(IJnrupU Ham i>rl)nnl IGibrary •^F 387.06r'""'>'vers«y Library ^i?*s about /=«,., Cornell University Library The original of tliis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 881 5286 TALKS ABOUT LAW: A POPULAR STATEMENT OF WHAT OUR LAW IS AND HOW IT IS ADMINISTERED. EDMUND P. DOLE. ^^^^^^M p^^©ii^^^ i D^^^^^K i IpS^Sftfjui BOSTON AND NEW YORK : HOUGHTON, MIFFLIN AND COMPANY. 1887. Copyright, ISST, By EDMUND P. DOLE. Alt rights reserved. The Riverside Tress, Cambridge : Electrotyped and Printed by H, 0. Houghton & Co. To FAENUM FISH LANE, FOR TEN YEARS MX PARTNER, A3 A MARE OF PROFOUND RESPECT AND WARM FRIENDSHIP, 31 ^ebicate tdi^ %aak. EDMUND p. DOLE. PEEFAOE. This little book is not presented to the public under tbe delusive pretence of qualifying every man to be his own lawyer, for a competent knowledge of the most extensive department of learning, that which touches human affairs at every point and upon which all per- sonal and property rights depend, cannot be attained in a few leisure hours. The main object is to give the non-professional reader, in a simple way, some idea of what law is and how it is administered, such general information upon this most interesting and important subject as all intelligent persons are expected to have in regard to other subjects. It is also hoped that it may be useful to law students as a prologue, and that it may be of interest to lawyers themselves. Among more than sixty thousand volumes devoted to English and American law are many excellent works for students, and many books of rules and forms for business men and officials of various kinds, but, so far as I have been able to learn, nothing of the kind at- VI PREFACE. tempted in the following pages has ever been published. With a subject so vast, I have found it no easy matter to make my book a small one. My object has been to make it accurate and readable. EDMUND P. DOLE. Keene, N. H. OOI^TEI^TS. PASS I. Where oub Law comes fbom .... 1 II. COUBTS .... .... 13 m. Lawyers . . .... 22 IV. The BEonfUiNG of a Lawsuit . . .30 V. Pleadings 36 VI. The Beginning of a Criminal Prosecution . 43 VII. Ancient Forms of Trial 51 VIII. Present Forms of Trial 57 IX. Evidbnoe . 64 X. Both Sides of the Jury Question ... 73 XI. Law Teems : How Law grows ... 84 XII. The End of a Lawsuit : Executions and Costs 93 XIII. Punishments ... .... 98 XTV. Benefit of Clergy . . . 106 XV. Marriage 113 XVI. Divorce 129 XVII. The Divorce Question . .... 144 XVm. Husband and Wife 164 XIX. Parent and Child 176 XX. Guardian and Ward 186 XXI. Teacher and Pupil . . . .191 XXII. Pulpit and Pew 205 XXIII. Employer and Employe ... 225 viii CONTENTS. XXIV. MiNOKS 233 XXV. Peksons Non Compos ... .243 XXVI. Public Cokpokations .... 251 XXVII. Private Corporations .... 2*74 XXVIII. Contracts 294 XXIX. Negotiable Paper . . 330 XXX. Partnership ... . 351 XXXI. Agency .356 XXXII. Bailments . 362 XXXIII. Insurance . . . .378 XXXIV. Patents, Copyrights, Trade-Marks . 394 XXXV. Land . . 404 XXXVI. Heiks at Law ... . . 439 XXXVn. Wills ... . . . 441 XXXVIII. Torts ... 449 XXXIX. Treason. . . .... 462 XL. Offences against the Person . . 472 XLI. Opeenobs against Property .... 488 XLII. Equity . . . 502 XLIII. Statute Law . ... 508 Appendix A 517 Appendix B ... 546 Index 547 TALKS ABOUT LAW. CHAPTER I. WHERE OUK LAW COMES FEOM. The most enduring monument of ancient Eome is the broad and noble system of jurisprudence, which; having followed her arms and survived her power, is still the basis of law wherever the Latin race holds sway. ^ Where Rome made permanent conquests she planted colonies and established her language, her literature, her civilization, and her law. Her enemies first be- came subjects, then citizens. From remote provinces, as well as from Italy, arose her men of letters, her lawyers, her statesmen, her generals, her emperors. The greater part of the civilized world, of civilized Europe at least, became essentially Roman. It became essentially Roman ; but, with the lapse of centuries, the old Roman spirit disappeared. Wealth, luxury, corruption, civil wars, military despotism did their work ; and the countrymen, by descent or adop- tion, of Julius Caesar and the Scipios, escaped the ex- treme misery that has often been the lot of the van- quished by the readiness of their submission to their invaders. Of course they suffered greatly ; but the 2 TALKS ABOUT LAW. vindictiveness incident to more stubborn and desper- ate contests and the stern necessity of crushing them into abject and hopeless slavery were alike wanting. They retained a portion at least of their personal and property rights ; they were still the bulk of the com- munity, and they were peculiarly fitted to impress their civilization upon a people just emerging from barbarism. The Teutonic tribes and nations that dismembered the empire and settled and ruled in Italy, Gaul, and Spain were peculiarly fitted to receive such impres- sion. They were far from being savages. For gen- erations they had lived more or less in contact with civilized men. Many of them had been Rome's allies as well as her enemies, had served in her armies, .had received grants of her land. They inherited respect for the Roman power. They were proud of Roman titles, and^when they had invaded and conquered a portion of Roman territory, they were frequently anx- ious to rule it with a show of legality by accepting commissions from, and rendering nominal allegiance to, a government too feeble to punish or restrain them, but able to invest them with the halo of a mighty name. They obscured, but they did not utterly ex- tinguish, the light of ancient civilization. They ap- preciated many of its advantages. They promptly renounced their heathen deities and accepted Chris- tianity, — a most remarkable concession to the superior enlightenment of a subjugated people. In a word, they assimilated themselves to the conquered more than the conquered were assimilated to them. As a consequence, the legal systems of modern It- aly, France, and Spain, and of states of French and Spanish origin, are based upon the principles of Ro- WHERE OUR LAW COMES FROM. 3 man law in the same way that their languages are based upon the Latin tongue. Greatly modified by time and supplemented by legislation, they are fusions of Roman law with the laws, manners, and customs of the races that successively invaded their territory and effected settlements. Britain was one of the last conquered and soonest abandoned of the £.oman provinces. Its ancient in- habitants were never thoroughly Romanized, — were never assimilated with their conquerors as were the inhabitants of Gaul and Spain. When the legions withdrew and they were left to themselves, although they bewailed the departure of their masters and de- fenders and for a time maintained Roman forms of government, outside the towns at least their speech and their manners were essentially British, and they were a semi-barbarous people. Had they been able, as an independent nation, to preserve and develop such civilization as they possessed, they would natu- rally have adopted the Roman law ; or, had they been as civilized as their Gallic neighbors, they might, like them, have imposed their system of law upon a race of conquerors less savage than the Anglo-Saxons of that time. In either case, what is known as English Common Law would have had no existence, and our system of jurisprudence would correspond more nearly to those of France, Spain, Italy, and French and Spanish America, Unlike the invaders of Southwestern Europe, the Angles, Saxons, and Jutes who invaded Britain were barbarians without tincture of civilization, from re- gions where everything pertaining to it was then un- known, and, with the instinct of savages, they sought to destroy wb^'t they coulcj not understand. For this 4 TALKS ABOUT LAW. reason perhaps, as much for any other, they were met by a desperate resistance, and, as they were separated by the sea from their countrymen, ground once lost was not easily regained, and retreat, when hard pressed, was a difficult and dangerous matter. Little by little they won their way, fighting for every inch of terri, tory, and when the long contest was over and they were masters of the greater part of what is now Eng- land, the Britons had been driven to the Welsh moun- tains and beyond the seas, had been exterminated, en- slaved, absorbed. As a people, they had ceased to be, and with them had disappeared nearly all traces of Roman civilization. In about one hundred and fifty years from their first settlements in the island the conquerors adopted the religion of Eome, and, fairly beginning progress towards civilization, naturally introduced and mingled with their usages and customs many principles of Ro- man law. Having become a Christian and partially civilized people, they, in turn, were invaded by hordes of sav- age pagans, Northmen from the coasts of Denmark and Scandinavia. Terrible battles ensued. Finally, such of the Northmen as were not killed or driven away embraced Christianity and mingled their blood with that of the Anglo-Saxon race, the residt being a new infusion of barbarian laws and customs. The tendency of modern research is to prove that the Saxon, Danish, and Scandinavian customs which formed the basis of early English law were supple- mented to a much greater extent than was formerly supposed by the introduction of Roman law. They also underwent many changes from the growth of civ- ilization and the legislative acts and judicial decisions WHEEE OUR LAW COMES FROM. 5 of the witenagemot, or national council. During this period, especially during the reigns of Alfred and his son, Edward the Elder, great progress was made, so that, at the time of the Norman Conquest, A. D. 1066, Saxon England had regularly constituted courts and an established legal system, crude indeed, but marked by sturdy independence, and, in some respects, by good common sense. The Normans were a race of lawyers as well as sol- diers, as litigious as they were warlike. They de- lighted in legal forms, in nice technicalities, in subtle distinctions, and were seldom without a pretext for the wrongs which they committed. Originally North- men from Scandinavia, their manners and customs had been greatly changed by their long residence in Erance. In the main they had adopted French law, largely based upon the civil law of Rome, and had grafted upon it to the fullest extent the growing doc- trines of the feudal system. Their conquest of Eng- land is one of the most important epochs in our legal history. The Saxon language was banished from the courts and Norman-French took its place. Saxon laws and customs fell into disuse and were superseded by those imposed by the Normans. Penal laws became much more severe ; civil proceedings much more ex- pensive ; and complicated and technical rules in re- gard to land were established, many of which, although " founded upon feudal policy, are stiU law in England and in the United States. In the course of a few centuries the hatred between Saxon and Norman died out, the races gradually amalgamated, a new language, the English, arose, Law-Latin and English took the place of Norman- French in legal proceedings, and the law of Saxon 6 TALKS ABOUT LAW. England was in great part revived and blended with that of the Normans. When the dark ages began to brighten and learn- ing began to revive in Europe, the clergy, educated for the most part on the Continent, made strenuous efforts to introduce the Koman or civil law into Eng- land, not as a modifying influence merely, but as a system. The nobility and the laity in general opposed it, and a long and bitter contest ensued. Neither party gained a complete victory ; but, upon the whole, the clergy were defeated. In great measure the ad- ministration of the law passed from their hands to a distinct profession, and the interests of that profes- sion and the prejudices of the nation had a powerful tendency to keep unchanged by the civil law " the laws of England which had hitherto been used and approved." One of the most marked features of our legal sys- tem is the great prominence given to land and to all rights pertaining to land. In feudal times the pre- cious metals were scarce, trade and manufactures were in their infancy, negotiable paper, stocks and bonds were almost unknown, and real estate constituted nearly all the wealth of the kingdom. It was also the foundation of titles of nobility, of social position, of political power, and out of it arose most of the rights and obligations that became subjects of litigation. Under the civil or Roman law little distinction was made between real and personal property ; under our law the slightest transaction relating to the one was invested with a dignity and importance such as no transaction relating to the other possessed. In regard to personal property our law was quite meagre and comparatively simple ; in regard to real estate it be- WHERE OUR LAW COMES FROM. 7 came one of the most complex, technical, and abstruse branches of human learning, and, in a measure, it continues so to the present time. In the eighteenth century, however, the chief ground of prejudice against the civU or Eoman law — jeal- ousy of foreign influence — had ceased to exist ; per- sonal property and commercial affairs had acquired an importance that could no longer be held subordinate to entails, titles, and landed interests ; and the deci- sions of Lord Mansfield and other enlightened judges greatly enlarged the boundaries of the law in this re- spect by new applications of old principles, and still more by drawing freely from whatever was deemed best and wisest in the civil law and in other systems. In fact, Lord Mansfield in particular assumed almost • legislative powers for the court of which he was chief justice during a period of thirty-two years, and did not hesitate to stretch its authority to the utmost to adapt the law to a spirit of commercial and business enterprise. Seldom has the judicial right to make as well as declare law been more openly avowed than it was by him ; never has it been more wisely or more conscientiously exercised. When he was appointed Chief Justice of England, English mercantile law was fit only for a feudal and semi-barbarous state ; when he retired from the bench, full of years and honors, it was substantially what it is at the present time, a code . worthy of a great commercial nation. The great bulk and body of our law — the portion al- ready referred to — is known as common or unwritten law. By unwritten law is not meant oral law merely, for its learning lines the shelves of vast libraries ; but law that has binding authority from ancient usage rather than from written statutes enacted by legisla- 8 TALKS ABOUT LAW. tive assemblies. It "derives its force from the uni- versal consent and immemorial practice of the people." Its foundations are precedent, reason, and public pol- icy. It is found in reported decisions and in text- books of established authority. It is a fusion of the law, written and unwritten, of many ages and of many races of men. Some of its principles can be traced through Roman and Grecian channels back to the ekrliest history of civilized man ; many of them were derived from the German forests and the coasts of Scandinavia, and are but a development of the cus- toms described by Caesar and Tacitus ; more origi- nated in Normandy, and afterwards in England, in the reigns immediately succeeding the Norman Conquest ; • others are founded upon ancient statutes, the records of which have been lost ; and still others are of a later date and a far different character. " Based on Saxon customs, moulded by Norman lawyers, and jealous of foreign systems, it is as mixed as our language and as truly national." To a great extent, therefore, common law is com- mon custom, which has become so fixed and so imi- versal that courts recognize and enforce it as a rule of conduct. A few illustrations may be in point. When the barbarian chief had developed into a feudal baron, he must needs have a seal with a pecul- iar device, not only as a convenient substitute for a signature in times when few except the clergy could write, but also as an emblem of his rank, power, and authority. "When he granted rights to a vassal city or did some other legal act of extraordinary importance, he impressed his seal upon a piece of wax affixed to the parchment, and by so doing he declared it to be his irrevocable charter or deed. Thus the king, in WHEEE OUR LAW COMES FROM. 9 imitation of imperial Cassar, the feudal noble, in imi- tation of the king, the private subject, in imitation of the feudal noble, each had his seal, and the sealing of an instrument — now the mere affixing of a wafer, in some states a mere scroll — came to be, and still is, regarded as a finality, as the most solemn confirma- tion possible. When commercial paper came into use and our English ancestors began to give notes and bills of ex- change, they often found it impossible to make pay- ments on the very days when they fell due. Banking facilities, means of communication, of travel, of send- ing money from place to place, were not what they are now. Delays which would now be extraordinary were then common, and the richest merchant of Lon- don was liable at any time to find that something had occurred to interfere with prompt payment. It was for the interest of those in business to make the best of the inevitable, and it finally became a settled cus- tom to give three days of grace. In process of time courts recognized this custom as law. With the prompter methods of modern times, paper again be- came payable on a precise day ; but the form of grace remained, without the reality, so that now the words, " Three months from date," mean three months and three days, no more and no less. A machine is operated in a given way or has a certain defect, in consequence of which some one is injured. A suit is brought and the jury say that the owner was negligent. Other accidents occur under like circumstances, and other suits are brought with similar results. In process of time courts hold as a matter of law that the given facts under the given cir- cumstances amount to an actionable wrong. 10 TALKS ABOUT LAW. The above examples illustrate how law, to a great extent, comes from custom, how custom ripens into law. In some cases, a custom long established and well known in a single city may be recognized as law there, although it is not law in other parts of the same state. These are called particular customs, and there are a number of them in England that are very an- cient and curious. Under our system of jurisprudence, almost every human right, and almost every means of enforcing or of protecting it, is more or less governed by law de- rived from custom. If we examine decisions made five or six hundred years ago, we shall find that some of them were based upon customs then so old that no man knew when or how they originated, "and the precedents of the Middle Ages are stiU valid prece- dents, and are still cited on the gravest occasions." On the other hand, some customs unknown a few dec- ades ago have already become settled law, for new cus- toms are always arising, and law is always growing and always changing. This process was never before so rapid as now, for all new inventions, discoveries, man- ufactures, arts, industries, and methods of transacting business, all things that affect the relations and indus- tries of men, caU for new applications of precedent, for expansions of principle, and in this way law grows and changes and adapts itself to advancing civiliza- tion, to the spirit and necessities of the age, as the bark of an ancient and still growing tree adapts itself to the fibres within. To ancient statutes, obsolete and forgotten as such, and to the customs of communities, should be added another chief source of common law, and that is cus- toms established by courts themselves, and rules which WHERE OUR LAW COMES FROM. 11 they make and enforce as law. " The history of common-law procedure," says Chief Justice Doe, " is a history of precedents, suggested, invented, or sanc- tioned by the court because the court regarded them as convenient in fact ; altered and improved because the court regarded their improvement as convenient in fact ; or laid aside and abandoned because experi- ence, or changed conditions of property, business, and society, called for new ones more convenient in fact than the old." The origin and growth of common law will be dis- cussed more fully in the chapter entitled, Law Terms : How Law Grows. Side by side with the common law, but widely differing from it and administered by different tribu- nals, grew up a system known as equity. In imitation of the Roman emperors, the early kings of England, as far back as the time of AKred, had an officer known as the Chancellor. In the course of ages he became, and stiU is, one of the greatest personages in the kingdom. The presiding officer of the House of Lords, a cabinet minister and a privy councillor, he takes precedence of all subjects except the Archbishop of Canterbury and members of the royal family. Be- sides being a great minister of state, he is the head of the law, and presides over the extensive department known as equity or chancery. In early times the king was frequently petitioned for redress of griev- ances, for enforcement of rights, for protection in cases to which the narrow and technical rules of the common law did not apply, and the hearing and de- termining of such petitions gradually became the province of the Lord Chancellor. For centuries the chancellors were not lawyers by education, but were 12 TALKS ABOUT LAW. taken almost exclusively from among the great digni- taries of the church, who naturally turned to the Ro- man, rather than to the common law for rules upon which to base their decisions, and, as eqiuty gradually became a science, following fixed rules and precedents instead of the caprice, the interest, or the conscience of the Chancellor, it became more and more a revival of Roman law. Thus it came to pass that England pre- sented the anomaly of two sets of courts acting upon different principles and recognizing and enforcing contrary rules. The English colonists brought with them the com- mon law and equity systems of the mother country, as well as her language, and, so far as they are appli- cable to our political institutions and to the somewhat different circumstances in which we are placed, they are in force here and form the bulk of our law. In addition to common law and equity, we have in this country written Constitutions, state and national, paramount to all other forms of law, containing the principles upon which the government is founded, regelating the divisions of the sovereign powers, di- recting to what persons each of these powers is' to be confided, and the manner in which it is to be exer- cised. Lastly, our Congress and our state legislatures are constantly engaged in making statute law, which will be referred to from time to time and to which the closing chapter of this book will be devoted. CHAPTER II. COUBTS. " A COURT is a place where justice is judicially ad- ministered." Courts vary in power and authority, from those of justices of the peace, haying jurisdiction only in the most petty cases, to the English House of Lords and the Supreme Court of the- United States. They may be divided into courts of common law ; courts of equi- ty ; courts of admiralty, which have jurisdiction over matters arising on the high seas ; ecclesiastical courts, which in England had extensive functions until 1871, but which have never existed in this country ; probate or surrogate courts, which have authority over execu- tors, administrators, guardians, minors, insane persons, and spendthrifts ; courts-martial for the trial of mil- itary offences ; and other courts established for special purposes. Courts of common law may be constituted exclu- sively for the trial of causes, or for the decision of questions of law ; for civil or for criminal business ; or these several departments may be, and often are, com- bined in the same court. They have the same power to interpret and enforce statutes that they have to in- terpret and enforce the common law, and, as was seen in the preceding chapter, they frequently have equity powers also. Strictly speaking, nearly all courts, ex- 14 TALKS ABOUT LAW. cept courts-martial and courts of equity, may be called courts of common law ; for the common law is the foundation of our legal system, and if a court were established having jurisdiction only over rights and liabilities created by statute, such rights and liabilities would be determined and enforced, and such statutes would be interpreted, by the rules of the common law. It is customary, however, to speak of courts designed for the general administration of justice as courts of common law, while courts having only special and limited functions generally have an appropriate and distinctive name. Thus the Supreme Court of New Hampshire would ordinarily be spoken of as a court of common law and equity ; but, as it is the supreme court of the state, having final jurisdiction over all inferior courts, probate courts included, it would be correct, though unusual, to speak of it as the supreme court of probate. Courts are also divided into those of record and those not of record. The former are those whose acts, proceedings, and decrees are enrolled for an authentic and a perpetual memorial, and they include all except the most inferior tribunals. The Constitution of the United States provides that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state ; " and such records, when not impeached for imposition or fraud, are not only conclusive evidence throughout this country by constitutional law, but, by interna- tional courtesy, are received as prirndfade evidence in the courts of other countries, and, in like manner, the records of foreign courts are received here. It would take too much space to give a general sketch of the various modern courts in this aod in the COURTS. 15 mother country, and tlie ancient English courts from which they are all directly or indirectly derived. Courts of similar grades are very much alike in the several states and in both countries. The Supreme Court of the United States, however, with its wide ju- risdiction and extraordinary powers, cannot be passed vnthout a few words. The provisions of the Consti- tution are as follows : Article III., sect. 1. " The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges of the supreme and inferior courts shall hold their office during good behavior, and shall, at stated times, receive for their services a com- pensation which shall not be diminished during their continuance in office." Sect. 2. " The judicial power shall extend to aU cases in law and eqidty arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more states; between a state and a citizen of another state (changed by the 11th Amend- ment) ; between citizens of different states ; between citizens of the same state claiming land under grants of different states ; and between a state, or a citizen thereof, and foreign states, citizens, or subjects." "In aU cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court shall have original juris- diction. In all the other cases before mentioned, the the supreme court shall have appellate jurisdiction. 16 TALKS ABOUT LAW. both as to law and fact, with such exceptions and un- der such regulations as the Congress shall make." Amendment XI. " The judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of an- other state, or by citizens or subjects of any foreign state." Although justices of the Supreme Court of the United States do not occupy as conspicuous positions in the eyes of the people as do the leaders of great political parties, their real powers and responsibilities, considering their assured tenure of office, are scarcely inferior to those of our President or of the Queen of Great Britain. Before them great states appear as plaintiffs or defendants, and by their decrees their rights are finally determined ; they are the expound- ers of the supreme law of the land, and have power to declare acts of Congress and treaties with foreign na- tions null and void. This court, at the present time, consists of nine judges, who hold law terms at Washington, and, at stated periods or in important cases, together with the circuit judges, trial terms in the several judicial cir- cuits. The circuits are subdivided into districts, over each of which a district judge presides. There is no legal bar (unless custom has established one) to the trial of jury cases before the Supreme Court at Wash- ington, but the practice was never general and has long been obsolete. Causes, whether large or small, to which states, foreign nations, or foreign ambassadors, ministers, or consuls are parties must originate in the Supreme Court ; most causes, however, which are within the jurisdiction of United States tribunals, are COURTS. 17 begun in the inferior courts, but, if the amount in con- troversy exceeds 15,000, they may be carried by ap- peal to the court of last resort, and, in fact, such ap- pealed causes constitute the bidk of its business. This sum was fixed upon when f 5,000 represented a much greater value than now, and when causes were far less numerous ; and as the court, with the growth of the country, becomes more and more overburdened with business, and as a greater number of judges would only render it unwieldy without corresponding advan- tage, it has been strongly urged that the jurisdiction of the inferior courts should be increased. The Su- preme Court of the United States still retains some- thing — more perhaps than any other court in this country — of the state that was formerly everywhere considered essential to the dignity of courts : for ex- ample, the judges wear black sUk gowns, and counsel are required to appear before them in full suits of black. Although a court is defined as " a place where jus- tice is judicially administered," the word is not limited to place, for the judges, being the presiding officers, are also termed " the court." Thus, in this country, it is customary to say, " May it please the Court," or, " If your Honors please ; " in England, " May it please the Court," or, " If your Lordships please.^' Although the latter term is commonly applied to judges of the higher English courts, it by no means follows that they are peers. Even the Lord High Chancellor of England, who presides over the House of Lords, is not necessarily, and in fact has not been in every instance, a peer ; and quite frequently the Chief Justice of the King or Queen's Bench has not been a man of noble rank. This title by courtesy or usage does not extend 2 18 TALKS ABOUT LAW. beyond the court-room ; elsewhere, an English judge is addressed as Mr., if he is an untitled gentleman ; Sir, if he is a knight or baronet ; Lord, if he is a titular lord or a peer. Judges of the higher courts are usually precluded, either by custom or by statute, from the practice of law. They cannot properly sit in any cause in which they have acted as counsel, in which they have a pe- cuniary interest, or in which they are related to any of the parties. A great part of the duty of a judge is to decide doubtful questions, questions upon which even the ablest and soundest lawyers may well differ, and no man qualified to hold judicial office could be induced to accept it if he were to be held personally responsible for errors of judgment. The respect of a learned profession, the enduring fame which is the chief reward of a great judge, and the consciousness that every error is liable to be taken advantage of by watchful counsel and carried before the full bench of his own or a higher tribunal for revision, to say noth- ing- of a sense of duty, are sufficient inducements to faithfulness and impartiality. In England and in most of the states of the Union judges are appointed, and hold office during life or vmtil they attain a certain age, generally seventy years. In a few states they are elected by the legislature; and in others they are elected by the people. Thinking men believe that nothing can have a stronger tendency than popular elections to degrade the character and destroy the usefulness of the bench. Politicians control nominations and select candidates for the very reasons that ought to insure their rejec- tion ; and judges elected by popular vote are liable to be, or — which is nearly as bad — are liable to be con- COURTS. 19 sidered, the servants of their party, rather than the ministers of the law. Free government and absolute power are always and everywhere incompatible, — whether the absolute power is that of a monarch, an hereditary aristocracy, or a political party. Impartial and independent courts, secure in their tenure of of- fice, holding parties, legislatures, governors, Congress, and president within the bounds of their constitutional powers, are the only legal protection for minorities in this country. The judiciary was designed to be a check upon the political departments of the govern- ment, the one place above all others where partisan- ship should be strictly excluded, where aU passions should be hushed, all prejudices laid aside, and polit- ical, as well as other rights, decided upon the law and the evidence. Appointments, on the other hand, are not as liable to be made for political reasons. They are usually made in accordance with the wishes of the legal pro- fession, the class of men best fitted to judge of their propriety, and a class by training and education ex- tremely jealous of the honor of their order, and among whom a distinguished place can be won and main- tained only by character, ability, learning, and indus- try. It is therefore comparatively rare that incom- petent men are appointed to the bench, and when found to be so, the dissatisfaction of the profession usually causes them to resign. The fact that judicial honors have so generally been bestowed in recognition of high character and professional standing, rather than for political reasons, accounts for the estimation in which they are held, notwithstanding the small salaries usually attached to them in this country. The powers and duties of judges will be spoken of further as the subject may naturally occur. 20 TALKS ABOUT LAW. Lawyers will be spoken of in the following chapter. Clerks and sheriffs are officers of courts, concerning whom a few words may be in place here. It is the duty of a clerk to keep the records of his court, administer oaths, tax costs, receive moneys, and perform much of the ordinary routine business. The office affords no opportunity for distinction, and con- sequently is not often sought by ambitious men ; but, especially before the law reforms of the last fifty years, it was very attractive to one desiring a perma- nent position and a fat income. The emoluments of the clerk of the Court of Queen's Bench have some- times exceeded $60,000 a year, and in 1882 those of the clerk of the Supreme Court of the United States were nearly f 30,000, almost three times the salary of the chief justice. Rules of court and legislative acts, however, are making great changes in this respect, and the prospect is that in the near future few clerk- ships will be overpaid. The office of sheriff is of great antiquity, being one of the few that can clearly be traced back to Anglo- Saxon times. It was formerly elective ; but for more than five centuries and a half it has been held in England by appointment from the crown, and in many if not in most of the United States it is stUl held by appointment from the governor and council. In Eng- land sheriffs are usually wealthy and influential mem- bers of the landed aristocracy ; the office is not paid, and is still considered a high honor, the sheriff be- ing ex officio the first man in his county and taking precedence even of noblemen. Of course gentlemen of such rank and figure are not expected to serve writs and the like. These duties are performed by deputies, known as baUiffs, who correspond to our COURTS. 21 deputy sheriffs, and who receiyp fees for their ser- vices. They also have what are known there as dep- uty sheriffs, who do not correspond to our deputies, but are generally attorneys, and take charge of the legal business connected with the position. The du- ties, if not the honors, of sheriffs in this country are substantially the same as in England, except in regard to elections and the summoning of peers to the House of Lords. They open and close court, enforce order therein, have charge of county jails, and by them- selves or their deputies have charge of juries, and the service of writs, warrants, and other mandatory pre- cepts. A sheriff is a ministerial, not a judicial officer. It is not his province to decide, but to obey. It fol- lows, therefore, that if the papers he is called upon to serve are legal upon their face, they protect him ; if void upon their face, they afford him no protection, even though he acts in the utmost good faith. His prudent course, in doubtful cases, is to require a bond of indemnity. A sheriff is liable for the official acts of his deputies in the same manner and to the same extent that he is liable for his own acts, and as the law requires him to give bonds, he, of course, exacts bonds from them. He cannot, as an officer, serve papers outside of the county in which he has jurisdic- tion ; but he necessarily has power to control persons under arrest while conveying them from place to place. United States marshals correspond to sheriffs in the several states and in England, their powers and duties being substantially the same. CHAPTER m. LAWTEES. Ant male citizen (in a few states, any female citi- zen also) of full age and good moral character, who has pursued the prescribed course or term of legal study and has passed satisfactory examinations, may be admitted as a member of the bar, upon paying the fees and taking the oaths required. The requirements vary greatly in the different states : in some they are quite lax ; in others an extended and thorough course of study is insisted upon. In New Hampshire, at the present time, every candidate, whether a college grad- uate or not, must pursue a three years' course of legal study before he can be examined. He is then sub- jected to a searching examination by the full bench at the law term of the supreme court. The judges are vigilant to protect the public, not only against incom- petent professional advisers, but also against dishon- est ones, and if there is any reason to suspect the can- didate of questionable practices, his character is fully inquired into. On admission to the bar the candidate becomes an officer of the court, with many privileges and with extensive powers. He represents, and to a great extent stands in the place of his client. The re- lation of lawyer and client is one of trust, and the former is bound, not only by the rules of common honesty as between man and man, but also by his oath LAWYERS. 23 of office, his professional honor, and the confidential capacity in which he acts, to the utmost fairness and good faith ; and if he is detected in an abuse of his trust, such as imposition or fraud upon the court, his clients, or others, he is liable to be fined, suspended, or expelled from the bar. In a recent case (58 N. H. 5), it was held that an attorney may be removed from office for wrongfully appropriating to his own use the money of others received by him in a business not connected with the practice of his profession. In de- livering the opinion of the court, Chief Justice Doe said : " He intended to restore it, and was guilty of much less than the usual amount of falsehood and fraudulent artifice. He and his wife and family did what they could to make good the loss to the town, but with only partial success. The temptation to which yielded is one to which he would be con- stantly exposed in the practice of his profession. An attorney is a public officer. Admission to and expul- sion from his office are regulated by law. He takes an official oath. The public is entitled to ample pro- tection against the danger of any abuse of the great powers of the office which the public by its agents has conferred upon him." In delivering a similar judgment, Lord Mansfield said : " The question is whether, after the conduct of this man, it is proper that he should continue a member of a profession which should be free from all suspicion. He is an unfit person to practise as an attorney. It is not by way of punishment ; but the court on such cases exer- cise their discretion, whether a man, whom they have formerly admitted, is a proper person to be continued on the roll or not." There seems to be no way in which matters in con- 24 TALKS ABOUT LAW. troversy can be fully presented to a court or a jury, except by counsel, whose office it is to elicit all the facts that may be favorable to their respective sides, and to furnish such arguments as the law and the evi- dence may warrant ; and as an impartial hearing on both sides is indispensable to the administration of justice, and as there can be no security for Ufe, lib- erty, or property, if any one, even the most wicked, can be deprived of them without due process of law, it follows that it is a lawyer's right, and sometimes both his moral and legal duty, to defend, to the ex- tent hereinafter stated, persons accused of crime, even though he knows them to be gnUty. This duty does not depend solely upon the ability to pay for such services. It is considered as a duty which he owes, not especially to the accused, but rather to the public, in return for the powers and privileges of his office, and the court by whom he is appointed for that pur- pose will not permit him to shirk it, even though it may cost him much time and labor without any com- pensation therefor. In some states this rule of the common law is modified by statutes, providing, in cer- tain cases, for the payment or partial payment, from the public treasury, of counsel appointed to defend those who are too poor to pay for such services. " In the performance of this duty," says a cele- brated legal scholar and author, "he should enlist heart and soul in the cause ; and if public opinion runs strong and fierce against his client, he must suf- fer himself to be mocked and jeered of every one rather than allow to be sacrificed the interests of one who has confided reputation, liberty, perhaps life, to his protection. The calm future must be trusted to set him right, and, if he never quails before the LAWYERS. 25 clamor, the trust will not be disappointed." When Thomas (afterwards Lord) Erskine was in the very zenith of his early fame, he was called upon to defend Thomas Paine, then the most unpopular man in Eng- land, Nothing that the patronage of the government or the favor of the people could bestow seemed be- yond his reach. By undertaking the defence of Paiae, whose principles he detested and did not attempt to justify, his prospects seemed ruined: he was dismissed with insult from the high office which he held, and the popular adoration was, for the time being, changed to popular hatred ; but neither the love of popularity, the desire of preferment, the prospect of ruin staring him in the face, nor even his own loathing of the principles of his client, caused him to swerve in the slightest degree from the line of his duty ; and the consciousness of duty well done, the sober second thought of the English people, the honors that were afterwards heaped thick and fast upon him, and the ad- miration of the world were his ample reward. " Every man within hearing at this moment," said he, " nay, the whole people of England, have been witnesses to the clamor that, by every art, has been raised and kept up against me : in every place where business or pleasure collects the public together, day after day, my name and character have been the topics of inju- rious reflection. And for what ? Only for not hav- ing shrunk from the discharge of a duty which no personal advantage recommended, and which a thou- sand difficulties repelled. But, gentlemen, I have no complaint to make, either against the printers of these libels, nor even against their authors, — the greater part of them, hurried away perhaps by honest preju- dices, may have believed that they were serving their 26 TALKS ABOUT LAW. country by rendering me the object of its suspicion and contempt; and if there have been amongst them others who have mixed in it from personal malice and unkindness, I thank God I can forgive them also. Little indeed did they know me who thought that such calumnies would influence my conduct. I will forever, at all hazards, assert the dignity, indepen- dence, and integrity of the English bar, without which impartial justice, the most valuable part of the Eng- lish constitution, can have no existence." Lord Brougham, in his masterly defence of Queen Caroline, went much further than this, and much fur- ther than can be justified by any sound code of morals. " An advocate," said he, " by the sacred duty which he owes to his client, knows, in the dis- charge of that duty, but one person in the world, that client and none other. To save that client by all ex- pedient means, to protect that client at all hazards and costs to all others, and among others to himself, is the highest and most unquestioned of his duties. . . . The first great quality of an advocate is to reckon everything subordinate to the interests of his client." Such a rule as this would justify perjury ; it would justify the defending of a guilty man by fixing his crime upon an innocent one. To the credit of Lord Brougham it should be said that he was utterly incapable of such an application of his own rule. In defending a criminal a lawyer is a minister of justice, not a defender of crime ; and when he has done his utmost to secure to his client all the rights that the law may give him, and has urged all that can fairly and honorably be urged in his behalf consistently with the law and the evidence, his duty is at an end. There cannot be one code of morals for lawyers and LAWYERS. 27 an inconsistent code for other people ; neither can one be justified in doing as a lawyer what it is wrong for him to do as a man. Men famous in the profession have generally been of high character and spotless integrity, and, instead of being an impediment, as some suppose, these qual- ities are almost indispensable to a distinguished posi- tion and great success at the bar. Cunning is char- acteristic of folly rather than of wisdom, of weakness rather than of strength ; and a reputation for sharp practices is fatal to an advocate's weight and influence in court. The ideal lawyer, like the ideal soldier, is " without fear and without reproach." Speaking of his friend, Archdeacon Paley, Lord EUenborough said : " Paley formed my character, and I consider that I owe my success in life more to my character than to any natural talents I may possess." While the purest and ablest men in the profession are frequently engaged in capital and other important criminal trials, they rarely, in this country at least, devote themselves mainly to the defence of criminal causes, except perhaps in the beginning of their ca- reers, — partly because civil business is more lucra- tive, and affords a field for higher attainments and greater abilities ; partly, no doubt, because a criminal practice brings one into unpleasant contact with the degraded and vicious, and strongly tempts to unscru- pulous methods. Generally speaking, there are no artificial distinc- tions of rank and pifeoedence among lawyers in this country; the same person is both an attorney and a counsellor. In England lawyers are either attor- neys and solicitors or counsel. The former are much the more numerous class, as they do general office 28 TALKS ABOUT LAW. work, such as collecting bills, drawing conveyances, wills, settlements, writs, and the like, prepare causes for trial, and give office counsel. They are, however, considered an inferior branch of the profession, and have no audience in the higher courts. It is the special department of counsel to try causes, and as such duties are chiefly performed in public, and fur- nish the best opportunities for winning reputation, and as judges and the legal advisers of the crown are taken only from the ranks of counsel, it is but natural that they shoidd be held in greater estimation than at tomeys and solicitors. The American system, under which aU. kinds of legal business are done by the same person, seems to be much better for both lawyers and clients : for the latter, because it is a great saving of trouble and expense ; for the former, because English solicitors of ability cannot rise to the highest rank in the profession without abandoning an established practice and starting anew, and because counsel, being practically compelled to do the highest class of work or none, find it exceedingly difficult to get a start, and many, more ambitious than wise or fortunate, are forced to eat their hearts away as briefless barristers. English counsel are not usually employed directly by litigating parties, but by their attorneys or solicitors. The solicitor makes up a statement of all the facts, together with the names of the witnesses, and what each is expected to testify to. This is called the " brief," and is a very different thing from what is usually known as a brief in this country, as will ap- pear in a later chapter. The solicitor then takes the advice of counsel and retains them to try the cause, giving to each a brief, with the amount of his re- tainer marked thereon. Formerly counsel were either LAWYERS. 29 sergeants or barristers. The degree of sergeant was considered a high honor, to be conferred only on coun- sel of high standing and eminent ability. The practice of conferring this honorary degree has been given up, and the famous Sergeant BaUantine is the only living English lawyer, not a judge, who now bears it.^ Coun- sel of eminence are still made Queen's counsel. Queen's counsel are not officers of the crown, as the name would seem to indicate, and the distinction, like that of sergeant, is merely honorary. They wear silk instead of " stuff " gowns ; and it is not considered in keeping with their dignity to appear in any trial except in a leading capacity. Counsel of all grades wear wigs as weU as gowns, and the court costumes of the judges are very elaborate. ^ Sergeant BaUantine Has died since the above was written. CHAPTER IV. THE BEGINNING OP A LAWSUIT. As has been remarked, there are two great systems of jurisprudence which, between them, govern the legal relations of the civilized, or at least of the Chris- tian world, — the civil or Roman law and the Eng- lish common law. While the term, civil law, is thus used as it was used in the first chapter, to designate one of the rival systems, it is also used in another sense, being frequently applied to that portion of the coinmon law which does not relate to criminal mat- ters, and in the latter sense it is customary to speak of civil law, civil suits, and civil courts, as distinguished from criminal law, criminal prosecutions, and criminal courts. The first step in a civil suit at common law is the drawing of the writ. A writ is a " mandatory precept, issued by the au- thority, and in the name of the sovereign or the state, for the purpose of compelling the defendant to do something therein mentioned." It is issued under the seal of the court to which it is returnable, properly attested, and directed to the sheriff or other officer qualified to serve it. The term, writ, is applied only to civil as distinguished from criminal processes, and to common law proceedings as distinguished from pro- ceedings in equity. THE BEGINNING OF A LAWSUIT. 31 After the writ is completed, it is placed in the hands of an officer for service. His first act may be the service of a summons, but is ordinarily an attach- ment of the defendant's property or an arrest of his person. Attachment of real estate and immovable personal property is regulated in the several states by local statutes, which usually require a copy of the writ, with the officer's return thereon, to be left with the town clerk, the clerk of the coimty court, or some other designated official. Attachment of movable per- sonal property is made by taking actual possession and control of it, and if the possession is lost the attach- ment ceases. It foUows, therefore, that money, jewelry, and other small articles, however great their value, can- not be attached while on the person of the defendant. For the same reason, no attachment of personal prop- erty in the defendant's house can be made, unless the officer having the writ can gain admittance without breaking the doors, that is, legally speaking, without opening them. As long as a man confines himself and his property within his dwelling and keeps his doors and windows closed, his goods cannot be attached, neither can he be arrested on civil process, for it is an ancient maxim of the common law "that a man's house is his castle." If the officer, however, is ad- mitted volimtarily, or if he finds an outer door or win- dow open, he may enter and may then use necessary force to secure the defendant's goods, even to breaking down inner doors. At common law very little in most cases was ex- empt from attachment and execution, provided the sheriff could gain possession and control of it, and sick and unfortunate debtors were liable to have the 32 TALKS ABOUT LAW. common necessaries of life taken to satisfy exacting creditors ; but the rigor of the common law in this respect has been greatly modified by statute, so that now in England and in the English provinces most of the necessaries of life, and in some of the United States many of the 'luxuries of life, are exempted. There are but three states in the Union in which such exemptions may not aggregate over 11,000. Statutes of this character, originating in humanity to unfortu- nate and needy debtors, have been carried to so great an extent in some of the states and territories as to render the collection of debts in many cases almost im- possible and to subject the law-makers themselves to the charge of bidding for a dishonest debtor popula- lation. Arizona exempts a homestead of the value of f 5,000, and personal property of all kinds necessary for the use of the family or business. California, Idaho, and Nevada also exempt homesteads to the same amount. Texas goes further, exempting. home- steads of the original value of $5,000 without regard to subsequent improvements ; while Arkansas, Dakota, Florida, Iowa, and Kansas, with varying limitations as to the amount of land, exempt homesteads without re- gard to value, the most expensive as well as the most humble. The amount of personal property of various kinds which may be exempted under these statutes, ranges in the different states and territories from a few hundred dollars, as in Pennsylvania, Maine, and Rhode Island, to a fortune, as in Arizona. Attachment of real estate operates as a lien with- out change of possession. As this is not the case with personal property, the interests of both parties often require that the defendant should give, and the plaintiff accept, a receipt or a bond, signed by respon- THE BEGINNING OF A LAWSUIT. 83 sible parties, that the property attached, or its value, shall be forthcoming in case judgment is recovered. As was remarked above, the first act in the service of a writ (unless the defendant is considered respon- sible) is ordinarily the attachment of property. The practice, however, is not uniform ; in many, probably in most of the states, property must be attached be- fore summons or not until after judgment and execu- tion ; in other states, with certain exceptions, notice must first be given by a summons to appear and de- fend the suit. In either case, within a fixed time be- fore the term of court to which the writ is returnable, it is necessary to serve the defendant with a summons. The forms of summons vary not only in different states, but also in the same state, according to the different kinds of actions and the ways in which they are brought. In some cases the summons is the writ itself, and is served by reading it to the defendant. In others it is a copy, and perhaps generally it con- tains at least the substance of the writ. In olden times summons in real actions was served by erecting a white stick or wand on the defendant's land and by proclamation before the door of the parish church on Sunday. In many cases writs may be served by arrest, in- stead of by attachment and summons. At common law, persons were, generally speaking, liable to arrest in civil suits. The rule has been greatly modified by statute, and in many states it has become the excep- tion. Imprisonment for debt, uncontaminated with fraud, has been abolished in England and in the United States, and the enormities of debtors' prisons, and the wholesome dread with which systematic dead beats used to regard lawyers and sheriffs, have alike 34 TALKS ABOUT LAW. become things of the past. On the other hand, no state, probably, has entirely abolished the right of ar- rest where the cause of action is a wilful and mali- cious injury. Between these extremes there is every degree of variation. In some states arrest before judgment cannot be made in civil suits, except by order of court and for good and sufficient reasons shown by affidavit. In others. New Hampshire for example, the defendant may be arrested upon a writ alleging any injury done to the person, the reputation, or the property of the plaintiff, whether intentional or not, and, unless the defendant can furnish bail, he may be committed to jail until the suit is tried months afterwards, no oath, no evidence, and no payment of jail expenses, on the part of the plaintiff, being re- quired. In states where this rule continues in force, it very rarely happens that any one arrested on civil pro- cess has any difficulty in obtaining bail, unless he is utterly unworthy of confidence ; and imprisonment on execution, in cases not founded on wilful and mali- cious wrongs, may be avoided by taking the poor debtor's oath. There is little incentive, therefore, to make arrests except in cases in which arrests are just : still the rule is subject to some, though not perhaps to all, of the objections that apply to imprisonment for debt. It is true that while one is not bound to give credit to irresponsible persons, he cannot easily guard himself against the carelessness of others ; but, on the other hand, while few persons would be more careless if the legal consequences of carelessness were less serious, many persons in every community, who are reckless in contracting debts and determined not to pay them, would conduct themselves quite differ- ently if the old system remained in force. If it is a THE BEGINNING OF A LAWSUIT. 35 hardship to attach the person of a man who can pay and wiE not pay his honest debts, is it any less hard- ship to attach the person of one who inadvertently trespasses on his neighbor's land, or does him any other unintentional injury ? The great abuse of the right to imprison for debt — perhaps inseparable from such a right — led, not to its restriction, but to its abolition ; whUe in some states the law in regard to arrests in civil cases, not founded upon contract, was left unchanged. Would it not seem that some of our law reformers have either gone too far, or not far enough ? Certain persons are exempt from arrest on civil process, and aU are exempt at certain times. English peers, while within English jurisdiction ; members of parliament and of congress ; soldiers and sailors while in the service of the government; and clergymen, while holding divine service, are exempt from arrest. No one can be arrested on Sunday, or while attending court as a party or a witness ; and in many, perhaps in aU of the states, voters are exempt from arrest on election days. After the service is completed, it is the duty of the sheriff to make a return or official report of his pro- ceedings, together with his fees, on the back of the writ. This having been done, the attorney who drew it enters it at the next trial term of the court from which it was issued. The pleadings follow in regular order, and wiU be the subject of the next chapter. CHAPTER. V. PLEADINGS. This chapter will be as brief as possible, for the subject is dry ; on the other hand, it relates to one of the most important stages in a lawsuit, and that of which the general public know least, and is therefore indispensable to a clear outline of legal proceedings. With this warning, the reader can skip it or not as he pleases. By a plea, is often meant the argument of an advo- cate in the trial of a cause. The legal meaning of the word is entirely different. No cause can be clearly and intelligently tried with- out in some way separating matters which are in dispute from those which are not in dispute. This may be done in three ways : by an examination and sifting of the evidence at the trial, — the most crude, imperfect, and expensive method ; by agreement of the parties or their counsel, — which, in a majority of cases, is out of the question ; or by a system of preliminary, alternate allegations, known as pleadings, and subject to such rules as inevitably lead the parties to some specific point or matter affirmed on one side and de- nied on the other. Pleading, according to the common law, is the science by which matters in dispute between litigating parties are definitely ascertained ; or, in other words, PLEADINGS. 37 by which the questions of law or fact upon which they differ are fixed with legal precision, and by which everything else is eliminated from the cause. Generally speaking, a writ which is the beginning of a suit at common law must fully and substantially set forth the cause of action. The part of the writ in which this is done is called the declaration. If the writ has been duly served and the defendant does not appear at court within a fixed time to defend the suit, judgment will be rendered against him by default. If the amount of damages clearly appears from the writ, or an accompanying specification, execution will be issued for the same and for costs ; if not a mere mat- ter of computation, such, for example, as damages in an action of slander, the court will either assess them after hearing the plaintiff's evidence, or appoint a commissioner to do so, and execution will be issued accordingly. If the defendant appears to defend the suit, before the trial and usually within a fixed time, he wUl be required to file in court a written answer to the decla- ration, briefly but clearly stating the nature of his defence. This answer, if one of fact, is called the plea, and this and all subsequent answers of like character, whether of law or of fact, are called the pleadings. Pleas are either dilatory or peremptory. The latter only relate to the merits of the plaintiff's claim. A dilatory plea may be to the jurisdiction of the court, as, for example, that neither party resides or has property in the county or state, or that a suit brought in a state court is exclusively within the jurisdiction of United States courts, or the converse, or that it is for so small a sum that it should have 38 . TALKS ABOUT LAW. been brought in a lower court, or for so large a sum, or of such a nature, that it is beyond the power of the court to try. A dilatory plea may be in suspension of the action, setting forth special reasons for delay, as that the plaintiff is an alien enemy, or a person under some other temporary disability. This plea is seldom used. A dilatory plea also may be in abatement of the writ, because it was improperly drawn, or prematurely brought, or the names of those who should have been co-plaintiffs or co-defendants omitted, or for any other good and sufficient cause. A plea to the jurisdiction or a plea in abatement, if sustained, is fatal to the plaintiff's suit, though such a result from the latter plea may often be avoided by amendment. Neither plea, however, affects his right to bring another suit, for neither relates to the merits of his claim, but only to the time, place, or manner in which it is made. Peremptory pleas, or pleas in bar, on the contrary, are those which deny the plaintiff's ground of action. They are of various hinds. The simplest form is called the general issue. Its substance is a denial that the defendant has promised, or is guilty, as the plaintiff has alleged, and an offer of trial, which the plaintiff must accept. A plea by way of special traverse is one in which the defendant not only denies the plaintiff's declara- tion generally, but also alleges new matter inconsis- tent therewith, and then specially excludes the in- consistent statement of the plaintiff. The new mat- ter is called the inducement; the special denial, the traverse. The object of the one is to introduce affirmative matter which could not otherwise be set PLEADINGS. 39 forth ; that of the other, to avoid the rule of pleading which prohibits everything of an argumentative na- ture. This plea is now seldom used, as the general issue in most cases answers the same purpose and does not as completely unmask the defence. Other pleas in bar are known as pleas by way of confession and avoidance, in which the facts set forth in the declaration are admitted, and other facts are pleaded to avoid their effect. This plea is a very common one, and, where the rules of special pleading have not been modified or abolished by local statute, it is appropriate in all cases in which the suit is prop- erly brought, and the declaration sets forth a good cause of action, and the facts therein stated are not denied, but other facts are relied upon to destroy their effect. Pleas in bar, except the general issue, may give rise to counter pleas, which, named in the order in which they occur, are known as the replication, re- joinder, sur-rejoinder, rebutter, and sur-rebutter. Be- yond these they have no distinctive names and but rarely extend. Everything in the nature of evidence, inference, and argument is strictly excluded from pleadings, they being brief statements in legal form of the precise grounds upon which the parties rely, and, as every- thing not denied is presimied to be admitted, it is ob- vious that they must inevitably, and, in most cases, at an early stage, lead to the exact matters in contro- versy, affirmed on one side and denied on the other, which are called the issue. The issue may, however, be one of law instead of fact. The defendant may say, in substance, that the matters alleged are not sufficient in law to sustain the 40 TALKS ABOUT LAW. action. This is called a demurrer, and it may occur at any stage of the pleadings when either party sets up as a claim or a defence what his adversary considers insujBficient in law. Demurrer may be either general or special, to mat- ters of substance or to matters of form; but in all cases in which it is not clearly a matter of substance, it is safer to demur specially, setting forth the grounds of objection even though it may inform the other side of an error and the manner of amending it. A demurrer admits aU facts that are well pleaded, and thereupon the court will consider the whole record and give judgment for the party that appears, upon such admitted facts, to be entitled to it. Under the strict rules of pleading, it was a two-edged sword, a dangerous weapon for an unskilled hand. The usual course at the present time, if the law and facts are both in dispute, is to reserve the case in such a man- ner that the law may be decided by the court, either before or after the trial, without admitting the facts. The foregoing is but an outline of a few of the leading features of pleading, the science being an ex- tensive and important branch of the law. Such a system is a great saving of time, labor, and expense in the trial of causes, especially those to be tried by a jury, because, as has been remarked, it analyzes and extracts, like the root of an equation, the real points in dispute, and refers them with all imaginable sim- plicity to the court and the jury. On the other hand, it is open to serious objec- tions: among which are the multitude of rules by which it is governed ; its subtle distinctions ; its lia- bility to sacrifice substance to form, and justice to PLEADINGS. 41 skill; and, above all, its tendency to confine the parties to a single question, affirmed on the one side and denied on the other, to the exclusion of other questions of equal or nearly equal importance. The common law system of pleading has passed through the changes incident to most departments of learning of ancient origin. Prior to the thirteenth century, pleadings were conducted orally in open court, and were very simple, being little more than the elementary principles described in this sketch. Later they became exceedingly complex and technical. Their learning filled extensive treatises, and the prac- tice of pleading was a distinct department of the pro- fession. Lawyers became eminent for their skill as special pleaders, as others have been for forensic elo- quence. Instead of being shortened, litigation was sometimes protracted to an almost incredible length ; and causes were lost and won, as are games of chess, by a skilful move on one side or an error on the other, with but little regard to their intrinsic merits. "Heart-breaking delays and ruinous costs were the lot of suitors. Justice was dilatory, uncertain, ex- pensive, and remote. To the rich it was a costly lottery ; to the poor, a denial of right or certain ruin." These abuses naturally led to a strong prejudice against the system itself ; and in process of time the strictness and formality of its rules were greatly modis fied and relaxed by courts, and altered and in part abolished by legislatures ; so that now, while the learn- ing of the system is substantially the same wherever the English common law is in force, and is necessary for every lawyer to be more or less familiar with, the, practice of the system — where it may stUl be called 42 TALKS ABOUT LAW. a system — is scarcely the same in any two states of the Union; and it is not at all^ear that in many states, as in Massachusetts for example, legislators, in attempting to remedy its abuses, have not gone as far to the other extreme and destroyed its advantages also. CHAPTER VI. THE BEGINNING OF A CRIMINAL PKOSECUTION. In the two preceding chapters the usual features of a suit at common law have been in a measure outlined up to the time when it is in order for trial. As civil and criminal trials are much alike, and as the chap- ters upon trials will apply in great part to both, it may be well, before glancing at that subject, to take a brief view of preliminary proceedings in criminal cases. Criminals would frequently escape if it were neces- sary in all cases to have papers drawn before they could be legally arrested. Officers, such as justices of the peace, sheriffs, coroners, constables, and police- men, may, without a warrant, arrest any person who is committing a breach of the peace in their view. When a high crime or felony has been actually com- mitted, and they have probable grounds of suspicion, they may also, without a warrant, arrest the person so suspected, and in doing so they may break open doors, or even kill the felon if he cannot otherwise be taken. Private persons who are present when a felony is committed are bound to arrest the felon if they can. In following him they may break open doors, and if he is necessarily killed in the attempt to take him it is no crime. When a felony has been actually committed, private persons, acting with " good 44 TALKS ABOUT LAW. intentions and upon such information as amounts to a reasonable and probable ground of suspicion," may- arrest the suspected person without a warrant ; but in doing so they act at their own peril, and if the sup- posed criminal is innocent, their good intentions are ho defence : they are liable for their meddling in a suit for damages. Private persons, arresting on sus- picion, are not justified in breaking open doors, or in killing the supposed felon if he cannot otherwise be taken. Unless the criminal is taken in the act, or there is danger that he will escape, it is better and safer that he should be arrested on legal process served by the proper officer. Criminal prosecutions, therefore, are usually begun by complaint and warrant, by indictment, or by infoi^ mation, aU of which correspond to writs in civil actions. A complaint in common form is a written aUega^ tion that some designated person is guilty of an of- fence therein specifically set forth, made before a magistrate, and duly subscribed, sworn to, and certi- fied. The warrant is a mandatory precept annexed to the complaint, under the hand and seal of the mag- istrate, and directed to the sheriff, or other proper officer, commanding him to arrest the person therein named and bring him before some police or justice court for trial or examination. If the offence alleged is of a petty nature and within the power of the court to try, the matter may be at once disposed of, subject to the defendant's right of appeal. If not, it is for the court to determine — both sides having been heard — whether the evidence against him is such that he should be bound over to await the action of the grand jury. If this is done, he is required to fur- THE BEGINNING OF A CKIMINAL PROSECUTION. 45 nish sureties or give bail to appear and answer such charges aS may be brought against him ; in default of which he is sent to jail. It is not usual, however, to admit to bail in capital cases, and bail is sometimes denied in other cases of the gravest character " where the proof is evident or the presumption great." Unless prevented by his sickness, death, or an act of law, such as his imprisonment on another charge, bail are strictly bound to produce their principal at the required time. Their powers correspond to their liabilities. As they put themselves in the place of the prisoner, and pledge their property and their lib- erty for his appearance, they in return have him " al- ways upon the string, and may piill it whenever they please to render him in their own discharge." " The dwelling-house is no longer the castle of the principal in which he may place himself to keep off the bail. If the door should not be opened on demand at mid- night, the bail may break it down and take the prin- cipal from his bed, if that measure should be neces- sary." " They may do this even on Sunday, and in another state of the Union as well as in the state where they became bail, and in person or by an au- thorized agent." " In doing so they may command the assistance of the sheriff and his o£6.cers." An indictment is a " written accusation of one or more persons of a crime or misdemeanor, presented to and preferred on oath or affirmation by a grand jury legally convoked." No person can be tried at common law for a capital or other infamous crime or felony except upon the indictment of a grand jury. The jury consists of not less than twelve nor more than twenty -three men, summoned from the county or district over which the 46 TALKS ABOUT LAW. court has jurisdiction. They are sworn to secrecy, diligence, and impartiality. Before entering upon their duties they listen to " a charge " from the court. As the court is not supposed to know what may come before them, the charge is usually a short essay or lecture upon some curious or interesting topic of crim- inal law. The charge to a grand jury, unlike the charge to a petty jury, is a matter of custom rather than practical use, and many judges now omit it. After the charge the jurymen are conducted to a room set apart for their use. No one except the counsel for the state, not even the sheriff who has charge of them, is permitted to be present. The witnesses enter one at a time, are examined, and immediately retire. It is not the province of a grand jury to decide whether accused persons are guilty, but only whether there is sufficient evidence against them to justify putting them on trial : for this reason, " they are not to hear any witnesses for the defendant as such. But in searching after the truth of the matter before them, and to determine whether they should find an indict- ment or not, they may call before them any person whom they have reason to believe may aid them in arriving at a satisfactory conclusion. They are to in- quire after the truth and the whole truth. They are not to indict for an isolated fragment of a transaction, but the whole matter should be laid before them, and they should judge it as a whole." A grand jury ■is not, therefore, as many good lawyers suppose, un- der all conceivable circumstances an absolutely ex parte tribunal ; and if, for example, witnesses should seek an indictment for a murder, and the prosecuting attorney should be aware of facts that would satisfac- torily explain the suspicious circumstances, it might THE BEGINNING OF A CRIMINAL PROSECUTION. 47 be his duty as a minister of justice to take such meas- ures as would prevent the indictment of an innocent man. In charging a grand jury, Justice Field, of the Supreme Court of the United States, said : " You will receive all the evidence presented which may throw light upon the matter under consideration, whether it tend to establish the innocence or the guilt of the ac- cused. And more. If in the course of your inquiries you have any reason to believe that there is other evi- dence not presented to you, within your reach, which would qualify or explain away the charge under your investigation, it wiU be your duty to order such evi- dence to be produced." It follows, of course, that witnesses should be so examined as to test their knowledge, capacity, and truthfulness ; and in doubtful cases, especially if there is reason to suspect malice or perjury, that they should be subjected to a severe and searching cross-examination in order that the truth may be known. It is the duty of the state's counsel to instruct the grand jury with the utmost fairness and candor in regard to all matters of law that may come before them, remembering that he has charge of a tribunal before which only one side can be fully heard. They are bound to follow his instructions in matters of law ; but they alone determine the facts, and he should not seek to influence them by the ex- pression of his own opinions. After receiving their instructions, the jury vote " Bill " or " No Bill." Twelve votes are necessary to find a bill or indict- ment. The indictment is drawn by the counsel for the state, signed by him and by the foreman, and re- turned to the court by the latter. It is not the duty of the state's counsel to prosecute every indictment that may be found. It is for him, in 48 TALKS ABOUT LAW. the exercise of a sound discretion, to determine whether justice and the public good require that indictments should be prosecuted, continued, or stricken from the docket. These extensive powers carry with them equal responsibilities, and a wilful abuse of them would render him liable to impeachment and dis- grace; a corrupt abuse of them to severe punish- ment. Legal proceedings as a rule do not shun, but rather court, the daylight. It is a wise policy, however, which makes an exception of matters before a grand jury. They are often the beginning of proceedings, and if they were public the accused would have an opportunity to escape. Again, in every community there are persons who are swift to set in motion crim- inal proceedings upon insufficient evidence, sometimes from honest motives, sometimes from corrupt or mali- cious ones. Such persons are rarely or never pre- vented from testifying before a grand jury; and if the jurors were not bound to secrecy by an oath, stUl more if such evidence were given in public, every term of court would bring a harvest of unjustly dam- aged reputations. It is obvious, therefore, that se- crecy, so foreign to our law in other respects, in this respect is essential alike to the protection of the inno- cent and the punishment of the guilty. An information is similar to an indictment^ except that it is made without the intervention of a grand jury. Informations have never been a constitutional means of trying persons for high crimes either in England or in this country. In England, however, especially in the reign of Charles I., they were extensively used in the Court of Star Chamber, and the great abuses which they subserved and the unconstitutional usur- THE BEGINNING OF A CRIMINAL PROSECUTION. 49 pations of that court led to its abolition and have justly rendered it infamous in history. Informations are still used in England, and sometimes, though rarely, in this country, in the prosecution of minor criminal offences. They are frequently used to re- cover penalties and forfeitures. Informations in the nature of writs of quo warranto are not uncommon. Though criminal in form they are in the nature of civil proceedings, and are frequently used in election cases to oust the wrongful holder of a public office and against corporations that have exceeded their charter rights. The complaint and warrant having been entered, the indictment found, or the information filed, the defendant is required to plead. The elaborate system of pleading that applies in civil causes has but little place in criminal law. De- murrers may be taken, but motions to quash, or, after trial and conviction, motions in arrest of judgment are more frequent. With the exception of pleas to the jurisdiction of the court, pleas in abatement, and pleas of former acquittal, conviction, pardon, and the like, matters of fact are seldom or never formally pleaded as in civil suits, the plea being oral, and simply guilty, not guilty or nolo contendere (I do not wish to contend). The latter plea has the same ef- fect as a plea of guilty, except that it does not estop the defendant to deny the same matter in a civil action, at least if he reserves the right to do so. The rack has never been sanctioned by English law as a means of extorting evidence or confessions, but a practice equally horrible existed for centuries in re- gard to prisoners who stood mute, refusing to plead. Such a person, if the offence with which he was 60 TALKS ABOUT LAW. charged was a capital one, was subject to the follow- ing sentence : " To be remanded to the prison from whence he came ; and put into a low, dark chamber ; and there be laid upon 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 the prison door ; and, in this situation, this should be alternately his daily diet, till he died, or (as anciently the judg- ment ran) tiU he answered." ^ This was called the "penance," or '■'■ peine forte e.t dure" and there have been numerous instances in which persons have died under this horrible torture, in order, for the benefit of their heirs, to avoid the forfeiture of their estates, which was formerly one of the penalties of felony. In the reign of George III. this punishment was abol- ished, and it was enacted that whoever should stand mute should be adjudged guilty. The motive for stand- ing mute no longer exists ; and if such a case should occur at the present time the plea of not guilty would be entered, and the prisoner would be put on trial. 1 Blaokstone's Commentaries, toI. iv. p. 327. CHAPTEE Vn. ANCIENT FORMS OF TKIAi. This chapter and the chapter on Benefit of Clergy haye little or nothing to do with the law as it now is. Perhaps a brief account, however, of customs so strange, and which are matters of authentic history, may not be wholly without interest. Trials by ordeal are characteristic of a superstitious, rather than of a savage, state of society. They have been widely prevalent among races the most unlike in civilization and mental power, from the lowest savages up to the refined and cultured Greeks. They were common in Europe during the Dark Ages, and were among the earliest forms of trial known to English law. They became obsolete in England about the middle of the thirteenth century, though they were practised on the Continent for some time afterwards. In England ordeals were customary only in criminal cases, and were by fire, by water, and by purgation. Fire ordeal was allowed only to persons of rank. The accused was required to handle red-hot irons of from one to three or four pounds in weight, or to walk barefoot and blindfold over nine red-hot ploughshares laid lengthwise at unequal distances. The hands or feet, as the case might be, were then bound up for three days, after which they were examined. If they appeared to be uninjured, the accused was pronounced 52 TALKS ABOUT LAW. innocent ; if not, guilty. In this manner Queen Emma, the mother of Edward the Confessor, was tried for adultery with Alwyn, Bishop of Winchester, and was acquitted. The water ordeal was plebeian, the form of trial allotted to bondsmen and rustics. It consisted in plunging the arm into boiling water, or being flung into a river or pond. In the former case, if the arm was not scalded the accused was declared innocent. In the latter case, if he floated without any appearance of swimming he was declared guilty ; if he sank he was acquitted. This method of being allowed to drown in triumph might have special attractions for modem sui- cides. Trial by purgation was almost identical with that in use among the Jews under the Mosaical law,-* and very similar to that which stiU prevails throughout a great portion of Africa and in other parts of the world. It consisted in eating, at the same time that the sacra- ment was administered, a morsel of consecrated bread or cheese which was expected to cause paleness, con- vulsions, and disorders if the accused were guilty, but health and nourishment if he were innocent. It is re- lated that Godwin, Earl of Kent, being accused of the murder of the king's brother, appealed to this method of trial, and that the consecrated morsel stuck in his throat and killed him. In the Middle Ages, in England, as well as in other feudal countries, civil, military, and criminal causes were frequently decided, as the lawsuits and disputes of nations have generally been decided, upon the bat- tle-field. Trial by wager of battle was introduced with the Norman Conquest, and was maintained for 1 Numbers chapter v. ANCIENT FORMS OF TRIAL. 53 centuries witli great pomp and ceremony. It was a proceeding in the nature of an appeal, and in civil causes was the last and most solemn resort to try titles to real estate. In civil causes the parties might fight either in person or by champions ; in criminal causes they were obliged to fight in person, unless the ap- pellor was a woman, a priest, or a person disabled by reason of infancy, old age, or other bodily infirmity, in which case it would seem that he or she might fight by a champion or be tried by a jury. Peers were exempt from this mode of trial on account of their dignity, and citizens of London on account of their supposed peaceful habits. Trial by wager of battle in civil causes is thus de- scribed by Blackstone : " When the tenant in a writ of right pleads the general issue, viz., that he has more right to hold than the demandant has to recover ; and offers to prove it by the body of his champion, which tender is accepted by the demandant ; the tenant in the first place must produce his champion, who, by throw- ing down> his glove as a gage or pledge, thus wages or stipulates battel with the champion of the demandant ; who by taking up the gage or glove stipulates on his part to accept the challenge. ... A piece of ground is then in due time set out, of sixty feet square, enclosed with lists, and on one side a coiu-t erected for the judges of the Court of Common Pleas, who attend there in their scarlet robes, and also a bar is prepared for the learned sergeants at law. When the court sits, which ought to be by sun-rising, proclamation is made for the parties and their champions ; who are introduced by two knights, and are dressed in a coat of armor, with red sandals, barelegged from the knee downwards, bareheaded, and with bare arms to the elbows. The 54 TALKS ABOUT LAW. weapons allowed them are only batons or staves of an ell long, and a four-cornered leather target ; so that death very seldom ensued from this civil combat. In the court military, indeed, they fought with sword and lance, according to Spelman and Rushworth ; as like- wise in France only villeins fought with buckler and baton, gentlemen armed at all points. . . . When the champions, thus armed with batons, arrive within the lists or place of combat, the champion of the tenant then takes his adversary by the hand, and makes oath that the tenements in dispute are not the right of the demandant ; and the champion of the demandant, then taking the^ other by the hand, swears in the same manner that they are ; so each champion is, or ought to be, thoroughly persuaded of the truth of the cause he fights for. Next an oath against sorcery and en- chantment is to be taken by both the champions. • . . The battel is thus begun, and the combatants are bound to fight till the stars appear in the even- ing ; and if the champion of the tenant (that is, the person in possession of the land in dispute) can de- fend himself till the stars appear, the tenant shall pre- vail in his cause. ... If victory declares itself for either party, for him is judgment finally given. This victory may arise from the death of either of the champions, ... or if either champion proves recreant, that is, yields, and pronounces the horrible word craven, ... by which he becomes infamous, and not to be accounted liber et legalis homo ; being supposed by the event to be forsworn, and therefore never to be put upon a jury or admitted as a witness in any cause." As late as 1818, in the case of Ashford v. Thorn- ton,'^ the Court of King's Bench solemnly decided that the defendant was entitled " to this his lawful mode ' Eeported in Bamewall & Alderson's Reports, vol. i. p. 405. ANCIENT FORMS OF TRIAL. 55 of trial ; " the chief justice, Lord Ellenborough, say- ing : " " The general law of the land is in favor of the wager of battel, and it is our duty to pronounce the law as it is, and not as we may wish it to be ; what- ever prejudices, therefore, may justly exist against this mode of trial, stiU, as it is the law of the land, the court must pronounce judgment for it." The case, however, was finally disposed of in a more peaceful manner, and immediately after the above decision this form of trial was abolished by statute. I am told that quite recently in Pennsylvania a rul- ing was made in favor of the plaintiff, sustaining some technicality that had practically been obsolete for cen- turies. Thereupon the defendant, a diminutive Dutch tailor, claimed that if mediaeval practice were to be en- forced it should be enforced in toto, and demanded trial by battle. As I can find no report of the case, I presume the knight of the shears did not press the question to a final adjudication. The following mixture of truth and sophistry, in which practical failures of justice are criticised and no remedies suggested, is from the pen of Herbert Spen- cer : " It might be pointed out that even now there survives trial by battle under another form ; counsel being the champions and purses the weapons. In civil cases the ruling agency cares scarcely more than of old about rectifying the wrongs of the injured ; but practically its deputy does little else than enforce the rules of the fight ; the result being less a question of equity (justice) than a question of pecuniary ability and forensic skill. Nay, so little concern for the ad- ministration of justice is shown by the ruling agency, that when, by legal conflict carried on in the presence of its deputy, the combatants have been pecuniarily bled even to the extent of producing prostration, and 56 TALKS ABOUT LAW. when an appeal being made by one of them the de- cision is reversed, the beaten combatant is made to pay for the blunders of the deputy or of a preceding deputy ; and not unfrequently the wronged man, who sought protection or restitution, is taken out of court pecuniarily dead." Trial by wager of battle upon an appeal of felony (a criminal prosecution) was very similar to that upon a writ of right (a civil suit) ; except that the oaths were more solemn, and that the combat frequently ended in the death of one of the parties, the defendant knowing that if he were defeated he would be imme- diately hanged. Trials by ordeal were sanctioned by the general be- lief that Providence would interpose and reverse the laws of nature to protect the innocent and to pun- ish the guilty. Trials by wager of battle were in ac- cordance with the military spirit of the age in which they flourished. The former gradually became obsolete, owing less, perhaps, at that early age, to the decrease of superstition than to the frequent exposure of con- nivance and bribery. The latter as gradually gave place to more modern forms of trial, or outside the pale of the law to the " code of honor." Another ancient form of trial was by wager of law, in which the defendant brought into court eleven of his neighbors to swear, after he had made oath that he did not owe the debt or detain the property as al- leged, that they believed he told the truth. He was then entitled to judgment. The above are some of the more curious and impor- tant of the obsolete forms of trial pertaining to our early legal history. Existing forms of trial, in many respects of equal antiquity, will be outlined in the next chapter. CHAPTEK Vni. PRESENT FORMS OP TRIAL. Eqtjity suits are usually heard and determined by the court without the aid of a jury ; although issues of fact may be, and sometimes are, sent to a jury. In common law proceedings, since the forms of trial de- scribed in the preceding chapter became obsolete, and even since an earlier period, jiu-y trials have been the rule; the trial of petty cases before justices of the peace and other inferior magistrates, and the trial of collateral issues by the court, being the principal ex- ceptions. Matters of account, however, requiring an extended examination of books, and involving a large number of items such as could not well be kept in mind by a jury, were and are generally sent to an auditor, who hears the evidence and makes his report to the court. If either party is dissatisfied he can elect a trial by jury, but, according to the weight of authority, the auditor's report is admissible as evi- dence against him. There are also certain classes of actions, founded upon statutory rights, which are ordinarily sent to commissioners, with, in many cases, a subsequent right of appeal to a jury. With the consent of the parties, any cause may be sent to ref- erees for final hearing and determination. In New Hampshire jury trials in civil causes are fast becom- ing the exception. Under the constitutional and 58 TALKS ABOUT LAW. statutory provisions of that state there is no right of trial by jury in certain classes of cases which include the great majority of small suits ; and, unless the parties agree to a reference, such causes may be tried by the court without a jury. In some other states it is becoming quite common to waive the right of trial by jury, and to leave questions of fact as well as of law to the court. All modern forms of trial at common law are very much alike. Most of the rules and incidents that per- tain to trials before judges, auditors, commissioners, and referees also pertain to jury trials, together with others peculiar to the jury system ; and, therefore, a brief sketch of this, by far the most celebrated, and, until recently, at least, the most frequent, method of trial, wiU suffice for all. The origin and early history of trial by jury are not very well known, and have been the subject of much investigation and dispute. Until modem times, common-law authors, judges, and lawyers in general took it for granted that the system was of Anglo-Saxon origin. More recently legal scholars and antiquarians of high authority, Finlason among the number, have advocated the theory that it is, to a great extent, de- rived from, and a modification of, the civil or Koman law. It was popularly supposed to have been insti- tuted by Alfred the Great, but, in fact, whatever its origin, was probably of slow and gradual growth. The number of twelve seems to have been adopted from the first. The Anglo-Saxon jury, strictly speak- ing, consisted of twelve men summoned from the im- mediate neighborhood, who were duly qualified and were supposed to be most intimately acquainted with the facts. The modern jury consists of twelve men, PRESENT FOEMS OF TRIAL. 69 who, in. most cases, are wholly unacquainted with the facts. It is not true, however, that a man is disquali- fied for serving on a jury simply because he has heard or read of the case, and has formed and expressed some impression in regard to its merits ; if it were, the qualifications for jury service in cases that attract great attention would be ignorance and stupidity. The test, therefore, is, not whether the juryman is entirely ignorant of the case, but whether he has formed such an opinion as would be likely to prevent him from impartially weighing the evidence and returning a verdict in accordance therewith. Whether this test applies to petty juries only is an unsettled question, or at least one settled differently in different states ; some courts declaring that preconceived opinions and prejudices are no ground, and others that they are a sufficient ground, of disqualification for service on a grand jury, each theory being supported by strong arguments as well as by numerous decisions. " The petty or trial jury appears to have arisen as an alternative to trial by ordeal. A person accused by the hundred (the grand jury) was allowed to have the truth of the inquest tried by another and different jury." " There is," says Forsyth, " no possibility of assigning a date to this alteration. In the time of Bracton (the middle of the thirteenth century) the usual mode of determining innocence or guilt was by combat or appeal ; but in most cases the appellant had the option of either fighting with his adversary or put- ting himself on the country for trial," — that is, trial by jury. The selection, according to fixed rules of law, of twelve disinterested men, not conversant with the facts nor necessarily acquainted with the parties, was not the practice till after the Norman Conquest, and 60 TALKS ABOUT LAW. was not fully established for the trial of civil suits until about the time of Henry II. Since then a petty or trial jury has consisted of twelve men, drawn ac- cording to local statute from the shire, county, or dis- trict over which the court holds jurisdiction, duly qual- ified, empanelled, and sworn to try such issues of fact as may be presented to them according to the law and the evidence. The trial must be public, except in the rare cases in which a regard to decency and the public morals requires a private hearing. In criminal cases it cannot proceed unless the defendant is present. Not only must he be present in person, but he cannot be subjected to unnecessary restraint; and it has been held that a verdict of guilty is void if the prisoner is tried in fetters. The forms of trial are in most re- spects the same in civil and in criminal cases. After reading the writ and pleadings, or the in- dictment, to the jury, it is customary for the plaintiff or prosecution to make an opening statement of the facts about to be presented in evidence. Although usually considered a minor part and assigned to junior counsel, the opening statement may be made very effective ; for, while argument and what is commonly known as oratory are out of place, it offers an oppor- tunity, by a brief and graphic sketch of the case, not only to fix the attention and awaken the interest of the jury at the start, but also to present its salient points, so that they will easily see the importance and bearing of testimony as it falls from the lips of the witnesses. On the other hand, an opening statement, if overdrawn and not corroborated by the evidence, may be very damaging if the counsel on the other side are prompt to detect and to impress on the minds of the jury the difference between a manifesto and a per- formance. PRESENT FORMS OF TRIAL. 61 After the opening statement, the witnesses for the plaintiff or prosecution are introduced. The rule va- ries somewhat in the different states, and may be re- laxed in the discretion of the court or by the courtesy of opposing counsel, but, generally speaking, all evi- ^dence with which the plaintiff intends to support his writ, or the state its indictment, must be put in con- secutively and before the defendant can be called upon to reply, in order that he may be fully informed of the case he has to meet and also that the trial may not be unduly prolonged. After being examined in chief, each witness may be cross-examined by the opposing counsel. The cross-examination often calls for the highest degree of tact, skill, and knowledge of human nature, and before a vigilant and capable jury may be of even more importance than the closing arguments. Witnesses who are modest, truthful, and self-possessed, who tell only what they know and distinctly remem- ber, are usually strengthened by cross-examination. On the other hand, swift, eager, and over-confident witnesses, witnesses who testify from indistinct im- pressions, and untruthful witnesses, especially in cases of circumstantial evidence, may generally be exposed, and the effect of their testimony ^destroyed, by a searching, skilful and rapid cross-examination. Cross- examination is the most effective means of testing the truthfulness of witnesses, and also their interests, mo- tives, prejudices, sources of information, intelligence, and powers of discernment, memory, and description. Of course the right is liable to abuse, timid witnesses are sometimes bullied and counsel forget to be gentle- men ; but such conduct, by exciting sympathy for the witness and disgust towards the counsel, defeats its own object, is liable to the censure of the court, and is becoming more and more rare. 62 TALKS ABOUT LAW. After the plaintiff has put his whole case in evi- dence, the defendant makes an opening statement and introduces his witnesses. When he has put in his whole defence, the plaintiff is allowed to offer evidence in rebuttal, that is, to contradict or disprove such new matters as were developed by the defence ; and the defendant, in turn, will be allowed to disprove such matters as were first developed by the rebuttal. When the evidence is closed, the cause is in order for argument. The rules of court vary in the differ- ent states. In some, several advocates may speak on each side and at great length. In others, only one argument on a side is permitted and the time is lim- ited. In all, the party on whom the burden of proof rests, generally the plaintiff or the state, has the clos- ing argument. Counsel are bound at their peril to confine themselves to the law, the admitted facts, and the evidence. If they indulge in irrelevant declamar tion or argue matters that are not in evidence, it is the duty of the court to interfere, and if they persist in such conduct the verdict, if they obtain one, is lia- ble to be set aside. After the arguments, the court instructs the jury in regard to the law and the rules of evidence by which they are to be governed. This is called the charge. In most states the jury are strictly bound to receive the law as it is given to them by the court. On the other hand, they alone determine the facts. Although the jury are said to be the sole judges of the facts, the court has power, in the exercise of a sound discretion, to set aside verdicts that are contrary to law, verdicts manifestly not justified by the evidence, verdicts for exorbitant amounts, verdicts that are plainly due to passion, prejudice, or caprice, and verdicts obtained PRESENT FORMS OF TRIAL. 63 by any corrupt or improper means ; and when there is no competent evidence of any fact necessary in law to maintain a claim or a defence, the court has power to order a verdict accordingly. After the charge, the jury are conducted to the room set apart for their use, and are there confined until they agree or it becomes evident that an agree- ment is impossible. Formerly the jury were often confined without food or water until they were starved into unanimity ; but such means of forcing a verdict are obsolete and would not now be tolerated. If the jury cannot agree, the cause stands in order for an- other trial. If they agree, they are reconducted to the court-room and their verdict is delivered by the foreman. If there are no legal objections, such as questions of law to be settled, judgment may be im- mediately rendered upon the verdict, which usually takes effect as of the last day of the term. Strong objections have been made to the rule re- quiring unanimity. It not only leads to disagree- ments, but quite as often to compromise verdicts, not justified by the evidence and satisfactory to neither party. The rule, however, has advantages as well as disadvantages, as there are usually some men of superior intelligence upon a jury who cannot be argued into giving a verdict manifestly wrong. In France, where trial by jury has been introduced to a considerable extent, the jury consists of fourteen persons, two being substitutes, to be used in ease of sickness or other disability, and but eight votes are necessary to a ver- dict in civil causes. CHAPTER IX. EVIDENCE. The brevity of this work will admit of scarcely an outline of the rules of evidence. The introduction of testimony is governed by numerous rules and excep- tions, the design of which is to exclude all irrelevant and improper matter and to insure the trial of causes upon the best obtainable proof. There are some things of which courts take judicial notice without proof : such as the law of nati«ns ; the existence of our own and foreign governments, their flags and seals ; public matters affecting the govern- ment, its political constitution, the officials who ad- minister it ; the territorial subdivisions of the coun- try, its laws, customs, and public statutes; the cus- toms and usages of merchants ; the seals of notaries public; foreign maritime and admiralty courts; de- crees and judgments exemplified under seal; matters of public and general history, and whatever is within the common knowledge and experience of men in general. The law presumes certain things absolutely and conclusively ; no evidence being required to prove them, none being admitted to deny them. For ex- ample : — It is a general principle that one who makes rep- resentations upon which others have a right to rely EVIDENCE. 65 cannot afterwards deny their truth to the prejudice of those who have acted on the faith of them. Thus if A, being the owner of certain property, consents to its sale by B, as the property of B, his mouth is shut ; he cannot claim it of the innocent purchaser. So, if a man cohabits with a woman who is not his wife, openly recognizing her as his wife, he is liable to those who give her credit on the strength of that rela- tionship to the same extent as if they were lawfully married. Again, by ancient English statutes, either adopted or substantially reenacted in the several states, the law conclusively presumes that all causes of action have been settled after certain limited times, unless they have been kept alive by the absence of the de- fendant from the state, the minority of the plaintiff, a promise to pay, a part payment, a new contract, a judgment, or otherwise. This is not because all causes of action are settled within the times limited, but be- cause if the time for bringing suits were unlimited, if persons could wait until a defence were impossible on account of the death or removal of witnesses, until all remembrance of the matter had faded out and all traces of evidence were obliterated, no one would be safe against trumped-up and fraudulent claims. For similar reasons the signatures to a deed or a will, duly proved in other respects, are conclusively pre- sumed to be genuine after thirty years. Conclusive presumptions are made in many cases in favor of judicial proceedings in order that decrees of court may be final and that there may be an end to litigation. The same presumption applies to solemn admissions made in the course of such proceedings, so far as the party making them is concerned, and to ad- 66 TALKS ABOUT LAW. missions made in pleading, as was seen in the chap- ter on that subject. In the absence of force or fraud, no one is permitted to deny what he has solemnly ac- knowledged under his own hand and seal; neither can a tenant, in most cases, dispute the title of his landlord. A sane man is conclusively presumed to intend the natural and probable consequences of his own deliberate acts ; a married woman, committing a felony (other than treason or homicide) in company with her husband, to be under his coercion and with- out guilt ; and a child under seven years of age to be incapable of crime. There are also many presumptions of law not con- clusive, but open to explanation and denial. A child between the ages of seven and fourteen years is pre- sumed to be incapable of crime unless there is evi- dence of sufficient maturity of mind to distinguish between right and wrong. All men are presumed to obey the law, to transact their business properly," to perform all their official and social duties, to be inno- cent until they are proved to be guilty, to be sane until they are proved to be insane. When insanity, not due to temporary causes, is once proved, it is pre- sumed to continue till the contrary appears. The commission of an unlawful act is presumptive proof of a criminal intent. Possession of the fruits or in- struments of crime immediately after its commission is prima fade, evidence of guilt ; possession in gen- eral, of ownership. The destruction of papers by a neutral vessel in time of war is presumptive proof that they were hostile ; the suppression of evidence in a cause, that it would have been unfavorable to the party suppressing it. Presumptions of fact are almost innumerable, as EVIDENCE. 67 they rest, not upon fixed rules of law, but upon the common experience and observation of mankind. As men do not usually commit crime without a motive, such a presumption, for instance, might arise in a murder case, if the accused, together with other sus- picious circumstances, were the only person having a strong interest in the death of the murdered man. There are four fundamental rules which apply to the production of evidence before a jury. First. That it must correspond with the essential, not superfluous, allegations in the indictment, writ, or pleadings, and must be confined to such matters as tend to prove the question at issue. Second. It is sufficient if the sub- stance only of the issue is proved. Thus, in an action of trespass, the substance of the charge is the tres- pass, and, if this is proved, it is no defence that it was not committed on the day alleged in the writ. On the other hand, if it is alleged that the defendant gave a note of a certain date and tenor, the allegations must be proved literally, because they are essential de- scriptions of the note by which it may be distinguished from other notes. Whether an allegation is a matter of substance, to be proved substantially, or of essen- tial description, to be proved literally, often depends upon the technical manner in which it is framed, and in this respect as well as in others, the drawing of dec- larations and pleadings often calls for the highest de- gree of professional skill and judgment. Third. The burden of proof rests upon the party who substan- tially asserts the affirmative of the issue, that is, with rare exceptions, upon the plaintiff or the state ; the former being bound to satisfy the jury by a balance of probabilities ; the latter, beyond reasonable doubt, in regard to aJl facts necessary to make out a case. 68 TALKS ABOUT LAW. Fourth. The evidence must be the best of which the case is susceptible. Thus, the contents of a writing cannot be proved by oral testimony, or, generally speaking, by a copy, if the original can be produced. These four fundamental rules, which cannot be en- larged upon here, are of wide application, and are subject, especially the last one, to many nice modifi- cations and exceptions, either real or apparent. Hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests in part at least upon the truthfulness and competency of some one else ; as, for example, if Smith should testify that Jonea said that he, Jones, had seen Brown commit the act in question. Hearsay evidence, ae- coiiding to the above definition, is admissible only in certain cases where such statements have been made by deceased persons when consciously at the point of death ; under such circumstances the necessity of the case may require the admission of the evidence, and the solemnity of the situation may render it worthy of the utmost confidence. It by no means follows, however, that all a witness may have heard said is hearsay evidence. Statements inconsistent with what the witness testifies to are admissible to contradict him. Anything the witness has heard which forms -a part of the transaction in controversy is original evidence. Admissions against his own interest made by either party, or by his agent in the regular course of business ; acts and declarations of a member of a partnership in furtherance of the common business, as against all members of the firm; of a conspirator in furtherance of the conspiracy, as against all ; con- fessions in criminal cases, when not obtained by im- proper means ; expressions of bodily or mental feeling EVIDENCE. G9 made at or about the time of an accident or occur- rence, when such feelings are material; conversation in regard to the subject-matter in the presence and hearing of either party, as against him ; matters of common report or special information in certain cases, as where the question is whether a person acted in good faith and on probable grounds of belief; the general reputation of a witness for truthfulness, but not particular acts of falsehood not connected with the cause on trial, for no one could meet unexpected charges of that kind at a moment's notice ; in certain cases the general reputation of a woman for chastity, though not particular acts of unchastity unless they relate to the cause on trial; inscriptions on tomb- stones, family portraits, and the like ; family reputa- tion as to pedigree and recognition of relationship; matters of ancient possession and of public and gen- eral interest in certain cases ; evidence given in a former trial of the same matter between the same par- ties, if the witness is dead, absent, or disqualified, — these things, and many others of like character, are admissible as evidence. There are various kinds of evidence, besides those already named under the head of conclusive presump- tions, which the law excludes on grounds of public policy. Among them are professional communica- tions between lawyer and client. " The principle of the rule," says Chief Justice Shaw, " is, that so nu- merous and complex are the laws by which the rights and duties of citizens are governed, so important is it that they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its ministers and expound- ers, both in ascertaining their rights in the country, 70 TALKS ABOUT LAW. and maintaining them most safely in courts, without publishing those facts which they have a right to keep secret, but must be disclosed' to a legal adviser and advocate to enable him successfully to perform the duties of his office, that the law has considered it the wisest policy to encourage and sustain this confidence, by requiring that on such facts the mouth of the at- torney shall be forever sealed." Were it not for such a rule, no one could safely take counsel to ascertain, defend, or enforce his rights. A similar rule prevails in many countries, especially in Roman Catholic countries, in regard to confessions made to priests and clergymen to obtain spiritual advice, comfort, and absolution; the rule, however, is unknown to the common law, and the secrets of the confessional are not privileged, unless, in a few states, by statute. Neither is the privilege extended to phy- sicians, nor to friends, clerks, bankers, agents, or con- fidential advisers of any kind, except legal counsel acting in a professional capacity. Secrets of state, which cannot be disclosed without prejudice to the public interest, and, as a rule, confidential communi- cations between husband and wife, are privileged. There is a large class of contracts and transactions which, from their peculiar liability to fraud and per- jury, are required to be in writing, in many cases to be solemn instruments under seal, and unless the ab- sence of such instruments is satisfactorily explained, oral evidence will not be admitted. The following are common examples : Conveyances of, and contracts to convey, real estate, or any interest therein ; leases, except for limited terms ; promises by an adminis- trator or executor to pay claims against the deceased out of his, the administrator's, estate ; promises by EVIDENCE. 