Olnrti^U ICam Btl^mi ffilibratg KF 352.A75T97"""""'""'"^'' Two centuries' growth of American law 1 3 1924 018 821 565 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018821565 pale QBtcentennial l^ublicattonjs TWO CENTURIES' GROWTH OF AMERICAN LAW gale OBicentennial publications TVith the approval of the President and Fellows of Yale University^ a series of volumes has been prepared by a number of the Professors and In- structors^ to be issued in connection with the Bicentennial Anniversary^ as a partial indica- tion of the character of the studies in which the University teachers are engaged. This series of volumes is respectfully dedicated to E\)t (Svanmtti of tlje tKnttiErfiftts TWO CENTURIES' GROWTH OF AMERICAN LAW 1701-1901 BY MEMBERS OF THE FACULTY OF THE YALE LAW SCHOOL NEW YORK : CHARLES SGRIBNER'S SONS LONDON : EDWARD ARNOLD 1901 Copyright, 1901 By Yale University Published, September, igor UNIVERSITY PRESS • JOHN WILSON AND SON • CAMBRIDGE, U. S. A. CONTENTS Page Table of Cases cited from the Law Rbpokts .... ix Chapter I. Introduction. By Simeon E. Baldwin .... 1 II. Constitutional Law. By Simeon E. Baldwin . 9 III. Real Property. By George E. Beers .... 48 , IV. Contract. By William Frederic Foster ... 6G V. Torts. By George D. Watrous 83 VI. Equity. By Edwin B. Gager 115 VII. Mortgages of Real Property. By Edtvin B. Gager 153 VIII. Wills. By Leonard M. Daggett 167 IX. Municipal Corporations. By Henry Wade Rogers 203 X. Private Corporations. By Simeon E. Baldwin 261 XL Pleadings in Civil Actions. By Simeon E. Baldwin 313 XII. Evidence. By David Torrance 319 XIII. Criminal Law and Procedure. By James H. Webb 344 XIV. Patents. By William K. Townsend 391 XV. Copyrights. By William K. Townsend . . . 422 XVI. Trade-marks and Unfair Trade. By William K. Townsend 435 XVII. Admiralty. By William K. Townsend .... 448 XVIII. International Law. By Theodore 8. Woolsey . 491 Index 523 TABLE OF CASES CITED FROM THE LAW REPORTS N. B. Each case is insevted twice in this table : once with the names of the parties, as arranged in the reports, and again in the reverse order; e. g., Doe v. Roe would be cited under D, as Doe v. Koe, and iigain under R as Roe, Doe v. Abbott V. riumbe 336 Abercorn, The 47] Adams & Lambert's Case 267 Adula, The 487 Albany Perforated Wrapping Pa- per Co., Morgan Envelope Co. v. 410 Albert Dumois, The Alcorn, Columbia Mill Co. v. Alexander, Dunmore v. AUgeyer v. Louisiana Aline, The Allen „. Flood 91, 105, 476, 481 441 72 36 462 106, 108, 109, 110 Ailing, Sherlock v. 471 Amadie, The 505 Amelie, The 470 American Bell Telephone Co., United States v. 416 American Book Co., Doan w. 432 American Pibre Chamois Co. v. DeLee 439 American Insurance Co. v. Canter 40 American Waltham Watch Co. v. U. S. Watch Co. 444 American Washboard Co. '.'. Saginaw M'fg Co. 447 Ames, Smyth w. 141,295 Amoskeag M'fg Co. v. Tramer 440 Angle V. Chicago, etc. Ry. Co. 104 Howarth v. 293 Annie Faxon, The 476 Antelope, The 505 Anthonr v. Household Sewing Machine Co. 287 Arkell, Eeardon v. 471 Arrison, Commonwealth v. 281 A.shford v. Thornton 348 Athenian, The 467 Atkinson i: John E. Dogherty & Co. 97 Atlantic Works v. Brady 415 Atlas Steamship Co., Calderon v. Atlee V. Packet Co. Attrill, Huntington v. 478, 479 4.55 294 B Baker v. Norwood 36 Selchow V. 439 V. Selden 430 Thornbrongh v. 155 Balfour, Oregon Railway Co. v. 475 Balliet v. Cassidy 92 Bank of Augusta v. Earle 273, 281 Bank of Columbia i'. Patterson 68, 284 Bank of England, Dolder v. 264 Bank of North America v. Vardon 268 Bank of the U. S. v. Dandridge 290 Fleckner v. 290 Banks, Gould n. 433 Barbed Wire Patent, The 404 Barber u. International Co. of Mexico 294 Barclay v. Russell 264 Barnes v. Ontario Bank 284 Barrett, Welch v. 325 Baseley, Huguenin v. 1 27 Bate Hefrigerating Co. o. Sulzberger 410 Bayard u. Singleton 24 Beatty v. Marine Insurance Co. 284 Beckett, Donaldson v. 424 Beckwith, Ecclesiastical Society of South Farms in Litchfield u. 259 Bed Co., Keeler v. 417 Beer Company v. Massachusetts 42 Belfast, The 453 Bell V. Bell 44 Bell Telephone Co., United States v. 135 Bemis, Fuller v. 428 Benedict, Hollister v. 402 Benefactor, The 475 TABLE OF CASES Benham, Reddaway v. 445 Benito Estenger, The 485 Bennett v. Boston Traveler Co. 431 Bentzon v. Boyle 495 Bermuda, The 486 Bernard, Coggs v. 100 Betsey, The 484 Bidwell, Downes v. 40 Birmingham Brass Co., Jackson v. 409 Blacker, McPherson v. 28 Blake, Perrin v. 191 V. San Francisco 408 Blanchard v. Hill 435 Bleisteiu v. Donaldson Lith. Co. 429 Blessing, Leathers f. 457 Blodgett & Clapp Co., Rowe v. 431 Bolt, De Lovio v. 449, 450,451, 452, 481 Bold Buccleugh, The 461, 462 Bolton, Singleton v. 435 Boston, Hill !,•. 219,220 Proprietors of iVIount Hope Cemetery v. 259 Boston Steamship Co.. Butler v. 466 Boston Traveler Co., Bennett v. 431 Boston & Worcester R. R. Co., Farwell v. 102 Bosville, Glenorchy v. 126 Botany Mills, Knott v. 479 Botsford u. Wallace 317 Boutwellw. Marr 110 Bowen v. Hall 104 Boydeu Power Brake Co., West- inghouse v. 411 Boyer, Ex parte 454, 480 Boyle, Bentzon v. 495 Brace v. Duchess of Marlborough 155 Brady, Atlantic Works v. 415 Braerg v. Fitch 408 Brailsford, Georgia v. 17 Brierfield Coal & Iron Co., Hol- lins V. 291 Brig Malek Adhel, United States v. 458 Britton v. White Mfg. Co. 431 Broughel v. Southern N. E. Tel. Co. 95 Broughton v. Manchester Water Works Co. 284 u. Pensacola 255, 289 Brown Chemical Co. c. Meyer 440 V. Sterns 439 Brunswick Gas Light Co. v. United Gas Co. 287 Buena Ventura, The 488 Bulkeley v. Derby Fishing Co. 284 Bull, Calder v. 45 Burnett v. Phalon 439 Burrow-Giles Lith. Co. v. Sarony 429 Bushel !'. Commonwealth Ins. Co. 281 Butler V. Boston Steamship Co. 466 Cahill V. Eastman 99 Calder v. Bull 45 Calderon v. Atlas Steamship Co. 478, 479 California Fig Syrup Co., Wor- deu V. 440 Calvert's Lessee v. Eden 206 Campbell's Appeal 54 Canal Co. v. Clark 441 Canter, American Insurance Co. v. 40 Carib Prince, The 478 Carrington v. Taylor 108 Gary, LoveU Manufacturing Co. o. 401 Casborne v. Scarfe 155 Cassidy, Balliet v. 92 Caswell V. Davis 439 Caton, Commonwealth v. 24 Central Transportation Co. v. Pull- man's Palace Car Co. 287 Charles River Park v. Warren Bridge 297 Chattahoochee, The 479 Chemical Works, Theasbey v. 439 Chicago, etc. Ry. Co., Angle v. 104 Chicago Gas Trust Company, People V. 292 Chicago, Milwaukee & St. Paul R. R. Co. V. Clark 70 China, The 470,471,473 Church V. Inhabitants of the 'Town of Norwich 259 Circassian, The 485 City of Louisville v. University of Louisville 258 City of Norwalk 481 City of Norwich, The 475, 476 Clailin v. Houseman 28 Clark, Canal Co. r. 441 Chicago, Milwaukee & St. Paul R. R. Co. V. V. County of Litchfield Field V. Town of Pawlet v. Waring v. Clymer, Norris v. Coggs V. Bernard Colgate V. Western Union Tele. graph Co. Collector, The, v. Day CoUyer, Smith v. Columbia Mill Co. v. Alcorn Comanche County i'. Lewis Commissioners, Robey v. Commonwealth v. Arrison u. Caton u.. Plaisted i;. Roxbury Commonwealth Insurance Co., Bushel V. 281 70 259 37 258 451, 479 26 100 403 42 112 441 289 38 281 24 46 13 TABLE OF CASES XI Conroy, New Eng. R. R. Co. r. 103 Consolidated Pruit Jar Co. v. Wright 409 Continental Ins. Co., Craig v. 476 Cook V. Fountain 121 Johnson v. 148 Corbin, Re 405 Corsair, The 481 Council, People v. 45 Coxe's Lessee, McIlYaine v. 495 Craig V. Continental lus. Co. 476 Crane y. Price 403 Creager, Potts «. 403 Crofut V. Danbury 281 Cumming, Nat Protect. Ass'n u. 110 D Daly V. Webster 428 Danbury, Crofut v. 281 Dandridge, Bank of the U. S. v. 290 Dauforth, State v. 362 Daniel v. Mayor and Aldermen of Memphis 254 Daniels, Morgan v. 412 Dann, St. John v. 193 Dartmouth College v. Woodward 28, 81, 253, 254, 258, 279, 294 Davenport v. Lacou 60, 61 Davies, p]merson v. 430 V. Lowndes 324 Davis, Caswell u. 439 Dawson, Row v. 127 Day V. Spiral Spring Buggy Co. 287 The Collector v. 42 Debs, Tn re 113 Delafield, Parish v. 180 Delaware, The 477, 479 Delaware, Lack. & Western R. R., Forepaugh v. 30 De Lee, American Fibre Chamois Co. V. 439 De Lovio V. Boit 449, 450, 451, 452, 481 Dennis v. Moses 45 Denny, State v. 38, 46, 290 Derby Fishing Co., Bulkley v. 284 Derry v. Peek 90 De Smet, The 460 Ditson u. Littleton 433 Doan V. American Book Co. 432 Doane, Penhallow v. 451 Dodge, Griggs v, 195 Dogherty, John E. & Co., Atkin- son V. 97 Dolder v. Bank of England 264 Donaldson v. Beckett 424 Falk V. 429 Lith. Co., Bleistein v. 429 Donoghue, Hanley v. 44 Dooley v. United States 40 Dorrance, Van Home's Lessee v. 25 Dowues V. Bidwell 40 Draper, People v. • 38 Dredge Newport, The 470 Druid, The 457 Du Bon, Rickard v. 405 Duchess of Marlborough, Brace v. 155 Duell, United States v. 412 Duff y. Sterling Pump Co. 408 Duke of Somerset, Peachy v. 146 Dulauy v. Wells 17 Dummer, Wood v. 290 Dunbar, White v. 408 Dundridge, Pennsylvania Naviga- tion Co. V. 285 Dunham, Insurance Co. v. 453 Dunmore y. Alexander 72 Dunphy, Moran y. 105, 109 E Eagle, The 471, 480 Eagle Manufacturing Co., Miller y. 406 Eakin y. Raub 25 Earl of Chesterfield v. Janssen 127 Earle, Bank of Augusta v. 273, 281 V. Sawyer 395 Eastman, Cahill v. 99 East Montpelier, Montpelier y. 254 Ecclesiastical Society of South Farms in Litchfield i;. Beckwith 259 Edgerton v. Mayor 482 Eden, Calvert's Lessee v. 2O6 Egbert v. Greenberg 428 V. Lippmaun 409 Elfrida, The 469 Elibank v. Montolieu 126 Elizabeth v. Pavement Co. 409 Ellison y. Ellison 126 Ely, New York Firemen's Insur- ance Co. V. 285 Emerson v. Davies 430 Emily Souder, The 470 Esterbrook, Gillott v. 440 Eureka Spec. Co., Heaton-Penin- sular Button-Fastener Co. y. 411 Euripides, The 472 Faber v. Faber Reckendorfer y. Fairbank v. Luckel Falk V. Donaldson y. Gast 441 402 446 429 426 Farnum, Hancock National Bank V. 44, 294 Farwell v. Boston & Worcester R. R. Co. 102 Xll TABLE OF CASES Faulkner v. Hart 30 Fenton Manufacturing Co., OflBce Specialty Manufacturing Co. v. 402 Field V. Clark 37 Fietsam v. Hay 294 Fish V. Smith 44, 293 Fitch, Bragg; v. 408 Fleckner v. Bank of the United States 290 Fleischman v. Schnockraann 441 Fletcher, Rylands v. 99 Flood, Allen v. 91, 105, 106, 108, 109, 110 FoUiott, Ogdeu i'. 