested by Commonwealth v. Parker, ubi supra) punish unlawful attempts to procure miscarriage, acts which of course have the death of the child for their immediate object; and while they greatly increase the severity of the punishment if the woman dies in consequence of the attempt, they make no ‘corresponding distinction if the child dies, even after leaving the womb. ‘This statute seems to us to shake the foundation of the argument drawn from the erim- inal law, and no other occurs to us which has not been dealt with. Taking all the foregoing considerations into account, and further, that, as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too re- mote to be recovered for at all was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintifi’s intestate within its meaning.’ 9. Crvit Deate? BuackstongE, CoMMENTARIES, I, 132. The rights of life and member can only be determined by the death of the person; which was formerly accounted to be either a civil or natural death. The civil death commenced, if any man was banished or abjured the realm by the process of the com- mon law, or entered into religion; that is, went into a monastery, and became there a monk professed: in which case he was abso- lutely dead in law, and his next heir should have his estate. For such banished man was entirely cut off from society: and such a 1See Japanese Civil Code (DeBecker’s transl.) art. 721; Swiss Civil Code (Shick’s transl.) § 31; Drobner v. Peters, 232 N. Y. 220. 2 Compare capitis demuuitio in Roman Law. Moyle, Institutes of Justinian, Execursus I; Muirhead, Historical Introduction to the Private Law of Rome, § 29; Sohm, Institutes of Roman Law (Ledlie’s translation) 2 ed., § 35.monk, upon his profess l CIVIL DEATH 49] on, renounced solemnly all secular con- cerns: and besides, as the popish clergy claimed an exemption from the duties of eivil lif e and the commands of the temporal magis trate, the genius of the sons to enjoy the Enelish laws would not suffer hose per T be nefits of society who secluded themselves from it and refused to submit to its reculations. A monk was ther fore counted religion might, like executors; or if he ] CLUWU1 other dying men, make h } made er mortuus, and none, when he entered into s testament and ; the ordinary might grant admin- istration to his next of kin, as if he were actually dead intestate. And such executors and administrators had the same power, and might bring the same actions for debts due to the religious, and were liable to the same actions for those due from him. as if he were naturally deceased. Nay , so far has this principle been ear- ried, that when one was bound in a bond to an abbot and his suec- cessors, and afterwards made is executors, and professed him- self a monk of the same abbey, and in process of time was himself made abbot the reof: abbot, an action of debt the money due. dead in law, that a 1 here the law gave him, in the capacity of PAS! made against his own executors to recover In short, a monk or religious was so effectually even to a third person, during the life (a nerally ) of one who afterwards became a monk, determined by such his entry into religion; for which reason leases. and other conveyances for life, were usually made to have and to hold for the term of one’s natural life. But, even in the times of popery, the law of England took no cognizance of profession in any foreign country, because the fact could not be tried in our courts: and therefore, since the Reformation, this disability is held to be abol- ished: as is also the disability of banishment, consequent upon abjuration, by Statute 21 Jae. I, c. 28. TT WN OF BaLTIMorE v. Town oF CHESTER, SUPREME CoURT OF Vermont (1881, 53. Vt. 315). Veazey, J.: The term civil death, as used in the books, seemed to involve, first, a total extinction.of the civil rights and relations of the party, so that he could neither take nor hold property, but his estate passe d to his heirs as though he were really dead, or Was forfeited to the crown; and of this kind were the cases of monks professed, and abjuration of the realm. capacity to hold property, or to sue in the king’s courts attended Second, an in-a ene ee 499 PERSONS with forfeiture of the estate and corruption of blood; and the king took the property to the exclusion of the heirs: “eepee There were cases in the English law where the party was sen- tenced to perpetual imprisonment or perpetual banishment for an offense not attended with forfeiture of his estate. . . . And it would seem that perpetual imprisonment or perpetual banishment, without forfeiture of the estate, did not in England produce civil death. As crimes do not work a forfeiture of the estate or corruption of blood in this State, there is lacking that taint from crime which seems to have constituted, at common law, one of the essential elements of civil death. : We have statutes providing what shall be the effect of imprison- ment for crime in certain respects. A life sentence operates as the natural death of a person, so far as it in any way relates to his marriage or the settlement of his estate. Gen. Stats. ch. 120, 19. A sentence for three years or more is a cause for divorce. Ch. 70, 18. For certain purposes the wife is deemed a feme sole while the husband is in state prison. Ch. 71,13. These seem to be all based on the principle that a prisoner’s legal rights, subject to his personal restraint, are unaffected by the imprisonment, ex- cept as specially provided by statute. In several states there are statutes providing that persons adjudged to imprisonment for life shall be civilly dead. See In re Nerac, 39 Cal. 392, 95 Am. Dee. 111; Avery v. Everett, 110 N. Y. 317, 6 Am. St. Rep. 368, 1 L.R.A, 264, 18 N. BE. Rep. 148. 8. Capacity? Complete loss of legal personality must be distinguished from mere in- capacity. A person may have rights and yet be incapable of performing legally valid acts or incapable of incurring legal liability or incapable of incurring responsibility for what would otherwise be accounted violations of absolute duties. A person who is civilly dead has lost his legal identity ; the old legal personality is extinct, and there is either a new one or none at all in its place. But a person whose legal personality is unaffected may have lost, or may not have attained, legal capacity to act in some or in all eases. Accordingly, we distinguish normal persons, per- sons of full and complete capacity, and abnormal persons, persons of partial or limited capacity. Ancient law conceded full capacity to comparatively few. Modern law aims to confer full legal capacity as 1 Tiffany, Persons and Domestic Relations, 2 ed.CAPACITY 193 widely as possible, and in general to create lecal incapacities only where there are natural incapacities also. The only substantial exception in our modern law is that for historical reasons married women were until re- cently under a partial legal incapacity in many jurisdictions. In such 1 ar Jurisdictions they had only a limited power of contracting. With this ral Incapacilles recognized in modern Law coincide sub- exception, the stantially with natural incapacities. The following conditions which create or formerly created legal neapacity, total or partial, are important: (1) infancy or minority; (2) coverture, or the condition of being a 9 married woman; (3) idiocy and lunacy or insanity; (4) conviction of treason or telony; (5) alienage. Horiianp, JuRISPRUDENCE. chap. XIV. The chief varieties of status amone natural persons may be Z. minority: 3. patria referred to the following causes: 1. Sex 5 potestas and manus ; 4. ecoverture: 5. celibacy ; 6. mental defect : le bodily defect; 8. rank, caste, and official position ; 9. race and color; 10. slavery; 11. profession; 12. civil death; 13. illegiti- macy; 14. heresy; 15. foreign nationality; 16. hostile nationality. All of the facts included in this list, which might be extended, have been held, at one time or another, to differentiate the legal position of persons affected by them from that of persons of the normal] type. There are three distinct questions in this connection: (1) capacity for legal transactions, that is, for acts intended to produce legal consequences to which the law will attach the intended consequences; (2) capacity for torts (acts involving civil liability for infringements of rights in rem): (3) capacity for crimes (breaches of absolute duties involving penal conse- quences). Capacity for rights is also, in modern law, a wholly distinet question. 4. Inranoy? BLacksTonr, ComMENTARIES, I, 464. 3. Infants have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as wel] 1See Mack, The Juvenile Court, 23 Harvard Law Rev. 104; Hart, Juvenile Court Laws in the United States: Breckinridge and Abbott, The Delinquent Child and the Home; Flexner and Baldwin, Juvenile Courts and Probation; Eliot, The Juvenile Court and the Community.Se Nepean aa ent nnt Fiwerres 494 PERSONS by law as otherwise: but he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be any person who will undertake the infant’s cause, and it frequently happens, that an infant, by his prochein amy, institutes a suit in equity against a fraudulent guardian. In the age of fourteen years may be criminal cases an infant of capitally punished for any capital offence: but under the age of seven he cannot. The period between seven and fourteen is sub- ject to much uncertainty: for the infant shall, generally speaking, be judged prima facte innocent; yet if he was doli capax, and could discern between good and evil at the time of the offense com- mitted, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or dis- cretion. And Sir Matthew Hale gives us two instances, one of a eirl of fourteen, who was burned for killing her mistress ; another of a boy still younger, that had killed his companion, and hid him- self, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil: and ‘n such cases the maxim of law is, that malitia supplet aclatem. So also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judges. With regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in gen- eral, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases. [It is generally true, that an infant can neither alien his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract that will bind him. But still to all these rules there are some exceptions: part of which were just now mentioned in reck- oning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite as a general specimen of the whole. And first, it 1s true, that infants cannot alien their estates: but infant trustees or mort- eagees, are enabled to convey, under the direction of the court of chancery or exchequer, oz other courts of equity, the estates they hold in trust or mortgage, to such person as the court shall appoint. Also it is generally true, that an infant can do no legal act. An495 infant may also purchase lands, but his purchase is incomplete: ] 1° - ror when he comes to age, he may either agree or dlsacree to lt, ~ - ln . ] ean as he thinks prudent or proper, without alleging any reason: and so may his heirs after him, if he dies without h: ving complet d his agreement. It 1S, further, generally true that an ll fant, uncler 1 atterwarcds voidable: twenty-one, ean make no deed but yet In some cases he may bind himself apprentice by deed in- dented or indentures, for seven years; and he may by deed or will appoint a guardian to his children, if he has any. Lastly, it is generally true that an infant can make no other contract that will | ind him: yet he may bind hims« lf to pay for his necessary meat, drink, ap] arel, physie, and oth r necessarit Simul d likewise for his good teaching and instruction whereby he may profi afterwards. And thus much, at present. for the privileges and SNELL, PrrnoreLes or Equrry, chap. 22, § 1, The origin of the jurisdiction of the Court of Chancery over infants has been a matter of much juridical cise On. The better opinion seems to be, that this jurisdiction has its just and rightful foundation in the prerog tive of the Crown, flowing from its general power and duty as parens patriw, to protect those who have no other lawful protector. Partaking, as it does, more of the nature of a judicial administration of rights and duties, in foro consctentie than of strict executive authority, 1t would nat- urally follow, ea ratione, that it should be exercised in the Court of Chancery, as a branch of the general jurisdiction originally con- fided and delegated to that court. If a bill be filed or action commenced relative to an infant’s estate or person, the court acquires jurisdiction, and the infant, whether plaintiff or defendant, and even during the life of its father, or of its testamentary euardian, immediately becomes a ward of the court. The Court of Chanes ry will appoint a suitable guardian to an infant where there is none other, or none other who will or ean act; but, as a general rule, it will not do so unless where the infant has, property, although it may do so under exceptional circumstances. “Tt is not, however,” as observed by Lord Eldon, “from any want of jurisdiction that it does not act where it has no property of an infant, but from a want of the means to exercise its jurisdiction,496 PERSONS because the court cannot take on itself the maintenance of all the children in the kingdom. It can exercise this jurisdiction usefully and practically only where it has the means of doing so—that is to say, by its having the means of applying property for the use and maintenance of the infant. In general, parents are intrusted with the custody and educa- tion of their children, on the natural presumption that the children will, by their parents, be properly treated, and due care be taken of their education, morals and religion; but if the court has rea- sonable grounds for believing that the children would not be prop- erly treated, it “would interfere even with parents, upon the prin- ciple that preventing justice is preferable to punishing justice.” But the court requires a strong case to be made out before it will interfere with a father’s guardianship. Accordingly, where the father is insolvent, or his character and conduct are such as are likely to contaminate the morals of his children, or where he 1s endangering their property or neglecting their education, or is guilty of ill-treatment and cruelty to them, it is not a matter of course to take the father’s guardianship away, but if the danger to the children is proximate and serious, then the custody of the children will be committed to a person to act as guardian. The guardian will be allowed to regulate the mode of, and te select the place for, the education of his ward, whose obedience will be enforced by the court. And the court will aid guardians are detained from them. If the guardian wishes to take his ward out of the jurisdiction of the court, and in some other cases where there is danger of in- jury to the ward’s person or property, the court will always take security from the guardian before sanctioning his removal out of the jurisdiction. [In the United States the Probate Courts appoint guardians for infants and control their conduct. The jurisdiction of equity therefore, in this matter is really not exercised in most of the States except in the matter of relief against guardians at the suits of infants for their property or estates. |? 1 The portion in brackets was added by an American editor.COVERTURE 5. CoverturE Brackstonr, Comwmenrantigs, I. 449. By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman js suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and 1 cover, she performs everything; and is t] eretore called in our law- French a fe moe-covert, far mona LiLo CO-0 pe rla N is sald to be covelrt- baron, or under thi prote tion and influence ot her husband, her baron, or lord, and her condition during her marriage is called her coverture. Upon this principle, of a union of person in hus- band and wife, depend almost all the legal rights, duties. and dis- abilities, that either of them acquire by the marriage. J] speak not at present of the rights of property, but of such as are m« rely personal. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the erant would be to suppose her separate existence; and to covenant with her. would be only to covenant with himself: and therefore it is also general- ly true, that all compacts made between husband and wife. when single, are voided by the intermarriage. A woman indeed may be attorney for her husband; for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath anything to his wife by will; for that cannot take effect till the coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself ; and, if she contracts debts for them, he is obliged to pay them: but for anything besides necessaries he is not chargeable. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries; at least if the person who furnishes them is sufficiently apprised of her elopement. If the wife be indebted before marriage, the husband is bound after- wards to pay the debt; for he has adopted her and her cireum- stances together. If the wife be injured in her person or her prop- erty, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued without making the husband a defendant. There is in- deed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished, for then he is dead in law; and, the husband being thus disabled to 32198 PERSONS sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defense at all. In criminal prosecutions, it is true, the wife may be indicted and punished separately ; for the union is only a civil union. But in trials of any sort they are not allowed to be witnesses for, or against, each other: partly because it is impossible their testimony should be indifferent, but principally because of the union of person; and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, “nemo in propria causa testis esse debet;’ and if against each other, they would contradict another maxim, “nemo tenetur seipsum accusare.” But where the offense is directly against the person of the wife, this rule has been usually dispensed with; and therefore, by statute 3 Hen. VII. ce. 2. in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife: because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; which the ravisher here would do, if, by forcibly marrying a woman, he could prevent her from being a witness who is perhaps the only witness to that very ract. In the civil law the husband and the wife are considered as two distinct persons, and may have separate estates, contracts, debts, and injuries; and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband. But though our law in general considers man and wife as one person, yet there are some instances in which she is separately eon- sidered; as inferior to him, and acting by his compulsion. And therefore all deeds executed and acts done by her, during her cover- ture, are void; except it be a fine or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary. She cannot by will devise lands to her hus- band, unless under special circumstances; for at the time of mak- ing it she is supposed to be under his coercion. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her: but this extends not to treason or murder. The husband also, by the old law, might give his wife moderate correction, For as he is to answer for her misbehavior, the lawCOVERTURE 499 thought it reasonable to intrust him with this power of restraining her, by domestic « hastisement, in the same mod ration that a man is allowed to correct his apprentices or ehildr n; tor wnom the master or parent is also liable, in some eases, we to answer. Hut this power ot eorrecti mn was Con 1] ed within reasonable bouncls, and the husband was prohibited trom using any violence to his wife, rr0onIsS wumvoris al Cr Gua aa VITUM. CX CWUSG TT: LINDWVS swe. licite et rationabiliter pertinet. The civil law gave the hus band the same, or a larger, authority over his wite: allowing him, for some misdemeanors, LAL llis et Fustibus acriter ververare uxorem: for others, only modicam castigationem adhabere. But with us, in the politer reig of Charles the Second, this power of correction began to be clou Ct d: ‘ nd a wite may how have Sé curity of the peace against her husband or, in return, a husband against his wite. Yet the lower rank ot pe ple, who were always fond ot the old common law, still claim and exert their ancient privilege: and the courts of law will still permit a husband to r strain a wife of her liberty, in Case ot any &Yross misbel avl1or. Dicey. Law AND OPINION IN ENGLAND, 373-381. In 1800 the Court of Chancery had been engaged for ec nturies ‘or a married woman to hold in the endeavor to make it possible I property independently of her husband, and to exert over this property the rights which could be exercised by a man or an un- married woman. bet? 0b: however, be noted, that the aim otf the Court of Chancery had throughout been not so much to 1icrease the property rights of marrit d women generally as to enable a per- son (e.g. a father) who gave to, or settled property on a woman, to ensure that she. even though married, should possess it as her own, and be able to deal with it separate ly from, and in l pe ndently of, her husband. who, be it added, was, in the view of equity lawyers, the “enemy” against whose exorbitant common-law rights the Court of Chancery waged constant war. By the early part of the certainly before any of the Married nineteenth century, an Women’s Property Acts, 1870 1893, came into operation, the Court of Chancery had completely achieved its object. A long course of judicial legislation had at last given to a woman, over property settled for her separate use, nearly all the rights, and a vood deal more than the protection, possessed in respect of any property by a man or a feme sol This anecess was achieved500 PERSONS after the manner of the best judge-made law, by the systematic and ingenious development of one simple principle—namely, the principle that, even though a person might not be able to hold property of his own, it might be held for his benefit by a trustee whose sole duty it was to carry out the terms of the trust. Hence, as regards the property of married women, the following results, which were attained only by cde orees. Property given to a trustee for the separate use of a woman, whether before or after marriage, is her separate property—that is, it is property which does not in any way belong to the husband. At common law indeed it is the property of the trustee, but it is property which he is bound in equity to deal with according to the terms of the trust, and therefore in accordance with the wishes or directions of the woman. Here we have constituted the “separate property,” or the ‘“‘separate estate” of a married woman. If, as might happen, property was given to or settled upon a woman for her separate use, but no trustee were appointed, then the Court of Chancery further established that the husband him- self, just because he was at common law the legal owner of the property, must hold it as trustee for his wife. It was still her separate property, and he was bound to deal with it in accordance with the terms of the trust, z.e. as property settled upon or given to her for her separate use. The Court of Chancery having thus created separate property for a married woman, by degrees worked out to its full result the idea that a trustee must deal with the property of a married woman in accordance with her directions. Thus the Court gave her the power to give away or sell her sepa- rate property, as also to leave it to whomsoever she wished by will, and further enabled her to charge it with her contracts. With regard to such property, in short, equity at last gave her, though in a round-about way, nearly all the rights of a single woman. But equity lawyers came to perceive, somewhere towards the be- ginning of all the nineteenth century, that though they had achieved all this, they had not given quite sufficient protection to the settled property of a married woman. Her very possession of the power to deal freely with her separate property might thwart the object for which that separate property had been cre- ated; for it might enable a husband to get her property into his hands. Who could guarantee that Barry Lyndon might not per- suacde or compel his wife to make her separate property chargeableCOVERTURE 501 for his debts, or to sell it and give him the proceeds? This one weak point in the defenses which equity had thrown up against the attacks of the enemy was rendered unassailable by the astute- ness, as it is said, of Lord Thurlow. He invented the provision, constantly since his time introduced into marriage settlements or wills, which is known as the restaint on anticipation. This clause, if it forms part of the document settling property upon a woman for her separate use, makes it impossible for her during ecoverture cither to alienate the property or to charge it with her debts. Whilst she is married she cannot, in short, in any way anticipate her income, though in every other respect she may deal with the pro] erty as he r own. She may, for example, beque ath or devise her property by will, since the bequest or devise will have no oper- ation till marriage has come to an end. But this restraint, or fetter, operates only during coverture. It in no way touches the property rights either of a spinster or of a widow. The final re sult, then, of the judicial legislation earried through by the Court of Chancery was this. A married woman could possess separate property over which her husband had no control whatever. She eould, if it was not subj ct to a restraint on anticipation, dispose of it with perfect freedom. If it was subject to such restraint, she was. durine coverture, unable to exercise the full rights of an owner, but in compensation she was absolutely gvuarded against the possible exactions or persuasions of her husband, and received a kind of protection which the law of England does not provide for any other person except a married woman. [t is often said, even by eminent lawyers, that a married woman was in respect of her separate property made in equity a feme sole. But this statement, though broadly speaking true, is not accurate, and conceals from view the fact (which is of importance to a stu- dent who wishes to understand the way in which equity has told upon the form and substance of the Married Women’s Property Acts, 1870-1893) that the process of judicial legislation which eave to a married woman a separate estate, led to some very singu- lar results. Three examples will make plain my meaning. First.—The restraint on anticipation which today, no less than before 1870, is constantly to be found in marriage settlements, has (as already pointed out) oiven to a married woman a strictly anomalous kind of protection. Secondly.—Equity, whilst conferring upon a married womanne ae ae Emeka 502 PERSONS the power to dispose of her separate property by will, gave her no testamentary capacity with respect to any property which was not in technical strictness separate property. : Thirdly.—Equity never in strictness gave a married woman contractual capacity; it never gave her power to make during coverture a contract which bound herself personally. What it did do was thus: it gave her power to make a contract, e.g., eur a debt, on the eredit of separate property which belonged to her at the time when the debt was incurred, and it rendered such sepa- rate property liable to satisfy the debt. Hence two curious conse- quences. The contract of a married woman, in the first place, even though intended to bind her separate property, did not in equity bind any property of which she was not possessed at the moment when she made the contract, e.g. incurred a debt. The contract of a married woman, in the second place, if made when she possessed no separate property, in no way bound any separate property, or indeed any property whatever of which she might subseque ntly become possessed. In spite, however, of these anomalies, there would have been little to complain of in the law, with regard to the property of married women, if the Court of Chancery had been able to super- sede the common law and to extend to all women on their marriage the protection which the rules of equity provided for any woman whose property was the subject of a marriage settlement. But the way in which equity was developed as a body of rules, which in theory followed and supplemented the common law, made such a thoroughgoing reform, as would have been involved in the super- seding of the common law, an impossibility. As regards a mar- ried woman’s property the two systems of common law and of equity co-existed side by side unconfused and unmingled till the reform introduced by the Married Women’s Property Acts. Hence was created in practice a singular and probably unforeseen in- equality between the position of the rich and the position of the poor. A woman who married with a marriage settlement,—that is, speaking broadly, almost every woman who belonged to the wealthy classes,—retained as her own any property which she possessed at the time of marriage, or which came to her, or was acquired by her during coverture. She was also, more generally than not, amply protected by the restraint on anticipation againstCOVERTURE 503 both her own weakness and her husband’s extravagance or rapa- city. A woman, on the other hand, who married without a mar- riage settlement—that is, speaking broadly, every woman belong- ing’ to the less wealthy or the poorer classes- “Was by her marriage deprived of the whole of her income, and in all probability of the whole of her pro] erty. Che earnings acquired by her own labor were not her own, but belonged to her husband. There came, therefore, to be not in theory but in fact one law for the rich and another for the poor. The daughters of the rich enjoy d. for the most part, the considerate protection of equity, the daughters of the poor suffered under the severity and injustice of the common law. New Yorx Domestic Rerations Law, §§ 50, 51. §$ 50. Property, real or personal, now owned by a married woman, or hereafter owned by a woman at the time of her mar- riage, or acquired by her as prescribed in this chapter, and the Tents. issues, proceeds and profits thereof, shall continue to be her sole and separate property as if she were unmarried, and shall not be subject to her husband’s control or disposal nor liable for his debts. § 51. A married woman has all the rights in respect to prop- erty, real or personal, and the acquisition, use, enjoyment and dis- position thereof, and to make contracts in respect thereto with any person, including her husband, and to carry on any business, trade or occupation, and to exercise all powers and enjoy all rights in respect thereto and in respect to her contracts, and be liable on such contracts, as if she were unmarried; but a husband and wife ean not contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife. All sums that may be recovered in actions or special proceedings by a married woman to recover damages to her person, estate or character shall be the separate property of the wife. Judgment for or against a married woman, may be rendered and enforced, in a court of record, or not of record, as if she was single. A married woman may confess a judgment specified in section one thousand two hundred and seventy-three of the code of civil procedure.PERSONS 6. Lunacy: [pi1ocy BLACKSTONE, CommENTARIES, I, 304. A lunatic, or non compos mentis, is one who hath had under- standing but by disease, grief, or other accident, hath lost the use of his reason. A lunatic is indeed properly one that hath lucid intervals, sometimes enjoying his senses, and sometimes not, and that frequently depending upon the change of the moon. But under the general name of non compos mentis (which Six Edward Coke says is the most legal name) are comprised not only lunatics, but persons under frenzies; or who lose their intellects by disease ; those, that grow deaf, dumb, and blind, not being born so; or such, in short, as are judged by the court of chancery incapable of con- ducting their own affairs. To these also, as well as idiots, the king is guardian, but to a very different purpose. For the law always imagines that these accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for the unfortunate persons, to protect their property, and to account to them for all profits received, if they recover, or after their decease to their representatives. And therefore it is declared by the statute 17 Edw. II. ¢. 10, that the king shall provide for the custody and sus- tentation of lunatics, and preserve their lands and the profits of them for their use, when they come to their right mind; and the king shall take nothing to his own use; and, if the parties die in such estate, the residue shall be distributed for their souls by the advice of the ordinary, and of course (by the subsequent amend- ments of the law of administration) shall now go to their exec- utors or administrators. On the first attack of lunacy, or other occasional insanity, while there may be hope of a speedy restitution of reason, it is usual to confine the unhappy objects in private custody under the direction of their nearest friends and relations; and the legislature, to pre- vent all abuses incident to such private custody, hath thought proper to interpose its authority by statute 14 Geo. III. ¢. 49, (continued by 19 Geo, III. c. 15,) for regulating private mad- -houses. But when the disorder is grown permanent, and the cir- cumstances of the party will bear such additional expense, it is proper to apply to the royal authority to warrant a lasting confine- ment. he method of proving a person non compos is very similar toLUNACY; IDIOCY 505 that of proving him an idiot. The lord chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intrusted, upon petition or information, grants a commission in hature of the writ de idiota inquire ndo, to Inquire into the party’s state ot mind ; and if he be found non CONUpOS, he usually commits the care of his person, with a suitable allowance for his maintenance. to some friend, who is then ealled his committee. Conviction oF FELONY ~I Presspury v. Hurx, Supreme Court of Missouri, 1863 (54 Mo. Zo ). Bates. J.: The statute of Missouri which enacts that a sentence of imprisonment in the penitentiary for a term of less than life, suspends all elvll rights of the person SO sentenced during the term thereof, applies only to sentences in the State courts. We know of no similar act as to sentences by the Federal courts, and s no such suspension. A sentence for life without such act there even would not have the effect of making the convict civilly dead. (Platner v. Sherwood, 6 John. Chy. 118.) Here the sentence was for one year. It is of no consequence that Woltf’s offense might have been punished by a State court (if it be so): for it is not the facet of criminality which, in any case, suspends his rights, but the convic- tion and sentence to the penitentiary. BLACKSTONE, ComMENTARIES, LV, 380, 388. When sentence of death, the most terrible and highest judgment in the laws of England, is pronounced, the immediate inst parable consequence from the common law is attainder. For when it 1s now clear beyond all dispute that the eriminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no further care of him than barely to see him executed. He is then ealled attaint, attine- lus, stained or blackenc ad. He is) no longer ot any eredit or reputa- tion: he cannot be a witness in any .court ; neither is he capable of performing the functions of another man; for, by an anticipa- tion of his punishment, he is already dead in law. This is after judgment; for there is great difference between a man convictedalee PERSONS 506 and attained: though they are frequently, through inaccuracy, confounded together. After conviction only, a man is liable to none of these disabilities; for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment; the indictment may be erroneous, which will render his euilt uncertain, and thereupon the present conviction may be quashed; he may obtain a pardon, or be allowed the benefit of clerey; both which suppose some latent sparks of merit which plead in extenuation of his fault. But when judgment is once pronounced, both law and fact conspire to prove him completely euilty; and there is not the remotest possibility left of anything to be said in his favor. Upon judgment, therefore, of death, and not before. the attainder of a criminal commences; or upon such circumstances as are equivalent to judgment of death; as judg- ment of outlawry on a capital crime pronounced for abseconding or fleeing from justice, which tacitly confesses the guilt. And therefore, either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted. The con- sequences of attainder are forfeiture and corruption of blood. Another immediate consequence of attainder is the corruption of blood, both upwards and downwards, so that an attainted person , can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir; but the same shall escheat to the lord of the fee, subject to the king’s superior right of forfeiture: and the person attainted shall also obstruct all descents to his posterity, wherever they are obliged to derive a title through him to a re- moter ancestor. [Forfeiture and corruption of blood are now abolished. | 8. ALIENAGE 2 Kent, Commentarins, II, 53, 61, 63. We proceed next to consider the disabilities, rights, and duties of aliens. . (1) Disabilities of Aliens.