71 any one to pay the debts of another ; contracts in con- sideration of marriage ; contracts not to be performed within a year from the time of making them; and contracts for the sale of personal property beyond a certain amount where there is no part payment or de- livery to bind the bargain. At common law neither parties nor other persons having any pecuniary interest in a cause were per- mitted to testify. Husband and wife could not be witnesses for or against each other. This rule has been generally abolished by statute. The foregoing is an outline of a few only of the rules of evidence. Want of space has rendered it impossible to illustrate their application, much more their numerous modifications and exceptions, and many of the most interesting and important rules — among them those pertaining to the examination of witnesses, the weighing of CAridence, expert testimony, public documents, records, judicial writings, private writings, books of account, and the like — have been omitted altogether. For the student who aspires to try causes for all they are worth, a thorough mastery of the leading principles of evidence is of the first importance. He can no more study his books while court and jury are waiting than a surgeon can while the victim of an ac- cident is bleeding to death. He must decide at once whether he will admit or object to, whether he will offer or withhold, unexpected testimony, and upon the correctness of his decision may hang the issue of the suit. If he is so familiar with the principles of evi- dence that he can detect incompetent testimony as a musician detects a false note, as an Indian detects the traU of an enemy, he is a dangerous opponent even to 72 TALKS ABOUT LAW. counsel of far greater ability and of far greater depth and breadth of learning ; when both are armed with small-swords, and restrained by the rules of the code, a dwarf may be more than a match for a giant. Though there is not the same necessity for having it instantly at command, a thorough knowledge of the rules of evidence is required in the office as much as in the court-room, in advising clients and in prepar- ing causes as well as in trying them. It is not suf- ficient to know whether one has a good cause of action or a good defence on a given statement of facts ; it is equally important to know what evidence is requisite and what is admissible to prove those facts : it may be heroism, it is generally folly, to declare war, how- ever just the cause, without considering whether men and money, powder and shot, will be forthcoming to fight it out. CHAPTER X. BOTH SIDES OF THE JTJBT QUESTION. I. Generally speaking, when a party claims that evidence is improperly admitted or rejected, he may take an exception, and if the exception is sustained an unfavorable verdict will be set aside and a new trial win be granted. To so conduct a trial as to take vahd exceptions and to prevent one's opponent from taking them, is a great point gained ; for in case of defeat the struggle may be renewed, in case of victory its fruits are secure. So far as jury trials are con- cerned, the right to take exceptions is founded upon reason, justice, and sound public policy. It is politic, for it operates most effectually to keep counsel within due bonds. It is just, for if evidence is improperly admitted or rejected, no one, not even the jurymen themselves, can say that the mistakes of the presid- ing judge had no influence upon a verdict against the aggrieved party. It is reasonable, for inexperienced jurymen cannot be expected to discover the truth un- less causes are tried upon such evidence, and such evi- dence only, as may tend to reveal it. Before a jury, if nowhere else, the introduction of testimony must of necessity be governed by established rules and princi- ples impartially enforced. As the right to take exceptions seems to be indis- 74 TALKS ABOUT LAW. pensable to any regular and equal administration of law under the jury system, the hardships which it oc- casions furnish one of the strongest arguments against that system. A trial may last days or even weeks, it may cost thousands of dollars, there may be no proba- bility that another trial as fair and thorough can be had, a pressing necessity may exist for a speedy and final disposition of the cause, and it may be apparent to every one that the decision is just what it should be ; stUl, if the presiding judge has made a single error in admitting or rejecting evidence, in his instructions to the jury, in refusing desired instructions, or in any other way which may in contemplation of law have had an effect upon the jury unfavorable to the de- feated party, the verdict (if exceptions are carried be- fore a higher court) must be set aside and a new trial ordered, to be followed, perhaps, by other trials and other exceptions, until the pugnacity of the parties and their sinews of war are alike exhausted. It is true that the right to take exceptions also pertains to trials of fact before i-eferees and other tribunals learned in the law ; but the hardships that result from it in such cases are less frequent, and before such tribunals it might easily, without confusion or injustice, be so modified as to obviate them almost altogether. This right, too, may be misused in exciting prejudice, as well as in prolonging litigation. The offer of incom- petent evidence is often made merely for effect. It sometimes leads to an animated debate in the presence and hearing of the jury, in the course of which the ob- jectionable evidence is not only made known to them, but fixed upon their minds and invested with undue importance. In most cases they cannot understand why it should be ruled out ; they may regard its re- BOTH SIDES OF THE JURY QUESTION. 75 jection as a sacrifice of justice to technicalities ; and, consciously or unconsciously, their minds are influ- enced by it, when, if it had been admitted without comment, it would have been immediately forgotten. The soundest counsellor, the man who can best ap- ply the principles of law to given facts and circum- stances, owes quite as much to a lifetime of special training as he does to natural ability ; but jurymen, drawn almost at random from the community, their surroundings and their duties alike new and strange to them, ignorant of technical terms, bewildered by the wranglings of counsel, confused by subtle distinc- tions to which they are unaccustomed, their prejudices, passions, suspicions, and sympathies excited by skilful advocates, are expected, after a brief lecture from the judge, to exemplify the wisdom and majesty of the law. The points upon which the merits of a cause de- pend may be few and simple : the judge and counsel may be able to detect them at once ; but does it follow that the jury can do so ? It is a simple thing to run a locomotive — for a competent engineer ; but suppose bench and bar were given a short lecture and put in charge of a railway train ! The want of special training is not the only disad- vantage under which jurymen labor. Referees, au- ditors, commissioners are expected to write down the substance of the testimony and the points upon which the counsel rely, and afterwards to revise their notes at leisure, to compare them together, to discuss, weigh, consider, and then decide. Jurymen, on the other hand, are not expected to take a single note though the trial may last days or even weeks ; they have no means of reviewing evidence, and no time f of^ober second thought ; they must decide under the excite- 76 TALKS ABOUT LAW. ment of the moment, with the arguments and per- haps the sophistries of advocates still ringing in their ears. Can it be doubtful which of the two methods is the more likely to result in findings according to the law and the evidence ? Is it strange that lawyers almost invariably seek jury trials in causes which they re- gard as doubtful, and shun them in causes which they regard as strong ? In certain classes of cases, as where the plaintiff is an attractive woman or a helpless child, and the defendant is a wealthy corporation, is it any wonder that lawyers confidently rely upon the sympar thy of juries to supply deficiencies of evidence and award large damages ? The spirit of independence which has often charac- terized juries will be referred to later. A perversion of that sentiment, an unwarranted disposition to be governed by their own notions of right and wrong, rather than by the law and the evidence, often, espe- cially in this country, renders it impossible to enforce laws upon the wisdom and justice of which public opinion is divided. Trial by jury, even if there is no disagreement and no setting aside of verdicts, is very expensive. Not only several sheriffs and other officials, but also at least thir- ty jurymen must be in attendance, in order that, after making allowance for challenges, there may be two full panels, one to hear a cause while the other is decid- ing the preceding one. In thinly settled communities, where jurymen come from a distance and where suits involving large interests are rare, the public expense of a jury trial is often several times the amount in controversy. Nor are such trials less burdensome to the parties themselves, as they and their witnesses are BOTH SIDES OF THE JURY QUESTION. 77 often obliged to be in attendance from remote parts of the county, perhaps from other states, for several days beforehand, that they may be in readiness when their cause is reached. On the other hand, in trials before referees and similar tribunals, there is none of the pomp and circumstance, and but a fraction of the expense to the public, incident to jury trials. A time is appointed to suit the convenience of all concerned as far as possible, and in most cases a trial can be had without hurry, confusion, or great delay. Jury trials greatly try the patience of counsel, as they can seldom tell when their causes will be reached, and are thus put to great inconvenience and waste of time ; and, if their practice is large, in addition to the other duties of court, they are compelled to be in con- stant readiness with cause after cause, requiring unre- mitting and severe labor. To sum up, it may safely be given as the almost unanimous opinion of bench and bar that there is no other system of trials now in use that is subject to as much delay, inconvenience, vexation, expense, and un- certainty as the jury system. Although it has been claimed as one of the chief ornaments of the common law, the common law manifests its want of confidence in it by sending a large class of cases — the most com- plicated ones and often those involving the largest amounts — to auditors; by making the admission of the least fragment of incompetent testimony ground for setting a verdict aside ; and by giving to its judges power to annul verdicts if, in their opinion, contrary to law, contrary to evidence, founded on mistake, pas- sion, or prejudice, or even if they think the damages awarded exorbitant. 78 TALKS ABOUT LAW, II. On the other hand, trial by jury has much to recom- mend it and more to preserve it. It opens a brilliant field for the gifted and ambitious advocate. It is the speediest means to a county reputation. Juries serve but a single term, generally less, and are replaced by others. Sitting on a jury is. of ten quite an event in the lives of its members, and for years afterwards they talk about the cases and the lawyers with their neighbors and acquaintances. Such trials not only make the lawyer known to the county, but also give him an extensive aQquaintauce with men who are often of local influence, with town ofBcials, and men promi- nent in politics. A county acquaintance and the good- will of widely scattered clients and jurymen are nat- urally of great service to a political aspirant in the beginning of his career. The intelligent study and honorable practice of the law are an excellent school for the legislator, and well adapted to fit him for the duties of law-making, and the training and qualifica- tions that make a successful advocate generally make an effective stump speaker. From the bar to the stump, the legislature, the Congress, and the White House have often been successive steps, and not only a majority of our politicians of the better class, but also a majority of statesmen who are entitled to front rank in the history of our country, have been of the legal profession. To abolish trial by jury, while it would diminish the popularity and influence of lawyers, would greatly increase their power — already sufficient for their own and the public good. As a class they undoubtedly are as well educated and as honorable as any other class of BOTH SIDES OF THE JURY QUESTION. 79 men. Their training peculiarly adapts them to take an active part in public affairs, and their avocation enables them to do so. Their relations with each other are proverbially friendly, not because they are better- natured than others, but because they cannot quarrel without sacrificing more than others their own interests and the interests which they represent. Being deterred from personal feuds by imperative self-interest, and being attracted to each other by a similarity of pursuits and the respect engendered by professional contests, they are inevitably somewhat clannish, are proud of and stand by their order, and illustrate the old maxim, "In union is strength." Usually, in effect, by their selection, and always from their ranks, are taken those who declare what the law is, and to whose decisions legislatures, governors, states, the chief magistrate of the nation, and its Senate and House of Representa- tives must bow like the humblest individual. Thus, by education, ability, and character placed on a level with the other learned professions ; by special training and by occupation entering the political field with the odds greatly in its favor ; united by an invisible bond of freemasonry beneficial to itself, and, on the whole, to the public; of necessity possessing a monopoly of the judicial department of government, the legal pro- fession already has enormous power as well as enor- mous influence. If the jury system were abolished, the decision of questions of fact, as well as questions of law, would fall either to judges, or to practising lawyers sitting as auditors, referees, or commissioners, and the extraordinary spectacle would be presented of a free country in which the rights of every citizen would be determined by a single class, subject prac- tically to no checks except public opinion and a sense 80 TALKS ABOUT LAW. of duty. Such vast powers, intrusted to a permanent and comparatively small body of men, would lead to abuses and to alleged abuses, and would be in direct conflict with the democratic spirit of the age. They would also be in the highest sense injurious to those upon whom they were conferred, for the same reasons, in part, that an English peerage has so often destroyed the political influence of a great commoner. It would be most unfortunate for the legal profession to ex- change its great influence and proud position — largely an honest tribute to learning, ability, and character — for power such as would separate it from and raise it above the rest of mankind, and thus justly render it an object of jealousy and suspicion, perhaps even of fear and hatred. Even if men are put to more trouble and expense, and get less real justice, it is far better that their rights shoidd be de- termined by representatives of all classes than by a single class, for history teaches that class power is inconsistent with liberty. The bench has generally been pure ; but a corrupt judge, trying causes without the aid of juries, would have, compared with corrupt jurymen, almost infinite power for evil ; and, as a matter of fact, it is believed that bribery is quite rare among "the twelve invisible judges, whom the eye of corruption cannot see and the influence of the powerful cannot reach, for they are nowhere to be found until the moment when, the balance of justice being placed in their hands, they hear, weigh, determine, pronounce, and immediately disappear and are lost in the crowd of their fellow- citizens." Even the most important causes, when not tried by a jury, attract but little attention. Jury trials are of BOTH SIDES OF THE JURY QUESTION. 81 a very public nature, and a little sunlight in such matters may be very beneficial, not only to prevent abuses, but' also to offset the conservatism of the legal profession and to effect improvements that might not otherwise be made. Again, however inconvenient it may sometimes be to serve upon a jury, it is not without its advantages ; it affords an opportunity to learn some things that every citizen of a free country should know. It sometimes happens that one party has manifest justice on his side and his opponent the law ; for rules of law are and must be of general application, and, however wise and necessary they may be as general rules, many of them inevitably work hardship in some cases. In such cases jury trials — whether it is an argmuent for them or against them may be an open question — are far more likely than other forms of trial to result in substantial justice. It is a difficult thing to make juries realize that it is their sworn duty to decide according to the law and the evidence, re- gardless of consequences, whether just or unjust ; that they are, for the time being, merely a part of a compli- cated system, having reference to the past and future as well as to the present, the object of which system is to secure and protect, with as little injustice as may be^ the rights of the entire community as well as those of the litigants who appear before them. In hard cases, therefore, jurymen are prone to inquire what is just between man and man; while a judge, or a lawyer sitting as a referee, remembering that " hard cases make bad law," and knowing that he is not re- sponsible for consequences if he does his duty, would simply inquire what is legal. As a jury is not usually required to find the facts in detail, and as the court is 82 TALKS ABOUT LAW. not expected to ascertain on what grounds the verdict was based, if there is any evidence to support it it will generally be allowed to stand, although a learned and experienced tribunal might have been compelled by a sense of duty to find the other way. Under such cir- cumstances, by the aid of a jury, the rule of law — hard in that particular instance, yet perhaps wise and necessary as a rule — is not visibly infringed, and yet substantial justice is done, not so much according to law as in spite of law. For example : A manufactur- ing corporation has earned no dividends for years, and its stock has fallen to ten cents on the dollar. A rich man accidentally learns that a new process has been discovered, and a patent applied for, which will render the business immensely profitable. He knows that his brother's widow owns a quantity of this stock and nothing else. He goes to her, he tells her no lies, he simply offers her twelve dollars a share for her stock, and buys it. His expectations are more than realized, and his investment nets him an income of two or three hundred per cent. His brother's widow and her children become a public charge. What of it? He only kept his superior knowledge to himself, he paid the market price and more for the stock, he did what the law sanctioned, and what on general principles it should sanction ; but if those facts were laid before a jury, and there were the ghost of evidence upon which misrepresentation could pos- sibly be found, they would be swift to make that black-hearted scoundrel pay for a transaction base and heartless, yet for sound reasons of public policy within the strict letter of the law. Trial by jury has deserved much of the praise be- stowed upon it. It was a great advance from trial by BOTH SIDES OF THE JURY QUESTION. 83 ordeal and trial by battle, wtich it superseded. It accomplished untold good in times when judges were the servile tools of royal power. It has been called the palladium of our liberties, and not seldom the independence and fearlessness of juries presented an impassable barrier to the attempts of the crown upon the liberties of the subject. Indeed, had it not been for trial by jury we should not be the free people that we now are ; and, as human nature is the same in aU. ages and everywhere, as history repeats itself in sub- stance if not in form, as enormously rich individuals and corporations are fast becoming the successors to monarchs in power, it is not at all clear that this cum- bersome, expensive, and uncertain method of trial can ever be safely dispensed with ; and, with proper care in the selection of jurymen, it might perhaps be made a means of doing as much justice, and as little injus- tice, as is consistent with human imperfectioiis. CHAPTEK XI. LAW TEEMS : HOW LAW GROWS. The seventeenth section of Magna Carta, signed by King John, June 15th, a. d. 121 5, provides that " common pleas (trial courts) shall not follow our court, but shall be holden at some place certain." Since that time it has been the policy of the law to provide fixed times and places in each county for the trial of causes, thereby saving suitors the inconvenience and expense of travelling long distances with their counsel and witnesses. Questions of law, however, which are decisive of principles and are to serve as precedents, cannot be disposed of by a single judge or by a minority of the court, and, no facts being in dispute, and no witnesses being required, they can be more conveniently determined by the judges sitting together at what are known as law terms. In Massar chusetts, and perhaps in some other states, such terms are held in circuit, but in most states they are held at the capital or some other centre of the judicial district. All the members of the court attend, and the opinions of a majority, exclusive of those who have presided over, or taken part in the trial, determine the law. Law terras are held only by the higher courts, subject to the revision of the highest courts, or, as in many and probably in most of the states, only by the highest or supreme court of last resort. In some states the LAW TERMS: HOW LAW GROWS. 85 judges who hold them also preside at the trial of causes in the several counties ; in other states they are exempt from such duties. The latter seems to be the better method, except for very small states, as a law court composed of many judges cannot work to ad- vantage, and as judges of the greatest weight and au- thority can best be employed in deciding questions of law, leaving jury trials and the like to an inferior court. There is one court of last resort, the English House of Lords, of so peculiar a character as to claim a passing remark in this connection. For centuries peerages have been bestowed in recognition of the highest distinction on the bench and at the bar,^ and thus the House of Lords has seldom been destitute of judges of great ability and learning. They are known as Law Lords, and they alone determine such questions of law as come before this, the highest English court. Questions of law, raised by exception or otherwise, may be transferred to the fuU. bench or law terms for decision. They are drawn up by the judge presiding at the trial, and are technically called the " case." The case is printed under the supervision of the clerk of the court, and copies are distributed by him among the judges and counsel. It is then in order for counsel to furnish briefs. A brief, as the word is generally used in this country, is a printed argument or the skeleton of one, concisely setting forth the points, the legal principles, and the authorities upon which the counsel rely. When the briefs have been duly distrib- uted by the respective counsel, the case is in order for oral argument before the full bench. After ex- ' There are some eighty-five existing peerages, the founders of which won their titles in the law. 86 TALKS ABOUT LAW. amining the briefs, hearing the arguments, and taking time to investigate, consider, and consult together, the court gives its decision, usually accompanied by the written opinion of one or more of the judges. The cause is then remanded to the court from whence it came, for judgment, a new trial, or such other proceed- ings as the decision may require. Such decisions as are considered of sufficient import- ance to legal science are sent to the state or other official reporter, together with the opinions of the judges, the authorities cited on the one side and the other by the counsel, and frequently an abstract of their briefs. These are put in proper form and are published in volumes of convenient size. They are known as reports, and such reports being the carefully recorded decisions of the highest courts of this and the mother country, are of great weight and value as legal authorities. The greater portion of our law has been declared and perpetuated in this way. It is what Bentham called " judge-made law." It has grown up almost imperceptibly. New customs spring up from time to time to meet the business and other demands of the age, and when they become generally known and well established, courts recognize them and they are incor- porated as a part of the common law. In the same way ancient customs become obsolete, and courts, per- ceiving that they are consistent only with the genius and spirit of past ages, cease to recognize them as law. The improvements and inventions of modern times have given rise to innumerable questions of law. Many of them have been decided by a new applica- tion of old principles ; others upon principles adopted from the civil or Roman law ; and stiU others solely LAW TEEMS: HOW LAW GROWS. 87 upon grounds of reason, natural justice, and public policy. The growth and decay of custom, and the decision of new questions incident to an advance in art, science, and business methods, do not, however, account for aU. the changes in the common law. While it is generally understood to be the province of courts to decide what the law is, rather than what it ought to be, they fre- quently exercise their power to overrule former deci- sions, and sometimes decisions of long standing and high authority. There is a great difference of opin- ion among bench and bar as to how far this power may be properly exercised. Lord Mansfield and his successor, Lord Kenyon, may be taken as types of the two extremes. The former has been alluded to in a preceding chapter. His profound mastery of legal science, his consummate ability, his almost unerring judgment and good sense, and the long period during which he was Chief Justice of England, enabled him to maintain the numerous innovations that he intro- duced until their wisdom and usefulness were justified by time and experience. Few of his decisions have been overruled, his name is still of the highest author- ity, and he is justly considered the father of our commercial law. " Quicquid agant homines is the business of courts," said he ; " and as the usages of society alter, the law must adapt itself to the various situations of mankind." On the other hand. Lord Kenyon said : " I do not think that the courts ought to change the law, so as to adapt it to the fashion of the times ; if any altera- tion of the law is necessary, recourse must be had to the legislature for it." At another time he said: "It is my wish and my comfort to stand super antiquas 88 TALKS ABOUT LAW. vias. I cannot legislate, but by my industry I can discover what my predecessors Lave done, and I will servilely tread in their steps." Courts, as a rule, adopt a policy intermediate be- tween that of Lord Mansfield and Lord Kenyon ; in- clining, perhaps, towards the former, and remember- ing, on the one hand, that " the discretion of a judge " has too often been " the law of tyrants," and that it may stUl be, and sometimes is, the ruii\ of individuals ; on the other hand, that unless the law is reasonably adapted to the requirements of the present age rather than to the manners and customs of ages long past, it is worse than cumbersome and useless machinery. The foundations of the common law are precedent, reason, and public policy. Where there is no irrecon- cilable conflict between precedent on the one hand, and reason, or natural justice, and public policy, on the other, precedent should always be followed ; for though the law may be imperfect, if it is certain all men can adapt themselves to it ; but if it is uncertain, if it is liable to be changed in the discretion of courts upon trifling grounds, the security of property is de- stroyed, and no man can teU how he stands or how he may safely act. " Certainty is the mother of repose ; and therefore the law aims at certainty." Courts can- not lightly overrule a series of decisions upon which suitors have a right to rely without doing them and the public great injustice ; neither can they permanently establish innovations, except upon grounds satisfactory to their successors and to the bench in general. But when, on account of a changed condition of society, or for any other reason, it becomes clearly manifest that there is a serious and irreconcilable conflict between precedent on the one hand, and justice, reason, and LAW TERMS: HOW LAW GROWS. 89 public policy on the other, courts will sometimes over- rule a long and uniform line of decisions of high au- thority and ancient standing, doing so either directly or by so undermining and limiting them as to substantially destroy their force and effect. If such new decisions are based upon reasons sound enough and strong enough to justify the change and to overcome the con- servatism and win the approval of the bench in general, they will gradually be followed by other courts, and in process of time will be fully recognized as common law. If they cannot stand this test other courts will not follow them, succeeding judges of the court that de- livered them wiU probably overrule them, and they wiU not be recognized as a part of that ancient, vast, com- plicated, ever-growing and ever-changing system of jurisprudence known as the common law. In many cases both precedent and reason may be arrayed on each side of the same question. A posi- tion may be supported by a line of decisions extending, perhaps, over a period of a thousand years, by names of the highest weight and authority in jurisprudence, and by strong arguments based upon considerations of justice and public policy ; at the same time it may be opposed by an equally long line of decisions, by judicial names of equal weight and authority, and by strong arguments based upon other considerations of justice and public policy. When causes involving such ques- tions come before the courts of the respective states, they must decide as best they can what the law is (or perhaps what it ought to be), the result often being opinions as irreconcilable as would be the opinions of forty doctors of divinity upon some nice theological point, or of forty doctors of medicine upon the best treatment of some hidden and mysterious disease. 90 TALKS ABOUT LAW. Viewed as a whole, the common law is substantially the same in England, in the British Provinces, and in all but one of the United States. Examined in detail, it is scarcely an exaggeration to say that its variations are limited only by the number of the courts that administer it. In the United States alone, some forty courts of last resort are constantly occupied with ques- tions as infinite in variety as are the affairs of men, and each decision, being also a guide for the future, must be, so far as is possible, consistent with prece- dent, with authority, with reason, with justice, and with public policy. This process has been going on ever since our Anglo-Saxon ancestors established their primitive courts in their newly acquired island home, — more than a thousand years ago. Among this vast body of decisions eminent authority may be found for the most conflicting theories, and it is not strange that, in many cases, what the courts of some states reject the courts of other states accept as common law ; and that what a court of last resort declares to be law to-day it may, upon reconsideration, overrule to-mor- row. Whether it is sound in principle or not, until it is overruled, the law of a state is in effect, whatever a majority of the judges of the highest court, by judicial decisions, say that it is. " Brother P , you know that is not the law of this state," said a distinguished chief justice, now a judge of the Supreme Court of the United States, to a great lawyer. " I know it was the law of this state," was the reply, " until your Honor spoke." Courts holding law terms not only declare what the law is, but also, to a greater or lesser extent, how it shall be administered. For this purpose they make what are known as " rules of court," which relate to matters LAW TERMS: HOW LAW GROWS. 91 of form, practice, procedure, the admission of candi- dates as members of the bar, the discipline of such members for unprofessional conduct, etc. Their object is to promote the regular, orderly, and honorable ad- ministration of the law, and they correspond perhaps more nearly to the rules and regulations of a college faculty or board of trustees than to statute law, or even to the rules of the common law, although they may, by general and long established usage, become a part of the common law. Not only do courts promulgate printed rules, but individual judges holding trial terms are at liberty to act according to their own discretion in matters of practice not regulated by rules of court or by the common or statute law. As in the govern- ment of a school, matters may arise requiring imme- diate action in which neither the law nor the regulations of the school board furnish any guide, so in the trial of causes and in the routine of court business questions often arise, for the decision of which there is no au- thority except the good sense and discretion of the judge, and were he not at liberty to exercise it there would be a practical failure of justice. Of course in such matters courts aim at uniformity, but still there is often a wide difference in practice among members of the same court. Rules of court are of very ancient origin. In early times the king was supreme judge, not only in name but also in fact. In matters of great public importance, especially those affecting the interests of the powerful barons, he was under the necessity of obtaining their consent and of conciliating their good wiU. For such purposes they were called together as occasion required to advise with him in the making of laws, a practice which finally developed into the British Parliament 92 TALKS ABOUT LAW. as it is now constituted, and gave birth to our own national Congress and state legislatures. But the king, being both king and supreme judge, when he safely could, often made and unmade rules for the ad- ministration of the law without asking the advice and consent of his barons and great men. The practice of doing so became established, and when, in later cen- turies, the judges became independent of the crown, the kingly power of making and enforcing what are now known as rules of court succeeded to them. This power, now held by all the higher English and Amer- ican courts, is subordinate to the rules of the common law, and stUl more so to express and valid statutes. Further than this, perhaps, its limits cannot be defined. It has been exercised, on the whole, wisely and moder- ately, and no modern court would for an instant claim in theory, much less in practice, the extent of power in this respect that was assumed by the early kings of England. CHAPTER. Xn. THE END OF A LAWSUIT: EXECUTIONS AND COSTS. A CIVIL suit having been finally decided, judgment is usually rendered as of tlie last day of the term. Then, after a certain time, the clerk of the court may be required to furnish the prevailing party with a writ of execution for the amount of his debt or dam- ages, if any, and for his costs. The execution may at once be levied upon the goods and estate, or, in many cases, upon the body of the adverse party. In the former case the property of the execution debtor, not exempt from attachment and execution, may be taken, advertised, and sold at public auction to pay the claim and costs, or, in many states, a sufficient amount of his real estate may be appraised and set off to the prevailing party in satisfaction of the same, the debtor having a fixed time in which io redeem it. If the execution runs against the body of the unfortunate litigant, he may be arrested and confined in jail until he satisfies the execution, or is released by favor of the execution creditor, or by taking the poor debtor's oath, or in some other way After the sheriff has completed his levy, it is his duty to make an ofiicial report of his proceedings on the back of the execution, and to re- turn it at the next term of the court from which it was issued, in order that the record may show what has been done and how much has been collected. 94 TALKS ABOUT LAW. An execution not only calls for the debt or damages awarded, but also for the costs, which are taxed by the party and allowed by the court or its clerk. An execution may be for costs only, as where the prevail- ing party is the defendant, or it may be for costs- and merely nominal damages, when, for example, an action is brought for a nominal trespass in order to deter- mine the title to real estate, or when the damages proved are insignificant. In many, probably in most, of the states, there are statutory provisions for the limitation of costs in certain cases, which are designed to check the bringing of petty and vexatious suits. By the ancient common law no costs were allowed ; but this defect was remedied by statute more than six hundred years ago, and the matter is now everywhere regulated by local statutes or rules of court. Costs is a technical term, not meaning, as is often supposed, the actual expenses, but such expenses or supposed expenses as may be legally recovered from the defeated party. They vary greatly in the differ- ent states ; and in England and in the English Prov- inces they correspond much more nearly than in this country to actual expenses. Here, as a rule, costs in- clude a small sum for the writ, generally less than the amount properly charged by the attorney for drawing it, the fees of the sheriff, the fees paid into court at different stages of the suit, a fixed allowance for the travel and attendance of the party, and for certain other expenses of a minor character, and the witness fees. Witnesses, when summoned to testify in civil causes, are entitled to their fees in advance ; and if they are not paid in advance and do not waive the right, their attendance cannot be enforced. This rule does not apply in criminal causes to witnesses for END OF SUIT : EXECUTIONS AND COSTS. 95 the state ; partly, perhaps, because the credit of the state is presumed to be good, and partly because it has a right to command the services of its citizens in promoting the ends of criminal justice. Costs may be taxed for expenses incurred only in theory of law, as for the travel and attendance of parties at each term of court, though in fact they never attended. On the other hand, costs in many, if not in most, of the United States, include nothing for most of the inci- dental but necessary expenses of litigation, such as the drawing of plans and charts, the preparation of models, the investigations of experts, the examination of books and accounts, the collection of evidence, the services of counsel, and the like, and they are seldom equal to the actual expenses of the prevailing party. At first thought, it would seem no more than just that the party who has maintained his claim or defence should be entitled to recover of his opponent all the necessary expense of doing so. Such a policy, how- ever, would greatly encourage litigation by making it, if successful, pay its own expenses ; would increase the outlay by the expectation of throwing it upon the hos- tile party ; and, above all, would lead to endless dis- putes in the taxation of costs. It would thus, perhaps, be productive of more injustice than it would remedy. Though costs may cover but a small portion of the actual expenses, in stubbornly contested cases, they of necessity sometimes amount to a large sum in the aggregate. In England, before the reforms in prac- tice which have distinguished the last half century, they often constituted a practical denial of justice even to the successful party. The famous ease of Jarndyce V. Jarndyce is fiction only in name : it has had many parallels in real life. 96 TALKS ABOUT LAW. Costs may be taxed in favor of the state ; but can- not be taxed against it, except in the few instances where the right is given by statute. It is one of the misfortunes of being charged with crime that the ac- cused is, generally speaking, obliged to defend himself at his own expense, and can have no claim for reim- bursement, even though he clearly proves his inno- cence. Although, probably, in a majority of cases at the present time those who are tried for crime and are not convicted are actually guilty, and although in such cases the expense of a defence may be practically, if not theoretically, a just pmiishment, still the rule may work great hardship when the accused is really an innocent person. The matter has received consider- able attention from legislators and law-reformers. In many, probably in most, of the states, provisions, in capital cases, are made for securing witnesses for the accused at the public expense if he is too poor to pay them himself. In New Hampshire, in such cases, $75 is allowed the defendant to pay his counsel, — fSO for ' senior counsel, and $25 for junior counsel ; and a few other states, it is believed, make a similar farce of paying counsel for the defence in capital cases. In still other states, counsel in such cases are allowed a reasonable compensation for their services, to be de- termined by the court. In some states, compensation is also allowed for defending poor persons charged with lesser offences, if they are under a certain age or there is reason to believe that they may be insane. Whether any such allowance is made from the public treasury or not, no person charged with crime need be undefended because of poverty. '• In such cases coun- sel are assigned by the court ; and as officers of the court bound by their official oaths to promote justice END OF SUIT: EXECUTIONS AND COSTS. 97 unmoved by lucre, counsel thus assigned cannot refuse the trust ;" ^ and, in fact, as criminals are generally- poor, — at least those criminals who fall into the clutches of the law, — it is a common thing for the most protracted and exhausting trials to be under- taken without compensation, or with merely nominal compensation, on the part of the counsel who defend. 1 Wliarton on Crimuial Law, vol. ill. sec. 3005, 7 CHAPTER XIII. PUNISHMENTS. In Anglo-Saxon times, and for several centuries afterwards, even during the reign of William the Con- queror and his immediate successors, the criminal law was, generally speaking, much less cruel and bloody than it afterwards became. Some of the reasons are obvious. Although the violence and disorder of the times produced many roving bands of outlaws, there were not, perhaps, such distinctly criminal classes as those which now infest large cities and remote frontiers. There could not have been as much difference then as now in the character of men, for marked divisions of society on moral lines, like the minute subdivisions of labor in a great industry, are to be found only in highly civilized states. Among the best the standard of virtue could not have been as high, among the worst the depths of depravity were certainly not lower than at the present time. The robber earl or baton was often a military chieftain of distinguished prowess and munificence ; and his lawless retainers, prompt to draw their battle-axes in neighborhood forays and drunken brawls, were soldiers equally prompt to draw them against the public enemy. The nice distinctions which are now drawn between public and private wrongs were unknown. Severe laws, especially for the punishment of offences countenanced by the great PUXISHMENTS. 99 or tolerated by the spirit of the age, could be enforced but imperfectly, and as there was no surplus popula- tion, human life was considered of some value. The laws, too, if laws they may be called, of the Angles, Saxons, Danes, and other barbarians that found a set- tlement in Britain, were not, on the whole, severe as compared with those of more civilized nations. In Anglo-Saxon times, while mutilation and capital pun- ishment were sometimes inflicted, most offences, homi- cide included, might be atoned by the payment of a fine. The fine went, not to the state, but to the injured person, or, if he were slain, to his relatives. If the king were slain one half of the fine went to the people. The amount of the fine depended upon the rank of the person slain or injured. In cases of homicide the rates were as follows: kings, 30,000 thrymsae (about f2,- 400) ; archbishops and earls, 15,000 thrymsae (about $1,200) ; bishops and earldermen, 8,000 thrymsae (about 1640) ; military commanders, 4,000 thrymsae (about $320) ; priests and thanes, 2,000 thrymsae (about $160) ; ordinary freemen, 267 thrymsae (about $21). Of course these sums were relatively many times greater then than now. Incases of homicide, if the guilty person did not pay his fine, he was liable to capital punishment or to mutilation, or he might be killed or sold into slavery by the relatives of the deceased. The fines for minor injuries were fixed with equal exactness, and the injured persons no doubt collected them when they could. Fines still occupy a prominent place in our criminal law. Nearly all minor offences, and many of considerable magnitude, are punishable in this way. This form of punishment is attended with manifest advantages, and with disad- vantages equally manifest. Fines, as a rule, no longer 100 TALKS ABOUT LAW. go to individuals, but to the public treasury, and thus they defray in part the expenses of criminal proceed- ings. They prevent the multiplication and over-crowd- ing of penal institutions, and in many cases answer the demands of justice without subjecting offenders to unnecessary disgrace. On the other hand, while fines are no longer graded in proportion to the rank and position of the persons wronged, they are not graded, and perhaps it would be neither practicable nor just to grade them, in proportion to the means of the offender. They are, therefore, a very unequal form of punish- ment ; what may be a trifle to a rich man may be ruin to a poor one. In many cases, too, they are a burden upon innocent friends and relatives, rather than upon the wrong-doer. The Anglo-Saxons had an effective system of police, established, as has been supposed, by King Alfred. A hundred neighboring families composed a hundred; ten such families, a tything, decennary or fribourg; over each of which an officer presided. All freemen were required to be members of a tything ; all tyth- ings, to be members of a hundred. The tything was held responsible, not only for the acts of its own mem- bers, but also for the conduct of transient persons and strangers. If an offence was committed, the tything was bound to produce the offender or to purge itself from complicity with his guilt. If it failed to do so, the fine was levied on the tything ; if the tything was not able to respond, it was levied upon the hundred. After the Danish and Norman Conquests a bitter hatred existed between the races ; and King Canute enforced this law, with certain additions, very rigor- ously for the protection of his Danish subjects ; and William the Conqueror enforced it still more rigor- ously for the protection of the Normans. PUNISHMENTS. 101 After the Conquest capital punishments were for a time abolished, although the laws in general grew more severe, and the forest laws, and laws discriminating in favor of the Norman race in particular, were enforced with merciless severity. King William " forbade all punishments by hanging, or any other kind of death ; and substituted in the place of it several kinds of mu- tilations ; as the putting out of eyes, cutting off the hands or feet, and castration. This alteration was made, says the law, that the trunk may remain a liv- ing mark of the offender's wickedness and treachery." Offenders were also punished by forfeiture of prop- erty, banishment, and in case of flight, by outlawry. Whoever knowingly fed or harbored an outlawed man was liable to the same penalty as the outlaw him- self. On the Welsh border the outlaw was considered literally " a wolf's head," his life being legally at the disposal of any one who chose to take it. In many cases, if a person charged with crime took refuge in a church or sanctuary, he was privileged from arrest while there for forty days. During that time he might either surrender himself to justice or abjure the realm. In the latter case he had a certain number of days allowed him to reach the port from which he was to sail, travelling on the public highway and not stopping two nights at the same place. On reaching the port, he was bound to saU as soon as pos- sible, and before doing so he was required to take an oath never to return without the king's consent. Passing from the reigns of William the Conqueror and his immediate successors to the reigns of the Tudors, a period of five hundred years, we find that punishments, on the whole, have greatly increased in severity. The kingly power is nearly absolute, an al- 102 TALKS ABOUT LAW. most incredible number of constructive and. statutory treasons have been created, and not only political of- fences, but also offences in general are visited with death or mutilation. Libellers are fined, imprisoned, branded, and mutilated. Poisoners are boiled alive. Witches and heretics are burned at the stake. It is death to unlawfully kill a deer, to export sheep, to steal a hawk. More than 72,000 persons were exe- cuted for various offences during the reign of Henry VIII., and as many as 60,000 persons were in the prisons at one time, — and this at a time when Eng- land was comparatively a thinly settled country. Be- ing not only a period of barbarous punishments but also a transition period in the history of Christianity, a period of extraordinary religious zeal and bigotry, the Church naturally sought the aid of the law. Heresy was regarded as the deadliest of crimes, toleration as a crime scarcely inferior to heresy, and the various Cath- olic and Protestant sects persecuted each other to the death as they alternately had the power. Passing along to a time almost within the memory of living men, we find two hundred and twenty-three offences punishable with death.^ As late as 1820 (al- ^ This extraordinary number is lai^ely made up by acts of Parlia- ment relating to offences against particular kinds of property, a single kind, in many cases, being protected by a separate act. " From the Restoration to the death of George III., — a period of 160 years, — no less than 187 capital offences were added to the criminal code. . . . In such a multiplication of offences all principle "was ignored ; of- fences whoUy difEerent in character and degree were confounded in the indiscriminating penalty of death. Wheneyer an offence was found to be increasing, some busy senator called for new rigor, until murder be- came in the eye of the law no greater crime than picking a pocket, purloining a ribbon from a shop, or pilfering a pewter pot. Mr. Burke sarcastically observed that if a country gentleman could ob- tain no other favor from the government, he was sure to be accommo- dated with a new felony, vrithout benefit of clergy." May's Constitu- tional History of England, vol. ii. p. 553. PUNISHMENTS. 103 though capital punishmeut was never carried to such an extent in this country) there were over two hun- dred crimes punishable with death under English law. Men, women, and little children were hung by thou- sands for offences that would now be visited by a fine of a few dollars, or imprisonment for a few days, or weeks in the house of correction. Persons accused of crime were hurried at once to trial, without the full benefit of counsel, without the privilege of testifying in their own behalf, and if convicted, were executed after forty-eight hours. Property was dear, because those who owned the property made the laws. Life was cheap, for the lives that were taken were the lives of the poor and the defenceless, and the rich and the powerful, as we shall see in the next chapter, were protected from punishment, not only by their influ- ence, but also by laws made by themselves. " Penal laws in the hands of the rich," says Goldsmith, " are laid upon the poor, and all our paltriest possessions are hung around with gibbets." With the growth of modern ideas of humanity, the strict enforcement of such bloody laws became impos- sible. Courts seized upon every technicality' to save the lives of prisoners charged with minor offences, and, as they could not consistently apply different rules in other cases, the criminal law gradually be- came more and more technical, and the worst offend- ers frequently escaped. Juries often refused to con- vict on the strongest evidence ; and, in cases of larceny, it became customary for them to find the value of the property stolen to be under twelve pence, whatever its actual value might have been. When convictions were secured, full punishment became the exception, mitigation of sentence or pardon lie rule. As the cer- 104 TALKS ABOUT LAW. tainty of punishment, rather than its severity, tends to prevent crime, the consequences were what might naturally have been expected. From 1787 to 1837, transportation in a great measure took the place of capital punishment in England. The discovery of gold in Australia, the influx of respectable colonists, and the abuses that grew up under the system of transportation, led to its abolition. Comparatively mild punishments have taken the place of severe ones, and the death penalty is now inflicted only for the highest crimes. Although the common law is in most respects the same in England and in this country, although an- cient English statutes are to a great extent accepted as common law here, and although there is a strik- ing similarity in the general legislation of the two countries, the hideous criminal code of England in the seventeenth and eighteenth centuries was never fully in force here. The American colonial govern- ments were of three kinds ; provincial, proprietary, and charter. New Hampshire, New York, Virginia, North Carolina, South Carolina, and Georgia had pro- vincial governments. The governors and their coun- cils held office by appointment from the king, and during his royal pleasure. They appointed the judges and magistrates, and had authority to convene a gen- eral assembly of the representatives of the freeholders and planters, constituting an upper and a lower house. The two houses had power to pass local statutes, sub- ject to the approval of the governor and his council and the king. Maryland, Pennsylvania, and Dela- ware had proprietary governments, — the first-named colony under Lord Baltimore, the other two under William Penn. They were similar to the provincial PUNISHMENTS. 105 governments, except that the proprietor himself held the rights of governor and council by grant from the crown. Massachusetts, Rhode Island, and Connecti- cut had charter governments. These were more lib- eral, in many respects corresponding to the state governments of the present time. It is evident, there- fore, that the provincial governments to some extent, and the proprietary and charter governments to a far greater extent, had the right to administer their own criminal affairs. The circumstances, surroundings, in- terests, and, for the most part, the feelings also of the colonists were opposed to a bloody code. Under the "blue laws" of Connecticut and Massachusetts there were but fourteen capital offences. They were milder heyond all comparison than the criminal laws of any European country at that time. For these and for other reasons, severe and cruel punishments were much less frequent in the colonies than in the mother country; and since the Revolution the state legisla- tures have generally prescribed penalties in accord- ance with the more humane ideas of the nineteenth century CHAPTEE XIV. BENEFIT OF CLEEGT.^ Although the Roman Catholic Church, like most other religious organizations, has generally sought to extend and strengthen its dominion by means of tem- poral power, it, nevertheless, throughout the greater part of its history, has claimed as one of its funda- mental rights that aU clergymen should be exempt from the criminal jurisdiction of secular courts. This claim was encouraged by several of the Roman em- perors, and many of the states founded upon the ruins of the empire acknowledged it and submitted to it; but in England it was stoutly resisted for cen- turies. About the year 1150, the struggle between the English government and the Church reached its crisis. A priest, after ruining a young lady of noble birth, murdered her father. The king demanded that he should be deKvered up for trial. The bishops and clergy refused to give him up, claiming that they alone had jurisdiction over offences committed by a member of their order ; that he could be legally pun- ished only by spiritual censures, pains, and penances. They concealed the priest and resisted the officers of the law sent to arrest him. Troops were sent against 1 This chapter, substantially in its present form, was puhlished some years ago as a magazine article. BENEFIT OF CLERGY. 107 them and were repulsed, and at length the king con- fiscated their estates for rebellion. Then down came the thunderbolt of Rome, excommunicating him and his followers from Holy Church, declaring them outlaws from the human race, and consigning their souls to eternal hell. The king bowed his head and trembled. The great leader of the clergy, the Archbishop of Canterbury, returned from exUe. All lovers of Holy Church, priest and monk, men, women, and children, all ranks and aU ages, poured forth to meet him, and to celebrate with hymns of joy his triumphant en- trance. Four days afterwards, at the desire of the king, as it was supposed, he was assassinated at the foot of his altar. " From the time of his death it was believed that miracles were worked at his tomb ; thither flocked hundreds of thousands in spite of the most violent threats of punishment. At the end of two years he was canonized at Rome, and, until the breaking out of the Reformation, Saint Thomas of Canterbury, for pilgrimages and prayers, was the most distinguished saint in England." Thus, by the life, leadership, and death of Saint Thomas k Becket, one of the ablest and boldest prel- ates of history, the germ of what is known in law as Benefit of Clergy was firmly planted in England. Persons in holy orders, persons in " immediate inter- course with divinity, were not to be judged by profane judgments, sentenced by profane mouths, or touched in any manner unpleasant to them by profane hands," whatever crimes they might commit. This was the first step. In the course of time claimants for this privilege became so numerous, and it became so difficult to draw the line of demarkation between the regular 108 TALKS ABOUT LAW. clergy and persons having clerical duties and func- tions, that Parliament enacted that "all manner of clerks, as well secular as religious, which shall be from henceforth convict before the secular justices for any treasons or felonies touching other persons than the king himself or his royal majesty, shall from henceforth freely have and enjoy the privilege of Holy Church, and shall be, without any impeachment or delay, delivered to the ordinaries demanding them." This was step number two.^ But it often happened that clerks, both religious and secular (for secular clerks had a semi-religious character), were admitted to office without any writ- ten evidence of ordination. Written evidence, too, might be forged or lost. But there was a test which, in those dark ages when few except clergymen could read, could scarcely fail. If the prisoner could read, he was deemed a clerk at the very least, and was set at liberty. This was English law for many hundred years, and during all these centuries the criminal code was growing more and more bloody, until at length the number of capital crimes exceeded two hundred. Very many of them were within benefit of clergy. To steal a pocket handkerchief of the value of thirteen pence was a capital crime — unless the thief could read the command, " Thou shalt not steal." A poor old woman was hung for taking one cabbage from a field. If she had been learned in the technicalities of the law,^ as established by " a subtilty in the legal notions of our ancestors," she would have pulled up and carried away a growing cabbage. In that ease the cabbage would have " savored of the realty," and 1 25 Edward III. see. 3, chap. 4. ^ Bla«kstone, book iv. p. 231. BENEFIT OP CLERGY. 109 the act would have been a civil trespass merely and no crime. Unfortunately, she was ignorant of this important distinction, and so she carried away a cab- bage that had already been pulled, a cabbage that had lost its " savor of the realty," and was lying upon the ground. By so doing she committed grand larceny, " the punishment of which is regularly death," and, as she could not read, she was hung. (In the year 1876, in the same English town, an old man was sentenced to six months in the house of correction for the same offence — stealing one cabbage.) The ig- norant man who stole thirteenpence worth of bread was hung. The educated scoundrel walked as free as many a mofleyed scoundrel does to-day, not, as now, by evading the law, but by direct command of the law, for the law was gracious and long-suffering "in favor of one possessed of so rare and valuable a qualification." This was law in Old England, and in New England too, in " the good old times," not very long ago. I am indebted to the research and courtesy of Hon. George A. Eamsdell, Clerk of Court of Hillsborough County, New Hampshire, for a copy of the court records for that county of the trial of one Israel Wilkins, of Hollis, for the murder of his father in 1772. The following is a part of it : " It being demanded of the said Israel Wilkins why sentence of death should not be passed upon him, the said Israel Wilkins prayed the benefit of clergy, which was granted." A long time after the test of an ability to read was established, another distinction was made. Educated criminals, not being punishable, had become so nu- merous and appeared in court so often that Parlia- ment enacted ^ that persons who were not clergymen 1 4 Henry VH. chap. 13. 110 TALKS ABOUT LAW. should have benefit of clergy onlj' once, and that a mark should be set upon them by branding them in the thumb or otherwise, that they might be known. This statute expressly provided that real clergymen in holy orders should not be marked in the hand, and that they should have benefit of clergy as often as they might commit crime. Before their own tribu- nals they were almost equally safe ; by the canon or ecclesiastical law the guilt of a cardinal charged with incontinence could be established by no less than seven eye-witnesses, for "the proofs against a clergyman ought to be much clearer than against a layman." ^ In the reign preceding that in which the last-named statute was passed, there was a ruling of court rather inconvenient for educated criminals, and not altogether consistent with their state and dignity. It was that clergy should not be pleaded till after conviction. Now, on conviction the prisoner's goods and chattels were forfeited to the king, and not only that, but if the prisoner had stolen A's property, A's property was also forfeited to the king, unless A made fresh pur- suit and assumed the expense of prosecution. But benefit of clergy operated as a full and free pardon. " AU this is very true," said a sarcastic lawyer, " but as to your property, the king, you hear, has got it ; and when the king has got hold of a man's property, with title or without title, such is his royal nature that he cannot bear to part with it ; for the king can do no wrong, and the law is the quintessence of jus- tice." « 1 Ayliffe, Par. 448. '' " The king can do no wrong. The law ascribes to the king absolute perfection. . . . The king, moreover, is not only incapable of doing wrong, but even of thinking wrong ; he can never mean to BENEFIT OF CLERGY. Ill By the statute of 28 Henry VIII. chap. 15, ben- efit of clergy was taken away from all offences com- mitted on the high seas. Under this statute, if a man owning real estate to the value of millions, but no personal property, had stolen goods to the amount of thirteen pence, when he was three miles from the mainland, or any headland thereof, or any bay or arm or inlet of the sea, he would have been hung, his lands would have been forfeited to the crown, and his family would have been left to beg or starve, or to steal and be hung themselves. If, however, the crime had been committed at any distance less than three miles from the mainland, or any headland thereof, or any bay or arm or inlet of the sea, then the offender would not have been punishable either in person or estate, provided that he could read. Benefit of clergy, unless the culprit were of noble rank, was rendered almost a dead letter by the stat- ute of 5 Anne, chap. 6, and was finally abolished in 1827, — except as to noblemen. Noblemen were "especially privileged. 1 Edward VI. chap. 12 provided that " any Lord or Lords of Parliament, to include Archbishops and Bishops, and any Peer or Peers of the realm, having place or voice in the Parliament, being convicted of any of the said offences (house-breaking by day or night, highway robbery, horse-stealing, robbing churches, etc.) for the first time, upon his or their request or prayer, though he cannot read, be allowed Benefit of Clergy, and be discharged without any burning in the hand, loss of inheritance, or corruption of blood." After occupying a prominent place in English law do an improper thing ; in him is no folly or weakness." Blackstoue, book i. p. 246. 112 TALKS ABOUT LAW. for more than seven hundred years, benefit of clergy has at length become a thing of the past. Since Vic- toria came to the throne, and since the trial of Lord Cardigan, it has been formally abolished as to noble- men. CHAPTER XV. MARRIAGE. An engagement to marry is nothing but an execu- tory contract, one to be executed in the future. Like executory contracts in general, it is binding only on persons of full age ; it can be dissolved by mutual con- sent, and its breach may lead to a suit for damages. An engagement may legally be broken for causes which woidd be no ground for annulling a marriage or granting a divorce. If either party discovers that the other was unchaste at the time the engagement was formed, it may be broken, and such unchastity is a de- fence to a claim for damages. So, it would seem, it is legally as well as morally a justification for break- ing an engagement if it is the result of the false and fraudulent representations of one of the parties in regard to his or her character, rank, wealth, position, or the like, although such representations would not afEect the legality of a marriage. Marriage is a contract between two competent per- sons of opposite sex to live together for life, subject to such laws as do and may govern the relation of husband and wife The^above is an attempt to reconcile definitions apparently irreconcilable ; for some of the most emi- nent writers and judges say that marriage is a con- tract, although one of a nature peculiar to itself, while 114 TALKS ABOUT LAW. others declare that strictly speaking it is no more a contract than a locomotive is a horse. The origin of the controversy in ecclesiastical claims more than a thousand years old, its history and the arg^mnents on the one side and the other, cannot be dwelt upon here. The question was once of vital importance ; it is now rather a question of words than of ideas, rather how marriage ought to be classed than what it is. It is submitted that it is a contract, for it is a voluntary agreement based upon a sufficient consideration ; but it is not a mere contract, for it is irrevocable, and its conditions, being fixed by law, cannot be essentially varied by the parties. The Roman Catholic Church regards marriage as a sacrament ; Protestant sects generally as in some sense a religious vow ; and, while the law does not expressly recognize its religious character, it does recognize it as the most important of domestic relations, the source of the family, the bulwark of public and private morals, the strength and glory of the state, and, whenever the general law of contracts conflicts with the stability and purity of the institution, its character as a contract is held subordi- nate to its character as a domestic relation. Thus, while the Constitution of the United States expressly declares that no state shall pass any law impairing the obligation of contracts, it is held by an almost uni^ form line of decisions that marriage is not a contract in the sense in which the word is there used, and that the provision does not apply to the law of marriage and divorce. As marriage can be entered only through the door of contract, as it is founded upon contract and implies a contract and something more, it cannot be valid un- less the minds of the parties have met and assented to MAEBIAGE. 115 it. If two persons should go througli the ceremony merely as a joke, it would not be binding even though the person officiating were a clergyman. It would be consistent neither with justice nor with reason if, after the close of a long and honored life, a man's widow wei-e declared his mistress, his children bastards, both alike with no legal claim to his estate, simply because he and some other lady in idle sport had gone through the form of marriage without intending the reality. So, if two persons intend to marry, but not to marry each other, the ceremony, however formal, is not vaUd, for the minds of the parties do not meet. Thus, if two couples were intending to be married in masquer- ade costume, or in the dark, and by mistake the wrong parties should be united in form, they would not be united in law. For the same reason, while false and fraudulent representations as to character, rank, wealth, position, and the like will not. alone in- validate a marriage, a false personation of another will, the impostor not being the person intended. If Mr. A. and Miss B. should become engaged by correspond- ence without seeing each other, and Mr. C. should ap- pear and by representing himself to be Mr. A. should consummate the engagement by a marriage ceremony, it would not be a valid marriage. It is a rule of law, to which perhaps there is no ex- ception, that fraud may be ground for avoiding any and every contract, although the requisite degree of fraud will vary according to the nature of the con- tract and the circumstances of the case. The fact that false and fraudulent representations in regard to the party's station in life will not alone invalidate a marriage is an apparent rather than a real exception to this rule. The essence of the contract is a union 116 TALKS ABOUT LAW. of person, and if a man and woman capable of marry- ing «ach other voluntarily take «ach other as husband and wife, " for better or for worse, for richer or for poorer," there being no mistake in regard to identity, the essence. of the contract is complete, although there may be gross deception in regard to incidental advan- tages, such as wealth and social position. The rule is the same whether the false representations are made by one of the parties to the marriage or by third per- sons. " Suppose a young man of sixteen." says a very eminent judge (Lord Stowell,) "in the first bloom of youth, the representative of a noble family, and the inheritor of a splendid fortune; suppose that he is induced by persons connected with a female in aU iTespects unworthy of such an alliance, to contract a marriage with her, after publication of banns in a parish church to which both are strangers ; I say the strongest case you could establish, of the most deliber- ate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not enable this court to release him from chains, which, though forged by others, he had riveted on himself. If he is capable of consent and has consented, the law does not ask how the consent has b*n induced." There have been extreme cases of such fraud in which, apparently in conflict with the above rule, marriages have been pronounced invalid ; but a care- ful analysis will show that they contain other elements, and, as a rope of several strands may hold when any single strand would break, so a case based on several facts may be sustained though any single fact might be insufficient. A girl of fifteen, heiress to a large fortune, was en- MARRIAGE. IIT ticed from an English boarding-school on the pre- tence that her mother was dangerously ill and had sent for her. The conspirators then induced her to marry one of them by a series of lies, one of which was that her father had become bankrupt and could be saved from ruin only by her marriage, as that would give her or her husband control of her prop- erty, and a forged letter, purporting to be written by her father and urging the marriage, was given to her. Immediately after the ceremony she was rescued. The conspirators were punished, and the girl's friends, wisely avoiding the courts, procured an act of parlia- ment declaring the marriage null and void. Had the matter been left to the courts, according to the opinion of some of the ablest lawyers, the residt might have been otherwise. It may be suggested, however, that there was an element of coercion, as well as fraud, in the case, and that under such circumstances a court would be justified in straining a point to relieve the innocent victim of an abominable conspiracy. The following is a Massachusetts case. A woman of mature years conspired with her friends to induce a boy of seventeen years to marry her, both she and her friends representing that she was virtuous. She was, in fact, of infamous character, and was then enceinte. The marriage was set aside for fraud. In delivering the opinion the court said : " A husband has a right to require that his wife shall not bear to his bed aliens to his blood and lineage. This is im- plied in the very nature of the contract of marriage." The woman was not, as she falsely represented her- self to be, in a marriageable condition. There are similar decisions in other states, and there are also decisions to the contrary. If the young man had 118 TALKS ABOUT LAW. known the woman's condition, or if he had believed the child to be his and had married to avoid a prose- cution, or perhaps (for there are decisions to that ef- fect), if, knowing her condition, and knowing himself to be innocent but unable to show it, he had married to avoid a prosecution; or, however bad her charac- ter, if her condition had been otherwise, the marriage would have been valid. Coercion or duress renders a marriage invalid. There can be no marriage unless the minds of the parties meet and consent to the union, and the form of consent is not binding if it is extorted by violence and terror. To this rule there is no exception, al- though of course a child may be urged to a marriage, may even be threatened with disinheritance for refus- ing to comply, without invalidating the marriage, pro- vided there is finally an exercise of free wiU, an actual consent. Consent implies a mind capable of consenting. No insane, idiotic, or imbecUe person, or more accurately, perhaps, no one who, through mental disease, weak- ness, or immaturity, is incapable of understanding the nature of marriage and of assenting to it, can contract a valid marriage. Conspirators who begin with fraud often end with coercion, and generally their victim is a person of weak or immature mind. It is, therefore, common to find these three elements, fraud, duress, and imbe- cility, in the same case. For example : Certain over- seers of the poor, to relieve their town from liability for the support of a pauper, hired one Wyethe to marry her. Wyethe never had any intention of liv- ing with her, and abandoned her soon after the cere- mony. Here was fraud and conspiracy. The woman MARRIAGE. 119 was told in substance that unless site married the man she would have no settlement anywhere, and would be left to starve. Here, if she believed the statement and was influenced by it, was coercion. While she was not exactly idiotic, she was a " cripple, feeble both in body and mind, and wholly at the disposal of those who had her in charge." Had she been wealthy, she would naturally have fallen an easy prey to the unscrupulous and designing. Her extreme poverty led to the same result. While the fraud and coercion were not such as would influence a person of strong mind, and while, perhaps, she had mind enough to consent to a marriage if left to herself, in view of the combination of the three elements, fraud, coercion, and imbecility, the court held that there was no actual consent to the marriage, and set it aside. As has been seen, marriage is founded upon mutual consent, and if this exists it will ordinarily be held valid however base the motives that lead to it. This is so even if it is contracted solely to defraud others. Where a woman had an estate for her widowhood only, and married for the express purpose of defeat- ing attachments, neither she nor the majj having any idea of living together, it was held that the creditors had no remedy. She had a legal right to marry, whatever her motive. Human law recognizes the law of nature, and a physical impediment, unless it can be removed by surgical operation or otherwise, renders a marriage invalid. If the defect is known, the marriage cere- mony is a gross fraud and outrage ; and, although the unfortunate party may be guiltless of wrong, the con- tract may still be avoided, for the natural and proper relations of husband and wife cannot exist. Mere sterility does not render a marriage invalid. 120 TALKS ABOUT LAW. It has been remarked that an engagement to marry is binding only on persons of full age ; it is otherwise in regard to marriage itself. The nature of the rela- tion is such, the consequences of setting it aside are so disastrous to the innocent offspring, and oftentimes to the morals of the community, that the law upholds marriage although the parties to it may be mere boys and" girls. At common law the marriageable age is fourteen for boys and twelve for girls ; but in some states a different age is fixed by statute. This rule is taken from the civil law, and originated in Italy, where children mature earlier than in climates like- our own. While the law tolerates the marriages of children of tender years, it does not favor them, and- in many states statutes have been passed for the pun- ishment of clergymen and magistrates who so unite' them without proper certificates, or without the con- sent of parents or guardians, and in some instances' they have gone to the extreme length of declaring such clandestine marriages void. The laws of most civilized states, both ancient and modern, have prohibited marriage between near rela- tives ; those of Athens having been in some respects a" marked exception. In England little or no distinc- tion is made between relationship by blood and rela^ tionship by affinity. The English rules in regard to' the latter are largely derived from tenets of the Eo- man Catholic Church which grew up during the Middle Ages. In the reign of Henry VIII., after the authority of Rohie in ecclesiastical matters was discarded, a statute was passed authorizing all mar- riages without the Levitical degrees not prohibited by God's law; but, while a large number of canon- ical impediments were thus swept away that of affinity MABRLSLGE. 121 remained, — for the English Church formally pro- nounced such marriages to be contrary to God's law, and adopted a table of prohibited degrees, and, though its action was not legally binding on the courts, it was naturally followed by them. It is not easy to see on what gTounds the English churchmen held such mar- riages contrary to the law of God,^ or how they can tend to produce an inferior offspring or to degrade family morals. The subject has recently attracted great attention, and several bills permitting marriage with a deceased wife's sister have passed the English House of Commons, and have been defeated year after year in the House of Lords, though by constantly de- creasing majorities. It may seem strange to us, but such marriages are still regarded as incestuous by a large portion of the English people. We have no established church, English ecclesiastical law has not been generally recognized as a part of our common law, and the English rule in regard to the marriage of persons related by affinity has been generally rejected in this country, never having been in force in more than one or two states. It follows that relationship by affinity is either not an impediment to marriage here, or not to the same extent as relationship by blood. The degrees of relationship that render mar- riages invalid are fixed partly by the common law and partly by statute, the latter varying somewhat in the different states. Without considering the subject in detail, it may be said in a general way that relatives by blood nearer than cousins cannot marry each other. It has been repeatedly held by courts of the highest authority, both in England and in this country, that no particular form or ceremony is necessary to a valid 1 Deiiterenemy xxv. 5-=10. 122 TALKS ABOUT LAW. marriage ; that if the parties actually take each other as husband and wife, though no ceremony is per- formed by clergyman or magistrate, it is a valid and binding marriage. This doctrine has been finally overruled in England, but it seems to be sustained by the vi^eight of authority in this country. It is rejected in some states ; it is accepted in others. Upon this question the Supreme Court of the United States was once equally divided ; and recently (1885) Senator Edmunds and Minister Phelps, testifying before the English House of Lords as experts upon American law, gave contrary opinions. The reasons for and against this doctrine apply perhaps with almost equal force to the doctrine that cohabitation, based upon an agreement to marry, constitutes marriage; in other words, that where an engagement is followed by sex- ual intercourse the law will presume, unless the con- trary appears, that the parties must have intended an informal marriage, and by such intercourse they at once become husband and wife. Upon this, as upon the preceding doctrine, the decisions are hopelessly conflicting. Although courts in many states may sus- tain a marriage without ceremony, or an engagement followed by sexual intercourse, they cannot do so un- less it appears that the parties actually intended mar- riage, or at least (and this qualification is not gener- ally considered sound law) that their conduct and relations are such that they cannot be permitted to deny such intentions. Tacitus remarked, nearly two thousand years ago, that good customs avail more than laws. Custom makes marriage an occasion of festivity, reputation requires that it should be publicly known, and common prudence that a record of it should be preserved. Most people also regard it as in MARRIAGE. 123 some sense a religious rite. An honest marriage, an actual meeting and consent of minds, without the presence of clergyman or magistrate, without any ceremony and without any witnesses to establish the fact, although it may be valid, is exceedingly rare. The rules of the common law in regard to marriages without ceremony are to a great extent modified by local statutes, which differ too much and are changed too often to be mentioned here. In many, perhaps in most states, there are statutes which require that a certificate shall be taken out, that the ceremony shall be performed by a clergyman or magistrate, and that a public record of it shall be kept. A neglect to com- ply with such provisions does not ordinarily render a marriage invalid, unless the statute declares so in express terms ; but renders the parties, or the person who performed the ceremony, or both, liable to a fine. There is a statute in New Hampshire which declares that any clergyman, not residing or having a parish in the state, who shall perform a marriage ceremony in the state, shall be fined not exceeding three hun- dred dollars, one half to the use of the complainant. Thus far the terms valid and invalid have been used in speaking of marriage. A valid marriage is one that cannot legally be declared null, that can be dis- solved only by death or divorce. An invalid mar- riage may be either void or voidable. A void mar- riage — if the term may be applied to that which is in law no marriage — is one that may be declared null by any court of competent jurisdiction whenever and wherever its validity is questioned, either directly or collaterally, not only by the parties to it, but also by any third person having a legal interest in the matter as heir or otherwise, and after the decease of 124 TALKS ABOUT LAW. the parties as well as during their lifetime. The good faith of parties to a void marriage may be a defence to a criminal prosecution ; but further than this it has no legal effect. However strong their reasons for supposing themselves legally married, such supposed marriage cannot render children legitimate, cannot give the supposed husband or wife any interest in the estate of the other, cannot affect the descent of prop- erty. Being absolutely void, no decree of court is necessary to declare it so ; except as a matter of pre- caution, that the fact may be established, and as a matter of good taste and respectability, that the parties may not occupy a false position in the eyes of the community. A voidable marriage is one that may be declared null only on application of the par- ties to it or one of them. If they waive all objec- tions and treat it as valid, it will be so to all intents and purposes. Thus, if the marriage ceremony is in- tended as a joke, if the wrong parties are united by mistake, or if there is fraud or coercion sufficient in kind and degree to invalidate the marriage, and the parties afterwards understandingly and voluntarily ac- cept the situation and cohabit as husband and wife, their mouths are forever closed to deny the validity of the marriage, and no one else can object. If one of the parties is insane at the time, the marriage is void- able only ; subsequent restoration to reason, followed by cohabitation, affirms the marriage and renders it valid. So physical impotency renders a marriage voidable, not void, and its validity can be questioned only during the joint lives of the parties and never by third persons. The marriage of a boy under fourteen or of a girl under twelve years of age is not void, but voidable only. On arriving at marriageable age, such MARRIAGE. 125 boy or girl may avoid the marriage by a separation, or confirm it by continuing the relation of husband and wife. According to eminent writers and judicial decisions of high authority, the other party to such a marriage, though of full age at the time it was con- tracted, has the same right of avoiding it; but the soundness of this doctrine may be doubted, for it is contrary to general analogy, and it is outrageously unjust, as under it a man of fuU age might marry a girl of eleven, live with her a year, and then, without fault on her part, cast her off, a mother, but not a wife, penniless and without redress. If either party dies before both are of marriageable age, the marriage can never be avoided on that ground, and the survivor is entitled to the rights of a husband or wife, as the case may be, in the estate of the other. This is so unless the survivor is a boy under seven, or a girl under nine years of age ; for although Lord Coke says that a widow of nine years is entitled to dower, " of what age soever her husband be (at the time of his death), although he be but four years old," other authorities hold that a marriage' of a child under seven years of age is absolutely void and cannot be the foundation of property rights ; that a boy cannot be a widower or have the rights of a husband in a deceased wife's estate unless he is seven years old ; and that a widow under nine years of age is not entitled to dower. Our law in regard to marriage and mar- riage rights of children of seven and nine years origi- nated centuries ago, when the happiness of babes and sucklings was often sacrificed under the forms of mar- riage to ambition and state policy, if it is not rusted out with age and disuse, if it is still in force, it is un- worthy of an enlightened age and people. 126 TALKS ABOUT LAW. The foregoing will serve as illustrations of such marriages as are generally held to be voidable. On common law principles probably all invalid marriages are only voidable, unless they are of such a nature that a due regard for public morals requires that they should be set aside. Polygamous marriages are void ; mar- riages clearly incestuous are generally classed as void, although in many instances it has been held that they are merely voidable ; and, however it may be under local statutes, at common law, according to the weight of authority, marriages within the prohibited degrees, but not incestuous by the law of nature, are void- able only. To say nothing of the complications that may arise from the numerous statutes on this subject, it is not in all cases easy to determine whether a mar- riage is valid, voidable, or void at common law. In this, as in many other departments of law, there are still broad tracts of disputed territory ; but their ex- ploration cannot be attempted here. The whole civilized world is interested in sustain- ing the marriage relation, and it is a maxim of almost universal application that all presumptions are in favor of its validity; the principal exception being in criminal prosecutions for polygamy and adultery, where a valid marriage, or at least a voidable mar- riage not avoided, must be proved beyond reasonable doubt. Subject to this and one or two minor excep- tions, a marriage ceremony is presumed to be valid, and persons who live as husband and wife are pre- sumed to be such in reality until the contrary is proved- Statutes are interpreted by the rules of the common law ; and by those rules they are construed with great liberality, or with exceeding strictness, according as the one construction or the other may MARRIAGE. 127 tend to uphold marriage. The consequences of an- nulling a marriage are widely different from those of granting a divorce. By the latter the relations of husband and wife are dissolved only from and after the date of the decree ; no illegality is imputed to the cohabitation of the parties, no cloud rests upon the legitimacy of the children, and the innocent wife may have an apportionment from the estate of her hus- band. On the other hand, by annulling a marriage, the relation is declared illegal from the beginning, and children born of it are branded as bastards. The common law, therefore, by every means within its power, strives to uphold marriages where the parties are competent to marry each other, suppose they do marry each other, and on the strength of such suppo- sition cohabit as husband and wife. If the validity of a marriage were dependent upon the local law of the state or country where the parties might afterwards travel or reside; if Mr. and Mrs. Smith, in the course of a European tour, might be husband and wife in one country and not in another, nothing short of a total abolition of marriage could surpass the evil and confusion that would ensue. By common consent of civilized nations marriages valid where celebrated are valid everywhere, and marriages void where celebrated are everywhere void. But this rule, like most others, has its exceptions ; it is subor- dinate to public policy and to the accepted standard of morals where the marriage is called in question. For example, where, as in all Christian countries, only one wife is permitted, no court having jurisdiction would hesitate to declare a polygamous marriage void, notwithstanding that it had been celebrated in a coun- try where such marriages were sanctioned by law. 128 TALKS ABOUT LAW, English courts have even gone so far as to declare a Mormon marriage void, although the husband had no other wife. So a marriage between near relatives, al- though valid where celebrated, might be held void if questioned elsewhere. Some of the most perplexing questions have arisen, not where the moral sense of the community has been shocked by polygamous or incestuous marriages, but where parties who could not legally marry in the state of their domicile have gone beyond its lii^its merely to avoid the law and have im- mediately returned. English and American courts have generally sustained such marria,ges; for, while in other cases they might hold such conduct as an evasion of the law not to be tolerated, the conse- quences of holding marriages void are so disastrous to the parties themselves, to their innocent children, and to the public morals, that they cannot be lightly incurred. CHAPTER XVI. DIVORCE. A DivoKCE, as the word is used in our law, is a separation of husband and wife by judicial decree or legislative enactment. A divorce from bed and board is a mere separation, freeing the innocent party from the jiresence and con- trol of the guilty one, and, if such party is the wife, ordinarily giving her a suitable allowance from the income and estate of her husband Such a divorce does . ^ . . . not dissolve the marriage tie ; it gives neither party the right to marry again ; it is no defence to an indictment for bigamy, or to a civil or criminal charge of adultery. It does not even divest the guilty party, much less the innocent one, of his or her interest as husband or wife in the estate of the other. "These qualified divorces," says Kent, " are regarded as rather hazardous to the morals of the parties. In the language of English courts, it is throwing the parties back upon society in the imdefined and dangerous characters of a wife without a husband and a husband without a wife." After such a divorce it is presumed that the marital relations have ceased, and if children are born they wUl be considered as illegitimate until the contrary appears ; but, upon proof of subsequent cohabitation, they will be held to be legitimate. Divorces from bed and board were formerly granted 130 TALKS ABOUT LAW. in most, and are still granted in some of the United States ; in one, South Carolina, no other has ever been sanctioned; and from 1601 (probably from a much earlier period) to 1858 this was the usual form of di- vorce in England. In the latter country, from early times until 1858, matrimonial causes were tried in what were known as the ecclesiastical courts, which, in a broad sense, were courts of common law, although they were governed to a great extent by the rules of the canon or ecclesiastical law. Before 1601 abso- lute divorces were sometimes granted by these courts ; but in that year it was finally decided that they had no power to grant divorces other than from bed and board, and from 1601 until 1858, when the ecclesias- tical courts were abolished by act of Parliament and divorce courts with enlarged powers were substituted, absolute divorce by judicial decree was unknown in England. The same rule has been followed in this country, and it is held that our courts have no power to grant absolute divorces except as it is given to them by statute. A fuU divorce from the bond of matrimony is an absolute and complete dissolution of the marriage tie, abrogating aU marital rights and obligations and leav- ing both parties free to marry again. As has just been remarked, English and American courts have no power to grant such a divorce except as it is given to them by statute. Such statutes, of more or less recent origin, exist in England and in most of the United States. Before their passage, and since the decision of 1601 above referred to, a divorce from the bond of matrimony could be obtained only by special legisla^ tive act, and rarely, if ever, for any cause except adultery on the part of the wife, or open and flagrant DIVORCE. 131 adultery combined with extreme cruelty and outrage on the part of the husband. The distinction between the sexes, making the adultery of the wife a greater matrimonial offence than the adultery of the husband, perhaps in accordance with public sentiment every- where, was founded in law upon the liability to spu- rious issue in the one case, which of course could not exist in the other. Under the English practice the injured husband was required to bring a suit for dam- ages against the adulterer and a suit in the ecclesias- tical court for a divorce from bed and board ; then, having prevailed in both, he was at liberty to apply to Parliament for a divorce from the bond of matri- mony. Thus three distinct suits were necessary, in- volving a delay of several years and an expense of several hundred or perhaps several thousand pounds, practically leaving the poor and persons of only mod- erate means without remedy in such cases. The first parliamentary divorce of this kind was granted in 1669, and such divorces continued in vogue for nearly two hundred years. In many of the older states of this country divorces were formerly obtained, as in England, by special legislative act. Such divorces have been found to be a vexatious and burdensome remedy and open to very serious objections of a pub- lic nature ; they have been prohibited by the constitu- tions of some states, and in aU or nearly all they have become or are becoming things of the past. The sub- ject is now regulated almost entirely by general stat- utes conferring divorce powers upon the courts, — in some states sitting as courts of common law, in others as courts of equity. These statutes vary greatly in the different states, and in some provide for divorces intermediate between 132 TALKS ABOUT LAW. a mere separation from bed and board and a complete sundering of the marriage tie. The following are examples of some of the restrictions that have been imposed in a number of states : That neither party shaU marry again for a limited time ; that the inno- cent party alone shall be free, the guilty party not being permitted to marry again during the lifetime of the other; that the guilty party shall not marry again for a limited time, or not without the consent of the court ; that, after the trial and before the final decree, the parties shall be separated from bed and board for a fixed number of months, thus giving them time and opportunity for reconciliation. The grounds also upon which divorces may be ob- tained vary greatly according to local statutes. So far as the innocent party at least is concerned, adultery is probably a ground for divorce from the bond of matrimony in all parts of this country except South Carolina, and the distinction between the sexes in this respect that has been made in some countries has found no favor here. Cruelty in some form is cause in most states for freeing the innocent party at least from the bond of matrimony. The degree of cruelty depends of course upon the wording of the local stat- ute. In some states it must be physical violence of such a nature as seriously to endanger life ; in others no physical violence is necessary, — profane, insulting, and abusive language, if habitually used, being held sufficient. Mental suffering may be far greater than physical ; and the tendency of courts at the present time is to regard its wanton infliction, if sufficient in degree, as extreme cruelty. Such conduct as seriously to injure health or endanger reason, a cause for di- vorce in some states, is, in most cases, but another ex- DIVORCE. 133 pressi^n for cruelty unaccompanied by physical vio- lence, although cruelty may be mentioned separately as a cause. In many states desertion by the husband, he making no provision for his wife's support and being of sufficient ability ; desertion by either party ; refusal to cohabit ; habitual drunkenness ; and vari- ous other matrimonial offences of like character, hav- ing continued without interruption, for a fixed number of years, are grounds for divorce. Absence from the state for a fixed number of years without being heard of or from is perhaps generally a ground for divorce. 3y.an English statute of the time of Charles I., ac- cepted as common law in this country, such absent person is presumed to be dead after the lapse of seven years, and the wife or husband left at home is legally justified in marrying again, though, of course, the second marriage will be void if it is not preceded by a divorce and the missing husband or wife afterwards appears. Under such circumstances, a second mar- riage is not even a matrimonial, much less a criminal, offence, and, though it may result in a new race of children, the returning Enoch Arden has no ground of complaint if cohabitation under it ceases as soon as the facts are known. In some'states a shorter period than seven years is fixed by statute ; but the safer way in all cases, unless the absent person is known to be dead, is to procure a divorce. Irrespective of stat- utes reducing the time, the same freedom from civil and criminal liability would foUow the lapse of a shorter period than seven years if there were accred- ited and apparently authentic reports of the death of the absent party. In some states conviction of a state prison offence, or conviction and punishment, is a ^ound for divorce, it being for that purpose consid- 134 TALKS ABOUT LAW. ered as civil death. The above are the principal grounds for divorce in most of the United States. In a few states courts have been authorized by statute to grant divorces in their discretion upon proof that they would be " reasonable and proper, conducive to domestic harmony, for the good of the parties, and consistent with the peace and morality of society." Such statutes, although sufficiently loose, are not held to warrant a judge in granting divorces merely because the parties desire them, however liberal his ideas on the subject may be. The discretion intended is not individual or private, but judicial discretion ; it must be reasonably conservative and in conformity with es- tablished precedents if any such there are. Two or three states have gone to the extreme length of au- thorizing courts to grant divorces whenever it appears " that the parties cannot live together in peace and harmony, and that their welfare requires a separa- tion." This is what is called divorce for " incompati- bility of temper." The common law favors marriage ; it therefore frowns upon divorce, which is the dissolution of mar- riage. Even in the states where the statutes on this subject are most lax a divorce cannot be obtained by default. A man sued for a debt is charged unless he appears to defend himself. A man indicted for a crime may be sentenced without a trial upon his confession in open court. A divorce cannot be obtained in this way. Men are seldom willing to pay what they do not owe, or to be punished for crimes which they do not com- mit, and the want of a defence in the one case, or a solemn confession in the other, is deemed ample proof. On the other hand, men are frequently willing that unfounded charges should be brought against them. DIVORCE. 135 the consequence of which may be to free them from an uncongenial union, and sometimes they commit adultery and other matrimonial offences for this very purpose. In divorce causes, therefore, the law re- quires, although the defendant may admit his guilt, that it shall be proved by other evidence. It goes much further. If it appears that there has been any coUusion between the parties, any agree- ment to assist or even not to oppose each other, a di- vorce will not be granted, and if such collusion was unknown at the time, but is proved afterwards, the decree is liable to be set aside, even though years may have elapsed since it was rendered. No divorce can be decreed for any matrimonial offence, not even adultery, committed with the consent or connivance of the other party ; nor for any such offence after it has been unconditionally forgiven or condoned. If a husband, knowing that his wife has been unfaithful to him, voluntarily and unconditionally receives her back, his mouth is shut ; he cannot afterwards ask a divorce for that cause. The same rule applies equally to the wife; but when she occupies, as she generally does, a less independent position than her husband, the law will not imply forgiveness from as slight cir- cumstances. Condonement, to be an absolute bar to a divorce, must be unconditional ; if it is made to de- pend on the future good conduct of the guilty party, a repetition of the offence will avoid it and leave the innocent party free to procure a divorce for the first offence or for the second, as may be most convenient ; neither does absolute condonement, unless it practi- cally amounts to connivance or consent, necessarily cut off the right of divorce for future matrimonial offences ; for, while the law will not revive what has 136 TALKS ABOUT LAW. j been forgiven, it will not discourage a forgiving dispo- sition. While actual knowledge of unfaithfulness, ex- pressly or tacitly forgiven, is, in either sex, a bar to divorce, mere suspicion, even a strong and welWounded one, does not have this effect ; an unfounded charge of this kind is often as fatal to the happiness of a family as a well-founded one, and it woidd be an un- reasonable and unjust thing if the law compelled any one to elect between a forfeiture of rights and proceed- ing upon mere suspicion in a matter of such delicacy and importance. Another rule of almost universal application is that whoever applies for a divorce must come into court with clean hands. In most states the province of di- vorce is not to free persons mutually in fault, but to furnish innocent persons a means of escape from what has become intolerable bondage in consequence of a guilty disregard of the fundamental duties and obliga- tions of the marriage relation. The plaintiff or libel- lant, therefore, must be prepared to vindicate his or her character as husband or wife, as well as to prove the shortcomings of the defendant or libellee. It is not sufficient that the latter is more to blame ; the former must be substanially, or at least comparatively, without fault. This rule, of course, has a limit : it would not be a defence to a libel for adultery that the libellant, without violating the marriage vow, had given just occasion for jealousy ; neither would the fact that a wife had used improper and provoking language be a defence to a libel for inhuman cruelty on the part of the husband. In most states where absolute di- vorces are permitted for other causes than adultery, the libellee may recriminate, or set up as a defence any conduct of the libellant which would itself be a DIVORCE. 137 ground for divorce : thus, if the libellant alleges adul- tery and the libellee alleges cruelty, habitual drunken- ness, or the like, and both parties prove their allega- tions, the divorce cannot be granted. The decisions, however, are not uniform, and in some states it is held that cruelty and the like is not a bar to divorce for adultery. It win be seen from the foregoing that the law favors marriage and discourages divorce in the most vital points : by entirely disregarding the wishes of the guilty party ; by rejecting his solemn confessions, unless they are supported by other evidence ; by mak- ing any collusive agreement between the parties de- feat itself ; by declaring that matrimonial forgiveness cannot be retracted ; and by insisting that there shall be an innocent as well as a guilty party. The law goes further, and by the weight of authority, perhaps, although there are decisions to the contrary, holds any and all articles of separation, however worded and however solemnly executed, absolutely void, on the ground that a separation of husband and wife by agreement is contrary to public policy and prejudicial to public morals. As courts hold such articles void upon these broad grounds, they are of course void in states where husband and wife are by statute per- mitted to make contracts with each other, as well as in states where the rule of the common law -in this respect has not been abolished. In some states divorce causes are tried by jury, the court sitting as a court of common law; in others they are tried by judges sitting as a court of equity. As a rule its extreme publicity is one of the advan- tages of the jury system ; divorce causes are perhaps an exception, because the evidence frequently is and 138 TALKS ABOUT LAW, must be of too scandalous and indecent a nature to be made public without injury to the morals of the community. If divorce causes involved nothing but a severing of the marriage tie, few of them would be sharply con- tested, for generally where one desires a separation both desire it. Sometimes a defence is made merely to annoy the libellant and perhaps ■ prevent a second marriage ; more freqently to vindicate one's good name from charges of a degrading or infamous char- acter; but stiU oftener to retain the possession of property or the custody of children. In decreeing a divorce against an offending husband it is customary to give the wife a portion of his estate, or an annuity, or both. This allowance is called alimony, and is in lieu of the support to which she would be entitled if the marriage were not dissolved, and perhaps also in lieu of the portion which she would otherwise receive at her husband's death, although, as no allowance from the estate of a wife can ordinarily be given to an inno- cent husband under the like circumstances, the latter reason does not seem to hold good in principle. The amount of alimony is largely in the discretion of the court, and is usually from a fourth to a half of the hus- band's estate. Where his conduct has been extremely bad, or where the property is mainly derived from the wife, or the custody of young children is given to her, half of the property is sometimes given to her, occa- sionally even more if the suitable maintenance of her- self and children requires it. The court may also make a temporary allowance for the benefit of a wife who is defendant in a divorce suit. If no decree is made in regard to minor children, they of course re- main with the father, he having a paramount right to DIVORCE. 139 them as the natural and legal head of the family. Courts that have power to grant divorces ordinarily have power to dispose of the custody of the minor children, and in doing so wiU consult the interests of the children rather than the wishes of the parents. In deciding such questions courts will take into ac- count everything that pertains to the real and per- manent interests of the children ; the property expec- tations from the one parent and the other; the com- parative social, educational, and moral advantages which may be expected ; the care and love which will be given them; and, if the children are old enough, their own feelings and inclinations. Children are not given to one parent as a reward of innocence, or taken from the other as a punishment of guilt. To those who do not reflect how good and evil passions exist side by side in the human heart it may seem a strange statement, but it is a tnxe one, that a faithless or otherwise guilty husband or wife may be, and some- times is, a judicious and affectionate parent. Of course such cases are exceptional ; but where courts are clearly satisfied that they exist, and that the best interests of the children require it, they will give them to such parent, although he or she may have been guilty of grave matrimonial offences. Although persons incapable of marrying each other in their own state leave it for the express purpose of evading the law and immediately return, the marriage will ordinarily be held valid. The reverse of this rule applies to divorce. A court has no jurisdiction to grant a divorce unless one or both of the parties has a domicile, that is, a home within its territory. The fact that a man, in moving to a particular state, is influ- enced by the facility with which he can procure a di- 140 TALKS ABOUT LAW. vorce under Its laws, does not prevent his . doing so, provided he moved there in good faith, actually intend- ing to make it his home, for the law does not concern itself with a man's motives in choosing a home. In many, perhaps in most states, the plaintiff must have been a resident for a fixed period before he can apply for a divorce ; but the mere fact that he has remained in the state for the required time is not generally suf- ficient. If he moved there, not intending to make the state his home, but merely to remain the required time, procure his divorce, and then go elsewhere, he ' wiU not be entitled to a divorce, however strong his case may be in other respects. If he should procure a divorce by falsely representing that he had a domi- cile or home in the state, instead of a mere temporary residence, and the real facts should afterwards be proved, the court would set the decree aside; and, whether it did or not, courts of other states would re- fuse to recognize it as valid. As a man may have a summer residence in one state and a winter residence in another ; as he may have no fixed habitation, but pass from place to place as business or pleasure may direct; as he must have a domicile somewhere, and can have but one for the same purpose at the same time ; and as his statement is not necessarily conclu- sive, it is sometimes exceedingly difficult to determine where it is. But this is not a matter that can be dwelt upon within the limits of this chapter. What- ever modifications of the rule requiring a permanent domicile may exist in some states, no valid divorce can be decreed anywhere unless the parties, or one of them, has some kind of a residence in the state where the suit is brought, or, at least, is within the jurisdic- tion of the court. It may be proper to mention here DIVORCE. 141 a species of swindling that has been extensively prac- tised in this country. In newspapers of a certain class it is common to see advertisements that divorces may be obtained without publicity by applying to the subscribers, attorneys and counsellors at law (in some large city, of course). Advice by mail is without charge. The advice is always to the effect that the person desiring it has legal ground for a divorce, and may obtain one by making certain payments and sign- ing and swearing to certain affidavits, etc. The papers arrive, are signed, sworn to, and returned, ac- companied by the first instalment, usually about forty or fifty dollars. Perhaps unexpected obstacles will be encountered, and further affidavits and payments wiU be required. In due time, however, notice is received that, on payment of the balance due — some forty or fifty dollars more — a final decree will be taken, and a duly authenticated copy or certificate thereof will be forwarded. The money is sent, the document is re- ceived, — a solemn and formidable looking 'instru- ment, obtained either by imposition and fraud, or else an outright forgery ; in either case worth exactly as much as though it were issued by the king of Ashan- tee. The dupe of criminal shysters abandons the woman he has wronged by secretly applying for a divorce, induces some other woman to unite her lot with his, begets a new family of children, and finally discovers that they are bastards, that the first woman is still his lawful wife, that the second is not his wife, and that he himself may possibly be in danger of im- prisonment for bigamy or for perjury. It is not necessary that both parties to a divorce suit should reside within the jurisdiction of the court ; if the libellant has a domicile there and the libellee has 142 TALKS ABOUT LAW. legal notice of the proceedings, it is ordinarily suf- ficient. As a rule, the domicile of the wife follows that of the husband ; but if she leaves him for causes justifying a separation and moves to another state, she may acquire a new domicUe there, and if he wrongfully leaves her and moves to another state, she wiU retain her established domicile. In a few states it has been held that the parties must have been married within the jurisdiction of the court, as well as have a domicile there; in most states, however, the place of marriage is immaterial. While a criminal can be tried only in the state and county where the crime was committed, it is the gen- eral rule, if the court has jurisdiction over the parties, that a divorce can be decreed for a matrimonial of- fence committed in another state or in a foreign coun- try ; for the proceeding is civil, not criminal, and re- lates to the future status of the parties rather than to the punishment of wrong-doing. If the jurisdiction of a court is conceded and its decree of divorce is valid where rendered, it is valid everywhere. This is so on general principles of pri- vate international law, or what is sometimes called the comity of nations ; for there would be infinite uncer- tainty and confusion if international courtesy paid no respect to the decrees of foreign courts. A divorce having been decreed in one of the United States, the jurisdiction of the court and the validity of the decree there being conceded, is valid in all other parts of the country for the additional reason that the Con- stitution of the United States provides that "fuU faith and credit shaU be given in each state to the public acts, records, and judicial proceedings of every other state." DIVORCE. 143 The distinctions between a decree of nullity and a divorce, so far as the legitimacy of children, property rights, and the like, are concerned, have already been alluded to. The one pertains to the past ; the other to the future. The one determines what the status of the parties is without changing it ; the other changes their status. The one does not dissolve a marriage, it simply declares that a supposed marriage has not ex- isted ; the other recognizes the validity of the mar- riage and dissolves it. Although the consequences are so different, the methods of procedure are very similar : indeed, decrees of nullity are sometimes treated under the title of divorce, and courts are sometimes authorized by statute to grant divorces for causes that are at common law grounds for declaring a marriage voidable. CHAPTER XVII. THE DIVOKCB QtOESTION. The institution of marriage is universal; if there are savage tribes where it does not exist, they are too few and too insignificant to be considered as excep- tions to the rule. It is not so in regard to divorce. There have been highly civilized states in which it has been unknown ; states equally civilized in which it has been almost unrestricted; and between these extremes the tides of law and public sentiment have ebbed and flowed for thousands of years. During the past few decades the number of divorces in this ^country has greatly increased ; the increase being due wholly or in part to the recent statutes re- ferred to in the preceding chapter, in consequence of which it has, for the statutory causes, become cheap and easy to obtain a divorce, where before it was im- possible, or at least expensive and difficult. These changes in the law and the consequent multiplication of divorces have occasioned great anxiety in the minds of many good people, and have naturally at- tracted much attention to what is known as the Di- vorce Question. My convictions upon this subject differ widely from those of many of the purest and best persons. In exposing myself to their criticism, I only ask that the two preceding chapters may be read in connection with this chapter. THE DIVORCE QUESTION. 