17 Fong Yue Ting v. United States 38 Forepaugh v. l>el. Lack. & West- ern R. R. 30 Fortuna, The 505 Fountain, Cook «. 121 Fowler, Priestly «. 101, 102 Fox, United States v. 42 Frank G. Fowler, The 461 Frankfort Company, Heather v. 269 Freeman, I'asley v. 89 Frith, Mactier v. 72 Frorer v. People 36 Frost V. Leighton 19 Fuller V. Bemis 428 Gaudy v. Main Belting Co. 403 Gardner v. New Jersey 453 Garland, The 468 Garrett, Meriwether v. 257 Gast, Falk v. 426 Gaylord, International Tooth Crown Co. v 409 General Smith, The 463 Genesee Chief, The 453, 454, 473 George Farwell, The 458 Georgia <;. Brailsford 17 Gerard v. Willan 206 Gettysburg Electric Street Rail- way Co., United States v. 39 Gillott V. Esterbrook 440 Glendale, The 481 Glenorchy v. Bosville 126 Glide, Th'e 462, 464, 480 Goodwin v. Robarts 74 Goodyear, Smith v. 403, 409 Goshen v. Stonington 45 Gould V- Banks 433 Grant v. Raymond 421 Grapeshot, The 40, 458 Gratitude, The 460 Gray v. Paxton 283 V. Portland Bank 284 Great Western, The 476 Greenberg, Egbert v. Greenwood v. Westport Griggs V. Dodge Guestier, Hudson v. Guiding Star, The Gye, Lumley v. H 428 482 195 33 462 104 Hagar v. Reclamation District Hailes V. Van Wormer 296 402 Hall, Bowen v. 1 04 Halleck, 'J'hompson v. 426 Halley, The 471 Hamilton, Pandorf v. 472 Hancock National Bank v. Farnum 44, 294 Hanifeu v. Price 393 Hanley v. Donoghue 44 Hardy, Holden v. 35 Harmer v. Playne 394 Harper v. Shoppell 431 Harringworth, The King v. 335 Harris, Howard v. 154 Harrisburg, The 481 Harrison, Maynard v. 432 Hart, Faulkner v. 30 Harvey, Marble Co. u. 287 Hatfield, Parker v. 414 Haughey w. Lee 417 Hay, Fietsam v. 294 Head v. Providence Insurance Co. 280, 284 Hearns v. Waterbury Hospital 288 Heather v. The Frankfort Company " 269' Heaton-Peniiisular Button-Fastener Co. V. Eureka Spec. Co. 41 1 Heinrich Bjorn, The 457 Henry Bill Publishing Co. v. Smythe 432 Hiberma Insurance Co. v. St. Louis Transportation Co. 292 Hickeringill, Keeble v. 108 Higgins, Loom Co. u. 403 Higham v. Ridgway 305 Hill, Blanehard v. 435 V. Boston 219, 220 Hill Mfg. Co., Providence & N. Y. Steamship Co. v. 475 Hine r. Trevor 464, 480 Hoboken Co., Murray v. sg Hogg V. Kirby 435 Holden v. Hardy 35 HoUins «. Brierfield Coal & Iron Co. 291 ■ Hollister v. Benedict 402 Holmes v. Hurst 425 427 '41O Wallace v. V. Walton 24 TABLE OF CASES Xlll Home Savings Bank, National Home Building Association v. 287 Hood V. New York & New Haven R. R. Co. 286 Hook, Payne v. 140 Horton, Newport v. 46 Household Sewing Machine Co., Anthony v. 287 Houseman, Claflin v. 28 Howard u. Harris l.')4 Howarth v. Angle 293 Howland & Allen, United States v. 140 Hnbbell i\ United States 408 Hudson V. Guestier 33 Huggins, Rex v. 358 Hughes, Rann v. 69 Huguenin v. Baseley 127 Hulme V. Tennaut 126 Huntington v. Attrill 294 Hurlbut, People v. 38 Hurlburt, Town of Waterbury v. 260 Hurst, Holmes v. 425, 427 Hutchins v. Hutchins 109 Huttley V. Simmons 109 Hygeia Distilled Water Co. u. Hy- geia Ice Co. 444 Hygeia Ice Co., Hygeia Distilled Water Co. v. 444 Immannel, The 511 Imperial Chemical Co. v. Stein 405 Inhabitants of the Town of Nor- wich, Church V. 258 Inland and Seaboard Co. v. Tolson 100 Insular Cases 40 Insurance Co. v. Durham 453 International Co. of Mexico, Barber r. 294 International Tooth Crown Co. v. Gaylord 409 Iriii, The 459, 470 Irrawaddy, The 478 Island City, The 468 Italia, The 472 J. E. Rnmbell, The 462, 482 J. W. Tucker, The 460, 467 Jackson v. Birmingham Brass Co. 409 Jannsen, Earl of Chesterfield v. 127 Ja-son's Case 154 Jepson, Phelps u. 59 John G. Stevens, The 461, 466 Johnson v. Cook 148 V. Mason 3.36 Smith V. 414 Joint Traffic Association United States V. 292 Jones V. New Haven 288 Julow, State v. 36 June Co., Singer v. 442 444 June Manufacturing Co., Singer Manufacturing Co. u. 410 K Kate, The 469 Keeble v. HiekeringiU 108 Keeler v. Bed Co. 417 Keene v. Kimball 426 Kelsey Elec. Ky. Spec. Co., Thomp- son-Houston Elec. Co. «. 411 Kensington, The 479 Kimball, Keene v. 426 King, The, v. Harringworth 335 V. Mead 326 Kirby, Hogg v. 435 Knapp V. Morse 400 State V. 363 Kuight Co., E. C, V. United States 292 Knott V. Botany Mills 479 Kohl V. United States 40, 53 Ki'iug V. Missouri 385 La Compagnie Generale Tians- atlantique 473 Lacon, Davenport v. 60, 61 Laidlaw v. Oregon Nav. Co. 481 Lancaster, Morley Machine Co v. 407 L'Anima v. Manwaring 4.53 La Rue, Western Electric Co. v. 403 Lawyers' Co., West Publishing Co. V. 4.14 Leathers v. Blessing 457 Lechmere, Winthrup v. 19 Lee, Haughey v. 417 Mar.sh i'. 155 Leighton, Frost r. 19 Le Neve v. Le Neve 127, 146 Leslie v. Lorillard 286 Letson, Louisville Railroad Co. v. 283 Lewis, Comanche County t>. 289 Linoleum Mfg. Co. o. Nairn 442 Lippmann, Egbert ?'. 409 Litchfield, County of, Clark n. 259 Littleton, Ditson r. 433 Livingston ji. Van Ingen 392 Lloyd, National A at. Device Co 405 Loan Association v. Topeka 45 Lockwood, Railroad Co. v. 478 Loom Co. i>. Higgins 403 Lord Baltimore, Penn v. 127 Lord Barrington, Searle v. 325 XIV TABLE OF CASES Lorillard, Leslie v, 286 Lottawanna, The 464, 473, 480, 482 Louis, Le 505 Louisiana, Allgeyer v. 36 Louisiana State Bank v. New Or- leans Navigation Co. 217 Louisville, City of, v. University of Louisville 258 Louisville Railway Co. «. Letson 283 v. Louisville Trust Co. 283 Louisville Trust Co., Louisville Railway Co. v. 283 Louisville Underwriters, In re 456 Lovell Manufacturing Co. v. Cary 401 Lowndes, Davies v. 324 Luckel, Fairbank v. 446 Ludgate Hill, The 458 Lumley v. Gye 104 M Mactier v. Frith 72 Madisou, Marbury v. 25, 32 Maggie Hammond, The 473 Magowan v. N. Y. Co. 404 Main, The, v. Williams 474 Main Belting Co., Gandy v. 403 State V. 28 Manchester Water Works Co., Broughton v. 284 Manwaring, L'Anima v. 453 Marble Co. v. Harvey 287 Marbury v. Madison 25, 32 Maria, The 51 1 Marine InK^iurance Co., Beatty v. 284 Marr, Boutwell v. 110 Marsh v. Lee 155 Trimm v. 158 Marsland, Nichols v. 99 Maryland, McCuUoch v. 39 Mason, Johnson v. 336 Massachusetts Bay, Province of, v. Paxton 260 Massachusetts, Beer Co. v. 42 Mast, Foos & Co. v. Stover Mfg. Co. 400 Max Morris, The 455 May V. Wood 105 Maynard v. Harrison 432 Mayor, Edgerton v. 482 V. St.ite 46 Workman v. 457, 482 Mayor, etc. of Bradford v. Pickles 107 Mayor, etc., of Memphis, Daniel v. 254 McClain v. Ortmaver 404 McCulloch ". Maryland 39 McCuUongh, Pickering v. 401 McGregor et ah., Mogul Steam- ship Co. V. 105 Mcllvaine v. Coxe's Lessee 495 McKim V. Odom McNamee, Wilson v. McPherson v. Blacker Mead, Palmer v. The King v. 307 471 28 162 326 Medart, Risdon Locomotive Works V. 411 Medley, Petitioner 374 Merchants' Insurance Co., Tay- loe V. 72 Meriwether v. Garrett 257 Merrill v. MonticeUo 281 Merry, Wilson v. 103 Metcalf, Wrentham Proprietors v. 260 Meyer, In re 478 Meyer, Brown Chemical Co. v. 440 Miller i\ Eagle Manufacturing Co. 406 V. Taylor 425 Milwaukee, Town of, v. City of Milwaukee 258 Minnesota, Stearns v. 43 Mississippi, Stone v, 42 Williams v. 37 Missouri, Kring v. 385 Mitchell V. Rome 61 Mobile V. Watson 289 Mogul Steamship Co. v. Mc- Gregor et ah. 105 Monongahela Navigation Co. v. United States 294 Monroe, Press Publishing Co. v. 425 MonticeUo, Merrill v. 281 Montolieu, Elibank v. 126 Montpelier v. East Montpelier 254 Moore v. Quirk 42 V. Transportation Co. 474 V. United States 29 Moores, State v. 46 Moran v. Dunphy 105, 109 Morgan v. Daniels 412 V. N. Y. Building Association 28 Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co. 410 Morley Machine Co. o. Lancaster 407 Morse, O'Reilly v. 404 Knapp V. 400 Moses, Dennis v. 45 Moses Taylor, The 464, 480 Mount Hope Cemetery, Proprie- tors of, V. Boston 259 Murrav v. Hoboken Co. 38 ij.'The South Car. R. B. Co. 102 Muth, Rumford Chemical Works v. 439 N Nairn, Linoleum M'f'g Co. v. 442 National Aut. Device Co. v. Lloyd 405 National Home Building Associa- tion V. Home Savings Bank 287 TABLE OF CASES XV Nat. Protect. Ass 'n «. Gumming 110 Neagle, In re 40 Negro Mary v. The Vestry of William and Mary's Parish in Charles County 260 Negro Tom, Soaper v. 85 Nereid, The 495 New Eng. R. R. Co. u. Conroy 103 New Haven, Jones v. 288 New Jersey, Gardner v. 453 New Orleans Navigation Co., Louisiana State Bank v. 217 Newport v. Hortou 46 New York Building Association, Morgan v. 28 New York Firemen's Insurance Co. V. Ely 285 New York & New Haven R. R. Co., Hood V. 286 Nicholls V. Webb 325 Nichols V. Marsland 99 Smith V. 401 Norris v. Clymer 26 North Star, The 455, 475, 476 Nor. Pac. R. R. Co. v. Peterson 103 Norwalk Street Railway Co., Ap- peal of 38 Norwich, Inhabitants of the Town of. Church v. Norwich Co. v. Wright Norwood V. Baker Nutt, Wright v. N. Y. Co., Magowan v. N. Y. N. H. & H. R. Plumb V. o 259 474, 475 36 17 404 R. Co., 401 O'Brien, People v. 294 u. Tyssen 317 Octavia, The Ship 486 Odom, McKim v. 307 Office Specialty Manufacturing Co. ». Eenton Manufacturing Co. 402 Ogdeu V. FoUiott 17 Ohio & Mississippi R. E. Co. v. Wheeler 283 Olga, The 459, 460 Olinde Rodriguez, The 487 Ontario Bank, Barnes v. 284 Oregon Navigation Co., Laidlaw v. 48 1 Oregon Railway Co. v. Balfour 475 O'Reilly o. Morse 404 Ortmaver, McClain v. 404 Packet Co., Atlee v. Palmer v. Mead 455 162 Panama, The 488 Pandorf v. Hamilton 472 Pantzar v. Tilly Poster I. Mining Co. 103 Paquete, Habana, The 487 Paragon, The 467 Parish v. Delafield 180 Parker v. Hatfield 414 Parsons v. United States 47 Pasley v. Freeman 89 Pasfield Soap Co., Potter Co. u. 446 Patapsco, The 458 Patterson, Bank of Columbia v. 68 284 Pavement Co., Elizabeth v. 409 Pawlet, Town of, v. Clark 258 Paxton, Province of Massachu- setts Bay V. 260 Gray v. 283 Payne r. Hook 140 Peachy v. Duke of Somerset 146 Pedro, The 486 Peek, Derry v. 90 Pelham v. Woolsey 480 Penhallow v. Doane 451 Penn v. Lord Baltimore 127 Pennsylvania Navigation Co. v. Dnndridge 285 Pensacola, Broughton v. 255, 289 People V. Chicago Gas Trust Co. 292 V. Council 45 V. Draper 38 Frorer v. 36 u. Hurlbut 38 V. O'Brien 294 V. Utica Insurance Co. 285 Perrin v. Blake 191 Peterhoff, The 513 Peters, Wheaton v. 52 425 Peterson, Nor. Pac. R. R. Co. v. 103 Phalon, Burnett v. 439 Phelps V. Jepson 59 Philips, Case of Josiah 23 Phyfe V. Riley 158 Pickering v. McCullough 401 Pickles, iMayor, etc. of Bradford v. 107 Pierce, Wells v. 138 Pierce & BushneU M'f'g Co. v. Werckmeister 427 Pillans V. Van Mierop 69 Plaisted, Commonwealth v. 46 Plant V. Woods 109 Playne, Harmer i-'. 