—An alien cannot acquire a title to real property by descent, or created by other mere operation of law. The law quae nihil frustra never casts the freehold upon an alien heir who cannot keep it. This is a well-settled rule of the common law. The right to real estate by descent is governed byALIENAGE 5O7T the municipal law of the individual states. Nor can an alien take as tenant by the curtesy or in dower. It is understood to be the general rule, that even a natural-born subject cannot take by repre sentation from an alien, because the alien has no inheritable blood through which a title can be deduced. If an alien purchase land, or if land be devised to him, the general rule is, that in these cases he may take and hold, until an inquest of office has been had; but upon his death the land would instantly and of necessity (as the frechold cannot be kept in abeyance), without any inquest of office, escheat and vest in the state, because he is incompetent to transmit by hereditary descent. Though an alien may purchase land, or take it by devise, yet he is exposed to the danger ot being divested of the fee, and of having his lands forfeited to the state, upon an inquest of office found. His title will be good against every person but the state, and if he dies before any such proceeding be had, we have seen that the inheritance cannot descend, but escheats, of course. If the alien should undertake to sell to a citizen, yet the prerogative right of forfeiture is not barred by the alienation, and it must be taken to be subject to the right of the government to seize the land. His conveyance is eood as against himself, and he may, by a fine, bar persons in reversion and remainder, but the title is still voidable by the sovereign upon office found. Aliens are capable of acquiring, holding, and transmitting mov- able property, in like manner as our own citizens, and they can bring suits for the recovery and protection of that property. They may even take a mortgage upon real estate by way of security tor a debt, and this I apprehend they may do without any statutory permission, for it has been the English law from the early ages. It is also so held in the Supreme Court of the United States, and that the alien creditor is entitled to come into a court of equity to have the mortgage foreclosed, and the lands sold for the pay- ment of his debt. The question whether the alien in such a case could become a valid purchaser of the mortgaged premises sold at auction at his instance, is left untouched; and as such privilege is not necessary for his security, and would be in contravention of the general policy of common law, the better opinion would seem to be that he could not, in that way, without special provision by statute, become the permanent and absolute owner of the fee. Even alien enemies, resident in the country, may sue and beneat nak yee eed eae saa anes eens 508 PERSONS sued as in time of peace; for protection to their persons and prop- erty is due and implied from the permission to them to remain, without being ordered out of the country by the President of the United States. The lawful residence does, pro hac vice, relieve the alien from the character of an enemy, and entitles his person and property to protection. The effect of war upon the rights of’ aliens we need not here discuss; as it has been already con- sidered in a former part of this course of lectures, when treating of the law of nations. During the residence of aliens amongst us, they owe a local allegiance, and are equally bound with natives to obey all general laws for the maintenance of peace and the preservation o1 f order, and which do not relate specially to our own citizens. This is a principle of justice and of public safety universally ado} yted; and if they are guilty of any illegal act, or involved in disputes with our citizens, or with each other, they are amenable to ae ordinary tribunals of the country. 9. Jurtstic Persons’ Garrts, Screncre or Law (Kocourek’s translation ) Sab: There are. however, certain entities which are not human beings and which still have interests to which the law assigns legal pro- tection. In other words, legal systems recognize the possession of rights which are not interests of individual persons but of other entities, or aggregates of persons or property. It is not necessary that legal systems shall create such interests. The ideals and necessities of mankind recognize them before the law. Legal order under certain conditions invests such interests as are found to exist in fact with the protection necessary to trans- form such interests into legal advantages. The entities whose an interests are in such manner protected are called juristic (fictitious, artificial, or moral) persons in contradistinction to natural persons. Juristic persons are either aggregates of per- Ee 1 Gierke, Political Theories of the Middle Age (Maitland’s translation ), xvili-xliii; Markby, Elements of Law, §§ 131-135; Salmond, Jurisprudence, §§ 115-120; Freund, The Legal Nature of Corporations ; Hohfeld, Funda- mental Legal Conceptions, 196-202; Machen, Corporate Personality, 24 Har- vard Law Rey. 253, 347; Laski, The Personality of Associations, 29 Harvard Law Rev. 404. :JURISTIC PERSONS 5O9 sons (universitates personarum ) or aggregates of things (wn2versi- tates rerum ). Private law recognizes the following classes of juristic persons: 1. The state, or the governing social entity, in its private legal relations. In this aspect the dominant entity does not authorita i tively represent its interests by virtue of its attribute of sovereion ty. Its activity here is the same as that of any free citizen in the state in the satisfactio1 of private economic necessities. In this activity a state is called the fiscus, or treasury, in contradistinction to the activity in which the state represents public interests of th community by sovereign law in the governing’ sense (res publica 2. Public communities within the state, which represent public interests ; thus, municipalities, parishes, towns, provinces and sim] ar communities. 3. Aggregates of persons, such as associations (corporations ) arising from joint concurrence or agreement, which have legal in- terests, in that the law o1Vves them a le oa] position. According tO the conditions of the legal recognition of their juristic personality 17 : . “14 : haa sueh corporations (collegia, corpora) are: ouilds and industrial! fraternities, and those privil ced aggregates of persons which are der state supervision (collegia sodalicia); for example, the Roman collegia rune raticia, and modern associations tor accident, age and health insurance. . . . These associations under state recognition have social objects as opposed to objects of the state or of individuals. 4. Associations for profit (societates quaestuariae ). which the law specially invests with the capacity for having rights; thus, share companies, registered associations, and mining’ companies, in the modern law. 5. Churches, churchly associations and institutions. 6. Foundations, that is, complexes of property which are recog- nized by the law as holders of rights for the accomplishment of certain limited objects: piae causae, ete.’ Kent, Commenranrtins, II, 268, 2738, 274. A corporation is a franchise possessed by one or more individu- als, who subsist, as a body politic, under a special denomination, 1 These are not regarded as persons by the common law. With us they are administered by trustees.510 PERSONS and are vested, by the policy of the law, with the capacity of per- petual succession, and of acting in several respects, however numerous the association may be, as a single individual. The object of the institution is to enable the members to act by one united will, and to continue their joint powers and property in the same body, undisturbed by the change of members, and without the necessity of perpetual conveyances, as the rights of members pass from one individual to another. All the individuals compos- ing a corporation, and their successors, are considered in law as but one person, capable, under an artificial form, of taking and con- veying property, contracting debts and duties, and of enjoying a variety of civil and political rights. One of the peculiar properties of a corporation is the power of perpetual succession ; for, in judg- ment of law, it is capable of indefinite duration. The rights and privileges of the corporation do not determine or vary, upon the death or change of any of the individual members. They continue as long as the corporation endures. It is sometimes said that a corporation is an immortal as well as an invisible and intangible being. But the immortality of a corporation means only its capacity to take in perpetual succession so long as the corporation exists. It is so far from being immortal, that it is well known that most of the private corporations recently created by statute are limited in duration to a few years. There are many corporate bodies that are without limitation, and, conse- quently, capable of continuing so long as a succession of individual members of the corporation remains and can be kept up. Corporations are divided into aggregate and sole. A corpora- tion sole consists of a single person, who is made a body corporate and politic, in order to give him some legal capacities and advan- tages, and especially that of perpetuity, which as a natural person, he cannot have. person; (3) or to charge any person upon any agreement made upon consideration of marriage; (4) or upon any contract or sale of lands, tenements or hereditaments, or any interest in or concern- ing them; (5) or upon any agreement that is not to be performed within the space of one year from the making thereof; (6) unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. V. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June all devises en te tie and bequests of any lands or tenements, devisable either by force of the statute of wills, or by this statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his ex- press directions, and shall be attestetl and subscribed in the pres- ence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect. VI. And moreover, no devise in writing of land, tenements or hereditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June be revocable, otherwise than by some other will or codicil in writing or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same by the testator himself, or in his presence and by his direc- tions and consent; (2) but all devises and bequests of lands and tenements shall remain and continue in foree, until the same be burnt, cancelled, torn or obliterated by the testator, or his direc-FORM 519 tions. in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, sioned in the presence of three or four witnesses, declaring the same; any former law or usage to the contrary notwithstanding. VII. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June all declara- tions or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who 1s by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none eftect. Waleile Provided always, That where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law. or be transferred or extinguished by an act or operation of law, then and in every such case such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made; anything herein before contained to the contrary notwithstanding. LX. And be it further enacted, That all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assioning the same, or by such last will or devise, or else shall likewise be wholly void and of none effect. Awes. LAw AND Morats, 22 Harvard Law Rev. 97, 100. We have seen how in the law of crimes and torts the ethical quality of the defendant’s act has become the measure of his lia- bility instead of the mere physical act reeardless of the motive or fault of the actor. The history of the law of contracts exhibits a similar transformation in the legal significance of the written or spoken word. By the early law, 10 the absence of the formal word, there was no liability, however repugnant to justice the result might be. On the other hand. if the formal word was oiven, then the giver was bound, however unrighteous, by reason of the eir- cumstances under which he gave it, it might be to hold him to his promise. The persistence ot this unmoral doctrine 1 As late as 1606 the plaintiff brought an lefendant, a goldsmith, sold him a stone, 1 the Enelish law is most surprising. action alleging that the affirming it to be a bezoar stone, whereas it was not such a stone. The court gave judgment against the plaintiff on the eround “thatSN a 520 ACTS the bare affirmation that it was a bezoar stone, without warranting it to be so, is no cause of action.” The buyer reasonably supposed that he was getting a valuable jewel for his hundred pounds, but he must pocket his loss, since the goldsmith did not use the magic words “I warrant” or “I undertake.” Today, of course, the sale of a chattel as being of a particular description implies a warranty or undertaking to that effect. But the notion of implying a prom- ise from the conduct of the party was altogether foreign to the mental operations of the medieval lawyer. For this reason, the buyer took the risk of the seller’s not being the owner of the prop- erty sold unless the seller expressly warranted the title. In the case of goods the mere selling as owner is today a warranty of title, but the rules of real property not being readily changed, the ar- chaic law still survives in the case of conveyances of land, the erantee being without remedy if there is no covenant of title in the deed. The inability to imply a promise from the conduct of the parties explains this remark of Chief Justice Brian: “If I bring cloth to a tailor to have a cloak made, if the price is not ascertained beforehand that I shall pay for the work, he shall not have an ac- tion against me.” Similarly, in the reign of Elizabeth a gentle- man of quality put up at an inn with his servants and horses. But no price was agreed upon for his accommodations. The gentleman declining to pay, the inn-keeper could obtain no relief at law. Neither the customer nor the guest had made an express promise to pay. The law could not continue in this state. It was shocking to the moral sense of the community that a man should not pay for what was given him upon the mutual understanding that it should be paid for. Accordingly the judges at length realized and de- clared that the act of employing a workman, ordering goods, or putting up at an inn meant, without more, an undertaking to make reasonable compensation. There is a certain analogy between the ethical development of the law and that of the individual. As early law is formal and unmoral, so the child or youth is wont to be technical at the ex- pense of fairness. WHEELER v. Kianour, Supreme JupicraL Court or Massa- CuusETtTs, 1901 (178 Mass. 141). Houmes, C. J.: This is an action for the price of one hundred and seventy-four pairs of shoes, and the question raised by theFORM 521 defendants’ exceptions is whether there was any evidence, at the trial, of a purchase by the defendants. : The evidence of the sale was this. The shoes had been sent to the defendants on the understanding that a bargain had been made. It turned out that the parties disagreed, and if any con- tract had been made it was repudiated by them both. Then, on September fe eu: the plaintiffs wrote to the di f¢ ndants that they had written to their agent, Young, to inform the defendants that the latter might keep the goods “‘at the price you offer if you send us net spot cash at once. If you cannot send us»cash draft by return mail, please return the goods to us immediately