145 The various positions taken upon this subject may- be briefly stated as follows : — 1. That divorce should not be granted for any cause. 2. That divorce should be granted only for adultery. 3. That divorce should be granted only on appli- cation of an innocent party, and only for gross neg- lect or violation of marital duty substantially frustrat- ing the objects of marriage, the causes for divorce being in all cases established by statute. 4. That divorce should be granted whenever, in the sound discretion of the court, it would be "reason- able and proper, conducive to domestic harmony, for the good of the parties, and consistent with the peace and morality of society." 5. That divorce should be granted whenever it ap- pears " that the parties cannot live together in peace and harmony, and that their welfare requires a sepa- ration." 6. That divorce should be granted whenever both parties desire it. 7. That divorce should be granted whenever either party desires it. A consideration of the first and second positions, that divorce should not be granted for any cause, or only for adultery, leads at once to alleged scriptural prohibitions. On the strength of the words, " What God hath joined together let no man put asunder," most Roman Catholics and many Protestants regard mar- riage as morally indissoluble except by death. One can find authority — if it is authority — for almost any position by taking any work upon moral, polit- ical, social, legal, or natural science, selecting a single passage, isolating it from the context and from the 10 146 TALKS ABOUT LAW. general tenor of the work, and giving to it an extreme and literal interpretation. No intelligent man, what- ever his religious faith, wiU claim that the Scriptures are an exception to this rule. If the passage above quoted is to be interpreted in this manner, if marriage is -per se a divine union, if a sundering of the parties under any circumstances is a violation of a divine command, it follows that the capital punishment of a murderer, if he is a married man, is a violation of divine law, for certainly it is an absolute and com- plete sundering of the parties ; and, as imprisonment for crime involves a temporary or permanent separa- tion of the parties, that too must be wrong. Interpreted in like manner, the commands, " Thou shalt not kill," " Resist not evil," might render it murder to defend one's self from a midnight assassin. Marriage is intended to be the union for life of two persons with common interests and mutual aifections. By the act of marriage the parties solemnly covenant to love, honor, and cherish each other, and to keep in- violate their mutual vows of chastity. The husband further covenants to protect and maintain his wife, and the wife to obey her husband in all reasonable and proper things. If marriage is what it ought to be, around the nuptial altar, the cradle, the nursery, the home fireside, cluster the purest, tenderest, and strongest of human affections. Such a marriage is indeed a divine union, and, while the husband, in the service of his country or for other purposes, may be called to leave his wife, any separation for the pur- pose of separation, is, under such circumstances, a vio- lation of the command, "What God hath joined to- gether let no man put asunder." But where, one party being innocent, marriage is to the other only a THE DIVORCE QUESTION. 147 means of gratifying avarice or lust ; where instead of of love there is hatred, instead of honor, insult, instead of protection, blows, instead of maintenance, neglect and desertion ; where libertines or harlots have usurped the lawfid place of husband or wife ; where the ties that unite the parties have become clanking chains binding a putrid carcass to a living soul, who can say that a severance of such chains is a violation of moraJ law ? Such marriages are not made in heaven ; they savor of a far different place ; and it is a libel upon Deity to say that God hath joined the parties together. It is said that marriage is a religious as well as a legal ceremony ; that it is a sacrament, an indissoluble union. Nine tenths of those who make this objection to divorce on any ground regard joining a Christian church as an indissoluble xmion, a sacrament, a reli- gious ceremony of the most solemn character, and in the Scriptures it is constantly compared to marriage ; yet no church would hesitate to sever its relations with a member who had " fallen from grace " and had become a notorious and hardened criminal. If it should refuse to do so, it would itself become an ob- ject of contempt. Why, then, should not the relation of husband and wife be dissolved when one party is innocent and the other deliberately and persistently violates the marriage covenant and tramples on aU that is sacred in the union ? Does not holding them together under such circumstances bring contempt upon the institution of marriage ? Do not sound pub- lic policy and good morals require that they should be separated, that their children should be reared un- der different influences ? Does not justice require that the innocent party should be released from a life of intolerable misery and he pe^riflitted to form new rela- tions ? 148 TALKS ABOUT LAW. A man's heart, if it is a pure one, is often a safer moral guide than his head, even though the latter may be fuU of theological lore ; and there are inconsisten- cies between preaching and practice that do honor to human nature. The good senator, in " Uncle Tom's Cabin," who voted for the Fugitive Slave Law, at the risk of his political future and of heavy fine and long imprisonment, drove all night through the mire and rain to put a hunted woman and her helpless babe beyond the teeth of the blood-hounds. The di- vorce question sometimes occasions similar inconsis- tencies. On Sunday the good minister denounces divorce as destructive of the marriage relation and contrary to divine law. On Monday he is called to visit a poor woman and her little children. He finds them without food, without fire, with the marks of cruel blows upon their bodies. He knows that the earnings of the husband and father are squandered in grog-shops and gambling-hells and houses of iU-fame. The spirit of Christ within him dissipates the finely spun theories of yesterday, and his hand goes deep into his pocket to buy food and fuel, and to furnish the injured wife the means of divorce from the brute that has trampled upon everything that is pure and holy in marriage. His views undergo a sudden change ; perhaps he reflects that what he has seen once, judges and lawyers see constantly, that such cases are numbered by thousands, and if he ever preaches another sermon against divorce, it will be of a far milder type. During the Middle Ages, while the power and in- fluence of the Eoman Catholic Church were greatest, absolute divorces were extremely rare, and were only to be obtained by special dispensation. Indeed, pow- THE DIVORCE QUESTION. 149 erful monarchs sometimes had great difficulty in ob- tainiag them, and among the higher and highest classes concubinage became fashionable and it would seem almost universal. As in Roman Catholic times the Church prohibited absolute divorce, as in later times the common law did not sanction it, violations of the marriage vow were necessarily winked at : adultery is not a crime at common law, although in most states statutes have been passed making it a criminal offence. Instead of a denial of divorce and a partial toleration of matrimonial offences, such as adultery and cruelty, the tendency of the present age has been towards a gradual relaxation of the restraints upon divorce, and towards the punishment of such offences as crimes or misdemeanors. Where divorce is absolutely prohibited, adultery, under certain cir- cumstances, wUl inevitably be more or less tolerated by public sentiment. There is but one state in the Union, South Carolina, where absolute divorce, whether judicial or legislative, has never been sanc- tioned. The public sentiment there may be indicated by the following quotation from an opinion of one of the judges of the supreme court of that state, although in fairness it should be said that the opinion was delivered many years ago : " Where divorces are not allowed for any cause whatever, we sometimes see men of excellent characters unfortunate in their mar- riages, and virtuous women abandoned or driven away houseless by their husbands, who would be doomed to celibacy and solitude if they did not form connections which the law does not allow, and who make excellent husbands and virtuous wives still." " Where judges can employ from the bench such lan- guage as is here quoted," says Bishop, " legislation 150 TALKS ABOUT LAW. may not unprofitably leave off theorizing and adapt itself to the actual condition in which it finds the community." The second position, that divorce should be granted only for adultery, is held by many excellent people, mainly upon scriptural grounds. The words of Christ,^ " It hath been said, Whosoever shall put away his wife, let him give her a writing of divorcement : But I say unto you. That whosoever shall put away his wife, sav- ing for the cause of fornication (adultery), causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery " — are fre- quently quoted as an unanswerable objection to' all modern divorces for any other cause. The principles of morality, it is said, are eternal, and if a given divorce was wrong two thousand years ago the same kind of divorce is wrong now. Perhaps so ; but law- makers and moralists should take into account the mental, moral, social, and political conditions of those for whom laws are made. Moses did this, Paul did this, Christ did this; and the self-styled "divorce reformers " can claim no monopoly of wisdom. The law is made for man, not man for the law. But, even viewing the divorce question as one of theoretical ethics rather than practical legislation, of what it is intrinsically right for the individual to do instead of what human law may concede to human imperfections, and laying aside everything except the words of Christ above quoted, it by no means f oUows that the letter of ' his teachings should be adhered to if by so doing, in consequence of changes in the meaning of language or in the conditions of men, the result would be a manifest violation of their spirit and intent. The 1 Matthew V. 31. 32. THE DIVORCE QUESTION. 161 principles of morality are broad, unchangeable, eter- nal ; and, because they are so, they cannot be ad- ministered according to abstract, arbitrary, unvarying rules, regardless of all human conditions. The Golden Rule, Love to God, Love to Man, are broad princi- ples, not narrow formulas, and what would be obedi- ence to them under some circumstances would be a vio- lation of them under other circumstances. The under- lying 'principle, the spirit of Christ's words, is the divine law of divorce, applying to all nations and aU ages ; and, to discover that, it may be well to inquire whether there is anything in common between divorce as it existed in Christ's time and divorce as it exists among Christian nations to-day. The meaning of a word may be radically changed in the course of twenty centuries. Under the Roman law, which was well known in Palestine, marriage was regarded as a mere civil con- tract, which could be dissolved at the pleasure of the parties without application to the courts or other legal process. The law of Moses,^ to which the words of Christ plainly refer, was practically the same so far, and so far only, as the husband was concerned, an in- jured wife having no right of divorce. It is obvious that a system of divorce without even the Roman merit of equality between the sexes, a sys- tem that permitted a husband to cast his wife upon the world in infirmity, in sickness, in old age, with no provision for her support, with nothing except a cer- tificate of release from his control, without cause except that he hated her, or had found some uncleanness in her, of which he was sole judge, without accountability to any human tribunal, is widely different from a sys- ' ' Deuteronomy xxIt. 1-5. ' 152 TALKS ABOUT LAW. tern under which a divorce can be decreed only where there has been no connivance, collusion, or condone- ment, only by a high and disinterested tribunal, only in favor of an innocent and against a guilty party upon legal proof of the innocence of the one and the guilt of the other, and where a court has ample power to make provision for an injured wife and her minor children from the estate of the guilty husband. What is there in common between such a divorce and the arbitrary "putting away " of a wife which Christ con- demned ? It is submitted that nowhere among Chris- tian nations is divorce of the kind denounced by Christ tolerated at the present time, and that there is as little in common between Jewish and modern di- vorces, at least in England and in most of the United States, as there is between private revenge and the punishment of crimiuals in the ordinary and regular administration of justice. Indeed, it may be fairly urged that there is no Christian state at the present time whose divorce laws are as free as the rule im- pliedly sanctioned by Christ. " And the Pharisees came to him, and asked him, Is it lawful for a man to put away his wife ? tempting him. And he answered and said unto them, What did Moses command you ? And they said, Moses suffered to write a biU of di- vorcement, and to put her away. And Jesus answered and said unto them. For the hardness of your heart he wrote you this precept." ^ For the hardness of their hearts Moses suffered men to put their wives away, and, in deference to Jewish and Roman laws then in force in Palestine, Christ made no objection to the exercise of this power when the cause of complaint was adultery ; but under modern divorce laws no man 1 Mark x. 2-5. THE DIVORCE QUESTION. 153 can be judge in his own case, no man can put his wife away for any cause, neither can she be put away by any human tribunal until the statutory ground of di- Torce has been judicially proved. According to the extreme and literal interpretation of Christ's words, adultery is a proper ground for divorce, while nameless and unnatural crime is not. Such a construction is absurd if not sacrilegious. It seems to me that Christ's words were in effect a condemnation of loose sexual notions and practices, and of the injustice done to wives in arbitrarily putting them away. Among those to whom He spoke, adul- tery on the part of the wife stood for a total disregard of the marriage obligation. According to the more humane and less gross ideas that prevail in modern times and in this country, deliberate, extreme, and habitual cruelty on the part of a husband is a matri- monial offence scarcely less flagrant than adultery on the part of a wife ; and the spirit of Christ's teachings, which permitted an interested individual to put away his wife for the one, would certainly permit, not an individual, but the judicial authority of the state, to put away a husband for the other. As I write this paragraph my attention is called professionally to the case of a husband who has just stood for two hours over his wife — a woman without reproach in the com- munity in which she lives — alternately beating and kicking her, who kicked her within a week of her con- finement, and who has repeatedly threatened her life. In the name of the humanity that Christ taught is she not entitled to a complete separation ? If so, why should the law double the cruelty she has already suf- fered by forever debarring her from the felicity of a genuine marriage? 154 TALKS ABOUT LAW. If the supposed scriptural objections to divorce for adultery and other gross matrimonial offences are not well taken, if such divorces are not contrary to good morals and are founded in justice and sound public policy, the question arises : Is the third position, that divorce should be granted only on application of an innocent party, and only for gross neglect or violation of marital duty, the true one, or should a more liberal rule be applied? This, it seems to me, is the real divorce question, the point at which men of well-balanced and reflecting minds, having no preconceived theories or opinions to maintain, and viewing the subject in the many-sided lights of reason, experience, and observation, may well differ. The fourth position, the rule in force in Maine until the anti-divorce agitation caused its repeal, is that divorce should be granted whenever, in the sound discretion of the court, it would be " reasonable and proper, conducive to domestic harmony, for the good of the parties, and consistent with the peace and morality of society." Under such a statute as this, it is not necessary that either party should be free from fault or that either should be guilty of a grave matri- monial offence. It is not sufficient that they have no love for each other and desire a separation ; but, if it clearly appears that connubial bliss has turned to gall and wormwood, that the tie which unites them must inevitably be a source of utter wretchedness to them and a scandal to the community in which they live, it may be severed. Speaking of divorce under such circumstances, Lecky, in his " History of England in the Eighteenth Century," says : " At first sight nothing can appear THE DIVORCE QUESTION. 155 more monstrous than that when two persons have voluntarily entered into a contract with the single purpose of promoting their mutual happiness, when they find by experience that the effect of that contract is not happiness, but misery, and when they are both of them anxious to dissolve it, the law — whose sole legit- imate object is the happiness of the people — should interpose to prevent it. The presumption against such an interference with individual liberty must always be very weighty, and there are many considerations which tend to strengthen it. Of all forms of wretch- edness, that resulting from an unhappy marriage is perhaps the most difficult to anticipate, for it may result from a turn of disposition or an infirmity of temper which is only revealed by the most intimate knowledge. In all ages and countries a vast proportion of these life-long contracts have either been negotiated by the relations of the contracting parties, with only their nominal consent, or have been entered into at an age when there can be little knowledge of life or character, when the judgment is still unformed, or under the influence of a passion which is proverbially fitted to distort it. It is also a well recognized fact, that, as Swift says, the art of making nets is very dif- ferent from the art of making cages ; that many of the qualities peciiliarly fitted to attract men into marriage are also peculiarly unfitted to secure the happiness of a home. It may be added that, while the chances of unhappiness in this contract are so many, that unhap- piness may easily rise to an amoimt of moral misery no other condition can produce, for it extends to and embitters the minutest details of daily life, pervades every sphere, and depresses every aim. In many cases marriage involves to the weaker party a tyranny so 156 TALKS ABOUT LAW. brutal, galling, incessant, and at the same time abso- lutely hopeless, that it forms the nearest earthly type of eternal damnation. In such cases it would be much more reasonable to speak of the sacrament of divorce than of the sacrament of marriage, and it were hard to say what benefit issues from the contract, unless it be that of relieving death of half its terrors by depriv- ing life of aU its charms. Thousands of couples who, if freed from the effects of one great mistake, possess all the elements of usefulness and enjoyment, are thus condemned by the law to the total sacrifice of the happiness of their lives. Nor are the moral effects less disastrous. No condition can be more fitted to break down and degrade the moral character than that I have described. No condition can present stronger temptations. A moralist may very reasonably doubt whether even open profligacy is more debasing than a legitimate union, in which hatred has taken the place of love, and the unspoken day-dream of each partner is to witness the burial of the other." The sacrament of marriage is the union of one man and one woman, in obedience to which the man leaves his father and his mother and cleaves to his wife, and they twain become one flesh. If there is no real union, if their feelings and conditions of mind are such that a decent truce, not to say a lasting peace, is absolutely hopeless, if the tie- that unites them has become a living death to both, where is the sacrament of marriage ? how far short of blasphemy is it to say that God has joined them together? Yet in about nine tenths of the states such a condition of things is no ground for divorce, unless there is added a violation of the seventh commandment, or brutal outrage, or inhuman neglect, or habitual and gross dissipation. THE DIVORCE QUESTION. 157 The fifth position, that divorce should be granted whenever it appears " that the parties cannot live together in peace and harmony and that their welfare requires a separation," has been adopted in two or three of the United States and in some parts of Con- tinental Europe. It goes far beyond the Maine stat- ute in that it leaves out of consideration the welfare and morals of the community, and, unless interpreted with great conservatism, it may almost verge upon the sixth and seventh positions, that divorce should be granted whenever both or either of the parties ask for it. The latter views have never, so far as I am aware, received any legislative sanction in this country ; but they are not without their advocates. It is urged that there are many unfortunate marriages, many couples that make each other more or less miserable, neither being free from fault and neither being guilty of any grave matrimonial offence. Such a state of things, it is said, often leads to something far worse, and the parties are finally separated under circumstances of great scandal and disgrace, whereas, had they been quietly divorced for " incompatibility of temper," they would probably have formed new and congenial rela- tions, and would have continued respectable members of the community. The character of its citizens, especially the young, is the strength and glory of the state, and the influence of a discordant and unhappy home, at the most susceptible period of life, can hardly faU to taint or destroy moral character. Besides, say the advocates of this policy, if divorce could be had for the asking and without expense it would never become the rule ; for marriage, in a majority of cases, contributes greatly to the happiaess of both parties ; 158 TALKS ABOUT LAW. and where it does not, property interests, parental love, dread of scandal, and regard for social position, as well as moral considerations, tend powerfully to hold the parties together ; and, on the other hand, though the law may be strict, if parties are resolutely bent on a separation they rarely fail of obtaining one, and not seldom commit matrimonial ofEences or per- jury for that purpose. On the whole then, it is argued, the violations of moral law will be less, the peace and happiness of the community will be greater, children will become better men and women, and the number of divorces will not be greatly increased if divorce is comparatively unrestricted. Much of this is true, and the rest is plausible ; it presents an argument that satisfies the minds and con- sciences of many intelligent and excellent persons, an argument that cannot be dismissed with a sneer, and that would be unanswerable if marriage were like any mere business or social relation. If matrimonial dissensions often lead to something worse, it does not follow that they generally do so. Perhaps a majority of married persons occasionally have family jars, and yet on the whole live together very happily. Even if this were not so, is it not bet- ter to deny divorce until there is just cause for de- manding it as a right ? The law punishes no one for crimes not yet committed ; it gives no one a right of action upon contracts not yet violated or for wrongs not yet done ; it deals with causes as they arise : why should divorce be made an exception to this rule? Home discords can hardly faU to exert a pernicious influence upon children ; but, unless they are of a very serious character, can it be claimed that a discordant home is so much worse than none that the state is THE DIVORCE QUESTION. 159 justified in breaking it up for the benefit of the chil- dren ? If divorce were unrestricted it probably would never become the rule, but the number of divorces would be greatly increased, the stigma attaching to it would be lessened or removed, and many reaUy good and afEectionate husbands and wives, in moments of passion, jealousy, or misunderstanding, would take measures that would make their quarrels public and prevent reconciliations, whereas, were divorce under such circumstances impossible, they might and prob- ably would live happily together to the end of their days. Whatever the strength or weakness of the argu- ments in favor of unrestricted divorce, the arguments against it are overwhelming. When one of the parties to a marriage is free from fault and the other is guilty of gross and habitual violations of marital law, the in- nocent party is entitled to a divorce on the ground that no one can in justice be held to a contract which the other party utterly disregards. Even when a couple, neither being specially to blame, are so wretchedly mismated that they cannot live together without an- ticipating the torments of the damned, it seems to me — although such is not yet the law in most states — that the name of marriage is a mockery, that pub- lic policy can sanction, that humanity demands, a separation. Unrestricted divorce, divorce merely be- cause the parties wish it, is an altogether different matter. Such divorce is contrary to divine law, to the spirit and teachings of Christ, even to the average standard of morality in this country ; and, while human law cannot undertake to enforce all moral duties, it should never be subversive of them. If marriage were like any other relation public morals could not be 160 TALKS ABOUT LAW. prejudiced, and the happiness of the parties might be promoted by -decreeing a separation upon trivial grounds, or by permitting them to separate and form new relations as often as they pleased. The essence of marriage, however, is sexual union, and anything like temporary marriage, or marriage on probation, is utterly inconsistent with sexual purity. If the disso- lution of marriage is a mere matter of form and ex- pense, in what important respect does it differ from legalized concubinage ? If divorce is a necessary cer- emony and nothing more, — like the execution and recording of a deed, — what is it but the legal dis- charge of one concubine or paramour preliminary to taking another ? If this is marriage, what is there that is divine in the institution? The old rule deny- ing absolute divorce even in the most aggravated cases was productive of untold misery to individuals ; it did great injustice, for, as Aristotle has said, " Nothing is truly just which is inconsistent with humanity." But absolute prohibition, although it may bear harder upon individuals, is not and cannot be more corrupting to the morals of a community than the opposite extreme. The one degrades marriage by binding together the pure and the impure with chains that cannot be sun- dered ; the other degrades marriage by making it a relation to be discarded at pleasure. The one affords the individual no adequate protection or remedy against violence, infidelity, and neglect of aU marital duty ; the other affords society no adequate protec- tion against loose sexual notions and practices. The one is too lofty for anything but an ideal state of soci- ety, for it ignores the evil passions and propensities that abound everywhere and leaves the innocent at the mercy of the guUty ; the other is too low for anything THE DIVORCE QUESTION. 161 but a corrupt and licentious state of society, for it christens temporary unions with, the sacred name of marriage, and clothes a hideous and corrupt thing with the robes of legality. We boast of the wealth and resources of our magnificent country : the real strength of the nation lies in its homes, not such so- caUed homes as must result from mere temporary unions, misnamed marriage, but such homes as are the legitimate object and fruition of pure- and genuine marriage, homes where husband and wife become dearer to each other as their heads silver with age and the time approaches when death must separate them ; where children are born and reared, where boys are trained to be men, brave and strong, gentle and kind, honest, earnest, and true ; where girls are trained to be women, refined, pure, womanly, and where children and grandchildren gather as to a haven of love and peace. Whether divorce should free the guilty from the bond of matrimony as well as the innocent is a ques- tion upon which there is much difference of opinion. Persons for whose gross misconduct divorces have been decreed certainly have no just ground of com- plaint if they are not permitted to marry again. On the other hand, such persons frequently find new and more congenial companions, and make exemplary hus- bands and wives, and perhaps the public good may re- quire that they should not be turned loose upon so- ciety deprived of that right, for, unless they are better than the average of mankind — an absurd presumption in such cases — they almost inevitably form illicit con- nections if marriage is denied them. However wise the law and however faithfully it may be administered, injustice will frequently be done, for 162 TALKS ABOUT LAW. it is frequently impossible to distinguish truth from falsehood. When the means of procuring evidence are abundant, when a cause is sharply contested, when both sides are represented by able counsel and the wit- nesses are subjected to a cross-examination that must almost inevitably expose falsehood, the danger of an unjust decision is reduced to a minimum. Divorce causes have this peculiarity, that, unless there is ali- mony or the custody of children at stake, a thorough trial developing every material fact on both sides is exceptional ; in a majority of cases plaintiff and de- fendant desire the same thing — a separation. Under such circumstances the temptation to collusion is great and the danger that exaggeration or falsehood will be exposed is correspondingly small ; the consequence is that courts are frequently imposed upon. No way has yet been devised of preventing this abuse ; it seems to be incident to divorce law, as defalcation is to bank- ing or the making of corn whiskey to the growing of corn. There is another evil connected with the divorce question which might be more easily remedied. It is the great diversity of statutes in the different states. We are one nation, one people, and now that slavery is a thing of the past, we are daily becoming more united and harmonious. Our language, our literature, our traditions, our interests, ou^virtues, and our vices are the same. With the exception of Louisiana, our common law, the great bulk and body of our law, is substantially the same throughout the country. Yet, for most legal purposes, each state is an independent nation, and our statute laws, especially those upon the subject of divorce, are exceedingly diverse. There is no reason why differences of opinion on this subject THE DIVORCE QUESTION. 163 should be affected by sectional lines, and it would seem that conference, discussion, and agitation might lead to greater uniformity. If the divorce laws could be relaxed in some states and made more rigid in others, the result being substantial uniformity, dodging from state to state in order to claim a domicile for the pur- poses of divorce would be prevented, courts would be relieved of a perplexing class of cases, many persons would be freed from doubt as to their real status, and a notable thing would be done in honor of mar- riage. CHAPTER XVm. HUSBAND AND WIFE.^ Until recently the rights of husband and wife, both in England and in this country, were determined almost exclusively by the rules of the common law. In this respect, as in some others, its claim to be " the noblest of sciences and the perfection of human reason " seems at least questionable. At common law the husband and wife were almost literally " one flesh," her legal existence as well as her name being merged in his. The law made two one simply by blotting out one. The husband was styled the baron, or lord ; the wife, theyeme covert, or woman under protection and authority. As a rule, to which there were some exceptions, she could neither acquire nor dispose of property. Her husband was entitled alike to her earnings and to her savings. Generally speaking she was incapable of makiag any contract or of entering into any binding engagement. It has been held (though upon this question there is a serious conflict of authority) that she could not bind herseK to pay for her own food, even though she were living separate from her husband by mutual consent and were in the enjoyment of an ample income provided by him ^ Portions of this cliapter are taken from an article entitled Legal Rights of Married Women in New Hampshire, which I wrote some years ago for a local magazine. HUSBAND AND WIFE. 165 for her maintenance. If her husband, however, were an alien enemy, or had been banished from the realm, or had been transported or imprisoned for life or for a long term of years, she was permitted to make con- tracts as though she were single ; and by the custom of London, and by local custom in a few of the United States, a married woman might, with her husband's consent, engage in trade such as is usually carried on by women, and if she did so, contracts incidental and necessary to the business were held valid. As she was not, generally speaking, bound by her agreements, and as her husband was not bound by them, others were not bound by their agreements with her. Upon marriage the husband became entitled : — 1st. To aU his wife's goods and chattels, to the Bible in her closet, and to the clothes upon her back. They were his to use, to sell, to give away, to dispose of as he pleased during his life, and at his death (with the exception of her clothes and ornaments, her para- phernalia), by will also, as absolutely as if he had himself earned or inherited them. 2d. To aU his wife's choses in action, a technical phrase which includes bonds, mortgages, notes, drafts, bills, book accounts, and, in a word, aU credits and evidence thereof. On reducing these to his own possession or control, which he had a right to do at any time during her life, they became absolutely his. In case she died before he had reduced them to his possession, he, having a right to administer upon her estate, was not only entitled to recover them as admin- istrator, but when recovered they became his, subject only to the payment of her debts. 3d. To her chattels real, which included rights in real estate less than a life interest. These, unless 166 TALKS ABOUT LAW. barred by a marriage settlement, he could sell, assign, mortgage, or otherwise dispose of as he pleased by any act during his life ; but not by wiU. 4th. To the rents and profits of all real estate in which she had a life interest, during their joint lives ; or, in case it was for the life of some other person, then during the joint lives of himself and that, other person. 6th. To the rents and profits of all real estate owned by her in fee simple, during their joint lives ; and if a child had been born of the marriage, during the remainder of the husband's life if he survived her. The latter right still exists in many if not in most of the United States, and is known as tenancy by the curtesy of England. To entitle the husband to curtesy, the child must have been born alive ; if born alive, though it lived but an instant of time, the right attached. Briefly, then, and with few exceptions, the husband by marriage became the absolute owner of his wife's personal property and the owner of her real estate during his life, if a child had been born of the mar- riage, otherwise during their joint lives. He became not only the owner of her property, but also the guardian of her person. In the exercise of a reasonable discretion, he could restrain her liberty, and, as in the case of a minor child, administer moder- ate corporal punishment ; but of late years the com- mon-law right of administering corporal punishment upon an offending wife has been greatly restricted by the English courts : in some of the United States it has never been recognized, in others it is held to be obsolete, and in stiU others it has been so modified by the growth of more liberal ideas that practically it amounts to nothing. HUSBAND AND WIFE. 167 In return for these rights and privileges, the common law imposed upon the husband corresponding obliga- tions. It held him responsible for his wife's conduct to a far greater extent than it did for the conduct of his children. It held him responsible for all wrongs and injuries done by her to the person or property of another, whether intentionally or through negligence, though done without his knowledge or in violation of his commands, and iu default of payment he was liable to arrest and imprisonment both on mesne process and on execution. The common law has never recognized a similar liability for the acts of a minor child, or even, tmless known to be vicious, for those of domestic animals. If husband and wife joined in the commission of a robbery or other felony except treason or murder, the man was hung and the woman went unpunished. The law presumed her to be under his control and authority, and held her guiltless as it would the horse that bore him to and from the scene of crime. Unless it could be proved beyond a reasonable doubt that she acted independently of her husband and was in no way in- fluenced by him, she could not be convicted. Such a presumption existed only in favor of a wife ; a child or a servant was not absolved from crime committed in obedience to the commands, or even in terror of the threats, of the parent or master. When we consider how generally female criminals are associated with those who are their husbands, or who pass for such, and that less than one hundred years ago there were two hundred and twenty-three capital crimes known to English law, we can well imagine that not seldom a woman's life depended upon the validity of her marriage. Two crimes, however, — treason and mur- 168 TALKS ABOUT LAW. der, — were exempted from this rule; and while a man who killed his wife was guilty only of murder and was drawn and hanged, a woman who killed her husband was guilty of treason against her lord and master, petit treason, and was subjected to the same punishment as if she had killed the king, that is, she was drawn and burned alive. Misdemeanors, or petty offences below the rank of crimes, were also exceptions to this rule, and in prosecution for keeping a house of ill-fame the wife, rather than the husband, was presumed to be the guilty party, During marriage the husband was liable for all debts contracted by his wife before marriage. This liability did not depend in the slightest degree upon his having received property from his wife. It was not uncommon for a woman to obtain large credits on the prospect of a wealthy match, and sometimes a man was ruined by marrying a woman deeply in debt. Husband and wife were liable to be sued jointly upon such debts, and to be imprisoned together ; but if the husband absconded or broke jail the wife was entitled to her liberty, for she could not be imprisoned on civil process separately from her husband. His liability to pay her debts contracted before marriage ceased with her death. A man might marry a woman with a large fortune ; upon reducing it to his possession the fortune became his, and if his wife died before her debts were paid he held the fortime free from the dfebts, even that part of it for which the debts were contracted, and the creditors might whistle for their pay. This was well-settled law for seven or eight hundred years, and untU recent times. The husband was (and still is) bound to furnish his wife at his own home with a decent maintenance HUSBAND AND WIFE. 169 according to his position and circumstances in life, and if he drove her therefrom by cruel treatment or otherwise, he was bound to pay for such necessaries as others should supply to her. In this connection it may be remarked that publication by the husband that he wUl not pay for such necessaries has no legal effect, even though it is read by the person who after- wards supplies them; for the common law, with all its injustice to women, does not and never did permit a husband without cause to drive his wife from home to subsist upon the charity of others. Whenever he fails to provide for her at his home, or drives her away, or so conducts himself as to justify her in leav- ing him, he is liable for necessaries furnished her, though they are furnished in violation of his express commands. A man can, however, prohibit any par- ticular person or persons from furnishing his wife nec- essaries upon his credit, provided it would not in effect prevent her from obtaining them elsewhere ; as he is bound to support her he has a right to determine where she shall trade. A husband cannot be charged for goods furnished his wife without his consent, either express or implied, unless they are necessary for her to have ; food and clothing are not necessaries to a person whose wants in this respect are abundantly supplied ; and, on the other hand, articles of a far less essential character may be and sometimes are necessaries. Husband and wife take each other " for richer or for poorer." As a wife is compelled to share her husband's adversity, she is entitled to share his prosperity. The mainte- nance to which she has a right must correspond in some degree to his wealth and position. If the wife of a man having an income of five hundred dollars a year 170 TALKS ABOUT LAW. could run him in dett against his will for sealskin sacques and velvet dresses, she could ruin him at any- time. If a man with an income of a million dollars a year coidd turn his wife out of doors and be respon- sible only for the cost of things essential to existence, he could deprive her of all the pleasures and privileges to which she, as the wife of a rich man, has both a legal and a moral right. So, too, a wealthy English noble, living in state and occupied with the political and social duties incident to his rank, would be bound to provide for his wife very differently from a cattle king of equal wealth, living with his wife hundreds of miles from civilized people, for things that would be in a sense necessary in the one case would be ridicu- lously out of place in the other. No man is required to provide for his wife better than he can provide for himself, or in a manner inconsistent with his and her surroundings ; and no man is permitted to humiliate and insult his wife by maintaining her in a manner altogether inferior to his means, his position, and the reasonable demands of the society in which he moves. In a word, necessaries, as the term is here used, does not mean things essential to existence, but may or may not include a great deal more according to the circumstances of each case. A man has a right to the presence and society of his wife as long as he treats her well, and if she abandons him without cause he will not be liable for necessaries furnished her while absent; and if she abandons him and commits adultery, and afterwards repents and returns, he may decline to receive her. The common-law rule that a wife can bind her hus- band only for necessaries, and for those only when she has not left him without cause, does not apply if he HUSBAND AND WIFE. 171 by his words or conduct give other persons reason to believe that he has authorized her to trade with them. In such cases she is considered as an agent, and as an agent, not as a wife, her acts are binding upon him. Wives often, perhaps generally, buy goods, luxuries as well as necessaries, and have them charged to their husbands. If a husband pays such bills without ob- jection, especially if he does so repeatedly, the author- ity of the wife to contract similar bills in the future will be inferred. If he finds that she is buying arti- cles which he cannot afford to pay for, he must give those with whom she has been accustomed to trade notice that her authority to buy upon his credit has been revoked or limited. At the husband's death the widow was entitled, any will to the contrary notwithstanding, to the rents and profits of one third part in value of all improved lands owned by him during their marriage. This was known as dower, sometimes called by farmers " the widow's thirds," and it did not attach to wild lands. The widow was also entitled to a forty days' residence in her husband's mansion-house, and to her wearing apparel and personal ornaments, unless they were of extraordinary value and out of keeping with her cir- cumstances and condition in life. If her husband died intestate, leaving a child or children, she was entitled to one third part of the personal property ; if he died intestate and childless she was entitled to one half. The father was the legal guardian of his minor chUdren, and was entitled to their services, earnings, and obedience in preference to the mother, unless by decree of court he had been deprived of his parental rights on account of cruelty, immorality, or other sufficient cawse. If the father died the mother sue- 172 TALKS ABOUT LAW. ceeded to his parental rights during her widowhood. If she married again she lost her right to the custody of her children, for she came under the authority of a second husband, and for most legal purposes her ex- istence was merged in his. Aside from the advantage that possession may give, neither mother nor step- father under such circumstances had a legal claim to the custody of the children superior to the claims of mere strangers. This rule of the common law re- mains unchanged in some, perhaps in all, of the United States. It is sufficiently harsh; but it is harsher in appearance than in reality, for, if children lost their natural guardians, the one by death and the other by marriage, a court on application to have a guardian appointed would consult the interests and feelings of children and mother, and, if the step-father were a suitable person and were willing to accept the trust, would, under ordinary circumstances, appoint him as a matter of course. At common law husband and wife could not, with some exceptions, be witnesses for or against each other in criminal prosecutions ; neither could they in civil suits, as thereby, says one of the old cases, the founda^ tions of society would be shaken. In case the wife were defamed, wronged, or injured, suit was brought either in their joint names or in the husband's alone, according to the nature of the action, and the dam- ages recovered belonged to the husband. In case the wife were disabled by the negligence or wrong of another, the husband had a right of action for the value of her services ; but if the husband were so dis- abled, the wife had no right of action for the value of her support and maintenance. The husband was master and was entitled to his wife's services; the HUSBAND AND WIFE. 173 wife was the servant and her lord could sue for him- self. Such, very briefly stated, are some of the leading principles of the common law in regard to husband and wife. Of course, extending as they naturally must to an almost infinite variety of property and other interests, and supplemented by numberless minor rules and exceptions, they formed an important branch of the law, and became the subject of learned treatises and a vast body of decisions. Sometimes in this country, often in England, especially among the higher classes, they were varied by marriage settle- ments, deeds of trust and antenuptial contracts, which could be enforced either in law or in equity according to their nature and the circumstances of the case. Under certaiu circumstances, too, courts of equity had power to restrain husbands from an unjust, cruel, and tyrannical exercise of their legal rights ; but such cir- cumstances were exceptional, and are not within the scope of a brief sketch like this. The position of a married woman at common law was one of vassalage to the authority and dependence upon the protection of her baron or lord. Often, doubtless, in feudal times even as now she was in fact his beloved companion, his equal, sometimes his ac- knowledged superior; but in contemplation of law, until recently, she, with the exception of a right to an honorable maintenance, held a position interme- diate between that of a minor child and a domestic animal. By a series of statutes, some of which are very recent and nearly all of which have been passed since about the year 1850, the law of husband and wife has been largely revolutionized in England and in America. 174 TALKS ABOUT LAW. These statutes cannot be spoken of in detail here ; but as they resemble each other in many states and are almost identical in some, the effects of some of the most important and most widely adopted may be men- tioned. The husband's common-law liability for debts con- tracted by his wife before marriage, and for wrongs done by her after marriage, has been generally, if not everywhere, removed. The rule that a married woman cannot be convicted of a crime unless it was committed independently of her husband has been in many states either abolished by statute or modified by judicial de- cision. The husband is still the head of the family, but his powers are less despotic than formerly. Gen- erally speaking, husband and wife have been placed on a footing of substantial equality so far as property rights are concerned, — the wife holding her property as absolutely and as independently as her husband holds his property ; it being hers as fully as his is his, to invest, to spend, to give away, to dispose of by will. Neither can give a clear title to real estate without the signature of the other. With this exception, neither has any control over the property of the other during the life of both ; but at the death of either, the survivor has rights in the estate of which he or she cannot be deprived by will. In most, if not in all of the states, the rights of such survivor are now compare^ tively unaffected by sex ; for, generally speaking, the widow's common-law rights have been preserved and statutory rights have been added, while the widower's common-law rights have been greatly restricted and the statutory rights that have been added are by no means equivalent to the rights that have been taken away. HUSBAND AND WIFE. 175 While the property rights of a married woman are now in most states substantially the same as those of her husband, his common-law liabUity to maintain her remains in full force. If he is a rich man or earns a large income, he is bound to maintain her liber- ally ; while, if she has a large income, she can bank every dollar of it and compel him to support her ac- cording to his circumstances and position in life. In some states the wife, while free to make contracts on her own account, is protected from all liability upon any undertaking for her husband's benefit ; in other states this exemption does not exist. In a few states restrictions merely incident to the marriage relation have been so completely swept away that husband and wife can make valid contracts with each other and sue each other. As a whole, these statutes have made far greater changes in the law of husband and wife since the mid- dle of the present century than were made in the pre- ceding five hundred years. From a servant, almost a slave, the wife has become the companion — and un- less special privileges and exemptions imply inferior- ity — the equal of her husband. The common law upon this subject originated in and was well adapted to those turbulent times when might made right and the sword was law. Strong in precedent, honorable in the authority of centuries, and cherished in the tradi- tions of a learned profession, it continued in existence long after its harshness had been mitigated by the usages, manners, and morals of a more just and refined age ; and when, at length, a legal revolution came, it had been preceded, it was caused, by such a change in public sentiment, that the foundations of society re- mained unshaken and undisturbed. CHAPTER XIX. PAKENT AND CHILD. " A PARENT is under no legal obligation, indepen- dent of statutory law, to maintain his minor child." ^ This statement may seem a startling one to the non- professional reader, and contrary to his ideas of nat- ural justice. If it is true that " nothing is really set- tled until it is settled right," it may not perhaps be regarded as settled law. It has been qualified, doubted, denied, or repudiated in judicial decisions, and by legal writers of great eminence, including Chancellor Kent ; but in the 12th edition of Kent's Commentaries, the learned editor, Oliver Wendell Holmes, Jr., seems to consider the views of his author erroneous, and cites contrary opinions as established law, and, upon the whole, such opinions appear to be sustained by the weight of authority, both in England and in this coun- try. " The duty of parents to provide for their chil- dren," says Blackstone, " is a principle of natural law." "It is 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. And thus the chil- dren have a perfect right of receiving maintenance 1 Eelley v. Daois, 49 N. H. 187. > PARENT AND CHILD. 177 from their parents." " But," says Wendell, " the com- mon law of England never afforded any means of en- forcing this right ; " and Chitty says : " There is no legal obligation on a parent to maintain his child in- dependent of the statutes, and therefore a third person who may relieve the latter, even from absolute want, cannot sue the parent for reasonable remuneration un- less he expressly or impliedly contracted to pay." In Mortimer v. Wright ^ Lord Abinger said : " In point of law, a father who gives no authority and enters into no contract is no more liable for goods supplied to his son than a brother, or an uncle, or a mere stranger would be. The moral obligation on the father to maintain his child affords no inference of a legal promise to pay his debts. To bind the father in point of law, you must prove that he consented to be bound, just in the same manner as you would prove such a contract against any other person." " If a father," says Chief Justice Jervis, " 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." Of course, if the father by his words or his conduct gives others to understand that his children are permitted to trade with them on his credit, an- other principle will apply, and he wiU be bound to pay for goods so furnished whether they are necessaries or not, at least if the trader acts in good faith and does not make such express or implied permission a pretext for furnishing goods unreasonable in character, value, or amount. Under such circumstances, though no promise is made in express words, the law implies a 1 6 M. & W. 482. 12 178 TALKS ABOUT LAW. promise, and juries, if they possibly can, are very apt to find such circumstances, especially if the goods sold are within the means of the father and suitable for the chUd. By statute, in England and in all or nearly aU of the United States, parents, if of sufficient ability, are made liable to the parish, town, or county for the support of their children, and children for the sup- port of their parents, whenever they become public charges as paupers. Such provisions, generally speak- ing, apply only to parish, town, or county paupers, and are equally binding on grandparents and grandchil- dren. Briefly, then, a father, whatever his wealth, is under no common-law obligation to spend a single dol- lar for the support of his minor children ; equally with any stranger, he can leave them to perish of cold and hunger. Further, he is, generally speaking, under no statutory obligation to maintain them except as pau- pers, and he can be forced to do this only for the ben- efit of the tax-payers, not for the benefit of the chil- dren themselves. I have thought it better, as a rule, not to cumber these chapters with citations of author- ity ; in the present instance I have cited a few of the leading ones, because the law as stated above is so dif- ferent from what people in general suppose it is. A father is not legally responsible for a tort or wrong committed by his minor child. Of course, if he directs or commands the child to do a wrongful act, he is liable as if he had done it himself ; and if the child is engaged in his father's service, and the wrongful act is within the scope of his employment, the father is liable on account of the relationship of master and servant which exists between them : but while he is liable at common law for all torts or wrongs committed by his wife, and in many cases for PARENT AND CHILD. 179 injuries done by his domestic animals, he is in no case liable either for the wilful misconduct or the negli- gence of his minor child unless the circumstances are such that he would be equally liable if there were no blood relationship between them. If a child too young to be responsible for its own acts, iu playing with matches, for example, should set fire to a building, neither the owner nor the insurer could maintain a suit. It would be what in law is termed damnum, ahsque injuria, damage without injury, something for which no one is to blame, and the loss would rest wherever it happened to fall, unless, indeed, the matches were carelessly or maliciously given to the child, in which case the person giving them, whether the father or a stranger, would be liable for the nat- ural and probable consequences. If a child, however, is old enough and intelligent enough to distinguish right from wrong and to be capable of care, or, in other words, to be responsible for his own acts, he is liable alike for the consequences of wilful miscon- duct and for those of negligence, and his minority is no defence, as it often is in cases of contract. As long as a father suitably provides for and main- tains his minor children, he is entitled to their earn- ings, and to the care, custody, and control of their persons. They are bound to obey all his reasonable requirements, and, in the exercise of a just discretion and without undue severity, he has the right to punish them for disobedience and misconduct. Subject to a greater or less extent to statutes regulating the policy and discipline of public schools, he has a right to de- termine how they shall be educated. It is also his right to determine in what religious faith they shall be trained ; and it has been held that a clergyman has 180 TALKS ABOUT LAW. no right, contrary to the commands of the father, to receive a minor child, under his immediate guardian- ship, from the church of which he was a member, and in which the child was baptized and instructed, and initiate her by baptism into a church of another denomination. As stated in the preceding chapter, the rights of the father in these respects are para- mount to those of the mother. They exist, however, only so long as the father provides, or endeavors to provide, for the more pressing needs, at least, of the child ; they may be forfeited by gross neglect or abuse, and in such cases the care and custody of the child wiU be given to another if its interests mani- festly require it. A father can g^ve his minor child away, or, in other words, transfer his parental rights and duties to another. In order to be irrevocable, this must be done by deed, that is, by a sealed instrument. If the transfer is made orally or by a writing not under seal, the father can revoke it and take back his child, upon paying or tendering a reasonable and sufficient compensation for the care, maintenance, and education bestowed upon it, with interest. This right, however, is subject to qualification. If a father should give his new-born babe away, if the persons to whom it were given should keep it for a series of years, if they should care for it, maintain it, educate it, become at- tached to it as if it were their own, if their affection should be reciprocated by the child and it should desire to remain with them, if they were able and willing to provide for its present and future interests as well or better than the father could, and were as weU qualified to have charge of its mental and moral training, — under such circumstances a court of equity woidd in- PARENT AND CHILD. 181 terfere, and the father would not be permitted to take the child. The vital and permanent interests of a child will not be sacrificed to what, under ordinary circumstances, would be the legal rights of the parent. As a father is entitled to the services and earnings of his child during minority, he has power — subject to the above qualification, a due regard for the wel- fare of the child — to bind him out to apprenticeship ; and, if he provides for the child, can in his own name maintain a suit for wages earned by the child. If an unemancipated child is injured through the negligence or fault of another, the father can recover for loss of time and earnings, and for necessary care, medical at- tendance, and the like ; but not for the physical and mental suffering and permanent disability of the child, for the latter, in the name of his guardian or next friend, can recover for injuries personal to himself. If a minor child is wrongfully persuaded to leave the service of his father, an action may be maintained for damages. As a child approaches majority he maybe and often is a source of considerable income to his father. This the father may relinquish by emancipation, that is, he may give the child his time and the right to his earnings during the remainder of his minority. Generally speaking, an insolvent person cannot make a gift to the prejudice of his creditors. The law re- quires that a man shall be just before he is generous, and does not permit him to give away property, if what remains is insufficient to pay existing debts ; but time is not property, although the use of it may produce property. The time and talents of a debtor are not attachable and his person cannot be sold on execution. As long as he does not become a criminal, a vagrant, 182 TALKS ABOUT LAW. or a pauper, lie cannot be compelled to labor against his will. If he could be compelled to do so for the benefit of others, he would be reduced to a condition of qualified slavery. As the law does not compel him to work for the benefit of his creditors, so he is not bound to make his children work for their benefit. Subject to the limitations already stated, their time is his ; but it is not property, and he has the same right to allow them to spend it in study, or in idleness, or to give it to them to earn money for themselves, as he has to spend his own time in idleness, or in unremu- nerative employment, or in earning money to spend as fast as it is earned. If the law were otherwise, the child would be in a qualified sense a slave. He would be no longer a child subject to the authority of a parent who is presumed to love him and to be solici- tous for his good ; for he would be doomed to idleness or comparatively unremunerative employment, or else he would be to some extent a chattel, subject against his wiU and against his father's wUl to those whose only interest would be to get as much as possible out of him. " The law does not contemplate the subjec- tion of the child to any person not standing in loco parentis," says the court in a New Hampshire case. " The consequences to the child of denying the fa- ther's power to relinquish his right to the child's fu- ture earnings would often prove extremely pernicious. If a son anticipates that his wages will be applied, against his father's wiU, to pay his father's debts, it is hardly probable that he will labor with much vigor, or earn anything above his support. The creditors will generally gain nothing ; but the son may be ruined by the absence, at the most important time of his life, of some of the strongest incentives to the for. mation of industrious habits." ^ PARENT AND CHILD. 183 If a parent dies and leaves no will, the living chil- dren and the descendants of deceased children take the entire property, except the portion that goes at common law or by statute to the surviving husband or wife. A parent, however (even a married woman, now that a married woman can make a will), has ab- solute power to disinherit a child, — to cut him off at pleasure without a cent. The popular idea that the child must be given at least a nominal sum, as a dollar or a shiUing, is incorrect, and probably arises from the rule that, unless the child is mentioned in the will, the law will presume that he has been forgotten or omitted by mistake, and he wiU take what he would have been entitled to if there had been no will. It is sometimes said that a parent ought to be permitted to disinherit his children, because the property is his, not theirs, and if he were prevented from disposing of it as he pleased his liberty would be interfered with, and one of the strongest motives to industry would be taken away; but a husband has never been permitted by will to deprive his wife of a share in his estate, and, now that a wife is authorized by statute to make a will, the same rule applies to her. Perhaps a better reason is that children, who would not minister to the comfort and happiness of aged and infirm parents from motives of affection, may be led to do so from motives of a more selfish nature. It is further urged that a par- ent ought to be free to decide who have the strongest claims on his bounty, to give his property to the most capable, the most deserving, or the most needy among his children, to disinherit a profligate or unfilial child without being compelled to assign a cause that would disgrace the child, and almost inevitably involve the estate in litigation. " Children," says Chancellor 184 TALKS ABOUT LAW. Kent, " are deemed to have sufficient security in the natural affection of parents that this unlimited power of disposition will not be abused." It may, however, be at least an open question if " this unlimited power of disposition" is not often abused. As persons ap- proach their second childhood they become in many cases exceedingly liable to undue influence, especially in a country like this, where children are so frequently settled at a great distance from the family roof, and ■where such striking changes in modes of thought and living take place in the course of a single generation. Among the civilized and semi-civilized nations of an- tiquity the power of a father in his own household was almost unlimited. The Persians, Egyptians, Greeks, Gauls, and Romans tolerated infanticide. The Roman father, as late as the time of Augustus, had the power of life and death over his children, a power not to be exercised in a wanton and arbitrary manner, but as a sort of domestic court. Neither the law of Athens nor of Rome, however, permitted a parent to wholly disinherit a child, except upon legal proof of unfilial, profligate, or criminal conduct ; and this rule is still in force in most countries where the Roman or civil law is the basis of jurisprudence, as the common law is with us. The law of Athens and of Rome permitted a father by will to dispose of a portion of his property as he pleased ; it permitted him to take the life of his new-born babe ; but it did not — as the law of Christian England and America does — permit him to rear his babe to manhood, in luxury and with great expectations, and then, to gratify a whim or a prejudice, cast him destitute upon the world. Under what circumstances minor children can make PARENT AND CHILD. 185 contracts and to what extent they are bound by them, is a very interesting and important subject, but one more appropriate to the title of infancy or of contracts than to that of parent and child. Scanty as the legal claims of legitimate children upon their parents may be, they are far greater than those of the unfortunate persons whom the law re- gards as the children of no one. At common law, an illegitimate child is one that is born out of lawful wedlock, or, if the mother is married, under such cir- cumstances that the husband cannot be the father. If the child is born out of wedlock, it remains ille- gitimate, although the parents afterwards marry and recognize it as their own. This rule of the com- mon law has been abolished by statute in several states, and is contrary to that of the Roman or civil law, under which, if the parents afterwards married, the child became legitimate, not merely from the date of the marriage, but from the date of its birth. In some states, by statute, an illegitimate child can inherit from his mother, and probably in all his par- ents may be compelled to indemnify the public against his support as a pauper ; but, at common law, al- though he can take property given him by will, he can be the heir-at-law of no one except his children and their descendants. He can have neither parents nor grandparents, neither brother nor sister, neither uncles, aunts, nor cousins. He may have an illustri- ous line of descendants ; he can have no ancestors, no relatives except those that spring from him. His family originates with him as much as if he were Adam himself ; he is nullius filius, the son of no one. CHAPTER XX. GUAHDIAN AND WAED. A GUARDIAN is One who is legally invested with the care and custody of the person or estate of another. There are, or were, three kinds of guardianship of minors at common law ; by nature, by nurture, and by socage. Guardianship by nature is merely the parental right to the custody of minor children, which has already been considered under the title of parent and chUd. The father is the natural guardian, and, as such, has all and more than aU of the powers of an appointed guardian, so far as the persons of his children are concerned ; but the relationship gives him no control over their property. Guardianship by nurture is also exclusively a paren- tal right. It extends only to the person, and may be termed an inferior kind of guardianship by nature, as it is, for all practical purposes, merged in the latter. Unlike guardianship by nature, it terminates when the child reaches the age of fourteen years. It applies only to younger children who are not heirs apparent, and it is therefore unknown in this country, where all children inherit equally. Guardianship by socage extends, or rather extended, to the inherited lands of the ward, as well as to his person. On arriving at the age of fourteen years he GUARDIAN AND WARD. 187 might terminate it by choosing another guardian. It was given to the next of kin who could not possibly inherit, the policy of the law being to exclude those from the trust who might be benefited by the ward's death. The civil or Koman law, on the other hand, gave a similar guardianship to the person who would inherit, on the ground that he would be most interested in preserving and increasing the estate ; while the law of Scotland and the ancient law of France divided the trust, giving the custody of the ward's person to the one and the custody of his property to the other. Such precautions, as Chancellor Kent has remarked, seem to be foimded " on too great a distrust of the ordinary integrity of mankind." Whatever occasion there might have been for them in a very corrupt, or in a feudal and semi-barbarous age, at the present time courts do not consider a man necessarily unfit to have charge of a child's property merely because he has no interest in it as heir expectant, or to have charge of a child's person merely because he might be enriched by the child's death. Guardianship by socage is practically obsolete and is superseded by statutory forms of guardianship. Under a statute of the time of Charles II., which has been generally adopted in this country, a father may by will nominate a guardian over the persons of his children and over the estate which he bequeaths to them, and such guardianship may continue until they are of age, unless they are daughters, in which case it is termi- nated, so far at least as their persons are concerned, by their marriage. This is called testamentary guardian- ship, and, if the will directs it, such a guardian may have more than the usual powers, and be exempt from the usual restrictions in regard to investments and giving bonds. 188 TALKS ABOUT LAW. In by far the greater number of cases, however, at the present time, guardians are appointed by probate or by equity courts, under statutory powers. Such guardianship may be either of the person, or of the estate, or of both. Those who, by relationship, mutual affection, or other special qualifications, are the best fitted to have the care of a child's person, are not always the most competent to manage his property; and therefore courts sometimes commit the guardianship of the person to one, of the estate to another. Guardians of the person merely are neither required to give bonds, nor, unless accused of misconduct, to account to the court for the way in which they perform their trust. Guardians of the estate, judicially appointed, unless excused by will or other instrument, are always required to give bonds. They are under the constant supervi- sion of, and are strictly accountable to, the court from which they derive their trust. If acting under a merely judicial appointment, they cannot sell real estate without special license from the court. The first object being security, they are limited to the most conservative investments. In some states only real estate and government securities are allowed. In other states the rule is less strict. In Massachusetts the guardian is held only to good faith and sound discretion. Other considerations being equal, home investments are always preferred to those at a distance. A guardian who exercises good faith, due diligence, and sound discretion, and who invests in approved securities, is not personally responsible for losses ; but, generally speaking, if any one of these elements is wanting, he will be responsible. For example : A guardian might have great confidence in a newly dis- GUARDIAN AND WARD. 189 covered gold mine, lie might believe that it would return an investment a thousand fold, and, preferring his ward's interest to his own, he might out of pure generosity and affection yield the golden opportunity to him. Nevertheless, if the investment should prove unfortunate, even though it were made at the request of the ward, the guardian would have to bear the loss. A man has the right to invest his own money in enter- prises promising extraordinary profits and attended by more than ordinary risks ; he has no right, however, to so invest trust funds (unless empowered to do so by the testator or other person from whom he derives them), and the consent of those who are legally in- capable of conducting their own affairs is of no effect. The above would be an extreme case ; the principle extends much further, that is, to investments of a far less hazardous character. If a guardian invests his ward's money in trade, or in any enterprise attended with even the ordinary business risks, if the invest- ment is unsuccesful he is liable for all the losses ; if successful the ward is entitled to all the profits. In investing a ward's money the law makes the rate of interest or income subordinate to the safety of the principal ; if the guardian reverses the rule, he does so at his perU. He cannot, however, shirk his respon- sibility by letting it remain idle ; if he does so, or mingles it with his own and uses it, he will be liable to pay interest, in some cases compound interest. If a guardian, by a want of due diligence, fails to collect money due to his ward, he is personally liable for the loss, and if he is guilty of wilful misconduct he may be assessed in some states in double or even in treble damages. Transactions between guardian and ward immediately following the latter's majority will be 190 TALKS ABOUT LAW. closely scrutinized by the court, and any element of undue influence, imposition, or inequality will render them voidable ; for, on account of the fiduciary char- acter of the one and the youth and inexperience of the other, the parties are not considered as standing upon equal ground, and transactions between them, being liable to abuse, are regarded with suspicion and dis- favor. Briefly, a guardian is bound at his peril to care for his ward's property in good faith, diligently, discreetly, in a conservative manner, with a view first to the safety of the principal, and secondly to the rate of interest or income. If he exceeds his legal powers, he will be responsible for all losses caused thereby, and his ward will be entitled to all gains. He cannot sacrifice his ward's interests to further his own private ends, or make his trust a source of pecuniary profit to himself, aside from the compensation which the court may allow him for his trouble and responsibility. CHAPTER XXL TEACHEE AND PUPIL. In the several states there are statutes providing for the election or appointment of committees, school boards, or other officers, with authority to hire teachers and to make and enforce suitable rules and regulations for the government of public schools. Although these statutes vary considerably in detail, they have a cer- tain general resemblance, and, like all statutes, they are interpreted by the rules of the common law. The reader's attention wUl accordingly be invited to a few of the decisions relative to the power of such school officers, and of teachers acting imder their au- thority, to make rules and regulations, to compel at- tendance, to prescribe studies, and to punish, suspend, or expel scholars for misconduct. In this connection I wish to acknowledge my indebtedness to a recent compilation entitled " The Power and Authority of School Officers and Teachers." The little book re- ferred to can be purchased for about sixty cents, can be read in an evening, and deserves the perusal of every one having charge of a public school. The priest of a Catholic church in Brattleboro, Vt., wrote to the school committee, requesting that Catholic children should be excused from attendance on all holy days. The committee replied that the request could not be granted, as it would necessitate the closing of two 192 TALKS ABOUT LAW. schools, and would greatly interrupt several others. On the day before Corpus Christi day the children informed their teachers that, having been directed by their priest to attend divine service, they could not be present at school. The teacher replied that they coxdd not be excused. By direction of their parents and the priest about sixty children absented themselves. The committee declined to take them back without satis- factory assurance that the school should not again be interrupted in like manner. They based their action on a long established rule, requiring that scholars " should be constant and regular in their attendance, and not be absent, except by permission of the teachers or the committee, on reasonable cause shown." A suit was brought to compel the committee to take back the children, on the ground that its action was in violation of the Constitution of Vermont, guaranteeing liberty of conscience and freedom of worship without abridg- ment of civil rights, and confirming the authority of parents in regard to the moral training of their chil- dren. The court sustained the committee. A school board in Iowa made a rule that absence or tardiness, repeated a certain number of times and not satisfactorily accounted for, should be ground of suspension, and that a teacher might require a scholar to furnish a certificate or statement from his parent or guardian as to the cause of his absence or tardiness. One parent said that his boy had been absent and late because he had kept him home at work, and that he should claim the right to do so in the future, any rule to the contrary notwithstanding. Another parent said that he wanted to go a-visiting, and, as he could not leave his child alone and was too poor to hire any one to take care of her, he took her with him. The school TEACHEK AND PUPIL. 193 board suspended the children, the parents brought suits, and the court held the suspension justifiable. In an Illinois case, under a similar rule, the parents refused to give any written excuse, although the child was absent with their knowledge and consent, and the court held that suspension was reasonable and proper. Decisions similar to those already referred to have been rendered in Massachusetts, in Missouri, and in other states. In a Missouri case the court says : " The studies in our public schools are classified according to the ages and advancement of the scholars ; and the continued or repeated absence of one of a class not only is injurious to the absentee, but if allowed be- yond a certain point is calculated to demoralize those who attend, and derange the orderly instructions of the teacher. Taxes are not collected to pay teachers to sit in front of empty benches, or to hunt up truant boys." If a school board should authorize suspension for absence occasioned by violent storm, by the illness of the child, or by iUness or death in his family, the rule would be unreasonable and therefore illegal. The same is true of any rule that inflicts unnecessary suffering upon the child. A school board in Illinois directed that doors should be barred against tardy children. A small child, after walking a mile and a half on a cold winter day, found himself locked out of doors. The court promptly sustained an action, and said of the rule, " In its practical operation it amounts to little less than wanton cruelty." Rules and regulations in regard to the exercises and studies of pupils, as well as their attendance, have frequently been made subjects of litigation. A school committee in Maine directed that part of 13 194 TALKS ABOUT LAW. the daily exercises should be reading from the ordinary Protestant version of the Bible, in which aU of the scholars should join. One of them, having conscien- tious scruples, declined to take part in the exercises, unless permitted to read from the Catholic version. For this she was expelled, and, a suit having been brought, the court sustained the action of the com- mittee. The opinion, which was delivered in 1854, savors of the style of counsel having a cause to main- tain, and perhaps if the same question were to arise again the result might be different. At any rate, it seems hardly consistent with perfect religious equality before the law, and in some states there are constitu- tional or statutory provisions which would render such a decision impossible. A school committee in Massachusetts directed that all schools in town should be opened with reading the Bible and with prayer, and that during prayer all scholars should bow the head unless their parents requested that they should be excused from doing so. One of the parents refused to make such request and ordered his daughter not to comply with the rule. She was excluded, and he brought a suit. The court sustained the rule. This was in 1866. Had she been required, however, to take any active part in a reli- gious ceremony, against her conscience or that of her father, or to listen to any sectarian comments, the ride would have been void both under the constitutional and under the statute law of the state. The power of committees, boards, and other officers to make rules and regulations, and to have general management and control of schools, includes that of designating the text-books to be used. Cases may be imagined to which this power would not extend ; but, TEACHER AND PUPIL. 195 exercised in good faith, within reasonable limits, and subject to the statutory prohibitions upon frequent changes which exist in some states, it is absolute. It would be impossible for a teacher to do effective work, or to instruct any considerable number of pupils, if each were permitted to use any grammar, geography, or arithmetic that he pleased. School boards usually have power to prescribe courses of study ; but whether they may compel pupils to take all of the studies pursued by their classes, in opposition to the wishes of parents or guardians, is a question upon which courts differ. In a New Hampshire case a teacher (his acts being subsequently ratified by the committee) made a rule that the larger scholars should write compositions and declaim at regular intervals. One of the boys refused to declaim. He was given several days to consider the matter, and finally, upon his squarely refusing either to declaim or to leave the school, he was forcibly ejected. Upon suit being brought, the court held that the conduct of the teacher was justifiable, although the boy had duly notified him that he was acting under the instruction of his parents. A school board in Ohio suspended a boy until he should either study rhetoric or present an excuse for not doing so. The supreme court held that its act was reasonable and proper. The teacher of a district school in Vermont, acting under the instructions of his committee, declined to hear recitations from a boy who would not comply with the rule in regard to writing compositions. The boy left and a suit was t>rought. The court sustained the committee. An Iowa father sei^t the following notes to the 196 TALKS ABOUT LAW. teacher: "Please excuse Ada afternoons, as her health wiU not permit her to attend all the time ; " " Please excuse Ada from the algebra class, she hav- ing more lessons than she can well attend to." The teacher would not excuse Ada, and, because she would not study algebra, and on account of her "insolent and contemptuous conduct," made a vigorous appli- cation of the remedy which King Solomon prescribed for juvenile disobedience. He was prosecuted crim- inally for an assault and battery. The court sus- tained a verdict of guilty, and, at the same time, as it would seem by the following extract from the opinion, denied the father's right to have his daughter excused from attendance afternoons or from the study of al- gebra. " Instead," said the court, " of whipping the prosecutrix for failure to attend or study algebra, when both she and her father desired she should be excused, we think the defendant should have plainly said to both the prosecutrix and her father that she could not attend the school unless she were prepared to obey the rules in this respect. If a pupil attends school it must be presumed he submits himself to the rules ; but that is not this case. Until compulsory education is established we are unwilling to sanction the rule that a teacher may punish a pupil, as in this case, for not doing something the parent has requested the pupil to be excused from doing. The remedy in such case is not corporal punishment, but expulsion." In many states it is provided by statute that the- more elementary branches, such as reading, writing, arithmetic, and geography, shall be taught in the com- mon schools, and that committees shall have discre- tionary power to establish higher grades and pre- scribe more advanced studies. Where these statutes TEACHER AND PUPIL. 197 are in force, it has been held in some instances that committees may exclude pupils for not taking the studies, whether parents wish them excused or not, which the law says shall be taught, while, in regard to studies prescribed by themselves, their authority is subordinate to that of parents. There is a third class of decisions, inconsistent with either of the classes already referred to, and to the effect that a parent has a right to send his child to a public school and at the same time to demand that it be excused from one or more of the branches there taught in regular course, any rule of the school board to the contrary notwithstanding ; perhaps the leading case of this kind is Morrow v. Wood, 35 Wis. 59. A boy was punished for refusing, in obedience to his father's instructions, to study geography. At the trial of the suit that followed, the circuit court instructed the jury that " the views of the parent in that particu- lar must yield to those of the teacher ; and that the parent, by the very act of sending his child to school, impliedly undertakes to submit all questions in regard to study to the judgment of the teacher." Exceptions having been taken, the supreme court held to pre- cisely the opposite doctrine, declaring that " the parent has the right to make a reasonable selection from the prescribed studies for his child to pursue," and that the powers and duties of school boa.rds " can be well fulfilled without denying to the parent all right to control the education of his children." By the rules of a school board in Illinois candidates for admission to the district high school were required to pass certain examinations, among which was one in grammar. Frank Van Allen applied for admission, and passsed creditably in all other branches. His 198 TALKS ABOUT LAW. father had forbidden him to study grammar, and did not wish him to take anything in the course requiring a knowledge of it. He was refused admission. The court held that " a father may have very satisfactory reasons for having his son perfected in certain branches of education to the entire exclusion of others ; and so long as, in exercising his parental au- thority in making the selection of the branches he shall pursue, none others are affected, it can be of no practical concern to those having the public schools in charge. . . . The regulation requiring it (his rejec- tion) is arbitrary and unreasonable and cannot be en- forced." Teachers have much to try their patience, and par- ents are apt to think that their children are punished too severely, and it is natural that judicial decisions in regard to matters of this kind should be much more numerous than those in regard to attendance and courses of study. Unless a teacher is forbidden to do so by the board from which he derives his authority, or by local statute, he may administer such moderate cor- poral punishment as, in the exercise of a reasonable judgment and discretion, is or appears to be necessary for the good of the scholar and the maintenance of or- der and discipline. The punishment must be given in good faith, not wantonly or cruelly, and it must be somewhat in proportion to the nature of the offence, to the age and endurance of the scholar, and to aU the circumstances of the case. In this, as in other re- spects, the law follows the spirit of the age, and pun- ishments that were common a generation or two ago would not be tolerated now. The authority of the teacher is not limited to the school -room and school - hours. He may punish a TEACHER AND PUPIL. 199 scholar for a wrongful act committed in the halls or on the playground, even though it is committed be- fore the opening or after the closing of the school. There are decisions which go much further than this, although a prudent teacher might hesitate to act on the strength of them. One afternoon, an hour and a half after school was dismissed, a Green Mountain boy was driving home his father's cows. Several of his schoolmates were with him. When he reached the teacher's house he shouted, " Old Jack Seaver." Next morning the knight of the birch took measures to secure respect, if not affection. The boy brought an action for as- sault and battery. The court held that, as his conduct was directly calculated to bring the discipline of the school into contempt, the punishment was justifiable, although, under ordinary circumstances, the super- vision and control of the master can extend only from the time when the boy leaves home for school until he returns home again. The Supreme Court of Iowa reached a different conclusion, under a statute, however, which gave the school directors less than the usual powers. Certain directors visited a school and improved the occasion by making speeches. A bright boy wrote a newspaper article ridiculing what they said. They expelled him. The court held that they had exceeded their jurisdic- tion. A school board in Missouri, thiaking pleasure and progress incompatible, made a rule that no scholar should attend social parties during term-time. A boy who attended a social party by permission of his fa- ther and mother was expelled. The court held that the board had invaded a province with which it had 200 TALKS ABOUT LAW. nothing to do and which was exclusively under paren- tal control. A college faculty made a rule that no student should be connected with any " Greek-letter society," without qualification as to the nature or object of such society, or whether open or secret. Although the legal status of a college, supported by private funds and endowments, is widely different from that of a public school, the court held that, having invited stu- dents to attend, it could not in good faith expel them upon frivolous grounds, there being no more harm in a Greek letter than in a Roman one. While a school board has no control over pupils at home, it is its privilege and its duty to protect them at school from moral as well as from physical pestilence. It may therefore exclude a girl who is a prostitute, though her conduct at school is not openly bad, the same as it may exclude a boy who has been exposed to small-pox or who has the itch. A teacher may temporarily suspend a pupQ for gross misconduct, for wilful disobedience, or for re- peated violations of rules ; but the power to expel usually rests solely with the committee or board of di- rectors, and even they cannot permanently deprive a child of education after he has given satisfactory evi- dence of a genuine reformation, neither can they de- prive him of any civil right which he has in common with other citizens, as to attend a public exhibition given in the school building. ^ A school board in Iowa made a rule that if a pupil injured or defaced school property, he should be ex- cluded until he paid the damage or otherwise adjusted the matter. A boy accidentally broke a pane of glass. The court held that the rule could not be en- TEACHER AND PUPIL. 201 forced ; that a scholar could not be deprived of his legal right to an education as a means of collecting money. As between teacher and committee, the authority of the latter is paramount. It may, if it pleases, take the corporal punishment of pupils into its own hands, and the teacher cannot make or enforce any rule con- trary to its orders. A teacher in Tennessee, in oppo- sition to his committee, attempted to do what Miss Cleveland attempted at the White House, — to pro- hibit the use of tobacco. He refused to listen to the remonstrances of the committee, and had already sus- pended two pupils when he was discharged. He brought a suit to recover pay for the term, and the court held that the discharge was justifiable (not be- cause the use of tobacco was commendable, but be- cause he had disobeyed a superior authority), and that he had no ground of action. In a Vermont case, how- ever, a teacher expelled a boy for misconduct. The committee, who was the boy's father, insisted that he should be taken back. This could not be done with- out destroying the discipline of the school and prac- tically breaking it up. The teacher resigned. The court held that she was entitled to pay for the entire term, the action of the committee, all things consid- ered, being so unreasonable as to justify her resigna- tion. In an early chapter it was remarked that one is not personally liable for a judicial error if he acts honestly and according to the best of his knowledge and dis- cretion. The weight of authority seems to be that school directors are judicial officers within the mean- ing of the exemption. There are many decisions ap- plying the same rule to teachers, and there are also decisions the other way. 202 TALKS ABOUT LAW. There is a class of public institutions for children, known as houses of refuge, houses of reformation, re- form schools, industrial schools, etc., which are re- garded in some states as essentially schools, in other states as essentially prisons of a modified type. In some states under constitutional provisions, in others under statutory enactments, in still others un- der judicial interpretations of clauses taken from the great charter given by King John in 1215, no person can be punished for an infamous crime except upon presentment by a grand jury and subsequent convic- tion by a petty jury, or confession in open court. In one way or another, this rule is understood to prevail in most of the states, except in regard to military crimes. Whether a child, therefore, who is guilty of an in- famous crime, or against whom the evidence of guilt is strong, may be committed to a reformatory institu- tion, against his will and without indictment and con- viction, may depend, not only upon local statute, but also upon whether such institution is regarded as a school or as a prison, upon whether such commitment is regarded simply as a benefit to the child or as a punishment for wrong-doing. According to the one theory, the sole object of the commitment of a child believed to be guilty of a grave crime is to provide such industrial, mental, and moral education as may be for his highest good. Viewed in this light, it is no more a punishment, no more an un- constitutional restriction of personal liberty, than it is such a restriction to commit to a like institution a destitute, unfortunate, and vagrant child, to take the custody of a child from one parent and bestow it upon another, to appoint a guardian of the person, to com- TEACHER AND PUPIL. 203 mit a lunatic or a spendthrift to an asylum, to bind out an apprentice, or to compel, by means of a truant officer or a school board, an idle and truant child to go to the public school. Upon this theory, the state only does what any school board might do on a smaller scale, — establishes a special school for such boys and girls as appear to need it, and, although their classifi- cation may subject them to a disgraceful prominence and to severer rules and discipline than ordinary, it is not in the nature of a penal sentence. According to the other theory, such commitment is a punishment, an imprisonment, the execution of a penal sentence. Have state legislatures, then, constitutional power to enact statutes authorizing the commitment of un- convicted children to reformatory institutions ? This question is one of the many subdivisions of the broader question, — What is the true sphere of the state? The state is not, like ancient Sparta, hu- manly speaking, omnipotent and omnipresent to reg- ulate and control the affairs of private life. It is not "the chief end of man," and the idealism of Plato's Republic — in which the community is everything, the individual and the family nothing — is foreign to our system of law, and repugnant to our ideas of personal liberty. On the other hand, the state has general powers for the promotion of the general welfare, edu- cational and moral, as well as material, and its very existence depends upon the intelligence and virtue of its citizens. It must, therefore, be invested with some authority over children, to the end that they may not become criminals. What is the constitutional limit of this authority ? Does it extend to the taking of a child from his home and his parents, and committing 204 TALKS ABOUT LAW. him to a reformatory institution for his own good, without first branding him as a conYict ? I am not aware that the conflicting judicial opinions upon this important question have ever been collected or discussed in any legal treatise, and, therefore, I give them considerable space in the Appendix to this book, hoping that they may be of interest and benefit to the professional, if not to the general, reader. CHAPTER XXn. PULPIT AND PEW. It is said that Rufus Choate, while engaged in a famous church case, remarked : " These Methodists fight harder and pay better than any other clients I ever had." Undoubtedly his experience was not an uncommon one. Few dissensions may become more complicated than a church quarrel, and, as a rule, no claims are persisted in more strenuously than those which are more or less matters of conscience, for to the excitement of ordinary warfare is added the zeal of a religious crusade. Lawsuits involving spiritual and temporal rights of religious bodies, the relations of individuals thereto, and interests connected with church property, have been more frequent than most persons would naturally suppose. From 1804 to 1879, in Massachusetts alone, one hundred and seventy-seven cases of this character (if I have counted them correctly) were carried to the full bench upon questions of law, were there adjudi- cated, and found their way into the state reports, and the number of such suits that did not reach this final stage must, in the ordinary course of things, have been several times as great. A religious organization may be a party to litigation 206 TALKS ABOUT LAW. of the most varied character, from the collection of pew-rents to a perpetual injunction against preaching the doctrine of the Trinity, or any other particular doctrine Scriptural or un-Scriptural. Such litigation, however, must arise from conflicting claims, material or spiritual : first, between different religious bodies ; secondly, between different members of the same reli- gious body ; thirdly, between a religious body and one or more of its members ; or fourthly, between a reli- gious body, or any of its members as such, and outside parties. "In the United States," says De TocqueviUe, " Christian sects are infinitely diversified and perpetu- ' ally modified ; but Christianity itself is an established and irresistible fact." Not only are the Christian peo- ple of this country divided into numerous sects, but many of the leading sects, such as the Baptists, Metho- dists, and Presbyterians, are stUl further divided into numerous sub-sects, each having its distinctive name. All of these sects and sub-sects, however, are more or less completely included within the two principal forms of church government, the Congregational and the Associated. Under the Congregational form, known in England as the Independent, each congregation is an inde- pendent democracy. It has been adopted by a large number of sects, the more prominent being the Unita- rian and Trinitarian Congregationalists, the Baptists, the Universalists, and the Quakers. The Associated form of church government may be either Presbyterian, Episcopal, or Papal. Under the Presbyterian form each society is not an independent democracy, but a member of a republic of societies. The clergy are equal in rank, and secta- PULPIT AND PEW. 207 rian discipline is enforced by an ascending series of church courts. The Episcopal form is aristocratic, and the clergy are distinguished by gradations of rank. It includes the Protestant Episcopal Church and the Moravians. The Methodist Episcopal Church is a very peculiar organization. Instead of following any one of the forms of church government already mentioned, it adopts certain principles from each, and is therefore a combination of the three. It has, however, more in common with Presbyterian than with Congregational or with Episcopal forms. The Papal or Boman Catholic form may be termed both aristocratic and monarchical, for the clergy are distinguished by gradations of rank, culminating in the pope, the supreme head. Now if we examine the simplest form of church government, the Congregational, we shall find several organizations, Kke wheels within wheels, which usu- ally work together in harmony, but which may and sometimes do so conflict that their respective rights can be finally determined only by courts of law or equity. First, there is the society, composed of those who regularly attend and support divine worship ; secondly, the church, composed of members and com- municants ; thirdly, other churches with which rela- tions of fellowship are maintained, an advisory, though not a judicial, legislative or executive body ; fourthly, the pastor ; fifthly, in many cases, boards of trustees, with independent powers conferred by deed, will, or otherwise, holding property for specific uses; and sixthly, the pew-owners, who, unless the society is the owner, may be individuals with distinct rights and hostile interests. It is easy to see, therefore, that un- 208 TALKS ABOUT LAW. less a spirit of justice and moderation prevails, con- flicting claims and perplexing questions may arise even under the simplest form of church government. Again, a church, or the society connected with the church, or both, may be a mere association or associa- tions of men and women acting together for a common purpose without written articles ; or there may be writ- ten articles without incorporation ; or the church, or the society, or both jointly or severally, may be incor- porated under a general statute ; or under a special charter differing from the general statute ; or neither may be incorporated, while there may be an incorpo- rated board of officers who represent one or both. In determining questions that arise, it may be material to ascertain, not only the form of church government, but also the way in which the particular organization originated and in which it has since been maintained. Such investigations are sometimes exceedingly difficult, especially if the society is ancient and its records — as is usually the case — have been kept in a loose and in- formal manner. Under the Congregational polity, each church is an organization within an organization, an association composed of certain members of the society, a select body the chief object of which is to maintain the faith and promote piety. It may examine candidates and admit or reject them, may try members for heresy or for unchristian conduct and admonish, suspend, or expel them. It has of necessity authority to pass upon the doctrinal, moral, and spiritual qualifications of its members and of those who apply for membership. In matters of this kind it must be a law to itself, and courts cannot interfere to correct its errors. Beyond its spiritual domain it is almost a cipher. A church, PULPIT AND PEW. 209 in the Congregational sense of the word, is rarely in- corporated, and in most respects the society is the rul- ing power. In Massachusetts and in other Puritan colonies, under the old dispensation, all citizens were taxed for the support of " The Standing Order," were compelled to attend its services, and only church members could vote or hold any civil office. Thus the state was sub- ordinate to the church and the latter afforded the only avenue to honors and to power. " The general fate of sects," says Macaulay, " is to obtain a high reputation for sanctity whUe they are oppressed, and to lose it as soon as they become pow- erful ; and the reason is obvious. It is seldom that a man enrolls himself in a proscribed body from any but conscientious motives. Such a body, therefore, is composed, with scarcely an exception, of sincere per- sons. The most rigid discipline that can be enforced within a religioiLS society is a very feeble instrument of purification, when compared with a little sharp per- secution from without. We may be certain that very few persons, not seriously impressed by religious con- victions, applied for baptism while Diocletian was vex- ing the church, or joined themselves to Protestant con- gregations at the risk of being burned by Bonner. But, when a sect becomes powerful, when its favor is the road to riches and dignities, worldly and ambitious men crowd into it, talk its language, conform strictly to its ritual, mimic its peculiarities, and frequently go beyond its honest members in all the outward indica- tions of zeal. No discernment, no watchfulness, on the part of ecclesiastical rulers, can prevent the intru- sion of such false brethren. The tares and the wheat must grow together. Soon the world begins to find u 210 TALKS ABOUT LAW. out that the godly are not better than other men, and argues, with some justice, that, if not better, they must be much worse. In no long time all those signs which were formerly regarded as characteristic of a saint are regarded as characteristic of a knave." This natural course of events undoubtedly contrib- uted not a little to the gradual divorce of church and state. There never was a time when our Puritan churches were corrupt ; but constituted and supported as they were, they did not and could not retain all their original purity. The attempt to exclude from a colony aU who did not accept the established doctrine failed. Those denied equal rights became restive. It was discovered that there were good men and bad in every sect. The growing spirit of toleration and jus- tice demanded a change. One by one all vestiges of state religion were obliterated. Under the Congre- gational form of church government the controlling power passed from the church to the society, from the smaller body of regular communicants to the larger body of those regularly attending divine service and contributing to its support. In 1811 it was held ^ that a parish had power to call a council with a view to severing the pastoral relation, although more than three fourths of the church mem- bers protested against it. In 1820 a decision was rendered which is famous in the annals of church litigation. A majority of the members of the Congregational Church of Dedham, Massachusetts, were Trinitarians. A majority of the society had become Unitarians. The latter, disregard- ing the remonstrances of the former, proceeded to set- tle a Unitarian minister. The Trinitarians, including 1 Burr V. Sandwich, 9 Mass. 277. PULPIT AND PEW. 211 more than two thirds of the church members, with- drew and established themselves on the opposite side of the street. Each faction claimed to be the original First Church of Dedham, entitled to the church edi- fice, furniture, communion service, and to lands and securities derived from gifts and otherwise, during a period of more than a century and a half. Neither church nor society being incorporated, they met in legal warfare under the names of their respective deacons. The court held ^ that a church could hold no property, could have no legal existence apart from the parish, and that the members of the Trinitarian fac- tion were merely seceders. " At this distance of time," says Buck, " we can hardly understand the powerful religious as well as legal effects of this decision, and the discussions it gave rise to. The burning of a min- ister on Boston Common might have attracted the eyes of Christendom more ; more tears would have been shed ; but for searching the faith of the Massa- chusetts man, for making martyrs in all towns, pre- cincts, and parishes, nothing could be devised superior to this far-reaching decision. ... In Eastern Massa^ chusetts, half the towns saw their most devout church members deprived, by a printed report of thirty pages, of meeting-house, parish property, church records, com- munion furniture, all the material part of the church, and compelled to begin their ecclesiastical life anew." This case was very ably argued by Daniel Webster and Theron Metcalf, and the unanimous opinion of the court was delivered by Chief Justice Parker; but a decision causing so much bitterness, so sweeping in its effects, and rendered at a time when nearly half of the Congregational churches of Massachusetts were be- 1 Baker v. Wales, 16 Mass. 488. 