394 Plumb V. N. Y., N. H. & H. R. R. Co. 401 Plumbe, Abbott v. 336 Portland Bank, Gray v. 284 Potter Co. V. Pasfield Soap Co. 446 Potts V. Creager 403 Powers, Webb v. 414 Pratt V. Reed 463 XVI TABLE OF CASES Pratt & Whitney Co., Wood- bridge V. Press Publishing Co. v. Monroe Price, Crane v. Hanifen v. Priestly v. Fowler 101, Proceeds of The Gratitude, The Providence Insurance Co., Head y. Providence & N. Y. Steamship Co. V. Hill M'f g Co. Province of Massachusetts Bay v. Paxton Pugh, Quinlan v. Pullman's Palace Car Co., Central Transportation Co. v. Quinlan v. Pugh Quirk, Moore u. Q R Railroad Co. v. Lockwood United States v. Ralli V. Troop Rann v. Hughes Rapid Transit, The Raub, Eakin v. Raymond, Grant v. Reardon v. Arkell Rebecca, The Reckendorfer v. Faber Reclamation District, Hagar v. Reddaway v. Benham Reed, Pratt v. Reeside, The Relfe ». Rundle Republic, The Respublica v. Sweers Rex V. Huggins Rickard v. Du Bon Ridgway, Higham v. Riley, Phyfe v. Risdon Locomotive Works v. Medart Roanoke, The Robarts, Goodwin v. Roberts, Savil w. Robey v. Commissioners Rogers v. Rogers Mfg. Co. Rogers Mfg. Co. v. Simpson Rogers v. Romadka, Sessions v. Rome, Mitchell v. Row V. Dawson Rowe V. Blodgett & Clapp Co. Rowles, Ryall v. Roxbury, Commonwealth v. 292 425 403 393 102 467 280, 284 475 260 476 287 476 42 478 42 482 69 467 25 421 471 474 402 296 445 463 472 293 476 283 358 405 325 158 411 459, 470 74 90 38 441 4-11 441 407 61 127 431 127 13 Rumford Chemical Works v. Muth 439 Rundell v. La Compagnie Ge'n- e'rale Transatlantique 473 Rundle, Relfe v. 293 Russell, Barclay v. 264 Ryall V. Rowles 127 Rylands v. Fletcher 99 Saginaw' Mfg. Co., American Washboard Co. v. 447 Samuel Morris, The 467 Sanders, Walter Baker Co. v. 444 San Francisco, Blake v. 408 Santissima Trinidad, The 484 Sarah, The 464 Saratoga, The 459 470 Sarony, Burrow-Giles Lith. Co . V. 429 Savil V. Roberts 90 Sawyer, Earle v. 395 Saylor v. Taylor 460 Scarfe, Casborne v. 155 Schile, Yuengling v. Schnockmann, Fleischmann v. 429 441 Schuyler v. Curtis 97 Scotia, The 471 ,473 Scotland, The 471 475 Searle v. Lord Harrington 325 Selchow V. Baker 439 Selden, Baker «. 430 Sessions v. Romadka 407 Shankland, Wunch v. 110 Sherlock o. Ailing 471 Shoppell, Harper v. 431 Siegel, Cooper & Co., Wells & Richardson Co. v. 445 Silvia, The 479 Simmons, Huttley v. 109 Simpson, Rogers Mfg. Co. u. 441 Singer v. June Co. 442 444 Singer Manufacturing Co v. June Manufacturing Co. 410 Singleton, Bayard v. 24 V. Bolton 435 Slaughter House Cases 35 Smith V. CoUyer 112 Fish V. 44 293 V. Goodyear 403 409 V. Johnson 414 V. Nichols 401 Smyth V. Ames 141 ,295 Smythe, Henry Bill Publishing Co. V. 432 Souderberg v. The Tow Boat Co. 468 Soaper v. Negro Tom 85 South Car. R. R. Co., The, Murray v. 102 Southard, Tate v. 65 Southern N.E.Tel. Co., Broughel v. 95 TABLE OF CASES XVll Spiral Spring Buggy Co., Day v. 287 Springbok, The 486, 512 Springer Lithographing Co., Werckmeister v. 426 Standard Oil Co., State v. 292 Starr a. Starr 179 State V. Danforth 362 u. Denny 38, 46, 290 f. Jalow 36 e,. Knapp 363 V. Main 28 Mayor v. 46 V. Moores 46 V. Morse 363 V. Standard Oil Co. 292 V. Travelers' Insurance Co. 45 V. Williams 3S, 45, 226, 290 St. Jago de Cuba, The 458, 460 St. John V. Dann 193 St. Lonis Transportation Co., Hi- bernia Insurance Co. u. 292 Steamship Co. u. Tugman 283 Stearns v. ilinnesota 43 Stein, Imperial Chemical Co. v. 405 Sterling Pump Co., Duff v. 408 Sterns, Brown Chemical Co. v. 439 Steven Hart, The 512 Stone V. Jlississippi 42 Stonington, Goshen v. 45 Stonington, Selectmen of the Town of, I!. York 259 Stover Mfg. Co., Mast, Foos & Co. u. 400 Sullivan v. Zeiner 61 Sulzberger, Bate Eefrigerating Co. V. 410 Sweers, Eespublica v. 2 S3 Swift V. Tvson 30 0. Whisen 402 Symsbory Case 24 Tate V. Southard 65 Tayloe v. Merchants' Insurance Co. 72 Tav^lor, Carrington v. 108 " Miller v. 425 Savior V. 460 Te'rrett v. 253, 258 Telephone Cases 404 Tennant, Hulme v. 126 Terrett v. Taylor 253, 258 Theasbey r. Chemical Works 439 Thomas Jefferson, The 453 Thompson v. Halleck 426 Thompson-Houston v. Winchester E. Co. 401 Thompson-Houston Elec. Co. v. Kelsey Elec. Ey. Spec. Co. 41 1 Thombrongh v. Baker 155 Thornton, Ashford v. 348 Tilly Foster I. Mining Co., Pant- zar V. 103 Timor, The 472 Tolsou, Inland and Seaboard Co. v. 100 Topeka, Loan Association v. 45 Tow Boat Co., The, Sonderberg v. 468 Tramer, Amoskeag M'f'g Co. v. 440 Transportation Co., Moore w. 474 Travelers' Insurance Co., State v. 45 Trevett v. Weeden 24 Trevor, Hine v. 464, 480 Trimm et al. v. Marsh 158 Troop, Ealli v. 482 Tugman, Steamship Co. v. 283 Tyson, Swift v. 30 Tyssen, O'Brien v. 317 U United Gas Co., Brunswick Gas Light Co. V. 287 United States v. American BeU Telephone Co. 416 V. BeU Telephone Co. 135 i: Brig Malek Adhel 458 Dooley v. 40 v. Duell 412 V. E. C. Knight Co. 292 Fong Yue Ting v. 38 V. Fox 42 I. Gettysburg Electric Street Eailway Co. 39 V. Howlaud & AUen 140 Hubbell V. 408 V. Joint Traffic Association 292 Kohl V. 40, 53 Monongahela Navigation Co. v. 294 Moore v. 29 Parsons v. 47 I. Bailroad Co. 42 United States Watch Co., Ameri- can Waltham Watch Co. v. 444 Universal Winding Co. c/. WiUi- mantic Linen Co. 391 University of Louisville v. City of LouisviUe 258 Utica Insurance Co., People v. 285 Valencia, The 458, 469 Van Home's Lessee v. Dorrance 25 Van Ingen, Livingston i\ 392 Van Mierop, Pillans v. 69 Van Wormer, Hailes v. 402 Vardon, Bank of North America v. 268 Vestry of William and Mary's Parish in Charles County, Negro Marv V. 260 Virgo.'The 460 xvm TABLE OF CASES W Wallace, Botsford v. ■ 317 V. Holmes 410 Walter Baker Co. v. Sanders 444 Walton, Holmes v. 24 Waring v. Clark 451,479 Warren Bridge, Charles River Park V. 297 Waterbury, Town of, u. Hurlburt 260 Hospital, Hearns v. 288 Watson, Mobile v. 289 Webb, Nichols v. 325 V. Powers 414 Webster, Daly v. 428 Weeden, Trerett v. 24 Welch V. Barrett 325 Wells, Dulany v. 17 V. Pierce 138 Wells & Richardson Co. v. Siegel, Cooper & Co. 445 Werckmeister v. Springer Litho- graphing Co. 426 Pierce & Bushnell Mfg. Co. v. 427 West Publishing Co. v. Lawyers' Co. 434 Western Electric Co. v. La Rue 403 Western Union Telegraph Co., Colgate V. 403 Westinghouse v. Boyden Power Brake Co. 41 1 Westport, Greenwood v. 482 Wheaton v. Peters 52, 425 Wheeler, Ohio & Mississippi R. R. Co. 0. 283 Whisen, Swift v. 402 White V. Dunbar 408 White Mfg. Co., Britton v. 431 Willan, Girard v. 206 William, The 511 Williams v. Mississippi 37 State V. 38, 45, 226, 290 The Main v. 474 Willimantic Linen Co., Uniyersal Winding Co. v. 391 Wilson V. Merry 1 03 V. McNamee 471 Winchester R. Co., Thompson- Houston V. 401 Winthrop v. Lechmere 19 Wood V. Dummer 290 May V. 105 Woodbridge o. Pratt & Whitney Co. 292 Woodland, The 470 Woods, Plant v. 109 Woodward, Dartmouth College v. 28, 81, 253, 254, 258, 279, 294 Woolsey, Pelham v. 480 Worden v. California Fig Syrup Co. 440 Workman v. Mayor 457, 482 Wrentham Proprietors v. Metcalf 260 Wright, Consolidated Fruit Jar Co. V. 409 Wright, Norwich Co. v. 474, 475 V. Nutt 17 Wunch u. Shankland 110 Yarbrough, Ex parte 39 York, Selectmen of the Town of Stonington v. 259 Yuengling v. Schile 429 Zanesville v. Zanesville Telephone, Co. 38 Zanesville Telephone Co,, Zanes- ville V. 38 Zeiner, Sullivan v. 61 TWO CENTURIES' GROWTH OF AMERICAN LAW 1701-1901 TWO CENTURIES' GROWTH OF AMERICAN LAW 1701-igoi INTRODUCTION BY SIMEON E. BALDWIN, M.A., LL.D. Theke are some principles and rules of jurisprudence which are common to all civilized nations. There are others peculiar to those which belong to the same race, or have been in political association. Two such nations are England and the United States, and it is upon English foundations that our law has been mainly built. Nor are we indebted merely to the England of our colonial days. For a quarter of a century at least after the Revolu- tion, whatever progress we made in advancing our system of judicial administration was largely affected by the course of decision in the mother country. This was so, notwithstand- ing strong efforts to withstand such influences. In one State (New Jersey), a law was even passed, in 1799, that no deci- sions made or treatises published in Great Britain after the fourth of July, 1776, should be quoted in any court.