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CORNELL 
 
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arW8845 *^''""" """"""^ ^'"""^ 
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B Cornell University 
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THE AMERICAN STUDENTS BLACKSTONE. 
 
 COMMENTARIES 
 
 ON 
 
 THE LAWS OF ENGLAND ; 
 
 IN FOUE BOOKS, 
 
 BY 
 
 SIR WILLIAM BLACKSTONE, Knight, 
 
 ONE OP THE JUSTICES OF THE COURT OF COMMON PLEAS, 
 
 BO ABRIDGED AS TO RETAIN ALL PORTIONS OF THE ORIGINAL WORE WHICH ARE OF HISTORICAL 
 "*— ^ OR PRACTICAL VALUE, 
 
 WITH NOTES, AND REFERENCES TO AMERICAN DECISIONS; 
 
 FOR THE USE OF AMERICAN STUDENTS. 
 
 Br 
 GEORGE CHASE, LL. B., 
 
 PROFESSOR OF LAW IN THE NEW YORK LAW SCHOOL, NEW YORK CITY, AND DEAN OF 
 
 THE FACULTY ; EDITOR OF STEPHEN'S DIGEST OF THE LAW OF EVIDENCE 
 
 (AMERICAN EDITION). 
 
 THIRD EDITION. 
 
 NEW YORK: 
 BANKS & BEOTHEES, LAW PUBLISHEE8, 
 
 20 MURRAY STREET. 
 ALBANY : 475 BROADWAY. 
 
 1894, 
 
A4(e>a4-ll 
 
 Copyright. 
 
 GEORGE CHASE. 
 
 1877. 
 
 Copyright. 
 GEORGE CHASE. 
 
 Copyright. 
 
 GEORGE CHASE. 
 
 1890. 
 
NOTE TO SECOND EDITION. 
 
 To this edition several appendixes have been added, containing 
 special information for the assistance of the student ; also a new and 
 much fuller index than was contained in the former edition. Such 
 changes have also been made in the notes as were necessary to 
 adapt them to the present state of the law; and additional cases of 
 value have been cited. 
 
 G. C. 
 
 New York, January, 1884. 
 
 NOTE TO THIRD EDITION. 
 
 In this edition an additional appendix has been inserted, contain- 
 ing a translation of the Latin, French, and other foreign expressions 
 used by Blackstone. Important additions have also been made to 
 the other appendixes. 
 
 The notes running through the body of the work have been 
 brought down to date by necessary changes and the citation of 
 recent cases. 
 
 G. C. 
 
 New York, October, 1890. 
 
PREFACE. 
 
 The unrivalled merits of Blackstone's Commentaries as an ele- 
 mentary treatise upon the principles of the common law are as fully 
 recognized to-day as at any time in the past, as is attested by the fact 
 that no work is so commonly used as this for purposes of preliminary 
 legal instruction either by lawyers in their offices or by professional 
 instructors in schools and colleges of law. The clearness, grace, and 
 elegance of style, the lucid precision of statement, the happy union 
 of conciseness with great comprehensiveness of treatment, the orderly 
 and logical development of legal topics, the attentive regard to the 
 needs of students exhibited by the frequent explanations of technical 
 expressions, by the abundance of illustration, and by the careful un- 
 folding of the reasons upon which particular principles of law are 
 founded, — these are qualities which have rendered, and still render, 
 the work admirably adapted for purposes of education, and have 
 made it particularly attractive to students and general readers. But 
 notwithstanding these acknowledged merits, it is now generally recog- 
 nized that these Commentaries, in their original form, have been by 
 the lapse of time, rendered less useful than formerly for purposes of 
 instruction, since students find in them not only the body of the liv- 
 ing law, but also much that is dead law, and are thereby confused 
 and perplexed. Considerable portions of the original text have 
 become wholly obsolete, and are of little or no importance, even on 
 historical grounds. The mind of the learner is thus uselessly be- 
 wildered with unimportant details which burden the memory, and 
 give erroneous ideas as to the present state of the law. This defect 
 is all the more serious from the fact that students read this work at 
 the outset of their studies, when they have no fund of acquired legal 
 knowledge which would enable them to discriminate between those 
 principles which are still in force, and those which have ceased to be 
 a part of the law. A large part of the origmal work is, moreover, 
 given up to the consideration of topics which relate exclusively to the 
 English governmental and ecclesiastical system, and are of little 
 value to the American student, particularly at the beginning of his 
 
iv PREFACE. 
 
 legal studies. These chapters are seldom, if ever, studied in this 
 country, and have lost much of their original importance even to 
 English students, having been in large measure superseded by able 
 treatises of a later date upon the British constitution. It is a further 
 defect in the Commentaries that some legal topics of great impor- 
 tance are treated with undue brevity or are scarcely noticed at all. 
 Particularly is this remark applicable to the chapters upon the 
 Domestic Relations and to those treating of Criminal Law. Such 
 subjects, for instance, as the responsibility of masters for the wrong- 
 ful acts of their servants, or the liability of infants for their acts, are 
 most meagrely and inadequately treated. In criminal law the sujjjects 
 of Embezzlement and False Pretences are not considered, while 
 Larceny and Forgery are discussed with insufficient fullness. The im- 
 portant topic of Easements, in the law of real property, is also almost 
 entirely undeveloped, only a single variety of easements (that of 
 " Ways ") being referred to. So the subject of Fixtures is not dis- 
 cussed, notwithstanding its great consequence in real estate law. 
 The law of Landlord and Tenant is also very meagrely presented. 
 The same is true of the law of Bailment and other important sub- 
 jects. 
 
 The object of this edition has been to retain all the conspicuous 
 and acknowledged merits of the Commentaries in their unabridged 
 form, while the defects and imperfections which impair the usefulness 
 of the work are carefully removed. Obsolete matter, which is of no 
 historical value as regards the development of the law as a scientific 
 system of principles, has been omitted, wherever this could be done 
 without destroying the connection of thought. The chapters which 
 relate to the English form of government, as for example, those treat- 
 ing of the " King's Royal Family," the " King's Revenue," etc., have 
 also been omitted, as of no importance to the American student in an 
 elementary treatise upon the general principles of the common law. 
 Subjects insufficiently developed in the original work are discussed in 
 the copious notes v hich are appended to the text. 
 
 But it should be remarked that while omissions have been made of 
 unimportant matter, everything has been retained which is of either 
 historical or practical value for the student of law. Much that is 
 obsolete is yet of great historical value, and this has been sedulously 
 retained ; as, for example, such topics as the feudal system, fines and 
 recoveries, the ecclesiastical courts of England, the benefit of clergy, 
 practice and pleading at common law, etc. It is of fundamental con- 
 
PREFACE. V 
 
 sequence that these topics should be thoroughly studied, in order to 
 gain an insight into the historical development of the law. All por- 
 tions of the original work which state the principles of the living law 
 will be found in this edition in a complete and unaltered form. The 
 text of this edition is in Blackstone's own language, no changes hav- 
 ing been made, except to make omissions of chapters or passages. 
 The only exception to this is in the chapter on Bankruptcy (pp. 583- 
 588), where the provisions of statutes now in force have been stated 
 in lieu of those in force when Blackstone wrote. The preservation of 
 the exact language of the original work has been deemed of prime 
 importance, that Blackstone's inimitable style might not suffer detri- 
 ment. Inadequacy of treatment or inaccuracy of statement has been 
 corrected by the insertion of notes, not by altering the text. 
 
 The abundant notes which have been added by the editor through- 
 out the work, are intended to afford a fuller elucidation of important 
 principles, to illustrate the statements of the text by decisions drawn 
 from the leading American reports, to exhibit whatever marked 
 changes have been made in the law in the course of adjudication or 
 by specific legislation, to correct inaccuracies of statement, and in 
 various ways to supplement the original text and repair its deficien- 
 cies. These notes have been made as concise as is consistent with 
 adequate comprehensiveness, and it has been attempted to make them 
 as clear and elementary in style as the text of the work itself The 
 editor has found in his own experience that the extensive annotations 
 usually appended to editions of Blackstone confuse and perplex 
 students rather than enlighten and assist them, since they consist too 
 much of minutely detailed statements of nice legai distinctions, ex- 
 pressed oftentimes in technical phraseology, rather than state the 
 general principles of law in a systematic form. But Blackstone only 
 intended his treatise to be elementary, stating fundamental legal 
 doctrines, and the notes should be in the same form. Such has been 
 the editor's purpose, and it is hoped that the notes will be found 
 clear, accurate, and eminently readable. 
 
 A few notes have been retained from various English editions. 
 These are designated either by the name of the author, or by being 
 enclosed in brackets. Blackstone's own notes are designated by the 
 letters of the alphabet. For the other notes the editor himself is 
 responsible. 
 
 In the first two books of the Commentaries, the chapters which 
 have been retained have been preserved intact, in nearly every instance, 
 
VI 
 
 PREFACE. 
 
 and the paging of the original edition has been inserted in the margin 
 for convenience of reference. And throughout this edition, the num- 
 bering of the original chapters has been prefixed in brackets at the 
 head of each chapter. In this way this edition can be used in con- 
 nection with the unabridged edition, since lessons can be assigned to 
 classes by the original chapters and paging. In the third and fourth 
 books the marginal paging has not been retained, as it was found im- 
 practicable to preserve the chapters intact, obsolete matter being 
 sometimes necessarily omitted in the very midst of chapters. By a 
 judicious condensation of these two books, it is believed that they 
 have been rendered much more readable, and afford a more satisfac- 
 tory presentation of the law in its present condition. The chapters 
 on criminal law, for instance, abounded with statements of the pro* 
 visions of ancient statutes, which are now wholly obsolete, and have 
 been superseded by later legislation. Owing to this cause, the study 
 of these two books has proved both bewildering and unsatisfactory. 
 In this edition the living law has been retained, the dead matter cut 
 away. 
 
 This edition is now sent forth for the use of American students, in 
 the hope and wish that it may render the study of this famous legal 
 classic more attractive and more profitable, and that it may prove a 
 valuable aid at their introduction into legal study. If it serve no 
 better purpose than to guide the student and general reader in de- 
 termining what portions of the Commentaries he should read, 'its use- 
 fulness, it is believed, will b'e cordially appreciated. This has long 
 been the great difficulty with students in undertaking to read Black- 
 stone. Some read everything in order to lose nothing valuable, and 
 thus burden the memory with much useless and obsolete matter. 
 Others omit whatever is obsolete, and thus fail to read much that is 
 of great historical importance. In this edition, everything in the 
 original text has been included which the editor's experience has led 
 him to conclude should be read by students, and its contents should 
 therefore be diligently studied from cover to cover. It contains 
 whatever portions of the original text are studied in the law schools 
 of this country, so that it will serve both for students in such institu- 
 tions and for those who study by themselves or in offices. To the 
 considerate judgment of law students and of legal instructors 
 throughout the country, it is hopefuUv submitted. 
 
 G. C. 
 
 Hew York, October, 1877, 
 
CONTENTS. 
 
 INTRODUCTION. 
 
 OF THE NATURE AND EXTENT OF THE LAWS OF ENGLAND. 
 
 Section I. — Of the Nature of Laws in General. 
 
 Paob 
 
 Definition of law. — Law of nature. — Law of nations. — Municipal 
 
 law. — The diverse forms of government, democracy, aristocracy, 
 and monarchy. — The British Constitution. — The constituent parts 
 of every law, the declaratory, the directory, the remedial, and the 
 vindicatory. — The interpretation of laws I 
 
 Section IL — Of the Laws of England. 
 
 Municipal law divisible into the unwritten or common law, and the 
 written or statute law. — The unwritten law includes (i) general 
 customs, (2) particular customs, (3) particular laws. — The system of 
 precedents. — Legal reports. — The requisites of particular customs. 
 — The civil or Roman law. — The canon law. — The written or 
 statute law. — The construction of statutes ig 
 
 BOOK THE FIRST. 
 
 OF THE RIGHTS OF PERSONS. 
 
 CHAPTER I. 
 
 OF THE ABSOLUTE RIGHTS OF INDIVIDUALS. 
 
 Rights absolute and relative. — Absolute rights declared and guaranteed 
 by various acts of Parliament, as Magna Charta, the Petition of 
 Right, the Bill of Rights, the Habeas Corpus Act, and the Act of 
 Settlement. — Absolute rights are (i) the right of personal security, 
 ■ (2) the right of personal liberty, (3) the right of private property. — 
 Securities for the enjoyment of these rights . . . .61 
 
 CHAPTER n. 
 
 OF SUBORDINATE MAGISTRATES. 
 
 The sheriff. — The coroner. — ^Justices of the Peace.— 'The constable. — 
 Surveyors of Highways. — Overseers of the Poor . . . • 8j 
 
 CHAPTER in. 
 
 OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES. 
 
 Allegiance, natural or local. — Who are aliens. — Their disabilities.— 
 
 Denizens. — Naturalization. — Citizenship — Expatriation , 114 
 
viii CONTENTS. 
 
 CHAPTER IV. 
 
 OF MASTER AND SERVANT, 
 
 Pao« 
 The various kinds of servants ; slaves, menial servants, apprentices, 
 laborers, stewards, etc. — The manner in which the relation of ser- 
 vice affects either the master or the servant. — Responsibility of the 
 master to the servant for injuries. — Liability of the master for the 
 acts of the servant. — Distinction between servants and contractors 2( 
 
 CHAPTER V. 
 
 OF HUSBAND AND WIFE. 
 
 The contract of Marriage. — How made. — The disabilities which prevent 
 a valid marriage ; consanguinity, affinity, corporeal infirmity, po- 
 lygamy, want of age, want of consent of parents or guardian?, want 
 of mental soundness. — How marriages may be dissolved. — Divorce 
 a vinculo matrimonii. — Divorce a mensd et thoro. — Legal conse- 
 quences of marriage and of divorce 141 
 
 CHAPTER VL 
 
 OF PARENT AND CHILD. 
 
 Legitimate children. — The duties of parents towards them ; mainte- 
 nance, protection and education. — The power of parents over their 
 children. — The duties of children to parents. — Illegitimate children i6a 
 
 CHAPTER VII. 
 
 OF GUARDIAN AND WARD. 
 
 The several kinds of guardians. — The powers and duties of guardians. 
 — Infancy. — The privileges and disabilities of infants. — An infant's 
 liability upon contract. — For torts. — For crimes . . , 175 
 
 CHAPTER VIII. 
 
 OF CORPORATIONS. 
 
 The nature of corporations. — Corporations divided into aggregate and 
 sole. — Into ecclesiastical and lay. — Lay corporations divided into 
 civil and eleemosynary. — Public and private corporations. — The 
 modes of creating corporations. — Their powers, privileges and dis- 
 abilities. — The visitation of corporations. — Their dissolution . 184 
 
 BOOK THE SECOND. 
 OF THE RIGHTS OF THINGS. 
 
 CHAPTER I. 
 
 OF PROPERTY IN GENERAL. 
 
 The origin of property.— Occupancy.— Origin of rights of succession . 20-! 
 
CONTENTS. ix 
 
 CHAPTER 11. 
 
 OF REAL property; AND FIRST OF CORPOREAL HEREDITAMENTS. 
 
 Fagb 
 
 Definitioa of lands, tenements, and hereditaments. — Corporeal heredita- 
 ments 219 
 
 CHAPTER ni. 
 
 OF INCORPOREAL HEREDITAMENTS. 
 
 Commons. — Ways. — Easements. — Franchises. — Annuities. — Reats . 223 
 
 CHAPTER IV. 
 
 OF THE FEUDAL SYSTEM. 
 
 Origin of feuds. — Osfth of fealty. — Qualities of feuds . . . .241 
 
 CHAPTER V. 
 
 OF THE ANCIENT ENGLISH TENURES. 
 
 Knight-service and its consequences. — Aids. — Relief. — Primer seizin. — 
 Wardship. — Knighthood. — Marriage. — Fines for alienation. — Es- 
 cheat. — Origin of scutages. — Abolition of military tenures . . 254 
 
 CHAPTER VI. 
 
 OF THE MODERN ENGLISH TENURES. 
 
 Socage-tenures. — Petit serjeanty. — Burgage. — Gavelkind. — Incidents of 
 socage-tenure. — Pure villenage. — Manors. — Copyholds. — Villein- 
 socage. — Ancient demesne. — Frankalmoign 269 
 
 CHAPTER VII. 
 
 OF FREEHOLD ESTATES OF INHERITANCE. 
 
 Definition of Freehold. — Tenancy in fee-simple — Incidents of estates in 
 
 fee. — Limited or qualified fees. — Estates-tail 287 
 
 CHAPTER VIII. 
 
 OF FREEHOLDS, NOT OF INHERITANCE. 
 
 Estates for life. — Incidents of such estates. — Estovers. — Emblements. — 
 Estate-tail after possibility of issue extinct. — Estate by the cur- 
 tesy. — Estate in dower. — ^Jointures 303 
 
 CHAPTER IX. 
 
 OF ESTATES LESS THAN FREEHOLD. 
 
 Estates for years. — Incidents of such estates. — Estates at will. — Estates 
 at sufferance 322 
 
X CONTENTS. 
 
 CHAPTER X. 
 
 OF ESTATES UPON CONDITION. 
 
 Page. 
 
 Conditions express or implied. — Conditions and limitations distin- 
 guished — Conditions precedent and subsequent. — Mortgages.— Stat- 
 ute merchant and statute staple. — Elegit 33' 
 
 CHAPTER XI. 
 
 OF ESTATES IN POSSESSION, REMAINDER AND REVERSION. 
 
 I, Estates in possession. II. Estates in remainder. — Executory de- 
 vises. III. Estates in reversion. — Incidents thereof. — Merger . 34/ 
 
 CHAPTER XII. 
 
 OF ESTATES IN SEVERALTY, JOINT-TENANCY, CO-PARCENARY AND 
 
 COMMON. 
 
 I. Severalty. II. Joint-tenancy. — How Created. — Its properties and 
 incidents. — Survivorship. III. Coparcenary. IV. Tenancy in 
 Common. — How created. — Its incidents. — Partition . . 358 
 
 CHAPTER XIII. 
 
 OF THE TITLE TO THINGS REAL IN GENERAL. 
 
 Title defined. — Naked possession, distinguished from rz^.4^ of possession, 
 xad \h^ right of property 371 
 
 CHAPTER XIV. 
 
 OF TITLE BY DESCENT. 
 
 Consanguinity, lineal and collateral. — Degrees of relationship, how 
 
 reckoned. — Canons of descent 375 
 
 CHAPTER XV. 
 
 OF TITLE BY PURCHASE, AND FIRST, BY ESCHEAT. 
 
 Definition of Purchase. — Escheat. — Distinction between escheat and 
 
 forfeiture. — Corruption of blood .... ... 399 
 
 CHAPTER XVI. 
 
 OF TITLE BY OCCUPANCY. 
 
 General and Special Occupancy. — Alluvion. — Dereliction . . . ^.jj 
 CHAPTER XVII. 
 
 OF TITLE BY PRESCRIPTION. 
 
 Custom iistinguished from prescription. — What maybe prescribed for 418 
 
CONTENTS. xi 
 
 CHAPTER XVIII. 
 
 OF TITLE BY FORFEITURE. 
 
 Pack 
 
 forfeiture for Crime. — By alienation in mortmain. — By alienation to an 
 alien. — By tortious alienation of too great an estate. — By disclaim- 
 er. — By waste. — By bankruptcy 422 
 
 CHAPTER XIX. 
 
 OF TITLE BY ALIENATION. 
 
 Feudal restraints upon alienation. — Who may alien and to whom. — 
 Infants. — Persons of unsound mind. — Married women. — Aliens . 434 
 
 CHAPTER XX. 
 
 OF ALIENATION BY DEED. 
 
 The nature of deeds. — Contracting parties. — Consideration. — Writing. 
 — Contents of deeds. — Premises. — Habendum. — Tenendum. — Red- 
 dendum. — Conditions. — Covenants. — Conclusion. — Signing, seal- 
 ing and delivering of deeds. — Attestation. — How deeds may be 
 avoided. — The several species of deeds. — Original Conveyances, 
 viz.: Feoffment; Gift; Grant; Lease; Exchange; Partition. — 2?^- 
 rivative Conveyances, viz. ; Release ; Confirmation ; Surrender ; 
 Assignment ; Defeasance. — Deeds tinder Statute of Uses, viz. : , 
 Covenant to stand seized ; Bargain and Sale ; Lease and Release. 
 — Other Deeds/ Bonds; Recognizances; Defeazances . . . 441 
 
 CHAPTER XXI. 
 
 OF ALIENATION BY MATTER OF RECORD. 
 
 Private Acts of Parliament. — Letters Patent. — Fines. — Common Re- 
 coveries , . t 483 
 
 CHAPTER XXII. 
 
 OF ALIENATION BY DEVISE. 
 
 Origin of Wills. — Statute of Wills. — Requisites of Devises. — Construc- 
 tion of conveyances 497 
 
 CHAPTER XXIII. 
 
 OF THINGS PERSONAL. 
 
 Chattels Real.— Chattels Personal 508 
 
 CHAPTER XXIV. 
 
 OF PROPERTY IN THINGS PERSONAL. 
 
 Property in possession. — Absolute property. — Qualified property. — In 
 animals. — In things personal. — Property in action. — Interests in ex- 
 pectancy 'n chattels. — Joint ownership. — Ownership in common . 511 
 
xii CONTENTS. 
 
 CHAPTER XXV. 
 
 OF TITLE TO THINGS PERSONAL BY OCCUPANCY. 
 
 Captures from enemy. — Goods abandoned — Elements. — Animals ferit 
 natures. — Emblements. — Accession. — Confusion. — Title by literary 
 labor. — Copyright. — Patents 5** 
 
 CHAPTER XXVI. 
 
 OF TITLE BY PREROGATIVE AND FORFEITURE. 
 
 Taxes and customs. — Copyright. — Game. — Forfeiture for crime . . 5i« 
 CHAPTER XXVII. 
 
 OF TITLE BY CUSTOM. 
 
 Heir looms 535 
 
 CHAPTER XXVIII. 
 
 OF TITLE BY SUCCESSION, MARRIAGE AND JUDGMENT. 
 
 Title by succession in corporations aggregate and sole. — Title by mar- 
 riage. — To wife's chattels real. — Chattels personal. — Choses in action. 
 — Paraphernalia. — Title by judgment. — Damages .... 538 
 
 CHAPTER XXIX. 
 
 OF TITLE BY GIFT, GRANT AND CONTRACT. 
 
 Title by gift. — Title by contract : Agreements, express and implied ; 
 consideration ; nudum pactum ; the most usual contracts, viz. : Sale 
 or exchange ; bailment; hiring and borrowing ; interest; insurance; 
 annuities; debts of record, by specialty, by simple contract; bills 
 of exchange and promissory notes 546 
 
 CHAPTER XXX. 
 
 OF TITLE BY BANKRUPTCY. 
 
 Bankruptcy defined. — Insolvency. — The statutes of bankruptcy — Acts of 
 Bankruptcy. — Method of obtaining a discharge. — The bankrupt law 
 of :he United States. — Composition deeds. — Assignment for the 
 benefit of creditors 
 
 5 '9 
 
 CHAPTER XXXI. 
 
 OF TITLE BY TESTAMENT AND ADMINISTRATION. 
 
 1 he origin of testaments and administrations. — Who may make a testa- 
 ment. — Requisites of testaments. — Intestacy. — Right to administra. 
 tion. — Duties of executors and administrators. — Legacies. — Statute 
 of distributions 
 
 ;«j 
 
CONTENTS. 
 
 BOOK THE THIRD. 
 OF PRIVATE WRONGS. 
 
 CHAPTER I. 
 
 OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF 
 
 THE PARTIES. 
 
 Page. 
 
 Self-defense. — Recaptaon of Goods. — Entry on land. — Abatement of nui- 
 sances. — Distress. — Accord and satisfaction. — Arbitration . 6i 7 
 
 CHAPTER II. 
 
 OF COURTS IN GENERAL. 
 
 Courts of record and not of record. — Attorneys. — Counsel . . . 625 
 
 CHAPTER III. 
 
 OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY. 
 
 The Court of Common Pleas. — King's Bench. — Exchequer. — Exche- 
 quer Chamber. — Court of Chancery. — House of Lords. — Courts of 
 Assize and Nisi Prius 631 
 
 CHAPTER IV. 
 
 OF COURTS ECCLESIASTICAL AND MARITIME. 
 
 The several ecclesiastical courts. — Court of Admiralty . . . 654 
 
 CHAPTER V. 
 
 OF THE COGNIZANCE OF PRIVATE WRONGS. 
 
 The jurisdiction of ecclesiastical courts ; pecuniary causes ; matri- 
 monial causes ; testamentary causes. — ^Jurisdiction of Court of Ad- 
 miralty. — Peculiar remedies of courts of \im.— procedendo; man- 
 damus (j6i 
 
 CHAPTER VI. 
 
 OF WRONGS AND THEIR REMEDIES RESPECTING THE RIGHTS OF 
 PERSONS. 
 
 Injuries affecting personal security ; injuries to life ; to limb or body ; 
 assault and ba'.tery ; injuries to health ; injuries to reoutation ; slan 
 
xiv Contents. 
 
 Faoi 
 
 der, libel, malicious prosecution. — Injuries affecting personal lib- 
 erty; false imprisonment ; habeas <:(?r/»j.— Injuries affecting relative 
 rights of persons; abduction of wife ; adultery; seduction of child; 
 injury to servant "^' 
 
 CHAPTER VII. 
 
 OF INJURIES TO PERSONAL PROPERTY. 
 
 Unlawful taking.- -Action of replevin.— Unlawful detainer. — Action of 
 detinue.— Of trover.— Of debt.— Of covenant.— Statute of Frauds.— 
 Assumpsit. — Warranties 699 
 
 CHAPTER VIII. 
 
 OF INJURIES TO REAL PROPERTY; AND FIRST, OF DISPOSSESSION 
 OR OUSTER OF THE FREEHOLD. 
 
 Abatement.— Intrusion.— Disseizin.— Remedy by entry.— By writ of 
 entry.— By writ of assize.— By writ of right 717 
 
 CHAPTER IX. 
 
 OF DISPOSSESSION, OR OUSTER OF CHATTELS REAL. 
 
 Ouster defined. — The action of ejectment 7^8 
 
 CHAPTER X. 
 
 OF TRESPASS. 
 
 Trespass defined. — When justifiable. — Trespass ab initio . , /^4 
 
 CHAPTER XI. 
 
 OF NUISANCE. 
 
 Nuisance to corporeal hereditaments. — To incorporeal hereditaments. 
 — Remedies at law and in equity ....... 738 
 
 CHAPTER XII. 
 
 OF WASTE. 
 
 Waste defined. — Who may be injured by waste. — Remedies at law and 
 
 in equity 74} 
 
 CHAPTER XIII. 
 
 OF INJURIES PROCEEDING FROM OR AFFECTING THE CROWN OR 
 
 STATE. 
 
 Injuries from the crown to property. — Remedy by petition of right; by 
 monstrans de droit. — Injuries affecting the crown. — Remedy by 
 action ; by inquest of oflfice ; by scire facias ; by intormation ■ by 
 quo warranto ; by mandamus ........ ^.^j 
 
CONTENTS. XV 
 
 CHAPTER XIV. 
 
 OF THE PURSUIT OF REMEDIES BY ACTION ; AND FIRST, OF THE 
 ORIGINAL WRIT. 
 
 Pagk 
 
 The original writ. — The terms of court , • 754 
 
 CHAPTER XV. 
 
 OF PROCESS. 
 
 Summons. — Attachment — Distringas. — Capias ad respondendum. — Out- 
 lawry.— Bill of- Middlesex. — Latitat. — Quo minus. — Arrest — Ap- 
 pearance. — Bail 755 
 
 CHAPTER XVI, 
 
 OF PLEADING. 
 
 Declaration. — Venue.— Counts. — Non-suit. — Discontinuance. — Defense. 
 — Dilatory pleas. — Pleas to the action; pleas in confession and 
 avoidance ; pleas in bar ; general issue ; special pleas ; the replica- 
 tion, rejoinder, etc 769 
 
 CHAPTER XVII. 
 
 OF ISSUE AND DEMURRER. 
 
 Issues in fact and in law. — Demurrers, general and special. — Joinder in 
 demurrer 782 
 
 CHAPTER XVin 
 
 OF THE TRIAL BY JURY. 
 
 Origin of trial by jury. — Venire facias. — Summoning and selection 
 of jurors. — Challenges to the array and to the polls. — Opening the 
 case to the jury. — General rules of evidence. — Witnesses. — Pre- 
 sumptions. — Bill of exceptions. — Demurrer to evidence. — Verdict 786 
 
 CHAPTER XIX. 
 
 OF JUDGMENT AND ITS INCIDENTS. 
 
 1 he postea.—^t^ trial. — Arrest of judgment. — Interlocutory and final 
 judgments. — Costs 803 
 
 CHAPTER XX. 
 
 OF PROCEEDINGS IN THE NATURE OF APPEALS. 
 
 Writ of error. — Amendments ... 811 
 
 B 
 
xvi CONTENTS. 
 
 CHAPTER XXI. 
 
 OF EXECUTION. 
 
 Paos 
 
 Writs of execution; habere facias seisinam or possessionem; de 
 
 retorno habendo; capias ad satisfaciendum j fieri facias ; levari 
 
 facias J elegit; extent 813 
 
 CHAPTER XXII. 
 
 OF PROCEEDINGS IN THE COURTS OF EQUITY. 
 
 General nature of equity. — Mode of proof. — Mode of trial. — Mode 
 of relief. — Jurisdiction of courts of equity ; as to infants, lunatics, 
 married women, charities, trusts, mortgages, accounts, fraud, acci- 
 dent, mistake, etc. — The method of procedure in courts of equity. 820 
 
 BOOK THE FOURTH. 
 
 OF PUBLIC WRONGS. 
 
 CHAPTER I. 
 
 OF THE NATURE OF CRIMES AND THEIR PUNISHMENT. 
 
 General nature of crimes and punishments. — End of punishment. — 
 Measure of punishment 845 
 
 CHAPTER II. 
 
 OF THE PERSONS CAPABLE OF COMMITTING CRIMES. 
 
 Infants. — Idiots and lunatics. — Drunkards. — Effect of ignorance or mis- 
 take. — Of duress or compulsion 860 
 
 CHAPTER III. 
 
 OF PRINCIPALS AND ACCESSORIES. 
 
 Principal in the first degree. — in the second degree. — Accessory before 
 the fact. — rafter the fact. — Punishment 873 
 
 CHAPTER IV. 
 
 OF OFFENSES AGAINST THE LAW OF NATIONS. 
 
 Violation of safe-conducts, or passports. — Infringement of the rights 
 of ambassadors. — Piracy 879 
 
 CHAPTER V. 
 
 OF HIGH TREASON. 
 
 Compassing death of King. — Violation of Queen, etc. — Levjang war 
 against the King. — Adhering to King's enemies .... 884 
 
CONTENTS. xvii 
 
 CHAPTER VI. 
 
 OF FELONIES. 
 
 Pagb. 
 Definition oi felony. — Origin of the term 893 
 
 CHAPTER VII. 
 
 OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING AND 
 GOVERNMENT. 
 
 Misprision of treason. — of felony. — Positive misprisions. — Contempts 
 against King's courts of justice 897 
 
 CHAPTER VIII. 
 
 OF OFFENSES AGAINST PUBLIC JUSTICE. 
 
 Obstnicting process. — Escape. — Breach of Prison. — Rescue. — Receiv- 
 ing stolen goods. — Compounding of felony. — Barretry. — Main- 
 tenance. — Champerty. — Conspiracy. — Perjury. — Bribery. — Embra- 
 cery. — Extortion 901 
 
 CHAPTER IX. 
 
 OF OFFENSES AGAINST THE PUBLIC PEACE. 
 
 Riotous assembly. — Affrays. — Riots, routs, and unlawful assemblies. — 
 Forcible entry and detainer. — Challenges to fight. — Libels . 1 912 
 
 CHAPTER X. 
 
 OF OFFENSES AGAINST PUBLIC TRADE. 
 
 Smuggling. — Fraudulent bankruptcy,— Usury. — Cheating . . , 919 
 
 CHAPTER XI. 
 
 OF OFFENSES AGAINST THE PUBLIC POLICE OR ECONOMY. 
 
 Bigamy. — Common nuisances 924 
 
 CHAPTER XII. 
 
 OF HOMICIDE. 
 
 (I) Justifiable homicide. — From necessity. — For advancement of justice. 
 — For prevention of crime. — (2) Excusable homicide. — From mis- 
 adventure. — In self-defense. — (3) Felonious homicide. — Felodese. — 
 Manslaughter. — Murder. — Malice. — Punishment .... 927 
 
 CHAPTER XIII. 
 
 OF OFFENSES AGAINST THE PERSONS OF INDIVIDUALS. 
 
 Mayhem. — Abduction. — Rape. — Crime against nature. — Assault and 
 battery. — False imprisonment. — :Kidnapping 9J5 
 
 fi 
 
xviii CONTENTS. 
 
 CHAPTER XIV. 
 
 OF OFFENSES AGAINST THE HABITATIONS OF INDIVIDUALS. 
 
 Pagc 
 
 Arsoi. —Burglary ; time, place and manner of committing this ofEense . 956 
 
 CHAPTER XV. 
 
 OF OFFENSES AGAINST PRIVATE PROPERTY. 
 
 Larceny. — Definition. — Element of trespass involved in this offense. — 
 The caption and asportation. — The kinds of property which may be 
 the subject of larceny. — Compound larceny. — Larceny from the 
 person. — Robbery. — Malicious mischief. — Forgery . . . 963 
 
 CHAPTER XVL 
 
 OF THE MEANS OF PREVENTING OFFENSES. 
 
 Sureties for the peace or for good behavior. — Who may demand them. — 
 
 How discharged 980 
 
 CHAPTER XVIL 
 
 OF COURTS OF A CRIMINAL JURISDICTION. 
 
 High Court of Parliament. — King's Bench. — High Court of Admiralty. 
 — Oyer and Terminer. — General jail delivery. — Quarter Sessions . 984 
 
 CHAPTER XVin. 
 
 OF SUMMARY CONVICTIONS. 
 
 Nature of summary proceedings. — For frauds upon revenue. — Summary 
 convictions for vagrancy, idleness, drunkenness, etc. — ^Attachment 
 for contempts 991 
 
 CHAPTER XIX. 
 
 OF ARRESTS. 
 
 (l) By warrant. — (2) By an officer without warrant. — (3) By private 
 
 pel sons without warrant. — (4) By hue and cry ggfi 
 
 CHAPTER XX. 
 
 OF COMMITMENT AND BAIL. 
 
 Examination of the accused. — Admitting to bail. — What offenses 
 bailable . . loo^ 
 
CONTENTS. xix 
 
 CHAPTER XXI. 
 
 OF THE SEVERAL MODES OF PROSECUTION. 
 
 Presentment. — Indictment by grand jury. — Requisites of an indict- 
 ment. — Informations 1004 
 
 CHAPTER XXII. 
 
 OF PROCESS UPON AN INDICTMENT. 
 
 Venire facias. — Distress infinite. — Capias. — Outlawry. — Certiorari . loil 
 CHAPTER XXIII. 
 
 OF ARRAIGNMENT AND ITS INCIDENTS. 
 
 Arraignment defined. — Standing mute. — Peine forte et dure. — Con- 
 fession 1014 
 
 CHAPTER XXIV. 
 
 OF PLEA AND ISSUE. 
 
 Plea to the jurisdiction. — Demurrer. — Plea in abatement. — Special 
 pleas in bar ; autrefoits acquit; autrefoits convict; autrefoits 
 attaint; pardon. — General issue 1017 
 
 CHAPTER XXV. 
 
 OF TRIAL AND CONVICTION. 
 
 Trial by ordeal. — By the corsned. — By battel. — By jury. — Summoning 
 
 the jury — Challenges. — Rules of evidence. — Verdict . . . 1022 
 
 CHAPTER XXVI. 
 
 OF THE BENEFIT OF CLERGY. 
 
 Definition. — In what cases allowable 1030 
 
 CHAPTER XXVII. 
 
 OF JUDGMENT AND ITS CONSEQUENCES. 
 
 A.rrest of judgment. — Pardon. — Consequences of judgment. — Attain- 
 der. — Forfeiture. — Corruption of blood 1034 
 
 CHAPTER XXVIII. 
 
 OF REVERSAL OF JUDGMENT. 
 
 By avoiding the judgment — without writ of error — by writ of error. 
 
 — By Act of Parliament .,...« . . tt.ao 
 
XX CONTENTS. 
 
 CHAPTER XXIX. 
 
 OF REPRIEVE AND PARDON. 
 
 When a reprieve may be granted. — The object and manner of pardon- 
 ing. — The effect of a pardon J041 
 
 CHAPTER XXX. 
 
 OF EXECUTION. 
 
 The duty of the sherifi lo44 
 
INTRODUCTION. 
 
 •;F the nature and extent of the laws of ENGLAND. 
 
 SECTION I. 
 [bLACKSTONe's COMM. — INTRODUCTION. — SECTION IL] 
 Of the Nature of Laws in General. 
 
 Law, in its most general and comprehensive sense, signifies 
 a rule of action ; and is applied indiscriminately to all kinds of 
 action, whether animate or inanimate, rational or irrational. 
 Thus we say, the laws of motion, of gravitation, of optics, or 
 mechanics, as well as the laws of nature and of nations. And 
 it is that rule of action which is prescribed by some superior, 
 and which the inferior is bound to obey.^ 
 
 ' " The word ' law ' has come down to us in close association with two 
 notions, the notion of order and the notion of force. The association is 
 of considerable antiquity, and is disclosed by a considerable variety of 
 languages ; and the problem has repeatedly suggested itself, which of the 
 two notions thus linked together is entitled to precedence over the other, 
 which of them is first in point of mental conception ? The answer, be- 
 fore the Analytical Jurists * wrote, would on the whole have been, that 
 'law' before all things implied order. 'Law, in its most general and 
 comprehensive sense, signifies a rule of action, and is applied indis- 
 criminately to all kinds of action, whether animate or inanimate, rational 
 or irrational. Thus we say, the laws of motion, of gravitation, of optics 
 or mechanics, as well as the laws of nature and of nations.' With these 
 words Blackstone begins his chapter on 'The Nature of Laws in Gen- 
 eral.' • * The Analytical Jurists, on the other hand, lay down un- 
 hesitatingly that the notion of force has priority over the notion of order. 
 Tliey say that a true law, the command of an irresistible sovereign, en- 
 
 • By the phrase '* Analytical Jurists," the writer refers chiefly I wwe Nniaest Englist^ writers 
 opon lurisprudence and legislation, Jeremy Bentham and John Austu. 
 
2 OF THE NA TURE 
 
 Thus, when the Supreme Being formed the universe, and 
 created matter out of nothing, he impressed certain principles 
 upon that matter, from which it can never depart, and without 
 which it would cease to be. When he put that matter into 
 
 joins a class of acts or a class of omissions, either on a subject or on a 
 number of subjects, placed by the command alike and indifferently under 
 a legal obligation. * * * Law, when used in such expressions as the 
 Law of Gravity, the Law of Mental Association, or the Law of Rent, is 
 treated by the Analytical Jurists as a word wrested from its true meaning 
 by an inaccurate figurative extension. But I suppose that if dignity and 
 importance can properly be attributed to a word, there are in our day few 
 words more dignified and more important than Law, in the sense of the 
 invariable succession of phenomena, physical, mental, or even politico- 
 economical. With this meaning, ' law ' enters into a great deal of modern 
 thought, and has almost become the condition of its being carried on. 
 
 • « * xhe laws with which the student of Jurisprudence is con- 
 cerned in our own day are undoubtedly either the actual commands of 
 sovereigns, understood as the portion of the community endowed with irre- 
 sistible coercive force, or else they are practices of mankind brought under 
 the formula, ' A law is a command,' by help of the formula, ' whatever the 
 sovereign permits is his command.' » * * But has the force which 
 compels obedience to a law always been of such a nature that it can reason- 
 abl)' be identified with the coercive force of the sovereign, and have laws, 
 always been characterized by that generality which, it is said, alone connects 
 them with physical laws, or general formulas describing the facts of nature ? '' 
 
 • *■ * My conclusion is that " there are two types of organized political 
 society. In the more ancient of these, the great bulk of men derive their rules 
 of life from the customs of their village or city, but they occasionally, though 
 most implicitly, obey the commands of an absolute ruler, who takes taxes 
 from them, but never legislates. In the other, and the one with which we 
 are most familiar, the sovereign is ever more actively legislating on prin- 
 ciples of his own, while local custom and idea are ever hastening to decay. 
 It seems to me that in the passage from one of these pohtical systems to 
 another laws have distinctly altered their character. The Force, for ex- 
 ample, which is at the back of law, can only be called the same by a mere 
 straining of language. .Customary law is not obeyed, as enacted law is 
 obeyed. When it obtains over small areas and in small natural groups, the 
 penal sanctions on which it depends are partly opinion, partly superstition, 
 but to a far greater extent, an instinct almost as blind and unconscious as 
 that which produces some of the movements of our bodies. The actual 
 constraint which is required to secure conformity with usage is inconceivably 
 small. When, however, the rules which have to be obeyed once emanate 
 from an authority external to the small natural group and formino- no part of 
 it, they wear a character wholly unlike that of a customary rule. They lose 
 the assistance of superstition, probably that of opinion, certainly that of 
 spontaneous impulse. The force at the back of law comes therefore to 
 
OF LA WS IN GENERAL. 3 
 
 motion, he established certain laws of motion, to wh.ch all move- 
 able bodies must conform. And, to descend from the greatest 
 operations to the smallest, when a workman forms a clock, or 
 other piece of mechanism, he establishes, at his own pleasure, 
 certain aibitrary laws for its direction, — as that the hand shall 
 describe a given space in a given time, to which law as long as 
 the work^ conforms, so long it continues in perfection, and 
 answers the end of its formation. 
 
 If we farther advance, from mere in^ive matter to vegetable 
 and animal life, we shall find them still governed by laws, more 
 numerous indeed, but equally fixed and invariable. The whole 
 progress of plants, £rom the seed to the root, and from thence to 
 the seed again; the method of animal *nutrition, digestion, [*39 
 secretion, and all other branches of vital economy ; are not left 
 to chance, or the will of the creature itself, but are performed in 
 a wondrous involuntary manner, and guided by unerring rules 
 laid down by the great Creator. 
 
 This, then, is the general signification of law, ajui le of action 
 dictated by some superior being ; and, in those creatures that 
 have neither the power to think, nor to will, such laws must be 
 invariably obeyed, so long as the creature itself subsists, for its 
 existence depends on that obedience. But laws, in their more 
 confined sense, and in which it is our present business to 
 consider them, denote the rules, not of action in general, but of 
 human action or conduct ; that is, the precepts by which man, 
 the noblest of all sublunary beings, a creature endowed with both 
 reason and freewill, is commanded to make use of those faculties 
 in the general regulation of his behaviour. 
 
 Man, considered as a creature, must necessarily be subject to 
 the laws of his Creator, for he is entirely a dependent being. A 
 being independent of any other, has no rule to pursue, but such 
 as he prescribes to himself ; but a state of dependence will in- 
 evitably oblige the inferior to take the will of him on whom he 
 
 be purely coercive force to a degree quite unknown in societies of the more 
 primitive type. * « * The generality of laws and their dependence on 
 the coercive force of a sovereign are the result of the great territorial area 
 of modem States, of the comminution of the sub-groups which compose 
 them, and above all of the example and influence of the Roman Common- 
 wealth, under Assembly, Senate, and Prince." (Sir Henry Sumner Ma'ne, 
 The Early History of Institutions, Lect. xiii.) 
 
4 OF THE NA TURE 
 
 depends as the rule of his conduct ; not, indeed, in every par- 
 ticular, but in all those points wherein his dependence consists. 
 This priaciple, therefore, has more or less extent and effect, in 
 proportion as the superiority of the one and the dependence of 
 the other is greater or less, absolute or limited. And conse- 
 quently, as man depends absolutely upon his Maker for every- 
 thing, it is necessary that he should, in all points, confo rm to_his 
 
 Maker's wil l. ^ 
 
 This will o L-bi^— Maker is raJlgd Jihe (law of nature ] For as 
 God, when he created matter, and endued it with a principle of 
 mobility, established certain rules for the perpetual direction of 
 that motion, so, when he created man, and endued him with 
 •40] freewill to Conduct himself in all parts of *life, he laid 
 _down certain immutable laws of human nature, whereby that 
 freewilU^ in some degree regula ted and restrained , and gave 
 him also the faculty of reason to di scover _the purport of those 
 
 "^ Considering the Creator only as a being of infinite power, he 
 was able unquestionably to have prescribed whatever laws he 
 pleased to his creature, man, however unjust or severe. But, as 
 he is also a being of infinite wisdom, he has laid down only such 
 laws as were founded in those relations of justice that existed in 
 the nature of things antecedent to any positive precept. These 
 are th e eternal immutable laws of good and evil, to which the 
 Creator himself, in all his dispensations, conforms ; and which 
 he has enabled human reason to discover, so far as they are 
 necessary for the conduct of human actions. Such, among 
 others, are these principles : that we should live honestly, should 
 hurt nobody, and should render to every one his due ; to which 
 three general precepts Justinian (d) has reduced the whole doc- 
 trine of law. 
 
 But if the discovery of these first principles of the law of 
 nature depended only upon the. dug_ exertion of right reason, and 
 could not otherwise be obtained than by a chain of metaphysical 
 disquisitions, mankind would have wanted some inducement to 
 have quickened their inquiries, and the greater part of the world 
 would have rested content in mental indolence, and ignorance, its 
 
 (a) Juris pracepta sunt hac, honeste vivere, alterum rum ladsre, suum cuique triiutn.- 
 /nst. I. i. 3. 
 
OF LA WS IN GENERAL. j 
 
 ,• 
 
 inseparable companion. As, therefore, the Creator is a being not 
 only of \nfm\t& p ower, and wisdom, but also of infinite zoodnesj , he 
 has been pleased so to contrive the constitution and frame of 
 humanity, that we should want no other prompter to inquire after 
 and pursue the rule of right, but only our own self-love, that uni^ 
 versal principle of action. For he has so intimately connected, 
 so inseparably interwoven the laws of eternal justice with the 
 happiness of each individual, that the latter cannot be ay:aired 
 but by observing the former ; and, if the former l^e punctually 
 obeyed, it cannot but induce the latter. In consequence of which 
 mutual connection of justice and human felicity, he *has not [*41 
 perplexed the law of nature with a multitude of abstracted 
 rules and precepts, referring merely to the fitness or unfitness of 
 chings, as some have vainly surmised, but has graciously reduced 
 the rule of obedience to this one paternal precept, "that man 
 ■ihould pursue his own true and substantial happiness." This is 
 the foundation of what we call e thics, or natural law ; for the 
 several articles into which it is branched in our systems, amount 
 to no more than demonstrating that this or that action tends to 
 man's real happiness, and therefore very justly concluding that 
 the performance of it is a part of the law of nature ; or, on the 
 other hand, that this or that action is destructive of man's real 
 happiness, and therefore that the law of nature forbids it. 
 . This law of nature, being coeval with mankind, and dictated 
 by God himself, is of course superior in obligation to any other. 
 It is binding over all the globe, in all countries, and at all times : 
 no human laws are of any validity, if contrary to this ;'' and 
 
 2 " Blackstone may here mean that all human laws ought to conform to the 
 Divine laws. If this be his meaning, I assent to it without hesitation. 
 Perhaps, again, he means that human law-givers are themselves obliged by 
 the Divine laws to fashion the laws which they impose by that ultimate 
 standard, because, if they do not, God will punish them. To this, also, I 
 entirely assent. But the meaning of this passage seems rather to be this : 
 that no human law which conflicts with the Divine law is obligatory or bind- 
 ing ; in other words, that no human law which conflicts with the Divine law 
 ts a law; for a law without an obligation is a contradiction in terms. I sup- 
 pose this to be his meaning, because when we say of any transaction that it 
 is invalid, we mean that it is not binding. Now, to say that human laws 
 which conflict with the Divine law are not binding, that is to say, are not 
 laws, is to talk nonsense. The most pernicious laws, and therefore those 
 which are most opposed to the will of God, have been and are continually 
 
6 OF THE NATURE 
 
 such of them as are valid derive all their force, and all theii au- 
 thority, mediately or immediately, from this ori.;inal. 
 
 But, in order to apply this to the particular exigencies (/f each 
 individual, it is still necessary to have recourse to reason, whose 
 office is to discover, as was before observed, what the law of 
 nature directs in every circumstance of life, by considering what 
 method will tend the most effectually to our own substantial hap- 
 piness. And if our reasons were always, as in our first ancestor 
 before his transgression, clear and perfect, unruffled by passions, 
 unclouded by prejudice, unimpaired by disease or intemperance, 
 the task would be pleasant and easy ; we should need no other 
 guide but this. But every man now finds the contrary in his 
 own experience ; that his re ason is corrup t, and his understand- 
 ing full of ignorance and error. 
 
 This has given manifold occasion for the benign interposi- 
 
 enforced as laws by judicial tribunals. The existence of law is one thing ; 
 its merit or demerit another. " (Austin on Jurisprudence : Eng. Ed., p. 220, 
 note.) 
 
 Blackstone's probable meaning in this passage was, that from the stand- 
 point of true morality, and inforo conscientim, a man's duty to God may 
 oblige him to violate a human law, when that is clearly in conflict with a 
 Divine law ; for he says subsequently, in regard to murder, which he declares 
 is " expressly forbidden by the Divine law," that " if any human law should 
 allow or enjoin us to commit it, we are bound to transgress that human law, 
 or else we must offend both the natural and the Divine." He here evidently, 
 uses the word " bound " as denoting obligation arising solely under the 
 Divine law, and places this obligation in direct opposition to that which the 
 human law, considered merely as a positive direction of the law-giving 
 power in human society, would impose. The difficulty in explaining this 
 passage seems to have arisen from not discriminating carefully between the 
 diverse sanctions upon which the idea of obligation is to be based. It is 
 plainly apparent that a human law might be directly in conflict with a uni- 
 versally received principle of moral duty, and there could be no question in 
 such a case that a man would be under a moral obligation to violate the 
 law ; but human tribunals, established to enforce the law, would still hold 
 him under a legal obligation to observe the law, and would punish its infrac- 
 tion. In fact, such tribunals could not do otherwise if they fulfilled their 
 purpose. And as positive laws seldom or never conflict with principles of 
 morals which are of universal acceptance, it would lead to pernicious results 
 if men were not held strictly bound to obey every established law whether 
 they deemed it right or wrong, just or unjust ; for, otherwise, each man's coiv 
 science would be set above positive law ; and men's consciences are veJ v 
 variable, when their interest or personal gratification is concerned. 
 
OF LA WS IN GENERAL. j 
 
 tion of divine Providence, which, in compassion to the frailty, the 
 imperfection, and the blindness of human reason, *hath [*42 
 been pleased, at sundry times and in divers manners, to discover 
 and enforce its laws by an immediate and direct revelation. The 
 doctrines thus delivered we call the revealed or divine law, and 
 they are to be found only in the holy scrip tures^ These pre- 
 cepts, when revealed, are found upon comparison to be really a 
 part of the original law of nature, as they tend in all their conse- 
 quences to man's felicity. But we are not from thence to con- 
 clude that the knowledge of these truths was attainable by 
 reason, in its present corrupted state ; since we find that, until 
 they were revealed, ,they were hid from the wisdom of ages. As 
 then the moral precepts of this law are indeed of the same orig- 
 inal with those of the law of nature, so their intrinsic obligation 
 is of equal strength and perpetuity. Yet undoubtedly the re- 
 vealed law is of infinitely more authenticity than that moral system 
 which is framed by ethical writers, and denominated the natural 
 law ; because one is the law of nature, expressly declared so to be 
 by God himself ; the other is only what, by the assistance of 
 human reason, we imagine to be that law. If w? could be as 
 certain of the latter as we are of the former, both would have an 
 equal authority ; but, till then, they can never be put in any com- 
 petition together. 
 
 Upon these two foundations, the law of nature and the law 
 of revelation, depend all human laws ; that is to say, no human 
 laws should be suffered to contradict these. There are, it is true, 
 a great number of indifferent points in which both the divine law 
 and the natural leave a man at his own liberty, but which are 
 found necessary, for the benefit of society, to be restrained 
 within certain limits. And herein it is that human laws have 
 their greatest force and efficacy ; for, with regard to such points 
 as are not indifferent, human laws are only declaratory of, and 
 act in subordination to, the former. For instance in the case of 
 murder : this is expressly forbidden by the divine, and demon- 
 strably by the natural law ; and, from these prohibitions, arises 
 the true unlawfulness of this crime. Those human laws that 
 annex a punishment to it do not at all increase its moral guilt, 
 or *superadd any fresh obligation, in foro conscientia, to [*43 
 abstain from its perpetration. Nay, if any human law should al- 
 low or enjoin us to commit it, we are bound to transgress that 
 
8 OF THE NATURE 
 
 human law, or else we must offend both the natural and the 
 divine. But, with regard to matters that are in themselves in- 
 different, and are not commanded or forbidden by those superior 
 laws, — such, for instance, as exporting of wool into foreign coun- 
 tries, — here the inferior legislature has scope and opportunity to 
 interpose, and to make that action unlawful which before was not 
 If man were to live in a state of nature, unconnected with 
 other individuals, there would be no occasion for any other laws 
 than the law of nature, and the law of God. Neither could any 
 other law possibly exist: for a law always supposes some 
 superior who is to make it ; and, in a state of nature, we are 
 all equal, without any other superior but Him who is the author 
 of our being. But man was formed for society ; and, as is de- 
 monstrated by the writers on this subject, is neither capable of 
 living alone, nor indeed has the courage to do it. However, as it is 
 impossible for the whole race of mankind to be united in one 
 great society they must necessarily divide into many, and form 
 separate states, commonwealths, and nations entirely indepen- 
 dent of each other, and yet liable to a mutual intercourse. Hence 
 arises a third kind of law to regulate this mutual intercourse, 
 called " the law of nations." which, as none of these states will 
 acknowledge a superiority in the other, cannot be dictated by 
 any, but depends entirely upon the rules of natural law, or upon 
 mutual compacts, treaties, leagues, and agreements between these 
 several communities : in the construction also of which compacts 
 we have no other rule to resort to, but the law of nature ; being 
 the only one to which all the communities are equally subject : and 
 therefore the civil law very justly observes, that quod naturalis 
 ratio inter omnes homines constituit, vacatur jus gentium. 
 *44] *Thus much I thought it necessary to premise concern- 
 ing the law of nature, the revealed law, and the law of na- 
 tions, before I proceeded to treat more fully of the principal sub- 
 ject of this section, municipal or civil law; that is, the rule by 
 which particular districts, communities, or nations are governed ; 
 being thus defined by Justinian "jus civile est quod quisque sibi 
 populus constituit'' I call it municipal law, in compliance with 
 common speech ; for though strictly that expression denotes the 
 particular customs of one single m.unicipium, or free town, yet it 
 may with sufficient propriety be applied to any one state or na- 
 tion which is governed by the same laws and customs. 
 
OF LA WS IN GENERAL. 9 
 
 Municipal law, thus understood, is properly defined to be "a 
 rule of civil conduct prescribed by the supreme power in a state, 
 commanding what is right and prohibiting what is wrong."' Let 
 us endeavor to explain its several properties as they arise out of 
 this definition. And first, it is a , ^^Z?- not a transient sudden 
 order from a superior to or concerning a particular person ; but 
 something jermanent, uniform, a nd universal. Therefore a par- 
 ticular act of the legislature to confiscate the goods of Titius, or 
 to attaint him of high treason, does not enter into the idea of a 
 municipal law : for the operation of this act is spent upon Titius 
 only, and has no relation to the community in general ; it is 
 rather a sentence Aan a law. But an act to declare that the 
 crime of which Titius is accused shall be deemed high treason : 
 this has permanency, uniformity, and universality, and therefore 
 is properly a rule. It is also called a rule to distinguish it from 
 advice or counsel, which we are at liberty to follow or not, as we 
 see proper Sd to judge upon the reasonableness or unreasonable- 
 ness of the thing advised : whereas our obedience to the law de- 
 depends not upon our approbation, but upon the Makers will. 
 Counsel is only a matter of persuasion, law is matter of injunction; 
 counsel acts only upon the willing, law upon the unwilling also. 
 *It is also called a rule, to distinguish it from a compact [*45 
 or agreement for a compact is a promise proceeding/ww us, law is 
 a command directed to us. The language of a compact is, " I 
 
 ' A municipal law is completely expressed by the first branch of the 
 definition : " A rule of civil conduct prescribed by the supreme power in a 
 state." And the latter branch " commanding what is right and prohibiting what 
 is wrong," must either be superfluous, or convey a defective idea of a municipal 
 law ; for if right and wrong are referred to the municipal law itself, then 
 whatever it commands is right, and whatever it prohibits is wrong, and the 
 clause would be insignificant tautolog}-. But if right and wrong are to be 
 referred to the laws of nature, then the definition will become deficient or 
 erroneous ; for though the municipal law may seldom or never command 
 what is wrong, yet in ten thousand instances it forbids what is right. It 
 may forbid an unqualified person to kill game ; it may forbid a man to exer- 
 cise a trade without serving as an apprentice, etc. Now all these acts were 
 perfectly right before the prohibition of the municipal law. (Christian's 
 note, modified.) 
 
 On account of this objection to the definition as given in the text, Judge 
 Sharswood has proposed to modify it so that it shall read thus : Municipal 
 law is a rule of civil conduct prescribed by the supreme power in a state, 
 commanding what is to be done, and forbidding the contrary. 
 
lo OF THE NA TURE 
 
 will, or will not, do this ;" that of a law is, " thou sljalt, or shalt 
 not do it." It is true there is an obligation which a compact car- 
 ries with it, equal in point of conscience to that of a law : but 
 then the original of the obligation is different. In compacts, we 
 ourselves determine and promise what shall be done, before we 
 are obliged to do it ; in laws, we are obliged to act without our- 
 selves determining or promising anything at all. Upon these 
 accounts law is defined to be "« rule" 
 
 Municipal law is also " a rule of civil conduct^ This distinguishes 
 municipal law from the natural, or revealed ; the former of 
 which is the rule of moral conduct, and the latter not only the 
 rule of moral conduct, but also the rule of faith. These 
 regard man as a creature, and point out his duty to God, to 
 himself, and to his neighbor, considered in the light of an indi- 
 vidual. But municipal or civil law regards him also as a citizen, 
 and bound to other duties towards his neighbor than those of 
 mere nature and religion: duties, which he has engaged in by 
 enjoying the benefits of the common union ; and wjiich amount 
 to no more than that he do contribute, on his part, to the subsist- 
 ence and peace of the society. 
 
 It is likewise " a rule prescribed!' Because a bare resolution 
 confined in the breast of the legislator, without manifesting itself 
 by some external sign, can never be properly a law. It is re- 
 quisite that this resolution be notified to the people who are to 
 obey it. But the manner in which this notification is to be made, 
 is matter of very great indifference. It may be notified by 
 universal tradition and long practice, which supposes a previous 
 publication, and is the case of the common law of England. It 
 may be notified, viva voce, by officers appointed for that pur- 
 pose, as is done with regard to proclamations, and such acts of 
 *46] parliament as are appointed * to be publicly read in 
 churches and other assemblies. It may lastly be notified by 
 writing, printing, or the like ; which is the general course taken 
 with all our acts of parliament. Yet, whatever way is made use 
 of, it is incumbent on the promulgators to do it in the most pub- 
 lic and perspicuous manner ; not like Caligula, who (according 
 to Dio Cassius) wrote his laws in a very small character, and 
 hung them upon high pillars, the more effectually to ensnare the 
 people. There is still a more unreasonable method than this, 
 which is called making of laws^r^^osA-^Sacii?- when after an 
 
OF LA WS IN GENERAL, 1 1 
 
 action (indifferent in itself) is committed, the legislator then for 
 the first time declares it to have been a crime, and inflicts a 
 punishment upon the person who has committed it. Here it is 
 impossible that the party could foresee that an action, innocent 
 when it was done, should be afterwards converted to guilt by a 
 subsequent law ; he had therefore no cause to abstain from it ; 
 and all punishment for not abstaining must of consequence be 
 cruel and unjust.^ All laws should be therefore made to com- 
 * The United States Constitution prohibits Congress and the State Legis- 
 latures from 'pz^^mge^ifpost facto laws. (Const., Art. i, §§ 9, 10). A similar 
 provision is also contained in many of the State Constitutions. The 
 phrase " ex post facto " does not apply to retrospective legislation, which 
 is civil in its nature, affecting private rights retroactively, but only to 
 penal and criminal proceedings which impose punishments or forfeitures. 
 Retrospective civil laws may be invalid for other reasons, but they do not 
 come within the scope of this particular Constitutional prohibition. In the 
 leading case of Calder v. Bull, 3 Dallas 386, ex post facto laws were classi- 
 fied as follows : (i) " Every law that makes an action done before the passage 
 of the law, and which was innocent wlien done, criminal, and punishes such 
 action"; (2), '■ Every law that aggravates a crime, or makes it greater than 
 when it was committed " ; (3), "Every law that changes the punishment, and 
 inflicts a greater punishment than the law annexed to the crime when com- 
 mitted " ; (4), " Every law that alters the legal rules of evidence, and receives 
 less or different testimony than the law required at the time of the com- 
 mission of the offence in order to convict the offender." But a law which 
 mitigates the severity of criminal procedure, as by reducing or diminishing 
 the punishment with which an act was punishable when committed, without 
 changing the kind of punishment, is not ex post facto. Thus a law 
 changing the penalty for a certain offence from imprisonment for thirty days 
 to imprisonment for twenty days would be valid as to past offences ; but a 
 law changing the penalty from death to imprisonment for life would be 
 ex post facto and void, because there is a change in the kind of punishment. 
 If this were not the rule, it would be " left to the discretion of the legislature 
 and of judges to say whether the new punishment is or is not more merciful 
 or lenient than the old, and such a construction of the Constitutional prohibi 
 tion would impair its value and certainty of protection " {Shepherd v. People 
 25 N. Y. 406). In Hartung v. People, 22 N. Y. 95, it was held that when a 
 statute, which prescribed the death penalty for the crime of murder, and 
 required that not less than four, nor more than eight weeks, should intervena 
 between the sentence and the execution, was repealed by a statute whicli 
 prescribed one year's imprisonment in a state prison at hard labor pre- 
 viously to the execution of the death penalty and also provided that tha 
 prisoner should not be executed at the end of the year until the Governor 
 had issued a warrant to the sheriff directing it, — the latter statute was void 
 as to offences of this kind, committed while the former statute was in force, 
 (See further, Kring v. Missouri, 107 U. S. 221 ; Hopt v. Utah, i lo U. S. 574 ; 
 Cununings v. Missouri, 4 Wallace, 277 ; Moore v. State, 43 N. J. L. 203.) 
 
12 OF THE NATURE 
 
 mence in future, and be notified before their commencement :' 
 which is implied in the term "prescribed:'^ But when this 
 rule is in the usual manner notified, or prescribed, it is then 
 the subject's business to be thoroughly acquainted therewith ; 
 for if ignorance, of what he might know, were admitted as a legit- 
 imate excuse, the laws would be of no effect, but might always 
 _be eluded with impunity. 
 
 But farther : municipal law is " a rule of civil conduct pre- 
 srrihed ^v the supr rv'" f"'"'f^ ^ n a state! ' Fo r_ legislature , as was 
 before observed, is the greatest act of superiority that can be ex- 
 ercised by one being over another. Wherefore it is requisite to 
 the very essence of a law, that it be made by the supreme power. 
 Sovereignty and legislature are indeed convertible terms : one 
 cannot subsist without the other. 
 
 . 6 It is a general rule in the interpretation of statutes that they should not be 
 allowed a retrospective operation, when this is not required by express com- 
 mand or by necessary and unavoidable implication. Without such command 
 or implication, they speak and operate upon the future only. {Chew Heong v. 
 United States, 112 U. S. 536; Dash v. Van Kleeck, 7 John R., 477.) The 
 legislature is competent to give a statute a retrospective effect, except as 
 prohibited by the constitution from passing ex post facto laws, or laws im- 
 pairing the obligation of contracts ; or unless vested rights of property would 
 be affected. Some laws are necessarily retrospective, such as laws for con- 
 firming official acts, amending charters, correcting assessment rolls, relating 
 to remedies, etc. {People v. Supervisors, 43 N. Y. 130; Lane v. Nelson, 79 
 Pa. St. 407; Sturges v. Carter, 114 U. S. 511 ; People v. Spicer, 99 N. Y. 
 225 ; Forster v. Forster, 129 Mass. 559.) " Remedial statutes may be of a 
 retrospective nature, provided they do not impair contracts, or disturb absolute 
 vested rights, and only go to confirm rights already existing, and in furtherance 
 of the remedy, by curing defects, and adding to the means of enforcing existing 
 obhgations." (Kent's Comm. i. 455.) But in some states, retrospective laws 
 are prohibited by constitutional provisions. (Kent's Comm. i. 455 note.) 
 
 * It was formerly the rule in England that acts of Parliament took effect by 
 relation from the first day of the session in which the statute was enacted, 
 unless the act itself provided otherwise. The entire session was deemed, 
 by a fiction of law, to be only a single day. This rule operated at times very 
 unjustly, since a man might be held liable for the violation of a statute which 
 had not been enacted at the time when he did the act complained of. It was 
 therefore repealed by the act 33 Geo. III., ch. 13, which provided that statutes 
 should have effect only from the time of receiving the royal assent. In New 
 York it is provided that every law, unless a diiferent time be prescribed 
 therein, shall take effect on and not before the 20th day after the day of its 
 final passage. (Rev. St. i. 157.) Similar statutes have been passed in some 
 of the other states, though the period of time prescribed varies considerably. 
 Acts of Congress, approved by the President, take effect from the time of such 
 approval. {Burgess v. Salmon, 97 U. S. 38.) 
 
OF LA WS IN GENERAL. 13 
 
 • This will naturally lead us into a short inquiry concern-* [47 
 ing the nature of society and civil government ; and the natural, 
 inherent right that belongs to the sovereignty of a state, where- 
 ever that sovereignty be lodged, of making and enforcing laws. 
 
 /^The only true and natural foundations of society are the wants 
 and the fears of individuals. Not that we can believe, with some 
 theoretical writers, that there ever was a time when there was no 
 such thing as society either natural or civil ; and that from the 
 impulse of reason, and through a sense of their wants and weak- 
 nesses, individuals met together in a large plain, entered into an 
 original contract, and chose the tallest man present to be their 
 governor. This nojion, of an actually existing unconnected 
 state of nature, is too wild to be seriously admitted : and besides 
 it is plainly contradictory to the revealed accounts of the primi- 
 
 • tive origin of mankind, and their preservation two thousand 
 years afterwards ; both which were effected by the means of 
 single families. These formed the first natural society, among 
 themselves ; which, every day extending its limits, laid the first 
 though imperfect rudiments of civil or political society: and 
 when it grew too large to subsist with convenience in that pas- 
 toral state, wherein the patriarchs appear to have lived, it neces- 
 sarily subdivided itself by various migrations into more. After- 
 wards, as agriculture increased, which employs and can main- 
 tain a much greater number of hands, migrations became less 
 frequent: and various tribes, which had formerly separated, re- 
 united again ; sometimes by compulsion and conquest, some- 
 times by accident, and sometimes perhaps by compact. But 
 though society had not its formal beginning from any conven- 
 tion of individuals, actuated by their wants and their fears ; yet 
 it is the sense of their weakness and imperfection that keeps man- 
 kind together ; that demonstrates the necessity of this union ; 
 and that therefore is the solid and natural foundation, as well 
 as the cement of civil society. And this is what we mean by 
 the original contract of society ; which, though perhaps in no 
 instance it has ever been formally expressed at the first institution 
 of a state, yet in nature and reason must always be understood and 
 implied, * in the very act of associating together : namely, [*48 
 that the whole should protect all its parts, and that every part 
 should pay obedience to the will of the whole, or, in other words, 
 tliat the community should guard the rights of each individual 
 
14 OF THE NATURE 
 
 member, and that (in return for this protection) each individual 
 should submit to the laws of the community ; without which sub- 
 mission of all it was impossible that protection should be certainly 
 extended to any. 
 
 For when civil society is once formed, government at the 
 same time results of course, as necessary to preserve and to 
 keep that society in order. Unless some superior be constituted 
 whose commands and decisions all the members are bound to 
 obey, they would still remain as in a state of nature, without any 
 judge upon earth to define their several rights, and redress their 
 several wrongs. But, as all the members which compose this 
 society were naturally equal, it may be asked, in whose hands are 
 the reins of government to be entrusted ? To this the general 
 answer is easy ; but the application of it to particular cases has 
 occasioned one half of those mischiefs, which are apt to proceed* 
 from misguided political zeal. In general, all mankind .will agree 
 that government should be reposed in such persons, in whom 
 those qualities are most likely to be found, the perfection of which 
 is among the attributes of him who is emphatically styled the Su- 
 preme Being ; the three grand requisites, I mean of wisdom, of 
 goodness, and of power : wisdom, to discern the real interest of 
 the community ; goodness, to endeavour always to pursue that 
 real interest ; and strength, or power, to carry this knowledge 
 and intention into action. These are the natural foundations of 
 sovereignty, and these are the requisites that ought to be found 
 in every well constituted frame of government.^ 
 
 How the several forms of government we now see in the 
 world at first actually began, is matter of great uncertainty, and 
 has occasioned infinite disputes. It is not my business or in- 
 tention to enter into any of them. However they began, or 
 *49] by * what right soever they subsist, there is and must be 
 in all of them a supreme, irresistible, absolute, uncontrolled au- 
 thority, in which th.e jura summi imperii, or the rights of sover- 
 eignty, reside. And this authority is placed in those hands, 
 wherein (according to the opinion of the founders of such re- 
 spective states, either expressly given, or collected from their 
 tacit approbation) the qualities requisite for supremacy, wisdom, 
 goodness, and power, are the most likely to be found. 
 
 The political writers of antiquity will not allow more than 
 three regular forms of government ; the first, when the sover- 
 
OF LA WS IN GENERAL. 15 
 
 eign power is lodged in an aggregate assembly consisting of all 
 the free members of a community, which is called a democracy ; 
 the second, when it is lodged in a council, composed of select 
 members, and then it is styled an aristocracy ; the last, when it 
 is .entrusted in the hands of a single person, and then it takes 
 the name of a monarchy. All other species of government, they 
 say, are either corruptions of, or reducible to, these three. 
 
 By the sovereign power, as was before observed, is meant the 
 making of laws ; for wherever that power resides, all others must 
 conform to and be directed by it, whatever appearance the out- 
 ward form and administration of the government may put on. 
 For it is at any time in the option of the legislature to alter that 
 form and administration by a new edict or rule, and to put the 
 execution of the laws into whatever hands it pleases ; by con- 
 stituting one, or a few, or many executive magistrates : and all 
 the other powers of the state must obey the legislative power in 
 the discharge of their several functions, or else the constitution 
 is at an end.' / - ^ 
 
 There is a fundamental difference between the power and authority of 
 the legislative branch of the Government in England and in the United 
 States. The English Parliament is not limited, as regards the scope and 
 extent and subject-matter of legislation, by a written constitution defining 
 and restricting its powers, and its enactments therefore constitute the supreme 
 law of the land and are absolutely binding upon the courts, which have no 
 option but to appropriately enforce them. It is for this reason that Par- 
 liament is sometimes said to be " omnipotent." What is spoken of as the 
 " English Constitution " embraces the body or system of laws, rules, prin- 
 ciples and established usages, upon which is based the organization of the Gov- 
 ernment, the relation of its various departments or branches to each other, and 
 the nature of their functions, and in accordance with which the administration 
 of the Government is regularly conducted. But this Constitution, based as 
 it is upon previous acts of Rarliament, upon custo m and tra ditio n, is subject 
 to change and modification by other acts of Parliament, though it is undoubt- 
 edly true, that it has, by force of precedent, and by the natural effect of ordi- 
 nary usage upon the habits and ideas of the people, great controlling and 
 restrictive power upon the course of legislation. But in the United States, 
 legislation is uniformly controlled by written constitutions adopted by the 
 people in their sovereign capacity. The United States Constitution limits 
 and defines the powers of Congress, and is also binding upon the legislatures 
 of the several States, so that their enactments cannot violate its provisions. 
 The legislation of the States is also further controlled by the special consti- 
 tution which each has adopted. To the courts is co-nmitted the power and 
 duty of determining whether particular enactments are in conformity with 
 
i6 OF THE NA TURE 
 
 In a democracy, where the right of making laws resides in 
 the people at large, public virtue, or goodness of intention, is 
 more likely to be found, than either of the other qualities of 
 government. Popular assemblies are frequently foolish in their 
 contrivance, and weak in their execution ; but generally mean 
 to do the thing that is right and just, and have always a degree 
 *50] of patriotism or public spirit. In * aristocracies there is 
 more ,wisdom to be found, than in the other frames of govern- 
 ment ; being composed, or intended to be composed, of the most 
 experienced citizens . but there is less honesty than in a repub- 
 lic, and less strengtji than in a monarchy. A monarchy is indeed 
 the most powerful of any ; for, by the entire conjunction of the 
 legislative and executive powers, all the sinews of government 
 are knitted together, and united in the hand of the prince : but 
 then there is imminent danger of his employing that strength to 
 improvident or oppressive purposes. 
 
 Thus these three species of government have, all of them, 
 their several perfections and imperfections. Democracies are 
 usually the best calculated to direct the end of a law ; aristocra- 
 cies to invent the means by which that end shall be obtained ; 
 and monarchies to carry those means into execution. And the 
 ancients, as was observed, had in general no idea of any other 
 permanent form of government but these three : for though 
 Cicero declares himself of opinion, " esse optime constitutam 
 rempublicain qucz ex tribus generibus Hits, regali, Optimo, et popu- 
 lari, sit modice confusa ;'^ yet Tacitus treats this notion of a 
 mixed government, formed out of them all, and partaking of the 
 advantages of each, as a visionary whim, and one that, if effected, 
 could never be lasting or secure. 
 
 But, happily for us of this island, the British constitution has 
 long remained, and I trust will long continue, a standing excep- 
 tion to the truth of this observation. For, as with us the execu- 
 
 Constitutional provisions ; and if it is adjudged that they are not, such laws 
 ;ire pronounced null and void, either in vifhole or in part. {Civil Rights Cases, 
 109 U. S. 3 ; Baldwin v. Franks, 120 U. S. 678 ; Duryee v. Mayor of N. V., 
 96 N. Y. 477.) This is not, however, done by the courts of their own motion, 
 but only in the course of decision of actually litigated causes in which the 
 c:onstitutionality of the statute is essentially involved. But all statutes not in 
 conflict with the provisions of the Constitution of the State or of the United 
 States are as supreme and absolute, within their appropriate sphere, as the 
 acts of the English Parliament. 
 
OF LA WS IN GENERAL 17 
 
 tive power of the laws is lodged in a single person, they have all 
 the advantages of strength and dispatch, that are to be found in 
 the most absolute monarchy: and as the legislature of the 
 kingdom is entrusted to three distinct powers, entirely independ- 
 ent of each other ; first, the king ; secondly, the lords spiritual 
 and temporal, which is an aristocratical assembly of persons 
 selected for their piety, *their birth, their wisdom, their [*51 
 valor, or their property ; and, thirdly, the House of Commons, 
 freely chosen by the people from among themselves, which makes 
 it a kind of democracy : as this aggregate body, actuated by 
 different springs, and attentive to different interests, composes 
 the British parliament, and has the supreme disposal of every 
 thing ; there can no inconvenience be attempted by either of the 
 three branches, but will be withstood by one of the other two ; 
 each branch being armed with a negative power, sufficient to 
 repel any innovation which it shall think inexpedient or dan- 
 gerous. 
 
 Here then is lodged the sovereignty of the British constitu- 
 tion ; and lodged as beneficially as is possible for society. For 
 in no other shape could we be so certain of finding the three 
 great qualities of government so well and so happily united. If 
 the supreme power were lodged in any one of the three branches 
 separately, we must be exposed to the inconveniences of either 
 absolute monarchy, aristocracy, or democracy ; and so want two 
 of the three principal ingredients of good polity, either virtue, 
 wisdom, or power. If it were lodged in any two of the branches ; 
 for instance, in the king and House of Lords, our laws might be 
 providently made, and well executed, but they might not always 
 have the good of the people in view : if lodged in the king and 
 commons, we should want that circumspection and mediatory 
 caution, which the wisdom of the peers is to afford ; if the su- 
 preme rights of legislature were lodged in the two bouses only, 
 and the king had no negative upon their proceedings, they might 
 be tempted to encroach upon the royal prerogative, or perhaps 
 to abolish the kingly office, and thereby weaken (if not totally 
 destroy) the strength of the executive power. But the consti- 
 tutional government of this island is so admirably tempered and 
 compounded, that nothing can endanger or hurt it, but destroy- 
 ing the equilibrium of power between one branch of the legisla- 
 ture and the rest. For if ever it should happen that the 
 
1 8 OF THE NATURE 
 
 independence of any one of the three should be lost, or that it 
 should become subservient to the views of either of the other 
 *52] two, there would *soon be an end of our constitution. 
 The legislature would be changed from that which (upon 
 the supposition of an original contract, either actual or implied) 
 is presumed to have been originally set up by the general con- 
 sent and fundamental act of the society ; and such a change, 
 however effected, is, according to Mr. Locke (who perhaps 
 carries his theory too far), at once an entire dissolution of the 
 bands of government ; and the people are thereby reduced to a 
 state of anarchy, with liberty to constitute to themselves a new 
 legislative power. 
 
 Having thus cursorily considered the three usual species of 
 government, and our own singular constitution, selected and 
 compounded from them all, I proceed to observe, that, as the 
 power of making laws constitutes the supreme authority, so 
 wherever the supreme authority in any state resides, it is the 
 right of that authority to make laws ; that is, in the words of our 
 definition, to prescribe the rule of civil action. And this may be 
 discovered from the very end and institution of civil states. For 
 a state is a collective body, composed of a multitude of indi- 
 viduals, united for their safety and convenience, and intending 
 to act together as one man. If it therefore is to act as one 
 man, it ought to act by one uniform will. But, inasmuch as 
 political communities are made up of many natural persons, each 
 of whom has his particular will and inclination, these several 
 wills cannot by any natural \xman be joined together, or tempered 
 and disposed into a lasting harmony, so as to constitute and 
 produce that one uniform will of the whole. It can therefore be 
 no otherwise produced than by z. political union ; by the consent 
 
 8 If it be true that there would be an end of the Constitution if at anytime 
 one of the three should become subordinate to the views of the other branches, 
 then, assuredly, the Constitution is at an end : for it would be difficult to con. 
 tend that in the times of Henry VIII. and Elizabeth, the two Houses of 
 Parliament were not subservient to the Crown, or that before the reform act 
 the House of Lords had not the ascendency, or that, since that act, the House 
 of Commons have not had it. Indeed, it does not seem easy to name any 
 eventful period of our Constitutional history when the exact equilibrium of 
 powers, referred to by Blackstone, existed. That this supposed theory of 
 our Constitution is now denied by political writers of different parties is at 
 any rate indisputable. — Stewart. 
 
OF LA WS IN GENERAL . 19 
 
 of all persons to submit their own private wills to the will of one 
 man, or of one or more assemblies of men, to whom the supreme 
 authority is entrusted ; and this will of that one man, or assem- 
 blage of men, is in different states, according to their different 
 constitutions, understood to be law. 
 
 Thus far as to the right of the supreme power to make laws ; 
 but farther, it is its duty likewise. For since the *respective [*53 
 members are bound to conform themselves to the will of the 
 state, it is expedient that they receive directions from the state 
 declaratory of that its will. But, as it- is impossible, in so great 
 a multitude, to give injunctions to every particular man, relative 
 to each particular action, it is therefore incumbent on the state 
 to establish general rules, for the perpetual information and 
 direction of all persons in all points, whether of positive or 
 negative duty. And this, in order that every man may know 
 what to look upon as his own, what as another's ; what absolute 
 and what relative duties are required at his hands ; what is to 
 be esteemed honest, dishonest, or indifferent ; what degree 
 every man retains of his natural liberty ; what he has given up 
 as the price of the benefits of society; and after what manner 
 each person is to moderate the use and exercise of those rights 
 which the state assigns him, in order to promote and secure the 
 public tranquillity. 
 
 From what has been advanced, the truth, of the former 
 _branch of our definition is, I trust, sufficiently evident ; that 
 " municipal law is a rule of civil conduct prescribed by the supremT 
 power in a state!' I proceed now to the latter branch of it ; that 
 Tris a rule so prescribed, " commaa dinz wh atis rizht and pro- 
 hibitin^ what is wronz " 
 
 Now, in order to do this completely, it is first of all necessary 
 that the boundaries of right and wrong be established and ascer- 
 tained by law. And when this is once done, it will follow of 
 course that it is likewise the business of the law, considered as 
 a rule of civil conduct, to enforce these rights, and to restrain 
 or i^dress these wrongs. It remains therefore only to consider 
 in what manner the law is said to ascertain the boundaries of 
 right and wrong ; and the methods which it takes to command 
 the one and prohibit the other. 
 
 For ^his purpose every law may be said to consist of several 
 parts : one, declaratory wjjereby the rights to be observed, and 
 
20 OF THE NATURE 
 
 *54] the wrongs to be eschewed, are clearly defined and *laiJ 
 down : anothe r, directory ; whereby the subject is instructed and 
 enjoined to observe those rights, and to abstain from the om- 
 mission of those wrongs : a third, ^remedial ; whereby a method 
 is pointed out to recover a man's private rights, or redress his 
 private wrongs : to which may be added a fourth, usually termed 
 the sanction, or vindicatory branch of the law ; whereby it is 
 signified what evil or penalty shall be incurred by such as com- 
 mit any public wrongs, and transgress or neglect their duty. 
 
 With regard to the first of these, the declaratory part of the 
 municipal law, this depends not so much upon the law of reve- 
 lation or of nature, as upon the wisdom and will of the legislator. 
 This doctrine, which before was slightly touched, deserves a 
 more particular explication. Those rights then which God and 
 nature have established, and are therefore called natural rights, 
 such as are life and liberty, need not the aid of human laws to 
 be more effectually invested in every man than they are ; neither 
 do they receive any additional strength when declared by the 
 municipal laws to be inviolable. On the contrary, no human 
 legislature has power to abridge or destroy them, unless the 
 owner shall himself commit some act that amounts to a forfeit- 
 ure. Neither do divine or natural duties (such as, for instance, 
 the worship of God, the maintenance of children, and the like) 
 receive any stronger sanction from being also declared to be 
 duties by the law of the land. The case is the same as to crimes 
 and misdemeanors, that are forbidden by the superior laws, and 
 therefore styled mala in se, such as murder, theft, and perjury; 
 which contract no additional turpitude from being declared un- 
 lawful by the inferior legislature. For that legislature in all 
 these cases acts only, as was before observed, in subordination 
 to the great lawgiver, transcribing and publishing his precepts. 
 So that, upon the whole, the declaratory part of the municipal 
 law has no force or operation at all, with regard to actions that 
 are naturally and intrinsically right or wrong. 
 *55] *But, with regard to things in themselves indifferent the 
 case is entirely altered. These become either right or wrong, 
 just or unjust, duties or misdemeanors, according as the muni 
 cipal legislator sees proper, for promoting the welfare of the 
 society, and more effectually carrying on the purposes of civil 
 life. Thus our own common law has declared, that the goods q\ 
 
OF LA WS IN GENERAL. 21 
 
 th£ _wife do in sJantbL-npXiii- marria ge become the propeity and 
 right of the husband:' and our statute law has declared all. 
 m onopolies a public n ft^nrp ; yet that right, and this offence, 
 have no foundation in nature, but are merely created by the law, 
 for the purposes of civil society. And sometimes, where the 
 thing itself has its rise from the law of nature, the particular 
 circumstances and mode of doing it become right or wrong, as 
 the laws of the land shall direct. Thus, for instance, in civil 
 duties ; obedience to superiors is the doctrine of revealed as well 
 as natural religion : but who those superiors shall be, and in 
 what circumstances, or to what degree they shall be obeyed, it 
 is the province of human laws to determine. And so, as to 
 injuries or crimes, it must be left to our own legislature to decide, 
 in what cases the seizing another's cattle shall amount to a tres- 
 pass or a theft; and where it shall be a justifiable action, as when 
 a landlord takes them by way of distress for rent. 
 
 Thus much for the declaratory part of the municipal law : 
 and the directory stands much upon the same footing ; for this 
 virtually includes the former, the declaration being usually col- 
 lected from the direction. The law that says, " thou shalt not 
 steal," implies a declaration that stealing is a crime. And we 
 have seen (b) that, in things naturally indifferent, the very 
 essence of right and wrong depends upon the direction of the 
 laws to do or to omit them. 
 
 The remedial part of a law is so necessary a conse- 
 quence of the former two, that laws must be very vague and 
 imperfect *without it. For in vain would rights be de- [*56 
 clared, in vain directed to be observed, if there were no method 
 of recovering and asserting those rights, when wrongfully with- 
 held or invaded. This is what we mean properly, when we 
 speak of the protection of the law. When, for instance, the 
 declaratory part of the law has said, " that the field or inherit- 
 ance, which belonged to Titius's father, is vested by his death 
 {b) See page 43, (side paging). 
 
 9 This rule of the common law has been changed in a number of the United 
 States by statutes, providing that married women shall have separate 
 control, management, and disposition, to a greater or less extent, of property, 
 whether real or personal, owned by them at the time of marriage, or acquired 
 subsequently by gift, grant, devise, bequest, descent, or otherwise. A similai 
 statute has been recently pa.ssed in Euffland- U% & 46 Vict. ch. 75, 1882.) 
 
22 OF THE ITATURB. 
 
 in Titius;" and \ht. directory part has "forbidden any one lo 
 enter on another's property, without the leave of the owner :" if 
 Gains after this will presume to take possession of the land, 
 the remedial part of the law will then interpose its ofifice ; will 
 make Gaius restore the possession to Titius, and also pay him 
 damages for the invasion. 
 
 With regard to the sanction of laws, or the evil that may at 
 tend the breach of public duties, it is observed, that human 
 legislators have for the most part chosen to make the sanction of 
 their laws rather vindicatory than retnuneratory, or to consist rather 
 in punishments, than in actual particular rewards. Because, in 
 the first place, the quiet enjoyment and protection of all our 
 civil rights and liberties, which are the sure and general conse- 
 quence of obedience to the municipal law, are in themselves the 
 best and most valuable of all rewards. Because also, were the 
 exercise of every virtue to be enforced by the proposal of 
 particular rewards, it were impossible for any state to furnish 
 stock enough for so profuse a bounty. And farther, because 
 the dread of evil is a much more forcible principle of human 
 actions than the prospect of good. For which reasons, though 
 a prudent bestowing of rewards is sometimes of exquisite use, 
 yet we find that those civil laws, which enforce and enjoin our 
 duty, do seldom, if ever, propose any privilege or gift to such as 
 obey the law ; but do constantly come armed with a penalty 
 denounced against transgressors, either expressly defining the 
 nature and quantity of the punishment, or else leaving it to the 
 discretion of the judges, and those who are entrusted with the 
 care of putting the laws in execution. 
 
 *57] *0f all the parts of a law the most effectual is the vindica^ 
 tory. For it is but lost labor to say, " do this, or avoid that," 
 unless we also declare, " this shall be the consequence of youi 
 non-compliance." We must therefore observe that the main 
 strength and force of a law consists in the penalty annexed to 
 it. Herein is to be found the principal obligation of human 
 laws. 
 
 Legislators and their laws are said to compel and oblige : not 
 that by any natural violence they so constrain a man, as to 
 render it impossible for him to act otherwise than as they direct, 
 which is the strict sense of obligation ; but because, by declar 
 ing and exhibiting a penalty against offenders, they bring it to 
 
OF LAWS IN GENERAL. 23 
 
 pass that no man can easily choose to transgress the law ; since, 
 by reason of the impending correction, compliance is in a high 
 degree preferable to disobedience. And, even where rewards 
 are proposed as well as punishments threatened, the obligation 
 of the law seems chiefly to consist in the penalty ; for rewards, 
 in their nature, can ovA.y persuade dcoA allure; nothing is compulsory 
 but punishment. 
 
 It is true, it hath been holden, and very justly, by the 
 principal of our ethical writers, that human laws are binding 
 upon men's consciences. But if that were the only or most 
 forcible obligation, the good only would regard the laws, and 
 the bad would set them at defiance. And, true as this principle 
 is, it must still be understood with some restriction. It holds, 
 I apprehend, as to rights ; and that, when the law has deter- 
 mined the field to belong to Titius, it is matter of conscience no 
 longer to withhold or to invade it. So also in regard to natural 
 duties., and such offences as are mala in se: here we are bound in 
 conscience ; because we are bound by superior laws, before those 
 human laws were in being, to perform the one and abstain from 
 the other. But in relation to those laws which enjoin only 
 positive duties, and forbid only such things as are not mala in j^, but 
 mala prohibita merely, without any intermixture of moral guilt, 
 *58] *annexing a penalty to non-compliance, here I appre- 
 hend conscience is no farther concerned, than by directing a 
 submission to the penalty, in case of our breach of those laws : 
 for otherwise the multitude of penal laws in a state would not 
 only be looked upon as an impolitic, but would also be a very 
 wicked thing ; if every such law were a snare for the conscience 
 of the subject. But in these cases the alternative is offered to 
 every man ; " either abstain from this, or submit to such a 
 penalty : " and his conscience will be clear, whichever side of 
 the alternative he thinks proper to embrace. Thus, by the 
 statutes for preserving game, a penalty is denounced against 
 every unqualified person that kills a hare, and against every 
 person who possesses a partridge in August. And so too, by 
 other statutes, pecuniary penalties are inflicted for exercising 
 trades without serving an apprenticeship thereto,'" for not 
 
 wThis statute, and that f^r not burying in woolen, were reDealed in 
 1814. 
 
24 OF THE NA TURE 
 
 burying the dead in woolen, for not performing the statute 
 work on the public roads, and for innumerable other positive 
 misdemeanors. Now these prohibitory laws do not make the 
 transgression a moral offence, or sin : the only obligation in 
 conscience is to submit to the penalty, if levied." It must 
 however be observed, that we are here speaking of laws that 
 are simply and purely penal, where the thing forbidden or en- 
 joined is wholly a matter of indifference, and where the penalty 
 inflicted is an adequate compensation for the civil inconvenience 
 supposed to arise from the offence. But where disobedience to 
 the law involves in it also any degree of public mischief or 
 private injury, there it falls within our former distinction, and is 
 also an offence against conscience. 
 
 I have now gone through the definition laid down of a muni- 
 cipal law ; and have shown that it is " a rule of civil conduct 
 prescribed by the supreme power in a state, commanding what 
 is right, and prohibiting what is wrong ; " in the explication of 
 -which I have endeavored to interweave a few useful principles 
 concerning the nature of civil government, and the obligation 
 
 " It can hardly be said with strict truth that, because the act prohibited is 
 itself indifferent on moral grounds, the conscience is not concerned in avoid- 
 ing or refraining from its perpetration, for the violation of such a prohibition 
 might have, in its ulterior consequences, an injurious effect upon public and 
 social welfare, in influencing others to disregard laws forbidding acts which 
 are morally objectionable, and intrinsically pernicious in their tendency; 
 for when the spectacle is presented of a voluntary violation of established 
 laws by good men, this/aci will be chiefly influential with the evil-disposed, 
 and they will consider little the nature of the law infringed. Another effect 
 would be to lead men to rely upon their own independent opinions as to 
 whether an act prohibited were indifferent or not, and thus the exercise ol 
 indiWdual discretion as to when a law should be obeyed, and when not, would 
 weaken the obligatory force of law throughout society, and the sense of legal 
 responsibility. Hence this passage of Blackstone has been often criticised. 
 It seems therefore a reasonable and salutary rule that, where a law is not 
 clearly and positively in conflict with moral duty, so that such conflict would 
 be generally recognized, it is as a matter of conscientious duty to yield 
 obedience to such law when duly established. It is, of course, true that tht 
 tribunals by which the law is interpreted and enforced, must impose the 
 prescribed penalty for a violation of law, without regard to the conscientious 
 scruples of those adjudged responsible. And it is a general principle that 
 when a statute imposes a penalty for the commission of an act, the act is 
 impliedly prohibited, though there be no specific words of prohibition in the 
 statute. (See ante, note 2.) 
 
OF LA WS IN GENERAL. 2^ 
 
 oi Luman laws. Before I conclude this section, it may not be amiss 
 to add a few observations concerning the interpretation of laws. 
 
 When any doubt arose upon the construction of the Roman 
 laws, the usage was to state the case to the emperor in writing, 
 and take his opinion upon it. This was certainly a bad method 
 of interpretation. To interrogate the legislature to decide par- 
 ticular disputes is not only endless, but affords great room for 
 partiality and oj)pression. The answers of the emperor were 
 called his rescripts, and these had in succeeding cases the force 
 of perpetual laws ; though they ought to be carefully distin- 
 guished by every rational civilian from those general constitutions 
 which had only the nature of things for their guide. The em- 
 peror Macrinus, as his historian Capitolinus informs us, had 
 once resolved to *abolish these rescripts, and retain only [*59 
 the general edicts : he could not bear that the hasty and crude 
 answers of such princes as Commodus and Caracalla should be 
 reverenced as laws. But Justinian thought otherwise, and he 
 has preserved them all. In like manner the canon laws, or 
 decretal epistles of the popes, are all of them rescripts in the 
 strictest sense. Contrary to all true forms of reasoning, they 
 argue from particulars to generals. 
 
 The fairest and most rational method to interpret the will of 
 the legislator 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 : — -- 
 
 I. Words are generally to be understood in their usual and 
 most known signification ; not so much regarding the propriety 
 of grammar, as their general and popular use. Thus the law 
 mentioned by Puffendorf which forbad 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 of 
 the words " heirs of her body ^' which, in a legal sense, comprise 
 only certain of her lineal descendants. 
 
26 OF THE NATURE 
 
 *60] *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 compare a word, or a sentence, whenever they are am- 
 biguous, 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 the subject, or that expressly relate to the same 
 point.12 Thus, when the law of England declares murder to 
 be felony without benefit of clergy, we must resort to the same 
 law of England to learn what the benefit of clergy is : i^ and, 
 when the common law censures simoniacal 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 under- 
 stood as having a regard thereto, for that is always supposed to 
 be in the eye of the legislator, and all his expressions directed 
 to that end. Thus, when a law of our Edward III. forbids all 
 ecclesiastical persons 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 bene- 
 fices by the Pope were called provisions, we shall see that the 
 restraint is intended to be laid upon such provisions only. 
 
 4. As to the effects and consequences, the rule is, that where 
 
 ^ It is a general rule of construction that statutes in pari materia (i. e 
 upon the same subject) are to be construed with reference to each other, 
 so that if there be any ambiguity or uncertainty in one, this may be resolved 
 by comparison with the other. {Smith v. People, 47 N. Y. 330 ; [/. S. v. 
 Freeman, 3 How. U. S. 556.) So title, preamble, contemporaneous construc- 
 tion, etc., may be considered. (JVazoo, 6-»c. R. Co. v. Thomas, 132 U. S. 
 174; U.S. V. Philbrick, 120 U. S. 52.) 
 
 12 Benefit of clergy, in the ancient criminal law of England, was the privilege 
 granted to the clergy, of exemption from the process of the secular courts when 
 charged with felonious crimes, and operated to render them amenable in such 
 cases only to the church authorities, and thus to relieve them from capital pun- 
 ishment. This exemption was also extended to the officers and clerks of the 
 church and to all persons who could read, since in those times of ignorance those 
 who could read were mainly in the service of the church. When learning 
 became more general, laymen who could read were allowed the privilege 
 only once, and were then branded in the left thumb ; whipping, fine and im- 
 prisonment, were afterwards substituted for branding. Benefit of clergy 
 was abolished by statute in 1828. (See post, pp. 1030-1034.) 
 
OF LA WS IN GENERAL. 27 
 
 words bear either none, or a very absurd signification, if literally 
 understood, we must a little deviate from the received sense of 
 them. Therefore the Bolognian law, mentioned by Puffendorf, 
 which enacted " that whoever drew blood in the streets should 
 be punished with the utmost severity," was held after long 
 debate not to extend to the surgeon, who opened the vein of a 
 person that fell down in the street with a fit. 
 
 *5. But, lastly, the most universal and effectual way [*61 
 of discovering the true meaning of a law, when the words are 
 dubious, is by considering the -4!ea££n and -^mV of it ; or the 
 cau se which moved the legislat i^e„t " priart '^ For when this 
 reason ceases, the kw itself ought likewise to cease with it. 
 An instance of this is given in a case put by Cicero, or whoever 
 was the author of the treatise inscribed to Herennius. There 
 was a law, that those who in a storm forsook the ship should 
 forfeit all property therein ; and that the ship and lading should 
 belong entirely to those who staid in it. In a dangerous tem- 
 pest 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 sick 
 man kept possession, and claimed the benefit of the law. Now 
 here all the learned agree, that the sick man is not within the 
 reason of the law ; for the reason of making it was, to give 
 encouragement to such as should venture their lives to save the 
 vessel ; but this is a merit which he could never pretend to, who 
 neither staid in the ship upon that account, nor contributed any- 
 thing to its preservation." 4/^ .^ ^' f, r: t , ^ ..-j-c 
 
 1* Every statute is presumed to have a reasonable intendment, and the 
 strict letter of the statute must yield to the spirit when the legislative intent 
 is so manifest. Thus, where a statute made it the duty of railroads to erect 
 and maintain fences on the sides of their roads, and one section provided 
 " that so long as such fences shall not be made, and when not in good repair, 
 such railroad corporation shall be liable for damages which shall be done by 
 the agents or engines of such corporation, to cattle, etc., thereon," it was 
 held that the effect of the words, " when not in good repair," was not, as 
 the literal language would imply, to render railroad companies absolutely 
 liable in every conceivable case where their fences were not, at the time of 
 the injury, in proper repair, but only when the defect was attributable tc 
 negligence. Otherwise, it was said, they would be liable in all cases where 
 injury was occasioned by the road being out of repair, whether this were 
 caused by tempest, by flood, or by the wrongful acts of thir'i peisons, though 
 
28 OF THE NATURE 
 
 From this method of interpreting laws, by the reason of 
 them, arises what we czSS. equity, which is thus defined by 
 
 oF tha 
 
 Grotius : " the co rrgction oF that wherein J^ig._UaaL_{by 
 reason of its universality), is deficient." For since in laws all 
 cases cannot be foreseen or expressed, it is necessary that, when 
 the general decrees of the law come to be applied to particular 
 cases, there should be somewhere a power vested of defining 
 those circumstances, which (had they been foreseen) the legis- 
 lator himself would have expressed. And these are the cases 
 which, according to Grotius, " lex non exacte definit, sed arbitrio 
 boni viri permittit. 
 
 Equity thus depending, essentially, upon the particular 
 circumstances of each individual case, there can be no establish- 
 •62] ed *rules and fixed precepts of equity laid down, without 
 destroying its very essence, and reducing it to a positive 
 law.^* And, on the other hand, the liberty of considering all 
 
 there had been no opportunity to repair. {Murray v. N. Y. Cent. E. Co., 3 
 Abb. Dec. 339 ; see U. S. v. Kirby, 7 Wall. 482. A remarkable case is Riggs 
 V. Palmer, 115 N. Y. 506.) 
 
 ^ There have been from an early period, in the history of English juris- 
 orudence, courts having a peculiar jurisdiction and modes of procedure, 
 which are termed courts of equity as distinguished from courts of law. This 
 system of equity jurisprudence grew out of aa attempt to repair the defi- 
 ciencies of the strict legal methods. The only relief obtainable in a com- 
 mon-law court was the recovery of specific real or personal property, or pecu- 
 niary damages ; and there were also peculiar technical methods of pleading 
 requisite, and causes were heard and determined in the first instance by 
 juries. Courts of equity afforded other modes of relief and remedy, as by 
 granting injunctions to prevent injuries, by enforcing the specific perform- 
 ance of contracts, by requiring the delivery or cancellation of instruments, 
 &c. The mode of trial was also different, there being no juries ; and the 
 method of proof was, in certain respects, peculiar. The jurisdiction of 
 courts of equity was in some cases concurrent with that of the common-law 
 courts ; in other cases, exclusive, as in cases of trust. These differences 
 still continue in the main, though by a recent English statute the legal 
 methods of procedure have been assimilated in a measure to the equitable, 
 and the common-law courts are empowered to apply the doctrines of equity 
 jurisprudence in certain classes of cases. But there is the same adherence 
 to precedents in courts of equity as in courts of law ; so that when Black- 
 stone in the text uses the word " equity " in an enlarged, general sense, and 
 says that " there can be no established rules and fixed precepts of equity 
 laid down, &c.," he must not be understood as referring to the principles oi 
 equity jurisprudence, strictly so-called, as administered in courts of equity. 
 As he himself says elsewhere, " the system of our courts of equity is a 
 
OF LA WS IN GENERAL. 29 
 
 cases in an equitable light must not be indulged too far, lest 
 thereby we destroy all law, and leave the decision of every 
 question entirely in the breast of the judge. And law, without 
 equity, though hard and disagreeable, is much more desirable for 
 the public good than equity without law ; which would make 
 every judge a legislator, and introduce most infinite confusion ; 
 as there would then be almost as many different rules of action 
 laid down in our courts, as there are differences of capacity and 
 sentiment in the human mind. 
 
 SECTION. II. 
 
 [BL. COMM. — INTRODUCTION. — SECT. III.] 
 
 Of the Laws of England. 
 
 The municipal law of England, or the rule of civil conduct 
 prescribed to the inhabitants of this kingdom, may with suffi- 
 cient propriety be divided into two kinds : the lex non scripta, the 
 unwritten, or common law ; and the lex scripta, the written, oi' 
 statute law. 
 
 The lex non scripta, or unwritten law, includes not only general 
 customs, or the common law properly so called; but also the 
 particular customs of certain parts of the kingdom ; and likewise 
 
 labored, connected system, governed by established rules, and bound down 
 by precedents, from which they do not depart, although the reason of some 
 of them may perhaps be liable to objection." (see post page 824.) 
 
 The English distinction between legal and equitable procedure and juris- 
 diction was also adopted in the United States. But while in some States 
 there are separate courts of law and of equity, in others the administration 
 <A principles of equity and of law is committed to the same tribunals. The 
 present tendency of legislation is to do away with the mere formal differ- 
 ences between the two systems, and the diverse methods of practice, while 
 the substantial differences in regard to remedy and extent of jurisdiction are 
 still retained. In like manner, those States in which there were formerly 
 distinct courts of law and of equity are now generally giving these diverse 
 powers and functions to the same courts. Such changes have been made 
 in New York and a number of the other States. (See Basey v. Gallagher, 2c 
 Wall. 670.) 
 
30 OF THE LA WS 
 
 ^n^^ particular laws, that are by custom observed only in certain 
 courts and jurisdictions. 
 
 When I call these parts of our law leges non scriptce, I would 
 not be understood as if all those laws were at present merely 
 oral, or communicated from the former ages to the present 
 solely by word of mouth. It is true indeed thajt, in the profound 
 ignorance of letters which formerly overspread the whole western 
 world, all laws were entirely traditional, for this plain reason, 
 because the nations among which they prevailed had but little 
 idea of writing. Thus the British as well as the Gallic druids 
 committed all their laws as well as learning to memory ; and it 
 is said of the primitive Saxons here, as well as their brethren on 
 the continent, that leges sola niemoria et usu retinebant. But, 
 with us at present, the monuments and evidences of our» legal 
 customs are contained in the records of the several courts of 
 *64] justice, in books of *reports and judicial decisions, and in 
 the treatises of learned sages of the profession, preserved and 
 handed down to us from the times of the highest antiquity. 
 However, I therefore style these parts of our law leges non 
 scriptcE, because their original institution and authority are not set 
 down in writing, as acts of parliament are, but they receive their 
 binding power, and the force of laws, by long and immemorial 
 usage, and by their universal reception throughout the kingdom. 
 In like manner as Aulus Gellius defines jus non scriptum to be 
 that, which is " tacito et illiterato homijium consensu et wioribus 
 expressum." 
 
 Our ancient lawyers, and particularly Fortescue, insist with 
 abundance of warmth that these customs are as old as the primi- 
 tive Britons, and continued down, through the several mutations 
 of government and inhabitants, to the present time, unchanged 
 and unadulterated. This may be the case as to some ; but in 
 general, as Mr. Selden in his notes observes, this assertion must 
 be understood with many grains of allowance ; and ought only 
 to signify, as the truth seems to be, that there never was any 
 formal exchange of one system of laws for another; though 
 doubtless, by the intermixture of adventitious nations, the Ro- 
 mans, the Picts, the Saxons, the Danes, and the Normans, they 
 must have insensibly introduced and incorporated many of their 
 own customs with those that were before establisned ; thereby, 
 in aL probability, improving the texture and wisdom of the whole 
 
OF ENGLAND. 31 
 
 by the accumulated wisdom of divers particular countries. Our 
 laws, saith Lord Bacon, are mixed as our language ; and, as our 
 language is so much the richer, the laws are the more complete. 
 
 And indeed our antiquaries and early historians do all posi- 
 tively assure us, that our body of laws is of this compounded 
 nature. For they tell us that in the time of Alfred the local 
 customs of the several provinces of the kingdom were grown so 
 various, that he found it expedient to compile his Dome-Book, 
 or Liber yudicialis, for the general use of the whole kingdom. 
 *This book is said to have been extant so late as the reign [*65 
 of king Edward the Fourth, but is now unfortunately lost It 
 contained, we may ^probably suppose, the principal maxims of 
 the common law, the penalties for misdemeanors, and the forms 
 of judicial proceedings. Thus much may at least be collected 
 from that injunction to observe it, which we find in the laws of 
 king Edward the elder, the son of Alfred, " Omnibus qui reipub- 
 licoe prcestmt etiain atque etiam mando, ut omnibus mquos se 
 prcBbeant judices, perinde ac in jiidiciali libro {Saxonice iom-beo) 
 scriptum habetur: nee quicquam fonnident quin jus comm.une 
 {^Saxonice foictrihce) audacter libereqtie dicant." 
 
 But the irruption and establishment of the Danes in England, 
 which followed soon after, introduced new customs, and caused 
 this code of Alfred in many provinces to fall into disuse, or at 
 least to be mixed and debased with other laws of a coarser alloy ; 
 so that, about the beginning of the eleventh century, there were 
 three principal systems of laws prevailing in different districts : 
 I. The Mercen-Lage, or Mercian laws, which were observed in 
 many of the midland counties, and those bordering on the prin- 
 cipality of Wales, the retreat of the ancient Britons ; and there- 
 fore very probably intermixed with the British or Druidical cus- 
 toms. 2. The West-Saxon Lage, or laws of the West Saxons, 
 which obtained in the counties to the south and west of the 
 island, from Kent to Devonshire. These were probably much 
 the same with the laws of Alfred above mentioned, being the 
 municipal law of the far most considerable -part of his domin- 
 ions, and particularly including Berkshire, the seat of his pecu- 
 liar residence. 3. The Dane Lage, or Danish law, the very name 
 of which speaks its original and composition. This was princi- 
 pally maintained in the rest of the midland counties, and also on 
 the eastern coast, the part most exposed to the visits of that 
 
?2 OF THE LA WS 
 
 piratical people. As for the very northern provinces, they were 
 at that time under a distinct government, 
 
 *66] *Out of these three laws, Roger Hoveden and Ranulphus 
 Cestrensis inform us, king Edward the Confessor, extracted one 
 uniform law, or digest of laws, to be observed throughout the 
 whole kingdom ; though Hoveden, and the author of an eld 
 manuscript chronicle assures us likewise that this work was pro- 
 jected and begun by his grandfather King Edgar. And indeed 
 a general digest of the same nature has been constantly found 
 expedient, and therefore put in practice by other great nations, 
 which were formed from an assemblage of little provinces, gov- 
 erned by peculiar customs, as in Portugal, under King Edward, 
 about the beginning of the fifteenth century. In Spain under 
 Alonzo X. who, about the year 1250, executed the plan of his 
 father St. Ferdinand, and collected all the provincial customs 
 into one uniform law, in the celebrated code entitled Las Paftidas. 
 And in Sweden, about the same era, when a universal body of 
 common law was compiled out of the particular customs, estab- 
 lished by the laghman of every province, and entitled the land's 
 lagh^ being analogous to the common law of England. 
 
 Both these undertakings of King Edgar and Edward the Con- 
 fessor seem to have been no more than a new edition, or fresh 
 promulgation, of Alfred's code or dome-book, with such additions 
 and improvements as the experience of a century and a half had 
 suggested ; for Alfred is generally styled by the same historians 
 the legum Anglicanarum conditor, as Edward the Confessor is the 
 restitutor. These, however, are the laws which our histories sc 
 often mention under the name of the laws of Edward the Con- 
 fessor, which our ancestors struggled so hardly to maintain, un- 
 der the first princes of the Norman line ; and which subsequent 
 princes so frequently promised to keep and restore, as the most 
 popular act they could do, when pressed by foreign emergencies 
 or domestic discontents. These are the laws that so vigorously 
 *=67] withstood *the repeated attacks of the civil law ; which 
 established in the twelfth century a new Roman empire over 
 most of the states of the continent; states that have lost, and 
 perhaps upon that account, their political liberties ; while the 
 free constitution of England, perhaps upon the same account^ 
 has been rather improved than debased. These, in short, are the 
 laws which gave rise and origin to that collection of maxims 
 
OF ENGLAND. 33 
 
 and customs which is now known by the name of the common 
 law; a name either given to it in contradistinction to other laws, 
 as the statute law, the civil law, the law merchant, and the like ; 
 or, more probably, as a law common to all the realm, thn jus 
 commune, or folcright, mentioned by king Edward the elder, after 
 the abolition of the several provincial customs and particular 
 laws before mentioned. 
 
 But though this is the most likely foundation of this collec- 
 tion of maxims and customs, yet the maxims and customs, so. 
 collected, are of higher antiquity than memory or history can 
 reach : nothing being more difficult than to ascertain the precise 
 beginning and first Spring of an ancient and long-established 
 custom. Whence it is that in our law the goodness of a custom 
 depends upon its having been used time out of mind ; or, in the 
 solemnity of our legal phraseJtime whereof the memory of man 
 runneth not to the contraryT^^his it ia that gives it its weight 
 and authority : and of this nature are the maxims and customs 
 which compose the common law, or lex nofi saipta, of this 
 kingdom. 
 
 This unwritten, or common law is properly distinguishable 
 into three kinds : i. General customs ; which are the universal 
 rule of the whole kingdom, and form the common law, in its 
 stricter and more usual signification. 2. Particular customs : 
 which, for the most part, affect only the inhabitants of particular 
 districts. 3. Certain particular laws ; which, by custom, are 
 adopted and used by some particular courts, of pretty general 
 and extensive jurisdiction. 
 
 * I. As to general customs, or the common law, [*68 
 properly so called ; this is that law, by which proceedings and 
 determinations in the king's ordinary courts of justice are guided 
 and directed.-' This, for the most part, settles the course in 
 
 '"The common-law includes those principles, usages, and rules of action 
 applicable to the government and security of person and property, which do 
 not rest for their authority upon any express and positive declaration of the 
 will of the legislature." (Kent's Coram, i., p. 471.) The common-law of 
 England, as it existed at the time of the Revolution, was adopted in many of 
 the States by Constitutional provisions or legislative enactments, or was as- 
 sumed in certain States as the basis of their law and as authoritative upon their 
 courts. Thus it was declared by the Constitution of New York, of 1777, 
 that such parts of the common-law of England and of the statute law of Eng- 
 and and Great Britain, as together with the acts of the Colonial legislature. 
 8 
 
34 OF THE LA WS 
 
 which lands descend by inheritance ; the manner and form ol 
 acquiring and transferring property; the solemnities and obli- 
 gation of contracts ; the rules of expounding wills, deeds, and 
 acts of parliament ; the respective remedies of civil injuries ; the 
 several species of temporal offences ; with the manner and 
 degree of punishment ; and an infinite number of minuter par- 
 ticulars, 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 Exchequer ; — that 
 the eldest son alone is heir to his ancestor ; — that property may 
 be acquired and transferred by writing ; — that a deed is of no 
 validity unless sealed and delivered ; — that wills shall be con- 
 strued more favourably, and deeds more strictly ; — that money 
 lent upon bond is recoverable by action of debt ; — that breaking 
 the public peace is an offence, and punishable by fine and im- 
 prisonment ; — all these are doctrines that are not set down in 
 any written statute or ordinance, but depend merely upon im- 
 memorial usage, that is, upon common law for their support. 
 
 Some have divided the common law into two principal 
 grounds or foundations : i . Established customs ; such as that, 
 where there are three brothers, the eldest brother shall be heir 
 to the second, in exclusion of the youngest : and 2. Established 
 rules and maxims ; as, " that the king can do no wrong, that no 
 man shall be bound to accuse himself, " and the like. But I 
 
 formed the law of the Colony on the 19th of April, 1775, should continue to 
 be the law of the State. Other States fixed upon other dates. The effect, 
 therefore, is that the decisions of the English courts prior to the date pre- 
 scribed are as binding in the State fixing such date as the decisions of its 
 own courts, so far as unmodified by subsequent legislation or adjudication. 
 But decisions rendered in one State are in no sense authoritative upon the 
 courts of other States, though frequently referred to or quoted by way of 
 argument or illustration. The United States, considered as a nation, has 
 no common-law ; and the jurisdiction of the U.S. courts is entirely based upon 
 the Constitution and upon statutes which Congress has, by the Constitution, 
 power to enact. The decisions of these courts upon questions involving the 
 construction of the U. S. Constitution are binding upon the courts of the 
 several States, but not generally when rendered upon commercial questions. 
 There are many classes of cases over which the U. S. courts have exclusive 
 jurisdiction, such as admiralty causes, patents, copyrights, questions of re- 
 venue, &c. It should be stated that the law of Louisiana is not based upoB 
 the common-law of England, but UDon the civil law. 
 
OF ENGLAND. 35 
 
 take these to be one and the same thing. For the authority of 
 these maxims rests entirely upon general reception and usage ; 
 and the only method of proving, that this or that maxim is a 
 rule of the common law, is by showing that it hath been always 
 the custom to observe it. 
 
 * But here a very natural, and very material question [*69 
 arises : how are these customs or maxims to be known, and by 
 whom is their validity to be determined .? The answer is, by 
 the judges in the several courts of justice. They are the de- 
 positories of the laws ; the living oracles, who must decide in all 
 cases of doubt, and who are obund By an oath to decide accord- 
 ing to the law of the'land. The knowledge of that law is de 
 rived from expejience and s^dy ; from the " viginti annorum 
 lucubrationes," which Fortescue mentions; and from being long 
 personally accustomed to the judicial decisions of their predeces- 
 sors. And indeed these judicial decisions 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 the proceedings previous thereto, are 
 carefully registered and preserved, under the name of records, in 
 public repositories set apart for that particular purpose ; and to 
 them frequent recourse is had, when any critical question arises, 
 in the determination of which former precedents may give light 
 or assistance. And therefore, even so early as the Conquest, we 
 find the " prceteritoruin memoria eveniorum" reckoned up as 
 one of the chief qualifications of those, who were held to be 
 " legibus patrice optime instituti." For 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 solemnly declared and deter- 
 mined, 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 hisi 
 private sentiments : he being sworn to determine, not accordingjl 
 to his own 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. Yet this rule admits 
 of exception, where the former determination is most evidently 
 contrary to reason ; * much more if it be clearly contrary [*70 
 
36 OF THE LAWS 
 
 to the Divine law. But even in such cases the subsequent judges 
 do not pretend to make a new law, but to vindicate the old one 
 from misrepresentation. For if it be found that the former de- 
 cision is manifestly absurd or unjust it is declared, not that such 
 a sentence was bad law, but that it was not law ; that is, that it 
 is not the established custom of the realm, as has been erro- 
 neously determined. And hence it is that our lawyers are with 
 justice so copious in their encomiums on the reason of the com- 
 mon law ; that they tell us, that the law is the perfection of 
 reason, that it always intends to conform thereto, and that what 
 iajiot reason is not law. Not that the particular reason of every 
 ruleTnTheTawcan at this distance of time be always precisely 
 assigned ; but it is sufficient that there be nothing in the rule 
 flatly contradictory to reason, 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 not be remembered or discerned, 
 hath been wantonly broken in upon by statutes or new resolu- 
 tions, 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 unj ust : for 
 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 consideration.^ To illustrate this doctrine by 
 
 2 The rule that established precedents should be adhered to and followed, 
 although it is a general principle wherever the common-law is in force, is 
 not so rigidly observed as to prevent courts of appellate jurisdiction from 
 overruling previous decisions which are deemed to be erroneous and unrea- 
 sonable. It is very common to overrule the decisions of inferior courts, 
 and many decisions of the highest courts of the various States and in Eng- 
 land, have also been subsequently overruled by the same tribunals in which 
 they were originally rendered. But the force of adherence to precedent is 
 nevertheless very strong, and will sometimes cause an established principle 
 of law which has been long acquiesced in, to be firmly maintained, though 
 it may appear unreasonable and injurious in its tendency. A change in the 
 law must then be made, if at all, by statute. But the principle of stare de- 
 cisis (to adhere to previous decisions) is to this extent absolutely controll- 
 ing, that courts of inferior jurisdiction must be governed strictly by the de^ 
 cisions of the superior courts of the same State, however unjust and absurd 
 such precedents may seem to be. But a decision previously rendered is 
 only so far binding as a precedent, as it was a determination of the exacl 
 
OF ENGLAND. 37 
 
 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 it shall rather escheat to the king, or 
 other superior lord. Now this is a positive law, fixed and estab- 
 lished by custom, which custom is evidenced by judicial decis- 
 ons ; and therefore can never be departed from by any modern 
 judge without a breach of his oath and *the law.' [*71 
 For herein there is nothing repugnant to natural justice ; 
 though the artificial reason of it, drawn from the feudal 
 law, may not be quite obvious to everybody. And therefore, 
 though a modern judge, on account of a supposed hardship upon 
 the half brother, might wish it had been otherwise settled, yet it 
 is not in his power to alter it. But if any court were now to de- 
 termine, that an elder brother of the half blood might enter upon 
 and seize any lands that were purchased by his younger brother, 
 no subsequent judges would scruple to declare that such prior 
 determination was unjust, was unreasonable, and therefore was 
 not law. So that the law, and the opinion of the judge, are not 
 always convertible terms, or one and the same thing ; since it 
 sometimes may happen that the judge may mistake the law. 
 Upon the whole, however, we may take it as a general rule, "that 
 the decisions of courts of justice are the evidence of what is 
 common law," in the same manner as, in the civil law, what the 
 emperor had once determined was to serve for a guide for the 
 future. 
 
 The decisions therefore of courts are held in the highest re- 
 gard, and are not only preserved as authentic records in the treas- 
 uries of the several courts, but are handed out to public view in 
 the numerous volumes of reports which furnish the lawyer's li- 
 brary. These reports are histories of the several cases, with a 
 short summary of the proceedings, which are preserved at large 
 in the record ; the arguments on both sides and the reasons the 
 
 question at issue in the cause litigated ; and statements of a collateral or 
 inferential character, made in the opinion of the court, or adduced for the 
 sake of illustration or explanation, are in no way authoritative. These are 
 usually termed dicta (sayings) or obiter dicta (sayings by the way.) There- 
 fore, in reading the reports of cases it is necessary to carefully discriminate 
 between the actual point decided, and the dicta of the court or judge. (See 
 Oakley v. Aspinwall, 13 N. Y. 500; Kent's Comm. i. p. 476; 103 U. S. 118.) 
 8 This rule has been repealed in England by statute. 
 
38 OF THE LA WS 
 
 court gave for its judgment ; taken down in short notes by per 
 sons present at the determination. And these serve as indexes 
 to, and also to explain, the records, which always, in matters of 
 consequence and nicety, the judges direct to be searched. The 
 reports are extant in a regular series from the reign of King 
 Edward the Second inclusive ; and, from his time to that of Henry 
 *72] the *Eighth, were taken by the prothonotaries, or chief 
 scribes of the court, at the expense of the crown, and published 
 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 : for, though King James the First, at the instance of Lord 
 Bacon, appointed two reporters with a handsome stipend for this 
 purpose, yet that wise institution was soon neglected, and from the 
 reign of Henry the Eighth to the present time this task has been 
 executed by many private and contemporary hands ; * who some- 
 times through haste and inaccuracy, sometimes through mistake 
 and want of skill, have published very crude and imperfect 
 (perhaps contradictory) accounts of one and the same determin 
 ation. Some of the most valuable of the ancient reports are 
 those published by Lord Chief-Justice Coke ; a man of infinite 
 learning in his profession, though not a little infected with the 
 pedantry and quaintness of the times he lived in, which appear 
 strongly in all his works. However, his writings are so highly es- 
 teemed, that they are generally cited without the author's name (a). 
 
 * There is now an incorporated association of law reporting in England, 
 under whose auspices the reports of decisions rendered in the superior 
 courts, are published in a uniform series. This is composed of leading 
 members of the bar, and the reports are prepared with great care and judg- 
 ment, and are of much value. In some states of this country, an official re- 
 porter is appointed to report court decisions, while in others this is done by 
 volunteer reporters, the privilege being open to any -who desire to undertake 
 such labor. 
 
 A reporter prepares an abstract of the principle of law established by the 
 decision, which is prefixed to the report, and is termed the " head-note " or 
 " syllabus." He also prepares usuaHy a statement of the facts of the case 
 decided, which is placed after the head-note, and before the opinion of the 
 judge or court. The word ''Held'' in a head-note denotes the points de- 
 cided ; ''It seems " or "Semble,''' denote dicta. 
 
 {a) His reports, for instance, are styled, Kar'cfoxijv, tke reports; and, in 
 quoting them, we usually say, i or 2 Rep. not i or 2 Coke's Rep. as in citing 
 other authors. The reports of Judge Croke are also cited in a peculiar man- 
 
OF ENGLAND. 39 
 
 Besides these reporters, there are also other authors, to whom 
 great veneration and respect is paid by the students of the com- 
 mon law. Such are Glanvil and Bracton, BrHton and FJeta, Heng- 
 ham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde, 
 with some others of ancient date ; whose treatises are cited as 
 authority, and are evidence that cases have formerly happened in 
 which such and such points were determined, which are now be- 
 come settled and first principles. One of the last of these 
 methodical writers in point of time, whose works are of any 
 intrinsic authority in the courts of justice, and do not entirely 
 depend on the strength of their quotations from older authors, is 
 the *same learned jnidge we have just mentioned. Sir Ed- [*73 
 ward Coke ; who hath written four volumes of institutes, as he is 
 pleased to call them, though they have little of the institutional 
 method to warrant such a title. The first volume is a very exten- 
 sive comment upon a little excellent treatise of tenures, com- 
 piled by Judge Littleton in the reign of Edward the Fourth. 
 This comment is a rich mine of valuable common law learning, 
 collected and heaped together from the ancient reports and year 
 books, but greatly defective in method (3). The second volume 
 is a comment upon many old acts of parliament, without any sys- 
 tematical order ; the third a more methodical treatise of the 
 pleas of the crown; and the fourth an account of the several 
 species of courts (c). 
 
 And thus much for the first ground and chief corner stone 
 of the laws of England, which is general immemorial custom, 
 or commor law, from time to time declared in the decisions of 
 the courts of justice ; which decisions are preserved among our 
 public records, explained in our reports, and digested for general 
 use in the authoritative writings of the venerable sages of the 
 law. 
 
 ner, by the names of those princes, in whose reigns the cases reported in his 
 three volumes were determined ; viz., Queen Elizabeth, King James, and 
 King Charles the First, as well as by the number of each volume. For some- 
 times we call them 1, 2, and 3 Cro. but more commonly Cro. Eliz., Cro. JaCi 
 and Cro. Car. 
 
 (b) It is usually cited either by the name of Co. Litt. or as 1 Inst. 
 
 (c) These are cited as 2, 3, or 4 Inst, without any ai thor's name. An 
 honorary distinction which, we observed, is paid to the works of no other 
 writer; the generality of reports and other tracts being quoted in the nama 
 of the compiler, as 2 Ventris, \ Leonard, 1 Siderfin, and the like. 
 
40 OF THE LA WS 
 
 The Roman law, as practised in the times of its liberty, paid 
 also a great regard to custom : but not so much as our law : it 
 only then adopting it, when the written law was deficient. Though 
 the reasons alleged in the digest will fully justify our practice 
 in making it of equal authority with, when it is not contradicted 
 by, the written law. " For, since (says Julianus,) the written 
 law binds us for no other reason but because it is approved by the 
 judgment of the people, therefore those laws which the people 
 *74] have approved without writing ought also to bind everybody. 
 For where is the difference, whether the people declare their *as- 
 sent to a law by suffrage, or by a uniform course of acting accord- 
 ingly .'" Thus did they reason while Rome had some remains of 
 her freedom ; but, when the imperial tyranny came to be fully 
 established, the civil laws speak a very different language. "Quod 
 principi placuit legis habet vigorem, cum populus ei et in eum omne 
 suum imperium et potestatem conferat" says Ulpian : " Im- 
 perator solus et conditor et interpres legis existimatur," says the 
 code. And again, " sacrilegii instar est rescripto principii 
 obviari." And indeed it is one of the characteristic marks of 
 English liberty, that our common law depends upon custom ; 
 which carries this internal evidence of freedom along with it, that 
 it probably was introduced by the voluntary consent of the peo- 
 ple. 
 
 II. The second branch of the unwritten laws of England are 
 particular customs, or laws, which affect only the inhabitants of 
 particular districts. 
 
 These particular customs, or some of them, are without doubt 
 the remains of that multitude of local customs before mentioned, 
 out of which the common law, as it now stands, was collected at 
 first by King Alfred, and afterwards by King Edgar and Edward 
 the Confessor : each district mutually sacrificing some of its own 
 special usages, in order that the whole kingdom might enjoy the 
 benefit of one uniform and universal system of laws. But for 
 reasons that have been now long forgotten, particular counties, 
 cities, towns, manors, and lordships, were very early indulged 
 with the privilege of abiding by their own customs, in contradis- 
 tmction to the rest of the nation at large : which privilege is 
 confirmed to them by several acts of parliament. 
 
 Such is the custom of gavelkind in Kent, and some other parts 
 of the kingdom (though perhaps it was also general till the Nor- 
 
OF ENGLAND. 41 
 
 man conquest), which ordains, among other things, *that [*75 
 not the eldest son only of the father shall succeed to his inheri- 
 tance, but all the sons alike : and that, though the ancestor be 
 attainted and hanged, yet the heir shall succeed to his estate, 
 without any escheat to the lord. Such is the custom that pre- 
 vails in divers ancient boroughs, and therefore called borough- 
 English, that the youngest son shall inherit the estate, in pref- 
 erence to all his elder brothers. Such is the custom in other 
 boroughs that a widow shall be entitled, for her dower, to all her 
 husband's lands ; whereas, at the common law, she shall be 
 endowed of one-third part only. Such also are the special and 
 particular customs flf manors, of which every one has more or 
 less, and which bind all the copyhold and customary tenants that 
 hold of the said manors. Such likewise is the custom of holding 
 divers inferior courts, with power of trying causes, in cities and 
 trading towns, the right of holding which, when no royal grant 
 can be shown, depends entirely upon immemorial and established 
 usage. Such, lastly, are many particular customs within the city 
 of London, with regard to trade, apprentices, widows, orphans, 
 and a variety of other matters. All these are contrary to the 
 general law of the land, and are good only by special usage ; 
 though the customs of London are also confirmed by act of 
 parliament. 
 
 To this head may most properly be referred a particular sys- 
 tem of customs used only among one set of the king's subjects, 
 called the custom of merchants, or lex mercatoria : which, how- 
 ever different from the general rules of the common law, is yet 
 ingrafted into it, and made a part of it ; being allowed, for the 
 benefit of trade, to be of the utmost validity in all commercial 
 transactions : for it is a maxim of law, that " cuilibet in sua arte 
 credendutn est'.' 
 
 The rules relating to particular customs regard either the 
 proof of their existence ; their legality when proved ; or their 
 usual method of allowance. 
 
 And first we will consider the rules of proof. 
 
 *As to gavelkind, and borough-English, the law takes [*76 
 particular notice of them, and there is no occasion to prove that 
 such customs actually exist, but only that the lands in question 
 are subject thereto. All other private customs must be particu- 
 larly pleaded, and as well the existence of such customs must be 
 
42 OF THE LA WS 
 
 shuwn, as that the thing in dispute is within the custom alleged. 
 The trial in both cases (both to show the existence of the custom, 
 as, "that in the manor of Dale lands shall descend only to the 
 heirs male, and never to the heirs female ; " and also to show 
 "that the lands in question are within that manor") is by a jury 
 of twelve men, and not by the judges ; except the same particular 
 custom has been before tried, determined, and recorded in the 
 same court. 
 
 The customs of London differ from all others in point of trial : 
 for, if the existence of the custom be brought in question, it shall 
 not be tried by a jury, but by certificate from the lord mayor and 
 aldermen by the mouth of their recorder ; unless it be such e. 
 custom as the corporation is itself interested in, as a right of 
 taking toll, &c., for then the law permits them not to certify on 
 their own behalf.^ 
 
 6 These " particular customs or laws " to which Blackstone refers, "which 
 affect only the inhabitants of particular districts," and are therefore entirely 
 local and exist irrespective of contract, must be distinguished from the 
 customs or usages of trade, or business, which are generally allowed to be 
 proved in court in order to explain or modify the terms of contracts or trans- 
 actions into which parties have entered. Most of the customs enumerated 
 in the text are exclusively English, and there are none corresponding to them 
 existing in the United States. There is, however, a local usage existing in some 
 States, which is in some respects similar to them, by which a tenant for years 
 has a right to remove " away-going crops," as they are termed, at the expira- 
 tion of his lease, contrary to the general rule that such tenants have no emble- 
 ments. But the usages of trade, ox business, are numerous and diverse ; and 
 it is a general rule that parties are presumed to contract in reference to a uni- 
 form, continuous, and well-settled usage pertaining to the matters as to which 
 they enter into agreement, where such usage is not in opposition to well-settled 
 principles of law and is not unreasonable. Thus where work was done by 
 carpenters at so much a day, proof was received that by a usage in that trade 
 -I working day was ten hours long. (Hinton v. Locke, 5 Hill, 437. See also 
 Fordv. Tirrell, 9 Gray, 401.) So it may be shown by proof of established 
 usage, that words or expressions are employed in particular trades with 
 peculiar significations. {Robinson v. U. S., 13 Wall. 363 ; Page v. Cole, 120 
 Mass. 37.) It is not necessary to prove that such usages have existed any 
 particular length of time, but only that they have been so uniformly acted 
 upon and so commonly and continuously recognized in a particular form of 
 business that parties must be presumed to contract in reference thereto. 
 They are allowed to aifect the construction of an agreement because they are 
 deemed to be within the contemplation of the parties and thus to enter into 
 the terms of the contract. But this presumption in regard to particular usao-es 
 is not conclusive, and may be rebutted by proof that one of the contracting 
 
OF ENGLAND. 43 
 
 When a cus\om 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 estab- 
 lished maxim of the law. To make a particular custom good, 
 the following are necessary requisites. 
 
 1. That it have been used so long, that the memory of man 
 runneth not to the contrary. So that, if. any one can show the 
 beginning of it, it is no good custom.' For which reason no cus- 
 tom can prevail against an express act of *parliament, since [*77 
 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 : tEfe revival gives it a new beginning, 
 which will be within time of memory, and thereupon the custom 
 will be void. But this must be understood with regard to an 
 interruption of the right; for an interruption of \!ci& possession 
 only, for ten or twenty years, will not destroy the custom. As if 
 the inhabitants of a parish have a customary right of watering 
 
 parties was ignorant of such usage. (49 N. Y. 464; 120 U. S. 499.) But a 
 custom or usage must be reasonable in order that it may be permitted to 
 control or qualify the stipulations of a contract. If it be unreasonable, 
 evidence of it will be rejected. Thus in a case where there was a sale of 
 sheep, and the seller before delivery sheared them and kept the wool, it was 
 held incompetent to prove that by a local custom in the county where the 
 transaction took place, the wool of sheep in such cases does not go to the 
 purchaser, {Groat v. Gile, 51 N. Y. 431. See also Wheeler v. Newbould, 
 16 N. Y. 392; Partridge v. Ins. Co., 15 Wall. 573.) So if there is no 
 uncertainty as to the terms of a contract, usage cannot be proved to contra- 
 dict or qualify its provisions. Usage is only resorted to for the purpose of 
 ascertaining with greater certainty the intent of the parties ; not to contravene 
 their express stipulations. (^Barnard v. Kellogg, 10 Wall. 383 ; Collender v. 
 Dinsmore, 55 N. Y. 200.) So evidence of a usage of trade is inadmissible to 
 contradict a settled rule of commercial law. {Markham v. Jaitdon, 41 N. Y. 
 235. See further 8 N. Y. 190; 8 How. U. S. 83; 23 id, 420; 115 Mass. 
 
 514.) 
 
 " The period of legal memory was deemed in English law tS date from the 
 first year of the reign of Richard I. (1189) ; and when it was said that a cus- 
 tom or privilege must have been exercised from time immemorial, the meaning 
 was that its enjoyment must not appear to have commenced at a later date 
 But by lapse of time this period became too remote for tracing the origin of 
 such privileges ; and it was afterwards held, that from proof of the enjoyment 
 (>f a custom foi twenty years, the jury were justified in finding that the cus- 
 tom had existed immemorially. This matter is now regulated in England by 
 •tatute (Broom Com. Law, p. 12. See Ocan Ass'n. v. Brinley, 34 N. J. Eq. 438 ) 
 
44 OF THE LA WS 
 
 their cattle at a certain pool, the custom is not destroyed, though 
 they do not use it for ten years ; it only becomes more difficult 
 to prove ; but if the right be any how discontinued for a day, the 
 custom is quite at an end. 
 
 3. It must have been peaceable, and acquiesced in ; not sub- 
 jectJa-Co ntention and disp trte. For as customs owe their'original 
 to common consent, their being immemorially disputed, either at 
 law or otherwise, is a proof that such consent was wanting. 
 
 4. Customs must be reasonab le ; or rather, taken negatively, 
 they must not be unreasonable. Which is not always, as Sir 
 Edward Coke says, to be understood of every unlearned man's 
 reason, but of artificial and legal reason, warranted by authority 
 of law. Upon which account a custom may be good, though the 
 particular reason of it cannot be assigned ; for it sufficeth, if no 
 good legal reason can be assigned against it. Thus a custom in 
 a parish, that no man shall put his beasts into the common till 
 the third of October, would be good ; and yet it would be hard 
 to show the reason why that day in particular is ^^ed upon, 
 rather than the day before or after. But a custom, that no cattle 
 shall be put in till the lord of the manor has first put in his, is 
 unreasonable, and therefore bad, for peradventure the landlord 
 will never put in his, and then the tenants will lose all their 
 profits. 
 
 •78] *S. Customs ought to be ^certain. A custom, that lands 
 shall descend to the most worthy of the owner's blood, is void; 
 for how shall this worth be determined .' but a custom to de- 
 scend to the next male of the blood, exclusive of females, is 
 certain, and therefore good. A custom to pay two pence an acre 
 in lieu of tithes, is good ; but to pay sometimes two-pence, and 
 sometimes three-pence, as the occupier of the land pleases, is bad 
 for its uncertainty. Yet a custom, to pay a year's improved 
 value for a fine on a copyhold estate, is good ; though the value 
 is a thing uncertain : for the value may at any time be ascer- 
 tained ; and'the maxim of law is, id cettum est, quod certum reddi 
 potest. 
 
 6. Customs, though established by consent, must be (when 
 established) compels oiy ; and not left to the opticto of every man, 
 whether he will use them or no. Therefore a custom, that all 
 the inhabitants shall be rated toward the maintenance of a bridge, 
 will be good ; but a custom, that every man is to contribute 
 
OF ENGLAND. 45 
 
 thereto at his own pleasure, is idle and absurd, and indeed no 
 custom at all. 
 
 7. Lastly, customs must be consistent with each other : one 
 I custom cannot be set up in opposition to another. For if botn 
 ''"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. 
 
 Next, as to the allowance of special customs. Customs, in 
 derogation of the common law, must be construed strictly. Thus, 
 by the custom of gavelkind, an infant of fifteen years *may, [*79 
 by one species of conveyance, (called a deed of feoffment,) convey 
 away his lands in fee simple, or for ever. Yet this custom does 
 not empower him to use any other conveyance, or even to lease 
 them for seven years : for the custom must be strictly pursued. 
 And, moreover, all special customs must submit to the king's 
 prerogative. Therefore, if the king purchases lands of the natures 
 of gavelkind, where all the sons inherit equally, yet, upon the 
 king's demise, his eldest son shall succeed to those lands alone. 
 And thus much for the second part of the leges non serif tee, or 
 those particular customs which affect particular persons or dis- 
 tricts only. 
 
 III. The third branch of them are those peculiar laws, which 
 by custom are adopted and used only in certain peculiar courts 
 and jurisdictions. And by these I understand the civil and 
 canon laws. 
 
 It may seem a little improper at first view to rank these laws 
 under the head of leges non scriptce, or unwritten laws, seeing they 
 are set forth by authority in their pandects, their codes, and their 
 institutions ; their councils, decrees, and decretals ; and enforced 
 by an immense number of expositions, decisions, and treatises ot 
 the learned in both branches of the law. But I do this, after the 
 example of Sir Matthew Hale, because it is most plain, that it is 
 not on account of their being iuritten laws that either the canon 
 law, or the civil law, have any obligation within this kingdom ; 
 neither do their force and efEcacy depend upon their own in- 
 
46 OF THE LA WS 
 
 trinsic authority, which is the case of our written laws, or acts 
 of parliament. They bind not the subjects of England, because 
 their materials were collected from popes or emperors ; were di- 
 gested by Justinian, or declared to be authentic by Gregory. These 
 considerations give them no authority here ; for the legislature of 
 England doth not, nor ever did, recognize any foreign power as 
 superior or equal to it in this kingdom, or as having the right to 
 give law to any, the meanest of its subjects. But all the 
 *80] *strength that either the papal or imperial laws have ob- 
 tained in this realm, or indeed in any other kingdom in Europe, is 
 only because they have been admitted and received by imme- 
 morial usage and custom in some particular cases, and 
 some particular courts ; and then they form a branch of 
 the leges non scripta, or customary laws; or else because 
 they are in some other cases introduced by consent of par- 
 liament, and then they owe their validity to the leges serif tee, or 
 statute law. This is expressly declared in those remarkable 
 words of the statute 25 Hen. VIII. c. 21, addressed to the king's 
 royal majesty : " This your grace's realm, recognizing no supe- 
 rior under God but only your grace, hath been and is free from 
 subjection to any man's laws, but only to such as have been de- 
 vised, made, or ordained within this realm, for the wealth of the 
 same ; or to such other, as, by sufferance of your grace and your 
 progenitors, the people of this your realm have taken at their free 
 liberty, by their own consent, to be used among them ; and have 
 bound themselves by long use and custom to the observance of 
 the same ; not as to the observance of the laws of any foreign 
 prince, potentate, or prelate ; but as to the customed and ancient 
 laws of this realm, originally established as laws of the same, by 
 the said sufferance, consents, and customs; and none other- 
 wise." 
 
 By the civil law, absolutely taken, is generally understood 
 the civil or municipal law of the Roman empire, as comprised in 
 the institute, the code, and the digest of the emperor Justinian, 
 and the novel constitutions of himself and some of his successors. 
 Of which, as there will frequently be occasion to cite them, by 
 way of illustrating our own laws, it may not be amiss to give a 
 short and general account. 
 
 The Roman law (founded first upon the regal constitutions 
 of their ancient kings, next upon the twelve tables of the decern^ 
 
OF ENGLAND. 47 
 
 viri, then upon the laws or statutes enacted by the senate or 
 people, the edicts of the pvsetor, and the responsa prudentum, or 
 opinions of learned lawyers, and lastly upon the imperial de- 
 crees, or constitutions of successive emperors,) had grown [*81 
 to so great a bulk, or, as Livy expresses it, " tain immensus ali- 
 arum super alias acervatarum legum cumulus" that they were com- 
 puted to be many camels' load by an author who preceded Justin- 
 ian. This was in part remedied by the collections of three pri- 
 vate lawyers, Gregorius, Hermogenes, and Papirius ; and then 
 by the emperor Theodosius the younger, by whose orders a code 
 was compiled a. d. 438, being a methodical collection of all the 
 imperial constitutions then in force : which Theodosian code was 
 the only book of civil law received as authentic in the western 
 I part of Europe till many centuries after ; and to this it is prob- 
 able that the Franks and Goths might frequently pay some re- 
 gard, in framing legal constitutions for their newly erected king- 
 doms : for Justinian commanded only in the eastern remains of 
 the empire ; and it was under hi'S auspices that the present body 
 of civil law was compiled and finished by Tribonian and other 
 lawyers, about the year 533. 
 
 This consists of, i. The institutes, which contain the ele- 
 ments or first principles of the Roman law, in four books. 2. 
 The digests, or pandects, in fifty books ; containing the opinions 
 and writings of eminent lawyers, digested in a systematical 
 method. 3. A new code, or collection of imperial constitutions, 
 in twelve books ; the lapse of a whole century having rendered 
 the former code of Theodosius imperfect. 4. The novels, or new 
 constitutions, posterior in time to the other books, and amount- 
 ing to a supplement to the code ; containing new decrees of suc- 
 cessive emperors, as new questions happened to arise. These 
 form the body of Roman law, or corpiis juris civilis, as pub- 
 lished about the time of Justinian ; which, however, fell soon 
 into neglect and oblivion, till about the year 1 1 30, when a copy of 
 the digests was found at Amalfi, in Italy ; which accident, con- 
 curring with the policy of the Roman ecclesiastics, suddenly gave 
 new vogue and authority to the civil law, introduced it into seve- 
 ral nations, and *occasioned that mighty inundation of vol- [*82 
 uminous comments, with which this system of law, nore than any 
 other, is now loaded. 
 
 The canon law is a body of Roman ecclesiastical law, relative 
 
OF THE LA WS 
 
 to such matters as that church either has, or pretends to have, 
 the proper jurisdiction over. This is compiled from the opinions 
 of the ancient Latin fathers, the decrees of general councils, and 
 the decretal epistles and bulls of the holy see ; all of which lay 
 in the same disorder and confusion as the lloman civil law, till, 
 about the year 1151, one Gratian, an Italian monk, animated by 
 the discovery of Justinian's pandects, reduced the ecclesiastical 
 constitutions also into some method, in three books, which he 
 entitled Concordia Discordantium Canonum, but which are gener- 
 ally known by the name of Decretum Gratiani. These reached 
 as low as the time of Pope Alexander III. The subsequent 
 papal decrees, to the pontificate of Gregory IX., were published 
 in much the same method, under the auspices of that pope, about 
 the year 1230, in five books, entitled Decretalia Gregorii Noni. , 
 A sixth book was added by Boniface VIII. about the year 1298, 
 which is called Sextus Decretalium. The Clementine constitu- 
 tions, or decrees of Clement V. were in like manner authenti- 
 cated in 1317, by his successor, John XXII., who also published 
 twenty constitutions of his own, called the Extravagantes Joannis, 
 all of which in some measure answer to the novels of the civil 
 law. To these have been since added some decrees of later 
 popes, in five books, called Extravagantes Communes ; and all 
 these together, Gratian's decree, Gregory's decretals, the sixth 
 decretal, the Clementine constitutions, and the extravagants of 
 John and his successors, form the corpus juris canonici, or body 
 of the Roman canon law. 
 
 Besides these 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 natural canon 
 law, composed of legatine and provincial constitutions, and adapt- 
 *83] ed only to the exigencies of this church * and kingdom. 
 The legatine 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 
 reign of King Henry III. about the years 1220 and 1268. The 
 /"wz/iWw/ constitutions are principally the decrees of provincial 
 synods, held under divers archbishops of Canterbury, from Ste- 
 phen Langton, in the reign of Henry III., to Henry Chichele, 
 in the reign of Henry V. ; and adopted also by the province of 
 York in the reign of Henry VI At the dawn of the re forma- 
 
OF ENGLAND. 49 
 
 tion, in the reign of King Henry VIII., it was enacted in pariia- 
 ment that a review should be had of the canon law ; and, till 
 such review should be made, all canons, constitutions, ordinances, 
 and synodals provincial, being then already made, and not repug- 
 nant to the law of the land or the king's prerogative, should still 
 be used and executed. And, as no such review has yet been per- 
 fected, upon this statute now depends the authority of the canon 
 law in England. 
 
 As for the canons enacted by the clergy under James I. in 
 the year 1603, and never confirmed in parliament, it has been 
 solemnly adjudged upon the principles of law and the constitu- 
 tion, that where they'are not merely declaratory 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 : i. 
 The courts of the archbishops and bishops, and their derivative 
 officers, usually called in our law courts Christian, ciirice Chris- 
 tianitatis, or the ecclesiastical courts. 2. The military courts. 
 3. The courts of admiralty. 4. The courts of the two universi- 
 ties. In all, their reception in general, and the different degrees 
 of that reception, are grounded entirely upon custom, corrobo- 
 rated in the latter instance by act of *parliament, ratifying [*84 
 those charters which confirm the customary law of the universi- 
 ties. The more minute consideration of these will fall properly 
 under that part of these commentaries which treats of the juris- 
 dictioij of courts. It will suffice at present to remark a few par- 
 ticulars relative to them all, which may serve to inculcate more 
 strongly the doctrine laid down concerning them. 
 
 1. And, first, the courts of common law have the superin- 
 tendency over these courts ; to keep them within their jurisdic- 
 tions, 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. 
 
 2. 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, 
 f these courts either refuse to allow these acts of pairliament, or 
 
 A 
 
50 
 
 OF THE LA WS 
 
 will expound them in any other sense than what the common 
 law puts upon them, the king's courts at Westminster will grant 
 prohibitions to restrain and control them. 
 
 3. An appeal lies from all these courts to the kiiig, 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 
 cases by custom in some courts, are only subordinate, and leges 
 sub graviori lege ; and that, thus admitted, restrained, altered, 
 new-modelled, and amended, they are by no means with us a dis- 
 tinct independent species of laws, but are inferior branches of 
 the customary or unwritten laws of England, properly called the 
 king's ecclesiastical, the king's military, the king's maritime, or 
 the king's academical laws. 
 
 *85] *Let us next proceed to the leges scriptoe, the written laws 
 of the kingdom which are statutes, acts, or edicts, made by the 
 king's majesty, by and with the advice and consent of the lords 
 spiritual and temporal, and commons in parliament assembled. 
 The oldest of these now extant, and printed in our statute books, 
 is the famous magna charta, as confirmed in parliament 9 Hen. 
 III. though doubtless there were many acts before that time, the 
 records of which are now lost, and the determinations of them 
 perhaps at present currently received for the maxims of the old 
 common law. 
 
 The manner of making these statutes will be better consid- 
 ered hereafter, when we examine the constitution of parliaments. 
 At present we will only take notice of the different kinds of 
 statutes, and of some general rules with regard to their construc- 
 tion (c). 
 
 (c) The method of citing these acts of parliament is various. Many of 
 our ancient statutes are called after the name of the place where the parlia- 
 ment was held that made them ; as the statutes of Merton and Marleberge, ' 
 of Westminster, Gloucester, and Winchester. Some are distinguished by 
 their initial words, as the statute of quia emptores, and that of circumspecte 
 agatis. But the most usual method of citing them, especially since the time 
 of Edward the Second, is by naming the year of the king's reign in which 
 the statute was made, together with the chapter, or particular act, according 
 to its numeral order, as 9 Geo. II. c. 4, for all the acts of one session of par- 
 liament taken t )gether make properly but one statute ; and therefore, when 
 
OF ENGLAND. 51 
 
 First, as to their several kinds. Statutes are either general 
 or special, public or private. A general or public act is an 
 •universal rule, that regards the whole community ; and of [*86 
 this the courts of law are bound to take notice judicially and 
 ex officio ; without the statute being particularly pleaded, or form- 
 ally set forth by the party who claims an advantage under it. 
 Special or private acts are rather exceptions than rules, being those 
 which only act on particular persons, and private concerns ; such 
 as the Romans entitled senatus decreta, in contradistinction to 
 the senatus consulta, which regarded the whole community ; and 
 of these (which are not promulgated with the same notoriety as 
 the former,) the judges are not bound to take notice, unless they 
 be formally shown and pleaded. Thus, to show the distinction, 
 the statute 13 Eliz. c. 10, to prevent spiritual persons from mak- 
 ing leases for longer terms than twenty-one years, or three lives, 
 is a public act ; it being a rule prescribed to the whole body of 
 spiritual persons in the nation : but an act to enable the bishop 
 of Chester to make a lease to A. B. for sixty years is an excep- 
 tion to this rule ; it concerns only the parties and the bishop's 
 successors ; and is therefore a private act. 
 
 Statutes also are either declaratory of the common law, or 
 remedial of some defects therein.' Declaratory, where the old 
 custom of the kingdom is almost fallen into disuse, or become 
 disputable ; in which case the parliament has thought proper, in 
 perpetuum rei testimonium, and for avoiding all doubts and diffi- 
 culties, to declare what the common law is and ever hath been. 
 Thus the statute of treasons, 25 Edw. III. cap. 2, doth not make 
 any new species of treasons, but only, for the benefit of the sub- 
 ject, declares and enumerates those several kinds of offence 
 which before were treason at the common law. Remedial stat- 
 utes are those which are made to supply such defects, and abridge 
 such superfluities, in the common law, as arise either from the 
 general imperfection of all human laws, from change of time 
 
 two sessions have been held in one year, we usually mention stat. i or 2. 
 Thus the bill of rights is cited as i W. and M. st. 2 c. 2, signifying that it is 
 the second chapter or act of the second statute, or the laws made in the 
 second session of parliament, in the first year of King William and Queen 
 Mary. 
 
 ' This division is generally expressed by declaratory statutes, and statutes 
 Introductory of a new law. Remedial statutes are generally mentioned in 
 contradistinction to penal statutes. (Christian. See note. 14, p. 55.) 
 
52 OF THE LA WS 
 
 and circumstances, from the mistakes and unadvised deter 
 minations of unlearned (or even learned) judges, or from any 
 other cause whatsoever. And this being done, either by enlarg- 
 ing the common law where it was too narrow and circumscribed, 
 *87] or by restraining it *where it was too lax and luxuriant, 
 hath occasioned another subordinate division of remedial acts of 
 parliament into enlarging and restraining statutes. To instance 
 again in the case of treason : clipping the current coin of the 
 kingdom was an offence not sufficiently guarded against by the 
 common law ; therefore it was thought expedient, by statute 5 
 Eliz. c. 1 1, to make it high treason, which it was not at the com- 
 mon law : so that this was an enlarging statute.' At common 
 law also spiritual corporations might lease out their estates for 
 ■any term of years, till prevented by the statute 1 3 Eliz. before 
 mentioned : this was, therefore, a restraining statute. 
 
 Secondly, the rules to be observed with regard to the con- 
 struction of statutes are principally these which follow.* 
 
 I. There are three points to be considered in the construction 
 of all remedial statutes ; the old law, the mischief, and the reme- 
 dy : that is, how the common law stood at the making of the act ; 
 what the mischief was, for which the common law did not pro- 
 vide ; and what remedy the parliament hath provided to cure 
 
 8 This statute against clipping hardly corresponds with the general notion 
 either of a remedial or an enlarging statute. In ordinary legal language, 
 remedial statutes are contradistinguished to penal statutes. An enlarging or 
 enabling statute is one which increases, not restrains, the power of action, 
 as the 32 Henry VIII. ch. 28, which gave bishops and all other sole ecclesi- 
 astical corporations, except parsons and vicars, a power of making leases, 
 which they did not possess before, is always called an enabling statute. 
 The 13 Eliz. ch. 10, which afterwards limited that power, is on the contrary, 
 styled a restraining or disabling statute. (Christian.) 
 
 8 "A distinction has been drawn between interpretation and construction. 
 The former word has been taken to mean the sense of the writer as included 
 within his language. The great object of interpretation is to ascertain the 
 meaning of a writing, or, in technical phrase, ' of a text.' This is not to be 
 obtained by conjecture, but only by the application of settled rules. Construc- 
 tion on the other hand, would embrace the inquiry whether topics that were 
 not expressed in the writing were not included within the general intent of 
 the author, or, as is sometimes said, within the ' spirit ' of the text ; so, in 
 some instances, the law forbids the exact accomplishment of the author's 
 intent. It then becomes important to know whether the intent shall be 
 carried out, though not precisely, yet as nearly as the law will permit. This 
 is called the cypres doctrine, or the doctrine of approximation." (DwiGHT.) 
 
OF ENGLAND. 53 
 
 this mischief. And it is the business of the judges so to con- 
 strue the act as to suppress the mischief and advance the reme- 
 dy. Let us instance again in the same restraining statute of 1 3 
 Eliz. c. 10: By the common law, ecclesiastical corporations might 
 let as long leases as they thought proper : the mischief was, that 
 they let long and unreasonable leases, to the impoverishment of 
 their successors; the remedy applied by the statute was by 
 making void all leases by ecclesiastical bodies for longer terms 
 than three lives, or twenty-one years. Now, in the construction 
 of this statute, it is held, that leases, though for a longer term, if 
 made by a bishop, are not void during the bishop's continuance 
 in his see ; or, if made by a dean and chapter, they are not void 
 during the continuance of the dean ; for the act was made for 
 the benefit and protection of the successor. The mischief is 
 therefore sufficiently suppressed by vacating them after the de- 
 termination of the intei^bst of the *grantors ; but the leases, [*88 
 during their continuance, being not within the mischief, are not 
 within the remedy.^" 
 
 2. A statute, which treats of things or persons of an inferior 
 rank, cannot by any general words be extended to those of a su- 
 perior. So a statute, treating of " deans, prebendaries, parsons, 
 vicars, and others having spiritual promotion" is held not to ex- 
 
 w « It Is an established rule, in giving construction to a statute, first to ascer- 
 tain its intent. This may be determined, not only from the language of a 
 part, but from the language of the whole and every part of the statute ; and 
 the real intention, when accurately ascertained, will always prevail over the 
 literal sense. The intention of the law-maker is sometimes to be collected 
 from the cause or necessity of making the statute ; and, however the intent 
 may be ascertained, it should be followed with reason and discretion, though 
 such construction may seem contrary to the letter of the statute : for it is the 
 intent which often gives meaning to words otherwise obscure and doubtful. 
 A thing which is within the intention of the makers of a statute is as much 
 within the statute as if it were within the letter; andathin^ which is within the 
 letter of the statute is not within the statute, unless it be within the intention of 
 the makers ; and such construction ought to be put upon it as does not 
 suffer it to be eluded." (J-folmes v. Carley, 31 N. Y. 289.) 
 
 As an old writer quaintly expresses it, " It is not the words of the law, 
 but the internal sense of it that makes the law, and our law (like all oihers) 
 consists of two parts, viz., of body an^ soul; the letter of the law is the body 
 ot the law, and the sense and reason of the law is the soul of the law." (a 
 Plowden Rep. 465.) 
 
 An excellent illustration of this rule is found in Pierson v. People, 79 N. Y. 
 424; Oates V. Nat. Bk., 100 U. S. 239. 
 
54 OF THE LA WS 
 
 tend to bishops, though they have spiritual promotion, deans 
 being the highest persons named, and bishops being of a still 
 higher order. 
 
 3. Penal statutes must be construed strictly." Thus the 
 statute I Edw. VI. c. 12, having enacted that those who are con- 
 victed of stealing horses should not have the benefit of clergy, 
 the judges conceived that this should not extend to him that 
 should steal but one korse, and therefore procured a new act for 
 that purpose in the following year." And, to come nearer our 
 own times, by the statute 14 Geo. II. c. 6, stealing sheep, or other 
 cattle, was made felony, without benefit of clergy. But these 
 general words, " or other cattle," being looked upon as much too 
 loose to create a capital offence, the act was held to extend to 
 nothing but mere sheep. And therefore, in the next sessions, 
 it was found necessary to make another statute, 15 Geo. II. c. 
 34, extending the former to bulls, cows, oxen, steers, bullocks, 
 heifers, calves, and lambs, by name." 
 
 11 A penal statute is one which imposes a penalty or forfeiture for violating 
 or transgressing the provisions contained therein. 
 
 " To interpret a statute strictly, is to adhere precisely to the words or 
 letter of the law, which include, of course, fewer particulars than a freer con- 
 struction. To interpret it liberally, largely or comprehensively, is to carry 
 the meaning of the law-giver into more complete effect than a confined inter- 
 pretation would allow. It may be termed the rational interpretation." (Kent's 
 Comm. i. 465, n.) 
 
 " [It has since been decided that where statutes use the plural number, a 
 single instance will be comprehended. The 2 Geo. II., ch. 25, enacts that 
 it shall be felony to steal any bank notes ; and it has been determined, that 
 the offence is complete by stealing one bank note.] (See Woodford v. People, 
 62N. Y. 117.) 
 
 1' See Decaitir Bk. v. St. Louis Bk., 21 Wall. 294. Thus a statute sub- 
 jecting an officer of a corporation to personal liability for debts of the cor- 
 poration, because of neglect of duty, is penal in its character and must be 
 strictly construed. {Steam Engine Co. v. Hubbard, loi U. S. 188.) And in 
 an action to recover a statutory penalty for usury, or to enforce a forfeiture, 
 the same rule is applied. {Tiffany v. Nat. Bk., 18 Wall. 409.) 
 
 So statutes authorizing arrest and imprisonment for debt, although remedial 
 to the extent that they are designed to coerce payment, are also regarded as 
 penal, and are not to be extended by construction so as to embrace cases not 
 clearly within them. Thus where a statute authorizes an arrest in cases oi fraud 
 in contracting a debt, it applies only to actual, personal fraud, and does not in- 
 clude merely legal or constructive fraud. {Hathaway v. Johnson, 55 N. Y. 93.) 
 
 There are also important classes of cases in which strict construction is 
 required, though the statutes are not penal. Thus where lands are taken 
 
OF ENGLAND. 55 
 
 4. Statutes against frauds " are to be liberally and beneficially 
 expounded. This may seem a contradiction to the last rule ; 
 most statutes against frauds being in their consequences penal. 
 But this difference is here to be taken : where the statute acts 
 apon the offender, and inflicts a penalty, as the pillory or a fine, 
 it is then to be taken strictly ; but when the statute acts upon 
 the offence, by setting aside the fraudulent transaction- here it is 
 to be construed liberally. Upon this footing the statute of 13 
 Eliz. c. S, which avoids all gifts of goods, &c. made to defraud 
 creditors and others., was *held to extend by the general [*89 
 words to a gift made to defraud the queen of a forfeiture. 
 
 5. One part of a statute must be so construed by another, 
 that the whole may (if possible) stand : ut res magis valeat, quant 
 pereaty" As if land be vested in the king and his heirs by act 
 
 under a statute for public purposes, in derogation of common law right, this 
 is the rule, and every requisite of the statute having a semblance of benefit 
 to the owner must be complied with. (In re Water Commrs., 96 N. Y. 351.) 
 So conditions in deeds and wills are strictly construed. (58 Me. 73.) 
 
 The same is true of statutes which tend to work a public mischief; or 
 which are intended to deprive creditors of a remedy for the recovery of their 
 debts, and of many other similar cases. (See Smith v. People, 47 N. Y. 330 ; 
 Suiters V. Tobias, 3 Paige, 338 ; Yazoo R. Co. v. Thomas, 132 U. S. 174.) 
 
 " These are included within the class of remedial statutes, which are stat- 
 utes giving a remedy for the protection or enforcement of a right, or for the 
 redress of an injury, or enlarging or extending a remedy already existing. 
 And it is a general rule that while penal statutes are to be construed strictly, 
 remedial statutes are to be construed liberally, with a view to , the beneficial 
 ends proposed. {Hudler v. Golden, 36 N. Y. 446; Weed\. Tucker, 19 N. Y. 
 433; Boydv. U. S., n6 U. S. 6i6.) 
 
 " The same statute may be penal in one aspect, and remedial in another. 
 And therefore, it has been held that the same words in a statute will bear 
 different interpretations, according to the nature of the suit or prosecution 
 instituted upon them. As by the 9 Anne, ch. 14, the statute against gaming, 
 if any person shall lose at any time or sitting £10, and shall pay it to the 
 winner, he may recover it back within three months ; and if the loser does 
 not witliin that time, any other person may sue for it, and treble the value 
 besides. So, where an action was brought to recover back fourteen guineas, 
 which had been won and paid after a continuance at play, except an inter- 
 ruption during dinner, the court held the statute was remedial so far as it 
 prevented the effects of gaming, without inflicting a penalty; and therefore, 
 in this action, they considered it one time or sitting; but they said if an 
 action had been brought for the penalty, they would have construed it strictly 
 in favor of the defendant, and would have held that the money had been lost 
 i.X two sittings. (2 Bl. Rep. 1226.)" (Christian.) 
 
 " So when there is an apparent inconsistency between two statutes, such 
 
S6 OF THE LA WS 
 
 of parliament, saving the right of A., and A. has at that time a 
 lease of it for three years : here A. shall hold it for his term of 
 three years, and afterwards it shall go to the king. For this in- 
 terpretation furnishes matter for every clause of the statute to 
 work and operate upon. But, 
 
 6. A saving, totally repugnant to the body of the act, is void. 
 If, therefore, an act of parliament vests land in the king and his 
 heirs, saving the right of all persons whatsoever ; or vests the land 
 of A. in the king, saving the right of A. ; in either of these cases 
 the saving is totally repugnant to the body of the statute, and, if 
 good, would render the statute of no effect or operation ; and 
 therefore the saving is void, and the land vests absolutely in the 
 king." 
 
 7. Where the common law and a statute differ, the common 
 law gives place to the statute; and an old statute gives place to 
 a new one." And this upon a general principle of universal law, 
 that " leges posteriores priores contrarias abrogant : " consonant 
 to which it was laid down by a law of the twelve tables at Rome, 
 that " quod populus postremuni jussit, id jus ratum esto" But 
 this is to be understood, only when the latter statute is couched 
 in negative terms, or where its matter is ' so clearly repugnant, 
 that it necessarily implies a negative. As if a former act says, 
 that a juror upon such a trial shall have twenty pounds a year; 
 and a new statute afterwards enacts, that he shall have twenty 
 marks : here the latter statute, though it does not express, yet 
 necessarily implies a negative, and virtually repeals the former. 
 
 exposition should be made as that if possible both may stand together. 
 (Chamberlain v. Chamberlain, 43 N. Y. 424; see 127 U. S. 406.) 
 
 *^ There is a distinction between the effect of a repugnant saving clause 
 and a repugnant proviso. A saving clause is only an exception of a special 
 thing out of the general things mentioned in the statutes, and if repugnant to 
 the purview, is void. But a proviso is used to qualify or restrain the general 
 provisions of an act, or to exclude any possible ground of interpretation as 
 extending to cases not intended by the legislature to be brought within its 
 purview. And if repugnant to the purview, it is not void, but stands as the 
 last expression of the legislature. (59 N. Y. 59 ; but see Kent's Comm. I. 463.) 
 
 " But the repeal of statutes by implication is not favored by the law ; and 
 when a later and a former statute can stand together, both will stand unless 
 the former is expressly repealed, or the inconsistency and repugnancy of the 
 two statutes are plain and unavoidable. In case of such repugnancy, the later 
 act stands as the last expression of the legislative will. {People v. Palmer, 
 52 N. Y. 83 ; /n re Washrngton R. Co., 1 15 N. Y. 442 ; Chew Heonz v. U. S., 
 112U. 8.536.) 
 
OF ENGLAND. S; 
 
 For if twenty marks be made qualification sufficient, the former 
 statute which requires twenty pounds is at an end. But, if both 
 acts be merely affirmative, *and the substance such that [*90 
 both may stand together, here the latter does not repeal the for- 
 mer, but they shall both have a concurrent efficacy. If by a 
 former law an offence be indictable at the quarter-sessions, and 
 a latter law makes the same offence indictable at the assizes ; 
 here the jurisdiction of the sessions is not taken away, but both 
 have a concurrent jurisdiction, and the offender may be prosecu- 
 ted at either : unless the new statute subjoins express negative 
 woVds, as, that the offence shall be indictable at the assizes, and 
 not elsewhere}^ • 
 
 8. If a statute, that repeals another, is itself repealed after- 
 wards, the first statute is hereby revived, without any formal 
 words for that purpose." So when the statutes of 26 and 35 
 Hen. VIII., declaring the king to be the supreme head of the 
 church, were repealed by a statute i and 2 Philip and Mary, and 
 this latter statute was afterwards repealed by an act of i Eliz. 
 there needed not any express words of revival in Queen Eliza- 
 1' It is an important rule that where a statute imposing a penalty is repealed, 
 all actions or proceedings founded upon that statute must forthwith be dis- 
 continued, and the penalty cannot be imposed, although the offence or injury 
 was committed while the statute was still in force. Thus, if a murder had 
 been committed, and before the trial of the person charged with the crime, 
 or during the progress of the trial, or even after conviction but before judg- 
 ment, the murder law was repealed without any provision for existing causes 
 of action or prosecution, no punishment could be inflicted. To avoid the 
 operation of this rule, it is often provided in repealing or modifying statutes, 
 that " nothing herein contained shall affect any action or proceeding now 
 pending." (See Hartung v. People, 22 N. Y. 95 ; Mongeon v. People, 55 
 N. Y. 613 ; U. S. V. Tyneti, 11 Wall. 88.) 
 
 It is specially provided in the U. S. Statutes that " the repeal of any 
 statute shall not have the effect to release or extinguish any penalty, for- 
 feiture, or liability, incurred under such statute, unless the repealing act 
 shall so expressly provide, and such statute shall be treated as still remain- 
 ing in force for the purpose of sustaining any proper action for the enforce- 
 ment of such penalty, forfeiture, or liability." (U. S. Rev. Statutes, p. 2.) 
 
 '' To avoid the effect of this rule, it is provided by the U. S. Statutes that 
 " Whenever an act is repealed, which repealed a former act, such former act 
 shall not thereby be revived, unless it shall be expressly so provided." 
 (U. S. Rev. Stat. p. 2.) A similar statute has been passed in England, and 
 in a number of the American States. In those States where there is no such 
 statute, it is common to insert a clause of similar purport in the statute 
 repealing the former repeal. (See U. S. v. Philbriek, 120 U. S. 12.) 
 
58 OF THE LA WS 
 
 beth's statute, but these acts of King Henry were impliedly and 
 virtually revived. 
 
 9. Acts of parliament derogatory from the power of subse- 
 quent parliaments bind not.^" So the statute 11 Hen. VH. c. i, 
 which directs that no person for assisting a king de facto shall be 
 attainted of treason by act of parliament or otherwise, is held to 
 be good only as to common prosecutions for high treason ; but 
 will not restrain or clog any parliamentary attainder. Because 
 the legislature, being in truth the sovereign power, is always of 
 equal, always of absolute authority: it acknowledges no superior 
 upon earth, which the prior legislature must have been, if its Or- 
 dinances could bind a subsequent parliament. And upon the 
 same principle, Cicero, in his letters to Atticus, treats with a 
 proper contempt these restraining clauses, which endeavor to 
 tie up the hands of succeeding legislatures. "When you repeal 
 *91] the *law itself, (says he,) you at the same time repeal the 
 prohibitory clause, which guards against such repeal." 
 
 10. Lastly, acts of parliament that are impossible, to be per- 
 formed are of no validity : and if there arise out of them collater- 
 ally any absurd consequences, manifestly contradictory to com- 
 mon reason, they are, with regard to these collateral consequences, 
 void. I lay down the rule with those restrictions ; though I 
 know it is generally laid down more largely, that acts of parlia- 
 ment contrary to reason are void. But if the parliament will 
 positively enact a thing to be done which is unreasonable, I know 
 of no power in the ordinary forms of the constitution that is 
 vested with authority to control it ; '"■ and the examples usually 
 
 20 A provision inserted in a statute that the statute should not be repealed, 
 would not be binding upon subsequent legislatures. Legislation cannot in 
 this way be rendered irrepealable. Nor can one legislature declare in 
 advance the intent of subsequent legislatures, or the effect of subsequent 
 legislation upon' existing statutes, (ui N. Y. 140; 55 N. Y. 613.) But in 
 the United States, legislation is, in some classes of cases, irrepealable, because 
 Constitutional provisions prohibit such repeal. Thus, under the U. S. Con- 
 stitution, no State can pass any law impairing the obligation of contracts ; so 
 that a statute in the nature of a contract would not be subject to repeal, and 
 rights and privileges conferred by it could not be divested. (See Dartmouth 
 College Case, 4 Wheaton, 518; 115 U. S. 650; %tt post, p. 189, note 3.) 
 
 '1 In like manner, it is generally held in the United States, that a statute 
 can only be declared void so far as it is in conflict with the Constitution of 
 the State or of the United States, but not because it is opposed to principles 
 of natural justice and reason. " It is not for the judiciary or the executive 
 
OF ENGLAND. 59 
 
 alleged in support of this sense of the rule do none of them 
 prove, that, where the main object of a statute is unreasonable, 
 the judges are at liberty to reject it; for tnat were to set the ju- 
 dicial power above that of the legislature, which would be sub- 
 versive of all government. But where some collateral matter 
 arises out of the general words, and happens to be unreasonable, 
 there the judges are in decency to conclude that this consequence 
 was not foreseen by the parliament, and therefore they are at 
 liberty to expound the statute by equity, and only quoad hoc dis- 
 regard it. Thus if an act of parliament gives a man power to 
 try all causes, that arise within his manor of Dale ; yet, if a cause 
 should arise in whioh he himself is party, the act is construed 
 not to extend to that, because it is unreasonable that any man 
 should determine his own quarrel. But, if we could conceive it 
 possible for the parliament to enact, that he should try as well 
 his own cause as those of other persons, there is no court that 
 has power to defeat the intent of the legislature, when couched 
 in such evident and express words, as leave no doubt whether it 
 was the intent of the legislature or no. 
 
 These are the several grounds of the laws of England : over 
 and above which, equity is also frequently called in to *as- [*92 
 sist, to moderate and to explain them. What equity is, and how 
 impossible in its very essence to be reduced to stated rules, hath 
 been shown in the preceding section. I shall therefore only 
 add, that besides the liberality of sentiment with which our com- 
 mon law judges interpret acts of parliament, and such rules of 
 the unwritten law as are not of a positive kind, there are also 
 peculiar courts of equity established for the benefit of the sub- 
 ject ; to detect latent frauds and concealments, which the process 
 of the courts of law is not adapted to reach; to enforce the exe- 
 cution of such matters of trust and confidence, as are binding in 
 conscience, though not cognizable in a court of law ; to deliver 
 from such dangers as are owing to misfortune or oversight ; and 
 to give a more specific relief, and more adapted to the circum- 
 stances of the case, than can always be obtained by the generality 
 
 Department to inquire whether the legislature has violated the genius of the 
 government, or the general principles of liberty and the rights of man, or 
 whether acts are wise or expedient or not ; but only whether it has tran- 
 scended the limits prescribed for it by the Constitution." (Per Caruthers, J., 
 quoted 52 Penn. St. 478 ; see Wynehamer v. People, 13 N. Y. 390, 453, 476; 
 Coolefs Const. Limitations, 205-211 [Jth ed.].)' Still a construction of a 
 
6o OF THE LA WS OF ENGLAND. 
 
 of the rules of the positive or common law. This is the busincia 
 of our courts of equity, which however are only conversant in 
 matters of property. For the freedom of our constitution will 
 not permit, that in criminal cases a power should be lodged in 
 any judge, to construe the law otherwise than according to the 
 letter. This caution, while it admirably protects the public lib- 
 erty, can never bear hard upon individuals. A man cannot suffer 
 more punishment than the law assigns, but he may suffer less. 
 The laws cannot be strained by partiality to inflict a penalty 
 beyond what the letter will warrant ; but, in cases where the 
 letter induces any apparent hardship, the crown has the power 
 to pardon. 
 
 statute which would lead to absurd or unjust consequences must always be 
 avoided if possible, since such an intention is not to be attributed to the 
 legislature. {People v. Commrs. of Taxes, 95 N. Y. 554 ; U. S. v. Kirby, 7 
 Wall. 482.) So the courts will not declare a statute unconstitutional, unless it 
 be clearly so. {Munn v. Illinois, 94 U. S. 113.) 
 
COMMENTARIES 
 ON THE LAWS OF ENGLAND. 
 
 BOOK THE FIRST. 
 OF THE RIGHTS OF PERSONS. 
 
 CHAPTER I. 
 
 [bL. COMM. BOOK I. CHAP. I.] 
 
 Of the Absolute Rights of Individuals. 
 
 The objects of the laws of England are so very numerous 
 and extensive, that, in order to consider them with any tolerable 
 ease and perspicuity, it will be necessary to distribute them 
 methodically, under proper and distinct heads ; avoiding as much 
 as possible divisions too large and comprehensive on the one 
 hand, and too trifling and minute on the other ; both of which 
 are equally productive of confusion. 
 
 * Now, as municipal law is a rule of civil conduct, com- [*122 
 manding what is right, and prohibiting what is wrong ; or as 
 Cicero, and after him our Bracton, have expressed it, sanctio justa, 
 jubens honesta et prohibens contraria, it follows that the primary 
 and principal objects of the law are rights and wrongs. In the 
 prosecution, therefore, of these commentaries, I shall follow this 
 very simple and obvious division ; and shall, in the first place, 
 consider the rights that are commanded, and secondly the wrongi 
 that are forbidden, by the laws of England. 
 
 Rights are, however, liable to another subdivision ; being 
 either, first, those which concern and are annexed to the persons 
 of men, and are then called jura personamm, or the rights of per- 
 sons; or they are secondly, such as a man may acquire over ex- 
 ternal objects, or things unconnected with his person, which are 
 
•• 
 
 62 OF THE ABSOLUTE 
 
 styled 7Mnz rerum, or the rights of things. Wrongs also are divis. 
 ible into, first, private wrongs, which, being an infringement 
 merely of particular rights, concern individuals only, and are 
 called civil injuries; and secondly, public wrongs, which, being a 
 breach of general and public rights, affect the whole community, 
 and are called crimes and misdemeanors. 
 
 The objects of the laws of England falling into this fourfold 
 division, the present commentaries will therefore consist of the 
 four following parts : — i. The rights of persons, with the means 
 whereby such rights may be either acquired or lost. 2. The 
 rights of things, with the means also of acquiring and losing 
 them. 3. Private wrongs, or civil injuries ; with the means of 
 redressing them by law. 4. Public wrongs, or crimes and mis- 
 demeanors ; with the means of prevention and punishment. 
 
 We are now first to consider the rights of persons, with the 
 means of acquiring and losing them. 
 
 123] *Now the rights of persons that are commanded to be ob- 
 served by the municipal law are of two sorts : first, such as are 
 dxi&frofn every citizen, which are usually called civil duties ; and, 
 secondly, such as belong to him, which is the more popular ac- 
 ceptation of rights or jura. Both may indeed be comprised in 
 this latter division ; for, as all social duties are of a relative na- 
 ture, at the same time that they are Awtfrom one man, or set of 
 men, they must also be due to another. But I apprehend it will 
 be more clear and easy to consider many of them as duties re- 
 quired from, rather than as rights belonging to, particular per- 
 sons. Thus, for instance, allegiance is usually, and therefore 
 most easily, considered as the duty of the people, and protection 
 as the duty of the magistrate ; and yet they are reciprocally the 
 rights as well as duties of each other. Allegiance is the right of 
 the magistrate, and protection the right of the people. 
 
 Persons also are divided by the law into either natural per- 
 sons, or artificial. Natural persons are such as the God of nature 
 formed us ; artificial are such as are created and devised by 
 human laws for the purposes of society and government, which 
 are called corporaitions or bodies politic. 
 
 The ri ghts of persons considered in their natural raj TarHTPs 
 ^re also of two sorts, a bsolute and relative. Absolute, which are 
 such as appertain an3~Bel'ang topaFticular men, merely as indi- 
 viduals or single persons ; relative, which are incident to them as 
 
RIGHTS OF INDIVIDUALS. 63 
 
 rricmbers of society, and standing in various relations to each 
 other. The first, that is, absolute rights, will be the subject of 
 the present chapter. 
 
 By the absolute rights of individuals, we mean those which 
 are so in their primary and strictest sense ; such as would belong 
 to their persons merely in a state of nature, and which every man 
 is entitled to enjoy, whether out of society or in it. But with re- 
 gard to the absolute duties, which man is bound * to per- [*124 
 form considered as a mere individual, it is not to be expected that 
 any human municipal law should at all explain or enforce them. 
 For the end and intent of such laws being only to regulate the 
 behavior of mankiitd, as they are members of society, and stand 
 in various relations to each other, they have consequently no 
 concern with any other but social or relative duties. Let a man 
 therefore be ever so abandoned in his principles, or vicious in his 
 practice, provided he keeps his wickedness to himself, and does 
 not offend against the rules of public decency, he is out of the 
 reach of human laws. But if he makes his vices public, though 
 they be such as seem principally to affect himself, (as drunken- 
 ness, or the like,) they then become, by the bad example they set, 
 of pernicious effects to society ; and therefore it is then the busi- 
 ness of human laws to correct them. Here the circumstance of 
 publication is what alters the nature of the case. Public sobriety 
 is a relative duty and therefore enjoined by our laws; private so- 
 briety is an absolute duty, which, whether it be performed or not, 
 human tribunals can never know ; and therefore they can never 
 enforce it by any civil sanction. But, with respect to rights, the 
 case is different. Human laws define and enforce as well those 
 rights which belong to a man considered as an individual, as 
 those which belong to Myxn considered as related to others. 
 
 For the principal aim of society is to protect individuals in 
 the enjoyment of those absolute rights, which were vested in 
 them by the immutable laws of nature ; but which could not be 
 preserved in peace without that mutual assistance and inter- 
 course, which is gained by the institution of friendly and social 
 communities. Hence it follows, that the first and primary end 
 of human laws is to maintain and regulate these absolute rights 
 of individuals. Such rights as are social and relative result 
 from, and are posterior to, the formation of states and societies, 
 so that to maintain and regulate these, is clearly a subsequenl 
 
64 OF THE ABSOLUTE 
 
 consideration. And tlierefore the principal view of human laws 
 is, or ought always to be, to explain, protect, and enforce such rights 
 * 125] as are absolute, which in* themselves are few and simple : 
 and then such rights as are relative, which, arising from a variety 
 of connections, will be far more numerous and more compli- 
 cated. These will take up a greater space in any code of laws, 
 md hence may appear to be more attended to, though in reality 
 they are not, than the rights of the former kind. Let us there- 
 tore proceed to examine how far all laws ought, and how far the 
 laws of England actually do, take notice of these absolute rights, 
 and provide for their lasting security. 
 
 The absolute rights of man, considered as a free agent, en- 
 dowed with discernment to know good from evil, and with power 
 of choosing those measures which appear to him to be most de- 
 sirable, are usually summed up in one general appellation, and 
 denominated the natural liberty of mankind. This natural lib 
 erty consists properly in a power of acting as one thinks fit, 
 without any restraint or control, unless by the law of nature ; 
 being a right inherent in us by birth, and one of the gifts of 
 God to man at his creation, when he endued him with the faculty 
 of freewill. But every man, when he enters into society, gives 
 up a part of his natural liberty, as the price of so valuable a 
 purchase ; and, in consideration of receiving the advantages of 
 mutual commerce, obliges himself to conform to those laws, 
 which the community has thought proper to establish. And 
 this species of legal obedience and conformity is infinitely more 
 desirable than that wild and savage liberty which is sacrificed to 
 obtain it. For no man, that considers a moment, would wish to 
 retain the absolute and uncontrolled power of doing whatever 
 he pleases: the consequence of which is, that every other man 
 would also have the same power ; and then there would be no 
 security to individuals in any of the enjoyments of life. Politi- 
 cal therefore, or civil liberty, which is that of a member of 
 society, is no other than natural liberty, so far restrained by 
 human laws (and no farther) as is necessary and expedient for 
 the general advantage of the public. Hence we may collect 
 *126] that the law, which restrains a man from doing* mischief 
 to his fellow-citizens, though it diminishes the natural, increases 
 the civil liberty of mankind; but that every wanton and cause- 
 less restraint of the will of the subject, whether practised by a 
 
RIGHTS OF INDIVIDUALS. 65 
 
 monarch, a nobility, or a popular assembly, is a degree of 
 tyranny: nay, that even laws themselves, whether made with or 
 without our consent, if they regulate and constrain our conduct 
 in matters of mere indifference, without any good end in view, 
 are regulations destructive of liberty : whereas, if any public 
 advaQtag£_can arise from observing such precepts, the control of 
 our private inclinations, in one or two particular points, will con 
 duce to preserve our general freedom in others of more impor- 
 tance ; by supporting that state of society, which alone can se- 
 cure our independence. Thus the statute of King Edward IV., 
 which forbad the fine gentlemen of those times (under the de- 
 gree of a lord) to wear pikes upon their shoes or boots of more 
 than two inches in length, was a law that savored of oppres- 
 sion ; because, however ridiculous the fashion then in use might 
 appear, the restraining it by pecuniary penalties could serve 1:0 
 purpose of common utility. But the statute of King Charles II., 
 which prescribes a thing seemingly as indifferent, (a dress for 
 the dead, who are all ordered to be buried in woolen), is a law 
 consistent with public liberty ; for it encourages the staple trade, 
 on which in great measure depends the universal good of the 
 nation. So that laws, when prudently framed, are by no means 
 subversive, but rather introductive of liberty; for, as Mr. T.nrkp 
 has well oh.served.j vhere there is no law there is no freedo m. 
 But then, on the other hand, that constitution or frame of gov- 
 ernment, that system of laws, is alone calculated to maintain 
 civil liberty, which leaves the subject entire master of his own 
 conduct, except in those points wherein the public good requires 
 some direction or restraint. 
 
 The idea and practice of this political or civil liberty flourish 
 in their highest vigor in these kingdoms, where it falls* [*127 
 little short of perfection, and can only be lost or destroyed by 
 the folly or demerits of its owner : the legislature, and of course 
 the laws of England, being peculiarly adapted to the preserva 
 tion of this inestimable blessing even in the meanest subject. 
 Very different from the modern constitutions of other states, on 
 the continent of Europe, and from the genius of the imperial 
 law ; which in general are calculated to vest an arbitrary and 
 despotic power, of controlling the actions of the subject, in the 
 prince, or in a few grandees. And this spirit of liberty is so 
 deeply implanted in our constitution, and rooted even in our very 
 5 
 
66 OF THE ABSOLUTE 
 
 soil, that a slave or a negro, the moment he lands in England, 
 falls under the protection of the laws, and so far becomes a free, 
 man ; though the master's right to his services may possibly still 
 continue. 
 
 The absolute rights of every Englishman, (which, taken in a 
 political and extensive sense, are usually called their liberties,) 
 as they are founded on nature and reason, so they are coeval 
 with our form of government; though subject at times to fluc- 
 tuate and change : their establishment, excellent as it is, being 
 still human. At some times we have seen them depressed by 
 overbearing and tyrannical princes; at others so luxuriant as 
 even to tend to anarchy, a worse state than tyranny itself, as any 
 government is better than none at all. But the vigor of our 
 free constitution has always delivered the nation from these em- 
 barrassments : and, as soon as the convulsions consequent on the 
 struggle have been over, the balance of our rights and liberties 
 has settled to its proper level ; and their fundamental articles 
 have been from time to time asserted in parliament, as often as 
 they were thought to be in danger. 
 
 First, by the great charter of liberties, which was ob':ained, 
 sword in hand, from King John, and afterwards, with some alter- 
 ations, confirmed in parliament by King Henry the Third, his 
 son. Which charter contained very few new grants ; but, as Sir 
 Edward Coke observes, was for the most part declaratory of the 
 *128] principal grounds of the fundamental *laws of England.* 
 Afterwards by the statute called confirmatio caftarum, whereby 
 the great charter is directed to be allowed as the common law ; 
 all judgments contrary to it are declared void ; copies of it are 
 ordered to be sent to all cathedral churches, and read twice a-year 
 
 1 Magna Charta contained a large variety of provisions calculated to re- 
 dress numerous grievances, which at that time bore oppressively upon the 
 people, but the provision which is of chief importance on constitutional 
 grounds is that which guaranteed the protection of life, liberty, and property, 
 against arbitrary interference and spoliation, and secured the observance oi 
 due legal methods of procedure in proceedings against the citizen. It is 
 declared that "no freeman shall be taken, or imprisoned, or disseized, t. 
 outlawed, or exiled, or in any manner injured, nor will we proceed against 
 him, nor send against him, unless by the lawful judgment of his peers or 
 by the law of the land." From this is derived the provision in the U. S, 
 Constitution, that " no person shall be deprived of life, liberty, or property, 
 without due process of law :" similar provisions have been embodied in the 
 Constitutions of the various States. 
 
RIGHTS OF INDIVIDUALS. 67 
 
 lo the people ; and sentence of excommunication is directed to be 
 as constantly denounced against all those that, by word, deed, or 
 counsel, act contrary thereto, or in any degree infringe it. Next, 
 by a multitude of subsequent corroborating statutes (Sir Edward 
 Coke, I think, reckons thirty-two), from the first Edward to 
 Henry the Fourth. Then, after a long interval, by thepftition of 
 right; which was a parliamentary declaration of the liberties 
 of the people, assented to by King Charles the First in the be- 
 ginning of his reign.'' Which was closely followed by the still 
 more ample concessions made by that unhappy prince to his par- 
 liament before the fatal rupture between them ; and by the many 
 salutary laws, particularly the habeas corpus act, passed under 
 Charles the Second. To these succeeded the bill of rights., or 
 declaration delivered by the lords and commons to the Prince 
 and Princess of Orange, 13th of February, 1688 ; and afterwards 
 enacted in parliament, when they became king and queen ; which 
 declaration concludes in these remarkable words : " and they do 
 claim, demand and insist upon, all and singular the premises, as 
 their undoubted rights and liberties." And the act of parliament 
 itself recognizes " all and singular the rights and liberties asserted 
 and claimed in the said declaration to be the true, ancient and 
 indubitable rights of the people of this kingdom.'" Lastly, 
 
 ^The Petition of Right was in the main a redeclaration and reassertion of 
 rights and privileges already established and guaranteed, and contained also 
 provisions for the redress of grievances which had grown up since the adop- 
 tion of Magna Charta and the various confirmatory acts. One of the most 
 serious and burdensome of these grievances was the practice of quartering 
 soldiers upon the citizens in time of peace. The petition provides, among 
 other things, " that no man be compelled to make or yield any gift, loan, 
 benevolence, tax, or such like charge, without common consent by act of 
 Parliament ; that none be called upon to make answer for refusal to do so ; 
 that freemen be imprisoned or detained only by the law of the land, or by due 
 process of law, and not by tlie King's special command, without any charge ; 
 that persons be not compelled to receive soldiers and mariners into their 
 houses against the laws and customs of the realm, etc." From this is 
 borrowed the provision in the U. S. Constitution that " no soldier shall, in 
 time of peace, be quartered in any house without the consent of the owner, 
 nor in time of war, but in a manner to be prescribed by law." 
 
 'Among the most important provisions of the Bill of Rights are the fol- 
 lowing: It asserted the right of the subject to petition the king, maintained 
 the right of freedom of speech in Parliament, and the right of freedom in the 
 election of its members ; it declared that the maintenance of standing armies 
 without the consent of Parliament was illegal, and that the king had nc 
 
68 OF THE ABSOLUTE 
 
 these liberties were again asserted at the commencement of the 
 present century, in the act of settlement, whereby the crown was 
 limited to his present majesty's illustrious house : and sone new 
 provisions were added, at the same fortunate era, for better 
 securing our religion, laws, and liberties ; which the statute de- 
 clares to.be "the birthright of the people of England," according 
 to the ancient doctrine of the common law. ' 
 
 *129] * Thus much for the declaration of our rights and i 
 liberties. The rights themselves, thus defined by these several 
 statutes, consist in a number of private immunities ; which will ' 
 appear, from what has been premised, to be indeed no other, than 
 either that residuum of natural liberty, which is not required by 
 the laws of society to be sacrificed to public convenience ; or else 
 those civil privileges, which society hath engaged to provide, in 
 lieu of the natural liberties so given up by individuals. These 
 therefore were formerly, either by inheritance or purchase, the 
 rights of all mankind ; but, in most other countries of the world 
 being now more or less debased or destroyed, they at present may 
 
 _be said to remain, in a peculiar and emphatical manner, the rights 
 of the people of England. And these may be reduced to three 
 principal or primary articles ; the right of personal security, the 
 right of personal liberty, and the right of private property : be 
 
 "cause, as there is no other known method of compulsion, or of 
 abridging man's natural free will, but by an infringement or 
 diminution of one or other of these important rights, the preser- 
 vation of these, inviolate, may justly be said to include the 
 preservation of our civil immunities in their largest and mosi 
 extensive sense. 
 
 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. " -^~- 
 
 I. 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 the mother's womb. Fot 
 
 power of suspending or dispensing with laws ; it provided that excessive 
 bail should not be required, nor excessive fines imposed, nor cruel and 
 unusual punishments inflicted. The BUI of Rights is of much importanc« 
 in the study of American Constitutional history and jurisprudence since a 
 number of its provisions were copied literally into the U. S. Constitution 
 and have also been embodied in many of the State Constitutions. 
 
RIGHTS OF INDiV'IDUALS. C9 
 
 if a woman is quick with child, and by a potion or otherwise, 
 killeth it in her womb ; or if any one beat her, whereby the child 
 dieth in her body, and she is delivered of a dead child ; this, 
 though not murder, was by the ancient law homicide or man 
 slaughter. But the modern law doth not look *upon this [*130 
 offence in quite so atrocious a light, but merely as a heinous 
 misdemeanor. 
 
 An infant in ventre sa mere, 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 estate limited to its use, and to take afterwards by such limit- 
 ation, as if it were then actually born. And in this point the 
 civil law agrees with ours. 
 
 2. A man's limbs (by which for the present we only under- 
 stand 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 from external injuries in a state of nature. To these 
 therefore he has a natural inherent right ; and they cannot be 
 wantonly destroyed or disabled without a manifest breach of civil 
 libert)-. 
 
 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 homi- 
 cide 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. 
 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 apprehension 
 of losing his life, or even his limbs, in case of his non-compliance. 
 And the same is also a sufficient excuse for the commission of 
 many misdemeanors, as will appear in the fourth book. The 
 constraint a man is under in these circumstances is called in law 
 duress, from the Latin durities, which there are two * sorts : [*131 
 duress of imprisonment, where a man actually loses his liberty, 
 of which we shall presently speak ; and duress per minus, 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 
 
70 OF THE ABSOLUTE 
 
 of life, or else for fear of mayhem, or loss of limb. And this feat 
 must be upon sufficient reason ; " non," as Bracton expresses it. 
 "suspicio cujuslibet vani et meticulosi kominis, sed talis qui 
 possit cadere in virum constantem ; talis enim. debet esse meius, 
 qui in se contineat vitce pericuhim, aut corporis cruciatum." A 
 fear of 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 
 losing his life or limbs, agrees also with that maxim of the 
 civil law : ignoscitur ei qui_ sanguinem suum. qualiter qualiter 
 redeniptum voluit.* 
 
 * In order to constitute duress of imprisonment, there must be either an illegal 
 restraint of personal liberty, or illegal force or privation imposed upon a person 
 lawfully imprisoned, in order to extort from him some promise or contract. Though 
 the imprisonment be under regular and formal legal process, yet if it be sued out 
 maliciously and without probable cause, it will constitute duress. ( Watkins v. 
 Baird, 6 Mass. 506.) When a party is arrested without just cause, and from motives 
 vrhich the law does not sanction, any contract into which he may enter with the 
 authors of the wrong, to procure his liberation from restraint, is imputed to illegal 
 duress. The element of voluntary assent is wanting. ( Osborn v. Robbins, 36 N. Y. 
 365.) But if the imprisonment be lawful, an agreement voluntarily entered into in 
 order to obtain a release cannot be avoided. Duress per minas includes not only 
 the instances mentioned in the text — fear of loss of life, and of mayhem, or loss of 
 \\mh,h'cAa\s,o fear of illegal imprisonment. {Foskay v. Ferguson, c, Hill, 154.) But 
 a contract is not avoided by a menace of lawful imprisonment. {Dunham v. Gris- 
 wold, 100 N. Y. 224.) Nor is it duress to merely threaten one with a civil action or 
 criminal prosecution to redress what is believed to be a wrong. {Hilborn v. Buchanan, 
 78 Me. 482.) Duress to one's husband, wife, child, or parent is a ground of rehef as 
 well as duress to one's self. (82 N. Y. 399; 131 Mass. 51; 62 la. 42.) It is gen- 
 erally held, as Blackstone states, that threatened injury to property will not avoid a 
 contract, though some American cases are to the contrary. {Skeate v. Beale, 11 Ad. 
 & El. 983; Miller v. Miller, 68 Pa. St. 486.) It is, however, held that a payment 
 of money obtained by what is called " duress of goods " may be recovered back; at 
 where one refuses to deliver up another's goods unless the latter pays a sum of 
 money. (60 N. Y. 498; see 114 Mass. 364; iii U. S. 22,) It is important for the 
 person so paying to make protest, to show that the payment is not voluntary. (12 
 N. Y. 99; 132 U. S. 17.) A contract obtained by duress is not void, but voidable, 
 and may be confirmed by the party forced to enter into it. Courts of equity go 
 further than courts of law in avoiding contracts for this cause, and will generally 
 relieve a party from the obligation of a contract made by him when under the influ- 
 ence of extreme terror, or in great necessity, or distress, or apprehension, though not 
 amountmg to legal duress. {Eadiev. Slimmon, 26 N. Y. 9; see further 7 Wall ai?- 
 95 U. S. 210; 132 Mass. 164.) ' ' "" 
 
RIGHTS OF INDIVIDUALS. 71 
 
 The law not only regards life and member, and protects every 
 man in the enjoyment of them, but also furnishes him with every 
 thing necessary for their support. For there is no man so indi- 
 gent or wretched, but he may demand a supply sufficient for all 
 the necessities of life from the more opulent part of the commu- 
 nity, by means of the several statutes enacted for the relief of 
 the poor, of which in their proper places. A humane provision ; 
 yet, though dictated by the principles of society, discountenanced 
 by the Roman laws. For the edicts of the Emperor Constan- 
 tine, commanding the public to maintain the children of those 
 who were unable to provide for them, in order to prevent the 
 murder and exposure of infants, an institution founded on the 
 same principle as our foundling hospitals, though comprised in 
 the Theodosian code, were rejected in Justinian's collection. 
 
 * These rights, of life and member, can only be deter- [*132 
 mined 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 common law, or entered into religion ; that is, went into a 
 monastery, and Became there a monk professed : in which cases 
 he was absolutely dead in law, and his next heir should have his 
 estate. For such banished man was entirely cut off from society ; 
 and such a monk, upon his profession, renounced solemnly all 
 secular concerns : and besides, as the popish clergy claimed an 
 exemption from the duties of civil life and the commands of the 
 temporal magistrate, the genius of the English laws would not 
 suffer those persons to enjoy the benefits of society, who secluded 
 themselves from it, and refused to submit to its regulations. A 
 monk was therefore accounted civiliter mortuiis, and when he en- 
 tered in to religion might, like other dying men, make his testament 
 and executors ; or, if he made none, the ordinary might grant 
 administration 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 prin- 
 ciple been carried, that when one was bound in a bond to an 
 abbot and his successors, and afterwards made his executors, and 
 professed himself a monk of the same abbey, and in process of 
 time was himself made abbot thereof ; here the law gave him in 
 
72 OF THE ABSOLUTE 
 
 the capacity of abbot, an action of debt against his own executors 
 to recover the money due. In short, a monk or rehgious was so 
 effectually dead in law, that a lease made even to a third person, 
 during the life (generally) 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 
 *133] and to hold for the term of one's naturalYii&. 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 abolished : as is also the disability of 
 banishment, consequent upon abjuration, by statute 21 Jac. I. 
 
 C. 28.« 
 
 This natural life being, as was before observed, the immediate 
 dnnafinn nf the- orrpat Creato r, Cannot legally be disposed of or 
 destroyed by any individual, neithet ^v the person himsel f, nor 
 by any other of his fellow-creatures, merely upon their own 
 authority, yet nevertheless it may, by the divine permission, be 
 frequently forfeited for the breach of those laws of society, which 
 are enforced by the sanction of capital punishments ; of the na- 
 ture, restrictions, expedience, and legality of which, we may 
 hereafter more conveniently inquire in the concluding book of 
 these commentaries. At present, I shall only observe, that 
 whenever the constitution of a state vests in any man, or body of 
 men, a power of destroying at pleasure, without the direction of 
 laws, the lives or members of the subject, such constitution is in 
 the highest degree tyrannical ; and that, whenever any laws direct 
 such destruction for light and trivial causes, such laws are like- 
 wise tyrannical, though in an inferior degree ; because here the 
 subject is aware of the danger he is exposed to, and may, by 
 prudent caution, provide against it. The statute law of England 
 does therefore very seldom, and the common law does never, 
 inflict any punishment extending to life or limb, unless upon the 
 
 5 One important species of civil death formerly in England was where a man 
 was attainted, upon sentence to death for crime. (See posi, p. 1036. ) In New York it 
 =s provided by statute that a person sentenced to imprisonment in State prison for 
 Vife shall be thereafter deemed civilly dead, and that a sentence less than for life 
 suspends all the civil rights of the person so sentenced during the term of such 
 imprisonment. But this form of civil death does not divest the criminal of his rights 
 of property, nor can an administrator be appointed upon his estate. (Avery v. 
 Everett, no N. Y. 317; In re Zefh, 50 Hun, 523.) 
 
RIGHTS OF INDIVIDUALS. 73 
 
 highest necessity ; and the constitution is an utter stranger to 
 any arbitrary power of killing or maiming the subject without 
 the express warrant of law. " Nullus liber homo,'' says the gieat 
 charter, " aliquo modo destruatur, nisi per legale judicium parium 
 suorunt aut per legem terrm" Which words, " aliquo modo de- 
 struatur" according to Sir Edward Coke, includes a prohibition, 
 not only of killing and maiming, but also of torturing, (to which 
 our laws are strangers), and of every oppression by color of ^n 
 illegal authority. And it is enacted by the statute 5 Edw. III. 
 c. 9, that no man shall be forejudged of life or limb contrary to 
 the great charter and the *law of the land ; and again, by [*134 
 statute 28 Edw. III. c. 3, that no ^ man shall be put to death, 
 without being braught to_answer b y due p rocess of law. ^ 
 
 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 de- 
 struction of life or member. 
 
 4. 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 
 entitled, by reason and natural justice ; since, without these, it 
 is impossible to have the perfect enjoyment of any other advan- 
 tage or right. But these three last articles (being of much less 
 importance than those which have gone before, and those which 
 are yet to come), it will suffice to have barely mentioned among 
 the rights of persons : referring the more minute discussion of 
 their several branches to those parts of our commentaries which 
 treat of the infringement of these rights, under the head of per- 
 sonal wrongs. 
 
 II. Next to personal security, the law of England regards, 
 asserts, and preserves, the personal liberty of individuals. This 
 personal liberty consists in the power of locomotion, of changing 
 situation, or moving one's person to whatsoever place one's own 
 inclmation 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 
 
74 OF THE ABSOLUTE 
 
 it without sufficient cause ; and, that in this kingdom, it cannol 
 ever be abridged at the mere discretion of the magistrate, wiih< 
 out the expHcit permission of the laws. Here again the lan- 
 *135] guage 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.' And many subsequent old statutes 
 expressly direct, that no man shall 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. I. it is enacted, that no freeman shall be 
 imprisoned or detained without cause shown, to which he may 
 make answer according to law. By 16 Car. I. c. 10, if any per- 
 son be restrained of his liberty by order or decree of any illegal 
 court, or by command of the king's majesty in person, or by 
 warrant of the council board, or of any of the privy council, he 
 
 6 In the Constitutional law both of England and the United States, the 
 phrases " law of the land " and " due process of law " are deemed to have 
 the same signification and are employed interchangeably. Mr. Webster 
 gave the following definition in the Dartmouth College Case (4 Wheaton, 
 519) : " By the law of the land is most clearly intended the general law which 
 hears before it condemns ; which proceeds upon inquiry, and renders judg- 
 ment only after trial. The meaning is that every citizen shall hold his life, 
 liberty and property, under the protection of general rules which govern 
 society." (See also Taylor v. Potter, 4 Hill 140.) " The better definition of 
 due process of law is, that it means law in its regular cause of administra- 
 tion, through courts of justice." (2 Kent, Coram. 13.) These phrases do 
 not necessarily import trial by jury, since in equity proceedings juries are 
 unusual, and there are also certain summary modes of proceedings for inferior 
 offenses, as vagrancy, &c., or to enforce police regulations, which have been 
 employed and sanctioned from early times. " Though due process of law 
 generally implies and includes, plaintiff, defendant, regular allegations, 
 opportunity to answer, and a trial according to some settled judicial proceed 
 ings, yet this is not universally true. There may be, and we have seen that 
 there are, cases under the law of England after Magna Charta, and as it waa 
 brought to this country and acted on here, in which process, in its nature 
 final, issues against the body, lands and goods of certain public ofiicers 
 without any such trial." (Murray^ s Lessee v. Hoboken Land Co., 1 8 How. 
 U. S. 272.) But under the U. S. Constitution and the Constitutions of the 
 irarious States, which contain similar clauses, the introduction and establish- 
 ment of new forms of summary procedure, not in existence when such con- 
 stitutions were adopted, would not be regarded as compatible with this pro- 
 vision. (See Rockwell V. Nearing, 35 N. Y. 302 ; see also People v. Gilson, 
 J09 N. Y. 389; Dent v. West Va., 129 U. S. 114; Wynehamer v. People, 13 
 N. Y. 378 ; for further definitions of this phrase, see Pennoyer v. Afeff, 95 
 U. S. 714; Davidson v. New Orleans, 96 id. 97; Kilbourn v. Thompson, 103 
 id. 168, 182.) 
 
RIGHTS OF INDIVIDUALS. 7J 
 
 shall, upon demand of his counsel, have a writ of habeas corpus, 
 to bring his body before the court of king's benciroPcommon ' 
 pleas, who shall determine whether the cause of his commitment 
 be just, and thereupon do as to justice shall appertain. And by 
 31 Car. II. c. 2, commonly called the habeas corpus act, the 
 methods of obtaining this writ are so plainly pointed ou: and en- 
 forced, that, so long as this statute remains unimpeached, no 
 subject of England can be long detained in prison, except in 
 those cases in which the law requires and justifies such retainer.'' 
 And, lest this act should be evaded by demanding unreason- 
 able bail, or sureties- for the prisoner's appearance, it is declared 
 by I W. and M. st. 2, c. 2, that excessive bail ought not to be 
 required. 
 
 Of great importance to the public is the preservation of this 
 personal liberty ; for if once it were left in the power of any, the 
 highest, magistrate to imprison arbitrarily whomever he or his 
 officers thought proper, (as in France it is daily practised by the 
 crown), there would soon be an end of all other rights and im- 
 munities. Some have thought that unjust attacks, even upon 
 life or property, at the arbitrary will of the magistrate, *are [* i^. 3 
 less dangerous to the commonwealth than such as are made upon 
 the personal liberty of the subject. To bereave a man of life, 
 or by violence to confiscate his estate, without accusation or 
 trial, would be so gross and notorious an act of despotism, as 
 must at once convey the alarm of tyranny throughout the whole 
 kingdom ; but confinement of the person, by secretly hurrying 
 him to gaol, where his sufferings are unknown or forgotten, is a 
 less public, a less striking, and therefore a more dangerous engine 
 of arbitrary government. And yet sometimes, when the state is 
 in real danger, even this may be a necessary measure. But the 
 happiness of our constitution is, that it is not left to the execu- 
 tive power to determine when the danger of the state is so great 
 as to render this measure expedient ; for it is the parliament 
 only, or legislative power, that, whenever it sees proper, can au- 
 
 ' The English Habeas Corpus Act has been generally regnacted in the 
 United States with various modifications. The United States Constitution 
 provides that " the privilege of the writ of habeas corpus shall not be sus- 
 pended unless when, in cases of rebellion or invasion, the pablic safety may 
 require it." (Sect. 9, Art. i). Such a suspension occurred during the late 
 civil war. (See pp. 686-693, post.') 
 
76 OF THE ABSOLUTE , 
 
 thorize the crown, by su§p£]idmg_ _the habeas corf us Act foi a 
 short and limited time, to imprison suspected persons without 
 giving any reason for so doing ; as the senate of Rome was wont 
 to have recourse to a dictator, a magistrate of absolute authority, 
 when they judged the republic in any imminent danger. The 
 decree of the senate, which usually preceded the nomination of 
 this magistrate " dent operant consules, ne quid respublica detri- 
 menti capiat" was called the senatus consultuin ultimce necessitatis. 
 In hke manner this experiment ought only to be tried in cases 
 of extreme emergency ; and in these the nati on parts with its 
 llt)erl xfor a while, in order to preserve it ton s MerT 
 
 The confinement of the person, in any wise, is an imprison- 
 ment ; so that the keeping a jnan 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 
 discourages unlawful confinement, that if a man is under duress 
 of imptisonment, ^hich we before explained to mean a compid- 
 sion by an illegal restraint of liberty, until he seals a bond or the 
 like, he may allege this duress, and avoid the extorted bond. 
 137] But if a man be lawfully imprisoned, * and, either to pro- 
 cure his discharge, or on any other fair account, seals a bond or 
 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 gaoler is not bound to detain the 
 prisoner : for the law judges, in this respect, saith Sir Edward 
 Coke, like Festus the Roman governor, that it is unreason- 
 able 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 by the sentence of the law. The king, indeed, by his 
 royal prerogative, may issue out his writ ne exeat regno, and 
 prohibit any of his subjects from going into foreign parts with- 
 out licen e. This may be necessary for the public service and 
 
 * 
 
RIGHTS OF INDIVIDUALS. 7; 
 
 safe-guard 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 crimi 
 nal. For exile and transportation are punishments at presen t 
 unknown to the common law ; and, wherever the latter is now 
 inflicted, it is either by the choice of the criminal himself to 
 escape a capital punishment, or else by the express direction of 
 some modern act of parliament. To this purpose the great 
 charter declares, that no freeman shall be b a nished, unless by 
 the judg ment of his peers, j )r by the law of the land. And by 
 the habeas corpus act, 31 Car. II. c. 2 (that second magna chaita, 
 and stable bulwark»of our liberties,) it is enacted, that no subject 
 of this realm, who is an inhabitant of England, Wales, or Ber- 
 wick, shall be sent prisoner into Scotland, Ireland, Jersey, 
 Guernsey, or places beyond the seas (where * they can- [*138 
 not have the full benefit and protection of the common law) ; but 
 that all such imprisonments shall be illegal ; that the person, 
 who shall dare to commit another contrary to this law, shall be 
 disabled from bearing any office, shall incur the penalty of a 
 ptcemunire, and be incapable of receiving the king's pardon : and 
 the party suffering shall also have his private action against the 
 person committing, and all his aiders, advisers, and abettors ; and 
 shall recover treble costs ; besides his damages, ^which no jury 
 shall assess at less than five hundred pounds. /i>. ' , / / '/j/ 
 
 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 liege- 
 men, yet he cannot send any man out of the realm, even upon 
 the public service ; excepting sailors and soldiers, the nature of 
 whose employment necessarily implies an exception : he cannot 
 
 8 The writ of ne exeat, though used originally in England for political pur- 
 poses of state, in order to prevent the departure of subjects who might be 
 needed for the defense of the realm, has for a long period been employed as 
 a part of the remedial process of courts of equity in suits between private 
 parties. It is applicable in the case of equitable debts and claims, where 
 one party desires to prevent the other from withdrawing his person or prop- 
 erty from the jurisdiction of the court. It is also in use for the same pur- 
 pose in a number of the American States. It has been abolished in New York, 
 but a similar remedy by " order of arrest " has been substituted in its place 
 (Code Civ. Pro. §§ 548 and 55°- See U. S. Rev. St. § 717.) 
 
78 OF THE ABSOL UTE 
 
 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 thir d absolute rig ht, inherent in every Englishman, 
 is that of property : which consists in the free use, enjoyment, 
 and disposal ot all hTs acquisitions, without any control or dimin- 
 ution, save only by the laws of the land. The original of pri 
 vate 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 so- 
 ciety ; and are some of those civil advantages, in exchange for 
 which every individual has resigned a part of his natural liberty. 
 The laws of England are therefore, in point of honor and jus- 
 tice, extremely watchful in ascertaining and protecting this right. 
 Upon this principle the great charter has declared that no 
 freeman shall be disseized, or divested, of his freehold, or of his 
 *139] liberties, or free * customs, but by the judgment of his 
 peers, or by the law of the land. And by a variety of ancient 
 statutes it is enacted, that no man's lands or goods shall be seized 
 into the king'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 of law ; and if any thing be done to 
 the contrary, it shall be redressed, and holden for none. 
 
 So great moreover is the regard of the law for private prop- 
 erty, 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 grounds 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 consent of the owner of the land. In vain may it be 
 urged, 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 decide whether it be expedient or no. 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 
 
RIGHTS OF INDIVIDUALS. 79 
 
 aione can, and indeed frequently does, interpose, and compel the 
 individual to acquiesce. But how does it interpose and compel ? 
 Not by absolutely stripping the subject of his property in an 
 arbitrary manner ; but by giving him a full indemnification and 
 equivalent for the injury thereby sustained. The public is now 
 considered as an individual, treating wi^h 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 cau- 
 tion, and which nothing but the legislature can perform. ° 
 
 * Nor is this the only instance in which the law of [*140 
 
 'This right of the State or Government to take the property of a private 
 citizen for public uses, upon the payment of an appropriate compensation, is 
 known as the right o f e.mini'.nt dnma in. There is a special provision in 
 the U. S. Constitution that Fprivate property shall not be taken for public 
 use, without just compensatt Dn."| ' (Am'ts, Art 5.) This is only binding 
 upon the Federal Government, but there are similar provisions in the Con- 
 stitutions of the various States, so that the several State governments are 
 placed under the same obligation and restriction. Particular methods are 
 usually prescribed by statute in which this right shall be exercised, appoint- 
 mg the agencies by which the property is to be selected, providing for the 
 ascertainment of the proper measure of compensation to be awarded, etc., 
 %nd it is an important rule that such statutory regulations must be strictly 
 observed, since these statutes are in derogation of common right. It is not 
 necessary that the legislature should itself directly exercise the power, foi 
 such authority is frequently delegated to corporations, as e.g. railroad, canal, 
 and bridge companies, and other similar bodies corporate. Municipal corpora- 
 tions, as cities, are usually invested with this power. This right extends 
 not only to depriving an owner of corporeal property, as land, but also of that 
 which is incorporeal, as easements and franchises, and compensation must be 
 paid in both classes of cases. Sometimes also an easement (as e.g. a right 
 of way) is created in another's land by the exercise of this power, while at 
 others, the land itself is appropriated and the proprietor's right of ownership 
 is entirely divested. The legislature are the sole judges to what extent the 
 public use requires the extinguishment of the owner's title, and their power 
 in this rf.spect is not limited. [Brooklyn Park Commissioners v. Arm- 
 strong, 45 N.Y. 234.) The use for which the property is taken must be 
 public in its nature ; this rule, however, does not require that the use and 
 benefit to be derived, shall be universal, but only that they shall contribute in 
 some form to -the general welfare and progress of the community, or of the 
 particular district in which the right is exercised. In some rare cases also, 
 Constitutional provisions permit private property to be taken for private 
 uses, as in New York, for private roads. The compensation to be awarded 
 is measured by the value of the property taken, and the direct injury which 
 the owner will sustain from the loss. But a land-owner is not entitled ta 
 
8o OF THE ABSOLUTE 
 
 the land has postponed even public necessity to the sautd an.i 
 inviolable rights of private property. For no subject in England 
 can be constrained to pay any aids or taxes, even for the defence 
 of the realm or the support of government, but such as are im- 
 posed by his own consent, or that of his representatives in par- 
 liament. By the statute 25 Edw. I. c. 5 and 6, it is provided, 
 "That the king shall not take any aids or tasks, but by the common 
 assent of the realm. And what that common assent is, is more 
 fully explained by 34 Edw. I. st. 4, c. i, which enacts, that no 
 talliage or aid shall be taken without the assent of the arch- 
 bishops, bishops, earls, barons, knights, burgesses, and other 
 freemen of the land : and again by 14 Edw. III. st. 2, c. i, the 
 prelates, earls, barons, and commons, citizens, burgesses, and 
 merchants, shall not be charged to make any aid, if it be not by 
 the common assent of the great men and commons in parliament. 
 And as this fundamental law had been shamefully evaded under 
 many succeeding princes, by compulsive loans, and benevolences 
 
 compensation for the consequential injury which he suffers, when adjacent prop- 
 erty, not his own, is taken for public uses ; as e.g., where a city in laying out, 
 or grading a street, removes soil which is necessary for the support of the prop- 
 erty of a private owner, thereby causing damage to him. {Raddiff^s Excrs. 
 V. Mayor of Bkln., 4 N. Y. 195; Conklin v. N. Y. Sr'c. R. Co., I02 N. Y. 
 107 ; Transportation Co. v. Chicago, 99 U. S. 635 ; In re Niagara Falls Co., 
 108 N. Y. 375 ; but see 132 U. S. 75.) But compensation must be paid for 
 invading one's easement over land, though he did not own the land itself, as 
 e.g., his right to a public open street. {Story v. Elevated R. Co., 90 N. Y. 122.) 
 Another important instance, not mentioned by Blackstone in the text, in 
 which a private citizen may be deprived of his property for the public good, 
 is where buildings are destroyed or torn down in order to prevent the 
 spreading of a conflagration, or in order to raise bulwarks for defence against 
 public enemies. This was a right existing at common law, and might be 
 exercised not only by public authority but by any individual, in case of ne- 
 cessity. As Lord Coke expresses it, " For the Commonwealth a man shalJ 
 suffer damage ; as for the saving of a city or town, a house shall be plucked 
 down if the next be on fire. This every man may do, without being liable 
 to an action." (12 Coke, 13. > In such cases, no right to recover compensa- 
 tion existed at common law in favor of the owner, if the property were de- 
 stroyed on the ground of public necessity, and the emergency seemed rea- 
 sonably to require it. But sometimes it is provided by statute that public 
 officers shall alone have discretion to judge of the exigency. It is also 
 sometimes declared that damages may be recovered for the property demolished. 
 Such a right of action is entirely statutory. (See Wynehamer v. People, r 
 N. Y. 401 ; 2 Denio, 461 ; 3 Zabriskie (N. J.), 9 and 590; 120 U. S. 227.^ 
 So a person's property may be rendered valueless by the exercise of the " police 
 power" of a State, without entitling him to compensation. ( 123 U. S. 623.) 
 
RIGHTS OF INDIVIDUALS. 8i 
 
 extorted without a real and voluntary consent, it was made an 
 article in the petition of right 3 Car. I., that no man shall be 
 compelled to yield any gift, loan, or benevolence, tax, or such 
 like charge, without common consent by act of parliament. 
 And, lastly, by the statute i W. and M. st. 2, c. 2, it is declared, 
 that levying money for or to the use of the crown, by pretence 
 of prerogative, without grant of parliament, or for longer time, 
 or in other manner, than the same is or shall be granted, is 
 illegal. 
 
 In the three preceding articles we have taken a short view 
 of the principal absolute rights which appertain to every Eng 
 lishman. But in vain would these rights be declared, ascer- 
 tained, and protected by the dead letter of the laws, if the* [*141 
 constitution had provided no other method to secure their 
 actual enjoyment. It has therefore established certain other 
 auxiliary subordinate rights of the subject, which serve princi- 
 pally as outworks or barriers to protect and maintain inviolate 
 the three great and primary rights, of personal security, personal 
 liberty, and private property. These are : 
 
 1. The constitution, powers, and privileges of parliament; of 
 which I shall treat at large in the ensuing chapter. 
 
 2. The limitation of the king's prerogative, by bounds so 
 certain and notorious, that it is impossible he should either mis- 
 take or legally exceed them without the consent of the people. 
 Of this, also, I shall treat in its proper place. The former of 
 these keeps the legislative power in due health and vigor, so as 
 to make it improbable that laws should be enacted destructive 
 of general liberty : the latter is a guard upon the executive power 
 by restraining it from acting either beyond or in contradiction 
 to the laws, that are framed and established by the other. 
 
 3. A third subordinate right of every Englishman is that of 
 applying to the courts of justice for redress of injuries. Since 
 the law is in England the supreme arbiter of every man's life, 
 liberty, and property, courts of justice must at all times be open 
 to the subject, and the law be duly administered thereiri. The 
 emphatical words of magna charta, spoken in the person of the 
 king, who in judgment of law (says Sir Edward Coke>, is ever 
 present and repeating them in all his courts, are these; nulli 
 vmdemus, nulli negabimus, aut differemus rectum vel j'ustitiam : 
 "and therefore every subject," continues the -ame learned 
 
 6 
 
82 OF THE ABSOLUTE 
 
 author, "for injury done to him in boms, in i-errts, vel persona^ 
 by any other subject, be he ecclesiastical or temporal, without 
 any exception, may take his remedy by the course of the law, 
 and have justice and right for the injury done to him, freely 
 without sale, fully without any denial, and speedily without de- 
 lay." It were endless to enumerate all the affirmative acts of 
 142*] parliament, *wherein justice is directed to be done ac- 
 cording to the law of the land ; and what that law is every sub- 
 ject knows, or may know, if he pleases ; for it depends not upon 
 the arbitrary will of any judge, but is permanent, fixed, and un- 
 changeable, unless by authority of parliament. I shall, however, 
 just mention a few negative statutes, whereby abuses, perver- 
 sions, or delays of justice, especially by the prerogative, are re- 
 strained. It is ordained by magna charta that no freeman shall 
 be outlawed, that is, put out of the protection and benefit of the 
 laws, but according to the law of the land. By 2 Edw. III. c. 
 8, and 11 Ric. II. c. 10, it is enacted, that nc commands or let- 
 ters shall be sent under the great seal, or the little seal, the 
 signet, or privy seal, in disturbance of the law ; or to disturb or 
 delay common right ; and, though such commandments should 
 come, the judges shall not cease to do right; which is also made 
 a part of their oath by statute 18 Edw. III. st. 4. And by i W, 
 and M. st. 2, c. 2, it is declared that the pretended power of sus- 
 pending, or dispensing with laws, or the execution of laws, by 
 regal authority, without consent of parliament, is illegal. 
 
 Not only the substantial part, or judicial decisions, of the 
 law, but also the formal part, or method of proceeding, cannot be 
 altered but by parliament ; for, if once those outworks were de- 
 molished, there would be an inlet to all manner of innovation in 
 the body of the law itself. The king, it is true, may erect new 
 courts of justice ; but then they must proceed according to the 
 old established forms of the common law. For which reason it 
 is declared, in the statute 16 Car. I. c. 10, upon the dissolution 
 of the court of starchamber, that neither his majesty, nor his 
 privy counsel, have any jurisdiction, power or authority, by Eng- 
 lish bill petition, articles, libel, (which were the course of pro- 
 ceeding in the starchamber, borrowed from the civil law,) or by 
 any other arbitrary way whatsoever, to examine, or draw into 
 i(uestion, determine, or dispose of the lands or goods of any sub- 
 jects of this kingdom; but that the same ought to be tried and 
 
RIGHTS OF INDIVIDUALS. 83 
 
 determined in the ordinary courts of justice, and by course of 
 law. 
 
 4. * If there should happen any uncommon injury, or t*143 
 infringement of the rights before mentioned, which the ordinary 
 course of law is too defective to reach, there still remains a fourth 
 subordinate right, appertaining to every individual, namely, the 
 right o f pf:tit'"""'"g ^^^ ^'"jiC "T either house of parliament, for 
 the redress of grievance^/X In Russia we are told that the 
 czar Peter established a law, that no subject might petition the 
 throne till he had first petitioned to different ministers of state. 
 In case he obtained j ustice from neither, he might then present 
 a third petition to the prince ; but upon pain of death, if found to 
 be in the wrong: the consequence of which was, that no one 
 dared to offer such third petition ; and grievances seldom falling 
 under the notice of the sovereign, he had little opportunity to re- 
 dress them. The restrictions, for some there are, which are laid 
 upon petitioning in England, are of a nature extremely different ; 
 and, while they promote the spirit of peace, they are no check 
 upon that of liberty. Care only must be taken, lest, under the 
 pretence of petitioning, the subject be guilty of any riot or 
 tumult, as happened in the opening of the memorable parliament 
 of 1640: and, to prevent this, it is provided by the statute 13 
 Car. II. St. I, c. 5, that no petition to the king, or either house 
 of parliament, for any alteration in church or state, shall be 
 signed by above twenty persons, unless the matter thereof be ap- 
 proved by three justices of the peace, or the major part of the 
 grand jury in the country ; and in London by the lord may- 
 or, aldermen and common council : nor shall any petition be pre- 
 sented by more than ten persons at a time. But, under these 
 regulations,' it is declared by the statute i W. and M. st. 2, c. 2, 
 that the subject hath a right to petition ; and that all commit- 
 ments and prosecutions for such petitioning are illegal. 
 
 5. The fifth and last auxiliary right of the subject, that I 
 shall at present mention, is that of haying_anns_for their de- 
 fence, suitable to their condition and degree, and such as are 
 
 ^_^or / . ,, ~. 
 M " Congress shall make no law abridging the right' of the people, peaceably 
 to assemble, and to petition the government for a redress of grievances." 
 (U.S. Constitution, Am'ts, Art. I.) Similar provisions are contained in the 
 State Constitutions. (See N. Y. Rev. Statutes, i. p. 85 ; U. S. v. Cruikshank, 
 92 U. S. 542.) 
 
84 RIGHTS OF INDIVIDUALS. 
 
 144*] allowed by law." Which is also declared by the same 
 -statute, I W. and M. st. 2, c. 2, and is indeed a public allowance, 
 under due restrictions, of the natural right of resistance and self- 
 preservation, when the sanctions of society and laws are found 
 insufficient to restrain the violence of oppression. 
 
 In these several articles consist the rights, or, as they are 
 frequently termed, the liberties of Englishmen : liberties more 
 generally talked of, than thoroughly understood ; and yet highly 
 necessary to be perfectly known and considered by every man ol 
 rank and property, lest his ignorance of the points whereon they 
 are founded should hurry him into faction and licentiousness on 
 the one hand, or a pusillanimous indifference and criminal sub- 
 mission on the other. And we have seen that these rights con- 
 sist, primarily, in the free enjoyment of personal security, of 
 personal liberty, and of private property. So long as these re- 
 main inviolate, the subject is perfectly free ; for every species of 
 compulsive tyranny and oppression must act in opposition to one 
 or other of these rights, having no other object upon which it 
 can possibly be employed. To preserve these from violation, it 
 is necessary that the constitution of parliament be supported in 
 its full vigor; and limits, certainly known, be set to the royal 
 prerogative. And, lastly, to vindicate these rights, when actually 
 violated or attacked, the subjects of England are entitled, in the 
 first place, to the regular administration and free course of jus- 
 tice in the courts of law ; next, to theji^it_of_4ietitiQiiiag^_the 
 king and garlia ment for red rF::<>i of grievanrgs ; and, lastly, to the 
 rig]it of having^nd using_arms for_self-preservation an d defen ce. 
 And all these rights and liberties it is ou r birtHnghl . to enjoy 
 entire ; unless where the laws of our country have laid them un- 
 der necessary restraints ; restraints in themselves so gentle and 
 moderate, as will appear, upon farther inquiry, that no man of 
 
 " It is declared in the U. S. Constitution that, " A well-regulated militia 
 being necessary to the security of a free State, the right of the people to 
 keep and bear arms shall not be infringed." (Am'ts, Art. 2.) Similar pro- 
 wsions are contained in the constitutions of a number of the States. But 
 it is generally held that statutes prohibiting the carrying of concealed vitar 
 pons are not in conflict with these constitutional provisions, since they 
 merely forbid the carrymg of arms in a particular manner, which is likely to 
 lead to breaches of the peace and provoke to the commission of crime, 
 rather than contribute to public or personal defence. In some States, how- 
 ever, a contrary doctrine is maintained. {State v. Shelby, 90 Mo. 302 ; see 
 116 U. S. 252.) 
 
OF SUBORDINA TE MA GISTRA TES. 85 
 
 sense or probity would wish to see them slackened. For all of 
 us have it in our choice to do every thing that a good man would 
 desire to do ; and are restrained from nothing but what would be 
 pernicious either to ourselves or our fellow-citizens. So that this 
 review * of our situation may fully justify the observation [*145 
 of a learned French author, who indeed generally both thought 
 and wrote in the spirit of genuine freedom (a), and who hath not 
 scrupled to profess, even in the very bosom of his native country, 
 that the English is the only nation in the world where political 
 and civil liberty is the direct end of its constitution. Recomend- 
 ing, therefore, to the student of our laws a farther and more ac- 
 curate search into this extensive and important title, I shall close 
 my remarks upon it with the expiring wish of the famous Father 
 Paul to his country, " Esto perpetua." 
 
 CHAPTER II. 
 
 [BL. COMM. BOOK I. CHAP. IX.J 
 
 Of Subordinate Magistrates. 
 
 In a former chapter of these Commentaries we distinguished 
 magistrates into two kinds : supreme, or those in whom the sov- 
 ereign power of the state resides ; and subordinate, or those who 
 act in an inferior secondary sphere. Wehave hitherto considered 
 the former kind only ; namely, the supreme legislative power or 
 parliament, and the supreme executive power, which is the king :* 
 and are now to proceed to inquire into the rights and duties of 
 the principal subordinate magistrates. 
 
 -Vnd herein we are not to investigate the powers and duties of 
 his majesty's great officers of state, the lord treasurer, lord cham- 
 berlain, the principal secretaries, or the like ; because I do not 
 know that they are in that capacity in any considerable degree 
 the objects of our laws, or have any very important share of 
 
 (a) Montesquieu, Spirit of Laws, xi. 5. 
 
 • The chapters upon these topics have been omitted, as relating exclusively 
 to the English system of government, and therefore not practically impor 
 'ant to the American student. 
 
86 OF SUBORDINA TE MAGISTRA TES. 
 
 magistracy conferred upon them : except that the secretaries of 
 state are allowed the power of commitment, in order to bring 
 offenders to trial. Neither shall I here treat of the office and 
 authority of the lord chancellor, or the other judges of the su- 
 perior courts of justice, because they will find a more proper 
 place in the third part of these Commentaries. Nor shall I enter 
 into any minute disquisitions, with regard to the rights and 
 *339] dignities of mayors and *aldermen, or other magis 
 trates of particular corporations ; because these are mere private 
 and strictly municipal rights, depending entirely upon the domes- 
 tic constitution of their respective franchises. But the magis- 
 trates and officers, whose rights and duties it will be proper in 
 this chapter to consider, are such as are generally in use, and 
 have a jurisdiction and authority dispersedly throughout the 
 kingdom : which are, principally, sheriffs ; coroners ; justices of 
 the peace ; constables ; surveyors of highways ; and overseers of 
 the poor. In treating of all which I shall inquire into, first, their 
 antiquity and original ; next, the manner in which they are appoint- 
 ed and may be removed ; and, lastly, their rights and duties. And 
 first of sheriffs. 
 
 1. The sheriff is an officer of great antiquity in this kingdom, 
 his name being derived from two Saxon words [cipe Sejiera, the 
 reeve, bailiff, or officer of the shire.f He is called in Latin vice- 
 comes, as being the deputy of the earl or comes; to whom the 
 custody of the shire is said to have been committed at the first 
 division of this kingdom into counties. But the earls in process 
 of time, by reason of their high employments and attendance on 
 the king's person, not being able to transact the business of the 
 county, were delivered of that burden : reserving to themselves 
 the honor, but the labor was laid on the sheriff. So that now 
 the sheriff does all the king's business in the county ; and though 
 he be still called vice-comes, yet he is entirely independent of, and 
 not subject to, the earl ; the king by his letters patent, commit- 
 ting custodiam comitatus to the sheriff, and him alone. 
 
 Sheriffs were formerly chosen by the inhabitants of the several 
 counties. In confirmation of which it was ordained by statute 28 
 Edw. I. c. 8, that the people should have election of sheriffs in 
 every shire, where the shrievalty is not of inheritance. For an- 
 ciently in some counties the sheriffs were hereditary ; as I appre- 
 hend they were in Scotland till the statute 20 Geo. II. c. 43 : and 
 
 , t T"^' English statute law in regard to sheriffs was consolidated in 1887. (=;o & 51 Virt r e= 1 A 
 sheriff's term of office is one year. ^ ^ =5-; 'i 
 
OF SUBORDINA TE MA GISTRA TES. 87 
 
 still continue in the county of Westmoreland to this day': 
 •the city of London having also the inheritance of the shiiev- [*340 
 alty of Middlesex vested in their body by charter. The reason 
 of these popular elections is assigned in the same statute, c. 1 3,. 
 "that the commons might choose such as would not be a burden 
 to them." And herein appears plainly a strong trace of the dem- 
 ocratical part of our constitution ; in which form of govern- 
 ment it is an indispensable requisite, that the people should 
 choose their own magistrates. This election was in all proba- 
 bility not absolutely vested in the commons, but required the 
 royal approbation. For, in the Gothic constitution, the judges 
 of the county courts (which office is executed by our sheriff) 
 were elected by the people, but confirmed by the king ; and the 
 form of. their election was thus managed : the people or incoUe 
 territorii, choose twelve electors, and they nominated three per- 
 sons, ex quibus rex uttum confirmabat. But with us in England 
 these popular elections, growing tumultuous, were put an end to 
 by the statute 9 Edw. II. st. 2. which enacted, that the sheriffs 
 should from thenceforth be assigned by the chancellor, treasurer, 
 and the judges ; as being persons in whom the same trust might 
 with confidence be reposed. By statute 14 Edw. III. c. 7, 23 
 Hen. VI. c. 8, and 21 Hen. VIII. c. 20, the chancellor, treasurer, 
 president of the king's council, chief justices, and chief baron, 
 are to make this election ; and that on the morrow of All Souls 
 in the exchequer. And the king's letters patent, appointing the 
 new sheriffs, used commonly to bear date the 6th day of 
 November. The statute of Cambridge, 12 Ric. II. c. 2, ordains, 
 that the chancellor, treasurer, keeper of the privy seal, steward 
 of the king's house, the king's chamberlain, clerk of the rolls, 
 the justices of the one bench and the other, barons of the exche- 
 quer.f and all other that shall be called to ordain, name, or make 
 justices of the peace, sheriffs and other officers of the king, shall 
 be sworn to act indifferently, and to appoint no man that sueth 
 either privily or openly to be put in office, but such only as 
 they shall judge to be the best and most sufficient. And the 
 custom now is (and has been at least *ever since the time [*341 
 of Fortescue, who was chief justice and chancellor of Henry the 
 Sixth) that all the judges, together with the great officers and 
 
 1 Sheriffs are now chosen in this county as in other counties. 
 
 '^ The nominations are still made annually for every county in the Royal Courts of 
 Justice by the great officers of the kingdom. A sheriff must have sufficient land in 
 his county to be able to answer for his acts. 
 
88 OF i> UBORDINA TE MA GIS TKA TES. 
 
 privy counsellors, meet in the exchequer on the morrow of All 
 Souk yearly, (which day is now altered to the morrow of St 
 Martin by the last act for abbreviating Michaelmas term,) and 
 then and there the judges propose three persons, to be reported 
 (if approved of) to the king, who afterwards appoints one of them 
 to be sheriff.^ 
 
 This custom, of the twelve judges proposing three persons, 
 seems borrowed from the Gothic constitution before mentioned ; 
 with this difference, that among the Goths the twelve nominors 
 were first elected by the people themselves. And this usage of 
 ours at its first introduction, I am apt to believe, was founded 
 upon some statute, though not now to be found among our print- 
 ed laws : first, because it is materially different from the direc- 
 tion of all the statutes before mentioned : which it is hard to 
 conceive that the judges would have countenanced by their con- 
 currence, or that Fortescue would have inserted in his book, un- 
 less by the authority of some statute : and also, because a statute 
 is expressly referred to in the record, which Sir Edward Coke 
 tells us, he transcribed from the council book of 3 March, i\ 
 Henry VI. and which is in substance as follows. The king had 
 of his own authority appointed a man sheriff of Lincolnshire, 
 which ofHce he refused to take upon him : whereupon the opin- 
 ions of the judges were taken, what should be done in this behalf. 
 And the two chief justices, Sir John Fortescue and Sir John 
 Prisot, delivered the unanimous opinion of them all ; " that the 
 king did an error when he made a person sheriff, that was not 
 chosen and presented to him according to the statute, that the 
 person refusing was liable to no fine for disobedience, as if he 
 had been one of the three persons chosen according to the tenor 
 of the statute ; that they would advise the king to have recourse 
 
 " Substantially the same method of appointment still prevails in England. 
 The morrow of St. Martin on which the judges meet is the 12th of Novem- 
 ber. The names of the proposed sheriffs are afterwards presented to the 
 Queen, who signifies her choice for each county. This appointment is termed 
 technically " pricking the sheriffs." In the American States, sheriffs are also 
 county officers, but they are generally elected by the people. In New York, 
 for example, they are elected in the respective counties once in every three 
 years, and, during the continuance of their term, can hold no other office. 
 The officers of the Federal Govermnent, who exercise similar functions and 
 duties, are called marshals. They are appointed by the President, subject 
 to confirmation by the Senate. (U. S. Rev. St. § 776.) 
 
OF SUBORDINATE MAGISTRATES. 89 
 
 to the three persons that were chosen according to the statute, 
 or that some other thrifty man be entreated to occupy the office 
 for this year ; and that, the next year, to eschew such inconveni- 
 ences, the order of the statute in this behalf made be observed." 
 But notwithstanding this unanimous resolution of *all [*342 
 the judges of England, thus entered in the council book, and the 
 statute 34 and 35 Hen. VIII. c. 26, § 61, which expressly recog- 
 nizes this to be the law of the land, some of our writers have 
 affirmed, that the king, by his prerogative, may name whom he 
 pleases to be sheriff, whether chosen by the judges or no. This 
 is grounded on a very particular case in the fifth year of Queen 
 Elizabeth, when, by reason of the plague, there was no Michael- 
 mas term kept at Westminster ; so that the judges could not 
 meet there in crastino animai'um to nominate the sheriffs : where- 
 upon the queen named them herself, without such previous as- 
 sembly, appointing for the most part one of the two remaining 
 in the last year's list. And this case, thus circumstanced, is the 
 only authority in our books for the making these extraordinary 
 sheriffs. It is true, the reporter adds, that it was held that the 
 queen by her prerogative might make a sheriff without the elec- 
 tion of the judges, non obstante aliqiio statuto in contraritim : but 
 the doctrine of non obstante s, which sets the prerogative above 
 the laws, was effectually demolished by the bill of rights at the 
 revolution, and abdicated Westminster-hall when King James 
 abdicated the kingdom. However, it must be acknowledged, 
 that the practice of occasionally naming what are called pocket- 
 sheriffs, by the sole authority of the crown, hath uniformly con- 
 tinued to the reign of his present majesty; in which, I believe, 
 few, if any, compulsory instances have occurred. 
 
 Sheriffs, by virtue of several old statutes, are to continue in 
 their office no longer than one year : and yet it hath been said 
 that a sheriff may be appointed durante bene placito, or during 
 the king's pleasure ; and so is the form of the royal writ. There- 
 fore, till a new sheriff be named, his office cannot be determined, 
 unless by his own death, or the demise of the king ; in which last 
 case it was usual for the successor to send a new writ to the old 
 sheriff ; but now by statute i Ann. st. i, c. 8, all officers appoint- 
 ed by the *preceding king may hold their offices for six [*343 
 months after the king's demise, unless sooner displaced by the 
 successor.! We may further observe, that by statute i Ric. II. 
 
 t Now .nfter demise of the Crown, the sheriff holds ofBce for the test of his term. The regula- 
 tion in statute r Ric. II. c. ii, is also found in the statute now in force. (50 & 51 Vict. c. 55.) 
 
90 OF SUBORDINA TE MA GISTRA TES. 
 
 c. II, no man that has served the office of sheriff for oni }ear 
 can be compelled to serve the same again within three yeara 
 after. 
 
 We shall find it is of the utmost importance to have the 
 sheriff appointed according to law, when we consider his power 
 and duty. These are either as judge, as the keeper of the king's 
 peace, as a ministerial officer of the superior courts of justice, or 
 as the king's bailiff. 
 
 In his judicial capacity he is to hear and determine all causes 
 of forty shillings' value and under, in his county court, of which 
 more in its proper place ; and he has also a judicial power in 
 divers other civil cases. He is likewise to decide the elections 
 of knights of the shire, (subject to the control of the house of 
 commons,) of coroners, and of verderors ; to judge of the quali- 
 fication of voters, and to return such as he shall determine to be 
 duly elected.* 
 
 As the keeper of the king's peace, both by common law and 
 special commission, he is the first man in the county, and supe- 
 rior in rank to any nobleman therein, during his office. He may 
 apprehend, and commit to prison, all persons who break the 
 peace, or attempt to break it ; and may bind any one in a recog- 
 nizance to keep the king's peace. He may, and is bound ex of' 
 ficio to pursue, and take all traitors, murderers, felons, and other 
 misdoers, and commit them to gaol for safe custody. He is also 
 to defend his county against any of the king's enemies when they 
 come into the land : and for this purpose, as well as for keeping 
 the peace and pursuing felons, he may command all the people 
 of his county to attend him ; which is called the posse comitatus, 
 or power of the county : and this summons every person above 
 fifteen years old, and under the degree of peer, is bound to attend 
 *344] upon warning, *under pain of fine and imprisonment. 
 
 ' The judicial powers of the sheriflF have been, to some extent, changed by 
 recent English statutes. His jurisdiction in the county court in the case of 
 small debts has been taken away, but he may still hold a county court for 
 election purposes, for the execution of writs, etc. He cannot try criminal 
 offenses. Writs of inquiry are, moreover, directed to the sheriflF to assess 
 damages in civil cases where judgment has gone by default, and he has in such 
 cases to empanel a jury to decide the cause. A similar practice of directing 
 writs of inquiry to the sheriff exists commonly in the American States, and is 
 the chief judicial function which he now possesses. 
 
CF SUBORDINA TE MA GISTRA TES. gj 
 
 But though the sheriff is thus the principal conservator of the 
 peace in his county, yet by the express directions of the great 
 charter, he, together with the constable, coroner, and certain 
 other officers of the king, are forbidden to hold any pleas 
 of the crown, or, in other words, to try any criminal offence. For 
 it would be highly . unbecoming, that the executioners of justice 
 should be also the judges ; should impose, as well as levy, fines 
 and amercements ; should one day condemn a man to death, and 
 personally execute him the next. Neither may he act as an or- 
 dinary justice of the peace during the time of his office : for this 
 would be equally inconsistent ; he being in many respects the 
 servant of the justices. 
 
 In his ministerial capacity the sheriff is bound to execute all 
 process issuing from the king's courts of justice. In the com- 
 mencement of civil causes, he is to serve the writ, to arrest, and 
 to take bail ; when the cause comes to trial, he must summon 
 and return the jury ; when it is determined, he must see the 
 judgment of the court carried into execution. In criminal mat- 
 ters, he also arrests and imprisons, he returns the jury, he has 
 the custody of the delinquent, and he executes the sentence of 
 the court, though it extend to death itself. 
 
 As the king's bailiff, it is his business to preserve the rights 
 of the king within his bailiwick ; for so his county is frequently 
 called in the writs ; a word introduced, by the princes of the 
 Norman line ; in imitation of the French, whose territory is di- 
 vided into bailiwicks, as that of England into counties. He 
 must seize to the king's use all lands devolved to the crown by 
 attainder or escheat ; must levy all fines and forfeitures ; must 
 seize and keep all waifs, wrecks, estrays, and the like, unless they 
 be granted to some subject; and must also collect the king's 
 rents within the bailiwick, if commanded by process from the 
 exchequer.* 
 
 *To execute these various offices, the sheriff has un- [*345 
 der him many inferior officers ; an under-sheriff, bailiffs, and 
 gaolers ; who must neither buy, sell, nor farm their offices, on 
 forfeiture of 500/. 
 
 The under-sheriff usually performs all the duties of the office ; 
 a very few only excepted, where the personal presence of the 
 
 * The power of the sheriff to collect the rents of the Crown has been taken away. 
 His duties as peace officer and his other ministerial functions are still substantially 
 the same as are stated by Blackstone. (50 & 51 Vict. c. 55.) 
 
92 OF SUBORDINA TE MA GISTRA TES. 
 
 high-sheriff is necessary. But no under-sheriff shall abide in his 
 office above one year ; and if he does, by statute 23 Hen. VI. c 
 8, he forfeits 200Z., a very large penalty in those early days. 
 And no under-sheriff or sheriff's officer shall practice as an 
 attorney, during the time he continues in such office : for this 
 would be a great inlet to partiality and oppression/ But these 
 salutary regulations are shamefully evaded, by practicing in the 
 names of other attorneys, and putting in sham deputies by way 
 of nominal under-sheriffs : by reason of which, says Dalton, the 
 under-sheriffs and bailiffs do grow so cunning in their several 
 places, that they are able to deceive, and it may well be feared 
 that many of them do deceive, both the king, the high-sheriff, 
 and the county. 
 
 Bailiffs, or sheriff's officers, are either bailiffs of hundreds, or 
 special bailiffs." Bailiffs of hundreds are officers appointed 
 over those respective districts by the sheriffs, to collect fines 
 therein ; to summon juries ; to attend the judges and justices at 
 the assizes, and quarter sessions ; and also to execute writs and 
 process in the several hundreds. But, as these are generally 
 plain men and not thoroughly skilful in this latter part of their 
 office, that of serving writs, and making arrests and executions, 
 it is now usual to join special bailiffs with them ; who are gener- 
 ally mean persons, employed by the sheriffs on account only of 
 their adroitness and dexterity in hunting and seizing their prey. 
 
 6 These regulations, that an under-sheriff should not practice as attorney 
 and should not remain in office more than a year, have been abolished by 
 statute, and such officers are now generally attorneys, and frequently remain 
 in office for many consecutive years. The under-sheriff is now nominated by 
 the sheriff within one month after his own appointment. Deputy-sheriffs may 
 now be appointed in England by the sheriff, though these were officers former- 
 ly unknown to the English law. (50 & 51 Vict. c. 55.) In New York it is 
 provided that no sheriff, under-sheriff, deputy-sheriff, sheriff's clerk, or coro- 
 .ler, shall, during his continuance in office, practise as attorney or coun- 
 sellor in any court. (Code Civ. Pro. § 62.) There are similar statutory provis- 
 ions in other American States. The under-sheriff is appointed in New York by 
 the sheriff, and holds office during the latter's pleasure. There are also 
 deputy-sheriffs, who are appointed in the same way, the sheriff having 
 power to appoint as many deputies as he thinks proper. The practice of 
 the various States is quite similar in these matters. 
 
 ^ The term " bailiif" is but seldom used in the United States. The duties 
 of these subordinate officers are performed by the under-sheriff or deputy 
 sheriff As to English law, see 50 & 51 Vict. c. 55, s. 29. 
 
OF S UBORDINA TE MA CIS TRA TES. 93 
 
 The sheriff being * answerable for the misdemeanors of [*346 
 these bailiffs, they are therefore usually bound in an obligation 
 with sureties for the due execution of their office, and thence 
 are called bound-bailiffs ; which the common people have cor- 
 rupted into a much more homely appellation. 
 
 Gaolers are also the servants of the sheriff, and he must be 
 responsible for their conduct. Their business is to keep safely 
 all such persons as are committed to them by lawful warrant ; 
 and, if they suffer any such to escape, the sheriff shall answer it 
 to the king, if it be a criminal matter, or, in a civil case, to the 
 party injured.' And to this end the sheriff must have lands 
 sufficient within the tounty to answer the king and his people. 
 The abuses of gaolers and sheriff's officers, toward the unfortu- 
 nate persons in their custody, are well restrained and guarded 
 against by statute 32 Geo. II. c. 28, and by statute 14 Geo. III. 
 c. S9. provisions are made for better preserving the health of 
 prisoners, and preventing the goal distemper. 
 
 The vast expense, which custom has introduced in serving 
 the office of high-sheriff, was grown such a burthen to the sub 
 ject, that it was enacted, by statute 13 and 14 Car. II. c. 21, that 
 no sheriff (except of London, Westmoreland, and towns which 
 are counties of themselves) should keep any table at the assizes, 
 
 ' " Tlie absolute authority of the sheriff over the jailer was, however, 
 curtailed by various statutes, and now, by the 28 & 29 Vict. ch. 126, this 
 latter officer is appointed by the justices at sessions, instead of by the sheriff, 
 and holds office during their pleasure. The legal custody of all prisoners 
 confined in prison, under the above act, is vested in the jailer, not in the 
 sheriff, except as regards prisoners under sentence of death, over whom, for 
 the purpose of carrying the sentence into effect, the sheriff has the same 
 jurisdiction as he possessed before the statute." (Broom and Hadley's Comm. 
 I- 414.) The sheriff is still liable for the escape of a prisoner in a civil case, to 
 the party injured, but not for escapes of criminals. (50 & 51 Vict. c. 55.) 
 
 In the United States, this subject is g-enerally regulated by statute. In 
 New York, for instance, the sheriff of each county, as a general rule, has the 
 custody of the jails and prisons therein, and may appoint keepers of such 
 jails, for whose acts they are held responsible. It is the general rule in the 
 several States, that the sheriff shall be liable for the escape of a prisoner 
 detained under civil process, and a civil action for damages may be maintained 
 against him by the party at whose suit the arrest and imprisonment was 
 made. For negligently suffering or wilfully aiding the escape of a prisoner 
 under arrest upon a criminal charge, the sheriff is usually made criminally 
 responsible. (Dunford v. Weaver, 84 N. Y. 445 ; State v. Newcomer, 109 
 Ind. 243.) 
 
94 OF SUBORDINA TE MA GISTRA TES. 
 
 except for his own family, or give any presents to the judges or 
 their servants, or have more than forty men in livery : yet for 
 the sake of safety and decency, he may not have less than twenty 
 men in England and twelve in Wales ; upon forfeiture, in any of 
 these cases, of 20oZ.' 
 
 II. The coroner's is also a very ancient office at the common 
 law. He is called coroner, coronator, because he hath principally 
 to do with pleas of the crown, or such wherein the king is more 
 immediately concerned. And in this light the lord chief justice 
 of the King's Bench is the principal coroner in the kingdom ; 
 and may, if he pleases, exercise the jurisdiction of a coroner in 
 *347] any part of the realm. But * there are also particular 
 coroners for every county of England, usually four, but some- 
 times six, and sometimes fewer. This office is of equal antiquity 
 with the sheriff ; and was ordained together with him to keep the 
 peace, when the earls gave up the wardship of the county. 
 
 He is still chosen by all the freeholders in the county court, 
 as by the policy of our ancient laws the sheriffs, and conservators 
 of the peace, and all other officers were, who were concerned in 
 matters that affected the liberty of the people ; and as verderors 
 of the forest still are, whose business it is to stand between 
 the prerogative and the subject in the execution of the 
 forest laws. For this purpose there is a writ at common law 
 de coronatore eligendo ; in which it is expressly commanded the 
 sheriff " quod talem eligi faciat, qui melius et sciat, et velit et 
 possit, officio illi intendereP And, in order to effect this the 
 more surely, it was enacted by the statute of Westm. i, that 
 
 8 The powers and liabilities of sheriffs are, in the main, the same in the 
 United States as in England. These are, however, as a general rule, ex- 
 tensively and minutely prescribed by statutory provisions, and reference must 
 be made to the statutes of the various States for precise details. Sheriffs 
 are civilly responsible for the neglect or violation of duty on the part of the 
 under-sheriff or deputy sheriffs, while acting in their official capacity. They 
 are held strictly to the faithful fJerformance of the duties of their 
 office ; and in order to secure the proper discharge of such duties, they 
 are usually required to give bonds upon entering into office. Their func- 
 tions in the service and execution of process in civil and criminal cases, in 
 particular, are of great importance. As their duties are chiefly ministerial 
 (see post, p. 103, note), they are liable for any neglect, omission, or miscon- 
 duct in the performance of such duties to the persons injured thereby, as e.g., 
 for wrongful arrests, wrongful levies upon property, failure to execute process, 
 false returns, etc. {Sharpe v. Doyle, 102 U. S. 686; Wentworth v. Sawyer, 
 76 Me. 434; Bacon v. Cropsey, 7 N. Y. 195.) 
 
OF SVBORDINA TE MA GISTRA TES. 95 
 
 none but lawful and discreet knights should be chosen : and 
 there was an instance in the 5 Edw. III. of a man being removed 
 from this office, because he was only a merchant. But it seems 
 it is now sufficient if a man hath lands enough to be made a 
 knight, whether he be really knighted or not : for the coro- 
 ner ought to have an estate sufficient to maintain the dignity of 
 this office, and answer any fines that may be set upon him for 
 his misbehavior ; and if he hath not enough to answer, his fin« 
 shall oe levied on the county, as the punishment for electing an 
 insufficient officer. Now indeed, through the culpable neglect of 
 gentlemen of property, this office has been suffered to fall into 
 disrepute, and get mto low and indigent hands : so that, although 
 formerly no coroners would condescend to be paid for serving 
 their country, and they were by the aforesaid statute of Westm. 
 I, expressly forbidden to take a *reward, under pain of a [*348 
 great forfeiture to the king ; yet for many years past they have 
 only desired to be chosen for the sake of their perquisites : being 
 allowed fees for their attendance by the statute 3 Hen. VII. c. i, 
 which Sir Edward Coke complains of heavily ; though, since his 
 time, those fees have been much enlarged." 
 
 The coroner is chosen for life ; but may be removed, either 
 by being made sheriff, or chosen verderor, which are offices in- 
 compatible with the other ; or, by the king's writ de coronatort 
 exonerando, for a cause to be therein assigned, as that he is en- 
 gaged in other business, is incapacitated by years or sickness, 
 hath not a sufficient estate in the county, or lives in an incon- 
 venient part of it. And by the statute 25 Geo. II. c. 29, extor- 
 tion, neglect, or misbehavior, are also made causes of re 
 moval.'° 
 
 The office and power of a coroner are also, like those of the 
 sheriff, either judicial or ministerial ; but principally judicial. 
 This is in great measure ascertained by statute 4 Edw. I. de offi- 
 cio '■or'onatoris; and consists, first, in inquiring, when any person 
 is slain, or dies suddenly, or in prison, concerning the manner of 
 
 » The Eno-lish statute law in regard to coroners was consolidated in 1887. 
 (50 & 51 Vict. c. 11-) Coroners are still elected by the freeholders, and must 
 own land in fee sufficient to answer for their acts. They are now paid by 
 salaries, not by fees. But a coroner acting in the place of a sheriflFis entitled 
 to the same fees. 
 
 w The present statute is to the same effect. (50 & ji Vict. c. 73, s. 8.) 
 
96 OF SUBORDINATE MAGISTRATES. 
 
 his dcdth. And this must be "super visum corporis;" for, if 
 the body be not found, the coroner cannot sit. He must also sit 
 at the very place where the death happened ; and his inquiry is 
 made by a jury from four, five, or six, of the neighboring 
 towns, over whom he is to preside." If any be found guilty by 
 this inquest, of murder or other homicide, he is to commit them 
 to prison for farther trial, and is also to inquire concerning their 
 lands, goods, and chattels, which are forfeited thereby: but, 
 whether it be homicide or not, he must inquire whether any 
 *349] deodand has accrued to the king,'' or the *lord of the 
 franchise, by this death ; and must certify the whole of this in- 
 quisition (under his own seal and the seals of his jurors), to- 
 gether with the evidence thereon, to the court of king's bench, 
 or the next assizes. Another branch of his office is to inquire 
 concerning shipwrecks ; and certify whether wreck or not, and 
 who is in possession of the goods. Concerning treasure-trove, 
 he is also to inquire who were the finders, and where it is, and 
 whether any one be suspected of having found and concealed a 
 treasure ; " and that may be well perceived (saith the old statute 
 of Edw. I.) where one liveth riotously, haunting taverns, and 
 hath done so of long time : " whereupon he might be attached, 
 and held to bail, upon this suspicion only. 
 
 The ministerial office of the coroner is only as the sheriff's 
 substitute. For when just exception can be taken to the sher- 
 iff, for suspicion of partiality (as that he is interested in the 
 suit, or of kindred to either plaintiff or defendant), the process 
 must then be awarded to the coroner, instead of the sheriff, for 
 execution of the king's writs.^' 
 
 11 It is no longer the rule in England that the coroner must sit at the very 
 place where the death happened. As it is often unknown where persons 
 lying c^ad have come by their deaths, the inquest may be held by the 
 coroner within whose jurisdiction the body shall be found ; and this inquiry 
 is made by a jury from the county, over whom he is to preside. This jury 
 must consist of not less than twelve and not more than twenty-three, and 
 at least twelve must concur in the verdict. The procedure upon an inquest 
 is fully stated in 50 & 51 Vict. c. 73. Coroners have no jurisdiction now to 
 inquire as to the goods of murderers or as to wrecks. 
 
 1'^ A deodand, in the former English law, was any personal chattel which 
 immediately caused the death of a reasonable creature. It was forfeited to 
 the Crown to be applied to pious uses. This law no longer exists. 
 
 13 Coroners are generally elected in the United States at the same time 
 as sheriffs and hold office for the same periods. Their authority and func- 
 
OF S UBORDINA TE MA CIS TRA TES. 97 
 
 III. The next species of subordinate magistrates, whom I 
 am to consider, are justices of the peace ; the principal uf whom 
 is the custos rotulorum, or keeper of the records of the cimtv. 
 The common law hath ever had a special care and regard foi 
 the conservation of the peace ; for peace is the very end and 
 foundation of civil society. And therefore, before the jjresent 
 constitution of justices was invented, there were peculiar officers 
 appointed by the common law for the maintenance of the public 
 peace. Of these some had, and still have, this power annexed 
 to other offices which they hold ; others had it merely by itself, 
 and were thence named custodes or conservatores pads. Those 
 that were so, virtute officii, still continue ; but the latter sort are 
 superseded by the modern justices. 
 
 The king's majesty is, by his office and dignity royal, the 
 principal conservator of the peace within all his dominions ; 
 *and may give authority to any other ro see the peace [*350 
 kept, and to punish such as break it : hence it is usually called 
 the king's peace. The lord chancellor, or keeper, the lord treas- 
 urer, the lord high steward of England, the lord mareschal, the 
 lord high constable of England, (when any such officers are in 
 being,) and all the justices of the court of king's bench (by vir- 
 tue of their offices) and the master of the rolls (by prescription) 
 are general conservators of the peace throughout the whole 
 kingdom, and may commit all breakers of it, or bind them in 
 recognizances to keep it : the other judges are only so in theii 
 own courts. The coroner is also a conservator of the peace 
 within his own county ; as is also the sheriff ; and both of them 
 
 tions are substantially the same as in England, but are to a large extent de- 
 fined by statute. In New York, for example, it is provided that there shall 
 be four coroners in each county, who shall hold office for three years. They are 
 required to hold an inquest upon receiving notice that a person has been'Slain, 
 or has suddenly died, or has been dangerously wounded ; and it is their duty to 
 summon for the purpose not less than nine nor more than fifteen persons as 
 jurors to hear such inquest. When six or more of such jurors appear they may 
 be sworn and the inquisition held. The coroner may issue subpoenas for wit- 
 nesses, and if the jury find that any murder, manslaughter, or wounding has 
 been committed, he may issue process for the arrest of the person accused, and 
 hold him to answer the charge. (Code of Criminal Procedure, §§ 773-781.) 
 Coroners also are required to serve process, when the sheriff is an interested 
 party in a suit. In other States, there are similar provisions. There is no 
 such ofiBce as that of a coroner under the Federal Government. 
 
 7 
 
98 OF SUBORDINATE MAGISTRATES. 
 
 may take a recognizance or security for the peace. Constables, 
 tithing-men, and the like, are also conservators of the peace 
 within their own jurisdictions ; and may apprehend all breakers 
 of the peace and commit them, till they find sureties for theii 
 keeping it. 
 
 Those that were, without any office, simply and merely con- 
 servators of the peace, either claimed that power by prescrip- 
 tion ; or were bound to exercise it by the tenure of their lands ; 
 or, lastly, were chosen by the freeholders in full county court 
 before the sheriff ; the writ for their election directing them to 
 be chosen " de probioribus et potentioribus comitatus sui in cus- 
 todes pads." But when Queen Isabel, the wife of Edward II., 
 had contrived to depose her husband by a forced resignation of 
 the crown, and had set up his son Edward III. in his place ; 
 this, being a thing then without example in England, it was 
 feared would much alarm the people : especially as the old king 
 was living, though hurried about from castle to castle, till at last 
 he met with an untimely death. To prevent therefore any 
 risings, or other disturbance of the peace, the new king sent 
 writs to all the sheriffs in England, the form of which is pre- 
 *351] served by *Thomas Walsingham, giving a plausible ac- 
 count of the manner of his obtaining the crown ; to wit, that it 
 was done ipsius patris beneplacito : and withal commanding each 
 sheriff that the peace be kept throughout his bailiwick, on pain 
 and peril of disinheritance, and loss of life and limb. And in a 
 few weeks after the date of these writs, it was ordained in par- 
 liament, that, for the better maintaining and keeping of the 
 peace in every county, good men and lawful, which were no 
 maintainers of evil, or barretors in the country, should be as- 
 signed to keep the peace. And in this manner, and upon this 
 occasion, was the election of the conservators of the peace taken 
 from the people, and given to the king ; this assignment being 
 construed to be by the king's permission. But still they were 
 only called conservators, wardens, or keepers of the peace, till 
 the statute 34 Edw. III. c. i, gave them the power of trying 
 felonies ; and then they acquired the more honorable appella- 
 tion of justices. 
 
 These justices are appointed by the king's special commis- 
 sion under the great seal, the form of which was settled by all 
 the judges, a. d. iSgo.f This appoints them all, jointly and 
 
 t The appointment is made by the Lord Chancellor. 
 
OF S UBORDtNA TE MA GIS TRA TES. 99 
 
 severally, to keep the peace, and any two or more of them to 
 inquire of and determine felonies and other misdemeanors : in 
 which number some particular justices, or one of them, are di- 
 rected to be always included, and no business to be done with- 
 out their presence ; the words of the commission running thus, 
 " quorum aliquem vestrum, A. B. C. D. &c, unum esse voluntus ;" 
 whence the persons so named are usually called justices of the 
 quorum. And formerly it was customary to appoint only a 
 select number of justices, eminent for their skill and discretion, 
 to be of the quorum ; but now the practice is to advance almost 
 all of them to that dignity, naming them all over again in the 
 quorum clause, except perhaps only some one inconsiderable 
 person for the sake of propriety ; and no exception is now allow- 
 able, *for not expressing in the form of warrants, &c. [*352 
 that the justice who issued them is of the quorum. When any 
 justice intends to act under this commission, he sues out a 
 writ of dedimus potestatem, from the clerk of the crown in 
 chancery, empowering certain persons therein named to ad- 
 minister the usual oaths to him ; which done, he is at liberty 
 to act. 
 
 Touching the number and qualifications of these justices, it 
 was ordained by statute 18 Edw. III. c. 2, that two or threei of 
 the best reputation in each county, shall be assigned to be keep- 
 ers of the peace. But these being found rather too few for that 
 purpose, it was provided by statute 34 Edw. III. c. i, that one 
 lord, and three or four of the most worthy men in the county, 
 with some learned in the law, shall be made justices in every 
 county. But afterwards the number of justices, through the 
 ambition of private persons, became so large, that it was thought 
 necessary, by statute 12 Ric. II. c. 10, and 14 Ric. II. c. 11, to 
 restrain them at first to six, and afterwards to eight only. But 
 this rule is now disregarded, and the cause seems to be (as 
 Lambard observed long ago), that the growing number of stat- 
 ute laws, committed from time to time to the charge of justices 
 of the peace, have occasioned also (and very reasonably) their 
 increase to a larger number. And, as to their qualifications, the 
 statutes just cited direct them to be of the best reputation, and 
 most worthy men in the county ; and the statute 1 3 Ric. II. c. 7, 
 orders them to be of the most sufficient knights, esquires, and 
 gentlemen of the law. Also by statute 2 Hen. V. st. i, c. 4, and 
 
100 OF SUBORDINATE MAGISTRATES. 
 
 St. 2, c. I, they must be resident in their several counties." And 
 because, contrary to these statutes, men of small substance lad 
 crept into the commission, whose poverty made them both 
 covetous and contemptible, it was enacted by statute i8 Hen. 
 VI. c. II, that no justice should be put in commission if he had 
 not lands to the value of 20I. per annum. And, the rate of 
 money being greatly altered since that time, it is now enacted 
 * 353] by statute 5 Geo. II. c. 18, that every justice, except *as is 
 Lherein excepted, shall have lool. per annum clear of all deduc- 
 tions ; and, if he acts without such qualification, he shall forfeit 
 \00l. This qualification is almost an equivalent to the 2ol.pet 
 annum required in Henry the Sixth's time ; and of this the jus- 
 tice must now make oath. Also it is provided by the act 5 Geo. 
 II. that no practising attorney, solicitor, or proctor, shall be 
 capable of acting as a justice of the peace. ^^ 
 
 As the office of these justices is conferred by the king, so it 
 subsists only during his pleasure; and is determinable, i. By 
 the demise of the crown ; that is, in six months after. But if the 
 same justice is put in commission by the successor, he shall not 
 be obliged to sue out a new dedimus, or to swear to his qualifi- 
 cation afresh : nor, by reason of any new commission, to take 
 the oaths more than once in the same reign. 2. By express 
 writ under the great seal, discharging any particular person from 
 being any longer justice. 3. By superseding the commission by 
 
 1* But now it is provided that justices of two adjoining counties resident 
 in one of them may act in the other, and also that they may act in detached 
 parts of counties, as in cities, towns, &c., having a separate jurisdiction. 
 (11 & 12 Vict., ch. 42 & 43 ; 26 & 27 Vict, ch. 77.) 
 
 ^^ The property qualification now required for the office of justice of the 
 peace, is that the justice (who must be of full age) must have been for two 
 years before his appointment, the occupier of a dwelling-house assessed to 
 the inhabited house duty at a value of not less than ^100 within the county, 
 riding or division, and must have been, during that time, rated to all rates 
 and taxes assessed upon the premises. (38 & 39 Vict., ch. 54 [1875.]) 
 
 It is still the rule that no person is capable of being a justice of the peace 
 for any county in England or Wales (not being a county of a city or of a town) 
 In which he practices as solicitor ; and where a person practices in any city or 
 town, being a county of itself, he is deemed to practice in the county within 
 which such city or town or any pan thereof is situated. (34 & 35 Vict. c. l8.) 
 
 The justices generally serve without compensation, but in the cities and 
 larger towns there are certain justicps called " stipendiary magiitrates," to 
 whom a fixed salary is paid. 
 
OF SUBORDINA TE MA GISTRA TES. loi 
 
 writ of supersedeas, which suspends the power of all the justices, 
 but does not totally destroy it ; seeing it may be revived again 
 by another writ, called 2^. procedendo. 4. By a new commission, 
 which virtually, though silently discharges all the former justices 
 that are not included therein ; for two commissions cannot sub- 
 sist at once. 5. By accession of the office of sheriff or coroner. 
 Formerly it was thought, that if a man was named in any com- 
 mission of the peace, and had afterwards a new dignity conferred 
 upon him, that this determined his office ; he no longer answer- 
 ing the description of the commission : but now it is provided 
 that, notwithstanding a new title of dignity, the justice on whom 
 it is conferred shall still continue a justice. 
 
 The power, office, and duty, of a justice of the peace, depend 
 on his commission, and on the several statutes which *have [*354 
 created objects of his jurisdiction. His commission, first, em- 
 powers him singly to conserve the peace ; and thereby gives him 
 all the power of the ancient conservators at the common law, in 
 suppressing riots and affrays, in taking securities for the peace, 
 and in apprehending and committing felons and other inferior 
 criminals. It also empowers any two or more to hear and deter- 
 mine all felonies and other offences ; which is the ground of their 
 jurisdiction at sessions, of which more will be said in its proper 
 place. And as to the powers given to one, two, or more justices 
 by the several statutes, which from time to time have heaped 
 upon them such an infinite variety of business, that few care to 
 undertake, and fewer understand, the office ; they are such and 
 of .so great importance to the public, that the country is greatly 
 obliged to any worthy magistrate that, without sinister views of 
 his own, will engage in this troublesome service. And therefore 
 if a well-meaning justice makes any undesigned slip in his prac- 
 tice, great lenity and indulgence are shown to him in the courts 
 of law ; and there are many statutes made to protect him in the 
 upright discharge of his office ; which, among other privileges, 
 prohibit such justices from being sued for any oversights without 
 notice beforehand ; and stop all suits begun, on tender made of 
 sufficient amends. But, on the other hand, any malicious or 
 tyrannical abuse of their office is usually severely punished ; and 
 all persons who recover a verdict against a justice, for any wilful 
 or malicious injury, are entitled to double costs.^^ 
 
 '* The principal statute which now regulates this subject is tie 11 & 12 
 
102 OF SUBORDINATE MAGISTRATES. 
 
 It is impossible upon our present plan to enter minutely into 
 the particulars of the accumulated authority thus committed to 
 the charge of these magistrates. I must therefore refer myself 
 at present to such subsequent part of these Commentaries as will 
 in their turns comprise almost evefy object of the justices' juris- 
 diction ; and, in the mean time, recommend to the student the 
 perusal of Mr. Lambard's Eirenarcha, and Dr. Burn's Justice of 
 the Peace, wherein he will find everything relative to this sub- 
 ject, both in ancient and modern practice, collected with great 
 care and accuracy, and disposed in a most clear and judicious 
 method." 
 
 Vict., ch. 44, which provides, among other things, that no action shall be 
 brought against a magistrate for anything done within his jurisdiction, unless 
 it be done maliciously and without reasonable and probable cause ; also that 
 no action shall be brought against a justice for anything done by him in the 
 course of his official duty, more than six months after the act complained of, 
 or without a month's notice. 
 
 " The office of Justice of the Peace has been adopted in the United States 
 from the English practice. Such Justices may be either county or town 
 officers, and upon them is conferred various legal functions of a subordinate 
 character, which are nevertheless of no little importance. They are usually 
 elective officers, though in some States they are appointed by the Governor. 
 Their terms of office, as a general rule, continue for a brief period of years 
 only, as e. g., four or five years. The nature of their duties, privileges and 
 liabilities, is, to a large extent, defined by statute in the several States, as 
 well as the mode of election or appointment, the tenure of office, etc.; and the 
 statutes must be carefully consulted for detailed information upon these 
 points. A general outline of the most common and important duties and 
 functions which devolve upon such officers, both in England and America, 
 may, however, be given with advantage, to supplement the meagre state- 
 ments contained in the text. Their chief functions may be divided into 
 those which are tninisterial, and those which are judicial. Acts or duties 
 are said to be ministerial, when they are definitively fixed and ascertained, 
 and there is not involved the exercise of a judicial discretion to determine the 
 course to be pursued ; as e. g., where a person is under a fixed, imperative 
 obligation to do a certain act which is specially prescribed. Acts or duties 
 are judicial, when they require the exercise of judgment or discretion, as 
 when a judge decides upon the merits of a question presented to him for 
 adjudication. The distinction is of much importance, on account of the 
 difference in the nature of the responsibility incurred in the two classes of 
 cases. Important ministerial functions of Justices of the Peace are such as 
 the following : Issuing warrants for the arrest of persons against whom a 
 criminal accusation has been made, or search warrants authorizing a search 
 to be made upon the premises of a certain person, who is charged with having 
 stolen or embezzled them ; arresting without warrant any person committing 
 a felony or oreach of the peace in their presence ; binding over persons to 
 keep the peace in cases of actual or threatened violence, when a complaint 
 
OF SUBORDINA TE MA GISTRA TES. 103 
 
 •I shall next consider some offices of lower rank than [*355 
 those which have gone before, and of more confined jurisdiction ; 
 but still such as are universally in use through every part of the 
 kingdom. 
 
 IV. Fourthly, then, of the constable. The word constable is 
 
 has been duly presented; issuing subpoenas for witnesses; binding cvet 
 witnesses to testify ; committing or discharging persons accused of crime, 
 upon due examination ; admitting to bail, etc. It is evident that many of 
 these functions are incident to the performance of judicial duties, but their 
 nature is essentially diverse. Justices also have generally authority in the 
 United States to take acknowledgments of deeds, affidavits, etc., and in som** 
 of the States they have, power to celebrate marriages. 
 
 The judicial functions of Justices of the Peace are either civil or crim- 
 inal. Their criminal jurisdiction generally extends to the trial of certain 
 offences of a minor grade, such as vagrancy, idleness, drunkenness, profanity, 
 gaming, and the like, without a jury. This mode of trial is known as a 
 "summary proceeding," and is not regarded as in contravention of Constitu- 
 tional provisions requiring trial by jury and " due process of law," since it 
 existed prior to the establishment of such Constitutions, which are construed 
 with reference to the pre-existing law. In other classes of offences, where 
 jury trial is requisite. Justices usually have power to make a preliminary 
 examination of alleged offenders, and to discharge or commit them, or admit 
 them to bail. Inferior crimes of this kind may also be tried by Justices in a 
 criminal court with a jury, but jurisdiction over the more heinous offences 
 belongs to higher courts. 
 
 In England, there are four courts of Justices of the Peace, having crim- 
 inal jurisdiction — the petty, special, quarter, and general sessions. In the 
 United States, similar courts are sometimes termed " special " or " general 
 sessions," as in New York, while in other cases they are known merely as 
 ••Justices' Courts." 
 
 The civil jurisdiction, which has been quite generally given to Justices' 
 Courts in the United States, usually extends only to cases involving small 
 amounts of money. In New York, ^or instance, the majority of cases so 
 triable must not involve a claim for more than $200. Cases concerning titles 
 to land cannot generally be tried in such courts. 
 
 Foi- injuries done by a Justice in the exercise of judicial functions, he is 
 not liable in a civil action to the party injured, if he had jurisdiction of the 
 cause of action, and acted within it in good faith ; nor (by the law of some 
 States) though his acts were malicious and corrupt. {Jones v. Brown, 54 la. 
 74; Pratt v. Gardner, 2 Cush. 63; Gas Co. v. Donnelly, 93 N. Y. 557; 
 Grove v. Van Duyn, 44 N. J. L. 654; but see Downing v. Herrick, 47 Me. 
 462.) But if he acted wholly without jurisdiction, or if having jurisdiction 
 he exceeded it, knowing the facts which constitute the defect of jurisdiction, 
 he will be civilly responsible. {White v. Morse, 139 Mass. 162; Lange v. 
 Benedict, 73 N. Y. 12, 34; see Vaugkan v. Congdon, 56 Vt. in.) But in the 
 performance of ministerial duties, he is always responsible for any neglect or 
 violation of duty whereby injury is caused to others. (See Evarts v. Kiehl, 
 102 N. Y. 296.) 
 
t04 OF SUBORDINA TE MA CIS TRA TES. 
 
 frequeritly said to be derived from the Saxon, konmz j-oapel, and to 
 signify the support of the king. But, as we borrowed the name 
 as well as the office of constable from the French, I am rather 
 inclined to deduce it, with Sir Henry Spelman and Dr. Cowel, 
 from that language ; wherein it is plainly derived from the Latin 
 comes stabuli, an officer well known in the empire ; so called 
 because, like the great constable of France, as well as the lord 
 high constable of England, he was to regulate all matters of 
 chivalry, tilts, tournaments, and feats of arms, which were per- 
 formed on horseback. This great office of lord high constable 
 hath been disused in England, except only upon great and 
 solemn occasions, as the king's coronation and the like, ever 
 since the attainder of Stafford duke of Buckingham under King 
 Henry VUI. ; as in France it was suppressed about a century 
 after by an edict of Louis XIH. ; but from his office, says Lam- 
 bard, this lower constableship was first drawn and fetched, and 
 is, as it were, a very finger of that hand. For the statute of 
 Winchester, which first appoints them, directs that, for the bettei 
 keeping of the peace, two constables in every hundred and fran- 
 chise shall inspect all matters relating to arms and armor. 
 
 Constables are of two sorts, high constables and petty con- 
 stables. The former were first ordained by the statute of 
 Winchester, as before mentioned : are appointed at the court 
 leets of the franchise or hundred over which they preside, or, in 
 default of that, by the justices at their quarter sessions ; and are 
 *356] removable by the same authority that *appoints them." 
 The petty constables are inferior officers in every town and parish, 
 subordinate to the high constable of the hundred, first instituted 
 about the reign of Edw. III. These petty constables have two 
 offices united in them ; the one ancient, the other modern. 
 Their ancient office is that of headborough, tithing-man, or bors- 
 holder, of whom we formerly spoke, and who are as ancient as 
 the time of King Alfred : their more modern office is that of 
 constable merely ; which was appointed, as was observed, so 
 lately as the reign of Edward HI. in order to assist the high 
 constable. 'And in general the ancient headboroughs, tithing- 
 
 1* Provision has been made by a recent statute for the abolition of the office of 
 high constable, except in certain special cases. (32 & 33 Vict. ch. 47 [1869].) 
 Petty constables have been to a great extent superseded by a county constabulary, 
 having general police powers as peace officers. But constables are still appointed in 
 boroughs. (45 & 46 Vict. c. 50, s. 190.) 
 
OF SUBORDINA TE MA GIS TRA TES. loj 
 
 men, and borsholders, were made use of to serve as petty con- 
 Btablcs ; though not so generally, but that in many places they 
 still continue distinct officers from the constable. They are all 
 chosen by the jury at the court leet ; or, if no court leet be held, 
 are appointed by two justices of the peace. 
 
 The general duty of all constables, both high and petty, as 
 well as of the other officers, is to keep the king's peace in their 
 several districts ; and to that purpose they are armed with very 
 large powers, of arresting and imprisoning, of breaking open 
 houses, and the like ; of the extent of which powers, considering 
 what manner of men are for the most part put into these offices, 
 it is perhaps very well that they are generally kept in ignorance. 
 One of their principal duties, arising from the statute of Win- 
 chester, which appoints them, is to keep watch and ward in their 
 respective jurisdictions. Ward, guard, or custodia, is chiefly ap- 
 plied to the daytime, in order to apprehend rioters, and robbers 
 on the highways ; the manner of doing which is left to the dis- 
 cretion of the justices of the peace and the constable : the 
 hundred being, however, answerable for all robberies committed 
 therein, by daylight, for having kept negligent guard. Watch is 
 properly applicable to the night only, (being called among our 
 Teutonic, ancestors viocht or wacta^zxxdL. it *begins at the [*357 
 time when ward ends, and ends when that begins : for, by the 
 statute of Winchester, in walled towns the gates shall be closed 
 from sunsetting to sunrising, and watch shall be kept in every 
 borough and town especially in the summer season, to apprehend 
 all rogues, vagabonds, and night-walkers, and make them give an 
 account of themselves. The constable may appoint watchmen 
 at his discretion, regulated by the custom of the place ; and 
 these, being his deputies, have for the time being the authority 
 of their principal." But, with regard to the infinite number of 
 other minute duties that are laid upon constables by a diversity 
 of statutes, I must again refer to Mr. Lambard and Dr. Burn ; 
 in whose compilations may be also seen what powers and duties 
 belong to the constable or tithing-man indifferently, and what to 
 the constable only : for the constable may do whatever the tith 
 
 " The duties of constables in regard to keeping watch have been, to some 
 extent, changed by recent legislation ; but the matter is not of sufficient 
 importance to require a special statement of the present law. (See Uroom & 
 Hadley's Comm. i., 430.) 
 
io6 OF SUBORDINA TE MA GISTRA TES. 
 
 ing-man may ; but it does not hold e converse, the tithi..g-man 
 not having an equal power with the constable.^" 
 
 V. We are next to consider the surveyors of the highways 
 Every parish is bound of common right to keep the high roads 
 that go through it in good and sufficient repair; unless by reason 
 of the tenure of lands, or otherwise, this care is consigned to 
 some particular private person. From this burthen no man was 
 exempt by our ancient laws, whatever other immunities he might 
 enjoy : this being part of the trinoda necessitas, to which every 
 man's estate was subject ; viz. expeditio contra hostem, arcium 
 constructio, et potitium reparatio. For, though the reparation of 
 bridges only is expressed, yet that of roads also must be under- 
 stood ; as in the Roman law, ad instructiones reparationesque 
 itinerum etpontium, nullum genus hominum nulliusque dignitatis ac 
 venerationis meritis, cessare opottei. And indeed now, for the 
 most part, the care of the roads only seems to be left to parishes, 
 that of bridges being in great measure devolved upon the county 
 at large, by statute 22 Hen. VIII. c. 5. If the parish neglected 
 these repairs, they might formerly, as they may still, be indicted 
 *358] for such their neglect : but it was not then *incumbent on 
 any particular officer to call the parish together, and set them 
 upon this work ; for which reason, by the statute 2 and 3 Ph. 
 and M. c. 8, surveyors of the highways were ordered to be chosen 
 in every parish. 
 
 These surveyors were originally, according to the statute of 
 
 ^ In the United States, constables are usually town ofScers, elected by the 
 people, holding office for limited terms. Their duties and liabilities are sub- 
 stantially the same as under the English law, except as to keeping watch, 
 and are, to a considerable extent, prescribed by statute. Their duties are 
 of a ministerial character, and they are under the usual liabilities of minis- 
 terial officers. (See note 17, ante^ Among their most important functions, 
 is the service and execution of legal process. Like other peace officers, 
 moreover, they may arrest without warrant in criminal cases, when they have 
 reasonable cause to believe that a felony has been committed by the person 
 taken in custody, though no felony was in fact committed. Felonies are the 
 graver forms of crime, and are distinguished from misdemeanors, which 
 include the inferior and more trivial offences. A felony in New York is any 
 offence punishable capitally, or by imprisonment in State prison, while other 
 crimes are misdemeanors. Some other States have adopted the same dis- 
 tinction. But at common Uw, the distinction was different, and will be 
 noticed hereafter. Constables may also arrest without warrant for a breach of 
 the peace committed in their presence. 
 
OF SUBORDINA TE MA GISTRA TES. 107 
 
 Philip and Mary, to be appointed by the constable and church 
 wardens of the parish ; but now they are constituted by two 
 neighboring justices, out of such inhabitants or others, as are 
 described in statute 13 Geo. III. c. 78, and may have salaries 
 allotted them for their trouble.'^ 
 
 Their office and duty consists in putting in execution a 
 variety of laws for the repairs of the public highways ; that is 
 of ways leading from one town to another : all which are now 
 reduced into one act by statute 13 Geo. Ill; c. 78, which enacts, 
 I. That they may remove all annoyances in the highways, or 
 give notice to the owner to remove them : who is liable to pen- 
 alties on non-compliance. 2. They are to call together all the 
 inhabitants and occupiers of lands, tenements, and heredita- 
 ments within the parish, six days in every year, to labor in 
 fetching materials, or repairing the highways : all persons keep- 
 ing draughts, (of three horses, &c.) or occupying lands, being 
 obliged to send a team for every draught, and for every 50Z. 
 a year which they keep or occupy : persons keeping less than 
 a draught, or occupying less than 50?. a year, to contribute in a 
 less proportion ; and all other persons chargeable, between the 
 ages of eighteen and sixty-five, to work or find a laborer. But 
 they may compound with the surveyors, at certain easy rates 
 established by the act. And every cartway leading to any 
 market-town must be made twenty feet wide at the least, if the 
 fences will permit ; and may be increased by two justices, at the 
 expense of the parish, to the breadth of thirty feet. 3. The sur- 
 veyors may lay out their own money in purchasing materials for 
 repairs in erecting guide-posts, and making drains, and shall be 
 reimbursed by a rate, to be allowed at a special sessions. 4. In 
 case the personal labor of the parish be not sufficient, the sur- 
 veyors, with the consent of the quarter sessions, may levy a rate 
 on the parish, in aid of the personal duty, not exceeding, in any 
 one year, together with the other highway rates, the sum of gd 
 in the pound; for the due application of which they are to 
 account upon oath. As for turnpikes, which are now pretty 
 generally introduced in aid of such rates, and the law relating to 
 them, these depend principally on the particular powers granted 
 n the several road acts, and upon some general provisions which 
 
 •> They are now elected annually by the parishioners ; but in default of such 
 
 rtinn tK#» incttrAc mnv annoint them. 
 
 ^lection the justices may appoint them 
 
I08 OF SUBORDINA TE MA GISTRA TES. 
 
 are extended to all turnpike roads in the kingdom, by statute 13 
 Geo. III. c. 84, amended by many subsequent acts.'^ 
 
 VI. I proceed therefore, lastly, to consider the overseers of 
 the poor ; their original, appointment, and duty. 
 
 The poor of England, till the time of Henry VIII. subsisted 
 entirely upon private benevolence, and the charity of well dis- 
 posed Christians. For, though it appears, by the Mirror, that by 
 the common law the poor were to be "sustained by parsons, 
 rectors of the church, and the parishioners, so that none of them 
 die for default of sustenance;" and though, by the statutes 12 
 Ric. II. c. 7, and 19 Hen. VII. c. 12, the poor are directed to 
 abide in the cities or towns wherein they were born, or such 
 wherein they had dwelt for three years, (which seem to be the 
 first rudiments of parish settlements,) yet, till the statute 27 Hen. 
 VIII. c. 55, I find no compulsory method chalked out for this 
 purpose : but the poor seem to have been left to such relief as 
 the humanity of their neighbors would afford them. The 
 monasteries were, in particular, their principal resource ; and, 
 among other bad effects which attended the monastic institu- 
 tions, it was not perhaps one of the least (though frequently 
 esteemed quite otherwise) that they supported and fed a very 
 numerous and very idle poor, whose sustenance depended upon 
 *360] what was daily distributed in alms at the gates *of the 
 religious houses. But, upon the total dissolution of these, the 
 inconvenience of thus encouraging the poor in habits of indo- 
 lence and beggary was quickly felt throughout the kingdom ; 
 and abundance of statutes were made in the reign of King Henry 
 the Eighth and his children, for providing for the poor and 
 impotent ; which, the preambles to some of them recite, had of 
 late years greatly increased. These poor were principally of two 
 sorts : sick and impotent, and therefore unable to work ; idle 
 and sturdy, and therefore able, but not willing, to exercise any 
 honest employment. To provide in some measure for both of 
 these, in and about the metropolis, Edward the Sixth founded 
 three royal hospitals ; Christ's and St. Thomas's, for the relief of 
 
 •■22 In the various American States, there are special statutory provisions ir 
 regard to the laying out and repair of highways, the appointment or election 
 Df officers for this purpose, the extent and nature of their powers, their lia- 
 bilities, etc., and the statutes of each State must, therefore, be specially 
 consulted. 
 
OF SUBORDINA TE MA GISTRA TES. 109 
 
 the impotent through infancy or sickness ; and Bridewell for the 
 punishment and employment of the vigorous and idle. But 
 these were far from being sufficient for the care of the poor 
 throughout the kingdom at large: and therefore, after many 
 other fruitless experiments, by statute 43 Eliz. c. 2, overseers of 
 the poor were appointed in every parish. 
 
 By virtue of the statute last mentioned, these overseers are 
 to be nominated yearly in Easter-week, or within one month 
 after, (though a subsequent nomination will be valid), by two 
 justices dwelling near the parish. They must be substantial 
 householders, and so expressed to be in the appointment of the 
 justices. 
 
 Their office and duty, according to the same statute, are 
 principally these : first, to raise competent sums for the neces- 
 sary relief of the poor, impotent, old, blind, and such other, 
 being poor and not able to work ; and secondly, to provide work 
 for such as are able and cannot otherwise get employment ; but 
 this latter part of their duty, which, according to the wise regu- 
 lations of that salutary statute, should go hand in hand with the 
 other, is now most shamefully neglected. However, for these 
 joint purposes, they are empowered to *make and levy rates [*361 
 upon the several inhabitants of the parish, by the same act of 
 parliament ; which has been farther explained and enforced by 
 several subsequent statutes. 
 
 The two great objects of this statute seem to have been, i. 
 To relieve the impotent poor and them only. 2, To find em- 
 ployment for such as are able to work ; and this principally, by 
 providing stocks of raw materials to be worked up at their 
 separate homes, instead of accumulating all the poor in one com- 
 mon workhouse ; a practice which puts the sober and diligent 
 upon a level (in point of their earnings) with those who are 
 dissolute and idle ; depresses the laudable emulation of domestic 
 industry and neatness, and destroys all endearing family connec- 
 tions, the only felicity of the indigent. Whereas, if none were 
 relieved but those who are incapable to get their livings, and that 
 in proportion to their incapacity ; if no children were removed 
 from their parents, but such as are brought up in rags and idle- 
 ness ; and if every poor man and his family were regularly fur- 
 nished with employment, and allowed the whole profits of their 
 labor; — a spirit of busy cheerfulness would soon diffuse itself 
 
1 10 OF SUBORDINA TE MA GISTRA TES. 
 
 through every cottage ; work would become easy and habitual, 
 when absolutely necessary for daily subsistence ; and the peasant 
 would go through his task without a murmur, if assured that he 
 and his children, when incapable of work through infancy, age, 
 or infirmity, would then, and then only, be entitled to support 
 from his opulent neighbours. 
 
 This appears to have been the plan of the statute of Queen 
 Elizabeth ; in which the only defect was confining the manage- 
 ment of the poor to small, parochial, districts ; which are fre- 
 quently incapable of furnishing proper work, or providing an able 
 director. However, the laborious poor were then at liberty to 
 seek employment wherever it was to be had : none being obliged 
 to reside in the places of their settlement, but such as were 
 unable or unwilling to work ; and those places of settlement being 
 •362 only such where they *were born, or had made their a^od!',?, 
 originally for three years, and afterwards (in the case of vaga- 
 bonds) for one year only. 
 
 After the Restoration, a very different plan was adopted, which 
 has rendered the employment of the poor more difficult, by 
 authorizing the subdivisions of parishes ; has greatly increased 
 their number, by confining them all to their respective districts ; 
 has given birth to the intricacy of our poor-laws, by multiplying 
 and rendering more easy the methods of gaining settlements ; 
 and, in consequence, has created an infinity of expensive law- 
 suits between contending neighborhoods, concerning those set- 
 tlements and removals. By the statute 13 and 14 Car. II. c. 12, 
 a legal settlement was declared to be gained by birth or by in- 
 habitancy, apprenticeship, or service^ for forty days : within which 
 period all intruders ' were made removable from any parish by 
 two justices of the peace, unless they settled in a tenement of the 
 annual value of \ol. The frauds, naturally consequent upon this 
 provision, which gave a settlement by so short a residence, pro- 
 duced the statute i Jac. II. c. 17, which directed «^ftr^ in writing 
 to be delivered to the parish officers, before a settlement could 
 be gained by such residence. Subsequent provisions allowed 
 other circumstances of notoriety to be equivalent to such notice 
 given ; and those circumstances have from time to time been 
 altered, enlarged, or restrained, whenever the experience of new 
 inconveniences, arising daily from new regulations, suggested the 
 necessity of a remedy. And the doctrine of certificates was in- 
 
OF S UBORDINA TE MA GIS TRA TES. 1 1 1 
 
 vented by way of counterpoise, to restrain a man and his familjr 
 from acquiring a new settlement by any length of residence 
 whatever, unless in two particular excepted cases ; which makes 
 parishes very cautious of giving such certificates, and of course 
 confines the poor at home, where frequently no adequate employ- 
 ment can be had. 
 
 The law of settlements may be therefore now reduced to 
 tne following general heads ; or, a settlement in a parish may be 
 acquired i. By birth : for, wherever a child is first known *to [*363 
 be, that is always prima facie the place of settlement, until some 
 other can be shown. This is also generally the place of settle- 
 ment of a bastard cMld; for a bastard having in the eye of the 
 law no father, cannot be referred to his settlement, as other 
 children may.^' But, in legitimate children, though the place ol 
 birth \>& prima facie the settlement, yet it is not conclusively so ; 
 for there are, 2, Settlements by parentage, being the settlement 
 of one's father or mother : all legitimate children being really 
 settled in the parish where their parents are settled, until they 
 get a new settlement for themselves. A new settlement may 
 be acquired several ways ; as, 3, By marriage. For a woman 
 marrying a man that is settled in another parish changes her 
 own settlement : the law not permitting the separation of husband 
 and wife. But if the man has no settlement, hers is suspended 
 during his life, if he remains in England and is able to maintain 
 her ; but in his absence, or after his death, or during perhaps, his 
 inability, she may be removed to her old settlement. The other 
 methods of acquiring settlements in any parish are all reducible 
 to this one, of forty days' residence therein ; but this forty days' 
 residence (which is construed to be lodging or lying there) must 
 not be by fraud, or stealth, or in any clandestine manner ; but 
 made notorious by one or other of the following concomitant 
 circumstances. The next method therefore of gaining a settle- 
 ment is, 4, By forty days' residence, and notice. For if a stran- 
 ger comes into a parish, and delivers notice in writing of his 
 place of abode, and number of his family, to one of the overseers 
 (which must be read in the church and registered,) and resides 
 
 " But it is provided by the act, 39 & 40 Vict. c. 61, that no person shall bo 
 deemed to derive a settlement from any other person, except that a wife takes 
 that of her husband and a child under sixteen takes that of its father or widowed 
 mother up to that age, and retains it until it gains another 
 
 A bastard child retains the settlement of its mother until it acquires another. 
 
112 OF SUBORDINA TE MA GIS TRA TES. 
 
 theie unmolested for forty days after such notice, he is lef,'ally 
 settled thereby. For the law presumes that such a one at the 
 time of notice is not likely to become chargeable, else he would not 
 venture to give it : or that, in such case, the parish would take care 
 to remove him. But there are also other circumstances equiva- 
 *364] lent to such notice : therefore, S, Rentingiox a year *a tene- 
 ment of the yearly value of ten pounds, and residing forty days 
 ii' the parish, gains a settlement without notice; upon the prin- 
 ciple of having substance enough to gain credit for such a house.^ 
 6, Being charged to and paying the public taxes and levies of the 
 parish ; excepting those for scavengers, highways, and the duties 
 on houses and windows ; and, 7, Executing, when legally appoint- 
 ed, any public parochial office for a whole year in the parish, as 
 churchwarden, &c. are both of them equivalent to notice, and 
 gain a settlement, if coupled with a residence of forty days. 8, 
 Being hired for a year, when unmarried and childless, and serving 
 a year in the same service ; and 9, Being bound an apprentice, 
 give the servant and apprentice a settlement, without notice, in 
 ihat place wherein they serve the last forty days. This is meant 
 to encourage application to trades, and going out to reputable 
 services : 10, Lastly, the having an estate oi one's own, and resid- 
 ir.g thereon forty days, however small the value may be, in case 
 i t be acquired by act of law, or of a third person, as by descent, 
 gift, devise, &c. is a sufficient settlement, but if a man acquire it 
 by his own act, as by purchase, (in its popular sense, in consid- 
 eration of money paid,) then unless the consideration advanced, 
 bona fide, be 30?., it is no settlement for any longer time than 
 the person shall inhabit thereon. He is in no case removable 
 from his own propert} ; but he shall not, by any trifling or fraud- 
 ulent purchase of his own, acquire a permanent and lasting 
 settlement. 
 
 All persons, not so settled, may be removed to their own 
 parishes, on complaint of the overseers, by two justices of the 
 peace, if they shall adjudge them likely to become chargeable to 
 the parish into which they have intruded ; unless they are in a 
 way of getting a legal settlement, as by having hired a house of 
 365] lol. per annum, or living in an *annual service ; for then 
 
 ^ The method of obtaining a settlement by forty days' residence, with 
 notice, hiring and service, has 1 2en abolished and other methods established 
 by statute. The poor laws stated in the text have been much changed by mod- 
 ern English statutes (See 39 h 40 Vict. u. 6i.) 
 
OF S UBORDINA TE MA GIS TRA TES. 1 1 3 
 
 they are not removable. And in all other cases, if the parish 
 to which they belong will grant them a certificate, acknowledg 
 ing them to be their parishioners, they cannot be removed merely 
 because likely to become chargeable, but only when they become 
 actually chargeable. But such certificated person can gain no 
 settlement by any of the means above mentioned, unless by 
 renting a tenement of lol. per annum, or by serving an annual 
 office in the parish, being legally placed therein ; neither can an 
 apprentice or servant to such certificated person gain a settlement 
 by such their service. 
 
 These are the general heads of the laws relating to the poor, 
 which, by the resolutions of the courts of justice thereon within 
 a century past, are branched into a great variety. And yet, not- 
 withstanding the pains that have been taken about them, they 
 still remain very imperfect, and inadequate to the purposes 
 they are designed for : a fate that has generally attended most 
 of our statute laws, where they have not the foundation of the 
 common law to build on. When the shires, the hundreds, and 
 the tithings, were kept in the same admirable order in which 
 they, were disposed by the great Alfred, there were no persons 
 idle, consequently none but the impotent that needed relief : and 
 the statute of 43 Eliz. seems entirely founded on the same prin- 
 ciple. But when the excellent scheme was neglected and de- 
 parted from, we cannot but observe with concern what miserable 
 shifts and lame expedients have from time to time been adopted, 
 in order to patch up the .flaws occasioned by this neglect. There 
 is not a more necessary or more certain maxim in the frame and 
 constitution of society, than that every individual must contrib- 
 ute his share in order to the well-being of the community : and 
 surely they must be very deficient in sound policy, who suffer 
 one half of a parish to continue idle, dissolute, and unemployed ; 
 and ct length are amazed to find, that the industry of the other 
 half is not able to maintain the whole.'^ 
 
 ^ There are systems of poor laws in various American States, providing 
 for the care and support of the poor and necessitous. Such statutes differ 
 (greatly in the scope and nature of their provisions,^end must therefore be 
 particularly referred to. 
 8 
 
114 OF THE PEOPLE, WHETHER ALIENS, 
 
 CHAPTER III. 
 
 [bL. COMM. — BOOK I. CHAP. X.] 
 Of The People, whether Aliens, Denizens, or Natizes. 
 
 Having, in the preceding chapters, treated of persons as 
 they stand in the public relations of magistrates, I now proceed 
 to consider such persons as fall under the denomination of the 
 people. And herein all the inferior and subordinate magistrates 
 treated of in the last chapter are included. 
 
 The first and most obvious division of the people is into 
 aliens and natural-born subjects. Natural-born subjects are such as 
 are born within the dominions of the crown of England ; that is, 
 within the ligeance, or, as it is generally called, the allegiance of 
 the king ; and aliens, such as are born out of it. Allegiance is the 
 tie, or ligainen, which binds the subject to the king, in return for 
 that protection which the king affords the subject. The thing itself, 
 or substantial part of it, is founded in reason and the nature of 
 government ; the name and the form are derived to us from our 
 Gothic ancestors. Under the feudal system, every owner of lands 
 held them in subjection to some superior or lord, from whom or 
 whose ancestors the tenant or vassal, had received them ; and 
 there was a mutual trust or confidence subsisting between the lord 
 and vassal, that the lord should protect the vassal in the enjoyment 
 of the territory he had granted him and, on the *other hand, that 
 *367] the vassal should be faithful to the lord, and defend him 
 against all his enemies. This obligation on the part of the 
 vassal was called fidelitas, or fealty; and an oath of fealty 
 was required, by the feudal law, to be taken by all tenants of 
 their landlord, which is couched in almost the same terms as 
 our ancient oath of allegiance ; except that in the usual oath of 
 fealty there was frequently a saving or exception of the faith 
 due to a superior lord by name, under whom the landlord him- 
 self was perhaps only a tenant or vassal. But when the ac- 
 knowledgment was made to the absolute superior himself, who 
 was vassal to no man, it was no longer called the oath of fealtv. 
 
DENIZENS, OR NATIVES. 115 
 
 but the oath of allegiance; and therein the tenant swore to 
 bear faith to his sovereign lord, in opposition to all men, without 
 any saving or exception : " contra otnnes homines fidelitaiem fecit! 
 Land held by this exalted species of fealty was called feudum 
 ligiunt, a liege fee ; the vassals homines ligii, or liege men ; and 
 the sovereign their dominus ligius, or liege lord. And when sov- 
 ereign princes did homage to each other, for lands held under 
 their respective sovereignties, a distinction was always made be- 
 tween simple homage, which was only an acknowledgment of 
 tenure and liege homage, which included the fealty before-men- 
 tioned, and the services consequent upon it. Thus when our 
 Edward III. in 1329, did homage to Philip VI. of France for his 
 ducal dominions on that continent, it was warmly disputed of 
 what species the homage was to be, whether liege or simple 
 homage. But with us in England, it becoming a settled prin- 
 ciple of tenure that all lands in the kingdom are holden of the 
 king as their sovereign and lord paramount, no oath but that of 
 fealty could ever be taken to inferior lords, and the oath of al- 
 legiance was necessarily confined to the person of the king alone. 
 By an easy analogy, the term of allegiance was soon brought to 
 signify all other engagements which are due from subjects to 
 their prince, as well as those duties which were simply and mere- 
 ly territorial. And the oath of allegiance, as administered for 
 "upwards of six hundred years, contained a promise " to be [*368 
 true and faithful to the king and his heirs, and truth and faith 
 to bear of life and limb and terrene honor, and not to know or 
 hear of any ill or damage intended him, without defending him 
 therefrom." Upon which Sir Matthew Hale makes this remark, 
 that it was short and plain, not entangled with long or intricate 
 clauses or declarations, and yet is comprehensive of the whole duty 
 from the subject to his sovereign. But at the revolution, the terms 
 of this oath being thought perhaps to favor too much the notion of 
 non-resistance, the present form was introduced by the convention 
 parHament which is more general and indeterminate than the for- 
 mer ; the subject only promising" that he will be faithful and bear 
 true allegiance to the king," without mentioning " his heirs," or 
 specifying in the least wherein that allegiance consists. The oath 
 of supremacy is principally calculated as a renunciation of the 
 pope's pretended authority ; and the oath of abjuration, introduced 
 in the reign 0' King William, very amply supplies the loose and 
 
u6 OF THE PEOPLE, WHETHER AL ^ENS, 
 
 general texture of the oath of allegiance ; it recognizing the righl 
 of his majesty, derived under the act of settlement ; engaging 
 to support him to the utmost of the juror's power ; promising to 
 disclose all traitorous conspiracies against him ; and expressly re- 
 nouncing any claim of the descendants of the late pretender, in 
 as clear and explicit terms as the English language can furnish. 
 This oath must be taken by all persons in any office, trust, or 
 employment ; and may be tendered by two justices of the peace 
 to any person whom they shall suspect of disaffection. And 
 the oath of allegiance may be tendered to all persons above the 
 age of twelve years, whether natives, denizens, or aliens, either 
 in the court-leet of the manor, or in the sheriff's tourn, which is 
 the court-leet of the county.* 
 
 But, besides these express engagements, the law also holds 
 that there is an implied, original, and virtual allegiance, 
 •369] owing from every subject to his sovereign, antecedently * 
 to any express promise ; and although the subject never swore 
 any faith or allegiance in form. For as the king, by the very 
 descent of the crown, is fully invested with all the rights, and 
 bound to all the duties of sovereignty, before his coronation ; so 
 the subject is bound to his prince by an intrinsic allegiance, 
 before the superinduction of those outward bonds of oath, hom- 
 age, and fealty ; which were only instituted to remind the sub- 
 ject of this his previous duty, and for the better securing its 
 performance. The formal profession, therefore, or oath of 
 subjection, is nothing more than a declaration in words of what 
 was before implied in law. Which occasions Sir Edward Coke 
 very justly to observe, that "all subjects are equally bounden to 
 their allegiance as if they had taken the oath ; because it is 
 written by the finger of the law in their hearts, and the taking 
 of the corporeal oath is but an outward declaration of the same." 
 The sanction of an oath, it is true, in case of violation of duty, 
 
 1 Modern statutory changes have removed the barriers which these oaths 
 placed in the way of men who dissented from the tenets of the Established 
 Church, and who were thus debarred from accepting office. The oath of allegi- 
 ance is now in the following form : " I, , do swear that I will be faithful and 
 
 bear true allegiance to Her Majesty Queen Victoria, her heirs and successors, 
 according to law. So help me God." This form of oath has taken the place 
 of the former oaths of allegiance, of abjuration, and of supremacy. In this 
 country public officers of the United States must take an oath to support the 
 constitution and bear true faith and allegiance. (U. S. Rev. St. § 1757.) 
 
DENIZENS, OR NATIVES. \ij 
 
 makes the guilt still more accumulated, by superadding perjury 
 to treason : but it does not increase the civil obligation to Joyalty ; 
 it only strengthens the social tie by uniting it with that of religion. 
 
 Allegiance, both express and implied, is however distin- 
 guished by the law into two sorts or species, the one natural, the 
 other local ; the former being also perpetual, the latter temoorary. 
 Natural allegiance is such as is due from all men born witma the 
 king's dominions immediately upon their birth. For, immediately 
 upon their birth, they are under the king's protection ; at a time, 
 too, when (during their infancy) they are incapable of protecting 
 themselves. Natural allegiance is therefore a debt of gratitude ; 
 which cannot be foiTeited, cancelled, or altered by any change of 
 time, place, or circumstance, nor by anything but the united 
 concurrence of the legislature. An Englishman who removes 
 to France, or to China, owes the same allegiance *to the [*370 
 king of England there as at home, and twenty years hence as 
 well as now. For it is a principle of universal law, that the 
 natural-born subject of one prince cannot by any act of his own, 
 no, not by swearing allegiance to another, put off or discharge 
 his natural allegiance to the former : for this natural allegiance 
 was intrinsic, and primitive, and antecedent to the other ; and 
 cannot be divested without the concurrent act of that prince to 
 whom it was first due. Indeed the natural-born subject of one 
 prince, to whom he owes allegiance, may be entangled by sub- 
 jecting himself absolutely to another : but it is his own act that 
 brings him into these straits and difficulties, of owing service to 
 two masters ; and it is unreasonable that, by such voluntary act 
 of his own, he should be able at pleasure to unloose those bands 
 by which he is connected to his natural prince. 
 
 Local allegiance is such as is due from an alien, or strangei 
 born, for so long time as he continues within the king's domin- 
 ion and protection : and it ceases the instant such stranger 
 transfers himself from this kingdom to another. Natural al- 
 legiance is therefore perpetual, and local temporary only ; and 
 that for this reason, evidently founded upon the nature of govern- 
 ment, that allegiance is a debt due from the subject, upon an 
 implied contract with the prince, that so long as the one affords 
 protection, so long the other will demean himself faithfully. As 
 therefore the prince is always under a constant tie to protect his 
 natural-born subiects. at all times and in all countries, for this 
 
Ii8 OF THE PEOPLE, WHETHER ALIENS, 
 
 reason their allegiance due to him is equally universal and per- 
 manent. But, on the other hand, as the prince affords his pro- 
 tection to an alien, only during his residence in this realm, the 
 allegiance of an alien is confined, in point of time, to the duration 
 of such his residence, and, in point of locality, to the dominions 
 of the British empire. From which considerations Sir Matthew 
 Hale deduces this consequence, that though there be an usurper 
 of the crown, yet it is treason for any subject, while the usurper 
 *371] is in full possession of the sovereignty, to *practise any- 
 thing against his crown and dignity : wherefore, although the 
 true prince regain the sovereignty, yet such attempts against 
 the usurper (unless in defence or aid of the rightful king) have 
 been afterwards punished with death ; because of the breach of 
 that temporary allegiance, which was due to him as king de facto. 
 And upon this footing, after Edward IV. recovered the crown, 
 which had long been detained from his house by the line of Lan- 
 caster, treasons committed against Henry VI. were capitally pun- 
 ished, though Henry had been declared an usurper by parliament. 
 
 This oath of allegiance, or rather the allegiance itself, is bi-ld 
 to be applicable not only to the political capacity of the king, or 
 regal office, but to his natural person, and blood-royal ; and tor 
 the misapplication of their allegiance, viz., to the regal capacity 
 or crown, exclusive of the person of the king, were the Spencers 
 banished in the reign of Edward II. And from hence arose 
 that principle of personal attachment, and affectionate loyalty, 
 which induced our forefathers (and, if occasion required, would 
 doubtless induce their sons) to hazard all that was dear to them, 
 hf e, fortune, and family, in defence and support of their liege lord 
 and sovereign. 
 
 This allegiance then, both express and implied, is the duty 
 of all the king's subjects, under the distinctions here laid 
 down, of local and temporary, or universal and perpetual. Their 
 rights are also distinguishable by the same criterions of time and 
 locality ; natural-born subjects having a great variety of rights, 
 which they acquire by being born within the king's ligeance, and 
 can never forfeit by any distance of place or time, but only by 
 their own misbehavior : the explanation of which rights is the 
 principal subject of the two first books of these Commentaries. 
 The same is also in some degree the case of aliens ; though 
 their rights are much more circumscribed, being acquired only 
 
DENIZENS, OR NATIVES. 119 
 
 by residence here, and lost whenever they remove. 1 shall 
 however here endeavor to chalk out some of the principal lines, 
 whereby *they are distinguished from natives, descending [*372 
 to farther particulars when they come in course. 
 
 An alien born may purchase lands, or other estates : but not 
 for his own use, for the king is thereupon entitled to them.'' If 
 
 s By the common law, there are two methods of acquiring real property, 
 viz., by purchase and by descent. The word "purchase" here, however, 
 is not used in its ordinary sense, but with a peculiar technical meaning, by 
 which it denotes every other mode of acquisition than by descent ; it includes, 
 therefore, both conveyance and devise. As regards both these modes of ac- 
 quisition by an alien, tlje common-law rule is the same, — that the alien can 
 hold the property as against all parties but the State ; but that the State 
 may deprive him of i.t by a proceeding which is technically termed an " in- 
 quest of oiBce," or " office found." This is an investigation made by the 
 proper public officer, together with a jury ; and a finding by such jury that the 
 owner is an alien vests the property immediately in the Crown or 
 State. In some of the United States, the proceeding to forfeit an alien's land 
 is an action instituted by the attorney-general of the State. (See Munro v. 
 Merchant, 28 N. Y. 9; W'adsworth v. Wadsworth, 12 N. Y. 376; Gouverneur 
 V. Robertson, 1 1 Wheat. 332.) But aliens cannot take real property by descent, 
 and do not even obtain a defeasible title thereby, so that no " inquest of office " 
 is necessary. Nor can a citizen inherit land from an alien, nor one citizen 
 from another, if it is necessary to derive title through an alien. Thus a 
 citizen grandson could not inherit from a citizen grandfather, if the inter- 
 mediate son was an alien. These rules were adopted in the United States 
 from England as a part of their common-law, but have been to a large extent 
 changed in both countries by. statute, Thus by a recent English statute it is 
 provided, that "real and personal property of every description, maybe 
 taken, acquired, held, and disposed of by an alien in the same manner in all 
 respects as by a natural-born British subject ; and a title to real and personal 
 property of every description may be derived through, from, or in succession 
 to an alien, in the same manner in all respects as through, from, or in succes- 
 sion to a natural-born British subject." (33 Vict., ch. 14, [1870.]) In a 
 number of the American States, also, the disabilities of aliens in regard to 
 the acquisition and transmission of real property have been removed, either 
 in whole or in part, by statutory provisions. These provisions are very 
 diverse, some States having been more liberal in their legislation upon this 
 subject than others, and the statutes must be specially consulted. 
 
 Aliens are also placed under certain political disabilities. Thus in the 
 English statute just referred to, it is declared that the .provisions in regard 
 to holding property " shall not qualify an alien for any office, or for any 
 municipal, parliamentary, or other franchise." So in the United States they 
 are ineligible to public office and have no right to vote. They may, how- 
 ever, become naturalized and thus remove their disabilities to a greater or 
 less extent. (See post, note 4.) 
 
130 OF THE PEOPLE, WHETHER ALIENS, 
 
 an alien could acquire a permanent property in lands, he must 
 owe an allegiance, equally permanent with that property, to the 
 king of England, which would probably be inconsistent with 
 that which he owes to his own natural liege lord : besides that 
 thereby the nation might in time be subject to foreign influence, 
 and feel many other inconveniences. Wherefore by the civil 
 law such contracts were also made void : but the prince had 
 no such advantage of forfeiture thereby, as with us in England. 
 Among other reasons which might be given for our constitution, 
 it seems to be intended by way of punishment for the alien's 
 presumption, in attempting to acquire any landed property ; 
 for the vendor is not affected by it, he having resigned his right 
 and received an equivalent in exchange. Yet an alien may 
 acquire a property in goods, money, and other personal estate, 
 or may hire a house for his habitation : for personal estate is 
 of a transitory and movable nature ; and, besides, this indulgence 
 to strangers is necessary for the advancement of trade. Aliens 
 also may trade as freely as other people, only they are subject 
 to certain higher duties at the custom-house ; and there are also 
 some other obsolete statutes of Hen. VIII. prohibiting alien 
 artificers to work for themselves in this kingdom; but it is 
 generally held that they were virtually repealed by statute 5 
 Eliz. c. 7. Also an alien may bring an action concerning per- 
 sonal property, and may make a will, and dispose of his personal 
 estate : not as it is in France, where the king at the death of an 
 alien is entitled to all he is worth, by the droit d'atihaine or jus 
 albinatus, unless he has a peculiar exemption. When I mention 
 these rights of an alien, I must be understood of alien friends 
 only, or such whose countries are in peace with ours ; for alien 
 •373] enemies have no *rights, no privileges, unless by the king's 
 special favor, during the time of of war. 
 
 When I say, that an alien is one who is born out of the king's 
 dominions, or allegiance, this also must be understood with some 
 restrictions. The common law, indeed, stood absolutely so, with 
 only a very few exceptions ; so that a particular act of parlia- 
 ment became necessary after the restoration, " for the naturaliza- 
 tion of children of his majesty's English subjects, born in foreign 
 countries during the late troubles." And this maxim of the law 
 proceeded upon a general principle, that every man owes natural 
 allegiance whei? he is born, and can-jt owe two such alle- 
 
DENIZENS, OR NATIVES. 121 
 
 glances, or serve two masters, at once. Yet the children of the 
 king's ambassadors born abroad were always held to be natural 
 subjects : for as the father, though in a foreign country, owes 
 not even a local allegiance to the prince to whom he is sent ; so, 
 with regard to the son also, he was held (by a kind of postlim- 
 inium) to be born under the king of England's allegiance, repre- 
 sented by his father the ambassador. To encourage also foreign 
 commerce, it was enacted by statute 25 Edw. III. st. 2, that all 
 children born abroad, provided both their parents were at the 
 time of his birth in allegiance to the king, and the mother had 
 passed the seas by her husband's consent, might inherit as if 
 born in England; and accordingly it hath been so adjudged in 
 behalf of merchants. But by several more modern statutes 
 these restrictions are still farther taken off : so that all children, 
 born out of the king's ligeance, whose fathers (or grandfathers 
 by the father's side) were natural-born subjects, are now deemed 
 to be natural-born subjects themselves to all intents and pur- 
 poses ; unless their said ancestors were attainted, or banished 
 beyond sea, for high treason ; or were at the birth of such chil- 
 dren in the service of a prince at enmity with Great Britain.' 
 Yet the grandchildren of such ancestors shall not be privileged 
 in respect of the alien's duty, except they be Protestants, and 
 
 ^It has been a much controverted question whether, if a citizen 
 have a child born in a foreign country, such child is not, by the conv 
 mon-law and irrespective of statute, also a citizen of his father's native coun- 
 try by reason of parentage. (See Ludlam v. Ltidlam, 26 N. Y. 356, and an 
 article in 2d American Law Register. 193.) But this vexed question is now 
 settled by statutory provisions. A statute of the United States, similar in 
 the main to those of England, provides that " all children heretofoie born or 
 hereafter born out of the limits and jurisdiction of the United States, whose 
 fathers were or may be at the time of their birth citizens thereof, are de- 
 clared to be citizens of the United States ; but the rights of citizenship shall 
 not descend to children whose fathers never resided in the United States. ' 
 This statute was passed in 1855. (See U. S. Rev. St., p. 351.) 
 
 By a recent English statute, it is provided that any natural-born subject 
 who, at the time of his birth became, under the law of any foreign State, 
 also a subject of such State, may, if of full age and not under any disaliility, 
 (such as idiocy, lunacy, or being a married woman) make a declaration of 
 alienage in a manner prescribed, and thus cease to be a British subject. So 
 any person born in a foreign country of a father being a British subject, may 
 under the same circumstances make a declaration of alienage with the same 
 iffecl. (33 Vict., ch. 14 [1870.]) 
 
£22 OF THE PEOPLE, WHETHER ALIENS, 
 
 actually reside within the realm ; nor shall be enabled to claim 
 any estate or interest, unless the claim be made' within five 
 years after the same shall accrue. 
 
 The children of aliens, born here in England, are, generally 
 *374] speaking, natural-born subjects, and entitled to all the*priv- 
 ileges of such. In which the constitution of France differs from 
 ours ; for there, by their jus albinatus, if a child be born of 
 foreign parents, it is an alien. 
 
 A denizen is an alien born, but who has obtained ex dona- 
 tiotie regis letters-patent to make him an English subject : a 
 high and incommunicable branch of the royal prerogative. A 
 denizen is in a kind of middle state, between an alien and nat- 
 ural-born subject, and partakes of both of them. He may take 
 lands by purchase or devise, which an alien may not ; but cannot 
 take by inheritance : for his parent, through whom he milst 
 claim, being an alien, had no inheritable blood ; and therefore 
 could convey none to the son. And, upon a like defect of hered- 
 itary blood, the issue of a denizen, born before denization, 
 cannot inherit to him ; but his issue after may. A denizen is 
 not excused from paying the alien's duty, and some other mer- 
 cantile burthens. And no denizen can be of the privy council, or 
 either house of parliament, or have any office of trust, civil or mil- 
 itary, or be capable of any grant of lands, &c. from the crown. 
 
 Naturalization cannot be performed but by act of parliament : 
 for by this an alien is put in exactly the same state as if he had 
 been born in the king's ligeance ; except only that he is incapa- 
 ble, as well as a denizen, of being a member of the privy coun- 
 cil, or parliament, holding offices, grants, &c.* No bill for nat- 
 uralization can be received in either house of parliament with- 
 out such disabling clause in it : nor without a clause disabling 
 the person from obtaining any immunity in trade thereby in any 
 
 * A comprehensive statute has recently been passed in England, provid- 
 ing for the naturalization of foreigners, which exhibits the same liberal 
 policy which has characterized the legislation of the United States, and of 
 some other countries in modern times, upon this important subject. It pro- 
 vides that an alien who has resided in the United Kingdom, or has been in 
 the service of the Crown, for not less than five years, and intends when 
 naturalized to continue such residence or service, may apply to a principal 
 Secretary of State for a certificate of naturalization. He must adduce evi- 
 dence of such residence or service, and of his intention to reside or serve ; 
 and the Secretary may then, with or without assigning a reason, give or with- 
 
DENIZENS, OR NATIVES. 123 
 
 foreign country, unless he shall have resided in Britain for seyen 
 years next after the commencement of the session in which he 
 is naturalized. Neither can any person be naturalized or re- 
 hold a certificate, as he thinks most conducive to the public good. The cer- 
 tificate takes effect upon the alien's taking the oath of allegiance. A natural- 
 ized subject is entitled to all political and other rights, powers and privileges, 
 and is subject to all obligations of a natural-born British subject, except when 
 he is in the country of which he was previously a subject if he still remains 
 a subject of that country by its laws. The status of married women and 
 infant children, in regard to nationality, follows that of the husband and 
 father. This statute, however, does not affect the grant of letters of deniza- 
 tion by the sovereign. (33 Vict., ch. 14.) 
 
 In the United States, the Federal Constitution confers upon Congress au- 
 thority " to establish an uniform rule of naturalization." The power to legis- 
 late upon this subject, therefore appertains exclusively to Congress and cannot 
 be exercised by the States. The law at present (1890) in force is as follows : — 
 
 1st. The alien must declare on oath before a U. S. circuit or district court, 
 or a district or supreme court of the Territories, or a court of record of any of 
 the States, or to a clerk of either of these courts, two years prior to his admis- 
 sion, that it is bona fide his intention to become a citizen of the United States, 
 and to renounce allegiance to any foreign State, and particularly to that State 
 of which he is then a citizen or subject. 
 
 2d. He shall, at the time of his application to be admitted, make oath before 
 the court that he will support the U. S. Constitution, and that he renounces all 
 foroign allegiance. 
 
 3d. He must give satisfactory evidence of residence within the U. S. for at 
 least five years, and within the State or Territory where the Court is held, for 
 at least one year ; and that he has behaved during that time as a man of good 
 moral character, attached to the principles of the U. S. Constitution, and well 
 disposed to the good order and happiness of the same ; but the oath of the 
 applicant is not sufficient to prove his residence. 
 
 4th. He must renounce any hereditary title or order of nobility he may be 
 entitled to in the foreign country. 
 
 The provisions in regard to minors are as follows : Any alien who has re- 
 sided in the U. S. from his i8th to his 21st birthday may, after a residence 
 therein of five years (including the three of minority), be naturalized, without 
 making the preliminary declaration otherwise required ; but he must make the 
 usual declaration required at the time of admission, and must further declare 
 on oath, and prove, that for two years previous it has been his bona fide in- 
 tention to become a citizen, and must comply with the other requisites of 
 the naturalization law. 
 
 Minor children, residing within the United States at the time of the natur- 
 alization of their parents, thereby become themselves citizens. 
 
 Any woman who marries a citizen, and who might herself be lawfully 
 naturalized, is deemed a citizen. 
 
 If an alien husband dies after having made the preliminary declaration 
 
124 OF THE PEOPLE, WHETHER ALIENS, 
 
 Btored in blood unless he hath received' the sacrament of the 
 Lord's supper witliin one month before the bringing in of the 
 Dill ; and unless he also takes the oaths of allegiance and suprem- 
 acy in the presence of the parliament. But these provisions 
 have been usually dispensed with by special acts of parliament, 
 previous to bills of naturalization of any foreign princes or 
 princesses. 
 
 *375] *These are the principal distinctions between aliens, 
 denizens, and natives : ^ distinctions, which it hath been fre- 
 quently endeavored since the commencement of this century to 
 lay almost totally aside, by one general naturalization-act for all 
 foreign protestants. An attempt which was once carried intc 
 
 of intention (see clause ist above), his widow and children are considered 
 citizens upon taking the oaths prescribed by law. 
 
 These rules apply to free white aliens and to aliens of African nativity or 
 descent ; but alien enemies are not admitted to citizenship. 
 
 There are also special provisions in regard to the naturalization of seamen, 
 and of aliens enlisting in the U. S. Array. (See for further details, TJ. S. Rev. 
 Stats., pp. 331, 380.) Chinese cannot become citizens. (Act of Congress, Ma; 
 6, 1882, § 14.) 
 
 Naturalized citizens enjoy, with but slight exceptions, the same rights and 
 privileges as native born citizens. By the recent amendments to the Con- 
 stitution, both classes of citizens are placed on the same footing. Thus it 
 is declared that " all persons born or naturalized in the United States, and 
 subject to the jurisdiction thereof, are citizens of the United States, and of 
 the State wherein they reside. No State shall make or enforce any law wliich 
 shall abridge the privileges or immunities of citizens of the United States ; 
 nor shall any State deprive any person of life,liberty or property, without due 
 process of law, nor deny to any person the equal protection of the laws." (14th 
 Am't.) And further, " that the rights of citizens of the United States to vote 
 shall not be denied or abridged by the United States, or by any .State on ac- 
 count of race, color or previous condition of servitude." (iSth Am't.) But 
 naturalized citizens are not eligible to the office of President or Vice- 
 President, nor in some States, to the office of Governor. 
 
 "^ It is important to gain a correct understanding of the meaning of the term 
 "citizen," since it is sometimes erroneously supposed that citizenship in the 
 United States involves the right to exercise the elective franchise. A citizen 
 may be defined as one who owes apermanent allegiance to the State. Therefore 
 married women, children, the insane, are citizens, although they have no right 
 to vote ; and the same is true of other non-voting members of the com- 
 munity. Citizenship may depend either upon birth within a country, or, as has 
 been seen, upon the fact of parentage, or upon naturalization. It is true 
 that while slavery existed in this country, slaves were not deemed to be 
 citizens ; and it was held in the famous Dred Scott case (19 Howard, U. S. 
 39) that an emancipated negro was not a citizen of a State, but this was 
 because slaves were regarded as articles of property, and depended upoD 
 
DENIZENS, OR NATIVES. 125 
 
 execution by the statute 7 Ann. c. 5 ; but this, after three years' 
 experience of it, was repealed by the statute 10 Ann. c. S, ex- 
 cept one clause, which was just now mentioned, for naturalizing 
 the children of English parents born abroad. However, every 
 foreign seaman, who in time of war serves two years on board an 
 English ship, by virtue of the king's proclamation, is ip«o facto 
 naturalized under the like restrictions as in statute 12 W. Ill, c, 
 2 ; and all foreign protestants, and Jews, upon their residing 
 seven years in any of the American colonies, without being ab- 
 sent above two months at a time, and all foreign protestants 
 serving two years in a military capacity there, or being three 
 years employed in the whale fishery, without afterward absent- 
 ing themselves from the king's dominions for more than one 
 year, and none of them falling within the incapacities declared 
 by statute 4 Geo. II. c. 21, shall be (upon taking the oaths of 
 allegiance and abjuration, or in some cases, an affirmation to the 
 same effect) naturalized to all intents and purposes, as if they 
 had been born in this kingdom ; except as to sitting in parlia- 
 ment or in the privy council, and holding offices or grants of 
 lands, &c. from the crown within the kingdoms of Great Britain 
 or Ireland." They therefore are admissible to all other privi- 
 leges, which protestants or Jews born in this kingdom are en- 
 titled to. What those privileges are, with respect to Jews in 
 particular, was the subject of very high debates about the time 
 of the famous Jew-bill ; which enables all Jews to prefer bills of 
 naturalization in parliament, witliout receivuig the sacrament, as 
 ordained by statute 7 Jac. I., c. 2. It is not my intention to revive 
 this controversy again ; for the act lived only a few montlis, 
 and was then repealed : therefore peace be now to its manes? 
 
 the peculiar legislation and Constitutional provisions in regard to them. The 
 ordinary meaning of the word " citizen," as given above, is that which it bears 
 at common law. But the recent Constitutional amendments declare specifically 
 what classes of persons shall be considered citizens of the United States, and 
 those of the African race are now included. (See these amendments in the 
 previous note.) But Indians not taxed are still deemed not to be citizens. 
 But by Act of Congress of Feb. 8, 1887, citizenship is conferred on Indians 
 accepting lands allotted in severalty and adopting civilized life. 
 
 ' The'various statutes mentioned in this paragraph in regard to Protestants 
 and Jews are now repealed. 
 
 ' Expatriation. — It is evident that, in accordance with the principles of 
 the common-law, as affected by statutes of naturalization, etc., a person may 
 be at the same time a citizen of different States. For, by the common-law 
 
126 OF MASTER AND SERVANT. 
 
 CHAPTER IV. 
 
 [bL. CO mm. — BOOK I. CH. XIV.] 
 
 Of Master and Servant. 
 
 Having thus commented on the rights and duties of persons, 
 as standing in \h.t public relations of magistrates and people, t?e 
 method I have marked out now leads me to consider the rights 
 and duties in private economical relations. 
 
 The three great relations in private life are, i. That of mas- 
 ter and setvant; which is founded in convenience, whereby a man 
 is directed to call in the assistance of others, where his own skill 
 and labor will not be sufficient to answer the cares incumbent 
 upon him. 2. That of husband and wife ; which is founded in 
 nature, but modified by civil society : the one directing man to 
 continue and multiply his species, the other prescribing the man- 
 doctrine of inalienable allegiance, a native-born Englishman would not cease 
 to be a British subject by being naturalized in the United States, although 
 he would thereby become a citizen of the latter country. This condition of 
 the law has led in times past to irritating dissensions and controversies be- 
 tween different nations In order to avoid such causes of difficulty for the 
 future, numerous treaties have, in recent years, been concluded between the 
 various civilized nations, recognizing and sanctioning the right of expatria- 
 tion, as it is termed, — that is, the right of a citizen or subject to throw off en- 
 tirely his former allegiance upon assuming the duty of allegiance to another 
 , country. Such treaties have been made by the United States with Prussia, 
 Russia, Austria, Mexico, and various other nations. These treaties gener- 
 ally provide that a citizen of either of the countries making the treaty, upon 
 becoming naturalized in the other, and residing therein five years, shall be 
 deemed a citizen of the latter country ; but, if he had committed a crime be- 
 fore leaving his own country, he may be punished therefor if he ever returns. 
 So it is provided by the recent English Naturalization Act (33 Vict., ch. 14), 
 that any British subject voluntarily becoming naturalized in a foreign State 
 shall cease to be a British subject, and shall be deemed an alien. 
 
 There is a statute of the United States, passed in 1868, declaring that 
 " the right of expatriation is a natural and inherent right of all people ; " but 
 it is the generally received opinion among jurists that each nation has the 
 right to determine for itself whether its citizens shall be allowed to divest 
 themselves of the duty of allegiance, and that special treaties are therefore 
 the appropriatr means of accomplishing this object. 
 
OF MASTER AND SER VANT. 127 
 
 nei in which that natural impulse must be confined and regulated. 
 3. That of parent and child, which is consequential to that of 
 marriage, being its principal end and design ; and it is by virtue 
 of this relation that infants are protected, maintained, and edu- 
 cated. But, since the parents, on whom this care is primarily 
 incumbent, may be snatched away by death before they have 
 completed their duty, the law has therefore provided a fourth re- 
 lation ; 4. That of guardian and ward, which is a kind of artifi- 
 cial parentage, in order to supply the deficiency, whenever it 
 happens, of the natural. Of all these relations in their order. 
 *In discussing the relation of master and servant, I shall, [*423 
 first, consider the several sorts of servants, and how this relation 
 is created and destroyed ; secondly, the effect of this relation , 
 with regard to the parties themselves ; and, lastly, its effect with 
 regard to other persons. 
 
 I. As to the several sorts of servants : I have formerly ob- 
 served that pure and proper slavery does not, nay cannot, subsist 
 in England : such I mean, whereby an absolute and unlimited 
 power is given to the master over the life and fortune of the 
 slave. And indeed it is repugnant to reason, and the principles 
 ■A natural law, that such a state should subsist any where. The 
 three origins of the right of slavery, assigned by Justinian are 
 all of them built upon false foundations. As, first, slavery is held 
 to arise ^^ jure gentium" from a state of captivity in war; whence 
 slaves are called mancipia, quasi manu capti. The conqueror, 
 say the civilians, had a right to the life of his captive ; and, hav- 
 ing spared that, has a right to deal with him as he pleases. But 
 it is an untrue position, when taken generally, that by the law of 
 nature, or nations, a man may kill his enemy : he has only a right 
 to kill him, in particular cases ; in cases of absolute necessity, 
 for self-defence ; and it is plain this absolute necessity did not 
 subsist, since the victor did not actually kill him, but made him 
 prisoner. War is itself justifiable only on principles of self-pres- 
 ervation ; and therefore it gives no other right over prisoners 
 but merely to disable them from doing harm to us, by confining 
 their persons : much less can it give aright to kill, torture, abuse, 
 plunder, or even to enslave, an enemy, when the war is over. 
 Sines therefore the right of making slaves by captivity depends 
 on a supposed right of slaughter, that foundation failing, the con- 
 sequence drawn from it must fail likewise. But, secondly, it is 
 
[28 OF MASTER AND SERVANT. 
 
 said that slavery may hegva '■'■jure civili ;" when one man sells 
 himself to another. This, if only meant of contracts to serve or 
 *424] work for another, is very *just ; but when applied to strict 
 slavery, in the sense of the laws of old Rome or modern Barbary, 
 is also impossible. Every sale implies a price, a quid pro quo, 
 an equivalent given to the seller in lieu of what he transfers to 
 the buyer : but what equivalent can be given for life, and liberty, 
 both of which, in absolute slavery, are held to be in the master's 
 disposal } His property also, the very price he seems to receive, 
 devolves ipso facto to his master, the instant he becomes his slave. 
 In this case therefore the buyer gives nothing, and the seller re- 
 ceives nothing: of what validity then can a sale be, which de- 
 stroys the very principles upon which all sales are founded ? 
 Lastly, we are told, that besides these two ways by which slaves 
 "■fiunt" or are acquired, they may also be hereditary : " servi 
 nascuntur ; " the children of acquired slaves are jure natures, by 
 a negative kind of birthright, slaves also. But this, being built 
 on the two former rights, must fall together with them. If 
 neither captivity, nor the sale of one's self, can by the law of na- 
 ture and reason reduce the parent to slavery, much less can they 
 reduce the offspring. 
 
 Upon these principles, the law of England abhors, and will 
 not endure the existence of slavery within this nation ; so that 
 when an attempt was made to introduce it, by statute i Edw. VI. 
 c. 3, which ordained, that all idle vagabonds should be made 
 slaves, and fed upon bread and water, or small drink, and refuse 
 meat ; should wear a ring of iron round their necks, arms, or 
 legs ; and should be compelled, by beating, chaining, or other- 
 wise, to perform the work assigned them, were it never so vile ; 
 the spirit of the nation could not brook this condition, even in the 
 most abandoned rogues ; and therefore this statute was repealed 
 m two years afterwards. And now it is laid down, that a slave 
 or negro, the instant he lands in England, becomes a freeman ; 
 that is, the law will protect him in the enjoyment of his person, 
 and his property. Yet, with regard to any right which the mas- 
 ter may have lawfully acquired to the perpetual service of John 
 or Thomas, this will remain exactly in the same state as 
 *425] *before ; for this is no more than the same state of subjec- 
 tion for life, which every apprentice submits to for the space of 
 seven years, or sometimes for a longer term. Henre too it fol 
 
OF MASTER AND SERVANT. 129 
 
 lows, that the infamous and unchristian practice of withholding 
 baptism from negro servants, lest they should thereby gain their 
 liberty, is totally without foundation, as well as without excuse. 
 The, law of England acts upon general and extensive principles: 
 it gives liberty, rightly understood, that is, protection to a Jew, 
 a Turk, or a Heathen, as well as to those who profess the true 
 religion of Christ ; and it will not dissolve a civil obligation be- 
 tween master and servant, on account of the alteration of faith 
 in either of the parties : but the slave is entitled to the same pro- 
 tection in England before, as after, baptism ; and, whatever ser- 
 vice the heathen negro owed of right to his American master, by 
 general not by local law, the same, whatever it be, is he bound 
 to render when brought to England and made a Christian.' 
 
 I. The first sort of servants, therefore, acknowledged by the 
 laws of England, are menial servants ; so called from being intra 
 mamia, or domestics. The contract between them and their mas- 
 ters arises upon the hiring. If the hiring be general, without any 
 particular time limited, the law construes it to be a hiring for a 
 year ; upon a principle of natural equity, that the servant shall 
 serve, and the master maintain him, throughout all the revolutions 
 of the respective seasons, as well when there is work to be done, 
 as when there is not : but the contract may be made for any 
 larger or smaller term.'' All single men between twelve years old 
 
 ^But it was decided in 1772, in the case of James Sommersett, that a 
 heathen negro, when brought to England, owed no service to an American or 
 any otlier master. {Lofffs Rep. i ; 20 State Trials, I.) 
 
 ° It has been held in England that under this class of "menial servants " 
 would be included not only mere domestics, but also a gardener, a groom, 
 or a huntsman ; but not a governess, nor a farm laborer, nor a clerk. The 
 hiring in these cases is subject by custom to the condition that it may be 
 ended by either party,'on giving a month's notice or paying a month's wages; 
 but il the servant is dismissed for misconduct, he is not entitled to a month's 
 wages. But this distinction between menial and other servants does not 
 p-evail in this country, and this rule in regard to a month's notice or wages 
 has no application. Servants of various kinds stand upon the same footing. 
 The term of service is to be determined by the agreement between the par- 
 ties. It the contract is for a term longer than a year, it should be put in 
 writing, or it will be invalid. (Drummond -v. Burrell, 13 Wend. 307.) But 
 even in the case of an oral contract, if the master receives services rendered, 
 and then refuses to go on and complete the contract, the value of the 
 services may be recovered from him upon an implied contract. (Galvin v. 
 Prfntice, 45 N. Y. 162.) The servant may be lawfully discharged before the 
 
130 OF MASTER AND SERVANT. 
 
 and sixty, and married ones under thirty years of age, ant. all 
 single women between twelve and forty, not having any visible 
 livelihood, are compellable by two justices to go out to service in 
 husbandry or certain specific trades, for the promotion of honest 
 industry ; and no master can put away his servant, or servant 
 leave his master, after being so retained, either before or at the 
 end of his term, without a quarter's warning ; unless upon 
 •426] *reasonable cause, to be allowed by a justice of the peace : 
 but they may part by consent, or make a special bargain.' 
 
 2 Another species of servants are called apprentices, (from ap- 
 prendre, to learn,) and are usually bound for a term of years, b)/ 
 deed indented or indentures, to serve their masters, and be main- 
 tained and instructed by them. This is usually done to persons 
 of trade, in order to learn their art and mystery ; and sometimes 
 very large sums are given with them, as a premium for such their 
 instruction : but it may be done to husbandmen, nay to gentlemen 
 and others. And children of poor persons may be apprenticed 
 out by the overseers, with consent of two justices, till twenty-one 
 years of age, to such persons as are thought fitting ; who are also 
 compellable to take them ; and it is held that gentlemen of for- 
 tune, and clergymen, are equally liable with others to such com- 
 pulsion ; for which purposes our statutes have made the inden- 
 
 exijiration of his term for immoral conduct, wilful disobedience of orders, gross 
 incompetence to perform his duty, etc. ; a habit of intoxication, for example, 
 has been held a sufficient cause. {Huntingdon v. Claffin. 38 N. Y. 182.) In 
 such cases, the servant forfeits the wages for the period he has served ; 
 and the effect is the same, if he leaves the service before the end of the 
 terra without reasonable cause. But if he is prevented by jzV^»«jj from com- 
 pleting the contract, he may recover for the value of the services rendered. 
 {Wolfe V. Howes, 20 N. Y. 197.) If the servant is discharged unjustly 
 and without sufficient cause before the expiration of 4iis term, he may treat 
 the contract as rescinded, and bring an action against the master, to recover 
 for the value of the services actually rendered ; or he may sue to recover 
 damages for the breach of the contract, and in this action may recover any 
 amount due for services rendered, and also compensation for the damages 
 sustained by the further breach of the contract in wrongfully dismissing 
 him. {Richardson v. Eagle Works, 78 Ind. 422; Howard v. Daly, 61 N. 
 Y. 362.) But it is the duty of the servant, when so discharged, to endeavor 
 to secure other employment of the same kind, in order to reduce the damages 
 recoverable against his master. {Fuchs v. Koerner, 107 N. Y. 529 ; Jamei 
 V. Allen Co., 44 O. St. 226; Harrington v. Gies, 45 Mich. 374.) 
 * These rules are no longer in force. 
 
OF MA S TER AND SER VANT. 1 3 1 
 
 fures obligatory, even though such parish-apprentice be a minor. 
 Apprentices to trades may be discharged on reasonable cause, 
 either at the request of themselves or masters, at the quartet- 
 sessions, or by one justice, with appeal to the sessions, who may, 
 by the equity of the statute, if they think it reasonable, direct 
 restitution of a ratable share of the money given with the appren 
 tice : and parish-apprentices may be discharged in the same 
 manner, by two justices. But if an apprentice, with whom less 
 than ten pounds hath been given, runs away from his master, he 
 is compellable to serve out his time of absence, or make 
 satisfaction for the same, at any time within seven years after the 
 expiration of his original contract/ 
 
 3. A third species of servants are laborers, who are only hired 
 by the day or the week, and do not live intra mania, as 
 *part of the family ; concerning whom the statutes before [*427 
 cited have made many very good regulations : i. Directing that 
 all persons who have no visible effects may be compelled to 
 work. 2. Defining how long they must continue at work in 
 summer and in winter. 3. Punishing such as leave or desert 
 
 * These rules in regard to apprenticeship have- been, to a considerable 
 extent, altered by various English statutes. In a number of the American 
 States, there are special statutes providing for the binding out of minor chil- 
 dren as apprentices. A brief summary of the regulations in New York 
 will show the general nature of such provisions. It is there provided that 
 the apprenticeship shall be created by written indenture, executed undei 
 seal by the employer of the apprentice, and also by the minor's parent ot 
 guardian and by the minor himself. The indenture must provide that the 
 apprentice will not leave his employer during the term of apprenticeship ; 
 that the employer will furnish suitable board, lodging, and medical attend- 
 ance for the apprentice, will carefully teach him his trade, and at the end 
 of the term, will give a certificate, stating the full service of the apprentice- 
 ship. The term of apprenticeship may be for from three to five years ; (in 
 most States having such laws, it may continue during minority.) If the 
 apprentice leaves the service without cause and refuses to return, or if he 
 wilfuily refuses to serve, the indentures may be cancelled, and he may also 
 be punished by the imposition of certain penalties, such as imprisonment 
 in a house of correction, forfeiture of claims for compensation, &c. If the 
 employer refuses to fulfil his agreement, the apprentice or his parent w 
 guardian may sue him for damages for the breach of contract. (^Laws ol 
 1871, ch. 934.) There are also special provisions for the binding out of 
 sauper children, orphans, etc. It is a general rule that the contract of ap- 
 , renticeship is not assignable by the employer, so as to bind the apprentice 
 to serve the assignee. It creates a personal trust between the parties. 
 
132 OF MASTER AND SERVANT. 
 
 their work. 4. Empowering the justices at sessions, or the 
 sheriff of the county, to settle their wages ; and, 5. Inflicting 
 penalties on such as either give, or exact, more wages than are 
 so settled.^ 
 
 4. There is yet a fourth species of servants, if they may be 
 so called, being rather in a superior, a ministerial, capacity ; 
 such as stewards, factors, and bailiffs : whom, however, the law 
 considers as servants pro tempore, with regard to such of their 
 acts as affect their master's or employer's property. Which 
 leads me to consider — 
 
 II. The manner in which this relation of service affects 
 either the master or servant. And, first, by hiring and service 
 for a year, or apprenticeship under indentures, a person gains a 
 settlement in that parish wherein he last served forty days. In 
 the next place persons serving seven years as apprentices to any 
 trade, have an exclusive right to exercise that trade in any part 
 of England. This law, with regard to the exclusive part of it, 
 has by turns been looked upon as a hard law, or as a beneficial 
 one, according to the prevailing humor of the times ; which 
 has occasioned a great variety of resolutions in the court of 
 law concerning it ; and attempts have been frequently made for 
 its repeal, though hitherto without success." At common law 
 every man might use what trade he pleased ; but this statute 
 restrains that liberty to such as have served as apprentices : the 
 adversaries to which provision say, that all restrictions, which 
 tend to introduce monopolies, are pernicious to trade.- the advo- 
 cates for it allege, that unskilfulness in trade is equally detri- 
 mental to the public as monopolies. This reason indeed only 
 •428] extends to such trades, * in the exercise whereof skill is 
 required. But another of their arguments goes much farther ; 
 viz. that apprenticeships are useful to the commonwealth, by 
 employing of youth, and learning them to be early industrious ; 
 but that no one would be induced to undergo a seven years' 
 servitude, if others, though equally skilful, were allowed the 
 same advantages without having undergone the same disciphne: 
 and in this there seems to be much reason. However, the reso- 
 
 6 Special statutes of this kind in regard to laborers, are seldom if evet 
 met with in the United States 
 
 6 The restrictions thus imposed on trade were repealed by statutes 54 
 Geo. III., ch. 96, s & 6 V« 11. IV.. ch. 76. 
 
OF MASTER AND SERVANT. 133 
 
 lutions of the courts have in general rather confined than ex- 
 tended the restriction. No trades are held to be within the 
 statute but such as were in being at the making of it : for trad- 
 ing in a country village, apprenticeships are not requisite : and 
 following the trade seven years without any effectual prosecu- 
 tion, either as a master or a servant, is sufficient without an 
 actual apprenticeship. 
 
 A master may by law correct his apprentice for negligence 
 or other misbehavior, so it be done with moderation : though, :f 
 the master or master's wife beats any other servant of full age, 
 it is good cause of departure. But if any servant, workman, or 
 laborer, assaults his master or dame, he shall suffer one year's 
 imprisonment, and other open corporal punishment, not extend- 
 ing to life or limb.' 
 
 By service all servants and laborers, except apprentices, 
 become entitled to wages ; according to their agreement, if 
 menial servants ; or according to the appointment of the sheriff 
 or sessions, if laborers or servants in husbandry : for the stat- 
 utes for regulation of wages extend to such servants only ; it 
 being impossible for any magistrate to be a judge of the 
 employment of menial servants, or of course to assess their 
 wages.' 
 
 ' This statute is now repealed. 
 
 ' Under this second division of the subject, treating of the " manner in 
 which the relation of service affects either the master or servant," there are 
 important rules in regard to the liability of the master to the servant, of 
 which Blackstone does not treat. We shall consider, I. The master's 
 liability for injuries to the servant caused by defective machinery, tools, 
 etc. II. His liability for injuries which the servant receives from the acts 
 of fellow-servants. * 
 
 I. The master is under a legal obligation to use reasonable, ordinary 
 care to furnish to the servant safe and suitable machinery, implements, ap- 
 pliances, materials, etc., for the performance of his work. He is not deemed 
 to be an insurer of the servant's safety and freedom from harm in such 
 cases, but must use such care and precaution as a man of reasonable pru- 
 dence and forethought would exhibit. If he is guilty of negligence in not 
 using this required degree of care, and the servant, not knowing of the de- 
 fect in the materials or appliances furnished, is injured while using them, 
 the master may be sued in a civil action and damages recovered for the in- 
 juries sustained. Tbu;;, a railroad company, which continued to use a de- 
 fective and dangerous locomotive after notice of its dangerous condition, 
 was held liable to the fireman who was employed upon such locomotive, but 
 did not know of its defects, for injuries occasioned by its bursting. [Kee^ati 
 
 * The common-law rules stated in this note have been much changed in Eng- 
 land by a late statute. (43 & +4 Vict. c. 42 ) 
 
134 OF MASTER AND SERVANT. 
 
 III. Let us, lastly, see how strangers may be affected by this 
 *429] relation of master and servant: or how a master may* 
 behave towards others on behalf of his servant ; and what a servant 
 may do on behalf of his master. 
 
 V. Western R. Co., 8 N. Y. 175; see Siringham v. Hilton, in N. Y. 188; 
 Johnson v. Tow Boat Co., 135 Mass. 209.) So, if the master employs the 
 servant to do work involving peculiar danger or extraordinary risks, and the 
 servant cannot be presumed to understand the nature of these risks, the 
 master must inform him upon this point, or will be chargeable with neg- 
 ligence ; as if, e. g., he furnishes the servant with a newly-invented and 
 dangerous blasting-powder, which the servant has never before used. (56 
 Barb. 151; and see 42 N. J. (Law) 467.) But if the piaster use proper 
 care in providing materials, the servant is presumed to take upon himself the 
 ordinary risks incident to the business and the use of such materials ; and 
 if he is injured by reason of any unknown defect, or unforeseen casualty, or 
 because he lacks sufficient skill to use the tools, machinery, etc., furnished, 
 he has no right to recover from the master for his injuries. And if in 
 any case the servant knows of dangerous defects in the articles fur- 
 nished, and continues in the employment without objection, and 
 sustains injury by reason of such defects, he is guilty of contribu- 
 tory negligence, and the master is not liable. This will be true whether 
 the mastei- is aware or ignorant of such defects. [Hayden v. Mfg. Co., 29 
 Conn. 548.) If, however, the servant in such a case, is induced to remain 
 by the master's promise to amend the defect, he can recover for an injury 
 caused thereby within such a time as it would be reasonable and prudent to 
 remain in the employment while waiting for such repairs. (Hough v. Railway 
 Co., 100 U. S. 213.) The servant may also recover for injuries caused by the 
 master's personal neglect in other ways. {Roberts v. Smith, 2 H. & N. 213.) 
 
 II. The master must likewise use reasonable care in procuring compe- 
 tent and skilful fellow-servants. If he does not, and one servant, without 
 negligence on his part, is injured by reason of another's incompetence, the 
 master will be liable. The same is true if an unfit servant is retained after 
 knowledge of his incapacity, unless the servant injured knew of the other's 
 incompetence and remained in the service without objection. [Laning v. N. 
 Y. Cent. R. Co., 49 N. Y. 521). But if the master use proper care in this 
 respect, the servant is deemed to assume the risk of injury from the acts of 
 co-servants in the same common employment, and cannot recover against the 
 master for such injuries. But this doctrine is subject to these qualifications : 
 (a) The servants must be under the same master. If a servant of one railroad 
 company be engaged in laboring upon a line of track together with the ser- 
 vants of another company and is injured by the negligence of one of them, he 
 can recover against the employer of the one doing the injury. {Smith v. 
 A^. Y. &» Harlem R. Co., 19 N. Y. 127 ; see 1 12 N. Y. 643 ; 109 U. S. 478.) 
 (i) The servants must be in the same common employment. The em- 
 ployment is considered " common " when, although the immediate object 
 on which one servant is employed is very dissimilar from that on which 
 the other is employed, yet the risk of injury from the negligence of the qva 
 
OF MASTER AND SERVANT. 135 
 
 And, first, the master may maintain, that is, abet and assist 
 his ser\-ant in any action at law against a stranger : whereas, in 
 general, it is an offence against public justice to encourage suits 
 and animosities by helping to bear the expense of them, and is 
 called in law maintenance. A master also may bring an action 
 against any man for beating or maiming his servant ; but in 
 such case he must assign, as a special reason for so doing, his 
 own damage by the loss of his service, and this loss must be 
 proved upon the trial. A master likewise may justify an assault 
 in defence of his servant, and a servant in defence of his master : 
 the master, because he has an interest in his servant, not to be 
 deprived of his service ; the servant, because it is part of his 
 duty, for which he receives his wages, to stand by and defend 
 his master. Also if any person do hire or retain my servant, 
 being in my service, for which the servant departeth from me 
 and goeth to serve the other, I may have an action for damages 
 against both the new master and the servant, or either of them :' 
 but if the new master did not know that he is my servant, no 
 action lies ; unless he afterwards refuses to restore him upon 
 
 is so much a natural and necessary consequence of the employment which 
 !he other accepts, that it must be included in the risks which are to be in- 
 cluded in his wages. Thus, a carpenter hired by a railroad company to do 
 work near the railway line is a fellow-servant, for the time being, of em- 
 ployees workmg upon the track. (^Morgan v. Vale of Neath R. Co., L. R. 
 1 Q. B. 149; McAndrews v. Burns, 39 N. J. L. 117; see 42 Mich. 34.) 
 
 (c) The servants may be of different grades ; thus a foreman is the fellow- 
 servant of one acting under his directions. (98 N. Y. 211 ; 134 Mass. 351 ; 
 L. R. 2 Q. B. 33.) But a general agent, foreman, or other employee, who is 
 entrusted with the performance of duties obligatory upon the master, as, e. g., 
 to furnish suitable materials, and to secure competent fellow-servants, etc., 
 is not regarded, so far as the performance of these duties is concerned, as 
 the fellow-servant of other employees ; and if they sustain injury by his 
 negligence in performing these duties, the master is liable, for these are 
 duties the master cannot delegate. (8l N. Y. 516; 1 16 U. S. 642; 146 
 Mass. 586.) Some courts go farther and hold that an employee placed in 
 general control over others is for this reason also the master's representative, 
 and is not to be deemed a co-servant with the subordinates. (112 U. S. 377 ; 
 52 Ct. 285.) Therefore the rule first stated herein as to a foreman is not 
 accepted in some States. 
 
 ' See also Lumley v. Gye, 2 E. & B. 216; Caughey v. Smith, 47 N. Y. 
 244; Woodward \. Washburn, 3 Denio, 369. In like manner a master may 
 maintain an action against a third person who seduces his female servant, on 
 the ground of loss of service. {S^^post, pp. 167, 697, 698, and notes.) 
 
136 OF MASTER AND SERVANT. 
 
 information and demand. The reason and foundation upon 
 which all this doctrine is built, seem to be the property that 
 every man has in the service of his domestics ; acquired by the 
 contract of hiring, and purchased by giving them wages. 
 
 As for those things which a servant may do on behalf of his 
 master, they seem all to proceed upon this principle, that the 
 master is answerable for the act of his servant, if done by his 
 command, either expressly given, or implied : nam qui facit per 
 *^ZQi\alium,facit per se. Therefore, if the *servant commit a 
 trespass by the command or encouragement of his master, the 
 master shall be guilty of it : though the servant is not thereby 
 excused, for he is only to obey his master in matters that are 
 honest and lawful. If an inn keeper's servants rob his guests, 
 the master is bound to restitution : for as there is a confidence 
 reposed in him, that he will take care to provide honest 
 servants, his negligence is a kind of implied consent to the rob- 
 bery ; nam, qui non prohibet, cum prohibere possit, jubet. So 
 likewise if the drawer at a tavern sells a man bad wine, whei-eby 
 his health is injured, he may bring an action against the master : 
 for although the master did not expressly order the servant to 
 sell it to that person in particular, yet his permitting him^to draw 
 and sell it at all is impliedly a general command. 
 
 In the same manner, whatever a servant is permitted to do 
 in the usual course of his business, is equivalent to a general 
 command. If I pay money to a banker's servant, the banker is 
 answerable for it; if I pay it to a clergyman's or a physician's 
 servant, whose usual business it is not to receive money for his 
 master, and he embezzles it, I must pay it over again. If a 
 steward lets a lease of a farm, without the owner's knowledge, 
 the owner must stand to the bargain ; for this is the steward's 
 business. A wife, a friend, a relation, that used to transact busi- 
 ness for a man, are quoad hoc his servants ; and the principal must 
 answer for their conduct : for the law implies, that they act 
 under a general command ; and without such a doctrine as this 
 no mutual intercourse between man and m'n could subsist with 
 any tolerable convenience. If I usually deal with a tradesman 
 by myself, or constantly pay him ready money, I am not answer- 
 able for what my servant takes up upon trust ; for here is no 
 implied order to the tradesman to trust my servant ; but if I 
 usually send him upon trust, or sometimes on trust and some 
 
OF MASTER AND SERVANT. 137 
 
 times with ready money, I am answerable for all he takes up; 
 for the tradesman cannot possibly distinguish when he comes by 
 my order, and when upon his own authority." 
 
 * If a servant, lastly, by his negligence does any damage [*43l 
 to a stranger, the master shall answer for his neglect : if J 
 smith's servantf lames a horse while he is shoeing him, an action 
 lies against the master, and not against the servant. But in 
 these cases the damage must be done, while he is actually 
 employed in the master's service ; otherwise the servant shall 
 answer for his own misbehavior." Upon this principle, by the 
 
 >" It is a general rule of law that a principal is bound by all the contracts 
 ol his agent, within the scope of the authority which he gives the agent, or 
 appears to the world to give him. Such authority, therefore, is either express 
 or implied. It is express when actually and intentionally conferred upon 
 the agent by some positive act ; implied, when the authority is presumed 
 from the acts or conduct of the principal, or from the nature of the position 
 which the agent fills, or the acts which he is permitted to do without objec- 
 tion from the principal. Instances of implied authority are such as these : 
 the power of a partner to bind the firm in ordinary business transactions ; 
 of auctioneers, brokers, etc., to do what the customs of the business author- 
 ize, in acting for their principals ; so wives, servants, friends, etc., who have 
 been commonly employed, or permitted to do a certain class of acts as agents, 
 have an implied power to continue doing them. There is a distinction between 
 a general and a special agent. A general agent is one who is employed to 
 transact all business of a particular kind, or to perform all things incident to 
 a particular line of employment. A special agent is one who is employed to 
 render a particular, special service, to act in a single instance. The author- 
 ity of a general agent to perform all things usual in the line of business in 
 which he is employed, cannot be limited by any private instructions, not 
 known to the party dealing with him ; and the principal, in such a case, will 
 be bound by the agent's acts. But in the case of a special agent, the per- 
 son dealing with him must ascertain the extent of the authority given, and 
 cannot hold the principal responsible if the agent transcends his authority. 
 The principal, however, may ratify an unauthorized act of his agent, and 
 thus make himself responsible. 
 