212 TALKS ABOUT LAW. coming Unitarian, could not pass unquestioned. In 1830, Chief Justice Parker had passed away, and the greatest of Massachusetts judges, Lemuel Shaw, was at the head of the judiciary. The Trinitarian minister of Brookfield seceded with every male member of his church except two ; but the court unanimously held ^ that the sociely was entitled to all of the church property. This decision deprived Trinitarian mino- rities, though they might be the whole church member- ship, of aU hope that the doctrine of Baker v. Fales would be overruled, and, subject to slight modifications of a later date, has ever since been regarded as settled law. The schism in Congregational churches was especially marked in Massachusetts ; but it was by no means confined to that state, and the general tenor of judicial decisions elsewhere has been to the same effect, Holt V. Downs, a comparatively recent New Hampshire case, being a marked exception. A society, however, cannot divert trust funds from the uses for which they were expressly given. In this connection it sometimes becomes the duty of courts to investigate religious creeds, doctrines, and beliefs with great thoroughness : — Suppose a wealthy Buddhist, residing in this country, should die and leave by will a million dollars for the purpose of erecting a temple and maintaining therein forever the tenets and forms of worship now generally accepted and practised among the followers of Buddah ; suppose, in course of time, that the trustees having charge of the property, the priests ministering in the temple, and a majority of their people should become tinged with Laniaism, a form of Buddhism corrupted by Sivaism. Under such circumstances, it would, ' Stebbins v. Jennings, 10 Kck. 172. PULPIT AND PEW. 213 upon application, be the duty of the court of equity within whose jurisdiction the matter might come to see to it that the temple and the funds were not perverted from the uses specified in the wiU, and in order to do this, it might be necessary to make a critical study of Buddhism as, at the time of the gift, it was generally accepted and practised among the followers of Buddha, and also of its ofEshoot, Lamaism, and to compare them with each other and with the doctrines taught and the rites practised in the temple. In a case like the above, where we naturally regard both forms of religion as erroneous and have little partiality for either of the contending factions, the justice of the rule, requiring the property to be used for the purposes for which it was given, is manifest. It is equally just when applied to Christian sects. The ride is strictly enforced, however, only when the religious creed or form of worship, for the maintenance of which the property is given in trust, is definitely described or referred to. If this were not so, it would furnish discontented church factions with a never- failing pretext for litigation, and, indeed, no religious body could securely enjoy or long keep its endowments. Religious, like civil history, is a record of changes, sometimes gradual and almost unnoticed, sometimes sudden and violent. Two hundred and fifty years ago Boman Catholicism persecuted Galileo for what it then pronounced to be damnable heresies, for what it now admits to be true. Somewhat more than a century ago, Jonathan Edwards said in one of his sermons : " The God who holds you over the pit of hell, much as one holds a spider or some loathsome insect over the fire, abhors you and is dreadfully provoked ; . . . The sight of hell-torments will exalt the happiness of 214 TALKS ABOUT LAW. the saints forever ; ... it will really make their hap- piness the greater, as it will make them more sensible of their own happiness ; it will give them a more lively relish of it ; it will make them prize it more when they see others, who were of the same nature and born under the same circumstances, plunged in such misery and they so distinguished. Oh ! it wOl make them sensible how happy they are ! " Calvinism emphatic- ally taught the doctrine of original sin, as the New England Primer briefly expressed it, " In Adam's fall we sinned all." It included in its condemnation, not only adult pagans who never heard and never had an opportunity of hearing of Adam or his sin, but also new-born babes : " How has it come to pass that the fall of Adam has involved so many nations, with their infant children, in eternal death without remedy, but because such was the wiU of God ? . . . Even infants before being born to life are liable to eternal death ; . . . they bring their damnation with them from their mother's womb." — Calvin. " The condemnation of many infants to eternal death is the consequence of Adam's transgression solely." — Dr. Twiss. " The same happiness in baptism, which many thousand infants receive, who, nevertheless, are never regen- erated but perish eternally." — Beza. These quota- tions, it is submitted, fairly represent the doctrines upon this and similar subjects which were commonly preached a century or two ago, and were accepted without question by at least a majority of the people in this country. Although their forms may still, to some extent, be preserved in written creeds, they are no longer generally regarded as horrible realities ; with few exceptions, they no longer brood like a nightmare over the deepest and purest affections of humanity, PULPIT AND PEW. 215 and multiply a hundred-fold the anguish of bereaved parents ; they are now but seldom heard from the piUpit, or, if heard, it is in apologetic whispers, not in thunder tones. So in regard to religious toleration. Under the forms of law, usually by a combination of statutory and ecclesiastical authority, Roman Catholics persecuted Protestants, and Protestants persecuted Eoman Catho- lics, and even rival Protestants sects persecuted each other to the death as they alternately had power to do so, and all alike sincerely believed that they were doing God's service. Calvin burned Servetus — who had dared to express mild doubts as to the dogma of the Trinity — for heresy, and Melancthon approved the act. Writing to the Earl of Somerset, Lord Protector of England, and speaking of Papists and Gospellers, Calvin said, " They ought to be repressed by the avenging sword which the Lord has put into your hands." During the reign of English Protestant princes, up to and including the protectorate of Crom- well, as well as during the reign of Catholic princes, men and women were put to death for their religious opinions and teachings, and fines, imprisonments, and disabilities were continued until a much later period. With rare exceptions, the ablest and best men of two or three centuries ago regarded toleration as scarcely less abominable than heresy, and, from their stand- point, they were perhaps both consistent and humane, for what were the momentary sufferings of a few martyrs, themselves doomed by the Almighty to eter- nal flames, if numberless souls might thereby be saved from like condemnation ? When Christians of nearly all denominations believed that those guilty of theo- logical error must suffer eternally in a hell of literal 216 TALKS ABOUT LAW. fire and brimstone, they might well inflict the severest punishments in mercy as a means of deterring them from so dreadful a fate, and no human torture could be regarded as cruel. The change from bigotry to toleration, and from that to perfect equality — a change sanctioned not only by law, but also by the approval of Christians of aU denominations and almost without exception — is a change more real and vital than any formal modifications of creed. Tate these two facts which no. one can dispute — modification of religious belief and religious toleration, nay, religious equality — and who can say that the Christian religion of the seventeenth century, as it was then generally understood, is the Christian religion of to-day ? The fact that in Massachusetts alone more than one hundred ancient Trinitarian Congregational churches have become avowedly Unitarian is only a more apparent manifestation of what has gradually been taking place in aU denominations and in all churches. Many sects still nominally retain their an- cient creeds and formulas ; but the harshest of such creeds and formulas have become, to a great extent, mere figures of speech instead of terrible realities. If we look beneath them to the preachifig that is empha- sized most, we shall find that it dwells, directly or in- directly, upon the two great commandments — love to God and love to man — upon which hang all the law and the prophets. If we look beneath the preaching to the faith that is kindled and burns in Christian hearts like a flame, we shall find that it no longer bows in fear and trembling before a relentless Deity, but looks up to a Father of infinite mercy and love. Courts recognize the fact that religious ideas are constantly imdergoing changes, usually imperceptible PULPIT AND PEW. 217 from year to year, strongly marked from centiiry to century, and, unless the contrary plainly appears, they will presume that the donor of a religious fund has recognized the same fact. The latter, therefore, can restrict his bounty to the support of particular doc- trines or of a particular form of worship only by clearly expressing such intention in the will, deed, or act of gift. A court will not go beyond the instru- ment to inquire what he would have done could he have foreseen subsequent modifications of faith or worship. If any other rule were adopted, no religious society, judging the future by the past, could perma- nently retain the benefit of a fund. The Dublin (N. H.) will case is an illustration in point. In 1817, Kev. Edward Sprague, who had been for forty years pastor of the Congregational society in Dublin, died and left the town by will five thousand dollars, " to be kept at interest by said town forever, for the sole purpose of supporting the Christian relig- ion in the Congregational Society, so-called, in said town ; the interest thereof to be paid quarter-yearly to the minister of the Congregational persuasion who shall be regularly ordained and statedly preach in said Society." In a few years, a majority of the society having become Unitarians, a Unitarian pastor was set- tled, the pastors of neighboring Trinitarian Congrega- tional Societies refusing to take part in the ordination. This caused a schism, and, after the lapse of sev- eral years more, the Trinitarian minority withdrew and formed a new society. The income of the fund was paid to Kev. Levi W. Leonard, the pastor of the original society, until 1855, — those were times of long pastorates — when the members of the seceding soci- ety discovered, as they supposed, that they and they 218 TALKS ABOUT LAW. alone were " of the Congregational persuasion " in the sense in which those words were used and intended by Mr. Sprague in his will, and that the income of the fund had been paid to the wrong party during a pe- riod of some thirty-five years. They accordingly filed a biU in equity, asking to have their wrongs righted. The court held that Mr. Leonard was " regularly or- dained ; " that the words " Congregational persuasion " are identical in meaning with the words Congrega- tional denomination ; that they should be interpreted in the most comprehensive manner, and must refer, not to matters of religious belief, but to the form of church government common to Trinitarians and Uni- tarians ; that evidence of Mr. Sprague's opinions re- specting Trinitarianism and Unitarianism, as expressed in his sermons and elsewhere, was incompetent ; and that seceders from a religious society are not entitled to share in the benefit of a fund held in trust for the society. In another New Hampshire case ^ ten thousand dol- lars were raised by subscription, the stock being held in shares of one hundred dollars each, and a religious corporation was formed, the purpose of which was stated as follows : " Believing that the public wor- ship of God has a salutary influence upon society, by awakening and diffusing moral and religious affec- tions, and considering there are many persons in this place who are unprovided with such means of religious instructions and accommodations for public worship as are most congenial with their own convictions of truth and duty : Therefore the subscribers, for their mutual and better accommodation in the premises, do hereby unite and form themselves into a religious so- 1 Hah V. Everett, 53 N. H. 1. PULPIT AND PEW. 219 ciety by the name and style of the First Unitarian So- ciety of Christians in Dover, and do hereby agree to be governed in their associate capacity by such rules and by-laws as said society may from time to time es- tablish. Such persons as are desirous of uniting with them may become members of said society by sub- scribing this agreement." The first article pro- vided : " The general custody of said house (the church building) shall be under the control of the First Unitarian Society of Christians in Dover." More than forty years passed away, during a por- tion of which time the society was composed of persons differing so widely in their religious views that they divided the pew-rents and held alternate services un- der different ministers. In 1868, after a four years' pastorate. Rev. Francis E. Abbott was dismissed. The two factions came to an open rupture, each claiming to be the legal society acting by its duly elected offi- cers. The radical majority engaged Mr. Abbott for the ensuing year, and proceeded to collect pew-rents to pay his salary. The followiag are specimens of Mr. Abbott's public declarations and teachings : That he was neither a Unitarian nor a Christian ; that he had no belief in the doctrine of the Lordship and Messiah- ship of Jesus ; that the writings of some men now liv- ing are as highly inspired and as sacred as the Bible ; " that whenever a human soul has uttered its sincere and brave faith in the divine, and has thus bequeathed to us the legacy of inspired words, there is the Holy Bible ; " that Christianity is only one among many re- ligions, partly true and partly false ; " that religion has no more to do with Jesus than it has with Judas ; " that " it leaves the soul alone with God ; " that " it acknowl- edges no leader, is loyal tQ no master, imitates no ex- 220 TALKS ABOUT LAW. emplar, looks to no redeemer, needs no saviour, knows no Christ ; " that Christianity is but a perversion of theism ; that Jesus himself was not a Christian, but a simple theist. The conservative minority brought a biU in equity, alleging that the corporation was organized, the sub- scriptions made, the property dedicated for the main- tenance of Unitarian Christianity, and asking posses- sion of the church edifice and that Mr. Abbott and all holding like views be forever enjoined from proclaim- ing them in that pulpit. Upon examining the records of the society and considering its name and all the cir- cumstances of its incorporation, the court held that no majority could use its property for the maintenance of doctrines subversive of Unitarian Christianity. The question was thus directly raised whether Mr. Abbott and those that sustained him were Unitarian Chris- tians. The court, Chief Justice Doe dissenting, held that they were not, and all " wardens and members " of the society were " jointly and severally strictly en- joined and forbidden to hire, employ, allow, suffer, or permit said Francis E. Abbott, or any other per- son, to preach and incidcate in the meeting-house of said society doctrines subversive of the fundamental principles of Christianity, as generally received and holden by the denomination of Christians known as Unitarians ; " ' and " said Erancis E. Abbott, and all and every other person or persons " were " forever strictly enjoined and forbidden to occupy said meet- ing-house of said society for the purpose of preaching and inculcating . . . any . . . doctrine or doctrines subversive of the fundamental principles of Christi- anity, as generally received and holden by the denomi- nation of Christians known as Unitarians." PULPIT AND PEW. 221 The average limits of a chapter have already been exceeded, and it is time to pass from rights and priv- ileges connected with matters of faith to those of a more secular nature. Under the Congregational polity it was formerly the universal practice, and it is still customary, to set- tle ministers. " It has been the uniform opinion of aU the judges of the higher courts," said Chief Jus- tice Parsons in Avery v. Tyringham, 3 Mass. 160, "that where no tenure was annexed to the office of a minister by the terms of settlement, he did not hold the office at will, but for life, determinable for some good and sufficient cause, or by the consent of both parties." Gross neglect of duty, immoral or criminal conduct, or " a substantial and essential change in doctrine, amounting to the adoption of a new system of divinity," is a " good and sufficient cause " for dis- missing a minister, — though in the latter case at least it should be done through an ecclesiastical coun- cil. In Thompson v. Mehohoth, 7 Pick. 163, the so- ciety, after an ex parte council, attempted to dismiss the plaintiff. He brought a suit for his salary and recovered it. Another irregular attempt to dismiss him proved equally abortive, and was followed by another succesf ul action for his salary. It was several years before the society succeeded in freeing itself from the burden of paying a minister toward whom the great bulk of its members cherished feelings of settled hostility. A minister's rights, powers, and duties depend largely upon the rules and customs of the denomination to which he belongs. Thus, an Episcopal rector in this coimtry can prohibit any other clergyman from offici- ating in his chancel, the wardens and vestry to the 222 TALKS ABOUT LAW. contrary notwithstanding. It is his prerogative to say by whom the church edifice shall be used for the pur- pose of worship. "The legal title to all church property is in the vestry collectively ; but the freehold or use is in the rector." He is entitled to the keys, and if they are withheld he can maintain a suit. Access and control of the vestry room, the belfry, and the bells are also subject to him ; but his power does not extend so exclusively to the church-yard. An Episcopal rector is also entitled to act as the presid- ing officer at meetings of the wardens and vestry. He has a right to call such meetings, to vote, to give the casting vote, and to pass upon the validity of votes and the qualifications of voters. He is the head of the governing body of the parish.^ Clergymen, as well as physicians and some others who cannot be withdrawn from their avocations with- out special prejudice to the public, are usually ex- empt from serving on juries and from bearing arms ; but, generally speaking, they are not recognized in this country as a distinct class and have no rights or privileges of a secular nature not possessed by the community at large. A clergyman, for example, can claim no exemption on account of his holy office from the consequences of any slander which he may utter or of any libel which he may write. If he warns a member of his flock against marriage with one of supposed evil habits, he will be liable to the same ^ The statements contained in this paragrapli aie made upon the authority of Rev. Hemy Mason Baum, author of a small work on that portion of ecclesiastical law which specially relates to the Protestant Episcopal Church in the United States. I have not examined the decisions to which he refers, and I am not sufficiently acquainted with the polity of the Episcopal Church to know whether they would be of {general, or only of local application. PULPIT AND PEW. 223 extent as would any one else for friendly, but officious and mistaken advice to the injury and defamation of a third person. Under the New England polity meeting-houses of " the Standing Order " were formerly the property of the town ; they are now, as a rule, owned by the so- ciety, though sometimes the title is in trustees. Among some sects, such as the Roman Catholic and Episcopal, the title is in certain ecclesiastical persons. In the Church of England, the fee of the church and glebe is in the parson; that of the burying-ground in the parish. In this country many religious societies own the pews, as well as the church edifice, and let them as a means of defraying ordinary expenses ; but frequently pews are owned by individuals. The ownership of a pew is " a qualifi^ed right or easement, subject to the more general right of the religious society, or the parish, or whoever may be the absolute owner of the meeting-house." It is the right to occupy the pew during diviue service. The rights of the pew-holder being subject to those of the parish, he cannot obstruct the repairing of the church, though he may be entitled to indemnity for any injury done to his property. If, in the course of repairs, the old pews are removed and new ones are substituted, he cannot insist that his new pew shall occupy the exact position of the old one ; it is sufficient if its relative position is substantially the same. If a church edifice becomes ruinous, or for any other good reason is abandoned, and a new one is built, the pew-holders in the old church do not thereby become entitled to pews in the new one. " The more exclusive rights of pew-owners, " says Buck, " are sometimes discussed in connection with the right of 224 TALKS ABOUT LAW. the parish to use the meeting-house for purposes not strictly religious. How absolutely, how ungraciously, a pew-owner may exercise his rights, can be learned from a judicial report embalming a curious specimen of manners which we are not obliged to imitate. The owner of a pew, not wishing to have it used on the Fourth of July, screwed cleats on the inside of the door, also across the top of the pew ; then floored over the top with boards, which boards he painted, and put up a notice forbidding any person to meddle. The committee of arrangements took down these struc- tures ; the owner sued them, and recovered damages for trespass. Chief Justice Shaw, in 1842, giving the decision in this extreme case (which turned on the peculiar by-laws and constitution of this religious society), in favor of the pew-owner, remarked that it did not settle the question of the right, in ordinary cases, to grant the use of meeting-houses to the exclu- sion of pew-owners ; and the court avoided giving a decision on that point, feeling, as the venerable chief justice happily expresses it, ' that it is more for the harmony and well-being of society, that the practice should stand on considerations of urbanity and cour- tesy, than to discuss the questions of strict law.' " CHAPTER XXin. EMPLOYEE AND EMPLOYE. The subjects discussed in this chapter are usually treated under the title of master and servant. To a majority perhaps of the people of this country the words, master and servant, are distasteful, as seeming to be inconsistent with the perfect equality before the law which is the birthright of every American citizen. Villenage in England and slavery in the United States are happily things of the past, and at the present time, aside from the enforced labor of paupers and criminals, the relation of master and servant — unless incident to some other relations, as to that of parent and child — is founded upon contract. Whatever it was origin- ally, it is no longer of a servile or slavish character. Master and servant is the more precise and technical, employer and employ^ the more popular phrase. They are not, however, strictly synonymous. A child living with his father and subject to parental control, is, in law, a servant, whether he renders any assistance or not; so a wife is a servant; yet manifestly neither is an employ^. On the other hand, one may be em- ployed to render a'special service — as where a clergy- man performs a marriage ceremony, or a surgeon sets a broken limb, or a lawyer tries a cause, or a broker 15 226 TALKS ABOUT LAW. effects a sale, or a jeweller mends a watcli, or a black- smith, shoes a horse — and thus, in the broadest sense, perhaps, be an employ^, when he is not, in the nar- rowest technical and legal sense, a servant. The relations of husband and wife, of parent and child, have already been considered ; those of principal and agent, of bailor and bailee, will be discussed in future chapters. This chapter will be devoted to the rights and liabilities of those who are both masters and employers and those who are both servants and em- ployes. The words, employer and employe, are made the title of the chapter, as indicating its subject matter more clearly to the non - professional reader. The words, master and servant, will be used hereafter, as more precise and convenient, it being understood that they have in modern law none of the offensive quali- ties which the popular associations connected with them would imply. If a servant engages to work a definite time for a gross sum, and, in consequence of events which he could neither have foreseen nor have provided against, is unavoidably prevented from completing his time, he can recover pay for the time that he serves ; but, if he is properly discharged for misconduct, or if he volun- tarily leaves his employment, or if he leaves involun- tarily for a cause which he should have foreseen, the generally received doctrine is that he can recover nothing. The following are perhaps extreme illustra^ tions : Where a servant committed a criminal offence, though it was not immediately injurious to his mas- ter, it was held that he could not recover his wages (probably — I have not access to the report — on the ground that it operated as a justifiable discharge) ; where the defendant hired the plaintiff for a year at EMPLOYER AND EMPLOYE. 227 ten dollars a month, and the plaintiff worked ten and one half months and then left, saying that he would work no longer, the court held that he had forfeited his pay, although he left on Saturday and on the next Monday returned and offered to resume work ; where the plaintiff agreed that he and his wife would work for the defendant a year for a gross sum, and, four months afterwards, the wife, being about to give birth to a chUd, left, and the plaintiff was thereupon dis- charged, it was held that he could not recover for the services of himself and wife because her sickness was of such a nature that he should have foreseen it when he made the contract. This last is a comparatively recent American decision. The same doctrine applies to the master, for, if he wrongfully discharges his servant or so conducts himself as to justify the latter in leaving him, he may be compelled to pay for the full time This is confessedly hard law. A man who engages to work a year and does not work a day is liable only for the actual injury caused by his breach of contract, usually nothing but the trouble of hiring another man ; but if he works faithfully twelve months less a single day, and then leaves for the purpose of securing a permanent situation elsewhere, he forfeits all that he has earned, although his employer may not be preju- diced a doUar. He is thus far better off if he makes no attempt to perform his contract than he is if he performs it in part only ; and the more he does in the performance of it, if he fails in the hundredth part, the worse off he is. On the other hand, if he works but a single day and is then discharged without cause, he can, at the end of the year, maintain a suit for a full year's pay. The master may thus be compelled 228 TALKS ABOUT LAW. to pay three hundred times the value that he has re- ceived although the servant, instead of being injured by the discharge, may have immediately obtained a better situation. It is not merely a hard rule ; it is also one liable to great abuse, for, near the beginning of the term it presents a strong temptation to an un- scrupulous servant, near the close of the term, to an unscrupulous master, to so conduct himself as to caxise a rupture if it can be done, and leave the other party apparently in fault. In 1834 the Supreme Court of New Hampshire, while admitting that "this has been considered the settled rule of law," declared in substance that it was unjust, unreasonable, contrary to public policy, and founded upon a mere technicality, and held that in such cases the servant is entitled to recover pay for such services as he has rendered, subject to deduction for inconvenience and loss caused by his wrongful leav- ing, and that the master is liable to pay only for such services as he receives and for such inconvenience and injury as he may cause by wrongfully dismissing his servant.^ This decision is somewhat famous in legal circles ; it has been repeatedly affirmed in New Hamp- shire, it has been followed to some extent by courts elsewhere, and it is so just and so sensible that it re- quires no prophet to predict that its general adoption is only a question of time. If a servant is hired for no definite period, he has a right to leave, and his master has a right to discharge him, at any reasonable time. If a contract of service is made in contemplation of a given notice to quit, both parties are bound by it, and, if either is dissatisfied, he must give the notice 1 Britton T. Turner, 6 N. H. 481. EMPLOYER AND EMPLOY^. 229 or submit to the forfeiture, unless the cause of com- plaint is such as to justify an immediate leaving or an immediate dismissal. The forfeiture may be whatever the parties agree upon, either expressly or according to the custom of the trade. On the part of the ser- vant, it is usually wages from the last pay day, or else from the time when the notice should have been given ; on the part of the master, it is usually wages to the next pay day, or to the time when due notice would ex- pire. The mere fact that the employer, whether a great corporation or the mistress of a single house- maid, is accustomed to give and require notice is of no consequence unless it was so understood by the servant when the engagement was made. It has been held that the custom of a trade, requiring workmen to give notice, does not bind them unless they have actual knowledge of it. In Massachusetts it has been held that such a custom, though brought to the workman's knowledge during the period of his employment, even though known to him at the time of his employment, is not binding upon him unless the contract were made with reference to it. One who wrongfully entices a servant from his em- ployment will be liable to the master for the incon- venience and loss of which he is the cause. So one who wrongfully injures a servant whether carelessly or wilfully, whereby the latter is disabled, may be lia- ble to the master as well as to the servant. In the absence of an agreement to the contrary, a servant hired by the year or by the month is entitled to legal holidays, and is not bound to " make fair weather " or to lose time when there is nothing for him to do. It is otherwise where one is hired by the day. A cook who breaks dishes, a coachman who lames 230 TALKS ABOUT LAW. a, horse, a workman who injures machinery, an en- gineer who sets fire to a mill, is liable to his master in damages only when the loss is the result of careless- ness. Many ladies make their domestics pay for all broken crockery. They cannot do so legally unless there is an express contract to that effect. A servant who exercises due care is not responsible for accidents. The liability of masters to servants and to third persons for accidental injuries is an exceedingly fruit- ful source of litigation. The variety of circumstances under which such accidents may occur and the per- plexing questions and fine distinctions to which they may lead are almost infinite, and a full consideration of the subject would require volumes ; the leading principles, however, are few and simple. A servant, whether engaged in a dangerous or in a safe occupation, in the manufacture of gunpowder or in selling dry goods behind a counter, takes the ordi- nary risks incident to his employment. If he is in- jured by an accident which no prudence could have prevented, or either wholly or in part, in consequence of his own carelessness, he is without remedy — the misfortune must rest where it happens to fall. If he is injured by the negligence of a stranger over whom the master has no control, he has no claim against the latter. If he is injured by the negligence of a fellow- servant, the master is not liable unless he is in some way in fault. It is often difficult to draw the line be- tween those who are and those who are not fellow-ser- vants, especially if the defendant is a great corpora- tion and its business, perhaps closely connected with that of other corporations, is divided into numerous branches and departments. It does not follow that two persons are fellow-servants simply because they EMPLOYER AND EMPLOYE. 231 are employed in the service of the same man or the same corporation. The president and directors of a railway company, for example, are in a sense its ser- vants ; but they are also its agents and managers, and if, through their neglect, an employe is injured, the company cannot avoid liability by the plea that they are fellow-servants. It is not the grade of service alone that determines whether two persons are fellow- servants. A mechanic employed in a railroad shop and an engineer employed to run a locomotive may have duties of equal responsibility and may receive the same pay, but, as their employments are separate and dissimilar, they are not fellow-servants though serving the same corporation ; and, if the engineer carelessly runs over the mechanic, the corporation may be liable without actual fault on the part of its officers. On the other hand, although the position and responsibility of a conductor is superior to that of a brakeman, they are ordinarily regarded as fellow-servants, for they are engaged in performing duties and services of the same general character for the same general purpose. While a master is not necessarily liable to one ser- vant for the negligence of another, he is bound to ex- ercise due care in the selection of his servants ; he has no right to expose one servant to danger from the in- competency, recklessness, or drunkenness of a fellow- servant; and, if he knowingly or carelessly does so, he will be responsible for the consequences, provided the injured servant is without fault. The same principle applies to the machinery, and to everything connected with the business. He has no right to expose the lives or limbs of his workmen by using unnecessarily dangerous buildings, materials, tools, or machines. If there are concealed and dangerous defects of which he 232 TALKS ABOUT LAW. knows or ought to know, it is his duty to remedy them, or at least to point them out so that corresponding care may be taken ; and, if the occupation is dangerous and the servant is young or inexperienced, to see that he is carefully instructed that he may be on his guard. Briefly, the servant takes the ordinary risks incident to his occupation, and the master is bound to exercise due care in order that it may not be needlessly dan- gerous. The master's liability to third persons is more ex- tensive. So far as they are concerned, the negligence of a servant acting within the scope of his employ- ment is in law the negligence of the master, even though the latter may in fact be without fault. This rule extends only to acts connected with or incident to the employment. If a coachman, for example, even while driving for his master, intentionally drives over one against whom he has a grudge, he does not mis- perform his duty, but rather quits it for a malicious purpose, and the master, unless he also is to blame, cannot be held responsible. Of course a servant's liability for his wrongful acts is not diminished by the fact that the master may also be liable. The distinction between a master's limited liability to a servant for the acts of a fellow-servant, and his much more extensive liability to third persons for the acts of his servants, is of very ancient origin. Re- cently its justice has been more or less questioned, and in several states efforts have been made to abol- ish it by statute. CHAPTER XXIV. MINORS. If children could bind themselves by contracts to the same extent that adults can, they would not only fall an easy prey to the cunning and the unscrupu- lous, but also to their own inexperience and want of judgment, and in many cases they would financially ruin themselves before coming to years of discretion. On the other hand, if they could make no valid con- tracts, men in general would hesitate to trade with them, at least upon credit, and they would often suf- fer for the necessaries of life. The law, therefore, gives them some of the powers, and subjects them to some of the liabilities, of grown persons, and at the same time it places them under certain disabilities for their own protection. While these disabilities continue they are known as infants or minors. The common law age of majority is twenty-one years,^ and, generally speakjng, the rule remains unchanged by statute, although in several states a girl ceases to be a minor when she is eighteen. According to all, except some of the later authori- 1 As fractions of a day are not taken into aeeonnt, a yonng- person may be twenty-one in law forty-eight hours less a single second before he is twenty-one in fact ; thus a child bom the last second of the first day of January, 1880, will be of age the first second of the last day of December, 1900. 234 TALKS ABOUT LAW. ties, the contracts of infants are classed as valid, void- able, and void. Subject to the qualification hereafter stated, an in- fant's contracts for necessaries are as valid as those of an adult. As he is permitted to marry when he is fourteen years old, his contracts for necessaries for his wife and children are also valid. Necessaries for an in- fant, says Lord Coke, include clothing, victuals, med- ical aid, and " good teaching or instruction, whereby he may profit himself afterwards." Even these things, however, are not necessaries unless, under aU the cir- cumstances of the case, they are necessary for him or for his family. For an infant whose cellar and ward- robe are already abundantly supplied, additional food and clothing are no more necessaries than are fast horses and diamonds. The necessaries for which a minor can charge himself, as well as the necessaries for which a married woman can render her husband chargeable, may or may not be limited to expendi- tures on the most economical scale. The law does not undertake to say arbitrarily how fashionable a tailor, how luxurious a cook, how expensive tutors an infant can employ and must pay ; the reasonableness of his expenditures for such purposes must depend largely upon his means, his expectations, his surroundings, and the avocation for which he is educating himself ; but when he seeks to live, all things considered, ex- travagantly upon credit, it checks his spendthrift hab- its by making it difficult for him to obtain credit to an extent injurious to himself ; in other words, by making it for the interest of those who deal with him to ascertain what are his actual, not his apparent, needs and circumstances, and to give him credit for only such things as are, in view of all the facts, rea- sonably necessary for him to have. MINORS. 235 The qualification of an infant's power to make valid contracts for necessaries is that he is not bound to pay the contract price unless it is reasonable. The law presumes that adults are, that infants are not, capable of looking out for themselves. If a man buys a suit of clothes he is bound, in the absence of imposition, fraud, mistake, or breach of warranty, to pay the price agreed upon. If a boy buys a suit, which he needs, he is bound to pay only what it is reasonably worth. Further, if a young lady, in ordinary circumstances, and subject to only the ordinary requirements for dress, should purchase one of Worth's most expensive party dresses, she would be bound to pay, not its in- trinsic value, but only its value to her as necessary clothing, taking into account her circumstances, sur- roundings, and actual needs; beyond that, it would be a luxury for which, being a minor, she could not legally bind herself to pay. Briefly stated, an infant can irrevocably bind himself to pay only for such things as are necesssaries for him, and only their value to him as necessaries imder all the circumstances of the case. By the ancient common law — though perhaps the less technical practice now in vogue has shaken the rule somewhat — sums of money lent to an'infant for the purpose of buying necessaries, and so used by him, cannot be recovered back ; but courts of equity, having regard to the substance rather than to the form of the transaction, recognize and enforce such claims. According to the doctrine now becoming estab- lished, there are very few, if any, contracts absolutely void on the ground of infancy.^ It may be said in a ^ In 1874 the English Parliament took a step in the other direc- 236 TALKS ABOUT LAW. general way that, subject more or less to parental con- trol, an infant can let himself for hire, can engage in business on his own account as a merchant or a manufacturer, can buy a thousand things which are not necessaries ; in short, can make any, or almost any, contract that an adult can make, and if he chooses to treat it as valid, it is binding upon those with whom he deals. If it is executory, that is, if it is to be performed, he may perform it, and by ratify- ing it when he is of age it becomes binding upon him. If it is executed, it will be binding upon him unless he rescinds it within a reasonable time after attaining his majority. If this were not so, infants would be without remedy and exposed to great injustice in a multitude of cases ; for a contract which is absolutely void as to one of the parties cannot be binding upon the other. It may be said here that an infant's priv- ilege of avoiding matters of court record, when it exists, is much more limited than his privilege of avoiding contracts, for it can be exercised only before he attains his majority. An infant cannot claim all the benefits, and at the same time be relieved from all the burdens, incident to voidable contracts. If he buys a horse on credit, he cannot be compelled to pay; but, if he pays, he cannot recover his money back without returning the horse. If he makes a contract to be executed in the tion by enacting that ' ' all contracts entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated, shall be absolutely void. . . . No action shall be broug-ht whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." MINOKS. 237 future, he cannot be compelled to perform Ms part of it ; but, if he whoUy fails to do so, he cannot recover damages for a non-performance by the other party, neither can he enforce specific performance by a suit in equity. As long as he stands on the defensive the law will protect him ; but, when he assumes the offen- sive, he must do justice in order to claim its assist- ance. The above, it is believed, is the rule of law gener- ally applied at the present time to the voidable con- tracts of infants. " It is intended as a shield, not as a sword ; " but, in fact, it is often the latter, and not seldom it is a means of great injustice, making the disability of infants " not their protection merely, but an extraordinary legal ability to rob others ; . . • not a means of legal incapacity to be plundered by their fellow-men, but a vast capacity to plunder them with impunity." For example : a young man, apparently of age, sells a horse in a fair trade and for its full value. The purchaser pays the money and goes away, saying that he wiU call the next day for the animal. When he comes, the young man opens the family Bible, shows the date of his birth, and says : " I was n't twenty-one yesterday ; you can't have the horse, and you can't have the money," — and the pur- chaser is without remedy. Again : a young man of twenty desires to buy a stock of goods. He applies to a friend for the means, buys the goods, sells them at a handsome profit, deposits the proceeds in the bank, and cooUy informs his benefactor that he can whistle for his money. The power to do such things with impunity is a dangerous power in the hands of those who are disposed to abuse it, and it may fairly be questioned whether it is of great benefit to those 238 TALKS ABOUT LAW. who are not. In many cases it offers a premium on meanness and dishonesty, and is more injurious to the morals of the infant than to the pocket of the adult. An infant who buys goods for cash cannot ordinarily recover his money without returning them. An in- fant who buys on credit can keep the goods without being compelled to pay for them. The technical dis- tinction is obvious; but, aside from the weight that should be given to precedent, has it any solid foun- dation in justice or in public policy ? In the recent case of Hall v. Butterfield^ the Su- preme Court of New Hampshire, disregarding prece- dent and authority, and applying the maxim that the law is made for man rather than man for the law, holds that an infant cannot rescind a voidable con- tract without putting the other party in statu quo, in substantially as good a condition as if the contract had not been made, and also, if he his unable or unwilling to do so, that he must pay for such benefit as he has actually received, not exceeding the contract price. In delivering this opinion the court says : " It is ap- parent that the tendency of the later decisions is to enlarge the liabilities and obligations of infants; and, while the liability has not in their case been extended so far as it has in regard to lunatics and persons Tion compos mentis, the principle on which it rests is the same. ... No reason appears why . . . the rights and obligations of lunatics, persons non compos mentis, drunkards when in such a state as to be entirely bereft of reason, and infants should not be placed on the same ground. The obligation to account only for the benefit actually received secures ample protection from fraud and imposition, and at the same time prevents 59 N. H. 354. MINORS. 239 the privilege from being used to perpetrate fraud. . . . The right to recover for necessaries is given because the infant has derived a benefit therefrom. It is upon no other ground. If the benefit is the foundation of the right, why should it be limited to necessaries ? It cannot be said that the infant, if engaged in trade or business, may not derive a benefit therefrom. If ben- efit obtained by the infant is the test in one case, why not make it the test in all cases ? This has been made the test in the case of lunatics and persons non compos mentis, and it should be applied in the case of infants. The true rule is, that the contract of an infant or lunatic, whether executed or executory, cannot be re- scinded or avoided without restoring to the other party the consideration received, or allowing him to recover compensation for aU the benefit conferred npon the party seeking to avoid the contract. . . Our conclu- sion is, that the plea of infancy is not a bar to the plaintiffs' recovery, but that they may recover to the extent of the benefit received by the defendant, not exceeding the price he agreed to pay for the goods." Whether the New Hampshire decision will be gen- erally followed by the courts of other states remains to be seen, but the tendency of some of them appears to be in that direction. If the New Hampshire doc- trine should be generally adopted, the contract liabili- ties of infants and the contract liabilities of persons of unsound mind (as the latter are now generally under- stood) would be placed on the same footing, the most important distinction between contracts for necessa- ries and contracts voidable on the ground of infancy would be abolished, and the law would be in this re- spect more simple than it now is, and, in theory at least, more reasonable and more just. 240 TALKS ABOUT LAW. According to the older authorities, any contract clearly prejudicial to an infant is not voidable merely, but absolutely void. It is difficult to see upon what solid foundation this doctrine rests, and it is becoming undermined by modern decisions. If an infant signs a note or a bond as surety for a friend, it is a contract clearly prejudicial to him and one to which he cannot be held; but he has the right, morally speaking it may be his duty, to waive the privilege of infancy and honor his signature. If he does so, he has, the same as if he were an adult, a claim for reimbursement upon the friend for whose benefit he signed ; otherwise in- fancy, instead of being a shield, would be a sword piercing his own breast. The contract is not, like an agreement to commit crime, absolutely void. The in- fant may perform it or not, as he pleases ; and, if he does perform it, he lays the foundation for a claim which the law wUl recognize. Infants are entitled to special protection in regard to their contracts, for they cannot be expected to have experience and maturity of judgment in business af- fairs, and, besides, those who deal with them may in most cases easUy protect themselves by dealing fairly, and, if not selling necessaries, by selling for cash. The same reasons do not apply to torts, that is, to acts of misconduct or negligence by which others are in- jured in person, property, or reputation. A child learns to distinguish right from wrong and ordinary care from gross negligence long before he is fitted for the intense competition of business life, and, while others can decline to make contracts hazardous to themselves, they have no equivalent security against his wrongful or negligent acts, and, if he could not be compelled to indemnify them they would be at his MINORS. 241 mercy. It is therefore both just and necessary, if the infant is old enough and intelligent enough to be guilty of misconduct or negligence, that he should be held responsible for it. A tort may, however, be so connected with and dependent upon a contract that no action can be maintained without admitting the valid- ity of the contract ; in such cases the form of the ac- tion is of no consequence, the infant is entitled to his privilege. If, in the course of a horse trade, he fraudu- lently conceals the defects of the horse, he is not liable in an action of deceit, for the contract and tort are inseparable ; and many courts — for the decisions in regard to the dividing line are conflicting — have car- ried the principle so far as to hold that an infant is not liable in an action of tort for obtaining goods on credit by means of his false and fraudulent represen- tations that he is of age. Though a tort may be inci- dentally connected with a contract, if it is not founded upon it the infant is liable : thus, if he hires a horse and injures it by negligence or abuse, the contract is merely incident to, not a part of the tort. A suit may be brought in favor of an infant by his guardian or next friend, but the statute of limitations does not begin to run against him until he is of age. Generally speaking, the right to bring a personal ac- tion expires at the end of six years ; in such cases, therefore, an infant's right survives until he is twenty- seven, although the cause of action may have arisen the day that he was born. An infant, if fourteen years of age, can make a valid will of personal chattels. As infants are permitted to marry, their marriage settlements, if just and reasonable, are usually upheld by courts of equity. Courts of equity, also, as a rule, 16 242 TALKS ABOUT LAW. give them a definite time after majority in wMcli to redeem real estate foreclosed on mortgage during in- fancy. A child under seven years cannot be guilty of crime. Between seven and fourteen his capacity for crime (subject to an exception that need not be named here) is a question of fact dependent upon his intelligence and maturity of mind. After he is fourteen he is legally as responsible for crime as if he were an adult. At the present time, however, courts almost invariably impose light sentences upon youthful criminals, and in most or in all of the states there are provisions for sending them to reformatory institutions instead of to prisons. CHAPTER XXV. PEBSONS NON COMPOS.^ The ancient Egyptians, and after them the Greeks, made mental disease and infirmity a subject of careful and scientific investigation. The temples of Saturn and the Asclepia were resorts for the insane, and it is said that the most eminent physicians of the present day in this department do little more than develop the ideas of Hippocrates and Galen. The ancient Romans availed themselves of the knowledge of the Egyptians and Greeks, and to a great extent their law was wisely adapted to protect the mentally imfortunate. In the dark ages that followed the overthrow of the Roman Empire the learning in regard to insanity and other mental infirmities became a lost science ; its practice, a lost art. From then until comparatively recent times persons of unsound mind were regarded as victims of a supernatural visitation, and, until late in the eighteenth century, medical men, while patiently searching after the causes and remedies of bodily disease, seemed to consider mental infirmity as beyond the pale of science, and inquiries into it as profane attempts to penetrate the mysteries of Providence. Until within a hundred years or less, therefore, the treatment of the insane was generally such as to aggravate their disorders and make recovery hopeless. The ideas of physicians upon this subject being so crude, those of judges and lawyers ^ Spe Appendix B. 244 TALKS ABOUT LAW. could not be less so, and, misunderstood and wronged by the two professions that should have been their friends and protectors, the condition of this unfortu- nate class of persons was indeed deplorable. Medical jurisprudence, like other departments of law, grows by the application of legal principles to es- tablished facts and accepted theories. More or less closely it follows the progress of medical science. At the present time medical men divide persons not of sound mind into idiots, cretins, imbeciles, stupid persons, lunatics, monomaniacs, etc., each class with its subdivisions making in aU some fifteen or twenty classes and subclasses, which merge into each other by inperceptible degrees. The distinction between the two extremes, however, is very great. A complete idiot or fool has no mind, can learn the simplest things, such as feeding himself, but imperfectly, and is destitute of human, often of brute intelligence. On the other hand, a lunatic may be and sometimes is a person of rare attainments and powerful intellect. Indeed, great mental as well as great physical strength is slight evidence of freedom from the seeds of disease, and men of genius are quite as liable as others to insanity. The law holds the life of an idiot or fool as sacred as that of any one else, and it protects his rights with the jealous care extended to all persons presumed to be incapable of earing for themselves. He can inherit property, and his guardian can make contracts for his benefit, and sue and be sued in a fiduciary capacity. The idiot himself may be bound by implied contracts for necessaries, for the same reasons that an uncon- scious person may be bound to pay for shelter or med- ical aid ; but he can make no actual contract, he can PERSONS NON COMPOS. 245 do no wrong, he can commit no crime, for he has neither reason, judgment, nor understanding. In a majority of cases insane persons are not wholly without reason, judgment, and understanding. They are not destitute of mind, like idiots, but have diseased minds. As physical disease or deformity may affect only a portion of the body, so mental disease may leave the mind and judgment to a great extent unimpaired, and a man who is " as mad as a March hare " upon some subjects may be perfectly sane upon others. This fact, so long ignored, is now universally recognized. While humanity requires that persons of unbalanced mind should be afforded special protection in respect to their infirmities, it would be equally cruel and im- politic to deprive them of the right and power to do what they are competent to do ; and, while justice re- quires that they should be answerable for their viola- tions of law only to the extent of their mental respon- sibility, the public safety requires that they should be answerable to that extent. They occupy, therefore, a position intermediate between the total disability of idiots and the full power and responsibility of adults of sound mind and discretion. If a man, for example, understands the nature and extent of his property and is mentally capable of ap- preciating the claims of relatives and others upon his bounty, if he knows what he has and what he wants to do with it, if in these respects his mind is clear, he is sane enough to make a will, although his brain may teem with delusions far wilder than those of one whose diseased imagination, conjuring up schemes against his estate, manifestly renders him incapable of dispos- ing of it. So, if a man knows the nature and quality of the 246 TALKS ABOUT LAW. act which he does and knows that it is wrong, he is sane enough to be guilty of crime. Unless his delu- sions are of such a character as to affect the act, they are no defence to a criminal prosecution. If he be- lieves that his legs are made of glass or that he is heir to a throne, it cannot excuse larceny, for there can be no connection between the delusion and the crime, ex- cept perhaps as one delusion may tend to prove the existence of others. If he insanely believes that an- other has done him a grievous wrong, it wUl not ex- cuse homicide, for, if the delusion were an actual fact, it would be no legal excuse. But if the delusion is of such a character that, if true, it would relieve the act from responsibility, or if the reasoning powers are so disordered as to make it a natural consequence, it is not a crime. If a man should drown his child under the insane delusion that it were a puppy (and there have been numerous cases of a similar character), he would not be guilty of murder, " although to other in- tents and purposes he was sane, — answering, reason- ing, acting, as men not in anj' manner tainted with in- sanity converse and reason and conduct themselves." It would be the same if he should hang another in the belief that he were a sheriff executing the sentence of the law, or should shoot another in the belief that it was a necessary act of self-defence; for though he were a sane man, if his insane delusion were a fact, the act would be justifiable. The law goes a step further, although its wisdom in doing so — for such eases have frequently occurred — has been gravely doubted : if a man takes life under an insane and honest belief that he is commanded by the Almighty to offer up a human sacrifice, he is guiltless of crime, although he may realize perfectly the enormity of his PERSONS NON COMPOS. 247 act considered merely as a violation of human law. By this it is not to be understood that mere religious belief, superstition, or delusion, however sincere, will excuse violation of law ; if it would. Thugs might mur- der and Hindoos might burn widows alive in this country at their own sweet will. A delusion wiQ not excuse unless it is that of an insane mind ; one who has reason sufficient to correct a delusion, and an op- portunity to do so, and still continues to cherish it, is responsible for the consequences. It is the same in regard to what is known as " ir- resistible impulse." Irresistible impulse, such as will excuse a criminal act, must be something more than the frenzy of anger or passionate propensity, however violent ; it must usurp the place of reason and intel- lect and amount to insanity. Moral insanity, in its technical sense, is a real or supposed insanity of the moral faculties, an unnatural depravity for which the victim is not accountable, co- existing with mental soundness. Whether it exists in fact is a psychological rather than a legal question, for, although the theory has frequently been urged by dis- tinguished counsel and has been carefully considered by courts, the almost universal conclusion has been that it " is hostile alike to the principles of law and the safety of society." Whatever pleas may be ac- cepted or rejected before a higher tribunal, before human tribunals a person who is mentally sound must be held accountable for his acts, though he may have inherited and though circumstances may have devel- oped the instincts of a tiger and the moral nature of a fiend. Upon the great stage of history the ferocity of a Sulla or the cold-blooded, conscienceless egoism of a Napoleo^ may be obscured by genius and success ; 248 TALKS ABOUT LAW. but in the smaller affairs with which courts have to deal, men endowed with reason and judgment cannot plead a want of moral sense. Settled insanity produced by intoxication affects responsibility in the same way as insanity produced by other causes, and delirium tremens, while it lasts, as completely dethrones the reason and " runs the same course with almost every other species of insanity known in the criminal courts. It is the result, like most other manias, of prior vicious indulgences ; but it differs from intoxication in being shunned rather than courted by the patient, and in being incapable of voluntary assumption for the purpose of covering guilt." " A drunken man," says Coke, " is a voluntary demon." Whether morally or not, legally intoxica/- tion does not affect responsibility for crime, except in some cases where it bears upon questions of intent and premeditation. If it did, the chief source of crime would be its chief protection, and, by arming himself with a few glasses of whiskey, one might commit mur- der with impunity. While the law cannot permit a man to plead drunk- enness as an excuse for crime, in other respects it re- gards him as temporarily insane. Notwithstanding the fact that his disgraceful condition is the immedi- ate result of his own vice, he is entitled to protection from those who would take advantage of it to impose upon him. Formerly it was held that he was bound by his contracts the same as if sober (unless he were made drunk for the purposes of defrauding him) ; but this policy was long ago abandoned as unjust and al- together too favorable to sharpers. In regard to the general contracts ot insane per- PERSONS NON COMPOS. 249 sons, " incapacity, at the time, to understand the act is the criterion of unsoundness of mind." Mere fee- bleness of mind, not amounting to idiocy or insanity, is not regarded as unsoundness, although, in a court of equity, it may entitle one to relief from artifices against which persons of ordinary intellect would be expected to protect themselves. The modem tendency seems to be to uphold the contracts of insane persons if they are reasonable in themselves and under the circumstances, and are made fairly and without notice of disability, especially if the other party cannot be put in statu quo ; in a word, to afford the insane person such protection as his unfortunate condition requires without permitting him to avoid paying for real benefits rendered to him in good faith. This policy, it may be remembered, is identical with that which the Supreme Court of New Hampshire applied to the contracts of infants in the case of Hall v. Butterfidd} already commented upon. The leading case in support of this enlarged power of insane persons to make contracts is Baxter v. Earl of Portsmouth^ and the authority has been quite gener- ally followed in this country. During lucid intervals the insane are responsible for their acts and are bound by their contracts the same as other persons. All persons are presumed to be sane until they are proved to be insane ; when insan- ity is once proved, unless it is due to a temporary cause, such as the delirium of fever, it is presumed to continue until the contrary appears. If one, through unsoundness of mind, is incapable of taking' care of himself or his property, the one or the other or both, as occasion may require, he may be 1 59 N. H. 354. 2 5 B. & C. 170. 250 TALKS ABOUT LAW. placed under control by legal process. The method of doing so depends upon local statutes and varies greatly in the different states. This power is to be exercised judiciously and with moderation, for the mentally unfortunate have the same right to liberty that others have, except in so far as restraint may be necessary for their good, or for the comfort, peace, and safety of their friends and the public. Without be- ing appointed his guardians and without legal process, the friends and relatives with whom an insane person lives may perhaps exercise a limited and reasonable control over his person, and, if he becomes dangerous to himseK or to others, any one, without awaiting the law's delay, may place him under such temporary re- straint as the exigency of the occasion demands. Where persons were acquitted of murder or of other crimes on the ground of insanity, it was formerly the practice to permit them to run at large, although it might be morally certain that they would repeat the acts at the first opportunity; it is now the practice, in theory at least, to confine them in asylums until they are supposed to be cured. One of the most emi- nent writers upon criminal law suggests that where the defence is insanity alone a verdict of guilty should be taken in all cases, leaving the question of sanity and punishment or insanity and confinement in an asylum to be determined by a mixed court of medical men and civilians. In England a special asylum has been established for this class of lunatics, from which they can be discharged only by authority of govern- ment. CHAPTER XXVI. PUBLIC COEPOEATIONS. A COEPOBATION is an artificial person, created for certain purposes defined by charter or otherwise, and for the accomplishment of those purposes, and those only, empowered to act as if it were a real person. Thus, in this country, cities without exception, banks, railway, telegraph, and insurance companies almost without exception, a majority certainly of large man- ufacturing and many other industrial and business concerns, also colleges, churches, and religious and charitable institutions, numerous scientific and liter- ary societies, and lodges of Free Masons, Odd Fel- lows, etc., are regarded in law as persons, having widely different powers and responsibilities, yet within the limits prescribed by law and their respective char- ters, capable of acting as if they were real men and women, and beyond those limits incapable of acting at all. Probably the best and clearest description of a cor- poration is the following by Chief Justice Marshall : " It is an artificial being, invisible, intangible, and existing only in contemplation of law. Beiijg the mere creature of the law, it possesses only those prop- erties which the charter of its creation confers upon it, either expressly or as incidental to its very exist- ence. These are such as are supposed to be best cal- 252 TALKS ABOUT LAW. culated to effect the object for which it is created. Among the most important are immortality (in the legal sense that it may be made capable of indefinite duration), and, if the expression may be allowed, indi- viduality, — properties by which a perpetual succes- sion of many persons are considered as the same, and may act as a single individual. They enable a corpo- ration to manage its own affairs, and to hold property without the perplexing intricacy, the hazardous and endless necessity of perpetual conveyances for the pur- pose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succes- sion, with these qualities and capacities that corpora^ tions were invented and are in use. By these means a perpetual succession of individuals are capable of acting for the promotion of the particular object like one immortal being." In this respect corporations have been compared to rivers, which may remain the same from age to age, although their waters ever flow on and mingle with the sea. In the broadest sense the United States is a cor- poration. It has immortality and individuality. It is an artificial being, the personation of sixty millions of real beings, i Its flag is the symbol of its power ; its seal, of its authority. It can declare war and peace, make laws and enforce them, coUect revenues and ex- pend them, devise and execute works of public utility, establish banks, hire money, buy and sell, — in a word, like ordinary corporations, it can do such things as the charter of its creation, either expressly or im- pliedly, empowers it to do. In this broad sense, even governments that have no written constitutions are corporations. Their powers may be well defined by immemorial custom, as in the case of the English gov- PUBLIC CORPORATIONS. 253 eminent, or they may be loose and ill defined ; such powers may be wielded by a single individual, like the Russian czar, or by an innumerable host, like the an- cient Polish Diet. Whatever its peculiarities, if there is an organized government, it is, in the broadest, sense, a corporation. By ordinary usage, however, the term is restricted to artificial persons of a far less exalted character, and a consideration of the powers and duties of state and national governments does not properly belong to this chapter. Corporations are divided into public and private. " Public corporations are such as are established for public purposes exclusively, — that is, for purposes connected with the administration of civil or local gov- ernment, — and corporations are public only when, in the language of Chief Justice Marshall, 'the whole interest and franchises are the exclusive property and domain of the government itself.' " The most familiar examples of public corporations are counties, cities, towns, village precincts, school and highway districts, and the like. One might naturally suppose that the state is di- vided into counties, and the counties into cities and towns, — the state being first, the counties second, the cities and towns third, in relative importance ; but this is not so, at least in New England. The state is di- vided into cities and towns for the purposes of local self-government, and the counties are created mainly as judicial districts for the more convenient adminis- tration of the law, and are, therefore, of comparatively little importance. In some of the New England States it has been the established rule for the governor and council to appoint county officers. A similar power to appoint town and city officers would, in New Eng- 254 TALKS ABOUT LAW. land, substantially destroy the right of local self-gov- ernment, and would be equivalent to a revolution. This fact alone is sufficient to illustrate the wide dif- ference between a New England county and a New England city or town. Incidentally to the main pur- poses for which they are created, New England coun- ties are required to pay the ordinary expenses of hold- ing courts, to provide and maintain county buildings, to support transient, and sometimes settled, paupers, and in some cases to assist towns in making and re- pairing highways and bridges. For these purposes, and for some others, they are necessarily invested with corporate powers, and therefore they are termed quasi corporations ; that is, bodies having the characteristics and powers of ordinary corporations only to a limited extent. In many parts of the country, however, the powers of counties are more extensive, and in the South they approach in some degree to those exercised by cities and New England towns, although, in this respect, there is a want of uniformity in the South as well as in the North. In North Carolina the state as- sumes many of the duties that elsewhere are performed either by cities and towns or by counties. " The ma- jority in the legislature appoints the justices of the peace of the various counties ; the justices of the peace select the county commissioners ; the county commis- sioners control the assessment of taxes and the distri- bution of public funds, appoint every officer connected with the schools of the county, designate every regis- trar of voters and inspector of elections, have charge of aU schools and highways, and, in short, administer the whole government of the county." American cities are representative governments in miniature. The mayor corresponds in many respects PUBLIC CORPORATIONS. 255 to the governor of a state or to the President of the United States, although he does not usually have the veto power, and in other respects is perhaps too much a mere figure-head to insure responsible government. The board of aldermen corresponds still more closely to the state or national Senate, and the council to the House of Representatives. This resemblance, however, is not universal, for there are many cities in the coun- try that have but a single board, and, it is understood, there are others in which aldermen and councilmen act together as a single body. City charters, also, whether created by special acts or organized under general laws, correspond to state and national consti- tutions, except in the fact that they derive their au- thority from, and are subordinate to, a superior power. In this country, as a rule (to which, of course, there are many exceptions), they greatly resemble each other in their principal features. Such a charter usually begins by declaring that the inhabitants of a certain place are hereby constituted a body politic and corporate by the name and style of the city of , and by that name shall have perpetual succession, may use a common seal, sue and be sued, buy, hold, and sell property as may be necessary for corporate purposes, etc. It next defines the territorial bounda- ries of the city and of its wards, prescribes the times and methods of holding elections and the qualifications of voters, the latter being usually the same as those of voters in state and national elections. Then follow provisions in regard to the chief officials and their duties, and last, but not least, an enumeration, often minute and detailed, of the corporate powers con- ferred. Of these powers the most important are : " The authority to create debts (sometimes restricted); 256 TALKS ABOUT LAW. to levy and collect taxes within the corporation, for corporate purposes ; to make local improvements, and assessments to pay therefor; to appoint corporate officers ; to enact ordinances to preserve the health of the inhabitants, to prevent and abate nuisances, to prevent fires, to establish and regulate markets, to reg- ulate and license given occupations, to establish a police force, to punish offenders agaiust ordinances ; to open and grade and improve streets ; to hold corporation courts." Municipal, like other corporations, have only such powers as are granted to them in express words; or are necessarily or fairly implied in, or are incident to, the powers expressly granted; or are "not simply convenient, but indispensable " to the declared objects and purposes for which they were created. All acts which do not come within these limits are, so far at least as the corporations themselves are concerned, null and void, and, in determining questions of this kind, " courts adopt a strict, rather than a liberal, construction." Thus, unless expressly authorized to do so, a city or a town cannot encourage manufactur- ing or other enterprises by exempting them for a time from taxation; neither can it appropriate or spend money to aid in the construction of railroads and canals ; to pay bounties to volunteers ; to celebrate a public holiday ; to entertain a distinguished guest ; to provide a public library ; to lay out a park ; to erect a monument or any structure purely ornamental, un- less it is appurtenant to property required for ordi- nary city purposes ; or, perhaps (for the decisions are conflicting), to pay a reward offered for the appre- hension of a criminal, such as a burglar or an incen- diary, who has operated within the city limits. PUBLIC CORPORATIONS. ' 257 The following are among the extraordinary powers frequently conferred upon municipal corporations : — To erect wharves and charge wharfage, and it has been held in numerous cases that this power need not be granted in express words, but may be implied, if the city owns land bordering on the sea, a lake, or a navigable river. When a city erects a public wharf and charges for its use, it is bound to keep it in a reasonably safe condition, and if it fails to do so, like any private corporation, it is liable for damages with- out statutory enactment to that effect. It may be remarked that this rule is unlike that which applies to highways and bridges for the use of which no toUs are charged ; if the latter are defective and accidents ensue, cities and towns are not liable, unless made so by statute. To establish ferries; but a city cannot establish ferries so as to give them exclusive rights within defined limits unless it is expressly authorized to do so by its charter. To make and enforce stringent rules whereby dan- ger from fire may be diminished. Of such rules the following are familiar examples : that wooden build- ings shall not be erected in populous or business dis- tricts ; that buildings shall not be raised above a cer- tain number of stories, or, if so raised, that they shall be provided with fire-escapes ; that public halls and places of amusement shall be furnished with several places of exit and with spacious doors opening out- wards ; that merchandise of an explosive or combus- tible character, such as gunpowder or benzine, shall be kept in places specially provided for that purpose ; that chimneys shall be constructed in a prescribed manner and shall be subject to inspection ; that fresh 17 258 TALKS ABOUT LAW. ashes shall not be put in wooden boxes or barrels, ete. Municipal corporations generally have power to estab- lish fire departments, and to raise and appropriate money for their support. In case of fire, as in case of hostile invasion, " the public safety is the supreme law," and a city cannot be held liable to owners (un- less made so by statute) if its officials, in the exercise of a sound discretion, cause private buildings to be destroyed to prevent the spread of the conflagration. To do such acts, and to make and enforce such ordinances as may be necessary for the preservation of the public health. Under charter powers of this character, a city may procure a supply of pure water; may regulate the construction of private drains and water-closets ; may prohibit the throwing waste matter into streets and sewers, and the maintenance of cem- eteries, tanneries, slaughter-houses, swine-yards, etc., near centres of population and business. Of the powers that may be delegated to municipal corporations for the preservation of the public health, by far the most extensive and remarkable are those pertaining to quarantine. To prevent the introduction of conta- gious diseases a city may be authorized, if it is neces- sary, to isolate itself in great measure from the outside world, or, in other words, to impose and to enforce such rigid examinations of persons and merchandise as may, for the time being, have the effect of substan- tially barring them out ; for the interests of trade and the natural right of persons to pass from place to place must be held subordinate to the protection of the community from cholera, yellow fever, and other forms of pestilence. To suppress public nuisances; for example, such trades and occupations as, in consequence of their PUBLIC COEPOKATIONS. 259 location or the manner in which they are conducted, affect the community in general and seriously impair the enjoyment of life or the value of property. Under the head of nuisances may also be classed the keeping of disorderly houses, bathing in public places, and many other things that offend the sense of public decency. To establish and enforce local police laws and regulations. The powers already referred to for the prevention of fires, the preservation of the public health, the suppression of nuisances, etc., are often included under the title of police laws and ordinances. Such laws may also extend to a great variety of matters pertaining to the quiet and orderly govern- ment of the city or town and the comfort and well- being of its inhabitants ; such as the use of profane or obscene language in public, the regulation of drinking saloons and places of amusement, gaming, firing guns and making noises in public places, the use of fire- crackers, rockets, etc., fast driving in populous or much-frequented localities, leaving teams unhitched, keeping dogs, removing snow and ice from sidewalks, defacing buildings, fences, and shade trees, and the suitable punishment of drunkards, night-walkers, va- grants, jugglers, and persons of like character. To license, regulate, or tax certain employments, even though they may be clearly beneficial to the public ; for example, those of professional men, hack-men, omnibus companies, auctioneers, hucksters, innkeepers, bakers, butchers, market -men, provision dealers, etc. Such powers, however, are subject to modifications and re- strictions which cannot be enumerated here, and, where they exist, they must be exercised in a just and reason- able manner. They cannot be pushed to the verge 260 TALKS ABOUT LAW. of prohibiting a useful industry or occupation, or -of taxing it out of existence, or even of saddling it with oppressive and unequal burdens. Occupations inju- rious to public health and morals — such as selling opium and spirituous liquors, maintaining lotteries, and keeping gambling-houses and houses of ill-fame — have not the same natural right to existence and pro- tection, and municipalities may not only be empowered to license, regulate, and tax them, but instead thereof may be empowered to prohibit them altogether. Local option laws of this character, especially those that have been enacted in several states in regard to the selling of spirituous liquor, and in one or two states in regard to keeping houses of prostitution, have been bitterly contested, apparently on all possible grounds, and their validity can no longer be regarded as an open question, if they are properly framed and are not prohibited by the local or state constitution. To establish police or municipal courts for the trial of small suits, petty crimes, misdemeanors, and viola- tions of city ordinances, and the preliminary exami- nation of persons accused of serious offences. In a vast number of cases powers of which the above are examples are not mentioned in detail in general statutes or in special charters, but are based upon city by-laws or ordinances. Such ordinances, to be valid, must not be in conflict with the state or national constitution, or with the statute, or with the common law, and they must be, not only consistent with the municipal charter, but also fairly implied in, or inci- dent to, the powers therein conferred, or at least nec- essary to render them effectual. If a municipal or- dinance is not in violation of any constitutional pro- vision, and is authorised by the legislature in express PUBLIC CORPORATIONS. 261 words, it will be sustained, whatever it may be, for a court can hardly go to the extent of declaring that the legislative will, plainly expressed and unhampered by constitutional restrictions, is not law. Subject to this qualification, municipal by-laws and ordinances are void if they violate the spirit, though not the letter, of the general law, or if they are unreasonable. Whether they are unreasonable is generally considered a ques- tion of law for the court, though in Wisconsin, and perhaps in some other states, it is held to be a question of fact for the jury. In deciding such a question, the presumption is always that the by-law or ordinance is reasonable until the contrary clearly appears, and all the circumstances of the case must be taken into account, for what would be reasonable under some cir- cumstances would be highly oppressive under others. Thus, the public safety might require that large blocks in the heart of a city should be constructed of brick or of stone, while a similar ordinance, if applied to iso- lated dwellings in the suburbs or to farm-houses, would be an unreasonable interference with the enjoyment of private property. For like reasons, the owners of lofty factories and tenement houses might be required to provide fire-escapes, which the owners of warehouses of equal size could not be compelled to do. The fol- lowing cases may illustrate the extent to which this principle applies. The legislature of Ohio chartered a gas company, reserving the power of control and authorizing the city council to regulate the price of gas. Thereupon the council fixed the price at less than cost. It was held that the ordinance by which this was done was void ; that the power to regulate prices was sim- ply the power to fix them within reasonable limits, not to destroy the profits of a private corporation alto- 262 TALKS ABOUT LAW. getlier, and compel it either to retire from business or to do business at a loss. A municipal corporation in Pennsylvania prohibited the local gas company from opening paved streets from December to March for the purpose of laying mains. This ordinance was held to be reasonable and valid, " in view of the dif- ficulty of repairing the paved streets during the winter months." Encouraged by this decision, the munici- pality passed an ordinance prohibiting the gas com- pany from opening a paved street at any time for the purpose of laying pipes from the main to the opposite side of the street. It was held that the second ordi- nance was unreasonable and invalid, because its effect was " to compel the company to construct two mains, one on each side of the street, instead of one ; thereby materially increasing the expense of the company, and consequently enhancing the price of gas to the inhabi- tants of the district." A city in New Jersey passed a by-law under which it attempted to cut off the water supply of a tenement house, the owner being ready to pay for the same, until he should also pay the water rates which his tenant had formerly contracted in an- other tenement, the property of another owner. The by-law was held to be unreasonable and void. The city of Memphis passed an ordinance, ordering the arrest, imprisonment, and fine of all free negroes found abroad within the city limits after ten o'clock at night. The Supreme Court of Tennessee (1848) pronounced the ordinance void on the ground that it was unreasonable and oppressive. The common council of Baltimore passed an ordinance forbidding the erection or main- tenance, within the city limits, of any steam-engine or boiler without authority from the mayor, and author- izing the mayor to revoke any such permit upon six PUBLIC CORPORATIONS. 263 months' notice. The ordinance was held to be unrea- sonable and void. A Californian city, by ordinance, fixed one rate of license for selling goods that were within its limits, and a different rate for selling goods not within its limits. This was held to be an unreason- able discrimination, and therefore void. In Missouri it has been held that a by-law or ordinance may be declared void if it imposes an unnecessary burden on the community, such as laying out a sidewalk in a part of the city uninhabited and unconnected with other streets and sidewalks. It would appear needless to say, if such things were not of frequent occurrence, that any by-law or ordinance is unreasonable, against common right, and utterly void, if it specifies indi- viduals by name, or in any other arbitrary way, and imposes upon them burdens peculiar to themselves or withholds from them privileges enjoyed by the com- munity at large. The same may be said of any special privilege creating a monopoly ; for example, an ordi- nance requiring that all restaurants in the city, except " the Old Corner Eating House," shall be closed at a given hour. It is evident that most of the powers already re- ferred to in this chapter — and there are many more of like character — may at times seriously interfere with personal liberty or with the use and enjoyment of private property. They are, however, in no sense like arbitrary imprisonment, or the taking of private prop- erty for private uses without the consent of the owner, or for public uses without compensation. " Every one," says Blackstone, " 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 re- ceiving the advantages of mutual commerce, obliges 264 TALKS ABOUT LAW. himself to conform to those laws which the commu- nity has thought proper to establish." In other words, his natural right to do as he pleases (if there is such a right) and to enjoy his property as he pleases must be exercised with some consideration for the rights of others, and subject to such restrictions as the public safety and general welfare may reqiiire. Municipal corporations necessarily have, to a greater or less extent, the power to raise, borrow, appropriate, and spend money for public purposes. The history of these powers, so far as the courts are concerned, is, in too many cases, the oft-repeated story of extrava- gant imdertakings, of money borrowed and lavishly expended, of bonds issued, often for unauthorized purposes or in an unauthorized manner, of heavy taxes, of prolonged and expensive litigation, of munic- ipal and even of state evasions and repudiations, and of crushing losses to innocent and unsuspecting invest- ors. If the nature and limited extent of these powers were more generally understood, such unfortunate and disgraceful records would be comparatively rare. The subject, therefore, is of vital interest and importance to the public, as citizens, as tax-payers, and as invest- ors ; but it is one that can hardly be touched within the limits of this chapter. Without the power to raise money, municipal cor- porations could not exist, and, with rare exceptions, money for municipal purposes must be raised, first or last, by some form of taxation. In the broadest sense, taxes are burdens imposed by the government (state or national), or under its au- thority, to raise money for public purposes, or at least to accomplish ends of a public nature. There can be no such thing as taxation for private purposes, for to PUBLIC COKPOEATIONS. 265 compel tlie public to pay money merely for the ben- efit of private individuals or private corporations is robbery, not taxation. The Constitution of the United States prohibits the several states from passing any law impairing the ob- ligation of contracts ; from levying any impost or duty on imports or exports, except such as may be necessary for the execution of inspection laws ; from levying any duty on tonnage without the consent of Congress ; and from taxing the property of the national government. Subject to these and to like restrictions, and to such re- strictions as may be imposed by the state constitution, the power of the legislature is supreme, and may ex- tend in extreme cases even to authorizing the taking, in the form of taxes, of the fuU value of the property taxed. Such powers in regard to taxation as the state or its legislature possesses, it may delegate (unless re- strained by constitutional prohibitions) to municipali- ties for municipal purposes ; but " it is a principle uni- versally declared and admitted that municipal corpo- rations can levy no taxes, general or special, unless the power be plainly and unmistakably conferred, . . . either in express words or by necessary implication." In many states, cities and towns are authorized to make " betterments," or local improvements, partly or wholly at the expense of adjoining land-owners. The object sought is to distribute burdens as nearly as may be in proportion to benefits received, for the laying out of streets, the making of sidewalks, the construction of sewers, etc., generally enhance the value of adjoining property, and benefit its owners far more than they can possibly benefit the community at large. This system of taxation, however, has inherent defects of so grave 266 TALKS ABOUT LAW. a character, and is so pecuKarly liable to abuses, that its constitutional validity has been sharply contested in almost every state where it has been tried. It per- mits voters and tax-payers in general to impose heavy burdens, in which they do not share to any considera- ble extent and from which they derive an advantage, upon those who may happen to own real estate in a particular locality ; and thus the temptation to extrav- agant outlay by the many at the expense of the few is too often irresistible, especially as it is sanctioned by law and takes the guise of municipal progress and public spirit. It is also very difficult to make such assessments with approximate equality, and if they amount to large sums they may result in great hard- ship to individuals. For example : it is obvious that assessments for paving a street according to the valua- tion of the adjoining property would bear much harder upon owners of costly buildings than upon owners of vacant lots, although the benefits to each class might be nearly the same ; that assessments of so much per front foot would bear unequally upon lots of unequal depth, and, while they might fall lightly upon owners of business blocks, they might bankrupt owners of larger but less remunerative tracts of real estate in the suburbs ; and, even though the ultimate value of the property may be enhanced to the fuU amount of the assessment, that costly improvements which the owner does not need and cannot afford may cause his financial ruin. No system of raising money for pub- lic purposes has yet been devised which does exact justice to all ; and legislative acts and charters, under which the expense of public improvements may be as- sessed upon the adjoining property, to the extent of the special benejits conferred hy such improvements. PUBLIC CORPORATIONS. 267 have been sustained by an abnost uniform line of de- cisions ; beyond this, the decisions are very conflicting. " The most noted of extraordinary powers conferred upon municipal and public corporations," says Judge Dillon, " is the authority to aid in the construction of railways by subscribing to their stock, issuing negoti- able bonds as a means of paying their subscription, and taxing the inhabitants or the property within their limits to pay the indebtedness thereby incurred." Al- though some of the ablest lawyers and jurists in the country have been of the contrary opinion, it must now be regarded as settled by a long and abnost un- broken line of decisions, including those of the Su- preme Court of the United States, that legislatures, unless restrained by state constitutions, have power to confer this authority upon municipalities. On the one hand, railways share in the right of eminent domain, and, on the other, are, to a great extent, subject to legislative control ; they also subserve public ends of great importance, for they afford a means of easy and rapid transport, travel, and communication, and an- swer, with increased facilities, many of the purposes of public highways : for these reasons, although they are private corporations, it is held that, in the absence of prohibitions under the state constitution, the pubHc may legally be taxed to aid them. The wisdom of such a policy is more doubtful than its legality. It has much to recommend it, and its beneficent results in some oases can hardly be overestimated ; but, on the other hand, the frauds, corruptions, and abuses that have followed the granting of this power, the wide-spread belief that flourishing cities could be cre- ated almost anywhere simply by building railroads, and the " epidemic insanity " of running hopelessly 268 TALKS ABOUT LAW. into debt for such purposes, afford a pitiful story of the bankruptcy of hundreds, and the serious crippling of thousands, of towns and counties, as well as a shameless story of the oft-attempted and often suc- cessful repudiation of honest debts ; and in the inevi- table reaction many states have passed constitutional amendments prohibiting public taxation and the crea- tion of municipal indebtedness in aid of railway enter- prises and others of like character. Many charters provide that the municipality shall not contract debts beyond a certain per cent, of its valuation, or that it shall not do so except for cer- tain purposes or upon certain conditions, and in some states the same object is secured by constitutional en- actments. Under such circumstances those who eon- tract with the municipality do so at their peril, and if the per cent, is exceeded, or the purpose is not the specified one, or the conditions are not compKed with, they must suffer the consequences. It has been held in several states, and by the Supreme Court of the United States, that this rule must be applied even to the bond fide holders of negotiable bonds issued for value received. If this doctrine is sound in principle and wise in policy, it is, at least, extremely hard. It has called forth dissenting opinions from some of the ablest state and United States judges, and has rarely, perhaps, been sustained by an undivided court. If power is given to a city to issue securities that pass from hand to hand like bank-notes, and that are sold and are expected to be sold largely in distant states and in foreign countries, and, after being so issued for a val- uable consideration, they are repudiated in the hands of innocent purchasers, who cannot ascertain and can- not be expected to ascertain when the constitutional PUBLIC CORPORATIONS. 269 or charter limit of indebtedness is reached, or when conditions of a local character and of which they fur- nish no indication are unfulfilled, such securities would seem to operate as a snare and a fraud ; and they have, in fact, brought unmerited loss upon thousands of in- vestors, and financial dishonor upon hundreds of mu- nicipalities, and, to no small extent, upon the Ameri- can name. Whether one who, in good faith has paid a municipality for its void bonds can surrender them and recover his money, is also a question upon which the authorities do not agree. Generally speaking, re^ strictions of the character mentioned in this para- graph apply only to contract indebtedness, and afford no protection from suits founded upon torts, such, for example, as sxiits for damages caused by defective highways. " The legislature," says the Supreme Court of Con- necticut, " has immemorially exercised the power of dividing towns at its pleasure, and upon such division apportioning the common property and common bur- dens in such manner as to it shall seem reasonable and equitable." This, undoubtedly, is the general rule in regard to counties, cities, towns, village precincts, school and highway districts, and all public corpora- tions of similar character, provided the obligation of contracts and the means of enforcing them are not thereby impaired. They are territorial subdivisions of the state, incorporated for certain purposes of local self-government, and the legislature may alter their boundaries, or divide or unite them, or may carve from two or more municipalities a new municipality, and, subject to vested rights of creditors and other constitutional limitations, may divide their property and apportion their debts as it deems best, although 270 TALKS ABOUT LAW. the result may be a great increase of taxation in one locality and a corresponding decrease in another. The legislature, however, has no such power oyer funds and other property held in trust for specified pur- poses, and derived from gifts or bequests, not from taxation. In some respects New England towns are unique, although their general powers and duties are largely included among those already enumerated. " In the New England town proper," says DUlon, "the citi- -*zens administer the general affairs in person, at the stated corporate or town meetings, and through offi- cers elected by themselves. The towns are charged with the support of schools, the relief of the poor, the laying out and repair of highways, and are empow- ered to preserve peace and good order, maintain in- ternal police, and direct and manage generally, in a manner not repugnant to the laws of the state, their prudential affairs ; and for defraying these and all necessary and lawful charges, they may levy and col- lect taxes. Speaking generally, the New England towns are organized after the same model. . . . The town in New England, while somewhat anomalous, has some of the powers of a regular municipal corpo- ration, and some of the characteristics of the county organizations in many of the states. The New Eng- land town affords, perhaps, an example of as pure a democracy as anywhere exists. All of the qualified inhabitants meet and directly act upon and manage, or direct the management of, their own local concerns. This form of government was adopted at a very early period, and is firmly adhered to and deeply cherished by the people of the New England States. The result has demonstrated how well adapted it is to promote PUBLIC CORPORATIONS. 271 the well-being of the communities that for so long a space of time have thus governed themselves." The limits of this chapter wiU not permit a glance at English municipal corporations, which differ widely from our own in their origin and history, and also (though to a less degree since the law reforms of 1835) in their character. The origin, growth, and development of modern mu- nicipalities, and their vast influence, past, present, and future, for good and for evil, form one of the most in- teresting and important subjects that can engage the attention of the philanthropist, the sociologist, and the statesman. After the fall of the Roman Empire and the centuries of semi-barbarism that ensued, cities and towns began to arise in Europe of a character differ- ent from the old Roman municipalities. In Italy many of them were independent or substantially inde- pendent republics, that became, in consequence of the crusades, exceedingly rich and powerful ; and in that country and in southern Erance they were largely aris- tocracies, and, in some cases, close oligarchies. In Spain, for the purpose of creating populous centres as a barrier to invasion and of retaining territory con- quered from the Moors, municicipal charters of an ex- ceedingly Hberal character were granted as early as the beginning of the eleventh century. Feudalism, bad as it was, was better than the barbarism that preceded it, and under such scant protection as it afforded lit- tle cities and towns began to spring up aU over Eng- land, France, and Germany. Towards the end of the eleventh and in the twelfth and thirteenth centuries thousands of them had become strong enough to resist feudal oppressions, or influential or rich enough to se- cure powerful allies or to buy exemptions. The result 272 TALKS ABOUT LAW. was a multitude of municipalities, with more or less extensive, though precarious, charter or prescriptive rights. These municipalities did not as a rule aspire to complete independence of their feudal lords, and of course the rights granted to them, as well as the extent to which such rights were respected, varied greatly according to their powers of resistance, their means of making themselves feared or courted, and the character of their masters. In many cases kings granted charters and aided municipalities to secure money or favor, or to check the exorbitant power of their nobles ; in other cases free cities formed leagues, offensive and defensive, and became rich, powerful, and semi-independent. Thus for centuries, throughout the greater part of western Europe, two antagonistic principles, aristocracy and democracy, existed side by side and contended for supremacy. The powerful few lived in moated castles ; the powerful many, in walled cities. The former were the abodes of chivalry and military pride ; the latter, of trade, manufactures, and commerce. The nobles ruled the country ; the burghers ruled the town. Each class regarded the other as a menace to its security, as an encroachment upon its rights. The bondman (at least in England) who es- caped from his lord's domain to a free city became a freeman in a year and a day. Many of the cities be- came rich, and offered a tempting booty to their aris- tocratic neighbors. In those times petty war was the normal condition of society, and freemen could keep their wealth, their charter rights, and their liberties only by brave hearts and strong hands. Like the mountains of Switzerland, the cities and towns of England, France, Spain, Germany, and Italy became, to a greater or less extent, while the feudal system was PUBLIC CORPORATIONS. 273 a power, abodes of free institutions, and by means of free institutions they also became centres of wealth and civilization. On the continent, at a later date, tri- umphant monarchy in great measure crushed out the spirit of municipal freedom ; but it failed to do so in England, and that priceless lesson of local self-govern- ment was learned, which, in spite of the corruptions ■that fester in great cities, has been so universally adopted and so greatly improved upon in this country, and without which our government, notwithstanding its constitutional checks and its multitude of states, would inevitably become a centralized despotism. " Local assemblies of citizens," says De Toequeville, "constitute the strength of free nations. Municipal institutions are to liberty what primary schools are to science ; they bring it within the people's reach ; they teach men how to use and how to enjoy it. A nation may establish a system of free government, but with- out the spirit of municipal institutions it cannot have the spirit of liberty." " Of old sat Freedom on the heights, The thnndeis breakup at her feet ; Ahove her shook the starry lights, She heard the torrents meet. " Within her place she did rejoice, Self -gathered in her prophet-mind, Bnt fragments of her mighty voice Came rolling on the wind. " Then stept she down through town and field To mingle with the hmnan race, And part by part to men revealed The fnlness of her face." 18 CHAPTEE XXVn. PRIVATE COEPOEATIONS. Whether a corporation is public or private does not depend upon whetlier it is beneficial to a large num- ber of persons, or even to the entire community ; for all corporations are supposed to be created with a view, directly or indirectly, to the public welfare. It does not depend solely upon whether the functions of the corporation are of a public nature ; for many private corporations, having important public duties, cannot select their patrons or decline to serve any one who conforms to their reasonable rules and pays their es- tablished rates. They are public servants ; but they are very far from being public corporations. Neither does it depend solely upon the extent to which the cor- poration is subject to legislative control, unless such control is exclusive and (with few exceptions) unre- strained by private rights and interests ; for corpora- tions whose functions are mainly of a public nature are usually subjected to regulations in regard to their charges and their methods of doing business which would be extraordinary, and in many cases illegal, if applied to private corporations of a different character. For the purpose of earning money for their stockhold- ers, toU-bridge, turnpike, railroad, telegraph, telephone, and express companies, and other corporations of like character ; and for the purpose of accomplishing the PRIVATE COKPOEATIONS. 275 charitable intentions of their founders and benefac- tors, colleges, hospitals, and the like institutions, are — to promote the public good as well as their own — invested with certain rights, powers, and privileges, of which they cannot be arbritrarUy deprived. Such corporations cannot be created against their wiUs, as public corporations may be ; that is, they cannot be compelled to accept special^harters, neither can they be established without their consent by general legis- lative acts. When a private corporation has been established, when a charter has been offered and ac- cepted, a contract has been made between the state and the artificial beiag that it has created, a contract that cannot be — as acts of public incorporation, to a greater or less extent, may be — rescinded, altered, or modified except by consent of the corporation or by the terms of the charter. These are the distinguish- ing characteristics of private corporations : that they are not subject to the exclusive control of, that the whole interest does not belong to, the general or local government. If a corporation is operated to any ex- tent by private capital, or is owned to any extent by private stockholders, or is controlled to any extent by directors, trustees, or other officers acting under pri- vate rather than under public authority, it is a private corporation, even though the state may own by pur- chase or otherwise every share but one of its capital stock, and may have a corresponding vote at the elec- tion of its corporate officers and in regard to its gen- eral management. Private as well as public corporations are of very ancient date. They existed among the Greeks, were adopted by the Eomans as far back as the time of Numa Pompilius, and for the past six hundred years 276 TALKS ABOUT LAW. OP more have been an important factor in the civilizar tion of modern Europe. Since the beginning of the present century, however, and especially in this coun- try, they have multiplied to such an extent that " there is scarcely an individual of respectable character in our community who is not a member of at least one private company or society which is incorporated." Even within the memory of men not yet old there ■were comparatively few large fortunes in this country. The masses were neither rich nor poor. This compar- ative equality of circumstances was due, not solely to the fact that we inhabited a " New World," but quite as much, perhaps, to the long-cherished belief, in the North at least almost universally accepted as an axiom, that extreme wealth and extreme poverty ex- isting side by side are incompatible with the spirit of liberty and subversive of free institutions. The found- ers of our government, therefore, abolished entails and all like devices whereby property could be tied up for the benefit of remote descendants, together with the law of primogeniture, designed to aggrandize families at the expense of all except the eldest son. But joined to the manifest advantages of a comparatively equal distribution of wealth would be disadvantages, equally manifest, if it were not for corporations. Through their agency the small savings of hundreds of thousands, in more recent times of millions of peo- ple, have been combined to form the capital required for large commercial, manufacturing, mining, and even agricultural enterprises ; for constructing and operat- ing canals, railroads, telegraphs, and other means of communication ; for opening up and developing the resources of the country in a thousand different ways. Thus, through the agency of corporations, has been PRIVATE CORPORATIONS. 277 accomplished in decades what would otherwise have been the work of centui-ies. They have been found so convenient and effective, so well adapted to our in- stitutions, to the reliance of our people upon individ- ual rather than upon governmental enterprise, to their habits of thought and action, that a large and rapidly increasing portion of the business of the country is performed in this manner ; and, owing in part to the above causes, and in part to the divorce of church and state, the same may be said of religious, educational, and benevolent undertakings. Indeed, though the re- sult is far from being unmixed good, the United States has become known throughout the civilized world as preeminently The Land of Private Corporations. Both public and private corporations are divided into aggregate and sole. An aggregate corporation is one that is composed of three or more persons ; a corporation sole, of but a single person. Queen Vic- toria, in her official capacity, is a corporation sole. War and peace are made, laws are enacted, prosecu- tions, etc., are conducted, in her name. Nominally, at least, she is the head of the state. As individuals, kings and queens are born, and live, and pass away ; but, according to an ancient and established maxim of English law, while the crown endures, as a corpora- tion sole " the king can never die." Bishops, deans, parsons, and vicars of the Church of England are also corporations sole. In this country a few public offi- cials, dignitaries of the Roman Catholic and Episcopal churches, here and there a clergyman outside those denominations, and occasionally other persons, are cor- porations sole ; but they are few compared with the vast number of corporations aggregate. No further allusion will here be made to this class of corporations, 278 TALKS ABOUT LAW. and the distinction is perhaps less than it appears to be. In the one case a single person and his succes- sors, the representatives of many persons, in the other case many persons and their successors, their own rep- resentatives, are, in a certain sense and for certain purposes, constituted a single, ideal, artificial, and im- mortal being. Corporations are also divided into ecclesiastical and lay. For a brief consideration of ecclesiastical or re- ligious corporations the reader is referred to the chap- ter entitled Pulpit and Pew. Lay corporations are subdivided into eleemosynary and civil. " 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 class are many hospitals and institutions of learning. CivU corporations are those created " for a variety of temporal purposes." They include political or public corporations, many corporations designed for the advancement of knowl- edge, and all business corporations. " To show the advantages of these incorporations," says Blackstone, " 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 individuals which compose it might indeed read, pray, study, and perform scholastic exer- cises together, so long as they could agree to do so ; but they coidd 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 sufficient obligation. Neither could they be capable of retaining any privileges or immunities ; for, PRIVATE CORPORATIONS. 279 if such privileges be attacked, whicli of all this uiicon- nected 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 them- selves ? So, also, with regard to holding estates or other property ; if the land be granted for the purposes of religion or learning to twenty individuals not incor- porated, there is no legal way of continuing the prop- erty to any other persons for the same purpose but by endless conveyances from one to the other, as often as the hands are changed. But when they are consol- idated 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 collected from the sense of the majority of the individuals ; this one will may establish rules and orders for the regula- tion 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 immunities, the estates and possessions, of the corporation, when once vested in them will be forever vested, without any new conveyance to new successions ; for aU the individual members that have existed from the foun- dation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies." The same may be said of business corporations. Two or three, or even half a dozen men, if they can agree, may readily conduct a business, however extensive, as partners ; but as the number increases it becomes difficult or impossible to do so. If a partner dies, the firm is thereby dissolved. If a suit is brought in 280 TALKS ABOUT LAW. behalf of a firm, all of its members must be named in the writ ; if against a firm, all of its members must be named and service must be made upon each of them. If it has occasion to mortgage or sell real estate, all of its members must unite in the execution of the deed, and few persons would feel safe in accept- ing such a deed unless it were also executed by the wives of the partners. A single partner, however small his interest and however numerous his copart- ners, has the power not only to defeat such a con- veyance, but also, ordinarily, to dissolve the firm at any moment, and always to bring upon it inconven- ience and disaster, if not absolute ruin. Further, each member of a partnership is individually liable for all of the partnership debts. It is obvious that an ordinary business partnership composed of a thou- sand, or even of a hundred members, could do noth- ing, even if they, contrary to all human experience, were substantially unanimous in their ideas. Before such a firm could fairly begin business, it would be dissolved by death ; before a creditor could obtain complete service of a writ, in all probability his for- tune would be exhausted ; before a purchaser of real estate could obtain a clear title, he would die of old age ; and lastly, but not least, both the partnership and the private property of every individual would be more or less at the mercy of a single rash, dis- gruntled, or pig-headed member. Such partnerships, and the difficulties that brought them to speedy and utter ruin, are neither imaginary nor exaggerated. They existed in Europe before the general adoption of business corporations, and, in some respects, they were found to be more unwieldy and helpless than the ancient Polish Diet, which, it is said, consisted of PRIVATE COEPORATIONS. 281 sixty thousand nobles who met armed and on horse- back, and which could neither enact any law nor le- gally transact any business except by unanimous vote. By means of business corporations these difficulties are obviated, and a thousand or ten thousand persons can unite their small savings for the prosecution of some great enterprise with nearly the same ease and economy, and with far greater safety, than a Rothschild or a Vanderbilt could, as an individual, furnish his millions for a like undertaking. This is possible, it is easy, because, however numerous the stockholders and however frequently changes may occur among them, they are, for the purposes of the business, a single, invisible, intangible, immortal being, existing only in contemplation of law, yet having recognized rights, powers, duties, and responsibilities. In a sense they compose the corporation; yet, as individuals, they have no ownership in its property and no legal au- thority over it. They can even make contracts with it as a distinct person. In theory of law it is a distinct person, and, for some purposes, it is a citizen. Perhaps nothing could more forcibly illustrate its legal status as a person than the following doctrine, which has been repeatedly declared by courts and which is unquestion- ably settled law : If aU of the stockholders, directors, and officers of a corporation, at their respective homes or places of business, sign their individual names and affii their individual seals to a deed of corporate prop- erty, it is not the deed of the corporation, and, so far as corporate rights are concerned, it is waste paper. Further (except perhaps by the sanction of all persons interested), though acting in the corporate name, they can bind the corporation only at a meeting duly called and legally convened. 282 TALKS ABOUT LAW. In order to accomplish the purposes for which they are created, all corporations aggregate have the follow- ing incidents, subject, more or less, to modifications and restrictions : 1, To have perpetual succession, usually by electing new members in place of those removed by death or otherwise ; 2, to sue and be sued by their corporate names ; 3, to buy and sell real and personal property ; 4, to have and use a common seal ; and 5, to make such rules and by-laws as are necessary for their own government. Religious, literary, social, and other corporations of like character, usually have the power to expel or suspend offending members ; but, as a rule, business corporations cannot do so. It was an ancient rule of the common law that a corporation could make no contracts except contracts under seal. While one can easily imagine how ordi- nary business must have been impeded by this solemn method of transacting it, the more important legal consequences wiU be better appreciated when we con- sider the vital distinctions in point of law between sealed and unsealed contracts. As a matter of fact, it was found to be practically impossible to enforce the rule, even in regard to the early English corporations, which were mainly municipal, ecclesiastical, educa- tional, and eleemosynary, and in cases of " convenience almost amounting to necessity," such as the employ- ment of servants, the purchase of provisions, etc., the contracts of corporations, though not under seal, were held valid as far back as the reign of Henry VII. With the growth of business corporations, the rule was, of necessity, stiU further relaxed, and although vestiges of it stiU remain in England, it has been finally aban- doned in this country, where the doctrine has become firmly established that corporations, within the scope PRIVATE CORPORATIONS. 283 of tteir authority, have the same powers as natural persons to make unsealed contracts. The restriction to contracts within the scope of their authority applies to private as rigidly as to public corporations. In all dealings with corporations it is i important to bear this rule in mind, as it has been a source of loss*to tens of thousands of unwary persons. It was dwelt upon, however, at some length ia the preceding chapter, and but a single further illustration will be given here. Before the construction of the Mount Washington Railway a company was incorpo- rated to make and keep in repair a road to the sum- mit of the mountain, to take land for that purpose, to build or lease and use toll-houses, to take tolls, etc. It appeared that the carrying of passengers might be an additional source of revenue, and accordingly the proper agents of the company contracted for the man- ufacture of a number of coaches for that purpose. When the corporation was sued for the price of the coaches, it was held that authority to buy and use such property could not be inferred from authority to make a road and take toUs, and, therefore, that the contract to pay for it was void. It was also held in the same case, that the corporation could not by any subsequent action ratify a contract which it was not authorized to make in the first place. A corporation cannot commit a crime punishable only by imprisonment or death, for it is an imaginary person ; neither, say Coke and Blackstone, can it be excommunicated, "for it has no soul." A corporation, however, may be prosecuted criminally for a misper- formance or a neglect of its duty, and, upon conviction, it may be punished by fine and sometimes even by the forfeiture of its franchise. 284 TALKS ABOUT LAW. Mauy private, as well as most public, corporations, are invested vrith the power of taking land without the consent and against the will of the owner. This power is derived from what is known as the right of eminent domain, — the right which governments nec- essarily retain over the estates of individuals to re- sume them for uses of a public nature. "If a state has occasion to build a prison, it is not dependent upon the consent of the proprietor of the desired spot ; it can take the land, and, when its just value is ascer- tained, the late owner will be entitled to payment. In like manner, if invested with authority from the state, cities, towns, and public corporations in general may take such property as they require for public uses, and will be bound to pay for the same. This power — although in many cases the United States can exercise it only through the agency of state leg- islatures — is one of the essential attributes of gov- ernment. Without it, the public might, in a sense, be at the mercy of an individual. Though govern- ment itself can exercise this power only for uses of a public nature, it may, for such uses, delegate it to private corporations and to private individuals, sub- ject, however, to this qualification, — that no one can be compelled to accept the credit of a private corpora- tion or a private individual, and that payment must be made or tendered before the land is taken. As we have already seen, there are many private corporations whose duties are largely of a public char- acter, and if they were not empowered to take land, if a single person could act the part of the dog in the manger, the beginning and the end of the nineteenth century might be the same so far as facilities of travel, means of communication, diffusion of ideas, etc., etc., PKIVATE CORPORATIONS. 