^ But neither lawyers nor Judges could be thus forced to shut their eyes to what there was of value in the opinions of Lord Mansfield and his associates on the English bench. Statutes cannot resist national tendencies. It is not the purpose of this volume to describe in any detail what in American law is common to both peoples or 1 Statutes of New Jersey, ed. 1800, p. 436. 1 2 INTRODUCTION to all peoples. It is the differences between nations which especially interest the student of sociology, of history, of government, or of law ; and these pages will be read by no one else. These considerations may serve to explain the selection of particular topics for extended discussion in the following chapters, and the total omission, or brief mention, of others, which might seem of equal or greater importance. To take but a single instance, the general principles of contract are the same for England and the United States, except so far as American law gives them a somewhat wider scope and greater force, by virtue of constitutional guaranties. Two centuries are but a brief period in the history of the human race. During the two, however, to the work of which this volume is confined, Man has come to know, if not himself, at least his power over his surroundings, better than ever before. As they have been crowded with new discoveries in science, so have they been marked by the development of new relations between the people and the government. Nowhere has this re-adjustment of social forces been more marked than in America. Mr. Lecky has said that popular beliefs often change in course of time, not by force of reason so much as because of their incongruity with the spirit of the age. " The general intellectual tendencies pervading the literature of a country profoundly modify the character of the public mind. They form a new tone and habit of thought. They alter the measure of probability. They create new attractions and new antipathies, and they eventually cause as absolute a rejection of certain old opinions as could be produced by the most cogent and definite arguments." In this way American law has from time to time taken color from its surroundings ; but it is to the lasting credit of those who laid its first foundations that not a little of their work still stands firm. This was partly due to their taking a broader view of the relations of the State to the people than that common to INTRODUCTION 3 the Englishmen of their day. They had suffered from too strong a government. They had been oppressed by anti- quated statutes, passed in the interest of classes to which few of them belonged. Some of them had lived for years in countries adhering to the principles of Roman law, and had found that justice could be worked out under them, in some points, quite as well as under those of the common law of England. The clergy, also, were peculiarly influential in early American politics and legislation. They comprehended most of the men of education, and of inherited social position. They knew something of the canon law, and, especially in those colonies where the church and the town were one, made some of its processes and lines of thought familiar to the community. Under these influences the Ainerican law of the seven- teenth century had been shaped. It is the purpose of this volume to show how it has grown and expanded during the two hundred years that have since elapsed. They have been years of immense material growth. They have woven for the world a new order of civilization. They have tended, on the whole, to enlarge the rights both of the State against the individual, and of each individual against every other, thus widening the domain both of public and of private law. There are two reasons for this. The State, so far as most civilized nations are concerned, has come to be essentially the people, and the whole people. There is therefore less jealousy and apprehension on the part of the majority of men as to what it may do. It has been found that orderly co-operation is the law of social life, and that government can be trusted to enforce it in many ways once not contemplated. Public schools and libraries and parks and hospitals rest on this foundation. The mails, the railroads built by seizing land for public use, the lines of telegraph and telephone, all illustrate it. Huxley, in defending the tendency to extend the police power of the modem State against the limitations of "Admin- 4 INTRODUCTION istrative Nihilism," has said that "the higher the state of civilization, the more completely do the actions of one mem- ber of the social body influence all the rest, and the less possible is it for any one man to do a wrong thing without interfering more or less with the freedom of all his fellow- citizens." This has been the cause and the justification of much of what the last two centuries have brought into American law. A growing tendency toward the codification of law has also tended to broaden its field. A code is nothing unless symmetrical. Gaps in previous legislation or judicial deci- sion, must be filled. The whole work must be rounded out and set in order. New York made the first serious advances in scientific codification by her Revised Statutes, adopted in 1827. For nearly two centuries the American colonies and the States which succeeded them had had something in the nature of codes. Lord Bacon's proposition in the House of Commons to codify the laws of England had been made in 1592. In the time of the Commonwealth the task was actually begun, and under the leadership of so great a lawyer as Sir Matthew Hale. The colonists were therefore not unfamiliar with the thought of a complete and orderly arrangement of the law to which they might be subject. Their early codes, however, were partial and fragmentary. The arrangement was often alphabetical. The first code of Connecticut, that of 1650, one of the best passed by any of the colonies, and drawn by a skilled barrister, Roger Ludlow, was of this description, the first titles (after a general declaration of rights, taken from the body of liberties of Massachusetts, enacted there in 1641) being "Abillity, Actions, Age, Arrests, Attachements, Ballast, Barratry, Bills, Bounds of Townes and Particular Lands, Burglarj' and Theft. "^ As time went on, and stat- utes made for particular occasions multiplied, the American codes became mere compilations. Occasionally a thorough revision was attempted ; but it seldom went farther than to ^ Colonial Records of Connecticut, I. 511. INTRODUCTION 5 condense, to improve phraseology, and to supply a few of the most obvious and dangerous defects. That of 1827 in New York, on the other hand, revolutionized the laws of that State as to the tenure of real property, and was a long step forward in the direction of full codification. This, also, was first achieved by the same State. Her code of pleading in civil actions ^ was adopted in 1848, and the leading spirit among those from whom it came, David Dudley Field, turned next to the preparation of a general civil code, which was presented to the legislature some twenty years later. Georgia, at this point, passed New York. She had set several of her ablest men, headed by Howell Cobb, at a similar work, and was the first American State to adopt a civil code. This was in 1860, and her example has since been followed by several of the others, most of them in the Far West. This movement has been strongly opposed, and nowhere with more vigor than in the State where it originated. ^ Per- haps the opposition is not altogether unaffected by what causes most differences among men, — ■ a misunderstanding on one side of the position which is, in fact, taken on the other. Few friends of codification contend that every particular rule of law applicable to the thousand intricacies of human rela- tions that daily perplex the courts can be fully stated in an official exposition of any system of jurisprudence. Few of its opponents can deny that most of these rules can be so stated. Behind every code there must be, originally, or there must soon grow up, a large body of unwritten, cus- tomary law, which the courts can never fail to recognize. A code is a product of evolution. It is also a stage in evolution. This volume is an attempt to sketch the progress of American law, public and private, in the two hundred years 1 See Chapter XI. 2 See James C. Carter's Address before the Virginia State Bar Association on the Provinces of the Written and the Unwritten Law. 6 INTRODUCTION from 1701 to 1901, during which Yale College has been growing into Yale University. It is but an outline sketch. It deals only with the few main heads of a great subject. It is not intended to be technical in its treatment of any of them. If it serves to give the general reader any clearer impression of what the American people have accomplished through these two centuries, in the field of jurisprudence, it will have accomplished all for which its authors hope. It is the contribution of the Law Department of Yale to the series of volumes published in connection with the Bi- centennial anniversary of the foundation of the University or of the collegiate school out of which it has been evolved. Those by whose collaboration the volume has been prepared are all engaged in the work of instruction in the Law School, and each writes on topics which are or have been included in the courses of study under his special charge. Frequent references have been made to judicial decisions contained in the law reports. It is by the aid of such deci- sions that the growth of American law has been mainly attained, and its successive advances definitely marked. No one