via Wabash vo through New York City and it would take three or four weeks to get them.” On September 15. the defendants enclosed a draft for the price less & Fitchburg Railroad, otherwise they will four per cent, which they said was the proposition made by Young. On September LS the plaintiffs replied, returning’ the draft, saving that there was no deduction of four per cent, and adding, “‘if not satisfactory please return the goods at once by freight via Wabash & Fitchbure Railroad ants on or before September 20, but the plaintiffs heard nothing more until October AD. when they were notitied by the railroad This letter was received by the defend- company that the voods were in Boston. It should be added that when the ooods were sent to the defend- ants they were in good condition, new fresh and well packed, and that when the plaintiffs ope ned the returned eases their contents were more or less defaced and some pairs ot shoes were gone. It fairly might be inferred that the cases had been opened and the contents tumbled about by the defendants, although whether be fore or after the plaintiffs’ final offer perhaps would be little more than a guess. Both parties invoke Hlobbs V. Massasoit Whip Gow L58 Mass. 194. the defendants for the suggestion on p. 197 that a stranger by sending’ goods to another cannot impose a duty ot notineation upon him at the risk of findine himself a purchaser against his own will. We are of the opinion that this proposition gives the defendants no help. The parties were not strangers to each other. The goods had not been foisted upon the defendants, but were in their custody presumably by their previous assent, at all events by their assent implied by their later conduct. The relations between the parties were so far similar to those in the case cited, that ifet el ar a SS 522 ACTS the plaintiffs’ offer had been simply to let the defendants have the shoes at the price named, with an alternative request to send them back at once, as in their letters, the decision would have ap- plied, and a silent retention of the shoes for an unreasonable time would have been an acceptance of the plaintiffs’ terms, or, at least would have warranted a finding that it was. ; The defendants seek to escape the effect of the foregoing prin- ciple, if held applicable, on the ground of the terms offered by the plaintiffs. They say that those terms made it impossible to accept ts’ offer, or to give the plaintiffs any reasonable eround the plainti for understanding that their offer was aecepted, otherwise than by promptly forwarding the cash. They say that whatever other liabilities they may have incurred they could not have purported to accept an offer to sell for cash on the spot by simply keeping the eoods. But this argument appears to us to take one half of the plaintiffs’ proposition with excessive nicety, and to ignore the al- ternative. Probably the offer could have been accepted and the bargain have been made complete before sending on the cash. At all cyents, we must not forget the alternative, which was the imme- diate return of the goods. The evidence warranted a finding that the defendants did not return the goods immediately or within a reasonable time, al- though subject to a duty in regard to them. The case does not stand as a simple offer to sell for cash received in silence, but as an alternative offer and demand to and upon one who was subject to a duty to return the goods, allowing him either to buy for cash or to return the shoes at once, followed by a failure on his part to do anything. Under such circumstances, a jury would be war- ranted in finding that a neglect of the duty to return imported an acceptance of the alternative offer to sell, although coupled with a failure to show that promptness on which the plaintiffs had a right to insist if they saw fit, but which they also were at liberty to waive. | | (b) Grounds of Avoidance i. Duress and Undue Influence. a : : [Tur Eviza Lines, SupremME Court oF THE Unitrep States, 1905 (199 U. S. 119, 180-1).GROUNDS OF AVOIDANCE 023 Hormes, J.: The argument on the other side consists largely in the attempt to treat leaving the ship under stress of perils of the sea as not distinguishable on principle from being torn bodily away from it by tempest. This is one of the oldest fallacies of the law. The difference between the two is the difference between an act and no act. The distinction is well settled in the parallel instance of duress by threats, as distinguished from overmastering physical force applied to a man’s body and imparting to it the motion sought to be attributed tO him. In the former case there is a choice and therefore an act, no less when the motive commonly is recognized as very strong or even generally overpowering, than when it is one which would affect the particular person only, and not the public at large. It has been held on this ground that duress created by fear of immediate death did not excuse a tr¢ Spass. Gul- bert v. Stone, Aleyn, 35: S.C. Style, 72: Scott v. Shi phe rd, 2 W. Bl. 892. S94. see Milli TaN Horton, 152 Massachusetts, 5 LQ, 547 It has been held that a similar plea in the case of shipwrecked men | | at sea did not prevent the killing of one of them from being mur- der. Queen v. Dudley, 14 Q. B. D. 273. See United States v. Holmes, Waller i. It is clear that a contract induced by such fear is voidable only, not void, and that the ground of avoidance being like fraud, that the party has been subjected to an improper motive for action, when that motive has been created by a stranger and is unknown to the party the contract stands. Keilway, 154a, pl. 3. Fairbanks v. Snow, 145 Massachusetts, 153. So a convey- ance induced by duress is operative until avoided and cannot be set aside when the property has passed to a purchaser without no- tice. Bainbrigge v. Brown, 18 Ch. D. 188, 197; 2 Williams, Vendor & Purch. 767: Clark v. Pease, 41 N. H. 414. The dis tinction is as old as the Roman law, Z'amen coactus volut. D. 4. 9.21 § 5. 1 Windscheid, Pandekten, § 80. Brirron, Chap. XII, § 8 (Nichols’ translation ). And we will, that whatever contracts shall be made in prison by prisoners not taken or detained for felony shall be held valid, unless made under such distress as includes fear of death or tor- ture of body; and in such case they shall reclaim their deed, as soon as they are at liberty, and signify the fear they were under to the nearest neighbours and to the coroner; and if they do not re-a ne ire Se tea 524 ACTS claim such deeds by plaint within the year and day, the deeds shall be valid. Swinpurne, A Brier Treatise oF Trsraments anp Last Wires, 10 (1590). Where it is said in the definition of our will, the interpreters doe gather by this woorde our, that the testator ought to enjoy all liberty, and freedome in the making of his will; that is to say full power and habilitie, to withstande all contradiction and counter- maund. And therefore if the testator be compelled by violence, or urged by threatenings, to make his testament: the testament being made by iust feare, is uneffectuall. Likewise if hee bee circum- uented by fraud, the testament loseth his force: for albeit honest and modest intercession, or request, is not prohibited; yet these fraudulent and malicious meanes, whereby many are secretly induced to make their testamentes, are no lesse detestable then open force. BLACKSTONE, CoMMENTARIES, I, 180-1381. For whatever is done by a man to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore, if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, may be after- wards avoided, if forced upon him by a well-grounded apprehen- sion of losing his life, or even his limbs, in case of his non-com- plianee. And the same is also a sufficient excuse for the commis- sion of many misdemeanors, as will appear in the fourth book. The constraint a man is under in these circumstances is called in aw duress, from the Latin durities, of which there are two sorts: duress of imprisonment, where a man actually loses his liberty, of which we shall presently speak; and duress per minas, where the hardship is only threatened and impending, which is that we are now discoursing of. Duress per minas is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason; “non,” as Bracton expresses it, “susprcro cuguslibet vane et meticulost hominis, sed talis qui possit cadere in virum constantem ; talis enim debet esse metus, quar ur se contineat vitae periculum, aut corporis cruciatum.” A fear ofGROUNDS OF AVOIDANCE 52> battery or being beaten, though never so well grounded, is no duress; neither is the fear of having one’s house burned, or one’s goods taken away and destroyed, because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages: but no suitable atonement can be made for the loss of life or limb. And the indulgence shown to a man under this, the principal sort of duress, the fear of losine his life or limbs, agrees also with that maxim of the civil law; ignoscitur eu er redemptum volurt. qua sanquine m Sium qualit Ames, Spectatty Contracts AND EquiTaBLEe Derenses, 9 Har- vard Law Rev. 49, 57. The general rule, that the misconduct of the obligee in procur- ing or enforcing a specialty obligation was no bar at common law to an action upon the instrument, was subject to one exception. As far back as Bracton’s time, at least, one who had duly signed and Sé aled an obligation, and who eould not therefore plead non est factum, might still defeat an action by pleading affirmatively that he was induced to execute the specialty by duress practised upon him by the plaintiff. The Roman law was more consistent than the English law in this respect. For, by the jus civile, duress, like fraud, was no answer to a claim upon a formal contract. All defenses based upon the conduct of the obligt e were later innova- tions ot the praetor, and were known as @xvct ptrone Ss pra toriae, or as we should say, equitable defenses. It is quite possible that the anomalous allowance of the defense of duress at common law may be due to some forgotten statute. But what ver its origin, the defense ot duress does not ditter in its nature from the defense of fraud. As Mr. Justice Holmes well says: “The ground upon which a contract is voidable for duress is the same as in the case for fraud; and is that, whether it springs from a fear or from a belief, the party has been subjected to an improper motive for action.” Duress was, therefore, never re- earded as negativing the legal execution of the obligation. “The deed took etfect, and the duty accrued to the party, although it were by duress and afterwards voidable by plea.” The defense is strictly personal, and not real: that is, it is effective, like all equi- table defenses, only against the wrong-doer, or one in privity with him. Duress by a stranger cannot, therefore, be successfully pleaded in bar of an action hy an innocent obligee; and duress byeT aes a . 526 ACTS | the payee upon the maker of a negotiable note will not affect the rights of a subsequent bona fide holder for value. § 938. 239. LT Srory. Equiry JURISPRUDENCE, I, 938. The doctrine therefore may be laid down as generally true, that the acts and contracts of persons who are of weak under- standings. and who are thereby liable to imposition, will be held void in Courts of Equity if the nature of the act or contract justity the conclusion that the party has not exercised a deliberate judg- ment. but that he has been imposed upon, circumvented, or over- come by cunning, or artifice, or undue influence. The rule of the common Jaw seems to have gone further in cases of wills (for it is said that perhaps it ean hardly be extended to deeds without ¢ir- eumstanees of fraud or imposition ), since the common law re- I eet heat quires that a person, to dispose of his property by will, should be of sound and disposing memory, which imports that the testator should have understanding to dispose of his estate with judgment and diseretion: and this is to be collected from his words, actions, and behavior at the time, and not merely from his being able to vive a plain answer to a common question. . . - 939. Cases of an analogous nature may easily be put where the party 18 subjected to undue influence, although in other respects of Se rhe ioe competent understanding. As where he does an act or makes a | . : 1 contract when he is under duress or the influence of extreme terror or of threats, or of apprehensions short of duress. For in eases of this sort he has no free will, but stands in vincults. And the con- stant rule in equity is, that where a party is not a free agent and is not equal to protecting himself, the court will protect him. The maxim of the common law is “Quod alias bonum et justum est, St per vim vel fraudem petatur, malum et imnjustum efficitur.” On this account Courts of Equity watch with extreme jealousy all con- tracts made by a party while under imprisonment, and if there is the slightest ground to suspect oppression or imposition, in such eases they will set the contracts aside. Cireumstances also of ex- treme necessity and distress of the party, although not accom- panied by any direct restraint or duress, may in like mazmner so en- tirely overcome his free agency as to justity the court in setting aside a contract made by him on account of some oppression or fraudulent advantage or imposition attendant upon it.GROUNDS OF AVOIDANCE PEOPLE v. SPEIR, Court or APPEALS oF New York, 1879 (77 Nees 1445 50 Danrortn, J.: There is a class of cases where the law pre- scribes the rights and liabilities of persons who have not in reality entered into any contract at all with one another, but between whom circumstances have arisen which make it just that one should have a right, and the other should be subject to a lability similar to the rights and lial ilities in certain cases of express con- tracts. Thus, if one man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission ot a trespass, such money may be recovered back, for the Jaw implies a promise from the wrong-doer to restore it TO the rightful owner, although it is obvious that this is the very opposite of his intention. Implhed or constructive contracts of this nature are similar to the constructive trusts of courts of equity, and in fact are not contracts at all. u. Praud. Ames, Sprcratty ConTRACTS AND EQuiITaABLE DeErensges, 9 Har- vard Law Rev. 49, 51. Startling as the proposition may appear, it is nevertheless true that fraud was no defense to an action at law upon a sealed con tract. In 1835. in Mason v. Ditchbourne, the defendant urged as a defense to an action upon a bond, that it had been obtained from him by fraudulent representations as to the nature of certain prop- erty ; but the detense was not allowed. Lord Abinger said: ale old books tell us that the plea of fraud and covin is a kind of special it ends ‘and so the defendant says it is not his non est factum, an deed.’ Such a plea would, I admit, let in ev idence of any fraud in the execution of the instrument declared upon: as if its contents were misread, or a different deed were substituted for that which the party intended to execute. You may perhaps be relieved in equity, but in a court of law it has always been my opinion that such a defense is unavailing, when once it is shown that the party knew perfectly well the nature of the deed which he was execut-; ine.” This case was followed in 1861 in Wright v. Campbell, Byles, J.. remarking: “Surely, though you shewed the transaec- tion out of which it arose to have been fraudulent, yet in an action at law, on the deed, that would not be available as a legal defense.”re a at sae SO Ne ere ta tT an 528 ACTS Haynes, Ourtines or Equiry, Lect. 5. Now, going back to the earliest discussions respecting the inter- position of equity, we find it repeatedly stated, that “‘ecovin, acci- dent, and breach of confidence” are the proper subjects of equity > jurisdiction. There was a doggerel rhyme in vogue expressing the legal views on the subject :— “Three things are judged in court of conscience: Covin, accident, and breach of confidence.” The last of these three, breach of confidence, we have already, as uu know, considered under the head of “trusts.” The modern Vv equivalent for the word “‘covin” is “fraud And fraud we now proceed to consider, together, with accident (also referred to by Lord Coke) and mistake, which, to the best of my belief, is not mentioned as a head of equity, either by him or by any other text- writer of ancient date. Taking, then, fraud, accident, and mistake in the order men- tioned, it is first to be observed that, when discussing “‘fraud” un- der the head of concurrent equity jurisdiction, we have, in strict- ness, no concern with those cases of constructive fraud, which rest upon doctrines forming part of almost every system of civilized jurisprudence, but yet ignored by the common law of England: | mean the doctrines, according to which a special disability is im- posed, in reference to the dealings, whether in the nature of con- tract or of gift, of persons standing towards one another in certain confidential relations; such as solicitor and client, guardian and ward, trustee and cestui que trust. Thus, by the Roman law, the tutor (or guardian) was pro- hibited from purchasing the property of his pupil (or ward), and a similar rule was applied to those standing in a similar fiduciary position. So by the Code Napoleon the tutor (or guardian) is prohibited from either buying or taking a lease of his ward’s property, with- out special authorization given by what is called the ‘“‘conseil de famille,’ the family council, composed of the near relatives of the ward. Our own equitable rule on the subject, in reference to gifts, was, in a case frequently quoted, thus referred to by Lord Eldon: “This case proves the wisdom of the rourt, in saying that it is al- most impossible, in the course of the connection of guardian andGROUNDS OF AVOIDANCE 529 ward, attorney and client, trustee and cestui que trust, that a transaction shall stand, purporting to be bounty for the execution of an antecedent duty.” Laying out of account, then, these cases of “constructivi fraud,” or ‘fraud in equity,” we proceed to consider the equity jurisdic- tion in cases of fraud, in its popular or ordinary sense of impos! tion or circumvention: cases, in fact, falling within the old legal term “eovin,” and which, in the modern text-books, such as Story’s Equity Jurisprudence, you will find ranged under the head of “actual fraud.” Now, in these eases of actual fraud, the jurisdiction of equity was, in the main, strictly concurrent. The court of law took cogni- zance of the fraud, both as ground for a right of action and as a eround of defense. Thus, where money had been obtained through fraud, an action on the case lay for its recovery back; and to any action brought upon an instrument obtained by fraud, a plea of fraud in obtaining it was a good defense. The equity jurisdiction, however, possessed many advantages over the legal. Thus. in most instances of actual fraud, equity possessed the means of compelling the defendant to answer, upon oath, detailed interrogatories respecting all the alleged facts and circumstances of the fraud, many of which facts and circumstances might be known only to the plaintiff and defendant; and this ad- vantage alone would almost seem sufficient to have attracted into equity almost the entire jurisdiction in reference to fraud, when it is considered that, until within the last few years, neither could the plaintiff be heard as a witness to prove his own case, nor could he compel the defendant to attend and give evidence. \oain. where the fraud had resulted in a deed actually ex cuted, conte rring some estate or right which might be asserted in futuro, what was really wanted was a judgment, directing the deed to be given up to the person de frauded. or ordering it to be cancelled ; and this was a species of remedy which the law courts never took upon themselves to administer. You may recollect, perhaps, my pointing out in my first lecture, that the maxim that equity acts “in personam” forms one of the distinguishing features of the equitable jurisdiction. As an off-shoot of this maxim, we find the equity courts, in the early times of Henry VI. and Edward IV. compelling the actor in the fraud to restore the fruits of his fraud- ulent conduct. 