285 are concerned. With regard to railway and like en- terprises, therefore, the right to take land without the consent of the owner is weU understood, and its rea- sonableness is universally admitted. A large portion, however, of the business that is performed by private corporations, while greatly benefiting the public, is not so clearly of a public nature, and the question has frequently arisen, " What is a public use within the meaning of the law ? " It has been answered very differently by different courts. In this country many of the earliest private corpo- rations and private industries, recognized as also hav- ing a public character, were saw and grist-mUls. The first grist-mill of this kind in New England was the Nepouset mill, erected in Dorchester, Massachusetts, in 1634. It was aided by a public grant of a water privilege, etc., on condition that the grantee should " sell the alewives he took there at five shillings per thousand and not sell or convey the mill without eon- sent of the plantation." Later, the town of Groton, Massachusetts, made similar grants for a grist-mill and a saw-mUl, imposing certain conditions as to grinding corn and sawing lumber. During the first century and a quarter of New England history in- stances of this kind were numerous, showing that in- dustrial pursuits indispensable to the settlement of a new country were then regarded as having a public as well as a private character. In recent years, one of the most important questions with which courts have had to deal is, whether mills and factories, erected for the profit of their owners and stockholders, are so far of a public nature that the legislature can authorize them to appropriate lands without consent of the owners i in other words, whether such appropriation is a public 286 TALKS ABOUT LAW. use. This question has frequently arisen under the flowage acts, so called, which have been passed by all of the New England States and by many others. On the one hand, it is urged that a public use " im- plies a possession, occupation, and enjoyment of the land by the public at large, or by public agencies ; " as, in the case of a railroad, " the right of the public to the carriage of persons and property upon tender of the toUs, and the power of the state to control the fran- chise and limit the tolls." " The true criterion," it is said, " is whether the objects, uses, and purposes of the incorporation are for public convenience or private emolument, and whether the public can participate in them hy right or only by permission." In this re- stricted sense, of course, the use of land and interests in land for manufacturing and similar purposes is not a public use, for, while the public " may use certain uSeful products of miUs and factories, provided they pay the price which the manufacturers set upon them, ... it is precisely the same of the products of a farm. ... If the legislature can annex land to a water power, without reserving or securing any rights to the public in respect to its use, they can annex it to a farm in the same way. The products of the factory can be no more necessary or useful than those of the farm, for bread is the staff of life. Mills and factories may be highly beneficial to the community, but not other- wise than as all legitimate or useful industry is bene- ficial to the state." " It is no answer," say the advo- cates of a strict interpretation, " that compensation is sufficiently provided for. If Naboth's vineyard should not have been taken, even for a king, for his private uses, upon any compensation, the rights of the citizen in a constitutional government should be equally well PRIVATE CORPORATIONS. 287 protected." " Whenever his property is sought to be taken under pretence of public necessity or conven- ience, the owner must find protection in the courts, or our institutions have failed of their great purpose — the complete security of private rights." The posi- tion that public uses should be rigidly defined, exclud- ing everything in which the public does not partici- pate directly and as a matter of right, is maintained with great ability and power by some of the most dis- tinguished writers and jurists, among whom is Judge Cooley. On the other hand, it is said that such a construc- tion would be suicidal, especially in states mainly de- pendent for their prosperity upon manufacturing in- dustries ; that, if it were not for manufactures, it would be impossible for rocky and barren New England to compete with the fertile West, that her hill farms would be abandoned, that her cities and her villages would fall into decay, that her industrious and enter- prising citizens, her laborers and her capitalists, would go elsewhere, and that only a miserable and poverty- stricken remnant would be left. Why, it is asked, should an owner of land bordering upon a lake or its outlet, by demanding an extortionate price, or by re- fusing to sell the right of flowage, have it in his power ■' ( to prevent a village, now insignificant, from becoming a Manchester or a LoweU, furnishing employment and subsistence to thousands of families, growing to be a centre of industry, commerce, enterprise, and wealth, and adding to the value of every house and every farm within a radius of fifty miles ? Such a use, it is contended, though less directly, is none the less truly a public use than the taking of land for a highway or a railroad. One after another, many courts, espe- 288 TALKS ABOUT LAW. cially those of manufacturing states, have adopted this construction, and it has finally (1885) received the sanction of the Supreme Court of the United States. In ordinary conversation, and even in scientific works, — unless they are describing the revolutions of the heavenly bodies, — astronomers speak of the sun- rise, and the expression, though scientifically incor- rect, is simple and proper and can mislead no one fa- miliar with the elements of astronomy. In like manner I have just spoken of the power of corporations to take land, and have quoted eminent judges and authors who constantly use the same expression without the slightest danger of misleading their professional read- ers. To speak with entire accuracy, however, no cor- poration, public or private, without the owner's con- sent, can take land in the sense of acquiring a title to it in fee simple, that is, absolute ownership ; what it can take is simply an easement, the right to use it for certain purposes. For example : A charter is ob- tained to lay out, construct, and operate a certain line of railroad ; the survey intersects Smith's farm ; dam- ages are assessed and paid, and a strip of the required width is fenced in ; but the title to the land remains in Smith and cannot be taken from him. If trees are in the way, they may be cut down ; if they are not in the way, the corporation has no more right to cut them down or to take the fruit that grows upon them than it would have if they stood upon the other side of the fence. If the grass beside the track becomes dry and combustible, the corporation may remove it as a pre- caution against fire, may even be liable in damages LE it does not do so ; but if the grass does not, or at least may not, interfere with the safe or convenient opera- tion of the road, it is as much Smith's as if it grew in PRIVATE CORPORATIONS. 289 his field. Further, if the corporation is dissolved and its franchise ceases to exist, its interest in the land at once reverts to Smith, or to his heirs, grantees, or legal representatives. In a word, during its artificial life, which may be forever, the corporation owns the right of way and nothing more ; subject to this right of way, Smith owns the land. This principle applies to all corporations that have power to take land for public uses ; it applies even to the state and national govern- ments. One of the most notable features of a typical private corporation is the exemption of its stockholders from personal liability for its debts. If a corporation has been legally created, if its organization has been le- gally maintained, and if there is no special provision in its charter or in the statute law of the state provid- ing for assessments or superseding the rules of the common law in regard to personal liability, one who buys stock may lose his investment by the bankruptcy of the corporation, but he can lose nothing more. " The law recognizes only the creature of the charter, and knows not the individuals." This is the rule ; but not all corporations are typical, governed in every re- spect by common law principles, and, because an asso- ciation passes under the name, and partakes more or less of the character of a corporation, it does not fol- low as a matter of course that those who compose it may not be held liable, personally, jointly and sever- ally, for aU of its debts. In England, and in not a few of the United States, many insurance, banking, trading, manufacturing, and other companies, either created by special act or organized under general stat- utes, possess a character intermediate between regular corporations and mere business partnerships. Many 19 290 TALKS ABOUT LAW. of them, especially in this country, are classed as cor- porations, and differ from regular corporations only in the fact that their stockholders are subjected to a limited or to a contingent liability. On the other hand, many of these companies, especially in Eng- land, are more like gigantic partnerships, the charac- teristics of corporations being chiefly confined to their facilities for transacting business. The creation of irregular manufacturing corporations was especially favored by the legislative policy of Massachusetts from 1809 to 1830. They offered, of course, great security to creditors, but as the ownership of a single share might cost a man his entire fortune, they were found to be a too hazardous form of investment ; and, for this reason alone, even in those early times, Mas- sachusetts men expended millions of dollars, which they would otherwise have expended at home, in building up the manufacturing industries of neigh- boring states. In order that corporations may subserve the purposes for which they are created, and honestly and faithfully perform their public and private duties, they are subject to what is known as visitation, that is, to the inspection and control of tribunals recognized by law. Civil corporations — a term that includes all public or political and aU private business corporations — are visited by the government through the agency of its courts of law or of equity ; and political corporations, almost without exception, and business corporations, to a great extent, are also required by statute to make periodical reports of their receipts, expenditures, as- sets, and liabilities. Public institutions, such as pris- ons, reformatories, hospitals, almshouses, and the like, are usually visited by public officials acting under the PRIVATE CORPORATIONS. 291 authority of local statutes. In the ordinary and more restricted sense, however, the power of visitation ap- plies only to charitable and religious corporations, and is exercised, not by courts or by public officials, but by private persons, or by boards of trustees origi- nally deriving their authority from private persons. In England, the origin of a corporation may have been either by prescription, by royal charter, or by act of parliament. Immediately before the Norman Con- quest the Saxon, and immediately after it the Norman nobles assumed the prerogative of conferring cor- porate privileges. For this reason, — although the prerogative soon passed exclusively to the crown, — and also on account of the illiteracy of the times, in many cases no records were preserved, and the origin of not a few corporations faded from the memory and from the traditions of men. These corporations — most of them municipal, a few of them eleemosynary or reli- gious — either have no charters, or else their charters, like that of the city of London, merely recognize and confirm rights and powers that were exercised, " time whereof the memory of man runneth not to the contrary," and which originated no one can tell when or how. Whether they once had charters and lost them, or whether, perhaps a thousand years ago, they assumed corporate powers without authority, is imma^ terial ; they hold such powers by immemorial usage and are said to exist by prescription. Corporations exist by prescription on this, as well as on the other side of the Atlantic ; but they are few, owing to the youth of the country and the general preservation of records. Of American corporations that were created in colonial times by royal charter, there are still quite a number, L|qt.h public and private, among the former being the 292 TALKS ABOUT LAW. city of Annapolis, Maryland, chartered by Queen Anne. With these few exceptions, amounting pro- bably to less than one in a thousand, all corporations in this country have either been created by special or have been organized under general legislative acts. In various states general acts of a very liberal charac- ter have been passed, and under some of them corpo- rations may be formed almost as easily as business partnerships, without special charters, and with only such formalities as are considered absolutely necessary for the protection of the public. In New Hampshire they may be organized in this manner for all lawful purposes except banking and the construction and maintenance of railroads, and in Massachusetts and in some other states there is a general railroad act. In this and in the preceding chapter corporations have been spoken of as immortal beings. This ex- pression — almost invariably used by authors, judges, and lawyers — is to be taken in a somewhat Pick- wickian sense. As was stated in the preceding chap- ter, subject to the rights of creditors, and also, gener- ally, to the uses for which their property was designed, public corporations may be dissolved by legislative act. At the present time, many private corporations are created only for definite periods, at the expiration of which they must renew their charters or wind up their affairs. Even if created for indefinite periods, they may be dissolved by the death or loss, without choice of successors, of all their members, or of so great a part as to render them incapable of acting ; by sur- render of their corporate rights; or by forfeiture of them for neglect or misconduct. In a word, they are immortal in the sense that governments are immortal; they may perish at any time, or, if all conditions are PRIVATE COKPORATIONS. 293 favorable, their existence may possibly be coequal with that of civilized man. There are corporations, such as cities and great universities, that have survived the changes of a thousand years, and, so far as human foresight can extend, are likely to survive those of thousands of years to come ; but, on the other hand, numberless incorporated companies are merely crea- tures of a day, in some cases their most enduring memorials being the losses of the many and the illy gotten and quickly dispersed gains of the few. CHAPTER XXVni. CONTKACTS. It is scarcely an exaggeration to say that the history of Rome is the history of the world for a period of centuries ; the history of famous states, great kingdoms, mighty empires, and their reduction to mere provinces; of conquests pushed in all directions, even into the fastnesses of barbarism ; of a sway and a civilization extending from the Pillars of Hercules to the sands of Persia and Arabia, from the frozen north to the Afri- can deserts. The position of contracts in law may be compared to that of Rome in history ; for one can no more discuss the rules that pertain to any business or domestic relation independently of the former than he can write a history of Egypt or of Palestine without referring to the latter. Nothing but a hasty glance, therefore, at this vast and important subject can be attempted here ; anything more than this would re- quire volumes, instead of pages. Contracts are divided into simple and special. By ancient usage, judgments and recognizances are termed " contracts of record ; " but in most cases they are far from being contracts in fact, and they can be classed as such only by legal fiction. A simple contract is one not under seal. All con- tracts (except the so-called contracts of record) are simple, unless they are sealed. CONTRACTS. 295 Contracts may be either executed or executory. An executed contract is one, the conditions of which have been performed ; an executory contract, one the conditions of which are to be performed. If the con- ditions have been performed by only one of the par- ties, it is executed as to him and executory as to the other. A simple executory contract is defined by Black- stone as " an agreement, upon a sufficient consider- ation, to do or not to do a particular thing." It may be either express or implied. It is express if the terms and conditions are definitely agreed upon, whether in writing, orally, or even by signs, as by nodding one's head to an auctioneer. If one buys a barrel of flour, or hires a carpenter, at an agreed price, he makes an express contract. If he orders the flour, or employs the carpenter, saying nothing about the price, he makes an implied contract to pay what the flour or the work is reasonably worth at current rates. Further, if A sends B goods that have not been or- dered, or voluntarily works for him, with his knowledge and without his dissent, nothing being said by either party, by accepting the goods or the labor B impliedly contracts to pay therefor unless the circumstances are such that he has a right to suppose that a gift was intended. The obligation in many cases to pay for papers and periodicals, not subscribed for but regularly taken from the post-office, is a familiar illustration of this principle. Although they are often confounded with each other, there is a wide difference between implied contracts, like those just mentioned, and contracts implied by law. Indeed, the latter can be classed as contracts only by a legal fiction. If a man denies his wife 296 TALKS ABOUT LAW. suitable food and clothing, it is certainly a fiction to say — as the law does say — that he has promised and contracted to pay the trader who has furnished them to her in violation of his express commands. So, inde- pendently of a criminal prosecution, an owner of stolen goods has a choice of four different kinds of action against the thief, — assumpsit, trespass, trover, and replevin, — by the first of which he may treat the theft as a sale, for the law wiU imply a contract on the part of the thief to pay for what he has taken. In a word, the law will imply a contract in many cases where none in fact exists or can exist; the fiction that one has promised to pay what he is morally and legally bound to pay can work no hardship, and it often enables one to obtain justice more completely than he otherwise could, and by a more simple and convenient form of action. Although it is a familiar saying that " it takes two to make an agreement," people often get into trouble by trying to agree with themselves. For example : an agent is employed or a guardian has occasion to sell securities of his principal or his ward, and, wish- ing to purchase such securities, it may seem to him proper to transfer them to himself and account for them at the market price, a transaction apparently for the benefit of both parties, as it saves the commissions. This, however, he has no right to do, and he may be held responsible for the act, unless it is subsequently, with a knowledge of the facts, acquiesced in by the principal or by the ward after the wardship has termi- nated. As agent or guardian, it his duty to make aU fair and reasonable efforts to sell the securities for as much as he can get ; as an investor of his own money, it is his interest to buy as cheaply as possible. " No CONTRACTS. 297 man can faithfully serve two masters whose interests are in conflict ; and, as men usually and naturally prefer their own interests to those of others, where one attempts to act in a fiduciary capacity for another, the law will not allow him, whUe so acting, to deal with himself in his individual capacity." In some states courts carry this principle to the extent of holding that one cannot make a valid contract with a board of public officers of which he is himself a member ; that a member of a city government, for example, cannot make a contract with the city to grade a street or erect a city hall, no matter how fair the contract and how free from undue influences. In other states this prin- ciple is less rigidly enforced. As there can be no agreement unless the minds of at least two persons meet in regard to the same thing, it follows, generally speaking, that an offer to buy or to sell is not binding until it is accepted. If A offers B a horse at a certain price, he can retract his offer at any time before acceptance, and B has no ground of complaint ; but if B accepts the offer before it is retracted, and tenders payment, he will be entitled to the horse (unless the trade is within the statute of frauds, a subject to be considered hereafter). It is the same if the offer is made to the general public, instead of to a single individual. If a jeweller puts a $50 watch in his show window and marks it §25, it is an offer to sell at that price ; if a stranger enters and tenders the money before the price mark is removed, he will be entitled to the watch, and if it is refused he can maintain a suit. If negotiations are conducted by mail or by tele- graph, the contract is complete when an acceptance (afterwards duly received) is posted or dispatched, 298 TALKS ABOUT LAW. provided it is done within a reasonable time and before receiving notice of a withdrawal of the offer. If A in Chicago telegraphs to B in Boston that he wiU sell him a hundred thousand bushels of corn at sixty- cents a bushel, and five minutes later retracts his offer, and B, upon receipt of the first despatch, telegraphs an acceptance, the contract is complete although the second despatch may be on its way. The agreement or mutual consent indispensable to a valid contract must be that of persons having some degree of mental and legal capacity. As we have seen, minors and insane persons are to a great ex- tent incapable of making contracts ; the first class on account of immature, the second on account of disor- dered, intellect. So, as we have also seen, at common law married women have not even the limited^contract- ing capacity of minors and lunatics, " their very exist- ence being merged in that of their husbands." Con- tracts made between alien enemies, that is, between citizens of two countries at war -with each other, are illegal, unless made with the sanction of constituted authorities ; and ordinarily contracts made between aliens in time of peace are suspended by the break- ing out of war and revive at its termination. By the strict rule of the common law, also, an alien, whether friend or enemy, cannot hold land by purchase or by inheritance ; but this rule is contrary to American policy, and probably in all of the states it is either obsolete or has been abolished by statute. To make a valid contract the parties must be free to act as well as competent. An agreement extorted by compulsion, technically known as duress, is not binding. According to the older decisions, duress in- cluded little more than unlawful restraint of liberty, CONTRACTS. 299 actual or threatened, or actual or threatened violence inducing a reasonable fear of loss of life or disabling bodily injury. " This limited sphere for the opera- tion of the doctrine," says Judge Metealf, " is charac- teristic of the age in which it was thus limited ; an age in which personal valor was deemed to be in a great measure its own reward, and when one who chose to resort to the law for redress of minor injur ries was regarded as homo vanus et meticulosus.^ Since then the condition of society has changed ; Robin Hoods and feudal barons no longer extort promises and hold prisoners to ransom, and duress — which now includes almost any illegal pressure resulting in a forced agreement — usually occurs in an abuse or a threatened abuse of the forms of law. It is duress where an agreement is made to avoid arrest upon a trumped up suit, or upon a writ void on its face ; but not if the claim, being valid or even doubtful, is hond fide and the writ is properly drawn. So it is duress where an agreement is made to pay what is popularly known as black mail, that is, to pay money or render some service to hush up infamous reports, whether true or false ; or to escape a criminal prosecution, though regular upon its face and for a crime actually committed, if the object of the prosecution is merely to further private ends regardless of a due adminis- tration of justice. An agreement extorted by menac- ing a near relative or friend is made under duress ; and where the father of a defaulting bank cashier gave his note for the amount of the defalcation, in con- sequence of threats to prosecute his son for embezzle- ment and to prevent such prosecution, it was held that the note was void. Fraud, as well as duress, renders a contract voida- 300 TALKS ABOUT LAW. ble so far as the injured party is concerned. If one buys goods and discovers that he has been cheated, he may keep them and bring a suit for damages, or if he prefers, he may return them and claim his money provided he does so promptly. But there are many acts of sharp dealing, many things which no honorable man could do, which do not amount to such fraud in law as will render a contract voidable. " Caveat emp- tor " (Let the buyer beware), is an ancient maxim. " The common law affords to every one reasonable pro- tection against fraud in dealing; but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indif- ference to the ordinary and accessible means of infor- mation." If the parties meet on equal terms and have the same means of information, and if nothing is done to divert attention or conceal defects, there can be no fraud in law ; for, though the good§ may be defective, the vendor is under no legal obligation to point out defects which any one may see if he will look for them, and, though the vendor may say they are better and more valuable than they are, even then the buyer is supposed to rely upon his own skill and judgment. If he has a full and fair opportunity to do so, he must look out for himself or suffer the consequences of his own imprudence. But, if the vendor covers up and con- ceals defects, or if he misleads the buyer and puts him off his guard in order that he may not discover them, or even if he fails to point out defects which the buyer has no means of discovering for himself, he is guilty of a fraud in law which renders the trade voidable. As this principle relates to matters of every-day occurrence a few illustrations may not be out of place. If a jeweller sells a chain out of fashion and worth CONTRACTS. 301 only the intrinsic value of the metal, he is not bound to make that fact known, because it is of such a na- ture that the purchaser can discover it for himself ; but if he knowingly permits a customer to buy a plated chain supposing it to be solid, he is guilty of a fraud, even though he says nothing to create the false impression, for the chain is not what it appears to be. So, in selling a horse, one is not bound to disclose the fact that it is blind, but only to refrain from doing any- thing to conceal the defect or to prevent the purchaser from discovering it, and it has even been held that one who buys a blind horse, with an opportunity for exam- ination, is not protected by a general warranty of soundness ; but, on the other hand, if the defect is one that cannot be discovered by reasonable diligence, the law requires the seller, if he is aware of it, to point it out. So, in selling a house, if the owner falsely says that he has been ofEered a certain sum, and thereby in- duces the purchaser to pay more than he otherwise would, it is a " naked lie," not a fraud in law, for the purchaser can ascertain for himself the market value of the property ; but if the owner falsely states the amount of rent he receives, thereby getting an extra price, it is a fraud which renders the sale voidable, be- cause the amount of rent is a fact vdthin the private knowledge of the landlord and his tenant, and by col- lusion they may easily impose upon the purchaser. So, says Lord Thurlow, " if A, knowing there to be a mine on the estate of B, of which he knew B to be ig- norant, should enter into a contract to purchase the estate of B for the price of the estate without consid- ering the mine," the transaction would be legal, for B has the same opportunity that A has to discover the mine. But, says Lord Eldon, " a very little is suffi- 302 TALKS ABOUT LAW. cient to affect the application of that principle. If a word, if a single word, be dropped which tends to mis- lead the vendor, that principle will not be allowed to operate." The rule in equity is even more strict, and, while a conveyance of land containing a mine, of the existence of which the purchaser was aware and the seller was not, would be unimpeachable in law, pro- vided nothing were done to mislead, a court of equity would not, under such circumstances, enforce the spe- cific performance of a covenant to convey. " When the aid of a court of equity," says Chancellor Kent, " is sought to carry into execution such a contract, then the principles of ethics have a more extensive sway ; and a purchase made with such a reservation of superior knowledge would be of too sharp a character to be aided and forwarded in its execution by the powers of the court of chancery." It is a curious fact that a heathen philosopher should advocate rules of business morality which "some of the best ethical writers under the Christian dispensation . . . com- plain of ... as being . . . too sublime . . . for act- ual use," and which are rejected by the courts of all Christian lands " as being of too severe and elevated a character for practical application or the cogni- zance of human tribunals." Cicero ^ supposes the case of a corn merchant arriving at a port in time of scarcity, knowing that other supplies are on the way, and insists that he would be bound in good conscience to proclaim the fact, instead of quietly taking advan- tage of the market. To render a contract binding it must not only be between competent parties, voluntary, and free from fraud ; it must also be free from mistakes affecting the 1 De Officiis, lib. 3, §§ 12-17. CONTRACTS. 303 identity of persons and things. For example, if a publishing house makes a great novelist an offer for a story, it is not an offer to another man of the same name into whose hands it maj' happen to fall ; and if the latter claims the right to accept it, it is a sufficient answer to say, " You are not the person intended, and it is not the product of your brains that we have of- fered to buy." So, if A should suppose that he was selling a certain one of several horses to B, and B at the same time should suppose he was buying an- other, the minds of the parties would not meet and no sale would be effected. The rule applies if the mis- take affects a substantial part of the subject matter of the contract ; as where, in selling a farm, the grantor understands that the trade is only for the home place and the grantee understands that it includes an ad- joining wood lot or pasture, and the transaction may be avoided, even though the price has been paid and a deed has been given. But if the mistake is only on one side, and is due to fraud on the other, the innocent party may claim the benefit of the bargain and sale as he had a right to understand it, by a suit at law for damages, or, if he prefers, by a suit in equity to com- pel such conveyance as justice may require. Whether a mistake of law, as weU as one of fact, may be ground for avoiding a contract is a question that has been elaborately discussed for generations, the result being an irreconcilable conflict of authority and numberless fine distinctions, many of them visible only to their inventors. A simple contract is an agreement "upon a sufficient consideration," etc. A naked promise to pay money or to do or not to do some specified thing is not bind- ing. The law will not compel a man to give some- 304 TALKS ABOUT LAW. thing for nothing, and wUl not enforce a promise to do so, even though it is made in writing. Promissory notes, checks, and bills of exchange are no real ex- ceptions to this rule, for, without a valuable consid- eration, they cannot be collected unless they are made payable to order or to bearer, and pass into the hands of bond fide purchasers before they are overdue. A gratuitous service is not a consideration suffi- cient to support a subsequent promise to pay for it. If a man saves another's property from fire, or, at the peril of his own life, rescues him from drowning or from robbers, or pays his debts, or does him any other great service without previous request, and if the re- cipient of the benefit thereupon promises to pay his benefactor and gives him his note, the promise cannot be enforced, the note has no validity: there was no ■ contract, express or implied, and a mere promise can- • not create a contract or transform a debt of gratitude into a debt in law. " Perhaps it is better for the pub- lic," says Chief Justice Eyre, " that these voluntary acts of benevolence from one man to another, which are charities and moral duties but not legal duties, should depend altogether for their reward upon the moral duty of gratitude." Salvage, or the compensa- tion allowed by courts of admiralty for saving ships and goods from wreck, pirates, public enemies, etc., on the high seas, is an exception to the rule that nothing can be recovered for voluntary acts ; but it is no ex- ception so far as the law of contracts is concerned, for it is founded, not upon contract, but upon the ma- rine policy of civilized nations. A promise to pay, though made before the act, for doing what is a legal duty regardless of such promise, is without consideration. If a merchant tells a clerk CONTRACTS. 306 that he will give him a hundred dollars if he will be honest, if a captain offers a mutinous seaman extra pay if he will obey reasonable orders, if a tax-payer agrees to reward a public watchman for guarding his buildings, if the owner of a burning house promises a fireman a sum of money if he will assist in saving the property, — in no one of these cases is the promise bind- ing, for it is the legal duty of the clerk to be honest, of the seaman to obey reasonable orders, of the watchman to guard buildings, of the fireman to assist in saving property from the flames. This restriction, according to some decisions, does not extend to acts clearly be- yond the scope of duty, though strictly in the line of it. Where a man offered five thousand dollars to any one who would rescue his wife, living or dead, from a building completely enveloped in flames and liable to fall at any moment, it was held that a fireman who saved her lifeless body was entitled to the reward, for, although it was his legal duty to run all ordinary risks incident to his dangerous calling, he was under no legal obligation to expose himself to almost certain death. A mere moral duty is not a consideration sufficient to sustain a promise. Morally it may be a father's duty to assist his son, but a promise to do so is no more binding than if it were made to a stranger. It may be an unnatural and wicked act to disinherit a child, but a note given by a dying parent, with intent to remedy such injustice, is not a legal claim against his estate. A man may leave a great fortune and a sin- gle child, his sole heir ; he may have an aged mother, helpless, poor, wholly dependent on him for support ; it may have been his often expressed and undoubted intention to provide for her handsomely by will ; yet 20 306 TALKS ABOUT LAW. if he dies without doing so, and the son in a fit of mo- mentary generosity gives her his written promise to do for her as he ought in decency to do, the promise is without consideration and cannot be enforced. But if the father has neglected to make his will, relying upon the son's promise to provide for the old lady, then there is the consideration of forbearance, and whether the son afterwards renews the promise or not he is bound by it. A moral duty joined to an obsolete legal duty is a sufficient consideration, if the promise is express and unequivocal. Thus, a promise to pay a debt barred by lapse of time or by a discharge in bankruptcy re- vives it. It is not necessary that the consideration should be of equal value, provided the parties are competent and the agreement is voluntary and free from imposition. Any suspension of a legal right, any forbearance to press a well-founded claim, any honest compromise of a doubtful claim, any real service or benefit accruing to the one party or to a third person, any real incon- venience or trouble to the other, is sufficient. Where a gentleman gave his note for ten thousand dollars, on condition that his friend's child should be named for himself, and his heirs contested the payment of the note on the ground that it was without consideration, it was held to be good. So, where one promises to pay a certain portion of a church debt provided the remain- der shall be raised within a specified time, and the con- dition is complied with, he is bound by his promise ; and an ordinary subscription paper for any charitable purpose is binding if the object of the charity has done some act or incurred some liability upon the faith of the subscription, or even if the signers have signed each CONTRACTS. 307 expressly in consideration of the other signatures. Where one promised that if he might be allowed to weigh certain boilers he would return them in as good condition as when taken, it was held that the privilege of weighing them and the inconvenience of having them weighed were a sufficient consideration ; and where one promised to give another a certain sum of money if he would call at a specified time, it was held that the inconvenience of calling was a sufficient consider- ation for the maintenance of a suit upon the promise. The consideration, however, must be something more than a mere pretence ; for example, it has been held that a promise to pay six hundred dollars in con- sideration of one cent is void. It must also be possi- ble and to some extent reasonable. If the undertak- ing is possible and reasonable at the time of making the contract, its performance is not excused by un- foreseen events which render its execution impossi- ble ; in other words, one cannot make a contract, abso- lute, unqualified, without stipulation for contingencies, and at the same time avoid responsibility for loss which its non-performance may bring upon the other party. To render it invalid it must be impossible at the time, or at least unconscionable or unreasonable. For example : One Morgan bought a horse, agree- ing to pay a barleycorn for the first nail, two for the second, four for the third, and so on, doubling with every nail in the horse's shoes. A suit having been brought upon this contract, the court instructed the jury to give the plaintiff only the fair value of the horse. One Whitacre, in consideration of half a crown, promised to pay two grains of rye on Monday, four grains on the next Monday, and so on, doubling every Monday for a year. All the rye in the world 308 TALKS ABOUT LAW. ■would have been insufficient for the performance of the contract, and the plaintiff was obliged to be content with his half crown and costs. Where A and B were assignees of an insurance policy written in favor of C, and the insurers refused to pay the amount due with- out C's receipt, to obtain which A and B were forced to give a written agreement to pay her nearly five hundred dollars, it was held that the consideration was unconscionable and that C could only recover pay for the trouble and inconvenience of signing her name. Where a dissolute and inexperienced spend- thrift was induced to buy, at more than three times its value, land for which he had no use and which he had never seen, the purchase being the condition upon which he was enabled to borrow a larger sum of money on security, the sale was held to be unconscionable. If the consideration fails, that is, if what was sup- posed to be the consideration did not exist at the time the agreement was made, the contract falls to the ground. If one, as he supposes, buys a horse or a house, and afterwards discovers that the horse had died or that the house had been burned, he can re- cover back his money. Of course there are two considerations to every con- tract, as it is quid pro quo, something for something. If A sells a coat to B, A's consideration is the money and B's is the coat. If either consideration is wholly illegal, the contract is void ; and if it is illegal in part only, the contract is still void unless it is of such a na- ture that the legal and illegal parts may be separated, sustaining the one and rejecting the other. " Every contract to do an act which the law forbids, or to omit an act which the law enjoins, is void." Con- tracts recognized as being contrary to good morals or to soiuid public policy are void at common law. CONTRACTS. 309 An agreement in consideration of illicit cohabita- tion in the future is void because it is immoral ; in the past (if not under seal), because the consideration is not one sanctioned by law. If, however, the father of an illegitimate child promises the mother an annuity if she will properly maintain and educate the child and keep its parentage secret, and she does so, the prom- ise does not come within the rule and is binding, for it is neither immoral nor against public policy to shun unnecessary scandal, to relieve the child from want, and to provide it with a mother's care. There are cases that go much further than this. If one knowingly sells a woman of the town mil- linery or dress goods for the purpose of aiding her to ply her avocation, he cannot recover pay. If he knowingly lets a building to be used as a brothel or house of assignation, the law will not assist him in collecting his rents. It is the same if he lets it for purposes prohibited; not by the common law, but by local statutes, — such as lotteries, gaming, the sale of spirituous liquors, and the like. A contract to pay for printing or publishing or sell- ing a libel, or an obscene or immoral book or picture, is void. A contract made on Sunday, unless it arises out of an act of necessity or of mercy, is void, and the fact that it may bear another date is of no consequence. So a contract made on a week day for services to be rendered on a Sunday is void ; and, if it is entire, it is wholly void, although only part of the services are to be rendered on that day. Where A on Thursday, for a round sum, engaged B to assist him in moving the next Saturday, Sunday, and Monday, it was held that B could recover nothing for the job. As a rule, 310 TALKS ABOUT LAW. one who is injured while unnecessarily travelling on Sunday can maintain no action for damages. No promise to pay for goods sold in violation of law can be enforced. If the sale is illegal where it is made, it is illegal everywhere ; and generally speaking, if it is legal where it is made, it wiU be upheld there and elsewhere, even though the seller at the time knows that the buyer intends to dispose of the goods illegally. Tor example, a licensed liquor dealer in Massachusetts sells goods to a dealer in New Hampshire, knowing that they are to be, there retailed in violation of the prohibitory law ; if the sale is made in New Hamp- shire, it will be declared void by the courts of both states ; if made in Massachusetts it wiU be recognized as valid by the courts of both states. This deference to the law of other states and nations is a matter of comity, and does not extend to transactions which courts regard as immoral per se. Generally speaking, bets are not void at common law ; but in Massachusetts and New Hampshire the contrary has been held, and in most of the states and in England they are now made void by statute. Bets of an indecent or an impertinent nature, referring to another's person, property, or affairs in such a manner as to subject him to annoyance, ridicule, or contempt, are void at common law. A case of this kind, perhaps a fair example of such wagers, arose about the middle of the eighteenth century and " made a great noise all over Europe." The Chevalier d'Eon, a person of rank and position, had served as a military officer, had fought several duels, and in the high circles in which he moved lived the life of a fast man of fashion. He was, however, very effeminate in appearance, and, a heavy wager having been laid upon his sex, a suit was CONTEACTS. 311 brought to recover it. In delivering the opinion of the court, Lord Mansfield said : " Here is a person who represents himself to the world as a man, is stated on the record to be Monsieur le Chevalier d'Eon, has acted in that character in a variety of capacities, and has his reasons and advantages in so appearing. Shall two indifEerent people, by a wager between themselves, try whether he is a cheat and impostor, and be allowed to subpoena all his intimate friends and confidential attendants to give evidence that will expose him aU over Europe ? Such an inquiry is a disgrace to judi- cature. If the chevalier had applied to the court and said. Here is a villainous wager laid to injure me ; I, as a stranger whose interest it affects, pray you to stop it, — we should instantly have done so. We have no authority . to declare all wagers illegal ; a wager whether the next child shall be a boy or a girl hurts no one. But are we to lay down doctrine which would give validity to a wager whether a yoTing woman has a mark upon a particular part of her body and authorize the calling of her chambermaid to prove it? The present wager, being indecent in itself and manifestly a gross injury to a third person, is not to be endured." It may be remarked, that, after this decision, the chevalier assumed female attire and returned to France ; on the breaking out of the Revolution, being, like the most of his class, reduced to poverty and degradation, he again went to England and for a long time lived as female companion to a lady of good repute ; and upon his death, more than fifty years after the laying of the wager, it was discovered that he was what he had first claimed to be. All wagers upon an election, the result of a lawsuit, the passage or repeal of a statute, the official action of 312 TALKS ABOUT LAW. persons in authority, the event of war or peace, the assassination of a foreign sovereign, or the commission of any crime, are for obvious reasons against public policy, purity, honor, and welfare, and are utterly void at common law. " A colorable contract for the purchase and sale of railway shares or of goods, where neither party intends to deliver or accept the shares or the goods, but merely to pay differences according to the rise or fall of the market, is gaming and wagering ; and it is for the jury to determine whether the parties really meant to pur- chase and sell or whether the transaction was a mere bet upon the future price of the commodity." If the law upon this subject were respected, the business of the great stock and grain exchanges of this and the mother country would dwindle amazingly. A bond fide contract, however, to deliver stock or merchandise at a future time, although made by one who does not own it and has no means of getting it except buying it in the open market, is not a bet upon future prices, and is everywhere regarded as a legitimate transaction. Bets void by statute (as all bets now are in most states) and bets void at common law may be recovered from the stakeholder by the loser, provided he demands them before they are paid to the winner, and in one or more states statutes have been enacted making the stakeholder responsible even though he pays bets to the winner without objection. Not only is bribery illegal, but every contract in the nature of a bribe, every agreement to pay money, to supply goods, to furnish employment, or to render any service whatever, directly or indirectly, in consideration of any vote or the exercise of any official influence or favor or neutrality, or in consideration of exerting or CONTRACTS. 313 attempting to exert any corrupt or undue influence upon any voter or any person in authority, is utterly void. What is known at Washington and at our state capitals as the lobby, or third house, has its legitimate uses, for, where private interests are involved, it is just that they should be represented ; but in seeking to influence legislative and executive, as well as judicial acts, the law countenances only open and straightfor- ward means, and a promise to pay an intimate friend and confidential adviser of the chairman of a congres- sional committee, or of the President of the United States, for private and ex parte representations would vT not be binding. Although one may properly circulate a petition for an appointment to office or for the par- don of a convict, and may recover pay therefor, any promise made in consideration of signing such a peti- tion is a nullity, for it professes to express the un- bought wishes and honest convictions of its signers. A promise, whether made to an official or to a private person, in consideration of not prosecuting for a crime, is void ; so also of a promise to a sherifiE or a jaUer in consideration of a release from arrest. No one can put himself or herself under an obliga- tion never to marry, for such obligations would be subversive of pure morals and contrary to public policy ; but a contract in limited restraint of marriage may be valid, such as a promise upon condition that one will or will not marry a particular person, or will not marry during minority without the consent of parents or guardians. While the law greatly favors marriage, it does not favor match-making, and any agreement to pay a third person for such service is absolutely void. Contracts in general restraint of trade are contrary 314 TALKS ABOUT LAW. to public policy. The good-will of a business Is often the most valuable part of it, and one may sell his right to be the rival of another ; but he cannot sell his right to earn an honest living in the occupation to which he is accustomed under penalty of emigrating to a for- eign land. For example, if a country merchant, in selling his business, agrees not to resume trade in the same town or county for a term of years or until the purchaser shall retire, the contract is valid; but if he engages not to establish himself in the same line within a thousand miles, the contract is void, or, at least, it is not binding beyond the limits where com- petition may exist. The law is extremely jealous of this class of contracts ; it construes them as liberally as possible in favor of trade, and it makes them an exception to the general rule that a seal implies a consideration. For similar reasons " monopolies are odious and generally contrary to the common law." Trade secrets are exceptions to this rule ; and inventions and liter- ary and artistic works are also protected by the com- mon law, as well as by statutes authorizing patents and copyrights. A contract to serve another for life, if free from im- position and abuse, may be valid. Contracts for future support, such as old gentlemen frequently make for the maintenance of themselves and wives during life, are valid as between the parties. They are, however, subject to the rights of creditors, and one cannot in this or in any other way legally put his property out of his hands to avoid the payment of his debts. Where contracts are immoral or are contrary to law or to public policy, and both parties are in fault, the CONTRACTS. 315 law generally leaves them where it finds them and will assist neither out of a bad scrape. If one has ren- dered services or has paid money or has delivered up property, if he has performed his part of the agree- ment and the other has whoUy failed to do so, he is without remedy ; the law will not protect him from loss in an unlawful undertaking. One Sunday Thomp- son sold and delivered to Williams two cows. Shortly after, seeing no prospect of payment, he took them from Williams's pasture and drove them home. Williams brought a suit of trespass, and made Thompson pay the value of the cows. Then Thompson, mistaking this decision for a recognition of the contract, brought a suit for the price agreed upon, and found to his cost that whUe he could part with property on Sunday be- yond power of recall he could get no pay for it. So Williams prevailed in both suits, and his title was just as good as if he traded on a week day and honestly paid cash down ; but if Thompson, instead of selling on credit had got his pay in advance, he could have kept the money and the cows too. So far as contracts of sale, legal as well as illegal, are concerned, there is much truth in the popular maxim, " Possession is nine points in law." Posses- sion is prima facie evidence of ownership, and a de- livery of goods, without payment and without a biU of sale, will often sustain a title where payment and a bill of sale, without delivery, would not. For exam- ple : A buys a horse of B, pays for him, takes a bill of sale, and leaves him to be called for at a more con- venient time ; A's title is perfect as against B, but not against B's creditors ; to the public, the evidence of a change of ownership is a change of possession. What is a sufficient delivery of goods is sometimes a nice 316 TALKS ABOUT LAW. question. • A watch can easily be transferred from hand to hand ; not so grain in a warehouse, logs in a boom, or a ship at sea ; and where actual delivery is impracticable a symbolical delivery may be sufficient. Generally speaking, a bill of sale is a less effective instrument than most persons imagine, being of value only as evidence of what has been done ; but in some cases it may operate as a symbolical delivery, and in others as a memorandum taking a transaction out of the statute of frauds. If a man orders a certain kind and quality of goods, pays for them, and takes a bill of sale, without having them selected and put by themselves, he acquires no title to any goods in particular, only a right to a par- ticular kind and quantity of goods in general, and if the whole stock is consumed by fire the customer loses nothing, for the merchant is stUl bound to fill the or- der ; but if the goods are selected and put by them- selves, and the merchant has nothing more to do, then (unless the trade comes within the statute of frauds) the customer is entitled to those identical goods upon paying for them, and, though they are stolen or de- stroyed before he takes them, the loss falls upon him, for, as between the parties, they have become his goods subject to the merchant's right to insist on prepayment. Two farmers go to a store ; one selects a barrel of flour, has it rolled to the door, and says he will call for it on his way home ; the other farmer says he will take a barrel of the same kind, but makes no selection ; while they are gone the store and contents are burned : the first farmer loses a barrel of flour, the second does not, and it makes no difference whether either has paid or has taken a receipt. If one sells goods on credit to a person who, as he CONTRACTS. 317 afterwards learns, is insolvent, he may stop them in transitu, that is, before they reach their destination and come into the purchaser's possession and control, and, haAring stopped them, he may detain them until the price is paid or tendered ; but, if the goods have reached their destination and have passed into the pos- session and control of the purchaser, the vendor can- not retake them for any failure to pay according to agreement, and if he does so he is liable in the same manner and to the same extent as he would be for meddling with the property of a stranger. One can, however, more or less completely guard against loss in dealing with a person of doubtful credit by reserving the title and the right of repossession to himself until a certain sum, agreed upon as a price, shall have been paid. This is usually done by an in- strument which is in effect a lease before, a bill of sale after, payment. These conditional sales, or " sales upon the instalment plan," are very common, and by means of them ubiquitous sewing-machine agents and other enterprising individuals are enabled to dispose of vast quantities of goods with comparative safety. Whether a condition that the title shall not pass until the property is paid for can affect one who at- taches it or who buys it in good faith of the apparent owner, is a question upon which courts do not agree. In many states such conditions — though merely oral and without witnesses — are upheld in all cases where actual fraud cannot be proved. In other states this rule is rejected on the ground that it opens a wide door to coUusion and rascality, and such conditions are not permitted to affect creditors of and purchasers from apparent owners in actual possession. In still other states there are statutory provisions requiring 318 TALKS ABOUT LAW. that sucH conditions, to affect third parties, shall be in writing, witnessed, and duly recorded. It is a general rule (to which there are some very important exceptions) that one can give another no better title than he himself has. A mortgaged or a stolen horse may pass through the hands of fifty men, each one of them acting ia good faith and paying full value, without in the least impairing the right of the mortgagee or the owner to take the animal when- ever and wherever he can find him. The purchaser under such circumstances has no better title than the thief had. If one, acting for himself and not as the agent of another, sells goods which are' in his own possession, he is understood to warrant the title ; but if the goods are not in his possession and he is guilty of no fraud, the buyer must either take an express warranty or run his own risks. In ordinary contracts of sale there is no implied warranty of the quality of the goods sold (except in Louisiana and South Carolina) ; but, on grounds of public health, a dealer in provisions is held bound to disclose the fact that they are unwholesome if he knows it. Where goods are sold by sample there is an implied warranty that they vdll correspond with the sample. If goods are ordered without opportu- nity for inspection they must answer to the order. If a buyer, instead of selecting for himself, says that he wants an article for a special purpose and relies upon the dealer's superior knowledge, it amounts to a war- ranty that it wUl be reasonably adapted to that pur- pose. No set form of words is necessary to constitute a warranty. Anything that the parties understand as CONTBACTS. 319 such, and upon which the purchaser relies and has a right to rely, is sufficient. When goods are not as warranted (as well as when the trade is tainted with fraud) the buyer may return them, or keep them and bring a suit for damages ; but, if he prefers the for- mer course, he must act promptly. As a rule, contracts wiU be everywhere sustained, modified, or repudiated, according to the law of the states or countries where they are made. Generally speaking, a contract valid by the law of the place where it is made is valid everywhere ; thus, as has al- ready been remarked, an agreement to pay for spir- ituous liquor, sold where such sales are legal, may be enforced where such sales are illegal ; and an agree- ment to pay ten per cent, interest, made in California, may be enforced in New Hampshire, although if made in the latter state it would be in violation of usury laws. So, on the other hand, contracts void by the law of the place where they are made are ordinarily void everywhere, unless it plainly appears that they are to be performed in another state or country and have been made in accordance with its laws. While contracts are valid or invalid according to the law where they are made, " the comity of nations is sufficiently satisfied in allowing to foreigners the use of the same remedies and to the same extent that are afforded to the citizens of the state ; " in other words, the validity of the contract usually depends upon the law of the state where it was made, the means of enforcing it upon the law of the state where suit is brought. For example, a ten per cent, note is given and made payable in California, and a suit upon it is brought in New Hampshire ; its validity depending upon the law of California, it may be collected in full 320 TALKS ABOUT LAW. in New Hampshire, in spite of local usury laws ; the means of collecting it depending upon the law of New Hampshire, it may be sued there at any time within six years, although in California it would be outlawed in four. So, whether one is liable to or is exempt from arrest on a civil suit depends upon the law of the state where the suit is brought, not upon the law of the state where the cause of action accrues. The rules for the construction or interpretation of contracts are founded upon reason and common sense. If the intention of the parties is clear and is noi inconsistent with law, it is always to be carried into effect. If the intention is not clear, it is the duty of the court to find it if it can. Words are given their ordinary and popular rather than their strict gram- matical or etymological meaning. Technical words are supposed to be used in a technical sense. If a word has a peculiar meaning in a certain locality or in a certain line of business, and a contract is made in such locality or in the usual course of such business, it wiU be presumed that the parties used the word in the local or peculiar rather than in the ordinary and popular sense. Thus, a promise in New England to pay six shillings would be the same as a promise in New York to pay eight ; for, while we no longer have shillings, the word is understood in the former section to mean sixteen and two third cents, in the latter section, twelve and a half cents. So, generally speak- ing, a contract for one hundred pigs would refer to young swine ; but, if it were made in the ordinary course of business between dealers in metal, it would be understood as a contract for twenty-five thousand pounds of lead. Even when they act upon grave deliberation, when CONTRACTS. 321 they sit down to make their wills or to frame statutes, comparatively few people are able to say just what they mean in words that cannot be misunderstood ; and it is a thing of every day occurrence for expe- rienced men, the legal profession included, to draw contracts so loosely that they are capable of two or more interpretations. In such cases, the first ques- tion is, How did the parties understand the contract ? what did they mean ? To answer this question the contract must often be studied in the light of all surrounding circumstances. It will be construed, if possible, so as to have an actual and legal operation ; rather than declare it an idle and frivolous thing, its grammatical sense and arrangement may be violated and its more remote and less obvious meaning adopted as the true one. So far as may be, the whole will be given effect ; each part wiU. be interpreted in connec- tion with all the others, and that construction will be followed which appears to be most reasonable and consistent. Where the actual meaning of the parties can be ascertained with a reasonable degree of cer- tainty, according to the established rules of evidence, it cannot be departed from; but where the words used and all the circumstances are as consistent with one construction as with another, the party who did not draw the contract, or had not been in possession of the property, or had not had equal means of in- formation, or for any other reason may be supposed to have been at some disadvantage, will be the more favored. As a rule, contracts and bonds of indem- nity, penal obligations, and all undertakings for the benefit of other people, will be construed strictly in favor of those who sign them. In many doubtful cases, also, the construction may depend upon considerations 21 322 TALKS ABOUT LAW. of pubKc policy, and the same language may be given one meaning in a class of contracts especially favored by law, and quite a different meaning in a class of contracts regarded with some disfavor. Oral evidence cannot be received to supply, contra- dict, enlarge, or vary the terms of a written contract ; for, whatever the parties may say in negotiating the trade, it is presumed that their final understanding is what they put in black and white. This rule does not exclude evidence tending to defeat the contract on grounds of duress, fraud, failure of consideration, mistake, and the like ; neither does it apply to the explanation of language where the person or thing referred to is uncertain, as where it refers to John Smith of Boston, and there are many men answering that description. While evidence cannot be received to vary the terms of a written contract, the contract itself (unless it is one that the statute of frauds requires to be in writing) may be changed by a subsequent oral agreement, making it in effect a new contract, and such new contract may be proved in part by the writing and ia part by oral testimony. Reference has several times been made to " the statute of frauds and perjuries," so called from its having been passed to prevent fraud and perjury. Almost every word of this famous statute has been the subject of fierce litigation, of ingenious arguments, of numerous and elaborate decisions. Its effect has been on the whole so beneficial that a great judge once declared that its every line was worth a subsidy. It was enacted by the English Parliament in the reign of Charles II., has been substantially reenacted in about three fourths of the United States, and in all or nearly all of the remaining states a portion of its pro- CONTEACTS. 323 visions have been adopted. It has been more or less amended, in a number of states its operation has been greatly enlarged, the phraseology used is not everywhere the same, and it is therefore impossible to make a brief and comprehensive statement of its provisions which will be of universal application ; but, generally speaking and subject to local modifications and exceptions, it declares in substance that no action shall be maintained upon a contract for the sale of land, unless the agreement upon which it is brought or some memorandum thereof is in writing and signed by the party to be charged, or by some person thereto authorized in writing ; that no action shall be brought to charge an executor or administrator upon a special promise to answer damages out of his own estate, nor to charge any person upon a special promise to answer for the debt, default, or miscarriage of another, or upon any agreement made in consideration of mar- riage, or that is not to be performed within one year from the time of making it, unless such promise or agreement, or some note or memorandum thereof, is in writing and signed by the party to be charged, or by some person by him thereto authorized ; that no contract for the sale of goods, wares, or merchandise beyond a certain specified price or value,^ is valid un- less the buyer accepts and actually receives part of the property sold, or gives something in part payment or in earnest to bind the bargain, or unless some note or memorandum thereof is in writing and signed by the party to be charged, or by some person by him thereto authorized. Space cannot be taken to discuss this statute fully ; ^ Ten ponnds in the Eng^lish statute ; in the several states of this country a sum varying from thirty to two hundred dollars. 324 TALKS ABOUT LAW, but, as it applies to transactions of every day occur- rence in the lives of most people, a brief consideration of its principles can hardly be omitted. It is not intended to change the nature or effect of contracts in any respect ; but merely to insure more satisfactory evidence in cases which, as experience has shown, would otherwise invite the perpetration of fraud and perjury, or would be peculiarly liable to misunder- standing. It does not under any circumstances require that a contract should be drawn with legal formality; any memorandum that contains or that refers to any paper containing its substance, even though the latter is not signed, is sufficient. The statute requires that the memorandum should be signed only by the party to be charged or by his agent, and, unless the contract is for the sale of land or of some interest therein, the agent's authority need not be in writing. It is not ab- solutely necessary that the signature should be at the foot ; if a man writes upon a slip of paper, " I, John Smith, have agreed," etc., and does not sign it at the bottom, it will answer the law if it is intended as a memorandum. It may be jotted down with a pencil, and, in most states, instruments in general are held to be as valid when written with a pencil as when written with pen and ink, although, from the facility of era- sure and the ease with which forgeries may be com- mitted, they are peculiarily open to suspicion. It has even been held that a merchant's name printed at the beginning of a biU-head, upon which he had enumer- ated the articles sold and their prices, is a signature within the meaning of the statute. In regard to part payment and part delivery, if any portion of the price, however small, is paid, if any CONTRACTS. 325 portion of the goods is delivered JEor the purpose of binding the bargain, it will take the place of a mem- orandum. An agreement which may be performed within a year does not come within the statute, although per- formance within that time is improbable ; such, for ex- ample, as an oral contract to support another for life, or to pay a sum of money on the day of one's mar- riage, or on the arrival of a ship, or to leave property by wUl. So of a general hiring of a clerk or a ser-" vant in which no time is specified, and which may be from year to year as long as the parties please. So where it is optional to perform a contract within a year or to take a longer time, the contract is valid though not in writing ; but where it is one that can- not, in any event, be performed within a year, or where the parties understand that it is not to be per- formed within a year, — where, for instance, it is an agreement to work for another two years, or to take a book to be published in twenty-four monthly parts, — there must be at least some written note or memorandum, otherwise it is not binding. According to the English and some of the American decisions, the provision applies only to agreements not to be performed on either side within a year ; and an oral contract to deliver goods or to render services may be valid, although it is understood at the time that a long credit is to be given. By an agreement in consideration of marriage, which the statute requires to be in writing, is in- tended a promise to pay money or to render some service on condition of a marriage taking place, not an ordinary engagement to marry, for an engage- ment made by word of mouth only is binding, unless 326 TALKS ABOUT LAW. it is understood that the ceremony is not to be per- formed within a year. A clear understanding of the provision that no action shall be brought to charge any person upon a special promise to answer for the debt, default, or miscarriage of another, unless such promise or some note or memorandum thereof is in writing and signed by the party to be charged, or by his agent, is very important, especially to merchants and business men, and a few illustrations of what it does and what it does not mean may be in place. It does not apply to debts created only by implication of law, such as debts for necessaries furnished to a wife ; or to bail in civil or in criminal cases ; or to a promise to pay the debt of another in consideration of the discharge of the original debtor ; or to a promise to pay for goods furnished to a third person on the credit of the promisor ; or to an ordinary assignment of a debt or of wages. If A becomes bail for a friend, he makes a direct contract with the plaintiff or with the state, the condition of which is that he will produce his principal at a certain time or forfeit a certain sum of money ; if he goes to B's store and says, " If you will cross out C's account I wiU pay it," and B does so, the promise is binding, for, instead of being a collat- eral undertaking to pay C's debt, C's debt is cancelled and a new debt is created ; if he says, " Let C have what goods he wants and charge them to me," he will be bound, for the debt will be his, not C's; if he owes B and B owes C and it is orally agreed all round that A shall pay C instead of B, it is not a promise to pay B's debt within the meaning of the statute, but merely a change of debtors. On the other hand, if A says to B, " If you will CONTRACTS. 327 give C a little more time I will pay his debt if he does not pay it himself ; " or, " If you will sell C goods I will pay for them if he does not ; " or, " I owe C more than he owes you ; don't trouble him at present ; I have his permission to do so, and, if he does not pay you, I will " — under these and sim- ilar circumstances, to be binding, the promise or some note or memorandum thereof must be in writing. In a word, an oral promise, however valuable the consideration, is not binding if it is intended and understood merely as collateral security for the debt, default, or miscarriage of another, instead of a direct and original liability. Conversation in regard to other persons' affairs and circumstances is so common, inter- ested parties may so easily persuade themselves that loose talk amounts to a guaranty, that were an oral guaranty sufficient, the temptation to falsely allege such a guaranty would be so strong, and the means of refuting it so inadequate in most cases, that no one would be safe. Of course one may waive the protec- tion of the statute where only his own rights are concerned ; and, in many states, it is held that he may waive it even after the claims of strangers have inter- vened, as by trustee suits. Where the latter doctrine prevails, A may safely say to any one, " It was orally agreed that I should be responsible to B for C's debt, and although you have attached C's money in my hands, I have the right to pay it to B and shall do so." The words by which a clergyman pronounces two persons "one flesh" are few and quickly said; but they effect a radical and lasting change in the personal and property rights of the parties, in their relations to each other and to society. So, affixing a seal to a written contract is a simple thing; but in centuries 328 TALKS ABOUT LAW. past it changed, to a great extent it still changes, the legal effect of the writing scarcely less than marriage changes the relations of the parties to the ceremony. Written contracts are more reliable than oral, are not as subject to mistake, imposition, and falsehood, and for this reason the statute of frauds requires written evidence in certain cases ; but, aside from this statute, the rules that apply to written and to oral contracts are the same, they are both subdivisions of the same class, they are both known as simple contracts. Be- tween simple contracts, whether oral or written, and contracts under seal is a wide gulf. The former are regarded as ordinary, every-day affairs ; the latter, as solemn acts, done upon grave deliberation, even as was the sealing of the stone which Darius, the Mede, " sealed with his own signet." One may deny what he has admitted under his own signature; but what he has affixed his seal to, as a rule, he can never deny. He may sign a receipt, a note, an agreement, and may afterwards say, and prove if he can, that the money was not paid, that the note is not for value received, that the agreement is without consideration ; but if the contract is one sanctioned by law, and he has set his seal to the paper without duress, fraud, or mistake, although he has not received the value of one cent, his lips are forever closed, he cannot impeach what he has declared by an act which the law regards as more solemn than a death-bed con- fession. As a rule, ordinary debts and demands become out- lawed in six years ; while debts under seal, unless the time is varied by local statute, are good for twenty years. An agent may be authorized by word of mouth to CONTRACTS. 329 make any written contract that does not pertain to the sale of land or of some interest therein ; but no authority can be given to execute a sealed instrument except by an instrument of equal solemnity. The distinction between sealed and unsealed con- tracts extends even to the forms of action upon them, and what is appropriate to the one class is not appro- priate to the other. Such are some of the stiU existing qualities peculiar to sealed instruments; others will be referred to in considering land and wills. In olden times the potency of a seal was far greater, for if a man died or became insolvent his creditors under seal were entitled to payment in full before other creditors could receive anything. Unless a formal seal — such as the seal of a state, a court, a corporation or a notary public — is adopted, a little wax, a wafer, a bit of a postage stamp, or anything else affixed to the instrument opposite the signature, is sufficient ; and in a few states, a scroll made with a pen with "Seal" or "L. S." written in- side will answer the requirements of the law. Ordinarily all writs and criminal warrants are void if not under seal ; but in Vermont, and perhaps in some other states, the rule is otherwise. CHAPTEE XXIX. NEGOTIABLE PAPER. EvEKT boy and every girl who has a common school education is expected to be familiar with inter-* est, discount, partial payments, and the like, while few teachers (unless they are studying for admission to the bar) can explain to their classes the elementary rules and principles that apply to business paper. If they could, if pupils in interest and discount were told some things not found in arithmetics, if they were encour- aged to write out various forms, and to inquire into the rights and liabilities pertaining to them, their inter- est in their work would be greatly increased, and in a generation or two it could not be said that a majority of intelligent people, including merchants and bank- ers, know little beyond form and routine concerning the notes, bills, drafts, and checks which they handle daily. By negotiable paper is commonly understood nego- tiable notes, biUs, drafts, and checks; but, strictly speaking, bonds and other securities that pass by de- livery alone, or by indorsement and delivery, are also negotiable paper. A promissory note is an unconditional promise in writing to pay a definite sum of money at a specified time. A bill of exchange is a written order or request for such payment. Drafts and checks are essentially bills of exchange. NEGOTIABLE PAPER. 331 To be a note or bill, the promise or order must be for the payment of money and nothing else. A writ- ten promise to pay a thousand bushels of wheat is a mere contract for the delivery of merchandise, and, however worded, is not negotiable unless made so by local statute, or (according to recent decisions in a few states) by local mercantile custom. So a promise to pay money, and to do some other thing, no matter how trifling, is not a note. The mere fact that a promise is for payment in the money of a foreign country does not affect its validity or its negotiability as a note, and, if a suit is brought where such money does not pass as legal tender, judgment will be given according to current rates of exchange. The promise or order must be for a definite sum, so that, interest or discount being cast, one can tell to a cent the amount due at any given date. A promise to pay whatever may be found due on settlement of accounts, or a sum named in a separate paper, or a given sum with cost of exchange or expense of collec- tion, is not a note. The promise or order must be for payment at a specified time, either on demand, at a fixed date, or on the happening of a certain event, so that all parties interested may know when it is due and payable. The promise or order must be absolutely unqualified and unconditional. A promise to pay a thousand dollars out of a particular fund is not a note, even though the fund be millions, guarded as securely as anything human can be guarded. So, a promise to pay when a certain ship arrives in port, or when a certain person comes of age, is not a note, for the ship may founder at sea and the person named may die before attaining his majority. On the other hand, a promise 332 TALKS ABOUT LAW. to pay on the decease of a designated person may be a note, and a negotiable one, for, though the time of death cannot be foretold, the event is sure. It must clearly appear to whom the promise or order runs. A promise to pay A or B is too indefinite to be a note ; but it is not necessary that the payee should be designated by name ; for, if business paper is pay- able to order, the payee may be identified by indorse- ment and possession ; if payable to bearer, by posses- sion alone. Many notes, bills, drafts, and checks are not negoti- able. For example : — 1100.00. Keene, N. H., January 1, 1887. On demand I promise to pay John Smith one hun- dred dollars. Value received. Thomas Jones. This is an unconditional promise to pay a definite sum at a specified time. It is a perfect promissory note ; but it is not negotiable paper. It may change owners by sale, by gift, by inheritance, by judicial decree ; but the same may be said of a like promise to deliver corn, or a conditional promise to pay money. Whoever becomes the owner acquires only Smith's rights ; if he brings a suit he must do so in Smith's name; and if Smith obtained the note by misrepresen- tation or fraud, if Jones gave it by mistake, if it was without consideration, if the consideration has failed, or if the note was paid before changing owners, Jones may set up such defence against a purchaser in good faith as readily as he could against Smith himself. The note has none of those attributes, established by mercantile usage and ripened into law, which, under certain circumstances and to a certain extent, make NEGOTIABLE PAPER. 333 negotiable paper a substitute for money, passing from hand to hand like United States treasury notes and gold and silver coin. To have these attributes the note, bill, draft, or check must be payable to order or to bearer. 1100.00. Keene, N. H., January 1, 1887. Three months from date, for value received, I prom- ise to pay to John Smith or bearer one hundred dollars. Thomas Jones. Subject to qualifications to be spoken of hereafter, such a note as this is payable to any one into whose hands it may lawfully come and no indorsement is necessary. If it is lost or stolen and the finder or thief sells it, the honest purchaser can maintain a suit upon it in his own name, and Jones will not be permitted to say, as he might while it remained in Smith's pos- session, that it was obtained by misrepresentation or fraud, that it was given by mistake, that it was with- out consideration, that the consideration has failed, or even th9,t it has been paid to some one else. Like a . bank bill, it passes from hand to hand by delivery alone, and when one of two innocent persons must suffer, it is just that the loss should fall upon him who has put such an instrument upon the market and has given it the credit of his name. $100.00. Keenb, N. H., January 1, 1887. Three months from date, for value received, I prom- ise to pay John Smith or order (or, to the order of John Smith) one hundred doUars. Thomas Jones. Until he indorses it, that is, writes his name upon 834 TALKS ABOUT LAW. the back, such a note as this is payable only to Smith. If he writes his name and nothing more, it becomes a note payable to bearer. This is termed a blank indorsement or an indorsement in blank. Instead of such an indorsement, Smith may limit its circulation by writing above his name, " Pay to William White," or, "Pay to the order of William White." In the former case the note is payable to White only (that is, only to him, or to those who stand in his shoes and succeed to his rights) ; it has ceased to be nego- tiable. In the latter case White may indorse it, his indorsee may indorse it in turn, and in this way it may pass from owner to owner indefinitely. There is one peculiarity of such paper worth remembering : after it leaves the hands of the original payee, that is, Smith, it cannot be so indorsed as to render it non- negotiable. To have these negotiable qualities, irrespective of defences that might be made against the original holder or payee, the note or bill must not only contain the words, " to order," " to bearer;^ or their equiva- lent ; but it must also be taken before it is overdue, in good faith, and under circumstances not calculated to excite suspicion. A negotiable note is an uncondi- tional promise to pay whoever happens to be the lawful owner when it falls due, and, generally speaking, until that time the purchaser has only to inquire whether the signature is genuine and the maker responsible ; but whoever buys a note after it falls due, buys it as dishonored paper, and is bound at his peril to inquire why it has not been paid. If one takes a note or bill out of the regular course of business and under circumstances that would natu- rally arouse suspicion, he must run his own risks even NEGOTIABLE PAPER. 335 though he pays value and it is not overdue. If he has reason to think the paper may be tainted with fraud his only safe way is to let it alone. He cannot shut his eyes and claim to be an innocent holder, for the law is designed to facilitate only such mercantile trans- actions as are honest and open. Thus, if a stranger, giving no satisfactory account of himself and apggar- ing to be in great haste to raise money and leave town, should offer paper of a man of known wealth at half its face value, there woidd be reason to suppose some- thing was crooked ; and, if the paper were bought un- der such circumstances, until it again changed own- ers, it would be open to the same defences as if it were overdue or non-negotiable. It is needless to say that one is not bound by the forgery of his name, although the paper may be trans- ferred to an innocent purchaser at its face value and before its maturity ; but, if one knows that his name has been forged and acknowledges the false signature as true, intending to be bound by it, he will be bound so far as innocent parties are concerned. If A finds B's name upon a blank piece of paper and fraudulently writes a negotiable note above it, it is a forgery for which B cannot be held responsible to any one ; but if B signs his name and directs his clerk to write above the signature a note for one thou- sand dollars, and the clerk fraudulently writes one for two thousand dollars, any one who buys the note in good faith, in the regular course of business and be- fore its maturity, will be entitled to collect it in full. The rule is the same if B writes the body of the note himself, leaving the amount for which it is to be given blank to be filled up by another. What is such a forgery as will affect one who buys 336 TALKS ABOUT LAW. negotiable paper in good faith, in the regular course of business, and before its maturity, is sometimes a nice question, and upon such questions there is great conflict of authority. In some states it is held that a fraudulent raising of the amount, or other material alteration, when the maker negligently leaves suffi- cient space, win not avail as a defence, although such alteration is clearly forgery ; in other states a contrary doctrine is adhered to. A great many people have been victimized in ways substantially as follows: A plausible stranger calls upon some honest, responsible farmer, and, with many fair words, persuades him to take a local agency for the Modern Miracle Potato Digger ; and so, " as a mere matter of form, and to prevent any possible mis- understanding," the farmer signs an agreement which looks harmless enough, but which in fact is so worded that when it is cut in two one half is a perfect negotia- ble note payable three months from date. As such, it is easily sold at the nearest village, and it passes from hand to hand like bank bills, as negotiable paper is expressly intended to do. When it matures, the then owner presents it for payment. The farmer says that he signed an agreement to sell potato diggers, and has wondered ever since why they did not come ; that he did not sign a note, and that he will not pay what he did not sign. The holder says that he took the note in the ordinary course of his business, as so much cash, on the strength of the signature, which he knew to be genuine, and that he cannot afford to lose it. The swindler is in parts unknown ; one of two inno- cent persons must suffer ; which shall it be ? In such a case, some courts would answer the question one way, some the other. In a majority of states, per- NEGOTIABLE PAPER. 337 haps, they would sustain the note on general prin- ciples, taking into account the important and delicate functions of business paper ; while jurymen, if they were permitted to do so, would be almost sure to stand by the farmer. A negotiable note or bill, bearing another date but actually given on Sunday, is valid in the hands of a bond fide purchaser before maturity ; and (unless it is declared void by statute) the same is true of one given for an illegal consideration. A note or bill, whether negotiable or not, is only evidence of indebtedness. If it is accidentally de- stroyed, the fact may be proved and the debt may be collected. If a private note or bill, instead of being destroyed, is lost or stolen, the rightful owner may stni collect the debt ; but, as the debtor, from the peculiar nature of negotiable paper, may be com- pelled to pay it a second time, the creditor wiU not be permitted to collect without furnishing a satis- factory bond of indemnity, or such other security as the court may require. This doctrine does not gen- erally prevail abroad, and it has not become estab- lished in all of the United States. In some states it is held that one is not bound to pay a note or biU without receiving it as a voucher of payment, and in other states that he can be compelled to do so only by a bill in equity. The principle is similar where a note or bill has been cut in halves and one half lost, and the decisions un- der such circumstances are not uniform. A note secured by mortgage does not outlaw until the mortgage does, a period (unless changed by local statute) of twenty years. A note, biU, draft, or check, like most legal instru- 338 TALKS ABOUT LAW. ments, may be very informal and yet answer the re- quirements of law. It must be an unconditional promise or order for the payment of a definite sum of money at a specified time, and, to be negotiable, must contain negotiable words, but no set form of words is necessary. " Good to John Smith or order for $100. T. Jones," is a sufficient note so far as Smith is con- cerned, and, under the most favorable circumstances, it might even pass muster as a negotiable note, al- though it could not be recommended as a model. No place being mentioned, it will be payable where Jones lives; the date, being omitted, may be proved by oral testimony ; payment depending upon no contingency, and no other time being fixed, it is payable on de- mand ; and the words, " for value received," or their equivalent, although customary, are not indispensable. But a note so very crude and informal would naturally excite suspicion, and, unless other circumstances were of a peculiar nature, there would be ground for holding that the purchaser should have inquired into it, and could take only the rights of Smith. So a receipt for money " to be returned when called for," or an ac- knowledgment of a certain sum due "payable on demand," is a good promissory note ; but the mere words " I O U eight guineas," although signed, are a due bill, not a note, for they contain no promise. Where A signed the following, " Borrowed of I. S. £50, which I promise not to pay," it was held that the word " not " should be rejected, as it could have been inserted only by mistake or by fraud. Although im- portant words are omitted, a writing may be a good bill or note if its meaning is plain. Thus : " |300. For value received, I promise to pay F. &. Co. three hundred," and, " For value received of C. &. M. or or- NEGOTIABLE PAPER. 339 der, thirty dollars and tbirty-tliree cents on demand, with interest annually," were held to be good notes, the word " dollars " being implied in the one, the words " I promise to pay to them " being implied in the other. So the following was held to be a sufficient note, and, the blank spaces having been filled up by the person to whom it was delivered, it was also held to be negotiable : — $1,585.90. Bkooklyk, September 20, 1858. after date promise to pay to the order of Dec. 28, dollars at value received. J. S. It is not even necessary that the signature to a note or bUl should appear in the usual place. It is suffi- cient if the maker writes his name in any part of the instrument with the intention of charging himself, as, " I, T. Jones, promise to pay," etc. Such a note, however, could hardly have the peculiar qualities of negotiable paper, as it would cause any prudent man to suspect that it had been left unfinished, and had been put into circulation by theft, fraud, or mistake. If one signs his initials, it is the same as signing his name in full ; and if he forges a name or assumes a fictitious one, he is bound by it as if it were his own. Signatures in pencU. are valid ; but they may be so easily forged, altered, or erased that no careful man will make a practice of signing paper in that way or of taking such paper signed by others. A note or bill may be signed by a duly authorized agent as well as by the principal himself. The signature should not be, "T. Jones, agent," for that makes Jones liable and gives no information as to whose agent he is ; the best form is, " John Smith, by his agent T. Jones." 340 TALKS ABOUT LAW. Whenever the protection of bond fide holders re- quires it, notes and bills made payable to fictitious persons are regarded in law as payable to bearer. At common law no witness is essential to the valid- ity of any note or bill. In England and in a few of the United States, under certain circumstances and for certain purposes, witnesses are required by statute. A note or biU, if signed by two or more persons, may be joint or it may be joint and several. A joint note is a collective promise. While each signer is lia- ble for the full amount, aU are regarded in law as a single person ; if a suit is brought, aU must be made defendants, and if one is voluntarily discharged all are discharged. A joint and several note is one by which the signers are bound both collectively and in- dividually, and upon which the holder may sue all or either as he pleases. Where the words " jointly " or " jointly and severally " are not used, the most natu- ral meaning of such w^ords as are used will determine the character of the note in this respect. We prom- ise," etc., is a joint note only. " I promise," etc., is a joint and several note if signed by two or more per- sons. "We jointly or severally promise," etc., is a joint and several note, the law, in such a case, con- struing " or " to mean " and." The general rule seems to be that where one of two signers makes a payment on account it does not delay its being outlawed as to the other, unless they are partners. One who signs a note with another merely to give him the benefit of his credit, is termed an accommo- dation signer. The liability of each is the same, so far as the holder of the note is concerned. This is true even though the accommodation signer writes " surety " NEGOTIABLE PAPKR. 341 after his name. In either case both are- liable as co- promisors; for it is the note, the absolute uncondi- tional promise, of both. This rule, established in the interest of trade, is intended as a shield, not as a sword ; and if the holder of the paper, when he took it, knew the relation of the signers to each other, es- pecially if that relation appeared upon its face, he cannot claim payment of the accommodation signer or surety after doing an act calculated to prevent his re- imbursement by his co-promisor, the real debtor. Although language may be used so loosely as to m.ake it difficult to distinguish the one from the other, there is, in the law of negotiable paper, a wide differ- ence between a surety and a guarantor. A surety is one who makes a joint or joint and several promise with another for his benefit, which promise is ab- solute and unconditional. A guarantor is one who makes a separate and distinct promise for another, which promise is collateral and contingent. The surety is bound as one of the makers of the note ; the guarantor is bound only when the makers fail to pay. The rights and liabilities of the surety are gov- erned by the law of negotiable paper; those of the guarantor, by the general law of contracts, to which the law of negotiable paper is a marked exception. The name of the surety must appear upon the paper itself ; but the contract of guaranty may be a separate instrument. The contract of guaranty may be implied by law from the mere fact of signing one's name ; as where a stranger to a negotiable note, that is, one having no interest in it, or the payee of a non-negotiable note writes his name in blank upon the back. In some states this is held to be a guaranty, in others an in- 342 TALKS ABOUT LAW. dorsement, in still others a signing as surety or maker ; but in a majority it may be either, according to the circumstances of the case and the intention of the parties. If one is compelled to pay a note or bill, either as accommodation signer, surety, or guarantor, he suc- ceeds to the rights of the holder and is entitled to re- imbursement — principal, interest, and costs — from the person for whose benefit he signed. If that per- son is insolvent and there are other accommodation signers, sureties, or guarantors, the loss must be di- vided between them equally, unless it is otherwise agreed. The rights of holders of negotiable paper have been spoken of as fully as space permits ; it is now in or- der to speak briefly of their duties and liabilities, and those of indorsers of notes and bUls, and of drawers of bills of exchange. A note or biU payable to bearer requires no indorse- ment, for the title passes by delivery and the holder is presumed to be the lawful owner until the contrary appears. The delivery of such note or biU does not render one responsible for its payment, for such re- sponsibility is limited to those whose names are on the paper (unless they are guarantors) : but it does amount to a warranty that the paper is genuine, that the holder is in lawful possession, and that he has a right to transfer it. The indorsement and delivery of a note or bill pay- able to order not only amounts to a warranty that it is genuine, that the holder is in lawful possession, and has a right to transfer it, but also that he will pay it himself upon due and seasonable notice of its dishonor. An indorser may avoid liability as such by writing NEGOTIABLE PAPER. 343 " without recourse," or other equivalent words, before his signaturei Under ordinary circumstances the lia- bility of the drawer of a bill of exchange is the same as that of an indorser. To every note there must be at least two parties, the maker and the payee. To every accepted bill of exchange there must be at least three parties, the drawer, the acceptor or payor, and the payee. The maker of the note and the acceptor of the biU are lia- ble absolutely and unconditionally. So far as they are concerned, no demand, protest, or notice is ever neces- sary, and no delay short of the statute of limitations, six years (in most states) will discharge them. The object, therefore, of prompt demand, protest, and no- tice is solely to make absolute the conditional liability of indorsers of negotiable notes and of indorsers and drawers of bUls of exchange. When a note matures, is not paid, and there are indorsers to be charged, or when a bill matures, is not paid, and the drawer alone or the drawer and indor- sers are to be charged, then come demand, protest, and notice. A few words may be in place here in regard to the time when paper matures. A note or bill payable on demand is payable at once. It is not entitled to days of grace, and the holder may bring suit upon it the minute after it is given, that being a demand in itself. He is not, however, bound at his peril to make an immediate demand. He has a reasonable time in which to do so. What is a reasonable time (unless it is fixed by statute, as it is in some states) is a question that cannot be definitely answered, for it depends somewhat upon the circum- stances of each case. The presumption is that the 344 TALKS ABOUT LAW. existence of demand paper will be brief, especially if it does not bear interest. An unexplained delay of four or five weeks in presenting such paper for pay- ment has been held to be unreasonable ; whUe, on the other hand, if it bears interest, or if for any other reason a prompt demand is not to be expected, it may be postponed considerably longer without prejudice. Whenever a reasonable time, whatever that may be, has been exceeded, the paper is regarded as overdue, the indorsers and drawers are discharged from all liability, and a purchaser must take it as dishonored and subject to all defences. It is said a note or bill payable at sight, unlike one payable on demand, is entitled to its days of grace ; but a different rule prevails on the Continent of Europe, has been approved in some of our states, and in others has been established by statute. In determining when time paper matures, the day of its date is not included ; and, by mercantile usage throughout the civilized world, the word " month " is understood to mean a calendar, not a lunar month. A note or biU, on its face due at the expiration of a definite time, is in fact due three days later ; unless the third day is Sunday, a day of public rest, or a day that the particular bank at which the paper is payable by known usage treats as a holiday, in which case it is due on the second day. These three days of grace, originally a mere indulgence as the name implies, have become a legal right, and, unless the words " without grace,", or other words of like import, are used, pay- ment cannot be demanded until the last day. That a promise to pay in three months is held to be a promise to pay in three months and three days, no more and no less, is one of the most striking examples of the way in which custom ripens into law. \ NEGOTIABLE PAPER. 345 I Days of grace are recognized by the law of most slates and nations of European origin, except those tllp,t have adopted the Code Napoleon. They vary in nijinber from three days in English speaking countries, to fourteen in Spain, and, on local paper, fifteen in the chSpf cities of Portugal. ^ oral understanding or promise that payment maV be made at a time different from that stated in thetnote or biU is of no legal validity. Generally speaking, indorsers and drawers of time paptr will be discharged from liability unless payment is dttnanded of the maker of the note or the acceptor of t^ bill on the very day that it matures. The de- manc must be made in person or by an agent, not by lettei*. If a place for payment is fixed, the holder of the ptoer is under no obligation to seek the debtor elsewire ; it is a sufficient demand if he or some one repres^ting him is there during aU reasonable hours of the lay. Where payment is to be made at a bank or coimiiig-house, reasonable hours are business hours, or, at le^st, so much of them as ^oll only leave time for prote^; where it is to be made at a private resi- dence, th^ extend until bedtime, according to some authorities.until midnight. The limit of time is es- tablished b^jcustom, which varies somewhat according to locality. If the place for payment is left wholly indefinite, if,W example, a note is made payable at Boston, withot intimation as to what part of Boston is intended, th holder must make his demand at the debtor's place f business or residence, if any such is to be found in tat city ; but the holder is not bound to spend his daj and nights in a vain search, and if he is not in fa\t himself and uses reasonable dili- gence to make a dt^and, the law considers that it has 346 TALKS ABOUT LAW. been made. If the maker of the note or the acceptor of the bill is not at home, a demand must be made upon his agent if he has one. If he, or any one repre- senting him, is where the paper is made payable, either expressly or by implication, a demand must be made, unless circumstances of an extraordinary nature, such as the immediate presence of death, dangerous ilkess, the stoppage of business by war or pestilence, and the like, render it either impracticable or inconsistent with the decencies and the humanities of life. The hdder, where a demand can reasonably be made, cannot take it upon himself to say that it will do no good ; he can^ not waive the legal rights of those to whom he looss for the payment of another's debt. Although hopelessly insolvent, the debtor may be able to pay somethng on a single claim. Although dead, he is represerted by his administrators or his executors ; and, eventhough none have been appointed, his last act may hjve been a provision for the honor of his paper. lowever small the chances of payment, if demand ^as neg- lected indorsers and drawers are entitled t' say, " It might have been," and be discharged. If the amount due is not forthcoming e amount at stake is trifling, it is generally advisabJ to do so. Protest NEGOTIABLE PAPER. 347 is th^ regular and formal evidence, an official certifi- cate, \hat a demand was duly made, and that tlie paper vas dishonored; as such it is received by the courts c£ all civilized nations. It is given under the hand aijd seal of a notary public. Whei^ paper is dishonored, whether it is protested or not, th^ holder must notify all indorsers and drawers to whom Ijie proposes to look. If there is a daily mail or other ileans of communication, he must do this on the foUowWg day at latest, unless the dishonor occurs on Saturdiy, in which case he has until Monday. Upon receiring such notice, an indorser, in like man- ner and wth like promptness, must notify all prior indorsers to whom he proposes to look, and, if the paper is a bil, draft, or check, the drawer must in turn be notified ilhe is to be charged. The duty of noti- fication is p^formed by mailing a letter any time before the cloe of the following day, and, unless the writer is guilto of negligence, he is not responsible for its delivery. le is not required to make an idle and abortive attemk to notify an indorser if he cannot ascertain his reidence or address ; but he is bound to make reasonablfijefforts to find him, and to notify him as soon as he doe so. If communication is suspended by war or otherw^e, notice sent at the earliest practi- cable moment is sufficient, even though years have intervened. In shrt, the duty of notification, like that of demand, is perft^med if one does all he reasonably can to protect the \ights of those to whom, on that condition and on tht condition only, he is entitled to look for payment. W rule is founded in justice and soimd mercantile poi>y. Every indorser and every drawer warrants paynipt to those who come after him, provided demand is jomptly made and notice is 348 TALKS ABOUT LAW. promptly given. On the same conditions every indor- ser is entitled to reimbursement from those who stand before him. No one can possibly suffer from the en- forcement of the rule except those who fail to com- ply with it. If the law did not require iomediate action in such cases, some one in the line of indorsers would almost certainly lose his indemnity theough the fraud or negligence of another, dishonest nen would have every opportunity of escaping their jist obliga^ tions, the risk of handling business pape* would be vastly increased, and its circulation and usefulness would be in great measure destroyed. If the drawee of a bill of exchange refuses to accept it, there should be protest and notice the same as if it had been accepted and afterwards dishmored. This is the general rule, prevailing in Englanl and in most of the United States, but not (unless Bcently estab- lished) in Pennsylvania and Ohio. An indorser may waive demand and lotice by words to that effect. Such an indorsemec amounts to a guaranty that the paper wiU be paid. Having complied with the law in rgard to demand, protest, and notice, the holder is not bound to bring a suit immediately. He may wait a jasonable time for payment from any or all of the ps-ties liable ; but if he makes a valid contract with the maker or acceptor to delay action, if his delay is fiything more than mere indulgeuce, indorsers and drwers are discharged. A maker of a note, an acceptr of a bill, is liable absolutely to any indorser or drjver who is compelled to pay, and this liability contipes until the claim is outlawed. Near the beginning of this aapter it was stated that drafts and checks are esser^ally bills of exchange. NEGOTIABLE PAPER. 349 They differ, however, from regular hills in several important respects, among which are the following: They are always drawn on hanks or bankers, and, though they may be antedated or postdated, they are not entitled to days of grace. They require no accept- ance, only as payment is an acceptance, and are rarely presented for any other purpose. They are always supposed to be drawn on a previous deposit of funds. Unless accepted, the drawer or maker is the one prima- rily liable ; in this respect they are like notes rather than bills. All drafts are checks, but not all checks are drafts. Technically a draft is said to be a check drawn by one bank or banker on another"; but the words are often used indiscriminately, and perhaps the distinction is immaterial. Bank bills, such as the bills of our old state banks and our present national banks, are in effect promissory notes pa3'able to bearer on demand. Having no in- dorsers, the duty of prompt demand, protest, and notice does not apply to them : and being in most respects a substitute for gold and silver coin, they do not be- come overdue like ordinary notes. Negotiable paper is designed to pass from hand to hand with peculiar facility, to have numerous owners in a brief space of time ; for many purposes it is far superior to money, and without it the present methods of transacting business would be impossible. Through its agency, the business man or tourist, wherever he goes, may provide himself with current money, with- out the trouble of exchange, without the inconvenience and risk of travelling with a full purse. Through its agency, too, one dollar or a million may be remitted to the remotest corner of the earth, without danger from fire, shipwreck, or robbers, and at a cost covered by the 350 TALKS ABOUT LAW. postage of an ordinary letter. Indeed, it promotes commerce between distant places almost as much as the mail and the telegraph promote the exchange of ideas. It is a remarkable fact that a device so simple and so useful as bills of exchange should have been unknown or almost unknown to the civilized nations of antiquity, — that it should be a disputed question whether they were not first invented less than five hundred years ago. A very ancient origin is claimed for them in India, and there are one or two passages in the old Greek writings which indicate that they were in use at Athens; but the Romans appear to have been unacquainted with them, as they were in the habit of sending agents or slaves on long voyages to receive money. CHAPTER XXX. PARTNERSHIP. Some of the incidents of partnership were referred to in considering private corporations. Partnerships are designed to do on a small scale what private cor- porations do on a larger one, — to unite the capital and experience of two or more persons for a common end. An ordinary partnership " is a contract of two or more competent persons, to place their money, effects, labor, and skill, or some or all of them, in lawful com- merce or business, and to divide the profits and bear the loss in certain proportions." Perhaps the most precise definition is the following by an English judge : " To constitute a partnership the parties must have agreed to carry on business and share the profits in common, where profits mean the excess of returns over outlays." If two persons agree to divide the profits and losses of an undertaking it is a partnership, although the one may furnish all the capital and the other may have the exclusive management of the business. If they unite their money, labor, or skill for a common object, and divide the profits, it is a partnership, al- though one of them may agree to bear aU losses. Those who share in the gains of an enterprise, as gains, cannot ordinarily avoid partnership responsi- bility to third parties, whatever their agreement be- tween themselves; and formerly it was regarded as 352 TALKS ABOUT LAW. settled law that any participation in profits made one a partner so far as the creditors of the firm were con- cerned; but this latter doctrine has been greatly shaken by modern decisions, and it is now quite gen- erally held that where one takes a proportion of the profits of a business merely as compensation for ser- vices rendered, or as rent, or as interest upon a loan, he does not thereby incur partnership liabilities. The name of a man or of a firm, if widely and hon- orably known, may be of great commercial value as a means of commanding credit as well as of drawing trade, and in dealing with a partnership people have a right to rely upon the individual responsibility of all its members. If one sanctions the use of his name as a partner he is liable as such, although he has no interest in the firm ; whether he is a stranger or a re- tiring partner, whatever he is or has been, he cannot be permitted to invest others with a delusive shadow of financial strength. The rule and the reason are the same where an individual or a partnership sells out its business and good-will, and voluntarily suffers the old sign to remain over the door, the old name to be held out to the world. A dormant or secret partner, if he can be found, is liable to third persons in the same manner and to the same extent that he would be if his name publicly ap- peared, for it is contrary to justice and to law that men should be aided in placing the capital and prof- its of a business beyond the reach of its creditors, or that those who take the benefits of trade should avoid its risks by hiding in the dark. Limited partnership is unknown to the common law; but, in many states, there are statutory provi- sions under which persons may become semi partners, PARTNERSHIP. 353 with, liabilities limited to the amount which they in- vest. Ordinarily such partners cannot actively par- ticipate in the management of the business, and their relations to the firm and the amounts which they in- vest must be made matters of public record. Limited partnerships excepted, every member of a firm is liable for aU. of the firm debts. In case of in- solvency, partnership property is applied first to the payment of partnership debts, and what is left to the payment of individual debts ; individual property to the payment of individual debts, and what is left to the payment of partnership debts. One's interest in a partnership cannot be attached in a suit at common law on the claims of individual creditors, because any interference with the possession of one is an interference with the possession of all. If an individual creditor can find nothing but partner- ship property, his only remedy is the somewhat com- plicated and expensive one of bringing a biU in equity and causing the firm to be dissolved. As the undivided interest of a partner cannot be attached, so he cannot seU or mortgage it without the consent of his copartners, for that, in effect, would be to force another into his place. The relation of partnership is one of mutual trust, each is the confidential agent of all, authorized to act for aU -within the scope of the business, and is so held out to the world. Being the agent of aU, a partner is bound to prefer the firm's interest to his own. Unless it is so agreed, he cannot charge for his services, or trade for himself in the firm's line, or in any way be its rival. So far as third parties acting in good faith are concerned, he can bind his firm by any contract within the real or apparent scope of its business ; but 23 354 TALKS ABOUT LAW. he cannot bind it by a sealed instrument unless lie has authority under seal to do so, although such in- strument may, as to the other partners, operate as an unsealed contract. A partnership may be general or special, that is, it may be permanent and include a great variety of af- fairs, or it may be temporary and limited to a single transaction. In either case, each partner is the agent of all for the purpose of carrying on the business, whatever it may be, and for no other purpose. Within the ordinary scope of that business he may bind the firm by any act, however contrary to the partnership articles of agreement, provided those with whom he deals act in good faith and without notice that he is exceeding his authority. He can buy at discretion, he can compromise debts and credits, he can pledge, he can sell the whole partnership property, real estate ex- cepted. But, in matters foreign to the known, regular and ordinary course of the firm's business, it becomes third parties to be on their guard ; in such matters he has not the visible credentials of an agent, and can bind the firm only by acts which it sanctions. It is not essential to its validity that a contract of partnership should be in writing. It is not for the public interest, the interest of trade, or the interest of the parties themselves, to hold those together who cannot agree, and, where a partnership is formed for an indefinite period, any member may withdraw at a moment's notice, provided he does so in good faith and not for the purpose of taking an un- conscionable advantage. It has even been held (al- though upon this question the decisions are conflict- ing) that no partnership can be indissoluble ; that a partnership, formed for a definite period and under sealed articles, can be dissolved at any time upon rea- PARTNERSHIP. 