 '1 It is a general principle that a master is responsible for the wrongful 
 acts or torts which his servant commits within the scope of his authority, 
 whereby injury is caused to third persons. By the word " tort " is 
 meant any wrong, irrespective of contract, in violation of personal private 
 rights, for whir;li the law gives a right to bring a civil action for damages ; 
 as, e. g., assault and battery, libel, slander, nuisance, trespass, fraud, negli- 
 gence, etc. The extent of the servant's authority with reference to tlie 
 master's liability, is not to be determined precisely by the instructions which 
 he receives ; for the master may be responsible, although the servant ex- 
 ceeds or disregards his instructions. {Ochsenbein v. Shapley, 85 N. Y. 214.) 
 
 t A servant is responsible to third persons for his own positive wrongs or 
 trespasses. (^Harrintan v. Slozve, 57 Mo. 93; Drake v. Kiely, 93 Pa. St. 492.) 
 
138 OF MASTER AND SERVANT. 
 
 common law, if a servant kept his master's fire negligent y, so 
 that his neighbor's house was burned down thereby, an action 
 lay against the master; because this negligence happened in his 
 
 Whatever acts may be reasonably considered as incident to, or sanctioned 
 by, the occupation in which the servant is employed, and are done by him 
 with a view to the performance of his master's business, are to be deemed 
 as within " the scope of his employment." To this extent, therefore, the 
 servant will usually have a discretionary power ; and although he exercises 
 this discretion erroneously and injuriously, still if his purpose was the prose- 
 cution of his master's business, the master will be responsible. It was at 
 one time maintained that a master was never liable for the wilful acts of 
 his servants ; but it is now held that wilful acts may be within the scope of 
 the servant's authority, according to the principles just adverted to, so that 
 the master may be held accountable. Thus, where an omnibus-driver had 
 received orders from his employer not to race with, or obstruct the omni- 
 buses of another line, but he did so with a view to injure the other line, it 
 was held that although he acted wantonly and maliciously, yet as he had his 
 employer's interest in view, and was engaged in the performance of his 
 master's work, the employer was liable. {Lhnpus v. London Omnibus Co., 
 I H. & C. 526; Howe V. Newmarch, 12 Allen, 49.) But if the servant quits 
 sight of the object for which he is employed, and without having in view 
 the performance of his master's work or his master's benefit, does an act 
 which his own malice or wilfulness suggests, he acts without the scope of 
 his authority, and, though himself liable, does not bind the master. {Mott 
 v. Consumers'' Co., T^ N. Y. 543.) So, if he is entrusted with means or facil- 
 ities to perform his duty or service, but uses them for purposes of his own 
 without regard to his master's work, the master is not liable ; as if a servant 
 is directed to use a horse and carriage in the delivery of certain articles, but 
 drives in a wrong direction for his own pleasure. (L. R. 4 Q. B. 476; 12 
 Hun, 465; cf. 87 N. Y. 535.) The important test, therefore, in determining 
 whether the master is liable, is not whether the act of the servant Is wilful or 
 not wilful, but whether the act is within the scope of the servant's employ- 
 ment, according to the sense of the phrase just indicated. But there are 
 certain classes of cases, in which the application of this test is not of essen- 
 tial importance, but in which the master is nevertheless held responsible for 
 injuries occasioned by the wrongful acts of his servants, though they acted 
 entirely without regard to their duty. Such cases are the following : — 
 
 (a) Where the master has made a contract to do a certain thing, and his 
 servants by their wrongful acts have prevented its fulfilment, though such acts 
 be wilful and malicious. {Weed v. Pana^na R. Co., 17 N. Y. 362; Black- 
 stock V. N. Y. ^ Erie R. Co., 20 N. Y. 48.) But the master is not liable if 
 the servants have left his employ and are acting as " strikers." {Geismer v. 
 Lake Shore Ss^c. R. Co., 102 N. Y. 563; see 89 Ind. 457.) 
 
 {b) Where the master is a common carrier of passengers, and therefore 
 
OF MASTER AND SERVANT. 139 
 
 service : otherwise, if the servant, going along the street with a 
 torch, by negligence sets fire to a house ; for there he is not in 
 his master's immediate service; and must himself answer the 
 
 under the usual obligation of such carriers to use all such reasonable precau- 
 tions as liuman judgment and foresight are capable of, to make his passen- 
 gers' journey safe and comfortable. It is the carrier's duty to treat his pas- 
 senger respectfully, and to protect him against the violence and insults, not 
 only of strangers and co-passengers, but particularly of his own servants. If, 
 therefore, the passenger is assaulted and insulted througli the wilful miscon- 
 duct of an employee, the master is responsible. This duty maybe regarded, 
 in one aspect, as ilowing from an implied contract ; so that the master would 
 be liable on the same ground as in case {a) above. [Goddard v. Grand 
 Trunk R. Co., 57 Me. 2D2 ; 106 Mass. 180; 90 N. Y. 588; I2I U. S. 637.) 
 
 (f) Where the servant, by his wrongful act, creates a nuisance upon the 
 master's premises, or does an act in the use or improvement of such prem- 
 ises, which causes a trespass to adjacent property ; as, where servants are 
 engaged in blasting upon their master's land, and stones and earth are 
 thrown upon the adjacent premises. {Hay v. Cohoes Co., 2 N. Y. 1 59.) 
 
 (rf.) Where the master is a common carrier of goods or an innkeeper, 
 and therefore absolutely responsible at common law for the safety of the 
 goods entrusted to him, except from injuries occasioned by the act of God 
 or the public enemy, and his servants occasion the loss or destruction of the 
 goods, or injury to them. He may then be sued for the loss sustained, al- 
 though the servants did the wrongful act wilfully. 
 
 It is important to distinguish between a servant and a contractor. The 
 term " contractor " is used to designate a person who is not, like a servant, 
 under the constant and immediate direction and control of his employer in 
 the prosecution of the work which he is engaged to do, but who undertakes 
 to accomplish a particular end or result, but himself controls the work during 
 its progress ; as, where one contracts to build a house, to dig a canal, etc. A 
 contractor is usually a person engaged in an independent employment. It is 
 a general rule that an employer is not responsible for the negligence or 
 wrongful act of a contractor whom he employs, or of the contractor's ser- 
 vants or agents, but that the contractor is himself the party liable in such 
 cases. (Hexamer v. Webb, loi N. Y. 377 ; Chicago v. Robbins, 2 Black, 418.) 
 So a contractor is not responsible for the acts of a sub-contractor whom he 
 employs. But these rules are subject to the following qualifications : — 
 
 (a) The employer is liable when he personally interferes with the con- 
 tractor's workmen, who obey his directions (i C. B. 578 ; i Rob. 432) ; and 
 also where he retains such control over the contractor as virtually makes the 
 latter a servant for the time being. (137 Mass. 123 ; 15 Wall. 649.) 
 
 (J}) The employer is liable where the act which the contractor is employed 
 to do is itself unlawfial ; as where a contractor was employed to make an 
 excavation in a public street, which the employer had no lawfvil authority to 
 make, and a public nuisance was thus created. {Ellis v. Sheffield Gas Co., 2 
 E. & B. 767; Water Co. v. Ware, 16 Wall. 566; see 61 N. Y. 178.) 
 
 (c) The employer is liable where he is under an absolute legal duty to do 
 
140 OF MASTER AND SERVANT. 
 
 damage personally. But now the common law is, in the formei 
 case, altered by statute 6 Ann. c. 3, which ordains that no action 
 shall be maintained against any, in whose house or chamber an) 
 fire shall accidentally begin : for their own loss is sufScient pun- 
 ishment for their own or their servant's carelessness. But if 
 such fire happens through negligence of any servant, whose loss 
 is commonly very little, such servant shall forfeit 100/. to be 
 distributed among the sufferers : and, in default of payment, 
 shall be committed to some workhouse, and there kept to hard 
 labor for eighteen months." A master is, lastly, chargeable if 
 any of his family layeth or casteth any thing out of his house 
 into the street or common highway, to the damage of any individ- 
 ual, or the common nuisance of his majesty's liege people : for 
 the master hath the superintendence and charge of all his house- 
 hold. And this also agrees with the civil law ; which holds that 
 the paterfamilias, in this and similar cases, " ob alterius culpant 
 tenetur, sive servi, sive liberi. 
 
 *432] *We may observe, that in all the cases here put, the master 
 may be frequently a loser by the trust reposed in his servant, but 
 never can be a gainer ; he may frequently be answerable for his 
 servant's misbehavior, but never can shelter himself from punish- 
 ment by laying the blame on his agent. The reason of this is 
 still uniform and the same ; that the wrong done by the servant 
 is looked upon in law as the wrong of the master himself ; and it 
 is a standing maxim, that no man shall be allowed to make any 
 advantage of his own wrong. 
 
 a certain act, and intrusts its performance to a contractor who neglects or 
 fails to accomplish it as directed ; as, where a city is bound to keep the streets 
 in a safe condition and commits to a contractor the work of filling an exca- 
 vation in the highway, and he fails to do so, so that a person suffers injury. 
 {Brusso V. Buffalo, 90 N. Y. 679; Htighes v. Percival, 8 App. Cas. 443.) 
 
 {d) The employer is liable if his premises are wrongfully left by the con- 
 tractor, after the completion of the work, with a nuisance thereon, and he 
 allows it to remain. (92 N. Y. 10; 144 Mass. 516.) 
 
 12 It has been decided that the word "accidentally," in the statute of 
 Anne, does not apply to fires caused by negligence, but only to cases where 
 the fire originated without assignable or discoverable cause, or is attributable 
 to the act of "God: a master, therefore, would still be liable for a fire caused 
 by his servant's negligence, and the common-law rule is not, as Blackstone 
 states, altered in this respect by the statute. {Filliter v. Phippard, 11 Q, B. 
 347.) In some of the United States, this statute has been reenacted. In 
 New York it is held to be a part of the common law. {Lansing v. Stone^ 37 
 Barb, ij ; see 49 N. Y. 420 ; 94 U. S. 469.) 
 
OF HUSBAND AND WIFE. 141 
 
 CHAPTER V. 
 
 [bL. CO mm. — BOOK I. CH. XV.] 
 
 Of Husband and Wife. 
 
 The second private relation of persons is that of marriage; 
 which includes the reciprocal rights and duties of husband and 
 wife ; or, as most of our elder law books call them, of baron and 
 feme. In the consideration of which I shall in the first place 
 inquire, how marriages may be contracted or made ; shall next 
 point out the manner in which they may be dissolved ; and shall, 
 lastly, take a view of the legal effects and consecmences of 
 marriage. 
 
 I. Our law considers marriage in no other light than as a civil 
 contract.' The holiness of the matrimonial state is left entirely 
 to the ecclesiastical law: the temporal courts not having jurisdic- 
 tion to consider unlawful marriage as a sin, but merely as a civil 
 
 ' " Marriage is a contract sui generis, and differing in some respects from 
 all other contracts ; so that the rules of law which are applicable in expound- 
 ing and enforcing other contracts, may not apply to this. The contract o£ 
 marriage is the most important of all human transactions. It is the very 
 basis of the whole fabric of civilized society. The foundation of marriage, 
 like that of all other contracts, rests on the consent of parties ; but it differs 
 from other contracts in this, that the rights, obligations, or duties arising 
 from it are not left entirely to be regulated by the agreements of parties, but 
 are, to a certain extent, matters of municipal regulation, over which the par- 
 ties have no control by any declaration of their will : it confers the status of 
 legitimacy on children born in wedlock, with all the consequential rights, 
 duties, and privileges thence arising ; it gives rise to the relations of con- 
 sanguinity and affinity ; in short, it pervades the whole system of civil soci- 
 ety. Unlike other contracts, it cannot, in general, amongst civilized nations, 
 be dissolved by mutual consent ; and it subsists in full force, even though 
 one of the parties should be forever rendered incapable, as in the case of 
 incurable insanity, or the like, from performing his part of the mutual con- 
 tract. No wonder that the rights, duties, and obligations arising from so 
 important a contract should not be left to the discretion or caprice of the con 
 tracting parties, but should be regulated, in many important particulars, b) 
 the laws of e-\ jry civilized country." (Per Lord Robertson, in Duntze v 
 Uvett, 3 Eng. Ec. 360. 495, 502 ; see Maynard v. Hill, 125 U. S. 190.) 
 
142 OF HUSBAND AND WIFE. 
 
 inconvenience. The punishment, therefore, or annulling, of 
 incestuous or other unscriptural marriages, is the province of the 
 spiritual courts ; which act pro salute animre? And, taking it in 
 this civil light, the law treats it as it does all other contracts : 
 allowing it to' be good and valid in all cases, where the parties at 
 the time of making it were, in the first place willing to contract ; 
 secondly, able to contract ; and, lastly, actually did contract, in 
 the proper forms and solemnities required by law.' 
 434*] *First, they must be willing to contract. " Consensus, 
 non concubitus,facit nuptias" is the maxim of the civil law in this 
 case ; and it is adopted by the common lawyers, who indeed have 
 borrowed, especially in ancient times, almost all their notions of 
 the legitimacy of marriage from the canon and civil laws.* 
 
 2 Jurisdiction in matrimonial causes was taken from the ecclesiastical 
 courts by the statute 20 & 21 Vict., ch. 85 (1857), and vested in a special 
 court, established by this act, known as the " Court for Divorce and Matri- 
 monial Causes." By the act 36 & 37 Vict., ch. 66 [1873], it was provided 
 that this court, together with the Court of Probate and the Court of Admir- 
 alty, should form the Probate, Divorce, and Admiralty division of the High 
 Court of Justice, which this act established. In the United States, where 
 there have never been any ecclesiastical courts, jurisdiction to annul mar- 
 riages or grant divorces, etc., is usually vested in courts of equity, or courts 
 having equitable powers. 
 
 2 Mutual promises to marry also constitute a contract, for a breach of 
 which either of the parties thereto may sue the other and recover damages 
 No particular form of words is necessary to constitute such a contract : it is 
 sufficient that the acts and language of the parties were such as clearly to 
 indicate that they intended a mutual engagement, and understood it to exist, 
 though no express request to marry was ever made by one of the other. 
 {Homan v. Earle, 53 N. Y. 267.) It has been held that an action for breach 
 of promise of marriage will lie at once, upon a positive refusal to perform 
 the contract at any time, though the time specified for the performance has 
 not arrived. {Burtis v. Thompson, 42 N. Y. 246.) In such actions evidence 
 may be given in defence that the promise was procured by fraud, or that the 
 plaintiff is of immoral or unchaste character, and that this was not known to 
 the defendant at the time of the engagement. {Palmer v. Andrews, 7 Wend. 
 144; Berry v. Bakeinan, 44 Me. 164; see 33 Minn. 231.) 
 
 * A marriage ceremony, though actually and legally performed, when it was 
 in jest and not intended to be a contract of marriage, and it was so under- 
 stood at the time by both parties, and is so considered and treated by them, 
 is not a contract of marriage. Intention is necessary, as in every other con- 
 tract. {McClurg-v. Terry, 21 N. J. Equity, 225.) So marriages procured by 
 force, duress, or fraud, are invalid. {Smith v. Sinith, 51 Mich. 607.) But 
 the fraud must be such as goes to the essence of the contract. {Moot v. 
 
OF HUSBAND AND WIFE. 143 
 
 Secondly, they must be able to contract. In general, all 
 persons are able to contract themselves in marriage, unless they 
 labor under some particular disabilities and incapacities. What 
 those are, it will be here our business to inquire. 
 
 Now these disabilities are of two sorts ; first, such as art 
 canonical, and therefore sufficient by the ecclesiastical laws to 
 void the marriage in the spiritual court; but these in our 
 law only make the marriage voidable, and not ipso facto void, 
 until sentence of nullity be obtained. Of this nature are pre- 
 contract ; consanguinity, or relation by blood ; and affinity, or 
 relation by marriage ; and some particular corporeal infirmities. 
 And these canonical disabilities are either grounded upon the 
 express words of the divine law, or are consequences plainly 
 deducible from thence : it therefore being sinful in the persons 
 who labor under them, to attempt to contract matrimony together, 
 they are properly the object of the ecclesiastical magistrate's 
 coercion ; in order to separate the offe iders, and inflict penance 
 for the offence, pro salute animarum. But such marriages not 
 being void ab initio, but voidable only by sentence of separation, 
 they are esteemed valid to all civil purposes, unless such separa- 
 tion is actually made during the life of the parties.^ For, after 
 
 Moot, 37 Hun, 288.) If the deception be merely in regard to the social 
 station, wealth, good health or disposition of one of the parties, it will not 
 usually be sufficient to annul the contract. But if a woman be with child by 
 another man at the time of her marriage, and deceives her betrothed husband 
 in this regard, the marriage may be declared a nullity, unless he has himself 
 had illicit relations with her. (13 Cal. 87; 3 Allen, 605; 40 N. J. Eq. 412; 
 97 Mass. 330.) 
 
 ° By statute 5 & 6 William IV., ch. 54 [1835-36], marriages between per- 
 sons within the prohibited degrees are declared absolutely null and void. 
 What these degrees are, is not stated by the statute ; that must be deter- 
 mined by the rules of the canon law and early statutes. Relationship both 
 by cjnsanguinity and by affinity, is still comprehended within the prohibition ; 
 and marriage cannot, therefore, be contracted with a deceased wife's sister. 
 (Brook V. Brook, 9 H. L. C. 193 ; Queen v. Chad-wick, 11 Q. B. 173, 205.) 
 
 In the United States, marriages between persons related by consanguinity 
 are prohibited, but not usually between persons related by affinity. This 
 matter is regulated by the statutes of the several States upon the subject. 
 Thus, in New York marriages between persons lineally related to each other 
 in a direct line of ascent and descent, and between brothers and sisters, are 
 declared incestuous and void. (2 R. S. 139.) In a number of the States, the 
 prohibition is more wide-reaching in its scope, and forbids marriages with 
 uncles, aunts, nephews, nieces, step-children, etc. Incest is also, as a general 
 rule, declared to be a crime. (See People v. Lake, no N. Y. 61.) 
 
144 OF HUSBAND AND WIFE. 
 
 the death of either of them, the courts of common law will not 
 suffer the spiritual courts to declare such marriages to have been 
 void ; because such declaration cannot now tend to the reformti- 
 ^ion of the parties. And therefore when a man had married his 
 first wife's sister, and after her death the bishop's court was 
 •435] *proceeding to annul the marriage and bastardize the issue, 
 the court of king's bench granted a prohibition quoad hoc ; but 
 permitted them to proceed to punish the husband for incest. 
 These canonical disabilities being entirely the province of the 
 ecclesiastical courts, our books are perfectly silent concerning 
 them. But there are a few statutes, which serve as directories 
 to those courts, of which it will be proper to take notice. By 
 statute 32 Hen. VIII. c. 38, it is declared, that all persons may 
 lawfully marry, but such as are prohibited by God's law ; and 
 that all marriages contracted by lawful persons in the face of the 
 church, and consummated with bodily knowledge, and fruit 
 of children, shall be indissoluble. And, because in the times of 
 popery, a great variety of degrees of kindred were made impedi- 
 ments to marriage, which impediments might however be bought 
 off for money, it is declared, by the same statute, that nothing, 
 God's law except, shall impeach any marriage, but within the 
 Levitical degrees ; the farthest of which is that between uncle 
 and niece. By the same statute all impediments arising from 
 precontracts to other persons, were abolished and declared of 
 none effect, unless they had been consummated with bodily 
 knowledge : in which case the canon law holds such contract to 
 be a marriage de facto. But this branch of the statute was 
 repealed by statute 2 and 3 Edw. VI. c. 23. How far the act of 
 26 Geo. II. c. 33, which prohibits all suits in ecclesiastical courts 
 to compel a marriage, in consequence of any contract, may 
 collaterally extend to revive this clause of Henry VIII. 's statute, 
 and abolish the impediment of precontract, I leave to be con- 
 sidered by the canonists." 
 
 « Disability by pre-contract is now declared to be abolished. 
 
 In regard to the " corporeal infirmities " or disabilities for which a marriage 
 may be annulled, the following cases may be consulted : (G. v. G., L. R. 2 P. & 
 D. 287 ; A. V. B., L. R. i P. & D. 559 ; J. G. v. H. G., 33 Md. 401 ; Deven- 
 bagh V. Devenbagh, 5 Pai. 558.) In New York it is provided by statute that 
 when either of the parties to a marriage shall be incapable, from physical causes, 
 fiom entering into the marriage state, the marriage may be annulled by the 
 
OF HUSBAND AND WIFE. 145 
 
 The other sort of disabilities are those which are created, or 
 at least enforced, by the municipal laws. And, though some of 
 them may be grounded on natural law. yet they are regarded by 
 the laws of the land, not so much in the light of any moral 
 offence, as on account of the civil inconveniences they drew after 
 them. These civil disabilities make the contract void ab initio., 
 and not merely voidable ; not that they *dissolve a con- [*436 
 tract already formed, but they render the parties incapable of 
 forming any contract at all : they do not put asunder those who 
 are joined together, but they previously hinder the junction. 
 And, if any persons under these legal incapacities come together, 
 it is a meretricious,'and not a matrimonial union.' 
 
 I. The first of these legal disabilities is a prior marriage, or 
 having another husband or wife living ; in which case, besides 
 the penalties consequent upon it as a felony, the second marriage 
 is to all intents and purposes void : polygamy being condemned 
 both by the law of the New Testament, and the policy of all 
 prudent states, especially in these northern climates. And 
 Justinian, even in the climate of modern Turkey, is express, that 
 " duas uxores eodem tempore habere non licet y * 
 
 proper court. (2 R. S. 139.) Similar provisions exist in other States. The 
 marriage is, therefore, not void but voidable. 
 
 ' The foriner distinctions between void and voidable marriages are now so 
 far changed in England that of these various disabilities enumerated by 
 Blackstone, both canonical and civil, all but two (viz., want of age and cor- 
 poreal disability) render the marriage void ab initio, while these two render 
 it voidable. But it has long been customary, in cases of insanity, and of force 
 or fraud, to institute a judicial investigation to have the marriage declared 
 null and void. (See also Andrews v. Ross, 14 P. D. 15.) If a marriage is void- 
 able, it will remain valid until annulled by a competent court ; but not, if void. 
 
 In the United States, these distinctions are still further changed and modified 
 by the various statutes upon the subject. Thus, in New York, these causes 
 render a marriage void, relationship within the prohibited degrees, and (with 
 certain exceptions) polygamy ; while these render it voidable only : want of 
 age, insanity or idiocy, physical disability, the use of force or fraud in obtain- 
 ing consent, and certain excepted cases of polygamy. (See 2 R. S. 139.) 
 (See next note ; also Unity v. Belgrade, 76 Me. 419.) 
 
 ' This subject is generally governed by statute in the United States. In 
 New York polygamous marriages are declared void, unless one of the parties 
 to a marriage has been absent for five successive years without being known 
 to the other to be living, and such other party has married again in igno- 
 rance of this fact. (2 R. S. 139.) Then this second marriage is voidable. In 
 other States there are statutes of a similar character, though in some, as: 
 10 
 
146 OF HUSBAND AND WIFE. 
 
 2. The next legal disability is want of age. -This is sufficient 
 to avoid all other contracts, on account of the imbecility ol 
 judgment in the parties contracting ; a fortiori therefore it ought 
 to avoid this, the most important contract of any. Therefore if 
 a boy under fourteen, or a girl under twelve years of age, marries, 
 this marriage is only inchoate and imperfect ; and, when either 
 ' of them comes to the age of consent aforesaid, they may dis- 
 agree and declare the marriage void, without any divorce or 
 sentence in the spiritual court.° This is founded on the civil 
 law. But the canon law pays a greater regard to the constitu- 
 tion, than the age, of the parties ; for if they are habiles ad matri- 
 monium, it is a good marriage, whatever their age may be. And 
 in our law it is so far a marriage, that, if at the age of consent 
 they agree to continue together, they need not be married again. 
 If the husband be of years of discretion and the wife under twelve, 
 when she comes to years of discretion, he may disagree as well 
 as she may : for in contracts the obligation must be mutual ; 
 both must be bound, or neither : and so it is vice versa, when the 
 wife is of years of discretion, and the husband under. '" 
 *437] *3. Another incapacity arises from want of consent ot 
 parents or guardians. By the common law, if the parties them- 
 selves were of the age of consent, there wanted no other concur- 
 rence to make the marriage valid : and this was agreeable to the 
 canon law. But, by several statutes, penalties of lOo/. are laid 
 on every clergyman who marries a couple either without publica- 
 tion of banns, which may give notice to parents or guardians, or 
 without a license, to obtain which the consent of parents or 
 guardians must be sworn to. And by the statute 4 and 5 Ph. 
 and M. c. 8, whosoever marries any woman child under the age 
 of sixteen years, without consent of parents or guardians, shall 
 
 in England, all bigamous marriages are made void. (See 45 N. J. Eq. 485 ; 
 121 III. 388.) Bigamy is also usually a crime punishable by indictment, 
 except in such cases of absence of one of the parties. 
 
 ' In some States, the age of consent has been changed by statute, and the 
 parties required to be older than at common-law. Thus in New York, the 
 age is eighteen for males, sixteen for females. 
 
 " But these rules only apply in case of an actual marriage contract, and not 
 in reference to a contract to marry in future. The parties must be 21 years 
 of age to render such a contract valid ; and if one of the parties be over, and 
 the other under this age, the adult will be bound, but the minor may avoid the 
 agreement. (^Hunt v. Peake, 5 Cow. 475 ; see 31 O. St. 521 ; 42 O. St. 23.) 
 
OF HUSBAND AND WIFE. 147 
 
 be subject to fine, or five years' imprisonment : and her estate 
 during the husband's life shall go to and be enjoyed by the next 
 heir. The civil law indeed required the consent of the parent or 
 tutor at all ages, unless the children were emancipated, or out 
 of the parent's power : and if such consent from the father was 
 wanting, the marriage was null, and the children illegitimate; 
 Dut the consent of the mother or guardians, if unreasonably 
 withheld, might be redressed and supplied by the judge, or the 
 president of the province : and if the father was non compos, a 
 similar remedy was given. These provisions are adopted and 
 imitated by the French and Hollanders, with this difference: that 
 in France the sons cannot marry without consent of parents till 
 thirty years of age, nor the daughters till twenty-five ; and in 
 Holland, the sons are at their own disposal at twenty-five, and 
 the daughters at twenty. Thus hath stood, and thus at present 
 stands, the law in other neighboring countries. And it has 
 lately been thought proper to introduce somewhat of the same 
 policy into our laws, by statute 26 Geo. H., c. 33, whereby it is 
 enacted, that all marriages celebrated by license (for banns sup- 
 pose notice) where either of the parties is under twenty-one, 
 (not being *a widow or widower, who are supposed eman- [*438 
 cipated,) without the consent of the father, or, if he be not Irv- 
 ing, of the mother or guardians, shall be absolutely void." A 
 like provision is made as in the civil law, where the mother or 
 guardian is non compos, beyond sea, or unreasonably froward, to 
 dispense with such consent at the discretion of the lord chancel- 
 lor : but no provision is made, in case the father should labor 
 under any mental or other incapacity. Much maybe, and much 
 has been, said both for and against this innovation upon our 
 ancient laws and constitution. On the one band, it prevents 
 the clandestine marriages of minors, which are often a terrible 
 inconvenience to those private families wherein they happen. 
 On the other hand, restraints upon marriages, especially among 
 
 " These rules have been somewhat changed by recent statutes. It is 
 r.ow the rule that the parent or guardian, by publicly forbidding the banns or 
 the solemnization, may prevent the banns from proceeding, or the marriage 
 from taking place. But if the marriage of the minor be actually solemnized 
 without such consent, it will nevertheless be valid. (Statutes 4 Geo. IV., 
 ch. 76; 6 & 7 Will. IV., ch. 85.) In some States of this country, statutes 
 have been passed requiring the consent of parents or guardians, but this is 
 not generally the case. 
 
148 OF HUSBAND AND WIFE. 
 
 the lower class, are evidently detrimental to the public, by 
 hindering the increase of the people ; and to religion and moral- 
 ity, by encouraging licentiousness and debauchery among the 
 single of both sexes ; and thereby destroying one end of society 
 and government, which is concubitu prohibere vago. And of 
 this last inconvenience the Roman laws were so sensible, that at 
 the same time that they forbade marriage without the consent of 
 parents or guardians, they were less rigorous upon that very 
 account with regard to other restraints : for, if a parent did not 
 provide a husband for his daughter, by the time she arrived at 
 the age of twenty-five, and she afterwards made a slip in hei 
 conduct, he was not allowed to disinherit her upon that account, 
 " quia non sua culpa, sed parentum, id commisisse cognoscittir." 
 
 4. A fourth incapacity is want of reason ; without a compe- 
 tent share of which, as no other, so neither can the matrimonial 
 contract, be valid.*^ It was formerly adjudged, that the issue oi 
 an idiot was legitimate, and consequently that his marriage was 
 valid. A strange determination ! since consent is absolutely 
 requisite to matrimony, and neither idiots nor lunatics are capa- 
 ble of consenting to any thing. And therefore the civil law 
 judged much more sensibly when it made such deprivations of 
 *439] reason a previous impediment ; *though not a cause of 
 divorce, if they happened after marriage. And modern resolutions 
 have adhered to the reason of the civil law, by determining that 
 the marriage of a lunatic, not being in a lucid interval, was abso- 
 lutely void. But as it might be difficult to prove the exact state 
 of the party's mind at the actual celebration of the nuptials, 
 upon this account, concurring with some private family reasons, 
 the statute 15 Geo. II., c. 30, has provided that the marriage of 
 lunatics and persons under phrenzies, if found lunatics under a 
 commission, or committed to the care of trustees by any act of 
 parliament, before they are declared of sound mind by the lord 
 chancellor or the majority of such trustees, shall be totally void. 
 
 Lastly, the parties must not only be willing and able to con 
 tract, but actually must contract themselves in due form of law, 
 to make it a good civil marriage. Any contract made, per verba 
 de presenti, or in words of the present tense, and in case of co- 
 habitation per verba de futuro also, between persons able to con- 
 
 '2 See Unity v. Belgrade, 76 Me. 419; Stuckey v. Mathes, 24 Hun, 461; 
 Cummington v. Belcheriown, 149 Mass. 223 ; 2 Kent's Comm. 76. 
 
Ot HUSBAND AND WIFE. 149 
 
 tract, was before the late act deemed a valid marriage to many 
 purposes ; and the parties might be compelled in the spiritual 
 courts to celebrate it in facie ecclesia}' But these verbal con- 
 
 ' But it has been decided, by recent cases in the House of Lords, that a 
 contract of marriage made per verba de present! was not sufficient to consti- 
 tute a valid marriage by the common-law, but it must have been celebrated 
 in the presence of a clergyman in holy orders. And it is not enough 
 that the bridegroom is h.'mself a clergyman, and performs the ceremony. 
 {Beamish v. Beamish, 9 H. L. C. 274 [1861] ; Queen v. Millis, to CI. & F. 534.) 
 But in the United States, where there is no established church, it has been 
 generally held that a marriage made by mere words of agreement in the 
 present tense would be valid, without the intervention of a clergyman, and 
 also that if particular forms and ceremonies are prescribed by statute for the 
 solemnization of marriage, these are directory merely and not compulsory, 
 (See Meister v. Moore, 96 U. S. 76; Gall v. Gall, 114 N. Y. 109; Coinm. v. 
 Stump, 53 Penn. St. 132.) Of course, however, a formal celebration by a 
 minister or a magistrate is the usual mode adopted. But in some States, a 
 marriage is not valid unless the statutory forms are observed. {Beverlin v. 
 Beverlin, 29 W. Va. 732 ; Comm. v. Munson, 127 Mass. 459.) 
 
 The proposition in the text, that a contract per verba defuturo, if followed 
 by cohabitation, would constitute a valid marriage, has been denied in several 
 States in this country, where the question has arisen for decision. (See Cheney 
 v. Arnold, 15 N. Y. 345 ; Duncan v. Duncan, 10 Ohio, N. S. 181.) It is said 
 that the ecclesiastical courts had jurisdiction to compel the due celebration of 
 such marriages, but that, before such celebration, they were not valid at com- 
 mon-law. (See Peck v. Peck, 12 R. I. 485; Cartwright v. McGown, 121 111. 
 388.) 
 
 The English statutes referred to in the succeeding portion of the paragraph, 
 regulated the forms of marriage until 1822. But they have been superseded 
 by other acts similar in character, but less stringent in their requirements as 
 to the necessary formalities. If the marriage be celebrated by the Estab- 
 lished Church, it must be upon publication of banns, and the procurement 
 of a license, the ceremony must be performed by a duly ordained clergyman, 
 and the marriage must be attested by two witnesses. But persons who do 
 not desire to conform to these rites, may be married according to their own 
 religious usages, or by a civil ceremony. But certain preliminary proceed- 
 ings are required to be taken before an officer known as the superintendent 
 registrar, which stand in place of the banns and licenses of the Established 
 Church ; and the presence of a civil registrar is required at the solemnization 
 of the marriage, except in the cases of Quakers or Jews, and there must be 
 two attesting witnesses. (Broom & Hadley's Comm. i. p. 533.) 
 
 It is a general rule that the validity of a marriage, unless it is contrary to the 
 law of nature or public policy, is to be determined by the law of the place 
 where the marriage is contracted. (90 N. Y. 602 ; 149 Mass. 226.) Formerly, 
 persons in England, who desired to avoid an observance of the English mar- 
 riage regulations, were wont to pass over the border into Scotland, and marry 
 
ISO OF HUSBAND AND WIFE 
 
 tiacts are now of no force, to compel a future marri<i{;c. Neither 
 is any marriage at present valid, that is not celebrated in some 
 parish church, or public chapel, unless by dispensation from the 
 Archbishop of Canterbury. It must also be preceded by publica- 
 tion of banns, or by license from the spiritual judge. Many other 
 formalities are likewise prescribed by the act ; the neglect of 
 which, though penal, does not invalidate the marriage. It is 
 held to be also essential to a marriage, that it be performed by 
 a person in ciders ; though the intervention of a priest to 
 solemnize this contract is merely juris positivi and not juris 
 naturalis aut divini: it being said that Pope Innocent the Third 
 was the first who ordained the celebration of marriage in the 
 *440] church ; before *which it was totally a civil contract. And, 
 in the times of the grand rebellion, all marriages were performed 
 by the justices of the peace ; and these marriages were declared 
 valid, without any fresh solemnization, by stat. I2 Car. II. c. 33. 
 But, as the law now stands, we may upon the whole collect, that 
 no marriage by the temporal law is ipso facto void, that is cel- 
 ebrated by a person in orde^rs, — in a parish church or public 
 chapel, or elsewhere, by special dispensation, — in pursuance of 
 banns or a license, — between single persons, — consenting, — of 
 sound mind, — and of the age of twenty-one years ; — or of the 
 age of fourteen in males and twelve in females, with consent of 
 parents or guardians, or without it, in case of widowhood. And 
 no marriage is voidable by the ecclesiastical law, after the death 
 of either of the parties ; nor during their lives, unless for the 
 canonical impediments of precontract, if that indeed still exists ; 
 of consanguinity ; and of affinity, or corporeal imbecility, sub- 
 sisting previous to their marriage. 1* 
 
 in an informal way at a place called Gretna Green. Hence such marriages 
 were called "Gretna Green marriages;" but notwithstanding the intent of 
 the parties, they were held valid, (s. p. L. R. 5 P. D. 94; 86 N. Y. 18.) 
 
 "Where no prescribed ceremonial of marriage is absolutely necessary, 
 marriage may often be proved by cohabitation, acknowledgment of the mar- 
 riage by the parties themselves, reception of them as man and wife by their 
 friends, common reputation, etc. (Ga// v. Gall, 114 N. Y. 109.) But such 
 evidence merely raises a presumption of marriage, and may be rebutted by 
 other evidence. {Clayton v. Wardell, 4 N. Y. 230; Appeal of Reading Co., 
 113 Pa. St. 204.) But on trials for bigamy and civil actions for criminal con- 
 versation, the marriage must be proved by direct evidence, and not by this 
 indirect method. {Hayes v. People, 25 N. Y. 390; see 75 Me. 126: 4; N. T. 
 Eq. 116; 88N. Y. 546.) . 'ts J 
 
OF HUSBAND AND WIFE. 151 
 
 II. I am next to consider the manner in which marriages 
 may be dissolved ; and this is either by death, or divorce. There 
 are two kinds of divorce, the one total, the other partial ; the 
 one a vinculo maUimonii, the other mev^iy amensa et thoro. The 
 total divorce, a vinculo matrimonii, must be for some of the can- 
 onical causes of impediment before mentioned, and those, ex- 
 isting before the marriage, as is always the case in consanguinity ; 
 not supervenient, or arising afterwards, as may be the case 
 in affinity or corporeal imbecility. For in cases of total di- 
 vorce, the marriage is declared null, as having been absolutely 
 unlawful ab initio .- and the parties are therefore separated pro 
 salute animarum: for which reason, as was before observed, 
 no divorce can be obtained, but during the life of the parties. 
 The issue of such marriage as is thus entirely dissolved, are 
 bastards." 
 
 " The English law upon the subject of divorce, is now so altered that a 
 divorce a vinculo, may be obtained for causes arising after the marriage. 
 It may be obtained by the husband on the ground of his wife's adultery ; by 
 the wife, on the grounds that since the marriage, her husband has com- 
 mitted incestuous adultery, rape, or an unnatural crime, or has been guilty 
 of bigamy with adultery, or of adultery coupled with cruelty, or with deser- 
 tion for two years or more, without reasonable cause. And a judicial separa- 
 tion or divorce a mensa et thoro may be obtained by either party for adul- 
 tery, or cruelty, or desertion without cause, for two years or upwards. (20 
 & 21 Vict., ch. 85 ; and see 41 Vict. c. ig.) 
 
 In the United States, the causes for total and partial divorce are par- 
 ticularly prescribed by the statutes of the several States, and there is no 
 little diversity in their provisions upon this subject. In some States, as in 
 New York, total divorce is permitted only for a single cause, viz., adultery; 
 while in others, it is obtainable for a variety of causes, as adultery, cruelty, 
 desertion, failure to support, habitual drunkenness, conviction for crime, etc. 
 In a number of the States, such causes (or some of them), other than adul- 
 tery, are only grounds for partial divorce. In a suit for total divorce on the 
 ground of adultery (or in some States for other causes), it will be generally 
 a sufficient defense to prove (i) that the plaintiff has been guilty of the same 
 offense; this is called "recrimination;" (2) that the offense has \i^e.n con- 
 doned or forgiven, either expressly, or by voluntary cohabitation after knowl- 
 edge of the fact ; (3) that the offense was committed through the procurement, 
 connivance, or collusion of the plaintiff. A general denial of the commission of 
 the offense is, of course, if established, a sufficient defense ; and, in some States, 
 it is provided that the suit must be brought within a certain number of years (in 
 New York, five years), in order that it may be maintainable. In States where 
 there is no such positive rule established, unreasonable delay to bring suit will 
 usually in the same way, be deemed a sufficient bar to the plaintiff's cause of 
 
r52 OF HUSBAND AND WIFE. 
 
 Divorce a mensa et thoro is when the marriage is just and 
 lawful ab inuio, and therefore the law is tender of dissolv- 
 *441] ing * it ; but, for some supervenient cause, it becomes 
 improper or impossible for the parties to live together: as 
 in the case of intolerable ill temper, or adultery, in either of 
 the parties. For the canon law, which the common law follows 
 in this case, deems so highly and with such mysterious reverence 
 of the nuptial tie, that it will not allow it to be unloosed for any 
 cause whatsoever, that arises after the union is made. And this 
 is said to be built on the divine revealed law ; though that ex- 
 pressly assigns incontinence as a cause, and indeed the only 
 cause, why a man may put away his wife and marry another. 
 The civil law, which is partly of pagan original, allows many 
 causes of absolute divorce ; and some of them pretty severe 
 ones : as, if a wife goes to the theatre or the public games, with- 
 out the knowledge and consent of the husband ; but among them 
 adultery is the principal, and with reason named the first. But 
 with us in England adultery is only a cause of separation from 
 bed and board : for which the best reason that can be given, is, 
 that if divorces were allowed to depend upon a matter within the 
 power of either of the parties, they would probably be extremely 
 frequent ; as was the case when divorces were allowed for canon- 
 ical disabilities, on the mere confession of the parties, which is 
 now prohibited by the canons. However, divorces a vinculo mat- 
 
 action. If these defenses are sustained by proof, a divorce will not be 
 granted in favor of the complainant. So in suits for partial divorce, similar 
 defenses are commonly permissible; viz., denial, recrimination, condonation, 
 adultery of the plaintiff, and delay to prosecute within the proper time. In 
 some States, there are statutory provisions in regard to these defenses. 
 
 Foreign divorces, i.e. those granted in other States or countries, are gener- 
 ally deemed valid, if granted by courts having jurisdiction of the parties and sub- 
 ject-matter, (lis Mass.438; 108N. Y. 415; 42N. J. Eq. 152; 8 App. Cas. 43.) 
 
 It is important to notice the distinction between annulling a marriage for 
 causes existing previous to its celebration, and dissolving it for causes arising 
 afterwards. The former is a case of nullity of the marriage, the latter a case 
 of dissolution. The effect of the former is that the marriage contract is deemed 
 to have been void from the beginning, so that (unless some statute provides 
 to the contrary) any children born are illegitimate : but, in the latter case, the 
 marriage is perfectly valid until the divorce is obtained ; and all children born 
 before the divorce, or within a reasonable time afterwards, are legitimate. 
 These rules apply under the English, as well as the American law. But par- 
 tial divorce is not a case of dissolution of the marriage ; and the parties are 
 deemed to be still husband and wife, though living apart by judicial decree. 
 
OF HUSBAND AND WIFE. 153 
 
 rimonii, for adultery, have of late years been frequently granted 
 by act of parliament." 
 
 In case of divorce a tnensa et thoro, the law allows alimony 
 to the wife, which is that allowance which is made to a woman 
 for her support out of the husband's estate : being settled at the 
 discretion of the ecclesiastical judge, on consideration of all the 
 circumstances of the case." This is sometimes called her esto- 
 vers, for which, if he refuses payment, there is, besides the ordin- 
 ary process of excommunication, a writ at common law de esto- 
 veriis habendis, in order to recover it. It is generally propor- 
 tioned to the rank and quality of *the parties. But in [*442 
 case of elopement, and living with an adulterer, the law allows 
 her no alimony. 
 
 III. Having thus shown how marriages may be made, or dis- 
 
 " In New York and many other States, the legislatures are prohibited by 
 the State constitutions from granting divorces, and such power is vested only 
 in the courts. But the legislative power still exists where it is not so pro- 
 hibited. (125 U. S. 190.) 
 
 " Alimony is now granted in cases both of total and partial divorce for 
 causes arising after the marriage. It is of two kinds, alimony pendente lite, 
 and permanent alimony : the former being given to the wife to provide for her 
 support during the pendency of the suit, and usually with a further allowance 
 for counsel fees and expenses (80 N. Y. i ; 120 Pa. St. 320) ; while the latter 
 is given upon the termination of the suit, when a decree is rendered in her 
 favor as against her husband, and is intended as a provision for her permanent 
 support. There is no fixed rule in regard to the amount of alimony to be 
 awarded. This rests in the discretion of the court. The amount will vary 
 with the special circumstances of each case ; as, the rank and condition of the 
 parties, the fortune of the husband, the necessities of the wife, etc. As a gen- 
 eral rule, temporary alimony will be limited to the wife's reasonable wants 
 to afford her a suitable and comfortable subsistence. {Burgess v. Burgess, 
 25 111. App. 525.) But it has been held that it might, if necessary, include a 
 sufficient sum to enable the wife to pass the winter in a tropical climate, if 
 her health required it. {Lynde v. Lynde, 4 Sandf. Ch. 373.) As permanent 
 alimony, it is usual to allow one-third or one-fourth of the husband's annual 
 income. But in special cases, this sum may be increased or diminished, as 
 circumstances may seem to require. An investigation is held to determine 
 the amount and value of his property, his yearly income, etc. ; and it is usual 
 to require him to give reasonable security, if considered necessary, for the 
 payment of the allowance awarded to his wife. But if divorce be granted in 
 the husband's favor as against the wife, permanent alimony will not be awarded 
 her. (See Burr v. Burr, 7 Hill, 207 ; Waring v. Waritig, 100 N. Y. 570 ; 
 Barrett v. Barrett, 41 N. J. Eq., 139; Robinson v. Robinson, 79 Cal. 511.) 
 Usually, by statute, the court may also determine as to custody of children 
 and, in proper cases, require the husband to provide for their support. (96 
 N. Y. 456; 90 Ind. 107.) 
 
t54 OF HUSBAND AND WIFE. 
 
 solved, I come now, lastly, to speak of the legal consequences of 
 such making, or dissolution. 
 
 By marriage, the husband and wife are one person in law ; 
 that is, the very being or legal existence of the woman is sus- 
 pended during the marriage, or at least is incorporated and con- 
 solidated into that of the husband ; under whose wing, protec- 
 tion, and cover, she performs everything ; and is therefore called 
 in our law-french z. fetne-covett, fcemina viro co-operta; is said to 
 be covett-baron, or under the protection and influence of her hus- 
 band, her baron, or lord ; and her condition during her marriage 
 is called her covetture. Upon this principle, of an union of per- 
 son in husband and wife, depend almost all the legal rights, du- 
 ties, and disabilities, that either of them acquire by the marriage. 
 I speak not at present of the rights of property, but of such as 
 are rnQr^Xy personal. For this reason, a man cannot grant any 
 thing to his wife, or enter into covenant with her ; for the grant 
 would be to suppose her separate existence ; and to covenant 
 with her, would be only to covenant with himself ; and there- 
 fore it is also generally true, that all compacts made between 
 husband and wife, when single, are voided by the intermarriage." 
 
 '8 By the common-law also the husband became entitled, by marriage, to all 
 the personal property of his wife ; to the rents and profits of her lands ; and 
 if she owned any rights of action against others (termed " choses in action "), 
 he might reduce them to possession by collecting the amount due, selling the 
 claim, etc., and was entitled to the proceeds. But these rules in regard to 
 the right of husband and wife to make conveyances and agreements between 
 themselves, and in reference to the wife's property, must be strictly under- 
 stood as principles of the common-law, since in courts of equity the same 
 disabilities do not exist. In equity the wife may hold property, vested in 
 trustees, to her sole and separate use, and thus have the entire beneficial 
 ownership of it, free from the control and management of her husband, and 
 the right to transfer such beneficial ownership to others. She may also bind 
 her separate estate for the payment of debts which she incurs. Moreover, 
 the husband may covenant with others as trustees for the benefit of his wife, 
 or convey property to them to be held for her use. A conveyance may even 
 be made in equity directly between husband and wife, if for valuable con" 
 sideration, and not prejudicial to the interests of creditors. 
 
 Within recent years the rules of the common-law, in regard to husband 
 and wife, have been to a large extent changed by statute. Both in England 
 and in many of the American States, married women have been thus empow- 
 ered to hold real and personal property, with the same right of management, 
 control, and disposition as single women would have ; to carry on business on 
 theii own account, and for their own exclusive benefit ; to perform Jabor and 
 
OF HUSBAND AND WIFE. 155 
 
 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 any thing to his wife 
 by will ; for that cannot take effect till the coverture is deter- 
 mined by his death. The husband is bound to provide his wife 
 with necessaries by law, as much as himself ; and, if she con- 
 tracts debts for them, he is obliged to pay them ; but for any 
 thing besides necessaries he is not chargeable.'" Also if a wife 
 
 services in their own behalf, and be entitled to the earnings thus gained as 
 their separate property ; to make contracts in relation to their separate prop- 
 erty and the conduct of their business, which will be enforceable at law, etc. 
 The tendency of modernlegislation is to remove many of the disabilities under 
 which married women rested at common-law. But this legislation exhibits 
 so many diverse features that a passing reference to it is all that is here prac- 
 ticable. The statutes of the several States must be specially consulted. The 
 recent English statute on the subject is 45 & 46 Vict. c. 75 [1882]. 
 
 w The wife may not only act as the agent of her husband, but any subse- 
 quent acknowledgment or ratification of her acts by him is evidence of, and 
 equivalent to, an original authority. {Edgerton v. Thomas, 9 N. Y. 40; 
 Gates V. Brower, 9 N. Y. 205.) So the husband may act as agent of the 
 wife. (^Noel\. Kinney, 106N. Y. 74; Wheatonv. Trimble, 145 Mass. 345.) 
 
 ^ If husband and wife live together and he neglects or refuses to supply 
 her with necessaries suitable to their condition and station in life, she may 
 purchase them upon his credit and he will be liable therefor to tradesmen ; 
 and if she is manager of his household, as is usual, this creates a presumption 
 of her right to procure upon his credit necessary household supplies. {Alley 
 V. Winn, 134 IMass. 77; Debenham v. Mellon, 6 App. Cas. 24; Kegney v. 
 Ovens, 18 N. Y. St. Rep. 482 ; Wagner v. Nagel, 33 Minn. 348.) So if a 
 husband ratify a purchase already made by his wife, this will render him liable. 
 {Conrad v. Abbott, 132 Mass. 330.) A husband is, moreover, entitled to 
 the benefit of his wife's earnings and services, unless this rule is changed 
 by modern statutes. {Coleman v. Burr, 93 N. Y. 17.) The husband may, 
 however, if he chooses, expressly prohibit any one from selling necessaries to 
 his wife ; and if he do so, no one, having notice of such prohibition, may 
 trust the wife in reliance upon his credit, unless the husband so neglects his 
 own duty that supplies become absolutely necessary according to their condi- 
 tion. It is indispensable, where the vendor has been forbidden to sell upon 
 the wife's ' request on the husband's credit, that the vendor show, not only that 
 the goods were in their nature suitable and necessary, but that the husband 
 neglected his duty to provide supplies, and that, for that reason, they were nec- 
 essary. {Keller v. Phillips, 39 N. Y. 351 ; Woodward v. Barnes, 43 Vt. 330 ; 
 Cromwell v. Benjamin, 41 Barb. 558.) Where a party contracts solely with, 
 and gives credit to, the wife, he cannot sue the husband, though for necessaries, 
 unless the husband shows by some act that he considers himself the debtor. 
 {Tiemeyer v. Turnquist, 85 N. Y. 516; Bu^ee v. Blood, 48 Vt. 497.) 
 
 Where the husband and wife are separated and live apart firom each 
 
iS6 OF HUSBAND AND WIFE. 
 
 *443] 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 
 afterwards to pay the debt ; for he has adopted her and her cir- 
 cumstances together. If the wife be injured in her person or 
 her property, 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 defend- 
 ant. There is indeed 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 hus- 
 band being thus disabled to sue for or defend the wife, it would 
 
 other, still the husband will be liable upon a contract for necessaries made 
 with her where his assent can be presumed. Thus, where the husband deserts 
 his wife or turns her away without any reasonable ground, or refuses to admit 
 her into his house, or compels her, by ill-usage, adultery, or severity, to leave 
 him, he gives his wife a general credit, and is liable to be sued for necessaries 
 furnished her. (134 Mass. 418; 49 Ct. 450;, i Sandf. 483.) And this, 
 although he has given a general notice to all persons, or even a particular one to 
 the individual supplying her with necessaries, not to give credit to her. But 
 where a husband professes to provide for his wife, who lives apart from him, it 
 is incumbent on one who has been expressly forbidden to give her credit, in 
 order to render the husband liable, to show affirmatively that the husband did 
 not supply her with necessaries suitable to her condition. (8 Wend. 544.) 
 
 If the wife leave her husband, without just cause, he is not liable for her 
 maintenance : in an action against him for necessaries, the plaintiff must prove 
 that the separation took place by reason of his misconduct. (132 Mass. 181 ; 
 4 Denio, 46.) But even in such a case, if the wife, having been guilty of no 
 misconduct, offers to return and he refuses to receive her, his liability will 
 revive. (12 Johns. 293.) If, however, the wife leaves the husband without 
 cause and commits adultery, or elopes, though not with an adulterer, the 
 husband's responsibility will cease. ( 1 1 Johns. 281.) But if, after knowledge of 
 her criminality, he again receives her into his house, his liability ^r necessa- 
 ries again revives. And if he turned her away for adultery, at which he him- 
 self connived, he is liable for her support. (20 Q. B. D. 354; 59 N. H. 106.) 
 
 Sometimes, husband and wife live apart by mutual consent and agreement, 
 and it is the usual practice in such cases for him to make some particular pro- 
 vision for her support. If this is done, and the allowance is duly paid, he will 
 not be Uable for necessaries furnished to her. (8 Johns. 72.) But if no pro- 
 vision is made for her maintenance, or, if agreed upon, is not properly paid, he 
 will be liable for necessaries. (See 12 Johns. 248 ; 1 18 N. Y. 7 ; 134 Mass. 77.) 
 A husband's duty to support his wife is often enforceable under modern statutes 
 by other means than tradesmen's suits. (66 la. 378 ; 140 Mass. 560 ; 88 N. Y. 
 5 '30 
 
OF HUSBAND AND WIFE. 157 
 
 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 evi- 
 dence for, or against, each other : partly because it is impossi- 
 ble their testimony should be indifferent, but principally because 
 of the union of person ; and therefore, if they were admitted to 
 be witnesses /or 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 tenctur 
 seipsum accusarel"^ 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. c. 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 
 
 " The " Married Women's Property Act" in England {45 & 46 Vict. c. 75) 
 provides that a married woman shall be liable to the extent of her separate 
 property for her ante-nuptial debts, contracts, and wrongs, and she may be sued 
 therefor and the judgment satisfied out of such property. But the husband is 
 liable for such debts, etc., to the extent of the property which he acquires from 
 her or becomes entitled to ; and both may be sued upon claims existing wholly 
 or partly against both. A married woman may now, as a general rule, sue and 
 be sued like a. feme sole and her husband need not be joined. 
 
 In the United States, the rules of the common-law in regard to actions, 
 both upon contract and upon tort, still prevail, so far as unchanged by stat- 
 ute. But in many States, it has been provided that married women may sue 
 and be sued, in a variety of cases, in their own names ; and that judgments 
 recovered by them may be enforced for their own personal benefit, and that 
 judgments against them may be enforced against their separate property. Espe- 
 cially is this true with respect to actions concerning their separate property, 
 separate business, and personal earnings. But for the wife's personal torts it 
 is still necessary in a number of the States to sue husband and wife together. 
 
 '^'^ Even by the common-law, the evidence of the wife is admissible against 
 the husband in some cases ; as, when he is on trial for a personal injury, as 
 an assault and battery, committed upon her. Thus, when the husband was 
 prosecuted for giving poison to his wife with intent to kill, she was held to 
 be a competent witness against him. {People v. Northrup, 50 Barb. 147.) 
 This is from the necessity of the case, since it might often happen that no 
 other testimony would be procurable. (See 58 Wis. 674.) 
 
 This rule, prohibiting husband and wife from being witnesses for or against 
 each other, has been, to a considerable extent, changed in modern times by 
 -i.atute. Thus in many States they may so testify in civil actions, except that 
 they cannot disclose confidential communications or give evidence of each 
 other's adultery. In some States husband or wife of a defendant in a criminal 
 case may testify. {Stickney v. Stickney, 131 U. S. 227; Raynesv. Bennett, 
 114 Mass. 424; N. Y. Code Civ. Pro. § 83J ; N. Y. Penal Code, § 715.) 
 
158 OF HUSBAND AND WIFE. 
 
 a main ingredient, her consent, was wanting to the contract ; and 
 also there is another maxim of law, that no man shall take ad- 
 *444] vantage 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 fact. 
 
 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 
 considered ; as inferior to him, and acting by his compulsion. 
 And therefore all deeds executed, and acts done, by her, during 
 her coverture, 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 husband, unless under special circumstances ; for 
 at the time of making it she is supposed to be under his coer- 
 cion.^* And in some felonies, and other inferior crimes, com- 
 mitted by her, through constraint of her husband, the law ex- 
 cuses her, but this extends not to treason or murder. 
 
 The husband also, by the old law, might give his wife moder- 
 ate correction.^ For, as he is to answer for her misbehavior, 
 
 °' It is now a general rule, that married women may convey their real estate 
 by an ordinary deed, instead of by a fine as formerly ; but they are usually 
 required upon a private examination, separate and apart from their husbands, 
 to acknowledge that they execute the deed freely, without any fear or com- 
 pulsion of their husbands, and the notary makes a certificate to that effect 
 upon the deed. The husband should join in the deed with the wife. {Hitz 
 V. Jenks, 123 U. S. 297 ; Delafieldv. Brody, 108 N. Y. 524.) 
 
 ^ A married woman could not at common-law make a will of lands, but could 
 of personal property with the husband's consent. The power to devise lands 
 was given by statute in the reign of Henry VIII., out of which married women 
 were expressly excepted. But the same purpose might be accomplished through 
 the medium of a "power," so called, which was an authority contained in an 
 instrument settling property to her separate use, empowering her to make an 
 appointment of the property by will, to take effect at her death. But in recent 
 times married women have, in a number of States, been vested by statute with 
 power to make wills of their separate property, both real and personal. 
 
 ^ The right of the husband to inflict corporal chastisement upon the 
 wife has been, in modern times, denied. (People v. Winters, 2 Parker Cr. Rep. 
 
OF FfV SB AND AND WIFE. 159 
 
 the law thought it reasonable to entrust him with this power of 
 restraining her, by domestic chastisement, in the same modera- 
 tion that a man is allowed to correct his apprentices or children ; 
 for whom the master or parent is also liable in some cases to 
 ,«nswer. But this power of correction was confined within reas- 
 onable bounds, and the husband was prohibited from using any 
 violence to his wife, aliler quant ad virum, ex causa regiminis et 
 .astigationis uxoris suce, licite et rationabiliter pertinet. The civil 
 law gave the husband the *same, or a larger, authority over [*445 
 his wife ; allowing him, for some misdemeanors, flagellis etfusti- 
 tus acriter verberare uxorem ; for others, only modicam castigatio- 
 ■nem adkibere. But' with us, in the politer reign of Charles the 
 Second, this power of correction began to be doubted, and a 
 wife may now have security of the peace against her husband, 
 or, in return, a husband against his wife. Yet the lower rank of 
 people, who were always fond of the old common law, still claim 
 and exert their ancient privilege ; and the courts of law will still 
 permit a husband to restrain a wife of her liberty, in case of any 
 gross misbehavior. 
 
 These are the chief legal effects of marriage during the 
 coverture ; upon which we may observe, that even the disabili- 
 ties which the wife lies under are for the most part intended for 
 her protection and benefit : so great a favorite is the female sex 
 of the laws of England. 
 
 10.) It is not allowable though the wife be drunk or insolent. {Commonwealth 
 V. McAffee, 108 Mass. 458.) Both husband and w ife are liable to prosecution 
 for assault and batter)' upon each other ; and now in England they may sue 
 each other or institute criminal proceedings against each other for injuries done 
 by the one 10 the other's property. (45 & 46 Vict. c. 75, s. 12.) 
 
i6c QF PARENT AND CHILD. 
 
 CHAPTER VI. 
 
 [BL. COMM. — BOOK I. CH. XVI.] 
 Of Parent and Child. 
 
 The next, and the most universal relation in nature, is iinme 
 diately derived from the preceding, being that between parent 
 anl child. 
 
 Children are of two sorts ; legitimate, and spurious or bas- 
 tards, each of which we shall consider in their order ; and, first, 
 of legitimate children. 
 
 I. A legitimate child is he that is born in lawful wedlock, or 
 within a competent time afterwards. " Pater est quern nuptia 
 demonstrant" is the rule of the civil law, and this holds with the 
 civilians, whether the nuptials happen before or after the birth 
 of the child. With us in England the rule is narrowed, for thf 
 nuptials must be precedent to the birth ; of which more will b" 
 said when we come to consider the case of bastardy. At prer- 
 ent let us inquire into, i. The legal duties of parents to thef ■ 
 legitimate children. 2. Their power over them. 3. The dutie- 
 of such children to their parents. 
 
 I. And, first, the duties of parents to legitimate children, 
 which principally consist in three particulars ; their maintenance, 
 their protection, and their education. 
 
 *447] *The duty of parents to provide for the maintenance of 
 their children, is a principle of natural law ; an obligation, says 
 Puffendorf, laid on them not only by nature herself, but by their 
 own proper act, in bringing them into the world : for they would 
 be in the highest manner injurious to their issue, if they only 
 gave their children life that they might afterwards see them 
 perish. By begetting them, therefore, they have entered into a 
 voluntary obligation to endeavor, as far as in them lies, that the 
 life which they have bestowed shall be supported and preserved. 
 And thus the children will have the perfect right of receiving 
 mamtenance from their parents. And the president Montesquieu 
 has a very just observation upon this head: that the establish- 
 
OF PARENT AND CHILD. i6i 
 
 ment of marriage in all civilized states is built on this natural 
 obligation of the father to provide for his children ; for that 
 ascertains and makes known the person who is bound to fulfij 
 this obligation : whereas, in promiscuous and illicit conj unctions, 
 the father is unknown ; and the mother finds a thousand obsta- 
 cles in her way, shame, remorse, the constraint of her sex, and 
 the rigor of laws, that stifle her inclinations to perform this 
 duty ; and, besides, she generally wants ability. 
 
 The municipal laws of all well-regulated states have taken 
 care to enforce this duty : though Providence has done it more 
 effectually than an)j laws, by implanting in the breast of ever}- 
 parent that natural aripyn, or insuperable degree of affection, 
 which not even the deformity of person or mind, not even the 
 wickedness, ingratitude, and rebellion of children, can totally 
 suppress or extinguish. 
 
 The civil law obliges the parent to provide maintenance for 
 his child ; and, if he refuses, "-judex de ea re cognoscetT Nay, 
 it carries this matter so far, that it will not suffer a parent at his 
 death totally to disinherit his child, without expressly giving 
 *his reason for so doing; and there are fourteen such rea- [*448 
 sons reckoned up, which may justify such disinherison. If the 
 parent alleged no reason, or a bad, or a false one, the child might 
 set the will aside, tanquam testamentum inofficiosum, a testament 
 contrary to the natural duty of the parent. And it is remark- 
 able under what color the children were to move for relief in 
 such a case : by suggesting that the parent had lost the use of 
 his reason when he made the inofficious testament. And this, 
 as Puffendorf observes, wa!s not to bring into dispute the testa- 
 tor's power of disinheriting his own offspring, but to examine 
 the motives upon which he did it ; and, if they were found de- 
 fective in reason, then to set them aside. But perhaps this- is 
 going rather too far ; every man has, or ought to have, by the 
 laws of society, a power over his own property; and, as Grotios 
 ver)- well distinguishes, natural right obliges to give a necessary 
 maintenance to children ; but what is mi'"'^ than that they have 
 no other right to, than as it is given them by tiie %vor of their 
 parents, or the positive constitutions of the municipal law. 
 
 Let us next see what provision our own laws have made for 
 this natural duty. It is a principle of law, that there is an ©■bli- 
 gation on every man to provide for those descended from bis 
 
1 62 OF PARENT AND CHILD. 
 
 loins ; and the manner in which this obligation shall be per- 
 formed is thus pointed out.^ The father and mother, grand- 
 
 1 The question whether --^ father is under a legal obligation, irrespective of the 
 duty imposed by statute, to provide for the necessary maintenance of his minor 
 children, has led to a noteworthy conflict of opinion and adjudication in the courts 
 of different States. In England, and in a number of the States of this country, it is 
 maintained that the moral duty in such cases to provide proper support does not con- 
 stitute a legal duty, enforceable by action; and the only ground, therefore, on which 
 a father who has neglected or refused to furnish maintenance can be made respon- 
 sible for necessaries furnished to the child by others, is that the child has an express 
 or implied agency from the father to malce such contracts. " If a father," it is said, 
 " does any specific act from which it may reasonably be inferred that he has author- 
 ized his son to contract a debt, he may be liable in respect of the debt so contracted; 
 but the mere moral obligation on the father to maintain his child, affords no infer- 
 ence of a legal promise to pay his debts." {^Mortimore v. Wright, 6 M. & W. 482.) 
 " If a father turns his son upon the world, the son's only resource, in the absence of 
 anything to show a contract on the father's part, is to apply to the parish, and then 
 the proper steps will be taken to enforce the performance of the parent's legal duty." 
 {^Shelton v. Springett, II C. B. 452.) There is, therefore, under this doctrine, an im- 
 portant difference between a husband's obligation to support his wife, and that of a 
 father to support his child, since, as has been seen, if a husband " turns his wife upon 
 the world," she has a right to incur bills with tradesmen upon his credit for all neces- 
 saries, and he will be held responsible. But under this English rule, slight circum- 
 stances are fastened upon as indicating an implied agency vested in the child, so as 
 to render the father liable ; as if, for example, a boy should buy a new suit of clothes, 
 and the father should afterwards see him wear them, and make no objection nor 
 offer to return them to the tradesman. (See Fluck v. Tollemache, I C. & P. 5; Gor- 
 don v. Potter, 17 Vt. 350; Raymond v. Loyl, 10 Barb. 483; Kelley v. Davis, 49 
 N. H. 187; Freeman v. Robinson, 38 N. J. L. 383; Ramsey v. Ramsey, 23 N. E. Rep. 
 (Ind.) 69; also 19 Abb. N. C. 190; 44 N. W. Rep. (Mich.) 338.) 
 
 But in other States of this country, the view is taken that the father is under a 
 legal obligation, irrespective of such relation of agency; and if, therefore, he does 
 not provide necessaries for the child's support, according to his means, the child may 
 procure them from tradesmen or others upon the father's credit; as if, for instance, 
 the father should drive his son from home without cause by cruel treatment. This 
 rule, however, is subject to similar qualifications as in the law of husband and wife; 
 and if the father himself duly supplies necessaries, a tradesman who, in ignorance 
 thereof, supplies like articles, cannot recover. {Brow v. Brightman, 136 Mass. 187; 
 Gilley V. Gilley, 79 Me. 292; Pretzingcr v. Pretzinger, 45 O. St. 452; Porter y. Powell, 
 44 N. W. Rep. (Iowa) 295; see 13 Johns. 280; 2 Cush. 347, 353; 33 Penn. St. 50.) 
 So if a minor voluntarily leaves his father's house without cause, he cannot pledge 
 his father's credit for necessaries. {Weeks v. Merrow, 40 Me. 151 ; see Tyler v. 
 Arnold, 47 Mich. 564.) A mother is not bound to support her minor children while 
 the father is living. {Gleason v. Boston, 144 Mass. 25.) 
 
 Courts of equity have long exercised a salutary jurisdiction over cases of 
 this kind; and if the child is entitled to property of its own, and the father is 
 either wholly impoverished, or is in comparatively reduced circumstances, so that 
 providing support would embarrass him, these courts will generally make an allow- 
 
OF PARENT AND CHILD. 163 
 
 faiher and grandmother, of poor impotent persons, shall main- 
 tain them at their own charges, if of sufficient ability, according 
 as the quarter session shall direct : and if a parent runs away, 
 and leaves his children, the churchwardens and overseers of the 
 parish shall seize his rents, goods, and chattels, and dispose of 
 them toward their relief . (a) By the interpretations which the 
 courts of law have made upon these statutes, if a mother or 
 grandmother marries again, and was before such second mar- 
 riage of sufficient ability to keep the child, the husband shall be 
 charged to *maintain it : for, this being a debt of hers when [*449 
 single, shall like others extend to charge the husband.'' But at 
 her death, the relation being dissolved, the husband is under no 
 farther obligation. 
 
 No person is bound to provide a maintenance for his issue, 
 unless where the children are impotent and unable to work, 
 either through infancy, disease, or accident, and then is only 
 obliged to find them with necessaries, the penalty on refusal 
 
 (fl) Statutes 43 Eliz. ch. 2 ; 5 Geo. I. ch. 8. 
 
 ance for the child's support out of his own property : the income is usually applied 
 to this purpose, so far as may be deemed reasonable and necessary. (^Ex parte 
 Kane, 2 Barb. Ch. 375 ; Kice v. Tonnele, 4 Sandf. Ch. 568.) This may even be 
 done when the father is a man of some means, but the child's property is consider- 
 ably more ample, for the court considers in these cases the permanent interest and 
 welfare of the child, with reference to his station in life and probable career. {^Ex 
 parte Burke, 4 Sandf. Ch. 617; see 96 N. Y. 201, 220; 63 N. H. 14.) 
 
 Similar statutes to that referred to in the text are to be found in most of the 
 United States, whose purpose is to prevent children from becoming a charge upon 
 the town or parish, by requiring their parents to support them. The statute 43d 
 Elizabeth, ch. 2, upon this subject became generally a part of the common-law of 
 this country. In some States it has been re-enacted, in others superseded by subse- 
 quent enactments of similar purport. 
 
 ^ But now by statute 4 & 5 Will. IV. ch. 76, a man marrying a woman who has 
 children at the time of such marriage, is compelled to support them until they 
 become sixteen, or until the death of the mother, whether they are legitimate or 
 illegitimate. 
 
 It is a common-law rule that a step-father is not entitled to the custody or ser- 
 vices of the children of his wife by a former husband, nor is he bound to maintain 
 them. But if he receives them into his family and supports them, they cannot sue 
 him for the value of their services, though this may exceed the cost of their support, 
 nor will they be liable for the necessaries he supplies. ( Williams v. Hutchinson, 
 3 N. Y. 312; Gerdes v. Weiser, 54 la. 591.) This rule also applies to children 
 remaining in their father's family after they become of age, but may be varied by 
 contract. (60 Mich. 635; 99 Pa. St. 552; 57 Wis, 13; see 117 N. Y. 131.) 
 
i64 OF PARENT AND CHILD. 
 
 being no more than 2.0s. a month.' For the policy of our laws, 
 which are ever watchful to promote industry, did not mean ta 
 compel a father to maintain his idle and lazy children in ease 
 and indolence : but thought it unjust to oblige the parent 
 against his will, to provide them with superfluities, and other 
 indulgences of fortune ; imagining they might trust to the im- 
 pulse of nature, if the children were deserving of such favors. 
 Yet, as nothing is so apt to stifle the calls of nature as religious 
 bigotry, it is enacted, that if any popish parent shall refuse to 
 allow his protestant child a fitting maintenance, with a view to 
 compel him to change his religion, the lord chancellor shall by 
 order of court constrain him to do what is just and reasonable. 
 But this did not extend to persons of another religion, of no less 
 bitterness and bigotry than the popish : and therefore in the very 
 next year we find an instance of a Jew of immense riches, whose 
 only daughter, having embraced Christianity, he turned her out 
 of doors ; and, on her application for relief, it was held she was 
 entitled to none. But this gave occasion to another statute, 
 which ordains, that if Jewish parents refuse to allow their protes- 
 tant children a fitting maintenance suitable to the fortune of the 
 parent, the lord chancellor on complaint may make such order 
 therein as he shall see proper.* 
 
 Our law has made no provision to prevent the disinheriting 
 *450] of children by will; leaving every man's property in his *own 
 disposal, upon a principle of liberty in this as well as every other 
 action : though perhaps it had not been amiss if the parent had 
 been bound to leave them at least a necessary subsistence. In- 
 deed, among persons of any rank or fortune, a competence is 
 generally provided for younger children, and the bulk of the 
 estate settled upon the eldest, by the marriage-articles. Heirs 
 also, and children, are favorites of our courts of justice, and 
 cannot be disinherited by any dubious or ambiguous words ; there 
 being required the utmost certainty of the testator's intentions to 
 take away the right of an heir. 
 
 From the duty of maintenance we may easily pass to that of 
 
 8 The amount of the penalty is now fixed by the justices. It is now pro- 
 vided by statute that a parent who wilfully neglects to provide sufficient 
 necessaries for his child, who is in his custody and under 14 years of age, 
 shall be criminally responsible. (31 & 32 Vict. ch. 122; see N. Y. Code 
 Crim. Pro. § 899; N. Y. Penal Code, § 288.) 
 
 * These statutes are no longer in force. 
 
OF PARENT AND CHILD. 165 
 
 protection., which is also a natural duty, but rather permitted 
 than enjoined by any municipal laws : natural in this respect, 
 working so strongly as to need rather a check than a spur. A 
 parent may by our laws maintain-and uphold his children in their 
 lawsuits, without being guilty of the legal crime of maintaining 
 quarrels. A parent may also justify an assault and battery in 
 defence of the persons of his children : nay, where a man's son 
 was beaten by another boy, and the father went near a mile to 
 find him, and there revenged his son's quarrel by beating the 
 other boy, of which beating he afterwards unfortunately died, it 
 was not held to be murder, but manslaughter merely. Such in- 
 dulgence does the law show to the frailty of human nature, and 
 the workings of parental affection. 
 
 The last duty of parents to their children is that of giving 
 them an education suitable to their station in life : a duty pointed 
 out by reason, and of far the greatest importance of any.' For, 
 as Puffendorf very well observes, is it not *easy to imagine [*451 
 or allow, that a parent has conferred any considerable benefit 
 upon his child by bringing him into the world ; if he afterwards 
 entirely neglects his culture and education, and suffers him to 
 grow up like a mere beast, to lead a life useless to others, 
 and shameful to himself. Yet the municipal laws of most coun- 
 tries seem to be defective in this point, by not constraining the 
 parent to bestow a proper education upon his children. Perhaps 
 they thought it punishment enough to leave the parent, who 
 neglects the instruction of his family, to labor under those giiefs 
 and inconveniences which his family, so uninstructed, will be 
 sure to bring upon him. Our laws, though their defects in this 
 particular cannot be denied, have in one instance made a wise 
 provision for breeding up the rising generation : since the poor 
 
 5 This is said to be a duty of imperfect obligation, since it is not legally 
 enforceable, but must be left to the discretion and prudence of parents, and 
 tneir affection for their children. In the United States, very ample facilities 
 are afforded in nearly all the States for the education of children by public 
 schools. In some of the States, education has been made compulsory by 
 statute. Thus, it is provided in New York, by a recent enactment, that chil- 
 dren between 8 and 14 years of age must be sent to some public or private 
 school at least 14 weeks in each year, of which eight shall be consecutive, 
 or be instructed at home for the same period, in spelling, reading, writing, 
 English grammar, geography and arithmetic, if the children's health will 
 permit. (Laws of 1874, ch. 421 ; for the English law, see 39 & 40 Vict. c. 79 ; 
 43 & 44 Vict, c 23.) 
 
i66 OF PARENT AND CHILD. 
 
 and laborious part of the community, when past the age of nur 
 ture. are taken out of the hands of their parents, by the statutes 
 for apprenticing poor children ; and are placed out by the public 
 in such a manner, as may render their abilities, in their several 
 stations, of the greatest advantage to the commonwealth. The 
 rich, indeed, are left at their own option, whether they will breed 
 up their children to be ornaments or disgraces to their family. 
 Yet in one case, that of religion, they are under peculiar restric- 
 tions ; for it is provided, that if any person sends any child under 
 his government beyond the seas, either to prevent its good edu- 
 cation in England, or in order to enter into or reside in any pop- 
 ish college, or to be instructed, persuaded, or strengthened in 
 the popish religion ; in such case, besides the disabilities incurred 
 by the child so sent, the parent or person sending, shall forfeit 
 lOO?., which shall go to the sole use and benefit of him that shall 
 discover the offense. And if any parent, or other, shall send or 
 convey any person beyond the sea, to enter into, or be resident 
 in, or trained up in, any priory, abbey, nunnery, popish univer- 
 sity, college, or school, or house of Jesuits, or priests, or in any 
 private popish family, in order to be instructed, persuaded, or 
 *452] confirmed in the *popish religion, or shall contribute any 
 thing towards their maintenance when abroad by any pretext 
 whatever, the person both sending and sent shall be disabled to 
 sue in law or equity, or to be executor or administrator to any 
 person, or to enjoy any legacy or deed of gift, or to bear any 
 office in the realm, and shall forfeit all his goods and chattels, 
 and likewise all his real estate for life.° 
 
 2. The power of parents over their children is derived from 
 the former consideration, their duty : this authority being given 
 them, partly to enable the parent more effectually to perform his 
 duty, and partly as a recompense for his care and trouble in the 
 faithful discharge of it.-f And upon this score the municipal laws 
 of some nations have given a much larger authority to the parents 
 than others. The ancient Roman laws gave the father a power 
 of life and death over his children ; upon this principle, that he 
 who gave had also the power of taking away. But the rigor 
 of these laws was softened by subsequent constitutions ; so that 
 we find a father banished by the Emperor Hadrian for killing 
 
 ^ These restrictions have since been removed by statute. 
 
 X The right of a father to the custody of his infant children was formerly carried to an extreme b^ 
 the courts, even as against the mother. But under modern statutes and decisions the general rule is 
 to consider the welfare and benefit of the infant in awarding custody. (13 Q. B. D. 614; 74 N, Y. 
 •99; 61 la. 198; 103 Ind. 569: 45 N. J. Eq. 283.) 
 
OF PARENT AND CHILD. i6; 
 
 his son, though he had committed a very heinous crime, upon 
 this maxim, that " f atria potestas in pietate debet, non in atroataU, 
 consistere." But still they maintained to the last a very large and 
 absolute authority : for a son could not acquire any property of his 
 own durmg the life of his father ; but all his acquisitions belonged 
 to the father, or at least the profits of them, for his life. 
 
 The power of a parent by our English laws is much more 
 moderate ; but still sufficient to keep the child in order and obe- 
 dience. He may lawfully correct his child, being under age, in 
 a reasonable manner; for this is for the benefit of his education. 
 The consent or concurrence of the parent to the marriage of his 
 child under age, w'as also directed by our ancient law to be ob- 
 tained : but now it is absolutely necessary, for without it the con- 
 tract is void.' And this also is another means, which the law 
 has put into the parent's hands, in *order the better to [*453 
 discharge his duty; first, of protecting his children from the 
 snares of artful and designing persons ; and, next, of settling them 
 properly in life, by preventing the ill consequences of too early 
 and precipitate marriages. A father has no other power over 
 his son's estate than as his trustee or guardian ; for though he 
 may receive the profits during the child's minority, yet he must 
 account for them when he comes of age. He may indeed have 
 the benefit of his children's labor while they live with him, and 
 are maintained by him ; ' but this is no more than he is entitled 
 
 'See ante, note ii, page 147. 
 
 ' But the father may " emancipate '' his minor child, as it is termed, i. e., 
 resign or renounce his claim to the child's services and earnings, and allow 
 him to labor on his own account. The father will not, in such case, be 
 bound to support >he child, and the child will be entitled to his own earnings. 
 (Stanley v. Nat. Union Bk., 115 N. Y. 122 ; Atwood v. Holcomb, 39 Ct. 270.) 
 
 It is on the ground that a father is entitled to the services of his minor 
 child, that he is permitted to maintain an action against any one who injures 
 the child by any wrongful act, or entices him away, and thus deprives the 
 father of his services and earnings. (Cuming \. Brooklyn R. Co., 109 N. Y. 
 95 ; Sargent v. Mathewson, 38 N. H. 54.) In case of personal injury to the 
 child, the action of the parent for loss of service is additional to one that may 
 be brought on the child's behalf for the direct injury itself. 
 
 It is on the same ground that a father may sue for seduction of his 
 daughter. . The daughter cannot bring action herself on account of her con- 
 sent to the wrongful act, and the father, therefore, sues for the consequen- 
 tial injury which he has sustained by loss of service. If the daughter is a 
 minor, it is held in this country, that the father may recover against her 
 
i68 OF PARENT AND CHILD. 
 
 to from his apprentices or servants. Tlie legal power of a fathei 
 —for a mother, as such, is entitled to no power, but only to rever. 
 ence and respect ; the power of a father, I say, over the persons 
 of his children ceases at the age of twenty-one : for they are then 
 enfranchised by arriving at years of discretion, or that point 
 which the law has estabhshed, as some must necessarily be es- 
 tablished, when the empire of the father, or other guardian, gives 
 place to the empire of reason. Yet, till that age arrives, this 
 empire of the father continues even after his death ; for he may 
 by his will appoint a guardian to his children.f He may also 
 delegate part of his parental authority, during his life, to the tu- 
 tor or schoolmaster of his child ; who is then in loco parentis, 
 and has such a portion of the power of the parent committed to his 
 charge, viz., that of restraint and correction, as may be neces- 
 sary to answer the purposes for which he is employed.^ 
 
 3. The duties of children to their parents arise from a prin- 
 ciple of natural justice and retribution.^" For to those who gave 
 
 t See post, page 178. 
 
 seducer, whether she be hving in his own family or be in the service oi 
 another, since in the latter case he has the right to demand her services at 
 any time. In one case the service is actzial, in the other constructive. 
 {Lavery v. Crooke, 52 Wis. 612; Mulvehall v. Mill-ward, 11 N. Y. 343.) 
 In England, however, if the daughter, though a minor, be in the service of 
 another when seduced, the father has no right of action, since this doctrine of 
 constructive service in such cases is not there maintained. In both coun- 
 tries, however, the rule in regard to adult daughters is that they must be 
 actually in the father's service to enable him to maintain this action: very 
 slight acts of service, however, will be sufficient to establish this relation, 
 as, e.g., living in his household and performing trifling household duties. 
 These actions may be brought, not only by a father, but also by any one 
 standing in loco parentis to the daughter, as, for instance, a guardian, step- 
 father, etc. If the father be deceased, the mother may bring the action. 
 {Gray v. Durland, 51 N. Y. 424; Furman v. Van Sise, 56 N. Y. 435.) The 
 damages recoverable in these cases of seduction are not limited to the value 
 of the services lost, but may be exemplary, on account of the disgrace and 
 dishonor brought on the family and the greatness of the wrong. 
 
 ' But if the punishment administered by father or teacher be cruel, im- 
 moderate and excessive, the act will be wrongful, and punishable both civilly 
 and criminally. {Commonwealth v. Randall, 4 Gray, 38 ; Sheehan v. Sturges, 
 S3 Ct. 481 ; Patterson v. Nutter, 78 Me. 509.) 
 
 ^^ There is no common-law obligation upon a child to support an indigent 
 parent ; it is created solely by statute. In a number of the States of the 
 Union there are statutes, as in England, providing for the maintenance of 
 poor relatives. {Herendeen v. De Witt, 49 Hun, 53; see 70 Ind. 239; 30 
 Q. B. D. 252.) 
 
OF PARENT AND CHILD. 169 
 
 us existence we naturally owe subjection and obedience during 
 minority, and honor and reverence ever after : they who pro- 
 tected the weakness of our infancy are entitled to our protection 
 in the infirmity of their age ; they who by sustenance and edu- 
 cation have enabled their offspring to prosper, ought in return 
 to be supported by that offspring, in case they stand in need of 
 assistance. Upon this principle proceed all the duties of children 
 to their parents which are enjoined by positive laws. And the 
 Athenian laws carried *this principle into practice with a [*454 
 scrupulous kind of nicety : obliging all children to provide for 
 their father when fallen into poverty ; with an exception to spu- 
 rious children, to those whose chastity had been prostituted by 
 consent of the father, and to those whom he had not put in any 
 way of gaining a livelihood. The legislature, says Baron Montes- 
 quieu considered, that in the first case the father, being uncertain, 
 had rendered the natural obligation precarious ; that in the sec- 
 vind case he had sullied the life he had given, and done his chil- 
 dren the greatest of injuries, in depriving them of their reputa- 
 tion ; and that, in the third case, he had rendered their life, so 
 far as in him lay, an insupportable burthen, by furnishing them 
 with no means of subsistence. 
 
 Our laws agree with those of Athens : with regard to the first 
 only of these particulars, the case of spurious issue. In the other 
 cases the law does not hold the tie of nature to be dissolved by 
 any misbehavior of the parent ; and therefore a child is equally 
 justifiable in defending the person or maintaining the cause 01 
 suit, of a bad parent, as a good one ; and is equally compellable, 
 if of sufficient ability, to maintain and provide for a wicked and 
 unnatural progenitor, as for one who has shown the greatest 
 tenderness and par.ental piety. 
 
 II. We are next to consider the case of illegitimate children, 
 or bastards ; with regard to whom let us inquire, i. Who are 
 bastards. 2. The legal duties of the parents to a bastard child. 
 3. The rights and incapacities attending such bastard children. 
 
 I. Who are bastards. A bastard, by our English laws, is 
 one that is not only begotten, but born, out of lawful matrimony. 
 The civil and canon laws do not allow a child to remain a bas< 
 tard, if the parents afterwards intermarry and herein they differ 
 most materially from our law : which, though not so strict as tc 
 require that the child shall be begotten, *yet makes it an [*455 
 
I70 OF PARENT AND CHILD. 
 
 indispensable condition, to make it legitimate, that it shall be bom, 
 after lawful wedlock." And the reason of our English law is 
 surely much superior to that of the Roman, if we consider the 
 principal end and design of establishing the contract of marriage, 
 taken in a civil light, abstractedly from any religious view, which 
 has nothing to do with the legitimacy or illegitimacy of the chil- 
 dren. The main end and design of marriage, therefore, being to 
 ascertain and fix upon some certain person, to whom the care, 
 the protection, the maintenance, and the education of the chil- 
 dren should belong : this end is, undoubtedly, better answered 
 by legitimating all issue born after wedlock, than by legitimating 
 all issue of the same parties, even born before wedlock, so as wed- 
 lock afterwards ensues : i. Because of the very great uncertainty 
 there will generally be, in the proof that the issue was really be- 
 gotten by the same man ; whereas, by confining the proof to the 
 birth, and not to the begetting, our law has rendered it perfectly 
 certain what child is legitimate, and who is to take care of the 
 child. 2. Because by the Roman law a child may be continued 
 a bastard, or made legitimate, at the option of the father and 
 mother, by a marriage ex post facto ; thereby opening a door to 
 many frauds and partialities, which by our law are prevented. 
 3. Because by those laws a man may remain a bastard till forty 
 years of age, and then become legitimate, by the subsequent 
 marriage of his parents ; whereby the main end of marriage, the 
 protection of infants, is totally frustrated. 4. Because this rule 
 of the Roman law admits of no limitations as to the time or num- 
 ber of bastards so to be legitimated ; but a dozen of them may, 
 twenty years after their birth, by the subsequent marriage of 
 their parents, be admitted to all the privileges of legitimate chil- 
 dren. This is plainly a great discouragement to the matrimo- 
 nial state ; to which one main inducement is usually not only the 
 desire of having children, but also the desire of procreating law- 
 ful ^«>j. Whereas our constitutions guard against this inde- 
 cency, and at the same time give sufficient allowance to the frailties 
 of human nature. For, if a child be begotten while the parents 
 are single, and they will endeavor to make an early reparation 
 *456] for the offense, by *marrying within a few months after, 
 
 " The doctrine of the civil law prevails in a number of the American 
 States, as €. _f. Vermont, Maryland, Kentucky, Indiana, etc., while in others 
 the common-law doctrine is established. (See 91 N. Y. 315; 85 Ind. 397; 
 58 la. 46; 40 Ch. D. 216.) 
 
OF PARENT AND CHILD. 171 
 
 our law is so indulgent as not to bastardize the child, if it be born, 
 though not begotten, in lawful wedlock ; for this is an incident 
 that can happen but once, since all future children will be begot- 
 ten, as well as born, within the rules of honor and civil society. 
 Upon reasons like these we may suppose the peers to have acted 
 at the parliament of Merton, when they refused to enact that 
 children born before marriage should be esteemed legitimate. 
 
 From what has been said, it appears, that all children born 
 before matrimony are bastards by our law : and so it is of all 
 children born so long after the death of the husband, that, by 
 the usual course of gestation, they could not be begotten by 
 him. But, this being a matter of some uncertainty, the law is 
 not exact as to a few days. And this gives occasion to a pro- 
 ceeding at common law, where a widow is suspected to feign 
 herself with child, in order to produce a supposititious heir to 
 the estate : an attempt which the rigor of the Gothic constitu- 
 tions esteemed equivalent to the most atrocious theft, and there- 
 fore punished with death. In this case, with us, the heir pre- 
 sumptive may have a writ de ventre inspiciendo to examine 
 whether she be with child, or not ; and, if she be, to keep her 
 under proper restraint till delivered ; which is entirely conform 
 able to the practice of the civil law : but, if the widow be, upor 
 due examination, found not pregnant, the presumptive heir shaP 
 be admitted to the inheritance, though liable to lose it again, on 
 the birth of a child within forty weeks from the death of a hus- 
 band. But, if a man dies, and his widow soon after marries 
 again, and a child is born .within such a time, as that by the 
 course of nature it might have been the child of either 
 •husband ; in this case he is said to be more than ordi- [*457 
 narily legitimate ; for he may, when he arrives to years of dis- 
 cretion, choose which of the fathers he pleases.^ To prevent 
 this, among other inconveniences, the civil law ordained that no 
 widow should marry infra annum luctus, a rule which obtained 
 so early as the reign of Augustus, if not of Romulus : and the 
 same constitution was probably handed down to our early ances- 
 tors from the Romans, during their stay in this island ; for 
 
 " " But this doctrine, if ever recognized, was too absurd to last, and it 
 was afterwards held to be a question for the jury to determine, according to 
 the evidence, which husband was most likely to be the father." (Broom & 
 Hadley's Comm., i. p. 561.) 
 
,72 OF PARENT AND CHILD. 
 
 we find it established under the Saxon and Danish govern- 
 ments. 
 
 As bastards may be born before the coverture or marriage 
 state is begun, or after it is determined, so also children born 
 during wedlock may in some circumstances be bastards. As if 
 the husband be out of the kingdom of England, or, as the law 
 somewhat loosely phrases it, extra quatuor maria, for above nine 
 months, so that no access to his wife can be presumed, her issue 
 during that period shall be bastards.^* But, generally, during 
 the coverture, access of the husband shall be presumed, unless 
 the contrary can be shown, which is such a negative as can only 
 be proved by showing him to be elsewhere : for the general rule 
 i&, prcesumitur pro legitimatione. In a divorce, amensa et tkoro, 
 if the wife breeds children, they are bastards ; for the law will 
 presume the husband and wife conformable to the sentence of 
 separation, unless access be proved ; but, iji a voluntary separa- 
 tioi. by agreement, the law will suppose access, unless the nega- 
 tive be shown. So also, if there is an apparent impossibility of 
 procreation on the part of the husband, as if he be only eight 
 years old, or the like, there the issue of the wife shall be bas- 
 tards. Likewise, in case of divorce in the spiritual court, a vin^ 
 culo matrimonii, all the issue born during the coverture are 
 *458J bastards ; because such divorce is always upon *some cause, 
 that rendered the marriage unlawful and null from the begin- 
 ning. 
 
 2. Let us next see the duty of parents to their bastard 
 children, by our law ; which is principally that of maintenance. 
 For, though bastards are not looked upon as children to any 
 
 ■■ " But the old doctrine of the quatuor maria was long since exploded : 
 and the child will now be considered illegitimate if he be born under such 
 circumstances as make it impossible that his mother's husband could have 
 begotten him, whether this impossibility arise from non-access, physical 
 infirmity, or other cause : but the presumption of legitimacy still holds to 
 this extent, that if the husband have any opportunity of sexual access during 
 the natural period of gestation, the child will be considered legitimate, 
 though there may be the strongest reason for supposing it the offspring of an 
 adulterer, — the question for the jury in such a case always being, not whether 
 the husband be the father, but whether he could have been such." (Broom & 
 Hadley's Comm. i. p. 562.) The same rule prevails in this country. (See 
 Phillips v. Allen, 2 Allen, 453 ; Van Aernam v. Van Aernam, 1 Barb. Ch. 
 375 ; Dennison v. Page, 29 Penn. St. 420,; Watts v. Owen, 62 Wis. 512.) 
 
OF PARENT AND CHILD. 173 
 
 civil purposes, yet the ties of nature, o£ which maintenance is 
 one, are not so easily dissolved : and they hold indeed as to many 
 other intentions ; as, particularly, that a man shall not marry 
 his bastard sister or daughter. The civil law, therefore, when it 
 denied maintenance to bastards begotten under certain atrocious 
 circumstances, was neither consonant to nature nor reason, how- 
 ever profligate and wicked the parents might justly be esteemed. 
 
 The method in which the English law provides maintenance 
 for them is as follows : When a woman is delivered, or declares 
 herself with child, of a bastard, and will by oath before a justice 
 of peace charge any person as having got her with child, the 
 justice shall cause such person to be apprehended, and commit 
 him till he gives security, either to maintain the child, or appear 
 at the next quarter sessions to dispute and try the fact. But if 
 the woman dies, or is married before delivery, or miscarries, or 
 proves not to have been with child, the person shall be dis- 
 charged ; otherwise the sessions, or two justices out of sessions, 
 upon original application to them, may take order for the keep- 
 ing of the bastard, by charging the mother or the reputed fathei 
 with the payment of money or other sustentation for that pur- 
 pose. And if such putative father, or lewd mother, run away 
 from the parish, the overseers, by direction of two justices, may 
 seize their rents, goods, and chattels, in order to bring up the 
 said bastard child. Yet such is the humanity of our laws, that 
 no woman can be compulsively questioned concerning the father 
 of her child till one month after her delivery ; which indulgence 
 is, however, very frequently a hardship upon parishes, by giving 
 the parents opportunity to escape." 
 
 3. I proceed next to the rights and incapacities which apper- 
 tain to a bastard. The rights are very few, being only such as 
 he can acquire ; for he can inherit nothing, being looked upon 
 as the son of nobody ; and sometimes called ^f/z'^j niillius, some- 
 
 " These acts have been superseded by later statutes, which, however, 
 are adapted to secure substantially the same objects, viz., to make the 
 putative father liable for the maintenance and education of his illegitimate 
 child by means of a proceeding instituted before justices. The mother, 
 however, is not released from her liability to support the child, if the father 
 cannot be made responsible. The acts now regulating this subject are the 
 35 & 36 Vict., ch. 65 ; 36 Vict., ch. 9 ; 43 & 44 Vict., ch. 32. Statutes of a sim- 
 ilar character ha^s been enacted in a number of tlie United States. (See N. Y. 
 Code Crim. Pro. §§ 838-886.) 
 
174 OF PARENT AND CHILD. 
 
 times filius fopuli. Yet he may gain a surname by reputation, 
 though he has none by inheritance. All other children have 
 their primary settlement in their father's parish ; but a bastard 
 in the parish where born, for he hath no father.*' However, in 
 case of fraud, as if a woman be sent either by order of justices, 
 or comes to beg as a vagrant, to a parish where she does not 
 belong and drops her bastard there, the bastard shall, in the 
 first case, be settled in the parish from whence she was illegally 
 removed ; or, in the latter case, in the mother's own parish, if 
 the mother be apprehended for her vagrancy. Bastards also 
 born in any licensed hospital for pregnant women, are settled in 
 the parishes to which the mothers belong. The incapacity of a 
 bastard consists principally in this, that he cannot be heir to any 
 one, neither can he have heirs, but of his own body ; for, being 
 nullius filius, he is therefore of kin to nobody, and has no an- 
 cestor from whom any inheritable blood can be derived." A 
 bastard was also, in strictness, incapable of holy orders ; and, 
 though that were dispensed with, yet he was utterly disqualified 
 from holding any dignity in the church : but this doctrine seems 
 now obsolete ; and, in all other respects, there is no distinction 
 between a bastard and another man. And really any other dis- 
 tinction, but that of not inheriting, which civil policy renders 
 necessary, would, with regard to the innocent offspring of his 
 parents' crimes, be odious, unjust, and cruel to the last degree: 
 and yet the civil law, so boasted of for its equitable decisions, 
 made bastards, in some cases, incapable even of a gift from their 
 parents. A bastard may, lastly, be made legitimate, and capable 
 of inheriting, by the transcendent power of an act of parlia- 
 ment, and not otherwise : as was done in the case of John of 
 Gaunt's bastard children, by a statute of Richard the Second. 
 
 " But now in England, a bastard's settlement depends upon that of the 
 mother until he acquires one of his own. In this country, also, it is fre- 
 quently made to depend upon the mother's settlement. It is a general rule 
 that the mother is entitled to the legal custody of her illegitimate child in 
 preference to the putative father. (See People v. Kling, 6 Barb. 366; 
 Pate's Appeal, 106 Pa. St. 574.) 
 
 1^ In a number of the United States statutes have been enacted, providing 
 that an illegitimate child may, in default of lawful issue, inherit real and per- 
 sonal property from the mother ; and that the mother, or relatives on the 
 mother's side, if such child dies intestate without descendants, shall in like 
 manner inherit from him. Such is the rule in New York. (N. Y. Rev. St. i. 
 753. Laws of 1855, c 547 ; see Elder v. Bales, 127 111. 425.) 
 
OP GUARDIAN AND WARD. 175 
 
 CHAPTER VII. 
 
 [bL. COMM. — BOOK I. CH. XVII.] 
 
 Of Guardian and Ward. 
 
 The only general private relation, now remaining to be dis- 
 cussed, is that of guardian and ward ; which bears a very near 
 resemblance to the last, and is plainly derived out of it : the 
 guardian being only a temporary parent, that is, for so long time 
 as the ward is an infant, or under age. In examining this spe- 
 cies of relationship, I shall first consider the different kinds of 
 guardians, how they are appointed, and their power and duty : 
 next, the different ages of persons, as defined by the law : and 
 lastly, the privileges and disabilities of an infant, or one under 
 age and subject to guardianship. 
 
 I. The guardian with us performs the office both of the tutor 
 and curator of the Roman laws ; the former of which had the 
 charge of the maintenance and education of the minor, the latter 
 the care of his fortune ; or, according to the language of the 
 court of chancery, the tutor was the committee of the person, 
 the curator the committee of the estate. But this office was fre- 
 quently united in the civil law ; as it is always in our law with 
 regard to minors, though as to lunatics and idiots it is commonly 
 kept distinct. 
 
 *0f the several species of guardians, the first are guar- [*461 
 ilians by nature : viz. the father, and, in some cases, the mother 
 of the child. For if an estate be left to an infant, the father is 
 by common law the guardian, and must account to his child for 
 the profits. And, with regard to daughters, it seems by con- 
 struction of the statute 4 and 5 Ph. and Mar. c. 8, that the father 
 might by deed or will assign a guardian to any woman-child 
 under the age of sixteen ; and, if none be so assigned, the mother 
 shall in this case be guardian. There are also guardians for 
 nurture; which are, of course, the father or mother, till the in- 
 fant attains the age of fourteen years : and in default of father 
 or mother, the ordinary usually assigns some discreet person to 
 
i;6 OF GUARDIAN AND WARD. 
 
 take care of the infant's personal estate, and to provide for his 
 maintenance and education. Next are guardians in socage, (an 
 appellation which will be fully explained in the second book of 
 these Commentaries,) who are also called guardians by the com- 
 mon law.^ These take place only when the minor is entitled to 
 
 1 These several varieties of guardianship, viz., by nature, by nurture, anri 
 in socage, are still recognized in English and American law, though the 
 relation of guardian and ward is now so frequently created in other methods 
 that they have lost much of their former importance. In this country, more- 
 over, the changes which have been wrought in the laws of inheritance have 
 had an important effect upon these forms of guardianship, h guardian by 
 nature, by the English law, had charge of the person, but not of the prop- 
 erty, of the heir-apparent, until he reached the age of 2i. An heir-apparent 
 is one who, if he survives, has an indefeasible right to inherit from liis an- 
 cestor ; as, in England, the eldest son. This guardianship did not extend 
 to the other children, and was vested in the father, or, in case of his death, 
 in the mother. Under the laws of inheritance in the United States, by 
 which all the children inherit equally, this guardianship extends to all the 
 children, and is in fact substantially equivalent to the relation of parent 
 and child, and has the usual legal consequences considered in law under 
 that topic. A guardian by nurture also had charge only of the child's 
 person, but his right continued only until the child became 14. This 
 guardianship applied to all the children except the heir-apparent, and was 
 vested, first, in the father, secondly, in the mother. In this country, where 
 there is no distinction between an heir-apparent and the other children, it is 
 evidently the same as guardianship by nature. A guardian in socage, had 
 the custody of the infant's lands as well as his person, but only of lands ob- 
 tained by descent. If the infant also had personal properly, the guardian 
 might take charge of that also. This guardianship devolved upon the next 
 of kin, who could not possibly inherit the estate. It continued until the 
 infant became 14, and would then cease if the infant chose another guar- 
 dian, as he might do ; but if this was not done, it continued still longer. In 
 some of the United States, this kind of guardianship still exists, though the 
 rule that the guardian must be incapable of inheriting the estate, has been 
 generally changed. Thus, in New York, if an infant acquires lands, the 
 guardianship belongs (i) to the father, (2) to the mother, (3) to the nearest 
 and eldest relative of full age, males being preferred to females. But the 
 authority of such a guardian is superseded by the appointment of a testa- 
 mentary or other guardian. (Rev. St. i. 718; 105 N. Y. 560.) There may 
 be also, by the common law, a guardian by estoppel. Thus, when one 
 wrongly meddles with an infant's property, as by receiving the rents and 
 profits, he may be called to account as a guardian, and will be estopped to 
 deny that he lias acted in that capacity. 
 
 These kinds of guardianship, heretofore considered, are such as exist by 
 operation of law, without any appointment being necessary. But guardians are 
 more frequently appointed by some court, or by the infant's parents. Guardians 
 
OF GUARDIAN AND WARD. 177 
 
 some estate in lands, and then by the common law the guardian- 
 ship devolves upon his next of kin, to whom the inheritance can 
 not possibly descend ; as, where the estate descended from his 
 father, in this case his uncle by the mother's side cannot possi- 
 bly inherit this estate, and therefore shall be the guardian. For 
 the law judges it improper to trust the person of an infant in his 
 hands, who may by possibility become heir to him ; that there 
 may be no temptation, nor even suspicion of temptation, for him to 
 abuse his trust. The Roman laws proceed on a quite contrary prin- 
 ciple, committing the care of the minor to him who is the next to 
 succeed to the inheritance, presuming that the next heir would take 
 the best care of an estate, to which he has a prospect of succeed- 
 ing; and this they boast to be " suinma providentia." But in the 
 mean time they seem to have forgotten, how much it is the 
 •guardian's interest to remove the incumbrance of his [*462 
 pupil's life from that estate for which he is supposed to have so 
 great a regard. And this affords Fortescue, and Sir Edward 
 
 appointed by courts, are either, (i) gziardians in chancery, {2) guardians ad 
 litem, {■^) guardians appointedby probate or surrogate courts : those appointee' 
 by parents are testamentary guardians. In the first two forms of guardianship, 
 the appointment is made by virtue of an inherent power in the court; in the 
 last two, the power to appoint is conferred by statute, (i) In England, the 
 court of chancery has, from an early period, exercised the power of appoint- 
 ing guardians to take the custody of minors and their estates. In the 
 United States, courts of equity are generally invested with the same 
 authority, their power in this respect being frequently prescribed bj 
 statute. If the infant be over 14 at the time of appointment, he is usuallj 
 allowed by the court to choose a guardian for himself; but, if under 14, the 
 court makes its own choice, with due regard, of course, to the wishes o< 
 relatives. The guardian's authority ceases when the ward becomes 21. (2,) 
 A guardian ad litem [i.e., for the litigation) may be appointed by any court 
 .n which an action is pending, to which the infant is a party. This is usually 
 an attorney-at-law. The duty of such a guardian is to represent the infant 
 in the suit and attend to its interests. (3) It is quite common to confer 
 power by statute, upon probate and surrogate courts, to appoint guardians. 
 The infant, if over 14, may usually choose the guardian, but not if under 14. 
 Such guardians are primarily under the control of the probate court, but the court 
 of chancery also has jurisdiction over them. (4) Testamentary guardians are 
 those appointed by the father's will. The statute 12 Charles II., which first gave 
 this power in England, has been generally adopted in this country, or statutes 
 of similar purport have been enacted. Such guardians are also under the con- 
 trol of courts of equity. Their power generally lasts during the ward's minority, 
 and extends both to his person and property. All guardians having charge of 
 an infant's estate are generally required to give bonds for the feithful perform- 
 ance of their duties. 
 
 12 
 
178 OF GUARDIAN AND WARD. 
 
 Coke, an ample opportunity for triumph ; they affirming, that to 
 commit the custody of an infant to him that is next in succes- 
 sion is " quasi agnum committere lupo, ad devorandum." These 
 guardians in socage, like those for nurture, continue only till the 
 minor is fourteen years of age ; for then, in both cases, he is 
 presumed to have discretion, so far as to choose his own guar- 
 dian. This he may do, unless one be appointed by the father, 
 by virtue of the statute 12 Car. II.,c. 24, which, considering the 
 imbecility of judgment in children of the age of fourteen, and 
 the abolition of guardianship in chivalry (which lasted till the 
 age of twenty-one, and of which we shall speak hereafter), en- 
 acts, that any father, under age or of full age, may by deed or 
 will dispose of the custody of his child, either born or unborn, 
 to any person, except a popish recusant, either in possession or 
 reversion, till such child attains the age of one-and-twenty years.* 
 These are called guardians by statute, or testamentary guardians. 
 There are also special guardians by custom of London, and other 
 places ; but they are particular exceptions, and do not fall under 
 the general law. 
 
 The power and reciprocal duty of a guardian and ward are 
 the same, pro tempore, as that of a father and child ; and there- 
 fore I shall not repeat them, but shall only add, that the guardian, 
 *463] when the ward comes of age, is bound to give *him an 
 account of all that he has transacted on his behalf, and must an 
 swer for all losses by his wilful default or negligence.' In ordei 
 
 •^ All religious disabilities are now removed. 
 
 ' The authority of the guardian over the ward's person is not, in all respects, 
 identical with that which a father possesses, nor are his rights and obligations 
 strictly the same, though this is true to a large extent. The guardian is undtf 
 no obligation to support the child, except from the child's own property, nor 
 has he any right to the ward's labor and services. But if the parents are dead 
 or incompetent, he has, in general, a right to the custody of the ward and may 
 direct his education. (^Gott v. Culp, 45 Mich. 265.) And if the parents aie 
 dead, he may change the ward's domicile within the same State. {Lamar v. 
 Micou, W2 U. S. 452.) The guardian usually has the same power as a father 
 to bind out the child as an apprentice, but this matter is commonly governed 
 by statutes. Guardianship of \kii, person ends when the ward marries, and, 
 according to the weight of authority, guardianship of the property also, if the 
 ward is a female. Thtguardian's powers in reference to t\i& personal property 
 of the ward are quite ample. He may sell and dispose of such property, whether 
 it consist of tangible property or of rights in action, and confer a good title 
 upon the purchaser, unless such power is limited by statute or otherwise. (7 
 
OF GUARDIAN AND WARD. 179 
 
 therefore to prevent disagreeable contests with young gentlemen, 
 it has become a practice for many guardians, of large estates 
 especially, to indemnify themselves by applying to the court of 
 
 Johns. Ch. ijo.) But he cannot, in general, convert personalty into realty 
 or vice versa without leave of court. Whatever personal property the ward 
 becomes entitled to, as, e. g., a bequest in a will, or a distributive share of an 
 intestate's estate, etc., passes into the guardian's control. But as regards the 
 ward's real estate, his authority is more limited. His chief right is to receive 
 the rents and profits, and to place the land upon lease during the ward's minor- 
 ity. (StoughtorCs Appeal, 88 Pa. St. 198 ; Genet v. Talmadge, i Johns. Ch, 
 561.) He is not permitted to erect buildings upon the ward's land, and ho!- 
 the ward responsible foathe expense incurred, unless he obtain authority from 
 the proper court. {Hassard v. Roe, ii Barb. 22.) The power to order a 
 sale of the infant's real estate generally belongs to the court of chancery; and 
 the method in which such sales are to be conducted is usually regulated by 
 statute, and by rules of court thereby authorized. Power to make such sales 
 is wont to be allowed, when it is deemed advantageous for the infant's interests, 
 but a careful investigation is usually required to be made as to the nature and 
 amount of the ward's property, and the reasons for disposing of it, before such 
 authority will be granted. (See Elwoodv. Northrup, 106 N. Y. 172; Strong 
 v. Moe, 8 Allen, 125 ; see 44 & 45 Vict. c. 41, ss. 41-44.) 
 
 The duties of a guardian are to so keep charge of the ward's person and 
 education, and to manage and attend to his property, that the interests of the 
 ward will be best promoted. For his position is really that of a trustee, and, 
 as in all cases of trust, he must consult solely the ward's advantage and not 
 his own. Hence he cannot derive any personal gain from the use of the ward's 
 money ; and whatever profit is derived from an investment of such money 
 belongs to the ward only. So if any profit is gained from any contract into 
 which he enters on the infant's behalf, the infant is entitled to it. The mode 
 in which investments of the ward's property shall ,be made is frequently pre- 
 scribed by statute or rules of court {Latnar v. Micoti, 112 U. S. 452) ; and 
 if the guardian suffers the property to remain in an unproductive condition for 
 an unreasonable length of time, he will be liable for simple interest thereon. 
 If he is guilty of flagrant violation of duty or gross delinquency, as if he wil- 
 fully wastes the ward's money, or commits fraud, he may be compelled to pay 
 compound interest. (56 Mich. 508.) So if he purposely injures the ward's 
 real property or personal chattels, as by damaging a house, etc., he may be 
 held liable in heavy damages. In cases of improper conduct, he may be re- 
 moved by the court, and another guardian appointed in his stead. {Ex parte 
 Cooper, 2 Paige, 34.) Fixed habits of intemperance have been held a suffi- 
 cient ground of removal. {Kettletas v. Gardner, \ Paige, 488.) Guardians 
 may be required to give an account of their dealings with the ward's property 
 from time to time \ and in case of their removal, or the arrival of the ward at 
 majority, it is a matter of course to require such an accounting and for the 
 guardian to pay over the balance in his hands. {Skidmore v. Davies, 10 Paige, 
 316.) Upon an accounting, the guardian is charged with the assets of the 
 estate, with profits and income which he did obtain or should have obtained, 
 etc., while he is allowed for proper expenditures, unavoidable losses, etc. The 
 
i8o OF GUARDIAN AND WARD. 
 
 chancery, acting under its direction, and accounting annuallj 
 before the officers of that court. For the lord chancellor is, by 
 right derived from the crown, the general and supreme guardian 
 of all infants, as well as idiots and lunatics ; that is, of all such 
 persons as have not discretion enough to manage their own con- 
 cerns. In case therefore any guardian abuses his trust, the 
 court will check and punish him ; nay, sometimes will proceed to 
 the removal of him, and appoint another in his stead. 
 
 2. Let us next consider the ward or person within age, for 
 whose assistance and support these guardians are constituted by 
 law ; or who it is, that is said to be within age. The ages of 
 male and female are different for different purposes. A male at 
 twelve years old may take the oath of allegiance ; at fourteen is 
 at years of discretion, and therefore may consent or disagree to 
 marriage, may choose his guardian, and, if his discretion be actu- 
 ally proved, may make his testament of his personal estate ; ' at 
 seventeen may be an executor ; and at twenty-one is at his own 
 disposal, and may alien his lands, goods and chattels. A female 
 also at seven years of age may be betrothed or given in marriage ; 
 at nine is entitled to dower ; at twelve is at years of maturity, 
 and therefore may consent or disagree to marriage, and, if 
 proved to have sufficient discretion may bequeath her persona) 
 estate ; zl fourteen is at years of legal discretion, and may choose 
 a guardian ; at seventeen may be executrix ; and at twenty-one 
 may dispose of herself and her lands. So that full age in male 
 
 compensation of the guardian is generally regulated by statute, and is com- 
 monly a certain percentage upon moneys received and paid out. Transactions 
 between the guardian and ward are carefully scrutinized by courts of equity, 
 in order that no advantage may be taken of the ward ; and even after the 
 ward attains majority, contracts between him and the guardian will not be 
 deemed valid, unless sufficient time has elapsed to render it reasonably pre- 
 sumable that the guardian's authority is no longer so influential with the child 
 as to govern or bias his actions. ( Wade v. Pulsifer, 54 Vt. 45.) 
 
 * As to the capacity of infants to make a valid will, see post, p. 596, note 2 ; 
 as to their capacity to marry, see ante, p. 146, note 9. An infant may be 
 named as executor in a will, or may be primarily entitled by law to be appointed 
 administrator, but it is now the rule in England and generally in this country, 
 that he cannot act as such until he becomes twenty-one. D,uring his minority, 
 therefore, administration will be granted to some other person, as, e.g., his 
 guardian. (S)e.e. post, p. 602.) It is a general rule that infants attain majority 
 at twenty-one ; but in some American States female infants become of age at 
 eighteen, as, «.^., Vermont, Ohio, Iowa, etc. Blackstone's rule as to the 
 betrothal or the dower right of female infants has no modern examples. 
 
OF GUARDIAN AND WARD, i8i 
 
 or female is twenty-one years, which age is completed on the day 
 preceding the anniversary of a person's birth, who till that time 
 is an infant, and so styled in law. Among the ancient Greeks 
 and Romans women were never *of age, but subject to per- [*464 
 petual guardianship, unless when married, " nisi convenissent in 
 manitm viri :" and, when that perpetual tutelage wore away in 
 process of time, we find that, in females as well as males, full 
 age was not till twenty-five years Thus, by the constitution of 
 different kingdoms, this period, which is merely arbitrary, and 
 juris positivi, is fixed at different times. Scotland agrees with 
 England in this point ; both probably copying from the old 
 Saxon constitutions'on the continent, which extended the age of 
 minority " ad annum vigesimiim primum, et eo usqiie juvenes sub 
 tutelam reponunt ;" but in Naples they are of full age at eigh- 
 teen ; in France, with regard to marriage, not till thirty ; and in 
 Holland at twenty-five. 
 
 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 in- 
 fant cannot be sued but under the protection, and joining the 
 name, of his guardian ; for he is to defend him against all attacks 
 as well by law as otherwise :' but he may sue either by his guar- 
 dian, ox 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 criminal cases, an infant of the age of fourteen 
 years may be capitally punished for any capital offence : but un- 
 der the age of seve?i he cannot. The period between seven and 
 fourteen is subject to much uncertainty : for the infant shall, 
 generally speaking, be judged prima facie innocent ; yet if he 
 was doli capax, and could discern between good and evil at the 
 time of the offence committed, he may be convicted and undergo 
 judgment and execution of death, though he hath not attaineo 
 to years of puberty or *discretion. And Sir Matthew Hale [*465 
 
 ' An infent sues or is sued in his own name as any other person, but 
 appears to maintain or defend his cause by guardian, it being within the 
 authority of every court to appoint a guardian ad litem, where one of the 
 parties is an infant. 
 
 In some of the United States, as in New York, an infant does not appear 
 by " next friend," but only by guardian ad litem duly appointed. 
 
1 82 OF GUARDIAN AND WARD. 
 
 gives us two instances, one of a girl of thirteen, whc was burned 
 for killing her mistress ; another of a boy still younger, that had 
 killed his companion, and hid himself, who was hanged ; for it 
 appeared by his hiding that he knew he had done wrong, and 
 could discern between good and evil : and in such cases the 
 maxim of law is, that malitia supplet cetatem. So also, in much 
 more modern tinies, a boy of ten years old, who was guilty of a 
 heinous murder, was held a proper subject for capital punish- 
 ment, 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 
 general, that an infant shall lose nothing by non-claim, or neg- 
 lect of demanding his right ; nor shall any other laches or negli- 
 gence 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 reckoning 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 is true, that infants cannot alien their es- 
 tates : but infant trustees, or mortgagees, are enabled to convey, 
 under the direction of the court of chancery or exchequer, or 
 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 : yet an infant, who has 
 had an advowson, may present to the benefice when it becomes 
 void. For the law in this case dispenses with one rule, in order 
 *466] to maintain others of far *greater consequence : it permits 
 an infant to present a clerk, who, if unfit, may be rejected by the 
 bishop, rather than either suffer the church to be unserved till 
 he comes of age, or permit the infant to be debarred of his right 
 by lapse to the bishop. An infant may also purchase lands, but 
 his purchase is incomplete : for, when he comes to age, he may 
 either agree or disagree to it, as he thinks prudent or proper, 
 without alleging any reason ; and so may his heirs after him, if 
 he dies without having compelled his agreement. It is, farther 
 
OF GUARDIAN- AND WARD. 183 
 
 generally true, that an infant, under twenty-one, can make no 
 deed but what is afterwards voidable : yet in some cases he may 
 bind himself apprentice by deed indented 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 in- 
 fant can make no other contract that will bind him : yet he may 
 bind himself to pay for his necessary meat, drink, apparel, phys- 
 ic, and such other necessaries ; and likewise for his good teach- 
 ing and instruction whereby he may profit himself afterwards. 
 And thus much, at present, for the privileges and disabilities of 
 infants.' 
 
 ° /. An Infant's Liability upon Contract. — It has been provided in Eng- 
 land by statute, passed Aug. 7, 1874, that all contracts which before by law 
 were voidable, whether by specialty or by simple contract, entered into by 
 infants for the repayment of money lent, or for goods supplied (other than 
 contracts for necessaries) and all accounts stated with infants shall be ab- 
 solutely voids and no action shall be brought upon any ratification made 
 after full age of such contracts, whether such ratification be based upon a 
 new consideration or not. (37 & 38 Vict., ch. 62.) 
 
 This statute sets at rest in England a question about which there has 
 been from early times no little controversy, viz., whether an infant's contracts 
 are void or voidable. Formerly the tendency was to hold agreements to be 
 void which were not plainly for the infant's benefit, while in modern times 
 the opposite view has been taken, and an infant's contracts generally de- 
 clared voidable. Such had come to be the rule in England before this 
 statute, and such still continues to be the rule in the United States. The 
 distinction is of much importance, because if the contract be voidable only, 
 it will be at the option of the infant to ratify or disaffirm it on coming of age, 
 while if it be void, it is incapable of ratification. If an infant make a con- 
 veyance of his lands, he may disaffirm upon attaining majority, and bring an 
 action of ejectment to recover possession. [Bool v. Mix, 17 Wend. 119.) 
 In the case of wild and vacant lands, a conveyance to another will be a suf- 
 ficient disaffirmance. {^Wallace v. Carpenter, \\ Johns. 539.) In some 
 States, it is held that ejectment may be brought at any time within 20 years 
 after coming of age, or within the usual period of limitation. * But some 
 positive act of disaffirmance is necessary in order to avoid the conveyance. 
 {Voorhies v. Voorhies, 24 Barb. 150; Sims v. Bardoner, 86 Ind. 87.) If 
 an infant has purchased real estate, it will be deemed a ratification, if after 
 becoming of age, he retains possession and exercises acts of ownership 
 over the property. {Henry v. Root, 33 N. Y. 526.) Sales of personal 
 property by infants may be avoided by them during minority, or within a 
 reasonable time afterwards, by any proper act of disaffirmance, as by bring- 
 ing suit to recover the property. {Stafford v. Roof, 9 Cow. 626; 73 Me. 
 252 ; 49 N. Y. 407.) An unconditional re-sale of the property is such an 
 act. {State v. Plaisted, 43 N. H. 413.) If the infant had purchased personal 
 
 * See Irvine v. Irvine, 9 Wall. 617: Sims v. Everhart, 102 U. S. 300. Some States allow 
 Only a " reasonable time " after reaching majority. (31 Minn. 468.) 
 
1 84 OF CORPORA TIONS. 
 
 CHAPTER VIII. 
 
 [bL. COMM. BOOK I. CH. XVIII.] 
 
 Of Corporations. 
 
 We have hitherto considered persons in their natural capaci- 
 ties and have treated of their rights and duties. But, as all per- 
 sonal rights die with the person ; and, as the necessary forms of 
 investing a series of individuals, one after another, with the same 
 identical rights, would be very inconvenient, if not impractica- 
 
 property, a retention and use thereof after majority for an unreasonable length 
 of time, would be an affirmance. {Boyden v. Boyden, g Mete. 519-) Bonds, 
 promissory notes, and other executory contracts of an infant will not be 
 enforceable unless he ratifies them on attaining majority. (96 N. Y. 201 ; 
 see 114 Mass. 399.) But if the infant has acquired any property under the 
 contract or derived any pecuniary benefit, he should, as a general rule, return 
 this to the other party on rescinding the agreement, so as to restore him, as 
 far as possible, to the same condition as before the contract was made.* (106 
 111. 519; 17 Barb. 428. For the special Mass. rule, see 97 Mass. 508.) If 
 an infant makes a contract to serve for a certain time, he may leave the em- 
 ployment before the time has expired, and still be entitled to recover for the 
 value of the services actually rendered. (3 Denio, 375; no Mass. 137.) 
 The defense of infancy is personal to the infant himself and his representa- 
 tives, and cannot be asserted by others. (96 N. Y. 201 ; 97 Mass. 508.) 
 
 There is one exception, of great importance, to the rule that an infant's 
 contracts are voidable, and that is in regard to contracts for "necessaries,^'' 
 which are held binding. This exception is estabiislied for the infant's bene- 
 fit, so that he may be able to procure the means of subsistence. Under 
 the term " necessaries," would be included food, lodging, clothing, medi- 
 cine, etc. Such articles would come within this category as were suitable 
 to the infant's position and station in life ; so that what would be necessaries 
 in one case, might not be so in another. Diversity in wealth and social 
 station would cause an important difference in this respect. {Atchison v. 
 Bruff, 50 Barb. 381 ; Hyder v. Wombwell, L. R. 4 Ex. 32 ; see 86 Ind. 373.) 
 What classes of articles are comprehended in the term " necessaries," is for 
 the court to determine upon, and to state as matter of law to the jury, while 
 the jury decide as matter of fact, whether particular articles, in the special 
 case under trial, come within any of these classes. But though an infant is 
 liable for necessaries, he is not necessarily bound to pay the price agreed 
 upon; and the reasonableness of this may be inquired into by the court 
 
 * But if he cannot do this, he may still rescind. {Green v. Green, 69 N. Y. 5S3S 
 Chandler v. Simmons, 97 Mass. 508; see 59 N. H. 354.) 
 
OF CORP uRA TIONS. 1 85 
 
 ble ; it has been found necessary, when it is for the advantage 
 of the public to have any particular rights kept on foot and con- 
 tinued, to constitute artificial persons, who may maintain a per- 
 petual succession, and enjoy a kind of legal immortality. 
 
 These artificial persons are called bodies politic, bodies cor- 
 porate, {corpora corporatd), or corporations : of which there is a 
 great variety subsisting, for the advancement of religion, of learn- 
 
 and, if excessive, it will be reduced to the real value of the goods. More- 
 over, if the infant's support is provided for by his father, guardian, or friends, 
 he will not be responsible even for necessaries : one who furnishes articles 
 to him is bound to make due inquiry as to his need of them, and acts at his 
 peril in relying upon the infant's responsibility. (13 Q. B. D. 410; 19 id. 
 509 ; 2 Paige, 419.) So if the goods be furnished upon the father's credit, the 
 infant is relieved from accountability for the payment. (See 1 14 Mass. 397.) 
 
 //. Liability for Torts. — It is a general rule that an infant is responsible 
 for his torts ; as, for assault and battery, for conversion (i. e., the wrongful 
 appropriation of another's chattels), for negligence causing injury, etc. {Bul- 
 lock v. Babcock, 3 Wend. -391 ; Conklin v. Thompson, 29 Barb. 218; Free- 
 man v. Boland, 14 R. I. 39.) But, in some cases, a tort is connected with a 
 contract, and an infant is then held irresponsible, whenever to hold him liable 
 on the ground of tort would be virtually to render him responsible upon his 
 contract obligations. His contracts cannot be enforced, either directly or 
 indirectly, unle.ss duly ratified. Thus, if an infant be guilty of fraud in mak- 
 ing a contract, he cannot be sued upon the contract, nor in tort for the fraud. 
 (See Moore v. Eastman, i Hun. (N. Y.) 578; Lowell v. Daniels, 2 Gray, 
 l6i ; and see Studwell v. Shapter, 54 N. Y. 249.) But if goods were fur- 
 nished to the infant, under the contract, and he should avail himself of his 
 infancy to avoid payment, the vendor might reclaim the goods, as having 
 never parted with his property in them. {Badger v. Phinney, 15 Mass. 359.) 
 For fraud, however, not connected with contract, an infant will be liable. 
 So, although a contract be entered into, if the tort connected with it be a 
 wilful and distinct wrong, and in reality independent of the agreement, 
 though made possible by it, the infant will be responsible on the ground of 
 tort ; as if, for example, an infant should hire a horse and treat it with such 
 wilful violence and cruelty as to cause its death. (Campbell v. Stakes, 2 
 Wend. 137; Barnard v. Haggis, 14 C. B. N. S. 45; Hall v. Corcora?i, 107 
 Mass. 251.) An infant who falsely represents himself to be of full age, and 
 thus induces another to contract with him is not liable for the fraud. {Nash 
 v. Jewett, 61 Vt. 501 ; Conrad v. Lane, 26 Minn. 389 ; Contra, Rice v. Boyer, 
 108 Ind. 472.) But courts of equity sometimes grant relief in such cases. 
 {(/nity Bank Case, 3 De Gex & Jones, 63.) A father is not liable for the 
 torts of his minor child, unless the latter was acting as his servant or agent. 
 {Schaefer v. Osier brink, 67 Wis. 495 ; Hagerty v. Powers, 66 Cal. 368 ; Baker 
 v. Morris, 33 Kan. 580.) 
 
 ///. Liability for Crime. — The general rules, stated in the text, in regard 
 to responsibility on this ground, still prevail. (See post, p. 863, note I ; 
 People V. Kendall, 25 Wend. 399.) 
 
1 86 OF CORPORA TIONS. 
 
 ing, and of commerce ; in order to preserve entire and for evei 
 those rights and immunities, which, if they were granted only to 
 those individuals of which the body corporate is composed, 
 would upon their death be utterly lost and extinct. To show 
 the advantages of these incorporations, let us consider the case 
 of a college in either of our universities, founded ad studendum 
 et orandum, for the encouragement and support of religion and 
 learning. If this were a mere voluntary assembly, the individu- 
 als which compose it might indeed read, pray, study, and per- 
 form scholastic exercises together, so long as they could agree 
 *468] to do so : but they *could neither frame, nor receive any 
 laws or rules of their conduct ; none at least, which would have 
 any binding force, for want of a coercive power to create a sufifi- 
 cient obligation. Neither could they be capable of retaining any 
 privileges or immunities : for, if such privileges be attacked, 
 which of all this unconnected assembly has the right, or ability, 
 to defend them.' And, when they are dispersed by death or 
 otherwise, how shall they transfer these advantages to another 
 set of students, equally unconnected as themselves t So also, 
 with regard to holding estates or other property, if land be 
 granted for the purposes of religion or learning to twenty indi- 
 viduals not incorporated, there is no legal way of continuing the 
 property to any other persons for the same purposes, but by end- 
 less conveyances from one to the other, as often as the hands 
 are changed. But when they are consolidated and united into a 
 corporation, they and their successors are then considered as one 
 person in law : as one person, they have one will, which is col- 
 lected from the sense of the majority of the individuals : this one 
 will may establish rules and orders for the regulation of the 
 whole, which are a sort of municipal law of this little republic ; 
 or rules and statutes may be prescribed to it at its creation, which 
 are then in the place of natural laws : the privileges and immu- 
 nities, the estates and possessions, of the corporation, when once 
 vested in them, will be for ever vested, without any new convey- 
 ance to new successions ; for all the individual members that 
 have existed from the foundation to the present time, or that 
 shall ever hereafter exist, are but one person in law, a person 
 that never dies : in like manner as the river Thames is still the 
 same river, though the parts which compose it are changing 
 every instant. 
 
Oh CORPORATIONS. 187 
 
 The honor of originally inventing these political constitutions 
 entirely belongs to the Romans. They were introduced, as Plu- 
 tarch says, by Numa ; who finding, upon his accession, the citj 
 torn to pieces by the two rival factions of Sabines and Romans, 
 thought it a prudent and politic measure to subdivide these two 
 into many smaller ones, by *instituting separate societies [*469 
 of every manual trade and profession. They were afterwards 
 much considered by the civil law, in which they were called uni- 
 versitates, as forming one whole out of many individuals ; or col- 
 legia, from being gathered together : they were adopted also by 
 the canon law, for the maintenance of ecclesiastical discipline ; 
 and from them our Spiritual corporations are derived. But our 
 laws have considerably refined and improved upon the invention, 
 according to the usual genius of the English nation : particularly 
 with regard to sole corporations, consisting of one person only, 
 of which the Roman lawyers had no notion ; their maxim being 
 that " tres faciunt collegium" Though they held, that if a cor- 
 poration, originally consisting of three persons, be reduced to 
 one, " si universitas ad unum redit" it may still subsist as a cor- 
 poration, " et stet nomen wiiversitatis ." 
 
 Before we proceed to treat of the several incidents of corpo- 
 rations, as regarded by the laws of England, let us first take a 
 view of the several sorts of them ; and then we shall be better 
 enabled to apprehend their respective qualities. 
 
 The first division of corporations is into aggregate and sole. 
 Corporations aggregate consist of many persons united together 
 into one society, and are kept up by a perpetual succession of 
 members, so as to continue forever : of which kind are the mayor 
 and commonalty of a city, the head and fellows of a college, the 
 dean and chapter of a cathedral church. Corporations sole con- 
 sist of one person only and his successors, in some particular sta- 
 tion, who are incorporated by law, in order to give them some 
 legal capacities and advantages, particularly that of perpetuity, 
 which in their natural persons they could not have had.* In this 
 
 1 Sole corporations are very rare in the United States. But in Massa- 
 chusetts, it has been held that a minister seized of parsonage lands, in the 
 right of the parish, is, for this purpose, a sole corporation. (Brunswick v. 
 Dunning, 7 Mass. 447.) So, in New York, where, by statute, a joint stock 
 company may be sued in the nanr.e of its president (or treasurer), this officei 
 is deemed a corporation sole, for the purpose of bringing actions. ( West 
 cott V. Fargo, 61 N. Y. 542.) 
 
1 88 OF CORPORATIONS. 
 
 sense, ihekingis a sole corporation ; so is a bishop; so :resonj8 
 deans, and prebendaries, distinct from their several chapters ; 
 and so is every parson and vicar. And the necessity, or at least 
 use, of this institution will be very apparent, if we consider the 
 *470] case of *a parson of a church. At the original endowment 
 of parish churches, the freehold of the church, the church-yard, 
 the parsonage house, the glebe, and the tithes of the parish, were 
 vested in the then parson by the bounty of the donor, as a tem- 
 poral recompense to him for his spiritual care of the inhabitants, 
 and with intent that the same emoluments should ever after- 
 wards continue as a recompense for the same care. But how 
 was this to be effected t The freehold was vested in the par- 
 son ; and, if we suppose it vested in his natural capacity, on his 
 death it might descend to his heir, and would be liable to his 
 debts and incumbrances : or, at best, the heir might be compella- 
 ble, at some trouble and expense, to convey these rights to the 
 succeeding incumbent. The law therefore has wisely ordained, 
 that the parson, quatenus parson, shall never die, any more than 
 the king ; by making him and his successors a corporation. By 
 which means all the original rights of the parsonage are pre- 
 served entire to the successor: for the present incumbent, and 
 his predecessor who lived seven centuries ago, are in law one and 
 the same person; and what was given to the one was given to 
 the other also. 
 
 Another division of incorporations, either sole or aggregate, 
 is into ecclesiastical and lay. Ecclesiastical corporations are where 
 the members that compose it are entirely spiritual persons: 
 such as, bishops ; certain deans, and prebendaries ; all archdea- 
 cons, parsons, and vicars ; which are sole corporations ; deans 
 and chapters at present, and formerly prior and convent, abbot 
 and monks, and the like, bodies aggregate. These are erected 
 for the furtherance of religion, and perpetuating the rights of the 
 church.'' Lay corporations are of two sorts, civil and eleemosyti' 
 ary. The civil are such as are erected for a variety of tem- 
 poral purposes. The king, for instance, is made a corporation to 
 prevent in general the possibility of an interregnum or vacancy 
 of the throne, and to preserve the possessions of the crown en- 
 
 " Ecclesiastical corporations, in the strict legal meaning of the phrase, do 
 not exist in the United States. Religious bodies and associations ?n thi» 
 country are civil corporations. {Robertson v. Bullions, ii N. Y. 243.) 
 
OF CORPORATIONS. 189 
 
 tire ; for im.nediately upon the demise of one king, his successor 
 is, as we have formerly seen, in full possession of the regal rights 
 and dignity. Other lay corporations are erected for the good 
 government of *a town or particular district, as a mayor [*471 
 and commonalty, bailiff and burgesses, or the like : some fcr the 
 advancement and regulation of manufactures and commerce ; as 
 the trading companies of London, and other towns : and some 
 for the better carrying on of divers special purposes ; as church 
 wardens, for conservation of the goods of the parish ; the col- 
 lege of physicians and company of surgeons in London, for the 
 improvement of th^ medical science ; the royal society, for the 
 advancement of natural knowledge ; and the society of antiqua- 
 ries for promoting the study of antiquities. And among these I 
 am inclined to think the general corporate bodies of the univer- 
 sities of Oxford and Cambridge must be ranked : for it is clear 
 they are not spiritual or ecclesiastical corporations, being com 
 posed of more laymen than clergy : neither are they eleemosyn- 
 ary foundations, though stipends are annexed to particular 
 magistrates and professors, any more than other corporations 
 where the acting officers have standing salaries ; for these are 
 rewards /ra opere et labors, not charitable donations only, since 
 every stipend is preceded by service and duty : they seem there- 
 fore to be merely civil corporations. The eleemosynary sort are 
 such as are constituted for the perpetual distribution of the free 
 alms, or bounty, of the founder of them to such persons as he 
 has directed. Of this kind are all hospitals for the maintenance 
 of the poor, sick, and impotent : and all colleges both in our uni- 
 versities and out of them : which colleges are founded for two 
 purposes ; i. For the promotion of piety and learning by proper 
 regulations and ordinances. 2. For imparting assistance to the 
 members of those bodies, in order to enable them to prosecute 
 their devotion and studies with greater ease and assiduity. And 
 all these eleemosynary corporations are, strictly speaking, lay and 
 not ecclesiastical, even though composed of ecclesiastical per- 
 sons, and although they in some things partake of the nature, 
 privileges, and restrictions of ecclesiastical bodies.' 
 
 ' There are also other important distinctions between corporations which 
 deserve mention. Thus civil corporations are distinguished as public and 
 private. Public corporations are such as are established for purposes of 
 government, and invested with political powers, as cities and 'Ullages ; these 
 
fgo OF CORPORATIONS. 
 
 *472] *Having thus marshalled the several species of corpora- 
 tions, let us next proceed to consider, i. How corporations in gen. 
 eral may be created. 2. What are their powers, capacities, and 
 incapacities. 3. How corporations are visited. And 4. How 
 they may be dissolved. 
 
 I. Corporations, by the civil law, seem to have been created 
 by the mere act, and voluntary association of their members ; 
 provided such convention was not contrary to law, for then it 
 was illicitum collegium. It does not appear that the prince's 
 consent was necessary to be actually given to the foundation of 
 them ; but merely that the original founders of these voluntary 
 and friendly societies, for they were little more than such, should 
 not establish any meetings in opposition to the laws of the state. 
 But, with us in England, the king's consent is absolutely ne- 
 cessary to the erection of any corporation, either impliedly or 
 expressly given. The king's implied consent is to be found in 
 corporations which exist by force of the common law, to which 
 our former kings are supposed to have given their concurrence; 
 common law being nothing else but custom, arising from the 
 
 are otherwise termed municipal corporations. Private corporations include 
 others of ■& civil character. Though a corporation be created by public 
 authority, and contribute largely to public advantage, yet it is private, unless 
 empowered to administer civil or municipal authority. Thus a bank created 
 by government for its own uses, but the stock of which is owned by private 
 persons, is a private corporation. So are railroads, insurance companies, 
 manufacturing associations, etc. This distinction is of much consequence 
 in the United States, since a public corporation, being regarded as a mere 
 instrument of government, and a depositary of political power conferred by 
 the legislature, can be established or dissolved, invested with new powers or 
 deprived of those which it previously possessed, at the will of the legisla- 
 ture. But an act creating a private corporation, on the other hand, is in the 
 nature of a contract; and under that provision in the U. S. Constitution 
 which prohibits the States from passing any law impairing the obligation of 
 contracts, cannot be abrogated, or essentially altered or impaired, by the 
 annexation of any new terms or conditions. To avoid the effect of this 
 rule, it is sometimes provided by State Constitutions that charters of private 
 corporations shall be subject to modification or repeal, or a clause to this 
 effect is inserted in the charter itself. There are also what are knovin as 
 quasi-corporations, which are bodies possessing some of the ordinary pow- 
 ers of corporations, but not all ; as, e. g., counties, school districts, overseers 
 of the poor, etc. In New York, and a number of the States, towns are 
 quan corporations. Such corporations are only liable for neglect or viola' 
 tion of duty, so far as a remedy is given against them by statute. 
 
OF CORPORATIONS. 191 
 
 universal agreement of the whole community. Of this sort are 
 the king himself, all bishops, parsons, vicars, churchwardens, and 
 some others ; who by common law have ever been held, as far as 
 our books can show us, to have been corporations, virtute officii: 
 and this incorporation is so inseparably annexed to their offices, 
 that we cannot frame a complete legal idea of any of these per- 
 sons, but we must also have an idea of a corporation, capable to 
 transmit *his rights to his successor at the same time. [*473 
 Another method of implication, whereby the king's consent is 
 presumed, is as to all corporations by prescription, such as the city 
 of London, and many others which have existed as corporations, 
 time whereof the memory of man runneth not to the contrary ; 
 and therefore are looked upon in law to be well created. For 
 though the members thereof can show no legal charter of incor- 
 poration, yet in cases of such high antiquity the law presumes 
 there once was one ; and that by the variety of accidents which 
 a length of time may produce, the charter is lost or destroyed. 
 The methods by which the king's consent is expressly given are 
 either by act of parliament or charter. By act of parliament, of 
 which the royal assent is a necessary ingredient, corporations 
 may undoubtedly be created : but it is observable, that, till of late 
 years, most of these statutes which are usually cited as having 
 created corporations do either confirm such as have been before 
 created by the king, as in case of the College of Physicians, 
 erected by charter 10, Henry VIII. which charter was afterwards 
 confirmed in parliament ; or they permit the king to erect a cor- 
 poration infuturo with such and such powers, as is the case of 
 the Bank of England, and the society of the British Fishery. 
 So that the immediate creative act was usually performed by the 
 king alone, in virtue of his royal prerogative. 
 
 All the other methods, therefore, whereby corporations exist, 
 by common law, by prescription, and by act of parliament, are for 
 the most part reducible to this of the king's letters patent, or 
 charter of incorporation. The king's creation may be performed 
 by the words " creamus, erigimus,fundamus, incorporamus," or the 
 like. Nay, it is held, that if the king grants to a set of men to have 
 gildam mercatoriam, a *mercantile meeting or assembly, [*474 
 this is alone sufficient to incorporate and establish them for ever. 
 
 The parliament, we observed, by its absolute and transcend- 
 ent authority, may peiiorm this, or any other act whatsoever •. 
 
192 OF CORPORATIOJYS. 
 
 and actually did perform it to a great extent, by statute 39 Eliz, 
 c. 5, which incorporated all hospitals and houses of correction 
 founded by charitable persons, without farther trouble : and the 
 same has been done in other cases of charitable foundations. 
 But otherwise it has not formerly been usual thus to intrench 
 upon the prerogative of the crown, and the king may prevent it 
 when he pleases. And, in the particular instance before mention- 
 ed, it was done, as Sir Edward Coke observes, to avoid the charges 
 of incorporation and licenses of mortmain in small benefactions ; 
 which in his days were grown so great, that they discouraged 
 many men from undertaking these pious and charitable works. 
 
 The king, it is said, may grant to a subject the power of 
 erecting corporations, though the contrary was formerly held; 
 that is, he may permit the subject to name the person and powers 
 of the corporation at his pleasure ; but it is really the king that 
 erects, and the subject is but the instrument : for though none 
 but the king can make a corporation, yet qui facit per alium, facit 
 per se. In this manner the chancellor of the University of Ox- 
 ford has power by charter to erect corporations ; and has actually 
 often exerted it, in the erection of several matriculated compan- 
 ies, now subsisting, of tradesmen subservient to the students. * 
 
 * Corporations may exist in the United States by prescription, though 
 this is seldom the case. \Robie v. Sedgwick, 35 Barb. 319.) The validity of 
 a corporation is sometimes based upon this ground, when the regular mode 
 of incorporation by legislative act is found to have been technically de- 
 fective. The usual period of prescription is twenty years. (C/^zV/^»rf«« v. 
 Chittenden, I American Law Register, 538.) But corporations are, with but 
 few exceptions, created in this country by legislative act. This may be 
 either a special act, granting a charter to a particular association of indi- 
 viduals, endowing them with corporate powers for a particular purpose, or a 
 general law, by which a general mode is pointed out, in which individuals 
 may associate themselves together and obtain authority to act as a corpora- 
 tion, without special legislation for their particular benefit. Thus, if the 
 -v-gislature should enact that any body of persons, not less than a certain 
 number, might form a banking association by signing articles of association 
 filing a certificate of intent with a particular public oflScer, electing officers, 
 etc., this would be a " general law ;" and these are the main formalities 
 usually prescribed in such cases. In some States, the evils of special 
 legislation have been so seriously felt, that it has been provided in the State 
 Constitutions, that all private corporations shall be formed under genera- 
 laws wherever practicable. Thus, in New York, it is declared that private 
 corporations shall not be created by special act, except in cases where, ir 
 the judgment of the legislature, the objects of the coiporation cannot be 
 attained by general laws. Const. Art. 8, § i.) The power to create a to' 
 
OF CORPORA TIONS. 193 
 
 When a corporation is erected, a name must be given to it ; 
 and by that name alone it must sue, and be sued, and do all 
 •legal acts ; though a very minute variation therein is not [*475 
 material. Such name is the very being of its constitution ; and, 
 though it is the will of the king that erects the corporation, yet 
 the name is the knot of its combination, without which it could 
 not perform its corporate functions. The name of incorporation, 
 says Sir Edward Coke, is as a proper name, or name of baptism ; 
 and therefore when a private founder gives his college or hospital 
 a name, he does it only as a godfather, and by that same name 
 the king baptizes the incorporation. 
 
 II. After a corporation is so formed and named, it acquires 
 many powers, rights, capacities, and incapacities, which we are 
 next to consider. Some of these are necessarily and inseparably 
 incident to every corporation ; which incidents, as soon as a cor- 
 poration is duly erected, are tacitly annexed, of course. As, i. 
 To have perpetual succession. This is the very end of its incor- 
 poration ; for there cannot be a succession forever without an 
 incorporation; and therefore all aggregate corporations have a 
 power necessarily implied of electing members in the room of 
 such as go off.° 2. To sue or be sued, implead or be impleaded, 
 
 poration, is also sometimes delegated to some particular association or 
 body of men. In New York, for example, the Regents of the University 
 may, in certain cases, incorporate colleges and academies. 
 
 It is essential to the formation of a corporation that its acceptance of 
 the powers and privileges conferred should be signified. A body of men 
 cannot be~forced to become a corporation without their consent. Such con- 
 sent may be indicated either directly or indirectly. Thus, a regular exer- 
 cise of corporate powers, technically called "user," would be sufficient. 
 {Bangor, b'c, R. R. v. Smith, 47 Me. 34.) 
 
 There are a number of corporations still existing in this country, which 
 were created by charter from the English Crown during the Colonial period. 
 These charters are held to be as inviolable by the acts of the State legisla- 
 tures as charters granted after the Union was formed and the several State 
 organizations erected in their present form. {Dartmouth College v. Wood- 
 ward, 4 Wheaton, 518.) 
 
 ' But a distinction must be taken, in regard to admission to membership, 
 between stock corporations and those not having a capital stock divided 
 into shares. Thus, in railroad, insurance, and manufacturing companies, 
 and others of the same character, where there is a capital stock applied to 
 purposes of profit, membership is constituted by a transfer of shares with, 
 out any election on the part of the corporation itself. {Overseers v. Sears, 
 22 Pick. 122.) In other corporations, as, e. g., colleges, library associations, 
 etc., membership depends upon an actual election. The number' of mem- 
 
 13 
 
194 OF CORPORATIONS. 
 
 grant or receive, by its corporate name, and do all other acts as 
 natural persons may." 3. To purchase lands, and hold them, for 
 
 bers may be limited by statute or the terms of the charter ; and the time and 
 manner of election are frequently prescribed in the same way, or deter- 
 mined by the by-laws of the corporation. The corporation at large may, if 
 the charter does not forbid, delegate the power of electing members to a 
 select body. When the powers of the corporation are exercised by a defi- 
 nite number of persons, as the directors or trustees, it is the general rule, 
 unless specially provided otherwise, that a majority of this number is neces- 
 sary to constitute a quorum, but that a majority of those assembled on any 
 occasion, if a quorum be present, may do binding corporate acts, of which 
 the election of members would be one. In like manner, corporations have 
 power to elect officers, and to remove both officers ana aieaabers for good 
 cause. The removal of a member is termed technically, " disfranchise- 
 ment," and of an officer, " amotion." The causes of disfranchisement are 
 said to be three in number : f i ) Violation of duty to the society, as a member 
 of the corporation; (2) Offences as a citizen against the laws of the coun- 
 try; (3) Breach of duty, in respect alike to the corporation and the laws. 
 (See 32 N.Y. 194.) But in joint-stock or moneyed corporations, a stock- 
 holder cannot be disfranchised, since his membership depends only on the 
 ownership of shares. 
 
 8 This does not mean that a corporation may do all acts which natural 
 persons may perform, but only such as are authorized by its charter or by 
 statutory provisions, either expressly or by necessary implication. Corpor- 
 ations are formed for particular purposes, and cannot exercise other powers 
 than those which are conferred by legislative authority. An insurance com- 
 pany, for instance, cannot act as a banking association. The general func- 
 tions of a corporate body must be limited and determined by the nature and 
 object of its institution. But whatever authority is necessary to carry into 
 effect the powers specially granted is deemed to be conferred by implication. 
 Thus, a corporation formed for purposes of trade may borrow money, give 
 promissory notes in the course of its legitimate business, etc., unless there 
 is some special restriction prohibiting such acts. (Brookman v. Metcalf, 33 
 N. Y. 591 ; People v. Insurance Co., ij John. 358.) Acts outside of the le- 
 gitimate scope of a corporation's powers are said to be " ultra vires." It is 
 now the generally received doctrine that such unauthorized acts and contracts 
 are void {Atfy Gen. v. G. E. R. Co., 5 App. Cas. 473 ; Or. R. Co. v. Or. R. 
 Co., 130 U. S. I ; Thomas v. R. Co., loi U. S. 71), though there are some 
 important modifications of this rule. Thus, the plea of ultra vires will not 
 protect a corporation from liability for the torts of its agents within the scope 
 of their general powers. (Nat. Bk. v. Graham, 100 U. S. 699; Booth v. 
 Farmers'' Bk., 50 N. Y. 396.) So when a contract ultra vires has been fully 
 executed by one of the parties thereto, it may be held enforceable against the 
 other party. For, in general, the plea of ultra vires will not prevail when it 
 would defeat the ends of justice or work a legal wrong. (^Railroad Co. v. 
 McCarthy, 96 U. S. 258 ; Rider Raft Co. v. Roach, 97 N. Y. 378.) For any 
 abuse of power, or the exercise of unauthorized functions, the charter of a cor- 
 poration may be withdrawn by a proceeding instituted in behalf of the State. 
 
OF CORPORATIONS. 195 
 
 the benefit of themselves and" their successors ; which two are 
 consequential to the former. 4. To have a common seal. For 
 a corporation, being an invisible body, cannot manifest its inten- 
 tions by any personal act or oral discourse : it therefore acts and 
 speaks only by its common seal. For, though the particular 
 members may express their private consent to any acts, bywords, 
 or signing their names, yet this does not bind the corporation : 
 it is the fixing of the seal, and that only, which unites the several 
 assents of the individuals who compose the community, and 
 makes one joint assent of the whole.' 5. To make by-laws or pri- 
 vate statutes for the better *government of the corpora- [*476 
 tion ; which are binding upon themselves, unless contrary to the 
 laws of the land, and then they are void.* This is also included 
 by law in the very act of incorporation : for as natural reason is 
 given to the natural body for the governing it, so by-laws or stat- 
 utes are a sort of political reason to govern the body politic. 
 And this right of making by-laws for their own government, not 
 contrary to the law of the land, was allowed by the law of the twelve 
 tables at Rome. But no trading company is with us allowed to 
 make by-laws which may affect the king's prerogative, or the com- 
 mon profit of the people, under penalty of 40/. unless they be ap- 
 proved by the chancellor, treasurer, and chief justices, or the 
 judges of assize in their circuits ; and, even though they be so 
 approved, still, if contrary to law, they are void. These five 
 powers are inseparably incident to every corporation, at least to 
 every corporation aggregate; for two of them, though they may be 
 practised, yet are very unnecessary to a corporation sole, viz., to 
 
 ' The old common-law rule, that corporations could not make contracts ex- 
 cept under the corporate seal, is now discarded. At present, corporations 
 are placed in this respect on much the same footing as natural persons, and 
 are obliged to use a seal where an individual would be required to do so, as, 
 e. g., in a deed of lands, but not in other cases. Agents may be appointed 
 without an instrument under seal ; and corporations, like individuals, will be 
 bound by the acts of lawfully authorized agents acting within the scope of 
 their authority. So the unauthorized transaction."! of an agent may be sub- 
 sequently ratified. (Fleckner v. United States, 8 Wheaton, 357 ; Howe v. 
 KeeUr, 27 Conn. 538.) 
 
 ' By-laws must not be in conflict with the charter of the company, nor 
 with the provisions of any statute, and must be reasonable. Otherwise they 
 are void. {Cartan v. Benevolent Society, 3 Daly, 20 ; Kent v. Quicksilver 
 Co., 78 N. Y. 159.) The by-laws of municipal corporations are usually termed 
 ordinances. Charters of private corporations usually vest the power to make 
 by-laws in a select body ; as, for instance, the directors or trustees. 
 
196 OF CORPORATIONS. 
 
 have a corporate seal to testify his sole assent, and to make stat 
 utts for the regulation of his own conduct. 
 
 There are also certain privileges and disabilities that attend 
 an aggregate corporation, and are not applicable to such as are 
 sole ; the reason of them ceasing, and of course the law. It 
 must always appear by attorney, for it cannot appear in person, 
 being, as Sir Edward Coke says, invisible, and existing only in 
 intendment and consideration of law. It can neither maintain, 
 or be made defendant to, an action of battery or such like per- 
 sonal injuries ; for a corporation can neither beat, nor be 
 beaten, in its body politic' A corporation cannot commit 
 treason, or felony, or other crime, in its corporate capacity: 
 though its members may, in theit distinct individual capacities." 
 *477] Neither is it capable of suffering a *traitor's or felon's 
 punishment, for it is not liable to corporeal penalties, nor to at- 
 tainder, forfeiture, or corruption of blood. It cannot be executor 
 or administrator, or perform any personal duties ; for it cannot 
 take an oath for the due execution of the office. It cannot be 
 seized of lands to the use of another ; for such kind of confidence 
 is foreign to the end of its institution." Neither can it be com- 
 mitted to prison ; for, its existence being ideal, no man can ap- 
 
 ' Corporations are now held responsible for torts cdmmitted by their 
 servants or agents, in the same way as a natural person would be. Their 
 liability is to be determined by the inquiry whether the agent's act is within 
 the scope of his employment. Corporations, in their province of action 
 through agents, may commit nearly every variety of tort. Thus they are 
 liable for assault and battery, for malicious prosecution, for libel, for fraud 
 and deceit, for negligence, etc. Actions against them on the latter ground are 
 very frequent. {Denver, b'c., R. Co. v. Harris, 122 U. S. 597 ; Fishkill Sav. 
 Bk. v. Nat. Bk., 80 N. Y. 162 ; Reed v. Home Sav. Bk., 130 Mass. 443.) 
 
 ^^ There are some few cases, however, in which a corporation may be 
 made criminally responsible. Thus, it may be indicted for the creation of 
 a nuisance. Railroad and turnpike companies are indictable for permitting 
 highways and bridges to be out of repair, so as to interfere with travel or 
 render it dangerous. These are wrongful acts resulting from a violation of 
 corporate duties. {People \. Albany, 11 Wend. 539; Comm. v. Vermont, 
 Is'c., R. Co., 4 Gray, 22.) 
 
 11 Corporations may now be seized of land in trust for another, the only 
 limitation being that the purpose for which the land is held must not be 
 foreign to the objects of their institution. Courts of equity will enforce the 
 execution of any lawful trust vested in a corporation. Many corporations hold 
 property in trust for charitable purposes. Personal property may also be 
 held in the same way. Loan and trust companies are not infrequently 
 incorporated at the present day, which are formed for this express purpose. 
 
OF CORPORATIONS. 
 
 197 
 
 prehend or arrest it. And therefore, also, it cannot be outlawed ; 
 for outlawry always supposes a precedent right of arresting, which 
 has been defeated by the parties absconding, and that also a cor- 
 poration cannot do : for which reasons the proceedings to com- 
 pel a corporation to appear to any suit by attorney are always by 
 distress on their lands and goods. Neither can a corporation be 
 excommunicated : for it has no soul, as is gravely observed by 
 Sir Edward Coke ; and therefore also it is not liable to be sum- 
 moned into the ecclesiastical courts upon any account ; for those 
 courts act only pro salute animce, and their sentences can only be 
 enforced by spiritual censures : a consideration which, carried to 
 its full extent, would *^lone demonstrate the impropriety of these 
 courts interfering in any temporal rights whatsoever. 
 
 There are also other incidents and powers which belong to 
 some sort of corporations, and not to others. An aggregate cor. 
 poration may take goods and chattels for the benefit of them- 
 selves and their successors, but a sole corporation cannot : for 
 such movable property is liable to be lost or embezzled, and 
 would raise a multitude of disputes between the successor and 
 executor, which the law is careful to avoid. In ecclesiastical and 
 jleemosynary foundations, the king or the founder may give them 
 rules, laws, statutes, and ordinances, which they are bound to 
 observe : but corporations merely *lay, constituted for civil [*478 
 purposes, are subject to no particular statutes ; but to the com 
 mon law, and to their own by-laws, not contrary to the laws of 
 the realm. Aggregate corporations, also, that have by their con- 
 stitutions a head, as a dean, warden, master, or the like, cannot 
 do any acts during the vacancy of the headship, except only ap- 
 pointing another : neither are they then capable of receiving a 
 grant : for such corporation is incomplete without a head. But 
 there may be a corporation aggregate, constituted without a head : 
 as the collegiate church of Southwell, in Nottinghamshire, which 
 consists only of prebendaries ; and the governors of the Charter- 
 house, London, who have no president or supA-ior, but are all of 
 equal authority. In aggregate corporations, also, the act of the 
 major part is esteemed the act of the whole. By the civil law 
 this major part must have consisted of two-thirds of the whole, 
 else no act could be performed : which perfiaps may be one reason 
 why they required three at least to make a corporation. But 
 with us any majority is suffici.-nt to determire the act of the 
 
198 OF CORPORATIONS. 
 
 whole body.*^ And whereas, notwithstanding the law stood thus, 
 some founders of corporations had made statutes in derogation 
 of the common law, making very frequently the unanimous 
 assent of the society to be necessary to any corporate act, which 
 King Henry VIII. found to be a great obstruction to his pro- 
 jected scheme of obtaining a surrender of the lands of ecclesi. 
 astical corporations, it was therefore enacted by statute 33 Hen. 
 VIII. c, 27, that all private statutes shall be utterly void, whereby 
 any grant or election, made by the head, with the concurrence of 
 the major part of the body, is liable to be obstructed by any one 
 or more, being the minority : but this statute extends not to any 
 negative or necessary voice, given by the founder to the head of 
 any such society. We before observed, that it was incident to 
 every corporation to have a capacity to purchase lands for them- 
 *479] selves and *successors : and this is regularly true at the 
 common law. But they are excepted out of the statute of wills : 
 so that no devise of lands to a corporation by will is good, except 
 for charitable uses, by statute 43 Eliz. c. 4 ; which exception is 
 again greatly narrowed by the statute 9 Geo. II. c. 36. And also 
 by a great variety of statutes, their privilege even of purchasing 
 from any living grantor is much abridged : so that now a corpo- 
 ration, either ecclesiastical or lay, must have a license from the 
 king to purchase, before they can exert that capacity which is 
 vested in them by the common law : nor is even this in all cases 
 sufficient. These statutes are generally called the statutes of 
 mortmain ; all purchases made by corporate bodies being said 
 to be purchases in mortmain, in mortua tnanu : for the reason of 
 which appellation Sir Edward Coke offers many conjectures ; but 
 there is one which seems more probable than any that he has given 
 us ; viz., that these purchases being usually made by ecclesias- 
 tical bodies, the members of which (being professed) were reck- 
 
 ^ When corporate acts are to be done by a definite number of persons, 
 as for instance, the trustees or directors, a majority of this whole number 
 is necessary to constitute a quorum ; and a majority present at an authorized 
 meeting may perform valid corporate acts. But if the power to act is vested 
 in an indefinite number, a majority of those present on any occasion may 
 a.7t, whether a majority of the whole body or not. {Ex parte Willcocks, 7 
 Cow. 402.) But these general rules may be varied by statutory or charter pro" 
 visions. In stock corporations, the votes of each stockholder depend upon 
 the number of shares he owns ; so that if one person owned a majority fA 
 the shares, he could control the acts of the corporation. 
 
OF CORPORATIONS. 199 
 
 Oned dead persons in law, land therefore holden by .hem might 
 with great propriety be said to be. held in mortua manu}^ 
 
 I shall defer the more particular exposition of these statutes 
 of mortmain till the next book of these Commentaries, when we 
 shall consider the nature and tenures of estates ; and also the 
 exposition of those disabling statutes of Queen Elizabeth, which 
 restrain spiritual and • eleemosynary corporations from aliening 
 such lands as they are at present in legal possession of : only 
 mentioning them in this place, for the sake of regularity, as statut- 
 able incapacities incident and relative to corporations. 
 
 The general duties of all bodies politic, considered in their 
 corporate capacity, may, like those of natural persons, be *re- 
 duced to this single one, that of acting up to the end or [*480 
 design, whatever it be, for which they were created by their 
 founder. 
 
 III. I proceed therefore next to inquire, how these corpo- 
 rations may be visited. For corporations being composed of in- 
 dividuals, subject to human frailties, are liable, as well as private 
 persons, to deviate from the end of their institution. And for 
 that reason the law has provided proper persons to visit, inquire 
 into, and correct all irregularities that arise in such corporations, 
 either sole or aggregate, and whether ecclesiastical, civil, or 
 
 " There are no statutes of mortmain in this country, except in Penn- 
 sylvania ; and corporations may acquire and hold land, as well as personal 
 property, so far as may be consistent with the purposes of their institution, 
 unless prohibited or restricted by statute or charter. The power to hold lands 
 is generally conferred by the charter in special terms, and the value of 
 property which may be thus acquired, limited to a fixed amount. Such a 
 limitation will apply to the value of the land at the time of acquisition, and 
 though an increase in its value may occur subsequently, so that the limit is 
 exceeded, the property may still be retained. (/« re McGraiv, 1 1 1 N. Y. 66; see 
 4 Sandf. Ch. 633.) A corporation authorized to hold land may take a convey- 
 ance in fee simple, though by the terms of the charter the corporation is to con- 
 tinue but a limited time. {People v. O'Brien, iii N. Y. i ; see 12 N. Y. 121.) 
 Religious corporations are sometimes placed under restrictions in regard to the 
 power to malce a sale of their lands, and required to obtain permission from a 
 court of chancery. The power to take lands by devise is not usually vested in 
 corporations, except for charitable purposes. And the amount of property 
 which a testator may thus give to charitable organizations is sometimes limited 
 by special provisions. Thus, in New York no person having a husband, wife, 
 child,or parent,may devise or bequeath to a charitable corporation more than 
 one-half of his estate after the payment of his debts. {Laws i860, c. 360.) 
 The English laws of mortmain were consolidated in 1888. (51 & 52 Vict. c. 42.) 
 
200 OF CORPORATIONS. 
 
 eleemosynary. With regard to all ecclesiastical corporations, the 
 ordinary is their visitor, so constituted by the canon law, and 
 from thence derived to us. The pope formerly, and now the king, 
 as supreme ordinary, is the visitor of the archbishop or me- 
 tropolitan ; the metropolitan has the charge and coercion of all his 
 suffragan bishops ; and the bishops in their several diocesos are in 
 ecclesiastical matters the visitors of all deans and chapters, of all 
 parsons and vicars, and of all other spiritual corporations. With 
 respect to all lay corporations, the founder, his heirs, or assignSf 
 are the visitors, whether the foundation be civil or eleemosy- 
 nary ; for in a lay incorporation the ordinary neither can no;' 
 Dught to visit. 
 
 I know it is generally said, that civil corporations are subject 
 to no visitation, but merely to the common law of the land ; and 
 this shall be presently explained. But first, as I have laid it 
 down as a rule that the founder, his heirs, or assigns, are the vis- 
 itors of all lay corporations, let us inquire what is meant by the 
 founder. The founder of all corporations, in the strictest and 
 original sense, is the king alone, for he only can incorporate a 
 society ; and in civil incorporations, such as mayor or com- 
 monalty, &c., where there are no possessions or endowments 
 given to the body, there is no other founder but the king : but in 
 eleemosynary foundations, such as colleges and hospitals, where 
 there is an endowment of lands, the law distinguishes, and makes 
 *481] two species of *foundation ; the one fundatio incipiens., or 
 the incorporation, in which sense the king is the general founder 
 of all colleges and hospitals ; the o'Ca^r fundatio perficiens, or the 
 dotation of it, in which sense the first gift of the revenues is the 
 foundation, and he who gives them is in law the founder : and 
 it is in this last sense that we generally call a man the founder of 
 a college or hospital. But here the king has his prerogative : for, 
 if the king and a private man join in endowing an eleemosynary 
 foundation, the king alone shall be the founder of it. And in 
 general, the king being the sole founder of all civil corporations, 
 and the endower the perficient founder of all eleemosynary ones, 
 the right of visitation of the former results, according to the rule 
 laid down, to the king ; and of the latter to the patron or endower. 
 
 The king being thus constituted by law visitor of all civil 
 corporafons, the law has also appointed the place wherein he shall 
 exercise this jurisdiction : which is the court of king's bench ; 
 
OF CORPORA TIONS. 201 
 
 where, and where only, all misbehaviors of this kind of corpora- 
 tions are inquired into and redressed, and all their controversiea 
 decided. And this is what I understand to be the meaning of our 
 lawyers when they say that these civil corporations are liable to 
 no visitation : that is, that the law having by immemorial usage 
 appointed them to be visited and inspected by the king, their 
 founder, in his majesty's court of king's bench, according to tha 
 rules of the common law, they ought not to be visited elsewhere, 
 or by any other authority. And this is so strictly true that 
 though the king by his letters patent had subjected the College 
 of physicians to the visitation of four very respectable persons, 
 the lord chancellor, the two chief justices, and the chief baron ; 
 though the college had accepted this charter with all possible 
 marks of acquiescence, and had acted under it for near a century ; 
 yet in 1753, the authority of this provision coming in dispute, on an 
 appeal preferred to these supposed *visitors, they directed [*482 
 the legality of their own appointment to be argued ; and, as this 
 college was merely a civil and not an eleemosynary foundation, 
 they at length determined, upon several days' solemn debate, that 
 they had no jurisdiction as visitors ; and remitted the appellant, 
 if aggrieved, to his regular remedy in his majesty's court of king's 
 bench. 
 
 As to eleemosynary corporations, by the dotation the founder 
 and his heirs are of common right the legal visitors, to see that 
 such property is rightly employed, as might otherwise have de- 
 scended to the visitor himself : but, if the founder has appointed 
 and assigned any other person to be visitor, then his assignee so 
 appointed is invested with all the founder's power, in exclusion 
 of his heir. Eleemosynary corporations are chiefly hospitals, or 
 colleges in the universities. These were all of them considered, 
 by the popish clergy, as of mere ecclesiastical jurisdiction : How- 
 ever, the law of the land judged otherwise ; and, with regard to 
 hospitals, it has long been held, that if the hospital be spiritual, 
 the bishop shall visit ; but if lay, the patron. This right of lay 
 patrons was indeed abridged by statute 2 Hen. V. c. i, which 
 ordained, that the ordinary should visit all hospitals founded by 
 subjects; though the king's right was reserved to visit by his 
 commissioners such as were of royal foundation. But the sul> 
 ject's right was in part restored by statute 14 Eliz. c. 5, which 
 directs the bishop to visit such hospitals only where no visitor is 
 
202 OF CORPORATIONS. 
 
 appointel by the founders thereof: and all the hospitals founded 
 by virtue of the statute 39 Eliz. c. 5, are to be visited by such 
 persons as shall be nominated by the respective founders. But 
 still, if the founder appoints nobody, the bishop of the diocese 
 must visit. 
 
 Colleges in the universities (whatever the common law may 
 now, or might formerly, judge) were certainly considered by the 
 popish clergy, under whose direction they were, as ecclesiastical, 
 or at least as clerical, corporations ; and therefore the right of 
 *483] visitation, was claimed by the ordinary of the *diocese. 
 This is evident, because in many of our most ancient colleges, 
 where the founder had a mind to subject them to a visitor of his 
 own nomination, he obtained for that purpose a papal bull to 
 exempt them from the jurisdiction of the ordinary ; several of 
 which are still preserved in the archives of the respective soci- 
 eties. And in some of our colleges, where no special visitor is 
 appointed, the bishop of that diocese, in which Oxford was for- 
 merly comprised, has immemorially exercised visitorial author- 
 ity ; which can be ascribed to nothing else but his supposed title 
 as ordinary to visit this, among other ecclesiastical foundations. 
 And it is not impossible that the number of colleges in Cam- 
 bridge, which are visited by the Bishop of Ely, may in part be 
 derived from the same original. 
 
 But, whatever might be formerly the opinion of the clergy, 
 it is now held as established common law, that colleges are lay 
 corporations, though sometimes totally composed of ecclesiasti- 
 cal persons ; and that the right of visitation does not arise from 
 any principles of the canon law, but of necessity was created by 
 the common law. And yet the power and jurisdiction of visitors 
 in colleges was left so much in the dark at common law, that 
 the whole doctrine was very unsettled till the famous case of 
 Philips and Bury. {a) In this the main question was, whether the 
 sentence of the Bishop of Exeter, who, as visitor, had deprived 
 Doctor Bury, the rector of Exeter College, could be examined 
 and redressed by the court of king's bench. And the three 
 puisne judges were of opinion that it might be reviewed, for 
 that the visitor's jurisdiction could nxjt exclude the common law ; 
 and accordingly judgment was given in that court. But the 
 Lord Chief Justi :e Holt was of a contrary opinion; aid held 
 (fl) r.ord Raymond, 5 ; Salkeld's R. 403. 
 
OF CORPORATIONS. 20j 
 
 that, by the ojmmon law the office of visitor is tc judge accord- 
 ing to the statutes of the college, and to expel ani deprive upon 
 just occasions, and to hear all appeals of course ; and that from 
 him, and him only, the party grieved ought to have redress ; the 
 founder having reposed in him so entire a confidence, that he 
 *will administer justice impartially, that his determina- [*484 
 tions are final, and examinable in no other court whatsoever. 
 And upon this, a writ of error being brought into the House of 
 Lords, they concurred in Sir John Holt's opinion, and reversed 
 the judgment of the court of king's bench. To which leading 
 case all subsequent determinations have been conformable. But, 
 where the visitor is uhder a temporary disability, there the court 
 of king's bench will interpose to prevent a defect of justice 
 Also it is said, that if a founder of an eleemosynary foundation 
 appoints a visitor, and limits his jurisdiction by rules and statutes, 
 if the visitor in his sentence exceeds those rules, an action lies 
 against him ; but it is otherwise where he mistakes in a thing 
 within his power." 
 
 IV. We come now, in the last place, to consider how corpo- 
 rations may be dissolved. Any particular member may be dis- 
 franchised, or lose his place in the corporation, by acting con- 
 trary to the laws of the society, or the laws of the land ; or he 
 may resign it by his own voluntary act. But the body politic 
 
 >* The power of " visitation," strictly speaking, appertains only to ecclesi- 
 Astical and eleemosynary corporations. In the United States, where there are 
 no ecclesiastical corporations, it would be confined to the latter class, as 
 colleges, schools, and hospitals, and is almost invariably lodged m the trus- 
 tees of such institutions. Donors or founders in this country rarely possess 
 the authority of visitors, except as they belong to the board of trustees. The 
 authority which the trustees possess in such cases is to manage the funds cf 
 the institution, direct its government, administration, and regular discipline, 
 elect and remove officers, provide by-laws, etc. ; and if they exercise a prudent 
 discretion in the performance of these duties, they are amenable to no super- 
 vision. But courts of equity may exercise a general jurisdiction over their 
 acts and proceedings, to prevent abuses of trust, or a fraudulent perversion 
 of charitable funds. But the term " visitation," as applied to civil corpora- 
 tions, is not strictly appropriate, though such a use of it is common. From 
 denoting supervision of a particular kind, it is extended to supervision of all 
 kinds. Civil corporations, whether public or private, are subject to the general 
 law of the land, and may be made accountable for an abuse or violation of 
 authority, a neglect or disregard of duty, etc., by appropriate legal proceed- 
 ings. In extreme cases of perversion ^ power, the corporation tray be dis 
 solved. 
 
20^ OF CORPORATIONS. 
 
 may also itself be dissolved in several ways, which dissolution ia 
 the civil death of the corporation ; and in this case their lands 
 and tenements shall revert to the person, or his heirs, who grant- 
 ed them to the corporation ; for the law doth annex a condition 
 to every such grant, that, if the corporation be dissolved, the 
 grantor shall have tne lands again, because the cause of the 
 grant faileth. The grant is, indeed, only during the life of the 
 corporation ; which may endure forever ; but when that life is 
 determined by the dissolution of the body politic, the grantor 
 takes it back by reversion, as in the case of every other grant 
 for life. The debts of a corporation, either to or from it, are 
 totally extinguished by its dissolution ; so that the members 
 thereof cannot recover, or be charged with them, in their natural 
 capacities : agreeable to that maxim of the civil law, " si quid 
 universitati debetur, singulis non debetur ; nee, quod debet univer- 
 sitas, singuli detent." ^^ 
 
 *485] *A corporation may be dissolved, i. By Act of parlia- 
 ment, which is boundless in its operations." 2. By the natural 
 
 '" These rules of the common law, in regard to the disposition of the real 
 property of a corporation upon its dissolution, and the extinguishment of its 
 debts, have been generally abolished in this country, at least as far as stock 
 and monied corporations are concerned. The debts still remain valid, and 
 the property is applied as a trust fund to their liquidation. Should any sur- 
 plus remain, it is divided among the corporators. In New York, there is a 
 statute to this effect, and the directors or trustees of the corporation are 
 declared to be trustees to collect the assets, pay debts and distribute the resi- 
 due among the stockholders. (^People v. O'Brien, iii N. Y. i ; see 105 U. S. 
 13.) Similar statutes are found in other States. So if corporations become 
 banki-upt, their assets are applied to the payment of their indebtedness, as in 
 individual bankruptcy. 
 
 1^ As has already been stated, the legislature of a State can pass no law 
 repealing or so far altering or modifying the charter of a private corporaticfn, as 
 to violate the constitutional prohibition against impairing the obligation of con- 
 tracts. This doctrine was established by the famous Dartmouth College Case 
 (4 Wheaton, 518). But if there is a clause in a State Constitution permitting 
 such repeal or modification, laws having this object may be passed in reference 
 to all corporations created after the adoption of such a Constitutional provision. 
 This is because the parties are presumed to understand the state of the law at 
 the time when the charter is granted, and to enter into the contract with ref- 
 erence to existing legislation. So if there be a reservation of the right to 
 repeal or amend in the charter itself, laws for this purpose will be authorized. 
 {Greenwood v. Freight Co., 105 U. S. 13.) But public or municipal corpora- 
 tions are always subject to legislative'^control. (Mt. Pleasant v. Beckwith, 
 100 U. S. 514.) 
 
OF CORPORA TIONS. 205 
 
 death of all its members, in case of an aggregate corporation 
 3. By surrender of its franchises into the hands of the Icings 
 which is a kind of suicide. 4. By forfeiture of its charter, 
 through negligence or abuse of its franchises ; in which case the 
 law judges that the body politic has broken the condition upon 
 which it was incorporated, and thereupon the incorporation is 
 void. And the regular course is to bring an information in 
 nature of a writ of quo warranto, to inquire by what warrant 
 the members now exercise, their corporate power, having for- 
 feited it by such and such proceedings. The exertion of this 
 act of law, for the purposes of the state, in the reigns of King 
 Charles and King James the Second, particularly by seizing the 
 charter of the city of London, gave great and just offence; 
 though perhaps, in strictness of law, the proceedings in most of 
 them were sufficiently regular ; but the judgment against that of 
 London was reversed by Act of parliament after the Revolution ; 
 and by the same statute it is enacted, that the franchises of the 
 city of London shall never more be forfeited for any cause what- 
 soever. And because, by the common law, corporations were 
 dissolved, in case the mayor or head officer was not duly elected 
 on the day appointed in the charter, or established by prescrip- 
 tion, it is now provided, that for the future no corporation shall 
 be dissolved upon that account ; and ample directions are given 
 for appointing a new officer, in case there be no election, or a 
 void one, made upon the prescriptive or charter day." 
 
 " These several modes of dissolution still exist in this country. And it 
 is a general rule in regard to the surrender of the corporate franchises, that 
 the surr,-nder must be accepted by the government. (^New York Iron Wo> ks 
 V. SmiiA, 4 Duer 362.) Non-user or misuser of the authority granted to the 
 corporation, or an unlawful usurpation of power, will not of itself work a for- 
 feiture of the charter, but the default must be judicially ascertained and de- 
 clared. (See Bradt v. Benedict, 17 N.Y. 93). Actions for the purpose of 
 annulling or vacating the charter, and putting an end to the existence of the 
 corporation, are ordinarily brought by the attorney-general representing the 
 State. But if dissolution be not effected by the appropriate legal proceeding, 
 the rightful existence of the corporation cannot be questioned in any collateral 
 proceeding. {In re N. Y. Elev. R. Co., 70 N. Y. 32.) The corporation 
 will continue to exist, until the State talces measures to dissolve it. There 
 are special statutory provisions in the several States, regulating the institu- 
 tion of such proceedings. 
 
 (On the subject of corporations may be consulted such works as Angell 
 and Ames on Corporations, Morawetz on Corporations, Kenfs Commentaries 
 (lecture 33), and Dillon on Municipal Corporations.) 
 
BOOK THE SECOND. 
 OF THE RIGHTS OF THINGS 
 
 CHAPTER I. 
 [bL. COMM. — ^BOOK II. CH. I.] 
 
 Of Property, in General. 
 
 The foimer book of these Commentaries having treated at 
 large of the jura personarum, or such rights and duties as are 
 annexed to ^t persons of men, the objects of our inquiry in this 
 second book will be the/wra: rerum, or those rights which a man 
 may acquire in and to such external things as are unconnected 
 with his person. These are what the writers in natural law 
 style the rights of dominion, or property, concerning the nature 
 and original of which I shall first premise a few observations, be- 
 fore I proceed to distribute and consider its several objects. 
 
 *There is nothing which so generally strikes the imagi- ['*2 
 nation, and engages the affections of mankind, as the right of 
 property ; or that sole and despotic dominion which one man 
 claims and exercises over the external things of the world, in 
 total exclusion of the right of any other individual in the uni- 
 verse. And yet there are very few that will give themselves the 
 trouble to consider the original and foundation of this right. 
 Pleased as we are with the possession, we seem afraid to look 
 back to the means by which it was acquired, as if fearful of some 
 defect in our title ; or at best we rest satisfied with the decision 
 of the laws in our favor, without examining the reason or author- 
 ity upon which those laws have been built. We think it enough 
 that our title is derived by the grant of the former proprietor, by 
 descent from our ancestors, or by the last will and testament of 
 the dying owner ; not caring to reflect that (accurately aiid 
 
2o8 OF PROPERTY, IN GENERAL. 
 
 strictly speaking) there is no foundation in nature or in natural 
 law, why a set of words upon parchment should convey the do- 
 minion of land : why the son should have a right to exclude his 
 fellow creatures from a determinate spot of ground, because his 
 father had done so before him : or why the occupier of a par- 
 ticular field or of a jewel, when lying on his death-bed, and no 
 longer able to maintain possession, should be entitled to tell the 
 rest of the world which of them should enjoy it after him. 
 These inquiries, it must be owned, would be useless and even 
 troublesome in common life. . It is well if the m.ass of mankind 
 will obey the laws when made, without scrutinizing too nicely 
 into the reason for making them. But, when law is to be con- 
 sidered not only as a matter of practice, but also as a rational 
 science, it cannot be improper or useless to examine more deeply 
 the rudiments and grounds of these positive constitutions of 
 society. 
 
 In the beginning of the world, we are informed by holy writ, 
 the all-bountiful Creator gave to man " dominion over all the 
 e^rth ; and over the fish of the sea, and over the fowl of the air, 
 *5] and over every living thing that moveth *upon the earth." This 
 is the only true and solid foundation of man's dominion over ex- 
 ternal things, whatever airy metaphysical notions n«ay have been 
 started by fanciful writers upon this subject. The earth, there- 
 fore, and all things therein, are the general property of all man- 
 kind, exclusive of other beings, from the immediate gift of the 
 Creator. And, while the earth continued bare of inhabitants, it 
 is reasonable to suppose that all was in common among them, 
 and that every one took from the public stock to his own use 
 such things as his immediate necessities required. 
 
 These general notions of property were then sufficient to an- 
 swer all the purposes of human life ; and might perhaps still 
 have answered them had it been possible for mankind to have re- 
 mained in a state of primeval simplicity : as may be collected 
 from the manners of many American nations when first discov- 
 ered by the Europeans ; and from the ancient method of living 
 among the first Europeans themselves, if we may credit either 
 the memorials of them preserved in the golden age of the poets, 
 or the uniform accounts given by historians of these times, 
 wherein " erant omnia communia et indivisa omnibus, veluti unum 
 Tunctis patrimonium, essr.t" Not that this communion of goods 
 
OF PROPERTY, IN GENERAL. 209 
 
 seems ever to have been applicable, even in the earliest stages, 
 to aught but the substance of the thing ; nor could it be ex- 
 tended to the use of it. For, by the law of nature and reason, he, 
 who first began to use it, acquired therein a kind of transient 
 property, that lasted so long as he was using it, and no longer : 
 or, to speak with greater precision, the right of possession contin 
 ued for the same time only that the act of possession lasted. Thus 
 the ground was in common, and no part of it was the permanent 
 property of any man in particular ; yet whoever was in the oc- 
 cupation of any determined spot of it, for rest, for shade, or the 
 like, acquired for the time a sort of ownership, from which it 
 would have been unjust, and contrary to the law of nature, to 
 have driven him by force ; but the instant that he *quitted [*4 
 the use or occupation of it, another might seize it, without in- 
 justice. Thus also a vine or other tree might be said to be in 
 common, as all men were equally entitled to its produce ; and 
 yet any private individual might gain the sole property of the 
 fruit, which he had gathered for his own repast. A doctrine 
 well illustrated by Cicero, who compares the world to a great 
 theatre, which is common to the public, and yet the place which 
 any man has taken is for the time his own. 
 
 But when mankind increased in number, craft, and ambition, 
 it became necessary to entertain conceptions of more permanenf 
 dominion ; and to appropriate to individuals not the immediate 
 use only, but the very substance of the thing to be used. Other- 
 wise innumerable tumults must have arisen, and the good order 
 of the world be continually broken and disturbed, while a variety 
 of persons were striving who should get the first occupation of 
 the same thing, or disputing which of them had actually gained 
 it. As human life also grew more and more refined, abundance 
 of conveniences were devised to render it more easy, commodi 
 ous, and agreeable ; as, habitations for shelter and safety, and 
 ra-ment for warmth and decency. But no man would be at the 
 trouble to provide either, so long as he had only an usufructuary 
 property in them, which was to cease the instant that he quitted 
 possession ; if, as soon as he walked out of his tent, or pulled off 
 his garment, the next stranger who came by would have a right 
 to inhabit the one, and to wear the other. In the case of habi- 
 tations in particular, it was natural to observe, that even the 
 brute creation, to whom everything else was in common, main- 
 14 
 
2IO OF PROPERTY, IN GENERAL. 
 
 tained a kind of permanent property in their dwellings, especi- 
 ally for the protection of their young ; that the birds of the air 
 had nests, and the beasts of the field had caverns, the inva- 
 sion of which they esteemed a very flagrant injustice, and would 
 hacrifice their lives to preserve them. Hence a property was 
 ioon established in every man's house and home-stall ; which 
 5*] seem to have been originally mere *temporary huts or 
 movable cabins, suited to the design of Providence for more 
 speedily peopling the earth, and suited to the wandering life of 
 tneir owners, before any extensive property in the soil or ground 
 was established. And there can be no doubt, but that movables 
 of every kind became sooner appropriated than the permanent 
 tiubstantial soil : partly because they were more susceptible of a 
 long occupancy, which might be continued for months together 
 without any sensible interruption, and at length by usage ripen 
 into an established right ; but principally because few of them 
 could be fit for use, till improved and ameliorated by the bodily 
 labor of the occupant, which bodily labor, bestowed upon any 
 subject which before lay in common to all men, is universally al- 
 lowed to give the fairest and most reasonable title to an exclu- 
 sive property therein. 
 
 The article of food was a more immediate call, and therefore 
 a more early consideration. Such as were not contented with 
 the spontaneous product of the earth, sought for a more soHd 
 refreshment in the flesh of beasts, which they obtained by hunt- 
 ing. But the frequent disappointments incident to that method 
 of provision, induced them to gather together such animals as 
 were of a more tame and sequacious nature ; and to establish a 
 permanent property in their flocks and herds in order to sustam 
 themselves in a less precarious manner, partly by the milk of 
 the dams, and partly by the flesh of the young. The support of 
 these their cattle made the article of water also a very important 
 point. And therefore the book of Genesis (the most venerable 
 monument of antiquity, considered merely with a view to histor}') 
 will furnish us with frequent instances of violent contentions 
 concerning wells ; the exclusive property of which appears to 
 have been established in the first digger or occupant, even in 
 such places where the ground and herbage remained yet in com- 
 mon. Thus we find Abraham, who was but a sojourner, assert- 
 ing his right to a well in the country of Abimelech, and exacting 
 
OF PROPERTY, IN GENERAL. 211 
 
 an oath for his security, " because he had digged that well." And 
 Isaac, *about ninety years afterwards, reclaimed that his [*6 
 father's property ; and after much contention with the Philistines, 
 was suffered to enjoy it in peace. 
 
 All this while the soil and pasture of the earth remained still 
 in common as before, and open to every occupant; except per- 
 haps in the neighborhood of towns, where the necessity of a sole 
 and exclusive property in lands (for the sake of agriculture) was 
 earlier felt, and therefore more readily complied with. Otherwise, 
 when the multitude of men and cattle had consumed every con- 
 venience on one spob- of ground, it was deemed a natural right to 
 seize upon and occupy such other lands as would more easily 
 supply their necessities. This practice is still retained among the 
 wild and uncultivated nations that have never been formed into 
 •;ivil states, like the Tartars and others in the East ; where the 
 climate itself, and the boundless extent of their territory, conspire 
 to retain them still in the same savage state of vagrant liberty, 
 which was universal in the earliest ages ; and which, Tacitus in- 
 forms us, contmued among the Germans till the decline of the 
 Roman empire. We have also a striking example of the same 
 kind in the history of Abraham and his nephew Lot. When 
 their joint substance became so great, that pasture and other 
 conveniences grew scarce, the natural consequence was, that a 
 strife arose between their servants ; so that it was no longer 
 practicable to dwell together. This contention Abraham thus 
 endeavored to compose : " Let there be no strife, I pray thee, 
 between thee and me. Is not the whole land before thee ? 
 Separate thyself, I pray thee, from me. If thou wilt take the 
 left hand, then I will go to the right ; or if thou depart to the 
 right hand, then I will go to the left." This plainly implies an 
 acknowledged right, in either, to occupy whatever ground he 
 pleased, that was not pre-occupied by other tribes. " And Lot 
 lifted up his eyes, and beheld all the plain of Jordan, that it was 
 well watered every where, even as the garden of the Lord. Then 
 Lot chose him all the plain of Jordan, and journeyed east ; and 
 Abraham dwelt in the land of Canaan." 
 
 Upon the same principle was founded the right of migra- [*7 
 tion or sending colonies to find out new habitations, when the 
 mother country was overcharged with inhabitants ; which was 
 practised as well by the Phoenicians and Greeks as the Germans. 
 
212 OF PROPERTY, IN GENERAL. 
 
 Scythians, and other northern people. And, so long as it was 
 confined to the stocking and cultivation of desert, uninhabited 
 countries, it kept strictly within the limits of the law of nature 
 But how far the seizing on countries already peopled, and driving 
 out or massacring the innocent and defenseless natives, meiely 
 because they differed from their invaders in language, in religion, 
 in customs, in government, or in color : how far such a conduct 
 was consonant to nature, to reason, or to Christianity, deserved 
 well to be considered by those, who have rendered their names 
 immortal by thus civilizing mankind. 
 
 As the world by degrees grew more populous, it daily became 
 more difficult to find out new spots to inhabit, without encroach- 
 ing upon former occupants : and by constantly occupying the 
 same individual spot, the fruits of the earth were consumed, and its 
 spontaneous produce destroyed, without any provision for future 
 supply or succession. It therefore became necessary to pursue 
 some regular method of providing a constant subsistence ; and 
 this necessity produced, or at least promoted and encouraged, 
 the art of agriculture. And the art of agriculture, by a regular 
 connection and consequence, introduced and established the idea 
 of a more permanent property in the soil than had hitherto been 
 received and adopted. It was clear that the earth would not produce 
 her fruits in sufficient quantities, without the assistance of tillage : 
 but who would be at the pains of tilling it, if another might 
 watch an opportunity to seize upon and enjoy the product of his 
 industry, art, and labor ">. Had not therefore a separate property 
 in lands, as well as movables, been vested in some individuals, 
 the world must have continued a forest, and men have been 
 mere animals of prey ; which, according to some philosophers, is 
 8*] the genuine state of nature. *Whereas now (so graciously 
 has Providence interwoven our duty and our happiness together) 
 the result of this very necessity has been the ennobling of the 
 human species, by giving it opportunities of improving its rationat 
 faculties, as well as of exerting its natural. Necessity begat 
 property : and in order to insure that property, recourse was had 
 to civil society, which brought along with it a long train of in- 
 separable concomitants ; states, government, laws, punishments, 
 and the public exercise of religious duties. Thus connected 
 together, it was found that a part only of society was sufficient 
 to provide, by their manual labor, for the necessary subsistence 
 
OF PROPERTY, IN GENERAL. 213 
 
 of all ; and leisure was given to others to cultivate the human 
 mind, to invent useful arts, and to lay the foundations of science. 
 
 The only question remaining is, how this property became 
 actually vested : or what it is that gave a man an exclusive right 
 to retain in a permanent manner that specific land, which before 
 belonged generally to everybody, but particularly to nobody. 
 And, as we before observed that occupancy gave the right to 
 the temporary use of the soil, so it is agreed upon all hands, 
 that occupancy gave also the original right to the permanent 
 property in the substance of the earth itself: which excludes 
 every one else but the owner from the use of it. There is 
 indeed some difference among the writers on natural law, 
 concerning the reason why occupancy should convey this right, 
 and invest one with this absolute property : Grotius and 
 Puffendorf insisting that this right of occupancy is founded on 
 a tacit and implied assent of all mankind, that the first 
 occupant should become the owner ; and Barbeyrac, Titius, 
 Mr. Locke, and others, holding, that there is no such 
 implied assent, neither is it necessary that there should be ; 
 for that the very act of occupancy, alone, being a degree of 
 bodily labor, is from a principle of natural justice, without any 
 consent or compact, sufficient of itself to gain a title. A dispute 
 that savors too much of nice and scholastic refinement. How- 
 ever, both sides agree in this, that occupancy is the thing by 
 which the title was in fact originally gained ; every man seizing 
 to his own continued *use such spots of ground as he found [*9 
 most agreeable to his own convenience, provided he found them 
 unoccupied by any one else. 
 
 Property, both in lands and movables, being thus originally 
 acquired by the first taker, which taking amounts to a declaration 
 that he intends to appropriate the thing to his own use, it remains 
 in him, by the principles of universal law, till such time as 
 he does some other act which shows an intention to abandon it ; 
 for then it becomes, naturally speaking, publici juris once more, 
 and is liable to be again appropriated by the next occupant. So 
 if one is possessed of a jewel, and casts it into the sea or a public 
 highway, this is such an express dereliction, that a property will 
 be vested in the first fortunate finder that will seize it to his own 
 use. But if he hides it privately in the earth or other secret 
 place, and it is discovered, the finder acquires no property 
 
214 OF PROPERTY, IN GENERAL. 
 
 therein; for the owner hath not by this act declared any in ten 
 tion to abandon it, but rather the contrary : and if he loses or drops 
 it by accident, it cannot be collected from thence, that he de- 
 signed to quit the possession ; and therefore in such a case the 
 property still rema. ns in the loser, who may claim it again of the 
 finder. And this, we may remember, is the doctrine of the law 
 of England, with relation to treasure-trove. 
 
 But this method of one man's abandoning his property, and 
 another seizing the vacant possession, however well founded 
 in theory, could not long subsist in fact. It was calculated 
 merely for the rudiments of civil society, and necessarily ceased 
 among the complicated interests and artificial refinements of 
 polite and established governments. In these it was found, that 
 what became inconvenient or useless to one man, was highly con- 
 venient and useful to another ; who was ready to give in exchange 
 for it some equivalent, that was equally desirable to the former 
 proprietor. Thus mutual convenience introduced commercial 
 traffic, and the reciprocal transfer of property by sale, grant, or 
 *10] conveyance : which *may be considered either as a con- 
 tinuance of the original possession which the first occupant had ; 
 or as an abandoning of the thing by the present owner, and an 
 immediate successive occupancy of the same by the new 
 proprietor. The voluntary dereliction of the owner, and deliver- 
 ing the possession to another individual, amount to a transfer of 
 the property : the proprietor declaring his intention no longer to 
 occupy the thing himself, but that his own right of occupancy 
 shall be vested in the new acquirer. Or, taken in the other light, 
 if I agree to part with an acre of my land to Titius, the deed of 
 conveyance is an evidence of my intending to abandon the 
 property : and Titius, being the only or first man acquainted 
 with such my intention, immediately steps in and seizes the 
 vacant possession : thus the consent expressed by the con- 
 veyance gives Titius a good right against me ; and possession, or 
 occupancy, confirms that right against all the world besides. ' 
 
 The most universal and effectual way of abandoning property, 
 is by the death of the occupant : when, both the actual possession 
 and intention of keeping possession ceasing, the property which 
 is founded upon such possession and intention ought also to 
 cease of course. For, naturally speaking, the instant a man 
 ceases to be, he ceases t -> have any dominion : else if he had 
 
OF PR OPER TV, IN GENERAL. 2 1 5 
 
 a right to dispose of his acquisitions one moment beyond 
 his life, he would also have a right to direct theii 
 disposal for a million of ages after him : which would 
 be highly absurd and inconvenient. All property must 
 therefore cease upon death, considering men as absolute individ- 
 uals, and unconnected with civil society : for, then, by the prin- 
 ciples before established, the next immediate occupant would 
 acquire a right in all that the deceased possessed. But as, under 
 civilized governments which are calculated for the peace of man- 
 kind, such a constitution would be productive of endless disturb- 
 ances, the universal law of almost every nation (which is a kind 
 of secondary, law of* nature) has either given the dying person a 
 power of continuing his property, by disposing of his possessions 
 by will ; or, in case he neglects to dispose of it, or is not permitted 
 to make any disposition *at all, the municipal law of the [*11 
 country steps in, and declares who shall be the successor, repre- 
 sentative, or heir of the deceased ; that is, who alone shall have a 
 right to enter upon this vacant possession, in order to avoid that 
 confusion which its becoming again common would occasion. 
 And farther, in case no testament be permitted by the law, or 
 none be made, and no heir can be found so qualified as the law 
 requires, still, to prevent the robust title of occupancy from again 
 taking place, the doctrine of escheats is adopted in almost every 
 country ; whereby the sovereign of the state, and those who claim 
 under his authority, are the ultimate heirs, and succeed to those 
 inheritances to which no other title can be formed. 
 
 The right of inheritance, or descent to the children and re- 
 lations of the deceased, seems to have been allowed much earlier 
 than the right of devising by testament. We are apt to conceive 
 at first view that it has nature on its side ; yet we often mistake 
 for nature what we find established by long and inveterate cus 
 torn. It is certainly a wise and effectual, but clearly a political, 
 establishment ; since the permanent right of property, vested in 
 the ancestor himself, was no natural, but merely a civil right. 
 It is true, that the transmission of one's possessions to posterity 
 has an evident tendency to make a man a good citizen and a 
 useful member of society : it sets the passions on the side of duty, 
 and prompts a man to deserve well of the public, when he is sure 
 that the reward of his services will not die with himself, but be 
 transmitted to those with whom he is connected by the dearest 
 
2i6 OF PROPERTY, IN GENERAL. 
 
 and most tender affections. Yet, reasonable as this foundation 
 of the right of inheritance may seem, it is probable that its imme- 
 diate original arose not from speculations altogether so delicate 
 and refined, and, if not from fortuitous circumstances, at least from 
 a plainer and more simple principle. A man's children or neaiest 
 *12] relations are usually about him on his *death-bed, and are 
 the earliest witnesses of his decease. They become therefore 
 generally the next immediate occupants, till at length in process 
 of time this frequent usage ripened into general law. And there- 
 fore also in the earliest ages, on failure of children, a man's ser- 
 vants born under his roof were allowed to be his heirs ; being 
 immediately on the spot when he died. For, we iind the old 
 patriarch Abraham expressly declaring, that "since God had 
 given him no seed, his steward Eliezer, one born in his house, 
 was his heir." 
 
 While property continued only for life, testaments were use- 
 less and unknown : and, when it became inheritable, the inherit- 
 ance was long indefeasible, and the children or heirs at law were 
 incapable of exclusion by will. Till at length it was found, that 
 so strict a rule of inheritance made heirs disobedient and head- 
 strong, defrauded creditors of their just debts, and prevented many 
 provident fathers from dividing or charging their estates as the ex- 
 igence of their families required. This introduced pretty generally 
 the right of disposing of one's property, or a part of it, by testament; 
 that is, by written or oral instructions properly witnessed and 
 authenticated, according to the pleasure of the deceased, which 
 we therefore emphatically style his will. This was established 
 in some countries much later than in others. With us in England, 
 till modern times, a man could only dispose of one-third of his 
 movables from his wife and children ; and, in general, no will 
 was permitted of lands till the reign of Henry the Eighth ; and 
 then only of a certain portion : for it was not till after the resto- 
 ration that the power of devising real property became so univer* 
 sal as at present. 
 
 Wills therefore and testaments, rights of inheritance and suc- 
 cessions, are all of them creatures of the civil or municipal laws, 
 and accordingly are in all respects regulated by them ; every 
 distinct country having different ceremonies and requisites to 
 make a testament completely valid ; neither does any thing vary 
 *13] more than the right of inheritance under different *national 
 
OF PROPERTY, IN GENERAL. 217 
 
 establishments. In England particularly, this diversity is carried 
 to such a length, as if it had been meant to point out the power 
 of the laws in regulating the succession to property, and how 
 futile every claim must be, that has not its foundation in the 
 positive rules of the state. In personal estates the father may 
 succeed to his children ; in landed property he never can be 
 their immediate heir, by any the remotest possibility ■} in general 
 only the eldest son, in some places only the youngest, in others 
 all the sons together, have a right to succeed to the inheritance : 
 m real estates males are preferred to females, and the eldest male 
 will usually exclude the rest ; in the division of personal estates, 
 the females of equal'degree are admitted together with the males, 
 md no right of primogeniture is allowed. 
 
 This one consideration may help to remove the scruples of 
 many well-meaning persons, who set up a mistaken conscience 
 in opposition to the rules of law. If a man disinherits his son, 
 by a will duly executed, and leaves his estate to a stranger, there 
 are many who consider this proceeding as contrary to natural 
 justice ; while others so scrupulously adhere to the supposed in- 
 tention of the dead, that if a will of lands be attested by only two 
 witnesses instead of three, which the law requires, they are apt 
 to imagine that the heir is bound in conscience to relinquish his 
 title to the devisee. But both of them certainly proceed upon 
 very erroneous principles, as if, on the one hand, the son had by 
 nature a right to succeed to his father's lands ; or as if, on the 
 other hand, the owner was by nature entitled to direct the succes- 
 sion of his property after his own decease. Whereas the law of 
 nature suggests, that on the death of the possessor the estate 
 should again become common, and be open to the next occupant, 
 unless otherwise ordered for the sake of civil peace by the posi- 
 tive law of society. The positive law of society, which is with us 
 the municipal law of England, directs it to vest in such person as 
 the last proprietor shall by will, attended with certain requisites, 
 appoint ; and, in defect of such appointment, to go to some par- 
 ticular person, who from the result *of certain local consti- [*14 
 tutions, appears to be the heir at law. Hence it follows, that 
 where the appointment is regularly made, there cannot be a shad- 
 ow of right in any one but the person appointed : and, where 
 
 ' But now it is the general r lie, both in England and in this country, that 
 a fa'her may inherit real property from his child, in default of lineal descend- 
 ints of the latter. This change has bren effected bv statutory provisions. 
 
2i8 OF PROPERTY, IN GENERAL. 
 
 the necessary requisites are omitted, the right of the heir is equal' 
 ly strong, and built upon as solid a foundation, as the right of 
 the devisee would have been, supposing such requisites were 
 observed. 
 
 But, after all, there are some few things, which, notwithstand- 
 ing the general introduction and continuance of property, must 
 still unavoidably remain in common ; being such wherein noth- 
 ing but an usufructuary property is capable of 'being had ; and 
 therefore they still belong to the first occupant, during the time 
 he holds possession of them, and no longer. Such (among others) 
 are the elements of light, air, and water; which a man may occupy by 
 means of his windows, his gardens, his mills and other conveniences: 
 such also are the generality of those animals which are said to be 
 fer(2 natures, or of a wild and untamable disposition ; which any 
 man may seize upon and keep for his own use and pleasure. All 
 these things, so long as they remain in possession, every man 
 has a right to enjoy without disturbance ; but if once they escape 
 from his custody, or he voluntarily abandons the use of them, 
 they return to the common stock, and any man else has an equal 
 right to seize and enjoy them afterwards. 
 
 Again : there are other things in which a permanent prop- 
 erty may subsist, not only as to the temporary use, but also the 
 solid substance ; and which yet would be frequently found with- 
 out a proprietor, had not the wisdom of the law provided a rem> 
 edy to obviate this inconvenience. Such are forests and other 
 waste grounds, which were omitted to be appropriated in the gen- 
 eral distribution of lands ; such also are wrecks, estrays, and that 
 species of wild animals which the arbitrary constitutions of posi- 
 tive law have distinguished from the rest by the well-known ap- 
 pellation of game. With regard to these and some others, as dis- 
 15*] turbances and quarrels *would frequently arise among indi- 
 viduals, contending about the acquisition of this species of prop- 
 erty by first occupancy, the law has therefore wisely cut up 
 the root of dissension, by vesting the things themselves in the 
 sovereign of the state : or else in his representatives appointed 
 and authorized by him, being usually the lords of manors- 
 And thus the legislature of England has universally promoted 
 the grand ends of civil society, the peace and security of Individ 
 uals, by steadily pursuing that wise and orderly maxim, of a» 
 signing to every thing capable of ownership a legal and deter 
 minate owner. 
 
OF REAL PROPERTY, ETC. 219 
 
 CHAPTER II. 
 
 [bL. COMM. BOOK II. CH. II.] 
 
 t 
 Of Real Property; and, first of Corporeal Hereditaments. 
 
 The objects of dominion or property are things, as contra- 
 distinguished from persons : and things are by the law of England 
 distributed into two 'kinds ; things real and things personal. 
 Things real are such things as are permanent, fixed, and immova- 
 ble, which cannot be carried out of their place ; as lands, and 
 tenements : things personal are goods, money, and all other mova- 
 bles ; which may attend the owner's person wherever he thinks 
 proper to go. 
 
 In treating of things real, let us consider, first, their several 
 ^orts or kinds; secondly, the tenures by which they may be holden , 
 thirdly, the estates which may be had in them ; zxiA fourthly, the 
 title to them, and the manner of acquiring and losing it. 
 
 First, with regard to their several sorts or kinds, things real 
 are usually said to consist in lands, tenements, or hereditaments. 
 Land comprehends all things of a permanent, substantial nature ; 
 being a word of a very extensive signification, as will presently 
 appear more at large. Tenement is a word of still greater extent, 
 and though in its vulgar *acceptation it is only applied [*17 
 to houses and other buildings, yet, in its original, proper, and 
 legal sense, it signifies everything that may be holde?t, provided 
 it be of a permanent nature ; whether it be of a substantial and 
 sensible, or of an unsubstantial ideal kind. Thus liberum teiic- 
 mentum, frank tenement, or freehold, is applicable not only to 
 lands and other solid objects, but also to offices, rents, commons, 
 and the like : and, as lands and houses are tenements, so is an 
 advowson a tenement ; and a franchise, an office, a right of com- 
 mon, a peerage, or other property of the like unsubstantial kindi 
 are all of them, legally speaking, tenements. But an heredita- 
 ment, says Sir Edward Coke, is by much the largest and most 
 comprehensive expression : for it includes not only lands and 
 •^enemonts, but whatsoever may be inherited, be it corpoieal 01 
 
220 OF REAL PROPERTY; 
 
 incorporeal, real, personal, or mixed. Thus an heir-loom, oi 
 implement of furniture which by custom descends to the heir 
 together with a house, is neither land, nor tenement, but a mere 
 movable: yet being inheritable, is comprised under the general word 
 hereditament : ^ and so a condition, the benefit of which may de- 
 scend to a man from his ancestor, is also an hereditament.^ 
 
 Hereditaments then, to use the largest expression, are of two 
 kinds, corporeal and incorporeal. Corporeal consist of such as 
 affect the senses ; such as mayT^e seen and handled by the body : 
 incorporeal are not the object of sensation, can neither be seen 
 nor handled, are creatures of the mind, and exist only in contem- 
 plation. 
 
 Corporeal hereditaments consist wholly of substantial and 
 permanent objects ; all which may be comprehended under the 
 general denomination of land only. For land, says Sir Edward 
 Coke, comprehendeth, in its legal signification, any ground, soil, 
 ■ M earth whatsoever ; as arable, meadows, pastures, woods, moors, 
 waters, marshes, furzes, and heath. 
 *18] * It legally includeth also all castles, houses, and other 
 
 ' Heir-looms, by the English law, are such personal chattels as go by 
 force of a special custom to the heir along with the inheritance, and not to 
 the executor or administrator of the former owner, as the usual laws for the 
 disposition of personal property require. The rule of law is, that whatever 
 goes to the heir is real property, while whatever goes to the executor or 
 administrator is personal property ; so that heir-looms come within the for- 
 mer category. Such are the ancient jewels of the crown ; also deeds of 
 land, together with the receptacles in which they are placed ; and plate, pic- 
 tures, furniture, etc., which pass with the mansion-house of the deceased. 
 Heir-looms cannot be disposed of by will, if the land be left to pass to the 
 heir. In American law this doctrine of heir-looms does not exist, unless 
 deeds of land which pass to the heir are regarded as belonging to this class 
 of hereditaments ; but this point is not determined. 
 
 2 By a condition is here meant a qualification or restriction annexed to a 
 conveyance of land, whereby it is provided that in case a particular event 
 does or does not happen, or a particular act is done or omitted to be done, 
 an estate shall commence, be enlarged, or defeated ; as, if land be conveyed 
 to a railroad company and its successors, on condition that the company 
 shall construct its line of track thereon within a certain stipulated period. 
 If, in such a case, the condition is broken by non-fulfilment of its require- 
 ments, the grantor or his heirs must enter or bring action to recover pos- 
 session of the land. If this is not done, the estate will still continue in the 
 grantee. {Nicoll v. Erie R. Co., 12 N. Y. 121.) These rules will be 
 a iverted to more at length in a subsequent chapter. 
 
CORPOREAL HEREDITAMENTS. 221 
 
 buildings: for they consist,saith he, of two things; land, which is the 
 foundatiou, and structure thereupon ; so that if I convey the land 
 or ground, the structure or building passeth therewith. It is ob- 
 servable thatwa^^ris here mentioned as a species of land, which 
 may seem a kind of solecism ; but such is the language of the 
 law : and therefore I cannot bring an action to recover possession 
 of a pool or other piece of water by the name of waier only ; 
 either by calculating its capacity, as, for so many cubical yards ; 
 or, by superficial measure, for twenty acres of water : or by gene- 
 ral description, as for a pond, a watercourse, or a rivulet : but I 
 must bring my actioij for the land that lies at the bottom, and 
 roust call it twenty acres of land covered with water. * For 
 water is a movable wandering thing, and must of necessity con 
 tinue common by the law of nature ; so that I can only have a 
 temporary, transient, usufructuary property therein : wherefore, 
 if a body of water runs out of my pond into another man's, 1 
 have no right to reclaim it. But the land, which that water 
 covers, is permanent, fixed, and immovable : and therefore in 
 this I may have a certain substantial property : of which the law 
 will take notice, and not of the other. 
 
 Land hath also, in its legal signification, an indefinite extent, 
 upwards as well as downwards.' Cujus eat solum, ejus est 
 
 ' A grant of a river, under that designation, will not include the river-bed, 
 nor an island within it. (Jackson v. Hahtead, 5 Cow. 216.) If there be 
 between the land of two adjacent owners a stream in which the tide does 
 not ebb and flow (called in law a non-navigable stream), each of them, as a 
 general rule, owns the river-bed to the centre of the stream. (Seneca Nation 
 V. Knigkt, 25 N. Y. 498.) The conveyance of land, therefore, wliicli is 
 bounded upon such a stream, will commonly convey the title to the ceniic. 
 If such a stream be wholly within one man's premises, he owns the entire 
 bed. But if the river be one in which the tide ebbs and flows («. e., "navi- 
 gable,") the soil beneath is vested in the State, while the public generally 
 have a right of passing over such stream in boats, vessels, etc., and of fish- 
 ing in its waters. But some States adopt a different test as to navigability. 
 (94 U. S. 324.) 
 
 A grant of land, bounded upon a highway, will convey the title to the soil 
 as far as the centre of the highway, in the absence of a clear intention to 
 exclude it. {Bissellv. N. Y. Cent. R. Co., 23 N. Y. 6i.) But the parties may, 
 by appropriate language in the deed, limit the boundary to the line of the 
 highway. (Mottv. Mott, 68 N. Y. 246.) 
 
 * If the trunk of a tree stands wholly upon one man's land, while the 
 roots extend into the premises of an adjacent owner, the former is the 
 owner of the whole tree. The same is true if the branches overhang the 
 adjacent premises, and the owner of the land on which the trunk stands is 
 
222 OF REAL PROPERTY, ETC. 
 
 usque ad ccelum, is the maxim of the law ; upwards, therefore ns 
 man may erect any building, or the like, to overhang another's 
 land : and, downwards, whatever is in a direct line, between the 
 surface of any land and the centre of the earth, belongs to the 
 owner of the surface ; as is every day's experience in the mining 
 countries. So that the word " land " includes not only the face 
 of the earth, but every thing under it, or over it.* And there- 
 fore, if a man grants all his lands, he grants thereby all his mines 
 of metal and other fossils, his woods, his waters, and his houses, 
 as well as his fields and meadows." Not but the particular 
 *l9] names of the thing are *equally sufficient to pass them, 
 except in the instance of water ; by a grant of which, noth- 
 ing passes but a right of fishing : ' but the capital distinction 
 is this, that by the name of a castle, messuage, ° toft, croft, or 
 the like, nothing else will pass, except what falls with the utmost 
 propriety under the term made use of ; ° but by the name of 
 
 entitled to all the fruit that may grow on the entire tree. But in such cases, 
 the adjacent owner may lop off the branches, or cut off the roots at the 
 dividing line. {Hoffman v. Armstrong, 48 N. Y. 201 ; Dubois v. Beaver, 25 
 N. Y. 123.) But if a tree grows upon the dividing line, part of its trunk extend- 
 ing into the lands of neighboring owners, they are tenants in common of 
 the tree, and neither of them has a right to do injury to it of his own will. 
 
 ^ Growing trees, and growing crops or grass, will pass by a conveyance of 
 the land. {Goodyear \. Vosburgh, 57 Barb. 243; Austin v. Sawyer, 9 Cow. 
 39.) So trees cut and lying upon the land, or blown down by the wind, will 
 pass by the deed. {Brackett v. Goddard, 54 Me. 313.) 
 
 « But a man, being the owner of land, may sell or otherwise dispose of 
 the minerals within it, retaining the surface, and giving the purchaser 
 only a right of so far breaking the surface, as may be necessary for the pur- 
 pose of opening a mine. And the ownership of any portion of the space, 
 from the centre of the earth outwards, may be held as a distinct property : a 
 man may have an estate of inheritance, not only in a seam of coal, but even 
 of a story of a house, or a box at a theatre. (Br. & H. Comm. ii. 16.) 
 
 ' [Or the right to use the water, as in the case of rivers and mill streams.] 
 
 ^A messuage \s generaWy held to include the dwelling-house, together 
 with such outbuildings and immediately adjacent premises as are commonly 
 occupied therewith. Thus, it would include a barn, stable, a garden, 
 orchard, etc. It is usually defined as denoting whatever is included within 
 the " curtilage," or common enclosure about the premises. A to/t, by old 
 English law, was land upon which a building had fallen to decay, while a 
 cro/t was an enc.osed piece of land near a messuage. 
 
 ' But the grant of a house or other building passes the land on which it 
 stands. So the grant of a mill has been held to pass land adjoining it, which 
 
OF INCORPOREAL HEREDITAMENTS. 223 
 land, which is nomen generalissimum, every thing terrestrial will 
 
 CHAPTER III. 
 
 [BL. COMM. —book II. CH. III.] 
 
 Of Incorporeal Hereditaments. 
 
 An incorporeal hereditament is a right issuing out of a thirg 
 corporate (whether real or personal) or concerning, or annexed 
 to, or exercisable within the same. It is not the thing corporate 
 itself, which may consist in lands, houses, jewels, or the like ; but 
 
 was necessary for its use, and was actually used in connection with t!.e 
 mill. The land is said to pass in these cases as parcel ai the thing expressly 
 conveyed. (Esty v. Currier, 98 Mass. 501 ; Gear v. Barnum, 37 Conn. 229.) 
 But rights of way over adjacent premises, enjoyed in connection with a piece 
 of land, would pass by a conveyance of such land as "appurtenant" thereto. 
 The distinction is that incorporeal rights which pass are appurtenant, 
 while land itself passes -as parcel of that conveyed, since it is tangible and 
 corporeal. (Woodhull v. Rosenthal, 6i N. Y. 382.) 
 
 '"It is important, in this connection, to notice the subject of " fixtures.' 
 A fixture may be defined as an article or structure which, in itself personal 
 property, has been annexed, or has become accessory to real estate. In some 
 cases, such articles are held to have become real estate by reason of their 
 annexation or connection with land, while in others they are deemed, not- 
 withstanding such annexation, to still remain personal property. It is, 
 therefore, of much consequence to understand the rules of law by which 
 the nature of such articles, with reference to their being real or personal, is 
 to be determined. 
 
 It was formerly a well settled doctrine of law, that whatever was attached 
 to land became a part of it, and was, therefore, real estate. This principle 
 was expressed in a Latin maxim, Quicquid plantatur solo, solo cedit — i. e., 
 " whatever is affixed to the soil belongs to the soil," or passes with it. But 
 to this rule several well recognized classes of exceptions have, in the pro- 
 gress of jurisprudence, become established. In determining, therefore, in 
 the present state of the law, whether a personal chattel affixed to land has 
 thereby become real estate, it is necessary to consider the nature of the an- 
 nexation, the presumable intention with which it has been made, and the 
 parties who are interested in such property, and between whom questions tn 
 
224 OF INCORPOREAL HEREDITAMENTS. 
 
 something, collateral thereto, as a rent issuing out of those lands 
 or houses, or an office relating to those jewels. In short, as the 
 logicians speak, corporeal hereditaments are the substance, which 
 may be always seen, always handled : incorporeal hereditaments, 
 
 regard to its character may arise. These several inquiries may be noticed 
 separately : — 
 
 I. The primary inquiry must be, whether there has been a true annexa- 
 tion, in the legal sense of the term. This annexation may either be actual 
 or constructive. It is actual, when the chattel is really and actually attached 
 to, or connected with the land; constructive, when there is no such real at- 
 tachment, but the articles, though portable or easily removable, are common- 
 ly used in connection with the premises and are properly appurtenant there- 
 to. Thus, mirrors, grates, furnaces, machinery, etc., would be actual fix- 
 tures ; while door-keys, removable shutters, or detached window-blinds, doors, 
 windows, locks, knobs, or fences, which are to be replaced, would be 
 illustrations of constructive fixtures. But if articles of a personal nature, 
 as boards, bricks, etc., are actually built into a house or other structure 
 which constitutes real estate, they become unquestionably real property, and 
 no inquiry in regard to their being real or personal is necessary. But the 
 term " fixtures " properly applies only to those personal chattels in refer- 
 ence to which such an inquiry may reasonably be prosecuted. So if articles 
 such as planks, boards or other chattels, are merely placed upon land tem- 
 porarily, or suffered to remain there as a place of deposit, they are beyond 
 question still personal property and not fixtures. 
 
 II. The next inquiry, and the one which is of chief importance, is in re- 
 gard to the probable or reasonably presumable intention with which the ad 
 dition or annexation was made. Attention is not to be paid so much to the 
 actual intent as to the reasonably presumable intent, with respect to all the 
 circumstances of the case. When land is sold with fixtures thereon, as, e.g., 
 machinery or detached fences, which would naturally and reason- 
 aljly be deemed to have been intended for the permanent use and 
 improvement of the premises, they will pass to the purchaser as pari 
 of the land, notwithstanding the vendor may claim that it was Iiis ex- 
 press purpose only to allow such articles to remain temporarily upon 
 the premises and afterwards to remove them. (12 N. Y. 170; 66 N. Y.489.) 
 But if tlie vendor's actual intent be communicated to the purchaser, or the 
 articles thus annexed were mortgaged as chattels, or an agreement were made 
 between the parties that they should still retain their character as personal 
 estate, no distinction could be drawn between real intent and presumed 
 intent, and the rights of the parties would be determined with reference 
 to their understanding. (^Campbell v. Roddy, 44 N. J. Eq. 244; Voorhees 
 V. McGinnis, 48 N. Y. 278; Potter v. Cromwell, 40 N. Y. 287; see 61 
 Mich. 117; 117 Ind. 176.) Where both parties interested concur in a 
 common intent, this must govern their relations and interests in regard 
 to the property. {Sheldon v. Edwards, 35 N. Y. 279.) So if the party 
 making the erections intended them to remain personal property, and made 
 an agreement to that effect with a third person, who would be injured 
 
OF INCORPOREAL HEREDITAMENTS. 225 
 
 are but a sort of accidents, which inhere in and are supported by 
 that substance ; and may belong, or not belong to it, without any 
 visible alteration therein. Their existence is merely in idea and 
 
 if this agreement were not observed and carried out, this intent may be al- 
 lowed to govern, although another party who has an interest in the 
 premises, would ordinarily be entitled to consider such articles as having 
 become real property. The distinction is between the intentmerely of the 
 party adding the fixture, and this intent as affecting third parties. If A. 
 Iiuilds machinery into a factory on which B. has a mortgage, and has a secret 
 intent, of which B. knows nothing, that it shall remain personal estate, it will 
 nevertheless be held to be part of the land and bound by the mortgage ; but 
 if A. had made an agreement with C. that the machinery should continue to 
 be a chattel, this agreement would prevail, and B. would have no claim to this 
 addition. (Tifftv. Hortoit, 53 N. Y. 377.) (In some States, however, B.'s 
 claim would be preferred, even in such a case.) If annexations are made for 
 purposes of trade by tenants for years, \h& presumed intention is that the 
 tenant purposes to remove them ; for it is not to be supposed that he de- 
 signs giving them to the landlord, and thus incurring loss himself. Hence, 
 different rules prevail between parties occupying such a relation than in other 
 cases. In addition to the consideration of intention, principles of public 
 policy are of much weight in regard to the law of fixtures. This, for in- 
 stance, would require that vendors of land should not deceive pur- 
 chasers by leading them to believe, by the appearance of the premises, 
 that additions thereto passed by the grant, when there was a secret 
 purpose that they should remain personal property ; and, therefore, 
 they should be deemed real estate. But, on the contrary, considerations 
 of public policy would lead to the conclusion that tenants for years 
 should be allowed to remove articles erected for purposes of trade, in order 
 that manufacturing may be encouraged, and industrial enterprise be pro- 
 moted. Therefore, in this case, annexations for such purposes are rather 
 to be regarded as personal property. 
 
 III. The third inquiry is in regard to the parties having interests in the 
 premises and between whom questions in regard to fixtures may arise. They 
 may be divided into two great classes : (A) Parties interested in property 
 on which fixtures have been erected by one having a permanent interest 
 therein. These are, (i) heir and executor of one adding the fixtures; (2) 
 mortgagor and mortgagee, where the former erects the fixtures ; (3) vendor 
 and vendee of land with fixtures thereon ; (4) vendor and contractor to buy 
 land, in a similar case. The second class is (B) Parties interested in prop- 
 erty on which fixtures have been erected by one having a temporary in- 
 terest therein. These are, (i) landlord and tenant, where the latter erects 
 the fixtures ; (2) tenant for life and remainder-man or reversioner. This 
 distinction into classes depends to a large extent, as has already been in- 
 dicated, upon considerations of presumed intent and public policy above 
 considered. 
 
 In the first class of cases [those under (A)], the general principle 'is that 
 attachments to the land constitute a part of it, and are, therefore, real es- 
 1.5 
 
226 OF INCORPOREAL HEREDITAMENTS. 
 
 abstracted contemplation ; though their effects and profits may 
 be frequently objects of our bodily senses. And indeed, if we 
 would fix a clear notion of an incorporeal hereditament, we must 
 
 tate. They will, therefore, (i) pass to the heir rather than to the executor, 
 will (2) form part of the security under a mortgage for the benefit of the mort- 
 gagee, will (3) pass to a vendee of the land under a deed, and (4) be em- 
 braced within the contract of one who agrees to purchase the land. But this 
 is only true of such annexations as are presumed in law to have been made 
 for the permanent hnprovement and habitual enjoyment of the premises, 
 and to have an adaptability to the ordinary use of the property. Even as 
 between these parties, additions to the land may be personal property. This 
 would be the case when the presumption was that the addition was made 
 only for temporary purposes. The mode of fastening is, in many cases, an 
 important test. Thus, looms merely fastened by screws to keep them steady, 
 have been held to be personal property as between mortgagor and mortgagee. 
 (18 N. Y. 28; s. P. 132 Mass. 447.) The same view was taken where ma- 
 chinery was secured to the building merely by cleats. (10 Barb. 157; and 
 see 38 N. J. Eq. 575; 140 Mass. 416.) But where the machinery of a mill 
 was fastened to the building by means of rods and bolts passing through the 
 frame-timbers and floor-joists, and secured by nuts, and the mill was to be 
 used as a permanent structure for a grist mill for the neighborhood, the 
 machinery was held to be part of the realty. (Potter v. Cromwell, 40 N. Y. 
 287.) The mode and purpose of fastening indicated that the annexation was 
 made for permanency. The great size or bulkiness of the article, or the place 
 where it is erected, are also important to be considered in determining its 
 character. Thus, a colossal statue, weighing with its pedestal about three 
 tons, which was placed as an ornament upon a lawn in front of a house, and 
 rested upon a permanent foundation, was held to be real estate ; so of a sun- 
 dial placed on a durable base. (Snedeker v. Waring, 12 N. Y. 170.) The 
 following cases may also be referred to for the sake of illustration. They 
 all exhibit the application of the same principle, viz., to determine whether 
 the fixture was erected or added for permanency: Thus, hop-poles taken 
 down and piled in the yard, were held to pass, by the deed of the premises, to 
 the vendee {Bishop v. Bishop, 11 N. Y. 123) ; so of fencing materials, though 
 temporarily detached from the soil {Goodrich v. Jones, 2 Hill, 142) ; and of 
 fixtures put up by the owner to fit the premises for use as a dry goods store 
 {Tabor V. Robinson, 36 Barb. 483) ; so of a furnace, as between mortgagor and 
 mortgagee (4 E. D. Sm. 273 ; but not, if easily detachable, 36 N. J. Eq. 61) ; 
 but gas-fixtures, merely screwed on the house-pipes, are chattels (81 N. Y. 
 38) ; and the rolling-stock of a railroad has been held in New York to be per- 
 sonal property, as between mortgagor and mortgagee {Hoyle v. Plattsburg, 
 Gr'c., R. R. Co., 54 N. Y. 314). In some States, however, it is held to be real 
 estate. Fixtures erected by the owner upon property which has been mort- 
 gaged will, as a general rule, be deemed real estate, and be bound by the 
 mortgage, unless the rights of third parties are involved. {Snedeker v. 
 Waring, 12 N. Y. 170; Smith Paper Co. v. Servin, 130 Mass. 511 ; Wright 
 v. Gray, 73 Me. 297.) 
 
OF INCORPOREAL HEREDITAMENTS. 227 
 
 be careful not to confound together the profits produced, and 
 the thing, or hereditament, which produces them. An annuity, 
 for instance, is an incorporeal hereditament : for though the 
 money, which is th^ fruit or product of this annuity, is doubtless 
 of a corporeal nature, yet the annuity itself, which produces that 
 money, is a thing invisible, has only a mental existence, and 
 cannot be delivered over from hand to hand. So tithes, if we 
 consider the *produce of them, as the tenth sheaf or tenth [*21 
 lamb, seem to be completely corporeal ; yet they are indeed incor- 
 poreal hereditaments : for they, being merely a contingent spring- 
 ing right, collateral to or issuing out of lands, can never be the 
 object of sense : that casual share of the annual increase is not, till 
 severed, capable of being shown to the eye, nor of being delivered 
 into bodily possession. 
 
 (B) In regard to the subject of fixtures, as between landlord and tenant, 
 the rules of law are essentially different. Such additions are treated ordinarily 
 as removable by the tenant before the expiration of his lease, when made, 
 
 (i) For purposes of trade or manufacture ; as, for instance, a cider-mill and 
 press, temporary sheds or buildings, copper-stills and kettles for distilling, 
 engines and machinery, though firmly affixed to a buildmg, etc. {Hanrahan 
 V. O'Reilly, 102 Mass. 201 ; Onibony v. Jones, 19 N. Y. 234; Hey v.Bruner, 
 61 Pa. St. 87 ; Van IVess v. Packard, 2 Pet. 137 ; see 76 N. Y. 23.) 
 
 (2) For agricultural purposes. — Thus nursery trees may be removed as per- 
 sonal property, (i Metcalf, 27; see 51 Barb. 196.) In England, the com- 
 mon-law rule was different, though by statute some exceptions have been made. 
 
 (3) For domestic use and convenience, and the necessary enjoyment of the 
 premises ; as, stoves, gas-fixtures, etc. (4 Gray, 256 ; 77 Pa. St. 437 ; I Duer, 
 363.) But in all tliese cases the articles must be removed within the term of 
 the tenant's lease, or during such further period of possession as he holds the 
 premises with right to consider himself as tenant, or they will become the 
 landlord's property. If a tenant erects fixtures, and then the lease is renewed 
 without any agreement in regard to such fixtures, his right to remove them is 
 lost. (45N. Y. 792; loi Pa. St. 265 ; I03lnd. 203.) But the landlord and 
 tenant may vary their common-law rights in regard to removal by any agree- 
 ment, not unlawful on other grounds, which they may see fit to make, (fiubois 
 V. Kelly, 10 Barb. 496 : see 69 Wis. 501 ; 37 Minn. 459.) 
 
 As between a tenant for life and remainder-man or reversioner, the rules are 
 substantially the same as between landlord and tenant for years, and the arti- 
 cles pass to the executor or administrator of the life-tenant. But he has a 
 reasonable time, after the life-tenant's death, in which to remove them. 
 
 Additions made to the land by the tenant for other purposes than those 
 here specified, are generally held to be real property, and to belong to the land- 
 lord. {Kissam v. Barclay, 17 Abb. Pr. 360.) So the tenant cannot remove 
 such annexations as would be substantially destroyed by removal. (149 
 Mass. 578.) 
 
228 OF INCORPOREAL HEREDITAMENTS. 
 
 Incorporeal hereditaments are principally of ten sorts ; advow 
 aons, tithes, commons, ways, offices, dignities, franchises, coro- 
 dies or pensions, annuities, and rents.' 
 
 I. (III.) Common, or right of common, appears from its very 
 definition to be an incorporeal hereditament : being a profit which 
 a man hath in the land of another ; as to feed his beasts, to catch 
 fish, to dig turf, to cut wood, or the like." And hence common 
 is chiefly of four sorts ; common of pasture, or piscary, of tur- 
 bary, and of estovers. 
 
 I. Common oi pasture is a right of feeding one's beasts on 
 another's land : for in those waste grounds, which are usually 
 called commons, the property of the soil is generally in the lord 
 of the manor ; as in common fields it is in the particular tenants. 
 This kind of common is either appendant, appurtenant, because 
 of vicinage, or in gross. 
 
 *33] *Common appendant is a right belonging to the owners 
 or occupiers of arable land, to put commonable beasts upon the 
 lord's waste, and upon the lands of other persons within the same 
 manor. Commonable beasts are either beasts of the plough, or 
 such as manure the ground. This is a matter of the most uni- 
 versal right ; and it was originally permitted, not only for the en- 
 couragement of agriculture, but for the necessity of the thing. 
 For, when lords of manors granted out parcels of land to ten- 
 ants, for services either done or to be done, these tenants could 
 not plough or manure the land without beasts ; these beasts 
 could not be sustained without pasture ; and pasture could not be 
 had but in the lord's wastes, and on the uninclosed fallow grounds 
 of themselves and the other tenants. The law therefore an- 
 nexed this right of common, as inseparably incident to the grant of 
 the lands ; and this was the original of common appendant : which 
 obtains in Sweden, and the other northern kingdoms, much in 
 
 1 Those portions of this chapter relating to advowsons, tithes, offices, dig- 
 nities, corodies or pensions, have been omitted, as being of little importance 
 to the American student. 
 
 2 [The proper description of a common is, that it is a profit a prendre, 
 a right to take or sever something valuable from the land of another ; and 
 this distinguishes it from mere easements, which are rights merely to use or 
 interfere with the use of another's property.] Thus, a right to take fish from 
 another man's waters, would be profit a prendre; a right to send water through 
 a drain in his premises, or 1 1 pass over his land habitually, would be an ease' 
 ment 
 
OF INCORPOREAL HEREDITAMENTS. 229. 
 
 the same manner as in England. Common appurtenant ariseth 
 from no connection of tenure, nor from any absolute necessity : 
 but may be annexed to lands in other lordships, or extend to 
 other beasts, besides such as are generally commonable ; as hogs, 
 goats, or the like, which neither plough nor manure the ground. 
 This not arising from any natural propriety or necessity, like 
 common appendant, is therefore not of general right; but can 
 only be claimed by immemorial usage and prescription, which 
 the law esteems sufficient proof of a special grant or agreement 
 for this purpose. Common because of vicinage, or neighbor- 
 hood, is where the inhabitants of two townships, which lie con- 
 tiguous to each other, have usually intercommoned with one an- 
 other ; the beasts of the one straying mutually into the other's 
 fields, without any molestation from either. This is indeed only 
 a permissive right, intended to excuse what in strictness is a 
 trespass in both, and to prevent a multiplicity of suits : and 
 therefore either township may enclose and bar out the other, 
 though they have intercommoned time out of mind. Neither 
 hath any person of one town a right to put his beasts originally 
 *into the other's common ; but if they escape, and stray [*34 
 thither of themselves, the law winks at the trespass. Common 
 in gross, or at large, is such as is neither appendant nor appurte- 
 nant to land, but is annexed to a man's person ; being granted 
 to him and his heirs by deed ; or it may be claimed by prescrip- 
 tive right, as by a parson of a church, or the like corporation 
 sole. This is a separate inheritance, entirely distinct from any 
 landed property, and may be vested in one who has not a foot of 
 ground in the manor. 
 
 All these species, of pasturable common, may be and usually 
 are limited as to number and time ; but there are also com- 
 mons without stint., and which last all the year. By the statute 
 of Merton, however, and other subsequent statutes, the lord of a 
 manor may enclose so much of the waste as he pleases for tillage 
 or woodground, provided he leaves common sufficient for such 
 as are entitled thereto. This enclosure, when justifiable, is called 
 in law, "approving:" an ancient expression signifying the same 
 as " imj)roving." The lord hath the sole interest in the soil ; 
 but the interest of the lord and commoner, in the common, are 
 looked upon in law as mutual. They may both bring actions for 
 damage done, either against strangers, or each other ; the lord 
 
230 OF INCORPOREAL HEREDITAMENTS. 
 
 for the public injury, and each commoner for his private dam 
 age. 
 
 2, 3. Common of piscary is a liberty of fishing in another 
 man's water ; as common of Uirbary is a liberty of digging turi 
 upon another's ground. There is also a common of digging for 
 coals, minerals, stones, and the like. All these bear a resem- 
 blance to common of pasture in many respects : though in one 
 point they go much further ; common of pasture being only a 
 right of feeding on the herbage and vesture of the soil, which 
 renews annually ; but common of turbary, and those aforemen- 
 tioned, are a right of carrying away the very soil itself. 
 *35] *4. Common of estovers or estouviers, that is, necessaries 
 (from estoffer, to furnish), is a liberty of taking necessary wood, 
 for the use or furniture of a house or farm, from off another's es- 
 tate. The Saxon word, bote, is used by us as synonymous to the 
 French estovers : and therefore house-bote is a sufficient allow- 
 ance of wood, to repair, or to burn in, the house : which latter is 
 sometimes called fire-bote : plough-bote and cart-bote are wood 
 to be employed in making and repairing all instruments of hus- 
 bandry ; and hay-bote, or hedge-bote, is wood for repairing of 
 hays, hedges, or fences. These botes or estovers must be reason- 
 able ones ; and such any tenant or lessee may take off the land 
 let or demised to him, without waiting for any leave, assignment, 
 or appointment of the lessor, unless he be restrained by special 
 covenant to the contrary. 
 
 These several species of commons do all originally result from 
 the same necessity as common of pasture ; viz. for the mainte- 
 nance and carrying on of husbandry ; common of piscary being 
 given for the sustenance of the tenant's family ; common of tur- 
 bary and fire-bote for his fuel ; and house-bote, plough-bote, cart- 
 bote, and hedge-bote, for repairing his house, his instruments ol 
 tillage, and the necessary fences of his grounds.' 
 
 I. (IV.) A fourth species of incorporeal hereditaments is that 
 of ways ; or the right of going over another man's ground.* I 
 
 « The subject ot rights of common is of comparatively little importance 
 in American law, not many cases having arisen in which questions of this 
 kind have been presented. It will only be necessary, therefore, to refer to a 
 few of these cases, for the sake of illustration. {Smith v. Floyd, 18 Barb 
 522; Livingston v. Ten Broeck, 16 Johns. 14; Van Rensselaer y. Radcliff^ 
 10 Wend. 639 ; Worcester v. Green, 2 Pick. 429.) 
 
 * The subject of ways constitutes a branch of the law of easementt. 
 
OF INCORPOREAL HEREDITAMENTS. 231 
 
 speak not here of the king's highways, which lead from town to 
 town ; nor yet of common ways, leading from a village into the 
 fields ; but of private ways, in which a particular man may have 
 
 which is a very important topic in the law of real estate. As this is the only 
 variety of easement considered by Blackstone, the following extract from 
 Broom and Hadley's Commentaries, upon this general topic, will be of inter- 
 est and value to the student. (Their statements are supplemented by a few 
 additional remarks, which are enclosed in brackets) : — 
 
 "When the owner of one tenement, called the dominant tenement, has a 
 right to compel the owner of another, called the servient tenement, to per- 
 mit to be done, or refrain from doing, something which, as owner of his 
 tenement, he would otjjerwise have been entitled to restrain or to do 
 respectively, such a right is called an easement. * * * In order to 
 constitute a valid easement of a kind which the law recognizes, there must 
 exist the two tenements, the dominant and the servient; and besides this, 
 there are other conditions which must be observed. An easement must be 
 limited in extent, and must be in some way for the benefit of the alleged 
 dominant tenement, and not for some general benefit of its owner. Thus, a 
 claim to discharge the foul water of a mill into an adjoining broolc, may be a 
 good easement appurtenant to the mill, but a claim by the owner of a house 
 to discharge foul water, siinpliciter, could not be claimed as an easement ap- 
 purtenant to the house. Such claims, if made at all, must be supported by 
 a title deduced in a regular way, from a grant to a person and his heirs ; 
 they would not pass as appurtenances of any alleged dominant tenement, or 
 under any deed, unless expressly conveyed. 
 
 "Among the principal easements which have the sanction of time, and are 
 allowed by law, are the following : The right to water, the right of way, tlie 
 right to the natural support of land, the right [in some cases] to the support 
 of buildings by adjacent land, and, in some exceptional instances, to such 
 support by adjacent buildings, the right to have party-walls and fences kept 
 in repair, etc. * * 
 
 '• Easements are [generally] created by grant from the owner of the servient 
 to the owner of the dominant tenement, express, implied, or presumed by law, 
 [as in cases of prescription,] or by reservation, express or implied, out of a 
 grant of the servient tenement. Express grants or reservations must be by 
 deed, in order to create a legal right to the easement, though equity will, 
 wliere valuable consideration has been given, and great injustice would other 
 wise ensue, interfere and protect the enjoyment of the easement. (See 
 Powell V. Thomas, 6 Hare, 300.) An easement is created by an implied 
 grant in cases where the two tenements, being held by one owner, are dealt 
 with by him so as to sever in part the inheritance, and when the intention of 
 the parties would be frustrated, unless the easement were granted. [See 
 Butterworth v. Crawford, 46 N. Y. 349; 43 N. J. Eq. 62; 81 N. Y. 557.] 
 Thus, if a man sells and conveys a piece of land surrounded by another 
 belonging to himself, by implication he grants also a right of way over his 
 own land to that sold. The law implies that, by such a grant to a purchaser. 
 'that also is granted without which the thing itself cannot be enjoyed ; ' so 
 
212 OF INCORPOREAL HEREDITAMENTS. 
 
 in interest and a right, though another be owner of the soiL 
 This may be granted on a special permission; as when the 
 owner of tJie land grants to another the liberty of passing over 
 
 when mines or trees are sold, the power of entry to dig shafts, or carry awa/ 
 the timber, is by implication granted. [See N. Y. Life Ins. Co. v. Milnor. \ 
 Barb. Ch. 353.] For a similar reason, an easement may by implicatitn be 
 reserved to a vendor or grantor of the servient tenement. Thus, if a man 
 excepts out of a grant all mines and minerals, lie excepts also the right of 
 going upon the land, and making shafts and erecting engines. » * « a 
 distinction is also taken between those easements which are apparent and 
 continuous, and those which are discontinttous, the construction of a grant 
 Lieing more readily extended, so as to create, by implication of grant or reser- 
 vation, the former than the latter. As an example of the former kind, we 
 may mention the right to light and air across another's premises,* and of the 
 latter, the right to use a pump. [The exact distinction between continuous 
 and discontinuous easements, is this : " Continuous are those of which the en- 
 joyment is, or may be continual,without the necessity of any actual interference 
 by man. Discontinuous are those, the enjoyment of which can be had only by 
 the interference of man, as rights of way, or a right to draw water." {Lamp- 
 man V. Milks, 21 N. Y. 505.)] 
 
 [We wiU consider now the different kinds of easements :] First, as 
 to the right of water. — Of this right there are two kinds ; one where 
 the water flows in a natural course, and the other where it flows through 
 an artificial drain or canal. The former kind stands upon a somewhat 
 different footing from the majority of easements. Every proprietor must 
 necessarily have been in long enjoyment, and is entitled to have the full 
 benefit of it in the state in which it exists naturally, uncontaminated, and 
 substantially undiminished in quantity by the acts of the owners of the land 
 from which it flows. [See Clittton v. Myers, 46 N. Y. 511 ; 137 Mass. 163; 
 jy Me. 297.] He may apply it to any purpose he pleases, by way of reason- 
 able enjoyment, so that he does not substantially injure the quantity or 
 quality of that which flows onward to the lands of others. The right, how- 
 ever, exists only in reference to water flowing on the surface, and not to any 
 underground flow of water. An owner of land, in which there is a well sup- 
 plied by a subterranean flow of water [without any defined channel], cannot 
 complain of bis well being drained through the operations of a neighboring 
 mine owner, [See Village of Delhi v. Yownans, 45 N. Y. 362.] 
 
 " The other case of a right of water is where a stream of water runs 
 through an artificial course. This right may be subdivided into two sorts, 
 the right to receive and the right to discharge the water. The latter is the 
 one more easily acquired otherwise than by contract; because, if a man 
 makes an artificial watgr-eourse upon his own lands, presumably it is for his 
 own benefit and not that of a neighbor, and he cannot be compelled to con- 
 
 * The English doctrine, that a right to fhe unobstructed pqssage of light and air over adjacent 
 preini^es of another owner,. may be gained by continuous enjoyment of such a privilege for the period 
 of prescription (usually 20 years) has bean generally rejected in this country. This is known as the 
 doctrine of '* ancient lights." But such a right may be gained by express grant. (See Myers v. 
 Gemmfl, 19 Barb- 537; M§9 64 1!}. Y- 433,) 
 
OF INCORPOREAL HEREDITAMENTS. 233 
 
 his grounds, to go to church, to market, or the like : in which 
 case the gift or grant is particular, and confined to the grantee 
 alone : it dies with the person ; and, if the grantee leaves the 
 
 tinue it after it ceases to be beneficial to him. On the other hand, if he 
 Bjakes a water-course for his own purposes, which runs into his neighbor's 
 land, he is obviously doing that which is an infringement of his neighbor's 
 property. This infringement may, by prescription, at length be legalized, so 
 as to become a right over that land, if suffered to continue without interrui> 
 tion, though, of course, until then his neighbor may at any time block up the 
 water-course, and so put an end to the infringement. [A party acquires a 
 right to the use of water in a particular manner, by an uninterrupted adverse en- 
 joyment of such use during 20 years. {Townsendy. McDonald, 12 N. Y. 381.)] 
 " The right of way is'the right of going over another man's ground. It 
 may be divided into several kinds, according to the limitation which may 
 govern the enjoyment. Thus, it may be limited to passage on foot, or on 
 horseback, or it niay be limited to particular kinds of vehicles, and for special 
 purposes. Like other easements, it is limited to the requirements of the 
 dominant tenement to the ownership of which it is appendant, and the use 
 of such owner and his servants and agents, will regulate the right in those 
 cases where an express grant cannot be produced. [When land con- 
 veyed is surrounded wholly by other land of the grantor, or partly by the 
 grantor's land and partly by that of strangers, the right of way which the 
 grantee has over such adjacent premises of the grantor is called " a way of 
 necessity." (136 Mass. 575 ; 51 Conn. 70; 71 Cal. 62.) But if there is any 
 other means of access to the land granted, which may be rightfully used, a 
 way of necessity will not arise. And when the necessity ceases, as if a new 
 right of way is acquired, the way of necessity ceases. {N. Y. Ins. Co. v. Mil- 
 nor, I Barb. Ch. 353, 363.) As a general rule, the person entitled to the 
 right of way is bound to make all necessary repairs, though the owner of the 
 servient estate may be placed under this obligation by agreement on his part, 
 or by prescription. {Doane v. Badger, 12 Mass. 65.) The grantee of a right 
 of way to one piece of land cannot make use of it to pass into another adja- 
 cent piece. {French v. Marstin, 24 N. H. 440; see 15 R. I. 166.)] 
 
 " The right of lateral sttpport to land by the adjacent land of a different 
 owner, is an easement which exists as a natural accessory of the soil, and 
 may be extended to a house, if properly acquired. If a man digs upon his 
 own ground to such an extent that the land of his neighbor falls, he is liable 
 to an action or a suit in equity to restrain him." [But there is no right of 
 support for buildings erected on adjacent premises, unless they have stood 
 twenty years, so that such a right iias been gained by prescription ; and if 
 they have stood a shorter period, and fall by reason of excavations carefully 
 conducted on adjoining property, there is no remedy! ( Thurston v. Hancock, 
 12 Mass. 226; Farrand v. Marshall, 21 Barb. 409; Lasala v. Holbrook, 
 4 Paige, 169 ; Johnson v. Oppenheim, 55 N. Y. 280, 285 ; s. P. 99 U. S. 635.)] 
 
 [One other important easement deserves mention, viz., that of party 
 walls. A party wall is a wall between adjacent buildings with a right of sup- 
 port therein, as an easement, for the timbers of such buildings. It usually 
 
234 OF INCORPOREAL HEREDITAMENTS. 
 
 country, he cannot assign over his right to any other ; nor can 
 *36] he justify taking another *person in his company. A way 
 may be also by prescription ; as if all the inhabitants of such a 
 hamlet, or all the owners and occupiers of such a farm, have im- 
 memorially used to cross such a ground for such a particular pur- 
 pose : for this immemorial usage supposes an original grant, 
 whereby a right of way thus appurtenant to land or houses may 
 clearly be created. A right of way may also arise by act and 
 operation of law : for, if a man grants me a piece of ground in 
 the middle of his field, he at the same time tacitly and impliedly 
 gives me a way to come to it ; and I may cross his land for that 
 purpose without trespass. For when the law doth give any thing 
 to one, it giveth impliedly whatsoever is necessar)"^ for enjoying 
 the same. By the law of the twelve tables at Rome, where a 
 man had the right of way over another's land, and the road was 
 out of repair, he who had the right of way might go over any part 
 of the land he pleased : which was the established rule in public 
 as well as private ways. And the law of England, in both cases, 
 seems to correspond with the Roman. ^ 
 
 III. (VII.) Franchises are a seventh species. Franchise and 
 liberty are used as synonymous terms ; and their definition is a 
 royal privilege, or branch of the king's prerogative, subsisting in 
 the hands of a subject. Being therefore derived from the crown, 
 they must arise from the king's grant ; or in some cases may be 
 held by prescription, which, as has been frequently said, presup- 
 
 stands upon the dividing line between tiie two lots, but may stand wholly 
 upon one of the lots and at one side of the line. (Brown v. Otto, 40 Md. 
 15.) The easement in party walls may be created by express or implied grant, 
 prescription, etc. (See Partridge v. Gilbert, 15 N. Y. 601 ; also 50 N. Y. 
 639 and 646 ; 90 N. Y. 663 ; 121 Mass. 457 ; 8l Pa. St. 54.)] 
 
 [An easement may be destroyed or extinguished in various ways : as, by 
 release to the owner of the servient tenement ; by abandonment, as where the 
 person entitled to the easement gives a license to erect an obstruction incon- 
 sistent with its enjoyment {Cartwright v. Maplesden, 53 N. Y. 622) ; by non- 
 user for 20 years of an easement obtained by prescription ; by merger, as where 
 the dominant and servient estates become vested in the same person, etc.] 
 
 ^ This statement needs modification. The person entitled to the right of 
 way is strictly confined to this way, and must use it only for the purposes 
 specified in the grant, reservation, etc. If it be out of repair, he may not pass 
 over the adjacent land, unless the owner thereof is under obligation to make 
 the necessary repairs or has obstructed the way ; but then, it seems, he may 
 do so. (See 59 N. H. 7 ; 126 Mass. 445.) 
 
OF INCORPOREAL HEREDITAMENTS. 235 
 
 poses a grant. The kinds of them are various, and ahnost 
 infinite : I will here briefly touch upon some of the principal ; 
 premising only, that they may be vested in either natural persons 
 or bodies politic ; in one man or in many ; but the same identical 
 franchise, that has before been granted to one, cannot be be- 
 stowed on another, for that would prejudice the former grant. 
 
 To be a county palatine is a franchise, vested in a number of 
 persons. It is likewise a franchise, for a number of persons to 
 be incorporated, and subsist as a body politic ; with a power to 
 maintain perpetual succession, and do other corporate acts : and 
 each individual member of such corporation is also said to have 
 a franchise or freedom. Other franchises are, to hold a court 
 leet : to have a manor or lordship ; or, at least, to have a lord- 
 ship paramount : to have waifs, wrecks, estrays, treasure-trove, 
 royal fish, forfeitures, and deodands : to have a court of one's 
 own, or liberty of holding pleas, and trying causes : to have the 
 cognizance of pleas ; which is a still greater liberty, being an 
 exclusive right, so that no other court shall try causes arising 
 within that jurisdiction : to have a bailiwick, or liberty, exempt 
 from the sheriff of the county ; *wherein the grantee only, [*38 
 and his officers, are to execute all process : to have a fair or 
 market ; with the right of taking toll, either there or at any other 
 public places, as at bridges, wharfs, or the like ; which tolls must 
 have a reasonable cause of commencement (as in consideration 
 of repairs or the like), else the franchise is illegal and void : or 
 lastly, to have a forest, chase, park, warren, or fishery, endowed 
 with privileges of royalty which species of franchise may require 
 a more minute discussion.' 
 
 8 Franchises may be defined as special privileges, conferred by government 
 on individuals or corporations, which do not belong to the citizens of tlie 
 country generally by common right. In the United States, franchises are not 
 so numerous as in England. The most common are, the right to build and 
 maintain ferries, bridges, turn-pike roads, railroads, and the right to be a cor- 
 poration. These privileges are granted by legislative act, though, in rare in- 
 stances, they are acquired by prescription. The act of the legislature, confer- 
 ring such privileges, constitutes a contract with the parties endowed therewith, 
 and cannot be repealed or materially amended by subsequent legislation, unless 
 the right to do so has been properly reserved to the legislature. The franchise 
 constitutes a valuable right of property, which, like other property, cannot be 
 taken, destroyed, or extinguished by the legislature for the construction of 
 public works, or the conferment of other franchises upon different parties, 
 unless appropriate compensation be paid for the rights of property thus 
 
236 OF INCORPOREAL HEREDITAMENTS. 
 
 As to z forest ; this, in the hands of a subject, is properly the 
 same thing with a chase ; being subject to the common law, and 
 not to the forest laws. But a chase differs from a park, in that it 
 is not enclosed, and also in that a man may have a chase in 
 another man's ground as well as in his own, being indeed the 
 liberty of keeping beasts of chase or royal game therein, pro- 
 tected even from the owner of the land, with a power of hunting 
 them thereon. A park is an enclosed chase, extending only over 
 a man's own grounds. The -word f ark indeed properly signifies 
 an enclosure ; but yet it is not every field or common, which a 
 gentleman pleases to surround with a wall or paling, and to stock 
 with a herd of deer, that is thereby constituted a legal park : for 
 the king's grant, or at least immemorial prescription, is neces- 
 sary to make it so. Though now the difference between a real 
 park, and such enclosed grounds, is in many respects not very 
 material : only that it is unlawful at common law for any person 
 to kill any beasts of park or chase, except such as possess these 
 franchises of forest, chase, or park. Free warren is a similar 
 franchise, erected for preservation or custody (which the word 
 
 destroyed, or made valueless. This would be an exercise of the right of 
 eminent domain. An instance of this would be the grant of authority to a 
 bridge company to so erect the bridge as to occupy the place of a former 
 ferry ; or, the giving of authority to a railroad corporation to take a bridge 
 which had been erected, under legislative grant, for the construction of the 
 railroad. In all such cases, compensation must be awarded. {Central Bridge 
 Co. v. Lowell, 4 Gray, 474 ; Matter of Kerr, 42 Barb. 119.) But this prin- 
 ciple does not restrict the legislature from granting or creating new fran- 
 chises, which only indirectly and consequentially impair the value of those 
 previously granted ; as if power be granted to a company to construct a bridge 
 so near another erected under a former franchise, as to divert travel there- 
 from, and thus diminish its value. But even in such cases if, in the grant of 
 the previous franchise, it had been provided that such subsequent franchises 
 should not be granted, this provision would form an essential ingredient in 
 the contract, and could not therefore be violated, unless repeal or amendment 
 in any form were authorized by law. (Charles River Bridge Co. v. Warren 
 Bridge Co. 7 Pick, 344; 11 Peters [U. S.], 420; Fort Plain Bridge v. 
 Smith, 30 N. Y. 44.) 
 
 This legal use of the word "franchise," must not be confounded with the 
 political sense of the term, denoting the right to vote at a public election. A 
 franchise in law is an interest in the nature of real property, an incorporeal 
 hereditament. As, however, in this country, at least, franchises are almost 
 invariably vested in corporations, questions in regard to their heritable quality 
 do not arise. 
 
OF INCORPOREAL HEREDITAMENTS. 237 
 
 signifies) of beasts and fowls of warren ; which being fera na- 
 ture, every one had a right to kill as he could ; but upon *the [*39 
 introduction of the forest laws, -ot the Norman Conquest, as will 
 be shown hereafter, these animals being looked upon, as royal 
 game and the sole property of our savage monarchs, this franchise 
 of free-warren was invented to protect them ; by giving the 
 grantee a sole and exclusive power of killing such game so far 
 as his warren extended, on condition of his preventing other 
 persons. A man therefore that has the franchise of warren, is 
 in reality no more than a royal gamekeeper ; but no man, not 
 even a lord of a manor, could by common law justify sporting 
 on another's soil, or even on his own, unless he had the liberty 
 of free-warren. This franchise is almost fallen into disregard, 
 since the new statutes for preserving the game, the name being 
 now chiefly preserved in grounds that are set apart for breeding 
 hares and rabbits. There are many instances of keen sportsmen 
 m ancient times who have sold their estates, and reserved the 
 free-warren, or right of killing game, to themselves ; by which 
 means it comes to pass that a man and his heirs have sometimes 
 free-warren over another's ground. A free fishery, or exclusive 
 right of fishing in a public river, is also a royal franchise ; and is 
 considered as such in all countries where the feudal polity has 
 prevailed ; though the making such grants, and by that means 
 appropriating what seems to be unnatural to restrain, the use of 
 running water, was prohibited for the future by King John's great 
 charter ; and the rivers that were fenced in his time were di- 
 rected to be laid open, as well as the forests to be disafforested. 
 This opening was extended by the second and third charters 
 of Henry III. to those also that were fenced under Richard I. ; 
 so that a franchise of free fishery ought now to be at least as old 
 as the reign of Henry H. This differs from a several fishery ; 
 because he that has a several fishery must also be (or at least 
 derive his right from) the owner cf the soil, which in a free fish- 
 ery is not requisite. It differs also from a common of piscary 
 before mentioned, in that the free fishery is an *exclusive [*40 
 right, the common of piscary is not so : and therefore, in a free 
 fishery, a man has a property in the fish before they are caught, 
 in a common of piscary not till afterwards. Some indeed have 
 considered a free fishery not as a royal franchise, but merely as 
 a private grant of a liberty to fish in the several fishery of the 
 
238 OF INCORPOREAL HEREDITAMENTS. 
 
 grantor. But to consider such right as originally a flower of the 
 prerogative, till restrained by magna charta, and derived by royal 
 grant (previous to the reign of Richard I.) to such as now claim 
 it by prescription, and to distinguish it (as we have done) from 
 a several and a common of fishery, may remove some difficulties 
 in respect to this matter, with which our books are embarrassed. 
 For it must be acknowledged, that the right and distinctions of 
 the three species of fishery are very much confounded in our 
 law-books ; and that there are not wanting respectable authori- 
 ties which maintain that a j^T^^ra/ fishery may exist distinct from 
 the property of the soil, and that ?i.free fishery implies no exclu- 
 sive right, but is synonymous with common of piscary. 
 
 IV (IX.) Annuities are much of the same nature as corodies ; 
 only that they arise from temporal, as the latter from spiritual per- 
 sons. An annuity is a thing very distinct from a rent-charge, with 
 v/hich' it is frequently confounded : a rent-charge being a burthen 
 imposed upon and issuing out of lands, whereas an annuity is a 
 yeai'ly sum chargeable only upon the person of the grantor. 
 Therefore, if a man by deed grant to another the sum of 20/. 
 per annum, without expressing out of what lands it shall issue, 
 no land at all shall be charged with it ; but it is a mere personal 
 annuity ; which is A so little account in the law, that if granted 
 to an eleemosynary corj. oration it is not within the statutes of 
 mortmain ; and yet a r an may have a real estate in it, though 
 his security is merely personal. 
 
 *41] V. (*X.) Rents are the last species of incorporeal here- 
 ditaments. The word rent or render, reditus, signifies a compen- 
 sation or return, it being in the nature of an acknowledgment 
 given for the p^ ssession of some corporeal inheritance. It is 
 defined to be a certain profit issuing yearly out of lands and 
 tenements corporeal. It must be 2^. profit ; yet there is no occa- 
 sion for it to be, as it us uall)' is, a sum of money ; for spurs, 
 capons, hoises, corn, and other matters may be rendered, and 
 frequently are rendered, by way of rent. It may also consist in 
 services or manual operations ; as, to plough so many acres of 
 ground, to attend the kmg or the lord to the wars, and the like ; 
 which services in the eye of the law are profits. This profit 
 must also be cettain ; or that which may be reduced to a cer- 
 tainty by either party. It must also issue _y^«r/c ,• though there 
 Ls no occasion for it to issue every successive year ; but it may 
 
OF INCORPOREAL HEREDITAMENTS. 239 
 
 be reserved every second, third, or fourth year ; yet, as it is to 
 be produced out of the profits of lands and tenements, as a 
 recompense for being permitted to hold or enjoy them, it ought 
 to be reserved yearly, because those profits do annually arise 
 and are annually renewed. It must issue out of the thing grant- 
 tid, and not be part of the land or thing itself ; wherein it differs 
 from an exception in the grant, which is always of part of the 
 thing granted. It must, lastly, issue out of lands and tenements 
 corporeal ; that is, from some inheritance whereunto the owner 
 or grantee of the rent may have recourse to distrain. Therefore 
 a rent cannot be reserved out of an advowson, a common, an 
 ottice, a franchise, or the like. But a grant of such annuity or 
 sum may operate as a personal contract, and oblige the grantor 
 to pay the money reserved, or subject him to an action of debt : 
 though it doth not affect the inheritance, and is no legal rent in 
 contemplation of law. 
 
 There are at common law three manner of rents, rent- 
 service, rent-charge, and rent-seek. Rent-service is so called 
 *because it hath some corporeal service incident to it, as at [*42 
 the least fealty or the feudal oath of fidelity. For, if a tenant 
 holds his land by fealty, and ten shillings rent ; or by the ser- 
 vice of ploughing the lord's land, and five shillings rent ; these 
 pecuniary rents, being connected with personal services, are 
 therefore called rent-service. And for these, in case they be 
 behind, or arrere, at the day appointed, the lord may distrain of 
 common right, without reserving any special power of distress ; 
 provided he hath in himself the reversion, or future estate of the 
 lands and tenements, after the lease or particular estate of the 
 lessee or grantee is expired. A rent-charge is where the owner 
 of the rent hath no future interest, or reversion expectant in the 
 land : as where a man by deed maketh over to others his whole 
 estate in fee-simple, with a certain rent payable thereout, and 
 adds to the deed a covenant or clause of distress, that if the rent 
 be arrere, or behind, it shall be lawful to distrain for the same. 
 In this case the land is liable to the distress, not of common 
 right, but by virtue of the clause in the deed ; and therefore, it is 
 called a rtnt-charge, because in this manner the land is charged 
 with a distress for the payment of it. Rent-seek, reditus siccus, 
 or barren rent, is in effect nothing more than a rent reserved by 
 deed, but without any clause of distress. 
 
240 OF INCORPOREAL HEREDITAMENTS. 
 
 There are also other species of rents, which are reducible to 
 these three. Rents of assize are the certain estiblished rents 
 of the freeholders and ancient copyholders of a manor, which 
 cannot be departed from or varied. Those of the freeholders 
 are frequently called ckief-rents, reditus capitales, and both sorts 
 are indifferently denominated quit-x^nXs., qiiieti reditus : because 
 thereby the tenant goes quit and free of all other ser^'ices. 
 When these payments were reserved in silver or white money, 
 they were anciently called ivAite-rents, blanch-farms, reditus albi; 
 in contradistinction to rents reserved in work, grain, or baser 
 *4c] money, which were called *reditus nigri, or black-mail. 
 Rack-rent is only a rent of the full value of the tenement, or near 
 it. A fee-farm rent is a rent-charge issuing out of an estate in fee; 
 of at least one-fourth of the value of the lands, at the time of its 
 reservation : for a grant of lands, reserving so considerable a 
 rent, is indeed only letting lands to farm ir fee-simple instead 
 of the usual methods for life or years 
 
 These are the general divisions of rents ; but the difference 
 between them (in respect to the remedy for recovering them) is 
 now totally abolished ; and all persons may have the like remedy 
 by distress for rent-seek, rents of assize, and chief-rents, as in 
 case of rents reserved upon lease.' 
 
 Rent is regularly due aud payable upon the land from 
 whence it issues, if no particular place is mentioned in the 
 reservation ; but in case of the king, the payment must be either 
 to his officers at the exchequer, or to his receiver in the country. 
 And strictly the rent is demandable and payable before the 
 lime of sunset of the day whereon it is reserved ; though per- 
 haps not absolutely due till midnight.' 
 
 ^ The remedy by distress for the recovery of rent has been abolished in a 
 nu Tiber of the States in this country. The chief distinction, therefore, be- 
 tween rent-service and rent-charge is that in the former case there is a rever- 
 sion in the property, vested in the person entitled to the rent, while in the lat- 
 ter there is no such reversion. Thus, as between a landlord and tenant for 
 years, the rent would be rent-service ; while if the owner of land in fee 
 should convey it in fee to another, reserving a certain rent as a mode of pay- 
 ment, this would be a rent-charge. (See Faa Rensselaer v. Hays, 19 N.Y. 
 63 ; Van Rensselaer v. Chadwick, 22 N. Y. 33 ; Cruger v. McLaury, 41 N. Y. 
 219, 227, note.) Rents of assize, chief-rents, white-rents, black-rents, etc., are 
 now of little importance. As to rent-charge, see 44 & 45 Vict. c. 41, s. 44. 
 
 ' Tliese common-law rules in regard to the demand and payment of rent 
 
OF THE FEUDAL SYSTEM. 241 
 
 With regard to the original of rents, something will be said 
 in the next chapter ; and, as to distresses and other remedies for 
 their recovery, the doctrine relating thereto, and the several 
 proceedings thereon, these belong properly to the third part of 
 our Commentaries, which will treat of civil injuries, and the 
 means whereby they are redressed. 
 
 CHAPTER IV. 
 
 [bL. COMM. — BOOK II. CH. IV.] 
 
 Of the Feudal System. 
 
 It is impossible to understand, with any degree of accura. , 
 !ither the civil constitution of this kingdom, or the laws which 
 regulate its landed property, without some general acquaintance 
 with the nature and doctrine of feuds, or the feudal law : a sys- 
 tem so universally received throughout Europe upwards of 
 twelve centuries ago, that Sir Henry Spelman does not scruple 
 to call it the law of nations in our western world. This chapter 
 will be therefore dedicated to this inquiry. And though, in the 
 course of our observations in this and many other parts of the 
 present book, we may have occasion to search pretty highly into 
 the antiquities of our English jurisprudence, yet surely no indus- 
 trious student will imagine his time misemployed, when he is led 
 to consider that the obsolete doctrines of our laws are frequently 
 the foundation upon which what remains is erected ; and that it 
 is impracticable to comprehend many rules of the modern law, 
 in a scholar-like scientifical manner, without having recourse to 
 the ancient. Nor will these researches be altogether void of 
 rational entertainment as well as use : in viewing the majestic 
 ruins of Rome or Athens, of Balbec or Palmyra, it administers 
 both pleasure and instruction to compare them with the draught 
 of the same edifices, in their pristine proportion and splendor. 
 *The constitution of feuds had its original from the [*45 
 
 have been in a number of States modified or superseded by statutory pro- 
 visio iS, prescribing other methods. The statutes of any particular State 
 khould he specially consulted. 
 t6 
 
242 OF THE FEUDAL SYSTEM. 
 
 military policy of the northern or Celtic nations, tne Goths, the 
 Huns, the Franks, the Vandals, and the Lombards, who all 
 migrating from the same officina gentium, as Crag very justly 
 entitles it, poured themselves in vast quantities into all the 
 regions of Europe, at the declension of the Roman empire. It 
 was brought by them from their own countries, and continued in 
 their respective colonies as the most likely means to secure 
 their new acquisitions : and to that end, large districts or parcels 
 of land were allotted by the conquering general to the superior 
 officers of the army, and by them dealt out again in smaller 
 parcels or allotments to the inferior officers and most deserving 
 soldiers. These allotments were called _/i?o^a, feuds, fiefs or fees ; 
 which lar.t appellation in the northern language signifies a condi- 
 tional stipend or reward. Rewards or stipends they evidently 
 were : and the condition annexed to them was, that the 
 possessor should do service faithfully, both at home and in 
 the wars, to him by whom they were given ; for which purpose 
 he took \.\\&jiiramentuinfidelitatis, or oath of fealty : and in case 
 of the breach of this condition and oath, by not performing the_ 
 stipulated service, or by deserting the lord in battle, thelancis 
 were again to revert to him who granted them. 
 
 h llotments, thus acquired, naturally engaged such as accepted 
 *46] them to defend them: and, as they all sprang from *the 
 same right of conquest, no part could subsist independent of the 
 whole ; wherefore all givers as well as receivers were mutually 
 bound to defend each other's possessions. But, as that could not 
 effectually be done in a tumultuous irregular way, government, 
 and to that purpose subordination, was necessary. Every 
 receiver of lands, or feudatory, was therefore bound, when called 
 upon by his benefactor, or immediate lord of his feud or fee, to 
 do all in his power to defend him. Such benefactor or lord 
 was likewise subordinate to, and under the command of, his 
 immediate benefactor or superior , and so upwards to the prince 
 or general himself: and the several lords were also reciprocally 
 bound, in their respective gradations, to protect the possessions 
 they had given. Thus the feudal connection was established, a 
 proper military subjection was naturally introduced, and an array 
 of feudatories was always ready enlisted, and mutually prepared 
 to muster, not only in defense of each man's own several property, 
 but also in defense of the whole, and of every part of this their 
 
OF THE FEUDAL S YSTEM. ■ 243 
 
 newly-acquired country ; the produce of which constitution was 
 soon sufficiently visible in the strength and spirit with which they 
 maintained their conquests.^ 
 
 The universality and early use of this feudal plan, among all 
 those nations, which in complaisance to the Romans we still call 
 barbarous, may appear from what is recorded of the Cimbri and 
 Teutones, nations of the same northern original as those whom 
 we have been describing, at their first irruption into Italy about 
 a century before the Christian era. They demanded of the 
 Romans, " ui martius populus aliquid sibi terrce daret, quasi 
 stipendium ; cceterum, ut vellet, manibus atque armis suis utere- 
 tuK' The sense of which may be thus rendered ; they desired 
 stipendiary lands (that is, feuds) to be allowed them, to be held 
 
 1 Mr. Hallam and various other writers have given a somewhat different 
 account of the origin of the feudal system. This may be briefly summarized 
 as follows : The feudal system had its origin in the conditions under which 
 society existed and land was held under the barbaric conquerors, the Franks, 
 who, with Clovis and his successors, the Merovingian and Carlovingian 
 monarchs at their head, overspread Europe. The lands so acquired by the 
 Franks were termed allodial, a description, which in later times, was opposed 
 to feudal or beneficiary, meaning that they were possessed in absolute owner- 
 ship, subject to no burden, except the performance of the universal duty of 
 public defense. They passed to the children equally, or, on failure of chil- 
 dren, to the nearest kindred. From this descendible quality, the word 
 " allodial " was afterwards not un.;ommonly used synonymously with herit- 
 able. In the general distribution of lands, moreover, a very considerable 
 share was reserved for the maintenance of the dignity of the Crown. These 
 lands, called the fiscal lands, were dispersed over different parts of the 
 kingdom, and formed the only regular source of revenue which in those times 
 the sovereigns possessed. Afterwards, these demesne lands of the Crowr., or 
 the iisc, were granted under the title of benefices to favored subjects, or sub- 
 jects whose fidelity it was of impo;tance to secure, upon conditions creating 
 a close relationship between the grantee and his lord. Originally they were 
 in general granted only for life, but in very early times they became hered- 
 itary. Of these conditions, there can be little doubt that an oath of fidelity 
 and the render of military service, constituted the most important. When 
 grants from the Crown made in this manner became common, there naturally 
 arose the custom of the great lords who owned large territories granting 
 portions of their land to others, to be held of themselves upon a like species 
 of tenure. This was called sub-infeudation, and at a later period became 
 universal. " Out of these ancient grants, now become for the most part 
 hereditary, these grew up in the tenth century, both in name and reality, the 
 system of feudal tenures." (Broom & H. Comm., ii. 119, 120 ; see Hallam'n 
 Middle Ages, i. 16'.) 
 
244 ■ OF THE FEUDAL SYSTEM. 
 
 by military and other personal services, whenever their lord 
 should call upon them. This was evidently the same constitu- 
 tion that displayed itself more fully about seven hundred years 
 afterwards ; when the Salii, Burgundians and Franks broke in 
 *47] upon Gaul, the Visigoths on *Spain, and the Lombards upon 
 Italy; and introduced with themselves this northern plan of 
 polity, serving at once to distribute and to protect the territories 
 they had newly gained. And from hence too it is probable that 
 the Emperor Alexander Severus took the hint of dividing lands 
 conquered from the enemy among his generals and victorious 
 soldiery, duly stocked with cattle and bondmen, on condition of 
 receiving military service from them and their heirs for ever. 
 
 Scarce had these northern conquerors established themselves 
 in their new dominions, when the wisdom of their constitutions, 
 as well as their personal valor, alarmed all the princes of Europe, 
 that is, of those countries which had formerly been Roman prov- 
 inces, but had revolted, o^ were deserted by their old masters, 
 in the general wreck of the empire. Wherefore most, if not all, 
 of them thought it necessary to enter into the same or a similar 
 plan of policy. For whereas, before, the possessions of theirsub- 
 jects were perfectly allodial (that is, wholly independent, and 
 held of no superior at all), now they parcelled out their royal terri- 
 tories, or persuaded their subjects to surrender up and retake 
 their own landed property, under the like feudal' obligations of 
 military fealty. And thus, in the compass of a very few years, 
 the feudal constitution, or the doctrine of tenure, extended itself 
 over all the western world. Which alteration of landed prop- 
 erty, in so very material a point, necessarily drew after it an al- 
 teration of laws and customs : so that the feudal laws soon drove 
 out the Roman, which had hitherto so universally obtained, but 
 now became for many centuries lost and forgotten ; and Italy it 
 self (as some of the civilians, with more spleen than judgment, 
 have expressed it ) belluinas, atque ferinas, immanesque Longo- 
 bardorum leges accepit. 
 
 ♦48] *But this feudal polity, which was thus by deg-ees es- 
 tablished over all the continent of Europe, seems not to have 
 been received in this part of our island, at least not universally, 
 and as a part of the national constitution, till the reign of William 
 the Norman. Not but that it is reasonable to believe, from 
 abundant tracei; i -^ our history and laws, that even in the time of 
 
OF THE FEUDAL SYSTEM. 245 
 
 the Saxons, who were a swarm from what Sir William Temple 
 calls the same northern hive, something similar to this was in use; 
 yet notsoextensively, nor attended with all the rigor that «vas after- 
 wards imported by the Normans. For the Saxons were firmly 
 settled in this island, at least as early as the year 600 : and it 
 was not till two centuries after, that feuds arrived at their full 
 vigor and maturity, even on the continent of Europe. 
 
 This introduction, however, of the feudal tenures into England, 
 by King William, does not seem to have been effected immedi- 
 ately after the Conquest, nor by the mere arbitrary will and power 
 of the conqueror ; but to have been gradually established by the 
 Norman barons, and others, in such forfeited lands as they re- 
 ceived from the gift of the conqueror, and afterwards universally 
 consented to by the great council of the nation, long after his 
 title was established. Indeed, from the prodigious slaughter of 
 the English nobility at the battle of Hastings, and the fruitless 
 insurrections of those who survived, such numerous forfeitures 
 had accrued, that he was able to reward his Norman followers 
 with very large and extensive possessions : which gave a handle 
 to the monkish historians, and such as have implicitly followed 
 them, to represent him as having by right of the sword seized on 
 all the lands of England, and dealt them out again to his own 
 favorites. A supposition, grounded upon a mistaken sense of 
 the word conquest ; which in its feudal acceptation, signifies no 
 more than acquisition ; and this has led many hasty writers into 
 a strange historical mistake, and one which, upon the slightest 
 examination, will *be found to be most untrue. Howevei", [*49 
 certain it is, that the Normans now began to gain very large pos 
 sessions in England ; and their regard for the feudal law under 
 which they had long lived,, together with the king's recommen- 
 dation of this policy to the English, as the best way to put them- 
 sehes on a military footing, and thereby to prevent any future 
 attempts from the continent, were probably the reasons that pre- 
 vailed to effect its establishment here by law. And, though the 
 time of this great revolution in our landed property cannot be 
 ascertained with exactness, yet there are some circumstances 
 that may lead us to a probable conjecture concerning it. For we 
 learn from the Saxon chronicle, that in the nineteenth year of 
 King William's reign an invasion was apprehended from Denmark ; 
 and the military constitution of the Saxons being then laid aside, 
 
246 OF THE FEUDAL SYSTEM. 
 
 and 110 other introduced in its stead, the kingdom was wholly 
 defenceless ; which occasioned the king to bring over a large 
 army of Normans and Bretons, who were quartered upon every 
 landholder, and greatly oppressed the people. This appar-tnt 
 weakness, together with the grievances 'occasioned by a foreign 
 force, might co-operate with the king's remonstrances, and the 
 better incline the nobility to listen to his proposals for putting 
 them in a posture of defence. For as soon as the danger was 
 over, the king held a great council to inquire into the state of the 
 nation : the immediate conseauence of which was the compiling of 
 the great survey called domesday-book, which was finished in the 
 next year : and in the latter end of that very year the king was 
 attended by all his nobility at Sarum ; where all the principal 
 landholders submitted their lands to the yoke of military tenure, 
 became the king's vassals, and did homage and fealty to his per- 
 son. This may possibly have been the era of formally intro- 
 ducing the feudal tenures by law ; and perhaps the very law, 
 thus made at the council of Sarum, is that which is still extant, 
 *50] *and couched in these remarkable words : " Statuimus, ut 
 omnes liberi homines foedere et sacramento affirment, quod intra ei 
 extra universum. regnum Angliiz Wilhelmo regi domino suofideles 
 esse volunt ; terras et honores illius omni fidelitate ubique servare 
 cum eo, et contra inimicos et alienigenas defendere" The terms 
 of this law (as Sir Martin Wright has observed ) are plainly feu- 
 dal : for, first, it requires the oath of fealty, which made, in the 
 sense of the feudists, every man that took it a tenant or vassal : 
 and, secondly, the tenants obliged themselves to defend their lord's 
 territories and titles against all enemies foreign and domestic. 
 But what clearly evinces the legal establishment of this system, 
 is another law of the same collection, which exacts the perform^ 
 ance of the military feudal services, as ordained by the general 
 council. " Omnes comites, et baroncs, et milites, et servientes, ei 
 universi liberi homines totius regni nostri prcedicti, habeant et ten- 
 eant se semper bene in artnis et in equis, ut decet et oportet: et 
 sint semper prompti et bene parati, ad servitium suum integnim 
 nobis explendum et peragendum, cum opus fuerit: secundum 
 quod nobis debent de feodis et tenementis suis de jure facere, 
 et sicut illis statuimus per comm^une concilium totius regni ncstri 
 prcedicti!' 
 
 This new polity seems therefore not to have been imposed by 
 
OF THE FEUDAL SYSTEM. 247 
 
 the conqueror, but nationally and freely adopted by the general 
 assembly of the whole realm, in the same manner as other 
 nations of Europe had before adopted it, upon the same principle 
 of self-security. And, in particular, they had the recent exampl': 
 of the French nation before their eyes ; which had gradually 
 surrendered up all its allodial or free lands into the king's hands, 
 who restored them to the owners as a beneficium or feud, to be 
 held to them and such of their heirs as they previously nominatfed 
 to the king : and thus by degrees all the allodial estates in France 
 were converted into feuds, and the freemen became the vassals 
 of the crown. The ojily difference between this change of tenures 
 in France, and that in England, was, that the former ^as effected 
 gradually * by the consent of private persons : the latter was [*51 
 done at once, all over England, by the common consent of this 
 nation. 
 
 In consequence of this change, it became a fundamental 
 maxim and necessary principle (though in reality a mere fiction) 
 of our English tenures, " that the king is the unive'-'al lord and 
 original proprietor of all the lands in his kingdom : and that no 
 man doth or caa possess any part of it, but what has mediately 
 or immediately been derived as a gift from him, to be held upou 
 feudal services." For this being the real case in pure, original, 
 proper feuds, other nations who adopted this system were obliged 
 to act upon the same supposition, as a substruction and founda- 
 tion of their new polity, thought the fact was indeed far other- 
 wise. And indeed, by thus consenting to the introduction of 
 feudal tenures, our English ancestors probably meant no more 
 than to put the kingdom in a state of defense by establishing a 
 military system ; and to oblige themselves (in respect of their 
 lands) to maintain the king s title and territories, with equal 
 vigor and fealty, as if they had received their lands from his 
 bounty upon these express conditions, as pure, proper, beneficiary 
 feudatories. But whatever their meaning was, the Nc-m'i.i 
 interpreters, skilled in all the niceties of the feudal constitutions, 
 and well understanding the import and extent of the feudal terms, 
 gave a very different construction to this proceeding ; and there- 
 upon took a handle to introduce not only the rigorous doctrines 
 which prevailed in the duchy of Normandy, but also such fruits 
 and dependencies, such hardships and services, as were never 
 known to other nations ; as if the English had, in fact as well a.<i 
 
248 OF THE FEUDAL SYSTEM. 
 
 theory, owed every thing they had to the bounty of their sove- 
 reign lord. 
 
 Our ancestors, therefore, who were by no means beneficiaries, 
 *52] but had barely consented to this fiction of tenure from *the 
 crown, as the basis of a military discipline, with reason looked upon 
 these deductions as grievous impositions, and arbitrary conclu- 
 sions from principles that, as to them, had no foundation in truth. 
 However, this king and his son William Rufus kept up with a 
 high hand all the rigors of the feudal doctrines : but their suc- 
 cessor, Henry I. found it expedient, when he set up his preten- 
 sions to the crown, to promise a restitution of the laws of king 
 Edward the Confessor, or ancient Saxon system ; and according- 
 ly, in the first year of his reign, granted a charter, whereby he 
 gave up the greater grievances, but still reserved the fiction of 
 feudal tenure, for the same military purposes which engaged his 
 father to introduce it. But this charter was gradually broken 
 through, and the former grievances were revived and aggravated, 
 by himself and succeeding princes ; till in the reign of King John 
 they became so intolerable, that they occasioned his barons, or 
 principal feudatories, to rise up in arms against him ; which at 
 length produced the famous great charter at Runing-mead, which 
 with some alterations, was confirmed by his son Henry HI. And 
 though its immunities (especially as altered on its last edition 
 by his son) are very greatly short of those granted by Henry I., 
 it was justly esteemed at the time a vast acquisition to English 
 liberty. Indeed, by the farther alteration of tenures that has 
 since happened, many of these immunities may now appear, to a 
 common observer, of much less consequence than they really 
 were when granted : but this, properly considered, will show, not 
 that the acquisitions under John were small, but that those under 
 Charles were greater. And from hence also arises another infer- 
 ence ; that the liberties of Englishmen are not (as some arbitrary 
 writers would represent them) mere infringements of the king's 
 prerogative, extorted from our princes by taking advantage of 
 Iheir weakness ; but a restoration of that ancient constitution, 
 of which our ancestors had been defrauded by the art and finesse 
 of the Norman lawyers, rather than deprived by the force of tbe 
 Norman arrns. 
 
 *5S] *Having given this short history ot their rise and progress, 
 we will next consider the nature, doctrine, and principal laws of 
 
OF THE FEUDAL SYSTEM. 249 
 
 feuds ', wherein we shall evidently trace the groundwork of many 
 parts of our public polity, and also the original of such of our own 
 tenures as were either abolished in the last century, or stili 
 remain in force. 
 
 The grand and fundamental maxim of all feudal tenure is] 
 this : that all lands were originally granted out by the sovereign, 
 and are therefore holden, either mediately or immediately, of the 
 crown. The grantor was called the proprietor, or lord: being 
 he who retained the dominion or ultimate property of the feud or 
 fee ; and the grantee, who had only the use and possession, ac- 
 cording to the term§ of the grant, was styled the feudatory, or 
 vassal, which was only another name for the tenant, or holder of 
 the lands ; though, on account of the prejudices which we have 
 justly conceived against the doctrines that were afterwards ^ra/i^- 
 ed on this system, we now use the word vassal opprobriously, as 
 synonymous to slave or bondman. The manner of the grant 
 was by words of gratuitous and pure donation, dedi et concessi ; 
 which are still the operative words in our modern infeudations 
 or deeds of feoffment. This was perfected by the ceremony of 
 corporeal investiture, or open and notorious delivery of possession 
 in the presence of the other vassals : which perpetuated among 
 them the era of the new acquisition, at a time when the art of 
 writing was very little known ; and therefore the evidence of 
 property was reposed in the memory of the neighborhood ; 
 who, in case of a disputed title, were afterwards called upon to 
 decide the difference, not only according to external proofs, ad- 
 duced by the parties litigant, but also by the internal testimony 
 of their own private knowledge. 
 
 Besides an oath of fealty, or profession of faith to the lord, 
 which was the parent of our oath of allegiance, the vassal or 
 tenant upon investiture did usually homage to his lord ; openly 
 and humbly kneeling, being ungirt, uncovered, *and holding [*54 
 up his hands both together between those of the lord, who sat 
 before him ; and there professing, that " he did become his man, 
 from that day forth, of life and limb and earthly honor : " and 
 then he received a kiss from his lord. Which ceremony was de- 
 nominated homagium, or manhood, by the feudists, from the stated 
 form of words, devenio vester homo. 
 
 When the tenant had thus professed himself to be the man 
 of his superic ' or lord, the next consideration was concerning 
 
250 OF THE FEUDAL SYSTEM. 
 
 the service, which as such, he was bound to render, in teconv- 
 pense .for the land that he held. This, in pure, proper, and 
 original feuds, was only two-fold ; to follow, or do suit to, the 
 lord in his courts in time of peace ; and in his armies or war- 
 like retinue, when necessity called him to the field. The lord 
 was, in early times, the legislator and judge over all his feuda- 
 tories : and therefore the vassals of the inferior lords were bound 
 by their fealty to attend their domestic courts baron (which were 
 instituted in every manor or barony for doing speedy and effect- 
 ual justice to all the tenants), in order as well to answer such 
 complaints as might be alleged against themselves, as to form a 
 jury or homage for the trial of their fellow-tenants ; and upon 
 this account, in all the feudal institutions both here and on the 
 continent, they are distinguished, by the appellation of the peers 
 of the court ; pares curtis, or pares curies. In like manner the 
 barons themselves, or lords of inferior districts, were denominated 
 peers of the king's court, and were bound to attend him upon 
 summons, to hear causes of greater consequence in the king's 
 presence, and under the direction of his grand justiciary, till in 
 many countries the power of that officer was broken and dis- 
 tributed into other courts of judicature, the peers of the king's 
 *55] court still reserving to themselves (in *almost every feudal 
 government) the right of appeal from those subordinate courts in 
 the last resort. The military branch of service consisted in 
 attending the lord to the wars, if called upon, with such a retinue 
 and for such a number of days, as were stipulated at the first do- 
 nation, in proportion to the quantity of the land. 
 
 At the first introduction of feuds, as they were gratuitous, so 
 also they were precarious, and held at the will of the lord, who 
 was then the sole judge whether his vassal performed his service.'! 
 faithfully. Then they became certain for one or more years. 
 Among the ancient Germans they continued only fiom year to 
 year ; an annual distribution of lands being made by their leaders 
 in their general councils or assemblies. This was professedly 
 done lest their thoughts should be diverted from war to agricul- 
 ture, lest the strong should encroach upon the possessions of the 
 weak, and lest luxury and avarice should be encouraged by the 
 erection of permanent houses, and too curious an attention to 
 convenience and the elegant superfluities of life. But, wlien the 
 general migration was pretty well over, and a peaceable posses- 
 
OF THE FEUDAL SYSTEM. 251 
 
 sion of the new-acquired settlements had introduced new cuitoms 
 and manners ; when the fertility of the soil had encouraged the 
 study of husbandry, and an affection for the spots they had cul- 
 tivated began naturally to arise in the tillers ; a more permanent 
 degree of property was introduced, and feuds began now to be 
 granted for the life of the feudatory. But still feuds were not 
 yet hereditary, though frequently granted,' by the favor of the 
 lord, to the children of the former possessor ; till in process of 
 time it became unusual, and was therefore thought hard, to reject 
 the heir, if he were capable to perform the services ; and therefore 
 infants, women, and , professed monks, who were incapable of 
 *bearing arms, were also incapable of succeeding to a [*56 
 genuine feud. But the heir, when admitted to the feud which 
 his ancestor possessed, used generally to pay a j^as ^r acknowledg: 
 ment to the lord, in horses, arms, money, and the like, for such 
 renewal of the feud ; which was called a relief, because it raised 
 up and re-established the inheritance, or in the words of the feudal 
 writers, " incertam et caducam hereditatem relevabat." This re- 
 lief was afterwards, when feuds became absolutely hereditary, 
 continued on the death of the tenant, though the original foun- 
 dation of it had ceased. 
 
 For in process of time feuds came by degrees to be univer- 
 sally extended beyond the life of the first vassal, to his sons, or 
 perhaps to such, one of them as the lord should name ; and in 
 this case the form of the donation was strictly observed : for if 
 a feud was given to a man and his sons, all his sons succeeded 
 him in equal portions : and, as they died off, their shares reverted 
 to their lord, and did not descend to their children, or even to 
 their surviving brothers, as not being specified in the donation. 
 But when such a feud was given to a man and his heirs, in 
 general terms, then a more extended rule of succession took 
 place ; and when the feudatory died, his male descendants in 
 infinitum were admitted to the succession. When any such de- 
 scendant, who thus had succeeded, died, his male descendants 
 were also admitted in the first place ; and, in defect of them, 
 such of his male collateral kindred as were of the blood or lineage 
 of the first feudatory, but no others. For this was an unalter- 
 able maxim in feudal succession, that " none was capable of in- 
 heriting a feud, but such as was of the blood of, that is, lineally 
 descended from, the first feudatory." And the descent being 
 
253 OF THE FEUDAL SYSTEM. 
 
 thus coiif-.ned to males, originally extended to all the males alike ; 
 all the sons, without any distinction of primogeniture, succeed- 
 ing to equal portions of the father's feud. But this being found 
 upon many accounts inconvenient (particularly, by dividing the 
 services, and thereby weakening the strength of the feudal 
 union), and honorary feuds (or titles of nobility) being now intro- 
 *57] duced, which were not of *a divisible nature, but could 
 only be inherited by the eldest son ; in imitation of these, mili- 
 tary feuds (or those we are now describing) began also in 
 most countries to descend, according to the same rule of primo- 
 geniture, to the eldest son, in exclusioa of all the rest. 
 
 Other qualities of feuds were, that the feudatory could not 
 alien or dispose of his feud ; neither could he exchange, nor 
 yet mortgage, nor even devise it by will, without the consent of 
 the lord. For the reason of conferring the feud being the per- 
 sonal abilities of the feudatory to serve in war, it was not fit he 
 should be at liberty to transfer this gift, either from himself, or 
 from his posterity who were presumed to inherit his valor, to 
 others who might prove less able. And, as the feudal obligation 
 was looked upon as reciprocal, the feudatory being entitled to 
 the lord's protection, in return for his own fealty and service ; 
 therefore the lord could no more transfer his seignory or pro- 
 tection without consent of his vassal, than the vassal could his 
 feud without consent of his lord : it being equally unreasonable, 
 that the lord should extend his protection to a person to whom 
 he had exceptions, and that the vassal should owe subjection to 
 a superior not of his own choosing. 
 
 These were the principal, and. very simple, qualities of the 
 genuine or original feuds ; which were all of a military nature, 
 and in the hands of military persons ; though the feudatories, 
 being under frequent incapacities of cultivating and manuring 
 their own lands, soon found it necessary to commit part of them 
 to inferior tenants : obliging them to such returns in service, 
 corn, cattle, or money, as might enable the chief feudatories to 
 attend their military duties without distraction : which returns, 
 or reditus, were the original of rents, and by these means, the 
 feudal polity was greatly extended ; these inferior feudatories 
 (who held what are called in the Scots law " rere-fiefs ") being 
 under similar obligations of fealty, to do suit of court, to answer 
 Khe stipulated renders or rent-service, and to promote the wel- 
 
OF THE FEUDAL SYSTEM. 253 
 
 fare of their immediate superiors or lords. *But this at [*58 
 the same time demolished the ancient simplicity of feuds ; and 
 an inroad being once made upon their constitution, it subjected 
 them, in a course ot time, to great varieties and innovations. 
 Feuds began to be bought and sold, and deviations were made 
 from the old fundamental rules of tenure and succession ; which 
 were held no longer sacred, when the feuds themselves no 
 longer continued to be purely military. Hence these tenures 
 began now to be divided into feoda propria et impropria, proper 
 and improper feuds ; under the former of which divisions were 
 comprehended such, and such only, of which we have before 
 spoken ; and under that of improper or derivative feuds were com- 
 prised all such as do not fall within the other descriptions ; such, 
 for instance, as were originally bartered and sold to the feudatory 
 for a price ; such as were held upon base or less honorable ser- 
 vices, or upon a' rent, in lieu of military service; such as were 
 in themselves alienable, without mutual license ; and such as 
 might descend indifferently either to males or females. But, 
 where a difference was not expressed in the creation, such new 
 created feuds did in all respects follow the nature of an original, 
 genuine, and proper feud. 
 
 But as soon as the feudal system came to be considered in 
 the light of a civil establishment, rather than as a military plan, 
 the ingenuity of the same ages, which perplexed all theology 
 with the subtilty of scholastic disquisitions, and bewildered 
 philosophy in the mazes of metaphysical jargon, began also to 
 exert its influence on this copious and fruitful subject : inpursu 
 ance of which, the most refined and oppressive consequences 
 were drawn from what originally was a plan of simplicity and 
 liberty, equally beneficial to both lord and tenant, and prudently 
 calculated for their mutual protection and defence. From this 
 one foundation, in different countries of Europe, very different 
 superstructures have been raised : what effect it has produced 
 on the landed property of England, will appear in the following 
 chapters. 
 
254 OF THE ANCIENT ENGLISH TENURES. 
 
 CHAPTER V. 
 
 [bL. COMM. — BOOK II. CH. V.] 
 Of the An-ient English Tenures. 
 
 In this chapter we shall take a short view of the ancient 
 tenures of our English estates, or the manner in which lands, 
 tenements, and hereditaments, mighfhave been holden, as the 
 same stood in force, till the middle of the last century. In which 
 we shall easily perceive, that all the particularities, all the seem- 
 ing and real hardships, that attended those tenures, were to be 
 accounted for upon feudal principles and no other ; being fruits 
 of, and deduced from, the feudal policy. 
 
 Almost all the real property of this kingdom is, by the policy 
 of our laws, supposed to be granted by, dependent upon, 
 and holden of, some superior lord, by and in consideration of 
 certain services to be rendered to the lord by the tenant or 
 possessor of this property. The thing holden is therefore styled 
 2i tenement, the possessors thereof tengjtts., and the manner of 
 their possession a tenure. Thus all the land in the kingdom is 
 supposed to be holden, mediately or immediately, of the king, 
 who is styled the lo rd paramou nt, or above all. Such tenants as 
 held under the king immediately, when they granted out portions 
 of their lands to inferior persons, became also lords with respect 
 to those inferior persons, as they were still tenants with re- 
 spect to the king : and, thus partaking of a middle nature, were 
 called mesne, or middle, lords. So that if the king granted a 
 manor to A, and he granted a portion of the land to B, now B 
 *60] was said to hold *of A, and A of the king ; or, in other words 
 B held his lands immediately of A, but mediately of the king. 
 The king therefore was styled lord paramount ; A was both tenant 
 and lord, or was a mesne lord : and B was called tenant ^gmt/a?'/, 
 or the lowest tenant ; being he who was supposed to make avail, 
 or profit of the land. In this manner are all the lands of the 
 kingdom holden, which are in the hands of subjects : for, accord- 
 ing to Sir Edward Coke, in the law of England we have not 
 
OF THE ANCIENT ENGLISH TENURES. 255 
 
 properly allodium ; which, we have seen, is the name by which 
 the feudists abroad distinguish such estates of the subject, as are 
 not holden of any superior. So that at the first glance we may 
 observe, that our lands are either plainly feuds, or partake very 
 strongly of the feudal nature. 
 
 All tenures being thus derived, or supposed to be derived, 
 from the king, those that held immediately under him, in right of 
 his crown and dignity, were called his tenants in capite, or in 
 chief ; which was the most honorable species of tenure, but at the 
 same time subjected the tenants to greater and more burthen 
 some services, than inferior tenures did. This distinction ran 
 through all the different sorts of tenure, of which I now proceed 
 to give an account. 
 
 I. There seems to have subsisted among our ancestors four 
 principal species of lay tenures, to which all others may be re- 
 duced : the grand criteria of which were the natures of the 
 several services or renders, that were due to the lords from their 
 tenants. The services, in respect of their quality, were either 
 fr ee or base service s ; in respect of their quantity and the time 
 ofexacting them, were either ce rtain or uncertain . Free services 
 were such as were not unbecoming the character of a soldier or a 
 freeman to perform ; *as to serve under his lord in the wars, [*61 
 to pay a sum of money, and the like. ^^af^Jgiidces-were such 
 as were only fit for peasants or persons of a servile rank ; as to 
 plough the lord's land, to make his hedges, to carry out his 
 dung, or other mean employments. The certain services, whether 
 free or base, were such as were stinted in quantity, and could not 
 be exceeded on any pretence ; as, to pay a stated annual rent, or 
 to plough such a field for three days. The tmcertain depended 
 upon unknown contingencies ; as, to do military service in 
 person, or pay an assessment in lieu of it, when called upon ; 
 or to wind a horn whenever the Scots invaded the realm ; which 
 are free services ; or to do whatever the lord should command ; 
 whicli is a base or villein service. 
 
 From the various combinations of these services have arisen the 
 four kinds of lay tenure which subsisted in England till the 
 middle of the last century ; and three of which subsist to this 
 day. Of these Bracton (who wrote under Henry the Third) 
 seems to give the clearest and most compendious account, of any 
 author ancient or modern ; of which the following is the o-'atline 
 
*, 
 
 256 OF THE ANCIENT ENGLISH TENURES. 
 
 or abstract. " Tenements are of two kinds, frank-tenement and 
 villenage. And, of frank-tenements, some are held freely in con- 
 sideration of homage and knight-service ; others m.free-socage^i'Cn 
 the service of fealty only." And again, " of villenages some are 
 pure, and others privileged. He that holds in pure viUmage 
 shall do whatever is commanded him, and always be bound to in 
 uncertain service. The other kind of villenage is called villein- 
 socage ; and these villein-socmen do villein services, but such as 
 are certain and determined." Of which the sense seems to be as 
 follows : first, where the service '^■a&free but uncertain, as mili- 
 tary service with homage, that tenure was called the tenure in 
 62] *chivalry, per servitium militare, or b)' knight-service. 
 Secondly, where the service was not only free, but also certain, as 
 by fealty only, by rent and fealty, etc., that tenure was called 
 liberum socagiunt, or free socage. These were the on]y free hold- 
 ings or tenements ; the others were villenous or servile, as thirdly, 
 where the service was base in its nature, and uncertain as 
 to time and quantity, the tenure was purum villenagium, absolute 
 or pure villenage. Lastly, where the service was base in its 
 nature, but reduced to a certainty, this was still villenage, but dis- 
 tinguished from the other by the name of privileged villenage, 
 villenagium, privilegiatum ; or it might still be called socaj/e 
 (from the certainty of its services), but degraded by their base- 
 ness into the inferior title of villanum socagiunt, villein-socage. 
 
 I. The first, most universal, and esteemed the most honorable 
 species of tenure, was that by knight-service, called in Latin 
 setvitium militare ; and in law French, chivalry, or service de 
 chivaler, answering to thefef d'haubert of the Normans, which 
 name is expressly given it by the Mirror. This differed in very 
 few points, as we shall presently see, from a pure and proper 
 feud, being entirely military, and the general effect of the feudal 
 establishment in England. To make a tenure by knight-service, 
 a determinate quantity of land was necessary, which was called 
 a knight's tee, feodum militare; the measure of which in 3 Edw. 
 I. was estimated at twelve ploughlands, and its value ( though it 
 varied with the times), in the reigns of Edward I. and Edward II., 
 was stated at 20/. per annum. And he who held this pro- 
 portion of land (or a whole fee) by knight-service, was bound to 
 attend his lord to the wars for forty days in every year, if calieo 
 upon ; which attendance was his reditus or return, his rent or 
 
OF THE ANCIENT ENGLISH TENURES. 257 
 
 service for the land he claimed to hold. If he held only half a 
 knight's fee, he was only bound to attend twenty days, and so in 
 proportion. And there is reason to *apprehend, that this ser- [*63 
 vice was the whole that our ancestors meant to subject themselves 
 to ; the other fruits and consequences of this tenure being fraudu- 
 lently superinduced, as the regular (though unforeseen ) append, 
 ages of the feudal system. 
 
 This tenure of knight-service had all the marks of a strict 
 and regular feud : it was granted by words of pure donation, dedi 
 et concessi ; was transferred by investiture or delivering cor- 
 poral possession of the land, usually called livery of seizin ; and 
 was perfected by homage and fealty. It also drew after it these 
 seven fruits and consequences, as inseparably incident to the 
 tenure in chivalry ; viz., aids, relief, primer seizin, wardship, 
 marriage, fines for alienation, and escheat : all which I shall en- 
 deavor to explain, and to show to be of feudal original. 
 
 I. Aids were originally mere benevolences granted by the , 
 tenant to his lord, in times of difficulty and distress ; but in pro- ^ 
 cess of time, they grew to be considered as a matter of right, and 
 not of discretion. These aids were principally three ; first, to 
 ransom the lord's person, if taken prisoner ; a necessary conse- 
 quence of the feudal attachment and fidelity : insomuch that the 
 neglect of doing it, whenever it was in the vassal's power, was 
 by the strict rigor of the feudal law an absolute forfeiture of his 
 estate. Secondly, to make the lord's eldest son a knight ; a mat- 
 ter that was formerly attended with great ceremony, pomp, and 
 expense. This aid could not be demanded till the heir was fif- 
 teen years old, or capable of bearing arms : the intention of it 
 being to breed up the eldest son and heir apparent of the seign- 
 ory, to deeds of arms and chivalry, for the better defence of the 
 nation. Thirdly, to marry the lord's eldest daughter, by giving 
 her a suitable portion : for daughters' portions were in those days 
 extremely slender, few lords being able to save much out of 
 *their income for this purpose ; nor could they acquire [*64 
 money by other means, being wholly conversant in matters of 
 arms ; nor, by the nature of their tenure, could they charge theii 
 lands with this or any other incumbrances. From bearing their 
 proportion to these aids, no rank or profession was exempted : 
 and therefore even the monasteries, till the time of their dissolu- 
 tion, contributed to the knighting of their founder's male heir (of 
 17 
 
2S8 OF THE ANCIENT ENGLISH TENURES. 
 
 whom their lands were holden), and the marriage of his female 
 descendants. And one cannot but observe in this particular the 
 great resemblance which the lord and vassal of the feudal law bore 
 to the patron and client of the Roman republic ; between whom 
 also there subsisted a mutual fealty, or engagement of defence 
 and protection. For, with regard to the matter of aids, there 
 ■ were three which were usually raised by the client; viz., to marry 
 the patron's daughter ; to pay his debts ; and to redeem his per- 
 son from captivity. 
 
 But besides these ancient feudal aids, the tyranny of lords by 
 degrees exacted more and more : as, aids to pay the lord's debts 
 (probably in imitation of the Romans), and aids to enable him to 
 pay aids or reliefs to his superior lord ; from which last indeed 
 the king's tenants in capite were, from the nature of their tenure, 
 excused, as they held immediately of the king, who had no supe- 
 rior. To prevent this abuse. King John's magna charta ordained 
 that no aids be taken by the king without consent of pailiament, 
 nor in anywise by inferior lords, save only the three ancient ones 
 above mentioned. But this provision was omitted in Henry III.'s 
 charter, and the same oppressions were continued till the 25 Ed- 
 ward I. when the statute called confirmatio chartarum was enac. 
 ed ; which in this respect revived King John's charter, by ordain-, 
 ing that none but the ancient aids should be taken. But though 
 *65] the species of aids was thus *restrained, yet the quantity 
 of each aid remained arbitrary and uncertain. King John's 
 charter indeed ordered, that all aids taken by inferior lord* 
 should be reasonable ; and that the aids taken by the king of his 
 tenants in capite should be settled by parliament. But they 
 were never completely ascertained and adjusted till the statute 
 Westm. I, 3 Edw. I., c. 36., which fixed the aids of inferior lords 
 al twenty shillings, or the supposed twentieth part of the annual 
 value of every knight's fee, for making the eldest son a knight, or 
 marrying the eldest daughter : and the same was done with regard 
 to the king's tenants in capite by statute 25 Edw. III., c. 11. The 
 other aid, for ransom of the lord's person, being not in its nature 
 capable of any certainty, was therefore never ascertained. 
 
 2. Relief, relevium, was before mentioned as incident to every 
 feudal tenure^ by way of fine or composition with the lord for 
 taking up the estate Wiiich was lapsed or fallen in by the death 
 of the last tenant But though reliefs had their original while 
 
OF THE ANCIENT ENGLISH TENURES. 259 
 
 euds were only life-estates, yet they continued after feuds be- 
 :ame hereditary ; and were therefore looked upon, very justly, as 
 )ne of the greatest grievances of tenure : especially when, at the 
 first, they were merely arbitrary and at the will of the lord ; so 
 ihat, if he pleased to demand an exorbitant relief, it was in effect 
 :o disinherit the heir. The English ill brooked this consequence 
 of their new-adopted policy ; and therefore William the Conquer- 
 or by his law ascertained the relief, by directing (in imitation of 
 the Danish heriots) that a certain quantity of arms, and habili- 
 ments of war, should be paid by the earls, barons, and vavasours 
 respectively ; and if the latter had no arms, they should pay 
 lOOJ. William Rufus broke through this composition, and again 
 demanded arbitrary uncertain reliefs, as due by the feudal laws : 
 thereby in effect obliging every heir to new-purchase or redeem. 
 his land : but his brother Henry I., by the charter before men- 
 tioned, restored his father's law ; *and ordained, that the [*66 
 relief to be paid should be according to the law so established, 
 and not an arbitrary redemption. But afterwards, when, by an 
 ordinance in 27 Hen. H., called the assize of arms, it was pro- 
 vided that every man's armor should descend to his heir, for de- 
 fence of the realm ; and it thereby became impracticable to pay 
 these acknowledgments in arms according to the laws of the 
 conqueror, the composition was universally accepted of iooj. for 
 every knight's fee ; as we find it ever after established. But it 
 must be remembered, that this relief was only then payable, if 
 the heir at the death of his ancestor had attained his full age of 
 one-and-twenty years. 
 
 3. Primer seizin was a feudal burthen, only incident to the 
 king's tenants in capite, and not to those who held of inferior or 
 mesne lords. It was a right which the king had, when any of 
 his tenants in capite died seized of a knight's fee, to receive of 
 the heir (provided he were of full age) one whole year's profits of 
 the lands, if they were in immediate possession : and half a 
 year's profits, if the lands were in reversion expectant on an es 
 tate for life. This seems to be little more than an additional 
 relief, but grounded upon this feudal reason ; that by the ancient 
 law of feuds, immediately upon the death of a vassal, the superior 
 was entitled to enter and take seizin or possession of the land, 
 by way of protection against intruders, till the heir appeared to 
 claim it, and receive investiture : during which interval the lord 
 
26o OF THE ANCIENT ENGLISH TENURES. 
 
 was entitled to take the profits ; and, unless the heir claimed 
 within a year and a day, it was by the strict law a forfeiture. 
 This practice however seems not to have long obtained in Eng- 
 land, if ever, with regard to tenure under inferior lords ; but as 
 to the king's tenures in capite, the prima seisina was expressly 
 declared, under Henry III. and Edward II., to belong to the 
 king by prerogative, in contradistinction to other lords. The 
 *67i king was entitled to enter and receive the *whole profits of 
 the land, till livery was sued ; which suit being commonly made 
 within a year and day next after the death of the tenant, in pur- 
 suance of the strict feudal rule, therefore the king used to take 
 as an average the first fruits, that is to say, one year's profits of 
 the land. And this afterwards gave a handle to the popes, who 
 claimed to be feudal lords of the church, to claim in like manner 
 from every clergyman in England, the first year's profits of his 
 benefice, by way of primitice, or first fruits. 
 
 4. These payments were only due if the heir was of full age ; 
 but if he was under the age of twenty-one, being a male, or four- 
 teen, being a female, the lord was entitled to the wardship of the 
 heir, and was called the guardian in chivalry. This wardship 
 consisted in having the custody of the body and lands of such 
 heir, without any account of the profits, till the age of twenty- 
 one in males, and sixteen in females. For the law supposed 
 the heir-male unable to perform knight-service till twenty-one : 
 but as for the female, she was supposed capable at fourteen to 
 marry, and then her husband might perform the service. The 
 lord therefore had no wardship, if at the death of the ancestor 
 the heir-male was of the full age of twenty-one, or the heir-female 
 of fourteen ; yet, if she was then under fourteen, and the lord 
 once had her in ward, he might keep her so till sixteen, by vir- 
 tue of the statute of Westm. i, 3 Edw. I., c. 22., the two additional 
 years being given by the legislature for no other reason but 
 merely to benefit the lord. 
 
 This wardship, so far as it related to land, though it was not 
 nor could be part of the law of feuds, so long as they were arbi- 
 trary, temporary, or for life only , yet, when they became heredit- 
 ary, and did consequently often descend upon infants, who by 
 reason of their age could neither perform nor stipulate for the 
 services of the feud, does not seem upon feudal principles to 
 have been unreasonable. For the wardship of the land, or cus 
 
OF THE ANCIENT ENGLISH TENJRES. 261 
 
 tody of the feud, was retained by the lord, that he rnigiit, out of 
 the profits thereof, provide a fit person *to supply the in- [*68 
 fant's services, till he should be of age to perform them himself. 
 And if we consider the feud in its original import, as a stipend, 
 fee, or reward for actual service, it could not be thought hard 
 that the lord should withhold the stipend, so long as the service 
 was suspended. Though undoubtedly to our English ancestors, 
 where such a stipendiary donation was a mere supposition 01 
 figment, it carried abundance of hardship ; and accordingly it 
 was relieved by the charter of Henry I. before mentioned, which 
 took this custody from the lord, and ordained that the custody, 
 both of the land and the children, should belong to the widow or 
 next of kin. But this .noble immunity did not continue many 
 years. 
 
 The wardship of the body was a consequence of the ward- 
 ship of the land ; for he who enjoyed the infant's estate was the 
 properest person to educate and maintain him in his infancy: 
 and also, in a political view, the lord was most concerned to give 
 his tenant suitable education, in order to qualify him the better 
 to perform those services which, in his maturity, he was bound to 
 render. 
 
 When the male heir arrived to the age of twenty-one, or the 
 heir-female to that of sixteen, they might sue out their livery or 
 ousterlemain ; that is, the delivery of their lands out of their 
 guardian's hands. For this they were obliged to pay a fine, 
 namely, half a year's profit of the land ; though this seems ex- 
 pressly contrary to magna charta. However, in consideration of 
 their lands having been so long in ward, they were excused all 
 reliefs, and the king's tenants also all primer seizins. In order to 
 ascertain the profits that arose to the crown by these first fruits 
 of tenure, and to grant the heir his livery, the itinerant justices or 
 justices in eyre, had it formerly in charge to make inquisition 
 concerning them by a jury of the county, commonly called an 
 inquisitio post mortem ; which was instituted to inquire (at the 
 death of any man of fortune) the value of his estate, the tenure 
 by which it was *holden, and who, and of what age [*69 
 his heir was ; thereby to ascertain the relief and value of the 
 primer seizin, or the wardship and livery accruing to the king 
 thereupon. A manner of proceeding that came in process of 
 time to be greatly abused, and at length an intolerable grievance 
 
262 OF THE ANCIENT ENGLISH TENURES. 
 
 it being one of the principal accusations against Empson .^ /id 
 Dlidley, the wicked engines of Henry VII., that by color of 
 false inquisitions they compelled many persons to sue out livery 
 from the crown, who by no means were tenants thereunto. And 
 afterwards, a court of wards and liveries was erected, for con- 
 ducting the same inquiries in a more solemn and legal manner. 
 
 When the heir thus came of full age, provided he held a 
 knight's fee in capite under the crown, he was to receive the 
 order of knighthood, and was compellable to take it upon him, or 
 else pay a fine to the king. For in those heroical times, no 
 person was qualified for deeds of arms and chivalry, who had 
 not received this order, which was conferred with much prepara- 
 tion and solemnity. We may plainly discover the footsteps of 
 a similar custom in what Tacitus relates of the Germans, who, 
 in order to qualify their young men to bear arms, presented 
 them in full assembly with a shield and lance ; which ceremony, 
 as was formerly hinted, is supposed to have been the original of 
 the feudal knighthood. This prerogative, of compelling the 
 king's vassals to be knighted, or to pay a fine, was expressly 
 recognized in Parliament by the statute de militibus, i Edw. II. ; 
 was exerted as an expedient for raising money by many of our 
 best princes, particularly by Edward VI., and Queen Elizabeth ; 
 but yet was the occasion of heavy murmurs when exerted by 
 Charles I. : among whose many misfortunes it was, that neither 
 himself nor his people seemed able to distinguish between the 
 arbitrary stretch, and the legal exertion of prerogative. How- 
 *70] ever, among the other concessions made by *that un- 
 happy prince, before the fatal recourse to arms, he agreed to 
 divest himself of this undoubted flower of the crown, and it was 
 accordingly abolished by statute i6 Car. I., c. 20. 
 
 5. But, before they came of age, there was still another 
 piece of authority, which the guardian was at liberty to exercise 
 over his infant wards ; I mean the right of marriage (maritagiam, 
 as contradistinguished from matrimony), which, in its feudal 
 sense, signifies the power, which the lord or guardian in chivalry 
 had of disposing of his infant ward in matrimony. I'-or, while 
 the infant was in ward, the guardian had the power of tendering 
 him or her a suitable match, without disparagement or inequality ; 
 which, if the infants refused, they forfeited the value of the 
 marriage, valorem maritagii, to their guardian ; that is, so much 
 
OF THE ANCIENT ENGLISH TENURES. 263 
 
 as a jury would assess, or any one would bona fide give to the 
 guardian for such an alliance ; and, if the infants married them- 
 selves without the guardian's consent, they forfeited double the 
 value, duplicem valorem maritagii. This seems to have been 
 one of the greatest hardships of our ancient tenures. There 
 were indeed substantial reasons why the lord should have the 
 restraint and control of the ward's marriage, especially of his 
 female ward ; because of their tender years, and the danger of 
 su^h female wards intermarrying with the lord's en^my ; but 
 no tolerable pretence could be assigned why the lord should 
 have the sale or valine of the marriage. Nor indeed is this claim 
 of strictly feudal original ; the most probable account of it seem.- 
 ing to be this : that by the custom of Normandy the lord's 
 consent was necessary to the marriage of his female wards ; 
 which was introduced into England, together with the rest of 
 the Norman doctrine of feuds : and it is likely that the lords 
 usually took money for such their consent, since, in the often- 
 cited charter of Henry the First, he engages for the future to 
 take nothing for his consent ; which also he promises in general 
 to give, provided such female ward were not *married [*71 
 to his enemy. But this, among other beneficial parts of that 
 charter, being disregarded, and guardians still continuing to 
 dispose of their wards in a very arbitrary unequal manner, it 
 was provided by King John's great charter that heirs should be 
 married without disparagement, the next of kin hating previous 
 notice ef the contract ; or, as it was expressed in the first draught 
 of that charter, ita maritentur ne disparagentur, et per consilium 
 propinquorum de consanguinitate sua. But these provisions in 
 behalf of the relations were .omitted in the charter of Henry 
 III.; wherein the clause stands merely thus, " hceredes mariten- 
 tur absque disparagatione :'" meaning certainly, by hceredes, 
 heirs female, as there are no traces before this to be found of 
 the lord's claiming the marriage of heirs male ; and as Glanvil 
 expressly confines it to heirs female. But the king and his 
 great lords thenceforward took a handle (from the ambiguity of 
 this expression) to claim them both, sive sit masculus sive foem- 
 ina, as Bsacton more than once expresses it : and also as nothing 
 but disparagement was restrained by magna charta, they thought 
 themselves at liberty to make all other advantages that they 
 could And afterwards this right, of selling the ward in mariiage, 
 
264 OF THE ANCIENT ENGLISH TENURES. 
 
 or else receiving the price or value of it, was expressly declared 
 by the statute of Merton ; which is the first direct mention that 
 I have met of it, in our own or any other law.^ 
 
 6. Another attendant or consequence of tenure by knight- 
 service was ^hat of fines due to the lord for every alienation, 
 whenever the tenant had occasion to make over his land to 
 another. This depended on the nature of the feudal connection ; 
 it not being reasonable or allowed, as we have before seen, that 
 a feudatory should transfer his lord's gift to another, and substi- 
 tute a new tenant to do the service in his own stead, without the 
 •72] consent of the lord ; and, as the *feudal obligation was con- 
 sidered as reciprocal, the lord also could not alienate his seignory 
 without the consent of his tenant, which consent of his was called 
 an attornment. This restraint upon the lords soon wore away ; 
 that upon the tenants continued longer. For when every thing 
 came in process of time to be bought and sold, the lords would 
 not grant a license to their tenant to alien, without a fine being 
 paid ; apprehending that, if it was reasonable for the heir to pay 
 
 ' [What fruitful sources of revenue these wardships and marriages of the 
 tenants, who held lands by knight's service, were to the crown, will appear 
 from the two following instances, collected among others by Lord Lyttleton 
 (Hist. Hen. II. 2 vol. 296): "John Earl of Lincoln gave Henry the Third 3000 
 marks to have the marriage of Richard de Clare, for the benefit of Matilda, 
 his eldest daughter ; and Simon de Montford gave the same king 10,000 
 marks to have the custody of the lands and heir of Gilbert de Unfranville, 
 with the heir's fcarriage, a sum equivalent to a hundred thousand pounds at 
 present." In this case the estate must have been large, the minpr young, 
 and the alliance honorable. For, as Mr. Hargrave informs us, who has well 
 described this species of guardianship, "the guardian in chivalry was not ac- 
 countable for the profits made of the infant's lands, during the wardship, but 
 received them for his own private emolument, subject only to the bare maia- 
 tenance ot the infant. And this guardianship, being deemed more an interest 
 for the profit of the guardian, than a trust for the benefit of the ward, was 
 saleable and transferable, like the ordinary subjects of property, to the best 
 bidder ; and if not disposed of, was transmissible to the lord's personal 
 representatives. Thus the custody of the infant's person, as well as the care 
 of his estate, might devolve upon the most perfect stranger to the infant; 
 one prompted by every pecuniary motive to abuse the delicate and important 
 trust of education, without any ties of blood or regard tc counteract the tempta- 
 tions of interest, or any sufficient authority to restram him from yielding to 
 their influence." (Co. Litt. 88, n. 11.) One cannot read this without aston- 
 ishment, that such should continue to be the condition of the country till the 
 year 1660, which, from the extermination of these feudal oppressions, ought 
 to be regarded as a me norable era in the history of our law and liberty.] 
 
OF THE ANCIENT ENGLISH TENURES. 26$ 
 
 a fine or relief on the renovation of his paternal estate, it was 
 mucli more reasonable that a stranger should make the same 
 acknowledgment on his admission to a newly-purchased feud. 
 With us in England, these fines seem only to have been exacted 
 from the king's tenants m capite, who were never able to alien 
 without a license : but as to common persons, they were at liberty 
 by magna charta, and the statute of quia emptores (if not earlier), 
 to alien the whole of their estate, to be holden of the same lord 
 as they themselves held it of before. But the king's tenants in 
 capite not being included under the general words of these stat- 
 utes could not alien jvithout a license ; for if they did, it was in 
 ancient strictness an absolute forfeiture of the land; though some 
 have imagined otherwise. But this severity was mitigated by 
 the statute, i Edw. III., c. 12, which ordained, that in such case 
 the lands should not be forfeited, but a reasonable fine be paid 
 to the king. Upon which statute it was settled, that one-third 
 of the yearly value should be paid for a license of alienation ; but 
 if the tenant presume to alien without a license, a full year's 
 value should be paid. 
 
 7. The last consequence of tenure in chivalry was escheat ; 
 which is the determination of the tenure, or dissolution of the 
 mutual bond between the lord and tenant from the extinction of 
 the blood of the latter by either natural or civil means : if he 
 died without heirs of his blood, or if his blood was corrupted and 
 stained by commission of treason or felony whereby every inher- 
 itable quality was entirely blotted out *and abolished. In [*73 
 such cases the lands escheated, or fell back to the lord of the fee ; 
 that is, the tenure was determined by breach of the original con- 
 dition expressed or implied in the feudal donation. In the one 
 case there were no heirs subsisting of the blood of the first feu- 
 datory or purchaser, to which heirs alone the grant of the feud 
 extended ; in the other, the tenant, by perpetrating an atrocious 
 crime, showed that he was no longer to be trusted as a vassal, 
 having forgotten his duty as a subject ; and therefore forfeited 
 his feud, which he held under the implied condition that he should 
 not be a traitor or a felon. The consequence of which in both 
 cases was, that the gift, being determined, resulted back to the 
 lord who gave it. 
 
 These were the principal qualities, fruits, and consequences 
 of tenure, by knight-service : a tenure, by which the greater part 
 
266 OF THE ANCIENT ENGLISH TENURES. 
 
 of the lands in this kingdom were holden, and that principally tf 
 the king in capite, till the middle of the last century ; and which 
 was created, as SirEdwaid Coke expressly testifies, for a military 
 purpose, viz., for defence of the realm by the king's own principal 
 subjects, which was judged to be much better than to trust to 
 hirelings or foreigners. The description here given is that of a 
 knight-service proper ; which was to attend the king in his wars. 
 There were also some other species of knight-service ; so called, 
 though improperly, because the service or render was of a free 
 and honorable nature, and equally uncertain as to the time of 
 rendering as that of knight-service proper, and because they were 
 attended with similar fruits and consequences. Such was the 
 tenure by grand serjeanty, per magnum, servitium, whereby the 
 tenant was bound, instead of serving the king generally in his 
 wars, to do some special honorary service to the king in person ; 
 as to carry his banner, his sword, or the like ; or to be his butler, 
 champion, or other officer, at his coronation. It was in most 
 other respects like knight-service ; only he was not bound to pay 
 *74] aid, or escuage ; * and, when the tenant by knight-service 
 paid five pounds for a relief on every knight's fee, tenant by grand 
 serjeanty paid one year's value of his land, were it much or little. 
 Tenure by carnage, which was to wind a horn when the Scots or 
 other enemies entered the land, in order to warn the king's sub- 
 jects, was (like other services of the same nature) a species of 
 grand serjeanty. 
 
 These services, both of chivalry and grand serjeanty, were all 
 personal, and uncertain as to their quantity or duration. But, 
 the personal attendance in knight-service growing troublesime 
 and inconvenient in many respects, the tenants found means of 
 compounding for it ; by first sending others in their stead, and 
 in process of time making a pecuniary satisfaction to the lords 
 in lieu of it. This pecuniary satisfaction at last came to be 
 levied by assessments, at so much for every knight's fee ; and 
 therefore this kind of tenure was called scutagium in Latin, or 
 servitium scuti; scutum being then a well-known denomination foi 
 money : and, in like manner, it was called, in our Norman French, 
 escuage ; being indeed a pecuniary, instead of a military, service. 
 The first time this appears to have been taken was in the 5 Hen. 
 II., on account of his expedition to Toulouse ; but it soon came 
 to be so universal, that personal attendance fell quite into disuse; 
 
OF THE ANCIENT ENGLISH TENURES. 267 
 
 Hence we find in our ancient histories, that, from this ^period, 
 when our kings went to war, they levied scutages on their tenants 
 that is, on all the landholders of the kingdom, to defray their 
 expenses, and to hire troops ; and these assessments in the time 
 of Hen. n., seem to have been made arbitrarily, and at the king's 
 pleasure. Which prerogative being greatly abused by his suc- 
 cessors, it became matter of national clamor ; and King John 
 was obliged to consent by his magna charta, that no scutage 
 should be imposed without consent of parliament. But this 
 clause was omitted in his son Heilry IH.'s charter, where we 
 only find that scutagQS *or escuage should be taken as they [*75 
 were used to be taken in the time of Henry II. : that is in a reas- 
 onable and moderate manner. Yet afterwards by statute 25 
 Edw. I., c. 5, 6, and many subsequent statutes, it was again 
 provided, that the king should take no aids or tasks but by the 
 common assent of the realm : hence it was held in our old books, 
 that escuage or scutage could not be levied but by consent of 
 parliament ; such scutage being indeed the ground work of all 
 succeeding subsidies, and the land-tax of later times. 
 
 Since, therefore, escuage differed from knight-service in 
 nothing, but as a compensation differs from actual service, knight- 
 service is frequently confounded with it. And thus Littleton 
 must be understood, when he tells us, that tenant by homage, 
 fealty, and escuage, was tenant by knight-service : that is, that 
 this tenure (being subservient to the military policy of the nation) 
 was respected as a tenure in chivalry. But as the actual service 
 was uncertain, and depended upon emergencies, so it was neces- 
 sary that this pecuniary compensation should be equally uncer- 
 tain, and depend on the assessments of the legislature suited to 
 those emergencies. For had the escuage been a settled invaria- 
 ble sum, payable at certain times, it had been neither more nor 
 less than a mere pecuniary rent ; and the tenure, instead of 
 knight-service, would have then been of another kind, called 
 socage, of which we shall speak in the next chaptei. 
 
 For the present I have only to observe, that by the degene- 
 rating of- knight-service, or personal military duty, into escuage, 
 or pecuniary assessments, all the advantages (either promised or 
 real) of the feudal constitution were destroyed, and nothing b it 
 the hardships remained. Instead of forming a nation.al militia 
 composed of barons, knights, and gentlemen, bound by theit 
 
268 OP THE ANCIENT ENGLISH TENURES. 
 
 interest, their honor, and their oaths, to defend their king and 
 *76] country, the whole of this system of *tenures now tended to 
 nothing else but a wretched means of raising money to pay an 
 army of occasional mercenaries. In the mean time the families 
 of all our nobility and gentry groaned under the intolerable 
 burthens which (in consequence of the fiction adopted after the 
 Conquest) were introduced and laid upon them by the subtlety 
 and finesse of the Norman lawyers. For, besides the scutages to 
 which they were liable in defect of personal attendance, which 
 however were assessed by themselves in parliament, they might 
 be called upon by the king or lord paramount for «z</f, whenever 
 his eldest son was to be knighted, or his eldest daughter married ; 
 not to forget the ransom of his own person. The heir, on the 
 death of his ancestor, if of full age, was plundered of the first 
 emoluments arising from his inheritance, by way of r^//^ and 
 primer seizin ; and if under age, of the whole of his estate during 
 infancy. And then, as Sir Thomas Smith very feelingly com- 
 plains, " when he came to his own, after he was out of wardship, 
 his woods decayed, house fallen down, stock wasted and gone, 
 lands let forth and ploughed to be barren," to reduce him still 
 farther, he was yet to pay half a year's profits as a fine for suing 
 out his livery ; and also the price or value of his marriage, if he 
 refused such wife as his lord and guardian had bartered for, and 
 imposed upon him ; or twice that value, if he married another 
 woman. Add to this, the untimely and expensive honor of 
 knighthood, to make his poverty more completely splendid. And 
 when by these deductions his fortune was so shattered and ruined, 
 that perhaps he was obliged to sell his patrimony, he had not 
 even that poor privilege allowed him, without paying an exorbi- 
 tant fine for a license of alienation. 
 
 A slavery so complicated, and so extensive as this, called 
 aloud for a remedy in a nation that boasted of its freedom. 
 Palliatives were from time to time applied by successive acts of 
 parliament, which assuaged some temporary grievances. Till 
 at length the humanity of King James I, consented, in consider- 
 ation of a proper equivalent, to abolish them all ; though the 
 *77] plan *proceeded not to effect ; in like manner as he had 
 formed a scheme, and begun to put it in execution, for removing 
 the feudal grievance of heritable jurisdiction in Scotland, which 
 has since been pursued and effected by the statute 20 Geo. II., ch 
 
OF THE MODERN ENGLISH TENURES. 269 
 
 43. King J ames's plan for exchanging our military tenures seems 
 to have been nearly the same as that which has been since pur- 
 sued ; only with this difference, that, by way of compensation for 
 the loss which the crown and other lords would sustain, an annual 
 fee-farm rent was to have been settled and inseparably annexed 
 to the crown and assured to the inferior lords, payable out of 
 every knight's fee within their respective seignories. An ex- 
 pedient seemingly much better than the hereditary excise, which 
 was afterwards made the principal equivalent for these conces- 
 sions. For at length the military tenures, with all their heavy 
 appendages (having, during the usurpation, been discontinued,) 
 were destroyed at one blow by the statute 12 Car. II., c. 24, which 
 enacts " that the court of wards and liveries, and all wardships, 
 liveries, primer seizins, and ousterlemains, values and forfeitures 
 of marriage, by reason of any tenure of the king or others, be 
 totally taken away. And that all fines for alienation, tenures 
 by homage, knight-service, and escuage, and also aids for marry- 
 ing the daughter or knighting the son, and all tenures of the 
 king in capite, be likewise taken away. And that all sorts of 
 tenures, held of the king or others, be turned into free and com- 
 mon socage ; save only tenures in frankalmoign, copyholds, and 
 the honorary services (without the slavish part) of grand 
 serjeanty." A statute, which was a greater acquisition to the 
 civil property of this kingdom that even magna charta itself ; since 
 that only pruned the luxuriances that had grown out of the 
 military tenures, and thereby preserved them in vigor ; but the 
 statute of King Charles extirpated the whole, and demolished both 
 root and branches. 
 
 CHAPTER VI. 
 
 [bL. COMM. BOOK II. CH. VI.] 
 
 Of the Modem English Tenures. 
 
 Although, by the means that were mentioned in the preced- 
 ing chapter, the oppressive or military part of the feudal consti- 
 tution itself was happily done away, yet we are not to imagine 
 that the constitution itself was utterly laid aside, and a new one 
 
270 OF THE MODERN ENGLISH TENURES. 
 
 introduced in its room ; since by the statute, 12 Car. II., the 
 tenures of socage and frankalmoign, the honorary services ol 
 grand serjeanty, and the tenure by copy of court roll, were 
 reserved ; nay, all tenures in general, except frankalmoign, grand 
 serjeanty, and copyhold, were reduced to one general species of 
 tenure, then well known, and subsisting, called /r^i? and common 
 socage. And this, being sprung from the same feudal original 
 as the rest, demonstrates the necessity of fully contemplating 
 that ancient system ; since it is that alone to which we can 
 recur, to explain any seeming or real difficulties, that may arise 
 in our present mode of tenure. 
 
 The military tenure, or that by knight-service, consisted of 
 what were reputed the most free and honorable services, but 
 which in their nature were unavoidably uncertain in respect to 
 the time of their performance. The second species of tenure, 
 ox free-socage, consisted also of free and honorable services ; but 
 such as were liquidated and reduced to an absolute certainty. 
 *79] And this tenure not only subsists to * this day, but has in 
 a manner absorbed and swallowed up (since the statute of Charles 
 the Second) almost every other species of tenure. And to this 
 we are next to proceed. 
 
 II. Socage, in its most general and extensive signification, 
 seems to denote a tenure by any certain and determinate service. 
 And in this sense it is by our ancient writers constantly put in 
 opposition to chivalry, or knight-service, where the render was 
 precarious and uncertain. Thus Bracton ; if a man holds by rent 
 in money, without any escuage or serjeanty, "za? tenementum did 
 potest socagium : " but if you add thereto any royal service ; or 
 escuage, to any, the smallest, amount, " illud did poterit feodum 
 militare." So too the author of Fleta ; "ex donationibus, servitia 
 vtilitaria vel magnae serjantiae non continentibus., oritur nobis 
 quoddwm nomen generate, quod est socagium'' Littleton also 
 defines it to be, where the tenant holds his tenement of the lord 
 by any certain service, in lieu of all other services ; so that they be 
 not services of chivalry, or knight-service. And, therefore, ^ter- 
 wards he tells us, that whatsoever is not_lgnure_in_chivalry is 
 ten ure in socage: i n like manner as it is defined by Finch, a 
 tenure to be done out of war. The service must therefore be 
 certain, in order to denominate it socage ; as to hold by fealty 
 etna 20J. rent ; or, by homage, fealty, and 20J. rent : or, by 
 homage and fealty without rent ; or, by fealty and certain corporeal 
 
OF THE MODERN ENGLISH TENURES. 271 
 
 ser\ ice, as ploughing the lord's land for three days ; or, by fealty 
 only without any other service : for all these are tenures in 
 socage. 
 
 But socage, as was hinted in the last chapter, is of two sorts : 
 free socage, where the services are not only certain, but honora- 
 ble, and villei9t-socdig&, where the services, though certain, are of 
 a baser nature. Such as hold by the former tenure are called in 
 Glanvil, and other subsequent authors, by the name of liberi 
 sokemanni, or tenants in free-socage. Of this tenure we are first 
 to speak: and this, both in the *nature of its service, and [*80 
 the fruits and consequences appertaining thereto, was always 
 by much the most free and independent species of any. And, 
 therefore, I cannot but assent to Mr. Somner's etymology of the 
 word ; who derives it from the Saxon appellation soc, which signi- 
 fies liberty or privilege, and being joined to a usual termination, 
 is called socage, in Latin socagium ; signifying thereby a free or 
 privileged tenure. This etymology seems to me much more just 
 than that of our common lawyers in general, who derive it from 
 soca, an old Latin word, denoting (as they tell us) a plough : for 
 that in ancient time this socage tenure consisted in nothing else 
 but services of husbandry, which the tenant was bound to do to 
 his lord, as to plough, sow, or reap for him ; but that in process 
 of time, this service was changed into an annual rent by consent 
 of all parties, and that, in memory of its original, it still retains 
 the name of socage or plough-service. But this by no means 
 agrees with what Littleton himself tells us, that to hold by fealty 
 only, without paying any rent, is tenure in socage ; for here is 
 plainly no commutation for plough-service. Besides, even ser- 
 vices, confessedly of a military nature and original (as escuage, 
 which, while it remained uncertain, was equivalent to knight- 
 service), the instant they were reduced to a certainty changed 
 both their name and nature, and were called socage. It was the 
 certainty, therefore, that denominated it a socage tenure ; and 
 nothing sure could be a greater liberty or privilege, than to have 
 the service ascertained, and not left to the arbitrary calls of the 
 lord, as the tenures of chivalry. Wherefore also Britton, who 
 describes lands in socage tenure under the name of /nzww/^^/^rw^, 
 tells us, that they are " lands and tenements, whereof the nature 
 of the fee is changed by feoffment out of chivalry for certain 
 yearly services, and in respect whereof neither homage, ward, 
 marriage, nor relief can be demanded." Which leads us also to 
 
272 OF THE MODERN ENGLISH TENURES. 
 
 another observation, that if socage tenures were of such base and 
 *81] servile *original, it is hard to account for the very great 
 immunities which the tenants of them always enjoyed ; so highly 
 superior to those of the tenants by chivalry, that it was thought, 
 in the reigns of both Edward I. and Charles II., a point of the 
 utmost importance and value to the tenants, to reduce the tenure 
 hy knight-service to fraunke ferme or tenure by socage. We 
 may, therefore, I think, fairly conclude in favor of Somner's 
 etymology, and the liberal extraction of the tenure in free socage, 
 against the authority even of Littleton himself. 
 
 Taking this, then, to be the meaning of the word, it seems 
 probable that the socage tenures were the relics of Saxon liberty ; 
 retained by such persons as had neither forfeited them to the 
 king, nor been obliged to exchange their tenure, for the more 
 honorable, as it was called, but, at the same time, more burthen- 
 some, tenure of knight-service. This is peculiarly remarkable in 
 the tenure which prevails in Kent, called gavelkind, which is 
 generally acknowledged to be a species of socage tenure ; the 
 preservation whereof inviolate from the innovations of the Nor- 
 man conqueror is a fact universally known. And those who" 
 thus preserved their liberties were said to hold in free and 
 common socage. 
 
 As therefore the grand criterion and distinguishing mark of 
 this species of tenure are the having its renders or services ascer- 
 tained, it will include under it all other methods of holding free 
 lands by certain and invariable rents and duties : and in particu- 
 lar, petit serjeanty, tenure in burgage, and gavelkind. 
 
 We may remember that by the statute, 12 Car. II., grand 
 serjeanty is not itself totally abolished, but only the slavish 
 appendages belonging to it : for the honorary services (such as 
 carrying the king's sword or banner, officiating as his butler, 
 carver, &c., at the coronation) are still reserved, l^ovf petit ser- 
 jeanty bears a great resemblance to grand serjeanty ; for as the 
 one is a personal service, so the other is a rent or render, both 
 *82] tending to some purpose relative to the king's *person 
 Petit serjeanty, as defined by Littleton, consists in holding lands 
 of the king by the service of rendering to him annually some 
 small implement of war, as a bow, a sword, a lance, an arrow, or 
 the like. This, he says, is but socage in effect : for it is no per- 
 sonal service, but a certain rent : and, we may add, it is clevly 
 no predial service, or service of the plough, but in all respectJ 
 
OF THE MODERN ENGLISH TENURES. 273 
 
 Hberum et commune socagium : only being held of the king, it is 
 by way of eminence dignified with the title of parvum servitium 
 regis, or petit serjeanty. And magna charta respected it in this 
 light, when it enacted, that no wardship of the lands or body 
 should be claimed by the king in virtue of a tenure by petit 
 serjeanty. 
 
 Tenure in burgage is described by Glanvil, and is expressly 
 said by Littleton, to be but tenure in socage : and it is where the 
 king or other person is lord of an ancient borough, in which the 
 tenements are held by a rent certain. It is indeed only a kind 
 of town socage ; as eommon socage, by which other lands are 
 holden, is usually of a rural nature. A borough, as we have 
 formerly seen, is usually distinguished from other towns by the 
 right of sending members to parliament ; and, where the right of 
 election is by burgage tenure, that alone is a proof of the an- 
 tiquity of the borough. Tenure in burgage, therefore, or bur- 
 gage tenure, is where houses, or lands which were formerly the 
 site of the houses, in an ancient borough, are held of some lord 
 in common socage, by a certain established rent. And thesf 
 seem to have withstood the shock of the Norman encroachmenta 
 principally on account of their insignificancy, which made it not 
 worth while to compel them to an alteration of tenure ; as a 
 hundred of them put together would scarce have amounted to a 
 knight's fee. Besides, the owners of them, being chiefly artif- 
 icers and persons engaged in trade, could not with any tolerable 
 propriety be put on such a military establishment, as the tenure 
 in chivalry was. And here also we have again an instance, 
 where a tenure is confessedly in socage, and yet could not possi- 
 bly ever have been held by plough-service ; since the *ten- [*83 
 ants must have been citizens or burghers, the situation fre- 
 quently a walled town, the tenement a single house ; so that 
 none of the owners was probably master of a plough, or was able 
 to use one, if he had it. The free socage, therefore, in which 
 these tenements are held, seems to be plainly a remnant of Saxon 
 liberty ; which may also account for the great variety of customs, 
 affecting many of these tenements so held in ancient burgage . 
 the principal and most remarkable of which is that called Bor- 
 ough English, so named in contradistinction as it were to the 
 Norman customs, and which is taken notice of by Glanvil and by 
 Littleton ; viz. that the youngest son, and not the eldest, suc- 
 ceeds to the burgage tenement on the death of his father. For 
 18 
 
274 OF THE MODERN ENGLISH TENURES. 
 
 which Littleton gives this reason ; because the younger son^ by 
 reason of his tender age, is not so capable as the rest of his 
 brethren to help himself. Other authors have indeed given a 
 much stranger reason for this custom, as if the lord of the fee 
 had anciently a right of concubinage with his tenant's wife on 
 her wedding night ; and that therefore the tenement descended 
 not to the eldest, but the youngest son, who was more certainly 
 the offspring of the tenant. But I cannot learn that ever this 
 custom prevailed in England, though it certainly did in Scotland 
 (under the name of mercheta or marchetd), till abolished by Mal- 
 colm III. And perhaps a more rational account than either may 
 be fetched (though at a sufficient distance) from the practice of 
 the Tartars ; among whom, according to Father Duhalde, this 
 custom of descent to the youngest son also prevails. That na- 
 tion is composed totally of shepherds and herdsmen ; and the 
 elder sons, as soon as they are capable of leading a pastoral life, 
 migrate from their father with a certain allotment of cattle ; and 
 go to seek a new habitation. The youngest son, therefore, who 
 continues latest with his father, is naturally the heir of his house, 
 the rest being already provided for. And thus we find that, 
 among many other northern nations, it was the custom for all the 
 *84] sons but one to migrate from the father, which one *be- 
 came his heir. So that possibly this custom, wherever it pre- 
 vails, may be the remnant of that pastoral state of our British 
 and German ancestors, which Caesar and Tacitus describe. 
 Other special customs there are in different burgage tenures ; as 
 that, in some, the wife shall be endowed of all her husband's 
 tenements, and not of the third part only, as at the common law : 
 and that, in others, a man might dispose of his tenements by will, 
 which, in general, was not permitted after the Conquest till the 
 reign of Henry the Eighth ; though in the Saxon times it was 
 allowable. A pregnant proof that these liberties of socage ten- 
 ure were fragments of Saxon liberty. 
 
 The nature of the tenure in gavelkind affords us a still 
 stronger argument. It is universally known what struggles the 
 Kentish men made to preserve their ancient liberties, and with 
 how much success those struggles were attended. And as it is 
 principally here that we meet with the custom of gavelkind, 
 ^though it was and is to be found in some other parts of the king- 
 dom), we mnv fairly conclude that this was a part of those liber- 
 ties ; agreeably to Mr. Selden's opinion, that gavelkind before the 
 
OF THE MODERN ENGLISH TENURES. 275 
 
 Norman Conquest was the general custom of the realm. The 
 distinguishing properties of this tenure are various ; some of the 
 principal are these : i. The tenant is of age sufficient to alien 
 his estate by feoffment at the age of fifteen. 2. The estate does 
 not escheat in case of an attainder and execution for felony ; 
 their maxim being " the father to the bough, the son to the 
 plough." 3. In most places he had a power of devising lands 
 by will, before the statute for that purpose was made. 4. The 
 lands descend, not to the eldest, youngest, or any one son only, 
 but to all the sons together ; which was indeed anciently the 
 most usual *course of descent all over England, though in [*85 
 particular places particular customs prevailed. These, among 
 other properties, distinguished this tenure in a most remarkable 
 manner: and yet it is said to be only a species of a. socage ten- 
 ure, modified by the custom of the country ; the lands being 
 holden by suit of court and fealty, which is a service in its na- 
 ture certain. Wherefore by a charter of King John, Hubert, 
 Archbishop of Canterbury, was authorized to exchange the gavel- 
 kind tenures holden of the see of Canterbury into tenures by 
 knight's service ; and by statute 31 Hen. VHI. c. 3, for disgavel- 
 ling the lands of divers lords and gentlemen in the county of 
 Kent, they are directed to be descendible for the future like other 
 lands which were never holden by service of socage. Now the im- 
 munities which the tenants in gavelkind enjoyed were such, as 
 we cannot conceive should be conferred upon mere ploughmen 
 and peasants ; from all of which I think it sufficiently clear that 
 tenures in free socage are in general of a nobler original than is 
 assigned by Littleton, and after him by the bulk of our common 
 lawyers. 
 
 Having thus distributed and distinguished the several species 
 of tenure in free socage, I proceed next to show that this also 
 partakes very strongly of the feudal nature. Which may proba- 
 bly arise from its ancient Saxon original ; since (as was before 
 observed) feuds were not unknown among the Saxons, though 
 they did not form a part of their military policy, nor were drawn 
 out into such arbitrary consequences as among the Normans. 
 It seems therefore reasonable to imagine, that socage tenure ex- 
 isted in much the same state before the conquest as after ; that 
 in Kent it was preserved with a high hand, as our histories in- 
 form us it was ; and that the rest of the socage tenures dispersed 
 through England escaped the general fate of other property, 
 
276 OF THE MODERN ENGLISH TENURES. 
 
 partly out of favor and affection to their particular owners, and 
 partly from their own insignificancy : since I do not apprehend 
 the number of socage tenures soon after the Conquest to have 
 been very considerable, nor their value by any means large ; till 
 *86] by successive *charters of enfranchisement granted to the 
 tenants, which are particularly mentioned by Britton, their num- 
 ber and value began to swell so far, as to be made a distinct, and 
 justly envied, part of our English tenures. 
 
 However this may be, the tokens of their feudal original will 
 evidently appear from a short comparison of the incidents and 
 consequences of socage tenure with those of tenure of chivalry ; 
 remarking their agreement or difference as we go along. 
 
 r. In the first place, then, both were held of superior lords ; 
 one of the king, either immediately, or as lord paramount, and 
 (in the latter case) of a subject or mesne lord between the king 
 and his tenant. 
 
 2. Both were subject to the feudal return, render, rent, or ser- 
 vice of some sort or other, which arose from a supposition of an 
 original grant from the lord to the tenant. In the military ten- 
 ure, or more proper feud, this was from its nature uncertain ; in 
 socage, which was a feud of the improper kind, it was certain, 
 fixed, and determinate (though perhaps nothing more than bare 
 fealty), and so continues to this day. 
 
 3. Both were, from their constitution, universally subject 
 (over and above all other renders) to the oath of fealty, or mutual 
 bond of obligation between the lord and tenant. Which oath of 
 fealty usually draws after it suit to the lord's court. And this 
 oath every lord, of whom tenements are holden at this day, may 
 and ought to call upon his tenants to take in his court baron ; if 
 it be only for the reason given by Littleton, that if it be neg- 
 lected, it will by long continuance of time grow out of memory 
 (as doubtless it frequently hath done), whether the land be 
 holden of the lord or not ; and so he may lose his seignory, and 
 the profit which may accrue to him by escheats and other con 
 tingencies. 
 
 4. The tenure in socage was subject, of common right, to aids 
 *87] for knighting the son and marrying the eldest *daughter ; 
 which were fixed by the statute of Westm. i, c. 36, at 20s. t'oi 
 every 20/. per annum so held ; as in knight-service. These aids. 
 as ir tenure by chivalry, were originally mere benevolences 
 
OF THE MODERN ENGLIS V TENURES. 277 
 
 though afterwards claimed as matter of right ; but were all abol- 
 ished by the statute 12 Car. II. 
 
 5. Relief is due upon socage tenure, as well as upon tenure m 
 chivalry ; but the manner of taking it is very different. The 
 relief on a knight's fee was 5/., or one quarter of the supposed 
 value of the land ; but a socage relief is one year's rent or render, 
 payable by the tenant to the lord, be the same either great or 
 small : and therefore Bracton will not allow this to be propeily 
 a relief, but qucedam prcBstatio loco relevii in recognitionem do- 
 mini. So too the statute 28 Edw. I. c. i, declares, that a free 
 sokeman shall give nq relief, but shall double his rent after the 
 death of his ancestor, according to that which he hath used to 
 pay his lord, and shall not be grieved about measure. Reliefs 
 in knight-service were only payable, if the heir at the death of 
 his ancestor was of full age : but in socage they were due even 
 though the heir was under age, because the lord has no wardship 
 over him. The statuteof Charles II. reserves the reliefs incident 
 to socage tenures ; and therefore, wherever lands in fee-simple 
 are holden by a rent, relief is still due of common right upon the 
 death of a tenant. 
 
 6. Primer seizin was incident to the king's socage tenants in 
 capite, as well as to those by knight-service. But tenancy in 
 Mpite as well as primer seizins are, among the other feudal bur- 
 ':hens, entirely abolished by the statute. 
 
 7. Wardship is also incident to tenure in socage ; but of a 
 nature very different from that incident to knight-service. For 
 if the inheritance des.end to an infant under fourteen, the ward- 
 ship of him does not, nor ever did, belong to the lord of the fee ; 
 because in this tenure, no military or *other personal service [*88 
 being required, there was no occasion for the lord to take the 
 profits, in order to provide a proper substitute for his infant 
 tenant; but his nearest relation (to whom the inheritance cannot 
 descend) shall be his guardian in socage, and have the custody 
 of his land and body till he arrives at the age of fourteen. The 
 guardian must be such a one, to whom the inheritance by no 
 possibility can descend ; as was fully explained, together with the 
 reasons for it, in the former book of these Commentanes. At 
 fourteen this wardship in socage ceases ; and the heir may oust 
 the guardian and call him to account for the rents and profits : 
 for at this age the law supposes him capable of choosing a guard- 
 ian for himself. It was in this particular, of wardship, as also in 
 
2;8 OF THE MODERN ENGLISH TENURES. 
 
 that of marriage, and in the certainty of the render or seivice, 
 that the socage tenures had so much the advantage of the mili- 
 tary ones. But as the wardship ceased at fourteen, there was 
 this disadvantage attending it : that young heirs, being left at so 
 tender an age to choose their own guardians till twenty-one, 
 might make an improvident choice. Therefore, when almost all 
 the lands in the kingdom were turned into socage tenures, the 
 same statute 12 Car. II. c. 24, enacted, that it should be in the 
 power of any father by will to appoint a guardian, till his child 
 should attain the age of twenty-one. And, if no such appoint- 
 ment be made, the court of chancery will frequently interpose, 
 and name a guardian, to prevent an infant heir from improvident- 
 ly exposing himself to ruin. 
 
 8. Marriage, or the valor maritagii, was not in socage tenure 
 any perquisite or advantage to the guardian, but rather the re- 
 verse. For, if the guardian married his ward imder the age ol 
 fourteen, he was bound to account to the ward for the value of 
 the marriage, even though he took nothing for it, unless he mar- 
 ried him to advantage. For, the law in favor of infants is 
 always jealous of guardians, and therefore in this case it made 
 them account, not only for what they did^ but also for what they 
 *89] might, receive on the infant's behalf ; *lest by some collusion 
 the guardian should have received the value, and not brought it 
 to account ; but the statute having destroyed all values of mar- 
 riages, this doctrine of course hath ceased with them. At four- 
 teen years of age the ward might have disposed of himself in 
 marriage, without any consent of his guardian, till the late act 
 for preventing clandestine marriages. These doctrines of ward- 
 ship and marriage in socage tenures were so diametrically oppo- 
 r.ite to those in knight-service, and so entirely agree with those 
 parts of King Edward's laws, that were restored by Henry the 
 First's charter, as might alone convince us that socage was of 
 a higher original than the Norman Conquest. 
 
 9. Fines for alienation were, I aiprehend, due for lands 
 holden of the king in capite by socage tenure, as well as in case 
 of tenure by knight-service : for the statutes that relate to this 
 point, and Sir Edward Coke's comment on them, speak generally 
 of all tenants in capite, without making any distinction : but now 
 all fines for alienation are demolished by the statute of Charles 
 the Second. 
 
 10. Escheats are equally incident to tenure m socage, as 
 
OF THE MODERN ENGLISH TENURES. 279 
 
 they were to tenure by knight-service ; except only in gavel- 
 kind lands, which are (as is before mentioned) subject to no 
 escheats for felony, though they are to escheats for want of 
 heirs. 
 
 Thus much for the two grand species of tenure, under which 
 almost all the free lands of the kingdom were holden till the 
 Restoration in 1660, when the former w^as abolished and sunk 
 into the latter ; so that the lands of both sorts are now holden 
 by one universal tenure of free and common socage. 
 
 The other grand division of tenure, mentioned by Bracton 
 as cited in the preceding chapter, is that of villenage, as contra- 
 distinguished from liberum tenementum, or frank tenure. And 
 this (we may remember) he subdivided into two classes, pure 
 and privileged villenage : from whence have arisen two other 
 species of our modern tenures. 
 
 *III. From the tenure of pure villenage have sprung [*9d' 
 our present copyhold tenures, or tenure by copy of court roll at 
 the will of the lord : in order to obtain a clear idea of which, it 
 will be previously necessary to take a short view of the original 
 and nature of manors. 
 
 Manors are in substance as ancient as the Saxon constitu•^ 
 tion, though perhaps different a little, in some immaterial circum- 
 stances, from those that exist at this day ; just as we observed 
 of feuds, that they were partly known to our ancestors, even 
 before the Norman Conquest. A manor, manerium a manendc, 
 because the usual residence of the owner, seems to have been a 
 district of ground, held by lords or great personages ; who kept 
 in their own hands so much land as was necessary for the use 
 of their families, which were called terrce dominicales ox demesne 
 lands ; being occupied by the lord, or dominus manerii, and his 
 servants. The other, or tenemen tal lands , they distributed 
 among their tenants ; which from the different modes of tenure 
 were distinguished by two different names. First, book-land, or 
 charter land, which was held by deed under certain rents and 
 free-services, and in effect differed nothing from the free-socage 
 lands ; and from hence have arisen most of the freehold tenants 
 who hold of particular manors, and owe suit and service to the 
 same. The other species was called folkjand^ which was held 
 by no assurance in writing, but distributed among the common 
 folk or people at the pleasure of the lord, and resumed at his 
 discretion ; being indeed land held in villenage, which we shall 
 
28o OF THE MODERN ENGLISH TENURES. 
 
 presentl}' describe more at large. The residue of the manoi 
 being uncultivated, was termed the lord's waste, and served for 
 public roads, and for common or pasture to the lord and his 
 tenants. Manors were formerly called baronies, as they are still 
 lordships : and each lord or baron was empowered to hold a 
 domestic court, called the court-baron, for redressing misdemean- 
 ors and nuisances within the manor ; and for settling disputes 
 of property among the tenants. This court is an inseparable 
 *91] ingredient of every manor ; and if the number *of suitors 
 should so fail as not to leave sufficient to make a jury or homage, 
 that is, two tenants at least, the manor itself is lost. 
 
 In the early times of our legal constitution, the king's greater 
 barons, who had a large extent of territory held under the 
 crown, granted out frequently smaller manors to inferior persons 
 to be holden of themselves : which do therefore now continue to 
 be held under a superior lord, who is called in such cases the 
 lord paramount over all these manors ; and his seignory is fre- 
 quently termed an honor, not a manor, especially if it hath 
 belonged to an ancient feudal baron, or hath been at any time in 
 the hands of the crown. In imitation whereof these inferior 
 lords began to carve out and grant to others still more minute 
 estates, to be held as of themselves, and were so proceeding 
 downwards in infinitum : till the superior lords observed, that 
 by this method of subinfeudation they lost all their feudal profits 
 of wardships, marriages, and escheats, which fell into the hands 
 of these mesne or middle lords, who were the immediate superi- 
 ors of the terre-tenant, or him who occupied the land : and also 
 that the mesne lords themselves were so impoverished thereby, 
 that they were disabled from performing their services to their 
 own superiors. This occasioned, first, that provision in the 
 thirty-second chapter of magna charta, g Hen. III. (which is not 
 to be found in the first charter granted by that prince, nor in 
 the great charter of King John) that no man should either give 
 or sell his land, without reserving sufficient to answer the 
 demand of his lord ; and afterwards the statute of Westm. 3, 
 or guia emptores, 18 Edw. I. c. 1. which directs, that, upon all 
 sales or feoffments of land, the feoffee should hold the same, 
 not of his immediate feoffor, but of the chief lord of the fee, of 
 whom such feoffor himself held it. But these provisions, not 
 extending to the king's own tenants in capite, the like law con- 
 cernmg them is declared by the statutes of prerogativa regis 
 
OF THE MODERN ENGLISH TENURES. 281 
 
 17 Edw. II. c. 6, and of 34 Edw. III. c. 15, by which kst all 
 subinfeudations, previous to the reign of King *Edward I., [*92 
 were confirmed : but all subsequent to that period were left open 
 to the king's prerogative. And from hence it is clear, that all 
 manors existing at this day, must have existed as early as King 
 Edward the First : for it is essential to a manor, that there be 
 tenants who hold of the lord ; and by the operation of these 
 statutes, no tenant in capite since the accession of that prince, 
 and no tenant of a common lord since the statute of quia etnp- 
 tores, could create any new tenants to hold of himself. 
 
 Now with regard to the folk-land, or estates held in villenage, 
 this was a species of tenure neither strictly feudal, Norman, or 
 Saxon ; but mixed and compounded of them all : and which also, 
 on account of the heriots that usually attend it, may seem to 
 have somewhat Danish in its composition. Under the Saxon 
 government there were, as Sir William Temple speaks, a sort of 
 people in a condition of downright servitude, used and employed 
 in the most servile works, and belonging, both they, their chil- 
 dren and effects, to the lord of the soil, like the rest of the cattle 
 or stock upon it. These seem to have been those who held 
 what was called the folk-land, from which they were removable 
 at the lord's pleasure. On the arrival of the Normans here, it 
 seems not improbable, that they who were strangers to any 
 other than a feudal state, might give some sparks of enfranchise- 
 ment to such wretched persons as fell to their share, by admit- 
 ting them, as well as others, to the oath of fealty ; which con- 
 ferred a right of protection, and raised the tenant to a kind of 
 estate superior to downright slavery, but inferior to every other 
 condition. This they called villenage, and the tenants villeins, 
 either from the word vilis, or else, as Sir Edward Coke tells us, 
 a villa; because they lived chiefly in villages, and were em- 
 ployed in rustic works of the most sordid kind : resembling the 
 Spartan helotes, to whom alone the culture of the lands was con- 
 signed ; their rugged masters, like our northern ancestors, es- 
 teeming war the only honorable employment of mankind. 
 