34el ara a ahem Kinet) ee ee ey 530 AC’ rs If anything further were needed to establish the superior appro- priateness of the equitable jurisdiction over the legal, it would be found in the circumstance, that the Equity Court is able, in con- formity with its habitual mode of action, while setting aside and undoing the fraudulent transaction, to qualify the annulling op- eration of its own decree in such a manner as may seem Just. Thus, in the ease of a bill to set aside a conveyance of real estate, as having been obtained by fraudulent representations at a erossly inadequate value—if the court set aside the deed, it will do so only on the terms of repayment of the purchase money and inter- est. When we consider then the advantages of the Equity Court, in respect first. of compelling discovery ; secondly, of interfering actively to annul instruments fraudulently obtained; and thirdly, of properly modifying its decrees and adjusting them to the rights of all parties; it can hardly be wondered at that its jurisdiction, though technically concurrent, should have become almost exclu- sive in pract ice. ii. Mistake. Haynes, Ouriines or Equity, Lect. 5. Mistake may be said to exist in the legal sense, where a person acting upon some erroneous conviction, either of law or of fact, executes some instrument or does some act which, but for that erroneous conviction, he would not have executed or done. Now, in reference to “mistake,” there is one point upon which the doctrines of the common law and of equity will be found agree- ing in the main both with each other and with the Roman law. It is this—that while mistake as to law affords no ground for relief, mistake as to fact does. Thus in the Digest, under the title “De juris et facti ignorantia,” we find the law thus laid down: “Regula est, juris quidem ignorantiam cuque nocere, facti vero ignoran- tiam non nocere.”’ And the first illustration, given at the com- meneement of the title, of the distinction between ignorance of law and ignorance of fact may be freely rendered thus:—“If a man be ignorant of the death of a kinsman whose property is about to be dealt with, time shall not run against him: otherwise, if he be aware of the death and of his own relationship, but ignorant of his consequent rights.”GROUNDS OF AVOIDANCE 531 Of the existence of the rule, as part of our common law juris- prudence, the ease of Bilbie v. Lumley affords an apt instance. There. an underwriter, with knowledge of a fact which would have entitled him to dispute his liability under a policy of marine insurance which he had underwritten, but in ignorance of thi legal rights resulting from that fact, paid the amount which he had assured; and subsequently brought an action to recover the money back. The Court of King’s Bench held the action would not lie. » could state Lord Ellenborough ask dl laintiff’s counsel whe ther h any case where, if a party paid money to another voluntarily, ¢ nd with full knowledge of all the facts of the ease, he eould re cover it back again on account of his Lon rance ot the law. No answer was given; and his lordship subsequently said, ““Every man must be take nto, DE Cl onizant otf the law ; otherwise, there is no saying to what extent the jonorance might not be carried. It would be urged in almost every case.” This short observation contains, I conceive, the true ground for the distinction between mistake of law and mistake of fact. here is at best law: and even Probably, in a very large number of transactions t but an imperfect knowledge of the real state of the wh« re the knowledge really exists, few thin OS eould be easier to allege or harder to disprove than legal ignorance. Indeed, if mis- take or misapprehension as to matter of law were admitted as a ground for reopening engagements solemnly entered into, it 1s dith cult to see how any engagement could be relied on. It must, however, be confessed that when we proceed to the con- sideration of the eases in equity respecting “mistake,” we find oe casionally the line of demarcation between mistake of law and mis take of fact less distinctly drawn in equity than either by the Roman or by the common law. This has oeeurred more particu larly in these cases whi re, under spt elal circumstane Se eombined with leeal ignorance of a very glaring kind, the court has been induced to grant relief, and has apparently rested its judgment more or less on the mistake or ignorance of law. The oft-men tioned case of Lansdowne v. Lansdowne is, perhaps, the fittest rep- resentative of this class of Cases. The Les the plaintiff, who Was sou of the eldest brother of a deceased intestate, had a dispute with his uncle, a younger brother, respecting the right to inherit the real estate of the deceased. It was agreed to consult a schoolmaster, named Hughes, who, in his turn, resorted for counsel to a booktan aaa ACTS ealled the “Clerk’s Remembrancer,” and finding the law as laid down in the book to be, “that land could not ascend, but always descended,” he put the best exposition he could on these somewhat ambiguous words, and decided that the younger brother was en- titled. Therefore, it was agreed that the son of the elder brother and the younger brother, his uncle, should share the lands, and a bond and conveyances were executed for the purpose of carrying out the agreement. The nephew subsequently filed his bill to be relieved; and Lord King, Chancellor, decreed that the bond and conveyances had been obtained by mistake and misrepresentation of the law, and ordered them to be given up to be eancelled. Lord King is reported to have said, in delivering judgment, that “That maxim of law, [gnorantia juris non excusat, was in regard to the Public, that Ignorance cannot be pleaded in Excuse of Crimes, but did not hold in Civil Cases.” This, however, is clearly not law at the present day.’ The form of the decree in Lansdowne v. Lansdowne, viz., that the deeds should be delivered up, leads me naturally to the con- sideration of the superior efficacy of the equity jurisdiction in eases of “mistake.” Here, as in cases of “fraud,” we find the power of ordering the delivering up of the impeached instrument, imparting to the equitable jurisdiction a completeness vainly sought for at law. As respects the other ingredients of superiority which the equitable jurisdiction has been mentioned as possessing i cases of “fraud” over that at law, both of which exist also in cases of “mistake,” we may observe, that while on the one hand, the discovery obtainable through the medium of the equity courts only was, perhaps, of somewhat less importance in eases of “mis- take; ” so, on the other hand, the power to qualify, mould, and alter, instead of simply annulling and undoing, was, in cases of “mistake,” of even greater importance. Take, as a specimen of mistake, the case of instructions given to prepare a settlement of the lands of a lady on the occasion of her marriage. Assume that under special circumstances, it had been arranged that, after lim- itations to the lady and her husband for their lives, the property should go to such uses in favor of the children as the wife alone should, by deed or will, appoint; and that, inadvertently, the 1But see Keener, Quasi Contracts, 85 ff; Woodward, Recovery of Money Paid under Mistake of Law, 5 Columbia Law Rey. 366; Stadden, Error of Law, 8 Columbia Law Rey. 476.GROUNDS OF AVOIDANCE power of appointment was given to the husband and wife and the survivor, in the usual form. Now, what is wanted is not to undo the settlement, but merely to alter it and make it what the parties intended it should be. The dee d requires to be “reformed.” as the vee nical phrase is; and of the entire equity jurisdiction, de- rivable from the three heads of fraud, accident and mistake, it would be difficult to name any portion which is more beneficial, or more judiciously exercised, than that of reforming deeds in eases . : ; ot m stale. (c) Qualifications i. Conditions. BLACKSTONE, CoMMENTARIES, II, 154-157. An estate on condition expressed in the grant itself is where an estate is eranted, either in fee-simple, or otherwise with an ex- press qué ilification annexe dd, whereby the estate oranted shall either commence, _ enlarged, or be defeated, upon performance or breach of such qualification or condition. These conditions are therefore either preced nt, or subse que nt. Precede nt are such as must pePRe or be performed before the estate can vest or be en- IF irge rd: sul se que nt are such, by the failure or non-performance of which an estate eee vested may be defeated. Thus, if an es- tate for “lik » be limited to A upon his marriage with B, the mar- riage is a precedent condition, and till that happens no estate iS vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee simple passeth not till the hundred marks be paid. But if a man grants an estate in fee-simple, reserving to himself and his heirs a certain rent; and that if such rent be not paid at the time limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate: in this cas the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the ie be not strictly performed. And, on the breach "an Ly of these subseque nt conditions, by the failure of these continge necies; by the grantee’s not con- tinuine tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole: the estates which were respectively vested in each grantee are wholly det rminable and void.Aha he! 534 ACTS A distinction is, however, made between a condition in deed and a limitation, which Littleton denominates also a condition in law. For when an estate is so expressly confined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, 4 this is denominated a limitation: as when land is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 5001., and the like. In such case the estate determines as soon as the contin- eency happens (when he ceases to be parson, marries a wife, or has received the 500 1.), and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly wpon condition to be void upon the pay- ment of 401. by the grantor, or so that the grantee continues un- married, or provided he goes to York, etc.), the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid . the estate. Yet, though strict words of condition be used in the creation of the estate, if on breach of the condition the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives (as if an estate be eranted by A . to B, on condition that within two years B intermarry with C, and on failure thereof then to D and his heirs), this the law construes to be a limitation and not a condition: because if it were a condi- tion, then, upon the breach thereof, only A or his representatives could avoid the estate by entry, and so D’s remainder might be defeated by their neglecting to enter; but, when it is a limitation, the estate of B determines, and that of D commences, and he may enter on the lands the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition. iditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God rn : lhese express ¢o1QUALIFICATIONS or the act of the feoffor himself, or if they be contrary to law, or repugnant to the nature of the estate, are void. In any of which cases, it they be conditions subse quent, that iS, to be pe rformed after the estate is vested, the estate shall become absolute in the tenant. As if a feoffment be made to a man in fee-simple, on con- dition that unless he 2°0eS to Rome in twenty-four hours: or unless he marries with Jane S, by such a day, (within which time the woman dies, or the feoffor marries her himself ;) or unless he kills another ; or in ease he aliens in fee; that then and in any of such cases the estate shall be vacated and determine: her the condition is void, and the estate made absolute in the feoffee. For he hath e defeated afterwards by a condition either impossible, illegal, or repugnant. by the grant the estate vested in him, which shall not But if the condition be precede nt, or to be performed before the estate vests. as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee; here, the void con- dition be Ing precedent, the estate which di pends thereon is also void, and the grantee shall take nothing by the grant: for he hath no estate until the condition be perform d. LANGDELL, SumMARY OF ContRActs, §§ 26-31. 26. A covenant or promise is conditional when its performance depends upon a future and uncertain event. The futurity and uncertainty of the event have reference to the time when the cov- enant or promise is made. If the event has then ceased to be future and uncertain. though not to the knowledge of the coven- antor or promisor, it will not constitute a condition. Nor is it sufficient that the event be future, unless it be also uncertain; and the uncertainty must not be merely as to the time when the event will happen, but as to whether it will ever happen. [t is sufficient, however, that the event is uncertain, for then it must necessarily be future also. It may be an event over whieh neither of the parties has any control, or it may be one within the control of the covenantee or promisee, @.¢., where it consists in his doing or not doing a certain act. It may also consist of an act to be done or not to be done by the covenantor or promisor, ¢.g., where one covenants or promises to do a specific thing, and in the event of his not doing it to pay $1,000; but it cannot depend upon the mere will and pleasure of the covenantor or promisor, for such an event would destroy the covenant or promise instead of making it conditional.ee near on IG EY EET EID nee oer Coens Peet ee ACTS Thus, if A promise B to buy the latter’s horse at such a price if he likes him after a week’s trial, the promise will be void unless it can be interpreted as a promise, for example, to buy the horse unless a week’s trial shall bring to light some fault in him of which the buyer was ignorant when he made the promise. 27. A covenant or promise cannot be conditional unless it first exist; it is only the performance of it that the condition renders uncertain. An event, therefore, which must happen before a covenant or promise is made, does not make the covenant or prom- ise conditional. If the event happens, the covenant or promise is absolute; if it does not happen, no covenant or promise 1s mace. In such cases the condition is made when the offer is made, and the condition is annexed to the offer, and becomes a part of it; but before the covenant or promise is made, the event has ceased to be uncertain, and hence the condition has ceased to exist. In short, it is the offer, and not the covenant or promise, that is conditional. The consideration of every unilateral promise is necessarily a con- dition of this nature until it is given or performed, while the con- sideration of a unilateral covenant may be a condition of the covenant or of the offer, according to the intention of the cove- nantor. 