355 sonable notice, the only remedy in such case being a suit for damages. A dissolution does not affect acts already done or liabilities already incurred ; it applies only to the future. If a partner dies, his interest passes to his adminis- trators or executors, for the benefit of his creditors and heirs or legatees, and the firm is thereby dissolved. As the rules which apply to real estate are quite dif- ferent from those which apply to personal property, and savor of a feudal rather than a mercantile age, real estate owned and used by a partnership is, for many purposes, especially in equity, regarded as per- sonal property merely, and if a member of a firm dies it may be so treated in settling his affairs. A firm is dissolved if one of its members becomes a bankrupt, or if he is a citizen and a resident of a foreign country with which war is declared, or if for any other reason Jie is no longer legally capable of acting. It is generally understood that insanity, if settled and permanent, works a dissolution; and a court of equity has power to decree a dissolution and appoint a receiver if a member becomes an habitual drunkard, or compromises the firm by wild and vision- ary schemes and speculations endangering its prop- erty and resources. Where a firm is dissolved by death, the surviving partners, unless shown to be incompetent or untrust- worthy, are entitled to wind up its affairs ; and, what- ever the cause of dissolution, this service usually de- volves upon those who continue the business. Upon dissolution, the late partners, especially the retiring ones, should make the fact known to the pub- lic; otherwise they will still be liable as partners to those who, without notice and in the ordinary course of trade, deal with any member of the late firm. CHAPTER XXXI. AGENCY. An agent is one who acts for another, and, as no one can do everything for himself, a large part of the business of the world is done through agents. So far as his principal or employer is concerned, an agent has only such powers as are given to him, and only in so far as he conforms to those powers can he render his principal liable to himself. For exam- ple, if one instructs his broker to buy bank stock at a price not exceeding fl25 per share, and the broker pays $126, the principal is not bound to take the stock unless the broker wiU make good the difference. So, if one employs an agent to buy a particular farm, and he buys the one adjoining, though at a much better bargain, the principal is not bound to take it, for the property is not that intended and the directions are not obeyed ; but, if an agent were employed to buy a farm of a certain size and description, its selection be- ing left to himself, and he should buy one answering the requirements in aU respects except a variation of two acres in a hundred, the principal might be bound to take it, for it would be as substantial ii performance of the commission as could reasonably be expected. Where the rights of third persons are concepued, an agent has not only such powers as are given him, but also such powers as, from the declarations or conduct AGENCY. 367 of his principal, appear to have been given him. If one has made a practice of sending another to buy goods on credit, his authority to do so will be pre- sumed to continue until notice is given that it is re- voked ; and if, before such notice, the agent of his own accord and with criminal intent buys goods and absconds with them, the principal will be holden. So, if a horse dealer gives an agent general authority to sell horses, and the agent warrants a horse contrary to private instructions, the dealer wiU. be bound by the warranty, for the purchaser can have no means of knowing what the private instructions were, and he has a right to take it for granted that the agent is not exceeding his authority. This rule is subject to a fine distinction. If one employs another to do a single act, he is bound only to the extent of the actual au- thority conferred. The reason is obvious. If A ha^ bitually sends B to C's store to trade for him, C has a right to infer that B's authority is what it appears ; but if A sends a stranger, C is put upon inquiry as to what that stranger's powers really are. So if A intrusts a horse to B to sell, B's employment being special, exceptional, confined to that one trans- action, A will not be bound by an unauthorized war- ranty. Where justice requires it, an agency may even be implied, contrary to the fact, from silence alone. If one is notified by an interested party that another is claiming to act for him, he is bound within a reason- able time to repudiate the acts of such self-appointed agent or else to recognize and confirm them ; he can- not await the issue of events to see which course may be most for his interest. If men could allow irrespon- sible persons to manage their affairs, and deny the au- 358 TALKS ABOUT LAW. thority which, so far as the public can see, they appear to have conferred, there would be no safety in mercan- tile transactions and the community would be at the mercy of sharpers. While an agent, such as a factor or a broker, may sell the goods of his principal and dishonestly pocket the proceeds without prejudice to an innocent pur- chaser, he cannot so pledge or pawn them. If he does, the principal may retake them, or may recover their value from the innocent pledgee, even though the lat- ter supposed that the goods were the property of the agent. This distinction is founded upon the fact that authority to sell is universal among factors and bro- kers, while authority to pledge is exceptional and is not to be taken for granted. If an agent acts in his own name, the principal being unknown, or if he exceeds his authority, he may make himself, as well as his principal, liable to those with whom he deals ; but if he acts in his prin- cipal's name and does not exceed the authority given him, he is not liable. There are some exceptions to this rule, for it is not recognized in maritime law; and it is understood in England, though not in this country, that agents of merchants residing in foreign lands are personally liable unless it appears that credit was given solely to their principals. It requires stronger circumstances to hold a public agent responsible than it does a private agent, for the capacity in which he acts is a matter of common knowledge ; and it is not expected that men will pre- fer his credit to that of the government which he rep- resents, or that he wiU assume its liabilities. The relation of principal and agent is founded upon contract, and, unless it contemplates an agreement AGENCY. 359 to sell land or some interest therein, may be created oraUy or may arise out of a tacit understanding. In many cases an agent's rights, duties, powers, and responsibilities are largely governed by the customs that prevail in a given line of business. Thus, if it is a well known usage for brokers and commission mer- chants, in a certain trade or locality, to sell upon credit, permission to do so wiU be presumed in the absence of directions to the contrary, and they wiU be held re- sponsible only for proper diligence in ascertaining the solvency of customers. So, if one retains a lawyer to prosecute or defend a suit, he invests him with all the powers and responsibilities incident to its management, according to the approved usages of the profession ; but not with authority to compromise it or to surren- der siibstantial rights, unless under circumstances so pressing and imperative that delay for consultation and instructions cannot be had without sacrificing the client's interests. Where nothing is said about an agent's compensation, it will be understood to be a reasonable one, all things considered ; and if the agent is a man of extraordinary reputation for learning and ability, — if, for example, he is a lawyer or a scientist of national fame, — it will be expected that he wiU charge more than ordinary rates, especially in the matters of peculiar difficulty and importance which naturally gi-avitate to such men. An agent has no implied power to delegate his trust to a sub-agent, unless such a course is sanctioned by the usage of his trade or calling; but he may em- ploy ministerial servants, such as book-keepers, clerks, porters, and watchmen, — for authority to transact business carries with it authority to employ the usual and necessary means of transacting it. 360 TALKS ABOUT LAW. In many cases an agent has what is called a lien upon the property of his principal, that is, a right to retain possession of it until he is paid for his services and outlays. Such a lien may arise in one of three ways : by express contract ; by the custom or general course of dealing in the trade ; from the particular circumstances of the case. A particular lien is the right to retain the property of another on account of labor employed or expense bestowed upon it. Such liens are necessary to protect those who serve the general public, who take property to manufacture, repair, keep, or sell. They are greatly favored by courts, and for centuries past they have grown with the growth of trade and commerce, and have been applied to a constantly extending range of objects. At common law they depend upon possession and are lost when it is lost ; but legislatures have not only still further enlarged their application, but have also quite generally provided that in certain cases and for limited periods of time they may continue even after possession is relinquished. " A general lien is the right to retain the property of another for a general balance of accounts." Such a lien can exist at common law only by express con- tract, or by a settled and uniform usage in that par- ticular trade, industry, or calling. The law regards it with jealousy and disfavor. General liens upon papers and writings in the hands of agents, are not, however, as objectionable as general liens upon merchandise and tangible property, and are the rule rather than the exception. An agency terminates by the death of the agent, for the " trust is not transferable." It terminates by the death of the principal, even as to acts of the agent AGKNCY. 361 done before notice of death is received. An agency is also terminated by the judicially declared bankruptcy or lunacy of the priacipal ; and by revocation, which, as to future acts, takes effect upon receiving notice thereof. CHAPTEE XXXII. BAILMENTS. The title of this chapter extends to the most com- mon affairs of daily life. When Smith has his boots blacked, when Mrs. Smith sends out the family wash, when Master Tommy pays a sweet-fern cigar for a ride on a velocipede, when Miss Angelina lends her doU, there has occurred one of those innumerable transactions which, in the language of the law, are called bailments. A bailment is a delivery of goods to be returned 5 or, more definitely, " a delivery of goods in trust, upon a contract, express or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be an- swered." A transaction is not a bailment unless it is under- stood that the article itself, not one like it, is to be returned or delivered to a third person. When one farmer tells another that he wants to borrow a peck of seed corn, he means that he wants that particular corn to plant, not to return, and that he will pay for it with other corn. In reality, instead of borrowing it, he buys it, and, although he does not agree to pay money, no inevitable accident, no question of care or the want of it, can affect his duty to pay what he agrees to pay. Upon the same principle, if a farmer takes a cart- BAILMENTS. 363 load of corn to mill to be ground, and the miller keeps it by itself, he is not responsible for loss unless it is caused by his neglect or that of his servants ; while, if it is mixed with other corn, it is not a bail- ment, but practically a sale, and the miUer is bound to pay other meal whether in fault or not. This distinction applies to vast interests. To a great extent, the corn, the wheat, the cotton, the pork, the agricultural and even the manufactured products of the country, on their way to home and foreign mar- kets, are stored in bulk in grain elevators, warehouses, and depots, a record being kept of the amount contrib- uted by each person, but the contribution itself being mingled with the mass. Thus, a grain dealer in the West sends ten thousand bushels of wheat to New York, to be kept there for a rise in price and then shipped to Liverpool. When it reaches New York it is dumped into an elevator with hundreds of thousands of other bushels of wheat of like kind and quality, and there is no possible way in which it can be distin- guished and separated. Without any negligence on the part of the owners of the elevator, it and its con- tents are consumed by fire. Had the ten thousand bushels been put up by themselves, the owners of the elevator would have been responsible only as ordinary bailees for hire, and, being without fault, the loss would not fall upon them ; but, by mixing the goods so that they cannot be separated, they make them- selves responsible absolutely and unconditionally for ten thousand bushels of like wheat, unless there is an express agreement limiting their liability to that of or- dinary bailees, or unless — which is often the ease and which amounts to the same thing — there is a custom of the trade to that effect so well established and so 364 TALKS ABOUT LAW. well known that the shipper must be presumed to have acted in accordance with it. The law of bailments relates to the degree of care which the bailee, the person intrusted with the goods, must exercise to avoid responsibility for loss, injury, or other accident. It also relates to the rights and powers of the respective parties to the bailment in and over the property. Under no contract, however formal and solemn, can a bailee exempt himself from liability for his own fraudulent acts ; " for the law will not tolerate such an indecency and immorality as that a man shall contract to be safely dishonest." Subject to this exception, the parties to a lawful 'bailment may make any agree- ment they please in regard to the risk; but such agreements pertain to the law of contracts rather than to the law of bailments. Usually nothing is said in regard to the risk, and, when an accident happens, the question as to who shall bear the loss must be determined by general prin- ciples. In the absence of an express agreement to that effect, no bailee, as such, can be held answerable for what occurs without any fault or negligence on the part of himself, his agents, or his servants ; he is not an insurer. Whether the law will hold him respon- sible for the slightest oversight, will exempt him even from the consequences of gross negligence, or wiU fix the limit somewhere between these extremes, depends on the nature of the bailment and the circumstances of the case. There are three simple and fundamental rules which it may be well to state before considering the subject a little more in detail. BAILMENTS. 365 1. Where the hailment is solely for the benefit of the bailor, the bailee is responsible for nothing short of gross negligence. 2. Where it is for the benefit of both parties, the bailee is bound to exercise average care and no more. 3. Where it is for the benefit of the bailee only, he is bound to exercise extraordinary care. The first rule applies to a depositum, or a naked deposit, that is, a storage of the goods without pay ; and to a mandatitm, or commission, that is, a doing something to the goods without pay. The second rule applies to a pledge, such as the pawning of goods as security for a debt ; and to a locatio, or letting for hire. The third rule applies to a gratuitous lending called commodatum. These Latin names are adopted from the Roman law, from which our law of bailments is mainly de- rived. Gross negligence is extreme carelessness, an utter want of care proportionate to the nature and value of the property and the circumstances of the case. Negli- gence is something less than ordinary care. Ordinary or average care is such as people in general, neither the very careless nor the very careful, are accustomed to take of their own property under the like circum- stances. Extraordinary care is such as is character- istic of very careful people. These and like phrases are relative, and whether a given act is extremely careful, extremely careless, or a medium between the two, depends upon the nature and value of the property and all the circumstances of the case. A few illustrations may be in point. Where the bailment is solely for the benefit of the bailee, 366 TALKS ABOUr LAW. that is, where he is a borrower, the law holds him to extraordinary care ; but extraordinary care of an old plow may consist in storing it in a shed after the fall plowing is done, whUe extraordinary care of a diamond necklace may require that it should be worn only on state occasions, and at all other times be kept in the fire and burglar proof vault of some trust company. In many places it would be ordinary care, in some it would be extraordinary care, — that is, there would be no negligence whatever, — in turning a horse loose over night in a pasture ; yet, if the community were infested with horse-thieves and a raid were expected, it might be gross neglect to leave a valuable horse in a stable locked but not guarded. In most cases it would be an act of extreme rashness for a lawyer to ampu- tate a man's leg or for a surgeon to draw a complicated will ; but if a lawyer and his friend were hunting in a wilderness where surgical aid could not be had, and an accident should happen to the friend rendering amputation apparently necessary, the lawyer would not only be justified in doing, but morally it would be his duty to do the best he could under the circumstances, and if he did so, and through his ignorance of surgery killed his friend, no one could blame him. So, if a surgeon, at the earnest request of a dying man, should attempt to draw a will, no one more competent being at hand, he would not be responsible for ignorance which would be unpardonable in a lawyer. In a word, while usually it is gross negligence for one to under- take what he is not at aU fitted to do, and while it is worse than negligence, an imposition and a fraud, to make professions immeasurably beyond one's attain- ments, it is always proper for one to act in case of great necessity, no matter how unqualified he may be, BAILMENTS. 367 if no one better qualified can be had. One may use extraordinary care, in other words be entirely guiltless of negligence, at the very moment when he is putting the property of another in extreme peril; for even extraordinary care is no more care than is reasonably consistent, not only with the nature and value of the property, but also with all other circumstances, among which is the known purpose for which it is taken. A military commander is about to lead a desperate charge. His own horse has been shot under him. He borrows another. It is killed. The owner lent the horse for just the purpose to which it was put, to go wherever he was ridden, to take the risks of battle in its most deadly form, the chances of a forlorn hope. The rider was absolutely without fault, he exposed the animal no more than he did himself, no more than his grim duty demanded. He cannot be held legally responsible for the loss. Under other circumstances, an exposure to a thousandth part of the danger might be gross negli- gence. Circumstances must be very peculiar to legally ex- cuse any bailee from the consequences of gross negli- gence, that is, a want of the slightest care ; still, such circumstances may exist. If one, solely for his own convenience, should intrust his watch to an intimate friend, one whose habits he well knew, a thoughtless, happy-go-lucky fellow, who notoriously never took care of his own property, and that friend, taking the watch merely to oblige, should bestow the same want of care upon it that he did upon his own goods and chattels, and it should be lost or stolen, the bailee would not be liable, for the owner's misfortune would be the natural result of his own folly in leaving his property in such hands. 368 TALKS ABOUT LAW. As a rule, a bailee is responsible for gross negligence, even though be takes goods to keep without pay and merely as a friendly act. He cannot leave them where they will specially invite the attention of thieves. He cannot stand idly by and see them consumed by fire, when they might be saved by reasonable effort. He is not required to bestow great care upon them ; but he cannot be wholly neglectful of his trust. So, as a rule, where one, out of neighborly kindness, undertakes to carry or repair an article, he cannot do it recklessly without making himself liable for dam- ages. He may change his mind and refuse to do the act, for his promise, being without consideration, is not binding ; but if he attempts to keep it, the owner of the property has a right to require that whatever is done shall be done in good faith and in such a manner as will not amount almost to a wanton injury. At the same time the law does not permit those who seek gratuitous favors to be as exacting as they would have the right to be if they employed service in the ordi- nary way and paid for it ; to a certain extent it agrees with the homely proverb, "One should not look a gift horse in the mouth." Where one officiously undertakes the charge of goods, to keep them or to do something to them, his responsibility is greater, even though his motives may be disinterested. Very likely the owner would prefer to be under no obligation to him, would prefer to pay for services rendered, and to employ some one else to render them ; at any rate, if one presses his services upon another in such a way that they can hardly be declined without giving offence he is not in the posi- tion of one of whom the service is asked as a favor, and his legal duty in regard to care and diligence is the same as if he rendered the service for money. BAILMENTS. 869 One who finds and takes charge of lost goods is lia- ble for gross negligence the same as if it were a gra- tuitous deposit or mandate. As already stated, where property is pledged or let, the bailee must keep it or use it with average care, that is, he must be as careful as people in general would be if it were their own. To so much the owner is entitled, for he is not seeking a gratuitous favor ; more he cannot ask, for he is not rendering one. Where property is stolen, lost, destroyed, or injured in the hands of such a bailee, it becomes an important question whether the owner is bound to prove negli- gence or whether it will be presumed until the con- trary appears. Upon this point the authorities are conflicting, and in several states judges have decided it one way or the other by close majorities, instead of unanimously. On the one hand it is said that he who charges another with a fault should prove the charge by affirmative evidence. On the other hand it is said that most accidents are caused by negligence ; that, in the great majority of cases, the owner of prop- erty in the hands and keeping of another has no means of proving negligence ; that the person in charge of the property is the one of all others to know the facts and circumstances ; that, if he was careful, it is gener- ally easy for him to prove it. The latter rule, where it is adopted, applies with still more force to a bor- rower than to a bailee for hire, for a want of extraor- dinary care is more readily presumed than a want of ordinary care. In case of a pledge or pawn, the bailee, after the debt comes due and after giving reasonable notice to redeem, may sell the property, reimburse himself, and hold the balance of the proceeds until called for. In 24 370 TALKS ABOUT LAW. most states such proceedings are regulated by statute, and those who make a business of lending money upon pledges of personal property are generally required to take out licenses as pawnbrokers. Unless by agree- ment to that effect, a pledgee cannot use property held in pawn if use would injure it or depreciate its value. If the article will not be injured by use, if, for exam- ple, it is a diamond, it is said that he may wear it, but in doing so he is held to extraordinary, instead of ordinary care. The property must be used, if that is necessary to preserve its value ; a horse must be ex- ercised, a cow must be milked. Unless a different agreement is made, the necessary expense of keeping such property may be charged to the owner, and, if it jdelds a return greater than the care and expense of keeping, such balance must be credited in payment of the debt. The bailee is entitled to his necessary out- lays and is accountable for his receipts, because the pledge is simply collateral security for the payment of a debt, not payment itself. Even if the security is lost, the debt still remains ; although if it is lost through the bailee's fault the bailor has a counter claim for its value. When a debt is due and payment is offered, the bailee must deliver up the pawn if it is in his power to do so ; and, in case he refuses, he becomes a wrongdoer, and is answerable for any loss or damage that may happen to it, no matter how careful he may be. A pawnor may sell and assign his right to redeem the pawn; so the pawnee may assign the debt due him, and transfer the pawn held as security, unless the circumstances of the case imply a special and a personal trust. A pawn is less than a mortgage, and ordinarily the right to hold it as such is lost when pos- session is surrendered ; but if the pawnor recovers it BAILMENTS. 371 by force or fraud, he may be compelled^ to restore it or otherwise be held responsible. The rule is the same if he borrows it for a special purpose, unless it is in the mean time attached by his creditors. A pawnor may even be guilty of theft or burglary in taking his own property, for his ownership is subject to the right of another. The interest of the pawnee is such that he has the same right as the pawnor to maintain a suit against any third person who unlawfully comes into possession of the property. It has been held in New York that a broker who buys and carries stock in his own name, taking a de- posit or margin from his customer to secure himself from loss by depreciation, is a pledgee, and as such has no right to sell without notice when the margin is exhausted, any custom of Wall Street to the contrary notwithstanding. Locatio, a letting for hire, may be either — loca- tio rei, a hiring of the thing itself, as where one hires a team at a livery stable ; locatio operis faciendi, a bailment of the thing for work to be done upon it, as where one sends his watch to a jeweller's to be cleaned ; locatio operis mercium vehendarum, a carrying for pay, as where one employs another to move goods. One who hires or borrows personal property of any kind must pay the ordinary expenses incident to its use, unless there is an understanding or a custom to the contrary ; but, in case of emergency, the bailee, whether he is a hirer or a borrower, has implied au- thority to charge the owner with such extraordinary and unforeseen expenses as are reasonably necessary to save the property. Thus, if one hires or borrows a horse for a day, he must feed him ; but if the animal is taken on the road with a severe fit, and the services 372 TALKS ABOUT LAW. of a horse-doctor are needed, although the bailee may be liable in the first instance the owner is the one who should ultimately pay the bill. Bailees for hire who take goods to keep, to work upon, or to carry, usually have a lien upon them, that is, a right to detain them until their reasonable charges are paid ; but, when paid for their services upon the goods, they do not as a rule have the right to hold them as security for other debts. When one leaves goods with another to be stored, repaired, altered, or moved, and they are destroyed without fault on the part of the bailee, the latter is entitled to pay for the time he has kept them or for the work he has done upon them. There is no differ- ence in principle between such a case and a farmer's liability to pay a laborer for hoeing corn afterwards kUled by frost. Innkeepers and common carriers are exceptions to the rule that bailees for hire cannot be held respon- sible for loss or accident if they use ordinary care. An innkeeper cannot be held responsible if the bag- gage of a guest is destroyed by inevitable accident or taken by irresistible force ; if it is consumed by a fire for which he is not to blame, or carried off by an armed band of robbers ; but, extraordinary circum- stauces of this kind excepted, he may be required to make good a loss without the slightest negligence on the part of himself or his servants. Thus, if a coat or a valise is stolen by a sneak-thief, the innkeeper wiU be liable for its value, no matter how vigilant he may have been. To fix this liability upon the innkeeper it is not necessary that the property should be in his special custody ; it is sufficient if it comes to the house in the regular way as the baggage or effects of a guest, BAILMENTS. 373 and it attaches on arrival, even though the owner has not then appeared. An innkeeper may limit his re- sponsibility by express contract ; and is freed from it, if the guest gives special instructions in regard to his effects in consequence of which they are lost. The extraordinary liability of innkeepers is derived from the E,oman law, and has been a part of our common law for ages. Although it may work hardship in some cases, on the whole it is founded upon justice and pub- lic policy. Travellers, far from home and acquaint- ances, are at a great disadvantage. They can rarely prove negligence or fraud, and, even when they can do so, they are not in a position to await the law's delay. They are compelled to trust strangers, offering them entertainment for pay, and if their rights were only those of ordinary bailors they might be imposed upon almost with impunity. In regard to the liability of an innkeeper, it should be added that the technical meaning of the word is much narrower than its popular meaning, or that of its modern substitute, hotel keeper. An innkeeper is one who holds himself out to the world as keeping and who does keep a house of entertainment for the travel- ling public — a public house. As an innkeeper he can- not select his guests. So long as he has accommoda- tions, he is bound to take all that apply, if they con- duct themselves properly and will pay according to the entertainment received, and if he refuses a guest vsdthout good cause he is liable to an action for dam- ages. There is a wide distinction in law between an innkeeper and a boarding or a lodging-house keeper, although most innkeepers combine the several avoca- tions,, and in fact it is sometimes difficult to distinguish the guest of an inn from a boarder, a lodger, or a ten- 374 TALKS ABOUT LAW. ant. A boarding or a lodging-house keeper is free to receive or reject as he pleases, and is responsible only for ordinary care. So the keeper of a pleasure house, such as a seaside resort, is not an innkeeper as to those who visit him for the season, and may decline to re- ceive boarders on account of their general reputation, or their race, or their color, or for any other reason that may make his house less popular, or for no rea- son at aU, the same as one may be as exclusive as he pleases in his own home. The liability of an inn- keeper does not attach when he lets a room merely to display goods for sale, or when he invites a friend and entertains him gratis. One may stay at an inn a con- siderable time and still be a guest, or he may stay a shorter time and be a boarder or a lodger, for whether he is to be regarded as the one or the other must de- pend upon all the circumstances of the case ; but, gen- erally speaking, an inn, tavern, or hotel is an inn, in the legal sense, as to transient guests, and a board- ing or lodging-house as to others. The liability of a common carrier of goods is even greater than that of an innkeeper. A common carrier of goods is one whose business it is to carry goods, wares, and merchandise, not for particular individuals, but for the public at large, for all who have commod- ities to be transported and who wiU pay the regular and uniform rates, according to size, weight, and value. So long as their facilities are sufficient, common car- riers, like innkeepers, cannot refuse to serve those who tender the established rates; and, for the safe transportation of goods, if properly directed and packed, they are liable absolutely and unconditionally, the act of God and the public enemy excepted. By the act of God is meant inevitable accident not due BAILMENTS. 375 to human agency, such as a stroke of lightning or an earthquake shock. By the public enemy is meant the armed force of a hostile government. A band of rob- bers, an armed mob, even organized insurrectionists, are not a public enemy within the meaning of the law. After goods have reached their destination, and the consignee has had reasonable time in which to take them away, and has neglected to do so, the liability of the carrier as such ceases and he becomes an ordi- nary bailee. It is the same if it is the duty of the carrier to deliver the goods and the person to whom they are directed cannot be found. Where goods pass from one carrier to another, as between themselves each is liable for loss on his own route ; but, so far as the owner is concerned, the gen- eral doctrine seems to be that he, if he pleases, may look to the one who first accepted the goods if pay was collected for the whole distance. Thus, a Maine express company takes a package to deliver in Cali- fornia and collects pay for the entire transit, and, al- though the package is lost beyond the Rocky Moun- tains and the Maine company's route terminates at Boston, the owner may look to it for indemnity. The extraordinary liability of a common carrier of goods is founded upon reasons as much stronger than those which apply to an innkeeper as the liability of the one exceeds that of the other. A package is deliv- ered to a public carrier to be transported hundreds or thousands of mUes ; if it is lost, it is nearly always im- possible for either the consignor or the consignee to prove negligence, and he is equally helpless if the ser- vants of the carrier enter into collusion with robbers. Public carriers undertake to convey goods safely, they seek patronage on that condition, and they, charge 376 TALKS ABOUT LAW. rates which include, and are understood to include, the risks of insurance as well as the cost of transportation. They are not, however, responsible for losses caused by the folly or the fraud of their patrons. One can- not pack a porcelain vase as he would a water-proof coat and hold an express company for breakage ; neither can he fill a salt box with bank bills, conceal- ing the nature of its contents, and claim indemnity for its loss. A common carrier is entitled to such infor- mation in regard to the contents of a package as is necessary for its preservation ; and, if it is of extraor- dinary value, the fact must be disclosed, that corre- sponding care may be taken of it and that a rate may be charged proportionate to the risk. The liability of a common carrier of passengers is not as extensive as that of a common carrier of goods. One can retain no oversight of a package which he sends a thousand miles by express ; but he can take care of himself while on a journey, and he cannot be stowed away like a box of goods or locked up in a burglar-proof safe. There is no reason, therefore, why his ticket should be regarded as an insurance policy. Common carriers of passengers must take all reasonable precautions for the safety of human life and limb, and if they do so, and accidents occur with- out any fault on the part of themselves or their ser- vants, they are not responsible. The conveyance of baggage is a necessary incident to the conveyance of passengers, and a common car- rier of the latter is liable for the safety of the former to the same extent as if he were a common carrier of goods, unless the passenger himself retains possession and control of his baggage, or unless the liability is limited to a given value by notice, as it often is, or BAILMENTS. . 377 by statute or by express contract, as it sometimes is. By baggage is meant such personal efEects, clothing, ornaments, money, etc. as a traveller may reasonably carry with him for use and convenience while on a journey ; and only for such things, things incident to the journey which he is taking, can a carrier of pas- sengers be held liable in the capacity of a common carrier. Express, railway, and steamship companies are the most familiar examples of common carriers ; but it has been strenuously contended that telegraph compa- nies perform similar duties and should be subjected to the same liabilities. This doctrine has not found much favor with courts and is not considered sound on common law principles. Unless subjected to the lia- bility of common carriers by express statute, telegraph companies are held to a high degree of care only, and cannot be charged with losses for which they are blameless. Although it has frequently been held that public policy will not permit telegraph companies to exempt themselves by express contract from liability for aU negligence, it has also been held that they may limit such liability to some extent; and, if they are to be held responsible for anything beyond the cost of the message, they may require it to be re- peated at the expense of the sender to insure accu- racy. CHAPTEE XXXIII. INStTRANCE. Insurance is an assumption of a risk for pay, " a contract whereby one, for a consideration, undertakes to compensate another if he shall suffer loss." The written contract of indemnity is called the pol- icy ; the amount paid, the premium. Oral contracts of insurance may be valid, but they are so unusual that questions in regard to them can seldom arise, except in cases where agents neglect to write policies until losses occur. If the minds of the parties have met, if the terms and conditions of the contract are fully agreed upon, if it is understood to be a present and existiag fact, the company is as much bound — unless the contract is in violation of the statute of frauds, or of some statute of a local and exceptional nature — as it would be if the policy were filled out, delivered, and paid for. A man calls on his agent and says: "My policy in The, Qermania expires to-day noon, and I want it renewed." The agent replies : " All right ; we wiU consider it re- newed from to-day noon. If you will call to-morrow I will give you the policy." That night, before the policy is written, the house burns down. From such conversation a jury would be justified in finding that a contract, taking effect on the same day at noon, was made for new insurance, in the same company, to the INSURANCE. 379 same amount, for the same time, on the same condi- tions, and at the same rates as the old insurance, and that credit for the premium was given until the agent should have time to write out a new policy. Upon such a finding, unqualified by other facts, the owner of the property would be entitled to his insurance. It would be otherwise if the company or the terms of the contract were not fully agreed upon, either expressly or by implication, or if the understanding related to the future instead of to the present, to the time of fill- ing out the policy, or to the time of paying for it. A great variety of risks — to bankers from defalca- tion, to merchants from bad debts, to farmers from storms, insect plagues, and epidemic diseases — may be and are made subjects of insurance; but the prin. cipal departments are fire, marine, and life insurance, and of these fire insurance is by far the most impor- tant. It has grown to enormous proportions since the first regular office was opened in London in 1681. It rep- resents hundreds of millions of dollars, and no doubt the bulk of combustible property, in this country at least, is insured. A poor man owns a house, a rich man a factory. They are two out of a hundred thousand people, each having property liable to be burned at any time. To any one of them a fixe might be a serious loss; to many of them ruin. They cannot afford to take the chances. By a careful collection of statistics, in which all in- surance companies have a common interest, it is found that the proportion of property of any kind consumed by fire, though on the whole gradually increasing, does not vary greatly from year to year, extraordi- 880 TALKS ABOUT LAW. nary conflagrations like the Chicago and Boston fires excepted. It is therefore possible to estimate approx- imately the risk to which property of any kind is ex- posed. Upon such estimates the rates of insurance are based. The small sums collected from each per- son insured, making large sums in the aggregate, are relied upon for the payment of ordinary losses, the ex- penses of conducting the business, and, if it is a stock company, for dividends on the capital risked in the enterprise ; also for the gradual accumulation of a surplus to meet the extraordinary demands incident to great fires. Thus the transaction is mutually beneficial, afford- ing the insured indemnity, and yielding the insurer in most cases a return corresponding to the somewhat hazardous nature of his investment. Upon any safe and conservative system of insur- ance, any system that insures, it is obvious that the public in the long run must pay more in premiums than it receives in losses; what is gained is such a distribution of losses that they do not fall with over- whelming severity upon individuals. It is a common thing for insurers to protect them- selves in the same way. A merchant, for example, has a large and valuable stock of goods. He wants insurance to the extent of half a million doUars. The agent with whom he deals represents only ten com- panies, each of them having numerous other risks in the immediate vicinity. According to the homely proverb, "It will not do to put too many eggs in one basket." They, therefore, issue policies for fifty thousand dollars each, and immediately reinsure the greater portion of the same, so that, although the merchant may know nothing about Jt, the premiums, INSURANCE. 381 and, in case of fire, the losses may be divided among thirty or forty companies. If it were not for this cus- tom, insurance companies having many and large risks concentrated in small areas could not pay their losses when great fires occur, and would become bankrupt. Policies of insurance may be either open or valued. An open policy, the usual form, is one that leaves the value of the property insured an open question until a fire occurs. A valued policy is one in which the value is fixed when the policy is written, and the amount of which must be paid in hiR in case of total loss, and propor- tionally in case of partial loss. Usually, whether a policy is open or valued de- pends upon the intention of the parties, as manifested by the words used in the instrument ; but in a few states legislative acts have been passed declaring that aU policies upon buUdings shall be regarded as valued. These acts have been stubbornly resisted by insurance companies, and, upon the recent passing of such an act in New Hampshire, every foreign company with- drew its business from the state. Whether open or valued, a policy of insurance upon property is only a contract of indemnity. If one owns a building, his insurable interest is its value, as proved in case of loss, or as agreed upon beforehand. If he owns an undivided tenth, his insurable interest is but a tenth of its value. If he sells, he parts with his insurable interest. He cannot claim payment for another's loss or for more than he loses himself. To permit him to do so would operate as a bounty upon carelessness and incendiarism. Although one cannot recover for a loss occurring after he has sold the property, he may legally assign 382 TALKS ABOUT LAW. his insurance to the purchaser, subject to the accept- ance of the insurer if the property is a building, irre- spective of such acceptance if it is a ship. It is a general rule of law that, where two persons make a contract, a stranger cannot be substituted without the consent of both parties. This rule applies to fire in- surance ; and, while companies almost invariably ac- cept an assignment if the risk is not thereby increased, they have the right to refuse to do so, and to declare the contract at an end. In this respect the distiac- tion between fire and marine insurance is well settled, — the rule in regard to the latter, founded upon the maritime policy of commercial nations, being a marked exception to the general law of contracts. A policy of insurance upon property is a contract of indemnity against such direct losses as fairly come within its terms. Thus, damage by fire includes the scorching of one building by the burning of another, injuries done by water used to extinguish the fire, breakage and loss incident to removing goods to a place of safety, and even losses by theft consequent upon the exposure. On the other hand, a phrase wiU not be strained so as to include everything that might by possibility come within it. If a man's chimney is knocked over by a stroke of lightning, or if he so overheats his furnace as to cause the woodwork of his house to shrink and the plastering to fall, he cannot recover for damage done by fire. A policy of insurance does not extend to remote and consequential damages unless such an intention is clearly expressed. A mill may be burned when it is earning great dividends, and, before it can be rebuilt, the golden harvest may be over ; while a merchant is tebuilding his store a rival may secure his customers j INSURANCE. 383 or, the fire may destroy his credit, involve him in ruinous litigation, and force him into insolvency. In many cases, perhaps, the indirect losses from a fire exceed the direct losses ; but they would open so wide a door for fraud, are so difficult to estimate, are so vague and intangible, that the law does not recognize them unless they are expressly insured against. In opportunity for knowledge of the subject matter the insured usually has a great advantage over the insurer, and the latter has the right to inquire of the former concerning facts bearing upon the nature and extent of the risk, that he may determine whether to take it and at what price and on what conditions. The same rules apply to insurance that apply to other contracts; and the minds of the parties must meet without fraud and with at least the means of avoiding mistakes. It therefore becomes the person seeking insurance to be careful what he says and does. He may find to his cost that a false warranty, a false representation, or a concealment of facts materially increasing the risk has brought him a disastrous law- suit instead of indemnity. In the law of insurance a warranty is an assertion upon the truth of which, or an undertaking upon the performance of which, it is agreed that the validity of the policy shall depend. It is one of the conditions upon which the insurance is sold. "Whether the fact stated," says May, " or the act stipulated for, be ma- terial to the risk or not, is of no consequence, the con- tract being that the matter is as represented or shall be as promised ; and unless it prove so, whether from fraud, mistake, negligence, or other cause, not proceed- ing from the insurer, the insured can have no claim. Indeed, one of the very objects of the warranty is to 384 TALKS ABOUT LAW. preclude all controversy about tlie materiality or im- materiality of the statement. The only question is, has the warranty been kept ? " Nothing will be regarded as a warranty which is not incorporated in the insurance papers or made a part of them by reference. While courts cannot vary the plain terms of a contract, thereby setting up a contract which the parties to it never contemplated, they do not favor insurance warranties. They do not extend them beyond what is " nominated in the bond,"- the "pound of flesh" does not include by implication the "jot of blood," and if the words used fairly admit of a less rigorous construction it wiU be preferred. Unless words clearly amount to a warranty, they wiU be re- garded as a representation only. A representation is a statement collateral to the contract of insurance, which may or may not be for- mally embodied in it, and the truth of which is not warranted as a- condition precedent to its validity. If representations in regard to facts peculiarly within the knowledge of the insured, or supposed to be so, are false and material, and the insurer is led by them to suppose that the risk is less than it actually is, he may avoid the contract on the ground of fraud or mistake, the same as he might any other contract under the like circumstances. It is not necessary that representa- tions should be literally true, as warranties must be ; it is sufficient if they are substantially true. A ship- owner applied for insurance against privateers in time of war. He represented that his vessel carried twelve guns and twenty men. In fact it did not carry twenty men; but it carried a number of boys and several swivels in addition to the guns named. Though the representation was literally false, it was substantially INSURANCE. 385 true, for the vessel's means of defence were greater than stated, and the insurance company had to pay the loss. An honest but erroneous statement that is material and is relied upon, wiU invalidate an insur- ance policy ; while an immaterial statement will not, though wilfully false. The law looks less to the moral quality of the act than to its tendency to mislead. It is the fact that the minds of the parties have not fairly met, that the risk was greater than the insurer un- derstood and had a right to understand that it was, that justifies him in avoiding the contract, in saying that it never existed. Insurance does not contemplate certain loss ; it is a calculation of chances from known facts, and, if the insurer is misled in regard to the facts, he may plead fraud or mistake, even though the misrepresentation has no connection with the loss. For example : In applying for insurance a man states that his chimneys are in a safe condition, when in fact they are dangerously defective. Before the insurer discovers the misrepresentation and cancels the policy, the house is struck by lightning and burned to the ground. It will not avail the owner to say that the fire was not caused by defective chimneys. The actual risk was not as represented, and, if the insurer had not been misled, he might have declined it or have charged a higher rate. As a general rule mere non-disclosure does not affect the validity of a contract. " Caveat emptor " (Let the buyer beware) is a maxim of law, and neither party is required to volunteer information for the other's ben- efit ; but, where a contract is based upon the under- standing that material facts peculiarly within the knowledge of one of the parties shall be fully dis- closed, an intentional withholding of them is a breach 25 386 TALKS ABOUT LAW. of faith and equivalent to false representation. This is termed a concealment, and it renders an insurance policy voidable as it does any other contract. Con- cealment, therefore, " is not a mere unintentional silence or inadvertence. It is a positive, intentional omission to state what the applicant knows, or must be presumed to know, ought to be stated. It is a sup- pression of the truth whereby the insurer is induced to enter into a contract which he would not have entered into had the truth been known to him. It is a decep- tion whereby the insurer is led to infer that to be true, as to a material matter, which is not true." The right to take advantage of false warranties, false representations, and concealments is given to the insurer for his own protection, "as a shield, not as a sword." If he quietly pockets premiums year after year, knowing all the facts and making no objection until a loss occurs, he cannot in good faith say that he has been misled, the law will presume that he has acquiesced in the conduct of the insured, and his day of complaint wiU be past and gone. While the insured has a great advantage in some respects, the insurer has an equal advantage in others. The insurer draws the contract, which is a printed blank filled out with names, dates, descriptions, and signa- tures. It contains numerous warranties, represen- tations, conditions, limitations, restrictions, exceptions, and provisos. Every printed sentence has been drafted by eminent counsel and in the light of innu- merable legal decisions. In this respect the insurer has an immeasurable advantage over the insured, who, if he reads his policy, rarely gives it a second thought, or is capable of appreciating its full force and effect. It is therefore settled that, " while courts will extend INSURANCE. 387 all reasonable protection to insurers, by allowing them to hedge themselves about by conditions intended to guard against fraud, carelessness, want of interest, and the like, they will nevertheless enforce the salutary rule of construction that, as the language of the con- dition is theirs, and it is therefore in their power to provide for every proper case, it is to be construed most favorably to the insured, ... so as not to defeat without a plain necessity his claim to the indemnity which, in making the insurance, it was his object to secure." It is the duty of courts to protect insurance companies from imposition and fraud; it is equally their duty to see to it that honest policy holders are not swindled out of the insurance they buy and pay for.^ 1 By an outrageous abiise of the right " to hedge themselves about by conditions " certain companies hare brought a deeper odium upon the respectable business of insurance than any Quirks, Gammons, and Snaps ever did upon the honorable profession and practice of the law. The following scathing and masterly rebuke is an extract from a deci- sion delivered by Chief Justice Doe, in the case of X)« Lancey v. The Mockingham Farmers' Mutual Fire Insurance Company (52 N. H. 581), and in spite of its length it is believed that it will interest the general reader. " The state of things believed to exist was this. Some companies, chartered by the legislature as insurance companies, were organized for the purpose of providing one or two of their officers, at head- quarters, with lucrative employment, — large compensation for light work, — not for the purpose of insuring property; for the payment of expenses, not of losses. Whether a so-called insurance company was originally started for the purpose of insuring an easily earned income to one or two individuals, or whether it came to that end after a time, the ultimate evil was the same. Names of men of high standing were necessary to represent directors. The directojahip, li?ce the rest of the institution and its operations, except the coUectiou of premiums and the division of the same among the collectors, was nominal. Men of eminent respectability were induced to lend their names for the official benefit of a concern of which they knew and were expected to know nothing, but which was represented to them as highly advantageous to the public. There was no stock, no investment of capital, no individ- ual liability, no official responsibility, — nothing but a formal organi- 388 TALKS ABOUT LAW. If a country trader insures his goods subject to the condition that the premises shall not be used for zation for the collection of premiums and their appropriation as com- pensation for the services of its operators. " The principal act of precaution was to gu^u-d the company against liability for losses. Forms of applications and policies (lite those used in this case) of a most complicated and elaborate structure were pre- pared, and jSlled with covenants, exceptions, stipulations, provisos, rules, regulations, and conditions, rendering the policy void in a great number of contingencies. These provisions were of such bulk and character that they would not be understood by men in general, even if subjected to a careful and laborious study ; by men in general, they were sure not to be studied at all. The study of them was rendered particularly unattractive by a profuse intermixture of discourses on subjects in which a premium payer would have no interest. The compound, if read by him, would, unless he were an extraordinary man, be an inexplicable riddle, a mere flood of darkness and confusion. Some of the most material stipulations were concealed in a mass of rubbish, on the back side of the policy and the following page, where few would expect to find anything more than a dull appendix, and where scarcely any one would think of looking for information so im- portant as that the company claimed a special exemption from the operation of the general law of the land relating to the only business in which the company professed to be engaged. As if it were feared that, notwithstanding these discouraging circumstances, some ex- tremely eccentric person might attempt to examine and tmderstand the meaning of the involved and intricate net in whicb he was to be entangled, it was printed in such small type, and in lines so long and so crowded, that the perusal of it was made physically difficult, pain- ful, and injurious. Seldom has the art of typography been so success- fully diverted from the diffusion of knowledge to the suppression of it. There was ground for the premium payer to argue that the print alone was evidence, competent to be submitted to a jury, of a fraudulent plot. It was not a little remarkable that a method of doing business not designed to impose upon, mislead, and deceive him by hiding the truth, practically concealing and misrepresenting the facts and depriv- ing him of all knowledge of what he was concerned to know should happen to be so admirably adapted for that purpose. As a contri- vance for keeping out of sight the dangers created by the agents of the nominal corporation, the system displayed a degree of cultivated Ingenuity, which, if it had been exercised in any useful calling, would have merited the strongest commendation. " Travelling agents were necessary to apprise people of their oppor- INSURANCE. 389 storing or keeping kerosene oil or gunpowder, it will be construed as a prohibition upon keeping them ia trmities and induce them to act as policy holdeis and premium payers, under the name of 'the insured.' Such emissaries were sent out. ' The soliciting agents of insurance companies swarm through the country, plying the inexperienced and unwary, who are ignorant of the principles of insurance law and unlearned in the distinctions that are drawn between legal and equitable estates. ' Combs v. Hannibal Savings ^ Ins. Co. 43 Mo. 148, 152 ; 6 Western Ins. Eeview, 467, 529. The agents made personal and ardent application to people to accept policies, and prevailed upon large numbers to sign papers (rep- resented to be mere matters of form) falsifying an important fact by declaring that they made application for policies, reversing the first material step in the negotiation. An insurance company, by its agent, making assiduous application to an individual to make applica- tion to the company for a poKcy, was a sample of the crookedness characteristic of the whole business. " When the premium payer met with a loss, and called for the pay- ment promised in the policy which he had accepted upon the most zealous .solicitation, he was surprised to find that the voluminous, un- read, and unejtplained papers had been so printed at headquarters, and so filled out by the agents of the company, as to show that he had applied for the policy. This, however, was the least of his sur- prises. He was informed that he had not only obtained the policy on his own application, but had obtained it by a series of representations (of which he had not the sKghtest conception), and had solemnly bound himself by a general assortment of covenants and warranties (of which he was unconscious), the number of which was equalled only by their variety and the variety of which was equalled only by their supposed capacity to defeat every claim that could be made upon the company for the performance of its part of the contract. He was further informed that he had succeeded in his application by the falsehood and fraud of his representations, — the omission and misstatement of facts which he had expressly covenanted truthfully to disclose. Knowing well that the application was made to him, and that he had been cajoled by the skilful arts of an importunate agent into the acceptance of the policy and the signing of some paper or other, with as little understanding of their effects as if they had been printed in an unknown and untranslated tongue, he might well be astonished at the inverted application and at the strange multitude of fatal representations and ruinous covenants. But when he had time to realize his situation, — had heard the evidence of his having beset the invisible company, and obtained the policy by just such 390 TALKS ABOUT LAW. quantities, not upon bringing them in a little at a time to meet the demands of a miscellaneous retail trade. So a condition that a house shall not be left vacant does not extend to a mere temporary absence of those means as those by which he knew he had been induced to accept it, had listened to the proof of his obtaining it by treachery and guile, in pursuance of a premeditated scheme of fraud, with intent to swindle the company in regard to a lien for assessments, or some other matter of theoretical materiality, he was measurably prepared for the next regular charge of having burned his own property. " With increased experience came a constant expansion of precau- tionary measures on the part of the companies. When the court held that the agent's knowledge of facts not stated in the application was the company's knowledge, and that an unintentional omission or misrepresentation of facts known to the company would not invali- date the policy, the companies, by their agents, issued new editions of applications and policies, containing additional stipulations, to the effect that their agents were not their agents, but were the ag'ents of the premium payers ; that the latter were alone responsible for the correctness of the applications ; and that the companies were not bound by any knowledge, statements, or acts of any agent not con- tained in the application. As the companies' agents filled the blanks to suit themselves, and were in that matter necessarily trusted by themselves and by the premium payers, the confidence which they reposed in themselves was not likely to be abused by the insertion in the applications of any unnecessary evidence of their own knowledge of anything, or their own representations, or their dictation and management of the entire contract on both sides. Before that era, it had been understood that a corporation — an artificial being, invisi- ble, intangible, and existing only in contemplation of law — was capable of acting only by agents. But corporations, pretending to act without agents, exhibited the novel phenomena of anomalous and nondescript as well as imaginary beings, with no visible principal or authorized representative ; no attribute of personality subject to any law or bound by any obligation ; and no other evidence of a practi- cal, legal, physical, or psychological existence than the collection of premiums and assessments. The increasing number of stipulations and covenants, secreted in the usual manner, not being understood by the premium payer until his property was burned, people were aa easily beguiled into one edition as another, until at last they were made to formally contract with a phantom that carried on business to the limited extent of absorbing cash received by certain persons who were not its agents." INSURANCE. 391 occupying it ; and a condition that smoking shall not be allowed simply means that the insured shall abstain and make reasonable efEorts to have others do the same. These illustrations, which might be multiplied indefinitely, are sufficient to show the liberality with which the contract will be construed for the benefit of the insured. If a policy contains a condition or warranty that a certain act, such as putting live ashes in a wooden box shall not be done, it makes no difference whether it is done by the insured himself or by his servants without his knowledge ; and, although the express terms of the policy may not be violated, misconduct or neglect of so aggravated a nature as to be equivalent to wanton recklessness, will render it voidable if a loss is caused thereby. Thus, where the captain of a steamboat, to win a race and in violation of law, fed his furnaces with barrels of turpentine and piled a large number close to the fire to be ready for that purpose, in con- sequence of which the steamer was burned, it was held that the owners were not entitled to insurance. So, if one should find a fire so small that it could be ex- tinguished with a pint of water, and should quietly suffer it to spread and consume his house, his neglect would be of such a character as to destroy his claim for indemnity. But ordinary negligence, even gross negligence that does not amount to misconduct or to utter and wanton recklessness, does not have this ef- fect; unless cut off by the express terms of the policy, the insured may recover for losses caused by his own carelessness as weU as for those caused by others or by inevitable accident. In most cases negligence is an answer to a claim for damages ; but the object of in- sui-ance is security, and, if the policy itself does not 392 TALKS ABOUT LAW. forbid it, the law permits the honest holder, although he may be careless, to claim indemnity for any mis- fortune insured against, according to the terms of the contract. This is equally true of life insurance. Unless the contract includes a provision to that effect, it is no answer to say that the insured brought about his own death by intemperance or by reckless exposure. The voluntary suicide of a sane man avoids the insurance upon his life ; so far as the insurer is concerned, it corresponds to the wilful burning of property. If the insured takes his own life when too insane to realize what he is doing, he is guilty of no fraud; and, in the absence of a clause relating to suicide, the validity of the policy is not affected. In most life insurance policies may be found clauses relating to suicide. They have led to utterly conflicting decisions, some of which are striking examples of the length to which courts sometimes go in construing the contract as fa- vorably as possible to the insured. According to the one theory and line of decisions, if a policy contains a provision that it shall be void in case the insured " commits suicide," or " takes his own life," or " dies by his own hand " (the three phrases being generally understood to have the same meaning), it exempts the insurer from liability, although the act of self- destruction was that of an utterly insane and irre- sponsible person. According to the opposite theory and line of decisions, '-death the result of insanity is death by disease. The insane suicide no more dies by his own hand than the suicide by mistake or acci- dent. If the act be not the act of a responsible be- ing, but is the result of delusion or perversion, whether physical, intellectual, or moral, it is not the act of the INSURANCE. 393 man." These conflicting decisions have led companies to add the words, " sane or insane," the effect of which is to exempt them from liability whenever the insured intentionally takes his own life. Insurance companies almost invariably make similar conditions relative to violent death, if it results from a duel, oc- curs in the commission of a crime, or is the execution of a legal sentence. Provisions of this character, how- ever, are scarcely necessary; for any attempt to in- sure one against the direct consequences of his own crime, whether the consequences be physical or pecu- niary, is inconsistent with public policy and contrary to law. A creditor has an insurable interest in the life of his debtor to the extent of his debt, or even beyond it, if the remainder is to be held in trust for other pur- poses. A dependent relative, or one liable to be de- pendent, has an insurable interest in the life of his actual or probable benefactor. The ties of friendship, often as strong as those of kindred, have frequently been recognized in the later decisions; and the ten- dency seems to be in favor of the doctrine that any pecuniary interest is sufficient if it is not "merely spec- ulative. All policies of insurance, no matter what classes of risks they relate to, abound more or less in condi- tions, restrictions, exceptions, and provisos. Many of these are very important; but, to dwell upon them and upon the constructions that courts have given to them would extend this chapter beyond all due limits. It will, therefore, be closed with the following bit of advice, often given and seldom followed : " When you buy insurance, read your policy." CHAPTEE XXXIV. PATENTS, COPTTtlGHTS, TEADE-MAEKS. At common law an inventor had no exclusive right to his invention or discovery after making it public. Whether an author had such a right to the production of his brain after it was printed, was a question upon which learned judges differed. More than a hundred and seventy-five years ago a majority of the English Court of King's Bench were of the opinion that he had. Since then the question has never been directly adjudicated, and it is no longer of any practical im- portance. The Constitution of the United States declares that Congress shall have power " to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Our patent, copyright, and trade -mark law is United States statute law, enacted in accordance with the above constitutional provision, and interpreted by the rules and principles of the common law. In such matters the United States has exclusive jurisdiction ; with them individual states have nothing to do. A patent is a grant by the government of " the ex- clusive privilege of making, using, and vending, and authorizing others to make, use, and vend an inven- tion." PATENTS, COPYRIGHTS, TEADE-MAEKS. 395 As the law now stands, patents are issued for the term of seventeen years — except those for designs, which run three years and six months, seven years, or fourteen years, at the election of the patentee, the fees being larger for a long term than for a short one. A foreigner cannot patent his inventions here. Whoever applies for a patent must be a citizen, or else must have resided in this country one year, and have made oath of his intention to become a citizen. In this respect our government acts upon the motto, " Spain is for Spaniards." "Any person who has invented or discovered any new and useful art, machine, manufacture, or compo- sition of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publicar tion in this or any foreign country, before his inven- tion or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor." An abstract idea, the discovery of a principle, can- not be patented ; there must be a thing having form and substance. If one should say: "I am prepared to show that light is a motive power, and I wish to patent it for such uses," the reply might well be : " God made light ; man cannot set his private seal upon it. Invent a machine by which you can put it to a new use, and patent the machine." Suppose it were actually discovered that light could be made a motive force, that through its agency in all proba- bility communication could be had with the innumer- 896 TALKS ABOUT LAW. able worlds and systems of worlds all around us ; sup- pose, further, that such a discovery could be patented ; in that case the government would say in effect to the patentee : " For seventeen years, unless you give your consent, no one shall make any experiments in regard to this subject, no one shall invent anything for the fulfilment of this grand idea, and, if you or those to whom you sell your rights attempt anything, no one shall attempt any improvements upon it." If an abstract idea, the discovery of a principle, could be patented, and if the government had power enough to protect the patentee, — as no government ever can have, — instead of promoting science and useful arts it would destroy them. On the other hand, nothing is patentable which does not include and embody a new idea. A mere application of an old machine to a new use, a mere imitation, a mere change of material, of form, or of size, is not sufficient. There must be some exercise of the inventive faculty. Such exercise, however, may be very slight. If a new thing has been pro- duced, whether it is independent of former inventions or an addition to and an improvement upon them ; " if a novel and useful result has been obtained, neither the simplicity of the structure nor the greater or less amount of invention or intellect employed as an ele- ment are of importance in determining the validity of the patent." An extreme illustration is the simple barbed-wire fence, which might have been suggested by any rose-bush, and which has proved more lucra- tive than ninety-nine out of a hundred of the inven- tions that have cost years of study and experiment. A step further and it would not have been patentable. Thus, an indiarrubber pencil-head with a hole in it for PATENTS, COPYRIGHTS, TRADE-MARKS. 397 the pencil is not an invention. It is often extremely difficult to draw the line between mere mechanical work and a slight exercise of the inventive faculty. The invention must be useful as well as new. An invention is not useful unless it may be put to a law- ful purpose and will enable the operator to accom- plish the desired result. The degree of utility is not material, and may be very slight. It is sufficient if the result is an article improved in any respect, or one produced with more expedition, or at less cost. Indeed, whUe the invention must be different from others intended for the same purpose^ it is not indis- pensable that it should be superior to them. When one has invented, and wishes to patent, a new and useful machine, art, process, or combination of matter, or a new and useful improvement upon the same, he should consult a solicitor of patents, for, al- though obtaining a patent is usually a simple matter, there are few exceptions to the adage, " He who is his own lawyer has a fool for a client." A petition is drawn, which may be in four lines, as follows : — " To the Commissioner of Patents : Your peti- tioner, a resident of prays that letters patent be granted to him for the invention set forth in the annexed specification. John Smith." Then follows a specification, often requiring the highest degree of care and skill, setting forth and de- scribing what is claimed as new, how it is intended to operate, and the result which it is intended to accom- plish. Inventors, as a class, have not the special train- ing that renders men exact and accurate in the use of language ; indeed, this is one of the rarest attainments. Specifications, therefore, are viewed, and amendments are accepted with great liberality. But liberality has 398 TALKS ABOUT LAW. its limits, for an inventor cannot in justice hold others liable for the infringement of claims too vague and in- definite to be understood. Following the specification is an oath by the applicant that he believes himself to be the original inventor, that he is a citizen, etc. If the application is made by joint inventors, or by an inventor jointly with his assignee, or by the executor or other representative of a deceased inventor, the pe- tition and oath should be varied accordingly. When the nature of the case admits of it, drawings, signed and attested, must be attached to the specification, and models may also be required. When the invention or discovery is of a composition of matter, as a medi- cine, the applicant may be required to furnish the composition and its ingredients in sufficient quantities for the purposes of experiment. The applicant must pay the fees required by law, and, unavoidable delays excepted, must have his invention ready for official examination within two years after the filing of his petition. The government fees incident to obtaining a patent in ordinary cases are thirty - five dollars ; in design cases, from ten to thirty dollars ; for the extension of a patent, one himdred dollars ; for caveats, appeals, etc., etc., other sums fixed by law. Of course inci- dental expenses, for models, drawings, legal services, etc., vary greatly. If one makes an invention or discovery, and requires time to mature it before filing his petition, he may furnish what is called a caveat, that is, he may give notice of what he purposes to do, which notice will be filed in the secret archives of the patent office and will protect his rights for a year. If for any reason it is deemed expedient to abandon PATENTS, COPYRIGHTS, TBADE-MAEKS. 399 proceedings for a patent and begin anew, it may be done, provided the rights of another inventor or of the public have not intervened. "Any citizen of the United States or resident therein who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photo- graph, or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of the models or de- signs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person, shall, upon complying with the pro- visions of this chapter, have the sole liberty of print- ing, reprinting, publishing, completing, copying, exe- cuting, finishing, and vending the same ; and, in case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or rep- resented by others. And authors may reserve the right to dramatize or to translate their own works." " No person shall be entitled to a copyright unless he shall, before publication, deliver at the ofiice of the librarian of Congress, or deposit in the mail, addressed to the librarian of Congress, at Washington, District of Columbia, a printed copy of the title of the book or other article or a description of the painting, drawing, chromo, statue, statuary, or a model or design for a work of the fine arts, for which he desires a copyright ; nor unless he shall also, within ten days from the pub- lication thereof, deliver at the- office of the librarian of Congress, or deposit in the mail, addressed to the libra- rian of Congress, at Washington, District of Columbia, two copies of such copyright book or other article, or in case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of the same." 400 TALKS ABOUT LAW. Aside from postage and copies, the only expense necessary to obtaining a copyright is the fifty cents which must be paid for recording the title or descrip- tion. If the copyright is of a book, the copies fm-- nished must be of the best edition, and, in case of a new edition, with substantial changes, another copy must be furnished. The fee for copyrighting prints or labels designed to be used for articles of manufacture not connected with the fine arts is six dollars. The public are entitled to notice that a copyright is claimed, and, upon the title-page or the page following it, if a book, — on some visible portion, if any other article, — must appear the following words : " Entered according to act of Congress, in the year 18 — , by John Smith," or, " Copyright, 18—, by John Smith." There is a similar provision in regard to patents. If the exclusive right to dramatize or to translate is desired, appropriate words to that effect must be added. A copyright runs twenty-eight years, and ordinarily the author, inventor, or designer, or his widow or chil- dren, may renew it for the further term of fourteen years. The work of a foreigner residing abroad cannot be copyrighted here, for, though an American publisher buys the manuscript, he is not the "proprietor" within the meaning of the statute, which is intended to encourage and protect only Americans. It is sometimes exceedingly difficult to draw the di- viding line between what may and what may not be copyrighted ; and equally difficult — in a majority of cases the reasons are the same — to draw the line be- tween what may be published and what is an infringe- ment of another's right. PATENTS, COPYKIGHTS, TRADE-MARKS. 401 A subject can no more be copyrighted than a prin- ciple can be patented. Facts and ideas once made known are the common property of mankind. The author can retain only the clothing with which he robes them, his "language, idiom, style, outward semblance, and exhibition of them." Thus, any one is at liberty to write a life of General Grant, and ia do- ing so to get his facts and form his opinions from any published matter ; but the product must bear the impress of his own mind, at least, it must not be a substantial copy or a servile imitation of a copyrighted book. A copyright may extend to the title if the latter is unique and original, descriptive of the work rather than of the subject. Quotation is incidental to authorship and to the right of criticism and review ; but it must not be car- ried to the extent of literary piracy, it must not ap- propriate so much or such portions of the work as to materially impair its sale. An abridgment is a condensation of a single work. A compilation is selections from various authors. Where one makes a fair abridgment, using his own language and merely putting another's ideas in a con- cise way, his work is generally regarded as a new one.^ Even a compilation may be copyrighted. One may say with Montaigne, " I have gathered a posie of other men's flowers, . . . but the thread that binds them is mine own," and may claim his reward for the patience with which he has collected them and for the taste I This doctrine was established by the greatest of English eqiiity judges, the Earl of Hard-wicke, nearly a century and a half ago, and has never been overruled, although its soundness has recently been questioned by Lord Campbell. 26 402 TALKS ABOUT LAW. and skill with wldch he has arranged them and set them in order. A work that is grossly obscene or immoral cannot be copyrighted ; but the mere fact that it may be put to an immoral purpose is no objection if it has a proper and legitimate one. Thus a novel device for a pack of playing cards may be copyrighted, for whUe they may be used for criminal gambling, they may also be used for innocent amusement, and the law will presume that the latter was intended. The morality of a work may depend far more upon the object of its publication than upon the subject which it treats. For example, justice and humanity require that matters should be discussed in legal and medical books which no civilized community would tolerate as a part of its general literature. So, it may be commendable to expose vice, when a similar publication, if intended merely to gratify a prurient taste, would be grossly indecent. The recipient of a letter, whether of a private and confidential nature or not, may keep it or destroy it ; but he cannot publish it without the consent of the writer, unless it becomes necessary to do so in self- defence. The writer and those who represent him are alone entitled to the privilege of publication and of copyright. When an author sends a story to a magazine, and gives no intimation of any wish to reserve an interest in it, the presumption is that it is an absolute sale, and the proprietors of the magazine will be justified in copyrighting it and in republishing it as a book. So, if a painter sells a picture, if a sculptor sells a statue without restriction, the purchaser may take and vend photographs or models of the same. But an au- PATENTS, COPYRIGHTS, TRADE-MARKS. 403 thor or an artist may reserve any right he pleases, and the law will protect it according to the fair under- standing of the parties. Copyrights, and patents also, may be assigned and sold with the greatest freedom. No particular formal- ity is required, except that the transfer must be in writing and recorded at Washington. In the narrow sense in which it is here used, a trade-mark is a device, such as a picture or a mono- gram, adopted by a manufacturer or a dealer and af- fixed to his goods for the purpose of indicating that they are manufactured or sold by himself, and, such trade-mark being duly described and registered and the fees being paid, cannot be copied or imitated by rivals. While it is not the policy of our government to issue patents and copyrights to foreigners, it re- gards trade-marks differently, for they are hiere pri- vate stamps, and are valuable to their owners only in proportion to the reputation, present or prospective, of their goods. Any foreigner may seek the protection of a trade-mark in this country provided his govern- ment extends a like courtesy to our citizens. CHAPTEK XXXV. In the first chapter it was remarked that real estate law formerly was, and in a measure still is, one of the most complex, abstruse, and technical branches of human learning. In preparing for admission to the bar, a young man who is a thorough student may spend much time in mastering — or in attempting to mas- ter — the rule in Shelley's case and the deeper mys- teries of uses and remainders. He may even rival the industry of Lord Eldon, when he was plain Jack Scott, living in cheap chambers, studying till three or four o'clock every morning, a wet towel on his head to drive away headache, and the sweet bride with whom he had eloped sitting beside him and cheering him on in his determined and successful efforts to win fortune, fame, and power. But, when the student be- comes a full-fledged and husy lawyer, he discovers that there is much of the law pertaining to real prop- erty, which he seldom has occasion to use in a gen- eral practice, especially that portion of it which could have originated only under the feudal system, which could have been developed only under the patronage ^ I "wisli to acknowledge the special use that I have made, in "writ- ing* portions of this chapter, of an excellent lecture on farm law, de- livered before the Massachusetts State Board of Agriculture by the eminent Dean of the Boston Law School, Hon. Edmund H. Ben- nett. LAND. 405 of a great landed aristocracy, and by the careful nursing of lawsuits as heirlooms from generation to generation. Nine out of ten of old, successful, and scholarly lawyers will say, " I don't know much about the law of real estate." If lawyers in a miscellaneous practice may forget the more intricate portions of real- estate law, as they do the Greek and higher mathemat- ics of their college days, surely such topics can have no place in a brief and fragmentary outline intended for non-professional readers, and the aim will be to make this chapter as simple as any that have pre- ceded it. The distinguishing characteristic of our law of real estate is that its rules and principles are so largely of feudal origin. From the lawlessness and barbarism that followed the collapse of the Roman Empire arose a social, political, military, and legal system, based on ownership of land and personal relations connected therewith. For generations prior to the reign of Louis XI., France, for example, was far from being a monarchy in the modern sen.:e of the word. It was rather a loose confederation of great feudal nobles, each of whom was exempt from legislative control and all public tributes, except feudal aids, and exercised the right of coining money, of waging private war, of administering justice, and, in some cases, of conferring honorary titles and degrees, — the king himself being little more than a feudal noble, superior in dignity, but in real power often inferior to many of the vassals that rendered him a nominal allegiance. For a long time after the Norman Conquest the kings of England, with only two or three exceptions, were men of ambition, energy, ability, foresight, and cour- age, and the circumstances of the Conquest made them 406 TALKS ABOUT LAW. kings in fact as well as in name. They were, indeed, no match for a united nobility ; but rarely was an in- dividual subject strong enough to bid them defiance. The feudal system in England, therefore, differed somewhat from that in France, Germany, and other continental countries, the king being really, as well as theoretically, lord paramount. Although there were germs of it before the Conquest, its complete intro- duction into England dates from the reign of William the Norman. Eight hundred years ago, at Salisbury, every land-owner of any note knelt before William's throne, placed his clasped hands within the king's, and took the following oath : " I become your man, from this day forth, of life, of limb, and of earthly worship, and unto you will be true and faithful, and bear you faith for the land I hold of you, so help me God." The feudal theory which then finally tri- umphed, the theory that all land is held directly or indirectly of the king as lord paramount, has been English law ever since, and, a few states excepted, prevails in this country in full force to the present time, the state and national governments being substi- tutes for royalty. Every title, valid as against the state or the United States as the case may be, must be originally founded upon a governmental grant ; for, although long continued possession may be suffi- cient so far as individuals are concerned, it does not affect the rights of the government. If a title were traced to its original source — a very rare thing in the older sections of the country — there would be found a grant from the state or the United States, or, if it antedated the Eevolution, from the crown, either directly, or through the colonial government acting under a grant to itself, and back of that, in many LAND. 407 cases, the records of original discovery and exploration and of cessions from Indian tribes. To return to the time of King William. The great barons, who held their lands directly of the crown, were called tenants in capite. At first feudal posses- sions were not strictly hereditary ; but by the time of the Conquest they had become so, and in England eld- est sons, being as a class best able to render military service, naturally succeeded to the titles and estates of their fathers. Such descent of landed property was subject, in those distant ages, to heavy burdens. If the heir were a minor, the rents and profits went to the king during the minority, and when he came of age and took possession the king was entitled to still further payments. If the heir were a female, she could not marry without the king's consent, for thereby her possessions might increase the influence and power of his enemy, and, unless she accepted the husband of his choice, she forfeited to him the value of the mar- riage. Lands so held could not be sold without the king's permission, usually obtained by paying a con- siderable portion of their value; they could not be attached for debt ; until the reign of Henry VIII. they could not be disposed of by will. The tenant in capite, if a male of fuU age, was bound when sum- moned to attend the king at court (the origin of the present House of Lords) to render military service with his vassals and retainers, to contribute to the ran- soming of the king's person, the knighting of his eld- est son, the dowry of his eldest daughter. These, and like services and payments, more or less uncertain in amount and often arbitrarily enforced, were the con- ditions upon which the land was held. The king was the landlord ; his great nobles were tenants. 408 TALKS ABOUT LAW. They were also landlords themselves. In precisely the same way in which they held of the king, lesser barons, knights, and gentry held of them, paying rents in homage, in blood, in money, and in produce. These, in turn, might be landlords in the same way. Thus the same land was often held in military tenure by many individuals, including aU ranks between the king and persons of ignoble birth and condition, who were not entitled to attend their lord at court or to bear arms, and who paid their rents exclusively in money, in produce, or in labor. Beneath them were the serfs who tilled the soil. This system was universal. It became " the sacra- mental tie of all public relations ; " the basis of he- reditary rank; the source of honor, position, power. By it were determined the burdens and the privileges of all classes, from the king to the serf. Indeed, kings were sometimes feudal tenants as well as feudal land- lords. The kings of England paid homage for their Norman possessions. It extended even to the church ; bishops, abbots, priors, deans were feudal lords and feudal tenants. The system was designed for mutual protection. It was one step in advance of a totally disorganized state of society. It was adapted to an age when law was comparatively powerless ; when there was no govern- ment in the modern sense of the word, supported by all classes, protecting all classes. As the conditions of society changed, the system outgrew its usefulness, and burdens, once cheerfully borne, were regarded as intolerable. At the same time, the tendency was to increase them, for the tie between lord and vassal had become loosened. The latter was no more a cherished companion in arms, paying for the land he held and for LAND. 409 such measure of security as lie enpyed with lance and battle-axe. His immediate lord no longer had occasion for such services, and instead thereof exacted money payments, often to an indefinite extent and in an arbi- trary manner. It was the interest of the lord to get as much, of the tenant to pay as little, as possible. " As soon," says Blackstone, " as the feudal system came to be considered in the light of a civil establish- ment rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered phi- losophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject ; in pursuance of which, the most refined and oppressive consequences were drawn from what origin- ally was a plan of simplicity and liberty, equally bene- ficial to both lord and tenant, and prudently calculated for their mutual protection and defence." As a natural consequence, through centuries of struggle in courts and Parliament, English real-estate law became one of the most complicated of human sciences, — a stupendous monument to the ingenuity of man ; a vast net-work of technicalities intended to do and to undo, to establish and to circumvent, to fix feudal theories, burdens, and privileges more firmly to the soil, and to emancipate it from them; an end- less labyrinth, where the brightest and the ablest wandered, seeking an exit and finding it not. A mighty oak, the growth of a thousand years, may be hewn down in a day, but its roots wiU long remain embedded in the soil. Feudalism is no more, its bur- dens have disappeared; but the subtle distinctions, the finely-spun theories, to which it gave rise, still spread, like the roots of a tree, through the whole 410 TALKS ABOUT LAW. groundwork of our real-estate law. This is the chief reason why this department of law is so different iu many respects from the law of personal property. It will now be in order to glance at some of the simpler rules and principles applying to land. "The most ample and perfect interest which can be owned in land " is called a tenancy or seizin in fee simple. It is a tenancy because — except in the few states where the theory has been abolished by statute — the government is theoretically the landlord. It is a fee simple or simple feud because it is uncondi- tional and unqualified. For aU practical purposes it is absolute ownership. Subject to the rights of the wife and creditors of the tenant, the land is his to dis- pose of in any way that he pleases. A title does not amount to a fee unless it may continue forever. If it is liable to be terminated by some future and uncer- tain event, such as the birth of a child, it is known as a base or qualified fee. Entailed estates are not favored in this country. In many states entailments are prohibited altogether ; in the remainder they can exist only in a modified form. A life estate is a tenancy for one's own life or that of another. A life tenant may make such reasonable use of the property as will give him the fuU benefit of his interest; but, ordinarily, he must pay the taxes and make necessary repairs. Unless expressly au- thorized to do so, he cannot suffer it to go to decay ; much less can he strip it of wood and timber, or otherwise permanently reduce its value, to the preju- dice of the remainder-man who is to succeed him. Such unauthorized neglect or misconduct is termed waste. What amounts to waste depends of course LAND. 411 upon all the circumstances of the ease. To clear land of wood and timber may increase its value in one section, whUe in another it may render it almost worthless. Even if a life tenant takes the premises " without impeachment of waste," he wiU not be per- mitted to do wanton injury, to deface the family man- sion, or to cut down ornamental trees. Where one has an estate for the life of another, he may transmit it to his heirs or dispose of it by wiU until the event occurs which terminates it. A tenancy for life may be created by deed, by will, or by operation of law, — the two latter being the usual ways. Life tenancy by operation of law has already been spoken of, under the head of dower and curtesy, in the chapter on Hus- band and Wife. An interest in land less than for life is personal property, and is technically known as a chattel real. A lease for a fixed time, whether for one month or for nine hundred and ninety-nine years, is such a chat- tel, being regarded in law as inferior to a freehold or an estate for life. The occasion for leases for hun- dreds of years in great measure ceased before this country was settled; but they are common in Eng- land, and still constitute what are practically the titles to many English estates. A lessee may sub-let if his lease contains no provi- sion to the contrary. He may even assign his whole interest. If he sub-lets, the sub-tenant will not be bound by the original covenants in the lease ; but it may be otherwise if an assignment is taken for the full residue of the term, and, if the original lessee wishes to transfer his interest without imposing his obligations upon another, he should give a lease ex- piring ^he day before hi^ Qwn lease expires. 412 TALKS ABOUT LAW. If one hires a house, taking a lease in common form, and it burns to the ground, he is not relieved from paying rent unless provision is made for such contingency. The technical reason is that the land is the principal thing hired, the house being merely ap- purtenant to it. This reason, which is the one given in the law books, is not founded upon common sense, and it would hardly stand in this practical age if there were not other and better reasons behind it. One who buys a house must take the chances of fire, or pay an insurance company for doing so. One who leases a house buys the use of it ; for the time being he is the owner, and he can even sell his temporary ownership, unless restrained by special agreement. It •is, therefore, just that the parties should divide the risk between them, according to their respective interests. It is also in accord with a wise public policy. For ordinary purposes the tenant has the care and over- sight of the property. If his coachman smokes on the hay-mow, if his domestic kindles fires with kerosene, he is the one to know it and stop it. He is much more likely to do so if his own interests are endan- gered. If rents fall, or one becomes embarrassed, a fire which woxild cancel a long lease might be a great relief. An absolute liability to pay the rent is the most effectual check upon negligence and dishonesty. The rule does not apply to a lease of a single room or an upper tenement. The technical reason is that the thing hired is utterly destroyed. Perhaps a better reason is that the tenant is as liable to fire from an- other's negligence as from his own. Unless bound to do so by the terms of the lease or by some local statute, a landlord is under no obliga- tion to make repairs or to allow a tenant for making them without authority LAND. 413 A tenancy from year to year is one that can be ended only by notice expiring at the period of the year when it began. If no notice is given, it will be understood that the relation is to continue. At com- mon law, usually, but not always, the notice must be six months. A tenancy at will, in the strictest sense, is one for no definite time, one that either party may terminate when he pleases ; but, under modern decisions, in many respects it is scarcely to be distinguished from a tenancy from year to year. If the rent is payable weekly or monthly, the inference may be that it is from week to week or from month to month. The notice to quit must be reasonable, and, at common law, must expire on rent day. A tenant at sufferance is one who wtongfuUy holds over after his right of possession has expired. A ten- ancy at will is ended by a sale of the property and becomes a tenancy at sufferance; and, on the other hand, if a landlord takes rent from a tenant at suf- ferance and permits him to remain, he reinstates him as a tenant at will or from year to year. A tenant at sufferance, one whose term has expired, or who has forfeited his rights by failing to pay his rent, or otherwise, may be expelled by process of law, or the landlord may take the law into his own hands and remove him and his effects, if he can do so with- out a breach of the peace. In the exercise of this power he cannot exceed the bounds of humanity with- out rendering himself liable for consequences. He must not put a tenant, his family, and his goods into the street at midnight or in a drenching storm, and, if one is too ill to be safely moved he must be allowed to remain. 