 *These villeins, belonging principally to lords of manors, [*93 
 weie either villeins regardant, that is, annexed to the manor or 
 land : or else they were in gross, or at large, that is annexed to the 
 person of the lord and transferable by deed from one owner to 
 another. They could not leave their lord without h's permis- 
 
282 OF THE MODERN E. \fGLISH TEXURES. 
 
 sion ; but if the}- ran away, or were purloined from him, might 
 be claimed and recovered by action, like beasts or other chattels. 
 They held indeed small portions of land by way of sustaining 
 themselves and families ; but it was at the mere will of the lord, 
 who might dispossess them whenever he pleased ; and it was 
 upon villein services, that is, to carry out dung, to hedge and 
 ditch the lord's demesnes, and any other the meanest offices : 
 and their services were not only base, but uncertain both as to 
 their time and quantity. A villein, in short, was in much the 
 same state with us, as Lord Molesworth describes to be that of 
 the boors in Denmark, and which Stiernhook attributes also to 
 the traals or slaves in Sweden ; which confirms the probability 
 of their being in some degree monuments of the Danish tyranny. 
 A villein could acquire no property either in lands or goods : 
 but, if he purchased either, the lord might enter upon them, 
 oust the villein, and seize them to his own use, unless he con- 
 trived to dispose of them again before the lord had seized them; 
 for the lord had then lost his opportunity. 
 
 In many places also a fine was payable to the lord, if the 
 villein presumed to marry his daughter to any one without leave 
 from" the lord, and, by the common law, the lord might also bring 
 an action against the husband for damages in thus purloining 
 his property. For the children of villeins were also in the same 
 *94] state of bondage with their *parents ; whence they were 
 called in Latin, nativi, which gave rise to the female appella- 
 tion of a villein, who was called a neife. In case of a marriage 
 between a freeman and a neife, or a villein and a freewoman, the 
 issue followed the condition of the father, being free if he was 
 free, and villein if he was villein ; contrary to the maxim of the 
 civil law, that partus sequitur ventrem. But no bastard could 
 be born a villein, because of another maxim in our law, he is 
 nullius filius : and as he can £^am nothing by inheritance, it 
 were hard that he should lose his natural freedom by it. The 
 law however protected the persons of villeins, as the king's sub- 
 jects, against atrocious injuries of the lord : for he might not 
 kill, or maim his villein ; though he might beat him with im- 
 punity, since the villein had no action or remedy at law against 
 his lord, but in case of the murder of his ancestor, or the maim 
 of his own person. Neifes indeed had also an appeal of rape in 
 case the lord violated them by force. 
 
OF THE MODERN ENGLISH TENURES. 283 
 
 Villeins might be enfranchised by manumission, which is 
 either express or implied : express, as where a man granted to 
 the villein a deed of manumission : implied, as where a man 
 bound himself in a bond to his villein for a sum of money, 
 granted him an annuity by deed, or gave him an estate in fee, 
 for life or years ; for this was dealing with his villein on the 
 footing of a freeman ; it was in some of the instances giving him 
 an action against his lord, and in others vesting in him an own- 
 ership entirely inconsistent with his former state of bondage. 
 So also if the lord brought an action against his villein, this en- 
 franchised him ; for^ as the lord might have a short remedy 
 against his villein, by seizing his goods (which was more than 
 equivalent to any damages he could recover), the law which is 
 always ready to catch at any thing in favor of liberty, pre- 
 sumed that by bringing this action he meant to set his villein on 
 the same footing with himself, and therefore held it an implied 
 •manumission. But, in case the lord indicted him for [*95 
 felony, it was otherwise ; for the lord could not inflict a capital 
 punishment on his villein, without calling in the assistance of 
 the law. 
 
 Villeins, by these and many other means, in process of time 
 gained considerable ground on their lords ; and in particular 
 strengthened the tenure of their estates to that degree, that they 
 came to have in them an interest in many places full as good, in 
 others, better than their lords. For the good-nature and benevo- 
 lence of many lords of manors having, time out of mind, per- 
 mitted their villeins and their children to enjoy their possessions 
 without interruption, in a regular course of descent, the common 
 law, of which custom is the life, now gave them title to prescribe 
 against their lords ; and, on performance of the same service, to 
 hold their lands, in spite of any determination of the lord's will. 
 For though in general they are still said to hold their estates at 
 the will of the lord, yet it is such a will as is agreeable to 
 the custom of the manor ; which customs are preserved and 
 evidenced by the rolls of the several courts baron in which they 
 are entered, or kept on foot by the constant immemorial usage of 
 the several manors in which the lands lie. And, as such tenants 
 had nothing to show for their estates but these customs, and 
 admissions in pursuance of them, entered on those rolls, or the 
 copies of such entries witnessed by the steward, they now began 
 
284 OF THE MODERN ENGLISH TENURES. 
 
 to be called tenants by copy of court-roll, and their tenure itself a 
 copy he Id. \ 
 
 In some manors, where the custom has been to permit the 
 heir to succeed the ancestor in his tenure, the estates are styled 
 copyholds of inheritance ; in others, where the lords have been 
 more vigilant to maintain their rights, they remain copyholds for 
 life only : for the custom of the manor has in both cases so far 
 superseded the will of the lord, that, provided the services be 
 performed or stipulated for by fealty, he cannot, in the iirst in- 
 stance, refuse to admit the heir of his tenant upon his death, nor, 
 in the second, can he remove his present tenant so long as 
 he lives, though he holds nominally by the precarious tenure of his 
 lord's will. 
 
 Thus much for the ancient tenure of pure villenage, and the 
 modern one of copyhold at the will of the lord, which is lineally 
 descended from it. 
 
 IV. There is yet a fourth species of tenure, described by 
 • Bracton under the name sometimes of privileged villenage, and 
 sometimes of villein-socage. This, he tells us, is such as has been 
 *99] held of the kings of England from the Conquest *downwards ; 
 that the tenants herein " villana faciunt servitia, sed certa et de- 
 terminata ; " that they cannot alien or transfer their tenements 
 by grant or feoffment, any more than pure villeins can : but must 
 surrender them to his lord or his steward, to be again granted out, 
 and held in villenage. And from these circumstances we may 
 collect, that what he here describes is no other than an exalted 
 species of copyhold, subsisting at this day, viz., the tenure in 
 ancient demesne; to which, as partaking of the baseness of 
 villenage in the nature of its services, and the freedom of socage 
 in their certainty, he has therefore given a name compounded out 
 of both, and calls it villanum socagium. 
 
 Ancient demesne consists of those lands or manors, which, 
 though now perhaps granted out to private subjects, were 
 atctually in the hands of the crown in the time of Edward 
 the Confessor, or William the Conqueror ; and so appear to have 
 been by the great suVvey in the exchequer called domesday- 
 book. The tenants of these lands, under the crown, were not all 
 of the same order or degree. Some of them, as Britton testifies, 
 continued for a long time pure and absolute villeins, dependent 
 
 t As to copyholds, see 50 & 51 Vict. c. 73 [1887]. 
 
OF THE MODERN ENGLISH TENURES. 285 
 
 on the will of the lord : and those who have succeeded them in 
 their tenures now differ from common copyholders in only a few 
 points. Others were in a great measure enfranchised by the 
 royal favor : being only bound in respect of their lands to perform 
 some of the better sort of villein-services, but those determinate 
 and certain : as, to plough the king's land for so many days, to 
 supply his court with such a quantity of provisions, or other 
 stated services ; all of which are now changed into pecuniary 
 rents : and in consideration hereof they had many immunities 
 and privileges granted to them ; as to try the right of their prop- 
 erty in a peculiar court of their own, called a court of ancient 
 demesne, by a peculiar process, denominated a writ of right close; 
 not to pay toll or taxes ; not to contribute to the expenses 
 of knights of the shire ; not to be put on juries ; and the like. 
 
 *These tenants therefore, though their tenure be abso- [*I99 
 lutely copyhold, yet have an interest equivalent to a freehold : for 
 notwithstanding their services were of a base and villenous origi- 
 nal, yet the tenants were esteemed in all other respects to be 
 highly privileged villeins ; and especially for that their services 
 were fixed and determinate, and that they could not be compelled 
 (like pure villeins) to relinquish these tenements at the lord's will, 
 or to hold tbem against their own. 
 
 Thus have we taken a compendious view of the principal and 
 fundamental points of the doctrine of tenures, both ancient and 
 modern, in which we cannot but remark the mutual connection 
 and dependence that all of them have upon each other. And 
 upon the whole it appears, that whatever changes and alterations 
 these tenures have in process of time undergone, from the Saxon 
 era to 12 Car. II. all lay tenures are now in effect reduced to two 
 species ; free tenure in common socage, and base tenure by copy 
 of court-roll. 
 
 I mentioned lay tenures only ; because there is still behind 
 one other species of tenure, reserved by the statute of Charles II., 
 which is of a spiritual nature, and called the tenure in frankal- 
 moign. 
 
 V. Tenure va. frankalmoign, in libera eleemosyna, or free alms, 
 is that, whereby a religious corporation, aggregate or sole, hoid- 
 eth lands of the donor to them and their successors forever. The 
 service which they were bound to render for these lands was not 
 
286 OF THE MODERN ENGLISH TENURES. 
 
 certainly defined ; but only in general to pray for the soul of the 
 donor and his heirs, dead or alive ; and therefore, they did no 
 fealty (which is incident to all other services but this), because 
 this divine service was of a higher and . more exalted nature. 
 This is the tenure, by which almost all the ancient monasteries 
 and religious houses held their lands ; and by which the parochial 
 clergy, and very many ecclesiastical and eleemosynary founda- 
 tions, hold them at this day ; the nature of the service being 
 upon the reformation altered, and made conformable to the purei 
 *102] doctrines *of the church of England. It was an old Saxon 
 tenure ; and continued under the Norman revolution, through the 
 great respect that was shown to religion and religious men in 
 ancient times. Which is also the reason that tenants in frankal- 
 moign were discharged of all other services, except the trinoda 
 necessitas, of repairing the highways, building castles, and repelling 
 invasions : just as the Druids, among the ancient Britons, had 
 omnium rerum immunitatem. And, even at present, this is a 
 tenure of a nature very distinct from all others ; being not in the 
 least feudal, but merely spiritual. For if the service be neglected, 
 the law gives no remedy by distress or otherwise to the lord of 
 whom the lands are holden : but merely a complaint to the ordi- 
 nary or visitor to correct it. Wherein it materially differs from 
 what was called tenure by divine service : in which the tenants 
 were obliged to do some special divine services in certain ; as to 
 sing so many masses, to distribute such a sum in alms, and the 
 like ; which, being expressly defined and prescribed, could with 
 no kind of propriety be called free alms ; especially as for this, if 
 unperformed, the lord might distrain, without any complaint to 
 the visitor. All such donations are indeed now out of use : for, 
 since the statute of guia emptores, i8 Edw. I., none but the king 
 can give lands to be holden by this tenure. So that I only men- 
 tion them, hQcaxLse frankalmoign is excepted by name in the stat- 
 ute of Charles II. and therefore subsists in many instances at this 
 day. Which is all that shall be remarked concerning it : here- 
 with concluding our observations on the nature of tenures.' 
 
 1 The system of feudal tenures has either been expressly abolished by 
 legislation in this country, or has become practically obsolete, and estates in 
 real property are not held of the grantor by any relation of tenure, or undef 
 any of the feudal obligations incident thereto. All lands are allodial, and 
 the entire and absolute property therein is vested in the owners, according 
 
OF FREEHOLD ESTATES, ETC. 28; 
 
 CHAPTER VII. 
 
 [bL. COMM. BOOK II. CH. VII.] 
 
 Of Freehold Estates of Inheritance. 
 
 The next objects of our disquisitions are the nature and prop' 
 erties oi estates. An estate in lands, tenements, and heredita- 
 ments, signifies such interest as the tenant has therein: so that 
 if a man grants all hj.s estate in Dale to A and his heirs, every 
 thing that he can possibly grant shall pass thereby.^ It is called 
 to the nature of their respective estates; so that, as Chancellor Kent says : 
 " By one of those singular revolutions, incident to human affairs, allodial 
 estates, once universal in Europe, and then almost universally exchanged for 
 feudal tenures, have now, after the lapse of many centuries, regained their 
 primitive estimation in the minds of freemen." (Kent's Com. iii. S'3-) 
 Bat it is nevertheless true that many of the fundamental principles of our 
 law of real estate are derived from the feudal system, which it is therefore 
 of essential importance to understand ; the nature and connection of the 
 various estates in laud which may be created, the modes of their creation, 
 the rights and obligations incident to their acquisition, etc., are, to a large 
 extent, the outgrowth of principles of feudal origin, and the rise and pro- 
 gressive development of real estate law are, therefore, to be traced histori- 
 cally from that early peqod in which this system constituted the foundation 
 of the structure of society. But even in this country, the owner of land 
 stands in a relation to the State which corresponds, in some degree, to feudal 
 tenure ; for whenever the title to land fails, through defect of heirs, the 
 land reverts by escheat to the State, which therefore occupies, so far as the 
 doctrine of reverter is concerned, the position of paramount lord. Each 
 State, in its right of sovereignty, is deemed to possess the original and ulti- 
 mate property in all the lands included within its jurisdiction. But the doc- 
 trine of escheat is not in reality an element of the feudal law which has re- 
 mained in force, while other parts have become obsolete, but rather a right 
 established in modern jurisprudence, which is similar to the feudal doctrine 
 formerly in force. So the duty of allegiance to the State, and the right of 
 eminent domain, are sometimes said to be of feudal origin ; but allegiance 
 does not depend upon the ownership of land, but is obligatory upon every 
 citizen, and eminent domain does not depend upon any form of tenure, but 
 is grounded upon principles of public policy, and results from the sovereignty 
 of the State. 
 
 1 This legal use of the word " estate " must be distinguished from its 
 ordinary popular signification, by which it denotes the extent or amount of a 
 man's real property. Thus when it is said that a man has a large estate, it 
 is commonly meant that his land is of large territorial extent. But in law 
 estate denotes the interest which a man has in real property. 
 
288 OF FREEHOLD ESTATES 
 
 in Latin status ; it signifying the condition, or circumstance, in 
 which the owner stands in regard to his property. And to ascer- 
 tain this with proper precision and accuracy, estates may be con- 
 sidered in a threefold view : first, with regard to the quantity of 
 interest which the tenant has in the tenement: secondly, with 
 regard to the time at which that quantity of interest is to be en- 
 joyed: and, thirdly, with regard to the number and connections 
 of the tenants. 
 
 First, with regard to the quantity of interest which the tenant 
 has in the tenement, this is measured by its duration and extent. 
 Thus, either his right or possession is to subsist for an uncertain 
 period, during his own life, or the life of another man : to deter- 
 mine at his own decease, or to remain to his descendants after 
 him : or it is circumscribed within a certain number of years, 
 months, or days : or, lastly, it is infinite and unlimited, being 
 vested in him and his representatives forever. And this occa- 
 *104] sions the primary division of *estates into such as are 
 freehold, and such as are less than freehold. 
 
 An estate of freehold, liberum tenementum, or frank-tenement, 
 is defined by Britton to be " the possession of the soil by a free- 
 man." And St. Germyn tells us, that "the possession of the 
 land is called in the law of England the frank-tenement or free- 
 hold." Such estate, therefore, and no other, as requires actual 
 possession of the land, is, legally s-^&-a}«\x\g, freehold : which actual 
 possession can, by the course of the common law, be only given 
 by the ceremony called livery of seizin, which is the same as the 
 feudal investiture. And from these principles we may extract 
 this description of a freehold ; that it is such an estate in lands 
 as is conveyed by livery of seizin, or in tenements of any incor- 
 poreal nature, by what is equivalent thereto. And accordingly it 
 is laid down by Littleton, that where a freehold shall pass, it be- 
 hoveth to have livery of seizin. As, therefore, estates of inherit- 
 ance and estates for life could not by common law be conveyed 
 , without livery of seizin, these are properly estates of freehold ; 
 and, as no other estates are conveyed with the same solemnity, 
 therefore no others are properly freehold estates.*" 
 
 Estates of freehold (thus understood) are either estates of 
 inheritance, or estates not of inheritance. The former are again 
 
 2 As to the nature of the ancient ceremony, livery of seizin, .see page 461 
 
OF INHERITANCE. 289 
 
 divided into inheritances absolute or fee-simple ; and inheritances 
 limited, one species of which we usually call fee-tail. 
 
 I. Tenant in fee-simple (or, as he is frequently styled, tenant 
 in fee) is he that hath lands, tenements, or hereditaments, to 
 hold to him and his heirs for ever : generally, absolutely, and 
 simply ; without mentioning what heirs, but referring that to his 
 own pleasure, or to the disposition of the law. The true mean- 
 ing of the word fee {Jeodmn) is the same with that of feud or 
 fief, and in its original sense it is *taken in contradistinc- [*105 
 tion to allodium; which latter the writers on this subject define 
 to be every man's ovtn land, which he possesseth merely in his 
 own right, without owing any rent or service to any superior. 
 This is property in its highest degree ; and the owner thereof 
 hath absolutum et directum dominium, and therefore is said to be 
 seized thereof absolutely in dominico suo, in his own demesne. 
 '^vX feodum, or fee, is that which is held of some superior, on con- 
 dition of rendering him service ; in which superior the uUimate 
 property of the land resides. And therefore Sir Henry Spelman 
 defines a feud or fee to be the right which the vassal or tenant 
 hath in lands, to use the same, and to take the profits thereof to 
 him and his heirs, rendering to the lord his due services : the 
 mere allodial property of the soil always remaining in the lord. 
 This allodial property no subject in England has ; it being a 
 received, and now undeniable, principle in the law, that all the 
 lands in England are holden mediately or immediately of the 
 king. The king therefore only hath absolutum et directum 
 dominium : but all subjects' lands are in the n*ure oi feodum 01 
 fee ; whether derived to them by descent from their ancestors, 
 or purchased for a valuable consideration : for they cannot come 
 to any man by either of those ways, unless accompanied 
 with those feudal clogs which were laid upon the first feudatory 
 wlien it was originally granted. A subject therefore hath only 
 the usufruct, and not the absolute property of the soil ; or, as 
 Sir Edward Coke expresses it, he hath dominium utile, but not 
 dominium directum. And hence it is, that, in the most solemn 
 acts of law, we express the strongest and highest estate that any 
 subject can have, by these words : " he is seized thereof in his 
 demesne, as of fee" It is a man's demesne, dominicum, or prof)- 
 erty, since it belongs to him and his heirs for ever : yet this 
 dominicum, property, or demesne, is strictly not absolute or 
 
290 OF FREEHOLD ESTATES , 
 
 allodial, but qualified or feudal : it is his demesne, as \f fee ; 
 chat iS; it is not purely and simply his own, since it is held of a 
 Superior lord, in whom the ultimate property resides. 
 *106] *This is the primary sense and acceptation ot the 
 ^ordfee. But (as Sir Martin Wright very justly observes) the 
 doctrine, " that all lands are holden," having been so for many 
 ages a fixed and undeniable axiom, our English lawyers do very 
 rarely (of late years especially) use the word fee in this its pri- 
 mary original sense, in contradistinction to allodium or absolute 
 property, with which they have no concern ; but generally use it 
 to express the continuance or quantity of estate. A fee, there- 
 fore, in general, signifies an estate of inheritance;, being the 
 highest and most extensive interest that a man can have in a feud : 
 and when the term is used simply, without any other adjunct, 
 or has the adjunct of simple annexed to it (as a fee, or a fee- 
 simple), it is used in contradistinction to a fee conditional at the 
 common law, or a fee-tail by the statute ; importing an absolute 
 inheritance, clear of any condition, limitation, or restrictions to 
 particular heirs, but descendible to the heirs general whether male 
 or female, lineal or collateral. And in no other sense than this is 
 the king said to be seized in fee, he being the feudatory of no 
 man. 
 
 Taking therefore fee for the future, unless where otherwise 
 explained, in this its secondary sense, as an estate of inheritance, 
 it is applicable to, and may be had in, any kind of hereditaments 
 either corporeal or incorporeal. But there is this distinction 
 between the two«species of hereditaments : that, of a corporeal 
 inheritance a man shall be said to be seized in his- demesne, as 
 of fee ; of an incorporeal one, he shall only be said to be seized 
 as of fee, and not in his demesne. For, as incorporeal heredit- 
 aments are in their nature collateral to, and issue out of, lands 
 and houses, their owner hath no property, dominicum, or de- 
 mesne, in the thing itself, but hath only something derived out 
 of it ; resembling the servitutes, or services, of the civil law. 
 •107] The domi7iicum or property is frequently *in one man, 
 while the appendage or service is in another. Thus Caius may 
 be seized as of fee of a way leading over the land, of whicn 
 Titius is seized in his demesne as of fee. 
 
 The fee-simple or inheritance of lands and tenements is 
 generally vested and resides in some person or other; though 
 
OF INHERITANCE. 291 
 
 divers inferior estates may be carved out of it. As if one 
 grants a lease for twenty-one years, or for one or two lives, th* 
 fee-simple remains vested in him and his heirs ; and after the 
 determination of those years or lives, the land reverts to the 
 grantor or his heirs, who shall hold it again in fee-simple. Yet 
 sometimes the fee may be in abeyance, that is (as the word 
 signifies), in expectation, remembrance, and contemplation ir 
 law ; there being no person in esse, in whom it can vest and 
 abide : though the law considers it as always potentially existing, 
 and ready to vest whenever a proper owner appears. Thus, in a 
 grant to John for li£e, and afterwards to the heirs of Richard, 
 the inheritance is plainly neither granted to John nor Richard, nor 
 can it vest in the heirs of Richard till his death, nam nemo est 
 kceres viventis .-it remains therefore in waiting or abeyance, during 
 the life of Richard.' This is likewise always the case of a parson 
 of a church, who hath only an estate therein for the term of his 
 life ; and the inheritance remains in abeyance. And not only 
 the fee, but the freehold also, may be in abeyance ; as, when a 
 parson dies, the freehold of his glebe is in abeyance, until a 
 successor be named, and then it vests in the successor. 
 
 The word " heirs " is necessary in the grant or donation, in 
 order to make a fee, or inheritance. For if land be given to a 
 man for ever, or to him and his assigns for ever, this vests in him 
 but an estate for life.* This very great nicety, about the in- 
 sertion of the word " heirs," in all feoffments and grants, in order 
 
 8 This estate limited to the heirs of Richard is what is known as a con- 
 tingent remainder, (a subject to be hereafter considered.) The ancient doc- 
 trine that the seizin was in abeyance in such a case is not now maintained, 
 but the more reasonable view is taken that the inhei itance remains in the 
 grantor until some person arises by the death of Richard answering the 
 description given, and so capable of taking under the grant. 
 
 So, in the other instances mentioned, the doctrine of abeyance is now 
 discarded. (See WallacJi v. l^an RiswUk, 92 Q. S. 202.) 
 
 * In England and in many American States, the rule, requiring the use o( 
 the word " heirs," in a conveyance by deed, has been changed by statute. 
 Thus, in New York, it is declared that every grant or devise of real estate, 
 or any interest therein, shall pass all the estate or interest of the grantor ir 
 testator, unless the intent to pass a less estate or interest shall appear by 
 express terms, or be necessarily implied in the terms of such grant. ( i Rev. 
 St. 748.) But wherever statutes of this kind have not been enacted the 
 common law still remains in force; and in all the States the general practice 
 is to use the word " heirs," whether required or not. 
 
292 OF FREEHOLD 'EST A TES 
 
 to vest a fee, is plainly a relic of the feudal strictness ; by which 
 *i08] we may remember it was required *that the form of the 
 donation should be punctually pursued ; or that, as Cragg expres- 
 ses it in the words of Baldus, " donationes sint stricti juris, nt 
 quis plus donasseprczsumaturquam in donatione expresserit." And 
 therefore, as the personal abilities of a donee were originall) '■ 
 supposed to be the only inducements to the gift, the donee's j 
 estate in the land extended only to his own person, and subsisted' 
 no longer than his life ; unless.the donor, by an express provis- 
 ion in the grant, gave it a longer continuance, and extended it 
 also to his heirs. But this rule is now softened by many excep- 
 tions. 
 
 For, I. It does not extend to devises by will ; in which, as 
 they were introduced at the time when the feudal rigor was 
 apace wearing out, a more liberal construction is allowed ; and 
 therefore by a devise to a man for ever, or to one and his assigns 
 for ever, or to one in fee-simple, the devisee, hath an estate of 
 inheritance ; for the intention of the devisor is sufficiently plain 
 from the words of perpetuity annexed, though he hath omitted 
 the legal words of inheritance. But if the devise be to a man 
 and his assigns, without annexing words of perpetuity, there the 
 devisee shall take only an estate for life ; for it does not appear 
 that the devisor intended any more.° 2. Neither does this rule 
 extend to fines or recoveries considered as a species of convey- 
 ance ;'for thereby an estate in fee passes by act and- operation of 
 law without the word heirs," as it does also, for particular 
 reasons, by certain other methods of convej'-ance, which have 
 relation to a former grant or estate, wherein the word "heirs" 
 was expressed. 3. In creations of nobility by writ, the peer so 
 created hath an inheritance in his title, without expressing the 
 word " heirs ;" for heirship is implied in the creation, unless it be 
 otherwise specially provided : but in creations by patent, which 
 are stricti juris, the word " heirs " must be inserted, otherwise 
 there is no inheritance. 4. In grants of lands to sole corporations 
 
 ^ A recent English statute provides that a conveyance shall pass all the 
 right, title, and interest of the grantor in the property conveyed, so far as a 
 contrary intention is not expressed. (44 & 45 Vict. c. 41, s. 63.) A like 
 statute as to wills was enacted in 1837. Similar statutes have been passed in 
 a number of the American States. (See last note.) 
 
 •In regard to " fines " and "recoveries," see pages 486-498. 
 
OF INHERITANCE. 293 
 
 and their successors, the word " successors " supplies the place of 
 " heirs ; " for as heirs take from the ancestor, so doth the succes- 
 sor from the predecessor. Nay, in *a grant to a bishop [*109 
 or other sole spiritual corporation, in frankalmoign ; the word 
 "frankalmoign " supplies the place of " successors " (as the word 
 " successors" supplies the place of "heirs ") ex vi termini ; and 
 in all these cases a fee-simple vests in such sole corporation. 
 But, in a grant of lands to a corporation aggregate, the word 
 " successors " is not necessary, though usually inserted ; for, 
 albeit such simp .e grant be strictly only an estate for life, yet 
 as that corporation never dies, such estate for life is perpetual or 
 equivalent to a fee simple, and therefore the law allows it to be 
 one. 5. Lastly, in the case of the king, a fee-simple will vest in 
 him, without the word " heirs " or " successors " in the grant ; 
 partly from prerogative royal, and partly from a reason similar to 
 the last, because the king in judgment of law never dies. But 
 the general rule is, that the word " heirs " is necessary to create 
 an estate of inheritance.' 
 
 II. We are next to consider limited fees, or such estates of 
 inheritance as are clogged and confined with conditions, or qual- 
 ifications of any sort. And these we may divide into two sorts ; 
 I. Qualified, or base fees ; and, 2. Fees conditional, so called at 
 the common law; and afterwards iees-tail, in consequence of the 
 statute dedonis. 
 
 ' In a conveyance of an estate in fee-simple, no provision proiiibiting the 
 free transfer or alienation of the property by the grantee, will be of any va- 
 lidity. The power of disposition is inseparably connected with such estates. 
 But if the restriction be only in regard to transfer to a f>articular person, or 
 for a certain limited time, it may be valid. So conditions restricting the 
 use of the premises to a certain extent, may be valid ; as, by prohibiting the 
 erection of buildings of a particular kind, or the creation or allowance of 
 nuisances upon the premises. Thus, conditions that a school-house should 
 aot be erected upon the premises, or a distillery, or a blast-furnace, or a livery- 
 stable, or a machine-shop, or a powder magazine, or a hospital, have been 
 held t; be valid restrictions. (See Plumb v. Tubbs, 41 N. Y. 442, and cases 
 cited; also 100 U. S. 55 ; 6 N. Y. 467 ; 47 N. H. 396; 29 Mich. 78.) 
 
 Originally, at common law, lands owned in fee-simple could not be applied 
 to the payment of the owner's debts. But this power was given in England 
 by an early statute (13 Edw. I. c.' 18) ; and in this country it is now a univer- 
 sally established rule, that the lands of the owner may be taken for the. pay- 
 ment of his debts, either during his life or after his decease. Personal property, 
 however, is first devoted to this purpose, and the realty afterwards. " There 
 are statutes on this subject in the several States. (See/o.f/, page 817.) 
 
294 OF FREEHOLD ESTATES 
 
 I. A base, or qualified fee, is such a one as hath a quaiifica 
 tion subjoined thereto, and which must be determined whenevei 
 the qualification annexed to it is at an end. As in the case of a 
 grant to A. and his heirs, tenants of the manor of Dale ; in this 
 instance, whenever the heirs of A. cease to be tenants of that 
 manor, the grant is entirely defeated. So when Henry VI. 
 granted to John Talbot, lord of the manor of Kingston-Lisle in 
 Berks, that he and his heirs, lords of the said manor, should be 
 peers of the realm, by the title of Barons of Lisle ; here John 
 Talbot had a base or qualified fee in that dignity, and, the instant 
 he or his heirs quitted the seignory of this manor, the dignity was 
 •110] at an end. This *estate is a fee, because by possibility it 
 may endure for ever in a man and his heirs ; yet as that duration 
 depends upon the concurrence of collateral circumstances, which 
 qualify and debase the purity of the donation, it is therefore a 
 qualified or base fee.* 
 
 * These " base," " qualified," or " determinable " fees, as they are called, 
 assume various forms. Thus, there may be a fee upon condition, as if an 
 estate be given to A and his heirs, provided that he shall erect a warehouse 
 upon the premises within a certain time. If the condition is not complied 
 with, the grantor or his heirs may re-enter or (what is now usually the equiv- 
 alent practice) bring an action of ejectment to recover possession. If this 
 i,i not done, A's estate will continue. (See Nicolly. Erie R. R. Co., 12 N. 
 Y. 121.) Secondly, there may be a fee upon limitation, as. if an estate be 
 givsn to A and his heirs until B returns from Rome. If, in such a case, B 
 ever returns from Rome, A's estate is at once defeated, no re-entry or action 
 being necessary to recover possession. But if B never returns, the estate in 
 A and his heirs becomes absolute. Conditions are created by hypothetical 
 or conditional expressions, or words in the nature of a proviso ; limitations 
 by words of time, as until, as long as, during, etc. " Where an estate is so 
 expressly limited by the words of its creation, that it cannot endure for any 
 longer time than until the contingency happens upon which the estate is to fail, 
 this is a limitation. On the other hand, when an estate is expressly granted 
 upon condition in deed, the law permits it to eufdure beyond the time of the 
 contini^ency happening, unless the grantor takes advantage of the breach of 
 conditionby making entry, etc." (Crabb on Real Property, §2135.) Thirdly, 
 there may be an estate upon conditional limitation, which partakes of the char- 
 acteristics of both the other classes of qualified fees. An illustration would be 
 an estate given to A and his heirs, but if B returns from Rome, then to C and 
 his heirs. If, in such a case, B should return from Rome, the estate would at 
 once pass to C without any re-entry. Estates upon conditional limitation did 
 not exist at common law, since, by its rules, a fee could not be limited after 
 a fee, but were introduced afterwards, as one of the results of the doctrine of 
 uses, to be hereafter considered. (See Church Proprietors v. Grant, 3 
 Gray, 142, 147.; also 14 Gray, 586, 612 ; 16 Me. 158 ; 18 N. Y. 96.) 
 
OF INHERITANCE. 295 
 
 2. A conditional fee, at the common law, was a fee restrained 
 to some particular heirs, exclusive of others : " donatio itricta 
 et coarctata; sicut certis hceredibus, quibusdam a successione 
 exclusis ; " as to the heirs 0/ a man's body, by which only his 
 lineal descendants were admitted, in exclusion of collateral heirs ; 
 or to the heirs male of his body., in exclusion both of collaterals, 
 and lineal females also. It was called a conditional fee, by reas- 
 on of the condition expressed or implied in the donation of it, 
 that if the donee died without such particular heirs, the land 
 should revert to the donor. For this was a condition annexed 
 by law to all grants ^ whatsoever ; that, on failure of the heirs 
 specified in the grant, the grant should be at an end, and the 
 land return to its ancient proprietor. Such conditional fees were 
 strictly agreeable to the nature of feuds, when they first ceased 
 to be mere estates for life, and were not yet arrived to be abso- 
 lute estates in fee-simple. And we find strong traces of these 
 limited, conditional fees, which could not be alienated from the 
 lineage of the first purchaser in our earliest Saxon laws. 
 
 Now, with regard to the condition annexed to these fees by 
 the common law, our ancestors held, that such a gift (to a man 
 and the heirs of his body) was a gift upon condition, that it should 
 revert to the donor if the donee had no heirs of his body ; but, if 
 . he had, it should then remain to the donee. They therefore 
 called it a fee-simple, on condition that he had issue. Now we 
 must observe, that, when any condition is performed, it is thence- 
 forth entirely gone ; and the thing to which it was before annexed, 
 becomes absolute, *and wholly unconditional. So that, as [*i.U 
 soon as the grantee had any issue born, his estate was supposed 
 to become absolute, by the performance of the condition; at 
 least, for these three purposes : i. To enable the tenant to alien 
 the land, and thereby to bar not only his own issue, but also the 
 donor of his interest in the reversion. 2. To subject him to 
 forfeit it for treason ; which he could not do, till issue born, longer 
 than for his own life ; lest thereby the inheritance of the issue, 
 and reversion of the donor, might have been defeated. 3. To 
 empower him to charge the land with rents, commons, and certain 
 other incumbrances, so as to bind his issue. And this was 
 thought the more reasonable, because, by the birth of issue, the 
 possibility of the donor's reversion was rendered more distant 
 and precarious : and his interest seems to have been the only 
 
296 OF FREEHOLD ESTATES 
 
 one which the law. as it then stood, was solicitous to protect ; 
 without much regard to the right of succession intended to be 
 vested in the issue. However, if the tenant did not in fact 
 alien the land, the course of descent was not altered by this 
 performance of the condition ; for if the issue had afterwards 
 died, and then the tenant, or original grantee, had died, without 
 making any alienation; the land, by the terms of the donation, 
 could descend to none but the heirs of his body, and therefore, 
 in default of them, must have reverted to the donor. For which 
 »eason, in order to subject the lands to the ordinary course of 
 descent, the donees of these conditional fee-simples took care to 
 alien as soon as they had performed the condition by having 
 issue ; and afterwards repurchased the lands, which gave them 
 a fee-simple absolute, that would descend to the heirs-general, 
 according to the course of the common law. And thus stood 
 the old law with regard to conditional fees : which things, says 
 Sir Edward Coke, though they seem ancient, are yet necessary to 
 be known ; as well for the declaring how the common law stood 
 in such cases, as for the sake of annuities, and such like inherit- 
 ances, as are not within the statutes of entail, and therefore re- 
 main as at the common law. 
 
 *112] * The inconveniences which attended these limited 
 and fettered inheritances, were probably what induced the judges 
 to give way to this subtle finesse of construction (for such it 
 undoubtedly was), in order to shorten the duration of these 
 conditional estates. But, on the other hand, the nobility, who 
 were willing to perpetuate their possessions in their own families, 
 to put a stop to this practice, procured the statute of West- 
 minster the second (commonly called the statute de donis con- 
 ditionalihis) to be made; which paid a greater regard to the 
 private will and intentions of the donor, than to the propriety ot 
 such intentions, or any public considerations whatsoever. This 
 statute revived in some sort the ancient feudal restraints which 
 were originally laid on alienations, by enacti ng, that from thence- 
 forth the will of the donor be observed ; and that the tenements 
 so given (to a man and the heirs of his body) should at all events 
 go to the issue, if there were any ; or, if none, should revert to 
 the donor. 
 
 Upon the construction of this act of parliament, the judges 
 determined that the donee had no longer a conditional fee-simple, 
 
OF INHERITANCE. 297 
 
 which became absolute and at his own disposal, the instant any 
 issue was born ; but they divided the estate into two parts, 
 leaving in the donee a new kind of particular estate, which they 
 denominated ?i. fee-tail; and investing in the donor the ultimate 
 fee-simple of the land, expectant on the failure of issue ; which 
 expectant estate is what we now call a reversion. And hence it 
 s that Littleton tells us, that tenant in fee-tail is by virtue of the 
 statute of Westminster the second. 
 
 Having thus shown the original of estates-tail, I now proceed 
 to consider, what things may, or may not, be entailed *under [*113 
 the statute dedonis. Tenements is the only word used in the stat- 
 ute : and this Sir Edward Coke expounds to comprehend all 
 corporeal hereditaments whatsoever ; and also all incorporeal 
 hereditameiirs which savor of the realty, that is, which issue 
 out of corporeal ones, or which concern, or are annexed to, or 
 may be exercised within the same; as, rents, estovers, commons, 
 and the like. Also offices and dignities, which concern lands, 
 or have relation to fixed and certain places, may be entailed. But 
 mere personal chattels, which savor not at all of the realty, can- 
 not be entailed. Neither can an office, which merely relates to 
 such personal chattels ; nor an annuity, which charges only the 
 person, and not the lands of the grantor. But in these last, if 
 granted to a man and the heirs of his body, the grantee hath still 
 a fee-conditional at common law, as before the statute ; and by 
 his ahenation (after issue born) may bar the heir or reversioner. 
 An estate to a man and his heirs for another's life cannot be en- 
 tailed : for this is strictly no estate of inheritance (as will appear 
 hereafter), and therefore not within the statute dedonis. Neither 
 can a copyhold estate be entailed by virtue of the statute ; for 
 that would tend to encroach upon and restrain the will of the 
 lord : but, by the special custom of the manor, a copyhold may be 
 limited to the heirs of the body ; for here the custom ascertains 
 and interprets the lord's will. 
 
 Next, as to the several species of estates-tail, and how they 
 are respectively created. Estates-tail are ^xXh.&r general or special. 
 Tail-general is where lands and tenements are given to one, and 
 the heirs of his body begotten : which is called tail-general, be- 
 cause, how often soever such donee in tail be married, his issue 
 in general by all and every such marriage is, in successive order, 
 capable of /nberiting the estate-tail /i?r /<7««a»2 doni. Ten- 
 
zgS OF FREEHOLD ESTATES 
 
 anf in Uil special is where the gift is restrained tc certain heirs 
 of the donee's body, and does not go to all of them in gen- 
 *114] eral. And this may *happen several ways. I shall in- 
 stance in only one ; as where lands and tenements are given to a 
 man and the heirs of his body, on Mary his now wife to be begot- 
 ten : here no issue can inherit, but such special issue as is engen- 
 dered between them two ; not such as the husband may have by 
 another wife ; and therefore it is called special tail. And here 
 we may observe, that the words of inheritance (to him and his 
 rieirs) give him an estate in fee : but they being heirs to be by him 
 begotten, this makes it a fee-tail ; and the person being also lim- 
 ited, on whom such heirs shall be begotten {viz. Mary his present 
 wife), this makes it a fee-tail special. 
 
 Estates, in general and special tail, are farther diversified by 
 the distinction of sexes in such entails ; for both of them may 
 either be in tail male or tail female. As if lands be given to a 
 man, and his heirs male of his body begotten, this is an" estate in 
 tail male general ; but if to a man and the heirs female of his 
 body on his present wife begotten, this is an estate in tail female 
 special. And, in case of an entail male, the heirs female shall 
 never inherit, nor any derived from them ; nor, e converse, the 
 heirs male, in case of a gift in tail female. Thus, if the donee in 
 tail male hath a daughter, who dies leaving a son, such grandson, 
 in this case cannot inherit the estate-tail ; for he cannot deduce 
 his descent wholly by heirs male. And as the heir male must 
 convey his descent wholly by males, so must the heir female 
 wholly by females. And therefore if a man hath two estates-tail, 
 the one in tail male, the other in tail female ; and he hath issue 
 a daughter, which daughter hath issue a son ; this grandson can 
 succeed to neither of the estates ; for he cannot convey his de- 
 scent wholly either in the male or female line. 
 
 As the word heirs is necessary to create a fee, so in fatthei 
 limitation of the strictness of the feudal donation, the word body, 
 or some other words of procreation, are necessary to make it a 
 •115] fee-tail, and ascertain to what heirs in particular *the fee 
 is limited. If, therefore, either the words of inheritance, or words 
 of procreation be omitted, albeit the others are inserted in the 
 grant, this will not make an estate-tail. As, if the grant be to a 
 man and his issue of his body, to a man and his seed, to a man 
 and his children, or offspring; all these are only estates for life, 
 
OF INHERITANCE. 299 
 
 there wanting the words of inheritance, his heirs. So, on the 
 other hand, a gift to a man, and his heirs male ov female, is an 
 estate in fee-simple, -and not in fee-tail : for there are no words 
 to ascertain the body out of which they shall issue. Indeed, in 
 last wills and testaments, wherein greater indulgence is allowed, 
 an estate-tail may be created by a devise to a man and his seed, 
 or to a man and his heirs male ; or by other irregular modes of 
 expression. 
 
 There is still another species of entailed .estates, now indeed 
 grown out of use, yet still capable of subsisting in law; which are 
 estates in libera maritdgio, ox frank-marriage. These are defined 
 to be, where tenements are given by one man to another, to- 
 gether with a wife, who is the daughter or cousin of the donor, 
 to hold in frank-marriage. Now, by such gift, though nothing but 
 the ^or A frank-marriage is expressed, the donees shall have the 
 tenements to them, and the heirs of their two bodies begotten ; 
 that is, they are tenants in special tail. For this one ^0x6., frank- 
 marriage, does ex vi termini not only create an inheritance, like 
 vue ^oxA frankalmoign, but likewise limits that inheritance ; sup- 
 plying not only words of descent, but of procreation also. Such 
 donees in frank-marriage are liable to no service but fealty ; for a 
 rent reserved thereon is void, until the fourth degree of consan- 
 guinity be past between the issues of the donor and donee. 
 
 The incidents to a tenancy in tail, under the statute Westm. 
 2, are chiefly these: i. That a tenant in tail may commit waste 
 on the estate-tail, by felling timber, pulling down houses, or the 
 like, without being impeached, or called to account for the same. 
 *2. That the wife of the tenant in tail shall have her [*116 
 dower, or thirds, of the estate-tail. 3. That the husband of a 
 female tenant in tail may be tenant by the curtesy of the estate- 
 tail. 4. That an estate-tail may be barred, or destroyed by a 
 hne, by a common recovery, or by lineal warranty descending 
 with assets to the heir. All which will hereafter be explained 
 at large. 
 
 Thus much for the nature of estate-tail : the establishment 
 of which family law (as it is properly styled by Pigott) occa- 
 sioned infinite difficulties and disputes. Children grew disobe- 
 dient when they knew they could not be set aside : farmers 
 were ousted of their leases made by tenants in tail ; for, if such 
 leases hid been valid, then under color of long leases the issue 
 
300 OF FREEHOLD ESTATES 
 
 might have been virtually disinherited ; creditors were defrauded 
 of their debts ; for, if a tenant in tail could have charged his 
 estate with their payment, he might also have defeated his is- 
 sue, by mortgaging it for as much as it was worth : innumerable 
 latent entails were produced to deprive purchasers of the lands 
 they had fairly bought ; of suits in consequence of which our 
 ancient books are full : and treasons were encouraged ; as es- 
 tates-tail were not liable to forfeiture, longer than for the tenant's 
 life. So that they were justly branded, as the source of new con- 
 tentions, and mischiefs unknown to the common law ; and al- 
 most universally considered as the comYnon grievance of the 
 realm. But as the nobility were always fond of this statute, be- 
 cause it preserved their family estates from forfeiture, there was 
 little hope of procuring a repeal by the legislature, and there- 
 fore, by the contrivance of an active and politic prince, a method 
 was devised to evade it. 
 
 About two hundred years intervened between the making of 
 the statute de donis, and the application of common recoveries 
 to this intent, in the twelfth year of Edward IV. ; which were 
 *117] then openly declared by the judges to be a *sufficient bar 
 ofan estate-tail. For though the courts had, so long before as 
 tne reign of Edward III. very frequently hinted their opinion 
 that a bar might be effected upon these principles, yet it was 
 never carried into execution ; till Edward IV. observing (in the 
 disputes bei-ween the houses of York and Lancaster) how little 
 effect attainders for treason had on families, whose estates were 
 protected by the sanctuary of entails, gave his countenance to 
 this proceeding, and suffered Taltarum's case to be brought be- 
 fore the court : wherein, in consequence of the principles then 
 laid down, it was in effect determined, that a common recovery 
 suffered by tenant in tail should be an effectual destruction 
 thereof. What common recoveries are, both in their nature and 
 cjnsequences, and why they are allowed to be a bar to the es- 
 tate-tail, must be reserved to a subsequent inquiry. At present I 
 shall only say, that they are fictitious proceedings, introduced by 
 a kind of pia fraus, to elude the statute de donis, which was 
 found so intolerably mischievous, and which yet one branch of 
 the legislature would not then consent to repeal : and that these 
 recoveries, however clandestinely introduced, are now become 
 by long use and acquiescence a most common assurance of 
 
OF INHERITANCE. 301 
 
 lands ; and are looked upon as the legal mode of :onveyance, by 
 which tenant in tail may dispose of his lands and tenements : so 
 that no court will suffer them to be shaken or reflected on, and 
 even acts of parliament have by a sidewind countenanced and 
 established them. 
 
 This expedient having greatly abridged estates-tail with le- 
 gard to their duration, others were soon invented to strip therj 
 of other privileges. The next that was attacked was their free- 
 dom from forfeitures for treason. For, notwithstanding the 
 large advances made by recoveries, in the compass of about 
 threescore years, towards unfettering these inheritances, and 
 thereby subjecting the lands to forfeiture, the rapacious prince 
 then reigning, finding them frequently *resettlcd in a [*li.8 
 similar manner to suit the convenience of families, had address 
 enough to procure a statute, whereby all estates of inheritance 
 (under which general words estates-tail were covertly included) 
 are declared to be forfeited to the king upon any conviction of 
 high treason. 
 
 The next attack which they suffered in order of time, was by 
 the statute 32 Hen. VIII. c. 28, whereby certain leases made by 
 tenants in tail, which do not tend to the prejudice of the issue, 
 were allowed to be good in law, and to bind the issue in tail. 
 But they received a more violent blow, in the same session 
 of parliament, by the construction put upon the statute of fines, 
 by the statute 32 Hen. VIII. c. 36, which declares a fine 
 duly levied by tenant in tail to be a complete bar to him and his 
 heirs, and all other persons claiming under such entail. This 
 was evidently agreeable to the intention of Henry VII. whose 
 policy it was (before common recoveries had obtained their full 
 strength and authority) to lay the road as open as possible to the 
 alienation of landed property, in order to weaken the overgrown 
 power of his nobles. But as they, from the opposite reasons, were 
 not easily brought to consent to such a provision, it was there- 
 fore couched, in his act, under covert and obscure expressions 
 And the judges, though willing to construe that statute as favor- 
 ably as possible for the defeating of entailed estates, yet hesi- 
 tated at giving fines so extensive a power by mere implication, 
 when the statute de donis had expressly declared, that they would 
 w/be a bar to estates-tail. But the statute of Hen. VI 1 1., when 
 the doctrine of alienation was better received, and the will of the 
 
302 OF FREEHOLD ESTATES, 
 
 prince more implicitly obeyed than before, avowed and cstab. 
 lished that intention. Yet, in order to preserve the property of 
 the crown from any danger of infringement, all estates-tail 
 created by the crown and of which the crown has the reversion, 
 are excepted out of this statute. And the same was done with 
 regard to common recoveries, by the statute 34 & 35 Hen. VIII. 
 c. 20, which enacts, that no feigned recovery had against tenants 
 *119] in tail, where the estate was created by the *crown, and the 
 remainder or reversion continues still in the crown, shall be of 
 any force and effect. Which is allowing, indirectly and 
 collaterally, their full force and effect with respect to ordinary 
 estates-tail, where the royal prerogative is not concerned. 
 
 Lastly, by a statute of the succeeding year, all estates-tail 
 are rendered liable to be charged for payment of debts due to the 
 king by record or special contract; as since, by the bankrupt 
 laws, they are also subjected to be sold for the debts contracted 
 by a bankrupt. And, by the construction put on the statute 43 
 Eliz. c. 4, an appointment by tenant in tail of the lands entailed, 
 to a charitable use, is good without fine or recovery. 
 
 Estates-tail, being thus by degrees unfettered, are now 
 reduced again to almost the same state, even before issue born, as 
 conditional fees were in at common law, after the condition 
 was performed, by the birth of issue. For, first, the tenant 
 in tail is now enabled to alien his lands and tenements, 
 by fine, by recovery, or by certain other means ; and 
 thereby to defeat the interest as well of his own issue, 
 though unborn, as also of the reversioner, except in the case of 
 the crown : secondly, he is now liable to forfeit them for high 
 treason : and lastly, he may charge them with reasonable leases, 
 and also with such of his debts as are due to the crown on 
 specialties, or have been contracted with his fellow-subjects in a 
 course of extensive commerce.' 
 
 " The former modes of barring an estate-tail by fine and recovery, have 
 been abolished in England, and provision is now made by statute for accom- 
 plishing the same end, by deed executed by the tenant in tail, and enrolkd 
 in chancery within six months after its execution. (3 & 4 Will. IV., ch. 74.) 
 Estates-tail were introduced into the American colonies from England, but 
 at the present day they have either been changed by statute into estates in 
 fee-simple, or may be changed into fees-simple by ordinary words of convey 
 ance. The statutes of the several States contain special provisions in regard 
 to this subject, (See Washburn on Real Property, vol. i. p. 118, Sth Ed.) 
 
NOT OF INHERITANCE. 303 
 
 CHAPTER VIII. 
 
 [bL. COMM. — BOOK II. CH. VIIT.] 
 
 Of Freeholds, not of Inheritance. 
 
 We are next to discourse of such estates of freehold, as are 
 not of inheritance, but for life only. And of these estates 
 for life, some are conventional, or expressly created by the act of 
 the parties ; others merely legal, or created by construction and 
 operation of law. We will consider them both in their order. 
 
 I. Estates for life, expressly created by deed or grant (which 
 alone are properly conventional), are where a lease is made of 
 lands or tenements to a man, to hold for the term of his own life, 
 or for that of any other person, or for more lives than one : in any 
 of which cases he is styled tenant for life ; only when he holds 
 the estate by the life of another, he is usually called tenant /^r 
 auter vie. These estates for life are, like inheritances, of feudal 
 nature ; and were, for some time, the highest estate that any 
 man could have in a feud, which (as we have before seen) was not 
 in its original hereditary. They are given or conferred by the 
 same feudal rites and solemnities, the same investiture or livery 
 of seizin, as fees themselves are ; and they are held by fealty, if 
 demanded, and such conventional rents and services as the lord 
 or lessor, and his tenant or lessee, have agreed on. 
 
 *Estates for life may be created, not only by the express [*121 
 words before mentioned, but also by a general grant, without defin- 
 ing or limiting any specific estate. As, if one grants to A B the 
 manor of Dale, this makes him tenant for life. For though, as 
 there are no words of inheritance or heirs, mentioned in the grant, 
 it cannot be construed to be a fee, it shall however be construed 
 to be as large an estate as the words of the donation will bear, and 
 therefore an estate for life. Also such a grant at large, or a 
 grant for a term of life generally, shall be construed to be an 
 estate for the life of the grantee ; in case the grantor hath author- 
 ity to make such grant : for an estate for a man's own life is 
 more beneficial and of a higher nature than for any other life : 
 
304 OF FREEHOLDS, 
 
 and the rule of law is, that all grants are to be taken mosl 
 strongly against the grantor, unless in the case of the king. 
 
 Such estates for life will, generally speaking, endure as long 
 as the life for which , they are granted : but there are some 
 estates for life which may determine upon future contingencies, 
 before the life for which they are created expires. As if an 
 estate be granted to a woman during her widowhood, or to 
 a man until he be promoted to a benefice ; in these, and similar 
 cases, whenever the contingency happens, when the widow 
 marries, or when the grantee obtains a benefice, the respective 
 estates are absolutely determined and gone. Yet while they 
 subsist, they are reckoned estates for life ; because, the time for 
 which they will endure being uncertain, they may by possibility 
 last for life, if the contingencies upon which they are to deter- 
 mine do not sooner happen. And moreover, in case an estate be 
 granted to a man for his life, generally, it may also determine by 
 his civil death : as if he enters into a monastery, whereby he i.s 
 dead in law : for which reason in conveyances the grant is usually 
 made "for the term of a man's natural Xxio.;'^ which can only 
 determine by his natural death. 
 
 *122] *The incidents to an estate for life are principally the 
 following ; which are applicable not only to that species of tenants 
 for life which are expressly created by deed ; but also to those 
 which are created by act and operation of law. 
 
 I. Every tenant for life, unless restrained by covenant or 
 agreement, may of common right take upon the land demised to 
 him reasonable estovers or botes. For he hath a right to the full 
 enjoyment and use of the land, and all its profits, during his 
 estate therein. But he is not permitted to cut down timber, or 
 to do other waste upon the premises : for the destruction of such 
 things as are not the temporary profits of the tenement, is not 
 necessary for the tenant's complete enjoyment of his estate ; but 
 tends to the permanent and lasting loss of the person entitled to 
 the inheritance.^ 
 
 ' The life tenant may, however, continue the working of old mines, and 
 make new shafts or pits in mines already open, in order to pursue the same 
 vein of minerals. Waste is a spoil or destruction of that which constitutes 
 the corjjoreal hereditament, and is, in a legal point of view, both actual 
 (usually called voluntary waste), such as that mentioned in the text, ix^A per- 
 missive, as where houses are allowed to fall into ruin, or go to decay. 
 
 The remedies at common law for the commission of waste, were " an 
 
NOT OF INHERITANCE. 305 
 
 2. Tenant for life, or his representatives, shall not be preju- 
 diced by any sudden determination of his estate, because such a 
 determination is contingent and uncertain. Therefore if a tenant 
 for his own life sows the lands and dies before harvest, his execu- 
 tors shall have the emblements or profits of the crop : for the 
 estate was determined by the act of God., and it is a maxim in the 
 law, that actus Dei nemini facit injuriam. The representatives, 
 therefore, of the tenant for life shall have the emblements to 
 compensate for the labor and expense of tilling, manuring, and 
 sowing the lands ; and also for the encouragement of husbandry, 
 which being a public .benefit, tenaing to the increase and plenty 
 of provisions, ought to have the utmost security and privilege 
 that the law can give it. Wherefore by the feudal law, if a 
 tenant for life died between the beginning of September and the 
 end of February, the lord, who was entitled to the reversion, was 
 also entitled to the profits of the whole year ; but if he died be- 
 tween the beginning of March and the end *of August, the [*i23 
 heirs of the tenant received the whole. From hence our law of 
 emblements seems to have been derived, but with very considera- 
 ble improvements. So it is also, if a man be tenant for the life 
 of another and cestui que vie, or he on whose life the land is held, 
 dies after the corn sown, the tenant per auter vie shall have the 
 emblements. The same is also the rule, if a life estate be deter- 
 mined by the act of law. Therefore if a lease be made to hus- 
 
 action of w;4ste " to recover the place wasted and treble damages (now gener- 
 ally obsolete or abolished), and an " action on the case in the nature of waste," 
 to recover damages for the injuries caused to the property. An injunction in 
 equity may also he procured to interdict the commission of waste. So if timber 
 is cut down, the reversioner is entitled to recover its value, if it is carried away 
 or sold. 
 
 It is sometimes the practice in creating life estates, to provide that they 
 shall be held " without impeachment of waste." The effect of this is to give 
 t!ie tenant for life very enlarged powers as to doing acts in the nature of waste. 
 Still his power in this respect is not even then equal to that which a tenant in 
 fee-simple possesses ; because courts of equity have established the doctrine 
 that he may not commit any act which tends to the destruction of the thing 
 settled ; as, for instance, the pulling down of a family mansion, or even cutting 
 any timber which has been planted or left standing for ornament. And it 
 may be remarked that no question of taste is allowed to influence the decis- 
 ion, whether or not the trees are ornamental ; the only point to be ascer- 
 tained is, whether they were in fact planted or left standing {or ornament 
 (Broom and H. Comm. ii. 235, 236; see post, page 431.) 
 20 
 
3o6 OF FREEHOLDS, 
 
 band and wife during coverture (which gives them a determinable 
 estate for life), and the husband sows the land, and afterwards 
 they are divorced a vinculo matrimonii, the husband shall have 
 the emblements in this case ; for the sentence of divorce is the 
 act of law. But if an estate for life be determined by the 
 tenant's own act (as, by forfeiture for waste committed ; or, if a 
 tenant during widowhood thinks proper to marry), in these, and 
 similar cases, the tenants, having thus determined the estate b) 
 their own acts, shall not be entitled to take the emblements. The 
 doctrine of emblements extends not only to corn sown, but to 
 roots planted, or other annual artificial profit, but it is otherwise 
 of fruit-trees, grass, and the like ; which are not planted annually 
 at the expense and labor of the tenant, but are either a per- 
 manent or natural profit of the earth. For when a man plants a 
 tree, he cannot be presumed to plant it in contemplation of any 
 present profit ; but merely with a prospect of its being useful to 
 himself in future and to future successions of tenants. The ad- 
 vantages also of emblements are particularly extended to the 
 parochial clergy by the statute 28 Hen. VIII. c. 11. For all per- 
 sons, who are presented to any ecclesiastical benefice, or to any 
 civil office, are considered as tenants for their own lives, unless 
 the contrary be expressed in the form of donation. 
 
 3. A third incident to estates for life relates to the under- 
 tenants, or lessees. For they have the same, nay greater indul 
 gences than the lessors, the original tenants for life. The same ; 
 *124] for the law of estovers and emblements *with regard to 
 the tenant for life, is also law with regard to his under-tenant, 
 who represents him and stands in his place : and greater ; for in 
 those cases where tenant for life shall not have the emblements, 
 because the estate determines by his own act, the exception 
 shall not reach his lessee, who is a third person. As in the case 
 of a woman who holds durante viduitate ; her taking husband is 
 her own act, and therefore deprives her of the emblements ; but 
 if she leases her estate to an under-tenant, who sows the land, 
 and she then marries, this her act shall not deprive the tenant ol 
 his emblements, who is a stranger, and could not prevent her. 
 The lessees of tenants for life had also at the common, law an- 
 other most unreasonable advantage ; for at the death of their 
 lessors, the tenants for life, these under-tenants might if they 
 pleased quit the premises, and pay no rent to anybody for the 
 
NOT OF INHERITANCE. 307 
 
 occupation of the land since the last quarter-day, or other day 
 assigned for payment of rent. To remedy which it is now en- 
 acted, that the executors or administrators of tenant for life, on 
 whose death any lease determined, shall recover of the lessee a 
 ratable proportion of rent from the last day of payment to the 
 death of such lessor.'' 
 
 II. The next estate for life is of the legal kind, as contradis- 
 tinguished from conventional ; viz. that of tenant in tail after 
 possibility of issue extinct. This happens where one is tenant in 
 special tail ; and a person, from whose body the iss\ie was to spring, 
 dies without issue ; of, having left issue, that issue becomes ex- 
 tinct : in either of these cases the surviving tenant in special tail 
 becomes tenant in tail after possibility of issue extinct. As 
 where one has an estate to him and his heirs on the body of his 
 present wife to be begotten, and the wife dies without issue : in 
 this case the man has an estate-tail, which cannot possibly de- 
 scend to any one ; and therefore the law makes use of this long 
 periphrasis, as absolutely necessary to give an adequate idea of 
 his estate. For if it had called him barely tenant in fee-tail spe- 
 cial, that *would not have distinguished him from others ; [*125 
 and besides, he has no longer an estate of inheritance or fee, for 
 he can have no heirs capable of taking per formam doni. Had 
 it called him tenant in tail without issue, this had only related to 
 the present fact, and would not have excluded the possibility of 
 future issue. Had he been styled tenant in tail without possi- 
 bility of issue, this would exclude time past as well as present, 
 and he might under this description never have had any possi- 
 bility of issue. No definition therefore could so exactly mark 
 him out, as this of tenant in tail after possibility of issue extinct, 
 which (with a precision peculiar to our own law) not only takes 
 in the possibility of issue in tail, which he once had, but also 
 states that this possibility is now extinguished and gone. 
 
 ''■ Similar statutes have been passed in a number of the United States, m 
 the same doctrine has been practically enforced by the courts. 
 
 A tenant for life could not, by the common law, make a valid lease of the 
 land, to last beyond his own life. It therefore became the practice, after a 
 time, to give him a power in the conveyance made to him, to make a lease for 
 a limited period of years, which should continue even after his death. And 
 now, by statute in England, it is provided that, under certain restrictions, a 
 tenant for life may make a valid lease to last for 21 years. Similar statutes 
 are found in various States of this country. 
 
3o8 OF FREEHOLDS, 
 
 This estate must be created by the act of God, that is by the 
 death of that person out of whose body the issue was to spring ; 
 for no limitation, conveyance, or other human act can make it. 
 For, if land be given to a man and his wife, and the heirs of their 
 two bodies begotten, and they are divorced a vinculo matrimonii^ 
 they shall neither of them have this estate, but be barely tenants 
 for life, notwithstanding the inheritance once vested in them. 
 A possibility of issue is always supposed to exist, in law, unless 
 extinguished by the death of the parties ; even though the donees 
 be each of them an hundred years old. 
 
 This estate is of an amphibious nature, partaking partly of an 
 estate-tail, and partly of an estate for life. The tenant is, in 
 truth, only tenant for life, but with many of the privileges of a 
 tenant in tail ; as not to be punishable for waste, &c.; or, he is 
 tenant in tail, with many of the restrictions of a tenant for life ; 
 as to forfeit his estate, if he aliens it in fee-simple : whereas 
 such alienation by tenant in tail, though voidable by the issue, is 
 no forfeiture of the estate to the reversioner ; who is not con- 
 *126] cerned in interest, *till all possibility of issue be extinct. 
 But, in general, the law looks upon this estate as equivalent to an 
 estate for life only ; and, as such, will permit this tenant to ex- 
 change his estate with a tenant for life, which exchange can only 
 be made, as we shall see hereafter, of estates that are equal in 
 their nature. 
 
 III. Tenant by the curtesy of England, is where a man mar- 
 ries a woman seized of an estate of inheritance, that is, of lands 
 and tenements in fee-simple or fee-tail ; and has by her issue, 
 born alive, which was capable of inheriting her estate. In this 
 case, he shall, on the death of his wife, hold the lands for his 
 life, as tenant by the curtesy of England. 
 
 This estate, according to Littleton, has its denomination, be- 
 cause it is used within the realm of England only ; and it is said 
 in the Mirrour to have been introduced by King Henry the First ; 
 but it appears also to have been the established law of Scotland, 
 wherein it was called curialitas, so that probably our word cur- 
 tesy was understood to signify rather an attendance upon the 
 lord's court or curtis (that is, being his vassal or tenant), than to 
 denote any peculiar favor belonging to this island. And there- 
 fore it is laid down that by having issue, the husband shall be 
 entitled to do homage to the lord, for the wife's lands, alone: 
 
NOT OF INHERITANCE. 309 
 
 whereas, before issue had, they must both have done it together. 
 It is likewise used in Ireland, by virtue of an ordinance of King 
 Henry III. It also appears to have obtained in Normandy ; and 
 was likewise used among the ancient Almains or Germans. And 
 yet it is not generally apprehended to have been a consequence 
 of feudal tenure, though I think some substantial feudal reasons 
 may be given for its introduction. For if a woman seized of 
 lands hath issue by her husband, and dies, the husband is the 
 natural guardian of the child, and as such is in reason entitled 
 to *the profits of the lands in order to maintain it ; for [*127 
 which reason the heir, apparent of a tenant by the curtesy could 
 not be in ward to the lord of the fee, during the life of such ten- 
 ant. As soon therefore as any child was born, the father began 
 to have a permanent interest in the lands ; he became one of the 
 pares curiis, did homage to the lord, and was called tenant by 
 the curtesy initiate; and this estate being once vested in him 
 by the birth of the child, was not suffered to determine by the 
 subsequent death or coming of age of the infant. 
 
 There are four requisites necessary to make a tenancy by the 
 curtesy ; marriage, seizin of the wife, issue, and death of the wife. 
 I. The marriage must be canonical and legal. 2. The seizin of 
 the wife must be an actual seizin, or possession of the lands ; 
 not a bare right to possess, which is a seizin in law, but an actual 
 possession, which is a seizin in deed.' And thejjefore a man shall 
 not be tenant by the curtesy of a remainder or reversion.* But of 
 
 • An illustration of seizin in law would be the acquisition of an estate in 
 fet by inheritance, before entry had been made thereon. When entry had 
 been made, the seizin would be seizin in fact. When a fee is conveyed by 
 deed, the grantee has a seizin in fact without entry. 
 
 ' A man will not be entitled to tenancy by the curtesy of, nor a woman to 
 dower out of, a reversion or remainder expectant upon a life estate, unless 
 the life estate terminate during the marriage, so that her expectant estate 
 vests in possession. {Ferguson v. Tweedy, 43 N. Y. 543.) But upon a 
 reversion or remainder expectant upon an estate for years, both dower and 
 curtesy accrue. The wife's estate of inheritance must be the first estate of 
 freehold, in order to entitle the husband to curtesy therein. 
 
 If the wife's estate depend upon a condition, and a forfeiture takes place for 
 breach of condition, the right of curtesy is destroyed at the same time, since 
 the entry for breach of condition is regarded as destroying or extinguishing 
 the estate from the beginning {ab initio'). (Kent's Comm. IV. 33.) But if 
 her estate depend upon a conditional limitation, the generally maintained 
 doctrine now is that the husband has curtesy therein, although the contin- 
 
3IO OF FREEHOLDS, 
 
 some incorporeal hereditaments a man may be tenant by the 
 curtesy, though there have been no actual seizin of the wife : as 
 in case of an advowson, where the church has not become void in 
 the lifetime of the wife : which a man may hold by the curtesy, 
 because it is impossible ever to have actual seizin of it, and impo- 
 tentia excusat legem. If the wife be an idiot, the husband shall 
 not be tenant by the curtesy of her lands.* For the king by 
 prerogative is entitled to them, the instant she herself has any 
 title : and since she could never be rightfully seized of the lands, 
 and the husband's title depends entirely upon her seizin, the 
 husband can have no title as tenant by the curtesy. 3. The issue 
 must be born alive. Some have had a notion that it must be 
 heard to cry ; but that is a mistake. Crying indeed is the strong- 
 <?j/ evidence of its being born alive ; but it is not the only evidence. 
 The issue also must be born during the life of the mother ; for 
 if the mother dies in labor, and the Cassarean operation is per- 
 formed, the husband in this case shall not be tenant by the 
 *128] *curtesy ; because, at the instant of the mother's deathy 
 he was clearly not entitled, as having had no issue born, but the 
 land descended to the child while he was yet in his mother's womb; 
 and the estate being once so vested, shall not afterwards be 
 taken from him.* In gavelkind lands, a husband may be tenant 
 by the curtesy, without having any issue. But in general there 
 must be issue born : and such issue as is also capable of inherit- 
 ing the mother's estate. Therefore, if a woman be tenant in tail 
 male, and hath only a daughter born, the husband is not thereby 
 entitled to be tenant by the curtesy ; because such issue female 
 can never inherit the estate in tail male. And this seems to be 
 
 gent event happens which causes the estate in the wife to cease or be trans- 
 ferred. Similar principles prevail in the main, in regard to dower in contin- 
 gent estates. [See Hatfield \. Sneden, 54 N. Y. 280.) 
 
 If the wife have an estate held in trust for her benefit, the husband ■will 
 be entitled to curtesy therein, for although the estate is an equitable one, 
 courts of equity will give the husband the benefit of curtesy therein as he 
 would receive in legal estates. But there is no curtesy in estates which she 
 holds as trustee for another, 
 
 ' When the wife is an idiot or lunatic at the time of marriage, the marriage, 
 being void at common-law for this disability, there can be no curtesy, i^^n- 
 kins v. Jenkins' Heirs, 2 Dana (Ky.) 102 ; see 22 O. St. 271 ; 18 Kan. 371.) 
 But a voidable marriage must be avoided during the wife's life to deprive the 
 husband of curtesy. (See ante, page 145.) 
 
 * See Marsellis v. Thalhimer, 2 Paige, 35. 
 
NOT OF INHERITANCE. 3 1 1 
 
 the principal reason, why the husband cannot be tenant by the 
 curtesy of any lands of which the wife was not actually seized : 
 because, in order to entitle himself to such estate, he must have 
 begotten issue that may be heir to the wife : but no one, by the 
 standing rule of law, can be heir to the ancestor of any land, 
 whereof the ancestor was not actually seized ; and therefore as 
 the husband hath never begotten any issue that can be heir to 
 those lands, he shall not be tenant of them by the curtesy. And 
 hence we may observe, with how much nicety and consideration 
 the old rules of law were framed ; and how closely they are con- 
 nected and interwoven together, supporting, illustrating, and 
 demonstrating one another. The time when the issue was born 
 is immaterial, provided it were during the coverture ; for, whether 
 it were before or after the wife's seizin of the lands, whether it be 
 living or dead at the time of the seizin, or at the time of the wife's 
 decease, the husband shall be tenant by the curtesy. The hus- 
 band by the birth of the child becomes (as was before observed) 
 tenant by the curtesy initiate and may do many acts to charge 
 the lands, but his estate is not consummate till the death of the 
 wife : which is the fourth and last requisite to make a complete 
 tenant by the curtesy. 
 
 *IV. Tenant in dower is where the husband of a woman [*129 
 is seized of an estate of inheritance, and dies ; in this case, the 
 wife shall have the third part of all the lands and tenements 
 whereof he was seized at any time during the coverture, to hold 
 to herself for the term of her natural life. 
 
 Dower is called in Latin by the foreign jurists doarium, but 
 by Bracton and our English writers dos: which among the Romans 
 signified the marriage portion, which the wife brought to her 
 husband ; but with us is applied to signify this kind of estate to 
 which the civil law, in its original state, had nothing that bore 
 a resemblance : nor indeed is there any thing in general more 
 different, than the regulations of landed property according to 
 the English and Roman laws. Dower out of the lands seems 
 also to have been unknown in the early part of our Saxon con- 
 stitution ; for in the laws of King Edmond, the wife is directed to 
 be supported wholly out of the personal estate. Afterwards, as 
 may be seen in gavelkind tenure, the widow became entitled to 
 a conditional estate in one half of the lands ; with a proviso that 
 she remained chaste and unmarried ; as is usual also in copyhoW 
 
312 OF FREEHOLDS, 
 
 dowers, or free bench. Yet some have ascribed the intiuduction 
 of dower to the Normans, as a branch of their local tenures ; 
 though we cannot expect any feudal reason for its invention, 
 since it was not a part of the pure, primitive, simple law of feuds, 
 but was first of all introduced into that system (wherein it was 
 called triens, tertia and dotalitium) by the Emperor Frederick the 
 Second ; who was contemporary with our King Henry III. It is 
 possible therefore, that it might be with us the relic of a Danish 
 custom : since, according to the historians of that country, 
 dower was introduced into Denmark by Swein, the father of our 
 Canute the Great, out of gratitude to the Danish ladies, who sold 
 •130J all their *jewels to ransom him when taken prisoner by the 
 Vandals. However this be, the reason which our law gives for 
 adopting it, is a very plain and sensible one ; for the sustenance 
 of the wife, and the nurture and education of the younger chil- 
 dren. 
 
 In treating of this estate, let us, first, consider who may 
 be endowed ; secondly, of what she may be endowed ; thirdly, 
 the manner how she shall be endowed ; and fourthly, how dower 
 may be barred or prevented. 
 
 I. Who may be endowed. She must be the actual wife of 
 the party at the time of his decease. If she be divorced a 
 vinculo matrimonii, she shall not be endowed ; for ubi nullum 
 matrimonium, ibi nulla dos. But a divorce a mensd et thoro 
 only, doth not destroy the dower ; no, not even for adultery itself 
 by the common law.' Yet now by the statute Westm. 2, if a woman 
 
 ' It will be remembered that, at the time when Blackstone wrote, divorce 
 a vinculo was granted only for causes existing previous to the marriage, of 
 in cases of " nullity " of the marriage contract, as it is termed, while adultery 
 was only a cause for divorce a mensd et thoro. But in the United States, at 
 the present day, total divorce is generally granted for adultery, and in some 
 of the States for various other causes arising after the marriage ; and the 
 marriage is not then considered as void from the beginning, but as valid until 
 the decree is rendered. It is, therefore, the rule in a number of the States, 
 usually declared by statutory provisions, that if the divorce be on the 
 ground of the wife's adultery, she shall lose her right of dower, but if on 
 the ground of her husband's adultery, she shall retain her dower. Such is 
 the case in New York. (4 N. Y. 95 ; see 103 N. Y. 284.) In some 
 States, moreover, total divorce for certain other causes, which the stat- 
 utes mention, has the same effect upon the wife's dower-right. Such 
 right is barred by a divorce for her misconduct, but not for that of her 
 husband. But it is the ordinary rule, in these cases, that a divorce must ac- 
 
NO T OF INHERl FANCE. 3 1 3 
 
 voluntarily leaves (whicL the law calls eloping from) her husband, 
 and lives with an adulterer, she shall lose her dower, unless her 
 husband be voluntarily reconciled to her. It was formerly held, 
 that the wife of an idiot might be endowed, though the husband 
 of an idiot could not be tenant by the curtesy ; but as it seems 
 to be at present agreed, upon principles of sound sense and 
 reason, that an idiot cannot marry, being incapable of consenting 
 to any contract, this doctrine cannot now take place. By the 
 ancient law, the wife of a person attainted of treason or felony 
 could not be endowed ; to the intent, says Staunforde, that if 
 the love of a man's, own life cannot restrain him from such 
 atrocious acts, the love of his wife and children may ; though 
 Britton gives it another turn : viz., that it is presumed the wife 
 was privy to her husband's crime. However, the statute i Edw. 
 VI. ch. 12., abated the rigor of the common law in this particular 
 and allowed * the wife her dower. But a subsequent statute [*131 
 revived this severity against the widows of traitors, who are 
 now barred of their dower (except in the case of certain modern 
 treasons relating to the coin), but not the widows of felons. An 
 alien also cannot be endowed, unless she be queen consort ; for 
 no alien is capable of holding lands. ^ The wife must be above 
 
 tually be decreed, and that the mere commission of adultery by the wife will 
 npt be sufficient to deprive her of dower. {Pitts v. Pitts, 52 N. Y. 593 ; 
 see also 118 N. Y. 549; 24 Wend. 193.) It is, however, true that in several 
 States, the statute Westm. 2, is regarded as still in force, so that elopement 
 with an adulterer bars dower, but the generally prevailing doctrine is olher- 
 wise. In some States, it is provided that a party whose own adultery has 
 caused a divorce shall not niarry again during the life of the other party. 
 If, therefore, a man is under such a prohibition, and again marries within 
 the State during his first wife's life, the second marriage is void, and the 
 second wife has no dower. (Cropsey v. Ogden, 11 N. Y. 228.) So a decree 
 of nullity of the marriage would still destroy the right of dower. But 
 divorce a mensd et thoro does not dissolve the marriage, and the wife still 
 has dower. .(Day v. West, 2 Edward Ch. 592.) 
 
 Similar statutes have been passed in various States in regard to the hus- 
 band's right of curtesy, this being barred by total divorce for his own mis- 
 conduct, but not for that of his wife. 
 
 In States having no such statutory provisions, the general rule prevails that 
 a total divorce for any cause bars dower, (iii U. S. 523 ; 61 la. 174.) 
 
 ' But now it is the rule both in England and in this country, that if an alien 
 woman be naturalized or become a citizen by marriage- to a citizen, she will 
 be entitled to dower. The disability in this respect of alien women, who are 
 wives of aliens, has also been removed in a number of the States by statute. 
 
314 OF FREEHOLDS, 
 
 nine years old at her husband's death, otherwise ihe shall not be 
 endowed : though in Bracton'stime the age was indefinite, and 
 dower was then only due "si uxorpossit do tern promereri, et virum 
 sustinere." 
 
 2. We are next to inquire, of what a wife may be endowed. 
 And she is now by law entitled to be endowed of all lands and 
 tenements, of which her husband was seized in fee-simple or fee- 
 tail, at any time during the coverture ; and of which any issue 
 which she might have had, might by possibility have been heir. 
 Therefore, if a man seized in fee-simple, hath a son by his first 
 wife, and after marries a second wife, she shall be endowed of 
 his lands ; for her issue might by possibility have been heir, on 
 the death of the son by the former wife. But if there be a donee 
 in special tail who holds lands to him and the heirs of his body 
 begotten on Jane his wife ; though Jane may be endowed of 
 these lands, yet if Jane dies, and he marries a second wife, that 
 second wife shall never be endowed of the lands entailed ; for no 
 issue that she could have, could by any possibility inherit them. 
 A seizin in law of the husband will be as effectual as a seizin in 
 deed, in order to render the wife dowable ; for it is not in the 
 wife's power to bring the husband's title to an actual seizin, as 
 it is in the husband's power to do with regard to the wife'slands : 
 which is one reason why he shall not be tenant by the curtesy 
 but of such lands whereof the wife, or he himself in her right, 
 was actually seized in deed. The seizin of the husband, for a 
 *132] transitory instant *only, when the same act which gives 
 him the estate conveys it also out of him again (as where, by a 
 fine, land is granted to a man, and he immediately renders it 
 back by the same fine), such a seizin will not entitle the wife to 
 dower : for the land was merely in transitu, and never rested in 
 the husband, the grant and render being one continued act.' 
 
 ' The right of dower does not so much depend upon the instantaneous 
 character of the seizin, as upon the point whether the husband's seizin is 
 beneficial or not. Where he is a mere conduit, as it were, or intermediary, 
 lo transfer the beneficial interest to another, his wife has no dower. But if 
 he acquires a beneficial seizin himself, though but for an instant, the right 
 of dower at once attaches. A good illustration of an instantaneous seizin not 
 beneficial, is where the husband purchases a piece of land, and receives the 
 deed, but gives back 4 mortgage upon the premises for the purchase-money. 
 This is regarded as constituting but a single transaction, and the wife's 
 dower-right is subject to the mortgage. (Brackett v. Baum, 50 N. Y. 8; 
 Kittle V. Van Dyck, i Sandf. Ch. 76; Smith v. McCarty, 119 Mass. 519.) 
 
NO T OF INHERITANCE. 3 t 5 
 
 But, if the land abides in him for the interval of but a single mo- 
 ment, it seems that the wife shall be endowed thereof, (a) And, in 
 short, a widow may be endowed of all her husband's lands, tene- 
 ments, and hereditaments, corporeal or incorporeal, under the re- 
 strictions before mentioned ; unless there be some special reason to 
 the contrary." Thus a woman shall not be endowed of a castle built 
 for defence of the realm : nor of a common without stint ; for, as 
 the heir would then have one portion of this common, and the 
 widow another, and both without stint, the common would be 
 doubly stocked. Copyhold estates are also not liable to dower, 
 being only estates at^the lord's will ; unless by the special custom 
 of the manor, in which case it is usually called the widow's free 
 bench. But, where dower is allowable, it matters not though 
 
 (fl) This doctrine was extended very far by a jury in Wales, where the 
 father and son were both hanged in one cart, but the son was supposed to 
 have survived the father, by appearing to struggle longest: whereby he be- 
 came seized of an estate in fee by survivorship, in consequence of which 
 seizin his widow had a verdict for her dower. (Cro. Eliz. 503.) 
 
 ^ " The rules in regard to dower in remainders and reversions, in estates 
 upon condition, and upon conditional limitation, are the same as in 
 the law of curtesy. (See ante, note 4, and Durando v. Durandn, 23 N. Y. 
 331 ; House v. Jackson, 50 N. Y. 161 ; Hatfield \. Sneden, 54 N. Y. 280.) 
 But if the estate depend upon a collateral limitation, as if conveyed to a man 
 and his heirs so long as a tree shall stand, its determination will defeat the 
 right of dower. (Kent's Comm. IV, 49 ; see 45 Hun, 564.) 
 
 It was formerly the rule in England, that a widow was not entitled to 
 Jower in the equitable estates of her husband, although a different rule pre- 
 vailed in regard to the husband's right of curtesy. But now it is provided 
 by statute that dower shall be had in such estates of inheritance. (3 & 4 Will, 
 IV. ch. 105.) In the United States it is the general rule that dower shall be 
 given in equitable, as well as in legal estates. Thus, the wife of a person 
 for whom property was held in trust, would have dower therein. But the 
 wife of a trustee has no dower in the trust property, which he holds foi the 
 benefit of another. {Cooper v. Whitney, 3 Hill, 95.) 
 
 When the husband's estate has been mortgaged, the wife will take dower 
 without regard to the mortgage, when the mortgage was given after marriage, 
 without her relinquishment of dower being evidenced by her becoming a party 
 to the instrument. But her right of dower will be subject to the mortgage : 
 (i) when the mortgage was given before marriage ; (2) when it was given after 
 marriage for the purchase-money of the premises ; (3) when it was given after 
 marriage, and she united in the conveyance. If, in these three last cases, the 
 land was sold for the payment of the mortgage, she would only have dower in 
 the surplus money, if any, which remained. {Coles v. Coles, 15 Johns. 319; 
 Titus V. Neilson, 5 Johns. Ch. 452 ; Swaine v. Perrine, 5 Johns. Ch. 482.) 
 But these various rules are subject to modification by statute, and may be 
 somewhat varied in different States. (See 105 111. 342; 61 Mich. 608.) 
 
3 1 6 OF FREEHOLDS, 
 
 the husband alien che lands during the coverture; tor he aliens, 
 them liable to dower. 
 
 3. Next, as to the manner in which a woman is to be en- 
 dowed. There are now subsisting four species of dower ; the fifth, 
 mentioned by Littleton, de la plus belle, having been abolished 
 together with the military tenures, of which it was a conse 
 quence. i. Dower by the common law ; or that which is before 
 described. 2. Dower by particular custom ; as that the wife 
 should have half the husband's lands, or in some places the 
 whole, and in some only a quarter. 3. Dower ad ostium eccle- 
 *133] sice : which is where tenant in * fee-simple of full age, 
 openly at the church door, where all marriages were formerly 
 celebrated, after affiance made and (Sir Edward Coke in his 
 translation of Littleton, adds) troth plighted between them, doth 
 endow the wife with the whole, or such quantity as he shall 
 please, of his lands ; at the same time specifying and ascertaining 
 the same ; on which the wife, after her husband's death, may 
 enter without farther ceremony. 4. Dower ex assensu patris ; 
 which is only a species of dower ad ostium ecclesiee, made when 
 the husband's father is alive, and the son by his consent, ex- 
 pressly given, endows his wife with parcel of his father's lands. 
 In either of these cases, they must (to prevent frauds) be made 
 in facie ecclesiee et ad ostium ecclesiee; non enim valent facta in 
 lecto mortali, nee in camerd, aut alibi ubi clandestina fuere con- 
 JugiaP- 
 
 It is curious to observe the several revolutions which the 
 doctrine of dower has undergone, since its introduction into 
 England. It seems first to have been of the nature of the dower 
 in gavelkind, before-mentioned ; viz. a moiety of the husband's 
 lands, but forfeitable by incontinency or a second marriage. By 
 the famous charter of Henry I., this condition of widowhood 
 and chastity was only required in case the husband left any 
 issue ; and afterwards we hear no more of it. Under Henry the 
 Second, according to Glanvil, the dower ad ostium ecclesiee was 
 the most usual species of dower ; and here, as well as in Nor- 
 mandy, it was binding upon the wife, if by her consented to, at 
 the time of marriage. Neither, in those days of feudal rigor, 
 
 '^ Dower ad ostium ecclesiee, and ex assensu patris have been abol- 
 ished in Ei.gland by statute. The only variety of dower of any importance 
 in this country is "dower by the commcn law," as modified by statute. 
 
NOT OF INHERITANCE. 317 
 
 was the husband allowed to endow her ad ostium ecclesia with 
 more than the third part of the lands whereof he then was seized, 
 though he might endow her with less ; lest by such liberal 
 endowments the lord should be defrauded of his wardships and 
 other feudal profits. But if no specific dotation was made at 
 the *church porch, then she was endowed by the common [*134 
 law of the third part (which was called her dos rationabilis) of 
 such lands and tenements as the husband was seized of at the 
 time of the espousals, and no other ; unless he specially engaged 
 before the priest to endow her of his future acquisitions : and, 
 if the husband had no lands, an endowment in goods, chattels, 
 or money, at the time of espousals, was a bar of any Jower in 
 lands which he afterwards acquired. In King John's magna 
 charta, and the first chapter of Henry III., no mention is made 
 of any alteration of the common law, in respect of the lands sub- 
 ject to dower : but in those of 1217 and 1224, it is particularly 
 provided, that a widow shall be entitled for her dower to the 
 third part of all such lands as the husband had held in his life- 
 time : yet in case of a specific endowment of less ad ostium 
 ecclesicB, the widow had still no power to waive it after her hus- 
 band's death. And this continued to be law during the reigns 
 of Henry III. and Edward I. In Henry IV.'s time it was denied 
 to be law, that a woman can be endowed of her husband's goods 
 and chattels; and, under Edward IV., Littleton lays it down 
 •expressly, that a woman may be endowed ad ostium [*135 
 ecclesicB with more than a third part ; and shall have her election, 
 after her husband's death, to accept such dower or refuse it, and 
 betake herself to her dower at common law. Which state of 
 uncertainty was probably the reason, that these specific dowers, 
 ad ostium ecclesice and ex assensu patris, have since fallen into 
 •■Qtal disuse. 
 
 I proceed, therefore, to consider the method of endowment 
 or assigning dower, by the common law, which is now the only 
 usual species. By the old law, grounded on the feudal exac- 
 tions, a woman could not be endowed without a fine paid to the 
 lord : neither could she marry again without his license ; lest she 
 should contract herself, and so convey part of the feud to the 
 lord's enemy. This license the lords took care to be well paid 
 lor ; and, as it seems, would sometimes force the dowager to a 
 second marriage, in order to gain the fine. But, to remedy these 
 
5i8 OF FREEHOLDS, 
 
 oppressions, it was provided, first by the charter of Henry I, 
 and afterwards by magna charta, that the widow shall pay 
 nothing for her marriage, nor shall be distrained to marry afresh, 
 if she chooses to live without a husband ; but shall not however 
 marry against the consent of the lord ; and farther, that nothing 
 shall be taken for assignment of the widow's dower, but that 
 she shall remain in her husband's capital mansion-house for 
 forty days after his death, during which time her dower shall be 
 assigned. These forty days are called the widow's quarantine, 
 a term made use of in law to signify the number of forty days, 
 whether applied to this occasion, or any other." The particular 
 lands, to be held in dower, must be assigned by the heir of the 
 husband, or his guardian ; not only for the sake of notoriety, but 
 also to entitle the lord of the fee to demand his services of the 
 heir, in respect of the lands so holden. For the heir by this 
 *136] entry becomes tenant *thereof to the lord, and the widow 
 is immediate tenant to the heir, by a kind of subinfeudation, or 
 under-tenancy completed by this investiture or assignment; 
 which tenure may still be created, notwithstanding the statute 
 of quia emptores, because the heir parts not with the fee-simple, 
 but only with an estate for life. If the heir or his guardian do 
 not assign her dower within the term of quarantine, or do assign 
 it unfairly, she has her remedy at law, and the sheriff is appoint- 
 ed to assign it. Or if the heir (being under age) or his guardian 
 assign more than she ought to have, it may be afterwards rem- 
 edied by writ of admeasurement of dower. If the thing of 
 which she is endowed be divisible, her dower must be set out by 
 metes and bounds ; but if it be indivisible, she must be endowed 
 specially ; as of the third presentation to a church, the third toll- 
 dish of a mill, the third part of the profits of an office, the third 
 sheaf of tithe, and the like." 
 
 12 The widow's right of quarantine is well established in this country, 
 though the period of its duration has been, in some States, changed by statute. 
 
 13 The proper methods for securing the assignment of dower are usually 
 prescribed by the statutes of the several States. If the assignment is not 
 made voluntarily by the tenant of the freehold, the usual practice is for the 
 widow to bring a suit in equity to determine her right, or an action of eject- 
 ment at law ; while in some States, she may apply to the probate or surrogate 
 court for an admeasurement of the dower. The suit in equity is generally 
 the most convenient and efficacious process, when there is any controversy 
 ia regard to the right of dower, since the rights of all the parties concerned 
 can be determined in a single proceeding. 
 
NOT OF INHERITANCE. 319 
 
 Upon preconcerted marriages, and in estates of considerable 
 consequence, tenancy in dower happens very seldom : for the 
 claim of the wife to her dower at the common law diffusing it- 
 self so extensively, it became a great clog to alienation, and was 
 otherwise inconvenient to families. Wherefore, since the altera- 
 tion of the ancient law respecting dower ad ostium ecclesia, 
 which hath occasioned the entire disuse of that species of dow- 
 er, jointures have been introduced in their stead, as a bar to the 
 claim at common law. Which leads me to inquire, lastly. 
 
 4. How dower may be barred or prevented. A widow may 
 be barred of her dower not only by elopement, divorce, being an 
 alien, the treason of tier husband," and other disabilities before- 
 mentioned, but also, by detaining the title deeds or evidences of 
 the estate from the heir, imtil she restores them : and, by the 
 statute of Gloucester, if a dowager aliens the land assigned her 
 for dower, she forfeits it ipso *facto, and the heir may re- [*137 
 cover it by action. A woman also may be barred of her dower, 
 by levying a fine, or suffering a recovery of the lands,'^ during 
 her coverture.^' But the most usual method of barring dowers is 
 by jointures, as regulated by the statute 27 Hen. VHI. ch. 10. 
 
 " Forfeiture of dower, on account of the husband's treason, has never 
 existed in the United States. So the rule in regard to the detention of 
 title-deeds never prevailed here. 
 
 '' The most common method of barring dower in the United States is for 
 the wife to unite in a conveyance of the property with the husband, appropri- 
 ate words being used in the instrument to indicate her release or relinquish- 
 ment of her right. It is usually required, in such cases, that the wife shall be 
 examined separately and apart from her husband, and malce acknowledg- 
 ment that she executes the instrument without any fear or compulsion from 
 him. A certificate to this effect should be endorsed upon the deed by the 
 officer before whom the acknowledgment is made. The practice, in this 
 respect, is generally governed by statute. (See Elmendorf v. Lockwood, 57 
 N. Y. 322 ; also 105 N. Y. 332.) But the wife is not bound by uniting in the 
 conveyance, if she were a minor at the time. {Priest v. Cummings, 16 
 Wend. 617.) 
 
 "By statute 3 & 4WilI. IV., ch. lo; (passed in 1834), known as the Dower 
 Act, the right of dower is now in England placed entirely within the control 
 of husbands, and may be barred by them at their pleasure. For, since that 
 year, no widow can be endowed of any land which shall have been disposed 
 of by her husband in his life-time, or by his will. So her dower may be 
 barred by a declaration in a conveyance to the husband, that she shall not be 
 entitled to dower, or a similar declaration in his will, or a devise to her of 
 any land out of which she might have been endowed. The consequence has 
 
320 OF FREEHOLDS, 
 
 A jointure, which, strictly speaking, signifies a joint estate, 
 limited to both husband and wife, but in common acceptation 
 extends also to a sole estate, limited to the wife only, is thus 
 defined by Sir Edward Coke ; " a competent livelihood of free- 
 hold for the wife, of lands and tenements ; to take effect, in 
 profit or possession, presently after the death of the husband, 
 for the life of the wife at least.'" This description is framed from 
 the purview of the statute 27 Henry VIII. ch. 10, before-men- 
 tioned ; commonly called the statute of uses, of which we shall 
 speak fully hereafter. At present I have only to observe, that 
 before the making of that statute, the greatest part of the land 
 of England was conveyed to uses ; the property or possession 
 of the soil being vested in one man, and the. use, or profits there- 
 of, in another ; whose directions, with regard to the disposition 
 thereof, the former was in conscience obliged to follow, and 
 might be compelled by a court of equity to observe. Now, 
 though a husband had the use of lands in absolute fee-simple, 
 yet the wife was not entitled to any dower therein ; he not be- 
 ing seized thereof : wherefore it became usual, on marriage, to 
 settle by express deed some special estate to the use of the hus- 
 band and his wife, for their lives, in joint-tenancy, or jointure ; 
 which settlement would be a provision for the wife in case she 
 survived her husband. At length the statute of uses ordained, 
 that such as had the use of lands should, to all intents and pur- 
 poses, be reputed and taken to be absolutely seized and pos- 
 sessed of the soil itself. In consequence of which legal seizin, 
 all wives would have become dowable of such lands as were 
 held to the use of their husbands, and also entitled at the same 
 time to any special lands that might be settled in jointure : had 
 *138] not the same statute provided, that *upon making such an 
 estate in jointure to the wife before marriage, she shall be for- 
 ever precluded from the dower. But then these four requisites 
 must be punctually observed : i. The jointure must take effect 
 immediately on the death of the husband. 2. It must be for hei 
 own life at least, and not pur auter vie, or for any term of years 
 
 been to quite effectually do away with the right of dower in England, excepi 
 in infrequent instances, where the husband does not desire to bar her right. 
 But in this country, wherever dower has been retained, no such extensive 
 power has been given to husbands, and the law of dower remains more upoi- 
 its common-law basis in this respect. 
 
NOT OF INHERITANCE. 321 
 
 or other smaller estate. 3. It must be made to herself, and no 
 other in trust for her. 4. It must be made, and so in the '^eed 
 particularly expressed to be in satisfaction of her whole dower, 
 and not of any particular part of it. If the jointure be made to 
 her after marriage, she has her election after her husband's 
 death, as in dower ad ostium ecclesicB, and may either accept it, 
 or refuse it and betake herself to her dower at common law ; for 
 ,'jhe was not capable of consenting to it during coverture. And 
 if, by any fraud or accident, a jointure made before marriage 
 proves to be on a bad title, and the jointress is evicted, or turned 
 out of possession, she»shall then (by the provisions of the same 
 statute) have her dower /r<? tanto at the common law. 
 
 There are some advantages attending tenants in dower that 
 do not extend to jointresses ; and so vice versa, jointresses are 
 in some respects more privileged than tenants in dower. Tenant 
 in dower by the old common law is subject to no tolls or taxes ; 
 and hers is almost the only estate on which, when derived from 
 the king's debtor, the king cannot distrain for his debt ; if con- 
 tracted during the coverture. But, on the other *hand, a [*139 
 widow may enter at once, without any formal process, on her 
 jointure land ; as she also might have done on dower ad ostium 
 ecclesim, which a jointure in many points resembles ; and the 
 resemblance was still greater, while that species of dower con- 
 tinued in its primitive state : whereas no small trouble, and a 
 very tedious method of proceeding, is necessary to compel a 
 legal assignment of dower. And, what is more, though dower be 
 forfeited by the treason of the husband, yet lands settled in 
 jointure remain unimpeached to the widow. Wherefore Sir 
 Edward Coke very justly gives it the preference, as being more 
 sure and safe to the widow, than even dower ad ostium ecclesia, 
 the most eligible species of any." 
 
 " The principles stated in the text, in regard to jointure are those estab- 
 lished and enforced in courts of law. But in courts of equity, different rules 
 are applied upon this subject, and a distinction is therefore taken between 
 legal jointure and equitable jointure. In equity, it is not necessary that the 
 provision for the wife should be a freehold estate in lands. An estate for 
 years, or a provision in money or personal property, will be suiBcient. The 
 provision may, moreover, be given to a person in trust for the wife, instead of 
 being settled upon the wife herself. So an actual settlement need not be 
 made upon the wife ; but an agreement to confer upon her a provision will be 
 sufficient, and its stipulations will be duly enforced. It is also an important 
 
 21 
 
322 OF ESTATES LESS THAN FREEHOLD. 
 
 CHAPTER IX. 
 
 [bL. COMM. BOOK II. CH. IX,] 
 
 Of Estates less than Freehold. 
 
 Of estates that are less than freehold, there are three sorts : 
 r. Estates for years : 2. Estates at will : 3. Estates by sufferance. 
 
 I. An estate for years is a contract for the possession vi 
 lands or tenements, for some determinate period ; and it takes 
 place where a man letteth them to another for the term of a cer- 
 tain number of years, agreed upon between the lessor and the 
 lessee,(fl) and the lessee enters thereon. If the lease be but for 
 
 rule in equity that the wife must give her consent to the provision made for 
 her benefit, or her dower will not be barred. If she is an infant, the consent 
 of her parent or guardian should be obtained. If the wife assent to a pro- 
 vision before marriage, her dower will be barred ; but if after marriage, she 
 may elect between dower and the provision. 
 
 In this country, the English law of jointures has been considerably changed 
 by statute in a number of the States. In some States, the distinction between 
 legal and equitable jointure is no longer maintained, and the subject is 
 governed entirely by statute. The tendency of legislation has been to adopt 
 the principles established in equity, as the law upon this subject, and to 
 allow valuable provisions of any kind to be given, while at the same time the 
 consent of the wife is required to be obtained. 
 
 Another important mode of barring dower is by giving the wife a testa- 
 mentary provision in the husband's will, which is declared to be in lieu or 
 bar of dower, or which cannot, consistently with the proper execution of the 
 provisions inthewill,be received together with dower. If there be such aposi- 
 tive declaration of the husband's intent to bar dower, or it be manifestly incon- 
 sistent for her to take both dower and the provision, she will have a right to 
 elect which she will take, but cannot receive both. Statutes usually pre- 
 scribe a time within which such election shall be signified. But, in other 
 cases, she will receive both dower and the provision given by the will. Any 
 kind of property may be given in a will in lieu of dower. {Konvalinka v. 
 Schlegel, 104 N. Y. 125 ; Akin v. Kellogg, 119 N. Y. 441 ; Lawrence's Appeal, 
 49 Conn. 411 ; Russell v. Minion, 42 N. J. Eq. 123.) 
 
 (a) We may here remark, once for all, that the terminations of " — or" 
 and " — ee" obtain, in law, the one an active, the other a passive, significa- 
 tion ; the former usually denoting the doer of any act, the latter him to whom 
 
OF ESTATES LESS THAN FREEHOLD. 323 
 
 half a year or a quarter, or any less time, this lessee is respected 
 as a tenant for years, and is styled so in some legal proceedings ; 
 a year being the shortest term which the law in this case takes 
 notice of. And this may, not improperly, lead us into a short 
 digression, concerning the division and calculation of time by 
 the English law. 
 
 The space oi a. fear is a determinate and well-known period, con- 
 sisting commonly of 365 days ; for, though in *bissextile [*141 
 or leap-years, it consists properly of 366, yet by the statute 21 
 Hen. III. the increasing day in the leap-year, together with the 
 preceding day, shall be accounted for one day only. That of a 
 month is more ambiguous : there being, in common use, two 
 ways of calculating months; either as lunar, consisting of 
 twenty-eight days, the supposed revolution of the moon, thirteen 
 of which make a year : or, as calendar months of unequal 
 lengths, according to the Julian division in our common alman- 
 acs, commencing at the calends of each month, whereof in a year 
 they are only twelve. A month in law is a lunar month or twenty- 
 eight days, unless otherwise expressed ; not only because it is al- 
 ways one uniform period, but because it falls naturally into a quar- 
 terly division by weeks. Therefore a lease for " twelve months " is 
 only for forty-eight weeks ; but if it be for " a twelvemonth " in 
 the singular number, it is good for the whole year. For herein 
 the law recedes from its usual calculation, because the ambiguity 
 between the two methods of computation ceases ; it being gen- 
 erally understood that by the space of time called thus, in the 
 singular number, a twelvemonth, is meant the whole year, con- 
 sisting of one solar revolution.' In the space of a day all the 
 twenty-four hours are usually reckoned, the law generally reject- 
 ing all fractions of a day, in order to avoid disputes. Therefore, if 
 I am bound to pay money on any certain day, I discharge the obli- 
 gation if I pay it before twelve o'clock at night ; after which the 
 following day commences. But to return to estates for years. 
 
 it is done. The feoffor is he that maketh a feoffment ; the feoffee is he to 
 whom it is made : the donor is one that giveth lands in tail ; the donee is he 
 who receiveth it : he that granteth a lease is denominated the lessor ; and 
 he to whom it is granted the lessee. (Litt. § 57.) 
 
 'The term " month " is generally held, in the United States, to denote a 
 calendar, and not a lunar month, unless otherwise expressed. This rule ap- 
 plies to all written instriunents, and is usually prescribed by statute. (2 Wall. 
 177.) 
 
324 OF EST A TES LESS THAN FREEHOLD. 
 
 These estates were originally granted to mere farmers ot 
 husbandmen, who every year rendered some equivalent te 
 money, provisions, or other rent, to the lessors or landlords: 
 but, in order to encourage them to manure and cultivate the 
 ground, they had a permanent interest granted them, not deter- 
 minable at the will of the lord. And yet their possession was 
 esteemed of so little consequence, that they were rather con- 
 sidered as the bailiffs or servants of the lord, who were tc 
 *142] *receive and account for the profits at a settled price, 
 than as having any property of their, own. And therefore they 
 were not allowed to have a freehold estate : but their interest 
 (such as it was) vested after their deaths in their executors, who 
 were to make up the accounts of their testator with the lord, 
 and his other creditors, and were entitled to the stock upon the 
 farm. The lessee's estate might also, by the ancient law, be at 
 any time defeated by a common recovery suffered by the tenant 
 of the freehold ; which annihilated all leases for years then subsist- 
 ing, unless afterwards renewed by the recoveror, whose title was 
 supposed superior to his by whom those leases were granted. 
 
 While estates for years were thus precarious, it is no wonder 
 that they were usually very short, like our modern leases upon 
 rack-rent ; and indeed we are told that by the ancient law no 
 leases for more than forty years were allowable, because any 
 longer possession (especially when given without any livery de- 
 claring the nature and duration of his estate) might tend to 
 defeat the inheritance. Yet this law, if ever it existed, was soon 
 antiquated ; for we may observe in Madox's collection of ancient 
 instruments, some leases for years of a pretty early date, which 
 considerably exceed that period : and long terms, for three hun- 
 dred years or a thousand, were certainly in use in the time of 
 Edward III., and probably of Edward I. But certainly when by 
 the statute 21 Hen. VIII. ch. 15. the termor (that is, he who is 
 entitled to the term of years) was protected against these fictitious 
 recoveries, and his interest rendered secure and permanent, long 
 terms began to be more frequent than before ; and were afterwards 
 extensively introduced, being found extremely convenient for 
 family settlements and mortgages : continuing subject, however, 
 *143] to the same rules of succession, *and with the same in- 
 feriority to freeholds, as when they were little better than tea- 
 ancies at the will of the landlord. 
 
OF ESTATES LESS THAN FREEHOLD. 325 
 
 Every estate which must expire at a period certain and pre- 
 fixed, by whatever words created, is an estate for years.^ And 
 therefore this estate is frequently called a term, terminus, be- 
 cause its duration or continuance is bounded, limited, and deter- 
 mined : for every such estate must have a certain beginning and 
 certain end. But id certum. est, quod certum reddi potest : there- 
 fore if a man make a lease to another, for so many years as J. S. 
 shall name, it is a good lease for years ; for though it is at pres- 
 ent uncertain, yet when J. S. hath named the years, it is then 
 reduced to a certainty. If no day of commencement is named 
 in the creation of tjiis estate, it begins from the making, or 
 delivery, of the lease. A lease for so many years as J. S. shall 
 live, is void from the beginning ; for it is neither certain, nor can 
 ever be reduced to a certainty, during the continuance of the 
 lease. And the same doctrine holds, if a parson make a lease of 
 his glebe for so many years as he shall continue parson of Dale ; 
 for this is still more uncertain. But a lease for twenty or more 
 years, if J. S. shall so long live, or if he should so long continue 
 parson, is good : for there is a certain period fixed, beyond which 
 it cannot last ; though it may determine sooner, on the death of 
 J. S. or his ceasing to be parson there. 
 
 We have before remarked, and endeavored to assign the 
 reason of the inferiority in which the law places an estate for 
 years, when compared with an estate for life, or an inheritance : 
 observing that an estate for life, even if it be per auter vie, is a 
 freehold ; but that an estate for a thousand years is only a chattel, 
 and reckoned part of the personal estate. Hence it follows, that a 
 lease for years may be made to commence ittfuturo, though a lease 
 for life cannot. As, if I grant lands to Titius to hold from Mich- 
 aelmas next for *twenty years, this is good ; but to hold from [*144 
 Michaelmas next for the term of his natural life, is void. For no 
 estate of freehold can commence in futuro ; because it cannot be 
 created at common law without livery of seizin, or corporal posses- 
 
 2 It is the general rule that leases for a term exceeding three years, must 
 be made in writing. Originally by the English statute regulating this matter 
 (known as the Statute of Frauds,) a lease for three years, or less, might be 
 made orally, and in some of the United States, the same rule still prevails. 
 But in others this period has been reduced. Thus, in New York, leases for 
 one year may be made orally, but not for any longer time. Provisions upon 
 this point will be found in the statutes of the several States. (75 N. Y. 205 ; 
 112 Pa. St 272.) 
 
326 OF ESTATES LESS THAN FREEHOLD. 
 
 sion of the land : and corporal possession cannot be given ot an 
 estate now, which is not to commence now, but hereafter. And 
 because no livery of seizin is necessary to a lease for years, such 
 lessee is not said to be seized, or to have true legal seizin of the 
 lands. Nnr indeed does the bare lease vest any estate in the 
 lessee ; but only gives him a right of entry on the tenement 
 which right is called his interest in the term, or interesse termini: 
 but when he nas actually so entered, and thereby accepted the 
 grant, the estate is then, and not before, vested in him, and he 
 \s possessed, not properly of the land, but of the term of years; 
 the possession or seizin of the land remaining still in him who 
 hath the freehold. Thus the word, term, does not merely 
 signify the time specified in the lease, but the estate also and 
 interest that passes by that lease ; and therefore the term may 
 expire, during the continuance of the time ; as by surrender, for- 
 feiture, and the like. For which reason, if I grant a lease to A 
 for the term of three years, and after the expiration of the said 
 term, to B for six years, and A surrenders or forfeits his lease 
 at the end of one year, B's interest shall immediately take effect : 
 but if the remainder had been to B from and after the expiration 
 of the said three years, or from and after the expiration of the said 
 time, in this case B's interest will not commence till the time is 
 fully elapsed, whatever may become of A's term. 
 
 Tenant for term of years hath incident to and inseparable 
 from his estate, unless by special agreement, the same estovers, 
 which we formerly observed that tenant for life was entitled to ; 
 that is to say, house-bote, fire-bote, plough-bote, and hay-bote ; 
 terms which have been already explained. 
 
 *145] *With regard to emblements, or the profits of lands 
 sowed by tenant for years, there is this difference between him 
 and tenant for life : that where the term of tenant for years de- 
 pends upun a certainty, as if he holds from midsummer for ten 
 years, and in the last year he sows a crop of corn, and it is not 
 ripe and cut before midsummer, the end of his term, the 
 landlord shall have it ; for the tenant knew the expiration of his 
 term, and therefore it was his own folly to sow what he could 
 never reap the profits of. But where the lease for years depends 
 upon an uncertainty ; as, upon the death of a lessor, being him- 
 self only tenant for life, or being a husband seized in right of his 
 wife ; or if the term of years be determinable upon a life or lives ; 
 
OF ESTATKS LESS THAN' FREEHOLD. 327 
 
 in all these cases the estate for years not being certainly to expire 
 at a time foreknown but merely by the act of God, the tenant, 
 or his executors, shall have the emblements in the same manner 
 that a tenant for life or his executors shall be entitled thereto. 
 Not so, if it determine by the act of the party himself : as if tenant 
 for years does any thing that amounts to a forfeiture : in which 
 case the emblements shall go to the lessor and not to the lessee, 
 who hath determined his estate by his own default.' 
 
 « There are many legal principles of much importance in the law of land- 
 lord and tenant, to which Blackstone makes no reference. A few of the 
 most important of these may be briefly noticed : — 
 
 I. The principal duties of a tenant for years. — The chief duties of the 
 tenant are : to pay rent, to refrain from denying the landlord's title, to make 
 ordinary repairs, to refrain from committing waste, and to strictly observe 
 and fulfil the conditions and covenants in the lease. In fact, this last clause 
 might ordinarily be deemed to embrace the tenant's general duties, since the 
 express provisions in the lease usually include most of the other obligations 
 mentioned. But if this were not the case, the duty to pay rent, etc., would 
 still exist, depending upon the occupancy of the premises under the contract, 
 (l ) If there were no covenant to pay rent, an action " for use and occupation,'' 
 as it is termed, may be brought to recover the reasonable value of the pos- 
 session of the premises for the term. (2) The duty to refrain from denying 
 the landlord's title, prohibits the tenant, when sued for rent, or for the pos- 
 session of the premises, from setting up in defence, that the landlord has no 
 title in the premises. Having accepted possession under the landlord, he is 
 bound to acknowledge his title. But if the tenant be evicted by one having 
 a superior title to the property, this obligation will no longer be binding upon 
 him : and there are other exceptions to the rule, not necessary to be here 
 noticed. {Tilyou v. Reynolds, 108 N. Y. 558; see 92 U. S. 107; 131 Mass. 
 566; 50 Mich. 2,2i-^ (3) The duty to make repairs is usually defined by the 
 terms of the lease, and assumed either by the landlord or the tenant, as they 
 may agree. But in the absence of any stipulations of this kind, no obligation 
 to repair would rest upon the landlord, and the tenant would only be bound to 
 make ordinary repairs. This duty usually extends no farther than to keep the 
 premises " wind and water tight." He should, for instance, repair the roof, if 
 it becomes leaky. (See Suydam v. Jackson, S4N. Y. 450 ; 52 N. Y. 512 ; 94 
 U. S. 53 ; 66 Wis. 500 ; 29 Minn. 385.) In making a lease, the landlord is not 
 regarded as impliedly warranting that the premises are tenantable or habitable, 
 and the tenant must examine carefully for himself in regard to their condition. 
 If he enters, he will be bound by the lease, though the premises are unsuitable 
 to occupy, unless the landlord were guilty of fraud, (i 18 N. Y. 1 10 ; 50 N. J. L. 
 167 ; 147 Mass. 471 ; 135 Mass. 380 ; 60 N. Y. 229 ; 29 Minn. 91.) (4) The 
 tenant must refrain from committing waste upon the premises. The meaning 
 of the term " waste " has been already explained under the topic of estates for 
 life. This subject is not infrequently regulated by stipulations in the lease. 
 
328 OF ESTATES LESS THAN FREEHOLD. 
 
 II. The second species of estates not freehold, are estates at 
 will. An estate at will is where lands and tenements are let by 
 one man to another, to have and to hold at the will of the lessor ; 
 
 (5) The conditions and covenants in the lease, are the provisions embodying 
 the agreements of the parties, and may be of any nature the parties see 
 fit to agree upon, if they are not in conflict with general principles of law. 
 A condition is in the nature of a proviso, and gives the landlord a right to 
 enter and recover possession of the premises, if its terms are not complied 
 with. A covenant is in the nature of a contract, and for a breach thereof, an 
 action for damages may be maintained. Frequently the same provision is 
 so drawn as to constitute both a condition and a covenant, so that the land- 
 lord may have a choice of remedies. Moreover, in the case of a covenant, a suit 
 in equity may sometimes be brought to secure the specific performance of its 
 stipulations. The landlord may be bound by covenants as well as the tenant, and 
 for a violation of them, the tenant may sue him. (See 44 & 45 Vict. k.. 41, ss. 10-15.) 
 
 II. Assignment and Sub-tenancy. — When a lease is made, there is said 
 to arise a two-fold privity between landlord and tenant — a privity of contract, 
 and a privity of estate. The former depends upon the agreement into whjch 
 the parties enter, the latter upon their interests in the property leased. If 
 the tenant transfers his entire interest in the whole or a part of the property 
 to a third person, this is called an "assignment.'' Thus, if the tenant holds 
 three houses under a lease for ten years, he may transfer one, two or three 
 of them to other persons for the whole period, and this will be an assign- 
 ment. The assignee, in such a case, becomes liable to the original landlord, 
 since, by the transfer, the privity of estate now subsists between these two. 
 But the first tenant is still liable to the landlord upon privity of contract, 
 though the privity of estate, so far as he is concerned, is ended. The land- 
 lord, however, can have but one satisfaction, though he may seek it from 
 either party; and if the original tenant is forced to pay, he has a remedy over 
 against the assignee. 
 
 But if the first tenant transfers only a part of his interest to another, 
 retaining a reversionary interest in himself, as if, having a house under lease 
 for ten years, he lets it to another for nine years, or for nine years and 364 days, 
 this is not an assignment, but a sub-tenancy. The landlord, in such a case, is 
 deemed to have neither privity of contract nor of estate with the sub-tenant, and 
 cannot recover rent from him. The sub-tenant is liable only to the original 
 lessee, who still remains liable to the landlord. (See Damainville v. Mann, 32 
 N.Y. 197 ; Stewart V. L.I.R. Co., 102N. Y.6oi ; Seoctonv. Chicago Storage Co., 
 21 N. E. Rep. 920 (111.) ; in Mass. a transfer of the entire term upon newcon- 
 rfz';zo«j has been held a sub-lease, 131 Mass. 161.) The landlord may also assign 
 his reversionary interest in the whole or a part of the premises, to third persons, 
 who will then be entitled to recover their respective portions of the rent from 
 the lessee. (See Moffatt v. Smith, 4 N. Y. 126 ; Leiter v. Pike, 127 III. 287 ; 
 44 & 45 Vict. c. 41, s. 10.) 
 
 III. Eviction. — The tenant may be deprived of his possession of the 
 premises, either by a stranger having a superior title to the property, or by 
 the landlord. This is called an eviction. If the eviction by a stranger be from 
 
OF ESTATES LESS THAN FREEHOLD. 329 
 
 and the tenant by force of this lease obtains possession.* Such 
 tenant hath no certain indefeasible estate, nothing that can be 
 assigned by him to any other ; because the lessor may determine 
 his will, and put him out whenever he pleases. But every estate 
 at will, is at the will of both parties, landlord and tenant ; so that 
 either of them may determine his will, and quit his connection 
 with the other at his own pleasure. Yet this must be understood 
 
 a part of the premises, the tenant will be bound to pay rent according to the 
 proportionate value of that part which remains; but if from the whole, he is 
 altogether relieved from the duty of paying rent to the landlord. (Home 
 Life Insurance Co. v. Shepnan, 46 N. Y. 370.) This is only true, however, of 
 subsequently accruing rent, and not of that which has already accrued. 
 (Giles y. Comstock, 4 N. Y. 270.) But if the tenant is evicted by the landlord, 
 from either the whole or a part of the premises, he is discharged from all 
 the obligations of the lease for the time being. No rent is, therefore, recover- 
 able for any portion of the premises of which he may still be in possession. 
 Eviction by the landlord may be either actual or constructive. It is actual 
 when there is a direct expulsion from the premises, or a deprivation of their 
 possession ; constructive, when the landlord does some act so seriously inter- 
 fering with the enjoyment and occupancy of the premises that the tenant is 
 justified in abandoning possession, and does abandon it in fact ; as if, for 
 example, the landlord lets one part of a house, and then converts the other 
 into a house of prostitution. (8 Cow. 727 ; 4 N. Y. 217 ; 132 Mass. 367 ; 90 
 N. Y. 293 ; but see 112 Mass. 8.) But it is only in certain extreme cases, that 
 the tenant will be justified in leaving the premises ; and if the cause is in fact 
 insuflScient to warrant such an act, though he judged otherwise, he will still 
 be responsible under the lease. {Hilliard v . JV. V. Coal Co., 41 O. St. 662 ; 
 see 106 Mass. 201 ; 55 N. Y. 280.) And the tenant must in fact leave the 
 premises. But a mere trespass upon the property by the landlord will not be 
 deemed an eviction. 
 
 At common law, if a tenant hired a house and lot, and the house was 
 burned down, he was still bound to pay rent. But this onerous rule has been 
 frequently changed, in modern tinies, by statute. But even at common law, 
 if a tenant merely hires a room in a house which is destroyed by. fire, his 
 liability to pay rent ceases. {Graves v. Berdan, 26 N. Y. 498; Harris \. 
 Heackman, 62 la. 411 ; Miller v. Benton, 55 Conn. 529-) 
 
 (There are various excellent treatises on the law of landlord and tenant, 
 to which the student is referred ; such as Taylor on Landlord and Tenant ; 
 Washburn on Real Property ; Wood on Landlord on Tenant.) 
 
 * When one enters upon land by permission of the owner for an indefinite 
 period, even without the reservation of any rent, he is, by implication of law, 
 a tenant at will. If he be placed upon the land as a mere occupier, without 
 any term prescribed or rent reserved, he is strictly a tenant at will. Thus, 
 where a householder permitted another to occupy rent free, the occupant was 
 held to be such a tenant. (Lamed v. Hudson, 60 N. Y. 102, and cases 
 cited; see 136 Mass. 532 ; 13 R. I. 467.) 
 
330 OF ESTATES LEbS THAN FREEHOLD. 
 
 •147J with soire restriction. *For if the tenant at will sows his 
 land, and the landlord before the corn is ripe, or before it is 
 reaped, puts him out, yet the tenant shall have the emblements, 
 and free ingress, egress, and regress, to cut and carry away the 
 profits. And this for the same reason upon which all the cases 
 of emblements turn ; viz., the point of uncertainty : since the 
 tenant could not possibly know when his landlord would deter- 
 mine his will, and therefore could make no provision against it ; 
 and having sown the land, which is for the good of the public, 
 upon a reasonable presumption, the law will not suffer him to be 
 a loser by it. But it is otherwise, and upon reason equally good, 
 where the tenant himself determines the will ; for in this case 
 <-he landlord shall have the profits of the land. 
 
 What act does, or does not, amount to a determination of the 
 vull on either side, has formerly been matter of great debate in 
 our courts. But it is now, I think, settled, that (besides the ex- 
 press determination of the lessor's will, by declaring that the 
 lessee shall hold no longer ; which must either be made upon the 
 land, or notice must be given to the lessee), the exertion of any 
 act of ownership by the lessor, as entering upon the premises 
 and cutting timber, taking a distress for rent, and impounding it 
 thereon, or making a feoffment, or lease for years of the land, to 
 commence immediately ; any act of desertion by the lessee, as 
 assigning his estate to another, or committing waste, which is an 
 act inconsistent with such a tenure, or, which is instar omnium, 
 the death or outlawry of either lessor or lessee ; puts an end to 
 or determines the estate at will. 
 
 The law is, however, careful, that no sudden determination of 
 the will by one party shall tend to the manifest and unforeseen 
 *148] prejudice of the other. This appears in the case of *em- 
 blements before mentioned ; and, by a parity of reason, the 
 lessee, after the determination of the lessor's will, shall have reas- 
 onable ingress and egress to fetch away his goods and utensils. 
 And if rent be payable quarterly or half-yearly, and the lessee 
 determines the will, the rent shall be paid to the end of the cur- 
 rent quarter or half year. And, upon the same principle, courts 
 of law have of late years leaned as much as possible against con- 
 struing demises, where no certain term is mentioned, to be ten- 
 ancies at will ; but have rather held them to be tenancies from 
 y^«r /(? _y^flr so long as both parties please, especially where an 
 
OF ESTATES LESS THAN FREEHOLD. 331 
 
 annual rent is reserved : in which case they will not suffer either 
 party to determine the tenancy even at the end of the year, with- 
 out reasonable notice to the other, which is generally understood 
 to be six months.^ 
 
 III. An estate at sufferance is where one comes into pos- 
 session of land by lawful title, but keeps it afterwards without any 
 title at all. As if a man takes a lease for a year, and after a year is 
 expired.continues to hold the premises without any fresh leave from 
 the owner of the estate. Or, if a man maketh a lease at will and 
 dies, the estate at will .is thereby determined : but if the tenant 
 continueth possession, he is tenant at sufferance. But no man 
 can be tenant at sufferance against the king, to whom no lachi f, 
 or neglect in not entering and ousting the tenant is ever im- 
 puted by law ; but his tenant, so holding over, is considered as an 
 absolute intruder. But, in the case of a subject, this estate may 
 be destroyed whenever the true owner shall make an actual entry 
 on the lands and oust the tenant : for, before entry, he cannot 
 maintain an action of trespass against the tenant by sufferance, 
 as he might against a stranger : and the reason is, because the 
 tenant being once in by a lawful title, the law (which presumes 
 no wrong in any man) will suppose him to continue upon a title 
 equally lawful ; unless the owner of the land by some public and 
 avowed act, such as entry is, will declare his continuance to be 
 tortious, or, in common language, wrongful. 
 *Thus stands the law, with regard to tenants by suf- [*151 
 
 ' Where premises were leased " for the term of one year and an indefinite period 
 thereafter," at an annual rent which the lessee agreed to pay, and he entered and occu- 
 pied several years, he was held to be a tenant from year to year. Such an estate 
 continues until determined by proper notice. It does not depend upon continuance 
 of possession, for the tenant cannot put an end to the tenancy, or his liability for 
 rent, by withdrawing from the occupancy of the premises. {Pugdey v. Aikin, 1 1 
 N. V. 494.) The six months for which notice is given must terminate with the end 
 of the tenant's year. 
 
 So, if a tenant for years holds over after the expiration of the lease by consent of 
 the landlord, he becomes a tenant from year to year, if there be no special agreement 
 of renewal between the parties, or a new lease entered into. (51 N. Y. 309; 60 Wis. 
 I ; 123 111. 280; 13 Atl. Rep. 122 (R. I.).) The implication in such a case is that 
 he holds the premises upon the same terms for another year. So a tenancy at will 
 may be changed into one from year to year by the payment and acceptance of rent. 
 (112 Pa. St. 272; 118 N. Y. 309.) In some States the doctrine of tenancy from year 
 to year is not received, but all such estates are deemed tenancies at will; but this is 
 not generally the case. (See 136 Mass. 532; 76 la. 760.) 
 
332 OF ESTATES UPON CONDITION. 
 
 ferance, and landlords are obliged in these cases to make formal 
 entries upon their lands, and recover possession by the legal pro- 
 cess of ejectment ; and at the utmost, by the common law, the 
 tenant was bound to account for the profits of the land so by him 
 detained. But now, by statute 4 Geo. II. ch. 28. in case any 
 tenant for life or years, or other person claiming under or by col- 
 lusion with such tenant, shall wilfully hold over after the deter- 
 mination of the term, and demand made and notice in writing 
 given, by him to whom the remainder or reversion of the 
 premises shall belong, for delivering the possession thereof ; such 
 person, so holding over or keeping the other out of possession, 
 shall pay for the time he detains the lands, at the rate of double 
 their yearly value. And, by statute 1 1 Geo. II. ch. 19. in case any 
 tenant, having power to determine his lease, shall give notice of 
 his intention to quit the premises, and shall not deliver up the 
 possession at the time contained in such notice, he shall thence- 
 forth pay double the former rent, for such time as he continues in 
 possession. These statutes have almost put an end to the prac- 
 tice of tenancy by sufferance, unless with the tacit consent of the 
 owner of the tenement.' 
 
 CHAPTER X. 
 
 [bL. COMM. — BOOK II. CH. X.] 
 
 Of Estates upon Condition. 
 
 Besides the several divisions of estates, in point of interest, 
 which we have considered in the three preceding chapters, there is 
 also another species still remaining, which is called an estate upon 
 condition ; being such whose existence depends upon the happen- 
 ing or not happening of some uncertain event, whereby the 
 estate may be either originally created, or enlarged, or finally 
 defeated. And these conditional estates I have chosen to re- 
 
 » Similar statutes have been passed in some of the United States. In 
 some States, it is further provided by statute that notice must be given to 
 the tenant at suiferance before he can be dispossessed of the premises. (See 
 48 Me. 388 ; 14 R. I. 581 ; 132 Mass. 346.) 
 
OF ESTATES UPON CONDITION. 333 
 
 serve till las., because they are indeed more properly qualifica- 
 tions of other estates, than a distinct species of themselves ; see- 
 ing that any quantity of interest, a fee, a freehold, or a term of 
 years, may depend upon these provisional restrictions. Estates 
 then, upon condition thus understood, are of two sorts : i 
 Estates upon condition implied; 2. Estates upon condition 
 expressed; under which last may be included, 3. Estates held 
 in vadio, gage, or pledge ; 4. Estates by statute merchant, or 
 statute staple ; 5. Estates held by elegit. 
 
 I. Estates upon condition implied in law, are where a grant 
 of an estate has a condition annexed to it inseparably, from its 
 essence and constitution, although no condition be expressed in 
 words. As if a grant be made to a man of an office, generally, 
 without adding other words ; the law tacitly annexes hereto a 
 secret condition, that the grantee shall duly execute his office, 
 on breach of which condition *it is lawful for the grantor, [*i53 
 or his heirs, to oust him, and grant it to another person. For an 
 office, either public or private, may be forfeited by mis-user or 
 non-user, both of which are breaches of this implied condition. 
 I. By mis-user, or abuse ; as if a judge takes a bribe, or a park- 
 keeper kills deer without authority. 2. By non-user, or neglect ; 
 which in public offices, that concern the administration of justice, 
 or the commonwealth, is of itself a direct and immediate cause 
 of forfeiture ; but non-user of a private office is no cause of for- 
 feiture, unless some special damage is proved to be occasioned 
 thereby. For in the one case delay must necessarily be occasion- 
 ed in the affairs of the public, which require a constant attention : 
 but, private offices not requiring so regular and unremitted a ser- 
 vice, the temporary neglect of them is not necessarily productive 
 of mischief : upon which account some special loss must be 
 proved, in order to vacate these. Franchises also, being regal 
 privileges in the hands of a subject, are held to be granted on 
 the same condition of making a proper use of them ; and there- 
 fore they may be lost and forfeited, like offices, either by abuse 
 or by neglect.* 
 
 •It is an implied condition, in the grant of a corporate franchise, that the 
 corporation shall fulfil the end or purpose for which it was formed, and that 
 it shall not exceed the powers with which it was vested, or usurp other func- 
 tions not committed to it either expressly or by necessary implication. In 
 case of a violation of such implied condition, a proceeding may be instituted, 
 
334 OF ESTATES UPON CONDITION. 
 
 Upon the same principle proceed all the forfeitures which 
 are given by law of life estates and others ; for any acts done by 
 the tenant himself, that are incompatible with the estate which 
 he holds. As if tenants for life or years enfeoff a stranger in 
 fee-simple : this is, by the common law, a forfeiture of their sev- 
 eral estates; being a breach of the condition which the law 
 annexes thereto, viz. that they shall not attempt to create a great- 
 er estate than they themselves are entitled to." So if any ten- 
 ants for years, for life, or in fee, commit a felony ; the king or 
 other lord of the fee is entitled to have their tenements, because 
 their estate is determined by the breach of the condition, " that 
 they shall not commit felony," which the law tacitly annexes to 
 every feudal donation.f 
 
 *154] *n. An estate on condition expressed in the grant 
 itself is where an estate is granted, either hx fee-simple or other- 
 wise, with an express qualification annexed, whereby the estate 
 granted shall either commence, be enlarged, or be defeated, upon 
 performance or breach of such qualification or condition. These 
 conditions are therefore either precedent, or subsequent. Prece- 
 dent are such as must happen or be performed before the estate 
 can vest or be enlarged : subsequent are such, by the failure or 
 non-performance of which an estate already vested may be de- 
 feated.^ Thus, if an estate for life be limited to A upon his 
 
 I See/oj/, page 1036, note i. 
 
 in behalf of the State, to forfeit the corporate charter, and thus put an end 
 to the existence of the corporation. {Comm. v. Commercial Bk., 28 Pa. St. 
 389 ; In re Elevated R. Co., 70 N. Y. 337 ; see 39 N. J. L. 28 ; in N. Y. I .) 
 
 2 This cause of forfeiture no longer exists in the English law. It is, 
 moreover, the general rule in the United States, that the conveyance of a 
 larger estate than the grantor possesses only operates to transfer the estate 
 which he actually owns, and does not occasion a forfeiture. In a number of 
 the States, there are statutes to this effect. 
 
 8 No precise technical words are required to render a condition either prece- 
 dent or subsequent ; and its nature must, therefore, be determined, with refer- 
 ence to this distinction, by a consideration of the intent of the parties, as evi- 
 denced by their language and acts. In cases of ambiguity, the tendency is to fa- 
 vor that construction which would make a condition subsequent rather than 
 precedent, since the estate thus becomes a vested one, and the vesting is not 
 referred to the future. If, therefore, the act or condition required does not 
 necessarily precede the vesting of the estate, but may accompany or follow 
 it, and if the act maybe done as well after as before the vesting of the estate, 
 or if, from the nature of the act to be performed and the time required foi 
 its perfonnance, it is evidently tne intention of the parties that the estate 
 
OF ESTATES UPON CONDITION. 335 
 
 marriage with B, the marriage 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 times limited, it shall be lawful fcfr him and his heirs to re- 
 enter, and avoid the estate : in this case the grantee and his heirs 
 have an estate upon condition subsequent, which is defeasible if 
 the condition be not strictly performed. To this class may also 
 be referred all base fees, and fee-simples conditional at the com- 
 mon law. Thus an estate to a man and his heirs, tenants of the 
 manor of Dale, is an estate on condition that he and his heirs 
 continue tenants of that manor. And so, if a personal annuity 
 be granted at this day to a man and the heirs of his body, as 
 this is no tenement within the statute of Westminster the second, 
 it remains, as at common law, a fee-simple on condition that the 
 grantee has heirs of his body. Upon the same principle depend 
 all the determinable estates of freehold, which we mentioned in 
 the eighth chapter : as durante vidnitate &c. ; these are estates 
 upon condition that the grantees do not marry, and the like. 
 *155] And, on the breach of any of these *subsequent conditions 
 by the failure of these contingencies ; by the grantee's not con- 
 tinuing tenant of the manor of Dale, by not having heirs of his 
 body, or by not continuing sole ; the estates which were respect- 
 ively vested in each grantee are wholly determinable and void. 
 
 A distinction is however made between a cottditio7i 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, 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 
 unman-ied, or until out of the rents and profits he shall have 
 made 500/. and the like. In such case the estate determines as 
 soon as the contingency happens (when he ceases to be parson, 
 
 shall vest, and the grantee perforin the act after taking possession, then the 
 condition is subsequent. ( Underhill v. Saratoga and Washington R. R. Co., 
 20 Barb. 455, 460; ParmeUe v. Oswego, Sr'c., R. Co., 6 N. Y. 74; see 5 
 Wall. 119.) 
 
336 OF ESTATES UPON CONDITION. 
 
 marries a wife, or has received the 500/.) and the next subse- 
 quent estate, which depends upon such determination, be- 
 comes 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 ex- 
 pressly upon condition to be void upon the payment of 40/. ty 
 the grantor, or so that the grantee continues unmarried, ox pro- 
 vided he goes to York, &c.,^ 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.f 
 Yet, though strict words of condition be used in the creation ot 
 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 granted 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 con- 
 *156] strues to be a limitation and not a *condition : because if 
 it were a condition, then, upon the breach thereof, only A or his 
 representatives could avoid the estate by entry, and so D's re- 
 mainder 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 the condition. 
 
 In all these instances, of limitations or conditions subsequent, 
 it is to be observed, that so long as the condition, either express 
 or implied, either in deed or in law, remains unbroken, the 
 grantee may have an es^^ate of freehold, provided the estate .upon 
 ' which such condition is annexed, be in itself of a freehold nature; 
 as if the original grant express either an estate of inheritance, 
 or for life ; or no estate at all, which is constructively an estate 
 for life. For, the breach of these conditions being contingent 
 and uncertain, this uncertainty preserves the freehold ; because 
 the estate is capable to last for ever, or at least for the life of the 
 tenant, supposing the condition to remain unbroken. But where 
 
 \ See SchuUnberg v. Harriman, 21 Wall. 44 ; JVico/t v. Erie R. Co., 12 N. Y. lai. 
 
OF ESTATES UPON CONDITION. 337 
 
 the estate is at the utmost a chattel incerest, which must deter 
 mine at a time certain, and may determine sooner (as a grant 
 far ninety-nine years, provided A, B, and C, or the survivor of 
 them, shall so long live), this still continues a mere chattel, and 
 is not, by such its uncertainty, ranked among estates of free- 
 hold. 
 
 These express conditions, if they be impossible at the time of 
 their creation, or afterwards become impossible by the act of 
 God or the act of the feoffor himself, or if they be contrary to 
 law, or repugnant to the nature of the estate, are void.f In anj 
 of which cases, if th^ be conditions subsequent, that *is, [*157 
 to be performed after the estate is vested, the estate shall be- 
 come absolute in the tenant. As if a feoffment be made to a 
 man in fee-simple, on condition that unless he goes 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 case he aliens in 
 fee ; that then and in any of such cases the estate shall be va- 
 cated and determine : here the condition is void, and the estate 
 made absolute in the feoffee. For he hath by the grant the es- 
 tate vested in him, which shall not be defeated afterwards by a 
 condition either impossible, illegal, or repugnant. But if the 
 condition be precedent, 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 condition 
 being precedent, the estate which depends thereon is also void, 
 and the grantee shall take nothing by the gtrmt : for he hath no 
 estate until the condition be performed. 
 
 There are some estates defeasible upon condition s.ibsequent, 
 that require a more peculiar notice. Such are : — 
 
 III. Estates held in vadio, in gage, or pledge ; which are of 
 two kinds, vivum vadium, or living pledge ; and mortuum vadi- 
 um, dead pledge, or mortgage. 
 
 "Vivum vadium, or living pledge, is when a man borrows a 
 sum (suppose 200/.) of another ; and grants him an estate, as of 
 20lper annum, to hold till the rents and profits shall repay the 
 sum so borrowed. This is an estate conditioned to be void, as 
 soon as such sum is raised. And in this case the land or pledge 
 is .said to be living ; it subsists, and survives the debt : and im- 
 mediately on the discharge of that, results back to the borrower, 
 
 t See Davis v. Gray, i6 Wall. 203: 44 & 45 Vict. c. 41; see ante, p. 293, 11. 7. 
 22 
 
338 OF ESTATES UPON CONDITION. 
 
 But mortuum vadium, a dead pledge, or mortgage (which is much 
 more common than the other), is where a man borrows of anoth- 
 *158] er a speciiic sum (e. g. 200/.) *and grants him an estate 
 infee,fon condition that if he, the mortgagor, shall repay the 
 mortgagee the said sum of 200/. on a certain day mentioned in 
 the deed, that then the mortgagor may re-enter on the estate so 
 granted in pledge ; or, as is now the more usual way, that then 
 the mortgagee shall re-convey the estate to the mortgagor : in this 
 case, the land, which is so put in pledge, is by law, in case of 
 non-payment at the time limited, for ever dead and gone from 
 the mortgagor ; and the mortgagee's estate in the lands is then 
 no longer conditional, but absolute. But, so long as it con- 
 tinues conditional, that is, between the time of lending the money, 
 and the time allotted for payment, the mortgagee is called tenant 
 in mortgage.^ But as it was formerly a doubt, whether, by taking 
 
 * The statements in the text embody the common-law doctrine in regard 
 to mortgages, as established at an early period in English jurisprudence. 
 " A mortgage at common-law may be defined to be an estate created by a 
 conveyance, absolute in its form, but intended to secure the performance of 
 some act, such as the payment of money and the like, by the grantor or some 
 other person, and to become void, if the act is performed agreeably to the 
 terms prescribed at the time of making such conveyance. It is, therefore, 
 an estate defeasible by the performance of a condition subsequent." (Wash- 
 burn on Real Prop. ii. 36.) But in courts of equity, a different theory was 
 established upon this subject. The debt was regarded as the principal thing, 
 and the land as a mere pledge or security for the payment of the debt. The 
 mortgagee was not deemed to be the owner of the land, but merely to have 
 an interest therein of a personal nature, and a right of enforcing against it 
 his claim, if the debt were not finally paid. Hence, by the common-law, 
 the mortgagee, having an actual estate in the premises, might devise it by 
 will, or it would descend to his heirs ; but in equity, the estate remained in 
 the mortgagor, subject to the lien of the mortgage, and might be trans- 
 ferred to others, or would pass to his heirs, with this lien upon it. This 
 distinction has caused a noteworthy diversity in the law of mortgages, as 
 established in the different States of this country. In some States, the 
 common-law doctrine has been made the basis of the law of mortgages 
 therein prevailing ; while in others, the equitable theory has been substan- 
 tially adopted, and is enforced even in courts of law. In still other States, 
 there has been a process of amalgamation of the principles of law and of 
 equity upon this subject, and they have been variously modified and combined 
 so as to form one harmonious, composite system. And it should further be 
 said that, in all the States, there has been to some extent such a process of 
 assimilation of these diverse doctrines. The rigid theory of the old common- 
 law is nowhere maintained without modification. Thus, though it is the 
 
 t In England, covenants for title are now implied in mortgages ; such cove- 
 '\nts are usually inserted in this country. (44 & 45 Vict. c. 41.) 
 
OF ESTATES UPON CONDITION. 339 
 
 such estate in fee, it did not become liable to the wife's dower, 
 and other incumbrances of the mortgagee (though that doubt 
 has been long ago overruled by our courts of equity) it therefore 
 became usual to grant only a long term of years by way of mort- 
 gage ; with condition to be void on repayment of the mortgage- 
 money : which course has been since pretty generally continued, 
 principally because on the death of the mortgagee such term be- 
 comes vested in his personal representatives, who alone are enti- 
 tled in equity to receive the money lent, whatever nature the 
 mortgage may happen to be. 
 
 As soon as the estate is created, the mortgagee may immedi- 
 ately enter on the lands ; but is liable to be dispossessed, upon 
 performance of the condition by payment of the mortgage- 
 money at the day limited.' And therefore the usual way is to 
 
 established rule in some States that the mortgagee receives the freehold by 
 the mortgage-deed, yet he is only regarded as guasi-0'<nn&T as between him- 
 self and the mortgagor; and the latter is considered with reference to third 
 persons, as owner of the estate, subject to the mortgage, and he may 
 devise or grant it, and it will descend to his heirs, and it is generally made 
 liable for the payment of his debts. By force of statute, established usage, 
 or agreement in the mortgage, it is the almost invariable practice in all juris- 
 dictions for the mortgagor to retain possession of the mortgaged premises 
 until default of payment. 
 
 The equitable doctrine with reference to ordinary mortgages, which is 
 above referred to, must be distinguished from the subject of equitable mort- 
 gages. These are mortgages which are only valid in courts of equity, but 
 would not be so enforceable in courts of law. Thus, if a mortgage in the 
 ordinary form be defective through non-observance of some requisite formal- 
 ity of execution, it may, nevertheless, be valid as an equitable mortgage. So 
 an agreement to mortgage may be specifically enforced in equity, though not 
 in law, and the execution of a mortgage required. Another form of equita- 
 ble mortgage existing in England, and in some of the United States, is that 
 " by deposit of title-deeds," as where a debtor deposits his title-deeds with 
 the creditor as security for a loan. So the vendor of real estate is deemed 
 generally in equity to have a lien upon the estate sold for the unpaid pur- 
 chase-money, and this vendor's lien is virtually an equitable mortgage. 
 
 'The condition upon which the land is conveyed is termed the "defeas- 
 ance." It is not necessary that this should be inserted in the mortgage-deed, 
 though this is the usual practice and is to be preferred. But if it be em- 
 bodied in a separate instrument, this will be referred to the date of the prinr 
 cipal deed, and they will be construed together. And even though a deed be 
 absolute on its face, it is the general rule in courts of equity, that it may be 
 shown, even by parol evidence, to have been intended by the parties as a 
 mortgage, and it will be effectuated as such, in order that this intent may b« 
 fulfilled, In some Stat&s, this rule is applied even in courts of law. 
 
340 OF ESTATES UPON CONDITION. 
 
 agree that the mortgagor shall hold the land tin the day as- 
 signed for payment ; when, in case of failure, whereby the estate 
 becomes absolute, the mortgagee may enter upon it and take 
 possession, without any possibility at law of being afterwards 
 evicted by the mortgagor, to whom the land is now for evei 
 dead. But here again the courts of equity interpose ; and, 
 *159] though a mortgage be thus forfeited, and the *estate 
 absolutely vested in the mortgagee at the common law, yet they 
 will consider the real value of the tenements compared with the 
 sum borrowed. And, if the estate be of greater value than the 
 sum lent thereon, they will allow the mortgagor at any reason- 
 able time to recall or redeem his estate ; paying to the mort- 
 gagee his principal, interest, and expenses : for otherwise, in 
 strictness of law, an estate worth looo/. might be forfeited for 
 non-payment of lOo/., or a less sum. This reasonable advantage, 
 allowed to mortgagors, is called the equity of redemption : ' 
 and this enables a mortgagor to call on the mortgagee, who has 
 possession of his estate, to deliver it back and account for the rents 
 and profits received, on payment of his whole debt and interest ; 
 thereby turning the mortuum into a kind of vivum vadium. But, 
 on the other hand, the mortgagee may either compel the sale of 
 the estate, in order to get the whole of his money immediately ; or 
 else call upon the mortgagor to redeem his estate presently, or 
 in default thereof, to be for ever foreclosed from redeeming the 
 same ; that is, to lose his equity of redemption without possibihty 
 of recall.'' And also, in some cases of fraudulent mortgages, 
 
 ° This right of redemption which the mortgagor possesses is, under the 
 modern law of mortgages, a substantial right of property, constituting the 
 mortgagor's estate or interest in the land, and measured in value by the 
 worth of the premises over and above the mortgage incumbrance. The 
 mortgagor may assign or devise it, mortgage it to another person, thus mak- 
 ing a second mortgage upon the same property, or it will descend to his 
 heirs. In like manner it will be subject to dower and curtesy, liable for 
 debts, etc. Not only the mortgagor may redeem, but any person who ob- 
 tains an interest in the land under the mortgagor after the making of the 
 mortgage. ( See Bell v. New York, lo Paige, 49 ; Grant v. Duane, 9 Johns. 
 S91 ; Clark v. Reyburn, 8 Wall. 318; JVewhallw. Lynn Bk., lol Mass. 428.) 
 
 ' This form of foreclosure, which extinguishes the interest of the mort- 
 gagor in the land, and makes the mortgagee absolute owner of the property, 
 is termed in law a " strict foreclosure." This is still the prevalent practice in 
 the New England States. But a method of foreclosure by sale of the premises 
 has been generally established in most of the other States, the proceeds of the 
 
OF ESTATES UPON CONDITION. 341 
 
 the fraudulent mortgagor forfeits all equity of redemption what 
 soever. It is not however usual for mortgagees to take posses- 
 sion of the mortgaged estate, unless where the security is 
 precarious, or small ; or where the mortgagor neglects even the 
 payment of interest : when the mortgagee is frequently obliged 
 to bring an ejectment, and take the land into his own hands in 
 the nature of a pledge, or the pignus of the Roman law : whereas, 
 while it remains in the hands of the mortgagor, it more resem- 
 bles their hypotheca, which was, where the possession of the thing 
 pledged remained with the debtor. But by statute 7 Geo. II. ch. 
 20, after payment or tender by the mortgagor of principal, inter- 
 est, and costs, the mortgagee can maintain no ejectment, but 
 may be compelled to re-assign his securities. In Glanvil's 
 time, when the universal method of conveyance was by livery of 
 seizin *or corporal tradition of the lands, no gage or [*160 
 pledge of lands was good unless possession was also delivered 
 to the creditor ; " si non sequatur ipsius vadii traditio, curia 
 domini regis hujusmodi privatas conventiones tueri non solet ; " 
 for which the reason given is, to prevent subsequent and fraudu- 
 lent pledges of the same land : " cian in tali casu possit eadent 
 res pluribus aliis creditoribus ttim prius turn posterius invadiari" 
 And the frauds which have arisen since the exchange of these 
 public and notorious conveyances for more private and secret 
 bargains, have well evinced the wisdom of our ancient law.' 
 
 sale being applied to the satisfaction of the mortgage debt, and the surplus, 
 if any, returned to the mortgagor, or distributed among his other creditors. 
 In some of these States, strict foreclosure may still be resorted to, though 
 this is very uncommon. The forms of procedure in obtaining a foreclosure 
 are generally prescribed in detail by statute. (See 43 N. Y. 469 ; 130U. S. 43.) 
 
 It is also a frequent practice to insert in a mortgage-deed a power of sale, 
 which empowers the mortgagee to sell the premises, in case there is default 
 of payment, and use the avails thus obtained for the liquidation of the debt. 
 This affords a prompt and efficacious remedy, without the necessity of in- 
 stituting formal proceedings for a foreclosure. This remedy, however, is 
 cumulative, and the mortgage may be foreclosed in the regular way, if desired. 
 The terms of the power of sale must be strictly complied with ; and if addi- 
 tional regulations are prescribed by statute (as is sometimes the case) in re- 
 gard to fte method or time of sale, etc., these must also be carefully ob- 
 served. (See Jencks \. Alexander, 11 Paige, 619; Lawrence v. Farmer^ 
 Loan &* Trust Co., 13 N. Y. 200, 642 ; also 92 U. S. 142 ; 135 Mass. 306.) 
 
 ' (Upon the subject of mortgages may be consulted, Washburn on ReaJ 
 Estate, 2d volume ; Jones on Mortgages ; Kent's Commentaries, lectunc 
 Iviii. ; and Coote on Mortgages.) 
 
342 OF ESTATES UPON CONDITION. 
 
 IV. A fourth species of estates, defeasible on condition siibie« 
 quent, are tliose held by statute merchant, and statute staple ; 
 which are very nearly related to the vivum vadium before men- 
 tioned, or estate held till the profits thereof shall discharge a 
 debt liquidated or ascertained. For both the statute merchant 
 and statute staple are securities for money ; the one entered 
 into before the chief magistrate of some trading town, pursuant 
 to the statute 1 3 Edw. I. de mercatoribtts, and thence called a 
 statute merchant ; the other pursuant to the statute 27 Edw. 
 III. ch. 9 before the mayor of the staple, that is to say, the grand 
 mart for the principal commodities or manufactures of the king- 
 dom, formerly held by act of parliament in certain trading 
 towns, from whence this security is called a statute staple. 
 They are both, I say, securities for debts acknowledged to be 
 due ; and originally permitted only among traders, for the bene- 
 fit of commerce ; whereby not only the body of the debtor may 
 be imprisoned, and his goods seized in satisfaction of the debt, 
 but also his lands may be delivered to the creditor, till out of the 
 rents and profits of them the debt may be satisfied ; and, during 
 such time as the creditor so holds the lands, he is tenant by 
 statute merchant or statute staple. There is also a similar 
 security, the recognizance in the nature of a statute staple, 
 acknowledged before either of the chief justices, or (out of term) 
 before their substitutes, the mayor of the staple at Westminster 
 and the recorder of London ; whereby the benefit of this mer- 
 cantile transaction is extended to all the king's subjects in 
 general, by virtue of the statute 23 Hen. VIII. ch. 6, amended 
 by 8 Geo. I. ch. 25, which directs such recognizances to be en- 
 rolled and certified into chancery. But these by the statute of 
 frauds, 29 Car. II. ch. 3, are only binding upon the lands in the 
 hands of bona fide purchasers, from the day of their enrollment, 
 which is ordered to be marked on the record. 
 
 V. Another similar conditional estate, created by operation 
 of law, for security and satisfaction of debts, is called an *estate 
 *161] by elegit. What an elegit is, and why so called will be 
 explained in the third part of these commentaries. At present 
 I need only mention, that it is the name of a writ, founded on 
 the statute of Westm. 2, by which, after a plaintiff has obtained 
 judgment for his debt at law, the sheriff gives him possession 
 of one half of the defendant's lands and tenements, to be occit 
 
OF ESTATES UPON CONDITION. 343 
 
 pied and enjoyed until his debt and damages are fully paid : and 
 during the time he so holds them, he is called tenant by elegit. 
 It is easy to observe, that this is also a mere conditional estate, 
 defeasible as soon as the debt is levied. But it is remarkable 
 that the feudal restraints of alienating lands, and charging them 
 with the debts of the owner, were softened much earlier and 
 much more effectually for the benefit of trade and commerce, 
 than for any other consideration. Before the statute of quia 
 emptores, it is generally thought that the proprietor of lands 
 was enabled to alienate no more than a moiety of them : the 
 statute therefore of Westm. 2, permits only so much of them to 
 be affected by the process of law, as a man was capable of alien- 
 ating by his own deed. But by the statute de mercatorihus 
 (passed in the same year) the whole of a man's lands was liable 
 to be pledged in a statute merchant, for a debt contracted in 
 trade ; though one half of them was liable to be taken in execu- 
 tion for any other debt of the owner.' 
 
 I shall conclude what I had to remark of these estates, by 
 statute merchant, statute staple, and elegit, with the observation 
 of Sir Edward Coke. " These tenants have uncertain interests 
 in lands and tenements, and yet they have but chattels and no 
 freeholds ; " (which makes them an exception to the general 
 rule) " because though they may hold an estate of inheritance, 
 or for life, ut liberum tenementutn, until their debt be paid ; yet 
 it shall go to their executors : for ut is similitudinary ; and though 
 to recover their estates, they shall have the same remedy (by 
 assize) as a tenant of the freehold shall have, yet it is but the 
 "similitude of a freehold, and nullum simile est idem." [*162 
 
 » The forms of security for debt by statute merchant and statute staple 
 are hdw entirely disused in England, and the remedy by writ of elegit, -whxcYi 
 has been considerably extended in its scope, has now talcen their place. By 
 the English law, as it now stands, the whole of a debtor's lands may be ap- 
 plied to the satisfaction of his debts, instead of the half, as formerly. In 
 the United States, there are none of these peculiar estates in existence, 
 except elegit in one or two States. There are statutory provisions in the 
 several States, providing for the application of a debtor's real estate to the 
 satisfaction of his indebtedness. As a general rule, the real estate is only 
 resorted to for this purpose when the personal property, which is first ap- 
 plied, has been found insufficient. The usual method is to sell the real 
 property, and pay the proceeds to the creditors ; but in some States, the 
 property itself is divided among the creditors, if in its nature susceptible of 
 division. 
 
344 OF EST A TES IN POSSESSION, 
 
 This indeed only proves them to be chattel interests, because 
 they go to the executors, which is inconsistent with the nature 
 of a freehold ; but it does not assign the reason why these 
 estates, in contradistinction to other uncertain interests, shall 
 vest in the executors of the tenant and not the heir ; which is 
 probably owing to this ; that, being a security and remedy pro- 
 vided for personal debts due to the deceased, to which debts the 
 executor is entitled, the law has therefore thus directed their 
 succession; as judging it reasonable from a principle of natural 
 equity, that the security and remedy should be vested in those 
 to whom the debts if recovered would belong. For, upon the 
 same principle, if lands be devised to a man's executor, until out 
 of the profits the debts due from the testator be discharged, this 
 interest in the lands shall be a chattel interest, and on the death 
 of such executor shall go to his executors : because they, being 
 liable to pay the original testator's debts, so far as his assets 
 will extend, are in reason entitled to possess that fund out ot 
 which he has directed them to be paid.^ 
 
 CHAPTER XI. 
 
 [bL. COMM. — BOOK II. CH. XI.] 
 Of Estates in Possession, Remainder and Reversion. 
 
 Hitherto we have considered estates solely with regard tc 
 their duration, or the quantity of interest which the" owners have 
 therein. We are now to consider them in another view ; with 
 regard to the time of their enjoyment, when the actual pernancy 
 of the profits (that is, the taking, perception, or receipt, of 
 the rents and other advantages arising therefrom) begins. Estates 
 therefore with respect to thii? consideration, may either be in 
 possession, or in expectancy : and of expectancies there are two 
 sorts ; one created by the act of the parties, called a remainder; 
 the other by act of law, and called a reversion. 
 
 I. Of estates in possession (which are sometimes called estates 
 executed, whereby a present interest passes to and resides 
 
 y By statute i Vict. c. 26, s. 30, the executor now takes the fee by such a devise, unless the will 
 tunits to him a less estate. (See/oi/, p. 604, n. 11.) 
 
REMAINDER AND REVERSION. 345 
 
 in the tenant, not depending on any subsequent circumstance or 
 contingency, as in the case of estates executory), there is little or 
 nothing peculiar to be observed. All the estates we have hitherto 
 spoken of are of this kind ; for, in laying down general rules, we 
 usually apply them to such estates as are then actually in the 
 tenant's possession. But the doctrine of estates in expectancy 
 contains some of the nicest and most abstruse learning Id tnc 
 English law. These will therefore require a minute discussion, 
 and demand some degree of attention. 
 
 II. An estate then in remainder may be defined to be, an 
 estate limited to take effect and be enjoyed after another estate 
 is determined.' *As if man seized in fee-simple granteth [*164 
 lands to A for twenty years, and, after the determination of the 
 said term, then to B and his heirs for ever : here A is tenant for 
 years, remainder to B in fee. In the first place an estate 
 for years is created or carved out of the fee, and given to A ; and 
 the residue or remainder of it is given to B. But both these 
 interests are in fact only one estate ; the present term of years 
 and the remainder afterwards, when added together, being equal 
 only to one estate in fee. There are indeed different /«r^j, but 
 they constitute only one whole : they are carved out of one and 
 the same inheritance : they are both created, and may both 
 subsist, together ; the one in possession, the other in expectancy. 
 So if land be granted to A for twenty years, and after the deter- 
 mination of the said term to B for life ; and after the determina- 
 tion of B's estate for life, it be limited to C and his heirs for ever : 
 this makes A tenant for years, with remainder to B for life, re- 
 mainder over to C in fee. Now here the estate of inheritance 
 undergoes a division into three portions : there is first A's estate 
 for years carved out of it ; and after that B's estate for life ; and 
 then the whole that remains is limited to C and his heirs. 
 And here also the first estate, and both the remainders, for life 
 and in fee, are one estate only ; being nothing but parts or por- 
 tions of one entire inheritance: and if there were a hundred 
 remainders, it would still be the same thing : upon a principle 
 grounded in mathematical truth, that all the parts are equal, and 
 
 ' The common-law principles upon the subject of remainders, which are admirably 
 set forth in this chapter, still form the basis of the law upon this subject, but have been 
 to a considerable extent modified by modern statutes. The statute-books of each State 
 should therefore be consulted in this connection. (See Washburn on Real Prop. II. 
 641-645, 5th ed.; 6 Wall. 458; 79 Me. 381 ; 143 Mass. 237, 389; 103 N. Y. 453.) 
 
346 OF ESTATES IN POSSESSION, _ 
 
 no more than equal, to the whole. And hence also it is easy tc 
 collect, that no remainder can be limited after the grant of 
 an estate in fee-simple : because a fee-simple is the highest and 
 largest estate that a subject is capable of enjoying ; and he that 
 is tenant in fee hath in him the whole of the estate : a remainder 
 therefore, which is only a portion, or residuary part, of the estate, 
 cannot be reserved after the whole is disposed of. A particular 
 *i65] estate, with all *the remainders expectant thereon, is only 
 one fee-simple : as 40/. is part of 100/. and 60/. is the remainder 
 of it : wherefore, after a fee-simple once vested, there can no more 
 be a remainder limited thereon, than, after the whole 100/. is 
 appropriated, there can be any residue subsisting. 
 
 Thus much being premised, we shall be better enabled to com 
 prehend the rules that are laid down by law to be observed in the 
 creation of remainders, and the reasons upon which those rules 
 are founded. 
 
 I. And, first, there must necessarily be some particular 
 estate precedent to the estate in remainder. As, an estate for 
 years to A, remainder to B for life ; or, an estate for life to A, 
 remainder to B in tail. This precedent estate is called the par- 
 ticular estate, as being only a small part or particula, of the inherit- 
 ance ; the residue or remainder of which is granted over to 
 another. The necessity of creating this preceding particular 
 estate, in order to make a good remainder, arises from this plain 
 reason ; that remainder is a relative expression, and implies that 
 some part of the thing is previously disposed of : for where the 
 whole is conveyed at once, there cannot possibly exist a remain- 
 der ; but the interest granted, whatever it be, will be an estate in 
 possession. 
 
 An estate created to commence at a distant period of time, 
 without any intervening estate, is therefore properly no remain, 
 der ; it is the whole of the gift, and not a residuary part. And 
 such future estates can only be made of chattel interests, which 
 were considered in the light of mere contracts by the ancient law, 
 to be executed either now or hereafter, as the contracting parties 
 should agree ; but an estate of freehold must be created to com- 
 mence immediately. For it is an ancient rule of the common law, 
 that an estate of freehold cannot be created to commence in fit- 
 turo ; but it ought to take effect presently either m possession 
 •166] or remainder ; because at *common law no freehold in lands 
 
REMAINDER, AND REVERSION. 34; 
 
 coidd pass without livery of seizin ; which must operate eithei 
 immediately, or not at all. ' It would therefore be contradictory, 
 if an estate, which is not to commence 'till hereafter, could be 
 granted by a conveyance which imports an immediate possession. 
 Therefore, though a lease to A for seven years, to commence 
 from next Michaelmas, is good ; yet a conveyance to B of lands, 
 to hold to him and his heirs for ever from the end of three years 
 next ensuing, is void. So that when it is intended to grant an 
 estate of freehold, whereof the enjoyment shall be deferred till 
 a future time, it is necessary to create a previous particular 
 estate, which may subsist till that period of time is completed ; 
 and for the grantor to deliver immediate possession of the land 
 to the tenant cf this particular estate, which is construed to be 
 giving possession to him in remainder, since his estate and that 
 of the particular tenant are one and the same estate in law. As. 
 where one leases to A for three years, with remainder to B in 
 fee, and makes livery of seizin to A ; hereby the livery of the free- 
 hold is immediately created, and vested in B, during the continu- 
 ance of A's term of years. The whole estate passes at once 
 from the grantor to the grantees and the remainder-man is 
 seized of his remainder at the same time that the termor is 
 possessed of his term. The enjoyment of it must indeed be de- 
 ferred till hereafter ; but it is to all intents and purposes an 
 estate commencing in prcesenti, though to be occupied and en- 
 joyed \nfuturo. 
 
 As no remainder can be created without such a precedent 
 particular estate, therefore the particular estate is said to support 
 the remainder. But a lease at will is not held to be such a par- 
 ticular estate as will support a remainder over. For an estate 
 at will is of a nature so slender and precarious, that it is not 
 looked upon as a portion of the inheritance ; and a portion must 
 first be taken out of it, in order to constitute a remainder. Be- 
 sides, if it be a freehold remainder, livery of seizin must be given 
 at the time of its creation ; and the entry of the grantor to do 
 this determines the estate at will *in the very instant in [*167 
 which it is made : or if the remainder be a chattel interest, 
 though perhaps the deed of creation might operate as a future 
 contract, if the tenant for years be a party to it, yet it is void by 
 way of remainder: for it is a separate independent contract, 
 distinct from the precedent estate at will ; and every remainder 
 
348 OF EST A TES IN POSSESSION, 
 
 must be part of one and the same estate, out of which the pre' 
 ceding particular estate^^ is taken. And hence it is generally 
 true, that if the particular estate is void in its creation, or by 
 any means is defeated afterwards, the remainder supported 
 thereby shall be defeated also : as where the particular estate 
 is an estate for the life of the person not in esse ; or an estate for 
 life upon condition, on breach of which condition the grantor 
 enters and avoids the estate ; in either of these cases the remain- 
 der over is void. 
 
 2. A second rule to be observed is this : that the remainder 
 must commence or pass out of the grantor at the time of the 
 creation of the particular estate. As, where there is an estate 
 to A for life, with remainder to B in fee : here B's remainder in 
 fee passes from the grantor at the same time that seizin is deliv- 
 ered to A of his life estate in possession. And it is this which 
 induces the necessity at common law of livery of seizin being 
 made on the particular estate, whenever a freehold remain- 
 der is created. For, if it be limited even on an estate for years, 
 it is necessary that the lessee for years should have livery of 
 seizin, in order to convey the freehold from and out of the grant- 
 or, otherwise the remainder is void. Not that the livery is ne- 
 cessary to strengthen the estate for years ; but, as livery of the 
 land is requisite to convey the freehold, and yet cannot be given 
 to him in remainder without infringing the possession of the 
 lessee for years, therefore the law allows such livery, made to 
 the tenant of the particular estate, to relate and enure to him in 
 remainder, as both are but one estate in law. 
 *168] *3. A third rule respecting remainders is this : that the 
 remainder must vest in the grantee during the continuance of 
 the particular estate, or eo instanti that it determines. As, if A 
 be tenant for life, remainder to B in tail : here B's remainder is 
 vested in him, at the creation of the particular estate to A for 
 life : or if A and B be tenants for their joint lives, remainder to 
 the survivor in fee ; here, though during their joint lives, the 
 remainder is vested in neither, yet on the death of either of them, 
 the remainder vests instantly in the survivor ; wherefore both 
 these are good remainders. But, if an estate be limited to A 
 for life, remainder to the eldest son of B in tail, and A dies be- 
 fore B hath any son ; here the remainder will be void, for it did 
 not vest in any one during the continuance, nor at the determin- 
 
REMAINDER, AND REVERSION. 349 
 
 ation, of the particular estate : and even supposing that B should 
 afterwards have a son, he shall not take by this remainder ; for, 
 as it did not vest at or before the end of the particular estate, it 
 never can vest at all, but is gone for ever. And this depends 
 upon the principle before laid down, that the precedent particu- 
 lar estate, and the remainder, are one estate in law ; they must 
 therefore subsist and be in esse at one and the same instant of 
 time, either during the continuance of the first estate, or at the 
 very instant when that determines, so that no other estate can 
 possibly come between them. For there can be no intervening 
 estate between the particular estate, and the remainder supported 
 thereby : the thing supported must fall to the ground, if once its 
 support be severed from it.f ■ 
 
 It is upon these rules, but principally the last, that the doc- 
 trine of contingent remainders depends. For remainders are 
 either vested or contingent- Vested remainders (or remainders 
 executed, whereby a present interest passes to the party, though 
 to be enjoyed inftituro) are where the estate is invariably fixed, 
 to remain to a determinate person, after the *particular es- [*169 
 tate is spent. As if A be tenant for twenty years, remainder to 
 B in fee ; here B's is a vested remainder, which nothing can de- 
 feat, or set aside. 
 
 Contingent or executory remainders (whereby no present in- 
 terest passes) are where the estate in remainder is limited to take 
 effect, either to a dubious and uncertain person, or upon a du- 
 bious and uncertain event ; so that the particular estate may 
 chance to be determined, and the remainder never take effect. 
 
 First, they may be limited to a dubious and uncertain /^wo«. 
 As if A be tenant for life, with remainder to B's eldest son (then 
 unborn) in tail ; this is a contingent remainder, for it is uncer- 
 tain whether B will have a son 'or no : but the instant that a son 
 is born, the remainder is no longer contingent, but vested. 
 Though, if A had died before the contingency happened, that is, 
 before B's son was born, the remainder would have been abso- 
 lutely gone ; for the particular estate was determined before the 
 remainder could vest. Nay, by the strict rule of law, if A were 
 tenant for life, remainder to his own eldest son in tail, and A died 
 without issue born, but leaving his wife enceinte, or big with child, 
 and after his death a posthumous son was born, this son could 
 not take the land by virtue of this remainder ; for the particular 
 
 cntnrv'n' *■? England, the remainder may now be good as a springing or shifting use or an cxe- 
 «"K>ry aevise. (40 & 41 Vict. c. 33.) A similar rule prevails in some of the United States. 
 
3SO OF ESTATES TN POSSESSION, 
 
 estate determined before there was any person in esse, in whom 
 the remainder could vest. But, to remedy this hardship, .it is 
 enacted by statute lo & 1 1 Wm. III., ch. i6, that posthumous chil- 
 dren shall be capable of taking in remainder, in the same man- 
 ner as if they had been born in their father's lifetime : that is, 
 the remainder is allowed to vest in them, while yet in their 
 mother's womb. 
 
 This species of contingent remainders to a person not in be- 
 ing, must however be limited to some one, that may, by common 
 possibility, or potentia propinqua, be in esse at or before the 
 *170] particular estate determines. As if an estate be * made 
 to A for life, remainder to the heirs of B ; now, if A dies before 
 B, the remainder is at an end ; for during B's life he has no heir, 
 nemo esthaeres viventis: but if B dies first, the remainder then im- 
 mediately vests in his heir, who will be entitled to the land on 
 the death of A. This is a good contingent remainder, for the 
 possibility of B's dying before A is potentia propinqua^ and there- 
 fore allowed in law. But a remainder to the right heirs of B (if 
 there be no such person as B in esse) is void. For here there 
 must two contingencies happen : first, that such a person as B 
 shall be born ; and, secondly, that he shall also die during the 
 continuance of the particular estate ; which makes it potentia 
 remotissima, a most improbable possibility. A remainder to a 
 man's eldest son, who hath none (we have seen) is good, for by 
 common possibility he may have one ; but if it be limited in par- 
 ticular to his son John, or Richard, it is bad, if he have no son 
 of that name ; for it is too remote a possibility that he should 
 not only have a son, but a son of a particular name.f A limita- 
 tion of a remainder to a bastard before it is born, is not good : 
 for though the law allows the possibility of having bastards, it 
 presumes it to be a very remote and improbable contingency. 
 Thus may a remainder be contingent, on account of the uncer- 
 tainty of the person who is to take it." 
 A remainder may also be contingent, where the person to 
 
 t This would now be deemed a good remainder. (Washburn on Real Prop. II. 630, 5th ed.) 
 
 2 [This rule with respect to illegitimate children is not founded on any notion of 
 the improbability of the event of such children being born, but rather on the policy 
 of the law, and the maxim that a bastard cannot with certainty be ascertained to be 
 the issue of a particular man, and can only take, as such, under a gift made after he 
 has become known by reputation as the child of that man.] 
 
REMAINDER, AND RE VER SI ON. 35 1 
 
 whom it is Kmited is fixed and certain, but the event u^ion which 
 it is to take effect is vague and uncertain. As, where land is 
 given to A for life, and in case B survives him, then with re- 
 mainder to B in fee : here B is a certain person, but the re- 
 mainder to him is a contingent remainder, depending upon a 
 dubious event, the uncertainty of his surviving A. During the 
 joint lives of A and B it is contingent; and if B dies first, it 
 never can vest in his heirs, but is forever gone ; but if A dies 
 first, the remainder to B becomes vested. 
 
 •Contingent remainders of either kind, if they amount [*171 
 to a freehold, cannot be limited on an estate iov years, or any 
 other particular estate, less than a freehold. Thus if land be 
 granted to A for ten years, with remainder in fee to the right 
 heirs of B, this remainder is void ; but if granted to A for life, 
 with a like remainder, it is good. For, unless the freehold passes 
 out of the grantor at the time the remainder is created, such 
 freehold remainder is void : it cannot pass out of him without 
 vesting somewhere ; and in the case of a contingent remainder 
 it must vest in the particular tenant, else it can vest no where ; 
 unless, therefore, the estate of such particular tenant be of a 
 freehold nature, the freehold cannot vest in him, and conse- 
 quently the remainder is void. 
 
 Contingent remainders may be defeated, by destroying or de- 
 termining the particular estate upon which they depend, before 
 the contingency happens whereby they become vested. There- 
 fore when there is tenant for life, with divers remainders in con- 
 tingency, he may, not only by his death, but by alienation, sur- 
 render, or other methods, destroy and determine his own life- 
 estate before any of those remainders vest : the consequence of 
 which is, that he utterly defeats them all. As, if there be tenant 
 for life, with remainder to his eldest son unborn in tail, and the 
 tenant for life, before any son is born, surrenders his life-estate, 
 he by that means defeats the remainder in tail to his son ; for 
 his son not being in esse, when the particular estate determined, 
 the remainder could not then vest ; and, as it could not vest 
 then, by the rules before laid down, it never can vest at all. In 
 these cases therefore it is necessary to have trustees appointed to 
 preserve the contingent remainders ; in whom there is vested an 
 estate in remainder for the life of the tenant for life, to commence 
 when his estate determines. If therefore his estate for life de- 
 
3S2 OF ESTATES IN POSSESSION, 
 
 termines otherwise than by his death, the estate of the trustees, 
 for the residue of his natural life, will then take effect, and be- 
 *172] come a *particu]ar estate in possession, sufficient to sup- 
 port the remainders depending in contingency. This method is 
 said to have been invented by Sir Orlando Bridgman, Sir Geof- 
 frey Palmer, and other eminen. counsel, who betook themselves 
 to conveyancing during the time of the civil wars ; in order 
 thereby to secure in family settlements a provision for the future 
 children of an intended marriage, who before were usually left at 
 the mercy of the particular tenant foi life ; and when, after the Res- 
 toration, these gentlemen came to fill the first offices of the law, 
 they supported this invention within reasonable and proper 
 bounds, and introduced it into general use. 
 
 Thus the student will observe how much nicety is required 
 in creating and securing a remainder; and I trust he will in 
 some measure see the general reasons upon which this nicety is 
 founded. It were endless to attempt to enter upon the particu- 
 lar subtleties and refinements, into which this doctrine, by the 
 variety of cases which have occurred in the course of many cen- 
 turies, has been spun out and subdivided : neither are they con- 
 sonant to the design of these elementary disquisitions. I must 
 not however omit, that in devises by last will and testament 
 (which being often- drawn up when the party is inops consilii, 
 are always more favored in construction than formal deeds, which 
 are presumed to be made with great caution, forethought, and 
 advice), in these devises, I say, remainders may be created in 
 some measure contrary to the rules before laid down : though our 
 lawyers will not allow such dispositions to be strictly remainders ; 
 but call them by another name, that of executory devises, or de- 
 vises hereafter to be executed. 
 
 An executory devise of lands is such a disposition of them 
 by will, that thereby no estate vests at the death of the devisor, 
 but only on some future contingency. It differs from a remain- 
 der in three very material points ; i. That it needs not any 
 *173] *particular estate to support it. 2. That by it a fee-simple, 
 or other less estate, may be limited after a fee-simple. 3. That 
 by this means a remainder may be limited of a chattel interest, 
 after a particular estate for life created in the same. 
 
 I The first case happens when a man devises a future estate 
 to arise upon a contingency ; and, till that contingency happens, 
 
REMAINDER, AND REVERSION. 353 
 
 does not dispose of the fee-simple, but leaves it to descend to 
 his heirs at law. As if one devises land to a feme-sole and her 
 heirs, upon her day of marriage : here is in effect a contingent 
 remainder, without any particular estate to support it ; a free- 
 hold commencing in future. This limitation, though it would 
 be void in a deed, yet is good in a will, by way of executory 
 devise. For, since by a devise a freehold may pass without 
 corporeal tradition or livery of seizin (as it must do if it passes 
 at all), therefore it may commence in futuro ; because the prin- 
 cipal reason why it cannot commence in futuro in other cases, 
 is the necessity of actual seizin, which always operates in prcesenti. 
 And, since it may thus commence in futuro, there is no need of 
 a particular estate to support it ; the only use of which is to 
 make the remainder, by its unity with the particular estate, a 
 present interest. And hence also it follows, that such an execu- 
 tory devise, not being a present interest, cannot be barred by a 
 recovery, suffered before it commences. 
 
 2. By executory devise, a fee, or other less estate, may be 
 limited after a fee. And this happens where a devisor devises 
 his whole estate in fee, but limits a remainder thereon to com- 
 mence on a future contingency. As if a man devises land to A 
 and his heirs ; but if he dies before the age of twenty-one, then 
 to B and his heirs ; this remainder, though void in deed, is good 
 by way of executory devise. But, in both these species of 
 executory devises, the contingencies ought to be such as may 
 happen within a reasonable time ; as within one or more life or 
 lives in being, or within a *moderate term of years, for [*174 
 courts of justice will not indulge even wills, so as to create a 
 perpetuity, which the law abhors : because by perpetuities (or 
 the settlement of an interest, which shall go in the succession 
 prescribed, without any power of alienation), estates are made 
 incapable of answering those ends of social commerce, and 
 providing for the sudden contingencies of private life, for which 
 property was at first established. The utmost length that has 
 been hitherto allowed for the contingency of an executory devise 
 of either kind to happen in, is that of a life or lives in being, 
 and one and twenty years afterwards. As when lands are de- 
 vised to such unborn son of a feme-covert, as shall first attain 
 the age of twenty-one, and his heirs, the utmost length of time 
 that can happen before the estate can vest, is the life of the 
 23 
 
354 OF ESTA TES IN POSSESSION, 
 
 mother and the subsequent infancy of her son : and this hath 
 been decreed to be a good executory devise. 
 
 3. By executory devise a term of years may be given to one 
 man for his life, and afterwards limited over in remainder to 
 another, which could not be done by deed ; for by law the first 
 grant of it, to a man for life, was a total disposition of the whole 
 term ; a life estate being esteemed of a higher and larger nature 
 than any term of years. And, at first, the courts were tender, 
 even in the case of a will, of restraining the devisee for life from 
 aliening the term ; but only held, that in case he died without 
 exerting that act of ownership, the remainder over should then 
 take place : for the restraint of the power of alienation, especially 
 in very long terms, was introducing a species of perpetuity. 
 But, soon afterwards, it was held, that the devisee for life hath 
 no power of aliening the term, so as to bar the remainder-man : 
 yet, in order to prevent the danger of perpetuities, it was settled 
 that though such remainders may be limited to as many persons 
 successively as the devisor thinks proper, yet they must all be 
 *175] *in esse during the life of the first devisee ; for then all the 
 candles are lighted and are consuming together, and the ultimate 
 remainder is in reality only to that remainder-man who happens 
 to survive the rest : and it was also settled, that such remainder 
 may not be limited to take effect, unless upon such contingency 
 as must happen (if at all) during the life of the first devisee. ° 
 
 8 A noted case, illustrative of the doctrine of perpetuities, was that of Peter 
 Thelusson, who "devised the bulk of an immense property to trustees for the 
 purpose of accumulation during the lives of three sons, and of all their sons who 
 should be living at the time of his death, or be born in due time afterwards, and 
 during the life of the survivor of them. Upon the death of this last, the 
 fund was directed to be divided into three shares, one to go to the eldest 
 male lineal descendant of each of his three sons ; upon the failure of sucli a 
 descendant, the share to go to the descendants of the other sons ; and, upon 
 the failure of all such descendants, the whole to go to the sinking fund. 
 When he died he had three sons living, who had four sons living, and two 
 twin sons were born soon after. Upon calculation it appeared that, upon 
 the death of the survivor of these nine, the fund would probably exceed 
 nmeteen millions ; and upon the supposition of only one person to take, 
 and a minority of ten years, that it would exceed thirty-two millions. It is 
 evident that this extraordinary rule was strictly within the limits laid down 
 in the text, and it was accordingly sustained. But this occasioned the pas- 
 sage of a statute (39 & 4c Geo. III., ch. 98) prohibiting any settlements <A 
 property for accumulation for any longer term than the life of the settlefj 
 
REMAINDER, AND REVERSION. 355 
 
 Thus much for such estates in expectancy as are created by the 
 express words of the parties themselves ; the most intricate title 
 in the law. There is yet another species, which is created by the act 
 and operation of the law itself, and this is called a reversion. 
 
 III. An estate in reversion is the residue of an estate left in 
 the grantor, to commence in possession after the determination 
 of some particular estate granted out by him. Sir Edward Coke 
 describes a reversion to be the returning of land to the grantor 
 or his heirs after the grant is over. As, if there be a gift in tail, 
 the reversion of the fee is, without any special reservation, vested 
 in the donor by act of law : and so also the reversion, after an 
 estate for life, years, or at will, continues in the lessor. For the 
 fee-simple of all lands must abide somewhere ; and if he, who was 
 before possessed of the whole, carves out of it any smaller estate 
 and grants it away, whatever is not so granted remains in him, 
 A reversion is never, therefore, created by deed or writing, but 
 arises from construction of law ; a remainder can never be 
 limited, unless by either deed or devise. But both are equally 
 transferable, when actually vested, being both estates in prcesenti, 
 though taking effect in future. 
 
 The doctrine of reversions is plainly derived from the feudal 
 constitution. For when a feud was granted to a man for life; 
 or to him and his issue male,rendering either rent of other services ; 
 then, on his death or the failure of issue male, the feud was 
 determined, and resulted back to the *lord or proprietor, [*176 
 to be again disposed of at his pleasure. And hence the usual 
 incidents to reversions are said to be fealty and rent. When 
 no rent is reserved on the particular estate, fealty however 
 
 the period of 21 years from his deatli, the minority of any person or persons 
 living, or en ventre sa mire at the time of his death, or the minority of any 
 persons who would be beneficially entitled to the profits under the settlt- 
 ment, if of full age." 
 
 In the various States of this country, there are also statutes against per- 
 petuities, or the common-law rule has been adopted upon the subject. The 
 common-law prohibited the suspension of the power of alienation of real 
 property for a longer ueriod than any number of lives in being, and twenty- 
 one years and the ordinary period of gestation thereafter. In New York, 
 there can be no suspension for a longer period than two lives in being, and 
 sometimes a minority in addition. The persons whose lives are taken as the 
 msasure of duration should be mentioned, or definitely referred to in the 
 grant or instrument of conveyance. (Manice v. Manice, 43 N. Y. 303 ; see 
 naU. S. 340; 112N. Y. 167&299.) 
 
356 OF ESTA TES IN POSSESSION, 
 
 results ot course, as an incident quite Inseparable, and may be. 
 demanded as a badge of tenure, or acknowledgment of supe- 
 riority ; being frequently the only evidence that the lands are 
 holden at all. Where rent is reserved, it is also incident, though 
 not inseparably so, to the reversion. The rent may be granted 
 away, reserving the reversion ; and the reversion may be granted 
 away, reserving the rent ; by special words : but by a general 
 grant of the reversion the rent will pass with it, as incident 
 thereunto ; though by the grant of the rent generally, the reversion 
 will not pass. The incident passes by the grant of the principal, 
 but not e converse : for the maxim of law is " accessorium non 
 duett, sed sequitur, suum principale. " 
 
 These incidental rights of the reversioner, and the respective 
 modes of descent, in which remainders very frequently differ from 
 reversions, have occasioned the law to be careful in distinguish- 
 ing the one from the other, however inaccurately the parties 
 themselves may describe them. For if one seized of a paternal 
 estate in fee, makes a lease for life, with remainder to him- 
 self and his heirs, this is properly a mere reversion to which 
 rent and fealty shall be incident ; and which shall only descend 
 to the heirs of his father's blood, and not to his heirs general, 
 as a remainder limited to him by a third person would have 
 done : for it is the old estate, which was originally in him, and 
 never yet was out of him. And so likewise, if a man grants a 
 lease for life to A, reserving rent, with reversion to B and his 
 heirs, B hath a remainder descendible to his heirs general, and 
 not a reversion to which the rent is incident ; but the grantor 
 shall be entitled to the rent, during the continuance of A's estate. 
 *177] *In order to assist such persons as have any estate 
 in remainder, reversion, or expectancy, after the death of 
 others, against fraudulent concealments of their death, it is 
 enacted by the statute 6 Ann., c. i8 that all persons on whose 
 lives any lands or tenements are holden, shall (upon application 
 to the court of chancery, and order made thereupon), once in 
 every year, if required, be produced to the court, or its commis- 
 sioners ; or upon neglect or refusal, they shall be taken to be actually 
 dead, and the person entitled to such expectant estate may enter 
 upon and ho!d the lands and tenements, till the party shall 
 appear to be living. 
 
 Before we conclude the doctrine of remainders and raver 
 
REMAINDER, AND REVERSION. 357 
 
 sions, it may be proper to observe, that whenever a greater es- 
 tate and a less coincide and meet in one and the same person, 
 without any intermediate estate, the less is immediately annihi- 
 lated ; or, in the law phrase, is said to be merged, that is, sunk or 
 drowned in the greater. Thus, if there be tenant for years, and 
 the reversion in fee-simple descends to or is purchased by him, 
 the term of years is merged in the inheritance, and shall never 
 exist any more. But they must come to one and the same person 
 in one and the same right ; else, if the freehold be in his own 
 right, and he has a term in right of another (en auter droit), 
 there is no merger. Therefore, if tenant for years dies, and 
 makes him who has the reversion in fee his executor, whereby 
 the term of years vests also in him, the term shall not merge ; 
 for he has the fee in his own right, and the term of years in the 
 right of the testator, and subject to his debts and legacies. So 
 also, if he who has the reversion in fee marries the tenant for 
 years, there is no merger ; for he has the inheritance in his own 
 right, the lease in the right of his wife. An estate-tail is an ex- 
 ception to this rule : for a man may have in his own right both 
 an estate-tail and a reversion in fee : and the estate-tail, though a 
 less estate, shall not merge in the fee. For estates-tail are pro- 
 tected and preserved from merger by the *operatio!i and [*178 
 construction, though not by the expiress words, of the statute de 
 donis : which operation and construction have probably arisen 
 upon this consideration : that, in the common cases of mer- 
 ger of estates for life or years by uniting with the inheritance, 
 the particular tenant has the sole interest in them, and has 
 full power at any time to defeat, destroy or surrender them to 
 him that has the reversion ; therefore when such an estate 
 unites with the reversion in fee, the law considers it in the light of 
 a virtual surrender of the inferior estate. But, in an estate-tail, 
 the case is otherwise : the tenant for a long time had no power 
 at ?lll over it, so as to bar or destroy it, and now can only do it 
 by certain special modes, by a fine, a recovery, and the like : it 
 would therefore have been strangely improvident to have per- 
 mitted the tenant in tail, by purchasing the reversion in fee, to 
 merge his particular estate, and defeat the inheritance of his 
 issue ; and hence it has become a maxim, that a tenancy in tail, 
 which cannot be surrendered, cannot also be merged in the fee 
 
358 OF EST A TES IN SE VERAL TY, 
 
 CHAPTER XII. 
 
 [bL. COMM. — BOOK II. CH. XII.] 
 
 0/ Estates in Severalty, Joint-tenancy, Coparcenary, and Common 
 
 We come now to treat of estates, with respect to the num- 
 ber and connections of their owners, the tenants who occupy and 
 hold them. And, considered in this view, estates of any quantity 
 or length of duration, and whether they be in actual possession 
 or expectancy, may be held in four different ways ; in severalty, 
 in joint-tenancy, in coparcenary, and in common. 
 
 I. He that holds lands or tenements in severalty, or is sole 
 tenant thereof,is he that holds them in his own right only, with- 
 out any other person being joined or connected with him in point 
 of interest, during his estate therein. This is the most common 
 and usual way of holding an estate ; and therefore we may make 
 the same observations here, that we did upon estates in posses- 
 sion, as contradistinguished from those in expectancy, in the 
 preceding chapter : that there is little or nothing peculiar to be 
 remarked concerning it, since all estates are supposed to be of 
 this sort, unless where they are expressly declared to be otherwise ; 
 and that in laying down general rules and doctrines, we usually 
 apply them to such estates as are held in severalty. I shall there- 
 fore proceed to consider the other three species of estates, in 
 which there are dl^ays a. plurality of tenants. 
 *180] *II. An estate in joint-tenancy is where lands or tene- 
 nents are granted to two or more persons, to hold in fee-siml)le, 
 foe-tail, for life, for years, or at will. In consequence of such 
 grants an estate is called an estate in joint-tenancy, and some- 
 times an estate in jointure, which word as well as the other 
 signifies an union or conjunction of interest ; though in common 
 speech the term jointure is now usually confined to that joint- 
 estate, which by virtue of the statute 27 Hen. VIII. ch. 10, is 
 
JOINT-TENANCY, COPARCENAR Y, E TC. 359 
 
 frequently vested in the husband and wife before marriage, as a 
 full satisfaction and bar of the woman's dower.^ 
 
 In unfolding this title, and the two remaining ones, in the 
 present chapter, we will first inquire how these estates may be 
 created ; next, their properties and respective incidents ; and 
 lastly, how they may be severed or destroyed. 
 
 i. The creation of an estate in joint-tenancy depends on the 
 wording of the deed or devise, by which the tenants claim title : 
 for this estate can only arise by purchase or grant, that is, by the 
 act of the parties, and never by the mere act of law. Now, if an 
 estate be given to a plurality of persons, without adding any 
 restrictive, exclusive, 'or explanatory words, as if an estate be 
 granted to A and B and their heirs, this makes them immediately 
 joint-tenants in fee of the lands. For the law interprets the 
 grant so as to make all parts of it take effect, which can only be 
 done by creating an equal estate in them both. As therefore 
 the grantor has thus united their names, the law gives them a 
 thorough union in all other respects. For, 
 
 2. The properties of a joint estate are derived from its unity, 
 which is fourfold ; the unity of interest, the unity of title, the 
 unity of time, and the unity of possession ; or, in other words, 
 joint-tenants have one and the same interest, accruing by one 
 and the same conveyance, commencing at one and the same time,, 
 and held by one and the same undivided possession. 
 
 * First, they must have one and the same interest. One [*i8J 
 joint-tenant cannot be entitled to one period of duration or quan- 
 tity of interest in lands, and the other to a different ; one cannot 
 be tenant for life, and the other for years ; one cannot be tenant 
 in fee, and the other in tail. But if land be limited to A and B 
 for their lives, this makes them joint-tenants of the freehold ; if 
 to A and B and their heirs, it makes them joint-tenants of the 
 
 • Joint-tenancy was favored in the early common law, by reason of certain 
 advantages growing out of this mode of tenure when the feudal system was in 
 force ; but at the present day, the tendency of legislation in this country is 
 to abolish it, and convert limitations of estates to two or more persons into 
 tenancies in common, unless the grantees are joint-executors or joint-trus- 
 tees, or unless it is expressly declared by the deed that the estate shall be • 
 held in joint-tenancy. This change has been made because the doctrine of 
 survivorship, incident to such estates, is regarded as unreasonable and 
 burdensome. ' 
 
36o OF ESTA TES IN SE VERAL TV, 
 
 inheritance. If land be granted to A and B for their lives, and 
 to the heirs of A ; here A and B are joint-tenants of the freehold 
 during their respective lives, and A has the remainder of the 
 fee in severalty ; or if land be given to A and B, and the heirs ot 
 the body of A ; here both have a joint estate for life, and A 
 hath a several remainder in tail. Secondly, joint-tenants must also 
 have a unity of title ; their estate must be created by one and 
 the same act, whether legal or illegal ; as by one and the same 
 grant, or by one and the same disseizin. Joint-tenancy cannot 
 arise by descent or act of law ; but merely by purchase or 
 acquisition by the act of the party : and, unless that act be one 
 and the same, the two tenants would have different titles ; and if 
 they had different titles, one might prove good and the other bad, 
 which would absolutely destroy the jointure. Thirdly, there 
 must also be a unity of time ; their estates must be vested at 
 one and the same period as well as by one and the same title. 
 As in case of a present estate made to A and B ; or a remainder 
 in fee to A and B after a particular estate ; in either case A and 
 B are joint-tenants of this present estate, or this vested remainder. 
 But if, after a lease for life, the remainder be limited to the heirs 
 of A and B ; and during the continuance of the particular estate 
 A dies, which vests the remainder of one moiety in his heir : and 
 then B dies, whereby the other moiety becomes vested in the 
 heir of B : now A's heir and B's heir are not joint-tenants of 
 this remainder, but tenants in common ; for one moiety vested 
 •182] at one time, and the other moiety vested at another. *Yet 
 where a feoffment was made to the use of a man, and such wife 
 as he should afterwards marry, for term of their lives, and h© 
 afterwards married ; in this case it seems to have' been held 
 that the husband and wife had a joint-estate, though vested 
 at different times ; because the tise of the wife's estate was in 
 abeyance and dormant till the intermarriage ; and, being then 
 awakened, had relation back, and took effect from the original 
 time of creation. Lastly, in joint-tenancy there must be a 
 unity of possession. Joint-tenants are said to be seized /^r»2y ei 
 per tout, by the half or moiety, and by all: that is, they each of 
 them have the entire possession, as well of every parcel as of the 
 whole. They have not, one of them a seizin of one half or moiety, 
 and the of-er of the other moiety ; neither can one be exclu- 
 
JOINT-TENANCY, COPARCENARY, ETC. 361 
 
 fively seized of one acre, and his companion of another ; but each 
 has an undivided moiety of the whole, and not the whole of an 
 undivided moiety. And therefore, if an estate in fee be given to 
 a man and his wife, they are neither properly joint-tenants, nor 
 tenants in common, for husband and wife being considered as one 
 person in law, they cannot take the estate by moieties, but both 
 are seized of the entirety, per tout, et non per my : the conse- 
 quence of which is, that neither the husband nor the wife can 
 dispose of any part without the assent of the other, but the whole 
 must remain to the survivor.f 
 
 Upon these principles, of a thorough and intimate union of 
 interest and possession, depend many other consequences and 
 incidents to the joint-tenant's estate. If two joint-tenants let a 
 verbal lease of their land, reserving rent to be paid to one of them, 
 it shall enure to both, in respect of the joint-reversion. If their 
 lessee surrenders his lease to one of them, it shall also enure to 
 both, because of the privity, or relation of their estate. On the 
 same reason, livery of seizin, made to one joint-tenant, shall enure 
 to both of them : and the entry, or re-entry, of one joint-tenant 
 is as effectual in law as if it were the act of both. In all actions 
 also relating to their joint-estate, one joint-tenant cannot sue or be 
 sued without joining the other. * * * * Upon the same ground it 
 is held, that one joint-tenant cannot have an action against another 
 for trespass, in respect of his land ; for each has an equal right to 
 enter on any part of it. But one joint-tenant is not capable by him- 
 self to do any act, which may tend to defeat or injure the estate of 
 the other ; as to let leases, or to grant copyholds : and if any waste 
 be done, which tends to the destruction of the ' inheritance, one 
 joint-tenant may have an action of waste against the other; 
 by construction of the statute Westm. 2. ch. 22. So, too, 
 though at common law no action of account lay for one joint- 
 tenant against another, unless he had constituted him his bailiff 
 or receiver, yet now by the statute, 4 Ann. ch. 16, joint-tenants 
 may have actions of account against each other, for receiving 
 raore than their due share of the profits of the tenements held 
 in joint-tenancy.^ 
 
 From the same principle also arises the remaining grand 
 incident of joint-estates ; viz., the doctrine of survivorship ; by 
 
 t As to estates by the entirety, see loo N. Y. 12; 117 Pa. St. 213. But husband and wife may 
 also be tenants in common. (128 U. S. 464.) 
 
 ' The action of account is now obsolete. 
 
j62 OF ESTA TES IN SE VERA LTY, 
 
 which when two or more persons are seized of a joint estate, oi 
 inheritance, for their own lives, or fur auter vie, or are jointly 
 possessed of any chattel-interest, the entire tenancy, upon the 
 decease of any of them, remains to the survivors, and at length 
 to the last survivor ; and he shall be entitled to the whole estate, 
 whatever it be, whether an inheritance or a common freehold 
 only, or even a less estate. This is the natural and regular 
 consequence of the union and entirety of their interest. The 
 *184] interest of two joint-tenants, *is not only equal or similar, 
 but also is one and the same. One has not originally a distinct 
 moiety from the other ; but, if by any subsequent act (as by 
 alienation or forfeiture of either) the interest becomes separate 
 and distinct, the joint-tenancy instantly ceases. But, while it 
 continues, each of two joint-tenants has a concurrent interest in 
 the whole ; and therefore, on the death of his companion, the 
 sole interest in the whole remains to the survivor. For the 
 interest which the survivor originally had is clearly not divested 
 by the death of his companion ; and no other person can now 
 claim to have & joint estate with him, for no one can now have 
 an interest in the whole, accruing by the same title, and taking 
 effect at the same time with his own ; neither can any one claim 
 a separate interest in any part of the tenements ; for that would 
 be to deprive the survivor of the right which he has in all, and 
 every part. As therefore the survivor's original interest in the 
 whole still remains ; and as no one can now be admitted, either 
 jointly or severally, to any share with him therein ; it follows, 
 that his own interest must now be entire and several, and that 
 he shall alone be entitled to the whole estate (whatever it be) 
 that was created by the original grant. 
 
 This right of survivorship is called by our ancient authors 
 the jus accrescendi, because the right upon the death of one 
 joint-tenant accumulates and increases to the survivors ; or, as 
 they themselves express it, "pars ilia communis accrescit stiper- 
 stitibus, de persona in personam, usque ad ultim.am supetstitem." 
 And this jus accrescendi ought to be mutual ; which I apprehend 
 to be one reason why neither the king, nor any corporation, can 
 be a joint-tenant with a private person. For here is no 
 mutuality : the private person has not even the remotest chance 
 of being seized of the entirety, by benefit of survivorship ; foi 
 the king and the corporation can never die. 
 
JOINT-TENANCY, COPARCENAR Y, ETC. 363 
 
 • 3. We are, lastly, to inquire how an estate in joint- [*185 
 tenancy may be severed and destroyed. And this may be done 
 by destroying any of its constituent unities, i. That of time^ 
 which respects only the original commencement of the joint- 
 estate, cannot indeed (being now past) be affected by any sub- 
 sequent transactions. But, 2. The joint-tenants' estate may be 
 destroyed, without any alienation, by merely disuniting their 
 possession. For joint-tenants being seized per my et per tout, 
 everything that tends to narrow that interest, so that they shall 
 not be seized throughout the whole, and throughout every part, 
 is a severance or destruction of the jointure. And, therefore, if 
 two joint-tenants agree to part their lands, and hold them in 
 severalty, they are no longer joint-tenants : for they have now 
 no joint-interest in the whole, but only a several interest respect- 
 ively in the several parts. And for that reason also, the right 
 of survivorship is by such separation destroyed. By common 
 law all the joint-tenants might agree to make partition of the 
 lands, but one of them could not compel the other so to do : for 
 this being an estate originally created by the act and agreemeni 
 of the parties, the law would not permit any one or more ci 
 them to destroy the united possession without a similar universal 
 consent. But now by the statutes 31 Hen. VIII., ch. i, and 32 
 Hen. VIII., ch. 32, joint-tenants, either of inheritances or other 
 less estates, are compellable by writ of partition to divide their 
 lands." 3. The jointure may be destroyed by destroying the 
 unity of title. As if one joint-tenant alienes and conveys his 
 estate to a third person : here the joint-tenancy is severed, and 
 turned into tenancy in common ; for the grantee and the remain- 
 ing joint-tenant hold by different titles (one derived from the 
 original, the other from the subsequent, grantor), though, till 
 partition made, the unity of possession continues. But a devise 
 of one's share by will *is no severance of the jointure [*186 
 for no testament takes effect till after the death of the 
 testator, and by such death the right of the survivor (which 
 accrued at the original creation of the estate, and has therefore 
 
 ' These statutes have been superseded in England by later enactments, 
 prescribing particular methods of procedure to obtain partition. In the 
 various States of this country, also, statutes have been enacted, providing 
 tor the partition of estates held in joint-tenancy, or tenancy in common. 
 
364 OF ES TA TES IN SE VERAL TY, 
 
 a priority to the other, is alreadj' vested. 4. It may also be 
 destroyed by destroying the unity of interest. And therefore, if 
 there be two joint-tenants for life, and the inheritance is pur- 
 chased by or descends upon either, it is a severance of the 
 jointure ; though, if an estate is originally limited to two for life, 
 and after to the heirs of one of them, the freehold shall re- 
 main in jointure, without merging in the inheritance ; because, 
 being created by one and the same conveyance, they are not 
 separate estates (which is requisite in order to a merger), but 
 branches of one entire estate. In like manner, if a joint-tenant 
 in fee makes a lease for life of his share, this defeats the joint- 
 ure : for it destroys the unity both of title and of interest. And, 
 whenever or by whatever means the jointure ceases or is severed, 
 the right of survivorship, or Jus accrescendi, the same instant 
 ceases with it. Yet, if one of the three joint-tenants alienes his 
 share, the two remaining tenants still hold their parts by joint- 
 tenancy and survivorship : and if one of the three joint-tenants 
 release his share to one of his companions, though the joint- 
 tenancy is destroyed with regard to that part, yet the two 
 remaining parts are still held in jointure ; for they still preserve 
 their original constituent unities. But wlien, by any act or event, 
 different interests are created in the several parts of the estate, 
 or they are held by different titles, or if merely the possession 
 is separated ; so that the tenants have no longer these four 
 •ndispensable properties, a sameness of interest, and undivided 
 possession, a title vesting at one and the same time, and by 
 one and the same act or grant ; the jointure is instantly dis- 
 solved. 
 
 *187] * In general it is advantageous for the joint-tenants to 
 dissolve the jointure ; since thereby the right of survivorship is 
 taken away, and each may transmit his own part to his own 
 heirs. Sometimes, however, it is disadvantageous to dissolve the 
 joint-estate ; as if there be joint-tenants for life, and they make 
 partition, this dissolves the jointure, and, though before they 
 each of them had an estate in the whole for their own lives and 
 the life of their companion, now they have an estate in a moiety 
 only for their own lives merely ; and, on the death of either, 
 the reversioner shall enter on his moiety. And, therefore, if 
 there be two joint-tenants for life, and one grants away his part 
 
JOINT-TENANCY, COPARCENAR V, ETC. 365 
 
 for the life of his companion, it is a forfeiture : for, in the first 
 place, by the severance of the jointure he has given himself in 
 his own moiety only an estate for his own life ; and then he 
 grants the same land for the life of another ; which grant, by a 
 tenant for his own life merely, is a forfeiture of his estate ; for 
 it is creating an estate which may by possibility last longer than 
 that which he is legally entitled to. 
 
 III. An estate held in coparcenary is where lands of inherit- 
 ance descend from the ancestor to two or more persons.* It 
 arises either by common law or particular custom. By common 
 law : as where a person seized in fee-simple or in fee-tail dies, 
 and his next heirs are two or more females, his daughters, sisters, 
 aunts, cousins, or their representatives : in this case they shall 
 all inherit, as will be more fully shown when we treat of descents 
 hereafter ; and these co-heirs are then called coparceners ; or, for 
 brevity, parceners only. Parceners by particular custom art 
 where lands descend, as in gavelkind, to all the males in equal 
 degree, as sons, brothers, uncles, &c. And, in either of these 
 cases, all the parceners put together make but one heir, and 
 have but one estate among them. 
 
 *Th& properties of parceners are in some respects like [*188 
 those of joint-tenants ; they having the same unities of interest, 
 title, and possession. They may sue and be sued jointly for 
 matters relating to their own lands ; and the entry of one of 
 them shall in some cases enure as the entry of them all. 
 They cannot have an action of trespass against each other : but 
 herein they differ from joint-tenants, that they are also excluded 
 from maintaining an action of waste ; for coparceners could at 
 all times put a stop to any waste by writ of partition, but till 
 the statute of Henry the Eighth joint-tenants had no such 
 power. Parceners also differ materially from joint-tenants in 
 lour other points, i. They always claim by descent, whereas 
 joint-tenants always claim by purchase. Therefore, if two sis- 
 ters purchased lands, to hold to them and their heirs, they are 
 flot parceners, but joint-tenants ; and hence it likewise follows, 
 that no lands can be held in co-parcenary, but estates of inherit- 
 ance, which are of a descendible nature ; whereas not only 
 * Estates in coparcenary do not exist in the United States. In similai 
 casjs, the lands which descend are held by tenancy in common. 
 
366 OF ES TA TES IN SE VERAL TY. 
 
 estates in fee and in tail, but for life or years, may be held in 
 joint-tenancy. 2. There is no unity of time necessary to an 
 estate in co-parcenary. For if a man had two daughters, to 
 whom his estate descends in co-parcenary, and one dies before 
 the other, the surviving daughter and the heir of the other, or 
 when both are dead, their two heirs are still parceners : the 
 estates vesting in each of them at different times, though it be 
 the same quantity of interest, and held by the same title. 3. 
 Parceners, though they have a unity have not an entirety of 
 interest. They are properly entitled each to the whole of a 
 distinct moiety : and of course there is no jus accrescendi, or 
 survivorship between them : for each part descends severally to 
 their respective heirs, though the unity of possession continues. 
 And as long as the lands continue in a course of descent, and 
 united in possession, so long are the tenants therein, whether 
 *189] male or female, called parceners. But if *the possession 
 be once severed by partition, they are no longer parceners, but 
 tenants in severalty ; or if one parcener aliens her share, though 
 no partition be made, then are the lands no longer held in copar- 
 cenary, but in common. 
 
 Parceners are so called, saith Littleton, because they may be 
 constrained to make partition. And he mentions many methods 
 of making it ; four of which are by consent, and one by com- 
 pulsion. The first is, where they agree to divide the lands into 
 equal parts in severalty, and that each shall have such a deter- 
 minate part. The second is, when they agree to choose some 
 friend to make partition for them, and then the sisters shall 
 choose each of them her part according to seniority of age ; or 
 otherwise, as shall be agreed. The privilege of seniority is in 
 this case personal; for if the eldest sister be dead, her issue 
 shall not choose first, but the next sister. * * * * A third 
 method of partition is, where the eldest divides, and then she 
 shall choose last ; for the rule of law is, cujiis est divisio, alterius 
 est electio. The fourth method is, where the sisters agree to 
 cast lots for their shares. And these are the methods by con- 
 sent. That by compulsion is, where one or more sue out a writ 
 of partition against the others ; whereupon the sheriff shall go 
 to the lands, and make partition thereof by the verdict of a jury 
 there impanelled, and assign to such of the parceners her part 
 
JOINT-TENANCY, COPARCENARY, ETC. 367 
 
 in severalty. But there are some things * which are in [*190 
 their nature impartible. The mansion-house, comnfon of esto- 
 vers, common of piscary uncertain, or any other common with- 
 out stint, shall not be divided ; but the eldest sister, if she 
 pleases, shall have them, and make the others a reasonable satis- 
 faction in other parts of the inheritance : or, if that cannot be, 
 then they shall have the profits of the thing by turns. 
 
 There is yet another consideration attending the estate in 
 coparcenary, that if one of the daughters has had an estate given 
 with her in frank-marriage by her ancestor (which we may re- 
 member was a species of estates-tail, freely given by a relation 
 for the advancement of his kinswoman in marriage), in this case, 
 if lands descend from the same ancestor to her and her sisters in 
 fee-simple, she or her heirs shall have no share of them, unless 
 they will agree to divide the lands so given in frank-marriage in 
 equal proportion with the rest of the lands descending. This mode 
 of division was known in the law of the Lombards ; which directs 
 the woman so preferred in marriage, and claiming her share of the 
 inheritance, mitterein confusum cuin sororibus, quantum, pater aut 
 frater ei dederit, quando ambulaverit ad m. iritum. With us it is 
 denominated bringing those lands into hotch-pot: which term I shall 
 explain in the very words of Littleton : " It seemeth that this word 
 hotch-pot, is in English a pudding ; for in a pudding is not com- 
 monly put one thing alone, but one thing with other things to- 
 gether." By this housewifely metaphor our ancestors meant to 
 inform us that the lands, both those given in frank-marriage and 
 those descending in fee-simple, should be mixed and blended to- 
 gether, and then divided in equal portions among all the 
 daughters. But this was left to the choice of the donee in frank- 
 marriage : and if she did not choose to put her lands into hotch- 
 pot, she was presumed to be sufficiently *provided for, [*191 
 and the rest of the inheritance was divided among her other sis- 
 ters. The law of hotch-pot took place only when the other 
 lands descending from the ancestor were fee-simple ; for if they 
 descended in tail, the donee in frank-marriage was entitled to her 
 share, without bringing her lands so given into hotch-pot. And 
 the reason is, because lands descending in fee-simple are dis- 
 tributed, by the policy of law, for the maintenance of all the 
 daughters , and if one has a sufficient provision out of the same 
 inheritance, equal to the rest, it is not reasonable that she should 
 
368 OF ES TA TES IN SE VERAL TY, 
 
 have more : but lands, descending in tail, are not distributed by 
 the operation of the law, but by the designation of the giver, pc? 
 forinam doni : it matters not therefore how unequal this distri- 
 bution may be. Also, no lands, but such as are given in frank- 
 marriage, shall be brought into hotch-pot ; for no others are 
 looked upon in law as given for the advancement of the woman, 
 or by way of marriage-portion. And, therefore, as gifts in frank- 
 marriage are fallen into disuse, I should hardly have mentioned 
 the law of hotch-pot, had not this method of division been re- 
 vived and copied by the statute for distribution of personal es- 
 tates, which we shall hereafter consider at large. 
 
 The estate in coparcenary may be dissolved, either by parti- 
 tion, which disunites the possession ; by alienation of one par- 
 cener, which disunites the title, and may disunite the interest ; 
 or by the whole at last descending to and vesting in one single 
 person, which brings it to an estate in severalty. 
 
 IV. Tenants in common are such as hold by several and dis- 
 tinct titles, but by unity of possession ; because none knoweth 
 his own severalty, and therefore they all occupy promiscuously. 
 This tenancy therefore happens where there is a unity of 
 possession merely, but perhaps an entire disunion of in- 
 terest, of title, and of time. For if there be two tenants in 
 common of lands, one may hold his part in fee-simple, the other in 
 *192] tail, or for life ; so that there is no *necessary unity of in- 
 terest : one may hold by descent, the other by purchase ; or the 
 one by purchase from A, the other by purchase from B ; so that 
 there is no unity of title ; one's estate may have been vested fifty 
 years, the other's but yesterday ; so there is no unity of time. 
 The only unity there is, is that of possession : and for this Little- 
 ton gives the true reason, because no man can certainly tell which 
 part is his own ; otherwise even this would be soon destroyed. 
 
 Tenancy in common may be created, either by the destruc- 
 tion of the two other estates, in joint-tenancy and coparcenary, or 
 by special limitation in a deed.' By the destruction of the 
 two other estates, I mean such destruction as does not sever the 
 
 ' One of the most common modes in which tenancies in common are cre- 
 ated in the United States, is by the descent of lands from an ancestor dying 
 intestate, upon two or more persons as heirs at law. Various modes oi 
 limiting an estate which would have created a joint-tenancy at common law 
 are now held to create a tenancy in common (see ante, note l). 
 
JOINT-TENANCY, COPARCENARY, ETC. 369 
 
 unity of possession, but only the unity of title or interest. As, 
 if one of two joint-tenants in fee, alienes his estate for the life of 
 the alienee, the alienee and the other joint-tenant are tenants in 
 common ; for they have now several titles, the other joint-tenant 
 by the original grant, the alienee by the nevv- alienation ; and 
 they also have several interests, the former joint-tenant in fee- 
 simple, the alienee for his own life only. So, if one joint-tenant 
 gives his part to A in tail, and the other gives his to B in tail, 
 the donees are tenants in common, as holding by different titles 
 and conveyances. If one of two parceners alienes, the alienee 
 and the remaining parcener are tenants in common ; because 
 they hold by different titles, the parcener by descent, the alienee 
 by purchase. So likewise, if there be a grant to two men, or two 
 women, and the heirs of their bodies, here the grantees shall be 
 joint-tenants of the life-estate, but they shall have several inherit- 
 ances ; because they cannot possibly have one heir of their two 
 bodies, as might have been the case had the limitation been to a 
 man and woman, and the heirs of their bodies begotten : and in 
 this, and the like cases, their issue shall be tenants in common ; 
 because they must claim by different titles, one as heir of 
 A, and the other as heir of B ; and those two not titles by 
 •purchase, but descent. In short, whenever an estate in [*193 
 joint-tenancy or coparcenary is dissolved, so that there be no 
 partition made, but the unity of possession continues, it is 
 turned into a tenancy in common. 
 
 A tenancy in common may also be created by express limita- 
 tion in a deed ; but here care must be taken not to insert words 
 which imply a joint-estate; and then if land be given to two or 
 more, and it be not joint-tenancy, it must be a tenancy in com- 
 mon. But the law is apt in its constructions to favor joint-ten- 
 ancy, rather than tenancy in common, because the divisible 
 services issuing from land (as rent, etc.), are not divided, nor the 
 entire services (as fealty) multiplied, by joint-tenancy, as they 
 must necessarily be upon a tenancy in common. Land given to 
 two, to be holden the one moiety to one, and the other moiety 
 to the other, is an estate in common ; and if one grants to an- 
 other half his land, the grantor and grantee are also tenants in 
 common ; because as has been before observed, joint-tenants do 
 not take by distinct halves or moieties ; and by such grants the 
 division and severalty of the estate is so plainly expressed, that 
 
 24. 
 
370 OF ESTA TES IN SE VERAL TY, ETC. 
 
 it is impossible they should take a joint-interest in the whole of 
 the tenements. But a devise to two persons to hold jointly and 
 severally, is said to be a joint-tenancy ; because that is necessarily 
 implied in the word "jointly," the word " severally " perhaps 
 only implying the power of partition : and an estate given to A 
 and B, equally to be divided between them, though in deeds it 
 hath been said to be a joint-tenancy (for it implies no more than 
 the law has annexed to that estate, viz., divisibility), yet in %vills it 
 is certainly a tenancy in common ; because the devisor may be 
 presumed to have meant what is most beneficial to both devisees, 
 though his meaning is imperfectly expressed. And this nicety 
 in the wording of grants makes it the most usual as well 
 *194] as the safest way, when a tenancy in common *is meant 
 to be created, to add express words of exclusion as well 
 as description, and limit the estate to A and B, to hold as tenants 
 in common, and not as joint-tenants. 
 
 As to the incidents attending a tenancy in common : tenants 
 in common (like joint-tenants) are compellable by the statutes 
 of Henry VIII. and William III., before mentioned, to make 
 partition of their lands ; which they were not at common law. 
 They properly take by distinct moieties, and have no entirety of 
 interest ; and therefore there is no survivorship between tenants 
 in common. Their other incidents are such as merely arise from 
 the unity of possession ; and are therefore the same as appertain 
 to joint-tenants merely upon that account : such as being liable 
 to reciprocal actions of waste, and of account, by the statutes of 
 Westm. 2. ch. 22. and 4 Ann. ch. 16. For by the common law no 
 tenant in common was liable to account with his companion for 
 embezzling the profits of the estate ; though, if one actually 
 turns the other out of possession, an action of ejectment will lie 
 against him. But, as for other incidents of joint-tenants, which 
 arise from the privity of title, or the union and entirety of inter- 
 est (such as joining or being joined in actions, unless in the case 
 where some entire or indivisible thing is to be recovered), these 
 ^re not applicable to tenants in common, whose interests are dis- 
 tinct, and whose titles ^re not joint but several. 
 
 Estates in common can only be dissolved two ways ; I. By 
 unitmg all the titles and interests in one tenant, by purchase or 
 otherwise ; which brings the whole to one severalty : 2. By mak- 
 ing partition between the several tenants in common, which 
 
OF THE TITLE TO THINGS REAL, ETC. 371 
 
 gives them all respective severalties. For indeed tenancies in 
 common differ in nothing from sole estates, but merely in the 
 blending and unity of possession. And this finishes our inquiries 
 with respect to the nature of estates. 
 
 CHAPTER XIII. 
 
 [bL. COMM. — BOOK II. CH. XIII.] 
 
 Of the Title to Things Real, in General. 
 
 The foregoing chapters having been principally employed in 
 defining the nature of things real, in describing the tenures by 
 which they may be holden, and in distinguishing the several 
 Icinds of estate or interest that may be had therein ; I now come 
 to consider, lastly, the title to things real, with the manner of 
 acquiring and losing it. 
 
 A title is thus defined by Sir Edward Coke — Titulus est Jus ta 
 causa possidendiid quod nostrum est : or, it is the means whereby 
 the owner of lands hath the just possession of his property. 
 
 There are several stages or degrees requisite to form a com 
 plate title to lands and tenements. We will consider them in a 
 progressive order. 
 
 I. The lowest and most imperfect degree of title consists in 
 the mere naked possession, or actual occupation of the estate ; 
 without any apparent right, or any shadow or pretence of right, 
 to hold and continue such possession. This may happen when 
 one man invades the possession of anotheis and by force or sur- 
 prise turns him out of the occupation of his lands ; which is 
 termed a disseizin, being a deprivation of that actual seizin, or 
 corporal freehold of the lands, which the tenant before enjoyed. 
 Or it may happen, that after the death of the ancestor and before 
 the entry of *the heir, or after the death of a particular [*196 
 tenant and before the entry of him in remainder or reversion, a 
 stranger may contrive to get possession of the vacant land, and 
 hold out him that had a. right to enter. In all which cases, and 
 
372 OF THE TITLE OF THINGS REAL, 
 
 many others that might be here suggested, the wrong-doer has 
 only a mere naked possession, which the rightful owner may put 
 an end to, by a variety of legal remedies, as will more fully ap- 
 pear in the third book of these Commentaries. But in the mean 
 time, till some act be done by the rightful owner to divest this 
 possession and assert his title, such actual possession is, prima 
 facie, evidence of a legal title in the possessor ; and it may, by 
 length of time, and negligence of him who hath the right, by de- 
 grees ripen into a perfect and indefeasible title. And, at all events, 
 without such actual possession no title can be completely good. 
 II. The next step to a good and perfect title is the right oj 
 possession, which may reside in one man, while the actual pos- 
 session is not in himself, but in another. For if a man be dis- 
 seized, or otherwise kept out of possession, by any of the means 
 before mentioned, though the ac/«a/ possession be lost, yet he has 
 still remaining in him the right of possession ; and may exert 
 it whenever he thinks proper, by entering upon the disseizor, and 
 turning him out of that occupancy which he has so illegally 
 gained. But this right of possession is of two sorts : an apparent 
 right of possession, which may be defeated by proving a better ; 
 and an actual right of possession, which will stand the test against 
 all opponents. Thus if the disseizor, or other wrongdoer, dies 
 possessed of the land whereof he so became seized by his own 
 unlawful act, and the same descends to his heir ; now by the com- 
 mon law the heir hath obtained an apparent right, though the 
 actual right of possession resides in the person disseized ; and it 
 shall not be lawful for the person disseized to divest this apparent 
 right by mere entry or other act of his own, but only an action at 
 law : for, until the contrary be proved by legal demonstration, 
 *197] the law will rather presume the right to *reside in the heir, 
 whose ancestor died seized, than in one who has no such presump- 
 tive evidence to urge in his own behalf. Which doctrine in some 
 measure arose from the principles of the feudal law, which, after 
 feuds became hereditary, much favored the right of descent; in 
 order that there might be a person always upon the spot to per- 
 form the feudal duties and services ; and therefore when a feuda- 
 tory died in battle, or otherwise, it presumed always that his chil- 
 dren were entitled to the feud, till the right was otherwise deter* 
 mined by his fellow-soldiers and fellow-tenants, the peers of the 
 feudal court. But if he, who has the actual right of possession 
 
IN GENERAL. 373 
 
 puts in his claim, and brings his action within a reasonable time^ 
 and can prove by what unlawful means the ancestor became 
 seized, he will then by sentence of law recover that possession, 
 to which he hath such actual right. Yet, if he omits to bring 
 this his possessory action within a competent time, his adversary 
 may imperceptibly gain an actual right of possession, in conse- 
 quence of the other's negligence.* And by this, and certain 
 other means, the party kept out of possession may have nothing 
 left in him, but what we are next to speak of ; viz. : 
 
 III. The mere right of property, the jus proprietatis, without 
 either possession or even the right of possession. This is fre- 
 quently spoken of in our books under the name of the mere right, 
 jus merum ; and the estate of the owner is in such cases said to 
 be totally divested, and put to a right. A person in this situa- 
 tion may have the true ultimate property of the lands in him- 
 self : but by the intervention of certain circumstances, either by 
 his own negligence, the solemn act of his ancestor, or the deter- 
 mination of a court of justice, the presumptive evidence of that 
 right is strongly in favor of his antagonist ; who has thereby ob- 
 tained the absolute right of possession. As, in the first place, 
 if a person disseized, or turned out of possession of his estate, 
 neglects to pursue his remedy within the time limited by law : 
 by this means the disseizor or his heirs gain the actual right 
 of possession : *for the law presumes that either he [*198 
 had a good right originally, in virtue of which he entered on the 
 lands in question, or that since such his entry he has procured 
 a sufficient title ; and, therefore, after so long an acquiescence, 
 the law will not suffer his possession to be disturbed. without in- 
 quiring into the absolute right of property. Yet, still, if the per 
 son disseized or his heir has the true right of property remaining 
 in himself, his estate is indeed said to be turned into a mere right ; 
 but, by proving such his better right, he may at length recover the 
 lands. Again, if a tenant in tail discontinues his estate-tail, by 
 alienating the lands to a stranger in fee, and dies ; here the issue in 
 tail hath no right of possession, independent of the right of prop- 
 erty: for the law presumes, /n>«i3:/«aV, that the ancestor would 
 not disinherit, or attempt to disinherit, his heirs, unless he had 
 power so to do ; and therefore, as the ancestor had in himself 
 the right of possession, and has transferred the same to a stran- 
 ger, the law will not permit that possession now to be disturbed, 
 
374 OF THE TITLE TO THINGS REAL, ETC. 
 
 unless by showing the absolute right of property to reside in an 
 other person. The heir therefore in this case has only a men 
 right, and must be strictly held to the proof of it, in order to re- 
 cover the lands. Lastly, if by accident, neglect, or otherwise, 
 judgment is given for either party in zxiy possessory action (that 
 is, such wherein the right of possession only, and not that of 
 property, is contested), and t-he other party hath indeed in him- 
 self the right of property, this is now turned to a mere right; 
 and upon proof thereof in a subsequent action denominated a 
 writ of right, he shall recover his seizin of the lands. 
 
 Thus, if a disseizor turns me out of possession of my lands, 
 he thereby gains a mere naked possession, and I still retain the 
 right of possession, and right of property. If the disseizor dies, 
 and the lands descend to his son, the son gains an apparent right 
 oi possession ; but I still retain the actual xighX both oi possession 
 and property. If I acquiesce for thirty years, without bringing 
 any action to recover possession of the lands, the son gains the 
 *199] actual right of possession, and I retain *nothing but the 
 mere right of property. And even this right of property will fail, 
 or at least it will be without a remedy, unless I pursue it within 
 the space of sixty years. So also if the father be tenant in tail, 
 and alienes the estate-tail to a stranger in fee, the alienee there- 
 by gains the right of possession, and the son hath only the mere 
 right or right of property. And hence it will follow, that one man 
 may have the possession, another the right of possession, and a 
 third the right of property} For if a tenant in tail infeoffs A in 
 
 1 The formerly established English doctrine, that one man might have the 
 possession, another the right of possession, and a third the right of property, 
 is no longer maintained. The law now recognizes only the possession and 
 right of possession, ignoring altogether any right of property, as distinct from 
 these symbols of ownership. This change has been effected by the abolition 
 of those real actions, by which the right of property was determined, as dis- 
 tinguished from the right of possession. " The statute 3 & 4 Will. IV., ch. 27, 
 provides that, at the determination of the period which it limits, 'Ca&right and 
 title of the person, who might within that time have pursued his remedy for the 
 recovery of the 'property , shall be extinguished j and its great feature and chief 
 effect therefore is, to make right dependent on possession, by limiting the 
 period within which that right can be asserted, to 20 years from the time at 
 which the right of the claimant first accrued." (Kerr's Blackstone, p. 167.) 
 
 In the United States, statutes of limitation usually prescribe the same 
 period (20 years), as the time within which actions for the recovery of real 
 property must be brought, to prevent the extinguishment of an owner's titlj 
 by adverse possession. 
 
OF TITLE BY DESCENT. 375 
 
 fee-simple, and dies, and B disseizes A ; now B will have the 
 possession, A the right of possession, and the issue in tail the right 
 ofpropetty : A may recover the possession against B ; and after- 
 wards the issue in tail may evict A, and unite in himself the 
 possession, the right of possession, and also the right of prop)- 
 erty. In which union consists — 
 
 IV. A complete title to lands, tenements, and hereditaments. 
 For it is an ancient maxim of the law, that no title is completely 
 good, unless the right of possession be joined with the right of 
 property ; which right is then denominated a double right, jus 
 duplicatum, or droit drgit. And when to this double right the 
 actual possession is also united, there is, according to the ex- 
 pression of Y\tX.2i, juris et seisince conjunctio;\h&Ti, and then only, 
 is the title completely legal. 
 
 CHAPTER XIV. 
 
 [bL. COMM. — BOOK II. CH. XIV.] 
 
 Of Title by Descent} 
 
 The several gradations and stages, requisite to form a complete 
 title to lands, tenements, and hereditaments, having been briefly 
 stated in the preceding chapter, we are next to consider the sev- 
 eral manners, in which this complete title (and therein principal- 
 ly the right of property) may be reciprocally lost and acquired : 
 whereby the dominion of things real is either continued or trans- 
 ferred from one man to another. And here we must first of all 
 observe, that (as gain and loss are terms of relation, and of a 
 reciprocal nature) by whatever method one man gains an estate, 
 by that same method or its correlative some other man has lost 
 it. As where the heir acquires by descent, the ancestor has first 
 lost or abandoned his estate by his death : where the lord gains 
 land by escheat, the estate of the tenant is first of all lost by the 
 natural or legal extinction of all his hereditary blood : where a 
 
 'In this chapter a few passages, of comparatively little importance, have 
 been omitted. The places of omission are distinguished by asterisks. 
 
376 OF TITLE BY DESCENT 
 
 man gains an interest by occupancy, the former owner has pre. 
 viously relinquished his right of possession : where one man 
 claims by prescription or immemorial usage, another man has 
 either parted with his right by an ancient and now forgotten 
 grant, or has forfeited it by the supineness or neglect of himself 
 and his ancestors for ages : and so, in case of forfeiture, the ten- 
 ant by his own misbehavior or neglect has renounced his inter- 
 est in the estate ; whereupon it devolves to that person who by 
 law may take advantage of such default ; and, in alienation by 
 *201] common assurances, *the two considerations of loss and 
 acquisition are so interwoven, and so constantly contemplated 
 together, that we never hear of a conveyance, without at once 
 receiving the idea as well of the grantor as the grantee. 
 
 The methods therefore of acquiring on the one hand, and of 
 losing on the other, a title to estates in things real, are reduced 
 by our law to two ; descent, where the title is vested in a man by 
 the single operation of law ; and purchase, where the title is 
 vested in him by his own act or agreement. 
 
 Descent, or hereditary succession, is the title whereby a man 
 on the death of his ancestor acquires his estate by right of rep- 
 resentation, as his heir-at-law. An heir, therefore, is he upon 
 whom the law casts the estate immediately on the death of the 
 ancestor : and an estate, so descending to the heir, is in law 
 called the inheritance. 
 
 The doctrine of descents, or law of inheritances in fee-simple, 
 is a point of the highest importance ; and is indeed the principal 
 object of the laws of real property in England. All the rules 
 relating to purchases, whereby the legal course of descents is 
 broken and altered, perpetually refer to this settled law of in- 
 heritance, as a datum or first principle universally known, and 
 upon which their subsequent limitations are to work. Thus a 
 gift in tail, or to a man and the heirs of his body, is a lim- 
 itation that cannot be perfectly understood without a pre- 
 vious knowledge of the law of descents in fee-simple. One may 
 well perceive that this is an estate confined in its descent to such 
 heirs only of the donee, as have sprung or shall spring from his 
 body ; but who those heirs are, whether ail his children both 
 male and female, or the male only, and (among the males) 
 whether the eldest, youngest, or other son alone, or all the sons 
 together, shall be his heirs ; this is a point that we -nust result 
 
OF TITLE BY DESCENT. 377 
 
 back to the standing law of descents in fee-simple to be In- 
 fornied of. 
 
 •In order, therefore, to treat a matter of this universal [*202 
 consequence the more clearly, I shall endeavor to lay aside such 
 matters as will only tend to breed embarrassment and confusion 
 in our inquiries, and shall confine myself entirely to this one ob- 
 ject. I shall therefore decline considering at present who are, 
 and who are not, capable of being Iieirs ; reserving that for the 
 chapter of escheats. I shall also pass over the frequent division 
 of descents into those by custom, statute, and common law : for 
 descents by particular fustom, as to all the sons in gavelkind, and 
 to the youngest in borough-english, have already been often 
 hinted at, and may also be incidentally touched upon again ; but 
 will not make a separate consideration by themselves, in a sys- 
 tem so general as the present : and descents by statute, or fees- 
 tail perfonnam doni, in pursuance of the statute of Westminster 
 the second, have also been already copiously handled ; and it has 
 been seen that the descent in tail is restrained and regulated ac- 
 cording to the words of the original donation, and does not en 
 tirely pursue the common law doctrine of inheritance ; which, and 
 which only, it will now be our business to explain. 
 
 And, as this depends not a little on the nature of kindred, 
 and the several degrees of consanguinity, it will be previously 
 necessary to state, as briefly as possible, the true notion of this 
 kindred or alliance in blood. 
 
 Consanguinity, or kindred, is defined by the writers on these 
 subjects to be " vinculum personarum ab eodem stipite descenden- 
 tium : " the connection or relation of persons descended from the 
 same stock or common ancestor. This consanguinity is either 
 lineal, or collateral. 
 
 *Lineal consanguinity is that which subsists between [*203 
 persons, of whom one is descended in a direct line from the 
 other, as between John Stiles {fiiQ propositus in the table of con- 
 sanguinity) and his father, grandfather, great-grandfather, and 
 so upwards in the direct ascending line ; or between John Stiles 
 and his son, grandson, great-grandson, and so downwards in the 
 direct descending line. Every generation, in this lineal direct 
 consanguinity, constitutes a different degree, reckoning either 
 upwards or downwards : the father of John Stiles is related to 
 him in the first degree, and so likewise is his son ; his grandsire 
 
378 OF TITLE BY DESCENT. 
 
 and grandson in the second; his great-grandsire and great- 
 grandson in the third. This is the only natural way of reckon- 
 ing the degrees in the direct line, and therefore universally ob- 
 tains, as well in the civil, and canon, as in the common law. 
 
 The doctrine of lineal consanguinity is sufficiently plain and 
 obvious ; but it is at the first view astonishing to consider the 
 number of lineal ancestors which every man has, within no very 
 great number of degrees ; and so many different bloods is a man 
 said to contain in his veins, as he hath lineal ancestors. Of these 
 he hath two in the first ascending degree, his own parents ; he 
 hath four in the second, the parents of his father and the parents 
 of his mother ; he hath eight in the third, the parents of his two 
 grandfathers and two grandmothers ; and by the same rule of 
 progression, he hath an hundred and twenty-eight in the seventh ; 
 a thousand and twenty-four in the tenth : and at the twentieth 
 degree, or the distance of twenty generations, every man hath 
 above a million of ancestors, as common arithmetic will demon- 
 strate." This lineal consanguinity, we observe, falls strictly 
 *204] within the definition of vinculum *personarum ab eodem 
 stipite descendentium ; since lineal relations are such as descend 
 one from the other, and both of course from the same common 
 ancestor. 
 
 Collateral kindred answers to the same description : collateral 
 relations agreemg with the lineal in this, that they descend from 
 the same stock or ancestors, but differing in this, that they do 
 not descend one from the other. Collateral kinsmen are such 
 then as lineally spring from one and the same ancestor, who is the 
 stirps, or root, the stipes, trunk, or common stock, from whence 
 these relations are branched out. As if John Stiles hath two 
 *205] sons, who hath *each a numerous issue; both these is- 
 sues are lineally descended from John Stiles as their common 
 ancestor ; and they are collateral kinsmen to each other, because 
 they are all descended from this common ancestor, and all have 
 ^ [This calculation is right in numbers, but is founded on a false supposition 
 as is evident from the results ; one of which is to give a man a greater num- 
 ber of ancestors all living at one time than the whole population of the earth: 
 another would be, that each man now living, instead of being descended 
 from Noah and his wife alone, might claim to have had at that time an almost 
 indefinite number of relatives. Intermarriages among relatives are one check 
 on this incredible increase of relatives. This is noticed afterwards by Black- 
 stone, as to collateral relatives.] 
 
OF TITLE B Y DESCENT. 381 
 
 a portion of his blood in their veins, which denominates them 
 consanguineos. 
 
 We must be careful to remember, that the very being of col- 
 lateral consanguinity consists in this descent from one and the 
 same common ancestor. Thus Titius and his brother are re- 
 lated ; why ? because both are derived from one father. Tititts 
 and his first cousin are related ; why .' because both descend 
 from the same grandfather ; and his second cousin's claim to 
 consanguinity is this, that they are both derived from one and 
 the same great-grandfather. In short, as many ancestors as a 
 man has, so many common stocks he has, from which collateral 
 kinsmen may be derived. And as we are taught by holy writ, 
 that there is one couple of ancestors belonging to us all, from 
 whom the whole race of mankind is descended, the obvious and 
 undeniable consequence is, that all men are in some degree rela- 
 ted to each other. For indeed, if we only suppose each couple 
 of our ancestors to have left, one with another, two children ; and 
 each of those children on an average to have left two more (and, 
 without such a supposition, the human species must be daily 
 diminishing) ; we shall find that all of us have now subsisting 
 near two hundred and seventy millions of kindred in the fifteenth 
 degree, at the same distance from the several common ancestors 
 as ourselves are ; besides those that are one or two descents 
 nearer to or farther from the common stock, who may amount to 
 as many more. And if this calculation should appear incompati- 
 ble with the number of inhabitants on the earth, it is because, 
 by intermarriages among the several descendants from the same 
 ancestor, a hundred or a thousand modes of consanguinity may 
 be consolidated in one person, or he may be related to us a hun- 
 dred or a thousand different ways. 
 
 *The method of computing these degrees in the [*206 
 canon law, which our law has adopted, is as follows : we begin at 
 the common ancestor, and reckon downwards : and in whatsoever 
 degree the two persons, or the most remote of them, is distant 
 from the common ancestor, that is the degree in which they are 
 related to each other. Thus Titius and his brother are related 
 in the first *degree ; for from the father to each of them [*207 
 is counted only one. Titius and his nephew are related in the 
 second degree ; for the nephew is two degrees removed from the 
 common ancestor ; viz. his own grandfather, the father of Titius 
 
382 OF TITLE BY DESCENT. 
 
 Or (tc give a more illustrious instance from our English annals). 
 King Henry the Seventh, who slew Richard the Third in the 
 battle of Bosworth, was related to that prince in the fifth degree. 
 Let the propositus therefore in the table of consanguinity repre- 
 sent King Richard the Third, and the class marked (e) King 
 Henry the Seventh. Now their common stock or ancestor was 
 King Edward the Third, the abavus in the same table : from him 
 to Edmond Duke of York, the proavus, is one degree ; to Richard 
 Earl of Cambridge, the avus, two ; to Richard Duke of York, the 
 pater, three ; to King Richard the Third, the propositus, four ; and 
 from King Edward the Third to John of Gaunt (a) is one degree; to 
 John Earl of Somerset (b), two ; to John Duke of Somerset (c), 
 three ; to Margaret Countess of Richmond (i)), four ; to King 
 Henry the Seventh (c), five. Which last-mentioned prince, being 
 the farthest removed from the common stock, gives the denom- 
 ination to the degree of kindred in the canon and municipal law. 
 Though, according to the computation of the civilians (who count 
 upwards, from either of the persons related, to the common stock, 
 and then downwards again to the other : reckoning a degree for 
 each person both ascending and descending), these two princes 
 were related in the ninth degree, for from King Richard the Third 
 to Richard Duke of York is one degree ; to Richard Earl of Cam- 
 bridge, two ; to Edmond Duke of York, three ; to King Edward 
 the Third, the common ancestor, four ; to John of Gaunt, five ; to 
 John Earl of Somerset, six ; to John Duke of Somerset, seven ; to 
 Margaret Countess of Richmond, eight ; to King Henry the Sev- 
 enth, nine. 
 
 *208] * The nature and degrees of kindred being thus in some 
 measure explained, I shall next proceed to lay down a series 
 of rules or canons of inheritance, according to which, estates 
 are transmitted from the ancestor to the heir ; together with 
 an explanatory comment, remarking their original and pro- 
 gress, the reasons upon which they are founded, and in some 
 cases their agreement with the laws of other nations. 
 
 I. The first rule is, that inheritances shall lineally descend to 
 the issue of the person who last died actually seized in infinitum; 
 but shall never lineally ascend/ 
 
 8 This rule was changed in England, by statute 3 & 4 Will. IV., ch. 106; 
 which went into effect in 1834. The rule now established is, thit inheritanrt 
 shall be traced from the last purchaser of the property ; and for this purpose 
 
OF TITLE BY DESCENT. 383 
 
 To explain the more clearly both this and the subsequent 
 rules, it must first be observed, that by law no inheritance can 
 vest, nor can any person be the actual complete heir of another, 
 till the ancestor is previously dead. Nemo est fueres vivetitis. 
 Before that time the person who is next in the line of succession 
 is called an heir apparent, or heir presumptive. Heirs apparent 
 are such, whose right of inheritance is indefeasible, provided they 
 outlive the ancestor ; as the eldest son or his issue, who must by 
 the course of the common law be heir to the father whenever he 
 happens to die. Heirs presumptive are such who, if the ances- 
 tor should die immediately, would in the present circumstances 
 of things be his heirs ; but whose right of inheritance may be 
 defeated by the contingency of some nearer heir being born ; as 
 a brother, or nephew, whose presumptive succession may be de- 
 stroyed by the birth of a child ; or a daughter, whose present 
 hopes may be hereafter cut off by the birth of a son. Nay, even 
 if the estate hath descended, by the death of the owner, to such 
 brother, or nephew, or daughter, in the former cases, the estate 
 shall be devested and taken away by the birth of a posthumous 
 child ; and, in the latter, it shall also be totally devested by the 
 birth of a posthumous son.* We must also remember, [*209 
 that no person can be properly such an ancestor, as that an in- 
 heritance of lands or tenements can be derived from him, unless 
 he hath had actual seizin of such lands, either by his own entry, 
 or by the possession of his own or his ancestor's lessee for years, 
 
 the person last entitled to the property shall be deemed to be the purchaser, 
 unless it be proved that he inherited it. The ancient maxim, J^m«a/a«/ 
 stipitem, is therefore, entirely abrogated. The person " last entitled to the 
 property " includes the last person who had a right thereto, whether he did 
 or did not obtain the possession, or receive the rents and profits thereof. 
 
 The rule that inheritances never lineally ascend, has also been altered ; 
 and it is now provided that an inheritance shall descend to the issue of the last 
 purchaser, and that, on failure of his issue, it shall pass to his nearest lineal 
 ancestor, or the issue of such ancestor, the ancestor taking in preference to his 
 or her issue. Paternal ancestors and their descendants are preferred to 
 maternal ancestors and their descendants. 
 
 In this country, the (ioctrme,seistna/aci/sttpi/em,ha.s also been abolished in 
 most, if not all, of the States, and an estate of inheritance passes to the heirs 
 of the person who last had the right of ownership therein ; and it is also a 
 general rule that, in default of lineal descendants, lineal ancestors inherit, in 
 preference to relatives of the collateral line. But collateral relatives are usually 
 admitted after a father or mother, in preference to more remote lineal ancestors 
 
384 OF TITLE BY DESCENT. 
 
 or by receiving rent from a lessee of a freehold : or unless he 
 hath had what is equivalent to corporal seizin in hereditaments 
 that are incorporeal ; such as the receipt of rent, a presentation 
 to the church in case of an advowson, and the like. But he 
 shall not be accounted an ancestor, who hath had only a bare 
 right or title to enter or be otherwise seized. And therefore all 
 the cases which will be mentioned in the present chapter, are 
 upon the supposition that the deceased (whose inheritance is 
 now claimed) was the last person actually seized thereof. For 
 the law requires this notoriety of possession, as evidence that the 
 ancestor had that property in himself, which is now to be trans- 
 mitted to his heir. Which notoriety had succeeded in the place 
 of the ancient feudal investiture, whereby, while feuds were 
 precarious, the vassal on the descent of lands was formerly ad- 
 mitted in the lord's court (as is still the practice in Scotland) 
 and there received his seizin, in the nature of a renewal of his 
 ancestor's grant, in the presence of the feudal peers ; till at 
 length, when the right of succession became indefeasible, an 
 entry on any part of the lands within the county (which if dis- 
 puted was afterwards to be tried by those peers), or other 
 notorious possession, was admitted as equivalent to the formal 
 grant of seizin, and made the tenant capable of transmitting his 
 estate by descent. The seizin therefore of any person, thus 
 understood, makes him the root or stock, from which all future 
 inheritance by right of blood must be derived : which is very . 
 briefly expressed in this maxim, seisina facit stipitem. 
 *210] *When therefore a person dies so seized, the inherit- 
 ance first goes to his issue : as if there be Geoffrey, John, and 
 Matthew, grandfather, father, and son ; and John purchases 
 lands, and dies ; his son Matthew shall succeed him as heir, and 
 not the grandfather Geoffrey ; to whom the land shall never 
 ascejid, but shall rather escheat to the lord. 
 
 This rule, so far as it is affirmative and relates to lineal 
 descents, is almost universally adopted by all nations ; and it 
 seems founded on a principle of natural reason, that (whenever 
 a right of property transmissible to representatives is admitted) 
 the possessions of parents should go, upon their decease, in the 
 first place to their children, as those to whom they have given 
 being, and for whom they are therefore bound to provide. But 
 the negative branch, or total exclusion of parents and all lineal 
 
OF TITLE BY DESCENT. 385 
 
 ancestors from succeeding to the inheritance of their ofl spring, 
 is peculiar to our own laws, and such as have been deduced from 
 the same original. * * * Yet that there is nothing unjust or 
 absurd in it, but that on the contrary it is founded upon very good 
 legal reason, may appear from considering as well the nature 
 of the rule itself, as the occasion of introducing it into our laws. 
 
 * We are to reflect, in the first place, that all rules of [*211 
 succession to estates are creatures of the civil polity, and jurii ■ 
 positivi merely. . The right of property, which is gained by 
 occupancy, extends naturally no farther than the life of the 
 present possessor : aftgr which the land by the law of nature, 
 would again become common, and liable to be seized by the next 
 occupant ; but society, to prevent the mischiefs that might ensue 
 from a doctrine so productive of contention, has established con- 
 veyances, wills, and successions ; whereby the property originally 
 gained by possession is continued and transmitted from one man 
 to another, according to the rules which each state has respect- 
 ively thought proper to prescribe. There is certainly therefore 
 no injustice done to individuals, whatever be the path of descent 
 marked out by the municipal law. 
 
 If we next consider the time and occasion of introducing 
 this rule into our law, we shall find it to have been grounded upon 
 very substantial reasons. I think there is no doubt to be made, 
 but that it was introduced at the same time with, and in conse- 
 quence of, the feudal tenures. For it was an express rule of the 
 feudal law, that siiccessionis feudi talis est natura, quod ascendentes 
 non succedunt ; and therefore the same maxim obtains also in 
 the French law to this day. Our Henry the First indeed, among 
 other restorations of the old Saxon laws, restored the right of 
 succession in the ascending line : but this soon fell again into 
 disuse ; for so early as Glanvil's time, who wrote under Henry 
 the Second, we find it laid down as established law, that hceredi- 
 toi nunquam ascendit ; which has remained an invariable maxim 
 ever since. These circumstances evidently show this rule to be 
 of feudal origin. 
 
 *« « »*«** «# 
 
 II. A second general rule or canon is, that the male issue 
 shall be admitted before the female.' 
 
 * This canon is still in force in English law, but does not prevail in the 
 United States, where it is the established rule that all the children shall in- 
 herit equally, males and females being classed together. 
 
386 OF TITLE BY DESCENT. 
 
 *213] *Thus sons shall be admitted before daughters; or, aj 
 our male lawgivers have somewhat uncomplaisantly expressed 
 it, the worthiest of blood shall be preferred. As if John Stiles 
 hath two sons, Matthew and Gilbert, and two daughters, Mar- 
 garet and Charlotte, and dies ; first Matthew, and (in case of his 
 death without issue) then Gilbert shall be admitted to the 
 , succession in preference to both the daughters. 
 
 This preference of males to females is entirely agreeable to 
 the law of succession among the Jews, and also among the states 
 of Greece, or at least among the Athenians ; but was totally 
 unknown to the laws of Rome (such of them, I mean, as are at 
 present extant) wherein brethren and sisters were allowed to 
 succeed to equal portions of the inheritance. I shall not here 
 enter into the comparative merit of the Roman and the other 
 constitutions in this particular, nor examine into the greater 
 dignity of blood in the male or female sex : but shall only observe, 
 that our present preference of males to females seems to have 
 arisen entirely from the feudal law. For though our British 
 ancestors, the Welsh, appear to have given a preference to 
 males, yet our Danish predecessors (who succeeded them) seem 
 to have made no distinction of sexes, but to have admitted all 
 the children at once to the inheritance. But the feudal law of 
 the Saxons on the continent (which was probably brought over 
 hither, and first altered by the law of king Canute) gives an 
 evident preference of the male to the female sex. " Pater aut 
 
 mater defuncti, filio non filice, h(Zreditatem relinquent 
 
 Qui defunctus non filios sed filias reliquerit, ad eas omnis hceredi- 
 tas p^rtineaty It is possible therefore that this preference might 
 be a branch of that imperfect system of feuds, which obtained 
 here before the conquest ; especially as it subsists among the 
 *214] customs of gavelkind, and as, in the *charter or laws oi 
 King Henry the First, it is not (like many Norman innovations) 
 given up, but rather enforced. The true reason of preferring 
 the males must be deduced from feudal principles : for, by the 
 genuine and original policy of that constitution, no female could 
 ever succeed to a proper feud, inasmuch as they were incapable 
 of performing those military services, for the sake of which that 
 system was established. But our law does not extend to a totai 
 exclusion of females, as the Salic law, and others, where feuds 
 were most strictly retained : it only postpones them to males ; 
 
OF TITLE BY DESCENT. 387 
 
 for though daughters are excluded by sons, yet they succeed 
 before any collateral relations ; our law thus steering a middle 
 course, between the absolute rejection of females, and the put- 
 ting them on a footing with males. 
 
 III. A third rule or canon of descent is this : that where 
 there are two or more males, in equal degree, the eldest only 
 shall inherit ; but the females all together.^ 
 
 As if a man hath two sons, Matthew and Gilbert, and two 
 daughters, Margaret and Charlotte, and dies ; Matthew his 
 eldest son shall alone succeed to his estate, in exclusion of 
 Gilbert the second sop and both daughters ; but, if both the 
 sons die without issue before the father, the daughters Mar- 
 garet and Charlotte shall both inherit the estate as coparce- 
 ners. 
 
 This right of primogeniture in males seems anciently to have 
 only obtained among the Jews, in whose constitution the eldest 
 son had a double portion of the inheritance ; in the same manner 
 as with us, by the laws of King Henry the First, the eldest son 
 had the capital fee or principal feud of his father's possessions, 
 and no other pre-eminence ; and *as the eldest daughter [*215 
 had afterwards the principal mansion, when the estate descend- 
 ed in coparcenary. The Greeks, the Romans, the Britons, the 
 Saxons, and even originally the feudists, divided the lands 
 equally ; some among all the children at large, some among the 
 males only. This is certainly the most obvious and natural way; 
 and has the appearance, at least in the opinion of younger broth- 
 ers, of the greatest impartiality and justice. But when the em- 
 perors began to create honorary feuds, or titles of nobility, it 
 was found necessary (in order to preserve their dignity) to make 
 them impartible, or ( as they styled them) feuda individua, and 
 in consequence descendible to the eldest son alone. This ex- 
 ample was farther enforced by the inconveniences that attended 
 the splitting of estates ; namely, the division of military services, 
 ' the multitude of infant tenants incapable of performing any 
 duty, the consequential weakening of, the strength of the king- 
 dom, and the inducihg younger sons to take up with the business 
 and idleness of a country life, instead of being serviceable to 
 
 ' This right of primogeniture is not recognized in the United States. No 
 listinction is made between the children in regard to their interests in th« 
 estate of the deceased. 
 
388 OF TITLE BY DESCENT. 
 
 themselves and the public, by engaging in mercantile, in mili- 
 tary, in civil, or in ecclesiastical employments. These reasons 
 occasioned an almost total change in the method of feudal 
 inheritances abroad ; so that the eldest male began universally 
 to succeed to the whole of the lands in all military tenures : and 
 in this condition the feudal constitution was established in Eng- 
 land by William the Conqueror. 
 
 Yet we find that socage estates frequently descended to all 
 the sons equally, so lately as when Glanvil wrote, in the reign of 
 Henry the Second ; and it is mentioned in the Mirror as a part of 
 our ancient constitution, that knights' fees should descend to the 
 eldest son, and socage fees should be partible among the male 
 children. However, in Henry the Third's time, we find by 
 Bracton that socage lands, in imitation of lands in chivalry, had 
 almost entirely fallen into the right of succession by primogeni- 
 •216] ture, as the law now stands : *except in Kent, where they 
 gloried in the preservation of their ancient gavelkind tenure, of 
 which a principal branch was a joint inheritance of all the sons ; 
 and except in some particular manors and townships, where 
 their local customs continued the descent, sometimes to all, 
 sometimes to the youngest son only, or in other more singular 
 methods of succession. 
 
 As to the females, they are still left as they were by the an- 
 cient law : for they were all equally incapable of performing any 
 personal service ; and therefore one main reason of preferring 
 the eldest ceasing, such preference would have been injurious to 
 the rest : and the other principal purpose, the prevention of the 
 too minute subdivision of estates, was left to be considered 
 and provided for by the lords, who had the disposal of these 
 female heiresses in marriage. However, the succession by pri- 
 mogeniture, even among females, took place as to the inheritance 
 of the crown ; wherein the necessity of a sole and* deterniinate 
 succession is as great in the one sex as the other. And the 
 right of sole succession, though not of primogeniture, was a.so 
 established with respect to female dignities and titles of honor. 
 For if a man holds an earldom to him and the heirs of his body, 
 and dies, leaving only daughters ; the eldest shall not of course 
 be countess, but the dignity is in suspense or abeyance till the 
 king shall declare his pleasure ; for he, being the fountain of 
 honor, may confer it on whirh of them he pleases. In which dis 
 
OF TITLE BY DESCENT. 389 
 
 position is preserved a strong trace of the ancient law of feuds, 
 before their descent by primogeniture even among the males was 
 established ; namely, that the lord might bestow them on which 
 of the sons he thought proper — '•' progressum est ut ad filios de- 
 veniret, in quern scilicet dominus hoc vellet beneficium con- 
 firmare!' 
 
 IV. A fourth rule, or canon of descents, is this : that the 
 lineal descendants, in infinitum, of any person deceased 
 *shall represent their ancestor ; that is, shall stand in the [*217 
 same place as the person himself would have done, had he been 
 living.* ^ 
 
 Thus the child, grandchild, or great-grandchild (e'iher male 
 or female) of the eldest son succeeds before the youngest son, 
 and so in infinitum. And these representatives shall take neither 
 more nor less, but just so much as their principals would have 
 done. As if there be two sisters, Margaret and Charlotte ; and 
 Margaret dies, leaving six daughters ; and then John Stiles, the 
 father of the two sisters, dies without other issue : these six 
 daughters shall take among them exactly the same as their 
 mvjther Margaret would have done, had she been living ; that is, 
 a moiety of the lands of John Stiles in coparcenary : so that, 
 upon partition made, if the land be divided into twelve parts 
 thereof, Charlotte the surviving sister shall have six, and her six 
 nieces, the daughters of Margaret,' one apiece. 
 
 This taking by representation is called succession in stir- 
 pes, according to the roots : since all the branches inherit the 
 same share that their root, whom they represent, would have 
 done. * * * * * 
 
 This mode of representation is a necessary consequence of the 
 double preference given by our law, first to the male issue, and 
 next to the first-born among the males, to both which the Roman 
 law is a stranger. For if all the children of three sisters were 
 in England to claim per capita, in their own right as next of kin 
 to the ancestor, without any respect to the stocks from whence 
 
 ' This is also the general rule in the law of descent in the United States, 
 when the lineal descendants are of unequal degrees of relationship to the 
 common ancestor in whose estate they share ; but when they are of equal 
 degrees of relationship, they take per capita, i. e. equally, or share and share 
 alike. 
 
390 OF TITLE BY DESCENT. 
 
 they sprung, and those children were partly male and partly fe 
 male ; then the eldest male among them would exclude not only 
 his own brethren and sisters, but all the issue of the other two 
 daughters ; or else the law in this instance must be inconsistent 
 with itself, and depart from the preference which is constantly 
 given to the males and the first-born, among persons in equal 
 degree. Whereas, by dividing the inheritance according to the 
 roots, or stirpes, the rule of descent is kept uniform and steady : 
 the issue of the eldest son excludes all other pretenders, as the 
 son himself (if living) would have done ; but the issue of two 
 daughters divide the inheritance between them, provided theii 
 mothers (if living) would have done the same : and among these 
 several issues, or representatives of the respective roots, the same 
 preference to males and the same right of primogeniture obtain 
 as would have obtained at the first among the roots themselves, 
 the sons or daughters of the deceased. And if a man hath two 
 *219] sons, A and B, and A dies leaving two *sons, and then the 
 grandfather dies ; now the eldest son of A shall succeed to the 
 whole of his grandfather's estate : and if A had left only two 
 daughters, they should have succeeded also to equal moieties of 
 tlie whole, in exclusion of B and his issue. But if a man hath 
 only three daughters, C, D, and E ; and C dies leaving two sons, 
 D leaving two daughters, and E leaving a daughter and a son 
 who is younger than his sister : here, when the grandfather dies, 
 the eldest son of C shall succeed to one third, in exclusion of the 
 younger ; the two daughters of D to another third in partner- 
 ship ; and the son of E to the remaining third, in exclusion of 
 his elder sister. And the same right of representation, guided 
 and restrained by the same rules of descent, prevails downwards 
 in infinitum. 
 
 V. A fifth rule is that on failure of lineal descendants, or 
 issue, of the person last seized, the inheritance shall descend to 
 his collateral relations, being of the blood of the first purchaser; 
 subject to the three preceding rules.'' ' 
 
 ' This rule is now modified by the provision, stated in a previous note, that 
 lineal ancestors shall inherit in preference to collateral kindred. 
 
 The rule generally established in the American law of descent, which is 
 most closely correspondent to this English rule, is that, in default of lineal 
 descendants or ancestors who are first entitled to inherit the property, the 
 
OF TITLE BY DESCENT. 391 
 
 Thus if Geoffrey Stiles purchases land, and it descends to 
 John Stiles, his son, and John dies seized thereof without issue ; 
 whoever succeeds to this inheritance must be of the blood of 
 Geoffrey, the first purchaser of this family. The first purchaser, 
 Perquisitor, is he who first acquired the estate to his family, 
 whether the same was transferred to him by sale or by gift, or 
 by any other method, except only that of descent. 
 
 This is a rule almost peculiar to our own laws, and those of 
 a similar original. For it was entirely unknown among the Jews, 
 Greeks, and Romans ; none of whose laws looked any farther 
 than the person himsejf who died seized of the estate ; but as- 
 signed him an heir, without considering by what title he gained 
 it, or from what ancestor he derived it. But the law of Nor- 
 mandy agrees with our law in this respect ; nor indeed is that 
 agreement to be wondered at, since the law of descents in both 
 is of feudal original ; and this rule or canon cannot otherwise be 
 accounted for than by recurring to feudal principles. 
 
 When feuds first began to be hereditary, it was made a ne- 
 cessary qualification of the heir, who would succeed to a feud 
 that he should be of the blood of, that is, lineally de-* [*221 
 scended from, the first feudatory or purchaser. In consequence 
 whereof, if a vassal died seized of a feud of his own acquiring, or 
 feudum novum, it could not descend to any but his own offspring ; 
 no, not even to his brother, because he was not descended, nor 
 derived his blood, from the first acquirer. But if it was feudum 
 antiquum, that is, one descended to the vassal from his ances- 
 tors, then his brother, or such other collateral relation as was 
 descended and derived his blood from the first feudatory, might 
 succeed to such inheritance. * * * The true feudal rea- 
 son for which rule was this ; that what was given to a man, for 
 his personal service and personal merit, ought not to descend 
 to any but the heirs of his person. * * * 
 
 However, in process of time, when the feudal rigor was in 
 part abated, a method was invented to let in the collateral rela- 
 tions of the grantee to the inheritance, by granting him b. feudum 
 novum to hold ut feudum antiquum ; that is with all the quali- 
 
 inheritance passes to collateral relatives. The classes of relatives who shall 
 inherit in such a case are specially designated by the statutes of the several 
 States, and th jre is considerable diversity of detail in the provisions of such 
 itatutes. 
 
392 OF TITLE BY DESCENT. 
 
 ties annexed to a feud derived from his ancestors, and then the 
 collateral relations were admitted to succeed even in infinitum, 
 because they might have been of the blood of, that is, descended 
 *222] from the first imaginary purchaser. For *since it is 
 not ascertained in such general grants, whether this feud shall 
 be held utfeudum paternum or feudum avitum, but ut feudum 
 antiquum merely ; as a feud of indefinite antiquity ; that is, since 
 it is not ascertained from which of the ancestors of the grantee 
 this feud shall be supposed to have descended ; the law will not 
 ascertain it, but will suppose any of his ancestors, /w re nata, 
 to have been the first purchaser ; and therefore it admits any of 
 his collateral kindred (who have the other necessary requisites), 
 to the inheritance, because every collateral kinsman must be 
 descended from some one of his lineal ancestors. 
 
 Of this nature are all the grants of fee-simple estates of this 
 kingdom : for there is now in the law of England no such thing 
 as a grant of a. feudum novum, to be held ut novum ; unless in 
 the case of a fee-tail, and there we see that this rule is strictly 
 observed, and none but the lineal descendants of the first donee 
 (or purchaser) are admitted ; but every grant of lands in fee-sim- 
 ple is with us a feudum, novum to be held ut antiquum, as a feud 
 whose antiquity is indefinite ; and therefore the collateral kin- 
 dred of the grantee, or descendants from any of his lineal ances- 
 tors, by whom the lands might have possibly been purchased, 
 are capable of being called to the inheritance. ***** 
 
 This then is the great and general principle, upon which the 
 law of collateral inheritances depends ; that, upon failure of issue 
 in the last proprietor, the estate shall descend to the blood of the 
 first purchaser ; or, that it shall result back to the heirs of the 
 body of that ancestor, from whom it either really has, or is sup- 
 posed by fiction of law to have originally descended ; according 
 to the rule laid down in the year-books, Fitzherbert, Brook, and 
 Hale, " that he who would have been heir to the father of the 
 deceased " (and, of course, to the mother, or any other real or 
 supposed purchasing ancestor), " shall also be heir to the son ; " 
 a maxim that will hold universally, except in the case of a 
 brother or sister of the half-blood, which exception (as we shall 
 see hereafter), depends upon very special grounds. 
 
 The rules of inheritance that remain are only rules of evi- 
 dence, calculated to investigate who the purchasing ancestor 
 
OF TITLE BY DESCENT 393 
 
 was ; which * in fetidis vere antiquis has in process of [*224 
 time been forgotten, and is supposed so to be in feuds that arc 
 held ut antiquis. 
 
 VI. A sixth rule or canon therefore is, that the collateral 
 heir of the person last seized must be his next collateral kins- 
 man, of the whole blood. ' 
 
 First, he must be his next collateral kinsman, either person- 
 ally ox jure representationis ; which proximity is reckoned accord- 
 ing to the canonical degrees of consanguinity before mentioned. 
 Therefore, the brother being in the first degree, he and his de- 
 scendants shall exclude the uncle and his issue, who is only in 
 the second. And herein consists the true reason of the different 
 methods of computing the degrees of consanguinity, in the civil 
 law on the one hand, and in the canon and common laws on the 
 other. The civil law regards consanguinity, principally with re- 
 spect to successions, and therein very naturally considers only 
 the person deceased, to whom the relation is claimed ; it there- 
 fore counts the degrees of kindred according to the number of 
 persons through whom the claim must be derived from him ; 
 and makes not only his great-nephew, but also his first-cousin to 
 be both related to him in the fourth degree ; because there are 
 three persons between him and each of them. The canon law 
 regards consanguinity principally with a view to prevent inces- 
 tuous marriages, between those who have a large proportion of 
 the same blood running in their respective veins ; and therefore 
 looks up to the author of that blood, or the common ancestor, 
 reckoning the degrees from him ; so that the great nephew is 
 related in the third canonical deg'ree to the person proposed, and 
 the first-cousin in the second ; the former being distant three de- 
 grees from the common ancestor (the father of the propositus), and 
 
 ' This rule has also been altered to some extent by statute 3 & 4 Will. 
 IV. ch. 106. Relatives of the half-blood are now entitled to inherit next after 
 any relation in the same degree of the whole blood, and his issue, when the 
 common ancestor is a male, and next after the common ancestor, when the 
 common ancestor is a female. 
 
 In this country, there is much diversity in the statutory provisions of 
 different States, in regard to inheritances by relatives of the whole and of 
 the half-blood. In some States, no distinction is made between those two 
 classes ; but in the larger number, relatives of the half-blood are postponed 
 to those of the whole blood. In no state, however, are those of the hall 
 blood entirely excluded from the inheritance. 
 
394 OF TITLE BY DESCENT. 
 
 therefore deriving only one-fourth of his blood froni the bame 
 fountain ; the latter, and also th&frofositus himself, being each of 
 them distant only two degrees from the common ancestor (the 
 grandfather of each), and therefore having one-half of each of their 
 bloods the same. The common law regards consanguinity prin- 
 cipally with respect to descents; and having therein the same 
 *225] object in view as the civil, it may seem as if it ought * to 
 proceed according to the civil computation. But as it also re- 
 spects the purchasing ancestor, from whom the estate was de- 
 rived, it therein resembles the canon law, and therefore counts 
 in degrees in the same manner. Indeed the designation of per- 
 son, in seeking for the next of kin, will come to exactly the same 
 end (though the degrees will be differently numbered), which- 
 ever method of computation we suppose the law of England to 
 use ; since the right of representation, of the parent by the issue, 
 is allowed to prevail m infinitum. This allowance was abso- 
 lutely necessary, else there would have frequently been many 
 claimants in exactly the same degree of kindred, as (for in- 
 stance) uncles and nephews of the deceased ; which multiplicity, 
 though no material inconvenience in the Roman law of partible 
 inheritances, yet would have been productive of endless confu- 
 sion where the right of sole succession, as with us, is established. 
 The issue or descendants therefore of John Stiles's brother are 
 all of them in the first degree of kindred with respect to inherit- 
 ances, those of his uncle in the second, and those of his great- 
 uncle in the third ; as their respective ancestors, if living, would 
 have been ; and are severally called to the succession in right 
 of such their representative proximity. 
 
 The right of representation being thus established, the former 
 part of the present rule amounts to this ; that on failure of issue 
 of the person last seized, the inheritance shall descend to the 
 other subsisting issue of his next immediate ancestor. Thus, if 
 John Stiles dies without issue, his estate shall descend to Fran- 
 cis, his brother, or his representatives ; he being lineally de- 
 scended from Geoffrey Stiles, John's next immediate ancestor, or 
 father. On failure of brethren, or sisters, and their issue, it 
 shall descend to the uncle of John Stiles, the lineal descendant 
 of his grandfather George, and so on in infinitum.* * * * 
 
 *226] * Now here it must be observed, that the lineal ances* 
 
OF TITLE BY DESCENT. 395 
 
 tors, though (according to the first rule) incapable themselves of 
 succeeding to the estate, because it is supposed to have already 
 passed them, are yet the common stocks from which the next 
 successor must spring. And therefore in the Jewish law, which 
 in this respect entirely corresponds with ours, the father or other 
 lineal ancestor is himself said to be the heir, though long since 
 dead, as being represented by the persons of his issue ; who are 
 held to succeed, not in their own rights, as brethren, uncles, &c., 
 but in right of representation, as the offspring of the father, 
 grandfather, &c., of the deceased. But though the common an- 
 cestor be thus the root ,of the inheritance, yet with us it is not 
 necessary to name him in making out the pedigree or descent. 
 For the descent between two brothers is held to be an immedi- 
 ate descent ; and therefore title may be made by one brother or 
 his representative to or through another without mentioning their 
 common father.' If Geoffrey Stiles hath two sons, John and 
 Francis, Francis may claim as heir to John, without naming 
 their father Geoffrey ; and so the son of Francis may claim as 
 cousin and heir to Matthew the son of John, without naming 
 the grandfather ; viz. as son of Francis, who was the brother of 
 John, who was the father of Matthew. But though the common 
 ancestors are not named in deducing the pedigree, yet the law 
 still respects them as the fountains of inheritable blood : and 
 therefore, in order to ascertain the collateral heir of John Stiles, 
 it is first necessary to recur to his ancestors in the ' first degree ; 
 and if they have left any other issue besides John, that issue will 
 be his heir. On default of such, we must ascend one step 
 higher, to the ancestors in the second degree, and then to those 
 
 'This rule of law no longer prevails, since it was enacted by stat. 3 & 4 
 Will. IV. ch. 106, that no brother or sister should be considered to inherit 
 immediately from his or her brother or sister, but every descent from a 
 brother or sister shall be traced through the parent. It was an important 
 consequence of the former rule, that brothers who were natural-born 
 subjects might inherit from each other, though the father was an alien 
 stranger, through whom by law no inheritance could be traced. Since the de- 
 scent between the brothers was deemed to be immediate, it was not traced 
 througli the father, and his alienage, therefore, was unimportant in this re- 
 spect. { See Collingwoodv. Pace, i Vent. 413.) But in recent times it has 
 been provided by statute that relatives may inherit in certain cases, although 
 it is necessary to trace descent through an alien ancestor. Similar statutes 
 have been passed in a number of the United States. (See Luhrs v. Eimer, 
 80 N. Y. 171.) 
 
396 OF TITLE BY DESCENT. 
 
 in the third and fourth, and so upwards in infinitum, till some 
 couple of ancestors be found, who have other issue descend- 
 ing from them besides the deceased, in a parallel or collateral 
 line From these ancestors the heir of John Stiles must derive 
 his descent ; and in such derivation the same rules must be ob- 
 •227] served, with regard to the sex, *primogeniture and repre- 
 sentation laid down with regard to lineal descents from the per- 
 son of the last proprietor. 
 
 But, secondly, the heir need not be the nearest kinsman ab- 
 solutely, but only sub modo ; that is, he must be the nearest 
 kinsman of the whole blood, for if there be a much nearer kins- 
 man of the ^d:^ blood, a distant kinsman of the whole blood shall 
 be admitted, and the other entirely excluded; nay, the estate 
 shall escheat to the lord, sooner than the half blood shall 
 inherit. 
 
 A kinsman of the whole blood is he that is derived, not only 
 from the same ancestor, but from the same couple of ancestors. 
 For, as every man's own blood is compounded of the bloods of 
 his respective ancestors, he only is properly of the whole or en- 
 tire blood with another, who hath (so far as the distance of de- 
 grees will permit) all the same ingredients in the composition of 
 his blood that the other had. Thus, the blood of John Stiles be- 
 ing composed of those of Geoffrey Stiles his father, and Lucy 
 Baker his mother, therefore his brother Francis, being descend- 
 ed from both the same parents, hath entirely the same blood with 
 John Stiles ; or he is his brother of the whole blood. But if, 
 after the death of Geoffrey, Lucy Baker the mother marries a 
 second husband, Lewis Gay, and hath issue by him ; the blood 
 of this issue, being compounded of the blood of Lucy Baker (it 
 is true) on the one part, but that of Lewis Gay (instead of Geof- 
 frey Stiles), on the other part, it hath therefore only half the 
 same ingredients with that of John Stiles ; so that he is only his 
 brother of the half blood, and for that reason they shall never in- 
 herit to each other. So also, if the father has two sons, A and 
 B, by different venters or wives ; now these two brethren are not 
 brethren of the whole blood, and therefore shall never inherit to 
 each other, but the estate shall rather escheat to the lord. Nay, 
 even if the father dies, and his lands descend to his eldest son A, 
 who enters thereon, and dies seized without issue ; still B shall 
 not be heir to this estate, because he is only of the half blood to 
 
OF TITLE BY DESCENT. 397 
 
 A, the person last seized : but it shall descend to a sister (if any; 
 of the whole blood to A : for in such cases the maxim is, that the 
 iit\z\VL or possessio fratris facit sororem esse hceredem. Yet, had 
 A died without entry, then B might have inherited; not as 
 •heir to A his half-brother, but as heir to their common [*228 
 father, who was the person last actually seized. 
 
 VII. The seventh and last rule or canon is, that in collateral 
 inheritances the male stocks shall be preferred to the female 
 (that is, kindred derived from the blood of the male ancestors, 
 however remote, shall be admitted before those from the blood 
 of the female, however near), — unless where the lands have, in 
 fact, descended from a female." 
 
 Thus the relations on the father's side are admitted in infini- 
 tum, before those on the mother's side are admitted at all ; and 
 the relations of the father's father, before those of the father's 
 mother ; and so on. And in this the English law is not singular, 
 but warranted by the examples of the Hebrew and Athenian 
 laws, as stated by Selden and Petit : though among the Greeks 
 in the time of Hesiod, when a man died without wife or children, 
 all his kindred (without any *distinction) divided his es- [*235 
 tate among them. It is likewise warranted by the example of 
 ♦he Roman laws ; wherein the agnati, or relations by the father, 
 were preferred to the cognati, or relations by the mother, till the 
 edict of the Emperor Justinian abolished all distinction between 
 them. It is also conformable to the customary law of Normandy, 
 which indeed in most respects agrees with our English law of 
 inheritance. 
 
 However, I am inclined to think, that this rule of our law 
 does not owe its immediate original to any view of conformity to 
 those wliich I have just now mentioned ; but was established in 
 order to effectuate and carry into execution the fifth rule, or 
 principal canon of collateral inheritance, before laid down ; that 
 every heir must be of the blood of the first purchaser. For, when 
 such first purchaser was not easily to be discovered after a long 
 course of descents, the lawyers not only endeavored to investi- 
 gate him by taking the next relation of the whole blood to the 
 person last in possession, but also, considering that a preference 
 
 " This general rule still prevails in England, though somewhat modified in detail, but not in this 
 country. In some States, however, lands descended from a maternal ancestor go to kindred in the 
 maternal line, and paternal inheritances to paternal kindred. 
 
398 OF TITLE BY DESCENT. 
 
 had been given to males (by virtue of the second canon) through 
 the whole course of lineal descent from the first purchaser to the 
 present time, they judged it more likely that the lands should 
 have descended to the last tenant from his male than from his 
 female ancestors ; from the father (for instance) rather than from 
 the mother ; from the father s father rather than from the fath- 
 er's mother : and therefore they hunted back the inheritance (il 
 I may be allowed the expression) through the male line ; and 
 gave it to the next relations on the side of the father, the father's 
 father, and so upwards, imagining with reason that this was the 
 most probable way of continuing it in the line of the first pur- 
 chaser. A conduct much more rational than the preference of 
 the agnati, by the Roman laws : which, as they gave no advan- 
 tage to the males in the first instance or direct lineal succession, 
 had no reason for preferring them in the transverse collateral 
 one : upon which account this preference was very wisely abol- 
 ished by Justinian. 
 
 *236] * That this was the true foundation of the preference 
 of the agnati or male stocks, in our law, will farther appear, if 
 we consider, that, whenever the lands have notoriously descend- 
 ed to a man from his mother's side, this rule is totally reversed; 
 and no relation of his by the father's side, as such, can ever be 
 admitted to them ; because he cannot possibly be of the blood of 
 the first purchaser. And so, e converse, if the lands descended 
 from the father's side, no relation of the mother, as such, shall 
 ever inherit. So also, if they in fact descended to John Stiles 
 from his father's mother, Cecilia Kempe ; here not only the 
 blood of Lucy Baker, his mother, but also of George Stiles, his 
 father's father, is perpetually excluded. And, in like manner, if 
 they be known to have descended from Frances Holland, the 
 mother of Cecilia Kempe, the line not only of Lucy Baker, and 
 of George Stiles, but also of Luke Kempe, the father of Cecilia, 
 is excluded. Whereas, when the side from which they descend- 
 ed is forgotten, or never known (as in the case of an estate newly 
 purchased to be holden utfeudum antiqtmm), here the right of in- 
 heritance first runs up all the father's side, with a preference to 
 the male stocks in every instance ; and, if it finds no heirs there, 
 it then, and then only, resorts to the mother's side ; leaving no 
 place untried, in order to find heirs that may by possibility be 
 derived from the original purchaser. The greatest probability of 
 
OF TITLE BY ESCHEAT. 399 
 
 finding such was atrong tljose descended from the male ancestors ; 
 but, upon failure of issue there, they may possibly be found 
 among those derivRd from the females. 
 
 This I take to be the true reason of the constant preference 
 of the agnatic succession, or issue derived from the male ances- 
 tors, through all the stages of collateral inheritance ; as the 
 ability for personal service was the reason for preferring the 
 males at first in the direct lineal succession. We see clearly, that 
 if males had been perpetually admitted, in utter exclusion of 
 females, the tracing the inheritance back through the male line 
 of ancestors must at last have inevitably brought us up to the 
 first purchaser : but as males have not been ^perpetually [*237 
 admitted, but ov^y generally preferred ; as females have not been 
 utterly excluded, but only generally postponed to males; the trac- 
 ing the inheritance up through the male stocks will not give us 
 absolute demonstration, but only a strong probability, of arriving 
 at the first purchaser ; which, joined with the other urobability, 
 of the wholeness or entirety of blood, will fall little short of a 
 certainty." 
 
 CHAPTER XV. 
 
 [bL. COMM. — BOOK II. CH. XV.] 
 
 Of Title by Purchase, 
 
 and 
 
 I. By Escheat. 
 
 VvRCKASE, perguisitio, taken in its largest and most extensive 
 sense, is thus defined by Littleton ; the possession of lands and 
 tenements, which a man hath by his own act or agreement, and 
 not by descent from any of his ancestors or kindred. In this 
 
 " The law of descent in the United States is wholly statutory. The leading 
 general principles, which are substantially the same in the various States, have 
 been stated in the previous notes ; but for special details the statutes must be 
 particularly consulted. (See Washburn on Real Prop. III. 1-50, 5th ed.) 
 
40O OF TITLE B Y ESCHEA T. 
 
 sense it is contradistitiguished from acquisition by right of blood 
 End includes every other method of coming to an estate, but 
 merely that by inheritance : wherein the title is vested in a 
 person, not by his own act or agreement, but by the single 
 operation of law. 
 
 Purchase, indeed, in its vulgar and confined acceptation, is 
 applied only to such acquisitions of land, as are obtained by way 
 of bargain and sale for money, or some other valuable considera- ' 
 tion. But this falls far short of the legal idea of purchase : for,' 
 if I give land freely to another, he is in the eye of the law a pur- 
 chaser, and falls within Littleton's definition, for he comes to 
 the estate by his own agreement ; that is, he consents to the 
 gift. A man who has his father's estate settled upon him in tail, 
 before he was born, is also a purchaser ; for he takes quite an- 
 other estate than the law of descents would have given him. 
 Nay, even if the ancestor devises his estate to his heir at law by 
 will, with other limitations, or in any other shape than the course 
 of descents would direct, such heir shall take by purchase. But 
 if a man, seized in fee, devises his whole estate to his heir-at-law, 
 so that the heir takes neither a greater nor a less estate by the 
 *242] *devise than he would have done without it, he shall be 
 adjudged to take by descent, even though it be charged with 
 incumbrances ; this being for the benefit of creditors, and others, 
 who have demands on the estate of the ancestor. If a remainder 
 be limited to the heirs of Sempronius, here Semprouius himself 
 takes nothing ; but if he dies during the continuance of the par- 
 ticular estate, his heirs shall take as purchasers. But if an estate 
 be made to A for life, remainder to his right heirs in fee, his 
 heirs shall take by descent * : for it is an ancient rule of law, 
 that whenever the ancestor takes an estate for life, the heir can- 
 not by the same conveyance take an estate in fee by purclmse, 
 but only by descent. And if A dies, before entry, still his heirs 
 shall take by descent, and not by purchase : for where the heir 
 takes anything that might have vested in the ancestor, he takes 
 by way of descent. The ancestor, during his life, beareth in 
 himself all his heirs ; and therefore, when once he is or might 
 have been seized of the lands, the inheritance so limited to his 
 
 ^ This is the doctrine known in law as " the rule in Shelley's Case.'' It has biien 
 aoohshed by statute in some of the United States. (See 23 Wall. 486.) 
 
OF TITLE B V ESCHEA T. 401 
 
 heirs vests in the ancestor himself : and the word " heirs " in 
 this case is not esteemed a word oi purchase, but a word of limi- 
 tation, enuring so as to increase the estate of the ancestor from 
 a tenancy for life to a fee-simple. And, had it been otherwise, 
 had the heir (who is uncertain till the death of the ancestor) been 
 allowed to take as a purchaser originally nominated in the deed, 
 as must have been the case if the remainder had been expressly 
 limited to Matthew or Thomas by name ; then, in the times oi 
 strict feudal tenure the lord would have been defrauded by such 
 a limitation of the fruits of his seigniory arising from a descent 
 to the heir. ^ 
 
 What we call purchase, perquisitio, the feudists called con- 
 quest, conqucestus, or conquisitio ; both denoting any means of 
 acquiring an estate out of the common course of inheritance. 
 And this is still the proper phrase in the law of Scotland : as it 
 was among the Norman jurists, who styled *the first [*243 
 purchaser (that is, he who brought the estate into the family 
 who at present owns it) the conqueror or conquereur. Which 
 seems to be all that was meant by the appellation which was 
 given to William the Norman, when his manner of ascending 
 the throne of England was, in his own and his successors' char- 
 ters, and by the historians of the times, entitled conqucEstus, and 
 himself conquestor or conquisitor ; signifying that he was the 
 first of his family who acquired the crown of England, and from 
 whom therefore all future claims by descent must be derived : 
 though now, from our disuse of the feudal sense of the word, to- 
 gether with the reflection on his forcible method of acquisition, 
 we are apt to annex the idea of victory to this name of conquest 
 or conquisition : a title which, however just with regard to the 
 '^rown, the conqueror never pretended with regard to the realm 
 of England ; nor, in fact, ever had. 
 
 The difference, in effect, between the acquisition of an 
 estate by descent and by purchase, consists principally in these 
 two points : I. That by purchase the estate acquires a new*in- 
 heritable quality, and is descendible to the owner's blood in gen- 
 eral, and not the blood only of some particular ancestor. For. 
 when a man takes an estate by purchase, he takes it not ut feudum 
 patemum or matemum, which would descend only to the heirs 
 by the father's or the mother's side : but he takes it ut feudum 
 antiquum, as a feud of indefinite antiquity, whereby it becomes 
 26 
 
402 OF TITLE B Y ESCHEA T. 
 
 inheritable to his heirs general, first of the paternal, and then ol 
 the maternal line. 2. An estate taken by purchase will not 
 make the heir answerable for the acts of the ancestor, as an es- 
 tate by descent will. For if the ancestor, by any deed, obliga- 
 tion, covenant, or the like, bindeth himself and his heirs, and 
 dieth ; this deed, obligation, or covenant, shall be binding upon 
 the heir, so far forth only as he (or any other in trust for him) 
 had any estate of inheritance vested in him by descent 
 *244] *f rom, (or any estate per auter vie coming to him by 
 special occupancy, as heir to,) that ancestor, sufficient to answer 
 the charge ; whether he remains in possession, or hath alienated 
 it before action brought : which sufficient estate is in the law 
 called assets : from the French word assez, enough. Therefore 
 if a man covenants, for himself and his heirs, to keep my house 
 in repair, I can then (and then only) compel his heir to perform 
 this covenant, when he has an estate sufficient for this purpose, 
 or assets, by descent from the covenantor : for though the cove- 
 nant descends to the heir, whether he inherits any estate or no. 
 It lies dormant, and is not compulsory, until he has assets i by 
 descent. 
 
 This is the legal signification of the word perquisitio, or pur- 
 chase ; and in this sense it includes the five following methods 
 of acquiring a title to estates : i. Escheat. 2. Occupancy. 
 3. Prescription, 4. Forfeiture. 5. Alienation. Of all these in 
 their onder. 
 
 I. Escheat, we may remember, was one of the fruits and con- 
 sequences of feudal tenure. The word itself is originally French 
 or Norman, in which language it signifies chance or accident ; 
 and with us it denotes an obstruction of the course of descent, 
 and a consequent determination of the tenure, by some unforeseen 
 contingency : in which case the land naturally results back, by 
 a kind of reversion, to the original grantor or lord of the fee. 
 
 Escheat therefore being a title frequently vested in the lord 
 by^mheritance, as being the fruit of a signiory to which he was 
 entitled by descent (for which reason the lands escheated shall 
 attend the signiory, and be inheritable by such only of his heirs 
 as are capable of inheriting the other), it may seem in such cases 
 to fall more properly under the former general head of acquiring 
 title to estates, viz. : by descent (being vested in him by act of 
 *245] I1W, and not by his own act *or agreement,) than under 
 
OF TITLE BY ESCHEAT. 403 
 
 the present, by purchase. But it must be remembe ed that, in 
 order to complete this title by escheat, it is necessary that the 
 lord perform an act of his own, by entering on the lauds and 
 tenements so escheated, or suing out a writ of escheat ;' on fail- 
 ure of which, or by doing any act that amounts to an implied 
 waiver of his right, as by accepting homage or rent of a stranger 
 who usurps the possession, his title by escheat is barred. It is 
 therefore in some respect a title acquired by his own act, as well 
 as by act of law. Indeed this may also be said of descents them- 
 selves, in which an entry or other seizin is required, in order to 
 make a complete title r and therefore this distribution of titles 
 by our legal writers, into those by descent and by purchase, seems 
 in this respect rather inaccurate, and not marked with sufficient 
 precision : for, as escheats must follow the nature of the signiory 
 to which they belong, they may vest by either purchase or de- 
 scent, according as the signiory is vested. And, though Sir Ed- 
 ward Coke considers the lord by escheat as in some respects the 
 assignee of the last tenant, and therefore taking by purchase ; 
 yet, on the other hand, the lord is more frequently considered as 
 being ultimus hceres, and therefore taking by descent in a kind 
 of caducary succession. 
 
 The law of escheats is founded upon this single principle, 
 that the blood of the person last seized in fee-simple is, by some 
 means or other, utterly extinct and gone ; and, since none can 
 inherit his estate but such as are of his blood and consanguinity, 
 it follows, as a regular consequence, that when such blood is ex- 
 tinct, the inheritance itself must fail : the land must become 
 what the feudal writers denominate /«<d?M?« apertum ; and must 
 result back again to the lord of the fee, by whom, or by those 
 whose estate he hath, it was given. 
 
 Escheats are frequently divided into those propter defectum 
 sanguinis, and those propter delictum tenentis : the one sort, if 
 the tenant dies without heirs ; the other, if his blood be attainted. 
 * But both these species may well be *comprehended under [*246 
 the first denomination only ; for he that is attainted suffers an 
 extinction of his blood, as well as he that dies without relations. 
 The inheritable quality is expunged in one instance, and expires 
 
 ' The writ of escheat is now abolished. The remedy is by entry or ao 
 (ion of ejectment, or, in case of the crown, by commission of escheat amf 
 "office found." 
 
404 OF TITLE BY ESCHEAT. 
 
 in the other ; or, as the doctrine of escheats is very fully ex 
 pressed in Fleta, " dominus capitalis feodi loco hceredis habetur^ 
 quoties per defectum v el delictum extinguitur sanguis tenentis." 
 
 Escheats therefore arising merely upon the deficiency of the 
 blood, whereby the descent is impeded, their doctrine will be bet- 
 ter illustrated by considering the several cases wherein hereditary 
 blood may be deficient, than by any other method whatsoever. 
 
 I, 2, 3. The first three cases, wherein inheritable blood is 
 wanting, may be collected from the rules of descent laid down 
 and explained in the preceding chapter, and therefore will need 
 very little illustration or comment. First, when the tenant dies 
 without any relations on the part of any of his ancestors : secondly, 
 when he dies without any relations on the part of those ances- 
 tors from whom his estate descended : thirdly, when he dies 
 without any relations of the whole blood. In two of these cases 
 the blood of the first purchaser is certainly, in the other it is 
 probably, at an end ; and therefore in all of them the law directs, 
 that the land shall escheat to the lord of the fee ; for the lord 
 would be manifestly prejudiced, if, contrary to the inherent con- 
 dition tacitly annexed to all feuds, any person should be suffered 
 to succeed to the lands, who is not of the blood of the first feu- 
 datory, to whom for his personal merit the estate is supposed to 
 have been granted.' 
 
 4. A monster, which hath not the shape of mankind, but in 
 any part evidently bears the resemblance of the brute creation, 
 hath no inheritable blood, and cannot be heir to any land, albeit 
 it be brought forth in marriage : but, although it hath deformity 
 *247] in any part of its body, yet if it *hath human shape it 
 may be heir. This is a very ancient rule in the law of England; 
 and its reason is too obvious, and too shocking to bear a minute 
 discussion. The Roman law agrees with our own in excluding 
 such births from successions : yet accounts them, however, chil- 
 dren in some respects, where the parents, or at least the father, 
 could reap any advantage thereby : (as the jus trium liberorum, 
 and the like) esteeming them the misfortune, rather than tlie 
 fault, of that parent. But our law will not admit a birth of this 
 
 » The modifications of the former rules of descent, as stated in the pfC' 
 ceding chapter, also affect the rules of escheat mentioned in this paragraph. 
 An escheat may now be said to take place when there is neither an heir *« 
 Ae last purchaser of the lands nor to the person last entitled. 
 
OF TITLE B Y ESCHEA T. 405 
 
 kind to be such an issue, as shall entitle. the husband to be ten- 
 ant by the curtesy, because it is not capable of inheriting. And 
 therefore, if there appears no other heir than such a prodigious 
 birth, the land shall escheat to the lord. 
 
 5. Bastards are incapable of being heirs. Bastards, by our 
 law, are such children as are not born either in lawful wedlock, 
 or within a competent time after its determination. Such are 
 held to be nullius filii, the sons of nobody ; for the maxim of 
 law is, qui ex damnato coitu nascuntur, inter liberos non compu- 
 tantur. Being thus the sons of nobody, they have no blood in 
 them, at least no inhqfitable blood: consequently, none of tht 
 blood of the first purchaser : and therefore, if there be no other 
 claimant than such illegitimate children, the land shall escheat to 
 the lord. The civil law differs from ours in this point, and allows 
 a bastard to succeed to an inheritance, if after its birth the mother 
 was married to the father : and also, if the father had no lawful 
 wife or child, then, even if the concubine was never married to 
 the father, yet she and her bastard son were admitted each to 
 one-twelfth of the inheritance ; and a bastard was likewise 
 •capable of succeeding to the whole of his mother's es- [*248 
 tate, although she was never married; the mother being suf- 
 ficiently certain, though the father is not. But our law, in favor 
 of marriage, is much less indulgent to bastards. « * * * 
 
 *As bastards cannot be heirs themselves, so neither [*249 
 tan they have any heirs but those of their own bodies. For, as 
 all collateral kindred consists in being derived from the same 
 common ancestor, and as a bastard has no legal ancestors, he can 
 have no collateral kindred ; and, consequently, can have no legal 
 heirs, but such as claim by a lineal descent from himself. And 
 tlierefore if a bastard purchases land and dies seized thereof 
 without issue, and intestate, the land shall escheat to the lord 
 of the fee.'* 
 
 6. Aliens, also, are incapable of taking by descent, or inher- 
 iting : for they are not allowed to have any inheritable blood in 
 
 * As already mentioned, the common-law rules in regard to inheritance by and 
 from illegitimate children have been changed by statute in a number of the United 
 States, especially as applying to mothers and their bastard children, who are now 
 not uncommonly allowed to inherit from each other. (See ante, p. 174, n. 16.) 
 
4o6 OF TITLE BY ESCHEAT. 
 
 them;" rather indeed upon a. principle of national or civil po.icy, 
 than upon reasons strictly feudal. Though, if lands had been 
 suffered to fall into their hands who owe no allegiance to the 
 crown of England, the design of introducing our feuds, the 
 defence of the kingdom, would have been defeated. Wherefore, 
 if a man leaves no other relations but aliens, his land shall 
 escheat to the lord. 
 
 As aliens cannot inherit, so far they are on a level with 
 bastards ; but as they are also disabled to hold by purchase, they 
 are under still greater disabilities. And, as they can neither 
 hold by pui chase, nor by inheritance, it is almost superfluous 
 to say that they can have no heirs, since they can have nothing 
 for an heir to inherit ; but so it is expressly holden, because they 
 have not in them any inheritable blood. 
 
 And farther, if an alien be made a denizen by the king's 
 letters-patent and then purchases lands (which the law allows 
 such a one to do), his son, born before his denization, shall not 
 (by the common law) inherit those lands ; but a son born after- 
 wards may, even though his elder brother be living ; for the father, 
 before the denization, had no inheritable blood to communicate 
 *250] to his eldest son ; but by denization it acquires *a hered- 
 itary quality, which will be transmitted to his subsequent 
 posterity. Yet if he had been naturalized by act of parliament, 
 such eldest son might then have inherited ; for that cancels all 
 defects, and is allowed to have a retrospective energy, which sim- 
 ple denization has not.° 
 
 Sir Edward Coke also holds, that if an alien cometh into 
 England, and there hath issue two sons, who are thereby natural- 
 born subjects ; and one of them purchases land, and dies ; yet 
 neither of these brethren can be heir to the other. For the 
 commune vinadum, or common stock of their consanguinity, is 
 the father ; and as he had no inheritable blood in him, he could 
 communicate none to his sons ; and, when the sons can by no 
 possibility be heirs to the father, the one of th>:m shall not be 
 heir to the other. And this opinion of his seems founded upon 
 solid principles of the ancient law : not only from the rule be- 
 
 * The changes in the law upon this subject have been already stated 
 (See a«/^, p. 119, note 2.) 
 
 * See in regard to naturalization, ante, p. 122, note 4. 
 
OF TITLE B Y ESCHEA T. 407 
 
 fore cited, that cestui, que doit inheriter al pere, doit inheritef 
 alfils ; but also because we have seen that the only feudal foun- 
 dation, upon which newly purchased land can possibly descend 
 to a brother, is the supposition and fiction of law, that it descend- 
 ed from some one of his ancestors ; but in this case, as the 
 intermediate ancestor was an alien, from whom it could in 
 no possibility descend, this should destroy the supposition, 
 and impede the descent, and the land should be inherited ut 
 feudum striate novum ; this is, by none but the lineal descendants 
 of the purchasing brother ; and on failure of them, should escheat 
 to the lord of the fee. , But this opinion hath been since over- 
 ruled ; and it is now held for law, that the sons of an alien born 
 >iere, may inherit to each other ; the descent from one brother 
 to another being an immediate descent.' And reasonably enough 
 upon the whole ; for, as ( in common purchases) the whole of 
 the supposed descent from indefinite ancestors is but fictitious, 
 the law may as well suppose the requisite ancestor as suppose 
 the requisite descent. 
 
 * It is also enacted, by the statute 1 1 & 1 2 Wm. 1 1 1., ch. 6, [*251 
 that all persons, being natural-born subjects of the king, may 
 inherit and make their titles by descent from any of their ances- 
 tors, lineal or collateral ; although their father or mother, or other 
 ancestor, by, from, through, or under whom they derive their 
 pedigrees, were born out of the king's allegiance. But incon- 
 veniences were afterwards apprehended, in case persons should 
 thereby gain a future capacity to inherit, who did not exist at 
 the death of the person last seized. As, if Francis the elder 
 brother of John Stiles be an alien, and Oliver the younger be a 
 natural-born subject, upon John's death without issue his lands 
 will descend to Oliver the younger brother : now, if afterwards 
 Francis has a child born in England, it was feared that, under 
 the statute of King William, this new-born child might defeat 
 the estate of his uncle Oliver. Wherefore it is provided, by the 
 statute 25 Geo. II., ch. 39, that no right of inheritance shall accrue 
 by virtue of the former statute to any persons whatsoever, unless 
 they are in being and capable to take as heirs at the death of 
 the j)erson last seized : — with an exception however to the case, 
 where lands shall des'cend to the daughter of an alien ; which 
 
 ' See ante, p. 395 note 9. 
 
4o8 OF TITLE BY ESCHEAT. 
 
 descent shall be divested in favor of an after-brother, or the 
 inheritance shall be divided with an after-born sister or sisters, 
 according to the usual rule of descents by the common law. 
 
 7. By attainder also, for treason or other felony, the blood of 
 the person attainted is so corrupted, as to be rendered no longer 
 inheritable. 
 
 Great care must be taken to distinguish between forfeituie of 
 lands to the king, and this species of escheat to the lord ; which, 
 by reason of their similitude in some circumstances, and because 
 the crown is very frequently the immediate lord of the fee, and 
 therefore entitled to both, have been often confounded together. 
 Forfeiture of lands, and of whatever else the offender possessed, 
 was the doctrine of the old Saxon law, as a part of punishment 
 •252] for the offence ; *and does not at all relate to the feudal 
 system, nor is the consequence of any signiory or lordship para- 
 mount : but, being a prerogative vested in the crown, was neither 
 superseded nor diminished by the introduction of the Norman 
 tenures ; a fruit and consequence of which, escheat must un- 
 doubtedly be reckoned. Escheat therefore operates in subordi- 
 nation to this more ancient and superior law of forfeiture.' 
 
 The doctrine of escheat upon attainder, taken singly, is this : 
 that the blood of the tenant, by the commission of any felony 
 (under which denomination all treasons were formerly comprised), 
 is corrupted and stained, and the original donation of the feud is 
 thereby determined, it being always granted to the vassal on the 
 implied condition of dum bene se gesserit. Upon the thorough 
 demonstration of which guilt, by legal attainder, the feudal 
 covenant and mutual bond of fealty are held to be broken, the 
 estate instantly falls back from the offender to the lord of the fee, 
 and the inheritable quality of his blood is extinguished and 
 
 ' By statute 33 & 34 Vict., ch. 23 [1870], it is provided that no conviction, or 
 judgment for treason or felony, shall cause any attainder or corruption of 
 blood or ^'o.-y forfeiture or escheat, except that the law of forfeiture, in cases 
 of outlawry, is not changed. The rules of escheat, in cases of attainder, 
 are therefore now abrogated. 
 
 In the United States it is provided, by the Federal Constitution, that 
 " Congress shall have power to declare the punishment of treason ; but nj 
 attainder of treason shall work corruption of blood, or forfeiture, except dur- 
 ing the life of the person attainted." (Art. 3, § 3 ; see pod, page 1036, 
 note I.) 
 
OF TITLE BY ESCHEAT. 409 
 
 blotted out forever. In this situation the law of feudjd escheat 
 was brought into England at the Conquest ; and in general 
 superadded to the ancient law of forfeiture; In consequence of 
 which corruption and extinction of hereditary blood, the land of 
 all felons would immediately revest in the lord, but that the 
 superior law of forfeiture intervenes, and intercepts it in its 
 passage : in case of treason, forever ; in case of other felony, for 
 only a year and a day ; after which time it goes to the lord in a 
 regular course of escheat, as it would have done to the heir of 
 the felon, in case the feudal tenures had never been introduced. 
 And that this is the true operation and genuine history of es- 
 cheats will most evidently appear from this incident to gavelkind 
 lands (which seems to be the old Saxon tenure), that they are in 
 no case subject to escheat for felony, though they are liable to 
 forfeiture for treason. 
 
 *As a consequence of this doctrine of escheat, all lands [*253 
 of inheritance immediately revesting in the lord, the wife of the 
 felon was liable to lose her dower, till the statute i Edw. VI., ch. 
 12, enacted, that albeit any person be attainted of misprision 
 of treason, murder, or felony, yet his wife shall enjoy her dowei. 
 But she has not this indulgence where the ancient law of forfeit- 
 ure operates, for it is expressly provided by the statute 5 & 6 Edw. 
 VI., ch. 1 1, that the wife of one attaint of high treason shall not be 
 endowed at all. 
 
 Hitherto we have only spoken of estates vested in the offender 
 at the time of his offence or attainder. And here the law of for- 
 feiture stops ; but the law of escheat pursues the matter still 
 farther. For the blood of the tenant being utterly corrupted 
 and extinguished, it follows not only that all that he now has 
 shall escheat from him, but also that he shall be incapable of in- 
 heriting any thing for the future. This may farther illustrate 
 the distinction between forfeiture and escheat. If therefore a 
 father be seized in fee, and the son commits treason and is attainted 
 and then the father dies : here the lands shall escheat to the 
 lord ; because the son, by the corruption of his bl.iod, is incapa- 
 ble to be heir, and there can be no other heir during his life ; 
 but nothing shall be forfeited to the king, for the son never had 
 any interest in the lands to forfeit. In this case the escheat op- 
 crates, and not the forfeiture ; but in the following instance the 
 
4IO OF TITLE BY ESCHEAT. 
 
 forfeiture works, and not the escheat. As where a new felony 
 is created by act of parliament and it is provided (as is frequently 
 the case) that it shall not extend to corruption of blood ; here 
 the lands of the felon shall not escheat to the lord, but yet the 
 profits of them shall be forfeited to the king for a year and a day, 
 and so long after as the offender lives. 
 
 There is yet a farther consequence of the corruption and 
 extinction of hereditary blood, which is this : that the person 
 *254] *attainted shall not only be incapable himself of inheriting, 
 or transmitting his own property by heirship, but shall also 
 obstruct the descent of lands or tenements to his posterity, in 
 all cases where they are obliged to derive their title through 
 him from any remoter ancestor. The channel which conveyed 
 the hereditary blood from his ancestors to him, is not only ex- 
 hausted for the present, but totally dammed up and rendered im- 
 pervious for the future. This is a refinement upon the ancient 
 law of feuds, which allowed that the grandson might be heir to 
 his grandfather, though the son in the intermediate generation 
 was guilty of felony. But, by the law of England, a man's blood is 
 so universally corrupted by attainder, that his sons can neither 
 inherit to him nor to any other ancestors, at least on the part of 
 their attainted father. 
 
 This corruption of blood cannot be absolutely removed but 
 by authority of parliament. The king may excuse the public 
 punishment of an offender ; but cannot abolish the private right, 
 which has accrued or may accrue to individuals as a consequence 
 of the criminal's attainder. He may remit a forfeiture^ in which 
 the interest of the crown is alone concerned ; but he cannot wipe 
 away the corruption of blood : for therein a third person hath an 
 interest, the lord who claims by escheat. If therefore a man 
 hath a son, and is attainted, and afterwards pardoned by the 
 king ; this son can never inherit to his father, or father's ances- 
 tors : because his paternal blood, being once thoroughly cor- 
 rupted by his father's attainder, must continue so : but if the son 
 had been born after the pardon, he might inherit ; because by 
 the pardon the father is made a new man, and m ly convey r e« 
 inheritable blood to his after-born children. 
 
 Herein there is however a difference between aliens and per 
 Bons attainted. Of aliens, who could never by any possibility be 
 *255] heirs, the law takes no notice : and therefore we have *seen, 
 
OF TITLE BY ESCHEAT. 411 
 
 that an alien elder brother shall not impede the descent to a nat- 
 ural-born younger brother. But in attainders it is otherwise : 
 for if a man hath issue a son, and is attainted, and afterwards 
 pardoned, and then hath issue a second son, and dies : here the 
 corruption of the blood is not removed from the eldest, and 
 therefore he cannot be heir ; neither can the youngest be heir, 
 for he hath an elder brother living, of whom the law takes no- 
 tice, as he once had a possibility of being heir : and therefore 
 the younger brother shall not inherit, but the land shall escheat 
 to the lord : though had the elder died without issue in the life 
 of the father, the younger son born after the pardon might well 
 have inherited, for he hath no corruption of blood. So if a man 
 hath issue two sons, and the elder in the lifetime of the father 
 hath issue, and then is attainted and executed, and afterwards 
 the father dies, the lands of the father shall not descend to the 
 younger son : for the issue of the elder, which had once a possi- 
 bility to inherit, shall impede the descent to the younger, and 
 .'he land shall escheat to the lord. Sir Edward Coke in this case 
 allows, that if the ancestor be attainted, his sons born before the 
 attainder may be heirs to each other; and distinguishes it from 
 the case of the sons of an alien, because in this case the blood 
 was inheritable when imparted to them from the father ; but he 
 makes a doubt (upon the principles before mentioned, which are 
 now over-ruled) whether sons, born after the attainder, can in- 
 herit to each other, for they never had any inheritable blood in 
 them. 
 
 Upon the whole it appears, that a person attainted is neither 
 allowed to retain his former estate, nof to inherit any future one, 
 nor to transmit any inheritance to his issue, either immediately 
 from himself, or mediately through himself from any remoter an- 
 cestor ; for his inheritable blood, which is necessary either to 
 hold, to take, or to transmit any feudal property, is blotted out, 
 corrupted, and extinguished for ever : the consequence of which 
 is, that estates thus impeded in their descent, result back and 
 escheat to the lord. 
 
 * This corruption of blood, thus arising from feudal [*256 
 principles, but perhaps extended farther than even those princi- 
 ples will warrant, has been long looked upon as a peculiar hard- 
 ship: because the oppressive part of the feudal tenures being 
 now in general abolished, it seems unreasonable to reserve one 
 
412 OF TITLE B Y ESCHEA 7 . 
 
 of their most inequitable consequences ; namely, that the chil- 
 dren should not only be reduced to present poverty (which, how- 
 ever severe, is sufficiently justified upon reasons of public policy), 
 but also be laid under future difficulties of inheritance, on ac- 
 count of the guilt of their ancestors. And therefore in most (if 
 not all) of the new felonies created by parliament since the reign 
 of Henry the Eighth, it is declared, that they shall not extend 
 tc any corruption of blood : and by the statute 7 Ann. ch. 21 
 (the operation of which is postponed by the statute 17 Geo. II., 
 ch. 39), it is enacted, that after the death of the late Pretender, 
 and his sons, no attainder for treason shall extend to the disin- 
 heriting any heir, nor the prejudice of any person, other than the 
 offender himself : which provisions have indeed carried the 
 remedy farther than was required by the hardship above com- 
 plained of ; which is only the future obstruction of descents, where 
 the pedigree happens to be deduced through the blood of an at- 
 tainted ancestor. 
 
 Before I conclude this head of escheat, I must mention one 
 singular instance in which lands held in fee-simple are not liable 
 to escheat to the lord, even when their owner is no more, and 
 hath left no heirs to inherit them. And this is the case of a cor- 
 poration ; for if that comes by any accident to be dissolved, the 
 donor or his heirs shall have the land again in reversion, and not 
 the lord by escheat ; which is perhaps the only instance where a 
 reversion can be expectant on a grant in fee-simple absolute. 
 But the law, we are told, doth tacitly annex a condition to every 
 such gift or grant, that if the corporation h^ dissolved, the donor 
 or grantor shall re-enter ' for the cause of the gift or grant 
 *257] *faileth.'' This is indeed founded upon the self-same 
 principle as the law of escheat ; the heirs of the donor being only 
 substituted instead of the chief lord of the fee : which was for- 
 merly very frequently the case in subinfeudations, or alienations 
 of lands by a vassal to be holden as of himself, till that practice 
 was restrained by the statute of quia emptores, 18 Edw. I., st. i, 
 to which this very singular instance still in some degree remains 
 an exception.-^" * * * ♦ 
 
 ° See ante, p. 204, note. 15. 
 
 1" In the United States, the law of escheat operates to transfer the title H 
 the property to the State in which it is situated. The principal causes of 
 escheat are the alienage of the owner, or the failure of heirs to inherit *« 
 
OF TITLE BY OCCUPANCY. 413 
 
 These are the several deficiencies of hereditary blood, recog- 
 nized by the law of England ; which, so often as they happen, 
 occasion lands to escheat to the original proprietary or lord. 
 
 CHAPTER XVI. 
 
 [bL. COMM. — BOOK II. CH. XVI ] 
 II. Of Title by Occupancy. 
 
 Occupancy is the taking possession of those things which 
 before belonged to nobody. This, as we have seen, is the true 
 ground and foundation of all property, or of holding those things 
 in severalty, which by the law of nature, unqualified by that of 
 society, were common to all mankind. But when once it was 
 agreed that every thing capable of ownership should have an 
 owner, natural reason suggested, that he who could first declare 
 his intention of appropriating any thing to his own use, and, in 
 consequence of such intention, actually took it into possession, 
 should thereby gain the absolute property of it ; according to 
 that rule of the law of nations, recognized by the laws of Rome, 
 qtwd nullius est, id ratione naturali occupanti conceditur. 
 
 This right of occupancy, so far as it concerns real property 
 (for of personal chattels I am not in this place to speak), hath 
 been confined by the laws of England within a very narrow com- 
 pass ; and was extended only to a single instance : namely, where 
 a man was tenant /ar aiiter vie, or had an estate granted to him- 
 self only (without mentioning his heirs) for the life of another 
 man, and died during the life of cestui que vie, or him by whose 
 life it was b olden ; in this case he that could first enter on the 
 land might lawfully retain the possession, so long as cestui que vie 
 lived, by right of occupancy. 
 
 property after his death. But, as in many States, the disability ot alienage 
 has been removed, escheat chiefly occurs for want of heirs. It is the 
 general rule that a proceeding known as an " inquest of office," or " office 
 found," must be instituted in behalf of the State, as at common-law, in order 
 to vest the title in the State. But this is not true in all the States. There 
 are diverse sta'iitory regulations upon the subject of escheat, in the variom 
 States. 
 
414 OF TITLE BY OCCUPANCY. 
 
 •259] * This seems to have been recurring to first principles, 
 and calling in the law of nature to ascertain the property of the 
 land, when left without a. legal owner. For it did not revert to 
 the grantor, though it formerly was supposed so to do ; for he 
 had parted with all his interest, so long as cestui que vie lived : 
 it did not escheat to the lord of the fee, for all escheats must be 
 of the absolute entire fee, and not of any particular estate carved 
 out of it ; much less of so minute a remnant as this : it did not 
 belong to the grantee ; for he was dead : it did not descend to 
 his heirs ; for there were no words of inheritance in the grant : 
 nor could it vest in his executors ; for no executors could suc- 
 ceed to a freehold. Belonging therefore to nobody, like the 
 hcereditas jacens of the Romans, the law left it open to be seized 
 and appropriated by the first person that could enter upon it, 
 during the life of cestui que vie, under the name of an occupant. 
 But there was no right of occupancy allowed, where the king 
 had the reversion of the lands : for the reversioner hath an equal 
 right with any other man to enter upon the vacant possession, 
 and where the king's title and a subject's concur, the king's shall 
 be always preferred : against the king therefore there could be 
 no prior occupant, because nullum tempus occurrit regi. And, 
 even in the case of a subject, had the estate pur auter vie been 
 granted to a man and his heirs during the life of cestui que vie, 
 there the heir might, and still may, enter and hold possession, 
 and is called in law a special occupant : as having a special exclu- 
 sive right, by the terms of the original grant, to enter upon and 
 occupy this hcereditas jacens, during the residue of the estate 
 granted : though some have thought him so called with no very 
 great propriety ; and that such estate is rather a descendible 
 freehold. But the title of common occupancy is now reduced 
 almost to nothing by two statutes : the one 29 Car. II., ch. 3, 
 which enacts (according to the ancient rule of law) that where 
 there is no special occupant, in whom the estate may vest, the 
 *260] tenant pur auter vie may devise it *by will, or it shall go 
 to the executors or administrators, and be assets in their hand for 
 payment of debts : the other, that of 1 4 Geo. II., ch. 20, which enacts, 
 that the surplus of s\XQh. &%\zX.t. pur auter vie, after payment of 
 debts, shall go in a course of distribution like a chattel interest' 
 ' These statutes have been substantially reenacted by later acts, though 
 with slight modifications. In like manner, similar statutes have been passed 
 
OF TITLE BY OCCUPANCY. 415 
 
 By these two statutes the title of common occupancy is ut- 
 terly extinct and abolished ; though that of special occupancy by 
 the heir at law continues to this day ; such heir being held to 
 succeed to the ancestor's estate, not by descent, for then he must 
 take an estate of inheritance, but as an occupant specially marked 
 out and appointed by the original grant. But, as before the stat- 
 utes there could no common occupancy be had of incorporeal 
 hereditaments, as of rents, tithes, advowsons, commons, or the 
 like, (because, with respect to them, there could be no actual en- 
 try made, or corporeal seizin had ; and therefore by the death of 
 the grantee pur auter yie a grant of such hereditaments was en- 
 tirely determined,) so now, I apprehend, notwithstanding these 
 statutes, such grant would be determined likewise ; and the here- 
 ditaments would not be devisable, nor vest in the executors, nor 
 go in a course of distribution. For these statutes must not be 
 construed so as to create any new estate, or keep that alive 
 which by the common law was determined, and thereby to defer 
 the grantor's reversion ; but merely to dispose of an interest in 
 being, to which by law there was no owner, and which therefore 
 was left open to the first occupant. When there is a residue left, 
 the statutes give it to the executors and administrators, instead 
 of the first occupant ; but they will not create a residue, on pur- 
 pose to give it to either. They only meant to provide an ap- 
 pointed instead of a casual, a certain instead of an uncertain, 
 owner of lands which before were nobody's : and thereby to sup- 
 ply this casus omissus, and render the disposition of law in al! 
 respects entirely uniform ; this being the only instance wherein 
 a title to real estate could ever be acquired by occupancy. 
 * This, I say, was the only instance ; for I think there [*261 
 can be no other case devised, wherein there is not some owner 
 of the land appointed by the law. In the case of a sole corpora- 
 tion, as a parson of a church, when he dies or resigns, though 
 there is no actual owner of the land till a successor be appointed, 
 yet there is a legal, potential, ownership, subsisting in contem- 
 plation of law ; and when the successor is appointed, his appoint- 
 ment shall have a retrospect and relation backwards, so as to 
 
 in a number of the United States, providing that the interest of the tenant 
 ^ur auter vie shall form part of the personal assets in the hands of execu- 
 tors or administrators. But, in some States, it is descerdible as real estate. 
 
4i6 OF TITLE BY OCCUPANCY. 
 
 entitle him to all the profits from the instant that the vacancy 
 commenced. And, in all other instances, when the tenant dies 
 intestate, and no other owner of the lands is to be found in the 
 common course of descents, there the law vests an ownership ir 
 the king, or in the subordinate lord of the fee, by escheat. 
 
 So also in some cases, where the laws of other nations give a 
 right by occupancy, as in lands newly created, by the rising oi 
 an island in the sea or in a river, or by the alluvion or dereliction 
 of the waters ; in these instances the law of England assigns 
 them an immediate owner. For Bracton tells us that if an island 
 arise in the middle of a river, it belongs in common to those 
 who have lands on each side thereof ; but if it be nearer to one 
 bank than the other, it belongs only to him who is proprietor of 
 the nearest shore : which is agreeable to, and probably copied 
 from, the civil law. Yet this seems only to be reasonable, where 
 the soil of the river is equally divided between the owners of the 
 opposite shores ; for if the whole soil is the freehold of any one 
 man, as it usually is whenever a several fishery is claimed, there 
 it seems just (and so is the constant practice) that the eyotts or 
 little islands, arising in any part of the river, shall be the prop- 
 erty of him who owneth the piscary and the soil.^ However, 
 ^ A distinction must be taken in regard to title to islands rising in a river, 
 or to soil acquired by alluvion, etc., between navigable and non-navigable 
 nvers, — a navigable river, in the technical legal sense of the term, being one 
 in which the tide ebbs and floves, while others are non-navigable. The term 
 filum aquce (thread of the stream) is used to denote an imaginary Hne pass- 
 ing along the centre of the river, mid-way between the banks, and dividing 
 the soil underneath into two equal parts. If the river be non-navigable, and 
 an island arises therein, which is divided by the filum aquce, tke separate 
 portions thus divided belong in severalty (not in common, as by Bracton's 
 statement quoted in the text,) to the owners of the opposite banks. Each 
 owns the part of the island nearest his own property. If a single person 
 owns both banks opposite the island, the whole island belongs to him. II 
 there be a gradual deposition of soil upon one bank, and none upon the 
 other, the thread of the stream will continually vary, so as always to con- 
 s^Hute the central line between the banks. But if a large quantity of land, 
 by some unusual flood, or any extraordinary casualty, be carried from one side 
 of the river to the other, the former thread of the sti earn will remain un- 
 changed, and the property of adjoining owners will have the same extent as 
 before. But islands forming in navigable rivers do not belong to adjacent 
 owners, but to the Sovereign or State. The doctrine of the^/«w/ aqtice is of 
 comparatively little importance in regard to such rivers, since the soil therein 
 belongs wholly to the State. (See Halsey v. McCormick, i8 N. Y. I47! 
 Granger v. Avery, 64 Me. 292 ; Trustees v. Dickinson, 9 Cush. 544.) 
 
OF TITLE B V OCCUPANC Y. ^ly 
 
 in case a new island rise in the sea, though the civil law gives it 
 to the first occupant, yet ours gives it to the king. *And [*262 
 as to lands gained from the sea, either by alluvion, by the wash- 
 ing up of sand and earth, so as in time to make terra firma : or 
 by dereliction, as when the sea shrinks back below the usual 
 watermark ; in these cases the law is held to be, that if this gain 
 be by little and little, by small and imperceptible degrees, it shall 
 go to the owner of the land adjoining. For de minimis non 
 airat lex : and, besides, these owners, being often losers by the 
 breaking in of the sea, or at charges to keep it out, this possible 
 gain is therefore a reciprocal consideration for such possible 
 charge or loss. But if the alluvion or dereliction be sudden and 
 considerable, in this case it belongs to the king : for, as the king 
 is lord of the sea, and so owner of the soil while it is covered 
 with water, it is but reasonable he should have the soil when the 
 water has left it dry. So that the quantity of ground gained, and 
 the time during which it is gaining, are what make it either the 
 king's or the subject's property. In the same manner if a river, 
 running between two lordships, by degrees gains upon the one, 
 and thereby leaves the other dry ; the owner who loses his 
 ground thus imperceptibly has no remedy : but if the course of 
 the river be changed by a sudden and violent flood, or other 
 hasty means, and thereby a man loses his ground, it is said that 
 he shall have what the river has left in any other place, as a re- 
 compense for this sudden loss. And this law of alluvions and 
 derelictions, with regard to rivers, is nearly the same in the im- 
 perial law ; from whence indeed those our determinations seem 
 to have been drawn and adopted : but we ourselves, as islanders, 
 have applied them to marine increases ; and have given our sov- 
 ereign the prerogative he enjoys, as well upon the particular 
 leasons before mentioned, as upon this other general ground of 
 jirerogative, which was formerly remarked, that whatever hatb 
 no other owner is vested by law in the king. 
 
 In some States, however, navigability is not determined by tidal flow, but 
 large rivers, so far as they are capable of actual navigation, are held navigable 
 even above tide-water, and their beds are deemed to belong to the Slate. {Bar- 
 neys Keokuk, 94 U. S. 324 ; Buffalo. S'c. Co. v. AT. V. Central R. Co., 10 Abb. 
 N. C. 107; Storer v. Jack, 60 Pa. St. 339; Washburn, Real Pr. III., 60-66. 
 436-443 [Sth ed.]) 27 
 
418 OF TITLE BY PRESCRIPTION. 
 
 CHAPTER XVII. 
 
 [BL. COMM. BOOK II. CH. XVII.] 
 
 JIT. Of Title by Prescription. 
 
 A THIRD method of acquiring real property by purchase is that 
 by prescription ; as when a man can show no other title to what 
 he claims, than that he, and those under whom he claims, have 
 immemorially used to enjoy it. Concerning customs, or im- 
 memorial usages, in general, with the several requisites and rules 
 to be observed, in order to prove their existence and validity, we 
 inquired at large in the preceding part of these Commentaries. 
 At present therefore I shall only, first, distinguish between cus- 
 tom, strictly taken, and prescription ; and then show what sort 
 of things may be prescribed for. 
 
 And, first, the distinction between custom and prescription 
 is this ; that custom is properly a local usage, and not annexed 
 to a. person ; such as a custom in the manor of Dale that lands 
 shall descend to the youngest son : prescription is merely a per- 
 sonal usage ; as, that Sempronius and his ancestors, or those 
 whose estate he hath, have used time out of mind to have such 
 an advantage or privilege. As for example ; if there be a usage 
 in the parish of Dale, that all the inhabitants of that parish may 
 dance on a certain close, at all times, for their recreation (which 
 is held to be a lawful usage) ; this is strictly a custom, for it is 
 applied to the place in general, and not to any particular /«to/w .' 
 *264] but if the *tenant, who is seized of the manor of Dale in 
 fee, alleges that he and his ancestors, or all those whose estate 
 he hath in the said manor, have used time out of mind lo have 
 common of pasture in such a close, this is pr operly calledajore- 
 scription ; for this is a usage annexed to t\\e person oi the owner 
 of this estate. All prescription must be either in a man and his 
 ancestors, or in a man and those whose estate he hath : which 
 last is called prescribing in a que estate. And formerly a man 
 might, by the common law, have prescribed for a right which had 
 been enjoyed by his ancestors or predecessors at any distance of 
 time, though his or their enjoyment of it had been suspended foi 
 
OF TITLE BY PRESCRIPTION. 419 
 
 an indefinite series of years. But by the statute of limit.- tions, 
 32 Hen. VIII., ch. 2, it is enacted, that no person shall make any 
 prescription by the seizin or possession of his ancestor or prede- 
 cessor, unless such seizin or possession hath been within three- 
 score years next before such prescription made. 
 
 Secondly, as to the several species of things which may, or 
 may not, be prescribed for : we may, in the first place, observe, 
 that nothing but incorporeal hereditaments can be claimed by 
 prescription ; as a right of way, a common, &c. ; but that no 
 prescription can give a title to lands, and other corporeal sub- 
 stances, of which mor£ certain evidence may be had. For a 
 man shall not be said to prescribe, that he and his ancestors 
 have immemoriall/ used to hold the castle of Arundel : for this 
 is clearly another sort of title ; a title by corporal seizin, and 
 inheritance, which is more permanent, and therefore more capable 
 of proof, than that of prescription. But, as to a right of way, a 
 common, or the like, a man may be allowed to prescribe ; for of 
 these there is no corporal seizin, the enjoyment will be fre- 
 quently by intervals, and therefore the right to enjoy them can 
 depend on nothing else but immemorial usage. 2. A prescrip- 
 tion must always be *laid in him that is tenant of the fee. [*265 
 A tenant for life, for years, at will, or a copyholder, cannot pre- 
 sciibe, by reason of the imbecility of their estates. For, as 
 prescription is usage beyond time of memory, it is absurd 
 that they should pretend to prescribe for anything, whose estates 
 commenced within the remembrance of man.-' And therefore 
 
 ' The period of immemorial enjoyment, which was necessary in the Eng- 
 lish law to establish a title by prescription, was deemed to run from the 
 reign of Richard I. (1189). But as this period became unreasonably remote 
 in the lapse of time, it became the practice to presume the existence of a 
 grant, upon proof of an uninterrupted adverse enjoyment of the right for 
 twenty years. This subject is now regulated in England by a positive stat- 
 ute (2 & 3 Will. IV., ch. 71), which specifies particular periods of possession or 
 enjoyment as necessary to establish a right to certain classes of incorporeal 
 hereditaments. This is known as the Prescription Act. And in the United 
 States, adverse enjoyment, which is exclusive and uninterrupted for the 
 space of twenty years, is usually deemed to create a title to incorporeal 
 hereditaments by prescription. This subject is governed in a number of the 
 States by statutory provisions, which sometimes prescribe different periods 
 than twenty years. The enjoyment of the right or privilege in these cases 
 must have been adverse, under a claim of right, — exclusive, continuous, and 
 uninterrupted, and with the knowledge and acquiescence of the owner of the 
 
420 OF TITLE BY PRESCRIPTION. 
 
 the copyholder must prescribe under cover of his lord's estate, 
 and the tenant for life under cover of the tenant in fee-simple. 
 As if tenant for life of a manor would prescribe for a right if 
 common as appurtenant to the same, he must prescribe under 
 cover of the tenant in fee-simple ; and must plead that John 
 Stiles and his ancestors had immemorially used to have this right 
 of common, appurtenant to the said manor, and that John Stiles 
 demised the said manor, with its appurtenances, to him the said 
 tenant for life. 3. A prescription cannot be for a thing which 
 cannot be raised by grant. For the law allows prescription 
 only in supply of the loss of a grant, and therefore every pre- 
 scription presupposes a grant to have existed. Thus the lord of 
 a manor cannot prescribe to raise a tax or toll upon strangers ; 
 for, as such claim could never have been good by any grant, it 
 shall not be good by prescription. 4. A fourth rule is, that 
 what is to arise by matter of record cannot be prescribed for, 
 but must be claimed by grant, entered on record ; such as, for 
 instance, the royal franchises for deodands, felons' goods, and 
 the like. These, not being forfeited till the matter on which 
 they arise is found by the inquisition of a jury, and so made a 
 matter of record, the forfeiture itself cannot be claimed by an 
 inferior title. But the franchises of treasure-trove, waifs, estrays, 
 and the like, may be claimed by prescription; for they arise 
 from private contingencies, and not from any matter of record. 
 5. Among things incorporeal, which maj^ be claimed by prescr-p 
 tion, a distinction must be made with regard to the manner of 
 prescribing ; that is, whether a man shall prescribe in a que 
 estate, or in himself and his ancestors. For, if a man prescribes 
 in a que estate (that is, in himself and those whose estate he 
 *266] holds), nothing *is claimable by this prescription, but 
 such things as are incident, appendant, or appurtenant to lands ; 
 for it would be absurd to claim anything as the consequence, or 
 appendix of an estate, with which the thing claimed has no 
 connection ; but, if he prescribes in himself and his ancestors, he 
 may prescribe for anything whatsoever that lies in grant ; not 
 only things that are appurtenant, but also such as may be in 
 gross. Therefore a man may prescribe, that he, and those 
 
 estate in which the prescriptive right is claimed, and while such owner was 
 under no disability, preventing him from resisting such enjoyment. (Ses 
 Washburn on Real Property, iii. p. 56, 5th ed.) 
 
OF TITLE BY PRESCRIPTION. 451 
 
 whose estate he hath in the manor of Dale, have used to .lold 
 the advowson of Dale, as appendant to that manor ; but, if the 
 advowson be a distinct inheritance, and not appendant, then he 
 can only prescribe in his ancestors. So also a man may pre- 
 scribe in a que estate for a common appurtenant to a manor ; but, 
 if he would prescribe for a common in gross, he must prescribe 
 in himself and his ancestors. 6. Lastly, we may observe, that 
 estates gained by prescription are not, of course, descendible to 
 the heirs general, like other purchased estates, but are an excep- 
 tion to the rule. For, properly speaking, the prescription is 
 rather to be considere4 as an evidence of a former acquisition, 
 than as an acquisition de novo : and therefore, if a man pre- 
 scribes for a right of way in himself and his ancestors, it will 
 descend only to the blood of that line of ancestors in whom he 
 so prescribes ; the prescription in this case being indeed a 
 species of descent. But, if he prescribes for it in a que estate, 
 it will follow the nature of that estate in which the prescription 
 is laid, and be inheritable in the same manner, whether that 
 were acquired by descent or purchase ; for every accessory 
 foUoweth the nature of its principal.^ 
 
 ' The doctrine of prescription applies properly only to incorporeal here- 
 ditaments. But a similar mode of acquiring title to corporeal hereditaments 
 has been established by statutes, known as statutes of limitation. The 
 theory of prescription existed at common law, but that of limitation is wholly 
 statutory. The statutes of different States differ considerably in detail, but 
 the leading principles upon the subject are as follows : The possession of 
 <he person claiming to have acquired title must have been actual, continued, 
 visible, notorious, distinct, and hostile, under an adverse claim of right. 
 There must be a dispossession of the previous owner, or an occupation in 
 exclusion of his right of possession. If the property be suitable for resi- 
 dence or capable of improvement, actual occupation or continued cultivation 
 or enclosure are usually requisite as necessary to establish a title by limitation. 
 Possession is said to be adverse when it is under claim of interest or title as 
 against the owner, and not in subordination to his title or by his permission. 
 The usual period of limitation is twenty years, as in cases of prescription. 
 (See Foulke v. Bond, 41 N.J. L. 527 ; Barnes v. Ligiit, 1 16 N. Y. 34 ; Duff 
 V. Leary, 146 Mass. 533; Riggs v. Riley, 113 Ind. 208; Washburn on Real 
 Property, III. 133-191, 5th ed.) 
 
♦22 OF TITLE BY FORFEITURE. 
 
 CHAPTER XVIII. 
 
 [bL. COMM. — BOOK II. CH. XVIII.] 
 
 IV. Of Title by Forfeiture. 
 
 Forfeiture is a punishment annexed by law to some illegal 
 act, or negligence, in the owner of lands, tenements, or heredita- 
 ments ; whereby he loses all his interest therein, and they go 
 to the party injured, as a recompense for the wrong which either 
 he alone, or the public together with himself, hath sustained. 
 
 Lands, tenements, and hereditaments, may be forfeited in 
 various degrees and by various means : i. By crimes and mis- 
 demeanors. 2. By alienation contrary to law. 3. By non-pre- 
 sentation to a benefice, when the forfeiture is denominated a 
 lapse. 4. By simony. 5. By non-performance of conditions. 
 6. By waste. 7. By breach of copyhold customs. 8. By bank- 
 ruptcy.-' 
 
 I. The foundation and justice of forfeitures for crimes and 
 misdemeanors, and the several degrees of those forfeitures pro- 
 portioned to the several offences, have been hinted at in the 
 preceding book ; but it will be more properly considered, and 
 more at large, in the fourth book of these Commentaries.'' A 
 present I shall only observe in general, that the offences which 
 induce a forfeiture of lands and tenements to the crown are 
 principally the following six : i. Treason. 2. Felony. 3. Mis- 
 *268] prision of treason. 4. Praemunire. *$. Drawing a wea- 
 pon on a judge, or striking any one in the presence of the king's 
 principal courts of justice. 6. Popish recusancy, or non-observ- 
 ance of certain laws enacted in restraint of papists. But at 
 what time they severally commence, how far they extend, and 
 how long they endure, will with greater propriety be reserved as 
 the object of our future inquiries. 
 
 ^ Lapse, simony, and breach of copyhold customs, as causes of forfeiture, 
 have been omitted in this chapter, as of little importance to the American 
 student. 
 
 ' Forfeiture for crime, except in cases of outlawry, is now abolished in 
 English law. (Stat. 33 & 34 Vict., ch. 23.) 
 
OF TITLE B Y FORFEITURE. 423 
 
 II. Lands and tenements may be forfeited by alienation, or 
 conveying them to another, contrary to law. This is either 
 alienation in mortmain, alienation to an alien, or alienation by 
 patticular tenants ; in the two former of which cases the forfeit- 
 ure arises from the incapacity of the alienee to take, in the latter 
 from the incapacity of the alienor to grant. 
 
 I. Alienation in mortmain, in mottua manu, is an alienation 
 of lands or tenements to any corporation, sole or aggregate, eccle- 
 siastical or temporal. But these purchases having been chiefly 
 made by religious houses, in consequence whereof the lands be- 
 came perpetually inherent in one dead hand, this hath occa- 
 sioned the general appellation of mortmain to be applied to such 
 alienations, and the religious houses themselves to be principally 
 considered in forming the statutes of mortmain ; in deducing the 
 history of which statutes, it will be matter of curiosity to observe 
 the great address and subtle contrivance of the ecclesiastics in 
 eluding from time to time the laws in being, and the zeal with 
 which successive parliaments have pursued them through all 
 their finesses : how new remedies were still the parents of new 
 evasions ; till the legislature at last, though with difficulty, hath 
 obtained a decisive victory. 
 
 By the common law any man might dispose of his lands to 
 any other private man at his own discretion, especially when the 
 feudal restraints of alienation were worn away. Yet in conse- 
 quence of these it was always, and is still necessary for corpora- 
 tions to have a license in mortmain *from the crown, to [*269 
 enable them to purchase lands ; for as the king is the ultimate 
 lord of every fee, he ought not, unless by his own consent, to 
 lose his privilege of escheats, and other feudal profits, by the 
 vesting of lands in tenants that can never be attainted or die. 
 And such licenses of mortmam seem to have been necessary 
 among the Saxons, above sixty years before the Norman Conquest 
 But, besides this general license from the king, as lord para- 
 mount of the kingdom, it was also requisite, whenever there was 
 a mesne or intermediate lord between the king and the alienor, 
 to obtain his license also (upon the same feudal principles), for 
 the alienation of the specific land. And if no such license was 
 obtained, the king or other lord might respectively enter on the 
 land so aliened in mortmain as a forfeiture. The necessity of 
 this license from the crown was acknowledged by the constitu- 
 
424 OF TITLE BY FORFEITURE. 
 
 tions of Clarendon in respect of advowsons, which the monks 
 always greatly coveted, as being the groundwork of subsequen* 
 appropriations. Yet such were the influence and ingenuity of 
 the clergy, that (notwithstanding this fundamental principle), we 
 find that the largest and most considerable dotations of religious 
 houses happened within less than two centuries after the con- 
 quest. And (when a license could not be obtained) their contri- 
 vance seems to have been this ; that, as the forfeiture for such 
 alienations accrued in the first place to the immediate lord of the 
 fee, the tenant who meant to alienate first conveyed his lands 
 to the religious house, and instantly took them back again to 
 hold as tenant to the monastery ; which kind of instantaneous 
 seizin was probably held not to occasion any forfeiture : and then 
 by pretext of some other forfeiture, surrender, or escheat, the 
 society entered into those lands in right of such newly-acquired 
 seigniory, as immediate lords of the fee. But, when these dota- 
 tions began to grow numerous, it was observed that the feudal 
 services, ordered for the defence of the kingdom, were every 
 day visibly withdrawn ; that the circulation of landed property 
 270*] from man to man began to *stagnate ; and that the lords 
 were curtailed of the fruits of their seigniories, their escheats, 
 wardships, reliefs, and the like, and therefore, in order to pre- 
 vent this, it was ordained by the second of King Henry Ill's 
 great charters, and afterwards by that printed in our common 
 statute-books, that all such attempts should be void, and the land 
 forfeited to the lord of the fee. 
 
 But, as this prohibition extended only to religious houses, 
 bishops, and other sole corporations were not included therein ; 
 and the aggregate ecclesiastical bodies (who. Sir Edward Coke 
 observes, in this were to be commended, that they ever had of 
 their counsel the best learned men that they could get), found 
 many means to creep out of this statute, by buying in lands that 
 were bond fide holden of themselves as lords of the fee, and 
 thereby evading the forfeiture ; or by taking long leases for 
 years, which first introduced those extensive terms, for a thou- 
 sand or more years, which are now so frequent in conveyances. 
 This produced the statute de religiosis, 7 Edw. I. ; which pro- 
 vided, that no person, religious or other whatsoever, should buy, 
 or sell, or receive under a pretence of a gift, or term of years, 01 
 any other title whatsoever, nor should by any art or ingenuitj 
 
OF TITLE BY FORFEITURE. 425 
 
 appropriate to himself, any lands or tenements in mortmain ; 
 upon pain that the immediate lord of the fee, or, on his default 
 for one year, the lords paramount, and, in default of all of them, 
 the king, might enter thereon as a forfeiture. 
 
 This seemed to be a suflficient security against all alienations 
 in mortmain ; but as these statutes extended only to gifts and 
 conveyances between the parties, the religious houses now began 
 to set up a fictitious title to the land, which it was intended they 
 * should have, and to bring an *action to recover it against [*271 
 the tenant ; who, by fraud and collusion, made no defence, and 
 thereby judgment was given for the religious house, which then 
 recovered the land by sentence of law upon a supposed prior 
 title. And thus they had the honor of inventing those fictitiou.'> 
 adjudications of right, which are since become the great assur- 
 ance of the kingdom, under the name of common recoveries. But 
 upon this the statute of Westminster the second, 13 Ed. I. ch. 32, 
 enacted, that in such cases a jury shall try the true right of the 
 demandants or plaintiffs to the land, and if the religious house 
 or corporation be found to have it, they shall still recover seizin ; 
 otherwise it shall be forfeited to the immediate lord of the fee, 
 or else to the next lord, and finally to the king, upon the imme- 
 diate or other lord's default. And the like provision was made 
 by the succeeding chapter, in case the tenants set up crosses 
 upon their lands (the badges of knights templar and hospital- 
 lers), in order to protect them from the feudal demands of their 
 lords, by virtue of the privileges of those religious and military 
 orders. So careful indeed was this provident prince to prevent 
 any future evasions, that when the statute of quia emptores, 18 
 Edw. I., abolished all subinfeudations, and gave liberty for all 
 men to alienate their lands to be holden of their next immediate 
 lord, a proviso was inserted, that this should not extend to au- 
 thorize any kind of alienation in mortmain. And when after- 
 wards the method of obtaining the king's license by writ of ad 
 quod damnum was marked out, by the statute 27 Ed. I., st. 2, it 
 was further provided by statute 34 Ed. I., st. 3, that no such 
 license should be effectual, without the consent of the mesne or 
 intermediate lords. 
 
 Yet still it was found difficult to set bounds to ecclesiastical 
 ingenuity ; for when they were driven out of all their former 
 holds, they devised a new method of conveyance, by which the 
 
426 OF TITLE BY FORFEITURE. 
 
 lands were granted, not to themselves directly, but to nominal 
 feoffees to the use of the religious houses ; thus distinguishing 
 *272] between the possession and the use, and receiving *the 
 actual profits, while the seizin of the land remained in the nom- 
 inal feoffee ; who was held by the courts of equity (then under 
 the direction of the clergy) to be bound in conscience to account 
 to his cestui que use for the rents and emoluments of the estate. 
 And it is to these inventions that our practicers are indebted for 
 the introduction of uses and trusts, the foundation of modern' 
 conveyancing. But, unfortunately for the inventors themselves, 
 they did not long enjoy the advantage of their new device ; for 
 the statute 1 5 Ric. II., ch. 5, enacts, that the lands which had been 
 so purchased to uses should be amortised by license from the 
 crown or else be sold to private persons ; and that, for the future, 
 uses shall be subject to the statutes of mortmain, and forfeitable 
 like the lands themselves. And whereas the statutes had been 
 eluded by purchasing large tracts of land, adjoining to churches, 
 and consecrating them by the name of church-yards, such subtile 
 imagination is also declared to be within the compass of the stat- 
 utes of mortmain. And civil or lay corporations, as well as eccle- 
 siastical, are also declared to be within the mischief, and of course 
 within the remedy provided by those salutary laws. And, lastly, 
 as during the times of popery, lands were frequently given to 
 superstitious uses, though not to any corporate bodies ; or were 
 made liable in the hands of heirs and devisees to the charge of 
 obits, chaunteries, and the like, which were equally pernicious in 
 a well-governed state as actual alienations in mortmain; there- 
 fore, at the dawn of the Reformation, the statute 23 Hen. 
 VIII. ch. 10, declares, that all future grants of lands for any of the 
 purposes aforesaid, if granted for any longer term than twenty 
 years, shall be void. 
 
 But, during all this time, it was in the power of the crown, 
 by granting a license of mortmain, to remit the forfeiture, so far 
 as related to its own rights ; and to enable any spiritual or other 
 corporation to purchase and hold any lands or tenements in per- 
 petuity ; which prerogative is declared and confirmed by the stat- 
 ute 18 Edw. III., St. 3, ch. 3. But, as doubts were conceived at 
 the time of the Revolution how far such license was valid since 
 *273] the kings had no *power to dispense with the statutes of 
 mortmain by a clause of non obstante which was the usual course, 
 
OF TITLE BY FORFEITURE. 427 
 
 though it seems to have been unnecessary : and as, by the grad- 
 ual declension of mesne signiories through the long operation ot 
 the statute of quia emptores, the rights of intermediate lords were 
 reduced to a very small compass ; it was therefore provided by 
 the statute 7 & 8 Wm. III., ch. 37, that the crown for the future at 
 its own discretion may grant licenses to alien or take in mort- 
 main, of whomsoever the tenements may be holden. 
 
 After the dissolution of monasteries under Henry VIII., though 
 the policy of the next popish successor affected to grant a secu- 
 rity to the possessors of abbey lands, yet, in order to regain so 
 much of them as either, the zeal or timidity of their owners might 
 induce them to part with, the statutes of mortmain weresuspend- 
 edfor twenty years by .the statute i & 2 P. & M. ch. 8, and during 
 that time, any lands or tenements were allowed to be granted to 
 any spiritual corporation without any license whatsoever. And, 
 long afterwards, for a much better purpose, the augmentation of 
 poor livings, it was enacted by the statute 17 Car. 11. ch. 3, that 
 appropriators may annex the great tithes to the vicarages ; and 
 that all benefices under 100/. per annum may be augmented by 
 the purchase of lands, without license of mortmain in either case ; 
 and the like provision hath been since made, in favor of the gov- 
 ernors of Queen Anne's bounty. It hath also been held that the 
 statute 23 Hen. VIII. before mentioned did not extend to any 
 thing but superstitious uses ; and that therefore a man may give 
 lands for the maintenance of a school, a hospital, or any other 
 charitable nse^s. But as it was apprehended from recent experience, 
 that persons on their death-beds might make large and improvi- 
 dent dispositions even for these good purposes, and defeat the 
 political ends of the statutes of mortmain ; it is therefore enacted 
 by the statute 9 Geo. II., ch. 36, that no lands or tenements, or 
 money to be laid out thereon, shall *be given for or charg- [*274 
 ed with any charitable uses whatsoever, unless by deed indented, 
 executed in the presence of two witnesses twelve calendar months 
 before the death of the donor, and enrolled in the court of chan- 
 cery within six months after its execution (except stocks in the 
 public funds, which may be transferred within six months pre- 
 vious to the donor's death), and unless such gift be made to take 
 effect immediately, and be without power of revocation : and that 
 all other gifts shall be void. The two universities, their colleges, 
 and the scholars upon the foundation of the colleges of Eton 
 
428 OF TITLE BY FORFEITURE 
 
 Winchester, and Westminster, are excepted out of thii act : but 
 such exemption was granted with this proviso, that no college 
 shall be at liberty to purchase more advowsons, than are equal 
 in number to one moiety of the fellows or students, upon the 
 respective foundations.' 
 
 2. Secondly, alienation to an alien is also a cause of forfeiture 
 to the. crown of the land so alienated ; not only on account of his 
 incapacity to hold them, which occasions him to be passed by in 
 descents of land, but likewise on account of his presumption in 
 attempting by an act of his own, to acquire any real property ; as 
 was observed in the preceding book.* 
 
 3. Lastly, alienations by particular tenants, when they are 
 greater than the law entitles them to make, and divest the re- 
 mainder or reversion, are also forfeitures to him whose right is 
 attacked thereby. As, if tenant for his own life alienes by feoff- 
 ment or fine for the life of another, or in tail, or in fee, these being 
 estates, which either must or may last longer than his own, the 
 creating them is not only beyond his power, and inconsistent with 
 the nature of his interest, but is also a forfeiture of his own 
 particular estate to him in remainder or reversion. For which 
 there seem to be two reasons. First, beoause such alienation 
 amounts to a renunciation of the feudal connection and depen- 
 dance ; it implies a refusal to perform the due renders and ser- 
 *275] vices to the lord of *the fee, of which fealty is constantly 
 one, and it tends in its consequence to defeat and divest the 
 remainder or reversion expectant : as therefore that is put in 
 jeopardy, by such act of the particular tenant, it is but just that, 
 upon discovery, the particular estate should be forfeited and 
 taken from him, who has shown so manifest an inclination to 
 make an improper use of it. The other reason is, because the 
 particular tenant, by granting a larger estate than his own, has 
 
 5 The statutes of mortmain are not in force in the United States, except in 
 the State of Pennsylvania, where they still exist in a modified form. It i* a 
 general rule that corporations may acquire and hold land so far as not prohibi- 
 ted by charter, if in other respects consistent with the purposes of their estab- 
 lishment. There are special statutory restrictions in regard to acquiring 
 property by devise ; but devises to corporations for charitable purposes are 
 usually sanctioned and declared allowable, though in some States a restric- 
 tion is placed upon the testator as regards the amount of the property which 
 he may thus dispose of for such objects. (See ante, p. 199, note 13.) 
 
 ^ See a«/« p. ii9,note 2. 
 
OF TITLE BY FORFEITURE. 
 
 429 
 
 by his own act determined and put an entire end to his own 
 original interests ; and on such determination the next taker is 
 entitled to enter regularly, as in his remainder or reversion.* The 
 same law, which is thus laid down with regard to teriants for 
 life, holds also with respects to all tenants of the mere freehold 
 or of chattel interests ; but if tenant in tail alienes in fee, this is 
 no immediate forfeiture to the remainder-man, but a mere dis- 
 continuance (as it is called) of the estate-tail, which the issue may 
 afterwards avoid by due course of law : for he in remainder or 
 reversion hath only a very remote and barely possible interest 
 therein, until the issue, in tail is extinct. But, in case of such 
 forfeitures by particular tenants, all legal estates by them before 
 created, as if tenant for twenty years grants a lease for fifteen, 
 and all charges by him lawfully made on the lands, shall be good 
 and available in law. For the law will not hurt an innocent les- 
 see for the fault of his lessor ; nor permit the lessor, after he has 
 granted a good and lawful estate, by his own act to avoid it, and 
 defeat the interest which he himself has created. 
 
 Equivalent, both in its nature and its consequences, to an ille- 
 gal alienation by the particular tenant, is the civil crime of dis- 
 claimer; as where a tenant, who holds of any lord, neglects to 
 render him the due services, and, upon an action brought to 
 recover them, disclaims to hold of his lord. Which disclaimer 
 of tenure in any court of record is a forfeiture of the lands to the 
 lord upon reasons most apparently feudal. And so likewise, if in 
 any court of record the *particular tenant does any act [*276 
 which amounts to a virtual disclaimer ; if he claims any greater 
 estate than was granted him at the first infeudation, or takes 
 upon himself those rights which belong only to tenants of a supe- 
 rior class ; if he affirms the reversion to be in a stranger, by 
 accepting his fine, attorning as his tenant, collusive pleading, and 
 the like ; such behavior amounts to a forfeiture of his particular 
 estate.f 
 
 *V. The next kind of forfeitures are those by breach [*284 
 
 ' But now it is provided by statute in England, that no feoffment sliall 
 have a tortious operation, so that forfeiture for this cause cannot now occur. 
 In a number of the United States it is provided that the conveyance by a 
 tenant of a greater interest or estate than he possesses, shall not operate to 
 occasion a forfeiture, but shall only have the effect to transfer the interest to 
 which he is actually entitled. 
 
 t As to disclaimer, see Delancey v. Ganong, g N. Y. 9; Washb\irn on "Real Prop. I. 126, 
 ^, sth ed. 
 
430 OF TITLE BY FORFEITURE. 
 
 or non-peiformance of a condition annexed to the estate, eithei 
 expressly by deed at its original creation, or impliedly by law 
 from a principle of natural reason. Both which we considered 
 at large in a former chapter. 
 
 VI. I therefore now proceed to another species of forfeiture, 
 viz. by waste. Waste, vastum, is a spoil or destruction in houses, 
 gardens, trees, or other corporeal hereditaments, to the disherison 
 of him that hath the remainder or reversion in fee-simple or fee- 
 tail.= 
 
 Waste is either voluntary, which is a crime of commission, as 
 by pulling down a house ; or it is permissive, which is a matter of 
 omission only, as by suffering it to fall for want of necessary 
 reparations. Whatever does a lasting damage to the freehold or 
 inheritance is waste. Therefore removing wainscot, floors, or 
 other things once fixed to the freehold of a house, is waste. 
 If a house be destroyed by tempest, lightning, or the like, 
 which is the act of Providence, it is no waste : but otherwise, 
 if the house be burnt by the carelessness or negligence of the 
 lessee: though now by the statute 6 Ann., ch. 31, no action 
 will lie against a tenant for an accident of this kind. Waste may 
 also be committed in ponds, dove-houses, warrens, and the like ; 
 by so reducing the number of the creatures therein, that there 
 will not be sufficient for the reversioner when he comes to the 
 inheritance. Timber also is a part of the inheritance. Such are 
 oak, ash, and elm in all places ; and in some particular countries 
 by local custom, where other trees are generally used for building 
 they are for that reason considered as timber ; and to cut down 
 such trees, or top them, or do any other act whereby the timber 
 may decay, is waste. But underwood the tenant may cut down 
 *282] at any seasonable time *that he pleases ; and may take 
 sufficient estovers of common right for house-bote and cart-bote; 
 unless restrained (which is usual) by particular covenants or 
 exceptions. The conversion of land from one species to another 
 is waste. To convert wood, meadow, or pasture, into arable ; to 
 turn arable, meadow, or pasture, into woodland ; or to turn ara- 
 ble or woodland into meadow or pasture, are all of them waste. 
 For, as Sir Edward Coke observes, it not only changes the course 
 of husbandry, but the evidence of the estate ; when such a close, 
 which is conveyed and described as pasture, is found to be arable 
 and e converse. And the same rule is observed, for the same 
 
OF TITLE BY FORFEITURE. 431 
 
 roason, with regard to converting one species of edifice into an 
 other, even though it is improved in its value. To open the land 
 to search for mines of metal, coal, &c. is waste ; for that is a 
 detriment to the inheritance : but if the pits or mines were open 
 before, it is no waste for the tenant to continue digging them for 
 his own use ; for it is now become the mere annual profit of the 
 land. These three are the general heads of waste, viz. in houses, 
 in timber, and in land. Though, as was before said, whatever 
 else tends to the destruction, or depreciating the value of the 
 inheritance, is considered by the law as waste. 
 
 Let us next see, whp are liable to be punished for committing 
 waste. And by the feudal law, feuds being originally granted for 
 life only, we find that the rule was general for all vassals or feud- 
 atories ; " si v as alius feudum dissipaverit, aut insigni detrimento 
 detenus fecerit, privabitur." But in our ancient common law the 
 rule was by no means so large ; for not only he that was seized of 
 an estate of inheritance might do as he pleased with it, but also 
 waste was not punishable in any tenant, save only in three per- 
 sons ; guardian in chivalry, tenant in dower, and tenant by the 
 *curtesy ; and not in tenant for life or years. And the [*283 
 reason of the diversity was, that the estate of the three former 
 was created by the act of the law itself, which therefore gave a 
 remedy against them; but tenant for life, or for years, came in 
 by the demise and lease of the owner of the fee, and therefore he 
 might have provided against the committing of waste by his les- 
 see ; and if he did not, it was his own default. But, in favor of 
 the owners of the inheritance, the statutes of Marlbridge, 52 Hen. 
 III., ch. 23, and of Gloucester, 6 Edw. I., ch. 5, provided that the 
 writ of waste shall not only lie against tenants by the law of En- 
 gland (or curtesy), and those in dower, but against any farmer or 
 other that holds in any manner for life or years. So that, for 
 above five hundred years past, all tenants merely for life, or for 
 any less estate, have been punishable or liable to be impeached 
 for waste, both voluntary and permissive ; unless their leases be 
 made, as sometimes they are, without impeachment of waste, 
 absque impetitione vasti : that is, with a provision or protection 
 that no man shall impetere, or sue him for waste committed. But 
 tenant in tail after possibility of issue extinct is not impeachable 
 for waste ; because his estate was at its creation an estate of in- 
 heritance, and so not within the statutes. Neither does an action 
 
432 OF TITLE BY FORFEITURE. 
 
 of waste lie for the debtor against tenant by statute, recognizance 
 or elegit ; because against them the debtor may set off the 
 damages in account : but it seems reasonable that it should he 
 for the reversioner, expectant on the determination of the debtor's 
 own estate, or of these estates derived from the debtor. 
 
 The punishment for waste committed was, by common law 
 and the statute of Marlbridge, only single damages ; except in 
 the case of a guardian, who also forfeited his wardship by the 
 provisions of the great charter ; but the statute of Gloucester 
 directs, that the other four species of tenants shall lose and forfeit 
 the place wherein the waste is committed, and also treble damages 
 to him that hath the inheritance. The expression of the statute 
 is, " he shall forfeit the thing v^Yac^a. he hath wasted ; " and it hath 
 been determined that under these words the place is also includ- 
 ed. And if waste be done sparsim, or here and there, all over a 
 wood, the whole wood shall be recovered ; or if in several rooms 
 *2841 of a *house, the whole house shall be forfeited ; because 
 it is impracticable for the reversioner to enjoy only the identical 
 places wasted, when lying interspersed with the other. But if 
 waste be done only in one end of a wood (or perhaps in one room 
 of a house, if that can be conveniently separated from the rest), 
 that part only is the locus vastatus, or thing wasted, and that 
 only shall be forfeited to the reversioner. 
 
 VIII. The eighth and last method whereby lands and tene- 
 ments may become forfeited, is that of bankruptcy, or the act of 
 becoming a bankrupt : which unfortunate person may, from the 
 several descriptions given of him in our statute law, be thus 
 defined ; a trader who secretes himself, or does certain other acts, 
 tending to defraud his creditors. 
 
 Who shall be such a trader, or what acts are sufficient to 
 denominate him a bankrupt, with the several connected conse- 
 quences resulting from that unhappy situation, will be better 
 considered in a subsequent chapter ; when we shall endeavor 
 more fully to explain its nature, as it most immediately relates to 
 personal goods and chattels. I shall only here observe the man- 
 ner in which the property cf lands and tenements is transferred, 
 upon the supposition that the owner of them is clearly and indis- 
 putably a bankrupt, and that a commission of bankrupt is awarded 
 and ii:sued against him. 
 
 ^ See in regard to waste, ante p. 304, note i. 
 
OF TITLE BY FORFEITURE. 433 
 
 By statute 1 3 Eliz., ch. 7, the commissioners for that purpose, 
 when a man is declared a bankrupt, shall have full power to dis- 
 pose of all his lands and tenements, which he had in his own 
 right at the time when he became a bankrupt, or which shall 
 descend or come to him at any time afterwards, before his debts 
 are satisfied or agreed for ; and all lands and tenements which 
 were purchased by him jointly with his wife or children to his 
 own use (or such interest therein as *he may lawfully part [*286 
 with,) or purchased with any other person upon secret trust for 
 his own use ; and to cause them to be appraised to their full 
 value, and to sell the same by deed indented and enrolled, or di- 
 vide them proportionatJly among the creditors. This statute ex- 
 pressly included not only free, but customary and copyhold 
 lands; but did not extend to estates-tail, .farther than for the 
 bankrupt's life ; nor to equities of redemption on a mortgaged 
 estate, wherein the bankrupt has no legal interest, but only an 
 equitable reversion. Whereupon the statute 21 Jac. I., ch. 19, 
 enacts, that the commissioners shall be empowered to sell or 
 convey, by deed indented and enrolled, any lands or tenements 
 of the bankrupt, wherein he shall be seized of an estate-tail in 
 possession, remainder, or reversion, unless the remainder or 
 reversion thereof shall be in the crown ; and that such sale shall 
 be good against all such issues in tail, remainder-men, and rever- 
 sioners, whom the bankrupt himself might have barred by a com- 
 mon recovery, or other means ; and that all equities of redemption 
 upon mortgaged estates, shall be at the disposal of the commis- 
 sioners ; for they shall have power to redeem the same as the 
 bankrupt himself might have done, and after redemption to sell 
 them. And also by this and a former act all fraudulent con- 
 veyances to defeat the intent of these statutes are declared void ; 
 but that no purchaser bona fide, for a good or valuable consid- 
 eration, shall be affected by the bankrupt laws, unless the com- 
 mission be sued forth within five years after the act of bankruptcy 
 committed. 
 
 By virtue of these statutes a bankrupt may lose all his real 
 estates ; which may at once be transferred by his commissioners 
 to their assignees without his participation or consent '. 
 
 ' The present English law of bankruptcy, as well as the law of the 
 United States upon the same subject, is fully considered in a subsequent 
 chapter, to which reference may be made. C&te.post, chap. XXX.) 
 28 
 
434 OF TITLE BY ALIENATION. 
 
 CHAPTER XIX. 
 
 [bL. COMM. — BOOK II. CH. XIX.] 
 
 V. Of Title by Alienation. 
 
 The most usual and universal method of acquiring a title to 
 real estates is that of alienation, conveyance, or purchase in its 
 limited sense ; under which may be comprised any method wherein 
 estates are voluntarily resigned by one man, and accepted by 
 another ; whether that be effected by sale, gift, marriage set- 
 tlement, devise, or other transmission of property by the mutual 
 consent of the parties. 
 
 This means of taking estates by alienation, is not of equal 
 antiquity in the law of England with that of taking them by 
 descent. For we may remember that, by the feudal law a pure 
 and genuine feud could not be transferred from one feudatory to 
 another without the consent of the lord ; lest thereby a feeble or 
 suspicious tenant might have been substituted and imposed upon 
 him to perform the feudal services, instead of one on whose abil- 
 ities and fidelity he could depend. Neither could the feudatory 
 then subject the land to his debts ; for if he might, the feudal 
 restraint of alienation would have been easily frustrated and 
 evaded. And, as he could not aliene it in his lifetime, so neither 
 could he by will defeat the succession, by devising his feud to 
 another family; nor even alter the course of it, by imposing par- 
 ticular limitations, or prescribing an unusual path of descent. 
 Nor, in short, could he aliene the estate, even with the consent 
 of the lord, unless he had also obtained the consent of his own 
 next apparent, or presumptive heir. And therefore it was very 
 *288] usual in ancient feoffments to express that *the alienation 
 was made by consent of the heirs of the feoffor : sometimes for 
 the heir apparent himself to join with the feoffor in the grant 
 And, on the other hand, as the feudal obligation was looked upon 
 to be reciprocal, the lord could not alien or transfer his signiory 
 without the consent of his vassal : for it was esteemed unreason- 
 able to subject a feudatory to a new superior, with whom he 
 
OF TITLE B Y ALIEN A TION. 43 5 
 
 might have a deadly enmity, without his own approbation ; or 
 even to transfer his fealty, without his being thoroughly apprised 
 of it, that he might know with certainty to whom his renders and 
 sei vices were due, and be able to distinguish a lawful distress for 
 rent, from a hostile seizing of his cattle by the lord of a neigh- 
 boring clan. This consent of the vassal was expressed by what 
 was called attorning or professing to become the tenant of the 
 new lord : which doctrine of attornment was afterwards extended 
 to all lessees for life or years. For if one bought an estate with 
 any lease for life or years standing out thereon, and the lessee or 
 tenant refused to attorn to the purchaser, and to become his 
 tenant, the grant or contract was in most cases void, or at least 
 incomplete : which was also an additional clog upon alienations. 
 But by degrees this feudal severity is worn off ; and experi- 
 ence hAth shown, that property best answers the purposes of civil 
 life, especially in commercial countries, when its transfer and 
 circulation are totally free and unrestrained. The road was 
 cleared in the first place by a law of King Henry the First, which 
 allowed a man to sell and dispose of lands which he himself had 
 purchased ; for over these he was thought to have a more exten- 
 sive power than over what had been transmitted to him in a 
 course of descent from his ancestors ; *a doctrine which [*289 
 is countenanced by the feudal constitutions themselves ; but he 
 was not allowed to sell the whole of his own acquirements, so as 
 totally to disinherit his children, any more than he was at liberty 
 to aliene his paternal estate. Afterwards a man seems to have 
 been at liberty to part with all his own acquisitions, if he had 
 previously purchased to him and his assigns by name ; but, if his 
 assigns were not specified in the purchase deed, he was not em- 
 powered to aliene : and also he might part with one-fourth of the 
 inheritance of his ancestors without the consent of his heir. 
 By the great charter of Henry HI., no subinfeudation was per- 
 mitted of part of the land, unless suificient was left to answer the 
 services due to the superior lord, which sufficiency was probably 
 interpreted to be one-half or moiety of the land. But these re- 
 strictions were in general removed, by the statute quia emptores, 
 whereby all persons, except the king's tenants in capita, were left 
 at liberty to aliene all or any part of their lands at their own dis- 
 cretion. And even these tenants in capite were by the statute i 
 Edw. TIL, ch. 12, permitted to aliene, on paying a fine to the king, 
 
« 
 
 436 OF TITLE B Y ALIEN A TION. 
 
 By the temporary statutes 7 Hen. VII., eh. 3, and 3 Hen. VIII., ch. 
 4, all persons attending the king in his wars were allowed tc 
 aliene their lands without license, and were relieved from other 
 feudal burdens. And, lastly, these very fines for alienations were, 
 in all cases of freehold tenure, entirely abolished by the statute 12 
 Car. II., ch. 24. As to the power of charging lands with the debts 
 of the owner, this was introduced so early as stat. Westm. 2, 
 which subjected a moiety of the tenant's lands to executions, for 
 debts recovered by law : as the whole of them was likewise sub- 
 jected to be pawned in a statute merchant by the statute de mer- 
 catoribus, made the same year, and in a statute staple by statute 
 27 Edw. III., ch. 9, and in other similar recognizances by statute 
 290] *23 Hen. VIII., ch. 6. And now, the whole of them is not 
 only subject to h& pawned ior the debts of the owner, but like- 
 wise to be absolutely sold for the benefit of trade and commerce 
 by the several statutes of bankruptcy. The restraint of devising 
 lands by will, except in some places by particular custom, lasted 
 longer ; that not being totally removed, till the abolition of the 
 military tenure. The doctrine of attornments continued still later 
 than any of the rest, and became extremely troublesome, though 
 many methods were invented to evade them ; till at last they 
 were made no longer necessary to complete the grant or convey- 
 ance, by statute 4 and 5 Ann., ch. 16 ; nor shall, by statute 11 
 Geo. II., ch. 19, the attornment of any tenant affect the possession of 
 any lands, unless made with consent of the landlord, or to a mort- 
 gagee after the mortgage is forfeited, or by direction of a court of 
 justice. 
 