28. When the making of a covenant or promise depends upon whether a certain event has already happened, there is no condi- tion of any kind. If the event has happened, the covenant or promise is absolute from the beginning; if the event has not hap- pened, there is no covenant or promise at all. Thus, in Ollive v. Booker, the court having decided that the defendant’s promise to take the vessel depended upon her “having sailed three weeks ago,” and that event not having happened, it necessarily followed that the defendant had made no promise. So in Behn vy. Burness, the statement that the vessel was ‘“‘now in the port of Amsterdam” be- ine untrue, it followed from the decision of the court that the de- fendant had made no promise. ay: 29. As the event which is to render a covenant or promise con- ditional must not happen before the covenant or promise is made, |so it must not happen after it is performed; for the effect of the condition must be to render the performance uncertain, whereas an event happening after performance cannot affect the covenant or promise in any manner. Conditions cannot therefore be di- vided into classes with reference to their relation in point of timeQUALIFICATIONS either to the making or to the performance of the covenant or promise; nor can they with reference to the nature of the event, for any uncertain event which is to happen, if at all, between the making of the covenant or promise and its performance (or con- currently with the latter at latest) may constitute a condition of any kind. In truth, the division of conditions into conditions precedent, concurrent conditions, and conditions subsequent, is de- sioened to mark the relation in point of time between the event which constitutes the condition and the obligation of the covenant or promise. What that relation is in any given cas depends upon when the obligation ot the covenant or promis is to al Ise, and that depends upon the intention of the covenantor or promisor. Thus, if the covenant or promise is not designed to impose any obligation ] I or confer any right until the event happens, the condition is said to be precedent, ie it precedes the obligation 11 time. So, it the covenant or promise is designed to impose an obligation and confer a right from the moment when it is made, and so before the event happens, the condition is said to be subsequent, 7.e., subsequent in time to the obligation. Finally, if the covenant or promise is de- signed to impose an obligation and confer a right at the moment when the event happens, the condition is said to be concurrent, 1.é., concurrent in time with the obligation. In this last case the event which constitutes the condition always consists of some act to be done by the covenantee or promisee, and the object of hav- ing the obligation arise at the very moment when the event hap- pens (rather than afterwards) is to enable the covenantee or prom- isee to insist upon performance of the covenant or promise at the same moment that he performs the condition ; and it is this mght of the covenantee or promisee that constitutes the chief difference between conditions precedent and concurrent conditions. Hence the idea has naturally arisen that the relation in time between the performance of the covenant or promise and the performance of the condition is the cause, instead of the consequence, of the con- dition’s being concurrent. 30. Between conditions precedent and conditions subsequent the differences are important and radical. In case of a condition precedent, as the obligation to perform the covenant or promise does not arise until the event happens, of course until then there can be no breach of the obligation, and hence no action can be brought: and when an action is brought, it is a necessary part ota a a 538 ACTS the plaintiff’s case to allege and prove that the event has happened. In the case of a condition subsequent, on the other hand, as the obligation to perform the covenant or promise arises the moment that the latter is made, a breach of the obligation has no connec- tion with the happening of the event, and may take place either before or after the event happens. When an action is brought, therefore, the plaintiff can make out his case without any reter- ence to the condition; and if in truth the event has happened, and the defendant is in consequence not bound to perform his cove- nant or promise, the burden lies upon him to allege and prove that fact. A condition subsequent, therefore, is always a defense, and an affirmative one. While the performance of the covenant or promise depends upon the happening of the event in both cases, it depends upon it in a different sense in the one case from what it does in the other: in case of a condition precedent, the covenant or promise is not to be performed unless the event happens; while, in the case of a condition subsequent, it is not to be performed if it happens. A condition precedent is an element in the creation of an obligation: A condition subsequent is one of the means by which an obligation is extinguished. 31. When it is said that, in the case of a condition subsequent, the obligation to perform arises immediately upon the making of the covenant or promise, it must not be inferred that performance is necessarily to take place immediately. An obligation may exist now to do a thing at a future time, and it may or may not be cer- tain when that time will arrive, provided it be certain that it will arrive some time; and yet the performance of that obligation may be lable to be defeated by a condition subsequent. It is possible, therefore, for an obligation to be extinguished by a condition sub- sequent before the time for performing the obligation arrives, and hence before any right of action accrues. Yet if an action be brought after the time for performance arrives, the plaintiff will be able to state and prove facts which will entitle him to recover, unless the defendant sets up and proves his defense arising from the eondition subsequent. it Tne. ComBe v. Pirr, Kina’s Bencn, 1763 (3 Burr. 1423, 1484). Lorp Mansrirzp: But though the law does not, in general, al- low of the fraction of a day, yet it admits it in cases where it 1sQUALIFICATIONS necessary to distinguish. And I do not see why the very hour may not be so too, where it 1s necessary and can be done: toy, it is not like a mathematical point, which cannot be divided. Lester v. GARLAND, IN Cuancery, Berore Str WiLtiamM GRANT, MOR, 1808 (15 Ves. 248. 252). The Master of the Rolls: The question in this cause 1s, whether Mrs. Pointer within six calendar months atter the decease of her brother gave the security, required by his Will, as the condition, upon which her ehildren should take the benefit of his residuary estate. He died upon the 12th of January, 1805, at a quarter before nine o’clock in the evening. The security required was executed upon the 12th of July following, about seven in the eyen- ine. Computing the time de momento in momentum, six calendar months had not elapsed: but it is admitted, that this is not the way in which the computation is legally to be made. The question is, whether the day of Sir John Leste r’s death is to be included in the six months, or to be excluded: if the day is included, she did not, if it is excluded, she did, give the required security before the end of the last da yf the six months ; and therefore did suth- ciently comply with ie condi tion. [t is said for the Plaintiffs, that upon this seth a general rule has been by decision established ; that, where the time is to run from the doing of an act, (and for the purpose of thee question it must extend tO the happening of an event ) the day is always to be included. Whatever dicta there m: Ly be to that effect, it is clear, the actual decisions cannot be brought under any such general rule. The presentment otf a bill of exchange to the sight of the drawee is an act done; and yet it is now settled, that the day, bee which it is presented, is to he excluded. . . . Lhe Annuity Act provides, that the twenty days shall run from the execution es the deed. . The execution of the deed is undoubtedly an act done: yet according to the decisions the day upon which the deed was exe- cuted. is excluded. So, in a case in the House of Lords, in 1796, in which I was Counsel, Mercer v. Oglivie, where the question was, whether within the meaning of the Act of Parlament in Scotland “for reoulating deeds done on death-bed” a man had lived sixty days after the making and granting of the deed, it was held, that the day, on which the deed was made and granted, was to be ex- eluded.540 ACTS It is not necessary to lay down any general rule upon this sub- ject: but upon technical reasoning I rather think, it would be more easy to maintain, that the day of an act done, or an event happening, ought in all cases to be excluded, than that it should in all cases be included. Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of indivisible point; so that any act, done in the compass of it, is no more referable to any one, than to any other, portion of it: but the act and the day are co-extensive; and therefore the act cannot properly be said to be passed, until the day is passed. This reasoning was adopted by Lord Rosslyn and Lord Thurlow in the case before mentioned of Mercer v. Oglivie. . . . In the present case the technical rule forbids us to consider the hour of the testator’s death at the time of his death; for that would be making a fraction of a day. The day of the death must therefore be the time of the death; and that time must be past, before the six months can begin to run. The rule, contended for on behalf of the Plaintiffs, has the effect of throwing back the event into a day, upon which it did not happen; considering the testator as dead upon the 11th, instead of the 12th, of January; for it is said, the whole of the 12th is to be computed as one of the days subsequent to his death. There seems to be no alternative but either to take the actual instant, or the entire day, as the time otf his death; and not to begin the computation from the preceding day. Smirn v. County Commissioners oF JEFFERSON County, SU- PREME Court oF CoLtorapo, 1887 (10 Col. 17, 22). Beck, C. J.: In this connection counsel for the appellee asks for an opinion “as to what length of time will constitute a day’s service for the superintendent.” We answer, the law does not recognize fractions of days; and, when it provides a per diem compensation for the time necessarily devoted to the duties of an oftice, the officer is entitled to this daily compensation for each day on which it becomes necessary for him to perform any substan- tial official service, if he does perform the same, regardless of the time occupied in its performance.TORTS 8. Torts! Konter, Lenrspucn Der Purnosopute Des Recuts, 2 Ev ry elvilization has its de finite jural pi stulate Ss . a proposi- tions of right and law which it presupposes|, and it is the task of society trom time TO time TO shape the body ot leoal precepts according to these Ie juirements. JURAL POSTULATE I. In civilized society men must be able to assume that others will commit no intentional aggressions upon the! COROLLARY OF JURAL POSTULATE I. One who intentionally does anything which on its face is injurious t e unle ss | another must repair the resulting dama e can establish a liberty or privilege by identifying his claim so to act with a recognized public or social interest. JURAL POSTULATE II. In civilized society men must be able to assume that others, when they ] with due care with respect are engaged in a course to consequences which may reasonably be anticipated. JURAL POSTULATE III. In civilized society men must be able to assume that others who main- tain things likely to get out of hand or to escape and do damage, will restrain them or keep them within their proper bounds. Hence one is liable in tort for 1. Intentional aggression upon the personality or substance of another (unless he ean establish liberty or privilege 2. Negligent interference with person or property—i. e., failure to come up to the legal standard of due care under the circumstances, w! ile engaged in some course of conduct, whereby injury is caused to the person } or substance of another. 3. Unintended non-negligent interference with the person or property of another through failure to restrain or prevent the escape of some = dangerous agency which one maintains.* Hearn, THrory or Lecat Duriss anp Rieuts, 152-158. Wrong is the contrary of right, and a wrone 1s the contrary ot a right. The Same ambiguity theretore which atteects right eXI1STS in wrong. As the former term means contormity tO a standard, so the latter term means nonconformity to a standard. Conse- quently, unless the standard be ascertained and recognized, all 1The student may be referred to Bigelow, Torts (8 ed.) ; Salmond, Torts (6 ed.) ; Wigmore, Summary of the Principles of Torts, Select Cases on the Law of Torts, vol. 2, appendix A; Bohlen, Studies in the Law of Torts. 2 see Pound, Introduction to the Philsophy of Law, Lect. 1.a eal SE eet eh ta aoe 542 ACTS reasoning on the subject of right and wrong is mere waste of words. In the case of legal rights and legal wrongs, as a right means that a relative duty is obeyed or is likely to be obeyed, so a wrong means that a relative duty has actually been broken. WACHTER, PANDEKTEN, II, see. 184, C. e. Obliaationes quae re contra- huntur. These are contracts in which one is bound in an actionable obliga- tion by this fact. that he has received something, to redeliver what he has rece ived. These econtracts are mutuum, commodatum, de posilum, prgits. In the three last, the conerete thine’s received, that is, the species, are } he ease of the mutuuwm, on the to be redelivered at the proper time; in other hand, not the conerete things received, but satistactor) thine’s of the same kind and worth and in like quantity are to be redelivered tantundem. In thesc cases, the actionable obligation arises solely from this, that one has received the subject of the obligation; but it arises only so far as one has actually receive: Therefore, the Romans say the obligation is contracted re. that is, the actionable obligation is here founded and its beginning determined only through the performance received. Hence we eall these contracts real contracts. LANGDELL, SUMMARY oF ConTRAGTS, SS 99-101. 99. The original normal mode of creating a debt was by a loan of money. In that transaction, therefore, the true nature of a debt must be sought. The subject of a loan may be either a specific thing, as a horse, or a given quantity of a thing which con- sists in number, weight, or measure, as money, sugar or wine. In the former case. it is of the essence of the transaction that the thing lent continue to belong to the lender; otherwise the transaction is nota loan. In the latter case, the thing lent may (and common- ly does) cease to belong to the lender, and become the property ot the borrower, such a loan commonly being an absolute transfer of title in the thing lent from the lender to the borrower. The reason why such a transfer takes place is obvious. The object of borrowing is to have the use of the thing borrowed; but the use of things which consist in number, weight, or measure commonly 1 Holmes, Common Law, Lect. V.Sa aa a ae roca ee OBLIGATIONS consumes them: and this use, of course, the borrower cannot have unless he owns the things used. When such things are lent, there- fore, it is presumed to be the intention of both parties, in the ab- sence of evidence to the contrary, that the borrower shall acquire the title to them. But why then call the transaction a loan ‘ The answer is that, in every particular except the transfer of title, it 1s a loan: that the title is transferred for the purpose of making the loan effective as such, and because it is immaterial to the lender whether he receives back the identical thing lent, or something e difference between a loan of else just like it. Moreover, tl money, for example, and a loan of a specific article, is not common- ly present to the minds of the parties; the lender of money thinks the money lent still belongs to him, and that the borrower has ac- quired o1 ly the right to use it temporarily; he is aware that the 0 borrower is entitled to transfer to other persons the identical coins lent, and that he has the option of returning to him, the lender, either the identical coins borrowed, or others like them; but he is not aware that these rights in the borrower are inconsistent with his retaining the title to the money lent. In other words, he sup- poses (and, in every view except the strict legal view, he is right In supposing) that he may own a given sum of money without own- ing any specified coins; and that the only substantial difference be- tween money in his own coffer and money due to him is, that in the former ease he has the possession, while in the latter case he has hot. 100. A debt, therefore, according to the popular conception of the term, is a sum of money belonging to one person (the creditor ), but in the possession of another (the debtor). There is also much reason to believe that this popular conception of a debt was adopted by the early English law, at least for certain purposes. Thus, the action of debt (which was established for the sole and exclusive purpose of recovering debts of every description) was in the nature of an action in rem, and did not differ in substance from the action of detinue; the chief difference between them being that the lat- ter was for the recovery of specified things belonging to the plain- tiff, the former, of things not specified. This would tend to the conclusion that the legal mode of creating a debt is not by contract, but by grant, 7.e. by the transfer of a sum of money from the debt- or to the creditor without delivering possession; and it is a con- firmation of this view that a debt clearly may be so ereated. Thus,CONTRACTS 591 an annuity, which is simply a debt payable in equal annual install- ments, has always been regularly created by grant; and there can be ho doubt that an ordinary cdi bt mM be creat ( by a mere