414 TALKS ABOUT LAW. A tenant has the same right to terminate the rela- tion that his landlord has, unless an express agree- ^-ment is made to the contrary. In most states the rights, remedies, and liabilities of landlord and tenant are more or less changed and supplemented by statutes which are intended to sim- plify matters, and which generally have the opposite effect. In many ways besides those already mentioned, dif- ferent persons may be interested in the same land at the same time. Only a few can be referred to here. By the ancient common law, if two or more persons, not being partners, held undivided interests in the same land, in the same capacity, and originating at the same time under the same deed or will, they were known as joint tenants, — the principal incident to joint tenancy being that the survivor became the owner of the whole interest. For this reason joint tenancy is not favored at the present time, and, un- less the intention to create one is clearly expressed, the grantees or legatees will take as tenants in com- mon. For the purposes of this outline it may be sufficient to define tenants in common as those having undi- vided interests in the same land ; for such definition is simpler than a more accurate and technical one, and it applies certainly to ninety-nine cases out of every hundred. A tenant in common may sell his interest as freely as if it were divided, or, if it is more than a life estate, may transmit it to his heirs or dispose of it by .wiU. If such tenants cannot agree in the man- agement of their property, and cannot agree to buy or sell or divide, one or more of them may cause it to be divided by judicial process; or, if it is incapable LAND. 415 of division, to be sold, and the proceeds divided. Tenants in common may be absolute owners or ten- ants in the popular sense, the purchasers of a farm or the hirers of a room for a single week. It is not the degree of interest, but the fact that it is undivided, that is the essence of a tenancy in common ; and it applies equally to personal property as in case of part- nership. Separate estates in land may be divided horizon- tally as well as by vertical lines. The several stories of a block may have distinct owners in fee, each be- ing entitled to an easement for support in the ground below. So one person may own soil for agricultural purposes and another a coal mine beneath it. To fully discuss the important subject of mortages would require volumes ; it must be dismissed with a few lines. A mortgage is literally a dead -pledge. There are various ways of making a mortgage ; but usually it is a single instrument, a deed in common form, on its face entitling the mortgagee to immediate possession, and making him the absolute owner pro- vided the debt or act for which it is security is not paid or performed on the very day named. This is what any one knowing nothing of law would understand by reading an ordinary mortgage of the present time, and this is what a mortgage actually was centuries ago. A mortgage being intended merely as security, and the power which it gave the creditor being liable to great abuse, courts of equity at length began to interpose to protect the debtor in possession of the land as long as he met his obligations, and, if he failed to meet them, to give him a reasonable time, called an equity of redemption, in which to redeem it. Thus courts of equity put their injunctions upon courts of common 416 TALKS ABOUT LAW. law, prohibiting them from enforcing the plain terms of mortgages ; and in process of time equity ripened into law, recognized by the courts of common law themselves, so that now a mortgage has a settled and weU understood meaning quite different from what the language used would indicate. If the mortgagor does not pay according to contract, the mortgagee may take possession by peaceable entry and publication, by suit at law, or by bill in equity, he generally having his choice of several methods, wliich vary considerably in the different states ; and, if his debt is subsequently paid, he must account for his receipts from the estate. After possession is taken, the mortgagor has from six months in some states to several years in others in which to redeem by paying debt, interest, and costs ; if he allows the time to expire, his right is forever cut off or foreclosed. The mortgagee may take the land in payment of the debt ; but he is not usually boimd to do so. By complying with certain requirements, he may cause it to be sold at public auction. If it brings more than the debt, interest, and costs, he must pay over the balance ; if less, his claim for the deficiency will not be discharged. In England and in a number of the United States it is now customary to give what are known as power-of-sale mortgages, imder which the land may be sold by summary process. The owner and occupier of mortgaged property may use it in any reasonable way ; but not so as to mate- rially reduce its value as security. Thus a farmer, es- pecially if his farm is mortgaged for aU it is worth, has no right to exhaust it by selling hay contrary to the custom of good husbandry ; and if he cuts wood and timber in unreasonable quantities the mortgagee may claim it even after it has been drawn to market. LAND. 417 In many states if a farm worth five thousand dollars is mortgaged for that sran, the mortgagor is taxed as if he owed nothing and the mortgagee as if he had created property to the extent of the incumbrance ; in other words, five thousand dollars is taxed as ten thou- sand. To avoid such double taxation, borrowers fre- quently give deeds in common form, taking bonds for reconveyance when the money is repaid with interest ; but this is a dangerous thing to do. The creditors of the lender may attach the property and hold it as his, for it stands in his name ; the creditors of the bor- rower may attach it and hold it as his, for the bond to reconvey (unless it is recorded with the deed, in which case the two instruments constitute a mortgage) is a secret trust, and in law a fraud upon them ; and finally, in some states at least, the tax collector, if he can learn the facts, may treat the transaction as a mort- gage and collect of both parties. A mortgage to secure an indebtedness to be created in the future is not valid as against existing creditors. A familiar example is a mortgage for support in old A title to real estate may be gained by govern- mental grant, as already stated ; it may also be gained by judicial decree, by inheritance, by wiU, by deed, or by long continued, uninterrupted, open, notorious, and peaceable possession under a claim of ownership. As a title may pass by judicial decree, or may be- come involved or clouded without such decree, a pur- chaser who looks no further than the registry of deeds may learn an expensive lesson. To all appearances there, the title may be perfect ; yet the town records may show an attachment, the court records that a judgment has been rendered, the records of a court of 27 418 TALKS ABOUT LAW. equity that a conveyance has been ordered to enforce a bond for a deed or to annul a deed obtained by fraud or mistake, or the owner may have become bail for a friend before any one of fifty justices of the peace, and, although it may be impossible to find any record of it, it will constitute, in some states, a lien upon the property, or finally, back of all and superior to all, there may be liens for betterments and unpaid taxes. When one contemplates buying land, the ownership of which is claimed by inheritance or under a wiU, after satisfying himself that the deceased had a clear title, it will be prudent for him to cause an examina- tion of the records of the probate, surrogate, or or- phans' court, the court, whatever its local name, where estates are settled. He need not be alarmed if he finds nothing there. If there is no will, no disputed claims against the estate, and no minor or other person un- der disability interested in it, it is well enough for the heirs to pay the debts and divide the balance between themselves by the family fireside, and it is no uncom- mon thing for even large estates to be settled in this quiet and pleasant way. Under such circumstances, the purchaser should see that all debts and liabilities of the deceased have been provided for, and that his grantor has taken sufficient deeds from all persons in- terested ; he will have to run the risk that a wiU may sometime be found. If the estate is settled in regular form, he will be aided in his investigations by the rec- ords, and ordinarily claims of creditors not seasonably presented wUl be barred, freeing the land as to them. Whether there is a wUl or not, he should beware of any hostile interest in the land on the part of any widow, widower, heir, legatee, or other person, especially one under disability and not represented. If there is a LAND. 419 will, it must be examined to see that it is valid upon its face. Unless it has been duly proved and the time for appeal has expired, it may be well to ascertain whether any suspicious circumstances, such as mental feebleness, insanity, or undue influence, attended its execution. If the testator leaves children, born or un- born, or descendants of a deceased child, and they are not mentioned or referred to in the wUl, they wiU have an interest in the land which the purchaser must take into account. A child unborn at its father's death has the same rights as another, and, like any minor, may have until he is fortj' one — till he is of age and twenty years more — to assert his rights. The popular idea is that a deed is always a con- veyance of land ; but technically an ordinary contract or receipt is equally a deed if it is imder seal. The seal is what makes a writing a deed. The law re- gards affixing a seal as symbolic of grave deliberation, as a solemn act, like an oath, a marriage ceremony, a confession in open court, and, as land still possesses some vestiges of the supreme dignity and importance attached to it by our feudal ancestors, it cannot be transferred like plebeian bonds and mortgages; the writing must be a deed, a sealed instrument. It by no means follows, however, that one who makes a fair trade for land, pays the price, and takes what would be a deed, if it were sealed, is without remedy. He may recover his money, or he may, tmder certain cir- cumstances, ask a court of equity to compel a proper ■ conveyance ; but un±il such conveyance is made he is not the legal owner. In most, if not in all, of the United States, a seal, or what passes as a seal, is ab- solutely indispensable to a valid paper title, unless it is a title by wiU. 420 TALKS ABOUT LAW. In the several states of this country there are also statutes, having a general resemblance to each other, and requiring that conveyances of land, mortgages, and leases for long terms of years shall be witnessed, acknowledged before a justice of the peace, notary public, or other official, and engrossed upon public records kept for that purpose. If these requirements are neglected, although the deed may be valid so far as the grantor and his heirs are concerned, it may be waste paper as against subsequent purchasers, mortgagees, and attaching creditors who act honestly and in good faith. There are exceptions to the rule, but, generally speaking, men who act on the faith of public records should be protected, and when the law requires that a title shall be recorded, he who neglects it does so at his peril. Suppose A sells his farm to B, and gives him a good and sufficient deed. Re- maining in possession and learning that no record has been made, he afterwards sells or mortgages it to C and leaves for parts unknown. C acts in good faith, without notice of the previous sale, and has his deed recorded. B wakes up to find that his title is worth- less. Or, instead of being a purchaser or a mort- gagee, suppose that C is a creditor of A. He goes to the records, finds that the farm stands in A's name, attaches it, gets judgment, sells it on execution. All that B can do is to sue A on his warranty, and A may be unable to pay a dollar. There are reasons, too, why the law should require deeds to be attested and acknowledged, as well as recorded, and in some states it does so very rigidly, giving to those who buy land, who lend money upon it, or who attach it for debt, the right to take advantage of any such omission, provided they act honestly and not as mere LAND. 421 speculators in the carelessness of others. The trans- fer of land is an important act, not merely from feudal and traditionary reasons, but also because it is real property in a sense in which no other property is real ; it is fixed, immutable, enduring from age to age, and the protection of future owners requires that such transfer should be attended with more formality, and the evidence of it more carefully preserved, than is needful in a sale of chattels which perish with the using, or of which the chief evidence of ownership rests in physical possession. When land in another state or country is to be conveyed, it is well to acknowledge the deed before a notary public or the clerk of a court of record, rather than before a justice of the peace. The latter ac- knowledgment is just as legal ; but the seal of a no- tary or of a court of record is primd facie evidence of authority throughout the civilized world, while the signature of a justice is not. Especially in the West, where it is the custom to hire money on mortgage of capitalists at a distance, and in old countries, where land is extremely valuable, if a deed is acknowledged in another state or country before a justice, it is usual to require that an official certificate of his commission be annexed thereto. In this country, under statute laws which have long been in force in all of the states, the transfer of land by deed, although attended with more formality, is almost as cheaply and easily made as a transfer of bank stock, and every possible facility is given for the examination of titles. Compared with the old English law, applying among other things to entailed estates, our statute laws in regard to conveyance are as simple as a child's primer ; still, even here, it often 422 TALKS ABOUT LAW. requires much time, patience, learning, and judgment to make a complete abstract of a title and to give a reliable opinion upon its merits. In many cases it would be impossible to do so, if it were not for the fact that a title may be gained by an uninterrupted and undisputed line of possession, open, notorious, under a claim of ownership, and ex- tending over a definite period — twenty years in most states. No one could hold property securely, unless Time set his seal of confirmation even upon titles originating in fraud and violence. If rights founded upon ancient conquest were not recognized among nations, what one of them could have a definite territory or boundary lines ? In like manner, public policy and the peace of the community, as well as justice to innocent and hond fide holders, require that there should be a limit to the stale claims of individuals. In most personal actions, this limit is usually six years ; in actions upon instruments under seal and in actions involving a title to real estate, it is usually twenty years. As a rule, if the claim- ant can plead infancy, insanity, or other legal excuse, the time does not begin to run until such disability ceases. The popular notion that one will gain a title by possession alone, unless he pays at least a nominal rent, is incorrect. Of course payment is an admission that he is not the owner ; but mere possession for the prescribed time by permission of the owner cannot ripen into ownership. There must also be, during all the time, a claim of ownership. What amounts to such a claim depends upon circumstances ; acts are usually stronger evidence than words, and no one is expected to post notices or to make proclamations in public. LAND. 423 Very similar to titles gained by possession are ease- ments gained in the same manner, and known as pre- scriptive rights. An easement is a certain right in the land of an- other ; such as the right to pass over it, to let one's eaves drip upon it, to take air, light, or water from it, to derive support for buildings, or to make the* owner contribute to the maintenance of party walls and fences. An easement for public uses, such as a high- way, is usually taken and paid for under powers inci- dent to all governments. Private easements may be acquired by inheritance, and public and private ease- ments alike may be acquired by will, by deed, or by prescription. Prescriptive rights are construed strictly. They can be enlarged only as they are originally gained, by uninterrupted, undisputed use, under a claim of right, for twenty years. Thus, a foot-path cannot be used for teams, a dam cannot be raised, a large water-pipe cannot be substituted for a smaU. one. One may have a way from necessity, as well as by inheritance, will, deed, or prescription. One has a way from necessity when he cannot reach his own land without crossing that of another. The law gives him this right, even though he has been so heedless as to sell the surrounding land without reservation ; for it is contrary to public policy to render land useless. Mere convenience wiU. not create a way from necessity ; if one can reach his land from a public highway, he is not justified in taking a short cut across his neighbor's field. The right ceases with the occasion for it, and, while it continues, must be so exercised as to give others the least possible inconvenience. If one's buildings extend to his line, and his neigh- 424 TALKS ABOUT LAW. bor erects others close to them, the injury may be se. rious, as windows may be darkened and air excluded. The legal right to object is termed an easement in air and light. Such easements may be created by deed or by win ; but there are serious objections to them, and in many of the states they cannot be acquired by prescription. Indeed, it is hardly possible to apply this doctrine to cities, especially to business centres ; and in England, by the custom of London, an excep- tion to the general rule, as laid down by the English courts, has existed for centuries. Even in the country and in states where the doctrine is recognized to its fullest extent, it applies only to necessary air and light. If one wants the surrounding land left vacant that he may enjoy a fine view, he must buy the privilege. An easement for support is the right, acquired by prescription or otherwise, of having one's buildings, party walls, or other structures sustained by his neigh- bor's soil. It is obvious that such easement, especially if the building is a heavy one and is close to the line, may seriously interfere with digging a cellar or other excavation. The easements already referred to, — way, drip, air, light, water, support, waUs, and fences — are the more common ones, at least in this country, and those of less importance cannot be mentioned here. In New York and in some other states, where the land was originally held by great families like the Rensselaers and the Livingstons, there were until long after the Kevolution, and still may be, traces of prescriptive rights of a more feudal character, rights such as were once almost universal in the land from which we take our law, our language, and our civilization. Generally, but not always, easements run with the LAND. 425 land, that is, they enure to the benefit of future owners. An easement founded on prescription is lost by aban- donment for the period required to establish it. There is the same distinction between a prescriptive right and a license that there is between a title by ad- verse possession and mere occupancy. By the strict rules of law a license can pass no interest in land : if A tells B that he may build and use a dam across his sti-eam and B expends ten thousand dollars in doing so, A may revoke the license at any time, if it is gratui- tous, without liability for damages ; and, if B pays no attention to the notice of revocation, A may remove the dam himself. The theory is that a permanent right to use land is an interest in it which cannot be conveyed orally; that one who makes investments without the shadow of a title to the land upon which he locates them must take his chances, and cannot complain if he is allowed to remove his property as best he can. There are cases in which this doctrine is very hard, and in some states courts of common law modify it greatly, and in others courts of equity will interpose to do substantial justice. Even where the doctrine is fully sustained, it is dangerous for one to attempt an unconscionable advantage of it ; for the sympathy of the jury will be against him and he can expect no indulgence from the court. It is becoming harder every year to win unjust causes on technical grounds. There are plants, so naturalists teU us, that move about from place to place and catch their food, and animals that are stationary and to unscientific observ- ers have every appearance of being plants. "It is easy to distinguish a horse from a tree ; but the dividing line between the animal and vegetable kingdoms is 426 TALKS ABOUT LAW. very obscure. A parallel may be found in almost every subject connected with the wide domain of law, and real estate is no exception. It is often difficult, some- times impossible, to tell with any certainty whether a given thing is real estate or personal property, whether it is technically land or a mere chattel. When such a question arises, it must be determined by all the circumstances of the case, mainly by the object with which, and the degree to which, the thing is annexed to the soil or connected therewith. As a rule, legally speaking, land includes aU houses and other buildings standing upon it, all trees and shrubs growing upon it, all walls and fences constructed upon it, aU ponds and bodies of water collected upon it or flowing through it, all air and light above, all mines and minerals beneath, its surface ; in a word, it extends upwards indefinitely, downwards to the centre of the earth, and embraces everything fixed upon, or appurtenant to, the soil. Thus, a house, a tree, a sheet of water, under some circumstances even a loose pile of boards, a chain, or an iron kettle, may be land. In deeding land there is no occasion to mention fixed and permanent improvements, such as buildings. It is customary to do so because most buyers feel safer if they have everything in " black and white," biit it adds nothing to the value of the title. Such improvements, unless expressly reserved, go with the land, and are considered a part of it as a matter of course. It may be in point to give a few illustrations of what has been held to be or not to be included within an ordinaty deed, mortgage, or other conveyance of land. Mr. Janvrin, for the purpose of repairing his barn, removed the tie-up planks, stanchion timbers. LAND. 427 hinge staples, and tie-chains. While these things were scattered about he sold his farm, and the court held that the purchaser was entitled to planks, timbers, sta- ples, chains, and all, even though Mr. J., as he testified, had formed the intention of not replacing them but instead thereof of remodelling his barn and using new materials. Another man took off his blinds and sent them away to be painted, and before they were re- turned he sold his house. The court held that the blinds were a part of it. A sculptor set a large and heavy statue upon his lawn as an ornament. The court decided that by so doing he had made it a part of the land, although it was held in place simply by its own weight, the soil not being disturbed in the least. A movable kettle, fitting over a brick oven and used for boiling swiU, goes with the farm. A furnace in a cellar, according to some decisions, even if it is a portable one, goes with the land ; but a kitchen range, set in the usual way, is personal property. Bean poles that have been used, whether they are stuck in the ground or are lying in a pile, are regarded as real es- tate ; but it is otherwise with poles that are new. Trees, that have been blown or cut down and have been left where they fell, go with the wood-lot ; not so if they have been cut into lumber, logs, or fuel. When a farm is sold, the grass or corn not cut and the pota- toes not dug, go with it ; but there is one thing very peculiar about ripe crops not harvested. In one sense they are real estate ; in another, and at the same time, they are not, for creditors may attach them as personal property and harvest them. The manure heap on a farm is real estate ; the manure heap connected with a livery stable is personal property. In the one case, it is needed where it is, and public policy and good 428 TALKS ABOUT LAW. husbandry require that It should stay there unless the parties otherwise agree ; in the other case it is an ar- ticle to be sold, not used on the premises, and there is no reason why it should be regarded as land. The owner of a woollen mill mortgaged it ; and it was " held, that not only did the engine by which the ma- chinery was propelled, and the shafting, pulleys, and belts pass as a part of the realty, but also the carders, spinning jacks, looms, and other machinery properly belonging to the woollen mill, although only attached to the building by cleats or screws to keep them in place." In many of the United States this decision would be accepted as sound law to its full extent; in many others some of the things enumerated would be regarded as personal property. It is hard to fix the exact second when day ceases and night begins ; it is equally hard to draw the line between many things, and many principles as well, that shade into each other by imperceptible degrees ; it is no wonder that courts do not agree when they are compelled, like Hudibras, to " DistingTush and divide A hair 'twixt south and southwest side." Even where one court holds that a certain thing is real estate and another court holds that a thing of the same kind is personal property, it by no means fol- lows that there is any real conflict between the de- cisions. In one case curtains, mirrors, gas fixtures may be so attached to windows, walls, and gas-pipes, or so well adapted to their surroundings, so obviously intended to go with them, so comparatively worthless if removed, that they are clearly a part of the house. In another case, curtains, mirrors, gas fixtures may be as clearly personal property. In selling real estate it LAND. 429 is always prudent to have a full understanding in re- gard to everything about which there can be a dis- pute, and to have the deed drawn accordingly. The principle which underlies the numberless de- cisions upon this subject is well stated as follows : " Things personal in their nature, but fitted and pre- pared to be used with real estate and essential to its beneficial enjoyment, having been fixed to the realty, or used with it, become part of the land, access ione et destinatione, and pass with it by the deed of con- veyance, although they might be removed without substantial injury to the premises." The above principle applies to mortgages as well as to sales of land, and to subsequent improvements as well as to those made before the mortgage was executed. Between landlord and tenant a far different rule prevails. One may hire a house, a store, or a fac- tory ; may adorn and beautify the first, may fit the second with shelves and drawers and counters, or may put machinery into the third, and at the close of his term may remove the property which he has affixed to or connected with the real estate, provided he does nothing wantonly and leaves the premises in substan- tially the condition in which he found them. He may even put in fire frames, sinks, cisterns, gas-pipes, and like improvements, and afterwards remove them, if he can do so and leave the premises substantially as he took them. He has the same privilege in regard to such temporary buildings as he may erect, provided he does not make or leave a cellar or excavation. If he leases land for a nursery, the young trees which he sets out are personal property, and he may take them up and carry them away. Things attached to or con- nected with real estate, but in such a manner or uu- 430 TALKS ABOUT LAW. der such cirQumstances as to be personal property still, are called fixtures. It would be an intolerable hardship if a tenant were held to as strict a rule in regard to fixtures as is a seller, a mortgagor, an exec- utor, or a remainder-man. If such were the case ho one could safely live in a hired house, do business in a hired store, or cultivate a hired farm without mak- ing an express contract such as not one man in a hundred would ever think of making. But when the tenant surrenders possession at the expiration of his term, the peculiar indulgence which the law allows is at an end, and he cannot afterwards return and re- move things which he attached to the real estate. Where a lease is for an indefinite time, or depen- dent upon a contingency, — where, for example, one lets a farm for the remainder of his life or until he has an opportunity to sell it, — the tenant may have rights extending beyond his term, otherwise he might suffer great injustice. The same principle applies where one is owner of an estate for life. When a tenancy, whether it is created by lease, by deed, by wiU, or by descent, and whether it is for the life of the tenant himself or of some one else, or for a definite time, comes to an end by the happening of a contingency, the tenant, or, if he is dead, the executor or adminis- trator representing the estate, is entitled to such grow- ing crops as are planted or sown annually, and may enter upon the premises to cultivate and harvest and take them away. Under such circumstances they are personal property, and technically are called emble- ments. The English law of descent is intended to perpetu- ate great families, largely deriving their position, dig- nity, and power from their landed possessions. Gen- LAND. 431 erally speaking, the land goes to the eldest son, together with the title, if there is one ; while the per- sonal property — far more lucrative, perhaps, but far less sacred — is divided among the children equally. Under such a policy it is natural that with the estate should pass things inseparably connected with its trar- ditions and its splendoDS, — things that should prop- erly belong to the head of a great house, from the coat of mail worn by its founder and the ancient plate, and the portraits hung in ancestral haUs, to the deer in the park and the rabbits in the warren. Such things are treated as land, and are called heirlooms. We have adopted English law for the most part, but not that portion of it which steps " across the thresh- old of the home, and over the cradle of childhood, to lay the foundation for a lordly, privileged class," and therefore our courts do not recognize heirlooms in the technical sense. English heirlooms are sometimes in effect title deeds. In ancient times a grant was made by putting the grantee in open and visible possession in the presence of witnesses ; but occasionally grants were made in a still more symbolical manner. In comparatively mod- ern times a suit in equity was brought for the posses- sion of a horn which had been in the family, and by which the title and estate had been held from the reign of King Canute, who died eight hundred and fifty years ago. Upon the horn is this inscription: " Kyng Knowd gave WyUyam Powse this home to hold by thy londe." Such heirlooms were sometimes indicative of a special condition on which the land was held, — as to wind a horn on approach of an en- emy, or to perform certain services on state occasions. Now and then a grant or an heirloom carried with it 432 TALKS ABOUT LAW. a privilege equally remarkable. Once, in conferring an ancient earldom, the grantee and his heirs were given the right, " age after age so long as the throne shall stand," to sit with covered head in presence of the king, and, in the course of centuries, this extraor- dinary privilege was asserted several times as a decla- ration of the authority under which the peerage and its estates were held. In describing land in a deed or other instrument, monuments are more important than areas and dis- tances.i If the deed says "one hundred rods to a ^ The following' aceoimt of the curious methods taken by our Ei^- lish ancestors to preserve a rememhrance of boundaries may be found in Hone's Year Book, p. 589, and in 57 N. H. Eep. p. 392: "A perambulation, or, as it might be more correctly called, a circumam- bulation, is the custom of going round the boundaries of a manor or parish, with witnesses, to determine and preserve recollection of its extent, and to see that no encroachments have been made upon it, and that the landmarks have not been taken away. It is a proceed- ing commonly regulated by the steward, who takes with him a few men and several boys, who are required to particularly observe the boundary lines traced out, and thereby qualify themselves for wit- nesses in the event of any dispute about the landmarks or extent of the manor, at a future day. In order that they may not forget the lines and marks of separation, they ' take pains ' at almost every turn- ing. For instance ; if the boundary be a stream, one of the boys is tossed into it ; if a broad ditch, the boys are offered money to jump over it, in which, of course, they faU, and pitch into the mud, where they stick as firmly as they had been rooted there for the season ; if a hedge, a sapling is out out of it, and used in afflicting that part of their bodies on which they rest in a position between standing and lying ; if a wall, they are to have a race on the top of it, when, in trying to pass each other, they fall over on each side, — some de- scending perhaps into the still, stygian waters of a ditch, and others thrusting ' the human face divine ' into a bed of nettles ; if the boun- dary be a sunny bank, they sit down upon it, and get a treat of beer and bread and cheese, and perhaps a glass of spirits. ... In years after, when the boys had become men, they would remember the brook by the wetting they had in it, the wall by the muddy ditch or the bed of nettles, the hedge by the flogging, and the sunny bank by the good cheer enjoyed upon it." LAND. 433 pine-tree," and it is one hundred and ten rods or only ninety rods, the pine-tree will still be the corner. So, if the deed say " containing one hundred acres," and there are one hundred and twenty-five acres or only seventy-five acres within the given monuments, the latter will prevail. An intentional over-statement, a deliberate lie in regard to the amount of land will not necessarily affect the validity of a sale; while even an honest mistake in pointing out boundary lines will entitle the purchaser to redress, although the number of acres may exceed the estimate of either party. Unless a contrary intention is clearly expressed, D. Makenzie Wallace gives the following account of a similar cus- tom among the Cossacks of the Don, which existed until the middle of the present century : " As the Cossacks knew very little about land- surveying, and still less about land registration, the precise boundary between two contiguous ' yoorts ' — as the communal l£ind of a stanitsa was called — was often a matter of uncertainty, and a fruitful source of disputes. When the boundary was once determined, the following original method of registering was employed. All the boys of the two stanitsas were collected and driven in a body like sheep to the in- tervening ■ frontier. The whole population then walked along the frontier that had been agreed upon, and at each landmark a number of boys were soundly whipped and allowed to run home. This was done in the hope that the victims would remember, as long as they lived, the spot where they had received their unmerited castigation. The device, I have been assured, was generally very effective, but was not always quite successful. Whether from the castigation not being always sufficiently severe, or from some other defects in the method, it sometimes happened that disputes afterwards arose, and the whipped boys, now grown up to manhood, gave conflicting testi- mony. When such a case occurred the following expedient was adopted: One of the oldest inhabitants was chosen as arbiter, and made to swear on the Scriptures that he would act honestly to the best of his knowledge ; then, taking an Icon in his hand, he walked along what he believed to be the old frontier. Whether he made mistakes or not his decision was accepted by both parties and regarded as final. This custom existed in some stanitsas down to the year 1850, when the boundaries were clearly determined by government officials." 28 434 TALKS ABOUT LAW. the line extends to the centre of the bound or monu- ment named. To a tree, means to its heart; to a road, to the middle of it ; to a river, to the thread of the current, and includes all islands between that and the nearer shore. There are exceptions to this rule. In most sea-coast states a farm bounded by the sea extends only to high -water mark, the flats being public property. In Massachusetts it extends to the ebb of the tide and includes the flats. A farm bounded by a lake or pond extends only to low-water mark; and in some states the rule applies to navi- gable rivers. A mere widening of a stream is not a pond within the meaning of the law if there is a per- ceptible current flowing through it. To all intents and purposes, navigable rivers and rivers suitable for logging are public highways owned by the state, and are analogous to ordinary roads owned by the county or the town. Except in the states where land bounded by a navigable river ex- tends only to low- water mark, the title of an adjoin- ing owner in a river or in a road, subject to the pub- lic right of travel, transportation, and repairs, is the same as it would be if it were fenced in. Thus, if A cuts down a tree, or gathers the apples, or turns his cattle loose to feed on B's part of the road, or posts advertisements of his wares there, he is liable to a suit the same as if he committed the trespass in B's field. A line tree belongs to the adjoining owners equally, and neither can cut it down without the other's tjorf- sent ; but a tree that stands on one side of the line belongs exclusively to the owner on that side, al- though the roots may extend far into his neighbor's soil and the branches overshadow it. If it is a fruit- LAND. 435 tree, such neighbor has no right to the fruit that falls on his land, and the owner may even come over and pick it up. It does not follow, however, that one must sufEer another to shade his premises or to draw nourishment from his soil ; he has a legal right to cut off the roots and branches of trees so far as they ex- tend over the line, taking care not to waste or use the trimmings. The same principle applies to the eaves of a house which extend over his line, causing the water to drip on his land, and he may saw them off. If A builds to the extreme edge of his line, his neighbor, B (subject in some cases to the easement of light), may build against it, using it as a waU, pro- vided he does not injure or endanger it, and is willing to take the risk of its removal. If A builds over the line and B builds against him, B is entitled to so much of the wall as stands on his land. A can nei- ther take it down nor make B pay for any part of it. If one erects a block of two or more houses and sells them to different persons, the partition walls belong to the adjoining owners equally. As already remarked, water may be land. This seems paradoxical, and space may be taken for a few words in regard to the water rights covered by an ordinary title to real estate. One may make a rea- sonable use of a stream flowing through his premises ; but not such a use as will injure his neighbor above or below. He cannet flood the one, unless under au- thority of some mill act or like statutory provision, and even then not without payment of damages. He cannot deprive the other of the benefit of the water in its accustomed channel. It is not his exclusive prop- erty, as it woidd be if it were a small pond entirely surrounded by his own l^^nd, It may be stated in a 436 TALKS ABOUT LAW. general way that one has no right to throw sawdust, shavings, mineral waste, and other refuse into a stream to the prejudice of those below ; but the appli- cation of this rule is often a difficult matter, and the decisions appear to be somewhat conflicting. The manufacturer and miner must not be sacrificed to save the farmer slight inconvenience; neither must the farmer be ruined that mills and mines may be run to the greatest profit. As common law is elastic, taking local usage and local industries more or less into account, the tendency is to enforce the rule more strictly in agricultural than in manufacturing or in mining states; and in some states courts leave each case as it arises to a jury to say whether, under aU the circumstances proved, the use is a reasonable one. If a brook or rivulet is clogged or fouled to the injury or discomfort of an adjoining owner, he may clean it, and, in doing so, may enter upon his neighbor's land and deposit the dredgings upon the bank. One may construct a wall to protect his soil from the current; but he has no right to change its course to the injury of his neighbor opposite. A gradual washing away is the loss, a gradual deposit is the gain, of one bounded on a stream; but if the stream, in time of flood, makes a short cut across lots, the result is not the taking of a farm from one man and giving it to an- other. He whose land has been cut in twain, although bounded on the stream, becomes an owner on both sides. In regard to surface water caused by rain, melting snow, and wet soU, the general doctrine appears to be that one may drain his land, may retain all the sur- face water upon it, or may raise the grade, although in the first instance the result may be to flood his LAND. 437 neighbor below ; in the second, to deprive him of nec- essary moisture; in the third, to make a pond on the land of his neighbor above. This rule, however, is repudiated in New Hampshire,^ and in some other states, the courts holding that a land-owner can change or stop the flow of surface water upon his land only so far as is consistent with a reasonable use of the same, and that what is a reasonable use is to be de- termined not only by his own interest and convenience, but also with some regard to the interest and conven- ience of adjoining land-owners. There is a similar conflict of authority in respect to water percolating through the soil. In many, prob- ably in a majority of the states, one may dig a well close to the edge of his own land, although the inevi- table consequence is to drain all the water from his neighbor's well. In other states the doctrine of rea- sonable use is applied. In one or two states courts have drawn the line at a malicious intent, thus tak- ing, it may be, a ground intermediate between the two leading theories. A distinction is frequently made between percolating water and underground streams, the latter, if they have well-defined channels, corre- sponding to ordinary brooks and rivulets. Water rights of all kinds are exceedingly fruitful subjects of litigation, and connected with them are many nice and interesting questions, which cannot be discussed here for want of space. In numberless ways, and constantly, questions are coming before courts as to how far one may use his land as he pleases without violating the rights of others. For example : A and B are rich men, owning ^ This qnestion has ag'ain been raised in New Hampshire, and is now (ISS?) pending before the Supreme Court of the state. 438 TALKS ABOUT LAW. costly mansions on a fashionable street. C owns an intervening lot. It is worth five thousand dollars; but C thinks he can make A and B pay twenty-five thousand for it. With this end irCview, he covers it with bill-boards and cheap tenement houses. In do- ing so he only exercises a legal right, and A and B must either make the best of it or pay an exorbitant price. But if C goes a little further and erects a soap factory, or lets houses for immoral purposes, he may be liable, both civilly and criminally, for keeping a nuisance. At common law every one is required to keep his own cattle at home, and no one is required to erect fences against his neighbor's cattle ; but in most states there are statutory provisions under which owners of improved land may be compelled to maintain division fences. If one accidentally and carelessly sets fire to an- other's house, he wiU be responsible for the loss ; but if he accidentally and carelessly sets fire to his own house, he will not be responsible for the destruction of other houses in the same confiagration. One has a right to burn brush, stumps, and the like on his own land, if it is a prudent thing to do under all the cir- cumstances of the case ; and, if he uses all due care, and the fire spreads without any fault on his part, he cannot be made to pay for the damage that it does to others. At common law, railway companies, if they take all reasonable precautions, are not responsible for fires caused by their locomotives; but, in many states, by statute, they are made responsible regard- less of care, and have an insurable interest in the property along the road. CHAPTER XXXVI. HEIES AT LAW. " It is an established rule of law that God alone can make an heir." In other words, an heir or heir at law is one who takes part or all of a deceased person's estate by right of blood, or would do so if there were no will. A legatee is not an heir ; he takes by gift. A widow is not an heir ; she takes by marriage. The person from whom an heir inherits is called his ancestor ; thus, technically, one's ancestor may be his own son. It is an ancient maxim that no one is heir to the living. One cannot be an heir until he inherits, or at least until the event occurs which would entitle him to inherit if there were no will. He may, however, be an heir apparent or an heir presumptive. An heir apparent is one who must inevitably be an heir if he survives his ancestor. The eldest son in England, any child in this country, is heir apparent to his father. An heir presumptive is one who must be an heir if he survives his ancestor, and no one is born having a nearer claim. The father of a childless man is his heir presumptive. The English policy under which land descends to the eldest male heir to the exclusion of all others is not favored here, and in aU of the states the distribution of the property of one who leaves no will is governed by statute law. Under such statute, subject to the 440 TALKS ABOUT LAW. rights of a widow or widower, such property goes to the children equally, and to descendants of deceased children, the latter taking what their parent would have taken had he or she lived. In a few states, how- ever, if aU of the children are dead, the property goes to the grandchildren per capita instead of per stirpes ; that is, if the intestate leaves no children, and leaves three grandchildren, one the issue of one child and the other two the issue of another child, the grand- children will take each a third, instead, as in most states, of the first taking half and the others a fourth each. If there are no descendants, the property goes to other relatives in their degree ; but the statutes vary so much, that no statement of general application can be given. If there is no widow or widower, and no kindred however remote can be found, the property goes to the state. In most states, relatives of the half blood inherit equally with those of the whole blood. If a father sets up a boy in business, or gives a girl a dowry, the amount, if such appears to have been the intention, will be regarded as an advancement to be deducted from the portion which such boy or girl would otherwise inherit ; but, if the advancement ex- ceeds the portion, the excess need not be refunded. In some states interest is cast on advancements ; in others only the principal is deducted. The common law upon this subject, founded on a statute of the time of Charles II. and on equitable principles, is varied more or less in most states bj' local legislation. In the settlement of estates where there is no will, land, unless needed to pay debts, goes directly to the heirs ; on the other hand, personal property goes to the administrator, is appraised, and, after paying all charges, is divided between the heirs, being in many cases first converted into money. CHAPTEE XXXVII. WILLS. A WILL is one's free, intelligent, and duly authenti- cated wish in regard to the disposition of his property after his death. The same principle applies to wills that applies to contracts ; they are not valid if procured by coercion or fraud, or if they are products of insane delusion. What amounts to coercion or undue influence de- pends greatly upon circumstances. Comparatively slight acts, even entreaties and complaints, may avoid a will, if they are sufficient to overcome and subdue the mind of one who is broken by disease, exhausted by pain, and anxious to die in peace. A chapter has been devoted to persons of unsound mind, and the subject will not be dwelt upon in this connection. Though any insane delusion may be evi- dence tending to prove general insanity, one may be insane in regard to many subjects and stiU be compe- tent to make a will if he is sane in regard to that subject, if he is mentally capable of understanding his affairs, and the claims of others upon his bounty. Gross injustice may be weighed, in connection with other circumstances, as evidence of insanity; but in- justice alone does not invalidate a will. Many men of the strongest and clearest minds make cruel wills, and the law gives them the right to do so. 442 TALKS ABOUT LAW. All ordinary will, to be duly authenticated, must be in writing. It must be signed by the testator. In New Hampshire it is void so far as it relates to land, if it is not under seal ; in other states a seal is custom- ary, but not indispensable. If a seal is not required, it is mere surplusage. It is not an inconvenient or a dangerous thing, as it sometimes is when improperly used in making a contract. A will must be attested by two, in some states by three disinterested witnesses. The witnesses must sign as such at the request of the testator and in his presence. As a matter of precau- tion, they should also sign in the presence of each other, that each may be a witness to all of the signa- tures. The usual attestation clause covers all of these formalities, and pointedly indicates what should be done : " Signed, sealed, published, and declared as and for his last wiU and testament by the said John Smith in the presence of us, who, at his request and in his presence and in the presence of each oliier, have hereto subscribed our names as witnesses." Although the law does not require it in more than one or two states, it is always well to have witnesses write their addresses opposite their names ; this is especially ad- visable in the execution of wills and for obvious rea- sons. It is not necessary that witnesses should hear a wiU read, or know what it contains. So far as a will relates to land, it must be executed in conformity with the law of the state where the land is. So far as it relates to personal property, it is sufficient if it con- forms to the law where the testator lived. While, in most states, a wiU is void so far as land is concerned, if it is not attested by two or more witnesses, one may be sufficient to prove it, and it is not customary to call them all unless a contest is expected. WILLS. 443 If one makes a will when he is fifty and dies when he is ninety, all of the witnesses may be dead ; if living it may be impossible to find them, and if found they can hardly be expected to remember the circumstances attending its execution. A will, therefore, proves it- seK after it is thirty years old, if it is valid upon its face, is found in proper hands and is free from sus- picious circumstances ; that is, it wUi be presumed that the signatures are genuine, and that the formalities of law were complied with until the contrary appears. The law is very particular in regard to the execu- tion of wills, because dying persons are necessarily more or less at the mercy of others, and because the temptation to undue influence, to forgery or to the de- struction of the instrument is often very great. The witnesses are placed around the testator, not merely to attest what he does, but also to note the condition of his mind, and whether he appears to be free from out- side influences. All of the formalities — the signing, the sealing, the acknowledgment, the number of the witnesses, and the inexorable rule that they must be disinterested — are for the protection of the testator, to enable him to dispose of his property as he pleases. The same policy that requires a substantial compliance with prescribed formalities in execution, admits of great latitude in the instrument itself. If the wishes of the testator are legal, they are to be regarded as " the pole star by which courts must steer." Tech- nical words are sometimes necessary in other instru- ments ; in wills never, if the meaning can be made plain without them. Thus, a title to land in fee sim- ple, as clear as if it were a title to personal property, may be given by will, without the use of the word " heirs," if other words are used showing that the in- 444 TALKS ABOUT LAW. tention was to confer, not a life estate, but absolute ownership. So, under statutes existing in the several states, a will may include real, as well as personal property, acquired after its execution, if such appears to have been the design of the testator. It formerly was the custom to begin a will with a more or less extended preamble, containing an invo- cation to the Deity, a confession of religious faith, an expression of hope for glorious immortality, a formal adieu to earthly things, an admission of bodily weak- ness, and an assertion of mental vigor. Many persons still follow this time-honored custom, supposing it to be necessary ; but such a preamble is as superfluous in a will as it would be in a promissory note, and it is safer, and perhaps in better taste, to omit it. Neither, in making a will, is it necessary to direct that debts, funeral expenses, and charges of admin- istration shall be paid ; the law does that. If one wishes costly obsequies, he should provide for them in his will. The implied authority of the executor to pay funeral charges and to erect a monument does not admit of lavish expenditures. A testator should nominate some one in whom he has confidence to act as his executor ; but, if he neg- lects to do so, the court will appoint one, and the validity of the will will not be .affected. A will, therefore, may be a very simple thing, and the simpler the better if it clearly states the testator's wishes. If a man writes, " I will one half of the property which I may own when I die to my wife, to her and to her heirs ; I wiU the other half to my only child, to him and his heirs," and signs it, seals it, acknowledges it, and causes it to be properly at- tested, he makes a will as strong as it could be if WILLS. 445 it covered reams of paper. A will may refer to only part of one's estate : " I want my nephew, John, to have my bank book," if duly signed, etc., is a good legacy of a bank account. Although wills may be the simplest of instruments, they are never-failing sources of litigation. They often divert the accumulations of a lifetime from the heirs at law, and jealousy, disappointment, and a sense of wrong, as well as the magnitude of the interests in- volved, invite a union of means and effort for a com- mon purpose. Even when it is conceded that the testator was of sound mind and was not unduly influenced, the interpretation of his will may raise nice and doubtful questions. Lawyers and judges, who would pronounce at once upon the construction of the same words in a deed, may hesitate when they find them in a will, for the latter may be so infor- mal and the law so favors carrying out the wishes of the testator, however expressed, that it is hardly pos- sible to apply technical rules. It is often a difficult thing to say just what one wants to say, neither more nor less, in language that cannot be misunder- stood ; and, in drawing a will, one who is not familiar with legal rules and principles, and with the precise meaning of technical phrases, is the more liable to err from his very caution, and the feeling that his task is an unwonted one. Generally speaking, therefore, it is the height of folly for one to write his own will, and this is especially true if his estate is large, and he wishes to tie it up or to devote it to specific purposes. This suggestion cannot be regarded as made in the interest of the profession, for where lawyers take Vs for making wills, they take C's for breaking them. 446 TALKS ABOUT LAW. The instrument itself is the proper evidence of what the testator intended to have done with his property, and, unless it is impeached for mistake or fraud, no oral testimony can be admitted to contradict its plain terms. But if a will is obscure or ambiguous, oral testimony is competent to explain it. Thus, if a man should leave " f 10,000 to Little Sunbeam," it would be proper to show that he was in the habit of so calling a favorite grandchild ; or, if he should give a legacy to John Smith, to show that he had a relative of that name who was the particular John Smith in- tended. WiUs written in lead pencil are not void on that account, although pencil marks are so easily tampered with that ink should be used if possible. A will may be executed on Sunday, as well as on a week-day. Although a very careless thing to do, a will may be written on several loose sheets of paper, the last only being signed and attested; and it is even held that two or more instruments may be construed as making one will, if such appears to have been the intention. An instrument in the form of a deed to take effect on the death of the grantor, and purporting to convey land for a valuable consideration, may operate as a will, if such was the intention of the maker. A codicil is an addition to a will. It must be ex- ecuted with the same formality as the will itself. It operates as a revocation of the latter so far, and so far only, as it is inconsistent therewith. It is contrary to public policy to allow property to be tied up forever. The general limit is a human life or lives in being, and not exceeding twenty-one years and nine months more. For example. An old man has a great-grandchild, a babe in arms. He leaves WILLS. 447 money in trust, to be kept at compound interest until the babe's death, and until its youngest decendant then born or conceived shall be twenty-one; or, to make it certain that the life during which the estate can be tied up will be a long one, he may, if he pleases, mention a hundred children of long-lived stock, extend the trust until the last survivor of them dies, and from then until his youngest descendant becomes of age. Corporations cannot take by wUl, unless authorized to do so by charter or by statute. This privilege is generally conferred upon muncipal and charitable cor- porations. While a corporation cannot take a legacy absolutely without express authority, it may act as trustee under a will for a charitable purpose, not in- consistent with its general duties. A will may be revoked by a new wiU, unless the one is intended to supplement the other ; it is the last will and testament, the latest duly attested wish, that the law respects. A will may be revoked by intentionally burning, cancelling, tearing, or obliterating it. This must be done either by the testator himself, or by some one acting in his presence and under his direction. If a will is accidentally or wrongfully destroyed, its valid- ity is not affected, and its contents may be proved by a copy or by the recollections of those who have read it. A wiU may be revoked by operation of law, that is, an uncontradicted presumption that the testator has changed his mind with a change of circumstances. This most frequently occurs where a single man makes a will and afterwards marries and has children. In three or four states an unattested will may be 448 TALKS ABOUT LAW. valid, at least so far as personal property is concerned, if it is wholly in the handwriting of the testator, and is signed and dated by him. The following is a specimen of these holographic wills : " Ann, don't worry yourself about this matter, as you see you are almost cut out on every side, by your father and your mother, but you have been a faithful daughter to me, and have obeyed me, and you have seen a great deal of trouble ; don't worry yourself, but take things easy and do the best you can for the present. I have prospered, and have accumulated a great . . . of money together, and I intend to do what I please with it ; and Ann, after my death you will have forty thousand dollars ; this you are to have, will or no wiU ; take care of this until my death ; Ann, keep this to yourself. J. Henry Hoppe." The above was written on the back of a business letter, and was held to be a valid will. Here is another, which was sustained, although much less formal : " Dear Old Nance : I wish to give you my watch, two shawls, and also f5,000. Your old friend, E. A. Gordon." In most or in all of the states, there are statutory provisions under which soldiers and sailors in actual service — sometimes other persons when at the point of death — may dispose of their property and effects, to a greater or less extent, by unwritten or nuncupar tive wills. Such wills, being peculiarly liable to fraud and perjury, must be reduced to writing and proved within a limited time. The rights of children not referred to in wills, and the rights of widows and widowers, have been spoken of in former chapters. CHAPTER XXXVIII. TORTS. ToETS form one of the great departments of the law, and the subject is too vast to be touched at more than a few points within the limits of this chapter. A tort is a wrong or an injury to an individual for which the law gives him a remedy. It is distinct from a mere breach of contract, such as a neglect or refusal to pay a debt, or to perform an agreement ; although it may be intimately connected with a contract, as where one man cheats another in a trade or obtains credit by false representations. It is also distinct from a crime ; although the same act may be and often is both a tort and a crime, that is, both a private and a public wrong, as where one man robs another. An action of tort is for the compensation of the individ- ual wronged, and is as much a private affair as if it were a suit for groceries sold and delivered ; while a criminal prosecution is a public affair, the chief object of which is the protection of the innocent by the pun- ishment of the guilty. The following are some of the more familiar ex- amples of torts : Trespasses to the person, such as an assault and battery, or an imprisonment or deten- tion upon a false and malicious charge, or upon void papers, or in excess of the authority given by valid papers, or in any other illegal way whether under the 29 450 TALKS ABOUT LAW. color of law or not ; trespasses to real estate, such as cutting trees beyond one's own line, either intention- ally or by mistake, or even (certain circumstances ex- cepted) setting foot upon a neighbor's land without his express or implied consent ; trespasses to per- sonal property, such as any wrongful meddling with it or taking it or keeping it even though the per. son doing so supposes that it is his own ; trespasses committed by servants acting under orders, both mas- ter and servant being liable ; trespasses committed by domestic animals; attacks upon one's reputation amounting to libel or slander ; enticing away one's wife or servant ; cheating in trade or obtaining goods, credit, or any other valuable thing by fraud ; infringe- ments of patents, copyrights, trade -marks, or fran- chises ; selling tainted meat or adulterated and un- wholesome provisions for human consumption; sell- ing dangerous drugs and poisons, with criminal intent or by mistake and carelessly, whereby the purchaser or a third person is injured ; selling a gun, having a fraudulently concealed defect, in consequence of which it bursts and injures the user ; gross and inexcusable ignorance, neglect, or misconduct on the part of a doc- tor, lawyer, or mechanic, whereby his employer suffers in body or estate ; maintaining a nuisance, such as a tannery, a hogsty, a foul or imperfectly constructed sewer or gas main, or the alternate draining and flood- ing of swamp lands, to the special injury or discom- fort of a particular person or persons ; injuries caused by defective sidewalks, highways, bridges, buildings, and machinery, by the negligence of workmen, by the careless use of fire, fire-arms, teams, locomotives, etc., etc. Substantially every injury of omission or com- mission for which the law gives a remedy, whether in- TORTS. 451 tentional or accidental, every invasion of a legal right, every private cause of complaint which is not a mere breach of contract, a mere non-payment of a debt, or non-performance of an agreement express or implied, is a tort. The two leading subdivisions of torts are trespass, and trespass on the case, or, as it is more briefly called, case. The former includes all unlawful acts committed directly and with violence to the person, property, or relative rights of another. The latter in- cludes injuries unaccompanied by force, or where the damages are only consequential ; in its broadest sense, it also includes assumpsit, which is an action of con- tract rather than of tort. These two leading subdivisions are still further divided according to the nature of the tort or the form of the remedy, the aggrieved party frequently having a choice of several remedies. Thus, to take a simple illustration, A cuts timber on B's land and carries it off. If he does this under a claim of ownership, B (1), in some states may bring a writ of entry, in other states, the form of action substituted by statute, to try the title ; or (2), whether ownership is claimed or not, he may bring an action of trespass quare clausum fregit, to recover damages for a theoretical breaking and entering, and an actual trespass; or (3), he may waive the breaking and entering of an imaginary waU, and bring an action of simple trespass ; or (4), he may waive the trespass and bring an action of trover for the value of the timber, alleging that A found it — a legal fiction — and wrongfully converted it to his own use ; or (5), he may bring an action of replevin for the timber itself ; or (6), he may waive the tort alto- gether, treat A as a purchaser, and sue him in assump- 452 TALKS ABOUT LAW. sit for the value of so much timber sold and delivered ; or (7), if A sells the timber, B may sue him in assumpsit for money had and received, and recover the full price, without being obliged to pay A any- thing — his acts being wrongful — for his labor and trouble in cutting, hauling, and selling the timber ; or (8), finally, B may bring a suit in equity, and have A, if he persists in his conduct, enjoined from further depredations. Either one of these eight methods of procedure — and several of them apply equally to third parties into whose hands the property may come — may be preferable according to the evidence, the circtmistances, and the object to be gained. The distinctions between the several forms of remedy for tort — and the same is true of actions of contract — are more or less technical, and can be of little interest to general readers, even where common-law forms of action have not been changed by statute. For these reasons, as well as from want of space, they wiU not be discussed here. A hasty glance at some of the principles applying to a few torts, such as libel, slander, seduction, nui- sance, and injuries caused by negligence, will occupy the remainder of this chapter, A libel may be both a private and a public wrong, a tort, and a petty crime, or misdemeanor. A private libel is a false and malicious publication, made in some permanent form, as by a writing or a picture, ac- cusing an individual of having committed a crime, or of having an infectious disease, that would exclude him from society, or holding him up to public hatred, scorn, ridicule, or contempt, or necessarily injuring his business or depreciating the value of his property, or inflicting upon him some actual pecuniary loss or a TOBTS. . 453 loss of marriage. Public libels also include blaspbe- mous and obscene works, contempts of court, libels upon governments, and libels upon the dead calculated to excite the indignation of surviving friends, and cause a breach of the peace. Slander differs from libel in being spoken instead of being written or printed. As it naturally has a more limited circulation, as its effects are less perma- nent, and as it implies less deliberation, it is not an indictable offence^, unless it is openly and publicly blasphemous or obscene, or amounts to a contempt of court, or to an attempt to excite insurrection, or to levy blackmail, or has some other ingredient distinguish- ing it from mere slander. Under ordinary circum- stances, therefore, it is only a tort or private wrong. Regarded as a tort, its definition is more restricted than that of libel, for it is not slander to falsely and maliciously hold another up to public hatred, scorn, ridicule, and contempt, unless criminal conduct, or an infectious disease, is charged, or unless the words used are calculated to, or do, inflict pecuniary injury or a loss of marriage. "The greater the truth the worse the libel" (be- cause the more likely to cause a breach of the peace or a public disturbance) was once a maxim of English law applied to criminal prosecutions ; or, stated more fairly perhaps, and less sensationally, the truth of the libel was no defence. This doctrine was followed in some of the United States and repudiated in others ; and now, by statute in England, and by statute or by constitutional provision in nearly all of the United States, the truth of a libel is either an absolute defence to a criminal prosecution, or a defence unless the, pub- lication is actually as well as theoretically malicious. 454 TALKS ABOUT LAW. The truth qi the accusation is and always has been an answer to a private suit for libel or slander, no matter how malicious it may be. There is an English decision in point, which affords a striking illustration of the fact that legal principles in their application may be as pitiless as the laws of nature. A noble- man seduced and ruined a young lady. She left her friends and acquaintances, went to a part of the king- dom where she was unknown, lived an exemplary life, became highly respected, and obtained lucrative em- ployment. The scoundrel found her out, and, to force her to renew her relations with him, orally published her story to the world, causing her to be dismissed from her position in disgrace. It was held that he was neither civilly nor criminally responsible. If a communication is false and is not privileged, as a rule the law will imply malice. Thus it is said that the publisher or the seller of a libellous book or newspaper is presumed, under ordinary circumstances, to know what it contains, whether he actually does know or not, and to intend the natural consequences of his own acts ; which legal fiction substantially amounts to this, that carelessness and ignorance will not excuse from responsibility for an injury. In some states, however, it is held that false and defamatory statements are not actionable, if they are published for a legitimate purpose, without actual malice, be- lieving and having good reason to believe that they are true. From the frequency of its application to a particular class of cases, this is sometimes called the doctrine of political libel. One may be guilty of libel or of slander without being the author of the defamatory words ; it is suffi- cient if he repeats what is said by others, and he may TORTS. 455 be liable for having assisted in the circulation of a story without having expressed any opinion that it is true. Whether words are libellous or slanderous depends, not so much upon their literal and grammatical mean- ing, as upon the sense in which they are and are in- tended to be understood. There is no substantial dif- ference between saying that a man is a horse thief, and saying that he is not a horse thief, if the latter statement is made iu such a connection and under such circumstances as to clearly indicate that it is ironical. The test is. How would the readers or hear- ers naturally understand the language ? how did the writer or speaker intend they should understand it ? A privileged communication or statement is one made under such circumstances that there is either no liability for libel or slander, or no liability without ex- press malice. Familiar instances of communications privileged in this sense are those between lawyer and client, between physician and patient, statements made by a witness in answer to questions, arguments of counsel, judicial opinions, verdicts, and findings of fact made by jurymen, parliamentary debates, reports of financial standing made at the request of those in- terested, and statements made under the like circum- stances in regard to the character and qualifications of servants. Generally speaking, so far as counsel, judges, members of Congress, and the like are con- cerned, the privilege is absolute. It is indispensable to the fearless administration of justice, and to the functions of government and of the law-making power in a free country, that those who have such matters in charge should have perfect liberty to express them- selves in the line of their duty without being harassed with private suits or with public prosecutions. The 456 TALKS ABOUT LAW. privilege is not usually absolute in regard to private matters ; but there is a wide difference between a wan- ton and indiscriminate circulation of scandal, and the confidential answering of questions asked by those who have substantial and legitimate interests in knowing the truth. Under such circumstances, therefore, if a banker reports a firm according to the best of his knowledge and information, if a lady gives a domes- tic such " a character " as she believes to be just, — the communication being made from a proper motive, without actual malice and not officiously or heed- lessly, — there will be no liability, even though it may be incorrect. One who entices a servant away, causing him to break his contract of service, or injures him so that he cannot perform it, is liable to the master for the dam- age resulting from the wrongful act. It is precisely on this sordid ground that the law gives a mau a right of action for the invasion of his home by a seducer. If the victim is his wife, he is deprived of her society, faith, and affection, and, in virtue of his marital rights, he may claim compensation for that without proving that he has been put to any expense, or has suffered any actual pecuniary loss ; but if the victim is a daughter he must base his claim for damages on the fact, not that he is her father, but that he is her mas- ter. He must show that she was more or less depend- ent upon him for support, and that the expense thereof was or must be increased by the wrongful act, or else that she was a member of his household, or other- wise rendered or was in a position to render him some service of which he has been or may be deprived. In this class of cases the law displays a commendable in- consistency, and is far more respectable in practice TORTS. 457 than in tteory ; for judges uniformly instruct juries that they may find a daughter, or other relative or inmate of the family treated as such, to be a servant upon evidence of the slightest service, and they also uniformly sustain verdicts for amounts far beyond the pecuniary loss or the pecuniary value of the service. In such cases the daughter, being a particeps criminis, can maintain no action, unless upon a breach of prom- ise of marriage, or upon statutory provisions to secure the support of the child. A nuisance, like a libel, may be both a public and a private wrong. If it affects the community in gen- eral, it is a public wrong, and indictable as a misde- meanor. If it affects certain persons only, it is merely a tort. In the broadest sense, " anything that worketh hurt, inconvenience, or damage," is a nuisance ; but the term is usually applied to acts inconsistent with good order, good morals, and decency ; acts affecting the health, comfort, or safety of the public or of individuals ; and acts prejudicial to the enjoyment of personal or prop- erty rights. But few examples of nuisances can be given, for their name is legion. A disorderly house, a place of rioting and drunkenness, a common brothel, is a public nuisance ; it is also a private nuisance, so far as those living in the immediate vicinity are concerned, for it is specially annoying and injurious to them, threaten- ing their security, disturbing their quiet, and depre- ciating the value of their property. Maintaining chem- ical works, a slaughter-house, or a powder-mUl in a populous locality, may be both a public and a private nuisance. The unnecessary obstruction of a highway is a public nuisance. The projection of one's eaves over another's land is a private nuisance. 458 TALKS ABOUT LAW. The remedy for a private nuisance may be abate- ment, an action on the case for damages, or proceed- ings in equity for an injunction. To abate a nuisance is to forcibly remove it without legal proceedings. The right to do this exists under a great variety of circumstances ; but it must be exercised without a breach of the peace, and with as little damage to prop- erty as is possible. To fully discuss the law pertaining to the almost in- finite variety of injuries caused by negligence would require volumes. All that can be done here is to re- fer to a few principles of general, though not of uni- versal, application. Under some circumstances, as we have seen in for- mer chapters, the law holds one responsible for the highest degree of care ; and under other circumstances it goes even further, and holds him responsible for losses, no matter how careful he may be. Such liabil- ity is founded upon special reasons and is exceptional. To maintain an ordinary action for negligence there must be : (1) an injury to person, property, or rights ; (2) the injury must be directly attributable to a want of average care on the part of the defendant, or of his servants or agents acting in the line of their duty ; (3) it must not be attributable, at least in any sub- stantial degree, to a want of average care on the part of the plaintiff, or of his servants or agents acting as such. More briefly, if less accurately, the defendant must be in fault and the plaintiff must be free from fault. If one is injured by the negligence or other wrong- ful act of two or more persons, he may sue the one that can be reached most easily, or is most likely to be frightened into a good settlement, or is most able to TORTS. 459 pay ; or he may sue two or all of them jointly, for they are jointly and severally liable. As between them- selves, however, they are not like persons jointly and severally liable on a note or other contract ; whoever has to pay can ask no assistance from the others, for it is a general maxim of law that " there is no contri- bution among wrong-doers." No suit at law can be maintained unless the cause of action exists at the time of the making of the writ ; that is, unless the debt is then due, or the agreement has then been broken, or the tort has then been com- mitted. If the tort is of a continuing nature, such as the maintenance of a nuisance, the plaintifE may re- cover damages up to the time of the bringing of his suit, and, if the nuisance is persisted in, may bring subsequent suits for subsequent damages until it is re- moved ; but where the tort is not of a continuing nar ture, where it is a single act or omission, as where a passenger suffers by the negligence of a railroad en- gineer, he can bring only one action, for the wrong has already been wholly inflicted, and the damages re- covered will be intended as compensation for all its direct, natural, and probable consequences, past, pres- ent, and future. In cases of injury to the person, and in many other cases where the law recognizes an ac- tionable wrong, damages are not limited to the pecu- niary loss. The aggrieved party, if entitled to recover anything, is entitled to recover compensation: (1) for loss of time and labor, the amount of course depend- ing upon his capacity for earning money and the na- ture, extent, and probable duration of his disability ; (2) for the expense to which he has been and proba- bly will be subject for care, nursing, and medical at- tenda^jee ; (3) for his physical suffering; (4) for his 460 TALKS ABOUT LAW. mental suffering, and for the pleasures and enjoyments of which he has been and naturally vfiSl be deprived. In cases of intentional and aggravated wrong, juries are frequently permitted to give what are called ex- emplary, vindictive, or punitive damages, that is, some- thing beyond mere compensation, as a punishment to the wrong-doer. This custom has the sanction of a long line of eminent judges and writers, and on the other hand, its soundness as law — except in seduction cases, where it has become inveterate — is denied by authori- ties at least equally numerous and equally eminent. If " reason is the life of law," the latter doctrine seems to be the true one. The object of a private suit is com- pensation to the individual ; and, as many torts for which exemplary damages are given are also public wi'ongs, if the private suit is regarded as a means of punishment the defendant may be punished twice for the same offence. The question, though important, is not always as important as it seems to be. If A in- tentionally and without provocation spits in B's face, it may be of little consequence, so far as the amount of the verdict is concerned, whether the jury are in- structed that they may give B such a sum as will be full compensation for the great indignity put upon him, or that they may give such a sum as A ought to pay for such a wanton and deadly insult, and as B, all things considered, ought to have. By the common law, if one dies while an action for personal injuries is pending, it dies with him. To rem- edy this injustice, the legislatures of all or of nearly all of the states have passed statutes under which such actions may survive, and in many states a suit may be begun even after the death of the injured person. If the suit is begun before he dies, and the statute merely TORTS. 461 gives the right of survivorship, the rule of damages is the same as if he had lived, that is, compensation for his loss of time, his expenses, and his sufferings ; but in regard to suits begun after the death of the in- jured person the statutes vary greatly. In some states the damages can go only to certain persons, as the widovr and children ; are fixed within certain limits, as not less than five hundred and not more than five thousand dollars, where the death is caused by the injury ; and may or may not be restricted, to certain cases, as where one is killed by the negligence of a railway corporation. In other states the rule of dam- ages is compensation for the pecuniary loss of the widow and children in being deprived of their means of support. In still other states it is the rule of the common law, compensation for disability, expense, and snffering from the time of the injury to its fatal termi- nation. Under the latter rule it is evident that only nominal damages can be recovered in case of instant death, and an individual or a corporation whose negli- gence causes a fatal injury may escape more cheaply than if it had only caused the loss of a finger. CHAPTEK XXXIX. TREASON. Criminal law, although a very important branch of jurisprudence, is far more simple, both in its principles and in its details, than the vast and complicated system by which the personal and property rights of individ- uals are governed in highly civilized communities. A criminal offence is an act committed or omitted in violation of public law, either forbidding or command- ing it. It is prosecuted in the name of the state, as an act against the peace and dignity of the state ; al- though it may be, and often is, a private injury also, for which the person injured has a remedy by civil suit. Offences at common law are divided into treasons, felonies, and misdemeanors. The word " treason" signifies treachery, or a betrayal of faith. By the ancient common law, high treason, treason against the sovereign or state, had a very in- definite meaning, being open to such construction as judges dependent upon royal favor might put upon it. In the reign of Edward III. (a. d. 1352) treason was limited by statute to — 1. Compassing or imagining (seeking) the death of the king, his queen, or his eldest son and heir. This section, it was held, included the compassing or imag- ining the wounding, imprisonment, restraint, or dep- osition of the king; for, as Blackstone says, "there TREASON. 463 is generally but a sliort interval between the prisons and tbe graves of princes." Mere unwritten words never amounted to treason, although in the reign of Edward IV. two subjects were judicially murdered as traitors, the one for an idle pun ; the other, whose favorite buck the king had killed while hunting, for saying that " he wished it horns and all in the belly of him who counselled the king to kill it, and, as the king killed it of his own accord, or was his own coun- sellor, it was held to be a treasonable wish against the king himself." In the latter case the chief justice re- signed rather than assent to a judgment so unjust and tyrannical. Under this section of the statute, the better opinion seems to be that "words alone cannot amount to an overt act of treason ; but if they are attended or followed by a consultation, meeting, or any act, then they wiU be evidence of a confession of the intent of such consultation, meeting, or act." 2. Unlawful sexual intercourse with the king's wife, his eldest daughter, or the wife of his eldest son and heir, by which succession to the throne may be en- dangered. (Soon after the accession of Queen Victoria it was also made high treason for one to be concerned in bringing about the marriage of the king or queen, he or she being under eighteen years of age, for whom a regent is appointed.) 3. Levying war against the king. By " the king " is intended the reigning sovereign, the existing govern- ment, the organized authority of the state for the time being. There can be no treason to a dethroned king, a defunct government, a mere claim of authority with- out the means of enforcing it. With few exceptions, governments originate in force, and, when they prove their ability to maintain themselves by the same means 464 TALKS ABOUT LAW. the world recognizes them as legal. Their title to power is the possession of power. No government, least of all that of an usurper, will permit those who live under it to defy it; and if, when it succumbs to its rival, a subject or a citizen could rightfully be hung for obedience to a power that would have hung him had he not obeyed, most men, in a case of disputed succession, would be liable to be executed as traitors. Obedience to a government de facto, therefore, is not treasonable, even if it is carried to the extent of bearing arms for an usurper against what, had it the power to govern, would be a government de jure. This rule prevails generally among civilized nations, and, although it scarcely extends to cases where both factions claim to be the established government, it does much to miti- gate the horrors of civil war. Under the head of levying war against the king, the government, the organized authority of the state, it may be in place to say a few words concerning the right of revolution. This right is best stated in our Declaration of Independence : " We hold these truths to be self-evident, that all men are created equal ; that they are endowed by their Creator with certain inalienable rights ; that among these are life, liberty, and the pursuit of happiness ; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government be- comes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and hap- piness. Prudence, indeed, will dictate that govern- TREASON. 465 ments should not be changed for light and transient causes ; and, accordingly, aU experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they have been accustomed. But when a long train of abuses and usurpations, pursu^ ing invariably the same object, evinces a design to re-, duce them under absolute despotism, it is their right, it is their duty, to throw o£E such government and tq provide new guards for their security." These doc- trines were proclaimed as self-evident truths. They were not new ; they had been more or less clearly rec-. ognized in every revolt against despotism since time began; they had been repeatedly enforced by the English people themselves, especially in the thirteenth century against King John, and in the seventeenth against the Stuarts. They declare, however, a moral rather than a legal right; for, while all governments may admit the right of revolt in the abstract, no gov- ernment can admit it as against itseK, when rebels are in arms to destroy it, without ceasing to be a govern- ment. If the government is wise and just, revolt, judged by its consequences, is the blackest of crimes, for, without excuse, it endangers the lives, liberties, and fortunes of countless innocent people. If it is unwise and tyrannical, the administration of the law being one of its functions, it certainly will not, through its courts, voluntarily admit that it has forfeited its right to exist. Armed rebellion, while it may some- times be a patriotic duty, if it is unsuccessful is always in law treason. It can, therefore, be rightfully under- taken only when the government is bad, and, even then, only when there is a reasonable prospect of es- tablishing a better one ; for, although it may spring 30 466 TALKS ABOUT LAW. from noble and generous impulses, it is in effect a crime against humanity to attempt that which must\ inevitably fail, and bring desolation and despair upon a people already sufficiently wretched. 4. Adhering to the king's enemies, giving them aid and comfort. By " the king's enemies" is intended a foreign and hostile power, not subjects or citizens en- gaged in armed rebellion. Subjects or citizens, how- ever rebellious, are subjects or citizens still; to con- sider them legally as enemies would be to concede to them belligerent rights, to recognize their independence, to waive the right to punish them for rebellion. This distinction has been repeatedly declared by English courts and by the Supreme Court of the United States ; it also existed in the Roman, and still exists in the German Empire. It is a humane as well as a spund distinction ; for to hold that all who actively sympathize with rebellion are guilty of high treason might, in the passions excited by civil war, lead to wholesale proscrip- tion, and even to the punishment of entire communities. 5. Counterfeiting the king's seal. 6. Counterfeiting the king's money; that is, the gold and silver coin of the realm. This offence was reduced to the grade of felony, to which it would seem to properly belong, in 1861. 7. Slaying the chancellor, treasurer, or judges of the king's courts while in the performance of their official duties. This statute of Edward III., often stretched to the utmost extent in favor of royal authority and against the life or liberty of the subject, has continued in force, so far as the offences therein described are con-; eerned, with slight modifications, and subject to the change making counterfeiting a felony only, to the TREASON. 467 present time, a period of more than five hundred and thirty years. Its comparative justice and moderation, however, were not in accord with the bloody spirit of later times ; and, especially in the reigns of Richard II., Henry IV., Henry VIII., Mary, Elizabeth, the Stuarts, Anne, and George III., " the spirit of invent- ing new and strange treasons was revived, so that no man knew how he ought to behave himself, to do, speak, or say, for doubt of such pain of treason." The reign of Henry VIII., in particular, was distinguished for legislative and judicial bloodshed, and it was, per- haps, difficult to name an act offensive to the king that was not liable to be declared high treason. From the time of the Reformation onward, as long as Catho- lics and Protestants made Europe their battle ground, and even after religious wars had ceased, Protestant governments regarded their Catholic subjects, and Catholic governments regarded their Protestant sub- jects, not only as heretics, but also — and often with good cause — as disloyal. Partly on account of relig- ious bigotry, but still more, probably, because it was considered necessary for self-protection, in the reign of Elizabeth it was made high treason for any Roman Catholic priest of English birth to remain in the kingdom, or to return from a foreign country unless driven upon the coast by stress of weather : in the same reign allegiance to the Pope was made high treason, for the second offence ; in the following reign, for the first offence ; and, although Roman Catholicism was not held treasonable during all that time, it remained under the heavy ban of the law un- til 1829. In the reigns of Queen Elizabeth and Queen Anne, the writing or printing of any book, pamphlet, or article derogatory to the title and dignity of the 468 TALKS ABOUT LAW. crown, was declared to be high treason ; and in the reign of George III., during the excitement occasioned by the French Revolution, a vigorous attempt was made to enforce measures scarcely less extreme. Thus, in England, the most diverse acts, from assassi- nating the sovereign to counterfeiting a shilling, from levying war on the government to criticising its meas- ures in a public newspaper, from the Gunpowder Plot to worshipping God according to the ritual of the Roman Catholic Church, have at different times beeq declared high treason. Even as conservative a mail as Blackstone, who, in his time, considered English law and English government wellnigh perfect, con- demns " affixing the same ideas of guilt " to things so unlike as both cruel and impolitic, and says it " takes o£E from that horror which ought to attend the very mention of the crime of high treason, and makes it more familiar to the subject." The punishment for high treason in England, untU ■within the memory of living men, is stated by Black- stone as follows : " 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 th^ offender from the extreme torment of being dragged on the ground or pavement. That he be hanged by the neck, and then cut down alive. That his entrails be taken out and burned while he is yet alive. That his head be cut off. That his body be divided into four parts. That his head and quarters be at the king's disposal." Women were not punished in this Way. On account of " the decency due to their sex," they were burned alive. Noblemen were usually be- headed without other mutilation or indignity. Trear TREASON. 469 sons connected with the coinage were punished by simple hanging. Of course treason as well as felony- occasioned a forfeiture of lands and goods, until for- feitures for crime were abolished. At the present time, the penalty of treason, in England, as it is nom- inally in this country, is hanging ; but since the wars of the French Revolution the English government has had little to fear from conspiracies, and, while prose- cutions for political murders in Ireland have been frequent, prosecutions for treason have been rare. There was formerly in England a species of treason known as petit treason, which has never been distin- guished in this country from simple murder. It con- sisted in the murder of a husband by his wife, a lord by his vassal, a bishop or other church dignitary by his subordinate, or a master by his servant. The pe- culiar atrocity of the offence was supposed to be the treachery of an inferior to a superior ; thus, if a wife murdered her husband she was burned alive, while if a husband murdered his wife he was only hanged. We have had no far-fetched and arbitrary treasons in this country. We have laws by which sedition and other disloyal acts not amounting to treason may be punished by fine and imprisonment, but even during the civil war they were seldom resorted to. In regard to treason itself, our national Constitution — and sim- ilar provisions exist in the several states — is ex- plicit : " Treason against the United States shall consist only in levying war against them, or in adher- ing 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. The Congress shall have power to declare the punishment of treason, but no 470 TALKS ABOUT LAW. attainder of treason shall work corruption of blood or forfeiture except during the life of the person at- tainted." In regard to what is levying war, within the mean- ing of the Constitution, the following from an opinion delivered by Chief Justice Chase may be in point, al- though it has been questioned in some respects by one of the most eminent writers on criminal law : " It is the opinion of the court that any insurrection or rising of any body of people within the United States, to attain or effect by force or violence any object of a great public nature, or of public and general (or na- tional) concern, is a levying of war against the United States within the contemplation and construction of the Constitution. On this general position the court are of the opinion that any such insurrection or rising to resist, or to prevent by force or violence, the execu- tion of any statute of the United States, for levying or collecting taxes, duties, imposts, or excises, or for calling forth the militia to execute the laws of the Union, or for any other object of a general nature or national concern, under any pretence, as that the stat- ute was unjust, burdensome, oppressive, or unconsti- tutional, is a levying war against the United States within the contemplation and construction of the Con- stitution. The reason for this opinion is, that an in- surrection to resist or prevent by force the execution of any statute of the United States has a direct ten- dency to dissolve all the bands of society, to destroy all order and all laws, and also all security for the lives, liberties, and property of the citizens of the United States. The court are of the opinion that military weapons (as guns and swords, mentioned in the indictment) are not necessary to make such TREASON. 471 insurrection or rising amount to a levying war, be- cause numbers may supply the want of weapons, and other instruments may effect the intended mis- chief. The legal guilt of levying war may be in- curred without the use of military weapons or military array. The court are of the opinion that the assem- bling of bodies of men, armed and arrayed in a war- like manner, for purposes only of a private nature, is not treason, although the judges or other peace offi- cers should be insulted or resisted, or even great out- rages committed to the persons or property of our citizens. The true criterion whether acts committed are treason or a less offence (as a riot) is the quo animo, or the intention, with which the people did assemble. When the intention is universal or gen- eral, as to effect some object of a general public na- ture, it will be treason, and cannot be considered, construed, or reduced to a riot. The commission of any number of felonies, riots, or other misdemeanors, cannot alter their nature so as to make them amount to treason ; and on the other hand, if the intention and acts combined amount to a treason, they cannot be sunk down to a felony or riot. The intention with which any acts (as felonies, the destruction of property, or the like) are done will show to what class of crimes the case belongs." Prosecutions for treason have been exceedingly rare in this country, the most noted instances being, under state law, that of John Brown ; under national law, that of Aaron Burr. In time of need the loyal mil- lions gave their blood and treasure like water to sup- press the most gigantic of rebellions, and, when the sword was sheathed in victory, no scaffolds were erected. This fact is without a parallel in history. CHAPTER XL. OFFENCES AGAINST THE PERSON. Blackstone defines felony as " 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." The word is of feudal origin, and originally signified a forfeiture or escheat. In Black- stone's time the word was commonly, though perhaps not accurately, applied to all offences, except treason, the punishment of which was death, and at the pres- ent time it is generally applied to all high crimes, except treason, whether punishable with death or not. The term misdemeanor is applied to offences of a trivial character, and is generally used in contradis- tinction to felony. A few pages will be devoted to some of the more important, and to some of the more common crimes and misdemeanors, and first in order comes felonious homicide, or the unlawful taking of human life. Homicide may be either justifiable, excusable, or fe- lonious. It is justifiable if untainted by negligence and ab- solutely free from fault ; and excusable if so nearly free from fault that, whatever other consequences may attend it, it cannot be punished as a crime. In a OFFENCES AGAINST THE PERSON. 473 civil suit the distinction may sometimes be important ; for the purposes of criminal law it is immaterial. The following are examples of homicides that can- not be punished as crimes : When one necessarily kills another in defence of himself, his family, or his home ; when committed in attempting to prevent a forcible and atrocious crime ; when an officer in the performance of his duty (or, in some cases, a private person lawfully attempting the arrest of one guilty of felony), being resisted, necessarily kiUs the person who resists him ; when a convicted felon escapes, and makes such resistance that he cannot otherwise be taken ; when the proper officer, in the strict perform- ance of his official duty, executes a condemned crim- inal ; when a soldier kills a public enemy or an armed rebel in lawful battle ; when, in cases of childbirth, it is necessary to destroy the child to save the life of the mother ; when one, doing a lawful act, kills another by accident, without evil intent or criminal negligence ; and, under some circumstances, when it is necessary to preserve one's own life, even though the life taken is that of an innocent person, — as where two ship- wrecked persons cling to a plank that will nc^t sustain both, and one pushes the other off whereby he is drowned ; but it has been held that this doctrine does not apply in favor of seamen as against passen- gers, the latter being entitled to the first chance, neither does it apply where one, though reluctantly, takes the life of an innocent person in consequence of the criminal threats of others in whose power he is, and which it might be fatal for him to disregard. In 1885 it was held in England, Lord Chief Justice Coleridge delivering the opinion of the court, that shipwrecked and starving men, who saved their own 474 TALKS ABOUT LAW. lives by killing and eating a comrade, were guilty of murder. The sentence of death was commuted to im- prisonment for six months. The right to take human life in self-defence, in de- fence of the family, and in defence of the home, is a subject too interesting and too important to be dis- missed without a few words in regard to the circum- stances under which it may exist, and the extent to which it may be carried. A man may not lawfully kiU another in self-defence, unless there is great and present danger of life or limb, or serious bodily injury ; and not even then if less extreme measures will suffice, or (according to the text-books, the old cases, and, probably, a vast majority of the recent ones), to use a legal phrase, if he can " retreat to the wall," that is, if he can run away. In some sections of this country, however, courts have shown great reluctance to declare it crim- inal to resist an unprovoked and dangerous assault by all necessary means rather than take to flight ; and in Kentucky, as it would seem, the doctrine of retreating to the wall has been substantially repudiated. Indeed, in that state, judicial decisions have gone to the ex- treme length of declaring that, if Smith believes and has good reason to believe that Jones intends to shoot him at sight, he. Smith, if they afterwards acciden- tally meet, has a right to shoot Jones first, without waiting to be himself attacked.^ It might be an in- teresting question how far such decisions are the fruit of, or are responsible for, the vendetta which prevails and is tolerated by public sentiment in Kentucky, probably to a greater extent than in any other of the United States. 1 Phillips V. Commonwealth, 2 Ehivall, 331 ; Carico v. Commomvealth, 7 Bush, 124 ; Bohannon v. Commonwealth, 3 Bush, 481. OFFENCES AGAINST THE PERSON. 475 Homicide in defence of one's family is justifiable or excusable wbenever, under like circumstances, it would be justifiable or excusable in self-defence. Under our law tbe bome is invested with peculiar sanctity. So long as no one but tbe lawful occupant and bis family makes it a place of refuge, no stranger can legally enter unbidden, not even a sberiff in tbe performance of his duty, if tbe doors are fastened, ex- cept to arrest a criminal or to serve criminal process. It bas been said : " A man's bouse is his castle ; it may be poor and bumble ; tbe wind, tbe rain, and the snow may enter it ; but tbe king cannot enter it." " So highly," says Wharton, "does the English common law cherish tbe sanctity of the dwelling-house, that it has been said that a man is justified by that law in opposing even to death those seeking to break into it. When in bis house, tbe owner is at bay ; he is called upon to retreat no further ; and in this, his castle, he may use violence, even to the extent of slaying his assailant, to resist an illegal entrance." Tbe above statement, however, taken by itself without qualifica- tion, would convey an exaggerated idea of tbe right to defend one's home, and, pushed to its logical ex- treme, would justify or excuse shooting a pertinacious pedlar or creditor, if he could be kept out of the house in no other way, a conclusion, not only illegal, but manifestly unreasonable, and inconsistent with any just conception of the sacredness of human life. WbUe expressions used, perhaps carelessly, by several very eminent judges and legal authors, may afford some countenance to a looser doctrine, the rule un- doubtedly is, that one may protect his home from il- legal intrusion by the use of such force as is reason- able under the circumstances, but not to the extent of 476 TALKS ABOUT LAW. taking life, unless lie has reason to believe that en- trance is sought for the purpose of committing crime.^ In the middle ages, the feudal nobility claimed and exercised the privilege of waging private war, until governments were strong enough to hold them in check. In those lawless times the houses of landed proprietors were necessarily fortified strongholds, and, having little protection from courts powerless to make themselves respected, their owners were frequently compelled to defend their rights with their own good swords. From this state of things arose the maxim, " Every man's house is his castle." This maxim is law now in the same way, and to the same extent, that it was five hundred years ago. It justifies a man in taking human life, if necessary to protect his home from acts of lawless violence and outrage, but not to protect it from mere impertinent intrusion ; and the spirit of modern civilization, and the regular and or- derly administration of justice which characterizes it, would be against any extension of the rule. Felonious homicide may be either manslaughter or murder. Manslaughter is the unlawful and felonious killing of another without malice aforethought either express or implied. It may be involuntary, happening in the commis- sion of an unlawful act not amounting to felony, as, for example, if a man in shooting at a trespassing cow should accidentally kill the owner, or if a pugilist en- gaged in a prize fight prohibited by law should acci- dentally kill his opponent ; or in the commission of a ' Blaokstone's Commentaries, bookiv. p. 181 ; Broom's Legal Max- ims. 432 ; Hale's Pleas of the Crown, i. 484 ; Bex v. Scully, 1 C. & P. 319 ; 12 E. C. L. E. OFFENCES AGAINST THE PERSON. 477 lawful act performed in an unlawful or in a criminally negligent manner, as where an ignorant and preten- tious quack kUls a patient by improper treatment, or where a railroad collision is caused by the gross care- lessness of an engineer or switchman. Manslaughter may be voluntary, as where one is kiUed in the heat of anger, upon the spur of the moment and upon great and sudden provocation, or in a sudden quarrel or fight, there being no previous malice ; for " the law pays that regard to human frailty as not to put a hasty and a deliberate act on the same footing with regard to guilt." In a word, whenever one person kills another, whether voluntarily or involuntarily, without malice aforethought, but under such circumstances that the act can neither be justified nor excused, it is manslaughter. Without stopping to illustrate the subject, it is easy to see that manslaughter covers a wide zone : on the one hand involving but little guilt and closely border- ing on excusable homicide ; and on the other, border- ing as closely upon the highest of all felonies, murder. It is murder " when a person of sound memory and discretion unlawfully kiUeth any reasonable creature in being and under the king's peace with malice afore- thought either express or implied." This is Lord Coke's definition of murder at common law. It is the foundation of most of the statutory definitions, and it is probably as clear and precise as any that can be given. Murder, like crimes in general, can be committed only by " a person of sound memory and discretion." As has been before stated, a child under seven years of age is incapable of crime, and a child under four- teen years of age is presumed incapable of crime, un- less it appears that his mind is mature enough to dis- 478 TALKS ABOUT LAW. tinguish right from wroug. So an insane person or an idiot is not of sound memory and discretion. What the law recognizes as insanity and idiocy has been considered elsewhere. A person "unlawfully killeth" another who does any unlawful act the natural and probable consequence of which is death, and from which the person injured dies within a year and a day. Any such act which directly causes the death, and without which it would not have occurred, is an unlawful killing, even though other agencies may contribute to the same result. Thus, if one man poisons another, his guilt is not ex- tenuated by the fact that life might have been saved by the application of proper remedies. So it is no de- fence to a charge of murder that the immediate cause of death was a fever brought on by the wound, or a surgical operation, if the wound rendered it necessary in the opinion of competent surgeons, and it was per- formed in a proper manner. Had President Gar- fielel's wound been of such a nature that his life might have been saved by different treatment, it would have furnished no defence to the assassin, provided the wound, rather than malpractice, was the cause of death. Neither does it lessen the crime that the vic- tim was a condemned criminal about to be executed ; or that he was suffering from a mortal disease of which he must soon have died ; or that the means used were not such as would ordinarily be dangerous, provided, of course, that the person using them knew of the peculiar circumstances which made them so. Where a seaman, in a state of great debility and ex- haustion, is compelled to go aloft by moral or physical force persisted in with a knowledge of his. condition and with brutal malignity, and in consequence he falls OFFENCES AGAINST THE PERSON. 479 from the mast and is drowned, such conduct on the part of the master of the vessel is murder ; if there is no actual malice it is manslaughter. So it is murder to wilfully abandon a helpless babe in an unfrequented place, where it is not likely to be found, and in conse- quence of which it perishes ; but to leave it at the door of a house where it is not likely to perish, although it does perish before it is discovered, is manslaughter only. By " a reasonable creature in being " is intended a human being fully born. It is not murder at common law (although a highly penal ofEence) to kill a babe before it is fuUy born into the world and has an exist- ence and circulation independent of its mother ; but, if it is born alive, and afterwards dies in consequence of criminal injuries inflicted before birth, it is murder. Every person within the jurisdiction of the govern- ment is " under the king's peace," except alien ene- mies in time of war, and the tendency of modern in- ternational law is to protect aU but actual combatants, soldiers in arms. The essence of murder, the real distinction between murder and manslaughter, is expressed in the words, " with malice aforethought either express or implied." " Malice aforethought," says Blackstone, " is not so properly spite or malevolence to the deceased in par- ticular, as any evil design in general, the dictate of a wicked, depraved, and malignant heart." It is eaj- press malice " where one with a sedate, deliberate mind and formed design doth kill another." Although it may not have been deliberately planned beforehand, and although death may not have been intended, it may still be murder by express malice if serious bodily injury to the deceased was intended, and the act was 480 TALKS ABOUT LAW. such that it could spring only from " a wicked, de- praved, and malignant heart ; " as where a man caught a boy stealing wood and tied him to the tail of a horse, whereby he was dragged and kicked to death. Malice may be implied although none existed against the deceased in particular. If a man shoots at one person and kUls another, or prepares poison for one and it is taken by another, the law implies malice against the real (although he is not the intended) victim of the murderous act. The rule is the same if one shoots at random into a crowd, not knowing and not caring whom he kills. As involuntary homicide is manslaughter if it occurs in the commission of an unlawful act or a misdemeanor, so it is murder if it occurs in the commission of a felony. If a man, for example, in attempting robbery, rape, arson, or any similar crime, undesignedly kills another, even though he is an accomplice, it is murder. The law implies malice from the wickedness of the act, and holds the offender responsible for all the consequences to which it in fact leads. However it may have been regarded by public sen- timent and however it may differ from other forms of murder in moral turpitude,^ homicide committed in a ^ Like all false codes which have for a time been accepted by up- right and honorable men, the so-called " code of honor " had in its day not a justification, perhaps, but the semblance of an excuse. It caused far less misery and "waste of life than the private wars by which the differences of persons of high degree were usually settled in the feudal ages, it was the natural offspring of judicial trial by battle, and was incidental to the transition period between the reign of force and the reign of law. There have probably been few com- munities in which the professional duellist has not been regarded with aversion and horror ; but in times when the law afforded scant protec- tion to domestic honor, and avowed libertines could be held in check only by the dread of death, or the social infamy incident to declining OFFENCES AGAINST THE PERSON. 481 deliberate duel, (other than the judicial combat now obsolete), even though the duel is conducted fairly, and according to the strict rules of the code, is legally murder of the same grade as midnight assassination. a challenge which they had invited, the dishonored husband or fa- ther, who risked his own life in equal combat, could not for a moment be classed morally with a cowardly assassin who in cold blood and for mere money strikes down his unarmed, unsuspecting, and unhated tIo- tim. As to political duels, bad as they were, they were a less objec- tionable means of disposing of rivals than the system by which court favorites were able to have them imprisoned and slain upon frivolous charges — a system which continued long after private wars had ceased ; and it may be questioned whether they were much worse — and they were far less mean and contemptible — than the deliberate assassination of private reputation sometimes practised in political contests now. Certainly they had a tendency to prevent the latter evil, for a liar is generally a physical as well as a moral coward. The barbarity and wickedness of the code was little recognized in the North until after the death of Hamilton, or in the South until the changes brought by the civil war. Many, not only of the ablest, but also the purest and most honored of the statesmen of the first half century of the Republic, had been engaged in ' ' affairs of honor, ' ' and, while offences should be judged by the clearest light and the highest morals of the present, offenders should be judged by the light and the morals of the times in which they acted. The following remark- able extract from a charge delivered by an English judge in 1794, shows how even courts of justice were influenced by the sentiments then prevailing on this subject ; " The oath by which I am bound obliges me to say that homicide, after due interval of consideration, amounts to murder. The laws of England, in their utmost lenity and allowance for human frailty, extend their compassion only to sudden and momentary frays ; and then, if the blood has not had time to cool or the reason to return, the result is termed manslaughter. Such is the law of the land, which undoubtedly the unfortunate gentleman at the bar has violated, though he has acted in conformity to the laws of honor. His whole demeanor in the duel, according to the witness whom you are most to believe. Colonel Stanwid, was that of perfect honor and perfect humanity. Such is the law, and such are the facts. If you cannot reconcile the latter to your conscience, yon must return a verdict of guilty. But if the contrary, though the acquittal may trench on the rigid rules of law, yet the verdict will be lovely both in the sight of Qod^and man." 31 482 TALKS ABOUT LAW. Among the ancient Romans, especially among the Stoics, suicide was regarded as an honorable means of escaping misfortune, and, under some circumstances, even as a duty. Under our law it is murder, and whoever aids or counsels another in the commission of suicide is guilty of murder either as a principal or as an accessary before the fact, and so it has been held even where the deceased was under sentence of death, and was to have been executed in a few hours. For- merly, suicides were denied Christian sepulture, and were buried at the cross roads with stakes driven through their bodies ; but such indignities to the re- mains of those who have taken themselves beyond the jurisdiction of human law would not now be tolerated, and, while there is no tendency on the part of the public to regard suicide from the Roman stand-point, there is perhaps a tendency to regard it as an act of insaue rashness rather than as an atrocious crime. In treason, the highest, and misdemeanors, the most trivial, of criminal offences, there can be no accessa- ries ; but one may be guilty of murder or of any other felony either as a principal or as an accessary. A principal in the first degree is one who alone or with others actually commits the crime. A principal in the second degree is one who does not with his own hands commit the crime, but is present aiding and abetting in its commission. Presence may be constructive, not actual ; thus an accomplice stationed at a distance for the purpose of assisting, if necessary, in a murder by intercepting the flight of the intended victim, or by giving warning in case of interruption or discovery, is, legally speaking, present, and is a principal in the sec- ond degree. An accessary before the fact is one who, not being actually or constructively present, by money, OFFENCES AGAINST THE PERSON. 483 or otherwise induces another to commit a crime, or plans what another executes. Of course there cannot be an accessary unless there is a principal ; and where a man commits a crime through the agency of an irre- sponsible creature, — where, for example, with intent to cause the death of another, he sets a madman or a wild beast at liberty, — he is responsible as a principal not as an accessary. By the rules of the common law an accessary could not, without his consent, be tried be- fore his principal. This rule often occasioned a failure of justice, and it is now generally abolished by statute. Where this is so the distinction between a principal and an accessary before the fact is of importance only as relating to the form of the indictment and the nat- ure of the proof, the punishment in both cases being the same. An accessary after the fact is one who, knowing that a murder or other felony has been com- mitted, receives and conceals the felon, or assists him to escape. Such conduct is always criminal, except in the case of a wife concealing or assisting her husband. The law, however, justly regards accessaries after the fact in a very different light from principals and ac- cessaries before the fact, and the punishments inflicted upon the former are usually much less severe. For the purpose of fixing a limit to punishment, and confining the death penalty to the more deliber- ate and atrocious cases, the legislatures of most states have divided murder into two or more grades or de- grees, and in some instances the same has been done in regard to manslaughter. A person may be indicted for murder in the first degree, and convicted under such indictment of any lower grade of homicide, for the greater includes the less. A person may be in- dicted for murder with an ^e, and, under such in- 484 TALKS ABOUT LAW. dictment may be convicted of murder with a sword or a club, for the difference between the weapons is immaterial. He could not, however, be convicted of murder by poison under such an indictment, for it would give him no information of the nature of the evidence to be brought against him. Every old fash- ioned and regularly drawn indictment for murder or manslaughter contained, not only a description of the weapon used, but also a statement of its value ; and, while there is no longer any legal reason for saying that the pistol used is of the value of five dollars, or that the club used is of the value of one cent, the for- mula is stiU adhered to in New Hampshire, and I presume in other states. This custom is of ancient and curious origin. In Anglo-Saxon times, such in- struments of death were forfeited to the relatives of the deceased, and later, when fines and forfeitures went to the king, they were forfeited to him, and their value was assessed by the jnry and applied to pious uses. For this reason they were caUed deodands, from Deo dandum, to be given to God. This rule was applied even to cases of accidental death. If a man fell from his cart and was killed, or was gored to death by a bull, the cart or the animal was forfeited as a deodand. In strictness of law (although from its great hardship it was scarcely adhered to), if a sailor fell from a ship while in English waters and was drowned, the ship was forfeited as a deodand. Deo- dands were not abolished in England until about 1847, — 9 & 10 Vict. c. 62, — although the custom of claim- ing them became obsolete before that time. After England became Protestant, they were diverted from their former uses, — the purchase of masses, — and generally the right to demand them was granted by OFFENCES AGAINST THE PERSON. 485 the crown to noblemen and other lords of manors. There is perhaps some resemblance between the Eng- lish law of deodands, which existed for about a thou- sand years, and rules in force among the ancient He- brews.^ An unsuccessful attempt to commit murder, however deliberate and malignant, is a crime far inferior in magnitude to murder itseH, for the law — and the rule in regard to other felonies is the same — looks to the result as well as to the intention. No doubt the man who lies in wait and shoots at his intended victim, and misses him altogether, or does not wound him so that he dies within a year and a day, is as guilty, from an ethical stand-point, as if he had kUled him on the spot ; but he does not commit the crime of mur- der, and he can be punished only for the crime which he does commit, that is, for an assault, or an assault and battery with intent to murder. Nearly every offence against the person, from murder down, includes an assault, or an assault and battery ; for " an assault is an intentional attempt by violence to do injury to another," and there is a battery when- ever such attempt is more or less successful. We therefore speak of attempts to commit the most atro- cious crimes as assaults with intent to murder, kiU, rob, kidnap, commit rape, etc., etc., while we usually speak of the completed crimes by their appropriate names. Mere words, however threatening, never constitute an assault ; there must be some movement towards physical violence. Whenever there is a present inten- tion to commit violence combined with some unlawful act which, if not stopped or diverted, would result in 1 Exodus xxi. 28-33. 486 TALKS ABOUT LAW. personal injury, there is an assault. Whether such assault is a petty misdemeanor or a state prison crime will generally depend upon the nature of the injury attempted and upon aU the other circumstances of the case. Any insult or injury, whether small or great, to the person of another, intentionally attempted by violence and in a threatening manner, is an assault, and a completed assault is a battery. Thus it is an assault and battery to spit upon another or to strike him with a meat axe, to hit him with a snowball or to shoot him with a rifle. Insulting and abusive language may extenuate, but will not justify, an assault. As homicide, the most ex- treme form of assault and battery, may be justifiable if it is necessary in the defence of one's self, family, or home from the greatest violence and outrage, so an ordinary assault and battery may be justifiable if it is necessary to prevent injuries of lesser degree, the means used in each case being proportionate to the exigency, and the nature and extent of the injury at- tempted. Thus an ordinary assault may be resisted by ordinary means ; it will not justify the use of a deadly weapon. Though attacked without provoca- tion, one may not beat his assailant by way of pun- ishment; he is limited to self-defence. If one un- lawfully persists in entering the house of another, the owner may use force to eject him or to keep him out, although, unless a crime is intended, not such force as would naturally endanger life. One may forcibly resist a mere civil trespass to his property, but such a trespass wiU. not justify a resort to extreme measures. If one is drunk or disorderly in a public place, or upon the premises of another, he may be removed, but with no more violence than is necessary. Without further OFFENCES AGAINST THE PERSON. 487 illustration, it is perhaps evident what the rules of law upon this subject are, and that they substantially cor- respond to the dictates of common sense. They are intended to maintain decency and order, and at the same time to uphold those who are not swift to take offence, who defend themselves and their rights in a reasonable manner, and who do not assume to avenge their own wrongs. CHAPTER XLI. OFFENCES AGAINST PROPERTT. Simple larceny or theft is " the felonious taking and carrying away of the personal goods of another." There must be a felonious taking, and therefore if one fraudulently spends money, or sells property not his own but which is lawfully in his possession, it is not larceny, but embezzlement. Thus, if one borrows or hires a horse, at the time intending to return it, but afterwards changes his mind and absconds with it, or sells it and absconds with the proceeds, it is not lar- ceny at common law, for there is no felonious taking ; but if the borrowing or hiring is a mere pretext made in pursuance of an existing felonious design, then there is a felonious taking, for the owner's consent so obtained is of no effect ; and, if there is no intent to return the horse at the time of the taking, it is larceny, although it be immediately afterwards abandoned. So it is a felonious taking if possession is obtained by a trick or artifice, or by false pretences ; and even where one drank at a bar and handed a fifty dollar bill to the bartender, who kept it and refused to give change, it was held that the bartender was guilty of larceny. The determining principle is the intent with which the property is taken, and, though taken without the owner's consent or even against his wiU, if the pur- pose is to return it after using it, it is not larceny but OFFENCES AGAINST PROPERTY. 489 only a civil trespass. So also if it is taken under an honest, though mistaken, claim of right. The taking must be for the sake of gain, or at least to benefit the person taking or some one else. To take and destroy another's property out of spite to the owner is not larceny, but malicious mischief only — a far more trivial offence at common law than stealing a shilling, and in many cases held npt to be indictable at all. A very slight benefit is sufficient to transform malicious mischief into larceny. It has been held larceny where a woman took and burned a letter, fearing that its contents might injure her. It has also been held lar- ceny where a hired man secreted his employer's oats and fed them to his employer's horses, to save himself the trouble of winnowing them. This is considered an extreme application of the doctrine, and it was dis- sented from by a minority of the English court be- fore which the question came. " If this law is good,"- says one of the most eminent American writers on criminal law, " it makes it larceny for a cook to take, without authority, from her master's stores articles to improve her master's cooking, and for a nurse to give, without authority, the parent's food to be eaten by the child." There may be a felonious taking although the goods are lost, if the finder knows the owner or can readily discover him, and, instead of returning the lost goods converts them to his own use, or holds them intending to return them only for a reward.^ In such a case, if the value of the goods is so small as to be scarcely worth the trouble of returning them, of course a felonious intent wiU hardly be presumed. Any one in possession of goods is entitled to them as against a thief, and one thief may be convicted of larceny in ' This doctrine is repudiated in Tennessee. 490 TALKS ABOUT LAW. taking goods from another thief who had previously stolen them. So one may steal his own property, if he takes it from the lawfvJ possession of another with intent to charge him for its value. The ofEence is not complete unless the goods are carried away, but a very slight change of position is sufficient, if the thief actually obtains possession and control of them. For example : It was held to be an asportation or carrying away where plate was taken from a chest and laid upon the floor, preparatory to removing it from the premises ; where a diamond was snatched from a lady's ear, and fell, and became en- tangled in her hair ; where a pocket-book had been lifted only about three inches from the bottom of the pocket, when possession was recovered by the owner ; where a parcel was moved from one end of a wagon to the other ; where a horse was led from the stable, and the thief was captured before he could mount. On the other hand, it was held not to be a sufficient carrying away where a watch was picked from a gen- tleman's pocket, and the further execution of the at- tempt was prevented by a guard connecting the watch with the gentleman's person ; where a package or a barrel was merely set up on end; where an animal was merely trapped or killed, not removed ; where a hog was enticed for twenty yards on the owner's prem- ises by dropping corn, and then, an attempt being made to kill it, it squealed so loudly that the defend- ant fled. In connection with the latter case it may be remarked that the enticing of a domestic animal is, in law, carrying it away, and if, with felonious intent, it is lured into an inclosure, or is otherwise brought under virtual control, the crime of larceny is complete. The property taken and carried away must be per- OFFENCES AGAINST PROPERTY. 491 sonal properly. It is neither larceny nor any other crime at common law, but a civil trespass merely, to enter upon the land of another, and dig up and carry off his crops, or to take lead from the roof of his house, or to do any other like act, for the property taken is a part of the real estate. When crops, etc., are severed from the land, they become personal property, and, therefore, if a man on one night enters his neighbor's field, cuts the corn, and goes home, and on the follow- ing night returns and carries it away, the work of both nights not being in law one and the same transaction, he is guilty of felony, although if he had completed his job the first night he would have been at com- mon law, according to Blackstone,^ innocent of crime. " This subtUty in the legal notions of our ancestors " would doubtless be repugnant to the common sense of modern courts if it were not abolished by statute, as it has been, probably, in most states. Finally, to constitute larceny, the property taken must be of some pecuniary value, and the value must be stated in the indictment. Formerly deeds, bonds, mortgages, notes, bills of exchange, and the like, were held not to be property, being merely evidence of title or indebtedness, and they were described in indict- ments as such and such pieces of paper of the value of, perhaps, one penny; but such a rule, of course, could not survive in a modern and commercial age. Animals of wild nature, undomesticated and at lib- erty, are not subjects of larceny at common law, and game is protected, not by the common law, but by stat- utes, the violation of some of which in England was formerly a capital offence. Whether dogs are prop- erty, and can therefore be subjects of larceny, is a ' Blackstone's Com. book iv. chap. 17, sec. 4. 