 In examining the nature of alienation, let us first inquire, 
 briefly, who may aliene, and to whom ; and then, more largely, 
 how a man may aliene, or the several modes of conveyance. 
 
 I. Who may aliene, and to whom : or, in other words, who is 
 capable of conveying and who of purchasing. And herein we 
 mHSt consider rather the incapacity, than capacity, of the several 
 parties : for all persons m possession 2X& prima facie capable both 
 of conveying and purchasing, unless the law has laid them under 
 any particular disabilities. But, if a man has only in him the 
 right of either possession or property, he cannot convey it to any 
 other, lest pretended titles might be granted to great men, where- 
 by justice might be trodden down, and the weak oppressed.' 
 
 1 The common-law rule that a conveyance of lands by an owner, who has 
 
OF TITLE BY ALIENATION. 437 
 
 Yet reversions and vested remainders may be gra.ited ; bee ause 
 the possession of the particular tenant is the possession of him 
 in reversion or remainder ; but contingencies, and mere possibili- 
 ties, though they may be released, or devised by will, or may pass 
 to the heir or executor, yet cannot (it hath been said) be assigned 
 to a stranger, unless coupled with some present interest." 
 
 Persons attainted of treason, felony, and pramunire, are inca- 
 pable of conveying, from the time of the offence committed, pro- 
 vided attainder follows : for such conveyance by them may tend 
 to defeat the king of his forfeiture, or the *lord of his es- [*291 
 cheat."' But they xaz.-^ Jiurchase for the benefit of the crown, or 
 the lord of the fee, though they are disabled to hold; the lands 
 so purchased, if after attainder, being subject to immediate for- 
 feiture; if before, to escheat as well as forfeiture, according to 
 nature of the crime. So also corporations, religious or others, 
 may purchase lands ; yet, unless they have a license to hold in 
 mortmain, they cannot retain such purchase ; but it shall be for- 
 feited to the lorS of the fee. 
 
 Idiots and persons of non-sane memory, infants and persons un- 
 der duress, are not totally disabled either to convey or purchase, 
 but sub modo only. For their conveyances and purchases are voida- 
 ble, but not actually void. The king indeed, on behalf of an idiot, 
 may avoid his grants or other acts. But it hath been said, that 
 a nan compos himself, though he be afterwards brought to a right 
 
 been evicted or ousted of possession by another, who holds adversely under 
 claim of title, is void, as the transfer of a " pretended title," is still recog- 
 nized and enforced in a considerable number of the United States. In some 
 States, however, it has been abolished by statute. The evil of such convey, 
 ances was deemed to be that they promoted contention and litigation ; and 
 this was regarded as so injurious in tendency and so detrimental on grounds of 
 public policy, that it was held to be a legal offense, and was termed technically 
 "maintenance." The rigid laws of early times against maintenance have 
 been considerably relaxed, both in England and in this country, but not, as a 
 general rule, wholly abrogated. (See post, p. 906 ; Washburn on Real Prop. 
 111. 349, sth ed.) 
 
 "^ The law upon this subject has been changed by recent statutes ; and 
 mere rights of entry or of property without any estate, contingent interests, 
 and the like, are now declared to be both devisable and alienable by deed. 
 Provisions of a similar nature have been made in some of the United States 
 by statute. (Washburn on Real Prop. III. 104, 370, jth ed.) 
 
 ' Since attainder for crime is now abolished, this disability evidently no 
 longer exists. 
 
438 OF TITLE B Y ALIEN A TION. 
 
 mind, shall not be permitted to allege his own insanity in ordei 
 to avoid such grant : for that no man shall be allowed to stultify 
 himself, or plead his own disability. The progress of this notion 
 is somewhat curious. In the time of Edward I., noti compos was 
 a sufficient plea to avoid a man's own bond : and there is a writ in 
 the register for the alienor himself to recover lands ahened by 
 him during his insanity ; dum fuit non compos mentis sua, ut 
 diczt, &c. But under Edward III., a scruple began to arise 
 whether a man should be permitted to blemish himself by plead- 
 ing his own insanity : and, afterwards, a defendant in assize hav- 
 ing pleaded a release by the plaintiff since the last continuance, 
 to which the plaintiff replied (pre tenus, as the manner then was) 
 that he was out of his mind when he gave it, the court adjourned 
 the assize ; doubting, whether as the plaintiff was sane both then 
 and at the commencement of the suit, he should be permitted to 
 plead an intermediate deprivation of reason ; and the question 
 was asked, how he came to remember the release, if out of his 
 senses when he gave it. Under Henry VI., this way of 
 *292] *reasoning (that a man shall not be allowed to disable 
 himself, by pleading his own incapacity, because he cannot know 
 what he did under such a situation) was seriously adopted by the 
 judges in argument ; upon a question, whether the heir was barred 
 of his right of entry by the feoffment of his insane ancestor. And 
 from these loose authorities, which Fitzherbert does not scruple 
 to reject as being contrary to reason, the maxim that a man shall 
 not stultify himself hath been handed down as settled law : though 
 later opinions, feeling the inconvenience of the rule, have in many 
 points endeavored to I'estrain it.^ And, clearly, the next heir, or 
 
 * The ancient doctrine, tiiat no man sliall be allowed to stultify himself, 
 by pleading his own mental disability, is no longer recognized, either in Eng- 
 land or in this country. {AUis v. Billings, 6 Mete. 415.) The fact of his 
 lunacy at the time of making the conveyance, may be established by himself, 
 as well as by his representatives, for the purpose of avoiding the deed. {Lang 
 V. Whidden, 2 N. H. 435 ; Crawford v. Scovell, 94 Pa. St. 48.) It is some- 
 times a difficult question to determine, whether there has been suiBcient 
 impairment of mental powers, to render a deed invalid. The following re- 
 marks upon this point, in the case of Dennett v. Dennett (44 N. H. 538) 
 are of interest and value : " The question, then, in all cases where incapacity 
 to contract from defect of mind is alleged, is not whether a person's mind is 
 impaired, nor if he is afflicted by any form of insanity, but whether the 
 powers of his mind have been so far affected, by his disease, as to render 
 him incapable of transacting business like that in question." "Weakness 
 
OF TITLE B Y ALIEN A TION. 43q 
 
 person interested, may, after the death of the idiot or ncn compos, 
 take advantage of his incapacity and avoid the grant. And so 
 too, if he purchases under this disabiUty, and does not afterwards 
 upon recovering his senses agree to the purchase, his heir may 
 either waive or accept the estate at his option. In like manner, 
 an infant may waive such purchase or conveyance, when he 
 comes to full age ; or, if he does not actually agree to it, his heirs 
 may waive it after him.' Persons also, who purchase or convey 
 under duress, may affirm or avoid such transaction, whenever the 
 duress is ceased." For all these are under the protection of the 
 law; which will not suffer them to be imposed upon, through the 
 imbecility of their present condition ; so that their acts are only 
 binding, in case they be afterwards agreed to, when such imbe- 
 cility ceases. Yet the guardians or committees of a lunatic, by 
 the statute of ii Geo. III., ch. 20, are empowered to renew in hia 
 right, under the directions of the court of chancery, any lease 
 for lives or years, and apply the profits of such renewal for the 
 benefit of such lunatic, his heirs or executors." 
 
 The case of a feme-covert is somewhat different. She may 
 purchase an estate without the consent of her husband, and the 
 conveyance is good during the coverture, till he avoids *it [*293 
 by some act declaring his dissent. And, though he does nothing 
 to avoid it, or even if he actually consents, the feme-covert her- 
 self may, after the death of her husband, waive or disagree to the 
 
 of understanding is not, of itself, any objection to the validity of a contract, 
 if the capacity remains to see things in their true relations, and to form 
 correct conclusions." " When it appears that a grantor has not strength of 
 mind, and reason to understand the nature and consequences of making a 
 deed, it may be avoided on the ground of insanity." (See 20 Fed. Rep. 756.) 
 It is generally held that the deed of an insane person is not void, but only 
 voidable. (79 Ind. 458 ; 37 N. J. L. 108 ; 52 Md. 602 ; see 49 Mich. 192.) 
 
 'See ante, p. 183, note 6. 'See ante, p. 70, note 4. 
 
 ' The term " committee " is used technically to denote the guardian or 
 guardians appointed over an insane person by the court of chancery, after a 
 judicial investigation has been made to ascertain the existence of insanity. 
 The chief duties and functions of the committee are to manage the property of 
 the insane person with prudence, and a due regard to his interests ; to keep 
 available funds profitably invested, etc. ; and in the discharge of these duties, 
 they act constantly under the supervision and control of the court. The 
 powers of the committee, in the disposition and management of the lunatic's 
 lauds, are to a large extent governed by statute, both in England and in this 
 country. In some States the committee is appointed by the court of probate. 
 (See Buswell on Insanity, §§ 82-115.) 
 
440 OF TITLE B Y ALIEN A TION. 
 
 same : nay, even her heirs may waive it after her, if she dies be- 
 fore her husband, or if in her widowhood she does ncthing to ex- 
 press her consent or agreement. But the conveyance or other 
 contract of a feme-covert (except by some matter of record) is ab- 
 solutely void, and not merely voidable ; and therefore cannot be 
 affirmed or made good by any subsequent agreement.* 
 
 The case of an alien born is also peculiar. For he may pur- 
 chase any thing ; but after purchase he can hold nothing except 
 a lease for years of a house for convenience of merchandise, in 
 case he be an alien friend ; all other purchases (when found by 
 an inquest of office) being immediately forfeited to the crown.' 
 
 Papists, lastly, and persons professing the popish religion, and 
 neglecting to take the oath prescribed by statute i8 Geo. III., ch. 
 60, within the time limited for that purpose, are by statute 1 1 & 
 12 Wm. III., ch. 4, disabled to purchase any lands, rents, or here- 
 ditaments ; and all estates made to their use, or in trust for them, 
 are void." 
 
 II. We are next, but principally, to inquire, how a man may 
 aliene or convey ; which will lead us to consider the several 
 modes of conveyance. 
 
 In consequence of the admission of property, or the giving a 
 separate right by the law of society to those things which by the 
 law of nature were in common, there was necessarily some means 
 to be devised, whereby that separate right or exclusive property 
 *294] should be originally acquired ; *which, we have more than 
 once observed, was that of occupancy or first possession. But 
 this possession, when once gained, was also necessarily to be 
 continued ; or else, upon one man's dereliction of the thing he 
 had seized, it would again become common, and all those mis- 
 chiefs and contentions would ensue, which property was intro- 
 duced to prevent. For this purpose therefore of continuing the 
 possession, the municipal law has established descents and alien- 
 ations : the former to continue the possession in the heirs of the 
 proprietor, after his involuntary dereliction of it by his death ; the 
 latter to continue it in those persons to whom the proprietor, by 
 
 ' As to the present state of the law upon this subject, see ante, p. IS4> 
 note 18. 
 
 ' The rules in regard to the right of aliens to acquire and transfer prop 
 erty, have been already stated. (See ante, p. 119, note 2.) 
 
 1° These disabilities are now removed. 
 
OF ALIENA TION B Y DEED. 441 
 
 his own voluntary act, should choose to relinquish it iii his life- 
 time. A translation, or transfer, of property being thus ad- 
 mitted by law, it became necessary that this transfer should be 
 properly evidenced : in order to prevent disputes, either about 
 the fact, as whether there was any transfer at all ; or concerning 
 the persons, by whom and to whom it was transferred ; or with 
 regard to the subject-matter, as what the thing transferred con- 
 sisted of ; or, lastly, with relation to the mode and quality of the 
 transfer, as for what period of time (or, in other words, for what 
 estate and interest) the conveyance was made. The legal evi- 
 dences of this translation of property are called the common as- 
 surances of the kingdom ; whereby every man's estate is assured 
 to him, and all controversies, doubts, and difficulties are either 
 prevented or removed. 
 
 These common assurances are of four kinds: i. By matter 
 in pais, or deed; which is an assurance transacted between two 
 or more private persons in pais, in the country; that is (accord- 
 ing to the old common law), upon the very spot to be transferred. 
 2. By matter of record, or an assurance transacted only in the 
 king's public courts of record. 3. By special custom, obtaining 
 in some particular places, and relating only to some particular 
 species of property. Which three are such as take effect during 
 the life of the party conveying or assuring. 4. The fourth 
 takes no effect till after his death ; and that is by devise, con- 
 tained in his last will and testament. We shall treat of each in 
 its order. 
 
 CHAPTER XX. 
 
 [BL. COMM. — BOOK II. CH. XX.] 
 
 Of Alienation by Deed* 
 
 In treating of deeds I shall consider, first, their general na- 
 ture : and, next, the several sorts or kinds of deeds, with their 
 respective incidents. And in explaining the former, I shall ex- 
 amme, first, what a deed is ; secondly, its requisites ; and thirdly, 
 How it may be avoided. 
 
 • Comprehensive statutes have recently been passed in England, in regard 
 10 conveyancing, changing in many ways the rules of the common-law. (See 
 44 & 45 Vict. c. 41; 45 & 46 id. c. 39. 
 
442 OF ALIENA TION B V DEED. 
 
 I. First, then, a deed is a writing sealed and delivered by the 
 parties. It is sometimes called a charter, carta, from its mate- 
 rials ; but most usually when applied to the transactions of private 
 subjects, it is called a deed, in \^2,.'iva. factum, xar' Equ^i^v, because 
 it is the most solemn and authentic act that a man can possibly 
 perform, with relation to the disposal of his property ; and there- 
 fore a man shall always be estopped by his own deed, or not per- 
 mitted to aver or prove any thing in contradiction to what he has 
 once so solemnly and deliberately avowed. If a deed be made by 
 more parties than one, there ought to be regularly as many 
 copies of it as there are parties, and each should be cut or in- 
 dented (formerly in acute angles instar dentium, like the teeth 
 of a saw, but at present in a waving line) on the top or side, to 
 tally or correspond with the other ; which deed, so made, is called 
 an indenture. Formerly, when deeds were more concise than 
 at present, it was usual to write both parts on the same piece of 
 parchment, with some word or letters of the alphabet written 
 between them ; through which the parchment was cut, either in 
 a straight or indented line, in such a manner as to leave half the 
 *296] word on *one part and half on the other. Deeds thus 
 made were denominated syngrapha by the canonists ; and with 
 us chirographa, or hand-writings ; the word cirographum or 
 cyrographum being usually that which is divided in making the 
 indenture : and this custom is still preserved in making out the 
 indentures of a fine, whereof hereafter. But at length, indenting 
 only has come into use, without cutting through any letters at 
 all ; and it seems at present to serve for little other purpose, than 
 to give name to the species of the deed. When the several 
 parts of an indenture are interchangeably executed by the sev- 
 eral parties, that part or copy which is executed by the grantor 
 is usually called "Ca.^ original, and the r&st2iX& counterparts : though 
 of late it is most frequent for all the parties to execute every 
 part, which renders them all originals. A deed made by one 
 party only is not indented, h\xt polled or shaved quite even ; and 
 therefore called a deed-poll, or a single deed.^ 
 
 1 The chief distinction now between an indenture and a deed-poll is, that 
 the former purports to be the act of both parties, the latter only of the 
 grantor. A deed-poll would ordinarily commence in the following way :— 
 " Know all men by these presents, that I, A. B., in consideration of 
 dollars, to me paid by C. D ., &c., do give, grant, bargain, and 
 
OF ALIEN A TION B Y DEED. 443 
 
 II. We are in the next place to consider the requisites of a 
 deed. 'Y\xt first of which is, that there be persons able to con- 
 tract and be contracted with for the purposes intended by the 
 deed : and also a thing, or subject-matter to be contracted for ; 
 all which must be expressed by sufficient names. So as in 
 every grant there must be a grantor, a grantee, and a thing 
 granted ; in every lease a lessor, a lessee, and a thing demised. 
 
 Secondly, the deed must be founded upon good and sufficient 
 consideration. Not upon a usurious contract ; nor upon fraud 
 and collusion, either to deceive purchasers bona fide, or just and 
 lawful creditors ; any of which bad considerations will vacate the 
 deed, and subject such persons, as put the same in use, to for- 
 feitures, and often to imprisonment. A deed also, or other 
 grant, made without any consideration, is, as it were, of no 
 effect : for it is construed to enure, or to be effectual, only to the 
 use of the grantor himself.^ The consideration may be either 
 
 sell unto the said C. D. and his heirs all that parcel of land, &c." An inden- 
 ture would begin in this form : " This Indenture, made the day 
 
 of , in the year , between A. B. of the first part, and C. D. of 
 
 the second part, WITNESSETH, that the said A. B., for the consideration of 
 
 dollars, etc., doth give, grant, bargain, and sell unto the said C. D., 
 
 &c." An indenture has the date at the beginning, a deed-poll at the end. 
 An actual indenting of a deed is no longer practised. 
 
 ' But this was not true with reference to common law conveyances, as 
 feoffments, which were effectual to convey a valid title, though made without 
 consideration. But this mode of conveyance is no longer used, so that the 
 exception is of no practical importance. 
 
 It is the general rule in the United States, that where an acknowledgment 
 of the receipt of a consideration is contained in a deed, such a recital will 
 prevent any use or trust from resulting to the grantor. It operates as an 
 estoppel upon the parties, precluding them from impeaching the validity of 
 the deed as an effectual conveyance. When such an acknowledgment is 
 made, it is not, therefore, competent to prove that no consideration was in 
 fact paid, for the purpose of destroying the effect of the deed in conveying a 
 title. [Grout v. Townsend, 2 Hill, 554.) But for the purpose of recovering 
 the purchase-money, or damages for breach of covenants in the deed, the 
 actual consideration may be shown to be different from the consideration 
 acknowledged. {Bank of U. S. v. Housman, 6 Paige, 526 ; see 6 Gray, 511 ; 
 112 U. S. 423; 2 Barb. Ch. 232.) If no consideration be expressed in the 
 deed, the real consideration may be proved by appropriate evidence. Thus, 
 
 where the consideration was stated to be " dollars," testimony was allowed 
 
 to be introduced to prove the amount. {Wood v. Beach, 7 Vt. 522, 528.) 
 Nor is it necessary that, in acknowledging a consideration in the deed, the 
 sum thereof should be stated. Thus, the words, "for value received," have 
 
444 OF ALIENA TION B Y DEED. 
 
 *297] *a good or a valuable one. A good consideration is such 
 as that of blood, or of natural love and affection, when a man 
 grants an estate to a near relation ; being founded on motives of 
 generosity, prudence, and natural duty ; a valuable consideration 
 is such as money, marriage, or the like, which the law esteems 
 an equivalent given for the grant : and is therefore founded 
 in motives of justice. Deeds made upon good consideration 
 only, are considered as merely voluntary, and are frequently set 
 aside in favor of creditors, and bona fide purchasers.' 
 been held to sufficiently indicate the consideration. {Jackson v. Alexander, 
 3 Johns. 484.) So of the words, "a certain sum in hand paid." [Jackson v, 
 Schoonmaker, 2 Johns. 230 ; see 44 & 45 Vict. c. 41, s. 55.) 
 
 ' The subject of fraudulent conveyances here referred to, is one of 
 much importance. Such conveyances are declared void by two English 
 statutes, passed in the reign of Queen Elizabeth, which have been substan- 
 tially reenacted in most, if not all, the States of this country. The first of 
 these is the statute 13 Eliz., ch. 5, and provides that all fraudulent convey- 
 ances, gifts, or alienations of lands or goods, whereby creditors might be in any- 
 wise disturbed, hindered, delayed, or defrauded of their just rights, are ren- 
 dered utterly void ; but the Act does not extend to any estate or interest in 
 lands, on good consideration and bona fide conveyed to any person not having 
 notice of such fraud. The phrase, " good consideration," as used in this 
 exception, is not confined to the restricted technical signification stated in 
 the text, but includes both such considerations, and such as are valuable. 
 But if this consideration is only " good," in the restricted sense of the term 
 (i. e., upon natural love and affection), the conveyance is termed " volun- 
 tary ; " and if the grantor be under indebtedness so that the disposal of the 
 pi'operty would injuriously compromit the interests of creditors, a fraudulent 
 intent is ordinarily presumed from the fact of conveyance, and the deed held 
 to be void. (See Carpenter v. Roe, 10 N. Y. 227 ; Dent v. Ferguson, 
 132 U. S. 50; Kehr v. Smith, 20 Wall. 31; Fox v. Mayer, 54 N. Y. 
 125.) But a voluntary conveyance is not void by reason of a trifling indebt- 
 edness, which the grantor retains ample means to pay ; as if he owns a large 
 surplus above the amount of his debts, and disposes of a moderate portion 
 of this surplus. {Cole v. Tyler, 65 N. Y. 73 ; Carr v. Breese, 81 N. Y. 584 ; see 
 106 U. S. 260.) There will then be no sufficient ground to presume fraud. 
 Conveyances without any consideration whatever are also termed " volun- 
 tary," and are subject to the same principles. They are mere gifts, and it is 
 a reasonable principle enforced at law, that a " man must be just before he 
 is generous." 
 
 The other statute is the statute 27 Eliz., ch. 4. It provides that the con- 
 veyance of any interest in lands, for the intent and purpose to defraud and 
 deceive bona fide purchasers of the land f c r a good consideration, shall be 
 utterly void. This differs from the other, in protecting purchasers instead 
 of creditors J but it, in like manner, declares valid any previous conveyance 
 made, upon valuable consideration, to a bona fide purchaser. Under both 
 
OF ALIEN A TION B Y DEED. 445 
 
 Thirdly ; the deed must be written, or I presume printed, 
 for it may be in any character or any language ; but it must be 
 upon paper or parchment. For if it be written on stone, board, 
 linen, leather, or the like, it is no deed. Wood or stone may be 
 tnce durable, and linen less liable to rasures ; but writing on 
 paper or parchment unites in itself, more perfectly than any 
 other way, both those desirable qualities : for there is nothing 
 else so durable, and at the same time so little liable to alteration: 
 nothing so secure from alteration, that is at the same time so 
 durable. It must also have the regular stamps imposed on it 
 by the several statutes^for the increase of the public revenue ; 
 else it cannot be given in evidence. Formerly many convey- 
 ances were made by parol, or word of mouth only, without 
 writing ; but this giving a handle to a variety of frauds, the stat- 
 ute 29 Car. II., ch. 3, enacts, that no lease, estate or interest in 
 lands, tenements, or hereditaments, made by livery of seizin, or 
 by parol only (except leases, not exceeding three years from the 
 making, and whereon the reserved rent is at least two-thirds of 
 the real value), shall be looked upon as of greater force than a 
 lease or estate at will ; nor shall any assignment, grant, or sur- 
 render of any interest in any freehold hereditaments be valid . 
 unless in both cases the same be put in writing, and signed by 
 the party granting, or his agent lawfully authorized in writing.^ 
 Fourthly ; the matter written must be legally or orderly set 
 forth : that is, there must be words sufficient to specify the 
 agreement and bind the parties ; which *sufficiency must [*298 
 be left to the courts of law to determine. For it is not abso- 
 lutely necessary in law to have all the formal parts that are 
 usually drawn out in deeds, so as there be sufficient words to 
 declare clearly and legally the party's meaning. But, as these 
 statutes, the conveyance will be deemed valid as between the immediate 
 parties thereto, and can be invalidated and set aside only in favor of credit- 
 ors and purchasers. It will be binding upon the grantor and his heirs. 
 ^Malin v. Garnsey, 16 Johns. 189 ; Waterbury v. Westervelt, 9 N. Y. 598.) 
 
 * By a later English statute, it has been provided that the conveyances 
 enumerated in the text shall be made by deed, and not merely in writing. 
 (Stat. 8 & 9 Vict., ch. 106.) In this country the English Statute of Frauds 
 has been substantially reenacted in the several States, or has been 
 assumed to be in force, though with minor differences in detail. Statute! 
 requiring certain forms of conveyances to be by deed, have also been en- 
 acted. Thus, in New York, every grant of a freehold estate must be by deed, 
 sealed by the grantor or his lawful agent, (i R. S. 738, § 137.) 
 
446 OF ALIEN A TION B Y DEED. 
 
 formal and orderly parts are calculated to convey that meaning 
 in the clearest, distinctest, and most effectual manner, and have 
 been well considered and settled by the wisdom of successive 
 ages, it is prudent not to depart from them without good reason 
 or urgent necessity ; and therefore I will here mention them in 
 their usual order. 
 
 1. T)\& premises maybe used to set forth the number and 
 names of the parties, with their additions or titles. They also 
 contain the recital, if any, of such deeds, agreements, or matters 
 of fact, as are necessary to explain the reasons upon which the 
 present transaction is founded ; and herein also is set down the 
 consideration upon which the deed is made. And then follows 
 the certainty of the grantor, grantee, and thing granted. 
 
 2, 3. Next come the' habendum and tenendum. The office of 
 the habendum is properly to determine what estate or interest 
 is granted by the deed : though this may be performed, and 
 sometimes is performed, in the premises. In which case the 
 habendum may lessen, enlarge, explain, or qualify, but not totally 
 contradict or be repugnant to the estate granted in the premises.* 
 As if a grant be " to A and the heirs of his body," in the prem- 
 ises ; habendum " to him and his heirs for ever," or vice versa ; 
 here A has an estate-tail, and a fee-simple expectant thereon. 
 But, had it been in the premises " to him and his heirs ;" haben- 
 dum " to him for life," the habendum would be utterly void ; for 
 an estate of inheritance is vested in him before, the habendum 
 comes, and shall not afterwards be taken away or divested by it. 
 The tenendum, " and to hold," is now of very little use, and is 
 •299] only kept in by custom. It was sometimes formerly *used 
 to signify the tenure by which the estate granted was to be 
 holden ; viz. " tenendum, per servitium militare, in burgagio, in 
 libera socagio, &c." But, all these being now reduced to free 
 and common socage, the tenure is never specified. Before the 
 statute of quia emptores, 18 Ed. I., it was also sometimes used 
 to denote the lord of whom the land should be holden : but that 
 statute directing all future purchasers to hold not of the immedi- 
 ate grantor, but of the chief lord of the fee, this use of the 
 
 ' The habendum may enlarge and explain, if it be not inconsistent witli 
 the premises of the deed ; but if it purports to control the estate granted, 
 and is inconsistent with it, it is void. {Bird v. Ireland, 3 Wend. 99 p Moti 
 V. Richtmyer, 57 N. Y. 49.) 
 
OF ALIENA TICN B Y DEED. 447 
 
 Unenduvt hath been also antiquated ; though for a long time aftet 
 we find it mentioned in ancient charters, that the tenements 
 shall be holden de capitalibus dominis feodi ; but as this ex- 
 pressed nothing more than the statute had already provided 
 for, it gradually grew out of use. 
 
 4. Next follow the terms of stipulation, if any, upon which 
 the grant is made : the first of which is the reddendum or reserv- 
 ation, whereby the grantor doth create or reserve some new 
 thing to himself out of what he had before granted, as " render- 
 ing therefor yearly the sum of ten shillings, or a pepper-corn, 
 or two days' ploughing, or the like." Under the pure feudal 
 system, this render, reditus, return or rent, consisted in chivalry, 
 principally of military services ; in villeinage, of the most slavish 
 offices ; and in socage, it usually consists of money, though it 
 may still consist of services, or of any other certain profit. To 
 
 ' make a reddendum good, if it be of anything newly created by 
 the deed, the reservation must be to the grantors, or some, or 
 one of them, and not to any stranger to the deed. But if it be 
 of ancient services or the like, annexed to the land, then the 
 reservation may be to the lord of the fee. 
 
 5. Another of the terms upon which a grant may be made 
 is a condition ; which is a clause of contingency, on the hap- 
 pening of which the' estate granted may be defeated : as " pro- 
 vided always, that if the mortgagor shall pay the mortgagee 
 *50o/. upon such a day, the whole estate granted shall [*300 
 determine "; and the like. 
 
 6. Next may follow the clause of warranty; whereby the 
 grantor doth, for himself and his heirs, warrant and secure to 
 the grantee the estate so granted. By the feudal constitution, 
 if the vassal's title to enjoy the feud was disputed, he might 
 vouch, or call the lord or donor to warrant or insure his gift ; 
 which if he failed to do, and the vassal was evicted, the lord was 
 bound to give him another feud of equal value in recompense. 
 And so, by our ancient law, if before the statute of quia emptores 
 a man enfeoffed another in fee, by the feudal verb dedi, to hold 
 of himself and his heirs by certain services ; the law annexed a 
 warranty to this grant, which bound the feoffor and his heirs, to 
 whom the services (which were the consideration, and equiva- 
 lent for the gift), were originally stipulated to be rendered. Or 
 if a man and his ancestors had immemorially holden land of 
 
44 8 OF ALIEN A TION B Y DEED. 
 
 another and his ancestors by the service of homage (which was 
 called homage auncestrel), this also bound the lord to warranty ; 
 the homage being an evidence of such a feudal grant. And. 
 upon a similar principle, in case, after a partition or exchange 
 of lands of inheritance, either party or his hejrs be evicted of 
 his share, the other and his heirs are bound to warranty, because 
 they enjoy the equivalent. And so, even at this day, upon a 
 gift in tail or lease for life, rendering rent, the donor or lessoi 
 and his heirs (to whom the rent is payable) are bound to warrant 
 the title. But in a feoffment in fee, by the verb dedi, since the 
 statute of quia emptores, the feoffor only is bound to the implied 
 warranty, and not his heirs ; because it is a mere personal con- 
 tract on the part of the feoffor, the tenure (and of course the 
 ancient services) resulting back to the superior lord of the fee. 
 And in other forms of alienation, gradually introduced since that 
 *!?01] statute, *no warranty whatsoever is implied; they bearing 
 no sort of analogy to the original feudal donation. And there- 
 fore in such cases it became necessary to add an express clause 
 of warranty to bind the grantor and his heirs ; which is a kind 
 of covenant real, and can only be created by the verb warrantizo 
 or warrant. 
 
 These express warranties were introduced, even prior to the 
 ' statute of quia emptores, in order to evade the strictness of the 
 feudal doctrine of non-alienation without the consent of the heir. 
 For, though he, at the death of his ancestor, might have entered 
 on any tenements that were aliened without his concurrence, 
 yet if a clause of warranty was added to the ancestor's grant, 
 this covenant descending upon the heir insured the grantee ; 
 not so much by confirming his title, as by obliging such heir to 
 yield him a recompense in lands of equal value ; the law, in favor of 
 alienations, supposing that no ancestor would wantonly disinherit 
 his next of blood ; and therefore presuming that he had received 
 a valuable consideration, either in land or in money, which had 
 purchased land, and that this equivalent descended to the heir 
 together with the ancestor's warranty. So that when either an 
 ancestor, being the rightful tenant of the freehold, conveyed the 
 land to a stranger and his heirs, or released the right in fee-sim- 
 ple to one who was already in possession, and superadded a war- 
 ranty to his deed, it was held that such warranty not only bound 
 the warrantor himself to protect and assure the tit'e of the war- 
 
OF ALIEN A TION B Y DEED. 449 
 
 rantee, but it also bound his heir ; and this, whether that war- 
 ranty was lineal or collateral to the title of the land. Lineal 
 warranty was, where the heir derived, or might by possibility 
 have derived, his title to the land warranted, either from or 
 through the ancestor who made the warranty ; as where a father, 
 or an elder son in the life of the father, released to the disseizor 
 of either themselves or the grandfather, with warranty, this was 
 lineal to the younger son. Collateral warranty was where the 
 heir's title to the land neither was, nor could have been derived 
 from the *warranting ancestor : as where a younger [*302 
 brother released to his, father's disseizor, with warranty, this was 
 collateral to the elder brother. But where the very conveyance 
 to which the warranty was annexed immediately followed a dis- 
 seizin, or operated itself as such (as, where a father, tenant for 
 years, with remainder to his son in fee, aliened in fee-simple 
 with warranty), this, being in its original manifestly founded on 
 the tort or wrong of the warrantor himself, was called a warranty 
 commencing by disseizin ; and being too palpably injurious to be 
 supported, was not binding upon any heir for such tortious war- 
 rantor. 
 
 In both lineal and collateral warranty, the obligation of the 
 heir (in case the warrantee was evicted, to yield him other lands 
 in their stead) was only on condition that he had other sufficient 
 lands by descent from the warranting ancestor. But though 
 without assets, he was not bound to insure the title of another, 
 yet in case of lineal warranty, whether assets descended or not, 
 the heir was perpetually barred from claiming the land him- 
 self; for if he could succeed in such claim, he would then 
 gain assets by descent (if he had them not before), and must 
 fulfil the warranty of his ancestor ; and the same rule was with 
 Ies6 justice adopted also in respect of collateral warranties which 
 likewise (though no assets descended) barred the heir of the 
 warrantor from claiming the land by any collateral title ; upon 
 the presumption of law that he might hereafter have assets by 
 descent either from or through the same ancestor. The incon- 
 venience of this latter branch of the rule was felt very early, 
 when tenants by the curtesy took upon them to aliene their lands 
 with warranty ; which collateral warranty of the father descend- 
 ing upon the son (who was the heir o^ both his parents), barred 
 nim from claiming his maternal inheritance ; to remedy which 
 39 
 
450 OF ALIENA TION B Y DEED. 
 
 the statute of Gloucester, 6 Edw. I., ch. 3, declared, that such 
 warranty should be no bar to the son, unless assets descended 
 from the father. It was afterwards attempted in 50 Edw. Ill, 
 *303] *to make the same provision universal, by enacting, that 
 no collateral warranty should be a bar, unless where assets de- 
 scended from the same ancestor ; but it then proceeded not 
 to effect. However, by the statute 1 1 Hen. VII., ch. 20, not- 
 withstanding any alienation with warranty by tenant in dower, 
 the heir of the husband is not barred, though he be also heir to 
 the wife. And by statute 4 and 5 Ann., ch. 16, all warranties 
 by any tenant for life shall be void against those in remainder or 
 reversion ; and all collateral warranties by any ancestor who has 
 no estate of inheritance in possession, shall be void against his 
 heir. By the wording of which last statute it should seem that 
 the legislature meant to allow, that the collateral warranty of 
 tenant in tail in possession, descending (though without assets), 
 upon a remainder-man or reversioner, should still bar the re- 
 mainder or reversion. For though the judges, in expounding 
 the statute de donis, held that, by analogy to the statute of Glou- 
 cester, a lineal warranty by the tenant in tail without assets should 
 not bar the issue in tail, yet they held such warranty with assets 
 to be a sufficient bar : which was therefore formerly mentioned as 
 one of the ways whereby an estate-tail might be destroyed ; it 
 being indeed nothing more in effect than exchanging the lands en- 
 tailed for others of equal value. They also held, that collateral war- 
 ranty was not within the statute de donis : as that act was prin- 
 cipally intended to prevent the tenant in tail from disinheriting 
 his own issue ; and therefore collateral warranty (though with- 
 out assets) was allowed to be, as at common law, a sufficient bar 
 of the estate-tail and all remainders and reversions expectant 
 thereon. And so it still continues to be notwithstanding the 
 statute of Queen Anne, if made by tenant in tail in possession ; 
 who therefore may now, without the forms of a fine or recovery, 
 in some cases make a good conveyance in fee-simple, by super- 
 adding a warranty to his grant ; which, if accompanied with as- 
 sets, bars his own issue, and without them bars such of his heirs 
 as may be in remainder or reversion.' 
 
 6 The doctrine of lineal and collateral warranties was abolished in Eng- 
 land, by the statute 3 & 4 WilU IV., ch. 27 & 74. It has never prevailed in 
 American jurisprudence. 
 
OF ALIEN A TION B Y DEED. 45 1 
 
 7. *After warranty usually follow covenants, or con- [*304 
 ventions, which are clauses of agreement contained in a deed, 
 whereby either party may stipulate for the truth of certain facts, 
 or may bind himself to perform, or give, something to the other.' 
 Thus the grantor may covenant that he hath a right to convey; 
 or for the grantee's quiet enjoyment ; or the like ; the grantee 
 may covenant to pay his rent, or keep the premises in repair, 
 &c. If the covenantor covenants for himself and his heirs, it is 
 then a covenant real, and descends upon the heirs ; who are 
 bound to perform it, provided they have assets by descent, but 
 not otherwise ; if he covenants also for his executors and admin- 
 istrators, his personal assets, as well as his real, are likewise 
 pledged for the performance of the covenant ; which makes such 
 covenant a better security than any warranty.' It is also in some 
 respects a less security, and therefore more beneficial to the 
 grantor ; who usually covenants only for the acts of himself and 
 his ancestors, whereas a general warranty extends to all man- 
 
 ' The most usual covenants, in American conveyances, are the following : 
 (l) That the grantor is lawfully seized of the premises described in the 
 deed. (2) That he has good right and lawful authority to sell and convey 
 the same. Covenants of seizin and of good right to convey, are virtually of the 
 same effect. (3) That the premises are free from incumbrances. An incum- 
 brance is defined as " every right to, or interest in the land, to the diminution 
 of the value of the land, but consistent with the passage of the fee by the 
 conveyance." {Prescott v. Trueman, ^yi-is,^. 627.) (4) That the grantor 
 will secure to the grantee the peaceable enjoyment of the premises. (5) 
 That the grantor will warrant the title against hostile claims. The covenant 
 of warranty is the broadest and most important of all. If the grantee is 
 evicted from the land by one having a paramount title, he is entitled to 
 obtain recompense from the grantor, or his representatives, for the loss thus 
 sustained. (6) There is a further covenant, known as the covenant for 
 fiirther assurance, which has been often employed in English deeds, and to 
 some extent, also, in this country ; this binds the grantor to a specific per- 
 formance of his agreement to make a good title, and does not merely render 
 him responsible for damages in case of breach. It is generally held that the 
 first three covenants are broken immediately, if at all, and do not run with 
 the land, but the law of some States is to the contrary. The last three relate 
 to the future, and are designed to guard against some future act or result. 
 (See 113 N. Y. 81 ; 100 N. Y. 471 ; 61 Vt. 298 ; 61 N. H. 23 ; 34 Fed. Rep. 
 853.) In English deeds most of these covenants are now implied. (44 & 45 
 Vict. c. 41.) 
 
 ' [The executors and administrators are bound by every covenant, without 
 being named, unless it is such a covenant as is to be performed personally 
 by the covenantor and there has been no breach before his death.] 
 
452 OF ALIENA TION B Y DEED. 
 
 kind. For which reasons the covenant has in modern practice 
 totally superseded the other. 
 
 8. Lastly, comes the conclusion, which mentions the execution 
 and date of the deed, or the time of its being given or executed, 
 either expressly, or by reference to some day and year before 
 mentioned. Not but a deed is good, although it mention no 
 date : or hath a false date ; or even if it hath an impossible date, 
 as the thirtieth of February ; provided the real day of its being 
 dated or given, that is delivered, can be proved. 
 
 I proceed now to the fifth requisite for making a good deed : 
 the reading of it. This is necessary, wherever any of the parties 
 desire it ; and, if it be not done on his request, the deed is void 
 as to him. If he can, he should read it himself : if he be blind 
 or illiterate, another must read it to him. If it be read falsely, 
 it will be void ; at least for so much as is misrecited : unless it 
 be agreed by collusion that the deed shall be read false, on pur- 
 pose to make it void ; for in such case it shall bind the fraudu- 
 lent party .° 
 
 *305] *Sixthly, it is requisite that the party, whose deed it 
 is, should seal^" and now in most cases I apprehend, should iign 
 it also." The use of seals, as a mark of authenticity to letters 
 
 ° Although the grantor be very ignorant and illiterate, yet his deed will 
 not be void for omission to read it to him, unless he requested such reading. 
 If he makes such request, and the deed is read falsely in any material points, 
 or its contents falsely stated, it is void. (Hallenbeck v. Dewitt, 2 Johns. 
 404.) But every grantor is presumed to know the contents of a deed exe- 
 cuted by him, until proof to the contrary is adduced. And if he can read, he 
 cannot object, after execution, that he was mistaken as to the terms of the 
 conveyance. (See Jackson v. Cray, 12 Johns. 427; Jackson-v. Hayner, 12 
 Johns. 469; Eaton v. Eaton, 37 N. J. L. 108 ; Twamblyv. Ricard. 130 Mass. 259.) 
 
 '" In this country, the common-law seal is required in the New England 
 States, New York, New Jersey, and a few other States ; but in a number of 
 the Western and Southern States, a mere scroll or circle made with the pen 
 upon the deed, is deemed a sufficient substitute for a seal. A common-law 
 seal is defined as an impression upon wax or some tenacious substance, 
 whether it be a wafer or any other paste or matter sufficiently tenacious to 
 adhere and receive an impression. (See 106 U. S. 548 ; 5 Johns. 239.) A 
 single seal may serve for several grantors in the same deed, if adopted by 
 them as such, and if it appear by the deed to be the seal of all. (See 
 Mackay v. Bloodgood, 9 Johns. 285; also 5 Pick. 496; 45 O. St. 664.) 
 
 ^^ Signing is required in all the United States, with but very few excep- 
 tions ; and even in those States where it is not absolutely necessary, it is 
 doubtless invariably pracised. In some States the deed is required to bf 
 
OF ALIEN, i TION B Y DEED. 45 3 
 
 and other instruments in writing, is extremely ancient. We read 
 of it among the Jews and Persians in the earliest and most sa- 
 cred records of history. And in the book of Jeremiah there is a 
 very remarkable instance, not only of an attestation by seal, but 
 also of the other usual formalities attending a Jewish purchasc(<^). 
 In the civil law also, seals were the evidence of truth ; and were 
 required, on the part of the witnesses at least, at the attestation 
 of every testament. But in the times of our Saxon ancestors 
 they were not much in use in England. For though Sir Edward 
 Coke relies on an instance of King Edwin's making use of a 
 seal about a hundred years before the Conquest, yet it does not 
 follow that this was the usage among the whole nation : and per- 
 haps the charter he mentions may be of doubtful authority, from 
 this very circumstance, of being sealed ; since we are assured by 
 all our ancient historians, that sealing was not then in common 
 use. The method of the Saxons was for such as could write to 
 subscribe their names, and whether they could write or not, to 
 affix the sign of the cross ; which custom our illiterate vulgar 
 do, for the most part, to this day keep up ; by signing a cross 
 for their mark, when unable to write their names. And indeed 
 this inability to write, and therefore making a cross in its stead, 
 is honestly avowed by Caedwalla, a Saxon king, at the end of 
 one of his charters. In like manner, and for the same unsur- 
 mountable reason, the Normans, a brave but *illiterate [*306 
 nation, at their first settlement in France, used the practice of 
 sealing only, without writing their names : which custom con- 
 tinued, when learning made its way among them, though the 
 reason for doing it had ceased ; and hence the charter of Edwarc 
 the Confessor to Westminster-abbey, himself being brought up 
 in Normandy, was witnessed only by his seal, and is generally 
 thought to be the oldest sealed charter of any authenticity in 
 England. At the Conquest, the Norman lords brought over into 
 this kingdom their own fashions ; and introduced waxen seals 
 only, instead of the English method of writing their names, and 
 signing with the sign of the cross. And in the reign of Edward 
 I. every freeman, and even such of the more substantial villeins 
 as were fit to be put upon juries, had their distinct particular 
 swijcrjferf— that is, signed at the end; and a signature in any o'her place 
 would then be ineffectual. 
 
 (a) Jeremiah, ch. xxxii. 9-11. 
 
454 OF ALIENA TION B Y DEED. 
 
 seals. The impressions of these seals were sometimes a knight 
 on horseback, sometimes other devices : but coats of arms were 
 not introduced into seals, nor indeed into any other use, till 
 about the reign of Richard the First, who brought them from the 
 crusade in the Holy Land ; where they were first invented and 
 painted on the shields of the knights, to distinguish the variety of 
 persons of every Christian nation, who resorted thither, and who 
 could not, when clad in complete steel, be otherwise known or 
 ascertained. 
 
 The neglect of signing, and resting, only upon the authen- 
 ticity of seals, remained very long among us; for it was held in 
 all our books that sealing alone was sufficient to authenticate a 
 deed : and so the common form of attesting deeds, — " sealed and 
 delivered," continues to this day ; notwithstanding the statute 
 29 Car. II., ch. 3, before mentioned revives the Saxon custom, 
 and expressly directs the signing in all grants of lands, and many 
 other species of deeds : in which therefore signing seems to be 
 now as necessary as sealing, though it hath been sometimes held 
 that the one includes the other. 
 
 A seventh requisite to a good deed is, that it be delivered by 
 the party himself or his certain attorney, which therefore is 
 *307] *also expressed in the attestation; " sealed diXiA delivered!' 
 A deed takes effect only from this tradition or delivery ; for if 
 the date be false or impossible, the delivery ascertains the time 
 of it. And if another person seals the deed, yet if the party de- 
 livers it himself, he thereby adopts the sealing, and by a parity 
 of reason the signing also, and makes them both his own. A 
 delivery may be either absolute, that is, to the party or grantee 
 himself ; or to a third person, to hold till some conditions be per- 
 formed on the part of the grantee : in which last case it is not 
 delivered as a deed, but as an escrow ; that is, as a scroll or 
 writing, which is not to take effect as a deed till the conditions 
 be performed ; and then it is a deed to all intents and purposes. 
 
 The last requisite to the validity of a deed is the attestation, 
 or execution of it in the presence of witnesses; though this is nec- 
 essary, rather for preserving the evidence, than for constituting 
 the essence of the deed." Our modern deeds are in reality noth> 
 
 *^ Attestation by one or more witnesses is generally required in the 
 United States ; but while in some States it is made essential to the validity 
 
OF ALIEN A TION B Y DEED. 45 5 
 
 ing more than an improvement or amplification of the brevia 
 testata mentioned by the feudal writers, which were written memo- 
 randums, introduced to perpetuate the tenor of the conveyance 
 and investiture, when grants by parol only become the founda- 
 tion of frequent dispute and uncertainty. To this end they reg- 
 istered in the deed the persons who attended as witnesses, which 
 was formerly done without their signing their names (that not 
 being always in their power), but they only heard the deed read ; 
 and then the clerk or scribe added their names, in a sort of 
 menr.orandum : thus : ' " his testibus, Johanna Moore, Jacobo 
 Smith., et aliis, ad hqnc rem convocatis" This, like all other 
 solemn transactions, was originally done only coram paribus, 
 and frequently when assembled in the court-baron, hundred, or 
 county-court ; which was then expressed in the attestation, teste 
 comitatu, hundredo, &c. Afterwards the attestation of other 
 witnesses was allowed, the trial in *case of a dispute be- [*308 
 ing still reserved to the/arr^j ; with whom the witnesses (if more 
 than one) were associated and joined in the verdict : till thatalso 
 was abrogated by the statute of York, 12 Edw. II., st. i, ch. 2. 
 And in this manner, with some such clause of his testibus, are 
 all old deeds and charters, particularly magna chat ta, witnessed. 
 And in the time of Sir Edward Coke, creations of nobility were 
 still witnessed in the same manner. But in the king's common 
 charters, writs or letters-patent, the style is now altered : for at 
 present the king is his own witness, and attests his letters-pa- 
 tent thus : " Teste meipso, witness ourself at Westminster, &c.," 
 a form which was introduced by Richard the First, but not com- 
 monly used till about the beginning of the fifteenth century ; 
 nor the clause of his testibus entirely discontinued till the reign 
 of Henry the Eighth : which was also the era of discontinuing 
 it in the deeds of subjects, learning being then revived, and the 
 faculty of writing more general ; and therefore ever since that 
 
 of the deed, in others it is only required as a formality preliminary to the 
 public record of the deed, to render it valid and binding as against subsequent 
 purchasers and incumbrancers. In these latter States the deed would be 
 valid between the parties without attestation; another formality usually 
 required in the several States, is that of acknowledgment of the deed before 
 a notary public, commissioner of deeds, or other public officer with similar 
 powers. As in the case of attestation, acknowledgment is in some States 
 necessary to render the deed valid, but in most only necessary in order thai 
 the deed may be recorded. The public record of deeds is the commonlj 
 
4S6 OF ALIEN A TION B V DEED. 
 
 time the witnesses have usually subscribed their attestations, 
 either at the bottom, or on the back of the deed. 
 
 III. We are next to consider, how a deed may be avoided, or 
 rendered of no effect. And from what has been before laid 
 down, it will follow, that if a deed wants any of the essential re 
 quisites before-mentioned; either, i. Proper parties, and a proper 
 subject-matter; 2. A good and sufficient consideration; 3. Writ- 
 ing on paper or parchment, duly stamped ; 4. Sufficient and legal 
 words, properly disposed ; 5. Reading, if desired, before the ex 
 ecution ; 6. Sealing, and, by the statute, in most cases signing 
 also ; or, 7. Delivery ; it is a void deed ab initio. It may also be 
 avoided by matter ex post facto : as, I. By rasure, interlining, or 
 other alteration in any material part : unless a memorandum be 
 made thereof at the time of the execution and attestation.'* 2. 
 By breaking off, or defacing the seal." 3. By delivering it up to 
 *309] be cancelled ; *that is, to have lines drawn over it in the 
 form of lattice-work or cancelli; though the phrase is now used 
 figuratively for any manner of obliteration or defacing it. 4. By the 
 required practice in the United States, its purpose being to apprise subse- 
 quent purcliasers and incumbrancers of the existence and contents of the 
 deed, or to affect them with constructive notice thereof, in order that the 
 deed may be valid as against them. The record is usually made in the office 
 ti the clerk of the county where the land is situated. 
 
 *' There has been much conflicting adjudication upon the point, whether 
 an alteration in a deed shall be presumed to have been made subsequently 
 to its execution, or before delivery. The former presumption would in many 
 cases render the deed void, unless proof were shown that the alterations were 
 made previous to delivery, while the latter would usually render it valid, 
 unless the fact of subsequent alteration was established by proof. The 
 tendency of adjudication, in recent times, is adverse to entertaining any pre- 
 sumption of law as to the time or intent of alteration ; these questions being 
 left to be determined by the jury upon all the evidence in the case. The 
 general rule in this country is that the burden of proof lies upon the person 
 claiming under the deed, to show that the alteration, if material and suspicious, 
 is not fraudulent or fatal. If the alteration be made by the grantee after 
 execution and be material, it avoids the deed. But if it be made by a 
 stranger, without the privity of the party, it is termed a " spoliation" and is 
 generally held not to vitiate the deed. After a transfer of the title by the 
 delivery of the deed, no subsequent alteration, or even destruction of it, will 
 operate to defeat or divest the title. (22 Wend. 388 ; 53 Wis. 36; 10 Wall. 
 26 ; 6 Gray, 439 ; 67 Pa. St. 9.) The estate having once passed, is not in 
 this way defeasible. 
 
 " [It must be an intentional breaking off or defacing by the party to whom 
 the other is bound ; for if the person bound break off or deface the seal, it 
 will not avoid the deed. {Cutis v. U. 5., I Gall. 69 ; see 6 Cow. 746.)] 
 
OF ALIEN A TION B V DEED. 45 7 
 
 disagreement of such, whose concurrence is necessary, in order 
 for the deed to stand : as the husband, where a feme-corert is 
 concerned ; an infant, or person under duress, when those disabili- 
 ties are removed ; and the like. 5. By the judgment or decree 
 of a court of judicature. This was anciently the province of the 
 court of star-chamber, and now of the chancery : when it appears 
 that the deed was obtained by fraud, force, or other foul prac- 
 tice; or is proved to be an absolute forgery. In any of these 
 cases the deed may be voided, either in part or totally, according 
 as the cause of avoidance is more or less extensive. 
 
 And, having thus explained the general nature of deeds, wc 
 are next to consider their several species, together with their 
 respective incidents. And herein I shall only examine the par- 
 tic liars of those, which from long practice and experience of 
 their efficacy, are generally used in the alienation of real estates : 
 for it would be tedious, nay infinite, to descant upon all the sev- 
 eral instruments made use of m. personal concerns, but which fall 
 under our general definition of a deed ; that is, a writing sealed 
 and delivered. The former being, principally, such as serve to 
 convey the property of lands and tenements from man to man, 
 are commonly denominated conveyances ; which are either con- 
 veyances at common law, or such as receive their force and effi 
 cacy by virtue of the statute of uses. 
 
 I. Of conveyances by the common law, some may be calif d 
 original, or primary conveyances ; which are those by means 
 whereof the benefit or estate is created or first arises ; others are 
 derivative or secondary, whereby the benefit or estate originally 
 created, is enlarged, restrained, transferred, or extinguished. 
 
 * Original conveyances are the following : i. Feoffment ;[*310 
 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: deriva- 
 tive are, 7. Release ; 8. Confirmation ; 9. Surrender ; 10. As- 
 signment; II. Defeasance. 
 
 I. A.i&o^m&n\.,feoffamentu»t, is a substantive derived from 
 the verb, to trd&o&, feoffare ox infeudare, to give one a feud ; and 
 therefore feoffment is properly donatio feudi. It is the most an- 
 cient method of conveyance, the most solemn and public, and 
 therefore the most easily remembered and proved. And it may 
 properly be defined, the gift of any corporeal hereditament to 
 another. He that so gives, or enfeoffs, is called iht feoffor; and 
 the person enfeoffed is denominated Xhe feoffee. 
 
45 8 OF ALIEN A TION B Y DEED. 
 
 This is plainly derived from, or is indeed itself ihe very mode 
 of, the ancient feudal donation ; for though it may be performed 
 by the word " enfeoff" or " grant," yet the aptest word of feoff 
 ment is, " do or dediy And it is still directed and governed by 
 the same feudal rules ; insomuch that the principal rule relating 
 to the extent and effect of the feudal grant, " tenor est qui legem 
 dat feudo" is in other words become the maxim of our law 
 with relation to feoffments, " modus legem dat donationi." And 
 therefore, as in pure feudal donations, the lord, from whom the 
 feud moved, must expressly limit and declare the continuance 
 or quantity of estate which he meant to confer, " ne quis plus 
 donasse prcesumatur quam in donatione expresserit ; " so, if one 
 grants by feoffment lands or tenements to another, and limits 
 or expresses no estate, the grantee (due ceremonies of law 
 being performed) hath barely an estate for life. For as the per- 
 sonal abilities of the feoffee were originally presumed to be the 
 immediate or principal inducements to the feoffment, the feoffee's 
 estate ought to be confined to his person, and subsist only for 
 nis life ; unless the feoffor, by express provision in the creation 
 *311] *and constitution of the estate, hath given it a longer con- 
 tinuance. These express provisions are indeed generally made; 
 for this was for ages the only conveyance, whereby our ancestors 
 were wont to create an estate in fee-simple, by giving the land 
 to the feoffee, to hold to him and his heirs for ever ; though it 
 serves equally well to convey any other estate of freehold. 
 
 But by the mere words of the deed the feoffment is by no 
 means perfected ; there remains a very material ceremony to be 
 performed, called livery of seizin ; without which the feoffee has 
 but a mere estate at will. This livery of seizin is no other 
 than the pure feudal investiture, or delivery of corporal posses- 
 sion of the land or tenement : which was held absolutely neces- 
 sary to complete the donation. " Nam feudum sine investitura 
 nulla modo constitui potuit ;" and an estate was then only perfect, 
 when, as the author of Fleta expresses it ii, our law, ''fit juris et 
 set sines conjunctio." 
 
 Investitures, in their original rise, were probably intended to 
 demonstrate in conquered countries the actual possession of the 
 lord; and that he did not grant a bare litigious right, which the 
 soldier was ill qualified to prosecute, but a peaceable and firm 
 possession. And at a time when writing was seldom practiced, a 
 
OF ALIENA TION B V DEED. 459 
 
 mere oral gift, at a distance from the spot that was given, was 
 not likely to be either long or accurately retained in the men\ory 
 of by-standers, who were very little interested in the grant. Af- 
 terwards they were retained as a public and notorious act, that 
 the country might take notice of and testify the transfer of the 
 estate ; and that such, as claimed title by other means, might 
 know against whom to bring their actions. 
 
 In all well-governed nations some notoriety of this kind has 
 been ever held requisite, in order to acquire and ascertain 
 *the property of lands. In the Roman law plenum [*312 
 dominium was not said to subsist, unless where a man had both 
 the right and the corporal possession ; which possession could not 
 be acquired without both an actual intention to possess, and an 
 actual seizin, or entry into the premises, or part of them in 
 the name of the whole. And even in ecclesiastical promotions, 
 where the freehold passes to the person promoted, corporal 
 possession is required at this day, to vest the property completely 
 in the new proprietor ; who, according to the distinction of the 
 canonists, acquires the jus ad rem, or inchoate and imperfect 
 right, by nomination and institution ; but not \ki^jus in re, or 
 complete and full right, unless by corporal possession. There- 
 fore in dignities possession is given by instalment ; in rectories 
 and vicarages by induction, without which no temporal rights 
 accrue to the minister, though every ecclesiastical power is vested 
 in him by institution. So also even in descents of lands by our 
 law, which are cast on the heir by act of the law itself, the heir 
 has not plenum dominium, or full and complete ownership, till he 
 has made an actual corporal entry into the lands : for if he dies 
 before entry made, his heir shall not be entitled to take the pos- 
 session, but the heir of the person who was last actually seized. 
 It is not therefore only a mere right to enter, but the actual 
 entry that makes a man complete owner so as to transmit 
 the inheritance to his own heirs : nonjus, sed seisina, facit sti- 
 pitem. 
 
 Yet the corporal tradition of lands being sometimes incon- 
 venient, a symbolical delivery of possession was in many cases 
 anciently allowed ; by transferring something near at hand, in 
 the presence of credible witnesses, which by agreement should 
 serve to represent the very thing designed to be conveyed ; and 
 an occupancy of this sign or symbol was *permitted as [*313 
 
46o OF ALIEN A TION B Y DEED. 
 
 equivalent to occupancy of the land itself. Among the Jews we 
 find the evidence of a purchase thus defined in the be ok of Ruth : 
 " Now this was the manner in former time in Israel, concerning 
 redeeming and concerning changing, for to confirm all things : 
 a man plucked off his shoe and gave it to his neighbor : and this 
 was a testimony in Israel." Among the ancient Goths and 
 Swedes,, contracts for the sale of lands were made in the pres- 
 ence of witnesses who extended the cloak of the buyer, while the 
 seller cast a clod of the land into it, in order to give possession ; 
 and a staff or wand was also delivered from the vendor to the ven- 
 dee, which passed through the hands of the witnesses. With our 
 Saxon ancestors the delivery of a turf was a necessary solemnity 
 to establish the conveyance of lands. And to this day, the con- 
 veyance of our copyhold estates is usually made from the 
 seller to the lord or his steward by delivery of a rod or verge, and 
 then from the lord to the purchaser by redelivery of the same, 
 in the presence of a jury of tenants. 
 
 Conveyances in writing were the last and most refined im- 
 provement. The mere delivery of possession, either actual or 
 symbolical, depending on the ocular testimony and remembrance 
 of the witnesses, was liable to be forgotten or misrepresented, 
 and became frequently incapable of proof. Besides, the new 
 occasions and necessities introduced by the advancement of com- 
 merce, required means to be devised of charging and encumber- 
 ing estates, and of making them liable to a multitude of condi- 
 tions and minute designations for the purposes of raising money, 
 without an absolute sale of the land ; and sometimes the like 
 proceedings were found useful in order to make a decent and 
 competent provision for the numerous branches of a family, and 
 for other domestic views. None of which could be effected by 
 a mere, simple, corporal transfer of the soil, from one man to 
 another, which was principally calculated for conveying an ab- 
 *314] solute, unlimited dominion. * Written deeds were there- 
 fore introduced, in order to specify and perpetuate the peculiar 
 purposes of the party who conveyed ; yet still, for a very long 
 series of years, they were never made use of, but in company 
 with the more ancient and notorious method of transfer, by de- 
 livery of corporal possession. 
 
 Livery of seizin, by the common law, is necessary to be made 
 upon every grant of an estate of freehold in hereditaments cor 
 
OF ALIEN A TION B Y DEED. 461 
 
 poreal, whether of inheritance or for life only. In hereditaments 
 incorporeal it is impossible to be made ; for they are not the ob- 
 ject of the senses ; and in leases for years, or other chattel inter- 
 ests, it is not necessary. In leases for years indeed an actual 
 entry is necessary, to vest the estate in the lessee : for the bare 
 lease gives him only a right to enter, which is called his interest 
 in the term, or interesse termini: and when he enters in pursu- 
 ance of that right, he is then, and not before, in possession of 
 his term, and complete tenant for years. This entry by the 
 tenant himself serves the purpose of notoriety, as well as livery 
 of seizin from the grantor could have done ; which it would have 
 been improper to have given in this case, because that solemnity 
 is appropriated to the conveyance of a freehold. And this is 
 one reason why freeholds cannot be made to commence in future, 
 because they cannot (at the common law) be made but by livery 
 of seizin ; which livery, being an actual manual tradition of the 
 land, must take effect in prcesenti, or not at all. 
 
 On the creation of a freehold remainder, at one and the same 
 time with a particular estate for years, we have before seen, that 
 at the common law, livery must be made to the particular tenant 
 But if such a remainder be created afterwards, expectant on a 
 lease for years now in being, the livery must not be made to the 
 lessee for years, for then it operates nothing ; " nam quod 
 semel meum est, amplius meum esse non potest ;" but it must 
 be made to the remainderman *himself, by consent of [*315 
 the lessee for years ; for without his consent no livery of the pos- 
 session can be given ; partly because such forcible livery would 
 be an ejectment of the tenant from his term, and partly for 
 the reasons before given for introducing the doctrine of attorn- 
 ments. 
 
 Livery of seizin is either in deed, or in law. Livery in deed 
 is thus performed. The feoffor, lessor, or his attorney, together 
 with the feoff ee, lessee, or his attorney (for this may as effectually 
 oe done by deputy or attorney, as by the principals themselves 
 in person), come to the land, or to the house ; and there in the 
 presence of witnesses, declare the contents of the feoffment or 
 lease, on which livery is to be made. And then the feoffor, if it 
 be of land, doth deliver to the feoffee, all other persons being 
 out of the ground, a clod or turf, or a twig or bough there grow- 
 ing, with words to this effect : " I deliver these to you in the 
 
462 OF ALIENA TION B V DEED. 
 
 name of seizin of all the lands and tenements contained in this 
 deed." But if it be of a house, the feoffor must take the ring or 
 latch of the door, the house being quite empty and deliver it to 
 the feoffee in the same form ; and then the feoffee must enter 
 alone, and shut to the door, and then open it, and let in the 
 others. If the conveyance or feoffment be of divers lands, lying 
 scattered in one and the same county, then in the feoffor's pes 
 session, livery of seizin of any parcel, in the name of the rest, 
 sufficeth for all, but if they be in several counties, there must be 
 as many liveries as there are counties. For if the title to these 
 lands comes to be disputed, there must be as many trials as there 
 are counties, and the jury of one county are no judges of the 
 notoriety of a fact in another. Besides anciently this seizin was 
 obliged to be delivered coram paribus de vicineto, before the peers 
 or freeholders of the neighborhood, who attested such delivery 
 in the body or on the back of the deed ; according to the rule of 
 the feudal law, pares debent interesse invcstiturce feudi, et non alii ; 
 *316] for which this reason is expressly given : because *the 
 peers or vassals of the lord, being bound by their oath of fealty, 
 will take care that no fraud be committed to his prejudice, which 
 strangers might be apt to connive at. And though afterwards 
 the ocular attestation of the pares was held unnecessary, and 
 livery might be made before any credible witnesses, yet the trial 
 in case it was disputed (like that of all other attestations) was 
 still reserved to the pares or jury of the county. Also, if the 
 lands be out on lease, though all lie in the same county, there 
 must be as many liveries as there are tenants : because no livery* 
 can be made in this case but by the consent of the particular ten- 
 ant ; and the consent of one will not bind the rest. And in all 
 these cases it is prudent, and usual to endorse the livery of seizin 
 on the back of the deed, specifying the manner, place, and time 
 of making it ; together with the names of the witnesses. And 
 thus much for livery in deed. 
 
 Livery in law is where the same is not made on the land, but 
 in sight of it only ; the feoffor saying to the feoffee, " I give you 
 yonder land, enter and take possession." Here, if the feoffee 
 enters during the life of the feoffor, it is a good livery, but not 
 otherwise ; unless he dares not enter, through fear of his life or 
 bodily harm : and then his continual claim, made yearly, in due 
 form of law, as near as possible to the lands, will suffice without 
 
OF ALIENA TION B Y DEED. 463 
 
 an entry. This livery in law cannot however be given or re- 
 ceived by attorney, but only by the parties themselves." 
 
 2. The conveyance oy gift, donatio, is properly applied to 
 the creation of an estate-tail, as feoffment is to that of an estate 
 in fee, and lease to that of an estate for life or years. It differs 
 in nothing from a feoffment, but in the nature of an estate pass- 
 ing by it : for the operative words of conveyance in this case are 
 do or dedi ; and gifts in tail are equally imperfect without livery 
 of seizin, as feoffments in fee simple. *And this is the only [*317 
 distinction that Littleton seems to take, when he says, " It is to 
 be understood that there is feoffor and feoffee, donor and donee, 
 lessor and lessee ;" viz. feoffor is applied to a feoffment in fee- 
 simple, donor to a gift in tail, and lessor to a lease for life, or for 
 years, or at will. In common acceptation gifts are frequently 
 confounded with the next species of deeds : which are, — 
 
 3. Grants, concessiones ; the regular method by the common 
 law of transferring the property of incorporeal hereditaments, or 
 such things whereof no livery can be had. For which reason all 
 corporeal hereditaments, as lands and houses, are said to lie in 
 livery ; and the others, as advowsons, commons, rents, reversions, 
 &c. to lie iti grant. And the reason is given by Bracton : " t7-a- 
 ditio, or livery, nihil aliud est quam. rei corf oralis de persona in 
 personam, de manii in manum, translatio aut in possessionem in- 
 ductio : sed res incorporales, quce stmt ipsicm jus rei vel corpori 
 inkoeretzs, traditionem non patiuntur." These therefore pass 
 merely by the delivery of the deed. And in signiories, or rever- 
 sions of lands, such grant, together with the attornment of the 
 tenant (while attornments were requisite), were held to be of 
 equal notoriety with, and therefore equivalent to, a feoffment and 
 livery of lands in immediate possession. It therefore differs but 
 little from a feoffment, except in its subject-matter: for the 
 operative words therein commonly used are dedi et concessi, 
 " havf given and granted." 
 
 4. A lease is properly a conveyance of any lands or tenements 
 (usually in consideration of rent or other annual recompense), 
 made for life, for years, or at will but always for a less time than 
 
 "' Conveyance by feoffment and livery of seizin, has been superseded in 
 England by other modes of conveyance. In the United States, it was 
 employed in some few instances at an early period, but has long since been 
 abolished, or fallen into disuse. 
 
464 OF ALIEN A TION B Y DEED. 
 
 the lessor hath in the premises ; for if it be for the whole inter- 
 est, it is more properly an assignment than a lease. The usual 
 words of operation in it are, " demise, grant, and to farm let ; 
 *318] dimisi, concessi, et adfirmam *tradidi." Farm or feonne, is 
 an old Saxon word signifying provision, and it came to be used 
 instead of rent or render, because anciently the greater part of 
 1 ents were reserved in provisions ; in corn, in poultry, and the 
 iilce : till the use of money became more frequent. So that a 
 farmer, firmarius, was one who held his lands upon payment of a 
 rent ox feorme : though at present, by a gradual departure from 
 the original sense, the -word farm is brought to signify the very 
 estate or lands so held upon farm or rent. By this conveyance 
 in estate for life, for years, or at will, may be created, either in 
 corporeal or incorporeal hereditaments : though livery of seizin 
 is indeed incident and necessary to one species of leases, viz. 
 leases for life of corporeal hereditaments ; but to no other. 
 
 Whatever restriction, by the severity of the feudal law, might 
 in times of very high antiquity be observed with regard to leases ; 
 yet by the common law, as it has stood for many centuries, 
 all persons seized of any estate might let leases to endure, so 
 long as their own interest lasted, but no longer. Therefore tenant 
 in fee-simple might let leases of any duration, for he hath the 
 whole interest ; but tenant in tail, or tenant for life, could make 
 no leases which should bind the issue in tail or reversioner : f 
 nor could a husband, seized Jure uxoris, make a firm or valid 
 lease for any longer term then the joint lives of himself and his 
 wife, for then his interest expired. Yet some tenants for life, 
 where the fee-simple was in abeyance, might (with the concur- 
 rence of such as have the guardianship of the fee) make leases of 
 equal duration with those granted by tenants in fee-simple, such 
 as parsons and vicars with consent of the patron and ordinary. 
 So also bishops, and deans, and such other sole ecclesiastical 
 corporations as are seized of the fee-simple of lands in their cor- 
 porate right, might, with the concurrence and confirmation of 
 such persons as the law requires, have made leases for years, or 
 for life, estates in tail, or in fee, without any limitation or control 
 '319] And corporations aggregate *might have made what 
 estates they pleased, without the confirmation of any other per- 
 son whatsoever. Whereas now, by several statutes, this power, 
 where it was unreasonable, and might be made an ill use of, is 
 t See ante, p. 307, note 2. 
 
OF ALIENA TION B Y DEED. 465 
 
 restrained ; and, where in the other cases the restraint by the 
 common-law seemed too hard, it is in some measure removed. 
 The former statutes are called the restraining, the latter the 
 enabling statute. We will take a view of them all, in order of 
 time. 
 
 And, first, the enabling %\.3i.\.\x\.q, 32 Hen. VIII., ch. 28, empow- 
 ers three manner of persons to make leases, to endure for three 
 lives or one-and-twenty years ; which could not do so before. As 
 first, tenant in tail may by such leases bind his issue in tail, but 
 not those in remainder or reversion. Secondly, a husband seized 
 in right of his wife, in fee-simple or fee-tail, provided the wife 
 joins in such lease, may bind her and her heirs thereby. Lastly, 
 all persons seized of an estate of fee-simple in right of then 
 churches, which extends not to parsons and vicars, may (without 
 the concurrence of any other person) bind their successors. 
 But then there must many requisites be observed, which the 
 statute specifies, otherwise such leases are not binding, i. The 
 lease must be by indenture ; and not by deed poll, or by parol. 
 2. It must begin from the making, or day of the making, and not 
 at any greater distance of time. 3. If there be any old lease in 
 being, it must be first absolutely surrendered, or be within a year 
 of expiring. 4. It must be either for twenty-one years or three 
 lives, and not for both. 5. It must not exceed the term of three 
 iives, or twenty-one years, but may be for a shorter term. 6. It 
 must be of corporeal hereditaments, and not of such things as lie 
 merely in grant : for no rent can be reserved thereout by the 
 common law, as the lessor cannot resort to them to distrain, 
 
 7. It must be of *lands and tenements most commonly [*320 
 letten for twenty years past ; so that if they had been let for 
 above half the time (or eleven years out of the twenty) either for 
 life, or for years at will, or by copy of court roll, it is sufficient. 
 
 8. The most usual and customary feorm or rent, for twenty years 
 past, must be reserved yearly on such lease. 9. Such leases must 
 not be made without impeachment of waste. These are the 
 guards, imposed by the statute (which was avowedly made for the 
 security of farmers and the consequent improvement of tillage) 
 to prevent unreasonable abuses, in prejudice of the issue, the 
 
 wife, or the successor, of the reasonable indulgence here given." 
 
 • «# « « * **« 
 
 ^ There is omitted at this point those portions of the original text con- 
 30 
 
466 OF ALIEN A TION B Y DEED. 
 
 5. An exchange is a mutual grant of equal interests, the one 
 in consideration of the other. The word " exchange," is so in- 
 dividually requisite and appropriated by law to this case, that it 
 cannot be supplied by any other word, or expressed by any cir- 
 cumlocution. The estates exchanged must be equal in quantity ; 
 not of value, for that is immaterial, but of interest ; as fee-simple 
 for fee-simple, a lease for twenty years for a lease for twenty 
 years, and the like. And the exchange may be of things that 
 lie either in grant or in livery. But no livery of seizin, even in 
 exchanges of freehold, is necessary to perfect the conveyance : 
 for each party stands in the place of the other, and occupies his 
 right, and each of them hath already had corporal possession of 
 his own land. But entry must be made on both sides ; for, if 
 either party die before entry, the exchange is void, for want of 
 sufficient notoriety. And so also, if two parsons, by consent of 
 patron and ordinary, exchange their preferments ; and the one is 
 presented, instituted, and inducted, and the other is presented, 
 and instituted, but dies before induction ; the former shall not 
 keep his new benefice, because the exchange was not completed, 
 and therefore he shall return back to his own. For if, after an 
 exchange of lands or other hereditaments, either party be evicted 
 of those which were taken by him in exchange, through defect 
 of the other's title ; he shall return back to the possession of 
 his own, by virtue of the implied warranty contained in all ex- 
 changes. 
 
 6. A partition is when two or more joint-tenants, coparceners, 
 •324] or tenants in common, agree to divide the *lands so held 
 among them in severalty, each taking a distinct part. Here, as 
 in some instances there is a unity of interest and in all a unity 
 of possession, it is necessary that they all mutually convey and 
 assure to each other the several estates which they are to take 
 and enjoy separately. By the common law, coparceners, being 
 compellable to make partition, might have made it by parol only ; 
 but joint-tenants and tenants in common must have done it by 
 taining a statement of the provisions of the disabling or restraining %'a.\xi.\x&, 
 to which reference is made. These are of little importance to the American 
 student, and they have, to a large extent, been modified by subsequent 
 English legislation. They were passed to prevent bishops, deans and 
 chapters, colleges, and other ecclesiastical or eleemosynary corporations, 
 and all parsons and vicars, from making improvident leases. (See for the 
 present English Viw, Broom & Hadley's Comm. ii. 509.) 
 
OF ALIEN A TION B Y DEED. 467 
 
 deed : and in both cases the conveyance must have been perfect- 
 ed by livery of seizin. And the statutes of 31 Hen. VIII., ch. r, 
 and 32 Hen. VIII., ch. 32, made no alteration in this point. But 
 the statute of frauds, 29 Car. II., ch. 3, hath now abolished this 
 distinction, and made a deed in all cases necessary." 
 
 These are the several species of primary or original convey- 
 ances. Those which remain are of the secondary or derivative 
 sort ; which presuppose some other conveyance precedent, and 
 only serve to enlarge, confirm, alter, restrain, restore or transfer 
 the interest granted by such original conveyance. As, — 
 
 7. Releases ; which ,are a discharge or a conveyance of a 
 man's right in lands or tenements, to another that hath some 
 former estate in possession. The words generally used, therein 
 are " remised, released, and for ever quit-claimed." And these 
 releases may enure either, i. By way of enlarging an estate, or 
 enlarger V estate : as if there be tenant for life or years, remainder 
 to another in fee, and he in remainder releases all his right to 
 the particular tenant and his heirs, this gives him the estate in 
 fee. But in this case the relessee must be in possession of some 
 estate, for the release to work upon ; for if there be lessee for 
 years, and before he enters and is in possession, the lessor re- 
 leases to him all his right in the reversion, such release is void 
 for want of possession in the relessee. 2. By way oi passing an 
 estate, or mitter P estate : as when one of two coparceners releaseth 
 all her *right to the other, this passeth the fee-simple of [*325 
 the whole. And in both these cases there must be a privity of 
 estate between the relessor and relessee ; that is, one of their 
 estates must be so related to the other, as to make but one and 
 the same estate in law. 3. By way oi passing a right, or mitter 
 le droit : as if a man be disseized, and releaseth to his disseizor 
 all his right, hereby the disseizor acquires a new right, which 
 changes the quality of his estate, and renders that lawful which 
 before was tortious or wrongful. 4. By way of extinguishment : 
 as if my tenant for life makes a lease to A for life, remainder to 
 B and his heirs, and I release to A ; this extinguishes my right to 
 the reversion, and shall enure to the advantage of B's remainder 
 as well as of A's particular estate. 5. By way of entry 2cc^& feoffment : 
 
 " In the United States, statutes will be found in the several States, pro- 
 viding methods for the partition of estates held in joint tenancy and tenancy 
 in common. 
 
468 OF ALIENA TION B Y DEED. 
 
 as if there be two joint disseizors, and the disseizee releases to 
 one of them, he shall be sole seized, and shall keep out his former 
 companion ; which is the same in effect as if the disseizee had 
 entered, and thereby put an end to the disseizin, and afterwards 
 had enfeoffed one of the disseizors in fee. And hereupon we may 
 observe, that when a man has in himself the possession of lands, 
 he must at the common law convey the freehold by feoffment 
 and livery ; which makes a notoriety in the country : but if a man 
 has only a right or a future interest, he may convey that right 
 or interest by a mere release to him that is in possession of the 
 land : for the occupancy of the relessee is a matter of sufficient 
 notoriety already. 
 
 8. A confirmation is of a nature nearly allied to a release. 
 Sir Edward Coke defines it to be a conveyance of an estate or 
 right i7i esse, whereby a voidable estate is made sure and una- 
 voidable, or whereby a particular estate is increased ; and the 
 words of making it are these, " have given, granted, ratified, ap- 
 proved, and confirmed." An instance of the first branch of the 
 definition is, if tenant for life leaseth for forty years, and dieth 
 during that term ; here the lease for years is voidable by him in 
 *326] reversion ; yet, if he *hath confirmed the estate of the 
 lessee for years, before the death of tenant for life, it is no longer 
 voidable but sure. The latter branch, or that which tends to the 
 increase of a particular estate, is the same in all respects with 
 that species of release, which operates by way of enlargement. 
 
 9. A surrender, sursumr-edditio, or rendering up, is of a na- 
 ture directly opposite to a release ; for, as that operates by the 
 greater estate's descending upon the less, a surrender is the fall- 
 ing of a less estate into a greater. It is defined, a yielding up of 
 an estate for life or years to him that hath the immediate rever- 
 sion or remainder, wherein the particular estate may merge or 
 drown, by mutual agreement between them. It is done by these 
 words, " hath surrendered, granted, and yielded up." The sur- 
 renderor must be in possession ; and the surrenderee must have 
 a higher estate, in which the estate surrendered may merge ; 
 therefore tenant for life cannot surrender to him in remainder 
 for years. In a surrender there is no occasion for livery of 
 seizin ; for there is a privity of estate between the surrenderor 
 and the surrenderee ; the one's particular estate and the other's 
 remainder are one and the same estate ; and livery having beec 
 
OF ALIEN A TION B V DEED. 469 
 
 once made at the creation of it, there is no necessity for having 
 it afterwards. And for the same reason, no livery is required on 
 a release or confirmation in fee to tenant for years or at will, 
 though a freehold thereby passes ; since the reversion of the 
 lessor, or confirmor, and the particular estate of the relessee, or 
 confirmee are one and the same estate ; and where there is 
 already a possession, derived from such a privity of estate, any 
 further delivery of possession would be vain and nugatory. 
 
 10. An assignment is properly a transfer, or making over to 
 another, of the right one has in any estate ; but it is usually ap- 
 plied to an estate for life pr years. And it differs from a lease 
 only in this : that by a lease one grants an interest less 
 *than his own, reserving to himself a reversion ; in assign- [*327 
 raents he parts with the whole property, and the assignee stand? 
 to all intents and purposes in the place of the assignor." 
 
 11. A defeasance is a collateral deed, made at the same time 
 with a feoffment or other conveyance, containing certain condi- 
 tions, upon the performance of which the estate then created 
 may be defeated or totally undone. And in this manner mort- 
 gages were in former times usually made ; the mortgagor en- 
 feoffing the mortgagee, and he at the same time executing a 
 deed of defeasance, whereby the feoffment was rendered void on 
 repayment of the money borrowed at a certain day. And this, 
 when executed at the same time with the original feoffment, was 
 considered as part of it by the ancient law ; and therefore only, 
 indulged ; no subsequent secret revocation of a solemn convey- 
 ance, executed by livery of seizin, being allowed in those days 
 of simplicity and truth : though, when uses were afterwards in- 
 troduced, a revocation of such uses was permitted by the courts 
 
 " [This is not universally true ; for there is a variety of distinctions when 
 the assignee is bound by the covenants of the assignor, and when he is not 
 The general rule is, that he is bound by all covenants which run with the 
 land I but not by collateral covenants which do not run with the land. Thus, 
 where the lessee covenants for himself, his executors and administrators, to 
 reside upon the premises, this covenant binds the assignee, for it runs with, 
 or is appurtenant to, the thing demised. An assignee is liable for rent only 
 while he continues in possession under the assignment. And he is held not 
 '0 be guilty of a fraud, if he assigns over to a beggar.] Covenants running 
 with the land, in the law of landlord and tenant, are such as the following: 
 covenants to pay rent ; to insure ; to repair ; to pay taxes ; to deliver up the 
 premises in good condition ; for quiet enjoyment, &c. (See 44 & 45 Vict. c. 41, 
 s. 10.) 
 
470 OF ALIEN A TION B Y DEED. 
 
 of equity. But things that were merely executory, or to be 
 completed by matter subsequent (as rents, on which no seizin 
 could be had till the time of payment ;) and so also annuities, 
 conditions, warranties, and the like, were always liable to be re- 
 called by defeasances made subsequent to the time of their 
 creation. 
 
 II. There yet remain to be spoken of some few conveyances, 
 which have their force and operation by virtue of the statute of 
 uses. 
 
 Uses and trusts are in their original of a nature very similar, 
 or rather exactly the same : answering more to the. fidei-commis- 
 sum than the usus fructus of the civil law : which latter was the 
 temporary right of using a thing, without having the ultimate 
 property, or full dominion of the substance. But the fidei-com- 
 missum, which usually was created by will, was the disposal of 
 *328] an inheritance to one, in confidence that he *should con- 
 vey it or dispose of the proiits at the will of another. And il 
 was the business of a particular magistrate, the prcetor fidei com- 
 missarius, instituted by Augustus, to enforce the observance of 
 this confidence. So that the right thereby given was looked 
 upon as a vested right, and entitled to a remedy from a court of 
 justice; which occasioned that known division of rights by the 
 Roman law into jus legitimum, a legal right, which was reme- 
 died by the ordinary course of law ; Jus fiduciarum, a right in 
 trust, for which there was a remedy in conscience; z.wdi jus pre- 
 carium, a right in courtesy, for which the remedy was only by 
 entreaty or request. In our law, a use might be ranked under 
 the rights of the second kind ; being a confidence reposed in 
 another who was tenant of the land, or terre-tenant, that he 
 should dispose of the land according to the intentions of cestui 
 que use, or him to whose use it was granted, and suffer him to 
 take the profits. As, if a feoffment was made to A and his 
 heirs, to the use of (or in trust for) B and his heirs ; here at the 
 common law, A the terre-tenant had the legal property and pos- 
 session of the land, but B the cestui que use was in conscience 
 and equity to have the profits and disposal of it. 
 
 This notion was transplanted into England from the civil law, 
 about the close of the reign of Edward III., by means of the 
 foreign ecclesiastics ; who introduced it to evade the statutes of 
 mortmain, by obtaining grants of lands not to religious houses 
 
OF ALIENA TION B Y DEED. 471 
 
 directly, but to the use of the religious houses : which the cleri- 
 cal chancellors of those times held to h& fidei-commissa, and bind- 
 ing in conscience ; and therefore assumed the jurisdiction which 
 Augustus had vested in his prcetor, of compelling the execution 
 of such trusts in the court of chancery. And, as it was most 
 easy to obtain such grants from dying persons, a maxim was es- 
 tablished, that though by law the lands themselves were not de- 
 visable, yet if a testator had enfeoffed another to his own use, and 
 so was *possessed of the use only, such use was devisable [*329 
 by will. But we have seen how this evasion was crushed in its 
 infancy, by statute 15 ^ic. II., ch. 5, with respect to religious 
 houses. 
 
 Yet, the idea being once introduced, however fraudulently, it 
 afterwards continued to be often innocently, and sometimes very 
 laudably, applied to a number of civil purposes : particularly as 
 it removed the restraint of alienations by will, and permitted the 
 owner of lands in his lifetime to make various designations of 
 their profits, as prudence, or justice, or family convenience, might 
 from time to time require. Till at length, during our long wars 
 in France, and the subsequent civil commotions between the 
 houses of York and Lancaster, uses grew almost universal ; 
 through the desire that men had (when their lives were continu- 
 ally in hazard) of providing for their children by will, and of secur- 
 ing their estates from forfeitures ; when each of the contending 
 parties, as they became uppermost, alternately attainted the other. 
 Wherefore, about the reign of Edw. IV. (before whose time Lord 
 Bacon remarks, there are not six cases to be found relating to 
 the doctrine of uses), the courts of equity began to reduce them 
 to something of a regular system. 
 
 Originally it was held that the chancery could give no relief, 
 but against the very person himself intrusted for cestui que use, 
 and not against his heir or alienee. This was altered in the reign 
 of Henry VI., with respect to the heir; and afterwards the same rule, 
 by a parity of reason, was extended to such alienees as had purchas- 
 ed either without a valuable consideration, or with an express notice 
 of the use. But a purchaser for a valuable considera*-ion, with- 
 out notice, might hold the land discharged of any trust or confi- 
 dence. And also it was held, that neither the king nor queen, 
 on account of their dignity royal, nor any corporation *ag- [*330 
 giegate, on account of its limited capacity, could be seized to 
 
472 OF ALIEN A TION B Y DEED. 
 
 any use but their own ; that is, they might hold the laii Js, but 
 were not compellable to execute the trust. And, if the feoffee to 
 uses died without heir, or committed a forfeiture or married, nei- 
 ther the lord who entered for his escheat or forfeiture, nor the 
 husband who retained the possession as tenant by the curtesy, 
 nor the wife to whom dower was assigned, were liable to perform 
 the use ; because they were not parties to the trust, but came in 
 by act of law ; though doubtless their title in reason was no bet- 
 ter than that of the heir. 
 
 On the other hand the use itself, or interest of cestui que use, 
 was learnedly refined upon with many elaborate distinctions. 
 And, I. It was held that nothing could be granted to a use, 
 whereof the use is inseparable from the possession ; as annuities, 
 ways, commons, and authorities, quce ipso usu consumuntur: or 
 whereof the seizin could not be instantly given. 2. A use could 
 not be raised without a sufificient consideration. For where a 
 man makes a feoffment to another, without any consideration, 
 equity presumes that he meant it to the use of himself, unless 
 he expressly declares it to be the use of another, and then noth- 
 ing shall be presumed contrary to his own expressions. But if 
 either a good or a valuable consideration appears, equity will 
 immediately raise a use, correspondent to such consideration. 3. 
 Uses were descendible according to the rules of common law, in 
 case of inheritances in possession ; for in this and many other 
 respects csquitas sequitur legem, and cannot establish a different 
 rule of property from that which the law has established. 4. 
 Uses might be assigned by secret deeds between the parties, or 
 be devised by last will and testament ; for, as the legal estate to 
 the soil was not transferred by these transactions, no livery of 
 *331] seizin was necessary ; *and, as the intention of the parties 
 was the leading principle in this species of property, any instru- 
 ment declaring that intention was allowed to be binding in equity. 
 But cestui que use could not at common law aliene the legal 
 interest of the lands, without the concurrence of his feoffee ; to 
 whom he was accounted by law to be only tenant at sufferance. 
 5. Uses were not liable to any of the feudal burdens ; and par- 
 ticularly did not escheat for felony or other defect of blood; for 
 escheats etc., are the consequence of tenure, and uses are held of 
 nobody : but the land itself was liable to escheat, whenever the 
 blood of the feoffee to uses was extinguished by crime or by Je 
 
OF ALIENA TION B Y DEED. 4,71 
 
 feet ; and the lord (as was before observed) might hold it dis- 
 charged of the use. 6. No wife could be endowed, or husband 
 have his curtesy, of a use : for no trust was declared for their 
 benefit, at the original grant of the estate. And therefore it be- 
 came customary, when most estates were put in use, to settle be- 
 fore marriage some joint-estate to the use of the husband and 
 wife for their lives ; which was the original of modern jointures, 
 7. A use could not be extended by writ of elegit, or other legal 
 process, for the debts of cestui que use. For, being merely a 
 creature of equity, the common law, which looked no farther than 
 to the person actually seized of the land, could award no process 
 against it. 
 
 It is impracticable, upon our present plan, to pursue the doc- 
 trine of uses through all the reiinements and niceties which the 
 ingenuity of the times (abounding in subtile disquisitions) de- 
 duced from this child of the imagination ; when once a depart- 
 ure was permitted from the plain simple rules of property estab- 
 lished by the ancient law. These principal outlines will be fully 
 sufficient to show the ground of Lord Bacon's complaint, that this 
 course of proceeding " was turned to deceive many of their just 
 and reasonable rights. A man, that had cause to sue for land, 
 knew not against whom to *bring his action, or who was *[332 
 the owner of it. The wife was defrauded of her thirds; the hus- 
 band of his curtesy ; the lord of his wardship, relief, heriot, and 
 escheat ; the creditor of his extent for debt ; and the poor tenant 
 of his lease." To remedy these inconveniences abundance of 
 statutes were provided, which made the lands liable to be ex- 
 tended by the creditors of cestui que use, allowed actions for the 
 freehold to be brought against him if in the actual pernancy or 
 enjoyment of the profits ; made him liable to actions of waste ; 
 estabUshed his conveyances and leases made without the concur- 
 rence of his feoffees ; and gave the lord the wardship of his heir, 
 with certain other feudal perquisites. 
 
 These provisions all tended to consider cestui que use as the 
 real cwnc- of the estate ; and at length the idea was carried into 
 effect by the statute 27 Hen. VIII., ch. 10, which is usually called 
 the statute of uses, or, in conveyances and pleadings, the statute 
 for transferring uses into possession. The hint seems to have 
 been derived from what was done at the accession of King Rich- 
 aid III. ; who, having, when Duke of Gloucester, been frequently 
 
474 OF ALIEN A TION B Y DEED. 
 
 made a feoffee to uses, would upon the assumption of the crown 
 (as the law was then understood) have been entitled to hold the 
 lands discharged of the use. But to obviate so notorious an in- 
 justice, an act of parliament was immediately passed, which or- 
 dained, that where he had been so enfeoffed jointly with other 
 persons, the land should vest in the other feoffees, as if he had 
 never been named ; and that, where he stood solely enfeoffed, 
 the estate itself should vest in cestui que use in like manner as 
 he had the use. And so the statute of Henry VIII., after reciting 
 the various inconveniences before-mentioned, and many otherSi 
 enacts, that " when any person shall be seized of lands, &c., to 
 the use, confidence, or trust of any other person or body 
 *333] *politic, the person or corporation entitled to the use in 
 fee-simple, fee-tail, for life, or years, or otherwise, shall from 
 thenceforth stand and be seized or possessed of the land, etc., of 
 and in the like estates as they have in the use, trust, or confi- 
 dence ; and that the estate of the person so seized to uses shall 
 be deemed to be in him or them that have the use, in such qual- 
 ity, manner, form, and condition, as they had before in the use." 
 The statute thus executes the use, as our lawyers term it ; that 
 IS, it conveys the possession to the use, and transfers the use into 
 possession ; thereby making cestui que use complete owner of 
 the lands and tenements, as well at law as in equity. 
 
 The statute having thus not abolished the conveyance to uses, 
 but only annihilated the intervening estate of the feoffee, and 
 turned the interest of cestui que use into a legal instead of an 
 equitable ownership ; the courts of common law began to take 
 cognizance of uses, instead of sending the party to seek his re- 
 lief in chancery. And, considering them now as merely a mode 
 of conveyance, very many of the rules before established in equity 
 \vere adopted with improvements by the judges of the common 
 law. The same persons only were held capable of being seized 
 to a use, the same considerations were necessary for raising it, 
 and it only could be raistd of the same hereditaments as former- 
 ly. But as the statute, the instant it was raised, converted it 
 into an actual possession of the land, a great number of the in- 
 cidents, that formerly attended it in its fiduciary state, were now 
 at an end. The land could not escheat or be forfeited by the 
 act or defect of the feoffee, nor be aliened to any purchaser dis- 
 charged of the use, nor be liable to dower or curtesy on account 
 
OF ALIEN A TION B Y DEED. 475 
 
 of the seizin of such feoffee ; because the legal estate never rests 
 in him for a moment, but is instantaneously transferred to cestui 
 que use as soon as the use is declared. And, as the use and the 
 land were now convertible terms, they became liable to dower, 
 curtesy, and escheat, in consequence of the seizin of cestui que 
 use, who was now become the terre-tenant also ; and they like- 
 wise were no longer devisable by will. 
 
 * The various necessities of mankind induced also the [*334 
 judges very soon to depart from the rigor and simplicity of the 
 rules of the common law, and to allow a more minute and com- 
 plex construction 'upon^ conveyances to uses than upon others. 
 Hence it was adjudged that the use need not always be executed 
 the instant the conveyance is made : but, if it cannot take effect 
 at that time, the operation of the statute may wait till the use 
 shall arise upon some future contingency ; to happen within a 
 reasonable period of time ; and in the meanwhile the ancient use 
 shall remain in the original grantor ; as when lands are conveyed 
 to the use of A. and B., after a marriage shall be had between them, 
 or to the use of A. and his heirs till B. shall pay him a sum of money, 
 and then to the use of B. and his heirs. Which doctrine, when 
 devises by will were again introduced, and considered as equiva- 
 lent in point of construction to declarations of uses, was also 
 adopted in favor of executory devises. But herein tliese, which 
 are called contingent or springing uses, differ from an executory 
 devise ; in that there must be a person seized to such uses at the 
 time when the contingency happens, else they can never be exe- 
 cuted by the statute ; and therefore if the estate of the feoffee 
 to such use be destroyed by alienation or otherwise, before the 
 contingency arises, the use is destroyed for ever : whereas by an 
 executory devise the freehold itself is transferred to the future 
 devisee. And, in both these cases, a fee may be limited to take 
 effect after a fee ; because, though that was forbidden by the 
 common law in favor of the lord's escheat, yet when the legal 
 estate was not extended beyond one fee-simple, such subsequent 
 uses (after a use in fee) were before the statute permitted to be 
 limited in equity ; and then the statute executed the legal estate 
 in the same manner as the use before subsisted. It was also 
 held, that a use, though executed, may change from one to an- 
 other by circumstances ex post facto ; as, if A makes a feoffment 
 •to the use of his intended wife and her eldest son for [*SS5 
 
476 OF ALIEN A TION B Y DEED. 
 
 their lives, upon the marriage the wife takes the whole use in 
 severalty ; and upon the birth of a son, the use is executed joint- 
 ly in them both. This is sometimes called a secondary, some- 
 times a shifting use. And, whenever the use limited by the deed 
 expires, or cannot vest, it returns back to him who raised 'it, af- 
 ter such expiration, or during such impossibility, and is styled a 
 resulting use. As, if a man makes a feoffment to the use of his 
 intended wife for life, with remainder to the use of her first-born 
 son in tail ; here, till he marries, the use results back to himself ; 
 after marriage, it is executed in the wife for life : and, if she dies 
 without issue, the whole results back to him in fee. It was like- 
 wise held, that the uses originally declared may be revoked at 
 any future time, and new uses be declared of the land, provided 
 the grantor reserved to himself such a power at the creation of 
 the estate ; whereas the utmost that the common law would al- 
 low, was a deed of defeasance coeval with the grant itself, and 
 therefore esteemed a part of it, upon events specially mentioned. 
 And, in case of such revocation, the old uses were held instantly 
 to cease, and the new ones to become executed in their stead. 
 And this was permitted, partly to indulge the convenience, and' 
 partly the caprice of mankind ; who (as Lord Bacon observes) 
 have always affected to have the disposition of their property 
 revocable ill their own time, and irrevocable ever afterwards. 
 
 By this equitable train of decisions in the courts of law, the 
 power of the court of chancery over landed property was greatly 
 curtailed and diminished. But one or two technical scruples 
 which the judges found it hard to get over, restored it with tenfold 
 increase. They held, in the first place, that "no use could be 
 limited on a use ; " and that when a man bargains and sells his 
 land for money, which raises a use by implication to the bargainee, 
 the limitation of a farther use to another person is repugnant, 
 *336] and therefore *void. And therefore on a feoffment to A. 
 and his heirs, to the use of B. and his heirs, in trust for C. and 
 his heirs, they held that the statute executed only the first use, 
 and that the second was a mere nullity : not adverting, that the 
 instant the first use was executed in B., he became seized to the 
 use of C, which second use the statute might as well be permitted 
 to execute as it did the first ; and so the legal estate might be 
 instantaneously transmitted down through a hundred uses upon 
 uses, till finally executed in the last cestui que use. Again ; as 
 
• OF ALIEN A TION B Y DEED. 477 
 
 the statute mentions only such persons as were seized to the use 
 of others, this was held not to extend to terms of years, or other 
 chattel interests, whereof the termor is not seized, but only pos' 
 sessed; and therefore, if a term of one thousand years be limited 
 to A., to the use of (or in trust for) B., the statute does not ex- 
 ecute this use, but leaves it as at common law. And lastly (by 
 more modern resolutions), where lands are given to one and his 
 heirs, in trust to receive and pay over the profits to another, this 
 use is not executed by the statute ; for the land must remain in 
 the trustee to enable him to perform the trust. 
 
 Of the two more ancient distinctions the courts of equity 
 quickly availed themselves. In the first case it was evident, that 
 B. was never intended by the parties to have any beneficial in- 
 terest ; and, in the second, the cestui que use of the term was 
 expressly driven into the court of chancery to seek his remedy : 
 and therefore that court determined, that though these were not 
 uses which the statute could execute, yet still they were trusts in 
 equity, which in conscience ought to be performed. To this the 
 reason of mankind assented, and the doctrine of uses was revived, 
 under the denomination of trusts ; and thus, by this strict con- 
 struction of the courts of law, a statute made upon great deliber- 
 ation, and introduced in the most solemn manner, has had little 
 other effect than to make a slight alteration in the formal words 
 of a conveyance. 
 
 *However, the courts of equity, in the exercise of this [*337 
 new jurisdiction, have wisely avoided in a great degree those 
 mischiefs which made uses intolerable. The statute of frauds, 
 29 Car. II., ch. 3, having required that every declaration, assign- 
 meiat, or grant of any trust in lands or hereditaments (except 
 such as arise from implication or construction of law), shall be 
 made in writing signed by the party, or by his written will : the 
 courts now consider a trust-estate (either when expressly declared 
 or resulting by such implication) as equivalent to the legal 
 ownership, governed by the same rules of property, and hable to 
 every charge in equity, which the other is subject to in law : and 
 by a long series of uniform determinations, for now near a century 
 past, with some assistance from the legislature, they have raised 
 a new system of rational jurisprudence, by which trusts are made 
 to answer in general all the beneficial ends of uses, without their 
 .inconvenience or frauds. The trustee is considered as merely 
 
475 OF ALIEN A TION B Y DEED. 
 
 the instrument of conveyance, and can in no shape alTect the 
 estate, unless by alienation for a valuable consideration to a pur- 
 chaser without notice ; which, as cestui que use is generally in 
 possession of the land, is a thing that can rarely happen. The 
 trust will descend, may be aliened, is liable to debts, to executions 
 on judgments, statutes, and recognizances (by the express pro- 
 vision of the statute of frauds), to forfeiture, to leases, and other 
 incumbrances, nay, even to the curtesy of the husband, as if it 
 was an estate at law. It has not yet indeed been subjected to 
 dower, more from a cautious adherence to some hasty precedents, 
 than from any well-grounded principle.-'" It hath also been held 
 not liable to escheat to the lord, in consequence of attainder or 
 want of heirs ; because the trust could never be intended for his 
 benefit. But let us now return to the statute of uses. 
 
 The only service, as was before observed, to which this statute 
 is now consigned, is in giving efficacy to certain new and secret 
 species of conveyances ; introduced in order to render transac- 
 tions of this sort as private as possible, and to save the trouble of 
 making livery of seizin, the only ancient conveyance of corporal 
 freeholds ; the security and notoriety of which public investiture 
 abundantly overpaid the labor of going to the land, or of sending 
 an attorney in one's stead. But this now has given way to — 
 *338] *I2. A twelfth species of conveyance, called a covenant 
 to stand seized to uses : by which a man, seized of lands, cove- 
 nants in consideration of blood or marriage that he will stand 
 seized of the same to the use of his child, wife, or kinsman ; for 
 life, in tail, or in fee. Here the statute executes at once the 
 estate ; for the party intended to be benefited, having thus acquired 
 the use, is thereby put at once into corporal possession of the 
 land, without ever seeing it, by a kind of parliamentary magic. 
 But this conveyance can only operate, when made upon such 
 weighty and interesting considerations, as those of blood or mar- 
 riage. 
 
 13. A thirteenth species of conveyance, introduced by this 
 statute, is that of a bargain and sale of lands ; which is a kind of 
 
 ^' Brt it is now provided by statute (3 &4 Will. IV.) that widows of cestuis 
 que trust, shall have dower in trust estates. The same doctrine prevails 
 generally in the United States. (See a«/^, p. 3i5,note 10.) The system of 
 trust estates was derived in this country from English jurisprudence, and is 
 of great importance. The law of trusts is fully considered in Mx. Wash- , 
 burn's treatise upon Real Property, vol. ii.j pp. 485-580, 5th ed.) 
 
OF ALIENA TION B Y DEED. 479 
 
 real contract, whereby the bargainor for some pecuniary con- 
 sideration bargains and sells, that is, contracts to convey, the 
 land to the bargainee ; and becomes by such a bargain a trustee 
 for, or seized to the use of, the bargainee : and then the statute 
 of uses completes the purchase ; or, as it hath been well ex- 
 pressed, the bargain first vests the use, and then the statute vests 
 the possession. But as it was foreseen that conveyances, thus 
 made, would want all those benefits of notoriety, which the old 
 common law assurances were calculated to give ; to prevent 
 therefore clandestine conveyances of freeholds, it was enacted 
 in the same session of parliament by statute 27 Hen. VIII., ch. 
 16, that such bargains and sales should not enure to pass a free- 
 hold, unless the same be made by indenture, and i?«r^&a? within 
 six months in one of the courts of Westminster-hall, or with the 
 custos rotulorum of the county. Clandestine bargains and sales 
 of chattel interests, or leases for years, were thought not worth 
 regarding, as such interests were very precarious, till about six 
 years before ; which also occasioned them to be overlooked in 
 framing the statute of uses : and therefore such bargains and 
 sales are not directed to be enrolled. But how impossible is it 
 to *foresee, and provide against, all the consequences of [*339 
 innovations ! This omission has given rise to 
 
 14. A fourteenth species of conveyance, viz., by lease and re- 
 lease ; first invented by Serjeant Moore, soon after the statute 
 of uses, and now the most common of any, and therefore not to 
 be shaken ; though very great lawyers (as, particularly, Mr. Noy, 
 attorney-general to Charles I.) have formerly doubted its valid- 
 ity. It is thus contrived. A lease, or rather bargain and sale, 
 upon some pecuniary consideration, for one year, is made by the 
 tenant of the freehold to the lessee or bargainee. Now, this, 
 without any enrollment, makes the bargainor stand seized to the 
 use of the bargainee, and vests in the bargainee the use of the 
 term for a year ; and then the statute immediately annexes the 
 possession. He, therefore, being thus in possession, is capable of 
 receiving a release of the freehold and reversion ; which, we have 
 seen before, must be made to a tenant in possession : and, ac- 
 cordingly, the next day, a release is granted to him. This is held 
 to supply the place of livery of seizin ; and so a conveyance by 
 lease and release is said to amount to a feotfment.^ 
 
 ""This continued to be the most common mode of conveyance untD 1845 
 
48o OF ALIEN A TION B Y DEED. 
 
 15. To these may be added deeds o»f revocation of uses, hinted 
 at in a former page, and founded in a previous power, reserved 
 at the raising of the uses, to revoke such as were then declared ; 
 and to appoint others in their stead, which is incident to the 
 power of revocation. And this may suffice for a specimen of 
 conveyances founded upon the statute of uses : and will finish our 
 observations upon such deeds as serve to transfer real property.''* 
 *340] * Before we conclude, it will not be improper to subjoin 
 a few I emarks upon such deeds as are used not to co7t'vey, but to 
 charge or incumber lands, and to discharge them again : of which 
 nature are, obligations or bonds, recognizances, and defeasances 
 upon them both. 
 
 I. An obligation or bond, is a deed whereby the obligor 
 obliges himself, his heirs, executors, and administrators, to pay a 
 certain sum of money to another at a day appointed. If this be 
 all, the bond is called a single one, simplex obligatio : but there 
 is generally a condition added, that if the obligor does some par- 
 ticular act, the obligation shall be void, or else shall remain in 
 full force : as payment of rent ; performance of covenants in a 
 deed ; or repayment of a principal sum of money borrowed of the 
 
 But by statute passed in that year, it was provided that freehold estates in 
 possession, as well as in reversion, might be conveyed by " grant ;" and this 
 IS now the regular method of transferring title to such estates, the title pass- 
 ing by the delivery of the deed. (Stat. 8 & 9 Vict., c. 106.) But the use of the 
 word "grant " is not necessary. (44 & 45 Vict., c. 41, s. 49.) 
 
 21 Most of the various modes of conveyance of estates in land, which are 
 enumera ;ed by Blackstone, have been, at different periods, in more or less 
 general use in the United States. But feoffment was abolished, or fell into 
 disuse, at an early date, and the most commonly employed conveyances in 
 transferring a present title or estate in possession, have been those derived 
 from the Statute of Uses ; while "grants " have been applied, as at common 
 law, to the conveyance of incorporeal hereditaments, or estates in reversion 
 and remainder. The terms " lease," " partition," " release," " surrender," 
 " assignment," etc., as denoting modes of conveyance, have much the same 
 extent of meaning in this country as in England. One of the most common 
 forms of deed in use throughout the country, has been that of "bargain 
 and sale." In a number of the States, the form and effect of this and 
 other conveyances have been variously modified by statute. In some of the 
 States, moreover, particular forms of deeds have been prescribed by statute; 
 tnough this has not generally been done in exclusion of the common law 
 forms, which may therefore also be used, and be enforceable . As an ex- 
 ample of such statutory changes, the act of New York may be referred to, 
 which provides that deeds of bargain and sale, and of lease and release, 
 may continue to be used, but shall be deemed grants, (i. R. S., 739, § 142) 
 
OF ALIEN A TION B Y DEED. 48 1 
 
 obligee, with interest, which principal sum is usually one-half of 
 the penal sum specified in the bond. In case this condition is 
 not performed, the bond becomes forfeited, or absolute at law, 
 and charges the obligor, while living ; and after his death the 
 obligation descends upon his heir, who (on defect of personal 
 assets) is bound to discharge it, provided he has real assets by 
 descent as a recompense. So that it may be called, though not 
 a direct, yet a collateral, charge upon the lands. How it affects 
 the personal property of the obligator will be more properlv con- 
 sidered hereafter. 
 
 If the condition of a'bond be impossible at the time of making 
 it, or be to do a thing contrary to some rule of law that is merely 
 positive, or be uncertain, or insensible, the condition alone is 
 void, and the bond shall stand single, and unconditional ; for it 
 is the folly of the obligor to enter into such an obligation, from 
 which he can never be released. If it be to do a thing that is 
 malum in se, the obligation itself is void : for the whole is an 
 unlawful contract, and the obligee shall take no advantage from 
 such a transaction. And if the condition be possible at the time 
 of making it, and afterwards *becomes impossible by the [*341 
 act of God, the act of law, or the act of the obligee himself, there 
 the penalty of the obligation is saved ; for no prudence or fore- 
 sight of the obligor could guard against such a contingency.^'' On 
 the forfeiture of a bond, or its becoming single, the whole penalty 
 was formerly recoverable at law : but here the courts of equity 
 interposed, and would not permit a man to take more than in 
 conscience he ought ; viz. his principal, interest, and expenses, 
 in case the forfeiture accrued by non-payment of money borrow- 
 ed ; the damages sustained, upon non-performance of covenants' 
 and the like. And the like practice having gained some footing 
 in the courts of law, the statute 4 and 5 Ann., ch. 16, at length 
 enacted, in the same spirit of equity, that, in case of a bond con- 
 ditioned for the payment of money, the payment or tender ©f the 
 principal sum due, with interest and costs, even though the-bond 
 be forfeited and a suit commenced thereon, shall be a fuBl. satis- 
 faction and discharge. 
 
 2. A recognizance is an obligation of record, which a- man 
 enters into before some court of record or magistrate duly 
 authorized, with condition to do some particular act ; as to ap 
 " See People v. Bartlett, 3 Hill, 570 ; People v. Manning, 8 Cow. 297. 
 31 
 
482 OF ALIENA TION B V DEED. 
 
 pear at tl.e assizes, to keep the peace, to pay a debt, or the like, 
 It is in most respects like another bond : the difference being 
 chiefly this.: that the bond is the creation of a fresh debt or 
 obligation de novo, the recognizance is an acknowledgment of a 
 former debt upon record ; the form whereof is, " that A. B. doth 
 acknowledge to owe to our lord the king, to the plaintiff, to 
 C. D. or the like, the sum of ten pounds," which condition to be 
 void on performance of the thing stipulated : in which case the 
 king, the plaintiff, C. D., etc., is called the cognizee, " is cui 
 cognoscitur ; " as he that enters into the recognizance is called the 
 cognizor, " is qui cognoscit!' This, being either certified to or 
 taken by the officer of some court, is witnessed only by the 
 record of that court, and not by the party's seal : so that it is 
 not in strict propriety a deed, though the effects of it are greater 
 *342] than a *common obligation, being allowed a priority in 
 point of payment, and binding the lands of the cognizor, from 
 the time of enrollment on record. There are also other recogni- 
 zances, of a private kind, in nature of a statute staple, by virtue 
 of the statute 23 Hen. VIII., ch. 6, which have been already 
 explained, and shown to be a charge upon real property. 
 
 3. A defeasance, on a bond, or recognizance, or judgment 
 recovered, is a condition which, when performed, defeats or un- 
 does it, in the same manner as a defeasance of an estate before 
 mentioned. It differs only from the common condition of a 
 bond, in that the one is always inserted in the deed or bond 
 itself, the other is made between the same parties by a' separate, 
 and frequently a subsequent deed. This, like the condition of a 
 bond, when performed, discharges and disincumbers the estate 
 of the obligor. 
 
 These are the principal species of deeds or matter in pais, 
 by which estates may be either conveyed, or at least affected 
 Among which the conveyances to uses are by much the most 
 frequent of any : though in these there is certainly one palpal)le 
 defect, the want of sufficient notoriety ; so that purchasers or 
 creditors cannot know, with any absolute certainty, what the 
 estate, and the title to it, in reality are, upon which they are to 
 l^y out or to lend their money. In the ancient feudal method of 
 conveyance (by giving corporal seizin of the lands), this noto- 
 riety was in some measure answered ; but all the advantages 
 resulting from thence are no.v totally defeated by the introduc- 
 
OF ALIENATION BY MATTER OF RECORD. 483 
 
 tion of death-bed devises and secret conveyances : and there has 
 never been yet any sufficient guard provided against fraudulent 
 charges and incumbrances ; since the disuse of the old Saxon 
 custom of transacting all conveyances at the county court, and 
 entering a memorial of them in the chartulary or leger-book of 
 some adjacent monastery ; and the failure of the general register 
 established by King Richard the First, for • the starrs or mort- 
 gages made to *Jews, in the capitula de yudceis, of which [*343 
 Hoveden has preserved a copy. How far the establishment of 
 a like general register, for deeds, and wills, and other acts affect- 
 ing real property, would' remedy this inconvenience, deserves to 
 be well considered. In Scotland every act and event, regarding 
 the transmission of property, is regularly entered on record. 
 And some of our own provincial divisions, particularly the ex- 
 tended county of York, and the populous county of Middlesex, 
 have prevailed with the legislature to erect such register in 
 their several districts. But, however plausible these provisions 
 may appear in theory, it hath been doubted by very competent 
 judges, whether more disputes have not arisen in those counties 
 by the inattention and omissions of parties, than prevented by 
 the use of registers.^ 
 
 "In regard to the record of deeds in this country, see ante, p. 454, note, 
 
 12. 
 
 CHAPTER XXI. 
 
 [bL. COMM. — BOOK II. CH. XXI.] 
 
 Of Alienation by Matter of Record. 
 
 Assurances by matter of record are such as do not entirely 
 depend on the act or consent of the parties themselves : but the 
 t sanction of a court of record is called in to substantiate, preserve, 
 and be a perpetual testimony of the transfer of property from 
 one man to another ; or of its establishment, v/hen already trans- 
 ferred. Of this nature are: i. Private acts of parliament. 2. 
 The king's grants. 3. Fines. 4. Common recoveries. 
 
 I. Private acts of parliament are, especially of late years, 
 become a very common mode of assurance. For it may some 
 
484 OF ALIENATION BY MATTER OF RECORD. 
 
 times happen, that by the ingenuity of some, and the blunder! 
 of other practitioners, an estate is most grievously entangled by 
 a multitude of contingent remainders, resulting trusts, springing 
 uses, executory devises, and the like artificial contrivances (a 
 confusion unknown to the simple conveyances of the common 
 law) ; so that it is out of the power of either the courts of law or 
 equity to relieve fhe owner. Or it may sometimes happen, 
 that by the strictness or omissions of family-settlements, the 
 tenant of the estate is abridged of some reasonable power (as 
 letting leases, making a jointure for a wife, or the like), which 
 power cannot be given him by the ordinary judges either in 
 common law or equity. Or it may be necessary, in settling an 
 estate, to secure it against the claims of infants or other persons 
 under legal disabilities ; who are not bound by any judgments 
 or decrees of the ordinary courts of justice. In these or other 
 *345] cases of *the like kind, the transcendent power of parlia- 
 ment is called in, to cut the Gordian knot ; and by a particular 
 law, enacted for this very purpose, to unfetter an estate ; to give 
 its tenant reasonable powers ; or to assure it to a purchaser, against 
 the remote or latent claims of infants or disabled persons, by 
 settling a proper equivalent in proportion to the interest so 
 barred. This practice was carried to a great length in the year 
 succeeding the Restoration ; by setting aside many conveyances 
 alleged to have been made by constraint, or in order to screen 
 the estates from being forfeited during the usurpation. And at 
 last it proceeded so far, that, as the noble historian* expresses it, 
 every man had raised an equity in his own imagination, that he 
 thought was entitled to prevail against any descent, testament, 
 or act of law, and to find relief in parliament : which occasioned 
 the king at the close of the session to remark, that the good old 
 rules of law are the best security ; and to wish, that men might 
 not have too much cause to fear that the settlements which 
 they make of their estate, shall be too easily unsettled, when 
 they are dead, by the power of parliament. 
 
 Acts of this kind are, however, at present carried on, in both 
 houses, with great deliberation and caution ; particularly in the 
 House of Lords they are usually referred to two judges to exam- 
 ine and report the facts alleged, and to settle all technical 
 forms. Nothing also is done without the consent, expressly 
 • Lord Clarendon, Contin. 162. 
 
OF ALIENA TION BY MA TTER OF RECORD. 485 
 
 given, of all parties in being, and capable of ponsent, that have 
 the remotest interest in the matter ; unless such consent shall 
 appear to be perversely and without any reason withheld. And, 
 as was before hinted, an equivalent in money or other estate 
 is usually settled upon infants, or persons not in esse, or not 
 of capacity to act for themselves, who are to be concluded by 
 this act. And a general saving is constantly added, at the close 
 of the bill, of the right and interest of all persons whatsoever ; 
 except those whose consent is so given or purchased, and who 
 are therein particularly named : though it hath been holden, 
 that, even if such saving be omitted, the act shall bind none but 
 the parties. 
 
 *A law thus made, though it binds all parties to the [*346 
 bill, is yet looked upon rather as a private conveyance, than as 
 the solemn act of the legislature. It is not therefore allowed to 
 be ^public, but a mere private statute ; it is not printed or pub- 
 lished among the other laws of the session ; it hath been re- 
 lieved against, when obtained upon fraudulent suggestions ; it 
 hath been holden to be void, if contrary to law and reason : and 
 no judge or jury is bound to take notice of it unless the same be 
 specially set forth and pleaded to them. It remains, however, 
 enrolled among the public records of the nation, to be forever 
 preserved as a perpetual testimony of the conveyance or assur- 
 ance so made or established.* 
 
 ' In this country, the authority of the legislature to transfer a valid title 
 to private estates is, to a large extent, restricted by constitutional provisions. 
 The power to take private property for public uses, in the exercise of the 
 right of eminent domain, is well established ; but this necessarily involves 
 the payment of an appropriate measure of compensation to the owner, and 
 is sanctioned upon no other basis. But the State has no power to transfer 
 the property of one private citizen to another, thus changing mere individual 
 ownership. This would be an unwarrantable interference with vested rights 
 and legal prerogatives, guaranteed by our system of constitutional govern- 
 ment, and such legislation would be ineffectual to divest the owner of his 
 estate. But it is within the proper power of legislation, in many instances, 
 to confirm defective conveyances, to control, the disposition and management 
 of property belonging to persons under disability, etc. The cases in which 
 a legislative act may avail in creating a good title to land are thus classified 
 by Mr. Washburn : "(i.) In confirming a title, where the proceedings or sale 
 by which it has been attempted to convey land, have proved to be defective 
 or incomplete, for informality. (2.) Where the owners of the land to be 
 conveyed, have been under a disability, like that of infancy, lunacy, or the 
 like, where the State acts as a kind oi parens patriee, in taking cire of the 
 
486 OF ALIENATION BY MATTER OF RECORD. 
 
 II. The kings grants are also matter of public record. For, 
 as St. Germyn says, the king's excellency is so high in the law, 
 that no freehold may be given to the king, nor derived from him 
 but by matter of record. And to this end a variety of offices 
 are erected, communicating in a regular subordination one with 
 another, through which all the king's grants must pass, and be 
 transcribed, and enrolled ; that the same may be narrowly in- 
 spected by his officers, who will inform him if anything contained 
 therein is improper, or unlawful to be granted. These grants 
 whether of lands, honors, liberties, franchises, or aught besides, 
 are contained in charters, or letters patent, that is, open letters, 
 litera patentes : so called because they are not sealed up, but 
 exposed to open view, with the great seal pendant at the bottom ; 
 and are usually directed or addressed by the king to all his sub- 
 jects at large. And therein they differ from certain other let- 
 ters of the king, sealed also with his great seal, but directed to 
 particular persons and for particular purposes : which therefore, 
 not being proper for public inspection, are closed up and sealed 
 on the outside, and are thereupon called writs c/ose, litem 
 clausce, and are recorded in the close-rolls, in the same manner as 
 the others are in the patent-rolls.^ 
 
 property of its subjects incapable of managing their own affairs. (3.) Where 
 the sale is made for the purpose of satisfying the debts of a person de- 
 ceased." (Washburn on Real Prop., vol. iii., p. 228, 5th ed.; which see 
 for illustrative examples.) 
 
 ^ Grants in England by letters-patent, such as are here described, are 
 said to be now antiquated as regards lands and other hereditaments of the 
 nature of property. For alienations of lands and other hereditaments en- 
 joyed by the sovereign in right of the crown, have been from time to time 
 regulated by various Acts of Parliament, restricting them within certain 
 limits, and making them subject to various conditions. These statutes are 
 not of sufiScient importance to the American student to require speciiic 
 statement. (See Broom & H. Comm., ii. 553.) 
 
 The acquisition of title to lands by public grant, is of much consequence 
 in the United States. By this is meant the transfer to an individual of an 
 estate in lands which previously belonged either to the Government of the 
 United States, or of any particular State. A very large extent of public 
 lands, vested in the Federal Government, has been disposed of in this 
 way, under regulations and methods prescribed by various acts of Congress. 
 Most of these lands have been situated in the western part of the Union. 
 In like manner, a number of the original States acquired public lands by 
 succession to the Colonies, or by cession from the general govemmenti 
 which they afterwards disposed of, in whole or in part, by public grant. 
 
OF ALIENATION BY MATTER OF RECORD. 48; 
 
 Grants or letters-patent must first pass by bill ; which is 
 prepared by the attorney and solicitor general, in consequence 
 •of a warrant from the crown ; and is then signed, that [*347 
 is, subscribed at the top, with the king's own sign manual, and 
 sealed with his privy signet, which is always in the custody of 
 the principal secretary of state ; and then sometimes it imme- 
 diately passes under the great seal, in which case the patent is 
 subscribed in these words, "per ipsum regent, by the king him- 
 self." Otherwise the course is to carry an extract of the bill to 
 the keeper of the privy seal, who makes out a writ or warrant 
 thereupon to the chancery ; so that the sign manual is the war- 
 rant to the privy seal, and the privy seal is the warrant to the 
 great seal : and in this last case the patent is subscribed, "-pet 
 breve de privato sigillo, by writ of privy seal." But there are 
 some grants which only pass through certain offices, as the ad- 
 miralty or treasury, in consequence of a sign manual, without 
 the confirmation of either the signet, the great, or the privy seal. 
 
 The manner of granting by the king does not more differ 
 from that by a subject, than the construction of his grants, when 
 made. i. A grant made by the king, at the suit of the grantee, 
 shall be taken most beneficially for the king, and against the 
 party ; whereas the grant of a subject is constructed most strongly 
 against the grantor. Wherefore it is usual to insert in the king's 
 grants, that they are made, not at the suit of the grantee, but 
 "ex speciali gratia, certa scientia, et m.ero motu regis ; " and then 
 they have a more liberal construction. 2. A subject's grant 
 shall be construed to include many things, besides what are ex- 
 pressed, if necessary for the operation of the grant. Therefore, 
 in a private grant of the profits of land for one year, free ingress, 
 egress, and regress, to cut and carry away those profits, are also 
 inclusively granted : and if a feoffment of land was made by the 
 lord to his villein, this operated as a manumission ; for he was 
 otherwise unable to hold it. But the king's grant shall not 
 
 The instrument by which a title to such lands is conveyed is called a "pa- 
 tent," and, under the laws of Congress, must be signed by the President, or some 
 one appointed to represent him for this purpose, and must be under the seal 
 of the United States. Like an ordinary deed, it contains a description of the 
 premises granted, and when regularly drawn, forms a valid and effectual evi- 
 dence of title. Patents under State laws are of the same general nature, 
 though they must be under the seal of the State. (See fiirther Washburn on 
 Real Prop., iii., pp. 192-219, sth ed. ; C. S. v. Schurz, 102 U. S. 378.) 
 
488 OF ALIENATION BY MATTER OF RECORD. 
 
 enure to any other intent, than that which is precisely expressed 
 in the grant. As if he grants land to an alien, it operates noth- 
 *348] ing ; for *such grant shall not also enure to make him a 
 denizen, that he may be capable of taking by grant. 3. When 
 it appears from the face of the grant, that the king is mistaken, 
 or deceived, either in matter of fact or matter of law, as in case 
 of false suggestion, misinformation, or misrecital of former 
 grants : or if his own title to the thing granted be different from 
 what he supposes ; or if the grant be informal ; or if he grants 
 an estate contrary to the rules of law ; in any of these cases the 
 grant is absolutely void. For instance ; if the king grants lands 
 to one and his heirs male, this is merely void ; for it shall not 
 be an estate-tail, because there want words of procreation, to as- 
 certain the body out of which the heirs shall issue : neither is it 
 a fee-simple, as in common grant it would be; because it may 
 reasonably be supposed, that the king meant to give no more 
 than an estate-tail : the grantee is therefore (if anything) nothing 
 more than tenant at will. And to prevent deceits of the king, 
 with regard to the value of the estate granted, it is particularly 
 provided by the statute I Hen. IV., ch. 6, that no grant of his 
 shall be good, unless in the grantee's petition for them, express 
 mention be made of the real value of the lands. 
 
 III. We are next to consider a very usual species of assur- 
 ance, which is also of record ; vis. a fine of lands and tenements, 
 (n which it will be necessary to explain, i. The nature of a fine; 
 2. Its force and effect.^ 
 
 I. A fine is sometimes said to be a feoffment of record: 
 though it might with more accuracy be called an acknowledg- 
 ment of a feoffment on record. By which is to be understood, 
 that it has at least the same force and effect with a feoffment, 
 in the conveying and assuring of lands : though it is one of those 
 methods of transferring estates of freehold by the common-law, in 
 *349] which livery of seizin is not necessary *to be actually 
 given ; the supposition and acknowledgment thereof in a court 
 ^ Fines were abolished in England, by statute 3 & 4 Will. IV., ch. 74. 
 This method of conveyance was somewhat employed at an early period in a 
 few American States ; but in a number of the States it has been expressly 
 abolished, and is nowhere now in use in this country. The text of Black- 
 stone upon this subject, and upon that of " common recoveries," which fol- 
 lows, has been slightly abridged, by the omission of a few passages deemed 
 comparatively unimportant. 
 
OF A LIEN A TION BY MA TTER OF RECORD 489 
 
 of record, however fictitious, inducing an equal notoriety. . But, 
 more particularly, a fine may be described to be an amicable 
 composition or agreement of a suit, either actual or fictitious, 
 by leave of the king or his justices : whereby the lands in 
 question bacome, or are acknowledged to be, the right of 
 one of the parties. In its original it was founded on an actual 
 suit, commenced at law for recovery of the possession of land 
 or other hereditaments ; and the possession thus gained by such 
 composition was found to be so sure and effectual, that fictitious 
 actions were, and continue to be, every day commenced, for the 
 sake of obtaining the, same security. 
 
 A fine is so called because it puts an end, not only to the suit 
 thus commenced, but also to all other suits and controversies 
 concerning the same matter. Fines indeed are of equal antiquity 
 with the first rudiments of the law itself ; are spoken of by Glan- 
 vil and Bracton in the reigns of Hen. II. and Hen. III., as things 
 thea well known and long established ; and instances have been 
 produced of them even prior to the Norman invasion. So that the 
 statute 18 Edw. I., called modus levandi fines, did not give them 
 original, but only declared and regulated the manner in which 
 they should be levied or carried on. And that is as follows : — 
 
 1. The party to whom the land is to be conveyed or assured, 
 commences an action or suit at law against the other, *gener- [*350 
 ally an action of covenant by suing out a writ of prcecipc, 
 called a writ of covenant, the foundation of which is a supposed 
 agreement or covenant, that the one shall convey the lands to the 
 other ; on the breach of which agreement the action is brought. 
 On this writ there is due to the king, by ancient prerogative a 
 primer fine, or a noble for every five marks of land sued for ; that 
 is, one-tenth of the annual value. The suit being thus commenced, 
 then follows : — 
 
 2. The licentia concordandi, or leave to agree the suit. For, 
 as soon as^he action is brought, the defendant, knowing himself 
 to be in the wrong, is supposed to make overtures of peace 
 and accommodation to the plaintiff. Who, accepting them, but 
 having, upon suing out the writ, given pledges to prosecute his 
 suit, which he endangers if he now deserts it without license, he 
 therefore applies to the court for leave to make the matter 
 up This leave is readily granted, but for it there is also another 
 fine due to the king by his prerogative, which is an ancient 
 
490 OF ALIEN A TION BY MA TTER C F RECORD. 
 
 revenue of the crown, and is called th& king's silver, or sometimes 
 the post fine ; with respect to the primer fine before men- 
 tioned. And it is as much as the primer fiite and half as much 
 more, or ten shillings for every five marks of land; that is, three- 
 twentieths of the supposed annual value. 
 
 3. Next comes the concord, or agreement itself after leave 
 obtained from the court : which is usually an acknowledgment 
 from the deforciants (or those who keep the other out of posses- 
 sion) that the lands in question are the right of the complainant. 
 And from this acknowledgment, or recognition of right, the party 
 *351] levying the fine is called the *cognizor, and he to whom it 
 is levied the cognizee. This acknowledgment must be made 
 either openly in the court of common pleas, or before the lord 
 chief justice of that court ; or else before one of the judges of 
 that court, or two or more commissioners in the country, empow- 
 ered by a special authority called a writ of dedimus potestatem, 
 which judges and commissioners are bound by statute 18 Edw. I., 
 St. 4, to take care that the cognizors be of full age, sound memory 
 and out of prison. If there be any feme-covert among the 
 cognizors, she is privately examined whether she does it willing- 
 ly and freely, or by compulsion of her husband. 
 
 By these acts all the essential parts of a fine are completed : 
 and, if the cognizor dies the next moment after the fine is acknowl- 
 edged, provided it be subsequent to the day on which the writ is 
 made returnable, still the fine shall be carried on in all its re- 
 maining parts : of which the next is : — 
 
 4. The note of the fine ; which is only an abstract of the writ of 
 covenant, and the concord ; naming the parties, the parcels 
 of land, and the agreement. This must be enrolled of record in 
 the proper office, by direction of the statute 5 Hen. IV., ch. 14. 
 
 5. The fifth part is the foot of the fine, or conclusion of 
 it : which includes the whole matter, reciting the parties, day, 
 year, and place, and before whom it was acknowledged or 
 levied. Of this there are indentures made, or engrossed, at the 
 chirographer's office, and delivered to the cognizor and the 
 cognizee; usually beginning thus, " hcec estfinalis concordia, this 
 is the final agreement," and then reciting the whole proceeding 
 at length. And thus the fine is completely levied at common law. 
 2. We are next to consider "Cc^e. force and effect of a fine. These 
 principally depend, at this day, on the common law, and the two 
 
OF ALIENATION BY MATTER OF RECORD. 491 
 
 statutes, 4 Hen. VII., ch. 24 and 32 Hen. VIII., cli. 36. The 
 ancient common law, with respect to this point,* is very [*354 
 forcibly declared by the statute 18 Edw. I. in these words : " And 
 the reason, why such solemnity is required in the passing of a 
 fine, is this ; because the fine is so high a bar, and of so great 
 force, and of a nature so powerful in itself, that it precludes not 
 only those which are parties and privies to the fine, and their 
 lieirS; but all other persons in the world, who are of full age, out 
 of prison, of sound memory, and within the four seas, the day of 
 the fine levied ; unless they put in their claim on the foot of the 
 fine within a year and a day." But this doctrine, of barring the 
 right by non-claim, was abolished for a time by a statute made 
 in 34 Edw. III., ch. 16, which admitted persons to claim and fal- 
 sify a fine, at any indefinite distance ; whereby, as Sir Edward 
 Coke observes, great contention arose, and few men were sure 
 of their possessions, till the parliament, held 4 Hen. VII., reformed 
 that mischief, and excellently moderated between the latitude 
 given by the statute and the rigor of the common law. For the 
 statute then made, restored the doctrine of non-claim ; but ex- 
 tended the time of claim. So that now, by that statute, the 
 right of all strangers whatsoever is bound, unless they make 
 claim, by way of action or lawful entry, not within one year and 
 a day, as by the common law, but within ^z/^ years after proclama- 
 tions made : except feme-coverts, infants, prisoners, persons 
 beyond the seas, and such as are not of whole mind ; who have 
 five years allowed to them and their heirs, after the death of 
 their husbands, their attaining full age, recovering their liberty, 
 returning into England, or being restored to their right mind. 
 
 It seems to have been the intention of that politic prince, 
 King Henry VII., to have covertly by this statute extended fines 
 to have been a bar of estates-tail, in order to unfetter the more 
 easily the estates of his powerful nobility, and lay *them [*355 
 more open to alienations ; being well aware that power will 
 always accompany property. But doubts having arisen whether 
 they could, by mere implication, be adjudged a sufficient bar 
 (which they were expressly declared not to be by the statute de 
 donis), the statute 32 Hen. VIII., ch. 36, was thereupon made ; 
 which removes all difficulties, by declaring that a fine levied by 
 any person of full age, to whom or to whose ancestors lands have 
 been entailed, shall be a perpetual bar to them and their heirs 
 
492 OF ALIEN A TION BY MA TTER OF RECORD. 
 
 claiming by force of such entail : unless the fine be levied by a 
 woman after the death of her husband, of lands which were, by 
 the gift of him or his ancestors, assigned to her in tail for her 
 jointure ; or unless it be of lands entailed by act of parliament 
 or letters patent, and whereof the reversion belongs to the 
 crown. 
 
 From this view of the common law, regulated by these stat- 
 utes, it appears, that a fine is a solemn conveyance on record 
 from the cognizor to the cognizee, and that the persons bound 
 by a fine zx& parties, privies, and strangers. 
 
 TYiQ parties are either the cognizors, or cognizees, and these 
 are immediately concluded by the fine, and barred of any latent 
 right they might have, even though under the legal impediment 
 of coverture. And indeed, as this is almost the only act that a 
 feme-covert, or married woman, is permitted by law to do (and 
 that because she is privately examined as to her voluntary con- 
 sent, which removes the general suspicion of compulsion by her 
 husband), it is therefore the usual and almost the only safe 
 method, whereby she can join in the sale, settlement, or incum- 
 brance, of any estate. 
 
 Privies to a fine are such as are any way related to the par- 
 ties who levy the fine, and claim under them by any right of 
 blood or other right of representation. Such as are the heirs 
 general of the cognizor, the issue in tail since the statute of 
 Henry the Eighth, the vendee, the devisee, and all others who 
 must make their title by the persons who levied the fine. For 
 *356] the act of the ancestor shall bind the heir, and the act *of 
 the principal his substitute, or such as claim under any convey- 
 ance made by him subsequent to the fine so levied. 
 
 Strangers to a fine are all other persons in the world, except 
 only parties and privies. And these are also bound by a fine, 
 unless, within five years after proclamations made, they interpose 
 their claim ; provided they are under no legal impediments, and 
 have then a present interest in the estate. The impediments, as 
 hath before been said, are coverture, infancy, imprisonment, in- 
 sanity, and absence beyond sea ; and persons, who are thus inca- 
 pacitated to prosecute their rights, have five years allowed them 
 to put in their claims after such impediments are removed. Per- 
 sons also that have not a present, but a future interest only, as 
 those in remainder or reversion, have five years allowed them to 
 
OF ALIENATION BY MATTER OF RECORD. 493 
 
 claim in, from the time that such right accrues. And if within 
 that time they neglect to claim, or (by the statute 4 Ann, ch. 16,) 
 if they do not bring an action to try the right within one year 
 after making such claim, and prosecute the same with effect, all 
 persons whatsoever are barred of whatever right they may have, 
 by force of the statute of non-claim. 
 
 But, in order to make a fine of any avail at all, it is necessary 
 that the parties should have some interest or estate in the lands 
 to be affected by it. Else it were possible that two strangers, by 
 a mere confederacy, might without any risk defraud the owners 
 by levying fines of thejr lands. And thus much for the convey- 
 ance or assurance by fine : which not only, like other convey- 
 ances, binds the grantor himself, and his heirs ; but also all man- 
 kind, whether concerned in the transfer or no, if they fail to 
 put in their claims within the time allotted by law. 
 
 IV. The fourth species of assurance, by matter of record, is 
 a common recovery^ Concerning the original of which it was 
 formerly observed that common recoveries were invented by the 
 ecclesiastics to elude the statutes of mortmain ; and afterwards 
 encouraged by the finesse of the courts of law in 12 Edw. IV., 
 in order to put an end to all fettered inheritances, and bar not 
 only estates-tail, but also all remainders and reversions expectant 
 thereon. I am now therefore only to consider, first, the nature 
 of a common recovery ; and, secondly, its force and effect. 
 
 I. And, first, the nature of it ; or what a common recovery 
 is. A common recovery is so far like a fine, that it is a suit or 
 action, either actual or fictitious : and in it the lands are recovered 
 against the tenant of the freehold ; which recovery, being a sup- 
 posed adjudication of the right, binds all persons, and vests a 
 free and absolute fee-simple in the recoveror. A recovery there- 
 fore being in the nature of an action at law, not immediately 
 compromised like a fine, but carried on through every regular 
 stage of proceeding, I am greatly apprehensive that its form and 
 method will not be easily understood by the student who is not 
 yet acquainted *with the course of judicial proceedings ; [*358 
 
 • Common recoveries have been abolished in England by statute (3 & 4 
 Will. IV., ch. 74), and are also obsolete in the United States. But al- 
 though both fines and recoveries have been done away with in both coun- 
 tries, the ancient rules of law upon these topics are of considerable histori- 
 cal importance, and have, therefore, been retained in this abridgment. 
 
494 OF ALIEN A TION BY MA TTER OF RECORD. 
 
 which cannot be thoroughly explained, till treated of at large in 
 the third book of these commentaries. However I shall endeavor 
 to state its nature and progress, as clearly and concisely as I can ; 
 avoiding, as far as possible, all technical terms and phrases not 
 hitherto interpreted. 
 
 Let us, in the first place, suppose David Edwards to be tenant 
 of the freehold, and desirous to suffer a common recovery, in 
 order to bar all entails, remainders, and reversions, and to convc)' 
 the same in fee-simple to Francis Golding. To effect this, Golding 
 is to bring an action against him for the lands ; and he according- 
 ly sues out a writ, called a pracipe quod reddat, because those 
 were its initial or most operative words, when the law proceedings 
 were in Latin. In this writ the demandant Golding alleges that 
 the defendant Edwards (here called the tenant) has no legal title 
 to the land ; but that he came into possession of it after one 
 Hugh Hunt had turned the demandant out of it. The subsequent 
 proceedings are made up into a record or recovery roll, in which 
 the writ and complaint of the demandant are first recited : 
 whereupon the tenant appears, and calls upon one Jacob Morland, 
 who is supposed, at the original purchase, to have warranted the 
 title to the tenant ; and thereupon he prays, that the said Jacob 
 Morland may be called in to defend the title which he so warrant- 
 ed. This is called the voucher, vocatio, or calling of Jacob Morland 
 to warranty ; and Morland is called the vouchee. Upon this, 
 Jacob Morland, the vouchee, appears, is impleaded, and defends 
 the title. Whereupon Golding, the demandant, desires leave of 
 the court to imparl, or confer with the vouchee in private ; which 
 is (as usual) allowed him. And soon afterwards the demandant, 
 Golding, returns to court, but Morland the vouchee disappears, 
 or makes default. Whereupon judgment is given for the de- 
 mandant, Golding, now called the recoveror, to recover the 
 lands in question against the tenant, Edwards, who is now the 
 *359] recoveree ; *and Edwards has judgment to recover of Ja- 
 cob Morland lands of equal value, in recompense for the lands 
 so warranted by him, and now lost by his default ; which is 
 agreeable to the doctrine of warranty mentioned in the preceding 
 chapter. This is called the recompense, or recovery in value. 
 But Jacob Morland having no lands of his own, being usually the 
 crier of the court (who, from being frequently thus vouched, is 
 called the common vouchee), it is plain that Edwards has only a 
 
OF ALIEN A TION BY MA TTER OF RECORD. 495 
 
 nominal recompense for the land so recovered against him by 
 Golding ; which lands are now absolutely vested in the said re- 
 coveror by judgment of law, and seizin thereof is delivered by the 
 sheriff of the county. So that this collusive recovery operates 
 merely in the nature of a conveyance in fee-simple, from Edwards 
 the tenant in tail, to Golding the purchaser. 
 
 • This supposed recompense in value is the reason [*360 
 why the issue in tail is held to be barred by a common recovery. 
 For if the recoveree should obtain a recompense in lands from 
 the common vouchee (which there is a possibility in contempla- 
 tion of law, though a .very improbable one, of his doing), these 
 lands would supply the place of those so recovered from him by 
 collusion, and would descend to the issue in tail. This reason 
 will also hold with equal force, as to most remainder-men and re- 
 versioners ; to whom the possibility will remain and revert, as a 
 full recompense for the realty, which they were otherwise entitled 
 to: but it will not always hold: and therefore, as Pigot says, the 
 judges have been even astuti, in inventing other reasons to main- 
 tain the authority of recoveries. And, in particular, it hath been 
 said, that, though the estate-tail is gone from the recoveree, yet 
 it is not destroyed, but only transferred; and still subsists, and 
 will ever continue to subsist (by construction of law) in the 
 recoverer, his heirs and assigns : and, as the estate-tail so con- 
 tinues to subsist for ever, the remainders or reversions expect- 
 ant on the determination of such an estate-tail can never take 
 place. 
 
 To such awkward shifts, such subtile refinements, and such 
 strange reasoning, were our ancestors obliged to have recourse, 
 in order to get the better of that stubborn statute de donis. The 
 design for which these contrivances were set on foot, was cer- 
 tainly laudable ; the unrivetting the fetters of estates-tail, which 
 were attended with a legion of mischiefs to the commonwealth : 
 but, while we applaud the end, we cannot but admire the means. 
 Our modern courts of justice have indeed adopted a more manly 
 way of treating the subject ; by considering common recoveries 
 in no other light than as the formal mode of conveyance, by which 
 tenant in tail is enabled to aliene his lands. But, since the ill 
 consequences of fettered inheritances are now generally seen 
 •and allowed, and of course the utility and expedience of [*361 
 setting theni at liberty are apparent ; it hath often been wished. 
 
496 OF ALIENATION BY MATTER OF RECORD. 
 
 that the process of this conveyance was shortened, and rendered 
 less subject to niceties. 
 
 2. The force and effect of common recoveries may appear, 
 from what has been said, to be an absolute bar not only of all 
 estates-tail, but of remainders and reversions expectant on the 
 determination of such estates. So that a tenant in tail may, by 
 this method of assurance, convey the lands held in tail to the 
 recoverer, his heirs and assigns, absolutely free and discharged 
 of all conditions and limitations in tail, and of all remainders and 
 reversions. 
 
 In all recoveries it is necessary that the recoveree, or tenant to 
 the prcscipe, as he is usually called, be actually seized of the free- 
 hold, else the recovery is void. For all actions, to recover the seizin 
 of lands, must be brought against the actual tenant of the free- 
 hold, else the suit will lose its effect ; since the freehold cannot 
 be recovered of him who has it not. And though these recover- 
 ies are in themselves fabulous and fictitious, yet it is necessary 
 that there be actores fabul<2, properly qualified. But the nicety 
 thought by some modern practioners to be requisite in conveying 
 the legal freehold, in order to make a good tenant to the precipe, 
 is removed by the provisions of the statute 14 Geo. II., ch. 20, 
 which enacts, with a retrospect and conformity to the ancient 
 rule of law, that, though the legal freehold be vested in lessees, 
 yet those, who are entitled to the next freehold estate in remain- 
 der or reversion may make a good tenant to the prcecipe ; — that 
 though the deed or fine which creates such tenant be subsequent 
 to the judgment of recovery, yet, if it be in the same term, the 
 recovery shall be valid in law ; — and that, though the recovery 
 itself do not appear to be entered, or be not regularly entered, 
 on record, yet the deed to make a tenant to the prcecipe, and de- 
 *363] clare the uses of the recovery, shall, *after a possession 
 of twenty years, be sufficient evidence, on behalf of a purchaser 
 for valuable consideration, that such recovery was duly suffered. 
 And this may suffice to give the student a general idea of com 
 mon recoveries, the last species of assurance by matter of 
 -e;ord. 
 
OF ALIENA TION B V DE VISE. 497 
 
 CHAPTER XXII. 
 
 [bL. COMM. BOOK II. CH. XXIII.] 
 
 Of Alienation by Devise. 
 
 The last method of conveying real property, is, by devise, ot 
 disposition contained in a man's last will and testament. And, 
 in considering this subja:t, I shall not at present inquire into the 
 nature of wills and testaments, which are more properly the in- 
 struments to convey personal estates ; but only into the original 
 and antiquity of devising real estates by will, and the construc- 
 tion of the several statutes upon which that power is now founded. 
 
 It seems sufificiently clear, that, before the Conquest, lands 
 were devisable by will. But, upon the introduction of the mili- 
 tary tenures, the restraint of devising lands naturally took place, 
 as a branch of the feudal doctrine of non-alienation without the 
 consent of the lord. And some have questioned whether this 
 restraint (which we may trace even from the ancient Germans) 
 was not founded upon 'truer principles of policy, than the power 
 of wantonly disinheriting the heir by will, and transferring the 
 estate, through the dotage or caprice of the ancestor, from those 
 of his blood to utter strangers. For this, it is alleged, maintain 
 ed the balance of property, and prevented one man from growing 
 too big or powerful for his neighbors ; since it rarely happens, 
 •that the same man is heir to many others, though by art [*374 
 and management he may frequently become their devisee. Thus 
 the ancient law of the Athenians directed that the es.tate of the 
 deceased should always descend to his children ; or, on failure of 
 lineal descendants, should go to the collateral relations : which 
 had an admirable effect in keeping up equality, and preventing 
 the accumulation of estates. But when Solon made a slight al- 
 teration, by permitting them (though only on failure of issue) to 
 dispose of their lands by testament, and devise away estates from 
 the collateral heir, this soon produced an excess of wealth in some, 
 and of poverty in others : which, by a natural progression, first 
 produced popular tumults and dissensions ; and these at length 
 ended in tyranny, and the utter extinction of liberty : which wa3 
 32 
 
498 OF ALIEN A TWN B_ Y DE VISE. 
 
 quickly followed by a total subversion of their state and nation. 
 On the other hand, it would now seem hard, on account of some 
 abuses (which are the natural consequence of free agency, when 
 coupled with human infirmity), to debar the owner of lands from 
 distributing them after his death as the exigence of his family 
 affairs, or the justice due to his creditors, may perhaps require. 
 And this power, if prudently managed, has with us a peculiar 
 propriety; by preventing the very evils which resulted from Solon's 
 institution, the too great accumulation of property ; which is the 
 natural consequence of our doctrine of succession by piimogeni- 
 ture, to which the Athenians were strangers. Of this accumu- 
 lation the ill effects were severely felt even in the feudal times : 
 but it should always be strongly discouraged in a commercial 
 country, whose welfare depends on the number of moderate for 
 tunes engaged in the extension of trade. 
 
 However this be, we find that, by the common law of Eng- 
 land since the Conquest, no estate, greater than for term of years, 
 could be disposed of by testament ; except only in Kent, and in 
 some ancient burghs, and a few particular manors, where their 
 Saxon immunities by special indulgence subsisted. And though 
 *375] the feudal restraint on alienations by deed vanished very 
 early, yet this on wills continued for some centuries after : from 
 an apprehension of infirmity and imposition on the testator in 
 extremis, which made such devises suspicious. Besides, in de- 
 vises there was wanting that general notoriety, and public desig- 
 nation of the successor, whicii in descent is apparent to the 
 neighborhood, and which the simplicity of the common law al- 
 ways required in every transfer and new acquisition of property. 
 
 But when ecclesiastical ingenuity had invented the doctrine 
 of uses as a thing distinct from the land, uses began to be devised 
 very frequently, and the devisee of the use could in chancery 
 compel its execution. For it is observed by Gilbert, that, as the 
 popish clergy then generally sat in the court of chancery, they 
 considered that men are most liberal when they can enjoy their 
 Dossessions no longer : and therefore at their death would choose 
 10 dispose of them to those, who, according to the superstition 
 of the times, could intercede for their happiness in another world. 
 But, when the statute of uses had annexed the possession to the 
 use, these uses, being now the very land itself, became no longer 
 devisable • which might have occasioned a great revolution in 
 
OF ALIEN A TION BY DE VISE. 499 
 
 the law of devises, had not the statute of wills been made about 
 five years after, viz., 32 Hen. VIII., ch. i, explaiiied by 34 Hen. 
 VIII., ch. S, which enacted, that all persons being seized in fee- 
 simple (except feme-coverts,^ infants, idiots, and persons of non- 
 sane memory) might by will and testament in writing devise to 
 any other /^w^«, except to bodies corporate, two-thirds of their 
 lands, tenements, and hereditaments, held in chivalry, and the whole 
 of those held in socage : which now, through the alteration of 
 tenures by the statute of Charles the Second, amounts to the 
 whole of their landed property, except their copyhold tenements. 
 
 Corporations were ^cepted in these statutes, to prevent the . 
 extension of gifts in mortmain ; but now, by construction 
 *of the statute 43 Eliz., ch. 4, it is held, that a devise to a [*376 
 corporation for a charitable use is valid, as operating in the na- 
 ture of an appointment., rather than of a bequest. And indeed 
 the piety of the judges hath formerly carried them great lengths 
 in supporting such charitable uses ; it being held that the statute 
 of Elizabeth, which favors appointments to charities, supersedes 
 and repeals all former statutes, and supplies all defects of assur- 
 ances : and therefore not only a devise to a corporation, but a 
 devise by a copyhold tenant without surrendering to the use of his 
 will, and a devise (nay even a settlement) by tenant in tail with- 
 out either fine or recovery, if made to a charitable use, are good 
 by way of appointment.'' 
 
 With regard to devises in general, experience soon showed 
 
 ' The disability of married women to devise lands by will, has been re- 
 moved by statute in a number of the American States ; and they have been 
 empowered to thus dispose of their separate property as freely as a single 
 woman. But unless removed by statute, this disability and the others con- 
 tained in the English statutes of wills, are generally retained in the law of 
 the several States. The rules of law concerning wills of real estate must 
 not be confused with those in regard to testaments of personal property. 
 For, by the common law, a married woman might bequeath personal estate 
 by the consent of her husband, while male infants might do so at the age of 
 fourteen, and female infants at the age of twelve. But these rules have also 
 been modified by statute, in modern times, in some States ; married women 
 being empowered to hold and bequeath personal property without restric- 
 tion, and infants being required to be older in order to make a testament. 
 The statutes of the various States must be consulted as to the changes iii 
 the common law. (See ante, p. 158, note 24; past, p. 596, note 2.) 
 
 * See ante, p. 223, note 10, and p. 428, note 3, as to the power of corpora- 
 tions to take land by will, under present laws. 
 
Soo OF ALIENA TION BY DE VISE. 
 
 how difficult and hazardous a thing it is, even in matters c f pub 
 lie utility, to depart from the rules of the common law ; which 
 are so nicely constructed and so artificially connected together, 
 that the least breach in any one of them disorders for a time the 
 texture of the whole. Innumerable frauds and perjuries were 
 quickly introduced by this parliamentary method of inheritance ; 
 for so loose was the construction made upon this act by the 
 courts of law, that bare notes in the hand-writing of another per- 
 son were allowed to be good wills within the statu»-e. To remedy 
 which, the statutes of frauds and perjuries, 29 Car. II., ch. 3, 
 directs, that all devises of lands and tenements shall not only be 
 in writing, but signed by the testator, or some other person in 
 his presence, and by his express direction ; and be subscribed, 
 in his presence, by three or four credible witnesses." And a sol- 
 emnity nearly similar is requisite for revoking a devise by writing • 
 though the same may be also revoked by burning, cancelling, 
 tearing, or obliterating thereof by the devisor, or in his presence 
 and with his consent :* as likewise impliedly, by such a great and 
 entire alteration in the circumstances and situation of the devisor, 
 as ai'ises from marriage and the birth of a child." 
 
 ' By the present English law, attestation by two witnesses is sufficient 
 The laws of the different American States differ upon this point, some re- 
 quiring two witnesses, others three, etc. 
 
 * Acts of cancellation, destruction, obliteration, &c., will not amount to a 
 revocation, unless done in pursuance of an intent to revoke the will. {Dan v. 
 Brown, 4 Cow. 483 ; see 73 Me. 595 ; 15 P. D. 20 ; 7 Johns. 394.) Thus the 
 tearing up of a wUl does not constitute a revocation, if the testatrix were at 
 the tirte under such mental excitement as incapacitated her from forming a 
 reasonable and intelligent intention to revoke. (54 Barb. 274; 99 Ind. 588; 
 65 Cal. 19.) A subsequent will does not revoke a former one, unless it con- 
 tains a clause of revocation, or be inconsistent with it. (See 1 13 N. Y. 191 ; 
 
 3 Barb; Ch. 158.) If, however, there be a clause of revocation, effect will 
 be given to it, although the subsequent will makes no other disposition of 
 certain property included in the former. (Ex parte Thompson, 1 1 Paige, 
 453; sttpost, p. 601, note 8; also 88 N. Y. 377; 123 Mass. 102.) 
 
 ^ This is also the established rule in a number of the United States. (See 
 
 4 Johns. Ch. 506; I Denio, 27; 4 Gray, 162; 63 N. H. 475; 55 Conn. 171; 
 65 Md. 373.) In some States, it is also provided that the marriage of a 
 woman revokes her will previously made. It is, moreover, the present Eng- 
 lish rule that marriage alone in all cases revokes a will of realty or personalty, 
 except in certain cases where the will is made in the exercise of a power of 
 appointment. (See 120 111. 26.) 
 
OF ALIEN A TION BY DE VISE. 501 
 
 In the construction of this last statute, it has been adjudged 
 that the testator's name, written with his own hand, at the be- 
 ginning of *his will, as, " I, John Mills, do make this my last [*377 
 will and testament ; " is a sufficient signing, without any name at 
 the bottom ; though the other is the safer way.' It has also been 
 deteriuined, that though the witnesses must all see the testator 
 sign, or at least acknowledge the signing, yet they may do it at dif- 
 ferent times. But they must all subscribe their names as wit- 
 nesses in his presence, lest by any possibility they should mistake 
 the instrument.' And, in one case determined by the court of 
 king's bench, the judg^ were extremely strict in regard to the 
 credibility, or rather the competency, of the witnesses : for they 
 would not allow any legatee, nor by consequence a creditor, 
 where the legacies and debts were charged on the real estate, to 
 be a competent witness to the devise, as being too deeply con- 
 cerned in interest not to wish the establishment of the will : for, 
 if it were established, he gained a security for his legacy or debt 
 
 ' It is now provided by statute in England, that the testator shall sub- 
 scribe the will, i. e., sign it at the end. Such is also the rule in a number of 
 the United States. But in the absence of a similar statute, the common 
 law rule prevails ; and the testator's signature in any part of the instrument 
 will be sufficient, if written for the purpose of authenticating it as a will. If 
 the testator cannot write, it will be sufficient, if he makes his marlc. {Jack- 
 son V. Jackson, 39 N. Y. 153.) So it has been held that, if the testator is 
 too wealc from sickness to sign his name, his hand may be guided by another, 
 if not done against his will. {Van Hanswyck v. Wiese, 44 Barb. 494.) 
 
 ' This rule has been changed by statute in some of the American States. 
 Thus it is not necessary in New York that the witnesses should sign in the 
 presence oi the testator. {Lyon v. Smith, 11 Barb. 124.) The formalities 
 necessary to the due execution of a will are matters commonly of statutory 
 regulation, and the statutes of various States differ in important respects, in 
 their provisions upon this subject. The statute of New York may be referred 
 to, as illustrative of changes which have been made in this country in the 
 English law. This provides — (l.) That wills of real or personal property, or 
 both, shall be subscribed by the testator at the end of the will. (2.) Such 
 suhscription shall be made by the testator, in the presence of each of the 
 attesting witnesses, or shall be acknowledged by him, to have been so made, 
 to each c- the attesting witnesses. (3.) The testator, at the time of making 
 such subscription, or at the time of acknowledging the same, shall declare 
 the instrument so subscribed, to be his last will and testament. (This is 
 termed the " publication " of the will. See 95 N. Y. 494 ; 44 N. J. Eq. 154.) 
 (4) There shall be two attesting witnesses ; each of whom shall sign his 
 name as a witness at the end of the will, at the request of the testator. 
 (2 R. S. 63.) 
 
502 OF ALIENA TION BY DE VISE. 
 
 from the real estate, whereas otherwise he had no claim but on the 
 personal assets. This determination, however, alarmed many pur. 
 chasers and creditors, and threatened to shake most of the titles in 
 the kingdom, that depended on devises by will. For, if the will was 
 attested by a servant to whom wages were due, by the apothecary 
 or attorney whose very attendance made them creditors, or by 
 the minister of the parish who had any demand for tithes or 
 ecclesiastical dues (and these are the persons most likely to be 
 present in the testator's last illness), and if in such case the tes- 
 tator had charged his real estate with the payment of his debts, 
 the whole will, and every disposition therein, so far as related to 
 real property, were held to be utterly void. This occasioned the 
 statute 25 Geo. II., ch. 6, which restored both the competency 
 and the credit of such legatees, by declaring void all legacies, 
 g;iven to witnesses, and thereby removing all possibility of their 
 interest affecting their testimony. The same statute likewise 
 established the competency of creditors, by directing the testi- 
 mony of all such creditors to be admitted, but leaving their credit 
 (like that of all other witnesses) to be considered, on a view of 
 *378] all the circumstances, by the court *and jury before whom 
 such will shall be contested. And in a much later case the tes- 
 timony of three witnesses who were creditors, was held to be 
 sufficiently credible, though the land was charged with the pay- 
 ment of debts ; and the reasons given on the former determina- 
 tion was said to be insufficient.^ 
 
 Another inconvenience was found to attend this new method 
 
 8 The statute i Vict., ch. 26, having repealed the Act of Geo. II., reenacts 
 and extends some of its provisions. It avoids bequests, not only to an 
 attesting witness, but to the husband or vjfife of such witness ; and expressly 
 provides that the incompetency of a witness to prove the execution of a will, 
 shall not render it invalid. It furtlier enacts that any (rr^rfiVor, or the wifa 
 or husband of any creditor, whose debt is charged upon the property devised 
 or bequeathed by the will, may be admitted to prove the executioa ihereol 
 as an attesting witness ; and that an executor of a will may be admitted to 
 prove its execution, — a point on which some doubts had previously existed. 
 (Kerr.) 
 
 Similar statutes have been passed in a number of the American States. 
 Thus, in New York, it is provided that if any person takes a beneficial in- 
 terest under a will, and the will cannot be proved without his testimony, the 
 interest will be void, so far as concerns himself or those claiming under him, 
 and he shall be a competent witness and compellable to testify. (See Jarman 
 on Wills, I. 71, Bigelow's ed.) 
 
OF ALIENA TION BY DE VISE. 503 
 
 of conveyance by devise ; in that creditors by bond and other 
 specialties, which affected the heir, provided he had assets by 
 descent, were now defrauded of their securities, not having the 
 same remedy against the devisee of their debtor. To obviate 
 which, the statute 3 & 4 W. & M., ch. 14, hath provided, that all 
 wills and testaments, limitations, dispositions, and appointments 
 of real estates, by tenants in fee-simple or having power to dis- 
 pose by will, shall (as against such creditors only) be deemed to 
 be fraudulent and void, and that such creditors may maintain 
 their actions jointly against both the heir and the devisee.' 
 
 A will of lands, made by the permission and under the con- 
 trol of these statutes, is considered by the courts of law not so 
 much in the nature of a testament, as of a conveyance declaring 
 the uses to which the land shall be subject : with this difference, 
 that in other conveyances the actual subscription of the witnesses 
 is not required by law, though it is prudent for them so to do, 
 in order to assist their memory when living, and to supply their 
 evidence when dead ; but in devises of lands such subscription 
 is now absolutely necessary by statute, in order to identify a 
 conveyance which in its nature can never be set up till after the 
 death of the devisor. And upon this notion, that a devise affect- 
 ing lands is merely a species of conveyance, is founded this 
 distinction between such devises and testaments of personal 
 chattels ; that the latter will operate upon whatever the testator 
 dies possessed of, the former only upon such real estates as were 
 his at the time of executing and publishing his will. Wherefore 
 no *after-purchased lands will pass under such devise, [*379 
 unless, subsequent to the purchase or contract, the devisor re- 
 publishes his will.^° 
 
 We have now considered the several species of common 
 assurances, whereby a title to lands and tenements may be trans- 
 ferred and conveyed from one man to another. But, before we 
 
 ' This statute has been repealed by subsequent acts, which, however, are 
 in furtherance of the same policy, and make the claims of creditors upon the 
 estate of the deceased prior to those of devisees and legatees. In the respec- 
 •Jve States of the Union, similar statutes have been enacted. 
 
 '" But the Wills Act (i Vict.,ch. 26,) has changed the law in this respect; 
 Mid all property to which a man is entitled at the time of his death, passes by 
 His wiR, The will takes effect as if executed immediately betore the testa- 
 tor s death, unless it contains the specific expression of a different intention. 
 Such is also the generally established doctrine in the United States. 
 
504 OF AL lENA TION B Y DE VISE. 
 
 conclude this head, it may not be improper to take notice of a 
 few general rules and maxims, which have been laid down by 
 courts of justice, for the construction and exposition of them all. 
 These are : — 
 
 1. That the construction hs favorable, and as near the minds 
 and apparent intents of the parties, as the rules of law will 
 admit. For the maxims of law are, that " verba intentioni de- 
 bent inservire ;' and "benigne interpretantur chartas propter 
 simplicitatem laicorum." And therefore the construction must 
 also be reasonable, and agreeable to common understanding." 
 
 2. That quo ties i?t verbis nulla est ambiguitas, ibi nulla ex- 
 positio contra verba fienda est : but that, where the intention is 
 clear, too minute a stress be not laid on the strict and precise 
 signification of words ; nam qui hcBret in litera, hceret in cortice. 
 Therefore, by a grant of a remainder a reversion may well pass, 
 and e converso. And another maxim of law is, that " mala gram- 
 tnatica non vitiat chartam ; " neither false English nor bad Latin 
 will destroy a deed. Which perhaps a classical critic may think 
 to be no unnecessary caution." 
 
 3. That the construction be made upon the entire deed, and 
 not merely upon disjointed parts of it. "Nam ex antecedentibus 
 *380] et consequentibus fit optima interpretatio." And *there- 
 fore that every part of it be (if possible) made to take effect : 
 and no word but what may operate in some shape or other. 
 " Nam verba debent intelligi cum effectu, ut res magis valeat 
 quam pereatr'^^ 
 
 4. That the deed be taken most strongly against him that is 
 the agent or contractor, and in favor of the other party. " Ver- 
 ba fortius accipiuntur contra proferentem!' As, if tenant in fee- 
 simple grants to any one an estate for life, generally, it shall be 
 construed an estate for the life of the grantee. For the princi- 
 ple of self-preservation will make men sufficiently careful, not to 
 prejudice their own interest by the too extensive meaning of 
 their words : and hereby all manner of deceit in any grant is 
 avoided ; for men would always affect ambiguous and intricate 
 
 " See Tucker v. Meeks, 2 Sweeney (N.Y.), 736, 52 N.Y. 638; Ash v Colt- 
 man, 24 Barb. 645 ; Ingalh v. Cole, 47 Me. 530 ; Given v. Hilton, 95 U. S. 591- 
 
 " Riggs'^. Palmer, 115 N. Y. 510; Reevesw. Topping, 1 Wend. 388; Hen- 
 show V. Foster, 9 Pick. 317 ; DeNottebeck v. Astor, 13 N. Y. 98. 
 
 '^^ Rogers v. Rogers, 3 Wend. 526; Rich v. Hawxhursi, 114 N. Y. 512; 
 Salstonstall v. Sanders, 1 1 Allen, 446. 
 
OF A LI EN A TIVN BY DE VISE. 505 
 
 expressions, provided they were afterwards at liberty to put their 
 own construction upon them. But here a distinction must be 
 talcen between an indenture and a deed-poll : for the words of 
 an indenture, executed by both parties, are to be considered as 
 the words of them both ; for, though delivered as the words of 
 one party, yet they are not his words only, because the other 
 party hath given his consent to every one of them. But in a 
 deed-poll, executed only by the grantor, they are the words of 
 the grantor only, and shall be taken most strongly against him. 
 And, in general, this rule, being a rule of some strictness and 
 rigor, is the last to be resorted to ; and is never to be relied 
 upon, but where all other rules of exposition fail." 
 
 5. That, if the words will bear two senses, one agreeable to, 
 and another against law ; that sense be preferred, which is most 
 agreeable thereto. As if tenant in tail lets a lease to have and 
 to hold during life generally, it shall be construed to -be a lease 
 for his own life only, for that stands with the law ; and not for 
 the life of the lessee, which is beyond his power to grant." 
 
 *6. That, in a deed, if there be two clauses so totally [*381 
 repugnant to-each other, that they cannot stand together, the first 
 shall be receiAfed, and the latter rejected ; wherein it differs from 
 a will : for there, of two such repugnant clauses the latter shall 
 stand. Which is owing to the different natures of these two in- 
 struments ; for the first deed and the last will are always most 
 available in law. Yet in both cases we should rather at- 
 tempt to reconcile them.'' 
 
 7. That a devise be most favorably expounded, to pursue if 
 possible the will of the devisor, who for want of advice or learn- 
 ing may have omitted the legal or proper phrases." And there- 
 fore many times the law dispenses with the want of words in de- 
 vises, that are absolutely requisite in all other instruments. 
 Thus, a fee may be conveyed without words of inheritance; and 
 
 ^* Douglas V. Lewis, 131 U. S. 75 ; Coleman v. Beach, 97 N. Y. 545 ; Morse 
 V. Marshall, 13 Allen, 288. 
 
 '5 See Hobbs v. McLean, 117 U. S. 567; Post v. Hoover, 33 N. Y. 593! 
 Butler V. Butler, 3 Barb. Ch. 304. 
 
 *«See Tucker v. Meeks, 2 Sweeney, 736, 52 N. Y. 638 ; Van Nostrand v. 
 Moore, 52 N. Y. 12; Woodbury v. Woodbury, 74 Me. 413. But these rules 
 will not be applied, except in cases of clear and unmistakable inconsistency. 
 
 "See Sherwood v. Sherwood, 3 Bradford, 230; Phillips v. Davies, 92 
 N. Y. 199; Lytk V. Beveridge, 58 N. Y. 592 ; Colton v. Colton, 127 U. S. 300. 
 
506 OF ALIEN A TION BY DE VISE. 
 
 an estate-tail without words of procreation. By a will also an 
 estate may pass by mere implication, without any express words 
 to direct its course. As, where a man devises lands to his heir 
 at law, after the death of his wife : here, though no estate is 
 given to the wife in express terms, yet she shall have an estate 
 for life by implication ; for the intent of the testator is clearly 
 to postpone the heir till after her death; and, if she does not take 
 it, nobody else can. So, also, where a devise is of black-acre to 
 A. and of white-acre to B. in tail, and if they both die without 
 issue, then to C. in fee ; here A. and B. have cross-renminders by 
 implication, and on the failure of cither's issue, the other or his 
 issue shall take the whole ; and C.'s remainder over shall be 
 postponed till the issue of both shall fail. But, to avoid confu 
 sion, no such cross-remainders are allowed between more than 
 two devisees ;^' and, in general, where any implications are al- 
 lowed, they must be such as are necessary (or at least highly 
 *382] *probable) and not merely possible implications. And 
 herein there is no distinction between the rules of law and of 
 equity ; for the will, being considered in both courts in the light 
 of a limitation of uses, is construed in each with equal favor and 
 benignity, and expounded rather on its own particular circum- 
 stances, than by any general rules of positive law. 
 
 And thus we have taken a transient view, in this and the 
 three preceding chapters, of a very large and diffusive subject, 
 the doctrine of common assurances : which concludes our obser- 
 vations on the title to things real, or the means by which they 
 may be reciprocally lost and acquired. We have before consid- 
 ered the estates which may be had in them, with regard to their 
 duration or quantity of interest, the time of their enjoyment, and 
 the number and connections of the persons entitled to hold them : 
 we have examined the tenures, both ancient and modern, where- 
 by those estates have been, and are now, holden : and have dis- 
 tinguished the object of all these inquiries,' namely, things real 
 into the corporeal or substantial, and incorporeal or ideal kind; 
 ind have thus considered the rights of real property in ever) 
 light wherein they are contemplated by the laws of England. A 
 system of laws, that differs much from every other system, ex- 
 
 ^ [The contrary has been fully established. In a will there maybe cross- 
 remainders among any number by implication, where it is the manifest inten- 
 tion of the testator.] (See Hall v. Priest, 6 Gray, i8.) 
 
OF ALIEN A TION BY DE VISE. 
 
 507 
 
 cept those of the same feudal origin, in its notions and regula- 
 tions of landed estates ; and which therefore could in this particu- 
 lar be very seldom compared with any other. 
 
 The subject which has thus employed our attention, is of very 
 extensive use, and of as extensive variety. And yet, I am afraid, 
 it has afforded the student less amusement and pleasure in the 
 pursuit, than the matters discussed in the preceding book. To 
 say the truth, the vast alterations which the doctrine of real 
 property has undergone from the Conquest to the present time ; 
 the infinite determinations upon points that continually arise, and 
 which have been heaped one upon another for a course of seven 
 centuries, without any order or *method ; and the multi- [*383 
 plicity of acts of parliament which have amended, or sometimes 
 oiily altered, the common law : these causes have made the study 
 of this branch of our national jurisprudence a little perplexed 
 and intricate. It hath been my endeavor principally to select 
 such parts of it as were of the jnost general use, where the prin- 
 ciples were the most simple, the reasons of them the most 
 obvious, and the practice the least embarrassed. Yet I 
 cannot presume that I have always been thoroughly intel- 
 ligible to such of my readers, as were before strangers even to 
 the very terms of art which I have beeji obliged to make use of ; 
 though, whenever those have first occurred, I ha\e generally at- 
 tempted a short explication of their meaning. These are indeed 
 the more numerous, on account of the different languages, which 
 our law has at different periods been taught to speak ; the dif- 
 ficulty arising from which will insensibly diminish by use and 
 familiar acquaintance. And therefore I shall close this branch 
 of our inquiries with the words of Sir Edward Coke : " Albeit 
 the student shall not at any one day, do what he can, reach to 
 the full meaning of all that is here laid down, yet let him no way 
 discourage himself, but proceed : for on some other day, in some 
 other place " (or perhaps upon a second perusal of the same), 
 " his doubts will be probably removed." 
 
5o8 OF THINGS PERSONAL. 
 
 CHAPTER XXIII. 
 
 [bL. COMM. — BOOK II. CH. XXIV.] 
 
 Of Things Personal. 
 
 Under the name of things personal are included all sorts ol 
 things movable, which may attend a man's person wherever he 
 goes ; and therefore, being only the objects of the law while they 
 remain within the limits of its jurisdiction, and being also of a 
 perishable quality, are not esteemed of so high a nature, nor paid 
 so much regard to by the law, as things that are in their nature 
 more permanent and immovable, as land and houses and the 
 profits issuing thereout. These being constantly within the 
 reach, and under the protection of the law, were the principal 
 favorites of our first legislators : who took all imaginable care in 
 ascertaining the rights, and directing the disposition, of such 
 property as they imagined to be lasting, and which would answer 
 to posterity the trouble and pains that their ancestors employed 
 about them ; but at the same time entertained a very low and 
 contemptuous opinion of all personal estate, which they regarded 
 as only a transient commodity. The amount of it indeed was 
 comparatively very trifling, during the scarcity of money and the 
 ignorance of luxurious refinements which prevailed in the feudal 
 ages. Hence it was, that a tax of the fifteenth, tenth, or some- 
 times a much larger proportion, of all the movables of the sub- 
 ject, was frequently laid without scruple, and is mentioned with 
 much unconcern by our ancient historians, though now it would 
 justly alarm our opulent merchants and stockholders. And hence 
 *385] *likewise may be derived the frequent forfeitures in- 
 flicted by the common law, of all a man's goods and chattels, for 
 misbehaviors and inadvertencies that at present hardly seem to 
 deserve so severe a punishment. Our ancient law-books, which 
 are founded upon the feudal provisions, do not therefore often 
 condescend to regulate this species of property. There is not a 
 chapter in Britton or the Mirror, that can fairly be referred to 
 this head ; and the little that is to be found in Glanvil, Bracton, 
 
OF THINGS PERSONAL. 509 
 
 and Fleta, seems principally borrowed from the civil lans. But 
 of later years, since the introduction and extension of trade and 
 commerce, which are entirely occupied in this species of prop- 
 erty, and have greatly augmented its quantity and of course its 
 value, we have learned to conceive different ideas of it. Our 
 courts now regard a man's personalty in a light nearly, if not 
 quite, equal to his realty : and have adopted a more enlarged and 
 less technical mode of considering the one than the other ; fre- 
 quently drawn from the rules which they found already estab- 
 lished by the Roman law, wherever those rules appeared to be 
 well grounded and apposite to the case in question, but princi- 
 pally from reason and convenience, adapted to the circumstances 
 of the times ; preserving withal a due regard to ancient usages, 
 and a certain feudal tincture, which is still to be found in some 
 branches of personal property. 
 
 But things personal, by our law, do not only include things 
 movable but also something more : the whole of which is com"- 
 prehended under the general name of chattels, which, Sir Edward 
 Coke says, is a French word signifying goods. The appellation 
 is in truth derived from the technical Latin vi or A, catal la: which 
 primarily signified only beasts of husbandry, or (as we still call 
 them) cattle, but in its secondary sense was applied to all mov- 
 ables in general. In the grand coustiitnier of Normandy a 
 chattel is described as a mere movable, but at the same time it is 
 set in opposition to a fief or feud : so that not only goods, but 
 whatever was not a feud, were accounted chattels. *And [*386 
 it is in this latter, more extended, negative sense, that our law 
 adopts it ; the idea of goods, or movables only, being not suffi- 
 ciently comprehensive to take in every thing that the law con- 
 siders as a chattel interest. For since, as the commentator on 
 the coustumier observes, there are two requisites to make a fief 
 or heritage, duration as to time, and immobility with regard to 
 place ; whatever wants either of these qualities is not, according 
 to the Normans, a heritage or fief ; or, according to us, is not a 
 real estate : the consequence of which in both laws is, that it must 
 be a personal estate, or chattel. 
 
 Chattels therefore are distributed by the law into two kinds ; 
 chattels real, and chattels personal. 
 
 I. Chattels real, saith Sir Edward Coke, are such as concern, 
 or savor of, the realty ; as terms for years of land, wardships in 
 
5IO OF THINGS PERSONAL. 
 
 chivalry (while the military tenures subsisted), the next presen- 
 tation to a church, estates by a statute-merchant, statute-staple, 
 elegit, or the like ; of all which we have already spoken. And 
 these are called real chattels, as being interests issuing out of, oi 
 annexed to, real estates : of which they have one quality, viz, 
 immobility, which denominates them real; but want the other, 
 vis. a sufficient, legal, indeterminate duration ; and this want it is, 
 that constitutes them chattels. The utmost period for which 
 they can last is fixed and determinate, either for such a space of 
 time certain, or till such a particular sum of money be raised out 
 of such a particular income ; so that they are not equal in the 
 eye of the law to the lowest estate of freehold, a lease for another's 
 life : their tenants were considered upon feudal principles, as 
 merely bailiffs or farmers ; and the tenant of the freehold might 
 at any time have destroyed their interest, till the reign of Henry 
 VIII. A freehold, which alone is a real estate, and seems (as 
 has been said) to answer to the fief in Normandy, is conveyed 
 *387] by corporal investiture and *livery of seizin ; which gives 
 the tenant so strong a hold of the land, that it never after can be 
 wrested from him during his life, but by his own act, of voluntary 
 transfer or of forfeiture ; or else by the happening of some future 
 contingency, as in estates fur auter vie, and the determinable 
 freeholds mentioned in a former chapter. And even these, being 
 of an uncertain duration, may by possibility last for the owner's 
 life ; for the law will not presuppose the contingency to happen 
 before it actually does, and till then the estate is to all intents 
 and purposes a life-estate, and therefore a freehold interest. On 
 the other hand, a chattel interest in lands, which the Normans 
 put in opposition to fief, and we to freehold, is conveyed by no 
 seizin or corporal investiture, but the possession is gained by 
 the mere entry of the tenant himself ; and it will certainly expire 
 at a time prefixed and determined, if not sooner. Thus a lease 
 for years must necessarily fail at the end and completion of the 
 term ; the next presentation to a church is satisfied and gone 
 the instant it comes into possession, that is, by the first avoidance 
 and presentation to the living ; the conditional estates by stat- 
 utes and elegit are determined as soon as the debt is paid ; and 
 so guardianships in chivalry expired of course the moment that 
 the heir came of age. And if there be any other chattel real, it 
 will be found to correspond with the rest in this essential quality 
 
OF PROPER TV IN THINGS PERSONAL. 5 1 1 
 
 tho'' il8 duration is limited to a time certain, beyond which it 
 can'ict sabsist. 
 
 3. Chattels personal are, properly and strictly speaking, things 
 movahh; which may be annexed to or attendant on the person 
 of the owner, and carried about with him from one part of the 
 world to another. Such are animals, household stuff, money, 
 jewels, corn, garments, and every thing else that can properly be 
 put in motion, and transferred from place to place. And of this 
 kind of chattels it is, that we are principally to speak in the 
 remainder of this book ; having been unavoidably led to consider 
 the nature of chattels real, and their incidents, in the former 
 chapters, which were *employed upon real estates : that [*388 
 kitid of property being of a mongrel amphibious nature, original- 
 ly endowed with one only of the characteristics of each species 
 of things; the immobility of things real, and the precarious 
 duration of things personal. 
 
 Chattel interests being thus distinguished and distributed, it 
 will be proper to consider, first, the nature of that property, 
 or dominion, to which they are liable ; which must be principally, 
 nay solely, referred to personal chattels : and, secondly, the titk 
 to that property, or how it may be lost and acquired. Of each 
 of these in its order 
 
 CHAPTER XXIV. 
 
 [bL. COMM. — BOOK II. CH. XXV.] 
 
 Of Property in Things Personal. 
 
 Property in chattels personal may be either in possession : 
 which is where a man hath not only the right to enj'^y, but hath 
 the actual enjoyment of, the thing : or else it is in action ; where 
 a man hath only a bare right, without any occupation or 
 enjoyment. And of these the former, or property in possession, 
 IS divided into two sorts, an absolute and a qualified property. 
 
 I. First, then, of property m possession absolute, which is where 
 a man hath, solely and exclusively, the right, and also the occupa- 
 
512 OF PROPERTY IN THINGS PERSONAL. 
 
 tion, of any movable chattels ; so that they cannot be trans- 
 f erred from him, or cease to be his, without his own act or default 
 Such may be all inanimate things, as goods, plate, money, jewels, 
 implements of war, garments, and the like : such also may be all 
 vegetable productions, as the fruit or other parts of a plant, 
 when severed from the body of it ; or the whole plant itself, when 
 severed from the ground ; none of which can be moved out 
 of the owner's possession without his own act or consent, 
 or at least without doing him an injury, which it is the business 
 of the law to prevent or remedy. Of these therefore there 
 remains little to be said. 
 
 But with regard to animals which have in themselves a princi- 
 ple and power of motion, and (unless particularly confined) can 
 convey themselves from one part of the world to another, there 
 *390] is a great difference made with respect to *their several 
 classes, not only in our law, but in the law of nature and of all 
 civilized nations. They are distinguished into such as are 
 domitcz, and such as a.refer<e naturce: some being of a tame and 
 others of a wild disposition. In such as are of a nature tame and 
 domestic (as horses, kine, sheep, poultry, and the like), a 
 man may have as absolute a property as in any inanimate beings ; 
 because these continue perpetually in his occupation, and will not 
 stray from his house or person, unless by accident or fraudulent 
 enticement, in either of which cases the owner does not lose his 
 property : in which our law agrees with the laws of France and 
 Holland. The stealing, or forcible abduction, of such property 
 as this, is also felony ; for these are things of intrinsic value, serv- 
 ing for the food of man ; or else for the uses of husbandry. But 
 in animals ferm naturm a man can have no absolute property. 
 
 Of all tame and domestic animals, the brood belongs to 
 the owner of the dam or mother ; ' the English law agreeing with 
 the civil, that ''partus sequitur ventrem." in the brute creation, 
 though for the most part in the human species it disallows that 
 maxim. And therefore in the laws of England as well as Rome, 
 " si equam meam equus ttms pragnantem fecerit, non est tuum 
 sed meum quod natum est." And, for this Puffendorf gives 
 a sensible reason : not only -because the male is frequently 
 
 ' But if animals are hired, the hirer is entitled to the increase during the 
 time of the letting. {Concklin v. Havens, 12 Johns. 314; Putnam v. W^lef, 
 
 8 id. 432 ; see 130 U. S. 69.) 
 
OF PROPERTY IN THINGS PERSONAL. 513 
 
 unknown ; but also because the dam, during the time of her preg- 
 nancy, is almost useless to the proprietor, and must be main- 
 tained with great expense and care : wherefore as her owner is the 
 loser by her pregnancy, he ought to be the gainer by her brood. 
 An exception to this rule is in the case of young cygnets ; which 
 belong equally to the owner of the cock and hen, and shall 
 be divided between them. But here the reasons of the general 
 rule cease, and " cessante *ratione cessat et ipsa lex : " for [*391 
 the male is well known, by his constant association with the 
 female ; and for the same reason the owner of the one doth not 
 suffer more disadvantage, during the time of pregnancy and 
 nurture, than the owner of the other. 
 
 II. Other animals, that are not of a tame and domestic naturei 
 are either not the objects of property at all, or else fall under our 
 other division, namely, that of qualified, limited, or special prop- 
 erty ; which is such as is not in its nature permanent, but may 
 sometimes subsist, and at other times not subsist. In discussing 
 which subject, I shall in the first place show, how this species of 
 property may subsist in such animals as are ferce natura, or of 
 a wild nature ; and then how it may subsist in any other things, 
 when under particular circumstances. 
 
 First then, a man may be invested with a qualified, but not an 
 absolute, property in all creatures that are fierce naturce, either 
 per industriam, propter impotentiam, or propter privilegium. 
 
 I. A qualified property may subsist in animals fierce natura 
 per industriam hominis: by a man's reclaiming and making them 
 tame by art, industry, and education ; or by so confii^ng them 
 within his own immediate power, that they cannot escape and 
 use their natural liberty. And under this head some writers 
 liave ranked all the former species of animals we have mentioned, 
 apprehending none to be originally and naturally tame, but only 
 made so by art and custom : as horses, swine, and other cattle, 
 which if originally left to themselves, would have chosen to. rove 
 up and down, seeking their food at large, and are only made 
 (iomestic by use and familiarity : and are therefore, say they, 
 called mansueta, quasi rtanui assueta. But however well, this 
 motion may be founded, abstractly considered, our law appre- 
 hends the most obvious distinction to be, between such animals 
 as we generally see tame, and are therefore seldom^if ever,founc' 
 wandering at large, which it calls domitce naturce : and such 
 2,1 
 
514 OF PROPERTY IN THINGS PERSONAL. 
 
 creatures as are usually found at liberty, which are therefore 
 *392] supposed to be more emphatically /^yt^ «a/«/'<^,* though, 
 it may happen that the latter shall be sometimes tamed and con- 
 fined by the art and industry of man. Such as are deer in a 
 park, hares or rabbits in an enclosed warren, doves in a dove- 
 house, pheasants or partridges in a mew, hawks that are fed and 
 commanded by their owner, and fish in a private pond or in 
 trunks. These are no longer the property of a man than while 
 they continue in his keeping or actual possession : but if at any 
 time they regain their natural liberty, his property instantly 
 ceases ; unless they have animunt revertendi, which is only to be 
 known by their usual custom of returning. A maxim which is 
 borrowed from the civil law ; " revertendi animmn videntur desi- 
 nere habere tunc, cum revertendi consuetudinem deseruerint." The 
 law therefore extends this possession farther than the mere 
 manual occupation ; for my tame hawk that is pursuing his 
 quarry in my presence, though he is at liberty to go where he 
 pleases, is nevertheless my property : for he hath animum rever- 
 tendi. So are my pigeons, that are flying at a distance from 
 their home (especially of the carrier kind), and likewise the deer 
 that is chased out of my park or forest, and is instantly pursued 
 by the keeper or forester ; all which remain still in my posses- 
 sion, and I still preserve my qualified property in them.^ But 
 if they stray without my knowledge, and do not return in the usual 
 manner, it is then lawful for any stranger to take them. But 
 if a deer, or any wild animal reclaimed, hath a collar or other 
 mark put^upon him, and goes and returns at his pleasure ; or if a 
 wild swan is taken, and marked and turned loose in the river, 
 the owner's property in him still continues, and it is not lawful 
 for any one else to take him ; but otherwise, if the deer has been 
 long absent without returning, or the swan leaves the neighbor- 
 hood. Bees also are ferce natura ; but, when hived and re- 
 claimed, a man may have a qualified property in them, by the 
 *393] law of nature, as well as by the civil law. *And to the 
 same purpose, not to say in the same words, with the civil law, 
 speaks Bracton : occupation, that is, hiving or including them, 
 gives the property in bees ; for though a swarm lights upon my 
 tree, I have no more property in them till I have hived then, 
 than I have in the birds which make their nests thereon, and 
 ' See Amory v. Flyn, lo Johns. 103. 
 
OF PROPERTY IN THINGS PERSONAL. 515 
 
 therefore if another hives them, he shall be their proprietor : but 
 a swarm, which fly from and out of my hive, are mine so long 
 as I can keep them in sight, and have power to pursue them ; 
 and in these circumstances no one else is entitled to take them." 
 But it hath been also said that with us the only ownership in 
 bees is ratione soli : and the charter of the forest which allows 
 every freeman to be entitled to the honey found within his own 
 woods, affords great countenance to this doctrine, that a quali- 
 fied property may be had in bees, in consideration of the prop- 
 erty of the soil whereon they are found. 
 
 In all these creatures, reclaimed from the wildness of their 
 nature, the property is not absolute, but defeasible ; a property, 
 that may be destroyed if they resume their ancient wildness and 
 are found at large. For if the pheasants escape from the mew, 
 or the fishes from the trunk, and are seen wandering at large in 
 their proper element, they become feres natures again ; and are 
 free and open to the first occupant that hath ability to seize 
 them. But while they thus continue my qualified or defeasible 
 property, they are as much under the protection of the law, as if 
 they were absolutely and indefeasibly mine ; and an action will 
 lie against any man that detains them from me, or unlawfully 
 destroys them. It is also as much felony by common law to 
 steal such of them as are fit for food, as it is to steal 
 tame animals, but not so, if they are only kept for pleasure, 
 curiosity, or whim, as dogs, bears, cats, apes, parrots, and sing- 
 ing-birds; because their value is not intrinsic, but depending only 
 on the caprice of the owner :f though it is such an invasion of 
 property as may *amount to a civil injury, and be re- [*394 
 dressed by a civil action. Yet to steal a reclaimed hawk is felony 
 both by common law and statute ; which seems to be a relic of 
 the tyranny of our ancient sportsmen. And, among our elder 
 ancestors, the ancient Britons, another species of reclaimed ani- 
 mals, viz., cats, were looked upon as creatures of intrinsic value ; 
 and the killing or stealing one was a grievous crime, and sub- 
 jected the offender to a fine ; especially if it belonged to the 
 king's household, and was the custos horrei regii, for which there 
 was a very peculiar forfeiture. And thus much of qualified 
 property in wild animals, reclaimed /^r industriatn. 
 
 « Gillet V. Mason, 7 Johns. 16 ; Ferguson v. Miller, I Cow. 243 ; Goff v 
 A!"!*;, 15 Wend. 550; Rexroth v. Coon, 15 R. I. 35. 
 
 I See post, pa;^c 970. 
 
Si6 OF PROPERTY IN THINGS PERSONAL. 
 
 2. A qualified property may also subsist with relation to 
 animals ferdi naiurce, ratione impotentice, on account of their own 
 inability. As when hawks, herons, or other birds build in my 
 trees, or coneys or other creatures make their nes.ts or burrows 
 in my land, and have young ones there ; I have a qualified prop- 
 erty in those young ones till such time as they can fly or run 
 away, and then my property expires : but, till then, it is in some 
 cases trespass, and in others felony, for a stranger to take them 
 away. For here, as the owner of the land has it in his power to 
 do what he pleases with them, the law therefore vests a property 
 in him of the young ones, in the same manner as it does of the 
 old ones if reclaimed and confined ; for these cannot through 
 weakness, any more than the others through restraint, use their 
 natural liberty and forsake him. 
 
 3. A man may, lastly, have a qualified property in animals 
 ferce natura, propter privilegiutn : that is he may have the privi- 
 *395] lege of hunting, taking, and killing them, in *exclusion 
 of other persons. Here he has a transient property in these 
 animals, usually called game, so long as they continue within his 
 liberty ; and may restrain any stranger from taking them therein : 
 but the instant they depart into another liberty, this qualified 
 property ceases. The manner, in which this privilege is acquired, 
 will be shown in a subsequent chapter. 
 
 The qualified property which we have hitherto considered 
 extends only to animals /era natures, when either reclaimed, 
 impotent, or privileged. Many other things may also be the 
 objects of qualified property. It may subsist in the very ele- 
 ments, of fire or light, of air, and of water. A man can have no 
 absolute permanent property in these, as he may in the earth 
 and land; since these are of a vague and fugitive nature and 
 therefore can admit only of a precarious and qualified ownership, 
 which lasts so long as they are in actual use and occupation, but 
 no longer. If a man disturbs another, and deprives him of the 
 lawful enjoyment of these ; if one obstructs another's ancient 
 windows,* corrupts the air of his house or gardens, fouls his water, 
 or unpens and lets it out, or if he diverts an ancient watercourse 
 
 * The EnglisTi doctrine, that a prescriptive right may be gained to the 
 enjoyment of light and air across another's premises, has been generally 
 discarded in this country. (See Parker v. Foote, 19 Wend. 309; Mytrsr 
 Gemmel, 10 Barb. 537 ; Keats v. Hugo, 115 Mass. 204 ; see ante, p. 232, note.) 
 
QF PROPERTY IN THINGS PERSONAL. 517 
 
 that used to run to the other's mill or meadow ; the law will 
 animadvert hereon as an injury, and protect the party injured in 
 his possession. But the property in them ceases the instant they 
 are out of possession ; for, when no man is engaged in their 
 actual occupation, they become again common, and every raan 
 lias an equal right to appropriate them to his own use. 
 
 These kinds of qualification in property depend upon the 
 peculiar circumstances of the subject-matter, which is not capa- 
 ble of being under the absolute dominion of any proprietor. But 
 property may also be of a qualified or special nature, on account 
 of the peculiar circumstances of the owner, when the thing itseM 
 is very capable of absolute ownership. *As in case of [*396 
 bailment, or delivery of goods to another person for a particular 
 use ; as to a carrier to convey to London, to an innkeeper to 
 secure in his inn, or the like. Here there is no absolute prop- 
 erty in either the bailor or the bailee, the person delivering, or 
 him to whom it is delivered : for the bailor hath only the right, 
 and not the immediate possession ; the bailee hath the possession, 
 and only a temporary right. But it is a qualified property in 
 them both ; and each of them is entitled to an action, in case the 
 goods be damaged or taken away : the bailee, on account of his 
 immediate possession ; the bailor, because the possession of the 
 bailee is, immediately, his possession also.° So also in case of 
 
 " The bailor is usually said, in such cases, to have a general right of prop- 
 erty in the goods, whilst the bailee has a special or qualified ownership. 
 For any injury to, or interference with, the possessory interest in the prop- 
 erty, as by wrongfully taking or appropriating it, destroying it, etc., either 
 bailor or bailee may bring suit against the wrong-doer, when the bailment is 
 of such a kind that the bailor has a right to resume possession at any time ; 
 45, «._f., in cases of lending, entrusting goods to a carrier, or to a ware- 
 liouseman, or depositary, etc. But an action by one of these parties will bar 
 any right of action by the other. (See Armory v. Delamirie, i Smith's Lead- 
 ing Cases; also 136 Mass. 57; 95 Ind. 302; 19 111. App. 425.) The forms 
 of action which are applicable for injuries to the possessory interest in chat- 
 tels, and to which these rules apply, are trespass, trover, and replevin. But 
 if the bailment be of such a kind that the bailee has a right to retain the 
 goods for a certain period, even as against the bailor, as in the case of 
 hiring for a definite time, the bailee only can bring one of these possessory 
 actions, since he alone has the immediate right of possession. The bailor, 
 however, in such a case, can bring an action for a permanent injury to the 
 property damaging his reversionary interest ; and as this action is based 
 ipon an injury to a different interest in the goods, it wiH not bar the suit ol 
 
5i8 OF PROPERTY IN THINGS PERSONAL. 
 
 goods pledged or pawned upon condition, either to repay money 
 or otherwise ; both the pledgor and pledgee have a qualified, but 
 neither of them an absolute, property in them : the pledgor's 
 property is conditional, and depends upon the performance of 
 the condition of repayment, &c. ; and so too is that of the 
 pledgee, which depends upon its non-performance. The same may 
 be said of goods distrained for rent, or other cause of distress : 
 which are in the nature of a pledge, and are not, at the first 
 taking, the absolute property of either the distreinor, or party 
 distreined upon ; but may be redeemed, or else forfeited, by the 
 subsequent conduct of the latter. But a servant, who hath the 
 care of his master's goods or chattels, as a butler of plate, a 
 shepherd of sheep, and the like, hath not any property or posses- 
 sion either absolute or qualified, but only a mere charge or 
 oversight. 
 
 Having thus considered the several divisions of property in 
 possession, which subsists there only, where a man hath both the 
 right and also the occupation of the thing ; we will proceed next 
 to take a short view of the nature of property in action, or such 
 where a man hath not the occupation, but merely a bare right 
 to occupy the thing in question ; the possession whereof may 
 however be recovered by a suit or action at law ; from whence 
 *397] the thing so recoverable is called *a thing, or, chose in 
 action. Thus money due on a bond is a chose in action ; for a 
 property in the debt vests at the time of forfeiture mentioned in 
 the obligation, but there is no possession till recovered by course 
 of law. If a man promises, or covenants with me, to do any act, 
 and fails in it, whereby I suffer damage, the recompense for this 
 damage is a chose in action ; for though a right to some recom- 
 pense vests in me at the time of damage done, yet what and how 
 large such recompense shall be, can only be ascertained by ver- 
 dict ; and the possession can only be given me by legal judgment 
 
 the bailee, but will be a cumulative remedy. Thus, where a person let furni- 
 ture for a certain time to his tenant, it was held that the landlord could not 
 maintain trover against another who wrongfully converted it to his own use. 
 (See Gordon v. Harper, 7 Term Reports, 9 ; Ward v. Macaulay, 4 id. 489.) 
 Moreover, if a bailee does any act wholly inconsistent with his duty in relation 
 to the goods, as by destroying or selling them, etc., the bailor's right of im- 
 mediate possession revives, and he may maintain trespass or trover against 
 the bailee himself. (See Dicey on Parties to Actions, pp. 345-380.) And a 
 bailee may recover the value of his special property from the bailor, if the 
 latter wrongfully deprives him of the goods. (133 Mass. 423 ; 91 N. Y. 346.) 
 
OF PR OPER TY IN THINGS PERSONAL. 5 1 g 
 
 and execution. In the former of these cases the student will 
 observe, that the property, or right of action, depends upon an 
 express contract or obligation to pay a stated sum : and in the 
 latter it depends upon an implied contract, that if the covenantor 
 does not perform the act he engaged to do, he shall pay me the 
 damages I sustain by this breach of covenant. And hence it 
 may be collected, that all property in action depends entirely 
 upon contracts, either express or implied ; which are the only 
 regular means of acquiring a chose in action, and of the nature oi 
 which we shall discourse at large in a subsequent chapter.' 
 
 At present we have^only to remark, that upon all contracts 
 or promises, either express or implied, and the infinite variety of 
 cases into which they are and may be spun out, the law gives an 
 action of some sort or other to the party injured in case of non- 
 performance ; to compel the wrongdoer to do justice to the party 
 with whom he has contracted, and, on failure of performing the 
 identical thing he engaged to do, to render a satisfaction equiv- 
 alent to the damage sustained. But while the thing, or its equiv- 
 
 ' There are, however, many rights of action arising out of tortious inju- 
 ries ; as, for instance, for trespass to person or property, for slander oir 
 libel, for damages caused by fraud or negligence, etc. These cannot be 
 said to depend upon contract, unless the word " contract " be used in an 
 enlarged, general sense, to denote the obligation impliedly assumed by every 
 member of society, that he will do no injury to his fellow-citizens. But this 
 is not the ordinary legal meaning of the word, so that it may be said that 
 choses in action arise both out of contract and of tort. 
 
 It was the rule of the common law that choses in action were not 
 assignable. Their assignment was deemed of pernicious tendency, as pro- 
 moting strife and litigation, and was therefore forbidden. But this rigid 
 rule was relaxed in courts of equity, which sanctioned such assignments, 
 and regarded the assignor as a trustee for the assignee. And, subsequently, 
 courts of law so far departed from the former legal doctrine as to permit the 
 assignee to sue upon the instrument, in the name of the assignor. It has 
 been the tendency of legislation, in modern times, to authorize the making of 
 such assignments, and to allow the assignee to bring action in his own 
 name even in courts of law. Such is the general law in New York, and many 
 other American States, as to causes of action arising out of contract. If the 
 cause of action arise out of tort, it is generally held to be assignable, when 
 it concerns property, but not when the tort is personal. Thus, a right of 
 action for the wrongful appropriation or conversion of personal chattels 
 wnuld be assignable, but not a right to sue for assault and battery. (See 
 Dana v. Fiedler, 12 N. Y. 40; Zabriskie v. Smith, 13 N. Y. 322 ; Hegerich 
 V. Keddie, 99 N. Y. 258 ; also 25 Fed. Rep. 786 ; 86 Mo. 613 ; 45 Mich. 153 ; 
 I Pet. 193; N. Y. Code Civ. Pro. § 1910.) 
 
520 OF PROPERTY IN THINGS PERSONAL. 
 
 alent, remains in suspense, and the injured party has only the 
 right and not the occupation, it is called a chose in action ; being 
 & thmg raXhQV in fote7ttia tYidin in. esse : though the owner may 
 *398] have as *absolute a property in, and be as well entitled to, 
 such things in action, as to things in possession. 
 
 And, having thus distinguished the different degree or quan- 
 tity of dominion or property to which things personal are subject, 
 we may add a word or two concerning the time of their enjoy- 
 tnent, and the number oi their owners : in conformity to the method 
 before observed in treating of the property of things real. 
 
 First, as to the time of enjoyment. By the rules of the ancient 
 common law, there could be no future property, to take place in 
 expectancy, created in personal goods and chattels ; because, 
 being things transitory, and by many accidents subject to be lost, 
 destroyed, or otherwise impaired, and the exigencies of trade 
 requiring also a frequent circulation thereof, it would occasion 
 perpetual suits and quarrels, and put a stop to the freedom of 
 commerce, if such limitations in remainder were generally toler- 
 ated and allowed. But yet in last wills and testaments such 
 limitations of personal goods and chattels, in remainder after a 
 bequest for life, were permitted : though originally that indul- 
 gence was only shown, when merely the use of the goods, and 
 not the goods themselves, was given to the first legatee ; the 
 property being supposed to continue all the time in the executor 
 of the devisor. But now that distinction is disregarded : and 
 therefore if a man either by deed or will limits his books or fur- 
 niture to A. for life, with remainder over to B., this remainder is 
 good.' But, where an estate-tail in things personal is given to 
 the first or any subsequent possessor, it vests in him the total 
 property, and no remainder over shall be permitted on such a 
 limitation. For this, if allowed, would tend to a perpetuity, as 
 the devisee or grantee in tail of a chattel has no method of 
 
 ' It is a general rule, that personal property may be given or bequeathed 
 to one person for life, with a remainder over to another person. {Underhill 
 V. TVipp, 24 How. Pr. 51 ; see 120 111. 261.) Tiie person having the temporary 
 interest has only a rigiit to the eeasonable use of the property, and must do 
 no wilful or unnecessary injury to it while it continues in his possession. But 
 if the chattels are such that their proper use consists in their consumption, as, 
 e. g., provisions, fruit, etc., the first taker has the absolute ownership therein, 
 and the remainder is invalid, (fiillespie v. Miller, S Johns. Ch. 21 ; Westcott 
 V. Cady, id. 334; see 64 N. Y. 278 ; So Me. 297 ; 33 W. Va. 72.) 
 
OF PROPERTY IN THINGS PERSONAL. 521 
 
 barring the entail ; and therefore the law vests in him at once 
 the entire dominion of goods, being analogous to the fee-simple 
 which a tenant in tail may acquire in a real estate. 
 
 * Next, as to the number of owners. Things personal may [*399 
 belong to their owners, not only in severalty, but also in joint- 
 tenancy, and in common, as well as real estates. They cannot 
 indeed be vested in coparcenary ; because they do not descend 
 from the ancestor to the heir, which is necessary to constitute 
 coparceners. But if a horse, or other personal chattel, be given 
 to two or more, absolutely, they are joint-tenants hereof ; and, 
 unless the jointure be severed, the same doctrine of survivorship 
 shall take place as in estates of lands and tenements. And, in 
 like manner, if the jointure be severed, as, by either of them 
 selling his share, the vendee and the remaining part-owner shall 
 be tenants in common, without any pis accrescendi or survivor- 
 ship. So, also, if 100/. be given by will to two or more, equally 
 to be divided between them, this makes them tenants in common ; 
 as, we have formerly seen, the same words would have done in 
 regard to real estates. But, for the encouragement of husbandry 
 and trade, it is held that a stock on a farm, though occupied 
 jointly, and also a stock used in a joint undertaking, by way of 
 partnership in trade, shall always be considered as common and 
 not as joint property, and there shall be no survivorship therein.' 
 
 ' Joint ownership is not so much favored in the law as formerly, and the 
 tendency of legislation, in modern times, is to do away with the incident of 
 survivorship appurtenant to such ownership, or to turn it into ownership in 
 common, unless there be a positive expression of intention in the transfer 
 of the property, that the interest shall be joint. A mere limitation of tht; 
 property to two or more persons would, therefore, be held to create an owner- 
 ship in common, instead of, as formerly, a joint ownership. But in the 
 case of legacies limited to several persons, or where persons are appointed do- 
 cxecutors or co-trustees, the former rule still prevails, and the interest is 
 generally deemed to be joint. The change in the law has been effected, be- 
 cause the doctrine of survivorship is an inconvenient clog to the transmission 
 and disposal ofproperty; but, in the case of executors or trustees, this doctrine 
 is deemed salutary and advantageous, since it is desirable that those who sur- 
 vive should continue in the discharge of the duty or trust devolving upon them, 
 rather than that others should interfere in the management of the property. 
 
 All kinds of personal property may be held in joint ownership or ovfner- 
 ship in common; as, e.g., corporate stocks, a promissory note, a legacy, a 
 patent right, a lease for years, or other choses in action, as well as tangible 
 property in possession, as a horse, furniture, etc. 
 
 A joint owner or owner in common may freely dispose of his interesl^ and 
 
522 OF TITLE TO THJiVGS PERSONAL 
 
 CHAPTER XXV. 
 
 [bL. COMM. — BOOK II. CH. XXVI.] 
 Of Title to Things Personal by Occupancy. 
 
 We are next to consider the title to things personal, or the 
 various means of acquiring, and of losing, such property as may 
 be had therein : both which considerations of gain and loss shall 
 be blended together in one and the same view, as was done in 
 our observations upon real property ; since it is for the most 
 part impossible to contemplate the one, without contemplating 
 the other also. And these methods of acquisition or loss are 
 principally twelve: — i. By occupancy. 2. By prerogative. 3. 
 Bv forfeiture. 4. By custom. 5. By succession. 6. By mar- 
 riage. 7. By j udgment. 8. By gift or grant. 9. By contract. 
 10. By bankruptcy, ii. By testament. 12. By administration. 
 
 And, first, a property in goods and chattels may be acquired 
 by occupancy : which, we have more than once remarked, was the 
 original and only primitive method of acquiring any property at 
 all ; but which has since been restrained and abridged, by the 
 positive laws of society, in order to maintain peace and harmony 
 among mankind. For this purpose, by the laws of England, 
 
 the person to whom it is transferred becomes owner in common with the 
 other owners. Either one of such owners is entitled to the possession of 
 the property, and the possession of one is deemed to be the possession of 
 all. When injuries are committed, involving an interference with the right 
 of possession, as, e.g., trespass to the chattels or conversion of them, it is a 
 general rule that all the owners must unite in an action against the wrong-doer. 
 One co-owner may sue another for a destruction or spoliation of the chattel, 
 and, in some States, for a sale of more than his own share. There is no form ol 
 proceeding at common-law to obtain a partition of the property held in com- 
 mon, but courts of equity will sometimes decree a division to be made. If the 
 property is of the same quality, and severable in its nature, any owner may 
 sever his own share, if it be ascertainable by weight or measurement. But 
 when the property is not severable, as a horse, partition can only be efEected 
 at law, by obtaining the consent of the owners to a sale and a division of the 
 proceeds. (See Davis v. Lottich, 46 N. Y. 393 ; Benedict v. Howard, 3 1 Barb. 
 569; Tripp v. Riley, 15 Barb. 333; Tinneyv. Stebbins, 28 Barb. 290; also 
 146 Mass. 329; 14 R. I. 632; 126 Mass. 480; ^^ N. Y. 158; 115 U. S. 482.) 
 
BY OCCUPANCY 523 
 
 gifts, and contracts, testaments, legacies, and administrations, 
 have been introduced and countenanced, in order to transfer 
 and continue that property and possession in things personal, 
 which has once been acquired by the owner. And, where such 
 •things are found without any other owner, they for the most [*401 
 part belong to the king by virtue of his prerogative ; except in 
 some few instances, wherein the original and natural right of 
 occupancy is still permitted to subsist, and which we are now 
 to consider. 
 
 I. Thus, in the first place, it hath been said, that any body 
 may seize to his own use such goods as belong to an alien enemy. 
 For such enemies, not being looked upon as members of our 
 society, are not entitled during their state of enmity to the benefit 
 or protection of the laws ; and therefore ever)' man that has op- 
 portunity is permitted to seize upon their chattels, without being 
 compelled, as in other cases, to make restitution or satisfaction 
 to the owner. But this, however generally laid down by some of 
 our writers, must in reason and justice be restrained to such cap- 
 tors as are authorized by the public authority of the state, resid- 
 ing in the crown ; and to such goods as are brought into this 
 country by an alien enemy, after a declaration of war, without a 
 safe-conduct or passport. And therefore it hath been holden, 
 that where a foreigner is resident in England and afterwards a 
 war breaks out between his country and ours, his goods are not 
 liable to be seized. It hath also been adjudged, that if any enemy 
 take the goods of an Englishman, which are afterwards retaken 
 by another subject of this kingdom, the former owner shall lose 
 his property therein, and it shall be indefeasibly vested in the 
 second taker ; unless they were retaken the same day, and the 
 owner before sunset puts in his claim of property. Which is 
 agreeable to the law of nations, as understood in the time of 
 Grotius, even with regard to captures made at sea ; which were 
 held to be the property of the captors after a possession of twenty- 
 four hours ; though the modern authorities require that before 
 the property can *be changed, the goods must have been [*402 
 brought into port,_and have continued a night intra prmsidia in a 
 place of safe custody, so that all hope of recovering them was 
 lost.i 
 
 *But now it is necessary, both by the law of England and of the United 
 States, that, in order to vest the property of a capture in the captors, a legal 
 sentence of condemnation should be passed by a prize court. 
 
524 OF TITLE TO THINGS PERSONAL 
 
 And, as in the goods of an enemy, so also in his person, a man 
 may acquire a sort of qualified property, by taking him a prisoner 
 in war ; at least till his ransom be paid. And this doctrine seems 
 to have been extended to negro-servants who are purchased, 
 when captives, of the nations with whom they are at war, and are 
 therefore supposed to continue in some degree the property of 
 the masters who buy them : though accurately that property (if 
 it indeed continues), consists, rather in the perpetual service, 
 than in the body or person of the captives. 
 
 2. Thus, again, whatever movables are found upon the sur- 
 face of the earth, or in the sea, and are unclaimed by any owner, 
 are supposed to be abandoned by the last proprietor ; and, as 
 such, are returned into the common stock and mass of things : 
 and therefore they belong, as in a state of nature, to the first oc- 
 cupant or fortunate finder, unless they fall within the description 
 of waifs, or estrays, or wreck, or hidden treasure ; for these, are 
 vested by law in the king, and form a part of the ordinary reve- 
 nue of the crown. 
 
 3. Thus too the benefit of the elements, the light, the air, 
 and the water, can only be appropriated by occupancy.^ If I 
 have an ancient window overlooking my neighbor's ground, he 
 may not erect any blind to obstruct the light : but if I build my 
 house close to his wall, which darkens it, I cannot compel him 
 to demolish his wall : for there the first occupancy is rather in 
 *403] him, than in me. If my neighbor *makes a tan-yard, so 
 as to annoy and render less salubrious the air of my house or 
 gardens, the law will furnish me with a remedy ; but if he is first 
 in possession of the air, and I fix my habitation near him, the 
 nuisance is of my own seeking, and may continue.^ If a stream 
 be unoccupied, I may erect a mill thereon, and detain the water ; 
 yet not so as to injure my neighbor's prior mill, or his meadow: 
 for he hath by the first occupancy acquired a property in the 
 current. 
 
 4. With regard likewise to animals /^ne naturce, all mankind 
 
 « Rights to light and air are rather of the nature of real property, than of 
 a personal nature. It has already been stated, that the. doctrine of " ancient 
 lights" is commonly rejected in this country. (See ante, pp. 232, 516.) 
 
 8 " It used to be thought that, if a man knew there was a nuisance, and 
 went and lived near it, he could not recover, because, it was said, it is he 
 that goes to the nuisance, and not the nuisance to him. That, however, u 
 not the law now." {Hole v. Barlow, 4 C. B. [N.S.] 336.) 
 
BY OCCUPANCY. 525 
 
 had by the on^inal grant of the Creator a right to pursue and 
 take any fowl or insect of the air, any fish or inhabitants of the 
 waters, and any beast or reptile of the field : and this natural 
 right still continues in every individual, unless where it is re- 
 strained by the civil laws of the country. And when a man has 
 once so seized them, they become while living his qualified ^^xo"^ 
 erty, or if dead, are absolutely his own : so that to steal them, or 
 otherwise invade this property, is, according to their respective 
 values, sometimes a criminal offence, sometimes only a civil in- 
 jury. The restrictions which are laid upon this right, by the 
 laws of England, rela|,e principally to royal fish, as wkale and 
 sturgeon, and such terrestrial, aerial, or aquatic animals as go 
 under the denomination of game; the taking of which is made the 
 exclusive right of the prince, and such of his subjects to whom 
 he has granted the same royal privilege. But those animals 
 which are not expressly so reserved, are still liable to be taken 
 and appropriated by any of the king's subjects, upon their own 
 territories ; in the same manner as they might have taken even 
 game itself, till these civil prohibitions were issued : there being 
 in nature no distinction between one species of wild animal and 
 another, between the right of acquiring property in a hare or a 
 squirrel, in a partridge or a butterfly : but the difference, at pres- 
 ent made, arises merely from the positive municipal law. 
 
 5. To this principle of occupancy also must be referred the 
 method of acquiring a special personal property in corn growing 
 on the ground, or other emblements by any possessor* of [*404 
 the land who hath sown or planted it, whether he be the owner 
 of the inheritance, or of a less estate : which emblements are 
 distinct from the real estate in the land, and subject to many 
 •:hough not all, the incidents attending personal chattels. They 
 were devisable by testament before the statute of wills, and at 
 the death of the owner shall vest in his executor and not his 
 heir ; they are forfeitable by outlawry in a personal action ; and 
 by the statute li Geo. II., ch. 19, though not by the common 
 law, they may be distrained for rent arrere. The reason for ad- 
 mitting the acquisition of this special property, by tenants who 
 have temporary interests, was formerly given ; and it was ex- 
 tended to tenants in fee, principally for the benefit of their credit- 
 ors: and therefore, though the emblements are assets in the 
 hands of the executor, are forfeitable upon outlawry, and dis- 
 
526 OF TITLE TO THINGS PERSONAL 
 
 trainable for rent, they are not in other respects considered as 
 personal chattels ; and particularly they are not the object of 
 larceny before they are severed from the ground. 
 
 6. The doctrine of property arising from accession is also 
 grounded on the right of occupancy. By the Roman la:w, if any 
 given corporeal substance received afterwards an accession by 
 natural or by artificial means, as by the growth of vegetables, 
 the. pregnancy of animals, the embroidering of cloth, or the con- 
 version of wood or metal into vessels and utensils, the original 
 owner of the thing was entitled by his right of possession to the 
 property of it under such its state of improvement ; but if the 
 thing itself, by such operation, was changed into a different 
 species, as by making wine, oil, or bread, out of another's grapes, 
 olives, or wheat, it belonged to the new operator ; who was only 
 to make a satisfaction to the former proprietor for the materials 
 which he had so converted. And these doctrines are implicitly 
 copied and adopted by our Bracton, and have since been 
 •405] *confirmed by many resolutions of the courts. It hath 
 even been held, that if one takes away and clothes another's 
 wife or son, and afterwards they return home, the garments shall 
 cease to be his property who provided them, being annexed to 
 the person of the child or woman.* 
 
 7. But in the case of confusion of goods, where thos^ of two 
 persons are so intermixed that the several portions can be no 
 longer distinguished, the English law partly agrees with, and 
 
 ' Where an article is delivered to a mechanic to be repaired, the 
 property in it, together with the accessorial additions, remains in the owner, 
 though the labor and materials used in the repairs render its value much 
 greater than when delivered to the mechanic . (Gregory v. Stryker, 2 Denio, 
 628.) So the owner of timber wrongfully taken -and manufactured into 
 shingles, may recover its value in its manufactured state as shingles. {Rict 
 V. Hollenbeck, 19 Barb. 664; see 10 Allen, 518; 32 Me. 404; 37 Mich. 332.) 
 
 It has been held in New York that the rule stated in the text, in regard to 
 the change of ownership, when the thing is altered into a different species, 
 only applies when the alteration is made by a person acting innocently, with- 
 out knowledge of the real title ; as, for instance, a purchaser from a thief, who 
 acts in the belief that the thief is the true owner of the goods. But if a wilful 
 wrong-doer takes the property of another, and converts it into a different 
 species, as by changing corn into whisky, the ownership is not changed, and 
 the original owner may claim the new product or recover its value. (Silsbury 
 V. McCoon, 3 N. Y. 379 ; see sXso Brown v. Sax, 7 Cow. 95 ; Tutile v. White, 
 46 Mich. 285; Hyde v. Cookson, 21 Barb. 92; Railroad Co. v. Hutchins, 
 37 O. St. 282 ; Gates v. Boom Co., 70 Mich. 309.) 
 
BY OCCUPANCY. 5-27 
 
 partly differs from, the civil. If the intermixture be by consent, 
 I apprehend that in both laws the proprietors have an interest 
 in common, in proportion to their respective shares. But if one 
 wilfully intermixes his money, corn, or hay, with that of another 
 man, without his approbation or knowledge, or casts gold in like 
 manner into another's melting-pot or crucible, the civil law, 
 though it gives the sole property of the whole to him who has 
 not interfered in the mixture, yet allows a satisfaction to the 
 other for what he has so improvidently lost. But our law, to 
 guard against fraud, gives the entire property, without any ac- 
 count, to him whose original dominion is invaded, and en- 
 deavored to be rendered uncertain without his own consent.' 
 
 8. There is still another species of property, which "(if it sub- 
 sists by the common law) being grounded on labor and invention, 
 is more properly reducible to the head of occupancy than any 
 other; since the right of occupancy itself is supposed by Mr 
 Locke, and many others, to be founded on the personal labor of 
 the occupant. And this is the right, which an author may be 
 supposed to have in his own original literary composition : so 
 that no other person without his leave may publish or make 
 profit of the copies. When a man by the exertion of his rational 
 powers has produced an original work, he seems to have clearl) 
 a *right to dispose of that identical work as he pleases, [*406 
 and any attempt to vary the disposition he has made of it, ap- 
 pears to be an invasion of that right. Now the identity of a 
 literary composition consists entirely in the sentiment and the 
 language ; the same conceptions, clothed in the same words, musi; 
 necessarily be the same composition : and whatever method be 
 taken of exhibiting that composition to the ear or the eye of 
 another, by recital, by writing, or by printing, in any number of 
 
 ' But in order that the person causing the admixture shall lose his title 1« 
 his own goods in favor of the innocent party, it is necessary that such ail- 
 mixture be wilful and fraudulent, and that the shares or portions belonging 
 respectively to each shall be incapable of being distinguished. Thus, if hats 
 of the same style and shape, belonging to two dealers, were wrongfully intei- 
 mixed by one of them, but were so marked that those of each owner could 
 be readily assorted, there would be no change of title. (11 Mete. 493 ; 93 
 U' S. 575; 30 Me. 237; 21 Pick. 298; 30 N. J. Eq. 291 ; 9 Barb. 440.) If 
 the intermixture be made innocently, or by accident, or by consent, it creates 
 an ownership in common, each owner's interest being proportionate to his 
 respective share. (See Hart v. Ten Eyck, 2 Johns. Ch. 62 ; JVowlen v. Colt, 6 
 Hill, 461 ; Moore v. Erie Ji. Co., 7 Lansing, 39 ; also 58 Vt. 468 ; 61 la. 648.) 
 
S«8 OF TITLE TO THINGS PERSONAL 
 
 copies, or at any period of time, it is always the identical work 
 of the author which is so exhibited ; and no other man (it hath 
 been thought) can have a right to exhibit it, especially for profit, 
 without the author's consent. This consent may perhaps be 
 tacitly given to all mankind, when an author suflFers his work to 
 be published by another hand, without any claim or reserve of 
 right, and without stamping on it any marks of ownership ; it 
 being then a present to the public, like building a church or 
 bridge, or laying out a new highway ; but, in case the author sells 
 a single book, or totally grants the copyright, it hath been sup- 
 posed, in the one case, that the buyer hath no more right to 
 multiply copies of that book for sale, than he hath to imitate for 
 the like purpose the ticket which is bought for admission to an 
 opera or a concert ; and that, in the other, the whole property, 
 with all its exclusive rights, is perpetually transferred to the 
 grantee. On the other hand it is urged, that though the ex- 
 clusive property of the manuscript, and all which it contains, 
 undoubtedly belongs to the author, before it is printed or pub- 
 lished ; yet, from the instant of publication, the exclusive right 
 of an author or his assigns to the sole communication of his ideas 
 immediately vanishes and evaporates ; as being a right of too 
 subtile and unsubstantial a nature to become the subject of 
 property at the common law, and only capable of being guarded 
 by positive statutes and special provisions of the magistrate.' 
 
 ' The right of literary property, as it is termed, which an author has in his 
 unpublished manuscripts, is one which exists and is protected by the common- 
 law ; and this common-law jurisdiction has not been done away with by modern 
 statutes of copyright. The author has a remedy, both in law and equity, 
 against one, who surreptitiously or otherwise, obtains possession of his 
 manuscripts, and attempts to publish them or circulate copies or reprints. 
 The right protected, in such cases, is that of ownership in the ideas and expres- 
 sions, as being the embodiment of thought in a particular form, rather than 
 in the manuscripts considered as tangible property. Ownership of the ideas 
 may even be severed from ownership of the manuscript. Thus, it has been 
 held that letters considered merely as documents belong to the receiver ; but 
 the writer has still a right of property in the contents, and power to control 
 publication, unless publication be necessary for the protection of character. 
 (S ;e Eyre v. Higbee, 35 Barb. 502.) In like manner, an artist has an exclusive 
 right of property in a painting execute* by him, and other persons will be 
 prohibited from issuing copies thereof. (Oertel v Wood, 40 How. Pr. 10.) 
 Oral lectures will be protected as well as written ones, since they consist of 
 tlioughts expressed in a form of language, which is sufficient to give a right 
 of property. (12 App. Cas. 326.) The author's right to the projection of 
 
BY OCCUPANCY. 529 
 
 The Roman law adjudged, that if one man wrote anything on 
 the paper or parchment of another, the writing should belong to 
 the owner of the blank materials ; meaning thereby the mechani- 
 cal operation of writing, for which it directs the *scribe to [*407 
 receive a satisfaction ; for in works of genius and invention, 
 as in painting on another man's canvas, the same law gave the 
 canvas to the painter. As to any other property in the works of 
 the understanding, the law is silent ; though the sale of literary 
 copies, for the purposes of recital or multiplication, is certainly 
 as ancient as the times of Terence, Martial, and Statins. Neither 
 with us in England hath there been (till very lately) any final 
 determination upon the right of authors at the common law. 
 
 But whatever inherent copyright might have been supposed to 
 
 his compositions may be lost by a dedication of them to the public, either 
 express or implied ; as, by the publication and general circulation of a work 
 not copyrighted. So it has been held that if a dramatic work be represented 
 upon the stage to an indiscriminate audience, any one who hears it may act 
 upon the stage whatever he may remember, and this will not be deemed a 
 violation of the author's rights. But he cannot copy the drama, while being 
 represented, or take notes of the contents, but must rely solely upon his re- 
 membrance. But this doctrine as to the right to reproduce from memory has 
 been much criticised, and is denied in recent decisions. (See Keene v. Wheatly, 
 9 Am. Law Reg. 33 ; Palmer v. De Witt, 47 N. Y. 532 ; Keene v. Clarke, 5 
 Rob. 38 ; Tompkins v. Halleck, 133 Mass. 32 ; French v. Conolly, i N. Y. 
 Weekly Dig. 196; 43 N. J. Eq. 365.) 
 
 The object of statutes of copyright has been to give to an author the exclu- 
 sive right to publish and circulate copies of his work for a certain period of time, 
 to impose special penalties for infringement, and in various ways to supplement 
 the methods and remedies of the common-law by others which may be, in cer- 
 tain cases, more feasible and advantageous. The statute of 8 Anne, referred 
 to in the text, has been repealed, and the present English law is found in the 
 acts 5 & 6 Vict., c. 45 ; 45 & 46 id., c. 40. By this it i.s provided, that, " the 
 sole and exclusive liberty of printing, or otherwise multiplying copies " of any 
 book (which word has in the act a very extensive signification) shall be reserved 
 to the author and his representatives for the term of his natural life and ten years 
 afterwards, or for the term of forty-two years, whichever is the longer period. 
 This right is made subject to certain conditions, such as the presentation of a 
 copy to the British Museum and to other libraries. The act also secures to 
 musical and dramatic composers the sole right of performing their composi- 
 tions, or representing their pieces, for the same term for which copyright is 
 granted. (See Broom & Hadley's Coram., ii., 582.) In this country, a compre- 
 hensive copyright act, quite similar i#its general scope to that of England, has 
 been passed by Congress. (See U. S. Rev. St. §§ 4948-4972 ; 18 St. at Large, 
 C- 301.) The period for which the copyright is granted is twenty-eight years, 
 and at the expiration of this term, a renewal may be obtained for fourteen years 
 more. (See 131 U. S. 123; 128 U. S. 617; 33 Fed. Rep. 381 ; 35 id. S61.) 
 34 
 
530 OF TITLE TO THINGS PERSONAL, ETC. 
 
 subsist by the common law, the statute 8 Ann., ch. 19 (amended 
 by Stat. IS Geo. III., ch. 53), hath now declared that the author 
 and his assigns shall have the sole liberty of printing and reprint- 
 ing his work for the term of fourteen years, and no longer, and 
 hath also protected that property by additional penalties and 
 forfeitures : directing farther, that if, • at the end of that terra, 
 the author himself be living, the right shall then return to 
 him for another term of the same duration: and a similar 
 privilege is extended to the inventors of prints and engravings, 
 for the term of eight-and-twenty years by the statutes 8 Geo. II., 
 ch. 13, and 7 Geo. III., ch. 38, besides an action for damages, with 
 double costs, by statute 17 Geo. III., ch. 57. All which parlia- 
 mentary protections appear to have been suggested by the excep- 
 tion in the statute of monopolies, 21 Jac. I., ch. 3, which allows a 
 royal patent of privilege to be granted for fourteen years to any 
 inventor of a new manufacture, for the sole working or making 
 of the same ; by virtue whereof it is held, that a temporary property 
 therein becomes vested in the king's patentee.^ 
 
 ' For the present patent law of England, see the statutes 46 & 47 Vict., c. 57, 51 & 52 Vict., c. 50. 
 In the United States, the subject of patents is regulated by Act of Congress (U. S. Rev. St., §§ 4883- 
 4937; 18 St. at Large, c. 77), which provides that " any person who has invented or discovered any 
 new or useful art, machine, manufacture, or composition of matter, or any new or useful improvement 
 thereof," may obtain a patent therefor. Under this provision, ^process is held patentable as being 
 an " art," as well as 'Ca^tnachineax means devised for using it. {Telephone CaseSy 126 U. S, 533.) 
 " A manufacturing process is clearly an art. Goodyear's patent was for a process, namely, the process 
 of vulcanizing india-rubber by subjecting it to a high degree of heat, when mixed with sulphur and a 
 mineral salt. A new process is usually the result of discovery, a machine of invention. One may 
 discover a new and useful improvement in the process of dyeing, tanning, etc., irrespective of any 
 particular form of machinery or mechanical device, and another may invent a labor-saving machine by 
 which the operation or process may be performed, and each may be entitled to his patent." {Tilgh' 
 mail v. Proctor, 102 U. S. 722; Cochrane v. Deener, 94 U. S. 780.) So a Tiav product or manu- 
 facture is patentable as well as a new process. {Rubber Co, v. Goodyear, 9 Wall. 788.) But a 
 principle is not patentable. Thus in the case of Morse's telegraph, a claim under his patent of 
 the exclusive right to the use of electro-magnetism as a motive power for making intelligible marks at 
 a distance was held not sustainable. {O'Reilly v. Morse, 15 How. U, S. 62,) " It amounted to a 
 claim to the exclusive use of one of the forces of nature for a particular purpose. It was not a claim 
 of any particular machinery, nor a claim of any particular process for utilizing the power, but a claim 
 of the power itself, — a claim put forward on the ground that the patentee was the first to discover 
 that it couldh^ thus employed." {Tilghman v. Proctor, 102 U. S. at p. 726.) 
 
 To be patentable, a machine, process, improvement, etc., must possess both novelty and utility 
 Csee Seymour v. Osborne, 11 Wall. 516; Glue Co. v. Upton, 97 U. S. 3), and must amount to an 
 invention or discovery. {Thompson v. Boisselier, ri4 U. S. i.) If an alleged invention involves 
 nothing beyond what is obvious to persons .■skilled in the art to which it relates, it is therefore not 
 patentable, since it is not the product of the inventive faculties. {Pearce v. Mulford, 102 U. S. ijz; 
 Slawson V. Grand St. R. Co., 107 U. S. 649.) That which simply requires ordinary mechanical 
 skill may not be patented. {Hollister v. Benedict Mfg. Co., ir3 U. S. 59.) So the substitution of 
 a known equivalent for one of the elements of a former structure is not patentable. {Crouch v. 
 Roemer, 103 U. S. 797; Morley Machine Co. v. Lancaster, 129 U. S. 263.) 
 
 A patent, under United States Laws, is granted for seventeen years, and the statutes specify 
 fully the method of procedure to obtain it. If it be procured by fraud, a suit may be brought by the 
 United States against the patentee to set it aside as null and void. {U. S.y. Bell Telephone Co., "8 
 U. S. 315.) 
 
OF TITLE BY PREROGATIVE, ETC. 53^ 
 
 CHAPTER XXVI. 
 
 [bL. COMM. — BOOK II. CH. XXVII.] 
 
 Of Title by Prerogative and Forfeiture, 
 
 A SECOND method of acquiring property in personal chattelj 
 is by the kings prerogative : whereby a right may accrue either 
 to the crown itself, or to such as claim under the title ot 
 the crown, as by the king's grant, or by prescription, which sup- 
 poses an ancient grant. 
 
 Such, in the first place, are all tributes, taxes and customs, 
 whether constitutionally inherent in the crown, as flowers of the 
 prerogative and branches of the census regalis or ancient royal 
 revenue, or whether they be occasionally created by authority of 
 parliament ; of both which species of revenue we treated largely 
 in the former book. In these the king acquires and the subject 
 loses a property, the instant they become due : if paid, they are 
 a chose in possession ; if unpaid, a chose in action. Hither also 
 may be referred all forfeitures, fines, and amercements due to the 
 king, which accrue by virtue of his ancient prerogative, or by 
 particular modern statutes : which revenues created by statute 
 do always assimilate, or take the same nature, with the ancient 
 revenues ; and may therefore be looked upon as arising from 
 a kind of artificial or secondary prerogative. And, in either case 
 the owner of a thing forfeited and the person fined or amerced, 
 lose and part with the property of the forfeiture, fine, or amerce- 
 ment, the instant the king or his grantee acquires it. 
 
 * In these several methods of acquiring property by [*409 
 prerogative there is also this peculiar quality, that the king 
 cannot have a joint property with any person in one entire 
 chattel, or such a one as is not capable of division or separation; 
 but where the titles of the king and a subject concur, the 
 king shall have the whole : in like manner as the king cannot, 
 either by grant or contract, become a joint-tenant of a chattel 
 real with another person but by such grant or contract shall be- 
 come entitled to the whole in severalty. Thus, if a horse be given 
 
532 OF TITLE BY PREROGATIVE 
 
 to the king and a private .person, the king shall have the 
 sole property : if a bond be made to the king and a subject, 
 the king shall have the whole penalty ; the debt or duty being 
 one single chattel ; and so if two persons have the property of a 
 horse between them, or have a joint debt owing them on bond, 
 and one of them assigns his part to the king, or is attainted, 
 whereby his moiety is forfeited to the crown ; the king shall have 
 the entire horse, and entire debt. For, as it is not consistent 
 with the dignity of the crown to be partner with a subject, 
 so neither does the king ever lose his right in any instance ; but 
 where they interfere, his is always preferred to that of another 
 person, from which two principles it is a necessary consequence, 
 that the innocent though unfortunate partner must lose his share 
 in both the debt and the horse, or in any other chattel in the 
 same circumstances. 
 
 This doctrine has no opportunity to take place in certain 
 other instances of title by prerogative, that remain to be men- 
 tioned ; as the chattels thereby vested are originally and solely 
 vested in the crown, without any transfer or derivative assign- 
 ment either by deed or law from any former proprietor. Such is 
 the acquisition of property in wreck, in treasure-trove, in waifs, in 
 •410] estrays, in royal fish, in swans, and the *like ; which are 
 not transferred to the sovereign from any former owner, but are 
 originally inherent in him by the rules of law, and are derived to 
 particular subjects, as royal franchises, by his bounty. These are 
 ascribed to him, partly upon the general principle of their being 
 bona vacantia, and are vested in the king, as well to preserve 
 the peace of the public, as in trust to employ them for the safety 
 and ornament of the commonwealth. 
 
 There is also a kind of prerogative copyright subsisting in cer- 
 tain books, which is held to be vested in the crown upon differ- 
 ent reasons. Thus, i. The king, as the executive magistrate, has 
 the right of promulgating to the people all acts of state 
 and government. This gives him the exclusive privilege of print- 
 ing, at his own press, or that of his grantees, all acts of parlia- 
 ment, proclamations, and orders of council. 2. As supreme head 
 of the church, he hath a right to the publication of all liturgiei 
 and books of divine service. 3. He is also said to have a right 
 by purchase to the copies of such law books, grammars, and other 
 compositions, as were complied or translated at the expense of the 
 
AND FORFEITUKE. 533 
 
 crown. And upon these two last principles, combined, the ex- 
 clusive right of printing the translation of the Bible is founded. 
 
 There still remains another species of prerogative property, 
 founded upon a very different principle from any that have been 
 mentioned before ; the property of such animals fera naturcz, as 
 are known by the denomination of game, with the right of pur- 
 suing, taking, and destroying them : which is vested in the king 
 alone, and from him derived to such of his subjects as have 
 received the grants of a chase, a park, a free warren, or free 
 fishery. We have already shown, and indeed it cannot be denied, 
 that by the law of nature every man, from the prince to the peas- 
 ant, has an equal right of pursuing, and taking to his own use, 
 all such creatures as zx&ferce naturce, and therefore the property 
 of nobody, but liable to be seized by the first occupant. But it 
 follows from the very end and constitution of society, that this 
 natural right, as well as many others belonging to man as an indi- 
 vidual, may be restrained by positive laws enacted for reasons of 
 state, or for the supposed benefit of the community. This re- 
 striction may be either with respect to Xkve. place in which this right 
 may or may not be exercised ; with respect to the animals that 
 are tlie subject of this right ; or with respect to the persons al- 
 lowed or forbidden to exercise it. And, in consequence of this 
 authority, we find that the municipal laws of many nations have 
 exerted such power of restraint ; have in general forbidden 
 the entering on another man's grounds, for any cause, without the 
 owner's leave ; have extended their protection to such particular 
 animals as are usually the objects of pursuit ; and have invested 
 the prerogative of hunting and taking such animals in the sov- 
 ereign of the state only, and such as he shall authorize.' 
 
 * III. I proceed now to a third method, whereby a title [*420 
 to goods and chattels may be acquired and lost, viz. \iy forfeiture 
 as a punishment of some crime or misdemeanor in the party 
 
 The succeeding portions of this chapter which treat of the English game 
 laws are here omitted, as being of little importance to the American student. 
 These laws were revised in 1831, by statute i & 2 Wm. IV., ch. 32, which 
 allowed any person, who purchased a certificate or license, to kill game upon 
 his own land, or on the land of any other person with his permission. 
 
 In this country, laws have been passed in a number of the States, pro 
 hibiting the killing of game at certain seasons of the year ; but statutes 
 similar to the former English game laws, discriminating in favor of particular 
 classes of persons in regard to the right to kill game, are nowhere in force. 
 {See Sterling V. Jackson, 69 Mich, 488.) 
 
534 OF TITLE PY PREROGATIVE, ETC. 
 
 forfeiting, and as a compensation for the offence and injury coni' 
 mitted against him to whom they are forfeited. Of forfeitures, 
 considered as the means whereby real property might be lost and 
 acquired, we treated in a former chapter. It remains therefore in 
 this place only to mention by what means or for what offences, 
 goods and chattels become liable to forfeiture. 
 
 In the variety of penal laws with which the subject is at 
 present encumbered, it were a tedious and impracticable task 
 to reckon up the various forfeitures inflicted by special statutes, 
 for particular crimes and misdemeanors ; some of which are mala 
 in se, or offences against the divine law, either natural or revealed ; 
 but by far the greatest part are mala prohibita, or such as 
 derive their guilt merely from their prohibition by the laws of the 
 land : such as is the forfeiture of 40J. per month by the statute 5 
 Eliz., ch. 4, for exercising a trade without having served seven 
 years as an apprentice thereto ; and the forfeiture of 10/. by 9 Ann., 
 ch. 23, for printing an almanac without a stamp. I shall there- 
 fore confine myself to those offences only, by which all the goods 
 and chattels of the offender are forfeited: referring the student 
 for such, where pecuniary mulcts of different quantities are 
 inflicted, to their several proper heads under which very many of 
 them have been or will be mentioned, or else to the collections 
 of Hawkins, and Burn, and other laborious compilers. Indeed, 
 as most of these forfeitures belong to the crown, they may seem 
 as if they ought to have been referred to the preceding method 
 of acquiring personal property, namely, by prerogative. But as, 
 in the instance of partial forfeitures, a moiety often goes to the 
 informer, the poor, or sometimes to other persons; and as one 
 total forfeiture, namely, that by a bankrupt who is guilty of felony 
 *4211 by *concealing his effects, accrues entirely to his credi- 
 tors, I have therefore made it a distinct head of transferring 
 l)roperty. 
 
 Goods and chattels then are totally forfeited by conviction of 
 high treason or misprision of treason ; of petit treason ; of felony 
 in general, and particularly o{ felony de se, and of manslaughter; 
 nay, even by conviction of excusable homicide ; by outlawry for 
 treason or felony ; by conviction of petit larceny ; by flight, m 
 treason or felony, even though the party be acquitted of the fact ; 
 by standing mute, when arraigned of felony ; by drawing a 
 vueapon on a judge, or striking any one in the presence of tht 
 
OF TITLE BY CUSTOM. 535 
 
 kings courts ; by prcemunire ; by pretended prophecies, upon a 
 second conviction ; by owling ; by the residing abroad of arti- 
 ficers ; and by challenging to fight on account of money won at 
 gaming.^ All these offences, as will more fully appear in the 
 fourth book of these Commentaries, induce a total forfeiture of 
 goods and chattels. 
 
 And this forfeiture commences from the time of conviction, 
 not the time of committing the fact, as in forfeitures of real 
 property. For chattels are of so vague and fluctuating a nature, 
 that to affect them by any relation back, would be attended with 
 more inconvenience than in the case of landed estates : and part, 
 if not the whole of them, must be expended in maintaining the 
 delinquent, between the time of committing the fact and his 
 conviction. Yet a fraudulent conveyance of them, to defeat the 
 interest of the crown, is made void by statute 13 Eliz., ch. 5. 
 
 CHAPTER XXVII. 
 
 [bL. COMM. BOOK II. CH. XXVIII.] 
 
 Of Title by Custom. 
 
 A FOURTH method of acquiring property in things, personal, 
 or chattels, is by custom .• whereby a right vests in some particu- 
 lar persons, either by the local usage of some particular place, 
 or by the almost general and universal usage of the kingdom. It 
 were endless should I attempt to enumerate all the several kinds 
 of special customs, which may entitle a man to a chattel interest 
 in different parts of the kingdom ; I shall therefore content my- 
 self with making some observations on three sorts of customary 
 interests, which obtain pretty generally throughout most parts of 
 the nation, and are therefore of more universal concern ; viz : 
 heriots, mortuaries and heir-looms} 
 
 ' Forfeiture for crime is now abolished, except in the case of outlawry 
 (33&3tVict., ch. 23[i87o).] 
 
 'Tlie matter in this chapter relating to heriots and mortuaries is here 
 omitted, since these are subjects peculiar to English law. The doctrine ol 
 heirlooms is also confined to English law, unless title-deeds are to b« 
 
536 OF TITLE BY CUSTOM. 
 
 I. (3.) Heir-loomsare such goods and personal chattels, as, con- 
 trary to the nature of chattels, shall go by special custom to the 
 heir along with the inheritance, and not to the executor of the 
 last proprietor. The termination, loom, is of Saxon original ; in 
 which language it signifies a limb or member ; so that an heir- 
 loom is nothing else but a limb or member of the inheritance. 
 They are generally such things as cannot be taken away without 
 damaging or dismembering the freehold : otherwise the general 
 rule is, that no chattel interest whatsoever shall go to the heir, 
 notwithstanding it be expressly limited to a man and his heirs, 
 *428] but shall vest in the executor. But deei; in a real *author- 
 ized park, fishes in a pond, doves in a dovehouse, &c., though in 
 themselves personal chattels, yet they are so annexed to and so 
 necessary to the well-being of the inheritance, that they shall 
 accompany the land wherever it vests, by either descent or pur- 
 chase. For this reason also I apprehend it is, that the ancient 
 jewels of the crown are held to be heir-looms ; for they are ne- 
 cessary to maintain the state, and support the dignity, of the 
 sovereign for the time being. Charters likewise, and deeds, court- 
 rolls, and other evidences of the land, together with the chests 
 in which they are contained, shall pass together with the land to 
 the heir, in the nature of heir-looms, and shall not go to the 
 executor. By special custom also, in some places, carriages, 
 utensils, and other household implements, may be heir-looms ; 
 but such . custom must be strictly proved. On the other hand, 
 by almost general custom, whatever is strongly affixed to the 
 freehold or inheritance, and cannot be severed from thence 
 without violence or damage, " quod ab eedibus non facile 
 revellitur" is become a member of the inheritance, and shall 
 thereupon pass to the heir ; as chimney-pieces, pumps, old fixed 
 or dormant tables, benches, and the like.^ A very similar notion 
 to which prevails in the duchy of Brabant ; where they rank 
 certain things movable among those of the immovable kind, 
 calling them by a very particular appellation, pradia volantia, or 
 
 deemed in this country as coining within this designation ; but this is a 
 question yet unsettled. This subject is regarded, however, of sufficient 
 historical interest to be retained. 
 
 * Though articles firmly attached to the freehold were formerly described 
 as heir-looms, as stated in the text, they are now considered as included 
 within the category of " fixtures,'' and as passing to the heir by virtue of tha 
 rules relating to this subject. See ante, p. 223, note 10. 
 
OF TITLE BY CUSTOM. 53; 
 
 volatile estates ; such as beds, tables, and other heavy imple- 
 ments of furniture. 
 
 Other personal chattels there are, which also descend to the 
 heir in the nature of heir-looms, as a monument or tombstone in 
 a church, or the coat-armor of his ancestor there *hung [*429 
 up, with the pennons and other ensigns of honor, suited to his 
 degree. In this case, albeit the freehold of the church is in the 
 parson, and these are annexed to that freehold, yet cannot the 
 parson or any other take them away or deface them, but is liable 
 to an action from the heir. Pews in the church are somewhat 
 of the same nature, which may descend by custom immemorial 
 (without any ecclesiastical concurrence) from the ancestor to the 
 heir.' But though the heir has a property in the monuments and 
 escutcheons of his ancestors, yet he has none in their bodies 01 
 ashes ; nor can he bring any civil action against such as inde- 
 cently at least, if not impiously, violate and disturb their remains, 
 when dead and buried."* The parson, indeed, who has the free- 
 hold of the soil, may bring an action of trespass against such 
 as dig and disturb it ; and if any one in taking up a dead body 
 steals the shroud or other apparel, it will be felony ; for the 
 property thereof remains in the executor, or whoever was at the 
 charge of the funeral. 
 
 'The interest of a pewholder is generally held in this country to be in the nature 
 of an easement, and therefore real property, though in some States it is provided by 
 statute that it shall be deemed personal estate. This easement consists in the right 
 to occupy the pew upon occasions of public wor^ip, but the pew-owner has no legal 
 interest in the church edifice. {Abernethy v. Church of the Puritans, 3 Daly, i .) 
 And his right is subject to the power of the trustees to make an alteration or enlarg. 
 ment in the church, and thereby change the relative position of the pew, or otherwise 
 affect its convenience in use. But if the pew be unnecessarily destroyed by such 
 changes, he will be entitled to a reasonable and adequate compensation. (See Voor- 
 hea V. Presbyterian Church, 8 Barb. 135; Cooper v. Presbyterian Church, 32 id. 222; 
 Sohier v. Trinity Church, 109 Mass. i; Jones v. Towne, 58 N. H. 462; also 13 
 Abb. N. C. 91 ; 59 Me. 245.) 
 
 * But it was determined at common-law, that the stealing of dead bodies, though 
 for purposes of dissection, was an indictable offence as a misdemeanor, "it being 
 considered a practice contrary to common decency, and shocking to the general 
 sentiments and feelings of mankind." And in this country, statutes have been passed 
 ui a number of the States declaring such an act criminal and punishable with heavy 
 penalties. (See N. Y. Penal Code, §§ 305-315.) There is no right of property in 
 a dead body. (23 So. Car. 25; see 14 Amer. Law Rev. 57.) Some States, how- 
 ever, recognize a quasi property as vested in the next of kin. (10 R. I. 227; 42 Pa. 
 St. »93; 4 Bradf. 503; 130 Mass. 422.) 
 
538 OF TITLE BY SUCCESSION, 
 
 But to return to heir-looms; these, though they be mere 
 chattels, yet cannot be devised away from the heir by will ; but 
 such a devise is void, even by a tenant in fee-simple. For though 
 the owner might during his life have sold or disposed of them, 
 as he might of the timber of the estate, since as the inheritance 
 was his own, he might mangle or dismember it as he pleased ; 
 yet they being at his death instantly vested in the heir, the devise 
 (which is subsequent and not to take effect till after his death) 
 shall be postponed to the custom, whereby they have already d& 
 scended. 
 
 CHAPTER XXVIII. 
 
 [BL. COMM. BOOK II. CH. XXIX.] 
 
 Of Title by Succession, Marriage, and judgment. 
 
 In the present chapter we shall take into consideration three 
 other species of title to goods and chattels. 
 
 V. The fifth method therefore of gaining a property in chat- 
 tels, either personal or real, is by succession : which is, in strict- 
 ness of law, only applicable to corporations aggregate of many, as 
 dean and chapter, mayor and commotialty, master and fellows, 
 and the like ; in which one set of men may, by succeeding an- 
 other set, acquire a property in all the goods, movables, and 
 other chattels of the corporation. The true reason whereof is, 
 because in judgment of law a corporation never dies : and there- 
 fore the predecessors, who lived a century ago, and their succes- 
 sors now in being, are one and the same body corporate. 
 Which identity is a property so inherent in the nature of 
 a body politic, that, even when it is meant to give any thing 
 to be taken in succession by such a body, that succession need 
 not be expressed : but the law will of itself imply it. So that a 
 gift to such a corporation, either of lands or of chattels, without 
 naming their successors, vests an absolute property in them so 
 long as the corporation subsists. And thus a lease for years, an 
 •431] *obligation, a jewel, a flock of sheep, or other chattel 
 interest, will vest in the successors, by succession, as well as in 
 the identical members to whom it was originally given. 
 
MARRIAGE, AND JUDGMENT. 539 
 
 But, with regard to sole corporations, a considerable distinction 
 must be made. For if such sole corporation be the representative 
 of a number of persons ; as the master of a hospital, who is a 
 corporation for the benefit of the poor brethren ; an abbot, or 
 prior, by the old law before the Reformation, who represented the 
 whole convent ; or the dean of some ancient cathedral, who stands 
 in the place of and represents, in his corporate capacity, the 
 chapter ; such sole corporations as these have, in this respect, the 
 same powers as corporations aggregate have, to take personal 
 property or chattels in succession. And therefore a bond to 
 such a master, abbot, or dean, and his successors, is good in law, 
 and the successor shall fiave the advantage of it, for the benefit 
 of the aggregate society, of which he is in law the representative. 
 Whereas in the case of sole corporations, which represent no 
 others but themselves, as bishops, parsons, and the like, no chat- 
 tel interest can regularly go in succession : and therefore, if a 
 lease for years be made to the bishop of Oxford and his succes- 
 sors, in such case his executors or administrators, and not his 
 successors, shall have it. For the word successors, when applied 
 to a person in his political capacity, is equivalent to the word 
 heirs in his natural ; and as such a lease for years, if made to 
 John and his heirs, would not vest in his heirs but his executors ; 
 so if it be made to John bishop of Oxford and his successors, who 
 are the heirs of his body politic, it shall still vest in his executors 
 and not in such his successors. The reason of this is obvious : 
 for besides that the law looks upon goods and chattels as'of too 
 low and perishable a nature to be limited either to heirs, or such 
 successors as are equivalent to heirs ; it would also follow, that 
 if any such chattel interest (granted to a sole corporation and 
 his successors) were allowed to descend to such successor, the 
 property thereof must be in abeyance from the *death of [*432 
 the present owner until the successor be appointed : and this is 
 contrary to the nature of a chattel interest, which can never be 
 in abeyance or without an owner ; but a man's right therein, 
 when once suspended, is gone for ever. This is not the case in 
 corporations aggregate, where the right is never in suspense ; 
 nor in the other sole corporations before mentioned, who are 
 rather to be considered as heads of an aggregate body, than sub- 
 sisting merely in their own right ; the chattel interest therefore, 
 in sui;h a case, is really and substantially vested in the hospital 
 
540 OF TITLE BY SUCCESSION, 
 
 convent, chapter, or other aggregate body; though the head is 
 the visible person in whose name every act is carried on, and in 
 whom every interest is therefore said (in point of form) to vest. 
 But the general rule, with regard to corporations merely sole, is 
 this, that no chattel can go to or be acquired by them in right of 
 succession. 
 
 Yet to this rule there are two exceptions. One in the case 
 of the king, in whom a chattel may vest by a grant of it formerly 
 made to a preceding king and his successors. The other ex- 
 ception is, where, by a particular custom, some particular cor- 
 porations sole have acquired a power of taking particular chattel 
 interests in succession. And this custom, being against the 
 general tenor of the common law, must be strictly interpreted 
 and not extended to any other chattel interests than such im- 
 memorial usage will strictly warrant. Thus the chamberlain of 
 London, who is a corporation sole, may by the custom of London 
 take bonds and recognizances to himself and his successors, for 
 the benefit of the orphan's fund : but it will not follow from 
 thence, that he has a capacity to take a lease for years to himself 
 and his successors for the same purpose ; for the custom extends 
 not to that : nor that he may take a bond to himself and his suc- 
 cessors, for any other purpose than the benefit of the orphan's 
 fund ; for that also is not warranted by the custom. Wherefore, 
 upon the whole, we may close this head with laying down this 
 general rule ; that such right of succession to chattels is 
 *433]" *universally inherent by the common law in all aggre- 
 gate corporations, in the king, and in such single corporations as 
 represent a number of persons ; and may, by special custom, 
 belong to certain other sole corporations for some particular pur- 
 poses ; although generally, in sole corporations, no such right 
 can exist. 
 
 VI. A sixth method of acquiring property in goods and chat- 
 tels is by marriage ; whereby those chattels, which belonged 
 formerly to the wife, are by act of law vested in the husband 
 wilh the same degree of property and with the same powers, as 
 the wife, when sole, had over them. 
 
 This depends entirely on the notion of a unity of person 
 between the husband and wife ; it being held that they are one 
 person in law, so that the very being and existence of the woman 
 is suspended during the coverture, or entirely merged or incop 
 
MARRIAGE, AND JUDGMENT. 541 
 
 porated in that of the husband. And hence it follows, thai 
 whatever personal property belonged to the wife, before mar- 
 riage, is by marriage absolutely vested in the husband. In a reai 
 estate, he only gains a title to the rents and profits during cover- 
 ture : for that, depending upon feudal principles, remains entire 
 to the wife after the death of her husband, or to her heirs, if she 
 dies before him ; unless, by the birth of a child, he becomes 
 tenant for life by the curtesy. But, in chattel interests, the sole 
 and absolute property vests in the husband, to be disposed of at 
 his pleasure, if he chooses to take possession of them : for, unless 
 he reduces them to possession, by exercising some act of owner- 
 ship upon them, no property vests in him, but they shall remain 
 to the wife, or to her representatives, after the coverture is 
 determined.' 
 
 There is therefore a very considerable difference in the 
 acquisition of this species of property by the husband, *ac- [*434 
 cording to the subject-matter ; viz : whether it be a chattel real 
 or chattel personal: and, of chattels personal, whether it be in 
 possession or in action only. A chattel real vests in the husband, 
 not absolutely, but sub modo. As, in case of a lease for years, 
 the husband shall receive all the rents and profits of it, and may, 
 if he pleases, sell, surrender, or dispose of it during the cover- 
 ture : if he be outlawed or attainted, it shall be forfeited to the 
 king ; it is liable to execution for his debts : and, if he survives 
 his wife, it is to all intents and purposes his own. Yet, if he has 
 made no disposition thereof in his lifetime, and dies before his 
 wife, he cannot dispose of it by will : for, the husband having 
 made no alteration in the property during his life, it never was 
 transferred from the wife ; but after his death she shall remain 
 in her ancient possession, and it shall not go to his executors. 
 So it is also of chattels personal (or choses) in action : as debts 
 upon bond, contracts, and the like : these the husband may have 
 if he pleases ; that is, if he reduces them into possession by re- 
 ceiving or recovering them at law. And, upon such receipt or 
 recovery they are absolutely and' entirely his own ; and shall go 
 to his executors or administrators, or as he shall bequeath them 
 by will, and shall not revest in the wife. But if he dies before 
 
 * In regard to the changes effected in these rules of the common-law by 
 fecent legislation, see ante, p. 154 note. But so far as unchanged by such 
 'tatutes, these rules are still in force, both in England and in this country. 
 
542 OF TITLE BY SUCCESSION, 
 
 he has recovered or reduced them into possession, so that at his 
 death they still continue choses in action, they shall survive to 
 the wife ; for the husband never exerted the power he had of 
 obtaining an exclusive property in them. And so, if an estray 
 comes into the wife's franchise, and the husband seizes it, it is 
 absolutely his property, but if he dies without seizing it, his ex- 
 ecutors are not now at liberty to seize it, but the wife or her heirs ; 
 for the husband never exerted the right he had, which right de- 
 termined with the coverture. Thus, in both these species of 
 property the law is the same, in case the wife survives the hus- 
 band ; but, in case the husband survives the wife, the law is veiy 
 different with respect to chattels real z.'oA choses inaction: fo.' 
 *435] he shall have *the chattel real by survivorship, but not 
 the chose in action ; except in the case of arrears for rent, due 
 to the wife before her coverture, which in case of her death are 
 given to the husband by statute 32 Hen. VIII., ch. 37. And the 
 reason for the general law is this : that the husband is in abso- 
 lute possession of the chattel real during the coverture, by a kind 
 of joint-tenancy with his wife ; wherefore the law will not wrest 
 it out of his hands, and give it to her representatives ; though, 
 in case he had died first, it would have survived to the wife, un- 
 less he thought proper in his lifetime to alter the possession. 
 But a chose in action shall not survive to him, because he never 
 was in possession of it at all, during the coverture ; and the only 
 method he had to gain possession of it, was by suing in his wife's 
 right ; but as, after her death he cannot (as husband) bring an 
 action in her right, because they are no longer one and the same 
 person in law, therefore he can never (as such) recover the pos- 
 session. But he still will be entitled to be her administrator ; 
 and may, in that capacity, recover such things in action as be- 
 came due to her before or during the coverture. 
 
 Thus, and upon these reasons, stands the law between hus- 
 band and wife, with regard to chattels real and choses in action ; 
 but, as to chattels personal, (or choses) in possession, which the 
 wife hath in her own right, as ready money, jewels, household 
 goods, and the like, the husband hath therein an immediate and 
 absolute property, devolved to him by the marriage, not only 
 potentially but in fact, which never can again revest in the wife 
 or her representatives. 
 
 And. as the husband may thus generally acquire a property 
 
M4RRIAGE, AND JUDGMENl. 543 
 
 in all the personal substance of the wife, so in one particular in- 
 stance the wife may acquire a property in some of her husband's 
 goods : which shall remain to her after his death and not go to 
 his executors. These are called her paraphernalia *which [*436 
 is a term borrowed from the civil law, and is derived from the 
 Greek language, signifying something over and above her dower.- 
 Our law uses it to signify the apparel and ornaments of the wife, 
 suitable to her rank and degree ; and therefore even the jewels 
 of a peeress, usually worn by her, have been held to be para- 
 phernalia. These she becomes entitled to at the death of her 
 husband, over and above her jointure or dower, and preferably 
 to all other representatives. Neither can the husband devise by 
 his will such ornaments and jewels of his wife ; though during 
 his life perhaps he hath the power (if unkindly inclined to ex- 
 ert it) to sell them or give them away. But if she continues in 
 the use of them till his death, she shall afterwards retain them 
 against his executors and administrators, and all other persons 
 except creditors where there is a deficiency of assets. And her 
 necessary apparel is protected even against the claim of cred- 
 itors." 
 
 VII. A judgment, in consequence of some suit or action in a 
 court of justice, is frequently the means of vesting the right and 
 property of chattel interests in the prevailing party. And here 
 we must be careful to distinguish between property", the right 
 of which is before vested in the party, and of which only posses- 
 sion is recovered by suit or action ; and property, to which a man 
 before had no determinate title or certain claim, but he gains as 
 well the right as the possession by the process and the judgment 
 of the law. Of the former sort are all debts and choses in action : 
 as if a man gives bond for .;£20, or agrees to buy a horse at a stated 
 sum, or takes up goods of a tradesman upon an implied contract 
 to pay as much as they are reasonably worth : in all these cases 
 the right accrues to the creditor, and is completely vested in 
 
 'It is common to provide by statute in this country that, upon the hus- 
 band'.s death, not only such articles of wearing apparel and ornament as were 
 »t common-law included in the wife's paraphernalia, shall be set apart for 
 her use, to the exclusion of creditors' claims, but also various other articles cl 
 domestic use and convenience ; such as a reasonable amount of furniture, 
 crockery, household utensils, family pictures, etc. The classes of articles 
 thus set apart are specifically enumerated by the statutes of the several 
 States. (As to paraphernalia, see 49 N. Y. 303.) 
 
544 OF TITLE BY SUCCESSION, 
 
 him, at the time of the bond being sealed, or the contract oi 
 agreement made ; and the law only gives him a remedy to re- 
 cover the possession of that right, which already in justice be- 
 *437] longs to him. * But there is also a species of property to 
 which a man has not any claim or title whatsoever, till after suit 
 •commenced and judgment obtained in a court of law ; where the 
 right and the remedy do not follow each other, as in common 
 cases, but accrue at one and the same time : and where, before 
 judgment had, no man can say that he has any absolute prop- 
 erty, either in possession or in action. Of this nature are : — 
 
 I. Such penalties as are given by particular statutes, to be 
 recovered on an action popular ; or, in other words, to be re 
 covered by him or them that will sue for the same. Such as the 
 penalty of ;£soo, which those persons are by several acts of par- 
 liament made liable to forfeit, that being in particular offices or 
 situations in life, neglect to take the oaths to the government : 
 which penalty is given to him or them that will sue for the same. 
 Now here it is clear that no particular person, A. or B., has any 
 right, claim, or demand, in or upon this penal sum, till after 
 action brought ; for he that brings his action, and can bona fide 
 obtain judgment first, will undoubtedly secure a title to it, in ex- 
 clusion of everybody else. He obtains an inchoate imperfect 
 degree of property, by commencing his suit : but it is not con- 
 summated till judgment ; for, if any collusion appears, he loses 
 the priority he had gained. But, otherwise, the right so attaches 
 in the first informer, that the king (who before action brought 
 may grant a pardon which shall be a bar to all the world) cannot 
 after suit commenced remit any thing but his own part of the 
 penalty. For by commencing the suit the informer has made 
 the popular action his own private action, and it is not in the 
 power of the crown, or of any thing but parliament, to release 
 the informer's interest. This therefore is one instance, where a 
 '438] suit and judgment at law are *not only the means of 
 • recovering, but also of acquiring, property. And what is said 
 of this one penalty is equally true of all others, that are given 
 thus at large to a common informer, or to any person that 
 will sue for the same. They are placed, as it were, in a state of 
 nature, accessible by all the king's subjects, but the acquired 
 right of none of them ; open therefore to the first occupant, who 
 declares his intention to possess them by bringing his action; 
 
MARRIAGE, AND JUDGMENT. 545 
 
 and who carries that intention into execution, by obtaining judg- 
 ment to recover them. 
 
 2. Another species of property, that is acquired and lost by 
 suit and judgment at law, is that of damages given to a man by 
 a jury, as a compensation and satisfaction for some injury sus- 
 tained: as for a battery, for imprisonment, for slander, or for tres- 
 pass. Here the plaintiff has no certain demand till after verdict ; 
 but, when the jury has assessed his damages, and judgment is 
 given thereupon, whether they amount to twenty pounds or 
 twenty shillings, he instantly acquires, and the defendant loses 
 at the same time, a rigjit to that specific sum. It is true, that 
 this is not an acquisition so perfectly original as in the former in- 
 stance: for here the injured party has unquestionably a vague 
 and indeterminate right to some damages or other the instant he 
 receives the injury; and the verdict of the jurors, and judgment 
 of the court thereupon, do not in this case so properly vest a new 
 title in him, as fix and ascertain the old one ; they do not give., 
 hnt define, the right. But, however, though strictly speaking, 
 the primary right to a satisfaction for injuries is given by the 
 law of nature, and the suit is only the means of ascertaining and 
 recovering that satisfaction ; yet, as the legal proceedings are 
 the only visible means of this acquisition of property, we may 
 fairly enough rank such damages, or satisfaction assessed, under 
 the head of property acquired by suit and judgment at law. 
 
 •3. Hither also may be referred, upon the same prin- [*439 
 ciple, all title to costs and expenses of suit ; which are often ar- 
 bitrary, and rest entirely on the determination of the court, upon 
 weighing all circumstances, both as to the quantum, and also (in 
 the courts of equity especially, and upon motions in the courts of 
 law) whether there shall be any costs at all. These costs, there- 
 fore, when given by the court to either party, may be looked upon 
 as an acquisition made by the judgment of law. 
 
 3S 
 
546 OF TITLE BY GIFT, 
 
 CHAPTEK XXIX. 
 
 [bL COMM. BOOK II. CH. XXX.] 
 
 Of Title by Gift, Grant, and Contract. 
 
 We are now to proceed, according to the order marked out, 
 to the discussion of two remaining methods of acquiring a title 
 to property in things personal, which are much connected together, 
 and answer in some measure to the conveyances of real estates ; 
 being those by gift or grant, and by contract : whereof the former 
 vests a property in possession, the latter a property in action. 
 
 VIII. Gifts then, ox grants, which are the eighth method of 
 transferring personal piroperty, are thus to be distinguished from 
 each other, that gifts are always gratuitous, grants are upon some 
 consideration or equivalent ; and they may be divided, with regard 
 to their subject-matter, into gifts or grants of chattels real, and 
 gifts or grants of chattels personal. Under the head of gifts or 
 grants of chattels real, may be included all leases for years of 
 land, assignments, and surrenders of those leases ; and all the 
 other methods of conveying an estate less than freehold, which 
 were considered in the twentieth chapter of the present book, 
 and therefore need not be here again repeated : though these 
 very seldom carry the outward appearance of a gift, however 
 freely bestowed ; being usually expressed to be made in con- 
 sideration of blood, or natural affection, or of five or ten shil- 
 lings nominally paid to the grantor ; and in rase of leases, always 
 reserving a rent, though it be but a pepper-corn : any of which 
 considerations will, in the eye of the law, convert the gift, if exe- 
 cuted, into a grant ; if not executed, into a contract. 
 *441] *Grants or gifts, of chattels personal, are the act of 
 transferring the right and the possession of them ; whereby one 
 man renounces, and another man immediately acquires, all title 
 and interest therein ; which may be done either in writing, or by 
 word of mouth, attested by sufficient evidence, of which the 
 delivery of possession is the strongest and most essential. But 
 this conveyance, when me ely voluntary, is somewhat suspicious; 
 
GRANT, AND CONTRACT. 547 
 
 and is usually construed to be fraudulent, if credito s or others 
 become sufferers thereby. And, particularly, by statute 3 Hen. 
 VII., ch. 4, all deeds of gift of goods, made in trust to the use of 
 the donor, shall be void : because otherwise, persons might be 
 tempted to commit treason or felony, without danger of forfeiture ; 
 and the creditors of the donor might also be defrauded of their 
 rights. And by statute 13 Eliz., ch. 5, every grant or gift of 
 chattels, as well as lands, with an intent to defraud creditors or 
 others, shall be void as against such persons to whom such fraud 
 would be prejudicial ; but, as against the grantor himself, shall stand 
 good and effectual ; and all persons partakers in, or privy to, such 
 fraudulent grants, shall forfeit the whole value of the goods, one 
 moiety to the king, and another moiety to the party grieved ; 
 and also on conviction shall suffer imprisonment for half a 
 year.f 
 
 A true and proper gift or grant is.always accompanied with 
 delivery of possession, and takes effect immediately : as if A. gives 
 to B. 100/., or a flock of sheep, and puts him in possession of them 
 directly, it is then 2 gift executed in the donee ; and it is not in 
 the donor's power to retract it, though he did it without any con- 
 sideration or recompense : unless it be prejudicial to creditors ; 
 or the donor were under any legal incapacity, as infancy, cover- 
 ture, duress, or the like ; or if he were drawn in, circumvented, 
 or imposed upon, by false pretences, ebriety, or surprise. But if 
 the gift does not take effect, by delivery of immediate posses- 
 sion, it is then not properly a gift, but a contract ; *and [*442 
 this a man cannot be compelled to perform, but upon good and 
 sufficient consideration as we shall see under our next division.^ 
 
 ' Gifts are distinguished in law as of two classes : gifts inter vivos, or 
 between living persons, and gifts causa mortis, or those made in apprehen- 
 sion of death. This classification is not perfectly precise in its use of 
 terms, since all gifts in fact must be " between living persons ;" and the real 
 distinction must be understood to be that gifts inter vivos are those made 
 by a donor not under apprehension of death, while gifts causa mortis are 
 those made when such apprehension does exist, and by reason thereof. 
 There are important differences in the rules applicable to these two classes 
 of gifts, and they may therefore be referred to separately : — 
 
 I. Gifts inter vivos. — These gifts may be complete during the donor's life- 
 time, and, if properly effectuated by a valid delivery, are irrevocable by him. 
 Such delivery may be either actual or constructive. It is actual, when the article 
 given is actually transferred to the donee or placed in his possession ; while 
 such acts as giving to the donee the key of a warehouse or chest, in which 
 
 t See ante, p. 444, note 3. 
 
548 OF TITLE BY GIFT 
 
 IX. A contract, which usually conveys an interest merely in 
 action, is thus defined : " an agreement upon sufficient con- 
 sideration, to do or not to do a particular thing." From which 
 definition there arise three points to be contemplated in all con- 
 tracts : I. The agreement; 2. The consideration; and 3. The 
 thing to be done or omitted, or the different species of contracts. 
 
 First, then, it is an agreemetit, z mutual bargain or conven- 
 tion ; and therefore there must at least be two contracting parties, 
 of sufficient ability to make a contract ; as where A. contracts 
 
 the article is contained, or an order upon a bailee, which the latter accepts, 
 would be instances of a constructive or symbolical delivery. {Beaver v. 
 Beaver, 117 N. Y. 421 ; Allen v. Cowan, 23 N. Y. 502; see 55 Vt. 325; 18 
 N. H. 360 ; 25 Q. B. D. 57.) Valid choses in action or claims against third 
 persons may be the subjects of gift, as well as tangible, corporeal articles. A 
 transfer of the instrument or document evidencing such claim would be, in 
 general, a sufficient delivery; as, e.g., a gift of money deposited in a savings 
 bank by delivery of the pass-bpok (36 Conn. 88; 129 Mass. 425; 63 Me. 
 364) ; the transfer of a bond and mortgage {Hackney v. Vrooman, 62 Barb. 
 650) ; or of certificates of stock (10 Bosw. 362 ; 50 Conn. 472 ; 35 N. J. Eq. 
 314). But there can be no valid gift of the donor's own promise, though it be 
 expressed in writing, as in the form of a promissory note or check. (See 70 
 N. Y. 212.) If the sum payable upon such an instrument be collected, the 
 gift becomes complete, but until then it is revocable at the donor's pleasure. 
 It is, in effect, but a promise without consideration. Gifts inter vivos may be 
 avoided because obtained by fraud practiced upon the donor, or because they 
 irnpair or prejudice the just claims of creditors, or on account of the donor's 
 legal incapacity i)y reason of infancy, insanity, duress, etc. 
 
 II. Gifts causa mortis. — These cannot become complete during the 
 donor's lifetime, even though there be a valid delivery. The donor may re- 
 voke the gift at any time before his death, and a recovery from the existing 
 illness or disorder operates of itself as a revocation ; for such gifts depend 
 impliedly upon the condition that they shall become effectual and complete 
 only in the event of the donor's decease, since they are made only in appre- 
 hension of such a result. But in other respects the rules of law applicable 
 to the two classes of gifts are substantially the same. There must be a de- 
 livery which may be either actual or constructive, and the same varieties of 
 personal property may be the subject of gift. Thus, a bill of exchange, or 
 promissory note, or certificate of deposit, or other valid security in the donor's 
 favor, may be the subject of such a gift, whether indorsed by him or not; but 
 as to a note or check drawn by the donor himself, the rule is otherwise. 
 {Baskett V.Haskell, 107 U.S. 602; Williams v. Guile, 117N. Y.343; £'«k«0'v- 
 Clough, 63 N. H. 552 ; Coleman v. Parker, 114 Mass. 30; Bates v. Kempton, 
 7 Gray, 382 ; see 31 Mich. 185 ; 36 N. Y. 340.) In some States it is held that 
 a valid gift inter vivos may be made by a declaration of gift without actual de- 
 livery, if the thing to be given is then in the donee's possession, but that the 
 rule is otherwise in the case of a gdt causa mortis. (81 Me. 231 ; 14 R.I. 502.) 
 
GRANT, AND CONTRACT. 549 
 
 with B to pay him 100/., and thereby transfers a property in sucl. 
 sum to B. Which property is however not in possession, but in 
 action merely, and recoverable by suit at law ; wherefore it could 
 not be transferred to another person by the strict rules of the 
 ancient common law ; for no chose in action could be assigned or 
 granted over, because it was thought to be a great encouragemen 
 to Htigiousness, if a man were allowed to make over to a stranger 
 his right of going to law. But this nicety is now disregarded : 
 though, in compliance with the ancient principle, the form of as- 
 signing a chose in action is in the nature of a declaration of trust, 
 and an agreement to permit the assignee to make use of the 
 name of the assignor, in order to recover the possession." And 
 therefore, when in common acceptation a debt or bond is said to 
 be assigned over, it must still be sued in the original creditor's 
 name ; the person to whom it is transferred being rather an at- 
 torney than an assignee. But the king is an exception to this 
 general rule, for he might always either grant or receive a chose 
 in action by assignment : and our courts of equity, considering 
 that in a commercial country almost all personal property must 
 necessarily lie in contract, will protect the assignment of a chose 
 in action, as much as the law will that of a chose in possession. 
 
 * This contract or agreement may be either express or [*443 
 implied. Express contracts are where the terms of the agreement 
 are openly uttered and avowed at the time of the making, as to 
 deliver an ox, or ten loads of timber, or to pay a stated price for 
 certain goods. Implied are such as reason and justice dictate, 
 and which therefore the law presumes that every man undertakes 
 to perform. As, if I employ a person to do any business for me, 
 or perform any work ; the law implies that I undertook, or con- 
 tracted to pay him as much as his labor deserves. If I take up 
 wares from a tradesman, without any agreement of price, the 
 law concludes that I contracted to pay their real value. And there 
 is also one species of implied contracts, which runs through and 
 is annexed to all other contracts, conditions, and covenants, viz. 
 that if I fail in my part of the agreement, I shall pay the other 
 party such damages as he has sustained by such my neglect or 
 refusal. In short, almost all the rights of personal property 
 (when not in actual possession) do in great rheasure depend upon 
 contracts, of one kind or another, or at least might be reduced un- 
 
 2 See ante, p. 519, note 6. 
 
550 OF TITLE BY GIFT, 
 
 der some of them : which indeed is the method taken by the civil 
 law ; it having referred the greatest part of the duties and rights, 
 which it treats of, to the head of obligations ex contractu and 
 quasi ex contractu. 
 
 A contract may also be either executed, as if A. agrees to 
 change horses with B., and they do it immediately ; in which case 
 the possession and the right are transferred together : or it may 
 be executory, as if they agree to change next week ; here the 
 right only vests, and their reciprocal property in each other's 
 horse is not in possession but in action ; for a contract executed 
 (which differs nothing from a grant) conveys a chose in possession, 
 a contract executory conveys only a chose in action. 
 
 Having thus shown the general nature of a contract, we are 
 secondly, to proceed to the consideration upon which it is founded ; 
 *444] or the reason which moves the contracting party to *enter 
 into the contract. " It is an agreement, upon sufficient considera- 
 tion" The civilians hold, that in all contracts, either express or 
 implied, there must be something given in exchange, something 
 that is mutual or reciprocal. This thing, which is the price or 
 motive of the contract, we call the consideration : and it must be 
 a thing lawful in itself, or else the contract is void. A good 
 consideration, we have before seen, is that of blood or natural 
 affection between near relations ; the satisfaction accruing from 
 which the law esteems an equivalent for whatever benefit may 
 move from one relation to another. This consideration may 
 sometimes however be set aside, and the contract become void; 
 when it tends in its consequences to defraud creditors, or other 
 third persons, of their just rights. But a contract for any valua- 
 ble consideration, as for marriage, for money, for work done, 
 or for other reciprocal contracts, can never be impeached at law; 
 and, if it be of a sufficient adequate value, is neve? set aside in 
 equity; for the person contracted with has then given an 
 equivalent in recompense, and is therefore as much an owner, or 
 a creditor, as any other person.^ 
 
 s These statements need qualification ; for contracts, though made upon 
 valuable consideration, may be avoided when characterized by actual fraud 
 or illegality, may be set aside in equity on the ground of accident, or mistake 
 of material facts, are unenforceable when the provisions of the Statute of 
 Frauds are not complied with, etc. But it is a general rule that the adequacy 
 or inadequacy of the consideration shall not be allowed to affect the validity 
 of a contract; and an onerous obligation, involving greatly disproportionate 
 
GRANT, AND CONTRACT. 551 
 
 These valuable considerations are .divided by the civilians into 
 four species, i. Do ut des : as when I give money or goods, on 
 a contract that I shall be repaid money or goods for them again. 
 Of this kind are all loans of money upon bond, or promise 
 of repayment ; and all sales of goods, in which there is either an 
 express contract to pay so much for them, or else the law implies 
 a contract to pay so much as they are worth. 2. The second 
 species is, facio ut facias ; as, when I agree with a man to do his 
 work for him, if he will do mine for me ; or if two persons agree 
 to marry together ; or to do any positive act on both sides. Or, 
 it may be to forbear on one side on consideration of something 
 done on the other, as, that in consideration A., the tenant, will 
 repair his house, B., the landlord, will not sue him for waste. Or, 
 it may be for mutual forbearance on both sides ; * as, that [*445 
 in consideration that A. will not trade to Lisbon, B. will not trade 
 to Marseilles ; so as to avoid interfering with each other. 3. The 
 third species of consideration is, facio ut des: when a man agrees 
 to perform any thing for a price, either specifically mentioned, 
 or left to the determination of the law to set a value to it. And 
 when a servant hires himself to his master for certain wages or 
 an agreed sum of money : here the servant contracts to do his 
 master's service, in order to earn that specific sum. Otherwise, 
 if he be hired generally ; for then he is under an implied con- 
 tract to perform this service for what it shall be reasonably 
 worth. 4. The fourth species is, do ut facias : which is the 
 direct counterpart of the preceding. As when I agree with a 
 servant to give him such wages upon his performing such work : 
 which, we see, is nothing else but the last species inverted : for 
 servusfacit, ut hems det, and herus dat, ut servus faciat. 
 
 A consideration of some sort or other is so absolutely neces- 
 sary to the forming of a contract, that a nudum pactum or agree- 
 ment to do or pay any thing on one side, without any compensa- 
 tion on the other, is totally void in law ; and a man cannot be 
 compelled to perform it.* As if one man promises to give an- 
 
 labor or e.xpense, may depend upon a small consideration. If, however, the 
 consideration be so trifling as to render the contract unconscionable, relief 
 will generally be obtainable in equity. {Hume v. U. S., 132 U. S. 406.) 
 
 * [This must be read as confined to simple contracts ; for no consideration 
 IS essential to the validity of a contract under seal, though in some cases 
 creditors may treat voluntary deeds without consideration, as fraudulent and 
 invalid. The leading rule with respect to consideration is, that it must bt 
 
552 OF TITLE BY GIFT, 
 
 othei loo/., here there is nothing contracted for or given on the 
 one side, and therefore there is nothing binding on the other. And, 
 however a man may or may not be bound to perform it in 
 honor or conscience, which the municipal laws do not take upon 
 them to decide ; certainly those municipal laws will not compel 
 the execution of what he had no visible inducement to engage 
 for : and therefore our law has adopted the maxim of the civil law, 
 that ex nudopacto non oritur actio. But any degree of reciprocity 
 will prevent the pact from being nude : nay, even if the thing be 
 founded on a prior moral obligation (as a promise to pay a just 
 debt, though barred by the statute of limitations), it is no longer 
 nudum pactum!' And as this rule was principally established, 
 to avoid the inconvenience that would arise from setting up mere 
 *446] verbal promises, for which no good reason could * be as- 
 signed, it therefore does not hold in some cases, where such prom 
 ise is authentically proved by written documents. For if a man 
 enters into avoluntary bond, or gives a promissory note, he shall not 
 
 some benefit to the party by whom the promise is made, or to a third person 
 at his instance, or some detriment sustained (at the instance of the party 
 promising) by the party in whose favor the promise is made. A written 
 agreement, not under seal, is nudum pactum without consideration ; but a 
 negotiable security, as a bill of exchange, or promissory note, carries with it 
 prima facie evidence of consideration, which is binding in the hands of a 
 third party to whom it has been negotiated, but may be inquired into between 
 the immediate parties to the bill or note themselves. The consideration for 
 a contract, as well as the promise for which it is given, must also be' legal. 
 Thus, a contract for the sale of obscene or libellous prints, or for the fur- 
 therance of immoral practices, or contrary to public policy, or in contraven- 
 tion of the statute law, — in all these cases the considerations are invalid, and 
 the contracts void.] (See Traphagen v. Voorhees, 44 N. J. Eq. 21.) 
 
 ' But a prior moral obligation will not be a sufficient consideration to sup- 
 port a promise, unless it previously constituted a legal obligation, which has 
 become unenforceable by reason of a positive rule of law. Thus, the Statute 
 of Limitations bars suits upon simple contracts, after the lapse of a certain 
 period, usually six years : if, therefore, this time has elapsed without an 
 action being brought, the legal obligation to pay is changed into a moral ob- 
 ligation ; and this will be sufficient consideration for a new promise made 
 subsequently to discharge the obligation. So a promise to pay a debt dis- 
 charged in bankruptcy, or contracted while the debtor was an infant, may be 
 enforced on the same ground. But moral considerations of other kinds 
 will not support a promise. Thus, a promise made by a father to pay the ex- 
 pense previously incurred in taking care of his adult son, who had suddenly 
 been taken sick among strangers, was held not to be binding. (Mills v. Wy- 
 man, 3 Pick. 207; see 5 Johns. 272; 114 Pa. St. 358 & 496; 59 N. H. 407; 
 51 Mich. 121.) 
 
GRANT, AND CONTRACT. 553 
 
 be allowed to aver the want of a consideration in order to evade 
 the payment : for every bond, from the solemnity of the instru- 
 ment, and every note, from the subscription of the drawer, carries 
 with it an internal evidence of a good consideration. Courts of 
 justice will therefore support them both, as against the contractor 
 himself; but not to the prejudice of creditors, or strangers to the 
 contract." 
 
 We are next to consider, thirdly, the thing agreed to be done 
 or omitted. " A contract is an agreement, upon sufficient con- 
 sideration, to do or not to do a particular thingr The most usual 
 contracts, whereby the right of cha.ttels personal may be acquired 
 in the laws of England, are, i. That of sale or exchange. 2. That 
 of bailment. 3. That of hiring and borrowing. 4. That of 
 debt. 
 
 I. Sale, or exchange, is a transmutation of property from one 
 man to another, in consideration of some price or recompense in 
 value : for there is no sale without a recompense : there must be 
 quid pro quo. If it be a commutation of goods for goods, it is 
 more properly an exchange ; but if it be a transferring of goods 
 for money, it is called a sale ; which is a method of exchange 
 introduced for the convenience of mankind, by establishing a 
 universal medium, which may be exchanged for all sorts of other 
 property ; whereas if goods were only to be exchanged for goods, 
 by way of barter, it would be difficult to adjust the respective 
 
 ' Instruments under seal (as bonds) and negotiable paper, as promissory 
 notes, bills of exchange, etc., constitute exceptions to the general rule, that 
 the consideration must be something actually rendered or to be rendered, as 
 the price of the promise, the quid pro quo, since in contracts of these 
 kinds the existence of a consideration is presumed. In the case of bonds 
 f'lC, the seal is said to be sufficient evidence of a consideration ; this is be- 
 cause it is deemed to evince sufficient deliberation to serve as a substitute 
 for an actual consideration. In the case of negotiable paper, a consider- 
 aUon is only presumed to exist, when it is necessary to protect the rights 
 of innocent third parties, into whose possession the paper has passed before 
 niaturity. The ground on which this doctrine rests is that of public policy, 
 iince it is desirable that commercial paper should circulate freely as the rep- 
 resentative of money; and, to-secure this object, the interests of those who 
 purchase in good faith must necessarily be protected. But between the im- 
 mediate parties to negotiable paper, the consideration may always be inquired 
 into. Thus, if the payee sues the maker, the want of consideration may be 
 shown to bar his recovery ; but otherwise, if an indorsee sues. (See note 4, 
 above.) But in some States a seal, in executory contracts, is only presumptive 
 evidence of consideration, not conclusive. (N. Y. Code Civ. Pro. § 840.) 
 
554 OF TITLE BY GIFT, 
 
 values, and the carriage would be intolerably cumbersome. All 
 civilized nations adopted therefore very early the use of money ; 
 for we find Abraham giving " four hundred shekels of silver, 
 current money with the merchant," for the field of Macpelah ; 
 though the practice of exchange still subsists among several of 
 *447] the savage nations. But with regard to the law of *sales 
 and exchanges, there is no difEerence. I shall therefore treat of 
 them both under the denomination of sales only ; and shall con- 
 sider their force and effect, in the first place where the vendor 
 hath in himself, and secondly where he hath not, the property of 
 the thing sold. 
 
 Where the vendor hath in himself the property of the goods 
 sold, he hath the liberty of disposing of them to whomsoever he 
 pleases, at any time, and in any manner; unless judgment has 
 been obtained against him for a debt or damages, and the writ 
 of execution is actually delivered to the sheriff.' For then, by 
 the statute of frauds, the sale shall be looked upon as fraudulent, 
 and the property of the goods shall be bound to answer the debt, 
 from the time of delivering the writ. Formerly it was bound 
 from the teste, or issuing of the writ, and any subsequent sale 
 was fraudulent ; but the law was thus altered in favor of pur- 
 chasers, though it still remains the same between the parties ; 
 and therefore if a defendant dies after the awarding and before 
 the delivery of the writ, his goods are bound by it in the hands 
 of his executors. 
 
 If a man agrees with another for goods at a certain price, he 
 may not carry them away before he hath paid for them ; for it is 
 no sale without payment, unless the contrary be expressly agreed. 
 And therefore, if the vendor says, the price of a beast is four 
 pounds, and the vendee says he will give four pounds, the bargain 
 is struck ; and they neither of them are at liberty to be off, pro- 
 vided immediate possession be tendered by the other side. But 
 if neither the money be paid, nor the goods delivered, nor tender 
 
 ' It is also the rule, in a number of the United States, that the goods of 
 the debtor shall be bound from the time of the delivery of the writ of exe- 
 cution to the sheriff, but not so as to render subsequent sales necessarily 
 fraudulent ; the title of any purchaser in good faith after execution issued, 
 but prior to an actual levy upon the property, being protected. Such is the 
 rule in New York. (Bond v. Willei, 31 N. Y. 102; Ray v. Birdseye, S 
 Den. 619; Williams v. Shelly] 37 N. Y. 375.) But. in some States, the 
 goods are not bound until an actual levy. 
 
GRANT, AND CONTRACT. 555 
 
 made, nor any subsequent agreement be entered into, it is no 
 contract, and the owner may dispose of the goods as he pleases. 
 But if any part of the price is paid down, if it be but a penny, or 
 any portion of the goods delivered by way of earnest (which the 
 civil law calls airha, and interprets to be " emptionis- venditionis 
 *contract<B argumentum") the property of the goods is [*448 
 absolutely bound by it ; and the vendee may recover the goods 
 by action, as well as the vendor may the price of them. And 
 such regard does the law pay to earnest as an evidence of a con- 
 tract, that, by the same statute 29 Car. II., ch. 3, no contract 
 for the sale of goods, ta the value of 10/. or more, shall be valid, 
 unless the buyer actually receives part of the goods sold, by way 
 of earnest on his part ; unless he gives part of the price to the 
 vendor by way of earnest to bind the bargain, or in part oi 
 payment ; or unless some note in writing be made and signed by 
 the party, or his agent, who is to be charged with the contract.' 
 And with regard to goods under the value of 10/. no contract or 
 agreement for the sale of them shall be valid, unless the goods 
 are to be delivered within one year, or unless the contract be 
 made in writing, and signed by the party, or his agent, who is to 
 be charged therewith. Anciently, among all the Northern na- 
 tions, shaking of hands was held necessary to bind the bargain ; 
 a custom which we still retain in many verbal contracts. A sale 
 thus made was called handsale, " venditio per mutuain manuum 
 complexionem ;" till in process of time the same word was used to 
 signify the price or earnest, which was given immediately after 
 the shaking of hands, or instead thereof. 
 
 As soon as the bargain is struck, the property of the goods 
 IS transferred to the vendee, and that of the price to the vendor ; 
 
 ' This is known as the Statute of Frauds, and is an act of great impor- 
 tance. It has been substantially reenacted in the respective Americaa 
 States ; but the value of the property sold, which shall be necessary to bring 
 the contract within the terms of the statute, is fixed at different sums in dif- 
 ferent States. In New York and Massachusetts it is $50, in Maine I30, in 
 Vermont $40. But provisions in regard to the sale of goods of less value, simi- 
 lar to that stated in the text in regard to the sale in England of goods under 
 the value of J[^\o, are not usually tound in statutes of frauds in this country. 
 The principles of law which have been established in the interpretation and 
 application of this statute, are much too extensive to admit of even a brief 
 statement here. The student may consult such works as Parsons on Con- 
 tracts, vol. iii. pp. i-6o; Benjamin on Sales; Browne on Statute of Frauds. 
 
556 OF TITLE BY GIFT, 
 
 but the vendee cannot take the goods, until he tenders the price 
 agreed on. But if he tenders the money to the vendor, and he 
 refuses it, the vendee may seize the goods, or have an action 
 against the vendor for detaining them. And by a regular sale, 
 without delivery, the property is so absolutely vested in the ven- 
 dee, that if A. sells a horse to B. for lo/. and B. pays him earnest, 
 or signs a note in writing of the bargain ; and afterwards, before 
 the delivery of the horse, or money paid, the horse dies in the 
 vendor's custody, still he is entitled to the money, because, by 
 •449] the *contract the property was in the vendee.' Thus 
 may property in goods be transferred by sale, where the vendoi- 
 hath such property in himself. 
 
 But property may also in some cases be transferred by sale, 
 though the vendor hath none at all in the goods ; for it is expe- 
 dient that the buyer, by taking proper precautions, may at all 
 
 9 " But in one particular instance, where the act of transfer is not com- 
 pleted, the right of property transferred by the sale to the vendee may be 
 divested by an act of the vendor, this occurring when the vendor exercises 
 that right conferred on him by the Law Merchant, which is termed the right 
 of stoppage in transitu. For where the parties deal on credit, that is, when 
 the contract is in fact for the immediate delivery of the goods, but for the 
 future payment of the money, it may sometimes happen that before the de- 
 livery has been completed, the vendor may discover that the vendee is insol- 
 vent, and that he will consequently be unable to perform his part of the con- 
 tract, when the time arrives for so doing ; and the law, therefore, allows the 
 vendor, if he can, to prevent the goods coming into the possession of the 
 vendee. For, if he has not parted with the goods at all, he may retain thenr; 
 but if they have already been put into the hands of some third party, as a 
 carrier, for delivery, he may give notice to such party, who tliereupou becomes 
 bound to retain them ; and, after notice, should he by mistake deliver them, 
 the vendor may bring an action for them, even against the assignees of the 
 vendee, if he have in the meantime become bankrupt. Nor will partial pay- 
 ment destroy this right ; for the effect of the stoppage in transitu is not to 
 rescind the contract, which cannot be done after part payment ; its operation 
 is to create an equitable lien on the goods, which may be retained' until full 
 payment be made, the vendee or his assigns being then entitled to the goods. 
 This right of stoppage ceases entirely, arid cannot be exercised, when the 
 goods have, come actually or constructively into the hands of the vendee ; as 
 if, after the goods have been sold, they remain in the vendor's warehouse, he 
 receiving warehouse-rent for them. In such a case, the vendor holds the 
 goods as the agent of the vendee, the delivery is considered complete, ana 
 the right of stoppage in transitu is gone." — (Kerr.) (Consult, on this sub- 
 ject, Becker v. Hallgarten, 86 N. Y. 167 ; Harris v. Pratt, 17 N. Y. 249 ; Allin 
 V. Railroad Co., 79 Me. 327 ; also 135 Mass. 442 ; 63 N; H. 565.) 
 
GRANT, AND CONTRACT. SS7 
 
 events be secure of his purchase ; otherwise all commerce be- 
 tween man and man must soon be at an end. And therefore the 
 general rule of law is that all sales and contracts of anything 
 vendible, in fairs or markets overt (that is, open,) shall not only 
 be good between the parties, but also be binding on all those 
 that have any right or property therein.*" And for this purpose, 
 the Mirror informs us, were tolls established in markets, viz., 
 to testify the making of contracts ; for every private contract 
 was discountenanced by law ; insomuch that our Saxon ances- 
 tors prohibited the sale of anything above the value of twenty 
 pence, unless in open market, and directed every bargain and sale 
 to be contracted in the presence of credible witnesses. Market 
 overt in the country is only held on the special days provided 
 for particular towns by charter or prescription ; but in London 
 every day, except Sunday, is market day. The market place, or 
 spot of ground set apart by custom for the sale of particular 
 goods, is also in the country the only market overt ; but in Lon- 
 don every shop in which goods are exposed publicly for sale, is 
 market overt, for such things only as the owner professes to 
 trade in. But if my goods are stolen from me, and sold, out of 
 market overt, my property is not altered, and I may take them 
 wherever I find them." And it is expressly provided by statute, 
 
 '" The doctrine of the English law, in regard to sales in market overt, 
 has no application in this country. 
 
 " It is a fundamental rule of the common-law, that an owner cannot be 
 deprived of his title to property against his will. If, therefore, he be wrong- 
 fully dispossessed of his goods, the wrong-doer will acquire no valid title, and 
 can convey none even to an honest purchaser ; for no one can convey a better 
 title to property than he himself possesses. The owner may therefore retake his 
 property wherever he can find it, if he can do so without causing a breach of 
 the peace, or he may bring action for its recovery, or to obtain re-imburse- 
 ment for its loss. A purchaser, therefore, is not protected, though he acquire 
 the property for a fair and valuable consideration, in the usual course of trade, 
 without notice of any conflicting claim, or of suspicious circumstances calcu- 
 lated to put him upon his guard. (Soltau v. Gerdau, 1 19 N. Y. 380 ; see 64 Cal. 
 388; loi Mass. 344; 12 Gray, 141; 58 IVId. 502.) But there are important ex- 
 ceptions to this general doctrine. Thus cash, bank-bills, and negotiable paper 
 may be transferred by one having no title (as a thief), so as to convey a valid 
 title to an honest purchaser in good faith. Moreover, if a person induce a 
 sale of goods to himself by the owner by fraudulent misrepresentations, it is 
 held that, though his own title is defeasible by reason of the fraud, he may, 
 nevertheless, convey a valid title to a purchaser in good faith, without knowl- 
 edge of defect of title. The owner, in such a case, is deemed to confer upon 
 
558 OF TITLE BY GIFT, 
 
 I Jac. I., ch. 21, that the sale of any goods wrongfully taken, to any 
 pawnbroker in London, or within two miles thereof, shall not 
 alter the property, for this, being usually a clandestine trade, is 
 therefore made an exception to the general rule. And even in 
 market overt, if the goods be the property of the king, such sale 
 *450] (though regular in all other respects), * will in no case 
 bind him ; though it binds infants, feme-coverts, idiots and luna- 
 tics, and men beyond sea or in prison : or if the goods be stolen 
 from a common person, and then taken by the king's officer from 
 the felon, and sold in open market ; still, if the owner has used 
 due diligence in prosecuting the thief to conviction, he loses not 
 his property in the goods. So likewise, if the buyer knoweth 
 the property not to be in the seller ; or there be any other fraud 
 in the transaction ; if he knoweth the seller to be an infant, or 
 feme-covert not usually trading for herself ; if the sale be not 
 originally and wholly made in the fair or market, or not at the 
 usual hours ; the owner's property is not bound thereby. If a 
 man buys his own goods in a fair or market, the contract of sale 
 shall not bind him, so that he shall render the price ; unless the 
 property had been previously altered by a former sale. And 
 notwithstanding any number of intervening sales, if the original 
 vendor, who sold without having the property, comes again into 
 possession of the goods, the original owner may take them, when 
 found in his hands who was guilty of the first breach of justice. 
 By which wise regulations the common law has secured 
 the right of the proprietor in personal chattels from being 
 divested, so far as was consistent with that other necessary 
 policy, that purchasers, bona fide, in a fair, open, and regular 
 manner, shall not be afterwards put to difficulties by reason of 
 the previous knavery of the seller. 
 
 But there is one species of personal chattels, in which 
 property is not easily altered by sale, without the express con- 
 sent of the owner ; and those are horses. For a purchaser gains 
 
 the vendor the indicia of ownership and apparent power of disposal, since 
 the property was taken from him not against liis will, but by his consent, though 
 this consent was fraudulently obtained ; and, therefore, the claims of the 
 honest purchaser to the property are considered as superior to his own, and 
 his only remedy is against the person guilty of the fraud. But if goods be 
 obtained by fraudulent pretences without a sale, the rule is different. {Col- 
 lins V. Ralli, 20 Hun, 246, 85 N. Y. 637 ; see 117 Mass. 23 ; 79 N. Y. 254; 
 105 Ind. 81 ; 92 Pa. St. 379 ; 37 O. St. 356.) 
 
GRANT, AND CONTRACT. 559 
 
 no property in a horse that has been stolen, unless it be bought 
 in a fair or market overt, according to the direction of the stat- 
 utes, 2 P. & M., ch. 7, and 31 Eliz., ch. 12. By which it is enacted 
 that the horse shall be openly exposed, in the time of such fair 
 or market, for one whole hour together, between ten in the morn 
 :ng and sunset, in the public place used for such sales, and nol 
 in any private yard or stable ; and afterwards brought by both 
 the vendor and vendee to the book-keeper of such fair or market ; 
 that toll be paid, if any * be due ; and if not, one penny [*451 
 to the book-keeper, who shall enter down the price, color and 
 marks of the horse, with the names, additions and abode of the 
 vendee and vendor ; the latter being properly attested. Nor 
 shall such sjle take away the property of the owner, if within 
 six months after the horse is stolen he puts in his claim be- 
 fore some magistrate, where the horse shall be found ; and with- 
 in forty days more, proves such his property by the oath of two 
 witnesses, and tenders to the person in possession such price as 
 he bona fide paid for him in market overt. But in case any one 
 of the points before-mentioned be not observed, such sale is ut- 
 terly void ; and the owner shall not lose his property, but at any 
 distance of time may seize or bring an action for his horse, wher- 
 ever he happens to find him. 
 
 By the civil law an implied warranty was annexed to every 
 sale, in respect to the title of the vendor ; and so, too, in our law, 
 a purchaser of goods and chattels may have a satisfaction from 
 the seller, if he sells them as his own, and the title proves defi- 
 cient, without any express warranty for that purpose. But with 
 regard to the goodness of the wares so purchased, the vendor is 
 not bound to answer : unless he expressly warrants them to be 
 sound and good, or unless he knew them to be otherwise, and 
 hath used any art to disguise them, or unless they turn out to be 
 different from what he represented them to the buyer.^'' 
 
 '^ It is also the general rule in the United States, that, upon the sale of 
 personal property by a vendor in possession, a warranty of title is im- 
 plied. (91 N. Y. 193 ; 66 Wis. 124; 104 Mass. 42 ; 52 Me. 202.) But the 
 present English rule is more narrow and restricted ; and no warranty is gen- 
 erally implied, except in the case of a sale of goods in a shop, in the ordinary 
 course of business. 
 
 But with regard to the quality of goods sold, the rule of the common- 
 law is different. There is no implied warranty of quality, the maxim being 
 caveat emptor, let the purchaser be on his guard. But this general principle 
 
55o OF TITLE BY GIFT, 
 
 2 . Bailment, from the French bailler, to deUver, is a delivery 
 of goods in trust, upon a contract expressed or implied, that the 
 trust shall be faithfully executed on the part of the bailee. As 
 
 's subject to important qualifications, which have been well stated in the fol- 
 lowing propositions. (See Jones v. Just, L. R. 3 Q. B. 202.) 
 
 1 . Where goods are in esse, and may be inspected by the buyer, and there 
 is no fraud on the part of the seller, the maxim caveat emptor applies; the 
 purchaser takes them at his risk, even though the defect which exists in them 
 is latent, and not discoverable on examination, — at least, where the seller is 
 neither the grower nor the manufacturer. The buyer, in such a case, has the 
 opportunity of exercising his judgment upon the matter ; and if the result of his 
 inspection be unsatisfactory, or if he distrust his own judgment, he may, if he 
 chooses, require an express warranty. In such a case, it is not an implied term 
 of the contract of sale, that the goods are of any particular quality, or are mer- 
 chantable. (^Parkinson v. Lee, 2 East, 314.) [See 10 Wall. 383 ; 5 N. Y. 73. 
 But some American courts hold it to be the duty of a vendor to disclose a 
 purely latent defect of which he knows. (49 Yt. 297 ; 94 Mo. 423 ; 102 Mass. 
 132 ; ^^ Me. 457 ; 89 111. 598 ; jB Wis. 282.)] 
 
 2. Where there is a sale of a definite existing chattel, specifically described, 
 the actual condition of which is capable of being ascertained by either party, 
 there is no implied warranty as to quality. {Barr v. Gibson, 3 M . & W. 390.) 
 [See 57 Md. 155; 126 Mass. 10; 34N. Y. 118; 127 111. 457.] 
 
 3. Where a known, described, and defined article is ordered of a manu- 
 facturer, although stated to be required by the purchaser for a particular 
 jiurpose, still if the known, described, and defined thing be actually supplied, 
 there is no warranty that it shall answer the particular purpose intended by 
 the buyer. {Chanter v. Hopkins, 4 M. & W. 399 ; Ollivant v. Bayley, 5 
 Q. B. 288.) [134 U. S. 306; 68 Pa. St. 149; 64 N. Y. 411; 58Md. 59; 48 
 Vt. 83.] 
 
 4. Where a manufacturer or a dealer contracts to supply an article which 
 he manufactures or produces, or in which he deals, to be applied to a particu- 
 lar purpose, so that the buyer necessarily trusts to the judgment or skill of the 
 manufacturer or dealer, a warranty is inferred that the said article shall be 
 reasonably fit for the purpose to which it is to be applied. In such a case, 
 the buyer trusts to the manufacturer or dealer, and relies upon his judgment. 
 {Brown v. Edgington, 2 M. & Gr. 279; Jones v. Bright, 5 Bing. 533.) 
 [120 U. S. 630; 71 N. Y. 1 18; 95 Ind. 387; 51 Vt. 480; 77 Me. 457; 58 
 Vt. 543.] 
 
 5. Where a manufacturer undertakes to supply goods manufactured by him- 
 self, or in which he deals, but which the vendee has not had an opportunity of 
 inspecting, it is an implied term in the contract that a merchantable article 
 shall be supplied. {Laing v. Fidgeon, 4 Camp. 169; Shepherd v. Pybiis, 3 
 M.&Gr. 868.) [12 App. Cas. 284; 53 N. Y. 515 ; 139 Ma.ss. 318; 60 Mich. 
 397 ; 29 W. Va. 244; 39 Wis. 578 ; 50 Hun, 516.] 
 
 [6. When provisions are sold by dealers for domestic use, there is, by some 
 authorities, an implied warranty that they are sound and wholesome ; but not 
 when they are sold to dealers as merchandise. (12 Johns. 468 ; 50 Barb. 116; 
 15 Hun, 504; 5 Den. 617; 9 Daly, 469; 145 Mass. 320; 21 Minn. 70; 57 
 Mich. 60 ; cf. 73 Mich. 541.) The first branch of this rule has, however, been 
 chiefly applied in cases where the vendor knew and concealed the unsound- 
 ness. (Id.) 
 
 7. Another class of cases, is that of goods bought by sample. Here it is 
 implied that the quality of the bulk of the commodity shall be equal to that of 
 the sample. (10 Wall. 383 ; 5 N. Y. 73 & 95 ; Tt, la. 712 ; 7 Allen, 29 ; 32 Conn. 
 
GRANT, AND CONTRACT. 561 
 
 If cloth be delivered, or (in our legal dialect) bailed, to a tailor to 
 make a suit of clothes, he has it upon an implied contract 
 to render it again when made, and that in a workmanly manner. 
 If money or goods be delivered to a common carrier, to convey 
 from Oxford to London, he is under a contract in law to pay, or 
 carry them, to the person appointed. If a horse, or other goods, 
 be delivered to an innkeeper or his servants, he is bound to keep 
 *them safely, and restore them when his guest leaves the [*452 
 house. If a man takes in a horse, or other cattle, to graze and 
 depasture in his grounds, which the law calls agistment, he takes 
 them upon an implied contract to return them on demand to the 
 owner. If a pawnbroker receives plate or jewels as a pledge, or 
 security, for the repayment of money lent thereon at a day cer- 
 tain, he has them upon an express contract or condition to 
 restore them, if the pledgor performs his part by redeeming them 
 in due time : for the due execution of which contract many useful 
 regulations are made by statute 30 Geo. II., ch. 24. And so if a 
 landlord distrains goods for rent, or a parish officer for taxes, 
 these for a time are only a pledge in the hands of the distrainors, 
 and they are bound by an implied contract in law to restore thei^ 
 on payment of the debt, duty, and expenses, before the time of sale : 
 or, when sold, to render back the overplus. If a friend delivers 
 anything to his friend to keep for him, the receivei "s bound to 
 restore it on demand ; and it was ^rmerly held that in tiic n:e3n 
 time he was answerable for any damage or loss it might sustain, 
 whether by accident or otherwise ; unless he expressly undertook 
 to keep it only with the same care as his own goods, and then he 
 should not be answerable for theft or other accidents. But now 
 the law seems to be settled that such a general bailment will not 
 charge the bailee with any loss, unless it happens by gross neg- 
 lect, which is an evidence of fraud : but, if he undertakes specially 
 to keep the goods safely and securely, he is bound to take the 
 same care^of them, as a prudent man would take of his own.^''' 
 
 148.) An executory contract may also be made to furnish goods equal to a 
 sample. (12 App. Cas. 284; 58 N. Y. 358.) An implied warranty of mer- 
 chantability or quality may hold good, though the goods supplied are equal to 
 the sample exhibited. (12 App. Cas. 284; 149 Mass. 570.) 
 
 8. A sale of goods by a particular description imports a warranty that they 
 are of that description. (149 Mass. 570 ; 71 N. Y. 1 18 ; 13 C. B. (N. S.) 447.)] 
 'The various forms of bailments are divisible into five classes : — 
 !■ Depositum or deposit, where goods are delivered to the bailee to be 
 36 
 
562 OF TITLE BY GIFT, 
 
 In all these instances there is a special qualified property 
 transferred from the bailor to the bailee, together with the pos- 
 *453] session. It is not an absolute property, because of his *con- 
 
 kept, and returned on demand, without recompense ; as, where valuables are 
 deposited with a friend for safe-keeping. 
 
 2. Mandatum, or mandate, where the bailee or mandatary agrees to do 
 something with or about the thing bailed, without recompense ; as, where one 
 gratuitously undertakes to deliver a letter for another, or carry goods to 3 
 certain place, or pay over money which he has received from the bailor. 
 
 3. Cotnmodatum, or loan, where the thing bailed is lent for the bailee's 
 use, without pay, and is to be itself returned. 
 
 4. Pignus, or pledge, where the thing bailed is given as security for a 
 debt ; as, where a person borrows money, and gives some article of value to 
 be held as security. 
 
 5. Locatio, or hiring for a recompense. This is of three kinds : (a) locatio 
 ret, the hiring of a thing, as where a person hires a horse for temporary 
 use ; — (b) locatio operis faciendi, the hiring of the performance of work or 
 labor, care or attention, upon the property delivered to the bailee ; as where 
 cloth is delivered to a tailor to be made into a coat ; — {c) locatio operis niercium 
 vehendarum, the hiring of the carriage of goods from one place to another ; 
 as where goods are delivered to a railway or stage company for trans- 
 portation to a particular destination. 
 
 When the bailment is exclusively for the bailor's benefit, the bailee is 
 held responsible only for the exercise of slight care, and is answerable only 
 for gross negligence ; this rule applies to deposits and mandates. When it 
 is wholly for the bailee's benefit, as in commodatum, he is bound to exercise 
 the greatest care, and is responsible for even slight negligence. But when 
 the bailment is for the benefit of bsth bailor and bailee, the bailee is only re- 
 quired to use ordinary care, and is only liable for ordinary negligence. This 
 rule applies to such forms of bailment 7& pignus and locatio j for the bailet 
 obtains the goods for security or use, while the bailor receives a recom- 
 pense. But there are certain kinds of bailment, included within the class 
 locatio, to which this rule does not extend. Inn-keepers and common car- 
 riers of goods are held at common-law to be insurers of the goods entrusted 
 to them ; responsible for all losses or injuries occasioned by any cause, other 
 than the act of God or the public enemy, or the fraud or negligence of the 
 bailor himself, or his servants. They are, therefore, ordinarily liable in case 
 of loss, irrespective of their care or negligence. But this onerous respon- 
 sibility of inn-keepers has been, in modern times, generally limited or qualified 
 by statute ; while common carriers usually limit their extreme liability by con- 
 tract with the shipper of goods, which, when reasonable in its provisions for 
 exemption from responsibility, is sustained by the courts. But there is some 
 difference of doctrine among tlie States of this country as to what contracts 
 of this nature shall be upheld. Thus, in some States, it is deemed un- 
 reasonable to allow the carrier to stipulate for exemption from responsibility, 
 in case of loss occasioned by his negligence; while, in others, such con- 
 tracts are held valid. The former is the prevailing doctrine, but the latter is 
 
GkANT, AND CONTRACT. 563 
 
 tmct for restitution ; tlie bailor having still left in him the right, 
 to a chose in action, grounded upon such contract. And, on 
 account of this qualified property of the bailee, he may (as wel). 
 as the bailor) maintain an action against such as injure or take 
 away these chattels. The tailor, the carrier, the innkeeper, the> 
 agisting farmer, the pawnbroker, the distrainor, and the general 
 bailee, may all of them vindicate, in their own right, this their 
 possessory interest, against any stranger or third person. For, 
 being responsible to the bailor, or if the goods are lost or dam- 
 aged by his wilful default or gross negligence, or if he do not 
 deliver up the chattels on lawful demand, it is therefore reason- 
 able that he should have a right of action against all other persons 
 who may have purloined or injured them ; that he may always 
 be ready to answer the call of the bailor. 
 
 3. Hiring and borrowing are also contracts by which a quali- 
 fied property may be transferred to the hirer or borrower : in 
 which there is only this difference, that hiring is always for a 
 price, or stipend, or additional recompense ; borrowing is merely 
 gratuitous. But the law in both cases is the same. They are 
 both contracts, whereby the possession and a transient property 
 is transferred for a particular time or use, on condition to restore 
 th ; goods so hired or borrowed, as soon as the time is expired or 
 use performed ; together with the price or stipend (in case of 
 hiring) either expressly agreed on by the parties, or left to be 
 implied by law according to the value of the service. By this 
 mutual contract, the hirer or borrower gains a temporary prop- 
 erty in the thing hired, accompanied with an implied condition 
 to use it with moderation, and not to abuse it ; and the owner or 
 lender retains a reversionary interest in the same, and acquires a 
 new property in the price or reward. Thus if a man hires or 
 borrows a horse for a month, he has the possession and a quali- 
 fied property therein during that period ; on the expiration 
 of which his qualified property determines, and the owner be- 
 comes (in case of hiring) entitled also to the price for which the 
 horse was hired. 
 
 *There is one species of this price or reward, the most [*454 
 
 established in New York. Carriers of passengers are not considered as in- 
 surers of the passengers' safety ; but are bound to use the utmost care 
 and precaution to prevent injury, and are responsible for even slight negli- 
 gence, if damage results therefrom. (See, generally, Schouler on Bailments.) 
 
564 OF TITLE BY GIFT, ' 
 
 usual of any, but concerning which many good and learned men 
 have in former times very much perplexed themselves and othei 
 people, by raising doubts about its legality in foro conscientite. 
 That is when money is lent on a contract to receive not only the 
 principal sum again, but also an increase by way of compensation 
 for the use ; which generally is called interesthy those who think 
 it lawful, and usury by those who do not so. For the enemies to 
 interest in general make no distinction between that and usury, 
 holding any increase of money to be indefensibly usurious. And 
 this they ground as well on the prohibition of it by the law of 
 Moses among the Jews, as also upon what is said to be laid down 
 by Aristotle, that money is naturally barren, and to make it breed 
 money is preposterous and a perversion of the end of its institu- 
 tion, which was only to serve the purposes of exchange and not 
 of increase. Hence the school divines have branded the prac- 
 tice of taking interest, as being contrary to the Divine law both 
 natural and revealed ; and the canon law has prescribed the taking 
 any, the least, increase for the loan of money as a mortal sin. 
 
 But, in answer to this', it hath been observed, that the 
 Mosaical precept was clearly a political, and not a moral precept. 
 It only prohibited the Jews from taking usury from their 
 brethren the Jews ; but in express words permitted them to take 
 it of a stranger : which proves that the taking of moderate usur)-, 
 or a reward for the use, for so the word signifies, is not malum in 
 se ; since it was allowed where any but an Israelite was con- 
 cerned. And as to the reason supposed to be given by Aristotle 
 and deduced from the natural barrenness of money, the same may 
 with equal force be alleged of houses, which never breed houses ; 
 and twenty other things, which nobody doubts it is lawful to 
 make profit of, by letting them to hire. And, though money 
 was originally used only for the purposes of exchange, yet the 
 *455] laws of any state *may be well justified in permitting it to 
 be turned to the purposes of profit, if the convenience of society 
 (the great end for which money was invented) shall require it. 
 And that the allowance of moderate interest tends greatly to the 
 benefit of the public, especially in a trading country, will appear 
 from that generally acknowledged principle, that commerce cannot 
 subsist without mutual and extensive credit. Unless money 
 therefore can be borrowed, trade cannot be carried on ; and if 
 no premium were allowed for the hire of money, few persons 
 
GRANT, AND CONTRACT. 565 
 
 would care to lend it ; or at least the ease of borrowing at a short 
 warning (which is the life of commerce) would be entirely at an 
 end. Thus, in the dark ages of monkish superstition and civil 
 tyranny, when interest was laid under a total interdict, commerce 
 was also at its lowest ebb, and fell entirely into the hands of the 
 Jews and Lombards : but when men's minds began to be more 
 enlarged, when true religion and real liberty revived, commerce 
 grew again into credit : and again introduced with itself its 
 inseparable companion, the doctrine of loans upon interest. And 
 IS to any scruples of conscience, since all other conveniences 
 9f life may either be bought or hired, but money can only be 
 hired, there seems to be no greater oppression in taking a recom- 
 pense or price for the hire of this, than of any other convenience. 
 To demand an exorbitant price is equally contrary to conscience, 
 for the loan of a horse, or the loan of a sum of money : but a 
 reasonable equivalent for the temporary inconvenience, which 
 the owner may feel by the want of it, and for the hazard of his 
 losing it entirely, is not more immoral in one case than it is in 
 the other. Indeed the absolute prohibition of lending upon any, 
 even moderate interest, introduces the very inconvenience which 
 it seems meant to remedy. The necessity of individuals will 
 make borrowing unavoidable. Without some profit allowed by 
 law, there will be but few lenders ; and those principally bad 
 men, who will break through the law, and take a profit ; and 
 then will endeavor to indemnify themselves from the danger 
 of the penalty, by making that profit exorbitant. A capital 
 •distinction must therefore be made between a moderate [*456 
 and exorbitant profit ; to the former of which we usually give 
 the name of interest, to the latter the truly odious appellation of 
 usury : the former is necessary in every civil state, if it were but 
 to exclude the latter, which ought never to be tolerated in any 
 well regulated society. For as the whole of this matter is well 
 summed up by Grotius : " If the compensation allowed by law does 
 not exceed the proportion of the hazard run, or the want felt, by 
 the loan, its allowance is neither repugnant to the revealed nor 
 the natural law : but if it exceeds those bounds, it is then oppres- 
 sive usury ; and though the municipal laws may give it impunity, 
 they can never make it just." 
 
 We see that the exorbitance or moderation of interest, foi 
 flioney lent, depends upon two circumstances ; the inconvenience 
 
566 OF TITLE BY GIFT, 
 
 of parting with it for the present, and the hazard of losing it 
 entirely. The inconvenience to individual lenders can never ba 
 estimated by laws ; the rate therefore of general interest must 
 depend upon the usual or general inconvenience. This results 
 entirely from the quantity of specie or current money in the 
 kingdom ; for the more specie there is circulating in any nation, 
 the greater superfluity there will be, beyond what is necessary 
 to carry on the business of exchange and the common concerns 
 of Ufe. In every nation or public community, there is a certain 
 quantity of money thus necessary ; which a person well skilled 
 in political arithmetic might perhaps calculate as exactly, as a 
 private banker can the demand for running cash in his own shop ; 
 all above this necessary quantity may be spared, or lent, without 
 much inconvenience to the respective lenders ; and the greater 
 this national superfluity is, the more numerous will be the lenders, 
 and the lower ought the rate of the national interest to be ; but 
 where there is not enough circulating cash, or barely enough, to 
 answer the ordinary uses of the public, interest will be proper- 
 tionably high ; for lenders will be but few, as few can submit to 
 the inconvenience of lending. 
 
 *457] * So also the hazard of an entire loss has its weight in 
 the regulation of interest : hence the better the security, the 
 lower will the interest be ; the rate of interest being generally 
 in a compound ratio, formed out of the inconveriience, and the 
 hazard. And as, if there were no inconvenience, there should 
 be no interest but what is eq livalent to the hazard, so, if there 
 were no hazard there ought to be no interest, save only what 
 arises from the mere inconvenience of lending. Thus, if the 
 quantity of specie in a nation be such, that the general incon- 
 venience of lending for a year is computed to amount to three 
 per cent., a man that has money by him will perhaps lend it 
 upon a good personal security at jive per cent., allowing two for 
 the hazard run ; he will lend it upon landed security or mortgage 
 at four per cent., the hazard being proportionably less ; but he 
 will lend it to the state, on the maintenance of which all his 
 property depends, at three per cent., the hazard being none at all. 
 But sometimes the hazard may be greater than the rate of 
 interest allowed by law will compensate. And this gives rise 
 to the practice of, i, Bottomry, or respondentia. 2. Policies of 
 insu-ance. 3. Annuities upon lives. 
 
GRANT, AND CONTRACT. 56; 
 
 And first, bottomry (which originally arose from permitting 
 the master of a ship, in a foreign country, to hypothecate the 
 ship in order to raise money to refit) is in the nature of a mort- 
 gage of a ship ; when the owner takes up money to enable him 
 to carry on his voyage, and pledges the keel or bottom of the ship 
 {partem pro toto) as a security for the repayment. In which case 
 it i$ understood, that if the ship be lost, the lender loses also his 
 whole money ; but, if it returns in safety, then he shall receive 
 back his principal, and also the premium or interest agreed upon, 
 however it may exceed the legal rate of interest. And this is 
 allowed to be a valid contract in all trading *nations, for [*458 
 the benefit of commerce, and by reason of the extraordinary 
 hazard run by the lender. And in this case the ship and tackle, 
 if brought home, are answerable (as well as the person of the 
 borrower) for the money lent. But if the loan is not upon the 
 vessel, but upon the goods and merchandise, which must neces- 
 sarily be sold or exchanged in the course of the voyage, then 
 only the borrower, personally, is bound to answer the contract ; 
 who therefore in this case is said to take up money at responden- 
 tia. These terms are also applied to contracts for the repayment 
 of money borrowed, not on the ship and goods only, but on the 
 mere hazard of the voyage itself ; when a man lends a merchant 
 1000/. to be employed in a beneficial trade, with condition to be 
 repaid with extraordinary interest, in case such a voyage be safely 
 performed : which kind of agreement is sometimes called foenus 
 nauticum, and sometimes usura maritima. But as this gave an 
 opening for usurious and gaming contracts, especially upon long 
 voyages, it was enacted by the statute 19 Geo. II., ch. 37, that 
 all monies lent on bottomry or at respondentia, on vessels bound 
 to or from the East Indies, shall be expressly lent only upon the 
 ship or upon the merchandise ; that the lender shall have the 
 benefit of salvage ; and that if the borrower hath not an interest 
 in the ship, or in the effects on board, equal to tha value of the 
 sum borrowed, he shall be responsible to the lender for so much 
 of the principal as hath not been laid out, with legal interest and 
 all other charges, though the ship and merchandise be totally 
 lost. 
 
 Secondly, a policy of insurance is a contract between A. and 
 B., that upon A.'s paying a premium equivalent to the hazard 
 fun, B will indemnify or insure him against a particular event 
 
568 OF TITLE BY GIFT, 
 
 This is founded upon one of the same principles as the do trint 
 of interest upon loans, tha.t of hazard ; but not that of inconven- 
 ience. For if I insure a ship to the Levant, and back again, at 
 five per cent., here I calculate the chance that she performs iier 
 voyage to be twrenty to one against her being lost ; and, if she 
 be lost, I lose lOO/. and get 5/. Now this is much the same as 
 if I lend the merchant, v^hose whole fortunes are embarked in 
 •459] this vessel, 100/. at *the rate of eight per cent. For by a 
 loan I should be immediately out of possession of my money, 
 the inconvenience of which we have supposed equal to three per 
 cent.; if therefore I had actually lent him 100/., I must have 
 added 3/. on the score of inconvenience, to the 5/. allowed for the 
 hazard, which together would have made 8/. But, as upon an 
 insurance, I am never out of possession of my money till the 
 loss actually happens, nothing is therein allowed upon the prin- 
 ciple of inconvenience, but all upon the principle of hazard. 
 Thus, too, in a loan, if the chance of repayment depends upon 
 the borrower's life, it is frequent (besides the usual rate of inter- 
 est) for the borrower to have his life insured till the time of pay- 
 ment ; for which he is loaded with an additional premium, suited 
 to his age and constitution. Thus, if Sempronius has only an 
 annuity for his life, and would borrow 100/. of Titius for a year; 
 the inconvenience and general hazard of this loan, we have seen 
 are equivalent to 5/., which is therefore the legal interest; but 
 iherc is also a special hazard in this case ; for, if Sempronius 
 dies within the year, Titius must lose the whole of his 100/. 
 Suppose this chance to be as one to ten : it will follow that the 
 extraordinary hazard is worth 10/. more, and therefore that the 
 reasonable rate of interest in this case would be fifteen per cent. 
 But this the law, to avoid abuses, will not permit to be taken ; 
 Sempronius therefore gives Titius the lender only 5/., the legal 
 interest ; but applies to Gaius an insurer, and gives him the other 
 10/. to indemnify Titius against the extraordinary hazard. And 
 In this manner may any extraordinary or particular hazard be 
 provided against, which the established rate of interest will not 
 reach ; that being calculated by the state to answer only the ordi- 
 nary and general hazard, together with the lender's inconvenience 
 in parting with his specie for the time. But in order to prevent 
 these insurances from being turned into a mischievous kind of 
 gaming, it is enacted by statute 14 Geo. III., ch. 48, that no in- 
 
GRANT, AND CONTRACT. 569 
 
 surance shall be made on lives, or on any other event, wherein 
 the party insured hath no interest ; that in all policies the name 
 of such interested party shall be *inserted ; and nothing [*460 
 raore shall be recovered thereon than the amount of the interest 
 of the insured. 
 
 This does not, however, extend to marine insurances, which 
 were provided for by a prior law of their own. The learning re- 
 lating to these insurances hath of late years been greatly improved 
 by a series of judicial decisions : which have now established 
 the law in such a variety of cases, that (if well and judiciously 
 collected) they would ^orm a very complete title in a code of 
 commercial jurisprudence : but, being founded on equitable prin- 
 ciples, which chiefly result from the special circumstances of the 
 case, it is not easy to reduce them to any general heads in mere 
 elementary institutes." Thus much, however, may be said ; that 
 being contracts, the very essence of which consists in observing 
 the purest good faith and integrity, they are vacated by any the 
 least shadow of fraud or undue concealment ; and, on the other 
 hand, being much for the benefit and extension of trade, by dis- 
 tributing the loss or gain among a number of adventurers, they 
 are greatly encouraged and protected both by common law and 
 acts of parliament. But as a practice had obtained of insuring 
 large sums without having any property on board, which were 
 called insurances, interest or no interest, and also of insuring the 
 same goods several times over ; both of which were a species of 
 gaming without any advantage to commerce, and were denom- 
 inated wagering policies : it is therefore enacted by the stat. 19 
 Geo. II,, ch. 37, that all insurance, interest or no interest, or with- 
 out farther proof of interest than the policy itself, or by way of 
 gaming or wagering, or without benefit of salvage to the insurer 
 (all of which had the s^me pernicious tendency), shall be totally 
 
 " Besides marine insurance, referred to in the text, reference may be 
 made to fire insurance and life insurance, which are also topics of much con- 
 sequence under this general subject. A contract of fire insurance stipulates 
 for indemnity or reimbursement, in case of loss by fire; while a contract of 
 life insurance stipulates for the payment of a certain sum of money to the 
 fepresentatives of the assured, in the event of his death. Life insurance is 
 frequently resorted to as a means of securing a provision for a man's relatives, 
 in case of his unexpected or premature death. But this subject is too exten-' 
 sive to be here considered at length. It is fully treated in Parsons on Con- 
 tracts, vol. ii. pp. 350-488. (See also May on Insurance; Bliss on Life 
 Insurance.) 
 
570 OF TITLE BY GIFT, 
 
 null and void, except upon privateers, or upon ships or merchan- 
 dise from the Spanish and Portuguese dominions, for reasons 
 sufficiently obvious ; and that no re-assurance shall be lawful, 
 except the former insurer shall be insolvent, a bankrupt, or dead : 
 and lastly, that, in the East India trade, the lender of money on 
 bottomry, or at respondentia, shall alone have a right to be in- 
 461] sured for the money lent, and the borrower *shall (in case 
 of a loss) recover no more upon any insurance than the surplus 
 of his property, above the value of his bottomry, or respondentia 
 bond. 
 
 Thirdly, the practice of purchasing annuities for lives at a 
 certain price or premium, instead of advancing the same sum on 
 an ordinary loan arises usually from the inability of the borrower 
 to give the lender a permanent security for the return of the 
 money borrowed, at any one period of time. He therefore stipu- 
 lates (in effect) to repay annually, during his life, some part of 
 the money borrowed ; together with legal interest for so much of 
 the principal as annually remains unpaid, and an additional com- 
 pensation for the extraordinary hazard run, of losing that princi- 
 pal entirely by the contingency of the borrower's death : all which 
 consid :;rations, being calculated and blended together, will con- 
 stitute the just proportion or quantum of the annuity which 
 ought to be granted. The real value of that contingency must 
 depend on the age, constitution, situation, and conduct of the 
 borrower ; and therefore the price of such annuities cannot, with- 
 out the utmost difficulty, be reduced to any general rules. So 
 that if, by the terms of the contract, the lender's principal is 
 bona fide (and not colorably) put in jeopardy ; no inequality of 
 price will make it a usurious bargain ; though, under some cir- 
 cumstances of imposition, it may be relieved against in equity. 
 To throw however some check upon improvident transactions of 
 this kind, which are usually carried on with great privacy, the 
 statute 17 Geo. III., ch. 26, has directed, that upon the sale of 
 \ny life annuity of more than the value of ten Tpounds per annum 
 (vnless on a sufficient pledge of lands in fee-simple or stock in 
 the public funds) the true consideration, which shall be in money 
 only, shall be set forth and described in the security itself ; and 
 a memorial of the date of the security of the names of the par- 
 ties, cestui que trusts, cestui que vies, and witnesses, and of the 
 consideration money, shall within twenty days after its execution 
 
GRANT, AND CONTRACT. 571 
 
 be enrolled in the court of chancery ; else the security shall be 
 null and void ; and, in case of collusive practices respecting the 
 consideration, the *court, in which any action is brought or[*462 
 judgment obtained upon such collusive security, may order the 
 same to be cancelled, and the judgment (if any) to be vacated: 
 and also all contracts for the purchase of annuities from infants 
 shall remain utterly void, and be incapable of confirmation after 
 such infants arrive to the age of maturity. But to return to the 
 doctrine of common interest on loans : — 
 
 Upon the two principles of inconvenience and hazard, com- 
 pared together, different nations have, at different times, estab- 
 lished different rates of interest. The Romans at one time 
 ■i&sytitA centesimce, one per cent, monthly, or twelve per cent, per 
 annum, to be taken for common loans ; but Justinian reduced it 
 to trientes, or one third of the as, or centesimce, that is, /our per 
 cent. ; but allowed higher interest to be taken of merchants, be- 
 cause there the hazard was greater. So too Grotius informs us 
 that in Holland the rate of interest was then eight per *cent. [*463 
 in common loans, but twelve to merchants. And Lord Bacon 
 was desirous of introducing a similar policy in England : but our 
 law establishes one standard for all alike, where the pledge of 
 security itself is not put in jeopardy ; lest, under the general pre- 
 tense of vague and indeterminate hazard, a door should be opened 
 to fraud and usury : leaving specific hazards to be provided 
 against by specific insurances, by annuities for lives, or by loans 
 upon respondentia, or bottomry. But as to the rate of legal in- 
 terest, it has varied and decreased for two hundred years past, 
 according as the quantity of specie in the kingdom has increased 
 by accessions of trade, the introduction of paper credit, and 
 other circumstances. The statute 37 Hen. VIII., ch. 9, confined 
 interest to ten /^r t^«A, and so did the statute 13 Eliz., ch. 8. But 
 as through the encouragements given in her reign to commerce, 
 the nation grew more wealthy, so under her successor the statute 
 21 Jac. I., ch. 17, reduced it to eight per cent. ; as did the statute 
 12 Car. II., ch. 13, to six : andlastly by the statute 12 Ann., st. 2, 
 ch. 16, it was brought down to fiv&per cent, yearly, which is now 
 the extremity of legal interest that can be taken. But yet, if a 
 contract which carries interest be made in a foreign country, our 
 courts will direct the payment of interest according to the law 
 of that country in which the contract was made. Thus, Irish. 
 
572 OF TITLE BY GIFT, 
 
 *464] American, Turkish, and Indian interest, have *been allow- 
 ed in our courts to the amount of even twelve per cent. : for the 
 moderation or exorbitance of interest depends upon local cir- 
 cumstances ; and the refusal to enforce such contracts would put 
 a stop to all foreign trade. And, by statute 14 Geo. III., ch. 79, 
 all mortgages and other securities upon estates or other property 
 in Ireland or the plantations, bearing interest not exceeding six 
 per cent., shall be legal ; though executed in the kingdom of Great 
 Britain ; unless the money lent shall be known at. the time to 
 exceed the value of the thing in pledge ; in which case, also, to 
 prevent usurious contracts at home under color of such for- 
 eign securities, the borrower shall forfeit treble the sum so bor- 
 rowed." 
 
 4. The last general species of contracts, which I have to 
 mention, is that of debt; whereby a chose in action, or right to a 
 certain sum of money, is mutually acquired and lost. This may 
 be the counterpart of, and arise from any of the other species of 
 contracts. As, in case of a sale, where the price is not paid in 
 ready money, the vendee becomes indebted to the vendor for 
 the sum agreed on ; and the vendor has a property in this price, 
 as a chose in action, by means of this contract of debt. In bail- 
 ment, if the bailee loses or detains a sum of money bailed to him 
 for any special purpose, he becomes indebted to the bailor in the 
 same numerical sum, upon his implied contract, that he should 
 execute the trust reposed in him, or repay the money to the 
 bailor. Upon hiring or borrowing, the hirer or borrower, at the 
 same time that he acquires a property in the thing lent, may also 
 become indebted to the lender, upon his contract to restore the 
 money borrowed, to pay the price or premium of the loan, the 
 ' hire of the horse, or the like. Any contract in short whereby a 
 '* By statute 17 & 18 Vict., ch. 90 (1854), all existing laws of usury were 
 repealed ; and the rate of interest may now be regulated by the stipulations 
 of the parties to any loan or contract. , But, in many of the United States, 
 statutes prohibiting usury are still in force. These statutes, however, differ 
 considerably in the nature and scope of their provisions. In some States, 
 a usurious contract is declared wholly void ; in others, it is void as to the ex- 
 cess of interest reserved above the legal rate ; while, in still others, the lender 
 is obliged to forfeit, the entire interest, or some specified multiple thereof. 
 The rates of legal interest vary in different States, but in the majority it is 
 six per cent. In some States, a particular rate is prescribed as applicable to 
 all contracts in the absence of special agreement ; but the parties are allowed 
 to stipulate for a higher rate, if they choose 
 
GRANT, AND CONTRACT. 573 
 
 deterr.iinate sum of money becomes due to any person, and is 
 not paid, but remains in action merely, is a contract of debt 
 And, taken in this light, it comprehends a great variety of 
 •acquisition ; being usually divided into debts of record, [*465 
 debts by special, and debts by simple contract. 
 
 A debt of record is a sum of money, which appears to be due 
 by the evidence of a court of record. Thus, when any specific 
 sum is adjudged to be due from the defendant to the plaintiff, 
 on an action or suit at law ; this is a contract of the highest na- 
 ture, being established by the sentence of a court of judicature. 
 Debts upon recognizance are also a sum of money, recognized 
 or acknowledged to be due to the crown or a subject, in the pres- 
 ence of some court or magistrate, with a condition that such 
 acknowledgment shall be void upon the appearance of the party, 
 his good behavior, or the like : and these, together with statutes 
 merchant and statutes staple, etc., if forfeited by non-performance 
 of the condition, are also ranked among this first and principal 
 class of debts, viz., debts of record ; since the contract, on which 
 they are founded, is witnessed by the highest kind of evidence, 
 viz., by matter of record. 
 
 Debts by specialty, or special contract, are such whereby a 
 sum of money becomes, or is acknowledged to be, due by deed or 
 '.nstrument under seal. Such as by deed of covenant, by deed of 
 sale, by lease reserving rent, or by bond or obligation ; which 
 last we took occasion to explain' in the twentieth chapter of the 
 present book ; and then showed that it is a creation or acknowledg- 
 ment of a debt from the obligor to the obligee, unless the 
 obligor performs a condition thereunto usually annexed, as the 
 payment of rent or money borrowed, the observance of a cove- 
 nant, and the like ; on failure of which the bond becomes forfeit- 
 ed and the debt becomes due in law. These are looked upon as 
 the next class of debts after those of record, being confirmed by 
 special evidence, under seal. 
 
 Debts by simple contract are such, where the contract upon 
 which the obligation arises is neither ascertained by matter of 
 record, nor yet by deed or special instrument, but by mere oral 
 evidence, the most simple of any ; or by notes *unsealed, [*466 
 which are capable of a more easy proof, and (therefore only) 
 better, than a verbal promise. It is easy to see into what a vast 
 iraricty of obligations this last class may be branched out, through 
 
574 OF TITLE BY GIFT, 
 
 the nuruerous contracts for money, which are not only expressed 
 by the parties, but virtually implied in law. Some of these we 
 have already occasionally hinted at : and the rest, to avoid repe- 
 tition, must be referred to those particular heads in the third 
 book of these Commentaries, where the breach of such contracts 
 will be considered. I shall only observe at present, that by the 
 statute 29 Car. II., ch. 3, no executor or administrator shall be 
 charged upon any special promise to answer damages, out of his 
 own estate, and no person shall be charged upon any promise to 
 answer for the debt or default of another, or upon any agreement 
 in consideration of marriage, or upon any contract or sale of any 
 real estate, or upon any agreement that is not to be performed 
 within one year from the making ; unless the agreement or some 
 memorandum thereof be in writing, and signed by the party 
 himself, or by his authority." 
 
 But there is one species of debts upon simple contract, which, 
 being a transaction now introduced into all sorts of civil life, 
 under the name of /a/^rtrr^^zV, deserves a more particular re- 
 gard. These are debts by bills of exchange and promissory notes. 
 
 A bill of exchange is a security, originally invented among 
 merchants in different countries, for the more easy remittance 
 of money from the one to the other, which has since spread it- 
 .self into almost all pecuniary transactions. It is an open letter 
 of request from one man to another, desiring him to pay a sum 
 named therein to a third person on his account ; by which means 
 a man at the most distant part of the world may have money 
 remitted to him from any trading country. If A. -lives in Jamaica, 
 and owes B., who lives in England, 1000/., now if C. be going 
 from England to Jamaica, he may pay B. this looo/., and take 
 a bill of exchange drawn by B. in England upon A. in Jamaica, 
 and receive it when he comes thither. * Thus does B. receive his 
 debt, at any distance of place, by transferring it to C. ; who car- 
 467*] ries over his money *in paper credit, without danger of 
 robbery or loss. This method is said to have been brought into 
 general use by the Jews and Lombards, when banished for their 
 usury and other vices ; in order the more easily to draw their 
 effects out of France and England into those cou'ntries i:i which 
 
 '^ These provisions of the English Statute of Frauds are also found in 
 the statutes of frauds in force in the several States of this country, and are 
 of much consequence. 
 
GRANT, AND CONTRACT. 575 
 
 they had chosen to reside. But the invention of it was a little 
 earlier ; for the Jews were banished out of Guienne in 1287, and 
 out of England in 1290 ; and in 1236 the use of paper credit was 
 introduced into the Mogul empire in China. In common speech 
 such a bill is frequently called a draft, but a bill of exchange is 
 the more legal as well as mercantile expression. The person, 
 however, who writes this letter, is called in law the drawer, and 
 he to whom it is written the drawee ; and the third person, or 
 negotiator, to whom it is payable (whether especially named, 
 or the bearer generally) is called the payee. 
 
 These bills are €\'Ca.^ foreign, or inland; foreign, when drawn 
 by a merchant residing abroad upon his correspondent in Eng- 
 land, or vice versa ; and inland, when both the drawer and the 
 drawee reside within the kingdom." Formerly foreign bills of 
 exchange were much more regarded in the eye of the law than 
 inland ones, as being thought of more public concern in the ad- 
 vancement of trade and commerce. But now by two statutes, 
 the one 9 & 10 Wm. III., ch. 17, the other 3 & 4 Ann., ch. 9, in- 
 land bills of exchange are put upon the same footing as foreign 
 ones ; what was the law and custom of merchants with regard to 
 the one, and taken notice of merely as such, being by those statutes 
 expressly enacted with regard to the other. So that now there 
 is not in law any manner of difference between them. 
 
 Promissory notes, or notes of hand, are a plain and direct 
 engagement in writing, to pay a sum specified at the time there- 
 in limited to a person therein named, or sometimes to his order, 
 or often to the bearer at large. These also, by the same statute 
 3 & 4 Ann., ch. 9, are made assignable and indorsable in like 
 manner as bills of exchange. But, by statute 15 Geo. III., ch. 
 5 1, all promissory or other notes, *bills of exchange, drafts, [*468 
 and undertakings in writing, being negotiable or transferable, for 
 the payment of less than twenty shillings, are declared to be niill 
 and void ; and it is made penal to utter or publish any such ; 
 they being deemed prejudicial to trade and public credit. And 
 by 17 Geo. III., ch. 30, all such notes, bills, drafts, and undertalc- 
 ings, to the amount of twenty shillings, and less than five pound:;, 
 
 " The several States of the Union are considered to be foreign to each 
 other with reference to this distinction ; and a bill drawn in one State u.pon a 
 person resident in another, is deemed a foreign bill. (Buckner v. FmUyf 
 2 Peters, 586.) 
 
576 OF TITLE BY GIFT. 
 
 are subjected to many other regulations and formalities ; the 
 omission of any one of which vacates the security, and is penal 
 to him that utters it." 
 
 The payee, we may observe, either of a bill of exchange oi 
 promissory note, has clearly a property vested in him (not indeed 
 in possession but in action) by the express contract of the drawer 
 in the case of a promissory note, and, in the case of a bill of ex- 
 change, by his implied contract, viz. that, provided the drawee 
 does not pay the bill, the drawer will : for which reason it is usual 
 in bills of exchange to express that the vabie thereof hath been 
 received by the drawer ; in order to show the consideration upon 
 which the implied contract of repayment arises. And this prop- 
 erty so vested, may be transferred and assigned from the payee 
 to any other man ; contrary to the general rule of the common 
 law, that no chose in action is assignable : which assignment is 
 llic life of paper credit. It may therefore be of some use to men- 
 tion a few of the principal incidents attending this transfer or 
 assignment, in order to make it regular, and thereby to charge 
 the drawer with the payment of the debt to other persons than 
 those with whom he originally contracted. 
 
 In the first place, then, the payee, or person to whom or whose 
 order such bill of exchange or promissory note is payable, may 
 by indorsement, or writing his name in dorso, or on the back of 
 it,, assign over his whole property to the bearer, or else to another 
 person by name, either of whom is then called the indorsee : and 
 he may assign the same to another, and so on in infinitum. And 
 a promissory note, payable to A. or bearer, is negotiable without 
 any indorsement, and payment thereof may be demanded by any 
 *469] bearer *of it. But, in case of a bill of exchange, the payee, 
 or the indorsee (whether it be a general or particular indorsement), 
 is to go to the drawee, and offer his bill for acceptance ; which 
 acceptance (so as to charge the drawer with costs) must be in 
 writing, under or on the back of the bill. If the drawee accepts 
 the bill, either verbally or in writing, he then makes himself liable 
 to pay it ; this being now a contract on his side, grounded on an 
 acknowledgment that the drawer has effects in his hands, or at 
 
 '8 The statutes, 15 Geo. 111., ch. 51, and 17 Geo. III., ch. 30, have been su- 
 peiseded by later legislation. The chief rule now in force is, that promissory 
 notes under ^^5, payable to bearer on demand, are illegal. (26 & 27 Vict., 
 ch. iQj.) In this country, such statutes have seldom or never been enactei 
 
GRANT, AND CONTRACT. 577 
 
 least credit sufficient to warrant the payment. If the drawee 
 refuses to accept the bill, and it be of the value of 20/. or upwards, 
 and expressed to be for value received, the payee or indorsee may 
 protest it for non-acceptance ; which protest must be made in 
 writing, under a copy of such bill of exchange, by some notary 
 public ; or, if no such notary be resident in the place, then by 
 any other substantial inhabitant in the presence of two credible 
 witnesses ; and notice of such protest must, within fourteen days 
 after, be given to the drawer." 
 
 But in case such bill be accepted by the drawee, and after 
 acceptance he fails or refuses to pay it within three days after it 
 becomes due (which three days are called days of grace), the 
 payee or indorsee is then to get it protested for non-payment, in 
 the same manner, and by the same persons who are to protest it 
 in case of non-acceptance, and such protest must also be notified, 
 within fourteen days after, to the drawer. And he, on producing 
 such protest, either of non-acceptance, or non-payment, is bound 
 to make good to the payee, or indorsee, not only the amount of 
 the said bills (which he is bound to do within a reasonable time 
 after non-payment, without any protest, by the rules of the com- 
 mon-law), but also interest and all charges, to be computed from 
 the time of making such protest. But if no protest be made or 
 notified to the drawer, and any damage accrues by such neglect, it 
 shall fall on the holder of the bill. The bill, when refused, must 
 be demanded of the drawer as soon as conveniently may be : for 
 
 "[With respect to acceptance and protest, the law now is, in several 
 material points, different from the statement of it in the text. Acceptance 
 is not necessary, though usual and desirable, on bills payable at a certain 
 time ; but when the bill is payable at a certain distance of time after sight, 
 then acceptance is essential, and should not be delayed, because (as the time 
 for payment of the bill does not begin to run until it is accepted), the 
 responsibility of the drawer would be thereby protracted. Acceptance must 
 now, in all cases, be in writing upon the bill, and must be signed by the ac- 
 ceptor, or some person duly authorized by him. But if the bill be presented 
 and acceptance be refused, prompt notice (within fourteen days will not 
 suffice, but usually the next day to the i-nmediate indorser, and each indorser 
 is allowed a day) must be given to the drawer and indorsers, or they will be 
 discharged from responsibility. Upon non-acceptance, the holder may im- 
 mediately sue the drawer and indorsers, without waiting until the bill becomes 
 due, according to the terms of it.] It is also the generally established rule, 
 in the United States, that acceptances must be in writing on the face of the 
 bill. The rules in regard to the time of giving notice are also substantially 
 the same as in England. (See Daniel on Negotiable Instruments ; Parsons 
 on Bills and Notes.) ,» 
 
578 OF TITLE BY GIFT, GRANT, ETC. 
 
 •470] though, when one draws a bill of *exchange, he subjects 
 himself to the payment, if the person on whom it is drawn re- 
 fuses either to accept or pay, yet that is with this limitation, that 
 if the bill be not paid when due, the person to whom it is pay- 
 able shall in convenient time give the drawer notice thereof ; for 
 otherwise the law will imply it paid : since it would be prejudicial 
 to commerce if a bill might rise up to charge the drawer at any 
 distance of time : when in the meantime all reckonings and ac- 
 counts may be adjusted between the drawer and the drawee. 
 
 If the bill be an indorsed bill, and the indorsee cannot get 
 the drawee to discharge it, he may call upon either the drawer or 
 the indorser, or if the bill has been negotiated through many 
 hands, upon any of the indorsers ; for each indorser is a war- 
 rantor for the payment of the bill, which is frequently taken in 
 payment as much (or more) upon the credit of the indorsers, as 
 of the drawer. And if such indorser, so called upon, has the 
 names of one or more indorsers prior to his own, to each of 
 whom he is properly an indorsee, he is also at liberty to call upon 
 any of them to make him satisfaction ; and so upwards. But the 
 first indorser has nobody to resort to but the drawer only. 
 
 What has been said of bills of exchange is applicable also to 
 promissory notes, that are indorsed over, and negotiated from 
 one hand to another; only that, in this case, as there is no 
 drawee, there can be no protest for non-acceptance ; or rather 
 the law considers a promissory note in the light of a bill drawn 
 by a man upon himself, and accepted at the time of drawing. 
 And, in case of non-payment by the drawer, the several indorsees 
 of a promissory note have the same remedy, as upon bills of ex 
 change, against the prior indorsers. 
 
 "> The law of England In regard to bills of exchange and promissory notes 
 has been recently fully codified by an important statute (45 & 46 Vict., c. 61I 
 The American law on these subjects is so similar that this statute will be found 
 useful for reference in this country. 
 
OF TITLE BY BANKRUPTCY. 579 
 
 CHAPTER XXX. 
 
 [BL. COMM. — BOOK II. CH. XXXI.] 
 
 Of Title by Bankruptcy. 
 
 The preceding chapter having treated pretty largely of the 
 acquisition of personal property by several commercial methods, 
 we from thence shall be easily led to take into our present con- 
 sideration a tenth method of transferring property, which is that 
 of:- 
 
 X. Bankruptcy ; a title which we before lightly touched upon, 
 so far as it related to the transfer of the real estate of the bank- 
 rupt. At present we are to treat of it more minutely, as it prin- 
 cipally relates to the disposition of chattels, in which the property 
 of persons concerned in trade more usually consists, than in lands 
 or tenements. Let us, therefore, first of all consider, i. Who 
 may become a bankrupt : 2. What acts make a bankrupt : 3. 
 T\\t proceedings on a commission of bankrupt : and, 4. In what 
 manner an estate in goods and chattels may be transferred by 
 bankruptcy. 
 
 I. Who may become a bankrupt. A bankrupt was before 
 defined to be "a trader, who secretes himself," or "does certain 
 other acts, tending to defraud his creditors." He was formerly 
 considered merely in the light of a criminal or offender ; and 
 in this spirit we are told by Sir Edward Coke, that we have 
 fetched as well the name as the wickedness *of bankrupts [*472 
 from foreign nations. But at present the laws of bankruptcy are 
 considered as laws calculated for the benefit of trade, and founded 
 on the principles of humanity as well as justice ; and to that end 
 they confer some privileges, not only on the creditors, but also 
 on the bankrupt or debtor himself. On the creditors, by com- 
 pelling the bankrupt to give up all his effects to their use, with- 
 out any fraudulent concealment : on the debtor, by exempting 
 him from the rigor of the general law, whereby his person 
 might be confined at the discretion of his creditor, though in 
 reality he has nothing to satisfy the debt : whereas the law of 
 
580 ■ OF TITLE B Y BANKR UPTCY. 
 
 bankrupts, taking into consideration the sudden and unavoidable 
 accidents to which men in trade are liable, has given them the 
 liberty of their persons, and some pecuniary emoluments, upon 
 condition they surrender -up their whole estate to be divided 
 among their creditors.' 
 
 In this respect our Legislature seems to have attended to the 
 xample of the Roman law. I mean not the terrible law of the 
 .welve tables; whereby the creditors might cut the debtor's body 
 into pieces, and each of them take his proportionable share : if, 
 indeed, that law, de debitore in partes secando, is to be understood 
 in so very butcherly a light ; which many learned men have with 
 reason doubted. Nor do I mean those less inhuman laws (if 
 
 ' Insolvency. — Under the former English law, a precise distinction was 
 drawn between bankruptcy and insolvency. A bankrupt was a trader, who 
 had become unable to pay his debts ; while an insolvent was a non-trader, 
 who could not discharge his obligations. Laws providing for the distribution 
 of assets among creditors, were termed bankrupt or insolvent laws, according 
 to their application to one or the other class of debtors. Bankrupt laws also 
 had the effect to discharge a trader entirely from his indebtedness ; while 
 insolvent laws only relieved a debtor from the penalty of imprisonment, but 
 left subsequently acquired property subject to the claim of creditors. But, 
 under the present English law, these distinctions are discarded ; and it is pro- 
 vided that all persons may be adjudged bankrupts, whether they are traders 
 or not, and may be discharged from their indebtedness upon fulfilling the re- 
 quirements of the statute. 46 & 47 Vict., ch. 5a.) In the United States, these 
 distinctions have not been regarded in legislation; but a discrimination of a 
 different kind has been made in the use of these terms, though it has not 
 been observed or applied with much strictness. Thus, the laws enacted by 
 Congress upon this subject, in pursuance of the power given by the Consti- 
 tution to establish a uniform rule on the subject of bankruptcies, have been 
 termed " bankrupt laws ; " while statutes of similar scope and purport, enacted 
 by the several States, when no bankrupt law of Congress was in force, have 
 been, by way of distinction, designated as " insolvent laws." The distinction, 
 therefore, depended, not upon the nature of the provisions found in these 
 statutes, but upon their enactment by Congress or a State legislature ; but 
 since this is a comparatively unimportant ground of discrimination, the terms, 
 " bankruptcy " and "insolvency," were frequently used interchangeably. It 
 was held that a bankrupt law might contain those provisions which are gen- 
 erally found in insolvent laws, and vice versa. At the present time (1890) there 
 is no U. S. bankrupt law in force, the last one, that of March 2, 1867, having 
 been repealed September I, 1878. Upon its repeal the insolvent laws of the 
 several States came into effect and are now in force. But it is not improbable 
 that another bankrupt law will be passed within a few years, as there appears 
 to be a strong sentiment in its favor throughout the country. A summary ol 
 the last bankrupt law is given in note 2, post, lor though not now in force, its pro- 
 visions well illustrate the general nature of both bankrupt and insolvent laws, 
 and it will be useful to show the character of such legislation. 
 
OF TITLE B Y BANKR UP TC Y. 5 S i 
 
 they may be called so, as their meaning is indisputably certain), 
 of imprisoning the debtor's person in chains ; subjecting him to 
 stripes and hard labor, at the mercy of his rigid creditor ; and 
 sometimes selling him, his wife, and children, to perpetual foreign 
 slavery, trans Tiberim : an oppression which produced so many 
 •popular insurrections, and secessions to the motis sacer. [*473 
 But I mean the law of cession, introduced by the Christian em- 
 perors ; whereby, if a debtor ceded, or yielded up all his fortune 
 to his creditors, he was secured from being dragged to a gaol, 
 "omni quoque corporali cruciatu semoto." For, as the emperor 
 justly observes, " inkumanum erat spoliatum fortunis suis in soli- 
 dum damnari." Thus far was just and reasonable : but, as the 
 departing from one extreme is apt to produce its opposite, we find 
 it afterwards enacted that, if the debtor by any unforeseen acci- 
 dent was reduced to low circumstances, and would swear that be 
 had not sufficient left to pay his debts, he should not be com- 
 pelled to cede or give up even that which he had in his posses- 
 sion : a law, which under a false notion of humanity, seems to 
 be fertile of perjury, injustice, and absurdity. 
 
 The laws of England, more wisely, have steered in the middle 
 between both extremes : providing at once against the inhu- 
 manity of the creditor, who is not suffered to confine an honest 
 bankrupt after his effects are delivered up ; and at the same time 
 taking care that all his just debts shall be paid, so far as the ef- 
 fects will extend. But still they are cautious of encouraging 
 prodigality and 'extravagance by this indulgence to debtors ; and 
 therefore they allow the benefit of the laws of bankruptcy to none 
 but actual traders ; since that set of men are, generally speaking, 
 the only persons liable to accidental losses, and to an inability of 
 liaying their debts, without any fault of their own. If persons 
 in other situations of life run in debt without the power of pay- 
 ment, they must take the consequences of their own indiscretion, 
 even though they meet with sudden accidents that may reduce 
 their fortunes : for the law holds it to be an unjustifiable practice 
 for any person but a trader to encumber himself with debts of 
 any considerable value. If a gentleman, or *one in a lib- [*474 
 eral profession, at the time of contracting his debts, has a suffi- 
 cient fund to pay them, the delay of payment is a species of dis- 
 honesty, and a temporary injustice to his creditor: and if , at 
 such a time, he has no sufficient fund, the dishonesty and injus- 
 
582 OF TITLE BY BANKRUPTCY. 
 
 tice is the greater. He cannot therefore murmur, if he suffers 
 the punishment which he has voluntarily drawn upon himself. 
 But in mercantile transactions the case is far otherwise. Trade 
 cannot be carried on without mutual credit on both sides ; the 
 contracting of debts is therefore here not only justifiable, but 
 necessary. And if by accidental calamities, as, by the loss of a 
 ship in a tempest, the failure of brother traders, or by the non- 
 payment of persons out of trade, a merchant or trader becomes 
 incapable of discharging his own debts, it is his misfortune and 
 not his fault. To the misfortunes, therefore, of debtors, the law 
 has given a compassionate remedy, but denies it to their faults : 
 since, at the same time that it provides for the security of com- 
 merce, by enacting that every considerable trader may be de- 
 clared a bankrupt, for the benefit of his creditors as well as him- 
 self, it has also (to discourage extravagance) declared that no 
 one shall be capable of being made a bankrupt, but onlj a. trader ; 
 nor capable of receiving the full benefit of the statutes, but only 
 an industrious trader.* 
 
 * The succeeding portions of this chapter, in the original text, consist of 
 a statement of the statutory law upon the subject of bankruptcy, which has 
 been wholly abrogated by later enactments, since these Commentaries were 
 written. It has, therefore, been deemed expedient to omit them in this 
 edition, as at present of no practical importance, and to insert in their place a 
 summary of the English bankrupt law now in force. This is the statute 46 & 
 47 Vict., c. 52, enacted in 1883. The general similarity of the English bank- 
 rupt law to our bankrupt and insolvent laws will render it of interest and 
 value to the American student. The leading provisions of the last United 
 States bankrupt law will be found in the succeeding note.^ This law was re- 
 pealed September i, 1878. (See note 1, ante.) 
 
 2 By the United States Constitution, Congress possesses power to establish 
 uniform laws on the subject of bankruptcies, throughout the Union. This 
 power has been exercised by the enactment of bankruptcy laws on three several 
 occasions — first, by the Act of 1800, repealed in 1803 ; second, by the Act of 
 1841, repealed in 1843; and third, by the Act of March 2, 1867, which, after 
 sundry modifications by a number of amendatory statutes, continued in force 
 until September i, 1878. This statute superseded the systems of insolvent 
 laws of the several States, and prevailed uniformly throughout the entire 
 country. The tribunals having jurisdiction in bankruptcy cases, were the 
 courts of the United States. Provision was made by the act for adjudging 
 a person a bankrupt upon his own application, or upon the application of his 
 creditors. In the first case, the bankruptcy was denominated "voluntary, 
 in the second, " involuntary." The act applied not only to " traders," but to 
 
OF TITLE BY BANKRUPTCY. 583 
 
 [For a long time, all bankruptcy acts were confined in their 
 operation to traders only. Persons who were not traders were 
 left to the ordinary course of law, and could only get rid of the 
 
 "any person residing within tile jurisdiction of the United States, and owing 
 debts provable in bankruptcy, exceeding the amount of $300." Such a person 
 might become a voluntary banlcrupt by applying by petition to the judge of the 
 proper district, setting forth his place of residence, his inability to pay all his 
 debts in full, his willingness to surrender all his property for the benefit of his 
 creditors, and his desire to obtain a discharge from his debts. To this petition 
 must be ai nexed a schedule containing a full statement of all his debts, of the 
 names of the respective creditors, of the consideration of each debt, and of any 
 security given for its payment ; and also an inventory of all his property, both 
 real and personal. He was, thereupon, adjudged a bankrupt, and notice was 
 given to his creditors. 
 