can understand it who does not rate at their proper worth these contributions to the development of whatever is peculiar to our national life. That this was early felt by the American people is shown by the fact that nearly a hundred years ago they began to provide for the proper record and publication, at the public charge, of all opinions of our courts of last resort. England, since the time of Henry VIII., had left it to private enter- prise. It was not the interest of the crown to increase the audience to which the Judges spoke. But here it was the interest of the people to know precisely what the law was, as fast as it took shape. They were quite as ready, also, to trust their courts as their legislatures to keep the needs of society and the laws of society in harmony with each other. Statutes have no roots. Judicial decisions are seldom with- out them. Statutes spring often from some temporary emer- gency. They are hastily and inconsiderately adopted and, INTRODUCTION 7 serving well or ill their immediate purpose, may fall into desuetude. Judgments are the slow fruit of long-fought controversies between opposing interests. They rest on prin- ciples of right, and if they advance new rules it is only as deductions from these principles, — as new modes of express- ing established truths. This presence in the United States, throughout the last century, of a great and steadily accumulating store of public records, stating the law from day to day as it was actually existing and actually enforced, gives the student of Amer- ican political institutions, or of American history at large, an immense advantage over those engaged in similar researches in other lands. It is accessible to all. It is, so far as it deals with the larger questions of social organization and individual right, intelligible to all. For these reasons free use of it has been made to explain or fortify the positions taken in the pages which follow. The authors of this volume are not insensible of the diffi- culties which must always attend attempts of those who make law their profession to explain it in any of its aspects to those whose pursuits have led them in other directions and perhaps into broader fields. They hope, however, that they have brought together materials which, if the judg- ments or generalizations which they have founded upon them should seem unsound, will serve to correct them, and to aid others in coming to more just conclusions. One who was both a lawyer, a statesman, and a man of affairs has said that lawyers, in treating of jurisprudence, come bound by the fetters of local use and practice, and that it is a science which may be, as a whole, best known by the general student of civil government. "Qui de legibus scripserunt, omnes, vel tanquam philoso- phi, vel tanquam jurisconsulti, argumentum illud tractaverunt. Atque philosophi proponunt multa, dictu pulchra, sed ab usu remota. Jurisconsulti autem, suae quisque patriae legum, vel etiam Eomanarum, aut Pontificiarum, placitis obnoxii et addicti, 8 INTRODUCTION judicio sincere non utuntur, sed tanquam e vinculis sermoci- nantur. Certe cognitio ista ad viros civiles proprie spectat; qui optime norunt, quid ferat societas humana, quid salus populi, quid aequitas naturalis, quid gentium mores, quid re- rumpublicarum f ormae diversae : ideoque possint de legibus, ex principiis et praeceptis, tam aequitatis naturalis, quam politices, decernere."^ Whatever may be true of philosophers, lawyers must frankly accept these criticisms for themselves. They are apt to be technical without knowing it. Their horizon is too often bounded by what is to be seen from their court- house dome. But this volume, as it is limited to a local and national study, is, at least, less open to the main objections taken by Lord Bacon to professionalism in authorship than if its scope were wider. It is simply a statement by American lawyers of the development thus far of American law. I Bacon's Works, ed. of 1803, VII. 438; De Augmentis Sdentiarum, VIII. 3, ad Jin. II CONSTITUTIONAL LAW 1701-1901 BY SIMEON E. BALDWIN, M.A., LL.D. Theke can be no constitutional law where there is no con- stitution. That, to an American, seems to have been the condition of England at the beginning of the two centuries which are the subject of consideration in this volume, and it was hardly less such at their close. In 1701 a grandson of Charles I. was upon the throne, and still another of the Stuart reigns was to follow. The royal veto was interposed to defeat the will of The British Parliament as late as 1707. In the standard edi- tionstitution. tion of Cowel's Interpreter, or Law Dictionary, published at London in 1727, we find under the title King these among other words of description: "He is supra Legem by his absolute Power. Bract, lib. 1, cap. 8. Kitch. s. 8. And although for the better and more equal Course in making Laws, He do admit the three Estates, that is, Lords Spirit- ual, Lords Temporal, and the Commons, unto Council: yet this derogates not from his Power; for whatever they Act, he by his negative Voice may quash. See concerning this Smith de Rep. Anglor. lib. 1, cap. 3, and Braeton, lib. 2, cap. 16, num. 3, and Britton, c. 39. . . . He may alter or suspend any particular Law that seems hurtful to the Publick. Blackwood in Apologia Regum, cap. 11." There were many Englishmen who would have denied these positions, but they would simply have transferred this attribute of absolutism from the King alone to the King, 10 CONSTITUTIONAL LAW Lords, and Commons. No one disputed then, no one dis- putes now, that a simple Act of Parliament can change the most fundamental laws of the realm. They were so changed by the Act of Settlement, which passed over the natural heir to the throne, imposed a religious test upon the sovereign, and established the Hanoverian dynasty. Parliament, says Blackstone, is " the place where that absolute despotic power which must in all governments reside somewhere is entrusted by the constitution of these Kingdoms. ... It can change and create afresh even the constitution of the Kingdom and of parliaments themselves. ... It can, in short, do every- thing that is not naturally impossible. " ^ It was the good fortune of the American colonists that among the settled rules for the construction of an Act of Parliament one was that it should not be deemed Effect of Acts , 1-1 .1 of Parliament to extend to any colony whicn was not by express o onies. ^gpjjjg included in its operation. The only British colonies, at first, were those in this country, and they were left for the most part to the direction of the crown. This was in each case regulated primarily by charter. Early in the eighteenth century a claim was put forward, and for many years maintained with apparent confidence by some, that the Act of Union between England and Scotland, adopted in 1707, had superseded all prior regulations as to American religious establishments. This Act, it will be recollected, preserved in perpetuity for each country the church then established there, the provision in reference to the Church of England being that it should so continue in England and the "Territories thereto belonging." In behalf of Episcopalians in America, and with the sanction of the Bishop of London,^ to whose see they were, in a measure, attached, it was contended that as the colonies were settled on territories belonging to England, they came expressly 1 Commentaries, I. * 160. ^ Chalmers, Opinions of Lawyers, 44, 50. The crown law officers, without supporting this doctrine, advised that no ecclesiastical synods could be called by an American colony, without the royal license. Ihid. CONSTITUTIONAL LAW 11 within the terms of the Act. Dr. Douglass, an intelligent and generally candid historian, asserted this so late as 1758, in the second volume of his Summary.^ The New Jersey Archives show that in a report by the Attorney-General of that colony, made in 1772, objections on the same ground were stated to the grant of a charter for a society in aid of the widows and families of ministers of the Scotch Pres- byterian Church. The Governor and Council granted the charter, notwithstanding; but on the ground that it consti- tuted merely a charitable and not an ecclesiastical corpora- tion. The sounder doctrine, however, evidently was that as the term "territories," in the Act of Union, was fairly applicable to such merely territorial dependencies as the Channel Islands, it could not be extended by construction to colonies not named, which were in the settled enjoyment of legislative powers.^ It is in the colonial charter that we find the germ of American constitutional law. Each of these, whether of the proprietary, provincial, or republican type, was our colonial the fundamental law of the jurisdiction, accord- charters. ing to which its government was to be organized and admin- istered. Except that it was not self-imposed, and that it was subject to revocation without the consent of those for whom it was made, it answered very nearly to our modern conception of what a Constitution should be. It was a brief document, laying down a general scheme of political organi- zation, granting large powers of legislation and adminis- tration, and imposing a few, and but a few, fundamental restrictions. Connecticut was so well satisfied with hers, that she re- tained it, with few modifications, as the foundation of her system of civil government until 1818, and Rhode Island clung to hers in the same way for a quarter of a century longer. On the other hand, those charters which reserved a 1 pp. 121, 149, 336. ^ See Documents relating to the Colonial History of New York, VII. 373 ; Beardsley, History of the Episcopal Church in Connecticut, I. 50. 