492 TALKS ABOUT LAW. question with which courts have wrestled mightily, perhaps from different stand-points of liking or aver- sion to the canine race, and it would be easy to cite upon either side some of the most illustrious names in English and American jurisprudence. A human corpse is not a subject of larceny, not being the prop- erty of any one ; but if graveelothes are taken with the corpse a larceny is committed, for the clothes are the property of those who buried the deceased. Body snatching, however, is a misdemeanor at common law, and is generally a highly penal offence by statute. Larceny is divided by the common law into grand and petty, the only difference being in the value of the property taken and in the severity of the punishment. At common law stealing property of the value of up- wards of twelve pence was grand larceny, the penalty of which, for nearly nine hundred years, " was regu- larly death." By statute in many of the United States stealing property above a fixed value, for example twenty dollars, is grand larceny, punishable by impris- onment in the state prison; while stealing property of less value is petty larceny, punishable by fine, or by commitment to the house of correction. When a larceny is committed in one county and the thief moves the stolen goods to another county, it is a continuing offence, and he may be prosecuted in either. Compound or mixed larceny has all the attributes of simple larceny with others added, and, now that the death penalty is in most cases abolished, it is usu- ally punished by much longer terms of imprisonment. Its least aggravated forms are stealing from the house or person without actual violence ; its most aggravated forms, burglary, highway robbery, and piracy on the high seas, which corresponds to highway robbery on land. OFFENCES AGAINST PROPERTY. 493 Larceny may or may not be included in burglary ; the former being often, but not necessarily, a part of the latter. A burglar is defined by Lord Coke as " he that by night breaketh and entereth into a mansion- house with intent to commit a felony." Whether the intended felony is larceny, arson, rape, or murder is immaterial so far as the definition is concerned ; though it is not usual to prosecute for burglary when either of the three last named offences has been committed, as they are crimes of equal or greater magnitude than burglary itself. To amount to burglary, the act must be done by night. In very ancient times it was held to be night from sunset to sunrise ; later, in Black- stone's time, and from then to the present time (except in states where the common-law rule is modified by statute), when there is not sufficient daylight to dis- cover a man's features. " This does not extend to moonlight ; for then many midnight burglars would go unpunished ; and besides, the malignity of the of- fence does not so properly arise from its being done in the dark as at the dead of night, when all creation, except beasts of prey, are at rest, when sleep has dis- armed the owner, and rendered his castle defenceless." There must be a breaking and entering. In civil suits for trespass to real estate it is customary to allege that the defendant broke and entered the plaintiff's close, and proof that he, without legal right to do so, crossed the boundary line and entered upon the plain- tiff's land, is sufficient to sustain the allegation, even though the boundary line is not marked, and the tres- pass is unintentional. The terms breaking and enter- ing, as used in criminal law, have a much more re- stricted meaning. Unless admission is gained by fraud .or artifice there must be a forcible opening made, such, 494 TALKS ABOUT LAW. at least, as raising a window or lifting the latch of a door. It is not burglary to enter an open door or window, although it is to come down a chimney, " for that is as much closed as the nature of things wHl/ permit." The breaking may be of an inner, as well as of an outer, door. The least entry of any part of the body, or of any instrument held in the hand, is sufficient ; as where one breaks a window, and with his hand or with a hook takes out goods. In an English case, where the defendant had shot at a person in a house, the ball passing through a pane of glass, the court was divided as to whether it was burglary ; and, although the breaking of the glass and the entering of the shot might have been a technical breaking and en- tering, it would certainly have been better to have in- dicted the defendant for the lesser offence of assault with intent to murder. If a man makes an opening one night and enters the following night, the analogy of the rule in regard to severing crops does not hold, and it is a felonious breaking and entering. So, also, by an ancient statute, and probably by the common law, if he enters an open door or window with feloni- ous intent and afterwards breaks out. To constitute burglary at common law the breaking and entering must be of " a mansion-house," that is, not a store or shop, but an actual residence or its ap- purtenances. It is held that burglary may be com- mitted in a church, for that, says Lord Coke, is the mansion-house of God. In many states it is burglary by statute to break and enter other buildings as well as houses and their appurtenances. Lastly, the act must be done with felonious intent, for the intent is the essence of the crime. It is not burglary to break and enter a mansion-house in the OFFENCES AGAINST PROPEETT. 495 niglit-time to play a practical joke, or even to elope with the owner's daughter. Of course any breaking or entering, either by day or by night, although it may not amount to burglary, is a highly penal offence if the intent is felonious. Highway robbery is the felonious taking of personal property, of any value, from the person (or immediate possession) of another, by violence or by putting him in fear. The element of violence or putting in fear is what distinguishes it from simple larceny, and either is sufficient. An armed band may be so strong, and the means of resistance may be so inadequate, that vi- olence may be unnecessary ; or the person robbed may be incapable of fear ; or the violence may be so sud- den and unexpected, as where he is knocked down and stunned by a blow, that he has no time for fear. In the case of the ear jewel already referred to, the dia- mond was snatched as the lady was passing through. a crowd, and a portion of her ear was torn awaj'. It was held, not only that the taking and momentary re- moval were sufficient to constitute larceny, but also that the violence was sufficient to raise it to the higher crime of robbery. A constructive taking from the person is sufficient, if the property taken is actually in the possession and under the control of the person robbed : thus, if a band of outlaws, by violence or in- timidation, take a herd of cattle from the immediate possession of the owner or keeper, it is as much robbery as if they had rifled his pockets of watch and money. The words inclosed in the above parenthesis are not usually found in definitions of robbery ; it is suggested, however, that they make the definition more complete, and render it unnecessary to recognize a constructive taking from the person. 496 TALKS ABOUT LAW. The common-law definition of larceny was a net that caught the little fish and let the big ones escape. It consigned to the scaffold vulgar thieves, too poor, too ignorant, and too low in the social scale to secure positions of trust and opportunities of betraying them on a large scale ; but it had no terrors for the confi- dential agent, the banker, or the attorney who appro- priated trust funds to his own use, because, being law- fully in possession of them, there could be no felonious taking. To remedy this defect, by which many rascals escaped with impunity, statutes were passed in Eng- land, and probably in aU of the United States, mak- ing embezzlement, or the fraudulent appropriation of property held in trust, a crime punishable like larceny, and in some cases still more severely. It seems al- most incredible that such a defect should have existed in the common law for centuries, and that such stat- utes shoidd have been so long delayed. They could not now be dispensed with. According to modern methods of doing business and of settling estates, such immense values in money, and in personal property of all kinds, are handled and cared for by clerks and other employes, and are held by agents, bankers, guar- dians, administrators, executors, trustees, and trust in- stitutions, and, in consequence, defalcation is of such frequent occurrence, that the law pertaining to em- bezzlement has become of the utmost interest and im- portance. It varies, however, so largely according to local statutes, and is so full of nice technicalities, that a further consideration of it here is hardly practicable. From the variety of definitions ' given by eminent ' " The fraudulent making or alteration of a ^rriting to the pre- judice of another's right." Blackstane. " The false maMng or al- tering, malo animOj of any written instrument for tlie purpose of fraud OFFENCES AGAINST PROPERTY. 497 writers and judges, it would seem that forgery is an offence not easy to define accurately in a few words ; it is in substance, however, the fraudulent making or alteration of any instrument which may be used in evidence against another. A making or alteration of any material part is sufficient ; such, for example, as fraudulently writing a bequest in a will ; writing a promissory note above a signature on a piece of paper otherwise blank ; making, altering, or erasing figures to change the amount of a note or the date of its pay- ment ; inserting a name in, or erasing a name from, or otherwise materially changing a deed, note, bUl of exchange, writ, indictment, or other legal or judicial writing ; making false charges in books of account which may lawfully be used in evidence ; affixing a seal to an unsealed instrument, or removing one from a sealed instrument. The instrument forged need not be in writing ; thus it is forgery to fraudulently cut notches in a baker's tally, each notch representing a charge for bread sold. A person may be guilty of for- gery by fraudulently writing his own name when it is intended to represent another of the same name ; or by fraudulently altering his own deed ; or by fraudu- lently writing the name of a deceased or fictitious per- son; or by fraudulently executing a writing for another and deceit." East. "The making or altering a writing so as to make the alteration purport to be the act of some other person, which it is not. " Coekburn. ' ' The fraudulent making of an instrument in words purporting to be what they are not, to the prejudice of another's rights." Kelly. " When a man fraudulently writes or publishes a false deed or writing, to the prejudice of another." Comyn. " The fraudulent falsifying of any mechanical instrument or proof which may be used against another in legal process." Wharton. An exact definition, broad enough to include everything that may constitute a given crime, and narrow enough to exclude everything else, is some- times difficult to give. 32 498 TALKS ABOUT LAW. without authority. On the other hand, it is held not to be forgery to fraudulently induce one to execute an instrument by misrepresentation of its contents ; or to obtain such signature to a document, the contents of which have been altered by a third person without the signer's knowledge, at least if the third person is not in collusion with the obtainer of the signature ; for in neither case is there any making or alteration for the perpetration of fraud. So it is not forgery to fraudulently remove a coupon from a bond, for it is in law a separate and distinct instrument. Not every false and fraudulent writing is a forgery ; " Where an instrument is so palpably and absolutely invalid that it can under no circumstances be proof in a legal pro- cedure, thus falsely to make it is no forgery." But, although defective in form and substance, if its defects are not such as to render it, if it were genuine, abso- lutely void, if it might be enforced or used in evidence in a court of equity, or in the courts of another state, or in a foreign court, then it is forgery. For example, if a deed or wiU. without witnesses were absolutely void everywhere, falsely and fraudulently to make a writing purporting to be such a deed or will would not be for- gery ; but if such deed or will, although void upon its face in the state where it was executed or attempted to be used, might, if it were genuine, be enforced or be used in evidence in the courts of another state, or in a foreign court, then falsely and fraudulently to make such deed or will would be forgery. Forgery is a mis- demeanor only at common law ; but the importance of commercial paper in modern times has caused it to be made everywhere by statute a highly penal offence. Cheating is a misdemeanor at common law ; but many things which no honorable man could do, many OFFENCES AGAINST PROPERTY. 499 things even which in law as in equity would be ample ground for declaring contracts void, are not recognized as criminal cheats. Thus while it is a criminal cheat to sell by false weights, measures, or other mechanical devices calculated to mislead and defraud the general public, it is not a criminal cheat to sell short weight or measure, or to make false statements in regard to ' the quantity of goods, or in regard to their quality, unless they are unwholesome provisions. The subject cannot be enlarged upon here, and it may be suffi- cient to say that it is the general policy of the com- mon law to hold persons criminally liable who com- mit cheats and frauds of a nature calculated to inter- fere with the due course of legal justice, or to im- pose upon the community at large, and in other cases of dishonest dealing to leave the persons injured to such remedies as they may have by civil suits ; for the state cannot undertake by criminal prosecutions to investigate all contracts that may be tainted with dishonesty and sharp practices. The common law in this respect has been largely supplemented by statutes in the different states of this country and in England, and many cheats, frauds, and false pretences, not be- fore indictable, have been made misdemeanors pun- ishable by fine or imprisonment. Arson, at common law, is the wilful and malicious burning of the house or out-house of another, or his bam if stored with hay or grain. Any permanent place of residence is a house within the meaning of the law, and it is therefore arson to set fire to a jail or prison for the purpose of effecting an escape. It is arson to bum one's own house to defraud an insur- ance company or a mortgagee, or to thereby set fire to the house of a neighbor. Arson is consummated if 500 TALKS ABOUT LAW. any part of the building, even a single board, is con- sumed or charred, provided the attempt is both wilful and malicious. Malicious mischief, as a common law offence, has received little attention in England, because, as objects of investment came into notice they were protected by acts of parliament, which are exceedingly numerous, and some of which are very ancient. In this country, however, prosecutions for malicious mischief, based on common law principles, have been more frequent. The following are examples of acts of malicious mis- chief that have been held to be indictable at common law in this country : Destroying domestic animals of another, especially if his family is disturbed ; wanton cruelty to one's own animals in public ; secret cruelty to the animals of another, with intent to injure the owner ; throwing the carcass of an animal into a well in daily use ; poisoning fowls ; maliciously destroying valuable papers ; girdling ornamental trees ; setting fire to private property, such as tar barrels ; putting cow -itch on a towel with intent to injure a person about to use it ; breaking the boat of another ; mali- ciously discharging a gun, or breaking into a room with violence, for the purpose of annoying and injur- ing a sick person. On the other hand, it has been held not to be indictable at common law to maliciously cut down a crop of standing corn, or to maliciously break in pieces and destroy windows in a dwelling-house; for, unless the act is done secretly and in the night- time, it is considered as a mere trespass to real estate. " The recent inclination," says Wharton, " so far as the common law is concerned, is to restrict the party injured to his civil remedies, except where the offence is committed secretly, in the night-time, or in such OFFENCES AGAINST PROPERTY. 501 a way as to inflict peculiarly wanton injury ; or where it is marked with malignant cruelty to animals ; or where it is accompanied with a breach of the peace." Both under the common law, and, generally speaking, under the statutes that have been enacted in most or in aU. of the United States, the penalty is usually much less for malicious mischief than for larceny ; though why it should be considered a greater crime to steal twenty or fifty dollars than to destroy ten times that value out of pure malice it is difficult to see, unless it is out of reverence for the common law and its policy, in many cases, of winking at crimes that have not the excuse of poverty, and visiting with the severest pen- alties those that have. Some years ago it was my official duty to prosecute several persons for a series of outrages upon a respectable farmer. A bam, with its contents, and a large quantity of wood and timber were burned ; crops of various kinds, to the value of many hundreds of dollars, were destroyed ; farming implements were broken ; harnesses were cut in pieces ; spikes were planted in the mowing. The youngest offender was sentenced to the state prison for burning the barn. His elder brother, who was not connected with the arson, but was engaged in some of the worst of the other outrages, was retired to that institution only by convicting him of entering an unoccupied house in the daytime, and stealing a knife worth about eight cents. The father, who had engaged in the worst outrage except the arson, was punished to the full extent of the statute — one year in the house of correction. Had he stolen property of one fourth the value of that which he wilfuUy, maliciously, secretly, and in the dead of night, destroyed, the penalty would have been imprisonment in the state prison not ex- ceeding five years. CHAPTER XLII. EQUITY. It is impossible to discuss this extensive and compli- cated department of jurisprudence within the limits of a chapter, and little will be attempted beyond an outline of its peculiar province. The origin of what is technically known as equity was alluded to in the first chapter, and will not be dwelt upon here. For nearly six hundred years courts of law and courts of equity existed side by side, the rules of the one often conflicting with those of the other, and not seldom was a court of law restrained by a court of equity from enforcing its own decrees. Recently, in England, common-law judges have been invested with equity powers, and the same policy has been adopted in many, if not in most, of the United States, so that, although the rules of equity and of common law are not the same, and although the meth- ods of procedure are widely different, they are admin- istered in many cases by the same tribunals. Thus these two streams of justice, which have so long flowed separately and sometimes in contrary directions, are gradually commingling, and the time wiU probably come when all distinctions between them, except those of mere form,will be obliterated. One of the chief functions of equity is to furnish more complete and adequate remedies than those given EQUITY. 603 by the common law. A suit at law cannot be main- tained until one has been deprived of a right or has suffered an injury, and, in a majority of cases, the law can give nothing but money compensation. It is a peculiar province of equity to protect the right; to prevent the wrong, instead of permitting it and then awarding damages. The way in which it does so may be best shown, perhaps, by a few illustrations. A child is given away at its birth, the gift being either oral or by a writing not under seal, and there- fore liable to be revoked. The foster parents regard the child in aU respects as their own, and maintain and educate it, and do everything in their power for it until it is ten or twelve years old. If the father then appears and takes the child, their only remedy at law is to bring a suit for care and money expended during the last six years, — a very inadequate compen- sation for the outrage to their feelings and affections. But, if they know what he intends, they may take measures of a much more effective character. By applying to a court of equity they may have the father enjoined from taking the child until he compensates them for all their care and expense from the first, or even from taking him upon any condition, if that ap- pears to be for the child's good. A erects a private nuisance to B's injury. B's only remedy at law is to bring a suit for damages, and to keep bringing suits as long as the nuisance is main- tained ; but a court of equity has power to make short work of the nuisance by prohibiting it altogether. A has a grove which he prizes as an ornament to his estate far beyond its value for wood and timber. B claims to own the land and is openly making prepa- / 504 TALKS ABOUT LAtV^. ration for cutting the trees. There is no process of law by which A can prevent him from doing so ; he can only wait until an irretrievable injury is done, and then, in one of several forms of action, recover com- pensation for it. A court of equity may enjoin B from lifting an axe untU the title to the property is settled. A sells his business and good-will to B, and cove- nants not to be his rival in trade. He immediately opens a store of the same kind in the adjoining block. B's only remedy at law is to sue A on the covenant, and get what damages he can for loss of custom ; but a court of equity will close A's store. A gives B a bond for a deed to an estate, and after- wards refuses to execute the deed. B's only remedy at law is a suit for damages ; but a court of equity can make A give a deed. If a writing which may affect the legal rights of in- nocent persons contains a material error, equity will correct it. If such writing has been obtained by acci- dent, mistake, fraud, or coercion, equity wiU. compel its surrender. It does not wait for the mischief to be done, or even for a suit to be brought upon the instru- ment. These illustrations might be continued indefinitely, for imder an almost indefinite variety of circum- stances, where the remedy given by law is in its nature inadequate and one more complete is possible, the aid of equity may be invoked. In a word, equity admin- isters the ounce of prevention; law the pound of cure. The broader and still more important functions of equity relate especially to the faithful administration of trusts, and to the settlement of involved and com- EQUITY. 505 plicated matters, as where a railway corporation be- comes insolvent or otherwise gets into difficulties, and receivers are appointed for the benefit of all concerned. Any discussion of the principles and methods of pro- cedure applied to the difficult and delicate affairs with which the common law cannot effectually deal, and with which equity has constantly to do, would ex- tend this chapter beyond all reasonable limits. Com- pared with suits at common law the number of suits in equity is small ; but in relative average importance the reverse is true, from the complicated nature of the matters to be investigated and controlled, as well as from the vast interests which are at stake ; and al- though equity practice is not calculated to attract the public eye, it is regarded in centres of wealth and business as the most responsible and lucrative depart- ment of the profession. It is much easier to illustrate the purposes which equity serves than to define what it is. It is by no means coextensive with natural justice, for if it were it would invest its judges with absolute power to de- cree whatever they might thiak right, thus making them superior to all human law and establishing a tyranny that would be unendurable. It is more thor- oughly tinctured than the common law with the spirit of Roman jurisprudence; but it nevertheless follows common law analogies to a great extent, and, like the common law, it is governed by rules and precedents. It is not superior in authority to the common law, al- though it has sometimes been in conflict with it, and has often modified or restrained its rigors. It is rather supplemental to the common law, having a separate sphere of its own, and dealing only with matters which the common law does not reach or reaches but imper- 506 TALKS ABOUT LAW. fectly, such as the prevention of threatened injuries, the discovery of fraud, the correction of mistakes, the specific performance of contracts, the taking of testi- mony for future use, the perpetuation of evidence, the administration of trusts, and the settlement of affairs where decrees to do complete justice should take into account the future as well as the past, and be adapted to a variety of circumstances and interests — in other words, where there is not a plain, adequate, and com- plete remedy at law. Generally speaking, therefore, the provinces of law and equity are distinct, and where the law can do full justice the aid of equity cannot be invoked ; but equity has jurisdiction where law can furnish only a partial remedy, and, as the sphere of law constantly broadens and as that of equiiy does not narrow, it has come to pass that they have in many instances full concurrent jurisdiction over the same matters. Forms of proceeding in equity are quite different from those at law. A suit at law is begun by a writ issued under the seal of the court. By the common law system of pleading the matters in dispute are focused, and, however voluminous the testimony and abstruse the law, both tend (except in replevin and a few other forms of action) to the practical query as to whether the plaintiff is entitled to maintain his suit, and, if so, how much he should have in dollars and cents. A suit in equity is begun by a bill or petition to the court, stating the facts and praying for the de- sired relief. This is filed with the clerk and served on the defendant in the mode prescribed by local usage or statute, usually by copy. The reply, which is called the answer, usually states the defence much more fully than it would be stated in a common law plea. From EQUITY. 507 the nature of eases with which equity has to deal, the issues are often too complicated and involve too many details to be intelligently tried, and decrees to meet all exigencies must often be too elaborate to be com- prehended by a jury ; and, although questions of fact are occasionally tried in this way, the jury system is and always must be essentially foreign to equity prac- tice. Some one has said : " For justice, all places a temple and all seasons summer." This is true of equity, so far as injunctions to prevent threatened in- juries are concerned. The bill having been filed, a petition for such injunction, supported by a£B.davits, may be presented to a judge in equity wherever and whenever he, can be found, at his home as well as at court, in vacation as well as in term time. In such a case, especially if the danger is great or if full satis- faction for the wrong cannot be expected, a temporary injunction wiU be issued, and, if circumstances require it, an immediate hearing wiU be ordered. If a case is made out, the injunction will be made perpetual; otherwise it will be dissolved. Corresponding to its jurisdiction is the power which a court of equity has to make its decrees respected. Since the abolitioh of imprisonment for debt, an irre- sponsible debtor may snap his fingers at a court of law ; but when a court of equity orders one to execute a deed, to account for trust funds, to do or not to do some particular thing, it may compel obedience by fine and imprisonment. CHAPTEE XLIII. STATUTE LAW. The Londoner, the Yorkshireman, the Irishman, the Americanized German, Frenchman, or Spaniard, the Yankee, the Southerner, the frontiersman, the planta- tion negro, have each and all their marked peculiari- ties of speech ; yet, whatever the accent, brogue, dia- lect, or form of expression, the language which they use is English, and cannot be taken for anything else. So our common law has its local peculiarities, its rules recognized in some states and not in others, and it is impossible to give an outline universally correct in all particulars ; yet it is essentially the same system in England, in the greater part of the British colonies, and in nearly all of the United States. Again, our language and our common law have a like origin, — Latin, Saxon, Scandinavian, Norman- French, fused and blended together. The result, in the one case, is a new tongue ; in the other, a new system. Both have changed and grown and expanded with changing customs, with advancing civilization, with the expansion of ideas and enterprises. In the one, words and phrases acquire the sanction of author- ity from the usage of men eminent in literature ; in the other customs and principles acquire like sanction from the works of eminent law writers and still more from judicial decisions. STATUTE LAW. 509 The analogy ceases with statute law. Between com- mon and statute law there is a striking contrast. The one is flexible and more or less natural ; the other is artificial and comparatively rigid. The one is a sys- tem based on immemorial custom, on reason, on pub- lic policy, on judicial decisions ; the other is not a system, and, subject to constitutional limitations, is in each state whatever its legislature has seen fit to enact, and what it has enacted at one session it may repeal at the next. In a majority of cases a lawyer can ad- vise correctly in regard to a question involving com- mon-law principles, without referring to his books, if he is a scholar in his profession and has a good legal mind ; but principle is as unreliable a guide to statute law, where the precise words are unknown, as pronun- ciation would be to English spelling. The English reports and the supreme court reports of states distinguished for the learning and ability of their judiciary are eagerly purchased by lawyers in other states, for a decision made by the English House of Lords or by the Supreme Judicial Court of Mas- sachusetts, may be cited in Maine or in Georgia as an authority, and in the same way opinions by emi- nent American judges are cited in English courts. On the other hand, scarcely any lawyer provides him- self with the statute law of more than his own and perhaps one or two adjoining states, although the stat- ute law of every state in the Union may cost less in the aggregate than the court reports of a single state. Even to the profession, statute law, generally speak- ing, is of merely local interest. It would, therefore, be idle to outline it for the benefit of the non-pro- fessional reader, even if it were possible to do so. It would be impossible to do so, for it varies so greatly 510 TALKS ABOUT LAW. with state lines that what might be correct in one state would not even be approximately so in others, and it is changed so constantly and in such an erratic manner that a work carefully written might when pub- lished, if a month or two of legislative activity had in- tervened, be grossly erroneous. A few words of general application will be in place in regard to the power and authority of legislative assemblies and the construction to be put upon their acts. " The power and jurisdiction of Parliament," says Lord Coke, " is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds." Blackstone says : " It has sovereign and uncontrollable authority in the making, confirm- ing, enlarging, restraining, abrogating, repealing, re- viving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or tem- poral, civil, military, maritime, or criminal : this being the place where that absolute despotic power which must in all governments reside somewhere, is intrusted by the Constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that tran- scend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown, as was done in the reigns of Henry VIII. and William III. It can alter the established religion of the land ; as was done in a variety of instances, in the reigns of Henry VIII. and his three children. It can change and create afresh even the Constitution of the kingdom and of parliaments themselves, as was done by the Act of Union, and the several statutes for triennial and sep- tennial elections. It can, in short, do everything that STATUTE LAW. 611 is not naturally impossible ; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament." The power of a state legislature corresponds exactly to that of the British Parliament, except in so far as it is controlled by constitutional prohibitions, state or national. It possesses whatever is not denied to it, either expressly or by implication, and, in passing upon the constitutionality of an act, the court will not consider whether the instrument authorizes it, but merely whether it prohibits it. An opposite ride is applied to acts of Congress. Congress derives its law-making power from the Con- stitution of the United States, and has only such power as that instrument gives, either expressly or by fair implication. An act of a state legislature is void if it violates a constitutional provision ; but an act of Congress is void if it is not authorized by a constitu- tional provision. This rule of law, well settled and in such marked contrast to that applied to state legislatures, has no direct bearing upon the specious and pernicious doc- trine of " state sovereignty," to which Callioun de- voted his great powers, which Webster so grandly op- posed in his reply to Hayne, and which was finally eradicated only by four years of bloody civil war. We are a nation, not a confederation of states. So far as the national Constitution extends — and in re- gard to its precise boundary lines there is a difference of opinion among the ablest lawyers — it is supreme. In matters to which it does not extend, the states are supreme and sovereign. Courts will not declare an act of a state legislature void as being unconstitutional except in clear cases. 512 TALKS ABOUT LAW. Where there is an irreconcilable conflict between statutes, the later in date operates as a repeal of the earlier one so far as it contradicts it. A statute of special application, for the purposes to which it applies, controls, or supersedes, or operates as an exception to a statute of general application with which it is inconsistent. Statutes are interpreted by rules of the common law, or, in some states, by statutory rules which are generally founded upon common-law principles. In construing a statute, the first object of a court wiU be to carry into effect the manifest intention of the legislature, and to so interpret it, if it can fairly be done, that it wiU not be repugnant to the context or to other statutes. Where the legislative intent is doubtful, the court win endeavor to give the statute as just and reason- able a construction as is possible. Ordinary words and phrases will be construed ac- cording to the common and approved usage of the lan- guage, — unless they are technical, or have a peculiar and appropriate meaning in law, in which case it will be presumed that they were used in the latter sense. Unless a different intention can be gathered from the context or from the nature of the case, words im- porting the plural number wUl apply to the singu- lar, and words importing the siugular to the plural ; words importing the masculine gender wUl apply to the feminine, although words importing the feminine gender will not usually apply to the masculine; so the word " state " wiU apply to a territory, the word " town " to a city, the word " will " to a codicil, etc., etc. These examples merely illustrate the rule that STATUTE LAW. 613 words and phrases will be construed according to com- mon and approved usage. Thus, it is customary to apply the word " mankind " to the whole human race, while the word " womankind " is applied to only half of it. It was remarked in the first chapter that much of our common law is derived from obsolete and for- gotten statutes. It is also true that not a little of what is recognized as common law in this country was statute law in colonial times ; for rules that become established, both in this country and in England, have often survived the authority that made them. Although statute law, being local and subject to radical changes with every legislative session, can have little place in a general outline of what law is, its im- portance as an element of our jurisprudence and as a factor in our civilization can hardly be overestimated. Few, perhaps none, of the great revolutions of history have wrought greater changes in personal and prop- erty rights and interests than have been effected by statutes enacted in England and in this country during the past century. The destruction of one form of government and the substitution of another, the conquest of a state, even the change of a dynasty, attracts the attention of the civilized world, and every circumstance attending it is a public event rising to the dignity of history ; but often, after the great tragedy is over, the actors and all whom they represent settle down into substantially the same condition as before. The laws, the customs, the institutions, the rights, the interests, the ideas, and the feelings of the people remain unchanged. Yet it has sometimes happened that, unobserved by the his- torian, scarcely noticed by intelligent men outside the 33 514 TALKS ABOUT LAW. legal profession, and amid the noise and strife of pol- itics unconsidered by the majority of the law-makers themselves, there have slipped through the legislature, the Congress, or the Parliament, statutes more impor- tant to the material rights and interests of the people than the most startling event or the bloodiest battle in their history. The common law is like an ancient and mighty oak, growing slowly, changing slowly, as the centuries come and go. Statute law is the product of a day. If im- mediate and radical changes are desirable, the legis- lature is the place to seek them. Judges, wavering between a sense of official duty and a desire to do jus- tice, sometimes strike a balance between what the law is and what it ought to be, and thus undermine and gradually abolish unjust rules ; but legislatures are driven to no makeshifts, no illy concealed stretches of authority, to secure what is right between man and man. Subject to constitutional limitations, they have absolute power to make laws and repeal them. Jeremy Bentham published his " Fragment on Gov- ernment " in 1776, and from that time to the present " wrongs hoary with age and abuses every one of which was a freehold " have been attacked through the press, from the stump, in the legislature, until one by one they have disappeared. The past century has been one of great legislative reforms. Scaffolds no longer drip with blood ; the petty sneak thief is not hurried away to the gaUows ; the polished rascal who embezzles thousands is not always unwhipped of justice ; viola- tions of trust and various kinds of fraud have been made crimes, as well as acts of violence ; punishments are less severe, more certain, and fall upon all classes, rich and poor, educated and ignorant, with comparative STATUTE LAW. 515 equality. In the administration of justice new methods have been adopted, the cumbersome machinery of the middle ages has been remodelled, and, though "the law's delay " is still proverbial, a lawsuit of ten years is as rare now as one of a hundred years was a century or two ago ; parties in interest, and, in many states, persons accused of crime, can testify ; and in England, and to a great extent in this country, the jurisdictions of law and of equity have been fused and blended to- gether. The gulf between real and personal property has been narrowed. Married women have been recog- nized as human beings, having personal and property rights of their own. A thousand notable things have been done, which only the legislative power could have done as speedily and as effectually. Mistakes are incident to aU changes, and, of course, there has been a great deal of crude, unwise, and mis- chievous legislation ; but two things, the influence that experienced and able lawyers have always had in our legislative assemblies, and the fact that we are broken into so many states, have reduced such evils to a mini- mum. The latter circumstance is specially important. A statute, for example, is passed in New Hampshire. If it is unwise, if its effects are found to be pernicious, it may be repealed at the next session and no other state wiU be injured by it. On the other hand, if it is found to be wise, other states may adopt it and im- prove upon it. Thus each state may avoid the errors and profit by the experiments of every other state ; and an act that has real merit and meets a popular need will sometimes be adopted by one legislature after another with great rapidity, and before long appear upon the statute books of Great Britain. 616 TALKS ABOUT LAW. I have now reached the end of a work that has been written little by little as I could command the time, and has been a source of recreation and pleasure to me for several years. I am not blind to its many imper- fections, but I have done my best and have no apologies to offer. My aim, as stated in the Preface, has been to give in a simple way some idea of what law is and how it is administered, — such general information upon this subject as intelligent people are expected to have upon other subjects. I have taken great pains to make the work accurate as far as it goes, and I think it contains no statement of what the law is which is not sustained by eminent authority, although in many instances there is eminent authority to the contrary. It is necessarily incomplete and fragmentary, for the subject is so vast that a general outline would fill volumes. Many im- portant departments have been dismissed with here and there a paragraph ; many others have not been alluded to. The foregoing chapters contain little that is not a matter of elementary knowledge among lawyers, and it has seemed to me that a continual reference to de- cisions and text-books in support of statements made would be of no value to non-professional readers. APPENDIX A. Chaptek XXI. — Teacher and Pupil. " Sending a child to an industrial school is not an imprisonment ; and the statute is not invalid because it authorizes children destitute by misfortune and children convicted of crime to be alike committed to industrial schools, especially as such commitment is subject to judicial discretion." ^ In this case the court says : " Courts and officers before whom a child within the conditions of the section may be brought, ' if satis- fied on inquiring of the fact, and that the welfare of such child will be promoted thereby, may order such child to be sent to an industrial school in his own county, if there be one, and if not, to one in another county, and may direct such child to be kept and maintained in such school, at the expense of the county, until twenty-one years of age, or earlier discharged as pro- vided later in this act.' The rest of the section makes similar provisions for sending children convicted of crimes to such schools. It seems to be assumed on the argument that the power of courts to send children to these schools under either branch of the provisions was peremptory. But we think that it rests clearly in dis- cretion controlled by the welfare of the chUd. And we should have been inclined to hold the term of eommit- ' Milwaukee Industrial School t. Supervisors of Milwaukee, 40 Wis. 328, 1876. 518 TALKS ABOUT LAW. ment during minority to be also discretionary,^ if the language of this section had not been controlled by the provision in sec. 7, that all sentences and commitments shall be until majority. Sec. 6 authorizes industrial schools to receive children so sent to them, and there- upon to take exclusive custody, care, and guardianship of such children until discharged therefrom. . . . Sec. 7 authorizes the officers of the schools to discharge chil- dren sent to them by judicial authority before majority, when, in their judgment, it shall be for the interest of the children. Sec. 8 gives authority to the officers of the schools to detain children sent to them by judicial authority ; makes provisions for the proper education of the children in the schools, and gives discretion to the officers to bind out the children as apprentices or to give them to suitable persons for adoption during mi- nority. It was strongly objected to the statute, that it authorizes the same disposition of children destitute by misfortune and of children convicted of crime, commit- ting them alike to these schools during minority, there to associate together. It must be remembered, how- ever, that this evil, if evil it be, is subject to judicial discretion, and that in sentencing criminal children courts will not overlook the discretion to confine them in ordinary prisons or in these schools, or the degree of depravity of convicted children, or the liability of des- titute children in these schools to be demoralized by association. Children guilty of crime are not always, perhaps not often, so depraved, as to make their pres- ence in such schools dangerous to their associates. The state providing for children dependent upon it, whether for indigence or crime, has an essential discretion in 1 Cutlery. Howard, 9 Wis. 309 ; Market Bank v. Hogan, 21 Wis. 317; Butcher v. Butcher, 39 Wis. 651. APPENDIX. 619 the manner of doing so. And it appears to have been in the mind of the legislature that children guilty of accidental offences might be more sure to gain than children destitute by misfortune would be to lose by the association, under the careful discipline provided by the act, subject to the supervision of the state board of charities and reform. But if the objection were as grave as represented, it would be a defect of detail only, not of power ; a blemish not surprising in the infancy of so benign a reform, and readily to be ob- viated in time by amendment of the statute. The gravest objection made to the statute is, that the com- mitment of a child to one of these schools until majority, except for crime, operates as an imprisonment of the child for that period, without due process of law, and that the statute authorizing it is therefore a positive violation of the Constitution. . . . We cannot under- stand that the detention of a child at one of these schools should be considered an imprisonment, any more than detention in the poor-house ; any more than the detention of any child at any boarding-school, standing for the time in loco parentis to the child. Parental authority implies restraint, not imprisonment. And every school must necessarily exercise some meas- ure of the parental power of restraint over children committed to it." In McLean County v. Humphreys, 104 111. 378, the court, in delivering its opinion upon the constitution- ality of the act providing for the commitment to the industrial school of female minors found begging, re- ceiving alms, or consorting with reputed thieves, pros- titutes, or other vicious persons, etc., says : — " We perceive no force in the objection that the act in question is an infringement upon the personal liberty 520 TALKS ABOUT LAW. of the citizen as guaranteed by the Constitution. The restraints which the act imposes are only such as are essential to the comfort and well-being of the unfortu- nate class of persons who are brought within its pro- visions. All governmental and parental care neces- sarily imposes more or less wholesome restraint, and we see nothing in the act that looks beyond this. . . . The claim that the act in question is not as well guarded in some respects as it might be with a view of preventing abuses, even if it were well founded, is a matter that addresses itself to the legislative, rather than the judi- cial department of government, and would be no ground for declaring the act unconstitutional" In Roth ^ Boyle v. House of Refuge, 31 Maryland, 329, 1869, two boys had been committed to the house of refuge by a justice of the peace, the one on com- plaint of his father, the other "upon complaint and due proof," and the court, after disposing of the peti- tions in favor of the house of refuge on other grounds, says : — " This conclusion properly disposes of the case, as presented to this court ; but inasmuch as a grave con- stitutional question has been fully discussed, involving the power of a justice of the peace to commit, and of the managers of the house of refuge to detain, minors charged as and proved to be persons of incorrigible or vicious conduct, so that his or her control is beyond the power of parent, guardian, or next friend, we deem it proper, in view of the great public importance of the subject, to say, without stating at large the reasons for the conclusion, that we are clear in the opinion that the power conferred upon the justice of the peace, as also that conferred upon the managers of the house of refuge, by the 18th sec. of art. 78 of the Code of Pub- APPENDIX. 621 lie Gen. Laws, is in nowise in conflict with the Declara- tion of Eights or the Constitution of this state. And we fully concur in the reason and judgment of the Supreme Court of Pennsylvania in disposing of a sim- ilar question in the case of Ex -parte Crouse, 4 Whar- ton, 9." In JEx parte Crouse the court say : — " The house of refuge is not a prison, hut a school where reformation, and not punishment, is the end ; it may indeed be used as a prison for juvenile convicts who would else be committed to the common jail, and in respect to them the constitutionality of the act which incorporated it stands clear of controversy. It is only in respect to the application of its discipline to subjects admitted on the order of a court, a magistrate, or the managers of the almshouse, that a doubt is entertained. The object of the charity is the reformation, by train- ing the inmates to industry ; by imbuing their minds with the principles of morality and religion ; by furnish- ing them with the means of earning a living ; and above all by separating them from the corrupting influence of improper associates. . . . It is to he remembered that the public has a paramount interest in the virtue and knowledge of its members, and that, of strict right, the business of education belongs to it. The parents are ordinarily intrusted with it, because it can seldom be put into better hands ; but when they are incompe- tent or corrupt, what is there to prevent the public from withdrawing these faculties, held as they obviously are at its sufferance ? The right of parental -control is a natural, but not an inalienable one. It is not excepted by the Declaration of Rights out of the subjects of or- dinary legislation, and it consequently remains subject to the ordinary legislative power, which, if wantonly 522 TALKS ABOUT LAW. or inconveniently used, would soon be constitutionally restricted, hut the competency of which, as the govern- ment is constituted, cannot he doubted. As to ahridg- ment of indefeasible rights hy confinement' of tJis person, it is no more than what is borne, to a greater or less extent, in every school; and we know of no natural right to exemption from restraints which con- duce to an infanCs welfare^ In Prescott v. State, 19 Ohio St. 184, in accordance with the statute hereafter quoted, the grand jury made a return that Prescott had been accused before them of feloniously burning and causing to be burned a barn, etc. ; that the evidence was sufficient to justify putting him on trial ; that he was a vicious boy ; that he was under sixteen years of age ; that he was a suitable person to be committed to the house of refuge or to the reform farm ; and that they made this return instead of an indictment, for the court to take such action as the law provides. Thereupon the court ordered his commitment until he should be of age, or should be reformed and duly discharged, and he was committed accordingly. Prescott's counsel claimed that the stat- ute was unconstitutional, because it was in violation of the fifth amendment of the United States Constitution and of various sections of the Constitution of Ohio, in that it deprived him of liberty without due process of law, of a trial by jury, and of the right to appear and defend. Upon the other side it was urged : — "As to the objection that Prescott has been denied a trial by jury, guaranteed by the Constitution to every citizen, and that he had not the opportunity to confront the witnesses against him face to face, etc., and that if the statutes authorize such proceedings as were had in this case, then the same are unconstitutional and void, — : APPENDIX. 623 I reply : The constitutional provisions suggested refer to the rights of a party accused, charged, and indicted for crime ; but against Prescott no indictment was found, no charge of crime preferred upon which to put him upon his trial. Neither has there been punish- ment inflicted. The statute metes out no penalty or punishment, hut is intended to subserve the public good and no individual injury. It provides a system of benevolent education or apprenticeship for young boys of evil habits or bad surroundings. The state may thus protect itself and promote the public weal." ^ This position was fully sustained by the court. In delivering its opinion, it says : — " The decision of the case depends upon the validity of the section named, which provides : ' If any accusa- tion of the commission of any crime shall be made against any infant under the age of sixteen years, be- fore any grand jury of the county, . . . and the charge appears to be supported by evidence sufficient to put the accused on trial, the grand jury may, in their discre- tion, instead of finding an indictment against the ac- cused, return to the court that it appears to them that the accused is a suitable person to be committed to the guardianship of the directors of the house of refuge, and the court shall thereupon order such commitment.' The subsequent legislation authorizes the commitment to be made to the guardianship of the board of com- missioners for reform schools, who are invested by law with the care and control of the reform farm. In the assignments in error, it is claimed that the statute in question is in conflict with art. 5 of the amendments of the Constitution of the United States ; also, with sections 5 and 10 of art. 1 of the Constitution of the 1 5 Wharton, 11 ; Story's Eq. sec. 1341. 524 TALKS ABOUT LAW. state. The amendment to the Constitution of the United States referred to has no hearing on the case. That provision does not operate as a limitation of the power of the state governments over their own citizens, but is exclusively a restriction upon federal power. This has been repeatedly decided by the Supreme Court of the United States, and in the late case of Twitchell V. The' Commonwealth ^ was not regarded as an open question. The provisions referred to in our state Con- stitution relate to the preservation of the right of trial by jury, and to the rights of the accused in criminal prosecutions. We do not regard this case as coming within the operation of either of these provisions. It is neither a criminal prosecution, nor a proceeding ac- cording to the course of the common law, in which the right of trial by jury is guaranteed. The proceeding is purely statutory ; and the commitment, in cases like the present, is not designed as a pu7iishment for crime, but to place minors of the description, and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. The institution to which they are com- mitted is a school, not a prison ; nor is the character of their detention affected hy the fact that it is also a place where juvenile convicts may be sent, who would otherioise be condemned to confinement in the common jail or the penitentiary." ^ The following paragraph, from an article by Sey- mour D. Thompson, may be found in the Criminal Law Magazine for January, 1886 : " Statutes exist in the various states providing for the commitment of vagrant children to houses of refuge, incorporated asy- 1 7 Wallace, 321. 2 4 Wharton, 11. APPENDIX. 525 lums, reform schools and other charitable institutions. Such statutes are necessary police regulations, and rest upon the power of the state, as parens patrioB, to pro- vide for fatherless children or for children whose par- ents are unfit to have their custody and education. The validity of such commitments depends upon the terms of the statute in each particular case, and also upon its constitutionality. There must, of course, be something in the nature of an adjudication of the ques- tions of fact which authorize the commitment, though it seems that the proceeding may he summary. Where such a commitment has been made, the relative rights of the charitable institution or of the master to whom the child has been bound by it and the parent, wiU, on habeas corpus, be determined on the general princi- ples elsewhere stated : the one has no higher right than that of parent, and the other than that of guar- dian, and the legal rights of either will be overruled when necessary to promote the good of the child." Notes are appended to the above paragraph, discuss- ing the subject somewhat further and referring to sev- eral decisions that are not quoted from in this Ap- pendix. T7te People v. Turner^ is the leading case to the effect that the commitment of a child to an industrial or reform school is a punishment, and unless preceded by trial and conviction, an unconstitutional restraint of liberty. The following is the reported case in fidl : — • Supreme Court of Illinois. THE PEOPLE ex rel. O'CONNEL v. TURNER. An act of the legislature creating a reform school, and providing for the summary commitment to it of children who are " destitute of 1 55 ni. 280. 526 TALKS ABOUT LAW. proper parental care and growing np in mendicancy, ignorance, idle- ness, or vice," is unconstitutional, as it prescribes a virtual imprison- ment -without due process of law. Besides the objection to the summary method of proceeding- pre- scribed, such an act, so far as it restrains liberty for any cause except actual crime, is in violation of the BUI of Rights, which declares that all men have certain inherent rights, among which is liberty. The rights of the state and of parents over children, stated and dis- cussed by Thorntoit, J. This was a writ of habeas corpus, directed to the superintendent of the Reform School of the city of Chicago. The first act in relation to this " reform school " is a part of the charter of the city of Chicago, approved February 13, 1863, and a second is entitled " An Act in reference to the Reform School of the City of Chi- cago," approved March 5, 1867. The first section establishes a school for the safe keeping, education, employment, and reformation of all children, between the ages of six and sixteen years, who are destitute of proper parental care, and growing up in mendicancy, ignorance, idleness, or vice." Section 4 of the Act of 1867 provides that, " whenever any public magistrate or justice of the peace shall have brought before him any boy or girl, between the ages of six and sixteen years, who he has reason to believe is a vagrant, or is destitute of proper parental care, or is growing up in mendicancy, ignorance, idleness, or vice," he shall cause such boy or girl to be arrested, and, together with the witnesses, taken before one of the judges of the Superior or Circuit Courts of Cook County. The judge is empowered to issue a summons or order in writing to the child's father, mother, guardian, or whosoever may have the care of the child, in the order named, and if there be none such, to any person, at APPENDIX. 527 his discretion, to appear, at the time and place men- tioned, and show cause why the child should not be committed to the reform school, and upon return of due service of the summons, an investigation shall be had. The section then directs, " If, upon such exam- ination, such judge shall be of opinion that said boy or girl is a proper subject for commitment to the re- form school, and that his or her moral welfare, and the good of society, require that he or she should be sent to said school for employment, instruction, and reformation, he shall so decide, and direct the clerk of the court of which he is judge to make out a warrant of commitment to said reform school, and such child shall thereupon be committed." Section 9 of the Act of 1863 directs that all per^ sons between six and sixteen years of age convicted of crime, punishable by fine or imprisonment, who in the opinion of the court woidd be proper subjects for com- mitment, shall be committed to said school. Section 10 authorizes the confinement of the chil- dren, and that they " shall be kept, disciplined, in- structed, employed, and governed," until they shall be reformed and discharged, or shall have arrived at the age of twenty-one years, and that the sole authority to discharge shall be in the board of guardians. The facts were that the relator's son, Daniel O'Con- nel, a boy of fourteen, was committed to the reform school, under the provisions of the acts above^uoted, by a warrant from one of the judges of the superior court, setting forth that the said Daniel had "been found by competent evidence to be a proper subject for commitment to the said reform school, and whose moral welfare and the good of society require that he should be sent to said school for instruction, employ- 528 TALKS ABOUT LAW. ment, and reformation." The only question raised was the power of the legislature to pass the acts under which the boy was committed to the school. The opinion of the court was delivered by Thoenton, J. (after stating the facts). " The war- rant of commitment does not indicate that the arrest was made for a criminal offence. Hence, we conclude that it was issued under the general grant of power to arrest and confine for misfortune. The contingencies enumerated, upon the happening of either of which the power may be exercised, are vagrancy, destitution of proper parental care, mendicancy, ignorance, idle- ness, or vice. Upon proof of any one, the child is deprived of home, and parents, and friends, and con- fined for more than half of an ordinary life. It is claimed that the law is administered for the moral welfare and intellectual improvement of the minor, and the good of society. From the record before us we know nothing of the management. We are only informed that a father desires the custody of his child, and that he is restrained of his liberty. There- fore, we can only look at the language of the law, and the power granted. " What is proper parental care ? The best and kindest parents would differ, in the attempt to solve the question. Scarcely any two agree ; and when we consider the watchful supervision which is so unremit- ting over the domestic affairs of others, the conclusion is forced upon us, that there is not a child in the land who could not be proved, by two or more witnesses, to be in this sad condition. Ignorance, idleness, vicC) are relative terms. Ignorance is always preferable to error ; but, at most, is only venial. It may be general, APPENDIX. 529 or it may be limited. Though it is sometimes said that ' idleness is the parent of vice,' yet the former may exist without the latter. It is strictly an absti- nence from labor or employment. If the child per- form aU its duties to parents and society, the state has no right to compel it to labor. Vice is a very compre- hensive term ; acts, wholly innocent in the estimation of many good men, would, according to the code of ethics of others, show fearful depravity. What is the standard to be ? What extent of enlightenment, what amount of industry, what degree of virtue will save from the threatened imprisonment ? In our solicitude to form youth for the duties of civil life, we should not forget the rights which inhere both in parents and children. The principle of the absorption of the child in, and its complete subjection to the despotism of the state, is wholly inadmissible in the modern civilized world. " The parent has the right to the care, custody, and assistance of his child. The duty to maintain and pro- tect it is a principle of natural law. He may even justify an assault and battery in the defence of his children, and uphold them in their lawsuits. Thus the law recognizes the power of parental affections, and excuses acts which, in the absence of such a relation, would be punished. Another branch of parental duty, strongly inculcated by writers on natural law, is the education of children. To aid in the performance of these duties, and enforce obedience, parents have au- thority over them. The municipal law should not dis- turb this relation except for the strongest reasons. The ease with which it may be disrupted under the laws in question, the slight evidence required, and the informal mode of procedure, make them conflict with 34 630 TALKS ABOUT LAW. the natural right of the parent. Before any abridg- ment of the right, gross misconduct, or almost total unfitness on the part of the parent, should be clearly- proved. This power is an emanation from God, and every attempt to infringe upon it, except from dire necessity, should be resisted, in aU well governed states. In this country, the hopes of the child, in re- spect to its education and future advancement, are mainly dependent upon the -father ; for this he strug- gles and toils through life ; the desire of its accom- plishment operating as one of the most powerful incentives to industry and thrift. The violent abrup- tion of this relation would not only tend to wither these motives to action, but necessarily, in time, alien- ate the father's natural affections. " But even the power of the parent must be exer- cised with moderation. He may use correction and re- straint, but in a reasonable manner. He has the right to enforce only such discipline as may be necessary to the discharge of his sacred trust, only moderate cor- rection and temporary confinement. We are not gov- erned by the Twelve Tables, which formed the Roman law. The Fourth Table gave fathers the power of life and death and of sale over their children. " In this age and country, such provisions would be atrocious. If a father confined or imprisoned his child for one year, the majesty of the law would frown upon the unnatural act, and every tender mother and kind father would rise up in arms against such monstrous inhumanity. " Can the state, as parens patricB, exceed the power of the natural parent, except in punishing crime? These laws provide for the ' safe keeping ' of the child ; they direct his ' commitment,' and only a APPENDIX. 531 ' ticket of leave,' or the uncontrolled discretion of a board of guardians, will permit the imprisoned boy to breathe the pure air of heaven outside his prison walls, and to feel the instincts of manhood, by contact ■with the busy world. The mittimus terms him 'a proper subject for commitment,' directs the superin- tendent to 'take his body,' and the sheriff indorses upon it, ' executed by delivering the body of the within named prisoner.' The confinement may be from one to fifteen years, according to the age of the child. Executive clemency cannot open prison doors, for no offence has been committed. The writ of habeas corpus, a writ for the security of liberty, can afford no relief, for the sovereign power of the state, as parens patriae, has determined the imprisonment be- yond recall. Such a restraint upon natural liberty is tyranny and oppression. " If, without crime, without the conviction of any offence, the children of the state are to be thus con- fined, for the ' good of society,' then society had bet- ter be reduced to its original elements, and free gov- ernment acknowledged a failure. In cases of writs of habeas corpus to bring up infants, there are other rights beside the rights of the father. If improperly or illegally restrained, it is our duty ex debito justitioB to liberate. The welfare and rights of the child are also to be consiclered. The disability of minors does not make slaves or criminals of them. They are en- titled to legal rights, and are under legal liabilities. An implied contract for necessaries is binding on them. The only act which they are under a legal in- capacity to perf oran is the appointment of an attorney. All their other acts are merely voidable or confirm- able. They are liable for torts, and punishable for 532 TALKS ABOUT LAW. crime. Lord Kenyon said : ' If an infant commit an assault, or utter slander, God forbid that lie should not be answerable for it, in a court of justice.' Every child over ten years of age may be found guilty of crime. For robbery, burglary, or arson any minor may be sent to the penitentiary. Minors are bound to pay taxes for the support of the government, and constitute a part of the militia, and are compelled to endure the hardships and privations of a soldier's life in defence of the Constitution and the laws, and yet it is assumed that to them liberty is a mere chimera. It is something of which they may have dreamed, but have never enjoyed the fruition. Can we hold chil- dren responsible for crime ; liable for their torts ; im- pose onerous burdens upon them, and yet deprive them of the enjoyment of liberty without charge or conviction of crime ? The Bill of Rights declares that ' aU men are by nature free and independent, and have certain inherent and inalienable rights, among which are life, liberty, and the pursuit of happiness.' " This language is not restrictive, it is broad and comprehensive, and declares a grand truth that ' all men ' — aU people everywhere, have the inherent and inalienable right to liberty. Shall we say to the chil- dren of the state, you shall not enjoy this right, a right independent of all human laws and regulations ? It isj declared in the Constitution, is higher than constitu- tion and law, and should be held forever sacred. " Even criminals cannot be convicted and impris- oned without due process of law — without a regular trial according to the course of the common law. Why should minors be imprisoned for misfortune ? Desti- tution of proper parental care, ignorance, idleness, and vice are misfortunes — not crimes. In all criminal APPENDIX. 683 prosecutions against minors for grave and heinous offences, they have the right to demand the nature and cause of the accusation, and a speedy public trial by an impartial jury. All this must precede the final commitment to prison. Why shoidd children, only guilty of misfortune, be deprived of liberty without ' due process of law ' ? It cannot be said that in this case there is no imprisonment. This boy is deprived of a father's care, bereft of home influences, has no freedom of action, is committed for an uncertain time, is branded as a prisoner, ma^de subject to the wiU of others, and thus feels that he is a slave. " Nothing could more contribute to paralyze the youthful energies, crush all noble aspirations, and unfit him for the duties of manhood. Other means of a milder character, other influences of a more kindly nature, other laws less in restraint of liberty, would better accomplish the reformation of the depraved, and infringe less upon inalienable rights. " It is a grave responsibility to pronounce upon the acts of the legislative department. It, is, however, the solemn duty of the court to adjudge the law, and guard, when assailed, the liberty of the citizen. The Constitution is the highest law : it commands and protects all. Its declaration of rights is an express limitation of legislative power, and as the laws under which the detention is had are in conflict with its pro- visions, we must so declare. " It is therefore ordered that Daniel O' Connel be discharged from custody." In the American Law Register for June, 1871, may be found an extended discussion and approval of the above decision by one of the most eminent of judges and legal writers, the late Isaac F. Redfield. 634 TALKS ABOUT LAW. Probably the most recent decision to the same effect is State v. Ray} The report, omitting the abstract of briefs, is as follows : — STATE ex. rd. MORRIS CUNNINGHAM, Plff., v. JOHN 0. RAY. 1. A statute which authorizes a justice of the peace to commit to the industrial school a minor under the age of seventeen years, upon a complaint charging a crime with respect to which the jurisdiction of the justice only extends to requiring the accused to recognize with sureties for his appearance at court, is in conflict with art. 15 of the Bill of Eights. 2, Where minors under sixteen years of age are brought hefore a justice of the peace, upon a complaint charging them with burglary, a crime punishable by imprisonment in the state prison for a term of years, an order requiring them to recognize for their appearance be- fore the supreme court exhausts the authority of the justice ; and a f lu-ther order committing them to the industrial school till respect- ively attaining their majority is null and void. Habeas corpus. The relator is father of John Cunningham, aged sixteen years, and of Eddie Cun- ningham, aged thirteen years, who were arraigned upon a complaint for burglary before a justice of the peace, June 10, 1884, and pleaded not guilty. After an examination, the justice ordered them to recognize in the sum of f 1 00 each, with sureties, for their ap- pearance at the October term of this court, but im- mediately thereafter, upon the application of the state's counsel, under chap. 287, § 14, and without the consent of said minors or their friends, the justice revoked the order to recognize, refused to take bail, and sentenced John to the industrial school for two years and Eddie for three years, and issued a mitti- mus for their commitment, which was executed June 12th. 1 63 N. H. 406 ; New England Reporter for October 20, 1885. APPENDIX. 535 At this term, Ray, as Superintendent or the Indus- trial School, having produced them before the court, on a writ of habeas corpus issued upon the relator's petition, a hearing was had and they were discharged, on the ground that the justice had no jurisdiction to impose the sentence aforesaid, and the defendant ex- cepted. Smith, J., delivered the opinion of the court. " ' When any minor under the age of seventeen years charged with any offence punishable by impris- onment otherwise than for life, shaU be convicted and sentenced accordingly, or shall be ordered to recognize for his appearance at the supreme court, the court or justice, upon application of such minor, his friends, or the state's counsel, may order that, instead of such imprisonment or recognizance, the said minor may be sent and kept employed and instructed at the reform school for such term, not less than one year, nor ex- tending beyond the age of twenty-one years, as said court shall judge most for his true interest and ben- efit, provided he shall conduct himself according to the regulations of said school ; and a copy of such order shall be sufficient authority for his commitment and detention at such school.' G. L. chap. 287, § 14. By Laws 1881, chap. 37, the name of the institution was changed to the industrial school. Under the au- thority of this statute the relator's minor sons, one of the age of thirteen and the other of the age of sixteen years, have been sent to the industrial school for the terms of three and two years respectively, neither hav- ing been convicted of any crime or offence. They were brought before a justice of the peace upon a complaint charging them with having committed the crime of burglary, — a crime of the gravest character 536 TALKS ABOUT LAW. and punishable by imprisonment in the state prison for a long term of years. The crime was one which the magistrate had not jurisdiction to determine, but only to inquire if just cause appeared to hold the ac- cused to answer at the supreme court. They were heard upon no other charge than that set out in the complaint, and were not in law required to defend against any other. An order was made requiring them to recognize for their appearance before the su- preme court. So far the justice had jurisdiction. At this stage of the proceedings, the counsel for the state moved for an order that the accused be sent to the in- dustrial school, and the justice, declining the offer of the accused to recognize agreeably to the order then just made by him, issued an order committing them to the school for the terms above-mentioned. The com- mitment was not for the purpose of securing their ap- pearance at the supreme court, for the shortest term for which they might be sent to the school would ex- tend much beyond the next term of the supreme court. If they were committed as a punishment for having committed the crime of burglary, they have never been tried or convicted of that crime by the judgment of their peers. Article 15 of the Bill of Rights provides that ' No subject shall be arrested, imprisoned, despoiled, or deprived of his property, im- munities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land.' This clause in our Constitution is a transla- tion from Magna Carta, and dates from 1215. Its meaning has become fixed and well determined, ' and asserts the right of every citizen to be secure from all arrests not warranted by law.' ^ 1 Mayo V. Wilson,! N. H. 53, 57. APPENDIX. 537 "It guarantees the right of trial by jury in all cases where the right existed at common law in this state at the adoption of the Constitution. That a person charged with having committed the crime of burglary is entitled to a jury trial has never been questioned. As the justice only had jurisdiction to inquire and not to convict, the accused have had no trial. Provision is, and ever since the adoption of the Constitution has been, made by statute for a trial by jury of every crime indictable by a grand jury, and of every offence where an appeal is taken from the judgment of a jus- tice or police court. Final judgment cannot be en- forced for the commission of any police offence, how- ever trivial, until the appellant has been convicted by a jury of his peers. If the relator's sons were sent to the industrial school for some other crime or offence, it was one of which they have never been convicted, and in violation of article 15 of the Bill of Eights, which provides that ' No subject shall be held to an- swer for any crime or offence until the same is fully and plainly, substantially and formally, described to him, or be compelled to accuse or furnish evidence against himself. And every subject shall have a right to produce aU proofs that may be favorable to himself to meet the witnesses against him face to face, and to be fully heard in his defence by himself and counsel.' " But the commitment and detention of the relator's sons is justified by the respondent upon the ground that the industrial school is not a prison ; that the or- der of commitment was not a sentence ; and that their detention is not a punishment. The contention is that the industrial school is a part of the school system of the state, and that the state, as parens patricB, may detain in the school such scholars as may need its dis- 538 TALKS ABOUT LAW. cipline. If it is a privilege to be admitted a member of the school, it is a privilege limited to ' offenders against the law.' At no time since its institution, in 1855, have its doors been open to the admission of any other class of scholars. Its advantages have not been offered to every minor under the age of seventeen years who might desire to enter, or whose parents or guardian might seek to place him there. The relator's sons were sent to the school, either because they had committed some crime or offence, or because the jus- tice judged it to be for their 'interest and benefit' to be placed there. For whichever of these causes they were committed the commitment was illegal. As already remarked, they have never been convicted of the crime of burglary, and they have not been tried or had any opportunity to defend against any other charge. If the order for their commitment was made because the justice judged it to be for their ' interest and benefit,' the answer is, that he had no authority by statute to commit them for that cause. Whenever a court or a justice may send a minor to the school, he may fix the term during which he may be kept at the school at not less than one year nor extending beyond the age of twenty-one years, as the court or justice ' shall judge most for his true interest and benefit.' The limit of his stay or confinement in the school is determined by the consideration of what shall be ' most for his true interest and benefit,' but the stat- ute does not confer upon the court or justice the power to send a minor to the school solely for the reason that the court or justice may be of opinion that it may be for the interest or benefit of the minor to be sent there. The original name of the school — - House of Reforma- tion for Juvenile and Female Offenders against the APPENDIX. 539 Laws ' (Laws, 1855, cliap. 1660), indicated the char- acter of the institution. The act provided that any boy under the age of eighteen years, or any female of any age, ' Convicted of any offence known to the laws of this state, or punishable by imprisonment, other than vsuch as may be punished by imprisonment for life,' might be sentenced to the house of reformation. Ibid. § 4. At no period in its history could a person become an inmate of the institution, unless, being within the prescribed age, he or she had been con- victed of a crime or offence. The only exception is the unconstitutional provision inserted in the Revision of 1867,-' authorizing a justice to send to the school a minor less than seventeen years of age whom he shall have ordered to recognize for his appearance at the supreme court. We cannot ignore the fact that in the public estimation the school has- always been re- garded as a quasi penal institution, and the detention of its inmates or scholars as involuntary and con- strained. The great purpose of the institution was the separation of youthful offenders from hardened criminals of mature years, in the hope of their ulti- mate reformation, and of their becoming useful citi- zens. But the fact cannot be overlooked that the de- tention of the inmates is regarded to some extent as a punishment, with more or less of disgrace attached on that account. If the order committing a minor to the school is not a sentence, but the substitute for a sentence, as claimed by the respondent, what is a sub- stitute for a sentence but a sentence in and of itself ? It is worthy of remark that the legislature has not undei-taken to authorize the commitment of a minor to the industrial school upon the mere presentment of the grand jury. 1 Gen. Stats, chap. 2, § 14j G. L. chap. 287, § 14. 540 TALKS ABOUT LAW. " In this case the relator, the natural guardian of his sons, has been deprived of their care, nurture, educa^ tion, and custody, against his consent, and without any- trial or hearing to which he was a party, upon the ground, and only ground, that the justice found there was just cause to require them to appear at the su- preme court to answer further. If he is not a suitable person to have the care and education of his children, that fact has not been found, nor does it appear that their education has been neglected. But how far he is entitled to be heard upon that question we do not decide. We have only alluded to the matter as show- ing what consequences may flow from the unlawful commitment of a minor to this school. Where the com- mitment is lawful the loss by the parent of his cus- tody of his child follows as one of the incidents for which there is no remedy, and perhaps in many in- stances, because of his unfitness, there ought to be none. " It is further deserving of consideration that the relator's sons, if indicted for the crime of which they were charged before the justice, cannot plead autrefois convict, although they may remain at the school the full term for which they were sentenced ; and if their detention at the school is a punishment, they are liable to be punished twice for the same offence, in violation of the fundamental maxim, ' Nemo debet his puniri,^ etc. Broom's Legal Max. 348. In coming to this con- clusion we have not overlooked the decisions in other States. Milwaukee Industrial School v. Supervisor Milwaukee County, 40 Wis. 328; S. C. 22 Am. Kep. 702 ; M'Lean Co. v. Humphreys, 104 lU. 378 ; Petition ofFerrier, 103 Bl. 367 ; S. C. 42 Am. Rep. 10 ; Both V. House of Refuge, 31 Md. 329 ; Ex parte Grouse, 4 Whart. (Pa.) 9. APPENDIX. 641 " In these cases, the detention of abandoned, or de- pendent, depraved children in houses of refuge or in industrial or reform schools, is upheld upon the ground that the power of magistrates and county courts to commit, and of such institutions to detain, such chil- dren, is ' Of the same character of the jurisdiction exercised by the court of chancery over the persons and property of infants, having foundation in the pre- rogative of the crown, flowing from its general power and duty as parens i^atrioe. to protect those who have no other lawful protector. 2 Story, Eq. Jur. 1333 ' (Sheldon, J., in Petition of Ferrier, supra), or, as stated in Ex Parte Crouse, supra, ' May not the nat- ural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriae or common guardian of the community ? ' As to the soundness of the reasons given in these cases we have nothing to say. No one of them is an authority for the commitment of a minor charged with the commis- sion of a crime to such an institution, without some kind of a trial and conviction. " The People v. Twner, 55 111. 280 ; /S. C 8 Am. Eep. 645, was an application by the father for a writ of habeas corpus, for the discharge from a reform school of his minor son. .A statute of Illinois author- ized the commitment to a reform school of children between six and sixteen years of age, who are ' va- grants, or destitute of proper parental care, or are growing up in mendicancy, idleness, or vice,' ' to re- main until reformed, or until the age of twenty-one years.' The relator's son, committed to the school under this statute, was discharged, the commitment being held not to h^ve been for any criminal offence, and the statute was declared unconstitutional. His 642 TALKS ABOUT LAW. confinement was held to be imprisonment without due process of law. Thornton, J., said : ' Such a restraint upon natural liberty is tyranny and oppression. . . . If a father confined or imprisoned his child for one year, the majesty of the law would frown upon the un- natural act, and every tender mother and kind father would rise up in arms against such monstrous in- humanity. Can the state, as parens patriae, exceed the power of the natural parent, except in punishing crime ? ' " In Commonwealth v. Horregan^ it was held that certain statutes relating to juvenile offenders, so far as they purport to give inferior tribunals jurisdiction of offences punishable by infamous punishment, are unconstitutional. " A statute of Ohio, authorizing the grand jury, where a miuor under the age of sixteen years is charged with crime, and the charge appears to be supported by evi- dence sufficient to put the accused upon trial, instead of finding an indictment, to return to the court that the accused is a suitable person to be committed to the house of refuge, and directed the court thereupon to order his commitment without trial by jury. The statute was declared constitutional. Prescott v. State, 19 Ohio St. 184 ; S. C. 2 Am. Rep. 388. " The decision is put upon the ground that the case ' is neither a criminal prosecution nor a proceeding ac- cording to the course of the common law, in which the right to a trial by jury is guaranteed. The proceed- ing is purely statutory, and the commitment, in cases like the present, is not designed as a punishment for crime, but to place minors of the description, and for the causes specified in the statute, under the guardian- 1 127 Mass. 450. APPENDIX. 543 ship of the public authorities named, for proper care and discipline, until they are reformed or arrive at the age of majority. The institution to which they are committed is a school, not a prison ; nor is the char- acter of their detention afEected by the fact that it is also a place where juvenile convicts may be sent, who would otherwise be condemned to confinement in the common jail or penitentiary.' The statute further provided that in case cause for the child's detention shall be inquired into by a proceeding in habeas cor- pus, it shall be a sufficient return to the writ that he was committed to the guardianship of the directors of the school and that the period for his discharge had not arrived. It is intimated, in the opinion of the court, that it is questionable whether this provision can operate to restrict the power of the court, invested by the Constitution with jurisdiction in habeas corpus, from inquiring fuUy into the cause of the detention of a person restrained of his liberty. " With due respect for the learned court who pro- nounced this opinion, we are not convinced of the soundness of the reasoning or conclusion. The pro- ceedings by which the accused was adjudged a suitable person to be committed to the house of refuge were conducted in secret, without his knowledge or consent, or that of his parent or guardian, with no opportunity to be represented by counsel, to be confronted with and cross-examine the witnesses for the prosecution, or to produce witnesses in his own behalf. The liberty of the minor during the term of his minority, which might be for a period of many years, was made to de- pend upon the deliberations of a secret tribunal. A judg^ent rendered upon such an ex parte hearing is as little calculated to command the respect of the com- 644 TALKS ABOUT LAW. munity as the proceedings of the ancient court of the Star Chamber. And so far as the other cases cited are like the Ohio case in legal effect, we cannot follow them. Whether what has been called a trial in other jurisdictions in cases of this class is a trial within the meaning of our Constitution, and whether on any other ground than that of a charge of crime the legislature can authorize minors or persons of age to be commit- ted to the industrial school without a trial by jury, if it were claimed, and without the consent of parent or other guardian, are questions on which we give no "opinion. Persons poor, and standing in need of re- lief, may and must be cared for by the overseers of the poor, and may be sent to the almshouse for sup- port; but their detention cannot be regarded as in- voluntary. They are in no sense deprived of their lib- erty without the judgment of their peers or against the law of the land. They are neither criminals nor charged with the commission of crime, and this pro- vision of the Constitution was not understood by its framers as restricting the power of the legislature to provide for the relief of the worthy poor. So children of profligate parents, or with vicious surroundings, may be taken from the custody of their natural guar- dians and committed to the guardianship of those who will properly care for their moral, intellectual, and physical welfare.^ " But this is a power exercised by the state as ■parens patrice, in the welfare and interest of its citi- zens. 2 Story, Eq. Jr. § 1333. " The common-law principle of reasonable necessity has an extensive constitutional operation ; Aldrich v. Wright, 53 N. H. 398, 399, 400 ; Haley v. Colcord, ' Priin V. Foote, supra. APPENDIX. 545 59 N. H. 7, 8; Hophins v. Dichson, 59 N. H. 235; Johnson V. Perry, 56 Vt. 703; State v. Morgan, 59 JN. H. 322, 325; and in many cases authorizes the restraint of an insane person ; Colby v. Jackson, 12 N. H. 526 ; Davis v. Merrill, 47 N. H. 208 ; O ' Con- nor V. Buchlin, 59 N. H. 589, 591 ; Kelleher v. Put- nam, 60 N. H. 30 ; Hinchman v. Richie, Bright. (Pa.) 143 ; Fletcher v. Fletcher, 1 E. & E. 420 ; Bushnell, Insanity, §§ 19, 24; even when he is committed to an asylum upon a defective process. Shuttle-worth's case, 9 A. & E. (N. S.) 651. " But a magistrate's power to commit to the indus- trial school, for detention during minority, every per- son under the age of seventeen years, charged with but not convicted of an offence, punishable with im- prisonment otherwise than for life, on the ground of the ' true interest and benefit ' of the accused, does not come within any constitutional idea of reasonable necessity that has prevailed in this state. For his interest and benefit, the magistrate might as well be authorized to send him to the state prison as to the industrial school, or any other penal institution. " We are of opinion that so much of § 14, chap. 287, G. L., as authorizes a justice of the peace to com- mit to the industrial school a minor under the age of seventeen years, upon a complaint charging him with the commission of a crime of which the justice has jurisdiction only to require him to recognize for his appearance at the supreme court, on the motion of the state's attorney, and without the consent of any person authorized to bind the magistrate by consent, is in violation of article 15 of the BiU of Rights. " Exceptions overruled." Blodgett, J., did not sit ; the others concurred. 35 646 TALKS ABOUT LAW. APPENDIX B. Chaptee XXV. — Persons non Compos. I HAVE used this technical phrase as the title of this chapter because it has no exact and concise equiv- alent in the English language. In its singular form, non compos, it is familiar to every one, and has become so far Anglicized that it is sometimes used as an English adjective phrase qual- ifying an English plural noun. Although this usage may possibly be open to grammatical criticism, I have followed it, as the plural form, non compotes, is com- paratively unfamiliar to English readers and would be Greek to those who know nothing of Latin. INDEX. Act op God, 374. Actions, choice of, 296, 451, 458 ; forms of, seal, 329 ; limitations of, 320, 328, 337, 340, 343, 422 ; surviTal of, 460 ; for negligence, 458. Agent, implied authority of wife as, 170 ; cannot deal with himself, 298 ; execution of sealed instrninent hy, 328 ; signature of, 339 ; partner an, 353 ; agency defined, 356 ; powers of agent, 356 ; implied agency, 170, 177, 357; cannot pawn goods, 358; public agent, 358 ; contract of agency, 358 ; custom of, 359 ; delegation of trust, 359 ; Hens of, particular and general, 360 ; termination of agency, 360. Alien Enemy, husband an, 165 ; contracts with, 298. Anglo-Saxon Invasion, character and consequences of, 3 ; laws and customs affected by Northmen, 4 ; by Normans, 5 ; criminal law, 99 ; system of police, 100. Arrest, in civil causes, 31, 33, 93 ; in criminal, 43, 473. Assignment, of debts, 326 ; of patents and copyrights, 403. Attachment, of real estate and immovable property, 31, 417, 420 ; of personal property, 31, 427 ; exemptions from, 31 ; receipt or bond to dissolve, 32 ; of interest in partnership, equitable process, 352. BaU, 34, 44, 326. Bailments, every-day transactions, 362 ; defined and illustrated, 362 ; care, negligence, 364 ; lost goods, 369 ; pawning, 369 ; expenses in- cident to bailments, 370, 371 ; brokers, 371 ; locatio, 371 ; liens, 372; payment for keeping when goods are destroyed, 372; inn- keepers, 372; common carriers, 372, 374; of passengers, 376; baggage, 376 ; telegraph companies, 377. Bank Bills, 349. Benefit of Clergy, claims of Roman Catholic, Church, 106; its struggle wdth the English government, 106 ; assassination of Thomas h Becket, 107 ; benefit of clergy established, 107 ; exten- sion of the privilege to clerks, 107 ; to all who could read, 108 ; a New Hampshire case, 109 ; privilege for second offence confined 648 INDEX. to clergymen, 109 ; presiunptioii in favor of a cardinal, 110 ; for- feiture of goods and chattels, 110 ; ofEences on the high seas, 111 ; noblemen, 111 ; abolition of the privilege, 111. Bets, 310. Betterments, 265, 418. Bills of Exchange. See Negotiable Paper. BUls of Sale, 316. Blue Laws, 105. Borrowing and Lending. See Bailments. Bribery, 312. Brief, 28, 85. Brokers, marriage, 313 ; right to sell, 371. Chancery. See Equity. Checks. See Negotiable Paper. Christ, teachings of, respecting divorce, 150, 159. Civil Law, as distinguished from criminal law, 30. Civil or Roman Law. iSee Roman Law. Clerks of Court, 20. Comity of Nations, 14, ]2'7, 142, 310, 319. Common Carriers, 372, 374. Common Law, origin and growth of, Chapters I. and XI., also pp. 308, 508 ; the peculiar prominence which it gave to land, and the complex and technical nature of its rules relative to the same, 6, 404 ; its growth and development relative to personal property and commercial affairs in the eighteenth century, 7; particular customs, 10 ; ancient and obsolete statutes as a part of the com- mon law, 8, 10, 513 ; courts of, 13 ; as to husband and wife, see Husband and Wife ; rights of authors and inventors, 394. Consideration, 303, 328, 332, 368 ; failure of, 308, 322. Constitutional Law, state and national constitutions in the United States, their character and paramount authority, 12, 511 ; relative to contracts, 114 ; to state records, 142 ; to levying duties, 265 ; to patents and copyrights, 394 ; to imprisonment, 202, and Appendix A. Contracts, of minors, see Minors ; of maiTied women, see Husband and Wife; of lunatics, idiots, etc., see Persons Non Compos; charter of private corporations a contract with the state, 275 ; law of con- tracts, its wide application, 294 ; contracts divided into simple and special, 294 ; contracts of record, 295 ; executed and executory, 113, 295 ; exprass and implied, 295 ; implied by law, 295, 168, 451 ; " takes two to make a bargain," 296 ; when a contract takes effect, 114, 297; contracts by mail and telegraph, 297; mental and legal capacity, 298, also Persons Non Compos, Husband and Wife, Mi- nors ; alien enemies, 298 ; mistake, 115, 124, 302, 322, 328, 388, INDEX. 649 383; consideration, 303 ; failure of, 308 ; illegal contracts, 137, 308 ; bribery, 312 ; in restraint of marriage, 313 ; marriage brokerage, 313 ; in restraint of trade, 313 ; monopolies, trade secrets, 314 ; both parties in faidt, 314; "possession nine points in law," 315; bills of sale, 316 ; deliyery, 315 ; stoppage in transitu, 316 ; con- ditional sales, 317 ; implied warranty of title, 318 ; implied warranty of quality, sales by sample, 318 ; express warranty, 318 ; comity of nations, 310, 319 ; interpretation of contracts, 320 ; oral evidence to vary terms of written contracts, 322 ; statute of frauds, 70, 322 ; contracts under seal, 8, 282, 327, 354, 419 ; contracts of guaranty, 341 ; of partnership, 351, 354 ; of agency, 358 : of bail- ment, 364; of insurance, 378, 381, 383; assignment of contracts, 382 ; concealments, 385 ; engagements to marry, 113 ; marriage, 113, 146; fraud, 115, 124, 299, 303, 319, 322, 328, 338, 383, 385, 392 ; duress, 117, 298, 322, 328 ; jurisdiction of equity in regard to, 302, 419, 504. Copyright. See Patents, Copyrights, and Trade-Marks. Corporations, defined and described, 251 ; in what sense governments are, 252 ; distinction between public and private, 253, 274 ; func- tions, towns and cities compared with those of counties, 253 ; American cities representative governments in nainiature, 254 ; usual powers of, 255 ; extraordinary powers of, 257 ; ultra vires, 256, 283 ; city ordinances, when valid, 260 ; powers of municipal corporations to borrow and spend money, 264 ; taxation, 264 ; bet- terments, 265 ; aid to railroads, 267 ; limitations of municipal in- debtedness, 268 ; division of towns, counties, etc. , 269 ; does not extend to trust funds, 270 ; the New England town, 270 ; origin and services of modem municipalities, 271 ; ancient origin of pub- lic and private corporations, 275; United States "The Land of Corporations," 276 ; their service in developing the country, 276; corporations divided into aggregate and sole, 277 ; into ecclesias- tical and lay, 278 ; lay into eleemosynary and civil, 278 ; incidents to corporations, 282 ; contracts under seal, 282 ; criminal prosecution of corporations, 283 ; eminent domain, 284 ; exemption of stock- holders from liability, 289 ; visitation, 290 ; origin and creation of corporations, 291 ; immortality, dissolution, 252, 292; legacies to corporations, 447. Costs, 94. Courts, definition, 13 ; various kinds and powers of, 13 ; of common law, 13 ; of record, 14 ; Supreme Court of the United States, 15, 62, 84; English House of Lords, 85; judges termed "The Court," 17 ; officers of courts, see Judges, Lawyers, Clerks, Sher- iffs, and Marshals ; fixed places for holding courts, 84 ; law terms, 84 ; general powers to determine law and overrule precedents, 85 ; rules of court, 90. 550 INDEX. Criminal Law, as distinguished from civil, 30 ; arrest without pa- pers, 43 ; complaint and warrant, 44 ; preliminary examination, 44 ; bail, 44 ; indictment, grand jury, 44, 483 ; powers and re- sponsibilities of prosecuting officer, 46; why proceedings before grand juries are secret, 48 ; informations, 48 ; refusal to plead, 49; costs, 94; youth, coverture, insanity, intoxication, etc., as de- fences, see Minors, Husband and Wife, Persons Non Compos ; pros- ecution of corporations, 283 ; seal on warrant, 329 ; punishments, historical sketch of, Chapter XIII. ; libel, 452 ; nuisance, 457 ; criminal offence defined, 462 ; offences divided into treasons, felo- nies, and misdemeanors, 462 ; the word ' ' treason, ' ' 462 ; Statute of Edward III. , 462 ; treasonable levying of war, 463, 470 ; public enemy, 466 ; treason from Richard II. to George III. , 467 ; pim- ishment for treason, 468 ; petty treason, 469 ; treason under the United States Constitution, 469 ; felony and misdemeanor defined, 472 ; justifiable and excusable homicide, 472 ; right to take life in self-defence, 474; in defence of family and home, 475; man- slaughter, 476; murder, 477; duelling, 480 ; suicide, 482; accessa^ ries, 482 ; murder in first and second degrees, indictment, 483 ; deodands, 484 ; assaults, 485 ; larceny or theft, 488, 371 ; embez- zlement, 488, 496 ; malicious mischief, 489, 500 ; burglaiy, 493 ; robbery, 495 ; forgery, 496, 335 ; cheating, 498 ; arson, 499. Custom, 8, 344, 346, 359, 363. Damages, assessment of in defaulted actions, 37; in actions for se- duction, 456 ; generally in actions of tort, 459 ; exemplary dam- ages, 460. Default, 37, 134. DeUvery, 315. Demand,' 343. Deodands, 484. Divorce, from bed and board, 129 ; absolute, 130, 148 ; of an inter- mediate character, 131 ; causes for divorce, 130, 154, 157 ; law fa- vors marriage and discourages divorce, 134, 139; methods of procedure, 131, 137 ; alimony, custody of children, 138 ; domicile, jurisdiction of court, 139 ; a common species of swindling, 140 ; de- cree valid where rendered, valid everywhere, 142 ; distinction be- tween divorce and decree of nullity, 127, 143. Divorce Question, diversity of law and opinion, 144 ; alarm caused by increasing number of divorces, 144 ; various positions, 145 ; first and second, alleged scriptural prohibitions, 145 ; third and fourth positions, the medium ground, 154 ; fifth, sixth, and seventh posi- tions, 157 ; should divorce free the guilty party ? 161 ; abuse of divorce laws, 161 ; greater uniformity of statutes needed, 162. INDEX. 651 Dower, 171. Drafts. See NegotiaWe Paper. Duress, a£Eecting the marriage contract, 118, 124; afEeeting con- tracts in general, 298, 322, 328 ; affecting wills, 441. Easements, 284, 423, 435. Emblements, 430. Eminent Domain, 284. Employer and Employ^, use of these terms, 225 ; hiring, 226, 325 ; unfulfilled contracts for service, 226 ; notice to quit, 228 ; seduc- tion of servant, 229 ; holidays and fair weather, 229 ; breaking tools, etc., 229; accidents, 230. Equity, its origin and growth, 11, 502; forms of proceedings, 57, 506 ; divorce suits in, 127 ; protection of children, 180, 503 ; pro- tection of married women, 173 ; money lent minor for necessaries, 235 ; will not enforce a sharp trade, 302 ; smt to compel convey- ance, 303, 419, 504; suit on lost note or bill, 337; dissolution of partnership in interest of individual creditors, 353 ; mortgages, equity of redemption, 415 ; protection to licensee, 425 ; injunctions, 502, 507 ; powers in regard to accident, mistake, fraud, duress, 504 ; trusts and settlements, 504 ; general limits of its province, 505 ; power to make its decrees respected, 507. Evidence, auditor's report, 57; production of evidence at trial, 61; judicial notice, 64 ; presumptions, 64 ; four fundamental rules — es- sential allegation, substance of issue, burden of proof, best evi- dence, 67 ; hearsay, 68 ; professional communications, 69 ; state se- crets, 70 ; matters required to be in writing or under seal, 70, 322 ; pecuniary interest and marital relations, 71 ; familiarity with the rules of evidence, 71 ; exceptions, 73 ; seal of notary prima facie evidence, 421. Executions, 93. Feudal System, 405. Fixtures, 425, 429. Flowage acts, 286. Forgery, 335, 496. Fraud, affecting the marriage contract, 115, 124 ; affecting contracts in general, 299, 319, 322, 328, 338, 383, 385, 392; affecting baU- ments, 364, 370, 376 ; fraudulent mortgages, 417 ; criminal frauds, 498. Future Support, mortgage for, 417. Good-Wm, 313, 352, 504. Grace, days of, 9, 344. 552 INDEX. Grand Jury, 44, 59. Gratuitous Service, 304. Guardian and Ward, husband ^ardian of wife's person at common law, 166; guardianship defined, 186; kinds of, at common law, 186 ; under statutes, 187 ; guardians of the person, 166, 171, 179, 188 ; of the estate, judicially appointed, their duties and responsi- bilities, 188, 296 ; of insane persons, 244, 249. Heirs at Law, unborn child, 319, 419 ; illegitimate children, 185 ; heirs, heirs apparent, and heirs presumptive, 439 ; advancements, 440 ; inheritance of real estate, 440. Husband and Wife, existence of wife merged in that of husband, 164, 174, 298 ; his rights to her property, 125, 165, 174 ; to be the guar- dian of her person, 166, 174; his responsibility for her conduct, 167, 174 ; when she is presumed to be incapable of crime, 66, 167, 174, 483 ; husband's liability for wife's debts, 168, 174 ; his duty to maintain her, 168, 174, 296, 326 ; necessaries, 169, 296 ; implied agency of wife, 170; property rights of widow, 125, 171, 174 ; hus- band's right to the children, 138, 171, 180; husband and wife as witnesses, 71, 172; his right to compensation for injuries to wife, 172 ; protection of wife in equity, 173 ; common law on this subject revolutionized by recent statutes, 173. Idiots See Persons Non Compos. Infants. See Minors. Injunctions, 502, 507. Innkeepers, 372. Insane Persons. See Persons Non Compos. Insurance, defined, 378 ; policy, premium, 378 ; oral contract of, 378 ; various kinds of insurance, 379 ; reinsurance, 380 ; open and valued policies, 381 ; assignment of policy, 381 ; insurance indemnity against direct losses only ; what are direct losses, 382 ; application, statements, concealments, etc. , 383 ; warranty, 383, 391 ; represen- tations, 384 ; duties of insurers, 386 ; De Lancey v. Ins. Co. 387 ; liberal construction of policies, 388, 392 ; wanton recklessness, 391 ; life insurance, suicide, 392 ; insurable interest of creditors and relatives, 393. Jewish Law of divorce, 151. Judges, modes of addressing, 17 ; disabilities of, and exemption from liability for mistakes, 18 ; appointment, election, 18 ; powers and duties of, see Courts. Land, its prominence in our legal system, 6, 404; title, as between INDEX. 553 landlord and tenant, 66; eminent domain, 284; partnersliip land, 354 ; agent's power to sell, 358 ; only its simplest rules here dis- cussed, 405 ; feudal origin of on real estate law, sketch, 405 ; ten- ancy in fee, 410 ; entailed estates, 410 ; life estates, 166, 171, 410 ; waste, 410, 416; chattels real, 165, 411; leases, 70, 411, 429; ten- ancy from year to year, 413 ; at will, 413 ; at sufferance, 413 ; land- lord and tenant acts, 414 ; joint tenancy and tenancy in common, 414 ; estates divided horizontally, 415 ; mortgages, 337, 353, 415 ; for future support, 417; double taxation, 417; ways in which a title may be acquired, 417, 431, 440 ; examination of title, 417, 421 ; deed defined, 419 ; conveyances of land to be witnessed, ac- knowledged, and recorded, 420; acknowledgment before notary public, 421 ; title by possession, 422 ; prescriptive rights, ease- ments, 423 ; way of necessity, 423 ; license, 425 ; border line be- tween real and personal property, illustrations, 425 ; fixtures, land- lord and tenant, 429 ; emblements, 430 ; heirlooms, 430 ; boundaries, 432 ; perambulations, 432, note ; line trees, 434 ; party walls, 435 ; water rights, 286, 434 ; surface water, 436 ; percolating water, springs, 437 ; nuisance, 437 ; cattle, 438 ; accidental fires, 438. Landlord and Tenant. See Land. Lawyers, admission to the bar, 22 ; privileges, powers, and duties of lawyers, 22, 96, 359 ; office one of peculiar trust, 22 ; right and duty, and limitations thereof, to defend those known to be guilty of crime, 23, 96 ; character conducive to professional success, 27 ; dis- tinctions of grade at the English bar, — attorneys, barristers, ser- geants, queen's counsel, 27; wigs and gowns, 17, 29. Libel and Slander, 452. Lien, by attachment, 32 ; of agent, 360 ; of bailee, 372 ; for bail, betterments, taxes, etc., 418. Limitation of Actions, 65, 240, 320, 328, 337, 340, 343, 422. Lost Goods, 369, 489. Lunatics. See Persons Non Compos. Marriage, engagements, 113, 325 ; marriage defined, 113 ; conflict of definitions, 113 ; minds must meet, ceremony a joke or mistake, 114 ; fraud, illustrations, 115 ; duress, 117 ; mental capacity, 118, 124; consent, motive, 118; physical impedimenta, 119, 124; mar- riageable age, 120, 124 ; between relatives, 120 ; voidable and void, 123; polygamous marriages, 126; presumptions in favor of mar- riage, 126, 134 ; comity of nations, 127 ; marriage settlements of minors, 242 ; contracts in restraint of, 313 ; marriage brokerage, 313. Master and Servant. See Employer and Employ^. MiUs and Factories, 285. Minors, age of majority, 233 ; necessaries, 234 ; are any contracts 554 INDEX. Toid on aceount of minority ? 235, 240 ; voidable contracts, 235 ; torts, 240; actions, limitations of, 241; will of chattels, 241 ; mar- riage settlements, 241 ; crimes, 242. Misdemeanors, 168. Mistake, 115, 124, 183, 302, 322, 328, 338, 383. Monopolies, 314. Mortgage, note, 337 ; of partnership interest, 353 ; of land, 417, 420, 429. Necessaries, what are for wife, 169, 296 ; for minors, 234. Negligence, relative to insurance, 378, 383, 391 ; cansing personal in- jnries, 9, 230 ; affecting bailments, 364 ; accidental fires, 438 ; actions for negligence, 458. Negotiable Paper, a suggestion for teachera, 330 ; what negotiable paper includes, 330 ; notes, bills, drafts, and checks defined, 330, 348 ; requisites to a note or biU, 331 ; non-negotiable paper, 332 ; payable to bearer, 333 ; to order, 333 ; overdue paper, 334 ; forged paper, 335 ; given on Sunday, 387 ; lost and stolen paper, 337 ; secured by mortgage, 337 ; informal paper, 337 ; payable to ficti- tious person, 340 ; witnesses to, 340 ; joint and several, 340 ; guar- antors, sureties, 341 ; indorsement and delivery, 342 ; parties to bills and notes, 343, 348 ; maturity, 343 ; demand, protest, notice, 343 ; days of grace, 9, 344 ; oral promise, 345 ; refusal to accept, acceptance, 348 ; bank bills, 349 ; uses of negotiable paper, 349 ; origin of bills of exchange, 350. Normans, effects of the Conquest upon our law, 5 ; severity of their forest and other laws, 101. Northmen, effects of their invasions npon our law, 4. Notary Public, 421. Nuisance, 256, 258, 437, 457. Parent and Child, no parental obligation at common law to maintain child, 176 ; statutory obligations, 178 ; not responsible for torts of child, 167, 178 ; conditional right to earnings of child, 179; to con- trol religious and secular instruction, 179 ; father's rights paramount to those of mother, 138, 171, 180; his right to give child away, 180 ; to bind out, 181 ; to emancipate, 181 ; to disinherit, 183 ; il- legitimate children, 185 ; advancements to children, 440. Partnership, inconveniences of a large, 279 ; quasi partnerships, 289 ; objecta of partnership, 351 ; definitions of, 351 ; division of profits and losses, 351 ; firm name, 352 ; dormant partnera, 352 ; limited partnership, 352; liability for firm debts, 280, 353, 355; a confi- dential relation, 353 ; general and special, 354 ; oral contract of, 354 ; in writing, under seal, 354 ; dissolution, 353. INDEX. 555 Patents, Copyrights, Trade-Marks, common law rights of authors and inyentors, 394; law on this subject; United States constitutional and statute law, 394 ; patent defined, 394 ; term of, 395 ; foreign- ers excluded, 395 ; what can be patented, 395 ; procuring a patent, 397 ; fees, 398 ; caveat, 398 ; abandonment and new proceedings, 398 ; statute law respecting copyright, 399 ; fees, 400 ; term of, 400 ; not issued to foreigners, 400 ; what may be copyrighted, 400 ; private letters, 402 ; republication of articles sold by author, 402 ; assignment of patents and copyrights, 403 ; trade-marks, 408. Pawn or Pledge, 358, 369. PencU, 324, 446. Persons Non Compos, treatment of in ancient times, 243 ; in the Middle Ages and in modern times, 243 ; subdivisions of persons not of sound mind, 244 ; difference between an idiot and a, lunatic, 244 ; idiots, 244 ; lunatics and monomaniacs, 245 ; when capable of making a valid will, 245 ; of committing crime, 245 ; irresistible impulse, 247 ; moral insanity, 247 ; delirium tremens, 248 ; intoxication, 248 ; contracts of insane persons, 118, 238, 248 ; lucid intervals, 249 ; guardianship of the insane, 249 ; confinement of, when acquitted of crime, 250 ; insanity of partner, 355 ; of principal, 360 ; suicide, life insurance, 392. Pleadings, object of, 36, 40 ; defined, 36 ; declaration, 37 ; plea, 37 ; dilatory pleas, — to the jurisdiction, in suspension, in abatement, 87; pleas in bax, general issue, special traverse, confession and avoidance, 38 ; counter pleas, 39 ; matters excluded from pleadings, the issue, 39 ; demurrer, 40 ; advantages and disadvantages of the system, 36, 40 ; pleadii^ in criminal causes, 49. Presumptions, 64, 183, 243. Promissory Notes. See Negotiable Paper. Public Enemy, 374, 466. Pulpit and Pew, Ruf us Choate and the Methodists, 205 ; frequency of church lawsuits, 205 ; parties to them, 205 ; diversity of sects, 206; leading forms of church government, 206; congregational polity, 207 ; church and state in colonial times, 209 ; effect of Massa- chusetts and other decisions, 210 ; trust funds, 212 ; settling and dis- missing mmisters, 221 ; clergymen, 222 ; title to church property, 223 ; pews, 223. Punishments, historical sketch of, 98 ; in American colonies, 104 ; "Blue Laws," 105; privilege of sanctuary, 101 ; treason, 468; larceny, 492 ; malicious mischief, 501. Eailways, municipal aid to, 267 ; delegation of right of eminent do- main to, 284, 286. Eeoord, courts of, 14, 142; pubUc records, 142, 353, 420, 556 INDEX. Reports, 86, 509. Boman or Civil Law, basis of law among Latin races, 1 ; never thor- oughly naturalized in ancient Britain, 3 ; partial adoption by Anglo- Saxons, 4 ; an element of our ancient common law, 4 ; of Norman law, 5 ; struggle to introduce into England near close of Dark Ages, 6 ; makes little distinction between real and personal property, 6 ; distinguished from common law, 30 ; basis of our law of bailments, 365 ; innkeepers, 372 ; a guide in modem decisions, 86 ; Roman law of divorce, 151 ; of guardianship, 181 ; element in equity iurispm- dence, 11, 505. Sales, on condition, 317 ; implied warranty of title, 318 ; of quality, 318 ; by sample, 318 ; of partnership interest, 353 ; of unpublished writings, etc., 402 ; terminating tenancy at will, 413. Salvage, 304. Seal, 8, 66, 282, 327, 354, 419, 442, 497. Seduction, 229, 456. SherifB, office of, 20 ; return of, 85, 93 ; service of writ, 31 ; duty to assist bail, 45. Signature, 324, 328, 339, 340. Spirituous Liquors, 310, 319. Statute of Frauds, 70, 322. Statute Law, a source of common .aw, 8, 10, 513 ; interpretation of, 126, 512 ; afEecting husband and wife, 173 ; minor children, 178 ; contrast between common and statute law, 508 ; power and jurisdic- tion of Parliament, 510 ; of state legislatures, 511 ; of Congress, 511 ; importance of statute law, legislative reforms, 513. Stoppage in transitu, 316. Sunday, 35, 45, 309, 315, 337, 344. Teacher and Pupil, absence and tardiness, 191 ; general exercises, courses of study, and text-books, 193 ; corporal punishment, 198 ; legal sphere of teachers and committees, 198 ; power to suspend and exclude, 200 ; superior authority of committee, 201 ; are school di- rectors judicial officers ? 201 ; reform schools, schools or prisons ? 202, also Appendix A. Telegraph Companies, 377. Torts, arrest for, 34 ; groundless arrest, 43 ; liability of husband for torts of wife, 167, 178 ; none of parent for torts of child, 178 ; by domestic animals, 178; of employers for negligence, 230; of mi- nors, 240 ; seduction, 229, 456 ; frauds, see Fraud ; negUgenee, see Negligence ; definition of torts, 449 ; examples of, 449 ; subdivi- sions of, 451 ; libel and slander, 452 ; nuisance, 457 ; exemplary damages, 460 ; survival of actions of, 460 ; breaking and entering, trespass, 493. INDEX. 557 Trade-Marks. See Patents. Trade Secrets, 314. Trial, by ordeal, 51 ; by wager of battle, 52 ; by wager of law, 56 ; pres- ent modes of, 57 ; origin and history of trial by jury, 58 ; opening statement, 60, 62 ; examination of witnesses, 61 ; arguments, 62 ; charge, 62 ; verdict, 62 ; exceptions, 73 ; inexperience of jurymen, 75 ; want of time for consideration, 75 ; prejudice, 76 ; expensive- ness of the system, 76 ; wearisome to counsel, 77 ; disadvantages of trial by jury summed up, 77 ; advantages, brilliant field for advo- cates, 78 ; its abolition would create a privileged class, 78 ; condu- cive to purity and progress, 80 ; a school for citizenship, 81 ; practi- cal justice, 81 ; "a palladium of liberty," 82. United States Marshal. See SberifE. Warranty, 318, 342, 357, 383. Waste, 410, 416. Water. See Land. 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