 An adjudication of involuntary bankruptcy might be obtained, when a 
 debtor, whose indebtedness exceeded $300, committed one of the following acts 
 of bankruptc}', which the act enumerated : (i) Departing from the State, dis 
 trict, orterritory, of which he was an inhabitant, with intent to defraud his cred- 
 itors ; or, when absent, remaining absent with like intent. (2) Concealing him- 
 self to avoid the service of legal process for the recovery of a debt payable 
 under the act. (3) Concealing or removing property to avoid its attachment 
 under legal process. (4) Making any assignment, gift, sale, conveyance, or 
 transfer of his estate, property, rights, or credits, with intent to delay, defraud, 
 or hinder his creditors. (5) Being under arrest upon legal process, founded 
 upon a claim in its nature provable against a bankrupt's estate, and for a sum 
 exceeding $roo, for a period of 7 days ; or being actually imprisoned for 
 more than 7 daj's in a civil action founded upon contract for $100 or a larger 
 sum. (6) Making any payment, gift, grant, sale, conveyance, or transfer of 
 money or other propertj', estate, rights, or credits, or confessing judgment, or 
 giving warrant to confess judgment, while bankrupt or insolvent, or in contem- 
 plation of bankruptcy or insolvency ; or procuring his property to be taken on 
 legal process, with intent to give a preference to one or more of his creditors, 
 3rto persons liable for him as sureties or otherwise, or with intent, by such dis- 
 position of his property, to defeat or delay the operation of the act. (7) Being 
 a banker, broker, merchant, trader, manufacturer, or miner, and fraudulently 
 stopping payment, or suspending and not resuming payment of his commercial 
 paper, within a period of 14 days. The petition might be made by a creditor or 
 creditors, the aggregate of whose provable debts amounted to at least $250 ; 
 and was to be brought within six months after the alleged act of bankruptcy 
 had been committed. 
 
 Provision was also made by the act, for restraining transfers of property by 
 the debtor ; for holding meetings of creditors ; for the appointment of an as- 
 signee in bankruptcy to collect the debtor's assets for the benefit of cred- 
 itors, and to settle the estate, etc. The assignee was chosen by the greater 
 part m value and in number of the creditors,' who had proved their debts. 
 
584 OF TITLE BY BANKRUPTCY. 
 
 burden of their debts by paying them, and no means existed for 
 an enforced distribution of their estates. Under these statutes, 
 it was held that buying only, or selling only, would not qualify 
 a man to be a bankrupt; but it must be both buying and selling, 
 and also getting a livelihood by it, as by exercising the calling 
 of a merchant, a grocer, etc. But no handicraft occupation would 
 make a man a regular bankrupt; as that of a husbandman, gar- 
 dener, and the like, who are paid for their work and labor. When, 
 however, persons buy goods, and make them up into salable com- 
 modities — as shoe-makers, smiths, and the like — here, though 
 part of thegain is by bodily labor, and not by buying and selling, 
 
 subject to the approval of the judge. He might be required to give a bond for 
 the faithful performance of the trust confided to him. As soon as he was ap- 
 pointed and qualified, the judge, or register in bankruptcy, assigned and con- 
 veyed to him all the estate, real and personal, of the bankrupt, with all the 
 deeds, books, and papers relating thereto ; and this assignment vested all such 
 propert}' and estate in the assignee, and dis.solved any attachment made 
 thereon within four months before the commencement of bankruptcy proceed- 
 ings. But there were exempted from the operation of this conve3'ance certain 
 articles of domestic use and convenience, to the value ot S500; also wearing 
 apparel, and such other property as was exempted from attachment or levj' by 
 the laws of the United States, or by the laws of the bankrupt's State, in force in 
 1871. Such articles were reserved to the bankrupt. The assignee was empow- 
 ered to enforce all claims or rights of action belonging to the debtor, and to col- 
 lect all available assets for distribution among the creditors who had proved 
 their claims. This distribution was made /m rata, without any priority or pre- 
 ference whatever, except in specially excepted cases. Thus, it was provided 
 that the following claims were entitled to priority, and were to be first paid in 
 full, in successive order : (i) The fees, costs, and expenses of suits, and of the 
 several proceedings in bankruptcy. (2) All debts, taxes, or assessments due 
 to the United States. (3) Debts, taxes, and assessments due to the State 
 wherein the proceedings were pending. (4) Wages, not exceeding $50, due to 
 any operative, clerk, or house-servant, for labor performed within six months 
 before the bankruptcy proceedings, (5) Debts due to anj' persons who, by the 
 laws of the United States, were entitled to a priority. In regard to other 
 claims, dividends were declared, and each creditor received the same percentage. 
 
 At auy time after the expiration of six months from the adjudication of 
 bankruptcy, or if no debts had been proved, or no assets had come to the hands 
 of the assignee, at any time after 60 days, and before the final disposition of the 
 cause, the bankrupt might apply to the court for a discharge from his debts. 
 No discharge would be granted if the debtor had been guilty of any one of a 
 number of fraudulent acts or transactions which the act specially enumerated. 
 No discharge was granted to a debtor whose assets were not equal to 50 per 
 cent, of tlie claims proved against the estate, upon which he was liab'e as prin- 
 cipal debtor, without the assent in writing of a majority in number and value 
 of his creditors who had proved their claims and to whom ho was liable as prin- 
 cipal debtor. But a person who was once discharged, and became subsequently 
 a voluntary bankrupt, was not entitled to a second discharge, unless his estate 
 paid 70 per cent, of his debts, or he obtained the assent, in writing, of three- 
 fourths of his creditors in value ; there were some exceptions,however,to this rule. 
 
 There were also provisions in thr act for the appointment of registers in 
 bankruptcy for the transaction of administrative or non-litigated busmess con- 
 nected with the proceedings in bankruptcy. There were also special provis- 
 ions with reference to the bankruptcy of partnerships and corporations. (See 
 U. S. Rev. Stat, Title Ixi.) 
 
OF TITLE BY BANKRUPTCY. 585 
 
 yet they were held to be within the statutes of bankrupts ; for 
 the labor is only in melioration of the commodity, and rendering 
 it more fit for sale. Moreover, it was held that one single act of 
 buying and selling would not make a man a trader, but there 
 must be a repeated practice and profit by it. This distinction 
 between traders and non-traders was first broken into by an 
 act, taking effect in 1861, by which all persons were made 
 liable to become bankrupt. And now, under the act which 
 will henceforth regulate this branch of our law, the distinction 
 is also discarded. 
 
 We will now give a' short account of the provisions of this 
 new act. (46 & 47 Vict. c. 52.) 
 
 1. All persons, even including persons who have privilege of 
 parliament, may be adjudged bankrupt, whether they be 
 traders or not. 
 
 A person becomes a bankrupt when adjudged so by the 
 court, either upon his own petition, or upon the petition of a 
 creditor, whose debt, which must be a liquidated and un- 
 secured debt, amounts to ;^5o or upwards, or of several 
 creditors whose debts in the aggregate amount to that sum at 
 least. But before a creditor's petition can be presented, the 
 debtor must have committed one of the acts or defaults, which 
 are in the next paragraph termed " acts of bankruptcy." A 
 debtor's petition is itself an act of bankruptcy. 
 
 2. Acts of bankruptcy are: (i) making a conveyance or 
 assignment of his property to a trustee for the benefit of his 
 creditors generally. (2) Making a fraudulent conveyance, gift, 
 delivery, or transfer of his property, or any part of it. (3) 
 Making a transfer of his property or any part of it, or creating 
 any charge thereon, which would be void as a fraudulent pref- 
 erence, if he were adjudged bankrupt. (4) Doing, with intent 
 to defeat or delay his creditors, any of the following acts : viz., 
 departing from or remaining out of England ; or departing 
 from his dwelling-house, or otherwise absenting himself; or 
 beginning to keep house. (5) Filing in the proper court a 
 declaration that he is unable to pay his debts, or presenting a 
 bankruptcy petition against himself. (6) Having execution 
 levied by seizure and sale of his goods, under civil process. (7) 
 Receiving a bankruptcy notice from a judgment creditor, 
 
586 OF TITLE BY BANKRUPTCY. 
 
 requiring him to pay the judgment or to secure or compound 
 for it, and failing within a prescribed time to comply with the 
 notice or to satisfy the court that he has a counter-claim which 
 exceeds the judgment debt. (8) Giving notice to any of his 
 creditors that he has suspended or is about to suspend pay- 
 ment of his debts. 
 
 3. A creditor's petition must be made within three months 
 after the act of bankruptcy is committed ; and upon due proof 
 of its allegations, an order may be made appointing a receiver 
 for the protection of the estate. Such an order is also made 
 upon a debtor's petition. No creditor can then have any 
 remedy or action against the debtor without the leave of the 
 court. After a receiver is appointed, a general meeting of the 
 creditors is held as soon as may be, at which they are to 
 determine whether they will agree to a composition with the 
 debtor or prefer that he be adjudged bankrupt. If a majority 
 of them, representing three-fourths in value of all the creditors 
 who have proved, agree to the composition, it will, if approved 
 by the court, be carried into effect; and if a trustee be 
 appointed under it, he is subject to the same regulations as a 
 trustee in bankruptcy. But if no composition is arranged in 
 this way, or, if agreed upon, is not approved by the court, the 
 debtor will be adjudged a bankrupt. The act of bankruptcy 
 upon which the petition is founded, or the earliest act of bank- 
 ruptcy that is proved to have been committed within three 
 months before the petition is presented, constitutes the 
 commencement of the bankruptcy. 
 
 As soon as an order of adjudication has been made, the 
 property of the debtor becomes divisible among his creditors. 
 The creditors may appoint some fit person, whether a creditor 
 or not, as the trustee, and also nominate some other fit persons 
 (not more than five nor less than three), who are to be creditors 
 who have proved their debts or their proxies, as a committee 
 of inspection, for the purpose of superintending the admin- 
 istration of the bankrupt's property by the trustee ; or the 
 creditors may leave the appointment of the trustee to the 
 committee. The title of the trustee relates back to the com- 
 mencement of the bankruptcy. After the adjudication of 
 bankruptcy, the creditors may agree to a composition with the 
 debtor, and if this is approved by the court, the bankruptcy 
 will be annulled, and the composition will be enforceable as if 
 it had been agreed upon beforehand. 
 
 4. The property which is to be divisible among the 
 creditors is not to include any property held by the bankrupt 
 in trust for any other person, nor the tools of his trade, nor the 
 necessary wearing apparel and bedding of himself, his wife, and 
 
OF TITLE BY BANKRUPTCY. 587 
 
 children; such tools, apparel and bedding not exceeding in 
 value the sum of ;^20. But it is to include (i) All such 
 property as may be vested in the bankrupt at the beginning of 
 the bankruptcy, or may be acquired by, or devolve upon him 
 during its continuance ; (2) The capacity to exercise, or take 
 proceedings to exercise, all powers over property, which might 
 be exercised by the bankrupt for his own benefit at the 
 beginning, or at any time during the continuance, of the bank- 
 ruptcy; (3) All goods being, at the beginning of the bankruptcy, 
 in the possession, order, or disposition of the bankrupt in his 
 trade or business, by the consent and permission of the true 
 owner, under such circumstances that he is the reputed owner 
 thereof; but it is provifled that things in action, other than 
 debts due or growing due to him in the course of his trade or 
 business are not to be deemed goods, within the meaning of 
 this section. 
 
 Upon the appointment of the trustee, the property vests 
 without any conveyance, assignment, or transfer in him ; and 
 the certificate by the court of his appointment constitutes his 
 title-deed. It is the duty of the trustee to realize all the 
 property, and, except in special cases, convert it into money, 
 and from time to time (acting with- the sanction of the com- 
 mittee) to divide it ratably among the creditors according to 
 the amount of their debts. Large powers of administration 
 are given to the trustee for these purposes ; as to the debts, they 
 are to be paid ratably, with certain exceptions, the most 
 important of which are taxes, and the wages of clerks, servants, 
 and workmen, which have priority over all other debts. The 
 debts provable in bankruptcy include all debts and liabilities, 
 except those of the nature of unliquidated damages arising 
 otherwise than by contract or promise or breach of trust, 
 and also except debts incurred after an act of bankruptcy with 
 a person who had notice of the act. Interest may be allowed 
 in proper cases, and claims not yet due may be proved with a 
 rebate. 
 
 When the whole of the property has been realized for the 
 benefit of the creditors, or as much of it as, in the opinion of 
 the trustee and the committee, can be realized without need- 
 lessly protracting the trusteeship, the trustee declares a final 
 dividend; and after sufificient time is given for the satisfactory 
 proof of claims which have been presented but not duly proved, 
 the bankrupt's property is distributed among the creditors 
 who have proved their debts. Any surplus after paying debts 
 and expenses is restored to the bankrupt. The trustee may 
 thereupon be relieved of his office, if his acts and conduct are 
 approved. 
 
588 OF TITLE BY BANKRUPTCY. 
 
 The bankrupt may apply for his discharge at any, time 
 after being adjudged bankrupt. The court then considers his 
 conduct and affairs, and may either grant an absolute order of 
 discharge, or, if he has been guilty of various negUgent or 
 wrongful acts (such as not keeping proper books of account, 
 trading after knowing of his insolvency, bringing on his bank- 
 ruptcy by rash speculation, being guilty of fraud, etc.), may 
 refuse such an order, or suspend the operation of the order for 
 a specified time, or grant it subject to any conditions with 
 respect to any income or property that he may afterwards 
 acquire. As one of such conditions, the court may require him 
 to consent to judgment being entered against him by the re- 
 ceiver or trustee for any balance of the debts provable under the 
 bankruptcy, which is not satisfied at the time of the discharge. 
 An order of discharge releases the bankrupt from all debts 
 provable under the bankruptcy, except those which he incurred 
 by means of any fraud or breach of trust, and those of which, 
 he obtained forbearance by means of fraud ; and also except 
 debts due on recognizances, and debts due to the crown, or 
 relating to the revenue ; but of these last he may be discharged 
 if the commissioners of the treasury certify their consent in 
 writing to such discharge. If the bankrupt fails to obtain an 
 order of discharge, then if he obtains credit to the extent of 
 ;£'20 or upwards from any person, without informing such 
 person that he is an undischarged bankrupt, he is guilty of a 
 misdemeanor. He is also subject to many political disqualifi- 
 cations. But an adjudication of bankruptcy maybe annulled 
 where it is proved to the court that the debtor ought not to 
 have been adjudged bankrupt, or that his debts are paid in full.]' 
 
 ' Other important methods of obtaining title from a failing debtor, are by 
 agreements for a composition, and by assignment. A "composition" is a 
 voluntary arrangement, made by a debtor with his creditors, in which they 
 agree to accept a part payment in full satisfaction of their claims, and to 
 grant the debtor a complete discharge. This is commonly made by deed, 
 termed a " composition deed ;'' but when the indebtedness arises out of simple 
 contract, it may be made orally, or by instrument not under seal. The com- 
 position must be founded upon a sufficient consideration. If it be made with 
 a single creditor, his agreement to accept a less sura than the whole claim, in 
 full satisfaction, is not sufficient, but there must be some independent con- 
 sideration, such as the payment of a sum of money by a third person, or a 
 
B Y TESTAMENT AND AD MINIS TRA TION. 589 
 
 CHAPTER XXXI. 
 
 [BL. COMM. BOOK II. CH. XXXII.] 
 
 Of Title by Testament and Administration, 
 
 There yet remains to be examined, in the present chapter, 
 two other methods of acquiring personal estates, viz. by testament 
 and administration. And these I propose to consider in one and 
 the same view ; they being in their nature so connected and 
 blended together, as makes it impossible to treat of them dis- 
 tinctly, without manifest tautology and repetition. 
 
 XL, XII. In the pursuit, then, of this joint-subject, I shall, 
 first, inquire into the original and antiquity of testaments and ad- 
 ministrations ; shall, secondly, show who is capable of making a 
 last will and testament ; shall, thirdly, consider the nature of a 
 testament and its incidents ; shall, fourthly, show what an execu- 
 tor and administrator are, and how they are to be appointed ; 
 and, lastly, shall select some few of the general heads of the 
 office and duty of executors and administrators. 
 
 First, as to the original of testaments and administrations. 
 We have more than once observed, that when property came to 
 be vested in individuals by the right of occupancy, it became 
 necessary for the peace of society, that this occupancy should be 
 
 stipulation by the debtor to pay the smaller sum, at a time or in a manner 
 more beneficial to the creditor than the payment of the full amount, according 
 to the terms 01 iginally agreed upon. But when the engagement is made with 
 several creditois, their mutual promises to accept a percentage in liquidation 
 of their demands will constitute a sufficient consideration. {White v. Kuntz, 
 107 N. Y. 518, 524; see i Hilton, 515.) The composition deed need not be 
 in any particular form. It may contain any stipulations, not invalid upon 
 other legal grounds, upon which the parties may agree. Thus, it is sometimes 
 provided that the composition shall be valid and obligatory only in case all the 
 creditors enter into the compromise ; and if, in such a case, any of the creditors 
 refuse, the composition is not binding. (143 Mass. 42 ; 100 Pa. St. 159 ; 14 
 N. Y. 322.) It is not, however, requisite, irrespective of such an agreement, 
 that all the creditors should enter into the compromise, and as many will be 
 bound as do become parties to the composition deed. The terms and con- 
 ditions of the deed must be strictly complied with by the debtor, to be a 
 bar to an action by the creditor to recover the full claim {Clarke v. White, 
 12 Peters, 178) ; and unless the reduced amount agreed upon be paid on 
 the day appointed, the original debt is revived. {Penniman v. Elliott, 27 
 iiarb. 315.) After a composition is entered into, any secret arrangement, 
 giving a preference to any one of the creditors contrary to the terms oi 
 
590 OF TITLE BY TESTAMENT, 
 
 continued, not only in the present possessor, but in those persons 
 to whom he should think proper to transfer it ; which introduced 
 •490] the doctrine and practice of alienations, *gifts, and con- 
 tracts. But these precautions would be very shbrt and imperfect, 
 if they were confined to the life only of the occupier ; for then, 
 upon his death, all his goods would again become common, and 
 create an infinite variety of strife and confusion. The law of 
 very many societies has therefore given to the proprietor a right 
 of continuing his property after his death, in such persons as he 
 shall name ; and, in defect of such appointment or nomination, 
 or where no nomination is permitted, the law of every society has 
 directed the goods to be vested in certain particular individuals, 
 exclusive of all other persons. The former method of acquiring 
 personal property, according to the express directions of the de- 
 ceased, we call a testament: the latter, which is also according to 
 the will of the deceased, not expressed indeed, but presumed by 
 the law, we call in England an administration ; being the same 
 which the civil lawyers term a succession ab intestate, and which 
 answers to the descent or inheritance of real estates. 
 
 Testaments are of very high antiquity. We find them in use 
 among the ancient Hebrews ; though I hardly think the example 
 usually given of Abraham's complaining that, unless he had 
 some children of his body, his steward Eliezerof Damascus would 
 be his heir, is quite conclusive to show that he had made him so 
 by will. And, indeed, a learned writer has adduced this very 
 
 the deed, is fraudulent and invalid. {Lawrence v. Clark, 36 N. Y. 128; 
 Bliss \. Matteson, 45 N. Y. 22; Bald-win v. Rosenman, 49 Conn. 105.) 
 No securities, given in accordance with such an underhand arrangement, will 
 be enforceable. The principles upon which the validity of composition 
 agreements is based, are substantially the same as those upon which the 
 doctrine of accord and satisfaction depends. 
 
 The other method of securing a division of the debtor's assets among 
 his creditors, is by an assignjnent in trust for the benefit of creditors. 
 The assignee becomes a trustee, and is under the ordinary duties and re- 
 sponsibilities of trustees, and is held to a faithful discharge of his trust. The 
 method ol making an assignment, and of distributing the assets, is frequently 
 regulated by statute in the various States. Preferential assignments, by which 
 the claims of certain creditors are preferred to others, are generally held allow- 
 able, unless prohibited by the provisions of a bankrupt or insolvent law or 
 other statute. The last U. S. bankrupt law forbade such preferences, when 
 made within a specified time before the petition in bankruptcy, but this statute 
 is now repealed. (See note i, ante.) 
 
AND ADMINISTRATION. 59; 
 
 passage to prove, that, in the patriarchal age, on failure of chil 
 dren, or kindred, the servants born under their master's roof sue 
 ceeded to the inheritance as heirs-at-law. But (to omit what 
 Eusebius and others have related of Noah's testament, made in 
 writing and witnessed under his seal, whereby he disposed of the 
 whole world) I apprehend that a much more authentic instance 
 of the early use of testaments may be found in the Sacred writings, 
 wherein Jacob bequeaths to his son Joseph a portion of his in- 
 ' * heritance double to that of his brethren : which will we [*491 
 find carried into execution many hundred years afterwards, when 
 the posterity of Joseph were divided into two distinct tribes, those 
 of Ephraim and Manasseh, and had two several inheritances as- 
 signed them ; whereas the descendants of each of the other 
 patriarchs formed only one single tribe, and had only one lot of 
 inheritance. Solon was the first legislator that introduced wills 
 into Athens ; but in many other parts of Greece they were totally 
 discountenanced. In Rome they were unknown, till the laws of 
 the twelve tables were compiled, which first gave the right of 
 bequeathing : and, among the Northern nations, particularly 
 among the Germans, testaments were not received into use. 
 And this variety may serve to evince, that the right of making 
 wills, and disposing of property after death, is merely a creature 
 of the civil state ; which has permitted it in some countries and 
 denied it in others : and, even where it is permitted by law, it is 
 subjected to different formalities and restrictions in almost every 
 nation under heaven. 
 
 With us in England, this power of bequeathing is coeval with 
 the first rudiments of the law : for we have no traces or memori- 
 als of any time when it did not exist. Mention is made of 
 intestacy, in the old law before the Conquest, as being merely ac- 
 cidental ; and the distribution of the intestate's estate, after pay- 
 ment of the lord's heriot, is then directed to go according to the 
 established law. " Sive qtiis incuria, sive morte rcpentina, fiierit 
 mtestaius mortttus, dominus tamen nullatn rei^m suai'um partem 
 {prater earn qucejure debetiir hereoti nomine) sibi assumito. Ve- 
 mtn possessiones uxori. Uteris, et cognatione proximis, pro sua 
 cuiqtiejure, distribuantur." But we are not to imagine, that this 
 power of bequeathing extended originally to all a man's personal 
 estate. On the contrary, Glanvil will inform us, that by common 
 law, •a.s it stood in the reign of Henry the Second, a [*49? 
 
592 OF TITLE BY TESTAMENT, 
 
 man's goods were to be divided into three equal parts : of whicB 
 one went to his heirs or lineal descendants, another to his wife, 
 and the third was at his own disposal : or, if he died without a 
 wife, he might then dispose of one moiety, and the other went to 
 his children ; and so e converse, if he had no children, the wife 
 was entitled to one moiety, and he might bequeath the other ; 
 but if he died without either wife or issue, the whole was at his 
 own disposal. The shares of the wife and children were called 
 their reasonable parts ; and the writ de rationabili parte bonorum 
 was given to recover them. 
 
 This continued to be the law of the land at the time of magna 
 charta, which provides, that the king's debts shall first of all be 
 levied, and then the residue of the goods shall go to the executor 
 to perform the will of the deceased ; and, if nothing be owing to 
 the crown, " omnia catalla cedant defuncto ; salvis uxori ipsius et 
 piieris suis rationabilibus partibus suis." In the reign of King 
 Edward the Third, this right of the wife and children was still 
 held to be the universal or common law; though frequently 
 pleaded as the local custom of Berks, Devon, and other counties: 
 and Sir Henry Finch lays it down expressly, in the reign of 
 Charles the First, to be the general law of the land. But this 
 law is at present altered by imperceptible degrees, and the de- 
 ceased may now, by will, bequeath the whole of his goods and 
 chattels ; though we cannot trace out when first this alteration 
 began. Indeed, Sir Edward Coke is of opinion, that this never 
 *493] was *the general law, but only obtained in particular 
 places, by special custom : and to establish that doctrine, he relies 
 on a passage in Bracton, which, in truth, when compared with 
 the context, makes directly against his opinion. For Bracton 
 lays down the doctrine of the reasonable part to be the common 
 law ; but mentions that as a particular exception, which Sir 
 Edward Coke has hastily cited for the general rule. And Glanvil, 
 niagna charta, Fleta, the year-books, Fitzherbert, and Finch, do 
 fJI agree with Bracton, that this right to the pars rationabilis 
 was by the common law : which also continues to this day to be 
 the general law of our sister kingdom of Scotland. To which we 
 may add, that, whatever may have been the custom of later years 
 in many parts of the kingdom, or however it was introduced in 
 derogation of the old common law, the ancient method continued 
 in use in the province of York, the prir nipahty of Wales, and in 
 
AND ADMINISTRA TION. 5.,3 
 
 ♦.he city of London, till very modern times : when, in order to 
 favor the power of bequeathing, and to reduce the whole kingdom 
 to the same standard, three statutes have been provided : the 
 one 4 & 5 Wm. & M., ch. 2, explained by 2 & 3 Ann., ch. 5, for the 
 province of York ; another 7 & 8 W. III., ch. 38, for Wales ; and 
 a third, 11 Geo. I., ch. 18, for London: whereby it is enacted, 
 that persons within those districts, and liable to those customs, 
 may (if they think proper) dispose of all their personal estates 
 by will ; and the claims of the widow, children, arid other rela- 
 tions, to the contrary, are totally barred. Thus is the old com- 
 mon law now utterly abolished throughout all the kingdom of 
 England, and a man may devise the whole of his chattels as 
 freely as he formerly could his third part or moiety. In dispos- 
 ing of which, he was bound by the custom of many places (as was 
 stated in a former chapter) to remember his lord and the church, 
 by leaving them his two best chattels, which was the original ol 
 heriots and mortuaries ; and afterwards he was left at his own 
 liberty, to bequeath the remainder as he pleased. 
 
 *In case a person made no disposition of such of h.'s [*494 
 goods as were testable, whether that were only part or the whole 
 of them, he was, and is, said to die intestate ; and in such cases 
 it is said, that by the old law the king was entitled to seize upon 
 his goods, as the parens patrice, and general trustee of the king, 
 dora. This prerogative the king continued to exercise for some 
 time by his own ministers of justice ; and probably in the county 
 court, where matters of all kinds were determined : and it was 
 granted as a franchise to many lords of manors, and others, who 
 have to this day a prescriptive right to grant administration to 
 thoir intestate tenants and suitors, in their own courts baron, and 
 oilier courts, or to have their wills there proved, in case they 
 made any disposition. Afterwards, the crown, in favor of the 
 church, invested the prelates with this branch of the prerogative ; 
 which was done, saith Perkins, because it was intended by the 
 law, that spiritual men are of better conscience than laymen, and 
 that they had more knowledge what things would conduce to the 
 benefit of the soul of the deceased. The goods, therefore, of 
 intestates were given to the ordinary by the crown ; and he might 
 seize them, and keep them without wasting, and also might give, 
 sliene, or sell them at his will, and dispose of the money in pios 
 vsiu: and, if he did otherwise, he broke t'ne confidence which 
 
 .^8 
 
594 OF TITLE BY TESTAMENT 
 
 the law reposed in him. So that, properly, the whole interesi 
 and power which were granted to the ordinary, were only those 
 of being the king's almoner within his diocese ; in trust to dis- 
 tribute the intestate's goods in charity to the poor, or in such 
 superstitious uses as the mistaken zeal of the times had denom- 
 inated pious. And, as he had thus the disposition of intestates' 
 effects, the probate of wills of course followed : for it was thought 
 just and natural, that the will of the deceased should be proved 
 to the satisfaction of the prelate, whose right of distributing his 
 chattels for the good of his soul was effectually superseded 
 thereby. 
 
 *495] *The goods of the intestate being thus vested in the 
 ordinary upon the most solemn and conscientious trust, the rev- 
 erend prelates were, therefore, not accountable to any, but to 
 God and themselves, for their conduct. But even in Fleta'stime 
 it was complained " quod ordinarii, hujusmodi bona 7iomine eccle- 
 sice occupantes nullum vel saltern indebitam faciunt distributionem." 
 And to what a length of iniquity this abuse was carried, most 
 evidently appears from a gloss of Pope Innocent IV., written 
 about the year 1250 ; wherein he lays it down for established 
 canon law, that " in Britannia tertia pars bonorum decendentium 
 ab intestato in opus ecclesics et pauperum dispensanda est." Thus, 
 the popish clergy took to themselves (under the name of the 
 church and poor) the whole residue of the deceased's estate, after 
 the partes rationabiles, or two thirds, of the wife and children 
 were deducted ; without paying even his lawful debts, or other 
 charges thereon. For which reason, it was enacted by the stat- 
 ute of Westm. 2, that the ordinary shall be bound to pay the 
 debts of the intestate so far as his goods will extend, in the same 
 manner that executors were bound in case the deceased had left 
 a will : a use more truly pious, than any requiem, or mass for his 
 soul. This was the first check given to that exorbitant power, 
 which the law had entrusted with ordinaries. But, though they 
 were now made liable to the creditors of the intestate for their 
 just and lawful demands ; yet the residuum, after payment of 
 debts, remained still in their hands, to be applied to whatever 
 purposes the conscience of the ordinary should approve. The 
 flagrant abuses of which power occasioned the legislature again 
 to interpose, in order to prevent the ordinaries from keeping any 
 ionger the admihistration in their own hands, or those of their 
 
AND ADMINISTRATION. 595 
 
 immediate dependents: and therefore the statute 31 [*496 
 Edw. III., ch. II, provides, that, in case of intestacy, the ordi- 
 nary shall depute the nearest and most lawful friends of the de- 
 ceased to administer his goods ; which administrators are put upon 
 the same footing, with regard to suits and to accounting, as 
 executors appointed by will. This is the original of administra- 
 tors, as they at present stand ; who are only the officers of the 
 ordinary, appointed by him in pursuance of this statute, which 
 singles out the next and most lawful friend of the intestate ; who 
 is interpreted to be the next of blood that is under no legal dis- 
 abilities. The statute 21, Hen. VIII., ch. 5, enlarges a little more 
 the power of the ecclesiastical judge ; and permits him to grant 
 administration either to the widow, or the next of kin, or to both 
 of them, at his own discretion ; and where two or more persons 
 are in the same degree of kindred, gives the ordinary his election 
 to accept which ever he pleases. 
 
 Upon this footing stands the general law of administrations 
 at this day.^ I shall, in the farther progress of this chapter, 
 mention a few more particulars, with regard to who may, and 
 who may not, be administrator ; and what he is bound to do when 
 he has taken this charge upon him: what has been hitherto 
 remarked only serving to show the original and gradual progress 
 of testaments and administrations ; in what manner the latter 
 was first of all vested in the bishops by the royal indulgence ; 
 and how it was afterwards, by authority of parliament, taken from 
 them in effect, by obliging them to commit all their power to 
 particular persons nominated expressly by the law. 
 
 ' " Thus stood the general law of probate and administration till the year 
 1857, when the Probate Act was passed. That act abolished the jurisdiction 
 of the ecclesiastical and all other courts then existing to grant probate of 
 wills, or letters of administration of the personal estates of intestates. A new 
 court was established, called the Court of Probate, which now exclusively 
 exercises, in the name of Her Majesty, every jurisdiction, and performs all 
 duties relating to the personal estates of deceased persons, formerly exer- 
 cised or performed by the ordinaries, or other courts ; with, however, this ex- 
 ception, as to jurisdiction, that no suits for legacies, or for distribution of 
 residue, are to be entertained. The act abolished the jurisdiction of the old 
 ecclesiastical and other courts, but did not confer upon the new court any 
 jurisdiction over the administration of the estates ; which, indeed, is one ol 
 {he chief functions of the Court of Chancery." (Broom & Hadley's Comm., 
 » 639; see ante, p. 142, n. % post, p. 651, u. 9.) 
 
 In the United States similar jurisdiction is conferred upon special courts, 
 
596 OF TITLE BY TESTAMENT 
 
 I proceei now, secondly, to inquire who may, or may not, 
 make a testament ; or what persons are absolutely obliged by law 
 to die intestate. And this law is entirely prohibitory ; for, regu- 
 larly, every person hath full power and liberty to make a will, 
 that is not under some special prohibition by law or custom: 
 •497] which prohibitions are principally upon three *accounts; 
 for want of sufficient discretion ; for want of sufficient liberty 
 and free will ; and on account of their criminal conduct. 
 
 I. In the first species are to be reckoned infants, under the 
 age of fourteen if males, and twelve if females ; which is the rule 
 of the civil law.^ For, though some of our common lawyers have 
 held that an infant of any age (even four years old) might make 
 a testament, and others have denied that under eighteen he is 
 capable, yet, as the ecclesiastical court is the judge of every tes- 
 tator's capacity, this case must be governed by the rules of the 
 ecclesiastical law. So that no objection can be admitted to the 
 will of an infant of fourteen, merely for want of age : but, if the 
 testator was not of sufficient discretion, whether at the age'of 
 fourteen or four-and twenty, that will overthrow his testament. 
 Madmen, or otherwise non compotes, idiots or natural fools, per- 
 sons grown childish by reason of old age or distemper, such as 
 have their senses besotted with drunkenness, — all these are inca- 
 pable, by reason of mental disability, to make any will so long as 
 such disability lasts.' To this class also may be referred such 
 
 which are termed " probate " or " surrogate " courts, etc. Their jurisdiction 
 is generally limited to the county in which they are established. 
 
 2 By the present English law, a person must be twenty-one years of age, 
 in order to make a valid will, either of real or personal property. 
 
 In the United States, the rule of the common-law, as stated in the text, is 
 still in force, unless changed by statute. But, in some States, statutes have 
 been passed, making 21 years the requisite age for wills of realty or per- 
 sonalty. In New York, a male must be eighteen years old, and a female 
 sixteen, in order to make a valid will of personal estate. 
 
 ^ To be capable of making a will, the testator must be possessed of a 
 sound and disposing mind and memory, so as to be able to make a testa- 
 mentary disposition with sense and judgment, in reference to the situation 
 and amount of his property, and the claims of those who are or might be the 
 objects of his bounty. {Clark \. Fisher, i Paige, 171 ; IIornv.Pullman,^2^■ 
 Y. 269 ; and see 66 N. Y. 144.) But mental derangement may exist, and yet 
 not be so pronounced or extreme as to destroy testamentary capacity. For it 
 is, in general, sufficient that the testator should be able to comprehend the state 
 of his affairs with reasonable exactness, to understand the nature and con- 
 
AND ADMINISTRATION. 597 
 
 persons as are bom deaf, blind, and dumb ; who, au they have 
 always w anted the common inlets of understanding, are incapa- 
 ble of having animum testandi, and their testaments are there- 
 fore void.* 
 
 2. Such persons as are intestable for want of liberty or freedom 
 of will, are by the civil law, of various kinds ; as prisoners, captives, 
 and the like. But thq^law of England does not make such per- 
 sons absolutely intestable ; but only leaves it to the discretion of 
 the court to judge, upon the consideration of their particular cir- 
 cumstances of duress, whether or no such person could be sup- 
 posed to have liberum aifimum testandi. And, with regard to 
 feme-coverts, our law differs still more materially from the civil. 
 Among the Romans there was no distinction ; a married woman 
 was as capable of bequeathing as a feme-sole. But with us a 
 •married woman is not only utterly incapable of devising [*498 
 landsjhtmg excepted out of the statute of wills, 34 & 35 Hen. 
 VIII., ch. 5, but also she is incapable of making a testament of 
 chattels, without the license of her husband. For all her personal 
 chattels are absolutely his ; and he may dispose of her chattels 
 real, or shall have them to himself if he survives her : it would 
 be therefore extremely inconsistent, to give her a power of defeat- 
 ing that provision of the law, by bequeathing those chattels to 
 another. Yet by her husband's license she may make a testa- 
 ment; and the husband, upon marriage, frequently covenants 
 with her friends to allow her that license : but such license is 
 more properly his assent ; for unless it be given to the particular 
 will in question, it will not be a complete testament, even though 
 the husband beforehand hath given her permission to make a will. 
 Yet it shall be sufficient to repel the husband from his general 
 right of administering his wife's effects ; and administration shall 
 
 dition of his property, the effect of the disposition which he intends to 
 make, and his duty towards those dependent upon him; but he must act 
 voluntarily, and not under undue influence, duress, or fraudulent deception. 
 (See Van Guyslingx. Van Kuren, 35 N. Y. 70; Marx v. McGlynn, 88 N. 
 Y. 357; also 127 Pa. St. 564; 45 N.J. Eq. 173, 689, 708, 726; 136 Mass. 
 •45; 76 Mich. 384; 33 N. Y. 619.) But neither habitual drunlcenness, nor 
 the actual stimulus of intoxicating liquors, at the time of executing the will, 
 incapacitates a testator, unless the excitement be such as to disorder his fac- 
 ulties and pervert his judgment. {Peck v. Gary, 27 N. Y. 9; Brown v. 
 Torrey,-ii^ Barb. 583 ; see 45 N. J. Eq. 702 ; 127 Pa. St. 269.) 
 This is now an entirely discarded doctrine. ' 
 
598 OF TITLE BY TESTAMENT 
 
 be granted to her appointee, with such testamentary jiaper 
 annexed. So that, in reality, the woman makes no will at all, 
 but only something like a will ; operating in the nature of an 
 appointment, the execution of which the husband, by his bond, 
 agreement, or covenant, is bound to allow. A distinction similar 
 to which we meet with in the civil law. For though a son who 
 was in potestate parentis could not by any means make a formal 
 and legal testament, even though his father permitted it, yet he 
 might, with the like permission of his father, make what was 
 called a donatio mortis causa. The Queen consort is an excep- 
 tion to fhis general rule, for she may dispose of her chattels by 
 will, without the consent of her lord : and any feme-covert may 
 make her will of goods, which are in her possession in auter droit 
 as executrix or administratrix ; for these can never be the prop- 
 erty of the husband : and, if she has any pin-money or separate 
 maintenance, it is said she may dispose of her savings thereout 
 *499] *by testament, without the control of her husband. But, 
 if a feme-sole makes her will, and afterwards marries, such sub- 
 sequent marriage is esteemed a revocation in law, and entirely 
 vacates the will.^ 
 
 3. Persons incapable of making testaments, on account of 
 their criminal conduct, are, in the first place, all traitors and 
 felons, from the time of conviction ; for then their goods and 
 chattels are no longer at their own disposal, but forfeited to the 
 king. Neither can a felo de se make a will of goods and chattels, 
 for they are forfeited by the act and manner of his death ; but 
 he may make a devise of his lands, for they are not subjected to 
 any forfeiture. Outlaws also, though it be but for debt, are 
 incapable of making a will, so long as the outlawry subsists, for 
 their goods and chattels are forfeited during that time. As for 
 persons guilty of other crimes, short of felony, who are by the 
 civil law precluded from making testaments (as usurers, libellers 
 and others of a worse stamp), by the common law their testa- 
 ments may be good. And in general the rule is, and has been so 
 at least ever since Glanvil's tirne, quod libera sit cujttscunque 
 ultima voluntas. 
 
 ' It is the tendency of modern legislation to give to married women full 
 power to dispose by will of their separate property, both real and personal 
 Statutes of this kind have been passed in nearly all the United States. But, 
 so far as unchanged by statute, the common-law rule is still in forCe in this 
 country. (See ante, p. 158, note 24; p. 499, note i ; p. 500, note 5.) 
 
AND ADMimSTRATION. 599 
 
 Let us next, thirdly, consider what this laSt will and testa- 
 ment is, which almost every one is thus at liberty to make ; or, 
 what are the nature and incidents of a testament. Testaments, 
 both Justinian and Sir Edward Coke agree to be so called, be- 
 cause they are testatio mentis : an etymon which seems to savor 
 too much of the conceit; it being plainly a substantive derived 
 trom the verb testari, inlikema.nner diSjuramentum, incrementum, 
 syid others, from other verbs. The definition of the old Roman 
 lawyers is much better than their etymology ; "voluntatis nostra 
 justa sententia de eo, quod quis post mortem suam fieri velit : " 
 which may be thus rencjered into English, " the legal declaration 
 of a man's intentions, *which he wills to be performed [*500 
 after his death." It is called sententia, to denote the circum- 
 spection and prudence with which it is supposed to be made : it 
 is voluntatis nostra sententia, because its efficacy depends on its 
 declaring the testator's intention, whence in England it is em- 
 phatically styled his will : it is j'usta sententia ; that is, drawn, 
 attested, and published, with all due solemnities and forms of 
 law ; it is de eo, quod quis post mortem suam. fieri velit, because 
 a testament is of no force till after the death of the testator. 
 
 These testaments are divided into two sorts : written, and 
 verbal or nuncupative ; of which the former is committed to 
 writing, the latter depends merely upon oral evidence, being de- 
 clared by the testator in extremis before a sufficient number of 
 witnesses, and afterwards reduced to writing. A codicil, codicil- 
 lus, a little book or writing, is a supplement to a will, or an ad- 
 dition made by the testator, and annexed to, and to be taken as 
 part of, a testament ; being for its explanation, or alteration, or to 
 make some addition to, or else some subtraction from, the for- 
 mer disposition of the testator. This may also be either written 
 or nuncupative. 
 
 But, as nuncupative wills and codicils (which were formerly 
 more in use than at present, when the art of writing is become 
 more universal) are liable to great impositions, and may occasion 
 many perjuries, the statute of frauds, 29 Car. II., ch. 3, hath laid 
 them under many restrictions ; except when made by mariners 
 at sea, and soldiers in actual service. As to all other persons. 
 It enacts: i. that no written will shall be revoked or altered by 
 » subsequent nuncupative one, except the same be in the lifetime 
 of the testator reduced to writing, and read over to him, and ap- 
 
6oo OF TITLE BY TESTAMENT 
 
 proved, ind unless the same be proved to have been so done by 
 the oaths of three witnesses at the least ; who, by statute 4 & 5 
 Ann., ch. 16, must be such as are admissible upon trials at com- 
 mon law. 2. That no nuncupative will shall in anywise be good, 
 where the estate bequeathed exceeds 30/., unless proved by three 
 such witnesses, present at the making thereof (the Roman law 
 requiring seven), and unless they or some of them were specially 
 *501] required to bear *witness thereto by the testator himself ; 
 and unless it was made in his last sickness, in his own habita- 
 tion or dwelling-house, or where he bad been previously resident 
 ten days at the least, except he be surprised with sickness on a 
 journey, or from home, and dies without returning to his dwell- 
 ing. 3. That no nuncupative will shall be proved by the witnesses 
 after six months from the making, unless it were put in writing 
 within six days. Nor shall it be proved till fourteen days aftei 
 the death of the testator, nor till process hath first issued to call 
 in the widow, or next of kin, to contest it, if they think proper. 
 Thus hath the legislature provided against any frauds in setting 
 up nuncupative wills, by so numerous a train of requisites, that 
 the thing itself has fallen into disuse ; and is hardly ever heard 
 of, but in the only instance where favor ought to be shown to it, 
 when the testator is surprised by sudden and violent sickness. 
 The testamentary words must be spoken with an intent to be- 
 queath, not any loose idle discourse in his illness ; for he must 
 require the by-standers to bear witness of such his intention : 
 the will must be made at home, or among his family or friends, 
 unless by unavoidable accidents ; to prevent impositions from 
 strangers : it must be in his last sickness ; for, if he recovers, he 
 may alter his dispositions, and has time to make a written will : 
 it must not be proved at too long a distance from the testator's 
 death, lest the words should escape the memory of the witnesses ; 
 nor yet too hastily and without notice, lest the family of the tes- 
 tator should be put to inconvenience, or surprised." 
 
 As to written wills, they need not any witness of their pub- 
 lication. I speak not here of devises of lands, which are quite of 
 
 ^ The statute i Vict., ch. 26, finally did away with nuncupative wills, except in 
 the case of soldiers in actual service, and mariners or seamen at sea, who may still 
 dispose of their personal estate in this manner. This is also the established rule in 
 New York and many other States. In some States, moreover, a person may make 
 such a will during his last sickness at home, or during a sudden illness away from 
 home of which he dies. (Stimson's Amer, Stat. Law, §§ 2700-2705.) 
 
AND ADMINISTRATION. 601 
 
 a different nature ; being conveyances by statute, unknown to 
 the feudal or common law, and not under the same jurisdiction 
 as personal testaments. But a testament of chattels, written in 
 ihe testator's own hand, though it has neither his name nor seal 
 to it, nor witnesses present at its publication, is good ; provided 
 sufficient proof can be had that it is his handwriting. And 
 though *written in another man's hand, and never signed [*502 
 by the testator, yet, if proved to be according to his instructions 
 and approved by him, it hath been held a good testament of the 
 personal estate. Yet it is the safer and more prudent way, and 
 leaves less in the breast of the ecclesiastical judge, if it be signed 
 or sealed by the testator, and published in the presence of wit- 
 nesses : ' which last was always required in the time of Bracton ; 
 or, rather, he in this respect has implicitly copied the rule of 
 the civil law. 
 
 No testament is of any effect till after the death of the tes- 
 tator. "Nam omne testamentum morte consummatutn est: et 
 voluntas testaioris est ambulatoria usque ad mortem!' And there- 
 fore, if there be many testaments, the last overthrows all the for- 
 mer :' but the republication of a former will revokes one of a 
 latter date, and establishes the first again. 
 
 Hence it follows, that testaments may be avoided three ways : 
 I. If made by a person laboring under any of the incapacities 
 before mentioned : 2. By making another testament of a latter 
 date : and, 3. By cancelling or revoking it. For, though I make 
 a last will and testament irrevocable in the strongest words, yet 
 I am at liberty to revoke it : because my own act or words cannot 
 alter the disposition of law, so as to make that irrevocable which 
 is in its own nature revocable. For this, saith Lord Bacon, would 
 
 ' By the present English law, every will must be attested by two or more 
 witnesses. In the United States, a similar attestation is required, though the 
 number of witnesses varies : — in some, two are required ; in others, three, 
 etc. The formalities requisite to the execution of a will are prescribed by 
 statute in the several States. 
 
 ' But a subsequent testament does not entirely avoid a former one, unless 
 it contain an express clause of revocation, or equivalent expression of inten- 
 tion, or be manifestly inconsistent with the provisions of the one previously 
 made. So far as the provisions of the successive instruments are consistent 
 and reconcilable, they may stand together. {Nelson v. McGiffert, 3 Barb. 
 Ch. 158; Wilson V. Wilson, 8 Cow. 56.) But if a will disposes of all a 
 testator's property, it supersedes all former wills, though it contain no clause 
 of revocation. (Simmons v. Simmons, 26 Barb. 68 ; see ante, p. 500, note 4.) 
 
6o2 OF TITLE BY TESTAMENT 
 
 be for a man to deprive himself of that, which of all other things 
 is most incident to human condition ; and that is, alteration or 
 repentance. It hath also been held, that, without an express 
 revocation, if a man, who hath made his will, afterwards marries 
 and hath a child, this is a presumptive or implied revocation of 
 his former will, which he made in his state of celibacy.' The 
 Romans were also wont to set aside testaments as \>€vixginofficiosa, 
 deficient in natural duty, if they disinherited or totally passed by 
 503*] (without assigning a true and *sufficient reason) any of 
 the children of the testator. But, if the child had any legacy, 
 though ever so small, it was a proof that the testator had not lost 
 his memory or his reason, which otherwise the law presumed ; 
 but was then supposed to have acted thus for some substantial 
 cause : and in such case no querela inofficiosi testamettti was al- 
 lowed. Hence probably has arisen that groundless vulgar error, 
 of the necessity of leaving the heir a shilling, or some other ex- 
 press legacy, in order to disinherit him effectually : whereas the 
 law of England makes no such constrained suppositions of for- 
 getfulness or insanity ; and therefore, though the heir or next 
 of kin be totally omitted, it admits no querela inofficiosi, to set 
 aside such a testament.f 
 
 We are next to consider, fourthly, what is an executor, and 
 what an administrator ; and how they are both to be appointed. 
 
 An executor is he to whom another man commits by will the 
 execution of that his last will and testament. And all persons 
 are capable of being executors, that are capable of making wills, 
 and many others besides ; as feme-coverts and infants : nay, 
 even infants unborri, or in ventre sa mere may be made executors. 
 But no infant can act as such till the age of seventeen years ; 
 till which time administration must be granted to some other, 
 durante minore cetate. In like manner as it may be granted du- 
 rante absentia, or pendente lite ; when the executor is out of the 
 realm, or when a suit is commenced in the ecclesiastical court 
 touching the validity of the will. This appointment of an execu- 
 tor is essential to the making of a will : and it may be perform- 
 ed either by express words, or such as strongly imply the same. 
 But if the testator makes an incomplete will, without naming 
 
 ^ See ante, p. 500, note 5. 
 
 t See Spratt v. Sprait, 76 Mich. 384. In many States of this country it is provided by statute 
 that if a testator omit to provide for his children in his will, they shall take the same shares which 
 they would have received, had he died intestate, unless it appears that the omission was intentional. 
 Like statutes are in force as* to posthumous children. (Stirnson's Amer. Stat. Law, §§ 2842-2844.) 
 
AND ADMINISTRATION. 603 
 
 any executors, or if h(i names incapable persons, or if the execu- 
 tors named refuse to act : in any of these cases, the ordinary 
 must *grant administration cum testamento annexo to [*504 
 some other person ; and then the duty of the administrator, as 
 also when he is constituted only durante minore cetate, Grc, of an- 
 other, is very Kttle different from that of an executor. And this 
 was law so early as the reign of Henry II.; when Glanvil informs 
 us that " testamenti executores esse debent ii, quos testator ad 'hoc 
 elegerit, et quibus curam ipse commiserit ; si vero testator nullos ad 
 hoc nominaverit, possunt propinqui et consanguinei ipsius defuncti 
 ad id faciendum se ingfrere." 
 
 But if the deceased died wholly intestate, without making 
 either will or executors, then general letters of administration 
 must be granted by the ordinary to such administrator as the 
 statutes of Edward the Third and Henry the Eighth, before 
 mentioned, direct. In consequence of which we may observe ; 
 
 1. That the ordinary is compellable to grant administration of 
 the goods and chattels of the wife, to the husband or his repre- 
 sentatives ; and of the husband's effects, to the widow, or next 
 of kin ; but he may grant it to either, or both, at his discretion. 
 
 2. That, among the kindred, those are to be preferred that are 
 the nearest in degree to the intestate ; but of persons in equal 
 degree, the ordinary may take which he pleases. 3. That this 
 nearness or propinquity of degree shall be reckoned according to 
 the computation of the civilians ; and not of the canonists, which 
 the law of England adopts in the descent of real estates ; because, 
 in the civil computation, the intestate himself is the terminus, a 
 quo the several degrees are numbered ; and not the common an- 
 cestor, according to the rule of the canonists. And therefore in 
 the first place the children, or (on failure of children) the parents 
 of the deceased, are entitled to the administration ; both which 
 are indeed in the first degree ; but * with us the children [*505 
 are allowed the preference. Then follow brothers, grandfathers, 
 uncles or nephews (and the females of each class respectively), 
 and lastly, cousins. 4. The half blood is admitted to the admin- 
 istration, as well as the whole, for they are of the kindred of the 
 intestate, and only excluded from inheritances of land upon feudal 
 reasons. Therefore the brother of the half blood shall excluda 
 the uncle of the whole blood ; and the ordinary may grant ad- 
 mmistration to the sister of the half, or the brother of the whole 
 
604 OF TITLE BY TESTAMENT 
 
 blood, at his own discretion. 5. If none of the kindred will take 
 out administration, a creditor may, by custom, do it. 6. If the 
 executor refuses, or dies intestate, the administration may be 
 granted to the residuary legatee, in exclusion of the next of km. 
 7. And lastly, the ordinary may, in defect of all these, commit 
 administration (as he might have done before the statute of Ed- 
 ward III.) to such discreet person as he approves of ; or may 
 grant him letters ad colligendum bona defuncti, which neither 
 makes him executor nor administrator ; his only business being 
 to keep the goods in his safe custody, and to do other acts 
 for the benefit of such as are entitled to the property of the de- 
 ceased. If a bastard, who has no kindred, being nullius filius, or 
 any one else that has no kindred, dies intestate, and without wife 
 or child, it hath formerly been held that the ordinary might seize 
 his goods, and dispose of them in pios usus. But the usual course 
 *506] now is for some one to procure * letters patent, or other 
 authority from the king ; and then the ordinary of course grants 
 administration to such appointee of the crown.^" 
 
 The interest vested in the executor by the will of the deceased, 
 may be continued and kept alive by the will of the same execu- 
 tor : so that the executor of A.'s executor is to all intents and 
 purposes the executor and representative of A. himself ; " but the 
 executor of A.'s administrator, or the administrator of A.'s execu- 
 tor, is not the representative of A. For the power of an execu- 
 tor is founded upon the special confidence and actual appoint- 
 ment of the deceased ; and such executor is therefore allowed to 
 transmit that power to another, in whom he has equal confidence; 
 but the administrator of A. is merely the oiiflcer of the ordinary, 
 prescribed to him by act of parliament, in whom the deceased 
 has reposed no trust at all ; and therefore, on the death of that 
 officer, it results back to the ordinary to appoint another. And, 
 with regard to the administrator of A.'s executor, he has clearly 
 
 " There are statutes, in the several American States, declaring what 
 classes of persons shall be capable of acting as executors or administrators, 
 and providing for their appointment. But there is a general similarity be- 
 tween these provisions and the rules stated in the text. 
 
 " This rule has been changed by statute in a number of the American 
 States, providing that no executor of an executor shall, as such, be au- 
 thorized to administer on the estate of the first testator, but an administr* 
 tor with the will annexed sha 1 be appointed. 
 
AND ADMINISTRATION. 605 
 
 no privity or relation to A. ; being only commissioned to admin- 
 ister the effects of the intestate executor, and not of the original 
 testator. Wherefore, in both these cases, and whenever the 
 course of representation from executor to executor is inter- 
 rupted by any one administration, it is necessary for the 
 ordinary to commit administration afresh, of the goods of the de- 
 ceased not administered by the former executor or administrator. 
 And this administrator de bonis non, is the only legal represen- 
 tative of the deceased in matters of personal property. But he 
 may, as well as an original administrator, have only a limited or 
 jr/^««/ administration committed to his care, viz., of certain spe- 
 cific effects, such as a term of years, and the like ; the rest being 
 committed to others. 
 
 * Having thus shown what is, and who may be, an ex- [*507 
 ecutor or administrator, I proceed now, fifthly and lastly, to in- 
 quire into some few of the principal points of their office and 
 duty. These in general are very much the same in both execu- 
 tors and administrators ; excepting, first, that the executor is 
 bound to perform a will, which an administrator is not, unless 
 where a testament is annexed to his administration, and then he 
 differs still less from an executor : and secondly, that an execu- 
 tor may do many acts before he proves the will, but an adminis- 
 trator may do nothing till letters of administration, are issued; 
 for the former derives his power from the will and not from 
 the probate ; the latter owes his entirely to the appointment of 
 the ordinary. If a stranger takes upon him to act as executor, 
 without any just authority (as by intermeddling with the goods 
 of the deceased and many other transactions), he is called in law 
 an executor of his own wrong (de son tort), and is liable to all the 
 trouble of an executorship, without any of the profits or advan- 
 tages ; but merely doing acts of necessity or humanity, as lock- 
 ing up the goods, or burying the corpse of the deceased, will not 
 amount to such an intermeddling as will charge a man as execu- 
 tor of his own wrong. Such a one cannot bring an action him- 
 self in right of the deceased, but actions may be brought against 
 him. And, in all actions by creditors against such an officious 
 mtruder, he shall be named an executor, generally ; for the most 
 obvious conclusion which strangers can form from his conduct, 
 IS, that he hath a will of the deceased, wherein he is named ex- 
 ecutor, but halh not yet taken probate thereof. He is charge- 
 
6o6 OF TITLE BY TESTAMENT 
 
 able with the debts of the deceased, so far as assets come to his 
 hands ; and, as against creditors in general, shall be allowed all 
 payments made to any other creditor in the same or a superior 
 *508] degree, *himself only excepted. And though, as against 
 the rightful executor or administrator, he cannot plead such pay- 
 ment, yet it shall be allowed him in mitigation of damages ; un- 
 less, perhaps, upon a deficiency of assets, whereby the rightful 
 executor may be prevented from satisfying his own debt. But let 
 us now see what are the power and duty of a rightful executor 
 or administrator. 
 
 1. He must bury the deceased in a manner suitable to the 
 estate which he leaves behind him. Necessary funeral expenses 
 are allowed, previous to all other debts and charges ; but if the 
 executor or administrator be extravagant, it is a species of devas- 
 tation or waste of the substance of the deceased, and shall only 
 be prejudicial to himself, and not- to the creditors or legatees of 
 the deceased. 
 
 2. The executor, or the administrator durante minore (state, 
 or durante absentia, or cum testamento annexo, must prove the 
 will of the deceased : which is done either in common form, 
 which is only upon his own oath before the ordinary, or his sur- 
 rogate ; or per testes, in more solemn form of law, in case the 
 validity of the will be disputed. When the will is so proved, the 
 original must be deposited in the registry of the ordinary ; and 
 a copy thereof in parchment is made out under the seal of the 
 ordinary, and delivered to the executor or administrator, together 
 with a certificate of its having been proved before him ; all which 
 together is usually styled "Ca^ probate. In defect of any will, the 
 person entitled to be administrator must also, at this period, take 
 out letters of administration under the seal of the ordinary; 
 whereby an executorial power to collect and administer, that is, 
 dispose of the goods of the deceased, is vested in him ; and he 
 must, by statute 22 & 23 Car. II., ch. 10, enter into a bond with 
 sureties, faithfully to execute his trust. 
 
 ******** 
 
 3. The executor or administrator is to make an inventory of 
 all the goods and chattels, whether in possession or action, of the 
 deceased ; which he is to deliver in to the ordinary upon oath, if 
 thereunto lawfully required. 
 
 4. He is to collect all the goods and chattels so mventoned ; 
 
AND ADMINISTRATION. 607 
 
 and to that end he has very large powers and interests conferred 
 on liim bylaw; being the representative of the deceased, ar.d 
 having the same property in his goods as the principal had when 
 living, and the same remedies to recover them. And if there be 
 two or more executors, a sale or release by one of them shall be 
 good against all the rest : but in case of administrators it is oth- 
 erwise.'^ Whatever is so recovered, that is of a salable nature 
 and may be converted into ready money, is called assets in the 
 hands of the executor or administrator ; that is sufficient or 
 enough (from the French assez) to make him chargeable to a 
 creditor or legatee, so far as such goods and chattels extend. 
 * Whatever assets so come to his hands he may convert [*511 
 into ready money, to answer the demands that may be made 
 upon him ; which is the next thing to be considered : for, 
 
 5. The executor or administrator must/«y the debts of the 
 deceased. In payment of debts he must observe the rules of 
 priority : otherwise, on deficiency of assets, if he pays those of a 
 lower degree first, he must answer those of a higher out of his 
 own estate. And, first, he may pay all funeral charges, and the 
 expense of proving the will, and the like. Secondly, debts due 
 to the king on record or specialty. Thirdly, such debts as. are 
 by particular statutes to be preferred to all others : as the for- 
 feitures for not burying in woollen, money due upon poor 
 rates, for letters to the post office, and some others. Fourthly, 
 debts of record ; as judgments (docketed according to the stat- 
 ute 4 & 5 Wm. & M., ch. 20), statutes and recognizances. Fifthly, 
 debts due on special contracts ; as for rent (for which the lessor 
 has often a better remedy in his own hands by distraining), or 
 upon bonds, covenants, and the like, under seal. Lastly, debts 
 on simple contracts, viz. upon notes unsealed, and verbal prom- 
 ises." Among these simple contracts, servants' wages are by 
 
 '^ This is no longer the general rule, but one administrator is deemed to 
 possess the power of all. 
 
 IS By a recent English statute, it is provided that all contract debts, 
 whether they arise by .specialty or simple contract, are to be treated as of 
 equal degree. (32 & 33 Vict., ch. 46.) 
 
 In the United States, the administration of the estates of deceased per- 
 sons is commonly made a matter of statutory regulation ; and, in many of the 
 States, the provisions regulating the duties of executors and administrators 
 are very comprehensive and minute. These provisions bear a general re- 
 'emblarce to those of the English law stated in the text, wiich, therefore, 
 
6o8 OF TITLE BY TESTAMENT 
 
 some with reason preferred to any other : and so stood the an- 
 cient law, according to Bracton and Fleta, who reckon among the 
 first debts to be 'paxd^setvitia servientmm et stifiendia famulorum. 
 Among debts of equal degree, the executor or administrator is 
 allowed to pay himself first, by retaining in his hands so much 
 as his debt amounts to. But an executor of his own wrong is 
 not allowed to retain ; for that would tend to encourage creditors 
 '0 strive who should first take possession of the goods of the de- 
 .:eased ; and would besides be taking advantage of his own 
 *512] wrong, which is contrary to the rule of law. If a *credi- 
 tor constitutes his debtor his executor, this is a release or dis- 
 charg ; of the debt, whether the executor acts or no : provided 
 there be assets sufficient to pay the testator's debts : for though 
 this discharge ef the debt shall take place of all legacies, yet it 
 were unfair to defraud the testator's creditors of their just debts 
 by a release which is absolutely voluntary. Also, if no suit is 
 commenced against him, the executor may pay any one creditor 
 in equal degree his whole debt, though he has nothing left for 
 1 he rest : for, without a suit commenced, the executor has no 
 hgal notice of the debt." 
 
 aEford a sufficiently adequate statement of the fundamental principles in this 
 branch of the law, in American as well as in English jurisprudence. In these 
 statutes, priority is also given to claims of certain kinds in the payment of 
 debts. Thus, in New York, it is provided that the debts of the deceased 
 shall be paid in the following order : (i) Debts entitled to a preference under 
 the laws of the United States. (2) Taxes assessed upon the estate of the 
 deceased. (3) Judgments docketed and decrees enrolled against the de- 
 ceased, according to the priority thereof, respectively. (4) All recog- 
 nizances, bonds, sealed instruments, notes, bills, and unliquidated demands 
 and accounts. (2 R. S. 87, § 27.) The statutes of other States are quite 
 similar to this. (See Croswell on Excrs. and Admrs. §§ 396-404.) 
 
 ^* In many of the American States, these rules have been changed by statute. 
 Thus, in New York, it is provided that the claim of an executor or administrator 
 shall not be entitled to any preference over others of the same class ; and claims 
 against an executor are not discharged by his appointment as such, but are to be 
 deemed part of the assets, to be used in the payment of debts and legacies, and 
 distributed among the next of kin. So a bequest in a will of any debt or demand 
 due to the testator by the executor, is invalid as against igreditors. Claims against 
 the deceased are required to be presented within six months after the publica- 
 tion of a notice to that effect, and if allowed are paid ratably, if of the same 
 class. But if any claim is not presented within this time, the executor or adminis- 
 trator may use the residue of assets to pay legacies and distributive shares, and 
 will not be chargeable therefor to such creditor. (2 R. S. 88, § 33 ; 84, § 13 ; 
 891 §§ 34-39 ; for the law of other States, see Croswell on Excrs. and Admrs.) 
 
AND ADMINISTRATION. 609 
 
 6. When the debts are all discharged, the legacies claim the 
 next regard; which are to be paid by the executor so far as his 
 assets will extend ; but he may not give himself the preference 
 herein, as in the case of debts. 
 
 A legacy is a bequest, or gift, of goods and chattels by testa- 
 ment ; and the person to whom it was given is styled the legatee: 
 which every person is capable of being, unless particularly dis- 
 abled by the common law or statutes, as traitors, papists," and 
 some others. This bequest transfers an inchoate property to 
 the legatee ; but the legacy is not perfect without the assent of 
 the executor : for if I have ^general or fecuniaty legacy of 100/., 
 or a specific one of a piece of plate, I cannot in either case take 
 it without the consent of the executor. For in him all the chat- 
 tels are vested ; and it is his business first of all to see whether 
 there is a sufficient fund left to pay the debts of the testator : 
 the rule of equity being, that a man must be just, before he is 
 permitted to be generous ; or, as Bracton expresses the sense of 
 our ancient law, " de bonis defuncti prima deducenda sunt ea qucB 
 sunt necessitatis, et postea qua sunt utilitatis, et ultimo qucB sunt 
 voluntatisr And in case of a deficiency of assets, all ih&general 
 legacies must abate proportionably, in order to pay the debts ; 
 •but a specific legacy (of a piece of plate, a horse, or the [*513 
 like) is not to abate at all, or allow any thing by way of abate- 
 ment, unless there be not sufficient without it. Upon the same 
 principle, if the legatees had been paid their legacies, they are 
 afterwards bound to refund a ratable part, in case debts come 
 in, more than sufficient to exhaust the residuum after the legacies 
 paid. And this law is as old as Bracton, and Fleta, who tells us 
 "siplura sint debita, vel plus legatum fuerit, ad quce catalla de- 
 functi non sufficiant, fiat ubique defalcatio, excepto regis privir 
 Ugior »• 
 
 " This disability is now removed. 
 
 " Legacies are classified as general, specific, and demonstrative. A general 
 legacy is the bequest of a sum of money or article of property, in general 
 terms, without designating any particular fund or chattel as the subject of the 
 gift. A specific legacy is the bequest of a particular article of property, specially 
 designated. (41 N. H. 391 ; 45 N. J. Eq. 461 ; 8 App. Cas. 812 ; 28 N. Y. 61 ; 
 128 Mass. 433 ; 7 Johns. Ch. 258.) A demonstrative legacy is the bequest of 
 a certain amount of money, to be paid out of a particular fund. (Tifft v. Por 
 ter, 8 N. Y. 516; Giddings v. Seward, 16 N. Y. 365.) Thus, the bequest of 
 a sum of money, the amount being stated, or of a horse, of a library, of cloth- 
 39 
 
6io OF TITLE BY TESTAMENT 
 
 If a legatee dies before the testator, the legacy is a lost oi 
 lapsed legacy, and shall sink into the residuum. And if a contin- 
 gent legacy be left to any one, as when he attains, or if he at- 
 
 ing, or of any chattel, thus indefinitely described, would be a general leg- 
 acy. But if the will specified a particular horse owned by the testator, a 
 library in a particular room or book-case, a sum of money in a designated 
 receptacle, the legacy would be specific. If the legacy of a chattel, as a 
 horse, were general, and the testator owned no such property, the executor 
 would be bound to purchase such a chattel, if there were sufficient asKets 
 But if the legacy were specific, it would fail, if the testator had not the 
 property described. An illustration of a demonstrative legacy would lie a 
 bequest of $400, to be paid from the proceeds of the sale of certain property. 
 General legacies are also termed " pecuniary," but the designation is inac- 
 curate, since specific legacies may be pecuniary ; while general legacies are 
 not so necessarily, as the examples already given sufficiently indicate. This 
 distinction between legacies is important, with regard to the doctrine of 
 abatement. This term denotes a proportional reduction of the bequests to 
 various legatees, in case of deficiency of assets. After the payment of 
 debts, if the residue of assets is not sufficient to discharge all the legacies, 
 the specific legacies will be first paid, then the demonstrative, and afterwards 
 the general legacies, until the amount of assets is exhausted. If the lega- 
 cies in any class cannot be paid fully, they will abate proportionally ; but 
 specific legacies may be paid in full, although the general legatees receive 
 nothing. Sometimes, however, certain general legacies are preferred to 
 others of the same class, because they are founded upon a valuable consid- 
 eration ; as, where a general legacy is given in discharge of a debt, or to a 
 widow in lieu of dower, etc. {Bliven v. Seymour, 88 N. Y. 469.) If there 
 be any assets remaining, after the general legacies are fully paid, they will 
 pass to the residuary legatee, if there be one named by the wiU, or will be 
 distributed among the next of kin. 
 
 Legacies are also subject to ademption, as it is termed. As applied to 
 specific legacies, this denotes an extinguishment or destruction of the legacy, 
 by reason of some change or loss of the property bequeathed, or its non-exist- 
 ence. Thus, if the testator had no article of property corresponding with that 
 named in a specific legacy, the legacy would fail, and there would be no clain: 
 against the estate. The same would be true, if the identity of the article 
 were changed after the making of the will ; as if a particular gold cup were 
 bequeathed, and the testator had it made into jewelry, or a piece of cloth 
 into a garment. {Beck w. McGillis, 9 Barb. 35 ; Newcomb v. St. Peter's Church. 
 2 Sandf. Ch. 636.) The rule in relation to demonstrative legacies is diifer- 
 ent. For, if the fund out of which paj'ment is to be made fails, such a legacy 
 will rank among the general legacies. {Florence v. Sands, 4 Redf. 206:) 
 Ademption, as applied to general legacies, has a somewhat different mean- 
 ing ; being used to denote the substitution of some other provision for the 
 person named as legatee, which is deemed a satisfaction of the legacy. This 
 doctrine is applied in courts of equity when a parent bequeaths a legacy 
 to a child or grandchild and iubsequentl}-, before his death, makes a pro- 
 
AND ADMINISTRATION. 61 1 
 
 tains, the, age of twenty-one, and he dies before that time, it is a 
 lapsed legacy. But a legacy to one, to be paid when he attains 
 the age of twenty-one years, is a vested legacy ; an interest which 
 commences inprasenti, although it be solvendum in future : and 
 if the legatee dies before that age, his representative shall re- 
 ceive it out of the testator's personal estate at the same time that 
 it would have become payable, in case the legatee had lived. 
 This distinction is borrowed from the civil law ; and its adoption 
 in our courts is not so much owing to its intrinsic equity, as to 
 its having been before adopted by the ecclesiastical courts. For 
 since the chancery ha^ a concurrent jurisdiction with them, in 
 regard to the recovery of legacies, it was reasonable that there 
 should be a conformity in their determinations ; and that the 
 subject should have the same measure of justice in whatever 
 court he sued. * But, if such legacies be charged upon a real 
 estate, in both cases they shall lapse for the benefit of the heir ; 
 for, with regard to devises affecting lands, the ecclesiastical court 
 hath no concurrent jurisdiction." And, in case of a vested lega- 
 cy, due immediately, and charged on land or money in the funds 
 which yield an immediate profit, *interest shall be pay- [*514 
 able thereon from the testator's death ; but if charged only on 
 the personal estate, which cannot be immediately got in, it shall 
 carry interest only from the end of the year after the death of 
 the testator." 
 
 vision for the same legatee, without expressing it to be in satisfaction of the 
 legacy. If this be equal or greater in amount than the legacy, be certain and 
 not contingent, it will operate to discharge or extinguish the legacy. This is 
 considered as the presumed intention of the testator. {Laitgdon v. Astof^s 
 Excrs., 16 N. Y..g, 34; Mine v. Hine, 39 Barb. 507 ; see ij Pick. 133.) 
 
 " By the English Statute of Wills (i Vict, ch. 26), the real estate comprised 
 in a lapsed devise shall, unless a contrary intention appears in the will, pass to 
 the residuary devisee, if any there be, in preference to the heir-at-law. It is 
 also provided, that a devise or legacy to a child or other descendant shall not 
 lapse, if issue of the devisee or legatee survives the testator, but shall take 
 effect, as if the devisee or legatee had died immediately after the testator, 
 unless a contrary intention appears by the will. Provisions similar to these 
 have also been made by statute in many American States. (Stimson's Amer. 
 Stat. Law, §§ 2822, 2823; see 113 N. Y. 115, 337; 123 Mass. 102.) 
 
 " It is a general rule, in this country as well as in England, that interest is 
 to be reckoned upon the amount of the legacy, from the end of a year after 
 the testator's death. But there are certain exceptional instances, in which 
 interest is estimated from the time of decease ; as when a legacy is giveij 
 in payment of a debt due ; or is given by a parent to his child by way of 
 maintenance, or by a husband to his wife in lieu of dower, etc. {Cooke v. 
 
6i2 OF TITLE BY TESTAMENl 
 
 Besides these formal legacies, contained in a nan's will and 
 testament, there is also permitted another death-bed disposition 
 of property ; which is called a donation causa mortis.^ And that 
 is, when a person in his last sickness, apprehending his dissolu- 
 tion near, delivers or causes to be delivered to another the pos- 
 session of any personal goods (under which have been included 
 bonds, and bills drawn by the deceased upon his banker), to keep 
 in case of his decease. This gift, if the donor dies, needs not 
 the assent 'of his executor : yet it shall not prevail against ci ed- 
 itors ; and is accompanied with this implied trust, that, if the 
 donor lives, the property thereof shall revert to himself, being 
 only given in contemplation of death, or mortis causa. This 
 miethod of donation might have subsisted in a state of nature, 
 being always accompanied with delivery of actual possession ; 
 and so far differs from a testamentary disposition, but seems to 
 have been handed to us from the civil lawyers, who themselves 
 borrowed it from the Greeks. 
 
 7. When all the debts and particular legacies are discharged, 
 the surplus or residuum must be paid to the residuary legatee, if 
 any be appointed by the will ; and if there be none, it was long 
 a settled notion that it devolved to the executor's own use, by 
 virtue of his executorship. But whatever ground there might 
 have been formerly for this opinion, it seems now to be under- 
 stood with this restriction ; that, although where the executor 
 has no legacy at all, the residuum shall in general be his own," 
 *515] yet wherever there is sufficient *on the face of a will (by 
 means of a competent legacy or otherwise), to imply that the tes- 
 tator intended his executor should not have the residue, the un- 
 devised surplus of the estate shall go to the next of kin, the exe- 
 cutor then standing upon exactly the same footing as an admin- 
 is "-rator, concerning whom indeed there formerly was much de- 
 bate, whether or no he could be compelled to make any distribu- 
 tion of the intestate's estate. For, though (after the administra- 
 tion was taken in effect from the ordinary, and transferred to the 
 Meeker, 36 N. Y. 15 ; Kingv. Talbot, 40 N. Y. 76; see 79 N. Y. 136; 113 N. 
 Y. 198; 149 Mass. 82 ; 45 N. J. Eq. 767.) 
 
 1° See ante, p. 547, note i. 
 
 ^ But this rule has been changed ; and it i.s now provided by statute, that 
 any such undisposed of residue shall be distributed among the next of kin, 
 in accordance with the statute of distributions. ' Similar statutes exist in the 
 various American States. 
 
AND ADMINISTRATION. 613 
 
 relations of the deceased) the spiritual court endeavored to com- 
 pel a distribution, and took bonds of the administrator for tiiat 
 purpose, they were prohibited by the temporal courts, and the 
 bonds declared void at law. And the right of the husband not 
 only to administer, but also to enjoy exclusively, the effects of 
 his deceased wife, depends still on this doctrine of the common 
 law: the statute of frauds declaring only, that the statute of dis- 
 tributions does not extend to this case. But now these contro- 
 versies are quite at an end : for, by the statute 22 & 23 Car. II., 
 ch. 10, explained by 29 Car. II., ch. 30, it is enacted, that the sur- 
 plusage of intestates' estates (except of femes-covert, which are 
 left as at common law), shall, after the expiration of one full year 
 from the death of the intestate, be distributed in the following 
 manner : One third shall go to the widow of the intestate, and 
 the residue in equal proportions to his children, or, if dead.'^o 
 their representatives; that is, their lineal descendants : if there 
 are no children or legal representatives subsisting, then a moiety 
 shall go the widow, and a moiety to the next of kindred in equal 
 degree and their representatives :' if no widow, the whole shall 
 go to the children : if neither widow nor children, tbe whole 
 shall be distributed among the next of kin in equal degree and 
 their representatives : but no representatives are admitted, among 
 collaterals, farther than the children of the intestate's brothers 
 and sisters. The next of kindred, here referred to, are to be in- 
 vestigated by the same rules of consanguinity, as those who are 
 entided to letters of administration ; of whom we have sufiSciently 
 spoken.^* *And therefore by this statute the mother, as [*516 
 well as the father, succeeded to all the personal effects of their 
 children, who died intestate and without wife or issue : in exclu- 
 sion of the other sons and daughters, the brothers and sisters of 
 the deceased. And so the law still remains with respect to the 
 father; but by statute i Jac. II., ch. 17, if the father be dead, 
 and any of the children die intestate without wife or issue, in 
 the lifetime of the mother, she and each of the remaining chil- 
 dren, or their representatives, shall divide his effects in equal 
 portions. 
 
 It is obvious to observe, how near a resemblance this statute 
 of distributions bears to our ancient English law, de rationabili 
 
 *' Statutes of distribution of similar scope and purport, but differing some- 
 what in details, have been enacted in the several American States. 
 
6i4 OF TITLE BY TESTAMENT 
 
 parte bonorum ; spoken of at the beginning of this chapter ; and 
 which Sir Edward Coke himself, though he doubted the general- 
 ity of its restraint on the power of devising by will, held to be 
 universally binding (in point of conscience at least) upon the ad- 
 ministrator or executor, in the case of either a total or partial in- 
 testacy. It also bears some resemblance to the Roman law of 
 succession ab intestate; which, and because the act was also 
 penned by an eminent civilian, has occasioned a notion that the 
 parliament of England copied it from the Roman praetor : though, 
 indeed, it is little more than a restoration, with some refinements 
 and regulations, of our old constitutional law ; which prevailed 
 as an established right and custom from the time of King Canute 
 downwards, and many centuries before Justinian's laws were 
 known or heard of in the western parts of Europe. So, likewise, 
 there is another part of the statute of distributions, where di- 
 rections are given that no child of the intestate (except his hf ir- 
 at-law) on whom he settled in his lifetime any estate in lands, 
 or pecuniary portion, equal to the distributive shares of the other 
 children, shall have any parf of the surplusage with theit 
 *617] *brothers and sisters ; but, if the estates so given them, 
 by way of advancement, are not quite equivalent to the other 
 shares, the children so advanced shall now have so much as will 
 make them equal. This just and equitable provision hath been 
 also said to be derived from the collatio bonorum of the imperial 
 law : which it certainly resembles in some points, though it 
 differs widely in others. But it may not be amiss to observe, 
 that with regard to goods and chattels, this is part of the ancient 
 custom of London, of the Province of York, and of our sister 
 kingdom of Scotland : and, with regard to lands descending in 
 co-parcenary, that it hath always been, and still is, the common 
 law of England, under the name of hotchpot. 
 
 Before I quit this subject, I must, however, acknowledge, that 
 the doctrine and limits of representation laid down in the statute 
 of distributions, seem to have been principally borrowed from the 
 civil law : whereby it will sometimes happen, that personal estates 
 are divided per capita, and sometimes per stirpes ; whereas the 
 common law knows no other rule of succession but that per 
 stirpes only. They are divided per capita, to every rnan an equal 
 share, when all the claimants claim in their own rights, as in 
 equal degree of kindred, and not jure reprcBsentaiionis, in the 
 
AND ADMINISTRATION. 615 
 
 right of another person. As, if the next of kin be the intestate's 
 three brothers, A., B. and C; here his effects are divided into 
 three equal portions, and distributed per capita, one to each : 
 but, if one of these brothers. A., had been dead, leaving , three 
 children, and another, B., leaving two ; then the distribution 
 must have been per stirpes ; viz. one third to A.'s three children, 
 another third to B.'s two children ; and the remaining third to C, 
 the surviving brother : yet, if C. had also been dead, without 
 issue, then A.'s and B.'s five children, being all in equal degree 
 to the intestate, would take in their own lights per capita ; \\z^ 
 each of them one fifth jiart 
 
REDRESS OF PRIVATE WRONGS, ETC. 617 
 
 BOOK THE THIRD, 
 
 or PRIVATE WRONGS. 
 CHAPTER I. 
 
 [BL. COMM. — BOOK III. CH. I.J 
 
 Cfthe Redress of Private Wrongs by the mere act of the Parties, 
 
 At the opening of these Commentaries municipal law was in 
 general defined to be, " a rule of civil conduct, prescribed by the 
 supreme power in a state, commanding what is right, and pro- 
 hibiting what is wrong." From hence therefore it followed, that 
 the primary objects of the law are the establishment of rights, 
 and the prohibition of wrongs. And this occasioned the distri- 
 bution of these collections into two general heads ; under the 
 former of which we have already considered the rights that were 
 defined and established, and under the latter are now to consider 
 the wrongs that are forbidden, and redressed by the laws of 
 England. 
 
 In the prosecution of the first of these inquiries, we dis- 
 tinguished rights into two sorts : first, such as concerr , or are 
 annexed to the persons of men, and are then called juta person- 
 arum, or the rights of persons ; which, together with the means 
 of acquiring and losing them, composed the first book of these 
 Commentaries : and secondly, such as a man may acquire 
 over external objects, or things unconnected with his person, 
 which are called /wra; rerum, or the rights of things ; and these, 
 with the means of transferring them from man to man, were 
 the subject of the second book. I am now therefore to pro 
 
6iS OF THE REDRESS OF PRIVATE WRONGS 
 
 ceed to the consideration of wrongs; which for the most 
 part convey to us an idea merely negative, as being nothing 
 else but a privation of right. For which reason it was neces- 
 sary, that before we entered at all into the discussion of wrongs, 
 we should entertain a clear and distinct notion of rights; 
 the contemplation of what \?,jus being necessarily prior to what 
 may be termed injuria, and the definition of fas precedent to 
 that of nefas. 
 
 Wrongs are divisible into two sorts or species '.private wrongs 
 2ir\d public wrongs. The former are an infringement, or priva- 
 tion of the private or civil rights belonging to individuals, con- 
 sidered as individuals ; and are thereupon frequently termed 
 civil injuries : the latter are a breach and violation of public 
 rights and duties, which affect the whole community, con- 
 sidered as a community; and are distinguished by the 
 harsher appellation of crimes and misdemeanors. To investigate 
 the first of these species of wrongs, with their legal rem- 
 edies, will be our employment in the present book ; and 
 the other species will be reserved till the next or concluding 
 one. 
 
 The more effectually to accomplish the redress of private in- 
 juries, courts of justice are instituted in every civilized 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 thtreiore principal^ 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 jus- 
 tice, there is allowed in those cases an extrajudicial or eccentri- 
 cal kind of 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 two several 
 species : first, that which is obtained by the mere act of the 
 parties themselves ; secondly, that which arises from suit or 
 action in courts. 
 
 And, Jirst, of that redress of private injuries, which is obtJUD 
 
BY THE MERE ACT OF TfTE PARTIES. 619 
 
 id 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 defence of one's self, or the mutual and reciprocal de- 
 fence of such as stand in the relations of husband and wife, 
 parent and child, master and servant. In these cases, if the 
 party himself, or any of these his relations, be forcibly attacked 
 in his person or property, it is lawful for him to repel force by 
 force; and the breach of the peace, which happens, is chargeable 
 upon him only who began the affray. For the law, in this case, 
 respects the passions of the human mind; and (when exter- 
 nal violence is offered to a man himself, or those to whom he 
 bears a near connection) makes it lawful in him to do himself 
 that immediate justice, to which he is prompted .by .nature, 
 and which no prudential motives are strong enough to re- 
 strain. It considers that the future process of law is by no 
 means an adequate remedy for injuries accompanied with force ; 
 since it is impossible to say to what wanton lengths of ra- 
 pine or cruelty outrages of this sort might be carried, unless it 
 were permitted a man immediately to oppose one violence 
 with another. Self-defence, therefore, as it is justly called, the 
 primary law of nature, so it is not, neither can it be in fact, 
 taken away by the law of society. In the English law particu- 
 larly, it is held an excuse for breaches of the peace, nay even 
 for homicide itself : but care must be taken, that the resist- 
 ance does not exceed the bounds of mere defence and pre- 
 vention ; for then the defender would himself become an 
 aggressor. 
 
 II. Recaption or reprisal is another species of remedy by the 
 mere act of the party injured. This happens, when any one hath 
 deprived another of his property in goods or chattels personal, 
 or wrongfully detains one's wife, child, or servant : in which case 
 the owner of the goods, and the husband, parent, or master, may 
 lawfully claim and retake them, wherever he happens to find 
 them ; so it be not in a riotous manner, or attended with a breach 
 of the peace. The reason for this is obvious ; since it may fre- 
 
620 OF THE REDRESS OF PRIVATE WRONGS, 
 
 quently happen that the owner may have this only opportunit) 
 of doing himself justice: his goods 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 possession 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, if individuals were once allowed to use 
 private force as a remedy for private injuries, all social justice 
 must cease, the strong would give law to the weak, and every 
 man would revert to a 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 in- 
 stance, 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 justify 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.t 
 
 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 
 possession 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 cases, in which such entry is lawful or otherwise; 
 it will therefore be more fully considered, in a subsequent chap- 
 ter ; being only mentioned in this place for the sake of regular- 
 ity 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 divis- 
 ions. At present I shall only observe, that whatsoever unlaw 
 fully annoys or doth damage to another is a nuisance ; and 
 such nuisance may be abated, that is, taken away or r© 
 
 t In some American States, an owner of goods which have been wrongfully taken from him, 
 may retake them, using no more force than is necessary. (59 N. H. 235; 56 Vt. 703; 148 Mass. 529; 
 see 47 Barb. 592; 11 H. L. C. 621,} 
 
BY THE MERE ACT OF THE PARTIES. 621 
 
 moved, 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.-j- Or if a new gate be erected across the pub- 
 lic highway, which is a common nuisance, any of the king's 
 subjects passing that way, may cut it down and destroy it. 
 And the reason why the law allows this private and summary 
 method of doirig one's self justice, is because injuries of this 
 kind, which obstruct or annoy such things as are of daily 
 convenience and use, jrequire an immediate remedy, and can- 
 not wait for the slow progress of the ordinary forms of 
 justice.^ 
 
 V. A fifth case, in which the law allows a man to be his own 
 avenger, or to minister redress to himself, is that of distraining 
 cattle or goods for non-payment of rent, or other duties ; or, 
 distraining another's cattle damage-feasant, that is, doing damage, 
 or trespassing upon his land. The former intended for the 
 benefit of landlords, to prevent tenants from secreting or with- 
 drawing their effects to his prejudice ; the latter arising from 
 the necessity of the thing itself, as it might otherwise be impos- 
 sible at a future time to ascertain, whose cattle they were that 
 committed the trespass or damage.'' 
 
 These are the several species of remedies which may be had 
 by the mere act of the party injured. I shall next briefly men- 
 tion such as arise from ^^ joint act of all the parties together. 
 And these are only two, accord and arbitration. 
 
 I. Accord is a satisfaction agreed upon between the party 
 injuring, and the party injured ; which, when performed, is a bar 
 
 ■ But a private individual has no right to abate a public nuisance of his own 
 authority, unless it do him a special injury, and then only to the extent that it inter- 
 feres with his rights. He would not, for example, hare a. right to remove every 
 obstruction in a public thoroughfare, but only any particular one by which his right 
 of passage was impeded. The right of abatement can be exercised by a private 
 person only for a private wrong. {Harrower v. Ritson, 37 Barb. 301; see 119 N. Y. 
 226; 59 Wis. 52; 67 Cal. 130.) 
 
 ^ The remedy of distress for non-payment of rent has been abolished in many of 
 the American States by statute. But the right of distress of cattle damage-feasant 
 is still generally recognized. In some States it is governed by special statutory pro- 
 visions. (See 131 Mass. 426; 46 Mich. 460; 74 Ind. 449.) 
 t See antCt p. 5x6, note 4. 
 
622 OF THE REDRESS OF PRIVATE WRONGS, 
 
 of all actions upon this account. As if a man contract to build 
 a house or deliver a horse, and fail in it ; this is an injury, for 
 which the sufferer may have his remedy by action ; but if the 
 party injured accepts a sum of money, or other thing, as a sat- 
 isfaction, this is a redress of that injury, and entirely takes 
 away the action. By several late statutes (particularly 1 1 Geo. 
 II., ch. 19, in case of irregularity in the method of distraining, 
 and 24 Geo. II., ch. 24, in case of mistakes committed by justices 
 of the peace), even tender of sufficient amends to the party in- 
 jured is a bar of all actions, whether he thinks proper to accept 
 such amends or no.' 
 
 II. Arbitration is where the parties, injuring and injured, 
 submit all matters in dispute, concerning any personal chat- 
 tels or personal wrong, to the judgment of two or more arbi- 
 trators ; who are to decide the controversy : and if they do not 
 agree, it is usual to add, that another person be called in as 
 umpire {imperator or impar) to whose sole judgment it is then 
 referred : or frequently there is only one arbitrator origin- 
 ally appointed. This decision, in any of these cases, is called 
 an award. And thereby the question is as fully determined, 
 
 ' An accord must be fully carried out according to its terms, in order to amount 
 to a satisfaction. If not executed, it is not a bar to an action on the claim which it 
 is intended to discharge. (75 N. Y. 574; 20 Wall. 289; 120 U. S. 198.) The 
 accord and satisfaction must, moreover, be advantageous to the creditor. On this 
 ground it is held that if a debt be liquidated or of a fixed and certain amount, the 
 payment and acceptance of a less sum in discharge thereof mM not amount to a 
 satisfaction. (^Bunge v. Koop, 48 N. Y. 225; Foakes v. Beer, 9 App. Cas. 605.) 
 But the rule is otherwise, if any specific article of property is rendered and received 
 in discharge of a debt, though its value is less than the debt; or the note of a third 
 person in full payment of the claim; or additional security as a satisfaction; — in 
 these and like cases the pre-existing debt is discharged. (^Ludington v. Bell, 77 
 N. Y. 138; Kellogg V. Richards, 14 Wend. 116; Conkling v. King, 10 N. Y. 440; 
 Bull V. Bull, 43 Conn. 455.) So part payment of a liquidated demand before it 
 became due, or at some other place than that agreed upon, would be a complete satis- 
 faction, if received as such ; and the same would be true, in other analogous cases, 
 where the accord was founded upon some particular benefit to the creditor, which 
 might serve as an independent consideration. {Goodnow v. Smith, 18 Pick. 414; 
 Rose V. Hall, 26 Ct. 392.) So when there is a bona fide dispute as to the amount 
 due, any sum received in discharge will amount to a satisfaction. {Pierce v. Pierce, 
 25 Barb. 243.) There may be an accord and satisfaction of claims for tort as well 
 as for those in contract. (136 Mass. 503; 31 Minn. 404.) 
 
BY THE MERE ACT OF THE PARTIES. 623 
 
 and the right transferred or settled, as it could have been by 
 the agreement of the parties, or the judgment of a court of jus- 
 tice. But the right of real property cannot thus pass by a mere 
 award : which subtilty in point of form (for it is now reduced 
 to nothing else) had its rise from feudal principles; for, ii 
 this had been permitted, the land might have been aliened col- 
 lusively without the consent of the superior. Yet doubtless an 
 arbitrator may now award a conveyance or a release of land ; 
 and it will be a breach of the arbitration bond to refuse com- 
 pliance. For, though originally the submission to arbitration 
 used to be by word, or, by deed, yet both of these being revo- 
 cable in their nature, it is now become the practice to enter 
 into mutual bonds, with condition to stand to the award or ar- 
 bitration of the arbitrators or umpire therein named. And 
 experience having shown the great use of these peaceable 
 and domestic tribunals, especially in settling matters of account, 
 and other mercantile transactions, which are difficult and al- 
 most impossible to be adjusted on a trial at law ; the legisla- 
 ture has now established the use of them, as well in controversies 
 where causes are depending, as in those where no action is 
 brought ; enacting by statute 9 & 10 Wm. III., ch. 15, that all 
 merchants and others, who desire to end any controversy, suit, 
 or quarrel (for which there is no other remedy but by personal 
 action or suit in equity), may agree, that their submission of 
 the suit to arbitration or umpirage shall be made a rule of 
 any of the king's courts of record, and may insert such agree- 
 ment in their submission, or promise, or condition of the arbi- 
 tration bond : which agreement being proved upon oath by one 
 of the witnesses thereto, the court shall make a rule that such 
 submission and award shall be conclusive : and, after such 
 rule made, the parties disobeying the award shall be liable to 
 be punished, as for a contempt of the court ; unless such 
 iward shall be set aside, for corruption or other misbehavior in 
 the arbitrators or umpire, proved on oath to the court, within 
 one term after the award is made. And, in consequence of 
 this statute, it is now become a considerable part of the busi- 
 ness of the superior courts, to set aside such awards when 
 partially or illegally made ; or to enforce their execution, when 
 
624 REDRJSSS OF PRIVATE WRONGS, ETC 
 
 legal, by the same process of contempt, as is awarded for diso- 
 bedience to those rules and orders, which are issued by the 
 courts themselves.^ 
 
 ♦ This statute has been amended by later enactments, but its general scope 
 and purport have not been materially altered. It is frequently provided by 
 statute in this country, that the persons agreeing upon an arbitration may stip- 
 ulate in the written submission, by which the controversy is presented to the 
 arbitrators selected, that a judgment of a designated court shall be rendered 
 upon the award. The award then becomes enforceable as a regular judg- 
 ment. Methods are also usually prescribed by statute for the rectification of 
 errors in the rendering of the award, or for vacating it on the ground that it 
 was procured by fraud or corruption, or that the arbitrators were guilty of 
 evident partiality, or of misconduct, etc. {Carter v. Carter, 109 Mass. 306; 
 Hall V. Norwalk Ins. Co., 57 Conn. 105 ; N. Y. Lumber Co. v. Schnieder, 
 irgN. Y. 475.) 
 
 It is the general rule in this country that a controversy relating to real 
 estate may be submitted to arbitration, as well as disputes of other kinds. 
 But in some States this is prohibited. Thus in New York it is provided, 
 that no such submission can be made respecting the claim of any person to 
 a freehold estate in lands. (Code Civ. Pro. §§ 2365-2386. Consult, gener- 
 ally, Morse on Arbitration and Award.) 
 
OF COURTS IN GENERAL, 625 
 
 CHAPTER II. 
 
 [bL. COMM. — BOOK III. CH. III.] 
 Of Courts in General. 
 
 The next and principal object of our inquiries is the redress 
 of injuries by suit in courts : wherein the act of the parties and 
 the act of law co-operate ; the act of the parties being neces- 
 sary 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 certain and adequate redress. 
 
 And here it will not be improper to observe, that although in 
 tho several cases of redress by the act of the parties mentionec 
 in a former chapter, the law allows an extra-judicial remedy, yei 
 that does not exclude the ordinary course of justice : but it is only 
 an additional weapon put into the hands of certain persons in 
 particular instances, where natural equity or the peculiar circum- 
 stances of their situation require a more expeditious remedy, than 
 the formai process of any court of judicature can furnish. There- 
 fore, though I may defend myself, or relations, from external 
 violence, I yet am afterwards entitled to an action of assault and 
 battery ; though I may retake my goods, if I have a fair and 
 peaceable opportunity, this power of recaption does not debar 
 me from my action of trover or detinue : I may either enter on 
 the lands, on which I have a right of entry, or may demand pos- 
 session 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 dis- 
 train for rent, or have an action of debt, at my own option ; il 
 I do not distrain my neighbor's cattle damage-feasant, I may 
 compel him by action of trespass to make me a fair satisfaction. 
 And with regard to accords and arbitrations, these, in their 
 nature being merely an agreement or compromise, most indis- 
 putably suppose a previous right of obtaining redress some other 
 way ; which is given up by such agreement. 
 
 41 
 
626 OF COURTS IN GENERAL. 
 
 In all other cases 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 treat- 
 ing of these remedies by suit in courts, I shall pursue the follow- 
 ing 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 private injury ; or, in other words, what injuries are cog- 
 nizable, and how redressed, in each respective species of courts. 
 
 First then, of courts of justice. And herein we will consider, 
 first, their nature and incidents in general ; and then, the sev- 
 eral species of them, erected and acknowledged by the laws of 
 England. 
 
 A court is defined to be a place wherein justice is judicially 
 administered. And, as by our excellent constitution the sole 
 executive 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 created by act of parliament, or letters- 
 patent, or subsisting by prescription (the only methods by which 
 any court of judicature can exist), the king's consent in the, two 
 former is expressly, and in the latter impliedly, given. 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 rep- 
 resented by his judges, whose power is only an emanation of the 
 royal 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 turn 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. A court of record is that, 
 where the acts and judicial proceedings are enrolled in parch- 
 ment for a perpetual memorial and testimony : which rolls are 
 called the records of the court, and are of such high and super- 
 eminent authority, that their truth is not to be called in question 
 
OF COURTS IN GENERAL. 627 
 
 For it is a settled rule and maxim that nothing shall be averred 
 against a record, nor shall any plea, or even proof, be admitted 
 to the contrary, and if the existence of a record be denied, it 
 shall be tried by nothing but itself ; that is, upon bare inspection 
 whether there be any such record or no ; else there would be no 
 end of disputes. But, if there appear any mistake of the clerk in 
 making up such record, the court will direct him to amend it 
 All courts of record, are the king's courts, in right of his crown 
 and royal dignity, and therefore no other court hath authority to 
 fine or imprison; so that the very erection of a new jutis- 
 diction with the" power of fine or imprisonment makes it instantly 
 a court of record. A court not of record is the court of a private 
 man ; whom the law will not intrust with any discretionary 
 power over the fortune or liberty of his fellow-subjects.' Such 
 are the courts-baron incident to every manor, and other inferior 
 jurisdictions : where the proceedings are not enrolled or record- 
 ed ; but as well their existence as the truth of the matters therein 
 contained shall, if disputed, be tried and determined by a jury. 
 These can hold no plea of matters cognizable by the common law, 
 unless under the value of 40s. nor of any forcible injury whatso- 
 ever, not having any process to arrest the person of the defendant. 
 In every court there must be at least three constituent parts, 
 i\it actor, reus ■as\.di judex : the actor, or plaintiff, who complains 
 of an injury .done ; the reus, or defendant, who is called upon to 
 make satisfaction for it ; and the judex, or judicial power, which 
 is to examine the truth of the fact, to determine the law arising 
 upon that fact, and, if any injury appears to have been done, to 
 ascertain, and by its officers to apply the remedy. It is also 
 usual in the superior courts to have attorneys, and advocates or 
 counsel, as assistants. 
 
 An attorney-at-law answers to the procurator, or proctor, of 
 the civilians and canonists. And he is one who is put in the 
 place, stead, or turn of ahother, to manage his matters of law. 
 Formerly every suitor was obliged to appear in person, to prose- 
 cute or defend his suit (according to the old Gothic constitution), 
 unless by special license under the king's letters patent. This 
 
 ' Courts not of record in the United States cannot be defined as " the courts 
 of private men." It is sufficient to describe them as inferior tribunals, with- 
 out cleric or seal, whose proceedings are informally recorded. Courts of 
 justices of the peace generally come within this category. 
 
C2 8 OF COURTS IN GENERAL. 
 
 is still the law in criminal cases.^ And an idiot cannot to this 
 day appear, by attorney, but in person, for he hath not discretion 
 to enable him to appoint a proper substitute: and upon his 
 being brought before the court in so defenceless a condition, 
 the judges are bound to take care of his interest, and they shall 
 admit the best plea in his behalf that any one present can sug- 
 gest." But, as in the Roman law, " atm olim in usu fuisaet, al- 
 terius nomine agi nofi fosse, sed, quia hoc nofi minimam incom- 
 moditatem habebat coiperunt homines per procuratores litigare," so 
 with us, upon the same principle of convenience, it is now per- 
 mitted in general, by divers ancient statutes, whereof the first is 
 statute Westm. 2, ch. 10, that attorneys may be made to prose- 
 ecute or defend any action in the absence of the parties to the 
 suit. These attorneys are now formed into a regular corps ; 
 they are admitted to the execution of their office by the superior 
 courts of Westminster-hall ; and are in all points officers of the 
 respective courts of which they are admitted ; and, as they have 
 had many privileges on account of their attendance there, so 
 they are peculiarly subject to the censure and animadversion of 
 the judges. No man can practice as an attorney in any of those 
 courts, but such as is admitted and sworn an attorney of that par- 
 ticular court : an attorney of the court of king's bench cannot 
 practice in the court of common pleas ; nor vice versa.^ To practice 
 in the court of chancery, it is also necessary to be admitted a 
 solicitor therein : and by the statute 22 Geo. II., ch. 46, no per- 
 son shall act as an attorney at the court of quarter sessions, but 
 such as has been regularly admitted in some superior court of 
 record. So early as the statute 4 Henry IV., ch. 18, it was en- 
 acted that attorneys should be examined by the judges, and none 
 admitted but such as were virtuous, learned, and sworn to do 
 their duty. And many subsequent statutes have laid them under 
 farther regulations. 
 
 2 But now in England, counsel is allowed, in criminal cases, as in the 
 United States. 
 
 3 But if a person has been judicially declared to be of unsound mind, and 
 lias been placed under the guardianship of a committee, he will be repre- 
 sented in suits at law by such committee, who may employ counsel ; and 
 probably an idiot would be allowed, at the present day, to appear by attorney, 
 though no committee were appointed. (See Lang v. Wkidden, 2 N. H. 435-) 
 
 * But now that the Supreme Court of Judicature has been established (see 
 noteg, /oj/), solicitors are admitted after due examination as officers of this 
 court, and may practice in any of its divisions and also in the ecclesiastical 
 courts. (40 & 41 Vict. o. 25 ; 44 & 45 id. i,. 68, ». 24.) The single name solic- 
 itor has superseded the different names, attorney, solicitor, and proctor. 
 
OF COURTS IN GENERAL. 629 
 
 Of advocates, or (as we generally call them) counsel, there 
 are two species or degrees ; barristers, and Serjeants. The for- 
 mer are admitted after a considerable period of study, or at least 
 standing, in the inns of court ; and are in our old books styled 
 apprentices, apprenticii ad legem, being looked upon as merely 
 learners, and not qualified to execute the full office of an advocate 
 till they were sixteen years' standing ; at which time, according 
 to Fortescue, they might be called to the state and Jegree of 
 Serjeants, or servientes ad legem. How ancient and honorable 
 this state and degree is, with the form, splendor, and profits at- 
 tending it, hath been so fully displayed by many learned writers, 
 that it need not be here enlarged on. I shall only observe, that 
 Serjeants at law are bound by a solemn oath to do their duty to 
 their clients: and that by custom the judges of the courts of 
 Westminster are always admitted into this venerable order, 
 before they are advanced to the bench ; the original of which 
 was probably to qualify the puisne barons of the exchequer to 
 become justices of assize, according to the exigence of the statute 
 of 14 Edw. III., ch. 16. From both these degrees some are 
 usually selected to be his majesty's counsel learned in the law, 
 the two principal of whom are called his attorney, and solicitor 
 general. The first king's counsel, under the degree of Serjeant, 
 was Sir Francis Bacon, who was made so honoris causd, without 
 either patent or fee ; so that the first of the modern order (who 
 are now the sworn servants of the crown, with a standing salary) 
 seems to have been Sir Francis North, afterwards lord keeper of 
 the great seal to King Charles II. These king's counsel answer, 
 in some measure, to the advocates of the revenue, advocati fisci, 
 among the Romans. For they must not be employed in any cause 
 against the crown without special license ; ° in which restriction 
 they agree with the advocates of the fisc : but in the imperial 
 law the prohibition was carried still further, and perhaps was 
 more for the dignity of the sovereign : for, excepting some pecu- 
 liar causes, the fiscal advocates were not permitted tc be at all 
 concerned in private suits between subject and subject. A 
 
 ' But license to appear for a plaintiff, in a suit against the crown, or to 
 aefend a prisoner accused of crime, is never refused, and may be obtained 
 by the payment of a small fee. King's counsel do not act -wholly in behall 
 'A the crown, but may be retained in private causes, in the same way as 
 other barristers. 
 
630 OF COURTS IN GENERAL. 
 
 custom has of late years prevailed of granting letters pateni 
 of precedence to such barristers as the crown thinks proper 
 to honor with that mark of distinction : whereby they are 
 entitled to such rank and pre-audience as are assigned in 
 their respective patents ; sometimes next after the king's 
 attorney-general, but usually next after his majesty's counsel then 
 being. These (as well as the queen's attorney and solicitor- 
 general) rank promiscuously with the king's counsel, and together 
 with them sit within the bar of the respective courts ; but re- 
 ceive no salaries, and are not sworn ; and therefore are at liberty 
 to be retained in causes against the crown. And all other Ser- 
 jeants and barristers indiscriminately may take upon them the 
 protection and defence of any suitors, whether plaintiff or defend 
 ant ; who are therefore called their clients, like the dependents 
 upon the ancient Roman orators. Those indeed practised ^ra/w, 
 for honor merely, or at most for the sake of gaining influence : 
 and so likewise it is established with us, that a counsel can main- 
 tain no action for his fees ; which are given, not as locatio vel 
 conductio, but as quiddam honorarium ; not as a salary or hire, 
 but as a mere gratuity, which a counsellor cannot demand with- 
 out doing wrong to his reputation : " as is also laid down with 
 regard to advocates in the civil law, whose honorarium was 
 directed by a decree of the senate not to exceed in any case ten 
 thousand sesterces, or about 80/. of English money. And, in 
 order to encourage due freedom of speech in the lawful defence of 
 their clients, and at the same time to give check to the unseem- 
 ly licentiousness of prostitute and illiberal men (a few of whom 
 may sometimes insinuate themselves even into the most honor- 
 able professions), it hath been holden that a counsel is not an- 
 swerable for any matter by him spoken, relative to the cause in 
 hand, and suggested in his client's instructions ; although it 
 should reflect upon the reputation of another, and even prove 
 absolutely groundless : but if he mentions an untruth of his own 
 invention, or even upon instructions, if it be impertinent to the; 
 
 ^ In the United States, the English distinction between attorneys and barristers, 
 has not been retained, except in the State of New Jersey, and members of the legal 
 profession act both as attorneys and counsellors. For services rendered in either 
 capacity they may enter into valid agreements with their clients as to the amount of 
 fees to be paid; or, if there be no express agreement, they will be entitled to receive 
 the reasonable value of their services upon an implied contract. (See Queen v. 
 Doutre, 9 App. Cas. 745; 40 N. J. L. 195; 48 id. 610; 26 Wend. 451; and post, p. 
 905, note 8.) 
 
PUBLIC COUR TS OF COMMON LA W, ETC. 63 1 
 
 cause in hand he is then liable to an action from the party in- 
 jured.' And counsel guilty of deceit or collusion are punishable 
 by the statute Westm. i. 3 Edw. I., ch. 28, with imprisonment 
 for a year and a day, and perpetual silence in the courts ; a pun- 
 ishment still sometimes inflicted for gross misdemeanors in 
 pi-actice. 
 
 CHAPTER III, 
 
 [bL. COMM. — BOOK HI. CH. IV.J 
 
 Of the Public Courts of Common Law and Equity. 
 
 We are next to consider the several species and distinctions 
 of courts of justice, which, are acknowledged and used in this 
 kingdom. And these are, either such as are of public and gene- 
 ral jurisdiction throughout the whole realm ; or such as are only 
 of a private and special jurisdiction in some particular parts of 
 it. Of the former there are three sorts ; the universally estab- 
 
 ' (See Garr v. Selden, 4 N. Y. 91 ; Gilbert v. People, i Den. 41 ; Marsh 
 V. Ellsworth, 50 N. Y. 309; Munster v. Lamb, 11 Q. B. D. 588.) 
 
 " Every client has a right to the exercise, on the part of his attorney" (in 
 the United States, this would apply to all lawyers), " of care and diligence in 
 the execution of the business entrusted to him, and to a fair average amount 
 of professional skill and knowledge ; and if attorneys have not as much of 
 these qualities as they ought to possess, or if, having them, they have neglected 
 to employ them, the law makes them responsible for the loss which has ac- 
 crued to their clients from their deficiencies. It is the duty of every attor- 
 ney and solicitor to act with fidelity to his client, and to keep the secrets of 
 the latter. ' It would be extremely difficult,' observes Tindal, C. J. [Godefroy 
 V. Dalton, 6 Bingham, 468), ' to define the exact amount of skill and diligence 
 which an attorney undertakes to furnish in the conduct of a cause. The 
 cases, however, appear to establish in general, that he is liable for the con- 
 sequence of ignorance or non-observance of the rules of practice of his 
 court, for the want of care in the preparation of the cause for trial, or of at- 
 tendance thereon with his witnesses, etc. ; but he is not answerable for error 
 in judgment upon points of new occurrence, or of nice or doubtful construc- 
 tion.'" (Addison on Torts, § 570 [Amer. ed.] ; see 44 Cal. 542 ; 55 111. 151 ; 
 57 Pa. St. 161 ; 4 Peters, 172.) 
 
632 OF THE PUBLIC COURTS 
 
 lished courts of common law and equity ; the ecclesiastical 
 courts ; and courts maritime. And, first, of such piibHc courts 
 as are courts of common law and equity. 
 
 The policy of our ancient constitution, as regulated and estab- 
 lished by the great Alfred, was to bring justice home to every 
 man's door, by constituting as many courts of judicatureas there 
 are manors and townships in the kingdom ; wherein injuries were 
 redressed in an easy and expeditious manner, by the suffrage of 
 neighbors and friends. These little courts, however, communi- 
 cated with others of a larger jurisdiction, and those with others 
 of a still greater power ; ascending gradually from the lowest to 
 the supreme courts, which were respectively constituted to cor- 
 rect the errors of the inferior ones, and to determine such causes 
 as by reason of their weight and difficulty demanded a more sol- 
 emn discussion. The course of justice flowing in large streams 
 from the king, as the fountain, to his superior courts of record ; 
 and being then subdivided into smaller channels, till the whole 
 and every part of the kingdom were plentifully watered and re- 
 freshed. An institution that seems highly agreeable to the dic- 
 tates of natural reason, as well as of more enlightened policy. 
 These uiferior courts, at least the name and form of them, 
 still continue in our legal constitution ; but as the superior 
 courts of record have in practice obtained a concurrent original 
 jurisdiction with these ; and as there is, besides, a power of re- 
 moving plaints or actions thither from all the inferior jurisdic- 
 tions ; upon these accounts (amongst others) it has happened 
 that these petty tribunals have fallen into decay, and almost into 
 oblivion ; whether for the better or the worse, may be/ matter of 
 some speculation, when we consider on the one hand the increase 
 of expense and delay, and on the other the more able and im- 
 partial decision, that follow from this change of jurisdiction.^ 
 
 These several species of common law courts, which, though 
 dispersed universally throughout the realm, are nevertheless of 
 a partial j urisdiction, and confined to particular districts, yet 
 communicate with, and, as it were, are members of, the superior 
 
 1 There is here omitted from the text that portion of this chapter which 
 relates to various courts of inferior jurisdiction, which have now become ob- 
 solete. The chief courts of inferior jurisdiction in civil cases, now existing, 
 are the county courts ; but the nature and extent of their jurisdiction has 
 been much changed since the time of Blackstone. (See 51 & S3 Vict. c. 43.) 
 
OF COMMON LA W AND EQUITY. 633 
 
 courts of a more extended and general nature ; which are calcu- 
 lated for the administration of redress, not in any one lordship, 
 hundred, or county only, but throughout the whole kingdom at 
 large. Of which sort is — 
 
 I. The court of common pleas, or, as it is frequently termed 
 in law, the court of common bench. 
 
 By the ancient Saxon constitution, there was only one supe- 
 rior court of justice in the kingdom ; and that court had cogni- 
 zance both of civil and spiritual causes : viz., the wittena-gemote, 
 or general council, which assembled annually or oftener, wher- 
 ever the king kept his ^Christmas, Easter or Whitsuntide, as well 
 to do private justice as to consult upon public business. At the 
 Conquest the ecclesiastical jurisdiction was diverted into another 
 chaimel ; and the Conqueror, fearing danger from these annual 
 parliaments, contrived also to separate their ministerial power, 
 as judges, from their deliberative, as counsellors to the crown. 
 He therefore established a constant court in his own hall, thence 
 called by Bracton and other ancient authors, aula regia, or aula 
 regis. -This court was composed of the king's great officers of 
 state resident in his palace, and usually attendant on his person : 
 such as the lord high constable and lord mareschal, who chiefly 
 presided in matters of honor and of arms ; determining accord- 
 ing to the law miHtary and the law of nations. Besides these, 
 there were the lord high steward, and lord great chamberlain ; 
 the steward of the household ; the lord chancellor, whose pecu- 
 liar business it was to keep the king's seal, and examine all such 
 writs, grants and letters, as were to pass under that authority ; 
 and the lord high treasurer, who was the principal adviser in all 
 matters relating to the revenue. These high officers were assist- 
 ed by certain persons learned in the laws, who were called the 
 king's justiciars, or justices ; and by the greater barons of parlia- 
 ment, all of whom had a seat in the aula regia, and formed a kind 
 of court of appeal, or rather of advice, in matters of great mo- 
 ment and difficulty. All these in their several departments trans- 
 acted all secular business, both criminal and civil, and likewise 
 the matters of the revenue ; and over all presided one special 
 magistrate, called the chief justiciar, or capitalis justiciarius toti- 
 us Anglia; who was also the principal minister of state, the 
 second man in the kingdom, and by virtue of his office guardian 
 pf the realm in the king's absence. And this officer it was who 
 
634 OF THE PUBLIC COURTS 
 
 principally determined all the vast variety of causes that arose 
 in this extensive jurisdiction ; and from the plenitude of his 
 power grew at length both obnoxious to the people, and danger- 
 ous to the government which employed him. 
 
 This great universal court being bound to follow the king's 
 household in all his progresses and expeditions, the trial of com- 
 mon causes therein was found very burthensome to the subject 
 Wherefore King John, who dreaded also the power of the justi- 
 ciar, very readily consented to that article which now forms the 
 eleventh chapter of magna charta, and enacts, " that communia 
 placita non sequantur curiam regis, sed teneantur in aliquo loco 
 certo." This certain place was established in Westminster-hall, 
 the place where the azila regis originally sat, when the king re- 
 sided in that city ; and there it hath ever since continued. And 
 the court being thus rendered fixed and stationary, the judge be- 
 came so too, and a chief, with other justices of the common 
 pleas, was thereupon appointed ; with jurisdiction to hear and 
 determine all pleas of land, and injuries, merely civil, between 
 subject and subject. Which critical establishment of this prin- 
 cipal court of common law, at that particular juncture and that 
 particular place, gave rise to the inns of court in its neighbor- 
 hood ; and thereby collecting together the whole body of the 
 common lawyers, enabled the law itself to withstand the attacks 
 of the canonists and civilians, who labored to extirpate and 
 destroy it. 
 
 The aitla regia being thus stripped of so considerable a branch 
 of its jurisdiction, and the power of the chief justiciar being also 
 considerably curbed by many articles in the great charter, the 
 authority of both began to decline apace under the long and 
 troublesome reign of King Henry III. And, in further pursu 
 ance of this example, the other several offices of the chief justi- 
 ciar were under Edward the First (who new-modelled the whola 
 fiame of our judicial polity) subdivided and broken into distinct 
 courts of judicature. A court of chivalry was erected, over 
 which the constable and mareschal presided : as did the steward 
 of the household over another, constituted to regulate the king's 
 domestic servants. The high steward, with the barons of par- 
 liament, formed an august tribunal for the trial of delinquent 
 peers ; and the barons reserved to themselves in Parliament the 
 riglit of reviewing the sentences of other courts in the last r© 
 
OF COMMON LAW AND EQUITY. 635 
 
 sort. The distribution of common justice between man and man 
 was thrown into so provident an order, that the great judicial 
 officers were made to form a check upon each other : the court 
 of chancery issuing all original writs under the great seal to the 
 other courts ; the common pleas being allowed to determine all 
 causes between private subjects ; the exchequer managing the 
 king's revenue ; and the court of king's bench retaining all the 
 jurisdiction which was not cantoned out to other courts, and par- 
 ticularly the superintendence of all the rest by way of appeal : 
 and the sole cognizance of pleas of the crown or criminal causes. 
 For pleas or suits are fegularly divided into two sorts : pleas of 
 the crown, which comprehend all crimes and misdemeanors, 
 wherein the king (on behalf of the public) is the plaintiff ; and 
 common pleas, which include all civil actions, depending between 
 subject and subject. The former of these were the proper ob- 
 ject of the jurisdiction of the court of king's bench : the latter 
 of the court of common pleas : which is a court of record, and 
 is styled by Sir Edward Coke the lock and key of the common 
 law ; for herein only can real actions, that is, actions which con- 
 cern the right of freehold or the realty, be originally brought: 
 and all other, or personal, pleas between man and man, are likewise 
 here determined ; though in most of them the king's bench has 
 also a concurrent authority. 
 
 The judges of this court are at present four in number, one 
 chief and \h.xt&puisni justices, created by the king's letters-pat- 
 ent, who sit every day in the four terms to hear and determine 
 all matters of law arising in civil causes, whether real, personal, 
 or mixed and compounded of both.^ These it takes cognizance 
 of, as well originally, as upon removal from the inferior courts 
 before-mentioned. But a writ of error, in the nature of an ap- 
 peal, lies from this court into the court of king's bench. 
 
 " The number of judges in the superior courts of common-law, the King's 
 Bench, the Common Pleas, and the Exchequer, was subsequently increased 
 to six. In the two former c6urts, there was a chief-justice and five puisnS 
 justices ; in the latter, a chief-baron and five puisnfe barons, a different desig- 
 nationbeingadoptedin this court. The King's Bench is still virtuallyin existence, 
 though, as explained hereafter in note (9), there has been a complete reor- 
 ganization in the judicial system of England. 
 
 It became also the practice to take writs of error to the Exchequer 
 Chamber, instead of the King's Bench ; the Exchequer Chamber consisting 
 of the judges of the two courts in which the case was not first tried. 
 
636 OF THE PUBLIC COURTS 
 
 II. The court of king's bench (so called because the king 
 used formerly to sit there in person, the style of the court still 
 being coram ipso rege) is the supreme court of common law in 
 the kingdom; consisting of a chief justice and three /«wk^ jus- 
 tices, who are by their office the sovereign conservators of the 
 peace, and supreme coroners of the land. Yet, though the king 
 himself used to sit in this court, and still is supposed so to do ; 
 he did not, neither by law is he empowered to determine any 
 cause or motion, but by the mouth of his judges, to whom he hath 
 committed his whole judicial authority. 
 
 This court, which (as we have said) is the remnant of the 
 mila regia, is not, nor can be, from the very nature and constitu- 
 tion of it, fixed to any certain place, but may follow the king's 
 person wherever he goes : for which reason all process issuing 
 out of this court in the king's name is returnable " ubicunque 
 fuerimus in A7tglia." It hath indeed, for some centuries past, 
 usually sat at Westminster, being an ancient palace of the crown ; 
 but might remove with the king to York or Exeter, if he thought 
 proper to command it. And we find that, after Edward I. had 
 conquered Scotland, it actually sat at Roxburgh. And this 
 movable quality, as well as its dignity and power, are fully ex- 
 pressed by Bracton, when he says that the justices of this court 
 are " capitales, generales, pei'petui, et majores ; a latere regis resi- 
 dentes, qui omnium aliorum corrigere tenentur injurias, et errores'' 
 And it is moreover especially provided in the flr^?(r«/«j«/^>-car^a.f, 
 that the king's chancellor, and the justices of his bench, shall 
 follow him, so that he may have at all times near unto him some 
 that be learned in the laws. 
 
 The jurisdiction of this court is very high and transcendent. 
 It keeps all inferior jurisdictions within the bounds of their au- 
 thority, and may either remove their proceedings to be deter- 
 mined here, or prohibit their progress below. It superintends 
 all civil corporations in the kingdom. It commands magistrates 
 and others to do what their duty requires, in every case where 
 there is no other specific remedy. It protects the hberty of the 
 subject, by speedy and summary interposition. It takes cogni- 
 zance both of criminal and civil causes ; the former in what is 
 called the crown-?ide or crown-office ; the latter in the plea-side 
 of the court. The jurisdiction of the crown-side it is not our 
 present business to consider : that will be more properly dis- 
 
OF COMMON LA W AND EQUITY. 637 
 
 cussed in the ensuing book. But on the plea-side, or civil 
 branch, it hath an original jurisdiction and cognizance of all ac- 
 tions of trespass, or other injury alleged to be committed vi et 
 armis ; of actions for forgery of deeds, maintenance, conspiracy, 
 deceit, and actions on the case which allege any falsity or fraud ; 
 all of which savor of a criminal nature, although the action is 
 brought for a civil remedy ; and make the defendant liable in 
 strictness to pay a fine to the king, as well as damages to the 
 injured party. The same doctrine is also now extended to all 
 actions on the case whatsoever : but no action of debt or detinue, 
 or other mere civil action, can by the common law be prosecuted 
 by any subject in this court, by original writ out of chancery ; 
 though an action of debt, given by statute, may be brought in the 
 king's bench as well as in the common pleas. And yet this 
 court might always have held plea of any civil action (other than 
 actions real) p/ovided the defendant was an officer of the court ; 
 or in the custody of the marshal, or prison-keeper, of this court ; 
 for a breach of the peace or any other offence. And, in process 
 of time, it began by a fiction to hold plea of all personal actions 
 whatsoever, and has continued to do so for ages : it being sur- 
 mised that the defendant is arrested for a supposed trespass, 
 which he never has in reality committed ; and, being thus in the 
 custody of the marshal of the court, the plaintiff is at liberty to 
 proceed against him for any other personal injury : which sur- 
 mise, of being in the marshal's custody, the defendant is not at 
 liberty to dispute. And these fictions of law, though at first they 
 may startle the student, he will find upon further consideration 
 to be highly beneficial and useful ; especially as this maxim is 
 ever invariably observed, that no fiction shall extend to work an 
 injury ; its proper operation being to prevent a mischief, or rem- 
 edy an inconvenience, that might result from the general rule of 
 law. So true it is, that in fictione juris semper subsistit cequitas. 
 In the present case, it gives the suitor his choice of more than 
 one tribunal, before which he may institute his action ; and pre- 
 vents the circuity and delay of justice, by allowing that suit to 
 be originally, and in the first instance, commenced in this court, 
 which, after a determination in another, might ultimately be 
 brought before it on a writ of error. 
 
 For this court is likewise a court of appeal, into which may be 
 removed bv a writ of error all determinations of the court oi 
 
638 OF THE PUBLIC COURTS 
 
 common pleas, and of all inferior courts of record in England. 
 Yet even this so high and honorable court is not the dernier re- 
 sort of the subject ; for, if he be not satisfied with any determina- 
 tion here, he may remove it by writ of error into the house of 
 lords, or the court of exchequer chamber, as the case may 
 happen, according to the nature of the suit, and the manner in 
 which it has been prosecuted. 
 
 III. The court of exchequer is inferior in rank not only to 
 the court of king's bench, but to the common pleas also : but I 
 have chosen to consider it in this order, on account of its double 
 capacity, as a court of law and a court of equity also.^ It is 
 a very ancient court of record, set up by William the Conqueror, 
 as a part of tne aula regia, though regulated and reduced to its 
 present order by King Edward I.; and intended principally to or 
 der the revenues of the crown, and to recover the King's debts and 
 duties. It is called the exchequer, jcrtnrcA^rzaw, from the checked 
 cloth, resembling a chess-board, which covers the table there : 
 and on which, when certain of the king's accounts are made up, 
 the sums are marked and scored with counters. It consists of 
 two divisions : the receipt of the exchequer, which manages the 
 royal revenue, and with which these commentaries have no con- 
 cern : and the court or judicial part of it, which is again subdi- 
 vided into a court of equity, and a court of common law. 
 
 The court of equity is held in the exchequer chamber before 
 the lord treasurer, the chancellor of the exchequer, the chief 
 baron, and three /«w«^ ones. These Mr. Selden conjectures to 
 have been anciently made out of such as were barons of the king- 
 dom, or parliamentary barons ; and thence to have derived their 
 name ; which conjecture receives great strength from Bracton's 
 explanation of magna charta, ch. 14, which directs that the earls 
 
 8 But the practice was subsequently changed, so that appeals from either 
 of the three superior courts of common-law were taken, in the first instance, 
 to the court of Exchequer Chamber, which, for the hearing of an appeal 
 from one of these courts, consisted of the judges of the other two courts. 
 Thus, if an appeal were taken from the Queen's Bench, the Exchequer 
 Chamber would be composed of the judges of the Common Pleas and the 
 Exchequer. From the Exchequer Chamber, an appeal might be taken to 
 the House of Lords. But the recent reorganization of the system of courts, 
 has effected a change in this long established practice. (See post, note 9. 
 
 * But the equitable jurisdiction of the court of exchequer was, bj 
 statute i Vict., ch. 5, transferred to the court of Chancery. 
 
OF COMMON LA W AND EQUIl V. 639 
 
 and ba;ons be amerced by their peers ; that is, says he, by the 
 barons of the exchequer. The primary and original business of 
 this court is to call the king's debtors to account, by bill filed by 
 the attorney-general; and to recover any lands, tenements, or 
 hereditaments, any goods, chattels, or other profits or benefits, 
 belonging to the crown. So that by their original constitution 
 the jurisdiction of the court of cotnmon pleas, king's bench, and 
 exchequer, was entirely separate and distinct : the common pleas 
 being intended to decide all controversies between subject and 
 subject ; the king's bench to correct all crimes and rusdemeanors 
 that amount to a breach of the peace, the king being then plain- 
 tiff, as such offences are in open derogation of the Jura regalia of 
 liis crown ; and the exchequer to adjust and recover his revenue, 
 wherein the king also is plaintiff, as the withholding and non- 
 payment thereof is an injury to his jura fiscalia. But, as by a 
 fiction almost all sorts of civil actions are now allowed to be 
 brought in the king's bench, in like manner by another fiction 
 all kinds of personal suits may be prosecuted in the court of 
 exchequer. For as all the officers and ministers of this court 
 have, like those of other superior courts, the privilege of suing 
 and being sued only in their own court ; so also the king's 
 debtors and farmers, and all accomptants of the exchequer, are 
 privileged to sue and implead all manner of persons in the same 
 court of equity that they themselves are called into. They have 
 likewise privilege to sue and implead one another, or any stranger, 
 in the same kind of common law actions (where the personalty 
 only is concerned) as are prosecuted in the court of common 
 pleas. 
 
 This gives original to the common law part of their jurisdic- 
 tion, which was established merely for the benefit of the king's 
 accomptants, and is exercised by the barons only of the exchequer, 
 and not the treasurer or chancellor. The writ upon which all 
 proceedings here are grounded is called a quo minus : in which 
 the plaintiff suggests that he is the king's farmer or debtor, anc' 
 that the defendant hath done him the injury or damage cor.i- 
 plained of ; quo minus sufficiens existit, by which he is less able to 
 pay the king his debt or rent. And these suits are expressly 
 directed, by what is called the statute of Rutland, to be confined 
 to such matters only, as specially concern the king or his min- 
 isters of the exchequer. And by the articuli super cartas, it is 
 
640 OF THE PUBLIC COURTS 
 
 enacted, that no common pleas be thenceforth holden in the 
 exchequer contrary to the form of the great charter. But now, 
 by the suggestion of privilege, any person may be admitted to 
 sue in the exchequer as well as the king's accomptant. The 
 surmise, of being debtor to the king, is therefore become matter 
 of form and mere words of course, and the court is open to all 
 the nation equally. The sam& holds with regard to the equity 
 side of the court : for there any person may file a bill against 
 another upon a bare suggestion that he is the king's accomptant ; 
 but whether he is so, or not, is never controverted. In this court 
 on the equity side, the clergy have long used to exhibit their 
 bills for the non-payment of tithes ; in which case the surmise 
 of being the king's debtor is no fiction, they being bound to pay 
 him their first fruits, and annual tenths. But the chancery has 
 of late years obtained a large share in this business. 
 
 An appeal from the equity side of this court lies immediately 
 to the house of peers ; but from the common law side, in pursu- 
 ance of the statute 31 Edw. III., ch. 12, a writ of error must be 
 first brought into the court of exchequer chamber. And from 
 the determination there had, there lies, in the dernier resort, & 
 wiit of error to the house of lords. 
 
 IV. The high court of chancery is the only remaining, and 
 in matters of civil property by much the most important of any, 
 of the king's superior and original courts of justice. It has its 
 name of chancery, cancellaria, from the judge who presides here, 
 the lord chancellor or cancellarius ; who, Sir Edward Coke tells 
 us, is so termed a cancellando, from cancelling the king's letters 
 patent when granted contrary to law, which is the highest point 
 of his jurisdiction. But the office and name of chancellor (how- 
 ever derived) was certainly known to the courts of the Roman 
 emperors : where it originally seems to have signified a chief 
 scribe or secretary, who was afterwards invested with several 
 judicial powers, and a general superintendency over the rest of 
 the officers of the prince. From the Roman empire it passed to 
 the Roman church, ever emulous of imperial state ; and hence 
 every bishop has to this day his chancellor, the principal judge 
 of his consistory. And when the modern kingdoms of Europe 
 were established upon the ruins of the empire, almost every state 
 preserved its chancellor, with different jurisdictions and dignities, 
 according to their different constitutions. But in all of ^liem he 
 
OF COMMON LA W AND EQUITY. 641 
 
 seems to have had the supervision of all charters, letters, and 
 such other public instruments of the crown, as were authen- 
 ticated in the most solemn manner ; and therefore when seals 
 came in use, he had always the custody of the king's great seal. 
 So that the office of chancellor, or lord keeper (whose authority 
 by statute 5 Eliz., ch. 18, is declared to be exactly the same), is 
 with us at this day created by the mere delivery of the king's 
 great seal into his custody : whereby he becomes, without writ 
 or patent, an officer of the greatest weight and power of any now 
 subsisting in the kingdom ; and superior in point of precedency 
 to every temporal lord. He is a privy counsellor by his office, 
 and, according to lord chancellor EUesmere, prolocutor of the 
 house of lords by prescription. To him belongs the appointment 
 of all justices of the peace throughout the kingdom. Being 
 formerly usually an ecclesiastic (for none else were then capable 
 of an office so conversant in writings), and presiding over the 
 royal chapel, he became keeper of the king's conscience ; visitor 
 in right of the king, of all hospitals and colleges of the king's 
 foundation ; and patron of all the king's livings under the value 
 of .twenty marks per annum in the king's books. He is the 
 general guardian of all infants, idiots, and lunatics ; and has the 
 general superintendence of all charitable uses in the kingdom. 
 And all this, over and above the vast and extensive jurisdiction 
 which he exercises in '\)\s judicial capacity in the court of chan- 
 cery ; wherein, as in the exchequer, there are two distinct tri- 
 bunals : the one ordinary, being a court of common law ; the 
 other extraordinary, being a court of equity. 
 
 The ordinary legal court is much more ancient than the court 
 of equity. Its jurisdiction is to hold plea upon a scire facias to 
 repeal and cancel the king's letters patent, when made against 
 law, or upon untrue suggestions, and to hold plea of petitions, 
 monstrans de droit, traverses of offices, and the like ; when the 
 king hath been advised to do any act, or is put in possession of 
 any lands or goods, in prejudice of a subject's right. On proof 
 of which, as the king can never be supposed intentionally to do 
 any wrong, the law questions not, but he will immediately redress 
 the injury; and refers that conscientious task to the chancellor, 
 the keeper of his conscience. It also appertains to this court to 
 hold plea of all personal actions, where any officer or minister of 
 the court is a party. It might likewise hold plea (by scire facias) 
 42 
 
642 OF THE PUBLIC COURTS 
 
 of partitions of land in coparcenary, and of dower, where eny 
 ward of the crown was concerned in interest, so long as the mili- 
 tary tenures subsisted : as it now may also do of the tithes of 
 forest land, where granted by the king, and claimed by a stranger 
 against the grantee of the crown ; and of executions on statutes, 
 or recognizances in nature thereof, by the statute 23 Hen. VIII., 
 ch. 6. But if any cause comes to issue in this court, that is, if 
 any fact be disputed between the parties, the chancellor cannni 
 try it, having no power to summon a jury : but must deliver the 
 record propriA manu into the court of king's bench, where it 
 shall be tried by the country, and judgment shall be there giver 
 thereon. And when judgment is given in chancery upon demur- 
 rer or the like, a writ of error in nature of an appeal lies out 01 
 this ordinary court into the court of king's bench : though so 
 ittle is usually done on the common law side of the court, that 
 I have met with no traces of any writ of error being actually 
 brought, since the fourteenth year of Queen Elizabeth, a. d. 1572, 
 In this ordinary, or legal, court is also. kept the officina jus- 
 titicB : out of which all original writs that pass under the 
 great seal, all commissions of charitable uses, sewers, bankruptcy, 
 idiocy, lunacy, and the like, do issue ; and for which it is always 
 open to the subject, who may there at any time demand and have. 
 ex debito jttstitice, any writ that his occasions may call for 
 These writs (relating to the business of the subject) and the re 
 turns to them were, according to the simplicity of ancient timeb, 
 originally kept in a hamper, in hanaperio ; and the others (re- 
 lating to such matters wherein the crown is immediately or me 
 diately concerned) were preserved in a little sack or bag, in parvd 
 bagd: and thence hath arisen the distinction of the hanaper 
 office, and petty bag office, which both belong to the common-law 
 court in chancery, f 
 
 But the extraordinary court, or court of equity, is- now be 
 come the court of the greatest judicial consequence. This dis 
 tinction between law and equity, as administered in different 
 courts, is not at present known, nor seems to have ever been 
 known, in any other country at any time : and yet the difference 
 of one from the other, when administered by the same tribunal, 
 was perfectly familiar to the Romans ; the jus pratorium, 01 
 discretion of the praetor, being distinct from the leges or standing 
 laws, but the power of both centred in one and the same magis- 
 
 t See 51 & 52 Vict. o. 65. 
 
OF COMMON LA W AND EQUITY. 643 
 
 trate, who was equally entrusted to pronounce the ri.le of law, 
 and to apply it to particular cases, by the principles of equity. 
 With us too, the aula regia, which was the supreme court of ju- 
 dicature, undoubtedly administered equal justice according to 
 the rules of both or either, as the case might chance to require : 
 and, when that was broken to pieces, the idea of a court of equity, 
 as distinguished from a court of law, did not subsist in the origi- 
 nal plan of partition. For though equity is mentioned by 
 Bracton as a thing contrasted to strict law, yet neither in that 
 writer, nor in Glanvil or Fleta, nor yet in Britton (composed 
 under the auspices and in the name of Edward I., and treating 
 particularly of courts and their several jurisdictions), is there a 
 syllable to be found relating to the equitable jurisdiction of the 
 court of chancery. It seems therefore probable, that when the 
 courts of law, proceeding merely upon the ground of the king's 
 original writs, and confining themselves strictly to that bottom, 
 gave a harsh or imperfect judgment, the application for redress 
 used to be to the king in person assisted by his privy-council ; 
 (from whence also arose the jurisdiction of the court of requests 
 which was virtually abolished by the statute 16 Car. I., ch. 10), and 
 they were wont to refer the matter either to the chancellor and 
 a select committee, or by degrees to the chancellor only, who 
 mitigated the severity or supplied the defects of the judgments 
 pronounced in the courts of law, upon weighing the circum- 
 stances of the case. This was the custom not only among our Saxon 
 ancestors, before the institution of the aula regia, but also after 
 its dissolution, in the reign of King Edward I. ; and perhaps during 
 its continuance, in that of Henry II. 
 
 In these early times the chief judicial employment of the 
 chancellor must have been in devising new writs, directed to the 
 courts of common law, to give remedy in cases where none was 
 before administered. And to quicken the diligence of the clerks 
 in the chancery, who were too much attached to ancient prece- 
 dents, it is provided by statute Westm. 2, 13 Edw. I., ch. 24, that 
 ■■ whensoever from thenceforth in one case a writ shall be found 
 in the chancery, and in a like case falling under the same right 
 and requiring like remedy no precedent of a writ can be produced, 
 the clerks in chancery shall agree in forming a new one ; and, 
 if they cannot agree, it shall be adjourned to the next parliament, 
 where a writ shall be framed by consent of the learned in the 
 
644 OF THE PUBLIC COURTS 
 
 law, lest it happen for the future, that the court of ojr lord the 
 king be deficient in doing justice to the suitors." And this ac- 
 counts for the very great variety of writs of trespass on the case, 
 to be met with in the register ; whereby the suitor had roady 
 relief, according to the exigency of his business, and adapted to 
 the specialty, reason, and equity of his very case. Which pro- 
 vision (with a little accuracy in th'; clerks of the chancery, and a 
 little liberality in the judges, by extending rather than narrow- 
 ing the remedial effects of the vi rit) might have effectually an- 
 swered all the purposes of a court a f equity ; except that of obtain- 
 ing a discovery by the oath of the defendant. 
 
 But when, about the end of the reign of King Edward III., 
 uses of land were introduced and, though totally discountenanced 
 by the courts of common law, were considered as fiduciary de- 
 posits and binding in conscience by the clergy, the separate 
 jurisdiction of the chancery as a court of equity began to be 
 established, and John Waltham, who was bishop of Salisbury and 
 chancellor to King Richard II., by a strained interpretation of 
 the above mentioned statute of Westm. 2, devised the writ of 
 subpoena, returnable in the court of chancery only, to make the 
 feoffee to uses accountable to his cestui que use : which process 
 was afterwards extended to other matters wholly determinable at 
 the common law, upon false and fictitious suggestions ; for which 
 therefore the chancellor himself is by statute 17 Ric. II., ch. 6, 
 directed to give damages to the party unjustly aggrievedi But 
 as the clergy, so early as the reign of King Stephen, had attempt- 
 ed to turn their ecclesiastical courts into courts of equity, by en- 
 tertaining suits pro laesione fidei, as a spiritual offence against 
 conscience, in case of non-payment of debts or any breach 
 of civil contracts ; till checked by the constitations of 
 Clarendon, which declared that, " placita de debitis, quce fide 
 interposita debentur, vel absque interpositione fidei, sint in jus 
 titia regis : " therefore probably the ecclesiastical chancellors, 
 who then held the seal, were remiss in abridging their own neiv 
 acquired jurisdiction ; especially as the spiritual courts continued 
 to grasp at the same authority as before in suits pro laesione 
 fidei, so late as the fifteenth century, till finally prohibited by the 
 unanimous concurrence of all the judges. However, it appears 
 from the parliament rolls, that in the reigns of Henry IV. and V., 
 the^ commons were repeatedly urgent to have the writ of subpana 
 
OF COMMON LA W AND EQUITY 645 
 
 entirely suppressed, as being a novelty de .'ised by the subtlety 
 of chancellor Waltham, against the form of the common law ; 
 whereby no plea could be determined, unless by examination and 
 oath of the parties, according to the form of the law civil, and 
 the law of holy church, in subversion of the common law. But 
 though Henry IV., being then hardly warm in his throne, gave a 
 palliating answer to their petitions, and actually passed the stat- 
 ute 4 Hen. IV., ch. 23, whereby judgments at law are declared 
 irievocable unless by attaint or writ of error, yet his son put a 
 negative at once upon their whole application : and in Edward 
 IV.'s time the process by bill and subpoena was become the daily 
 practice of the court. 
 
 But this did not extend very far : for in the ancient treatise, 
 entitled diversity des courtes, supposed to be written very early 
 in the sixteenth century, we have a catalogue of the matters of 
 conscience then cognizable by subpoena in chancery, which fall 
 within a very narrow compass. No regular judicial system at 
 that time prevailed in the court ; but the suitor, when he thought 
 himself aggrieved, found a desultory and uncertain remedy, 
 according to the private opinion of the chancellor, who was 
 generally an ecclesiastic, or sometimes (though rarely) a states- 
 man : no lawyer having sat in the court of chancery from the 
 times of the chief justices Thorpe and Knyvet, successively 
 chancellors to King Edward III., in 1372 and 1373, to the pro- 
 motion of Sir Thomas More by King Henry VIII., in 1530. 
 After which the great seal was indiscriminately committed to 
 the custody of lawyers, or courtiers, or churchmen, according as 
 the convenience of the times and the disposition of the prince 
 required, till Serjeant Puckering was made lord-keeper in 1592, 
 from which time-to the present the court of chancery has always 
 been filled by a lawyer, excepting the interval from 162 1 to 
 1625, when the seal was intrusted to Dr. Williams, then Dean 
 of Westminster, but afterwards Bishop of Lincoln ; who had 
 been chaplain to Lord Ellesmere, when chancellor. 
 
 In the time of Lord Ellesmere (a. d. 1616), arose that 
 notable dispute between the courts of law and equity, set on 
 foot by Sir Edward Coke, then chief justice of the court of 
 king's bench ; whether a court of equity could give relief after 
 or against a judgment at the common law .' This contest was 
 ♦0 warmly carried on, that indictments were preferred against 
 
646 OF THE PUBLIC COURTS 
 
 the suitors, the solicitors, the counsel, and even a master in 
 chancery, for having incurred a pramunire, by questioning in a 
 court of equity a judgment in the court of king's bench, ob- 
 tained by gross fraud and imposition. This matter being 
 brought before the king, was by him referred to his learned 
 counsel for their advice and opinion ; who reported so strongly 
 in favor of the courts of equity, that his majesty gave judg- 
 ment in their behalf ; but, not contented with the irrefragable 
 reasons and precedents produced by his counsel (for the chief 
 justice was clearly in the wrong), he chose rather to decide the 
 question by referring it to the plenitude of his royal prerogative. 
 Sir Edward Coke submitted to the decision, and thereby made 
 atonement for his error : but this struggle, together with the 
 business of commendams (in which he acted a very noble part) 
 and his controlling the commissioners of sewers, were the open 
 and avowed causes, first of his suspension, and soon after of his 
 removal, from his office. 
 
 Lord Bacon, who succeeded Lord Ellesmere, reduced the 
 practice of the court into a more regular system ; but did not 
 sit long enough to effect any considerable revolution in the 
 science itself : and few of his decrees which have reached us are 
 of any great consequence to posterity. His successors, in the 
 reign of Charles L, did little to improve upon his plan : and 
 even after the Restoration the seal was committed to the Earl 
 of Clarendon, who had withdrawn from practice as a lawyer 
 near twenty years ; and afterwards to the Earl of Shaftesbury, 
 who (though a lawyer by education) had never practiced at all. 
 Sir Heneage Finch, who succeeded in 1673, and became after- 
 wards Earl of Nottingham, was a person of the greatest 
 abilities and most uncorrupted integrity ; a thorough master and 
 zealous defender of the laws and constitution of his country, 
 and endued with a pervading genius, that enabled him to dis- 
 cover and to pursue the true spirit of justice, notwithstanding 
 the embarrassments raised by the narrow and technical notions 
 which then prevailed in the courts of law, and the imperfect ideas 
 of redress which had possessed the courts of equity. T le reason 
 and necessities of mankind, arising from the great i:hange in 
 property by the extension of trade and the abolition of mihtary 
 tenures, co-operated in establishing his plan, and enabled him 
 in the course of nine years to build a system of Jurisprudence, 
 
OF COMMON LA W AND EQUITY. 647 
 
 and jurisdiction upon wide and rational foundations ; which have 
 also been extended and improved by many great men, who have 
 siiioe presided in chancery. And from that time to this, the 
 power and business of the court have increased to an amazing 
 degree. 
 
 From this court of equity in chancery, as from the other 
 superior courts, an appeal lies to the house of peers. But there 
 aie these differences between appeals from a court of equity, and 
 writs of error from a court of law: i. That the former may be 
 brought upon any interlocutory matter, the latter upon nothing 
 but only a definitive judgment ; 2. That on writs of error the 
 house of lords pronounces the judgment, on appeals it gives 
 direction to the court below to rectify its own decree.' 
 
 V. The next court that I shall mention is one that hath no 
 original jurisdiction, but is only a court of appeal, to correct the 
 errors of other jurisdictions. This is the court of exchequer 
 qhamber; which was first erected by statute 31 Edw. III., ch. 12, 
 to determine causes by writs of error from the common law side 
 of the court of exchequer. And to that end it consists of the 
 lord chancellor and lord treasurer, taking unto them the justices 
 of the king's bench and common pleas. In imitation of which a 
 second court of exchequer chamber was erected by statute 27 
 Eliz., ch. 8, consisting of the justices of the common pleas, and 
 the barons of the exchequer, before whom writs of error may 
 be brought to reverse judgments in certain suits originally 
 begun in the court of king's bench. Into the court also of ex- 
 
 ' Before the enactment of the Supreme Court of Judicature Act, which 
 went into effect in November, 1875, the organization of the English courts 
 of equity was as follows : The equity judges consisted of three vice-chan- 
 cellors, a master of the rolls, two lords-justices, and the lord-chancellor. The 
 vice-chancellors and the master of the rolls held each separate courts of 
 original jurisdiction ; so that there were four tribunals for the hearin? of 
 equitable causes in' the first instance. Appeals might be taken from either 
 court to the Court of Appeal in Chancery, or to the lord-chancellor. The 
 Court of Appeal was composed of the lords-justices and the lord-chancellor, 
 but It was generally held by the lords-justices alone. Any one of these three 
 judges, however, might in many cases act alone in the exercise of appellate 
 jurisdiction ; moreover, the lord-chancellor had an independent jurisdiction, 
 wit.iout sitting as a member of the court of appeals. A second appeal might 
 be taken to the House of Lords. The changes effected in this organization 
 of the courts, by the recent act, are stated in note g,pos/. 
 
648 OP THE PUBLIC COURTS 
 
 chequer chamber (which then consists of all the judges of the 
 three superior courts, and now and then the lord chancellor also), 
 are sometimes adjourned from the other courts such causes, as 
 the judges upon argument find to be of great weight and diffi- 
 culty, before any judgment is given upon them in the court below.* 
 
 From all the branches of this court of exchequer chamber, 
 a writ of error lies to : — 
 
 VI. The house of peers, which is the supreme court of judi- 
 cature in the kingdom, having at present no original jurisdiction 
 over causes, but only upon appeals and writs of error, to rectify 
 any injustice or mistake of the law, committed by the courts 
 below.' To this authority this august tribunal succeeded of 
 course upon the dissolution of the aula regia. For, as the barons 
 of parliament were constituent members of that coui t ; and the 
 rest of its jurisdiction was dealt out to other tribunals, over which 
 the great officers who accompanied those barons were respect- 
 ively delegated to preside ; it followed, that the right of receiving 
 appeals, and superintending all other jurisdictions, still remained 
 in the residue of that noble assembly, from which every other 
 great court was derived. They are therefore in all causes the 
 last resort, from whose judgment no farther appeal is permitted ; 
 but every subordinate tribunal must conform to their determina- 
 tions ; the law reposing an entire confidence in the honor and 
 conscience of the noble persons who compose this important as- 
 sembly, that (if possible) they will make themselves masters of 
 those questions which they undertake to decide, and in all dubious 
 cases refer themselves to the opinions of the judges,- who are 
 summoned by writ to advise them ; since upon their decision all 
 property must finally depend.* 
 
 « As to the change subsequently made in the organization of the Ex- 
 chequer Chamber, see ante, note 3. 
 
 ' Though the entire House of Lords constitutes nominally the final court 
 of appeal, yet, in practice, the exercise of these judicial functions is com- 
 mitted to a small number of members, who are termed " Lords of Appeal." 
 The Lord Chancellor is one of the number, while the others are usually such 
 persons as occupy or have occupied high judicial offices. Two in number are 
 specially appointed to the office under the title of " Lords of Appeal in Ordin- 
 ary," and ultimately two more having this title will be appointed. Three 
 judges are required to constitute a quorum. (39 & 40 Vict. c. 59.) 
 
 ' Reference should also be made, at this point, to the judicial tribunal, 
 known as the "Judicial Committee of the Privy Council." This has exclusive 
 jurisdiction of appeals from the ecclesiastical courts, and of appeals coming 
 
OF COMMON LA W AND EQUIl Y. 649 
 
 VII. Before I conclude this chapter, I must also mention 
 another species of courts, of general jurisdiction and use, which 
 are derived out of, and act as collateral auxiliaries to, the fore- 
 going; I mean the courts of assize and nisi prius. 
 
 These are composed of two or more commissioners, who are 
 twice in every year sent by the king's special commission all 
 round the kingdom (except London and Middlesex, where courts 
 of nisi prius are holden in and after every term, before the chief 
 or other judge of the several superior courts), to try by a jury 
 of the respective counties the truth of such matters of fact as are 
 then under dispute in, the courts of Westminster hall. These 
 judges of assize came into use in the room of the ancient justices 
 in eyre, justiciarii in itinere ; who were regularly established, if 
 not first appointed, by the parliament of Northampton, A. d. 
 1 176, 22 Hen. II., with a delegated power from the king's great 
 court, or aula regia, being looked upon as members thereof ; and 
 they afterwards made their circuit round the kingdom once in 
 seven years for the purpose of trying causes. They were after- 
 wards directed hy magna charta, ch. 12, to be sent into every 
 county once a year, to take (or receive the verdict of the jurors 
 or recognitors in certain actions, then called) recognitions or 
 assizes; the most difficult of which they are directed to adjourn 
 into the court of common pleas, to be there determined. The 
 itinerant justices were sometimes mere justices of assize or of. 
 dower, or of gaol-delivery, and the like ; and they had sometimes 
 a more general commission, to determine all manner of causes, 
 being constituted _;Mj/2a«m ad omnia placita : but the present 
 justices of assize and nisi prius are more immediately derived 
 from the statute Westm. 2, 13 Edw. I., ch. 30, which directs 
 them to be assigned out of the king's sworn justices, associating 
 to themselves one or two discreet knights of each county. By 
 statute 27 Edw. I., ch. 4 (explained by 12 Edw. II., ch. 3) as- 
 sizes and inquests were allowed to be taken belore any one jus- 
 tice of the court in which the plea was brought ; associating to 
 him one knight or other approved man of the county. And, 
 
 from the Colonies. It consists of a lord-president, the lord-chancellor, the lord 
 chief justice of England, the lords of appeal in ordinary and the lords justices 
 of appeal (if of the Queen's Privy Council), the master of the rolls, and certain 
 other members to the number of twenty or more in all. Four are sufScient to 
 form a quorum. No appeal lies from the Privy Council to the House of Lords ; 
 »nd its decisions are, therefore, iinal, within its special range of jurisdiction. 
 
6so OF THE PUBLIC COURTS 
 
 lastly, by statute 14 Edw. III., ch. 16, inquests of nisi priut may 
 be taken before any justice of either bench (though the plea be 
 not depending in his own court), or before the chief baron of the 
 exchequer, if he be a man of the law ; or otherwise before the 
 justices of assize, so that one of such justices be a judge of the 
 king's bench or common pleas, or the king's serjeant swoni. 
 They usually make their circuits in the respective vacations after 
 Hilary and Trinity terms ; assizes being allowed to be taken in 
 the holy time of Lent by consent of the bishops at the king's 
 request, as expressed in statute Westm. 1,3 Edw. I., ch. 51. 
 And it was also usual during the times of popery, for the prelates 
 to grant annual licenses to the justices of assize to administer 
 oaths in holy times : for oaths being of a sacred nature, the logic 
 of those deluded ages concluded that they must be of ecclesias- 
 tical cognizance. The prudent jealousy of our ancestors or- 
 dained, tha'. no man of law should be judge of assize in his own 
 county, wherein he was born or doth inhabit ; and a similar pro- 
 hibition is found in the civil law, which has carried this principle 
 so far that it is equivalent to the crime of sacrilege, for a man to 
 be governor of the province in which he was born, or has any 
 civil connection. 
 
 The judges upon their circuits now sit by virtue of five several 
 authorities, i. The commission of \\\q peace. 2. A commission 
 of oyer and terminer. 3. A commission of general gaol-delivery. 
 The consideration of all which belongs properly to the subsequent 
 book of these Commentaries. But the fourth commission is, 
 
 4. A commission of assize, directed to the justices and Serjeants 
 therein named, to take (together with their associates) assizes in 
 the several counties ; that is, to take the verdict of a peculiar 
 species of jury, called an assize, and sv mmoned for the trial of 
 landed disputes, of which hereafter. The other authority is, 
 
 5. That of nisi prius, which is a consequence of the commission of 
 assize, being annexed to the office of those justices by the statute 
 of Westm., 2, 1 3 Edw. I., ch. 30, and it empowers them to try all 
 questions of fact issuing out of the courts of Westminster, that 
 are then ripe for trial by jury. These by the course of the courts 
 are usually appointed to be tried at Westminster in some Easter 
 or Michaelmas term, by a jury returned from the county wherein, 
 the cause of action arises ; but with this proviso, «w//rj«j,««/^.fi' 
 before the day prefixed the judges of assize come into the county 
 
OF COMMON LA W AND EQUITY. 65 1 
 
 in question. This they are sure to do in the vacations preceding 
 each Easter and Michaelmas term, which saves much expense 
 and trouble. These commissions are constantly accompanied by 
 writs of association, in pursuance of the statutes of Edward I. 
 and II., before mentioned ; whereby certain persons (usually the 
 clerk of assize and his subordinate officers) are directed to asso- 
 ciate themselves with the justices and Serjeants, and they are 
 required to admit the said persons into their society, in order to 
 take the assizes, &c. ; that a sufficient supply of commissioners 
 may never be wanting. But, to prevent the delay of justice by 
 the absence of any of t;fiem, there is also issued of course a writ 
 oisinon omnes ; directing that if all cannot be present, any two 
 of them (a justice or a serjeant being one) may proceed to execute 
 the commission. 
 
 These are the several courts of common law and equity, 
 which are of public and general jurisdiction throughout the king- 
 dom.' And, upon the whole, we cannot but admire the wise 
 
 ' An entire reorganization of the English courts has been effected by the 
 enactment of a statute known as the " Supreme Court of Judicature Act," which 
 went into force in November, 1875. A brief outline of the provisions of this 
 act and amendatory acts is as follows : It is declared that most existing courts 
 shall constitute a single tribunal, known as the " Supreme Court of Judicature." 
 This is divided into two divisions, one of which is called " Her Majesty's High 
 Court of Justice," the other, "Her Majesty's Court of Appeal." The former 
 exercises chiefly original jurisdiction, while the latter possesses appellate pow- 
 ers. The appellate jurisdiction of the House of Lords is retained, and it hears 
 appeals from the Court of Appeal and from Irish and Scotch courts. (See note 
 7.) The High Court consists of judges virho formerly belonged to the courts 
 whose jurisdiction has been transferred to the High Court (see post), together 
 with the successors of such former judges as have died or vacated office ; pro- 
 vision has also been made for the appointment of a few additional judges of 
 this court ; the master of the rolls ceased to be a member of this court in 1881, 
 nor is the lord-chancellor deemed a permanent member. The Court of Appeal 
 consists of nine judges, four of whom are ]\iiA%&^ ex officio, and five ordinary 
 judges. Thi ex officio judges are the lord-chancellor, the master of the rolls, 
 the lord chief justice of England (who presides over the Quee'n's Bench Divis- 
 ion), and the judge of the Court of Probate. The ordinary judges of this court 
 are known as " lords justices of appeal." 
 
 The High Court of Justice was at first (in 1875) subdivided into five divis- 
 ions, corresponding in the main to the previously existing tribunals whose 
 jurisdiction it received. One division consisted of equity judges belonging to 
 the High Court and was termed the Chancery Division. The other divisions 
 were the Queen's Bench Division, the Common Pleas Division, the Exchequer 
 Division, and the Probate, Divorce and Admiralty Division. These divisions 
 
652 OF THE PUBLIC COURTS 
 
 economy and admirable provision of our ancestors in settling 
 the distribution of justice in a method so well calculated for 
 cheapness, expedition, and ease. By the constitution which they 
 established, all trivial debts, and injuries of small consequence, 
 were to be recovered or redressed in every man's own county, 
 hundred, or perhaps parish. Pleas of freehold, and more impor- 
 tant disputes of property, were adjourned to the king's court 
 of common pleas, which was fixed in one place for the benefit of 
 the whole kingdom. Crimes and misdemeanors were to be 
 examined in a court by themselves ; and matters of the revenue 
 in another distinct jurisdiction. Now, indeed, for the ease of the 
 subject and greater dispatch of causes, methods have been 
 found to open all the three superior courts for the redress of pri- 
 vate wrongs ; which have remedied many inconveniences, and 
 
 were reallj' the former courts, continued as sections of the High Court, though 
 with considerable change of powers ; but the last division named was composed 
 of the judge of the former Court of Probate and the judge of the Court of Ad- 
 miralty. But in 1881 the three common-law divisions were consolidated into 
 one, viz. the Queen's Bench Division, so that now there are but three divis- 
 ions in all. The offices of lord chief justice of the Common Pleas, and lord 
 chief baron of the Exchequer are abolished. Judges may be transferred from 
 one division to another by the Crown. The juri.sdiction of these various divisions 
 is much the same as that of the corresponding courts formerly ; but, in one 
 respect, there has been a very important extension of power. It is provided by 
 the act that in every civil cause or matter entertained by the Supreme Court of 
 Judicature, law and equity shall be concurrently administered, and that equit- 
 able rules shall supersede those of the law, when any conflict arises. This gives 
 th'e cornmon-law division important equitable powers which it did not previously 
 possess. But causes of action which are peculiarly equitable in their nature 
 are brought before the Chancery Division. 
 
 Subject to rules of court, it is provided that the plaintiff in any action may 
 assign it to any proper division he may choose by so endorsing his papers. If 
 an improper assignment is made, a transfer may be made by the court. But 
 probate, divorce, and admiralty matters must be assigned to that division 
 All actions and proceedings in the High Court are, as far as practicable, heard 
 before a single judge. But such business as the rules of court may direct is 
 transacted before divisional courts of the High Court. These consist ordin- 
 arily of two judges (though in special cases the number may be increased) and 
 are distinct from the divisions previously mentioned. Any number of divis- 
 ional courts may hold session at the same time. The Court of Appeal hears 
 appeals from the various divisions of the High Court. When the appeal is 
 from a final order or judgment, it is heard before not less than three judges ; 
 when from an interlocutory order or judgment, before not less than two jtdges. 
 The court may sit in two divisions at the same time. 
 
 Provision is also made for the holding of circuit courts throughout the king- 
 dom, as formerly, by the judges and commissioners appointed for the purpose. 
 (See 36 & 37 Vict. c. 66 ; 38&3()«rf.c. 77; 39&40»(/.c. 59; i^oid. c.g;44&45*^ 
 C.68.) 
 
OF COMMON LA W AND EQUITY. 653 
 
 yet preserved the forms and boundaries handed down to us from 
 high antiquity. If facts are disputed, they are sent down to be 
 tried in the country by the neighbors ; but the law, arising 
 upon those facts, is determined by the judges above: and, if they 
 are mistaken in point of law, there remain in both cases two suc- 
 cessive courts of appeal, to rectify such their mistakes. If the 
 rigor of general rules does in any case bear hard upon individ- 
 ' uals, courts of equity are open to supply the defects, but not 
 sap the fundamentals, of the law. Lastly, there presides over all 
 one great court of appeal, which is the last resort in matters 
 both of law and equity ; and which will therefore take care to 
 preserve a uniformity and equilibrium among all the inferior 
 jurisdictions : a court composed of prelates selected for their 
 piety, and of nobles advanced to that honor for their personal 
 merit, or deriving both honor and merit from an illustrious train 
 of ancestors : who are formed by their education, interested by 
 their property, and bound upon their conscience and honor, to 
 be skilled in the laws of their country. This is a faithful sketch 
 of the English juridical constitution, as designed by the masterly 
 hand of our forefathers, of which the great original lines are still 
 strong and visible ; and if any of its minuter strokes are by the 
 length of time at all obscured or decayed, they may still be 
 with ease restored to their pristine vigor : and that not so much 
 by fanciful alterations and wild experiments (so frequent in this 
 fertile age), as by closely adhering to the wisdom of the ancient 
 plan, concerted by Alfred, and perfected by Edward I., and by 
 attending to the spirit, without neglecting the forms of their 
 excellent and venerable institutions.'" 
 
 '" The Courts of the United States. — The Supreme Court of the 
 United States was established by the Constitution, and, by various laws oi 
 Congress, subordinate tribunals have been established, which form a con- 
 nected, interdependent series of courts, extending throughout the Union 
 The most important of these are the District Courts, and the Circuit Courts. 
 The District Courts are at present (1890) about 65 in number. As a general 
 rule, each State constitutes a district, but the larger and more populous 
 states are divided into two or three districts. New districts are formed, 
 from time to time, as new States are admitted to the Union. In each court 
 there is a single judge, who must reside in his district. Their jurisdiction 
 extends to admiralty or maritime causes of action ; to suits for penalties 
 or forfeitures under the U. S. laws ; to postal law actions ; to suits against 
 national banks ; to the trial of crimes and ofTences against the United States, 
 Dot attended with capital punishment ; to actions against consuls, and to va- 
 
654 OF CO UR TS ECCLESIA S TICAL, 
 
 CHAPTER IV. 
 
 [BU COMM BOOK III. CH. V.] 
 
 Of Courts Ecclesiastical, and Maritime. 
 
 Besides the several courts which were treated of in the |.jre- 
 ceding chapter, and in which all injuries are redressed, that fall 
 under the cognizance of the common law of England, or that 
 
 nous other cases. Appeals are generally taken to the circuit courts, though some- 
 times they lie directly to the Supreme Court. 
 
 The Judicial Circuits are nine in number, each circuit consisting of several States, 
 and Circuit Courts are established, there being in general one for each district. Each 
 of the nine justices of the Supreme Court is allotted to one of the circuits, and is 
 required to attend at least one term of the circuit court in each district in his circuit 
 during every period of two years. A special circuit judge is also appointed in each 
 circuit, who must reside within its limits. Circuit Courts are held by the Supreme 
 Court justice allotted to the circuit, or by the circuit judge, or by the district judge of 
 the district, or by any two of these judges sitting together. The jurisdiction of these 
 courts is both original and appellate. Their original jurisdiction (concurrent with 
 that of the State courts) extends to civil suits in law or equity, where the matter in 
 dispute exceeds ;jS20OO, and arising under the U. S. Constitution or laws, or under 
 treaties, or involving a controversy between citizens of different states or between 
 citizens and foreigners, etc.; it also extends to suits by the United States, to suits 
 against national banks, to questions of revenue, of civil rights, to patent and copyright 
 cases, to certain criminal prosecutions, etc. They have appellate jurisdiction to hear 
 appeals from the District Courts in admiralty and maritime causes (except prize 
 causes) and in civil actions, provided in all these cases the matter in dispute, exclusive 
 of costs, exceeds ^(50; also in certain criminal cases. Appeals are taken to the 
 Supreme Court. Certain actions may be removed from the State courts to the circuit 
 courts. (Acts of Congress of Mar. 3, 1887, Aug. 13, 1888.) 
 
 The Supreme Court is composed of a chief-justice and eight associate justices, of 
 whom six constitute a quorum. One term is held yearly in Washington. The juris- 
 diction is both original and appellate, but chiefly the latter. It has original jurisdic- 
 tion in cases affecting embassadors, other public ministers, consuls, and in actions to 
 which a State is a party. Appeals are taken to this court from the circuit courts, and 
 from certain district courts with circuit court powers, from judgments of ^(5000 ci 
 more, upon questions of jurisdiction, etc. Besides, if decisions rendered in the highest 
 appellate courts of the various States are in conflict with the Constitution treaties or 
 laws of the United States, they may be appealed to the Supreme Court. So appeals 
 from Territorial courts are heard here. 
 
 Each of the respective American States has its own system of court organization, 
 which must be ascertained by reference to the statutes of such States. It would be 
 impracticable to give an account of such diverse systems in this connection. 
 
AND MARITIME. 655 
 
 spirit of equit), which ought to be its constant attendant, there 
 still leniain some other courts of a jurisdiction equally public 
 and general ; which take cognizance of other species of injuries, 
 of an ecclesiastical, and maritime nature ; and therefore are prop- 
 erl)' distinguished by the title of ecclesiastical courts, and courts 
 maritime. 
 
 I. Before I descend to consider particular ecclesiastical courts, 
 I must first of all in general premise, that in the time of our 
 Saxon ancestors there was no sort of distinction between the lay 
 and the ecclesiastical jurisdiction : the county-court was as much 
 a spiritual as a temporal ^tribunal : the rights of the church were 
 ascertained and asserted at the same time, and by the same 
 judges, as the rights of the laity. For this purpose the bishop 
 of the diocese, and the alderman, or in his absence the sheriff 
 of the county, used to sit together in the county-court, and 
 had there the cognizance of all causes, as well ecclesiastical 
 as civil : a superior deference being paid to the bishop's 
 opinion in spiritual matters, and to that of the lay judges in 
 temporal. This union of power was very advantageous to them 
 both ; the presence of the bishop added weight and reverence 
 to the sheriff's procedings ; and the authority of the sheriff was 
 equally useful to the bishop, by enforcing obedience to his 
 decrees in such refractory offenders, as would otherwise have de- 
 spised the thunder of mere ecclesiastical censures. 
 
 But so moderate and rational a plan was wholly inconsistent 
 with those views of ambition, that were then forming by the 
 court of Rome. It soon became an established maxim in the 
 papal system of policy, that all ecclesiastical persons, and all 
 ecclesiastical causes, should be solely and entirely subject to 
 ecclesiastical jurisdiction only : which jurisdiction was supposed 
 to be lodged in the first place and immediately in the pope, 
 by divine indefeasible right and investiture from Christ himself ; 
 and derived from the pope to all inferior tribunals. Hence the 
 canon law lays it down as a rule, that " sacerdotes a regibus hono- 
 randi sunt., non judicandi ; " and places an emphatic reliance on 
 a fabulous tale which it tells of the Emperor Constantine : that 
 when some petitions were brought to him, imploring the aid of 
 his authority against certain of his bishops, accused of op- 
 pression and injustice, he caused (says the holy canon) the peti- 
 tions to be burnt in their presence, dismissing them with this 
 
6s6 OF COURTS ECCLESIASTICAL, 
 
 valediction ; " ite et inter vos causas vestras discutite, quia dignum 
 nonest iit nos judicemus Deos." 
 
 It was not however till after the Norman Conquest, that this 
 doctrine was received in England ; when William I. (whose title 
 was warmly espoused by the monasteries, which he liberally 
 endowed, and by the foreign clergy, whom he brought over in 
 shoals from France and Italy, and planted in the best preferments 
 of the English Church), was at length prevailed upon to establisB 
 this fatal encroachment, and separate the ecclesiastical court from 
 the civil : whether actuated by the principles of bigotry, or by 
 those of a more refined policy, in order to discountenance the 
 laws of King Edward, abounding with the spirit of Saxon liberty, 
 is not altogether certain. But the latter, if not the cause, was 
 undoubtedly the consequence of this separation : for the Saxon 
 laws were soon overborne by the Norman justiciaries, when the 
 county-court fell into disregard by the bishop's withdrawing 
 his presence, in obedience to the charter of the Conqueror ; which 
 prohibited any spiritual cause from being tried in the secular 
 courts, and commanded the suitors to appear before the bishop 
 only, whose decisions were directed to conform to the canon law. 
 
 King Henry the First, at his accession, among other restora- 
 tions of the laws of King Edward the Confessor, revived this 
 of the union of the civil and ecclesiastical courts. Which was, 
 according to Sir Edward Coke, after the great heat of the Con- 
 quest was past, only a restitution of the ancient law of England. 
 This however was ill-relished by the popish clergy, who, under 
 *-he guidance of that arrogant prelate, archbishop Anselm, very 
 early disapproved of a measure that put them on a level with 
 the profane laity, and subjected spiritual men and causes to the 
 inspection of the secular magistrates : and therefore in their 
 synod at Westminster, 3 Hen. I., they ordained that no bishop 
 should attend the discussion of temporal causes ; which soon 
 dissolved this newly effected union. And when, upon the death 
 of King Henry the First, the usurper Stephen was brought in 
 and supported by the clergy, we find one article of the oath which 
 they imposed upon him was, that ecclesiastical persons ami 
 ecclesiastical causes should be subject only to the bishop's juris- 
 diction. And as it was about that time that the contest and 
 emulation began between the laws of England and those of Rome, 
 the temporal courts adhering to the former, and the spiritual 
 
AND MARITIME. 657 
 
 adopting the latter as their rule of proceeding, this widei.ed the 
 breach between them, and made a coalition afterwards impracti- 
 cable ; which probably would else have been effected at the gene- 
 ral reformation of the church. 
 
 In briefly recounting the various species of ecclesiastical courts, 
 or, as they are often styled, courts Christian {curicB Christianitatis) 
 1 shall begin with the lowest, and so ascend gradually to the 
 supreme court of appeal. 
 
 1. The archdeacon's court is the most inferior court in the 
 whole ecclesiastical polity. It is held in the archdeacon's ab- 
 sence before a judge app^nted by himself, and called his official ; 
 and its jurisdiction is sometimes in concurrence with, some- 
 times in exclusion of, the bishop's court of the diocese. From 
 hence, however, by statute 24 Hen. VIII., ch. 12, an appeal lies 
 to that of the bishop. 
 
 2. The consistory court of every diocesan bishop is held in 
 their several cathedrals, for the trial of all ecclesiastical causes 
 arising within their respective dioceses. The bishop's chan- 
 cellor, or his commissary, is the judge ; and from his sentence 
 an appeal lies, by virtue of the same statute, to the arcn- 
 bishop of each province respectively. 
 
 3. The court of arches is a court of appeal belonging to the 
 archbishop of Canterbury ; whereof the judge is called the dea/i 
 of the arches, because he anciently held his court in the church 
 of Saint Mary le bow {sancta Maria de arcubus), though all 
 the principal spiritual courts are now holden at doctors' commons. 
 His proper jurisdiction is only over the thirteen peculiar parishes 
 belonging to the archbishop in London ; but the office of dean 
 of the arches having been for a long time united with that of the 
 archbishop's principal official, he now, in right of the last-men- 
 tioned office (as doth also the official principal of the archbishop 
 of York), receives and determines appeals from the sentences of 
 all inferior ecclesiastical courts within the province. And from 
 him an appeal lies to the king in chancery (that is, to a court of 
 delegates appointed under the king's great seal), by statute 25 
 Hen. VIII., ch. 19, as supreme head of the English Church, in the 
 place of the bishop of Rome, who formerly exercised this jurisdic- 
 tion; which circumstance alone will furnish the reason why 
 the popish clergy were so anxious to separate the spiritual cour* 
 from the temporal. 
 
 43 
 
658 OF COURTS ECCLESIASTICAL, 
 
 4. The court of peculiars is a branch of and annexed to \he 
 court of arches. It has a jurisdiction over all those parishes dis- 
 persed through the province of Canterbury in the midst of 
 other dioceses, which are exempt from the ordinary's jurisdiction, 
 and subject to the metropolitan only. All ecclesiastical causes, 
 arising within these peculiar or exempt jurisdictions, are origi- 
 nally cognizable by this court ; from which an appeal lay 
 formerly to the pope, but now by the statute 25 Hen. VIII., ch. 
 19, to the king in chancery. 
 
 5. The prerogative court is established for the trial of all 
 testamentary causes, where the deceased hath left bona notabilia 
 within two different dioceses. In which case the probate of wills 
 belongs to the archbishop of the province^ by way of special 
 ])rerogative. And all causes relating to the wills, administrations, 
 or legacies of such persons are, originally, cognizable herein, 
 before a judge appointe^., by the archbishop, called the judge of 
 the prerogative court ; from whom an appeal lies by statute 25 
 Hen. VIII., ch. 19, to the king in chancery, instead of the pope, 
 as formerly. 
 
 6. The great court of appeal in all ecclesiastical causes, viz., 
 the court of delegates, judices delegati, appointed by the king's 
 commission under his great seal, and issuing out of chancery, to 
 represent his royal person, and hear all appeals to him by virtue 
 of the before-mentioned statute of Henry Vlll. This com- 
 mission is frequently filled with lords, spiritual and temporal, 
 and always with judges of the courts at Westminster, and doc- 
 tors of the civil law. But in case the king himself be party in 
 any of these suits, the appeal does not then lie to him in chan- 
 cery, which would be absurd ; but, by the statute 24 Hen. VIII., 
 ch. 12, to all the bishops of the realm, assembled in the upper 
 house of convocation.^ 
 
 7. A commission of review is a commission sometimes 
 granted, in extraordinary cases, to revise the sentence of the 
 court of delegates ; when it is apprehended they have been led 
 into a material error. This commission the king may grant, 
 although the statutes 24 & 25 Hen. VIII., before cited, declare 
 the sentence of the delegate definitive : because the pope as 
 
 ' The jurisdiction, of the court of delegates was afterwards transferred to 
 the judicial committee of the Privy Council. See note 8, in the preceding 
 thapter. 
 
AND MARITIME. 659 
 
 supreme head by the canon law used to grant such comn\ission 
 of review ; and such authority as the pope heretofore exerted, is 
 now annexed to the crown by statutes 26 Hen. VIII., ch. i, and 
 I Eliz., ch. I. But it is not matter of right, which the subject 
 may demand ex debito justitice ; but merely a matter of favor, 
 and which therefore is often denied.^ 
 
 II. The maritime courts, or such as have power and jurisdic- 
 tion to determine all maritime injuries, arising upon the seas, 
 or in parts out of the reach of the common law, are only 
 the court of admiralty, and its courts of appeal. According to 
 Sir Henry Spelman, and Lambard, it was first of all erected by 
 King Edward the Third. Its proceedings are according to the 
 method of the civil law, like those of the ecclesiastical courts ; 
 upon which account it is usually held at the same place with the 
 superior ecclesiastical courts, at doctors' commons in London. 
 It is no court of record, any more than the spiritual courts. 
 From the sentences of the admiralty judge an appeal always lay, 
 in ordinary course, to the king in chancery, as may be collected 
 from statute 25 Henry VIII., ch. 19, which directs the appeal 
 from the archbishop's courts to be determined by persons 
 named in the king's commission, " like as in case of appeal from 
 the admiral court." But this is also expressly declared by stat- 
 ute 8 Eliz., ch. 5, which enacts, that upon appeal made to the 
 chancery, the sentence definitive of the delegates appointed by 
 commission shall be final. 
 
 Appeals from the vice-admiralty courts in America, and our 
 other plantations and settlements, may be brought before the 
 courts of admiralty in England, as being a branch of the ad- 
 miral's jurisdiction, though they may also be brought before the 
 king in council. But in case of prize vessels,, taken in time of 
 
 ' This account of the ecclesiastical courts has been retained, in an abbrevi- 
 ated form, on account of its historical importance ; but very extensive changes 
 have been made in the organization and jurisdiction of these courts, which 
 have deprived them of much of their former importance. The principal 
 ecclesiastical courts now existing jre the consistory courts of the bishop of 
 each diocese, and the Court of Arches, which sits at Westminster. Their 
 chief jurisdiction extends to the trial of charges of heresy, of improperly 
 Mnducting the service of the Church, and of immoral and scandalous con- 
 auct on the part of clergymen. A final appeal lies from the Court of Arches 
 '0 the Committee of the Privy Council. There are no similar tribunals in 
 'his country. 
 
66o OF COURTS ECCLESIASTICAL, ETC. 
 
 war, in any part of the world, and condemned in any courts of 
 admiralty or vice-admiralty as lawful prize, the appeal lies to 
 certain commissioners of appeals consisting chiefly of the Privy 
 Council, and not to judges-delegates. And this by virtue of 
 divers treaties with foreign nations ; by which particular courts 
 are established in all the maritime countries of Europe for the 
 decision of this question, whether lawful prize or not : for this 
 being a question between subjects of different states, it belongs 
 entirely to the law of nations, and not to the municipal laws of 
 either country, to determine it. The original court, to which 
 this question is permitted in England, is the court of admiralty ; 
 and the court of appeals is in effect the king's privy council, the 
 members of which are, in consequence of treaties, commissioned 
 under the great seal for this purpose.' 
 
 ' The organization of the High Court of Admiralty has been changed, 
 and its jurisdiction extended by recent statutes. It is now held by a special 
 admiralty judge, instead of by the Lord High Admiral, as formerly. 
 Appeals are taken to Her Majesty's Court of Appeal. It has been united 
 with the Court of Probate and Divorce to form a special division of the 
 High Court of Justice (see note 9, preceding chapter), but admiralty causes 
 are still heard independently by the admiralty judge. " The suits usually 
 entertained by the court are for the purpose of enforcing bottomry or re- 
 spondentia bonds ; to obtain salvage awards ; to enforce the payment of 
 money due for necessaries supplied to a ship, or for wages due to the master 
 or crew, or for towage or pilotage services ; to recover damages in cases of 
 collision, and of damage done by any ship ; also, in cases of damage to goods, 
 or in respect of breaches of contract, where the owners of the vessel are 
 domiciled abroad. The court also entertains questions of prize and booty 
 of war, but it exercises this jurisdiction by virtue of a warrant issued for that 
 purpose, giving it special jurisdiction in that behalf." (Broom & Hadley's 
 Comm., iii. 435.) 
 
 In the United States, jurisdiction in admiralty and maritime causes is 
 vested exclusive!; in the United States courts. (See note 11, preceding 
 chapter.) 
 
OF THE COGNIZANCE OF PRIVATE WRONGS. 66i 
 
 CHAPTER V. 
 
 [bL. COMM. BOOK III. CH. VII,] 
 
 Of the Cognizance of Private Wrongs. 
 
 We are now to proce§d to the cognizance of private wrongt 
 that is, to consider in which of the vast variety of courts, men- 
 tioned in the three preceding chapters, every possible injury 
 that can be offered to a man's person or property is certain of 
 meeting with redress. 
 
 The authority of the several courts of private and special 
 jurisdiction, or of what wrongs such courts have cognizance, was 
 necessarily remarked as those respective tribunals were enumer- 
 ated ; and therefore need not be here again repeated ; which will 
 confine our present inquiry to the cognizance of civil injuries in 
 the several courts of public or general jurisdiction. And the 
 order, in which I shall pursue this inquiry, will be by showing : 
 1. What actions may be brought, or what injuries remedied, in 
 the ecclesiastical courts. 2. What in the maritime. 3. What 
 in the courts of common law. 
 
 And, with regard to the two first of these particulars, I 
 must beg leave not so much to consider what hath at any time 
 been claimed or pretended to belong to their jurisdiction, by the 
 officers and judges of those respective courts ; but what the 
 common law allows and permits to be so. For '-these eccentri- 
 cal tribunals (which are principally guided by the rules of the 
 imperial and canon laws), as they subsist and are admitted in 
 England, not by any right of their own, but upon bare suffer- 
 ance and toleration from the municipal laws, must have recourse 
 to the laws of that country wherein they are thus adopted, to be 
 mformed how far their jurisdiction extends, or what causes are 
 permitted, and what forbidden, to be discussed or drawn in ques- 
 tion before them. It matters not therefore what the pandects of 
 Justinian, or the decretals of Gregory, have ordained. They are 
 here of no more intrinsic authority than the laws of Solop and 
 
662 OF THE COGNIZANCE -OF PRIVATE WRONGS, 
 
 Lycurgus : curious perhaps for their antiquity, respectable foi 
 th^ir equity, and frequently of admirable use in illustrating a 
 point of history. Nor is it at all material in what light other 
 nations may consider this matter of jurisdiction. Every nation 
 must and will abide by its own municipal laws ; which various 
 accidents conspire to render different in almost every country in 
 Europe. We permit some kinds of suits to be of ecclesiastical 
 cognizance, which other nations have referred entirely to the 
 temporal courts ; as concerning wills and successions to intes- 
 tates' chattels : and perhaps we may, in our turn, prohibit them 
 from interfering in some controversies, which on the continent 
 may be looked upon as merely spiritual. In short, the common 
 law of England is the one uniform rule to determine the juris- 
 diction of our courts : and, if any tribunals whatsoever attempt 
 to exceed the limits so prescribed them, the king's courts of 
 common law may and do prohibit them ; and in some cases 
 punish their judges. 
 
 Having premised this general caution, I proceed now to 
 consider : — 
 
 I. The wrongs or injuries cognizable by the ecclesiastical 
 courts. I mean such as are offered to private persons or indi- 
 viduals ; which are cognizable by the ecclesiastical court, not 
 for reformation of the offender himself or party injuring [pro 
 salute animo!, as is the case with immoralities in general, when 
 unconnected with private injuries), but for the sake of the party 
 injured, to make him a satisfaction and redress for the damage 
 which he has sustained. And these I shall reduce under three 
 general heads ; of causes pecuniary, causes matrimonial, and 
 causes testamentary. 
 
 1. Pecuniary causes, cognizable in the ecclesiastical courts, 
 are such as arise either from the withholding ecclesiastical dues, 
 or the doing or neglecting some act relating to the church, 
 whereby some damage accrues to the plaintiff ; towards obtain- 
 ing a satisfaction for which he is permitted to institute a suit in 
 the spiritual court. 
 
 2. Matrimonial causes, or injuries respecting the rights of 
 marriage, are another, and a much more undisturbed, branch of 
 the ecclesiastical jurisdiction. Though, if we consider marriages 
 in the light of mere civil contracts, they do not seem to be prop- 
 erly of spiritual cognizance. But the Romanists having very 
 
OF THE COGNIZANCE OF PRIVA TE WRONGS. 663 
 
 early converted this contract into a holy sacramental ordinance, 
 the church of course took it under her protection, upon the di- 
 vision of the two jurisdictions. 
 
 Of matrimonial causes, one of the first and principal is, I. 
 Causa jactitationis matrimonii ; when one of the parties boasts or 
 gives out that he or she is married to the other, whereby a com- 
 mon reputation of their matrinlony may ensue. On this ground 
 the party injured may libel the other in the spiritual court ; and, 
 unless the defendant undertakes and makes out a proof of the 
 actual marriage, he or she is enjoined perpetual silence upon 
 that head ; which is tl^ only remedy the ecclesiastical courts 
 can give for this injury. 2. Another species of matrimonial 
 causes was, when a party contracted to another brought a suit 
 in the ecclesiastical court to compel a celebration of the marriage 
 in pursuance of such contract ; but this branch of causes is now 
 cut off entirely by the act for preventing clandestine marriages, 
 26 Geo. II., ch. 33, which enacts, that for the future no suit 
 shall be had in any ecclesiastical court, to compel a celebration 
 of marriage in facie ecclesice, for or because of any contract of 
 matrimony whatsoever. 3. The suit for restitution of conjugal 
 rights is also another species of matrimonial causes : f which is 
 brought whenever either the husband or wife is guilty of the 
 injury of subtraction, or lives separate from the other without 
 any sufficient reason ; in which case the ecclesiastical jurisdic- 
 tion will compel them to come together again, if either party be 
 weak enough to desire it, contrary to the inclination of the other. 
 4. Divorces also, of which, and their several distinctions, we 
 treated at large in a former book, are causes thoroughly matri- 
 monial, and cognizable by the ecclesiastical judge. If it be- 
 comes improper, through some supervenient cause arising ex 
 post facto, that the parties should live together any longer ; as 
 through intolerable cruelty, adultery, a perpetual disease, and 
 the like ; this unfitness or inability for the marriage state may 
 be looked upon as an injury to the suffering party; and for this 
 the ecclesiastical law administers the remedy of separation, or a 
 divorce a mensa et thoro. But if the cause existed previous to the 
 marriage, and was such a one as rendered the marriage unlawful 
 ab initio, as consanguinity, corporal imbecility, or the like ; in 
 this case the law looks upon the marriage to have been always 
 null and void, being contracted infraudem legis, and decrees not 
 
 tAs to the present English law, see 47 & 48 Vict. i.. 63; Smith v. Smith, 15 P. D. 47. 
 
66 \ OF THE COGNIZANCE OF PRIVATE WRONGS 
 
 only a separation from bed and board, but a vinculo matrimonh 
 itself. 5. The last species of matrimonial causes is a conse- 
 quence drawn from one of the species of divorce, that a mensa 
 et thoro ; which is the suit for alimony, a term which signifies 
 maintenance : which suit the wife, in case of separation, may 
 have against her husband, if he neglects or refuses to make her 
 an allowance suitable to their station in life. This is an injury 
 to the wife, and the court Christian will redress it by assigning 
 her a competent maintenance, and compelling the husband by 
 ecclesiastical censures to pay it. But no alimony will be as- 
 signed in case of a divorce for adultery on her part; for as that 
 amounts to a forfeiture of her dower after his death, it is also a 
 sufficient reason why she should not be partaker of his estate 
 when living, f 
 
 3. Testamentary causes are the only remaining species be- 
 longing to the ecclesiastical jurisdiction ; which as they are cer- 
 tainly of a mere temporal nature, may seem at first view a little 
 oddly ranked among matters of a spiritual cognizance. And in- 
 deed (as was in some degree observed in a former book), they 
 were originally cognizable in the king's courts of common law, 
 viz., the county courts ; and afterwards transferred to the juris- 
 diction of the church, by the favor of the crown, as a natural 
 consequence of granting to the bishops the administration of in- 
 testates' effects. 
 
 This spiritual jurisdiction of testamentary causes is a peculiar 
 constitution of this island ; for in almost all other (even in 
 popish) countries all matters testamentary are under the juris- 
 diction of the civil magistrate. At what period of time the ec- 
 clesiastical jurisdiction of testaments and intestacies began in 
 England, is not ascertained by any ancient writer. We find it 
 indeed frequently asserted in our common law books, that it is 
 but of late years that the church hath had the probate of 
 wills. But this must only be understood to mean that it hath not 
 always had this prerogative : for certainly it is of very high 
 antiquity. 
 
 This jurisdiction, we have seen, is principally exercised with 
 us in the consistory courts of every diocesan bishop, and in the 
 prerogative court of the metropolitan, originally ; and in the 
 arches court and court of delegates, by way of appeal. It is di 
 visible into three branches ; the probate of wills, the granting 
 
 t See ante, p. 151, note 15; p. 153, note 17. 
 
OF THE COGNIZANCE OF PRIVATE WRONGS. 665 
 
 of administrations, and the suing for legacies. Subtraction, the 
 withholding or detaining of legacies, is also still more apparently 
 injurious, by depriving the legatees of that right, with which the 
 laws of the land and the will of the deceased have invested 
 liiem : and therefore, as a consequential part of testamentary 
 j iirisdiction, the spiritual court administers redress herein, by 
 compelling the executor to pay them. But in this last case the 
 courts of equity exercise a concurrent jurisdiction with the ec- 
 clesiastical courts, as incident to some other species of relief 
 prayed by the complainant ; as to compel the executor to account 
 for the testator's effe9ts, or assent to the legacy, or the like. 
 For, as it is beneath the dignity of the king's courts to be merely 
 ancillary to other inferior jurisdictions, the cause when once 
 brought there, receives there also its full determination. 
 
 These are the principal injuries for which the party grieved 
 either must, or may, seek his remedy in ^le spiritual courts.' 
 But before I entirely dismiss this head, it may not be improper 
 to add a short word concerning the method of proceeding in these 
 tribunals, with regard to the redress of injuries. 
 
 The proceedings in the ecclesiastical courts are regulated ac- 
 cording to the practice of the civil and ( anon laws ; or rather 
 according to a mixture of both, corrected and new-modelled by 
 their own particular usages, and the interposition of the courts of 
 common law. For, if the proceedings in the spiritual court be 
 ever so regularly consonant to the rules of the Roman law, yet 
 if they be manifestly repugnant to the fundamental maxims of 
 
 ' The jurisdiction which the ecclesiastical courts formerly possessed has, 
 in recent times, been much limited. Their jurisdiction in pecuniary causes 
 has been rendered of but little importance by changes in the law ; while, in 
 malriiitoniai and Ustameniar)\ca.\ises, their jurisdiction has been transferred to a 
 newly established court, viz.: the Probate, Divorce, and Admiralty Division of 
 the High Court of Justice. The powers of this latter court are more extensive 
 than those possessed by the ecclesiastical courts, its methods of relief are more 
 efficacious and salutary, and the modes of procedure have been simplified, and 
 rendered more practically convenient. But it is iniptacticable to give any suffi- 
 ciently comprehensive statement of the nature. and extent of its jurisdiction. 
 The present jurisdiction of the ecclesiastical courts has been already stated. 
 (See note 2, preceding chapter ; also note 2, p. 142.) 
 
 Similar jurisdiction, in matrimonial causes, is generally vested in this 
 country in courts of equity, or in courts having equitable powers ; while tes- 
 tamentary causes are committed to special courts, known as probate or sur^ 
 rogate courts, orphans' courts, etc. 
 
066 OF THE COGNIZANCE OF PRIVATE WRONGS. 
 
 the municipal laws, to which upon principles of sound policy ths 
 ecclesiastical process ought in every state to conform (as if they 
 require two witnesses to prove a fact, where one will suffice at 
 common law) : in such cases a prohibition will be awarded 
 against them. But, under these restrictions, their ordinary 
 course of proceeding is ; first, by citation, to call the party in- 
 juring before them. Then, by libel, libellus, a little book, or by 
 Articles drawn out in a formal allegation, to set forth the com- 
 plainant's ground of complaint. To this succeeds the defendants 
 answer upon oath, when, if he denies or extenuates the charge, 
 they proceed to proofs by witnesses examined, and their deposi- 
 tions taken down in writing, by an officer of the court. If the 
 defendant has any circumstances to offer in his defence, he must 
 alsc propound them in what is called his defensive allegation, to 
 which he is entitled in his turn to XhQ plaintiff's answer upon oath, 
 and may from thencf proceed to proof s as well as his antagonist. 
 When all the pleadings and proofs are concluded, they are re- 
 ferred to the consideration, not of a jury, but of a single judge : 
 who takes information by hearing advocates on both sides, and 
 thereupon forms his interlocutory decree or definitive sentence at 
 his own discretion : from which there generally lies an appeal, 
 in the several stages mentioned in a former chapter; though if 
 the same be not appealed from in fifteen days, it is final, by the 
 statute 25 Hen. VIII., ch. 19. 
 
 But the point in which these jurisdictions are the most de- 
 fective, is that of enforcing their sentences when pronounced ; 
 for which they have no other process but that of excommunication; 
 which is described to be twofold ; the less, and the greater 
 excommunication. The less is an ecclesiastical censure, exclud- 
 ing the party from the participation of the sacraments : the 
 greater proceeds farther, and excludes him not only from these, 
 but also from the company of all Christians. But, if the judge 
 of any spiritual court excommunicates a man for a cause of which 
 he hath not the legal cognizance, the party may have an action 
 against him at common law, and he is also liable to be jndicted 
 at the suit of the king ; by the common law an excommunicated 
 person is disabled to do any act, that is required to be done by 
 one that is probus et legalis homo. He cannot serve upon juries, 
 cannot be a witness in any court, and, which is the worst of all, 
 cannot bring an action, either real or personal, to recover lands 
 or money due to him. § 
 
 § These civil disabilities resulting from excommunication were abolished in 1813. 
 
OF THE COGNIZANCE OF PRIVATE WRONGS. 66r 
 
 II. Injuries cognizable by the courts maritime, or admiralty 
 Cdurts, are the next object of our inquiries." These courts have 
 jurisdiction and power to try and determine all maritime causes ; 
 or such injuries, which, though they are in their nature of com- 
 mon law cognizance, yet being committed on the high seas, out 
 of the reach of our ordinary courts of justice, are therefore to be 
 remedied in a peculiar court of their own. All admiralty causes 
 must be therefore causes arising wholly upon the sea, and not 
 within the precincts of any county. If part of any contract, or 
 other cause of action, doth arise upon the sea, and part upon the 
 land, the common layr excludes the admiralty court from its ju- 
 risdiction ; for, part belonging properly to one cognisance and 
 part to another, the common or general law takes place of the 
 particular. Therefore, though pure maritime acquisitions, which 
 are earned and become due on the high seas, as seamen's wages 
 are one proper object of the admiralty jurisdiction, even though 
 the contract for them be made upon land : yet, in general, if there 
 be a contract made in England and to be executed upon the seas, 
 as a charter-party or covenant that a ship shall sail to Jamaica, 
 or shall be in such a latitude by such a day ; or a contract made 
 upon the sea to be performed in England, as a bond made on 
 shipboard to pay money in London or the like ; these kinds of 
 mixed contracts belong not to the admiralty jurisdiction, but to 
 the courts of common law. 
 
 The proceedings of the courts of admiralty bear much resem- 
 blance to those of the civil law, but are not entirely founded 
 thereon ; and they likewise adopt and make use of other laws, as 
 occasion requires ; such as the Rhodian laws and the laws of 
 Oleron. For the law of England, as has frequently been observed, 
 doth not acknowledge or pay any deference to the civil law 
 considered as such ; but merely permits its use in such cases 
 where it judged its determinations equitable, and therefore blends 
 it, in the present instance, with other marine laws : the whole 
 '■eing corrected, altered, and amended by acts of parliament and 
 common usage ; so that out of this composition a body of juris- 
 prudence is extracted, which owes its authority only to its recep- 
 tion here by consent of the crown and people. The first process 
 in these courts is frequently by arrest of the defendant's person ; 
 
 ' The general jurisdiction of the present Court of Admiralty is stated in note 
 3, in the preceding chapter. 
 
668 OF THE COGNIZANCE OF PRIVATE WRONGS. 
 
 and they also take recognizances or stipulations of certain fidejus- 
 sors in the nature of bail, and in case of default may imprison 
 both them and their principal. They may also fine and imprison 
 for a contempt in the face of the court. And all this is supported 
 by immemorial usage, grounded on the necessity of supporting 
 a jurisdiction so extensive ; though opposite to the usual doctrines 
 of the common law, these being no courts of record, because in 
 general their process is much conformed to that of the civil law. 
 
 III. I am next to consider such injuries as are cognizable by 
 tae courts of the common law. And herein I shall for the 
 present only remark, that all possible injuries whatsoever, that 
 did not fall within the exclusive cognizance of either the eccle- 
 siastical or maritime tribunals, are for that very reason within 
 the cognizance of the common law courts of justice. For 
 it is a settled and invariable principle in the laws of England, 
 that every right when withheld must have a remedy, and every 
 injury its proper redress. The definition and explication of these 
 numerous injuries, and their respective legal remedies, will 
 employ our attention for many subsequent chapters. But before 
 we conclude the present, I shall just mention two species of 
 injuries, which will properly fall now within our immediate con- 
 sideration : and which are, either when justice is delayed by an 
 inferior court that has proper cognizance of the cause ; or, when 
 such inferior court takes upon itself to examine a cause and de- 
 cide the merits without a legal authority. 
 
 I. The first of these injuries, refusal or neglect of justice, is 
 remedied either by writ oi procedendo or of mandamus. A writ 
 oi procedendo ad judicium issues out of the court of chancery, 
 where judges of any subordinate court do delay the parties; for 
 that they will not give judgment, either on the one side or the 
 other, when they ought so to do. In this case a writ of proce- 
 dendo shall be awarded, commanding them in the king's name to 
 proceed to judgment ; but without specifying any particular judg- 
 ment, for that (if erroneous) may be set aside in the course of 
 appeal, or by writ of error or false judgment : and upon farther 
 neglect or refusal, the judges of the inferior court may be pun- 
 ished for their contempt, by writ of attachment returnable in the 
 king's bench or common pleas. 
 
 A writ of mandamus is in general, a command issuing in the 
 king's name from the court of king's bench, and directed to any 
 
OF Th E COGNIZANCE OF PRIVA TE WRONGS. 669 
 
 person, corporation, or inferior court of judicature within the 
 ifing's dominions, requiring them to do some particular thing 
 therein specified, which appertains to their office and duty, and 
 which the court of king's bench has previously determined, or at 
 least supposes to be consonant to right and justice. It is a high 
 prerogative writ, of a most extensively remedial nature ; and may 
 be issued in some cases where the injured party has also another 
 more tedious method of redress, as in the case of admission or 
 restitution of an office ; bat it issues in all cases where the party 
 hath a right to have any thing done, and hath no other specific 
 means of compelling its performance. A mandamus therefore 
 lies to compel the admission or restoration of the party applying 
 to any office or franchise of a public nature, whether spiritual or 
 temporal ; to academical degrees ; to the use of a meeting-house, 
 &c. : it lies for the production, inspection, or delivery of public 
 books and papers ; for the surrender of the regalia of a corporation ; 
 to oblige bodies corporate to affix their common seal ; to compel 
 the holding of a court : and for an infinite number of other pur- 
 poses, which it is impossible to recite minutely. But at present 
 we are more particularly to remark, that it issues to the judges of 
 any inferior court, commanding them to do justice according to 
 the powers ot their office, whenever the same is delayed. For 
 it is the peculiar business of the court of king's bench to super- 
 intend all inferior tribunals, and therein to enforce the due exer- 
 cise of those judicial or ministerial powers, with which the crown 
 or legislature have invested them ; and this not only by restrain- 
 ing their excesses, but also by quickening their negligence, and 
 obviating their denial of justice. A mandamus may therefore be 
 had to the courts of the city of London, to enter up judgment ; to 
 the spiritual courts to grant an administration, to swear a church 
 warden, and the like. This writ is grounded on a suggestion, 
 by the oath of the party injured, of his own right, and the denial 
 of justice below ; whereupon, in order more fully to satisfy the 
 court that there is a probable ground for such interposition, a rule 
 is made (except in some general cases, where the probable ground 
 is manifest) directing the party complained of to show cause why 
 a writ of mandamus should not issue : and, if he shows no sufficient 
 cause, the writ itself is issued, at first in the alternative, either 
 to do thus, or signify some reason to the contrary ; to which a 
 return, or answer, must be made at a certain day. " And if the 
 
670 OF THE COGNIZANCE OF PRIVATE WRONGS. 
 
 inferior judge, or other person to whom the writ is directed, 
 returns or signifies an insufficient reason, then there issues in the 
 second ^\a.cG a. peremptory mandamus, to do the thing absolutely; 
 to which no other return will be admitted, but a certificate of 
 perfect obedience and, due execution of the writ. If the inferior 
 judge or other person makes no return, or fails in his respect 
 and obedience, he is punishable for his contempt by attachment. 
 But if he, at the first, returns a sufficient cause, although it 
 should be false in fact, the court of king's bench will not try the 
 truth of the fact upon affidavits ; but will for the present believe 
 him, and proceed no farther on the mandamus. But then, the 
 party injured may have an action against him for his false 
 return, and (if found to be false by the jury) shall recover dam- 
 ages equivalent to the injury sustained ; together with a peremp- 
 tory mandamus to the defendant to do his duty. Thus much for 
 the injury of neglect or refusal of justice.' 
 
 2. The other iqjury, which is that of encroachment of juris- 
 diction, or calling one coram nonjudice, to answer in a court that 
 has no legal cognizance of the cause, is also a grievance, for 
 which the common law has provided . a remedy by the writ of 
 prohibition. 
 
 ' In this country, the writ of mandamus is generally issued in each State 
 by the highest court of original jurisdiction at law. In causes within the orig- 
 inal jurisdiction of the federal courts, it is issued by the Supreme Court of 
 the United States. It is a general rule that, to entitle a party to a mandamus, 
 there must not only be a clear legal right, but the absence of a plain legal 
 remedy. (^People v. Hawkins, 46 N. Y. 9 ; 112 U. S. 177 ; 54 Conn. 274; 11 
 N. Y. 563.) It may, for instance, be issued to compel a court to restore an 
 attorney who has been improperly removed (7 Wallace, 364 ; 1 Johns. Cas. 
 181) ; or to compel a judicial officer to perform some ministerial duty obliga- 
 tory upon him, or to exercise his jurisdiction (131 U. S. 221) ; but it is not a 
 permissible remedy to control the action of courts or judicial officers in the 
 exercise of judicial discretion (114 U. S. 174; 104 N. Y. 96). So a manda- 
 mus may be issued to compel public officers to perform duties of a ministerial 
 nature, as to require a county clerk to record a deed which has been duly ac- 
 knowledged and certified {Ex parte Goodell, 14 Johns. 325) ; to compel a com- 
 missioner of jurors to strike from the list the name of a person not liable to 
 jury duty {People v. Taylor, 45 Barb. 129) ; and in other similar cases. In 
 like manner a corporation may be required by mandamus to do a specific 
 act, obligatory upon it by law. (104 N. Y. 58; 51 Conn. 137; 48 N. J. L., 
 55.) The practice upon writs of mandamus has been somewhat changed, 
 both in England and in this country, and issue is generally joined by pleading 
 to the return, -instead of bringing an action for a false return as formerly. 
 
OF WRONGS, AND THEIR REMEDIES, ETC. 671 
 
 A prohibition is a writ issuing properly only out of tlie court 
 of king's bench, being t% king's preirogative writ; but, for the 
 furtherance of justice, it n;iay now also be had in some cases out 
 of the court of chancery, common pleas, or exchequer ; directed 
 to the judge and parties of a suit in any inferior court, command- 
 ing them to cease from the prosecution thereof, upon a sugges- 
 tion, that either the cause originally, or some collateral matter 
 arising therein, does not belong to that jurisdiction, but to the 
 cognizance of some other court. And if either the judge or the 
 party shall proceed after such prohibition, an attachment may be 
 had against them, to gunish them for the contempt, at the dis- 
 cretion of the court that awarded it ; and an action will lie against 
 them, to repair the party injured in damages.* 
 
 * Writs of prohibition may be issued by the Supreme Court of the United 
 States to the District Courts, when proceeding as courts of admiralty and 
 maritime jurisdiction. In the respective States, they are generally issued by 
 the supreme court, or the highest court of original jurisdiction at law. Such a 
 writ may be issued to prevent the exercise by a judicial tribunal of jurisdic- 
 tion over matters not within its cognizance, or to prevent it from exceeding 
 its jurisdiction in matters which are within its cognizance. It does not lie to 
 restrain a ministerial act, nor can it take the place of an appeal or writ of 
 error. (Quimbo Appo v. People, 20 N. Y. 531 ; see 60 N. Y. 31 ; 116 U. S. 
 167.) For the practice upon writs of prohibition, the statutes of the several 
 States should be consulted. 
 
 CHAPTER VI. 
 
 [bL. COMM. feOOK III. CH. VTII.] 
 
 Of Wrongs, and their Remedies, Respecting the Rights of Persons. 
 
 The former chapters of this part of our Commentaries having 
 been employed in describing the several methods of redressing 
 private wrongs, either by the mere act of the parties, or the mere 
 operation of law; and in treating of the nature and several 
 species of courts ; together with the cognizance of wrongs or in- 
 juries by private or special tribunals, and the public ecclesiastical, 
 and maritime jurisdictions of this kingdom ; I come noW to con- 
 sider at large, and in a more particular manner, the respective 
 remedies in the public and general courts of common law, for in- 
 juries or private wrongs of any denomination whatsoever, not ex- 
 
672 OF WRONGS, AND THEIR REMEDIES, 
 
 c'usively appropriated to any of the former tribunals. And herein 
 I shall, first, define the several injuries cognizable by the courts 
 of common lavv, with the respective remedies applicable to each 
 particular injury : and shall, secondly, describe the method of 
 pursuing and obtaining these remedies in the several courts. 
 
 First then, as to the several injuries cognizable by the courts 
 of common law, with the respective remedies applicable to each 
 particular injury. And, in treating of these, I shall at present 
 confine riyself to such wrongs as may be committed in the 
 mutua'i intercourse between subject and subject ; which the king, 
 as the fountain of justice, is officially bound to redress in the 
 ordinary forms of law: reserving such injuries or encroachments 
 as may occur between the crown and the subject, to be distinctly 
 considered hereafter, as the remedy in such cases is generally of 
 a peculiar and eccentrical nature. 
 
 Now, since all wrongs may be considered as merely a priva- 
 tion of right, the plain natural remedy for every species of wrong 
 is the being put in possession of that right, whereof the party 
 injured is deprived. This may either be effected by a specific 
 delivery or restoration of the subject-matter in dispute to the 
 legal owner ; as when lands or personal chattels are unjustly 
 withheld or invaded: or where that is not a possible, or at least 
 not an adequate remedy, by making the sufferer a pecuniary 
 satisfaction in damages ; as in case of assault, breach of contract, 
 &c. : to which damages the party injured has acquired an incom- 
 plete or inchoate right, the instant he receives the injury ; though 
 such right be not fully ascertained till they are assessed by the 
 intervention of the law. The instruments whereby this remedy 
 is obtained (which are sometimes considered in the light of the 
 remedy itself) are a diversity of suits and actions, which are de- 
 fined by the Mirror to be "the lawful demand of one's right:" 
 or, as Bracton and Fleta express it, in the words of Justinian, 
 jus prosequendi injudicio quod alicui debetur. 
 
 With us in England the several suits, or remedial instruments 
 of justice, are from the subject of them distinguished into three 
 kinds ; actions, personal, real, and mixed} 
 
 ' Most real and mixed actions have been abolished in England and the 
 United States. The action of chief importance coming within either of 
 these classes, which now exists, is the mixed action of ejectment ; but the 
 procedure in this form of action has heen much changed in modern times. 
 
RESPECTING THE RIGHTS OF PERSONS. 671 
 
 /'«'Jo«a/ actions are such whereby a man claims a debt, OJ 
 personal duty, or damages in lieu thereof : and, likewise, whereby 
 a man claims a satisfaction in damages for some injury done to 
 his person or property. The former are said to be founded on 
 contracts, the latter upon torts or wrongs r and they are the same 
 which the civil law calls " actioncs in personam, qua adversus 
 cum intenduntur, qui ex contractu vel delicto obligatus est aliquid 
 dare vel concedere." Of the former nature are all actions upon 
 debt or promises ; of the latter all actions for trespasses, nui- 
 sances, assaults, defamatory words, and the like. 
 
 Real actions (or, as they are called in the Mirror, feudal ac- 
 tions), which concern real property only, are such whereby the 
 plaintiff, here called the demandant, claims title to have any 
 lands or tenements, rents, commons, or other hereditaments, in 
 fee-simple,- fee-tail, or for term of life. By these actions formerly 
 all disputes concerning real estates were decided ; but they are 
 now pretty generally laid aside in practice, upon account of the 
 great nicety required in their management ; and the inconvenient 
 length of their process : a much more expeditious method of try- 
 ing titles being since introduced, by other actions personal and 
 mixed. 
 
 Mixed diCtions are suits partaking of the nature of the other 
 two, wherein some real property is demanded, and also personal 
 damages for a wrong sustained. As for instance an action of 
 waste : which is brought by him who hath the inheritance, in 
 remainder or reversion, against the tenant for life, who hath com- 
 mitted waste therein, to recover not only the land wasted, which 
 would make it merely a real action ; but also treble damages in 
 pursuance of the statute of Gloucester, which is 3. personal recom- 
 pense ; and so both, being joined together, denominate it a 
 wu enaction. 
 
 Under these three heads may every species of remedy by suit 
 nr action in the courts of common law be comprised. But in 
 urder effectually to apply the remedy, it is first necessary to as- 
 certain the complaint. I proceed therefore now to enumerate 
 the several kinds, and to inquire into the respective nature of all 
 private wrongs, or civil injuries, which may be offered to the 
 rights of either a man's person or his property ; recounting at 
 the same time the respective remedies, which are furnished by 
 the law for every infraction of right. But I must first beg leave 
 
 44 
 
674 OF WRONGS, AND THEIR REMEDIES, 
 
 to premise, that all civil injuries are of two kinds, the one with' 
 oat force or violence, as slander or breach of contract ; the other 
 coupled with force and violence, as batteries or false imprison- 
 ment. Which latter species savor something of the criminal 
 kind, being always attended with some violation of the peace ; 
 for which in strictness of law a fine ought to be paid to the king, 
 as well as a private satisfaction to the party injured. And this 
 distinction of private wrongs, into injuries with and without force, 
 we shall find to run through all the variety of which we are now 
 to treat. In considering of which, I shall follow the same method 
 that was pursued with regard to the distribution of rights : for as 
 these are nothing else but an infringement or breach of those 
 rights, which we have before laid down and explained, it will 
 follow that this negative system, of wrongs, must correspond and 
 tally with the former positive system, of rights. As. therefore 
 we divide all rights into those oi persons and those of things, so 
 we must make the same general distribution of injuries into such 
 as affect the rights of persons, and such as affect the rights of 
 property. 
 
 The rights of persons, we may remember, were distributed 
 into absolute and relative: absolute., which were such as apper- 
 tained and belonged to private men, considered merely as indi- 
 viduals, or single persons ; and relative, which were incident to 
 them as members of society, and connected to each other by 
 various ties and relations. And the absolute rights of each indi- 
 vidual were defined to be the right of personal security, the right 
 of personal liberty, and the right of private property, so that the 
 wrongs or injuries affecting them must consequently be of a 
 correspondent nature. 
 
 I. As to injuries which affect the personal security oi individ- 
 uals, they are either injuries against their lives, their limbs, their 
 bodies, their health, or their reputations. 
 
 I. With regard to the first subdivision, or injuries affecting 
 the life of man, they do not fall under our present contemplation ; 
 bemg one of the most atrocious species of crimes, the subject of 
 the next book of our Commentaries.^ 
 
 ^ No civil action can be brought at common-law to recover damages for 
 wrongfully causing the death of a human being. But in England and in many 
 of the American States, statutes have been passed, providing that, when the 
 death of a person is caused by any wrongful act, neglect, or default, which 
 
RESPECTING THE RIGHTS OF PERSONS. 675 
 
 2, 3. The two next species of injuries, affecting the limbs 01 
 bodies of individuals, I shall consider in one and the same view, 
 And these may be committed, i. By threats and menaces of 
 bodily hurt, through fear of which a man's business is interrupt- 
 ed. A menace alone, without a consequent inconvenience, makes 
 not the injury : but, to complete the wrong, there must be both 
 of them together. The remedy for this is in pecuniary damages, 
 to be recovered by action of trespass vi et armis ; this being an 
 inchoate, though not an absolute violence. 2. By assault ; 
 which is an attempt or offer to beat another, without touching 
 him : as if one lifts up«his cane, or his fist, in a threatening man- 
 ner at another ; or strikes at him, but misses him ; this is an 
 assault, insultiis, which Finch describes to be "an unlawful set- 
 ting upon one's person." ' This also is an inchoate violence, 
 
 would, if death had not ensued, have entitled the injured party to sue for 
 damages, his executor or administrator may bring action and recover dam- 
 ages for the benefit of the relatives of the deceased. (See The Harrisburg, 
 119 U. S. 199; Grosso V. Delaware, &=(. R. Co., 50 N. J. L. 317; Holland 
 s.LynnR. Co., 144 Mass. 425 ; Tilleyv. Hudson River R. Co., 29 N. Y. 252.) 
 
 'An assault may be defined as an offer or attempt to inflict corporalin- 
 jury upon another, accompanied by circumstances which indicate an intent 
 coupled with a present ability, to do actual violence. (See Hays v. People, 
 I Hill, 351.) Every part of this definition is important, (i) It is sufficient 
 that there be an offer or attempt to do violence ; if the attempt be consum- 
 mated by an actual beating or striking, etc., this is a battery. But mere 
 words of abuse will not constitute an assault. (2) The circumstances must 
 indicate an intent to do actual violence. If, therefore, the person making an 
 offer or attempt of violence, uses expressions showing that he has no actual 
 intent to do injury, there is no assault ; as, if one should menace another 
 with his fist or a weapon, but say at the same time : " If you were not an old 
 man, I would knock you down." (See Tuberville v. Savage, 1 Modern Rep. 
 3-) But, as the definition implies, it is not necessary, in order that the act 
 may amount to an assault, that there should be an actual intent to do vio- 
 lence ; but it is sufficient if such an intent be " indicated," i. e., if the circum- 
 stances be such as to lead the person threatened, to believe on reasonable 
 grounds, that violence will actually be done. If, therefore, one points an un- 
 loaded pistol at another, with every appearance of an intention to shoot, and 
 the other party believes it to be loaded, this will amount to an assault. But a 
 distinction is sometimes drawn between civil actions and criminal prosecutions 
 for assault and battery, and actual intent required to be proved in the latter 
 case, while an indicated intent would be held sufficient in the former. (3) 
 There must be a present ability indicated to do actual violence. For if the 
 pereon threatening be so confined or impeded that he cannot inflict the injury 
 which he menaces, there is no assault. (See 59 Vt. 316; 43 Mich. 521.) 
 
 In all cases of justifiable assaults which are mentioned in the text, the 
 
676 OF WRONGS, AND THEIR REMEDIES, 
 
 amounting considerably higher than bare threats ; and therefore, 
 though no actual suffering is proved, yet the party injured may 
 have redress by action of trespass vi et armis ; wherein he shall 
 recover damages as a compensation for the injury. 3. By battery ; 
 which is the unlawful beating of another. The least touching of 
 another's person wilfully, or in anger, is a battery ; for the law 
 cannot draw the line between different degrees of violence, and 
 therefore totally prohibits the first and lowest stage of it ; every 
 man's person being sacred, and no other having a right to meddle 
 with it, in any the slightest manner. And therefore upon a 
 similar principle the Cornelian law de injuriis prohibited /«^a/ii>« 
 as well as verberation ; distinguishing verberation, which was ac- 
 companied with pain, from pulsation, which was attended with 
 none. But battery is, in some cases, justifiable or lawful ; as 
 where one who hath authority, a parent, or master, gives moderate 
 correction to his child, his scholar, or his apprentice. So also 
 on the principle of self-defence : for if one strikes me first, or 
 even only assaults me, I may strike in my own defence ; and, if 
 sued for it, may plead son assault demesne, or that it was the 
 plaintiff's own original assault that occasioned it. So likewise in 
 defence of my goods or possession, if a man endeavors to deprive 
 me of them, I may justify laying hands upon him to prevent 
 him ; and in case he persists with violence, I may proceed to 
 beat him away. Thus too in the exercise of an ofHce, as that of 
 churchwarden or beadle, a man may lay hands upon another to 
 turn him out of church, and prevent his disturbing the congrega 
 tion. And, if sued for this or the like battery, he may set forth 
 the whole case, and plead that he laid hands upon him gently, 
 molliter manus imposuit, for this purpose. On account of these 
 causes of justification, battery is defined to be the unlaivful 
 beating of another ; for which the remedy is, as for assault, by 
 action of trespass viet armis : wherein the jury will give adequate 
 damages. 4. By wounding ; which consists in giving another 
 some dangerous hurt, and is only an aggravated species of bat- 
 force used must be no greater than is reasonable and necessary with refer 
 ence to the exigency of the case ; for any excess of violence, the party may 
 be made responsible. In the defense of the possession of a house or ore's 
 premises, an intruder, who entered peaceably, must first be requested to leave, 
 and only in' case of his refusal can force be used to compel him to depart. 
 (See Brtitenhach v. Trowbridge, 64 Mich. 393 ; Kiffv. Youmans, 86 N. Y. 
 324; Brown v. Gordon, i Gray, 182; Scribner v. Beach, 4 Denio, 448.) 
 
RESPECTING THE RIGHTS OF PERSONS. 677 
 
 tery. 5. By mayhem ; which is an injury still more atrocious, 
 and consists in violently depriving another of the use of a mem- 
 ber proper for his defence in fight. This is a battery, attended 
 with this aggravating circumstance, that thereby the party in- 
 jured is forever disabled from making so good a defence against 
 future external injuries, as he otherwise might have done. 
 Among these defensive members are reckoned not only arms 
 and legs, but a finger, an eye, and a foretooth, and also some 
 others. But the loss of one of the jaw-teeth, the ear, or the nose, 
 is no mayhem at common law ; as they can be of no use in 
 fighting. The same remedial action of trespass vi et armis lies 
 also to recover damages for this injury, an injury which (when 
 wilful) no motive can justify, but necessary self-preservation. If 
 the ear be cut off, treble damages are given by statute 37 Hen. 
 VIII., ch. 6, though this is not mayhem at common law. And 
 here I must observe, that for these four last injuries, assault, 
 battery, wounding, and mayhem, an indictment may be brought 
 as well as an action ; and frequently both are accordingly prose- 
 cuted ; the one at the suit of the crown for the crime against 
 the public ; the other at the suit of the party injured, to make 
 him a reparation in damages.* 
 
 4. Injuries, affecting a man's health, are where, by any un- 
 wholesome practices of another, a man sustains any apparent 
 damage in his vigor or constitution. As by selling him bad 
 provisions, or wine ; by the exercise of a noisome trade, which 
 infects the air in his neighborhood ; or by the neglect or unskil- 
 ful management of his physician, surgeon, or apothecary.^ For 
 it hath been solemnly resolved, that mala praxis is a great mis- 
 demeanor and offence at common law, whether it oe for curiosity 
 and experiment, or by neglect ; because it breaks the trust which 
 the party had placed in his physician, and tends to the patient's 
 destruction. Thus also, in the civil law, neglect or want of skill 
 III physicians or surgeons, " culp(Z adnumerantur, veluti si medi- 
 
 * The offense of mayhem has, in modern times, been extended in some 
 States by statute, so as to include injuries to other parts of the person than 
 members used for defense in fight. Thus, injuries to the nose, lip, ear, etc., 
 causing disfigurement, have been constituted acts of mayhem. But sucfa 
 changes are wholly statutory. (See Jo N. Y. 598 ; 62 Cal. 542.) 
 
 'See Carpenter v. Blake, 60 Barb. 485, 50 N. Y. 696; McCandless y. 
 >4cWha, 22 Penn. St. 261 ; Patten v. Wig^ai, 51 Me. 594. 
 
678 OF WRONGS, AND THEIR REMEDIES, 
 
 cus curationem dereliquerit, male quempiam secuerit, aut perpenim 
 ei medicamenttim dederity These are wrongs or injuries upag- 
 companied by force, for which there is a remedy in damages by 
 a special action of trespass upon the case. This action of trespass, 
 or transgression, on the case, is a universal remedy, given for all 
 personal wrongs and injuries without force ; so called because 
 the plaintiff's whole case or cause of complaint is set forth at 
 length in the original writ. For though in general there are 
 methods prescribed, and forms of actions previously settled, for 
 redressing those wrongs, which most usually occur, and in which 
 the very act itself is immediately prejudicial or injurious to the 
 plaintiff's person or property, as battery, non-payment of debts, 
 detaining one's goods, or the like ; yet where any special con- 
 sequential damage arises, which could not be foreseen and pro- 
 vided for in the ordinary course of justice, the party injured is 
 allowed, both by common law and the statute of Westm. 2, ch. 
 24, to bring a special action on his own case, by a writ formed 
 according to the peculiar circumstances of his own particular 
 grievance. For wherever the common law gives a right or 
 prohibits an injury, it also gives a remedy by action ; and there- 
 fore, wherever a new injury is done, a new method of remedy 
 must be pursued. And it is a settled distinction, that where an 
 act is done which is in itself an immediate injury to another's 
 person or property, there the remedy is usually by an action of 
 trespass vi et armis ; but where there is no act done, but only a 
 culpable omission ; or where the act is not immediately injurious, 
 but only by consequence and collaterally ; there no action of tres- 
 pass vi et armis will lie, but an action on the special case, for the 
 damages consequent on such omission or act. 
 
 5. Lastly.; injuries affecting a man's r^«/'«/?(7» or good name 
 are, first, by malicious, scandalous, and slanderous words, tending 
 to his damage and derogation.^ As if a man maliciously and 
 
 ^ Slander is defamatory accusation addressed to the ear, and is thus dis- 
 tinguished from libel, which is defamatory matter addressed to the eye ; as 
 by writing, pictures, or signs. .Slander is a civil injury only, and the sole 
 mode of redress is by a civil action for damages ; but libel is besides a crimi- 
 nal offense, and a criminal prosecution may be instituted therefor, as well as 
 a civil action. The various forms of slander are divided into four classes : 
 (l.) Charge of an indictable offense, involving moral turpitude. Thus, to 
 accuse a man of zny felonious crime, such as murder, robbery, burglary, rape, 
 etc., would be actionable. But the charge of having committed a misdemeanor 
 
RESPECTING THE RIGHTS OF PERSONS. 679 
 
 falsely utter any slander or false tale of another ; which may 
 either endanger him in law, by impeaching him of some heinous 
 crime, as to say that a man hath poisoned another, or is perjured ; 
 only, would not be slanderous, under the prevailing American rule, unless the 
 offense involved moral turpitude. Thus, the charge of removing a landmark 
 (this being a misdemeanor) has been held to be actionable as a slander. (3 
 Hill, 21 ; see 91 U. S. 225 ; 53 Wis. 444.) But a charge of having committed 
 assault and battery would not be of itself slanderous, for, though this is a crime, 
 yet it is not deemed obnoxious on moral grounds. An imputation of an act 
 involving moral turpitude, but not constituting a crime, would not be slanderous, 
 for both these elements must be involved in the charge ; thus, a charge of 
 adultery would not be slatjderous at common law, since it is not a crime. 
 {Buys V. Gillespie, 2 Johns. 1 15 ; Brooker v. Coffin, J Johns. 188.) But if in 
 any State, adultery were declared to be an indictable offense (which has been 
 done in some States,) an imputation of having committed it would be action- 
 able. (131 Mass. 433.) In England' a charge of any crime is slander /«r se. 
 
 (2.) An imputation of having certain infectious diseases tending to exclude 
 one from society ; as of having leprosy or a venereal disorder. {Hewit v. 
 Mason, 24 How. Pr. 366.) But a charge of having had such a disease is not 
 actionable. (A leading case on slander is Pollard v. Lyon, 91 U. S. 225.) 
 
 (3.) Charges tending to injure a person in his trade, employment, or pro- 
 fession ; as a charge of official misconduct against a public officer {Kinney v. 
 Nash, 3 N. Y. 177) ; of fraudulent practices against a business man {Backus v. 
 Richardson, 5 Johns. 476) ; of insolvency against a merchant or trader {Car- 
 penter v. Dennis, 3 Sandf. 305) ; of unskilfiilness or incompetence against an 
 artizan or mechanic or any person whose employment requires peculiar skill 
 and knowledge {Fitzgerald v. Redfield, ji Barb. 484) ; of general incapacity 
 against a professional man, as a physician or lawyer {Lynde v. Johnson, 39 
 Hun, 12; De Pew v. Robinson, 95 Ind. 109). But it is a general rule, in all 
 such cases, that the imputation must relate directly to the business or pro- 
 fessional character of the person defamed, and that he must be at the time 
 engaged in his occupation or profession. {Ireland v. McGarvish, i Sandf. 
 155; Forwards. Adams, 7 Wend. 204.) It would not, therefore, be action- 
 able to charge a physician with being an incompetent lawyer, or vice versa. 
 
 (4.) Any defamatory imputation, resulting in special damage of a pecun- 
 iary nature to the person defamed ; as if a woman be falsely charged with 
 adultery or unchastity, and lose a profitable situation in consequence ; or, if 
 a man be charged with being a swindler, or with dishonesty, and this occasions 
 his discharge from some position of profit. The damage must be pecuniary, 
 but need not be specifically a loss of money ; a loss of anything whose value 
 is estimable pecuniarily will be sufficient, as a loss of means of support, or of 
 a promised marriage. {Moody v. Baker, 5 Cow. 351.) But the resulting 
 damage must be a proximate consequence of the defamatory charge, and not a 
 remote result. {Terwilliger v. Wands, 17 N. Y. 54; see 11 Q. B. D. 407.) 
 
 The three first classes of slander are termed cases of slander per se, {i.e., 
 of itself, since no proof of a special damage is required), to distinguish them 
 from the fourth class, in which special damage must be proved. If any defem- 
 
680 OF WRONGS, AND THEIR REMEDIES, 
 
 or which may exclude him from society, as to charge him with 
 having an infectious disease ; or which may impair or hurt his 
 trade or livelihood, as to call a tradesman a bankrupt, a physician 
 a quack, or a lawyer a knave. Words spoken in derogation of a 
 peer, a judge, or other great officer of the realm, which are called 
 scandalum magnatum, are held to be still more heinous : and 
 though they be such as would not be actionable in the case of a 
 common person, yet when spoken in disgrace of such high and 
 respectable characters, they amount to an atrocious injury ; which 
 is redressed by an-action on the case founded on many ancient 
 s'^atutes ; as well on behalf of the crown, to inflict the punish- 
 ment of imprisonment on the slanderer, as on behalf of the party, 
 to recover damages for the injury sustained. Words also tend- 
 ing to scandalize a magistrate, or person in a public trust, are 
 reputed more highly injurious than when spoken of a private 
 man. It is said, that formerly no actions were brought for words, 
 unless the slander was such as (if true) would endanger the life 
 of the object of it. But too great encouragement being given by 
 this lenity to false and malicious slanderers, it is now held that 
 for scandalous .words of the several species before-mentioned, 
 (that may endanger a man by subjecting him to the penalties of 
 the law, may exclude him from society, may impair his trade, or 
 may affect a peer of the realm, a magistrate or one in public 
 trust), an action on the case may be had, without proving any 
 
 itory accusations, not coming within the first three classes, are made, and no 
 special damage results, no action can be maintained; as, e. g., a charge o£ 
 unchastity against a woman. But, in some States, the rules of the common 
 law have been somewhat changed by statute. Thus, in New York, it is pro- 
 vided that a woman may maintain an action for a false charge of unchastity, 
 without proof of special damage. (Laws of 1871, ch.219.) It is not necessary. 
 In order to constitute a slander, that the imputation should be made in a di- 
 rect form; it may be made by indirect insinuation, or in the form of an inter- 
 rogation, or as obtained by report from others. (Rundell v. Butler, 7 Barb. 
 260; Johnson v. Brown, 57 Barb. n8.) It will in all cases be a sufficient 
 defense that the accusation is true ; and if, although false, the imputation be 
 made under circumstances of privilege, it will be excused, and no responsi- 
 bility will be incurred. As to the nature of "privileged communications," see 
 the next note. 
 
 In order to maintain an action for slander of title, the words must 
 not only be false and malicious, but must be followed, as a natural and 
 ditect consequence, by pecuniary damage to the owner of the property 
 \KendallM. Stone, 5 N. Y. 14; Like \. McKinstry, 4 Keyes, 397.) 
 The action for scandalutn niagnatutn, is now obsolete. 
 
RESPECTING THE RIGHTS OF PERSONS. 681 
 
 particular damage to have happened, but merely upon the proba- 
 bility that it might happen. But with regard to words that do 
 not thus apparently, and upon the face of them, import such 
 defamation as will of course be injurious, it is necessary that the 
 plaintiff should aver some particular damage to have happened ; 
 which is called laying his action with a per quod. As if I say 
 that such a clergyman is a bastard, he cannot for this bring any 
 action against me, unless he can show some special loss by it ; 
 in which case he may bring his action against me, for saying he 
 was a bastard, per quod, he lost the presentation to such a living. 
 In like manner to slan(^er another mans title, by spreading such 
 injurious reports, as, if true, would deprive him of his estate, 
 (as to call the issue in tail, or one who hath land by descent, a 
 bastard), is actionable, provided any special damage accrues to 
 the proprietor thereby ; as if he loses an opportunity of selling 
 the land. But mere scurrility, or opprobrious words, which 
 neither in themselves import, nor are in fact attended with, any 
 injurious effects, will not support an action. So scandals, which 
 concern matters merely spiritual, as to call a man heretic or 
 adulterer, are cognizable only in the ecclesiastical court ; unless 
 any temporal damage ensues, which may be a foundation for a 
 per quod. Words of heat and passion, as to call a man a rogue 
 and rascal, if productive of no ill consequence, and not of any of 
 the dangerous species before-mentioned, are not actionable : 
 neither are words spoken in a friendly manner, as by way of 
 advice, admonition, or concern, without any tincture or circum- 
 stance of ill-will : for, in both these cases, they are not malicious- 
 ly spoken, which is part of the definition of slander. Neither 
 (as was formerly hinted) are any reflecting words made use of 
 in legal proceedings, and pertinent to the cause in hand, a suffi- 
 cient cause of action for slander. Also if the defendant be able 
 to justify, and prove the words to be true, no action will lie, even 
 though special damage hath ensued : for then it is no slander or 
 false tale. As if I can prove the tradesman a bankrupt, the 
 physician a quack, the lawyer a -knave, and the divine a heretic, 
 this will destroy their respective actions : for though there may 
 be damage sufficient accruing from it, yet, if the fact be true, it 
 is damnum absque injuria ; and where there is no injury, the law 
 gives no remedy. And this is agreeable to the reasoning of the 
 civil law '. " eum qui nocentem infamat, non est cequunt et bonum 
 
682 OF WRONGS, AND THEIR RJIMEDTES, 
 
 ob earn rem condemnari ; delicta enim nocetitium nota esse opcrtei 
 tt expedit." 
 
 A second way of affecting a man's reputation is by printed 
 or written libels, pictures, signs, and the like ; which set him in 
 an odious or ridiculous light, and thereby diminish his reputa 
 tion.' With regard to libels in general, there are, as in many 
 
 ' Libel, considered as the basis of a civil action, may be defined as a mar 
 licious publication in printing, writing, signs, or pictures, imputing to another 
 something which has a tendency to injure his reputation, to disgrace or 
 degrade him in society, or to hold him up to hatred, contempt, or ridicule. 
 This offense is more comprehensive in its scope than slander; since many 
 forms of defamation, which, if made orally, would not be actionable without 
 proof of special damage, are actionable as libels, when circulated in a written 
 oi printed form, without such proof. The ground upon which this distinction 
 rests is that imputations against character, when reduced to writing or printed, 
 are capable of wider dissemination, and longer perpetuation, than when made 
 metely by word of mouth, and therefore work more lasting and injurious re- 
 sults. Hence, charges of certain kinds may be made orally with impunity, 
 which would become actionable if published in writing, either by the author 
 or some person to whom they had been communicated. In all cases in which 
 a civil action may be maintained for libel, a criminal prosecution may also be 
 instituted ; and these remedies are not mutually exclusive, but cumulative. 
 But the theory upon which the criminal doctrine of libel is founded, is differ- 
 ent from that upon which the civil doctrine depends. Libel is deemed a 
 crime, because it tends to cause a breach of the peace, and thus result in 
 public detriment.' In former times, it was judged probable that the person 
 defamed would be provoked to agsault the libeller, or challenge him to combat, 
 and, upon this ground, was originally based the jurisdiction of criminal courts 
 over this offence. But libel is considered the basis of a civil action, not by 
 reason of presumable injury to public welfare, but because it is a violation 
 of the personal right of reputation. This distinction leads to important re- 
 sults. Thus, it is a rule, in the law of libel and slander, that there must be a 
 ''publication " of the defamatory charge — i. e., it must be made known or 
 communicated to some other person or persons than himself by the defamer. 
 In the criminal law, it is deemed a sufficient publication, if the charge is 
 communicated merely to the person libelled, since he might be incensed to 
 commit a breach of the peace, whether others knew of the charge or not. 
 But there could be no civil action maintained, unless the charge were made 
 known to third persons ; since the plaintiff only sues because his reputation 
 has been injured, and reputation is the estimate placed upon a person's char- 
 acter by others than himself. Moreover, proof of the truth of the accusa- 
 tion is always a sufficient defense to a civil action for libel, since a person 
 has no right to a better reputation than his real character would justify ; but 
 at common law, the doctrine that the truth is a sufficient defense to a crim- 
 inal prosecution was so far from being maintained, that it became an estab- 
 lished maxim,—" the greater the truth, the greater the libel." Th's was upon 
 
RESPECTING THE RIGHTS OF PERSONS. 683 
 
 other cases, two remedies ; one by indictment, and the other by 
 action. The former for t\\Q public offence ; for every libel has a 
 
 Lhe ground that a man might be more provoked to retaliation by the publi- 
 cation of a truthful assertion than if it were false ; for, in the latter case, he 
 might overlook it as powerless to do injury, or regard it with contempt. 
 But, in modern times, it is generally provided by statute that the truth shall 
 be a good defense to a criminal prosecution, if the charge be proved to have 
 been published with good motives, and for justifiable ends. But there is 
 evidently still an important difference between the civil and criminal law in 
 this respect. A plea of the truth as a defense is known technically as a 
 "justification." (See g Mete. 410; 53 Conn. 43; 44 Hun, 608.) 
 
 No classification can be given of the various forms of libel, as in the law of 
 slander; and the modes of defamation are so diversified that no compre- 
 hensive enumeration can be given of them. It will be sufficient to refer to 
 a few cases by way of example ; such are charges of fraudulent or dishonest 
 practices ; of criminal acts ; of incontinence or unchastity ; of corruption in 
 office ; of incompetence in one's profession or occupation, etc. (See Steele v. 
 Southwick, 9 Johns. 214; Fry v. Bennett, 28 N. Y. 324; Hunt v. Bennett, 19 
 N. Y. 173; 136 Mass. 164; 60 Md. 158; 81 N. Y. 116; 7 Johns. 264; 46 
 Mich. 341 ; 88 Ind. 137.) An ironical or indirect mode of communicating a 
 libellous charge will be actionable, in the same way as if it had been made 
 directly. 
 
 It is a necessary ingredient, in both libel and slander, that the defamation 
 be malicious. A distinction is made between malice in fact and malice in law. 
 The former denotes actual ill-will or malevolence, or other actual wrongful 
 motive ; the latter, that disposition of mind from which proceed wrongful acts 
 done without just cause or excuse. In ordinary cases of libel, where there 
 are no circumstances of privilege which are claimed to render the charge 
 excusable, malice is conclusively inferred from the falsity and defamatory 
 nature of the charge, and need not be specially proved. This is malice in 
 law, and the presumption of its existence is so absolute that the defendant 
 is not permitted to deny it. But when there are circumstances of privilege, 
 actual malice must be proved to exist, or the plaintiff cannot maintain his 
 action. 
 
 Privileged Communications. — These are communications which, though 
 defamatory and unfounded, are yet held to be excusable, because made in 
 the performance of some legal, social or moral duty, for the protection of 
 valuable interests, or for like salutary causes. They are divided into two 
 important classes ; — those which are absolutely privileged, and those which 
 are conditionally privileged. The former can never be made the basis of 
 an action, though characterized by the most express malice ; while the latter 
 will be actionable, if actual malice be proved to have existed. It is essential 
 to exoneration, in this class of cases, that the charge be made in good faith, 
 with belief in its truth. There are two classes of communications which are 
 absolutely privileged : (i) Proceedings in legislative assemblies in the trans- 
 action of public business, as reports upon any subject, speeches, etc. (2) 
 Proceedings in judicial tribunals, which are pertinent to any cause of which 
 
684 OF WRONGS, AND THEIR REMEDIES, 
 
 tendency to the breach of the peace, by pro\oking the person 
 libelled to break it : which offence is the same (in point of law) 
 whether the matter contained be true or false ; and therefore the 
 defendant, on an indictment for publishing a libel, is not allowed 
 to allege the truth of it by way of justification. But in the 
 remedy by action on the case, which is to repair the party in 
 damages for the injury done him, the defendant may, as for 
 words spoken, justify the truth of the facts, and show that the 
 plaintiff has received no injury at all. What was said with re- 
 gard to words spoken, will also hold in every particular with re- 
 gard to libels by writing or printing, and the civil actions conse- 
 quent thereupon : but as to signs or pictures, it seems necessary 
 always to show, by proper innuendos and averments of the de- 
 fendant's meaning, the import and application of the scandal, 
 and that some special damage has followed ; otherwise it cannot 
 appear, that such libel by picture was understood to be levelled 
 at the plaintiff, or that it was attended with any actionable con- 
 sequences. 
 
 A third way of destroying or injuring a man's reputation is 
 by preferring malicious indictments or prosecutions against him; 
 which, under the mask of justice and public spirit, are sometimes 
 made the engines of private spite and enmity. For this, how- 
 ever, the law has given a very adequate remedy in damages, 
 either by an action of conspiracy, which cannot be brought but 
 against two at the least ;f or, which is the more usual way, by a 
 special action on the case for a false and malicious prosecution. 
 In order to carry on the former (which gives a recompense for 
 the danger to which the party has been exposed) it is necessary 
 that the plaintiff should obtain a copy of the record of his in- 
 
 the court has jurisdiction. (See 50 N. Y. 309 ; 69 Md. 143 & 179 ; 69 Cal. 625 ; 
 75 Ind. 55 ; 1 1 Q. B. D. 588.) As illustrations of conditionally privileged com- 
 munications, the following instances may be referred to : Petitions to the legis- 
 lature or proper public officers to secure public reforms ; communications made 
 by a public officer in the discharge of a public duty ; statements in regard to 
 the character of servants made to those who intend to employ them ; communi- 
 cations between partners or persons connected in business for the protection 
 of their private interests ; fair criticisms upon published works, etc. {Byam v. 
 Collins, I u N. Y. 143 ; White v. Nicholls, 3 How. (U.. S.) 266 ; see 16 Q. B. D. 
 1 12 ; 23 id. 400 ; 50 N. J. L. 275 ; 1 1 1 Pa. St. 404 ; 64 Md. 589.) The doctrine of 
 privileged communications applies to the law of slander as well as to that of libel. 
 
 t As a general rule, a civil action may be brought for a conspiracy to do any injury, followed by 
 act.s in furtherance thereof and consequent damage (113 U. S. 104; in Pa. St. 335; 65N. Y. 89): a 
 verdict against only one defendant is sometimes sustamable. (7 Hill, 104: 125 Pa. St. 123.) 
 
RESPECTING THE RIGHTS OF PERSONS. 6Zs 
 
 dictment and acquittal ; but, in prosecutions for felony, it is 
 usual to deny a copy of the indictment, where there is any, the 
 least, probable cause to found such prosecution upon. For il 
 would be a very great discouragement to the public justice ol 
 the kingdom, if prosecutors, who had a tolerable ground of sus- 
 picion, were liable to be sued at law whenever their indictments 
 miscarried. But an action on the case for a malicious prosecu- 
 tion may be founded upon an indictment, whereon no acquittal 
 can be had ; as if it be rejected by the grand jury, or be coram 
 nonjudice, or be insufficiently drawn. For it is not the danger 
 of the plaintiff, but Ijie scandal, vexation, and expense, upon 
 which this action is founded. However, any probable cause for 
 preferring it is sufficient to justify the defendant.* 
 
 II. We are next to consider the violation of the right of per- 
 sonal liberty. This is effected by the injury of false imprison- 
 ment, for which the law has not only decreed a punishment, as a 
 heinous public crime, but has also given a private reparation to 
 
 ' In order to sustain an action for malicious prosecution. It is necessary 
 to allege and prove, — (i) that the defendant instituted the criminal prosecu- 
 tion or civil action, which is complained of as unjustifiable ; (2) that this was 
 done through malice, (3) and without probable cause ; and (4) that such 
 prosecution has terminated in favor of the now plaintiff, if from its nature 
 it was capable of such a termination. The gist of the proof is, to estab- 
 lish want of probable cause to justify the previous prosecution. Probable 
 cause is defined as a reasonable suspicion, supported by circumstances suf- 
 ficient to warrant a cautious man in the belief that the person accused is 
 guilty of the offense charged. {Foshay v. Ferguson, 2 Denio, 617.) It does 
 not depend upon the guilt or innocence of the accused, but upon the reason- 
 able belief of the prosecutor concerning such guilt or innocence. If, there- 
 fore, the person accused were really innocent, but the prosecutor believed 
 him guilty, and had reasonable grounds for his belief, this will be a complete 
 defense to a subsequent action for malicious prosecution. The malice required 
 to be proved is malice in fact, i. e., a direct malevolent purpose or other actual 
 wrongful motive ; but whether such motive existed is for the jury to decide ; 
 they may {may, not tuusl) infer it from the absence of probable cause. But al- 
 though the most express malice be proved to exist, the want of probable cause 
 cannot be inferred therefrom ; for a man may have a jiist ground of action, and 
 he justified in prosecuting ft at law, though he act from positive malevolence. 
 The termination of the prosecution must be proved, because, if not terminated, 
 it may result in a conviction of the person accused ; and a conviction would be 
 conclusive evidence that probable cause did exist, so that no suit for such pros- 
 ecution would be maintainable. (See Marks v. Toivnsend, 97 N. Y. 590; Anderson 
 V. How, 116 N. y. 336; Abrath v. iV. E. R. Co., 11 Q. B. D. 446, n App. Cas. 247; 
 Crescent Co. v. Butchers' Union, 120 U. S., 141 ; also 109 Mass. 158; 56 Mich. 366; 
 66 Me. 202.) 
 
686 OF WRONGS, AND THEIR REMEDIES, 
 
 the party ; as well by removing the actual confinement for the 
 present, as, after it is over, by subjecting the wrongdoer to a civil 
 action, on account of the damage sustained by the loss of time 
 and liberty. 
 
 To constitute the injury of false imprisonment there are two 
 points requisite: i. The detention of the person : and, 2. The 
 unlawfulness of such detention. Every confinement of the person 
 is an imprisonment, whether it be in a common prison, or in a 
 private house, or in the stocks, or even by forcibly detaining one 
 in the public streets." Unlawful, or false, imprisonment consists 
 in such confinement or detention without sufficient authority : 
 which authority may arise either from some process from the 
 courts of jusace, or from some warrant from a legal officer having 
 power to commit, under his hand and seal, and expressing the 
 cause of such commitment ; or from some other special cause 
 warranted, for the necessity of the thing, either by common law, 
 or act of parliament ; such as the arresting of a felon by a private 
 person without warrant, the impressing of mariners for the public 
 service, or the apprehending of wagoners for misbehavior in 
 the public highways. False imprisonment also may arise by 
 executing a lawful warrant or process at an unlawful time, as on 
 a Sunday ; for the statute hath declared, that such service or 
 process shall be void. This is the injury. Let us next see the 
 remedy : which is of two sorts ; the one removing the injury, the 
 other making satisfaction for it. 
 
 The principal means of removing the actual injury of false 
 imprisonment is by writ of habeas corpus. 
 
 Of this there are various kinds made use of by the courts at 
 Westminster, for removing prisoners from one court into another 
 for the more easy administration of justice. Such is the habeas 
 
 ' A manual touching of the body is not necessajy to constitute an arre-'t 
 and imprisonment ; it is suflScient if a person, on being informed that an 
 oflScer has a warrant for him, submits to such officer's control, or, being in- 
 fluenced by demonstrations of violence, submits to restraint upon his liberty. 
 (Bissell V. Gold, I Wend. 210.) If a person be arrested and detained with- 
 out legal cause, — or without legal process, when, although there be legal cause, 
 legal process is necessary, — or upon invalid process, — or upon an unlawful oc- 
 casion, — this will constitute false imprisonment, and an action will be main- 
 tainable to recover damages. {Kilbourn v. Thompson, 103 U.S. 168; Lynch 
 v. Metr. R. Co., 90 N. Y-. 77 ; Burns v. Erben, 40 N. Y. 463 ; Ross v. , 
 61 Mich. 44S ; Bath v. Metcalf, 145 Mass. 274.) 
 
RESPECTING THE RIGHTS OF PERSONS. 68; 
 
 corpus ad respondendutn, when a man hath a cause of action 
 against one who is confined' by the process of some inferior 
 court ; in order to remove the prisoner, and charge him with this 
 new action in the court above. Such is that ad satisfaciendum, 
 when a prisoner hath had judgment against him in an action, and 
 the plaint ff is desirous to bring him up to some superior court 
 to charge him with process of execution. Such also are those ad 
 prosequendum, testificandum, deliberandum, &c.; which issue 
 when it is necessary to remove a prisoner, in order to prosecute 
 or bear te">timony in any court, or to be tried in the proper juris- 
 diction wherem the f^ct was committed. Such is, lastly, the 
 common writ ad faciendum et recipiendum, which issues out of 
 any of the courts of Westminster-hall, when a person is sued in 
 some inferior jurisdiction, and is desirous to remove the action 
 into the superior court ; commanding the inferior judges to pro- 
 duce the body of the defendant, together with the day and cause 
 of his caption and detainer (whence the writ is frequently denom- 
 inated a habeas corpus cum causd) to do and receive what- 
 soever the king's court shall consider in that behalf. This is a 
 writ grantable of common right, without any motion in court, 
 and it instantly supersedes all proceedings in the court below. 
 
 But the great and efficacious writ, in all manner of illegal 
 confinement, is that of habeas corpus ad subjiciendum ; directed 
 to the person detaining another, and commanding him to produce 
 the body of the prisoner, with the day and cause of his caption 
 and detention, ad faciendum, subjiciendum., et recipiendum, to do, 
 submit to, and receive whatsoever the judge or court awarding 
 such writ shall consider in that behalf. This is a high prerog- 
 ative writ, and therefore by the common law issuing out of the 
 court of king's bench not only in term-time, but also during the 
 vacation, by a fiat from the chief justice or any other of the 
 judges, and running into all parts of the king's dominions ; for 
 the king is at all times entitled to have an account, why the 
 liberty of any of his subjects is restrained, wherever that restraint 
 may be inflicted. If it issues in vacation, it is usually returnable 
 before the judge himself who awarded it, and he proceeds by 
 himself thereon ; unless the term shall intervene, and then it may 
 be returned in court. Indeed if the party were privileged in the 
 courts of common pleas and exchequer, as being (or supposed to 
 be) an officer or suitor of the court, a habeas corpus ad subjicien- 
 
6S8 OF WRONGS, AND THEIR REMEDIES, 
 
 dum might also by common law have been awarded from thence ; 
 and, if the cause of imprisonment were palpably illegal, they 
 might have discharged him : but, if he were committed for any 
 criminal matter, they could only have remanded him, or taken 
 bail for his appearance in the court of king's bench, which occas- 
 ioned the common pleas for some time to discountenance such 
 applications. But since the mention of the king's bench and 
 common pleas, as co-ordinate in this jurisdiction, by statute iC 
 Car. I., ch. lo, it hath been holden, that every subject of the 
 kingdom is equally entitled to the benefit of the common law 
 writ, in either of those courts, at his option. It hath also been 
 said, and by very respectable authorities, that the like habeas cor- 
 pus may issue out of the court of chancery in vacation ; but upon 
 the famous application to Lord Nottingham by Jenks, notwith- 
 standing the most diligent searches, no precedent could be found 
 where the chancellor had issued such a writ in vacation, and 
 therefore his lordship refused it." 
 
 In the king's bench and common pleas it is necessary to ap- 
 ply for it by motion to the court, as in the case of all other pre- 
 rogative writs {certiorari, prohibition, mandamus, etc.) which do 
 not issue as of mere course, without showing some probable cau.se 
 why the extraordinary power of the crown is called in to the 
 party's assistance. For, as was argued by Lord Chief Justice 
 Vaughan, " it is granted on motion, because it cannot be had of 
 course ; and there is therefore no necessity to grant it : for the 
 court ought to be satisfied that the party hath a probable cause 
 to be delivered." And this seems the more reasonable, because 
 (when once granted) the person to whom it is directed can re- 
 turn no satisfactory excuse for not bringing up the body 
 of the prisoner. So that if it issued of mere course, with- 
 out showing to the court or judge some reasonable ground for 
 awarding it, a traitor or felon under sentence of death, a soldier 
 or mariner in the king's service, a wife, a child, a relation, or a 
 domestic, confined for insanity, or other prudential reasons, 
 might obtain a temporary enlargement by suing out a habeas 
 corpus, though sure to be remanded as soon as brought up to the 
 
 ' [But it was determined, after a very elaborate investigation of all (lie 
 authorities by Lord Eldon in Crowley's Case, that the Lord Chancellor can 
 issue the writ of habeas corpus at common law in vacation, overruling the 
 decision in Jenks's Case. (See 2 Swanston, i.)] 
 
RESPECTING THE RIGHTS OF PERSONS. 6.Sc, 
 
 ccar.. And therefore Sir Edward Coke, when chief justice did 
 not scruple in 13 Jac. I., to deny a habeas corpus to one confined 
 by the court of admiralty for piracy ; there appearing, upon his 
 own showing, sufficient grounds to confine him. On the other 
 hand, if a probable ground be shown, that the party is impris- 
 oned without just cause, and therefore hath a right to be delivered, 
 the writ of habeas corpus is then a writ of right, which " may not 
 be denied, but ought to be granted to every man that is commit- 
 ted, or detained in prison, or otherwise restrained, though it be 
 by the command of the king, the privy council or any other." 
 
 In a former part of ^ese Commentaries we expatiated at large 
 on the personal liberty of the subject. This was shown to be a 
 natural inherent right, which could not be surrendered or for- 
 feited unless by the commission of some great and atrocious crime, 
 and which ought not to be abridged in any case without the 
 special permission of law. A doctrine coeval with the first rudi- 
 ments of the English Constitution, and handed down to us from 
 our Saxon ancestors, notwithstanding all their struggles with tlie 
 Danes, and the violence of the Norman conquest : asserted afte-r- 
 wards and confirmed by the Conqueror himself and his descend- 
 ants ; and though sometimes a little impaired by the ferocity of 
 the times, and the occasional despotism of jealous or usurping 
 princes, yet established on the firmest basis by the provisions of 
 magna charta, and a long succession of statutes enacted under 
 Edward III. To assert an absolute exemption from imprison 
 ment in all cases, is inconsistent with every idea of law and po- 
 litical society ; and in the end would destroy all civil liberty, by 
 rendering its protection impossible : but the glory of the English 
 law consists in clearly defining the times, the causes, and the 
 extent, when, wherefore, and to what degree the imprisonment 
 of the subject may be lawful. This it is, which induces the ab- 
 solute necessity of expressing upon every commitment the reason 
 fir which it is made : that the court upon a habeas corpus may 
 examine into its validity ; and according to the circumstances 
 uf the case may discharge, admit to bail, or remand the pris- 
 oner. 
 
 And yet, early in the reign of Charles I., the court of king's 
 bench, relying on some arbitrary precedents (and those perhaps 
 misunderstood) determined that they could not upon a habeas 
 '■orpus either bail or deliver a prisoner, though committed with 
 
 45 
 
690 OF WRONGS, AND THEIR REMEDIES, 
 
 out any cause assigned, in case he was committed by the specia* 
 command of the king, or by the lords of the privy council. This 
 drew on a parliamentary inquiry, and produced the petition of 
 right, 3 Car. I., which recites this illegal judgment, and enacts 
 that no freeman hereafter shall be so imprisoned or detained. 
 But when, in the following year, Mr. Selden and others were 
 committed by the lords of the council, in pursuance of his majes- 
 ty's special command, under a general charge of " notable con- 
 tempts and stirring up sedition against the king and government," 
 the judges delayed for two terms (including also the long vaca- 
 tion) to deliver an opinion how far such a charge was bailable. 
 And when at length they agreed that it was, they however an- 
 nexed a condition of finding sureties for the good behavior, 
 which still protracted their imprisonment, the chief justice. Sir 
 Nicholas Hyde, at the same time declaring, that " if they were 
 again remanded for that cause, perhaps the court would not af- 
 terwards grant a habeas corpus, being already made acquainted 
 with the cause of the imprisonment." But this was heard with 
 indignation and astonishment by every lawyer present, accord- 
 ing to Mr. Selden's own account of the matter, whose resentment 
 was not cooled at the distance of four-and-twenty years. 
 
 These pitiful evasions gave rise to the statute 16 Car. I., ch. 
 10, § 8, whereby it is enacted, that if any person be committed 
 by the king himself in person, or by his privy council, or by any 
 of the members thereof, he shall have granted unto him, without 
 any delay upon any pretence whatsoever, a writ of habeas corpus, 
 upon demand or motion made to the court of king's bench or 
 common pleas ; who shall thereupon, within three court days af- 
 ter the return is made, examine and determine the legality of 
 such commitment, and do what to justice shall appertain, in de- 
 livering, bailing, or remanding such prisoner. Yet still in the 
 case of Jcnks, before allilded to, who in 1676 was committed bj 
 the king in council for a turbulent speech at Guildhall, new shifts 
 and devices were made use of to prevent his enlargement by 
 law, the chief justice' (sts well as the chancellor) declining to 
 award a writ of habeas corpus ad subjiciendum in vacation, though 
 at last he thought proper to award'the usual writs ad deliberan- 
 dum, &c., whereby the prisoner was discharged at the Old Bailey. 
 Other abuses had also crept into daily practice, which had in 
 some measure defeated the benefit of this great constitutional 
 
RESPECTING THE RIGHTS OF PERSONS. 691 
 
 remedy. The party imprisoning was at liberty to delay his 
 obedience to the first writ, and might wait till a second and a 
 third, called an alias and a pluries, were issued, before he pro- 
 duced the party : and many other vexatious shifts were practiced 
 to detain state-prisoners in custody. But whoever will atten- 
 tively consider the English history, may observe, that the flagrant 
 abuse of any power, by the crown or its ministers, has always 
 been productive of a struggle ; which either discovers the exer- 
 cise of that power to be contrary to law, or (if legal) restrains it 
 for the future. This was the case in the present instance. The 
 oppression of an obscufe individual gave birth to the famous 
 habeas corpus act, 31 Car. II., ch. 2, which is frequently consid- 
 ered as another magna charta of the kingdom : and by conse- 
 quence and analogy has also in subsequent times reduced the 
 general method of proceeding on these writs (though not within 
 the reach of that statute, but issuing merely at the common law) 
 to the true standard of law and liberty. 
 
 The statute itself enacts, i. That on complaint and request 
 in writing by or on behalf of any person committed and charged 
 with any crime (unless committed for treason or felony expressed 
 in the warrant ; or as accessory, or on suspicion of being accessory, 
 before the fact, to any petit-treason or felony ; or upon suspicion 
 of such petit-treason or felony, plainly expressed in the warrant ; 
 or unless he is convicted or charged in execution by legal process) 
 the lord chancellor or any of the twelve judges, in vacation, upon 
 viewing a copy of the warrant, or affidavit that a copy is de- 
 nied, shall (unless the party has neglected for two terms to apply 
 to any court for his enlargement) award a habeas corpus for such 
 prisoner, returnable immediately before himself or any other of 
 the judges ; and upon the return made shall discharge the party, 
 if bailable, upon giving security to appear and answer to the ac- 
 cusation in the proper court of judicature. 2. That such writs 
 shall be indorsed, as granted in pursuance of this act, and signed 
 by the person awarding them. 3. That the writ shall be re- 
 turned and the prisoner brought up, within a limited time 
 arcording to the distance, not exceeding in any case ' twenty 
 days. 4. That officers and keepers neglecting to make due re- 
 turns, or not delivering to the prisoner or his agent withiti six 
 tours after demand a copy of the warrant of commitment, or 
 ''lifting the custody of a prisoner from orne to another, withouJ 
 
692 OF WRONGS, AND THEIR REMEDIES, 
 
 sufficient reason or authority (specified in the act), shall for the 
 first offence forfeit lOo/. and for the second offence 200/. to the 
 party grieved, and be disabled to hold his office. 5. That no per- 
 son once delivered by habeas corpus, shall be recommitted for the 
 same offense, on penalty of 500/. 6. That every person com- 
 mitted for treason or felony shall, if he requires it the first week 
 of the next term, or the first day of the next session of oyer and 
 terminer, be indicted in that term or session, or else admitted to 
 bail : unless the king's witnesses cannot be produced at that time : 
 and if acquitted, or if not indicted and tried in the second term 
 or session, he shall be discharged from his imprisonment for 
 such imputed offence ; but that no person, after the assizes shall 
 he open for the county in which he is detained, shall be removed 
 by habeas corpus, till after the assizes are ended ; but shall be 
 left to the justice of the judges of assize. 7. That any such 
 prisoner may move for and obtain his habeas corpus, as well out 
 of the chancery or exchequer, as out of the king's bench or com- 
 mon pleas ; and the lord chancellor or judges denying the same, 
 on sight of the warrant or oath that the same is refused, forfeit 
 severally to the party grieved the sum of 500/. 8. That this writ 
 of habeas corpus shall run into the counties palatine, cinque ports 
 and other privileged places, and the islands of Jersey and Guern- 
 sey. 9. That no inhabitant of England (except persons contract- 
 ing, or convicts praying to be transported ; or having committed 
 some capital offence in the place to which they are sent) shall be 
 sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places 
 beyond the seas, within or without the king's dominions ; on pain 
 that the party committing, his advisers, aiders, and assistants, 
 shall forfeit to the party aggrieved a sum not less than t,ool. to 
 be recovered with treble costs ; shall be disabled to bear any 
 office of trust or profit ; shall incur the penalties of pramunire ; 
 and shall be incapable of the king's pardon. 
 
 This is the substance of that great and important statute : 
 which extends (we may observe) only to the case of commitments 
 for such criminal charge, as can produce no inconvenience to 
 public justice by a temporary enlargement of the prisoner : all 
 other cases of unjust imprisonment being left to the habeas cor- 
 pus at common law." But even upon writs at the common law 
 
 " By statute 56 Geo. III., ch. 100, provision was made for tlie issue of a 
 writ of habeas corpus, in case a person is confined " otherwise than for some 
 
RESPECTING THE RIGHTS OF PERSONS. 693 
 
 it is now expected by the court, agreeable to ancient precedents 
 and the spirit of the act of parliament, that the writ should be 
 immediately obeyed, without waiting for any alias or pluries ; 
 otherwise an attachment will issue. By which admirable regu- 
 lations, judicial as well as parliamentary, the remedy is now com- 
 plete for removing the injury of unjust and illegal confinement. 
 A remedy the more necessary, because the oppression does not 
 always arise from the ill-nature, but sometimes from the mere 
 inattention of government." For it frequently happens in foreign 
 countries (and has happened in England during temporary sus- 
 pensions of the statute), that persons apprehended upon suspi- 
 cion have suffered a long imprisonment, merely because they were 
 forgotten." 
 
 criminal, or supposed criminal, matter,'' except he be imprisoned for debt or 
 by process in any civil suit. Power to issue the writ was also conferred upon 
 the Court of Exchequer. 
 
 " " Besides the efficacy of the writ of habeas corpus, in liberating the 
 subject from illegal confinement in a public prison, it also extends its influ- 
 ence to remove every unjust restraint of personal freedom in private life, 
 though imposed by a husband on his wife, or by a father on his child ; but 
 when a feme-covert or an infant is brought before the court by habeas cor- 
 pus, the court will only set such person free from an unmerited or unreason- 
 able confinement, and will not determine the validity of a marriage, or the 
 right to guardianship of an infant. Though, if a child is too young to have 
 any discretion of its own, the court will deliver it into the custody of its parent, 
 or of the person who appears to be its legal guardian." (Broom & Hadley's 
 Comm. iii., 147. See also People v. Mercein, 8 Paige, 47 ; Ex parte Wol- 
 stonecraft, 4 Johns. Ch. 80.) 
 
 ''Statutes, similar in their general provisions to the English Habeas Cor 
 pus Act, have been enacted in the several American States. They are not 
 confined in their application merely to imprisonment upon criminal charges, 
 but extend generally to all cases of illegal restraint upon personal liberty. 
 The mode of procedure in the issue of the writ is usually regulated by stat- 
 utory provisions. The usual practice is, that application is made for the writ 
 by petition signed by the person under confinement, or by some one in his 
 behalf. This is addressed to the proper court, or a judge thereof, and if the 
 writ be legally applied for, it must be granted, or the judge will incur a peii 
 .alty for his refusal. The writ is directed to the person having the prisoner 
 (in custody, and is made returnable at a specified time and place. The per- 
 son to whom it is directed is required to state in his " return " the grounds 
 of the detention, and also to bring the prisoner in his custody before the 
 court or officer when the return is made. The prisoner may then " traverse 
 the return "— /. e., deny any of the material facts set forth therein ; or allege 
 »ny fact to show that his imprisonment or detention is unlawful, or that he 
 "s entitlel to his 4"scharge. The question as to the rightfulness of tl e de 
 
^4 OF WRONGS, AND THEIR REMEDIES, 
 
 The satisfactory remedy for this injury of false imprisonmenl 
 is by an action of trespass vi et armis, usually called an action of 
 false imprisonment : which is generally, and almost unavoidably, 
 accompanied with a charge of assault and battery also : and 
 therein the party shall recover damages for the injury he has re- 
 ceived ; and also the defendant is, as for all other injuries com- 
 mitted with force, or vi et armis, liable to pay a fine to the king 
 for the violation of the public peace. 
 
 III. With regard to the third absolute right of individuals, or 
 that of private property, though the enjoyment of it when ac- 
 quired, is strictly a personal right ; yet as its nature and original 
 and the means of its acquisition or loss, fall more directly under 
 our second general division, of the rights of things ; and as of 
 course, the wrongs that affect these rights must be referred to 
 t;he corresponding division in the present book of our Commen- 
 taries ; I conceive it will be more commodious and easy to con- 
 sider together, rather than in a separate view, the injuries that 
 may be offered to the enjoyment, as well as to the rights, of prop- 
 erty. And therefore I shall here conclude the head of injuries 
 affecting the absolute rights of individuals. 
 
 We are next to contemplate those which affect their relative 
 rights ; or such as are incident to persons considered as members 
 of society, and connected to each other by various ties and rela- 
 
 tention is thus presented to the court for its determination ; and the jurisdic- 
 tion of the court extends to discharging or remanding the prisoner, or ad- 
 mitting him to bail, as the case may seem to require. In cases of detention 
 upon legal process, the court will not inquire into the merits of the case, and 
 attempt to determine the guilt or innocence of the prisoner, but will only de- 
 cide whether his commitment was regular, and in due accordance with law. 
 {People V. McLeod, 25 Wend. 483 ; People v. Kelly, 24 N. Y. 74; Bennac 
 V. People, 4 Barb. 31.) But the jurisdiction of the court, by which the pris- 
 oner was committed, may be inquired into, and if it be satisfactorily estab- 
 lished that it had no jurisdiction, he will be discharged. The same is true, 
 if the court has general jurisdiction of similar cases, but it has exceeded such 
 jurisdiction in the confinement of the person applying for the writ. {Ex 
 parte Lange, 18 Wallace, 163 ; see 60 N. Y. 559 ; 123 U. S. 443 ; 131 U. S. 176.) 
 The courts and judges of the United States have authority to issue the 
 writ of habeas corpus in cases coming within the Federal jurisdiction. The 
 State courts have no right to discharge a person upon habeas corpus who is 
 held under the authority of the general government. (Tarblc's case, 13 Wal- 
 lace, 397.) Nor has a United States court power to issue its writ to bring 
 up a prisoner confined under sentence or execution of a State court, for anj 
 other purpose than to use him as a witness. 
 
RESPECTING THE RIGHTS OF PERSONS. 695 
 
 tions ; and, in particular, such injuries as may be done to persons 
 under the four following relations, husband and wife, parent and 
 child, guardian and ward, master and servant. 
 
 I. Injuries that may be ofEered to a person, considered as a 
 husband, are principally three : abduction, or taking away a man's 
 wife ; adultery, or criminal conversation with her ; and beating 
 or otherwise abusing her. i. As to the first soTt, abduction, or 
 taking her away, this may either be by fraud and persuasion, or 
 open violence : though the law in both cases supposes force and 
 constraint, the wife having no power to consent ; and therefore 
 gives a remedy by writ of ravishment, or action of trespass vi et 
 amis, de uxore rapta et abducta. This action lay at the common 
 law ; and thereby the husband shall recover, not the possession 
 of his wife, but damages for taking her away : and by statute 
 Westm. I, 3 Edw. I., ch. 13, the offender shall also be imprisoned 
 two years, and be fined at the pleasure of the king. Both the king 
 and the husband may therefore have this action ; and the husband 
 is also entitled to recover damages in an action on the case against 
 such as persuade and entice the wife to live separate from him 
 without a sufficient cause." The old law was so strict in this 
 point, that if one's wife missed her way upon the road, it was not 
 lawful for another man to take her into his house, unless she was 
 benighted and in danger of being lost or drowned : but a stranger 
 might carry her behind him on horseback to market to a justice 
 of the peace for a warrant against her husband, or to the spiritual 
 court to sue for a divorce. 2. Adultery, or criminal conversation 
 with a man's wife, though it is, as a public crime, left by our laws 
 to the co-ercion of the spiritual courts ; yet, considered as a civil 
 
 '* An action will lie by a husband for enticing away his wife, on the 
 ground of loss of her society and services ; and also for harboring her, after 
 she has deserted him without cause, provided he has given notice to the per- 
 son receiving her not to harbor her, or such person knew that the desertion 
 was wrongful and without cause. But if he has compelled her to leave 
 him by cruelty, misconduct, or ill-treatment, he forfeits his marital right to 
 her society, and cannot maintain action against any one who harbors her, 
 though after notice given. The material point of inquiry, in actions of this 
 kind, is the intent with which the defendant acted ; a mere act of hospitality 
 will not render him responsible ; and if he be the wife's father, stronger evi- 
 dence of malicious intent will be required than in the case of a stranger, the 
 presumption being that he was actuated by proper motives. {Bennett v. 
 Smith, 21 Barb. 439; Heermance v. James, 47 Barb. 120; Holtz v. Dick, 42 
 0. St. 23; see 49 Mich. 529; loi Ind. 160; 106 Pa. St. 373; 82 Mo. 534.) 
 
f59<5 OF WRONGS, AND THEIR REMEDIES, 
 
 injury (and surely there can be no greater), the law gives a satis 
 faction to the husband for it by action of trespass vi et armis 
 against the adulterer, wherein the damages recovered are usually 
 very large and exemplary. But these are properly increased and 
 diminished by circumstances ; as the rank and fortune of the 
 plaintiff and defendant ; the relation or connection between them ; 
 the seduction or otherwise of the wife, founded on her previous 
 behavior and character ; and the husband's obligation by set- 
 tlement or otherwise to provide for those children, which he 
 cannot but suspect to be spurious. In this case, and upon in- 
 dictments for polygamy, a marriage in fact must be proved ; 
 though generally, in other cases, reputation and cohabitation are 
 sufficient evidence of marriage. 3. The third injury is that of 
 beating a man's wife, or otherwise ill-using her ; for which, if it 
 be a common assault, battery, or imprisonment, the law gives the 
 usual remedy to recover damages, by action of trespass vi et 
 aimis, which must be brought in the names of the husband and 
 v/'\ie jointly : but if the beating or other mal-treatment be very 
 enormous, so that thereby the husband is deprived for any time 
 of the company and assistance of his wife, the law then gives 
 a separate remedy by an action of trespass, in nature of an action 
 upon the case, for this SSV-\is,2.g&, per qiiod consortium amisit ; in 
 which he shall recover a satisfaction in damages.! 
 
 II. Injuries that may be offered to a person considered in the 
 relation of a parent were likewise of two kinds : i. Abduction, 
 or taking his children away ; and, 2. Marrying his son and heir 
 without the father's consent, whereby during the continuance of 
 the military tenures he lost the value of his marriage. But this 
 last injury is now ceased, together with the right upon which it 
 was grounded ; for, the father being no longer entitled to the 
 value of the marriage, the marrying his heir does him no sort of 
 injury for which a civil action will lie. As to the other, of abduc- 
 tion, or taking away the children from the father, that is also a 
 matter of doubt whether it be a civil injury or no ; for, before the 
 abolition of the tenure in chivalry, it was equally a doubt whether 
 an action would lie for taking and carrying away any other child 
 besides the heir : some holding that it would not, upon the sup- 
 position that the only ground or cause of action was losing the 
 value of the heir's marriage ; and others holding that an action 
 would lie for taking away any of the children, for that the parent 
 
 t As to actions for criminal conversation, -^ee njite, p. 150, note 14: also 8g Ind. 118; i34Masi. 
 1*3; 62 N, H.675; for personal injury to wile, sec 83 N, Y. 595; 32 Miiln. 243: 107 Ind. 32. 
 
RESPECTING THE RIGHTS OF PERSONS. 697 
 
 hath an interest in them all, to provide for their education. If 
 therefoie before the abolition of these tenures it was an injury to 
 the father to take away the rest of his children, as well as his heir 
 (as I am inclined to think it was), it still remains an injury, and 
 is remediable by writ of ravishment, or action of trespass vi et 
 armis, de filio, vel filia, rapto vel abducto ; in the same manner as 
 the husband may have it, on account of the abduction of his wife." 
 III. Of a similar nature to the last is the relation oi guardian 
 and ward, and the like actions mutatis mutandis, as are given to 
 fathers, the guardian also has for recovery of damages, when his 
 ward is stolen or ravished away from him. And though guar- 
 dianship in chivalry is now totally abolished, which was the only 
 beneficial kind of guardianship to the guardian, yet the guardian 
 in socage was always and is still entitled to an action of ravish- 
 ment., if his ward or pupil be taken from him : but then he must 
 account to his pupil for the damages which he so recovers. And, 
 as a guardian in socage was also entitled at common law to a 
 writ of right of ward, de custodia terrcB et hceredis, in order to 
 recover the possession and custody of the infant, so I apprehend 
 that he is still entitled to sue out this antiquated writ. But a 
 more speedy and summary method of redressing all complaints 
 relative to wards and guardians hath of late obtained by an ap- 
 plication to the court of chancery ; which is the supreme guardian, 
 and has the superintendent jurisdiction of all the infants in the 
 kingdom. And it is expressly provided .by statute 12 Car. II,, 
 ch. 24, that testamentary guardians may maintain an action of 
 ravishment or trespass, for recovery of any of their wards, and 
 
 " Other injuries of a similar nature, which a person may sustain in his 
 relation as parent, are (a) by personal injury to the child ; (/5) by ett- 
 ikement of the child from home, or harboring him wrongfully, after he has 
 left his parents; (c) by seduction of a daughter. The ground on which the 
 father sues, in all these cases, is loss of service resulting from the defendant's 
 act. In case {a), the action of the father is in addition to one, which may 
 be brought in the child's behalf for the direct personal injury. If the child 
 is so young as to be incapable of rendering any service, the father's right of 
 action will fail (Hall v. Hollander, 4 B. & C. 660); though it is held in one 
 State, at least, that the father may, in such a case, recover for the trouble 
 and expense incurred in the care and cure of the child. (2 Cush. 347 ; and 
 see 109 N. Y. 95.) (b) For cases of action for enticement, see Stowe v. Hey- 
 luood, 7 Allen, 118; Nash v. Douglas, 12 Abb. Pr. [N. S.] 187 ; Caughey v. 
 Smith, 47 N. Y. 244. (c) The subject of seduction has been already con- 
 sidered. (See ante, p. 167, note 8.) 
 
698 OF WRONGS, AND THEIR REMEDIES, ETC. 
 
 also for damages to be applied to the use and benefit of the 
 infants." 
 
 IV. To the relation between master and servant, and the 
 rights accruing therefrom, there are two species of injuries 
 incident. The one is, retaining a man's hired servant before his 
 time is expired ; the other is beating or confining him in such a 
 manner that he is not able to perform his work. As to the first, 
 the retaining another person's servant during the time he has 
 agreed to serve his present master ; this, as it is an ungentle- 
 manlike, so it is also an illegal act. For every master has by his 
 contract purchased for a valuable consideration the service of his 
 domestics for a limited time : the inveigling or hiring his servant, 
 which induces a breach of this contract, is therefore an injury to 
 the master; and for that injury the law has given him a remedy 
 by a special action on the case ;" and he may also have an action 
 against the servant for the non-performance of his agreement. 
 But, if the new master was not apprized of the former contract, 
 no action lies against kim, unless he refuses to restore the ser- 
 vant, upon demand. The other point of injury, is that of beating, 
 confining, or disabling a man's servant, which depends upon the 
 same principle as the last ; viz., the property which the master 
 has by his contract acquired in the labor of the servant. In this 
 case, besides the remedy of an action of battery or imprisonment, 
 which the servant himself as an individual may have against the 
 aggressor, the master also, as a recompense for his immediate 
 loss, may maintain an action of trespass vi et annis ; in which he 
 must allege and prove the special damage he has sustained by 
 the beating of his servant, /^r quod servitium antisit ; and then 
 the jury will make him a proportionable pecuniary satisfaction.'^ 
 A similar practice to which, we find also to have obtained 
 among the Athenians ; where masters were entitled to an action 
 against such as beat or ill-treated their servants. 
 
 We may observe that in these relative injuries, notice is only 
 taken of the wrong done to the superior of the parties related, 
 by the breach and dissolution of either the relation itself, or at 
 
 ^° The guardian, being in loco parentis, may also maintain action for the 
 seduction of a female ward. (See 4 N. Y. 38 and 60 N. H. 20.) 
 
 " See Scidmorev . Smith, 13 Johns. 322 ; Woodwardv. M^as/iiurn, 3 Denio, 
 369; Caughey v. Smith, 47 N. Y. 244; Lu?nley v. Gye, 2 E. & B. 216. 
 
 '* See Duel v. Harding, Strange, 595 ; Hall v. Hollander, 4 B. & C. 660; 
 Ames V. Union R. Co., 117 Mass. 541. 
 
OF INJURIES TO PERSONAL PROPERTY. 699 
 
 least the advantage, accruing therefrom : while the loss of the 
 inferior by such injuries is totally unregarded. One reason for 
 which may be this : that the inferior hath no kind of property in 
 the company, care, or assistance of the superior, as the;,superior 
 is held to have in those of the inferior ; and therefore the inferior 
 can suffer no loss or injury. The wife cannot recover damages 
 foi- beating her husband, for she hath no separate interest in any. 
 thing during her coverture.^* The child hath no property in his 
 father or guardian ; as they have in him, for the sake of giving 
 him education and nurture. And so the servant, whose master is 
 disabled, does not thgreby lose his maintenance or wages. He 
 had no property in his master ; and if he receives his part of the 
 stipulated contract, he suffers no injury, and is therefore entitled 
 to no action, for any battery or imprisonment which such master 
 may happen to endure. 
 
 CHAPTER VII. 
 
 [bL. COMM. — BOOK III. CH. IX.] 
 
 Of Injuries to Personal Property. 
 
 In the preceding chapter we considered the wrongs or 
 injuries that affected the rights of persons, either considered as 
 individuals, or as related to each other ; and are at present to 
 enter upon the discussion of such injuries as affect the rights of 
 property, together with the remedies which the law has given to 
 repair or redress them. 
 
 And here agam we must follow our former division of 
 property into personal and real ; personal, which consists in goods, 
 money, and all other movable chattels, and things thereunto 
 incident ; a property which may attend a man's person wher- 
 ever he goes, and from thence receives its denomination : real 
 property, which consists of such things as are permanent, fixed, 
 and immovable ; as lands, tenements, and hereditaments of all 
 kinds, which are not annexed to the person, nor can be moved 
 from the place in which they subsist. 
 
 " It is held in some States, under modern statutes, that a wife can recover damages against one 
 who entices her husband away, alienates his afiections, etc. (26 Fed. Rep. 13; 116 N. Y. 584.) 
 
700 OF INJURIES TO PERSONAL PROPERTY. 
 
 First then we are to consider the injuries that may be offered 
 to the rights oi personal property ; and, of these, first the rights 
 of personal property in possession, and then those that are in 
 action onjy. 
 
 I. The rights of personal property in possession, are liable to 
 two species of injuries : the amotion or deprivation of 'ihat pos- 
 session ; and the abuse or damage of the chattels, while the 
 possession continues in the legal owner. The former, or depriva- 
 tion of possession, is also divisible into two branches ; the unjust 
 and unlawful taking thexa away ; and the unjust detaining them, 
 though the original taking might be lawful. 
 
 I. And first of an unlawful taking. The right of property in 
 all external things being solely acquired by occupancy, as has 
 been formerly stated, and preserved and transferred by grants, 
 deeds, and wills, which are a continuation, of that occupancy ; it 
 follows, as a necessary consequence, that when I have once 
 gained a rightful possession of any goods or chattels, either by a 
 just occupancy or by a legal transfer, whoever either by fraud or 
 force dispossesses me of them, is guilty of a transgression against 
 the law of society, which is a kind of secondary law of nature. 
 For there must be an end of all social commerce between man 
 and man, unless private possessions be secured from unjust 
 invasions : and if an acquisition of goods by either force or fraud 
 were allowed to be a sufficient title, all property would soon 
 be confined to the most strong, or the most cunning ; and 
 the weak and simple-minded part of mankind (which is by far the 
 most numerous division) could never be secure of their posses- 
 sions. 
 
 The wrongful taking of goods being thus most clearly an 
 injury, the next consideration is, what remedy the law of England 
 has given for it. And this is, in the first place, the restitution of 
 the goods themselves so wrongfully taken, with damages for the 
 loss sustained by such unjust invasion ; which is effected by 
 action of replevin ; an institution, which the Mirror ascribes 
 to Glanvil, chief justice to King Henry the Second. This ob- 
 tains only in one instance of an unlawful taking, that of a wrong- 
 ful distress: and this and the action of detinue (of which I shall 
 presently say more) are almost the only actions, in which the 
 actual specific possession of the identical personal chattel is 
 restored to tie proper owner. For things personal are looked 
 
OF INJURIES TO PERSONAL PROPERTY. 701 
 
 upon by the law as of a nature so transitory and perishable, that 
 it is for the most part impossible either to ascertain their identity, 
 or to restore them in the same condition as when they came 
 to the hands of the wrongful possessor. And, since it is a maxim 
 that " lex neminem cogit ad vana, seu impossibilia," it therefore 
 contents itself in general with restoring, not the thing itsell, 
 but a pecuniary equivalent to the party injured ; by giving him 
 a satisfaction in damages. But in the case of a distress, the goods 
 are from the first taking in the custody of the law, and not 
 merely in that of the distrainor ; and therefore they may not only 
 be identified, but also restored to their first possessor, without 
 any material change in their condition.' And being thus in the 
 custody of the law, the taking them back by force is looked upon 
 as an atrocious injury, and denominated a rescous, for which the 
 distrainor has a remedy in damages. 
 
 An action of replevin, the regular way of contesting the 
 validity of the transaction, is founded, I said, upon a distress 
 taken wrongfully and without sufficient cause : being a re-delivery 
 of the pledge, or thing taken in distress, to the owner ; upon his 
 giving security to try the right of the distress, and to restore it 
 if the right be adjudged against him : after which the distrainor 
 may keep it, till tender made of sufficient amends, but must then 
 redeliver it to the owner. And formerly, when the party dis- 
 trained upon intended to dispute the right of the distress, he 
 had no other process by the old common law than by a writ of 
 replevin, replegiari facias ; which issued out of chancery, com- 
 manding the sheriff to deliver the distress to the owner, and 
 afterwards to do justice in respect of the matter in dispute in 
 
 ' The remedy of replevin is not restricted in the United States to cases 
 of wrongful distress, but extends to all cases where personal property has 
 been unlawfully taken or detained from the rightful owner. The object of 
 this action is to obtain a restoration of the specific property taken, and not, 
 as in the action of trover, to recover damages for its loss. It is a concur- 
 rent remedy with trover, and either may be adopted by the plaintiff, at his 
 option. The action may be maintained by one having a general property in 
 the chattels, as the absolute owner, or by one who has a special property, as 
 a bailee. The practice varies somewhat in different States, but is substan- 
 tially similar, in its general features, to that detailed in the text. Statutory 
 regulations will be found upon this subject, in many of the States. In New 
 York, and some other States, which have adopted a code of civil procedure, 
 the corresponding form of remedy is termed the " claim and delivery of per' 
 sonal property," or "an action to recover a chattel." (See 61 N. H. 340; 
 in U. S. 176; 135 Mass. 45 ; 108 Ind. 512; loi N. Y. 348.) 
 
702 OF INJURIES TO PERSONAL PROPERTY. 
 
 his own county-court. But this being a tedious method of 
 proceeding, the beasts or other goods were long detained from 
 the owner to his great loss and damage. For which reason the 
 statute of Marlbridge directs, that (without suing a writ out of 
 the chancery) the sheriff immediately, upon plaint to him made 
 shall proceed to replevy the goods. And, for the greater ease of 
 the parties, it is farther provided by statute i P. & M., ch. 1 2, 
 that the sheriff shall make at least four deputies in each county, 
 for the sole purpose of making replevins. Upon application 
 therefore, either to the sheriff or one of his said deputies, security 
 is to be given, in pursuance of the statute of Westm. 2, 13 Edw. 
 I., ch. 2. I. That the party replevying will pursue his action 
 against the distrainor, for which purpose he puts in plegios de 
 prosequendo, or pledges to prosecute ; and, 2. That if the right 
 be determined against him, he will return the distress again, for 
 which purposes he is also bound to find plegios de retorno habendo. 
 Besides these pledges, the sufficiency of which is discretionary 
 and at the peril of the sheriff, the statute 1 1 Geo. II., ch. 19^ 
 requires that the officer, granting a replevin on a distress for 
 rent, shall take a bond with two sureties in a sum of double the 
 value of the goods distrained, conditioned to prosecute the suit 
 with effect and without delay, and for return of the goods ; which 
 bond shall be assigned to the avowant or person making cogniz- 
 ance, on request made to the officer ; and, if forfeited, may be 
 sued in the name of the assignee. And certainly, as the end of 
 all distresses is only to compel the party distrained upon to satisfy 
 the debt or duty owing from him, this end is as well answered 
 by such sufficient sureties as by retaining the very distress, 
 which might frequently occasion great inconvenience to the 
 owner ; and that the law never wantonly inflicts. The sheriff, 
 on receiving such security, is immediately, by his officers, to 
 cause the chattels taken in distress to be restored into the pos- 
 session of the party distrained upon ; unless the distrainor claims 
 a property in the goods so taken. For if, by this method of 
 distress, the distrainor happens to come again into possession of 
 his own property in goods which before he had lost, the law 
 allows him to keep them, without any reference to the manner 
 by which he thus has gained possession ; being a kind of per- 
 sonal remitter. If therefore the distrainor claims any such 
 property, the party replevying must sue out a writ de proprietatt 
 
OF INJURIES TO PERSONAL PROPERTY. 701 
 
 pivbonda, in which the sheriff is to try, by an inquest, in whoro 
 the property previous tp the distress subsisted. And if it be 
 fourid to be in the distrainor, the sheriff can proceed no farther; 
 but must return the claim of properly to the court of king's 
 bench or common pleas, to be there farther prosecuted, if thought 
 advisable, and there finally determined. 
 
 But in common cases, the goods are delivered back to the 
 party replevying, who is then bound to bring his action of replev- 
 in ; which may be prosecuted in the county-court, be the distress 
 of what value it may. But it is usual to carry it up in the first 
 instance to the courts of Westminster-hall. Upon this action 
 brought, and declaration delivered, the distrainor, who is now the 
 defendant, makes avowry ; that is, he avows taking the distress 
 in his own right, or the right of his wife ; and sets forth the 
 reason of it, as for rent arr ere, damage done, or other cause : or 
 else, if he justifies in another's right as his bailiff or servant, he 
 is said to make cognizance ; that is, he acknowledges the taking, 
 but insists that such taking was legal, as he acted by the com- 
 mand of one who had a right to distrain ; and on the truth and 
 legal merits of this avowry or cognizance the cause is determined. 
 If it be determined for the plaintiff, viz. : that the distress was 
 wrongfully taken ; he has already got his goods back into his 
 own possession, and shall keep them, and moreover recover 
 damages. But if the defendant prevails, by the default or non- 
 suit of the plaintiff, then he shall have a writ de retomo kabendo, 
 whereby the goods or chattels (which were distrained and then 
 replevied) are returned again into his custody ; to be sold, or 
 otherwise disposed of, as if no replevin hath been made. 
 
 In like manner, other remedies for other unlawful takings of 
 a man's goods consist only in recovering a satisfaction in dam- 
 ages. And if a man takes the goods of another out of his actual 
 or virtual possession, without having a lawful title so to do, it is 
 an injury ; which, though it doth not amount to felony unless it 
 be done animo furandi, is nevertheless a transgression, for which 
 an action of trespass vi et armis will lie ; wherein the plaintiff 
 shall not recover the thing itself, but only damages for the loss 
 of it. Or, if committed without force, the party may, at his 
 choice, have another remedy in damages by action of trover and 
 conversion, of which I shall presently say more. 
 
 2. Deprivation of possession may also be by an unjust de- 
 
704 OF INJURIES TO PERSONAL PROPERTY. 
 
 tainer of another's goods, though the original taking was lawful 
 As if I distrain another's cattle damage-feasant, and before they 
 are impounded he tenders me sufificient amends ; now, though 
 the original taking was lawful, my subsequent detainment of 
 them after tender of amends is wrongful, and he shall have an 
 action of replevin against me to recover them : in which he shal! 
 recover damages only for the detention and not for the caption 
 because the original taking was lawful. Or, if I lend a man a 
 horse, and he afterwards refuses to restore it, this injury con- 
 sists in the detaining, and not in the original taking, and the 
 r< gular method for me to recover possession is by action of 
 detinue. In this action of detinue, it is necessary to ascertain 
 the thing detained, in such a manner as that it may be specifically 
 known and recovered. Therefore it cannot be brought for 
 money, corn, or the like ; for that cannot be known from other 
 niuney or corn ; unless it be in a bag or a sack, for then it may 
 be distinguishably marked. In order, therefore, to ground an 
 ac'ion of detinue, which is only for the detaining., these points 
 ire necessary : i. That the defendant came lawfully into pos- 
 session of the goods, as either by delivery to him, or finding them ; 
 2. That the plaintiff have a property ; 3. That the goods them- 
 selves be of some value ; and, 4. That they be ascertained in 
 point of identity. Upon this the jury, if they find for the plain- 
 tiff, assess the respective values of the several parcels detained, 
 and also damages for the detention. And the judgment is con- 
 ditional ; that the plaintiff recover the said goods, or (if they 
 cannot be had) their respective values, and also the damages 
 for detaining them. But there is one disadvantage which 
 attends this action ; vis., that the defendant is herein permitted 
 to wage his law, that is, to exculpate himself by oath, and 
 thereby defeat the plaintiff of his remedy : which privilege is 
 grounded on the confidence originally reposed in the bailee by 
 the bailor, in the borrower by the lender, and the like; 
 from whence arose a strong presumptive evidence, that in the 
 plaintiff's own opinion the defendant was worthy of credit. But 
 for this reason the action itself is of late much disused, and has 
 given place to the action of trover." 
 
 2 Wager of law was abolished by statute 3 & 4 Will., IV., ch. 42, and detinue 
 was afterwards employed more frequently. This form of remedy has fallen 
 into disuse, or been superseded by other actions, in many of the United 
 States. 
 
OF INJURIES TO PERSONAL PROPERTY. 705 
 
 This action of trover and conversion was in its original an 
 action of trespass upon the case, for recovery ol damages against 
 such person as had /(?«m^ another's goods, and refused to deliver 
 them on demand, but converted them to his own use ; from which 
 finding and converting it is called an action of trover and conver- 
 sion. The freedom of this action from wager of law, and the 
 less degree of certainty requisite in describing the goods, gave 
 it so considerable an advantage over the action of detinue, that 
 by a fiction of law actions of trover were at length permitted to 
 be brought against any man who had in his possession by any 
 means whatsoever the gersonal goods of another, and sold them 
 or used them without the consent of the owner, or refused to 
 deliver them when demanded. The injury lies in the conver- 
 sion : for any man may take the goods of another into possession, 
 if he finds them ; but no finder is allowed to acquire a property 
 therein, unless the owner be for ever unknown : and therefore 
 he must not convert them to his own use, which the law pre- 
 sumes him to do, if he refuses them to the owner : for which 
 reason such refusal also is prima facie, sufficient evidence of a 
 conversion. The fact of the finding, or trover, is therefore now 
 totally immaterial : for the plaintiff needs only to suggest (as 
 words of form) that he lost such goods, and that the defendant 
 found them : and if he proves that the goods are his property, 
 and that the defendant had them in his possession, it is sufficient. 
 But a conversion must be fully proved : and then in this action 
 the plaintiff shall recover damages, equal to the value of the 
 thing converted, but not the thing itself : which nothing will 
 recover but an action of detinue or replevin. 
 
 As to the damage that may be offered to things personal, 
 while in the possession of the owner, as hunting a man's deer, 
 shooting his dogs, poisoning his cattle, or in anywise taking 
 fiom the value of any of his chattels, or making them in a worse 
 condition than before, these are injuries too obvious to need 
 explication. I have only therefore to mention the remedies 
 given by the law to redress them, which are in two shapes ; by 
 action of trespass vi et armis, where the act is in itself immedi- 
 ately injurious to another's property, and therefore necessarily 
 accompanied with some degree of force ; and by special action 
 on the case, where the act is in itself indifferent, and the injury 
 only consequential, and therefore arising without any breach of 
 
 46 
 
7o6 OF INJURIES TO PERSONAL PROPERTY. 
 
 the peace. In both of which suits the plaintiff shall recover 
 damages, in proportion to the injury which he proves that his 
 property has sustained. And it is not material whether the 
 damage be done by the defendant himself, or his servants by his 
 direction ; for the action will lie against the master as well as 
 the servant. And, if a man keeps a dog or other brute animal, 
 used to do mischief, as by worrying sheep, or the like, the 
 owner must answer for the consequences, if he knows of such 
 evil habit.' 
 
 II. Hitherto of injuries affecting the right of things personal, 
 in possession. We are next to consider those which regard things 
 in action only ; or such rights as are founded on, and arise from; 
 contracts ; the nature and several divisions of which were ex- 
 plained in the preceding volume. The violation, or non-per- 
 formance, of these contracts might be extended into as great a 
 variety of wrongs, as the rights which we then considered ; but 
 I shall now consider them in a more comprehensive view, by 
 here making only a twofold division of contracts ; viz., contracts 
 express, and contracts implied ; and pointing out the injuries 
 that arise from the violation of each, with their respective rem- 
 edies. 
 
 Express contracts include three distinct species ; debts, cov- 
 enants, and promises. 
 
 I. The legal acceptation of debt is, a sum of money due by 
 certain and express agreement : as, by a bond for a determinate 
 sum ; a bill or note ; a special bargain : or a rent reserved on a 
 lease ; where the quantity is fixed and specific, and does not 
 depend upon any subsequent valuation to settle it. The non- 
 payment of these is an injury, for which the proper remedy is by 
 action of debt to compel the performance of the contract and re- 
 cover the specifical sum due. This is the shortest and surest 
 
 3 See Marble v. Ross, 124 Mass. 44; Godeau v. Blood, 53 Vt. 251 ; Per- 
 kins V. Mossman, 44 N. J. L. 579. The knowledge of the owner of the 
 animal's vicious propensity is termed technically, " scienter," and must be 
 specially alleged and proved. But this is only true of animals which are ordi- 
 narily of an inoffensive disposition, as dogs, cattle, etc. If animals be of a 
 savage nature, the owner is absolutely responsible for injuries committed by 
 them, and proof of scienter is not required ; as if, for example, wild beasts in a 
 menagerie should escape and do injury. And even in the case of domestic 
 animals, if the action is brought on the ground that they have committed a 
 trespass ^x^^o•a. the plaintiff's ]3remises, no \)too{ of scienter is necessary. (See 
 Muller v. McKesson, jt, N. Y. 195 ; Spring Co. v. Edgar, 99 U. S. 645.) 
 
OF INJURIES TO PERSONAL PROPERTY. 707 
 
 temcdy ; particularly where the debt arises upon a specialty, 
 that is, upon a deed or instrument under seal. So also, if I ver- 
 bally agree to pay a man a certain price for a certain parcel of 
 goods, and fail in the performance, an action of debt lies against 
 me ; for this is also a determinate contract ; but if I agree for no 
 settled price, I am not liable to an action of debt, but a special 
 action on the case, according to the nature of my contract. And 
 indeed actions of debt are now seldom brought but upon special 
 contract under seal ; wherein the sum due is clearly and pre- 
 cisely expressed ; for, in case of such an action upon a simple 
 contract, the plaintiff , labors under two difficulties. First, the 
 defendant has here the same advantage as in an action of det- 
 inue, that of waging his law, or purging himself of the debt by 
 oath, if he thinks proper. Secondly, in an action of debt the 
 plaintiff must prove the whole debt he claims, or recover nothing 
 at all. For the debt is one single cause of action, fixed and de- 
 termined ; and which, therefore, if the proof varies from the 
 claim, cannot be looked upon as the same contract whereof the 
 performance is sued for.* If, therefore, I bring an action of 
 debt for 30/., I am not at liberty to prove a debt of 20/., and re- 
 cover a verdict thereon ; any more than if I bring an action of 
 detinue for a horse, I can thereby recover an ox. For I fail in 
 the proof of that contract, which my action or complaint has 
 alleged to be specific, express, and determinate. But in an ac- 
 tion on the case, on what is called an indebitatus assumpsit, 
 which is not brought to compel a specific performance of the 
 contract, but to recover damages for its non-performance, the 
 implied assumpsit, and consequently the damages for the breach 
 of it, are in their nature indeterminate ; and will, therefore, adapt 
 and proportion themselves to the truth of the case which shall 
 be proved, without being confined to the precise demand stated 
 in the declaration. For, if any debt be proved, however, less 
 than the sum demanded, the law will raise a promise pro tanto, 
 and the damages will of course be proportioned to the actual 
 debt. So that I may declare that the defendant, being indebted 
 to me in 30/. undertook or promised to pay it, but failed ; and lay 
 my damages arising from such failure at what sum I please : and 
 the jury will, according to the nature of my proof, allow me 
 
 * But it was subsequently settled that the plaintiff, in an action of debt, might 
 prove and recover less than the sum demanded in the writ. 
 
7o8 OF INJURIES TO PERSONAL PROPERTY. 
 
 either the whole in damages, or any inferior sum. And, even in 
 actions of debt, where the contract is proved or admitted, if the 
 defendant can show that he has discharged any part of it, the 
 plaintiff shall recover the residue. 
 
 The form of the writ of debt is sometimes in the debet and 
 detinet, and sometimes in the detinet only : that is, the writ 
 states, either that the defendant owes and unjustly detains the 
 debt or thing in question, or only that he unjustly detains it. It 
 is brought in the debet as well as detinet, when sued by one of 
 the original contracting parties who personally gave the credit, 
 against the other who personally incurred the debt, or against his 
 heirs, if they are bound to the payment ; as by the obligee 
 against the obligor, the landlord against the tenant, etc. But, if 
 it be brought by or against an executor for a debt due to or 
 from the testator, this not being his own debt, shall be sued for 
 in the detinet only. So also if the action be for goods, or corn, 
 or a horse, the writ shall be in the detinet only ; for nothing but 
 a sum of money, for which I (or my ancestors in my name) have 
 personally contracted, is properly considered as my debt. And, 
 indeed, a- writ of debt in the detinet only, for goods and chattels, 
 is neither more nor less than a mere writ of detinue ; and is fol- 
 lowed by the very same judgment. 
 
 2. A covenant, also, contained in a deed, to do a direct act 
 or to omit one, is another species of express contracts, the viola- 
 tion or breach of which is a civil injury. As if a man covenants 
 to be at York by such a day, or not to exercise a trade in a par 
 ticular place, and is not at York at the time appointed, or car- 
 ries on his trade in the place forbidden, these are direct breaches 
 of his covenant ; and may be perhaps greatly to the disadvan- 
 tage and loss of the covenantee. The remedy for this is by a 
 writ "of covenant : which directs the sheriff to command the de- 
 fendant generally to keep his covenant with the plaintiff (with- 
 out specifying the nature of the covenant), or show good cause 
 to the contrary : and if he continues Refractory, or the covenant 
 is already so broken that it cannot now be specifically performed, 
 then the subsequent proceedings set forth with precision the 
 covenant, the breach, and the loss which has happened thereby; 
 whereupon the jury will give damages, in proportion to the in- 
 jury sustained by the plaintiff, and occasioned by such breach 
 of the defenlant's contract. 
 
OF INJURIES TO PERSONAL PROPERTY. 709 
 
 No person could at common law take advantage of any 
 covenai t or condition, except such as were parties or privies 
 thereto ; and, of course, no grantee or assignee of any reversion 
 or rent. To remedy which, and more effectually to secure to the 
 king's grantees the spoils of the monasteries then newly dissolved, 
 the statute 32 Hen. VIII., ch. 34, gives the assignee of a rever- 
 sion (after notice of such assignment) the same remedies against 
 the particular tenant, by entry or action, for waste or other for- 
 feitures, non-payment of rent, and non-performance of conditions, 
 covenants, and agreements, as the assignor himself might have 
 had ; and makes him equally liable, on the other hand, for acts 
 agreed to be performed by the assignor, except in the case of 
 warranty. 
 
 3. A promise is in the nature of a verbal covenant, and wants 
 nothing but the solemnity of writing and sealing to make it abso- 
 lutely the same. If therefore it be to do any explicit act, it is an 
 express contract, as much as any covenant ; and the breach of 
 it is an equal injury. The remedy indeed is not exactly the 
 same: since, instead of an action of covenant, there only lies an 
 action upon the case, for what is called the assumpsit or under- 
 taking of the defendant ; the failure of performing which is the 
 wrong or injury done to the plaintiff, the damages whereof a 
 jury are to estimate and settle. And if a builder promises, un- 
 dertakes, or assumes to Caius, that he will build and cover his 
 house within a time limited, and fails to do it ; Caius has an 
 action on the case against the builder, for this breach of his ex- 
 press promise, undertaking, or assumpsit , and shall recover a 
 pecuniary satisfaction for the injury sustained by such delay. So 
 also in the case before mentioned, of a debt by simple contract, 
 if the debtor promises to pay it and does not, this breach of 
 promise entitles the creditor to his action on the case, instead of 
 being driven to an action of debt. Thus likewise a promissory 
 note, or note of hand not under seal, to pay money at a day cer- 
 , tain, is an express assumpsit ; and the payee at common law, or 
 by custom and act of parliament the indorsee, may recover the 
 value of the note in damages, if it remains unpaid. Some agree- 
 ments indeed, though never so expressly made, are deemed of so 
 important a nature, that they ought not to rest in verbal promise 
 only, which cannot be proved but by the memory (which some- 
 times will induce the perjury) of witnesses. To prevent which 
 
7IO OF INJURIES TO PERSONAL PROPERTY. 
 
 the statute of frauds and perjuries, 29 Car. II., ch. 3, enacts, thai 
 in the five following cases no verbal promise shall be sufficient to 
 ground an action upon, but at the least some note or ;«^»«(?ra«fl'«»» 
 of it shall be made in writing, and signed by the party to be 
 charged therewith : i. Where an executor or administrator 
 promises to answer damages out of his own estate. 2. Where a 
 man undertakes to answer for the debt, default, or miscarriage 
 of another. 3. Where any agreement is made, upon considera- 
 tion of marriage. 4. Where any contract or sale is made of 
 lands, tenements, or hereditaments, or any interest therein. 5. 
 And lastly, where there is any agreement that is not to be per- 
 formed within a year from the making thereof. In all these cases 
 a mere verbal assumpsit is void. 
 
 From these express contracts the transition is easy to those 
 that are only implied by law. Which are such as reason and 
 justice dictate, and which therefore the law presumes that 
 every man has contracted to perform ; and upon this pre- 
 sumption makes him answerable to such persons as suffer by his 
 non-performance. 
 
 Of this nature are, first, such as are necessarily implied by 
 the fundamental constitution of government, to which every man 
 is a contracting party. And thus it is that every person is bound 
 and hath virtually agreed to pay such particular sums of money 
 as are charged on him by the sentence, or assessed by the inter- 
 pretation of the law. For it is a part of the original contract, 
 entered into by all mankind who partake the benefits of society, 
 to submit in all points to the municipal constitutions and local 
 ordinances of that state, of which each individual is a member. 
 Whatever therefore the laws order any one to pay, that becomes 
 instantly a debt, which he hath beforehand contracted to dis- 
 charge. And this implied agreement it is, that gives the plain- 
 tiff a right to institute a second action, founded merely on the 
 general contract, in order to recover such damages, or sum of 
 money, as are assessed by the jury and adjudged by the court to 
 be due from the defendant to the plaintiff in any former actioa 
 So that if he hath once obtained a judgment against another for 
 a certain sum, and neglects to take out execution thereupon, he 
 may afterwards bring an action of debt upon this judgment, and 
 shall not be put upon the proof of the original cause of action j 
 but upon shi.wing the judgment once obtained, still in full force, 
 
OF INJURIES TO PERSONAL PROPERTY, yii 
 
 and yet unsatisfied, the law immediately implies, that by the 
 original contract of society the defendant hath contracted a debt, 
 and is bound to pay it. This method seems to have been in- 
 vented, when real actions were more in use than at present, and 
 damages were permitted to be recovered thereon ; in order to 
 have the benefit of a writ of capias to take the defendant's body 
 in execution for those damages, which process was allowable in 
 an action of debt (in consequence of the statute 25 Edw. III., ch. 
 17), but not in an action real. Wherefore, since the disuse of 
 those real actions, actions of debt upon judgment in personal 
 suits have been pretty much discountenanced by the courts, as 
 being generally vexatious and oppressive, by harassing the de- 
 fendant with the costs of two actions instead of one. 
 
 On the same principle it is (of an implied original contract 
 to submit to the rules of the community whereof we are mem- 
 bers), that a forfeiture imposed by the by-laws and private or- 
 dinances of a corporation upon any that belong to the body, or 
 an amercement set in a court-leet or court-baron upon any of 
 the suitors to the court (for otherwise it will not be binding), 
 immediately create a debt in the eye of the law : and such for- 
 feiture or amercement, if unpaid, work an injury to the party or 
 parties entitled to receive it : for which the remedy is by action 
 of debt. 
 
 The same reason may with equal justice be applied to all 
 penal statutes, that is, such acts of parliament whereby a forfeit- 
 ure is inflicted for transgressing the provisions therein enacted. 
 The party offending is here bound by the fundamental contract 
 of society to obey the directions of the legislature, and pay the 
 forfeiture incurred to such persons as the law requires. The 
 usual application of this forfeiture is either to the party aggrieved, 
 or else to any of the king's subjects in general. Of the 
 former sort is the forfeiture inflicted by the statute of Winchester 
 (explained and enforced by several subsequent statutes) upoxi the 
 hundred wherein a man is robbed, which is meant to oblige the 
 hundredors to make hue and cry after the felon ; for if they take 
 him, they stand excused. But otherwise the party robbed is 
 entitled to prosecute them by a special action on the case, for 
 damages equivalent to his loss. And of the same nature is the 
 action given by statute 9 Geo. I., ch. 22, commonly called the 
 black act, against the inhabitants of any hundred, in order to 
 
712 OF INJURIES TO PERSONAL PROPERTY. 
 
 make satisfaction in damages to all persons who have suffered hy 
 the offences enumerated and made felony by that act. But 
 more usually, these forfeitures created by statute are given at 
 large to any common informer ; or, in other words, to any such 
 person or persons as will sue for the same : and hence such ac- 
 tions are called/(7/«/(2r actions, because they are given to the people 
 in general. Sometimes one part is given to the king, to the poor, 
 or to some public use, and the other part to the informer or 
 prosecutor : and then the suit is called a qui tarn action, because it 
 is brought by a person " qui tarn pro domino rege, &rc., quani pro 
 se ipso in hac parte sequitur." If the king therefore himself com- 
 mences this suit, he shall have the whole forfeiture. But if anv 
 one hath begun a qui tain ox popular, action, no other person can 
 pursue it : and the verdict passed upon the defendant in the first 
 suit is a bar to all others, and conclusive even to the king him- 
 self. This has frequently occasioned offenders to procure their 
 own friends to begin a suit, in order to forestall and prevent othc 
 actions ; which practice is in some measure prevented by a 
 statute made in the reign of a very sharp-sighted prince in pe lal 
 laws, 4 Hen. VII., ch. 20, which enacts that no recovery, other- 
 v/ise than by verdict, obtained by collusion in an action popular, 
 shall be a bar to any other action prosecuted bona fide. A pro- 
 vision that seems borrowed from the rule of the Roman law, that 
 if a person was acquitted of any accusation, merely by the 
 prevarication of the accuser, a new prosecution might be com- 
 menced against him. 
 
 A second class of implied contracts are such as do not arise 
 from the express determination of any court, or the positive 
 direction of any statute, but from natural reason, and the just 
 construction of law. Which class extends to all presumptive 
 undertakings or assumpsits ; which though never perhaps actually 
 made, yet constantly arise from the general implication and in- 
 tendment of the courts of judicature, that every man hath en- 
 gaged to perform what his duty or justice requires. Thus : — 
 
 I. If I employ a person to transact my business for me, or 
 perform any work, the law implies that I undertook or assumed 
 to pay him so much as his labor deserved. And if I neglect to 
 make him amends, he has a remedy for this injury by bringing 
 his action on the case upon this implied assumpsit ; wherein he 
 is at liberty to suggest that I promised to pay him so much as he 
 
OF INJURIES TO PERSONAL PROPERTY. 713 
 
 reasonably deserved, and then to aver that his trouble was really 
 worth such a particular sum, which the defendant has omitted to 
 pay. But this valuation of his trouble is submitted to the deter- 
 mination of a jury ; who will assess such a sum in damages &s 
 they think he really merited. This is called an assumpsit on a 
 quantum meruit. 
 
 2. There is also an implied assumpsit on a quantum valebant, 
 which is very similar to the former, being only where one takes 
 up goods or wares of a tradesman, without expressly agreeing for 
 the price. There the law concludes, that both parties did inten- 
 tionally agree, that the real value of the goods should be paid ; 
 and an action on the case may be brought accordingly, if the 
 vendee refuses to pay that value. 
 
 3. A third species of implied assumpsit is when one has had 
 and received money belonging to another, without any valuable 
 consideration given on the receiver's part : for the law construes 
 this to be money had and received for the use of the owner only ; 
 and implies that the person so receiving promised and undertook 
 to account for it to the true proprietor. And, if he unjustly de- 
 tains it, an action on the case lies against him for the breach of 
 such implied promise and undertaking ; and he will be made to 
 repay the owner in damages, equivalent to what he has detained 
 in violation of such his promise. This is a very extensive and 
 beneficial remedy, applicable to almost every case where the de- 
 fendant has received money which ex cequo et bono he ought to 
 refund. It lies for money paid by mistake or on a consideration 
 which happens to fail, or through imposition, extortion, or op- 
 pression, or where any undue advantage is taken of the plaintiff's 
 situation. 
 
 4. Where a person has laid out and expended his own money 
 for the use of another, at his request, the law implies a promise 
 of repayment, and an action will lie on this asstimpsit. 
 
 5. Likewise, fifthly, upon a stated account between two mer- 
 chants, or other persons, the law implies that he , against whom 
 the balance appears has engaged to pay it to the other : though 
 there be not any actual promise. And from this implication it 
 Is frequent for actions on the case to be brought, declaring that 
 the plain tiff and defendant had settled their accounts together, 
 insimul computassent (which gives name to this species of assump 
 "0. and that the defendant engaged to pay the plaintiff the bal 
 
714 OF INJURIES TO PERSONAL PROPERTY. 
 
 ance, but has since neglected to do it. But if no account has 
 been made up, then the legal remedy is by bringing a wiit of 
 account, de compute ; commanding the defendant to render a just 
 account to the plaintiff, or show the court good cause to the con- 
 trary. In this action, if the plaintiff succeeds, there are two 
 judgments : the first is, that the defendant do account {quod com- 
 putet) before auditors appointed by the court; and, when such 
 account is finished, then the second judgment is, that he do pay 
 the plaintiff so much as he is found in arrear. This action, by 
 the old common law, lay only against the parties themselves, and 
 not their executors ; because matters of account rested solely on 
 their own knowledge. But this defect, after many fruitless at- 
 tempts in parliament, was at last remedied by statute 4 Ann., ch. 
 16, which gives an action of account against the executors and 
 administrators. But however it is found by experience, that the 
 most ready and effectual way to settle these matters of account 
 is by bill in a court of equity, where a discovery may be had on 
 the defendant's oath, without relying merely on the evidence 
 which the plaintiff may be able to produce. Wherefore actions 
 of account, to compel a man to bring in and settle his accounts, 
 are now very seldom used ; though, when an account is once 
 stated, nothing is more common than an action upon the implied 
 assumpsit to pay the balance. 
 
 6. The last class of contracts, implied by reason and con- 
 struction of law, arises upon this supposition, that every one who 
 undertakes any office, employment, trust, or duty, contracts with 
 those who employ or entrust him, to perform it with integrity, 
 diligence, and skill. And if, by his want of either of these qual- 
 ities, any injury accrues to individuals, they have therefore their 
 remedy in damages by a special action on the case. A few in- 
 stances will fully illustrate this matter. If an officer of the pub- 
 lic is guilty of neglect of duty, or a palpable breach of it, of non- 
 feasance or of misfeasance ; as, if the sheriff does not execute a 
 writ sent to him, or if he wilfully makes a false return thereof ; 
 in both these cases the party aggrieved shall have an action on 
 the case, for damages to be assessed by a jury. If a sheriff'or 
 gaoler suffers a prisoner, who is taken upon mesne process (that 
 is, during the pendency of a suit), to escape, he is liable to an 
 action on the case. But if, after judgment, a gaoler or a sherifi 
 permits a debtor to escape, who is charged in execution for a 
 
OF INJURIES TO PERSONAL PROPERTY. 715 
 
 certain sum ; the debt immediately becomes his own, and he is 
 compellable by action of debt, being for a sum liquidated and as- 
 certained, to satisfy the creditor his whole demand : which doc- 
 trine is grounded on the equity of the statute of Westm. 2, 13 
 Edw. I., ch. ii,«and i Ric. II., ch. 12. An advocate or attorney 
 that betray the cause of their client, or, being retained, neglect 
 to appear at the trial, by which the cause miscarries, are liable to 
 an action on the case, for a reparation to their injured client. 
 There is also in law always an implied contract with a common 
 inn-keeper, to secure his guest's goods in his inn; with a common 
 can ier, or bargemaster, to be answerable for the goods he car- 
 ries ; with a common farrier, that he shoes a horse well, without 
 laming him ; with a common tailor, or other workman, that he 
 performs his business in a workmanlike manner ; in which, if 
 they fail, an action on the case lies to recover damages for such 
 breach of their general undertaking. But if I employ a person 
 to transact any of these concerns, whose common profession and 
 business it is not, the law implies no such general undertaking, 
 but, in order to charge him with damages, a special agreement is 
 required. Also, if an inn-keeper, or other victualler, hangs out 
 a sign and opens his house for travellers, it is an implied engage- 
 ment to entertain all persons who travel that way ; and upon 
 this universal assumpsit an action on the case will lie against him 
 for damages, if he without good reason refuses to admit a trav- 
 eller. If any one cheats me with false cards or dice, or by false 
 weights and measures, or by selling me one commodity for an- 
 other, an action on the case also lies against him for damages, 
 upon the contract which the law always implies, that every trans- 
 action is fair and honest. » 
 
 In contracts likewise for sales, it is constantly understood 
 the seller undertakes that the commodity he sells is his own ; 
 and if it proves otherwise, an action on the case lies against him, 
 to exact damages for this deceit. In contracts for provisions, it 
 is always implied that they are wholesome ; and if they be not, 
 the same remedy may be had. Also if he, that selleth anything, 
 doth upon the sale warrant it to be good, the law annexes a tacit 
 contract to his warranty, that if it be not so, he shall make com- 
 pensation to the buyer : else it is an injury to good faith, for 
 which an action on the case will lie to recover damages.' The 
 
 ' See ante, page 559, note 12. 
 
7i6 OF INJURIES TO PERSONAL PROPERTY. 
 
 warranty must be upon the sale : for if it be made after, and not 
 at the time of the sale, it is a void warranty : for it is then made 
 without any consideration ; neither does the buyer then take the 
 goods upon the credit of the vendor. Also the warranty can only 
 reach to things in being at the time of the warranty made, and 
 not to things infuturo : as, that a horse is sound at the buying 
 of him, not that he zvi// be sound two years hence. But if the 
 vendor knew the goods to be unsound, and hath used any art 
 to disguise them, or if they are in any shape different from what 
 he represents them to be to the buyer, this artiiice shall be equiv- 
 alent to an express warranty, and the vendor is answerable for 
 their goodness.^ A general warranty will not extend to guard 
 ' against defects that are plainly and obviously the object of one's 
 senses, as if a horse be warranted perfect, and wants either a tail 
 or an ear, unless the buyer in this case be blind. But if cloth is 
 warranted to be of such a length, when it is not, there an action 
 on the case lies for damages ; for that cannot be discerned by 
 sight, but only by a collateral proof, the measuring it. Also if 
 a horse is warranted sound, and he wants the sight of an eye, 
 though this seems to be the object of one's senses, yet as the 
 discernment of such defects is frequently matter of skill, it hath 
 been held that an action on the case lieth to recover damages for 
 this imposition.' 
 
 6 A distinction must be carefully drawn between an action upon contract 
 for breach of warranty, and an action in tort for fraud connected with a war- 
 ranty. This is more important, because early English cases held that, if a 
 warranty were in fact false, the vendor was chargeable with fraud and deceit, 
 though he had no knowledge of the defect at the time of the sale, and no in- 
 tention to deceive. (See Williamson v. Allison, 2 East, 450.) But in modern 
 times it is held that an action for fraud and deceit cannot be maintained 
 without proof of scienter, or of intent to deceive. A warranty, therefore, 
 may be false and not fraudulent, so that an action for breach of contract onlj 
 can be maintained. Or it may be both false and fraudulent, so that the pur- 
 chaser may have his choice of remedies, — to sue either in contract upon the 
 warranty, or in tort for the fraud. (See Jl N. Y. 108 ; 28 N. H. 118 & 128.) 
 In some States, however, the form of action in suing for breach of a false war- 
 ranty may be either tort or contract ; but then scienter, though alleged, need 
 not be proved. (122 U. S. 575 ; 14 R. I. 578.) 
 
 ' The various forms of action considered in this chapter, and not already 
 referred to in previous notes, viz., trover, trespass, debt, covenant, assump- 
 sit, and case, were introduced into the practice of the several American States 
 from the English practice, and had similar scope and extent of application. 
 In a number of the States they have been continued until the pregent day 
 in substantially the same form, though diverse modifications have been made 
 
OF INJURIES TO REAL PROPERTY, ETC. 717 
 
 Thus much for the non-performance of contracts express or 
 implied ; which includes every possible injury to what is by far 
 the most considerable species of personal property ; viz. that 
 which consists in action merely, and not in possession. Which 
 finishes our inquiries into such wrongs as may be offered to 
 personal property, with their several remedies by suit or action. 
 
 CHAPTER VIII. 
 
 [BL. COMM. BOOK III. CH. X.J 
 
 Of Injuries to Real Property ; and first of Dispossession, or Ouster of 
 
 the Freehold. 
 
 I COME now to consider such injuries as affect that species of 
 property which the laws of England have denominated real ; as 
 being of a more substantial and permanent nature, than those 
 transitory rights of which personal chattels are the object. 
 
 Real injuries then, or injuries affecting real rights, are prin- 
 cipally four; I. Ouster; 2. Trespass; 3. Nuisance; 4. Waste. 
 
 Ouster, or dispossession, is a wrong or injury that carries 
 with it the amotion of possession : for thereby the wrongdoer 
 gets into the actual occupation of the land or hereditament, and 
 obliges him that hath a right to seek his legal remedy, in order 
 
 in different States, by statute regulations. But in New York, and a number 
 i»f the other States, the diverse forms of actions previously existing, have 
 oeen abolished ; and there is declared to be but one form of action for the en- 
 forcement or protection of private rights and the redress of private wrongs, 
 which is denominated a " civil action." But although yorwza/ differences have 
 been abolished, j«^j^a«/?'(z/ distinctions between actions for diverse kinds of 
 injuries still exist. Thus, the action brought to recover damages for conver- 
 sion of chattels, is no longer termed trover, and it is not now necessary to 
 allege a finding of the goods by the defendant ; but the nature of the proof 
 to be established, and the rules in regard to the parties to such a suit, and 
 :he measure of damages to be awarded, are virtually the same as in the former 
 action of trover. So it is evident that an action to recover specific personal 
 property differs from actions for damages, as replevin differed from similar 
 actions. In like manner, the distinction between legal and equitable suits 
 and remedies still exists, though the same form of action is brought in all 
 cases. {Austin v. Rawdon, 44 N. Y. 6i ; Goulet v. Asseler, 22 N. Y. 225.) 
 
71 8 OF INJURIES TO REAL PROPERTY, ETC. 
 
 to gain possession and damages for the injury sustained. And 
 such ouster, or dispossession, may either be of th.Q freehgld or of 
 chattels real. Ouster of the freehold is effected by one of the 
 following methods: i. Abatement; 2. Intrusion; 3. Disseizin. 
 All of which in their order, and afterwards their respective 
 remedies, will be considered in the present chapter. 
 
 1. And first, an abatement is where a person dies seized of an in- 
 heritance, and before the heir or devisee enters, a stranger who has 
 no right makes entry, and gets possession of the freehold : this entry 
 of him is called an abatement, and he himself is called an abator. 
 It is to be observed that this expression, of abating, which is 
 derived from the French, and signifies to quash, beat down, or 
 destroy, is used by our law in three senses. The first, which 
 seems to be the primitive sense, is that of abating or beating 
 down a nuisance, of which we spoke in the beginning of this 
 book; and in a like sense it is used in statute Westm. i., 3 Edw. 
 I., ch. 17, where mention is made of abating a castle or fortress; 
 in which case it clearly signifies to pull it down, and level it with 
 the ground. The second signification of abatement is that of 
 abating a writ or action, of which we shall say more hereafter : 
 here it is taken figuratively, and signifies the overthrow or defeat- 
 ing of such writ, by some fatal exception to it. The last species 
 of abatement is that we have now before us ; which is also a 
 figurative expression to denote that the rightful possession or 
 freehold of the heir or devisee is overthrown by the rude inter- 
 vention of a stranger. 
 
 2. The second species of injury by ouster, or amotion of 
 possession from the freehold, is by intrusion : which is the entry 
 of a stranger, after a particular estate of freehold is determined, 
 before him in remainder or reversion. And it happens where a 
 tenant for term of life dieth seized of certain lands and tene- 
 ments, and a stranger entereth thereon, after such death of the 
 tenant, and before any entry of him in remainder or reversion. 
 This entry and interposition of the stranger differ from an abate- 
 ment in this ; that an abatement is always to the prejudice of 
 the heir, or immediate devisee ; an intrusion is always to the 
 prejudice of him in remainder or reversion. 
 
 3. The third species of injury by ouster, or piivation of the 
 freehold, is by disseizin. Disseizin is a wrongful putting out of 
 him that is seized of the freehold, The two former species of 
 
OF myURIES TO REAL PROPERTY, ETC. yi^ 
 
 injury were by a wrongful entry where the possession wa« 
 vacant ; but this is an attack upon him who is in actual posses- 
 sion, and turning him out of it. Those were an ouster from a 
 freehold in law ; this is an ouster from a freehold in deed. Dis- 
 seizin may be effected either in corporeal inheritances, or incor- 
 poreal. Disseizin of things corporeal, as of houses, lands, &c., 
 must be by entry and actual dispossession of the freehold ; as if 
 a man enters either by force or fraud into the house of another, 
 and turns, or at least keeps, him or his servants out of possession. 
 Disseizin of incorporeal hereditaments can not be an actual dis- 
 possession : for the subject itself is neither capable of actual 
 bodily possession, or dispossession ; but it depends on their 
 respective natures, and various kinds ; being in general nothing 
 more than a disturbance of the owner in the means of coming at, 
 or enjoying them. 
 
 In corporeal hereditaments, a man may frequently sup- 
 pose himself to be disseized, when he is not so in fact, for 
 the sake of entitling himself to the more easy and corri- 
 raodious remedy of an assize of novel disseizin (which will be 
 explained in the sequel of this chapter), instead of being driven 
 to the more tedious process of a writ of entry. The true injury 
 of compulsive disseizin seems to be that of dispossessing the 
 tenant, and substituting one's self to be the tenant of the lord in 
 his stead ; in oVder to which in the times of pure feudal tenure 
 the consent or connivance of the lord, who upon every descent or 
 alienation personally gave, and who therefore alone could change, 
 the seizin or investiture, seems to have been considered as neces- 
 sary. But when in process of time the feudal form of alienations 
 wore off, and the lord was no longer the instrument of giving 
 actual seizin, it is probable that the lord's acceptance of rent or 
 service, from him who had dispossessed another, might constitute 
 a complete disseizin. Afterwards, no regard was had to the 
 lord's concurrence, but t|^e dispossessor himself was considered 
 as the sole disseizor : and this wrong was then allowed to be 
 remedied by entry only, without any form of law, as against the 
 disseisor himself ; but required a legal process against his heir 
 or alienee. And when the remedy by assize was introduced under 
 Henry II. to redress such disseizins as had been committed 
 within a few years next preceding, the facility of that remedy 
 induced others, who were wrongfully kept out of the freehold, to 
 
720 OF INJURIES TO REAL PROPERTY, ETC 
 
 feign or allow themselves to be- disseized, merely for the sake rj| 
 the remedy. 
 
 The several species and degrees of injury by ouster being 
 tl'.us ascertained and defined, the next consideration is the rem- 
 edy ; which is, universally, the restitution or delivery of posses- 
 sion to the right owner : and, in some cases, damages also for the 
 unjust amoti*n. The methods, whereby these remedies, or either 
 of them, may be obtained, are various. 
 
 I. The first is that extrajudicial and summary one, wliich we 
 slightly touched in the first chapter of the present book, of entry 
 by the legal owner, when another person, who hath no right, hath 
 previously taken possession of lands or tenements. In this case 
 the party entitled may make a formal, but peaceable, entry 
 thereon, declaring that thereby he takes possession : which no- 
 torious act of ownership is equivalent to a feudal investiture by 
 the lord : or he may enter on any part of it in the same county, 
 declaring it to be in the name of the whole : but if 't lies in 
 different counties he must make different entries ; for the no- 
 toriety of such entry or claim to the pares or freeholders of 
 Westmoreland, is not any notoriety to the pares or freeholders of 
 Sussex. Also if there be two disseizors, the party disseized must 
 make his entry on both ; or if one disseizor has conveyed the 
 lands with livery to two distinct feoffees, entry must be made on 
 both : for as their seizin is distinct, so also must be the act which 
 devests that seizin. If the claimant be deterred from entering 
 by menaces or bodily fear, he may make claim, as near to the 
 estate as he can, with the like forms and solemnities : which 
 claim is in force for only a year and a day. And this claim, if it 
 be repeated once in the space of every year and a day (which is 
 called continual claim), has the same effect with, and in all re- 
 spects a;nounts to, a legal entry. Such an entry gives a man 
 seizin, or puts into immediate possession him that hath right of 
 entry on the estate, and thereby makes him complete owner, and 
 capable of conveying it from himself by either descent or pur- 
 chase.' 
 
 ' [But by statute 3 & 4 Will. IV., ch. 27, no person shall be deemed tc 
 have been in possession of any land within the meaning of that act, merely 
 by reason of having made an entry thereon ; and no continual or other claim 
 ujjon or near any land shall preserve any right of making an entry. The 
 distinction between the law, as laid down by Blackstone and the present 
 
OF INJURIES TO REAL PROPERTY, ETC. 721 
 
 For, in every complete title to lands, there are two things 
 necessary ; the possession or seizin, and the right or property 
 therein : or, as it is expressed in Y\&\.2i, juris et seisincs conjunctio. 
 Now if the possession be severed from the property, if A has the 
 jus proprietatis, and B by some unlawful means has gained pos- 
 session of the lands, this is an injury to A ; for which the law 
 fjives a remedy, by putting him in possession. Thus, as B, who 
 was himself the wrongdoer, and hath obtained the possession by 
 either fraud or force, hath only a bare or naked possession, with 
 out any shadow of right ; A, therefore, who hath both the right 
 of property and the right of possession, may put an end to his 
 title at once, by the summary method of entry. 
 
 This remedy by entry must be pursued, according to statute 
 5 Ric. II., St. I, ch. 8, in a peaceable and easy manner; and not 
 with force or strong hand. For, if one turns or keeps another 
 out of possession forcibly, this is an injury of both a civil and a 
 criminal nature.' The civil is remedied by immediate restitution ; 
 which puts the ancient possessor in statu quo : the criminal 
 injury, or public wrong, by breach of the king's peace, is pun- 
 ished by fine to the king. For by the statute 8 Hen. VI., ch. 9, 
 upon complaint made to any justice of the peace, of a forcibk 
 entry, with strong hand, on lands or tenements ; or a forcible 
 detainer after a peaceable entry ; he shall try the truth of the 
 complaint by jury, and, upon force found, shall restore the pos- 
 session to the party so put out : and in such case, or if any 
 
 laws as to an entry is, that by the former a bare entry on land was attended 
 with a certain effect in keeping a right alive ; whereas, by the latter, it has no 
 effect whatever, unless there be a change of possession. When this takes 
 place, the remedy by entry is still in operation ; when not, an entry is of no 
 avail, and this remedy no longer exists.] 
 
 The effect of entry has also been changed by statute, in many of the 
 American States. Thus, in New York, it is provided that, in cases of dis- 
 seizin or adverse possession, " no entry upon real estate shall be deemed 
 sufficient, or valid as a claim, unless an action be commenced thereupon 
 within one year after the making of such entry, and within twenty years from 
 the time when the right to make such entry descended or accrued." (N. Y. 
 Code Civ. Pro. § 367.) 
 
 ' " An entry shall not be made into real property, but in the case where 
 entry is given by law ; and in such case, only in a peaceable manner ; not with 
 strong hand, nor with multitude of people." (N. Y. Code Civ. Pro. § 2233,.) 
 This is a reiSnactment of the statute of Richard, and similar statutes arc found 
 in most of the American States. (See posi, p. 915, note 2.) 
 
 47 
 
722 OF INJURIES TO REAL PROPERTY, ETC. 
 
 alienation be made to defraud the possessor of his right (which 
 is likewise declared to be absolutely void) the offender shall 
 forfeit, for the force found, treble damages to the party grieved, 
 and make fine and ransom to the king. But this does not extend 
 to such as endeavor to keep possession manu forti, after three 
 years' peaceable enjoyment of either themselves, their ancestors, 
 ^ or those under whom they claim ; by a subsequent clause of the 
 same statute, enforced by statute 31 Eliz., ch. 11. 
 
 II. Thus far of remedies, when tenant or occupier of the land 
 hath gained only a mere possession, and no apparent shadow of 
 right. Next foilow another class, which are in use where the 
 ti^'.e of the tenant or occupier is advanced one step nearer to 
 pv^rfection ; so that he hath in him not only a bare possession, 
 which may be destroyed by a bare entry, but also an apparent 
 right of possession, which cannot be removed but by orderly 
 course of law ; in the process of which it must be shown, that 
 though he hath at present possession and therefore hath the 
 presumptive right, yet there is a right of possession, superior to 
 his, residing in him who brings the action. 
 
 These remedies are either by a -writ of entry, or an assize ; 
 which are actions merely possessory ; serving only to regain that 
 possession, whereof the demandant (that is, he who sues for the 
 land) or his ancestors have been unjustly deprived by the tenant 
 or possessor of the freehold, or those under whom he claims. 
 They decide nothing with respect to the right of property ; only 
 restoring the demandant to that state or situation, in which he 
 was (or by law ought to have been) before the dispossession 
 committed. But this without any prejudice to the right of 
 ownership : for, if the dispossessor has any legal claim, he may 
 afterwards exert it, notwithstanding a recovery against him in 
 those possessory actions. Only the law will not suffer him to 
 be his own judge, and either take or maintain possession of the 
 lands, until he hath recovered them by legal means : rather 
 presuming the right to have accompanied the ancient seizin, than 
 to re.'side in one who had no such evidence in his favor. 
 
 I. The first of these possessory remedies is by writ of entry : 
 which is that which disproves the title of the tenant or pos- 
 sessor, by showing the unlawful means by which he entered ot 
 continues possession. The writ is directed to the sheriff, re- 
 quiring him to "command the tenant of the land that he render 
 
OF INJURIES TO REAL PROPERTY, ETC. 723 
 
 (in Latin, praecipe quod reddat), to the demandant the land in 
 question, which he claims to be his right and inheritance ; and 
 into which, as he saith, the said tenant had not entry but by (or 
 after; a disseizin, intrusion, or the like, made to the said demand- 
 ant, within the time limited by law for such actions ; or that 
 upon refusal he do appear in court on such a day, to show 
 wherefore he hath not done it." This is the original process, 
 the pracipe upon which all the rest of the suit is grounded : 
 wherein it appears, that the tenant is required, either to deliver 
 seizin of the lands, or tO show cause why he will not. This 
 cause may be either a denial of the fact, of having entered by or 
 under such means as are suggested, or a justification of his entry 
 by reason of title in himself or in those under whom he makes 
 claim : whereupon the possession of the land is awarded to him 
 who produces the clearest right to possess it. 
 
 This remedial instrument, or writ of entry, is applicable to 
 all the cases of ouster before mentioned. , 
 
 2. The writ of assize is said to have been invented by Glan- 
 vil, chief justice to Henry the Second ; and, if so, it seems to 
 owe its introduction to the parliament held at Northampton, in 
 the twenty-second year of that prince's reign when justices in 
 eyre were appointed to go round the kingdom in order to take 
 these assizes : and the assizes themselves (particularly those of 
 mort d'ancestor a.nd novel disseizin), were clearly pointed out and 
 described. As a writ of entry is a real action, which disproves 
 the title of the tenant by showing the unlawful commencement 
 of his possession ; so an assize is a real action, which proves the 
 title of the demandant merely by showing his, or his ancestor's 
 possession ; and these two remedies are in all other respects so 
 totally alike, that a judgment or recovery in one is a bar against 
 the other ; so that when a man's possession is once established 
 by either of these possessory actions, it can never be disturbed 
 by the same antagonist in any other of them. The word assize 
 IS derived by Sir Edward Coke from the Latin assideo, to sit to- 
 gether ; and it signifies, originally, the jury who try the cause, 
 and sit together for that purpose. By a figure, it is now made 
 to signify the court or jurisdiction, which summons this jury 
 together by a commission of assize, or ad assisas capiendas ; and 
 hence the judicial assemblies held by the king's commission in 
 every county, as well to take these writs of assize, as to try 
 
724 OF INJURIES TO REAL PROPERTY, ETC. 
 
 causes at nisi prius, are termed in common speech the assizes. 
 By another somewhat similar figure, the name of assize is also 
 applied to this action, for recovering possession of lands ; for the 
 reason, saith Littleton, why such writs at the beginning were 
 called assizes, was, for that in these writs the sheriff is ordered 
 to summon a jury, or assize ; which is not expressed in any 
 other original writ. 
 
 This remedy, by writ of assize, is only applicable to two 
 species of injury by ouster, viz. abatement, and a recent or novel 
 disseizin. If the abatement happened upon the death of the 
 demandant's father or mother, brother or sister, uncle or aunt, 
 nephew or niece, the remedy is by an assize of mort d'ancestor, or 
 the death of one's ancestor. This writ directs the sheriff to 
 summon a jury or assize, who shall view the land in question, 
 and recognize whether such ancestor was seized thereof on the 
 day of his death, and whether the demandant be the next heir ; 
 soon after which the judges come down by the king's commis- 
 sion to take the recognition of assize : when, if these points are 
 found in the affirmative, the law immediately transfers the pos- 
 session from the tenant to the demandant. 
 
 An assize of novel (or recent) disseizin is ah action of the 
 same nature with the assize of mort d'ancestor before-mentioned, 
 in that herein the demandant's possession must be shown. But 
 it differs considerably in other points ; particularly in that it re- 
 cites a complaint by the demandant of the disseizin committed, 
 in terms of direct averment, whereupon the sheriff is commanded 
 to reseize the land and all the chattels thereon, and keep the 
 same in his custody till the arrival of the justices of assize (which 
 in fact hath been usually omitted) ; and in the mean time to sum- 
 mon a jury to view the premises, and make recognition of the 
 assize before the justices. At which time the tenant may plead 
 either the general issues, nul tort, nul disseizin, or any special 
 plea. And if, upon the general issue, the recognitors find an 
 actual seizin in the demandant, and his subsequent disseizin by 
 the present tenant ; he shall have judgment to recover his seizin, 
 and damages for the injury sustained : being the only case in 
 which damages were recoverable in any possessory actions at the 
 common law ; the tenant being in all other cases allowed to retain 
 the intermediate profits of the land, to enable him to perform th: 
 feudal sendee. But costs and damages were annexed to many 
 
OF INJURIES TO REAL PROPERTY, ETC. 725 
 
 other possessory actions by the statutes of Marlberge, 52 Hen, 
 III., ch. 16, and Gloucester, 6 Edw. I., ch. i. 
 
 Ill all these possessory actions there is a tin.e of limitation 
 settled, beyond which no man shall avail himself of the posses- 
 sion of himself or his ancestors, or take advantage of the wrong- 
 ful possession of his adversary. For, if he be negligent for a 
 long and unreasonable time, the law refuses afterwards to lend 
 him any assistance, to recover the possession merely, both to 
 punish his neglect (jtam. leges vigilantibus, non dormientibus, 
 subveniunt) and also because it is presumed that the sup- 
 posed wrongdoer has in such a length of time procured a legal 
 title, otherwise he would sooner have been sued. 
 
 III. By these several possessory remedies the right of pos- 
 session may be restored to him that is unjustly deprived thereof. 
 But the right of possession (though it carries with it a strong pre- 
 sumption), is not always conclusive evidence of the right oi prop- 
 erty, which may still subsist in another man. For, as one man 
 may have the possession, and another the right of possession, 
 which is recovered by these possessory actions : so one man may 
 have the right of possession, and so not be liable to eviction 
 by any possessory action, and another may have the right of 
 property, which cannot be otherwise asserted than by the great 
 and final remedy of a writ of right, or such correspondent writs 
 as are in the nature of a writ of right.' 
 
 In case the right of possession be barred by a recovery upon 
 the merits in a possessory action, or lastly by the statute of 
 limitations, a claimant in fee-simple may have a mere writ of 
 right; which is in its nature the highest writ in the law, and 
 Ueth only of an estate in fee-simple, and not for him who hath 
 a less estate. This writ lies concurrently with all other real 
 actions, in which an estate of fee-simple may be recovered : and 
 it also lies after them, being as it were an appeal to the mere 
 right, when judgment hath been had as to the possession in an 
 .inferior possessory action. But though a writ of right may be 
 brought, where the demandant is entitled to the possession, yet 
 it rarely is advisable to be brought in such cases ; as a more 
 expeditious and easy remedy is had, without meddling with the 
 property, by proving the demandant's own, or his ancestor's 
 possession, and their illegal ouster, in one of the possessory 
 ' See ante, page 374, note i. 
 
726 OF IN JURIES TO REAL PROPERTY, ETC. 
 
 actions. But in case the right of possession be lost by length 
 of time, or by judgment against the true owner in one of these 
 inferior suits, there is no other choice : this is then the only 
 remedy that can be had ; and it is of so forcible a nature, that 
 it overcomes all obstacles, and clears all objections that may 
 have arisen to cloud and obscure the title. And, after issue 
 once joined in a writ of right, the judgment is absolutely final ; 
 so that a recovery had in this action may be pleaded in bar of 
 any other claim or demand. 
 
 The pure, proper, or mere writ of right lies only, we have 
 said, to recover lands in fee-simple, unjustly withheld from the 
 true proprietor. But there are also some other writs which are 
 said to be in the nature of a writ of right, because their process 
 and proceedings do mostly (though not entii ely) agree with the 
 writ of right : but in some of them the fee-simple is not demanded; 
 and in others not land, but some incorporeal hereditament. 
 
 In the progress of this action, the deman-iant must allege 
 some seizin of the lands and tenements in l-itnself, or else in 
 some person under whom he claims, and then derive the right 
 from the person so seized to himself ; to whi-'.h the tenant 
 may answer by denying the demandant's right, and •'verring that 
 he has more right to hold the lands than the demandant has to 
 demand them : and this right of the tenant being shown, it then 
 puts the demandant upon the proof of his title : in which, if he 
 fails, or if the tenant hath shown a better, the demandant and his 
 heirs are perpetually barred of their claim : but if he can make it 
 appear that his right is superior to the tenant's, he s>naU recover 
 the land against the tenant and his heirs for ever. But even this 
 writ of right, however superior to any other, cannot be sued out 
 at any distance of time. By statute 32 Henry VIII., fh. 2, 
 seizin in a writ of right shall be within sixty years. 
 
 I have now gone through the several species of injury by 
 ouster and dispossession of the freehold, with the remedies ap- 
 plicable to each. In considering which I have been unavoidably 
 led to touch upon much obsolete and abstruse learning, as it lies 
 intermixed with, and alone can explain the reason of, those parts 
 of the law which are now more generally in use. For, without 
 contemplating the whole fabric together, it is impossible to form 
 any clear idea of the meaning and connection of those disjointed 
 parts which still form a considerable branch of the modern Uv ; 
 
OF INJURIES TO REAL PROPERTY, ETC. 727 
 
 such as the doctrine of entries, the levying of fines, and the suf- 
 fering of common recoveries. Neither indeed is any considerable 
 part of that, which I have selected in this chapter from among 
 the venerable monuments of our ancestors, so absolutely anti- 
 quated as to be out oi force, though the whole is certainly out of 
 use : there being but a very few instances for more than a cen- 
 tury past of prosecuting any real action for land by writ of entry, 
 assize, writ of right, or otherwise. The forms are indeed pre- 
 served in the practice of common recoveries ; but they are forms 
 and nothing else ; for which the very clerks that pass them are 
 seldom capable to as^gn the reason. But the title of lands is 
 now usually tried in actions of ejectment or trespass ; of which in 
 the following chapters.* 
 
 * The real actions mentioned in this chapter were abolished by statute 
 3 & 4 Will IV., ch. 27 ; and the action of ejectment became the only direct 
 mode of procedure for trying the title to real property, although trespass is 
 sometimes made indirectly available for that purpose. Only brief mention 
 of these various writs has, therefore, been retained in this edition, so far as 
 their historical importance is deemed to warrant. In the United States, also, 
 real and mixed actions, except ejectment, have been abolished or fallen into 
 desuetude, and ejectment (which in some .States is termed, " writ of entry," 
 or " real action "), has become the ordinary remedy to try the title to lands. 
 But the procedure in an action of ejectment has been much simplified and 
 Improved, as compared with the former practice. (See next chapter.) 
 
728 OF DISPOSSESSION, OR OUSTER, 
 
 CHAPTER IX. 
 
 [bL. COMM. — ^BOOK III. CH. XI.] 
 
 Of Dispossession, or Ouster, of Chattels Real. 
 
 Having in the preceding chapter considered with some at- 
 tention the several species of injury by dispossession or ouster 
 of the freehold, together with the regular and well-connected 
 scheme of remedies by actions real, which are given to the sub- 
 ject by the common law, either to recover the possession only, 
 or else to recover at once the possession, and also to establish 
 the right of property ; the method which I there marked out leads 
 rae next to consider injuries by ouster of chattels real ; that is, by 
 amoving the possession of the tenant from an estate by statute- 
 merchant, statute-staple, recognizance in the nature of it, or 
 elegit ; or from an estate for years. 
 
 I. Ouster, or amotion of possession, from estates held by 
 statute, recognizance, or elegit, is only liable to happen by a 
 species of disseizin, or turning out of the legal proprietor, before 
 his estate is determined by raising the sum for which it is given 
 him in pledge. And for such ouster, though the estate be merely 
 a chattel interest, the owner shall have the same remedy as for 
 >n injury to a freehold; viz. by assize of novel disseizin. 
 
 II. As for ouster, or amotion of possession, from an estate fot 
 years; this happens only by a like kind of disseizin, ejection, or 
 turning out, of the tenant from the occupation of the land during 
 the continuance of his term. For this injury the law has provided 
 him with two remedies, according to the circumstances and situ- 
 ation of the wrongdoer : the writ of ejectione finnm; which lies 
 against any one, the lessor, reversioner, remainder-man, or any 
 stranger, who is himself the wrongdoer and has committed the 
 injury complained of : and the writ of quare ejecit infra termi- 
 num. ; .■\*hich lies not against the wrongdoer or ejector himself, 
 but his^eoffee or other person claiming under him. These are 
 mixed actions, somewhat between real and personal ; for therein 
 are two things recovered, as well restitution of the term of years, 
 as damages for the ouster or wrong. 
 
OF CHATTELS REAL. 729 
 
 I. A writ then of ejectione firmce, or action of trespass in 
 ejectment, lieth where lands or tenements are let for a term of 
 years ; and afterwards the lessor, reversioner, remainder-man, or 
 any stranger, doth eject or oust the lessee of his term. In this 
 case he shall have his writ of ejection to call the defendant to 
 answer for entering on the lands so demised to the plaintiff for 
 a term that is not yet expired, and ejecting him. And by this 
 writ the plaintiff shall recover back his term, or the remainder of 
 it, with damages. 
 
 Since the disuse of real actions, this mixed proceeding is be- 
 come the common method of trying the title to lands or tenements. 
 It may not therefore be improper to delineate, with some degree 
 of minuteness, its history, the manner of its process, and the 
 principles whereon it is grounded. 
 
 The remedy by ejectment is in its original an action brought 
 by one who hath a lease for years, to repair the injury done him 
 by dispossession. In order therefore to convert it into a method 
 of trying titles to the freehold, it is first necessary that the 
 claimant do take possession of the lands, to empower him to 
 constitute a lessee for years, that may be capable of receiving 
 this injury of dispossession. For it would be an offence, called 
 in our law maintenance (of which in the next book), to convey a 
 title to another, when the grantor is not in possession of the 
 land ; and indeed it was doubted at first, whether this occasional 
 possession, taken merely for the purpose of conveying the title, 
 excused the lessor from the legal guilt of maintenance. When 
 therefore a person, who hath right of entry into lands, determines 
 to acquire that possession, which is wrongfully withheld by the 
 present tenant, he makes (as by law he may) a formal entry on 
 the premises ; and being so in the possession of the soil, he 
 there, upon the land, seals and delivers a lease for years to some 
 third person or lessee : and, having thus given hira entry, leaves 
 him in possession of the premises. This lessee is to stay upon 
 the land, till the prior tenant, or he who had the previous posses- 
 sion, enters thereon afresh and ousts him ; or till some other 
 person (either by accident or by agreement before-hand) comes 
 upon the land, and turns him out or ejects him. For this injury 
 the lessee is entitled to his action of ejectment against the tenant 
 or this casual ejector, whichever it was that ousted him, to recover 
 back his term and damages. But where this action is brought 
 
730 OF DISPOSSESSION, OR OUSTER, 
 
 agai-ist such a casual ejector as is before mentioned, a.id not 
 against the very tenant in possession, the court will not suffer 
 the tenant to lose his possession without any opportunity to 
 defend it. Wherefore it is a standing rule, that no plaintiff shall 
 proceed in ejectment to recover lands against a casual ejector, 
 without notice given to the tenant in possession (if any there be), 
 and making him a defendant if he pleases. And, in order to 
 maintain the action, the plaintiff must, in case of any defence, 
 make out four points before the court ; viz. title, lease, entry, and 
 ouster. First, he must show a good title in his lessor, which 
 brings the matter of right entirely before the court ; then, that 
 the lessor, being seized or possessed by virtue of such title, did 
 make him the lease for the present term ; thirdly, that he, the 
 lessee or plaintiff, did enter or take possession in consequence of 
 such lease ; and then, lastly, that the defendant ousted or ejected 
 him. Whereupon he shall have judgment to recover his term 
 and damages ; and shall, in consequence, have a writ of possession, 
 which the sheriff is to execute by delivering him the undisturbed 
 and peaceable possession of his term. 
 
 This is the regular method of bringing an action of ejectment 
 in which the title of the lessor comes collaterally and inci- 
 dentally before the court, in order to show the injury done to the 
 lessee by this ouster. This method must be still continued in 
 due form and strictness, save only as to the notice to the tenant, 
 whenever the possession is vacant, or there is no actual occupant 
 of the premises ; and also in some other cases. But, as much trou- 
 ble and formality were found to attend the actual making of the 
 lease, entry, and ouster, a new and more easy method of trying 
 titles by writ of ejectment, where there is any actual tenant or 
 occupier of the premises in dispute, was invented somewhat 
 more than a century ago, by the lord chief justice Rolle, who 
 then sat in the court of upper bench ; so called during the exile 
 of King Charles the Second. This new method entirely depends 
 upon a string of legal fictions ; no actual lease is made, no 
 actual entry by the plaintiff, no actual ouster by the defendant ; 
 but all are merely ideal, for the sole purpose of trying the title. 
 To this end, in the proceedings a lease for a term of years 
 is statea to have been made, by him who claims title, to the plain- 
 tiff who brings the action, as by John Rogers to Richard Smith, 
 which plaintiff ought to be some real person, and not merely an 
 
OF CHATTELS REAL. /31 
 
 ideal fictitious one who hath no existence, as is frequently 
 though unwarrantably practised ; it is also stated t hat Smith the 
 lessee entered; and that the defendant William Stiles, who is 
 called the casual ejector, ousted him ; for which ouster he brings 
 this action. As soon as this action is brought, and the complaint 
 fully stated in the declaration, Stiles, the casual ejector, or 
 defendant, sends a written notice to the tenant in possession of 
 the lands, as George Saunders, informing him of the action 
 brought by Richard Smith, and transmitting him a copy of the 
 declaration ; withal assuring him that he, Stiles the defendant, 
 has no title at all to the premises, and shall make no defence ; 
 and therefore advising the tenant to appear in court and defend 
 his own title : otherwise he, the casual ejector, will suffer judg- 
 ment to be had against him : and thereby the actual tenant 
 Saunders will inevitably be turned out of possession. On receipt 
 of this friendly caution, if the tenant in possession does not within 
 a limited time apply to the court to be admitted a defendant in the 
 stead of Stiles, he is supposed to have no right at all ; and upon 
 judgment being had against Stiles the casual ejector, Saunders 
 the real tenant will be turned out of possession by the sheriff. 
 
 But, if the tenant in possession applies to be made a defend- 
 ant, it is allowed him upon this condition ; that he enter into a 
 rule of court to confess, at the trial of the cause, three of the four 
 requisites for the maintenance of the plaintiff's action ; viz. the 
 lease of Rogers the lessor, the entry of Smith the plaintiff, and 
 his ouster hy Saunders himself, now made the defendant instead 
 of Stiles : which requisites being wholly fictitious, should the 
 defendant put the plaintiff to prove them, he must of course be 
 nonsuited for want of evidence ; but by such stipulated confes- 
 sion of lease, entry and ouster, the trial will now stand upon the 
 merits of the title only. This done, the declaration is altered by 
 inserting the name of George Saunders instead of William Stiles, 
 and the cause goes down to trial under the name of Smith 
 (the plaintiff) on the demise of Rogers (the lessor), against Saun- 
 ders, the new defendant. And therein the lessor of the plaintiff 
 IS bound to make out a clear title, otherwise his fictitious lessee 
 cannot obtain judgment to have possession of the land for the 
 term supposed to be granted. But, if the lessor makes out his 
 title in a satisfactory manner, then judgment and a writ of pos- 
 session shall go for Richard Smith the nominal plaintiff, who by 
 
732 OF DISPOSSESSION, OR OUSTER, 
 
 this trial has proved the right of John Rogers, his supposed les 
 sor. Yet, to prevent fraudulent recoveries of the possession, by 
 collusion with the tenant of the land, all tenants are obliged by 
 statute 1 1 Geo. II., ch. 19, on pain of forfeiting three years' rent, 
 to give notice to their landlords when served with any declaration 
 in ejectment : and any landlord may by leave of the court be 
 made a co-defendant to the action, in case the tenant himself ap- 
 pears to it ; or, if he makes default, though judgment must be then 
 signed against the casual ejector, yet execution shall be stayed, 
 in case the landlord applies to be made a defendant, and enters 
 into the common rule ; a right, which indeed the landlord 
 had, long before the provision of this statute ; in like manner as 
 (previous to the statute of Westm. 2, ch. 3) if in a real action 
 the tenant of the freehold made default, the remainder-man or 
 reversioner had a right to come in and defend the possession ; 
 lest, if judgment were had against the tenant, the estate of those 
 behind should be turned to a naked right. But, if the new 
 defendants, whether landlord or tenant, or both, after entering 
 into the common rule, fail to appear at the trial, and to confess 
 lease, entry, and ouster, the plaintiff. Smith, must indeed be there 
 nonsuited, for want of proving those requisites ; but judgment 
 will in the end be entered against the casual ejector Stiles; for 
 the condition on which Saunders, or his landlord, was admitted a 
 defendant is broken, and therefore the plaintiff is put again 
 in the same situation as if he never had appeared at all ; the con- 
 sequence of which (we have seen) would have been, that judg- 
 ment would have been entered for the plaintiff, and the sheriff, 
 by virtue of a writ for that purpose, would have turned out Saun- 
 ders, and delivered possession to Smith. The same process 
 therefore as would have been had, provided no conditional rule 
 had been ever made, must now be pursued as soon as the condi- 
 tion is broken. 
 
 The damages recovered in these actions, though formerly 
 their only intent, are now usually (since the title has been con- 
 sidered as the principal question) very small and inadequate; 
 amounting commonly to one shilling, or some other trivial sum. 
 In order therefore to complete the remedy, when the possession 
 has been long detained from him that had the right to it, an ac- 
 tion of trespass also lies, after a recovery in ejectment, to recover 
 the mesne profits which the tenant in possession has wrongfuUj 
 
OF CHATTELS REAL. 
 
 733 
 
 received. Which action may be brought in the name of either 
 the nominal plaintiff in the ejectment, or his lessor, against the 
 tenant in possession ; whether he be made party to the eject- 
 ment, or suffers judgment to go by default. In this case the 
 judgment in ejectment is conclusive evidence against the defend- 
 ant, for all profits which have accrued since the date of the de- 
 n>isc stated in the former declaration of the plaintiff ; but if the 
 plaintiff sues for any antecedent profits, the defendant may make 
 a new defence. 
 
 Such is the modern way of obliquely bringing in question the 
 title to lands and tenements, in order to try it in this collateral 
 manner ; a method which is now universally adopted in almost 
 every case. It is founded on the same principle as the ancient 
 writs of assize, being calculated to try the n\&x& possessory title to 
 an estate ; and hath succeeded to those real actions, as being 
 infinitely more convenient for attaining the end of justice; be- 
 cause the form of the proceeding being entirely fictitious, it is 
 wholly in the power of the court to direct the application of that 
 fiction, so as to prevent fraud and chicane, and eviscerate the 
 very truth of the title. The writ of ejectment and its nomina 
 parties (as was resolved by all the judges), are "judicially to be 
 considered as the fictitious form of an action, really brought by 
 the lessor of the plaintiff against the tenant in possession ; in- 
 vented, under the control and power of the court, for the advance- 
 ment of justice in many respects ; and to force the parties to go 
 to trial on the merits, without being entangled in the nicety of 
 pleadings on either side." ^ 
 
 2. The writ of quare ejecit infra terminum lieth, by the an- 
 cient law, where the wrongdoer or ejector is not himself in posses- 
 sion of the lands, but another who claims under him. As where 
 a man leaseth lands to another for years, and, after, the lessor or 
 reversioner entereth, and maketh a feoffment in fee, or for life, 
 of the same lands to a stranger ; now the lessee cannot bring a 
 writ of ^Vrf/o«^_/?;»«(^ or ejectment against the feoffee; because 
 
 ' The action of ejectment has been retained, in the modern English and 
 American practice ; but it has been much simplified by doing away with its 
 fictitious allegations and elements, and has thereby been rendered a more 
 sati.sfactory and convenient form of remedy. It is the remedy generally 
 made available for the trial of title to land. The method of procedure must 
 *>« ascertained by referring to the statutes of the respective States. 
 
734 OF TRESPASS. 
 
 he did not eject him, but the reversioner ; neither can he have any 
 such action to recover his term against the reversioner who did oust 
 him ; because he is not now in possession. And upon that ac- 
 count this writ was devised, upon the equity of the statute 
 Westm. 2, ch. 24, as in a case where no adequate remedy was 
 already provided. And the action is brought against the feoffee 
 for deforcing, or keeping out, the original lessee, during the con- 
 tinuance of his term ; and herein, as in the ejectment, the plain- 
 tiff shall recover so much of the term as remains ; and also 
 shall have actual damages for that portion of it, whereof he has 
 been unjustly deprived. But, since the introduction of fictitious 
 ousters, whereby the title may be tried against any tenant in pos- 
 session (by what means soever he acquired it), and the subse- 
 quent recovery of damages by action of trespass for mesne 
 profits, this action is fallen into disuse.^ 
 
 CHAPTER X. 
 
 [bL. COMM. BOOK III. CH. XII.] 
 
 0/ IVespass. 
 
 In the two preceding chapters we have considered such inju- 
 ries to real property as consisted in an ouster, or amotion of the 
 possession. Those which remain to be discussed are such as may 
 be offered to a man's real property, without any amotion from it. 
 