12 CONSTITUTIONAL LAW controlling administrative authority to a royal governor or to proprietaries were a constant source of popular discontent. The supervising power of the crown resided nominally in the King in Council; really in a committee of the Council without the King. Certain members of the Privy Council were thus made a standing tribunal, by the name of the Lords of Trade and Plantations. By their authority any colonial statute could be set aside as unauthorized by the charter, and the judgments of the colonial courts re-examined and reversed. From 1718 down to the treaty of peace with the United States in 1783 they were provided with a special counsel of their own, besides being entitled to call on the Attorney-General and Solicitor-General for advice.^ In one respect this royal prerogative, which was not in- frequently exercised, was favorable to the development of American liberty and law. It secured a certain unity of movement in their growth. It produced symmetry of form. It built up a sentiment of common nationality. It promoted the study of legal institutions. It helped to rear an Amer- ican bar, worthy of the name. The first great lawsuit, however, affecting the American colonies was brought by the crown before the ordinary courts of justice at Westminster. This was the indictment in the King's Bench against those who had been incorporated by the name of the Governor and Company of Massachusetts Bay. They were charged in quo warranto proceedings with usurping the franchise of exercising powers of civil govern- ment in Massachusetts under a charter which contemplated nothing more than the conduct of a trading enterprise, hav- ing its seat in England. This was in 1635, five years after Winthrop and his association had carried their patent across the sea, and transformed their court of assistants, meeting occasionally in a private house at London to perform the functions of a board of directors of a business corporation, into a legislative assembly, sitting in Boston, and decreeing sentences of life and death. ' Chalmers, Opinions of Lawyers, 9, 11. CONSTITUTIONAL LAW 13 The main question made was whether such a company could convert itself into what the lawyers of the time styled "a corporation on the place," that is, could have its adminis- tration transferred to the place which was the actual centre of its business affairs. The judgment upon this went against them, but by later decisions was pronounced un- sound.^ Another question of no less importance was as to how far the power of legislation was conferred upon the colonial assembly. That no such power could be claimed was argued with great force by one of the Connecticut clergy. Rev. Gershom Bulkeley, in an attack upon the government of Connecticut, published in London in 1692.2 During the seventeenth century there were no judicial proceedings on this side of the Atlantic which deserve to be remembered as legal precedents. The only considerable courts were the General Courts, that is, the legislative assem- blies, or the Governor and Council. Occasionally a few law- books were imported for public use,^ but there was seldom much need to consult them in the course of a trial. The questions were simple, and the justice rude. The legal profession can hardly be said to have had an existence in the English colonies in America during the seventeenth century. No profession can long ^he eariv maintain a footing in any community unless its American bar. members can earn their living by it. In the early days of the colonial era there was little form or regularity in what they had of judicial procedure, and the pecuniary interests involved were seldom large. As any important controversies 1 Palfrey, Hist, of New England, I. 307 ; Commonwealth v. Eoxbnry, 9 Gray's (Mass.) Reports, 451, 480. 2 Will and Doom, or the Miseries of Connecticnt by and under an Usurped and Arbitrary Power. Cmn. Hist. Soc. Collections, III. 69, 112,131, 232. 3 Thns in 1647 the General Court of Massachusetts voted to import for the use of the magistrates two copies of each of the following books : Coke on Little- ton, New Terms of the Law, Dalton's Justices of the Peace, Coke's Reports, Coke on Magna Charta, Books of Entries. Mass. Col. Rec, II. 212. See also a reference in 1650 to the work known as Lex Mercatoria as an authority concerning mari- time affairs. Id., III. 193. 14 CONSTITUTIONAL LAW over matters of property were heard before the Governor and his Council, or the General Court, advocates required a knowledge of politics rather than of law. The trained lawyers on this side of the Atlantic were few. Of those who had studied at the Inns of Court, Massachu- setts had probably more than any other colony,' but they had gone there from other motives than that of pursuing the legal profession. It made them better magistrates, and helped them to office ; but perhaps for that very reason they were of opinion that, before competent Judges, causes could be tried quite as well without the intervention of a bar between the party and the State. ^ In the Massachusetts Body of Liberties, adopted in 1641, it was expressly provided that those who pleaded causes for others should receive no compensation for it.^ Not improb- ably this clause was inserted to get rid of the only practising attorney then in the colony,* a well-read man and a skilful conveyancer, but whom the General Court, not long before, had been forced to call to account for tampering with the jury in a cause before the Quarter-Court, in which he was of counsel. Practising lawyers were also debarred from a seat in the General Court. That being the principal tribunal for the trial of litigated controversies, it was thought unfit to have one sit in it as Judge, who might the next day appear as counsel for one of the parties in an inferior court.* Virginia at first contented herself with limiting the fees of attorneys for services in court, but in 1645 followed Massa- chusetts in excluding them altogether from pleading causes for remuneration, and maintained this policy until 1662. She had rather a numerous bar by the close of the seven- 1 Winthrop, Bellinghain, Humphrey, Dudley, Downing, Ward. Note Book of Thomas Lechford, xv ; Hildreth's Hisl.ofthe United States, I. 211. 2 Winthrop, History, II. 36. s This was drawn by Rev. Nathaniel Ward, who had been an " outer barris- ter " in England before taking orders in the church. Palfrey, Hist, of New England, II. 26. * Thomas Lechford of Clement's Inn. See his Note Book, xxi, 182. 6 Hutchinson's Hist, of Massachusetts, III. 104. CONSTITUTIONAL LAW 15 teenth century, but few had received anything in the nature of a legal education.^ Connecticut had the good fortune to number among her first planters an English barrister of great ability, Roger Ludlow. He framed her original Constitution, or "Funda- mental Orders," and, while borrowing a good deal from the " Body of Liberties " of Massachusetts, did not incorporate the provision excluding "mercenary attorneys." After he left the colony for Virginia, laws were adopted forbidding their employment for the defence in proceedings for criminal misdemeanors, and in 1667 this was enforced by a penalty of a fine or an hour in the stocks, with an exception in favor of any that should " speake directly to matter of law & with leave from y" authority p'sent. " ^ Early in the next century, however, she made provision for the admission of attorneys as regular officers of the court, the number being for a few years limited to not exceeding three in the largest county, nor two in each of the others.^ If there were few educated lawyers in the country during the early part of the seventeenth century, there were still fewer at the beginning of the next. Those of the original immigrants who had received their training, such as it was, in England had died or gone back, and there had been slender opportunity on our own soil for giving thorough instruction in any subject, except it might be theology. Harvard was long the sole source of supply, and when William and Mary, and Yale, came in to reinforce her, their graduates, few in number at best, naturally found their place in the ministry or in public office, rather than in a calling not yet recognized as a distinct and honorable profession.* In North Carolina it was thought necessary to provide a remedy against incompetent practitioners by making attor- 1 Hildreth, Hist, of the United States, I. 337, 516 ; William and Mary College Quarterly, VIII. 228. 2 Colonial Records, II. 59. ^ Judicial and Civil History of Connecticut, 184. * Hildreth, Hist, of the United States, II. 513. 16 CONSTITUTIONAL LAW neys liable for double damages to clients suffering from their negligent management of a cause. ' The valuable records of early lawsuits, published in 1809, under the name of Harris ^ McHenry's Reports, show that there were from the begin- ning of the eighteenth century well-read and able lawyers in Maryland, but their number was exceedingly small. In every colony but Massachusetts the percentage of col- lege graduates to the total population was very inconsider- able. As late as 1745 there were but fifteen of them in the whole province of New York.^ In Massachusetts herself, John Read was the only native-born lawyer who rose to real distinction before 1750. In passing, however, from the first to the second half of the century, there came a turn in the tide for the bar. George Chalmers came from Edinburgh to Baltimore, and there were other lawyers of eminence in both Maryland and Pennsyl- vania.