deed of erant. But it woul too much to undertake to account in this way for all debts which may be creat 1 by the acts of parties; for. in the first place, a mere covenant (1. e. a promise under seal ) to pay a certain sum of money wi . og 14 s ] es ef he aT hat a debt cannot be created Dy grant without it is clear enough that a o a deed; thirdly, it wt ild seem to be straining the facts to sav that every loan of money 1s, 1n its legal operation, an exchange of the sum lent for a like sum to be paid in future by the borrower, and that every executed sale upon credit 1s like exchange of the prop- erty sold for the purchas mone to be paid at a future day: , rant or econ- fourthly, there has never been supposed to be any g in ease of a loan, or on the part veyance on the part ot 4 porrower 1 Cz : ; & : me o£ a buyer im case OF a Sale, Dut, on te Col trary. it has always been supposed that thi cl th eases was created (in the only other possible mode, namely ) by tract. Yet this latter view is not without its difficulties. That a debt cannot be ereated by a mere binding promise on the part of a debtor, without the receipt by him from the creditor of a supposed equivalent for the debt, is clear: First, until the introduction Ol the act yn ot assum psit (which was not earlier than the latter half of the fifteenth cen- tury) such promises were not enforceable by law at all. Secondly, an action of debt will never lie on a bilateral contract not under seal; but if the promise on one side be m«¢ money, an action of debt will generally lie to recover the money as soon as the promise on the other side is performed. For example, rely for the payment of a contract ot sale will never support an action ot debt SO long’ as it remains executory on both sides, but as soon as the title to the property sold passes TO the buyer, de iT will lie for the price. It ‘s clear. therefore. that it is the transfer of the property for a cer- tain price, and not the previous executory contract, that creates also take place without any previous the debt. The transfer may the same. Thirdly, executory contract, and yet the debt arises just ‘t is familiar law that an action of debt will not he on a unilateral promise to pay money unless the promisor has received an equiva- lent. For example, when A sells eoods to B upon eredit, and in consideration of the sale, C guarantees the payment of the price, an action of debt will not lie against © The result, therefore, is,592 OBLIGATIONS that a debt cannot be created by contract unless either the contract is under seal or the debtor has received an equivalent, commonly termed a guid pro quo. But what kind of contract is that in which the obligation arises not from a promise, but from the receipt of an equivalent for the obligation by the obligor from the obligee? Up- on examining the two classes into which contracts are commonly divided, viz. those under seal and those not under seal, it will be seen that the obligation arises in the former from the performance yf certain acts prescribed by law, viz. reducing the promise to writing, sealing the writing, and delivering it; while in the latter, it generally arises from a promise made and accepted, 7t.e. from an exercise of will on the part of the promisor and the promisee, the law imposing only the condition that there shall be some considera- tion for the promise. According to the nomenclature employed by writers on the civil law, the former are formal contracts, while the latter are consensual contracts. This distinction existed from the earliest times among the Romans, who allowed certain speci- fied contracts (only four in all) to be made by mere consent, but for all others required some one of three prescribed forms. One of these forms consisted in the delivery of some movable thing by the promisee to the promisor. When this was done with the mu- tual understanding that either the specific thing delivered or (in case of things which consisted in number, weight, or measure) something else like it should be returned, an obligation to make such return arose immediately upon the delivery. As the contract arose from the delivery of a thing (7e), it was called a real con- tract. There were four of these contracts from the earliest times; namely, a loan of money or other thing consisting of number, weight, or measure (mutuwmn), a gratuitous loan of specific things (commodatum), a delivery of specific things for safe keeping (de- positum), and a pawn or pledge (pignus). At a later period, this spec ies of contracts was so extended as to embrace any transaction which consisted in giving or doing on one side, with the mutual understanding that some specified thing should be given or done on the other side in exchange. 101. There can be little doubt that the Roman law in regard real contracts was adopted by the English law at a very early period, at least so far as the latter law provided a remedy for enforcing such contracts; and whenever the giving or doing on one CC side created an obligation on the other side to pay a.definite sum ofCONTRACTS 593 money, the action of debt not only furnished an appropriate means for enforcing the obligation, but it was for that express purpose that the action was established. The testimony ot the early writ- ers is very explicit upon this subject. Thus, Glanville enumer- ates five contracts, all of Roman origin, as creating debts. Three of these were the real contracts of mutwum. commodatum, and depositum ; the other two were sale (venditio) and letting for hire (locatio me anine a sale or le ttine which had be n executed by a transter of the thine sold or let. These latter were not regarded as real contracts among the Romans, for the reason that they were binding as consensual contracts, though wholly executory ; but, as they were not binding by the English law while exeeutory, they were very properly classed by Glanvill among real con tracts when executed by a transfer of the property. Bracton, who in this respect is followed by Fleta, and in substance by Britton, follows the Institutes of Justinian almost literally upon the sub- i cet of re al contracts ; and though the closeness of his copy ine may excite some suspicion as to the trustworthiness of his testimony, yet what he says upon real contracts is quoted as authority by Lord Holt, in Coggs v. Bernard. It may be added that Britton and ler the titles Fleta, as well as Glanville. treat of real contracts un “debt” and ‘‘action ot debt.’’ Coaes v. Bernarp, King’s Bench, 1703 (2 Lord Raym. 909). Hour, C. J.: The case is shortly this. This defendant under- takes to remove goods from one ecllar to another, and there lay them down safely, and he managed them so negligently, that for want of care in him some of the goods were spoiled. Upon not euilty pleaded, there has been a verdict for the plaintiff, and that upon full evidence, the cause being tried be fore me at Guildhall. There has been a motion in arrest of judgment, that the declara- tion is insufticient, because the defendant is neither laid to be a common porter, nor that he is to have any reward for his labor. So that the defendant is not chargeable by his trade, and a private person cannot be charged in an action without a reward. I have had a ereat consideration of this case, and because some of the books make the action lie upon the reward, and some upon the promise, at first I made a great question, whether this declara- tion was good. But upon consideration, as this declaration is, | think the action will well lie. In order to shew the grounds, 20 vo594 OBLIGATIONS upon which a man shall be charged with goods put into his custody, I must shew the several sorts of bailments. And there are six sorts of bailments. The first sort of bailment is, a bare naked bailment of goods, delivered by one man to another to keep for the use of the bailor: and this I call a deposttum, and it is that sort of bailment which is mentioned in Southcote’s case. The sec- ond sort is, when goods or chattels that are useful, are lent to a fri nd, eratis, to be used by him: and this is ealled commodatum, because the thing is to be restored in specie. The third sort is, vhen goods are left with the bailee to be used by him for hire; this is ealled locatio et condtu tro, and the lender is ealled locator, and the borrower conductor. The fourth SOrt 1S, when goods or chat- tels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor; and this is called in Latin vadium, and in English a pawn or a pledge. The fifth sort is when goods or chattels are delivered to be carried, or something is to be don abo t them for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. The sixth sort is when there is a delivery of goods or chattels to somebody, who is to carry them, or do something about them gratis, with- out any reward for such his work or carriage, which is this present case. J] mention these things, not so much that they are all ot them so necessary in order to maintain the proposition which is to be proved, as to clear the reason of the obligation, which is upon persons in cases of trust. As to the first sort, where a man takes goods in his custody to keep for the use of the bailor, I shall consider for what things such a bailee is answerable. He is not answerable, if they are stole without any fault in him, neither will a common neglect make him chargeable, but he must be guilty of some gross neglect. There is, I confess, a great authority against me, where it is held, that a general delivery will charge the bailee to answer for the goods if he goods are specially accepted, to keep them only as you will keep your own. But my Lord Coke has im- proved the case in his report of it, for he will have it, that there is no difference between a special acceptance to keep safely, and an they are stolen, unless t acceptance generally to keep. But there is no reason nor justice in such a case of a general bailment, and where the bailee is not to have any reward, but keeps the goods merely for the use of the bailor, to charge him without some default in him. For if he59D keeps the goods in such a case with an ordinary care, he has per- formed the trust reposed in him. But according to this doctrine the bailee must answer for the wrongs of other people, which he is not. nor cannot be sufticiently armed against. If the law be so there must be some just and honest reason for it, or else some uni versal settled rule of law. upon which it is grounded; and therefore it 18 Incumbent upon them that adva ce this doctrine, to snew an x é is Pe indisturbed rule and practice of the law according to this position. But to shew that the tenor or the law Was always otherwise, [ shall rive a history of the authorities in the books in this matter, and 1 ; ; hat the re never was any such resolution o1ven b tore Southcote’s cas The 29 Ass. 28, is the first case in the books upon that learning, and there the opinion 1s, that the bailee is not chargeable, if the goods are stolen. As for 8 Edw. 2, Fitz. Detinue 59. where goods were locked in a chest, and left with the bailee, and the owner took away the key, and the eoods were stolen. and | Id not answer for the goods. That it was held that the bailee shoul case they say differs, because the bailor did not trust the bailee with them. But I cannot see the reason of that difference, nor why should not be charged with Ol ds in a ehe St, aS W‘é l] as with eoods out ot a chest. For the bailee has as little pow! r Over +} ha the bailee them, when they are out of a chest, as to any benefit he might have by them, as when they are in a chest: and he has as oreat power to defend them ‘n one case as in the other. The case of Edw. 4. 40 b. was but a debate at bar. For Danby was but a coun- sel then. though he had been Chief Justice in the beginning of Ed. t. vet he was removed, and restored again upon the restitution of Le j 6 as appears bv Duodale’s ( hronica Ne rie Ss, So that what he ; PI s said cannot be taken to be any authority, for he spoke only for his chent; and Genney for his client said the contrary. He Ni. 4 is but a sudden opinion and that but by half the Court; The case in 3 and yet that is the only ground for this opinion of my Lord Coke, which besides he has improved. But the practice has always been at Guildhall, to disallow that to be a sutticient evidence, to eharee the bailee. And it was practised so before my time, all Chief Justice Pemberton’s time, and ever since, against the opinion ot When I read Southcote’s case heretofore, I was not so that Case: he was, to disallow that discerning as my brother Powys tells us case at first, and came not to be of this opinion, till I had well considered and digested that matter Though I must confess reaEy a ca ee gr Oe 596 OBLIGATIONS son is strong against the case to charge a man for doing such a friendly act for his friend, but so far is the law from being so un- reasonable, that such a bailee is the least chargeable for neglect of any. For if he keeps the goods bailed to him, but as he keeps his own, though he keeps his own but negligently, yet he is not charge- able for them, for the keeping them as he keeps his own, is an argument of his honesty. A fortiori he shall not be charged, where they are stolen without any neglect in him. Agreeable to this Bracton, lib. 3, c. 2, 99 b. . . . As suppose the bailee is an idle. careless. drunken fellow, and comes home drunk, and leaves all his doors open, and by reason thereof the goods happen to be stolen with his own; yet he shall not be charged, because it is the bailor’s own folly to trust such an idle fellow. So that this sort of bailee is the least responsible for neglects, and under the least obligation of any one, being bound to no other eare of the bailed eoods, than he takes of his own. This Bracton I have cited is, I confess, an old author, but in this his doctrine is agreeable to rea- son, and to what the law is in other countries. The civil law is so, as you have it in Justinian’s Jnst. lib. 3, tit. 15. There the law goes farther. . . . So that a bailee is not chargeable without an apparent gross neglect. And if there is such a gross neglect, 11 is looked upon as an evidence of fraud. Nay, suppose the bailee undertakes safely and securely to keep the goods, in express words, even that won’t charge him with all sorts of neglects. For if such a promise were put into writing, it would not charge so far, even then. Hob. 34, a covenant, that the ecovenantee shall have, oceupy and enjoy certain lands, does not bind against the acts of wrong- doers. 3 Cro, 214, ace. 2 Cro. 425, ace. upon a promise for quiet enjoyment. And if a promise will not charge a man against wrongdoers, when put in writing, it is hard it should do it more so, when spoken. Doct. & Stud. 130, is in point, that though a bailee do promise to re-deliver goods safely, yet if he have noth- ing for the keeping of them, he will not be answerable for the acts of a wrongdoer. So that there is neither sufficient reason nor au- thority to support the opinion in Souwthcote’s case; if the bailee be guilty of gross negligence, he will be chargeable, but not for any ordinary neglect. As to the second sort of bailment, viz., com- modatum or lending gratis, the borrower is bound to the strictest care and diligence, to keep the goods, so as to restore them back again to the lender, because the bailee has a benefit by the use ofCONTRACTS 597 them, so as if the bailee be guilty of the least neglect, he will be answerable; as if a man should lend another a horse. to 20 west- ward, or for a month; if a bailee go northward, or keep the horse above a month, if any aecident happen to the horse in the north- ern journey, or after the expiration of the month, the bailee will bi chargeable ; because he has made use of the horse contrary to the trust he was lent to him under, and it may be if the horse had been used no otherwise than he was lent, that accident would not have befallen him. This is mentioned in Bracton. . . . I cite this author. though | conte Ss he is an old one, beeause his opinion 1S reasonable, and very much to my present purpose, and there Is no authority in the law to the contrary. But if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him. But if he or his servant leave 1 the house or stable doors open, and the thieves take the oppor- tunity of that, and steal the horse, he will be chargeable: be- cause the neglect gave the thieves the occasion to steal the horse. Bracton says, the bailee must use the utmost care, but yet he shall not be chargeable, where there is such a force as he cannot resist. As to the third sort of bailment, scilicet locatio or lending for | hire, in this case the bailee is also bound TO take the utmost care and to return the goods, when the time of the hiring is expired. And here again I must reeur to my old author, fol. 62 b. : From whence it appears, that if goods are let out for a reward, the hirer is bound to the utmost diligence, such as the most diligent father of a family uses; and if he uses that, he shall be discharged. But every man, how diligent soever he be, being liable to the acel- dent of robbers, though a diligent man is not so liable as a ‘eareless man, the bailee shall not be answerable in this case, it the goods are stolen. As to the fourth sort of bailment, viz., vadiwm or a pawn, in this I shall consider two things; first, what property the pawnee has in the pawn or pledge, and secondly for what neglects he shall make satistaction. As to the first, he has a special property, for the pawn is a securing to the pawnee, that he shall be repaid his debt, and to compel the pawner to pay him. But if the pawn be such as it will be the worse for using, the pawnee cannot use it, as cloaths, &e., but if it be such, as will be never the worse, as if jewels for the purpose were pawn’d to a lady, she might us them. But then she must do it at her peril, for whereas, if she keeps them lock’d up in598 OBLIGATIONS her cabinet, if her cabinet should be broke open, and the jewels taken from thence, she would be excused; if she wears them abroad, and is there robb’d of them, she will be answerable. And the reason is, because the pawn is in the nature of a deposit, and as such is not liable to be used. And to this effect 1s Ow. 123. sut if the pawn be of such a nature, as the pawnee is at any chargr about the thing pawn’d, to maintain it, as a horse, cow, «c., then the pawnee may use the horse in a reasonable manner, or milk the cow, e., in recompense for the meat. As to the seeond point Bracton 99 b. gives you the answer... . . In effect, 1f a creditor takes a pawn, he is bound to restore it upon the payment of the debt; but yet it is sufficient, if the pawnee use true diligence, and he will be indemnified in so doing, and notwithstanding the loss, yel he shall resort to the pawnor for his debt. Acreeable to this is 29 Ass. 28, and Southcote’s case is. But indeed the reason given in Southcote’s case is, because the pawnee has a special property in the pawn. But that is not the reason of the case; and there is another reason given for it in the Book of Assize, which is indeed the true reason of all these cases, that the law requires nothing extraordinary of the pawnee, but only that he shall use an ordi nary care for restoring the goods. But indeed, if the money {01 which the goods were pawn’d, be tender’d to the pawnee before they are lost, then the pawnee shall be answerable for them; be- cause the pawnee, by detaining them after the tender of the money, Is a wrongdoer, and it is a wrongful detainer of the goods, and the special property of the pawnee is determined. And a man that keeps goods by wrong, must be answerable for them at all events, for the detaining of them by him, is the reason of the loss. Upon the same difference as the law is in relation to pawns, it will be found to stand in relation to goods found. As to the fifth sort of bailment, viz. a delivery to earry or other wise manage, for a reward to be paid to the bailee, those cases are of two sorts; either a delivery to one that exercises a publick employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the com mon carrier, common hoyman, master of a ship, ete., which case of a master of a ship was first adjudged 26 Car. 2, in the ease of Mors v. Slew, Raym. 220. 