 The second species, therefore, of real injuries, or wrongs that 
 affect a man's lands, tenements, or hereditaments, is that of tres- 
 pass. Trespass, in its largest and most extensive sense, signifies 
 any transgression or offence against the law of nature, of society, 
 or of the country in which we live ; whether it relates to a man's 
 person, or his property. Therefore, beating another is a trespass ; 
 for which (as we have formerly seen), an action of trespass vi el 
 armis in assault and battery will lie ; taking or detaining a man's 
 goods are respectively trespasses ; for which an action of trespass 
 M et armts, or on the case in trover and conversion, is given by 
 
 * This action was abolished by statute 3 & 4 Will. IV., ch. 27. 
 
OF TRESPASS. ;3S 
 
 the law ; so also non-performance of promises or undertakings 
 is a trespass, upon which an action of trespass on the case in as- 
 sumpsit is grounded ; and, in general, any misfeasance, or act of 
 one man whereby another is injuriously treated or damnified, is 
 a transgression or trespass in its largest sense ; for which we 
 have already seen that whenever the act itself is directly and im- 
 mediately injurious to the person or property of another, and 
 therefore necessarily accompanied with some force, an action of 
 trespass vi et armis will lie ; but, if the injury is only consequen- 
 tial, a special action of trespass on the case may be brought. 
 
 But in the limited and confined sense in which we are at 
 present to consider it, it signifies no more than an entry on an- 
 other man's ground without a lawful authority, and doing some 
 damage, however incon siderable, to h is real property. For the right 
 of >»«^«»« and ^«z<»«, or property in lands, being once established, 
 it follows as a necessary consequence, that this right must be 
 exclusive ; that is, that the owner may retain to himself the sole 
 use and occupation of his soil : every entry therefore thereon 
 without the owner's leave, and especially if contrary to his ex- 
 press order, is a trespass or transgression. The Roman laws 
 seem to have made a direct prohibition necessary, in order to 
 constitute this injury ; " qui alienum fundum ingreditur, potest a 
 domino, si is pr(2viderit,prohiberi ne ingrediatur." But the law of 
 England, justly considering that much inconvenience may happen 
 to the owner, before he has an opportunity to forbid the entry, has 
 carried the point much farther, and has treated every entry upon 
 another's lands (unless by the owner's leave, or in some very 
 particular cases), as an injury or wrong, for satisfaction of which 
 an action of trespass will lie ; but determines the quantum of 
 that satisfaction, by considering how far the offence was wilful 
 or inadvertent, and by estimating the value of the actual damage 
 sustained. 
 
 Every unwarrantable entry on another's soil the law entitles 
 a trespass by breaking his close : the words of the writ of trespass 
 commanding the defendant to show cause quare clausum querentis 
 /regit. For every man's land is in the eye of the law en- 
 closed and set apart from his neighbor's : and that either by a visible 
 and material fence, as one field is divided from another by a hedge ; 
 or by an ideal invisible boundary, existing only in the contem- 
 plation of law. as when one man's land adjoins to another's in 
 
736 OF TRESPASS 
 
 the same field. And every such entry or breach of a man's close 
 carries necessarily along with it some damage or other ; for if 
 no other special loss can be assigned, yet still the words of the writ 
 itself specify one general damage, viz. the treading down and 
 bruising his herbage. 
 
 One must have a property (either absolute or temporary) in 
 the soil, and actual possession by entry, to be able to maintain an 
 action of trespass ; or, at least, it is requisite that the party have 
 a lease and possession of the vesture and herbage of the land. 
 Thus if a meadow be divided annually among the parishioners 
 by lot, then after each person's several portion is allotted, they 
 may be respectively capable of maintaining an action for the 
 breach of their several closes : for they have an exclusive interest 
 and freehold therein for the time. But before entry and actual 
 possession, one cannot maintain an action of trespass, though he 
 ' hath the freehold in law. And therefore an heir before entry 
 cannot have this action against an abator ; though a disseizee 
 might have it against the disseizor, for the injury done by the 
 disseizin itself, at which time the plaintiff was seized of the land : 
 but he cannot have it for any act done after the disseisin, until 
 he hath gained possession by re-entry, and then he may well 
 maintain it for the intermediate damage done ; for after his re- 
 entry the law, by a kind oijus postliminii, supposes the freehold 
 to have all along continued in him. 
 
 A man is answerable for not only his own trespass, but that 
 of his cattle also : for, if by his negligent keeping they stray 
 upon the land of another (and much more if he permits, or drives 
 them on), and they there tread down his neighbor's herbage, and 
 spoil his corn or his trees, this is a trespass for which the owner 
 must answer in damages, and the law gives the party injured a 
 double remedy in this case ; by permitting him to distrain the 
 cattle thus daniage-feasant, or doing damage, till the owner shall 
 make him satisfaction : or else by leaving him to the common 
 remedy inforo contentioso, by action. And the action that lies in 
 either of these cases of trespass committed upon another's land 
 either by a man himself or his cattle, is the action of trespass vi 
 et annis : whereby a man is called upon to answer, qztare vi et 
 armis claicsum ipsius A. apud B. f regit, et blada ipsius A. advaU 
 entiam centum solidorum ibidem nuper crescentia cum quibusdirn 
 ivcriis depastus fuit, conculcavit, et consumpsit, &c. for the law 
 
OF TRESPASS. 737 
 
 always couples the idea of force with that of intrusion upon the 
 property of another. And herein, if any unwarrantable act of 
 the defendant or his beasts in coming upon the land be proved, 
 it is an act of trespass for which the plaintiff must recover some 
 damages; such however as the jury shall think proper to assess 
 
 In trespasses of a permanent nature, where the injury is cpn 
 tinually renewed (as by spoiling or consuming the herbage with 
 the defendant's cattle), the declaration may allege the injury to 
 have been committed by continuation from one given day to 
 another (which is called laying the action with a continuando), 
 and the plaintiff shall not be compelled to bring separate actions 
 for every day's separate offence. But where the trespass is by 
 one or several acts, each of which terminates in itself, and being 
 once done cannot be done again, it cannot be laid with a contin- 
 uando ; yet if there be repeated acts of trespass committed (as 
 cutting down a certain number of trees), they may be laid to be 
 done, not continually, but at divers days and times within a given 
 period.' 
 
 In some cases trespass is justifiable; or rather entry, on 
 another's land or house shall not in those cases be accounted 
 trespass : as if a man comes thither to demand or pay money 
 there payable ; or to execute, in a legal manner, the proces:; ol 
 the law. Also a man may justify entering into an inn or 
 public house, without the leave of the owner first specially asked ; 
 because when a man professes the keeping such inn or public 
 house, he thereby gives a general license to any person to enter 
 his doors. So a landlord may justify entering to distrain for 
 rent ; a commoner to attend his cattle, commoning on another's 
 land ; and a reversioner, to see if any waste be committed on the 
 estate ; for the apparent necessity of the thing. Also it hath 
 been said, that by the common law and custom of England the 
 poor are allowed to enter and glean upon another's ground after 
 the harvest, without being guilty of trespass : which humane pro- 
 vision seems borrowed from the Mosaical law. But in cases 
 where a man misdemeans himself, or makes an ill use of the 
 authority with which the law intrusts him, he shall be accounted 
 a trespasser ab initio : as if one comes into a tavern and will not 
 go out in a reasonable time, but tarries there all night contrary 
 
 ' [But the latter mode prevails in modern practice, and the fonw of de- 
 ■uaring wit^ a continuando has grown obsolete.] 
 
 48 
 
738 OF NUISANCE. 
 
 to the inclinations of the owner ; this wrongful ac shall affect, 
 and have relation back even to his first entry, andrnftke the whole 
 -a trespass. But a bare nonfeasance, as not paying for the wine 
 he calls for, will not make him a trespasser ; for this is only a 
 breach of contract, for which the taverner shall have an action of 
 debt or assumpsit against him. But if a reversioner, who enters 
 on pretence of seeing waste, breaks the house, or stays there 
 all night ; or if the commoner who comes to tend his cattle, cuts 
 'down a tree ; in these and similar cases, the law judges that he 
 entered for this unlawful purpose, and therefore, as the act which 
 demonstrates such his purpose is a trespass, he shall be esteem- 
 ed a trespasser ab initio. 
 
 A man may also justify in an action of trespass, on account 
 of the freehold and right of entry being in himself ; and this de- 
 fence brings the title of the estate in question. This is there- 
 fore one of the ways devised, since the disuse of real actions, to 
 try the property of estates ; though it is not so usual as that by 
 ejectment, because that, being now a mixed action, not only 
 gives damages for the ejection, but also possession of the land ; 
 whereas in trespass, which is merely a personal suit, the right 
 can be only ascertained, but no possession delivered ; nothing 
 being recovered but damages for the wrong committed. 
 
 CHAPTER XI. 
 
 [BL. COMM. — BOOK III. CH. XIII.] 
 
 Of Nuisance. 
 
 A THIRD species of real injuries to a man's lands and tene- 
 ments, is by nuisance. Nuisance, nocumentum, or annoyance, 
 signifies anything that worketh hurt, inconvenience, or damage. 
 And nuisances areof two kinds :/«Wz^ or ^o»«W(7«.nuisances, which 
 affect the public, and are annoyance to all the king's subjects : 
 for which reason we must refer them to the class of public wrongs 
 or crimes and misdemeanors : and private nuisances, which are 
 the objects of our present consideration, and may be defined, any 
 thing done to the hurt or annoyance of the lands, tenements, or 
 
OF NUISANCE. 
 
 Tl^ 
 
 hereditaments of another. We will therefore, firht; hiarjc out the 
 several kinds of nuisances, and then their respective iremedies. , 
 
 I. In discussing the several kinds of nuisances, we will con- 
 sider, first such nuisances as may affect a man's corporeal heredit- 
 aments, and then those that may damage such as are incorpo- 
 reaL^ ; 
 
 I. First, as to corporeal inheritances. If a man builds a house 
 so close to mine that his roof overhangs my roof, and throws the 
 water off his roof upon mine, this is a nuisance, for which an 
 action will lie. Likewise to erect a house or other building sc 
 near to mine, that it obstructs my ancient lights and windows,'is 
 a nuisance of a similar nature.-)- But in this latter case it is ne- 
 cessary that the windows be ancient ; that is, have subsisted there a 
 longtime without interruption ; otherwise there is no injury done. 
 For he hath as much right to build a new edifice upon his ground 
 as I have upon mine ; since every man may erect what.ihepleaseg 
 upon the upright or perpendicular of his own soil, , so; as; not to 
 prejudice what has long been enjoj'ed by another,; cUid,it was my 
 folly to build so near another's ground. Also if ;a person keeps 
 his hogs, or other noisome animals, so near the house of, another, 
 that the stench of them incommodes him and makes, the ^ir un- 
 wholesome, this is an injurious nuisance, as it tends to deprive 
 him of the use and benefit of his house. A like injury is,\if one's 
 neighborsets up and exercises an offensive trade ; as a ..tanner's,' a 
 tallow-chandler's, or the like ; for though these are Jawful and 
 necessary trades, yet they should be exercised in remote places ;; 
 for the rule is, "sic utere tuo, utalienum non Joedas :" thi§ ther0- 
 fore is an actionable nuisance. So that the nuisances which af- 
 fect a man's dwelling mz-Y be reduced to these; three; i. Over- 
 hanging it ; which is also a species of trespass, for cujus- est solum, 
 ejus est Usque ad caelum : 2. Stopping ancient lights : and 3. 
 ;Corrupting the air with noisome smells : for light and air are two 
 indispensable requisites to every dwelling. But depriving one 
 of a mere matter of pleasure, as of a fine prospect by building a 
 
 ' When an act, which would, by the rules of the cOmmon-layir, be a nuisance, is authorized by 
 act of the fegislature, either expressly or by necessary implication, as £.^. the construction of a rail- 
 road and the running of trains, the ringing of factory bells, etc., the legislative sanction (unl^js 
 unconstitutional) makes the act lawful, and^persons suffering therefrom are without redress. Such 
 »n act is often called a " legalized nuisance." (136 Mass. 239; 109 U. S. 385.) But if the authority 
 wnferred be exceeded, or be improperly or negligently exercised, and a nuisance be thereby cause^ 
 orothetinjury done.'the person injured is entitled to redress. (103 N. Y. 10; 108 U. S, 317J , 
 t See aff/tf, pp. 232 and 516.. 
 
740 OF NUISANCE. 
 
 wall, or the like : this, as it abridges nothing really convenient or 
 necessary, is no injury to the sufferer, and is therefore not an 
 actionable nuisance. 
 
 As to nuisance to one's lands : if one erects a smelting-house 
 for lead so near the land of another, that the vapor and smoke 
 kill his corn and grass, and damage his cattle therein, this is 
 held to be a nuisance. And by consequence it follows, that if 
 one does any other act, in itself lawful, which yet being done in 
 that place necessarily tends to the damage of another's property, 
 it is a nuisance : for it is incumbent on him to find some other 
 place to do that act, where it will be less offensive. So also, if 
 my neighbor ought to scour a ditch, and does not, whereby my 
 land is overflowed, this is an actionable nuisance. 
 
 With regard to other corporeal hereditaments : it is a nuisance 
 to stop or divert water that uses to run to another's meadow or 
 mill ; to corrupt or poison a water-course, by erecting a dye- 
 house or a lime-pit for the use of trade, in the upper part of the 
 stream • or in short to do any act therein, that in its consequences 
 must necessarily tend to the prejudice of one's neighbor^ So 
 closely does the law of England enforce that excellent rule of 
 gospel morality, of " doing to others, as we would they should 
 do unto oiirselves." 
 
 2. As to ««r<7/2*<?ri?«/ hereditaments, the law carries itself with 
 the same equity. If I have a way, annexed to my estate, across 
 another's land, and he obstructs me in the use of it, either by 
 totally stopping it, or putting logs across it, or ploughing over it, 
 it is a nuisance : for in the first case I cannot enjoy my right at 
 all, and in the latter I cannot enjoy it so commodiously as I 
 ought. Also, if I am entitled to hold a fair or market, and 
 another person sets up a fair or market so near mine that he 
 does me a prejudice, it is a nuisance to the freehold which I have 
 in my market or fair. But in order to make this out to be a 
 nuisance, it is necessary, i. That my market or fair be the elder, 
 otherwise the nuisance lies at my own door. 2. That the market 
 be erected within the third part of twenty miles from mine. 
 If a ferry is erected on a river, so near another ancient ferry as 
 to draw away its custom, it is a nuisance to the owner of the old 
 one. For where there is a ferry by prescription, the owner is 
 bound to keep it always in repair and readiness, for the ease 
 of all the king's subjects ; otherwise he may be grievouslj 
 
OF NUISANCE. 741 
 
 amerced : it would be therefore extremely hard, if \ new ferry 
 were suffered to share his profits, which does not also share his 
 burthen. But where the reason ceases, the law also ceases with 
 it : therefore it is no nuisance to erect a mill so near mine, as to 
 draw away the custom, unless the miller also intercepts the water. 
 Neither is it a nuisance to set up any trade, or a school, in a 
 neighborhood or rivalship with another : for by such emulation 
 the public are like to be gainers ; and, if the new mill or school 
 occasion a damage to the old one, it is damnum absque injuria. 
 
 II. Let us next attend to the remedies, which the law has 
 given for this injury of^nuisance. And here I must premise that 
 the law gives no private remedy for any thing but a private 
 wrong. Therefore no action lies for a public or common nui- 
 sance, but an indictment only : because the damage being com- 
 mon to a// the king's subjects, no one can assign his particular 
 proportion of it ; or if he could, it would be extremely hard, if 
 every subject in the kingdom were allowed to harass the offendei 
 with separate actions. For this reason, no person, natural 01 
 corporate, can have an action for a public nuisance, or punish it ; 
 but only the king in his public capacity of supreme governor, 
 iwdi pater familias of the kingdom. Yet this rule admits of one 
 exception ; where a private person suffers some extraordinary 
 damage, beyond the rest of the king's subjects, by a public nui- 
 sance ; in which case he shall have a private satisfaction by 
 action.' As if, by means of a ditch dug across the public way, 
 which is a common nuisance, a man or his horse suffer any injury 
 by falling therein ; there for this particular damage, which is not 
 common to others, the party shall have his action. Also if a man 
 hath abated, or removed, a nuisance which offended him (as we 
 may remember it was stated in the first chapter of this book, 
 that the party injured hath a right to do), in this case he is en- 
 titled to no action." For he had choice of two remedies ; either 
 withojt suit, by abating it himself, by his own mere act and 
 authority ; or by suit, in which he may both recover damages, 
 
 'See Brayton v. Fall River, 113 Mass. 218; Francis v. Schoellkopf, t)-i 
 N. Y. 152; Fort Plain Bridge Co. v. SmUh, 30 N. Y. 44; Miss. &=■<;. R. Co. 
 V. Ward, 2 Black (U. S.), 485. 
 
 ' But it is now held that although a nuisance be abated, the abator may 
 maintam an action to recover for damages sustained previous to the abate- 
 ment. {Pierce v. Dart, 7 Cow. 609 ; Lansing v. Smith, 4 Wend. 9.) 
 
742 OF NUISANCE. 
 
 and remove it by the aid of the law : but, having made his elec- 
 tion of one remedy, he is totally precluded from the other. 
 
 The remedies by suit are, i. By action on the case for dam- 
 ages ; in which the party injured shall only recover a satisfaction 
 for the injury sustained ; but cannot thereby remove the nuisance. 
 Indeed every continuance of a nuisance is held to be a fresh one ; 
 and therefore a fresh action will lie, and very exemplary damages 
 will probably be given, if, after one verdict against him, the de- 
 fendant has the hardiness to continue it. Yet the founders of 
 the law of England did not rely upon probabilities merely, in 
 order to give relief to the injured. They have therefore provided 
 two other actions ; the assize of nuisance, and the writ of quod 
 permittat prostemere : which not only give the plaintiff satisfac- 
 tion for his injury past, but also strike at the root and remove the 
 cause itself, the nuisance that occasioned the injury. These two 
 actions however can only be brought by the tenant of the free- 
 hold; so that a lessee for years is confined to his action upon the 
 case.* 
 
 2. An assize of nuisance is a writ : wherein it is stated that 
 the party injured complains of some particular fact done, ad 
 nocumentum liberi tenementi sui, and therefore commanding the 
 sheriff to summon an assize, that is a jury, and view the premises, 
 and have them at the next commission of assizes, that justice 
 may be done therein : and, if the assize is found for the plaintiff, 
 he shall have judgment of two things : i. To have the nuisance 
 abated ; and, 2. To recover damages. 
 
 3. T\\& quod permittat prostemere, \smth& nature of a writ of 
 right. This is a writ commanding the defendant to permit the 
 plaintiff to abate, quod permittat prosternere, the nuisance com- 
 plained of ; and unless he so permits, to summon him to appear 
 in court, and show cause why he will not. And the plaintiff 
 shall have judgment herein to abate the nuisance, and to re- 
 cover damages against the defendant. 
 
 Both these actions, of assize of nuisance, and of quod permittat 
 
 * Both these actions were abolished by statute 3 & 4 Will. IV., ch. 27. 
 Thsy have also been generally abolished in the United States, and an action 
 on the case for damages is employed in their stead. But, in some States, 
 special statutory remedies have been provided in conjunction with the action 
 on the case'. The equitable remedy of injunction is frequently employed as 
 a mode.rf preventing the continuance of a nuisance. 
 
OF WASTE. 743 
 
 prostemere are now out of use, and have given way to the action 
 on the case ; in which, as was Before observed, no judgment can 
 be had to abate the nuisance, but only to recover damages. 
 
 CHAPTER XII. 
 
 [BL. COMM. BOOK III. CH. XIV.] 
 
 Of Waste. 
 
 The fourth species of injury, that may be offered to one's 
 real property is by waste, or destruction in lands and tenements. 
 What shall be called waste was considered at large in a former 
 book, as it was a means of forfeiture and thereby of transferring 
 the property of real estates. I shall therefore here only beg 
 leave to remind the student, that waste is a spoil and destruction 
 of the estate, either in houses, woods, or lands ; by demolishing 
 not the temporary profits only, but the very substance of the 
 thing, thereby rendering it wild and desolate ; which the common 
 law expresses very significantly by the word vastum : and that 
 this vastum, or waste, is either voluntary, or permissive ; the one 
 by an actual and designed demolition of the lands, woods, and 
 houses ; the other arising from mere negligence, and want of 
 sufficient care in reparations, fences, and the like. So that my 
 only business is at present to show, to whom this waste is an 
 injury ; and of course who is entitled to any, and what, remedy 
 by action. ' 
 
 I. The persons who may be injured by waste, are such as 
 have some interest in the estate wasted ; for if a man be the 
 absolute tenant in fee-simple, without any incumbrance or 
 charge on the premises, he may commit whatever waste his own 
 indiscretion may prompt him to, without being impeachable, or 
 accountable for it to any one. And, though his heir is sure to 
 be the sufferer, yet nemo est kceres viventis ; no man is certain 
 of succeeding him, as well on account of the uncertainty which 
 shall die first, as also because he has it in his power to consti- 
 tute what heir he pleases, according to the civil law notion of an 
 hares natus and an hceres f actus : or, in the more accurate phrase 
 
744 OF WASTE. 
 
 olbgy of our English law, he may aliene,or devise his estate to 
 whomcTier he thinks proper, and by such alienation or devise 
 may disinherit his heir at law. Into whose hands soever there- 
 fore the estate wasted comes, after a tenant in fee-simple, though 
 the waste is undoubtedly damnum, it is damnum absque injuria. 
 
 One species of interest, which is injured by waste, is that of 
 a person who has a right of common in the place wasted ; espe- 
 cially if it be common of estovers, or a right of cutting and carry- 
 ing away wood for house-bote, plough-bote, &c. Here, if the 
 owner of the wood demolishes the whole wood, and thereby 
 destroys all possibility of taking estovers, this is an injury to 
 the commoner, amounting to no less than a disseizin of his 
 common of estovers, if he chooses so to consider it ; for which 
 he has his remedy to recover possession and damages by assize. 
 If entitled to a freehold in such common ; but if he has only a 
 chattel interest, then he can only recover damages by an action 
 dn the case for this waste and destruction of the woods, out of 
 which his estovers were to issue. 
 
 But the most usual and important interest, that is hurt by 
 this commission of waste, is that of him who hath the remainder 
 or reversion of the inheritance, after a particular estate for life 
 or years in being. Here, if the particular tenant (be it the ten- 
 ant in dower or by curtesy, who was answerable for waste at 
 the common law), or the lessee for life or years, who was first 
 made liable by the statutes of Marlbridge and of Gloucester, if 
 the particular tenant, I say, commits or suffers any waste, it is a 
 manifest injury to him that has the inheritance, as it tends to 
 mangle and dismember it of its most desirable incidents and 
 ornaments, among which timber and houses may justly be reck- 
 oned the principal. To him therefore in remainder and rever- 
 sion, to whom the inheritance appertains in expectancy, the law 
 hath given an adequate remedy. For he, who hath the remainder 
 for life only, is not entitled to sue for waste ; since his interest 
 may never perhaps come into possession, and then he hath 
 suffered no injury. 
 
 II. The redress for this injury of waste is of two kinds; 
 preventive, and corrective : the former of which is by writ of 
 estrepement, the latter by that of waste} 
 
 1 Both these writs have been abolished in England, and generally in- 
 *he United States ; and an action on the case for damages is used in theii 
 
OF WASTE. 745 
 
 1. Estrepement is an old French word, signifying the SAine 
 as waste or extirpation : and the writ of estrepement lay at the 
 common law, after judgment obtained in any action real, and 
 before possession was delivered by the sheriff ; to stop any waste 
 which the vanquished party might be tempted to commit in 
 lands, which were determined to be no longer his. But as in some 
 cases the demandant may be justly apprehensive, that the tenant 
 may make waste or estrepement pending the suit, well knowing 
 the weakness of his title, therefore the statute of Gloucester gave 
 another writ of estrepement, pendente placito, commanding the 
 sheriff firmly to inhibit the tenant " ne faciat vastum vel estrSpe- 
 mentum pendente placito dicto indiscusso." And, by virtue of 
 either of these writs the sheriff may resist them that do, or offer 
 to do waste ; and, if otherwise he cannot prevent them, he may 
 lawfully imprison the wasters, or make a warrant to others to 
 imprison them : or, if necessity require, he may take the posse 
 comitatus to his assistance. So odious in the sight of the law is 
 waste and destruction. 
 
 Besides this preventive redress at common law, the courts of 
 equity, upon bill exhibited therein, complaining of waste and 
 destruction, will grant an injunction in order to stay waste, until 
 the defendant shall have put in his answer, and the court shall 
 thereupon make further order. Which is now become the most 
 usual way of preventing waste. 
 
 2. A writ of waste is also an action, partly founded upon the 
 common law, and partly upon the statute of Gloucester ; and may 
 be brought by him who hath the immediate estate of inheritance 
 in reversion or remainder, against the tenant for life, tenant in 
 dower, tenant by curtesy, or tenant for years. This action is 
 also maintainable in pursuance of statute Westm. 2, by one 
 tenant in common of the inheritance against another, who makes 
 waste in the estate holden in common. But these tenants in 
 common and joint-tenants are not liable to the penalties of the 
 statute of Gloucester, which extends only to such as have life- 
 estates, and do waste to the prejudice of the inheritance. The 
 waste however must be something considerable ; for if it amount 
 stead. This is more comprehensive in its scope than the former action of 
 waste, since it may be brought by a reversioner or remainder-man for life or 
 years. An injunction may also, in many instances, be obtained in equity as 
 a preventive remedy. (See ante, page 304, note 1.) The writ of estrepe- 
 ment ]& still in use in Pennsylvania. (122 Pa. St. 78.) 
 
746 OF WASTE:. 
 
 only to twelve pence, or some such petty sum, the plaint' Ef shall 
 not recover in an action of waste : nam, de minimis non curat lex. 
 
 This action of waste is a mixed action ; partly real, so far as 
 it recovers land ; and partly personal, so far as it recovers 
 damages. For it is brought for both those purposes ; and, if the 
 waste be proved, the plaintiff shall recover the thing or place 
 wasted, and also treble damages by the statute of Gloucester, 
 The writ of waste calls upon the tenant to appear and show 
 cause why he hath committed waste and destruction in the place 
 named, ad exhceredationem, to the disinherison, of the plaintiff. 
 The defendant, on the trial, may give in evidence anything 
 that proves there was no waste committed, as that the destruc- 
 tion happened by lightning, tempest, the king's enemies, or 
 other inevitable accident. But it is no defence to say, that a 
 stranger did the waste, for against him the plaintiff hath no 
 remedy : though the defendant is entitled to sue such stranger 
 in an action of trespass vi et armis, and shall recover the 
 damages he has suffered in consequence of such unlawful act. 
 
 When the waste and damages are ascertained, either by 
 confession, verdict, or inquiry of the sheriff, judgment is given 
 in pursuance of the statute of Gloucester, ch. 5, that the plaintiff 
 shall recover the place wasted ; for which he has immediately a 
 writ of seizin, provided the particular estate be still subcisting 
 (for, if it be expired, there can be no forfeiture of the land), and 
 also that the plaintiff shall recover treble the damages assessed 
 by the jury, which he must obtain in the same manner as all 
 other damages, in actions personal and mixed, are obtained, 
 whether the particular estate be expired, or still in being. 
 
OF INJURIES PROCEEDING FROM, ETC. 747 
 
 CHAPTER XIII. 
 
 [bL. COMM.--BOOK III. CH. XVII.] 
 
 Of Injuries Proceeding from, or affecting the Crown, jr State, 
 
 Having in the preceding chapters considered the injuries, 
 or private wrongs, thaj may be offered by one subject to another, 
 all of which are redressed by the command and authority of the 
 king, signified by his original writs returnable in the several 
 courts of justice, which thence derive a jurisdicti(Jn of examining 
 and determining the complaint ; I proceed now to inquire into 
 the mode of redressing those injuries to which the crown itself 
 is a party. We will consider first, the manner of redressing 
 those wrongs or injuries which a subject may suffer from the 
 crown, and then of redressing those which the crown may receive 
 from a subject. 
 
 I. That the king can do no wrong, is a necessary and funda- 
 mental principle of the English constitution. Whenever there- 
 fore it happens, that, by misinformation, or inadvertence, the 
 crown hath been induced to invade the private rights of any of 
 its subjects, though no action will lie against the sovereign (for 
 who shall command the king ?) yet the law hath furnished the 
 subject with a decent and respectful mode of removing that in- 
 vasion, by informing the king of the true state of the matter in 
 dispute: and, as it presumes that to know of any injury and to 
 redress it are inseparable in the royal breast, it then issues as of 
 course, in the king's own name, his orders to his judges to do 
 justice to the party aggrieved. 
 
 The distance between the sovereign and his subjects is such, 
 that it rarely can happen that any personal injury can immedi- 
 ately and directly proceed from the prince to any private man ; 
 and, as it can so seldom happen, the law in decency supposes 
 that it never will or can happen at all. But injuries to the rights 
 ^i property can scarcely be committed by the crown without the 
 intervention of its officers ; for whom the law in matters of right 
 entertains no respect or delicacy, but furnishes various methods 
 
748 OF INJURIES PROCEEDING FR OM, 
 
 of detecting the errors or misconduct of those agents, by whom 
 the king has been deceived, and induced to do a temporary in- 
 justice. 
 
 The common law methods of obtaining possession or restitu- 
 tion from the crown, of either real or personal property, are, i. 
 ^Y petition de droit, or petition of right : which is said to owe its 
 original to King Edward the First. 2. By monstrans de droit, 
 manifestation or plea of right : both of which may be preferred 
 or prosecuted either in the chancery or exchequer. The former 
 is of use, where the king is in full possession of any heredita- 
 ments or chattels, and the petitioner suggests such a right as 
 controverts the title of the crown, grounded on facts disclosed in 
 the petition itself;. it which case he must be careful to state 
 truly the whole title of the crown, otherwise the petition shall 
 abate : and then, upon this answer being endorsed or underwrit- 
 ten by the king, soit droit fait al partie (let right be done to the 
 party), a commission shall issue to inquire of the truth of this 
 suggestion : after the return of which the king's attorney is at 
 liberty to plead in bar ; and the merits shall be determined upon 
 issue or demurrer, as in suits between subject and subject. But 
 where the right of the party, as well as the right of the crown, 
 appears upon record, there the party shall have monstrans de 
 droit, which is putting in a claim of right grounded on facts 
 already acknowledged and established, and praying the judgment 
 of the court, whether upon those facts the king or the subject 
 hath the right.^ But as this seldom happens, and the remedy by 
 petition was extremely tedious and expensive, that by monstrans 
 
 ' These peculiar remedies are confined to English practice, and have no 
 application in the United States. An individual must seek redress from the 
 State by action at law, or by application to the legislature. It is a general 
 principle, that a sovereignty cannot be sued in its own courts, unless special 
 provision has been made by constitution or by legislative enactment for the 
 maintenance of such suits. The right to bring action against the State 
 must, therefore, be founded upon its own permission. Such actions are ex- 
 pressly sanctioned in a number of the States, but the right extends no fur- 
 ther than the statutes expressly warrant. In cases beyond the scope of 
 their provisions, a remedy must be sought from the legislature. Controver- 
 sies between different States may be adjudicated upon in the United States 
 Courts ; but it is expressly provided by the Constitution that the judicial 
 power of these courts shall not extend to suits prosecuted against one of the 
 States by citizens of another State or by citizens or subjects of any foreign 
 State, (nth Am't. See Windsor Ss^c. R. Co. v. Queen b'c. R. Co., n App. 
 Cas. 607 ; People v. Dennison, 84 N. Y. 272.) 
 
OR AFFECTING THE CROVl'N. 749 
 
 was much enlarged, and rendered almost universal by several 
 statutes. 
 
 II. The methods of redressing such injuries as the crown 
 may receive from the subject are : — 
 
 r. By such usual common law actions, as are consistent with 
 the royal prerogative and dignity. As therefore the king, by 
 reason of his legal ubiquity, cannot be disseized or dispossessed of 
 any real property which is once vested in him, he can maintain 
 no action which supposes a dispossession of the plaintiff ; such 
 as an assize or an ejectment: but he may bring an action for 
 trespass for taking a-jyay his goods ; but such actions are not 
 usual (though in strictness maintainable) for breaking his close, 
 or other injury done upon his soil or possession. It would be 
 equally tedious and difficult, to run through every minute distinc- 
 tion that might be gleaned from our ancient books with regard 
 to this matter ; nor is it in any degree necessary, as much easier 
 and more effectual remedies are usually obtained by such preroga- 
 tive modes of process, as are peculiarly confined to the crown. 
 
 2. Such as that of inquisition or inquest of office: which is an 
 inquiry made by the king's officer, his sheriff, coroner, or escheator, 
 virtute officii, or by writ to them sent for that purpose, or by 
 commissioners specially appointed, concerning any matter that 
 entitles the king to the possession of lands or tenements, goods 
 or chattels. This is done by a jury of no determinate number ; 
 being either twelve, or less, or more. As, to inquire, whether 
 the king's tenant for life died seized, whereby the reversion ac- 
 crues to the king : whether A., who held immediately of the 
 crown, died without heirs ; in which case the lands belong to the 
 king by escheat : whether B. be attainted of treason ; whereby 
 his estate is forfeited to the crown : whether C, who has pur- 
 chased lands, be an alien ; which is another cause of forfeiture : 
 whether D. be an idiot a nativitate ; and therefore, together with 
 his lands, appertains to the custody of the king ; and other ques- 
 tions of like import, concerning both the circumstances of the 
 tenant, and the value or identity of the lands. These inquests of 
 office were more frequently in practice than at present, during the 
 continuance of the military tenures amongst us : when, upon the 
 death of every one of the king's tenants, an inquest of office was 
 held, called an inquisitio post mortem, to inquire of what lands he 
 died seized, who was his heir, and of what age, in order to entitle 
 
759 OPINJURIES PROCEEDING FROM, 
 
 the king, to his marriage, wardship, relief, primer seizin, or othei 
 advantages, as the circumstances of the case might turn out. 
 
 ■With 'regard to Other matters the inquests of office still re- 
 main in force, and are taken upon proper occasions ; being 
 extended hot only to lands, but also to goods and chattels per- 
 sonal, as in the case of wreck, treasure-trove, and the like ; and 
 especially as to forfeitures for offences. For every jury which 
 tries a man for treason or felony, every coroner's inquest that sits 
 upon z.felo de se, or one killed by chance-medley, is not only with 
 regard to chattels, but also as to real interests, in all respects an 
 inquest of office : and if they find the treason or felony, or even 
 the flight of the party accused (though innocent), the king is 
 thereupon, by virtue of this office found, entitled to have his for- 
 feitures ; and also, in the case of chance-medley, he or his grantees 
 are entitled to such things by way of deodand, as have moved to 
 the death of the party. 
 
 These inquests of office were devised by law, as an authentic 
 means to give the king his right by solemn matter of record ; 
 without which he in general can neither take, nor part from any 
 thing. For it is a part of the liberties of England, and greatly 
 for the safety of the subject, that the king may not enter upon 
 or seize any man's possessions upon bare surmises without the 
 intervention of a jury. 
 
 With regard to real property, if an office be found for the 
 king, it puts him in immediate possession, without the trouble of 
 a formal entry, provided a subject in the like case would have 
 had a right to enter ; and the king shall receive ail the mesne or 
 interniediate profits from the time that his title accrued- As, on 
 the other hand, by the articuli super cartas,\i the king's escheator 
 or sheriff seize lands into the king's hand without cause, upon 
 taking them out of the king's hand again, the party shall have 
 the mesne profits restored to him.' 
 
 3. Where the crown hath unadvisedly granted anything by 
 
 ' " Inquest of office," is a common remedy in the United States, applicable 
 'to: cases where real property is forfeited to the State. It is most conlmonly 
 employed'when lands escheat to the State for want of hpirs. In some States, 
 moreover, the common-law disabilities of aliens in regard to the holding of 
 property acquired by purchase have not been removed, and this form of pro- 
 cedure is resorted to to secure a forfeiture of the lands to the State. But, ift 
 i' number of the States, aliens have been empowered to hold lands by ar 
 ■indefeasible title. '■ (See ante, page 119, note 2.) 
 
OR AFFECTING THE CROWN. 751 
 
 letters-patent, which ought not to be granted, or where the 
 patentee hath done an aejt that amounts to a forfe ture of the 
 grant, the remedy to repeal the patent is by writ of scire facias 
 in chancery. This may be brought either on the part of the 
 king in order to resume the thing, granted ; or, if the grant be in- 
 jurious to a subject, the king is bound of right to permit him 
 (upon his petition) to use his royal name for repealing the patent 
 in a scire facias. And so also, if upon office untruly found for 
 the king, he grants the land over to another, he who is grieved 
 thereby, and. traverses the office itself, is entitled before issue 
 joined to a scire facia^ against the patentee, in order to avoid the 
 grant. 
 
 4. An information on behalf of the crown, filed in the exche- 
 quer by the king's attorney-general, is a method of suit for 
 recovering money or other chattels, or for obtaining satisfaction 
 in damages for any personal wrong committed in the lands or other 
 possessions of the crown. It differs from an information filed in 
 the court of king's bench, of which we shall treat in the next 
 book ; in that this is instituted to redress a private wrong, by 
 which the property of the crown is affected ; that is calculated to 
 punish some public wrong, or heinous misdemeanor in the de- 
 fendant. It is grounded on no wpt under seal, but merely on 
 che intimation of the king's officer, the attorney-general, who 
 "gives the court to understand and be informed of" the matter 
 in question : upon which the party is put to answer, and trial is 
 had, as in suits between subject and subject. The most usual 
 informations are those of intrusion and debt : intrusion, for any 
 trespass committed on the lands of the crown, as by, entering 
 thereon without title, holding over after a lease is determined, 
 taking the profits, cutting down timber, or the like ; and debt, 
 upon any contract for monies due to the king, or for any for- 
 feiture due to the crown upon the breach of a penal statute. This 
 is most commonly used to recover forfeitures occasioned by trans- 
 gressing those laws, which are enacted for the establishment and 
 support of the revenue ; others, which regard mere matters of 
 pohcc and public convenience, being usually left to be enforced 
 by common informers, in the qui tarn iiformations or actions, of 
 which we have formerly spoken. But after the attorney-general 
 has informed upon the breach of a penal law, no other informa- 
 tion can be received. There is also an information in rem, when 
 
752 ^JF injuries PROCEEDING FROM, 
 
 any goods are supijjosed to become the property of the crown, 
 and no man appears to claim them, or to dispute the title of the 
 king. As anciently in the case of treasure-trove, wrecks, waifs, 
 and estrays, seized by the king's officer for his use. 
 
 5. A writ of quo warranto is in the nature of a writ of right 
 for the king, against him who claims or usurps any office, fran- 
 chise, or liberty, to inquire by what authority he supports his 
 claim, in order to determine the right. It lies also in case of 
 non-user or long neglect of a franchise, or misuser or abuse of 
 it ; being a writ commanding the defendant to show by what 
 warrant he exercises such a franchise, having never had any 
 grant of it, or having forfeited it by neglect or abuse. This was 
 originally returnable before the king's justices at Westminster ; 
 but afterwards only before the justices in eyre, by virtue of the 
 statutes of quo warranto, 6 Edw. I., ch. i, and 18 Edw. I., st. 2; 
 but since those justices have given place to the king's temporary 
 commissioners of assize, the judges on the several circuits, this 
 branch of the statutes hath lost its effect ; and writs of quo war- 
 ranto (if brought at all) must now be prosecuted and determined 
 before the king's justices at Westminster. And in case of judg- 
 ment for the defendant, he shall have an allowance of his fran- 
 chise ; but in case of judgment for the king, for that the party is 
 entitled to no such franchise, or hath disused or abused it, the 
 franchise is either seized into the king's hands, to be granted out 
 again to whomever he shall please ; or, if it be not such a fran- 
 chise as may subsist in the hands of the crown, there is merely 
 j udgment of ouster, to turn out the party who usurped it. 
 
 The judgment on a writ of quo warranto (being in the nature 
 of a writ of right) is final and conclusive even against the crown. 
 Which, together with the length of its process, probably occa- 
 sioned that disuse into which it is now fallen, and introduced a 
 more modern method of prosecution, by information filed in the 
 court of king's bench by the attorney-general, in the nature of a 
 writ of quo warranto , wherein the process is speedier, and the 
 judgment not quite so decisive. This is properly a criminal 
 method of prosecution, as well to punish the usurper by a fine 
 for the usurpation of the franchise, as to oust him, or seize it for 
 the crown ; but hath long been applied to the mere purposes of 
 trying the civil right, seizing the franchise or ousting the wrong- 
 ful possessor; the fire being nominal only. 
 
. UR AFFECTING THE CROWN. 753 
 
 This proceeding is however now applied to the decision ol 
 corporation disputes between party and party, by virtue of the 
 statute 9 Ann., ch. 20, which permits an information in nature oi 
 quo warranto to be brought with leave of the court, at the rela- 
 tion of any person desiring to prosecute the same (who is then 
 styled the relator), against any person usurping, intruding into, 
 or unlawfully holding any franchise or office in any city, borough, 
 or town corporate ; provides for its speedy determination ; and di- 
 rects that, if the defendant be convicted, judgment of ouster (as 
 well as a fine) may be given against him, and that the relator 
 shall pay or receive costs according to the event of the suit* 
 
 6. The writ of mandamus is also made by the same statute 
 9 Ann., ch. 20, a most full and effectual remedy, in the first place, 
 for refusal of admission where a person is entitled to an office or 
 place in any such corporation ; and, secondly, for wrongful re- 
 moval, when a person is legally possessed. These are injuries, 
 for which, though redress for the party interested may be had by 
 assize, or other means, yet as the franchises concern the public, 
 and may affect the administration of justice, this prerogative writ 
 also issues from the court of king's bench ; commanding, upon 
 good cause shown to the court, the party complaining to be ad- 
 mitted or restored to his office. And the statute requires, that 
 a return be immediately made to the first writ of mandamus : 
 which return may be pleaded to or traversed by the prosecutor, 
 and his antagonist may reply, take issue, or demur, and the same 
 proceedings may be had, as if an action on the case had been 
 brought, for making a false return : and, after judgment obtained 
 
 ' An information is most commonly used as a civil remedy in this proceed- 
 ing, known as an " information in the nature of a g'uo warranto.'''' This pro- 
 ceeding is still in use in many of the United States, and has substantially 
 the same scope of application as in the English practice. Thus, it may be 
 brought against an unincorporated society for the unauthorized exercise of 
 corporate powers ; against a duly organized corporation for non-user, or 
 misuse of its franchises or powers, or for a violation of its charter ; or 
 against any person for a usurpation of, or intrusion into, a public ofBce ; or the 
 unauthorized exercise of official powers, etc. The suit is commonly insti- 
 tuted by the attorney-general of the State of his own authority, or by a pri- 
 vate prosecutor or " relator," who uses the name of the attorney-general in 
 the proceeding as a matter of form. It is usually required that the leave ol 
 the court be obtained in those cases, as in England. In New York, and 
 «veral other States, this proceeding has been abolished : but a very similar 
 form of remedy by action has been substituted in its place. 
 
 49 
 
754 OF THE PURSUIT OF REMEDIES B / ACTION ; 
 
 for the prosecutor, he shall have a peremptory writ of mandamui 
 to compel his admission or restitution ; which latter (in case of 
 an action) is effected by a writ of restitution. So that now the 
 writ of mandamus, in cases within this statute, is in the nature 
 of an action : whereupon the party applying and succeeding may 
 be entitled to costs, in case it be the franchise of a citizen, bur- 
 gess, or freeman ; and also, in general, a writ of error may be 
 had thereupon/ 
 
 CHAPTER XIV. 
 
 [BL. COMM. BOOK III. CH. XVIII.] 
 
 Of the Pursuit of Remedies by Action; and first, of the Original Writ. 
 
 Having, under the head of redress by suit in courts, pointed 
 out in the preceding pages, in the first place, the nature and sev- 
 eral species of courts of justice, wherein remedies are adminis- 
 tered for all sorts of private wrongs ; and, in the second place, 
 shown to which of these courts in particular application must be 
 made for redress, according to the distinction of injuries, or, in 
 other words, what wrongs are cognizable by one court, and what by 
 another ; I proceeded, under the title of injuries cognizable by the 
 courts of common law, to define and explain the specifical reme- 
 dies by action, provided for every possible degree of wrong or 
 injury ; as well such remedies as are dormant and out of use, as 
 those which are in every day's practice, apprehending that the 
 reason of the one could never be clearly comprehended without 
 some acquaintance with the other : and, I am now, in the last 
 place, to examine the manner in which these several remedies 
 ■axQ pursued 2Sidi applied, by action in the courts of common law; 
 to which I shall afterwards subjoin a brief account of the pro- 
 ceedings in courts of equity.^ 
 
 * See ante, page 670, note 3, 
 
 ' The remaining chapters in this book, with the exception of the last, 
 treat of the system of practice and pleading in actions at law, which was in 
 force in England when these Commentaries were written, but which has been 
 in part superseded, and in part essentially modified by subsequent enactments. 
 In 1852, an act was passed, known as tr.e "Common-Law Procedure Act," 
 by which the methods of procedure were much simplified and improved, and 
 
AND FIRST, OF THE ORIGINAL WRIT. 755 
 
 In treating of remedies by action at common-law, I shall con« 
 fine m/self to the modem method of practice in our courts of 
 judicature. 
 
 What therefore the student may expect in this and the suc- 
 ceeding chapters, is an account of the method of proceeding in 
 and prosecuting a suit upon any of the personal writs we have 
 before spoken oi, m the court of common pleas at Westminster, 
 that being the court originally constituted for the prosecution of 
 all civil actions. But in giving an abstract or history of the 
 progress of a suit through the court of common pleas, we shall 
 at the same time give a ^general account of the proceedings of 
 the other two courts [the courts of king's bench and exchequer] ; 
 taking notice, however, of any considerable difference in the local 
 practice of each. And the same abstract will moreover afford 
 us some general idea of the conduct of a cause in the inferior 
 courts of common law. 
 
 The most natural and perspicuous way of considering the 
 subject before us will be (I apprehend) to pursue it in the order 
 and method wherein the proceedings themselves follow each 
 
 the practice of *he different courts reduced to substantial uniformity ; and 
 within the last few years, further changes of great importance have been 
 made by the Supreme Court of Judicature Act. But it has been deemed 
 most advisable to retain in the present edition the original text of Blackstone 
 (with some omissions), rather than to substitute a synopsis of the present Eng- 
 lish practice. For the present English system is subject constantly to statu- 
 tory changes, and differs in many respects from the metliods of procedure 
 in force in the Slates of this country. The ancient English practice was the 
 basis upon which the procedure of the American States was originally 
 founded ; and may, therefore, be reasonably considered of more value to the 
 American student, than that which has since been introduced in England in 
 its stead. It is true that, in the various States, important changes have been 
 made in the early systems of legal procedure, so that now there is no little 
 diversity in this respect ; but a statement of the methods of practice, in 
 which there was formerly essential uniformity in the different States, will be 
 ui more practical value to students in different parts of this country, than an 
 account of the present practice of any particular State. There is such a 
 general correspondence between all systems of practice, that every student 
 will find Blackstone's account of the principal rules of practice and pleading 
 of much importance as an introduction to the study of the procedure in his 
 own State. Nothing further, therefore, will be attempted in the annotations 
 upon the succeeding chapters, than to point out the most important changes 
 that have been made in the system of procedure, and to show what features 
 " '''''' •arly practice were not introduced into American law. 
 
756 OF THE PURSUIT OF REMEDIES BY ACTION; 
 
 other ; rather than to distract and subdivide it by any more log! 
 eal analysis. The general therefore and orderly parts of a suit 
 are these : i. The original writ ; 2. The process ; 3. The plead- 
 ings; 4. The issue or demurrer ; 5. The trial; 6. The judgment, 
 and its incidents ; 7. The proceedings in nature of appeals ; 8. 
 The execution. 
 
 First, then, of the original, or original writ ; which is the be- 
 ginning or foundation of 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 justice, for that 
 particular specific remedy which he is determined or advised to 
 pursue. As, for money due on bond, an action of debt ; for 
 goods detained without force, an action of detinue or trover; or, 
 if taken with force, an action of trespass vi et armis ; or to try 
 the title of lands, a writ of entry or action of trespass in eject- 
 ment ; or for any consequential injury received, a special action 
 on the case. To this end he is to sue out, or purchase by paying 
 the stated fees, an original, or original writ, from the court of 
 chancery, which is the officina justitice, the shop or mint of jus- 
 tice, wherein all the king's writs are framed. It is a mandatory 
 letter from the king in parchment, sealed with his great seal, 
 and directed to the sheriff of the county wherein the injury is 
 committed or supposed so to be, requiring him to command the 
 wrongdoer 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. 
 
 2 The use of the " original writ," as the mode of commencing a suit in 
 personal actions, was abolished by statute 2 Will. IV., ch. 39, and the prac- 
 tice in the different courts of law rendered uniform. It was provided that 
 actions should be commenced by the service of a summons upon the defend- 
 ant ; and by subsequent statutes, the same method has been retained, with 
 some extension of its application. In the United States, the use of the 
 " original writ " was early discarded, and more convenient methods of be- 
 ginning suits substituted in its stead. The most common mode adopted was 
 a writ of " summons," as in England. 
 
AND FIRST, OF THE ORIGINAL WRIT. 757 
 
 The day, on which the defendant is ordered to appear in 
 court, and on which the sheriff is to bring in the writ and report 
 how far he has obeyed it, is called the return of the writ ; it 
 being then returned by him to the king's justices at West- 
 minster. And it is always made returnable at the distance of 
 at least fifteen days from the date or teste, that the defendant 
 may have time to come up to Westmmster, even from the most 
 remote parts of the kingdom ; and upon some day in one of the 
 four terms, in which the court sits for the despatch of business. 
 
 These terms are supposed by Mr. Selden to have been insti- 
 tuted by William the Conqueror : but Sir Henry Spelman hath 
 clearly and learnedly shown, that they were gradually formed 
 from the canonical constitutions of the church : being indeed no 
 other than those leisure seasons of the year, which were not oc- 
 cupied by the" great festivals or fasts, or which were not liable to 
 the general avocations of rural business. Throughout all Christen- 
 dom, in very early times, the whole year was one continual term 
 for hearing and deciding causes. For the Christian magistrates, 
 to distinguish themselves from the heathens, who were extremely 
 superstitious in the observation of their dies fasti etnefasti, went 
 into a contrary extreme, and administered justice upon all days 
 alike. Till at length the church interposed and exempted cer- 
 tain holy seasons from being profaned by the tumult of forensic 
 litigations. As, particularly, the time of Advent and Christmas, 
 which .gave rise to the winter vacation ; the time of Lent and 
 Easter, which created that in the spring ; the time of Pentecost, 
 which produced the third ; and the long vacation, between Mid- 
 summer and Michaelmas, which was allowed for the hay-time 
 and harvest. All Sundays also, and some particular festivals, as 
 the days of the Purification, Ascension, and some others, were in- 
 cluded in the same prohibition : which v/as established by a 
 canon of the church, a. d. 517, and was fortified by an imperial 
 constitution of the younger Theodosius, comprised in the Theo- 
 dosian Code. 
 
 Afterwards, when our own legal constitution came to be set- 
 tled, the commencement and duration of our law terms were ap- 
 pointed with an eye to those canonical prohibitions ; and it was 
 ordered by the laws of King Edward the Confessor, that from 
 Advent to the octave of the Epiphany, from Septuagesima to the 
 octave of Easter, from the Ascension to the octave of Pentecost, 
 
758 PURSUIT OF REMEDIES BY A CTION, ETC. 
 
 and from three in the afternoon of all Saturdays till Monday 
 morning, the peace of God and of holy church shall be kept 
 throughout all the kingdom. The portions of time, that were not 
 included within these prohibited seasons, fell naturally into a four- 
 fold division, and, from some festival day that immediately pre- 
 ceded their commencement, were denominated the terms of St 
 Hilary, of Easter, of the holy Trinity, and of St. Michael : which 
 terms have been since regulated and abbreviated by several 
 acts of parliament. 
 
 There are in each of these terms stated days called days in 
 bank, dies in banco ; that is, days of appearance in the court of 
 common bench. They are generally at the distance of about a 
 week from each other, and have reference to some festival of the 
 church. On some one of these days in bank all original writs 
 must be made returnable ; and therefore they are generally called 
 the returns of that term. The first return in every term is, 
 properly speaking, the first day in that term. And thereon the 
 court sits to take essoigns, or excuses, for such as do not appear 
 according to the summons of the writ : wherefore this is usually 
 called the essoign day of the term. But on every return-day in 
 the term, the person summoned has three days of grace, beyond 
 the day named in the writ, in which to make his appearance ; 
 and if he appears on the fourth day inclusive, quarto die post, it 
 is sufficient. For our sturdy ancestors held it beneath the condi- 
 tion of a freeman to appear, or to do any other act, at the pre- 
 cise time appointed. 
 
 Therefore, at the beginning of each term, the court does not 
 usually sit for dispatch of business till the fourth or appearance 
 day ; and the court also sits till the quarto die post or appear- 
 ance day of the last return, which is therefore the end of each of 
 them.3 
 
 ^ A word may here be said as to the procedure of the United States Courts. It is 
 provided by Act of Congress that the " practice, pleadings, and forms and modes of 
 proceeding in civil causes (other than equity and admiralty causes) in the Circuit and 
 District Courts shall conform, as near as may be, to the practice, pleadings, and forms 
 and modes of proceeding existing at the time in like causes in the courts of record of 
 the State within which such Circuit or District Courts are held." (^Amy v. Watertamn, 
 130 U. S. 301.) So the same remedies by attachment, execution, or other process 
 may be availed of in these federal courts in common-law causes as are provided in 
 like causes by the laws of the State in which such courts are held. (U. S. Rev. St. §§ 
 914-916.) As to the practice in equity cases, seeposi, p. 843, note 3. 
 
OF PROCESS. 7i9 
 
 CHAPTER XV. 
 
 [bL. COMM. — BOOK III. CH. XIX.] 
 
 Of Process. 
 
 The next step for carrying on the suit, after suing out the 
 original, is called the process ; being the means of compelling the 
 defendant to appear in court. This is sometimes called original 
 process, being founded upon the original writ ; and also to dis- 
 tinguish it from mesne or intermediate process, which issues, 
 pending the suit, upon some collateral interlocutory matter ; as 
 to summon juries, witnesses, and the like. Mesne process is also 
 sometimes put in contradistinction to final process or process of 
 execution ; and then it signifies all such process as intervenes 
 between the beginning and end of a suit. 
 
 But process, as we are now to consider it, is the method 
 taken by the law to compel a compliance with the original writ, 
 of which the primary step is by giving the party notice to obey 
 it. This notice is given upon all redX prcscipes, and also upon all 
 personal writs for injuries not against the peace, hy summons ; 
 which is a warning to appear in court at the return of the original 
 writ, given to the defendant by two of the sheriff's messengers 
 called summoners, either in person, or left at his house or land. 
 This warning on the land is given, in real actions, by erecting 
 a white stick or wand on the defendant's grounds, and by statute 
 31 Eliz., ch. 3, the notice must also be proclaimed on some Sun- 
 day before the door of the parish church. 
 
 If the defendant disobeys this verbal monition, the next pro- 
 cess is by writ of attachment or pone, so called from the words of 
 ^^vivX," pone per vadium et salvos plegios,pMt by gage and 
 safe pledges A. B. the defendant, &c." This is a writ not issu- 
 ing out of chancery, but out of the court of common pleas, being 
 grounded on the non-appearance of the defendant at the return 
 of the original writ ; and thereby the sheriff is commanded to 
 attach him, by taking gage, that is, certain of his goods, which 
 he shall forfeit if he doth not appear ; or by making him find 
 
76c OF PROCESS. 
 
 safe fledges or sureties who shall be amerced in case of his non- 
 appearance. This is also the first and immediate process, with- 
 out any previous summons, upon actions of trespass vi et armis, 
 or for other injuries, which though not forcible are yet trespasses 
 against the peace, as deceit axiA conspiracy ; where the violence 
 of the wrong requires a more speedy remedy, and therefore the 
 original writ commands the defendant to be at once attached, 
 without any precedent warning.^ 
 
 If, after attachment, the defendant neglects to appear, he not 
 only forfeits this security, but is morever to be farther compelled by 
 writ of distringas., or distress infinite ; which is a subsequent pro- 
 cess issuing from the court of common pleas, commanding the 
 sheriff to distrain the defendant from time to time, and continual- 
 ly afterwards, by taking his goods and the profits of lands, which 
 are called issues, and which by the common law he forfeits to the 
 king if he doth not appear. But now the issues may be sold, if 
 the court shall so direct, in order to defray the reasonable cost of 
 the plaintiff. 
 
 And here by the common law the process ended in case 
 of injuries without force : the defendant, if he had any sub- 
 stance, being gradually stripped of it all by repeated distresses, 
 till he rendered obedience to the king's writ ; and, if he had 
 no substance, the law held him incapable of making satisfac- 
 tion, and therefore looked upon all further process as nugatory. 
 And besides, upon feudal principles, the person of a feudatory 
 was not liable to be attached for injuries merely civil, lest there- 
 by his lord should be deprived of his personal services. But, in 
 case of injury accompanied with force, the law, to punish the 
 breach of the peace, and prevent its disturbance for the future, 
 provided also a process against the defendant's person, in case he 
 neglected to appear upon the former process of attachment, or 
 had no substance whereby to be attached ; subjecting his body 
 to imprisonment by the writ of capias ad respondendum. But 
 this immunity of ihe defendant's person, in case of peaceable 
 though fraudulent injuries, producing great contempt of the law 
 in indigent wrongdoers, a capias was also allowed to arrest the 
 person, in actions of account, though no breach of the peace be 
 suggested, by the statutes of Marlbridge, 52 Hen. III., ch. 23, 
 
 » As to the changes subsequently introduced in the method of commencing 
 pxtions, see note 2, preceding chapter. 
 
OF PROCESS. 761 
 
 and Weslm. 2, 13 Edw. I., ch. 11, m actions of debt and detinue, 
 by statute 25 Edw. III., ch. 17, and in all actions on the case, by 
 statute 19 Hen. VII., ch. 9. Before which last statute a practice 
 had been introduced of commencing the suit by bringing an 
 original writ of trespass quare clausum fregit, for breaking the 
 plaintiff's close vi et armis ; which by the old common law sub- 
 jected the defendant's person to be arrested by writ of ca/z^j .• 
 and then afterwards, by connivance of the court, the plaintifi 
 might proceed to prosecute for any other less forcible injury. 
 This practice (through custom rather than necessity, and for 
 saving some trouble aad expense, in suing out a special original 
 adapted to the particular injury) still continues in almost all 
 cases, except in actions of debt ; though now, by virtue of the 
 statutes above cited and others, a capias might be had upon 
 almost every species of complaint. 
 
 If therefore the defendant being summoned or attached makes 
 default, and neglects to appear ; or if the sheriff returns a nihil, 
 or that the defendant hath nothing whereby he may be summoned, 
 attached, or distrained ; the capias now usually issues : being a 
 writ commanding the sheriff to take the body of the defendant if 
 he may be found in his bailiwick or county, and him safely to 
 keep, so that he may have him in court on the day of the return, 
 to answer to the plaintiff of a plea of d«bt or trespass, &c., as the 
 case may be. This writ, and all others subsequent to the original 
 writ, not issuing out of chancery but from the court into which 
 the original was returnable, and being grounded on what has 
 passed in that court in consequence of the sheriff's return, are 
 called judicial, not original writs ; they issue under the private 
 seal of that court, and not under the great .s^al of England ; and 
 are tested, not in the king's name, but in that of the chief (or, if 
 there be no chief, of the senior) justice only. And these several 
 writs being grounded on the sheriff's return, must respectively 
 bear date the same day on which the writ immediately preceding 
 was returnable.^ 
 
 ' Arrest upon mesne process is common in American practice, but is not 
 •o extended in its range of application as formerly at common law ; being 
 generally confined to particular classes of cases, specifically enumerated by 
 statute. The object of the arrest is to ensure the appearance of the de- 
 fendant, and to prevent his avoidance of the jurisdiction and authority of the 
 court. The usual grounds upon which arrest is declared permissible in the 
 •everal States are — the non-residence of the defendant, or his i.iiicipated re- 
 
762 OF PROCESS. 
 
 This is the regular and ordinary method of process. But it 
 is now usual -in practice, to sue out the capias in the first instance, 
 upon a supposed return of the sheriff ; especially if it be sus- 
 pected that the defendant, upon notice of the action, will abscond ; 
 and afterwards a fictitious original is drawn up, if the party is 
 called upon so to do, with a proper return thereupon, in order to 
 give the proceedings a color of regularity. When this capias is 
 delivered to the sheriff, he by his under-sheriff grants a warrant 
 to his inferior officers or bailiffs, to execute it on the defendant. 
 And, if the sheriff of Oxfordshire (in which county the injury is 
 supposed to have been committed and the action is laid) cannot 
 find the defendant in his jurisdiction, he returns that he is not 
 found, non est inventus, in his bailiwick : whereupon another writ 
 issues, called a testatum capias, directed to the sheriff of the county 
 where the defendant is supposed to reside, as of Berkshire, recit- 
 ing the former writ, and that it is testified, testatum est, that the 
 defendant lurks or wanders in his bailiwick, wherefore he is com 
 manded to take him, as in the . former capias. But here also, 
 when the action is brought in one county, and the defendant 
 lives- in another, it is usual, for saving trouble, time, and expense, 
 to make out a testatum capias at the first ; supposing not only an 
 original, but also a former capias, to have been granted, which in 
 fact never was. And this fiction being beneficial to all parties, 
 moval from the jurisdiction ; the concealment, removal, or wrongful disposi- 
 tion of property by the defendant to delay or defraud his creditors ; or 
 fraudulent practices of various kinds, prejudicial to the interests of creditors 
 or likely to interfere with the enforcement of their lawful claims. It is usually 
 required that affidavit be made by the plaintiff to the court that sufficient grounds 
 of arrest exist, and a good cause of action must also appear. Provision is also 
 made for admitting the defendant to bail, but if not bailed he is kept in cus- 
 tody to await the event of the suit. 
 
 There is also another form of mesne process in common use, viz., the a:- 
 lachment of the defendant's property. The object is to secure the means of sat- 
 isfying the judgment, if any be recovered against the defendant, and this is an 
 important provisional remedy when the defendant has absconded or eluded 
 process, or has attempted to conceal or dispose of his property, so that it can- 
 not be made available for the benefit of his creditors. 
 
 The most common methods, therefore, of beginning actions in the United 
 States, are by summons or equivalent process in ordinary cases ; by arrest or by 
 attachment, in special classes of cases, such as those above enumerated ; but in 
 some States a summons is used in all cases, whether process of arrest or at- 
 tachment is used with it or not. In some States, common-law actions of 
 nearly every kind may be begun by writ of attachment. In England, arrest 
 upon mesne process is now abolished, except in very few instances. 
 
OF PROCESS. 763 
 
 is readily acquiesced in and is now become the settled practice. 
 But where a defendant absconds, and the plaintiff would pro- 
 ceed to an outlawry against him, an original writ must then 
 be sued out regularly, and after that a capias. And if the sheriff 
 cannot find the defendant upon the first writ of capias, and return 
 a non est inventus, there issues out an alias writ, and after that a 
 pluries, to the same effect as the former : only after these words 
 " we command you," this clause is inserted, "as we V-av^ formerly" 
 or, " as we have often commanded you :" — " sicut alias," or " sicut 
 pluries, prcecipi7nus." And if a non est inventus is returned upon 
 aU of them, then a writ of exigent or exigi facias may be sued 
 out, which requires the sheriff to cause the defendant to be pro 
 claimed, required, or exacted in five county courts successively, 
 to render himself ; and if he does, then to take him as in a 
 CApias : but if he does not appear, and is returned quinto exactus, 
 he shall then be outlawed by the coroners of the county. Such 
 mtlawry is putting a man out of the protection of the law, so 
 that he is incapable to bring an action for redress of injuries ; and 
 it is also attended with a forfeiture of all one's goods and 
 chattels to the king. If after outlawry the defendant appears 
 |)ublicly, he may be arrested by a writ of capias utlagatum, and 
 committed till the outlawry be reversed. Which reversal may be 
 had by the defendant's appearing personally in court or by attor- 
 ney ; and any plausible cause, however slight, will in general be 
 sufficient to reverse it, it being considered only as a process to 
 compel an appearance. But then the defendant must pay full 
 costs, and put the plaintiff in the same condition as if he had 
 appeared before the writ of exigi facias was awarded.^ 
 
 Such is the first process in the court of common pleas. In 
 the kings bench they may also (and frequently do) proceed in 
 certain causes, particularly in actions of ejectment and trespass, 
 by original writ, with attachment and capias thereon, returnable, 
 not at Westminster, where the common pleas are now fixed in 
 
 ' The proceeding Dy outlawry in civil cases was finally abolished by statute 
 4a & 43 Vict. c. 59, and provision is now made by rules of court for the service 
 of process upon defendants out of the jurisdiction and for the entry of judg- 
 ment in case of their non-appearance. Outlawry in civil cases was also abol- 
 ished in the United States at an early period ; and provision is made by"statute, 
 in the several States, for the service of process in the case of absent, concealed, 
 or absconding defendants, so as to give the court jurisdiction. (See Hewit- 
 lon V. Faire, 21 Q. B. D. 6; Pennoyer v. Neff, 95 U. S. 714.) 
 
764 OF PROCESS. 
 
 consecuence of magnacarta, but " ubicunque fuerimus in Anglia^ 
 wheresoever the king shall then be in England ; the king's bench 
 being removable into any part of England at the pleasure and 
 discretion of the crown. But the more usual method of proceed- 
 ing therein is without any original, but by a peculiar species of 
 process entitled a bill of Middlesex : and therefore so entitled, 
 because the court now sits in that county ; for if it sat in Keni, 
 it would then be a bill of Kent. The bill of Middlesex (which 
 was formerly always founded on a plaint of trespass quare clausum 
 fregit, entered on the records of the court) is a kind of capias, 
 directed to the sheriff of that county, and commanding him to 
 take the defendant, and have him before our lord the king at 
 Westminster on a day prefixed, to answer to the plaintiff of a 
 plea of trespass. For this accusation of trespass it is, that gives 
 the court of king's bench jurisdiction in other civil causes, as was 
 formerly observed ; since when once the defendant is taken into 
 custody of the marshal, or prison-keeper of this court, for the 
 supposed trespass, he being then a prisoner of this court, may 
 here be prosecuted for any other species of injury. This bill of 
 Middlesex must be served on the defendant by the sheriff, if he 
 finds him in that county ; but, if he returns " nan est inventus^* 
 then there issues out a writ of latitat, to the sheriff of another 
 county, as Berks ; which is similar to the testatum capias in the 
 common pleas, and recites the bill of Middlesex and the proceed- 
 ings thereon, and that it is testified that the defendant " latitat et 
 disctirrit," lurks and wanders about in Berks ; and therefore 
 commands the sheriff to take him, and have his body in court on 
 the day of the return. But a latitat is usually sued out upon only 
 a supposed, and not an actual bill of Middlesex. So that, in fact, 
 a latitat may be called the first process in the court of king's 
 bench, as the testatum capias is in the common pleas. Yet, as in 
 the common pleas, if the defendant lives in the county wherein 
 the action is laid, a common capias suffices ; so in the king's 
 bench, likewise, if he lives in Middlesex, the process must still be 
 by bill of Middlesex only. 
 
 In the exchequer the first process is by writ of quo minus, in 
 order to give the court a jurisdiction over pleas between party 
 and party. In which writ the plaintiff is alleged to be the king's 
 farmer or debtor, and that the defendant hath done him the in- 
 jury complained of ; quo minus sufficiens existit, by which he is 
 
OF PROCESS. 765 
 
 the less able to pay the king his rent, or debt. And upon this the 
 defendant may be arrested as upon a capiasirom. the common pleas. 
 
 Thus differently do the three courts set out at first, in the 
 commencement of a suit, in order to entitle the two courts of 
 king's bench and exchequer to hold plea in causes between sub- 
 ject and subject, which by the original constitution of Westmin- 
 ster-hall they were not empowered to do. Afterwards, when the 
 cause is once drawn into the respective courts, the method of 
 pursuing it is pretty much the same in all of them. 
 
 If the sheriff has found the defendant upon any of the former 
 writs, the capias, latitat, &c., he was anciently obliged to take 
 him into custody in order to produce him in court upon the 
 return, however small and minute the cause of action might be. 
 For, not having obeyed the original summons, he had shown a 
 contempt of the court, and was no longer to be trusted at large. 
 But when the summons fell into disuse, and the capias became in 
 fact the first process, it was thought hard to imprison a man for 
 contempt which was only supposed : and therefore in common 
 cases by the gradual indulgence of the courts (at length author- 
 ized by statute), the sheriff or proper officer can now only per- 
 sonally serve the defendant with the copy of the writ or pro- 
 cess, and with notice in writing to appear by his attorney in court 
 to defend this action ; which in effect reduces it to a mere sum- 
 mons. And if the defendant thinks proper to appear upon this 
 notice, his appearance is recorded, and he puts in sureties for 
 his future attendance and obedience ; which sureties are called 
 common bail, being two imaginary persons that were pledges for 
 the plaintiff's prosecution, John Doe and Richard Roe. Or, if 
 the defendant does not appear upon the return of the writ, or 
 within four (or, in some cases, eight) days after, the plaintiff 
 may enter an appearance for him, as if he had really appeared; 
 and may file common bail in the defendant's name, and proceed 
 thereupon as if the defendant had done it himself. 
 
 But if the plaintiff will make affidavit, or assert upon oath, 
 that the cause of action amounts to ten pounds or upwards, then 
 he may arrest the defendant, and make him put in substantial 
 sureties for his appearance, called special bail. The sum sworn 
 to by the plaintiff is marked upon the back of the writ ; and the 
 sheriff, or his officer the bailiff, is then obliged actually to arrest 
 or take into custody the body of the defendant, and, having so 
 done, to return the writ with a cepi corpus endorsed thereon. 
 
766 OF PROCESS. 
 
 An arrest must be by corporal seizing or touching the defend- 
 ant's body ; after which the baihff may justify breaking open 
 the house in which he is to take him : otherwise he has no such 
 power ; but must watch his opportunity to arrest him. For every 
 man's house is looked upon by the law to be his castle of defence 
 and asylum, wherein he should suffer no violence. Which prin- 
 ciple is carried so far in the civil law, that for the most part not 
 so much as a common citation or summons, much less an arrest, 
 can be executed upon a man within his own walls. Peers of the 
 realm, members of parliament, and corporations, are privileged 
 from arrests ; and of course from outlawries. And against them 
 the process to enforce an appearance must be by summons and 
 distress infinite, instead of a capias. Also clerks, attorneys, and 
 all other persons attending the courts of justice (for attorneys, 
 being officers of the court, are always supposed to be there attend- 
 ing), are not liable to be arrested by the ordinary process of the 
 court, but must be sued by bill (called usually a bill of privilege) 
 as being personally present in court. Clergymen performing 
 divine service, and not merely staying in the church with a fraud- 
 ulent design, are for the time privileged from arrests, by stat. 
 SO Edw. III., ch. 5, and i Ric. II., ch. i6, as likewise members of 
 convocation actually attending thereon, by statute 8 Hen. VI., 
 ch. I. Suitors, witnesses, and other persons, necessarily attend- 
 ing any courts of record upon business, are not to be arrested 
 during their actual attendance, which includes their necessary 
 coming and returning. And no arrest can be made in the king's 
 presence, nor within the verge of his royal palace, nor in any 
 place where the king's justices are actually sitting.'' And, lastly, by 
 statute 29 Car. II., ch. 7, no arrest can be made, nor process served 
 upon a Sunday, except for treason, felony, or breach of the peace. 
 
 * The following classes of persons are also privileged from arrest in civil 
 cases : Foreign embassadors and the members of their household; members 
 of Congress and the State legislatures, while in attendance upon the bodies to 
 which they belong ; electors, while attending an election ; married women, in 
 certain cases, etc. The rules in regard to the arrest of parties, attorneys, 
 jurors, witnesses, etc., at court, are the same in this country as stated in the 
 text. If a privileged person be in fact arrested, he may be discharged, on 
 motion to the proper court. But in criminal cases, none of these classes ol 
 persons have the same privilege, except embassadors, and the persons of their 
 household. A civil arrest cannot be made on Sunday, nor can the doors o( 
 the defendant's dwelling be broken by the ofEcer, in order to effect the exec* 
 tion of process. But, in criminal cases, the rule is difiEerent. 
 
OF PROCESS. J67 
 
 When the defendant is regularly arrested, he must either go 
 to prison, for safe custody : or put in special bail to ^he sheriff. 
 For, the intent of the arrest being only to compel an appearance 
 in court at the return of the writ, that purpose is equally answered, 
 whether the sheriff detains his person, or takes sufficient security 
 for his appearance, called bail (from the French word bailler, to 
 deliver), because the defendant is bailed, or delivered to his 
 sureties, upon their giving security for his appearance : and is 
 supposed to continue in their friendly custody instead of going 
 to jail. The method of putting in bail to the sheriff is by 
 entering into a bond 01; obligation, with one or more sureties, not 
 fictitious persons, as in the former case of common bail, but real, 
 substantial, responsible bondsmen, to insure the defendant's ap- 
 pearance at the return of the writ ; which obligation is called the 
 hail-bond. The sheriff, if he pleases, may let the defendant go 
 without any sureties ; but that is at his own peril : for, after once 
 taking him, the sheriff is bound to keep him safely, so as to be 
 forth-coming in court ; otherwise an action lies against him for 
 an escape. But, on the other hand, he is obliged, by statute 23 
 Hen. VI., ch. 10, to take (if it be tendered) a sufficient bail- 
 bond : and by statute 12 Geo. I., ch. 29, the sheriff shall take 
 bail for no other sum than such as is sworn to by the plaintiff, 
 and endorsed on the back of the writ. 
 
 Upon the return of the writ, or within four days after, the 
 defendant must appear according to the exigency of the writ. 
 This appearance is effected by putting in and justifying bail to 
 the action ; which is commonly called putting in bail above. If 
 this be not done, and the bail that were taken by the sheriff below 
 are responsible persons, the plaintiff may take an assignment 
 from the sheriff of the bail-bond (under the statute 4 & 5 Ann., 
 ch. 16), and bring an action thereupon against the sheriff's bail. 
 But if the bail, so accepted by the sheriff, be insolvent persons, 
 the plaintiff may proceed against the sheriff himself by calling 
 upon him, first, to return the writ (if not already done), and 
 afterwards to bring in the body of the defendant. And, if the 
 sheriff does not then cause sufficient bail to be put in and per- 
 fected above, he will himself be responsible to the plaintiff. 
 
 The bail above, or bail to the action, must be put in, either in 
 open court, or before one of the judges thereof ; or else in the 
 country, before a commissioner appointed for that purpose by 
 
7C8 OF PROCESS. 
 
 virtue of the statute 4 W. & M., ch. 4, which must be trans 
 mitted to the court. These bail, who must at least be two in 
 number, must enter into a recognizance in court or before the 
 judge or commissioner, in a sum equal (or in some cases double) 
 to that which the plaintiff hath sworn to ; whereby they do jointly 
 and severally undertake, that if the defendant be condemned in 
 tlie action, he shall pay the costs and condemnation, or render 
 himself a prisoner, or that they will pay it for him : which recog- 
 nizance is transmitted to the court in a slip of parchment entitled 
 a bail-piece. And, if excepted to, the bail must he perfectedjXhaX 
 is, they must justify themselves in court, or before the commis- 
 sioner in the country, by swearing themselves housekeepers, and 
 each of them to be worth the full sum for which they are bail, 
 after payment of all their debts. Special bail may be discharged, 
 by surrendering the defendant into custody, within the time 
 allowed by law ; for which purpose they are at all times entitled 
 to a warrant to apprehend him. 
 
 Special bail is required (as of course) only upon actions of 
 debt, or actions on the case in tiover or for money due, where 
 the plaintiff can swear that the cause of action amounts to ten 
 pounds : but in actions where the damages are precarious, being to 
 be assessed ad libitum by a jury, as in actions for words, ejectment, 
 or trespass, it is very seldom possible for a plaintiff to swear to 
 the amount of his cause of action ; and therefore no special bail 
 is taken thereon, unless by a judge's order or the particular di- 
 rections of the court, in some peculiar species of injuries, as in 
 cases of mayhem or atrocious battery ; or upon such special cir- 
 cumstances as make it absolutely necessary, that the defendant 
 should be kept within the reach of justice. Also in actions 
 against heirs, executors, and administrators, for debts of the de- 
 ceased, special bail is not demandable ; for the action is not so 
 properly against them in person, as against the effects of the 
 deceased in their possession But special bail is required even 
 of them, in actions for a devastavit, or wasting the goods of the. 
 deceased ; that wrong being of their own committing. 
 
 Thus much iox process ; which is only meant to bring the de- 
 fendant into court in order to contest the suit, and abide the de- 
 termination of the law. When he appears either in person as a 
 prisoner, or out upon bail, then follow the pleadings between the 
 parties, which we shall consider at large in the next chapter. 
 
OF PLEADING. 769 
 
 CHAPTER XVI. 
 
 [bL. COMM. — BOOK III. CH. XX.l 
 
 Of Pleading. 
 
 Pleadings are the mutual altercations between the plaintiff 
 and defendant ; which at present are set down and delivered into 
 the proper office in writing, though formerly they were usually 
 put in by their counsel ore tenus, or viva voce, in court, and then 
 minuted down by the chief clerks, or prothonotaries ; whence in 
 our old law French the pleadings are frequently denominated the 
 parol. 
 
 The first of these is the declaration, narratio, or count, anciently 
 called the tale, in which the plaintiff sets forth his cause of com- 
 plaint at length, being indeed only an amplification or exposition 
 of the original writ upon which his action is founded, with the ad- 
 ditional circumstances of time and place, when and where the in- 
 jury was committed. 
 
 In local actions, where possession of land is to be recovered, 
 or damages for an actual trespass, or for waste, &c., affecting 
 land, the plaintiff must lay his declaration or declare his injury 
 to have happened in the very county and place that it really did 
 happen; hut in transitory z.ct\.or\s, ior injuries that might have 
 happened anywhere, as debt, detinue, slander, and the like, the 
 plaintiff may declare in what county he pleases, and then the 
 trial must be had in that county in which the declaration is laid. 
 Though if the defendant will make affidavit that the cause of 
 action, if any, arose not in that but in another county, the court 
 will direct a change of the venue or visne (that is, the vicinia or 
 neighborhood in which the injury is declared to be done), and 
 will oblige the plaintiff to declare in the other county ; unless 
 he will undertake to'give material evidence in the first. For the 
 statutes 6 Rich. II., ch. 2, and 4 Hen. IV., ch. 18, having ordered 
 all writs to be laid in their proper counties, this, as the judges 
 conceived, empowered them to change the venue, if required, 
 and not to insist rigidly on abating the writ : which practice 
 began in the reign of James the First.^ And this power is dis- 
 
 ' There are statutes in the various States of this country, providing for 
 
 SO 
 
770 OF PLEADING. 
 
 cretionally exercised, so as to prevent and not to cause a defect of 
 justice. Therefore the court will not change the venue to any 
 of the four northern counties, previous to the spring circuit ; be- 
 cause there the assizes are holden only once a year, at the time 
 of the summer circuit. And it will sometimes remove the venue 
 from the proper jurisdiction (especially of a narrow and limited 
 kind), upon a suggestion duly supported, that a fair and impar- 
 tial trial cannot be had therein. 
 
 It is generally usual, in actions upon the case, to set forth 
 several cases by different counts in the same declaration ; so that 
 if the plaintiff fails in the proof of one, he may succeed in another. 
 As, in an action on the case upon an assumpsit for goods sold 
 and delivered, the plaintiff usually counts or declares, first, upon 
 a settled and agreed price between him and the defendant ; as that 
 they bargained for twenty pounds : and lest he should fail in the 
 proof of this, he counts likewise upon a quantum valebant ; that 
 the defendant bought other goods, and agreed to pay him so 
 much as they were reasonably worth ; and then avers that they 
 were worth other twenty pounds ; and so on in three or four 
 different shapes ; and at last concludes with declaring, that the 
 defendant had refused to fulfil any of these agreements, whereby 
 he is endamaged to such a value. And if he proves the case laid 
 in any one of his counts, though he fails in the rest, he shall 
 recover proportionable damages. This declaration always con- 
 cludes with these words, " and thereupon he brings stiit" &c., 
 '* inde producit sectam, &c." By which words, suit or secta {a 
 sequendd), were anciently understood the witnesses or followers 
 of the plaintiff. For in former times the law would not put the 
 defendant to the trouble of answering the charge, till the plaintiff 
 had made out at least a probable case. But the actual production 
 of the suit, the secta or followers, is now antiquated ; and hath 
 been totally disused, at least ever since the reign of Edward the 
 Third, though the form of it still continues. 
 
 At the end of the decfaration are added also the plaintiff's 
 common pledges of prosecution, John Dos and Richard Roe, 
 which, as we before observed, are now mere names of form ; 
 though formerly they were of use to answer to the king for the 
 
 the change of venue, in order to secure a trial in the proper county ; to pro 
 mote the convenience of witnesses ; to obtain an impartial trial, and forothet 
 kimilar causes. 
 
OF PLEADING. 771 
 
 amercement of the plaintiff, in case he were nonsuited, barred of 
 his action, or had a verdict or judgment against him. For if the 
 plaintiff neglects to deliver a declaration for two terms after the 
 defendant appears, or is guilty of other delays or defaults against 
 the rules of law in any subsequent stage of the action, he is 
 adjudged not to follow or pursue his remedy as he ought to do, 
 and thereupon a nonsuit, or non prosequitur, is entered , and he 
 is said to be nonprossed. And for thus deserting his complaint, 
 after making a false claim or complaint {pro f also clamore sua), 
 he shall not only pay costs to the defendant, but is liable to be 
 amerced to the king. ,A retraxit differs from a nonsuit, in that 
 the one is negative, and the other positive ; the nonsuit is a mere 
 default and neglect of the plaintiff, and therefore he is allowed to 
 begin his suit again, upon payment of costs ; but a retraxit is an 
 open and voluntary renunciation of his suit, in court, and by this 
 he for ever loses his action. A discontinuance is somewhat similar 
 to a nonsuit ; for when a plaintiff leaves a chasm in the proceed- 
 ings of his cause, as by not continuing the process regularly from 
 day to day, and time to time, as he ought to do, the suit is dis- 
 continued, and the defendant is no longer bound to attend ; but 
 the plaintiff must begin again, by suing out a new original, 
 usually paying costs to his antagonist. 
 
 When the plaintiff hath stated his case in the declaration, 
 it is incumbent on the defendant within a reasonable time to 
 make his defence, and to put in a plea; else the plaintiff will 
 at once recover judgment by default, or nihil dicit, of the de- 
 fendant. 
 
 Defence, in its true legal sense, signifies not a justification, 
 protection, or guard, which is now its popular signification ; but 
 merely an opposing or denial (from the French verb defender) of 
 the truth or validity of the complaint. It is the contestatio litis 
 of the civilians : a general assertion that the plaintiff hath no 
 ground of action, which assertion is afterwards extended and 
 maintained in his plea. For it would be ridiculous to suppose 
 that the defendant comes and defends (or, in the vulgar accepta- 
 tion, justifies) the force and injury, in one line, and pleads 
 that he is not guilty of the trespass complained of, in the next. 
 And therefore in actions of dower, where the demandant doth not 
 count of any injury done, but merely demands her endowment, and 
 in assizes of land, where also there is no injury alleged, but 
 
772 OF PLEADING. 
 
 mere'y a question of right stated for the determination of the 
 recognitors or jury, the tenant makes no such defence. 
 
 After defence made, the defendant must put in his pica. But 
 before he defends, if the suit is commenced by capias or latitat 
 without any special original, he is entitled to demand one impar- 
 lance or licentia loquendi; and may, before he pleads, have more 
 time granted by consent of the court ; to see if he can end the 
 matter amicably without farther suit, by talking with the plaintiff 
 a practice, which is supposed to have arisen from a principle 
 of religion, in obedience to that precept of the gospel, "agree 
 with thine adversary quickly, whilst thou art in the way with 
 him." There are also many other previous steps which may be 
 taken by a defendant before he puts in his plea. He may, in real 
 actions, demand a view of the thing in question, in order to ascer- 
 tain its identity and other circumstances. He may crave oyer of 
 the writ, or of the bond or other specialty upon which the 
 action is brought : that is to hear it read to him ; the gene- 
 rality of defendants in the times of ancient simplicity being sup- 
 posed incapable to read it themselves, whereupon the whole is 
 entered verbatim upon the record, and the defendant may take 
 advantage of any condition or other part of it, not stated in the 
 plaintiff's declaration.' In real actions also the tenant may pray 
 in aid, or call for assistance of another, to help him to plead, be- 
 cause of the feebleness or imbecility of his own estate. Thus a 
 tenant for life may pray in aid of him that bath the inheritance in 
 remainder or reversion ; and an incumbent may pray in aid of 
 the patron and ordinary: that is, that they shall be joined in the 
 action, and held to defend the title. Voucher also is the calling 
 in of some person to answer the action, that hath warranted the 
 title to the tenant or defendant. This we still make use of in 
 the form of common recoveries, which are grounded on a writ of 
 entry ; a species of action that we may remember relies chiefly on 
 the weakness of the tenant's title, who therefore vouches another 
 person to warrant it. If the vouchee appears, he is made defendant 
 instead of the voucher : but, if he afterwards makes default, re- 
 
 ' There are statutes, in the several States, providing that one of the parties 
 to a suit may obtain an inspection or copy of books, papers, or documents 
 in the possession of the other party, containing evidence relating to the merits 
 ff the action or the defense. This has superseded the former practice otde' 
 manding oyer. A similar statute has been enacted in England. 
 
OF PLEADING. 773 
 
 covery shall b^ had against the original defendant ; and he shall 
 recover over an equivalent in value against the deficient vouchee. 
 
 When these proceedings are over, the defendant must then 
 put in his excuse or plea. Pleas are of two sorts ; dilatory pleas, 
 and pleas to the action. Dilatory pleas are such as tend merely 
 t6 delay or put off the suit, by questioning the propriety of the 
 remedy, rather than by denying the injury : pleas to the action 
 are such as dispute the very cause of suit. The former cannot 
 be pleaded after a general imparlance, which is an acknowledg- 
 ment of the propriety of the action. For imparlances are either 
 general of which we have before spoken, and which are granted 
 of course ; or special, with a saving of all exceptions to the writ 
 or count, which may be granted by the prothonotary ; or they 
 may be still more special, with a saving of all exceptions whatso- 
 ever, which are granted at the discretion of the court. 
 
 I. Dilatory pleas are, i. To the jurisdiction of the court : alleg- 
 ing, that it ought not to hold plea of this injury, it arising 
 in Wales or beyond sea ; or because the land in question is of 
 ancient demesne, and ought only to be demanded in the lord's 
 court, &c. 2. To the disability of the plaintiff, by reason whereof 
 lie is incapable to commence or continue the suit ; as, that he is 
 an alien enemy, outlawed, excommunicated, attainted of treason or 
 felony, under a prcemiinire, not in reruin natura (being only a 
 fictitious person), an infant, a feme-covert, or a monk professed. 
 3. In abatement, which abatement is either of the writ or the count, 
 for some defect in one of them ; as by misnaming the defendant, 
 which is called a misnomer ; giving him a wrong addition, as 
 esquire instead of knight ; or other want of form in any material 
 respect. Or, if may be, that the plaintiff is dead ; for the death 
 of either party is at once an abatement of the suit. And in 
 actions merely personal, arising ex delicto, for wrongs actually 
 done or committed by the defendant, as trespass, battery, and 
 slander, the rule is that actio personalis moritur cum persona ; and 
 it never shall be revived either by or against the executors or 
 other representatives.^ For neither the executors of the plain- 
 
 'But this maxim is not now generally held applicable to torts aflFecting property, 
 but only to mere personal torts, such as assault and battery, false imprisonment, libel, 
 etc. But if the wrong be an injury to rights of property, as trespass or conversion, u 
 right of action will exist by or against the executor or administrator of the deceased, 
 and will not be held to die with the person. {Price v. Price, 75 N. Y. 244; Cum- 
 
774 OF PLEADING. 
 
 tiff have received, nor those of the defendant have committed, in 
 their own personal capacity, any manner of wrong or injury. 
 But in actions arising ex contractu, by breach of promise and the 
 like, where the right descends to the representatives of the 
 plaintiff, and those of the defendant have assets to answer the 
 demand, though the suits shall abate by the death of the parties, 
 yet they may be revived against or by the executors : being 
 indeed rather actions against the property than the person, in 
 which the executors have now the same interest that their testator 
 had before. 
 
 These pleas to the jurisdiction, to the disability, or in abate- 
 ment, were formerly very often used as mere dilatory pleas, 
 without any foundation of truth, and calculated only for delay ; 
 but now by statute 4 & 5 Ann., ch. i6, no dilatory plea is to be 
 admitted, without affidavit made of the truth thereof, or some 
 probable matter shown to the court to induce them to believe it 
 true. And with respect to the pleas themselves, it is a rule, that 
 no exception shall be admitted against a declaration or writ, un- 
 less the defendant will in the same plea give the plaintiff a better; 
 that is, show him how it might be amended, that there may not 
 be two objections upon the same account. Neither, by statute 
 8 & 9 Wm. III., ch. 31, shall any plea in abatement be admitted 
 in any suit for partition of lands ; nor shall the same be abated 
 by reason of the death of any tenant. 
 
 All pleas to the jurisdiction conclude to the cognizance of 
 the court: praying "judgment, whether the court will have 
 further cognizance of the suit : " pleas to the disability conclude 
 to the person ; by praying " judgment, if the said A. the plaintiff 
 ought to be answered : " and pleas in abatement (when the suit 
 is by original) conclude to the writ or declaration ; by praying 
 " judgment of the writ, or declaration, and that the same may be 
 quashed," cassetur, made void, or abated ; but, if the action be 
 by bill, the plea must pray " judgment of the bill," and not of the 
 declaration ; the bill being here the original, and the declaration 
 only a copy of the bill. 
 
 mings V. Bird, 115 Mass. 346; see 83 N. Y. 595; 68 Md. 56; 46 O. St. 442.) Actiom 
 for fraud or negligence resulting in damage to property, or affecting property rights, 
 will also survive. (103 N. Y. 425; see 147 Mass. 471.) There is one important 
 case of breach of contract, in which a right of action does not survive, viz., where 
 there is a cause of action for breach of promise of marriage. ( Wade v. Kalbfieisch, 
 58 N. Y. 282; Finlay v. Ckirney, 20 Q. B. D. 494.) 
 
OF PLEADING. 
 
 77b 
 
 When these dilatory pleas are allowed, the cause is either 
 dismissed from that jurisdiction ; or the plaintiff is stayed till 
 nis disability be removed ; or he is obliged to sue out a new writ, 
 by leave obtained from the court : or to amend and new-frame 
 his declaration. But when on the other hand they are overruled 
 as frivolous, the defendant has judgment of respondeat ouster, or 
 to answer over in some better manner. It is then incumbent on 
 him to plead. 
 
 2. A plea to the action ; that is, to answer to the merits of 
 the complaint. This is done by confessing or denying it. 
 
 A confession of the whole complaint is not very usual, for 
 then the defendant would probably end the matter sooner ; or 
 not plead at all, but suffer judgment to go by default. Yet 
 sometimes, after tender and refusal of a debt, if the creditor 
 harasses his debtor with an action, it then becomes necessary 
 for the defendant to acknowledge the debt, and plead the tender ; 
 adding, that he has always been ready, tout temps prist, and still 
 is ready, uncore prist, to discharge it : for a tender by the debtor 
 and refusal by the creditor will in all cases discharge the costs, 
 but not the debt itself ; though in some particular cases the 
 creditor will totally lose his money. But frequently the defend- 
 ant confesses one part of the complaint (by a cognovit actionem 
 in respect thereof), and traverses or denies the rest : in order to 
 avoid the expense of carrying that part to a formal trial, which 
 he has no ground to litigate. A species of this sort of confession 
 is ikx, payment of money into court: which is for the most part 
 necessary upon pleading a tender, and is itself a kind of tender 
 to the plaintiff ; by paying into the hands of the proper ofificer of 
 the court as much as the defendant acknowledges to be due, 
 together with the costs hitherto incurred, in order to prevent the 
 expense of any farther proceedings. This may be done upon 
 what is called a motion ; which is an occasional application to 
 the court by the parties or their counsel, in order to obtain some 
 rule or order of court, which becomes necessary in the progress 
 of a cause ; and it is usually grounded upon sxi affidavit (the per- 
 fect tense of the verb affido), being a voluntary oath before some 
 judge or ofificer of the court, to evince the truth of certain facts, 
 upon which the motion is grounded : though no such affidavit is 
 necessary for payment of money into court. If after the money 
 paid in, the plaintiff proceeds in his suit, it is at his own peril ; 
 
l-jfi 0^ PLEADING. 
 
 for, if he does not prove more due than is so paid into court, he 
 snail be nonsuited and pay the defendant costs ; but he shall still 
 have the money so paid in, for that the defendant has acknowl- 
 edged to be his due. To this head may also be referred the 
 practice of what is called a set-off: whereby the defendant 
 acknowledges the justice of the plaintiff's demand on the one 
 hand ; but on the other sets up a demand of his own, to counter- 
 balance that of the plaintiff, either in the whole or in part : as, 
 if the plaintiff sues for ten pounds due on a note of hand, the 
 defendant may set off nine pounds due to himself for merchandise 
 sold to the plaintiff, and in case he pleads such set-off, must pay 
 the remaining balance into court. This answers very nearly to 
 th^ compensatio, or stoppage, of the civil law, and depends on the 
 statutes 2 Geo. II., ch. 22, and 8 Geo. II., ch. 24, which enact, 
 th^t where there are mutual debts between the plaintiff and 
 defendant, one debt may be set against the other, and either 
 pleaded in bar or given in evidence upon the general issue at 
 the trial ; which shall operate as payment, and extinguish so 
 much of the plaintiff's demand. 
 
 Pleas, that totally deny the cause of complaint, are either the 
 general issue, or a special plea, in bar. 
 
 I . The general issue, or general plea, is what traverses, thwarts, 
 and denies at once the whole declaration; without offering any 
 special matter whereby to evade it. As in trespass either vi et 
 armis, or on the case, noti culpabilis, not guilty ; in debt upon 
 contract, nihil debet, he owes nothing ; in debt on bond, nan est 
 factum, it is not his deed ; on an assumpsit, non assumpsit, he 
 made no such promise. Or in real actions, nul tort, no wrong 
 done ; nul disseisin, no disseizin : and in a writ of right, the raise 
 or issue is, that the tenant has more right to hold than the de- 
 mandant has to demand. These pleas are called the general issue, 
 because, by importing an absolute and general denial of what is 
 alleged in the declaration, they amount at once to an issue : by 
 which we mean a fact affirmed on one side and denied on the other. 
 
 Formerly the general issue was seldom pleaded, except when 
 the party meant wholly to deny the charge alleged against him. 
 But when he meant to distinguish away or palliate the charge, it 
 was always usual to set forth the particular facts in what is called 
 a special plea ; which was originally intended to apprise the 
 court and the adverse party of the nature and circumstances of 
 
OF PLEADING. jyj 
 
 the defence, and to keep the law and the fact iistiuct. And it is 
 an invariable rule, that every defence which cannot be thus 
 specially pleaded, may be given in evidence upon the general 
 issue at the trial. But the science of special pleading having 
 been frequently perverted to the purposes of chicane and delay, 
 the courts have of late in some instances, and the legislature in 
 many more, permitted the general issue to be pleaded, which 
 leaves every thing open, the fact, the law, and the equity of the 
 case : and have allowed special matter to be given m evidence at 
 the trial. And, though it should seem as if much confusion and 
 uncertainty would follgw from so great a relaxation of the strict- 
 ness anciently observed, yet experience has shown it to be 
 otherwise ; especially with the aid of a new trial, in case either 
 party be unfairly surprised by the other. 
 
 2. Special pleas, in bar of the plaintiff's demand, are very 
 various, according to the circumstances of the defendant's case. 
 As, in real actions, a general release or a fine, both of which may 
 destroy and bar the plaintiff's title. Or, in personal actions, an 
 accord, arbitration, conditions performed, nonage of the defend- 
 ant, or some other fact which precludes the plaintiff from his 
 action. A justification is likewise a special plea in bar ; as in 
 actions of assault and battery, son assatilt demesne, that it was 
 the plaintiff's own original assault ; in trespass, that the defend- 
 ant did the thing complained of in right of some office which 
 warranted him so to do ; or, in an action of slander, that the 
 plaintiff is really as bad a man as the defendant said he was. 
 
 Also a man may plead the statutes of limitation in bar ; or 
 the time limited by certain acts of parliament, beyond which no 
 plaintiff can lay his cause of action. By statute 21 Jac. I. ch. 16, 
 all actions of trespass, detinue, trover, replevin, account, and case 
 (except upon accounts between merchants), debt on simple con- 
 tract, or for arrears of rent, are limited to six years after the 
 cause of action commenced. The -use of these statutes of 
 limitation is to preserve the peace of the kingdom, and to 
 prevent those innumerable perjuries which might ensue, if a man 
 were allowed to bring an action for any injury committed at any 
 distance of time. Upon both these accounts the law therefore 
 holds, that " interest reipubliccB ut sit finis litium : " and upon the 
 same principle the Athenian laws in general prohibited all actions 
 where the injury was committed ^2/^ years before the complaint 
 
778 OF PLEADING. 
 
 was made. If therefore in any suit, the injui / or .ause of action 
 happened earlier than the period expressly limited by law, the 
 defendant may plead the statutes of limitations in bar : as upon an 
 assumpsit, or promise to pay money to the plaintiff, the defendant 
 may plead non assumpsit infra sex annos ; he made no such promise 
 within six years ; which is an effectual bar to the complaint. 
 
 An estoppel is likewise a special plea in bar ; which happens 
 where a man hath done some act, or executed some deed, which 
 estops or precludes him from averring any thing to the contrary. 
 As if tenant for years (who hath no freehold) levies a fine to 
 another person. Though this is void as to strangers, yet it shall 
 work as an estoppel to the cognizor : for if he afterwards brings 
 an action to recover these lands, and his fine is pleaded against 
 him, he shall thereby be estopped from saying, that he had no 
 freehold at the time, and therefore was incapable of levying it. 
 
 The conditions and qualities of a plea (which, as well as the 
 doctrine of estoppels, will also hold equally, mutatis mutandis, 
 with regard to other parts of pleading) are, I. That it be single 
 and containing only one matter ; for duplicity begets confusion. 
 But by statute 4 & s Ann., ch. 16, a man with leave of the court 
 may plead two or more distinct matters or single pleas ; as, in an 
 action of assault and battery, these three, not guilty, son assault 
 demesne, and the statute of limitations. 2. That it be direct and 
 positive, and not argumentative. 3. That it have convenient 
 certainty of time, place, and persons. 4. That it answer the 
 plaintiff's allegations in every material point. 5. That it be so 
 pleaded as to be capable of trial. 
 
 Special pleas are usually in the affirmative, sometimes in the 
 negative ; but they always advance some new fact not mentioned 
 in the declaration ; and then they must be averred to be true in 
 the common form, — " and this he is ready to verify." This is 
 not necessary in pleas of the general issue ; those always contain- 
 ing a total denial of the facts before advanced by the other party, 
 and therefore putting him upon the proof of them. 
 
 It is a rule in pleading, that no man be allowed to plead 
 specially such a plea as amounts only to the general issue, or a 
 total denial of the charge ; but in such case he shall be driven 
 to plead the general issue in terms, whereby the whole question 
 is referred to a jury. But if the defendant, in an assize or action 
 of trespass, be desirous to refer the validity of his title to the 
 
OF PLEADING. 779 
 
 court rather than the jury, he may state his title specially, and 
 at the same time give color to the plaintiff, or suppose him to 
 have an appearance or color of title, bad indeed in point of law, 
 but of which the jury are not competent judges. As if his own 
 true title be, that he claims by feoffment, with livery from A., by 
 force of which he entered on the lands in question, he cannot 
 plead this by itself, as it amounts to no more than the general 
 issue, nul tort, nul disseizin, in assize, or not guilty in an action 
 of trespass. But he may allege this specially, provided he goes 
 farther and says, that the plaintiff, claiming by color of a prior 
 deed of feoffment without livery, entered ; upon whom he entered ; 
 and may then refer himself to the judgment of the court which 
 of these two titles is the best in point of law. 
 
 When the plea of the defendant is thus put in, if it does not 
 amount to an issue or total contradiction of the declaration but 
 only evades it, the plaintiff may plead again, and reply to the 
 defendant's plea: either traversing it ; that is, totally denying it; 
 as, if on an action of debt upon bond the defendant pleads solvit 
 ad diem, that he paid the money when due, here the plaintiff in 
 his replication may totally traverse this plea, by denying that the 
 defendant paid it : or, he may allege new matter in contradiction 
 to the defendant's plea ; as when the defendant pleads no award 
 made, the plaintiff may reply and set forth an actual award, and 
 assign a breach ; or the replication may confess and avoid the 
 plea, by some new matter or distinction consistent with the plain- 
 tiff's former declaration ; as, in an action for trespassing upon 
 land whereof the plaintiff is seized, if the defendant shews a title to 
 the land by descent, and that therefore he had a right to enter, and 
 gives color to the plaintiff, the plaintiff may either traverse and 
 totally deny the fact of the descent ; or he may confess and avoid 
 it, by replying, that true it is that such descent happened, but 
 that since the descent the defendant himself demised the lands 
 to the plaintiff for term of life. To the replication the defendant 
 may rejoin, or put in an answer called a rejoinder. The plaintiff 
 may answer the rejoinder by a sur-rejoinder ; upon which the 
 defendant may rebut; and the plaintiff answer him by a sur- 
 rebutter. Which pleas, replications, rejoinders, sur-rejoinders, 
 rebutters, and sur-rebutters, answer to the exceptio, replicatio, 
 duplicatio, triplicatio, and quadruplicatio of the Roman laws. 
 
 The whole of this process is denominated the pleading ; in 
 
;8o OF PLEADING. 
 
 the several stages <A which it must be carefully observed, not to 
 depart or vary from the title or defence, which the party has once 
 insisted on. For this (which is called a departure, in pleading) 
 might occasion endless altercation. Therefore* the replication 
 must support the declaration, and the rejoinder must support the 
 plea, without departing out of it. As in the case of pleading no 
 award made, in consequence of a bond of arbitration, to which 
 the plaintiff replies, setting forth an actual award ; now the 
 defendant cannot rejoin that he hath performed this award, for 
 such rejoinder would be an entire departure from his original 
 plea, which alleged that no such award was made : therefore he 
 has now no other choice, but to traverse the fact of the replica- 
 tion, or else to demur upon the law of it. 
 
 Yet in many actions the plaintiff, who has alleged in his 
 declaration a general wrong, may in his replication, after an evasive 
 plea by the defendant, reduce that general wrong to a more par- 
 ticular certainty, by assigning the injury afresh with all its spe- 
 cific circumstances in such manner as clearly to ascertain and 
 identify it, consistently with his general complaint ; which is called 
 a new or novel assignment. As if the plaintiff in trespass declares 
 on a breach of his close in D. ; and the defendant pleads that the 
 place where the injury is said to have happened is a certain close 
 of pasture in D., which descended to him from B. his father, and 
 so is his own freehold ; the plaintiff may reply and assign another 
 close in D., specifying the abuttals and boundaries, as the real 
 place of the injury. 
 
 It hath previously been observed that duplicity in pleading 
 must be avoided. Every plea must be simple, entire, connected, 
 and confined to one single point : it must never be entangled 
 ■ with a variety of distinct independent answers to the same 
 matter ; which must require as many different replies and intro- 
 duce a multitude of issues upon one and the same dispute. For 
 this would often embarrass the jury, and sometimes the court 
 itself, and at all events would greatly enhance the expense of the 
 parties. 
 
 In any stage of the pleadings when either side advances or 
 affirms any new matter, he usually (as was said) avers it to be 
 true ; " and this he is ready to verify." On the oth(;r hand, when 
 either side- traverses or denies the facts pleaded by his antago- 
 nist, he usually tenders an issue, as it is called ; the language of 
 
OF PLEADING. 781 
 
 which is different according to the party by whom the issue is 
 tendered ; for if the traverse or denial comes from the defendant, 
 the issue is tendered in this manner, " and of this he puts himself 
 upon the country," thereby submitting himself to the judgment 
 -of his peers ; but if the traverse lies upon the plaintiff, he tenders 
 the issue, or prays the judgment of the peers against the defendant 
 m another form ; thus : " and this he prays may be inquired of 
 by the country." 
 
 But if either side (as, for instance, the defendant) pleads 
 a special negative plea ; not traversing or denying anything that 
 was before alleged, but^disclosing some new negative matter ; as 
 where the suit is on a bond, conditioned to perform an award, 
 and the defendant pleads, negatively, that no award was made, he 
 tenders no issue upon this plea ; because it does not appear 
 whether the fact will be disputed, the plaintiff not having yet 
 asserted the existence of any award ; but when the plaintiff re- 
 plies, and sets forth an actual specific award, if then the defend- 
 ant traverses the replication, and denies the making of any such 
 award, he then, and not before, tenders an issue to the plaintiff. 
 For when in the course of pleading they come to a point which 
 is affirmed on one side, and denied on the other, they are then 
 said to be at issue ; all their debates being at last contracted 
 into a single point, which must now be determined either in favor 
 of the plaintiff or of the defendant.* 
 
 *In New York, a code of civil procedure was adopted in 1848, by which 
 the common-law system of pleading was superseded by a simplified system, 
 reducing the number of pleadings, and abolishing many of the artificial, tech- 
 nical rules, by which the art of pleading was formerly rendered intricate and 
 peculiarly difficult. A number of the other States have since adopted sim- 
 ilar codes of practice. Under this new system, the first pleading by the 
 plaintiff is termed the " complaint," which answers to the former " declara- 
 tion." The first pleading of the defendant is the "answer," corresponding 
 to the " plea " of the common law ; the next pleading is the " reply," answer- 
 ing to the " replication ; " and provision is made for bringing the parties to 
 issue without a further succession of pleadings. The "answer" may con- 
 tain either a general or specific denial, (answering to the former " traverse"), 
 or an allegation of new matter constituting a defense (answering to the for- 
 mer plea in confession and avoidance), or a statement of counter-claim (sim- 
 ilar to the former set-off, and similar defenses.) These pleadings raise issues 
 oifact ; but the parties may raise an issue of law by demurrer, at various 
 stages in the progress of the pleadings. In other States, in which similar 
 codes have not been adopted, the rules and methods of the common-law have 
 been, to a considerable extent, modified by statute. 
 
782 OF ISSUE AND DEMURRER. 
 
 CHAPTER XVII. 
 
 [bL. COMM. — BOOK III. CH. XXI.] 
 
 Of Issue and Demurrer. 
 
 Issue, exitus, being the end of all the pleadings, is the fourth 
 part or stage of an action, and is either upon matter of law, 
 or matter of fact. 
 
 An issue upon matter of law is called a demurrer : and it con- 
 fesses the facts to be true, as stated by the opposite party; 
 but denies that, by the law arising upon those facts, any injury is 
 done to the plaintiff, or that the defendant has made out a 
 legitimate excuse ; according to the party which first demurs, 
 demoratur, rests or abides upon the point in question. As, if the 
 matter of the plaintiff's complaint or declaration be insufficient 
 in law, as by not assigning any sufficient trespass, then the 
 defendant demurs to the declaration : if, on the other hand, the 
 defendant's excuse or plea be invalid, as if he pleads that he com- 
 mitted the trespass by authority from a stranger, without making 
 out the stranger's right ; here the plaintiff may demur in law to 
 the plea : and so on in every other part of the proceedings, where 
 either side perceives any material objection in point of law upon 
 which he may rest his case. 
 
 The form of such demurrer is by averring the declaration or 
 plea, the replication or rejoinder, to be insufficient in law to 
 maintain the action or the defence ; and therefore praying judg- 
 ment for want of sufficient matter alleged. Sometimes demur- 
 rers are merely for want of sufficient form in the writ or declar- 
 ation. But in cases of exceptions to the form or manner of 
 pleading, the party demurring must by statute 27 Eliz., ch. 5, and 
 4 & S Ann., ch. 16, set forth the causes of his demurrer, or 
 wherein he apprehends the deficiency to consist. And upon 
 either a general, or such a special demurrer, the opposite party 
 must aver it to be sufficient, which is called a joinder in demur- 
 rer, and then the parties are at issue in point of law. Which 
 issue in law, or demurrer, the judges of the court before which 
 the action is brought must determine.' 
 
 ' Special demurrers which are objections based merely upon matter oi 
 
OF ISSUE AND DEMURRER. 783 
 
 An issue of fact is where the fact only, and not the law, is 
 disputed. And when he that denies, or traverses the fact pleaded 
 by his antagonist has tendered the issue, thus ; " and this he 
 prays may be inquired of by the country ; " or, " and of this he 
 puts himself upon the country ; " it may immediately be subjoined 
 by the other party, " and the said A. B. doth the like." Which 
 done, the issue is said to be joined, both parties having agreed to 
 rest the fate of the cause upon the truth of the fact in question. 
 And this issue of fact must, generally speaking, be determined, 
 not by the judges of the court, but by some other method ; the 
 principal of which metljods is that by the country, per pais (in 
 "Lz&w per patriuni), that is, by jury. 
 
 But here it will be proper to observe, that during the whole of 
 these proceedings from the time of the defendant's appearance 
 in obedience to the king's writ, it is necessary that both the 
 parties be kept or continued in court from day to day, till the final 
 determination of the suit. For the court can determine nothing 
 unless in the presence of both the parties, in person or by their 
 attorneys, or upon default of one of them, after his originaU 
 appearance and a time prefixed for his appearance in court again. 
 Therefore in the course of pleading, if either party neglects to 
 put in his declaration, plea, replication, rejoinder, and the like, 
 within the times allotted by the standing rules of the court, the 
 plaintiff, if the omission be his, is said to be nonsuit, or not to 
 follow and pursue his complaint, and shall lose the benefit of his 
 writ : or, if the negligence be on the side of the defendant, 
 judgment may be had against him, for such his default. And 
 after issue or demurrer joined, as well as in some of the previous 
 stages of proceeding, a day is continually given and entered 
 upon the record, for the parties to appear on from time to time, 
 as the exigence of the case may require. The giving of this day 
 is called the continuance, because thereby the proceedings are 
 continued without interruption from one adjournment to another. 
 If these continuances are omitted, the cause is thereby discon- 
 tinued, and the defendant is discharged sine die, without a day, 
 form, and not upon substantial defects, have been, in modern times, either 
 entirely abolished, or mucli limijed in importance. Ample powers of amend- 
 ment are given by statute, in order to remedy such defects or errors in 
 pleading : and they are not permitted to affect the real merits of the cause 
 by determining finally the controversy between the parties. In many Ameri- 
 can States, objection for these formal defects is now taken by motion instead 
 of by demurrer. (See 83 N. Y. 14.) 
 
784 GF ISSUE AND DEMURRER. 
 
 for this turn : for by his appearance in court he has obeyed the 
 command of the king's writ ; and, unless he be adjourned over to a 
 certain day, hQ is no longer bound to attend upon that summons , 
 but he must be warned afresh, and the whole must begin de novo. 
 Now it may sometimes happen, that after the defendant has 
 pleaded, nay, even after issue or demurrer joined, there may have 
 arisen some new matter, which it is proper for the defendant 
 to plead ; as that the plaintiff being a feme-sole, is since married, 
 or that she has given the defendant a release, and the like : here 
 if the defendant takes advantage of this new matter, as early 
 as he possibly can, viz., at the day given for his next appearance, 
 he is permitted to plead it in what is called a plea oipuis darrein 
 continuance, or since the last adjournment. For it would be un- 
 just to exclude him from the benefit of this new defence, which 
 it was not in his power to make when he pleaded the former.'' 
 But it is dangerous to rely on such a plea, without due considera- 
 tion ; for it confesses the matter which was before in dispute 
 between the parties. And it is not allowed to be put in, if any con- 
 tinuance has intervened between the arising of this fresh matter 
 and the pleading of it : for then the defendant is guilty of 
 neglect, or laches, and is supposed to rely on the merits of hi?: 
 former plea. And these pleas puis darrein continuance., when 
 brought to a demurrer in law or issue of fact, shall be determined 
 in like manner as other pleas. 
 
 We have said, that demurrers, or questions concerning the 
 sufficiency of the matters alleged in the pleadings, are to be deter- 
 mined by the judges of the court, upon solemn argument by 
 counsel on both sides, and to that end a demurrer-book is made 
 up, containing all the proceedings at length, which are afterwards 
 entered on record ■a.ViA. copies thereof cz!\&dLpaper books are delivered 
 to the judges to peruse. The record is a history of the most 
 material proceedings in the cause entered on a parchment-roll, 
 and continued down to the present time ; in which must be stated 
 the original writ and summons, all the pleadings, the declaration, 
 view or oyer prayed, the imparlances, plea, replication, rejoinder, 
 continuances, and whatever farther proceedings have been had; 
 all entered verbatim on the roll, and also the issue or demurrer, 
 and joinder therein. 
 
 2 Additional defenses of these kinds are now generally allowed to be 
 tioducedin all States, by a supplemental pleading, or an amendment of 
 original pleading. 
 
OF ISSUE AND DEMURRER. 785 
 
 These were formerly all written, as indeed all public proceed- 
 ings were, in Norman or law French, and even the arguments of 
 the counsel and decisions of the court were in the same barbarous 
 dialect. This continued till the reign of Edward III. By a 
 statute passed in the thirty-sixth year of his reign, it was enacted 
 that for the future all pleas should be pleaded, shown, defended, 
 answered, debated, and judged in the English tongue ; but be 
 entered and enrolled in Latin. This technical Latin continued 
 in use from the time of its first introduction, till the subversion 
 of our ancient constitution under Cromwell ; when, among many 
 other innovations in the law, some for the better and some for 
 the worse, the language of our records was altered and turned 
 into English. But, at the restoration of King Charles, this 
 novelty was no longer countenanced ; the practicers finding it 
 very difficult to express themselves so concisely or significantly 
 in any other language but the Latin. And thus it continued 
 without any sensible inconvenience till about the year 1730, 
 when it was again thought proper that the proceedings at law 
 should be done into English, and it was accordingly so ordered 
 by statute 4 Geo. II., ch. 26. 
 
 When the substance of the record is completed, and copies 
 are delivered to the judges, the matter of law upon which the 
 demurrer is grounded is upon solemn argument determined by 
 the court, and not by any trial by jury ; and judgment is there- 
 upon accordingly given. As, in an action of trespass, if the 
 defendant in his plea confesses the fact, but justifies it causa 
 venationis, for that he was hunting ; and to this the plaintiff 
 demurs, that is, he admits the truth of the plea, but denies the 
 justification to be legal : now, on arguing this demurrer, if the 
 court be of opinion, that a man may not justify trespass in hunt- 
 ing, they will give judgment for the plaintiff ; if they think that 
 he may, then judgment is given for the defendant. Thus is an 
 issue in law, or demurrer, disposed of. 
 
 An issue of fact takes up more form and preparation to settle 
 It ; for here the truth of the matters alleged must be solemnly 
 examined and established by proper evidence in the channel 
 prescribed by law. To which examination of facts, the name 
 of trial is usually confined, which will be treated of at large in 
 fhe succeeding chapter. 
 
 SI 
 
786 OF THE TRIAL BY JURY. 
 
 CHAPTER XVIII. 
 
 [bL. COMM. — BOOK III. CH. XXIII.] 
 
 Of the Trial by Jury. 
 
 The subject of our next inquiries will be the nature and 
 method of the trial by jury ; called also the trial per pais, or hy 
 the country : a trial that hath been used time out of mind in this 
 nation, and seems to have been coeval with, the first civil govern- 
 ment thereof.' Some authors have endeavored to trace the 
 original of juries up as high as the Britons themselves, the first 
 inhabitants of our island ; but certain it is that they were in use 
 among the earliest Saxon colonies, their institution being as- 
 cribed by Bishop Nicholson to Woden himself, their great legis- 
 lator and captain. Hence it is, that we may find traces of juries 
 in the laws of all those nations which adopted the feudal system, 
 as in Germany, France, and Italy ; who had all of them a tribunal 
 composed of twelve good men and true, " boni homines" usually 
 the vassals or tenants of the lord, being the equals or peers of 
 the parties litigant ; and, as the lord's vassals judged each other 
 in the lord's courts, so the king's vassals, or '■he lords themselves, 
 
 • The chapter immediately preceding this in the original text of Black 
 stone treats of several modes of trial, most of which have been long obsolete, 
 and has therefore been omitted in this edition. But one of these methods 
 of trial is of sufficient importance to deserve at least brief mention. This is 
 the trial by record. It is thus described by Blackstone : " This is only used 
 in one particular instance ; and that is where a matter of record is pleaded 
 in any action, as a judgment, or the like ; and the opposite party pleads 
 " nul tiel record," that there is no such matter of record existing ; upon this, 
 issue is tendered and joined in the following form : ' And this he prays 
 may be inquired of by the record, and the other doth the like ; ' and here- 
 upon the party pleading the record has a day given him to bring it in, and 
 proclamation is made in court for him to ' bring forth the record by him in 
 pleading alleged, or else he shall be condemned ; ' and on his failure, his an- 
 tagonist shall have judgment to recover. The trial, therefore, of this issue 
 is merely by the record ; for, as Sir Edward Coke observes, 'a record or en- 
 rolment is a monument of so high a nature, and importeth in itself such ab- 
 solute verity, that if it be pleaded that there is no such record, it shall not 
 receive any trial by jury or otherwise, but only by itself.' " 
 
OF THE TRIAL BY JURY. 787 
 
 judged each other in the king's court. In England we find 
 actual mention of them so early as the laws of King Ethelred, 
 and that not as a new invention, Stiernhook ascribes the inr 
 vention of the jury, which in the Teutonic language is denomi- 
 oated nembda, to Regner, king of Sweden and Denmark, who 
 was contemporary with our King Egbert. Just as we are apt to 
 impute the invention of this, and some other pieces of juridical 
 polity, to the superior genius of Alfred the Great ; to whom, on 
 account of his having done much, it is usual to attribute every- 
 thing ; and as the tradition of ancient Greece placed to the 
 account of their own Hercules whatever achievement was per- 
 formed superior to the ordinary prowess of mankind. Whereas 
 the truth seems to be, that this tribunal was universally established 
 among all the Northern nations, and so interwoven in their very 
 constitution, that the earliest accounts of the one give us also 
 some traces of the other. Its establishment, however, and use, 
 in this island, of what date soever it be, though for a time greatly 
 impaired and shaken by the introduction of the Norman trial by 
 batde, was always so highly esteemed and valued by the people, 
 that no conquest, no change of government, could ever prevail 
 to abolish it. In magna charta it is more than once insisted on 
 as the principal bulwark of our liberties ; but especially by chap- 
 ter 29, that no freeman shall be hurt in either his person or prop- 
 erty ; " nisi per legale judicium parium suorum vel per legem 
 terra'' A privilege which is couched in almost the same words 
 with that of the Emperor Conrad, two hundred years before: 
 "nemo beneficium suunt perdat, nisi secundum consueUidinem 
 antecessorum nostrorum et per judicium parium suorum." And 
 it was ever esteemed, in all countries, a privilege of the highest 
 and most beneficial nature. 
 
 With regard to the ordinary trial by jury in civil cases, I 
 shall pursue the same method in considering it, that I set out 
 with in explaining the nature of prosecuting actions in general, 
 viz., by following the order and course of the proceedings them- 
 selves, as the most clear and perspicuous way of treating it. 
 
 When therefore an issue is joined, by these words, " and this 
 the said A. prays may be inquired of by the country," or, " and 
 of this he puts himself upon the country, — and the said B does 
 the like," the court awards a writ of venire facias upon the roll 
 or record, commanding the sheriff " that he cause to come here 
 
788 OF THE TRIAL B Y JUR Y. 
 
 on such a day, twelve free and lawful men, liberos et legaUi 
 homines, of the body of his county, by whom the truth of 
 the matter may be better known, and who are neither of kin 
 to the aforesaid A., nor the aforesaid B., to recognize the truth 
 of the issue between the said parties." And such writ was 
 accordingly issued to the sheriff. 
 
 Thus the cause stands ready for a trial at the bar of the court 
 itself, for all trials were there anciently had, in actions which 
 were there first commenced ; which then never happened but in 
 matters of weight and consequence, all trifling suits being ended 
 in the court-baron, hundred, or county courts : and indeed all 
 causes of great importance or difficulty are still usually retained 
 upon motion, to be tried at the bar in the superior courts. But 
 when the usage began to bring actions of any trifling value into 
 the courts of Westminster-hall, it was found to be an intolerable 
 burthen to compel the parties, witnesses, and jurors, to come 
 from Westmoreland, perhaps, or Cornwall, to try an action of as- 
 sault at Westminster. A practice therefore very early obtained, 
 of continuing the cause from term to term, in the court above, 
 provided the justices in eyre did not previously come into the 
 county where the cause of action arose ; and if it happened that 
 they arrived there within that interval, then the cause was re- 
 moved from the jurisdiction of the justices at Westminster to 
 that of the justices in eyre. Afterwards, when the justices in 
 eyre were superseded by the modern justices of assize (who came 
 twice or thrice in the year into the several counties, ad capiendas 
 assizas, to take or try writs of assize, of mort d' ancestor, novel 
 disseizin, nuisance, and the like), a power was superadded by 
 statute Westm. 2, 13 Edw. I., ch. 30, to these justices of assize 
 to try common issues in trespass, and other less important suits, 
 with direction to return them (when tried) into the court above, 
 where alone the judgment should be given. And as only the 
 trial, and not the determination of the cause, was now intended 
 to be had in the court below, therefore the clause of nisi frius 
 was left out of the conditional continuances before mentioned, 
 and was directed by the statute to be inserted in the writs of 
 venire facias ; that is, " that the sheriff should cause the jurors 
 to come to Westminster (or wherever the king's court should be 
 held) on such a day in Easter and Michaelmas terms ; nisiprius, 
 unless before that day the justices assigned to take assizes shall 
 
OF THE TRIAL BY JURY. 789 
 
 come into his said county." By virtue of which the sheriff re- 
 turned his jurors to the court of the justices of assize, which was 
 sure to be held in the vacation before Easter and Michaelmas 
 terms : and there the trial was had. 
 
 ' An inconvenience attended this provision : principally be- 
 cause, as the sheriff made no return of the jury to the court at 
 Westminster, the parties were ignorant who they were till they 
 came upon the trial, and therefore were not ready with their 
 challenges or exceptions. For this reason, by the statute 42 
 Edw. III., ch. II, the method of trials by nisi prius was altered ; 
 and it was enacted thaf no inquests (except of assize and gaol 
 delivery) should be taken by writ of nisi prius, till after the 
 sheriff had returned the names of the jurors to the court above. 
 So that now in almost every civil cause the clause of nisi prim 
 is left out of the writ of venire facias, which is the sheriff's war- 
 rant to warn the jury ; and is inserted in- another part of the 
 proceedings, as we shall see presently. 
 
 For now the course is, to make the sheriff's venire returnable 
 on the last return of the same term wherein issue is joined, viz., 
 Hilary or Trinity terms ; which from the making up of the issues 
 therein are usually called issuable terms. And he returns the 
 names of the jurors in z.panel (a little pane, or oblong piece of 
 parchment) annexed to the writ. This jury is not summoned, 
 and therefore, not appearing at the day, must unavoidably make 
 default. For which reason a compulsive process is now award- 
 ed against the jurors, called in the common pleas a writ of habeas 
 corpora juratorum, and in the king's bench a distringas, com- 
 manding the sheriff to have their bodies or to distrain them by 
 their lands and goods, that they may appear upon the day ap- 
 pointed. The entry therefore on the roll or record is " that the 
 jury is respited, through defect of the jurors, till the first day of 
 the next term, then to appear at Westminster ; unless before 
 that time, viz., on Wednesday the fourth of March, the justices 
 of our lord the king, appointed to take assizes in that county, 
 shall have come to Oxford, that is, to the place assigned for hold- 
 ing the Msizes." And thereupon the writ commands the sheriff 
 to have their bodies at Westminster on the said first day of next 
 term, or before the said justices of assize, if before that time they 
 come to Oxford ; viz., on the fourth of March aforesaid. And, 
 as the judges are sure to come and open the circuit commissions 
 
790 OF THE TRIAL B Y JUR Y. 
 
 on the day mentioned in the writ, the sheriff returns and sum- 
 mons the jury to appear at the assizes, and there the trial is had 
 before the justices of assize and nisi prius: among whom (as 
 hath been said) are usually two of the judges of the courts of 
 Westminster, the whole kingdom being divided into six circuits 
 for this purpose. And thus we may observe that the trial of 
 common issues, at nisi prius, which was in its original only a 
 collateral incident to the original business of the justices of 
 assize, is now, by the various revolutions of practice, become 
 their principal civil employment : hardly anything remaining in 
 use of the real assizes but the name. 
 
 If the sheriff be not an indifferent person ; as if he be a party 
 in the suit, or be related by either blood or affinity to either of 
 the parties, he is not then trusted to return the jury, but the 
 venire shall be directed to the coroners, who in this, as in many 
 other instances, are the substitutes of the :sheriff, to execute 
 process when he is deemed an improper person. If any excep- 
 tion lies to the coroners, the vettire shall be directed to two 
 clerks of the court, or two persons of the. county named by the 
 court, and sworn. And these two, who are called elisors, or 
 electors, shall, indifferently name the jury, and their return is 
 final ; no challenge being allowed to their array. 
 
 When the general day of trials is iixed, the plaintiff or his 
 attorney must bring down the record to the assizes, and enter it 
 with the proper officer, in order to its being called on in course. 
 If it be not so entered, it cannot be tried ; therefore it is in the 
 plaintiff's breast to delay any trial by not carrying down the 
 record : unless the defendant, being fearful of such neglect in 
 the plaintiff, and willing to discharge himself from the action, 
 will himself undertake to bring on the trial, giving proper notice 
 to the plaintiff. Which proceeding is called the trial hy proviso; 
 by reason of the clause then inserted in the sheriff's venire, viz., 
 ''proviso, provided that if two writs come to your hands (that is, 
 one from the plaintiff and another from the defendant), you shall 
 execute only one of them." But this practice hath begun to be 
 disused, since the statute 14 Geo. II., ch. 17, which enacts, that 
 if, after issue joined, the cause is not carried down to be tried 
 according to the course of the court, the plaintiff shall be esteem- 
 ed to be non-suited, and judgment shall be given for the defend- 
 ant as in case of a non-suit. In case the plaintiff intends to try 
 
OF THE TRIAL BY JURY. 791 
 
 the cause, he is bound to give the defendant (if he lives within 
 forty miles of London) eight days' notice of trial ; and, if he 
 lives at a greater distance, then fourteen days' notice, in order to 
 prevent surprise : and if the plaintiff then changes his mind, and 
 does not countermand the notice six days before the trial, he 
 shall be liable to pay costs to the defendant for not proceeding 
 to trial, by the same last mentioned statute. The defendant, 
 however, or plaintiff, may, upon good cause shown to the court 
 above, as upon absence or sickness of a material witness, obtain 
 leave u;ion motion to defer the trial of the cause till the next 
 assizes. • 
 
 But we will now suppose all previous steps to be regularly 
 settled, and the cause to be called on in court. The record is 
 then handed to the judge, to peruse and observe the pleadings, 
 and what issues the parties are to maintain and prove, while the 
 jury is called and sworn. To this end the sheriff returns his 
 compulsive process, the writ of habeas corpora, or distringas, with 
 the panel -of jurors annexed, to the judge's officer in court. The 
 jurors contained in the panel are either special or common jurors. 
 Special\w\t% were originally introduced in trials at bar, when the 
 causes were of too great nicety for the discussion of ordinary free- 
 holders ; or where the sheriff was suspected of partiality, though 
 not upon such apparent cause as to warrant an exception to him. 
 He is in such cases, upon motion in court and a rule granted 
 thereupon, to attend the prothonotary or other proper officer 
 with his freeholder's book ; and the officer is to take indifferently 
 forty-eight of the principal freeholders in the presence of the 
 attorneys on both sides : who are each of them to strike off 
 twelve, and the remaining twenty-four are returned upon the 
 panel. By the statute 3 Geo. II., ch. 25, either party is entitled 
 upon motion to have a special jury struck upon the trial of any 
 issue, as well at the assizes as at bar ; he paying the extraordi- 
 nary expense, unless the judge will certify (in pursuance of the 
 statute 24 Geo. II., ch. 18) that the cause required such special 
 jury. 
 
 A common jury is one returned by the sheriff according to 
 the direction of the statute 3 Geo. II., ch. 25, which appoints that 
 the sheriff or officer shall not return a separate panel for every 
 separate cause, as formerly ; but one and the same panel for 
 every cause to be tried at the same assizes containing not less 
 
792 OF THE TRIAL BY JURY. 
 
 than forty-eight, nor more than seventy-two, jurors ; and that 
 their names being written on tickets, shall be put into a box or 
 glass : and when each cause is called, twelve of these persons, 
 whose names shall be first drawn out of the box, shall be sworn 
 upon the jury, unless absent, challenged, or excused : or unless 
 a previous view of the messuages, lands, or place in question, 
 shall have been thought necessary by the court : in which case 
 six or more of the jurors returned, to be agreed on by the par- 
 ties, or named by a judge or other proper officer of the court, 
 shall be appointed by special writ oihabeas corpora or distringas 
 to have the matters in question shown to them by two persons 
 named in the writ ; and then such of the jury as have had the 
 view, or so many of them as appear, shall be sworn on the in- 
 quest previous to any other jurors. These acts are well calcu- 
 lated to restrain any suspicion of partiality in the sheriff,- or any 
 tampering with the jurors when returned. 
 
 As the jurors appear, when called, they shall be sworn, unless 
 challenged by either party. Challenges are of two sorts ; chal- 
 lenges to the array, and challenges to th&polls.'^ 
 
 Challenges to the array are at once an exception to the whole 
 panel, in which the jury are arrayed or set in order by the sher- 
 iff in his return ; and they may be made upon account of par- 
 tiality or some default in the sheriff, or his under-officer who ar- 
 rayed the panel. And generally speaking, the same reasons that 
 before the awarding the venire were sufficient to have directed it 
 to the coroners or elisors, will be also sufficient to quash the ar- 
 ray, when made by a person or officer of whose partiality there 
 is any tolerable ground of suspicion. Also, though there be no 
 personal objection against the sheriff, yet if he arrays the panel 
 at the nomination, or under the direction of either party, this is 
 good cause of challenge to the array. Also, by the policy of the 
 ancient law, the jury was to come de vicineto, from the neigh- 
 borhood of the vill or place where the cause of action was laid in 
 the declaration : and therefore some of the jury were obliged to 
 be returned from the hundred in which such vill lay ; and, if none 
 were returned, the array might be challenged for defect of hun- 
 dredors. At length, this rule was entirely abolished upon all 
 
 * There are specific statutory regulations in the respective Anierican 
 States in regard to the selection and qualifications of jurors, challenges, etc' 
 The statutes of any particular State must be consulted. 
 
OF THE TRIAL b Y JUR Y. 793 
 
 civil actions, except upon penal statutes ; and upon those also 
 by the 24 Geo. II., ch. 18, the jury being now only to come df 
 corpore comitatus, from the body of the county at large, and not 
 devicineto, or from the particular neighborhood. 
 
 Challenges to the polls, in capita, are exceptions to particular 
 jurors. They are reduced to four heads by Sir Edward Coke ; 
 propter honoris respectum; propter defectum; propter affectum; and 
 propter delictum. 
 
 1. Propter honoris respectum; as if a lord of parliament be 
 empanelled on a jury, he may be challenged by either party, or he 
 may challenge himself. 
 
 2. Propter defectum ; as if a juryman be an alien born, this 
 is defect of birth ; if he be a slave or bondman, this is defect of 
 liberty, and he cannot be liber et legalis homo. Under the word 
 homo also, though a name common to both sexes, the female is 
 however excluded, propter defectum sexus : except when a widow 
 feigns herself with child, in order to exclude the next heir, and a 
 supposititious birth is suspected to be intended: then upon the 
 writ de ventre inspiciendo, a jury of women is to be empanelled to 
 try the question, whether with child or not. But the principal 
 deficiency is defect of estate, sufficient to qualify him to be 
 a juror. 
 
 3. Jurors may be challenged propter affectum, for suspicion 
 of bias or partiality. This may be either a principal challenge, 
 or to the favor. A principal challenge is such, where the cause 
 assigned carries with it prima facie evident marks of suspicion, 
 either of malice or favor ; as that a j uror is of kin to either party 
 within the ninth degree ; that he has been arbitrator on either 
 side ; that he has an interest in the cause ; that there is an action 
 depending between him and the party ; that he has taken money 
 for his verdict ; that he has formerly been a juror in the same 
 cause; that he is the party's master, servant, counsellor, steward, 
 or attorney, or of the same society or corporation with him : all 
 these are principal causes of challenge ; which, if true, cannot be 
 overruled, for jurors must be omni exceptione majores. Challenges 
 to the favor, are where the party hath no principal challenge r 
 but objects only some probable circumstances of suspicion, as 
 acquaintance and the like ; the validity of which must be left to 
 the determination of triors, whose office it is to decide whether 
 the juror be favorable or unfavorable. The triors, in case the 
 
794 OF THE TRIAL BY JURY. 
 
 first man called be challenged, are two indiffereht persons named 
 by the court; and if they try one man and find him indifferent, 
 he shall be sworn ; and then he and the two triors shall try the 
 next ; and when another is found indifferent and sworn, the two 
 triors shall be superseded, and the two first sworn on the jury 
 shall try the rest. 
 
 4. Challenges propter delictum, are for some crime or misde- 
 meanor, that affects the juror's credit and renders him infamous. 
 As for a conviction of treason, felony, perjury, or conspiracy; or 
 if for some infamous offence he hath received judgment of the 
 pillory, tumbrel, or the like ; or to be branded, whipped, or stigma- 
 tized ; or if he be outlawed or excommunicated, or hath been at- 
 tainted of false verdict, or forgery. A juror may himself be ex- 
 amined on oath of voir dire, veritatem dicere, with regard to such 
 causes of challenge as are not to his dishonor or discredit ; but 
 not with regard to any crime, or any thing which tends to his 
 disgrace or disadvantage. 
 
 Besides these challenges, which are exceptions against the 
 fitness of jurors, and whereby they may be excluded from serving, 
 there are also other causes to be made use of by the jurors them- 
 selves, which are matter of exemption ; whereby their service is 
 excused, and not excluded. As by statute West. 2, 13 Edw. I., 
 ch. 38, sick and decrepit persons, persons not commorant in the 
 county, and men above seventy years old ; and by the statute of 
 7 & 8 Wm. III., ch. 32, infants under twenty-one. This exemption 
 is also extended by divers statutes, customs, and charters, to 
 physicians and other medical persons, counsel, attorneys, officers 
 of the courts, and the like ; all of whom, if empanelled, must 
 show their special exemption. Clergymen are also usually ex- 
 cused, out of favor and respect to their function : but, if they 
 are seized of lands and tenements, they are in strictness liable to 
 be empanelled in respect of their lay-fees, unless they be in the 
 service of the king or of some bishop : " in obsequio domini regis, 
 vel alicujus episcopi." 
 
 If by means of challenges, or other cause, a sufficient number 
 of unexceptionable jurors doth not appear at the trial, either party 
 may pray a tales. A tales is a supply of suck men as are sum 
 moned upon the first panel, in order to make up the deficiency 
 For this purpose, a writ of decent tales, octo tales, and the like^ 
 was used to be issued to the sheriff at common law, and must be 
 
OF THE TRIAL BY JURY. 795 
 
 Btill so done at a trial at bar, if the jurors make default. But at 
 the assizes or nisiprius, by virtue of the statute 35 Hen. VIIL, 
 ch. 6, and other subsequent statutes, the judge is empowered at 
 the prayer of either party, to award a tales de circumstantibus, of 
 persons present in court, to be joined to the other jurors to try 
 the cause ; who are liable, however, to the same challenges as 
 the principal jurors. This is usually done, till the legal number 
 of twelve be completed ; in which patriarchal and apostolical 
 number Sir Edward Coke hath discovered abundance of mys- 
 tery. 
 
 When a sufficient niimber of persons empanelled, or tales-men, 
 appear, they are then separately sworn, well and truly to try the 
 issue between the parties, and a true verdict to give according 
 to the evidence ; and hence they are denominated the jury, 
 jurata, and jurors, sc.juratores. 
 
 The jury are now ready to hear the merits ; and, to fix their 
 attention the closer to ''he facts which they are empanelled and 
 sworn to try, the pleadings are opened to them by counsel or 
 that side which holds the affirmative of the question in issue 
 For the issue is said to lie, and proof is always first required 
 upon that side which affirms the matter in question : in which 
 our law agrees with the civil ; " ei incumbit probatio, qui dicit, 
 nonquinegat; cum per rerum naturam factum-negantis probatio 
 nidla sit.''' The opening counsel briefly informs them what has 
 been transacted in the court above ; the parties, the nature of 
 the action, the declaration, the plea, replication, and other pro- 
 ceedings, and lastly, upon what point the issue is joined, which 
 is there set down to be determined. Instead of which formerly 
 the whole record and process of the pleadings was read to them 
 in English by the court, and the matter in issue clearly explained 
 to their capacities. The nature of the case, and the evidence 
 intended to be produced, are next laid before them by counsel 
 also on the same side : and when their evidence is gone through, 
 the advocate on the other side opens the adverse case, and sup- 
 ports it by evidence ; and then the party which began is heard 
 by way of reply. 
 
 The nature of my present design will not permit me to enter 
 into the numberless niceties and distinctions of what is, or is 
 not, legal evidence to a jury. I shall only therefore select a few 
 of the general heads .and leading maxims, relative to this point, 
 
796 Of THE TRIAL BY JURY. 
 
 together with some observations on the manner of giving e\i 
 dence. 
 
 And, first, evidence signifies that which demonstrates, makes 
 clear, or ascertains the truth of the very fact or point in issue, 
 either on the one side or on the other ; and no evidence ought 
 to be admitted to any other point. Therefore upon an action of 
 debt, when the defendant denies his bond by the plea of non est 
 factum, and the issue is, whether it be the defendant's deed or 
 no ; he cannot give a release of this bond in evidence : for that 
 does not destroy the bond, and therefore does not prove the 
 issue which he has chosen to rely upon, viz. that the bond has 
 no existence. 
 
 Again ; evidence in the trial by jury is of two kinds, eithei 
 that which is given in proof, or that which the jury may receive 
 by their own private knowledge. The former or proofs (to which 
 in common speech the name of evidence is usually confined), are 
 either written, or parol, that is, by word of mouth. Written 
 proofs, or evidence, are, i. Records, and 2. Ancient deeds of 
 thirty years' standing, which prove themselves; but 3. Modern 
 deeds, and 4. Other writings, must be attested and verified by 
 parol evidence of witnesses. And the one general rule that runs 
 through all the doctrine of trials is this, that the best evidence 
 the nature of the case will admit of shall always be required, if 
 possible to be had ; but if not possible, then the best evidence 
 that can be had shall be allowed. For if it be found ihat there 
 is any better evidence existing than is produced, the "very not 
 producing it is a presumption that it would have detected some 
 falsehood that at present is concealed. Thus, in order to prove 
 a lease for years, nothing else shall be admitted but the very deed 
 of lease itself, if in being : but if that be positively proved to be 
 burnt or destroyed (not relying on any loose negative, as that it 
 cannot be found, or the like), then an attested copy may be pro- 
 duced ; or parol evidence be given of its contents. So, no 
 evidence of a discourse with another will be admitted, but the 
 man himself must be produced ; yet in some cases (as in proof 
 of any general customs, or matters of common tradition or repute), 
 the courts admit of hearsay evidence, or an account of what per- 
 sons deceased have declared in their lifetime: but such evidence 
 will not be received of any particular facts. So too, books of 
 account, or shop-books, are not allowed' of themselves to be 
 
OF THE TRIAL B Y JUR Y. 797 
 
 given in evidence for the owner ; but a servant who made the 
 entry may have recourse to them to refresh his memory ; and, 
 if such servant (who was accustomed to make those entries) be 
 dead, and his hand be proved, the book may be read in evidence : 
 for as tradesmen are often under a necessity of giving credit 
 without any note or writing, this is therefore, when accompanied 
 with such other collateral proofs of fairness and regularity, the 
 best evidence that can then be produced. However, this danger- 
 ous species of evidence is not carried so far in England as 
 abroad ; where a man's own books of accounts, by a distortion 
 of the civil law (which seems to have meant the same thing as 
 is practised with us) with the suppletory oath of the merchant, 
 amount at all times to full proof.' 
 
 With regard to parol evidence, or witnesses ; it must first be 
 remembered, that there is a process to bring them in by writ of 
 subpana ad testificandum : which commands them, laying aside 
 all pretences and excuses, to appear at the trial on pain of 100/. 
 to be forfeited to the king ; to which the statute S Eliz., ch. 9, 
 has added a penalty of 20/. to the party aggrieved, and damages 
 equivalent to the loss sustained by want of his evidence. But 
 no witness, unless his reasonable expenses be tendered him, is 
 bound to appear at all ; nor, if he appears, is he bound to give 
 evidence till such charges are actually paid him ; except he 
 resides within the bills of mortality, and is summoned to give 
 
 ' The admission of a party's own shop-books, in proof of the delivery of 
 goods therein charged, the entries having been made by his clerk, is gov- 
 erned by these principles : " The books must have been kept for the pur- 
 pose, and the entries must have been made contemporaneous with the de- 
 livery of the goods, and by the person whose duty it was, for the time being, 
 to make them. In such cases, the books are held admissible, as evidence 
 of the delivery of the goods therein charged, where the nature of the sub- 
 ject is such as not to render better evidence attainable. In the United 
 States, this principle has been carried farther, and extended to entries made 
 by the party hirnself, in his own shop-books. Though this evidence has 
 sometimes been said to be admitted, contrary to the rules of the common-law, 
 yet, in general, its admission will be found in perfect harmony with those 
 rules, the entry being admitted, where it was evidently contemporaneous 
 with the fact, and part of the res gesta, [z. «., transaction.] Being the 
 act of the party himself, it is received with greater caution ; but still it 
 may be seen and weighed by the jury.'' (Greenleaf on Evidence § 118.) In 
 some States, statutes have been passed authorizing the introduction of a 
 party's own books as evidence, under certain restrictions. (See 18 Wall. 516; 
 88 N. Y. 334; i32.Mass. 477 ; 47 Conn. 431.) 
 
798 OF THE TRIAL BY fURY. 
 
 evidence within the same. This compulsory process, is to bring 
 in unwilling witnesses, and the additional terrors of an attach- 
 ment in case of disobedience, are of excellent use in the thorough 
 investigation of truth. 
 
 All witnesses, of whatever religion or country^ that have the 
 Use of their reason, are to be received and examined, except such 
 as are infamous, or such as are interested in the event of the 
 cause.* All others are competent witnesses ; though the jury 
 from other circumstances will judge of their credibility. In- 
 famous persons are such as may be challenged as jurors, propter 
 delictum ; and therefore never shall be admitted to give evidence 
 to inform that jury, with whom they were too scandalous to 
 associate. Interested witnesses may be examined upon a voir 
 dire, if suspected to be secretly concerned in the event ; or their 
 interest may be proved in court. Which last is the only method 
 of supporting an objection to the. former class : for no man is to 
 be examined to prove his own infamy. And no counsel, attor- 
 ney, or other person, intrusted with the secrets of the cause by 
 the party himself shall be compelled, or perhaps allowed, to give 
 evidence of such conversation or matters of privacy, as came to 
 his knowledge by virtue of such trust and confidence : but he 
 may be examined as to mere matters of fact, as the execution of 
 a. deed or the like, which might have come to his knowledge 
 without being interested in the cause. 
 
 One witness (if credible) is sufficiefit evidence to a jury of 
 any single fact, though undoubtedly the concurrence of two or 
 more corroborates the proof. Yet our law considers that there 
 are many transactions to which only one person is privy ; and 
 therefore does not always demand the testimony of two, as the 
 civil law universally requires.^ 
 
 Positive proof is always required, where from the nature of 
 the case it appears it might possibly have been had. But next 
 to positive proof, circumstantial evidence or the doctrine of pre- 
 sumptions must take place ; for when the fact itself cannot be 
 
 * The disability of pecuniary interest in the event of the cause has been removed by statute in 
 England, and generally in the States of this country: and parties thus interested are declared not only 
 competent but compellable to give testimony. The credibility of such testimony is to be determined 
 by the jury in each special case. 
 
 ® It is a general rule in civil cases that no more than one witness is necessary. But in somi 
 States it is the usual practice not to grant a divorce on the uncorroborated testimony of the complain- 
 ant, or the uncorroborated confession of the defendant. (loo Mass. 150; 42 Hun, 524; 67 Cal. 24.) 
 In some other civil cases, also, corroboration is required in some States. (100 111. 385; 125 U. S. 247; 
 52 Wis. 337.) • 
 
OF THE TRIAL BY JURY. 799 
 
 demonstratively evinced, that which comes nearest to the proof 
 of the fact is the proof of such circumstances which either neces- 
 sarily or usually, attend such facts ; and these are called pre- 
 sumptions, which are only to be relied upon till the contrary be 
 actually proved. Stabitur prasumptioni donee probetur in con- 
 trarium. Violent presumption is many times equal to full 
 proof ; for there those circumstances appear, which necessarily 
 attend the fact. As if a landlord sues for rent due at Michael- 
 mas, 1754, and the tenant cannot prove the payment, but pro- 
 duces an acquittance for rent due at a subsequent time, in full 
 of all demands, this is a violent presumption of his having paid 
 the former rent, and is equivalent to full proof ; for though the 
 actual payment is not proved, yet the acquittance in full of all 
 demands is proved, which could not be without such payment ; 
 and it therefore induces so forcible a presumption, that no proof 
 shall be admitted to the contrary." 
 
 Probable presumption, arising from such circumstances as 
 usually attend the fact, hath also its due weight : as if, in a suit 
 for rent due in 1754, the tenant proves the payment of the rent 
 due in 1755 ; this will prevail to exonerate the tenant, unless it 
 be clearly shown that the rent of 1754 was retained for some 
 special reason, or that there was some fraud or mistake : for 
 otherwise it will be presumed to have been paid before that in 
 1755, as it is most usual to receive first the rents of longest 
 standing. Light, or rash, presumptions have no weight or 
 validity at all. 
 
 The oath administered to the witness is not only that 
 what he deposes shall be true, but that he shall also depose the 
 whole truth : so that he is not to conceal any part of what he 
 knows, whether interrogated particularly to that point or not. 
 And all this evidence is to be given in open court, in the pres- 
 ence of the parties, their attorneys, the counsel, and all by- 
 standers, and before the judge and jury: each party having 
 liberty to except to its competency, which exceptions are publicly 
 stated, and by the judge are openly and publicly allowed or 
 disallowed, in the face of the country : which must curb any 
 secret bias or partiality that might arise in his own breast. And 
 
 " But it is a well established rule that a receipt only amounts to an admission of payment of the 
 debt, and it may be explained or contradicted by parol evidence. (15 Johns. 478; 48N.Y.204: 59 
 N- H. S48.) A receipt in full may, however, operate as a discharge of a debt, or an accord and satis- 
 Mon. (54 Conn. 444; 56 Vt. 209; 8 N. Y. 40a.) 
 
8oo OF THE TRIAL BY JURY. 
 
 if, either in his directions or decisions, he mistakes the law by 
 ignorance, inadvertence, or design, the counsel on either side 
 may require him publicly to seal a bill of exceptions ; stating the 
 point wherein he is supposed to err : and this he is obliged to 
 seal by statute Westm. 2, 13 Ed. I., ch. 31, or, if he refuses so to 
 do, the party may have a compulsory writ against him, com- 
 manding him to seal it, if the fact alleged be truly stated : and 
 if he returns that the fact is untruly stated, when the case is 
 otherwise, an action will lie against hini for making a false return. 
 This bill of exceptions is in the nature of an appeal, examinable, 
 not in the court out of which the record issues for the trial at 
 nisi prius, but in the next immediate superior court, upon a writ 
 of error, after judgment given in the court below. But a de- 
 murrer to evidence shall be determined by the court, out of 
 which the record is sent. This happens, where a record or 
 other matter is produced in evidence, concerning the legal con- 
 sequences of which there arises a doubt in law : in which case 
 the adverse party may, if he pleases, demur to the whole evidence ; 
 which admits the truth of every fact that has been alleged, but 
 denies the sufficiency of them all in point of law to maintain or 
 overthrow the issue ; which draws the question of law from the 
 cognizance of the jury, to be decided (as it ought) by the court. 
 But neither these demurrers to evidence, nor the bills of excep- 
 tions, are at present so much in use as formerly ; since the more 
 frequent extension of the discretionary powers of the court in 
 granting a new trial, which is now very commonly had for the ■ 
 misdirection of a judge at nisi prius. 
 
 When the evidence is gone through on both sides, the judge, 
 in the presence of the parties, the counsel, and all others, sums 
 up the whole to the j ury ; omitting all superfluous circumstances, 
 observing wherein the main question and principal issue lies, 
 stating what evidence has been given to support it, with such 
 remarks as he thinks necessary for their direction, and giving 
 them his opinion in matters of law arising upon that evidence. 
 
 The jury, after the proofs are summed up, unless the case be 
 very clear, withdraw from the bar to consider of their verdict ; 
 and, in order to avoid intemperance and causeless delay, are to 
 be kept without meat, drink, fire, or candle, unless by permission 
 of the judge, till they are all unanimously agreed. If our juries 
 eat or drink at all, or have any eatables about them, without 
 
OF THE TRIAL B Y JUR Y. 801 
 
 consent of the court, and before verdict, it is finable; and if 
 they do so at his charge for whom they afterwards find, it will 
 set aside the verdict. Also if they speak with either of the 
 parties or their agents, after they are gone from the bar ; or if 
 they receive any fresh evidence in private ; or if to prevent 
 disputes they cast lots for whom they shall find ; any of these 
 circumstances will entirely vitiate the verdict. And it has been 
 held, that if the jurors do not agree in their verdict before the 
 judges are about to leave the town, though they are not to be 
 threatened or imprisoned, the judges are not bound to wait for 
 them, but may carry them round the circuit from town to town 
 in a cart.' This necessity of a total unanimity seems to be 
 pecuHar to our own constitution ; or, at least in the nembda or 
 jury of the ancient Goths, there was required (even in criminal 
 cases) only the consent of the major part ; and in case of an 
 equality, the defendant was held to be acquitted. 
 
 When they are all unanimously agreed, the jury return back 
 to the bar ; and, before they deliver their verdict, the plaintiff is 
 bound to appear in court, by himself, attorney, or counsel, in 
 order to answer the amercement to which by the old law he is 
 liable, as has been formerly mentioned, in case he fails in his 
 suit, as a punishment for his false claim. To be amerced, or a 
 mercie, is to be at the king's mercy with regard to the fine to be 
 imposed \ in misericordia domini regis pro f also clamore sua. The 
 amercement is disused, but the form still continues ; and if the 
 plaintiff does not appear, no verdict can be given, but the plain- 
 tifE is said to be nonsuit, non sequitur claniorein smim. Therefore 
 it is usual for a plaintiff, when he or his counsel perceives that 
 he has not given evidence sufficient to maintain his issue, to be 
 voluntarily nonsuited, or withdraw himself : whereupon the crier 
 is ordered to call the plaintiff: and if neither he, nor anybody 
 for him, appears, he is nonsuited, the jurors are discharged, the 
 action is at an end, and the defendant shall recover his costs. 
 The reason of this practice is, that a nonsuit is more eligible for 
 the plaintiff, than a verdict against him : for after a nonsuit, 
 which is only a default, he may commence the same suit again 
 
 ' These rules in reeard to the treatment of jurors have been to a considerable extent changed by 
 modern statutes. Such harsh measures as depriving them of food, fire, and other necessary comforts, 
 are no longer thought necessary or reasonable. (See 2 Johns. Gas. 301.) When it satisfactorily 
 appears that jurors cannot agree upon a verdict, the modern practice is to discharge them and then a 
 new trial may be had. It has been doubted in a modern English case whether jurors were ever catted 
 fr>m town to town. (6 B. & S. 143; see 120 Ind. 124; I2r Pa. St. 109.) 
 
 52 
 
802 OF THE TRIAL BY JURY. 
 
 for the same cause of action ; but after a verdict had, and judg- 
 ment consequent thereupon, he is for ever barred from attacking 
 the defendant upon the same ground of complaint. But, in case 
 the plaintiff appears, the jury by their foreman deliver in their 
 verdict. 
 
 A verdict, vere dictum, is either privy, or public. A privy 
 verdict is when the judge hath left or adjourned the court : and 
 the jury, being agreed, in order to be delivered from their con- 
 finement, obtain leave to give their verdict privily to the judge 
 out of court : which privy verdict is of no force, unless afterwards 
 affirmed by a public verdict given openly in court ; wherein the 
 jury may, if they please, vary from the privy verdict. So that 
 the privy verdict is indeed a mere nullity ; and yet it is a dan- 
 gerous practice, allowing time for the parties to tamper with the 
 jury, and therefore very seldom indulged. But the only effectual 
 and legal verdict is the public verdict : in which they openly 
 declare to have found the issue for the plaintiff, or for the de- 
 fendant ; and if for the plaintiff, they assess the damages also 
 sustained by the plaintiff, in consequence of the injury upon 
 which the action is brought. 
 
 Sometimes, if there arises in the case any difficult matter of 
 law, the jury, for the sake of better information, and to avoid the 
 danger of having their verdict attainted, will find a special verdiet ; 
 which is grounded on the statute of Westm. 2, 13 Edw. I., eh. 
 30, § 2. And herein they state the naked facts, as they find 
 them to be proved, and pray the advice of the court thereon ; 
 concluding conditionally, that if upon the whole matter the court 
 should be of opinion that the plaintiff had cause of action, they 
 then find for the plaintiff ; if otherwise, then for the defendant. 
 This is entered at length on the record and afterwards argued 
 and determined in the court at Westminster, from whence the 
 issue came to be tried. 
 
 Another method of finding a species of special verdict, is 
 when the jury find a verdict generally for the plaintiff, but sub- 
 ject nevertheless to the opinion of the judge or the court above, 
 on a special case stated by the counsel on both sides with regard 
 to a matter of law : which has this advantage over a special 
 verdict, that it is attended with much less expense, and obtains 
 a much speedier decision : the postea (of which in the next 
 chapter) being stayed in the hands of the officer of nisiprius, till 
 
OF JUDGMENT AND ITS INCIDENTS. S03 
 
 the question is determined, and the verdict is then entered for 
 the plaintiff or defendant, as the case may happen. But, as 
 nothing appears upon the record but the general verdict, the 
 parties are precluded hereby from the benefit of a writ of error, 
 if dissatisfied with the judgment of the court or judge upon the 
 point of law. Which makes it a thing to be wished, that a 
 method could be devised of either lessening the expense of spe- 
 cial verdicts, or else of entering the cause at length upon the 
 postea. But in both these instances the jury may, if they think 
 proper, take upon themselves to determine, at their own hazard, 
 the complicated question of fact and law ; and, without eithei 
 special verdict or special case, may find a verdict absolutely 
 either for the plaintiff or defendant. 
 
 When the jury have delivered in their verdict, and it is re- 
 corded in court, they are then discharged. And so ends the trial 
 by jury : a trial which, besides the other vast advantages which 
 we have occasionally observed in its progress, is also as expedi- 
 tious and cheap, as it is convenient, equitable, and certain ; for 
 a commission out of chancery, or the civil law courts, for exam- 
 ining witnesses in one cause will frequently last as long, and of 
 course be full as expensive, as the trial of a hundred issues at 
 tiisiprius : and yet the fact cannot be determined by such com- 
 missioners at all ; no, not till the depositions are published, and 
 read at the hearing of the cause in court. 
 
 CHAPTER XIX. 
 
 [bL. COMM. — BOOK III. CH. XXIV.] 
 Of judgment and its Incidents. 
 
 In the present chapter we are to consider the transactions in 
 » cause, next immediately subsequent to arguing the demurrer, 
 or trial of the issue. 
 
 If the issue be an issue of fact ; and, upon trial by any of the 
 methods mentioned in the preceding chapters, it be found 
 for either the plaintiff or defendant, or specially ; or if the plain- 
 
8o4 OF JUDGMENT AND ITS INCIDENTS. 
 
 tiff makes default, or is nonsuit ; or whatever, in short, is done 
 subsequent to the joining of issue and awarding the trial, it is 
 entered on record, and is called sijfostea. The substance of which 
 is, that postea, afterwards, the said plaintiff and defendant ap- 
 peared by their attorneys ai the place of trial ; and a jury, being 
 sworn, found such a verdict ; or, that the plaintiff, after the jury 
 sworn, made default, and did not prosecute his suit ; or, as the 
 case may happen. This is added to the roll, which is now re- 
 turned to the court from which it was sent ; and the history of 
 the cause, from the time it was carried out, is thus continued by 
 the postea. 
 
 Next follows, sixthly, the judgment of the court upon what 
 has previously passed ; both the matter of law and matter of fact 
 being now fully weighed and adjusted. Judgment may 
 however for certain causes be suspended, or finally arrested : for 
 it cannot be entered till the next term after trial had, and that 
 upon notice to the other party. So that if any defect of justice 
 happened at the trial, by surprise, inadvertence, or misconduct, 
 the party may have relief in the court above, by obtaining a new 
 trial ; or if, notwithstanding the issue of fact be regularly decided, 
 it appears that the complaint was either not actionable in itself, 
 or not made with sufficient precision and accuracy, the party may 
 supersede it by arresting or staying the judgment. 
 
 I. Causes of suspending the judgment, by granting a new trial 
 are at present wholly extrinsic, arising from matter foreign 
 to, or dehors the record. Of this sort are want of notice of trial ; 
 or any flagrant misbehavior of the party prevailing towards the 
 jury, which may have influenced their verdict ; or any gross mis- 
 behavior of the jury among themselves : also if it appears by the 
 judge's report, certified to the court, that the jury have brought 
 in a verdict without or contrary to evidence, so that he is reason- 
 ably dissatisfied therewith ; or if they have given exorbitant 
 damages ; or if the judge himself has misdirected the jury, sc 
 that they found an unjustifiable verdict : for these, and other 
 reasons of the like kind, it is the practice of the court to award a 
 new, or second, trial. But if two juries agree in the same or a 
 similar verdict, a third trial is seldom awarded : for the law will 
 not read'ly suppose, that the verdict of any one subsequent jury 
 can coui tervail the oaths of the two preceding ones. 
 
 Next '0 doing right, the great object in the administration of 
 
OF JUDGMENT AND ITS INCIDENTS. 805 
 
 public justice should be to give public satisfaction. If the vei- 
 dict be liable to many objections and doubts in the opinion of his 
 counsel, or even in the opinion of by-standers, no party would go 
 away satisfied unless he had a prospect of reviewing it. Such 
 doubts would with him be decisive ; he would arraign the deter- 
 mination as manifestly unjust ; and abhor a tribunal which he 
 imagined had done him an injury without a possibility of redress. 
 
 Granting anew trial, under proper regulations, cures all these 
 inconveniences, and at the same time preserves entire and ren- 
 ders perfect that most excellent method of decision, which is the 
 glory of the English law. A new trial is a rehearing of the cause 
 before another jury ; but with as little prejudice to either party, 
 as if it had never been heard before. No advantage is taken of 
 the former verdict on the one side, or the rule of court for award- 
 ing such second trial on the other : and the subsequent verdict, 
 though contrary to the first, imports no tittle of blame upon the 
 former jury; who, had they possessed the same lights and ad- 
 vantages, would probably have altered their own opinion. The 
 parties come better informed, the counsel better prepared, the law 
 is more fully understood, the judge is more master of the subject; 
 and nothing is now tried but the real merits of the case. 
 
 A sufficient ground must however be laid before the court, to 
 satisfy them that it is necessary to justice that the cause should 
 be farther considered. If the matter be such, as did not or could 
 not appear to the judge who presided at nisi prius, it is disclosed 
 to the court by affidavit : if it arises from what passed at the trial, 
 it is taken from the judge's information ; who usually makes a 
 special and minute report of the evidence. Counsel are heard on 
 both sides to impeach or establish the verdict, and the court give 
 their reasons at large why a new examination ought orought not 
 lo be allowed. The true import of the evidence is duly weighed, 
 false colors are taken off, and all points of law which arose at 
 the trial are upon full deliberation clearly explair ed and settled 
 
 Nor do the courts lend too easy an ear to every application 
 for a review of the former verdict. They must be satisfied, that 
 there are strong probable grounds to suppose that the merits have 
 not been fairly and fully discussed, and that the decision is not 
 agreeable to the justice and truth of the case. A new trial is not 
 granted, where the value is too inconsiderable to merit a second 
 examination. It is not granted upon nice and formal objections 
 
8o6 OF JUDGMENT AND ITS INCIDENTS. 
 
 which do not go to the real merits. It is not granted in cases 
 of stfict right or summum jus, where the rigorous exaction of ex- 
 treme legal justice is hardly reconcilable to conscience. Nor is 
 it granted where the scales of evidence hang nearly equal : that 
 which leans against the former verdict ought always very strongly 
 to preponderate. 
 
 2. Arrests of judgment arise from intrinsic causes, appearing 
 upon the face of the record. Of this kind are, first, where the 
 declaration varies totally from the original writ ; as where the 
 writ is in debt or detinue, and the plaintiff declares in an action 
 on the case for an assumpsit : for, the original writ out of chan- 
 cery being the foundation and warrant of the whole proceedings 
 in the common pleas, if the declaration does not pursue the na- 
 ture of the writ, the court's authority totally fails. Also, secondly, 
 where the verdict materially differs from the pleadings and issue 
 thereon ; as if, in an action for words, it is laid in the declara- 
 tion that the defendant said, " the plaintiff is a bankrupt ; " and 
 the verdict finds specially that he said, " the plaintiff will be a 
 bankrupt." Or, thirdly, if the case laid in the declaration is not 
 sufficient in point of law to found an action upon. And this is 
 an invariable rule with regard to arrests of judgment upon matter 
 of law, " that whatever is alleged in arrest of judgment must be 
 such matter, as would upon demurrer have been sufficient to 
 overturn the action or plea." As if, on an action for slander in 
 calling the plaintiff a Jew, the defendant denies the words, and 
 issue is joined thereon ; now, if a verdict be found for the plain- 
 tiff, that the words were actually spoken, whereby the fact is es- 
 tablished, still the defendant may move in arrest of judgment, 
 that to call a man a Jew is not actionable : and, if the court bs 
 of that opinion, the judgment shall be arrested, and never en- 
 tered for the plaintiff. But the rule will not hold e converso 
 " that everything that may be alleged as cause of demurrer will 
 be good in arrest of judgment ;" for if a declaration or plea omits 
 to state some particular circumstance, without proving of which, 
 at the trial, it is impossible to support the action or defence, this 
 omission shal be aided by a verdict. As if, in an action of tres- 
 pass, the decb -ation doth not allege that the trespass was com- 
 mitted on any ertain day ; or if the defendant justifies, by pre- 
 scribing for a r.ght of common for his cattle, and does not plead 
 that his cattle were levant and couchant on the land ; though 
 
OF JUDGMENT AND ITS INCIDENTS. 807 
 
 either of these defects might be good cause to demur to the dec- 
 laration or plea, yet if the adverse party omits to take advan- 
 tage of such omission in due time, but takes issue, and has a 
 verdict against him, these exceptions cannot after verdict be 
 moved in arrest of judgment. For the verdict ascertains those 
 facts, which before from the inaccuracy of the pleadings might be 
 dubious ; since the law will not suppose, that a jury under the in- 
 spection of a judge, would find a verdict for the plaintiff or defend- 
 ant, unless he had proved those circumstances, without which 
 his general allegation is defective. Exceptions, therefore, that 
 are moved in arrest yf judgment, must be much more material 
 and glaring than such as will maintain a demurrer : or, in other 
 words, many inaccuracies and omissions, which would be fatal, if 
 early observed, are cured by a subsequent verdict ; and not suf- 
 fered, in the last stage of a cause, to unravel the whole proceed- 
 ings. But if the thing omitted be essential to the action or de- 
 fense, as if the plaintiff does not merely state his title in a defec- 
 tive manner, but sets forth a title that is totally defective in it- 
 self, or if to an action of debt the defendant pleads not guilty, 
 instead of nil debet, these cannot be cured by a verdict for the 
 plaintiff in the first case, or for the defendant in the second. 
 
 If, by the misconduct or inadvertence of the pleaders, the 
 issue be joined on a fact totally immaterial, or insufficient to 
 determine the right, so that the court upon the finding cannot 
 know for whom judgment ought to be given ; as if, in an action on 
 the case in assumpsit against an executor, he pleads that he 
 himself (instead of the testator) made no such promise : or if, in 
 an action of debt on bond conditioned to pay money on or before 
 a certain day, the defendant pleads payment 071 the day : (which 
 issue, if found for the plaintiff, would be inconclusive, as the 
 money might have been paid before) ; in these cases the court 
 will after verdict award a repleader, quod partes replacitent ; unless 
 it appears from the whole record that nothing material can pos- 
 sibly be pleaded in any shape whatsoever, and then a repleader 
 would be fruitless. And, whenever a repleader is granted, the 
 pleadings must begin de novo at that stage of them, whether it 
 be the plea, replication, or rejoinder, &c., wherein there appears 
 to have been the first defect, or deviation from the regular 
 course. 
 
 If judgment is not by some of these means arrested within the 
 
8o8 OF JUDGMENT AND ITS INCIDENTS. 
 
 first four days of the next term after the trial, it is then to be ea 
 tered on the roll or record. Judgments are the sentence of the law, 
 pronounced by the court upon the matter contained in the record ; 
 and are of four sorts. First, where the facts are confessed by 
 the parties, and the law determined by the court ; as in case of 
 judgment upon demurrer: secondly, where the law is admitted by 
 the parties, and the facts disputed ; as in the case of judgment on a 
 verdict : thirdly, where both the fact and the law arising thereon 
 are admitted by the defendant; which is the case of judgments 
 by a confession or default : or, lastly, where the plaintiff is con- 
 vinced that either fact, or law, or both, are insufficient to support 
 his action, and therefore abandons or withdraws his prosecution ; 
 which is the case in judgments upon a nonsuit ox retraxit. 
 
 The judgment, though pronounced or awarded by the judges, 
 is not their determination or sentence, but the determination 
 and sentence of the law. It is the conclusion that naturally and 
 regularly follows from the premises of law and fact, which stands 
 thus : against him, who hath rode over my corn, I may recover 
 damages by law : but A. hath rode over my corn ; therefore I 
 shall recover damages against A. If the major proposition be 
 denied, this is a demurrer in law ; if the minor, if is then an issue 
 of fact : but if both be confessed (or determined) to be right, the 
 conclusion or judgment of the court cannot but follow. Which 
 judgment or conclusion depends not therefore on the arbitrary 
 caprice of the judge, but on the settled and invariable principles 
 of justice. The judgment, in short, is the remedy prescribed by 
 law for the redress of injuries ; and the suit or action is the 
 vehicle or means of administering it. What that remedy may 
 be, is indeed the result of deliberation and study to point out, 
 and therefore the style of the judgment is, not that it is decreed 
 or resolved by the court, for then the judgment might appear to 
 be their own ; but, " it is considered," consideratum est per 
 curiam, that the plaintiff do recover his damages, his debt, his 
 possession, and the like : which implies that the judgment is 
 none of their own ; but the act of law, pronounced and declared 
 by the court, after due deliberation and inquiry. 
 
 All these species of judgments are either interlocutory or final 
 Inter'ocutory judgments are such as are given in the middle of a 
 cause upon some plea, proceeding, or default, which is only 
 intermediate, and does not finally determine or complete the 
 
OF JUDGMENT AND ITS INCIDENTS. 809 
 
 suit. Of this nature are all judgments for the plaintiff upon 
 pleas in abatement of the suit or action : in which it is considered 
 by the court, that the defendant do answer over, respondeat 
 ouster; that is, put in a more substantial plea. It is easy to ob- 
 serve, that the judgment here given is not final, but merely 
 interlocutory ; for there are afterwards farther proceedings to be 
 had, when the defendant has put in a better answer. 
 
 But the interlocutory judgments, most usually spoken of, are 
 those incomplete judgments, whereby the rigkt of the plaintiff 
 is indeed established, but the quantum of damages sustained by 
 him is not ascertained: which is a matter that cannot be done 
 without the intervention of a jury. This can only happen where 
 the plaintiff recovers ; for, when judgment is given for the defend- 
 ant, it is always complete as well as final. And this happens, in 
 the first place, where the defendant suffers judgment to go 
 against him by default, or nihil dicit ; as if he puts in no plea at 
 all to the plaintiff's declaration ; by confession or cognovit actio- 
 nem, where he acknowledges the plaintiff's demand to be just ; 
 or by non sum informatus, when the defendant's attorney declares 
 he has no instruction to say anything in answe'r to the plaintiff, 
 or in defence of his client ; which is a species of judgment by 
 default. If these, or any of them, happen in actions where the 
 specific thing sued for is recovered, as in' actions of debt for a 
 sum certain, the judgment is absolutely complete. And therefore 
 it is very usual, in order to strengthen a creditor's security, for 
 the debtor to execute a warrant of attorney to some attorney 
 named by the creditor, empowering him to confess a judgment by 
 eitlftr of the ways just now mentioned (by nihil dicit, cognovit 
 actionem, or noti sum informatus) in an action of debt to be 
 brought by the creditor against the debtor for the specific sum 
 due : which judgment, when confessed, is absolutely complete 
 and binding ; provided the same (as is also required in all other 
 judgments) be regularly docquetted, that is, abstracted and entered 
 in a book, according to the directions of statute 4 & 5 W. & M., 
 ch. 20. But, where damages are to be recovered, a jury must be 
 called in to assess them ; unless the defendant, to save charges, 
 will confess the whole damages laid in the declaration : otherwise 
 the entry of the judgment is, "that the plaintiff ought to recover 
 his damages (indefinitely), but because the court know not what 
 damages the said plaintiff hath sustained, therefore the sheriff is 
 
8 10 OF JUDGMENT AND ITS INCIDENTS. 
 
 commanded, that by the oaths of twelve honest and lawful men 
 he inquire into the said damages, and return such inquisition into 
 court." This "proc&ss is caMed dL writ of inquiry ; m the execu- 
 tion of which the sheriff sits as judge, and tries by a jury, sub- 
 ject to nearly the same laws and conditions as the trial by jury 
 at nisi prius, what damages the plaintiff hath really sustained ; 
 and when their verdict is given, which must assess some damages, 
 the sheriff returns the inquisition, which is entered upon the roll 
 in manner of a postea ; and thereupon it is considered, that 
 the plaintiff do recover the exact sum of the damages so 
 assessed. In like manner, when a demurrer is determined for 
 the plaintiff upon an action wherein damages are recovered, 
 the judgment is also incomplete, without the aid of a writ of 
 inquiry. 
 
 Final judgments are such as at once put an end to the ac- 
 tion, by declaring that the plaintiff has either entitled himself, or 
 has not, to recover the remedy he sues for. In which case, if the 
 judgment be for the plaintiff, it is also considered that the de- 
 fendant be either amerced, for his wilful delay of justice in not 
 immediately obeying the king's writ by rendering the plaintiff his 
 due ; or be taken up, capiatur, till he pays a fine to the king for 
 the public misdemeanor which is coupled with the private injury, 
 in all cases of force, oi- falsehood in denying his own d^ed, or 
 unjustly claiming property in replevin, or of contempt in diso- 
 beying the command of the king's writ or the express prohibition 
 of any statute. But now in case of trespass, ejectment, assault, 
 and false imprisonment, it is provided by the statute 5 & 6 W. 
 & M., ch. 12, that no writ of capias shall issue for this fine#nor 
 any fine be paid : but the plaintiff shall pay 6s. Sd. to the proper 
 officer, and be allowed it against the defendant among his 
 other costs. And therefore upon such judgments in the com- 
 mon pleas they used to enter that the fine was remitted, and 
 now in both courts they take no notice of any fine or capias at 
 all. Eut if judgment be for the defendant, then in case of fraud 
 and deceit to the court, or malicious or vexatious suits, the plain- 
 tiff may also be fined ; but in most cases it is only considered, 
 that he and his pledges of prosecuting be (nominally) amerced 
 for his false claim, pro faiso clamore suo, and that the defendant 
 may go thereof without a day, eat inde sine die, that is, without 
 any further continuance or adjournment ; the king's writ com 
 
OF PROCEEDINGS IN THENA TURE OF APPEALS. 8i i 
 
 manding his attendance, being now fully satisfied, and his inno 
 cence publicly cleared. 
 
 Thus much for judgments ; to which costs are a necessary 
 appendage ; it being now as well the maxim of ours as of the civil 
 law, that " victus victori in expensis condemnandus est ; " though 
 the common law did not professedly allow any, the amercement of 
 the vanquished party being his only punishment. 
 
 Aiitr judgment is entered, execution will immediately follow, 
 unless the party condemned thinks himself unjustly aggrieved 
 by any of these proceedings, and then he has his remedy to re- 
 verse them by several^ writs in the nature of appeals, which we 
 shall consider in the succeeding chapter. 
 
 CHAPTER XX. 
 
 [BL. COMM. BOOK III. CH. XXV.] 
 
 Of Proceedings in the Nature of Appeals, 
 
 The principal method of redress for erroneous judgments in 
 the king's court of record, is by writ of error to some superior 
 ".curt of appeal. 
 
 A writ of error lies for some supposed mistake in the pro- 
 ceedings of a court of record ; for to amend errors in a base 
 court, not of record, a writ oi false judgment lies. The writ of 
 error only lies upon matter of law arising upon the face of the 
 proceedings ; so that no evidence is required to substantiate or 
 support it ; there being no method of reversing an error in the 
 determination of facts, but by an attaint, or a new trial, to cor- 
 rect the mistakes of the former verdict. 
 
 Formerly the suitors were much perplexed by writs of error 
 brought upon very slight and trivial grounds, as mis-spelling and 
 other mistakes of the clerks, all which might be amended at the 
 common law, while all the proceedings were in paper; for they 
 were then considered as oriXy fieri, and therefore suiject to the 
 control of the courts. But, when once the record was made up, 
 it was formerly held, that by the common law no amendment 
 could be permitted, unless within the very, terms in which the 
 
8 1 2 C/' PROCEEDINGS IN THE NA TURE OFAPPEA LS 
 
 Judicial act so recorded was done ; for during the term the record 
 is in the breast of the court ; but afterwards it admitted of no 
 alteration. But now the courts are become more liberal; and, 
 where justice requires it, will allow of amendments at any time 
 while the suit is depending, notwithstanding the record be made 
 up, and the term be past. For they at present consider the pro- 
 ceedings as in fieri, till judgment is given ; and therefore that, 
 till then, they have power to permit amendments by the common 
 law ; but when judgment is once given and enrolled, no amend- 
 ment is permitted in any subsequent term. Mistakes are also 
 effectually helped by the statutes of amendments and jeofails ; 
 so called, because when a pleader perceives any slip in the form 
 of his proceedings, and acknowledges such error [jeo faile), he is 
 at liberty by those statutes to amend it ; which amendment is 
 seldom actually made, but the benefit of the acts is attained by 
 the court's overlooking the exception. These statutes are many 
 in number, and the provisions in them too minute to be here 
 taken notice of, otherwise than by referring to the statutes them- 
 selves ; by which all trifling exceptions are so thoroughly guarded 
 against, that writs of error cannot now be maintained, but for 
 some material mistake assigned. 
 
 A writ of error lies from the inferior courts of record in 
 England into the king's bench, and not into the common pleas.' 
 Also from the king's bench in Ireland to the king's bench in 
 England. It likewise may be brought from the common pleas at 
 Westminster to the king's bench ; and then from the king's bench 
 the cause is removable to the House of Lords. From proceedings 
 on the law side of the exchequer a writ of error lies into the court 
 of exchequer chamber before the lord chancellor, lord treasurer, 
 and the judges of the court of king's bench and common pleas ; 
 and from thence it lies to the House of Peers. From proceedings 
 in the king's bench, in debt, detinue, covenant, account, case, eject- 
 ment, or trespass, originally begun therein by bill (except where 
 he king is party), it lies to the exchequer chamber, before the jus- 
 tices of the common pleas and barons of the exchequer ; and from 
 thence also to the House of Lords ; but where the proceedings 
 in the king's bench do not first commence therein by bill, but by 
 
 ' But the practice was afterwards changed so that eror lay from eithel 
 of the three superior courts of law to the Exchequer Chamber, and thence tc 
 tlie Ho'ise of Lords. Appeals are now taken to the Court of Appeal. 
 
OF EXECUTION. 813 
 
 original writ sued out of chancery, this takes the case out of the 
 general rule laid down by the statute ; so that the writ of error 
 then lies, without any intermediate state of appeal, directly to 
 the House of Lords, the dernier resort for the ultimate decision of 
 every civil action. Each court of appeal, in their respective 
 stages, may, upon hearing the matter of law in which the error 
 is assigned, reverse or affirm the judgment of the inferior courts, 
 but none of them are final, save only the House of Peers, to 
 whose judicial decisions all other tribunals must therefore sub- 
 mit, and conform their own. And thus much for the reversal 
 or affirmance of judgments at law, by writs in the nature of ap- 
 peals. 
 
 CHAPTER XXI. 
 
 [BL. COMM. BOOK III. CH. XXVI.J 
 
 Of Exectition. 
 
 If the regular judgment of the court, after the decision of 
 the suit, be not suspended, superseded, or reversed, by one or 
 other of the methods mentioned in the two preceding chapters 
 the next and last step is the execution of that judgment ; or put- 
 ting the sentence of the law in force. This is performed in dif- 
 ferent manners, according to the nature of the action upon which 
 it is founded, and of the judgment which is had or recovered. 
 
 If the plaintiff recovers in an action real or mixed, whereby 
 the seizin or possession of land is awarded to him, the writ of 
 execution shall be an habere facias seisinam, or writ of seizin, of 
 a freehold ; or an habere facias possessionem, or writ of possession 
 of a chattel interest. These are writs directed to the sheriff of 
 the county, commanding him to give actual possession to the 
 plaintiff of the land so recovered ; in the execution of which the 
 sheriff may take with him the fosse comitatus, or power of the 
 county ; and may justify breaking open doors, if the possession 
 be not quietly delivered. But, if it be peaceably yielded up, the 
 delivery of a twig, a turf, or the ring of the door in the name of 
 •eizin, is sufficient execution of the writ. 
 
8 14 OF EXECUTION. 
 
 In actions where the judgment is that something in special 
 be done or rendered by the defendant, then, in order to compel 
 him so to do, and to see the judgment executed, a special writ of 
 execution issues to the sheriff, according to the nature of the 
 case. As upon an assize of nuisance, or quod permittat proster- 
 nere, where one part of the judgment is quod nocumentum amove- 
 atur, a writ goes to the sheriff to abate it at the charge of the par- 
 ty, which likewise issues even in case of an indictment. Upon a 
 replevin, the writ of execution is the writ de retorno habendo. In 
 detinue, after judgment, the plaintiff shall have a distringas, to 
 compel the defendant to deliver the goods, by repeated distresses 
 of his chattels : or else a scire facias against any third person in 
 whose hands they may happen to be, to show cause why they 
 should not be delivered : and if the defendant still continues ob- 
 stinate, then (if the judgment hath been by default or on demur- 
 rer) the sheriff shall summon an inquest to ascertain the value 
 of the goods, and the plaintiff's damages ; which (being either so 
 assessed, or by the verdict in case of an issue) shall be levied on 
 the person or goods of the defendant. So that, after all, in re- 
 plevin and detinue (the only actions for recovering the specific 
 possession of personal chattels), if the wrongdoer be very per- 
 verse, he cannot be compelled to a restitution of the identical 
 thing taken or detained ; but he still has his election, to deliver 
 the goods, or their value : an imperfection in the law, that results 
 from the nature of personal property, which is easily concealed 
 or conveyed out of the reach of the justice, and not always amen- 
 able to the magistrate. 
 
 Executions in actions where money only is recovered, as a 
 debt or damages (and not any specific chattel), are of five sorts: 
 either against the body of the defendant ; or against his goods 
 and chattels ; or against his goods and the profits of his lands ; 
 or against his goods and the possession of his lands; or against 
 all three, his body, lands, and goods. 
 
 I . The first of these species of execution, is by writ of capias 
 ad satisfaciendum ; which addition distinguishes it from the for- 
 mer capias ad respondendum, which lies to compel an appearance 
 at tho beginning of a suit. And, properly speaking, this cannot 
 be sued out against any but such as were liable to be taken upon 
 the former capias. The intent of it is, to imprison the body of 
 the debtor till satisfaction be made for the debt, costs, and dam 
 
OF EXECUTION. 815 
 
 ages; it therefore doth not lie against any privileged peisons, 
 peers, or members of parl^ment, nor against executors or admin- 
 istrators, nor against such other persons as could not be origin- 
 ally held to bail. And Sir Edward Coke also gives us a singular 
 instance, where a defendant in 14 Edw. III., was discharged from 
 a capias, because he was of so advanced an age, quod pcenam im- 
 prisonamenti subire non potest. If an action be brought against 
 a husband and wife for the debt of the wife, when sole, and the 
 plaintiff recovers judgment, the capias shall issue to take both 
 husband and wife in execution : but, if the action was originally 
 brought against herself, when sole, and pending the suit she 
 marries, the capias shall be awarded against her only, and not 
 against her husband. Yet, if judgment be recovered against a 
 husband and wife for the contract, nay, even for the personal 
 misbehavior of the wife during her coverture, the capias shall 
 issue against the husband only : which is one of the many great 
 privileges of English wives. 
 
 The writ of capias ad satisfaciendum is an execution of the 
 highest nature, inasmuch as it deprives a man of his liberty, till 
 he makes the satisfaction awarded ; and therefore, when a man is 
 once taken in execution upon this writ, no other process can 
 be sued out against his lands or goods. Only by statute 21 Jac. 
 I., eh. 24, if the defendant dies, while charged in execution upon 
 this writ, the plaintiff may, after his death, sue out a new execu- 
 tion against his lands, goods, or chattels. The writ is directed to 
 the sheriff, commanding him to take the body of the defend- 
 ant and have him at Westminster on a day therein named, to 
 make the plaintiff satisfaction for his demand. And, if he does 
 not then make satisfaction, he must remain in custody till he does. 
 This writ may be sued out, as may all other executory process, 
 for costs, against a plaintiff as well as a defendant, when judg- 
 ment is had against him. 
 
 When a defendant is once in custody upon this process, he is 
 to be kept in arcta etsalva custodia ; and if he be afterwards seen 
 at large, it is an escape ; and the plaintiff may have an action 
 thereupon against the sheriff for his whole debt. For though, 
 upon arrests, and what is called mesne process, being such as 
 intervenes between the commencement and end of a suit, the 
 sheriff, till the statute 8 & 9 Wm. III., ch. 27, might have indulged 
 the defendant as he pleased, so as he produced him in court 
 
R 1 6 OF EXECUTION. 
 
 to answer the plaintiff at the return of the writ : yet, upjn a 
 taking in execution, he could never give any indulgence ; for, in 
 that case, confinement is the whole of the debtor's punishment, 
 and of the satisfaction made to the creditor. Escapes are either 
 voluntary, or negligent. Voluntary are such as are by the ex- 
 press consent of the keeper ; after which he never can re*^ake his 
 prisoner again (though the plaintiff may retake him at any 
 time,) but the sheriff must answer for the debt. Negligent escapes 
 are where the prisoner escapes without his keeper's knowledge or 
 consent ; and then upon fresh pursuit the defendant may be 
 retaken, and the sheriff shall be excused, if he has him again 
 before any action brought against himself for the escape. A res- 
 cue of a prisoner in execution, either going to gaol or in gaol, or a 
 breach of prison, will not excuse the sheriff from being guilty of 
 and answering for the escape ; for he ought to have sufficient 
 force to keep him, since he may command the power of the county. 
 
 If a capias ad satisfaciettdum is sued out, and a 7ton est inventus 
 is returned thereon, the plaintiff may sue out a process against 
 the bail, if any were given : who, we may remember, stipulated 
 in this triple alternative, that the defendant should, if condemned 
 in the suit, satisfy the plaintiff his debt and costs ; or that he 
 should surrender himself a prisoner or that they would pay it for 
 him : as therefore the two former branches of the alternative are 
 neither of them complied with, the latter must immediately take 
 place. In order to which a writ of scire facias rm.y besued;out 
 against the bail, commanding them to show cause why the plaintiff 
 should not have execution against them for his debt and damages : 
 and on such writ, if they show no sufficient cause, or the defendant 
 does not surrender himself on the day of the return, or of show- 
 ing cause (for afterwards is not sufficient), the plaintiff may have 
 judgment against the bail, and take out a writ of capias ad satis- 
 faciendum or other process of execution against them. 
 
 2. The next species of execution is against the goods and 
 chattels of the defendant , and is called a writ oi fieri facias, from, 
 the words in it where the sheriff is commanded, quod fieri facial 
 de bonis, that he cause to be made of the goods and chattels of 
 the defendant the sum or debt recovered. This lies as well 
 against privileged persons, peers, &c. as other common persons ; 
 and against executors or administrators with regard to the goods 
 of the deceased. The sheriff may not break open any outer 
 
OF EXECUTION. 817 
 
 doors, to execute either this, or the former writ : but must entei 
 peaceably ; and may then break open any inner door, belonging 
 to the defendant, in order to take the goods. And he may sell 
 the goods and chattels (even an estate for years, which is a 
 chattel real) of the defendant, till he has raised enough to satisfy 
 the judgment and costs ; first paying the landlord of the premises, 
 upon which the goods are found, the arrears of rent then due, 
 not exceeding one year's rent in the whole. If part only of the 
 debt be levied on z. fieri facias, the plaintiff may have a capias ad 
 satisfaciendum for the residue.* 
 
 3, A third species pf execution is by the -writ oi levari facias ; 
 which affects a man's goods and the profits of his lands, by com- 
 manding the sheriff to levy the plaintiff's debt on the lands and 
 goods of the defendant : whereby the sheriff may seize all his 
 goods, and receive the rents and profits of his lands, till satis- 
 faction be made to the plaintiff. Little use is now made of this 
 writ ; the remedy by elegit which takes possession of the lands 
 themselves, being much more effectual. 
 
 4. The fourth species of execution is by the writ of elegit ; 
 which is a judicial writ given by the statute Westm. 2, 13 Edw. 
 I., ch. 18, either upon a judgment for a debt, or damages ; or 
 upon the forfeiture of a recognizance taken in the king's court 
 By the common law a man could only have satisfaction of goods, 
 chattels, and the present profits of lands, by the two last men- 
 tioned writs oi fieri facias, or levari facias ; but not the posses- 
 sion of the lands themselves ; which was a natural consequence 
 of the feudal principles, which prohibited the alienation, and oi 
 course the incumbering of the fief with the debts of the owner. 
 
 ' The writs of execution commonly in use in the United States, are the 
 writ oi fieri facias (usually termed 2ifi. fa.), by which the sheriff is directed 
 to levy upon the debtor's goods nnd chattels, and the writ of capias ad sat- 
 isfaciendwn (usually termed a ca. sa.) which commands the sheriff to take 
 the defendant into custody and confine him until the judgment is satisfied. 
 In some States, special writs of execution have been established by statute ; 
 but they closely resemble, in their scope and effect, those which existed at 
 common-law, though the former technical names may have been discanled. 
 Thus, there is uniformly one form of writ issuable against the property, and 
 another-against the person. The writ of elegit is not in use in this countrj 
 except in one or two States ; but there are statutory provisions in the several 
 States providing for the levy of execution upon the debtor's real estate, 1b 
 Mse of deficiency of personal assets. 
 
 ' See antf.. page 343, note 9 
 
 S3 
 
8i8 OF EXECUTION. 
 
 And, when the restriction of alienation began to wear away, the 
 consequence still continued ; and no creditor could take the pos- 
 session of lands, but only levy the growing profits : so that if the 
 defendant aliened his lands, the plaintiff was ousted of his remedy 
 The statute therefore granted this writ (called an elegit, because 
 it is in the choice or election of the plaintiff whether he will sue 
 out this writ or one of the former), by which the defendant's 
 goods and chattels are not sold, but only appraised ; and all of 
 them (except oxen and beasts of the plough) are delivered to the 
 plaintiff, at such reasonable appraisement and price, in part of 
 satisfaction of his delDt. If the goods are not sufificient, then the 
 moiety or one half of his freehold lands, which he had at the time 
 of the judgment given, whether held in his own name, or by any 
 other in trust for him, are also to be delivered to the plaintiff; to 
 hold, till out of the rents and profits thereof the debt be levied, 
 or til! the defendant's interest be expired; as till the death of 
 the defendant, if he be tenant for life or in tail. During this 
 period the plaintiff is called tenant by elegit, of whom we spoke 
 in a former part of these Commentaries. We there observed that 
 till this statute, by the ancient common law, lands were not liable 
 to be charged with, or seized for, debts ; because by these means 
 the connection between lord and tenant might be destroyed, 
 fraudulent alienations might be made, and the services be trans- 
 ferred to be performed by a stranger ; provkied the tenant in- 
 curred a large debt, sufficient to cover the land. And therefore, 
 even by this statute, only one half was, and now is, subject to 
 execution ; that out of the remainder sufficient might be left for 
 the lord to distrain upon for his services. And upon the same 
 feudal principle, copyhold lands are at this day not liable to be 
 taken in execution upon a judgment. But, in case of a debt to 
 the king, it appears by magna ckarta, ch. 8, that it was allowed by 
 the common law for him to take possession of the lands till the 
 debt was paid. For he, being the grand superior and ultimate 
 proprietor of all landed estates, might seize the lands into his own 
 hands, if any thing was owing from the vassal ; and could 
 not be said to be defrauded of his services, when the ouster of the 
 vassal proceeded from his own command. This execution, or 
 seizing of lands by elegit, is of so high a nature, that after it the 
 body of the defendant cannot be taken : but if execution can only 
 be had of the goods, ^.ecause there are no lands, and such good'' 
 
OF EXECUTION. 8 1 9 
 
 are not sufficient to pay the debt, a capias ad satisfaciendum 
 may then be had after the elegit ; for such elegit- is in this case 
 no more in effect than a fieri facias. So that body and goods 
 may be taken in execution, or land and goods ; but not body and 
 land too, upon any judgment between subject and subject in the 
 course of the common law. But — 
 
 5. Upon some prosecutions given by statute ; as in the case 
 of recognizances or debts acknowledged on statutes-merchant, 
 or statutes-staple (pursuant to the statutes 1 3 Edw. I. de merca- 
 toribus, and 27 Edw. III., ch. 9) ; upon forfeiture of these, the 
 body, lands, and gooals may all be taken at once in execution, to 
 compel the payment of the debt. The process hereon is usually 
 called an extent, or extendi facias, because the sheriff is to cause 
 the lands, &c., to be appraised to their full extended value, be- 
 fore he delivers them to the plaintiff, that it may be certainly 
 known how soon the debt will be satisfied. 
 
 These are the methods which the law of England has pointed 
 out for the execution of judgments : and when the plaintiff's 
 demand is satisfied, either by the voluntary payment of, the 
 defendant, or by this compulsory process, or otherwise, satisfac- 
 tion ought to 1)6 entered on the record, that the defendant may 
 not be liable to be hereafter harassed a second time on the same 
 account. But all these writs of execution must be sued out 
 within a year and a day after the judgment is entered ; other- 
 wise the court concludes prima facie that the judgment is satis- 
 fied and extinct : yet however it will grant a writ of scire facias 
 in pursuance of statute Westm. 2, 13 Edw. I., ch. 45, for the 
 defendant to show cause why the judgment should not be revived, 
 and execution had against him ; to which the defendant may 
 plead such matter as he has to allege, in order to show why 
 process of execution should not be issued : or the plaintiff may 
 still bring an action of debt, founded on this dormant judgment, 
 which was the only method of revival allowed by the common law. 
 And here this part of our Commentaries, which regularly 
 treats only of redress at the common law, would natur^illy draw 
 to a conclusion. But, as the proceedings in the courts of equity 
 are very different from those at common law, and as those courts 
 are of a very general and extensive jurisdiction, it is in some 
 measure a branch of the task I have undertaken, to give the 
 shider*- some general idea of the forms of pr ctice adopted by 
 
820 PROCEEDINGS IN COURTS OF EQUITY. 
 
 those courts. These will therefore be the subject of the ensuing 
 chapter. 
 
 CHAPTER XXII. 
 
 [bL. COMM. — BOOK III. CH. XXVII.] 
 
 Of Proceedings in the Courts of Equity. 
 
 Before we enter on the proposed subject of the ensuing 
 chapter; viz. the nature and method of proceedings in the courts 
 of equity, it will be proper to recollect the observations which 
 were made in- the beginning of this book on the principal tri- 
 bunals of that kind, acknowledged by the constitution of England ; 
 and to premise a few remarks upon those particular causes, 
 wherein any of them claims and exercises s. sole jurisdiction, 
 distinct from and exclusive of the other. 
 
 I have already attempted to trace (though very concisely) the 
 history, rise, and progress, of the extraordinary court, or court 
 of equity, in chancery. The same jurisdiction is exercised, and 
 the same system of redress pursued, in the equity court of the 
 exchequer ; with a distinction however, as to some few matters, 
 peciiliar to each tribunal, and in which the other cannot inter- 
 fere.f And, first, of those peculiar to the chancery. 
 
 I. Upon the abolition of the court of wards, the care, which 
 che crown was bound to take as guardian of its infant tenants, 
 was totally extinguished in every feudal view ; but resulted to 
 the kin^ in his court of chancery, together with the general 
 protection of all other infants in the kingdom. When therefore 
 a fatherless child has no other guardian, the court of chancery 
 has a right to appoint one : and from all proceedings relative 
 thereto, an appeal lies to the House of Lords. The court of ex- 
 chequer can only appoint a guardian ad litem, to manage the 
 defence of the infant if a suit be commenced against hifn ; a 
 power which is incident to the jurisdiction of every court of jus- 
 tice : but when the interest of a minor comes before the court 
 judicially, in the progress of a cause, or upon a bill for that pur- 
 pose filed, either tribunal indiscriminately will take care of the 
 property of the infant. 
 
 t See ante, p. 638, note 4. 
 
PROCEEDINGS IN COURTS S)F EQUITY. 821 
 
 2. As to idiots and lunatics ; the king himself used fcrmerly 
 to commit the custody of them to proper committees, in every 
 particular case; but now, to avoid solicitations and the vei7 
 shadow of undue partiality, a warrant is issued by the king 
 under his royal sign manual, to the chancellor or keeper of his 
 seal, to perform this office for him : and, if he acts improperly in 
 granting such custodies, the complaint must be made to the 
 king himself in council. But the previous proceedings on the 
 commission, to inquire whether or no the party be an idiot or a 
 lunatic, are on the law side of the court of chancery, and can 
 only be redressed (if erroneous) by writ of error in the regular 
 course of law. 
 
 3. The king, as parens patrice, has the general superintend- 
 ence of all charities ; which he exercises by the keeper of his 
 conscience, the chancellor. And therefore whenever it is neces- 
 sary, the attorney-general, at the relation of some informant 
 (who is usually called the relator), files ex officio an information 
 in the court of chancery to have the charity properly established. 
 By statute also 43 Eliz., ch. 4, authority is given to the lord 
 chancellor or lord keeper, and to the chancellor of the duchy of 
 Lancaster, respectively, to grant commissions under their several 
 seals, to inquire into any abuses of charitable donations, and 
 rectify the same by decree ; which may be reviewed in the re- 
 spective courts of the several chancellors, upon exceptions taken 
 thereto. But, though this is done in the petty bag office in the 
 court of chancery, because the commission is there returned, it 
 is not a proceeding at common law, but treated as an original 
 cause in the court of equity. The evidence below is not taken 
 down in writing, and the respondent in his answer to the excep- 
 tions may allege what new matter he pleases ; upon which they 
 go to .proof, and examine witnesses in writing upon all the 
 matters in issue : and the court may decree the respondent to 
 pay all the costs, though no such authority is given by the statute. 
 And as it is thus considered as an original cause throughout, an 
 appeal lies of course from the chancellor s decree to the house of 
 peers, notwithstanding any loose opinions as to the contrary. 
 
 4. By the several statutes relating to bankrupts, a summary 
 iurisdiction is given to the chancellor, in many matters conse- 
 quential or previous to the commissions thereby directed to be 
 issued ; from wb-ch the statutes give no appeal. 
 
822 PROCEEDINGS IN COURTS OF EQUITY. 
 
 Or. the other hand, the jurisdiction of the court of chancer} 
 doth not extend to some causes, wherein rehef may be had in 
 the exchequer. No information can be brought in chancery for 
 such mistaken charities, as are given to the king by the statutes 
 for suppressing superstitious uses. Nor can chancery give any 
 relief against the king, or direct any act to be done by him, or 
 make any decree disposing of or affecting his property ; not even 
 in cases where he is a royal trustee. Such causes must be de- 
 termined in the court of exchequer, as a court of revenue ; which 
 alone has power over the king's treasure, and the officers em- 
 ployed in its management : unless where it properly belongs to 
 the duchy court of Lancaster, which hath also a similar juris- 
 diction as a court of revenue ; and, like the other, consists of 
 both a court of law and a court of equity. 
 
 In all other matters, what is said of the court of equity in 
 chancery will be equally applicable to the other courts of equity. 
 Whatever difference there may be in the forms of practice, it 
 arises from the different constitution of their officers : or, if they 
 differ in any thing more essential, one of them must certainly be 
 wrong ; for truth and justice are always uniform, and ought equally 
 to be adopted by them all. 
 
 Let us next take a brief, but comprehensive, view of the 
 general nature of equity, as now understood and practised in our 
 several courts of judicature. I have formerly touched upon it, 
 but imperfectly : it deserves a most complete explication. Yet 
 as nothing is hitherto extant, that can give a stranger a tolerable 
 idea of the courts of equity subsisting in England, as distin- 
 guished from the courts of law, the compiler of these observations 
 cannot but attempt it with diffidence : those who know their, 
 best, are too much employed to find time to write ; and those 
 who have attended but little in those courts, must be often at a 
 loss for materials. 
 
 Equity then, in its true and genuine meaning, is the soul and 
 spirit of all law : positive law is construed, and rational law is 
 made by it. In this, equity is synonymous to justice ; in that, to 
 the true sense and sound interpretation of the rule. But the 
 very terms of a court of equity, and a court of law, as contrasted 
 to each other, are apt to confound and mislead us : as if the one 
 judged without equity, and the other was not bound by any law. 
 Whereas every definition or illustration to be met with, which 
 
PROCEEDINGS IN COURTS OF EQUITY. 823 
 
 now draws a line between the two jurisdictions, by setting law 
 and equity in opposition to each other, will be found either to- 
 tally erroneous, or erroneous to a certain degree. 
 
 1. Thus in the first place it is said, that it is the business of 
 a court of equity in England to abate the rigor of the common 
 law. But no such power is contended for. Hard was the case 
 of bond-creditors whose debtor devised away his real estate ; 
 rigorous and unjust the rule, which put the devisee in a better 
 condition than the heir ; yet a court of equity had no power to 
 interpose. Hard is the common law still subsisting, that land 
 devised, or descending to the heir, shall not be liable to simple 
 contract debts of the ancestor or devisor, although the money 
 was laid out in purchasing the very land ; and that the father 
 shall never immediately succeed as heir to the real estate of the 
 son' : but a court of equity can give no relief ; though in both 
 these instances the artificial reason of the law, arising from feudal 
 prmciples has long ago entirely ceased. The like may be ob- 
 served of the descent of lands to a remote relation of the whole 
 blood, or even their escheat to the lord, in preference to the 
 owner's half brother. In all such cases of positive law, the 
 courts of equity, as well as the courts of law, must say with 
 Ulpian, "hoc qtudem perquam durum est, sed ita lex scripta est." 
 
 2. It is said, that a court of equity determines according to 
 the spirit of the rule, and not according to the strictness of the 
 letter. But so also does a court of law. Both, for instance, are 
 equally bound, and equally profess, to interpret statutes according 
 to the true intent of the legislature. In general law all cases 
 cannot be foreseen ; or, if foreseen, cannot be expressed : some 
 will arise that will fall within the meaning, though not within the 
 words, of the legislator ; and others, which may fall within the 
 letter, may be contrary to his meaning, though not expressly 
 excepted. These cases, thus out of the letter, are often said to 
 be within the equity, of an act of parliament ; and so cases 
 within the letter are frequently out of the equity. Here by 
 equity we mean nothing but the sound interpretation of the law ; 
 though the words of the law itself may be too general, too special, 
 or otherwise inaccurate (^defective. These then are the cases 
 which, as Grotius says, "lex non exacte definit, sed arbitrio boni 
 viri pennittit : " in order to find out the true sense and rceaning 
 
 ' These rules have since been changed. 
 
824 PROCEEDINGS IN COURTS OF EQUITY. 
 
 of the lawgiver, from every other topic of construction. But 
 there is not a single rule of interpreting laws, whether equitably 
 or strictly, that is not equally used by the judges in the courts 
 both of law and equity : the construction must in both be the 
 same : or, if they differ, it is only as one court of law may also 
 happen to differ from another. Each endeavors to fix and adopt 
 the true sense of the law in question ; neither can enlarge, 
 diminish, or alter, that sense in a single title. 
 
 3. Again, it hath been said, that fraud, accident, and trust, 
 are the proper and peculiar objects of a court of equity. But 
 every kind of fraud is equally cognizable, and equally adverted 
 to, in a court of law : and some frauds are cognizable only there : 
 as fraud in obtaining a devise of lands, which is always sent out 
 of the equity courts, to be there determined. Many accidents 
 are also supplied in a court of law ; as, loss of deeds, mistakes in 
 receipts or accounts, wrong payments, deaths which make it 
 impossible to perform a condition literally, and a multitude of 
 other contingencies ; and many cannot be relieved even in a 
 court of equity ; as, if by accident a recovery is ill suffered, a de- 
 vise ill executed, a contingent remainder destroyed, or a power 
 of leasing omitted in a family settlement. A technical trust, in- 
 deed, creat-ed by the limitation of a second use, was forced into 
 the courts of equity in the manner formerly mentioned ; and this 
 species of trusts, extended by inference and construction, have 
 ever since remained as a kind oi peculium in those courts. But 
 there are other trusts, which are cognizable in a court of law ; 
 as deposits, and all manner of bailments : and especially that 
 implied contract, so highly beneficial and useful, of having un- 
 dertaken to account for money received to another's use, which 
 is the ground of an action on the case almost as universally 
 remedial as a bill in equity. 
 
 4. Once more ; it has been said that a court of equity is not 
 bound by rules or precedents, but acts from the opinion of the 
 judge, founded on the circumstances of every particular case. 
 Whereas the system of our courts of equity is a labored con- 
 nected system, governed by established rules, and bound down 
 by precedents, from which they do nol^epart, although the rea- 
 son of some ol them may perhaps be liable to objection. Thus 
 the refusing a wife her dower in a trust-estate, yet allowing the 
 
PROCEEDINGS IN COURTS OF EQUITY. 825 
 
 husb-nd his curtesy f the holding the penalty of a bond to be 
 mer uy a security for the debt and interest, yet considering it 
 sometimes as the debt itself, so that the interest shall not exceed 
 that penalty; the distinguishing between a mortgage at five per 
 cent, with a clause of a reduction to four, if the interest be regu- 
 larly paid, and a mortgage at four per cent, with a clause of en- 
 largement to five, if the payment of the interest be deferred ; so 
 that the former shall be deemed a conscientious, the latter an 
 unrighteous bargain ; all these, and other cases that might be 
 instanced, are plainly rules of positive law ; supported only by 
 the reverence that is .shown, and generally very properly shown 
 to a series of former determinations ; that the rule of property 
 may be uniform and steady. Nay, sometimes a precedent is so 
 strictly followed, that a particular judgment, founded upon spe- 
 cial circumstances, gives rise to a general rule. 
 
 In short, if a court of equity in England did really act, as 
 many ingenious writers have supposed it (from theory) to do, it 
 would rise above all law, either common or statute, and be a most 
 arbitrary legislator in every particular case. No wonder they are 
 so often mistaken. Grotius, or Puffendorf, or any other of the 
 great masters of jurisprudence, would have been as little able to 
 discover, by their own light, the system of a court of equity in 
 England, as the system of a court of law ; especially, as the no- 
 tions before mentioned of the character, power, and practice of 
 a court of equity were formerly adopted and propagated (though 
 not with approbation of the thing) by our principal antiquaries 
 and lawyers ; 'Spelman, Coke, Lambard, and Selden, and even 
 the great Bacon himself. But this was in the infancy of our 
 courts of equity, before their jurisdiction was settled, and when the 
 chancellors themselves, partly from their ignorance of law (being 
 frequently bishops or statesmen), partly from ambition or lust of 
 power (encouraged by the arbitrary principles of the age they 
 lived in), but principally from the narrow and unjust decisions 
 of the courts of law, had arrogated to themselves such unlimited 
 authority, as hath totally been disclaimed by their successors for 
 now above a century past. The decrees of a court of equity 
 were then rather in the nature of awards, formed on the sudden 
 pro re nata, with more probity of intention than knowledge oi 
 
 ^ Widows are now entitled to dower in equitable estates by English law, 
 indalso in this country. (See ante, p. 315, note 10.) 
 
836 PROCEEDINGS IN COURTS OF EQUITY. 
 
 the subject, founded on no settled principles, as being never d& 
 signed, and therefore never used, for precedents. But the sys- 
 tems of jurisprudence, in our courts both of law and equity, are 
 now equally artificial systems, founded on the same principles of 
 justice and positive law ; but varied by different usages in the 
 forms and mode of their proceedings : the one being originally 
 derived (though much reformed and improved) from the feudal 
 customs, as they prevailed in different ages in the Saxon and 
 Norman judicatures ; the other (but with equal improvements) 
 from the imperial and pontifical formularies, introduced by their 
 clerical chancellors. 
 
 The suggestion indeed of every bill, to give jurisdiction to the 
 courts of equity (copied from those early times), is that the com- 
 plainant hath no remedy at the common law. But he who should 
 from thence conclude, that no case is judged of in equity where 
 there might have been relief at law, and at the same time casts his 
 eye on the extent and variety of the cases in our equity reports, 
 must think the law a dead letter indeed. The rules of property, 
 rules of evidence, and rules of interpretation in both courts are, or 
 should be, exactly the same : both ought to adopt the best, or must 
 cease to be courts of justice. Formerly some causes, which now 
 no longer exist, might occasion a different rule to be followed in 
 one court, from what was afterwards adopted in the other, as 
 founded in the nature and reason of the thing : but, the instant 
 those causes ceased, the measure of substantial justice ought to 
 have been the same in both. Thus the penalty of a bond, orig- 
 inally contrived to evade the absurdity of those ftionkish consti- 
 tutions which prohibited taking interest for money, was there- 
 fore very pardonably considered as the real debt in the courts of 
 law, when the debtor neglected to perform his agreement for the 
 return of the loan with interest ; for the judges could not, as the 
 law then stood, give judgment that the interest should be spe- 
 cifically paid. But when afterwards the taking of interest be- 
 carr 2 legal, as the necessary companion of commerce, nay after 
 the statute of 37 Hen. VIII., ch. 9, had declared the debt or 
 loan itself to be " the just and true intent " for which the ob- 
 ligation was given, their narrow-minded successors still adhered 
 wilfully and technically to the letter of the ancient precedents, 
 and refused to consider the payment of principal, interest, and 
 costs, as a full satisfaction of the bond. At the same time more 
 
PROCEEi^INGS IN COURTS OF EQUITY. 627 
 
 liberal men, who sat in the courts of equity, construed the in- 
 strument according to its " just and true intent," as merely a 
 security for the loan : in which light it was certainly understood 
 by the parties, at least after these determinations ; and therefore 
 this construction should have been universally received. So in 
 mortgages, being only a landed as the other is a personal secur- 
 ity for the money lent, the payment of principal, interest, and 
 costs, ought at any time, before judgment executed, to have 
 saved the .forfeiture in a court of law, as well as in a court of 
 equity. And the inconvenience, as well as injustice, of putting 
 different constructions in different courts upon one and the same 
 transaction, obliged the parliament at length to interfere, and to 
 direct by the statutes 4 & 5 Ann., ch. 16, and 7 Geo. II., ch. 20, 
 that, in the cases of bonds and mortgages, what had long been 
 the practice of the courts of equity should also for the future be 
 universally followed in the courts of law wherein it had before 
 tJiese statutes in some degree obtained a footing. 
 
 Again ; neither a court of equity nor of law can vary men's wills 
 or agreements, or (in other words) make wills or agreements for 
 them. Both are to understand them truly, and therefore both 
 of them uniformly. One court ought not to extend, nor the 
 other abridge, a lawful provision deliberately settled by the par- 
 ties, contrary to its just intent. A court of equity, no more than 
 a court of law, can relieve against a penalty in the nature of 
 stated damages ; as a rent of 5/. an acre for ploughing up an- 
 cient meadow : nor against a lapse of time, where the time is 
 material to the contract; as in covenants for renewal of leases 
 Both courts will equitably construe, but neither pretends to con 
 trol or change, a lawful stipulation or engagement. 
 
 The rules of decision are in both courts equally apposite to 
 the subjects of which they take cognizance. Where the subject 
 matter is such as requires to be determined secundum aequum et 
 bonum, as generally upon actions on the case, the judgments of 
 the courts of law are guided by the most liberal equity. In mat- 
 ters of positive right, both courts must submit to and follow 
 those ancient and invariable maxims " gua relicta sunt et tradita." 
 Both follow the law of nations, and collect it from history and the 
 most approved authors of all countries, where the question is the 
 object of that law : as in the case of the privileges of embassa- 
 dors, hostages, or ransom bills. In mercantile transactions, they 
 
828 PROCEEDINGS IN COURTS OF EQUITY. 
 
 follow the marine law, and argue from the usages and authorities 
 recei% ed in all maritime countries. Where they exercise a con- 
 current jurisdiction, they both follow the law of the propei 
 forum ; in matters originally of ecclesiastical cognizance, they 
 both equally adopt the canon or imperial law, according to the 
 nature of the subject ; and, if a question came before either, 
 which was properly the object of a foreign municipal law, they 
 would both receive information what is the rule of the country, 
 and would both decide accordingly. 
 
 Such then being the parity of law and reason which governs 
 both species of courts, wherein (it may be asked) does their es- 
 sential difference consist .J" It principally consists in the different 
 modes of administering justice in each ; in the mode of proof, 
 the mode of trial, and the mode of relief. Upon these, and upon 
 two other accidental grounds of jurisdiction, which were formerly 
 driven into those courts by narrow decisions of the courts of law, 
 viz. the true construction of securities for money lent, and the 
 form and effect of a trust or second use ; upon these main pillars 
 hath been gradually erected that structure of jurisprudence, 
 which prevails in our courts of equity, and is inwardly bottomed 
 upon the same substantial foundations as the legal system which 
 hath hitherto been delineated in these commentaries ; however 
 different they may appear in their outward form, from the dif- 
 ferent taste of their architects. 
 
 I. And, first, as to the mode oi proof. When facts, or their 
 leading circumstances, rest only in the knowledge of the party, a 
 court of equity applies itself to his conscience, and purges him 
 upon oath with regard to the truth of the transaction : and, that 
 being once discovered, the judgment is the same in equity as it 
 would have been at law. But, for want of this discovery at law, 
 the courts of equity have acquired a concurrent jurisdiction with 
 every other court in all matters of account. As incident to ac- 
 counts, they take a concurrent cognizance of the administration 
 of personal assets, consequently of debts, legacies, the distribu- 
 tion of the residue, and the conduct of executors and administra- 
 tors. As incident to accounts, they also take the concurrent 
 jurisdiction of tithes, and all questions relating thereto ; of all 
 dealings in partnership, and many other mercantile transactions ; 
 !ind so of bailiffs, receivers, factors, and agents. It would 
 be endless to point out all the several avenues in human 
 
PROCEEDINGS IN COURTS OF EQUITY. S29 
 
 affaiis, and in this commercial age, which lead to or end in 
 accounts. 
 
 From the same fruitful source, the compulsive discovery upon 
 oath, the courts of equity have acquired a jurisdiction over almost 
 all matters of fraud ; all matters in the private knowledge of the 
 party, which, though concealed, are binding in conscience ; and 
 all judgments at law, obtained through such fraud or concealment. 
 And this, not by impeaching or reversing the judgment itself, 
 but by prohibiting the plaintiff from taking any advantage of a 
 judgment, obtained by suppressing the truth ; and which, had 
 the same facts appeared on the trial as now are discovered, he 
 would -.ever have attained at all. 
 
 2. As to the mode of trial. This is by interrogatories ad- 
 ministered to the witnesses, upon which their depositions are 
 taken in writing, wherever they happen to reside. If, therefore, 
 the cause arises in a foreign country and the witnesses reside 
 upon the spot : if, in causes arising in England, the witnesses 
 are abroad, or shortly to leave the kingdom ; or if witnesses re- 
 siding at home are aged or infirm ; any of these cases lays a 
 ground for a court of equity to grant a commission to examine 
 vhem, and (in consequence) to exercise the same jurisdiction, 
 which might have been exercised at law, if the witnesses could 
 probably attend. 
 
 3. With respect to the mode of relief. The want of a more 
 specific remedy than can be obtained in the courts of law, gives 
 a concurrent jurisdiction to a court of equity in a great variety 
 of cases. To instance in executory agreements. A court of 
 equity will compel them to be carried into strict execution, un- 
 less where it is improper or impossible ; instead of giving dam- 
 ages for their non-performance. And hence a fiction is estab- 
 lished, that what ought to be done shall be considered as being 
 actually done, and shall relate back to the time when it ought to 
 have been done originally : and this fiction is so closely pursued 
 through all its consequences, that it necessarily branches out into 
 many rules of jurisprudence, which form a certain regular sys- 
 tem. So of waste, and other similar injuries, a court of equity 
 takes a concurrent cognizance, in order to prevent them by in- 
 junction. Over questions that may be tried at law, in a great 
 multiplicity of actions, a court of equity assumes a jurisdiction, 
 to prevent the expense and vexation of endless litigations and 
 
S3 :> PR OCEEDINGS IN CO UR TS OF EQ UITY. 
 
 suits. In various kinds of frauds it assumes a concurrent juris- 
 diction, not only for tlie sake of a discovery, but of a more exten- 
 sive and specific relief : as by setting aside fraudulent deeds, de- 
 creeing reconveyances, or directing an absolute conveyance 
 merely to stand as a security. And thus lastly, for the sake of 
 a more beneficial and complete relief by decreeing a sale of lands 
 a court of equity holds plea of all debts, incumbrances, and 
 charges, that may affect it or issue thereout. 
 
 4. The true construction of securities for money lent is an- 
 other fountain of jurisdiction in courts of equity. When they 
 held the penalty of a bond to be the form, and that in substance 
 it was only as a pledge to secure the repayment of the sura bona 
 fide advanced, with a proper compensation for the use, they laid 
 the foundation of a regular series of determinations, which have 
 settled the doctrine of personal pledges or securities, and are 
 equally applicable to mortgages of real property. The mortgagor 
 continues owner of the land, the mortgagee of the money lent 
 upon it ; but this ownership is mutually transferred, and the 
 mortgagor is barred from redemption, if, when called upon by 
 the mortgagee, he does not redeem within a time limited by the 
 court ; or he may when out of possession be barred by length of 
 time, by analogy to the statute of limitations. 
 
 5. The form of a trust, or second use, gives the court of 
 equity an exclusive jurisdiction as to the subject-matter of all 
 settlements and devises in that form, and of all the long terms 
 created in the present complicated mode of conveyancing. This 
 is a very ample source of jurisdiction ; but the trust is governed 
 by nearly the same rules, as would govern the estate in a court 
 of law, if no trustee was interposed ; and by a regular positive 
 system established in the courts of equity, the doctrine of trusts 
 is now reduced to as great a certainty as that of legal estates in 
 the courts of the common-law. 
 
 These are the principal (for I omit the minuter) grounds of 
 the jurisdiction at present exercised in our courts of equity : 
 which differ we see, very considerably from the notions enter- 
 tained by strangers, and even by those courts themselves before 
 they arrived to maturity ; as appears from the principles laid 
 down, and the jealousies entertained of their abuse, by our. early 
 juridical writers cited in a former page ; and which have been 
 implicitly received and handed down by subsequent compilers, 
 
PROCEEDINGS IN COUR TS OF EQUITY. 831 
 
 without attending to those gradual accessions and dereliction", 
 by which in the course of a century this mighty river hath im- 
 perceptibly shifted its channel. Lambard, in particular, in the 
 .eign of Queen Elizabeth, lays it down that " equity should not 
 be appealed unto, but only in rare and extraordinary matters ; 
 and that a good chancellor will not arrogate authority in every 
 complaint that shall be brought before him upon whatsoever sug- 
 gestion : and thereby both overthrow the authority of the courts 
 of common-law, and bring upon men such a confusion and un- 
 certainty, as hardly any man should know how or how long to 
 hold his own assured,to him." And certainly, if a court of equity 
 were still at sea, and floated upon the occasional opinion which 
 the judge who happened to preside might entertain of conscience 
 in every particular case, the inconvenience that would arise from 
 \.his uncertainty, would be a worse evil than any hardship that 
 could follow from rules too strict and inflexible. Its powers 
 would have become too arbitrary to have been endured in a 
 country like this, which boasts of being governed in all respects 
 by law and not by will. But since the time when Lambard 
 wrote, a set of great and eminent lawyers, who have successively 
 held the great seal, have by degrees erected the system of relief 
 administered by a court of equity into a regular science, which 
 cannot be attained without study and experience, any more than 
 the science of law : but from which, when understood, it may be 
 known what remedy a suitor is entitled to expect, and by what 
 mode of suit, as readily and with as much precision, in a court of 
 equity as in a court of law. 
 
 It were much to be wished, for the sake of certainty, peace, 
 and justice, that each court would as far as possible follow the 
 other in the best and most effectual rules for attaining those de- 
 sirable ends. It is a maxim that equity follows the law ; and in 
 former days the law had not scrupled to follow even that equity 
 which was laid down by the clerical chancellors. Every one who 
 is conversant in our ancient books, knows that many valuable 
 improvements in the state of our tenures (especially in leaseholds 
 and copyholds), and the forms of administering justice, have 
 arisen from this single reason, that the same thing was con- 
 stantly effected by means of a subpoena in the chancery. And 
 Bure there cannot be a greater solecism, than that' in two sov- 
 e;oign independent courts established in the same country, 
 
832 PROCEEDINGS IN COURTS OF EQUITY. 
 
 exercising concurrent jurisdiction, and over the same subject- 
 matter, there should exist in a single instance two different rules 
 of property, clashing with or contradicting each other. 
 
 It would carry me beyond the bounds of my present purpose 
 to go further into this matter. I have been tempted to go so 
 far, because strangers are apt to be confounded by nominal dis- 
 tinctions, and the loose unguarded expressions to be met with in 
 the best of our writers ; and thence to form erroneous ideas of 
 the separate jurisdictions now existing in England, but which 
 never were separated in any other country in the universe. It 
 hath also afforded me an opportunity to vindicate, on the one 
 hand, the justice of our courts of law from being that harsh and 
 illiberal rule, which many are too ready to suppose it, and on the 
 other, the justice of our courts of equity from being the result of 
 mere arbitrary opinion, or an exercise of dictatorial power, which 
 rides over the law of the land, and corrects, amends, and controls 
 it by the loose and fluctuating dictates of the conscience of a 
 single judge. It is now high time to proceed to the practice of 
 our courts of equity, thus explained, and thus understood. 
 
 The first commencement of a suit in chancery is by prefer- 
 ring a bill to the lord chancellor, in the style of a petition ; " humbly 
 complaining, showeth to your lordship your orator A. B. that, &c." 
 This is in the nature of a declaration at common law, or a libel 
 and allegation in the spiritual courts : setting forth the circum- 
 stances of the case at length, as, some fraud, trust, or hardship ; 
 " in tender consideration whereof " (which is the usual language 
 of the bill,) " and for that your orator is wholly without remedy 
 at the common law," relief is therefore prayed at the chancellor's 
 hands, and also process of subpoena against the defendant, to 
 compel him to answer upon oath to all the matter charged in the 
 bill. 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 
 concerned in interest, before the court, otherwise no decree can 
 be made to bind them ; and must be signed by counsel, as a cer- 
 tificate of its decency and propriety. For it must not contain 
 matter either scandalous or impertinent : if it does, the defendant 
 nay refuse to answer it, till such scandal or impertinence is ex- 
 
PROCEEDINGS IN COURTS OF EQUITY. 833 
 
 punged, 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 scandalous 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. 
 
 When the bill is filed in the office of the six clerks (who orig- 
 inally 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 therein, it may be had at various stages of the cause, 
 according to the circumstances 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 injunction will issue of course : and, when the 
 answer comes in, the injunction can only be continued upon a 
 sufficient ground appearing 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 imme- 
 diately to continue till the defendant has put in his answer, and 
 till the court shall make some farther order concerning it : and 
 when the answer comes in, whether it shall then be dissolved or 
 continued till the hearing of the cause, is determined by the court 
 upon argument, drawn from considering the answer and affidavit 
 together. 
 
 But, upon common bills, as soon as they are filed, process of 
 mbpcena is taken out : which is a writ commanding the defendant 
 to appear and answer to the bill, on pain of 100/. But this is not 
 all; for if the defendant, on service of the subfiana, does not 
 appear within the time limited by the rules of the court, and 
 plead, demur, or answer to the bill, he is then said to be in con- 
 tempt ; and the respective processes of contempt are in successive 
 order awarded against him. The first of which is an attachment, 
 which is a writ in the nature of a capias, directed to the sherifl, 
 and commanding him to attach, or take up, the defendant, and 
 bring him into court. If the sheriff returns that the defendant 
 
 54 
 
834 PROCEEDINGS IN COURTS OF EQUITY. 
 
 is non est inventus, then an attachment with proclamations issues ; 
 which, besides the ordinary form of attachment, directs the 
 sheriff, that he cause pubhc proclamations to be made, through- 
 out the county, 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 rcMiion is ci-warded against him, for not obeying the kinj.''s 
 proclamations according to his allegiance ; and four commissioners 
 therein named, or any of them, are ordered to attach him where- 
 soever he may be found in Great Britain, as a rebel and con- 
 temner of the king'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 inventus is returned, the court then sends a 
 Serjeant at atms in quest of him ; and if he eludes the search of 
 the Serjeant also, then a sequestratiott issues to seize all his per- 
 sonal estate, and the profits of his real, and to detain them, sub- 
 ject to the order of the court. Sequestrations were first introduced 
 by Sir Nicholas Bacon, lord keeper in the reign of Queen Elizabeth; 
 before which the court found some difificulty in enforcing its 
 process, and decrees. After an order for a sequestration issued, 
 the plaintiff's bill is to be taken /w 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 performance of the decree. Thus much 
 if the defendant absconds. 
 
 If the defendant is taken upon any of this process, he is to 
 be committed to the fleet, or other prison, till he puts in his 
 appearance, or answer, or performs whatever else this process is 
 issued to enforce, and also clears his contempts by paying the 
 costs which the plaintiff has incurred thereby. For the same 
 kind of process (which was also the process of the court of Star 
 Chamber till its dissolution) is issued out in all sorts of contempts 
 during the progress of the cause, if the parties in any point refuse 
 or neglect to obey the order of the court. 
 
 The process against a body corporate is by distringas, to 
 distrain them by their goods and chattels, rents and profits, till 
 they shall obey the summons or directions of the court. And, ii 
 
PROCEEDINGS IN COURTS OF EQUITY. 835 
 
 a peer is a 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 
 subpoena; and, if he continues still in contempt, a sequestration 
 issues out immediately against his lands and goods, without any 
 of the mesne process of attachments, &c., 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 only that the lord chancellor sends 
 him no letter missive. 
 
 The ordinary process before mentioned cannot be sued out 
 till after the service of the subpoena, for then the contempt begins ; 
 otherwise he is not presumed to have notice of the bill : and 
 therefore by absconding to avoid the subpoena a defendant might 
 have eluded justice, till the statute 5 Geo. II., ch. 25, which 
 enacts that, where the defendant cannot be found to be served 
 with process of subpoena, and absconds (as is believed) to avoid 
 being served therewith, 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 
 rot appear upon that day, the bill shall be taken /to 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 de- 
 murrer, 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 ; or where the bill seeks a discovery of a thing which may 
 cause a forfeiture of any kind, or may convict a man of any crim- 
 inal misbehavior. For any of these causes a defendant may 
 demur to the bill. And if, on demurrer, the defendant prevails, 
 the plaintiff's bill shall be dismissed : if the demurrer be over- 
 niled, the defendant is ordered to answer. 
 
 A plea may be either to the jurisdiction ; showing that the 
 court has no cognizance of the cause : or to the person ; showing 
 some disability in the plaintiff, as by outlawry, excommunication, 
 and th6 like: or it is in bar; showing some matter wherefore 
 the plaintiff can demand no relief, as an act of parliament, a fine, 
 
836 PR OCEEDINGS IN CO UR TS OF EQ UIT Y. 
 
 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 minutice 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 defence that is made to a 
 plaintiff's bill. It is given in upon oafh, 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 taken from the ecclesiastical courts, like 
 the rest of the practice in chancery : for there, in almost every 
 case, the plaintiff may demand the oath of his adversary in supply 
 of proof. Formerly this was done in those courts with compur- 
 gators, 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 introduced. This oath 
 was made use of in the spiritual courts, as well in criminal cases 
 of ecclesiastical cognizance, as in matters of civil right ; and it 
 was then usually denominated the oath ex 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 com- 
 missioners thought proper to proceed against them ex officio for 
 any supposed ecclesiastical enormities. But when the high 
 commission court was abolished by statute 16 Car. I.^ ch. 11, this 
 oath ex officio was abolished with it ; and it is also enacted by 
 statute 13 Car. II., st. i, ch. 12, " that it shall not be lawful for 
 any bishop or ecclesiastical judge to tender to any person the 
 oath, ex officio, or any other oath whereby the party may be 
 charged pr compelled to confess, accuse, or purge himself, of 
 any criminal matter." But this does not extend to oaths in a 
 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 crime, the defendant may thereupon 
 demur, asi 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 oft 
 
PROCEEDINGS IN COURTS OF EQUITY. 837 
 
 there may be a dedimus potestatem, or commission t j take his 
 answer in the country, where the commissioners administer him 
 the usual bath ; 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 
 ne received it. An answer must be signed by counsel, and must 
 ether 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 any thing in this his answer, 
 but to be dismissed the court ; if he has any relief to pray against 
 the plaintiff, he must do it by an original bill of his own, which 
 is called a crdss-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 
 matter 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 
 person 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 
 Ihis last 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 circum- 
 iStances ; 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 sufficient matter confessed in the defend- 
 ant's answer to ground a decree upon, he may proceed to the 
 hearing 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 is for the plaintiff to reply generally to the 
 «nswer, averring his bill to be true, certain, and sufficient, arid 
 
838 PROCEEDINGS IN COURTS OF EQUITY.. 
 
 the defendant's answer to be directly the reverse ; which he is 
 ready to prove as the court shall award ; upon which the defend- 
 ant rejoins, averring the like on his side ; which is joining issue' 
 upon the fatcts in dispute. To prove which facts is the next con- 
 cern. 
 
 This is done by examination of witnesses, and taking their 
 depositions m writing, according to the manner of the civil law. 
 An<l for thait purpose interrogatories are framed, or questions in 
 writing ; which, and which only, are to be proposed to, and asked 
 of, the witnesses in the cause. These interrogatories must be^ 
 short and pertinent : not leading ones ; (as, " Did not you see 
 this, or, did not you hear that ; ") for if they be such, the depo- 
 sitions taken thereon will be suppressed and not suffered to be 
 read. For the purpose of examining witnesses in or near; 
 London, there is an examiner's office appointed ; but for such asj 
 live in the country, a commission to examine witnesses is usually 
 granted to four commissioners, 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 interpreters. And it hath been established that 
 the deposition 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 till published in 
 the court of chancery ; and their clerks are also sworn to secrecy. 
 The witnesses are compellable by process of subpoena, as in the, 
 courts of common law, to appear and subrftit to examination. 
 And when their depositions are taken, they are transmitted to 
 the court with the same care 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 will, exhibits a bill in chancery against 
 the heir, and sets forth the will verbatim therein, suggesting tha'_ 
 
PROCEEDINGS IN COURTS OF EQUITY. 839 
 
 the heir is inclined to dispute its validity : and then, the defend- 
 ant having answered, they proceed to issue as in other cases, and 
 examine 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 
 contests the will. This is what is usually meant by proving a 
 will in fhancery. 
 
 When all the witnesses are examined, then, and not before, 
 the deposition 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 i-oUs, according to the discretion of the clerk in 
 court, regulated by the nature and importance of the suit, and 
 the arrear of causes depending before each 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., ch. 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 be 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. Either party may be subpcencBd 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 ; or, if the defendant 
 makes default, a decree will be made against him, which will be 
 final, unless he pays the plaintiff's cost of attendance, and shows 
 good cause to the contrary on a day appointed by the court. A 
 plaintiff's bill may also at any time be dismissed for want of prose- 
 cution, which is in the nature of a non-suit at law, if he sufEers 
 three terms to elapse without moving forward in the cause. 
 
 When there are cross causes, on a cross-bill filed by the de- 
 fendant against the plaintiff in the original cause, they are gen- 
 erally contrived 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. Tho 
 parties on both sides appearing by their counsel, the plain- 
 
840 PROCEEDINGS IN COURTS OF EQUITY. 
 
 tiffs bill is first opened or briefly abridged, and the defendant's 
 answer also, by the junior counsel on each side : after which the 
 plaintiffs leading counsel states the case and the matters in issue, 
 and the points of equity arising therefrom : and then such depo- 
 sitions as are called for by the plaintiff are read by one of the six 
 clerks, and the plaintiff may also read such part of the defend- 
 ant's answer as he thinks material or convenient: and after this 
 the rest of the counsel for the plaintiff make their observations 
 and arguments. 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 decree 
 being usually very long, the minutes of it are taken down, and 
 read openly in court by the registrar. The matter of costs to be 
 given to either party, is not here held to be a point of right, but 
 merely discretionary (by the statute 17 Ric. II., ch. 6), according 
 to the circumstances of the case, as they appear more or less 
 favorable to the party vanquished. And yet the statute 1 5 Hen. 
 VI., ch. 4, seems expressly to direct, that as well damages 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 con- 
 clude the cause ; for, if any matter of fact is strongly controverted, 
 this court is so sensible of the deficiency of trial by written de- 
 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 to 
 B., or the existence of a modus decimandi, or real and immemorial 
 composition for tithes. But, as no jury can be summoned to at- 
 tend 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 2i feigned issue. 
 For (in order to bring it there, and have the point in dispute, 
 and that only, put in issue), an action is brought, wherein the 
 plaintiff by a fiction declares that he laid a wager of 5/. with the 
 defendant, that A. was heir at law to B. ; and then avers that he 
 is so : and therefore demands 5/. The defendant admits the 
 feigned wager, but avers that A. is not the heir to B. ; and there- 
 upon that issue is joined, which is directed out of chancery t' 
 
PROCEEDINGS IN COURTS OF EQUITY. 841 
 
 be tried ; and thus the verdict of the jurors at law determines 
 the fact in the court of equity. These feigned issues seem bor- 
 rowed 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 right without the formality of plead- 
 ing, and thereby 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 
 practice 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 purpose ; 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 
 opinion to the chancelloi And upon such certificate the decree 
 is usually founded. 
 
 Another thing also retards the completion of decrees. Fre- 
 quently long accounts are to be settled, incumbrances 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 for 
 years ; and then he is to report the fast, as it appears to him, to 
 the court. This report may be excepted to, disproved, and over- 
 ruled ; or otherwise is confirmed, and made absolute, by order of 
 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- 
 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 aggrieved, he may petition the 
 chancellor for a rehearing; whether it was heard before his lord- 
 ship, 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 en- 
 rolled ; which is done of course unless a rehearing be desired. 
 Every petition for a rehearing must be signed by two counsel of 
 
S42 PROCEEDINGS IN COURTS L b' EQUITY. 
 
 character, usually such as have been concerned in the cause, car 
 tifying that they apprehend the cause is proper to be reLwjrd. 
 And upon the rehearing, all the evidence taken in the cause 
 whether read before or not, is now admitted to be read ; because 
 it is the decree of the chancellor himself, who only now sits to 
 hear reasons why it should not be enrolled and perfected ; at 
 which time all omissions of either evidence or argument may be 
 supplied. But after the decree is once signed and enrolled, it 
 cannot be reheard or rectified, but by bill of review, or by appeal 
 to the House of Lords. 
 
 A bill of review may be had upon apparent error in 
 judgment, appearing on the face of the decree ; or, by special 
 leave of the court, upon oath made of the discovery of new mat- 
 ter or evidence, which could not possibly be had or used at the 
 time when the decree passed. But no new evidence or matter 
 then in the knowledge 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 resort 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 juris- 
 diction is said to have begun in i8 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 in 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 became principal tribunals for deciding causes 
 of property, a revision of their decrees (by way of appeal) be- 
 came equally necessary, as a writ of error from the judgment of 
 a court of law. And, upon the same principle, from decrees of 
 the chancellor relating to the commissioners for the dissolution 
 of chauntries, &c., under the statute of 37 Hen. VHI., ch. 4 (as 
 well as for charitable uses under the statute 43 Eliz., ch. 4), an 
 appeal to the king in parliament was always unquestionably 
 allowed. But no new evidence is admitted in the Hdusc of 
 
PROCEEDINGS IN COURTS OF EQUITY. 843 
 
 lx)rds upon any account ; this being a distinct jurisdiction : 
 wliich differs it very considerably from those instances, wherein 
 the same juiisdiction revises and corrects its own acts, as in re- 
 hearings and bills of review. For it is a practice unknown to 
 our law (though constantly followed in the spiritual courts), 
 when a superior court is reviewing the sentence of an inferior, 
 to examine the justice of the former decree by evidence that 
 was never produced below. And thus much for the general 
 method of proceeding in the courts of equity.^ 
 
 * The procedure in courts of equity has been, to a considerable extent, changed 
 by recent English legislation; and in several of the States of this country, also, the 
 practice, which was formerly quite similar to that stated in the text, has been altered 
 in important respects. Thus in New York and other States which have adopted 
 codes of civil procedure, the same rules of pleading are established for equity suits 
 as for common-law actions, and instead of the elaborate " bill " of strict equity 
 practice, the first pleading is a complaint or petition, which is simply required to 
 " state the facts constituting the cause of action," with a demand of the appropriate 
 judgment. This may be followed by demurrer, answer, and reply, as in common-law 
 cases. (See ante, p. 781, note 4.) So the first process in these States is not a 
 siibpiena, following the plaintiffs first pleading, but a summons preceding or accom- 
 panying his complaint. But the modes of relief and of enforcing equitable judgments 
 or decrees have not been essentially changed, even in these States, and the regular 
 mode of trial is still before a judge sitting without a jury. In States not having codes 
 of procedure, the regular equity practice and system of pleading, as outlined by 
 Blackstone, are still, in general, retained, though often with statutory modifications. 
 
 By modern statutes in various States, the equitable remedy of discovery has been 
 supplanted by statutory methods accomplishing the same end, and witnesses also 
 are allowed to testify in equity cases viva voce in court, instead of by deposition. 
 
 The practice in equity of the United States Circuit and District Courts is governed 
 by an extensive body of rules prescribed by the United States Supreme Court. These 
 are in general conformity with the regular methods of equity practice, as derived 
 from England, and are supplemented by its rules and principles, whenever found 
 necessary. (U. S. Rev, St. §§ 913, 917.) 
 
OF THE NATURE OF CRIMES, ETC. 845 
 
 BOOK THE FOURTH. 
 
 OF PUBLIC WRONGS. 
 
 CHAPTER I. 
 
 [bL. COMM. BOOK IV., CH. I.] 
 
 Of the Nature of Crimes, and their Punishment 
 
 We are now arrived at the fourth and last branch of these 
 Commentaries ; which treats oi public wrongs, or crimes and mis- 
 demeanors. For we may remember that, in the beginning of the 
 preceding book, wrongs were divided into two species : the one 
 private and the other public. Private wrongs, which are fre- 
 quently termed civil injuries, were the subject of that entire 
 book : we are now therefore, lastly, to proceed to the considera- 
 tion of public wrongs, or crimes and misdemeanors ; with the 
 means of their prevention and punishment. In the pursuit of 
 which subject I shall consider, in the first place, the general 
 nature of crimes and punishments ; secondly, the persons capable 
 of committing crimes ; thirdly, their several degrees of guilt, as 
 principals, or accessories; fourthly, the several species of crimes, 
 with the punishment annexed to each by the laws of England ; 
 fifthly, the means of preventing their perpetration ; and, sixthly, 
 the method of inflicting those punishments, which the law has 
 annexed to each several crime and misdemeanor. 
 
8^6 OF THE NA TURE OF CRIMES, 
 
 First, as to the general nature of crimes and their punish- 
 ment : the discussion and admeasurement of which forms in 
 every country the code of criminal law ; or, as it is more usually 
 denominated with us in England, the doctrine of the pleas of the 
 crown ; so called, because the king, in whom centres the majesty 
 of the whole community, is supposed by the law to be the person 
 injured by every infraction of the public rights, belonging to 
 that community, and is therefore in all cases the proper prosecu- 
 tor for every public offence. 
 
 The knowledge of this branch of jurisprudence, which teaches 
 the nature, extent, and degrees of every crime, and adjusts to it 
 its adequate and necessary penalty, is of the utmost importance 
 to every individual in the state. For (as a very great master of 
 the crown law(«) has observed upon a similar occasion) no rank or 
 elevation in life, no uprightness of heart, no prudence or cir- 
 cumspection of conduct, should tempt a man to conclude, that 
 he may not at some time or other be deeply interested in these 
 researches. The infirmities of the best among us, the vices, and 
 ungovernable passions of others, the instability of all human 
 affairs, and the numberless unforeseen events, which the compass 
 of a day may bring forth, will teach us (upon a moment's reflec- 
 tion) that to know with precision what the laws of our country 
 have forbidden, and the deplorable consequences to which a wil- 
 ful disobedience may expose us, is a matter of universal concern. 
 
 In proportion to the importance of the criminal law ought 
 also to be the care and attention of the legislature in properly 
 forming and enforcing it. It should be founded upon principles 
 that are permanent, uniform, and universal ; and always con- 
 formable to the dictates of truth and justice, the feelings of 
 humanity, and the indelible rights of mankind : though it some- 
 times (provided there be no transgression of these external 
 boundaries) may be modified, narrowed, or enlarged, according 
 to the local or occasional necessities of the state which it is 
 rrieant to govern. And yet, either from a want of attention to 
 theste principles in the first concoction of the laws, and adopting 
 in their stead the impetuous dictates of avarice, ambition, and 
 revenge : from retaining the discordant political regulations, 
 which successive conquerors or factions have established, in the 
 various revolutions of government; from giving a lasting efficacy 
 (fl) Sir Michael Foster. 
 
AND THEIR PUNISHMENT. 847 
 
 to sanctions that were intended to be temporary, anti made (as 
 Lord Bacon expresses it) merely upon the spur of the occasion ; 
 or from, lastly, too hastily employing such means as are greatly 
 disproportionate to their end, in order to check the progress of 
 some very prevalent offence : from some, or from all of these 
 causes, it hath happened, that the criminal law is in every coun- 
 try of Europe more rude and imperfect than the civil. I shall 
 not here enter into any minute inquiries concerning the local 
 constitutions of other nations : the inhumanity and mistaken 
 policy of which have been sufficiently pointed out by ingenious 
 writers of their own.. But even with us in England, where our 
 crown law is with justice supposed to be more nearly advanced., 
 to perfection ; where crimes are more accurately defined, and 
 penalties less uncertain and arbitrary ; where all our accusations 
 are public, and our trials in the face of the world ; where torture 
 is unknown, and every delinquent is judged by such of his equals, 
 against whom he can form no exception nor even a personal dis- 
 like ; — even here we shall occasionally find room to remark some 
 particulars that seem to want revision and amendment. These 
 have chiefly arisen from too scrupulous an adherence to some 
 rules of the ancient common law, where the reasons have ceased 
 upon which those rules were founded ; from not repealing such of 
 the old penal laws as are either obsolete or absurd ; and from too 
 little care and attention in framing and passing new ones. The 
 enacting of penalties to which a whole nation should be subject, 
 ought not to be left as a matter of indifference to the passions 
 or interests of a few, who upon temporary motives may prefer or 
 support such a bill ; but be calmly and maturely considered by 
 persons who know what provisions the laws have already made 
 to remedy the mischief complained of, who can from experience 
 foresee the probable consequences of those which are now pro- 
 posed, and who will judge without passion or prejudice how- 
 adequate they are to the evil. It is never usual in the House 
 of Peers even to read a private bill, which may affect the prop- 
 erty of an individual, without first referring it to some of the 
 learned judges, and hearing their report thereon. And surely 
 equal precaution is necessary, when laws are to be established, 
 which may affect the property, the liberty, and perhaps even the 
 lives of thousands. Had such a reference taken place, it is im 
 
848 OF THE NA TURE OF CRIMES, 
 
 possible that in the eighteenth century it could ever have been 
 made a capital crime, to break down (however maliciously) the 
 mound of a fishpond, whereby any fish shall escape ; or to cut 
 down a cherryrtree in an orchard. Were even a committee ap- 
 pointed but once in a hundred years to revise the criminal law 
 it could not have continued to this hour a felony, without benefit 
 of clergy, to be seen for one month in the company of persons 
 who call themselves, or are called, Egyptians. 
 
 It is true, that these outrageous penalties, being seldom or 
 never inflicted, are hardly known to be law by the public : • 
 but that rather aggravates the mischief, by laying a snart 
 for the unwary. Yet they cannot but occur to the observation 
 of any one, who hath undertaken the task of examining the great 
 outlines of the English law, and tracing them up to their prin- 
 ciples : and it is the duty of such a one to hint them with 
 decency to those, whose abilities and stations enable them to 
 apply the remedy. Having therefore premised this apology for 
 some .>f the ensuing remarks, which might otherwise seem to 
 savor of arrogance, I proceed now to consider (in the first pbce) 
 the general nature of crimes. 
 
 I. A crime, or misdemeanor, is an act committed, or omitted, 
 in violation of a public law, either forbidding or commanding it. 
 This general definition comprehends both crimes and misde- 
 meanors ; which, properly speaking, are mere synonymous terms ; 
 though, in common usage, the word " crimes " is made to denote 
 such offences as are of a deeper and more atrocious dye ; while 
 smaller faults, and omissions of less consequence, are comprised 
 under the gentler name of " misdemeanors " only.'' 
 
 The distinction of public wrongs from private, of crimes 
 and misdemeanors from civil injuries, seems principally to con- 
 sist in this : that private wrongs, or civil injuries, are an infringe- 
 
 1 A great amelioration of the criminal law of England has been effected 
 m recent times ; and many comparatively trivial offenses, of which Blackstone 
 speaks as constituting felonies, have since been reduced to misdemeanors, 
 and are visited with much slighter punishments. There has been a more 
 adequate recognition of the principle that the severity of the penalty should 
 be proportionate, as far as practicable, to the heinousness of the offense, ia 
 order to secure certainty of punishment, and thereby ensure the adequate, 
 proper enforcement of the law. 
 
 » The word " crime " is generally employed in law as a generic design* 
 
AND THEIR PUNISHMENT. 849 
 
 ment or privation of the civil, rights which belong to individuals 
 considered merely as individuals : public wrongs, or crimes and 
 misdemeanors, are a breach and violation of the public rights 
 and duties, due to the whole community, considered as a com- 
 munity, in its social aggregate capacity. As if I detain a field from 
 another man, to which the law has given him a right, this is a 
 civil injury, and not a crime : for here only the right of an indi- 
 vidual is concerned, and it is immaterial to the public, which of 
 us is in possession of the land ; but, treason, murder, and robbery 
 are properly ranked among crimes ; since, besides the injury done 
 to individuals, they strike at the very being of society, which 
 cannot possibly subsist where actions of this sort are suffered to 
 escape with impunity. 
 
 In all cases the crime includes an injury; every public offence ' 
 is also a private wrong, and somewhat more ; it affects the indi^ 
 vidual, and it likewise affects the community. Thus treason in 
 imagining the king's death involves in it conspiracy against an 
 individual, which is also a civil injury ; but, as this species of 
 treason in its consequences principally tends to the dissolution of 
 government, and the destruction thereby of the order and peacs 
 of society, this denominates it a crime of the highest magnitude. 
 Murder is an injury to the life of an individual ; hut the law of 
 society considers principally the loss which the state sustains by 
 being deprived of a member, and the pernicious example thereby 
 set for others to do the like. Robbery may be considered in the 
 same view : it is an injury to private property ; but were that 
 all, a civil satisfaction in damages might atone for it : the. public 
 mischief is the thing, for the prevention of which our laws have 
 made it a capital offence. In these gross and atrocious injuries 
 the private wrong is swallowed up in the public : we seldom hear 
 
 tion, applying to all offenses of a public nature, for which an indictment or 
 public prosecution may be instituted. Crimes are then classified as " felonies ' 
 and " misdemeanors " ; the former term denoting those which are the more 
 heinous ; while the latter applies to those which are of an inferior or more 
 trivial grade. In English law, a felony is any crime which, at common-law, 
 was attended with a forfeiture of lands, or goods, or both ; all other criminal 
 offenses are misdemeanors. But, in this country, a different distinction is 
 generally drawn. Thus, in many States, a felony is any crime punishable 
 with death, or with imprisonment in a State prison; while all other crimes 
 are misdemeanors. But, in some States, there is said to be no precise dis- 
 crimination between the meaning and application of these terms. (See 117 
 US. 348; 99N. Y. 210.) 
 
 SS 
 
85b OF THE NA TURE OF CRIMES, 
 
 any mention made of satisfaction to the individual ; the satisfac- 
 tion to the community being so very great. And indeed, as the 
 public crime is not otherwise avenged than by forfeiture of life 
 and property, it is impossible afterwards to make any reparation 
 for the private wrong : which can only be had from the body or 
 goods of the aggressor. But there are crimes of an inferior 
 nature, in which the public punishment is not so severe, but it 
 affords room for a private compensation also ; and herein the dis- 
 tinction of crimes from civil injuries is very apparent. For in- 
 stance ; in the case of battery, or beating another, the aggressor 
 may be indicted for this at the suit of the king, for disturbing the 
 public peace, and be punished criminally by fine and imprison- 
 ment ; and the party beaten may also have his private remedy 
 by action of trespass for the injury which he in particular sus- 
 tains, and recover a civil satisfaction in damages. So also, in 
 case of a public nuisance, as digging a ditch across a highway, 
 this is punishable by indictment, as a common offence to the 
 whole kingdom and all His Majesty's subjects; but if any indi- 
 vidual sustains any special damage thereby, as laming his horse, 
 breaking his carriage, or the like, the offender may be compelled 
 to make ample satisfaction, as well for the private injury as for 
 the public wrong. 
 
 Upon the whole we many observe, that in taking cognizance 
 of all wrongs, or unlawful acts, the law has a double view : viz., 
 not only to redress the party injured, by either restoring to him 
 his right, if possible, or by giving him an equivalent ; the manner 
 of doing which was the object of our inquiries in the preceding 
 book of these Commentaries ; but also to secure to the public 
 the benefit of society, by preventing or punishing every breach 
 and violation of those laws, which the sovereign power has thought 
 proper to establish for the government and tranquillity of the 
 whole. What those breaches are, and how prevented or pun- 
 ished, are to be considered in the present book. 
 
 II. The nature of crimes and misdemeanors in general being 
 thus ascertained and distinguished, I proceed, in the next place, 
 to consider the general nature of punishments : which are evils 
 or inconveniences consequent upon crimes and misdemeanors ; 
 being devised, denounced, and inflicted by human laws, in con- 
 sequence of disobedience or misbehavior in those, to regulate 
 
AND THEIR PUNISHMENT. 851 
 
 whose conduct such laws were respectively made. And herein 
 
 we will briefly consider the power, the end, and the measure of 
 human punishment. 
 
 I. As to Ha^t power of human punishment, or the right of the 
 temporal legislator to inflict discretionary penalties for crimes 
 and misdemeanors. It is clear, that the right of punishing crimes' 
 against the law of nature, as murder and the like, is in a state of 
 mere nature vested in every individual. For it must be vested^ 
 in somebody ; otherwise the laws of nature would be vain and 
 fruitless, if none were empowered to put them in execution : 
 and if that power is , vested in any one, it must also be vested 
 in all mankind ; since all are by nature equal. Whereof the first 
 murderer Cain was so sensible, that we find him expressing his 
 apprehensions, that whoever should find him would slay him. In 
 a state of society this right is transferred from individuals to the 
 sovereign power ; whereby men are prevented from being judges 
 in their own causes, which is one of the evils that civil govern- 
 ment was intended to remedy. Whatever power therefore indi- . 
 viduals had of punishing offences against the law of nature, that ' 
 is now vested in the magistrate alone ; who bears the sword of ' 
 justice by the consent of the whole community. And to this 
 precedent natural power of individuals must be referred that 
 right, which some have argued to belong to every state (though, 
 in fact, never exercised by any), of punishing not only their own 
 subjects, but also foreign ambassadors, even with death itself ; 
 in case they have offended, not indeed against the municipal laws 
 of the country, but against the divine laws of nature, and become 
 liable thereby to forfeit their lives for their guilt. 
 
 As to offences merely against the laws of society, which are 
 only mala prohibita, and not mala in se ; the temporal magistrate 
 is also empowered to inflict coercive penalties for such trans- 
 gressions ; and this by the consent of individuals ; who, in form- 
 ing societies, did either tacitly or expressly invest the sovereign 
 power with the right of making laws, and of enforcing obedience 
 to them when made, by exercising, upon theii non-observance, 
 severities adequate to the evil. The lawfulness therefore of 
 punishing such criminals is founded upon this principle, that the 
 law by which they suffer was made by their own consent ; it is a 
 part of the original contract into which they entered, when first 
 
852 OF THE NATURE OF CRIMES, 
 
 they engaged in society ; it was calculated for, and has long con 
 tributed to, their own security. 
 
 This right therefore, being thus conferred by universal con- 
 sent, gives to the state exactly the same power, and no more, 
 over all its members, as each individual member had naturally 
 over himself or others. Which has occasioned some to doubt, 
 how far a human legislature ought to inflict capital punishments 
 lov positive offences ; offences against the municipal law only, 
 and not against the law of nature : since no individual has, 
 naturally, a power of inflicting death upon himself or others for 
 actions in themselves indifferent. With regard to offences mala 
 in se, capital punishments are in some instances inflicted by the 
 immediate command of God himself to all mankind ; as in the 
 case of murder, by the precept delivered to Noah, their common 
 ancestor and representative, " whoso sheddeth man's blood, by 
 man shall his blood be shed." In other instances they are in- 
 flicted after the example of the Creator, in his positive code of 
 laws for the regulation of the Jewish republic : as in the case of 
 the crime against nature. But they are sometimes inflicted 
 without such express warrant or example, at the will and dis- 
 cretion of the human legislature ; as for forgery, for theft, and 
 sometimes for offences of a lighter kind. Of these we are prin- 
 cipally to speak ; as these crimes are, none of them, offences 
 against natural, but only against social rights ; not even theft 
 itself, unless it be accompanied with violence to one's house or 
 person : all others being an infringement of that right of prop- 
 erty, which, as we have formerly seen, owes its origin not to the 
 law of nature, but merely to civil society. 
 
 The practice of inflicting capital punishments, for offences of 
 human institution, is thus justified by that great and good man. 
 Sir Matthew Hale : "When offences grow enormous, frequent, 
 and dangerous to a kingdom or state, destructive or highly per- 
 nicious to civil societies, and to the great insecurity and danger 
 of the kingdom or its inhabitants, severe punishment and even 
 death itself is necessary to be annexed to laws in many cases by 
 the prudence of lawgivers." It is therefore the enormity or dan- 
 gerous tendency of the crime that alone can warrant any earthly 
 legislature in putting him to death that commits it. It i? 
 not its frequency only, or the difficulty of otherwise preventing 
 It, that will excuse our attempting to prevent it by a wanton 
 
AND THEIR PUNISHMENT. 853 
 
 etfusion of human blood. For, though the end of punishment \i~^ 
 to deter men from offending, it never can follow from thence, that 
 it is lawful to deter them at any rate and by any means ; since ' 
 there may be unlawful methods of enforcing obedience even 
 to the justest laws. Every humane legislator will be therefore""" 
 extremely cautious of establishing laws that inflict the penalty of 
 death, especially for slight offences, or such as are merely posi- 
 tive. He will expect a better reason for his so doing, than that 
 loose one which generally is given ; that it is found by former 
 experience that no lighter penalty will be effectual. For is it 
 found upon further experience, that capital punishments are more 
 effectual.' Was the vast territory of all the Russias worse 
 regulated under the late Empress Elizabeth, than under her 
 more sanguinary predecessors .' Is it now, under Catherine II., 
 less civilized, less social, less secure } And yet we are assured, 
 that neither of these illustrious princesses have, throughout their 
 whole administration, inflicted the penalty of death : and the 
 latter has, upon full persuasion of its being useless, nay, even per- 
 nicious, given orders for abolishing it entirely throughout her 
 extensive dominions. But indeed,were capital punishments proved 
 by experience to be a sure and effectual remedy, that would not 
 prove the necessity (upon which the justice and propriety depend) 
 of inflicting them upon all occasions when other expedients fail, 
 I fear this reasoning would extend a great deal too far. For 
 instance, the damage done to our public roads by loaded wagons 
 is universally allowed, and many laws have been made to prevent 
 it ; none of which have hitherto proved effectual. But it does 
 not therefore follow that it would be just for the legislature 
 to inflict death upon every obstinate carrier, who defeats or 
 eludes the provision of former statutes. Where the evil to 
 be prevented is not adequate to the violence of the preventive, a 
 sovereign that thinks seriously can never justify such a law to 
 the dictates of conscience and humanity. To shed the blood 
 of our fellow-creature is a matter that requires the greatest 
 deliberation and the fullest conviction of our own authority ; for 
 life is the immediate gift of God to man ; which neither he can 
 resign, nor can it be taken from him, unless by the command or 
 permission of him who gave it ; either expressly revealed, or col- 
 lected from the laws of nature or society by clear and indis- 
 putable demonstration. 
 
854 OF THE NATURE OF CRIMES, 
 
 I would not be understood to deny the right of the legis- 
 lature in any country to enforce its own laws by the death of the 
 transgressor, though persons of some abilities have doubted it; 
 but only to suggest a few hints for the consideration of such as 
 are, or may hereafter, become legislators. When a question 
 arises, whether death may be lawfully inflicted for this or that 
 transgression, the wisdom of the laws must decide it ; and to 
 this public judgment or decision all private judgments must 
 submit ; else there is an end of the first principle of all society 
 and government. The guilt of blood, if any, must lie at 
 their doors, who misinterpret the extent of their warrant ; 
 and not at the doors of the subject, who is bound to receive 
 the interpretations that are given by the sovereign power. 
 
 2. As to the end or final cause of human punishments. This 
 is not by way of atonement or expiation for the crime com- 
 mitted ; for that must be left to the just determination of 
 the Supreme Being ; but as a precaution against future offences 
 of the same kind. This is effected three ways : either by the 
 amendment of the offender himself; for which purpose all 
 corporeal punishments, fines, and temporary exile or imprison- 
 ment are inflicted : or, by deterring others by the dread of his 
 example from offending in the like way, " ut poena (as TuUy 
 expresses it) ad paucos, metus ad ontnes, perveniat ; " which 
 gives rise to all ignominious punishments, and to such exe- 
 cutions of justice as are open and public : or, lastly, by depriv- 
 ing the party injuring of the power to do future mischief : 
 which is effected by either putting him to death, or con- 
 demning him to perpetual confinement, slavery, or exile. The 
 same one end, of preventing future crimes, is endeavored to 
 be answered by each of these three species of punishment. The 
 public gains equal security, whether the offender himself be 
 amended by wholesome correction, or whether he be disabled 
 from doing any further harm : and if the penalty fails of 
 both these effects, as it may do, still the terror of his example 
 remains as a Warning to other citizens. The method however 
 of inflicting punishment ought always to be proportioned to the 
 particular purpose it is meant to serve, and by no means to 
 exceed it : therefore the pains of death, and perpetual disability 
 by exi!e, slavery or imprisonment, ought never to be inflicted, but 
 when the offender appears incorrigible : which may be collected 
 
AND THEIR PUNISHMENT. 355 
 
 either from a repetition of minuter offences : or from the perpe- 
 tration of some one crime of deep malignity, which of itsell 
 demonstrates a disposition without hope or probability of amend- 
 ment : and in such cases it would be cruelty to the public 
 to defer the punishment of such a criminal, till he had an oppor- 
 tunity of repeating perhaps the worst of villanies. 
 
 3. A.S to the measure of human punishments. From what has 
 been observed in the former articles we may collect, that the 
 quantity of punishment can never be absolutely determined 
 by any standing invariable rule ; but it must be left to the arbi- 
 tration of the legislature to inflict such penalties as are war- 
 ranted by the laws of nature and society, and such as appear to 
 be the best calculated to answer the end of precaution against 
 future offences. 
 
 Hence it will be evident, that what some have so highly 
 extolled for its equity, the lex talionis, or law of retaliation, can 
 never be in all cases an adequate or permanent rule of punish- 
 ment. In some cases indeed it seems to be dictated by natural 
 reason ; as in the case of conspiracies to do an injury, or false 
 accusations of the innocent : to which we may add that law of 
 the Jews and Egyptians, mentioned by Josephus and Diodorus 
 Siculns, that whoever without sufficient cause was found with 
 any mortal poison in his custody, should himself be obliged 
 to take it. But, in general, the difference of persons, place, 
 time, provocation, or other circumstances, may enhance or miti- 
 gate the offence; and in such cases retaliation can never be 
 a proper measure of justice. If a nobleman strikes a peasant, all 
 mankind will see, that if a court of justice awards a return 
 of the blow, it is more than a just compensation. On the other 
 hand, retaliation may, sometimes, be too easy a sentence ; as, it 
 a man maliciously should put out the remaining ey ■ of him who 
 had lost one before, it is too slight a punishment for the maimer 
 to lose only one of his : and therefore the law of the Locrians, 
 which demanded an eye for an eye, was in this instance 
 judiciously altered by decreeing, in imitation of Solon's laws, 
 that he who struck out the eye of a one-eyed man, should lose 
 both his own in return. Besides, there are very many crimes, 
 that will in no shape admit of these penalties, without mani- 
 fest absurdity and wickedness. Theft cannot be punished 
 by theft, defamation by defamation, forgery by forgery, adultery 
 
8s6 OF THE NATURE OF CRIMES, 
 
 by adultery, and the like. And we may add, that those instances, 
 wherein retaliation appears to be used, even by the divine 
 authority, do not really proceed upon the rule of exact retribution, 
 by doing to the criminal the same hurt he has done to his neigh- 
 bor, and no more ; but this correspondence between the crime 
 and punishment is barely a consequence from some other princi- 
 ple. Death is ordered to be punished with death ; not because 
 one is equivalent to the other, for that would be expiation, and 
 not punishment. Nor is death always an equivalent for death : 
 the execution of a needy decrepit assassin is a poor satisfaction 
 for the murder of a nobleman in the bloom of his youth, 
 and full enjoyment of his friends, his honors and his fortune. But 
 the reason upon which this sentence is grounded seems to 
 be, that this is the highest penalty that man can inflict, and 
 tends most to the security of mankind ; by removing one mur- 
 derer from the earth, and setting a dreadful example to deter 
 others : so that even this grand instance proceeds upon other 
 principles than those of retaliation. And truly, if any measure 
 of punishment is to be taken from the damage sustained by the 
 sufferer, the punishment ought rather to exceed than equal the 
 injury : since it seems contrary to reason and equity, that 
 the guilty (if convicted) should suffer no more than the innocent 
 has done before him : especially as the suffering of the innocent 
 is past and irrevocable, that of the guilty is future, contingent, 
 and liable to be escaped or evaded. With regard indeed to 
 crimes that are incomplete, which consist merely in the inten- 
 tion, and are not yet carried into act, as conspiracies and 
 the like; the innocent has a chance to frustrate or avoid the 
 villainy, as the conspirator has also a chance to escape his punish- 
 ment : and th is may be one reason why the lex talionis is more 
 pioper to be inflicted, if at all, for crimes that consist in intention, 
 than for such as are carried into act. It seems indeed consonant 
 to natural reason, and has therefore been adopted as a maxim by 
 several theoretical writers, that the punishment due to 
 the crime of which one falsely accuses another, should be 
 inflicted on the perjured informer. Accordingly, when it was 
 once attempted to introduce into England the law of retaliation, 
 it was intended as a punishment for such only as preferred 
 malicious accusations against others ; it being enacted by statute 
 37 Edw. III., ch. 1 8, that such as preferred any suggestions to 
 
AND THEIR PUNISHMENT. 857 
 
 the king's great council should put in sureties of taliation ; that 
 is, to incur the same pain that the other should have had, in case 
 the suggestion were found untrue. But, after one year's experi 
 cnce, this punishment of taliation was rejected, and imprison- 
 ment adopted in its stead. 
 
 But though from what has been said it appears, that 
 there cannot be any regular or determinate method of rating the 
 quantity of punishments for crimes, by any one uniform rule ; 
 Ijut they must be referred to the will and discretion of the legis- 
 lative power ; yet there are some general principles, drawn from 
 the nature and circumstances of the crime, that may be of some 
 assistance in allotting it an adequate punishment. 
 
 As, first, with regard to the object of it ; for the greater and 
 more exalted the object of an injury is, the more care should 
 be taken to prevent that injury, and of course under this 
 aggravation the punishment should be more severe. Therefore 
 treason in conspiiing the kings death is by the English law pun 
 ished with greater rigor than even actually killing any private sub- 
 ject. And yet, generally, a design to transgress is not so flagrant 
 an enormity as the actual completion of that design. For evil, 
 the nearer we approach it, is the more disagreeable and shock- 
 ing ; so that it requires more obstinacy in wickedness to 
 perpetrate an unlawful action, than barely to entertain the 
 thought of it : and it is an encouragement to repentance and 
 remorse, even till the last stage of any crime, that it never is 
 too late to retract ; and that if a man stops even here, it is 
 better for him than if he proceeds : for which reason an attempt 
 to rob, to ravish, or to kill, is far less penal than the actual 
 robbery, rape, or murder. But in the case of a treasonable 
 conspiracy, the object whereof is the king's majesty, the bare 
 intention will deserve the highest degree of severity ; not 
 because the intention is equivalent to the act itself : but because 
 the greatest rigor is no more than adequate to a treasonable 
 purpose of the heart, and there is no greater left to inflict upon 
 the actual execution itself. 
 
 Again : the violence of passion, or temptation, may some- 
 times alleviate a crime ; as theft, in case of hunger, is far more 
 worthy of compassion than when committed through avarice, 01 
 to supply one in luxurious excesses. To kill a man upon sudden 
 and violent resentment, is less penal than upon cool deliberate 
 
858 OF THE NATURE OF CRIMES, 
 
 malice. The age, education, and character of the offender ; the 
 repetition (or otherwise) of the offense ; the time, the place, the 
 company wherein it was committed ; all these, and a thousand 
 other incidents, may aggravate or extenuate the crime. 
 
 Further: as punishments are chiefly intended for the preven- 
 tion of future crimes, it is but reasonable that among crimes of 
 different natures those should be most severely punished, which 
 are among the most destructive of the public safety and happi- 
 ness ; and, among crimes of an equal malignity, those which a 
 man has the most frequent and easy opportunities of committing, 
 which cannot be so easily guarded against as others, and which 
 therefore the offender has the strongest inducement to commit ; 
 according to what Cicero observes, " ea stmt animadvertenda 
 peccata maxiine, qu(B difficillime pmcaventur." 
 
 Lastly : as a conclusion to the whole, we may observe that 
 punishments of unreasonable severity, especially when indis- 
 criminately inflicted, have less effect in preventing crimes, and 
 amending the manners of a people, than such as are more merci- 
 ful in general, yet properly intermixed with due distinctions of 
 severity. It is the sentiment of an ingenious writer, who seems 
 to have well studied the springs of human action, that crimes 
 are more effectually prevented by the certainty, than by the 
 severity, of punishment. For the excessive severity of laws 
 (says Montesquieu) hinders their execution ; when the punish- 
 ment surpasses all measure, the public will frequently out of 
 humanity prefer impunity to it. Thus also the statute i Mar. 
 St. I, ch. I, recites in its preamble, " that the state of every king 
 consists more assuredly in the love of the subject towards their 
 prince, than in the dread of laws made with rigorous pains ; and 
 that laws made for the preservation of the commonwealth with- 
 out great penalties are more often obeyed and kept, than laws 
 made with extreme punishments." Happy had it been for the 
 nation, if the subsequent practice of that deluded princess in 
 matters of religion, had been correspondent to these sentiments 
 of herself and parliament, in matters of State and government ! 
 We may further observe that sanguinary laws are a bad symptom 
 of the distemper of any State, or at least of its weak constitution. 
 The laws of the Roman kings, and the twelve tables of the 
 decemviri, were full of cruel punishments ; the Porcian law, 
 which exempted all citizens from sentence of death, silently ab- 
 
AND THEIR PUNISHMENT. 859 
 
 rogated them all. In this period the republic flourished ; undei 
 the emperors severe punishments were revived ; and then the 
 empire fell 
 
 It is moreover absurd and impolitic to apply the same pun- 
 ishment to crimes of different malignity. A multi<-ude of san- 
 guinary laws (besides the doubt that may be entertained 
 concerning the right of making them) do likewise prove a man- 
 ifest defect either in the wisdom of the legislative, or the strength 
 of the executive power. It is a kind of quackery in government, 
 and argues a want of solid skill, to apply the same universal 
 remedy, the ultinium gupplicium, to every case of difficulty. It 
 is, it must be owned, much easier to extirpate than to amend 
 mankind : yet that magistrate must be esteemed both a weak 
 and a cruel surgeon, who cuts off every limb, which through igno- 
 rance or indolence he will not attempt to cure. It has been there- 
 fore ingeniously proposed, that in every State a scale of crimes 
 should be formed, with a corresponding scale of punishments, 
 descending from the greatest to the least : but, if that be too 
 romantic an idea, yet at least a wise legislator will mark the prin- 
 cipal divisions, and not assign penalties of the first degree to 
 offences of an inferior rank. Where men see no distinction made 
 in the nature and gradations of punishment, the generality will 
 be led to conclude there is no distinction in the guilt. Thus in 
 France the punishment of robbery, either with or without murder, 
 is the same : hence it is, that though perhaps they are therefore 
 subject to fewer robberies, yet they never rob but they also mur- 
 der. In China, murderers are cut to pieces, and robbers not : 
 hence in that country they never murder on the highway, though 
 they often rob. And in England, besides the additional terrors 
 of a speedy execution, and a subsequent exposure or dissection, 
 robbers have a hope of transportation, which seldom is extended 
 to murderers. This has the same effect here as in China : in 
 preventing frequent assassination and slaughter. 
 
 Yet, though in this instance we may glory in the wisdom of 
 the English law, we shall find it more difficult to justify the fre- 
 quency of capital punishment to be found therein ; inflicted 
 (perhaps inattentively) by a multitude of successive indeper dent 
 «tatutes, upon crimes very different in their natures. It is a 
 melancholy truth, that among the variety of actions which men 
 are daily liable to commit, no less than a hundred and sixty have 
 
86o OF THE PERSONS CAPABLE OF 
 
 been declared by act of parliament to be felonies without benefit 
 
 of clergy ; or, in other words, to be worthy of instant death. So 
 
 dreadful a list, instead of diminishing, increases the number of 
 
 offenders.' The injured through compassion, will often forbear 
 
 to prosecute ; juries, through compassion; will sometimes forget 
 
 their oaths, and either acquit the guilty or mitigate the nature 
 
 of the offense ; and judges, through compassion, will respite one 
 
 half of the convicts, and recommend them to the royal mercy. 
 
 Among so many chances of escaping, the needy and hardened 
 
 offender overlooks the multitude that suffer : he boldly engages 
 
 in some desperate attempt, to relieve his wants or supply his 
 
 j vices : and, if unexpectedly the hand of justice overtakes him, 
 
 the deems himself peculiarly unfortunate, in falling at last a 
 
 I sacrifice to those laws, which long impunity has taught him to 
 
 I contemn. 
 
 CHAPTER II. 
 
 [BL. COMM. BOOK IV. CH. II.] 
 
 Of the Persons capable of Committing Crimes. 
 
 Having, in the preceding chapter, considered in general the 
 nature of crimes and punishments, we are led next, in thei order 
 of our distribution to inquire what persons are, or are XiO\.,capable 
 of committing crimes : or which is all one, who are exempted 
 from the censures of the law upon the commission of those 
 ■ acts, which in other persons would be severely punished. In the 
 process of which inquiry, we must have recourse to particular 
 and special exceptions : for the general rule is, that no person 
 shall be excused from punishment for disobedience to the laws 
 of his country, excepting such as are expressly defined and ex- 
 empted by the laws themselves. 
 
 All the several pleas and excuses, which protect the com- 
 mitter of a forbidden act from the punishment which is otherwise 
 annexed thereto, may be reduced to this single consideration, the 
 want or defect of will. An involuntary act, as it has no claim 
 2 See ante note I. 
 
COMMITTING CRIMES. 86i 
 
 to merit, so neither can it induce any guilt : the concurrence cf 
 the will, when it has its choice either to do or to avoid the fact 
 in question, being the only thing that renders human actions 
 either praiseworthy or culpable. Indeed, to make a complete 
 crime cognizable by human laws, there must be both a will and 
 an act. For, though, inforo conscientice, a fixed design or will to 
 do an unlawful act is almost as heinous as the commission of it, 
 yet, as no temporal tribunal can search the heart, or fathom the in- 
 tentions of the mind, otherwise than as they are demonstrated 
 by outward actions, it therefore cannot punish for what it cannot 
 know. For which rgason in all temporal jurisdictions an overt 
 act, or some open evidence of an intended crime, is necessary in 
 order to demonstrate the depravity of the will before the man is 
 liable to punishment. And, as a vicious will, without a vicious 
 act is no civil crime, so, on the other hand, an unwarrantable act 
 without a vicious will is no crime at all. So that to constitute a 
 crime against human laws, there must be, first, a vicious will ; 
 and, secondly, an unlawful act consequent upon such vicious 
 will. 
 
 Now there are three cases, in which the will does not join 
 with the act : i. Where there is a defect of understanding. For 
 where there is no discernment, there is no choice ; and where 
 there is no choice, there can be no act of the will, which is noth- 
 ing else but a determination of one's choice to do or to abstain 
 from a particular action ; he, therefore, that has no understand- 
 ing, can have no will to guide his conduct. 2. Where there is 
 understanding and will sufficient, residing in the party ; but not 
 called forth and exerted at the time of the action done ; which is 
 the case of all offences committed by chance or ignorance. Here 
 the will sits neuter ; and neither concurs with the act, nor dis- 
 agrees to it. 3. Where the action is constrained by some out- 
 ward force and violence. Here the will counteracts the deed ; 
 and is so far from concurring with, that it loaths and disagrees 
 to, what the man is obliged to perform. It will be the 
 business of the present chapter briefly to consider all the several 
 species of defect in will, as they fall under some one or other of 
 these general heads : as infancy, idiocy, lunacy, and intoxication, 
 which fall under the first class ; misfortune, and ignorance, 
 which may be referred to the second ; and compulsion or neces>- 
 sity, which may pi operly rank in the third. 
 
862 OF THE PERSONS CAPABLE OF 
 
 I. First, we will consider the case of infancy, cr nonage ; 
 which is a defect of the understanding. Infants, under the age of 
 discretion, ought not to be punished by any criminal prosecution 
 whatever. What the age of discretion is, in various nations, is 
 matter of some variety. The civil law distinguished the age of 
 minors, or those under twenty-five years old, into three stages : 
 infantia, from the birth till seven years of age ; pueritia, from 
 - seven to fourteen ; and pubertas, from fourteen upwards. The 
 period of /Mm^/i9', or childhood, was again subdivided into two 
 equal parts : from seven to ten and a half was atas infantia 
 proxima ; from ten and a half to fourteen was mtas pubertati 
 proxima. During the first stage of infancy, and the next half 
 stage of childhood, infantice proxima, they were not punishable 
 for any crime. During the other half stage of childhood, ap- 
 proaching to puberty, from ten and an half to fourteen, they were 
 indeed punishable, if found to be doli capaces, or capable of mis- 
 chief : but with many mitigations, and not with the utmost rigor 
 of the law. During the last stage (at the age of puberty, and 
 afterwards), minors were liable to be punished, as well capitally, 
 as otherwise. 
 
 The law of England does in some cases privilege an infant, 
 under the age of twenty-one, as to common misdemeanors, so as 
 to escape fine, imprisonment, and the like : and particularly in 
 cases of omission, as not repairing a bridge, or a highway, and 
 other similar offences ; for, not having the command of his for- 
 tune till twenty-one, he wants the capacity to do those thmgs 
 which the law requires. But where there is any notorious breach 
 of the peace, a riot, battery, or the like (which infants, when full 
 grown, are at least as liable as others to commit), for these an in- 
 fant, above the age of fourteen, is equally liable to suffer, as a 
 person of the full age of twenty-one. 
 
 With regard to capital crimes, the law is still more minute 
 and circumspect; distinguishing with greater nicety the several 
 degrees of age and discretion. By the ancient Saxon law, the 
 age of twelve years was established for the age of possible dis- 
 cretion, when first the understanding might open ; and from 
 thence till the offender was fourteen, it was mtas pubertati prox- 
 ima, in which he might or might not be guilty of a crime, accord- 
 mg to his natural capacity or incapacity. This was the dubious 
 stage of discretion : but, under twelve it was held that he could 
 
COMMITTING CRIMES. 863 
 
 not be guilty in will, neither after fourteen could he be supposed 
 innocent, of any capital crime which he in fact committed. But 
 by the law, as it now stands, and has stood at least ever since the 
 time of Edward the Third, the capacity of doing ill, or contracting 
 guilt, is not so much measured by years and days, as by the 
 strength of die delinquent's understanding and judgment. For 
 one lad of eleven years old may have as much cunning as another 
 of fourteen ; and in these cases our maxim is, that "malitia sup- 
 plet cetaiem." Under seven years of age indeed an infant cannot 
 be guilty of felor^ ; for then a felonious discretion is almost an 
 impossibility in nature : but at eight years old he may be guilty 
 of felony. Also, under fourteen, though an infant shall he prima 
 facie adjudged to be doli incapax ; yet if it appear to the court 
 and jury, that he was doli capax, and could discern between good 
 and evil, he may be convicted and suffer death. Thus a girl of 
 thirteen has been burnt for killing her mistress : and one boy of 
 ten, and another of nine years old, who had killed their compan- 
 ions, have been sentenced to death, and he of ten years actually 
 hanged; because it appeared upon their trials, that the one hid 
 himself, and the other hid the body he had killed, which hiding 
 manifested a consciousness of guilt, and a discretion to discern 
 between good and evil. And there was an instance in the last 
 century where a boy of eight years old was tried at Abingdon 
 for firing two barns ; and, it appearing that he had malice, re- 
 venge, and cunning, he was found guilty, condemned, and hanged 
 accordingly. Thus also, in very modern times a boy of ten years 
 old was convicted on his own confession of murdering his bed- 
 fellow, there appearing in his whole behavior plain tokens of a 
 mischievous discretion ; and, as the sparing this boy merely on 
 account of his tender years might be of dangerous consequences to 
 the public by propagating a notion that children might commit 
 such atrocious crimes with impunity, it was unanimously agreed 
 by all the judges that he was a proper subject of capital punish- 
 ment. But, in all such cases, the evidence of that malice which 
 is to supply age, ought to be strong and clear beyond all doubt 
 and contradiction.* 
 
 'Ike established law of this country is the same ; viz., that an infant under 
 seven is conclusively presumed incapable of committing a felony ; that, yihen 
 he is between seven and fourteen, affirmative proof must be adduced to estab- 
 lish the fact of capacity {^Angela v.' People, 96 111. 209; see 90 Mo. 112; 75 
 
864 OF THE PERSONS CAPABLE OF 
 
 II. The second case of a deficiency in will, which excuses 
 from the guilt of crimes, arises also from a defective or vitiated 
 understanding, viz., in an idiot or a lunatic. For the rule of law 
 as to the latter, which may easily be adapted also to the former, 
 is, that " furiosus furore solum punitur!' In criminal cases there- 
 fore, idiots and lunatics are not chargeable for their own acts, if 
 committed when under these incapacities : no, not even for trea- 
 son itself. Also, if a man in his sound memory commits a capita) 
 offence, and before arraignment for it, he becomes mad, he ought 
 not to be arraigned for it ; because he is not abje to plead to it 
 with that advice and caution that he ought. And if, after he has 
 pleaded, the prisoner becomes mad, he shall not be tried: for how 
 can he make his defence .? If, after he be tried and found guilty, 
 he loses his senses before judgment, judgment shall not be 
 pronounced; and if, after judgment, he becomes of nonsane 
 memory, execution shall be stayed : for peradventure, says the 
 humanity of the English law, had the prisoner been of sound 
 memory, he might have alleged something in stay of judgment 
 or execution. Indeed, in the bloody reign of Henry the Eighth, 
 a statute was made, which enacted, that if a person, being compos 
 mentis, should commit high treason, and after fall into madness, 
 he might be tried in his absence, and should suffer death, as if 
 he were of perfect memory. But this savage and inhuman law 
 was repealed by the statute i & 2 Ph. & M. ch. 10. For, as is 
 observed by Sir Edward Coke, " the execution of an offender is 
 for example, ut poena ad paucos, metus ad omnes perveniat : but 
 so it is not when a madman is executed ; but should be a misera- 
 ble spectacle, both against law, and of extreme inhumanity and 
 cruelty, and can be no example to others." But if there be any 
 doubt, whether the party be compos or not, this shall be tried by 
 a jury. And if he be so found, a total idiocy, or absolute insan- 
 ity, excuses from the guilt, and of course from the punishment, 
 of any criminal action committed under such deprivation of the 
 
 Va. 885) ; that, when he is over fourteen, he is presumed to have sufficient ca- 
 p.ncity, being classed with adults in regard to criminal responsibility. But now 
 in New York the age of fourteen in these rules is changed to twelve. (Penal 
 Code, §§ 17, 20.) It is a general rule that a boy under fourteen is incapable of 
 committing a rape ; but it is held in some States that this is not a conclusive, 
 but only a disputable presumption, which itiay be rebutted by proof of sexual 
 capacity. {People v. Randolph, 2 Parker, 213; 14 Ohio, 222; 39 La. Ann. 
 935 ; 84 Ky. 4S7.) 
 
COMMITTING CRIMES 865 
 
 senses: but, if a lunatic hath lucid intervals of undei standing, 
 he shall answer for what he does in those intervals as if he had 
 no deficiency. Yet in the case of absolute madmen, as they are 
 not answerable for their actions, they should not be permitted 
 the liberty of acting unless under proper control ; and, in partic- 
 ular, they ought not to be suffered to go loose, to the terror of 
 the king's subjects. It was the doctrine of our ancient law, that 
 persons deprived of their reason might be confined till they re 
 covered their senses, without waiting for the forms of a commis- 
 sion or other special authority from the crown : and now, by the 
 vagrant acts, a method is chalked out for imprisoning, chaining, 
 and sending them to their proper homes.'' 
 
 ^ The leading authority upon the subject of criminal responsibility, as affect- 
 ed by insanity, is M'Naughten's Case,(io Clark & Finnelly, 200; i C. &K. 129), 
 in which the opinion of the whole body of judges of the common-law courts 
 W.1S taken and referred to the House of Lords, by which it was subsequently 
 sustained. The principles established by this opinion upon this subject, 
 have remained the law of England until the present day, and have been 
 adopted in many States of this country. The propositions established by 
 this decision are as follows : " The jury ought to be told in all cases that 
 every man is presumed to be sane, and to possess a sufficient degree of 
 reason to be responsible for his crimes, until the contrary be proved to their 
 satisfaction ; and that, to establish a defense on the ground of insanity, it 
 must be clearly proved that, at the time of committing the act, the party 
 accused was laboring under such a defect of reason, from disease of the 
 mind, as not to know the nature and quality of the act he was doing, or if he 
 did know it, that he did not know he was doing what was wrong." It was 
 further declared that, if the accused labors under a partial delusion only, and is 
 not in other respects insane, he must be considered in the same siuiationas to 
 responsibility, as if the facts with respect to which the delusion exists were real. 
 For example, if under the influence of his delusion, he supposes another man 
 to be in the act of attempting to take away his life, and he kills that man, as he 
 supposes, in self-defense, he would be exempt from punishment. But if the 
 mistaken belief would not, if true, justify the act, he must be held responsible. 
 
 These rules as to both total and partial insanity are also the generally pre- 
 vailing law in this country upon the subject (Guiteau's Case, 10 Fed. Rep. 
 161 ; Comm. V. Rogers, 7 Mete. 500 ; Willis v. People, 32 N. Y. 715 ; People 
 'I.Horn, 62 Cal. 120; State \. Erb, 74 Mo. 199; Taylor v. Comm. 109 Pa. 
 .St. 262), though some States adopt different doctrines in whole or in part. 
 {State V. Jones, 50 N. H. 369; Parsons v. State, 81 Ala. 577.) Examples 
 of partial delusion occur in cases of monomania ; and if the particular form of 
 such delusion does not render a person incapable of understanding the wrong- 
 ful nature of the act he commits, he may be adjudged responsible, but other- 
 wise not. {State v. Nixon, 32 Kan. 207 ; State v. Geddes, 42 la. 264; U. S. 
 V. Ridgeway, 31 Fed. Rep. 144; People v. Sprague, 2 Parker, 43.) 
 
 56 
 
866 OF THE PERSONS CAPABLE OF 
 
 III. Thirdly ; as to artificial, voluntarily contracted madness, 
 by drunkenness or intoxication, whicL, depriving men of their 
 reason, puts them in a temporary frenzy ; our law looks upon this 
 as an aggravation of the offence, rather than as an excuse for 
 any criminal misbehavior. A drunkard, says Sir Edward Coke, 
 who is voluntarius dcemon, hath no privilege thereby ; but what 
 hurt or ill soever he doth, his drunkenness doth aggravate it : nam 
 otnns crime^i ebrietas, et incendit, et detegit. It hath been ob- 
 served, that the real use of strong liquors, and the abuse of them 
 by drinking to excess, depend much upon the temperature of the 
 climate in which we live. The same indulgence, which may be 
 necessary to make the blood move in Norway, would make an 
 Italian mad. A German therefore, says the president Montes- 
 quieu, drinks through custom, founded upon constitutional neces- 
 sity ; a Spaniard drinks through choice, or out of the mere wan- 
 
 The question has recently arisen for decision, whether this criterion is a 
 sufficient and proper test of responsibility, when the accused is shown to have 
 been capable of distinguishing between right and wrong at the time of the 
 act, but was urged by an irresistible impulse to commit the offense. Among 
 medical writers, a form of insanity is recognized, in which the faculties are so 
 disordered that a man, though he perceives the moral quality of his acts, is 
 •mabie to control them, and is urged by some mysterious pressure to the 
 commission of acts, the consequences of which he anticipates, but cannot 
 avoid. But it has been held in some States that this doctrine has no applica- 
 tion in law, as a limitation of criminal responsibility. " The law recognizes 
 no form of insanity," it is declared, " in which the capacity of distinguishing 
 right from wrong exists, without the power of choosing between them." The 
 vagueness and uncertainty of this inquiry are deemed to render the doctrine 
 dangerous. (52 N. Y. 467 ; 62 Cal. 120 ; 92 Mo. 300 ; 32 Kan. 205 ; 25 Fed. 
 Rep. 710.) But some States adopt a contrary view when the irresistible im- 
 pulse is due to mental disease and not merely to a perverted moral or emo- 
 tional nature. (40 Conn. 136 ; 81 Ala. 577 ; 46 la. 88 ; 109 Pa. St. 262 ; 109 
 111. 635 ; 75 Va. 867.) A morbid perversion of the feelings, affections, or moral 
 nature, unconnected with disease of the mind, is sometimes called "moral or 
 emotional insanity," but no such form of insanity is deemed a defense for 
 crime. (Id. ; 94 Ind. 147 ; 81 Ky. 357 ; 10 Fed. Rep. 183 ; 69 Md. 28.) 
 
 Every person is presumed to be sane until the contrary be shown. The fact 
 of insanity must, therefore, be established by affirmative evidence, the burden 
 of proof resting upon the defendant. But in some States it is held that if the 
 entire evidence, including that given ou the prisoner's behalf, does not satisfy 
 the jury of his sanity beyond a reasonable doubt, he is entitled to acquittal. 
 {Walker v. People, 88 N. Y. 81 ; 32 Kan. 205 ; 43 N. H. 224; 10 Fed. Rep. 
 i6i.) In many States, however, the defendant must prove his insanity by a 
 preponderance of evidence, in order to be acquitted. (57 Me. 574; 63 Cal. 
 m ; 100 Pa. St. S73 ; 45 N. J. L. 203 & 347.) 
 
COMMITTING CRIMES, 867 
 
 tonness of luxury : and drunkenness, he adds, ought to be more 
 severely punished, where it makes men mischievous and mad, as 
 in Spain and Italy, than where it only renders them stupid and 
 heavy, as in Germany and more northern countries. And accord- 
 ingly, in the warm climate of Greece, a law of Pittacus enacted, 
 " that he who committed a crime when drunk, should receive a 
 double punishment," one for the crime itself, and the other for 
 the ebriety which prompted him to commit it. The Roman law 
 indeed made great allowances for this vice : "per vinum delapsis 
 capitalis poena remittitur." But the law of England, considering 
 how easy it is to counterfeit this excuse, and how weak an excuse 
 it is (though real), will not suffer any man thus to privilege one 
 crime by another.' 
 
 IV. A fourth deficiency of will, is where a man commits an 
 unlawful act by misfortune or chance, and not by design. Here 
 the will observes a total neutrality, and does not co-operate with 
 the deed ; which therefore wants one main ingredient of a crime. 
 Of this, when it affects the life of another, we shall find more 
 occasion to speak hereafter; at present only observing, that if 
 any accidental mischief happens to follow from the performance 
 of a lawful act, the party stands excused from all guilt : but if a 
 man be doing anything unlawful, and a consequence ensues 
 which he did not foresee or intend, as the death of a man or the 
 like, his want of foresight shall be no excuse ; for, being guilty 
 of one offence, in doing antecedently what is in itself unlawfuli 
 he is criminally guilty of whatever consequence may follow the 
 first misbehavior.'' 
 
 ' It is a well established rule of law, that voluntary intoxication furnishes 
 no excuse for crime, though it may blunt the moral perceptions, and greatly 
 disorder the mental faculties. This doctrine is founded upon salutary con- 
 siderations of public policy ; since, if a different rule were established, a con- 
 venient means of escaping responsibility would be afforded to those dis- 
 posed to commit crime. If drunkenness excused crime, it would be the 
 usual preliminary to criminal acts. If, however, habits of intemperance 
 have produced a state of actual insanity, the rule applicable in other cases of 
 insanity to determine responsibility, will be applicable. {Kenny v. People, 
 31 N. Y. 330; People v. Rogers, 18 N. Y. 9; Upstone v. People, 109 III. 169.) 
 Moreover, if a specific intent be a necessary element in a particular crime, 
 evidence of intoxication is admissible, to show that such an intent could not 
 have been entertained, and thus to change the nature or grade of the offense 
 for which the prisoner may be convicted. {Hopt v. People, 104 U. S. 631 ; 
 State V. Johnson, 41 Ct. 584 ; see 43 O. St. 332 ; 86 N. Y. 554.) 
 * If the wrongful act be attributable to carelessness, or negligence, the per- 
 
868 CF THE PERSONS CAPABLE OF 
 
 V. Fifthly : ignorance or mistake is another defect of will ; 
 when a man, intending to do a lawful act, does that which is un- 
 lawful. For here the deed and the will acting separately, there 
 is not that conjunction between them, which is necessary to form 
 a criminal act. But this must be an ignorance or mistake of 
 fact, and not an error in point of law. As if a man, intending 
 to kill a thief or house-breaker in his own house, by mistake kills 
 one of his own family, this is no criminal action ; but if a man 
 thinks he has a right to kill a person excommunicated or out- 
 lawed, wherever he meets him, and does so, this is wilful mur- 
 der. For a mistake in point of law, which every person of dis- 
 cretion not only may, but is bound and presumed to know, is in 
 criminal cases no sort of defence. Igno'raniia juris, quod quisque 
 tenetur scire, neminem excusat, is as well the maxim of our own 
 law, as it was of the Roman.^ 
 
 VI. A sixth species of defect of will is that arising from com- 
 pulsion and inevitable necessity. Thi^se are a constraint upon 
 the will, whereby a man is urged to do that which his judgment 
 disapproves ; and which, it is to be presumed, his will (if left to 
 itself) would reject. As punishments are therefore only inflicted 
 for the abuse of that free will, which God has given to man, it is 
 highly just and equitable that a man should be excused for those 
 acts which are done through unavoidable force and compulsion. 
 
 I. Of this nature, in the first place, is the obligation of civil 
 subjection, whereby the inferior is constrained by the superior to 
 act contrary to what his own reason and inclination would sug- 
 gest ; as when a legislator establishes iniquity by a law, and com- 
 mands the subject to do an act contrary to religion or sound 
 morality. How far this excuse will be admitted inforo conscientice, 
 or whether the inferior in this case is not bound to obey the di- 
 
 petrator will generally be criminally responsible. Thus, if a person, while engaged 
 in doing a lawful act, acts so recklessly and imprudently as to occasion a person's 
 death, he will be subject to indictment therefor; as if one drives carelessly in a 
 crowded street, and fatally injures a by-stander. But when a specific, actual intent is 
 necessarily involved in a certain crime, mere negligence will not be sufficient to 
 render the accused criminally liable; thus, merely a negligent taking of another's 
 goods will not constitute larceny, since this offense involves an intent to steal and to 
 convert the property to one's own use. (See Comm. v. Pierce, 138 Mass. 165; also 
 103 N. Y. 487.) 
 
 ' As to ignorance of fact, see Queen v. Tolson, 23 Q. B. D. 168; also 14 Gray, 65; 
 107 Ind. 483; as to ignorance of law, Hamilton v. People, 57 Barb. 625; State v. 
 Goodenow, 65 Me. 30. But ignorance of fact does not excuse, when a statute creates 
 •h absolute liability, irrespective of such ignorance. (143 Mass. 132; 62 la. 400; 
 106 N. Y. 321.) 
 
COMMITTING CRIMES. 869 
 
 vine, rather than the human law, it is not my business '.o decide ; 
 though the question, I believe, among the casuists, will hardly 
 bear a doubt. But, however that may be, obedience to the laws 
 in being is undoubtedly a sufficient extenuation of civil guilt 
 before the municipal tribunal. The sheriff, who burnt Latimer 
 and Ridley, in the bigoted days of Queen Mary, was not liable 
 to punishment from Elizabeth, for executing so horrid an office ; 
 being justified by the commands of that magistracy, which en- 
 deavored to restore superstition under the holy auspices of its 
 merciless sister, persecution. 
 
 As to persons in private relations ; the principal case, where 
 constraint of a superior is allowed as an excuse for criminal mis- 
 conduct, is with regard to the matrimonial subjection of the wife 
 to her husband ; for neither a son nor a servant are excused for 
 the commission of any crime whether capital or otherwise, by 
 the command or coercion of the parent or master ; though in 
 some cases the command or authority of the husband, either ex- 
 pressed or implied, will privilege the wife from punishment, even 
 for capital offences. And, therefore, if a woman commit theft, 
 burglary, or other civil offences against the laws of society, by 
 the coercion of her husband ; or even in his company, which the 
 law construes a coercion ; she is not guilty of any crime ; being 
 considered as acting by compulsion and not of her own will.' 
 Which doctrine is at least a thousand years old in this kingdom, 
 bemg to be found among the laws of king Ina, the West Saxon. 
 And it appears that among the Northern nations on the conti- 
 nent, this privilege extended to any woman transgressing in con- 
 cert with a man, and to any servant that committed a joint 
 offence with a freeman ; the male or freeman only was punished, 
 the female or slave diwnissed ; " procul dubio quod alterum liber- 
 tasy alterum necessitas impelleret." But (besides that in our law, 
 which is a stranger to slavery, no impunity is given to servants, 
 who are as much free agents as their masters) even with regard 
 
 " But the presumption that a crime committed by a wife, in the presence of her 
 husband, is done by his coercion, is not conclusive, but open to rebuttal by evidence 
 that the offense was exclusively of her own commission. " Thus, if the husband were 
 a cripple, and confined to his bed, his presence would not be sufficient to exonerate 
 the wife." (Russell on Crimes, vol. i. 22.) (See 97 N. Y. 126; 148 Mass. 11; 13 
 ^' '■ 535> 537O The exemption of the wife does not, in any case, extend to crimes 
 of the graver class, such as treason, murder, and perhaps robbery; and now in New 
 York it is altogether abolished. (Penal Code, § 24.) 
 
870 OF THE PERSONS CAPABLE OF 
 
 to wives, this rule admits of an exception in crimes that are mala 
 in se, and prohibited by the law of nature, as murder and the like ; 
 not only because these are of a deeper dye, but also, since in a 
 state of nature no one is in subjection to another, it would be 
 unreasonable to screen an offender from the punishment due to 
 natural crimes, by the refinements and subordinations of civil 
 society. In treason also (the highest crime which a member of 
 society can, as such, be guilty of), no plea of coverture shall ex- 
 cuse the wife ; no presumption of the husband's coercion shall 
 extenuate her guilt ; as well, because of the odiousness and dan- 
 gerous consequences of the crime itself, as because the husband, 
 having broken through the most sacred tie of social community 
 by rebellion against the state, has no right to that obedience from 
 a wife, which he himself as a subject has forgotten to pay. In 
 inferior misdemeanors also we may remark another exception ; 
 that a wife may be indicted and set in the pillory with her hus- 
 band, for keeping a brothel ; for this is an offence touching the 
 domestic economy or government of the house, in which the 
 wife has a principal share ; and is also such an offence as the 
 law presumes to be generally conducted by the intrigues of the 
 female sex.f And in all cases, where the wife offends alone, 
 without the company or coercion of her husband she is respon- 
 sible for her offence, as much as any feme-sole. 
 
 2. Another species of compulsion or necessity is what our law 
 calls duress per minus ; or threats and menaces, which induce a 
 fear of death or other bodily harm, and which take away for that 
 reason the guilt of many crimes and misdemeanors ; at least 
 before the human tribunal. But then that fear which compels a 
 man to do an unwarrantable action, ought to be just and well- 
 grounded ; such " qui cadere possit in "Sirum constantem, non 
 timidum et meticulosum," as Bracton expresses it, in the words 
 of the civil law. Therefore, in time of war or rebellion, a man 
 may be justified in doing many treasonable acts by compulsion 
 of the enemy or rebels, which would admit of no excuse in the 
 time of peace. This however seems only, or at least principally, 
 to hold as to positive crimes, so created by the laws of society ; 
 and which, therefore, society may excuse ; but not as to natural 
 offences so declared by the law of God, wherein human magis- 
 trates are only the executioners of divine punishment. And 
 therefore though a man be violently assaulted, and hath no other 
 
 t See Comm. v. Levjis, i Mete. 151; Com7n. v. Hopkins, 133 Mass. 381; States. Bentz, 11 Mo. 27. 
 
'COMMITTING CRIMES. 871 
 
 possible means of escaping death, but by killing an innocent 
 person ; this fear and force shall not acquit him of murder ; for 
 he ought rather to die himself, than escape by the murder of an 
 innocent. But in such a case he is permitted to kill the assailant ; 
 for there the law of nature, and self-defence, its primary canon, 
 have made him his own protector. 
 
 3. There is a third species of necessity, which may be distin- 
 guished from the actual compulsion of external force or fear ; 
 being the result of reason and reflection, which act upon and 
 constrain a man's will, and oblige him to do an action, which 
 without such obligation would be criminal. And that is, when a 
 man has his choice of two evils set before him, and, being under 
 a necessity of choosing one, he chooses the least pernicious of the 
 two. Here the will cannot be said freely to exert itself, being 
 rather passive than active ; or, if active, it is rather in rejecting 
 the greater evil than in choosing the less. Of this sort is that 
 necessity, where a man by the commandment of the law is bound 
 to arrest another for any capital offence, or to disperse a riot, 
 and resistance is made to his authority ; it is here justifiable and 
 even necessary to beat, to wound, or perhaps to kill the offenders, 
 rather than permit the murderer to escape, or the riot to continue. 
 Foi the preservation of the peace of the kingdom, and the appre- 
 herding of notorious malefactors, are of the utmost consequence 
 to the public ; and therefore excuse the felony, which the killing 
 would otherwise amount to. 
 
 4. There is yet another case of necessity, which has occasioned 
 great speculation among the writers upon general law ; viz., 
 whether a man in extreme want of food or clothing may justify 
 stealing either, to relieve his present necessities ■? And this both 
 Grotius and Puffendorf, together with many other of the foreign 
 jurists, hold in the affirmative ; maintaining by many ingenious, 
 humane, and plausible reasons, that in such cases the community 
 of goods, by a kind of tacit confession of society, is revived. And 
 some even of our own lawyers have held the same, though it 
 seems to be an unwarranted doctrine, borrowed from the notions 
 of some civilians : at least it is now antiquated, the law of England 
 admitting no such excuse at present. And this its doctrine is 
 agreeable not only to the sentiments of many of the wisest 
 ancients, particularly Cicero, who holds that " suum cuique incom- 
 tnodum ferendum est, potius quam de alterius commodis detrahen- 
 
8;2 OF THE PERSONS CAPABLE, ETC. 
 
 dum ; " but also to the Jewish law, as certified by king Solomon 
 himself : " if a thief steal to satisfy Jjiis soul when he is hungry, 
 he shall restore seven-fold, and shall give all the substance of his 
 house : " which was the ordinary punishment for theft in that 
 kingdom. And this is founded upon the highest reason : for 
 men's properties would be under a strange insecurity, if liable to 
 be invaded according to the wants of others, of which wants no 
 man can possibly be an adequate judge, but the party himself 
 who pleads them. In this country especially, there would be a 
 peculiar impropriety in admitting so dubious an excuse : for by 
 our laws such sufficient provision is made for the poor by the 
 power of the civil magistrate, that it is impossible that the most 
 needy stranger should ever be reduced to the necessity of thiev- 
 ing to support nature. This case of a stranger is, by the way, 
 the strongest instance put by Baron Puffendorf, and whereon he 
 builds his principal arguments : which, however they may hold 
 upon the continent, where the parsimonious industry of the 
 natives orders every one to work or starve, yet must lose all 
 their weight and efficacy in England, where charity is reduced to 
 a system, and interwoven in our very constitution. Therefore 
 our laws ought by no means to be taxed with being unmerciful 
 for denying this privilege to the necessitous ; especially when 
 we consider, that the king, on the representation of his ministers 
 of justice, hath a power to soften the law, and to extend mercy 
 in cases of peculiar hardship. An advantage which is wanting 
 in many States, particularly those which are democratical ; and 
 these have in its stead introduced and adopted, in the body of 
 the law itself, a multitude of circumstances tending to alleviate 
 its rigor. But the founders of our constitution thought it better 
 to vest in the crown the power of pardoning particular objects of 
 compassion, than to countenance and establish theft by one gen- 
 eral undistinguishing law. 
 
 VII. To these several cases, in which the incapacity of com- 
 mitting crimes arises from a deficiency of the will, we may add 
 one more, in which the law supposes an incapacity of doing 
 wrong, from the excellence and perfection of the person ; which 
 extend as well to the will as to the other qualities of his mind. I 
 mean the case of the king ; who, by virtue of his royal preroga- 
 tive, is not under the coercive power of the law ; which will not 
 suppose him capable of committing a folly, much less a crime 
 
OF PRINCIPALS AND ACCESSORIES. 873 
 
 We are therefore, out of reverence and decency, to forbear any 
 idle inquiries, of what would be the consequence if the king were 
 to act thus and thus : since the law deems so highly of his wis- 
 dom and virtue, as not even to presume it possible for him to do 
 any thing inconsistent with his station and dignity ; and there- 
 fore has made no provision to remedy such a grievance. 
 
 . CHAPTER III. 
 
 [bL. COMM. BOOK IV. CH. III.] 
 
 Of Principals and Accessories. 
 
 It having been shown in the preceding chapter what persons 
 are, or are not, upon account of their situation and circumstances, 
 capable of committing crimes, we are next to make a few remarks 
 on the different degrees of guilt among persons that are capable 
 of offending ; viz., a.s principal, and as accessory. 
 
 I. A man may h& principal in an offence in two degrees. A 
 principal, in the first degree, is he that is the actor, or absolute 
 perpetrator of the crime ; and, in the second degree, he who is 
 present, aiding and abetting the fact to be done. Which presence 
 need not always be an actual immediate standing by, within 
 sight or hearing of the fact ; but there may be also a constructive 
 presence, as when one commits a robbery or murder, and another 
 keeps watch or guard at some convenient distance.f And this 
 rule hath also other exceptions : for, in case of murder by poison- 
 ing, a man may be a principal felon by preparing and laying 
 the poison, or persuading another to drink it who is ignorant of 
 its poisonous quality, 01 giving it to him for that purpose ; and 
 yet not administer it himself, nor be present when the very deed 
 of poisoning is committed. And the same reasoning will hold, 
 with regard to other murders committed in the absence of the 
 murderer, by means which he had prepared beforehand, and 
 which probably could not fail of their mischievous effect. As by 
 laying a trap or pitfall for another, whereby he is killed : letting 
 out a wild beast, with an intent to do mischief, or inciting a mad- 
 man to commit murder, so that death thereupon ensues ; in 
 
 t See McCarney v. People, 83 N. Y. 408; Stephens v. State, 42 O. St. 150; Stute v. Allen, 47 
 Conn, 121. 
 
874 OF PRINCIPALS AND ACCESSORIES. 
 
 everyone of these cases the party offending is guilty of mu.deraa 
 a principal, in the first degree. For he cannot be called an acces- 
 sory, that necessarily presupposing a principal : and the poison, 
 the pitfali, the beast, or the madman, cannot be held principals, 
 being only the instruments of death. As therefore he must be 
 certainly guilty either as principal or accessory, and cannot be 
 so as accessory, it follows that he must be guilty as principal, 
 and if principal, then in the first degree ; for there is no other 
 criminal, much less a superior in the guilt, whom he could aid, 
 abet, or assist. 
 
 II. An accessory is he who is not the chief actor in the 
 offence, nor present at its performance, but is some way con- 
 cerned therein, either before or after the fact committed. In 
 considering the nature of which degree of guilt, we will, first, ex- 
 amine, what offences admit of accessories, and what not : second- 
 ly, who may be an accessory before the fact : thirdly, who may 
 be an accessory after it : and, lastly, how accessories, considered 
 merely as such, and distinct from principals, are to be treated. 
 
 I. And, first, as to what offences admit of accessories, and 
 what not. In high treason there are no accessories, but all are 
 principals : the same acts, that make a man accessory in felony, 
 making him a principal in high treason, upon account of the 
 heinousness of the crime. Besides it is to be considered, that 
 the bare intent to commit treason is many times actual treason : 
 as imagining the death of the king, or conspiring to take away 
 his crown. And, as no one can advise and abet such a crime 
 without an intention to have it done, there can be no accessories 
 before the fact ; since the very advice and abetment amount to 
 principal treason. But this will not hold in the inferior species 
 of high treason, which do not amount to the legal idea of com- 
 passing the death of the king, queen, or prince. Fir in those no 
 advice to commit them, unless the thing be actually performed, 
 will make a man a principal traitor. In murder, and felonies with 
 or without benefit of clergy there may be accessories : except 
 only in those offences, which by judgment of law are sudden 
 and unpremeditated, as manslaughter and the like ; which there- 
 fore cannot have any accessories before the fact. So, too, in petit 
 larceny, and in all crimes under the degree of felony, there are 
 no accessories either before or after the fact ; but all persons con- 
 cerned therein, if guilty at all, are principals : the same rule 
 
OF PRINCIPALS AND ACCESSORIES. 875 
 
 holding with regard to the highest and lowest offences, though 
 upon different reasons.^ In treason all are principals, /w//^/ 
 odium delicti ; in trespass all are principals, because the law, 
 qua de minimis non curat, does not descend to distinguish the 
 different shades of guilt in petty misdemeanors. It is a maxim, 
 that accessorius sequitur naturam sui principalis : and therefore 
 an accessory cannot be guilty of a higher crime than his prin- 
 cipal ; being only punished as a partaker of his guilt. So that 
 if a servant instigates a stranger to kill his master, this being 
 murder in the stranger as principal, of course the servant is ac 
 cessory only to the £rime of murder ; though, had he been 
 present and assisting, he would have been guilty as principal of 
 petit treason, and the strairger of murder." 
 
 2. As to the second point, who may be an accessory before 
 the fact, sir Matthew Hale defines him to be one, who being ab- 
 sent at the time of the crime committed, doth yet procure, coun- 
 sel, or command another to commit a crime. Herein absence is 
 necessary to make him an accessory : for if such procurer, or the 
 like, be present, he is guilty of the crime as principal.' If A then 
 advises B to kill another, and B does it in the absence of A, now 
 B is principal, and A is accessory in the murder. And this holds, 
 even though the party killed be not in rerum naturd at the time 
 of the advice given. As if A, the reputed father, advises B, the 
 mother of a bastard child, unborn, to strangle it when born, and 
 she does so ; A is accessory to this murder. And it is also set- 
 lied, that whoever procureth a felony to be committed, though it 
 be by the intervention of a third person, is an accessory before 
 the fact. It is likewise a rule, that he who in any wise com- 
 
 * bee fVard v. People, 3 Hill, 39s ; People v. Erwin, 4 Denio, 129 ; Leto- 
 enstein v. People, 54 Barb. 299. 
 
 * The crime of petit treason is now abolished. 
 
 « A person who procures the commission of a crime through the instru- 
 mentality of an innocent agent, who does not understand the criminality ol 
 the act he performs, is responsible as principal, and the agent is excused ; 
 as, if one instigates an idiot, or lunatic, or an infant of tender years, to per- 
 petrate some deed of crime, which is committed without knowledge of its 
 guilt; or, if one mixes poison with a patient's medicine, and causes it to be 
 administered by a nurse, who acts innocently, without knowledge of the fact 
 But if the agent be guilty, the absent employer is only an accessory. (Sea 
 Peopk^. McMunay, 4 Parker, 234; Wixson v. People, 5 Id. 119; People v 
 Kai%, 23 How. Pr. 93 ; Comm. v. HiH, 11 Mass. 136.) 
 
376 OF PRINCIPALS AND ACCESSORIES. 
 
 mands or counsels another to commit an unlawful act, is acces- 
 sory to all that ensues upon that unlawful act ; but is not acces- 
 sory to any act distinct from the other. And if A commands B 
 to beat C, and B beats him so that he dies : B is guilty of murder 
 as principal, and A as accessory. But if A commands B to burn 
 C's house ; and he, in so doing, commits a robbery ; now A, 
 though accessory to the lurning, is not accessory to the robbery, 
 for that is a thing of a distinct and unconsequential nature. But 
 if the felony committed be the same in substance with that which 
 is commanded, and only varying in some circumstantial matters ; 
 as if, upon a command to poison Titius, he is stabbed or shot, 
 and dies : the commander is still accessory to the murder, for the 
 substance of the thing commanded was the death of Titius, and 
 the manner of its execution is a mere collateral circumstance. 
 
 3. An accessory after the fact may be, where a person, know- 
 ing a felony to have been committed, receives, relieves, comforts, 
 or assists the felon. Therefore to make an accessory ex post 
 facto, it is in the first place requisite that he knows of the felony 
 committed. In the next place he must receive, relievo, comfort, 
 or assist him. And generally any assistance whatever, given to 
 a felon, to hinder his being apprehended, tried, or suffering pun- 
 ishment, makes the assister an accessory. As furnishing him 
 with a horse to escape his pursuers, money or victuals to sup- 
 port him, a house or other shelter to conceal him,, or open force 
 and violence to rescue or protect him. So likewise to convey 
 instruments to a felon to enable him to break jail, or to bribe 
 the jailer to let him escape, makes a man an accessory to the 
 felony. But to relieve a felon in jail with clothes or other neces- 
 saries, is no offence ; for the crime imputable to this species of 
 accessory is the hinderance of public justice, by assisting the 
 felon to escape the vengeance of the law. To buy or receive 
 stolen goods, knowing them to be stolen, falls under none of these 
 descriptions ; it was therefore at common law a mere misde- 
 meanor, and made not the receiver accessory to the theft, because 
 he received the goods only, and not the felon : but now by the 
 statutes 5 Ann., ch. 3i,and 4 Geo. I., ch. 11, all such receivers are 
 made accessories (where the principal felony admits of acces- 
 sories) and may be transported for fourteen years. 
 
 The felony must he complete at the time of the assistance 
 given ; else it makes not the assistant an accessory. As if one 
 
OF PRINCIPALS AND ACCESSORIES. 877 
 
 wounds another mortally, and after the wound given, but before 
 death ensues, a person assists or receives the delinquent : this 
 does not make him accessory to the homicide ; for, till death 
 ensues, there is no felony committed. But so strict is the law 
 where a felony is actually complete, in order to do effectual jus- 
 tice, that the nearest relations are not suffered to aid or receive 
 one another. If the parent assists his child, or the child the 
 parent, if the brother receives the brother, the master his servant 
 or the servant his master, or even if the husband relieves his wife, ' 
 who have any of them committed a felony, the receivers become 
 accessories ex post facto. But a feme-covert cannot become an 
 accessory by the receipt and concealment of her husband ; for 
 she is presumed to act under his coercion, and therefore she is 
 not bound, neither ought she, to discover her lord. 
 
 4. The last point of inquiry is, how accessories are to be 
 treated, considered distinct from principals. And the general 
 rule of the ancient law (borrowed from the Gothic constitutions) 
 is this, that accessories shall suffer the same punishment as their 
 principals : if one be liable to death, the other is also liable : as, 
 by the laws of Athens, delinquents and their abettors were to 
 receive the same punishment. Why then, it may be asked, are 
 such elaborate distinctions made between accessories and prin- 
 cipals, if both are to suffer the same punishment ? For these 
 reasons : i. To distinguish the nature and denomination of 
 crimes, that the accused may know how to defend himself when 
 indicted ; the commission of an actual robbery being quite a- 
 different accusation from that of harboring the robber. 2. Be- 
 cause, though by the ancient common law the rule is as before 
 laid down, that both shall be punished alike, yet now by the 
 statutes relating to the benefit of clergy, a distinction is made 
 between them : accessories after the fact being still allowed the 
 benefit of clergy in all cases, except horse-stealing and stealing 
 of linen from bleaching-grounds : which is denied to the princi- 
 pals and accessories before the"fact, in many cases ; as, among 
 others, in petit treason, murder, robbery, and wilful burning. 
 And perhaps if a distinction were constantly to be made between 
 the punishment of principals and accessories, even before the 
 fact, the latter to be treated with a little less severity than the 
 former, it might prevent the perpetration of many crimes, by 
 •ncreasiag the difficulty of finding a person to execute the deed 
 
878 OF PRINCIPALS AND ACCESSORIES. 
 
 itself ; as his danger would be greater than that of his accom 
 plices, by reason of the difference of his punishment. 3. Because 
 formerly no man could be tried as accessory till after the princi- 
 pal was convicted, or at least he must have been tried at the 
 same time with him : though that law is now much altered, as 
 will be shown more fully in its proper place. 4. Because, though 
 a man be indicted as accessory and acquitted, he may afterwards 
 be indicted as principal : for an acquittal of receiving or coun- 
 selling a felon, is no acquittal of the felony itself : but it is mat- 
 ter of some doubt, whether, if a man be acquitted as principal, 
 he can be afterwards indicted as accessory before the fact ; since 
 those offences are frequently very nearly allied, and therefore an 
 acquittal of the guilt of one may be an acquittal of the other 
 also.* But it is clearly held, that one acquitted as principal may 
 be indicted as an accessory after the fact ; since that is always 
 an offence of a different species of guilt, principally tending to 
 evade the public justice, and is subsequent in its commencement 
 to the other. Upon these reasons the distinction of principal 
 and accessory will appear to be highly necessary ; though the 
 punishment is still much the same with regard to principals, and 
 such accessories as offend before the fact is committed.'' 
 
 * But the weight of authority at common-law supports the view that, after 
 an acquittal as principal, the prisoner may be indicted as accessory before 
 the fact. The offenses are specifically different. 
 
 6 By the present English law, an accessory before the fact may be tried 
 and convicted as if he were a principal felon ; and both they and accessories 
 after the fact may be convicted of a substantive felony, whether the principal 
 felon shall or shall not have been previously convicted, or shall or shall not 
 be ametiable to justice. The tendency of legislation in the United States 
 has been to make similar changes. But, in the absence of such statutory 
 changes, the common-law rules in regard to the relative order of trials, are 
 still generally in force. Now in New York principals of both degrees and 
 accessories before the fact are called "principals" simply, while the name 
 "accessories" is applied solely to accessories after the fact. (Penal Code 
 §§29-32.) 
 
 It is a general rule that principals of both degrees, and accessories before 
 the fact, are subjected to the same punishment ; but accessories after the 
 ' fact receive lighter penalties, because they are not so much regarded as par- 
 ticipating in the principal offense, but rather as interfering with the propel 
 administration of justice. 
 
OFFENCES A GAINST THE LA W OF NA TIONS. 879 
 
 CHAPTER IV. 
 
 [bL. COMM. — BOOK IV., CH. V.] 
 
 Of Offences against the Law of Nations. 
 
 Accc RDiNG to the method marked out in the preceding chap- 
 ter,' we are next to consider the offences more immediately 
 repugnant to that universal law of society, which regulates the 
 mutual intercourse between one state and another ; those, I 
 mean, which are particularly animadverted on, as such, by the 
 English law.' 
 
 The law of nations is a system of rules, deducible by natural 
 reason, and established by universal consent among the civilized 
 inhabitants of the world ; in order to decide all disputes, to regu- 
 late all ceremonies and civilities, and to insure the observance of 
 justice and good faith, in that intercourse which must frequently 
 occur between two or more independent states, and the individ- 
 uals belonging to each. This general law is founded upon this 
 principle, that different nations ought in time of peace to do one 
 another all the good they can ; and in time of war as little harm 
 as possible, without prejudice to their own real interests. And, 
 as none of these states will allow a superiority in the other, 
 therefore neither can dictate or. prescribe the rules of this law 
 to the rest ; but such rules must necessarily result from those 
 
 ' In the preceding chapter (omitted in this edition), Blaclcstone has given 
 the following classification of criminal offenses : "First, those which are 
 more immediately injurious to God and His holy religion ; secondly, such as 
 violate and transgress the law of nations ; thirdly, such as more especially 
 affect the sovereign executive power of the State, or the king and his gov- 
 ernment ; fourthly, such as more directly infringe the rights of the public 
 or commonwealth ; and, lastly, such as derogate from those rights and duties 
 which are owing to particular individuals, and in the preservation and vindi- 
 cation of which the community is deeply interested." This omitted chap- 
 ter treats of such offenses as are included under the first of these heads ; 
 but as these relate peculiarly to the English ecclesiastical system, they are 
 deemed of little importance to the American student. 
 
 ''Offenses of this class are, in this country, within the jurisdiction of the 
 federal courts, and not of the State tribunals. 
 
88o OFFENCES AGAINST THE LA IV OF NA TIONS. 
 
 principles of natural justice, in which all the learned of every 
 nation agree ; or they depend upon mutual compacts or treaties 
 between the respective communities; in the construction of 
 which there is also no judge to resort to, but the law of nature 
 and reason, being the only one in which all the contracting 
 parties are equally conversant, and to which they are equally 
 subject. 
 
 In arbitrary states this law, wherever it contradicts, or is not 
 provided for by the municipal law of the country, is enforced by 
 the royal power: but since in England no royal power can intro- 
 duce a new law, or suspend the execution of the old, therefore 
 the law of nations (wherever any question arises which is prop- 
 erly the object of its jurisdiction) is here adopted in its full 
 extent by the cohimon law, and is held to be a part of the law of 
 the land. And those acts of parliament which have from time 
 to time been made to enforce this universal law, or to facilitate 
 the execution of its decisions, are not to be considered as intro- 
 ductive of any new rule, but merely as declaratory of the old 
 fundamental constitutions of the kingdom : without which it 
 must cease to be a part of the civilized world. Thus in mercan- 
 tile questions, such as bills of exchange and the like : in all 
 marine causes, relating to freight, average, demurrage, insurances, 
 bottomry, and others of a similar nature ; the law-merchant, 
 which is a branch of the law of nations, is regularly and con- 
 stantly adhered to. So too in all disputes relating to prizes, to 
 shipwrecks, to hostages, and ransom bills, there is no other rule 
 of decision but this great universal law, collected from history 
 and usage, and such writers of all nations and languages as are 
 generally approved and allowed of. 
 
 But, though in civil transactions and questions of property 
 between the subjects of different states, the law of nations has 
 much scope and extent, as adopted by the law of England ; yet 
 the present branch of our inquiries will fall within a narrow com- 
 pass, as offences against the law of nations can rarely be the 
 object of the criminal law of any particular state. For offences 
 against this law are principally incident to whole states or 
 nations ; in which case recourse can only be had to war ; which 
 is an appeal to the God of Hosts, to punish such infractions of 
 public faith, as are committed by one independent people against 
 another : neither state having any superior jurisdiction to resort 
 
OFFENCES AGAINST THE LA W OF NA TIONS. 88 1 
 
 to upon earth for justice. But where the individuals of any 
 state violate this general law, it is then the interest as well 
 as duty of the government, under which they live, to animadvert 
 upon them with a becoming severity that the peace of the world 
 may be maintained. For in vain would nations in their collec- 
 tive capacity observe these universal rules, if private subjects 
 were at liberty to break them at their own discretion, and involve 
 the two states in a war. It is therefore incumbent upon the 
 nation injured, first to demand satisfaction and justice to be done 
 on the offender, by the state to which he belongs ; and, if that 
 be refused or neglegted, the sovereign then avows himself an 
 accomplice or abettor of his subject's crime, and draws upon his 
 community the calamities of foreign war. 
 
 The principal offences against the law of nations, animad- 
 verted on as such by the municipal laws of England, are of three 
 kinds : i. Violation of safe-conducts ; 2. Infringement of the 
 rights of ambassadors ; and 3. Piracy. 
 
 I. As to the first, violation of safe-conducts or passports, ex- 
 pressly granted by the king or his ambassadors to the subjects 
 of a foreign power in time of mutual war; or committing acts ol 
 hostilities against such as are in amity, league, or truce with us, 
 who are here under a general implied safe-conduct : these are 
 breaches of the public faith, without the preservation of which 
 there can be no intercourse or commerce between one nation and 
 another : and such offences may according to the writers upon 
 the law of nations, be a just ground of a national war ; since it 
 is not in the power of the foreign prince to cause justice to be 
 done to his subjects by the very individual delinquent, but he 
 must require it of the whole community. And as during the 
 continuance of any safe-conduct, either express or implied, the 
 foreigner is under the protection of the king and the law : and, 
 more especially, as it is one of the articles of magna charta, that 
 foreign merchants should be entitled to safe-conduct and security 
 throughout the kingdom : there is no question but that any vio- 
 lation of either the person or property of such foreigner may be 
 punished by indictment in the name of the king, whose honor is 
 more particularly engaged in supporting his own safe-conduct. 
 
 11. As to the rights of ambassadors, which are also established 
 by the law of nations, and are therefore matter of universal con- 
 cern, they have formerly been treated of at large. It may here 
 
 57 
 
882 OFFENCES A GAINST THE LA W OF NA i TONS. 
 
 be sufficient to remark, that the common law of England recog- 
 nizes them in their full extent, by immediately stopping all legal 
 process sued out through the ignorance or rashness of individuals, 
 which may intrench upon the immunities of a foreign minister or 
 any of his train.' And, the more effectually to enforce the law 
 of nations in this respect, when violated through wantonness or 
 insolence, it is declared by the statute 7 Ann., ch. 12, that all 
 process whereby the person of any ambassador, or of his domes- 
 tic or domestic servant, may be arrested, or his goods distrained 
 or seized, shall be utterly null and void ; and that all persons 
 prosecuting, soliciting, or executing such process, being con- 
 victed by confession or the oath of one witness, before the lord 
 chancellor and the chief justices, or any two of them, shall be 
 deemed violators of the laws of nations, and disturbers of the 
 public repose ; and shall suffer such penalties and corporal pun- 
 ishment as the said judges, or any two of them shall think fit. 
 Thus, in cases of extraordinary outrage, for which the law hath 
 provided no special penalty, the legislature hath entrusted to the 
 three principal judges of the kingdom an unlimited power of pro- 
 portioning the punishment to the crime. 
 
 III. Lastly, the crime oi piracy, or robbery and depredation 
 upon the high seas, is an offence against the universal f law of 
 society; a pirate being according to Sir Edward Coke, hostis 
 humani generis. As therefore he has renounced all the benefits 
 of society and government, and has reduced himself afresh to 
 the savage state of nature, by declaring war against all mankind, 
 all mankind must declare war against him : so that every com- 
 munity hath a right, by the rule of self-defence, to inflict that 
 
 , 8 It is an established principle of international law, that ambassadors are 
 exempt from both the civil and criminal jurisdiction of the country to which 
 they are accredited, and are amenable only to the jurisdiction of their own 
 State. ' This is known as the doctrine of " exterritoriality.'' This exemption 
 extends also to the members of their household; Statutes have been passed 
 by Congress, in this country; to secure the inviolability of ambassadors 
 against violence, or the service of legal process, or against other violations of 
 their public privileges. These laws are enforced in the United States courts. 
 If an ambassador commits some gross or flagrant crime, the only, remedy of 
 the nation wherein he is resident in his official capacity is to send him beyond 
 its borders, and commit him to the jurisdiction of the courts of his own country. 
 The doctrine of exterritoriality does not apply fo consuls, unless by [force of. 
 treatj; stipulations. (See U. S. Rev. St, ,§§ 68/;, 4062-4064.) , , . 
 
OFFENCES A GAINST THE LA W OF NA TIONS. 883 
 
 punishment upon him, which every individual would in a state 
 of nature have been otherwise entitled to do, for any invasion of 
 his person or personal property. 
 
 The offence of piracy, by common law, consists in committing 
 those acts of robbery and depredation upon the high seas, which, 
 if committed upon land, would have amounted to felony there.' 
 But, by statute, some other offences are made piracy also : as by 
 statute 1 1 and 12 Wm. III., ch. 7, if any natural born subject com- 
 mits any act of hostility upon the high seas, against others of his 
 majesty's subjects, under color of a commission from any foreign 
 power ; this, thougly it would only be an act of war in an alien, 
 shall be construed piracy in a subject. And farther, any com- 
 mander, or other seafaring person, betraying his trust, and run- 
 ning away with any ship, boat, ordnance, ammunition, or goods ; 
 or yielding them up voluntarily to a pirate ; or conspiring to do 
 these acts ; or any person assaulting the commander of a vessel 
 to hinder him from fighting in defence of his ship, or confining 
 him, or making or endeavoring to make a revolt on board ; shall, 
 for each of these offences, be adjudged a pirate, felon, and robber. 
 By the statute 8 Geo. I., ch. 24, the trading with known pirates, 
 or furnishing them with stores or ammunition, or fitting out any 
 vessel for that purpose, or in any wise consulting, combining, 
 confederating, or corresponding with them : or the forcibly 
 boarding any merchant vessel, though without seizing or carrying 
 her off, and destroying or throwing any of the goods overboard, 
 shall be deemed piracy. Lastly, by statute 18 Geo. II., ch. 30, 
 any natural born subject or denizen, who in time of war shall 
 commit hostilities at sea against any of his fellow-subjects, or 
 shall assist an enemy on that element, is liable to be tried and 
 convicted as a pirate. 
 
 These are the principal cases, in which the statute law of 
 England mterposes to aid and enforce the law of nations, as a 
 part of the common law : by inflicting an adequate punishment 
 upon offences against that universal law, committed by private 
 persons. We shall proceed in the next chapter to consider of- 
 fences, which more immediately affect the sovereign executive 
 power of our own particular state, or the king and government; 
 * Various acts of Congress have been passed, prescribing what classes 
 of acts shall be deemed piracy. For details; reference should be made 
 to the United States Revised Statutes. 
 
iS84 OF HIGH TREASON. 
 
 which species of crime branches itself into a much larger extent 
 than eithei of those of which we have already treated. 
 
 CHAPTER V. 
 
 [bL. COMM. — BOOK IV., CH. VI.] 
 Of High Treason. 
 
 The third general division of crimes consists of such as moie 
 especially affect the supreme executive power, or the king and 
 his government ; which amount either to a total renunciation of 
 that allegiance, or at the least to a criminal neglect of that duty, 
 which is due from every subject to his sovereign. In the former 
 part of these commentaries we had occasion to mention the 
 nature of allegiance, as the tie or ligamen which binds every 
 subject to be true and faithful to his sovereign li^e lord the king, 
 in return for that protection which is afforded him ; and truth 
 and faith to bear of life and limb, and earthly honor ; and not to 
 know or hear of any ill intended him, without defending him 
 therefrom. And this allegiance, we may remember, was distin- 
 guished into two species : the one natural and perpetual, which 
 is inherent only in natives of the king's dominions ; the other 
 local and temporary, which is incident to aliens also. Every 
 offence therefore more immediately affecting the royal person, 
 his crown, or dignity, is in some degree a breach of this duty of 
 allegiance whether natural or innate, or local and acquired by 
 residence. 
 
 Treason, proditio, in its very name (which is borrowed from 
 the French) imports a betraying, treachery, or breach of faith 
 It therefore happens only between allies, saith the Mirror : foi 
 treason is indeed a general appellation, made use of by the law, 
 tc denote not only offences against the king and government, 
 but also that accumulation of guilt which arises whenever a su- 
 perior reposes a confidence in a subject or inferior, between 
 whom and himself there subsists a natural, a civil, or even a spir^ 
 itual relation : and the inferior so abuses that confidence, so for- 
 gets the obligations of duty, subjection, and allegiance, as to 
 
HIGH TREASON. 88 j 
 
 destroy the life of any such superior or lord. This is looked up- 
 on as proceeding from the same principle of treachery in private 
 life, as would have urged him who harbors it to have conspired 
 in public against his liege lord and sovereign, and therefore for 
 a wife to kill her lord or husband, a servant his lord or master, 
 and an ecclesiastic his lord or ordinary : these, being breaches 
 of the lower allegiance, of private and domestic faith, are denom- 
 inated petit treasons.' But when disloyalty so rears its crest, as 
 to attack even majesty itself, it is called by way of eminent dis- 
 tinction high treason, alta fro ditto ; being equivalent to the 
 crimen Icesce majestatis of the Romans, as Glanvil denominates it 
 also in our English law. 
 
 As this is the highest civil crime, which (considered as a 
 member of the community) any man can possibly commit, it 
 ought therefore to be the most precisely ascertained. For if the 
 crime of high treason be indeterminate, this alone (says the 
 president Montesquieu) is sufficient to make any government 
 degenerate into arbitrary power. And yet, by the ancient com- 
 mon law, there was a great latitude left in the breast of the 
 judges to determine what was treason, or not so : whereby the 
 creati res of tyrannical princes had opportunity to create abun 
 dance of constructive treasons ; that is, to raise, by forced and 
 arbitrary constructions, offences into the crime and punishment 
 of treason which never were suspected to be such. Thus the 
 accroaching, or attempting to exercise, royal power (a very un- 
 certain charge) was in the 21 Edw. III., held to be treason in a 
 knight of Hertfordshire, who forcibly assaulted and detained one of 
 the king's subjects till he paid him £,<)0 : a crime, it must be owned, 
 well deserving of punishment ; but which seems to be of a com- 
 plexion very different from that of treason. Killing the king's 
 father, or brother, or even his messenger, has also fallen under 
 the same denomination. The latter of which is almost as tyranni- 
 cal a doctrine as that of the imperial constitution of Arcadius and 
 Honorius, which determines that any attempts or designs against . 
 the ministers of the prince shall be treason. But, however, to pre- 
 vent the inconveniences which began to arise in England from 
 this multitude of constructive treasons, the statute 25 Edw. III., 
 ch. 2, was made ; which defines what offences only for the future 
 
 ' The crime of petit treason has been abolished in England, and is no 
 where recognized in the United States. 
 
886 HIGH TREASON. 
 
 should be held to be treason : in like manner as the lex yulitx 
 majestatis among the Romans promulged by Augustus C^sar, 
 comprehended all the ancient laws, that had before been enacted 
 to punish transgressors against the state. This statute must 
 therefore be our text and guide, in order to examine into the 
 several species of high treason. It comprehends all kinds of 
 high treason under seven distinct branches. [But we shall treat 
 only of those which are of chief importance.] 
 
 I. " When a man doth compass or imagine the death of our 
 lord the king, of our lady his queen, or of their eldest son and 
 heir." Under this description it is held that a queen regnant 
 (such as queen Elizabeth and queen Anne) is within the words 
 of the act, being invested with royal power, and entitled to the 
 allegiance of her subjects : but the husband of such a queen is 
 not comprised within these words, and therefore no treason can 
 be committed against Kim. The king here intended is the king 
 in possession, without any respect to his title : for it is held, that 
 a king de facto and not de jure, or, in other words, an usurper 
 that hath got possession of the throne, is a king within the mean- 
 ing of the statute : as there is a temporary allegiance due to 
 him, for his administration of the government, and temporary 
 protection of the public : and therefore treasons committed 
 against Henry VI. were punished under Edward IV., though all 
 the line of Lancaster had been previously declared usurpers by 
 act of parliament. But the most rightful heir of the crown, or 
 king dejure and not de facto, who hath never had plenary pos- 
 session of the throne, as was the case of the house of York dur- 
 ing the three reigns of the line of Lancaster, is not a king within 
 this statute, against whom treasons may be committed. And a 
 very sensible writer on the crown law carries the point of pos- 
 session so far, that he holds, that a king out of possession is so 
 far from having any right to our allegiance, by any other title 
 which he may set up against the king in being, that we are 
 bound by the duty of our allegiance to resist him (a). A doctrine 
 which he grounds upon the statute 1 1 Hen. VII., ch. i, which 
 is declaratory of the common law, and pronounces all subjects 
 excused from any penalty or forfeiture, which do assist and obey 
 a king de facto. But, in truth, this seems to be confounding all 
 notions of right and wrong ; and the consequence would be, that 
 when Cromwell had murdered the elder Charles, and usurped 
 (o) I Hawkins, Pleas of the Crown, 36. 
 
HIGH TREASON. 887 
 
 the power (though not the name) of king, the people were bound 
 in duty to hinder the son's restoration : and were the king of 
 Poland or Morocco to invade this kingdom, and by any means to 
 get possession of the crown (a term, by the way, of very loose 
 and indistinct signification), the subject would be bound by his 
 allegiance to fight for his natural prince to-day, and by the same 
 dfty of allegiance to fight against him to-morrow. The true distinc- 
 tion seems to be, that the statute of Henry the Seventh does by no 
 means command any opposition to a king de jure ; but excuses 
 the obedience paid to a king de facto. When therefore an usurper 
 is in possession, the, subject is excused and justified in obeying 
 and giving his assistance : otherwise, under an usurpation, rio' 
 man could be safe : if the lawful prince had a right to hang hirii 
 for obedience to the powers in being, as the usurper would cer- 
 tainly do for disobedience. Nay, further, as the mass of people 
 are imperfect judges of title, of which in all cases possession is 
 prima facie evidence, the law compels no man to yield obedience 
 to that prince, whose right is by want of possession rendered 
 uncertain and disputable, till Providence shall think fit to inter- 
 pose in his favor, and decide the ambiguous claim : and there- 
 fore, till he is entitled to such allegiance by possession, no trea- 
 son can be committed against him. Lastly, a king who has re- 
 signed his crown, such resignation being admitted and ratified 
 in parliament, is according to Sir Matthew Hale no longer the 
 object of treason. And the same reason holds, in case a king 
 abdicates the government ; or, by actions subversive of the con- 
 stitution, virtually renounces the authority which he claims by 
 that very constitution : since, as was formerly observed, when 
 the fact of abdication is once established, and determined by the 
 proper judges, the consequence necessarily follows, that the 
 throne is thereby vacant, and he is no longer king. 
 
 Let us next see, what is a compassing or imagining the death 
 of the king, &c. These are synonymous terms ; the word com- 
 pass signifying the purpose or design of the mind or will, and 
 not, as in common speech, the carrying such design to effect. 
 And therefore an accidental stroke, which may mortally wound 
 the sovereign, per ittfortunium, without any traitorous intent, is no 
 treason : as was the case of Sir Walter Tyrrel, who, by the com- 
 mand of King William Rufus, shooting at a hart, the arrow 
 glanced against a tree, and killed the king on the spot. But, aa 
 
888 HIGH TREASON. 
 
 this compassing or imagining is an act of the mind, it cannot 
 possibly fall under any judicial cognizance, unless it be demon- 
 strated by some open, or overt act. And yet the tyrant Dion- 
 ysius is recorded to have executed a subject, barely for dreaming 
 that he had killed him ; which was held of sufficient proof, that he 
 had thought thereof in his waking hours. But such is not the temper 
 of the English law ; and therefore in this, and the three next 
 species of treason, it is necessary that there appear an open or 
 overt act of a more full and explicit nature, to convict the traitor 
 upon. The statute expressly requires, that the accused "be 
 thereof upon sufficient proof attainted of some open act by men 
 of his own condition." Thus, to provide weapons or ammuni- 
 tion for the purpose of killing the king, is held to be a palpable 
 overt act of treason in imagining his death. To conspire to im- 
 prison the king by force, and move towards it by assembling 
 company, is an overt act of compassing the king's death ; for all 
 force, used to the person of the king, in its consequence may 
 tend to his death, and is a strong presumption of something 
 worse intended than the present force, by such as have so far 
 thrown off their bounden duty to their sovereign ; it being an 
 old observation, that there is generally but a short interval be- 
 tween the prisons and the graves of princes. There is no ques- 
 tion also, but that taking any measures to render such treason- 
 able purposes effectual, as assembling and consulting on the 
 means to kill the king, is a sufficient overt act of high treason. 
 
 How far mere words, spoken by an individual, and not rela- 
 tive to any treasonable act or design then in agitation, shall 
 amount to treason, has been formerly matter of doubt. We have 
 two instances in the reign of Edward the Fourth, of persons 
 executed for treasonable words ; the one a citizen of London, 
 who said he would make his son heir of the crown, being the sign 
 of the house in which he lived ; the other a gentleman,whose favor- 
 ite buck the king killed in hunting, whereupon he wished it, 
 horns and all, in the king's belly. These were esteemed hard 
 cases : and the chief justice Markham rather chose to leave his 
 place than assent to the latter judgment. But now it seems 
 clearly to be agreed, that by the common law and the statute of 
 Edward III. words spoken amount to only a high misdemeanor, 
 and no treason. For they may be spoken in heat, without any 
 intention, or be mistaken, perverted, or mis-remembered by the 
 
HIGH TREASON. 889 
 
 hearers ; their meaning depends always on their connection with 
 other words and things ; they may signify differently even 
 according to the tone of voice with which they are delivered ; 
 and sometimes silence itself is more expressive than any dis- 
 course. As therefore there can be nothing more equivocal and 
 ambiguous than words, it would indeed be unreasonable to make 
 them amount to high treason. And accordingly in 4 Car. I. on 
 a reference to all the judges, concerning some very atrocious 
 words spoken by one Pyne, they certified to the king, " that 
 though the words were as wicked as might be, yet they were no 
 treason : for unless .it be by some particular statute, no words 
 will be treason." If the words be set down in writing, it argues 
 more deliberate intention : and it has been held that writing is 
 an overt act of treason ; for scribere estagere. But even in this case 
 the bare words are not the treason, but the deliberate act of writ- 
 ing them. And such writing, though unpublished, has in some 
 arbitrary reigns convicted its author of treason : particularly in 
 the cases of one Peachum, a clergyman, for treasonable passages 
 . in a sermon nevei- preached ; and of Algernon Sydney, for some 
 papers found in his closet ; which, had they been plainly relative 
 to any previous formed design of dethroning or murdering the 
 king, might doubtless have been properly read in evidence as 
 overt acts of that treason, which was specially laid in the indict- 
 ment. But being merely speculative, without any intention (so 
 far as appeared) of making any public use of them, the convict- 
 ing the authors of treason upon such an insufificient foundation 
 has been universally disapproved. Peachum was therefore par- 
 doned : and though Sydney indeed was executed, yet it was to 
 the general discontent of the nation ; and his attainder was after- 
 wards reversed by parliament. There was then no manner of 
 doubt, but that the publication of such a treasonable writing was 
 a sufficient overt act of treason at the common law ; though of 
 late even that has been questioned. 
 
 2. The second species of treason is, " if a man do violate the 
 king's companion, or the king's eldest daughter unmarried, or 
 the wife of the king's eldest son and heir." By the king's com- 
 panion is meant his wife ; and by violation is understood carnal 
 knowledge, as well without force, as with it : and this is high 
 treason in both parties, if both be consenting ; as some of the 
 wives of Henry the Eighth by fatal experience evinced. The 
 
8go HIGH TREASON. 
 
 plain intention of this law is to guard the blood royal fr.5m any 
 suspicion of bastardy, whereby the succession to the crown might 
 be rendered dubious : and therefore, when this reason ceases, the 
 law ceases with it ; for to violate a queen or princess-dowager is 
 held to be no treason ; in like manner as, by the feudal law, it 
 was a felony and attended with a forfeiture of the fief, if the vas- 
 sal vitiated the wife or daughter of his lord, but not so if he only 
 vitiated his widow. 
 
 3. The third species of treason is, " if a man do levy war against 
 our lord the king in his realm." And this may be done by tak- 
 ing arms, not only to dethrone the king, but under pretence to 
 reform religion, or the laws, or to remove evil counsellors, or 
 other grievances- whether real or pretended. For the law does 
 not, neither can it, permit any private man, or set of men, to in- 
 terfere forcibly in matters of such high importance ; especially 
 as it has established a suiScient power, for these purposes, in the 
 high court of parliament: neither does the constitution justify 
 any private or particular resistance for private or par- 
 ticular grievances ; though in cases of national oppression . 
 the nation has very justifiably risen as one man to vindi- 
 cate the original contract subsisting between the king and 
 his people. To resist the king's forces by defending a castle 
 against them, is a levying of war : and so is an insurrection with 
 an avowed design to pull down all inclosures, all brothelg, and 
 the like ; the universality of the design making it a rebellion 
 against the state, an usurpation of the powers of government, 
 and an insolent invasion of the king's authority. But a tumult, 
 with a view to pull down a particular house, or lay open a par- 
 ticular inclosure, amounts at most to a riot ; this being no gen- 
 eral defiance of public government. So, if two subjects quarrel 
 and levy war against each other (in that spirit of private war, 
 which prevailed all over Europe in the early feudal times), it is 
 only a great riot and contempt, and no treason. Thus it happened, 
 between the Earls of Hereford and Gloucester in 20 Edward I. 
 who raised each a little army, and committed outrages upon each 
 other's lands, burning houses, attended with the loss of many 
 lives : yet this was held to be no high treason, but only a great 
 misdemeanor. A bare conspiracy to levy war does not amount to 
 this species of treason ; but (if particularly pointed at the per- 
 son of the king or his government) it falls within the first, of 
 compassing or imagining the king's death. 
 
HIGH TREASON, 8gi 
 
 4. " If a man be adherent to the king's enemies in his realm, 
 giving to them aid and comfort in the realm, or elsewhere," he is 
 also declared guilty of hi'gh treason.'' This must likewise be 
 proved by some overt act, as by giving them intelligence, by 
 sending them provisions, by selling them arms, by treacherously 
 surrendering a fortress, or the like. By enemies are here under- 
 
 2 In this country, treason may be be committed either against the United 
 States, or against a particular State. The United States Constitution defines 
 the offense as follows : " Treason against the United States shall consist 
 only in levying war against them, or in adhering to their enemies, giving 
 them aid and comfort. No person shall be convicted of treason, unless on 
 the testimony of two witnesses to the same overt act, or on confession in 
 open court." (Art. 3, § 3.) The only forms of treason, therefore, which are 
 recognized, correspond to the third and fourth species mentioned in the text 
 The phraseology of this constitutional provision was adopted from the Eng- 
 lish law, and the expressions used have received substantially the same in- 
 terpretation. To " levy war " is to raise, make, create, or carry on war. It 
 is not necessary that there should be an actual prosecution of hostilities ; but 
 if there be a body of men actually assembled for the purpose of effecting a 
 treasonable purpose by force, this is a sufficient levying of war. A mere 
 conspiracy to subvert the government will not be sufficient; but there must 
 be a combination or gathering of men, who design to effect some object of a 
 public and general nature, by a resort to the use of force against the public 
 authorities or troops, and who present a forcible or warlike appearance. It 
 is not necessary that they should be supplied with arms ; it is sufficient that 
 there be an assemblage in force, — a military assemblage in a condition to make 
 war. But if war be actually levied, that is, if a body of men be actually as- 
 sembled for the purpose of effecting, by force, a treasonable purpose, all 
 those who perform any part, however minute, or however remote from the 
 scene of action, and who are actually leagued in the general conspiracy, are 
 to be considered as traitors. {Ex parte Bollman, 4 Cranch, 75 ; U. S. v. 
 Burr, 4 Cranch, 481 ; If. S. v. Hanway, 2 Wallace, jr. 144) 
 
 "What amounts to adhering to, and giving aid and comfort to our 
 enemies, it is somewhat difficult in all cases to define ; but certam it is, that 
 furnishing them with arms, or munitions of war, vessels, or other means of 
 transportation, or any materials which will aid the traitors in carrying out 
 their traitorous purposes with a knowledge that they are intended for such 
 purposes ; or inciting and encouraging others to engage in, or aid the traitors 
 in any way, does come within the provisions of the act. And it is immaterial 
 whether such acts are induced by sympathy -with the rebellion, hostility to 
 the government, or a desire for gain." (Per Smalhy, J., 23 Law Reporter, 
 597j 6oI') But rendering aid to domestic rebels does not come within the 
 •cope of this provision. 
 
 The constitutional and statutory provisions in the several States, defining 
 the offense of treason against such States respectively, are generally identi 
 cal m terras with the provisions in the United States Constitution. 
 
892 HIGH TREASON. 
 
 stood the subjects of foreign powers with whom we are at open 
 war. As to foreign pirates or robbers, who may happen to in- 
 vade our coasts, without any open hostilities between their nation 
 and our own, and without any commission from any prince or 
 state at enmity with the crown of Great Britain, the giving them 
 any assistance is also clearly treason ; either in the light of ad- 
 hering to the public enemies of the king and kingdom, or else in 
 that of levying war against His Majesty. And, most indisputably, 
 the same acts of adherence or aid, which (when applied to foreign 
 enemies) will constitute treason under this branch of the statute, 
 will (when afforded to our own fellow-subjects in actual rebellion 
 at home) amount to high treason under the description of levy- 
 ing war against the king. But to relieve a rebel, fled out of the 
 kingdom, is no treason : for the statute is taken strictly, and a 
 rebel is not an enemy : an enemy being always the subject of 
 some foreign prince, and one who owes no allegiance to the 
 crown of England. And if a person be under circumstances of 
 actual force and constraint, through a well-grounded apprehension 
 of injury to his life or person, this fear or compulsion will excuse 
 his even joining with either rebels or enemies in the kingdom, 
 provided he leaves them whenever he hath a safe opportunity. 
 
 Thus much for the crime of treason, or /<zs<z majestatis, 
 which consists, we may observe, originally, in grossly counteract- 
 ing that allegiance which is due from the subject by either birth 
 or residence ; though, in some instances, the zeal of our legisla- 
 tors to stop the progress of some highly pernicious practices has 
 occasioned them a little to depart from this its primitive idea. 
 But of this enough has been hinted already : it is now time to 
 pass on from defining the crime to describing its punishment. 
 
 The punishment of high treason in general is very solemn 
 and terrible, i. That the offender be drawn to the gallows, and 
 not be carried or walk : though usually (by connivance at length 
 ripened by humanity into law) a sledge or hurdle is allowed, to 
 preserve the offender from the extreme torment of being dragged 
 on the ground or pavement. 2. That he be hanged by the neck, 
 and then cut down alive. 3. That his entrails be taken out and 
 burned, while he is yet alive. 4. That his head be cut off. 5- 
 That his body be divided into four parts. 6. That his head and 
 quarters be at the king's disposal. 
 
 The king may and often doth, discharge all the punishment. 
 
OF FELONIES. 893 
 
 except beheading, especially where any of noble blood are at- 
 tainted. For beheading, being part of the judgment, that may be 
 executed, though all the rest be omitted by the king's command. 
 But where beheading is no part of the judgment, as in murder or 
 other felonies, it hath been said that the king cannot change the 
 judgment, although at the request of the party, from one species 
 of death to another. But of this we shall say more hereafter. 
 
 But in treasons of every kind the punishment of woman is 
 the same, and different from that of men. For as the decency 
 due to the sex forbids the exposing and publicly mangling their 
 bodies, their sentence (which is to the full as terrible to sensation 
 as the other) is to be drawn to the gallows, and there to be burned 
 alive.' 
 
 The consequence of this judgment (attainder, forfeiture, and 
 corruption of blood) must be referred to the latter end of this 
 book, when we shall treat of them all together, as well in treason 
 as in other offences. 
 
 CHAPTER VI. 
 
 [bL. COMM. BOOK IV. CH. VII.] 
 
 Of Felonies. 
 
 Felony in the general acceptation of our English law, com- 
 prises every species of crime, which occasioned at common law 
 the forfeiture of lands and goods.^ This most frequently hap- 
 pens in those crimes, for which a capital punishment either is or 
 
 " Treason is still punishable in England with the death penalty; but the 
 barbarous methods of inflicting this punishment, mentioned in the text, have 
 been abolished. The offender is now to be hanged by the neck till dead 
 and the penalty is the same for women as for men. 
 
 In the United States, an act of Congress, passed in 1790, prescribed the 
 penalty of death for treason. And, by act of July 17, 1862, the penalty ol 
 fine and imprisonment, together with the liberation of slaves be.onging to 
 the person convicted, was prescribed as a mode of punishment, — which, in 
 the discretion of the court, might be imposed instead of the death penalty. 
 
 1 As to the sign fication of " felony," in American law, see ante, page, 846, 
 note 2. 
 
894 OF FELONIES. 
 
 was liable to be inflicted : for those felonies which are called cler 
 gyable, or to which the benefit of clergy extends, were anciently 
 punished with death, in all lay, or unlearned offenders ; though 
 now by the statute-law that punishment is for the first offence 
 universally remitted. Treason itself, says Sir Edward Coke, was 
 anciently comprised under the name felony : and in confirmation 
 of this we may observe that the statute of treasons, 25 Edw. III. 
 eh. 2, speaking of some dubious crimes, directs a reference to 
 parliament; that it may there be adjudged, "whether they be 
 treason or other felony." All treasons therefore, strictly speaking, 
 are felonies ; though all felonies are not treason. And to this 
 also we may add, that not only all offences, now capital, are in 
 some degree or other felony ; but that this is likewise the case 
 with some other offences, which are not punished with death ; 
 as suicide, where the party is already dead ; homicide by chance- 
 medley, or in self-defence ; and petit larceny or pilfering : all 
 which are (strictly speaking) felonies, as they subject the com- 
 mitters of them to forfeitures. So that upon the whole the only 
 adequate definition of felony seems to be that which is before 
 laid down ; viz., an offence which occasions a total forfeiture of 
 either lands, or goods, or both, at the common law, and to which 
 capital or other punishment may be superadded, according to the 
 degree of guilt. 
 
 To explain this matter a little farther : the -^orA. felony or felo- 
 nia, is of undoubted feudal original, being frequently to be met 
 with in the books of feuds, &c. ; but the derivation of it has 
 much puzzled the juridical lexicographers, Prateus, Calvlnus, 
 and the rest : some deriving it from the Greek iprjXo:;, an impostor 
 or deceiver ; others from the IjsAxsx fallo, fefelli, to countenance 
 which they would have it cdll&d fallonia. Sir Edward Coke, as 
 his manner is, has given us a still stranger etymology ; that it is 
 crimen animofelleo perpetrattinty^Nilh a bitter or gallish inclination. 
 But all of them agree in the description, that it is such a crime 
 as occasions a forfeiture of all the offender's lands or goods. And 
 this gives great probability to Sir Henry Spelman's Teutonic 01 
 German derivation of it: in which language indeed, as the word 
 is clearly of feudal original, we ought rather to look for its sig- 
 nification, than among the Greeks and Romans. Fe-lon then, 
 according to him, is derived from two northern words : fee, which 
 signifies (we well know) the fief, feud, or beneficiary estate : and 
 
OF FELONIES. 895 
 
 Ion, which signifies price or value. Felony is therefore the same as 
 pretium feudi, the consideration for which a man gives up his 
 fief ; as we say in common speech, such an act is as much as your 
 life or estate is worth. In this sense it will clearly signify the 
 feudal forfeiture, or act by which an estate is forfeited or escheats 
 to the lord. 
 
 To confirm this we may observe, that it is in this sense, of 
 forfeiture to the lord, that the feudal writers constantly use it 
 For all those acts, whether of a criminal nature or not, which at 
 this day are generally forfeitures of copyhold estates are styled 
 felonia in the feudal law. So likewise inj uries of a more substan- 
 tial or criminal nature were denominated felonies, that is, forfeit- 
 ures : as assaulting or beating the lord ; vitiating his wife or 
 daughter ; all these are esteemed felonies, and the latter is ex- 
 pressly so denominated. And as these contempts, or smaller 
 offences, were felonies, or acts of forfeiture, of course greater 
 crimes, as murder and robbery, fell under the same denomination. 
 On the other hand, the lord might be guilty of felony, or forfeit 
 his seignory to the vassal, by the same acts as the vassal would 
 have forfeited his feud to the lord. One instance given of this 
 sort of felony in the lord is beating the servant of his vassal, so 
 as that he loses his services ; which seems merely in the nature 
 of a civil injury, so far as it respects the vassal. And all these 
 felonies were to be determined ^^ per laiidamentum sive judicium 
 patiuni suorum " in the lord's court ; as with us forfeitures of 
 copyhold lands are presentable by the homage in the court-baron. 
 
 Felony, and the act of forfeiture to the lord, being thus synon- 
 ymous terms in the feudal law, we may easily trace the reason 
 why, upon the introduction of that law into England, those crimes 
 which induced such forfeiture or escheat of lands (and, by small 
 deflection from the original sense, such as induced the forfeiture 
 ot goods also) were denominated felonies. Thus it was said, 
 that suicide, robbery, and rape, were felonies ; that is, the conse- 
 quence of such crimes was forfeiture ; till by long use we began 
 to signify by the term of felony the actual crime committed, and 
 not the penal consequence. And upon this system onlj' can we 
 account for the cause, why treason in ancient times was held to 
 be a species of felony : viz., because it induced a forfeiture. 
 