* John Adams, writing in 1756, speaks of law stu- dents as very numerous,* and his own line of reading shows that there were some of them at least who built on solid and scholarly foundations.* As the Revolution drew on, it was found, as early as 1765, that there were lawyers enough in New York to make them- selves recognized among the forces to be reckoned with by the government in the endeavor to enforce the Stamp Act, although Sir William Johnson wrote to a friend that the mo- tive of their opposition was the apprehension that their " busi- ness must decrease from the duties on Law proceedings."^ In this colony attorneys at law were appointed by special license from the Governor. One hundred and thirty-six had been thus admitted to practice during the sixty-eight years 1 This was in 1743. Stat. ofN. C, Rev. of 1821, 1. 169. 2 The Yale Book, I. 395 ; Sanderson, Lives of the Signers of the Declaration of Independerice, III. 171. * Chalmers, in his Opinions of Lawyers, cinotea several of American composi- tion on colonial questions. * Life and Works, I. 37. 6 Id., I. 46 ; II. 46, 48, 50, 80, 103, 146. " Documentary History of New York, II. 823. CONSTITUTIONAL LAW 17 immediately preceding the Revolution, ^ or an average of two each year. In the South, several of those who took a lead- ing part in the Revolution had been educated for the bar in the Inns of Court at London ; ^ and during its course Jeffer- son, as a visitor of William and Mary College, introduced there a chair of Law and Police, which was filled by one of the most eminent Judges of the day, Chancellor Wythe, in whose first class, formed in 1779, John Marshall studied the principles of the science which he was afterwards to expound as Chief Justice of the United States.^ Not, however, till independence had been actually accom- plished did the American lawyer, as a lawyer, come to occupy a large place in the public eye. He attained it then, in no small measure, because he had now no competition to meet from the English bar, and this because thenceforward American causes were to be tried at home. There were also, now, new questions to be decided, growing out of the Revo- lutionary war. The rights of British subjects to reclaim confiscated property were pressed in every State, and the points involved were argued here with at least as much ability and learning as they were, during the same period, at Westminster.* The proceedings of a legal character in which the colonies had always been most interested were those which took place in England concerning their own charters. These were not matters which they could handle for themselves, and their agents at London were obliged to rely on English counsel. The correspondence, however, between their governors and the home authorities, as well as the reports of the colony agents, kept those who were at all in public life somewhat familiar with the legal principles which were involved. 1 In the Matter of Cooper, 22 New York Reports, 67, 79. ^ Sanderson, Lives of the Signers, III. 11 ; IV. 5. ^ Papers of the American Historical Association, IV. 133 et seg. * Compare, for instance, Dulany v. Wells, 3 Harris & McHenry's (Maryland) Reports, 20, and Georgia v. Brailsford, 3 Dallas' United States Reports, 1, with Wright V. Nutt, 1 H. Blackstone's Reports, 136, and Ogden v. Folliott, 3 Durn- ford & East's Reports, 726. 2 18 CONSTITUTIONAL LAW All the earlier colonial charters were such as were appro- priate for the regulation of a trading adventure, or land The growth of Speculation. Those to whom they were granted intoTeiTgov- occupied the relation of shareholders, and elected eruiug States, their boards of direction and government to sit in England. Long before 1701, these boards in most of the colonies had been replaced by local legislatures, meeting on American soil, and the authority of foreign proprietaries was soon to be withdrawn in all. The crown law officers, how- ever, were disposed to minimize the legislative powers thus conferred. Massachusetts, they held in 1703, could not set up a separate court of equity, although her charter author- ized her to constitute courts of record for the determination of all manner of pleas and causes, " whether the said pleas be real, personal or mixed." ^ It is not surprising that English and American lawyers should have been inclined to look at the powers of the colo- Appeais to ^ial assemblies and courts in very different ways. coifi'ilaMudg™ '^^^ doings of the original companies, under ments. which the British plantations here were made, were, of course, as they took place in England, fully subject to control by the English courts. But until the eighteenth century, as to transactions on American soil, some of the colonial governments denied, not unsuccessfully, any appeal from their sentences to the King in Council.^ Partly in consequence of this,^ in 1701 a bill was brought into Parliament to restore to the crown direct authority over all the American colonies not then under royal Governors.* It was defeated, but early in the reign of George I. a similar measure was again pressed. In the " cases " filed then by some of the colonial agents the fundamental difference be- tween the republican and the proprietary systems of colonial 1 Chalmers, Opinions of Lawyers, 195. ^ Pitkin, History of the United States, I. 125. 8 See the Address of the House of Lords in 1705 for the Relief of the Province of Carolina, for a vivid statement of the grievances under the old system. Re- port of the American Historical Association for 1892, 28. * Pitkin, History of the United States, I. 124. CONSTITUTIONAL LAW 19 administration was clearly brought out. If franchises granted to great proprietors were revoked or abridged, just compen- sation could be made: if those enjoyed by all free citizens of a colony which had been empowered to make laws for itself should be impaired, there was no redress, for there was no one in particular to whom to make payment, and if there were, liberty was beyond price. The system of judicial appeals to the King in Council was worked out with more and more precision as the eighteenth century advanced.^ It continued to be distasteful to the colonists ; but they could only oppose it by indirect means, such as requiring the appealing party to make a deposit of money, or give heavy bonds for payment, should he lose, of his opponent's costs.^ Occasionally, also, we find the Amer- ican courts declining to carry out an order reversing their decisions, on the ground that it did not conform to the local practice established under authority of the charter.^ Some of the judgments rendered by the King in Council denied validity to colonial statutes which were of the first importance. Such was that in the case of Winthrop v. Lech- mere, rendered in 1727,* by which the rules of inheritance which had been followed in Connecticut for nearly a hundred years were set aside as contrary to the laws of England respecting primogeniture. Certain political ideas were thus firmly embedded in the American mind. One was that every statute was subject to be set aside if its enactment transcended the powers conceded in the charter to the colonial supreme law legislature. Another was that there was a su- °^ ""^ '''"'^' 1 See the instrnctiona as to allowing appeals in all causes involving £500, sent to the Governors of New Hampshire, Massachusetts, New Jersey, Pennsylvania, Virginia, and South Carolina in 1753. NewJerseij Archives, 1st Series, VIII. 190. ^ A Pennsylvania statute passed in 1715, to this effect, was repealed by the Lords Justices in Council, in 1719. Pennsylvania Statutes at Large, III. 32. 3 Such was the case of Frost v. Leighton in the Superior Court of Judicature of Massachusetts, decided in 1738. Am. Hist. Review, II. 229. * Colonial Records of Connecticut, VII. 571, 191. 20 CONSTITUTIONAL LAW preme law ■ — the common law of England, modified in rare instances by Act of Parliament — which was one and the same for every colony, and that if any of their judicial tri- bunals failed to respect it, the judgments could be reversed by an imperial court of appeal. The jurisdiction of the King in Council, maintained hardly more for the protection of the royal prerogative than to repress the development of any distinctively colonial and un-English jurisprudence, thus served directly to prepare the way for the American theory of constitutional law. It sup- plied some of the necessary conditions by familiarizing our people with the elementary conceptions, the institutional prerequisites, out of which it must grow. No American jurisprudence, with a character of its own, could come into existence until there was a bar competent to shape it : a popular movement towards setting its foundations on definite principles of republican government; legislatures able and ready to begin the work of systematic codification ; and courts of appellate jurisdiction with power to give unity and form to the proceedings of all inferior tribunals. For twenty years before the outbreak of the Revolution, the American lawyer had been coming to the front. Wealth Legal educa- was increasing, and property interests required eighteenth more of his Care. Law books were largely im- century. ported.