1 Vent. 190, 238. The law charges this person thus intrusted to carry goods, against all events but acCONTRACTS 599 acts of God, and of the enemies of the King. For though the force be never so creat, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a poli tiek establishment, contrived by th poliey of the law, tor the safety of all persons, th ne ‘essity ot whose attairs oblie them to trust these sorts of persons, that they may be safe in their wavs of dealing ; for else thes carrie rs might have an opportunity of undoing all persons that had any dealings with them, by com binine with thieves. ete.. and yet doing it in such a clandestine manner, as would not be possibli TO b discovered. And this is the reason the law is founded upon in that point. The second sort are bailies, factors and such like. And though a bailee is to have a reward for his Management, vet he is only to do the best he ean. And if he be robbed, « uGs. it is a 200d account. And the rea- son of his being a servant is not the thing; for he is at a distance trom his master, and acts at discretion, receiving rents and selline corn, ete. And yet if he receives his master’s m mney, and keeps it lock’d up with a reasonabl eare, he shall not be answerable for it, though it be stolen. But vet this servant is not a domestick servant, nor under his master’s immediate care. But the true rea- son of the case is, it would be unreasonable to charge him with a trust, farther than the nature of the thing puts it in his power to pertorm it. But it is allowed in the other cases, by reason of the necessity of the thing. The same law of a factor. As to the sixth sort of bailment, it is to be taken, that the bailee is to have no reward for his pains, but yet that by his ill manage ment the goods are spoiled. Secondly, it is tO be understood, that there was a neglect in the management. But thirdly, if it had ap ps ared that the mischief happ ned by any person that met the cart in the way, the bailee had not been chargeable. As if a drunken man had come by in the streets, and had pierced the eask of brandy ; in this case the defendant had not been answe rable for te beeause he was to hav » nothing for his pains. Then the bailee, having undertaken to manage the goods, and havine managed them ill, and so by his neglect a damage has happened to the bailor, which is the case in question, what will you call this? In Bracton, lib. 3, 100, it is ealled mandatum. It is an obligation which arises ex mandalo. It is what we call in English an acting by commis- sion. And if a man acts by commission for another gratis, and in the executing his commission behaves himself negligently, he600 OBLIGATIONS is answerable. . . . This undertaking obliges the undertaker to a diligent management. . . . I don’t find this word in any other author of our law, besides in this place in Bracton, which is a full authority, if it be not thought too old. But it is supported by good reason and authority. The reasons are, first, because in such a case, a neglect is a de ceit to the bailor. For when he intrusts the bailee upon his un- dertaking to be careful, he has put a fraud upon the plaintiff by being negligent, his pretence of care being the persuasion that in- duced the plaintiff to trust him. And a breach of a trust under- taken voluntarily will be a good ground for an action. 1 Roll. Abr. 10. 2 Hen. 7, 11, a strong case to this matter. There, the case Was an action against a man, who had undertaken to keep an hundred sheep, for letting them be drown’d by his default. And there the reason of the judgment is given, because when the party has taken upon him to keep the sheep, and after suffers them to perish in his default; in as much as he has taken and executed his bargain, and has them in his custody, if after he does not look to them, an action les. For here is his own act, viz. his agreement and promise, and that after broke of his side, that shall give a suffi- cient cause of action. But, secondly, it is objected, that there is no consideration to ground this promise upon, and therefore the undertaking is but nudum pactum. But to this I answer, that the owner’s trusting him with the goods is a sufficient consideration to oblige him to a careful management. Indeed, if the agreement had been execu- tory, to carry these brandies from the one place to the other such a day, the defendant had not been bound to carry them. But this is a different case, for assumpsit does not only signify a future agreement, but in such a ease as this, it signifies an actual entry upon the thing, and taking the trust upon himself. And if a man will do that, and misearries in the performance of his trust, an action will he against him for that, though no body could have compelled him to do the thing. The 19 Hen. 6, 49, and the other cases cited by my brothers, shew that this is the difference. But m the 11 Hen. 4, 33, this difference is clearly put, and that is the only case concerning this matter, which has not been cited by my brothers. There, the action was brought against a carpenter, for that he had undertaken to build the plaintiff a house within such a time, and had not done it, and it was adjudged the action wouldCONTRACTS 601 ] not lie. But there the question wa put to the Court, what if he had built the house unskilfully, and it is agreed in that case an ae tion would have lain. There has been a question made, if I de- liver goods to A. and in consideration thereof he promise to re deliver them, if an action will lie for not re-delivering them; and in Yelv. 4, judgment was given that the action would lie. But that judement was afterwards revers’d, and according to that re versal, there was judgment afterwards entered for the defendant in the like ease. Welkv., 12%). But those cases were erumbled at. ancl the reversal of that judem« Mit le sae lv. +, was Sé id by the Judges to be a bad resolution, and the contrary to that reversal was afterwards most solemnly adjudged in 2 Cro. 667, Tr. 21 Jae. 1, in the Kine’s Bench, and that judgment atirmed upon a writ of error. And yet there is no benefit to the defendant, nor no con- ay ‘ : , . : ; sere : sideration 1n that case, but the having’ the money 1n his POSSE SS10n, and being’ trusted with Dla and yet that was held to be a 200d con vith another man’s goods, L sideration. And so a bare | must be taken to be a sutiicient considerati n, 14 the bailee once en ter upon the trust, and take the goods into his possession. The declaration in the case of JJors y. Slew was drawn by the greatest drawer in Eneland in that time, and in that de claration, as it was always in all such cases, it was thought most prudent to put in, that a reward was to be paid for the carriage. And so it has been usual to put it in the writ, where the suit is by original. I have said thus much in this case, because it 1s of great consequence, that the law should be settled in this point, but I don’t know whether I may have settled it, or may not rather have unsettled it. But however that happen, I have stirred these points, which wiser heads in time may settle. And judgment was given for the plain- tiff.? 111. Simple. All contracts other than those above discussed are called simple contracts and at common law are actionable only in an action of assumpsit. They are made up of two elements, offer and acceptance. The acceptance may be in the form of a counter promise or in the form of some other act in exchange for which the offerer proposes to give his promise. According- ly, simple contracts are of two kinds, (1) unilateral, where the acceptance is some act other than a promise and hence there is a promise upon one 10On bailment, see Dobie, Laws of Bailments and Carriers602 OBLIGATIONS side only; (2) bilateral, where the acceptance is itself a promise and hence there is a promise upon each side. The act in the case of a unilateral con- tract or the promise of the other party in the case of a bilateral contract —in other words, that which is given in exchange for the other’s promise, whereby it becomes binding legally—is called “consideration.” Harriman, Contracts, (2 ed.) §$ 646-652. See. 646. The Modern Theory of Simple Contracts.—While no one theory of contract will apply alike to formal and to simple contracts the courts have worked out a theory of simple contracts which is reasonably consistent and intelligible. This theory is that a promise creates obligation when it calls for certain action by the promisee, and when the promisee takes such action in reliance upon the promise. This may be called the consideration theory of contract, and has its origin in the development of the action of assumpsit from the action of deceit for breach of a parol promise. Another theory, having the same origin, is that the promise becomes binding though it calls for no specifie action, if the promisee acts reasonably in reliance upon it. This may be called the estoppel theory. It differs from the consideration the- ory in this that under the former theory the action which the prom- isee must take to turn the promise into a contract is marked out by the promise itself, while under the latter, any reasonable action by the promisee in reliance upon the promise will turn the promise into a contract. The close connection between the different forms of legal obligation called simple contract, equitable estoppel, and deceit is clearly apparent. All these rest upon this broad ethical principle, that every man is responsible for the natural conse- quences of his legal acts. If then, the natural consequence of A’s act 1s to produce a particular impression on B’s mind, in conse- quence of which B naturally does a certain act, A’s act renders lim responsible, to some extent and with some limitations for B’s act. ‘The extent and nature of such responsibility will be illus- trated by the following examples. Sec. 647. Simple Contract—The Consideration Theory.— A says to B, “I will give you $100 for your horse.” This statement of A’s induces B to believe that A will pay him $100 for the horse. Influenced by this belief, and relying on A’s promise, B gives his horse to A. A becomes bound to pay B $100, having induced B to do the act which A’s promise ealled for, and thereby becoming legally responsible for the promise,CONTRACTS 603 See. 648. Equitable Estoppel—A and B own adjoining lots. A says to B, “These two trees mark the boundary line between our lots.” The trees are in fact on A’s Jand. A induces B to believe hat the trees mark the true boundary line, and in reliance on A’s statement, B builds a house which is partly on A’s land. A is estopped to deny that the true boundary line is the one he pointed n reliance on his Statement. To out, having induced B to act create an estoppel of this character, there must be a representation of existing fact. Sec. 649. Simple Contract—The Estoppel Theory.—A prom ises to give $100 to the First Methodist Church. In reliance upon this promise the church buys a new organ. According to some courts, this action of the church makes A’s promise binding. Such courts call the action of the church the consideration for A’s prom- ise but the strict definition of consideration requires that it should be specifically indicated by the promise itself The reason for ca'line this theory the estoppel theory of contract is that this case ditfers from estoppel only in one particular, viz., that here A’s act is a promise instead of a representation of fact. See. 650. Deceit.—A represents to B that the horse which he wishes to sell B is sound. B is induced. by his representation to buy the horse. } but contrivine and fraudulently intending, eraftily and subtly. to deceive and defraud the pl Imi. te., which persisted to the present century, is an unmistakable mark of the gene alog’y of the action. Finally, the consideration must move from the plaintiff today, because only he who had incurred detriment upon the faith ot the detendant’s promise, could maint in the action on the case ror cleceit In the time of Henry Wall Wy spy ayy : on 6s : Indebitatus assumpsit, unlike special asswmpsit, did not create t; it was primarily only a new form of pro- a new substantive rig! cedure, whose introduction was facilitated by the same cireum- stances which had already mad Case coneurrent with Det Inue. But as an express assum psit was requisite to « harge the bail e, SO it | ] was for a lone time indispensable to charge a debtor. The basis or cause oO] the action was, ( f course, the same as the basis ot debt. 1.0... quid pro quo, or benefit. This may explain the in- veterate practice of defining consideration as either a detriment to the plaintiff or a benefit to the def ndant. Promises not being binding of themselves, but only because of the detriment or debt for which they were given, a need was naturally felt for a single word to express the additional and essen- tial requisite of all parol contracts. No word was so apt for the purpose as the word ‘‘econsideration.,”’ Soon atter the relen of Henry VI Ele it not earlier, it became the practice, in pleading, to lay ¢ l] assum pstts as made mn consideratione of the cetriment or < debt. And these words became the peculiar mark ot the technical action of assumpsit, as distinguished from other actions on the case against surgeons or carpenters, bailees and warranting vend- ors, in which, as we have seen, it was still customary to allege an undertaking by the defendant. It follows, from what has been written, that the theory that con- sideration is a “modification of quid pro quo,” is not tenable. On 29 or610 OBLIGATIONS the one hand, the consideration of indebitatus assumpsit was iden- tical with quid pro quo, and not a modification of it. On the other hand. the consideration of detriment was developed in a field of the law remote from debt; and, in view of the sharp contrast that has always been drawn between special asswmpsit and debt, it is im- possible to believe that the basis of the one action was evolved from that of the other. Nor can that other theory be admitted by which consideration was borrowed from equity, as a modification of the Roman “causa.” The word “consideration” was doubtless first used in equity; but without any technical significance before the sixteenth century. Consideration in its essence, however, whether in the form of detri- ment or debt, is a common-law growth. Uses arising upon a bar- eain or covenant were of too late introduction to have any influence upon the law of asswmpsit. Two out of three judges questioned their validity in 1505, a year after asswmpsit was definitely estab- lished. But we may go farther. Not only was the consideration of the common-law action of assumpsit not borrowed from equity, but, on the eontrary, the consideration, which gave validity to parol uses by bargain and agreement, was borrowed from the com- mon law. The bargain and sale of a use, as well as the agreement to stand seised, were not executory contracts, but conveyances. No action at law could ever be brought against a bargainor or covenantor. The absolute owner of land was conceived of as hay- ing in himself two distinct things, the seisin and the use. As he might make livery of seisin and retain the use, so he was per- mitted, at last, to grant away the use and keep the seisin. The grant of the use was furthermore assimilated to the grant of a chattel or money.