 Hence it follows, that capital punishment does by no means 
 enter into the true idea and definitioi. of felony. Fe'ony may be 
 
896 OF hRLONIES. 
 
 without inflicting capital punishment, as in the cases instancea 
 of self-murder, excusable homicide, and petit larceny : and it is 
 possible that capital punishments may be inflicted, and yet the 
 offence be no felony ; as in case of heresy by the common law, 
 which, though capital, never worked any forfeiture of lands or 
 goods, an inseparable incident to felony. And of the same nature 
 was the punishment of standing mute, without pleading to an in- 
 dictment, which at the common law was capital, but without any 
 forfeiture, and therefore such standing mute was no felony. In 
 short, the true criterion of felony is forfeiture ; for, as Sir Edward 
 Coke justly observes, in all felonies which are punishable with 
 death, the offender loses all his lands in fee-simple, and also his 
 goods and chattels ; in such as are not so punishable, his goods 
 and chattels only. 
 
 The idea of felony is indeed so generally connected with that 
 of capital punishment, that we find it hard to separate them ; and 
 to this usage the interpretations of the law do now conform. 
 And therefore if a statute makes any new offence felony, the 
 law implies that it shall be punished with death, viz., by hanging 
 as well as with forfeiture : unless the offender prays the benefit 
 of clergy ; which all felons are entitled onc« to have, provided 
 the same is not expressly taken away by statute. And in com- 
 pliance herewith, I shall for the future consider it also in the 
 same light, as a generical term, including all capital crimes below 
 treason ; having premised thus much concerning the true nature 
 and original meaning of felony, in order to account for the reason 
 of those instances I have mentioned, of felonies that are not cap- 
 ital, and capital offences that are not felonies : which seem at 
 first view repugnant to the general idea which we now entertain 
 of felony, as a crime to be punished by death : whereas properly 
 it is a crime to be punished by forfeiture, and to which death 
 may, or may not be, though it generally is, superadded. 
 
OF MISPRISIONS A ND CO NT EM r TS, E TC. 897 
 CHAPTER VII. 
 
 [bL. COMM. — BOOK IV. CH. IX.J 
 
 Of Misprisions and Contempts Affecting the King and Government. 
 
 The fourth species of offences more immediately against the 
 king and government, are entitled misprisions and contempts. 
 
 Misprisions (a term derived from the old P'rench, mespris, a 
 neglect or contempt) are, in the acceptation of our law, generally 
 understood to be all such high offences as are under the degree 
 of capital, but nearly bordering thereon : and it is said, that a 
 misprision is contained in every treason and felony whatsoever ; 
 and that if the king so please, the offender may be proceeded 
 against for the misprision only. And upon the same principle, 
 while the jurisdiction of the Star Chamber subsisted, it was held 
 that the king might remit a prosecution for treason, and cause 
 the delinquent to be censured in that court, merely for a high 
 misdemeanor : as happened in the case of Roger, Earl of Rutland, 
 in 43 Eliz., who was concerned in the Earl of Essex's rebellion. 
 Misprisions are generally divided into two sorts : negative, which 
 "onsist in the concealment of something which ought to be 
 •evealed ; and positive, which consist in the commission of some- , 
 tning which ought not to be done. 
 
 I. Of the first, or negative kind, is what is called misprision 
 of treason; consisting in the bare knowledge and concealment of 
 treason, without any degree of assent thereto : for any assent 
 makes the party a principal traitor ; as indeed the concealment, 
 which was construed aiding and abetting, did at the common 
 law : in like manner as the knowledge of a plot against the state, , 
 and not revealing it, was a capital crime at Florence and other 
 states of Italy. But it is now enacted by the statute i & 2 Ph.^ 
 & M., ch. 10, that a bare concealment of treason shall be only 
 held a misprision. This concealment becomes criminal, if the 
 party apprised of the treason does not, as soon as conveniently 
 may be, reveal it to some judge of assize or justice of the peace. ' 
 But if there be any probable circumstances of assent, as il one 
 goes to a treasonable meeting, knowing beforehand that a con 
 
 ■58 
 
898 OF MISPRISIONS AND CONTEMP TS 
 
 spiracy is intended against the king ; or, being in such company 
 once by accident, and having heard such treasonable conspiracy, 
 meets the same company again, and hears more of it, but con- 
 ceals it ; this is an implied assent in law, and makes the con- 
 cealer guilty of actual high treason.^ 
 
 Misprision of felony is also the concealment of a felony which 
 a man knows, but never assented to ; for if he assented, this 
 makes him either principal or accessory. And the punishment 
 of this, in a public officer, by the statute Westm. i, 3 Edw. I., 
 ch. 9, is imprisonment for a year and a day ; in a common per- 
 son, imprisonment for a less discretionary time ; and, in both, 
 fine and ransom at the king's pleasure ; which pleasure of the 
 king must be observed, once for all, not to signify any extrajudi- 
 cial will of the sovereign, but such as is declared by his repre- 
 sentatives, the judges in his courts of justice: '^voluntas regis hi 
 curia, non in camera^ 
 
 There is also another species of negative misprisions ; namely, 
 the concealing of treasiwe-trove, which belongs to the king or his 
 grantees by prerogative royal : the concealment of which was 
 formerly punishable by death ; but now only by fine and impris- 
 onment. 
 
 II. Misprisions, which are merely positive, are generally de- 
 nominated contempts or high misdemeanors ; ^ of which 
 
 I. The first and principal is the mal-administration of such 
 high officers, as are in public trust and employment. This is 
 usually punished by the method of parliamentary impeachment ; ' 
 
 ' An act of Congress declares it to be misprision of treason, if any per- 
 son having knowledge of the commission of any treason against the United 
 States, " shall conceal, and not, as soon as may be, disclose and make known 
 the same to the President of the United States, or some one of the judges 
 thereof, or to the President or Governor of a particular State, or some one of 
 the judges or justices thereof." (U. S. Rev. St. t^ 5333.) 
 
 ^ The term " misprision," is most commonly used in criminal law, in its 
 negative sense, denoting the concealment of treason or felony. Such crimes 
 as are denominated " positive misprisions " by Blackstone, would generally be 
 considered and treated as substantive offenses. 
 
 8 It is provided, by the United States Constitution, that the President, Vice- 
 President, and all civil officers of the United States, shall be removo-d from 
 office on impeachment for, and conviction of, treason, bribery, or other high 
 crimes and misdemeanors. (Art. 2, § 4.) Impeachments are tried by the 
 Senate, upon presentation by the House of Representatives. When the 
 President is impeached, the Chief-Justice of the Supreme Court pres'des 
 
AFFECTING THE KING AND GOVERNMENT. 8-^9 
 
 wherein such penalties, short of death, are inflicted, as to the 
 wisdom of the peers shall seem proper ; consisting usually of 
 banishment, imprisonment, fines, or perpetual disability. Other 
 misprisions are, in general, such contempts of the executive mag- 
 istrate, as demonstrate themselves by some arrogant and undu- 
 tiful behavior towards the king and government These are 
 
 2. Contempts against the ^ing' s prerogative. As, by refusing 
 to assist him for the good of the public : either in his councils, 
 by advice, if called upon ; or in his wars, by personal service for 
 defence of the realm, against a rebellion or invasion. Under 
 which class may be ranked the neglecting to join the posse comi- 
 tattis, or power of the county, being thereunto required by the 
 sheriff or justices. Or, by disobeying the king's, lawful com- 
 mands ; whether by writs issuing out of his courts of justice, or 
 by summons to attend his privy council, or by letters from the 
 king to a subject, commanding him to return from beyond seas 
 (for disobedience to which his lands shall be seized till he does 
 return, and himself afterwards punished), or by his writ of ne 
 exeat regnum, or proclamation, commanding the subject to stay 
 at home. Disobedience to any of these commands is a high 
 misprision and contempt ; and so, lastly, is disotedience to any 
 act of parliament, where no particular penalty is assigned ; for 
 then it is punishable, like the rest of these contempts, by fine 
 and imprisonment, at the discretion of the king's courts^ of justice 
 
 3. Contempts against the king's palaces or tourts of justice, 
 have been always looked upon as high misprisions. 
 
 But striking in the king's superior courts of justice, in West- 
 minster-hall, or at the assizes, is made still more penal than even 
 in the king's palace. The reason seems to be, that those courts 
 being anciently held in the king's palace, and before the king 
 himself, striking there included the former contempt against the 
 king's palace, and something more; viz., the disturbance of 
 public justice. Therefore a stroke or blow in such a court of 
 
 over the Senate. The concurrence of two-thirds of the members present is 
 necessary to conviction. Judgment extends no further than to removal from 
 office, and disqualification to hold and enjoy any ofBce of honor, trust or 
 profit under the United States ; but the party convicted is liable to indictment 
 according to law. 
 
 In the various States, provision is made for the trial of impeachments of 
 ?tate officers before the Senate, or highest legislative body of the State. 
 
900 OF MISPRISIONS AND CONTEMPTS, ETC. 
 
 justice, whether blood be drawn or not, or even assaulting a 
 judge sitting in the court, by drawing a weapon, without any 
 blow struck, is punishable with the loss of the right hand, impris- 
 onment for life, and forfeiture of goods and chattels, and of the 
 profits of his lands during life. A rescue also of a prisoner firom 
 any of the said courts, without striking a blow, is punished with 
 perpetual imprisonment, and forfeiture of goods, and of the 
 profits of lands during life ; being looked upon as an offence of 
 the same nature with the last ; but only, as no blow is actually 
 given, the amputation of the hand is excused. For the like rea- 
 son, an affray, or riot, near the said courts, but out of their actual 
 view, is punished only with fine and imprisonment. 
 
 Not only such as are guilty of an actual violence, but of 
 threatening or reproachful words to any judge sitting in the 
 courts, are guilty of a high misprision, and have been punished 
 with large fines, imprisonment, and corporal punishment. And, 
 even in the inferior courts of the king, an affray or contemp- 
 tuous behavior is punishable with a fine by the judges there 
 sitting. 
 
 Likewise all such as are guilty of any injurious treatment to 
 those who are immediately under the protection of a court of 
 justice, are punishable by fine and imprisonment : as if a man 
 assaults or threatens his adversary for suing him, a counsellor or 
 attorney for being employed against him, a juror for his verdict, 
 or a jailer or other ministerial officer for keeping him in cus- 
 tody, and properly executing his duty. 
 
 Lastly, to endeavor to dissuade a witness from giving evi- 
 dence ; to disclose an examination before the privy council (all 
 of which are impediments of justice) ; are high misprisions, and 
 contempts of the king's courts, and punishable by fine and im- 
 prisonment. And anciently it was held, that if one of the grand 
 jury disclosed to any person indicted, the evidence that appeared 
 against him, he was thereby made accessory to the offence, if 
 felony ; and in treason a principal. And at this day it is agreed, 
 that he is guilty of a high misprision, and liable to be fined and 
 imprisoned.* 
 
 * The penalties for these vaiious offences have been much reduced in 
 severity by subsequent English legislation. These various classes of acts, 
 interfering with the regular and orderly administration of justice, are gener- 
 ally declared punishable in this country as contempts of court, or as misde 
 meanors. 
 
OF OFFENCES A GAINS T P UBLIC JUSTICE. 901 
 
 CHAPTER VIII. 
 
 [bL. COMM. — BOOK IV. CH. X.] 
 Of Offences against Public yustice. 
 
 The crimes and misdemeanors that more especially affect the 
 commonwealth, may be. divided into four species : ot>., offences 
 against public justict.. against the public peace, against public 
 trade, and against the public police or economy ; of each of which 
 we will take a cursory view in their order. 
 
 First, then, of offences against ^vi}a\\Q. justice : some of which 
 are felonious, whose punishment may extend to death ; others 
 only misdemeanors. I shall begin with those that are most 
 penal, and descend gradually to such as are of less malignity. 
 
 I. One offence against public justice is odstructitz^ the exe- 
 cution of lawiul process. This is at all times an offence of a very 
 high and presumptuous nature ; but more particularly so, when 
 it is an obstruction of an arrest upon criminal process. And it 
 hath been holden, that the party opposing such arrest becomes 
 thereby particeps criminis ; that is, an accessory in felony, and a 
 principal in high treason. Formerly one of the greatest ob- 
 structions to public justice, both of the civil and criminal kind, 
 was the multitude of pretended privileged places, where indigent 
 persons assembled together to shelter themselves from justice 
 (especially in London and Southwark), under the pretext of their 
 having been ancient palaces of the crown, or the like : all of 
 which sanctuaries for iniquity are now demolished, and the op- 
 posing of any process therein is made highly penal, by statute. ' 
 
 'It is now provided by statute 24 & 25 Vict., ch. 100, that whosoever 
 'shall assault, resist or wilfully obstruct any peace officer in the due execu- 
 lion of his duty, or any person acting in aid of such officer, or shall assault 
 My person with intent to resist or prevent the lawful apprehension or de- 
 tamer of himself, or of any other person for any offence," shall be guilty oi 
 a misdemeanor. Statutes of similar character are in force in the several 
 States of this country. 
 
 It is an additional rule of the common law, that the wilful refusal to aid 
 » Jieace officer in the execution of his duty, in order to preserve the peacei 
 's aa indictable misdemeanor. 
 
902 OF OFFENCES A GA [NS T P UBLIC JUS TICb. 
 
 2. An escape of a person arrested upon criminal process by 
 eluding the vigilance of his keepers before he is put in hold, ia 
 also an offence against public justice, and the party himself is 
 punishable by nne or imprisonment. But the officer permitting 
 such escape, either by negligence or connivance, is much more 
 culpable than the prisoner ; the natural desire of liberty pleading 
 strongly in his behalf, though he ought in strictness of law to 
 submit himself quietly to custody, till cleared by the due course 
 of justice. Officers therefore who, after arrest, negligently per- 
 mit a felon to escape, are also punishable by fine : but voluntary 
 escapes, by consent and connivance of the officer, are a much 
 more serious offence : for it is generally agreed that such escapes 
 amount to the same kind of offence, and are punishable in the 
 same degree as the offence of which the prisoner is guilty, and 
 for which he is in custody, whether treason, felony, or trespass. 
 And this whether he were actually committed to jail, or only 
 under a bare arrest. But the officer cannot be thus punished, 
 till the original delinquent hath actually received judgment or 
 been attainted upon verdict, confession, or outlawry, of the 
 crime for which he was so committed or arrested : otherwise it 
 might happen, that the officer might be punished for treason or 
 felony, and the person arrested and escaping might turn out to 
 be an innocent man. But, before the conviction of the principal 
 party, the officer thus neglecting his duty may be fined and im 
 prisoned for a misdemeanor.'' 
 
 3. Breach of prison by the offender himself, when committed 
 for any cause, was felony at the common law : or even conspir- 
 ing to break it. But this severity is mitigated by the statute de 
 
 frangentibus prisonam, i Edw. XL, st. 2, which enacts, that no per- 
 son shall havejudgment of life or member for breaking prison un- 
 less committed for some capital offence.' So that to break prison 
 and escape, when lawfully committed for any treason or felony, 
 remains still felony as at the common law ; and to break prison 
 
 2 There are specific statutes, in many of the States, prescribing the pun- 
 ishment for this offence of escape. The following cases may be consulted : 
 People V. Duell, 3 Johns. 449 ; People v. Rose, 12 Johns. 339 ; People v. Tomp 
 kins, 9 Johns. 70; Cotnin. v. Farrell, 5 Allen, 130. 
 
 ' This statute is deemed to be part of the common law in the United 
 States, unless superseded by other legislation upon this subject. But special 
 statutes are in force, in many of the States, in relation to this offence. 
 
OF OFFENCES A GAINST PUBLIC JUS FICE. 903 
 
 (whether it be the county-jail, the stocks, or other usual place 
 of security), when lawfully confined upon any other inferior 
 charge, is still punishable as a high misdemeanor by fine and 
 imprisonment. For the statute which ordains that such offence 
 shall be no longer capital, never meant to exempt it entirely from 
 every degree of punishment. 
 
 4. Rescue is the forcibly and knowingly freeing another from 
 an arrest or imprisonment, and it is generally the same offence 
 in the stranger so rescuing, as it would have been in a jailer to 
 have voluntarily permitted an escape. A rescue therefore of one 
 apprehended for felgny, is felony ; for treason, treason ; and for 
 a misdemeanor, a misdemeanor also. But here Ifkewise as upon 
 voluntary escapes, the principal must first be attainted or receive 
 judgment before the rescuer can be punished : and for the same 
 reason ; because, perhaps in fact, it may turn out that there has 
 been no offence committed. By the statute 16 Geo. II., ch. 31, to 
 convey to any prisoner in custody for treason or felony any arms, 
 instruments of escape, or disguise, without the knowledge of the 
 jailer, though no escape be attempted, or any way to assist such 
 prisoner to attempt an escape, though no escape be actually made, 
 is felony : or if the prisoner be in custody for petit larceny or 
 other inferior offence, it is then a misdemeanor. And by seve- 
 ral special statutes, to rescue, or attempt to rescue, any person 
 committed for the offences enumerated in those acts, is felony 
 without benefit of clergy ; and to rescue, or attempt to rescue, 
 the body of a felon executed for murder, is single felony, and 
 subject to transportation for seven years.^ 
 
 5. Receiving of stolen goods, knowing them to be stolen, is 
 also a high misdemeanor and affront to public justice. We have 
 seen in a former chapter, that this offence, which is only a mis- 
 demeanor at common law, by the statute 3 & 4 W. & M., ch. 9, 
 and 5 Ann., ch. 31, makes the offender accessory to the theft and 
 felony.* 
 
 * These various statutes have been superseded by later enactments, 
 which, however, embody substantially the same provisions, though the pen- 
 alties have been aade less severe. Similar statutes are found in various 
 States of this country. 
 
 'This crime has now been made a substantive offence, in English law; 
 and it is provided that the receiving of any chattel, money, valuable security 
 or other property whatsoever, the stealing, taking, extorting, obtaining, em- 
 bezzling, or otheiwise disposing whereof amounts to felony, with knowledge 
 
904 OF OFFENCES AGAINST PUBLIC JUSTICE. 
 
 6. Of a nature somewhat similar to the last is the offence ol 
 tAefi bote, which is where the party robbed not only knows the 
 felon, but also takes his goods again, or other amends upon 
 agreement not to prosecute. This is frequently called com- 
 pounding of felony ; and formerly was held to make a man an 
 accessory ; but it is now punished only with fine and imprison- 
 ment. By statute 25 Geo. II., ch. 36, even to advertise a reward 
 for the return of things stolen, with no questions asked, or words 
 to the same purport, subjects the advertiser and the printer to a 
 forfeiture of j^so each.' 
 
 7. Common barretry is the offence of frequently exciting and 
 stirring up suits and quarrels between His Majesty's subjects, 
 either at law or other-ways. The punishment for this offence, in 
 a common person, is by fine and imprisonment ; but if the of- 
 fender (as is too frequently the case) belongs to the profession of 
 the law, a barretor, who is thus able as well as willing to do mis- 
 chief, ought also to be disabled from practising for the future. 
 And indeed it is enacted by statute 12 Geo. I., ch. 29, that if any 
 one, who hath been convicted of forgery, perjury, subornation ol 
 perjury, or common barretry, shall practise as an attorney, soli- 
 citor, or agent, in any suit ; the court, upon complaint, shall ex- 
 
 that the same was feloniously stolen or obtained, is felony ; and that the 
 receiving with such guilty knowledge of any property, the stealing or ob- 
 taining whereof is a misdemeanor, is itself a misdemeanor. (24 & 25 Vict., 
 ch. 96.) Statutes of similar scope and purport have been generally enacted 
 in the United States. 
 
 To sustain a conviction for this ofEence, it is not necessary to prove that 
 the receiver acted from motives of personal gain, or that any consideration 
 passed to him from the thief. (117 Mass. 141 ; 69 N. Car. 29 ; 12 Wend. 76.) 
 Proof of the actual receipt of the goods, and of guilty knowledge, is all that is 
 required. The receiver may be convicted, though he has offered to restore 
 the goods to the owner, upon payment of a reward. {People v. Wiley, 3 
 Hill, 194.) In order to prove guilty knowledge, evidence is admissible that 
 the prisioner had frequently received similar articles of property, under like, 
 circumstances, from the same thief, stolen from the same person and place, 
 knowing that they were stolen. (Copperman v. People, 56 N. Y. 591.) 
 
 ' This statute has been superseded by a later enactment (24 & 25 Vict. 
 ch. 96), which contains provisions of a similar character. The compounding 
 of felonies is declared to be a criminal offense by the legislatures of many of 
 the States ; and, in some States, this is true also of the compounding of mis- 
 demeanors. It is a general rule, that a contract made in compounding an 
 offense is not enforceable. (See Comm. v. Pease, 16 Mass. 91 ; Hinesburg 
 v. Sumner, 9 Vt. 23.) 
 
OF OFFENCES A GAINST PUBLIC JUSTICE. 905 
 
 imine it in a summary way ; and, if proved, shall direct the of- 
 lender to be transported for seven years. Hereunto may also 
 be referred another offence, of equal malignity and audacious- 
 ness; that of suing another in the name of a fictitious plaintiff ; 
 either one not in being at all, or one who is ignorant of the suit. 
 This offence, if committed in any of the king's superior 
 courts, is left, as a high contempt, to be punished at their dis- 
 cretion. But in courts of a lower degree, where the crime is 
 equally pernicious, but the authority of the judges not equally 
 extensive, it is directed by statute 8 Eliz., ch. 2, to be punished 
 by six months' imprisonment, and treble damages to the party 
 injured.' 
 
 8. Maintenance is an offence that bears a near relation to the 
 former; being an officious intermeddling in a suit that no way 
 belongs to one, by maintaining or assisting either party with 
 money or otherwise, to prosecute or defend it : a practice that 
 was greatly encouraged by the first introduction of uses. This 
 is an offenv_e against public justice, as it keeps alive strife and 
 contention, and perverts the remedial process of the law, into an 
 engine of oppression. And therefore, by the Roman law, it was 
 :' species of the crimen falsi to enter into any confederacy, or do 
 any act to support another's lawsuit, by money, witnesses or 
 patronage. A man may however maintain the suit of his 
 near kinsman, servant, or poor neighbor, out of charity and com- 
 passion, with impunity. 
 
 9. Champerty, campi-partitio, is a species of maintenance, 
 and punished in the same manner : being a bargain with a plain- 
 tiff or defendant campum partire, to divide the land or other 
 matter sued for between them, if they prevail at law ; whereupon 
 the charaperter is to carry on the party's suit at his own ex 
 pense.' Thus champart, in the French law, signifies a similar 
 
 ' The statute 12 Geo. I., ch. 29 has been made perpetual by statute 
 30 & 31 Vict., ch. 59, but the punishment has been changed. There are few 
 modern decisions in regard to the offense of barretry. The purchase, in a 
 single instance, of a claim, with a view to its litigation, does not amount to 
 barretry ; there must be a common practice of fomenting suits and proceed- 
 ings at law. (See Voorhees v. Dorr, 51 Barb. 580.) This subject is usually 
 regulated by statute. 
 
 'Maintenance and champerty are offenses closely resembling each other, 
 the chief difference being that the latter involves an agreement or stipulation 
 for profit to be derived from the proceeds of the litigation, while in the for 
 
go6 OF OFFENCES AGAINST PUBLIC JUSTICE. 
 
 division of profits, being a part of the crop annually due to the 
 landlord by bargain or custom. In our sense of the word it 
 signifies the purchasing of a suit, or right of suing : a practice 
 so much abhorred by our law, that it is one main reason why a 
 chose in action, or thing of which one hath the right but not the 
 
 mer there is no such element of gain. Such acts were deemed highly perni- 
 cious in the early law, as tending to promote unnecessary strife and conten- 
 tion, and to encourage a litigious spirit. But, in criminal law, these offenses are 
 at present of comparatively little importance, since prosecutions for them are 
 rarely instituted. There are, however, statutes in force in several States of this 
 country, declaring such acts to be misdemeanors, and therefore indictable ; and 
 in some States the rules of the common law still constitute the law upon these 
 subjects. But these topics are of most importance in civil law, since contracts 
 founded in champerty or maintenance are held to be void. Thus the purchase 
 of a mere right of action by one who has no interest in the controversy with the 
 express object of bringing suit thereon, for the purpose of harassing the defend- 
 ant or of speculating out of the litigation, has been held illegal under laws for- 
 bidding maintenance. (2 Paige, 289; see 11 Q. B. D. i ; 117 U. S. 582; 14 
 N. Y. 289 ; 131 Mass. 436.) But if a person has any interest in the thing in 
 dispute, though on contingency only, he may lawfully maintain an action upon 
 it. Thus, it is not maintenance for a vendor with warranty to uphold his 
 vendee in a suit about the title. {Goodspeed v. Fuller, 46 Me. 141 ; Wickham 
 V. Conklin, 8 Johns. 220.) So kinsmen may assist one another in lawsuits ; 
 and one may lawfully advance money to a poor man to enable him to carry on 
 a litigation, if it be done bona fide and not to promote useless suits. (17 Q. 
 B. D. 104 ; 3 Johns. Ch. 508.) One of the most important instances of cham- 
 perty is where an attorney makes an agreement with his client to carry on the 
 suit at his own expense, and to take his compensation from the proceeds of the 
 litigation, if the suit be carried to a successful issue. Such contracts are usually 
 held to be void ; though in some States lawyers are now permitted to contract 
 for contingent fees payable from the proceeds of the suit. (102 N. Y. 395; 
 71 la. 197; 138 Mass. 530; 119 111. 626; 40 Kan. 195.) So the purchase by 
 attorneys of rights of action, with the purpose of bringing suit thereon, is 
 commonly prohibited in law, on grounds of public policy. Thus, in New York, 
 it is provided by statute that no attorney shall buy any cause of action with 
 intent to sue thereon ; and that, if he is guilty of such an act, he shall be 
 punishable for misdemeanor, and may be removed from office as attorney. 
 (Code Civ. Pro. §§ 7:^-77.) The sale of pretended titles to land is also 
 generally prohibited. By this is meant the sale of land which is in the pos- 
 session of a person claiming under a title adverse to the grantor. Such con- 
 veyances are void, and the act is usually punishable as a misdemeanor ; the 
 same is true if land which is the subject of a pending suit is purchased by one 
 knowing of such suit. (Washburn on Real Prop. III. 351, 5th ed. ; Pearce v. 
 Moore, 1 14 N. Y. 2 j6 ; see 75 Ala. 225.) In some States the law of maintenance 
 and champerty has been abolished (40 N. J. L. 195 ; 148 Mass. 18), or much 
 limited in its scope. (102 N. Y. 395 ; cf. 144 Mass. 393 ; 93 U. S. 548.) 
 
OF OFFENCES AGAINST PUBLIC JUSTICE. 907 
 
 possession, is not assignable at common law ; because no man 
 should purchase any pretence to sue in another's right. These 
 pests of civil society, that are perpetually endeavoring to disturb 
 the repose of their neighbors, and officiously interfering in other 
 men's quarrels, even at the hazard of their own fortunes, were 
 severely animadverted on by the Roman law. Hitherto also 
 must be referred the provision of the statute 32 Hen. VHI., ch. 
 9 that no one shall sell or purchase any pretended right or title 
 to land, unless the vendor hath received the profits thereof for 
 one whole year before such grant, or hath been in actual possess- 
 ion of the land, or qf the reversion or remainder; on pain that 
 both purchaser and vendor shall each forfeit the value of such 
 land to the king and the prosecutor. 
 
 10. A conspiracy also to indict an innocent man of felony 
 falsely and maliciously, who is accordingly indicted and ac- 
 quitted, is a farther abuse and perversion of public justice ; ° for 
 
 ' The crime of conspiracy is an offense of greater comprehensiveness in 
 scope, and of greater importance, than the brief statements in the text would 
 indicate. It includes a variety of acts to which no reference is made. It is 
 defined as a " combination or confederacy of two or more persons to ac- 
 complish some unlawful purpose, or a lawful purpose by some unlawful 
 means.'' As this definition indicates, an act maybe entirely lawful when per- 
 formed by a single person, or, if not lawful, at least not criminal, which, if 
 committed by two or more, would be indictable. For " the general principle 
 on which the crime of conspiracy is founded is this, that the confederacy of 
 several persons to effect any injurious pbjept, creates such a new and addi- 
 tional power to cause injury as requires criminal restraint ; although none 
 were necessary, were the same thing proposed, or even attempted to be 
 done, by any person singly." (See Bishop's Cr. Law, ii. § 180.) But the act, 
 though lawful, must be such as is particularly adapted to injure the public, or 
 some individual, by reason of the combination. Thus, though each person 
 at a theatre has a right to express his disapprobation of the piece acted, or of 
 a performer on the stage, yet if several previously agree to condemn a play 
 or hiss an actor, they will be guilty of conspiring. (Clifford v. Brandon, 2 
 Campbell, 358.) So the slSnder of an individual by a single person is not 
 indictable ; but if several unite in a scheme to ruin his reputation by de- 
 famatory charges, it is a criminal conspiracy. The offense of conspiracy is 
 complete, when its combination is proved, and no overt act in pursuance of 
 the common intent is necessary to be proved. But this common law rule 
 has been changed by statute in some States, proof of an overt act being re 
 quired. Thus, in New York, it is provided that no agreement, except to com- 
 mit a felony against the person, or arson, or burglary, shall be deemed a con 
 spiracy, unless some act be done to effect the object thereof. (Penal Code, 
 § 171; see 47 N. J. L. 180.) A corrupt or criminal intent is also essential 
 to a criminal conspiracy. (63 N. Y. 88 ; 47 N. J. L. 461.) 
 
9o8 OF OFFENCES A GAINS T P UBLIC JUS TICE. 
 
 which the party injured may either have a civil action by writ ol 
 conspiracy (of which we spoke in the preceding book) or the 
 conspirators, for there must be at least two to form a conspiracy, 
 may be ind Lcted at the suit of the king, and were by the ancient 
 common law to receive what is called the villenous judgment ; 
 viz., to lose their liberam legem, whereby they are discredited 
 and disabled as jurors or witnesses ; to forfeit their goods and 
 chattels, and lands for life ; to have those lands wasted, their 
 houses razed, their trees rooted up, and their own bodies com- 
 mitted to prison. But it now is the better opinion, that the 
 
 The various forms of conspiracy have been conveniently classified by 
 Mr. Bishop, in his work on criminal law as follows : (i) Conspiracies to de- 
 fraud individuals j — ashy combining to cheat by making one drunk, and 
 playing at cards with him falsely, (State v. Younger, I Dev. 357) ; or by 
 making false representations in regard to the soundness of a horse, so as to 
 defraud a purchaser. {Queen v. Kenrick, 5 Q. B . 49 ; March v. People, 7 
 Barb. 391.) (2) Conspiracies to injure individuals otherwise than by fraud; 
 — as by combining to injure a trader by secretly adulterating or spoiling his 
 wares, {Rex v. Cope, l Strange, 144) ; or to extort money from a person by 
 bringing against him false charges ; or to hiss an actor, etc. (3) Conspiror 
 cies to disturb the course of government and of justice ; — as by scheming to 
 procure a false indictment against a person, or to fabricate or suppress testi- 
 mony in a particular trial. (2 Burrow, 993 ; see 148 Mass. 127.) (4) Con- 
 spiracies to create public breaches of the peace ; — as by conspiring to commit 
 an assault and battery. (JOonmi. v. Putnam, 29 Penn. St. 296.) (5) Con- 
 spiracies to create public nuisances, and do other like injuries. (6) Con- 
 spiracies against both individuals and the community. Under this head is 
 included a form of conspiracy of considerable consequence, viz., a combina- 
 tion among workmen to control the price of labor by "striking," and coercing 
 other workmen to unite with them or to cease laboring at lower rates, through 
 threats or other means of intimidation ; and so also as to the modern " boy- 
 cott." (55 Conn. 46; 59 Vt. 273; 84 Va. 927.) But it is not unlawful for 
 workmen to agree that they will not labor at established rates, and to demand 
 higher wages, if they do not interfere with the rights of others to labor for 
 whatever price they may choose to receive. {Master Stevedores'' Ass''n. v. 
 Walsh, 2 Daly, I ; see 32 N. J. L. 151 ; 23 Q. B. D. 598 ; 106 Mass. I.) 
 
 A conspiracy requires at least two confederates. A husband and wife 
 cannot be chargeable with this offense, since by common law they are re- 
 garded as one. If two conspirators are jointly charged, an acquittal of one 
 operates as an acquittal of the other also ; but if one die, the other may be 
 tried singly. (See 12 Q. B. D. 241 ; also 2 Johns. Cas. 301.) 
 
 In some States, there are specific statutory regulations in regard to this 
 offense, and the classification above given is superseded by one prescribed 
 by the legislature. But these classifications are all quite similar in their 
 general outline. 
 
OF OFFENCES A GAINS T P UBLIC JUS TICE. 909 
 
 villenous judgment is by long disuse become obsolete ; it not 
 having been pronounced for some ages : but instead thereof the 
 delinquents are usually sentenced to imprisonment, fine, and 
 pillory. To this head may be referred the offence of sending 
 letters threatening to accuse any person of a crime punishable 
 with death, transportation, pillory, or other infamous punish- 
 ment, with a view to extort from him any money or other valua- 
 ble chattels. 
 
 II. The next offence against public justice is when the suit 
 IS past its commencement, and come to trial. And that is, 
 the crime of wilful, and coxru'pt perjury : which is defined by Sir 
 Edward Coke, to be a crime committed when a lawful oath is 
 administered, in some judicial proceeding, to a person who 
 swears wilfully, absolutely, djid falsely, in a matter material to the 
 issue or point in question." The lavir takes no notice of any 
 
 10 All the elements included in the definition given in the text, are essen- 
 tial to constitute the offense of perjury: (i.) There must have been a law- 
 ful oath administered. This rule requires that the suit, or proceeding in 
 which the testimony is given, be one of which the court has jurisdiction, and 
 that the oath be administered by one having due legal authority. If it be 
 administered by the judge of a State court, out of the territorial jurisdiction 
 of the State, or by an officer who acts under an illegal appointment, there is no 
 perjury. (107 U. S. 671 ; 39 O. St. 496 ; 62 la. 54; 96 Pa. St. 285 ; 76N. Y. 220 
 & 242.) The oath should be in the form which the law prescribes ; but an im- 
 material variation therefrom, or an innocent failure to observe the precise 
 formalities which are requisite, will not render the oath less binding, or re- 
 lieve the false witness from the guilt of perjury. Thus where a witness, in 
 taking an oath, kissed a book which was believed by himself and the admin- 
 istering tribunal to be the Bible, but which was not so in fact, the oath was 
 nevertheless held to be obligatory upon him. {People v. Cook, 8 N. Y. (>T^ The 
 material consideration is, whether the witness actually intended to bind his 
 conscience ; if he did, he will be bound to the same extent as if the oath 
 were in the proper form. And the same would be true if this was only his 
 apparent intent ; as if he took an oath without objection, which, by reason of 
 his religiou.s belief, he did not consider binding, and purposely disregarded it. 
 (Sells V. Hoare, 3 B. & B. 232.) The witness need not have been competent, 
 nor compellable to testify ; it is sufficient that he gives testimony under oath, 
 whether this be required of him, or be done voluntarily. {Chamberlain v. 
 People, 23 N. Y. 85.) (2.) The proceeding must have been z. judicial one ; it 
 must have been such as the law authorizes in the regular administration ol 
 justice. It is a general rule, that an extrajudicial oath will not sustain an indict- 
 ment for perjury. " A false oath, taken by one for the making of a bargain, 
 that the thing sold is his own, is not punishable as perjury." (Hawkins, P. C. 
 ni.'i Thtw, perjury cannot be assignee' in false swearing before acourt nol 
 
910 OF OFFENCES A GAINST PUBLIC JUSTICE. 
 
 perjury but such as is committed in some court of justice, havin| 
 power to administer an oath ; or before some magistrate c» 
 proper officer, invested with a similar authority, in some proceed- 
 ings relative to a civil suit or a criminal prosecution : for it 
 esteems all other oaths unnecessary at least, and therefore will 
 not punish the breach of them. For which reason it is much to 
 be questioned, how far any magistrate is justifiable in taking a 
 voluntary affidavit in any extrajudicial matter, as is now too 
 frequent upon every petty occasion : since it is more than possi- 
 ble, that by such idle oaths a man may frequently in foro con- 
 scienticB, incur the guilt, and at the same time evade the temporal 
 penalties of perjury. The perjury must also be corrupt (that is, 
 committed malo animo), wilful, positive, and absolute : not upon 
 surprise, or the like : it also must be in some point material to the 
 question in dispute ; for if it only be in some trifling collateral 
 circumstance, to which no regard is paid, it is no more penal than 
 in the voluntary extrajudicial oaths before mentioned. Suborna- 
 
 legally constituted. (People v. Tracy, g Wend. 265) ; or, at common law, before 
 arbitrators, who have no power to administer an oath. {People v. Townsend, 
 5 How. Pr. 315.) Modern statutes, however, often declare it perjury to take a 
 wilful false oath in proceedings other than judicial, where the administering 
 of an oath is authorized or required by law. (See Tuttle v. People, 36 N. Y. 
 431; People V. McCaffrey, 75 Mich. 115; also 15 Gray, 438.) (3.) The 
 swearing must be wilful, absolute, znd/alse. It is not sufficient to constitute 
 perjury that the testimony be false ; for it may have been given under an 
 innocent mistake of facts, or through inadvertence, or be attributable to im- 
 perfect observation, or inadequate investigation. There must, therefore, be a 
 corrupt purpose, an intent to testify contrary to one's own knowledge or be- 
 lief. And this corruptness of purpose renders it perjury to swear even to 
 what is true, if the witness believes that he is testifying falsely. {People v. 
 McKinney, 3 Parker, 510.) The evidence is corrupt as to him, though true 
 in fact. (4.) The testimony must be material io the issue or point in question. 
 This does not mean that it should be of itself sufficient to occasion an erroneous 
 verdict or decision ; it is enough that it has a direct tendency to produce such 
 a result. Evidence tending to aggravate or reduce the amount of damages, is 
 held to be material. So all testimony is material which is directly relevant to 
 the matter in controversy, and calculated to affect, to any extent, the deter- 
 mination of the issue. But if it be wholly inapposite and unimportant, it 
 cannot, though wilfully false, render a witness accountable for this crime. 
 {Woodv. People, 59 N. Y. 117; Criminal Law Mag. iii. 459.) 
 
 There are statutes in relation to this crime in force in most of the United 
 States ; but these common law rules upon the subject have not been fun- 
 damentally changed, though, in some cases, they have been modified or ex- 
 tended. Subornation of perjury is also usually declared a crime by statute. 
 
OF OFFENCES A GA INS T P UBL IC JUS TICE. g 1 1 
 
 tioH of perjury is the offence of procuring another to take such 
 a false oath, as constitutes perjury in the principal. The punish- 
 ment of perjury and subornation, at common law, has been 
 various. It was anciently death ; afterwards banishment, or 
 cutting out the tongue ; then forfeiture of goods ; and now it is 
 fine and imprisonment, and never more to be capable of bearing 
 testimony. 
 
 12. Bribery is the next species of offence against public jus- 
 tice ; which is when a judge, or other person concerned in the 
 administration of justice takes any undue reward to influence his 
 behavior in his offige." In the East it is the custom never to 
 petition any superior for justice, not excepting their kings, with- 
 out a present. This is calculated for the genius of despotic coun- 
 tries ; where the true principles of government are never under- 
 stood, and it is imagined that there is no obligation from the 
 superior to the inferior, no relative duty owing from the governor 
 to the governed. The Roman law, though it contained many 
 severe injunctions against bribery, as well for selling a man's 
 vote in the senate or other public assembly, as for the bartering 
 of common justice, yet by a strange indulgence in one instance, 
 it tacitly encouraged this practice : allowing the magistrate to 
 receive small presents, provided they did not in the whole exceed 
 a hundred crowns in the year : not considering the insinuating 
 nature and gigantic progress of this vice, when once admitted. 
 Plato therefore more wisely, in his ideal republic, orders those 
 who take presents for doing their duty to be punished in the 
 severest manner : and by the laws of Athens he that offered was 
 also prosecuted, as well as he that received a bribe. In England 
 this offence of taking bribes is punished, in inferior officers, with 
 fine and imprisonment ; and in those who offer a bribe, though 
 not taken, the same. But in judges, especially the superior ones, 
 it hath been always looked upon as so heinous an offence, that 
 
 " This definition of bribery is not sufficiently comprehensive. It may be 
 defined as the offense of giving, offering, or receiving anything of value for 
 the purpose of corruptly influencing the official action of one holding public 
 office, whether executive, legislative, or judicial. For it does not apply 
 merely to the taking of a reward ; nor does it extend \a judicial officers alone, 
 but to all persons acting in an official capacity. The essence of the crime is 
 that It lends to produce corruption in office, and to prevent the administra- 
 tion of justice, and the proper performance of official duty. This offense if 
 usually made the su')ject of statutory regulation. 
 
912 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 the chief justice Thorpe was I anged for it in the reign of Ed- 
 ward III. And some notable examples have been made in 
 parliament, of persons in the highest stations, and otherwise very 
 eminent and able, contaminated with this sordid vice. 
 
 13. Embracery is an attempt to influence a jury corruptly tft 
 one side by promises, persuasions, entreaties, money, entertain- 
 ments, and the like. The punishment for the person embracing 
 is by fine and imprisonment, and also for the juror so embraced. 
 
 14. Lastly, extortion is an abuse of*public justice, which con 
 sists in any officer's unlawfully taking, by color of his office, from 
 any man, any money or thing of value, that is not due to him, 
 or more than is due, or before it is due. The punishment is fine 
 and imprisonment, and sometimes a forfeiture of the oPice." 
 
 CHAPTER IX. 
 
 [bL. COMM. BOOK IV. CH. XI.] 
 
 Of Offences against the Public Peace. 
 
 We are next to consider offences against the public peace , 
 the conservation of which is intrusted to the king and his offi- 
 cers, in the manner and for the reasons which were formerly 
 mentioned at large. These offences are either such as are an 
 actual breach of the peace : or constructively so, by tending to 
 make others break it. Both of these species are also either 
 felonious, or not felonious. The felonious breaches of the peace 
 are strained up to that degree of malignity by virtue of several 
 modern statutes : and, particularly, 
 
 I. The riotous assembling of twelve persons, or more, and 
 not dispersing upon proclamation. The statute i Geo. I., ch. 5, 
 enacts, generally, that if any twelve persons are unlawfully 
 assembled to the disturbance of the peace, and any one justice 
 of the peace, sheriff, under-sheriff, or mayor of a town, shall 
 think proper to command them by proclamation to disperse, if 
 '2 The offenses of embracery and extortion are defined and regulated by 
 express statutes, in many of the American States. (See, as to embracery, 
 Gibbs V. Dewey, 5 Cowen 503 ; as to extortion, People v. Whaley, 6 Cowen, 
 661.) 
 
OFFENCES AGAINST THE PUBLIC PEACE 913 
 
 they contemn his orders and continue together for one hour 
 afterwards, such contempt shall be felony without benefit of 
 clergy. And farther, if the reading of the proclamation be by 
 force opposed, or the reader be in any manner wilfully hindered 
 from the reading of it, such opposers and hinderers are felons 
 without benefit of clergy : and all persons to whom such procla- 
 mation ought to have been made, and knowing of such hinderance, 
 and not dispersing, are felons without benefit of clergy. 
 
 2. Affrays (from affraier, to terrify) are the fighting of two or 
 more persons in some public place, to the terror of his majesty's 
 subjects : for, if the "fighting be in private, it is no affray but an 
 assault. Affrays may be suppressed by any private person 
 present, who is justifiable in endeavoring to part the combatants, 
 whatever consequence may ensue. But more especially the con- 
 stable, or other similar officer, however denominated, is bound to 
 keep the peace ; and to that purpose may break open doors to 
 suppress an affray, or apprehend the affrayers ; and may either 
 carry them before a justice, or imprison them by his own author 
 ity for a convenient space till the heat is over; and may then 
 perhaps also make them find sureties for the peace. The pun- 
 ishment of common affrays is by fine and imprisonment ; the 
 measure of which must be regulated by the circumstances of the 
 case ; for, where there is any material aggravation, the punish- 
 ment proportion ably increases. As where two persons coolly 
 and deliberately engage in a duel ; this being attended with an 
 apparent intention and danger of murder, and being a high con- 
 tempt of the justice of the nation, is a strong aggravation of the 
 affray, though no mischief has actually ensued. Another aggra- 
 vation is, when thereby the officers of justice are disturbed in 
 the due execution of their office : or where a respect to the par- 
 ticular place ought to restrain and regulate men's behavior, 
 more than in common ones : as in the king's court and the like. 
 Two persons may be guilty of an affray : but, 
 
 3. Riots, routs, and unlawful assemblies, must have three per- 
 sons at least to constitute them. An unlawful assembly is when 
 three or more do assemble themselves together to do an unlawful 
 act, as to pull down enclosures, to destroy a warren or the game 
 therein ; and part without doing it, or making any motion towards 
 it. A rout is where three or more meet to do an unlawful act 
 upon a commo.i quarrel, as forcibly breaking down fences upon a 
 
 59 
 
914 OFFENCES A GAINST THE PUBLIC PEACE. 
 
 right daimed of common or of way ; and make some advances 
 towards it. A riot is where three or more actually do an unlaw- 
 ful act of violence, either with or without a common cause or 
 quarrel : as if they beat a man ; or hunt and kill game in another's 
 park, chase, warren, or liberty ; or do any other unlawful act with 
 force and violence ; or even do a lawful act, as removing a nuis- 
 ance, in a violent and tumultuous manner. By the statute 13 
 Hen. IV., ch. 7, any two justices, together with the sheriff or 
 under-sheriff of the county, may come with the posse comitatus, 
 if need be, and suppress any such riot, assembly, or rout, arrest 
 the rioters, and record upon the spot the nature and circum- 
 stances of the whole transaction ; which record alone shall be a 
 sufficient conviction of the offenders. In the interpretation of 
 which statute it hath been holden, that all persons, noblemen, and 
 others, except women, clergymen, persons decrepit, and infants 
 under fifteen, are bound to attend the justices in suppressing a 
 riot, upon pain of fine and imprisonment ; and that any battery, 
 wounding, or killing the rioters, that may happen in suppressing 
 the riot is justifiable. So that our ancient law, previous to the 
 modern riot act, seems pretty well to have guarded against vio- 
 lent breach of the public peace ; especially as any riotous assem- 
 bly on a public or general account, as to redress grievances or 
 pull down all enclosures, and also resisting the king's forces if 
 sent to keep the peace, ma}' amount to overt acts of high treason, 
 by levying war against the king.' 
 
 4. Another offence against the public peace is that of a 
 forcible entry or detainer ; which is committed by violently taking 
 or keeping possession of lands and tenements, with menaces, 
 force, and arms, and without the authority of law. This was for- 
 merly allowable to every person disseized, or turned out of pos- 
 session, unless his entry was taken away or barred by his own 
 neglect, or other circumstances ; which were explained more at 
 large in a former book. But this being found very prejudicial 
 to the public peace, it was thought necessary by several statutes 
 to restrain all persons from the use of such violent methods, 
 
 • These offenses here enumerated, viz : affrays, riots, routs, and unlairful 
 assemblies, are also generally considered to be common law crimes, in the 
 various States of this country, so far as statutes in relation to these subjects 
 have not effected a change. But indictments for these crimes are quite un- 
 usual. (See People v. White, 55 Barb. 606; State v. Russell, 45 N. H. 83.) 
 
OFFENCES AGAINST THE PUBLIC PEACE. 915 
 
 even of doing themselves justice ; and much more if ttjpy have 
 no justice in their claim. So that the entry now allowed by law 
 is a peaceable one ; that forbidden is such as is carried on and 
 maintained with force, with violence, and unusual weapons. By 
 the statute 5 Ric. 11., st. i, ch. 8, all forcible entries are punished 
 with imprisonment and ransom at the king's will. And by the 
 several statutes of 15 Rich. II., ch. 2, 8 Hen. VI., ch. 9, 31 Eliz., 
 ch. II, and 21 Jac. I., ch. 15, upon any forcible entry or forcible 
 detainer after peaceable entry, into any lands, or benefices of the 
 church, one or more justices of the peace, taking sufficient power 
 of the county, may go to the place, and there record the force upon 
 his own view, as in case of riots ; and upon such conviction may 
 commit the offender to jail, till he makes fine and ransom to the 
 king. And moreover the justice or justices have power to sum- 
 mon a jury to try the forcible entry or detainer complained of : 
 and, if the same be found by that jury, then, besides the fine on 
 the offender, the justices shall make restitution by the sheriff of 
 the possession, without inquiring into the merits of the title : for 
 the force is the only thing to be tried, punished, and remedied 
 by them : and the same may be done by indictment at the gen- 
 eral sessions. But this provision does not extend to such as 
 endeavor to maintain possession by force, where they themselves, 
 or their ancestors, have been in the peaceable enjoyment of the 
 lands and tenements, for three years immediately preceding.'' 
 
 5. Besides actual breaches of tl\e peace, anything that tends 
 to jjrovoke or excite others to break it, is an offence of the same 
 denomination. 'T:\\&x^'i.ox& challenges to fight, €\\h&x by word' or 
 letter, or to be the bearer of such challenge, are punishable by 
 fine and imprisonment, according to the circumstances of the 
 offence. If this challenge arises on account of any money won 
 at gaming, or if any assault or affray happen on such account, 
 the offender by statute 9 Ann., ch. 14, shall forfeit all his goods 
 to the crown, and suffer two years' imprisonment. 
 
 6. Of a nature very similar to challenges are libels, libellifamo- 
 si, which taken in their largest and most extensive sense, signify 
 
 ' It is the generally established rule in this country, that forcible entry 
 and detainer is an indictable offense. Statutes similar to those mentioned 
 in the text, have also been enacted, providing for the restoration of possession 
 •0 the party wrongfully evicted. The costs and expenses of the investiga- 
 tion which these statutes require to be instituted, are assessed upon the pee 
 son making the wrongful entry. (See 119 U. S. 608; 122 U. S. 597; and 
 ««'*, p. 721.) 
 
9i6 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 any wijtings, pictures, or the like, of an immoral or illegal ten 
 dency ; but, in the sense under which we are now to consider 
 them, are malicious defamations of any person, and especially a 
 magistrate, made public by either printing, writing, signs, or pic- 
 tures, in order to provoke him to wrath, or expose him to public 
 
 hatred, contempt, and ridicule.' ,The direct tendency of these libels 
 
 I 
 
 V, 
 
 8 The offense of libel, in its criminal as well as its civil aspect, has been fully 
 considered in aprevious note,so far as those modes of defamation are concerned, 
 which are subject both to indictment and to civil action. (See ante, page 682, note 
 (7.) But there are certain forms of libel which constitute criminal offenses, 
 but cannot be made the basis of a civil action for damages, because they do 
 not violate individual rights. All actionable libels are also indictable, but 
 all indictable libels are not actionable. Those which are exclusively of 
 a criminal character are of three principal classes ; — libels which blacken the 
 memory of the dead, libels upon the government, and obscene libels tending 
 to corrupt the public morals. The first class is the most important. Libels 
 of this kind are deemed detrimental to public welfare, since they tend to 
 excite feelings of animosity on the part of relatives and friends of the deceased, 
 and to provoke them to measures of retaliation. Such libels, as well as 
 those which injure the reputation of a living person, derive their criminality 
 from their presumed tendency to occasion a breach, of the public peace. 
 But it is only such criticism upon the character or actions of a deceased 
 person as is made from malicious motives, with intent to degrade his mem- 
 ory, that is indictable as a criminal libel. Temperate and candid discussion 
 of his actions, motives of conduct, traits -of character, etc., is permissible. 
 
 Libels against the government consist of calumnious publications in 
 denunciation or unwarrantable criticism of the established system of govern- 
 ment, or the regiilar methods of administration, when their evident design 
 or natural tendency is to promote disaffection among the citizens, or to«xcite 
 a spirit of revolution. But indictments for libels of this kind are very rare, 
 and may be said to be unknown in modern jurisprudence. 
 
 Obscene or immoral libels are such indecent or immoral publications as 
 tend to destroy the love of purity, morality and virtue, and corrupt the public 
 morals. But there are usually, at the present day, special statutory 
 regulations to prevent the circulation of such publications, and to punish 
 those who attempt to issue them. They are, moreover, not now generally 
 termed libels, though so classified at common law. 
 
 But the most common forms of libel are those which are defamatory to 
 the reputation of some living person, and constitute both civil and criminal 
 offenses. There is one point of considerable importance in reference to such 
 libels, which is not considered in the previous note upon this subject. This 
 is in relation to the power of the court and of the jury in the construction of 
 the libellous charges. In a civil action, where the words of an alleged hbel 
 are unambiguous, it is for the court to determine whether they are libellous 
 in fact, and not for the jury. But if there is doubt in regard to the defama- 
 tory character of the expressions used, tliis question is to b** iecided by tha 
 
OFFENCES A GAINS T THE P UBLIC PEA CE. 917 
 
 is the breach of the public peace, by stirring up the objects of 
 them to revenge, and perhaps to bloodshed. The communication 
 of a libel to any one person is a publication in the eye of the law : 
 and therefore the sending an abusive letter to a man is as much 
 a libel as if it were openly printed, for it equally tends to a breach 
 of the peace, i For the same reason it is immaterial with respect 
 to the essence of a libel whether the matter of it be true or false ; 
 since the provocation, and not the falsity, is the thing to be pun- 
 ished criminally : though, doubtless, the falsehood of it may ag- 
 gravate its guilt, and enhance its punishment. In a civil action, 
 we may remember, . a libel must appear to be false, as well as 
 scandalous ; for, if the charge be true, the plaintiff has received 
 no private injury, and has no ground to demand a compensation 
 for himself, whatever offence it may be against the public peace ; 
 and therefore, upon a civil action, the truth of the accusation may 
 be pleaded in bar of the suit. But, in a criminal prosecution, the 
 tendency which all libels have to create animosities, and to dis 
 turb the public peace, is the whole that the law considers. And 
 therefore, in such prosecutions, the only points to be inquired 
 into are, first, the making or publishing of the book or writing : 
 and, secondly, whether the matter be criminal : and, if both these 
 points are against the defendant, the offence against the public 
 is complete. 
 
 In this and the other instances which we have lately consid- 
 ered, where blasphemous, immoral, treasonable, schismatical, se- 
 ditious, or scandalous Hbels are punished by the English law, 
 some with a greater, others with a less degree of severity ; the 
 liberty of the press, properly understood, is by no means infringed 
 or violated. The liberty of the press is indeed essential to the 
 
 juty. The Court of King's Bench in England held, in several early cases, 
 that a similar rule applied in criminal prosecutions for libel ; but this doc- 
 trine was much controverted ; and finally a statute was passed, declaring that 
 the jury might render a verdict of guilty or not guilty upon the whole matter 
 in issue, and thus act as judges both of the law and the fact. This is an 
 anomalous doctrine in criminal law, and peculiar to this offense. Similar 
 statutes, or constitutional provisions, have been generally adopted in many 
 States of this country. 
 
 The truth is always a defense to a civil action for libel, but not to a 
 criminal prosecution, unless proved to have been published with good 
 motives and for justifiable ends. At common law, it was never a defense 
 npm an indictment, but this modification of the former rule has bee.i efiEect 
 ed in modern times by statute 
 
9i8 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 nature of a free state ; but this consists in laying no previous re- 
 straints upon publications, and not in freedom from censure for 
 criminal matter when published. Every freeman has an undoubted 
 right to lay what sentiments he pleases before the public ; to for- 
 bid this, is to destroy the freedom of the press : but if he pub- 
 lishes what is improper, mischievous, or illegal, he must take the 
 consequence of his own temerity. To subject the press to the 
 restrictive power of a licenser, as was formerly done, both before 
 and since the revolution, is to subject all freedom of sentiment 
 to the prejudices of one man, and make him the arbitrary and 
 infallible judge of all controverted points in learning, religion, and 
 government. But to punish (as the law does at present) any 
 dangerous or offensive writings, which, when published, shall on 
 a fair and impartial trial be adjudged of a pernicious tendency, 
 is necessary for the preservation of peace and good order, of gov- 
 ernment and religion, the only solid foundations of civil liberty. 
 Thus the will of individuals is still left free; the abuse only of 
 that free-will is the object of legal punishment. Neither is any 
 restraint hereby laid upon freedom of thought or inquiry : liberty 
 3f private sentiment is still left ; :the disseminating, or making 
 public, of bad sentiments, destructive of the ends of society, is 
 the crime which society corrects. A man (says a fine writer on 
 this subject) may be allowed to keep poisons in his closet, but 
 not publicly vend them as cordials. And to this we may add, 
 that the only plausible argument heretofore used for the restrain- 
 ing the just freedom of the press, " that it was necessary to pre- 
 vent the daily abuse of it," will entirely lose its force, when it is 
 shown (by a seasonable exertion of the laws) that the press can- 
 not be abused to any bad purpose, without incurring a suitable 
 punishment : whereas it never can be used to any good one, when 
 under the control of an inspector. So true it will be found, that 
 to censure the licentiousness, is to maintain the liberty of the 
 press. 
 
OF OFFENCES AGAINST PUBLIC TRADE. 919 
 
 CHAPTER X. 
 
 [bL. COMM. BOOK II. CH. XII.] 
 
 Of Offences Against Public Trade. 
 
 Offences against public trade are, 
 
 1. Smuggling, op the offence of importing goods without pay- 
 ing the duties imposed thereon by the laws of the customs and 
 excise. This is restrained by a great variety of statutes, which 
 inflict pecuniary penalties and seizure of the goods for clandes- 
 tine smuggling ; the last of them, 19 Geo. II., ch. 34, is for the 
 purpose instar omnium ; enacting, that if three or more persons 
 shall assemble, with iire-arms or other offensive weapons, to assist 
 in the illegal exportation or importation of goods, or in rescuing the 
 same after seizure, or in rescuing offenders in custody for such 
 offences ; or shall pass with such goods in disguise ; or shall 
 wound, shoot at, or assault any officers of the revenue when in 
 the execution of their duty ; such persons shall be felons without 
 the benefit of clergy.' 
 
 2. Another offence against public trade is fraudulent bank- 
 ruptcy, which was sufficiently spoken of in a former volume ; I 
 shall therefore now barely mention the several species of fraud 
 talcen notice of by the statute law ; viz., the bankrupt's neglect of 
 surrendering himself to his creditors ; his nonconformity to the 
 directions of the several statutes ; his concealing or embezzling 
 his effects to the value of 20/./ and his withholding any books or 
 writings with intent to defraud his creditors : all which the policy 
 of our commercial country has made felony without benefit of 
 clergy. And indeed it is allowed by such as are the most averse 
 to the infliction of capital punishment, that the offence of fraud- 
 ulent bankruptcy, being an atrocious species of the crimen falsi, 
 
 'This statute has been superseded by a recent act (39 & 40 Vict., ch. 
 36), who.se provisions, however, are similar in the main to those of the 
 earlier act. The severity of the penalties prescribed has been much miti 
 gated. In this country, there are various acts of Congress in force for the 
 prevention and punishment of smuggling. 
 
920 OF OFFENCES AGAINST PUBLIC TRADE. 
 
 ought to be put upon a level with those of forgery and falsifying 
 the coin.^ 
 
 3. Usury, which is an unlawful contract upon the loan of 
 money, to receive the same again with exorbitant increase. Of 
 this also we had occasion to discourse at large in a former volume. 
 We there observed that by statute 37 Hen. VIII., ch. 9, the rate 
 of interest was fixed at 10/. per cent, peranmim, which the statute 
 13 Eliz., ch. 8, confirms : and ordains that all brokers shall be 
 guilty of 2i praniunire that transact any contracts for more, and 
 the securities themselves shall be void. The statute 21 Jac. I., 
 ch. 17, reduced interest to eight per cent.; and, it having been 
 lowered in 1650, during the usurpation, to ^vx. per cent., the same 
 reduction was re-enacted after the restoration by statute 12 Car. 
 II., ch. 13; and lastly, the statute 12 Ann. st. 2, ch. 16, has 
 reduced it to five per cent. Wherefore not only all contracts for 
 taking more are in themselves totally void, but also the lender 
 shall forfeit treble the money borrowed. Also, if any scrivener 
 or broker takes more than five shillings per cent, procuration- 
 money, or more than twelvepence for making a bond, he shall 
 forfeit 20/. with costs, and shall suffer imprisonment for half a 
 year.' 
 
 2 The present English bankrupt law, which has superseded the statutes 
 referred to in the text, declares the same classes of acts criminal as are here 
 mentioned, together with various other fraudulent acts, which are specifi- 
 cally defined by the statute (46 & 47 Vict., ch. 152.) A bankrupt convicted of 
 such acts is held guilty of a misdemeanor, and punishable by imprisonment for 
 not more than three years. (See 32 & 35 Vict., c. 62.) 
 
 The United States bankrupt law lately repealed declared it to be an 
 offense punishable by imprisonment, with or without hard labor, for not 
 more than three years, if the bankrupt debtor (i) secretes or conceals any 
 property belonging to his estate ; (2) parts with, destroys, alters, mutilates, 
 or falsifies any book, deed or document, relating thereto ; (3) removes any 
 such property, or book, deed or docu.-nent out of the district, or otherwise 
 disposes of it to prevent it from coming into the possession of the assignee, 
 or to hinder him from recovering the same ; (4) makes any payment, gift, 
 sale, assignment, transfer, or conveyance of any property belonging to his 
 estate, with the like intent ; (5) attempts to account for any of his property by 
 fictitious losses or expenses, etc., etc. (See ante, p. 582, note 2.) 
 
 ' The statutory penalties for usury have been entirely abolished in Eng- 
 land ; but, in some of the United States, similar penalties are still prescribed 
 by law for this offense. Thus, in New York, it is a misdemeanor punish- 
 able by fine or imprisonment, or both, to take a higher rate of interest than 
 SIX per cent. But, in some of the States, though the taking of usury is 
 
OF OFFENCES A GAINS T P UBLIC TRADE. 92 1 
 
 4. Cheating is another offense, more immediately against 
 pubhc trade ; as that cannot be carried on without a punctilious 
 regard to common honesty, and faith between man and man/ 
 
 prohibited, yet it is not now held to be a criminal offense ; and in some, 
 the parties to any transaction are allowed to agree upon such a rate of inter- 
 est as they prefer. 
 
 < Cheat. — A cheat, by the common-law, is the cnme of defrauding a per- 
 son by the use of some false token or symbol, by which he is deceived and 
 misled. Fraud accomplished by false oral representations merely, is not in- 
 dictable, but there must be some outward and visible sign or token em- 
 ployed. A mere lie, though it may be relied upon, and occasion loss to the 
 person deceived, is not^t common-law a cheat. Thus, if one obtains credit at 
 a store by falsely representing that he is engaged in trade ; or gets into his 
 possession a note, by pretending that he wishes to look at it, and then carries 
 it away ; no indictable cheat is committed, since no false symbol is used. 
 (Comin. V. Warren, 6 Mass. 72; People v. Miller, 14 Johns. 371.) But if 
 commodities exposed for sale, were marked with false brands, which were 
 calculated to deceive the public in regard to their quality, weight, etc., this 
 would constitute a cheat ; the packages with their marks being deemed false 
 tokens. And the nice distinction has been taken in the law, that, while it 
 is an indictable cheat to pay for goods purchased by the check of a third 
 person, which, though known to be valueless, is represented to be good, 
 yet it would not be a cheat to present one's own false check under like cir- 
 cumstances. In the one case, the instrument is deemed to be a false 
 token, in the other it is merely a false representation of the person present- 
 ing it, which, though reduced to writing, is no more a token, than when 
 made orally. So it would be a cheat to obtain goods from a dealer by 
 means of a written order, falsely purporting to be drawn by another person ; 
 ortopurchase articles, paying therefor in bills known to be counterfeit, or 
 worthless. {Comm. v. Boynton, 2 Mass. 77.) False personation seems to 
 have been regarded as a common-law cheat; as, where a person by adopting 
 a particular mode of dress, or assuming a particular appearance, causes him- 
 self to be taken for another person, and thus accomplishes a fraud. In order 
 that the fraudulent act may amount to a cheat, it is necessary that the person 
 claiming to have been defrauded, should have acted upon confidence in the 
 token or symbol employed. If his action were attributable to other causes, 
 there is but an attempt to cheat. This, however, is also indictable at com- 
 mon law. 
 
 False Pretences. — This doctrine of the common-law that fraud, to be in- 
 dictable, must be accomplished by means of a false token or symbol, led to 
 the enactment of statutes declaring it criminal to obtain goods or property 
 hy false pretences, though no symbol were used. Statutes, similar to those 
 of England, have been generally enacted in the several American States, and 
 the leading principles established under them may be briefly summarized as 
 follows ; — Fals'. pretences may be defined as false representations, with in- 
 tent to defraud, by words or acts, concerning past or present facts and 
 events. False statements, in the form of z. promise, will not constitute false 
 
922 OF OFFENCES AGAINST PUBLIC TRADE. 
 
 Hither therefore may be referred that prodigii.us multitude of 
 statutes, which are made to restrain and punish deceits in parti- 
 cular trades, and which are enumerated by Hawkins and Burn, 
 
 pretences, since they relate to the future, and are the subject, not of positive 
 knowledge, but of anticipation and intent. Thus, if a man obtains goods by 
 promising to pay for them on delivery, with intent to defraud the owner of 
 them, it is not a case of false pretences ; nor if a man obtain money from a 
 womar by promising to marry her at a future day. (Queen v. Johnston, 2 
 Moody, 254; see 132 Mass. 16; 90 N. Y. 314; 99 Pa. St. 570.) It is also 
 the generally established doctrine, that no statements in regard to future 
 events are indictable under these statutes, whether in the form of a promise 
 or not. There must be a false assertion as to some existing matter, by 
 which a person is induced to part with his money or property. Thus, it is a 
 sufficient false pretence to assert that one owns personal property, which he 
 does not own, and thereby to obtain a loan {Comm. v. Lincoln, 11 Allen, 
 233 ) ; or to obtain goods from a dealer by falsely representing one's self to 
 be in the employment of a particular person, who, it is pretended, sends for 
 them (J^eople v. Johnson, 12 Johns. 292); or to falsely represent that a 
 check given in payment for goods is genuine and valid, and that there are 
 funds in the bank for its payment. {Smith v. People, 47 N. Y. 303; see 
 also Comm. v. Wallace, 1 14 Pa. St. 405 ; State v. Hill, 72 Me. 238 ; Comm. 
 V. Lee, 149 Mass. 179.) 
 
 The false pretence need not be in words, but may be by acts ; as, where, 
 in an English case, a person in Oxford, not a member of the University, 
 went to a store, wearing the usual cap and gown of a student, and thus was 
 enabled to obtain credit. {Rex v. Barnard, 7 C. & P. 784.) False personation 
 is a sufficient false pretence ; as, where a person assumes the name of another, 
 and by this artifice accomplishes a fraudulent design. {Comm. v. Wilgus 
 4 Pick. 177.) But mere expressions of opinion, or the common exaggera- 
 tions of speech, do not constitute false pretences ; thus, a representation as 
 to the value of a watch left in pawn, was deemed to be a mere expression of 
 opinion, which would not sustain an indictment. {State v. Estes, 46 
 Me. 150; Comm. v. Wo'bd, 142 Mass. 459.) 
 
 In order that this offense may be complete, it is necessary that the fraud 
 be actually perpetrated, and that the false pretence be the efficient cause of 
 its accomplishment. If no reliance was placed upon the false representa- 
 tion, or if it was so far disregarded that other inducements proved the con- 
 trolling motives of action, no indictment can be sustained. It is not ne- 
 cessary however, that the false pretence, in order to be criminal, should be 
 the sole operative cause of the injury, as it may concur with others which 
 have also an influence over the mind of the person deceived. It must, how- 
 ever, be so far material, that, unless it had been practised, the transaction 
 resulting in injury would not have been consummated. {People v. Haynes, 
 II Wend. 557; 14 Wend. 546.) The pretence must be believed, and be the 
 predominant cause of action. {People v. Herrick, 13 Wend. 87 ; People v. 
 Stetson, 4 Barb. 151.) It has been held in New York, that if the property 
 obtained by false pretences were given with intent to procure a violation of 
 
OF OFFENCES A GAINST P UBLIC TRADE. 923 
 
 but are chiefly of use among the traders themselves. The offence 
 also of breaking the assize of bread, or the rules laid down by the 
 law, for ascertaining its price in every given quantity, is reducible 
 to this head of cheating ; as is likewise in a peculiar manner the 
 offence of selling by false weights and measures. The pun- 
 ishment of bakers breaking the assize, was anciently to stand in 
 the pillory, and for brewers to stand in the tumbrel or dungcart : 
 which, as we learn from domesday book, was the punishment for 
 knavish brewers in the city of Chestet so early as the reign of 
 Edward the Confessor. But now the general punishment for all 
 frauds of this kind, if indicted (as they may be) at common law, 
 is by fine and imprisonment : though the easier and more usual 
 way is by levying on a summary conviction, by distress and sale, 
 the forfeitures imposed by the several acts of parliament. Lastly, 
 any deceitful practice, in cozening another by artful means, 
 whether in matters of trade or otherwise, as by playing with false 
 dice, or the like, is punishable with fine, imprisonment, and 
 pillory. And by the statutes 33 Hen. VIII., ch. i, and 30 Geo. 
 II., ch. 24, if any man defrauds another of any valuable chattels 
 by color of any false token, counterfeit letter, or false pretence, 
 or pawns or disposes of another's goods without the consent of 
 the owner, he shall suffer such punishment by imprisonment, 
 fine, pillory, transportation, whipping, or other corporal pain, as 
 the court shall direct. 
 
 law, no indictment for the false pretences can be sustained ; as, where a per- 
 son falsely pretended to be an officer of the law, and to have a warrant 
 against another, who was thereby induced to give a watch and diamond ring 
 to the supposed officer to bribe him to violate his official duty. [McCordv. 
 People, 46 N. Y. 470 ; People v. Stetson, 4 Barb. 151.) But, in some States, 
 this doctrine has been denied. {Comm. v. Morrill, 8 Cush. 571.) 
 
 There has, moreover, been much discussion upon the point whether the 
 false pretence, in order to be indictable, must be such as would deceive a 
 person of ordinary prudence, or whether it would be sufficient that a fraud 
 was actually accomplished, though the person deceived were of less than or- 
 dinary prudence . There are many cases, particularly in this country, which 
 make ordinary prudence and caution the distinguishing test of responsi- 
 bility, but some recent cases of high authority take the other view. (See 
 People v. Williams, 4 Hill, 9 ; People v. Sully, 5 Parker, 142 ; People v. Court 
 of Oyer, etc., 83 N. Y. 436; Watson v. People, 87 N. Y. 561 ; State v. Mont- 
 gomery, 56 la. 195; Johnson v. State, 36 Ark. 242; State v. Burnett, 119 
 Ind. 392.) 
 
924 OF OFFENCES AGAINST 
 
 CHAPTER XI. 
 
 [bL. COMM. BOOK IV. CH. XIII.J 
 
 Of Offences Against the Public Police or Economy. 
 
 The last species of offences which especially affect the coifl- 
 monwealth, are those against the public police or economy. By 
 the public police and economy I mean the due regulation and 
 domestic order of the kingdom ; whereby the individuals of 
 the State, like members of a well governed family, are bound to 
 conform their general behavior to the rules of propriety, good 
 neighborhood, and good manners ; and to be decent, industrious, 
 and inoffensive in their respective stations. This head of offences 
 must therefore be miscellaneous, as it comprises all such crimes 
 as especially affect public society, and are not comprehended 
 under any of the preceding species. 
 
 I. A felonious offence, with regard to the holy estate of 
 matrimony, is what some have corruptly called bigamy, which 
 properly signifies being twice married ; but is more justly denom- 
 inated polygamy, or having a plurality of wives at once. Such 
 second marriage, living the former husband or wife, is simply 
 void, and a mere nullity, by the ecclesiastical law of England : 
 and yet the legislature has thought it just to make it felony, by 
 reason of its being so great a violation of the public economy 
 and decency of a well ordered State. For polygamy can never be 
 endured under any rational civil establishment, whatever spe- 
 cious reasons may be urged for it by the eastern nations, the 
 fallaciousness of which has been fully proved by many sensible 
 writers : but in northern countries the very nature of the climate 
 seems to reclaim against it ; it never having obtained in this part 
 of the world, even from the time of our German ancestors, who, 
 as Tacitus informs us, "prope soli barbarorum singulis uxoribus 
 contenti sjmt." It is therefore punished by the laws both of 
 ancient and modern Sweden with death. And with us in England 
 it is enacted by statute i Jac. I., ch. ii, that if any person, being 
 married, do afterwards mirry again, the former husband or wife 
 
THE PUBLIC POLICE OR ECONOMY. 925 
 
 being alive, it is felony ; but within the benefit of clergy. The. 
 first wife in this case shall not be admitted as a witness against 
 her husband, because she is the true wife ; but the second may, 
 for she is indeed no wife at all ; and so vice versa, of a second 
 husband. This act makes an exception to five cases, in which 
 such second marriage, though in the three first it is void, is yet 
 no felony, i. Where either party hath been continually abroad 
 for seven years, whether the party in England hath notice of the 
 other's being living or no. 2. Where either of the parties hath 
 been absent from the other seven years within th's kingdom, and 
 the remaining party hath had no knowledge of the other's being 
 alive within that time. 3. Where there is a divorce (or separation 
 a mensa et thord) by sentence in the ecclesiastical court. 4. 
 Where the first marriage is declared absolutely void by any such 
 sentence, and the parties loosed a vinculo. Or, 5. Where either 
 of the parties was under the age of consent at the time of the 
 first marriage, for in such case the first marriage was voidable by 
 the disagreement of either party, which the second marriage very 
 clearly amounts to. But if at the age of consent the parties had 
 agreed to the marriage, which completes the contract, and is 
 indeed the real marriage ; and afterwards one of them should 
 marry again ; I should apprehend that such second marriage 
 would be within the reason and penalties of the act.' 
 
 ' It is enacted, by statute 24 & 25 Vict., ch. 100, § 57, superseding the stat- 
 ute mentioned in the text, that whosoever, being married, shall marry any 
 other person during the life of the former husband or wife, whether the 
 second marriage shall have taken place in England or elsewhere, shall be 
 guilty of felony ; and any such offender may be tried in any place in Eng- 
 land, where he shall be apprehended, or be in custody, in the same manner 
 in all respects as if the offense had been actually committed there ; but this 
 enactment does not extend (i) to any second marriage contracted elsewhere 
 than in England or Ireland, by any other than a subject of Her Majesty, ot 
 '2) to any person marrying a second time, whose husband shall have been 
 continually absent from such person for the space of seven years, then last 
 past, and shall not have been known by such person to have been living 
 within that time, or (3) to any person, who, at the time of such second mar- 
 riage, shall have been divorced from the bond of the first marriage, or (4) to 
 any person whose former marriage shall have been declared void by the sen- 
 tence of any court of competent jurisdiction. (See 23 Q. B. D. 168.) 
 
 Statutes, similar to this in its general outline and substantial features have 
 been passed in the various States of this country ; but the limit in regard to 
 the time of absence has been variously changed. (See 133 U. S. 333.) 
 
926 OFFENCES AGAINST PUBLIC POLICE!, ETC. 
 
 2. Common nuisances are a species of offence against the 
 public order and economical regimen of the State ; being either 
 the doing of a thing to the annoyance of all the king's subjects, 
 or the neglecting to do a thing which the common good requires. 
 The nature of common nuisances, and their distinction from 
 private nuisances, were explained in the preceding book : when 
 we considered more particularly the nature of the private sort, as 
 a civil injury to individuals. I shall here only remind the student 
 that common nuisances are such inconvenient and troublesome 
 offences, as annoy the whole community in general, and not 
 merely some particular person ; and therefore are indictable 
 only, and not actionable ; as it would be unreasonable to multi- 
 ply suits, by giving every man a separate right of action, for what 
 damnifies him in common only with the rest of his fellow-sub- 
 jects.^ Of this nature are, I. Annoyances in highways, bridges, 
 
 2 A nuisance, in order to be public or common, must be such as interferes 
 with some public right, vested in the community as a legal entity ; as, by in- 
 terfering with the public right of passage upon highways, rivers, bridges, etc., 
 by endangering or impairing the general health or morals, by interfering with 
 the public welfare, etc. Thus, it is a public nuisance to manufacture or to 
 keep carelessly in large quantities, in towns or closely inhabited places, gun- 
 powder or other dangerous explosive substances, since this tends directly to 
 public detriment. {Myers v. Malcolm, 6 Hill, 292 ; Heeg v. Licht, 80 N. Y. 
 579.) Every unauthorized obstruction of a highway is indictable as a nuisance. 
 {^People V. Norton, (>\ N. Y. 6io; see in Pa. St. 204.) It will not excuse the 
 carrying on of a noisome and offensive trade or manufacture, that such indus- 
 trial enterprises are necessary for the supply of useful commodities to society, 
 or that they redound greatly to the general advantage, for some place must be 
 chosen for such trades, where their offensiveness will not occasion public det- 
 riment. No length of time will legalize a public nuisance, though a prescrip- 
 tive right may be gained to continue a private nuisance. Nor will it be any 
 defense to an indictment, that the nuisance was erected remote from any habi- 
 tation, and that those complaining thereof afterwards erected buildings in the 
 vicinity. (Taylor v. People, 6 Parker, 347.) The growth and development 
 of industrial and business centres cannot be suffered to be impeded by the 
 erection and continuance of public nuisances. , A public nuisance is also pri- 
 vate, when it occasions special damage to an individual ; and he may then 
 exercise the right of abatement, so far as his rights are interfered with, and 
 will also have a right of action to recover datnages for the injury sustained. 
 But a public nuisance is not necessarily private. There are many forms of 
 nuisances, particularly those which are injurious to public health or morals, 
 v.'hose abatement by public authority, or whose indictment, are specially pro- 
 vided for by legislative enactments or city ordinances. {Lawton v. Steele, 1 19 
 N. Y. 226; see 105 N. Y. 46; 135 Mass. 490.) 
 
OF HOMICIDE. 
 
 927 
 
 and pullic rivers, by rendering the same inconvenient or danger- 
 ous to pass, either positively, by actual obstructions ; or negative- 
 ly by want of reparations. For both of these, the person so 
 obstructing, or such individuals as are bound to repair and 
 cleanse them, or (in default of these last) the parish at large, 
 may be indicted, distrained to repair and mend them, and in 
 some cases fined. And a presentment thereof by a judge of 
 assize, &c. or a justice of the peace, shall be in all respects equiva- 
 lent to an indictment. Where there is a house erected, or an 
 inclosure made, upon any part of the king's demesnes, or of an 
 highway, or comt^on street, or public water, or such like public 
 things, it is properly called a purpresture. 2. All those kinds of 
 •,uisances (such as offensive trades and manufactures), which 
 when injurious to a private man are actionable, are, when detri- 
 mental to the public, punishable by public prosecution, and sub- 
 ject to fine according to the quantity of the misdemeanor : and 
 particularly the keeping of hogs in any city or market town is 
 indictable as a public nuisance. All disorderly inns or ale-houses, 
 bawdy-houses, gaming-houses, stage-plays, unlicensed booths and 
 stages for rope-dancers, mountebanks, and the like, are public nui- 
 sances, and may upon indictment be suppressed and fined. • 
 
 CHAPTER XII. 
 
 [BL. COMM. — BOOK IV. CH. XIV.] 
 Of Homicide. 
 
 In the preceding chapters we have considered, first, such 
 crimes and misdemeanors as violate or transgress the law of 
 nations ; secondly, such as more especially affect the king, the 
 father and representative of his people ; thirdly, such as more 
 directly infringe the rights of the public or commonwealth, taken 
 in its collective capacity ; and are now, lastly, to take into con- 
 sideration those which in a more pecul'ar manner affect -ind 
 injure individuals or private subjects. 
 
 Were these injuries indeed confined to individuals only, and 
 
928 OF HOMICIDE. 
 
 did they affect none but their immediate objects, they would fall 
 absolutely under the notion of private wrongs ; for which a sat- 
 isfaction would be due only to the party injured ; the manner of 
 obtaining which was the subject of our inquiries in the preceding 
 book. But the wrongs, which we are now to treat of, are of a 
 much more extensive consequence ; i. Because it is impossible 
 they can be committed without a violation of the laws of nature ; 
 of the moral as well as political rules of right : 2. Because they 
 include in them almost always a breach of the public peace : 3. 
 Because by their example and evil tendency they threaten and 
 endanger the subversion of all civil society. Upon these account»s 
 it is, that, besides the private satisfaction due and given in many 
 cases to the individual, by action for the private wrong, the 
 government also calls upon the offender to submit to public 
 punishment for the public crime. And the prosecution of these 
 offences is always at the suit and in the name of the king, in 
 whom by the texture of our constitution the jus gladii, or execu- 
 tory power of the law, entirely resides. Thus too, in the old 
 Gothic constitution, there was a threefold punishment inflicted 
 on all delinquents ; first, for the private wrong to the party in 
 jured ; secondly, for the offence against the king by disobedience 
 to the laws ; and thirdly, for the crime against the public by their 
 evil example. Of which we may trace the groundwork, in what 
 Tacitus tells us of his Germans ; that, whatever offenders were 
 fined, "pars miclctce regi, vel civitati, pars ipsi, qui vindicatur vel 
 propinqtds ejus, exsolvitur." 
 
 These crimes and misdemeanors against private subjects are 
 principally of three kinds ; against their persons, their habitations, 
 and their property. 
 
 Of crimes injurious to the persons of private subjects, the 
 most principal and important is the offence of taking away that 
 life, which is the immediate gift of the great Creator; arid of 
 which therefore no man can be entitled to deprive himself or 
 mother, but in some manner either expressly commanded in, or 
 evidently deducible from, those laws which the Creator has given 
 us ; the divine laws, I mean, of either nature or revelation. The 
 subject therefore of the present chapter will be the offence of 
 homicide or destroying the life of man, in its several stages of 
 guilt, arising from the particular circumstances of mitigation or 
 aggravation which attend it. 
 
OF HOMICIDE. 929 
 
 Now homicide, or the killing of any human creature, is of 
 three kinds : justifiable, excusable, and felonious. The first has 
 no share of guilt at all ; the second very little : but the third is 
 the highest crime against the law of nature that man is capable 
 of committing. 
 
 I. Justifiable homicide is of divers kinds. 
 
 I. Such as is owing to some unavoidable necessity, without 
 any will, intention, or desire, and without any inadvertence or 
 negligence in the party killing, and therefore without any shadow 
 of blame. As, for instance, by virtue of such an oifice as 
 obliges one, in the execution of public justice, to put a malefactor 
 to death, who hath forfeited his life by the laws and verdict of 
 his country. This is an act of necessity, and even of civil duty ; 
 and therefore not only justifiable, but commendable, where the 
 law requires it. But the law must reqiih'e it, otherwise it is not 
 justifiable: therefore, wantonly to kill the greatest of malefac- 
 tors, a felon or a traitor, attainted, or outlawed, deliberately, un- 
 compelled, and extrajudicially, is murder. For, as Bracton very 
 justly observes, " istud komicidittm, si fit ex livore, vel delecta- 
 tione effundendi humanuin sanguinem, licet juste occidatur iste, 
 tamen occisor peccat mortaliter, propter intentionem corruptam." 
 And farther, if judgment of death be given by a judge not au- 
 thorized by lawful commission, and execution is done according- 
 ly, the judge is guilty of murder. And upon this account Sir 
 Matthew Hale himself, though he accepted the place of a judge 
 of the common pleas under Cromwell's government (since it is 
 necessary to decide the disputes of civil property in the worst of 
 times), yet declined to sit on the crown side at the assizes, and 
 try prisoners ; having very strong objections to the legality of 
 the usurper's commission ; a distinction perhaps rather too re- 
 fined ; since the punishment of crimes is at least as necessary 
 to society, as maintaining the boundaries of property. Also 
 such judgment, when legal, must be executed by the proper offi- 
 cer, or his appointed deputy ; for no one else is required by law 
 to do it, which requisition it is that justifies the homicide. If 
 another person doth it of his own head, it is held to be murder : 
 fiven though it be the judge himself. It must farther beexecuted, 
 servaio juris ordine ; it must pursue the sentence of the court. 
 If an officer beheads one who is adjudged to be hanged, or vice 
 versa, it is murder : for he is merely ministerial, and therefore 
 
 to 
 
930 OF HOMICIDE. 
 
 only justified when he acts under the authority and compulsion 
 of the law : but if a sheriff changes one kind of death for an- 
 other, he then acts by his own authority, which extends not to 
 the commission of homicide, and besides, this license might oc- 
 casion a very gross abuse of his power. The king indeed may 
 remit part of a sentence ; as in the case of treason, all but the 
 beheading ; but this is no change, no introduction of a new pun- 
 ishment ; and in the case of felony, where the judgment is to be 
 hanged, the king (it hath been said) cannot legally order even 
 a peer to be beheaded. But this doctrine will be more fully con- 
 sidered in a subsequent chapter. 
 
 Again ; in some cases homicide is justifiable, rather by the 
 permission, than by the absolute command, of the law, either for 
 the advancem.ent of public justice, which without such indemnifi- 
 cation would never be carried on with proper vigor or, in such 
 instances where it is committed for the prevention of some 
 atrocious crime, which cannot otherwise be avoided. 
 
 2. Homicides, committed for the advancement of ^ivibWc justice, 
 are ; i. Where an officer, in the execution of his office, either 
 in a civil or criminal case, kills a person that assaults and re- 
 sists him. 2. If an officer, or any private person, attempts to 
 take a man charged with felony, and is resisted ; and, in the en- 
 deavor to take him, kills him. This is similar to the old Gothic 
 constitutions, which (Stiernhook informs us) "furem, si aliter 
 capi non posset, occidere permittunt." 3. In case of a riot, or re- 
 bellious assembly, the officers endeavoring to disperse the mob 
 are justifiable in killing them, both at common law, and by the 
 riot act, i Geo. I., ch. 5. 4. Where the prisoners in a jail, or 
 going to a jail, assault the jailer, or officer, and he in his defence 
 kills any of them, it is justifiable for the sake of preventing an 
 escape. But in all these cases, there must be an apparent neces- 
 sity on the officer's side ; viz., that the party could not be arrested 
 or apprehended, the riot could not be suppressed, the prisoners 
 could not be kept in hold, unless such homicide were committed , 
 otherwise, without such absolute necessity, it is not justifiable. 
 3. In the next place, such homicide as is committed for the 
 prevention of any forcible and atrocious crime, is justifiable by 
 the law of nature : and also by the law of England, as it stood so 
 early as the time of Bracton, and it is since declared in statute 
 24 Hen. VIII., ch. 5. If any person attempts a robbery or 
 
OF HOMICIDE. 931 
 
 murder of another, or attempts to break open a house in iht 
 night-time (which extends also to an attempt to burn it), and 
 shall be killed in such attempt, the slayer shall be acquitted and 
 discharged. This reaches not to any crime unaccompanied with 
 force, as picking of pockets ; or to the breaking open of any 
 house in the day-time, unless it carries with it an attempt of rob- 
 bery also. So the Jewish law, which punished no theft with 
 death, makes homicide only justifiable in case of nocturnal house- 
 breaking; if a thief be found breaking up, and he be "smitten 
 that he die, no blood shall be shed for him: but if the sun be 
 risen upon him, these shall blood be shed for him ; for he should 
 have made full restitution." At Athens, if any theft was com- 
 mitted by night, it was lawful to kill the criminal, if taken in the 
 fact : and by the Roman law of the twelve tables, a thief might 
 be slain by night with impunity : or even by day, if he armed 
 himself with any dangerous weapon : which amounts to nearly 
 the same as is permitted by our own constitutions. 
 
 The Roman law also justifies homicide, when committed in 
 defence of the chastity either of one's self or relations : and so 
 also, according to Selden, stood the law in the Jewish republic. 
 The English law likewise justifies a woman killing one who at- 
 tempts to ravish her : and so too the husband or father may 
 justify killing a man, who attempts a rape upon his wife or 
 daughter : but not if he takes them in adultery by consent, for 
 the one is forcible and felonious, but not the other. And I make 
 no doubt but the forcibly attempting a crime of a still more de- 
 testable nature, may be equally resisted by the death of the un- 
 natural aggressor. For the one uniform principle that runs 
 through our own, and all other laws, seems to be this ; that where 
 a crime, in itself capital, is endeavored to be committed by 
 force, it is lawful to repel that force by the death of the party at- 
 tempting. But we must not carry this doctrine to the same 
 visionary length that Mr. Locke does : who holds, " that all man- 
 ner of force without right upon a inan's person, puts him in a 
 state of war with the aggi-essor ; and, of consequence, that being 
 in such state of war, he may lawfully kill him that puts him under 
 this unnatural restraint." However just this conclusion may be 
 in a state of uncivilized nature, yet the law of England; like that 
 of every other well-regulated community, is too tender of the 
 public peace, too careful of the lives of the subjects, to'adopt so 
 
932 OF HOMICIDii. 
 
 contentious a system ; nor will suffer with impunity any crime 
 to be prevented by death, unless the same, if committed, would 
 also be punished by death.' 
 
 In these instances of justifiaMe homicide, it may be observed 
 that the slayer is in no kind of fault whatsoever, not even in the 
 minutest degree ; and is therefore to be totally acquitted and dis- i 
 charged, with commendation rather than blame. But that is not 
 quite the case in excusable homicide, the very name whereof im- 
 ports some fault, some error, or omission : so trivial, however, 
 that the law excuses it from the guilt of felony, though in strict- 
 ness it judges it deserving of some little degree of punishment. 
 
 II. Excusable homicide is of two sorts ; either per infor- 
 tunium, by misadventure ; or se defendendo, upon a principle of 
 self-preservation. We will first see wherein these two species of 
 homicide are distinct, and then wherein they agree. 
 
 I. Homicide per inforiunium o\ misadventure, is where a man, 
 doing a lawful act, without any intention of hurt, unfortunately 
 kills another : as where a man is at work with a hatchet, and the 
 head thereof flies off, and kills a stander-by ; or where a person 
 qualified to keep a gun, is shooting at a mark, and undesignedly 
 kills a man : for the act is lawful, and the effect is merely 
 accidental. So where a parent is moderately correcting his 
 child, a master his apprentice or scholar, or an officer punishing 
 a criminal, and happens to occasion his death, it is only misad- 
 venture ; for the act of correction is lawful : but if he exceeds 
 the bounds of moderation, either in the manner, the instrument, 
 or the quantity of punishment, and death ensues, it is manslaught- 
 er at leaat, and in some cases (according to the circumstances) 
 murder ; for the act of immoderate correction is unlawful. Thus, 
 by an edict of the emperor Constantine, when the rigor of the 
 Roman law with regard to slaves began to relax and soften, a 
 1 Oae who is opposing and endeavoring to prevent a forcible and atrocious 
 felony may lawfully use all necessary force for that purpose, and resist all at- 
 tempts to inflict bodily injury upon himself, even to the killing of the felon. 
 {Ruloffv. People, 45 N. Y. 213.) It is not necessary for his justification to 
 prove that the felony would actually have been committed, if the wrongdoer's 
 life had not been taken ; for a man is justified, under such circumstances, in 
 acting as if the danger really existed, where there is reasonable apprehension 
 of danger, i.e., such ground to anticipate the commission of the threatened 
 crime, as would satisfy a man of prudence, caution, and discretion, that it 
 would really be consummated. (2 N. Y. 193; 131 Mass. 423; 69 la. 426.) 
 
OF HOMICIDE. 933 
 
 rtiaster was allowed to chastise his slaves with rods and imprison- 
 ment, and, if death accidentally ensued, he was guilty of no crime : 
 but if he struck him with a club or a stone, and thereby occa- 
 sioned his death ; or if in any other yet grosser manner, " immoder- 
 ate s^uojure utatur, tunc reus homicidii sit." 
 
 But to proceed. A tilt or tournament, the martial diversion 
 of our ancestors, was, however, an unlawful act : and so are box- 
 ing and sword-playing, the succeeding amusement of their pos- 
 terity : and, therefore, if a knight in the former case, or a gladia- 
 tor in the latter, be killed, such killing is felony or manslaughter. 
 But if the king command or permit such diversion, it is said to 
 be only misadventure ; for then the act is lawful. In the like 
 manner as by the laws both of Athens and Rome, he who killed 
 another in the pancratium, or public games authorized or per- 
 mitted by the State, was not held to be guilty of homicide. 
 Likewise to whip another's horse, whereby he runs over a child 
 and kills him, is held to be accidental in the rider, for he had 
 done nothing unlawful : but manslaughter in the person who 
 whipped him, for the act was a trespass and at best a piece of idle- 
 ness, of inevitably dangerous consequence. And in general, if 
 death ensues in consequence of an idle, dangerous, and unlawful 
 sport, as shooting or casting stones in a town, or the barbarous 
 diversion of cock-throwing, in these and similar cases, the slayer 
 is guilty of manslaughter, and not misadventure only, for these 
 are unlawful acts. 
 
 2. Homicide in self-defence, or se defendendo, upon a sudden 
 aifray, is also excusable, rather than justifiable, by the English 
 law. This species of self-defence must be distinguished from 
 that just now mentioned, as calculated to hinder the perpetration 
 of a capital crime ; which is not only a matter of excuse, but of 
 justification. But the self-defence which we are now speaking 
 of, is that whereby a man may protect himself from an assault or 
 the like, in the course of a sudden broil or quarrel, by killing him 
 who assaults him. And this is what the law expresses by the 
 word chance-medley, or (as some rather choose to write it) chaud- 
 medley, the former of which in its etymology signifies a casual 
 affray, the latter an affray in the heat of blood or pas- 
 sion ; both of them of pretty much the same import : but 
 the former is in common speech too often erroneously ap- 
 plied to any manner of homicide by misadventure; where 
 
934 OF HOMICIDE. 
 
 as it appears by the statute 24 Henry VIII., ch. 5, ana 
 our ancient books, that it is properly applied to such killing 
 as happens in self-defence upon a sudden rencounter. This right 
 of natural defence does not imply a right of attacking : for, in- 
 stead of attacking one another for injuries past or impending, 
 men need only have recourse to the proper tribunals of justice. 
 They cannot therefore legally exercise this right of preventive 
 defence, but in sudden and violent cases when certain and im- 
 mediate suffering would be the consequence of waiting for the 
 assistance of the law. Wherefore to excuse homicide by the 
 plea of self-defence, it must appear that the slayer had no other 
 possible (or, at least, probable) means of escaping from his 
 assailant. 
 
 It is frequently difficult to distinguish this species of homicide 
 (upon chance-medley in self-defence) from that of manslaughter, 
 in the proper legal sense of the word. But the true criterion 
 between them seems to be this : when both parties are actually 
 combating at the time when the mortal stroke is given, the slayer 
 is then guilty of manslaughter ; but if the slayer has not begun 
 the fight, or (having begun) endeavors to decline any further 
 struggle, and afterwards, being closely pressed by his antagonist, 
 kills him to avoid his own destruction, this is homicide excusable 
 by self-defence. For which reason the law requires, that the per- 
 son, who kills another in his own defence, should have retreated 
 as far as he conveniently or safely can, to avoid the violence of 
 the assault, before he turns upon his assailant ; and that not fac- 
 titiously, or in order to watch his opportunity, but from a real 
 tenderness of shedding his brother's blood. And though it may 
 be cowardice, in time of war between two independent nations, 
 to flee from an enemy ; yet between two fellow-subjects the law 
 countenances no such point of honor : because the king and his 
 courts are the vindices injuriarum., and will give to the party 
 wronged all the satisfaction he deserves. In this the civil law 
 also agrees with ours, or perhaps goes rather farther : " qui cum 
 aliter tueri se non possunt, damni culpam dederint, innoxii sunt.' 
 The party assaulted must therefore flee as far as he conveniently 
 can, either by reason of some wall, ditch, or other impediment ; or 
 as far as the fierceness of the assault will permit him: for it may 
 be so fierce as not to allow him to yield a step, without manifest 
 danger of his life, or enormous bodily harm : and then in his de- 
 
OF HOMICIDE. 935 
 
 fence he may kill his assailant instantly.^ And this is the 
 doctrine of universal justice, as well as of the municipal law. 
 
 And as the manner of the defence, so is also the time to be 
 considered : for if the person assaulted does not fall upon the 
 aggressor till the affray is over, or when he is running away, this 
 is revenge, and not defence. Neither under the color of self- 
 defence, will the law permit a man to screen himself from the 
 guilt of deliberate murder : for if two persons, A and B, agree to 
 fight a duel, and A gives the first onset, and B retreats as far as 
 he safely can, and then kills A, this is murder ; because of the 
 previous malice an4 concerted design. But if A upon a sudden 
 quarrel, assaults B first, and upon B's returning the assault, A 
 really and bona fide flees ; and, being driven to the wall, turns 
 again upon B and kills him : this may be se defendendo according 
 to some of our writers ; though others have thought this opinion 
 too favorable ; inasmuch as the necessity, to which he is at last 
 reduced, originally arose from his own fault. Under this excuse, 
 of self-defence, the principal civil and natural relations are com- 
 prehended ; therefore master ind servant, parent and child, hus- 
 band and wife, killing an asRailant in the necessary defence of 
 each other respectively, are excused ; the act of the relation 
 assisting being construed the same as the act of the party him- 
 self. 
 
 There is one species of homicide se defendendo, where the 
 party slain is equally innocent as he who occasions his death : 
 and yet this homicide is also excusable from the great universal 
 principle of self-preservation, which prompts every man to save 
 his own life preferably to that of another, where one of them 
 must inevitably perish. As, among others, in that case mentioned 
 by Lord Bacon, where two persons, being shipwrecked, and get- 
 ting on the same plank, but finding it not able to save them both, 
 
 2 One who is himself without fault, if attacked by another, may kill his assailant, if 
 the circumstances be such as to furnish reasonable ground for apprehending a de- 
 sign to take h'is life, or do him great bodily harm, and that the danger is imminent, 
 though, in point of fact, there was no design to do him bodily harm, nor danger that 
 it would be done. {Shorter v. People, 2 N. Y. 193; Patterson v. People, 46 Barb. 625.) 
 But when one believes himself about to be attacked by another, it is his duty, if pos- 
 sible, to avoid it; the right of attack for self-defense does not arise until he has done 
 everything in his power to avoid its necessity. {People v. Sullivan, 7 N. Y. 396.) 
 A person assaulted should " retreat to the wall," unless the danger is such as to forbid 
 (69 la. 705; 90 Mo. 608; 67 Cal. 646 ; see 73 Mich. 15.) 
 
936 OF HOMICIDE. 
 
 one of them thrusts the other from it, whereby he is di'owned 
 He who thus preserves his own Ufa at the expense of another 
 man's is excusable through unavoidable necessity, and the prin- 
 ciple of self-defence : since their both remaining on the same 
 weak plank is a mutual, though innocent, attempt upon, and an 
 endangering of, each other's life.f 
 
 Let us next take a view of those circumstances wherein these 
 two species of homicide, by misadventure and self-defence, agree ; 
 and those are in their blame and punishment. For the law sets 
 so high a value upon the life of a man, that it always intends 
 some misbehavior in the person who takes it away unless by 
 the command or express permission of the law. In the case of 
 misadventure, it presumes negligence, or at least a want of suffi- 
 cient caution in him who was so unfortunate as to commit it; 
 who therefore is not altogether faultless. And as to the neces- 
 sity which excuses a man who kills another se defendendo, Lord 
 Bacon entitles it necessitas culpabilis, and thereby distinguishes 
 it from the former necessity of killing a thief or a malefactor. 
 For the law intends that the quarrel or assault arose from some 
 unknown wrong, or some provocation, either in word or deed : 
 and since in quarrels both parties may be, and usually are, in 
 some fault ; and it scarce can be tried who was originally in the 
 wrong ; the law will not hold the survivor entirely guiltless. But 
 it is clear, in the other case, that where I kill a thief that breaks 
 into my house, the original default can never be upon my side. 
 The law besides may have a farther view, to make the crime of 
 homicide more odious, and to caution nien how they venture to 
 kill another upon their own private judgment ; by ordaining, that 
 he who slays his neighbor, without an express warrant from the 
 law so to do, shall in no case be absolutely free from guilt. 
 
 The penalty inflicted by our laws is said by Sir Edward Coke 
 to have been anciently no less than death ; which, however, is 
 with reason denied by later and more accurate writers. It seems 
 rather to have consisted in a forfeiture, some say of all the goods 
 and chattels, others of only part of them, by way of fine or were- 
 gild: which was probably disposed of, as in France, in pios usus, 
 according to the humane superstition of the times, for the ben- 
 efit of his soul who was thus suddenly sent to his account, with 
 all his imperfections on his head. But that reason having long 
 ceased, and the penalty (especially if a total forfeiture) growing 
 
 tin Queen v. Dudley, 14 Q. B. D. 273 (denying this dictutn of Lord Bacon) shipwrecked seamen 
 who killed a comrade and ate hjs fi^sh to save their own lives were held guilty of murder. 
 
OF HOMICIDE. 937 
 
 more severe than was intended, in proportion as personal prop- 
 erty has become more considerable, the delinquent has now, and 
 has had as early as our records will reach, a pardon and writ of 
 restitution of his goods as a matter of course and right, only 
 paying for suing out the same. And indeed to prevent this ex- 
 pense, in cases where the death has notoriously happened by 
 misadventure or in self-defence, the judges will usually permit 
 (if not direct) a general verdict of acquittal.' 
 
 III. Felonious homicide is an act of a very different nature 
 Irom the former, being the killing of a human creature, of any 
 age or sex, without justification or excuse. This may be done 
 either by killing one's self or another man. 
 
 Self-murder, the pretended heroism, but real cowardice of the 
 Stoic philosophers, who destroyed themselves to avoid those ills 
 which they had not the fortitude to endure, though the attempt- 
 ing it seems to be countenanced by the civil law, yet was pun- 
 ished by the Athenian law with cutting off the hand, which com- 
 mitted the desperate deed. And also the law of England wisely 
 and religiously considers, that no man hath a power to destroy 
 life, but by commission from God, the author of it : and, as the 
 suicide is guilty of a double offence ; one spiritual, in invading 
 the prerogative of the Almighty, and rushing into his immediate 
 presence uncalled for ; the other temporal, against the king, who 
 hath an interest in the preservation of all his subjects ; the law 
 has therefore ranked this among the highest crimes, making it a 
 peculiar species of felony, a felony committed on one's self. 
 And this admits of accessories before the fact, as well as other 
 felonies ; for if one persuades another to kill himself, and he 
 does so, the adviser is guilty of murder. A felo de se, therefore, 
 is he that deliberately puts an end to his own existence, or com- 
 mits any unlawful malicious act, the consequence of which is his 
 own death : as if attempting to kill another, he runs upon his 
 
 "The distinction between justifiable and excusable homicide is now ol 
 little practical importance, since, in both classes of cases, the circumstances 
 under which the act of homicide is committed, furnish a complete defense 
 and justification, and no penalty of any kind is incurred. Both these forms 
 of homicide may, therefore, be included within a single class, and termed 
 defensible, or innocent. In some of the American States, the distinction has 
 in fact been discarded ; others have retained it nominally, as a basis of classi- 
 fication, but there is no difference established in regard to criminal respoit' 
 •"bilitv. 
 
938 OF HOMICIDE. 
 
 antagonist's sword ; or, shooting at another, the gun bu; sts ;.nd 
 kills himself. The party must be of years of discretion, and in 
 his senses, else it is no crime. But this excuse ought not to be 
 strained to that length, to which our coroner's juries are apt to 
 carry it, viz., that the very act of suicide is an evidence of insan- 
 ity ; as if every man, who acts contrary to reason, had no reason 
 at all ; for the same argument would prove every other criminal 
 non compos, as well as the self-murderer. The law very ration- 
 ally judges, that every melancholy or hypochondriac fit does not 
 deprive a man of the capacity of discerning right from wrong ; 
 which is necessary, as was observed in a former chapter, to form 
 a legal excuse. And, therefore, if a real lunatic kills himself in 
 a lucid interval, he is z.felo de se as much as another man. 
 
 But now the question follows, what punishment can human 
 laws inflict on one who has withdrawn himself from their reach .' 
 They can only act upon what he has left behind him, his reputa- 
 tion and fortune : on the former, by an ignominious burial in 
 ;he highway, with a stake driven through his body ; on the 
 latter, by a forfeiture of all his goods and chattels to the king ; 
 hoping that his care for either his own reputation, or the welfare 
 of his family, would be some motive to restrain him from so des- 
 perate and wicked an act. And it is observable, that this for- 
 feiture has relation to the time of the act done in the felon's 
 lifetime, which was the cause of his death. As if husband and 
 wife be possessed jointly of a term of years in land, and the hus- 
 band drowns himself ; the land shall be forfeited to the king, and 
 the wife shall not have it by survivorship. For by the act of 
 casting himself into the water he forfeits the term ; which gives a 
 title to the king, prior to the wife's title by survivorship, which 
 could not accrue till the instant of her husband's death. And 
 though it must be owned that the letter of the law herein borders 
 a little upon severity, yet it is some alleviation that the power of 
 mitigation is left in the breast of the sovereign, who upon this, 
 as on all other occasions, is reminded by the oath of his office to 
 ■execute judgment in mercy.* 
 
 » The punishment of burial in the highway, with a stake driven through the body, 
 has been abolished. The present law provides that the remains shall be buried in 
 the church yard or other burial ground of the parish or place where the deceased 
 would be interred, had he not been a suicide, but without the rites of Christian burial 
 (45 & 46 Vict. c. 19.) In the United States suicide is not a criminal offense, and 
 there is no mode of punishment affecting either the body or the property of the de- 
 ceased. (See 123 Mass. 422.) An attempt to commit suicide is, however, sometimes 
 declared punishable. (116 N. Y. 537.) 
 
OF HOMICIDE. 939 
 
 The other species of criminal homicide is that of killing an- 
 oilier man. But in this there are also degrees of guilt, which 
 divide the offence into manslaughter and murder. The differ- 
 ence between which may be partly collected from what has been 
 incidentally mentioned in the preceding articles, and principally 
 consists in this, that manslaughter, when voluntary, arises from 
 the sudden heat of the passions, murder from the wickedness of 
 the heart. 
 
 I. Manslaughter is therefore thus defined, the unlawful kill- 
 ing of another without malice either express or implied ; which 
 may be either voluntarily, upon a sudden heat ; or involuntarily, 
 but in the commission of some unlawful act. And hence it fol- 
 lows, that in manslaughter there can be no accessories before the 
 fact ; because it must be done without premeditation. . 
 
 As to the first, or voluntary branch : if upon a sudden quar- 
 rel two persons fight and one of them kills the other, this is 
 manslaughter : and so it is, if they upon such an occasion go 
 out and fight in a field ; for this is one continued act of passion ; 
 and the law pays that regard to human frailty, as not to put a 
 hasty and a deliberate act upon the same footing with regard to 
 guilt. So also if a man be greatly provoked, as by pulling his 
 nose, or other great indignity, and immediately kills the aggres- 
 sor, though this is not excusable se defendendo, since there is no 
 absolute necessity for doing it to preserve himself ; yet neither is 
 it murder, for there is no previous malice ; but it is manslaugh- 
 ter. But in this, and in every other case of homicide upon 
 provocation, if there be a sufficient cooling-time for passion to 
 subside and reason to interpose, and the person so provoked 
 afterwards kills the other, this is deliberate revenge, and not heat 
 of blood, and accordingly amounts to murder. So if a man takes 
 another in the act of adultery with his wife, and kills him directly 
 upon the spot : though this was allowed by the laws of Solon, as 
 likewise by the Roman civil law (if the adulterer was found in 
 the husband's own house), and also among the ancient Goths ; 
 yet in England it is not absolutely ranked in the class of justrti- 
 able homicide, as in the case of a forcible rape, but it is man- 
 slaughter. It is, however, the lowest degree of it; and, there- 
 fore, in such a case the court directed the burning in the hand 
 to be gently inflicted, because there could not be a greater pro- 
 vocation. Manslaughter, therefore on a sudden provocation 
 
940 OF HOMICIDE. 
 
 differs from excusable homicide se defendendo in this : that in 
 one case there is an apparent necessity, for self-preservation, to 
 kill the aggressor : in the other, no necessity at all, being only a 
 sudden act of revenge. 
 
 The second branch, or involuntary manslaughter, differs 
 also from homicide excusable by misadventure in this ; that 
 misadventure always happens in consequence of a lawful 
 act, but this species of manslaughter in consequence of an un- 
 lawful one. As if two persons play at sword and buckler, 
 unless by the king's command, and one of them kills the other; 
 this is manslaughter, because the original act was unlawful ; but 
 it is not murder, for the one had no intent to do the other any 
 personal mischief. So where a person does an act, lawful in itself, 
 but in an unlawful manner, and without due caution and circum- 
 spection : as when a workman flings down a stone or piece of 
 timber into the street, and kills a man ; this may be either misad- 
 venture, manslaughter, or murder, according to the circumstances 
 under which the original act was done : if it were in a country 
 village, where few passengers are, and he calls out to all people 
 to have a care, it is misadventure only : but if it were in London, 
 or other populous town, where people are continually passing, it 
 is manslaughter, though he gives loud warning ; and murder, if 
 he knows of their passing, and gives no warning at all, for then 
 it is malice against all mankind. And, in general, when an in- 
 voluntary killing happens in consequence of an unlawful act, it 
 will be either murder or manslaughter, according to the nature of 
 the act which occasioned it. If it be in prosecution of a felonious 
 intent, or in its consequences naturally tended to bloodshed, it 
 will be murder ; but, if no more was intended than a mere civil 
 trespass, it will only amount to manslaughter. 
 
 Next as to the punishment of this degree of homicide : the 
 crime of manslaughter amounts to felony, but within the benefit 
 of clergy ; and the offender shall be burnt in the hand, and forfeit 
 all his goods and chattels. • 
 
 2. We are next to consider the crime of deliberate and wilful 
 murder ; a crime at which human nature starts, and which is I 
 believe punished almost universally throughout the world with 
 death. The words of the Mosaical law (over and above the 
 general precept to Noah, tliat " whose sheddeth man's blood, by 
 man shall his blood be shed ") are very emphatical in prohibiting 
 
OF HOMICIDE. ,^4, 
 
 the pardon of murderers. " Moreover ye shall take no satisfaction 
 for the life of a murderer, who is guilty of death, but he shall 
 surely be put to death ; for the land cannot be cleansed of the 
 blood that is shed therein, but by the blood of him that shed it." 
 But let us now consider the definition of this great offence. 
 
 The name of murder (as a crime) was anciently applied only 
 to the secret killing of another ; (which the word moerda signifies 
 in the Teutonic language) ; and it was defined, " homicidium quod 
 Hullo vidente, nulla sciente, clam perpetratur : " for which the viil 
 wherein it was committed, or (if that were too poor) the whole 
 hundred was liable to a heavy amercement ; which amercement 
 itself was also denominated murdrum. This was an ancient usage 
 among the Goths in Sweden and Denmark ; who supposed the 
 neighborhood, unless they produced the murderer, to have perpe- 
 trated or at least connived at the murder ; and according to Bracton, 
 was introduced into this kingdom by King Canute, to prevent his 
 countrymen, the Danes, from being privily murdered by the Eng- 
 lish ; and was afterwards continued by William the Conqueror, for 
 the like security to his own Normans. And therefore if, upon in- 
 quisition had, it appeared that the person found slain was an 
 Englishman (the presentment whereof was denominated engles- 
 cherie), the country seems to have been excused from this bur- 
 then. But, this difference being totally abolished by statute 14 
 Edw. III., ch 4, we must now (as is observed by Staundforde) de- 
 fine murder in quite another manner, without regarding whether 
 the party slain was killed openly or secretly, or whether he was 
 of English or foreign extraction. 
 
 Murder is therefore now thus defined or rather described by 
 Sir Edward Coke ; " when a person of sound memory and discre- 
 tion unlawfully killeth any reasonable creature* in being, and 
 under the king's peace, with malice aforethought, either express 
 or implied." The best way of examining the nature of this 
 crime will be by considering the several branches of this defini- 
 tion. 
 
 First, it must be committed by a person of sound memory 
 and discretion : for lunatics or infants, as was formerly observed, 
 are incapable of committing any crime : unless in such cases 
 where they show a consciousness of doing wrong, and of course 
 a discretion, or discernment, between good and evil. 
 
 Next, it happens when a person of such sound discretion u» 
 
942 OF HOMICIDE. 
 
 lawfully killeth. The unlawfulness arises from the killing with- 
 out warrant or excuse : and there must also be an actual killing 
 to constitute murder ; for a bare assault, with intent to kill, is 
 only a great misdemeanor, though formerly it was held to be 
 murder. The killing ipay be by poisoning, striking, starving, 
 drowning, and a thousand other forms of death, by which human 
 nature may be overcome. And if a person be indicted for one 
 species of killing, as by poisoning, he cannot be convicted by 
 evidence of a totally different species of death, as hy shooting '^'I'Cn 
 a pistol, or starving. But where they only differ in circumstances, 
 as if a wound be alleged to be given with a sword, and it proves 
 to have arisen from a staff, an axe, or a hatchet, this difference 
 is immaterial. Of all species of deaths, the most detestable is 
 that of poison ; because it can of all others be the least pre- 
 vented either by manhood or forethought. And therefore by 
 the statute 22 H. VIII., ch. 2, it was made treason, and a more 
 grievous and lingering kind of death was inflicted on it than the 
 common law allowed ; namely, boiling to death : but this act did 
 not live long, being repealed by i Edw. VI., ch. 12. There was 
 also, by the ancient common law, one species of killing held to 
 be murder, which may be dubious at this day ; as there hath not 
 been an instance wherein it has been held to be murder for many 
 ages past : I mean by bearing false witness against another, 
 ,vith an express premeditated design to take away his life, so as 
 the innocent person be condemned and executed. The Gothic 
 aws punished in this case, both the judge, the witnesses, and 
 .hx". prosecutor. And, among the Romans, the lex Cornelia, 
 If. <iicariis, punished the false witness with death, as being guilty 
 if a species of assassination. And there is no doubt but this is 
 (jqu.illy murder vciforo conscientice as killing with a sword; though 
 ihe .TiOdern law (to avoid the danger of deterring witnesses from 
 jiving evidence upon capital prosecutions, if it must be at the 
 peril of their own lives) has not yet punished it as such. If a 
 man, however, does such an act of which the probable consequence 
 may be, and eventually is, death ; such killing may be murder, 
 although no stroke be struck by himself, and no killing be pri- 
 marily intended; as was the case of the unnatural son, who ex 
 jiosed his sick father to the air, against his will, by reason where- 
 of he died : of the harlot, who laid her child under leaves in an 
 orchard, where a kite struck it and killed it ; and of the parish 
 
OF HOMICIDE. 943 
 
 officers, who shifted a child from parish to parish, till it died for 
 want of care and sustenance. So too, if a man hath a beast thai 
 is used to do mischief ; and he knowing it, suffers it to go abroad, 
 and it kills a man ; even this is manslaughter in the owner ; but 
 if he had purposely turned it loose, though barely to frighten peo- 
 ple, and make what is called sport, it is with us (as in the Jewish 
 law) as much murder, as if he had incited a bear or dog to worry 
 them. If a physician or surgeon gives his patient a potion or 
 plaster to cure him, which contrary to expectation kills him, this 
 is neither murder nor manslaughter, but misadventure ; and he 
 •shall not be punished criminally, however liable he might form- 
 erly have been to a civil action for neglect or ignorance ; but it 
 hath been holden, that if it be not a regular physician or surgeon, 
 who administers the medicine or performs the operation, it is 
 manslaughter at the least.^ Yet Sir Matthew Hale very justly 
 
 ^The present rule upon this subject has been thus declared in an English 
 case. " There is no difference between a licensed physician or surgeon, and a 
 person acting as physician or surgeon, without license. In either case, if a 
 party, having a competent degree of skill and knowledge, makes an accidental 
 mistake in his treatment of a patient, through which mistake death ensues, he 
 is not thereby guilty of manslaughter ; but if, where proper medical assistance 
 can be had, a person totally ignorant of the science of medicine takes on him- 
 self to exhibit a violent and dangerous remedy to one laboring under disease, 
 aad death ensues in consequence of that dangerous remedy having been so 
 administered, then he is guilty of manslaughter." (^Rexv. Webb, i M. & Rob. 
 405.) But in some of the States of this country a somewhat different doctrine 
 has been established. Thus it has been held that the death of a man, killed 
 by voluntarily following a medical prescription, cannot be adjudged felony in 
 the party prescribing, unless he, however ignorant of medical science in 
 general, had so much knowledge or probable information of the fatal tendency 
 of the prescription, that it may be reasonably presumed by the jury to be the 
 effect of obstinate, wilful rashness at the least, and not of an honest intention 
 and expectation to cure. {Rice v. State, 8 Mo. 561 ; State v. Schulz, 55 la. 
 628.) But it has also been adjudged manslaughter to cause a person's death 
 by gross recklessness of treatment, though the treatment used was without 
 evil intent, and by such person's consent. {Com7H. v. Pierce, 138 Mass. 165 ; 
 see 38 Ark. 605.) 
 
 Interesting questions arise in regard to criminal responsibility, when two 
 or more causes co-operate to occasion a person's death ; as if a wound be 
 given, and by improper medical treatment, or lack of attention, the injury 
 results fatally. The rule upon this subject is well stated as follows : " If 
 the wound was a dangerous wound, that is, calculated to endanger or destroy 
 life, and death ensued therefrom, it is sufficient proof of the offense of 
 murder, or manslaughter; and the person who inflicted it is responsible, 
 though it may appear that the deceased might have recovered, if he had 
 taken proper care of himself, or submitted to a surgical operation ; or that 
 
5.^4 <)P HOMICIDE. 
 
 questions the law of this determination. In order also to mak« 
 the killing murder, it is requisite that the party die within a year 
 and a day after the stroke received, or cause of death adminis- 
 tered ; in the computation of which, the whole day upon which 
 the hurt was done shall be reckoned the first. 
 
 Farther : the person killed must be " a reasonable creature in 
 being, and under the king's peace," at the time of the killing. 
 Therefore to kill an alien, a Jew, or an outlaw, who are all under 
 the king's peace and protection, is as much murder as to kill the 
 most regular-born Englishman ; except he be an alien enemy 
 in time of war. To kill a child in its mother's womb, is now no 
 murder, but a great misprision : but if the child be born alive, 
 and dieth by reason of the potion or bruises it received in the 
 womb, it seems, by the better opinion, to be murder in such as 
 administered or gave them. But, as there is one case where it is 
 difficult to prove the child's being born alive, namely, in the case 
 of the murder of bastard children by the unnatural mother, it is 
 enacted by statute 21 Jac. I., ch. 27, that if any woman be de- 
 livered of a child which if born alive should by law be a bastard ; 
 and endeavors privately to conceal its death, by burying the 
 child or the like ; the mother so offending shall suffer death as 
 in the case of murder, unless she can prove by one witness at 
 least that the child was actually born dead. This law, which 
 savors pretty strongly of severity, in making the concealment 
 of the death almost conclusive evidence of the child's being 
 murdered by the mother, is nevertheless to be also met with in 
 the criminal codes of many other nations of Europe ; as the 
 Danes, the Swedes, and the French. But I apprehend it has of 
 late years been usual with us in England, upon trial for this of- 
 fence, to require some sort of presumptive evidence that the child 
 was born alive, before the other constrained presumption (that 
 the child whose death is concealed, was therefore killed by its 
 parent) is admitted to convict the prisoner.^ 
 
 -unskilful or improper treatment aggravated the wound, and contributed to 
 iho death, or that death was immediately caused by a surgical operation, ren- 
 dered necessary by the condition of the wound." (2 Allen, 136; 76 Ala. I ; 
 95 Mo. 97.) But if the wound were not dangerous, and the improper treat- 
 ment was the sole cause of death, the person causing the original injury would 
 not be chargeable with the homicide. (See 39 Mich. 236; 78 Ky. 268.) 
 
 " Infanticide, at common law, is the killing of an infant child, after it is fully 
 born alive. If means be used to procure an abortion, and the foetus be 
 
OF HOMICIDE. 945 
 
 Lastly, the killing must be committed with malice afore- 
 thought, to make it the crime of murder. This is the grand cri- 
 terion which now distinguishes murder from other killing: and 
 this malice prepense, malitia prcecogitata, is not so properly spite 
 or malevolence to the deceased in particular, as any evil design 
 in general : the dictate of a wicked, depraved, and malignanl 
 heart ; un disposition dfaire un male chose ; and it may be either 
 express or implied in law. Express malice is when one, with a 
 sedate deliberate mind and formed design, doth kill another: 
 which formed design is evidenced by external circumstances dis- 
 covering that inward intention; as lying in wait, antecedent 
 menaces, former grudges, and concerted schemes to do him some 
 bodily harm. This takes in the case of deliberate duelling, 
 where both parties meet avowedly with an intent to murder : 
 thinking it their duty as gentlemen, and claiming it as their 
 right, to wanton with their own lives and those of their fellow 
 creatures ; without any warrant or authority from any power 
 either divine or human, but in direct contradiction to the laws 
 both of God and man : and therefore the law has justly fixed the 
 crime and punishment of murder on them, and on their seconds 
 also. Yet it requires such a degree of passive valor to combat 
 the dread of even undeserved contempt, arising from the false 
 notions of honor too generally received in Europe, that the 
 strongest prohibitions and penalties of the law will never be en- 
 destroyed before birth, the act is neither murder nor manslaughter by the 
 common-law, since the person killed must be a " reasonable creature in be- 
 ing," and a child was not considered as " in being," until birth. This defect 
 in the law has been generally remedied, in modern times, by statutes provid- 
 ing for the prevention and punishment of abortion. A child is deemed to be 
 fully born, when every part of it is separated from the person of the mothei ; 
 if its death be caused during the progress of delivery, this is not criminal 
 homicide. It is not, however, necessary that the umbilical cord be severed, 
 or that the full period of gestation shall have been completed. It is only 
 requisite that death occur after actual birth. If the injuries be inflicted pre- 
 viously, and produce a fatal result after delivery is consummated, this will con- 
 stitute infanticide. 
 
 The statute 2i Jac. I, ch. 27, mentioned in the text, has been superseded 
 by the act 24 & 25 Vict., ch. loo, which provides, that, "if any woman shall 
 be delivered of a child, every person who shall, by any secret disposition of 
 the dead body of the said child, whether such child died before, at, or after 
 lt.s birth, endeavor to conceal the birth thereof, shall be guilty of a misde- 
 meanor." Similar stat ites are in force in a number of the United States. 
 
 61 
 
946 OF HOMICIDE. 
 
 tirely effectual to eradicate this unhappy custom ; till a method 
 be found out of compelling the original aggressor to make some 
 other satisfaction to the affronted party, which the world shall 
 esteem equally reputable, as that which is now given at the haz- 
 ard of the life and fortune, as well of the person insulted, as of 
 him who hath given the insult. Also, if even upon a sudden pro- 
 vocation one beats another in a cruel and unusual manner, so 
 that he dies, though he did not intend his death, yet he is 
 guilty of murder by express malice ; that is, by an express evil 
 design, the genuine sense of malitia. As when a park-keeper 
 tied a boy, that was stealing wood, to a horse's tail, and dragged 
 him along the park ; when a master corrected his servant with 
 an iron bar ; and a schoolmaster stamped on his scholar's belly ; 
 so that each of the sufferers died ; these were justly held to be 
 murders, because the correction being excessive, and such as 
 could not proceed but from a bad heart, it was equivalent to a de- 
 liberate act of slaughter. Neither shall he be guilty of a less 
 crime, who kills another in consequence of such a wilful act, as 
 shows him to be an enemy to all mankind in general ; as going 
 deliberately, and with an intent to do mischief, upon a horse 
 used to strike, or coolly discharging a gun among a multitude of 
 people. So if a man resolves to kill the next man he meets, and 
 does kill him, it is murder, although he knew him not ; for this 
 is universal malice. And, if two or more come together to do an 
 unlawful act against the king's peace, of which the probable con- 
 sequence might be bloodshed, as to beat a man, to commit a riot, 
 or to rob a park : and one of them kills a man : it is murder in 
 them all, because of the unlawful act, the malitia prcecogitata, or 
 evil intended beforehand. 
 
 Also in many cases where no malice is expressed, the law 
 will imply it : as where a man wilfully poisons another, in such 
 a deliberate act the law presumes malice, though no particular 
 enmity can be proved. And if a man kills another suddenly,, 
 without any, or without a considerable provocation, the law im- 
 plies malice ; for no person, unless of an abandoned heart, would 
 be guilty of such an act, upon a slight or no apparen": cause. No 
 affront, by words or gestures only, is a sufficient provocation, so 
 as to excuse or extenuate such acts of violence as manifestly en- 
 danger the life of another. But if the person so provoked had 
 unfortunately killed the other, by beating iMm in such a manner 
 
OF HOMICIDE. 947 
 
 ks showed only an intent to chastise and not to kill him. the law 
 so far considers the provocation of contumelious behavior, as to 
 adjudge it only manslaughter, and not murder. In like manner 
 if one kills an officer of justice, either civil or criminal, in the 
 e::ecution of his duty, or any of his assistants endeavoring to 
 conserve the peace, or any private person endeavoring to suppress 
 an affray or apprehend a felon, knowing his authority or the 
 intention with which he interposes, the law will imply malice, 
 and the killer shall be guilty of murder. And if one intends to 
 do another felony, and undesignedly kill a man, this is also 
 murder. Thus if one shoots at A. and misses him, but kills 
 B., this is murder;' because of the previous felonious intent, 
 which the law transfers from one to the other. The same is 
 the case where one lays poison for A. ; and B., against whom the 
 prisbner had no malicious intent, takes it, and it kills him ; this 
 is likewise murder. So also if one gives a woman with child a 
 medicine to procure abortion, and it operates so violently as to 
 kill the woman, this is murder in the person who gave it. It 
 were endless to go through all the cases of homicide, which have 
 been adjudged either expressly, or impliedly malicious : these 
 therefore may suffice as a specimen ; and we may take it for a 
 general rule that all homicide is malicious, and of course amounts 
 to murder, unless vf\iQr& justified by the command or commission 
 of the law ; excused on the account of accident or self-preserva- 
 tion ; or alleviated into manslaughter, by being either the invol- 
 untary consequence of some act, not strictly lawful, or (if volun- 
 tary) occasioned by some sudden and sufficiently violent 
 provocation. And all these circumstances of j ustification, excuse, 
 or alleviation, it is incumbent upon the prisoner to make out, 
 to the satisfaction of the court and jury : the latter of whom are 
 to decide whether the circumstances alleged are proved to have 
 actually existed ; the former, how far they extend to take away or 
 mitigate guilt. For all homicide is presumed to be malicious, 
 until the contrary appeareth upon evidence.' 
 
 ' The subject of homicide may be said to be invariably, in this country, 
 a matter of statutory definition and regulation. The principles and distinc- 
 tions of the common-law have been in diverse ways and degrees changed, 
 modified, extended, or discarded. Very essential alterations, however, have 
 rarely been'made, except in regard to Lie classification of different modes 
 of homicide, and the punishments prescribed therefor ; and it is a generaJ 
 
94» OF HOMICIDE. 
 
 The 2)unishment of murder, and that of manslaughter was 
 formerly one and the same; both having the benefit of clergy; 
 so that none but unlearned persons, who least knew the guilt 
 of it, were put to death for this enormous crime. But now by 
 several statutes, the benefit of clergy is taken away from mur- 
 derers through malice prepense, their abettors, procurers, and 
 counsellors. ° 
 
 By the Roman law, parricide, or the murder of one's parents 
 or children, was punished in a much severer manner than any 
 other kind of homicide. After being scourged, the delinquents 
 were sewed up in a leathern sack, with a live dog, a cock, a viper 
 and an ape, and so cast into the sea. Solon, it is true, in his laws, 
 made none against parricide ; apprehending it impossible that 
 any one should be guilty of so unnatural a barbarity. And the 
 Persians, according to Herodotus, entertained the same notion, 
 when they adjudged all persons who killed their reputed parents 
 to be bastards. And, upon some such reason as this, we must 
 account for the omission of an exemplary punishment for this 
 crime in our English laws ; which treat it no otherwise than as 
 
 rule, that such acts of homicide as would have been deemed innocent and 
 defensible at common law, are so at present, while those which were criminal 
 are still criminal. But it is in reference to murder and manslaughter that 
 the changes by legislation have been most important and diverse. The line 
 of demarcation between these two grades of felonious homicide has been in 
 some States differently drawn than at common law, and, moreover, in a 
 number of the States, murder and manslaughter are respectively distinguished 
 as of different degrees. Thus, murder in the first degree would be the most 
 heinous kind of felonious homicide, and would entail the severest punish- 
 ment, while the second and other degrees would be of an inferior grade. It 
 is evident that this discrimination into degrees has led to the introduction into 
 the law of principles and rules of distinction which were not applied at com- 
 mon-law. It would not be practicable to give any statement of such distinc- 
 tions, since there is so much diversity in the legislation of different States, 
 and the statute-books of each State must be consulted. In some States, it 
 has been made one distinguishing test of murder in the highest degree, that 
 the act of homicide was committed with an actual intent to kill, and the phrase 
 "intent to kill" has a different extent of meaning from the term "malice 
 aforethought" of the common-law. (See Shufflin v. People, 62 N. Y. 229.) 
 
 'The punishment for murder, by the present English law, is the death 
 penalty ; that of manslaughter is penal servitude, or imprisonment for various 
 terms, or pecuniary fine. In the United States, it is the general rule that 
 similar punishments (penal servitude excepted) are inflicted. But some States 
 kave abolished the death penalty. 
 
OF OFFENCES A GAINST INDIVIDUALS. 949 
 
 simple murder, unless the child was also the servant of h.s pa- 
 rent. 
 
 For, though the breach of natural relation is unobserved, 
 yet the breach of civil or ecclesiastical connections, when coupled 
 with murder, denominates it a new offence, no less than a species 
 of txQ3iS0Ti, C3M&di parva froditio, or petit treason : which however 
 is nothing else but an aggravated degree of murder ; although on 
 account of the violation of private allegiance, it is stigmatized as 
 an inferior species of treason. And thus, in the ancient Gothic 
 constitution, we find the breach both of natural and civil rela- 
 tions ranked in the,same class with crimes against the State and 
 the sovereign. 
 
 Petit treason, according to the statute 25 Edw. III., ch. 2, may 
 happen three ways : by a servant killing his master, a wife her 
 husband, or an ecclesiastical person (either secular or regular) his 
 superior, to whom he owes faith and obedience.' But a person 
 indicted of petit treason may be acquitted thereof, and found 
 guilty of manslaughter or murder : and in such case it should 
 seem that two witnesses are not necessary, as in case of petit 
 treason they are. 
 
 CHAPTER XIII. 
 
 [bL. COMM. BOOK IV. CH. XV.] 
 
 Of Offences against the Persons of Individuals. 
 
 Having in the preceding chapter considered the principal 
 crime, or public wrong, that can be committed against a private 
 subject, namely, by destroying his life ; I proceed now to inquire 
 into such other crimes and misdemeanors, as more peculiarly af- 
 fect the security of his person, while living. 
 
 Of these some are felonies, and in their nature capital ; 
 others are simple misdemeanors, and punishable with a lighter 
 animadversion. Of the felonies, the first is that of mayhem. 
 
 ' The crime of petit treason has been abolished in England, and ia 
 unknown in the law of the United States. 
 
9SO OF OFFENCES AGAINST 
 
 I. Mayhem, mayhewium, was in part considered in the pie- 
 ceding book, as a civil injury: but it is also looked upon in a 
 criminal light by the law, being an atrocious breach of the king's 
 peace, and an offence tending to deprive him of the aid and as- 
 sistance of his subjects. For mayhem is properly defined to be, 
 as we may remember, the violently depriving another of the use 
 of such of his members as may render him the less able in fight- 
 ing, either to defend himself, or to annoy his adversary. And 
 therefore the cutting off, or disabling, or weakening a man's hand 
 or finger, or striking out his eye or foretooth, or depriving him 
 of those parts the loss of which in all animals abates their cour- 
 age, are held to be mayhems. But the cutting off his ear, or 
 nose, or the like, are not held to be mayhems at common law ; 
 because they do not weaken but only disfigure him. 
 
 By the ancient law of England he that maimed any man, 
 whereby he lost any part of his body, was sentenced to lose the 
 like part ; membrum pro membro. But this went afterwards out 
 of use : partly because the law of retaliation, as was formerly 
 shown, is at best an inadequate rule of punishment ; and partly 
 because upon a repetition of the offence the punishment could 
 not be repeated. So that, by the common law, as it for a long 
 time stood, mayhem was only punishable with fine and imprison- 
 ment ; unless perhaps the offence of mayhem by castration, which 
 all our old writers held to be felony : '' et sequitur aliquandc 
 poena capitalis, aliquando perpetuum exilium, cum omnium bono- 
 rum ademptione" And this, although the mayhem was committed 
 upon the highest provocation. 
 
 But subsequent statutes have put the crime and punishment 
 of mayhem more out of doubt. The last statute, but by far the 
 most severe and effectual of all, is that of 22 & 23 Car. II., ch. i, 
 called the Coventry act ; being occasioned by an assault on Sir 
 John Coventry in the street, and slitting his nose, in revenge (as 
 was supposed) for some obnoxious words uttered by him in parli- 
 ament. By this statute it is enacted, that if any person shall of 
 malice aforethought, and by lying in wait, unlawfully cut out or 
 disable the tongue, put out an eye, slit the nose, cut off a nose 
 or lip, or cut off. or disable any limb or member of any other per- 
 son, with intent to maim or disfigure him ; such person, his coun- 
 sellors, aiders, and abettors, shall be guilty of felony without bene 
 fit of clergy.* 
 
 1 The statute at present in force in regard to this offense, is the 24 & 25 
 
THE PERSONS OF INDIVIDUALS. 951 
 
 II. The second offence, more immediately affecting the per- 
 sonal security of individuals, relates to the female part of His 
 Majesty's subjects ; being that of their forcible abduction and 
 marriage; which is vulgarly called stealing an heiress. For by 
 statute 3 Hen. VII., ch.«2, it is enacted, that if any person shall 
 for lucre take any woman, being maid, widow, or wife, and having 
 substance either in goods or lands, being heir apparent to her an- 
 cestors, contrary to her will ; and afterwards she be married to 
 such misdoer, or by his consent to another, or defiled ; such per- 
 son, his procurers and abettors, and such as knowingly receive 
 such woman, shall jbe deemed principal felons ; and by statute 30 
 Eliz., ch. 9, the benefit of clergy is taken away from all such 
 felons, who shall be principals, procurers, or accessories before 
 the fact. 
 
 An inferior degree of the same kind of offence, but not 
 attended with force, is punished by the statutes 4 & 5 Ph. & 
 Mar. ch. 8, which enacts that if any person, above the age of 
 fourteen, unlawfully shall convey or take away any woman child 
 unmarried (which is held to extend to bastards as well as 
 to legitimate children), within the age of sixteen years, from the 
 ' possession and against the will of the father, mother, guardians, 
 or governors, he shall be imprisoned two years, or fined at the 
 discretion of the justices ; and if he deflowers such maid or 
 woman child, or without the consent of parents, contracts 
 matrimony with her, he shall be imprisoned five years, or fined at 
 the discretion of the justices, and she shall forfeit all her lands to 
 her next of kin, during the life of her said husband.'' 
 
 III. A third offence, against the female part also of His 
 Majesty's subjects, but attended with greater aggravation than 
 that of forcible marriage, is the crime of rape, raptus mulierum, 
 or the carnal knowledge of a woman forcibly and against her will. 
 
 Vict., ch. 100, which includes many other forms of personal injury than 
 such as would have been deemed distinctively acts of mayhem at common 
 law. In this country, also, statutes have been passed in a number of the 
 States, declaring it mayhem, not only to injure a limb used in fighting, but 
 to cause personal disfigurement in various ways. (See ante, p. 677, note 4.) 
 ^ These early statutes liave been superseded by recent legislation ; but 
 no very material changes have been made in the provisions relating to this 
 offense, except to alter the punishment. It is generally provided, by statute 
 in this country, that the abduction of females for purposes of prostitutionj 
 concubinage, or marriage, shall be a crime, punishable with severe penalties, 
 
9S2 OF OFFENCES AGAINST 
 
 A male infant, under the age of fourteen years, is presumed 
 by law incapable to commit a rape, and therefore it seems cannot 
 be found guilty of it. For though in other felonies malitia 
 supplet (Btatem, as hae in some cases been shown ; yet, as to this 
 particular species of felony, the law supposes an imbecility of 
 body as well as mind.' 
 
 The civil law seems to suppose a prostitute or common 
 harlot incapable of injuries of this kind ; not allowing any 
 punishment for violating the chastity of her, who hath indeed 
 no chastity at all, or at least hath no regard to it. But the law 
 of England does not judge so hardly o&offenders, as to cut off all 
 opportunity of retreat even from common strumpets, and to 
 treat them as never capable of amendment. It therefore holds 
 it to be felony to force even a concubine or harlot ; because the 
 woman may have forsaken that unlawful course of life. 
 
 As to the material facts requisite to be given in evidence 
 and proved upon an indictment of rape, they are of such a 
 nature, that though necessary to be known and settled, for the 
 conviction of the guilty and preservation of the innocent, 
 aiid therefore to be found in such criminal treatises as dis- 
 course of these matters in detail, yet they are highly improper 
 to be publicly discussed, except only in a court of justice.'* I 
 shall therefore merely add upon this head a few remarks from 
 Sir Matthew Hale, with regard to the competency and credibil- 
 ity of witnesses ; which may, salvo pudore, be considered. 
 
 And, first, the party ravished may give evidence upon oath, 
 and is in law a competent witness ; but the credibility of 
 her testimony, and how far forth she is to be believed, must 
 be left to the jury upon the circumstances of fact that concur in 
 that testimony. For instance : if the witness be of good fame ; 
 
 « But it has been held in this country that a boy under fourteen years of 
 age may be convicted of rape, if proved to have arrived at puberty. But 
 there must be clear proof of capacity by affirmative evidence. {People v. 
 Randolph, 2 Parker, 174; Williams v. State, 14 Ohio, 222.) 
 
 * If the woman consent to the criminal connection, whether the consent 
 be voluntary or obtained by fraudulent artifices, there is no rape committed. 
 Thus it has been held that if the ravisher personates her husband, and con. 
 sent is given under that supposition, he is not chargeable with this crime. 
 Some recent decisions and statutes, however, are to the contrary. {Queen v. 
 Barrow, L. R. i C. C. 156; see 15 Cox, C. C. 579; 32 N. Y. 525; 50 Barb. 
 128 & 144; 94 Ind. 96; 22 Tex. App. 650; 48 & 49 Vict. c. 69.) 
 
THE PERSONS OF INDIVIDUALS. 953 
 
 it she presently discovered the offence, and made search for the 
 offender ; if the party accused fled for it ; these and the like are 
 concurring circumstances which give greater prcbability to her 
 evidence. But, on the other side, if she be of evil fame, 
 and stands unsupported by others ; if she concealed the injury 
 for any considerable time after she had opportunity to complain ; 
 if the place, where the fact was alleged to be committed, was 
 where it was possible she might have been heard, and she made 
 no outcry ; these and the like circumstances carry a strong but 
 not conclusive presumption that her testimony is false or feigned. 
 
 Moreover, if tlje rape be charged to be committed on an 
 infant under twelve years of age, she may still be a competent 
 witness, if she hath sense and understanding to know the nature 
 and obligations of an oath ; or even to be sensible of the wicked- 
 ness of telling a deliberate lie. Nay, though she hath not, it is 
 thought by Sir Matthew Hale that she ought to be heard with- 
 out oath, to give the court information ;^and others have held, 
 that what the child told her mother, or other relations, may be 
 given in evidence, since the nature of the case admits frequently 
 of no better proof. But it is now settled (Brazier's case, before 
 the twelve judges P. 19 Geo. III.) that no hearsay evidence can be 
 given of the declaration of a child who hath not capacity to be 
 sworn, nor can such a child be examined in court without oath ; 
 and that there is no determinate age, at which the oath of 
 a child ought either to be admitted or rejected. Yet, where the 
 evidence of children is admitted, it is much to be wished, in order 
 to render their evidence credible, that there should be some 
 concurrent testimony of time, place, and circumstances, in order 
 to make out the fact ; and that the conviction should not be 
 grounded singly on the unsupported accusation of an infant 
 under years of discretion. There may be therefore, in many 
 cases of this nature, witnesses who are competent, that is, who 
 may be admitted to be heard; and yet after being heard, 
 may prove not to be credible, or such as the jury is bound 
 to believe. For one excellence of the trial by jury is, that 
 the jury are triers of the credit of the witnesses, as well as 
 of the truth of the fact. 
 
 " It is true," says this learned judge, " that rape is a most de- 
 testable crime, and therefore ought severely and impartially to be 
 punished with death ; but it must be remembered that it is an 
 
954 OF OFFENCES AGAINST 
 
 accusation easy to be made, hard to be proved, but harder to be 
 defended by the party accused, though innocent." He then re- 
 lates two very extraordinary cases of malicious prosecution for 
 this crime, that had happened within his own observation ; and 
 concludes thus : " I mention these instances, that we may be 
 the more cautious upon trials of offences of this nature, wherein 
 the court and jury may with so much ease be imposed upon, 
 without great care and vigilance ; the heinousness of the offence 
 many times transporting the judge and jury with so much indig- 
 nation that they are overhastily carried on to the conviction of 
 the person accused thereof, by the confident testimony of some- 
 times false and malicious witnesses." 
 
 IV. What has been here observed, especially with regard to 
 the manner of proof, which ought to be more clear in proportion 
 as the crime is the more detestable, may be applied to another 
 offence, of a still deeper malignity ; the infamous crime against 
 nature, committed either with man or beast. A crime which 
 ought to be strictly and impartially proved, and then as strictly 
 and impartially punished. But it is an offence of so dark a na- 
 ture, so easily charged, and the negative so difficult to be proved, 
 that the accusation should be clearly made out : for, if false, it 
 deserves a punishment inferior only to that of the crime it- 
 self. 
 
 I will not act so disagreeable a part, to my readers as well 
 as myself, as to dwell any longer upon a subject, the very men- 
 tion of which is a disgrace to human nature. It will be more 
 eligible to imitate in this respect the delicacy of our English law, 
 which treats it, in its very indictments, as a crime not fit to be 
 named : "peccatum illud horribile, inter christianos non nominan- 
 dum." 
 
 These are all the felonious offences more immediately against 
 the personal security of the subject. The inferior offences of 
 misdemeanors, that fall under this head, are assaults, batteries, 
 wounding, false imprisonme7it,^ and kidnapping. 
 
 v., VI., VII. With regard to the nature of the three first of 
 these offences in general, I have nothing further to add to what 
 has already been observed in the preceding book of these com- 
 mentaries ; when we considered them as private wrongs, or civil 
 injuries, for which a satisfaction or remedy is given to the party 
 ' As to these offences, see ante, pages 674, 675, 686. 
 
THE PERSONS OF INDIVIDUALS. 955 
 
 aggrieved. But, taken in a public light as a breach of the king's 
 peace, an affront to his government, and a damage done to his 
 subjects, they are also indictable and punishable with fines and 
 imprisonment ; or with other ignominious corporal penalties, 
 where they are committed with any very atrocious design As 
 in case of an assault with an intent to murder, or with an intent 
 to commit either of the crimes last spoken of ; for which inten- 
 tional assaults, in the two last cases, indictments are much more 
 usual than for the absolute perpetration of the facts themselves, 
 on account of the difficulty of proof ; or, when both parties are 
 consenting to an unjiatural attempt, it is usual not to charge any 
 assault ; but that one of them laid hands on the other with in- 
 tent to commit, and that the other permitted the same with in- 
 tent to suffer, the commission of the abominable crime before 
 mentioned. 
 
 VIII. The two remaining crimes and offences, against the 
 persons of His Majesty's subjects, are infringements of their nat- 
 ural liberty : concerning the first of which, false imprisonment, 
 its nature and incidents, I must content myself with referring 
 the student to what was observed in the preceding book, when 
 we considered it as a mere civil injury. But besides the private 
 satisfaction given to the individual by action, the law also de- 
 mands public vengeance for the breach of the king's peace, for 
 the loss which the state sustains by the confinement of one of its 
 members, and for the infringement of the good order of society. 
 And indeed there can be no doubt, but that all kinds of crimes 
 of a public nature, all disturbances of the peace, all oppressions, 
 and other misdemeanors whatsoever of a notoriously evil exam- 
 ple, may be indicted at the suit of the king. 
 
 IX. The other remaining offence, that of kidnapping, being 
 the forcible abduction or stealing away of a man, woman, or child, 
 from their own country, and sending them into another, was 
 capital by the Jewish law. " He that stealeth a man, and selleth 
 him, or if he be found in his hand, he shall surely be put to 
 death." So likewise in the civil law, the offence of spiriting away 
 and stealing men and children ; which was called plagium, and 
 the offenders plagiarii, was punished with death. This is un- 
 questionably a very heinous crime, as it robs the king of his sub- 
 jects, banishes a man from his country, and may in its conse- 
 quences be productive of the most cruel and disagreeable hard- 
 
9S6 OF OFFENCES AGAINST 
 
 ships; and therefore the common law of England has nunished 
 it with fine, imprisonment, and pillory.' 
 
 CHAPTER XIV. 
 
 [bL. COMM. BOOK IV. CH. XVI.] 
 
 Of Offences against the Habitations of Individuals, 
 
 The only two offences, that more immediately affect the 
 habitations of individuals or private subjects, are those of arson 
 and burglary. 
 
 I. Arson, ab ardendo, is the malicious and wilful burning the 
 house or out-house of another man. This is an offence of very 
 great malignity and much more pernicious to the public than 
 simple theft : because first, it is an offence against that right of 
 habitation, which is acquired by the law of nature as well as by 
 the laws of society ; next, because of the terror and confusion 
 that necessarily attend it : and, lastly, because in simple theft 
 the thing stolen only changes its master but still remains in esse 
 for the benefit of the public, whereas by burning the very sub- 
 stance is absolutely destroyed. It is also frequently more de- 
 structive than murder itself, of which too it is often the cause : 
 since murder, atrocious as it is, seldom extends beyortd the fel- 
 onious act designed ; whereas fire too frequently involves in the 
 common calamity persons unknown to the incendiary, and not 
 intended to be hurt by him, and friends as well as enemies. For 
 which reason the civil law punishes with death such as malicious- 
 ly set fire to houses in towns, and contiguous to others ; but is 
 more merciful to such as only fire a cottage, or house, standing 
 by itself. 
 
 8 The term " kidnapping " is generally employed in ordinary usage with 
 reference to the abduction of children, but in law it is applicable to all per- 
 sons. This crime is usually defined by statute at the present day, and the 
 sending of the person taken into another country is not usually made an 
 essential element in the offense. Fraudulently enticing, inveigling, or decoy- 
 ing a person away, with intent to imprison, or conceal him, or detain him from 
 home, are commonly declared to be kidnapping, as well as a forcible seizure 
 and detention. There are generally special statutory provisions in regard 
 to the abduction of children. (See 25 N. Y. 373 ; 109 N. Y. 226.) 
 
THE HABITATIONS OF INDIVIDUALS. 957 
 
 Our English law also distinguishes with much accuracy upon 
 this crime. And therefore we will inquire, first, what is such a 
 house as may be the subject of this offence ; next, wherein the 
 offence itself consists ; or v/hat amounts to a burning of such 
 house ; and lastly, how the offence is punished. 
 
 1. Not only the bare dwelling-house, but all out-houses that 
 are parcel thereof, though not contiguous thereto, nor under the 
 same roof, as barns and stables, may be the subject of arson. 
 And this by the common law : which also accounted it felony to 
 burn a single barn in the field, if filled with hay or corn, though 
 not parcel of the dwelling-house. The burning of a stack 
 of corn was anciently likewise accounted arson. And indeed all 
 the niceties and distinctions which we meet with in our books, 
 concerning what shall, or shall not, amount to arson, seem now 
 to be taken away by a variety of statutes ; which have made the 
 punishment of wilful burning equally extensive as the mischief. 
 The offence of arson (strictly so called) may be committed by 
 wilfully setting fire to one's own house, provided one's neigh- 
 bor's house is thereby also burnt ; but if no mischief is done 
 but to one's own, it does not amount to felony, though the fire 
 was kindled with intent to burn another's. For by the common 
 law no intention to commit a felony amounts to the same crime ; 
 though it does, in some cases, by particular statutes. How- 
 ever such wilful firing one's own house, in a town, is a high 
 misdemeanor, and punishable by fine, imprisonment, pillory, 
 and perpetual sureties for the good behavior. And if a landlord 
 or reversioner sets fire to his own house, of which another is 
 in possession under a lease from himself, or from those whose 
 estate he hath, it shall be accounted arson ; for during the lease 
 the house is the property of the tenant.' 
 
 2. As to what shall be said to be a burning, so as to amount 
 
 ' The crime of arson has been much extended in scope by legislation, both 
 in England and in this country, and now includes, in many States, not only the 
 burning of a dwelling-house or outhouses connected therewith, but also of 
 buildings of various kinds, such as stores, warehouses, churches, mills, public 
 buildings, etc. The burning of vessels, of stacks of grain or hay. of valuable 
 crops, of bridges, etc., is also frequently declared to be arson. It is usual, 
 moreover, to provide by statute that burning one's own%ouse shall constitute 
 this offense. In some States, arson is divided into degrees ; thus in New York 
 there are three degrees of this oflfense, particular penalties being prescribed lor 
 each degree. (Penal Code. §§ 486-495.) (See 80 N. Y. 327 ; 54 Vt. 83 ; 
 48 Mich. 31; 131 Mass. 421.) 
 
958 OF OFFENCES AGAINST 
 
 to arson, a bare intent, or attempt to do it, by actually setting 
 fire to a house, unless it absolutely bums, does not fall within the 
 description of incendit et combussit ; which were words necessary, 
 in the days of law-Latin to all indictments of this sort. But the 
 burning and consuming of any part is sufficient ; though the 
 fire be afterwards extinguished. Also it must be a malicious 
 burning ; otherwise it is only a trespass : and therefore no 
 negligence or mischance amounts to it.'' For which reason, 
 though an unqualified person, by shooting with a gun, happens 
 to set fire to the thatch of a house, this Sir Matthew Hale de- 
 termines not to be felony, contrary to the opinion of former 
 writers. 
 
 3. T^x^ punishment of arson was death by our ancient Saxon 
 laws ; and now the punishment of all capital felonies is uniform, 
 namely, by hanging.' 
 
 II. Burglary, or nocturnal housebreaking, burgi latrocinium, 
 which by our ancient law was called hamesecken, as it is in Scot- 
 land to this day, has always been looked upon as a very heinous 
 offence ; not only because of the abundant terror that it naturally 
 carries with it, but also as it is a forcible invasion and disturbance 
 of that right of habitation which every individual might acquire 
 even in a state of nature ; an invasion, which in such a state 
 would be sure to be punished with death, unless the assailant 
 were the stronger. But in civil society, the laws also come into 
 the assistance of the weaker party ; and, besides that they leave 
 him this natural right of killing the aggressor, if he can (as was 
 shown in a former chapter), they also protect and avenge him, in 
 case the might of the assailant is too powerful. And the law of 
 England has so particular and tender a regard to the immunity 
 of a man's house, that it styles it his castle, and will never suffer 
 it to be violated with impunity. For this reason no outward 
 doors can in general be broken open to execute any civil 
 process ; though, in criminal causes, the public safety supersedes 
 the private. 
 
 2 The term " malice " is used in this connection in its legal signification, 
 as denoting that evil and mischievous intention, however general, from which 
 proceeds wrongful acts, done without just cause or excuse. No particular 
 malevolence against tne person injured is necessary. 
 
 ^ Arson is no longer punished capitally in England ; but the usual penal- 
 ties are penal servitude, and imprisonment for various terms. In this coun 
 try, imprisonment in state prison is the common punishment. 
 
THE HABITATIONS OF INDIVIDUALS. 959 
 
 The definition of a burglar, as given us by Sir Edward Coke, 
 is "he that by night breaketh and entereth into a mansion- 
 house, with intent to commit a felony." In this definition there 
 are four things to be considered ; the time, the place, the 
 manner, and the intent. 
 
 1. The time must be by night, and not by day : for in the day 
 time there is no burglary. We have seen, in the case of justifi- 
 able homicide, how much more heinous all laws made an attack 
 by night, rather than by day ; allowing the party attacked by 
 night to kill the assailant with impunity. As to what is 
 reckoned night, and what day, for this purpose : anciently 
 the day was accounted to begin only at sun-rising, and to end 
 immediately upon sun-set ; but the better opinion seems 
 to be, that if there be daylight or crepusculum enough, begun or 
 left, to discern a man's face withal, it is no burglary. But this 
 does not extend to moonlight : for then many midnight bur- 
 glaries would go unpunished : and besides, the malignity of the 
 offence does not so properly arise from its being done in the 
 dark, as at the dead of night ; when all the creation, except 
 beasts of prey, are at rest ; when sleep has disarmed the owner, 
 and rendered his castle defenceless. 
 
 2. As to the place. It must be, according to Sir Edward Coke's 
 definition, in a w«;w2V«-house : and therefore to account for the 
 reason why breaking open a church is burglary, as it undoubtedly 
 is, he quaintly observes that it is domus mansionalis Dei. But it 
 does not seem absolutely necessary that it should in all cases be 
 a mansion-house ; for it may also be committed by breaking the 
 gates or walls of a town in the night ; though that perhaps Sir 
 Edward Coke would have called the mansion-house of the 
 garrison or corporation. Spelman defines burglary to be, 
 " noctuma diruptio alicujus habitaculi, vel ecclesicB, etiam murorum 
 portanimve burgi, adfeloniam perpetrandam." And therefore we 
 may safely conclude, that the requisite of its being dotn^is 
 mansionalis is or\\y \n Ji\\Q burglary of a private house : which is 
 the most frequent, and in which it is indispensably necessary to 
 form its guilt, that it must be in a mansion or dwelling-house. 
 For no distant barn, warehouse, or the like, are under the same 
 privileges, nor looked upon as a man's castle of defence : nor \s 
 a breaking open of houses wherein no man resides, and which 
 therefore for the time being are not mansion-houses, attended 
 
9«o OF OFFENCES AGAINST 
 
 with the same circumstances of midnight terror. A house, how 
 ever, wherein a man sometimes resides, and which the owner hath 
 only left for a short season, animo revertendi, is the object of 
 burglary, though no one be in it the time of the fact committed. 
 And if the barn, stable, or warehouse, be parcel of the mansion 
 house and, within the same common fence, though not under the 
 same roof or contiguous, a burglary may be committed therein ; 
 105 the capital house protects and privileges all its branches and 
 appurtenances, if within the curtilage or homestall. A chamber 
 in a college or an inn of court, where each inhabitant hath a 
 distinct property, is, to all other purposes as well as this, the 
 mansion-house of the owner.' So also is a room or lodging, in 
 any private house, the mansion for the time being of the lodger ; 
 if the owner doth not himself dwell in the house, or if he and the 
 lodger enter by different outward doors. But if the owner him- 
 self lies in the house, and hath but one outward door at which he 
 and his lodgers enter, such lodgers seem only to be inmates, and 
 all their apartments to be parcel of the one dwelling-house of the 
 owner. Thus too the house of a corporation, inhabited in 
 separate apartments by the officers of the body corporate, is 
 the mansion-house of the corporation, and not of the respective 
 officers. But if I hire a shop, parcel of another man's house, and 
 work or trade in it, but never lie there ; it is no dwelling-house, 
 nor can burglary be committed therein ; for by the lease it 
 is severed from the rest of the house, and therefore is not 
 the dwelling-house of him who occupies the other part : neither 
 can I be said to dwell therein, when I never lie there. Neither 
 can burglary be committed in a tent or booth erected in a mar- 
 ket or fair ; though the owner may lodge therein ; for the 
 law regards thus highly nothing but permanent edifices ; a house 
 
 ■' Thus, a tenement-house may be severed, by lease to different tenants, into 
 distinct habitations, and each separate room, or suite of rooms, will be a dwell- 
 ing-house, and to break and enter it will be burglary, as to the tenant therein 
 residing. {Masqn v. People, 26 N. Y. 200; People v. Bush, 3 Parker, 552.) 
 But a guest's chamber in an inn is not his dwelling-house. (86 N. Y. 360.) 
 
 It is now provided by statute in England, that no building, although 
 witliin the same curtilage with the dwelling-house, and occupied therewith, 
 shall be deemed to be part of it for the purpose of burglary, unless there 
 shall be a communication between such building and dwelling-house, either 
 immediate or by means of a covered and enclosed passage, leading from one 
 to the other. (24 & 25 Vict. ch. 96.) Similar statutes have been passed in 
 a number of the American States. 
 
THE HABITATIONS OF INDIVIDUALS. gg, 
 
 or church, the wall or gate of a town ; and though it may be the 
 choice of the owner to lodge in so fragile a tenement, yet 
 his lodging there no more makes it burglary to break it open, 
 that it would be to uncover a tilted wagon in the same circum- 
 stances. 
 
 3. As to the manner of committing burglary : there must be 
 both a breaking and an entry to complete it.^ But they need not 
 be both done at once : for if a hole be broken one night, and the 
 same breakers enter the next night through the same, they are 
 burglars. There must in general be an actual breaking ; not a 
 mere legal clausum /regit (by leaping over invisible ideal bounda- 
 ries, which may constitute a civil trespass), but a substantial and 
 forcible irruption. As at least by breaking, or taking out the 
 glass of, or otherwise opening, a window : picking a lock, or open- 
 ing it with a key ; nay, by hfting up the latch of a door, or un- 
 loosing any other fastening which the owner has provided. But 
 if a person leaves his doors or windows open, it is his own folly 
 and negligence, and if a man enters therein, it is no burglary : 
 yet, if he afterwards unlocks an inner or chamber door, it is so. 
 But to come down a chimney is held a burglarious entry ; for 
 that is as much closed as the nature of things will permit. So 
 also to knpck at the door, and upon opening it to rush in, with a 
 
 ' The breaking is said to be dctual, when effected directly by the exercise 
 of 'physical force; constructive, when an entrance is obtained by threats, 
 fraud, or conspiracy. Lifting the latch of an outer door is a sufficient actual 
 breaking (People v. Bush, 3 Parker, 552), or to tear down a netting fastened 
 to the outside of a window. (Comm. v. Stephenson, 8 Pick. 354.) But if ar 
 opening be left by the negligence or imprudence of the house-owner, it will not 
 be a breaking to enlarge it ; as, to push higher a window sash which has been 
 left slightly raised. (Comm v. Strupney, 105 Mass. 588.) This differs from 
 the case of entrance by a chimney, since a chimney is necessary in every 
 house, and it is not practicable to close it. Though this aperture be left open, 
 the house is as much closed as the nature of things will permit. Forcing 
 open an inner door is a sufficient breaking, although the first entrance was 
 through an open outer door or other aperture ; but not to break open boxes, 
 trunks, or chests. Sufficient instances of constructive breaking are referred to 
 in the text. (See Nicholls v. State, 68 Wis. 416; 85 Pa. St. 54.) 
 
 In order to constitute a sufficient entry, it is necessary that some part of 
 the person should pass within the house, or some instrument or weapon with 
 which it is intended to commit' the felony designed. The insertion of a hand, 
 foot, or finger, will be sufficient. But it is not a burglarious entry to introduce 
 merely the instrument used to eflFect an entrance ; as an auger, or crow-bar. 
 62 
 
962 OF OFFENCES AGAINST INDIVIDUALS. 
 
 felonious intent: or under pretence of taking lodgings, to fall 
 upon the landlord and rob him ; or to procure a constable to gain 
 admittance, in order to search for traitors, and then to bind the 
 constable and rob the house ; all these entries have been adjudged 
 burglarious, though there was no actual breaking ; for the law 
 will not suffer itself to be trifled with by such evasions, especially 
 under the cloak of legal process. And so, if a servant opeps and 
 enters his master's chamber-door with a felonious design ; or if any 
 other person lodging in the same house or in a public inn, opens 
 and enters another's door, with such evil intent, it is burglary. 
 Nay, if the servant conspires with a robber and lets him into the 
 house by night, this is burglary in both ; for the servant is doing 
 an unlawful act, and the opportunity afforded him of doing it 
 with greater ease, rather aggravates than extenuates the guilt. 
 As for the entry, any the least degree of it, with any part of the 
 body, or with an instrument held in the hand, is sufficient ; as to 
 step over the threshold, to put a hand or hook in at a window to 
 draw out goods, or a pistol to demand one's money, are all of 
 them burglarious entries. The entry may be before the break- 
 ing, as well as after : for by statute 12 Ann., ch. 7, if a person 
 enters into the dwelling-house of another, without breaking in, 
 either by day or by night, with intent to commit felony, or being 
 in such a house, shall commit any felony ; and shall in the night 
 break out of the same, this is declared to be burglary ; there hav- 
 ing before been different opinions concerning it:° Lord Bacon 
 holding the affirmative, and Sir Mathew Hale the negative. But 
 it is universally agreed, that there must be both a breaking, either 
 in fact or by implication, and also an entry, in order to complete 
 the burglary. 
 
 4. As to the intent ; it is clear, that such breaking and entry 
 must be with afelonious intent, otherwise it isonly a trespass. And 
 it is the same, whether such intention be actually carried into 
 execution, or only demonstrated by some attempt or overt act, 
 of which the jury is to judge, j^nd therefore such a breach and 
 entry of a house as has been before described, by night, with in- 
 tent to commit a robbery, »a murder, a rape, or any other felony, is 
 
 6 Statutes, similar to tiie 12 Anne, ch. 7, providing that it shall be a suffi- 
 cient breaking, to break out of a house as well as o break in, have been en- 
 acted in a number of the American States. This statute has been substan 
 dally redeclared by the act 24 & 25 Vict., ch. 96. 
 
OFFENCES AGAINST PRTVA TE PROPERTY. 963 
 
 burglary ; whether the thing be actually perpetrated or not. Noi" 
 does it make any difference, whether the offense were felony at 
 common law, or only created so by statute ; since that statute 
 which makes an offense felony, gives it incidentally all the prop- 
 erties of a felony at common law.' 
 
 Thus much for the nature of burglary ; which is a felony at 
 common law, but within the benefit of clergy. 
 
 CHAPTER XV. 
 
 [bL. COMM. — BOOK IV. CH. XVII.] 
 Of Offences against private property. 
 
 The next and last species of offences against private subjects, 
 are such as more immediately affect their property. Of which 
 there are two,- which are attended with a breach of the peace ; lar- 
 ceny, and malicious mischief : and one, that is equally injurious 
 to the rights of property, but attended with no act of violence ; 
 which is the crime of forgery. Of these three in their order. 
 
 I. Larceny, or theft, by contraction for latrociny, latrocinium, 
 is distinguished by the law into two sorts ; the one called simple 
 larceny, or plain theft unaccompanied with any other atrocious cir- 
 cumstance ; and m.ixed or compotmd larceny, which also includes 
 in it the aggravation of a taking from one's house or person. 
 
 And, first, of simple larceny ; which, when it is the stealing 
 of goods above the value of twelve-pence, is called grand lar- 
 ceny ; when of goods to that value, or under, is petit larceny ; 
 offences which are considerably distinguished in their punish- 
 ment, but not otherwise.^ I shall therefore first consider the 
 
 ' These rules of the common-law, in regard to the crime of burglary, have 
 been modified by legislation, both in England and in this country. The break- 
 ing and entering of other buildings than dwelliiig-houses, have been included 
 within this offense ; so to enter by day as well as by night ; and, in a number of 
 the States, burglary has been divided into degrees, to which different penal- 
 ties are attached. The statutes of each State must be consulted upon this 
 subject. (See 69 Wis. 203 ; 45 N. J. L. 340 ; 108 N. Y. 137 ; 37 O. St. 108.) 
 
 * The distinction between grand and petit larceny has been abolished in 
 
964 OFFENCES AGAINST PRIVA TE PROPER TV. 
 
 nature of simple larceny in general ; and then shall observe the 
 different degrees of punishment inflicted on its two several 
 branches. 
 
 Simple larceny then is " the felonious taking, and carrying 
 away, of the personal goods of another." This offence certainly 
 commenced then, whenever it was, that the bounds of property, 
 or laws of meum and tuum, were established. How far such an 
 offence can exist in a state of nature, where all things are held 
 to be common, is a question that may be solved with very little 
 difficulty. The disturbance of any individual, in the occupation 
 of what he has seized to his present use, seems to be the only 
 offence of this kind incident to such a state. But unquestion- 
 ably, in social communities, when property is established, the 
 necessity whereof we have formerly seen, any violation of that 
 property is subject to be punished by the laws of society : though 
 how far that punishment shall extend, is matter of considerable 
 doubt. At present we will examine the nature of theft, or lar- 
 ceny, as laid down in the foregoing definition. 
 
 I. It must be a taking} This implies the consent of the 
 
 England by statute, and in many of the States of this country. But, in some 
 States, it is still retained, though the sum of money upon which the distinc- 
 lioii rests has been changed. Thus, in New York, the distinction is sdll pre- 
 served, though founded on a different basis, and grand larceny is furthermore 
 divided into two degrees. 
 
 ^ In order to constitute larceny, an act of trespass must be involved in 
 the theft. Trespass, as here used, denotes an injury to, or violation of, a per- 
 son's title and possessory interest in chattels, and consists in wrongfully depriv- 
 ing him of possession against his will. {People v. McDonald, 43 N. Y. 6i.) 
 Hence, larceny may be committed by taking goods, either from the genera) 
 owner having absolute title, or from one having a special ownership tem- 
 porarily, as a bailee ; and the goods may be described in the indictment as 
 the property, either of the general, or of the qualified owner. A finder of 
 chattels has a special right of ownership, as against all persons but the true 
 owner ; and the theft of them by a third person would constitute larceny as 
 against him, notwithstanding the defeasible nature of his interest. (See also 
 Wardv. People, 3 Hill, 395; 6 Id. 144.) A general owner may even be 
 chargeable with larceny, if he takes the goods from one having the right of 
 temporary ownership and possession, with intent to charge him with their 
 value. (45 N. Y. L. 448 ; Jo Mich. 249 ; 10 Wend. 165.) But goods in the 
 possession of a servant are deemed to be constructively in the possession of 
 the master, and larceny of them is committed against the master, and not 
 against the servant. 
 
 As larceny involves an act of trespass, it cannot be committed by one 
 having a right of property and of immediate possession in the goods taken. 
 If a bailee wrongfully appropriates to his own use the property entrusted 
 
OFFENCES A GAINST PRIVA TE PROPER TV. 965 
 
 owner to be wanting. Therefore no delivery of the goods from 
 the owner to the offender, upon trust, can ground a larceny. 
 As if A. lends B. a horse, and he rides away with him : or, if 1 
 
 to him, during the continuance of the bailment, he is not guilty of larceny ; 
 the pr&perty was acquired rightfully, without trespass, and the subsequent 
 conversion amounts only to a breach of trust. But if the act be done after 
 the bailment has terminated, it will constitute larceny; and the termination 
 of the bailment may result not only from the expiration of the term for 
 which the trust was to continue, but also from some wrongful act of inter- 
 ference with the goods by the bailee, in violation of his trust If, for exam- 
 ple, a carrier of goods " breaks bulk," as it is termed, by wrongfully opening 
 a box, or bale, or package, his special right of ownership ceases, and he will 
 be guilty of larceny, if he abstracts a part of the contents. (Nichols v. Peo- 
 ple, 17 N. Y. 114; Rex V. Pratley, 5 C. & P. S33-) This doctrine leads to 
 the peculiar result that if a bailee takes the entire package committed to his 
 custody, he commits no crime, but only a breach of trust ; while, if he breaks 
 it open and takes a portion of the contents, he perpetrates larceny. This is 
 a logical conclusion from the rule that an act of trespass must be involved 
 in larceny, but is manifestly unreasonable on practical grounds ; and it is, 
 therefore, frequently provided by statute, that every wrongful conversion of 
 goods by carriers, shall constitute larceny or embezzlement. 
 
 Since goods in the custody of a servant are deemed to be constructively 
 in the master's possession, it will be an act of trespass for him to appropri- 
 ate to himself the goods which he has received from the master, and he will 
 therefore be chargeable with larceny for such an act, done with intent to 
 steal. (See People w.^McDonald, 43 N. Y. 61 ; Comm. v. King, 9 Cush. 284.) 
 But if goods were received by the servant from some third person for de- 
 livery to the master, and he appropriated them to himself before such deliv- 
 ery were made, this would not be an act of larceny ; no trespass would be 
 committed against the master, since he never had possession. But the rule 
 would be otherwise, if the wrongful conversion occurred after delivery ; and 
 the delivery is deemed to be complete when the property has reached its 
 " ultimate destination," as it is termed, by being placed either actually or con- 
 structively within the master's control and possession. This rule leads to 
 subtle distinctions. Thvis, it is held a sufficient delivery if a clerk deposits 
 money, received from a customer, in a money-drawer ; or if a servant re- 
 ceives coal, which his master has purchased, into his master's cart to be car- 
 ri|fi home. {Rex v. Hanunon, 4 Taunton, 304; Rex\. Robinson, 2 East, P. 
 C. 565; People V. McDonald, 43 N. Y. 61.) After .such complete deliveiy, 
 a wrongful conversion with felonious intent constitutes larceny, by the com- 
 mon-law ; before, only a breach of trust. But, in modern times, this defect 
 in the' common-law has been remedied by legislation, declaring such breaches 
 of trust to be a criminal offense, which has received the name of embezzle- 
 ment. (See as to this crime, note 10, post.) 
 
 Finders of lost goods have no right to detain them fi-om the true owner, 
 if he is known ; and if they appropriate them to their own use, when they 
 know to whom the property belongs, or have reasonable means of ascertain- 
 
966 OFFENCES AGAINST PRIVATE PROPERTY. 
 
 send goods by a carrier, and he carries them away ; these are no 
 larcenies. But if the carrier opens a bale or pack of goods, or 
 pierces a vessel of wine, and takes away part thereof, or if he 
 carries it to the place appointed, and afterwards takes away the 
 whole, these are larcenies ; for here the animus furandi is mani- 
 fest ; since in the first case he had otherwise no inducement to 
 open the goods, and in the second the trust was determined, the 
 delivery having taken its effect. But bare non-delivery shall 
 not of course be intended to arise from a felonious design; since 
 that may happen from a variety of other accidents. Neither 
 by the common law was it larceny in any servant to run away 
 with the goods committed to him to keep, but only a breach of civil 
 trust. But by statute 33 Hen. VI., ch. i, the servants of persons 
 deceased, accused of embezzling their masters' goods, may by writ 
 out of chancery (issued by the advice of the chief justices and 
 
 ing by marks upon the goods or otherwise, who is the true owner, they are 
 guilty of larceny. {People v. Anderson, 14 Johns. 294 ; Comm. v. Titus, 116 
 Mass. 42 ; Ransom v. State, 22 Ct. 153.) But when there is no reasonable 
 means of discovering the owner, the finder may appropriate the propeity at 
 once, without committing larceny. (Queen v. Glyde, L. R. i C. C. 139.) 
 And in any case of finding, the felonious intent must exist at the time of the 
 taking, in order that larceny may be committed ; it is not sufficient if the in- 
 tent is entertained and effectuated afterwards. {Wilson v. People, 39 N. Y. 
 459 ; Hill V. State, 57 Wis. 377 ; Queen v. Flowers, 16 Q. B. D. 643.) 
 
 It is a fundamental rule, that larceny must be committed against the will 
 of the owner of the property. If he voluntarily consent to the taking, the 
 act is justified by his license. But if the consent be obtained by fraud or 
 artifice, the taking will, in some cases, constitute larceny. Thus, if the owner 
 be induced, by trick or artifice, to part with the goods, but does so with the 
 intent merely to part with the custody and possession of them for a limited 
 period, and not with his title and right of property, the person who fraudu- 
 lently obtains possession and appropriates, the property to his own use, is 
 guilty of larceny. But if the owner intend to part with his right of property 
 in the goods, the offense is that of obtaining goods by false pretences, and 
 not larceny. Thus, if one hires or borrows a chattel, with intent to steal, the 
 taking is larceny ; so if one, fraudulently and with intent to steal, obta»is 
 property with the ostensible purpose, and upon the understanding that he 
 will convey and deliver it to a particular person. {Smith v. People, 53 N. Y. 
 Ill ; Hildebrand v. People, 56 N. Y. 394; Queen v. McKale, L. R. i C. C. 
 125 ; see 20 Q. B. D. 182 ; 5 Gray, 83.) But if a sale of goods were effected 
 through fraudulent representations, and the goods were delivered to the pur- 
 chaser, it would be a case of false pretences and not of larceny, since the ven- 
 dor intended to part with the property. (See People v. Johnson, 1 2 Johns. 292 ; 
 Thome v. Turck, 94 N. Y. 90.) In New York, however, these distinctions 
 are now abolished, and the obtaining of goods by false pretences, is declared 
 larceny. (Penal Code, § 528 ; and see People v. Richmond, 57 Mich. 403.) 
 
OFFENCES AGAINST PRIVATE PROPERTY. 
 
 9b7 
 
 chief baron, or any two of them), and proclamation made there- 
 upon, be summoned to appear personally in the court of king's 
 bench, to answer their masters' executors in any civil suit for such 
 goods ; and shall, on default of appearance, be attainted of felony. 
 And by statute 21 Hen. VI 1 1., ch. 7, if any servant embezzles 
 his master's goods to the value of forty shillings, it is made 
 felony ; except in apprentices, and servants under eighteen years 
 old.* But if he had not the possession, but only the care and 
 oversight of the goods, as the butler of the plate, the shepherd 
 of the sheep, and the like, the embezzling of them is felony at 
 common law. So^f a guest robs his inn or tavern of a piece of 
 plate, it is larceny : for he hath not the possession delivered to 
 him, but merely the use, and so it is declared to be by statute 
 3 & 4 Wm. & M., ch. 9, if a lodger runs away with the goods from 
 his ready furnished lodgings. Under some circumstances also 
 a man may be guilty of felony in taking his own goods : as if he 
 steals them from a pawnbroker, or any one to whom he hath 
 delivered and entrusted them, with intent to charge such bailee 
 with the value ; or if he robs his own messenger on the road, 
 with an intent to charge the hundred with the loss according to 
 the statute of Winchester. 
 
 2. There must not only be a taking, but a carrying away ;* 
 cepit et asportavit was the old law-Latin. A bare removal from 
 the place in which he found the goods, though the thief does not 
 
 ' These statutes have been superseded by later enactments. See, as to 
 the present law of embezzlement, note 10, post. 
 
 * It is a sufficient asportation, if every part of the thing stolen be removed 
 from the place which that part occupied, even though the entire article is 
 not wholly removed from its receptacle or its general location ; as, for in- 
 stance, to lift a bag partly out of the boot of a coach, to draw a sword 
 partly from its scabbard, to remove goods from one part of a wagon to an- 
 other, to lift a purse a few inches from the bottom of a man's pocket. Though 
 the -intent to steal be no further accomplished, the asportation is complete. 
 (Rexv. IValsh, i Moody, 14; Harrison v. People, 50 N. Y. 518; Comm. v. 
 Luckis, 99 Mass. 431.) But the chattel must be entirely in the thief's 
 possession, though but for a moment. If it be confined by any fastening, — as 
 by a cord or a chain, — there will be no complete asportation, though it be re- 
 moved as far as the fastening will permit ; in such cases, the owner is net 
 wholly deprived of his possession. (l Hale, P. C. 508.) But since the 
 briefest interval of complete possession is sufficient, immediate restitution 
 of the property will not purge the guilt of the ofifender. (i Leach, C. L 
 266.) 
 
968 OFFENCES AGAINST PRIVATE PROPERTY. 
 
 quite make off with them, is a sufficient asportation, or carrying 
 away. As if a man be leading another's horse out of a close, 
 and be apprehended in the fact ; or if a guest, stealing goods out 
 of an inn, has removed them from his chamber down stairs : 
 these have been adjudged sufficient carryings away, to constitute 
 a larceny. Or if a thief, intending to steal platC) takes it out of 
 a chest in which it was, and lays it down upon the floor, but is 
 surprised before he can make his escape with it ; this is lar- 
 ceny. 
 
 3. I'his taking, and carrying away, must also be felonious ; 
 that is, done aninio furandi : or, as the civil law expresses it, 
 lucri causa. This requisite, besides excusing those who labor 
 under incapacities of mind or will (of whom we spoke sufficiently 
 at the entrance of this book), indemnifies also mere trespassers, 
 and other petty offenders. As if a servant takes his master's 
 horse without his knowledge, and brings him home again : if a 
 neighbor takes another's plough that is left in the field, and uses 
 it upon his own land, and then returns it : if under color of arrear 
 of rent, where none is due, I distrain another's cattle, or seize 
 them : all these are misdemeanors and trespasses, but no felonies. 
 The ordinary discovery of a felonious intent is where the party 
 doth it clandestinely ; or, being charged with the fact, denies it. 
 But this is by no means the only criterion of criminality : for in 
 cases that may amount to larceny, the variety of circumstances 
 is so great, and the complications thereof so mingled, that it is 
 impossible to recount all those, which may evidence a felonious 
 intent, or animum fiirandi : wherefore they must be left to the 
 due and attentive consideration of the court and jury." 
 
 4. This felonious taking and carrying away must be of tkt 
 
 s If property be taken under a claim of title, though the claim be un- 
 founded, or if it be taken by mistake, or with intent merely to use and then 
 return it, no larceny is committed, because the element of felonious intent, 
 the animus furandi is lacking. (Merry v. Green, 7 M. & W. 623 ; McCourl v 
 People, 64 N. Y. 583 ) It is also an important rule, that the intent to steal musi 
 exist at the time of the trespass or wrongful taking, and not subsequently. 
 Thus, if one should take another's property, with the intent to retain it for 
 the owner and deliver it to him, and should afterwards misappropriate it 
 undet the influence of a subsequently formed intent to steal, the act would 
 not be larceny. (Wilson v. People, 39 N. Y. 459 ; People v. Anderson, 14 
 Johns. 294,) The question as to the nature of the intent is to be (leterminetl 
 by the jury, from all the circumstances of the case. 
 
OFFENCES A GAINST FRIVA TE PROPER FY. 969 
 
 personal goods of another: for if they are things real, or savor 
 of the realty, larceny at the common law cannot be committed 
 of them. Lands, tenements, and hereditaments (either cor- 
 poreal or incorporeal) cannot in their nature be taken and 
 carried away. And of things likewise that adhere to the free- 
 hold, as corn, grass, trees, and the like, or lead upon a house, no 
 larceny could be committed by the rules of the common law : 
 but the severance of them was, and in many things is still, 
 merely a trespass ; which depended on a subtilty in the legal 
 notions of our ancestors. These things were parcel of the real 
 estate ; and therefore, while they continued so, could not by any 
 .possibility be the subject of theft, being absolutely fixed and 
 immovable. And if they were severed by violence, so as to be 
 changed into movables ; and at the same time, by one and the 
 same continued act, carried off by the person who severed them ; 
 they could never be said to be taken from the proprietor, in this 
 their newly acquired state of mobility (which is essential to the 
 nature of larceny), being never, as such, in the actual or con- 
 structive possession of any one, but of him who committed the 
 trespass. He could not in strictness be said to have taken what 
 at that time were the personal goods of another, since the very 
 act of taking was what turned them into personal goods. But 
 if the thief severs them at one time, whereby the trespass is 
 completed, and they are converted into personal chattels, in the 
 constructive possession of him on whose soil they are left or 
 laid ; and comes again at another time, when they are so turned 
 into personalty, and takes them away ; it is larceny : and so it is, 
 if the owner, or any one else has severed them. Upon nearly 
 the same principle, the stealing of writings relating to real 
 estate is no felony ; but a trespass : because they concern the 
 land or (according to our technical language) savor of the realty, 
 and are considered as part of it by the law : so that they descend 
 to the heir together with the land which they concern. 
 
 Bonds, bills, and notes, which concern mere choses in action 
 were also at the common law held not to be such goods whereo' 
 larceny might be committed ; being of no intrinsic value ; and 
 not importing any property in possession of the person from 
 whom they are taken." 
 
 ' These rules of the common-law in regard to the kinds of property tha» 
 ■nay be the subject of larceny, have been to a considerable extent changed b; 
 
970 OFFENCES AGAINST PRIVA TE PRC PERTY. 
 
 Larceny also cannot be committed of such animals, in which 
 there is no property either absolute or qualified ; as of beasts 
 that are fens naturce, and unreclaimed, such as deer, hares, and 
 conies, in a forest, chase, or warren ; fish, in an open river tr 
 pond t or wild fowls at their natural liberty. But if they are re 
 claimed or confined, and may serve for food, it is otherwise even 
 at common law : for of deer so inclosed in a park that they may 
 be taken at pleasure, fish in a trunk, and pheasants or partridges 
 in a mew, larceny may be committed. It is also said that, if 
 swans be lawfully marked, it is felony to steal them, though at 
 large in a public river ; and that it is likewise felony to steal 
 them, though unmarked, if in any private river or pond ; other- 
 wise it is only a trespass. . But of all valuable domestic animals, 
 as horses and other beasts of draught, and of all animals domita 
 naturce, which serve for food, as neat or other cattle, swine, poul- 
 try, and the like, and of their fruit or produce, taken from them 
 while living, as milk or wool, larceny may be committed ; and 
 also of the flesh of such as are either domitce or ferce naturce^ 
 when killed. As to those animals, which do not serve for food, 
 and which therefore the law holds to have no intrinsic value, as 
 dogs of all sorts, and other creatures kept for whim and pleasure, 
 though a man may have a base property therein, and maintain a 
 civil action for the loss of them, yet they are not of such esti- 
 mation, as that the crime of stealing them amounts to larceny.' 
 
 Notwithstanding, however, that no larceny can be committed, 
 unless there be some property in the thing taken, and an owner ; 
 yet, if the owner be unknown, provided there be a property, it is 
 larceny to steal it ; and an indictment will lie, for the goods of a 
 person unknown. In like manner as among the Romans, the 
 
 legislation, both in England and in this country. Thus, it is frequently pro- 
 vided that chases in action, deeds, and a large variety of articles which savor 
 of the realty, but are readily detached from the land with which they are 
 connected, — such as trees, shrubs, fruit, crops, ore, etc., — may be the subjects 
 of larceny. But, so far as such statutory changes have not been made, the 
 principles of the common law are still in force. 
 
 ' Statutes have been passed in England for the prevention and punishment 
 of dog-stealing ; also to prevent the unlawful taking of fish within the grounds 
 of another, or the killing of game, etc. Similar statutes have been enacted in 
 some of the States of this country. It has been held in New Yoi'k that larceny 
 may be committed by stealing a dog, by reason of the statute making all personal 
 property the subject of this offense. {People v. Campbell, 4 Parker, 386; 
 Mullaly v. People, 86 N. Y. 365 ; see 79 Ind. 9 ; 84 Ky. 681.) 
 
OFFENCES AGAINST PRIVA TE PROPER TY. 971 
 
 lex Hostilia defurtis provided that a prosecution for theft might 
 be carried on without the intervention of the owner. This is 
 the case of stealing a shroud out of a grave ; which is the prop- 
 erty of those, whoever they were, that buried the deceased : but 
 stealing the corpse itself, which has no owner, (though a matter 
 of great mdecency), is no felony, unless some of the grave-clothes 
 be stolen with it.° 
 
 Having thus considered the general nature of simple larceny, 
 I come next to treat of its punishment. 
 
 Our ancient Saxon laws nominally punished theft with death, 
 if above the value of twelvepence ; but the criminal was permitted 
 to redeem his life by a pecuniary ransom ; as, among their an- 
 cestors the Germans, by a stated number of cattle. But in the 
 ninth year of Henry the First, this power of redemption was taken 
 away, and all persons guilty of larceny above the value of twelve- 
 pence were directed to be hanged ; which law continues in force 
 to this day.* The inferior species of theft, or petit larceny, is 
 only punished by imprisonment or whipping at common law. 
 And thus much for the offence of simple larceny.'" 
 
 ' There are statutes in most of the States of this country, malting it highly 
 penal to remove dead bodies from graves, or to open graves to remove any 
 of the vestments of the corpse. (See ante, p. 537, note 4.) 
 
 ' Capital punishment for larceny was abolished in England, in the reign 
 of George IV. The usual penalties now are penal servitude, and imprison- 
 ment for various terms of years. 
 
 1" Embezzlement. — At common-law it was held not to be larceny, but 
 on.y a breach of trust, for a servant or clerk to wrongfully misappropriate 
 personal property, which he had received from a third person for delivery to 
 his employer, before such delivery had been made. The reason was, that 
 larceny involved an act of trespass, and it was no trespass against the mas- 
 ter to take goods which had never come into his possession. To remedy 
 this deficiency in the law, a statute was passed in England, in the reign of 
 George III. (1799), declaring such acts in breach of trust, criminal, and giv- 
 ing to thisofFense the name of embezzlement. This statute was substan- 
 tially redeclaredby the act 8 Geo. IV., ch. 29, and recently by the act 24 & 25 
 Vict., ch. 96, § 68, which is now in force. The provisions of the act 8 Geo. 
 IV., upon which has chiefly been based the American legislation upon this 
 subject, were as follows : " If any clerk, or servant, or any person employed 
 for the purpose, or in the capacity of a clerk or servant, shall, by virtue of 
 »nch employment, receive or take into his possession, any chattels, money or 
 valuable security, for, in the name, or on account of his master, and shall 
 fraudulently embezzle the same, or any 'part thereof, every such offender 
 shall be deemed to haye feloniously stolen the same from his master, 
 a though such chattels, money or security, was not received into the possession 
 
972 
 
 OFFENCES AGAINST PRIVATE PROt ERTY. 
 
 Mixed or comfound l^xccny is such as has all the propertiei 
 of the former, but is accompanied with eithei one or both ef the 
 aggravations of a taking from one's house or person. First, 
 
 of such master, otherwise than by the actual possession of his clerk, ser- 
 vant, or other person so employed." 
 
 In order to sustain a charge of embezzlement under this and similar 
 statutes, it is necessary to prove, (i) That the person accused was a clerk or 
 tervant, or a person employed in such a capacity. (2I That he received the 
 property '■^ by virtue of his employment." (3J That the property, at the 
 time of conversion, was not in the actual or constructive possession of the 
 master. (4) That he converted or appropriated the property to his own use, 
 without the consent, and against the will of the master, with intent to stealer 
 embezzle. 
 
 (i) In order that a person may be a " clerk " or " servant," within the 
 meaning of the statute, it is held that he should be under the immediate and 
 uniform control and direction of his employer, within his particular depart- 
 ment of service. (Regina v. Ahgus, L. R., 2 C. C. 34.) But, if a person be 
 employed to render a service, in which he is allowed a large measure of dis- 
 cretion as to the employment of his time, and the performance of the duties 
 he undertakes, as, for instance, to solicit orders from customers, or to act as 
 insurance agent, and secure applications for insurance, etc., — he is not within 
 the terms of the statute, and not chargeable with embezzlement. {Regina 
 V. Bowers, L. R. i C. C. 41.) But, in some of the American statutes, the 
 term " agent " is used, and persons so employed would be included, though 
 excluded from the English Statute. (See Comin. v. Foster, 107 Mass. 221 ; 
 Comm. V. Tuckerman, 10 Gray, 173.) But even this term would not include 
 a mechanic or manufacturer, to whom goods were sent for repairs, or pur- 
 poses of manufacture. (Cotmn. v. Young, 9 Gray, 5.) 
 
 (2) A servant will not be guilty of embezzlement, if he appropriates prop- 
 erty received without the scope of his employment. {Rex v. Hawiin, 7 C. 
 & P. 281 ; Rex V. Snowley, 4 C. & P., 390; Regina v. Wilson, 9 C. & P, 
 27.) In the present English statute, the phrase " by virtue of his employ- 
 ment " has been omitted, and it is only necessary that the property should be 
 received by the servant. " for, in the name of, or on account of the master.' 
 (Queen v. Cullum, L. R. 2 C. C, 28.) But, in the American statutes, this 
 phrase is generally retained. 
 
 (3) If the property were actually or constructively in the possession 
 of the master at the time of the conversion, the offense would be larceny, 
 and not embezzlement. {Rex v. Murray, 5 C. & P. 143. note ; Comm. 
 V. O'MalUy, 97 Mass. 584; Comm. v. Barry, 116 Mass. I.) But, under the 
 particular phraseology of some American statutes, there does not appear to be 
 a precise and clear line of distinction drawn between larceny and embezzle- 
 ment, and certain classes of cases are said to come within the statute which 
 would also be larceny at common-law. {People v. Dalton, 15 Wend. 583 ; 
 People v. Hennessey, 15 Wend. 147; no 111. 627.) 
 
 The property converted must, under the English statute, belong to the 
 master, and be received by the servant for the master. If, therefore, a ser- 
 
OFFENCES A GA INS T PRI FA TE PR OPER TY. 973 
 
 therefore, of larceny from the house, and then of larceny from 
 \}a^person. 
 
 I . Larceny from the house, though it seems (from the consid- 
 erations mentioned in the preceding chapter) to have a higher 
 degree of guilt than simple larceny, yet it is not at all dis- 
 tinguished from the other at common law ; unless where it is 
 accompanied with the circumstance oi breaking the house by 
 night ; and then we have seen that is falls under another de- 
 scription, viz., that of burglary. But now by several acts of par- 
 liament (the history of which is very ingeniously deduced by a 
 learned modern wrjter, who hath shown them to have gradually 
 arisen from our improvements in trade and opulence), the benefit 
 
 vant should use his master's carriage in driving persons, to earn money for 
 himself, and should appropriate the proceeds, it would not be embezzlement. 
 [Queen v. Cullum, L. R. 2 C. C. 28.) But, under some American statutes, 
 now or heretofore in force, it has been held sufficient that the property be that 
 of some other person than the servant ; and it may belong to a third person, as 
 well as to the master. If, therefore, a third person'.s chattels be received by 
 the servant by virtue of his employment, it will be embezzlement under such 
 statutes to wrongfully appropriate them. (^People v. Hennessey, 15 Wend. 
 147 ; People v. Dalton, 15 Wend. 581 ; see 2 Met. 343 ; 1 10 111. 627.) 
 
 But both in England and in this country, if the nature of the occupation is 
 such that the person employed is entitled to consider the property received 
 as his own, while he merely becomes debtor for an equivalent sum to the 
 employer, it is not embezzlement to appropriate it ; as, for instance, if an 
 auctioneer sells goods for the owner, and appropriates the proceeds to his 
 own use. The relation is really that of debtor and creditor, and one cannot 
 be guilty of embezzlement, merely by making use of funds which he may 
 regard as his own. {Regina v. Chapman, i C. & M., i ig ; Comm. v. Stearns, 
 2 Met. 343; Comm. v. Foster, 107 Mass. 221 ; People v. Howe, 2 T. & C. 
 
 383.) 
 
 (4) The property must have been taken with intent to steal, as in larceny. 
 If a person, reasonably and in good faith, believes that he is entitled to the 
 property entrusted to him, and that the person to whom it was sent was not 
 fairly entitled to it, his retaining it will not amount to embezzlement, even 
 though he should in reality be entirely mistaken in his claim. But if he 
 knew it to be the other person's property, the rule would be different. 
 (Comm. V. Coiicannon, 5 Allen, 502 ; People v. Galland, 55 Mich. 628.) 
 
 There are also in England and in various States of this country statutes 
 for the punishment of embezzlement by factors, brokers, public officers, 
 trustees of charitable societies, etc. Information must be sought by re- 
 ferring to the statutes themselves. The term "embezzlement " is also some- 
 times applied to the wrongful conversion of goods by carriers without 
 " breaking bulk ; " but this has been referred to in a previous note. (See note 
 2, ante:) By a late statute in New York larceny has been made broad enough 
 to cover embezzlement. (Penal Code, § 528.) 
 
974 OFFENCES AGAINST PRIVATE PROPERTY. 
 
 of clergy is taken from larcenies committed in a house in alniosl 
 every instance. 
 
 2. Larceny from the person is either by privately stealing ; oi 
 by open and violent assault, which is usually called robbery. 
 
 The offence of privately steaUng from a man's person, as by 
 picking his pocket or the like, privily without his knowledge, 
 was debarred of the benefit of clergy, so early as by the statute 
 8 Eliz., ch. 4. But then it must be such a larceny as stands in 
 need of the benefit of clergy, viz., of above the value of twelve- 
 pence; or else the offender shall not have judgment of death. 
 For the statute creates no new offence ; but only prevents the 
 prisoner from praying the benefit of clergy, and leaves him to 
 the regular judgment of the ancient law. This severity (for a 
 most severe law it certainly is) seems to be owing to the ease 
 with which such offences are committed, the difficulty of guard- 
 ing against them, and the boldness with which they were prac- 
 tised (even in the Queen's Court and presence) at the time when 
 this statute was made : besides that this is an infringement of 
 property, in the manual occupation or corporeal possession of 
 the owner, which was an offence even in a state of nature. And 
 therefore the saccularii, or cutpurses, were more severely pun- 
 i.shed than common thieves by the Roman and Athenian laws." 
 
 Open and violent larceny from the person, or robbery, the ra- 
 pina of the civilians, is the felonious and forcible taking, from the 
 person of another, of goods or money to any value, by violence 
 or putting him in fear.^" i. There must be a taking, otherwise 
 
 " The various statutes referred to in the text, in reference to compound 
 larceny, have been superseded by the provisions of the act 24 & 25 Vict., ch. 
 96. Stealing from a dwelling house or vessel, or privately from the person, 
 are aggravated forms of larceny, punishable with severer penalties than or- 
 dinary larcenies. Similar statutes have been generally enacted in the United 
 States. Thus, in New York, if larceny be committed in a house or vessel 
 by night of property worth $25 or more, the offense is grand larceny in the first 
 degreu, to which particularly severe penalties are attached ; and stealing from 
 the person is grand larceny, though the property taken be of less value than $25. 
 In ordinary cases, this would only be petit larceny. (Penal Code, §§ 530-531.) 
 
 '2 It is essential to the offense of robbery, that there should be a caption 
 and asportation of the goods ; and the same rules prevail upon this point as 
 in the crime of larceny. (See fl«/^, note 2.) Theproperty must beentiielj in 
 the robber's possession though but for an instant, be wholly detached from all 
 fastenings, and every part of it must have been remored from the position 
 which that paH occupied. Thus, where an ear-ring was torn from a lady's 
 
, OFFENCES AGAINST PRIVATE PROPERTY. 975 
 
 it IS no robbery. If the thief, having once taken a purse returns 
 it, still it is a robbery ; and so it is whether the taking be strictly 
 from the person of another, or in his presence only ; as, where a 
 
 ear, but was immediately dropped into her hair, where it was afterwards 
 found, there was held to be a sufficient asportation. (Lapier's Case, i Leach, 
 (,'. L. 360.) Immediate restitution of the property to the owner will not re- 
 lieve ihe wrongdoer from the guilt of robbery. 
 
 The taking must htfrom the owner's ■person, or in his presence. Thus, 
 it will be sufficient if the robber talces up a cloak, or purse, or other article, 
 which the owner has dropped, while the owner is standing by. But, if the 
 owner has left the place, the act does not constitute robbery. (2 Strange, 
 1015; see 72 la. 432.) It is not necessary that the person from whom the 
 goods are taken, should be the absolute owner of them. Any one who has 
 the property in his possession, is deemed to have the rightful title as against 
 the robber. If goods be stolen from a child, while the father is absent, they 
 may be described in the indictment as the property of the child. {^Brooks 
 V. People, 49 N. Y. 436.) 
 
 The taking must be by force, or putting in fear. If actual force be used, 
 it must be applied directly against the person of the one who is robbed, or 
 used in overcoming resistance caused by the fastenings of the article stolen. 
 It Is not sufficient to take the property from him stealthily, as by furtively 
 picking his pocket, or to snatch it from him suddenly, without sensible vio- 
 lence to his person, as by snatching a cane quickly out of a person's hand, 
 or a hat from his head. (5 Parker, 299; 12 Mo. App. 374; 69 Ala. 249.) 
 But it has been held robbery to snatch a diamond-pin from a lady's hair, with 
 which it was so much intertwisted that part of the hair was torn out. {Moore^s 
 Case, I Leach, 335.) And the same would be true if sensible violence were 
 necessary in any case to overcome, or break through fastenings. It is enough, 
 moreover, that the force used be employed to divert the owner's attention, 
 while he is deprived of his property. {Mahoney v. People, 5 T. & C. 329 ; 
 3 Hun, 202.) 
 
 When the robbery is effected by "putting in fear," the fear excited may 
 be either of injury to the person, or to the property, or to the reputation. 
 There must be such circumstances of terror, such modes of threatening vio- 
 lence, as, in common experience, would be likely to induce a man to part 
 with hi.i property. Menacing words are not necessary, for threatening acts 
 or gestures may be sufficient to induce feelings of fear or terror ; as, if one 
 should beg alms with a drawn sword. 
 
 The most common cases of robbery effected by causing fear of injury to 
 troperty, have been those where the outrages of a mob have been threat- 
 ened, if money or property were not delivered up. Such cases are, how- 
 ever, rare in modern times. 
 
 The only form of defamatory charge in injury to the reputation, by which 
 robbery can be effected, is that of committing unnatural practices, — the crime 
 against nature. (People v. McDaniels, i Parker, 198.) 
 
 These common-law rules and principles have been, to some extent, modi- 
 fied by the legislation of different States, but have not been changed in es- 
 sential respects. 
 
976 OFFENCES AGAINST PRIVATE PROPERTY 
 
 robber by menaces and violence puts a man in fear, and drives 
 away his sheep or his cattle before his face. But if the taking 
 be not either directly from his person, or in his presence, it is 
 no robbery. 2. It is immaterial of what value the thing taken 
 is : a penny as well as a pound, thus forcibly extorted, makes a 
 robbery. 3. Lastly, the taking must be by force, or a previous 
 putting in fear ; which makes the violation of the person more 
 atrocious than privately stealing. For according to the maxim 
 of the civil law, " qui vi rapuit, fur improbior esse videtur." 
 This previous violence, or putting in fear, is the criterion that 
 distinguishes robbery from other larcenies. For if one privately 
 steals sixpence from the person of another, and afterwards keeps 
 it by putting him in fear, this is no robbery, for the fear is sub- 
 sequent : neither is it capital, as privately stealing, being under 
 the value of tweivepence. Not that it is indeed necessary, 
 though usual, to lay in the indictment that the robbery was com- 
 mitted by /?///««^ 2«_/kar/ it is sufficient, if laid to be done by 
 violence. And when it is laid to be done by putting in fear, this 
 does not imply any great degree of terror or affright in the party 
 robbed : it is enoi^gh that so much force, or threatening by word 
 or gesture, be used, as might create an apprehension of danger, 
 or induce a man to part with his property without or against his 
 consent. Thus, if a man be knocked down without previous 
 warning, and stripped of his property while senseless, though 
 strictly he cannot be said to be put in fear, yet this is undoubt- 
 edly a robbery. Or, if a person with a sword drawn begs an 
 alms, and I give it him through mistrust and apprehension of 
 violence, this is a felonious robbery. So if, under a pretence of 
 sale, a man forcibly extorts money from another, neither shall 
 this subterfuge avail him. But it is doubted, whether the forc- 
 ing a higgler, or other chapman, to sell his wares, and giving hira 
 the full value of them, amounts to so heinous a crime as robbery. 
 II. Malicious mischief, or damage, is the next species of in 
 jury to private property, which the law considers as a public 
 crime. This is such as is done, not miimo furandi, or with an 
 intent of gaining by another's loss; which is some, though a 
 weak, excuse ; but either out of a spirit of wanton cruelty, or 
 black and diabolical revenge. In which it bears a near relation 
 to the crime of arson ; for as that affects the habitation, so this 
 does the other property, of individuals. And, therefore, any 
 
OFFENCES AGAINST PRIVATE PROPERTY. 977 
 
 damage arising from this mischievous disposition, though only a 
 trespass at common law, is now by a multitude of statutes made 
 penal in the highest degree.^" 
 
 III. Forgery, or the crimen falsi, is an offence, which was 
 punished by the civil law with deportation or banishment, and 
 sometimes with death. It may with us be defined, at common 
 law, to be, " the fraudulent making or alteration of a writing to the 
 prejudice of another man's right ; " for which the offender may 
 suffer fine, imprisonment, and pillory." And also by a variety 
 
 " Comprehensive statutes have been enacted in England, and in the va- 
 rious States of the Union, declaring a large variety of acts of malicious mis- 
 chief to be criminal offenses, and prescribing penalties for their com- 
 mission. Among the most common malicious injuries that are thus 
 prohibited are the following: Killing, wounding or maiming domestic 
 animals; destroying, or injuring trees, crops, shrubs, fruit, timber, etc.; 
 injuring or defacing any monument, or work of art, building or other 
 structure ; injuring or destroying ships or vessels, removing buoys ; placing 
 obstructions upon railroads ; carrying away valuable soil from a person's 
 premises, etc. ; and, generally, it may be said that nearly every form of ma- 
 licious injury to property, whether real or personal, is made penal by statute. 
 Most ofienses of this kind are declared to be misdemeanors, as distinguished 
 from felonies. 
 
 " Forgery, by the common law, is the wrongful making or alteration of a 
 writing, with intent to deceive and defraud by its fictitious appearance of genu- 
 ineness. The essence of the offense lies in its tendency to effect a fraud by 
 giving to an instrument an apparent legal efficacy, which it would not other- 
 wise have possessed. The instrument, therefore, must either appear on its face 
 to be, or be in fact, one which, if true, would possess some legal validity ; it must 
 be legally capable of effecting a fraud. If a writing be invalid upon its face, 
 so that if genuine, it would have no legal efficacy, it cannot be the subject of 
 forgery. i^People v. Shall, 9 Cowen, 778 ; People v. Harrison, 8 Barb. 560.) 
 It is not forgery, for example, to fraudulently alter a will which is not attested 
 by the requisite number of witnesses (Rex v. Wall, 2 East. P. C. 953.) 
 " But there is a distinction between the case of an instrument apparently 
 void, and one where the invalidity is to be made out by the proof of some 
 extrinsic fact. ' In the former case, the party who makes the instrument, can- 
 not, in general, be convicted of forgery, but in the latter he may." {People 
 V. Galloway, 17 Wend. 540.) If, therefore, the invalidity is only discover- 
 able upon inquiry and examination, the fraudulent fabrication will constitute 
 forgery. It is a general rule that any instrument is of sufficient legal efficacy 
 to be the subject of forgery, when it may be made the foundation of a legal 
 liability, or injuriously compromit the interests of persons relying upon its 
 genuineness. Thus, forgery may be committed by making or altering a 
 bond, a bill of exchange or promissory note, an assignment of a legal claim. 
 
978 OFFENCES AGAINST PRIVATE PROPERTY. 
 
 of statutes, a more severe punishment is inflicted on the offender 
 in many particular cases, which are so multipUed of late as almost 
 to become general. I shall mention the principal instances. 
 
 a receipt, a letter of credit, an order for the delivery of money or goods, a 
 testimonial of cliaracter as a servant, a letter of recommendation for an ap- 
 pointment to office, or other similar instruments. (^Bowles v. State, 37 O. St. 
 35 ; Comm. v. Welch, 148 Mass. 296 ; Reg. v. Moah, 7 Cox C. C. 503 ; Noahes 
 v. People, 25 N. Y. 380; see 53 Mich. 523 ; 32 Kan. 360; 61 Md. 309.) 
 
 Any alteration of an instrument is sufficient to constitute forgery by which 
 its legal effect is in any respect altered. It is not necessary that the whole 
 writing should be fictitious. Making a fraudulent insertion, alteration, or 
 erasure, in any material part of a true document, by which another may be 
 defrauded ; the addition of a false signature to a true instrument, or a real 
 signature to a false one ; the insertion of paragraphs, or clauses, or the 
 change of a word or a letter, by which the legal effect of the instrument is 
 changed, are sufficient acts of forgery. But the alteration, to be sufficient, 
 must be material. It is not, therefore, forgery to insert in a written instru- 
 ment any word which the law would supply. Signing the name of a fictitious 
 person to an instrument, or of a person deceased, is a fraudulent alteration, 
 as well as the unauthorized use of the name of a living person. A man may 
 even be guilty of forgery by the use of his own name ; as when one endorses 
 a bill of exchange, made payable to another person of the same name, and 
 thus negotiates it, knowing that he has no valid title. (Mead v. Young, 4 
 T. R. 28; People v. Peacock, 6 Cowen, 72.) A document that is printed. 
 or partly written and partly printed, may be tlie subject of forgery, as well 
 as one that is entirely written. (^Benson v. McMahon, 127 U. S. 457.) 
 
 In forgeries, as in other criminal offenses, an evil or criminal intent is 
 necessary. This is not necessarily an intent to defraud a particular person 
 or persons ; it is sufficient, if the design be to use the fictitious instrument 
 as genuine. If a forged instrument, therefore, be used, or put into circula- 
 tion, the offense will be complete, although the forger intends to take such 
 action subsequently as will avert all injury to those whose interests are af- 
 fected. But if one employ another's signature, believing on reasonable 
 grounds that he is authorized so to do as agent, there will be no forgery, on 
 account of the absence of fraudulent purpose. {_Reg. v. Geach, 9 C. &. P. 
 499 ; Comm. v. Henry. 1 18 Mass. 460 ; Parmelee v. People, 8 Hun, 623.) 
 
 It is not necessary, by the common law, that any actual injury should re- 
 sult from the forgery. The mere making or alteration of the writing, with 
 evil intent, is alone sufficient. 
 
 Both in England and in this country, there are comprehensive statutes 
 relating to the offense of forgery ; and the provisions are frequently minute 
 and specific, to prevent the fraudulent fabrication of a large variety of le£;al 
 instruments. It is a general rule, that an alleged offender may be prosecuti-d 
 either under the State statute or under the common-law, if his act would 
 constitute forgery under either system of principles. But, in some States, 
 the common-law procedure has been entirely rejected. 
 
 Utttrincr forced instruments, i. e., attempting to perpetrate an actual fraud 
 
OFFENCES A GAINS T PRI VA TE PR OPER TY. 979 
 
 By statute 5 Eliz., ch. 14, to forge or make, or knowingly to 
 publish or give in evidence, any forged deed, court-roll, or will, 
 with intent to affect the right of real property, either freehold or 
 copyhold, is punished by a forfeiture to the party grieved of 
 double costs and damages : by standing in the pillory, and having 
 both his ears cut off, and his nostrils slit, and seared ; by for- 
 feiture to the crown of the profits of his lands, and by perpetual 
 imprisonment. For any forgery relating to a term of years, or 
 annuity, bond, obligation, acquittance, release, or discharge of 
 any debt or demand of any personal chattels, the same forfeiture 
 is given to the party grieved ; and on the offender is inflicted the 
 pillory, loss of one of his ears, and a year's imprisonment ; the 
 second offence in both cases being felony without benefit of 
 clergy. 
 
 Besides this general act, a multitude of others, since the Rev- 
 olution (when paper-credit was first established), have inflicted 
 capital punishment on the forging, altering, or uttering as true, 
 when forged, of any bank bills or notes, or other securities ; (rf 
 bills of credit issued from the exchequer ; of South-sea bonds, 
 &c. ; of lottery tickets or orders ; of army or navy debentures ; 
 of East India bonds ; of writings under the seal of the London, 
 or royal exchange assurance ; of a letter of attorney or other 
 power to receive or transfer stock or annuities ; and on the per- 
 sonating a proprietor thereof, to receive or transfer such annui- 
 ties, stock, or dividends, &c. 
 
 There are also certain other general laws, with regard to 
 forgery. So that I believe, through the number of these gen- 
 eral and special provisions, there is now hardly a case possi- 
 ble to be conceived wherein forgery, that tends to defraud, 
 whether in the name of a real or fictitious person, is not made a 
 capital crime. 
 
 These are the principal infringements of the rights of prop- 
 erty ; which were the last species of offences against individuals 
 or private subjects which the method of distribution has led us 
 to consider. We have before examined the nature of all offences 
 
 by using them as genuine, was not at common law an essential element ot the 
 crime of forgery.. It is deemed, however, to be a substantive offense, and is 
 often so declared by statute. The putting of a forged deed ou record has been 
 he'd to be an uttering of it. (Paige v. People, 3 Abb. Dec. [N. Y.] 439.) 
 
98o MEANS OF PREVENTING OFFENCES. 
 
 against the public, or commonwealth, against the king or su- 
 preme magistrate, the father and protector of that community ; 
 against the universal law of all civilized nations, together with 
 some of the more atrocious offences, of publicly pernicious con- 
 sequence, against God and his holy religion. And these several 
 heads comprehend the whole circle of crimes and misdemeanors, 
 with the punishment annexed to each that are cognizable by the 
 laws of England. 
 
 CHAPTER XVI. 
 
 [bL. COMM. BOOK IV. CH. XVIIl.] 
 
 0/ the Means of Preventing Offences. 
 
 We are now arrived at the fifth general branch, or head under 
 which I proposed to consider the subject of this book of our Com- 
 mentaries ; viz., the means of preventing the commission of 
 crimes and misdemeanors. And really it is an honor, and almost 
 a singular one, to our English laws, that they furnish a title of 
 this sort ; swvzc: preventive \\)&\xzz is upon every principle of reason, 
 of humanity, and of sound policy preferable in all respects to 
 punishing )\s.s'i\CQ ; the execution of which, though necessary, and 
 in its consequences a species of mercy to the commonwealth, 
 is always attended with many harsh and disagreeable circum- 
 stances. 
 
 This preventive justice consists in obliging those persons, 
 whom there is a probable ground to suspect of future misbe- 
 havior, to stipulate with and to give full assurance to the public 
 that such offence as is apprehended shall not happen ; by finding 
 pledges or securities for keeping the peace or for their good be- 
 havior. Let us therefore consider, first, what this security is ; 
 next, who may take or demand it ; and lastly, how it may be dis- 
 charged. 
 
 I. This security consists in being bound, with one or more 
 securities, in a recognizance or obligation to the king, entered on 
 record, and taken in some court or by some judicial officer; 
 
OF THE MEANS OF PREVENTING OFFENCES. 981 
 
 whereby the parties acknowledge themselves to be indebted to 
 the crown in the sum required (for instance 100/.), with condition 
 to be void and of none effect, if the party shall appear in court 
 on such a day, and in the meantime shall keep the peace either 
 generally, towards the king and all his liege people ; or particu- 
 larly also, with regard to the person who craves the security. Or 
 if it be for the good behavior, then on condition that he shall 
 demean and behave himself well (or be of good behavior), either 
 generally or specially, for the time therein limited, as for one or 
 more years, or for life. This recognizance, if taken by a justice 
 of the peace, must J)e certified to the next sessions in pursuance 
 of the statute 3 Hen. VII., ch. i, and if the condition of such 
 recognizance be broken, by any breach of the peace in the one 
 case, or any misbehavior in the other, the recognizance becomes 
 forfeited or absolute : and being estreated or extracted (taken out 
 from among the other records) and sent up to the exchequer, the 
 party and his sureties, having now become the king's absolute 
 debtors, are sued for the several sums in which they are respect- 
 ively bound. 
 
 2. Any justices of the peace, by virtue of their commission, or 
 those who are ex officio conservators of the peace, as was men- 
 tioned in a former volume, may demand such security according 
 to their own discretion : or it may be granted at the request of any 
 subject, upon due cause shown, provided such demandant be 
 under the king's protection. Wives may demand it against their 
 husbands; or husbands, if necessary, against their wives. But 
 feme coverts, and infants under age, ought to find security by their 
 friends only, and not to be bound themselves : for they are inca- 
 pable of engaging themselves to answer any debt ; which as we 
 observed, is the nature of these recognizances or acknowledg- 
 ments. 
 
 3. A recognizance may be discharged, either by the demise 
 of the king to whom the recognizance is made ; or by the 
 death of the principal party bound thereby, if not before for- 
 feited ; or by order of the court to which such recognizance is 
 certified by the justices (as the quarter sessions, assizes, or king's 
 bench), if they see sufficient cause ; or in case he at whose ijp- 
 quest it was granted, if granted upon a private account, will 
 release it, or does not make his appearance to pray that it may 
 be continued. 
 
982 OF THE MEANS OF PREVENTING OFFENCES. 
 
 Thus far what has been said is appUcable to both species ol 
 recognizances, for the peace and for \h& good behavior: de pace, 
 et legalitate, tuenda, as expressed in the laws of King Edward. 
 But as these two species of securities are in some respects dif- 
 ferent, especially as to the cause of granting, or the means of 
 forfeiting them, I shall now consider them separately : and first, 
 shall show for what cause such a recognizance, with sureties for 
 the peace, is grantable ; and then, how it may be forfeited. 
 
 1. Any justice of the peace may, ex officio, bind all those to 
 keep the peace, who in his presence make any affray ; or threaten 
 to kill or beat another ; or contend together with hot and angry 
 words ; or go about with unusual weapons or attendance, to the 
 terror of the people ; and all such as he knows to be common 
 barretors ; and such as are brought before him by the constable 
 for a breach of peace in his presence ; and all such persons, as, 
 having been before bound to the peace, have broken it and for- 
 feited their recognizances. Also, wherever any private man hath 
 just cause to fear that another will burn his house or do him a 
 corporal injury, by killing, imprisoning, or beating him ; or that 
 he will procure others so to do ; he may demand surety of the 
 peace against such person: and every justice of the peace is 
 bound to grant it, if he who demands it will make oath, that he 
 is actually under fear of death or bodily harm ; and will show that 
 he has just cause to be so, by reason of the other's menaces, 
 attempts, or having lain in wait for him ; and will also farther 
 swear, that he does not require such surety out of malice, or for 
 mere vexation. This is called swearing the peace against another : 
 and, if the party does not find such sureties, as the justice in his 
 discretion shall require, he may immediately be committed till 
 he does. 
 
 2. Such recognizance for keeping the peace, when given, 
 may be forfeited by any actual violence, or even an assault, or 
 menace, to the person of him who demanded it, if it be a special 
 recognizance ; or, if the recognizance be general, by any unlaw- 
 ful action whatsoever, that either is or tends to a breach of the 
 peace ; or more particularly, by any one of the many species of 
 offences which are mentioned as crimes against the public peace 
 in the ninth chapter of this book : or by any private violence 
 committed against any of His Majesty's subjects. But a bare 
 trespass upon the lands or goods of another, which is a ground 
 
OF THE MEANS OF PREVENTING OFFENCES. 983 
 
 for a civil action, unless accompanied with a wilful breach of the 
 peace, is no forfeiture of the recognizance. Neither are mere 
 leproachful words, as calling a man a knave or liar, any breach of 
 the peace, so as to forfeit one's recognizance (being looked upon 
 to be merely the effect of unmeaning heat and passion), unless 
 they amount to a challenge to fight. 
 
 The other species of recognizance, with sureties, is for the 
 good abearance or good behavior. This includes security for the 
 peace, and somewhat more : we will therefore examine it in the 
 same manner as the other. 
 
 I. First, then, the justices are empowered by the statute 34 
 Edw. III., ch. I, to bind over to the good behavior towards the 
 king and his people, all them that be not of good fame, wherever 
 they be found ; to the intent that the people be not troubled nor en- 
 dangered, nor the peace diminished, nor merchants and others, pass- 
 ing by the highways of the realm, be disturbed nor put in the peril 
 which may happen by such offenders. Under the general words 
 of this expression, that be not of good fame, it is holden that a 
 man may be bound to his good behavior for causes of scandal, 
 contra bonos mores, as well as contra pacem : as, for haunting 
 bawdy-houses with women of bad fame ; or for keeping such 
 women in his own house : or for words tending to scandalize the 
 government, or in abuse of the officers of justice, especially in the 
 execution of their office. Thus also a j ustice may bind over all night- 
 walkers ; eaves-droppers ; such as keep suspicious company, or are 
 reported to be pilferers or robbers ; such as sleep in the day, and 
 wake in the night ; common drunkards ; whoremasters ; the 
 putative fathers of bastards ; cheats ; idle vagabonds ; and other 
 persons whose misbehavior may reasonably bring them within 
 the general words of the statutes, as persons not of good fame : 
 an expression, it must be owned, of so great a latitude, as leaves 
 much to be determined by the discretion of the magistrate him- 
 self. But if he commits a man for want of sureties, he must ex- 
 Dress the cause thereof with convenient certainty ; and take care 
 that such cause be a good one. 
 
 2. A recognizance for the good behavior may be forfeited by 
 all the same means, as one for the security of the peace may be ; 
 and also by some others. As, by going armed with unusual at- 
 tendance, to the terror of the people; by speaking words tending 
 to sedition ; or by committing any of those acts of misbehavior. 
 
984 OF COURTS OF CRIMINAL JURISDICTION. 
 
 which the recognizance was intended to prevent. But not by 
 barely giving fresh cause of suspicion of that which perhaps may 
 never actually happen: for, though it is just to compel suspected 
 persons to give security to the public against misbehavior that is 
 apprehended ; yet it would be hard, upon such suspicion, without 
 tJie proof of any actual crime, to punish them by a forfeiture 
 of their recognizance.' 
 
 CHAPTER XVII. 
 
 [bL. COMM. — BOOK IV. CH. XIX.] 
 
 Of Courts of a Criminal yurisdiction. 
 
 The sixth, and last, object of our inquiries will be the method 
 of inflicting those punishments, which the law has annexed to par- 
 ticular offences ; and which I have constantly subjoined to the 
 description of the crime itself. In the discussion of which I shall 
 pursue much the same general method that I followed in the 
 preceding book, with regard to the redress of civil injuries : by, 
 first, pointing out the several courts of criminal jurisdiction, 
 wherein offenders may be prosecuted to punishment ; and by, 
 secondly, deducing down, in their natural order, and explaining, 
 the several proceedings therein. 
 
 First, then, in reckoning up the several courts of criminal 
 jurisdiction, I shall, as in the former case, begin with an account 
 of such as are of s. public and j-««^ra/ jurisdiction throughout the 
 whole realm ; and, afterwards, proceed to such as are only of a 
 private and special jurisdiction, and confined to some particular 
 parts of the kingdom. 
 
 I. The high court oi parliament ; which is the supreme court 
 in the kingdom, not only for the making, but also for the execu- 
 
 ' The subjects of this chapter are matters of statutory regulation in the 
 various States of the Union; but there is a close resemblance between the 
 practice in this country and that detailed in the text ; and the classes of cases 
 in which persons may be bound over to keep the peace, are very much the 
 same as those here mentioned. 
 
OF COURTS OF CRIMINAL JURISDICTION. 985 
 
 tion of laws ; by the trial of great and enormous offenders, 
 whether lords or commoners, in the method of parliamentary im- 
 peachment. As for acts of parliament to attaint particular per- 
 sons of treason or felony, or to inflict pains and penalties, beyond 
 or contrary to the common law, to serve a special purpose, I 
 speak not of them ; being to all intents and purposes new laws, 
 xaaA&pro re nata, and by no means an execution of such as are 
 already in being. But an impeachment before the lords by the 
 commons of Great Britain, in parliament, is a prosecution of the 
 already known and established law, and has been frequently put in 
 practice ; being a presentment to the most high and supreme court 
 of criminal j urisdiction by the most solemn grand inquest of the 
 whole kingdom. A commoner cannot, however, be impeached 
 before the lords for any capital offence, but only for high misde- 
 meanors : a peer may be impeached for any crime. And they 
 usually (in case of an impeachment of a peer for treason) address 
 the Crown to appoint a lord high steward for the greater dignity 
 and regularity of their proceedings ; which high steward was 
 formerly elected by the peers themselves, though he was gener- 
 ally commissioned by the king; but it hath of late years been 
 strenuously maintained, that the appointment of a high steward 
 in such cases is not indispensably necessary, but that the house 
 may proceed without one. The articles of impeachment are a 
 kind of bills of indictment, found by the House of Commons, 
 and afterwards tried by the Lords ; who are in cases of misde- 
 meanors considered not only as their own peers, but as the peers 
 of the whole nation. This is a custom derived to us from the 
 constitution of the ancient Germans ; who in their great councils 
 sometimes tried capital accusations relating to the public : " licet 
 apud consilium accusare quoque, et discrimen capitis intendere." 
 And it has a peculiar propriety in the English constitution ; 
 which has much improved upon the ancient model imported 
 hither from the continent. For, though in general the union of 
 the legislative and judicial- powers ought to be most carefully 
 avoided, yet i^ may happ en that a subject, inUristed with the ad- 
 minis tration'^f p ublic affairs, may infringe the rights of, the 
 people, and be guilty of such crimes, as the ordinary magistrate 
 either dares norpFcannot punish. Of these the representatives 
 of the people, or House of Commons, cannot properly judge; 
 because their constituents are the parties injured, and can there- 
 
986 OF COURTS OF CRIMINAL JURISDICTION. 
 
 fore only impeach. But before what court shall this impeach- 
 ment be tried ? Not before the ordinary tribunals, which would 
 naturally be swayed by the authority of so powerful an accuser. 
 Reason therefore will suggest, that this branch of the legislature, 
 which represents the people, must bring its charge before the 
 other branch, which consists of the nobility, who have neither the 
 same interests nor the same passions as popular assemblies. This 
 is a vast superiority, which the constitution of this island enjoys, 
 over those of the Grecian or Roman republics ; where the people 
 were at the same time both judges and accusers. It is proper 
 that the nobility should judge, to insure justice to the accused, 
 as it is proper that the people should accuse, to insure justice to 
 the commonwealth. And therefore, among other extraordinary 
 circumstances attending the authority of this court, there is one 
 of a very singular nature, which was insisted on by the House of 
 Commons in the case of the Earl of Danby, in the reign of 
 Charles II.; and it is now enacted by statute 12 and 13 W. III., 
 ch. 2, that no pardon under the great seal shall be pleadable 
 to an impeachment by the commons of Great Britain in parlia- 
 ment.' 
 
 2. The court of kings bench., concerning the nature of which: 
 we partly inquired in the preceding book, was (we may remem- 
 ber) divided into a crown side, and a plea side. And on the 
 crown side, or crown office, it takes cognizance of all criminal 
 causes, from high treason down to the most trivial misdemeanoi 
 or breach of the peace. Into this court also indictments from all 
 inferior courts may be removed by writ of certiorari, and tried eithei 
 at bar, or at nisi prius, by a jury of the county out of which the- 
 indictment is brought. The judges of this court are the supreme 
 coroners of the kingdom. And the court itself is the princi- 
 pal court of criminal jurisdiction known to the laws of England. 
 For which reason by the coming of the court of king's bench into 
 any county (as it was removed to Oxford on account of the sickness 
 
 ' It is provided, by the United States Constitution, that charges of im- 
 peachment shall be preferred by the House of Representatives, and that 
 they shall be tried before the Senate. In the several States of the Union, 
 the practice is the same ; the lower and the higher legislative bodies exer- 
 cising respectively similar functions. (See, upon this Object, page 898, note 
 3, ante:) 
 
OF COURTS OF CRIMINAL JURISDICTION. 987 
 
 in 1665), all former commissions of oyer and terminer, and gen- 
 eral jail delivery, are at once absorbed and determined ipso 
 facto. 
 
 3. The high court of admiralty, held before the Lord High Ad- 
 miral of England, or his deputy, styled the judge of the ad- 
 miralty, is not only a court of civil but also of criminal jurisdic- 
 tion." This court hath cognizance of all crimes and offences 
 committed either upon the sea, or on the coasts, out of the body 
 or extent of any English county ; and by statute 15 Ric. II., ch. 
 3, of death and mayhem happening in great ships being and 
 hovering in the main stream of great rivers, below the bridges 
 of the same rivers, which are then a sort of ports or havens ; 
 such as are the ports of London and Gloucester, though they lie 
 at a great distance from the sea. But, as this court proceeded 
 without jury, in a method much conformed to the civil law, the 
 exercise of a criminal jurisdiction there was contrary to the genius 
 of the law of England : inasmuch as a man might be there de- 
 prived of his life by the opinion of a single judge, without the 
 judgment of his peers. And besides, as innocent persons might 
 thus fall a sacrifice to the caprice of a single man, so very gross 
 offenders might, and did frequently, escape punishment : for the 
 rule of the civil law is, how reasonably I shall not at present in- 
 quire, that no judgment of death can be given against offenders, 
 without proof by two witnesses, or a confession of the fact by 
 themselves. This was always a great offence to this English 
 nation : and therefore in the eighth year of Henry VI. it was en- 
 deavored to apply a remedy in parliament : which then miscar- 
 ried for want of the royal assent. However, by the statute 28 
 Hen. VIII., ch. 15, it was enacted, that these offences should be 
 tried by commissioners of oyer and terminer, under the king's 
 great seal ; namely, the admiral or his deputy, and three or four 
 more (among whom two common law judges are usually ap)- 
 pointed) ; the indictment being first found by a grand jury of 
 twelve men, and afterwards tried by a petit jury : and that the 
 course of proceedings should be according to the law of the land. 
 
 • In regard to the present constitution of the Court of Admiralty, see 
 ante, page 660, note 3. Its jurisdiction has been variously modified by 
 statutes passed since the text was written, but it is not practicable nor iro- 
 portant to state their provisions. In this country, admiralty and maritime 
 jurisdiction is vested entirely it the courts of the United States. 
 
988 OF COURTS OF CRIMINAL JURISDICTION. 
 
 This is now the only method of trying marine felonies in the 
 court of admiralty ; the judge ot the admiralty still presiding 
 therein, as the lord mayor is the president of the session of oyer ' 
 and terminer in London. 
 
 These courts may be held in any part of the kingdom, and 
 their jurisdiction extends over crimes that arise throughout the 
 whole of it, from one end to the other. What follow are also of 
 a general nature, and universally diffused over the nation, but 
 yet are of a local jurisdiction, and confined to particular districts.' 
 Of which species are, 
 
 4, 5. The courts of ^y^rand terminer, and the general ^i3:<?A 
 delivery, which are held before the king's commissioners, among 
 whom are usually two judges of the courts at Westminster, twice 
 in every year in every county of the kingdom ; except the four 
 northern ones, where they are held only once, and London and 
 Middlesex, wherein they are held eight times. These were 
 slightly mentioned in the preceding book. We then observed, 
 that, at what is usually called the assizes, the judges sit by vir- 
 tue of five several authorities : two of which, the commission of 
 assize and its attendant jurisdiction of nisi prius, being princi- 
 pally of a civil nature, were then explained at large ; to which 
 I shall only add, that these justices have, by virtue of several 
 statutes, a criminal jurisdiction also, in certain special cases. 
 The third, which is the commission of ^t peace, was also treated 
 of in a former volume, when we inquired into the nature and of- 
 fice of a justice of the peace. I shall only add, that all the jus- 
 tices of the peace of any county, wherein the assizes are held, 
 are bound by law to attend them, or else are liable to a fine ; in 
 order to return recognizances, &c., and to assist the judges in 
 such matters as lie within their knowledge and jurisdiction, and 
 in which some of them have probably been concerned, by way 
 of previous examination. But the fourth authority is the com- 
 
 ^ Other criminal courts have been established in England, by recent en- 
 actments. One of these is the " Central Criminal Court," established within 
 a district composed of London, Middlesex, and parts of adjacent Counties, 
 and having cognizance of offenses committed within this district. The other 
 is a court ot appellate jurisdiction, established for the " consideration o£ 
 crown cases reserved." This consists of the judges of the High Court of Jus- 
 tice, five ot whom constitute a quorum. This court considers questions of law 
 reserved upon cases tried in lower courts, which resulted in a conviction ol 
 the prisoner. 
 
OF COURTS OF CRIMINAL JURlSniCTlON. 989 
 
 mission of oyer and terminer, to hear and determine all treasons, 
 felonies, and misdemeanors. This is directed to the judges and 
 several others, or any two of them ; but the judges or Serjeants 
 at law only are of the quorum, so that the rest cannot act with- 
 out the presence of one of them. The words of the commission 
 are, " to inquire, hear, and determine ; " so that by virtue of this 
 commission they can only proceed upon an indictment found at 
 the same assizes ; for they must first inquire by means of the grand 
 jury or inquest, before they are empowered to hear and deter- 
 mine by the help of the petit jury. Therefore they have, be- 
 sides, fifthly, a commission of general gaol-delivery ; which em- 
 Bowers them to try and deliver every prisoner, who shall be in 
 the gaol when the judges arrive at the circuit town, whenever or 
 before whomsoever indicted, or for whatever crime committed. 
 It was anciently the course to issue special writs of gaol-delivery 
 for each particular prisoner, which were called the writs de bono 
 et malo : but these being found inconvenient and oppressive, a 
 general commission for all the prisoners has long been established 
 in their stead. So that, one way or other, the gaols are in gen- 
 eral cleared, and all offenders tried, punished, or delivered, twice 
 in every year : a constitution of singular use and excellence. 
 Sometimes also, upon urgent occasions, the king issues a special 
 or extraordinary commission of oyer and terminer, and gaol-de- 
 livery, confined to those offences which stand in need of immedi- 
 ate inquiry and punishment : upon which the course of proceed- 
 ing is much the same, as upon general and ordinary commis- 
 sions. 
 
 6. The court of general quarter sessions of the peace is a court 
 that must be held in every county once in every quarter of a 
 year. It is held before two or more justices of the peace, one of 
 which must be of the quorum. The jurisdiction of this court, 
 by statute 34 Edw. III., ch. i, extends to the trying and deter- 
 mining all felonies and trespasses whatsoever : though they sel 
 dom, if ever, try any greater offence than small felonies within 
 the benefit of clergy ; their commission providing, that if any 
 case of difficulty arises, they shall not proceed to judgment, but 
 in the presence of one of the justices of the court of king's bench 
 or common pleas, or one of the judges of assize. And therefore 
 murders, and other capital felonies, are usually remitted for a 
 more solemn trial to the assizes. They cannot also try any new- 
 
990 OF COURTS OF CRIMINAL JURISDICTION. 
 
 created offence, without express power given them by the stat- 
 ute which creates it. But there are many offences and particu- 
 lar matters, which by particular statutes belong properly to this 
 jurisdiction, and ought to be prosecuted in this court : as, the 
 smaller misdemeanors against the public or commonwealth, not 
 amounting to felony ; and especially offences relating to the 
 game, highways, alehouses, bastard children, the settlement and 
 provision of the poor, vagrants, servants' wages, apprentices, and 
 popish recusants. Some of these are proceeded upon by indict- 
 ment ; and others in a summary way by motion and order there- 
 upon ; which order may, for the most part, unless guarded against 
 by particular statutes, be removed into the court of king's bench, 
 by a writ of certiorari facias, and be there either quashed or con- 
 firmed. The records or rolls of the sessions are committed to 
 the custody of a special officer denominated the custos rotulorum, 
 who is always a justice of the quorum ; and among them of the 
 quorum (saith Lambard) a man for the most part especially 
 picked out, either for wisdom, countenance, or credit. The nom- 
 ination of the custos rotulorum (who is the principal civil officer 
 in the county, as the lord lieutenant is the chief in military com- 
 mand) is by the king's sign manual : and to him the nomination 
 of the clerk of the peace belongs ; which office he is expressly 
 forbidden to sell for money.* 
 
 In most corporation towns there are quarter sessions kept be- 
 fore justices of their own, within their respective limits : which 
 have exactly the same authority as the general quarter sessions 
 of the county, except in a very few instances.^ 
 
 * The jurisdiction of the court of quarter sessions has been, in recent 
 times, much limited by statute, and it does not now extend to the trial of 
 capital felonies, nor of various felonies and misdemeanors of a graver 
 class. 
 
 6 In this country, each State has its own system of criminal courts. Re- 
 {ereoce must be made for information to the statutes, and books of ptactice 
 
OF SUMMARY CONVICTIONS. 991 
 
 CHAPTER XVIII. 
 
 [bL. COMM. — BOOK IV. CH. XX.] 
 Of Summary Convictions, 
 
 We are next, according to the plan I have laid down, to taka 
 into consideration the proceedings in the courts of criminal juris- 
 diction, in order fo the punishment of offences. These are plain, 
 easy, and regular ; the law not admitting any fictions, as in civil 
 causes, to take place where the life, the liberty, and the safety of 
 the subject are more immediately brought into jeopardy. And 
 these proceedings are divisible into two kinds ; summary and 
 regular: of the former, of which I shall briefly speak, before we 
 enter upon the latter, which will require a more thorough and 
 particular examination. 
 
 By a summary proceeding I mean principally such as is di- 
 rected by several acts of parliament (for the common la-v is a 
 stranger to it, unless in the case of contempts) for the' conviction 
 of offenders, and the inflicting of certain penalties created by 
 those acts of parliament. In these there is no intervention of a 
 jury, but the party accused is acquitted or condemned by the suf- 
 frage of such persons only, as the statute has appointed for his 
 judge. An institution designed professedly for the greater ease 
 of the subject, by doing him speedy justice, and by not harassing 
 the freeholders with frequent and troublesome attendances to try 
 every minute offence. But it has of late been so far extended 
 as, if a check be not timely given, to threaten the disuse of our 
 admirable and truly English trial by jury, unless only in capital 
 cases. For, 
 
 I. Of this summary nature are all trials of offences and frauds 
 contrary to the law of the excise, and other branches of the rev- 
 enue: which are to be inquired into and determined by the com- 
 missioners of the respective departments, or by justices of the 
 peace in the country. 
 
 II. Another branch of summary proceedings is that before 
 justices of the peace, in order to inflict divers petty pecuniary 
 
992 VF SUMMARY CONVICTIONS. 
 
 mulcts, and corporal penalties denounced by act of parliament 
 for many disorderly offences ; such as common swearing, drunken- 
 ness, vagrancy, idleness, and a vast variety of others. 
 
 The process of these summary convictions, it must be owned, 
 is extremely speedy. Though the courts of common law have 
 thrown in one check upon them, by making it necessary to sum- 
 mon the party accused before he is condemned. After this 
 summons, the magistrate, in summary proceedings, may go 
 on to examine one or more witnesses, as the statute may 
 require, upon oath ; and then make his conviction of the offender, 
 in writing : upon which he usually issues his warrant, either to 
 apprehend the offender, in case corporal punishment is to be in- 
 flicted on him ; or else to levy the penalty incurred, by distress 
 and sale of his goods. This is in general, the method of sum- 
 mary proceedings before a justice or justices of the peace ; but for 
 particulars we must have recourse to the several statutes, which 
 create the offence, or inflict the punishment : and which usually 
 chalk out the method by which offenders are to be convicted. 
 Otherwise they fall of course under the general rule, and can 
 only be convicted by indictment or information at the common 
 law.^ 
 
 III. To this head, of summary proceedings, may also be prop- 
 erly referred the method, immemorially used by the superior 
 courts of justice, of punishing contempts by attachment, and the 
 subsequent proceedings thereon. 
 
 The contempts, that are thus punished, are either direcU 
 which openly insult or resist the powers of the courts, or the 
 persons of the judges who preside there; or else are conseqtien- 
 tial, which (without such gross insolence or direct opposition) 
 
 ^ Provision is generally made by statute in the several States of this coun- 
 try, for summary convictions before justices of the peace or inferior magistrates, 
 for vagrancy, idleness, profane swearing, disorderly and riotous practices, etc. 
 It is a general rule that the methods of procedure prescribed by such statutes 
 must be strictly followed. {Beadleston v. Sprague, 6 Johns. loi.) Such 
 statutes have been held not to be unconstitutional, though they dispense with 
 trial by jury ; since they continue an established practice of the English law, 
 which has been from the earliest period a part of our judicial system. {Duffy 
 V. People, I Hill, 355 ; 6 Id. 75 ; Byers v. Comm., 42 Pa. St. 89.) But this 
 power of conviction without a jury cannot be extended to other classes of 
 cases than those in which it has ordinarily and customarily been employed. 
 (See Wynehamer v. People, 13 N. Y. 378 ; State v. Glenn, 54 Md. 572 ; Callan 
 V. Wilson, 127 U. S. 540; see also 42 & 43 Vict. c. 49.) 
 
OF SUMMAR V CONVICTIONS. 993 
 
 plainly tend to create a universal disregard of their authority. 
 The principal instances, of either sort, that have been usually 
 punishable by attachment, are chiefly of the following kinds. 1. 
 Those committed by inferior judges and magistrates ; by acting 
 unjustly, oppressively, or irregularly, in administering those por- 
 tions of justice which are intrusted to their distribution: or by 
 disobeying the king's writs issuing out of the superior courts, by 
 proceeding in a cause after it is put a stop to or removed by writ 
 of prohibition, certiorari, error, supersedeas, and the like. For, as 
 the king's superior courts (and especially the courts of the king's 
 bench) have a general superintendence over all inferior jurisdic- 
 tions, any corrupt or iniquitous practices of subordinate judges 
 are contempts of that superintending authority, whose duty it is 
 to keep them within the bounds of justice. 2. Those committed by 
 sheriffs, bailiffs, jailers, and other officers of the court by abusing 
 the process of the law, or deceiving the parties, by any acts of 
 oppression, extortion, collusive behavior, or culpable neglect of 
 duty. 3. Those committed by attorneys and solicitors, who are 
 also officers of the respective courts : by gross instances of fraud 
 and corruption, injustice to their clients, or other dishonest prac- 
 tice. For the malpractice of the officers reflects some dishonor 
 on their employers : and, if frequent or unpunished, creates 
 among the people a disgust against the courts themselves. 4. 
 Those committed by jurymen, in collateral matters relating to 
 the discharge of their office ; such as making default, when 
 summoned ; refusing to be sworn, or to give any verdict ; eating 
 or drinking without the leave of the court, and especially at the cost 
 of either party ; and other misbehavior or irregularities of a simi- 
 lar kind : but not in the mere exercise of their judicial capacities, 
 as by giving a false or erroneous verdict. 5. Those committed by 
 witnesses : by making default when summoned, refusing to be 
 sworn or examined, or prevaricating in their evidence when sworn. 
 6. Those committed by parties to any suit, or proceeding before 
 the court : as by disobedience to any rule or order, made in the 
 progress of a cause ; by non-payment of costs awarded by the court 
 upon a motion ; or, by non-observance of awards duly made by arbi- 
 trators or umpires, after having entered into a rule for submitting 
 to such determination. Indeed the attachment for most of this 
 species of contempts, and especially for non-payment of costs and 
 non-performance of awards, is to be looked upon rather as 
 
 64 
 
994 OF SUMMAR Y CONVICTIONS. 
 
 a civil execution for the benefit of the injured party, though car- 
 ried on in the shape of a criminal process for a contempt of the 
 aiuthority of the court. 7. Those committed by any other persons 
 under the degree of a peer : and even by peers themselves, when 
 enormous and accompanied with violence, such as forcible rescous 
 and the like ; or when they import a disobedience to the king's 
 great prerogative writs of prohibition, habeas corpus, and the 
 rest. Some of these contempts may arise in the face of the 
 court, as by rude and contumelious behavior; by obstinacy, per- 
 verseness, or prevarication : by breach of the peace, or any wil- 
 ful disturbance whatever : others in the absence of the party ; as 
 by disobeying or treating with disrespect the king's writ, or the 
 rules or process of the court ; by perverting such writ or process 
 to the purposes of private malice, extortion, or injustice ; by speak- 
 ing or writing contemptuously of the court or judges, acting in 
 their judicial capacity; by printing false accounts (or even true 
 ones without proper permission) of causes then depending in 
 judgment ; and by anything, in short, that demonstrates a gross 
 want of that regard and respect, which when once courts of jus- 
 tice are deprived of, their authority (so necessary for the good 
 order of the kingdom) is entirely lost among the people.'' The 
 process of attachment, for these and the like contempts, must ne- 
 cessarily be as ancient as the laws themselves. For laws, without 
 a competent authority to secure their administration from diso- 
 bedience and contempt, would be vain and nugatory. A power 
 therefore in the supreme courts of justice to suppress such con- 
 tempts, by an immediate attachment of the offender, results from 
 the first principles of judicial establishments, and must be an insep- 
 arable attendant upon every superior tribunal. Accordingly we 
 find it actually exercised as early as the annals of our law extend. 
 If the contempt be committed in the face of the court, the 
 offender may be instantly apprehended and imprisoned, at the 
 discretion of the judges, without any farther proof or examination. 
 But in matters that arise at a distance, and of which the court 
 cannot have so perfect a knowledge, unless by the confession of 
 
 2 There are statutes in force, in the several American States, providing for 
 the punishment of criminal contempts before courts of justice. Such acts 
 in violation of judicial authority and prerogatives, and in hindrance of the 
 regular administration of justice, are usually denominated contempts, as are 
 described and enumerated in the text. (See 128 U. S. 289; 131 U. S. 267.) 
 
OF SUMMAR Y CONVICTIONS. 995 
 
 the party or the testimony of others, if the judges upon affidavit 
 see sufficient ground to suspect that a contempt has been com- 
 mitted, they either make a rule on the suspected party to show 
 cause why an attachment should not issue against him ; or, in 
 very flagrant instances of contempt, the attachment issues in the 
 first instance ; as it also does, if no suiificient cause be shown to 
 discharge, and thereupon the court confirms, and makes absolute, 
 the original rule. This process of attachment is merely intended 
 to bring the party into court : and, when there, he must either 
 stand committed, or put in bail, in order to answer upon oath to 
 such interrogatories as shall be administered to him, for the better 
 information of the Court with respect to the circumstances of 
 the contempt. These interrogatories are in the nature of a 
 charge or accusation, and must by the course of the court be 
 exhibited within the first four days : and, if any of the inter- 
 rogatories is improper, the defendant may refuse to answer it, 
 and move the court to have it struck out. If the party can clear 
 himself upon oath, he is discharged ; but, if perjured, may be 
 prosecuted for the perjury. If he confesses the contempt, the 
 court will proceed to correct him by fine, or imprisonment, or 
 both, and sometimes by a corporal or infamous punishment. But 
 if he wilfully and obstinately refuses to answer, or answers in an 
 evasive manner, he is then clearly guilty of a high and repeated 
 contempt, to be punished at the discretion of the court. 
 
 It cannot have escaped the attention of the reader, that this 
 method of making the defendant answer upon oath to a criminal 
 charge, is not agreeable to the genius of the common law in any 
 other instance ; and seems indeed to have been derived to the 
 courts of king's bench and common pleas through the medium 
 of the courts of equity. For the whole process of the courts of 
 equity, in the several stages of a cause, and finally to enforce 
 their decrees, was, till the introduction of sequestrations, in the 
 nature of a process of contempt; acting or\y in personam zxiA 
 not in rent. And there, after the party in contempt has an- 
 swered the interrogatories, such his answer may be contradicted 
 and disproved by affidavits of the adverse party : whereas, in the 
 courts of law, the admission of the party to purge himself by 
 oath is more favorable to his liberty, though perhaps not less 
 dangerous to his conscience ; for, if he clears himself by his an- 
 swers, the complaint is totally dismissed. And, with regard to 
 
996 OF ARRESTS. 
 
 this singular mode of trial, thus admitted in this one particalat 
 instance, I shall only for the present observe, that as the process 
 by attachment in general appears to be extremely ancient, and 
 has in more modern times been recognized, approved, and con- 
 firmed by several express acts of parliament, so the method of 
 examining the delinquent himself upon oath with regard to the 
 contempt alleged, is at least of as high antiquity, and by long 
 and immemorial usage is now become the law of the land. 
 
 CHAPTER XIX. 
 
 [bL. COMM. BOOK IV. CH. XXI.] 
 
 Of Arrests. 
 
 We are now to consider the regular and ordinary method of 
 proceeding in the courts of criminal jurisdiction ; which may be 
 distributed under twelve general heads, following each other in 
 a progressive order, viz.: i. Arrest; 2. Commitment, and 
 bail ; 3. Prosecution ; 4. Process ; 5. Arraignment, and its 
 incidents ; 6. Plea, and issue ; 7. Trial, and conviction ; 8. 
 Clergy ; 9. Judgment, and its consequences ; 10. Reversal of 
 Judgment; 11. Reprieve, or pardon; 12. Execution; — all of 
 which will be discussed in the subsequent part of this book. 
 
 First, then, of ^n arrest ; which is the apprehending or re- 
 straining of one's person, in order to be forthcoming to answer an 
 alleged or. suspected crime. To this arrest all persons what- 
 soever are, without distinction equally liable in all criminal cases : 
 but no man is to be arrested, unless charged with such a crime, 
 as will at least justify holding him to bail when taken. And, in 
 general, an arrest may be made four ways : i. By warrant ; 2. 
 By an officer without warrant ; 3. By a private person also 
 without a warrant ; 4. By a hue and cry. 
 
 I. A warrant may be granted in extraordinary cases by 
 the privy council, or secretaries of state ; but ordinarily by 
 justices of the peace.' This they may do in any cases where they 
 
 ' The necessary contents of a warrant, the mode of obtaining its issue. 
 
UF ARRESTS. 997 
 
 have a jurisdiction over the offence ; in order to compel the per- 
 son accused to appear before them : for it would be absurd to 
 give them power to examine an offender, unless they had also a 
 power to compel him to attend, and submit to such examination. 
 And this extends undoubtedly to all treasons, felonies, and 
 breaches of the peace ; and also to all such offences as they have 
 power to punish by statute. Sir Edward Coke, indeed, hath laid 
 it down that a justice of the peace cannot issue a warrant to ap- 
 prehend a felon upon bare suspicion ; no, not even till an indict- 
 ment be actually found : and the contrary practice is by others 
 held to be grounded rather upon connivance than the express 
 rule of law ; though now by long custom established. A doctrine 
 which would in most cases give a loose to felons to escape with- 
 out punishment ; and therefore Sir Matthew Hale hath combated 
 it with invincible authority and strength of reason : maintaining, 
 
 1. That a justice of the peace hath power to issue a warrant to ap- 
 prehend a person accused of felony, though not yet indicted; and, 
 
 2. That he may also issue a warrant to apprehend a person sus- 
 pected of felony, though the original suspicion be not in himself, 
 but in the party that prays his warrant ; because he is a com- 
 petent judge of the probability offered to him of such suspicion. 
 But in both cases it is fitting to examine upon oath the party 
 requiring a warrant as well to ascertain that there is a felony or 
 other crime actually committed, without which no warrant should 
 be granted ; as also to prove the cause and probability of suspect 
 ing the. party against whom the warrant is prayed. This warrant 
 ought to be under the hand and seal of the justice, should set forth 
 the time and place of making, and the cause for which it is made, 
 and should be directed to the constable or other peace- 
 officer (or, it may be, to any private person by name), requiring 
 him to bring the party either generally before any justice of the 
 peace for the county, or only before the justice who granted it; 
 
 the method and time of execution and return, etc., are usually prescribed in 
 this country by statute, and such statutory provisions must be strictly fol- 
 lowed. There are no differences of material importance between the usual 
 practice in this country, and that stated in the text. It is provided by the 
 United States Constitution, that " no warrants shall issue except upon prob- 
 able cause, supported by oath or affirmation, and particularly describing 
 the place to be searched, and the persons or things to be seized." (Am'ts, 
 Art. 4.) 
 
998 OF ARRESTS. 
 
 the warrant in the latter case being called \ special ^■axxz.wx., A 
 general warrant to apprehend all persons suspected, without 
 naming or particularly describing any person in special, is illegal 
 and void for its uncertainty ; for it is the duty of the magistrate, 
 and ought nut to be left to the officer, to judge of the ground of 
 suspicion. And a warrant to apprehend all persons, guilty of a 
 crime therein specified, is no legal warrant : for the point, upon 
 which its authority rests, is a fact to be decided on a subsequent 
 trial ; namely, whether the person apprehended thereupon, be 
 really guilty or not. It is therefore in fact no warrant at all ; 
 for it will not justify the officer who acts under it : whereas a 
 warrant properly penned (even though the magistrate who 
 issues it should exceed his jurisdiction), will by statute 24 Geo. 
 II., ch. 44, at all events indemnify the officer who executes the 
 same ministerially. And when a warrant is received by the 
 officer he is bound to execute it, so far as the jurisdiction of the 
 magistrate and himself extends. A warrant from the. chief, or 
 other, justice of the court of king's bench extends all over the 
 kingdom : and is tested, or dated, England; not Oxfordshire , 
 Berks, or other particular county. But the warrant of a justice 
 of the peace in one county, as Yorkshire, must be backed, 
 that is, signed by a justice of the peace in another, as Mid- 
 dlesex, before it can be executed there. Formerly, regularly 
 speaking, there ought to have been a fresh warrant in every fresh 
 county : but the practice of backing warrants had Inng prevailed 
 without law, and was at last authorized by stalutes 23 Geo. II., 
 ch. 26, and 24 Geo. II., ch. 55. And now,- by statute 13 Geo. III., 
 ch. 3 1 , any warrant for apprehending an English offender, who 
 may have escaped into Scotland, and vice versa, may be endorsed 
 and executed by the local magistrates, and the offender conveyed 
 back to that part of the united kingdom, in which such offence 
 was committed. 
 
 2. Arrest by officers without warrant., may be executed, I. 
 By a justice of the peace ; who may himself apprehend, or cause 
 to be apprehended, by word only, any person committing a felony 
 or breach of the peace in his presence. 2. The sheriff, and, 3. 
 The coroner, may apprehend any felon within the county with- 
 out warrant. 4. The constable, of whose office we formerly 
 spoke, hath great original and inherent authority with regard to 
 arrests. He may, without warrant, arrest any one for a breach 
 
OF ARRESTS. 
 
 999 
 
 of the peace, committed in his view, and carry him before a jus- 
 tice of the peace. And, in case of felony actually committed, or 
 a dangerous wounding, whereby felony is like to ensue, he may 
 upon probable suspicion arrest the felon ; and for that purpose 
 is authorized (as upon a justice's warrant) to break open doors, 
 and even to kill the felon if he cannot otherwise be taken ; and, 
 if he or his assistants be killed in attempting such arrests, it is 
 murder in all concerned. 5. Watchmen, either those appointed 
 by the statute of Winchester, 13 Edw. I., ch. 4, to keep watch 
 and ward in all towns from sun-setting to sun-rising, or such as 
 are mere assistants to the constable, may virtute officii arrest all 
 offenders and particularly night-walkers, and commit them to 
 custody till the morning. 
 
 3. Any private person (and a fortiori a peace-officer) that is 
 present when any felony is committed, is bound by the law to 
 arrest the felon, on pain of fine and imprisonment, if he escapes 
 through the negligence of the standers-by. And they may jus- 
 tify breaking open the doors upon following such felon ; and if 
 they kill hint, provided he cannot be otherwise taken, it is justi- 
 fiable ; though if they are killed in endeavoring to rnake such ar- 
 rest, it is murder. Upon probable suspicion also a private 
 person may arrest the felon, or other person so suspected.'' But 
 he cannot justify breaking open doors to do it ; and if either 
 party kill the other in the attempt, it is manslaughter, and no 
 more. It is no more, because there is no malicious design to 
 kill : but it amounts to so much, because it would be of most 
 pernicious consequence, if, under pretence of suspecting felony, 
 any private person might break open a house, or kill another ; 
 
 2 There is this important difference between the right of an officer and of 
 a private person to arrest for felony without warrant ; that an officer will be 
 justified, though the person taken into custody be innocent, if he acted upon 
 a reasonable suspicion that a felony had actually been committed, though 
 none was committed in fact ; while a private person will only be justified, 
 under similar circumstances, in case a felony had actually been committed by 
 some one, (though not by the person arrested), and he acted upon reasonable 
 suspicion that the prisoner was the guilty person. (Jiolley v. Mix, 3 Wend. 
 350.) Both officers and private persons may arrest without warrant for a 
 breach of the peace committed in their presence, but not in other cases of mis- 
 demeanor, unless authority be specifically given by statute. {Taylor v. Strong, 
 3 Wend. 384 ; Burns v. Erben, 40 N. Y. 463 ; Phillips v. Trull, 1 1 Johns. 486.) 
 But these common law rules have been changed in some States by statute. 
 
 The old doctrine of arrest by " hue and cry," is now of little more than 
 historical interest. 
 
looo OF COMMITMENT AND BAIL. 
 
 and also because such arrest upon suspicion is h?iTe\y penmtted 
 by the law, and not enjoined., as in the case of those who are 
 present when a felony is committed. 
 
 4. There is yet another species of arrest, wherein both offi- 
 cers and pri\ate men are concerned, and that is, upon a hue and 
 cry, raised upon a felony committed. A hue (from huer, to 
 shout, and cry), hutesiutn et clamor, is the old common law pro- 
 cess of pursuing, with horn and with voice, all felons and such as 
 have dangerously wounded another. Hue and cry may be raised 
 either by precept of a justice of the peace, or by a peace-ofHcer, 
 or by any private man that knows of a felony. The party rais- 
 ing it must acquaint the constable of the vill with all the circum- 
 stances which he knows of the felony, and the person of the 
 felon ; and thereupon the constable is to search his own town, 
 and raise all the neighboring vills, and make pursuit with horse 
 and foot ; and in the prosecution of such hue and cry the consta- 
 ble and his attendants have the same powers, protection, and in- 
 demnification, as if acting under a warrant of a justice of the 
 peace. But if a man wantonly or maliciously raises a hue and 
 cry, without cause, he shall be severely punished as a disturber 
 of the public peace. 
 
 In order to encourage farther the apprehending of certain 
 felons, rewards and immunities are bestowed on such as bring 
 them to justice, by divers acts of parliament. 
 
 CHAPTER XX. 
 
 [bL. COMM. BOOK IV. CH. XXII.] 
 
 Of Commitment and Bail. 
 
 When a delinquent is arrested by any of the means men- 
 tioned in the preceding chapter, he ought regularly to be carried 
 before a justice of the peace : and how he is there to be treated, 
 I shall next show, under the second head, of commitment and 
 bail. 
 
 The justice before whom such prisoner is brought, is bound 
 immediately to examine the circumstances of the crime alleged; 
 
OF COMMITMENT AND BAIL. looi 
 
 and to this end by statute 2 & 3 Ph. & M., ch. 10, he is to take 
 in writing the examination of such prisoner, and the information 
 of those who bring him : which Mr. Lambard observes, was the 
 first warrant given for the examination of a felon in the English 
 law. For at the common law nemo tenebatur prodere seipsum : and 
 his fault was not to be wrung out of himself, but rather to be dis- 
 covered by other means and other men. If upon this inquiry it 
 manifestly appears, that either no such crime was committed, or 
 that the suspicion entertained of the prisoner was wholly ground- 
 less, in such cases only it is lawful totally to discharge him. Other- 
 wise he must either be committed to prison, or give bail : that is, put 
 in securities for his appearance, to answer the charge against him. 
 This commitment, therefore, being only for safe custody, wherever 
 bail will answer the same intention, it ought to be taken ; as in 
 most of the inferior crimes ; but in felonies, and other offences of 
 a capital nature, no bail can be a security equivalent to the actual 
 custody of the person. For what is there that a man may not 
 be induced to forfeit to save his own life ? and what satisfaction 
 or indemnity is it to the public, to seize the effects of them who 
 have bailed a murderer, if the murderer himself be suffered to 
 escape with impunity ? What the nature of bail is, hath been 
 shown in the preceding book, vis., a delivery or bailment, of a 
 person to his sureties, upon their giving (together with himself) 
 sufficient security for his appearance ; he being supposed to 
 continue in their friendly custody, instead of going to jail. In 
 civil cases we have seen that every defendant is bailable ; but in 
 criminal matters it is otherwise. Let us, therefore, inquire, in 
 what cases the party accused ought, or ought not, to be admitted 
 to bail. 
 
 And, first, to refuse or delay to bail any person bailable, is an 
 offence against the liberty of the subject, in any magistrate by 
 the common law, as well as by the statute Westm. i, 3 Edw. I., 
 ch. 15, and the habeas corpus act, 31 Car. II., ch. 2. And, lest 
 the intention of the law should be frustrated by the justices re- 
 quiring bail to a greater amount than the nature of the case de- 
 mands, it is expressly declared by statute i W. & M. stat. 2. ch, 
 I, that excessive bail ought not to be required ; though what bail 
 should be called excessive, must be left to the courts, on consid- 
 ering the circumstances of the case, to determine. And, on the 
 othei hand, if the magistrate takes insufficient bail, he is liable 
 
i002 OF COMMITMENT AND BAIL. 
 
 to be fined, if the criminal doth not appear. Bail may be taken 
 either in court, or in some particular cases by the sheriff, coro- 
 ner, or other magistrate ; but most usually "by the justices of the 
 peace. Regularly, in all offences either against the common law 
 or act of parliament, that are below felony, the offender ought to 
 be admitted to bail, unless it be prohibited by some special act 
 of parliament. In order, therefore, more precisely to ascertain 
 what offences are bailable. 
 
 Let us next see, who may not be admitted to bail, or 
 what offences are not bailable. And here I shall not consider 
 any one of those cases in which bail is ousted by statute, from 
 prisoners convicted of particular offences : for then such impris- 
 onment without bail is part of their sentence and punishment. 
 But, where the imprisonment is only for safe custody before the 
 conviction, and not for punishment afterwards, in such cases 
 bail is ousted or taken away, wherever the offence is of a 
 very enormous nature : for then the public is entitled to demand 
 nothing less than the highest security that can be given, viz., the 
 body of the accused ; in order to insure that justice shall be 
 done upon him, if guilty. Such persons, therefore, as the author 
 of the Mirror observes, have no other sureties but the four 
 walls of the prison. By the ancient common law, before and 
 since the conquest, all felonies were bailable, till murder was 
 excepted by statute : so that persons might be admitted to bail 
 before conviction almost in every case. But the statute Westm. 
 I, 3 Edw. I., ch. 15, takes away the power of bailing in treason, 
 and in divers instances of felony. The statutes 23 Hen. 
 VI., ch. 9, and i & 2 Ph. & Mar. ch. 13, give further regulations 
 in this matter ; and upon the whole we may collect, that no 
 justice of the peace can bail, i. Upon an accusation of treason: 
 nor, 2. Of murder : nor, 3. In case of manslaughter, if the 
 prisoner be clearly the slayer, and not barely suspected to be so; 
 or if any indictment be found against him : nor, 4. Such as, 
 being committed for felony, have broken prison ; because 
 it not only carries a presumption of guilt, but is also superadding 
 one felony to another : 5. Persons outlawed : 6. Such as 
 have abjured the realm : 7. Persons charged with arson. Others 
 are of a dubious nature ; as, 8. Thieves openly defamed and 
 known : 9. Persons charged with other felonies, or manifest and 
 enormous offences, not being of good fame : and 10. Accessories 
 
OF COMMITMENT AND BAIL. 1003 
 
 to felony, that labor under the same want of reputation. These 
 seem to be in the discretion of the justices, whether bailable 
 or not. The last class are such as must be bailed upon offering 
 suificient surety ; as, 11. Persons of good fame, charged with a 
 bare suspicion of manslaughter, or other inferior homicide; 12. 
 Such persons, being charged with petit larceny, or any felony 
 not before specified : or, 1 3. With being accessory to any felony. 
 Lastly, it is agreed that the court of king's bench (or any judge 
 thereof in time of vacation) may bail for any crime whatsoever, be 
 it treason, murder, or any other offence, according to the circum- 
 stance of the cas^. And herein the wisdom of the law is very 
 manifest. To allow bail to be taken commonly for such enor- 
 mous crimes, would greatly tend to elude the public justice : and 
 yet there are cases, though they rarely happen, in which it 
 would be hard and unjust to confine a man in prison, though 
 accused even of the greatest offence. The law has therefore 
 provided one court, and only one, which has a discretionary 
 power of bailing in any case: except only, even to this high 
 jurisdiction, and of course to all inferior ones, such persons 
 as are committed by either house of parliament, so long as the 
 session lasts : or such as are committed for contempts by any of 
 the king's superior courts of justice. 
 
 Upon the whole, if the offence be not bailable, or the party 
 cannot find bail, he is to be committed to the county jail by the 
 mittimiis of the justice, or warrant under his hand and seal, con- 
 taining the cause of his commitment : there to abide till 
 delivered by due course of law. But this imprisonment, as has 
 been said, is only for safe custody, and not for punishment ; 
 therefore in this dubious interval between the commitment 
 and trial, a prisoner ought to be used with the utmost humanity : 
 and neither be loaded with needless fetters, or subjected to other 
 hardships than such as are absolutely requisite for the purpose 
 of confinement only ; though what are so requisite, must too 
 often be left to the discretion of the jailers ; who are frequently 
 a merciless race of men, and, by being conversant in scenes of 
 misery, steeled against any tender sensation.' 
 
 ' The subject of commitment and bail is peculiarly a matter of statutory 
 regulation in this country ; but the general methods of procedure are not 
 materially different from those above stated. It is provided by the United 
 State Constitution, and by the State constitutions, that " excessive bail shall 
 
I004 OF THE SEVERAL MODES OF PROSECUTION. 
 
 CHAPTER XXI. 
 
 [bL. COMM. BOOK IV. CH. XXIII.] 
 
 Of the Several Modes of Prosecution. 
 
 The' next step towards the punishment of offenders is theii 
 prosecution or the manner of their formal accusation. And this 
 is either upon a previous finding of the fact by an inquest 
 or grand jury ; or without such previous finding. The former 
 way is either by presentment or indictment. 
 
 I. A presentment, generally taken, is a very comprehensive 
 term ; including not only presentments properly so called, but also 
 inquisitions of office, and indictments by a grand jury. A pre- 
 sentment, /w/^'/j' speaking, is the notice taken by a grand jury 
 of any offence from their own knowledge or observation, without 
 any bill of indictment laid before them at the suit of the king : as 
 the presentment of a nuisance, a libel and the like ; upon which 
 the officer of the court must afterwards frame an indictment, 
 before the party presented can be put to answer it. • An inquisi- 
 tion of office is the act of a jury summoned by the proper officer 
 to inquire of matters relating to the crown, upon evidence laid 
 before them. Some of these are in themselves convictions, and 
 cannot afterwards be traversed or denied ; and therefore the 
 inquest or jury ought to hear all that can be alleged on both 
 sides. Of this nature are all inquisitions of felo de se ; of flight 
 in persons accused of felony ; of deodands, and the like. Other 
 inquisitions may be afterwards traversed and examined ; as par- 
 ticularly the coroner's inquisition of the death of a man, when 
 
 not be required," but the determination of the proper amount in any par- 
 ticular case is left largely to the discretion of the court. An act of Congress 
 provides that, upon all arrests in criminal cases, bail shall be admitted, ex- 
 cept where the punishment vs\z.y be death, in which cases it shall not be ad- 
 mitted but by the supreme or a circuit court, or by a justice of the supreme 
 court, a circuit judge, or a judge of the district court, who shall exercise their 
 discretion therein, regarding the nature and circumstances of the offense, and 
 of the evidence and the usages of law. (U. S. Rev. Stat. §§ 1015, 1016.) In 
 the several States, authorit)' to admit to bail in cases of felony is usually 
 reserved to the superior courts or magistrates. 
 
OF THE SEVERAL MODES OF PROSElUTION. ioc? 
 
 it finds any one guilty of homicide ; for in such cases the offender 
 so presented must be arraigned upon this inquisition, and may 
 dispute the truth of it ; which brings it to a kind of indictment, 
 the most usual and effectual means of prosecution, and into 
 which we will therefore inquire a little more minutely. 
 
 II. An indictment is a written accusation of one or more 
 persons of a crime or misdemeanor, preferred to, and presented 
 upon oath by, a grand jury. To this end the sheriff of 
 every county is bound to return to every session of the peace, 
 and every commission of oyer and terminer, and of general gaol- 
 delivery, twenty-four good and lawful men of the county, some 
 out of every hundred, to inquire, present, do, and execute all 
 those things, which on the part of our lord the king shall then and 
 there be commanded them.^ They ought to be freeholders, but 
 to what amount is uncertain : which seems to be casus omissus, 
 and as proper to be supplied by the legislature as the qualifications 
 of the petit jury, which were formerly equally vague and uncer- 
 tain, but are now settled by several acts of parliament. 
 However, they are usually gentlemen of the best figure in 
 the county. As many as appear upon this panel are sworn 
 upon the grand jury, to the amount of twelve at the least, and not 
 more than twenty-three : that twelve may be a majority. 
 
 This grand jury are previously instructed in the articles 
 of their inquiry, by a charge from the judge who presides upon 
 the bench. They then withdraw, to sit and receive indictments, 
 which are preferred to them in the name of the king, but at the 
 the suit of any private prosecutor ; and they are only to hear 
 
 ' In a few of the American States, the number of members requisite to 
 form a grand jury has been changed by statute. Thus in New York it is 
 provided that there shall not be more than twenty-three, nor less than six- 
 teen persons sworn on any grand jury ; and in Massachusetts the number 
 varies from thirteen to twenty-three. But the rule seems to be universal, 
 that the concurrence of twelve only is necessary for the finding of an indict- 
 ment. 
 
 This method of prosecution has been deemed of such fundamental impor- 
 tance to the liberty of the citizen, that it has been provided in the United 
 States Constitution, and in the constitutions of the several States, that no 
 man shall be tried for a criminal offense (except for crimes of an inferior 
 grade, or such as recur among the military and naval forces), unless on pre- 
 sentment or indictment by a grand jury. After an indictment is found, the 
 cause is tried before a petit jury, which consists of twelve men, whose verdict 
 must be unanimous. (/» re Bain, 121 U. S. i ; Mackin v. U. S., 117 U. S. 
 348.) 
 
ioo6 OF THE SEVERAL MODES OF PROSECUTION. 
 
 evidence on behalf of the prosecution : for the finding of an 
 indictment is only in the nature of an inquiry or accusation, 
 which is afterwards to be tried and determined ; and the grand 
 jury are only to inquire upon their oaths, whether there be suffi- 
 cient cause to call upon the party to answer it. A grand jury, 
 however, ought to be thoroughly persuaded of the truth of 
 an indictment so far as their evidence goes ; and not to rest 
 satisfied merely with remote probabilities : a doctrine that might 
 be applied to very oppressive purposes. 
 
 The grand jury are sworn to inquire, only for the body of 
 the county, pro corpore comitatus ; and therefore they cannot 
 regularly inquire of a fact done out of that county for which 
 they are sworn, unless particularly enabled by an act of parlia- 
 ment. In general, all offences must be inquired into as well as 
 tried in the county where the fact is committed. Yet if larceny 
 be committed in one county, and the goods carried into another, 
 the offender may be indicted in either ; for the offence is com- 
 plete in both. Or he may be indicted in England, for larceny 
 in Scotland, and carrying the goods with him into England, or 
 vice versa ; or for receiving in cne part of the United Kingdom 
 goods that have been stolen in another. But for robbery, bur- 
 glary, and the like, he can only be indicted where the fact was 
 actually committed ; for though the carrying away and keeping 
 of the goods is a continuation of the original taking, and is 
 therefore larceny in the second county, yet it is not a robbery 
 or burglary in that jurisdiction. 
 
 When the grand jury have heard the evidence, if they think 
 t a groundless accusation, they used formerly to indorse on the 
 oack of the bill, " ignoramus ;" or, we know nothing of it : inti- 
 mating that though the facts might possibly be true, that truth 
 did not appear to them : but now, they assert in English more 
 absolutely, " not a true bill ;" or (which is the better way) " hot 
 found ; " and then the party is discharged without further an- 
 swer. But a fresh bill may afterwards be preferred to a subse- 
 quent grand jury. If they are satisfied of the truth of the accusa- 
 tion, they then indorse upon it, " a true bill ;" anciently, " billa 
 vera'' The indictment is then said to be found, and the party 
 stands indicted. But to find a bill there must at least twelve of the 
 jury agree : for so tender is the law of England of the lives of 
 the subjects, that no man can be convicted at the suit of the 
 
OF THE SEVERAL MODES OF PROSECUTION. loo; 
 
 king of any capital offence, unless by the unanimous voice oi 
 twenty-four of his equals and neighbors : that is, by twelve at 
 least of the grand jury, in the first place, assenting to the accu- 
 sation : and afterwards, by the whole petit jury, of twelve more, 
 finding him guilty, upon his trial. But if twelve of the grand 
 jury assent, it is a good presentment, though some of the rest 
 disagree. And the indictment, when so found, is publicly deliv- 
 ered into court. 
 
 Indictments must have a precise and sufficient certainty. 
 By statute i Hen. V., ch. 5, all indictments must set forth the 
 christian name, surname, and addition of the state, and degree, 
 mystery, town or place, and the county of the offender : and all 
 this to identify his person. The time, and place, are also to be 
 ascertained by naming the day, and township, in which the fact 
 was committed : though a mistake in these points is in general 
 not held to be material, provided the time be laid previous to 
 the finding of the indictment, and the place to be within the 
 jurisdiction of the court ; unless where the place is laid, not 
 merely as a venue, but as part of the description of the fact. 
 But sometimes the time may be very material, where there is 
 any situation in point of time assigned for the prosecution of 
 offenders : as by the statute 7 Will. III., ch. 3, which enacts, 
 that no prosecution shall be had for any of the treasons or mis- 
 prisions therein mentioned (except an assassination designed or 
 attempted on the person of the king), unless the bill of indict- 
 ment be found within three years after the offence committed : "^ 
 and in case of murder, the time of the death must be laid within 
 a year and a day after the mortal stroke was given. The offence 
 itself must also be set forth with clearness and certainty ; and in 
 some crimes particular words of art must be uSed, which are so 
 appropriated by the law to express the precise idea which it 
 entertains of the offence, that no other words, however synony- 
 mous they may seem, are capable of doing it. Thus, in treason, 
 the facts must be laid to be done " treasonably and against his 
 
 ° Statutes of limitation have been passed in a number of the States, in re- 
 gard to the trial of criminal offenses. Thus in New York it is provided that 
 indictments for murder may be found at any time after the death of the per- 
 son killed, but in all other cases they must be found within five years after 
 the commission of the offense ; but the time during which the defendant re- 
 sides without the State, is not estimated as part of the five years. (Penal CocJo 
 
ioo8 OF THE SEVERAL MODES OF PROSECUTION 
 
 allegiance;" anciently, " proditorie et contra ligeantice siice debi- 
 turn : " else the indictment is void. In indictments for murder, 
 it is necessary to say that the party indicted " murdered," not 
 "killed," or "slew," the other; which, till the late statute was 
 expressed in Latin by the word " murdravit." In all indictments 
 for felonies, the adverb " feloniously," " felonice" must be used ; 
 and for burglaries also, " burglariter" or in English, " burglari- 
 ously :" and all these to ascertain the intent. In rapes, the word 
 " rapuit," or " ravished," is necessary, and must not be expressed 
 by any periphrasis ; in order to render the crime certain. So in 
 larcenies also, the words "felonice cepit et asportavit, feloniously 
 took and carried away," are necessary to every indictment ; for 
 these only can express the very offence. Also in indictments 
 for murder, the length and depth of the wound should in general 
 be expressed, in order that it may appear to the court to have 
 been of a mortal nature : but if it goes through the body, then 
 its dimensions are immaterial, for that is apparently sufficient to 
 have been the cause of the death. Also, where a limb, or the 
 like, is absolutely cut off, there such description is impossible. 
 Lastly, in indictments, the value of the thin^, which is the sub- 
 ject or instrument of the offence, must sometimes be expressed. 
 In indictments for larcenies this is necessary, that it may appear 
 whether it be grand or petit larceny ; and whether entitled or not 
 to the benefit of clergy ; in homicide of all sorts it is necessary ; 
 as the weapon with which it is committed is forfeited to the 
 . king as a deodand.' 
 
 The remaining method of prosecution is without any previous 
 finding by a jury, to fix the authoritative stamp of verisimili- 
 tude upon the accusation. The only species of proceeding at 
 the suit of the king, without a previous indictment or present- 
 ment by a grand jury, now seems to be that of information. 
 
 III. Informations are of two sorts: first, those which are 
 partly at the suit of the king and partly at that of a subject ; 
 and secondly, such as are only in the name of the king. The 
 former are usually brought upon penal statutes, which inflict a 
 
 » These various rules of the common-law, in regard to the county in 
 which trials for certain offenses are to be had, and in regard to the necessary 
 contents of an indictment, have been somewhat changed or modified by 
 statute, both in England and in this country ; but, in most respects, the pre* 
 ent procedure is similar to that described in the text. 
 
OF THE SEVERAL MODES OF PROSECUTION. looy 
 
 penalty upon conviction of the offender, one part to the use of 
 the king, and another to the use of the informer ; and are a sort 
 of qui tarn actions (the nature of which was explained in a former 
 book), only carried on by a criminal instead of a civil process. 
 
 The informations that are exhibited in the name of the king 
 Alone, are also of two kinds; first, those which are truly and 
 properly his own suits, and filed ex officio by his own immediate 
 officer, the attorney-general ; secondly, those in which, though 
 the king is the nominal prosecutor, yet it is at the relation of 
 some private person or common informer ; and they are filed by 
 thejcing's coroner and attorney in the court of king's bench, 
 usually called the master of the crown-ofifice, who is for this pur 
 pose the standing officer of the public. The objects of the king's 
 own prosecutions, filed ex officio by his own attorney-general, 
 are properly such enormous misdemeanors, as peculiarly tend 
 to disturb or endanger his government, or to molest or affront 
 him in the regular discharge of his royal functions. For offences 
 so high and dangerous, in the punishment or prevention ol 
 which a moment's delay would be fatal, the law has given to the 
 crown the power of an immediate prosecution, without waiting 
 for any previous application to any other tribunal : which power, 
 thus necessary, not only to the ease and safety, but even to the very 
 existence of the executive magistrate, was originally reserved in 
 the great plan of the English constitution, wherein provision is 
 wisely made for the due preservation of all its parts. The ob- 
 jects of the other species of informations, filed by the master ol 
 the crown-office upon the complaint or relation of a private sub- 
 ject, are any gross and notorious misdemeanors, riots, batteries, 
 libels, iind other immoralities of an atrocious kind;, not peculiarly 
 tending to disturb the government (for those are left to the care 
 of the attorney-general), but which, on account of their mag- 
 nitude or pernicious example, deserve the most public animad- 
 version. And when an information is filed, either thus, or by 
 the attorney-general ex officio, it must be tried by a petit jury of 
 the county where the offence arises : after which, if the defend- 
 ant be found guilty, the court must be resorted to for his punish- 
 ment. 
 
 There can be no doubt but that this mode of prosecution by in- 
 formation (or suggestion), filed on record by the king's attorney 
 general, or by his coroner or master of the crown-office in the 
 
 6S 
 
loio OF THE SEVERAL MODES OF i'ROSECUTION. 
 
 court of king's bench, is as ancient as the common law itself. 
 But these informations (of every kind) are confined by the con- 
 stitutional law to mere misdemeanors only : for, whenever any 
 capital offence is charged, the same law requires that the ac- 
 cusation be warranted by the oath of twelve men, before the 
 party shall be put to answer it. The oppressive -se of them, in 
 the times preceding the revolution, occasioned a struggle, soon 
 after the accession of King William, to procure a declaration of 
 their illegality by the judgment of the court of king's bench. But 
 Sir John Holt, who then presided there, and all the judges, were 
 clearly of opinion, that this proceeding was grounded on the com- 
 mon law, and could not be then impeached. And, in a few 
 years afterwards, a more temperate remedy was applied in par- 
 liament, by statute 4 and 5 W. & M., ch. 18, which enacts, that 
 the clerk of the crown shall not file any information without ex- 
 press direction from the court of king's bench : and that every 
 prosecutor, permitted to promote such information, shall give 
 security by a recognizance of twenty pounds (which now seems 
 to be too small a sum) to prosecute the same with effect ; and 
 to pay costs to the defendant, in case he be acquitted thereon, 
 unless the judge, who tries the information, shall certify there 
 was reasonable cause for filing it ; and, at all events, to pay costs, 
 unless the information shall be tried within a year after issue 
 joined. But there is a proviso in this act, that it shall not ex- 
 tend to any other informations than those which are exhibited 
 by the master of the crown-oflfice : and, consequently, informa- 
 tions at the king's own suit, filed by his attorney-general, are no 
 way restrained thereby. 
 
 There is one species of informations, still farther regulated 
 by statute 9 Ann., ch. 20., viz., those in the nature of a writ of 
 quo •warra7tto ; which was shown, in the preceding book, to be 
 a remedy given to the crown against such as had usurped or in- 
 truded into any office or franchise. The modern information 
 tends to the same purpose as the ancient writ, being generally 
 made use of to try the civil rights of such franchises : though it 
 is commenced in the same manner as other informations are, by 
 leave of the court, or at the will of the attorney-general : being 
 properly a criminal prosecution, in order to fine the defendant 
 for his usurpation, as well as to oust him from his office ; yet 
 usually considered at present as merely a civil proceeding.* 
 
 * In this rountry, a few of the States have retained the English practice 
 
OF PROCESS UPON AN INDICTMENT. loi i 
 
 These are the several methods of prosecution instituted by 
 the laws of England for the punishment of offences ; of which 
 that by indictment is the most general. I shall therefore con- 
 fine my subsequent observations principally to this method <rf 
 prosecution ; remarking by the way the most material variations 
 that may arise, from the method of proceeding by infoimation. 
 
 CHAPTER XXII. 
 
 [bL. COMM. BOOK IV. CH. XXIV.] 
 
 Of Process upon an Indictment. 
 
 We are next, in the fourth place, to inquire into the manner 
 of issuing process, after indictment found, to bring in the ac- 
 cused to answer it. We have hitherto supposed the offender to 
 be in custody before the finding of the indictment ; in which 
 case he is immediately (or as soon as convenience permits) to be 
 arraigned thereon. But if he hath fled, or secretes himself, in 
 capital cases ; or hath not, in smaller misdemeanors, been bound 
 over to appear at the assizes or sessions, still an indictment may 
 be preferred against him in his absence ; since, were he present, 
 he could not be hes-xd before the grand jury against it. And, if 
 it be found, then process must issue to bring him into court ; for 
 the indictment cannot be tried, unless he personally appears : 
 according to the rules of equity in all cases, and the express pro- 
 vision of statute 28 Edw. III., ch. 3, in capital ones, that no 
 
 of prosecution by information, though with various statutory modifications. 
 Thus informations have been employed for otfunses of the grade of misde- 
 meanors, but not for felonies, in Indiana, New Hampshire, JVIassachusetts, 
 Connecticut, and some other States. They are usually filed by the attorney- 
 general of the State. But this procedure is much less common than prose- 
 cution by indictment. In some of the States, proceedings by information 
 we not permissible where an indictment lies. In the Federal courts, infor- 
 nations are sometimes employed in cases of illegal exportation of goods, 
 smuggling and similar offenses. But, by the United States Constitution, of. 
 tenses whirh are capital or infamous can only be prosecuted by indictment 
 (See 114 U. S. 417; iioU. S. 516; 60 Mich. 113; 87 Ind. 97.) 
 
IOI2 OF PROCESS UPON AN INDICTMENT. 
 
 man shall be put to death, without being brought to answer b) 
 due process of law. 
 
 The proper process on an indictment for any petit misde- 
 meanor, or on a penal statute, is a writ of venire facias, which 
 is in the nature of a summons to cause the party to appear. 
 And if by the return to such venire it appears that the party 
 hath lands in the county whereby he may be distrained, then a 
 distress infinite shall be issued from time to time till he appears. 
 But if the sheriff returns that he hath no lands in his bailiwick, 
 (then upon his non-appearance), a writ of capias shall issue, 
 which commands the sheriff to take his body, and have him at 
 the next assizes ; and if he cannot be taken upon the first capias, 
 a second and third shall issue, called an alias, and a pluries capias. 
 But, on indictments for treason or felony, a capias is the first pro- 
 cess : and, for treason or homicide, only one shall be allowed to 
 issue, or two in the case of other felonies, by statute 25 Edw. III., 
 ch. 14, though the usage is to issue only one in any felony ; 
 the provisions of this statute being in most cases found impracti- 
 cable. And so, in the case of misdemeanors, it is now the usual 
 practice for any judge of the court of king's bench, upon certif- 
 icate of an indictment found, to award a writ of capias immedi- 
 ately, in order to bring in the defendant. But if he absconds, 
 and it is thought proper to pursue him to an outlawry, then a 
 greater exactness is necessary. For, in such case, after the 
 several writs have issued in a regular number, according to the 
 nature of the respective crimes, without any effect, the offender 
 shall be put in the exigent in order to his outlawry : that is, he 
 shall be exacted, proclaimed, or required to surrender, at five 
 county courts ; and if he be returned quinto exactus, and does 
 not appear at the fifth exaction or requisition, then he is adjudged 
 to be outlawed, or put out of the protection of the law : so that 
 he is incapable of taking the benefit of it in any respect, eithei 
 by bringing actions or otherwise. 
 
 The punishment for outlawries upon indictments for misde- 
 meanors, is the same as for outlawries upon civil actions (of 
 which, and the previous process by writs of capias, exigi facias, 
 and proclamation, we spoke in the preceding book) ; viz., for- 
 feiture of goods and chattels. But an outlawry in treason or 
 felony amounts to a conviction and attainder of the offence 
 charged in the indictment, as much as if the offender had been 
 
OF PROCESS UPON AN INDICTMENT. 1013 
 
 found guilty by his country. His life is however still under the 
 protection of the law, as hath formerly been observed : so that 
 though anciently an outlawed felon was said to have caput lupi- 
 num, and might be knocked on the head like a wolf, by any one 
 that should meet him ; because, having renounced all law, he 
 was to be dealt with as in a state of nature, when every one that 
 should find him might slay him : yet now, to avoid such inhu- 
 manity, it is holden that no man is entitled to kill him wantonly 
 or wilfully : but in so doing is guilty of murder, unless it hap- 
 pens in the endeavor to apprehend him. For any person may 
 arrest an outlaw on a criminal prosecution, either of his own 
 head, or by writ or warrant of capias utlagatum, in order to bring 
 him to execution. But such outlawry may be frequently reversed 
 by writ of error : the proceedings therein being (as it is fit they 
 should be) exceedingly nice and circumstantial ; and, if any sin- 
 gle minute point be omitted or misconducted, the whole outlawry 
 is illegal, and may be reversed : upon which reversal the party 
 accused is admitted to plead to, and defend himself against, the 
 .indictment' 
 
 Thus much for process to bring in the offender after indict- 
 ment found ; during which stage of the prosecution it is, that 
 writs of certiorari facias are usually had, though they may be had 
 at any time before trial, to certify and remove the indictment, 
 with all the proceedings thereon, from any inferior court of crim- 
 inal jurisdiction into the court of king's bench ; which is the 
 sovereign ordinary court of justice in causes criminal. And this 
 is frequently done for one of these four purposes ; either, i. To 
 consider and determine the validity of appeals or indictments 
 and the proceedings thereon ; and to quash or confirm them as 
 there is cause : or, 2. Where it is surmised that a partial or in- 
 sufficient trial will probably be had in the court below, the in- 
 dictment is removed, in order to have the prisoner or defendant 
 tried at the bar of the court of king's bench, or before the jus- 
 tices of nisi prius ; or, 3. It is so removed, in order to plead the 
 king's pardon there : or, 4. To issue process of outlawry against 
 
 ' Outlawry, in criminal cases, has generally been abolished in this country j 
 though, in some States, judgment of outlawry may be rendered in cases of 
 trea.son. Practically, however, it may be said to be entirely unknown. 
 
 Provisions in regard to the issue of process after indictment, and in re- 
 ference 'o writs of certiorari, will be found in the statute-books of the several 
 States. 
 
IOI4 ARRAIGNMENT AND ITS INCIDENTS. 
 
 the offender, in those counties or places where the process ol 
 the inferior judges will not reach him. Such writ of certiorari, 
 when issued and delivered to the inferior court for removing any 
 record or other proceeding, as well upon indictment as otherwise, 
 supersedes the jurisdiction of such inferior court, and makes all 
 subsequent proceedings therein entirely erroneous and illegal ; 
 unless the court of king's bench remands the record to the court 
 below, to be there tried and determined. A certiorari may be 
 granted at the instance of either the prosecutor or the defend- 
 ant : the former as a matter of right, the latter as a matter of 
 discretion ; and therefore it is seldom granted to remove indict- 
 ments from the justices of gaol-delivery, or after issue joined or 
 confession of the fact in any of the courts below. 
 
 CHAPTER XXIII. 
 
 [BL. COMM. — BOOK IV. CH. XXV.] 
 
 Of Arraignment and its Incidents. 
 
 When the offender either appears voluntarily to an indict- 
 ment, or was before in custody, or is brought in upon criminal 
 process to answer it in the proper court, he is immediately to be 
 arraigned thereon ; which is the fifth stage of criminal prosecu- 
 tion. 
 
 To arraign, is nothing else but to call the prisoner to the bar 
 of the court, to answer the matter charged upon him in the in- 
 dictment. The prisoner is to be called to the bar by his name ; 
 and it is laid down in our ancient books, that, though under an 
 indictment of the highest nature, he must be brought to the bar 
 without irons, or any manner of shackles or bonds ; unless there 
 be evident danger of an escape, and then he may be secured with 
 irons. But yet in Layer's case, a.d. i 722, a difference was taken 
 between the time of arraignment and the time of trial ; and ac- 
 cordingly the prisoner stood at the bar in chains during the time 
 of his arraignment. 
 
ARRAIGNMENT AND ITS INCIDENTS. 1015 
 
 When he is brought to the bar, he is called upon by name to 
 hold up his hand : which, though it may seem a trifling circum- 
 stance, yet is of this importance, that by the holding up of his 
 hand constat de persona, and he owns himself to be of that name 
 by which he is called. However, it is not an indispensable cere- 
 mony ; for, being calculated merely for the purpose of identify- 
 ing the person, any other acknowledgment will answer the pur- 
 pose as well; therefore, if the prisoner obstinately and contemp- 
 tuously refuses to hold up his hand, but confesses he is the per- 
 son named, it is fully sufficient. 
 
 Then the indictment is to be read to him distinctly in the 
 English tongue (which was law, even while all other proceedings 
 were in Latin), that he may fully understand his charge. After 
 which it is to be demanded of him, whether he be guilty of the 
 crime whereof he stands indicted, or not guilty. 
 
 When a criminal is arraigned, he either stands mute, or con- 
 fesses the fact ; which circumstances we may call incidents to 
 arraignment : or else he pleads to the indictment, which is to 
 • be considered as the next stage of proceedings. But, first, let us 
 observe these incidents to the arraignment, of standing mute, or 
 confession. 
 
 I. Regularly a prisoner is said to stand mute, when, being" 
 arraigned for treason, or felony, he either, i. Makes no answer 
 at all ; or, 2. Answers foreign to the purpose, or with such mat- 
 ter as is not allowable ; and will not answer otherwise : or, 3. 
 Upon having pleaded not guilty, refuses to put himself upon the 
 country. If he says nothing, the court ought ex officio to im- 
 panel a jury to inquire whether he stands obstinately mute, or 
 whether he be dumb ex visitatione Dei. If the latter appears to 
 be the case, the judges of the court (who are to be of counsel for 
 the prisoner, and to see that he hath law and justice) shall pro- 
 ceed to the trial, and examine all points as if he had pleaded not 
 guilty. But whether judgment of death can be given against 
 such a prisoner who hath never pleaded, and can say nothing in 
 arrest of judgment, is a point yet undetermined. 
 
 If he be found to be obstinately mute (which a prisoner hath 
 been held to be that hath cut out his own tongue), then, if it be 
 on an indictment of high treason, it hath long been clearly set- 
 tled, that standing mute is an equivalent to a conviction, and he 
 shall receive the same judgment and execution. And as in this 
 
ioi6 ARRAIGNMENT AND ITS INCIDENTS. 
 
 the highest crime, so also in the lowest species of felony, viz., in 
 petit larceny, and in all misdemeanors, standing mute hath al- 
 ways been equivalent to conviction. But upon indictments for 
 other felonies, or petit treason, the prisoner was not, by the 
 ancient law, looked upon as convicted, so as to receive judg- 
 ment for the felony ; but should, for his obstinacy, have received 
 the terrible sentence of penance, or peine (which was proba- 
 bly nothing more than a corrupted abbreviation of prisone) 
 forte et dtire. 
 
 Before this was pronounced the prisoner had not only irina 
 admonitio, but also a respite for a few hours, and the sentence 
 was distinctly read to him, that he might Icnow his danger ; and, 
 after all, if he continued obstinate, and his offence was clergyable, 
 he had the benefit of his clergy allowed him, even though he was 
 too stubborn to pray it. Thus tender was the law of inflicting 
 this dreadful punishment ; but if no other means could prevail, 
 and the prisoner (when charged with a capital felony) continued 
 stubbornly mute, the judgment was then given against him with- 
 out, any distinction of sex or degree. 
 
 The English judgment of penance for standing mute was 
 as follows : that the prisoner be remanded to the prison from 
 whence he came ; and put into a low, dark chamber ; and there be 
 laid on his back, on the bare floor, naked, unless where decency 
 forbids ; that there be placed upon his body as great a weight of 
 iron as he could bear, and more ; that he have no sustenance, 
 save only, on the first day, three morsels of the worst bread ; and 
 on the second day, three draughts of standing water, that should 
 be nearest to tiie prison-door ; and in this situation this should be 
 alternately his daily diet till he died or (as anciently the judg- 
 ment ran) till he answered. 
 
 The uncertainty of its original, the doubts that were conceived 
 ot its legality, and the repugnance of its theory (for it was rarely 
 carried into practice) to the humanity of the laws of England, all 
 concurred to require a legislative abolition of this cruel process, 
 and a restitution of the ancient common law : whereby the stand- 
 ing mute in felony, as well as in treason and in trespass, amount- 
 ed to a confession of the charge. And very lately to the honor 
 of our laws, it hath been enacted by statute 12 Geo. III., ch. 20, 
 that every person who being arraigned for felony and piracy, 
 shall stand mute or not answer directly to the offence, shall be 
 
OF PLEA, AND ISSUE. 1017 
 
 convicted of the same, and the same judgment and execution 
 (with all their consequences in every respect) shall be thereupon 
 awarded, as if the person had been convicted by verdict or con- 
 fession of the crime. And thus much for the demeanor of a 
 prisoner upon his arraignment, by standing mute ; which now, 
 in all cases, amounts to a constructive confession.^ 
 
 II. The other incident to arraignments, exclusive of the plea, 
 is the prisoner's actual confession of the indictment. Upon a 
 simple and plain confession, the court hath nothing to do but to 
 award judgment : but it is usually very backward in receiving and 
 recording such confession, out of tenderness to the life of the 
 subject ; and will generally advise the prisoner to retract it, and 
 plead to the indictment. 
 
 CHAPTER XXIV. 
 
 [bL. COMM. BOOK IV. CH. XXVI.] 
 
 Of Plea, and Issue. 
 
 We are now to consider the plea of the prisoner, or defensive 
 matter alleged by him on his arraignment, if he does not con- 
 fess or stand mute. This is either, i. A plea to the jurisdiction ; 
 2. A demurrer ; 3. A plea in abatement; 4. A special plea in 
 bar ; or, 5. The general issue. 
 
 I. A plea to th&jurisdiction, is where an indictment is taken 
 before a court that hath no cognizance of the offence ; as if a 
 man be indicted for a rape at the sheriff's tourn, or for treason 
 at the quarter sessions ; in these, or similar cases, he may except 
 to the jurisdiction of the court, without answering at all to the 
 crime alleged. 
 
 ' But the practice has been changed by the statute 7 & 8 Geo. IV., ch 
 28 ; and now, whenever the prisoner, on his arraignment for any treason, fel- 
 ony, piracy, or misdemeanor, stands mute of malice, or will not answer 
 directly to the charge, a plea of not guilty is entered for him, by order of the 
 Court, and the plea so entered has the same effect as if the prisoner had ac- 
 tually pleaded it. This is also the general practice in the States of this 
 country. 
 
ioi8 ■ OF PLEA, AND ISSUE. 
 
 II. A demurrer to the indictment. -This is ina tent to crim 
 inal cases, as well as civil, when the fact alleged is r.llowed to be 
 true, but the prisoner joins issue upon some point of law in the 
 indictment, by which he insists that the fact, as stated is no 
 felony, treason, or whatever the crimie is alleged to be. Thus, 
 for instance, if a man were indicted for feloniously stealing a 
 greyhound ; which is an animal in which no valuable property 
 can be had, and therefore it is not felony, but only a civil tres- 
 pass, to steal it ; in this case the party indicted may demur to the 
 indictment ; denying it to be felony, though he confesses the act 
 of taking it. Some have held that if, on demurrer, the point of 
 law be adjudged against the prisoner, he shall have judgment and 
 execution, as if convicted by verdict. But this is denied by 
 others, who hold, that in such case he shall be directed and re- 
 ceived to plead the general issue, not guilty, after a demurrer 
 determined against him. Which appears the more reason- 
 able, because it is clear, that if the prisoner freely discovers the 
 fact in court, and refers it to the opinion of the court, whether it 
 be felony or no, and upon the fact thus shown it appears to be 
 felony ; the court will not record the confession, but admit him 
 afterwards to plead not guilty. And this seems to be a rase of 
 the same nature, being for the most part a mistake in point of 
 law, and in the conduct of his pleading ; and though a man by 
 mispleading may in some cases lose his property, yet the law 
 will not suffer him by such niceties to lose his life. However, 
 upon this doubt, demurrers to indictments are seldom used : since 
 the same advantages may be taken upon a plea of not guilty ; or 
 afterwards in arrest of judgment, when the verdict has estab- 
 lished the fact. 
 
 III. A plea in abatement is principally for a misnomer, a 
 wrong name, or false addition to the prisoner. As, if J^ames 
 Allen, gentleman, is indicted by the name of J^ohn Allen, esquire, 
 he may plead that he has the name of James, and not of John ; 
 and that he is a gentleman, and not an esquire. And, if either 
 fact is found by a jury, then the indictment shall be abated, as 
 writs or declarations may be in civil actions ; of which we spoke 
 at large in the preceding book. But, in the end, there is little 
 advantage accruing to the prisoner by means of these dilatory 
 pleas ; because, if the exception be allowed, a new bill of indict 
 ment may be framed, according to what the prisoner in his plea 
 
OF PLEA, AND ISSUE. 1019 
 
 avers to be his true name and addition.* For it is a rule, upon 
 all pleas in abatement, that he, who takes advantage of a flaw, 
 must at the same time show how it may be amended. Let us 
 therefore next consider a more substantial kind of plea, viz. : 
 
 IV. Special pleas in bar ; which go to the merits of the in- 
 dictment, and give a reason why the prisoner ought not to answer 
 it at all, nor put himself upon his trial for the crime alleged. 
 These are of four kinds : a former acquittal, a former conviction, 
 a former attainder, or a pardon. 
 
 1. First, the plea of autrefoits acquit., or a former acquittal, is 
 grounded on this universal maxim of the common law of England, 
 that no man is to be brought into jeopardy of his life more than 
 once for the same offence. And hence it is allowed as a conse- 
 quence, that when a man is once fairly found not guilty upon 
 any indictment, or other prosecution, before any court having 
 competent jurisdiction of the offence, he may plead such acquittal 
 in bar of any subsequent accusation for the same crime.'' 
 
 2. Secondly, the plea of autrefoits convict, or a former con- 
 viction for the same identical crime, though no judgment was 
 ever given, or perhaps will be (being suspended by the benefit 
 of clergy or other causes), is a good plea in bar to an indictment' 
 And this depends upon the same principle as the former, that 
 no man ought to be twice brought in danger of his life for one 
 and the same crime. Hereupon it has been held, that a con- 
 viction of manslaughter on an indictment, is a bar in an indict- 
 ment of murder ; for the fact prosecuted is the same in both, 
 though the offences differ in coloring and in degree. It is to 
 be observed, that the pleas of autrefoits acquit and autrefoits cofp- 
 vict, or a former acquittal, and former conviction, must be upon 
 
 ' Such defects are now amendable by statute 14 & 15 Vict., ch. 100. A 
 similar change in the law has generally been made by statute in the 
 United States, or it has been provided that such defects in an indictment 
 shall be deemed of no importance. Thus, in New York it is provided that 
 "neither a departure from the form or mode prescribed by the Code, in respect 
 10 any pleadings or proceedings, nor an error or mistake therein, renders it 
 invalid, unless it have actually prejudiced the defendant, or tend to his preju- 
 dice, in respect to a substantial right." (Code Grim. Pro. § 684 ; see Id. g 293.) 
 
 'See Canter v. People, i Abb. Dec. 305 ; People v. Ward, 15 Wend. 231 ; 
 People V. Warren, i Parker, 338 ; Comm. v. Jioby, 12 Pick. 496. 
 
 *See Shepherd v. People, 25 N. Y. 406; People v. Cramer, 5 Parker, 171 ; 
 People V. McCloskey, 5 Id. 57 ; U. S. v. Wilson, 7 Pet. 150. 
 
I020 OF PLEA, AND ISSUE. 
 
 a prosecution for the same identical act and crime. But the 
 case is otherwise, in 
 
 3. Thirdly, the plea of autrefoits attaint, or a former attainder ; 
 which is a good plea in bar, whether it be for the same or any 
 other felony.* For wherever a man is attainted of felony, by 
 judgment of death either upon a verdict or confession, by out- 
 lawry or heretofore by abjuration ; he may plead such attainder 
 in bar to any subsequent indictment for the same or for any other 
 felony. And this because, generally, such proceeding on a second 
 prosecution cannot be to any purpose : for the prisoner is dead 
 in law by the first attainder, his blood is already corrupted, and 
 he hath forfeited all that he had : so that it is absurd and super- 
 fluous to endeavor to attaint him a second time. But to this 
 general rule, however, as to all others, there are some exceptions ; 
 wherein, cessante ratione, cessat et ipsa lex ; as where the former 
 attainder is reversed for error, for then it is the same as if it had 
 never been. 
 
 4. Lastly, a pardon may be pleaded in bar ; as at once de- 
 stroying the end and purpose of the indictment, by remitting that 
 punishment which the prosecution is calculated to inflict. There 
 is one advantage that attends pleading a pardon in bar, or in 
 arrest of judgment, before sentence is past ; which gives it by 
 much the preference to pleading it after sentence or attainder. 
 This is, that by stopping the judgment it stops the attainder, 
 and prevents the corruption of the blood ; which, when once 
 corrupted by attainder, cannot afterwards be restored, otherwise 
 than by act of parliament. But as the title of pardons is appli- 
 cable to other stages of prosecution ; and they have their respec- 
 tive force and efficacy, as well after as before conviction, out- 
 lawry, or attainder ; I shall therefore reserve the more minute 
 consideration of them, till I have gone through every other title 
 except only that of execution. 
 
 Before I conclude this head of special pleas in bar, it will be 
 
 necessary once more to observe, that though in civil actions 
 
 when a man has his election what plea in bar to make, he is 
 
 concluded by that plea, and cannot resort to another if that be 
 
 determined against him (as if, on action of debt, the defendant 
 
 pleads a general release, and no such release can be proved, he 
 
 cannot afterwards plead the general issue, nil debet, as he might 
 
 * Attainder for crime is how abolished. (33 & 34 Vict., ch. 23.) In thii 
 country, no such plea as autrefoits attaint is known. 
 
OF PLEA, AND ISSUE. 1021 
 
 at first . for he has made his election what plea to abide by, and 
 it was his own folly to choose a rotten defence) ; though, I say, 
 this strictness is observed in civil actions, quia interest reipub- 
 lic(B ut sit finis litium : yet in criminal prosecutions infavorem 
 vita, when a prisoner's plea in bar is found against him upon 
 issue tried by a jury, or adjudged against him in point of law by 
 the court ; still he shall not be concluded or convicted thereon, 
 but shall have judgment of respondeat ouster, and may plead over 
 to the felony the general issue, not guilty. For the law allows 
 many pleas, by which a prisoner may escape death ; but only 
 one plea, in consequence whereof it can be inflicted ; viz. on the 
 general issup, after an impartial examination and decision of the 
 fact, by the unanimous verdict of a jury. It remains therefore 
 that I consider, 
 
 V. The general issue, or plea of not guilty, upon which plea 
 alone the prisoner can receive his final judgment of death. In 
 case of an indictment of felony or treason, there can be no 
 special justification put in by way of plea. As, on an indictment 
 for murder, a man cannot plead that it was in his own defense 
 against a robber on the highway, or a burglar ; but he must plead 
 the general issue, not guilty, and give this special matter in evi- 
 dence. For (besides that these pleas do in effect amount to the 
 general issue ; since, if true, the prisoner is most clearly not 
 guilty) as the facts in treason are laid to be done proditorie et 
 contra ligeantice suce debittim, and, in felony, that the killing was 
 Aon.& felonice ; these charges, of a traitorous or felonious intent, 
 are the points and very gist of the indictment, and must be 
 answered directly, by the general negative, not guilty ; and the 
 jury upon the evidence will take notice of any defensive matter, 
 and give their verdict accordingly, as effectually as if it were, or 
 could be, specially pleaded. So that this is, upon all accounts, 
 the most advantageous plea for the prisoner. 
 
 When the prisoner has put himself upon his trial, then they 
 proceed, as soon as conveniently may be, to the trial ; the manner 
 of which will be considered at large in the next chapter. 
 
1022 OF TRIAL AND CONVICTION. 
 
 CHAPTER XXV. 
 
 [BL. COMM. BOOK IV. CH. XXVII.] 
 
 Of Trial and Conviction. 
 
 The se\ eral methods of trial and conviction of offenders estab- 
 lished by the laws of England, were formerly more numerous 
 than at present, through the superstition of our Saxon ancestors : 
 who, like other Northern nations, were extremely addicted to 
 divination : a character which Tacitus observes of the ancient 
 Germans. They therefore invented a considerable number of 
 methods of purgation or trial, to preserve innocence from the 
 danger of false witnesses, and in consequence of a notion that 
 God would always interpose miraculously to vindicate the guilt- 
 less. 
 
 I. The most ancient species of trial was that by ordeal. This 
 was of two sorts, either ^r^-ordeal, or water-oxAos^ ; \he former 
 being confined to persons of higher rank, the latter to the com- 
 mon people. Fire-ordeal was performed either by taking up in 
 the hand, unhurt, a piece of red-hot iron, of one, two, or three 
 pounds weight ; or else by walking barefoot, and blindfold, over 
 nine red-hot ploughshares, laid lengthwise at unequal distances : 
 and if the party escaped being hurt, he was adjudged innocent; 
 but if it happened otherwise, as without collusion it usually did, 
 he was then condemned as guilty. 
 
 Water-ordeal was performed, either by plunging the bare 
 arm up to the elbow in boiling water, and escaping unhurt there- 
 by : or by casting the person suspected into a river or pond of 
 cold water ; and, if he floated therein without any action of 
 swimming, it was deemed an evidence of his guilt ; but, if he 
 sunk, he was acquitted. 
 
 II. Another species of purgation, somewhat similar to the 
 former, but probably sprung from a presumptuous abuse of 
 revelation in the ages of dark superstition, was the corsned or 
 morsel of execration : being a piece of cheese or bread, of about 
 an ounce in weight, which was consecrated with a form of exor- 
 
OF TRIAL AND CONVICTION. 1023 
 
 cism ; desiring of the Almighty that it might cause convulsions 
 and paleness, and find no passage if the man was really guilty ; 
 but might turn to health and nourishment, if he was innocent. 
 
 These two antiquated methods of trial were principally in use 
 among our Saxon ancestors. The next, owes its introduction 
 among us to the princes of the Norman line. And that is, 
 
 III. The trial by battel, duel, or single combat ; which was 
 another species of presumptuous appeal to Providence, under an 
 expectation that Heaven would unquestionably give the victory 
 to the innocent or injured party. 
 
 IV. The trial _by jury, or the country, per patriam, is also 
 that trial by the peers of every Englishman, which, as the grand 
 bulwark of his liberties, is secured to him by the great charter : 
 " nullus liber homo capiatur, vel imprisonetur, aut exuletur, aut 
 aliquo modo destriiatur, nisi per legale judicium parium suorum, 
 vel per legem terrce." 
 
 What was said of juries in general, and the trial thereby, in 
 civil cases, will greatly shorten our present remarks, with regard 
 to the trial of criminal suits ; indictments and informations : 
 which trial I shall consider in the same method that I did the 
 former ; by following the order and course of the proceedings 
 themselves, as the most clear and perspicuous way of treating it. 
 
 When, therefore, a prisoner on his arraignment has pleaded 
 not guilty, and for his trial hath put himself upon the country, 
 which country the jury are, the sheriff of the county must return 
 a panel of jurors, liberos et legales homines, de vicineto ; that is, 
 freeholders, without just exception, and of the visneox neighbor- 
 hood ; which is interpreted to be of the county where the fact is 
 committed. If the proceedings are before the court of king's 
 bench, there is time allowed, between the assignment and the 
 trial, for a jury to be impanelled by a writ of venire facias to 
 the sheriff, as in civil causes ; and the trial in case of a misde- 
 meanor is had at 7iisi prius, unless it be of such consequence as 
 to merit a trial at bar ; which is always invariably had when the 
 prisoner is tried for any capital offence. But before commis- 
 sioners of oyer and terminer and jail-delivery, the sheriff, by 
 virtue of a general precept directed to him beforehand, returns 
 to the court a panel of forty-eight jurors, to try all felons that may 
 be called upon their trial at that session ; and therefore it is there 
 usual to try all felons immediately, or soon after theii arraign- 
 
I024 OF TRIAL AND CONVICTION. 
 
 ment. But it is not customary, nor agreeable to the general 
 course of proceedings (unless by consent of parties, or where the 
 defendant is actually in jail), to try persons indicted of smaller 
 misdemeanors at the same court in which they have pleaded not 
 guilty., or traversed the indictment. But they usually give secu- 
 rity to the court, to appear at the next assizes or session, and 
 then and there to try the traverse, giving notice to the prosecu- 
 tor of the same. 
 
 When the trial is called on, the jurors are to be sworn as they 
 appear, to the number of twelve, unless they are challenged by 
 the party. 
 
 Challenges may here be made, either on the part of the king, 
 or on that of the prisoner ; and either to the whole array, or to 
 the separate polls, for the very same reasons that they may be . 
 made in civil causes. For it is here at least as necessary, as 
 there, that the sheriff or returning officer be totally indifferent ; 
 and that the particular jurors should h^ omni exceptione majores ; 
 not liable to objection either propter honoris respcctum, propter 
 defectum, propter affecttim, or propter delictum. Challenges upon 
 any of the foregoing accounts are styled challenges /tir cause; 
 which may be without stint in both criminal and civil tiials. 
 But in criminal cases, or at least in capital ones, there is in fa- 
 vorcm vitcB, allowed to the prisoner an arbitrary and capricious 
 species of challenge to a certain number of jurors, without show- 
 ing any cause at all ; which is called a peremptory challenge : 
 a provision full of that tenderness and humanity to prisoners, for 
 which our English laws are justly famous. This is grounded on 
 two reasons, i. As every one must be sensible, what sudden 
 impressions and unaccountable prejudices we are apt to conceive 
 upon the bare looks and gestures of another ; and how necessary 
 it is, that a prisoner (when put to defend his life) should have a 
 good opinion of his jury, the want of which might totally discon- 
 cert him ; the law wills not that he should be tried by any one 
 man against whom he has conceived a prejudice, even without 
 being able to assign a reason for such his dislike. 2. Because 
 upon challenges for cause shown, if the reasons assigned prove 
 insufficient to set aside the juror, perhaps the bare questioning 
 his indifference may sometimes provoke a resentment ; to pre- 
 vent all ill consequences from which, the prisoner is still at lib- 
 erty, if he pleases, peremptorily to set him aside. 
 
OF TRIAL AND CONVICTION. 1025 
 
 This privilege, of peremptory challenges, though granted to 
 the prisoner, is denied to the king by the statute 33 Edw. i. 
 Stat. 4, which enacts, that the king shall challenge no jurors with- 
 out assigning a cause certain to be tried and approved by the 
 court. However, it is held that the king need not assign his 
 cause of challenge, till all the panel is gone through, and unless 
 there cannot be a full jury without the person so challenged. 
 And then, and not sooner, the king's counsel must show the 
 cause : otherwise the juror shall be sworn. 
 
 The peremptory challenges of the prisoner must, however, 
 have some reasong.ble boundary ; otherwise he might never be 
 tried. This reasonable boundary is settled by the common law 
 to be the number of thirty-five ; that is, one under the number 
 of three full juries. For the law judges that five-and-thirty are 
 fully sufficient to allow the most timorous man to challenge 
 through mere caprice ; and that he who peremptorily challenges 
 a greater number, or three full juries, has no intention to be tried 
 at all. 
 
 And so the law stands at this day with regard to treason 
 of any kind. But by statute 22 Hen. VHL, ch. 14, no person 
 arraigned for felony, can be admitted to make any more than 
 twenty peremptory challenges. 
 
 If, by reason of challenges or the default of the jurors, a suf- 
 ficient number cannot be had of the original panel, a tales may 
 be awarded as in civil causes till the number of twelve is sworn, 
 "well and truly to try, and true deliverance make ; between our 
 sovereign lord the king, and the prisoner whom they have in 
 charge ; and a true verdict to give, according to the evidence."' 
 
 When the jury is sworn, if it be a cause of any consequence, 
 the indictment is usually opened, and the evidence marshalled, 
 examined, and enforced by the counsel for the crown, or prose- 
 cution. But it is a settled rule at common law, that no counsel 
 shall be allowed a prisoner upon his trial, upon the general issue 
 in any capital crime, unless some point of law shall arise proper 
 to be debated.' A rule, which (however it may be palliated 
 
 ' The practice in regard to the challenging of jurors is regulated, in this 
 wuntry, by the statutes of the several States and by acts of Congress. The 
 osual grounds of challenge are the same as those mentioned in the text. 
 
 ' This rule has been changed, and counsel is now allowed in all cases. 
 This is also uniformly the rule in the United States. 
 
 66 
 
t026 OF TRIAL AND CONVICTION. 
 
 under cover of that noble declaration of the law, when rightly 
 understood, that the judge shall be counsel for the prisoner ; that 
 is, shall see that the proceedings against him are legal and strictly 
 regular) seems to be not at all of a piece with the rest of the 
 humane treatment of prisoners by the English law. And the 
 judges themselves are so sensible of this defect, that they never 
 scruple to allow a prisoner counsel to instruct him what questions 
 to ask, or even to ask questions for him, with respect to matters 
 of fact : for as to matters of law, arising on the trial, they are 
 entitled to the assistance of counsel. 
 
 The doctrine of evidence upon pleas of the crown, is, in most 
 respects, the same as that upon civil actions. There are, how- 
 ever, a few leading points, wherein by several statutes, and 
 resolutions, a difference is made between civil and criminal evi- 
 dence. 
 
 First, in all cases of high treason, and misprision of treason, 
 by statutes i Edw. VI., ch. 12, and 5 and 6 Edw. 6., ch. 11, two 
 lawful witnesses are required to convict a prisoner ; unless he 
 shall willingly and without violence confess the same. By statute 
 7 Wm. III., ch. 3, in prosecution for those treasons to which that 
 act extends, the same rule (of requiring two witnesses) is again 
 enforced ; with this addition, that the confession of the prisoner, 
 which shall countervail the necessity of such proof, must be in 
 open courts In the construction of which act it hath been holden 
 that a confession of the prisoner, taken out of court, before a 
 magistrate or person having competent authority to take it, and 
 proved by two witnesses, is sufficient to convict him of treason. 
 But hasty unguarded confessions, made to persons having no 
 such authority, ought not to be admitted as evidence under this 
 statute. And indeed, even in cases of felony at the common 
 law, they are the weakest and most suspicious of all testimony ; 
 ever liable to be obtained by artifice, false hopes, promises of 
 favor, or menaces ; seldom remembered accurately, or reported 
 with due precision ; and incapable in their nature of being dis- 
 proved by other negative evidence. By the same statute 7 Wm. 
 III., it is declared, that both witnesses must be to the same overt 
 
 ^ It is provided by the United Constitution, that "no person shall be con- 
 victed of treason, unless on the testimony of two witnesses, to the same 
 overt act, or on confession in open court." (Art. 3, § 3.) Similar provisions 
 ire found in the State constitutions. 
 
OF TRIAL AND CONVICTION. 1027 
 
 act of treason, or one to one overt act, and the other to another 
 overt act, of the same species of treason, and not of distinct heads 
 or kinds ; and no evidence shall be admitted to prove any overt 
 act not expressly laid in the indictment. But in almost every 
 other accusation one positive witness is sufficient. Baron Mon- 
 tesquieu lays it down for a rule that those laws which condemn a 
 man to death in any case on the deposition of a single witness, 
 are fatal to liberty ; and he adds this reason, that the witness who 
 affirms, and the accused who denies, make an equal balance ; 
 there is necessity therefore to call in a third man to incline the 
 scale. But this seams to be carrying matters too far : for there 
 are some crimes, in which the very privacy of their nature ex- 
 cludes the possibility of having more than one witness ; must 
 these therefore escape unpunished .' Neither indeed is the bare 
 denial of the person accused equivalent to the positive oath of a 
 disinterested witness. In cases of indictments for perjury, this 
 doctrine is better founded ; and there our law adopts it : for one 
 witness is not allowed to convict a man for perjury ; because then 
 there is only one oath against another. In cases of treason also 
 there is the accused's oath of allegiance, to counterpoise the in- 
 formation of a single witness ; and that may perhaps be one 
 reason why the law requires a double testimony to convict him : 
 though the principal reason, undoubtedly, is to secure the sub- \ 
 ject from being sacrificed to fictitious conspiracies, which have"^ 
 been the engines of profligate and crafty politicians in all ages. 
 
 Secondly, though from the reversal of Colonel Sidney's at- 
 tainder by act of parliament in 1689 it may be collected that the 
 mere similitude of handwriting in two papers shown to a jury, 
 without other concurrent testimony, is no evidence that both 
 were written by the same person ; yet undoubtedly the testimony 
 of witnesses, well acquainted with the party's hand, that they 
 believe the paper in question to have been written by him, is evi- 
 dence to be left to a jury. 
 
 Thirdly, all presumptive evidence of felony should be ad- 
 mitted cautiously ; for the law holds, that it is better that ten 
 guilty persons escape, than that one innocent suffer. And Sir 
 Matthew Hale in particular lays down two rules most prudent 
 and necessary to be observed : i. Never to convict a man for 
 stealing the goods of a person unknown, merely because he will 
 give no account how he came by them, unless an actual felony 
 
I028 OF TRIAL AND CONVICTION. 
 
 te proved of such goods ; and 2. Never to convict any person of 
 murder and manslaughter, till at least the body be found dead ; 
 on account of two instances he mentions, where persons 
 were executed for the murder of others, who were then alive, but 
 missing.* 
 
 Lastly, it was an ancient and commonly received practice, 
 that, as counsel was not allowed to any prisoner accused of a 
 capital crime, so neither should he be suffered to exculpate him- 
 
 ♦ " Evidence may be either direct and positive, or presumptive and circum- 
 stantial. A presumption of any fact is an inferring of that fact from other 
 facts that are known ; it is an act of reasoning. A fact, hovirever, must not 
 be inferred without premises that will warrant the inference, for the law holds 
 that it is better that ten guilty persons escape, than that one innocent person 
 suffer. If, however, no fact could thus be ascertained by inference, in a 
 court of law, very few offenders would be brought to punishment. In draw- 
 ing an inference or conclusion from facts proved, regard must always be had 
 to the nature of the particular case, and the facility that appears to be af- 
 forded either of explanation or contradiction. No person is to be required to 
 explain or contradict, until enough has been proved to warrant a reasonable 
 and just conclusion against him in the absence of explanation or contradic- 
 tion ; but when such proof has been given, and the nature of the case is such 
 as to admit of explanation or contradiction and the accused offers none, 
 human reason cannot do otherwise than adopt the conclusion to which the 
 proof tends. Such is in brief the nature of presumptive evidence, and the 
 reason for admitting it. And there is scarcely a criminal case, from the 
 highest down to the lowest, in which courts of justice do not act upon the 
 principle of giving weight to presumptions ; for as it seldom happens that 
 absolute certainty can be obtained in human affairs, therefore reason and 
 public utility require that judges and all mankind, in forming their opinions 
 of the truth of facts, should be regulated by a preponderance of probabilities. 
 Accordingly, in the highest crime known to the law, viz., treason, our courts 
 act upon presumption. On proof of rebellion or the endeavor to excite re- 
 bellion, they presume an attempt to kill the sovereign. In homicide, upon 
 proof of the fact of killing, they presume the malice necessary to constitute 
 murder, and put it on the prisoner, by extracting facts in cross-examination 
 or by direct testimony, to lower his offence to manslaughter or justifiable 
 homicide. In birrglary, highway robbery, or simple larceny, if a person is 
 found in possession of the goods recently after the crime has been committed, 
 our law presumes the possessor guilty, unless he can account for the posses- 
 sion. In the case of a libel, which is charged to be written with a particular 
 intent, if the libel is calculated to produce the effect charged to be intended, 
 tlie intent will be presumed. We must, as reasonable beings, act on pre 
 sumptive proof, or leave the worst crimes unpunished ; though where pre- 
 sumption is attempted to be raised as to the corpus delicti — the commission 
 of the substantive act charged — such presumption ought to be strong and 
 cogent." (Broom and H. Comm., iv. 445 ; but see Stokes v. People, 53 N. Y 
 164; State V. Hodge, 50 N. H. 510.) 
 
OF TRIAL AND CONVICTION. 1029 
 
 self by the testimony of any witnesses. At length by the statute 
 7 Wm. III. ch. 3, the same measure of justice was established 
 throughout all the realm, in cases of treason within the act : and it 
 was afterwards declared by statute i Ann. stat. 2, ch. 9, that in 
 all cases of treason and felony all witnesses for the prisoner 
 should be examined upon oath, in like manner as the witnesses 
 against him.' 
 
 'Other important rules of evidence applicable in criminal cases are the 
 following ; — 
 
 " I. No proof is admissible which in its very nature indicates the exist- 
 ence of some better proof ; thus hearsay evidence is not admissible. This 
 is the objection perhapg most commonly taken to the reception of evidence 
 at a trial for any ordinary offence ; statements of third persons made in the 
 absence of the prisoner, being spoken to as evidence against him, when, in 
 fact, such third persons ought to be put into the witness box to testify. 
 Some few exceptions only to this rule which excludes hearsay evidence, need 
 here be mentioned : (a) Upon a trial for felonious homicide, the declarations 
 of the deceased, made when he believed himself to be in a dying state and 
 past hope of recovery, are admissible, the dealh of the deceased being the 
 subject of the charge, and the circumstances of the death being the subject of 
 the dying declaration. (J>) An admission or confession made by the accused 
 is likewise admissible in evidence against him if freely and voluntarily made, — 
 neither induced by a threat of evil, nor by the holding out of any benefit to 
 him. [See Stephen's Digest of Evidence, (Chase's ed.) Art's. 14, 21-26.] 
 
 2. No one is competent to give evidence in a court of justice, who, by 
 reason of immaturity of years or mental affection, is unable to comprehend 
 the nature and obligation of an oath, — or who through want of religious 
 belief denies its obligation. Husband and wife cannot (by the common law) 
 testify in a criminal case for or against each other, except on a trial for 
 treason or bigamy, or unless where the very nature of the offence charged, — 
 as if it be a personal wrong done to the wife — necessitates ii qualification of 
 the rule. [Bat modern statutes have sometimes changed this rule.] 
 
 3. An irrelevant question ought not to be put, and this rule of rejecting 
 all manner of evidence in criminal prosecutions that is foreign to the point 
 in issue is founded on sound sense and common justice. The rule which 
 requires certainty in the indictment would be nugatory, if evidence irrelevant 
 to the issue raised upon it were admitted. And further, the time of the court 
 must not be uselessly occupied ; nor should the attention of the jury be in- 
 vited to inquiries immaterial— or frivolous — and foreign to the real points for 
 their decision. 
 
 4. An artifice of this sort is not permitted — to get from a witness by 
 means of a " leading question " the narrative desired, to suggest the answer 
 which would be acceptable by the very wording and framing of the question 
 The putting of leading questions, except where allowed with a view to sav- 
 ing time, and in respect of matters, the eliciting of which cannot prejudice 
 the prisoner, or by permission of the court where a witness is manifest'.j 
 hostile — is much to be deprecated." (Broom and H. Coram., iv. 447.) 
 
I030 OF THE BENEFIT OF CLERGY. 
 
 When the evidence on both sides is closed, and indeed when 
 any evidence hath been given, the jury cannot be discharged 
 (unless in cases of evident necessity) till they have given in their 
 verdict ; but are to consider of it, and deliver it in, with the same 
 forms as upon civil causes : only they cannot, in a criminal case 
 which touches life or member, give a privy verdict. But 
 the judges may adjourn while the jury are withdrawn to confer, 
 and return to receive the verdict in open court. And such pub- 
 lic or* open verdict maybe either general, guilty, or not guilty; or 
 special, setting forth all the circumstances of the case, and pray- 
 ing the judgment of the court, whether, for instance, on the 
 facts stated, it be murder, manslaughter, or no crime at all. 
 This is where they doubt the matter of law, and therefore choose 
 to leave it to the determination of the court. 
 
 If the jury therefore find the prisoner not guilty, he is then for 
 ever quit and discharged of the accusation. And upon such his 
 acquittal, or discharge for want of prosecution, he shall be 
 immediately set at large without payment of any fee to the 
 jailer. But if the jury find him guilty, he is then said to be 
 convicted of the crime whereof he stands indicted. Which con 
 viction may accrue two ways ; either by his confessing the 
 offence and pleading guilty ; or by his being found so by the 
 verdict of his country. 
 
 CHAPTER XXVI. 
 
 [bL. COMM. BOOK IV. CH. XXVIII.] 
 
 Of the Benefit of Clergy. 
 
 After trial and conviction the judgment of the ceurt 
 regularly follows, unless suspended or arrested by some interven- 
 ing circumstance : of which the principal is the benefit of clergy ; 
 a title of no small curiosity as well as use ; • and concerning 
 
 ' Benefit o£ clergy was abolished by the statute 6 & 7 Geo. IV., ch. 28. 
 The law upon this subject is, therefore, now entirely obsolete ; but this ab- 
 breviated account has been retained, on account of the historical interest of 
 the topic, and the frequent references to it in these Commentaries. 
 
OF THE BENEFIT OF CLERGY. 1031 
 
 which I shall therefore inquire : i. Into its original, and the 
 various mutations which this privilege of clergy has sustained. 2. 
 In what cases it is to be allowed. 
 
 I. Clergy, the privilegium clericale, or in common speech, 
 the benefit of clergy, had its original from the pious regard paid by 
 Christian princes to the church in its infant state ; and the ill 
 use which the popish ecclesiastics soon made of that pious 
 regard. The exemptions which they granted to the church, 
 were principally of two kinds : i. Exemption of //acifj consecrated 
 to religious duties, from criminal arrests, which was the founda- 
 tion of sanctuaries ; 2. Exemption of the persons of clergymen 
 from criminal process before the secular judge in a few par- 
 ticular cases, which was the true original and meaning of the 
 privilegium clericale. 
 
 But the clergy increasing in wealth, power, honor, number, 
 and interest, began soon to set up for themselves ; and that 
 which they obtained by her favor of the civil government, they 
 now claimed as their inherent right : and as a right of the highest 
 nature, indefeasible, 2s^A.jure divino. By their canons therefore 
 and constitutions they endeavored at, and, where they met with 
 easy princes, obtained, a vast extension of these exemptions : as 
 well in regard to the crimes themselves, of which the list became 
 quite universal ; as in regard to the persons exempted, among 
 whom were at length comprehended not only every little 
 subordinate officer belonging to the church or clergy, but even 
 many that were totally laymen. 
 
 Originally the law was held, that no man should be admitted 
 to the privilege of clergy, but such as had the habitum et tonsuram 
 clericalem. But in process of time a much wider and more com- . 
 prehensive criterion was established : every one that could 
 read (a mark of great learning in those days of ignorance and her 
 sister superstition) being accounted a clerk or clericus, and 
 allowed the benefit of clerkship, though neither initiated in holy 
 orders, nor trimmed with the clerical tonsure. But when learn- 
 ing, by means of the invention of printing, and other concurrent 
 causes, began to be more generally disseminated than formerly ; 
 and reading was no longer a competent proof of clerkship, or 
 being in holy orders ; it was found that as many laymen as 
 divines were admitted to ihe ptivilegium clericale : and therefore 
 by statute 4 Hen. VII, ch. 13, a distinction was once more drawn 
 
1032 OF THE BENEFIT OF CLERGY. 
 
 between mere lay scholars, and clerks that were really in ordefi 
 And, though it was thought reasonable still to mitigate the sever- 
 ity of the law with regard to the former, yet they were not put 
 upon the same footing with actual clergy ; being subjected to a 
 slight degree of punishment, and not allowed to claim the clerical 
 privilege more than once. Accordingly the statute directs that 
 no person once admitted to the benefit of the clergy, shall be 
 admitted thereto a second time, unless he produces his orders : 
 and in order to distinguish their persons, all laymen who are 
 allowed this privilege shall be burnt with a hot iron in the brawn 
 of the left thumb. 
 
 After this burning the laity, and before it the real clergy, 
 were discharged from the sentence of the law in the king's court, 
 and delivered over to the ordinary, to be dealt with according to the 
 ecclesiastical canons. Whereupon the ordinary, not satisfied with 
 the proofs adduced in the profane secular court, set himself for- 
 mally to work to make a purgation of the offender by a new 
 canonical trial ; although he had been previously convicted by 
 his country, or perhaps by his own confession. This trial was 
 held before the bishop in person, or his deputy ; and by a jury ot 
 twelve clerks : and there, first, the party himself was required to 
 make oath of his own innocence ; next, there was to be the oath 
 of twelve compurgators, who swore they believed he spoke truth ; 
 then, witnesses were to be examined upon oath, but on behalf of 
 the prisoner only : and lastly, the jury were to bring in their ver- 
 dict upon oath, which usually acquitted the prisoner; otherwise, 
 if \ clerk, he was degraded, or put to penance. A learned judge, 
 in the beginning of the last century, remarks with much indigna- 
 tion the vast complication of perjury and subornation of perjury, 
 in this solemn farce of a mock trial ; the witnesses, the compur- 
 gators, and the jury, being all of them partakers in the guilt : the 
 delinquent party also, though convicted before on the clearest evi- 
 dence, and conscious of his own offence, yet was permitted and 
 almost compelled to swear himself not guilty : nor was the good 
 bishop himself, under whose countenance this scene of wicked- 
 ness was daily transacted, by any means exempt from a share of 
 it And yet by this purgation the party was restored to his 
 credit, his liberty, his lands, and his capacity for purchasing 
 afresh, and was entirely made a new and an innocent man. 
 
 Accordingly the statute of i8 Eliz., ch. 7, enacts, that, for the 
 
OF THE BENEFIT OF CLERGY. 1033 
 
 avoiding of such perjuries and abuses, after the offender has been 
 allowed his clergy, he shall not be delivered to the ordinary, as 
 formerly ; but, upon such allowance and burning in the hand, he 
 shall forthwith be enlarged and delivered out of prison ; with pro- 
 viso, that the judge may, if he thinks fit, continue the offender in 
 jail for any time not exceeding a year. The punishment of burn- 
 ing in the hand, being found ineffectual, was also changed by 
 statute 10 & II Wm. III., ch. 23, into burning in the most visible 
 part of the left ckeek, nearest the nose : but such an indelible 
 stigma being found by experience to render offenders desperate, 
 this provision was repealed, about seven years afterwards, by 
 statute 5 Ann., ch. 6, and till that period, all women, [by the 
 statutes 3 & 4 Wm. & M., ch. 9, and 4 & S Wm. & M. ch. 24], 
 all peers of parliament and peeresses [by statute i Edw. VI, ch. 
 12], and all male commoners who could read, were discharged in 
 all clergyable felonies ; the males absolutely, if clerks in orders ; 
 and other commoners, both male and female, upon branding; and 
 peers and peeresses without branding, for the first offence : 
 yet all liable (excepting peers and peeresses), if the judge saw 
 occasion, to imprisonment not exceeding a year. And those men 
 who could not read, if under the degree of peerage, were hanged. 
 
 [But by subsequent statutes, these rules have been so far 
 changed, that, as the law now stands,] all clerks in orders are, 
 without any branding, and of course without any transportation, 
 fine, or whipping (for those have been substituted in lieu of the 
 other), to be admitted to thisprivilege,and immediately discharged ; 
 and this as often as they offend. Again, all lords of parliament 
 and peers of the realm and peeresses, shall be discharged in all 
 clergyable felonies without any burning in the hand or imprison- 
 ment, or other punishment substituted in its stead, in the same 
 manner as real clerks convict : but this is only for the first offence. 
 Lastly, all the commons of the realm, not in orders, whether 
 male or female, shall for the first offence be discharged of the 
 capital punishment of felonies within the benefit of clergy, upon 
 being burnt in the hand, whipped, or fined, or suffering a discre- 
 tionary imprisonment in the common jail, the house of correc- 
 tion, one of the penitentiary houses, or in the places of labor foi 
 the benefit of some navigation; or, in case of larceny, upon be- 
 ing transported for seven years, if the court shall think proper. 
 
 II. The second point to be considered is, for what crimes the 
 
I034 OF JUDGMENT AND ITS CONSEQUENCES. 
 
 ptivilegiiim clericale, or benefit of clergy, is to be allowed. Anl, it 
 is to be observed, that neither in high treason nor in petit larceny, 
 nor in any mere misdemeanors, it was indulged at the common 
 law ; and therefore we may lay it down for a rule that it was al- 
 lowable only in petit treason and capital felonies. But yet it was 
 not allowable in all felonies whatsoever : for in some it was 
 denied even by the common law ; as in arson, that is, the burning 
 of houses. And farther, many other acts of felony are ousted 
 of clergy by particular acts of parliament. 
 
 In this state does the benefit of clergy at present stand; very 
 considerably different from its original institution : the wisdom 
 of the English legislature having, in the course of a long and 
 laborious process, extracted by a noble alchemy rich medicines 
 out of poisonous ingredients ; and converted, by gradual muta- 
 tions, what was at first an unreasonable exemption of particular 
 popish ecclesiastics, into a merciful mitigation of the general law, 
 with respect to capital punishment. 
 
 CHAPTER XXVII. 
 
 [bL. COMM. BOOK IV. CH. XXIX.] 
 
 Of yudgment and its Consequences. 
 
 We are now to consider the next stage of criminal prosecu- 
 tion, after trial and conviction are past, in such crimes and mis- 
 demeanors, as are either too high or too low to be included within 
 the benefit of clergy : which is that of judgment. For when, 
 upon a capital charge, the jury have brought in their verdict 
 guilty, in the presence of the prisoner ; he is either immediately, 
 or at a convenient time soon after, asked by the court, if he has 
 anything to offer why judgment should not be awarded against 
 him. And in case the defendant be found guilty of a misdemea- 
 nor (the trial of which may, and does usually, happen in his ab- 
 sence, after he has once appeared), a capias is awarded and issued, 
 to bring him in to receive his judgment ; and, if he absconds, he 
 may be prosecuted even to outlawry. But whenever he appears 
 in person, upon either a capital or inferior conviction, he may at 
 
OF JUDGMENT AND ITS CONSEQUENCES. 1035 
 
 this period, as well as at his arraignment, offer any exceptions to 
 the indictment, in arrest or stay of judgment: as for want of 
 sufficient certainty in setting forth either the person, the time, 
 the place, or the offence. And, if the objections be valid, the 
 whole proceedings shall be set aside ; but the party may be in- 
 dicted again. And we may take notice, i. That none of the 
 statutes of jeofails, for amendment of errors, extend to indict- 
 ments or proceedings in criminal cases ; and therefore a defective 
 indictment is not aided by a verdict, as defective pleadings in 
 civil cases are. 2. That, in favor of life, great strictness has at 
 all times been observed, in every point of an indictment. Sir 
 Matthew Hale indefed complains, " that this strictness is grown 
 to be a blemish and inconvenience in the law, and the adminis- 
 tration thereof : for that more offenders escape by the over-easy 
 ear given to exceptions in indictments, than by their own inno- 
 cence." And yet no man was more tender of life than this truly 
 excellent judge. 
 
 A pardon also, as has been before said, may be pleaded in ar- 
 rest of judgment, and it has the same advantage when pleaded here, 
 as when pleaded upon arraignment; viz., the saving the attain- 
 der, and of course the corruption of the blood : which nothing can 
 restore but parliament, when a pardon is not pleaded till after sen- 
 tence. And certainly, upon all accounts, when a man hath obtain- 
 ed a pardon, he is in the right to plead it as soon as possible. 
 
 Praying the benefit of clergy may also be ranked among the 
 motions in arrest of judgment : of which we spoke largely in 
 the preceding chapter. 
 
 If all these resources fail, the court must pronounce that 
 judgment which the law hath annexed to the crime, and which 
 hath been constantly mentioned, together with the crime itself, 
 in some or other of the former chapters. Of these some are 
 capital, which extend to the life of the offender, and consist 
 generally in being hanged by the neck till dead. Some punish- 
 ments consist in exile or banishment, by abjuration of the realm, 
 or transportation : others in loss of liberty, by perpetual or tem- 
 porary imprisonment. Some extend to confiscation, by for- 
 feiture of lands, or movables, or both, or of the profits of lands 
 for life : others induce a disability, of holding offices or employ- 
 ments, being heirs, executors, and the like. Some are merely 
 pecuniary, by stated or discretionary fines. 
 
 When sentence of death, the most terrible and highest judg 
 
ro36 OF JUDGMENT AND ITS CONSEQUENCES. 
 
 ment in the laws of England, is pronounced, the immediate in- 
 separable consequence from the common law is attainder. The 
 criminal is then called attaint, attinctus, stained or blackened. He 
 is no longer of any credit or reputation ; he cannot be a witness 
 in any court : neither is he capable of performing the functions 
 of another man : for, by an anticipation of his punishment, he is 
 already dead in law. This is ■iix.tx judgment ; for there is great 
 difference between a man convicted a.nd attainted: 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 maybe offered in arrest of judgment; the indict- 
 ment may be erroneous, which will render his guilt uncertain, 
 and thereupon the present conviction may be quashed : he may 
 obtain a pardon, or be allowed the benefit of clergy : 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 guilty ; and there is 
 not the remotest possibility left of any thing 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 judgment of outlawry 
 on a capital crime, pronounced for absconding 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 consequences of attainder are forfeiture and corruption 
 of blood.' 
 
 i ' But by a recent statute it has been enacted that " no confession, con- 
 viction, or judgment of or for any treason, or felony, or felo de se, shall cause 
 any attainder, or corruption of blood, or any forfeiture or escheat, provided 
 that nothing in this act shall affect the law of forfeiture consequent upon 
 outlawry." (33 & 34 Vict., ch. 23 [1870].) 
 
 In the United States, forfeiture, as a general mode )f punishment for 
 crimes, has never existed. But the forfeiture of particular property, used in 
 an unlawful transaction, is sometimes prescribed as a penalty in certain 
 classes of offenses. Thus, acts of Congress have been passed, providing 
 that smuggling, or the importation of goods under fraudulent invoices, shall 
 cause a forfeiture, either of the entire invoice or of the property unlawfully 
 imported. Acts of piracy are punished by a forfeiture of the vessel and 
 its appurtenances. But these cases are evidently diflterent from the for- 
 feiture of a person's lands, goods and chattels generally, as under the old 
 English law. 
 
OF JUDGMENT AND ITS CONi^EQUENCES. 1037 
 
 I. Forfeiture is twofold ; of real and personal estates. First, 
 as to real estates : by attainder in high treason, a man forfeits to 
 the king all his lands and tenements of inheritance, whether fee- 
 simple or fee-tail, and all his rights of entry on lands or tenements 
 which he had at the time of the offence committed, or at any 
 time afterwards, to be for ever vested in the crown, and also the 
 profits of all lands and tenements, which he had in his own right 
 for life or years, so long as such interest shall subsist. This for- 
 feiture relates backwards to the time of the treason committed : 
 so as to avoid all intermediate sales and incumbrances, but not 
 those before the fapt 
 
 The natural justice of forfeiture or confiscation of property, 
 for treason, is founded on this consideration : that he who hath' 
 thus violated the fundamental principles of government, and 
 broken his part of the original contract between king and peo- 
 ple, hath abandoned his connections with society ; and hath no 
 longer any right to those advantages, which before belonged to 
 him purely as a member of the community ; among which social 
 advantages, the right of transferring or transmitting property to 
 others is one of the chief. Such forfeitures, moreover, whereby 
 his posterity must suffer as well as himself, will help to restrain a 
 man, not only by the sense of his duty, and dread of personal 
 jiunishment, but also by his passions and natural affections. 
 
 In cases of felony, the offender also forfeits all his chattel in- 
 terests absolutely, and the profits of all estates of freehold during 
 life ; and after his death, all his lands and tenements in fee sim- 
 ple (but not those in tail) to the crown, for a very short period 
 of time : for the king shall have them for a year and a day, and 
 may commit therein what waste he pleases ; which is called the 
 king's /mr, day, and waste. This year, day, and waste, are now 
 usually compounded for; but otherwise they regularly belong to 
 the crown ; and, after their expiration, the land, would have 
 naturally descended to the heir, did not its feudal quality in- 
 tercept such descent, and give it by way of escheat to the lord. 
 These forfeitures for felony do also arise only upon attainder ; 
 and therefore a felo de se forfeits no land of inheritance or free- 
 hold, for he never is attainted as a felon. They likewise relate 
 back to the time of the offence committed, as well as forfeitures 
 for treason ; so as to avoid all intermediate charges and con.-ey- 
 ances. This may be hard upon such as have unwarily engaged 
 
I038 OF JUDGMENT AND ITS CONSEQUENCES. 
 
 with the offender : but the cruelty and reproach must lie on the 
 part, not of the law, but of the criminal ; who has thus knowing- 
 ly and dishonestly involved others in his own calamities. 
 
 These are all the forfeitures of real estates created by the 
 common law, as consequential upon attainders by judgment of 
 death or outlawry. 
 
 The forfeiture of goods and chattels accrues in every one of 
 the higher kinds of offence : in high treason or misprision there- 
 of, felonies of all sorts, whether clergyable or not, self-murder or 
 felony de se, petit larceny, standing mute, and the offences of 
 striking in Westminster-hall, or drawing a weapon upon a judge 
 there sitting in the king's courts of justice. 
 
 There is a remarkable difference or two between the forfeiture 
 of lands, and of goods and chattels, i. Lands are forfeited upon 
 attainder, and not before : goods and chattels are forfeited by 
 conviction. Because in many of the cases where goods are for- 
 feited, there never is any attainder ; which happens only where 
 judgment of death or outlawry is given : therefore in those cases 
 the forfeiture must be upon conviction or not at all ; and, being 
 necessarily upon conviction in those, it is so ordered in all other 
 cases, for the law loves uniformity. 2. The forfeiture of lands 
 has relation to the time of the fact committed, so as to avoid all 
 subsequent sales and incumbrances ; but the forfeiture of goods 
 and chattels has no relation backwards ; so that those only which 
 a man has at the time of conviction shall be forfeited. There- 
 fore a traitor or felon may bo7ia fide sell any of his chattels, real 
 or personal, for the sustenance of himself and family between 
 the fact and conviction ; for personal property is of so fluctuat- 
 ing a nature, that it passes through many hands in a short time ; 
 and no buyer could be safe, if he were liable to return the goods 
 which he had fairly bought, provided any of the prior vendors had 
 committed a treason or felony. Yet if they be collusively and 
 not bona fide parted with, merely to defraud the crown, the law 
 (and particularly the statute 13 Eliz., ch. 5) will reach them ; 
 for they are all the while truly and substantially the goods of the 
 offender : and as he, if acquitted, might recover them himself, 
 as not parted with for a good consideration ; so in case he hap- 
 pens to be convicted, the law will recover them for the king. 
 
 II. Another immediate consequence of attainder is the cor- 
 ruption of blood, both upwards and downwards ; so that an at 
 
OF REVERSAL OF JUDGMENT. 1039 
 
 tainted 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 de- 
 scents to his posterity, wherever they are obliged to derive a tJtlo 
 through him to a remoter ancestor. 
 
 CHAPTER XXVIII. 
 
 [BL. COMM. BOOK IV. CH. XXX.] 
 
 Of Reversal of yudgment. 
 
 We are next to consider how judgments, with their several 
 connected consequences, of attainder, forfeiture, and corruption 
 of blood, may be set aside. There are two ways of doing this • 
 either by falsifying or reversing the judgment, or else by a re- 
 prieve or pardon. 
 
 A judgment may be falsified, reversed, or avoided, in the first 
 place, without a writ of error, for matters foreign to or dehors 
 the record, that is, not apparent upon the face of it ; so that they 
 cannot be assigned for error in the superior court, which can 
 only judge from what appears in the record itself : and therefore 
 if the whole recerd be not certified, or not truly certified, by the 
 inferior court, the party injured thereby (in both civil and crim 
 inal cases) may allege a diminution of the record, and cause it 
 to be rectified. Thus, if any judgment whatever be given by 
 persons, who had no good commission to proceed against the 
 person condemned, it is void ; and may be falsified by showing 
 the special matter without writ of error. 
 
 Secondly, a judgment maybe reversed by writ of error. •'^ 
 
 which lies from all inferior criminal jurisdictions to the court of 
 
 king's bench, and from the king's bench to the house of peers ; 
 
 ' The practice upon writs of error is, to a great extent, regulated bj 
 
 •tatutein the different States. 
 
I040 OF REVERSAL OF JUDGMENT. 
 
 and may be brought for notorious mistakes in the judgment or 
 other parts of the record : as where a man is found guilty of per- 
 jury and receives the judgment of felony, or for other less palpa- 
 ble errors ; such as any irregularity, omission, or want of form 
 in the process of outlawry, or proclamations : the want of a 
 proper addition to the defendant's name, according to the statute 
 of additions ; for not properly naming the sheriff or other ofiScer 
 of the court, or not duly describing where his county court was 
 held ; for laying an offence committed in the time of the late 
 king, to be done against the peace of the present ; and for other 
 similar causes, which (though allowed out of tenderness to life 
 and liberty) are not much to the credit or advancement of the 
 national justice. These writs of error, to reverse judgments in 
 case of misdemeanors, are not to be allowed of course, but on 
 sufficient probable cause shown to the attorney-general ; and 
 then they are understood to be grantable of common right, and 
 ex debito justiti(Z. But writs of error to reverse attainders in 
 capital cases are only allowed ex gratia ; and not without express 
 warrant under the king's sign manual, or at least by the consent 
 of the attorney-general. These therefore can rarely be brought 
 by the party himself, especially where he is attainted for an 
 offence against the State ; but they may be brought by his heir, 
 or executor, after his death, in more favorable times ; which may 
 be some consolation to his family. But the easier, and more ef- 
 fectual way, is, 
 
 Lastly, to reverse the attainder by act of parliament. This 
 may be and hath been frequently done, upon motives of com- 
 passion, or perhaps from the zeal of the times, after a sudden 
 revolution in the government, without examining too closely into 
 the truth or validity of the errors assigned. And sometimes, 
 though the crime be universally acknowledged and confessed, yet 
 the merits of the criminal's family shall after his death obtain a 
 restitution in blood, honors, and estate, or some, or one of them, 
 by act of parliament ; which (so far as it extends) has all the 
 effect of reversing the attainder, without casting any reflections 
 upon the justice of the preceding sentence. 
 
 When judgment pronounced upon conviction is falsified or 
 reversed, all former proceedings are absolutely set aside, and the 
 party stands as if he had never been at all accused ; restored in 
 his credit, his. capacity, his blood, and his estates : with regard to 
 
OF REPRIEVE AND PARDON. 1041 
 
 which last, though they may be granted away by the crown, yet 
 the owner may enter upon the grantee, with as little ceremony 
 as he might enter upon a disseizor. But he still remains liable 
 to another prosecution for the same offense ; for the first being 
 erroneous, he never was in jeopardy thereby. 
 
 CHAPTER XXIX. 
 
 [bL. COMM. BOOK IV. CH. XXXI.J 
 
 0/ Reprieve and Pardon. 
 
 The only other remaining ways of avoiding the execution ol 
 the judgment are by a reprieve, or a pardon ; whereof the former 
 is temporary only, the latter permanent. 
 
 I. A reprieve, from reprendre, to take back, is the withdrawing 
 of a sentence for an interval of time : whereby the execution is 
 suspended. This may be, first, ex arbitrio judicis ; either before 
 or after judgment ; :is, where the judge is not satisfied with 
 the verdict, or the evidence is suspicious, or the indictment is 
 insufficient, or he is doubtful whether the offense be within 
 clergy ; or sometimes if it be a small felony, or any favorable 
 circumstances appear in the criminal's character, in order to give 
 room to apply to the crown for either an absolute or conditional 
 pardon. These arbitrary reprieves may be granted or taken off 
 by the justices of gaol-delivery, although their session be fin- 
 ished, and their commission expired : but this rather by common 
 usage,. than of strict right. 
 
 Reprieves may also be ex necessitate legis : as, where a wo- 
 man is capitally convicted, and pleads her pregnancy ; though 
 this is no cause to stay the judgment, yet it is to respite the 
 execution till she be delivered. In case this plea be made in 
 stay of execution, the judge must direct a jury of twelve matrons 
 or discreet women to inquire the fact : and if they bring in their 
 vcraict, quick with child i^ox barely, with child, unless it be alive 
 in the womb, is not suflficient), execution shall be stayed generally 
 till the next session ; and so from session to session, till either 
 she is delivered, or proves by the course of nature not to have 
 
 67 
 
I042 OF REPRIEVE AND PARDON. 
 
 been with child at all. But if she once hath had the benefit of 
 this reprieve, and been delivered, and afterwards becomes preg- 
 nant again, she shall not be entitled to the benefit of a farther 
 respite for that cause. For she may now be executed before the 
 child is quick in the womb ; and shall not, by her own inconti- 
 nence, evade the sentence of justice. 
 
 Another cause of regular reprieve is, if the offender becomes 
 non comfios between the judgment and the award of execution: 
 for regularly, as was formerly observed, though a man be compos 
 when he commits a capital crime, yet if he becomes non compos 
 after, he shall not be indicted ; if after indictment, he shall not be 
 convicted; if after conviction, he shall not receive judgment; 
 if after judgment, he shall not be ordered for execution : for, 
 "furiosus solo furore punitur" and the law knows not but he 
 might have offered some reason, if in his senses, to have stayed 
 these respective proceedings. It is therefore an invariable rule, 
 when any time intervenes between the attainder and the award 
 of execution, to demand of the prisoner what he hath to allege, 
 why execution should not be awarded against him : and if he 
 appears to be insane, the judge in his discretion may and ought 
 to reprieve him. 
 
 II. If neither pregnancy, insanity, nor other plea, will avail 
 to avoid the judgment, and stay the execution consequent there- 
 upon, the last and surest resort is in the king's most gracious 
 pardon ; the granting of which is the most amiable prerogative 
 of the crown. Law (says an able writer) cannot be framed on 
 principles of compassion to guilt ; yet justice, by the constitution 
 of England, is bound to be administered in mercy ; this is prom- 
 ised by the king in his coronation oath, and it is that act of his 
 government, which is the most personal, and most entirely his 
 own. The king himself condemns no man ; that rugged task he 
 leaves to his courts of justice : the great operation of his sceptre 
 is mercy. 
 
 Under this head of pardons, let us briefly consider, i . The 
 vbject of pardon : 2. The manner of pardoning : 3. The effect of 
 such pardon, when allowed. 
 
 I. And first, the king may pardon all offences merely against 
 the crown, or the public ; excepting where private justice is prin- 
 cipally concerned in the prosecution of offenders : " non potest 
 rex gratiam facere cum injuria et damno aliorum." Neither can 
 
OF REPRIEVE AND PARDON. 1043 
 
 he pardon a common nuisance, while it remains unredressed, or 
 so as to prevent an abatement of it, though afterwards he may 
 remit the fine : because though the prosecution is vested in the 
 king to avoid multiplicity of suits, yet (during its continu- 
 ance) this offense savors more of the nature of a private injury 
 to each individual in the neighborhood, than of a public wrong. 
 Neither, lastly, can the king pardon an offence against a popular 
 or penal statute, after information brought ; for thereby the in- 
 former hath acquired a private property in his part of the 
 penalty. 
 
 There is also acestriction of a peculiar nature, that affects 
 the prerogative of pardoning, in case of parliamentary impeach- 
 ments ; viz., that the king's pardon cannot be pleaded to any 
 such impeachment, so as to impede the inquiry, and slop the 
 prosecution of great and notorious offenders.' It was enacted 
 by the act of settlement, 12 & 13 Wm. III., ch. 2, "that no pardon 
 under the great seal of England shall be pleadable to an impeach- 
 ment by the commons in parliament." But, after the impeach- 
 ment has been solemnly heard and determined, it is not under- 
 stood that the king's royal grace is farther restrained or abridged : 
 for after the impeachment and attainder of the six rebel lords in 
 1715, three of them were from time to time reprieved by the 
 crown, and at length received the benefit of the king's most 
 gracious pardon. 
 
 2. As to the manner of pardoning. It must be under the 
 ^eat seal. A warrant under the privy seal, or sign manual, 
 though it may be a sufficient authority to admit the party to bail, 
 in order to plead the king's pardon, when obtained in proper 
 form, yet is noj: of itself a complete irrevocable pardon. 
 
 A pardon may be conditional; that is, the king may extend 
 his mercy upon what terms he pleases ; and may annex to his 
 bounty a condition either precedent or subsequent, on the per- 
 formance whereof the validity of the pardon will depend ; and 
 this by the common law. Which prerogative is daily exerted 
 in the pardon of felons, on condition of being confined to hard 
 
 ' The United States Constitution gives the President " power t& grant 
 reprieves and pardons, for offenses against the United States, except in 
 cases of impeachment." (Art. 2, § 2.) In the several States of the Union, 
 wmMar power is usually reposed in the Governor, though sometimes in a 
 ipccial pardoning council, to whom applications for pardon are referred. 
 
1044 OF EXECUTION. 
 
 labor for a itated time, or of transportation to some foreign 
 country for life, or for a term of years. 
 
 3. Lastly, the effect of such pardon by the king, is to make 
 the offender a new man ; to acquit him of all corporal penalties 
 and forfeitures annexed to that offence for which he obtains his 
 pardon ; and not so much to restore his former, as to give him a 
 new credit and capacity. But nothing can restore or purify the 
 blood when once corrupted, if the pardon be not allowed till after 
 attainder, but the high and transcendent power of parliament 
 
 CHAPTER XXX. 
 
 [BL. COMM. BOOK IV. CH. XXXII.] 
 
 Of Execution. 
 
 There now remains nothing to speak of, but execution ; the 
 completion of human punishment. And this, in all cases, as 
 well capital as otherwise, must be performed by the legal officer, 
 the sheriff or his deputy ; whose warrant for so doing was an- 
 ciently by precept under the hand and seal of the judge. After- 
 wards it was established, that, in case of life, the judge may 
 command execution to be done without any writ. And now the 
 usage is, for the judge to sign the calendar, or list of all the 
 prisoners' names, with their separate judgments in the margin, 
 which is left with the sheriff. As, for a capital felony, it is 
 written opposite to the prisoner's name, " let hinr be hanged by 
 the neck ; " formerly in the days of Latin an abbreviation, " sus. 
 per col." for " suspendatur per collum." And this is the only 
 warrant that the sheriff has for so material an act as taking away 
 the life of another. 
 
 The sheriff, upon receipt of his warrant, is to do execution 
 within a convenient time ; which in the country is also left 
 at large. In London indeed a more solemn and becoming exact- 
 ness is used, both as to the warrant of execution, and the time 
 of executing thereof; for the recorder, after reporting to the 
 king in person the case of the several prisoners, and receiv- 
 ing his royal pleasure, that the law must take its course, issues 
 
OF EXECUTION. 1045 
 
 his warrant to the sheriffs ; directing them to do i;xecution on the 
 day and at the place assigned. And, in the court of king's 
 bench, if the prisoner be tried at the bar, or brought there 
 by habeas corpus, a rule is made for his execution ; either specify- 
 ing the time and place, or leaving it to the discretion of the sheriff. 
 And, throughout the kingdom, by statute 25 Geo. II., ch. 37, it 
 is enacted, that, in case of murder, the judge shall in his sentence 
 direct execution to be performed on the next day but one after 
 sentence passed. But, otherwise, the time and place of execution 
 are by law no part of the judgment. It has been well observed 
 that it is of great importance, that the punishment should follow 
 the crime as early as possible ; that the prospect of gratification 
 or advantage, which tempts a man to commit the crime, should 
 instantly awake the attendant idea of punishment. Delay of exe- 
 cution serves only to separate these ideas ; and then the execu- 
 tion itself affects the mind of the spectators rather as a terrible 
 sight, than as the necessary consequence of transgression. 
 
 The sheriff cannot alter the manner of the execution by sub- 
 stituting one death for another, without being guilty of fel- 
 ony himself, as has been formerly said. It is held also by Sir 
 Edward Coke and Sir Matthew Hale, that even the king cannot 
 change the punishment of the law, by altering the hanging or burn- 
 ing into beheading ; though, when beheading is part of the sen- 
 tence, the king may remit the rest. And, notwithstanding some 
 examples to the contrary. Sir Edward Coke stoutly maintains, 
 that "judicandum est legibus, non exemplis." But others have 
 thought, and more justly, that this prerogative, being founded 
 in mercy, and immemorially exercised by the crown, is part 
 of the common law. 
 
 To conclude : it is clear, that if, upon judgment to be hanged 
 by the neck till he is dead, the criminal be not thoroughly killed, 
 but revives, the sheriff must hang him again. For the former 
 hanging was no execution of the sentence ; and, if a false 
 tenderness were to be indulged in such cases, a multitude of col- 
 lusions might ensue.* 
 
 ' The execution of capital sentences is fully regulated in this country by 
 the statutes of the respective States. The death penalty is usually inflicted 
 only in cases of murder in the first degree, and in some States has been 
 abolished altogether. The ordinary punishment in cases of felony is im- 
 prisonment in a state prison ; in cases of misdemeanor, fine or imprison 
 ment in a county iail, or both. 
 
I046 OF EXECUTION. 
 
 And having thus arrived at the last stage of criminal proceed- 
 ings, or execution, the end and completion of human pums/imeut, 
 which was the sixth and last head to be considered under 
 the division of public wrongs, the fourth and last object of 
 the laws of England ; these Commentaries will here be brought 
 to an end. 
 
APPENDIX. 
 
 I. 
 
 Glossary of Technical Terms, etc. 
 
 The following words and phrases used by Blackstone, and having a tech- 
 nical or peculiar meaning, are here defined for the convenience of the student. 
 To ascertain the meaning of other words, which may not be understood, the 
 Index should be consulted. 
 
 Brief accounts are also given of some famous English law writers of early 
 times, who are often referred to by Blackstone. 
 
 [A number following a word denotes the page of the text where such word is used.] 
 
 Abear ance. Behavior ; conduct. 
 
 Abjura'tion. A renouncing by oath : abjuration of the realm, an oath 
 taken to leave the realm forever ; oath of abjuration, in England, an oath 
 renouncing all right of descendants of the Pretender to the crown. 
 
 Ad quod dam''num (425). [Lat. " to what damage."] In English law, a 
 writ directing the sheriff to inquire by the oath of jurors to what damage a 
 grant (as of a fair, market, liberty, or other franchise), intended to be made 
 by the king, would be, both as to the king and as to others. 
 
 Addi'tion. A title or appellation annexed to a person's name to show his 
 rank, occupation, or place of residence, as, e.g., knight, yeoman, esquire, 
 scrivener, etc.; formerly required by the statute of additions (i Henry V. 
 c. 5) to be stated in original writs and in indictments in certain cases ; but 
 this practice is now abolished. 
 
 Advow'son. [Lat. ad and voco, to call.] The right of presenting or 
 nominating a person to a vacant benefice in the church. 
 
 Aid. (I ) A grant of a tax or subsidy to the king for an extraordinary pur- 
 pose (see p. 80). (2) A feudal aid, which is explained on pp. 257 and 276. 
 
 Amor'tise (426). To alienate or convey lands in mortmain, i.e. to a cor- 
 poration, ecclesiastical or temporal. 
 
 Appropria tor (427). In English law, formerly, the possessor of an appro- 
 priated benefice, i.e. a benefice which has been_ perpetually annexed to some 
 spiritual corporation, either sole or aggregate, being the patron of the living. 
 
 Assize . [Lat. assidere, to sit at, sit down to, from ad, to, and sedeo, to 
 
 1047 
 
1048 APPENDIX. 
 
 sit.] (l) A decree, edict, or statute; an ordinance or regulation as to 
 amount, quantity, etc. ; as the assize of arms (259), the assize of bread (923), 
 etc. So rents of assize (240) are fixed, established rents. (2) For other 
 meanings of the word, see p. 723. 
 
 Attach'ment. (i) A seizure of or levy -0.^0^ property under legal process. 
 (2) The arrest or apprehension of a person under authority of law. The word 
 is used commonly in this latter sense in proceedings to punish a person for 
 contempt of court. 
 
 Attaint', (i) An ancient English writ which lay to inquire whether a jury 
 of twelve men gave a false verdict ; if it was so found, the former judgment 
 was reversed (see p. 811). The jury to try the former verdict numbered 
 twenty-four. Abolished in 1826. (2) Attainted, i.e. stained or blackened; 
 under an attainder for crime (see p. 1036). 
 
 Avow'ant. The person who makes avowry in an action of replevin. 
 Avowry is explained on p. 703. 
 
 Bar'retor (98). A fomenter of quarrels and lawsuits; one who excites dis- 
 sension and litigation among neighbors. 
 
 Bill of mortal'ity (797). A statement of the number of deaths within a 
 certain locality during a given time. A person living in a particular district 
 for which such a bill is prepared is said to reside within the bills of mortality. 
 
 Black Act (711). An English statute passed in 1722 (9 Geo. I. c. 22), on 
 account of certain outrages committed near Waltham in Hampshire by per- 
 sons with faces blackened or otherwise disguised ; it made felonies of certain 
 offences against the game laws by persons in disguise, of many acts of mali- 
 cious mischief, of the sending of anonymous letters demanding money, etc. 
 Repealed in 1827. 
 
 Bors'holder (see Head-borough, /oj/). 
 
 Brfc'ton, Henry de. A celebrated English jurist and legal writer who lived 
 in the reign of Henry III. and was for many years a. justice of the King's 
 Court. He is thought by some to have been also chief justice for a few years. 
 He wrote an extended treatise in Latin upon the laws and customs of England 
 {De Legibus et Consuetudinibus AnglicB), which is the chief source of our 
 knowledge concerning the English laws of this early time, and is of great value 
 and interest. An edition has recently been issued by Sir Travers Twiss, con- 
 taining both the Latin text and a translation. (See Kent's Comm. I. 500.) 
 
 Brit'ton. The name of a treatise upon English law, written in French in 
 the reign of Edward I. There has been much discussion as to its authorship. 
 Lord Coke attributed it to John le Breton, bishop of Hereford, while other 
 writers have thought it to be merely an abridgment of Bracton's work, since 
 Bracton's name is found to have been spelt variously as Bratton and Bretton ; 
 but there are difficulties in the way of accepting either theory. An edition of 
 this work, with translation by F. M. NichoUs, was published in England in 
 1865. (See Kent's Comm. I. 501.) 
 
 Brooke, Robert. Chief justice of the Court of Common Pleas in England, 
 from 1554-1558. He wrote a number of important legal works, the chief of 
 
APPENDIX. 
 
 1049 
 
 which wasZfl Graunde Abridgement, published in 1573, which was an abstract 
 of the Year Books down to his own time. It was based upon Fitzherbert's 
 Abridgment, and was regarded as superior to that worlc. A selection of 
 the more recent cases from this abridgment was afterwards published sepa- 
 rately, under the title Brooke's New Cases. 
 
 Bur*ges8 (189). An inhabitant or citizen of a borough. 
 
 Certiora'ri. [Late Lat. "to be certified."] A writ issued by a superior 
 court requiring the judges or oiificers of an inferior court, or other persons hav- 
 ing judicial powers, to certify or return the proceedings or record of a case 
 before them to such higher court, that it may take due action thereon; as 
 where it is desired to have the determination of the lower court reviewed in 
 the higher, or to have a return made more accurate and complete for use upon 
 a writ of error or appeal, etc. 
 
 Chaun'try (426, 842). [Fr. chanter, to sing.) A church or chapel 
 endowed for the saying of masses for the souls of the donors. 
 
 Cinque ports (692). [Fr. cinque, five, ■i.-oA ports r^ The five English ports, 
 Hastings, Romney, Hythe, Dover, and Sandwich. They were deemed im- 
 portant defences against French invasion, and received at an early day special 
 privileges, and were obliged to furnish a certain number of ships for use in 
 war. 
 
 Civil'ian (160). One versed in the civil or Roman law. A professor or 
 doctor of the civil law. 
 
 Clerk. Often used in English law to denote a clergyman or ecclesiastic, a 
 person in holy orders. 
 
 Coke, Ed'ward. Chief justice of the Court of Common Pleas from 1606- 
 1613, chief justice of the King's Bench from 1613-1616. Died in 1633, at the 
 age of 81 . His is one of the most distinguished names among English judges 
 and law-writers. An account of his works is given by Blackstone on pp. 38 
 and 39. 
 
 Commend'am (646). [Late Lat. commenda, from commendo, to commend, 
 intrust.] In English ecclesiastical law, a benefice or living bestowed upon a 
 clergyman to hold until a regular pastor is appointed. This may be tempo- 
 rary or permanent. 
 
 Com'mon Rule (732) . In an action of ejectment at common law, an order 
 of court that the actual tenant in possession of the land, or the person claim- 
 ing title in opposition to the plaintiff, might be made defendant in place of the 
 fictitious defendant previously named in the action, upon condition of confess- 
 ing lease, entry, and ouster, so that the trial might depend wholly upon the 
 question of title. 
 
 Compurga'tors (836, 1032). [Lat. con and purgo, to purify.] In old 
 English law, neighbors of a person on trial for crime or in a civil action, who 
 Bwore that they believed his statements under oath which he made to excul- 
 pate himself; such evidence by them was received in his justification. 
 
 Constitu'tions of Clar'endon (424). Certain laws established in England 
 during the reign of Henry II. by a council or parliament held at Clarendon, 
 
loso APPENDIX. 
 
 by which the power of the pope and his clergy was narrowed, and the exemp- 
 tion which they claimed from secular jurisdiction was much limited. 
 
 Cor'ody. [Late Lat. corrodium, fiirniture, provision.] In old English law, 
 a right to receive a certain allottaent oi food and provisions for one's mainte- 
 nance. When due from ecclesiastical persons, a pension or sum of money 
 was often substituted. Now obsolete. 
 
 Coun'try (781, 786, 1023). A jury, as representing the citizens of a coun- 
 try. Thus when a defendant in common law pleading said that he " put him- 
 self upon the country," the meaning was that he submitted the case to trial by 
 jury. 
 
 Coun'ty Pal'atine (692). {LaX. palaiium, palace.] In England, a county 
 possessing particular privileges ; so called originally because their owners 
 possessed similar powers in certain respects to those exercised by the king in 
 his palace. They have either ceased to exist or have lost their special privi- 
 leges in large measure. 
 
 Court-leet. An ancient English court of criminal jurisdiction, held once a 
 year within a particular hundred, lordship, or manor, for the trial of minor 
 offences. 
 
 Coz'en (923). [Fr. cousiner, to call cousin ; to claim kindred for advantage.] 
 To cheat ; to deceive ; to defraud. 
 
 Cur'tilage (960). [Lat. cars, a court.] Land contiguous to a dwelling- 
 house and occupied therewith, and included within the same fence or common 
 enclosure or court-yard. 
 
 Demise', (i) Death ; usually applied only to the death of a king or 
 queen. (2) The conveyance of an estate either in fee, for life, or for years ; 
 most frequently applied to estates less than a fee. 
 
 Deter'mine. To end or terminate; as, e.g., a right or an office is deter- 
 mined. Often so used by Blackstone. 
 
 Dig'nity. The rank or title of a nobleman ; deemed in English law to be 
 an incorporeal hereditament. 
 
 Disaffor'est (237). To free from the operation of forest laws land reduced 
 thereby to forests, and thus restore them to their former state. 
 
 Disher'ison (430) . The disinheriting of a person ; the depriving him of 
 his inheritance. 
 
 Doc'tors' Com'mons (657). A name applied to the courts and offices in 
 London wherein the ecclesiastical and admiralty courts were held, and the 
 advocates or "doctors" in those courts practised. By a statute of 1857, 
 power was given to dissolve the college of Doctors' Commons and sell the 
 property. 
 
 Dota'tion. The giving of an endowment ; the bestowal of property upon 
 a person or corporation. 
 
 Droit d'au'baine (120). A right claimed by the state, as in France, to 
 appropriate all the personal property therein of a deceased alien, to the ex- 
 clusion of his alien heirs. This was abolished in 1790, was restored by 
 Napoleon I., and finally abolished in 1819. 
 
APPENDIX. 
 
 1051 
 
 Eg3rp'tian8 (848). Gypsies, against whom laws of excessive rigor were 
 formerly enacted in England. Such statutes are now repealed. 
 
 Esquire' (99) . [Old Fr. escuyer, a shield-bearer.] In England, a title of 
 dignity next below that of knight, and above that of gentleman. 
 
 Estray . A tame animal, as a horse, ox, or sheep, found at large, whose 
 owner is unknown. 
 
 Extend' (473). To levy upon by writ of execution. 
 
 Farm'er (299). A tenant or lessee of a farm; one who hires and pays 
 rent for agricultural land. 
 
 Finch, Henry. An English legal writer of distinction, who lived in the 
 reigns of Elizabeth and James I. He published in 1613 a treatise in law- 
 French, called a Description of the Common Laws of England. " Finch's 
 Law," as it was called, enjoyed a high reputation in its day. Several transla- 
 tions have been published. 
 
 Fitzher'bert, An'thony. A judge of the Court of Common Pleas from 1522- 
 1538. His notes display great learning in the law of his time. He wrote the 
 Grand Abridgment, containing an abstract of the Year Books down to his 
 time, the New Natura Brevium (Nature of Writs), and various other works. 
 (See Kent's Comm. I. 508.) 
 
 Fle'ta. The name of a treatise upon English law, written in Latin in the 
 reign of Edward \. Its real authorship is unknown, but its name is attributed 
 to its having been written by some learned lawyer while he was confined in 
 the Fleet prison. It draws largely from Bracton's work, but shows also the 
 alterations in the law since Bracton's time. 
 
 Fore'judge (73, 78). To deprive by the judgment of a court ; to condemn 
 to lose a thing. 
 
 For'tescue, John. Chief justice of the Court of King's Bench from 1442- 
 1460. His treatise in Latin upon the laws of England, entitled De Laudibus 
 Legum AnglicE, attained great celebrity, and has been spoken of as being 
 especially interesting from " its popular form and historical details." A 
 translation of it by Francis Gregor has been published. (See Kent's Comm. 
 I. 502.) 
 
 Free Bench. In English law, the dower which a widow had, by the cus- 
 tom of certain manors, in her husband's copyhold lands ; so called, says Lord 
 Coke, " for that it cometh freely, without any act of the husband's or assign- 
 ment of the heir." 
 
 Glan'vil, Ranulph de. Chief justiciary of England from 1 1 80-1 189, during 
 the reign of Henry II. He was one of the earliest writers upon English law, 
 and his treatise, written in Latin, upon the laws and customs of England 
 {Tractatus de Legibus et Consuetudinibus Regni Anglia) is a valuable source 
 of information concerning ancient English law. It treats of the ancient 
 actions and the forms of writs then in use. A translation of it by J. Beames 
 has been published in England. (See Kent's Comm. I. 499.) 
 
 Glebe [Lat. gleba, a clod of earth]. A tract of land belonging to a parish 
 church or ecclesiastical benefice, and used as a source of its revenues. 
 
1052 APPENDIX. 
 
 Gloss (494). \p>x. glossa, a tongue.] A comment or explanation; an ex- 
 planatory discussion of a document or treatise. 
 
 Grand Coustu'mier (509). A name given to each of two collections of 
 ancient French laws. One (the Coustumier de Normandie) embodies the 
 ancient laws and customs of Normandy; it was compiled about the year 
 1229. It has many points of similarity with the ancient laws of England. 
 The other (the Coustumier de France) is of later origin, having been finished 
 in 1609, and comprises the laws, customs, etc., which had been in use in 
 France from time immemorial. 
 
 Hale Mat'thew. Judge of the Court of Common Pleas from 1654-1658, 
 chief baron of the Exchequer from 1660-1671, chief justice of the King's 
 Bench from 1671-1676. His chief legal works were, (i) A History of the 
 Pleas of the Crown, which is a treatise of the highest value upon the early 
 criminal law of England; (2) A History of the Common Law; (3) An Anal- 
 ysis of the Law. The last was the basis of Blackstone's Commentaries. 
 
 Head'borough. In England formerly, the head man or chief of a tithing, 
 which was so called because ten freeholders with their families composed one ; 
 called also borsholder, i.e. tithing's elder. 
 
 fieng'ham, Ralph de. Chief justice of the King's Bench from 1274-1290, 
 and afterwards chief justice of the Common Pleas from 1301-1309. He 
 compiled the Registrum Brevium (see Register), and left other works 
 called Hengham Magna and Hengham Parva, which were afterwards pub- 
 lished. 
 
 Her'iot. [Ang. Sax. heregeatu, military apparel.] A customary tribute of 
 goods and chattels payable to the lord of the fee on the death of the tenant 
 of the land. This burden attached to copyhold land chiefly, and the heriot 
 was sometimes the best live beast of the tenant, sometimes the best inanimate 
 chattel, as a jewel or piece of plate, etc., according to the lord's option. 
 
 High Commis'sion Court (836). An ecclesiastical court established in 
 England by the statute i Eliz. c. i, and abolished by the act 16 Car. I. c. 11. 
 It had extensive jurisdiction, and was intended to vindicate the dignity and 
 peace of the Church by reforming, ordering, and correcting the ecclesiastical 
 state and persons, and all manner of errors, heresies, schisms, abuses, and 
 offences. 
 
 Hom'age. Used on page 280 to denote the jury of a court baron; so- 
 called because composed of persons owing homage to the lord. 
 
 Hon'or. The seigniory of a lord paramount. 
 
 Hos'pitallers (425). An order of knights who founded and maintained a 
 hospital or hostelry at Jerusalem for pilgrims ; called also Knights of St. John, 
 or Knights of Malta. 
 
 Hove'den Roger. An English historian who lived about 1 170-1200. He 
 wrote in Latin a history of England from 731-1202. 
 
 Hun'dred. A division of a county in England ; supposed to have origi- 
 nally derived its name from having contained ten tithings, or a hundred fami- 
 lies. 
 
APPENDIX. 1053 
 
 Inns of Court. The name given in England to four voluntary societies 
 which have the exclusive right of calling persons to the bar. Their names 
 are the Inner Temple, the Middle Temple, Lincoln's Inn, and Gray's Inn. 
 Each is governed by a body of senior counsel called "benchers." The 
 houses or " chambers " owned by them are chiefly occupied by barristers and 
 are a source of large income. 
 
 Innuen'do (684). [Lat. innuo, to nod, to signify.] A statement in the 
 plaintiff's pleading, in actions for libel or slander, of the meanings attributed 
 by the plaintiff to the defendant's words for which the action is brought. So 
 an indictment for libel may contain innuendoes. When the defendant's words 
 are ambiguous, innuendoes are necessary to show their actionable character. 
 Each innuendo is put in parenthesis after the word or phrase to be explained, 
 and begins with the*word " meaning,'' after which follows the statement of 
 the alleged meaning. Formerly when pleadings were in Latin, the word 
 innuendo was the prefatory word, — hence the name. 
 
 Knights Tem'plar (425)- An order of knights established at Jerusalem 
 in 1 1 18 for the defence of the holy sepulchre and of pilgrims. They took 
 originally vows of poverty, obedience, and chastity, and the order gained 
 great fame for valor and piety. But in course of time it was corrupted by 
 wealth and luxury, and was finally suppressed by the efforts of the pope in 
 1312. 
 
 Lach'es. [Lat. laxus, slow.] Remissness, negligence, undue delay or 
 default. 
 
 Lev'y. (l) To raise or collect; as to levy a tax or rate. (2) To seize or 
 take possession of under process of execution. (3) To levy a fine is to begin 
 and carry on a suit for the purpose of conveying a title to lands to the 
 defendant under the doctrine of fines, by the acknowledgment on record of 
 the plaintiff. 
 
 Li'bel. In the law of procedure, a statement of the plaintiff in a suit of his 
 cause of action and the relief which he demands. This term is used in 
 the practice of ecclesiastical and admiralty courts, and corresponds to the 
 declaration or complaint of common law practice. 
 
 Lit'tleton, Thomas. Judge of the Court of Common Pleas from 1466-148 1. 
 His little Treatise on Tenures became a legal classic, and Lord Coke's 
 commentary thereon forms the first book of Coke's Institutes. (See Kent's 
 Comm. I. 503.) 
 
 Mark (489). Denotes a certain amount or value in money. In England 
 it was equal to 13s. 4d. = $3.24'. In other countries its value differed. 
 
 Mar'riage-art'icles (164). Articles or terms of agreement between parties 
 contemplating marriage, stating the conditions and stipulations as to prop- 
 erty rights and other matters, by which they are to be governed when the 
 marriage is effected. 
 
 Metropol'itan. The bishop who presides over the bishops of a province; 
 an archbishop. 
 
 Mir'ror. The Mirror, often referred to by Blackstone, is a legal treatise 
 
1054 APPENDIX. 
 
 called the Mirror of Justices, which was written during the reign of Edward 
 II., and first published in 1642. The supposed writer was Andrew Home. 
 
 Mise (776). [Lat. mitto, Fr. mettre, to put, to place.] In English law 
 formerly, the issue in real actions, particularly in writs of right; so-called 
 because the case was put or rested on this point. 
 
 Mit'timus. [Lat. "we send," from mitto, to send.] (i) A warrant for 
 the commitment to prison of a person charged with a crime. (2) A writ to 
 remove records from one court to another. 
 
 Mo'dus. A composition for tithes ; money, services, chattels, etc., given 
 in lieu of tithes ; the full name is modus decimandi. 
 
 Mor'tuary. In English law a customary gift claimed by and due to a 
 minister of a parish on the death of a parishioner. 
 
 Mys'tery (130, 1007). A trade, calling, or occupation. 
 
 No'ble (489). The half part of a mark= 6s. 8d. (see Mark, supra). 
 
 Ob'it (426). [Lat. obeo, to] die.] A church service or celebration for the 
 soul of a deceased person upon the anniversary of his death. 
 
 Office. A right to exercise a public or private employment, and to take 
 the fees and emoluments thereto belonging ; whether public, as that of a 
 magistrate, or private, as that of a receiver, bailiff, etc. Offices are ranked 
 among incorporeal hereditaments in English law, but not in this country. 
 
 Oleron', Laws of (667). A celebrated code of maritime law, compiled and 
 promulgated in the 12th century, in the island of Oleron, which lies off the 
 west coast of France. It was based upon earlier codes containing the 
 maritime usages and regulations of the Mediterranean States. It has had a 
 notable influence upon the admiralty jurisprudence of modern times. (See 
 Kent's Comm. III. 12.) 
 
 Or'dinary. In ecclesiastical law, a dignitary of the Church who has 
 ordinary and immediate jurisdiction over ecclesiastical matters, and does not 
 act as a deputy ; hence, in English law, the name commonly denotes the 
 bishop, who is ordinary«of his own diocese. 
 
 Owl'ing (S35). In English law, the offence of transporting wool or sheep 
 out of the kingdom, to the detriment of its staple manufacture ; so-called 
 from being carried on at night. Now abolished. 
 
 Postlimin'ium. A term of the Roman law, denoting the right of a subject 
 who had lost his rights of citizenship, family, and property, in consequence of 
 capture by an enemy, to be restored to them on regaining his liberty and 
 returning. 
 
 Prae'cipe. [Lat. " command."] In English practice, formerly, the name of 
 an original writ commanding the defendant to do an act specified or show cause 
 why he has not done it. Actions to recover real property were begun by this 
 form of writ ; hence a tenant to the prcecipe was one having seizin of the 
 freehold, so as to receive service of a pracipe and defend actions to recover 
 the land. 
 
 Praemuni're. [A corrupt form of the Lat. prcemonere, to forewarn.] In 
 English law, the offence of introducing a foreign power into the realm, and 
 
APPENDIX. loss 
 
 thus creating imperium in imperio, by paying that obedience to papal process 
 which properly belonged to the king alone. Many statutes declared the acts 
 which were deemed to constitute this offence, and imposed very severe 
 penalties. The name is derived from the words of the writ used in prosecut- 
 ing the offence : " prmmunire facias A. 5.," cause A. B. to be forewarned that 
 he appear before us to answer the contempt wherewith he stands charged, 
 etc. 
 
 Preb'end. In England, the stipend granted from the estate of a cathedral 
 or collegiate church to the officiating clergyman, who is hence called a 
 prebendary. 
 
 Procura'tion-money. A commission paid to a broker or other person for 
 obtaining a loan of money. 
 
 Prothon'otary. [Gr. irpwros, first, and Lat. notarius, notary.] Formerly 
 in England, a chief clerk in the Courts of King's Bench and Common Pleas. 
 Afterwards this office was abolished, and that of master took its place. In 
 some American States the name prothonotary is still in use to designate a 
 clerk of court. 
 
 Puis'ne. [Fr. puis, since, and «/, born.] Junior ; inferior in rank. 
 
 Purpres'ture. [Old Fr. pourprendre, to take away entirely.] An enclosure 
 of, or encroachment upon, any part of the public domain, as upon a highway, 
 harbor, public river, etc. 
 
 Pur'view (320). \¥x. pourvu, provided.] The body of a statute or that 
 part which begins with the words "-Beit enacted.^'' It excludes the preamble, 
 and the final repealing clause, if any. 
 
 Que Estate. [Fr. " whose estate."] Formerly in pleading, when a party 
 claiming to have acquired an estate or right by prescription, averred that he 
 and those whose estate he has (^que estate il ad) have been used to enjoy the 
 right claimed for the due period of time, etc., he was said to prescribe in a 
 " gtte estate.''^ 
 
 Reclaim' (924). [Lat. reclamo, to cry out against.] To reclaim against is 
 to cry out against, to oppose. 
 
 Recogni'tion (649, 724). (i) The old form of real action, called an assize 
 (see page 723) . (2) The trial or hearing of an assize. Hence the jury sum- 
 moned upon an assize were called recognitors. 
 
 Reg'ister (438, 644). The Registrum Brevium, or Register of Writs, 
 which is a collection of the different forms of original and judicial writs, which 
 might be used in former times in England in beginning actions of various 
 kinds. (See pages 643, 756.) It is of great historical value. 
 
 Remise'. [Lat. remiito, to send back.] To give or grant back ; to give up 
 or relinquish. 
 
 Remit'ter (702). [Lat. remitto, to send back.] A sending back or restor- 
 ation of a person to a title he had before. 
 
 Res'cous. A rescue. (See page 903.) 
 
 Rho'dian Laws (667). A code of maritime law, whose compilation is attri- 
 buted to the inhabitants of the island of Rhodes, about nine hundred years 
 
I OS 6 APPENDIX. 
 
 before the Christian era. It is the oldest system of marine laws now known. 
 Some fragments of it have come down to modern times, and are found in the 
 Pandects. (See Kent's Comm. III. 4, 5.) 
 
 Roy'al Fish. Whales and sturgeon. When cast ashore or caught near the 
 coast they belonged to the king. 
 
 Rule. An order of court. A rule nisi is an order to show cause against a 
 former act or determination, which is made absolute, unless {nisi) satisfactory 
 cause be shown. 
 
 St. Germyn', Christopher. A distinguished law writer in the reign of 
 Henry VIII. who wrote the Doctor and Student, which is in form a dialogue 
 between a doctor of divinity and a student in the laws of England. Kent 
 speaks of it as "a book of merit and authority." (Kent's Comm. I. 504.) 
 The name is usually spelt Germain. 
 
 Sci're fa'cias. [Lat. "cause him to know," i.e. give him notice.] A writ 
 commanding the sheriff to give notice to the person against whom it is issued 
 that he show cause why a record, judgment, etc., shall not be enforced 
 against him, or why some record or letters patent shall not be annulled. 
 
 Seign'ory. The lordship, manor, or domain of a feudal lord. 
 
 Sel'den, John. A distinguished lawyer and writer, born 1584, died 1654. 
 He held various important public offices, and was for a long time a member 
 of Parliament. His learning was very extensive and he wrote on many topics, 
 both legal and other. His most noted work was the Mare Clausum, in which 
 he defended the sovereignty of England over the narrow seas washing its 
 coasts. He also issued an edition of Fleta, etc. 
 
 Shriev'alty. The office of a sheriff. 
 
 Sig'net. In England, a seal for the authentication of royal grants. 
 
 Sign-man'ual. A person's own name signed by himself; applied specially 
 to the signature of a king or sovereign to official grants or documents. 
 
 Sim'ony. [From Simon Magus, who wished to buy the power of bestow- 
 ing the Holy Spirit.] The offence of buying or selling ecclesiastical prefer- 
 ment. 
 
 Spel'man, Henry. An English writer, distinguished for his antiquarian 
 researches. His Glossary is a valuable collection and explanation of the 
 terms found in ancient records and other writings. Born in 1562, died in 
 1641. 
 
 Star-cham'ber. An English court of very ancient origin, which was new- 
 modelled by statutes in the reigns of Henry VII. and Henry VIII. Its judges 
 were privy-councillors, with two judges of the common-law courts, and they 
 sat without a jury. It had important criminal jurisdiction, but in course of 
 time it usurped unwarrantable powers, political as well as judicial, and exer- 
 cised them with great injustice and wantonness, so that it was finally abol- 
 ished by statute 16 Car. I. c. 10. The origin of the name is a matter of 
 dispute. (See Starr, post, to which some refer the word.) 
 
 Starr (483) . A name giveri anciently in England to contracts and obliga- 
 tions of Jews, from a corruption of the Hebrew word shetar, covenant. An 
 
APPENDIX. 
 
 1057 
 
 ordinance of Richard I. commanded these Starrs to be enrolled and deposited 
 in chests in certain places, one of which was a room in the Exchequer at 
 Westminster ; it has been supposed that this was called the starr-chamber, 
 and that the court of the same name was so styled because held in such 
 room. 
 
 Stat'Jiam, Nicholas. Baron of the Court of Exchequer in the reign of 
 Edward IV. An abridgment of the Year Books to the end of Henry VI.'s 
 reign is attributed to him, though it is not certainly known that he wrote it. 
 
 Staund'forde, William. Judge of the Court of Common Pleas from 1554 
 to 1558. He was the author of two valuable legal works, written in law- 
 French, — a treatise on the Pleas of the Crmvn, and an Exposition of the 
 King's Prerogative. (See Kent's Comm. I. 507.) 
 
 Subtrac'tion (663, 665). The withholding from some person of that to 
 which he is lawfully entitled ; as where an executor withholds a legacy 
 from the legatee ; or husband or wife lives apart from the other without 
 proper cause ; or the payment of church rates is withheld, etc. 
 
 Suffragan. An assistant bishop. 
 
 Superse'4eas. [Lat. " supersede."] A writ issued to supersede some 
 former writ, process, commission, etc., or stay all proceedings thereon. 
 
 Tal'liage. [Fr. tailler, to cut off.] Anciently in England a tax or rate 
 imposed for the raising of government revenue ; specially so-called when 
 imposed upon cities and burghs. 
 
 Task. [Lat. taxo, to tax.] A tax. 
 
 Tith'ing-man. In English law (i) formerly, the chief of a tithing (see 
 Headborough, supra) ; (2) in modern times, a constable. 
 
 Tourn. The sheriff^s tourn was an inferior court of criminal jurisdiction 
 in England, formerly held twice a year before the sheriff in diiferent parts of 
 Ills county. Now abolished. 
 
 Tra'verse. A denial ; (as a verb) to deny. 
 
 Treas'ure-trove. [Fr. trouver, to find.] Treasure, as money, gold, silver, 
 plate, or bullion, found hidden in the earlh or other private place, its owner 
 Ijeing unknown. By English law, it belongs to the king. 
 
 Tum'brel. (1) ■'^ dung-cart. (2) A ducking-stool, anciently used /or the 
 punishment of scolds. 
 
 Vav'asour. In feudal law, a vassal ranking next below a baron. 
 
 Verd'eror (90). [Fr. verd, green.] An officer in England whose care it 
 was to protect the king's vert (greensward) and venison, and to inquire into 
 offences against the same. The verderors held various courts for the trial of 
 such offences. '' 
 
 Vyi (792, 941). [Lat. TO7/a, a country-house. J A town; a tithing. 
 
 Voir dire (794, 798). An examination upon the voir dire (Lat. verum 
 liicere, to speak the truth) is a preliminary examination of a juror or witness, 
 to ascertain whether he is competent or qualified to act in that capacity. 
 
 Wa'ger of Law. A proceeding formerly in use in England in actions of 
 debt and detinue, whereby the defendant was allowed to exculpate himself 
 
ios8 APPENDIX. 
 
 from liability, by taking his oath, that he did not owe the money, etc., as 
 alleged by the plaintiff; his oath was followed by that of compurgators, who 
 swore that they believed his statements. This practice was abolished in 1833, 
 but had long before fallen into disuse. (See Compurgators. ) 
 
 Waif. Goods stolen and waived or thrown away by the thief in his flight, 
 for fear of being apprehended ; by English law, they belonged to the king, if 
 seized by some one for his use. But here such goods may be reclaimed by 
 the true owner. 
 
 Were'gild (936). [Sax. wer, man, and^zVi^, money.] A private pecuniary 
 satisfaction paid by a person who had committed murder or other enormous 
 offence, to the party injured or his relatives. Under Saxon laws, the sums to 
 be paid for homicide were clearly defined, being greater or less according to 
 the rank of the victim. This payment took the place of punishment. 
 
II. 
 
 A Translation of Expressions from the Latin, French, and 
 other Languages, used by Blackstone. 
 
 [The arrangement is alphabetical, and each phrase will be found under the letter which is the initial 
 letter of its first word. A few foreign expressions, which are translated and explained by Black- 
 stone himself, are not included in this table.] 
 
 A fortiori. With stronger reason. 
 
 A mensa et thoro. From bed and board. 
 
 A nativitate. From birth. 
 
 A vinculo matrimonii. From the bond of marriage. 
 
 Ab ardendo. From burning. 
 
 Ab initio. From the beginning. 
 
 Ab intestato. From an intestate. 
 
 Absolutum et directum do?ninium. Absolute and direct ownership. 
 
 Accessorium non ducit, sed sequitur, suum principale. That which is ac- 
 cessory does not carry with it, but itself follows, its principal. 
 
 Accessorius sequitur naturam sui principalis. An accessory follows the 
 nature of his principal. 
 
 Actio personalis moritur cum persona. A personal action dies with the 
 person. 
 
 Actiones in personam, quce adversus eum intenduntur, qui ex contractu vel 
 delicto obligatus est aliquid dare vel concedere. Personal actions, which are 
 directed against him who, by reason of contract or tort, is under obligation to 
 give or grant something. 
 
 Adores fabulce. Actors of the fable. 
 
 Actus Dei nemini facit injuriam. The act of God does injury tp no one. 
 
 Ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt. 
 To the twenty-first year, and until that time they place their youths under 
 guardianship. 
 
 Ad assises capiendas. For taking the assizes. 
 
 Ad colligendum bona defuncti. For collecting the goods of the deceased. 
 
 Ad deliberandum. For deliberating. 
 
 Ad exhceredationem. To the disinherison. 
 
 Ad faciendum, subjiciendum, et recipiendum. To do, submit to, and 
 receive. 
 
 Ad instructiones reparationesque itinerum et pontium, nullum genus homi- 
 num nulliusque dignitatis ac venerationis meritis, cessare oportet. As re- 
 
 1059 
 
io6o APPENDIX. 
 
 spects the construction and repair of roads and bridges, no c/ass of men and 
 none, whatever be their dignity or the reverence for their merits, ought to be 
 exempt. 
 
 Ad libitum. At pleasure. 
 
 Ad litem. For a suit ; for a litigation. 
 
 Ad nocumentum liberi tenementi sui. To the injury of his freehold. 
 
 Ad ostium ecclesia. At the church door. 
 
 Ad prosequendum, testificandum, deliberandum. For prosecuting, testify- 
 ing, deliberating. 
 
 Ad quod damnum. To what damage. 
 
 Ad respondendum. To answer. 
 
 Ad satisfaciendum. To satisfy. 
 
 Ad studendum et orandum. For study and prayer. 
 
 Ad subjiciendum. To submit to. 
 
 Ad testificandum. To testify ; for testifying. 
 
 Advocatifisci. Advocates of the revenue. 
 
 jEquitas sequitur legem. Equity follows the law. 
 
 AStas infantice proxima. The age next to infancy, 
 
 jEtas pubertati prdxima. The age next to puberty. 
 
 Aliter quam ad virum, ex causa regiminis et castigationis uxoris sua, licite 
 et rationabiliter pertinet. Otherwise than lawfully and reasonably belongs to 
 a man for the sake of government and correction of his wife. 
 
 Animo furandi. With intent to steal. 
 
 Animo revertendi. With the intention of returning, 
 
 Animum revertendi. The intention of returning. 
 
 Animum testandi. The intent to make a will. 
 
 Animus ^or animum) furandi. Intent to steal. 
 
 Apprenticii ad legem. Apprentices to the law. 
 
 Arcta et salva custodia. Close and safe custody. 
 
 Articuli super cartas. Articles concerning the charters. 
 
 Assumpsit. He undertook. 
 
 Aula regid ; aula regis. The king's hall ; the king's court. 
 
 Autrefois acquit. Formerly acquitted. 
 
 Autrefois attaint. Formerly attainted. 
 
 Autrefois convict. Formerly convicted. 
 
 Belluinas, atque ferinas, immanesque Longobardorum leges accepit. Re- 
 ceived the savage, wild, and barbarous laws of the Lombards. 
 
 Benigne interpretamur chart as propter simplicitatem laicorum. We 
 interpret deeds (or writings) liberally, on account of the ignorance of the 
 laity. 
 
 Bona notabilia. Goods of notable value; {i.e. sufficient to give the Preroga- 
 tive Court jurisdiction, viz. £(, after a.d. 1603). 
 
 Bona^acantia. Goods wanting an owner. 
 
 Boni homines. Good men. 
 
APPENDIX. 1061 
 
 Brevia testata. Writs {or deeds) witnessed. 
 Burgi latrocinium. Robbery of a walled town. 
 
 Campum partire. To divide the land. 
 
 Capias. Take ; arrest. 
 
 Capias ad respondendum. Arrest [the defendant] to answer [to the 
 plaintiff]. 
 
 Capias ad satisfaciendum. Arrest [the debtor] to satisfy [a judgment] . 
 
 Capias utlagatum. Arrest the outlaw. 
 
 Capitales, generates, perpetui, et majores; a latere regis residentes, qui 
 omnium aliorum corrigere tenentur injurias, et errores. Chief; general, per- 
 manent, and superior; who attend the king, and are bound to correct the 
 wrongs and errors of all the others. 
 
 Capitalis justiciarius totius AnglicE. Chief justiciary of all England. 
 
 Capitula de Judceis. Schedules (or registers) concerning the Jews. 
 
 Caput lupinum. A wolf's head. 
 
 Cassetur. That it be quashed. 
 
 Casus omissus. A case omitted, (i.e. unprovided for). 
 
 Causa j'actitationis matrimonii. An action for boasting of marriage. 
 
 Causa mortis. On account of death. 
 
 Causa venationis. On account of hunting. 
 
 Census regalis. The royal property (or revenue), 
 
 Cepi corpus. I have taken the body. 
 
 Cepit et asportavit. .He took and carried away. 
 
 Certiorari facias. Cause to be certified. 
 
 Cessante ratione, cessat et ipsa lex. The reason ceasing, the law itself 
 ceases. 
 
 Cestui, que doit inheriter al pere, doit inherit er alfils. He who would have 
 been heir to the father [of the deceased] , shall be heir to the son. 
 
 Cestui que use. He who benefits by the use. 
 
 Cestui que trust. He who benefits by the trust. 
 
 Cestui que vie. He whose life measures the estate. 
 
 Chirographa. Handwritings. 
 
 Cirographum. Handwriting. 
 ' Circumspecte agatis. That ye act circumspectly. 
 
 Civiliter mortuus. Civilly dead. 
 
 Clausumf regit. He broke the close. 
 
 Cognovit actionem. He has confessed the action. 
 
 Collatio bonorum. A collecting of goods [for equal division]. 
 
 Comes stabuli. The count of the stable. 
 
 Commune vinculum. The common bond. 
 
 Communia placita non sequantur curiam regis, sed teneantur in aliquo loco 
 terto. Let not common pleas follow the King's Court, but be held in some 
 certain place. 
 
 Concordia discordantium Canonum. A harmonizing of discordant canons. 
 
io62 APPENDIX. 
 
 Concubitu prohibere vago. To restrain from promiscuous intercourse. 
 
 Confirmatio chartarum. Confirmation of charters. 
 
 Consensus, non concubitus, facit nuptias. Consent, not cohabitation, 
 makes a marriage. 
 
 Consider atum est per curiam. It is considered by the court. 
 
 Constat de persona. It identifies the person. 
 
 Contestatio litis. Contestation of suit. 
 
 Contra bonos mores. Against good morals. 
 
 Contra omnes homines fidelitatem fecit. He bound himself to fealty against 
 all men. 
 
 Contra pacem. Against the peace. 
 
 Coram ipso rege. Before the king himself. 
 
 Coram nonjudice. Before a judge (or court) having no jurisdiction. 
 
 Coram paribus. Before the peers. 
 
 Corpora corporata. Bodies corporate. 
 
 Corpus juris canonici. The body of the canon law. 
 
 Corpus juris civilis. The body of the civil law. 
 
 Couchant. Lying down. 
 
 Creamus, erigimus, fundamus, incorporamus . We create, we establish, 
 we found, we incorporate. 
 
 Crepusculum. Twilight. 
 
 Critnen animo felleo perpetratum. A crime perpetrated with a bitter 
 intention. 
 
 Crimen falsi. The crime of deception, {or falsifying). 
 
 Crimen Icesce majestatis. The crime of injuring majesty; the offense of 
 leze-majesty. 
 
 Cuilibet in sua arte credendum est. Every one is to be believed in his own 
 art. 
 
 Cujus est solum, ejus est usgtte ad caelum. Who owns the soil, owns it as 
 far as heaven. 
 
 Cujus est divisio, alterius est electio. Whichever has the division, the 
 other has the choice. 
 
 Culpa adnumerantur , veluti si medicus curationem dereliquerit, male 
 quempiam secuerit, aut perperam ei medicamentutn dederit. Are accounted 
 faults, as if a physician has abandoned an attempt to cure, has operated upon 
 some one unskilfully, or has given him the wrong medicine. 
 
 Cum in tali casu possit eadem res pluribus aliis creditoribus turn prius turn 
 posterius invadiari. Since in such case the same thing may be pledged, 
 both earlier and later, to many other creditors. 
 
 Cum olim in usu fuisset, alterius nomine agi non posse, sed, quia hoc non 
 minimum incommoditatem habebat cceperunt homines per procuratores liti- 
 gare: Though it was formerly the practice that one man could not plead in 
 another's name, yet, since this occasioned very great inconvenience, men 
 began to appear in lawsuits by attorneys. 
 
 Cum testamento annexo. With the will annexed. 
 
APPENDIX. 1063 
 
 Curia Christianitatis. The Christian {or ecclesiastical) courts. 
 
 Custodes (or conservatores') pads. Guardians {or preservers) of the peace. 
 
 Custodiam comitatus. Protection of the county. 
 
 Custos horrei regit. Guardian of the royal granary 
 
 Custos rotulorum. The keeper of the rolls. 
 
 Damage-feasant. Doing damage. 
 
 Damnum absque injuria. Damage without injury; {i.e. without legal 
 wrong). 
 
 Datum. A fundamental principle. 
 
 De bonis defuncti prima deducenda sunt ea qua sunt necessitatis, et postea 
 quce sunt utilitatis, et ultimo qua sunt voluntatis. From the goods of the 
 deceased are first to be deducted all those which are of necessity, and after- 
 wards those which are of utility, and lastly those which are given by will. 
 
 De bonis non. Of the goods not [yet administered]. 
 
 De bono et malo. For good and ill. 
 
 De capitalibus dominis feodi. Of the chief lords of the fee. 
 
 De computo. Concerning an account. 
 
 De coronatore eligendo. For choosing a coroner. 
 
 De coronatore exonerando. For removing a coroner. 
 
 De corpore comitatus. From the body of the county. 
 
 De custodia terrce et hceredis. For the guardianship of the land and the 
 heir. 
 
 De debitore in partes secando. Concerning the cutting of a debtor in 
 pieces. 
 
 De donis conditionalibus. Concerning conditional gifts. 
 
 De estoveriis habendis. Concerning the obtaining of estovers. 
 
 De facto. In fact ; actually ; in fact, but without lawful title. 
 
 Defilio, velfilia, rapto vel abducto. For the taking away or abduction of a 
 son or daughter. 
 
 De frangentibus prisonam. Concerning those who break prison. 
 
 De injuriis. Concerning injuries. 
 
 Dejure. Of right ; rightfully ; by lawful title. 
 
 De la plus belle. Of the fairest, {i.e. from the best part of the husband's 
 estate). 
 
 De mercatoribus. Concerning merchants. 
 
 De militibus. Concerning knights. 
 
 De minimis non curat lex. The law does not care for trifles. 
 
 De novo. Anew ; afresh. 
 
 De officio coronatoris. Concerning the office of coroner. 
 
 De pace, et legalitate, tuenda. For preserving the peace and lawful con- 
 duct. 
 
 De probioribus et potentioribus comitatus sui in custodes pads. From the 
 more worthy and powerful of his county as guardians of the peace. 
 
 De proprietate probanda. For proving property. 
 
io64 APPENDIX. 
 
 De rationeibili parte bonorum. Concerning a reasonable part of the goods. 
 
 De religiosis. Concerning religious persons. 
 
 De retorno habendo. For having a return. 
 
 De uxore rapta et abducta. For the taking away and abduction of a wife. 
 
 De ventre inspiciendo. For inspecting the womb. 
 
 De vicineto. From the neighborhood. 
 
 Decern tales ; octo tales. Ten such men ; eight such men. 
 
 Decretalia Gregorii AToni. The Decretals of Gregory the Ninth. 
 
 Decretum Gratiani. The Decree of Gratian. 
 
 Dedi. I have given. 
 
 Dedi et concessi. I have given and granted. 
 
 Dedimus potestatem. We have given power. 
 
 Dent operant consules, ne quid respublica detrimenti capiat. Let the con- 
 suls take care that the republic receive no harm. 
 
 Dernier resort. Last resort. 
 
 Devenio vester homo. I become your man. 
 
 Dies fasti et nefasti. Judicial and non-judicial days. 
 
 Distringas. Distrain ; levy a distress upon. 
 
 Diversity des courtes. The diversity of courts. 
 
 Do ut des. I give that you may give. 
 
 Do ut facias. I give that you may do. 
 
 Doli capax (plural, capaces) . Capable of evil doing. 
 
 Doli incapax. Incapable of evil doing. 
 
 Dominium directtim. Direct {or absolute) ownership. 
 
 Dominium utile. Ownership by way of use. 
 
 Dominus capitalis feodi loco hceredis habetur, quoties per defectum vel 
 delictum extinguitur sanguis tenentis. The chief lord of the fee takes the 
 place of heir, as often as by defect [of heirs] , or by attainder, the blood of the 
 tenant becomes extinct. 
 
 Dominus manerii. The lord of the manor. 
 
 Domitce naturce. Of tame nature. 
 
 Domus mansionalis Dei. The mansion house of God. 
 
 Donatio feudi. The gift of a feud. 
 
 Donatio mortis catisa. A gift by reason of death. 
 
 Donatio strict a et coarctata ; sicut certis hceredibus, quibusdam a succes- 
 sione exclusis. A gift restrained and confined ; as to particular heirs, some 
 being excluded from the succession. 
 
 Donationes sint stricti juris, ne quis plus donasse prcesumatur quam in 
 donatione expresserit. Gifts are of strict right, that no one may be presumed 
 to have given more than he has expressed in the gift. 
 
 Dos rationabilis. Reasonable dower. 
 
 Dotalitium. Dower. 
 
 Droit d^aubaine. The right to an alien's property. 
 
 Duas uxores eodem tempore habere non licet. It is not lawful to have two 
 \vives at the same time. 
 
APPENDIX. 1065 
 
 Dum bene se gesserit. During good behavior. 
 
 Dumfitit non compos mentis suce, ut dicit, etc. While he was of unsound 
 mind, as he says, etc. 
 Duplicem valorem maritagii. Double the value of the marriage. 
 Durante absentia. During the absence [of the executor]. 
 Durante bene placito. During the good pleasure [of the king]. 
 Durante niinore estate. During minority. 
 Durante viduifate. During widowhood. 
 
 E converso. Conversely ; vice versa. 
 
 Ea sunt animadvertenda peccata maxime, qua difficilime prcecaventur. 
 Those transgressions are to be most severely punished which are with most 
 difficulty guarded agJfinst. 
 
 Eat inde sine die. May go thereof without day. 
 
 Ei incumbit probatio, qui dicit, non qui negat ; cum per rerunt naturam 
 factttm-negantis probatio nulla sit. The proving lies upon him who 
 affirms, not upon him who denies ; since by the nature of things there is no 
 proving by one who denies a fact. 
 
 Ejectione firmce . Ejectment from a farm. (See page 464.) 
 
 Elegit. He has chosen. 
 
 Emptionis-venditionis contractce argumentum. Evidence of a contract of 
 purchase and sale. 
 
 Eo instanti. Upon the instant. 
 
 Erant omnia communia et indivisa omnibus, veluti unum cunctis patrimon- 
 ium esset. All things were common and undivided among all, as if there were 
 a common inheritance to all. 
 
 Esse optime constitutam rempublicam quce ex tribus generibns illis, regali, 
 Optimo, et populari, sit modice confusa. That that is the best established 
 republic which consists of these three Icinds [of government] properly inter- 
 mixed, the monarchic, the aristocratic, and the democratic. 
 
 Esto perpetua. May it be perpetual. 
 
 Et sequitur aliquando poena capitalis, aliquando perpetuum exilium, cum 
 omnium bofiorum ademptione. And sometimes capital punishment follows, 
 sometimes perpetual exile, with the loss of all his goods. 
 
 Et stet nomen universitatis. And the name of corporation may continue. 
 
 Eum qui nocentem infainat, non est cequum et bonum ob eam rem condem- 
 nari; delicta enim nocentiutn nota esse oportet et expedit. It is not just 
 and right that he who charges an offender with his wrong-doing should be 
 condemned on this account ; for it is proper and expedient that the wrongs 
 done by offenders should be made known. 
 
 ExcEquo et bono. In justice and right. 
 
 Ex arbitriojudicis. By the will of the judge. 
 
 Ex assensu patris. With the father's consent. 
 , Ex contractu. From contract. 
 
 Ex debitojustiticB. As a debt of justice ; as a just right. 
 
1066 APPENDIX. 
 
 Ex delicto. From tort. 
 
 Ex donatione regis. By gift from the king. 
 
 Ex donationibus, servitia militaria vel magna serjantia non continentibus, 
 oritur nobis quoddam nomen generate, quod est socagium. From gifts not 
 involving knight services or the services of grand serjeanty, arises a certain 
 general name, which is socage. 
 
 Ex gratia. PiS, matter of favor. 
 
 Ex necessitate legis. From legal necessity. 
 
 Ex nudo pacto non oritur actio. No action arises from a nude pact ; {i.e. a 
 contract without consideration). 
 
 Ex officio. By virtue of his office. 
 
 Ex post facto. After the act. 
 
 Ex quibus rex unum confirmabat. Of whom the king confirmed one. 
 
 Ex speciali gratia^ certa scientia, et mero motu regis. From the special 
 favor, certain knowledge, and unsolicited action of the king. 
 
 Ex vi termini. By force of the term. 
 
 Ex visit atione Dei. By the visitation of God. 
 
 Exigent. They shall require [him to surrender himself] . 
 
 E^gi facias. Cause him to be required [to surrender himself] . 
 
 Expeditio contra hostem, arcium constructio, et pontium reparatio. An 
 expedition against the enemy, the construction of castles, and the reparation 
 of bridges. 
 
 Extendi facias. Cause [the lands, etc.] to be extended ; (/.«. to be valued 
 at their full value). 
 
 Extra quatuor maria. Beyond the four seas. 
 
 Extravagantes Communes. The Common Extravagants. 
 
 Extravagantes Joannis. The Extravagants of John ; [so called as extend, 
 ing {vagantes) beyond (extra) the original canon law]. 
 
 Facio ut des. I do that you may give. 
 Facio ut facias. I do that you may do. 
 Felo de se. A felon of himself; a self-murderer ; a suicide. 
 Felonice. Feloniously. 
 
 Feoda propria et impropria. Proper and improper feuds. 
 Ferce natures. Of a wild nature. 
 Feuda individua. Indivisible feuds. 
 Feudum antiquum. An ancient feud. 
 Feudum apertum. An open feud. 
 Feudum aviium. An ancestral feud. 
 Feudum novum. A new feud. 
 Feudutn paternum. A paternal feud. 
 
 Fief d'^haubert. A military feud. (Literally, by coat of mail.) 
 Fieri. To be made up ; to become. 
 
 Fieri facias. Cause to be made [of the judgment debtor's property a cer- 
 tain sum]. 
 
APPENDIX. 1067 
 
 Filius nullius. A son of nobody. 
 
 Filius populi. A son of the people. 
 
 Fit juris et sdsince conjunctio. There is a union of right and seizin. 
 
 Fiunt. They become so. 
 
 Flagellis et fustibus dcriter verberare uxorem. To beat his wife severely 
 with whips and cudgels. 
 
 Faemina viro co-operta. A woman under the cover (or protection) of her 
 husband ; a married woman. 
 
 Fcenus nauticum. Marine interest. 
 
 Fundatio incipiens. The original foundation. 
 
 Fundatio perficiens. The efficient {or effectual) foundation. 
 
 Furem, si aliter capi non posset, occidere permittunt. Allow the killing of 
 a thief, if he cannot otherwise be taken. 
 
 Furiosus furore solum punitur. A madman is punished by his madness 
 alone. 
 
 Gildam mercatoriam. A mercantile association (or assembly). 
 
 Habeas corpora. That you have the bodies. 
 
 Habeas corpora juratorum. That you have the bodies of the jurors. 
 
 Habeas corpus. That you have the body. 
 
 Habeas corpus ad respondendum. That you have the body to answer. 
 
 Habeas corpus ad subjiciendum. That you have the body to submit to. 
 
 Habeas corpus cum causa. That you have the body with the cause [of his 
 detention] . 
 
 Habere facias possessionem. Cause him to have possession. 
 
 Habere facias seisinam. Cause him to have seizin. 
 
 Habiles ad matrimonium. Fit for marriage. 
 
 Hdbitum et tonsuram clericalem. The clerical habit and tonsure. 
 
 Hceredes maritentur absque disparagatione. Heirs are to be married with- 
 out disparagement. 
 
 Hcereditas jacens. An inheritance lying open, (i.e. unoccupied). 
 
 Hcereditas nunquam ascendit. An inheritance never ascends. 
 
 Hares f actus . An heir by reason of appointment. 
 
 Hceres natus. An heir by reason of birth. 
 
 His testibus, yohanne Moore, yacobo Smith, et aliis, ad hanc rem. convosa- 
 tis. Witness these persons, John Moore, Jacob Smith, and others, for this 
 purpose assembled. 
 
 Hoc quidem perquam durum est, sed ita lex scripta est. This is indeed 
 very hard, but so the law is written. 
 
 Homicidi-um quod nullo vidente, nullo sciente, clam perpetratur. Homicide 
 which is committed secretly, no one seeing, no one knowing it. 
 
 Honorarium. An honorary fee ; recompense from gratitude. 
 
 Hmioris causa. As a mark of honor. 
 
 Hostis humani generis , An enemy of the human race. 
 
1068 APPENDIX. 
 
 Id cerium est, quod certum reddi potest. That is certain which can be ren-- 
 dered certain. 
 
 Id tenementum did potest socagium. This tenure may be called socage. 
 
 Ignorantia juris , quod quisque tenetur scire, neminem excusat. Ignorance 
 of the law, which every one is bound to know, excuses no one. 
 
 Ignoscitur ei qui sanguinem suum qualiter qualiter redemptum voluit. 
 He is excused who has been willing to save his life in any manner whatever. 
 
 Illicitum Collegium. An unlawful association. 
 
 Illud did poterit feodum militare. That is to be called a military feud. 
 
 Immoderate sua jure utatur, tunc reus homiddii sit. If he exercises his 
 right immoderately, then he is guilty of murder. 
 
 Imperator solus et conditor et interpres legis existimatur. The emperor 
 alone is deemed both the maker and the interpreter of the law. 
 
 Impotentia excusat legem. Impossibility is an excuse in law. 
 
 In aider droit. In another's right. 
 
 In bonis, in terris, vel persona. In goods, in lands, or in person. 
 
 In Britannia tertia pars bonorum decendentium ab intestato in opus eccla- 
 sice et pauperum dispensanda est. In Britain a third part of the goods left by 
 an intestate are to be distributed for the needs of the church and of the poor. 
 
 In capita. To the polls, (i.e. heads, or individuals). 
 
 In capite. In chief. 
 
 In crastino animarum. On the morrow of All Souls. 
 
 In esse. In being ; in existence. 
 
 In extremis. In his last moments ; at the point of death. 
 
 In facie ecclesice. In the face (or presence) of the church. 
 
 In facie ecclesice et ad ostium ecclesice ; non enim valent facta in lecto mor- 
 tali, nee in camera, aut alibi ubi clandestina fuere conjugia. In the face of 
 the church and at the church door ; for those made upon a death bed, or in a 
 chamber, or elsewhere where clandestine marriages are made, are not valid. 
 
 In favorem vitce. In favor of life. 
 
 Infeudis vere antiquis. In feuds truly ancient 
 
 In fictione juris semper subsistit cequitas. In a fiction of law equity always 
 abides. 
 
 In faro conscientice. In the tribunal of conscience. 
 
 Inforo contentioso. In a court of litigation. 
 
 Infraudem legis. In circumvention of the law. 
 
 In futuro. In the future. 
 
 In infinitum. For ever. 
 
 In loco parentis. In the place of a parent. 
 
 In misericordia domini regis pro falso clamore sua. In the king's mercy 
 for his false claim. 
 
 In mortua manu. In a dead hand ; in mortmain. 
 
 In obsequio domini regis vel alicujus episcopi. In the service of the lord 
 the king, or of some bishop. 
 
 Inperpetuum rei testimonium. As perpetual evidence of the matter. 
 
APPENDIX. 1069 
 
 In personam. Against the person. 
 
 In pios usus. For pious uses. 
 
 In potentia. In potential existence ; in possibility. 
 
 In potestate parentis. Under parental power. 
 
 In prcesenti. At present ; at once ; now. 
 
 In rem. Against the thing; against the property. 
 
 In rerum natura. In nature ; in existence ; in life. 
 
 In statu quo. In the state in which [things were] ; in the former condi- 
 tion. 
 
 In transitu. In transit ; in course of transfer. 
 
 In ventre sa mere. In his mother's womb. 
 
 Incendit et combussit. He set on fire and burned. 
 
 Incertam et caducafn hereditatem relevabat. It raised up an uncertain and 
 fallen inheritance. 
 
 Incola territorii. Inhabitants of the territory. 
 
 Indebitatus assumpit. Being indebted, he undertook. 
 
 Infra annum luctus. Within the year of mourning. 
 
 Inhumanum erat spoliatum fortunis sttis in solidum damnari. It was in- 
 human that one deprived of all his fortune should be condemned to make 
 payment in full. 
 
 Inops consilii. Without counsel. 
 
 Inguisitio post mortem. An inquisition after death. 
 
 Insimul computassent. Had settled their accounts together. 
 
 Instar dentium. Like teeth. 
 
 Instar omnium. Equivalent to all ; an example of all. 
 
 Interest reipublicce ut sit finis litium. It is to the advantage of the state 
 that tliere shoiild be a limit to litigation. 
 
 Intra mcenia. Within the walls. 
 
 Intra prtesidia. Within a protected place. 
 
 Ipsius. patris beneplacito. By the gracious favor of his father. 
 
 Ipso facto. From the fact itself; in itself. 
 
 Is cui cogtioscitur. He to whom the recognizance is given. 
 
 Is qui cognoscit. He who gives the recognizance. 
 
 Istud homicidium, si fit ex livore, vel delectatione effundendi humanum 
 sanguinem, licet juste occidatitr iste, tamen occisor peccat mortaliter, propter 
 intentionem corruptam. If such homicide he committed through malice or 
 from the pleasure of shedding human blood, though he be justly slain, never- 
 theless the slayer sins mortally on account of his corrupt intention. 
 
 Ita maritentur ne disparagentur, et per consilium propinguorum de con- 
 ^cinguinitate sua. Let them so be married as not to be disparaged, and under 
 the advice of their next of kin. 
 
 Ite et inter vos causas vestras discutite, quia dignum non est ut nos judice- 
 mus Deos. Go and discuss your causes among yourselves, because it is not 
 fit that we should judge gods. 
 
1070 APPENDIX. 
 
 Jeo faile. I have made a mistake ; I have committed error. 
 
 Judex de ea re cognoscet. The judge shall investigate this matter. 
 
 Judicandum est legibus, non exemplis. The question must be determined 
 by the laws, not by the examples. 
 
 Judices delegati. Judges delegate. 
 
 Jurafiscalia. Fiscal rights ; financial rights. 
 
 yura personarum. Rights of persons. 
 
 Jura regalia. Royal rights. 
 
 Jura rerum. Rights of things. 
 
 Jura summi imperii. The rights of sovereign power. 
 
 Jur amentum fidelitaiis. The oath of fealty. 
 
 Jure civili. By the civil law. 
 
 Jure divino. By divine law. 
 
 Jure gentium. By the law of nations. 
 
 Jure natures. By the law of nature. 
 
 Jure representationis. By the right of representation. 
 
 Jure uxoris. In his wife's right. 
 
 Juris et seisince conpmctio. The union of right and seizin. 
 
 Juris naturalis aut divini. Of natural or divine law. 
 
 Juris positivi. Of positive law. 
 
 Juris pmcepta sunt hac, honeste vivere, alterum non Icedere, suum cuigue 
 tribuere. The precepts of the law are these : to live honestly, to injure no 
 one, and to give every man his due. 
 
 Jus accrescendi. The right of increase ; the right of survivorship. 
 
 Jus ad rem. A right to a thing. 
 
 Jus albinatus. The right to an alien's property. 
 
 Jus civile est quod quisque sibi populus constituit. The civil law is that 
 which each nation has established for itself. 
 
 Jus commune. The common right ; the common law. 
 
 Jus gladii. The right of the sword ; the right to execute the law. 
 
 Jus in re. A right in a thing. 
 
 Jus non scriptum. The unwritten law. 
 
 Jus postliminii. The right of postliminium. (See Appendix I.) 
 
 Jus pmtorium. The right of the praetor. 
 
 Jus proprietatis . The right of property. 
 
 Jus prosequendi in judicio quod alicui debetur. The right of suing in 
 a court for what is due to one. 
 
 Jus trium liberorum. The right from having three children. 
 
 Justiciarii ad omnia placita. Justices for all pleas. 
 
 Justiciarii in itinere. The itinerant justices. 
 
 Kar' i^oyyifv. Preeminently. 
 
 Leges non scriptm. Unwritten laws. 
 
 Leges posteriores priores contrarios abrogant. Subsequent laws repeal 
 former laws which are inconsistent with them. 
 
APPENDIX. 1071 
 
 Leges scripta. Written laws. 
 
 Leges sola memoria et usu retinebant. They retained their laws only by 
 memory and custom. 
 
 Leges sub graviori lege. Laws under a superior law. 
 
 Legibus patria optime institnti. Best instructed in the laws of their 
 country. 
 
 Legum Anglicanarum conditor. The founder of English laws. 
 
 Levant. Rising up. 
 
 Levari facias. Cause to be levied. 
 
 Lex Cornelia de sicariis. The Cornelian law concerning assassins. 
 
 Lex Hostilia de furtis. The Hostilian law concerning thefts. 
 
 Lex Julia majestatis. The Julian law of majesty. 
 
 Lex mercatoria. The law merchant. 
 
 Lex neminem cogit ad vana, seu impossibilia. The law compels no one to 
 do idle or impossible things. 
 
 Lex non exacte definit, sed arbitrio boni viri permittit. The law does not 
 exactly define, but leaves to the discretion of a good man. 
 
 Lex non scripta. The unwritten law. 
 
 Lex scripta. The written law. 
 
 Libelli famosi. Defaming libels. 
 
 Liber et legalis homo. A free and lawful man. 
 
 Liber Judicialis. The judicial book. 
 
 Liberam legem. One's right as a free man. 
 
 Liberos et legates homines, de vicineto. Free and lawful men from the 
 neighborhood. 
 
 Liberum animum testandi. Free will in making a will. 
 
 Liberum et commune socagium. Free and common socage. 
 
 Licentia loquendi. Leave to talk. 
 
 Licet apud consilium accusare quoque, et discrimen capitis intendere. It is 
 permitted also to make accusations before the council, and to prosecute for 
 capital crimes. 
 
 Locatio vel conductio. A letting or hiring. 
 
 Lucri causa. For the sake of gain. 
 
 Mala grammatica non vitiat chartam. Bad grammar does not vitiate a 
 deed. 
 Mala in se. Acts wrongful in themselves ; acts morally wrongful. 
 Mala praxis. iVIalpractice. 
 
 Mala prohibita. Acts wrongful because the law prohibits them. 
 Malitia supplet cetatem. Malice makes up for lack of age. 
 Malo animo. With evil intent. 
 
 Malus usus abolendus est. An evil custom ought to be abolished. 
 Mancipia, quasi manu capti. Mancipia, as ii taken by hand. 
 Manerium, a manendo. A manor from there abiding {or residing). 
 Manes, Departed spirit. 
 
I072 APPENDIX. 
 
 Mansueta, quasi mamii assiieia. [Are called] mansueta {i.e. tamed) as 
 being accustomed to the hand. 
 
 Mann forti. With strong hand. 
 
 Meinbruin pro inembro. Member for member. 
 
 Meum and tuum. Mine and thine. 
 
 Mittere in confusutn cum sororibus, quantum pater aut frater ei dederit, 
 qnando ambulaverit ad maritum. To put into a common mass for division 
 with her sisters as much as her father or brother gave her when she was 
 married. 
 
 Mittimus. We send. 
 
 Modicam castigationem adhibere. To inflict moderate punishment. 
 
 Modus decimandi. A peculiar mode of tithing [established by custom] ; a 
 composition for tithes. 
 
 Modus legem dat donationi. The manner [of giving] prescribes the law 
 of the gift. The terms of the gift determine the extent of interest con- 
 veyed. 
 
 Modus levandi fines. The mode of levying fines. 
 
 Molliter manjis imposuit. He laid hands upon him gently. 
 
 Mons sacer. The sacred mount. 
 
 Monstrans de droit. A manifestation {or plea) of right. 
 
 Mutatis mjitandis. The necessary changes being made ; with names, 
 titles, etc., changed as may be necessary. 
 
 Na7n de minimis non curat lex. For the law does not care for trifles. 
 
 Nam ex antecedentibus et consequentibus fit optima interpretatio. For the 
 best interpretation is made by considering the preceding and following parts, 
 {i.e. the whole context). 
 
 Nam feuduvi sine investitura nullo modo constitui potuit . For a feud cap. 
 in no way be created without investiture. 
 
 Nam leges vigilantibiis , non dormientibus, subveniunt . For the laws aid 
 the vigilant, not those who sleep upon their rights, {i.e. the careless or 
 indifferent). 
 
 Nam nemo est hceres viventis. For no one is the heir of a living person. 
 
 Nam omne crimen ebrietas, et incendit et detegit. For drunkenness both 
 enkindles and discloses every crime. 
 
 Nam omne testametUnm morte consummatum est ; et voluntas testatoris est 
 ambulatoria usque ad mortem. For every testament takes effect at death ; 
 and the will of the testator is changeable until the very time of death. 
 
 Nam qui facit per alium, facit per se. For he who does a thing by 
 another, does it by himself. 
 
 Nun qui hceret in litera, hceret in cortice. For he who adheres to the 
 letter, adheres to the mere outer shell, {i.e. regards the mere words and not 
 the true intent). 
 
 Nam, qui non prohibet, cum prohibere possit,jubet. For he who does not 
 prohibit, when he can prohibit, commands. 
 
APPENDIX. 1073 
 
 Nam quod sentel meum est, amplius meum esse non potest. For what is 
 once mine, cannot be mine more completely. 
 
 Nam verba debent intelligi cum effectu, ut res magis iialeat quatn pereat. 
 For words ought to be understood so as to have an effect, in order that the 
 matter may rather avail than perish. 
 Ne exeat regno. That he may not leave the realm. 
 
 Ne faciat vastum vel estrepementum pendente placito dicto indiscusso. 
 That he commit no waste or estrepement during the pendency of the suit. 
 
 Ne quis plus donasse prcesumatur quam in donatione expresserit. That no 
 one may be presumed to have given more than he has expressed in the gift. 
 
 Necessitas culpabilis. A culpable necessity. 
 
 Nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum 
 nostrorum et per judicium parium suorum. That no one shall lose his 
 benefice, except in accordance with the custom of our ancestors and by the 
 judgment of his peers. 
 
 Nemo est hceres viventis. No one is the heir of a living person. 
 
 Nemo in propria causa testis esse debet. No one ought to be a witness in 
 his own cause. 
 
 Nemo tenebatur prodere seipsum. No one was bound to betray himself. 
 
 Nemo ienetur seipsum accusare. No one is bound to accuse himself. 
 
 Nihil dfcit. He says nothing. 
 
 Nil debet. He owes nothing. 
 
 Nisi convenissent in manum viri. Unless they had come under their hus- 
 bands' power. 
 
 Nisi per legale judicium parium suorum vel per legem terra. Except by 
 the lawful judgment of his peers or by the law of the land. 
 
 Nisi prius. Unless before. (See page 650.) 
 
 Nocturna diruptio alicujus habit aculi, vel ecclesics, etiam murorum porta- 
 rumve burgi, ad feloniam perpetrandum. The breaking at night of any habi- 
 tation, or church, or even the walls or gates of a walled town, m order to 
 commit a felony. 
 
 Nomen generalissimum. The most general name. 
 
 Non compos mentis. Not of sound mind. 
 
 Non estfacttim. It is not his deed. 
 
 Non est inventus. He is not found. 
 
 Non jus, sed seisina, facit stipitem. Not the right, but seizin, makes the 
 stocic, {i.e. the source of descent or inheritance). 
 
 Non obstante. Notwithstanding; (i.e. license or authority to do an act not- 
 withstanding any law to the contrary) . 
 
 Non obstante aliquo statuto in contrarium. Notwithstanding any statute to 
 the contrary. 
 
 Non potest rex gratiam facere cum injuria et damno aliorum. The king 
 cannot grant a pardon attended by injury and detriment to others. 
 
 Non prosequitur . He does not prosecute. 
 
 Non sequitur clamor em suam. He does not follow up his claim. 
 
 69 
 
i074 
 
 APPENDIX. 
 
 JVofi sum informatus. I am not informed. 
 
 Non suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit coder e 
 in virum constantem ; talis enim debet esse metus, qui in se contineat vitce 
 periculum, aut corporis cruciatum. Not the suspicion of a weak and timid 
 man, but such as may happen to a resolute man ; for the fear ought to be such 
 as contains in itself danger to life or torture of the body. 
 
 Nudum pactum. A nude pact ; a contract without consideration. 
 
 JVrtl tiel record. No such record. 
 
 Nultort; nul disseizin. No wrong done ; no disseizin. 
 
 Nulli vendemus, nulli negabimus aut differemus, rectum vel justitiam. To 
 no one will we sell, to no one deny or delay, right or justice. 
 
 Nullius filius . The son of nobody. 
 
 Nullutn simile est idem. No similar thing is the same thing. 
 
 Nullum tempus occurrit regi. No time runs against the king. 
 
 Nullus liber homo aliquo modo destruatur, nisi per legale judicium parium 
 suorum aut per legem terra. No free man shall be in any way destroyed, 
 except by the lawful judgment of his peers or by the law of the land. 
 
 Nullus liber homo capiatur, vel imprisonetur , aut exuletur, aut aliquo modo 
 destruatur, tiisi per legale judicium parium suorum, vel per legem terrcz. No 
 free man shall be taken, or imprisoned, or . exiled, or in any way destroyed, 
 except by the lawful judgment of his peers or by the law of the land. 
 
 Ob alterius culpam tenetur, sive servi, sive liberi. Is held liable for the 
 fault of another, whether slave or freedman. 
 
 Officina gentium. The fountain-head of nations. 
 
 Officina justitia. The office of justice. 
 
 Omnes comites, et barones, et milites, et servientes, et universi liberi homines 
 totius regni nostri prcedicti, habeant et teneant se semper bene in armis et in 
 equis, ut decet et oportet ; et sint semper prompti et bene parati, ad servitium 
 suum integrmn nobis explendum et peragendum, cum opus fuerit : secundum 
 quod nobis debent defeodis et tenementis suis de jure facere , et sicut illis statu- 
 imus per commune concilium totius regni nostri prcedicti. Let all counts, and 
 barons, and knights, and vassals, and all free men of our whole kingdom 
 aforesaid, have and hold themselves at all times well provided with arms and 
 horses, as is fitting and proper ; and let them be always ready and well pre- 
 pared for fulfilling and accomplishing their full service to us, when need shall 
 require ; according to what they ought rightfully to do for us, by reason of 
 their feuds and tenements, and as we have decreed for them by the common 
 council of our whole kingdom aforesaid. 
 
 Omni exceptione majores. Superior to every exception. 
 
 Omni quoque corporali cruciatu semoto. All bodily torture also being done 
 away with. 
 
 Omnia catalla cedant defuncto ; salvis uxori ipsius et pueris suis rationa- 
 bilibus partibus suis. All the chattels shall fall under the disposition made 
 by the deceased, saving to his wife and children their reasonable parts. 
 
APPENDIX. 
 
 I07S 
 
 Omnibus qui reipublicce prasunt etiam atque etiam mando, ut omnibus 
 eequos se prabeant judices, perinde ac injudiciali libra scriptum kabetur ; nee 
 quicquam formident quin jus commune audacter libereque dicant. I again 
 and again command all who are set over the state, that they show themselves 
 just judges to all, as is written in the judicial book, {or the dome-book] ; and 
 that no fear deter them from declaring the common law boldly and freely. 
 
 Omnium rerum immunitatem. Exemption from all things. 
 
 Ore tenus. By word of mouth. 
 
 Ousterlemain. Delivery from the hand. 
 
 Oyer and terminer. To hear and determine. 
 
 Pancratium.. A gymnastic contest with wrestling and boxing. 
 
 Parens patrice. Father of his country. 
 
 Pares curice ; pares curtis. Peers of the court. 
 
 Pares debent interesse investitures feudi, et non alii. The peers ought to 
 be present at the investiture of the fief, and not others. 
 
 Pars ilia communis accrescit super stitibus, de persona in personam, usque 
 ad ultimam superstitem. That common part accrues to survivors, from per- 
 son to person, even to the last survivor. 
 
 Pars mulctce regi, vel civiiaii, pars ipsi, qui vindicatur vel propinquis ejus, 
 exsolvitur. A part of the fine is paid to the king or to the state, a part to 
 him who is injured or to his relations. 
 
 Pars rationabilis. A reasonable part. 
 
 Partem, per toto. A part for the whole. 
 
 Particeps criminis. An accomplice in the crime. 
 
 Partus sequitur ventrem. The offspring follow the womb, (i.e. the statue 
 of the mother). 
 
 Parvum servitium regis. Petit serjeanty of the king. (Literally, petty 
 service of the king.) 
 
 Pater aut mater defuncti,jilio non Jilia, hcereditatemrelinquent. . . . Qui 
 defunctus non filios sed jilias reliquerit, ad eas omnis hctreditas pertineat. 
 The fether or mother at death shall leave the inheritance to the son, not to 
 the daughter ; and if a man at death leaves no sons, but only daughters, the 
 whole inheritance shall belong to them. 
 
 Pater est quern nuptice demonstrant. He is the father whom the marriage 
 designates. 
 
 Paterfamilias. The father {or head) of a family. 
 
 Patria potestas in pietate debet, non in atrocitate, consistere. Parental 
 power should consist in affection, not in cruelty. 
 
 Peccatum illud horribile, inter Christianas non nominandum. That horri- 
 ble crime, not to be named among Christians. 
 
 Peculium. Private property. 
 
 Peine forte et dure. Strong and hard punishment. 
 
 Pendente lite. Pending the suit ; during the litigation. 
 
 Pendente placito. Pending the suit. 
 
1076 APPENDIX. 
 
 Per auter vie. For another's life. 
 
 Per capita. By heads ; as individuals ; share and share alike. 
 
 Per formam doni. By the form of the gift. 
 
 Per industriam. By industry. 
 
 Per infortunium. By misadventure. 
 
 Per laudantentum sive judicium parium suorum. By the award or judg- 
 ment of his peers. 
 
 Per magnum, serviiium. By grand serjeanty. (Literally, by great ser- 
 vice.) 
 
 Per minas. By threats. 
 
 Per quod. By which. (See page 681.) 
 
 Per quod consortium amisit. By which he lost the companionship [of his 
 wife] . 
 
 Per quod servitium amisit. By which he lost the service. 
 
 Per servitium militare. By knight service ; by military service. 
 
 Per stirpes. By stocks ; as representing the stocks ; (i.e. ancestors who are 
 the " stocks" or sources of descent). 
 
 Per testes. By witnesses. 
 
 Per verba defuturo. By words in the future tense. 
 , Per verba de presenti. By words in the present tense. 
 , Per vinum delapsis capitalis pcena remittitur. Capital punishment is re- 
 mitted for those who have fallen through wine. 
 
 Piafraus. A pious fraud. 
 
 Placita de debitis, guee fide interposita debentur, vel absque interpositione 
 fidei, sint in justitia regis. Let all pleas of debt, which are due, whether a 
 claim of good faith be interposed or not, be in the king's justice, (i.e. be in 
 the jurisdiction of the king's court) . 
 
 Plegios de prosequendo. Pledges to prosecute. 
 
 Plegios de retorno habendo. Pledges for having a return. 
 
 Plenum dominium. Full ownership. 
 
 Posse comitatus. The power of the county. 
 , Possessio. fratris facit sororem esse ktsredem. The possession of the 
 brother makes the sister heir. 
 
 Post fine. A subsequent fine. 
 
 Potentia propinqua. A near possibility. 
 
 Potentia remotissima. A most remote possibility. 
 
 Pracipe quod reddat. Command that he render. 
 
 Prcedia volantia. Volatile estates. 
 
 Prasumitur pro legitimatione. The presumption is in &vor of legitimacy. 
 
 Prateritorum memoria eventorum. The remembrance of past events. 
 
 Prerogativa regis. The royal prerogative. 
 
 Pretium feudi. The price of a fief. 
 
 Prima facie. At first view. 
 
 Prima seisina ; Primer seizin. The first seizin. 
 
 frimerfine. First fine. 
 
APPENDIX. 
 
 1077 
 
 Pro confesso. As confessed. 
 
 Procorpore comitatus. For the body of the county. 
 
 Pro f also clamor e suo. For his false claim. 
 
 Pro IcBsione fidei. For breach of faith. 
 
 Pro opere et labors. For work and labor. 
 
 Pro re naia. According to the circumstances ; for the special occasion. 
 
 Pro salute animcE. For the welfare of the soul. 
 
 Pro salute animarum. For the welfare of their souls. 
 
 Pro tanto. For so much ; to that extent. 
 
 Pro tempore. For the time being ; temporarily. 
 
 Probus et legalis homo. A good and lawful man. 
 
 Procedendo. For proceeding [to judgment]. 
 
 Procedendo ad judicium. For proceeding to judgment. 
 
 Prochein amy. Next friend. 
 
 Procul dubio quod alterum libertas, alterum necessitas impelleret. Because, 
 doubtless, his own free will impelled the one, while necessity impelled the 
 other. 
 
 Proditorie et contra ligeantice suce debitum. Treasonably and against the 
 duty of his allegiance. 
 
 Progressum est ut ad filios deveniret, in quern scilicet dominus hoe vellet 
 beneficium confirmare. It came to pass that it went to the sons, to whichever 
 one, that is, to whom the lord wished to confirm this fief. 
 
 Prope soli barbarorum singulis uxoribus contenti sunt. Almost alone of the 
 barbarians are content, each with one wife. 
 
 Propria manu. With his own hand. 
 
 Propter affectum. On account of bias, (or partiality). 
 
 Propter defectum. On account of defect. 
 
 Propter defectum sanguinis. On account of failure of blood. 
 
 Propter defectum sexus. For defect of sex. 
 
 Propter delictum. On account of crime. 
 
 Propter delictum tenentis. On account of the crime of the tenant. 
 
 Propter honoris respectum. For respect of rank. 
 
 Propter impotentiam. On account of inability. 
 
 Propter odium delicti. On account of the odium of the crime. 
 
 Propter privilegium. By reason of privilege. 
 
 Publici juris. Of public right. 
 
 Puis darreign continuance. Since the last continuance. 
 
 Pur auter vie. For another's life. 
 
 QucB de minimis nan curat. Which does not care for trifles. 
 Qua ipso usu consumuntur. Which are consumed by the use itself. 
 Quce relicta sunt et tradita. Which are left and handed down. 
 Quesdam prcestatio loco relevii in recognitionem domini. A certain pay- 
 ment, instead of a relief, in acknowledgment of the lord. 
 Quantum. How much ; the amount. 
 
X078 APPENDIX. 
 
 Quantum meruit. As much as he has deserved. 
 Quantum valebant. As much as they were worth. 
 
 Quare clausum querentis fregit. Wherefore he broke the close of the 
 complainant. 
 
 Quare ejecit infra terminum. Wherefore he ejected him during the term. 
 
 Quare vi et arniis clausum. ipsius A. apud B. fregit, et blada ipsius A. ad 
 valentiam centum solidorum ibidem nuper crescentia cum guibusdam averiis 
 depastus fuit, conculcavit, et consumpsit, etc. Wherefore by force and arms 
 he broke the close of the said A. at B., and with certain cattle depastured, 
 trampled down, and consumed the crops of the said A., to the value of one 
 hundred shillings, there lately growing, etc. 
 
 Quarto die post. On the fourth day afterwards. 
 
 Quasi agnum committere lupo, ad devorandum. Like committing a lamb 
 to a wolf to be devoured. 
 
 Quatenus. As. 
 
 Querela inofficiosi testamenti. Complaint of an inofficious will, {i.e. one 
 contrary to natural duty). .(See page l6i.) 
 
 Qui alienum fundum ingreditur, potest a domino, si is prceviderit, 
 prohiberi ne ingrediatur. He who enters the ground of another may be 
 forbidden to enter by the owner, if he has foreseen it. 
 
 Qui cadere possit in virum constantem, non timidum et meticulosum. 
 Which may happen to a man that is resolute, not timid and fearful. 
 
 Qui cum aliter tueri se non possunt, damni culpam dederint, innoxii sunt. 
 If those who are not otherwise able to protect themselves, have inflicted 
 injury, they are blameless. 
 
 Qui ex damnato coitu nascuntur, inter liberos non computantur. Those 
 who are born of illicit intercourse are not reckoned among the children. 
 
 Qui facit per alium, facit per se. He who does a thing by another, does 
 it by himself. 
 
 Qui tarn pro domino rege, etc., quam pro se ipso in hac parte sequitur. 
 Who sues, in this behalf, as well for the king, etc., as for himself. 
 
 Qui vi rapuit, fur improbior esse videtur. He who has taken by force, 
 seems to be the more wicked thief. 
 
 Quia emptores. Because purchasers. 
 
 Quia interest reipubliccs ut sit finis litium. Because it is to the advantage 
 of the state that there should be a hmit to litigation. 
 
 Quia non sua culpa, sed parentum, id commisisse cognoscitur. Because 
 she is deemed to have committed it, not through her own fault, but that of 
 her parents. 
 
 Quid pro quo. Something for something. 
 
 Quiddam honorarium. A recompense from gratitude. 
 
 Quinto exactus. Required the fifth time. 
 
 Quo minus sufficiens existit. By which he is less able. 
 
 Quo warranto. By what warrant. 
 
 Quoad hoc. As far as this ; to this extent ; in this respect. 
 
APPENDIX. X079 
 
 Quodab mdibus non facile revellitur. What is not easily severed from a 
 house. 
 
 Quod computet. That he account. 
 
 Quod libera sit cujuscunque ultima voluntas. That the last will of every- 
 one may be free. 
 
 Quod naturalis ratio inter omnes homines constituit, vocaturjus gentium. 
 What natural reason has established among all men is called the law of 
 nations. 
 
 Quod nocumentum amoveatur. That the nuisance may be removed. 
 
 Quod nullius est, id ratione naturali occupanti conceditur. That which 
 belongs to no one is by natural reason conceded to him who takes possession 
 of it. 
 
 Quod ordinarii, hujusmodi bona nomine ecclesia occupantes nullum vet 
 saltern indebitam faciunt distributionem. Because the ordinaries, taking 
 possession of goods of this kind in the name of the church, make no dis- 
 tribution, or at least no due distribution. 
 
 Quod partes replacitent. That the parties replead. 
 
 Quodpermittat prosternere. That he permit [the plaintiff] to abate. 
 
 Quod pcenam imprisonamenti subire non potest. That he cannot undergo 
 the punishment of imprisonment. 
 
 Quod populus postremum jussit, id jus ratum esto. Let that which the 
 people have last decreed be deemed the law. 
 
 Quod principi placuit legis habet vigor em, cum populus ei et in eum omne 
 suum imperium et potestatem conferat. What the emperor has willed has the 
 force of law, since the people transfer to him and upon him all their suprem- 
 acy and power. 
 
 Quod talem eli^ facial, qui melius et sciat, et velit et possit, officio illi inten- 
 dere. That he cause such a one to be chosen as will best have the knowledge, 
 will, and capacity, to administer that office. 
 
 Quorum aliquem vestrum, A, B, C, D, etc., unum esse volumus. Of whom 
 we wish some one of you. A, B, C, D, etc., to be one. 
 
 Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fenda 
 est. Whenever there is no ambiguity in the words, then no exposition should 
 be made contrary to the words. 
 
 ■ Raptus mulierum. Rape of women. 
 
 Ratione impotentice. By reason of inability. 
 
 Ratione soli. By reason of the soil. 
 
 Replegiari facias . Cause to be replevied. 
 
 Respondeat ouster. That he answer over. 
 
 Respondentia. From respondere, to answer, (since the borrower is bound 
 to answer personally). 
 
 Responsa prudentum. Opinions of jurists. 
 
 Restitutor. The restorer. 
 
 Retraxit. He has withdrawn. 
 
io8o APPENDIX. 
 
 Revertendi animum videntur desinere habere tunc, cum revertendi consue- 
 tudinem deseruerint. They are then deemed to cease to have the disposition 
 to return when they have lost the habit of returning. 
 
 Sacerdotes a regibus honorandi sunt, nonjudicandi. Priests are to be hon- 
 ored, not judged, by Icings. 
 
 Sacrilegii instar est rescripto principis obviari. It is like sacrilege to 
 oppose the rescript of the emperor. 
 
 Salvo pudore. Without violation of decency. 
 
 Sanctio justa, jubens honest a, et prohibens contraria. A just decree, com- 
 manding what is right and forbidding the contrary. 
 
 Scandalum magnatum. Slander of great men. 
 
 Scire facias. Cause [A] to know ;(/.«. Give notice to A) . 
 
 Scribere est agere. To write is to act. 
 
 Se defendendo. In defending one's self; in self-defense. 
 
 Secundum cequum et bonum. According to justice and right. 
 
 Seisina facit stipitem. Seizin makes the stock, {i.e. the source of descent). 
 
 Senatus consulta. General laws of the senate. 
 
 Senatus decreta. Special decrees of the senate. 
 
 Servato juris ordine. The requirement of the law being observed. 
 
 Servi nascuntur. They are born slaves. 
 
 Servientes ad legem. Serjeants at law ; {i.e. persons serving in the law). 
 
 Servitia servientium et stipendia famulorum. The services of servants and 
 the stipends of attendants. 
 
 Servus facit, ut herus det ; herusdat, ut servus facial. The servant works, 
 that the master may give ; the master gives, that the servant may work. 
 
 Sextus Decretalium. The sixth of the decretals. 
 
 .Si' equam meam equus tuus pragnantem fecerit, non est tuum sed meum 
 quod tiatum est. If your horse has made my mare pregnant, the offspring is 
 not yours but mine. 
 
 Si non omnes. If not all [can be present, etc.] . 
 
 Si non sequatur ipsius vadii traditio, curia domini regis hujusmodi pri- 
 vatas conventiones tueri non solet. If delivery of the pledge itself does not 
 follow, the king's court is not accustomed to uphold private agreements of 
 this kind. 
 
 Si plura sint debita, vel plus legatum fuerit, ad qua ealalla defuncti non 
 sufficiant, fiat ubique defalcatio, excepto regis privilegio. If more debts are 
 due, or more has been bequeathed, for which the chattels of the deceased are 
 not sufficient, let there be made everywhere a deduction, excepting the privi- 
 lege of the lord the king. 
 
 Si quid tiniversitati debetur, singulis non debetur ; nee, quod debet univer- 
 sitas, singuli debent. If anything is owed to the corporation, it is not owed 
 to the members ; nor do the members owe what the corporation owes. 
 
 Si universitas ad unum- redit, et stet nomen universitatis. If a corporation 
 is reduced to one, the name of corporation may still continue. 
 
APPENDIX. 1081 
 
 Si uxor possit dotem promereri, et virum sustinere. If the wife can earn 
 her dower and support her husband. 
 
 Si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, 
 privabitur. If the vassal has wasted the fief, or has impaired its value by 
 special injury, he shall be deprived of it. 
 
 Sic utere tuo ut alienum non Icedas. So use your own as not to injure 
 another's. 
 
 Simplex obligatio. A simple obligation ; a single bond. 
 
 Sive quis incuria, sixie morte repentina, fuerit intesiatus mortuus, dominus 
 tamen nullam rerum suarum (partem prceter earn, qua jure debetur hereoti 
 nomine) sibi assumito. Verum possessiones uxori, liberis, et cognatione prox- 
 imis, pro sua cuique jure, distribuantur. If any one has died intestate, 
 whether by his neglecU or by sudden death, yet let not the lord take to him- 
 self any part of his property (except that which is justly due to him by the 
 name of heriot). But let his possessions be distributed to his wife, children, 
 and next of kin, to each one according to his right. 
 
 Sive sit masculus sive fcemina. Whether [the heir] be male or female. 
 
 Solvendum in futuro. To be paid in the future. 
 
 Solvit ad diem. He paid on the day. 
 
 Son assault demesne. His own assault. 
 
 Sparsim. Scatteredly; here and there. 
 
 Sponsio judicialis. A judicial wager. (In Roman law, this was an agree- 
 ment between the parties to a lawsuit that the one who lost the suit would 
 pay a certain sum to the winner.) 
 
 Stabitur prcesumptioni donee probetur in contrarium. A presumption will 
 be upheld until the contrary is proved. 
 
 Statuimus, ut omnes liberi homines fcedere et Sacramento affirment, quod 
 intra et extra universum regnum Anglice Wilhelmo regi domino suo fideles 
 esse volunt ; terras et honores illius omni Jidelitate ubique servare cum eo, et 
 contra inimicos et alienigenas defendere. We decree that all free men affirm 
 by covenant and by oath that within and without the whole realm of England 
 they will be faithful to William the king, their lord ; and will with him every- 
 where protect his lands and honors with all fidelity, and defend him against 
 enemies and aliens. 
 
 (TTopyi^. Love ; affection. 
 
 Stricti juris. Of strict right ; of strict construction in law. 
 
 Sub modo. Under a qualification ; in a qualified way. 
 
 Subpoena ad testificandum. A subpoena to testify. 
 
 Successionis feudi talis est natura, quod ascendentes non succedunt. The 
 nature of the succession of a feud is such that ancestors do not take by 
 succession. 
 
 Summa providentia. The greatest forethought. 
 
 Super visum corporis. Upon view of the body. 
 
 Supersedeas. That you supersede. 
 
 Suum cuique incomntodum ferendum est,poiius quant de alterius comtnodis 
 
io82 APPENDIX. 
 
 detrahendum. Every one must bear his own disadvantage rather than take 
 from the advantages of another. 
 
 Syngrapha. Deeds written together. (From avv together, and ypa.<l><i>, to 
 write.) 
 
 Tacito et illiterato hominum consensu et moribus expressum. Expressed 
 by the tacit and unwritten consent and customs of men. 
 
 Tales de circumstantibus . Such men from the bystanders. 
 
 Tarn immensus aliarum super alias acervatarum legum cumulus. So 
 immense a heap of laws piled one above another. 
 
 Tanquam testamentum inofficiosum. As an inofScious testament. (See 
 page i6i.) 
 
 Tenendum per servitmm militare, in burgagio, in libera socagio, etc. To 
 be held by knight service, in burgage, in free socage, etc. 
 
 Tenor est qui legem dat feudo. It is the tenor which gives law to the fief; 
 (i.e. the language limiting the feudal grant governs its effect and extent in law). 
 
 Terminus a quo. The limit from which ; the starting-point. 
 
 TerrcE dominicales. Lands of the lord ; demesne lands. 
 
 Terre-tenant. Tenant of the land. 
 
 Tertia. A third part. 
 
 Testamenti executores esse debent ii, guos testator ad hoc elegerit, et quibus 
 curam ipse commiserit ; si vera testator nullos ad hoc nominaverit, possunt 
 propinqui et consanguinei ipsius defuncti ad id faciendum se ingerere. The 
 executors of a will ought to be those whom the testator has selected for this 
 purpose and to whom he has himself committed the charge ; but if the testator 
 has named" none for this trust, the kinsmen and blood-relatives of the 
 deceased may undertake its discharge. 
 
 Testatio mentis. A testifying of the intention. 
 
 Testatum est. It is witnessed. 
 
 Teste comitatu, hundredo, etc. Witness the county, hundred, etc. 
 
 Teste meipso. Witness myself. 
 
 Titulus est justa causa possidendi id quod nostrum, est. Title is the right- 
 ful ground of possessing that which is ours. 
 
 Traditio nihil aliud est quam rei corporalis de persona in personam, de 
 manu in manuTn, translatio aut in possessionem, inductio : sedres incorporales, 
 qua sunt ipsum jus rei vel corpori inhcerens, traditionem 7ton patiuntur. 
 Livery is nothing else than the transfer from person to person, from hand 
 to hand, of a corporeal thing, or the induction into its possession ; but 
 incorporeal things, which are the right itself inherent in a thing or in a body, 
 do not admit of livery. 
 
 Trans Tiberim. Across the Tiber. 
 
 Tres faciunt collegium. Three make a corporation. 
 
 Triens. A third part. 
 
 Trina admonitio. A triple admonition. 
 
 Trinodanecessitas. The threefold necessity, (of obligation). 
 
APPENDIX. 
 
 1083 
 
 Ubi nullum matrimonium, ibi nulla dos. Where there is no marriage, there 
 is no dower. 
 
 Ubicunque fuerimus in Anglia. Wherever we may be in England. 
 
 Ultimum supplicium. The extremest punishment, {i.e. death). 
 
 Ultimus hares. The last heir. 
 
 Un disposition a f aire un male chose. A disposition to do an evil deed. 
 
 Usura maritima. Maritime interest. 
 
 Utfeudum antiquum. As an ancient feud. 
 
 Ut feudum paternum. As a paternal feud. 
 
 Utfeudum stride novum. As a feud strictly new. 
 
 Ut liberum tenementum. As a freehold. 
 
 Ut martius populus aliquid sibi terra daret, quasi stipendium ; caterum, 
 ut vellet, manibus atfUe armis suis uteretur. That the warlike people (i.e. 
 the Roman people) should give to them some land as a stipend, and in 
 return make use of their lands and their weapons, as they (i.e. the' Romans) 
 wished. 
 
 Ut poena ad paucos, metus ad omnes, perveniat. That punishment rhay 
 come to few, fear to all. 
 
 Ut res magis valeat, quam pereut. That the matter may rather avail, than 
 perish. 
 
 Valor maritagii; valorem maritagii. Value of the marriage. 
 
 Venditio per mutuam manuum complexionem. Sale by the mutual clasping 
 of hands. 
 
 Venire; venire facias . That you cause to come. 
 
 Verba fortius accipiuntur contra proferentem. Words are to be taken 
 most strongly against the one using them. 
 
 Verba intentioni debent inservire. Words ought to subserve the intention. 
 
 Veritatem dicer e. To speak the truth. 
 
 Vi et armis. By force and arms. 
 
 Victus victori in expensis condemnandus est. The loser must be adjudged 
 to pay the expenses to the winner. 
 
 Viginti annorum lucubrationes. The lucubrations of twenty years. 
 
 Vilis. Of little value ; cheap ; mean ; base. 
 
 Villana faciunt servitia, sed certa et determinata. They perform villein 
 services, but certain and determinate. 
 
 Vinculum personarum ab eodem stipite descendentium. The connection of 
 persons descending from the same stock. 
 
 Vindices injuriarum. The avengers of injuries. 
 
 Virtute officii. By virtue of his office. 
 
 Viva voce. By the living voice ; by word of mouth. 
 
 Voir dire. To speak the truth. 
 
 Voluntarius damon. A voluntary madman. 
 
 Voluntas regis in curia, non in camera. The will of the king in his court, 
 not in his chamber. 
 
1084 
 
 APPENDIX. 
 
 III. 
 
 A Table of English Regnal Years. 
 
 The following table will be serviceable to the student in ascertaining when the 
 rarious English statutes, cited in the text, were enacted. 
 
 Sovereigns. 
 
 Commencement of Reign. 
 
 Length 
 OP Reign. 
 
 William I 
 
 October 14, 1066 
 
 21 
 
 William II 
 
 September 26, 1087 
 
 13 
 36 
 19 
 35 
 10 
 
 
 
 
 
 Henry II 
 
 Richard I 
 
 
 September 3, 1189 
 
 Mav 27. iloQ 
 
 John 
 
 18 
 
 Henrv III 
 
 October 28, 1216 
 
 57 
 35 
 
 20 
 
 Edward I 
 
 November 16, 1272 
 
 Edward II 
 
 Tulv 8 1^07 
 
 Edward III 
 
 
 51 
 23 
 14 
 
 Richard II 
 
 
 Henry IV 
 
 Seotember ^0. I "^qq 
 
 
 
 Henry VI 
 
 September i, 1422 
 
 39 
 23 
 
 Edward IV 
 
 March A. ld.61 
 
 Edward V 
 
 Aoril \^'K 
 
 Richard III 
 
 Tune 26 1483 
 
 3 
 
 24 
 
 38 
 
 7 
 
 6 
 
 Henry VII 
 
 August 22, 1485 
 
 Henry VIII 
 
 Edward VI 
 
 
 Mary 
 
 fulv 6. 'i^^'\ 
 
 Elizabeth 
 
 November 17, 1558 
 
 45 
 23 
 24 
 
 James I 
 
 March 2J. 160^ 
 
 
 
 
 
 
 May 29, 1660 
 
 37 
 4 
 14 
 13 
 13 
 34 
 60 
 
 James II 
 
 February 6, 1685 
 
 
 February 13, 1689 
 
 
 
 
 
 
 George III 
 
 October 25, 1760 
 
 George IV 
 
 January 20, 1820 
 
 n 
 
 William IV 
 
 Tune 26. 18^0 ... 
 
 7 
 
 
 
 
 
 
 * Although Charles II. did not ascend the throneuntil 1660, 29th May, his regnal years were 
 computed from the death of Charles I., January 30, 1649, so that the year of his restoration ii 
 styled the twelfth of bis reign. 
 
APPENDIX. 
 
 IV. 
 
 1085 
 
 Abbreviations used in citing English, American, etc.. Reports. 
 
 Well-known abbreviations, such as those of the States in this country, are 
 omitted. In this table, Dist. denotes District; Eng., England; Ch., Chancery; 
 H. L., House of Lords; C. P., Common Pleas; K. B. or Q. B., King's or Queen's 
 Bench; Exch., Exchequer; N. P., Nisi Prius. 
 
 Only the usual abbreviations are given in this table; but various others are in 
 use, so that the student may need to examine all the titles under a particular letter 
 liefore finding the name of the Report for which he is seeking. — See also Supple- 
 mentary List at the end of this Table. 
 
 A. and E., or Ad. 
 
 and El Adolphus and Ellis's Reports, Q. B. Eng. 
 
 A. and E. N. S Adolphus and Ellis's Reports, New Series, commonly 
 
 quoted as Queen's Bench Reports. 
 
 A. and H Arnold and Hodge's Reports, K. B. Eng. 
 
 Abb. Adm Abbott's Admiralty Reports, Southern Dist. of N. Y. 
 
 Abb. Dec Abbott's Decisions (Ct. of Appeals, N. Y.). 
 
 Abb. N. C Abbott's New Cases, N. Y. 
 
 Abb. Pr. .Abbott's Practice Reports, N. Y. 
 
 Abb. Pr. N. S Abbott's Practice Reports, New Series, N. Y. 
 
 Abb. U. S Abbott's Reports of Cases in U. S. Circuit and Dist. Cts. 
 
 Abr. Cas. Eq Equity Cases Abridged, Eng. 
 
 Act. or Acton Acton's Privy Council Reports, Eng. 
 
 Add. Eccl Addam's Ecclesiastical Reports, Eng. 
 
 Add. Penn Addison's Reports, Pa. 
 
 Adm. and Ecc English Law Reports, Admiralty and Ecclesiastical. 
 
 Aik Aiken's Reports, Vt. 
 
 A. K. Marsh A. K. Marshall's Reports, Ky. 
 
 Al. and N Alcock and Napier's Reports, K. B. Ireland. 
 
 Alb. L. J Albany Law Journal, N. Y. 
 
 Aleyn Aleyn's Select Cases, K. B. Eng. 
 
 All. or Allen Allen's Reports (83-0 Mass.). 
 
 Allen, N. B Allen's New Brunswick Reports. 
 
 Amb Ambler's Reports, Chancery, Eng. 
 
 Am. Dec American Decisions. 
 
 Am. Rep American Reports. 
 
 Ames Ames' Reports (4-7 R. I .). 
 
 And Anderson's Reports, C. P. Eng. 
 
 Andr Andrew's Reports, K. B. Eng. 
 
 Ang Angell's Reports (i R. I.). 
 
 Anst Anstruther's Reports, Exch. Eng. 
 
 Anth. N. P Anthon's Nisi Prius Cases, N. Y. 
 
 App. Cas Appeal Cases, English Law Reports 
 
 Appleton Appleton's Reports (ig, 20 Me.). 
 
 Arkley Arkle/s Justiciary Reports, Scotch. 
 
io86 APPENDIX. 
 
 Arms. M. and O. . . .Armstrong, Macartney and Ogle's Reports, N. P. Ireland 
 
 Am Arnold's Reports, C. P. Eng. 
 
 Arn. and Hod Arnold and Hodge's Reports, Q. B. Eng. 
 
 Ashm Ashmead's Reports, Pa. 
 
 Atk Atkyn's Reports, Chancery, Eng. 
 
 B. and Ad Barnewell and Adolpbus's Reports, K. B. Eng. 
 
 B. and A., or B. and 
 
 Aid Barnewell and Alderson's Reports, K. B. Eng. 
 
 B. and B Broderip and Bingham's Reports, C. P. Eng. 
 
 B. and C, or Barn. 
 
 and Cr Barnewell and Creswell's Reports, K. B. Eng. 
 
 B. and P., or Bos. 
 
 and P Bosanquet and Puller's Reports, C. P. Eng. 
 
 B. and P., N. R Bosanquet and Puller's New Reports, C. P. En^. 
 
 B. and S Best and Smith's Reports, Q. B. Eng. 
 
 B. Mon Ben Monroe's Reports, Ky. 
 
 Bailey Bailey's Reports, S. C. 
 
 Bailey Eq Bailey's Equity Reports, S. C. 
 
 Bald Baldwin's Reports, 3d Circuit, U. &. 
 
 Ball and B Ball and Beatty's Reports, Irish Chancery. 
 
 Bann. and Ard Banning and Arden's Patent Cases, U. S. 
 
 Barber Barber's Reports (14-24 Ark.). 
 
 Barb Barbour's Reports, Supreme Ct., N. Y. 
 
 Barb. Ch Barbour's Chanceiy Reports, N. Y. 
 
 Barn Barnardiston's Reports, K. B. Eng. 
 
 Barn. Ch Barnardiston's Chancery Reports, Eng. 
 
 Barnes Barnes' Notes, C. P. Eng. 
 
 Barr Barr's Reports (i-io Pa. St.). 
 
 Batt Batty's Reports, Ireland. 
 
 Baxt Baxter's Reports, Teno. 
 
 Bay Bay's Reports, S. C. 
 
 Beas Beasley's Chancery Reports (12 and 13 N. J, Eq.). 
 
 Beatt Beatty's Reports, Irish Chancery. 
 
 Beav Beavan's Chancery Reports, Eng. 
 
 Bee Bee's Reports, U. S. (Dist. of S. C). 
 
 Bell Ap. Cas Bell's Appeal Cases, House of Lords. 
 
 Bell 0. C Bell's Crown Cases Reserved, Eng. 
 
 Bel. or Bellewe Bellewe's Cases temp. Rich. II., Eng. 
 
 Ben Benedict's Reports, U. S. (Dist. of N. Y.). 
 
 Benl Benloe's Reports, K. B. Eng. 
 
 Benl. C. P Benloe's Reports, C. P. Eng. 
 
 Best and S Best and Smith's Reports, Q. B. Eng. 
 
 Bibb Bibb's Reports, Ky. 
 
 Bing; Bingham's Reports, C. P. Eng. 
 
 Bing. N. C Bingham's New Cases, C. P. Eng. 
 
 Binn Binney's Reports, Pa. 
 
 Hiss Bissell's Reports, 7th Circuit, U. S. 
 
 Bl. and H Blatchford and Rowland's Reports, U. S. (Dist. of N. Y ). 
 
APPENDIX. 1087 
 
 Bl. R Blackstone's (Wm.) Reports, K. B. Eng. 
 
 Black Black's Reports, Supreme Court, U. S. 
 
 Blackf Blackford's Reports, Ind. 
 
 Bland Ch Bland's ChSincery Reports, Md. 
 
 Blatchf Blatchford's Reports, 2d Circuit, U. S. 
 
 Blatchf. Pr. Cas Blatchford's Prize Cases, U. S. (Dist. of N. Y.). 
 
 Bli. or Bligh Bligh's Reports, House of Lords, Eng. 
 
 Bli. N. S . .- Bligh's Reports, New Series, House of Lords, Eng. 
 
 Bond Bond's Reports, 6th Circuit, U. S. 
 
 Bosw Bosworth's Reports, Superior Court, N. Y. 
 
 Br. and Lush Browning and Lushington's Admiralty Reports, Eng. 
 
 Bradf Bradford's Surrogate Reports, N. Y. 
 
 Bradf. (la.) Bradford's Reports, Iowa (reprinted in 2d ed. of Morris), 
 
 Bradw Brad well's Appellate Reports, 111. 
 
 Brayt Brayton's Reports, Vt. 
 
 Breese Breese's Reports, 111. 
 
 Brev Brevard's Reports, S. C. 
 
 Brewst Brewster's Reports, Pa. 
 
 Bridg Bridgman's Reports, C. P. Eng. 
 
 Bridg. O O. Bridgman's Reports, C. P. Eng. 
 
 Bright Brightly 's Reports, Pa. 
 
 Bro. Abr Brooke's Abridgment, Eng. 
 
 Bro. Adm Brown's Admiralty Reports, l/. S. Dist. Courts. 
 
 Brock Brockenbrough's Reports, 4th Circuit, U. S. 
 
 Bro. N. C Brook's New Cases, K. B. Eng. 
 
 Bro. or Br. C. C. . . .Brown's Chancery Cases, Eng. 
 
 Bro. P. C Brown's Parliamentary Cases, Eng. 
 
 Bro. and B Broderip and Bingham's Repor:s, C. P. Eng. 
 
 Brown, N. P Brown's Nisi Prius Reports, Mich. 
 
 Browne Browne's Reports, Pa. 
 
 Brownl Brownlow's Reports, Eng. 
 
 Brownl. and G Brownlow and Goldsborough's Reports, C. P. Eng,, 
 
 Buck Buck's Bankruptcy Cases, Eng, 
 
 Buff. Spr. Ct Buffalo Superior Court Reports, N. Y. 
 
 Bui. N. P., orB. N. 
 
 P Buller's Nisi Prius, Eng. 
 
 Bulst Bulstrode's Reports, K. B. Eng. 
 
 Bunb Bunbury's Reports, Exch. Eng. 
 
 Burnett Burnett's Reports, Wis. (reprinted in I Pinney). 
 
 Burr Burrow's Reports, K. B. Eng. 
 
 Busb Bnsbee's Law Reports, N. C. 
 
 Busb. Eq Busbee's Equity Reports, N. C. 
 
 Bush Bush's Reports, Ky. 
 
 C. B Common Bench Reports, Eng. (the first eight by Manning, 
 
 Granger, and Scott ; the ninth, by Manning and Scott ; 
 the rest, viz., the tenth to eighteenth, by Scott). 
 
 C. B. N. s Common Bench Reports, New Series, Eng. 
 
 C. and K Carrington and Kirwan's Reports, N. P. Eng. 
 
io88 APPENDIX. 
 
 C. and M Carrington and Marshman's Reports, N. P. Eng. (See 
 
 Cromp. and M.) 
 
 C. and P Carrington and Payne's Reports, N. P. Eng. 
 
 C. E. Gr C. E. Green's Reports (16-27 N. J. Eq.). 
 
 C. H. Rec City Hall Recorder Reports, N. Y. City. 
 
 C. M. and R (See Crcmp. M. and R.) 
 
 C. P. D Common Pleas Division, English Law Reports. 
 
 C. Rob. Adm C. Robinson's Admiralty Reports, Eng. 
 
 Cai. or Caine's Caine's Reports, N. Y. 
 
 Cai. Cas Caine's Cases in Error, N. Y. 
 
 Call Call's Reports, Va. 
 
 Calth Calthrop's Reports, K. B. Eng. 
 
 Cam. and Nor Cameron and Norwood's Reports, N. C 
 
 Campb Campbell's Reports, N. P. Eng. 
 
 Car. and K (See C. and K.) 
 
 Car. and M (See C. and M.) 
 
 Car. and P (See C. and P.) 
 
 Car. or Cart Carter's Reports, Ind. 
 
 Cart Carter's Reports, C. P. Eng. 
 
 Carth Carthew's Reports, K. B. Eng. 
 
 Cary Gary's Reports, Chancery, Eng. 
 
 Cas. Ch Cases in Chancery, Eng. 
 
 Cas. Temp. Hardvy.Cases tempore Hardwick, Chancery, Eng. 
 Cas. Temp. Talb. . .Cases tempore Talbot, Chancery, Eng. 
 Cas. Temp. Sugd. . .Cases tempore Sugden, Chancery, Ireland. 
 
 Casey. . Casey's Reports (25-36 Pa. State). 
 
 Ch. Div Chancery Division, English Law Reports. 
 
 Ch. Rep Reports in Chancery, Eng. 
 
 Chase Chase's Decisions, 4th Circuit, U. S. 
 
 Chand. Wis Chandler's Wisconsin Reports (reprinted in 2 and 3 Pimiey). 
 
 Charjt T. U. P. Charlton's Reports, Ga. 
 
 Charlt. R. M R. M. Charlton's Reports, Ga. 
 
 Chev Cheves's Reports, S. C. 
 
 Chev. Eq Cheves's Equity Cases, S. C. 
 
 Chip. D D. Chipman's Reports, Vt. 
 
 Chip. N N. Chipman's Reports, Vt. 
 
 Chit. R Chitty's Reports (Bail Ct., Eng.). 
 
 Cin. S. C. Rep Cincinnati Supreme Ct. Reports. 
 
 City Ct. Rep City Court Reports, N. Y. City. 
 
 CI. and Fin Clark and Finnelly, House of Lords Reports, Eng, 
 
 Clarke Clarke's Chancery Reports, N. Y. 
 
 Clarke (la.) Clarke's Reports (1-8 la.). 
 
 Clif Clifford's Reports, Xst Circuit, U. S. 
 
 Co Coke's Reports, K. B. Eng. 
 
 Cobb Cobb's Reports, Ga. 
 
 Code Rep Code Reporter, N. Y. 
 
 Col. Cas Coleman's Cases, N. V. 
 
 Col. and C Coleman and Caines's Cases, N. Y. 
 
APPENDIX. 1089 
 
 Cold Coldwell's Reports, Tenn. 
 
 Coll. or Coll. C. C. .Coliyer's Reports, Chancery, Eng. 
 
 Colles Coiles's Cases in Parliament, Eng. 
 
 Com. or Comyn Comyn's Reports, K. B. Eng. 
 
 Comb Comberbach's Reports, K. B. Eng. 
 
 Corns)! Comstock's Reports (r-4 N. Y.). 
 
 Con. and L Connor and Lawson's Reports, Irish Chancery. 
 
 Const. Rep Reports of Constitutional Court, S. C. 
 
 Cooke, C. P Cooke's Reports, C. P. Eng. 
 
 Cooke, Tenn Cooke's Tennessee Reports. 
 
 Cooke and Al Cooke and Alcock's Reports, K. B. Ireland. 
 
 Coop. Ch Cooper's Reports, Chancery, Tenn. 
 
 Coop. Pr. Cas Cooper's Practice Cases, Eng. 
 
 Coop.Temp. Brough. Cooper's Reports tempore Brougham, Chancery, Eng. 
 Coop. Temp. Cott. .Cooper's Reports tempore Cottenham, Chancery, Eng. 
 
 Cow Cowen's Reports, N. Y. (Supreme Ct. and Ct. of Errors). 
 
 Cowp Cowper's Reports, K. B. Eng. 
 
 Cox, Ch Cox's Reports, Chancery, Eng. 
 
 Cox, C. C Cox's Crown Cases, Eng. 
 
 Coxe Coxe's Reports (i N. J. Law). 
 
 Crabbe Crabbe's Reports, U. S., East Dist. Pa. 
 
 Cr. and Phil Craig and Phillips' Reports, Chancery, Eng. 
 
 Cr. and St Craigie and Stewart's Reports, House of Lords (Scotch). 
 
 Cr. or Cranch Cranch's Reports, Supreme Court, U. S. 
 
 Cr. C. C, or Cranch 
 
 C. C Cranch's Circuit Court Reports, U. S. (District Columbia). 
 
 Critchf. Critchfield's Reports (5-21 O. St.). 
 
 Cro. Car Croke's Reports, time of Charles I., K. B. Eng. 
 
 Cro. Eliz Croke's Reports, time of Elizabeth, Q. B. Eng. 
 
 Cro. Jac Croke's Reports, time of James I., K. B. Eng. 
 
 Cromp. and J., or C. 
 
 and J Crorapton and Jervis's Reports, Exch. Eng. 
 
 Cromp. and M., or C. ' 
 
 and M Crompton and Meeson's Reports, Exch. Eng. 
 
 Cromp. M. and R., 
 
 or C. M. and R. .Crompton, Meeson and Roscoe's Reports, Exch. Eng, 
 
 Ct. CI Court of Claims Reports, U. S. 
 
 Cun Cunningham's Reports, K. B. Eng. 
 
 Curt. C. C Curtis's Reports, ist Circuit, U. S. 
 
 Curt. Ecc Curteis's Ecclesiastical Reports, Eng. 
 
 Cush Cushing's Reports (55-66 Mass.). 
 
 Cushm Cushman's Reports (23-29 Miss.). 
 
 D. Chip D. Chipman's Reports, Vt. 
 
 Dal Dalison's Reports, C. P. Eng. 
 
 Dall Dallas's Reports, Supreme Court, U.S. (also contains 
 
 Pa. Cases). 
 
 Dall., Tex Dallam's Reports, Tex. 
 
 Daly Daly's Reports, Common Pleas, N. Y. 
 
 70 
 
I09O APPENDIX. 
 
 Dan. Ex Daniell's Reports, Exch. Eng. 
 
 Dana Dana's Reports, Ky. 
 
 Davies Davies's Reports, U. S. Dist. Courts. 
 
 Dav. and Mer Davison and Merivale's Reports, Q. B. Eng. 
 
 Day Day's Reports, Conn. 
 
 Dea. and Sw Deane and Swabey's Reports, Probate and Divorce, Eng, 
 
 Deac Deacon's Bankruptcy Reports, Eng. 
 
 Deac. and C Deacon and Chitty's Bankruptcy Reports, Eng. 
 
 Deady Deady's Reports, gth Circuit, U. S. 
 
 Deane Deane's Ecclesiastical Reports, Eng. 
 
 Dears Dearsley's Crown Cases Reserved, Eng. 
 
 Dears, and B Dearsley and Bell's Crown Cases Reserved, Eng. 
 
 De G. Bank De Gex's Bankruptcy Cases, Eng. 
 
 De G. F. and J De Gex, Fisher and Jones's Chancery Reports, Eng. 
 
 De G. and J De Gex and Jones's Chancery Reports, Eng. 
 
 De G. J. and S De Dex, Jones and Smith's Chancery Reports, Eng. 
 
 De G. J. and S. 
 
 Bank De Gex, Jones and Smith's Bankruptcy Cases, Eng. 
 
 De G. M. and G. . . .De Gex, Macnaghten and Gordon's Chancery Rep's, Eng. 
 De G. M. and G. 
 
 Bank De Gex, Macnagliten and Gordon's Bankruptcy Cases. 
 
 De G. and Sm De Gex and Smale's Chancery Reports, Eng. 
 
 Den. or Denio Denio's Reports, N. Y. (Supreme Ct. and Ct. of Errors). 
 
 Den. C. C Denison's Crown Cases, Eng. 
 
 Des. or Desaus Desaussure's Equity Reports, S. C. 
 
 Dev Devereux's Law Reports, N. C. 
 
 Dev. Ct. CI Devereux's Reports (U. S. Court of Claims). 
 
 Dev. Eq Devereux's Equity Reports, N. C. 
 
 Dev. and Bat Devereux and Battle's Reports, N. C. 
 
 Dev. and Bat. Eq. . .Devereux and Battle's Equity Reports, N. C. 
 
 Dick Dickens's Reports, Chancery, Eng. 
 
 Dill Dillon's Reports, 8th Circuit, U. S. 
 
 Disney Disney's Reports, Ohio. 
 
 Dods Dodson's Admiralty Reports, Eng. 
 
 Dom. Proc Domus Procerum, Cases in the House of Lords, Eng, 
 
 Donn Donnelly's Reports, Chancery, Eng. 
 
 Doug Douglas's Reports, K. B. Eng. 
 
 Doug. Mich Douglass's Michigan Reports. 
 
 Dow, or Dow P. C. .Dow's Reports in Parliament, Eng. 
 
 Dow and C Dow and Clark, House of Lords Cases, Eng. 
 
 Dow. and Ry., or D. 
 
 and R Dowling and Ryland's Reports, K. B. Eng. 
 
 Dow. and Ry. N. P. Dowling and Ryland's Nisi Prius Reports, Eng. 
 
 Dowl. P. C Dowling's Practice Cases, Eng. 
 
 Dowl. N. S Dowling's Practice Cases, New Series, Eng. 
 
 Dr. and Wal Drury and Walsh's Chancery Reports, Ireland. 
 
 Dr. and War Drury and Warren' Chancery Reports, Ireland, 
 
 Drew Drewry's Chancery Reports, Eng. 
 
APPENDIX. 109, 
 
 Drew, and Sm Drewry and Smale's Reports, Chancery, Eng. 
 
 Drink Drinkwater's Reports, C. P. Eng. 
 
 Drury Diury's Reports, Chancery, Ireland. 
 
 Dudley Dudley's Reports, Ga. 
 
 Dudley, S. C Dudley's Reports, S. C. 
 
 Dudley Eq Dudley's Equity Reports, S. C. 
 
 Duer Duer's Reports, Superior Court, N. V. 
 
 Durf. Durfee's Reports, R. I. 
 
 Durn. and East Same as " Term Reports." 
 
 Dutch Butcher's Reports (25-29 N. J. Law). 
 
 Duv Duvall's Reports, Ky. 
 
 Dy. or Dyer Dyer's Reports, K. B. Eng. 
 
 E. D. Sm E. D. Smith's Reports, Common Pleas, N. Y. 
 
 E. L. R See L. R., A. and E., etc. 
 
 East East's Reports, K. B. Eng. 
 
 Eden Eden's Reports, Chancery, England. 
 
 Edm. Sel. Cas Edmond's Select Cases, N. Y. 
 
 Edw. Adm Edwards's Admiralty Reports, Eng. 
 
 Edw. Ch Edwards's Chancery Reports, N. Y. 
 
 El. and Bl Ellis and Blackburn's Reports, Q. B. Eng. 
 
 El. B. and E Ellis, Blackburn and Ellis's Reports, Q. B. Eng. 
 
 El. and El Ellis and Ellis's Reports, Q. B. Eng. 
 
 Eng English's Reports (6-13 Ark.). 
 
 Eng. L. and E English Law and Equity Reports. 
 
 E. P. Smith E. P. Smith's Reports (15-27 N. Y.). 
 
 Eq. Ca. Abr Equity Cases Abridged, Eng. 
 
 Esp. or Esp. N. P. .Espinasse's Reports, N. P. Eng. 
 
 Exch Exchequer Reports, Eng. (by Welsby, Hurlstone and 
 
 Gordon). 
 Ex. D Exchequer Division, English Law Reports. 
 
 F. and F Foster and Finlason's Reports, N. P. Eng. 
 
 F. N. B Fitzherbert's Natura Brevium. 
 
 Fairf Fairfield's Reports (10-12 Me.). 
 
 Fed. Rep Federal Reporter (U. S. Circuit and District Courts). 
 
 Ferg Ferguson's Reports, Scotch. 
 
 Finch Ch Finch's Chancery Reports, Eng. 
 
 Finch, or Finch L. .Finch's Law. 
 
 Fish. Pat. Cas Fisher's Patent Cases, U. S. 
 
 Fish. Pat. Rep Fisher's Patent Reports, U. S. 
 
 Fish. Pr. Cas Fisher's Prize Cases, U. S. (Dist. of Pa.). 
 
 Fitzg Fitzgibbon's Reports, K. B. Eng. 
 
 Flip Flippin's Reports, 6th Circuit, U. S. 
 
 Fogg Fogg's Reports (32-37 N. H.). 
 
 For Forrest's Reports, Exchequer, Eng. 
 
 Fort, de Laud Fortescue de Laudibus Anglise Legum. 
 
 Fort, or Fortes Fortescue's Reports, K. B. Eng. 
 
 Fost Foster's Reports (21-31 N. H.). 
 
 Fost. and F Foster and Finlason's Reports, N. P. Eng. 
 
109J APPENDIX. 
 
 Free. Ch Freeman's Chancery Reports, Eng. 
 
 Freem Freeman's Reports, K. B. Eng. 
 
 Freem. (111.) Freeman's Reports (31-103 III.). 
 
 Freem. Miss Freeman's Reports, Chancery, Miss. 
 
 G. and J Gill and Johnson's Reports, Md. 
 
 G. and J Glyn and Jameson's Bankruptcy Reports, Eng 
 
 Ga. Dec Georgia Decisions. 
 
 Gale Gale's Reports, Exchequer, Eng. 
 
 Gale and Dav Gale and Davison's Reports, K. B. Eng. 
 
 Gall, or Gallis Gallison's Reports, ist Circuit, U. S. 
 
 George George's Reports (30-39 Miss.). 
 
 Gif Giffard's Reports, Chancery, Eng. 
 
 Gilb. Cas. Gilbert's Cases in Law and Equity, Eng. 
 
 Gilb. Ch Gilbert's Chancery Reports, Eng. 
 
 Gill Gill's Reports, Md. 
 
 Gill and J Gill and Johnson's Reports, Md. 
 
 Gilm Gilman's Reports (6-10 111.). 
 
 Gilmer. Gilmer's Reports, Va. 
 
 Gilpin Gilpin's Reports, Dist. of Pa., U. S. 
 
 Godb Godbolt's Reports, K. B. Eng. 
 
 Golds Goldesborough's Reports, K. B, Eng. 
 
 Gow N. P Gow's Nisi Prius Cases, Eng. 
 
 Grant Grant's Reports, Fa. 
 
 Grat Grattan's Reports, Va. 
 
 Gray Gray's Reports (67-82 Mass.). 
 
 Green, N. J Green's Reports (13-15 N. J. Law). 
 
 Green Ch Green's Chancery Reports (2-4 N. J. Eq.). 
 
 Greene, C. E C. E. Greene's Reports (16-27 N. J. Eq.). 
 
 Greene, la Greene's Reports, Iowa. 
 
 Greenl. Greenleaf s Reports (1-9 Me.). 
 
 H. Bl Henry Blackstone's Reports, C. P. Eng. 
 
 H. L. Cases House of Lords Cases, Eng. 
 
 H. and C Hurlstone and Coltman's Reports, Exch. Eng. 
 
 H. and G., or Har. 
 
 and G Harris and Gill's Reports, Md. 
 
 H. and H Horn and Hurlstone's Reports, Exch. Eng. 
 
 H. and J., or Har. 
 
 and J Harris and Johnson's Reports, Md. 
 
 H. and McH Harris and McHenry's Reports, Md. 
 
 H. and N Hurlstone and Norman's Reports, Exch. Eng. 
 
 H. and R Harrison and Rutherfurd's Reports, C. P. Eng. 
 
 H. and Tw Hall and Twell's Chancery Reports, Eng. 
 
 Hr-and W Harrison and WoUaston's Reports, K. B. Eng. 
 
 H. and W Hurlstone and Walmsley's Reports, Exch. Eng. 
 
 Hag. Adm > Haggard's Admiralty Reports, Eng. 
 
 Hag. Con Haggard's Consistory Reports, Eng. 
 
 Hag. Ec. or Hagg. .Haggard's Ecclesiastical Reports, Eng. 
 Hall Hall's Reports, Superior Court, N . Y. 
 
APPENDIX. 1093 
 
 alst Halsted's Reports (6-12 N. J. Law^ 
 
 alst. Ch Halsted's Reports (5-8 N. J. Eq.). 
 
 am Hammond's Reports (1-9 Ohio). 
 
 and Hand's Reports (40-45 N. Y.). 
 
 andy Handy's Reports, Ohio. 
 
 ardin Hardin's Reports, Ky. 
 
 ardr. or Hard. . . Hardres's Reports, Exch. Eng. 
 
 are Hare's Reports, Chancery, Eng. 
 
 arg. St. Tr Hai^rave's State Trials, Eng. 
 
 arper Harper's Reports, S. C. 
 
 arper's Eq Harper's Equity Reports, S. C. 
 
 arr Harrington's Reports, Del. 
 
 arr. Ch .Harrington's Chancery Reports, Mich. 
 
 arr. N. J Harrison's Reports (i6-ig N.J. Law). 
 
 arris Harris's Reports (13-24 Pa. St.). 
 
 awks Hawks's Reports, N. C. 
 
 ayw Haywood's Reports, N. C. and Tenn. 
 
 ead Head's Reports, Tenn. 
 
 eisk Heiskell's Reports, Tenn. 
 
 em. and M Hemming and Miller, Chancery, Eng. 
 
 enip Hempstead's Reports, 8th Circuit, U. S. 
 
 en. and Munf. . . .Hening and Munford's Reports, Va. 
 
 et Hetley's Reports, C. P. Eng. 
 
 ill Hill's Reports, N. Y. (Supreme Ct. and Ct. of Errors^ 
 
 ill and D Hill and Denio's Supplement, N. Y. 
 
 ill Ch , Hill's Chancery Reports, S. C. 
 
 ill S. C Hill's South Carolina Reports. 
 
 ilt Hilton's Reports, Common Pleas, N. Y. 
 
 ob Hobart's Reports, K. B. Eng. 
 
 odg. Hodge's Reports, C. P. Eng. 
 
 off Hoffman's Chancery Reports, N. Y. 
 
 olmes Holmes' Reports, ist Circuit, U. S. 
 
 olt . Holt's Reports, K. B. Eng. 
 
 olt Eq Holt's Equity Reports, Eng. 
 
 olt N. P Holt's Nisi Prius Reports, Eng. 
 
 opk Hopkin's Reports, Chancery, N. Y. 
 
 ous. Houston's Reports, Del. 
 
 ous. Cr Houston's Criminal Reports, DeL 
 
 ov. Suppl Hovenden's Supplement to Vesey, Jr. 
 
 ow. or How. U. S. Howard's Reports, Supreme Court, U. S. 
 
 ow. Cas Howard's Court of Appeals Cases, N. Y. 
 
 ow. Miss Howard's Reports, Miss. 
 
 ow Pr Howard's Practice Reports, N. Y. 
 
 ow. St. Tr Howell's State Trials, Eng. 
 
 ugh. C. C Hughes' Reports, 4th Circuit, U. S. 
 
 ughes Hughes's Reports, Ky. 
 
 umph Humphrey's Reports, Tenn. 
 
 nn Hun's Reports, Supreme Court, N. Y. 
 
I094 APPENDIX. 
 
 Hut Hutton's Reports, C. P. Eng. 
 
 111. App Illinois Appellate Cases. 
 
 Ired Iredell's Keports, N. C. 
 
 Ired. Eq Iredell's Reports, Equity, N. C. 
 
 J. and Sp Jones and Spencer's Reports, Superior Court, N. Y. 
 
 J. J. Marsh J. J. Marshall's Reports, Ky. 
 
 J. and W., or Jac. 
 
 and W Jacob and Walker's Reports, Chancery, Eng. 
 
 Jac. or Jacob Jacob's Reports, Chancery, Eng. 
 
 Jeff. Jefferson's Reports, Va. 
 
 Jenk Jenkin's Reports, Exch. Eng. 
 
 Johns Johnson's Reports, N. Y. (Supreme Ct. and Ct. of Errors). 
 
 Johns. Cas Johnson's Cases, N. Y. (Supreme Ct. and Ct. of Errors). 
 
 Johns. Ch. . . Johnson's Chancery Reports, N. Y. 
 
 Johns. V. C Johnson's Chancery Reports, Eng. (Vice Chancellors). ; 
 
 Johns, and H Johnson and Hemming's Reports, Chancery, Eng. 
 
 Jones L Jones's Law Reports, N. C. 
 
 Jones Eq Jones's Equity Reports, N. C. 
 
 Jones, Pa Jones's Reports (ii and I2 Pa. St.). 
 
 Jones, T Sir T. Jones's Reports, K. B. Eng. 
 
 Jones, W Sir W. Jones's Reports, K. B. Eng. 
 
 Jones and La T. . . .Jones and La Touche's Irish Chancery Reports. 
 
 Jur The Jurist, Eng. 
 
 Jur. sr. S Jurist, New Series, Eng. 
 
 Kay Kay's Reports, Chancery, Eng. 
 
 Kay and J Kay and Johnson's Reports, Chancery, Eng. 
 
 Keb Keble's Reports, K. B. Eng. 
 
 Keen Keen's Reports, Roll's Court, Eng. 
 
 Keilw. or Keil Keilway's Reports, K. B. Eng. 
 
 Kel Sir John Kelyng's Reports, K. B. Eng. 
 
 Kel. W W. Kelynge's Reports, K. B. Eng. 
 
 Kelly Kelly's Reports (1-3 Ga.). 
 
 Ken Kenyon's Reports, K. B. Eng. 
 
 Ken. Ch Kenyon's Chancery Cases, Eng. • ' 
 
 Kern Kernan's Reports (11-14 N. Y.). 
 
 Keyes Keyes's Reports, Ct. of Appeals, N. Y. (Most of these 
 
 cases are better reported in Abbott's Decisions.) 
 
 Kirby Kirby's Reports, Conn. 
 
 Knapp Knapp's Privy Council Cases, Eng. 
 
 L. and C , . Leigh and Cave's Crown Cases, Eng. 
 
 L. R. I, 2, etc., A. 
 
 and E English Law Reports, Admiralty and Ecclesiastical. 
 
 L. R. C.C 
 
 L. R. C. P 
 
 L. R. Ch. App.. 
 
 L. R. Eq 
 
 L. R. Ex 
 
 L. R. H. I 
 
 Crown Cases Reserved. 
 Common Pleas. 
 Chancery Appeals. 
 Equity Cases. 
 Exchequer. 
 House of Lords. 
 
APPENDIX. 1095 
 
 L. R. P. C English Law Reports, Privy Council Cases. 
 
 L. R. P. and D " " " Probate and Divorce. 
 
 L. R. Q. B '• •• " Queen's Bench. 
 
 L. R. So. App " " " Scotch and Divorce Appeals. 
 
 L. J. Rep Law Journal Reports, Eng. 
 
 La Lane's Reports, Exchequer, Eng. 
 
 La. An Louisiana Annual Reports. 
 
 Lab Labatt's Reports, Cal. 
 
 Lalor Lalor's Supplement to Hill and Denio's Reports, N. Y. 
 
 Lans Lansing's Reports, Supreme Court, N. Y. 
 
 Lat Latch's Reports, K. B. Eng. 
 
 Ld. Ken Kenyon's Reports, K. B. Eng. 
 
 Ld. Raym .'.Lord Raymond's Reports, K. B. Eng. 
 
 Lea Lea's Reports, Tenn. 
 
 Leach Leach's Crown Cases, Eng. 
 
 Lee Lee's Consistory Reports, Eng. 
 
 Lee temp. Hard . . . Lee's Reports, K. B. tempore Hardwick, Eng. 
 Leg. Chron. Rep. . .Legal Chronicle Reports, Pa. 
 
 Leg. Gaz. Rep Legal Gazette Reports, Pa. 
 
 Leigh Leigh's Reports, Va. 
 
 Leon Leonard's Reports, K. B. Eng, 
 
 Lev Levinz's Reports, K. B. Eng. 
 
 Lew. C. C Lewin's Crown Cases, Eng. 
 
 Ley Ley's Reports, K. B. Eng. 
 
 Lilly Lilly's Reports, N. P. Eng. 
 
 Lit. C. P Littleton's Reports, C. P. Eng. 
 
 Litt Littell's Reports, Ky. 
 
 Litt. Sel. Cas Littell's Select Cases, Ky. 
 
 LI. and G Lloyd and Gould's Irish Chancery Reports. 
 
 Lofft Lofft's Reports, K. B. Eng. 
 
 Lowell Lowell's Reports, U. S., Dist. of Mass. 
 
 Lush Lushington's Admiralty Reports, Eng. 
 
 Lut , Lutwych's Reports, C. P. Eng. 
 
 M. D. and D Montagu, Deacon and De Gex's Bankruptcy Reports, Eng. 
 
 M. and Ayr Montagu and Ayrton's Bankruptcy Reports, Eng. 
 
 M. and H Murphy and Hurlstone's Reports, Exch. Eng. 
 
 M. and McA Montagu and McArthur's Bankruptcy Reports, Eng. 
 
 M. and S Maule and Selwyn's Reports, K. B. Eng. 
 
 M. and W Meeson and Welsby's Reports, Exchequer, Eng. 
 
 McAU McAllister's Reports, gth Circuit, U. S. 
 
 McCart McCarter's Reports (14 and 15 N. J. Eq.). 
 
 McCle McCleland's Reports, Exchequer, Eng. 
 
 McCle. and Yo McCleland and Younge's Reports, Exch. Eng. 
 
 McGloin McGloin's Reports, La. 
 
 McLean McLean's Reports, 7th Circuit, U. S. 
 
 Mac. and G Macnaghten and Gordon's Reports, Chancery, Eng. 
 
 Mac Ar Mac Arthur's Reports (Supreme Ct. Dist. of Columbia). 
 
 MacL. and R MacLean and Robinson's Scotch Appeals. 
 
1096 APPENDIX. 
 
 Macq. H. L, C Macqueen's Scotch Appeal Cases (House of Lords). 
 
 Madd Haddock's Reports, Chancery, Eng. 
 
 Man. and G Manning and Granger's Reports, C. P. Eng, 
 
 Man, and R Manning and Ryland's Reports, K. B. Eng. 
 
 Mar March's Reports, K. B. Eng. 
 
 Marr Marriott's Admiralty Reports, Eng. 
 
 Marsh Marshall's Reports, C. P. Eng. 
 
 Marsh. A. K A. K. Marshall's Reports, Ky. 
 
 Marsh. J.J J. J. Marshall's Reports, Ky. 
 
 Mart. N. C Martin's Reports, N. C. 
 
 Mart. La Martin's Reports, La. 
 
 Mart. N. S Martin's Reports, La., New Series. 
 
 Mart, and Yerg Martin and Yerger's Reports, Tenn. 
 
 Mas Mason's Reports, ist Circuit, U. S. 
 
 McCord McCord's Reports, S. C. 
 
 McCord Eq McCord's Equity Reports, S. C. 
 
 McCrary McCrary's Reports, 8lh Circuit, U. S. 
 
 Meigs Meigs's Reports, Tenn. 
 
 Mer. or Meriv Merivale's Reports, Chancery, Eng. 
 
 Met. or Mete Metcalfs Reports (42-54 Mass.). 
 
 Met. Ky Metcalfs Reports, Ky. 
 
 Miles Miles's Reports, Pa. 
 
 Mills Mills's Reports, S. C. 
 
 Minor Minor's Reports, Ala. 
 
 Mo. App Reports of St. Louis Ct. of Appeals, Mo. 
 
 M 'Mull M'MulIan's Reports, S. C. 
 
 M'Mull. Eq M'MulIan's Equity Reports, S. C. 
 
 Mod Modern Reports, K. B. Eng. 
 
 Moll MoUoy's Chancery Reports, Ireland. 
 
 Mon. B Ben Monroe's Reports, Ky. 
 
 Mon. T. B T. B. Monroe's Reports, Ky. 
 
 Mont. B. C Montagu's Bankruptcy Cases, Eng. 
 
 Mont, and Ayr Montagu and Ayrton's Bankruptcy Cases, Eng. 
 
 Mont, and B Montagu and Bligh's Reports, Bankruptcy, Eng. 
 
 Mont, and Chit Montagu and Chitty's Reports, Bankruptcy, Eng. 
 
 Mont, and Mac Montagu and Macarthur's Bankruptcy Cases Eng. 
 
 Mont. D. and D Montagu, Deacon, and De Gex's Reports, Bankruptcy, 
 
 Eng. 
 
 Moo. C. C Moody's Crown Cases, Eng. 
 
 Moo. and M., or M. 
 
 and M Moody and Malkin's Reports, N. P. Eng. 
 
 Moo. and R., or M. 
 
 and R Moody and Robinson's Reports, N. P. Eng. 
 
 Moo. C. P Moore's Reports, C. P. Eng. 
 
 Moo. K. B Moore's Reports, K. B. Eng. 
 
 Moo. and P Moore and Payne's Reports, C. P. Eng. 
 
 Moo. and S Moore and Scott's Reports. C. P. Eng. 
 
 Moore Moore's Reports, K. B. Eng. 
 
APPENDIX. 1097 
 
 Moore P. C Moore's Privy Council Cases, Eng. 
 
 Morr. St. Cas Morris's State Cases, Miss. 
 
 Morris Morris's Reports, Iowa. 
 
 Mor. Tran Morrison's Transcript, U. S. Supreme Court Decisions. 
 
 Mos Moseley' s Reports, Chancery, Eng. 
 
 Munf Munford's Reports, Va. 
 
 Murph Murphey's Reports, N. C, 
 
 Myl. and Cr Mylne and Craig's Reports, Chancery, Eng. 
 
 Myl. and K Mylne and Keen's Reports, Chancery, Eng. 
 
 Myr. (Cal.) Myrick's Probate Reports, Cal. 
 
 N. Benl New Benloe, K. B. Reports, Eng. 
 
 N. Chip N. Chipman's Reports, Vt. 
 
 N. C. Con •. North Carolina Conference Reports. 
 
 Nat. Bank. Reg. . . .National Bankruptcy Register, U. S. 
 
 N. J. Eq New Jersey Equity Reports. 
 
 N. J. L New Jersey Law Reports. 
 
 N. R The New Reports. (See B. and P. N. R.) 
 
 Nels Nelson's Reports, Chancery, Eng. 
 
 N. and H Nott and Huntingdon's Reports (U. S. Ct. of Claims). 
 
 N. and Hop Nott and Hopkin's Reports (U. S. Ct. of Claims). 
 
 N. and McC Nott and McCord's Reports, S. C. 
 
 Nev. and M Neville and Manning's Reports, K. B. Eng. 
 
 Nev. and P Neville and Perry's Reports, K. B. Eng. 
 
 Newb Newberry's Admiralty Reports, U. S. 
 
 Norris Norris's Reports (82-g6 Pa. St.). 
 
 North Northington's Reports, by Eden, Chancery, Eng. 
 
 Notes of Cas Notes of Cases (Adm. and Eccl.), Eng. 
 
 Noy Noy's Reports, K. B. Eng. 
 
 N. Y. Civ. Pr. Rep.N. Y. Civil Procedure Reports. 
 
 O. Benl Old Benloe, C. P. Eng. 
 
 OhioN. S., orOhioSt.Ohio Reports, New Series (Ohio State Reports). 
 
 Olcott Olcott's Admiralty Reports, U. S. Dist. Ct., N. Y. 
 
 Orl. Bridg^man Orlando Bridgman's Reports, C. P. Eng. 
 
 Otto Otto's Reports, Supreme Court, U. S. (91-106 U. S.). 
 
 Outerbridge Outerbridge's Reports (97-99 &c. Pa. St.). 
 
 Overt Overton's Reports, Tenn. 
 
 Ow Owen's Reports, K. B. Eng. 
 
 P. C Pleas of the Crown. 
 
 P. D Probate Division, English Law Reports. 
 
 P. F. Smith P. F. Smith's Reports (51-81^ Pa. St.). 
 
 P. and D., or Per. and 
 
 Dav Perry and Davison's Reports, K. B. Eng. 
 
 P. and W Penrose and Watts' Reports, Pa. 
 
 P. Wms Peere Williams's Reports, Chancery, Eng 
 
 Pa. L. J. Rep Pennsylvania Law Journal Reporter. 
 
 Pa. St Pennsylvania State Reports. 
 
 Paige Paige's Report.s, Chancery, N. Y. 
 
 Paine Paine's Reports, 2d Circuit, U. S. 
 
lOgS APPENDIX. 
 
 Pal. or Palm Palmer's Reports, K. B. Eng. 
 
 Par. or Park Parker's Reports, Exchequer, Eng. 
 
 Park. Cr Parker's Criminal Reports, N. Y. 
 
 Pars. Eq. Cas Parsons' Equity Cases, Pa. 
 
 Pat. and H Patton and Heath's Reports, Va. 
 
 Pea. N. P Peake's Nisi Prius Cases, Eng. 
 
 Pearson Pearson's Reports, Pa. 
 
 Peck Peck's Reports (11-30 111.)- 
 
 Peck Peck's Reports, Tenn. 
 
 Pen. or Penn Pennington's Reports (2 and 3 N. J. Law). 
 
 Penny Pennsylvania Supreme Court Reports (by Pennypacker). 
 
 Pet Peters's Reports, Supreme Ct. U. S. 
 
 Pet. Adm Peters's Admiralty Reports, U. S. (Dist. of Pa.). 
 
 Pet. C. C Peters's Reports, 3d Circuit, U. S. 
 
 Phil Phillips's Reports, Chancery, Eng. 
 
 Phil Phillips's Law Reports, N. C. 
 
 Phil. Eq Phillips's Equity Reports, N. C. 
 
 Phila. Rep Philadelphia Reports, Pa. 
 
 Phillim. or Phill. Ec.Phillimore's Reports, Ecclesiastical, Eng. 
 
 Pick Pickering's Reports (18-41 Mass.). 
 
 Pike Pike's Reports (1-5 Ark.). 
 
 Pinn Pinney's Reports, Wis. 
 
 Pitts. Rep Pittsburgh Reports, Pa. 
 
 Plowd Plowden's Reports, K. B. Eng. 
 
 Pol Pollexfen's Reports, K. B. Eng. 
 
 Poph Popham's Reports, K. B. Eng. 
 
 Port. Ala. or Port. . . Porter's Reports, Ala. 
 
 Port. Ind Porter's Reports (3-7 Ind.). 
 
 Port. Mo Porter's Reports (42-59 Mo.). 
 
 Pr. Ch Precedents in Chancery (Finch), Eng. 
 
 Prac. Reg Practical Register, C. P. Eng. 
 
 Price or Pr Price's Reports, Exchequer, Eng. 
 
 Q. B Adolphus and Ellis's Reports, New Series, Q. B. Eng. 
 
 Q. B. D English Law Reports, Queen's Bench Division. 
 
 Q. B. Upp. C Queen's Bench Reports, Upper Canada. 
 
 Quincy Quincy's Reports, Mass. 
 
 R. M. Charlt R. M. Charlton's Reports, Ga. 
 
 Rand Randolph's Reports, Va. 
 
 Rawle Rawle's Reports, Pa. 
 
 Raym. T Sir Thomas Raymond's Reports, K. B. Eng. 
 
 Redf Redfield's Surrogate Reports, N. Y. 
 
 Rep Coke's Reports, K. B. Eng. 
 
 Rep. Con. Ct Reports of Constitutional Court, S. C. 
 
 Rep. temp. Finch .... Finch's Reports, Chancery, Eng. 
 
 Reynolds Reynolds's Reports (40-42 Miss.). 
 
 Rice Rice's Reports, S. C. 
 
 Rice Eq Rice's Equity Reports, S. C. 
 
 Rich Richardson's Reports, S. C. 
 
APPENDIX. 
 
 1099 
 
 Rich. Eq Richardson's Equity Reports, S. C. 
 
 Ridg. t. Hard Ridgway's Reports temp. Hardwicke , Ch. and K. B. Eng. 
 
 Riley Riley's Reports, S. C. 
 
 Riley Eq Riley's Equity Reports, S. C. 
 
 Rob. or Robt Robertson's Reports, Superior Court, N. Y. 
 
 Rob. Adm Robinson's Reports, Admiralty, Eng. (See "C. Rob. 
 
 Adm." and "W. Rob. Adra.") 
 
 Rob. Ap Robertson's Reports of Appeals (Scotch). 
 
 Rob. Ecc Robertson's Ecclesiastical Reports, Eng. 
 
 Rob. La Robinson's Reports, La. 
 
 Rob. Va Robinson's Reports, Va. 
 
 Robb Pat. Cas Robb's Patent Cases, U. S. 
 
 Roll Rolle's Reports, K. B. Eng. 
 
 Roll. Abr Rolle's Abridgment. 
 
 Rom. Cases Romilly's Notes of Cases, Chancery, Eng. 
 
 Root Root's Reports, Conn. 
 
 Rose Rose's Reports, Bankruptcy, Eng. 
 
 Russ Russell's Reports, Chancery, Eng. 
 
 Russ. and M Russell and Mylne's Reports, Chancery, Eng. 
 
 Russ. and R., or R. 
 
 and R. C. C Russell and Ryan's Crown Cases, Eng. 
 
 Ry. and M., or R. and 
 
 Moo Ryan and Moody's Reports, N. P. , Eng. 
 
 S. C Same Case. 
 
 S. C. C Select Chancery Cases, Eng. 
 
 S. P Same Point or Principle. 
 
 S. and M., or Smedes 
 
 and M Smedes and Marshall's Reports, Miss. 
 
 S. and M. Ch Smedes and Marshall's Reports, Chancery, Miss. 
 
 S. and R., or Serg. 
 
 and R Sergeant and Rawle's Reports, Pa. 
 
 S. and S., or Sim. and 
 
 St Simons and Stuart's Reports, Chancery, Eng. 
 
 S. and Sm Searle and Smith's Reports, Probate and Divorce, Eng. 
 
 Salk Salkeld's Reports, K. B. Eng. 
 
 Sandf Sandford's Superior Court Reports, N. Y. 
 
 Sandf. Ch Sandford's. Chancery Reports, N. Y. 
 
 Saund Saunders's Reports, K. B. Eng. 
 
 Sav Savile's Reports. C. P. Eng. 
 
 Saw Sawyer's Reports, gth Circuit, U. S. 
 
 Say .Sayer's Reports, K. B. Eng. 
 
 Sax Saxton's Reports (i N. J. Eq.). 
 
 Scam Scammon's Reports (2-5 111.). 
 
 Sch. and Lef Schoales and Lefro/s Reports, Chanceiy, Ireland. 
 
 Scott Scott's Reports, C. P. Eng. 
 
 Scott N. R Scott's New Reports, C. P. Eng. 
 
 Searle and Sm Searle and Smith's Probate and Divorce Reports, Eng. 
 
 Seld .Selden's Reports (5-10 N. Y. Ct. of Appeals). 
 
1 1 00 APPENDIX. 
 
 Seld. Notes iSelden's Notes of Cases, N. Y. 
 
 Selw. N. P .Selwyn's Nisi Prius, Eng. 
 
 Sel. Ca Select Cases, Chancery, Eng. 
 
 Sess. Cas. Sc Scotch Sessions Cases. 
 
 Sh. and McL Shaw and McLean's Reports, House of Lords (Scotch): 
 
 Shaw .'Shaw's Reports, House of Lords (Scotch). 
 
 Shaw Vt Shaw's Reports, Vt. 
 
 Sheld Sheldon's Reports (Superior Ct. of Buffalo, N. Y.). 
 
 Shep Shepley's Reports (13-18 and 21-30 Me.). 
 
 Show Shower's Reports, K. B. Eng. 
 
 Show. P. C Shower's Parliamentary Cases, Eng. 
 
 Sickels Sickels's Reports (46-91 &c. N. Y.). 
 
 Sid Siderfin's Reports, K. B. Eng. 
 
 Sim Simon's Reports, Chancery, Eng. 
 
 Sim. N. S Simon's Chancery Reports, New Series, Eng. 
 
 Sim. and St Simons and Stuart's Reports, Chancery, Eng. 
 
 Skin Skinner's Reports, K. B. Eng. 
 
 Sm. and G Smale and Giffard's Reports, Chancery, Eng. 
 
 Smith Smith's Reports, K. B. Eng. 
 
 Smith, E. D E. D. Smith's Reports, Common Pleas, N. Y. 
 
 Smith, E. P E. P. Smith's Reports (15-27 N. Y.). 
 
 Smith (N. H.) Smith's Reports, N. H. 
 
 Smith, J. P J. P. Smith's Reports, K. B. Eng. 
 
 Smith, P. F P. F. Smith's Reports (5i-8ii Pa. St.). 
 
 Sneed Sneed's Reports, Tenn. 
 
 South Southard's Reports (4 and 5 N. J. Law). 
 
 Speers. Speers's Reports, S. C. 
 
 Speers Eq Speers's Equity Reports, S. C. 
 
 Spencer Spencer's Reports (20 N. J. Law). 
 
 Spinks Spinks's Ecclesiastical and Admiralty Reports, Eng. 
 
 Spinks Pr. Cas Spinks's Prize Cases (Adm. Eng.). 
 
 Sprague Sprague's U. S. Reports (Dist. of Mass.). 
 
 Stant Stanton's Reports (11-13 Ohio). 
 
 St. Tr State Trials, Eng. 
 
 Stark. N. P Starkie's Nisi Prius Reports, Eng. 
 
 Stat, at Large United States Statutes at Large. 
 
 Stew Stewart's Reports, Ala, 
 
 Stew. Adm. L. C . . . Stewart's Admiralty Reports, Lower Canada. 
 
 Stew, and P Stewart and Porter's Reports, Ala. 
 
 Stew. N. J Stewart's Reports (28-35 N. J. Eq.). 
 
 Stock Stockton's Reports (g-i i N. J. Eq.). 
 
 Stockett Stockett's Reports (27-57 Md.). 
 
 Story Story's Report.s, 1st Circuit, U. S. 
 
 Str. or Stra Strange's Reports, K. B. Eng. 
 
 Strob Strobhart's Reports, S. C. 
 
 Strob. Eq Strobhart's Equity Reports, S. C. 
 
 Sty Style's Reports, K. B. Eng. 
 
 Sugd. Dec Sugden's Decisions, Chancery, Ireland. 
 
APPENDIX. iioi 
 
 Sumn Sumner's Reports, ist Circuit, U, S. 
 
 Swa. Ad Swabey's Admiralty Reports, Eng. 
 
 Swa. and Tr Swabey and Tristram's Reports, Probate and Divorce, 
 
 Eng. 
 
 Swan. .4 Swan's Reports, Tenn. 
 
 Swans Swanston's Reports, Cliancery, Eng. 
 
 Sweeney Sweeney's Reports, Superior Court, N. Y. 
 
 T. B. Monr. T. B. Monroe's Reports, Ky. 
 
 T, and C Thompson and Cook's Reports, Supreme Court, N. Y. 
 
 T. and M Temple and Mew's Crown Cases, Eng. 
 
 T. R Term Reports (Durnford and East), K. B. Eng. 
 
 T. Raym Sir T. Raymond's Reports, K. B. Eng. 
 
 T. U. P. Charlt T. U. P. Charlton's Reports, Ga. 
 
 Talb Talbot's Reports, Chancery, Eng. 
 
 Taml Tamlyn's Reports, Rolls Court, Eng. 
 
 Taney Taney's Decisions, 4th Circuit, U. S. 
 
 Tann Tanner's Reports (8-14 Ind.). 
 
 Tap .Tappan's Reports, Ohio. 
 
 Taun Taunton's Reports, C. P. Eng. 
 
 Tayl. N. C Taylor's Reports, N. C. 
 
 Thach. C. C Thacher's Criminal Cases, Mass. 
 
 Thorn. N. S Thompson's Reports, Nova Scotia. 
 
 Tiffany Tiffany's Reports (28-39 N. Y.). 
 
 Tot Tothill's Reports, Chancery, Eng. 
 
 Trans. App Transcript Appeals, N. Y. Ct. of Appeals. 
 
 Tread Tread way's Reports, S. C. 
 
 Tuck Tucker's Surrogate Reports, N. Y. 
 
 Turn, and R Turner and Russell's Reports, Chancery, Eng. 
 
 Tyler Tyler's Reports, Vt. 
 
 Tyrw Tyrwhitt's Reports, Exchequer, Eng. 
 
 Tyrw. and G Tyrwhttt and Granger's Reports, Exchequer, Eng. 
 
 Va. Cas Virginia Cases. 
 
 Van Ness Van Ness's Reports, U. S. (Dist. of N. Y.). 
 
 Vangh Vaughan's Reports, C. P. Eng. 
 
 Vaux Vaux's Recorders' Decisions, Pa. 
 
 Vent Ventris's Reports, K. B. and C. P. Eng. 
 
 Veazey Veazey's Reports (36-44 Vt.). 
 
 Vern Vernon's Reports, Chancery, Eng. 
 
 Vern. and S Vernon and Scriven's Reports, K. B. Ireland. 
 
 Ves. Sen Vesey Senior's Reports, Chancery, Eng. 
 
 Ves. Jun., or Ves. . . .Vesey Junior's Reports, Chancery, Eng. 
 V. and B., or Ves. 
 
 and Bea Vesey and Beames's Reports, Chancery, Eng. 
 
 Vin. Abr Viner's Abridgment. 
 
 Vin. Sup Viner's Supplement. 
 
 Vr Vroom's Reports (30-45 &c. N. J. Law). 
 
 W. 81 Wm. Blackstone's Reports, K. B. Eng. 
 
 W. H. and G Welsby, Hurlstone and Gordon's Reports, Exch. Eng. 
 
1 102 APPENDIX. 
 
 W. Jones W. Jones's Reports, K. B. Eng. 
 
 W. N Weekly Notes, Eng. 
 
 W. N. C. Pa Weekly Notes of Cases, Pa. 
 
 W. R Weekly Reporter (all the courts), Eng. 
 
 W. Rob. Adm Wm. Robinson's Admiralty Reports, Eng. '. 
 
 W. W. and D W^illmore, Wollaston and Davison's Reports, K. B. Eng. 
 
 W. W. and H Willmore, Wollaston and Hodge's Reports, K. B. Eng. 
 
 W. and S Watts and Sergeant's Reports, Pa. 
 
 W. and S. App Wilson and Shaw's Reports, House of Lords (Scotch). 
 
 Walk. Ch Walker's Chancery Reports, Mich. 
 
 Walk. Miss Walker's Reports, Miss. 
 
 Wall Wallace's Reports, Supreme Court, U. S. 
 
 Wall. C. C Wallace's Reports, 3d Circuit, U. S. 
 
 Wall. Jr Wallace Jr.'s Reports, 3d Circuit, U. S. 
 
 Wallis Wallis's Reports, Chancery, Ireland. 
 
 Warden Warden's Reports (2-4 O. St.). 
 
 Ware Ware's Reports, U. S. (Dist. of Me.). 
 
 Wash. C. C, or 
 
 Wash Washington's Reports, 3d Circuit, U. S. 
 
 Wash. Va Washington's Reports, Va. 
 
 Washb Washburn's Reports (16-23 Vt.). 
 
 Watts Watts's Reports, Pa. 
 
 Wend Wendell's Reports, N. Y. (Supreme Ct. and Ct. of Errors) 
 
 West H. L West's Reports, House of Lords, Eng. 
 
 West temp. H West's Reports, temp. Hardwicke, Chancery, Eng 
 
 Whart Wharton's Reports, Pa. 
 
 Wheat Wheaton's Reports, Supreme Court, U. S. 
 
 Wheeler Cr. Cas. . . .Wheeler's Criminal Cases, N. Y. 
 
 Whit. Pat. Cas Whitman's Patent Cases, U. S. 
 
 Wight Wightwick's Reports, Exchequer, Eng. 
 
 Wilcox Wilcox's Reports (loth Ohio). 
 
 Wilm Wilmot's Notes and Opinions, K. B. Eng. 
 
 Wils Wilson's Reports, C. P. Eng. 
 
 Wils. Ch Wilson's Chanceiy Reports, Eng. 
 
 Wils. Ex Wilson's Exchequer Reports, Eng. 
 
 Wils. (Ind.) Wilson's Superior Court Reports, Ind, 
 
 Willes Willes's Reports, C. P. Eng. 
 
 Win Winch's Reports, C. P. Eng. 
 
 Winst Winston's Law Reports, N. C. 
 
 Winst. Eq Winston's Equity Reports, N. C. 
 
 Withr Withrow's Reports (9-21 la.). 
 
 Wms Williams's Reports, or Peere Williams, Chancery, Eng, 
 
 Wood, and M Woodbury and Minot's Reports, 1st Circuit, U. S. 
 
 Woods Woods's Reports, 5th Circuit, U. S. 
 
 Woolw Woolworth's Reports, 8th Circuit, U. S. 
 
 Wright Wright's Reports, Ohio. 
 
 Wright, Pa Wright's Reports (37-50 Pa. St.). 
 
 Wythe Wythe's Reports, Chancery, Va. 
 
APPENDIX. 1,03 
 
 Y. B Year Book. 
 
 Y. and C. Ch Younge and Collyer's Chancery Cases, Eng. 
 
 Y. and C. Ex., or 
 
 You. and Coll Younge and Collyer's Exchequer Reports, Eng. 
 
 Y. and J., or You. 
 
 anii Jer Younge and Jervis's Reports, Exchequer, Eng. 
 
 Yates Sel. Cas Yates's Select Cases, N. Y. 
 
 Yeates Yeates's Reports, Pa. 
 
 Yelv Yelverton's Reports, K. B. Eng. 
 
 Yerg Yerger's Reports, Tenn. 
 
 You Younge's Reports, Exchequer, Eng. 
 
 2ab Zabriskie's Reports (21-24 N. J. Law). 
 
 Supplementary List. 
 
 Abb. N. C Abbott's New Cases, N. Y. 
 
 Asp. M. C Aspinall's Maritime Cases, Eng. 
 
 Atl. Rep Atlantic Reporter, (cases in the courts of Me., N. H., Vt,, 
 
 R. I., Conn., N. J., Pa., Del., and Md.). 
 
 Bl. D. and O Blackham, pundas, and Osborne's Reports, N. P. Ireland. 
 
 C. and E Cabab^ and Ellis's Reports, N. P. Eng. 
 
 Ch. Cas. Ch Choice Cases in Chancery, Eng. 
 
 Connol Connoly's Surrogate Reports, N. Y. 
 
 Craw, and D Crawford and Dix's Cases, Ireland. 
 
 Crockf Crockford's Maritime Cases, Eng. 
 
 Dem Demarest's Surrogate Reports, N. Y. 
 
 Dow. and L Dowling and Lowndes's Reports, Bail Court, Eng. 
 
 Eng. Adm English Admiralty Reports. 
 
 Eng. Ecc English Ecclesiastical Reports. 
 
 Fox and Sm Fox and Smith's Reports, K. B. Ireland. 
 
 Hayes Hayes's Reports, Exchequer, Ireland. 
 
 Hayes and J Hayes and Jones's Reports, Exchequer, Ireland. 
 
 Hopk. Adm Hopkinson's Admiralty Judgments, Pa. 
 
 Hud. and Br Hudson and Brooke's Reports, K. B. Ireland. 
 
 Jebb, C. C Jebb's Crown Cases, Ireland. 
 
 Jebb and B Jebb and Bourke's Reports, Q. B. Ireland. 
 
 Jebb and S Jebb and Symes's Reports, Q. B. Ireland. 
 
 Jones Jones's Reports, Exchequer, Ireland. 
 
 Jones and C Jones and Cary's Reports, Exchequer, Ireland. 
 
 L. R,, E. and I. App. .Law Reports, English and Irish Appeals, Eng. 
 
 L. R., Ir Law Reports, Ireland. 
 
 L. J. N. S Law Journal (New Series) Reports, Eng. 
 
 L. T Law Times Reports, Eng. 
 
 L. T. N. S Law Times (New Series) Reports, Eng. 
 
 Lownd. M. and P Lowndes, Maxwell, and Pollock's Reports, Bail Court, Eng. 
 
II04 APPENDIX. 
 
 Lownd. and M Lowndes and Maxwell's Reports, Bail Court, Lnj,, 
 
 M. G. and S Manning, Granger, and Scott's Reports, C. P. Eng. 
 
 Morr. B. C Morrell's Bankruptcy Cases, Eng. 
 
 N. E. Rep North Eastern Reporter, (cases in the courts of Mass., N. Y, 
 
 Ohio, Ind., and 111.). 
 N. W. Rep Northwestern Reporter, (cases in the courts of Mich., 
 
 Wis., Minn., Iowa, Neb., and Dakota). 
 
 N. Y. St. Rep New York State Reporter, (all the N. Y. courts). 
 
 N. Y. Sup'm New York Supreme Court Reports. 
 
 N. Y. Supp New York Supplement, (courts of New York below the 
 
 Court of Appeals). 
 Pac. Rep Pacific Reporter, (cases in the courts of Cal., Or., Kan., 
 
 Col., Nev., Mont., Wyo., Ariz., Wash., Utah, N. Mex., 
 
 and Idaho). 
 
 Pater Paterson's Reports, House of Lords (Scotch). 
 
 Paton Paton's Reports, House of Lords (Scotch). 
 
 Rep. Ch Reports in Chancery, Eng. 
 
 Ridg. L. and S Ridgeway, Lapp, and Schoales's Reports, K. B. Ireland. 
 
 S. E. Rep South Eastern Reporter, (cases in the courts of Va., W. Va., 
 
 N. Car., S. Car., and Ga.). 
 S. W. Rep South Western Reporter, (cases in the courts of Ky., Tenn., 
 
 Ark., Mo., and Tex.). 
 
 Saund. and C Saunders and -Cole's Reports, Bail Court, Eng. 
 
 Sm. and Bat Smith and Batty's Reports, K. B. Ireland. 
 
 Smy Smythe's Reports, C. P. Ireland. 
 
 So. Rep Southern Reporter, (cases in the courts of Fla., Ala., Miis.. 
 
 and La.). 
 
 Sup. Ct. Rep Supreme Court Reporter, (U. S. Supreme Court). 
 
 Wol WoUaston's Reports, Bail Court, Eng. 
 
.' -'' 
 
 INDEX. 
 
 [T/ir numbers refer to, the top paging^ 
 
 Ah initio, trespass, 737. 
 Abandonment of property, 213, 524. 
 
 of easements, 234, n. 
 Abatement of freehold, 718. 
 remedies for, 723, 724. 
 
 of indictment, 1018. 
 
 of nuisance, 620, 718, 741, 926, n. 
 
 of writ, count, or suit, 718, 773, 774. 
 
 of legacies, 609, 610, n. 
 
 plea in, 773, 774. 1018. 
 Abdication, 887. 
 Abduction of child, 696, 951, 956, n. 
 
 of heiress, 951. 
 
 of ward, 697. 
 
 of wife, 157, 695, 951. 
 
 or kidnapping, 955. 
 Abeyance of freehold, 291, 464. 
 Abjuration, oath of, 115, 125. 
 
 of realm by husband, eiiect of, 156. 
 
 of realm, causing civil death, 71, 72. 
 Abortion, 69, 944, n. 
 Absolute property, 511. 
 
 rights and duties, 61-85, 674. 
 Acceptance of bills, 576. 
 Access, of husband to wife, 172. 
 Accession, title by, 526. 
 Accessories to crime, 874. 
 
 before the fact, 875, 939. 
 
 after the fact, 876. 
 
 when to be tried, 877. 
 Accident, equitable jurisdiction over, 
 
 824. 
 Accidental fires, 140. 
 Accord and satisfaction, 621. 
 Account books, when evidence, 797. 
 Accounts, jurisdiction of equity over, 
 
 180, 828. 
 Account, action of, 714. 
 
 arrest in, 760. 
 Account stated, 713, 714. 
 Accounting of guardian, 1 79. 
 Accroaching royal power, 885. 
 
 71 
 
 Acknowledgment of deeds, 103, 11., 
 455, n. 
 of a fine, 490. 
 
 by married women, 158, n., 490, 492. 
 Act of God, 305, 308, 430, 481, 
 
 of law, 305, 481. 
 Act of Settlement, 25, 68, 116, 1043. 
 Acts of bankruptcy, 583, n., 585, 586. 
 Acts of Parliament, 50-58. 
 public, 51. 
 private, 51. 
 right of printing, 532. 
 (See Statutes.) 
 Action at law, 671. 
 civil, 637, 717, n. 
 mixed, 673, 728, 729, 746. 
 
 of ejectment, 727, n , 729-733. 
 of waste, 305, n.. 673, 745. 
 real, 635, 673, 711, 722-727. 
 personal, 673, 716, n. 
 
 jurisdiction over, 635, 637, 639. 
 choice of, 756. 
 ex contractu, 673. 
 of detinue, 637, 704. 
 of account, 714. 
 of assumpsit, 707, 709, 710-717, 
 
 770. 
 of debt, 637, 707. 
 of covenant, 708. 
 ex delicto, 673. 
 
 on the case, 637, 643, 644, 678, 
 
 714, 735, 742, 790- 
 of trespass, 637, 675, 677, 678, 
 694, 695, 696, 697, 703, 734. 
 735, 736, 746, 762. 
 of trover, 703, 705. 
 of replevin, 700-704. 
 popular, 544, 712. 
 qui tarn, 712, 751, 1009. 
 local and transitory, 769. 
 abatement of, 718, 773, 774. 
 survival of cause of action, 773. 
 
 H05 
 
iio6 
 
 INDEX. 
 
 [The numbers refer it *he tap paging^ 
 
 Action at law, upon judgment, 710. 
 
 Action, chose in, 1 54, n., 5 1 8, 5 1 9,549,969. 
 
 Actor, 627. 
 
 Actual seizin, 383, 384, 459. 
 
 /Id coiligeniJmn, letters, 604. 
 
 Ademption of legacies, 610, n. 
 
 Additions in pleading, 773, 1018, 
 
 1040. 
 Adherence to king's enemies, 891, 
 Adjudication of bankruptcy, 586. 
 Ad litem, guardian, 177, n., 820. 
 Admeasurement of dower, 317, 318. 
 Administration, 589-595, 664. 
 
 cum lestamento annexe, 603, 604, n., 
 606. 
 
 de bonis non, 605. 
 
 durante absentia, 602, 606. 
 
 durante vtinore (Etate, 602, 606. 
 
 to whom granted, 595, 603, 
 
 letters of, 603, 605, 606. 
 
 equitable jurisdiction over, 828. 
 Administrators (see Executors), 603. 
 
 who may be, 595, 603. 
 
 duties or, 605-611. 
 
 of persons civilly dead, 71, 72, u. 
 Admiralty causes, 667. 
 
 court of, 49, 142, n., 659, 987. 
 
 jurisdiction of, 660, n., 667, 987. 
 Admissions in evidence, 1029, n. 
 Ad quod damnum, writ of, 425, 
 Adultery, action for, 695. 
 
 evidence in actions for, 157, n. 
 
 children of, illegitimate, 172. 
 
 homicide to prevent, 931, 939. 
 
 divorce for, 151, 152, 663. 
 
 how it affects dower, 312, n. 
 
 destroys right to alimony, 153. 
 Advancements, 614. 
 Adverse possession, 374, n., 421, n. , 
 
 719. 
 Advocate, 629. 
 
 liability of for negligence, 631, n,, 
 
 715- 
 Advowson, 228 and note, 428. 
 
 no rent in, 239. 
 
 curtesy in, 310. 
 Affidavit, 775, 883. 
 
 justices may take, 103, n. 
 Affinity, annuls marriage, 143, 
 Affirmative of issue, 795- 
 Affray, 913. 
 
 homicide in, 933. 
 Africans. (See Colored Persons.) 
 Age of consent to marriage, 146, 180. 
 
 of persons, how reckoned, 180. 
 
 of discretion, 180. 
 
 of majority, 180. 
 
 as affecting power to be executor or 
 administrator, 180, 602. 
 
 Age, as affecting capacity to make a 
 will, 180, 499, 596. 
 
 as affecting criminal liability, 862. 
 Agents, 137 and note. 
 
 general and special, 137, n. 
 
 power to contract for principal, 136, 
 
 137- 
 
 of corporations, 195, n. 
 
 husband and wife may be agents for 
 each other, 155. 
 Aggregate corporation, 187, 195, 196, 
 197. 538. 
 
 conveyance to, 293. 
 
 taking property by succession, 538. 
 Agistment, 561. 
 Agnati, 397. 
 
 Agreement. (See Contract.) 
 Agriculture, 212. 
 Aid-prayer, 772. 
 Aider by verdict, 806. 
 Aids, feudal, 257, 268, 269, 276. 
 Aids or taxes, how imposed, 80. 
 Air, right to, 218, 232, n., 516, 524, 
 
 739- 
 Alfred, his dome-book, 31. 
 
 system of courts, 632. 
 Alias writ, 691, 763, 1012. 
 Alienage, declaration of, 121, n. 
 Alienation, in general, 434-507. 
 
 who may aliene, 436. 
 
 modes of alienation, 440, 441. 
 
 by deed, 442-483. 
 
 by matter of record, 483-496. 
 
 by devise, 497-507. 
 
 forfeiture by, 423, 428. 
 
 restrictions upon, 293, n. 
 
 right of, in feudal times, 434, 435. 
 
 effect of the statute Quia Emptorei 
 upon (see Quia Emptores'). 
 Aliens, 114-125. 
 
 who are, 114, 120. 
 
 rights, &c., of, in general, 119, 120. 
 
 naturalization and denization of, 
 122, 406. 
 
 duty of allegiance, 117, 119, n., 428. 
 
 rights as to descent, 119, n., 405-408. 
 
 alienation by, 119. 
 
 conveyance to, 440. 
 
 purchase by, 119, 428, 440. 
 
 right to dower, 313. 
 
 alien friends and enemies, 120, 124, 
 note. 
 
 capture of alien enemy's property, 
 523. 
 Alimony, 153, 664. 
 
 permanent, 153, n. 
 
 pendente lite, 153, n. 
 Allegation in pleading, 666. 
 
 defensive, 666. 
 
INDEX. 
 
 \Tke numbers refer to the tof paging.'] 
 
 1107 
 
 Allegiance, 114-118, 287, n., 884. 
 
 local, 117, 884. 
 
 natural, 117, 884. 
 
 oath of, 115, 116, 118, 124, 125. 
 
 how affected by naturalization, 126, 
 note. 
 
 involves duty of protection, 62. 
 Allodial property, 243, n., 244, 247, 
 
 255, 286, n., 289. 
 Allodium, 255, 289, 290. 
 Allotments to vassals, 242. 
 Alluvion, 416, 417. 
 Alteration of deeds, 456. 
 
 of wills, 500. 
 Ambassadors, inviolability of, 881, 882. 
 
 must consent to appointment, 78. 
 
 privilege from arrest, 766, 
 
 violation of privileges, 881. 
 
 their children are citizens, 121. 
 Amendments, at law, 812. 
 
 in equity, 838. 
 
 statutes of, 812, 
 Amercement, 711, 771, 801, 810. 
 Amotion, in corporations, 194, n. 
 Ancestor, 376, 383, 384. 
 Ancient deeds and wills, 796. 
 Ancient demesne, 284. 
 Ancient lights, 232, n., 516, 524, 739. 
 Animals, property in, 210, 512-515, 
 
 525. 
 domiia naiura, 512. 
 ferce natures, 218, 237, 513-516, 524, 
 
 533- 
 
 mischief by tame, 706. 
 
 trespasses by cattle, 736. 
 
 distraining damage feasant, 621, 736. 
 
 larceny of, 512, 515. 525. 97°- 
 Animus furandi, 966, 968. 
 Animus revertendi, 514, 960. 
 Annuities, 227, 238, 570. 
 
 distinguished from rent charge, 238. 
 Answer in chancery, 836. 
 
 in ecclesiastical courts, 666, 
 
 in code pleading, 782, n. 
 Apparent easement, 232, n. 
 
 heir, 176, n., 383. 
 Appeal of rape, 282. 
 Appeal, court of, 651, n. 
 Appeals from common law courts, 635, 
 640, 647, 648, 811. 
 
 from equity courts, 647, 842. 
 
 from ecclesiastical courts, 50. (>(>(>• 
 
 from criminal courts, 1039. 
 Appearance to actions, 761, 763, 765, 
 
 767- 
 
 in chancery, 832, 834. 
 
 in criminal cases, looi. 
 Appearance days, 758, 
 Appendant, common, 228. 
 
 Apportionment of rent, 307, 330. 
 Apprentices, law respecting, 130-132, 
 183. 
 settlement of, 112. 
 barristers once so called, 629. 
 Apprenticing of ward, 178, n. 
 Approving, in respect to commons, 229, 
 Appurtenances, 222, n- 
 Appurtenant, common, 229, 421. 
 Arbitration, 622. 
 Archdeacon's court, 657. 
 Arches, court of, 657. 
 Aristocracy, 16. 
 Arms, right of having, 83, 84. 
 
 assize of, 259. 
 Arraignment, 1014. 
 Array, challenge to, 792, 1024. 
 Arrest of judgment, 804, 806, 1035. 
 Arrest, 761. 
 of persons in civil cases, 760, 761, 
 766. 
 how made, 766, 
 persons privileged from, 766 and 
 
 n., 768, 815. 
 remedy for malicious, 685. 
 upon final process, 814, 815. 
 of persons in criminal cases, 90, 996. 
 by warrant, 996, 997. 
 by officers without warrant, 99S. 
 by private persons without war- 
 rant, 999. 
 by sheriff, 90. 
 by hue and cry, 1000. 
 persons privileged from, 766, u. 
 in cases of affray, 913. 
 Arson, 956. 
 
 what a house to constitute, 957. 
 what a burning, 957. 
 malice, 958. 
 punishment, 958. 
 Articuli super cartas, 636, 639, 750- 
 Artificial person, 62, 185. 
 Asportation in larceny, 967. 
 
 in robbery, 974, n. 
 Assault and battery, 73, 675, 676, 850, 
 
 954- 
 upon servant, action for, 135. 
 by husband upon wife, 157, n., 159. 
 by third persons on wife, 695. 
 by parent to protect child, 165. 
 when justifiable, 135. 618, 619, 676. 
 a criminal offence, 850, 954. 
 with intent to kill, 942. 
 with intent to commit rape, 955. 
 Assembly, riotous or unlawful, 912, 
 
 913. 
 Assets, 402, 607. 
 
 Assignees of bankrupt, 184, n., 587. 
 Assignment, of bankrupt's effects, 587. 
 
iro8 
 
 INDEX. 
 
 \The numbers refer to the top paging^ 
 
 Assignment, of dower, 317. 
 
 of estate, 469. 
 
 distinguished from a lease, 469. 
 
 of reversions, 709. 
 
 of choses in action, 519, 549. 
 
 of lease, 328, n., 469. 
 
 for the benefit of creditors, 590, n. 
 Assise defined, 650, 723. 
 
 different meanings of this word, 723, 
 724. 
 
 commission of, 650, 723, 988. 
 
 court of, 649, 723, 790, 989. 
 
 justices of, 650, 788, 790, 988. 
 
 and nisi prius, 649, 790. 
 
 writ of, 723. 
 
 superseded by ejectment, 733. 
 
 rents of, 240. 
 
 of arms, 259. 
 
 of novel disseizin, 719, 724, 728. 
 
 of mort d' ancestor, Tl\. 
 
 of nuisance, 742. 
 
 of bread, breaking of, 923. 
 Association, writ of, 651. 
 Assumpsit, express, 707, 709. 
 
 implied, 710-717, 735, 770. 
 
 indebitatus, 707, 
 Assurances, common, 441. 
 
 of record, 483. 
 
 covenant for farther, 451, n. 
 Attachment against witnesses, 798. 
 
 for contempt, 833, 992, 995. 
 
 in chancery, 833, 834. 
 
 of defendant's property, 759, 762, n. 
 Attainder, 408, 1020, 1036. 
 
 escheat for, 408. 
 
 duty of sheriff in case of, 91. 
 
 forfeiture resulting from, 1037, 1038. 
 
 effect upon dower, 313. 
 
 causes corruption of blood, 408, 1020, 
 1038. 
 
 as causing civil death, 72, n. 
 
 reversal of, 1040. 
 Attempts to commit crime, 857. 
 Attestation of deeds, 454. 
 
 of wills, 500, 601. 
 
 by legatee or creditors, 502. 
 Attorney at law, 627-630. 
 
 action against, 631, 766. 
 
 privileges of, 628. 
 
 who may be admitted, 628. 
 
 how far responsible, 631, n., 715. 
 
 when privileged from arrest, 766. 
 
 communications to are privileged, 798. 
 
 right of under-sheriff to practice as, 
 92. 
 
 contempt of court by, 993. 
 Attorney in fact. (See Agents.) 
 *3i.ttomey-general, 629. 
 
 information by, 751, 1029. 
 
 Attorney, warrant of to confess judg- 
 ment, 809. 
 Attornment, 264, 429, 436, 435, 461, 
 
 4''3- 
 Auditors, 714. 
 Aula regia, or regis, 633, 634, 636, 638, 
 
 643, 648, 649. 
 Authority of agent, express or implied, 
 
 137, n. 
 Atitrefois acquit, plea of, 1019. 
 
 attaint, plea of, 1020. 
 
 convict, plea of, 1019. 
 Avoidance of a deed, 456. 
 
 plea of, 775. 779- 
 Avowry, 703. 
 Award, 622. 
 
 Backing warrants, 998. 
 Bacon, Lord, 71. 
 
 upon uses, 473, 646. 
 Bail, defined, 767. 
 
 above, 767, 
 
 below, 767. 
 
 common, 765. 
 
 excessive, 68, n., 75, rooi. 
 
 justifying or perfecting, 768. 
 
 special, 765, 767, 768. 
 
 to the action, 767. 
 
 bail-bond, 767. 
 
 bail-piece, 768. 
 
 liability of bail, 816. 
 
 in criminal cases. Tool. 
 
 what offences bailable, 1002. 
 
 power of justices to allow, 103, n., 
 1002. 
 Bailees, larceny by, 965, n. 
 
 larceny from, 964, n. 
 Bailiff, 92, 132. 
 
 and burgesses, 189. 
 
 contempt of court by, 993. 
 Bailiwick, franchise of, 235. 
 
 defined, 91. 
 Bailment, law of, 560-562. 
 
 1. depositum, or deposit, 562, n. 
 
 2. mandatum, to do without recom- 
 pense, 562, ii. 
 
 3. commodatum, loan for use, 562, 
 note. 
 
 4. pighus, or pledge, 561, 562, n. 
 
 5. locatio, 562, n. 
 common-carriers, 139, n., 562, n. 
 
 Bailor and bailee, right of to sue, 517, 
 
 563- 
 general rights and duties of, 56i-< 
 
 563- 
 
 title of each in goods bailed, 517. 
 
 bailee has qualified property, 517. 
 Bail-piece, 768. 
 Banishment, punishment by, 77. 
 
INDEX. 
 
 \The numbers refer to the top paging.'] 
 
 1 109 
 
 Banishment, of husband enables wife to 
 sue in her own name, 156. 
 
 as causing civil death, 71, 72. 
 Bank, days in, 758. 
 Bankruptcy, 432, 579-588. 
 
 distinguished from insolvency, 580, n. 
 
 who may become a bankrupt, 581- 
 585. 
 
 acts of bankruptcy, 583, n., 585, 586. 
 
 adjudication of, 586. 
 
 forfeiture of lands by, 432. 
 
 U. S. bankrupt law, 582, n. 
 
 voluntary and involuntary, 583, n. 
 
 duties of assignee in bankruptcy, 587. 
 
 discharge of bankrupt, 584, 11., 588. 
 
 fraudulent, 919. 
 
 jurisdiction of equity over, 821. 
 Banns, 146, 149, n., 150. 
 Bar of dower, 319, 409. 
 
 of estate tail, 299-302. 
 Bar, plea in, 775-779, 835, 1019. 
 
 trial at, 788, 1023. 
 Bargain and sale of lands, 478. 
 
 enrolment of, 479. 
 Baron and feme. (See Husband and 
 
 Wife.) 
 Barons, greater, 633. 
 
 of the exchequer, 638, 639. 
 Baron, court, 250, 280. 
 Barony, 280. 
 Barratry, 904. 
 Barristers, 629. 
 
 claim for fees, 630. 
 
 action against, 630, 631, n. 
 
 communications to are privileged, 
 798. 
 Barter, 553. 
 Base fees, 294, 335. 
 
 services, 255, 282, 285. 
 Bastards, 151, 152, n., 169, 282. 
 
 who are, 169-171. 
 
 rights and disabilities of, 173. 
 
 cannot inherit, 173, 405. 
 
 maintenance of, 172. 
 
 who are heirs of, 174. 
 
 how legitimated, 174. 
 
 settlement of, iii, 174. 
 
 custody of, 174, n. 
 
 effect of their dying intestate, 604. 
 
 remainder to unborn bastard, invalid, 
 350. 
 Battel, trial by, 1023. 
 Battery. (See Assault and Battery. ) 
 Bearing arms, right of, 83. 
 Behavior, good, security for, 980, 982. 
 Bees, property in, 514. 
 Bench, common, court of, 633. 
 
 free, 312, 315. 
 Benefice, in feudal law, 243, n., 247. 
 
 Benefit of clergy, 26, n., 1030. 
 Beijuest. (See Legacy, Will, Testa- 
 ment.) 
 Beyond seas, effect of husband's 
 
 absence, 172. 
 Bible, right of printing, 533. 
 Bigamy, 145, 924. 
 
 proof of marriage in trial for, 
 
 150, n., 696. 
 divorce for, 151, u. 
 Bill in equity, 832. 
 dismissal of, 839. 
 of exceptions, 800. 
 of exchange, 574. 
 foreign and inland, 575. 
 consideration presumed, 552, m., 
 
 553. 
 acceptance of, 576. 
 parties to, 575. 
 indorsement of, 576. 
 protest of, 577. 
 notice of dishonor, 576. 
 of indictment, 1005. 
 of Middlesex, 764. 
 of privilege, 766. 
 of review, 842. 
 of interpleader, 837. 
 Bill of rights, 67, 89. 
 forbids excessive bail or fines, 68, n., 
 
 75- 
 forbids taxing without consent, 8l. 
 forbids illegal suspension of laws, 82. 
 sanctions right of petition, 83. 
 and of bearing arms, 84. 
 Bills of mortality, 797. 
 Bills or notes not subject to larceny, 969. 
 
 forgery of, 977, n. 
 Bishop is sole corporation, 188, 191. 
 
 (See Ordinary.) 
 Black-act, 711. 
 Black-mail, 240. 
 
 Blackening memory of dead, gi6, u. 
 Blanch-farms, 240. 
 Blood, corruption of, 408, 410, 1020, 
 
 1038. 
 Boc-Iand, 279. 
 Body c-orporate, 185. 
 Body politic, 62, 185. 
 Bona notabilia, 658. 
 Bona vacantia^ 532. 
 Bonds, in general, 480. 
 single, 480. 
 condition of, 480. 
 consideration presumed, 551, n., 552, 
 
 553. n- 
 equitable relief from penalty, 826, 83a 
 forgery of, 978, n. 
 respondentia and bottomry, 567, 57a 
 not subject to larceny, 969. 
 
IIIO 
 
 INDEX. 
 
 \Tke numbers refer to the top paging^ 
 
 Book land, 279. 
 
 Borough, 273. 
 
 Borough English, 41, 273. 
 
 Borrowing, 563. 
 
 Borsholder, 104. 
 
 Botes, 230, 304, 326, 430. 
 
 fire-bote, 230, 326. 
 
 house-bote, 230, 430. 
 
 hay-bote, 230, 326. 
 , plough-bote, 230, 430. 
 Bottomry, 567, 570. 
 Bound bailiffs, 93. 
 Boundaries of land, 221, a. 
 Bracton, 39, 255, 270. 
 Breach of peace, 912-915. 
 arrest for, 90, 999. 
 
 of promise of marriage, 142, n. 
 
 of prison, go2. 
 
 of trust, 965, n., 971. 
 Bread, assize of, 923. 
 Breaking in burglary, actual and con- 
 structive, 961. 
 Breaking bulk, 965, n. 
 Breaking of doors by officer, 813, 817, 
 
 913. 958. 
 Brevia testata, 455. 
 Bribery, 911. 
 Bridewell, 109. 
 Bridges, repair of, 106, 927. 
 
 nuisance to, 927. 
 Britton, 39, 271, 313. 
 Brooke, 39. 
 Bulls, papal, 48. 
 Burden of proof, 927. 
 Burgess, iSg. 
 
 Burgage, tenure in, 272, 273. 
 Burglary, 958. 
 
 as to time, 959. 
 
 as to place, 959. 
 
 as to the residence, 960. 
 
 as to mode of committing, 961. 
 
 there must be a breaking, 961. 
 
 also an entry, 962. 
 
 as to intent, 962. 
 
 homicide to prevent, 931. 
 
 place of trial of, 1006. 
 By-laws of corporation, 195, 197. 
 
 Calendar month, 323. 
 Cancellation of deed, 456. 
 
 of will, 500, 601. 
 Canon law, 48, 49. 
 
 mode of reckoning degrees of rela- 
 tionship, 381. 
 Canons of inheritance, 382-399. 
 Canonical disabilities to marry, 143, 151. 
 Capias, as criminal process, 1012. 
 
 ad respondendum, 760, 761, 762, 814. 
 testatum capias, 762. 
 
 Capias, ad satisfaciendum, 814, 815. 
 
 utktgatum, 763, 1013. 
 
 for payment of fine, 810. 
 Capita, distribution /^;", 389, n., 614. 
 Capital punishment, 72, 852, 859, 896, 
 
 1045., 
 Capite, tenants in, 255, 265, 269, 280, 
 
 435. 
 Caption in larceny, 964-967. 
 
 in robbery, 974, n. 
 Capture of enemy's goods, 523. 
 Carelessness, crime caused by, 867. 
 
 (See Negligence.) 
 Carriers, 562, n. 
 
 of goods, 562, n., 715. 
 
 of passengers, 139, n. , 562, n. 
 Cart-bote, 230. 
 Ca. sa., 814, 815. 
 Case, action on the, 637, 643, 678, 714, 
 
 735, 742. 790- 
 
 arrest in, 761. 
 
 distinguished from trespass, 705, 735- 
 Case, special, 802. 
 Cassetur, 774. 
 Casual ejector, 729, 731. 
 Cattle, trespass by, 736. (See Animals.) 
 Causes of action, survival of, 773. 
 Caveat emptor, 560, n. 
 Censure, ecclesiastical, 666. 
 Central criminal court, 988 n. 
 Certificate to show settlement, no, 113. 
 
 to show service of apprenticeship, 
 131, n. 
 Certiorari, writ of, 986, 990, 993, 1013. 
 Cession, law of, 581. 
 Cestrensis, 32. 
 Cestui que trust, 470. 
 
 que vie, 305, 413. 
 
 que use, 426, 470-478. 
 Challenge of jury, 792. 
 
 to the array, 792. 
 
 to the polls, 793. 
 
 principal, 793. 
 
 to the favor, 793. 
 
 in criminal cases, 1024. 
 
 peremptory, 1024. 
 Challenge to fight, 915. 
 Champerty, 905. 
 Chance, as affecting liability for crime, 
 
 867. 
 Chancellor, lord, 633, 640, 647, n. 
 
 of university, 192. 
 Chance-medley, 933, 934. 
 Chancery, court of, 28, n., 640, 647, n,, 
 823-328. (See Equity.) 
 
 common law jurisdiction of, 641, 821. 
 
 equitable jurisdiction of, 642, 643, 
 820-832. 
 Chancery guardian, 177, n., 278, 82a 
 
INDEX. 
 
 [The nutnbers refer ta the top paging.'\ 
 
 Charge upon lands, 436, 480. 
 Charitable corporations, i8g, 192. 
 Charitable uses, ig8, 199, n., 302, 427, 
 499, 641. 
 
 cognizance of, 821. 
 Charter-deed, 442, 536. 
 Charter of corporation, 191,192, n.,204,n. 
 
 of the forest 515. 
 Chartulary, 483. 
 Chase, 236. 
 Chattels, 508, 511. 
 
 title to by marriage, 541, 542. 
 by succession, 538, 539. 
 
 personal, 511. 
 
 real. 509, 510. • 
 ouster of, 728. 
 
 property in, 511-520. 
 
 forfeiture of, 533, 876, 1012, 1038. 
 
 gifts of, 546. 
 
 cannot be entailed, 297, 520, 
 
 may be limited in remainder, 520. 
 
 joint ownership of, 521. 
 
 larceny of. (See Larceny.) 
 Chaud-medley, 933, 934. 
 Chaunteries, 426, 842. 
 Cheating, offence of, 921. 
 Chief-justices, 635. 
 
 justiciar, 633, 634. 
 
 rents, 240. 
 Chief, tenant in, 255. 
 Children. (See Infants, Bastards, Par- 
 ent and Child, Abduction.) 
 Chivalry, tenure by, 256, 257. 
 
 court of, 634. 
 
 guardian in, 178; 260, 264, n., 431. 
 Chose in action, 518. 
 
 how assigned, 519, n., 549. 
 
 husband's right to wife's, 541. 
 Christ's hospital, 108. 
 Church, pews in, 537. 
 
 parson is sole corporation, 188. 
 Churchwardens, 189, 191. 
 Church-yards, 426. 
 Cicero, notion of government, 16. 
 
 as to repeal of laws, 58. 
 Circuits, 650, 789, 790. 
 Circuit courts of U. S. 653, n. 
 Circumspecte agatis, statute of, 50. n. 
 Circumstantial evidence, 798, 1028, n. 
 Cirographum, 442. 
 
 Citation, in ecclesiastical courts, 666. 
 Citing of statutes, 50. 
 Citizens, natural born, 114-122, 124, n. 
 
 naturalized, 123, 124, a. 
 
 rights and disabilities of, 123, 124. 
 Citizenship, 121, 124, n. 
 Civil action, 637, 717, n. 
 Civil corporations, 188. 
 
 visitation of, 200. 
 
 Civil death, 71, 72, 304. 
 Civil law, in general, 46, 47. 
 rule of as to guardianship of infants, 
 
 175, 177- 
 as to parents' consent to child's mar. 
 
 riage, 147. 
 declares marriage of lunatic void, 148. 
 grounds of divorce allowed by, 152. 
 considers husband and wife distinct 
 
 persons, 158. 
 allows husband to correct his wife, 
 
 159- 
 rule as to legitimacy of children, 160, 
 
 170. 
 as to maintenance of children, 161. 
 as to father's power over children, 
 
 166. 
 as to marriage of widow, 171. 
 doctrines as to corporations, 187, 190. 
 mode of reckoning degrees of re- 
 lationship, 382. 
 rule oi plenum dominium, 459. 
 doctrine oi jus iegitimum, jus fidu- 
 
 ciarum, 3.ni jus precarium , 470. 
 doctrine of accession and confusion, 
 
 526. 
 division of contracts, 550. 
 as to warranty in sales, 559. 
 as to capacity to make a will, 597, ' 
 
 598. 
 as to execution of wills, 600, 601. 
 as to inofficious will, 602. 
 as to legacies, 61 (. 
 as to collatio bonorum, 614, 
 as to malpractice, 677. 
 as to justifying defamation, 681. 
 as to serving process in a man's 
 
 house, 766. 
 doctrine of compensatio or stoppage, 
 
 766. 
 pleadings in, 779. 
 
 as to infants' liability for crime, 862. 
 as to bribery, 911. 
 as to excusable homicide, 934. 
 as to rape, 952. 
 as to kidnapping, 955. 
 as to arson, 956. 
 as to robbery, 976. 
 as to forgery, 977. 
 as to proof of crime, 987. 
 Civil liberty, 64. 
 
 Clarendon, constitutions of, 424, 644. 
 Clementine constitutions, 48. 
 Claim to land, 462, 720. 
 
 in case of conveyance by fine, 491, 
 492. 
 Clergy, benefit of, 26, n., 1030. 
 Clergy, civil death of, 71. 
 Clergyman, privilege from arrest, 766. 
 
INDEX. 
 
 \Tke numbers refer to the top paging^ 
 
 Clerk, in ecclesiastical senses, 1031, 
 
 1032. 
 Clerk, embezzlement by, 971, n. 
 Client, 630. 
 Close rolls, 4S6. 
 Close writs, 486. 
 Code of Justinian, 46. 
 
 of Theodosius, 47. 
 
 of Alfred, 32. 
 Codicil, 59g. 
 Coercion, how far it excuses crime, 
 
 868, 869. (See Duress.) 
 Cognati, 397. 
 Cognizance, in replevin, 703. 
 
 of pleas, 235. 
 Cognizee of a fine, 490. 
 
 of recognizance, 482. 
 Cognizor of a fine, 490. 
 
 of recognizance, 482. 
 Cognovit actionem, 775. 
 
 judgment by, 809. 
 Cohabitation, 148, 150, n. 
 Coke, Sir Edward, 38, 95, 192, 220, 
 
 320, 507, 646. 
 Collateral consanguinity, 378. 
 
 descent, 390. 
 
 relatives, 383, n., 390. 
 
 warranty, 449. 
 Coltatio bonortim, 614. 
 Colleges, 186, 189. 
 
 their visitors, 201, 202. 
 Color in pleading, 779. 
 Colored persons, naturalization of, 124, 
 note. 
 
 citizenship of, 124, n. 
 
 slavery of, 128, 129. 
 Conies stabuli, 104. 
 Commission of review, 658. 
 
 of assize, 650, 723. 
 
 of nisi prius, 650. 
 
 of the peace, 650, 988. 
 
 of oyer and terminer, 650, 987, 989. 
 
 of jail delivery, 650, 989. 
 
 of lunacy, 148. 
 
 of rebellion, 834. 
 
 to take deposition in chancery, 837, 
 838. 
 
 of justices of the peace, 99-101. 
 Commitment of persons accused, 103, 
 
 n., 1000. 
 Committee of lunatic, 439, n., 821. 
 Commodatum, or loan, 562, n. 
 Common assurances, 441. 
 Common, rights of, 228. 
 
 of estovers, 228, 230, 744. 
 
 of pasture, 228. 
 appendant, 228. 
 appurtenant, 229, 421. 
 ty viduage, 229. 
 
 Common, in gross, 22g, 421. 
 
 of piscary, 230, 237. 
 
 of turbary, 230. 
 
 without stint, 22g. 
 
 may be entailed, 297. 
 
 waste to, 744. 
 
 approving of, 229. 
 Common bail, 765. 
 Common bench, court of, 633. 
 Common carriers, 562, n., 715. 
 Common, estate in, 368. 
 
 how created, 369. 
 
 unities in, 368. 
 
 partition of, 370. 
 Common jury, 791. 
 Common informer, 544. 
 Common law, 29, 33, 190. 
 
 of the United States, 33, n. 
 Common nuisance, 139, n, 140, 850^ 
 
 926. 
 Common occupancy, 414. 
 Common, ownership in, 521. 
 Common pleas, 635. 
 
 court of, 633-635. 
 Common recovery, 493. 
 
 used to bar entails, 300, 302, 493, 
 
 495- 
 
 and remainders and reversions 
 
 thereon, 493, 496. 
 
 used to defeat estate for years, 324. 
 
 conveyance by, 292, 495, 496. 
 
 origin of, 425, 493. 
 Common, tenant in, of lands, 368. 
 
 of chattels personal, 521. 
 Common vouchee, 494. 
 Common walls, 233, n. 
 Commonable beasts, 228. 
 Communications, privileged, 681, 683, 
 note. 
 
 to lawyers, 798. 
 Communion of goods, 208. 
 Compassing the death of the King, 
 
 &c., 886, 887. 
 Compact. 9. 
 Covipensatio , 776. 
 
 Compensation in case of eminent do- 
 main, 79. 
 Compensation of guardian, 180, n. 
 Competency of witnesses, 798. 
 Complaint, 782, n. 
 Composition, with creditors, 588, n. 
 Composition deed, 588, n. 
 Compound larceny, 972. 
 Compounding felony, 904. 
 Compulsion, when it excuses crime, 
 
 868. 
 Compurgators, 836, 1032. 
 Concealed weapons, right to carry, 
 
 84, ". 
 
INDEX. 
 
 [ The numbers refer to the top paging^ 
 
 III3 
 
 Concord in a fine, 490. 
 Condition, 220, 294, n., 332. 
 
 breach of, 336, 348, 430. 
 
 estate on, 332-344. 
 
 in deed, 335. 447. 
 
 distinguished from limitation, 294, 
 n-> 335- 
 
 from conditional limitation, 294, n. 
 
 of a bond, 481. 
 
 in a lease, 328, n. 
 
 of a recognizance, 482. 
 
 impossible, 337. 
 
 repugnant to grant, 293, n., 337. 
 
 precedent and subsequent, 334. 
 
 affects curtesy how; 309, n., 337. 
 
 when assignable by assignees of a 
 reversion, 709. 
 Conditional fees, 295, 334. 
 
 pardon, 1043. 
 Conditional limitation, 294, n., 309, 
 
 n., 336- 
 Condonation, in divorce suit, 151, n. 
 Confession and avoidance, plea of, 775, 
 
 779- 
 Confession by prisoners, 1026, lozy, n. 
 
 of action, 775, 779, 809. 
 
 of indictment, 1017. 
 
 of crime, 1026. 
 Confiriiiatio chariarum, 66, 258. 
 Confirmation of lands, 468. 
 Conflict of laws, as affecting marriage, 
 
 149, n. 
 Confusion, title by, 526. 
 Conjugal rights, writ for restitution of, 
 
 663. 
 Conquest, defined, 245, 401. 
 Consanguinity, 143, 377. 
 
 annuls marriage, 143, 663. 
 
 lineal and collateral, 377-382. 
 
 degrees of, 377-382, 603. 
 
 table of, 379. 
 Conservators of the peace, 97, 98. 
 Consideration of contracts, 550, 551. 
 
 good and valuable, 444, 550. 
 
 must be legal, 550, n. 
 
 adequacy of, J50; n. 
 
 when moral obligation sufficient, 552, 
 note. 
 
 when must be proved, 552, n. 
 
 presumed in bonds and negotiable 
 paper, 551, 552.553- 
 
 of deeds, 443. 
 
 to raise a use, 472. 
 Consistory court, 657. 
 Conspiracy, crime of, 907, 908, 
 
 action of, 684, 760, 908. 
 Constable, 103. 106, n., 998. 
 
 origin of the name, 104. 
 
 high and petty, lOd, 
 
 Constable, appointment of, 104. 
 
 arrest by, 998. 
 
 right to prevent affrays, 913. 
 
 liabilities, and protection of, 105. 
 
 duties of, 105. 
 Constitution, English, 15, 66, 81, 84. 
 
 of United States, 15, n., 79, n. 
 14th and isthamendmentsof, 124, 
 note. 
 Constitutions of Clarendon, 424, 644. 
 
 of the civil law, 47. 
 
 of the canon law, 48. 
 legatine and provincial constitu- 
 tions, 48. 
 Constitutionality of laws, 15, n. 
 Construction of deeds and wills, 504, 
 505. 
 
 of statutes, 22-27, 52-58, 823. 
 
 of public grants, 487. 
 
 of libels, 916, n. 
 Consul, to what law subject, 882, n. 
 Contempt of court, 899, 992, 993. 
 
 by judges, 993. 
 
 by sheriffs, bailififs, &c., 993. 
 
 by attorneys, 993. 
 
 by jurymen, 993. 
 
 by witnesses, 993; 
 
 by parties to suit, 993. 
 
 by other persons, 994. 
 
 attachment for, 833, 992, 995. 
 Contingency, not alienable, 437. 
 Contingent legacy, 610. 
 
 remainder, 349, 350. 
 
 uses, 475. 
 Continual claim, 462, 720. 
 Continuance, 783. 
 
 of nuisance, 742. 
 Continuando in trespass, 737. 
 Continuous easement, 232, n. 
 Contract, title to property by, in gen- 
 eral, 548-578- 
 
 distinguished from a law, 9. 
 
 different kinds of, 549, 553. 
 
 simple, 573, 709. 
 
 special, 573. 
 
 express, 549, 706-710. 
 
 implied, 549. 710-717- 
 
 executed, 550. 
 
 executory, 550. 
 
 consideration of, 550, 551. 
 
 good or valuable, 444, 550, 551. 
 
 of marriage, 141. (See Husband 
 and Wife.) 
 
 to marry, 142, n., 146, n. 
 
 of married woman. (See Husband 
 and Wife.) 
 
 bonds, 480. 
 
 of sale or exchange, 553. 
 
 of bailment, 562. 
 
III4 
 
 INDEX. 
 
 \The nuTnbers re/er to the top paging^ 
 
 Contract, of hiring and borrowing, 563. 
 
 .of debt, 572, 706. 
 
 of record, 710. (See Recognizance.) 
 
 of covenant, 708. 
 
 of infant. (See Infant.) 
 
 of corporation. (See Corporation.) 
 
 injuries by breach of, 706-717. 
 
 action on, 673. 
 
 specific performance of, 829. 
 
 obligation of not to be impaired, Igo, 
 n., 204, n., 235, n. 
 Contractor, distinguished from ser- 
 vant, 139, n. 
 
 employer's liability for, 139, n. 
 Conventional life estates, 303. 
 Conveyances, 440, 457. 
 
 by common law, 457. 
 
 by statute of uses, 457. 
 
 original, 457. 
 
 derivative, 457. 
 
 fraudulent, 55, 444, 535, 547, 906. 
 
 by act of parliament or the legisla- 
 ture, 483. 
 
 of land in fee simple. 291, 292. 
 
 of land on stream or highway, 220, n. 
 
 (See Deed, Will, Devise, Alienation, 
 Record.) 
 Conviction for crime, 1030. 
 
 summary, 991. 
 
 forfeiture upon, 1036, 1038. 
 Coparceners, 365, 387. 
 
 partition by, 466. 
 Copyholds, 269, 279, 284. 
 
 dower in, 315. 
 
 when they may be entailed, 297. 
 
 conveyance of, 460. 
 Copyright, law of, 528, 529. 
 
 when vested in the crown, 532. 
 Cornage, tenure by, 266. 
 Corody, 228. 
 Coroner, 94. 
 
 origin of the name, 94. 
 
 how appointed, and duties of, 94, 
 
 how removed, 95. 
 
 judicial powers of, 95, 1004. 
 
 ministerial powers of, 96. 
 
 duty on taking inquest, 96. 
 
 arrests by, 998. 
 
 may execute writs instead of sheriff, 
 
 790. 
 Corporations, law as to, 184-205. 
 are artificial persons, 62, 185. 
 origin of, 187. 
 aggregate and sole, 187, 195, 196, 
 
 355, 539- 
 ecclesiastical and lay, 188, 200. 
 public and private, 189, n. , 192, n. 
 civil and eleemosynary, 188. 
 
 Corporations, modes of creation, 190- 
 192. 
 
 by common law, 190. 
 
 by prescription, igi, 192, n. 
 
 by legislative act, 191, 192, n. 
 
 by letters patent or charter, 191. 
 inviolability of charter in U. S. , 192, 
 
 n., 204, n. 
 capacities and powers, 193. 
 name of, 193. 
 right of succession, 193. 
 amotion and disfranchisement in, 
 
 194, n., 203. 
 membership in stock and other cor- 
 porations, 193, n. 
 corporate meetings, how quorum 
 
 formed and corporate acts done, 
 
 194, n., 197, 198, 11. 
 actions by, and against, 193. 
 responsibility for acts ultra vires, 
 
 194, n. 
 
 power to acquire and hold land, 194, 
 196, n., 198, 199. 
 
 power to acquire personal property, 
 538, 539- 
 
 power to make contracts, 194, n., 
 195. 
 
 bound by acts of agents, 195, n. 
 
 power to take land by devise, igB, 
 199, n., 499. 
 
 may exercise right of eminent do- 
 main, 79, n. 
 
 right to make leases, 464. 
 
 acting with common seal, 195. 
 
 power to make by-laws or statutes, 
 I95-I97- 
 
 ordinances of public corporations, 
 
 195. ". 
 
 visitation of, 199-203. 
 
 their dissolution, 203, 204. 
 
 disposal of property upon dissolu- 
 tion, 204, 412. 
 
 grounds of forfeiture of charter, 
 205. 
 
 taking of by succession, 538-540. 
 
 grants to, 293, 423, • 
 
 liability for torts, 196, n. 
 
 liability for crimes, ig6, n. 
 
 privileged from arrest, 766. 
 
 cannot be outlawed or excommuni- 
 cated, 197. 
 
 how affected by statutes of mortmain, 
 198, 423-428. 
 Corporeal hereditaments, 219, 220. 
 
 seizin of, 290. 
 
 nuisance to, 739. 
 
 may be entailed, 297. 
 
 conveyance of, 458-479. 
 Corpus juris canonici, 48. 
 
INDEX. 
 
 [Tie numiers refer to the top faging^i 
 
 tii5 
 
 Corpus juris Hvilis, 47. (See Civil 
 
 Law.) 
 Corptts delicti, 1028, n. 
 Correction of servant by master, 139, 
 933- 
 
 of wife by liusband, 159. 
 
 of ciiild by parent, 167, 676, 933, 
 
 of pupil by teacher, 168. 
 Corruption of blood, 408, 410, 1020, 
 
 1038. 
 Corsned, trial by, 1022. 
 Costs, 545, 791, 811. 
 
 treble, 77. 
 
 in equity, 840. 
 Council, committee of orivy, 648, n. 
 Counsel (see Barrister), 629. 
 
 now allowed to prisoner, 1025. 
 Count in pleading, 769, 770. 
 Counterclaim, 782, n. 
 Counterparts of deed, 442. 
 County, duty to care for bridges, 106. 
 County-courts, 632, n., 655. 
 County palatine, 235. 
 Courts. 
 
 IN GENERAL, 625-660. 
 of record, 626. 
 not of record, 626. 
 admiralty, 49, 142, n., 659. 
 assizes, 649, 650, 723, 790, 989. 
 chancery or equity, 28, n., 635, 640, 
 
 647. n., 823-828. 
 of chivalry, 634. 
 common pleas, 633-635. 
 county, 632, n., 655. 
 court-baron, 250, 280, 627. 
 court-leet, 104, 105, 116, 235. 
 duchy court of Lancaster, 822. 
 ecclesiastical, 49, 142, 144, 595, n., 
 
 654-659- 
 exchequer, 635, 638. 
 exchequer chamber, 635, n., 638, ii., 
 
 647, 812. 
 King's bench, 635, 636, 812. 
 House of Lords, 648, 651, n. (See 
 
 Lords, House of.) 
 military, 49. 
 of probate, 142, 11., 595, n., 651, n., 
 
 660, n. 
 of divorce, 142, n., 651, n., 665, n. 
 nisi prius, 649, 650, 790. 
 of wards and liveries, 262, 269. 
 of star-chamber, 82, 457, 834, 897, 
 of the universities, 49. 
 supreme court of judicature, 651, n. 
 high court of justice, 651, 11. 
 court of appeal, 651, n. 
 courts of the United States, 653, n. 
 right to apply to courts for redress, 
 
 81. 
 
 Courts, 
 
 CRIMINAL. 
 
 of parliament, 984. 
 
 of king's bench, 986. 
 
 of admiralty, 987. 
 
 central criminal court, 988, n. 
 
 of quarter sessions, 989. 
 
 of sessions, 103, n. 
 
 commission of assize and nisi fitius, 
 
 988. 
 of the peace, 988. 
 of oyer and terminer, 650, 987, 988, 
 
 989. 
 of general gaol delivery, 650, 988, 989. 
 Covenant, in general, 708. 
 in a deed, 451, 708. 
 covenants running with the land, 
 
 469, u. 
 usual covenants in deeds, 451, n. 
 in lease, 328, n., 469, n. 
 to stand seized to uses, 478. 
 when enforceable by assignee of re- 
 version, 709. 
 action of, 708. 
 Coverture, 154. (See Husband and 
 
 Wife.) 
 Creditors, may impeach fraudulent con- 
 veyances, 444, n. 
 right to reach land devised, 503. 
 may enforce claims against property, 
 
 293, n., 436, 816-818. 
 as witnesses to will, 502. 
 Crime against nature, 954. 
 Crimes, the nature of, 618, 845-850. 
 divided into felonies and misde- 
 meanors, 848, n. 
 persons capable of committing, 860- 
 
 873. 
 Iiabilityofinfantsfor,l8i,l85,n.,862. 
 of married women for, 870- 
 of corporations for, 196, n. 
 attempts to commit, 857. 
 forfeiture for. (See Forfeiture.) 
 arrest for. (See Arrest.) 
 punishment of, 851. (See Treason, 
 Homicide, Arson, Burglary, Lar- 
 ceny, Rape, &c.) 
 Criminal conversation, 695. 
 
 proof of marriage in trial for, 1 50, n., 
 
 696. 
 evidence in cases of, I57> "• 
 Croft, 222. 
 
 Croke, reports of, 38, n. 
 Cross bills, 837, 839. 
 Cross remainder, 506. 
 Crown, pleas of the. (See Pleas of 
 the Crown.) 
 injuries affecting, 749. 
 Cruelty, divorce for, 151, n., 663. 
 
iii6 
 
 INDEX. 
 
 [ The numbers refer to the top paging."] 
 
 Cruel punishments forbidden, 68, n. 
 Curator, of the Roman law, 175. 
 Curtesy, tenant by, 308. 
 
 origin of estate, 308. 
 
 requisites of, 309. 
 
 initiate, 309, 311. 
 
 consummate, 311. 
 
 in estates tail, 299. 
 
 in conditional estates, 309, n. 
 
 in equitable estates, 310, n., 315, n., 
 
 473, 478. 
 
 effect of statute of uses upon, 475. 
 
 effect of divorce upon, 313, n. 
 
 waste by tenant, 431. 
 Curtilage, 222, n., 960. 
 Custody of idiots and lunatics, 821. 
 
 of ward, 1 78, n. 
 
 of bastard, 174, n 
 Customs, general. 29, 33. 
 
 particular, 29, 40-45, 540. 
 
 title by, 535-537- 
 
 dower by, 316. 
 
 distinguished from prescription, 418. 
 
 of trade or business, 42, n. 
 
 private, how pleaded, 41. 
 
 of merchants, 41, 880. 
 
 of London, 41, 42. 
 
 on imports, 531, 919. 
 Custos rotulorum, 97, ggo. 
 Cy pres doctrine, 52, n. 
 
 Damage-feasant, cattle, 621, 736. 
 Damages, title acquired by, 545. 
 
 stated or liquidated, 827. 
 
 in replevin, 703. 
 
 in trover, 705. 
 
 in trespass and case, 706. 
 
 in assumpsit, 707. 
 Damnum absque injuria^d^l, 741, 744' 
 Danish laws, 31. 
 Date of a deed, 413, n., 452. 
 
 of writs, 757. 
 Day, how reckoned, 323. 
 Days in bank, 758. 
 Days flf grace, 577. 
 £)e la plus belle, dower, 316. 
 Dead bodies, stealing, 537, 971. 
 Deaf and dumb persons, wills of, 597. 
 Dean and chapter, 187, 188. 
 Dean of the arches, 657. 
 Death, civil or natural, 71, 72, 304. 
 
 as punishment for crime. 72, 852, 
 859. 10^5- 
 
 by homicide. (See Homicide.) 
 
 injuries causing, 674, n. 
 Debet, action of debt in, 708. 
 De bono et nialo, writ, 989. 
 Debt, action of. 637, 706, 710. 
 
 in the debet, 708. 
 
 Debt, in the detinet, 708. 
 
 arrest in, 761. 
 
 contract of, 572, 706. 
 
 of record, 573, 607. 
 
 by specialty, 573, 607, 707. 
 
 information of, 751. 
 
 by simple contract, 573, 607, 707. 
 Debts, payment of, enforced against 
 property, 293, n., 436, 816-818. 
 
 against land devised, 503. 
 
 by feudal law, land not chargeable 
 with debts, 434. 
 
 payment of by executor or adminis- 
 trator, 607. 
 Deceit, action for, 716, 760. 
 Decisions, effect of, 36. 
 Declaration, 769. 
 Declaratory part of law, 20. 
 Declaratory statutes, 51. 
 Decree in equity, 840. 
 
 how enforced, 841. 
 
 in ecclesiastical courts, 666. 
 Decretals, 48. 
 Dedimus potestatem, writ of, 99, 100, 
 
 490, 837. 
 De donis, statute of, 296, 300, 450, 495. 
 Deed, alienation by, 441-483. 
 
 conveyance of fee simple by, 291, 
 292. 
 
 indenture, what, 442. 
 
 deed-poll, what, 442. 
 
 voluntary, or upon consideration, 
 
 443, 444- 
 requisites of, 443. 
 
 persons capable of making, 436—440. 
 parties to, 443. 
 reading of, 452. 
 must be written, 445. 
 sealing of, 452. 
 signing when necessary, 452. 
 delivery necessary, 454. 
 execution, manner of, 454. 
 attestation of, 454. 
 acknowledgment of, 103, n., 455, 
 note. 
 
 by married women, 158, n., 490, 
 492. 
 contents of, 446-451. 
 
 premises, 446. 
 
 habendum, 446. 
 
 tenendum, 446. 
 
 reddendum, 447. 
 
 conditions, 447. 
 
 warranty, 447. 
 
 covenants, 451. 
 conclusion, 452. 
 
 various species of, 457-470, 478, 479. 
 proof of old, 796. 
 proof of modem, 796. 
 
INDEX. 
 
 iiij 
 
 [ TAe numbers refer to the top paging^ 
 
 Deed, when void as against subsequent 
 purchasers, 444, n. 
 
 alteration of, 456. 
 
 construction of, 504, 505. 
 
 how avoided, 456. 
 
 of married women, 188. 
 
 of infants, 183, n. 
 
 larceny of, 969. 
 Deed-poll, 442. 
 
 Default, judgment by, 771, 783, 808, 
 809. 
 
 in equity, 839. 
 Defamation, injury by, 678-685. 
 Defeasance, deed of, 469, 482. 
 
 in a mortgage, 339, b., 469. 
 Defence in pleading, 771. 
 Defence of person, 69, 619, 676, 933. 
 
 of servant or master, 135, 935. 
 
 of wife or child, 619, 935. 
 
 of property, 676. 
 Defendant, 627. 
 Defensive allegation, 666. 
 Deforciant, 490. 
 Delegates, court of, 658. 
 Delivery of a deed, 454. 
 Delivery of goods, actual or construc- 
 tive, 548, n. 
 Demandant and tenant, 494, 673, 722, 
 
 723, 724. 
 Demesne, 289, 290. 
 
 ancient, 284. 
 Demesne lands, 279. 
 Demise of land, 464. 
 Democracy, 16. 
 
 Demonstrative legacy, 609, 610, n. 
 Demurrer, 7S2. 
 
 general or special, 782. 
 
 joinder in, 782. 
 
 trial of, 785. 
 
 in equity, 835. 
 
 to evidence, 800. 
 
 to indictment, 1018. 
 Demurrer book, 784. 
 Denizen, 122, 406. 
 
 right to own land, 122, 
 
 political disabilities of, 122. 
 Deodand, 96, n., 235, 420, 750, 1008. 
 Departure in pleading, 780. 
 Deposit of title deeds, mortgage by, 
 
 339- 
 ■ Depositions in chancery, 838. 
 
 in ecclesiastical courts, 666. 
 Depositum, 561, u. 
 De proptietate probanda, writ of, 702. 
 Deputy-sheriff, 92. 
 Dereliction, title by, 417- 
 De religiosis, statute, 424. 
 Derivative conveyances, 467. 
 Descent of lands, 375-399- 
 
 Descent, of title by, in general, 215, 
 
 375- 
 mode of reckoning relationship, 377- 
 
 382. 
 rules of, 382-397. 
 distinction between purchase and 
 
 descent, 119, n., 376, 400, 401. 
 lands descend to issue of person 
 last actually seized, 382, 459. 
 
 what is actual seizin, 383, 384, 459. 
 males preferred before females, 385. 
 rule of primogeniture, 217, 252, 387. 
 doctrine of representation, 389, 394. 
 collateral heirs, 390, 391. 
 to relatives of the half-blood, 37, 
 
 393-396. 
 male stock preferred before female 
 
 in collateral inheritances, 397. 
 when collateral descent takes place, 
 
 390 
 exclusion of half-blood, 37, 393, 
 classes of kindred, male stocks pre- 
 ferred, 397. 
 degrees of kindred, how reckoned, 
 
 377-382- 
 
 of uses, 472. 
 
 of feuds, 251. 
 
 of gavelkind estates, 275. 
 
 cast, 372. 
 
 aliens cannot take by descent, 119, 
 II., 405-408. 
 Desertion, as ground for divorce, 1 5 1, n. 
 Detainer, forcible, 721, 914. 
 Detinet, action of debt in, 708. 
 Determinable fee, 294. 
 Detinue, action of, 637, 704. 
 
 arrest in, 761. 
 Devastavit by executor, 606, 768. 
 De ventre inspiciendo, writ, 171, 793. 
 Devise, title by, in general, 497-503. 
 (See Will.) 
 
 origin of devises, 436, 497, 498. 
 
 what devisable, 498. 
 
 of uses, 471. 472, 475, 498. 
 
 requisites of valid devise, 500, 501, 
 
 503- 
 power of corporation to take by, 198, 
 
 199, n., 499. 
 who may devise lands, 499. 
 revocation of, 500. 
 must be in writing, 500. 
 attestation of, 501. 
 
 by legatees or creditors, 502. 
 
 by executor, 502, n. 
 construction of, 504. 
 conveyance of fee simple by, 292. 
 effect upon after-acquired land, 503. 
 effect of devise to heir, 400. 
 executory devises, 336, 352, 475. 
 
iii8 
 
 INDEX. 
 
 \The numbers refer to the top paging^ 
 
 Devise, by married women, 158. 
 
 in lieu of dower, 322, n. 
 Dicta, 36, n. 
 
 Digest of Justinian, 46, 47. 
 Digests, 47. 
 Dignities, 228, 459. 
 
 may be entailed, 297. 
 Dilatory pleas, 773. 
 Diminution of record, 1039. 
 Directory part of a law, 21, 
 Disability, plea to, 773. 
 Disabilities preventing marriage, 142- 
 
 150, 151- 
 Disabling statute, 52, n. 
 Discharge in bankruptcy, 584, n., 588. 
 Disclaimer of tenure, 429. 
 Discontinuance of action, 771. 
 
 of estate tail, 429. 
 Discontinuous easement, 232, u. 
 Discovery in equity, 828, 829. 
 Disfranchisement in corporations, 194, 
 
 n. 203. 
 Disinheriting children, l5i, 164, 217. 
 Dismissal of bill in equity, 839. 
 Dispossession, 717, 728. 
 Disseizin, 371-374, 718. 
 
 remedies for, 723, 724. 
 
 State cannot be disseized, 749. 
 Disseizin, novel. (See Novel Disseizin.) 
 Dissolution of marriage, 132, n. 
 
 of corporation, 203, 204. 
 Distress, law relative to, 5&1, 621. 
 
 replevin for, 700, 701. 
 
 for rent, 239, 240. 
 
 of cattle damage feasant, 621, 736. 
 
 infinite, process of, 760, 1012. 
 Distribution of intestate's effects, 613. 
 Distribution, statute of. 613. 
 District courts of the U. S., 653, n. 
 Distringas, 760, 789, 79I, 814, 834. 
 
 return of, 791. 
 Divine law, 7. 
 Divorce, 151, 663. 
 
 a vinculo, 151, 664. 
 
 defenses in suit for, 151, n. 
 
 a mensa et ihoro, 152, 663, 
 defenses in suit for, 151, n. 
 
 court of, 142, 11., 651, n., 655, n. 
 
 jurisdiction over, 142, 663, 665, n. 
 
 effect upon rights of curtesy and 
 dower, 312, n. 
 
 effect upon legitimacy of children, 
 151, 172- 
 Docket of judgment, 607, 809. 
 Doctors' commons, 657. 
 Dogs, stealing them, 515, 970. 
 
 injuries by, 706. 
 Domain, eminent, 79, n. ,235, n., 287, n. 
 Dome-book of Alfred, 31. 
 
 Domesday book, 246, 284, 923. 
 Domestic servants, 129. 
 Domicile, of infant, 178, n. 
 Dominant tenement, 231, n. 
 Domitce natures, animals, 512, 
 
 larceny of, 512, 970. 
 Donatio mortis causa, 548, n. . 598, 612. 
 Donis, statute de, 296, 300, 450, 495. 
 Donor and donee of estates tail, 297- 
 
 302, 323, n. 
 Doors, right of officer to break, 813, 
 
 817. 913. 958. 
 Dower, title by, in general, 311-321. 
 
 origin of, 311. 
 
 who may be endowed, 312. 
 
 in what estates, 314. 
 
 in equitable estates, 315 and n. , 473, 
 478. 
 
 in estates tail, 299. 
 
 by common law, 316. 
 
 ad ostium ecclesice, 316, 317. 319, 
 321. 
 
 de la plus belle, 316. 
 
 ex assensu fatris, 316. 
 
 by custom. 274. 316. 
 
 alien's right to, 313. 
 
 assignment of, 317. 
 
 widow's quarantine, 318. 
 
 bar of, 319. 409. 
 
 barred by jointure, 320, 321. 
 
 effect of divorce upon, 312, n. 
 
 effect of statute of uses upon, 475. 
 
 waste by tenant, 431. 
 Draft, 575. 
 Drawer and drawee of bill of exchange, 
 
 577- 
 Dred Scott case, 124, n. 
 Droit d* Aubaine , 120. 
 Druids, 30. 
 
 Drunkenness, how far it excuses crime, 
 866, 867. 
 
 jurisdiction of justices over, 103, u. 
 
 conviction for, 992. 
 
 as affecting power to make a will, 
 
 596. 597, n. 
 Duel, 913, 935, 945. 
 "Due process of law," defined, 74, 
 
 u., 103, n. 
 Duplicity in pleading, 778, 780. 
 Durante absentia, administration, 602, 
 606. 
 minore state, administration, 602, 
 606. 
 Duress, 70, 439. 
 
 of imprisonment, 70, n., 76. 
 per minas, 70, n. 
 of goods. 70, n. 
 
 as affecting contract of marriage, 
 142, n. 
 
INDEX. 
 
 {The numbers refer to the top paging\ 
 
 11 19' 
 
 Duress, as affecting responsibility for 
 crime, 870, 892. 
 
 avoids gift, 547, 548, n. 
 Duties as related to rights, 62, 63. 
 Dwelling-house. 959. 
 
 nuisance to, 739. 
 
 burglary in, 958. 
 
 arson of, 957. 
 
 larceny from, 973. 
 
 breaking, to make arrest, 766. 
 Dying declarations, 1029. 
 
 Earl, ancient functions of as shire of- 
 ficer, 86. 
 Earnest, 555. 
 Easements, 230, n. 
 
 nature of, 231, n. 
 
 distinguished from profit a prendre, 
 228, n. 
 
 how created, 231, n. 
 
 apparent, continuous, and discon- 
 tinuous, 232, n. 
 
 right to water, 232, n. 
 
 right of way, 230, 234. 
 
 right to support of land, 233, n. 
 
 party walls, 233, n. 
 
 how destroyed, 234, n. 
 
 nuisance to, 740. 
 Ecclesiastical corporations, 18S, 200. 
 
 visitation of, 200, 203, n. 
 
 tenure of frankalmoign lands, 285. 
 Ecclesiastical courts, 49, 142, 144, 595, 
 n., 654-659. 
 
 jurisdiction of, 662. 
 
 power to annul or dissolve a mar- 
 riage, 142, 144, 153, 663. 
 
 jurisdiction over wills, 595, 611, 613. 
 
 method of proceeding in, 665. 
 
 mode of enforcing decrees, 666. 
 Ecclesiastical persons, leases by, 465. 
 
 civil death of, 71. 
 Economy, public offences against, 924. 
 Edict of Roman praetor, 47. 
 Education of children, 165, 178, n. 
 Edgar, king, his laws, 32. 
 Edward the Confessor, his laws, 32. 
 Ejectione firma, writ of, 728, 729. 
 Ejectment, action of. 727, n., 729-733. 
 
 when mortgagee may bring, 341. 
 
 damages in, 732. 
 Electors privileged from arrest, 766, n. 
 Eleemosynary corporations, 188, 286. 
 
 visitation of, 200, 201. 
 Elegit, estate by, 342, 510, 728. 
 
 writ of, 817. 
 
 not applicable to uses, 473. 
 Elisors, 790. 
 
 Elopement, as affecting right to ali- 
 mony, 153. 
 
 Elopement, as affecting wife's right of 
 support, 156. 
 or her right of dower, 313, 319. 
 Emancipation of infant, 167, n. 
 Embassadors. (See Ambassadors.) 
 Embezzlement, 965, n., 971, n. 
 distinguished from larceny, 971, ii. 
 who may commit, 972, n. 
 elements of the offence, 972, n. 
 Emblements, 305, 326, 525. 
 
 what, and who shall have them, 305, 
 
 326, 525. 
 of tenant for life, 305, 306. 
 of tenant for years, 326. 
 of tenant at will, 330. 
 not the subject of larceny, 526. 
 Embracery, 912. 
 Eminent domain, 79, n., 235, n., 287, 
 
 note. 
 Enabling statute, 52, n., 465. 
 Enemy, in law of treason, 892. 
 Enlarging statute, 52, n. 
 Entails, 297-302. (See Tail.) 
 
 how barred, 300-302, 491. 
 Enticement of wife, action for, 695, n. 
 of child, 167, n. , 697, n, 
 of servant, 135. 
 Entirety, estate by, 361. 
 Entry, redress by, 620, 720. 
 for breach of condition, 336. 
 release by, 467. 
 necessity of, by heir, 459. 
 by tenant for years, 461. 
 by grantee under exchange, 466. 
 forcible, 721, 914. 
 writ of, 722. 
 in burglary, 962. 
 Equity, courts of, 28, n., 635, 640. 
 jurisdiction, 642, 643, 820-830. 
 charge' of infants, 163, n., 179, 
 
 641. ~ 
 may appoint guardian, 177, n., 
 
 278. 820. 
 of idiots and lunatics, 180, 641, 
 
 821. 
 of charities, 641, 821. 
 of bankrupts, 821. 
 of fraud and accident, 457, 824, 
 
 828, 830. 
 of accounts, 180, 828. 
 of uses and trusts 471, 644, 824, 
 
 830. 
 of divorce, 142, n. 
 of bonds and mortgages, 826, 827, 
 
 830. 
 over wills, 824, 827. 
 of legacies, 611, 665, 828. 
 of assignments, 549. 
 of duress, 70, n. 
 
II20 
 
 INDEX. 
 
 \Tke numbers refer to the top paging^ 
 
 Equity, courts of governed by prece- 
 dent, 824. 
 
 relief in forfeitures, 481. 
 
 mode of proof in equity, 828. 
 
 mode of trial, 829, 840. 
 
 mode of relief, 829. 
 
 discovery, 828, 829. 
 
 specific performance of contract, 829. 
 
 injunction, 742, n., 745, 828, 832. , 
 
 cancellation of instruments, &c. , 830. 
 
 sequestration, 834, 995. 
 
 practice in courts of equity, 832-843. 
 
 subpoena, 831, 832, 833. 
 
 bill, 832. - 
 
 plea, 835. 
 
 demurrer, 835. 
 
 answer, 836. 
 
 cross bill, 837, 839. 
 
 supplemental bill, 837. 
 
 bill of revivor, 837. 
 
 bill of interpleader, 837. 
 
 dismissal of bill, 839. 
 
 amendment, 837. 
 
 depositions, 837, 838. 
 
 decree interlocutory or final, 840. 
 
 costs, 840. 
 
 enforcement of decree, 841, 995. 
 
 bill of review, 842. 
 
 appeal, 647, 842. 
 
 equitable maxims, 822, 823. 
 
 courts of, in general, 640-644, 647, n. 
 
 history of, 640. 
 
 their ancient dispute with the law 
 courts, 645. 
 
 courts of, distinguished from law, 
 28, n., 823-828. 
 Equity in interpreting laws, 28. 
 Equity of redemption, 340, 830. 
 Equitable jointure, 321, n. 
 Equitable jurisdiction of the court of 
 exchequer, 638, 640, 820, 822. 
 
 of the Roman law courts, 651, 11. 
 Equitable mortgages, 339. 
 Error, writ of, 800, 81 1, 993, 1039. 
 
 differs how from appeal in equity, 647. 
 Escape, 767, 815. 
 
 action for, 714, 767, 815. 
 
 offence of, go2. 
 
 voluntary, 816, 902. 
 
 negligent, 767, 816, 902. 
 
 sheriff's liability for, 93, 714, 767, 815. 
 Escheat, 215, 265, 278, 287, n., 399, 
 402-413. 
 
 for want of heirs, 404. 
 
 because child is a monster, 404, 
 
 for illegitimacy of heirs, 405. 
 
 for alienage of heirs, 405-408. 
 
 for attainder, 408. 
 
 how different from forfeiture, 408. 
 
 Escheat, how far applicable to uses and 
 trusts, 472, 475, 478. 
 
 how far applicable to gavelkind es- 
 tates, 275, 279. 
 
 duty of sheriff in case of, 91. 
 
 writ of, 403. 
 Escrow, 454. 
 Escuage, 266, 267, 269. 
 Essoign, 758. 
 
 day of the term, 758. 
 Estate, in lands. 
 
 term defined, 287. 
 
 freehold, what, 288. 
 of inheritance, 288. 
 not of inheritance, 288. 
 
 in fee simple, 289-293. 
 
 base fees, 294, 335. 
 
 in fee tail, 293. 297-303. 
 
 for life, 303-322. 
 curtesy, 309-311. 
 dower, 311-321. 
 jointure, 320. 
 
 for years, 322-327. (See Landlord 
 and Tenant.) 
 
 at will, 328. 
 
 from year to year, 331. 
 
 at sufferance, 331. 
 
 upon condition, 294, n., 332-344. 
 
 in severalty, 358. 
 
 in joint tenancy, 358. 
 
 in common, 368. 
 
 in coparcenary, 365. 
 
 by entirety, 361. 
 
 in possession, 344. 
 
 in expectancy. 325, 344. 
 
 in remainder, 345. 
 
 in reversion, 355. 
 Estoppel, 778. 
 
 of tenant to deny landlord's title, 
 327, n. 
 
 by deed, 442, 443, n. 
 
 guardian by, 176, n. 
 Estovers, 304, 326, 430. 
 
 common of, 228, 230, 744. 
 
 may be entailed, 297. 
 
 of wife upon divorce, 153. 
 Estrays, 91, 218, 235, 420, 524, 532, 
 
 542, 752. 
 Estreat, defined, 981. 
 Estrepement, writ of, 745. 
 Evidence, in general, 796. 
 
 must be relevant, 796. 
 
 'vritten or parol, 796. 
 
 hearsay, 796, 1029, n, 
 
 res gestcB, 797, n. 
 
 of old deeds and wills, 796. 
 
 of records, 796. 
 
 best evidence must be given, 796^ 
 
 secondary, 799. 
 
INDEX. 
 
 \The numbers refer to the top faging^ 
 
 Evidence, book entries, when admitted, 
 797- 
 
 circumstantial, 798, 1028, n, 
 
 presumptive, 799, 1027, 1028. 
 
 under general issue, 777. 
 
 demurrer to, 800. 
 
 in criminal cases, 1026-1030. 
 Eviction from leased premises, 328, n. 
 Ex post facto \a.-ws, 11. 
 Examination of prisoners, 1000. 
 
 of witnesses, 799. 
 Exception in deed distinguished from 
 
 reservation, 239. 
 Exceptions, bill of, 800. 
 Exchange, bill of, 3^4. (See Bills of 
 Exchange.) 
 
 deed of, 466. 
 
 of lands, 308, 466. 
 
 of chattels, 553. 
 Exchequer, court of, 635, 638. 
 
 jurisdiction of, 638, 639. 
 
 equitable jurisdiction of, 638, 640, 
 820, 822. 
 Exchequer chamber, court of, 635, n., 
 
 638, n., 647, 812. 
 Excise, offences against, 991. 
 Excommunication, 666. 
 
 of corporation, 197. 
 
 disabilities attending, 666. 
 Excusable homicide, 534, 932. 
 Executed contract, 550. 
 
 estate, 344. 
 
 remainder, 349. 
 Execution in civil actions, 813. 
 
 in real or mixed actions, 813. 
 
 in replevin, 814. 
 
 in detinue, 814. 
 
 in other personal actions, 814. 
 
 by writ of capias ad satisfaciendum 
 (ca. sa.'', 814. 
 
 by writ of fieri facias (fi. fa.), 816. 
 (See Fieri facias.) 
 
 by writ of levari facias, 817. 
 
 by writ of elegit, 817. 
 
 by extent, 819. 
 
 criminal, 1044. 
 
 of uses, 474. 
 Executors and administrators, 602. 
 
 appointment of, 602, 603. 
 
 at what age person may be, 180, 602. 
 
 executor de son tort, 605, 608. 
 
 duties and powers of, 605. 
 
 to bury deceased, 606, 
 
 to prove the will, 606. 
 
 to make an inventory of goods, 606. 
 
 to collect the assets, 607. 
 
 to pay the debts, 607. 
 
 to pay legacies, 609. 
 
 to distribute residue, 613. 
 72 
 
 Executors, right of executor to pay his 
 own debt from assets, 608. 
 
 effect of appointing debtor as execu- 
 tor, 608. 
 
 right to fixtures as against heir, 23S> 
 note. 
 
 as witnesses to will. 502, n. 
 
 when subject to arrest in civil actions, 
 768. 
 
 of persons civilly dead, 71. 
 Executory contract, 550. 
 
 devise, 336, 352, 475. 
 
 estate, 345. 
 
 remainder, 349. 
 Exigent, writ of, 763, 1012. 
 Exigi facias, writ of. (See Exigent.) 
 Exile, punishment by, 77. 
 Expatriation, 125, n. 
 Expectancy, estates in, 325, 344. 
 Ex post facto laws, II, n. 
 Express condition, 334. 
 
 assumpsit, 707, 709. 
 
 authority of agent, 137, n. 
 
 contract, 539, 706-710. 
 
 malice, 945. 
 
 warranty, 448, 559. 
 Extent, writ of, 819. 
 Exterritoriality, doctrine of, 882, n. 
 Extinguishment, release by, 467. 
 Extortion, 76, 912. 
 Extravagants, of the canon law, 48. 
 Eyre, justices in, 261, 649, 723, 788. 
 
 Factors, 132. 
 
 Fair, nuisance to, 740. 
 
 False claim, 771, 801. 
 
 False imprisonment, 74. 76, 77, 686,955. 
 
 False judgment, writ of, 811. 
 
 False personation, 921, n., 922. 
 
 False pretences, crime of, 921, n. 
 
 distinguished from larceny, 966, n. 
 False return, action for, 670, 714, 8oa 
 False weights and measures, 923. 
 Farm, defined, 464. 
 Farmer, 464, 639. 
 Father. (See Parent and Child,Guardian 
 
 and Ward.) 
 Favor, challenge to, 793. 
 Fealty, 114, 239, 242, 249, 256, 27C^ 
 
 276, 355- 
 Fee-feud, 242, 289. 
 
 knight's, 256. 
 
 liege, 115- 
 Fee-farm rent, 240. 
 Fee-simple, estate in, 289-293. 
 
 base or qualified fees, 294, 335. 
 
 conditional fee, 295. 
 
 fee upon condition, 294, n. 
 
 fee upon limitation, 294, n. 
 
INDEX. 
 
 \Tke numbers n/er to the top paging^ 
 
 Fee-simple, fee upon conditional limita- 
 tion, 294, n., 475. 
 
 fee limited after fee, 475. 
 Fee-tail, estate in, 293, 297. 
 
 general, 297. 
 
 special, 298. 
 
 male, 298. ^ 
 
 female, 298. 
 
 how limited, 298. 
 
 discontinuance of, 429. 
 
 effect of tenant's conveying in fee, 
 429. 
 Feigned issue, 840. 
 Fellow-servants, 134. 
 Felo de se, 598, 937, 938. 
 Felonious homicide, 937. (See Murder, 
 
 Manslaughter.) 
 Felony, definition of, 106, n., 849, n., 
 893. 
 
 compounding of, 904. 
 
 misprision of, 898. 
 
 accessories in, 874. 
 
 attainder for, 1036. 
 
 arrest for, 998, 999. (See Arrest.) 
 
 what are bailable, 1002. 
 
 forfeiture for, 534, 598, 1037. 
 
 felon's power to make a will, 598. 
 Feme cove?-!. (See Husband and Wife.) 
 Feoda, 242, 289. 
 Feoffment, 457. 
 
 forfeiture by, 429. 
 Feoffor and feoffee, 323, n., 457. 
 FercE natiira, animals, 218, 237, 513, 
 
 524, 533- 
 ' larceny of, 515, 970. 
 Ferry, 235, n., 740. 
 Feuds, 241, 242. 
 
 honorary, 252. 
 
 military, 252. 
 
 proper and improper, 253. 
 Feudal system, 241-^253. 
 
 origin of feuds, 241-246. 
 
 land held of the lord by fealty, hom- 
 age, and service, 115, 242, 246, 
 249, 250. 
 
 feuds not at first hereditary, but af 
 terwards became so, 250, 251. 
 
 qualities of feud.s, 252. 
 
 feuds proper and improper. 253. 
 
 power of feudatory to convey feud 
 or subject it to debts, 434. 
 Feudal tenures, 244, 254-285. 
 Feudatory, 242, 248, 249, 252. 
 
 power to convey feud, 434. 
 Feudum antiquum, 391. 
 
 novum, 391. 
 Fidei commissum, 470, 471. 
 Fief, 242, 289. (See Feuds. 
 Fief d'haubert, 256. 
 
 Fieri facias, writ of, 816. 
 
 binds goods when issued, 554. 
 
 effect of sale of goods after writ is- 
 sued, 554. 
 Fi. fa., S16. 
 Filius nuUius, 173. 
 Filius populi, 174. 
 Filum ajuce, 221, n., 416, n. 
 Filum mce, 221, n. 
 Final judgment, 810. 
 
 decree, 840.' 
 
 process, 759. 
 Finch, Sir Heneage, 646. 
 Finders, larceny by, 965, n. 
 Finding of things personal, 213, 705. 
 Finding of indictment, 1006. 
 Fine to feudal lord for alienation, 264, 
 268, 269, 278. 
 
 of lands, 488-493. 
 
 the nature of a fine, 488. 
 
 note of, 490. 
 
 foot of, 490. 
 
 its force and effect, 292, 490. 
 
 how it affects parties, privies, and 
 strangers, 492. 
 
 used to bar entails, 301, 491. 
 
 conveyance of wife's land by, 158. 
 Fines, excessive, forbidden, 68, n. 
 Fire, injuries by, 138-140, 430. 
 
 destruction of property to prevent 
 spreading of, 80, n. 
 Fire-bote, 230, 326. 
 Fire insurance, 569, n. 
 Fire ordeal, 1022. 
 First fruits, 260. 
 
 Fiscal lands in feudal times, 243, n. 
 Fishery, right of, 221, n., 222. 
 
 common of, 230. 
 
 free, 237. 
 
 several, 237. 
 Fitzherbert, 39. 
 Fixtures 223, n. 
 
 actual and constructive, 223, n, 
 
 nature of the annexation to the prem- 
 ises, 224. n. 
 
 intent of the parties, 224, n. 
 
 as between heir and executor, 225, n. 
 
 as between mortgagor and mort- 
 gagee, 225, ,.. 
 
 as between vendor and vendee, 226, 
 note. 
 
 as between landlord and tenant foi 
 years, 227, n. 
 Fleta, 39, 270. 
 Flight, 534. 
 Fcenus nauticum, 567. 
 Folcright, 32. 
 Folk-land, 279, 281. 
 Foot of fine, 490. 
 
INDEX. 
 
 \The numbers refer to the top paging!\ 
 
 II23 
 
 Force, as affecting contract of marriage, 
 
 142, n. 
 Forcible abduction and marriage, 951. 
 Forcible entry and detainer, 721, 914. 
 Foreclosure of mortgage, 340. 
 Foreign bill of exchange, 575. 
 Forest, defined, 236. 
 
 title in, 218. 
 Forest-laws, 237, 515. 
 
 verderor's power concerning, 94. 
 Forfeiture, title by, 333, 422, 533, 711. 
 how differs from escheat, 408. 
 for crimes, 422, 1037, 1038. 
 of a bond, 481. 
 of offices and francMses, 333. 
 of goods and chattels, 533, 876, 
 
 1012, 1038. 
 of estates tail, 301. 
 of lands, 334, 408, 422, 1037. 
 by alienation , 423. 
 in mortmain, 423-427. 
 to alien, 428. 
 
 by particular tenants, 334, 428. 
 for breach of condition, 336, 348, 
 
 430. 
 for disclaimer, 429. 
 for waste, 430. (See Waste.) 
 for bankruptcy, 432. 
 Forgery, 977. 
 
 what act constitutes, 978, n. 
 
 what instruments may be forged, 977, 
 
 note, 
 wrongful intent in, 978, n. 
 uttering forged instruments, 978, n. 
 Fortescue, 30, 87, 88. 
 Founder of a corporation, 200. 
 right of visitation, 199-203. 
 Franchise, 234. 
 different kinds of, 235, 238. 
 no rent in, 239. 
 how forfeited, 333. 
 quo -warranto to forfeit, 752. 
 Frankalmoign, 269, 285, 293. 
 Frank-marriage, 299, 367. 
 Frank-tenement, 219, 256, 288. 
 Fraud, 716, 824. 
 marriage voidable for, 142, n., 145, 
 
 note, 
 deeds avoided for, 457. 
 effect of selling goods obtained by, 
 
 557. n. 
 cognizable in equity, 824. 
 Frauds, statute of, 325, n., 445, 467, 
 
 477, 500, 555> 574. 599. 7io. 
 Fraudulent conveyances, 55, 444. °> 
 
 535. 547, 906- 
 bankruptcy, 919. 
 Fraunke ferine, 111, 272. 
 Free and common socage, 270, 27 L 
 
 Free bench, 312, 315. 
 
 Free fishery, 237. 
 
 Freehold, estate of, 219, 288. 
 
 cannot be created in future, 325, 
 346, 461. 
 
 necessary to support contingent re- 
 mainder, 351. 
 
 conveyance of, 460. 
 
 abatement of, 718. 
 Free services, 255. 
 Free warren, 236. 
 Fresh pursuit, 376. 
 
 Gage, 759. 
 
 Game, property in, 218, 516, 525, 533 
 
 laws respecting the taking of, 533. 
 Gaming-houses, 927. 
 Gaol delivery, 650, 988, 989. 
 Gaoler, duty of detaining prisoner, 76. 
 
 his general duties, 93. 
 
 liability for escape, 714 
 
 liability for contempt, 993. 
 
 homicide by, 237, 930. 
 Gavelkind, 40, 45, 272, 274, 310, 388. 
 
 curtesy in, 310. 
 
 dower in, 311, 316. 
 
 forfeiture and escheat of, 275, 279, 
 409. 
 General demurrer, 782. 
 
 agent, 137, n. 
 
 customs, 29, 33. 
 
 issue, 724, 776, 1021. 
 
 legacy, 609, 610, 11. 
 
 occupancy, 414. 
 
 warrants, 998. 
 Gift of chattels, 546. 
 
 inter vivos, 547, n. 
 
 causa mortis, 548, n.. 598,612. 
 Gift of lands and tenements, 413. 
 Glanvil, 39, 271, 273, 723- 
 Good behavior, security for, 981, 983. 
 Good consideration, 444, 550. 
 Grace, days of, 577. 
 Government, origin and nature of, 13, 
 
 14- 
 
 different forms of : aristocracy, de- 
 mocracy, monarchy, 16, 17. 
 
 libel against, 916, n. 
 Grand cousiumier, 509. 
 Grand jury, 989, 1005. 
 Grand justiciary, 250, 633. 
 Grand larceny, 963. 
 Grand serjeanty, 266, 269. 
 Grant, title by, 214, 463. 
 
 of chattels, 546- 
 
 of lands and tenements, 463. 
 
 implied in prescription, 420. 
 
 by the king. 486. 
 
 title by public grant, 486, n. 
 
1 1 24 
 
 INDEX. 
 
 \Tke numbers refer to the top paging.^ 
 
 Grant, grivate and public, how con- 
 strued, 487. 
 Gretna Green marriages, 150, n. 
 Gross, common in, 229, 421. 
 
 villein in, 281. 
 Guaranty, contract of must be written, 
 
 710. 
 Guardian and ward, 127, 175-183. 
 different kinds of guardians, 176, 
 177- 
 guardian by nature, 175, 176, n. 
 guardian by nurture, 175, 176, n. 
 guardian in socage, 176, u., 277, 
 
 697. 
 guardian by estoppel, 176, n. 
 guardian in chancery, 177, n., 278, 
 
 820. 
 guardian ad litem, 177, n., 820. 
 probate guardian, 177, n. 
 testamentary guardian, 177, n., 
 278, 697. 
 in chivalry, 178, 260, 264, n., 269, 
 509, 697. 
 waste by, 431. 
 powers and duties of guardians, 178, 
 
 179- 
 
 accounting by, 179. 
 
 guardian's right of action for injuries 
 to ward, 697. 
 for seduction of ward, 698, n. 
 
 marriage of ward subject to guardi- 
 an's consent, 146. 
 
 Habeas corpora, writ of, 789, 7gr, 792. 
 Habeas corpus act, 67, 75, 77,691, looi. 
 Habeas corpus, writ of, 75, 76, 686-691, 
 994- 
 
 suspension of writ, 75, n. 
 Habendum of a deed, 446. 
 Half-blood, descent to relations of, 37, 
 393-396. 
 
 right of administration, 603. 
 Hamesecken, 958. 
 Handsale, 555. 
 Hanaper office, 642. 
 Hanging, punishment by, 1045. 
 Harboring of servant, 135. 
 
 of wife, 695, n. 
 Harboring of child, 697, n. 
 Ilay-bote, 230, 326. 
 Head-borough, 104. 
 Head-note of a report, 38, n. 
 Health, injuries to, 73, 677. 
 Hearsay evidence, 796, 1029, n. 
 Hedge-bote, 230. 
 Heirlooms, 220, n. , 536. 
 Heirs, who are, 376, 383, 384. 
 
 apparent, 176, n., 383. 
 
 presumptive, 171, 383, 
 
 Heirs, title by descent, 375-399. (See 
 Descent. ) 
 
 effect of devise to, 400. 
 
 right to fixtures as against executors, 
 225, n. 
 
 escheat for lack of. (See Escheat.) 
 " Heirs," when word necessary to 
 create a fee, 291, 292, 303. 
 
 whether word of- limitation or pur- 
 chase, 401. 
 "Heirs of the body," words used to 
 
 limit a fee-tail, 298. 
 Hengham, 39. 
 Hereditaments, defined, 219. 
 
 corporeal, 220. 
 
 incorporeal, 220, 223, 228. 
 
 seizin of, 290. 
 Heresy, 896. 
 
 Heriot, 259, 281, 535, 593. 
 High constable, 104. 
 High court of justice, 651, n. 
 High misdemeanors, 898. 
 High sheriff. (See Sheriff.) 
 High treason, 884-893. 
 Highways, surveyors of, 106. 
 
 duty of parishes to repair, 106. 
 
 bounding land by, 221, n. 
 
 nuisance in, 741, 926. 
 Hired servants, 129. 
 Hiring, 562, n., 563. 
 Homage, 249, 256, 269, 270. 
 
 liege, 115. 
 
 simple, 115. 
 
 aunceslrel, 448. 
 Homicide, 927-949. 
 
 justifiable, 929. 
 
 excusable, 534, 932. 
 
 felonious, 937. 
 
 self-murder, 937. 
 
 manslaughter, 939. 
 voluntary, 939. 
 involuntary, 940. 
 
 murder, 941. 
 
 infanticide, 69, 942, 944, n. 
 
 parricide, 948. 
 
 modem laws concerning homicide, 
 947, n. 
 
 (See Murder, Manslaughter.) 
 Honorary feuds, 252. 
 Horses, sale of, 559. 
 Hospitals, visitors of, 201. 
 
 established by Edward VI., 108. 
 Hotch-pot, 367, 614. 
 House-bote, 230, 326. 
 Hoveden, 32. 
 Hue and cry, 711, 1000. 
 Hundred, constable of, 104. 
 
 remedy against for robbery, 711. 
 Husband and wife, 126, 141-159. 
 
INDEX. 
 
 [The numbers refer to the top fagiHg^ 
 
 II25 
 
 Husband and wife, contract of mar- 
 riage, how made, 142-150. 
 
 requisites of marriage contract, 149, 
 150. 
 
 proof of marriage, 150, u. 
 
 Gretna Green marriages, 150, n. 
 
 disabilities preventing marriage, 142- 
 150. 
 
 consanguinity, 143, 
 affinity, 143. 
 
 corporeal disability, 143, 144, n. 
 precontract, 144. 
 bigamy, 145. 
 
 want of age, 145, n., 146, 180. 
 want of consent of parents, 146, 
 
 167. * 
 
 unsoundness of mind, 148. 
 
 nullity of marriage, 151, n. 
 
 distinction between void and void- 
 able marriages, 143, 145, n. 
 
 dissolution of marriage, 151. 
 
 divorce, 151-153. (See Divorce.) 
 
 alimony, 153. 
 
 legal consequences of marriage, 154- 
 
 159- 
 
 contracts between husband and wife 
 avoided by marriage, 154. 
 
 -contracts o£ married women, 155. 
 
 rights of husband over wife's prop- 
 erty, 154, n., 540, 541. 
 
 his power to lease her land, 464, 465. 
 
 joint estate of, 361, n. 
 
 wife's property rights in equity and 
 by modern statutes, 154, n. 
 
 right of wife to purchase and convey 
 land, 158, 439, 440, 492. 
 
 her acknowledgment of deed or fine, 
 153, 490, 492. 
 
 wife's paraphernalia, 543. 
 
 local settlement of wife. III. 
 
 naturalization of, 123, n. 
 
 wife may be husband's agent, 136, 
 
 155- 
 
 husband may give legacy to wife, 155. 
 
 right of marriage under feudal sys- 
 tem, 262, 268, 278. 
 
 husband's duty to maintain wife, 155. 
 
 liability of husband for wife's crimes, 
 158, 869. 
 
 liability for her debts contracted be- 
 fore marriage, 156. 
 
 her liability for crime, 870. 
 
 power of wife to make a will, 158, 
 
 499. 597, 598- 
 suits by and against wife, 156. 
 husband's right of action for entice- 
 ment and harboring of wife, 695. 
 for personal injury to wife, 695. 
 for criminal conversation, 695. 
 
 Husband and wife, right to be wit- 
 nesses in criminal cases, 157, 925, 
 1029, n. 
 in civil cases, 157. 
 husband's right to correct wife, 159. 
 to be her administrator, 542, 597, 
 
 603, 613. 
 to protect her from injury, 619,935. 
 wife may be executrix, 602. 
 wife privileged from arrest on mesne 
 process, 766, n. 
 
 but not on final process, 815. 
 wife's suit for restitution of conjugal 
 
 rights, 663. 
 each may require of the other secu- 
 rity to keep the peace, 981. 
 Hypotheca, 341. 
 
 Idiots, 821. 
 
 conveyances by, 437. 
 
 wills by, 499, 596. 
 
 jurisdiction of chancery over, 180, 
 641, 821. 
 
 responsibihty for crime, 864, 865. 
 
 marriage of, 145, n., 148. 
 
 right to appear by attorney, 628. 
 
 dower or curtesy in estates of, 310, 
 313- 
 Ignoramus, 1006. 
 
 Ignorance, when it excuses crime, 868. 
 Illegitimate children. (See Bastard.) 
 Imparlance, 494, 772. 
 
 general, 773. 
 
 special, 773. 
 Impeachment, 898, 984, 985. 
 Impeachment of waste, 305, n., 431. 
 Impertinent matter in pleading, 832. 
 Implied assumpsit, 710-717, 735, 77a 
 
 authority of agent, 137, n. 
 
 condition, 353. 
 
 contract, 549, 710-717. 
 
 malice, 946, 947. 
 
 warranty, 559. 
 Impossible conditions, 337. 
 
 in a bond, 481. 
 Impotency, annuls marriage, 143, 663. 
 Imprisonment, lawful, 76. 
 
 false, 74, 76, 77. 686, 955. 
 
 duress of, 70, 76. 
 
 by sheriff, 90, 91. 
 
 on mesne process, ^WJ. 
 
 execution by, 815. 
 Improper feud, 253. 
 In pari materia, statutes, 26, n. 
 Incest, 143, n., 144. 
 Incestuous marriages, 143. 
 
 adultery, 151, n. 
 Incorporeal hereditaments, 220, 223, 
 
 228. 
 
1 1 26 
 
 INDEX. 
 
 [The numbers refer to the io^ paging^ 
 
 Incorporeal hereditaments, seizin of, 
 290. 
 
 title by occupancy to, 415. 
 
 title by prescription, 419. 
 
 conveyance of, 463. 
 
 nuisance to, 740. 
 
 may be entailed, 297. 
 Incumbrances, covenant against, 451, 
 
 note. 
 Indebitatus assumpsit, 707. 
 Indentures, 442. 
 
 of apprenticeship, 130. 
 
 construction of, 505. 
 Indians, citizenship of, 125, n. 
 Indictment, 1005. 
 
 finding of, 1006. 
 
 contents of, 1007, 1008. 
 
 abatement of, 1018. 
 
 process upon, loii. 
 
 demurrer to, 1018. 
 
 confession of, 1017. 
 
 reading of to prisoner, 1015. 
 
 trial of, 1022. 
 Indorsement of bills and notes, 576- 
 
 578. 
 Induction into rectories, &c., 459. 
 Infamous persons as witnesses, 798. 
 Infants, 181. 
 
 naturalization of, 123, n. 
 
 marriages of, 146. 
 
 rights, &c. of parent and child in 
 general, 160-174. (See Parent 
 and Child.) 
 
 rights, &c. of gruardian and ward 
 175-18.3. (See Guardian and 
 Ward.) 
 
 jurisdiction of chancery over, 163, n. , 
 179, 641, 820. 
 
 conveyajices by and to, 182, 437, 439. 
 
 domicil of, 178, u. 
 
 may sue and be sued, how, 181. 
 
 contracts by, 182, 183, 11. 
 
 gifts of, 547, 548. 
 
 torts of, 185, n. 
 
 crimes of, 181, 185, n., 862. 
 
 wills by, 180, 499, 596, 599. 
 
 rights and duties of, 181-183. 
 
 may be executors, 180, 602 
 
 right to be witnesses, 953. 
 
 posthumous children, 69, 350, 383. 
 
 in ventre sa mere may receive legacy, 
 &c., 69. 
 Infanticide, 69, 942, 944, h. 
 Infeudation, 249. 
 Information, criminal, 1008. 
 
 civil, 751. 
 
 for intrusion, 751. 
 
 for debt, 751. 
 
 for charities, 821, 82a. 
 
 Information, in nature of quo warranto^ 
 752, 753. ".,1010. 
 
 to dissolve corporation, 205. 
 Informer, common, 544, 712, 1009. 
 Inheritance, 215, 216, 376. 
 
 canons of, 382-399. (See Descent.) 
 
 estates of, 287, 288. 
 Injunction in equity, 742, n., 745, 832, 
 
 833- 
 
 to prevent waste, 305, n. 
 Injuria, 618. 
 Injuries, civil, 62, 618. (See Tort.) 
 
 to person, 674—699. 
 
 to personal property, 699-717. 
 
 to real property, 717-746. 
 
 causing death, 674, n. 
 
 with and without force, 674. 
 
 by fire, 138-140. 
 
 by or to the crown, 747-754- 
 
 distinguished from crimes, 849. 
 Inland bill of exchange, 575. 
 In loco parentis, 168, n. 
 Innkeepers, 561, 562, n., 715. 
 
 liability for servant, 136, 139, n. 
 Innuendo, 684. 
 
 Inofficious testament, 161, 602. 
 Inns of court, 634. 
 In pais, 440. 
 Inquest by coroner, 96. 
 
 of office, 119, u., 413, n., 440, 749, 
 1004. 
 Inquiry, writ of, 90, u., 810. 
 Inquisitio post mortem, 261, 749. 
 Inquisition, 1004. 
 
 of coroner, 96, 1004. 
 Insanity, as affecting power to marry, 
 145, n., 148. 
 
 as affecting power to convey land, 437. 
 
 as affecting power to make a will, 
 
 499, 596- 
 
 avoids gifts, 547, 548, n. 
 
 as affecting responsibility for crime, 
 864. 
 
 reprieve for, 1042. 
 
 suicide no evidence of, 938. 
 
 committee of insane persons, 439, n. 
 Insimul eomputassent, 713. 
 Insolvency, 580, n. 
 Institutes of Justinian, 47. 
 Insurance, 567-570, 
 Interesse termini, 326, 461. 
 Interest of money, in general, 564, 571, 
 572, n. 
 
 distinguished from usury, 564, 565. 
 
 upon legacies, 611. 
 Interested witnesses, 798. 
 Interlineation in a deed, 456. 
 Interlocutory decree, 666. 840. 
 Interlocutory judgment, 808. 
 
INDEX. 
 
 1127 
 
 [ The numbers refer to ike toJ> paging.'] 
 
 Interpleader, bill of, 837. 
 Interpretation of laws, 25-29, 52-58, 
 504, 823. 
 
 distinguished from construction, 52, 
 note. 
 Interrogatories, examination on, 838, 
 
 995- 
 Intestacy, 593, 603. 
 Intestates, their debts and effects, 593, 
 
 603, 613. 
 Intoxication, how far it excuses crime, 
 
 866. (See Drunltenness.) 
 Intrusion, 718. 
 
 information of, 751. 
 Inventory of executor, 606. 
 Investiture, 249, 257* 384, 458. 
 Involuntary manslaughter, 940. 
 Islands, title to, 416, 417. 
 Issue, in pleading, 781, 782, 783, 1017. 
 
 of law, 782. 
 
 of fact, 783. 
 
 general, 724, 776. 
 
 feigned, 840. 
 
 in equity, 83S. 
 
 joinder oif, 783, 787. 
 
 trial of, 785-803. 
 
 tender of, 780, 781, 783. 
 Issues or profits of land, 760. 
 Itinerant courts, 649, 988. 
 
 justices, 261, 649, 988. 
 
 Jactitation of marriage, 663. 
 
 {ail delivery. (See Gaol delivery.) 
 eofails, 812, 1035. 
 Jews, naturalization of, 125. 
 
 marriage of, 149, n. 
 Joinder in demurrer, 782. 
 
 of issue, 783, 787. 
 Joint ownership of personal property, 
 521. 
 
 with the Icing, 531. 
 
 survivorship in, 521, n. 
 Joint-tenancy in lands, 358-364. 
 
 creation of, 359. 
 
 properties of, 359. 
 
 unities in, 360. 
 
 survivorship in, 361, 362, 364. 
 
 how destroyed, 363. 
 
 partition of, 363, 466. 
 Jointure, 320, 358, 473. 
 
 legal, 321, n. 
 
 equitable, 321, n. 
 Judges, 627, 635, 636, 638, 987, 988. 
 
 assaulting them, 900. 
 Judgment, title by, 543. 
 
 defined, 808. 
 
 action on, 710. 
 
 in civil cases, 803-811. 
 
 ol non pros, 771, 783. 
 
 Judgment, of nil dicit, 771, 809. 
 
 of respondeat ouster, 775, 809. 
 
 of nonsuit, 801, 808. 
 
 as in case of nonsuit, 790. 
 
 of non sum informatus, 809, 
 
 of confession, 808, 809. 
 
 of default, 808, 809. 
 
 of retraxit, 808. 
 
 in ejectment, 731, 732, 733. 
 
 arrest of, 804, 806, 1035. 
 
 suspension of, 804. 
 
 docketing of, 607, S09. 
 
 entry of, 808. 
 
 interlocutory or final, 808-811. 
 
 dormant, 819. 
 
 warrant of attorney to confess, 809. 
 
 avoided in equity for fraud, 829. 
 
 payment of by executor, 607. 
 
 costs upon, 811. 
 
 revival of, 819. 
 
 in criminal cases, 1034. 
 
 reversal of, 1039. 
 Judicial acts or duties defined, 102, n. 
 Judicial notice taken of public statutes, 
 
 51. 
 but not of private statutes, 51,485. 
 Judicial writs, 761. 
 Jurisdiction, plea to, 773, 774, 835, 
 
 1017. 
 of courts of equity, 642, 643, 820- 
 
 830. 
 of justices of the peace, 103, n. 
 Jury, trial by, 
 
 in civil cases, 786-803. 
 summoning of jury, 788, 789. 
 summoned from what locality, 792. 
 panel of jurors, 7S9. 
 qualifications of jurors, 793, 794. 
 triors of, 793. 
 special jury, 791. 
 sheriff's jury, 809, 810, 814. 
 coroner's jury, 96. 
 common jury, 791. 
 selection of jury, 792. 
 challenges of jurors, 792, 793. 
 
 to the array, 792. 
 
 to the polls, 793. 
 
 principal, 793. 
 
 to the favor, 793. 
 summoning tales, 794. 
 argument to jury, 795. 
 persons excused from jury duty, 794. 
 verdict of, 801. 
 in criminal cases, 1022-1030. 
 grand jury, 989, 1005. 
 petit jury, 1007, 1023. 
 jurymen, contempt of court by, 993, 
 Jus accrescendi, 362, 364, 366, 521. 
 Jus ad rem, 459. 
 
nag 
 
 INDEX. 
 
 [The Humbert refer to the top faginng.] 
 
 Jus in re, 459- 
 Jus albinatus, 120, I23, 
 Jus civile, 8. 
 Jus commune, 33- 
 Jus Jiduciarum, 470. 
 Jus legitimum, 470. 
 Jus precariuvi, 470. 
 Justice, offences against, g01-gi2. 
 Justices of assize and nisi prius, 650, 
 788, 790. 988. 
 
 of common pleas and king's bench, 
 635, 636. 
 
 in eyre, 261, 649, 723, 788. 
 Justices of the peace, 97-103. 
 
 appointment of, 98, 641. 
 
 qualifications of, 99, 100. 
 
 powers and duties of, loi, 102. 
 
 modes of terminating their office, 
 100, Id. 
 
 courts of, 103, n., 989. 
 
 judicial powers of, 102, n., 991. 
 
 ministerial powers of, 103, n., 998. 
 
 legal responsibilities of, 103, n. 
 
 of the quorum, 99, 989, ggo. 
 
 summary convictions by, 103, n. ,'991. 
 
 power to admit to bail, 1002. 
 
 power to issue warrants, 997. 
 
 may require security to keep the 
 peace, 981, 982, 983. 
 
 contempt of court by, 993. 
 
 duty to attend assizes, 988. 
 Justifiable homicide, 929. 
 Justification, plea of, 81, 777. 
 
 of libel or slander, 681, 683, 917. 
 
 in trespass, 737, 738. 
 Justifying bail, 768. 
 Justinian, 4, 8, 25. 
 
 civil law codified by, 46, 47. 
 
 doctrines as to slavery, 127. 
 
 Keeping the peace, security for, 98, 
 
 loi, 103, n., 981, 982. 
 Kidnapping, 955. 
 Kin, next of, 381, 595, 603, 613. 
 Kindred, defined, 377. 
 
 degrees of computed, 381, 382, 603. 
 
 right of to administration, 603, 604. 
 
 right to distribution of assets, 613. 
 King cannot be joint tenant, 531. 
 
 title by prerogative, 531-533. 
 
 title by forfeiture, 533-535- 
 
 not liable for crime, 872. 
 King's bench, court of, 635, 636, 812, 986. 
 
 process in, 764. 
 
 powers as visitor of corporations, 200, 
 
 _ 636. 
 
 jurisdiction of, 636, 637. 
 
 power to issue mandamus, 669, 
 
 appellate jurisdiction, 812. 
 
 King's counsel, 629, 
 King's grants, 486. 
 Knight's fee, 256. 
 Knighthood, 257, 262. 
 Knight-service, 256-269, 
 
 Laborers, 131. 
 loaches, 182, 784. 
 Land, what it is, 219-222. 
 nuisance on, 738-743. 
 trespass on, 734-738. 
 right of support, 731, n. 
 alienation of by deed, 434-483. 
 alienation of by record, 483-496. 
 aUenation of by devise, 497-507. 
 forfeiture of, 422, 1037. 
 title to, how gained. (See Title.) 
 may be taken for payment of 
 owner's debts, 293, n., 436. 
 Landlord and tenant, 322-332. 
 
 lease for years, how created, 325, 
 
 326. 
 entry by tenant, 461. 
 interesse termini, 326, 461. 
 rights and duties of tenant for years, 
 326, 327. 
 right to estovers and emblements, 
 
 326. 
 duty to pay rent, 327, n. 
 estoppel to deny landlord's title, 
 
 327, note, 
 duty to make repairs, 327, n. 
 must not commit waste, 327, n. 
 must fulfil conditions and cov- 
 enants in lease, 328, u., 469, 
 note, 
 assignment and sub-tenancy, 328. 
 eviction, 328. 
 ouster from term, 728. 
 tenant's right to fixtures, 226, n. 
 tenant forfeits term by conveying 
 
 larger estate, 334, 428. 
 landlord's right of entry to view 
 waste, 737, 738. 
 Lapse, 422. 
 Lapsed legacy, 610. 
 Larceny, 963-976. 
 grand, 963. 
 petit, 894, 963. 
 simple, 963-971. 
 th ; caption , 964-967. 
 the asportation, 967. 
 the felonious intent, 968. 
 only personal property the subject of 
 
 larceny, 969. 
 of animals, 512, 515, 525, 970. 
 of emblements, 526. 
 of dead body, 537, 971. 
 element of trespass involved, 964, n. 
 
INDEX. 
 
 \The numbers refer to the top paging^ 
 
 II29 
 
 tarceny, by servants, 963. 
 
 by bailees, 965. 
 
 by finders, 965, n. 
 
 does not divest owner's title, 557. 
 
 distinguished from false pretences, 
 966, n. 
 
 punishment of, 971. 
 
 compound, 972-976. 
 
 from the house, 973. 
 
 from the person by privately steal- 
 ing, 974- 
 
 by robbery, 974, 975. (See Rob- 
 bery.) 
 
 place of trial of, 1006. 
 Las partidas, code of, 52. 
 Latin language once used in pleading, 
 
 785. 
 Latitat, 764. 
 Law, the nature of in general, 1-29. 
 
 and equity, courts of, .distinguished, 
 28, 823-828. 
 
 <canon, 48, 49. 
 
 civil, 46, 47. (See Civil Law.) 
 
 common, 29, 33, igo. 
 
 divine or revealed, 7. 
 
 ecclesiastical, 50. 
 
 ex post facto, II, n, 
 
 how prescribed, 10-12. 
 
 interpretation and construction of, 
 25-29, 52-60, 504, 823. 
 
 maritime, 50. 
 
 merchant, 41, 880. 
 
 military, 50. 
 
 municipal, 8-24, 61, 617. 
 
 of nations, 8, 879. 
 
 offences against, 879-884. 
 
 retrospective, 12, n. 
 
 statute, 50-60. (See Statutes.) 
 
 unwritten, 29-50. 
 
 written, 50-60. (See Statutes.) 
 
 obligation of, 5, n., 24, n. 
 
 the declaratory part of a law, 20. 
 
 the directory part, 21. 
 
 the remedial part, 21. 
 
 the vindicatory part, 22. 
 
 Danish, 31. 
 
 Mercian, 31. 
 
 West Saxon, 31. 
 " Law of the land," defined, 74, n. 
 Law of place, as affecting marriage, 
 
 149, II. 
 Lawyers, 627-631. (See Attorney, 
 
 Counsellor. ) 
 Lay corporations, 188, 200. 
 
 visitation of, 200. 
 Leading questions, 838, 1029. 
 Lease, 322. (See Landlord and Ten- 
 ant.) 
 
 defined, 463. 
 
 Lease, conveyance by, 464, 465. 
 
 power of life tenant to make, 307, 
 n., 464. 
 
 may be created to begin in future, 
 347- 
 
 long leases, how introduced, 424. 
 
 husband's right to wife's lease, 541. 
 Lease and release, 479. 
 Legacies, 609-611. 
 
 general, 609, 610, 11. 
 
 specific, 609, 610, n. 
 
 demonstrative, 610. 
 
 abatement of. 609, 610, n. 
 
 ademption of, 610. 
 
 lapsed, 610. 
 
 vested, 611. 
 
 contingent, 611. 
 
 interest upon, 611. 
 
 jurisdiction over, 611, 665, 828. 
 
 in lieu of dower, 322, u. 
 
 husband may give legacy to wife, 
 155- 
 
 legatees as witnesses to a will, 502. 
 Legal jointure, 321, n. 
 Legal life estates, 303. 
 Legal memory. (See Memory.) 
 Legatine constitutions of canon law, 
 
 48. 
 Legislative power, 15, 58, 485,^. 
 Legislature, how far controllable, 15, 
 n., 58. 
 
 sole right to make and repeal laws, 
 18. 
 
 members of, privileged from arrest, 
 766, li. 
 Legitimacy, presumption of, 172. 
 Legitimate children, 160-169. (See 
 
 Parent and Child.) 
 Lending, 563. 
 
 Lessor and lessee, 323, n. (See Land- 
 lord and Tenant.) 
 Letter missive, 835. 
 Letters patent, 486, 630, 641. 
 
 corporations created by, 191. 
 Letters of administration, 603, 605, 
 606. 
 
 ad colligendum, 604. 
 Levy of execution, 817- 
 
 of a fine, 490-492. 
 Levari facias, writ of, 817. 
 Levying war against the king, 890. 
 Lex mercatoria. 41, 880. 
 Lex nan scripta, 29-50. 
 Lex scripta, 50-60. 
 Libel, when civil action lies for, 682. 
 .when indictable, 916, 917. 
 
 publication of, 682, n , 917. 
 
 privileged communications, 683, 
 note. 
 
1130 
 
 INDEX. 
 
 [Tke nufnbers re/er to the top paging^ 
 
 Libel, when the truth is a defence, 682, 
 n., 916, n., 917. 
 construction of, 916, n. 
 in ecclesiastical courts, 666. 
 Liber et Ifgalis homo, 793. 
 Liber judicialis, 31. 
 Liberty or franchise, 234. 
 Liberty, civil, 64. 
 natural, 64. 
 personal, 73. 
 personal injuries to, 685. 
 of the press, 917, 918. 
 remedies for violation of right of lib- 
 erty, 686, 694, 955. 
 crimes against, 955. 
 Liberum tenementum, 219, 288. 
 License to aliene land, 264, 268, 435. 
 to marry, 146, 149, n. 
 of mortmain, 192, 423-427. 
 to enter property, 737. 
 Licentia concordandi, 4S9. 
 Life, when it begins, 68. 
 right of, 68. 
 crimes against, 927. 
 estates for, 303-321. 
 conventional. 303, 306. 
 legal, 308-321. 
 curtesy, 308-311. 
 dower, 311-321. 
 jointure, 320. 
 life tenant's right to fixtures, 227, 
 
 note, 
 waste by tenant, 430. 
 tenant forfeits estate by conveying 
 fee, &c., 334, 428. 
 Life insurance, 568, 569, u. 
 Ligeance, 114, 118. 
 
 Light, easement of, 232, 516, 524, 739. 
 Limbs, right of security to, 69. 
 Limitation, statutes of, 151, n., 421, n., 
 725, 777, I007- 
 of criminal prosecutions, 1007. 
 Limitation, estates on, 294, n., 336. 
 curtesy in, 309, n. 
 dower in, 315, n. 
 
 distinguished from condition, 294, n., 
 335- 
 Lineal consanguinity, 377, 378. 
 descent, 382, 383. 
 relatives, 383. 
 warranty, 299, 449. 
 Litercf clausce, 486. 
 
 patenteSy 486, 
 Literary property, 527, 528. 
 Littleton, 39. 
 
 as to socage tenure, 270, 271, 273. 
 Livery of seizin, 257, 288, 303, 326, 
 458-463. 
 in deed, 461. 
 
 Livery of seizin, in law, 462. 
 
 estates in possession conveyed by, 
 460. 
 
 remainders conveyed by, 461. 
 
 made to tenant for benefit of remain- 
 der man, 347, 348. 
 Livery of ward in chivalry, 261, 269. 
 Loan, 562, n., 563. 
 Local actions, 769. 
 Local allegiance, 117. 
 Local customs, 40-42. 
 Locatio, 562. 
 London, customs of, 41. 
 Lord chancellor, 633, 640, 647, n. 
 Lord chief justice of King's Bench, 94, 
 
 636. 
 Lord, feudal, 249. 
 
 liege, 115. 
 
 mesne, 254. 
 
 paramount, 254, 280. 
 Lord keeper, 641. 
 Lords, House of, 648, 651, n. 
 
 appeal to, 640, 647, 812, 820, 842. 
 
 prolocutor of, 641. 
 
 power to tiy impeachments, 985. 
 
 peers, privileged from arrest, 768. 
 Lords Justices, 647, n. 
 Lunacy, commission of, 148. 
 Lunar month, 323. 
 
 Lunatics, jurisdiction of chancery over, 
 641, 821. 
 
 mariiage of, 145, n., 148. 
 
 wills by, 499, 596. 
 
 conveyance by, 437. 
 
 when liable for crimes, 864, 865. 
 
 committee of, 439, u., 821. 
 
 suicide of, ^8. 
 
 Magistrates, subordinate, 85-113. 
 
 sheriff, 86. 
 
 coroner, 94. 
 
 justices of the peace, 97. 
 
 constable, 103. 
 
 surveyors of highways, 106, 
 
 overseers of the poor, 108. 
 Magna charta, 50, 66, 82, 248. 
 
 forbids injuries to life, 73. 
 to liberty, 74. 
 
 forbids wrongful banishment, 77. 
 
 forbids unlawful taking of property, 
 78. 
 
 declares the right of legal redress, 81. 
 
 forbids wrongful outlawry, 82. 
 
 provisions as to forests and fishery, 
 
 237- 
 as to feudal aids, 258. 
 as to wardship in chivalry, 261. 
 as to feudal right of marriage, 263. 
 as to alienation of land, 264, 435. 
 
INDEX. 
 
 \Tlu numtm refer to the top paging.} 
 
 II31 
 
 Magna charta, prohibits scutage, 267. 
 
 as to petit serjeanty, 273. 
 
 as to subinfeudation, 280. 
 
 as to dower, 317, 318. 
 
 as to mortmain, 424. 
 
 as to wills of chattels, 592. 
 
 as to justices in eyre, 649. 
 
 as to court of common pleas, 633, 
 764. 
 
 as to trial by jury, 787. 
 Maintenance of bastards, 172. 
 
 of wife, 155. 
 
 of children, 160-164. 
 
 of parents, 168. 
 
 of suits, 135, 165, 169, 437, n., 729, 
 905 ■ 
 Mala in se, 20, 23, 534, 852. 
 Malaprohibita, 23, 534, 851. 
 Malice, express, 683. n., 945. 
 
 implied, 683, n., 946. 
 
 prepense, 945. 
 
 in libel and slander, 683, n. 
 
 in malicious prosecution, 685, n. 
 
 in murder, 945. 
 
 in arson, 958. 
 
 wanting in manslaughter, 939. 
 Malicious mischief, 976. 
 Malicious prosecution, 685. 
 Malpractice, injury by, 677. 
 Mandamus, writ of, 668, 753. 
 
 alternative, 669. 
 
 peremptory, 670, 754. 
 Mandatum, 562, n. 
 Manor, 279-281. 
 Mansion-house in burglary, ggg. 
 Manslaughter, 165, 934, 939. 
 
 voluntary, 939. 
 
 involuntary, 940. 
 
 accessories before the fact in, 874, 
 
 939- 
 
 forfeiture for, 534. 
 Manuscripts, author's property in, 528. 
 Manumission, 283. 
 Marine insurance, 569. 
 Maritime causes, 660, 667. 
 
 courts, 659. 
 
 jurisdiction of, 660, n., 667. 
 Market, 235. 
 
 nuisance to, 740. 
 Market Overt, 557. 
 Marriage. (See Husband and Wife.) 
 
 how proved, 696. 
 
 contract how enforced in ecclesiasti- 
 cal courts, 663. 
 
 agreement in consideration of must 
 be written, 710. 
 
 when it revokes will, 500, 598, 602. 
 
 breach of promise of, 142, n., 145, 
 n., 774, n. 
 
 Marriage, jactitation of, 663. 
 
 title by, 540. 
 
 of an heir without consent, 696. 
 Married women, rights and liabilities 
 of, 154-159. 540, 869. 
 
 (See Husband and Wife, Dower, 
 Jointure, &c.). 
 Marshal, under U. S. Laws, 88, n. 
 Master in chancery, 833, 841. 
 
 of the rolls, 647, n., 833, 839. 
 Master of the crown office, loog. 
 Master and servant, rights and liabili- 
 ties of, 126-140. 
 
 as to slaves, 127. 
 
 different sorts of servants, 127. 
 menial or domestic, 129. 
 apprentices, 130, 183. 
 laborers, 131. 
 stewards, factors, and bailiffs, 132. 
 
 rights and duties of hired servants, 
 129, u. 
 
 relative rights and duties of masters 
 and servants, 132-140. 
 
 settlement of servant, 132. 
 
 apprentice's right to exercise trade, 
 132. 
 
 master's right to correct servant, 133, 
 933- 
 
 servant's right to wages, 133. 
 
 master's right to maintain servant's 
 suits, 135. 
 
 right to protect servant, 619, 935. 
 
 their mutual right of defence, 135. 
 
 when master bound by contracts of 
 servants, 136, 137, n. 
 
 master entitled to earnings of servant, 
 135- 
 
 seducing, injuring, or enticing away 
 servants, action for, 136, 6g8. 
 
 master when liable for torts of ser- 
 vants, 136-140, 706. 
 
 master's liability to servant for in- 
 juries by machinery, &c., 133, n. 
 by fellow-servants, 134, n. 
 
 distinction between servant and con- 
 tractor, 139, n. 
 
 master's action for injuries to ser- 
 vant, 6g8. 
 
 employer's liability for contractor's 
 acts, I3g, n. 
 
 larceny by servant, 965, u. 
 
 embezzlement by servant, 971, n. 
 Materiality in perjury, gio. 
 Matrimonial causes, 142, C62, 665, n. 
 Maxims, 34. 
 
 Accessorium non duett, sed sequiiur 
 suum principale, 356. 
 
 Accessorius sequitur naturam sui 
 principalis, 875. 
 
II32 
 
 INDEX. 
 
 \Tke numbers refer to the top paginf^^ 
 
 Maxims, continued. 
 Actio personalis moritur cum persona, 
 
 773- 
 Actus Dei nemini facit injuriam, 
 
 305- 
 
 yEj-uitas sequitur legem, 472, 831. 
 
 A man must be just before he is per- 
 mitted to be generous, 609. 
 
 Benigne interpretamur chartas 
 propter simplicitatem laicorum ,^o\. 
 
 Cessanle ratione, cessat et ipsa lex, 
 513, 1020. 
 
 Consensus, non concubitus, facit 
 nuptias, 142. 
 
 Cujus est solum, ejus est usque ad 
 ccelum, 221, 739. 
 
 De minimis non curat lex, 417, 746, 
 
 875. 
 Equity follows the law, 472, 831. 
 Every man's house is his castle, 766. 
 Every right, when withheld, must 
 
 have a remedy, 668, 67S. 
 Ex antecedent i bus et consequentibus 
 
 fit optima interpretatio, 504. 
 Ex nudo pacta non oritur actio, 
 
 552- 
 Furtosus furore solum punitur, 864, 
 
 1042. 
 Grants are to be taken most 
 
 strongly against the grantor, unless 
 
 in the case of the king, 304. 
 Hcered'.tas nunquam ascendit, 385. 
 Jd cerium est, quod certum reddi 
 
 potest, 325. 
 Ignorantia juris, quod quisque ten^ 
 
 etur scire, neminem excusat, 868. 
 Impotentia excusat legem, 310. 
 In fictione juris semper subsistit 
 
 tequilas, 637. 
 Interest reipublicce ut sit finis litium, 
 
 777, 102 r. 
 Leges vigilantibus non dormientibus, 
 
 subveniunt, 725. 
 Lex neminem cogit ad vana, seu im- 
 
 possibilia, 701. 
 Mala graynmatica non vitiat chartam, 
 
 504. 
 Modus legem dat donationi, 458. 
 Nemo est hceres viventis, 291, 350, 
 
 3S3. 743- 
 Nemo in propria causa testis esse 
 
 debet, 1^7. 
 Nemo tenetur prodere seipsum, looi. 
 Nemo tenetur seipsum accusare, 34, 
 
 .157- . 
 No fiction shall extend to work an 
 
 injury, 637. 
 No man shall be allowed to stultify 
 
 himself, 438. 
 
 Maxims, continued. 
 No man shall be bound to accuse 
 
 himself, 34, 157. 
 No man shall take advantage of his 
 
 own wrong, 140, 158. 
 No use can be limited upon a use, 
 
 476. 
 Nothing shall be averred against a 
 
 record, 627. 
 Nullum tempus occurrit regi, 414. 
 Partus sequitur ventrem, 282, 512. 
 Pater est quern nuptia demonstrant, 
 
 160. 
 Patria potestas inpietate debet, non in 
 
 atrocitate, consistere^ 167. 
 Pricsumitur pro legitimatione, 172. 
 Qui facit per alium, facit per se, 136, 
 
 192. 
 Qui hcEret in litera, kceret in cortice, 
 
 504- 
 Qui non prohibet cum prohibere pos- 
 
 sit,jubet, 136. 
 Qui vi rapuit, fur improbior esse 
 
 videtur, 976. 
 Quicquid plantatur solo, solo cedii, 
 
 223, n. 
 Quod semel meum est, amplius meum 
 
 esse non potest, 461. 
 Quoties in verbis nulla est ambiguitas, 
 
 ibi nulla expositio contra verba 
 
 fienda est, 504. 
 Seisina facit stipitem, 383, n., 384, 
 
 459-. 
 Si quid universitati debetur, singulis 
 
 non debetur, nee quod debet uni- 
 
 versitas, singuli debent, 204. 
 Sic utere tuo, ut alienum non Icedas, 
 
 739- 
 Stabitur prcesumptioni donee probetur 
 
 in contrarium, 799. 
 The father to the bough, the son to 
 
 the plough, 275. 
 The greater the truth, the greater 
 
 the libel, 682, n. 
 The king can do no wrong, 34, 747 . 
 Ubi nullum matrimonium, tbi nulla 
 
 dos, 312. 
 Verba debent intelligi cum effectu, ui 
 
 res magis valeat quam pereat, 504. 
 Verba fortius accipiuntur contra pro- 
 ferentem, 504. 
 Verba intentioni debent inservire,Z04. 
 Victus victori in expensis condem- 
 
 nandus est, 811. 
 What ought to be done is considered 
 
 in equity as done, 829. 
 Where there is a legal right there is a 
 
 legal remedy by suit or action, 626. 
 Mayhem, 69, 73, 677, 950. 
 
INDEX. 
 
 \The numbers refer to the top paging^ 
 
 "33 
 
 Memory, time of legal, 43, n., 419, 
 note. 
 
 of the dead, blackening, 916, n. 
 Menial servants, 129. 
 Mensa et thoro, divorce a, 152, 663. 
 Merchants, custom of, 41, 880. 
 Mercheta, 274. 
 Mercian laws, 31. 
 Merger, 357. 
 
 of easements, 234, n. 
 Mesne lords, 254. 
 
 process, 759, 815. 
 
 profits, action of trespass for, 732. 
 Messuage, 222. 
 Metropolitan, 200. 
 Middlesex, bill of, 764. 
 Military courts, 49. 
 Military feuds, 252. 
 Minerals, ownership of, 222, n. 
 Mines, ownership of, 222, n. 
 
 right of common in, 230. 
 
 right of life tenant to work, 304, n.. 
 
 Ministerial acts and duties, defined, 
 
 102, n. 
 Minors. (See Infants, Parent and 
 
 Child.) 
 Misadventure, homicide by, 932. 
 Mischief, malicious, 976. 
 Misdemeanor, 848, n. (See Crime.) 
 
 high, 898. 
 
 no accessories in, 875. 
 
 trial of, upon information, loio. 
 Misnomer, 773, 1018. 
 Misprision, 897. 
 
 of treason, 534, 897. 
 
 of felony, 898. 
 
 positive misprisions, 898. 
 Mistake, 824, 868. 
 
 when it excuses crime, 868. 
 Mittimus, 1003. 
 
 Mixed actions, 673, 728, 729, 746. 
 Mixed larceny, 972. 
 Molliter manus imposuit, plea of, 676. 
 Monarchy, 16. 
 Monasteries, dissolution of, 427. 
 
 statute of, 209. 
 Money had and received, action for, 
 
 713, 824. 
 Money paid, laid out, &c., action for, 
 
 713- 
 
 Monks, civil death of, 71. 
 
 Monopolies, statute of, 530. 
 
 Monstrans de droit, 641, 748. 
 
 Month, 323. 
 calendar, 323. 
 lunar, 323. 
 
 Moral obligation, when a valid consid- 
 eration, 552. 
 
 Mart d'ancestor, assise of, 723, 724. 
 Mortgages, 338-341. 
 how considered at common law, 338, 
 
 note, 
 how considered in equity, 338, n., 
 
 826, 827, 830. 
 equitable mor^ages, 339, n. 
 defeasance of, 339, n., 469. 
 equity of redemption, 340, 830. 
 foreclosure of, 340. 
 powers of sale in, 341, n. 
 right of mortgagor or mortgagee to 
 
 fixtures, 225, n. 
 effect of mortgage on dower, 315, n., 
 339. 341. n. 
 Mortmain, 198, 423-427, 470, 499. 
 meaning of, 198. 
 license of, 192. 
 Mortuary, 535, 593. 
 Mortuum vadium, 338. 
 Mother. (See Parent and Child, Bas- 
 tard.) 
 as guardian by nature, or for nur- 
 ture, 175. 176, n. 
 consent to guardian's appointment, 
 when necessary, 177. 
 Motion, 775. 
 Mountebanks, 927. 
 Municipal corporations, 189, n. 
 
 ordinances of, 195, n. 
 Municipal law, 8-24, 61, 617. 
 Murder, 940-949. 
 
 offenders must be of sound memory, 
 
 941. 
 must be an unlawful killing, 942. 
 person killed must be reasonable 
 
 creature, in king's peace, 944. 
 there must be malice aforethought, 
 
 945- 
 malice express or implied, 946, 947. 
 punishment, 948. 
 Mute, standing, 534, 896, 1015. 
 
 Name of corporation, 193. 
 Narratio, 769. 
 Nations, law of, 8, 879. 
 
 offences against law of, 879-884. 
 violation of safe-conducts, 881. 
 violation of ambassador's rights, 
 881. 
 
 piracy, 882. 
 Natives, 1 14-122, 124. 
 Natural allegiance, 117. 
 
 law, 4. 5. 7. 
 
 person, 62. 
 
 liberty, 64. 
 
 death, distinguished from civil, 71. 
 Natural-born subjects, 114-122, 124. 
 Naturalization, 122, 406. 
 
1 134 
 
 INDEX. 
 
 \The nutnbers refer io the top ^aging^ 
 
 Naturalized citizens, rights and dis- 
 abilities of, 123, 124. 
 Nature, crime against, 954. 
 
 law of, 4, 5, 7. 
 
 guardian by, 175, 176, n. 
 Navigable river, 220, n. 
 Ne exeat regno, 76, 77, 899. 
 Necessaries, husband must furnish to 
 wife, 155. 
 
 parent to child, 162, n. 
 
 infant liable for, 184, n. 
 Necessity, when it excuses crime, 868. 
 
 homicide by, 929. 
 
 easement by, 231, n., 233, 234. 
 Negligence, of servant, contractor, car- 
 rier, &c., action for, 137-139, 715. 
 
 of officer, 714. 
 
 of attorney, 631, n., 715. 
 
 of tradesmen, bailees, &c., 715. 
 
 crime caused by, 867. 
 
 homicide by, 933, 940. 
 Negligent escape, 767, 816, 902. 
 Negligent fires, 138-140. 
 Negotiable paper, 574-578. 
 Negroes. (See Colored Persons.) 
 Neife, 282. 
 New assignment, 780. 
 New trial, 800, 804, 805. 
 Next friend, 181. 
 Next of kin, 381, 603, 613. 
 
 right of, to administer, 595, 603. 
 
 distribution among, 613. 
 Night, in burglary, 959. 
 Nil debet, plea of, 776. 
 Nil dicit, judgment by, 771, 809. 
 Nisi prius, courts of, 650, 790, 988. 
 
 justices of, 649. 
 
 commission of, 650. 
 
 trial at, 788, 790. 
 Nonage, 862. (See Infant.) 
 Non assumpsit, plea of, 776, 
 Non-claim, 491, 493. 
 Non compos mentis'. (See Idiot, In- 
 sanity. ) 
 Non est factum, plea of, 776. 
 Non est inventus, return of, 762, 763, 
 
 764, 816, 834. 
 Non-navigable river, 220, n. 
 Non prosequitur, "JIY. 
 Non sum informatus, judgment by, 
 
 809. 
 Nonsuit, 771, 783, 801, 808. 
 
 judgment as in case of, 790. 
 Non-user of easement, 234, n. 
 Norman conquest, 245. 
 Norman language once used in plead- 
 ing, 785. 
 Not guilty, plea of, 776, 1021. 
 Note of a fine, 490. 
 
 Note of hand, 575. 
 
 Notes, promissory, 575-578. 
 
 not subject to larceny, 969^ 
 
 forgery of, 977, n. 
 Notice, judicial. 51, 485. 
 Notice of trial, 791. 
 
 of dishonor, 577. 
 
 to quit, 331, 332. 
 Notice in ejectment, 731. 
 Nottingham, Lord, 646. 
 Novel disseisin, assise of, Tl<), 724, 
 
 728. 
 Novels in the civil law, 47. 
 Nudum pactum , 551. 
 Nuisance, abatement of, 620, 718, 741, 
 926, n. 
 
 defined, 620, 738. 
 
 private, 738-743, 850. 
 
 remedies for, 741, 850. 
 
 assize of, 742. 
 
 writ, quod permittat prostemere, 742. 
 
 public, 139, n., 850, 926. 
 
 caused by servant or contractor, ac- 
 tion for, 139, n., 140. 
 A'ul tort, plea of, 724. 
 Nul disseizin, plea of, 724. 
 Nul tiel record, 786, n. 
 Nullity of marriage, 452, n. 
 Nuncupative wills, 599. 
 Nurture, guardian for, 175, 176, n. 
 
 Oath of allegiance, 115, 116, 118, 124, 
 125. 
 
 of fealty, 114, 242, 246, 276. 
 
 of abjuration, 115, 125. 
 
 of supremacy, 115, 124. 
 
 of witnesses, 799. 
 
 to pleadings in equity, 836. 
 
 in cases of perjury, 909, n. 
 Obit, 426. 
 Obiter dicta, 36, ii. 
 
 Obligation of human laws, 5, n., 23, 
 24, n. 
 
 bf contract, I90, n. 
 Obligation or bond, 480. 
 Obligor and obligee, 480, 481. 
 Obscene libel, 916, n. 
 Obstructing of process, 901. 
 Occupancy, title by, to lands, 209-213, 
 
 413-417. 
 special, 414. 
 general, 414. 
 
 title by, to chattels, 522-530. 
 Offences, against law of nations, 879. 
 against public justice, 901. 
 against the public peace, 912. 
 against public trade, 919. 
 against public peace or economy 
 924. 
 
INDEX. 
 
 II3S 
 
 [ The numbers refer to the top paging.] 
 
 Offences, against the persons of indi- 
 viduals, 949. 
 against the habitations of individ- 
 uals, 956. 
 against private property, 963. 
 Office, 2ig, 228. 
 no rent of, 239. 
 may be entailed, 297. 
 held by implied condition, 333. 
 when forfeited, 333. 
 Office found, 119, n., 403, n., 749. 
 inquest of, 119, 413, n., 440, 749, 
 1004. 
 Officers, arrest by, 997, 998. 
 killing them in executing their office, 
 
 947- 
 homicide by, in discharge of duty, 
 
 930- 
 
 arrest by, with warrant, 997, 998. 
 
 arrest by, without warrant, qg8. 
 
 liability for negligence, 714. 
 
 execution of criminals by, 929. 
 Oleron, laws of, 667. 
 Open and close argument, right to, 
 
 795- 
 Ordeal, trial by, 1022. 
 Orders of council, right of printing, 
 
 532. 
 Ordinances of public corporation, 195, 
 
 note. 
 Ordinary, 71, 175, 200, 593, 594, 603, 
 
 604, 1032. 
 Original writ, 635, 637, 642, 756. 
 Orphans, apprenticing of, 131, n. 
 Ouster, 717, 728. 
 Ousterlemain, 261, 269. 
 Outlawry, 534, 763, 1012. 
 
 wrongful, forbidden, 82. 
 
 of corporation, 197. 
 
 outlaw cannot make a will, 598. 
 
 in criminal cases, 1012, 1013. 
 Overruling decisions, 36, n. 
 Overseers of the poor, 108. 
 
 appointment of, 109. 
 
 their rights, duties and liabilities, 
 109-112. 
 Overt act of treason, 888, 891. 
 Owling, 535. 
 Oyer, 772. 
 
 Oyer and terminer, commission of, 
 650, 987, 989. 
 
 court of. (See Court) 
 
 Pandects, 47. 
 
 Panel of jurors, 789, 791, 1023. 
 
 Paper-books, 784. 
 
 Papists, power to convey land, 440. 
 
 Paramount, lord, 254, 280. 
 
 Paraphernalia, 543. 
 
 Paravail, tenant, 254. 
 
 Parcel, distinguished from appurtenant, 
 
 222, n. 
 Parceners, 365. 
 Pardon, 1020, 1042. 
 plea of, 1020, 1035. 
 object of pardon, 1042. 
 manner of pardoning, 1043. 
 may be conditional, 1043. 
 effect of, 410, 1044. 
 not pleadable to impeachment, 986. 
 Parent and child, 127, 160-174. 
 
 rights, liabilities, and duties in gen- 
 eral, 160-174. 
 parent's duty of maintenance, 160- 
 
 164. 
 duty of protection, 165, 6ig, 935. 
 duty of education, 165. 
 power over children, 166. 
 parent's right to correct child, 167, 
 
 933. 
 duties of children to parents, 168. 
 rights and duties of step-father, 163, 
 
 note, 
 settlement of children. III. 
 emancipation of child, 167, n. 
 marriage without parent's consent, 
 
 146, 167. 
 illegitimate children, 169-174. (See 
 
 Bastard.) 
 parent's right of action for abduction 
 of child, 6g6. 
 for enticement of child, 167, n., 
 
 697, note, 
 for injury to child, l67,|n.,697, n. 
 for marrying child, 696. 
 for seduction of child, 135, n.. 
 167, n., 697, n. 
 parent's right to disinherit child, 161, 
 
 164. 
 to maintain child's lawsuits, 165, 
 Pares, 462. 
 Pares curtis, 250. 
 Pari materia, statutes in, 26, 11. 
 Parish, 188. 
 
 duties to repair highways, 106. 
 settlement in, in. 
 Park, 236. 
 Parliament — 
 powers of, 15, u. 
 may create corporation, Igi. 
 conveyance by act of, 483, 484. 
 trial of impeachments by, g84. 
 reversal of attainder by, 1040. 
 Parol conveyances, 445. 
 Parol contracts, 445, 555. 
 Parol evidence, 797. 
 Parricide, 948. 
 Pars rationabilis, 592, 
 
II36 
 
 INDEX. 
 
 \The numbers refer to the top paging?^ 
 
 Parson is sole corporation, 188, 191. 
 Partial divorce, 152, 663. 
 Particular estate, 346, 347, 348. 
 
 customs, 29, 33, 40-45, 540. 
 
 laws, 30, 33. 
 
 tenants, alienation by, 428. 
 Parties to a deed, 436, 443. 
 
 to a fine, 492. 
 
 to an action, 627. 
 privilege from arrest, 760. 
 Partition, 363, 366, 370, 416. 
 
 of chattels, 522, n. 
 Partnership, equitable jurisdiction over, 
 
 828. 
 Party-walls, 233, n. 
 
 Passengers, carriers of, 139, n., 562, n. 
 Passports, violation of, 831. 
 Pasture, common of, 228. 
 Patent rolls, 486. 
 Patents, 486, 530. 
 
 for new inventions, 530. 
 
 letters patent, grant by, 486, 487, n. 
 
 of nobility, 292. 
 Paupers, support of, 108, 163. 
 
 settlements of , ill. 
 
 apprenticing of, 131, n. 
 Pawns, 562, n., 563. 
 Payment into court, 775- 
 Peace, breach of, 90, 912, 998. 
 
 justices of, 97-103. 
 
 officers of, 86-106. 
 
 conservators of, 97-98. 
 
 security for, 90, 98, loi, 103, n., 159, 
 gSo, 982. 
 
 offences against, 912-918. 
 Peculiars, court of, 658. 
 Pecuniary causes in ecclesiastical courts, 
 
 662, 665, 11. 
 Pecuniary legacies, 6og, 610, n. 
 Peers, house of. (See Lords, House of.) 
 Peine forte et dure, 1016. 
 Penal statutes, 54, 711. 
 
 construed strictly, 54. 
 Penalty of a1>ond, 481, 826. 
 
 equitable relief from, 826, 830. 
 Pendente lite, alimony, 153. 
 Pension, 228. 
 Per capita, 389, n., 614. 
 Per stiipes, 3S9, 614. 
 Peremptory challenge, 1024. 
 
 mandamus , 670, 754. 
 Perjury, 909. 
 
 proof of, 1027. 
 
 subornation of, 910. 
 Per ininas, duress, 70. 
 Permissive waste, 430. 
 Pernancy, defined, 344. 
 Perpetuating the testimony of witness- 
 es, 838. 
 
 Perpetuities, rule against, 353, 354. 
 Person, injuries to, 674-694. 
 
 larceny from, -^74. 
 Personal actions, 673, 716, n. (See 
 Action at Law.) 
 
 jurisdiction over, 635, 637, 639. 
 
 when they die with the person, 773. 
 Personal chattels, 511. 
 Personal security, 68, 674. 
 
 injuries to, 674-685. 
 Personal liberty, 73. 
 Personal property in general, 508-521, 
 699. 
 
 title to, 511, 512. 
 
 injuries to, 699-717. 
 
 forfeiture of, 533 
 
 cannot be entailed, 297, 520. 
 
 may be limited in remainder, 520. 
 
 larceny of. (See Larceny.) 
 Persons, 62. 
 
 natural, 62. 
 
 artificial, 62, 185. 
 
 rights of, 61-85. 
 
 injuries to, 674-699 
 Petition in equity, 841, 842. 
 Petition of right, 67, 690. 
 
 forbids unlawful imprisonment, 74. 
 
 forbids taxing without consent, 81. 
 Petition de droit, 748. 
 Petitioning, right of, 83. 
 Petit jury, 786 1007. 
 
 serjeanty, 272. 
 
 treason, 534, 875, 885, 949. 
 Petty bag office, 642, 821. 
 Petit larceny, 894, 963. 
 Petty constable, 104. 
 Pews, 537. 
 Physicians, 667, 943. 
 
 responsibility for death caused by 
 medical treatment, 943, n. 
 
 liability for unskillfulness, 677, 
 Pignus, 562, n. 
 Pious uses, 594. 
 Piracy, 882. 
 
 Piscary, common of, 230. 
 Plaintiff, 627. 
 Pleadings, 769-781. 
 
 in general, 769, 
 
 declaration, requisites of, 769, 77a 
 
 venue, 769- 
 
 change of venue, 769. ' 
 
 names of the pleadings, 779. 
 
 pleas, 772-779. (See Pleas.) 
 
 demurrer, 782, 1018. 
 in equity, 835. 
 
 departure in pleading, 780. 
 
 duplicity in, 778, 780. 
 
 certainty and materiality in, 778. 
 
 new assignment, 780. 
 
INDEX. 
 
 [Tie numiers refer to the top J>aging.'\ 
 
 1137 
 
 Pleadings, verification of, 778, 780. 
 
 under Codes of Procedure, 781, n. 
 
 in equity, 832, 837. 
 
 in criminal cases, 1007, 1017. 
 Pleas, 772. 
 
 dilatory, 773. 
 
 to jurisdiction, 773, 774, 1017. 
 
 to the action, 772. 
 
 in abatement, 773, n., 774, 1018 
 to disability of plaintiff, 773. 
 
 in bar, 776-779, 835, 1019. 
 
 in confession and avoidance, 775, 
 
 779- 
 general issue, 776. 
 
 color in, 779. ^ 
 
 puis darrein continuance, 784. 
 
 in equity, 835. 
 
 to jurisdiction, 835. 
 to person, 835. 
 in bar, 835. 
 
 common, 635. 
 
 of the crown, 91, 635, 846. 
 
 to indictments, 1019. 
 Pledge, 561, 562, n. 
 
 estates in, 337. 
 Pledges of suit, 760, 770. 
 
 to prosecute, 762. 
 Plough-bote, 230, 326. 
 Pluries writ, 691, 763. 
 Pocket-sheriffs, 8g. 
 Poisoning, 942. 
 Police, offences against, 924. 
 Policy of insurance, 569. 
 Political liberty, 64. 
 Poll deed, 442. 
 
 Polls, challenge to, 792, 1024. 
 Polygamy, 145, 924. 
 
 proof of marriage in trial for, 150, 
 ii., 696. 
 
 divorce for, 151, n. 
 Pone, writ of, 759. 
 Poor, overseers of, 108. 
 
 support of, 108, 163. 
 
 settlement of, iii. 
 Poor laws, 71, 109, no. 
 Popular actions, 544, 712. 
 Posse comitatus, go, 745, 899, 914. 
 Possession, estates in, 344, 511. 
 
 right of, 372. 
 
 title by, 371. 
 
 writ of, 730, 813. 
 
 distinguished from seizin, 326, 477. 
 from use, 426. 
 from right of property, 721. 
 Possessory action, 374, 722. 
 Possibility, not alienable, 437. 
 Post fine, 490. 
 Postea, 802, 804. 
 Posthumous children, 69, 383. 
 
 73 
 
 Posthumous children may take in re- 
 mainder, 350. 
 Postliviinium, 121. 
 Power of sale in mortgages, 341, n. \ 
 
 of life tenants to lease, 307, n. 
 Power to revoke uses, 480. 
 Practice, in courts of law, 754-768. 
 
 in courts of equity, 832-843. 
 Pmcipe. 489, 494, 723, 759. 
 
 qttod reddat, 494. 
 
 tenant to, 496. 
 PrcEmunire, 77, 422, 534. 
 Prsetor, equitable jurisdiction of, 642. 
 
 fidei commissarius, 470, 471. 
 Praying in aid, 772. 
 Precedent conditions, 334, 337. 
 Precedents, authority of, 35, 36. 
 
 in equity, 28, n., 824. 
 Pre-contract, 143. 
 Pregnancy, plea of, 1041. 
 Premises of a deed, 446. 
 Prerogative, title by, 531. 
 
 contempts against, 899. 
 Prerogative court, 658. 
 Prescribing of laws, 10-12. 
 Prescription, title by, 418. 
 
 applies only to incorporeal heredit- 
 aments, 419. 
 
 presumes a lost grant, 420. 
 
 distinguished from custom, 41S. 
 
 in respect of commons, 229, 419. 
 
 to right of way, 231, n., 234, 419. 
 
 to other easements, 231, n., 233, n. 
 
 to customs, 43. 
 
 to franchises, 234. 
 
 to nuisances, 926, n. 
 
 period of, 419. 
 
 corporation by, 191, 192. 
 Presentation to a church, 500. 
 Presentment, prosecution by, 1004. 
 Press, liberty of, 917. 
 Presumptions, 799, 1028. 
 Presumption of legitimacy, 172. 
 Presumptive heir, 171, 383. 
 Pretended prophecies, 535. 
 Pretended titles, selling or buying, 
 
 437. 907- 
 Prevention of crimes, 980. 
 
 homicide in, 930. 
 Pricking the sheriffs, 88, n. 
 Primary evidence, 796. 
 Primer fine, 489. 
 Primer seizin, 259, 268, 269, 277. 
 Primogeniture, 217, 252, 387. 
 Principal in crimes, 873. 
 Principal and agent. 
 
 agents, general or special, 137, u. 
 
 principal's liability for agent's con- 
 tracts and torts, 136, 137, n. 
 
II38 
 
 INDEX. 
 
 \The nufttliers refer to the tap paging.^ 
 
 Principal and agent, corporations liable 
 
 for acts of agents, 195, n. 
 Principal challenge, 793. 
 Prison, breach of, go2. 
 Prisoner now allowed counsel, 1025. 
 Private corporation, i8g, n. , 192, n. 
 Private customs, 41. 
 Private nuisance, 738-743, 856. 
 
 caused by servant or contractor, 139, 
 n., 140. 
 Private persons, arrest by, 999. 
 Private statutes, 51, 485. 
 Private ways, 230. 
 Private wrongs, 62, 661-746. (See 
 
 Tort.) 
 Privies to a fine, 492. 
 Privilege, bill of, 766. 
 Privilege from arrest, 766, 768, 815. 
 Privileged communications, 681, 683, 
 note. 
 
 to lawyers, 7g8. 
 Privy council, judicial committee of, 
 
 648, n. 
 Privy seal, 487. 
 
 signet, 487. 
 
 verdict, 802, 1030. 
 Probate of will, 594, 595, n., 606, 664. 
 
 court of, 142, n. , 595, n., 651, n., 
 660, n. 
 Procedendo, writ of, loi, 668. 
 Procedure in common law courts, 756, 
 820. 
 
 in courts of equity, 832-843. 
 Process, civil, 759-768. 
 
 original, 759. 
 
 mesne and final, 759. 
 
 upon indictment. loii. 
 
 executed by sheriff, 91, 92. 
 
 obstructing execution of, 901. 
 Prochein ami, 181. 
 Proclamations, right of printing, 532. 
 Proctors, 627. 
 Profanity, 103. n., 992, n. 
 Profit-rent, 238. 
 Profit a prendre, 228, n. 
 Prohibition, writ of, 50, 144, 670, 993, 
 
 994- 
 Promises, 709. 
 Promissory note, 574. 
 
 consideration of, 552, n. 
 
 endorsement of. 576, 578. 
 
 not subject of larceny, 969. 
 Proper feud, 253. 
 Property, nature of, in general, 207-218. 
 
 right of, 78, 207-218, 373. 
 
 real, 2\<^et seq., 6gg. 
 
 personal, 219, 508 et seq. 
 
 title to. (See Title.) 
 
 in possession and in action, 511. 
 
 Property may be taken by eminent 
 domain, 79. 
 
 crimes against, g56-g8o. 
 Prosecution of crimes, 1004. 
 Prosecution, malicious, 685. 
 Protest in case of duress of goods, 70, 
 
 note. 
 Protest of bills and notes, 577. 
 Prothonotaries, 769, 773. 
 Protestants, naturalization of, 125. 
 Provincial constitutions of canon lavir, 
 
 48. 
 Provisions, warranty in sale of, 560, 11., 
 
 715- 
 Provisions, ecclesiastical meaning of, 26, 
 Proviso, in a statute, 56- 
 
 trial by, 790. 
 Public corporations, 189, n. 
 
 ordinances of, igs, n. 
 Public grant, conveyance by, 486, 487. 
 Public nuisance, 139, n., 850, 926. 
 Public verdict, 802. 
 Public wrongs. (See Crimes.) 
 Publication of libel or slander, 628, n., 
 
 917. 
 Puffendorf, 25, 27. 
 Puis darrein continuance, plea, 784. 
 Puisne barons of the exchequer, 638. 
 
 justices, 635. 
 Punishment of crimes, 850-860, 1035, 
 1045. 
 
 end of, 854. 
 
 measure of, 855. 
 
 capital, 72, 852, 859, 896, 1045. 
 
 power of, 851. 
 
 severity of, 859. 
 
 cruel or unusual forbidden, 68, n. 
 Pur auter vie, tenant, 303, 413, 414. 
 Purchase, title by, 119, n., sgg, 401, 
 402. 
 
 distinguished from descent, 119, n., 
 376, 400, 401. 
 
 words of purchase distinguished from 
 words of limitation, 401. 
 Purpresture, 927. 
 
 Quakers, marriage of, 149, n. 
 Qualified fees, 294. 
 property, 513. 
 
 in animals, 513-516. 
 
 in the elements, 516. 
 
 in property bailed, 517, 563. 
 Quantum meruit, action on, 713. 
 Quantum valebant, action on, 713, 
 
 770. 
 Quare clausum fregit, 735. 
 Quare ejecit infra terminum, 728, 733. 
 Quarantine of widow, 318. 
 Quarter sessions, court of, 989. 
 
INDEX. 
 
 \The numbers refer to the top paging.] 
 
 "39 
 
 Quasi corporations, igo, n. 
 Que estate, prescribing in, 418, 420. 
 Queen's bench, court of, 635, 636, 986. 
 Queen's counsel, 629, 630, 
 Qui tarn actions, 712, 751, loog. 
 Quia emptores, statute of, 50, n., 265, 
 280, 286, 318, 343, 425, 435, 446, 447, 
 448. 
 Quick with child, plea of, 104. 
 Quiet enjoyment, covenant for, 451, n. 
 Quinto exactus, return of, 763. 
 Quit-rents, 240. 
 Quo minus, writ of, 639 764. 
 Quo warranto, information in nature of, 
 752, 753, loio. 
 
 writ of, 752. • 
 
 Quod computet, judgment of, 714. 
 Quod permittai prosternere, writ of, 
 
 742. 
 Quorum clause in justices' commissions, 
 
 99, 989. 
 Quorum in corporations, 194, n., 198, 
 note. 
 
 justices of the, 99, 989, 990. 
 
 Rack-rent, 240. 
 Rape, 951, 952. 
 
 divorce for, 151, n. 
 
 evidence in trial for, 952, 953. 
 
 homicide to prevent, 931. 
 
 liability of infants for, 864, n. 
 
 appeal of, 282. 
 Rasure in a deed, 456. 
 Ravishment, writ of, 695, 697. 
 
 of wife, 158. 
 Reading of deeds, 452. 
 Real actions, 635, 673, 711, 722-727. 
 Real chattels, 510. 
 Real property, 219 et seq.. 699. 
 
 available to pay owner's debts, 293, 
 n., 618. 
 
 injuries to, 717-746. 
 
 trespass to, 734-738. 
 
 nuisance to, 738-743. 
 
 waste to, 743-746. 
 
 execution against, 817, 818. 
 Rebellion, commission of, 834. 
 Rebutter, 779. 
 Recaption, remedy of, 6ig. 
 Receiving stolen goods, 876, 903. 
 Recognizance, 481, 573. 
 
 condition of, 482. 
 
 for the peace or good behavior, 981, 
 982. 
 Recognitors, 649, 724- 
 Record, 35, 38, 626, 627, 784. 
 
 of deeds, 455, n., 483. 
 
 alienation by, 483. 
 
 entry of, at assizes, 790. 
 
 Record, as evidence, 796. 
 
 court of, 626. 
 
 debt of, 573. 
 
 trial by, 627, 786, n. 
 
 diminution of, 1039. 
 Recovery, common. (See Common Re 
 
 covery.) 
 Recrimination, in suit for divorce, 151, 
 
 note. 
 Rectory, induction into, 459. 
 JReddendum of a deed, 447. 
 Redemption of mortgaged estate, 340. 
 Redress of injuries, 617. 
 
 by the act of the parties, 618. 
 
 by action, 625 . 
 Refreshing memory, 797. 
 Regardant, villeins, 281. 
 Registrar, power to solemnize marriage, 
 
 149, n. 
 Registry of deeds, 455, n., 483. 
 Rehearing in equity, B41. 
 Rejoinder, 779. 
 Relationship, degrees of, how reckoned, 
 
 377-382. 
 Relative rights and duties, 62, 674. 
 
 injuries to, 694-699. 
 Relatives, defence of, 619. 
 Relator, in information, 753, 821, 1009. 
 Release of lands, 467. 
 
 of easement, 234, n. 
 
 lease and release, 479. 
 Reliefs, feudal, 251, 258, 268, 277 
 Religious corporations, 188, n., 199, u. 
 
 alienation in mortmain to, 423-427. 
 Remainder in chattels personal, 520, 
 Remainder, estates in, 344-355. 
 
 defined, 345. 
 
 conveyance of, by 1 ivery of seizin, 347, 
 461. 
 
 cannot be limited after a fee, 346. 
 
 when barred by common recovery, 
 
 493, 496. 
 depends upon particular estate, 346. 
 particular estate created at same time, 
 
 348. 
 cannot depend on estate at will, 
 
 347- 
 when remainder must vest, 348. 
 vested remainders, 349. 
 may be aliened, 437. 
 contingent remainders, 34g, 350. 
 how defeated, 351. 
 cross-remainders, 506. 
 remainderman's right to Bxtures,22} 
 
 note, 
 trustees to preserve, 351. 
 Remedial part of laws, 21. 
 Remedial statutes, 51, 55. 
 liberally construed, 55. 
 
1 140 
 
 INDEX. 
 
 \The numbers refer to the top paging^ 
 
 Remedies, civil, by act of the parties, 
 618-624. 
 
 by suit or action, 618, 625, 672 et seq. 
 Remitter, 702. 
 Rent, 238, 239, 447, 463. 
 
 charge, 239. 
 
 distinguished from annuity, 238. 
 
 seek, 239. 
 
 service, 239. 
 
 incident to reversion, 239, 356. 
 
 payable by tenant f«r years, 327, n. 
 
 distinguished from exception, 239. 
 
 may be entailed, 297. 
 
 appointment of, 307, 330. 
 
 rents of assize, 240. 
 
 chief rents, 240. 
 
 quit rents, 240. 
 
 rack rent, 240. 
 
 fee-farm rent, 240. 
 Repair of highways, 106. 
 
 of bridges, 106, 927. 
 
 of way, 233, n. 
 
 of leased premises, 328, n. 
 Repeal of statutes, 57, 58. 
 Repleader, 807. 
 keplegiari facias, writ of, 701. 
 Replevin, action of, 700-703. 
 Replication. 779. 
 Reply in equity, 837. 
 
 in code pleading, 782, u. 
 Reporters, 38. 
 Reports of cases, 37. 
 Representation, in descents, 389, 394. 
 
 in distribution, 613, 614. 
 Reprieve, 1041. 
 Reprisal, remedy of, 619. 
 Republication of will, 601. 
 Repugnant conditions, 293, n., 337. 
 Repugnant laws, 56. 
 Repugnant provisions in a deed or will, 
 
 505. 
 Reputation, injuries to, 73, 678-685, 
 
 915. 
 Requests, court of, 643. 
 Rere fiefs, 252. 
 Rescous, 701, 994. 
 Rescue, 816, goo, 903. 
 Reservations in deed, 447. 
 
 distinguished from exceptions, 239. 
 Resistance, right of, 619. 
 Res gestae, 797, n. 
 Residuary legatee, 613. 
 Respcmdeat ouster, T]S, 8og. 
 Respondentia, 567, 570. 
 Responsa pradentum, 47. 
 Restraining statute, 52, 53. 
 Restitution, writ of, 754. 
 Restitution of conjugal rights, suit for, 
 
 663. 
 
 Restraining statute, 465. 
 Resulting use, 443, 476. 
 Retaliation as a penalty, 855, 950. 
 Retorno habendo, writ de, 703, 814. 
 Retraxit, 771-808. 
 Retrospective laws, 12, n. 
 Return false, action for, 670, 714, 8oa 
 Return of writs, 756, 791. 
 
 to mandamus, 669. 
 
 to habeas corpus, 693, n. 
 
 of nihil, 761. 
 
 of non est inventus, 762. 
 
 of cepi corpus, 765. 
 Return day of writs, 757, 758. 
 Returns of the term, 758. 
 Reus, 627. 
 Revealed law, "J. 
 Reversal of judgment, 813, 1039. 
 
 of outlawry, 763, 1017. 
 Reversion, 297, 344, 355. 
 
 its incidents, 356. 
 
 may be aliened, 437. 
 
 when barred by common recovery 496, 
 
 assignee, entitled to what remedies, 
 709. 
 
 reversioner's right to fixtures, 227, n. 
 Revertendi animus, 514, 960. 
 Review, bill of. 842. 
 
 commission of, 658. 
 Revival of actions, 774. 
 
 of judgment, 819. 
 Revivor, bill of, 837. 
 Revocation of devises, 500. 
 
 of uses, 476, 480. 
 
 of gift, 548, n. 
 
 of will, 500, 598, 6oi. 
 Right, writ of, 725. 
 
 petition of, 67, 74, 6go. (See Petition 
 of Right.) 
 
 of possession, 372, 722, 725. 
 
 of personal security, 68, 674. 
 
 of personal liberty, 73, 674. 
 
 of property, 78, 207-218, 373, 699. 
 Rights, 61, 62. 
 
 bill of, 68, n., 75, 89. (See BiU of 
 Rights.) 
 
 of persons, 61, 617, 674. 
 absolute. 61-85. 
 relative, 62. 
 
 of things, 207, 617. 
 Riot, 900, 912, 913, 930. 
 Riot act, 913, 930. 
 Riotous assembly, 912. 
 River. (See Watercourse.) 
 Roads, surveyor of, 106. 
 Robbery, 974, 976. 
 
 there must be a taking, 974, n. 
 
 it must be from the owner's person, 
 or in his presence, 975, 11. 
 
INDEX. 
 
 [The numbers refer to the top paging.] 
 
 1 141 
 
 Robbery must be force, or putting in 
 fear, 975, n., 976. 
 
 homicide to prevent, 931. 
 
 remedy against hundred for, 711. 
 
 place of trial of, 1006. 
 Rolls, master of, 647, n., 833, 839. 
 Roman law, 47. (See Civil Law.) 
 Rope-dancers, 927. 
 Routs, 913. 
 
 Royal fish, 235, 525, 532. 
 Royal grants of land, 486. 
 
 Safe-conducts, violation of, 881. 
 Sailors, may be sent out of realm, 77. 
 St. Thomas's hospital, ip8. 
 Sale, 553. 
 
 what contracts of, to be in writing, 555. 
 
 when property passes, 5S5' 
 
 by one having no title, 556, 557. 
 
 stoppage in transittt, 556, n. 
 
 in market overt, 557. 
 
 warranty in sales, 559, 715. 
 
 of title, 559, n., 716. 
 
 of quality, 559, 560, u,, 716. 
 
 by sample, 560, n. 
 
 rule of caveat emptor, 560. 
 
 by infant, 183, n. 
 
 of lands, contract to be in writing, 710. 
 Salic law, 386. 
 Salvage, 567. 
 Sample, sale by, 560, n. 
 Sanction of laws, 22. 
 Sanctuaries, 103 1. 
 Satisfaction, accord and, 621. 
 Satisfaction of legacy, 610, n. 
 Saxon laws, 30. 
 
 Scandalous matter in pleading, 832. 
 Scandalum magnatum, 680. 
 Scienter, 706, n. 
 
 Scire facias, 641, 751, 814, 816, 8ig. 
 Scutage, 266, 267, 269. 
 Se defendendo, homicide, 69, 933. 
 Seal of a corporation, 195. 
 Seal, privy, 487. 
 
 great, 487, 641. 
 Sealing of deeds, 452. 
 
 of public grants, 486, 487. 
 Seals, their antiquity, 452. 
 
 origin of, 453. 
 
 effect of breaking off or defacing, 456. 
 
 contracts under seal, 573. 
 
 in sealed instruments consideration 
 presumed, 553. 
 Seamen, naturalization of, 124, n., 125. 
 Search warrant, 102, n. 
 Secondary evidence, 796- 
 
 use, 476. 
 Secretary of state in England, 86. 
 Secta, 770. 
 
 Security, personal right of, 68. 
 Security for good behavior, 980-984. 
 
 to keep the peace, 90, 98, loi, 103, 
 n., 159, 913, 981. 
 Security to keep the peace may be had 
 
 by husband and wife against each 
 
 other, 159. 
 Seduction of child or servant, 135, 167, 
 n., 697, n. 
 
 of ward, 698, n. 
 
 of wife, 695, 696. 
 Seignory, 264, 280. 
 Seisin, 289, 290, 314, 383. 
 
 in law, 309, 314. 
 
 in deed, 309, 314. 
 
 actual, 383. 384, 459. 
 
 distinguished from possession, 326, 
 477. 
 
 writ of, 813. 
 
 livery of, 257, 288, 303, 326, 458,461. 
 Selden, 30, 638, 690. 
 Self-defence, 69, 619. 
 
 homicide in, 69, 933. 
 Self-murder, 937. 
 
 Sequestration in chancery, 834, 995. 
 Serjeant at law, 629. 
 Serjeanty, grand, 266, 269, 
 
 petit, 272. 
 Servants. (See Master and Servant.) 
 Services, feudal, 250, 255. 
 
 free or base, 255, 282, 285. 
 
 certain or uncertain, 255. 
 
 villein, 282, 285. 
 Servient tenement, 231, n. 
 Sessions, court of, 103, u., 989. 
 Set-off, 776. 
 
 Settlement, act of, 25, 68, 116, 1043. 
 Settlements of the poor, iii. 
 
 of servants, 132. 
 
 of bastards, ill, 174. 
 Several fishery, 237. 
 Severalty, estates in, 358. 
 Severance of jointure, 363. 
 Shelley's case, rule in, 400. 
 Sheriff, 86-94, 998. 
 
 origin of the name, 86. 
 
 who may be, 87. 
 
 judicial powers of, go. 
 
 mode of nominating, 87, 88. 
 
 ministerial powers of, 90, 91. 
 
 duties of, 90, 91, 92. 
 
 process upon writ of inquiry, 810. 
 
 entering and quitting office, 88, 89. 
 
 power to arrest for crime, and to 
 keep the peace, 90. 
 
 must execute writs and process, 91, 
 94, n., 790, 815. 
 
 arrest by, 998. 
 
 liability for wrongful acts, 714. 
 
1 142 
 
 INDEX. 
 
 [ The numbers re/er to ike top paging^ 
 
 Sheriff, liability for false return, es- 
 cape, &c., 93, 714; 
 for acts of subordinates, 94 , n. 
 
 under sheriff, appointment and duties, 
 92. 
 right to practice as attorney, 92. 
 
 bailiffs of, their duty, 92. 
 
 special bailiff of, 92. 
 
 gaolers appointed by. 93. 
 
 escapes, liable for, 93, n., 714, 767, 
 815. 
 
 contempt of court by, 993. 
 
 execution of criminals by, 1044. 
 
 sheriff's jury, 809, 810, 814. 
 Shifting use, 476. 
 Shipwrecks. (See Wrecks.) 
 Shop-books, 797. 
 Signet, privy, 487. 
 Signing of deeds, 452, 454. 
 
 of wills, 500, 501. 
 Sign-manual, 487. 
 Simony, 26. 
 
 Simple contract, 573, 709. 
 Simple homage, 115. 
 Simple larceny, 963. 
 Si non omiies, writ of, 651. 
 Single bond, 480. 
 Slander, 678-682. 
 
 varieties of, 678, n. 
 
 J>er se, 678, n., 680. 
 
 with special damage, 679, n., 681. 
 
 when words privileged, 681, 683. 
 
 of title, 680, n., 681. 
 
 scandalum magnatwHy 680. 
 Slavery, 127. 
 Smuggling, 919. 
 Socage, 256, 270-279. 
 
 derivation of the word, .271. 
 
 free and common, 256, 270, 271. 
 
 guardian in, 176, 277, 697. 
 
 villein, 256, 284. 
 
 socage lands, descent of, 388. 
 Society, origin of, 13, 212. 
 Sodomy, 954. 
 
 assault to commit, 955. 
 
 ground of divorce, 151, n. 
 Soldiers, may be sent out of realm, 77. 
 Sole corporation, 187, 195. 
 
 conveyance to, 293. 
 
 power to take personal property by 
 succession, 539. 
 Solicitor, 628. 
 Solicitor-general, 629, 630. 
 Son assault demesne, plea of, 676, 777. 
 Special agent, 137, n. 
 
 bail, 765, 767, 768. 
 
 bailiff, 92. 
 
 case, 802. 
 
 demurrer, 782. 
 
 Special jury, 791. 
 
 occupant, 414. 
 
 plea, 776. 
 
 pleading, 777. 
 
 property. (See Qualified Property.) 
 
 statute, 51. 
 
 tail, 297. 
 
 verdict, 802. 
 
 warrant, 998. 
 Specialty, debt by, 573, 607, 707. 
 Specific legacies, 609, 610, n. 
 Specific performance of contract, 829. 
 Spirit of a law, 27. 
 Spiritual courts. (See Ecclesiastical 
 
 Courts.) 
 Springing uses, 475. 
 Stafford, Lord, attainder of, 104. 
 Standing mute, 534, 896, 1015. 
 Star-chamber, court of, 82, 457, 834, 
 
 897. 
 Stare decisis, doctrine of, 36, n. 
 State, remedies against, 748, n. 
 
 cannot be disseized, 749- 
 Stated account, action on, 713, 714. 
 Statham, 39. 
 Statutes, in general, 50. 
 
 interpretation and construction of, 
 26, 27, 52-59, 823. 
 
 modes of citing. 50, n. 
 
 public and private, distinction be- 
 tween, 51. 
 
 conveyance by private statute, 483— 
 485- 
 
 private statute not judicially noticed, 
 
 485- 
 declaratory, 51. 
 general or special, 51. 
 remedial, 51. 
 in pari materia, 26. 
 restraining and enlarging, 51, 52, 53, 
 
 465. 
 remedial and penal how construed, 
 
 54. 55- 
 repeal of, 57, 58. 
 corporation created by, 191, 192, 
 
 note. 
 Statute of distributions, 613. 
 
 of frauds, 445, 467, 477, 500, 555. 
 
 574, 599. 710- 
 of limitations, 121, n., 451, n., 725, 
 
 777, 1007. 
 of fraudulent conveyances, 55, 444, 
 
 n., 535. 547.906- 
 of wills, 499. 
 of uses, 320, 473. 
 of de doriis, 296, 300, 450, 495. 
 de religiosis, 424. 
 of amendments, and jeofails, 8l2. 
 modus levandi fines, 489, 
 
INDEX. 
 
 [The numbers refer to the top paging.'\ 
 
 "43 
 
 Statute of quia emptores. (See Quia 
 Emptores. ) 
 
 Statute merchant, 342, 346, 510, 728, 
 819. 
 
 Statute staple, 342, 436, 482, 510, 728, 
 819. 
 
 Statutes of a corporation, 195, 197. 
 
 Staundforde, 39. jn<fc 
 
 Stealing. (See Larceny.) 
 
 Step-father, rights and duties of, ^63, 
 note. " 
 
 Stewards, 132. 
 
 Stint, common without, 229. 
 
 Stipulation, 668. 
 
 Stipendiary magistrates, 100, n. 
 
 Stirpes, succession z», 389. 
 
 Stock corporations, 193, n., 198, n. 
 
 Stolen goods, receiving, 903. 
 
 Stoppage (in civil law), 776. 
 
 Stoppage in transitu, 556. 
 
 Strangers to a fine. 492. 
 
 Strict construction of laws, 54, n. 
 
 Strict foreclosure, 340, n. 
 
 Striking in the king's palace or courts 
 of justice, 899. 
 
 Struck jury, 791. 
 
 Stultification of one's self not per- 
 mitted, 438. 
 
 Subinfeudation, 243, ii., 280, 281, 425, 
 
 435- 
 Subjects, natural born, 114, 117, 121, 
 
 122. 
 Sub-lease, 328, n. 
 
 Subordinate magistrates. (See Magis- 
 trates, subordinate.) 
 Subornation of perjury, 910. 
 SuSpcena ad testificandum, 797. 
 Subpcena in equity, 831-835, 838, 839. 
 
 its origin, 644. 
 Subscription of witnesses to wills, 
 deeds, &c. , 503. 
 
 of testator to will, 501. 
 Subsequent conditions, 334, 337. 
 Subtenancy, 328, n. 
 Subtraction, 663, 665. 
 Succession, title by, to land, 375-399- 
 
 to chattels, 538. 
 
 right of, in corporations, 193, 538. 
 Successors, when word necessary in 
 
 conveyance, 293, 539. 
 Sufferance, estate at, 331. 
 Suicide, 598, 937, 938. 
 Suit at law, 672. (See Action.) 
 
 process in, 759. 
 
 pleadings in, 769. 
 
 in equity, 832. 
 
 meaning secta, 77°- 
 Summary convictions, 103, u., 991. 
 Summing up to jury, 800. 
 
 Summoners, 759. 
 
 Summons, J59. 
 
 Sunday, civil process not to be served 
 
 on, 766. 
 Supersedeas, writ of, 101, 993. 
 Superstitious uses, 426, 427, 822. * 
 Supplemental bill, in equity, 837. 
 Support to land, right of, 231, n., 233, 
 
 note. 
 Supremacy, oath of, 115, 124. 
 Supreme court of judicature, 651, n. 
 
 of the United States, 652, n. 
 Sur- rebutter, 779. 
 Sur-rejoinder, 779. 
 Surrender, title by, 468. 
 
 deed of, 468. 
 Surveyors of highways, 106. 
 
 how chosen, 107. 
 
 duties of, 107. 
 Survival of cause of action, 773. 
 Survivorship of joint estates, 361, 362, 
 364- 
 
 of estates in coparcenary, 366. 
 
 of things personal, 521. 
 Suspension of habeas corpus, 75. 
 Swearing, crime of, 992. 
 Swearing the peace, 982. 
 Sydney, Algernon, 889. 
 Syllabus of a report, 38, n. 
 Syngrapha, 442. 
 
 Tacitus, idea of government, 16. 
 Tail, estate in, 297-302. 
 
 general, 297. 
 
 special, 297. 
 
 male, 298. 
 
 female, 298. 
 
 tenant in, 293, 297. 
 
 discontinuance of estate, 429. 
 
 estate how barred, 300, 302, 491. 
 
 not subject to merger, 357. 
 
 conveyance of, 463. 
 
 after possibility of issue extinct, 307, 
 431. 
 Tale, or count, 769. 
 Talesmen, 794, 1025. 
 Taltarum's case, 300. 
 Taxes, 80, 531. 
 
 Teacher, power to correct pupil, 168. 
 Tenancy, 
 
 in tail, 297-302. 
 
 for life, 303-321. 
 curtesy, 308-311. 
 dower, 311-321. 
 
 for years, 322. (See Landlord and 
 Tenant.) 
 
 at will, 328. 
 
 from year to year, 330. 
 
 by sufferance, 351. 
 
1144 
 
 INDEX. 
 
 \Tke numbers refer to the top paging^ 
 
 Tenancy, 
 
 by statute, 342, 432. 
 
 hy elegit, 342, 432, 818. 
 
 joint, 358. 
 
 in common, 368. 
 Tenant, 254. 
 
 disclaimer by, 429. 
 • attornment by, 264, 429, 435, 436. 
 
 paravail, 254. 
 
 in capite, 255, 258, 265, 269, 280,435. 
 
 to \ht prtEcipe, 494, 496. 
 
 in tail, 299-302. )»• 
 
 for life, 303. 
 
 by curtesy, 308-3 1 i.j 
 
 in dower, 311-321. 
 
 for years, 322. (See Landlord and 
 Tenant.) 
 
 at will, 328. 
 
 from year to year, 330. 
 
 in common, 368, 521. 
 Tender, of issue, 780, 781, 783. 
 
 of payment, 622, 775. 
 
 of fees to witness, 797. 
 
 of price in sales, 556. 
 
 paying money into court, 775. 
 Tenement, defined, 219, 254, 256. 
 
 dominant and servient, 231, n. 
 Tenendum of a deed, 446. 
 Tenure, feudal, 241-285. 
 
 lay, 255, 285. 
 
 spiritual, 285. 
 
 by comage, 266. 
 
 in capite, 255, 258, 265, 269, 280,435. 
 
 in knight service, 256. 
 
 in socage, 256, 270-279. 
 
 by grand serjeanty, 266, 269. 
 
 by petit serjeanty, 272. 
 
 in burgage, 273. 
 
 in gavelkind. 274. 
 
 copyholds, 269, 279, 284. 
 
 in anciant demense, 284. 
 
 in frankalmoign, 285. 
 
 by divine service, 286. 
 Term of years, 325. 
 
 is a chattel, 509. 
 Termor, 324. 
 Terms of court, 757, 758. 
 
 issuable, 789. 
 Terre-tenant, 280, 470. 
 Testament, 216, 597, 599. (See Wills.) 
 Testamentary causes. 664. 
 
 jurisdiction over, 664, 665, n. 
 Testamentary guardian, 177, u., 178, 
 
 278, 697. 
 Testatum capias, 762. 
 Teste of writs, 554, 757, 761. 
 
 of warrant, 998. 
 Theft, 963. (See Larceny.) 
 Theft-vote, 904. 
 
 Theodosian code, 47* 
 Things in action, (See Choses in Ac- 
 tion. ) 
 Things personal, 219, 508. 
 
 real, 219. 
 Threats, injury by, 675. 
 Timber-trees, waste by injuring, 430. 
 'Sbjif , mode of reckoning, 323. 
 Tithles, 227, 228. 
 TilSiing-man, 104-106. 
 Title, slander of, 681. 
 Title to lands, 371. 
 by descent, 214, 375-399. 
 by purchase, 399 et seq. 
 by escheat, 215, 402-413. 
 by occupancy, 209-213, 413-417. 
 by prescription, 418-421. 
 by adverse possession, 374, n., 421, 
 
 n., 719. 
 by forfeiture, 334, 408, 422-433. 
 
 (See Forfeiture.) 
 by alienation. 434-507. 
 pretended, selling or buying, 437, 
 
 906. 
 warranty of. (See Warranty.) 
 to things personal, 522. 
 by occupancy, 522-530. 
 by accession and confusion, 526. 
 by prerogative and forfeiture, 
 
 531-535- ' 
 by custom, 535-537- 
 by succession, marriage and judg- 
 ment, 538-545- 
 by gift, grant and contract, 546- 
 
 578. 
 by bankruptcy, 579-588. 
 by testament and administration, 
 215, 589-615. 
 to property abandoned, 213. 
 Toft, 222. 
 Tort, defined, 62, 137, n., 618. 
 
 actions for, 137, n., 167, n., 661 et 
 
 seq. 
 survival of actions for, 773. 
 damages for, 545. 
 remedies for, 618-621. 
 liability of married women for, 156, 
 
 157- 
 of infants for, 185, n. 
 of corporations for, 196, n. 
 of master and servant for, 133, u., 
 
 137-139- 
 (See Assault, False Imprisonment, 
 Libel, Slander, Nuisance, Fraud, 
 Negligence, &c.) 
 Total divorce, 151, 663. 
 Tout temps prist, 775. 
 Trade, offences against, 918, 
 right to exercise, 132. 
 
INDEX. 
 
 "45- 
 
 [The numbers refer to the top paging^ 
 
 Trade fixtures, 227, n. 
 
 Trader, under bankrupt laws, 579, 
 
 585- 
 Traitors, cannot make wills, 598. 
 
 attainder of, 408-411, 1039. 
 
 forfeiture of property, 1037. (See 
 Forfeiture.) 
 Transitory actions, 769. 
 Transportation, punishment by, 77. 
 Traverse, 693, n., 779, 781, 1024. 
 Treason, 884-893. 
 
 misprision of, 534, 897. 
 
 petit, 534, 875, 885, 949. 
 
 constructive, 885. 
 
 high, compassing death of king, 886. 
 
 overt act required, 888. 
 
 how far words treasonable, 888. 
 
 violating king's companion, 889. 
 
 levying war, 890. 
 
 adliering to enemies, 891. 
 
 in the United States, 891, n. 
 
 is a felony, 894. 
 
 punishment of, 892. 
 
 attainder for, 408-411, 1036. 
 
 forfeiture for, 408-411, 533, 1037. 
 Treasure-trove, 214, 235,420,532,750, 
 752, 898. 
 
 coroner's power concerning, 96. 
 Treasurer, Lord, 633. 
 Treble costs, 77. 
 
 Treble damages, 432, 673, 677, 722, 746 
 Trees, ownership of, 221, n., 222, n. 
 Trespass, defined, 734, 735. 
 
 quitre clausum fregit, 735. 
 
 ab initio, 737. 
 
 when justifiable, 737, 738. 
 
 by cattle, 736. 
 
 continued, 737. 
 
 to chattels, 703. 
 
 element of, in larceny, 964, n. 
 
 vi et armis, action of, 637, 675, 677, 
 678, 694, 695, 696, 697, 703, 
 734, 736. 746, 762. 
 for mesne profits, 732. 
 Trespass on the case, action of, 637, 
 643, 678, 714, 735, 742, 790. 
 
 distinguished from trespass, 705, 735. 
 Trial, by jury, 786, 1022. 
 
 at bar, 788, 1023. 
 
 nisi prius, 788-790. 
 
 by record, 786, n. 
 
 by proviso, 790. 
 
 notice of, 791. 
 
 new, 800, 804, 805. 
 
 in equity, 829, 840. 
 
 ancient modes of, 1022. 
 
 in criminal cases, 1022. 
 Tribonian compiles civil law, 47. 
 Tributes, 531. 
 
 Trineda necessitas, 106, 286. 
 
 Triors of jurors, 793. 
 
 Trover and conversion, 703, 705. 
 
 True-bill, 1006. 
 
 Trust, breach of, 965, n. 
 
 Trustees in bankruptcy, 586, 587. 
 
 Trustees to preserve contingent remain. 
 
 ders, 351. 
 Trusts, 470-478. 
 
 origin of, 471. 
 
 jurisdiction over, 477, 824, 830. 
 
 curtesy in, 310, n, 
 
 dower in, 315, n. 
 
 must be manifested or proved in 
 writing, 477. 
 Tumbrel, 794, 923. 
 Turbary, common of, 230. 
 Turnpikes, 107. 
 Tutor, of Roman law, 175. 
 Twelve tables, laws of, 46, 234, 580, 
 
 591, 858, 931. 
 
 Ultra vires, doctrine of, 194, n. 
 Umpire, 622. 
 Uncore prist, 775. 
 Under-lease, 328, n. 
 Under-sheriff, 91. (See Sheriff.) 
 Under-tenants, of life tenants, 306. 
 
 of tenants for years, 328, n. 
 United States, courts of, 653, a. 
 
 constitution of, 15, n., 79, n., 190, 
 n., 204, n., 235, n. 
 
 common law of, 33, n. 
 Unities of joint estates, 359, 360. 
 
 of parceners, 365. 
 Universities, 189, 427. 
 
 courts of, 49. 
 Unlawful assemblies, 913. 
 Unwritten law, 50-60. 
 Upper bench, court of, 730. 
 Usages of trade, 42, n. 
 Use and occupation, action for, 327, 
 
 note. 
 User, 193, n. 
 Uses, 320, 426, 470-478. 
 
 origin of, 426, 470, 471. 
 
 covenant to stand seised to, 478. 
 
 devise of, 471, 475. 
 
 requisites of valid use, 472. 
 
 revocation of, 476-480. 
 
 springing, shifting and resulting uses, 
 443, n-. 475. 476. 
 
 superstitious uses, 426, 427, 822. 
 
 charitable uses. (See Charitable 
 Uses.) 
 
 statute of, 320, 473. 
 
 conveyances under statute of uses, 
 478-480. 
 Usura maritima, 567. 
 
1 146 
 
 INDEX. 
 
 [The numbers refer to the top paging!\ 
 
 Usury, 564-566, 572. 
 
 offence of, 920. 
 Usus fructus, 470. 
 Uttering forged writings, 979. 
 
 Vacations of court, 757. 
 Vadium mortuum, 337. 
 Vadium mvwn.^'i'j. 
 Vagrancy, 103, n. , 992. 
 
 how triable, 74, n. 
 Valuable consideration, 444, 550, 551. 
 Vassal, 249, 250. 
 Vendor and vendee. (See Sale.) 
 
 their right to fixtures, 225, n. 
 Venire facias, writ of, 787, 788, 789, 
 
 1012. 
 Venue, 769. 
 
 when changed, 769. 
 
 in criminal cases, 1006, 1007. 
 Verderor, 94, 95. 
 Verdict, 801, 802, 839, 1030. 
 
 privy, 802, 1030. 
 
 public, 802, 1030. 
 
 special, 802, 1030, 
 
 subject to a special case, 802. 
 
 aider by, 806. 
 Verification in pleading, 778, 780. 
 Vested legacy, 611. 
 
 remainder, 349. 
 Vicarage, induction into, 459. 
 Vice-chancellor, 647, n. 
 Vice-comes, 86. 
 
 Vicinage, common because of, 229. 
 View, 772. 
 Villein, 281-284. 
 
 in gross, 281. 
 
 regardant, 281. 
 
 manumission of, 283. 
 Villein services, 282, 285. 
 Villenage, 256, 279, 281. 
 
 pure, 256, 279-284. 
 
 villein socage, 256, 284. 
 Villenous judgment, 908, 909. 
 Vindicatory part of a law, 22. 
 Violation of .safe-conducts, 881. 
 Visitation of corporations, 199-203, 
 
 641. 
 Visitor of corporations, 199. 
 Visne, 769. 
 Vivum vadium, 337. 
 Void and voidable marriages, 143, 145, 
 
 note. 
 Voir dire, examination upon, 794, 798. 
 Voluntary conveyance. 444. 
 Voluntary escape, 816, 902. 
 Voluntary manslaughter, 939. 
 Voluntary waste, 304, n., 430, 743. 
 Vouchee, in common recoveries, 494, 
 
 772. 
 
 Voucher, 772. 
 
 Voucher, in common recoveries, 494, 772, 
 
 Wager of law, 704, 707, 806. 
 
 Wagering policies, 569. 
 
 Wages of servants, 133. 
 
 Waifs, gi, 235, 420, 524, 532, 752. 
 
 Ward. (See Guardian and Ward.) 
 
 Ward, watch and, 105, 999. 
 
 Wardens of the peace, 98. 
 
 Wards and liveries, court of, 262, 269. 
 
 Wardship. (See Guardian and Ward.) 
 
 Warrant, 76, 996. 
 
 special and general, 998. 
 
 backing of, 998. 
 
 arrests with warrant, 997. 
 
 contents of warrant, 998. 
 
 arrests without warrant, 102, u., 998, 
 999. 
 
 power of justices to issue, 102, n. 
 Warrant of attorney to confess judg- 
 ment, 809. 
 Warranty of title to chattels, 559, 715. 
 
 of quality of chattels, 559, 560. 
 
 of goods sold, 560, 715, 716. 
 differs how from deceit, 716, n. 
 
 of lands, 447. 
 
 lineal and collateral, 299, 449. 
 
 of habitability of premises leased, 
 327, 11. 
 
 covenant of, 451, n. 
 Warren, right of, 236. 
 Waste, 304, 430, 743. 
 
 voluntary, 304, n., 430, 743. 
 
 permissive, 304, n., 430, 743. 
 
 by joint tenant, 361, 745. 
 
 by coparcener, 365. 
 
 by tenant in tail, 299. 
 
 by tenant for years, 327, n., 744. 
 
 by life tenant, 431, 744, 745. 
 
 by executor, 616. 
 
 lease without impeachment of waste, 
 305, n., 431. 
 
 writ or action of, 305, n., 673, 745. 
 
 remedies for, 305, n., 432, 832. 
 
 lord's waste, 280. 
 Watch and ward, keeping, 105, 999. 
 Watchmen, 105. 
 Water, title to, 220. 
 
 easement of, 231, n., 232, n. 
 Watercourses, 220, n. 
 
 navigable and non-navigable, 220,n., 
 416, n. 
 
 nuisance in, 927. 
 
 bounding land by, 221, n. 
 
 easement in, 232, n. 
 Water-ordeal, 1022. 
 Ways, 230, 234. 
 
 created by grant, 233. 
 
INDEX. 
 
 [ The numbtrs re/ir to the top paging.] 
 
 1147 
 
 Ways, created by prescription, 234. 
 
 ways of necessity, 233, n., 234. 
 
 repair of, 233, n. 
 
 nuisance to, 740. 
 Weapons, right to carrying concealed, 
 
 84, n. 
 Weights and measures, false, 923. 
 Weregild, 936. 
 West-Saxon laws, 31. 
 White-rents, 240. 
 Whole blood, 393-396. 
 Wife, 141-159. (See Husband and 
 
 Wife.) 
 Will, estate at, 328. 
 
 tenant's right to emblements, 330. 
 
 will not support a remainder, 347. 
 William the Conqueror, 245, 246, 
 
 401. 
 Wills and testaments, 216, 497, 589- 
 615. 
 
 origin of, 216, 497-499, 589. 
 
 definition of, 599. 
 
 power to make by custom, 272, 275. 
 
 statute of, 499. 
 
 at what age party may make, 180, 
 499. 596. 
 
 by idiots, lunatics, &c , 499, 596. 
 
 by feme-covert, 158, n., 499, 597. 
 
 by husband in wife's favor, 155. 
 
 by persons guilty of crime, 598. 
 
 written and nuncupative, 599. 
 
 inofficious, 161, 602. 
 
 codicil, 599, 
 
 modes of avoiding wills, 601. 
 
 attestation of , 500-502, 601. 
 by legatees or creditors, 502, 
 by executor, 502, n. 
 
 revocation of, 500, 598, 602. 
 
 probate of, 594, 606, 664. 
 
 cancellation by testator, 602. 
 
 construction of, 504, 505. 
 
 jurisdiction over, 664, 665, n., 824, 
 827. 
 
 proof of ancient, 796. 
 
 effect to pass after-acquired property, 
 
 503. 
 executor's powers and duties under 
 
 the will, 605-615. 
 Witnesses, 797. 
 to deeds, 454. 
 to wills, 500-502, 600. 
 two, where necessary, 500, n., 798, 
 
 1026. 
 right of husband and wife to be, for 
 
 or against each other, 157, 925, 
 
 1029, n. 
 when privileged from arrest, 766. 
 who are competent to be, 798. 
 children as, 963. 
 
 Witnesses, oath to, 799. 
 
 summoned by subpoena, 797. 
 
 tender of fees to, 797. 
 
 credibility of, 798. 
 
 contempt of court by, 993. 
 
 examination of, in equity cases, 838 
 
 in criminal cases, 1027. 
 
 number necessary, 798, 1026, 1027. 
 Wittena-gemote, 633. 
 Wounding, 676, 954. 
 Wrecks, coroner's power over, 96. 
 
 property in, 218, 234, 524, 532. 
 
 remedy concerning, 91, 75T, 752. 
 Writ, original, 635, 637, 642, 756. 
 
 judicial, 761. 
 
 de bono et malo, 989. 
 
 de coronatore eligendo, 94. 
 
 decoronatore exonerando, 95. 
 
 de estoveriis habendis, 153. 
 
 de proprietate probanda, 702. 
 
 de rationabili parte bonorum, 592. 
 
 de retorno habendo, 703, 814. 
 
 de ventre inspiciendo, 171, 793. 
 
 of account, 714. 
 
 of ad quod damnum, 425. 
 
 of admeasurement of dower, 317. 
 
 of assize, 723. 
 
 of association, 651. 
 
 of attachment o-c pone, 759. 
 
 of capias. (See Capias.) 
 
 of ca. sa, 814, 815, 
 
 of capias utlagatum, 763. 
 
 of certiorari, 986, 990, 993, 1013. 
 
 of conspiracy, 908. 
 
 of covenant, 489. 
 
 of dedimus potestatem, gg, 100, 490, 
 
 837- 
 of distringas, 760, 789, 79I, 792, 
 
 814, 834 
 of ejectione firma, 728, 729. 
 of elegit, 817. 
 of entry, 722. 
 
 of error, 800, 811, 993, 1039. 
 of escheat, 403. 
 of estrepement. 744, 745. 
 of exigent, 763, 1012. 
 of extent, 819. 
 of false judgment, 811. 
 oi fi. fa., 816. 
 
 of habeas corpora, 789, 791, 792. 
 of habeas corpus. (See Habeas Cor. 
 
 pus.) 
 of habere factas possessionem, 813. 
 of habere facias seisinam, 813. 
 of inquiry, go, n., 810. 
 of latitat, 764. 
 of levari facias, 817, 
 of mandamus, 668, 753. 
 of ne exeat regno, 76, 77, 899. 
 
II48 
 
 INDEX. 
 
 [The numbers refer to the top paging.^ 
 
 Writ, of prcecipe, 489, 723, 759. 
 of prcEcipe quod reddat, 494. 
 of possession, 730. 
 oi procedendo^ loi, 668. 
 of prohibition, 50, 144, 671, 993, 994. 
 of qiiare ejecit infra terminum, 728, 
 
 733 
 of quod permtttat prosternere, 742. 
 of quominus, 639, 764. 
 of quo warranto, 752. 
 of ravishment, 695, 697. 
 of replegiari facias, 701. 
 of restitution, 754. 
 of right, 374, 725. 
 of right of ward, 697. 
 oi scire facias, 641, 751, 814, 816, 819. 
 of seizin, 746. 
 of si noil omnes, 651. 
 of supersedeas, 101, 993. 
 of venire facias, 787, 788, 789, 1013. 
 
 Writ, of waste, 745. 
 Writs, forms of, 723. 
 
 close and patent writs, 486. 
 
 in chancery, 642. 
 
 executed by sheriff, 91, 92. 
 Written conveyances, 445. 
 Written law, 29-50. 
 Written wills, 599. 
 Wrongs, 62. (See Torts.) 
 
 private, 62, 618, 661-746. 
 
 pubhc, 62, 618, 845. (See Crime.) 
 
 Year, defined, 323. 
 Year-books. 38. 
 
 Year to year, estate from, 331. 
 
 Years, estates for, 322-327. 
 
 Landlord and Tenant.) 
 
 origin of, 324. 
 
 ouster from, 728. 
 
 (See 
 
I ^ 
 
 • I -^