^ It is believed that more copies of Blach- stone^s Commentaries, during the eighteenth century, were sold in America than in England. Their elegance of literary form appealed more strongly to our bar. Blackstone was the first English lawyer, for a hundred and fifty years, who, while in the practice of his profession, Lord Campbell has declared, paid the slightest attention, in writing, to the selection or collocation of words. ^ The French writers on government and jurisprudence, of the new school, like Mon- tesquieu, were also read in this country. Legal education 1 See American Historical Association Report for 1895, 203, 206 ; Documentarij History of New York, IV. 930, 1148. 2 Lives of the Chief Justices of England, III. 475. CONSTITUTIONAL LAW 21 was made the subject of legislation. New Jersey prescribed a term of preparation for the bar longer, as respects its high- est positions, than any State now requires, and provided for finally crowning the successful counsellor with the title of sergeant at law.* Her Judges wore the official gown,^ and so did those in several of the other colonies.^ The control of public affairs was passing from the hands of those who, like Franklin and Trumbull and Washington, were not law- yers, to those who, like Adams and Jefferson and Johnson, were. In 1754 a Congress of commissioners from seven colonies was held at Albany, at the request of the Lords of Trade and Plantations, to concert measures of defence against the French and Indians, and frame a influence of general plan of union.* Franklin drew up such a *^^®"' plan and the Congress approved it. It would have set up a general American government, including all of the "old Thirteen " Colonies except Delaware and Georgia, much after the pattern of that of the present Dominion of Canada. The legislative authority was to have power to lay taxes for purposes of common defence.^ The lawyers rose up in a body against this scheme, when it was presented to the colonial assemblies. To give, they said, any power to tax to such a " Grand Council " as was proposed would be subver- sive of the privileges of free-born Englishmen as guaranteed by the colonial charters.® As the trading charters were one after another revoked or annulled, and the prevailing type of government became one in which the principal officers owed their appointment to the crown and were clothed with a veto power, the position that 1 Sanderson's Lives of the Signers, III. 83, 84. 2 Ibid., 105. 2 Life and Works of John Adams, II. 133. ^ Curtis, History of the Constitution, I. 8. ^ It is printed in Trumbull's History of Connecticut, II. 541. " Massachusetts Historical Society Collections, VII. 207-209 ; Trumbull, History of Connecticut, II. 353. 22 CONSTITUTIONAL LAW every American was inherently entitled to all the rights of the people of England was more and more strenuously as- serted. Magna Gharta was now appealed to Doctrine , ^, , , , , that Ameri- oftener than the colony charter, and there was a rights of ' disposition to recur to fundamentals in politics Englishmen, ^j^j^j^ showed itself in all the great State papers that were produced here during the decade before the Revo- lution, as well as during that which followed it. This spirit, indeed, showed itself as early as 1754, when objection was made to the charter prepared for King's College in New York. It was proposed to insert a clause conferring upon it the right to appoint a representative in the Provincial Assembly.^ This had been done in the previous century without question, in the incorporation of William and Mary College in Virginia, but the rights of the people to speak for themselves and tax themselves had since attained a much higher degree of recognition by the crown, and the promoters of the new institution were obliged to relinquish their hope of making it a factor in the civil government of the colony. Independence necessarily brought about a reconstitution of the judicial system of every State, and at the close of the Our Supreme Revolution Georgia was the only one which was Courts. found without a supreme tribunal of last resort. ^ In some, as, for example, in New York and New Jersey, the ancient system was preserved of making it half a judicial and half a political body : in most it was now made strictly judi- cial in its composition and its functions. The way was thus opened for securing certainty and pre- cision in the laws of each State as fast and as far as they might become the subject of adjudication. But to do this it was necessary not only that cases should be ultimately decided by one authority, but that the nature and scope of the decisions should be made generally known. Idem est non esse et non apparere. Hence came the 1 Documents relative to the Colonial History of 'New York, VIII. 573. 2 Hildreth, History of the United States, III. 378. CONSTITUTIONAL LAW 23 necessity for publishing judicial reports, the first of which ' appeared, from the press of a country printer in Litchfield, Connecticut, in 1789. Its author had been one of the stu- dents at Yale who left it to serve in the Revolutionary Army, and had received from her the degree of Master of Arts in 1787. His work had been made possible by a statute of Connecticut passed in 1784, on the recommendation of Roger Sherman and Richard Law, requiring the Judges of the Supreme and Superior Courts to file written opinions, in disposing of cases on points of law, so that they might be properly reported and " thereby a foundation laid for a more perfect and permanent system of common law in this State." ^ The absence of any reports earlier than Kirby's has made it a subject of dispute when the first American judgment was rendered which declared a statute void because it was unconstitutional. Probably it was one pronounced in New Jersey.^ That State was one of the first to act under the recommendation made by the Continental Congress on May 10th, Adjudging 1776, that in all colonies which had not already "ionai'statatee established a government "sufficient to the exi- "^°''^- gencies of their affairs," the "assemblies and conventions" should proceed to "adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general. " * A Provincial Congress then sit- ting in New Jersey, immediately issued a call for the election of a new Congress or Convention to meet in the latter part of the same month, and this body when it assembled assumed the functions of a constitutional convention.^ The form of constitution which it adopted was never submitted to a popular vote, but it was received with general public acqui- ' Kirby's Reports. 2 Statutes of Connecticut, Revision of 1784, p. 207. ' Virginia has claimed priority in principle, but the precedent is hardly made out. See American Historical Review, I. 444, Case of Josiah Philips. * Journals of Congress, II. 166. ^ Jameson on Constitutional Conventions, § 139. 24 CONSTITUTIONAL LAW escence, and accepted as the fundamental law of the State until replaced by another Constitution in 1844. Among its provisions were " that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony without appeal, forever; " and that every member of the legislature should take an oath not to assent to any law, vote, or proceeding that would annul or repeal this require- ment. ^ Soon afterwards, however, a statute was enacted by the legislative assembly permitting, under certain circum- stances, the trial of a cause before a jury of six. This, in the case of Holmes v. Walton, was adjudged to be void, because contrary to the Constitution. The date of this judg- ment, although formerly put later, it seems now to be estab- lished was 1780.2 Similar decisions followed in other States : some in those where royal charters were still regarded as in substance an expression of the fundamental law; and others where these had given place to formal Constitutions emanating from the people or those who assumed to represent them.^ In one of these the Articles of Confederation, under which the United States were then organized, were thus upheld as of para- mount authority.* Jefferson was among those who, at the time, seems to have approved this doctrine. So the Con- tinental Congress, he wrote to Adams, early in 1787, had been yielded parts of the sovereignty of the States, adding: " It has accordingly been the decision of our courts that the confederation is a part of the law of the land, and superior in authority to the ordinary laws, because it cannot be altered by the legislature of any one State. "^ 1 Poore's Charters and Constitutions, II. 1313. ^ American Historical Review, IV. 456. ' Commonwealth au* S'*''- gift or loan carries with it the right to make the subject of the transfer useful to its new possessor. If, therefore, a railroad company is incorporated and builds its road in a proper manner and at reasonable cost, the State of its charter would violate its implied covenant if it, by subsequent legis- lation, undertook to cut down the earnings of the company to such a point as to endanger the rights of its creditors, and to deny its stockholders any returns upon the capital invested.^ The Fourteenth Amendment has put the property of all private corporations on a new footing of security. This is by virtue of the decisions of the Supreme Court The Fourteenth of the United States that as they are included in Amendment, the general term "persons," they are entitled to the full benefit of its guarantees against deprivation by authority of any State of property without due process of law, or denial by any State of the equal protection of its laws. This "equal protection," however, is not necessarily to be protection of the same identical kind afforded all other per- sons. It is enough if it be equal to that given to others fairly ranking in the same class. Natural persons may be protected according to their condition, and corporations ac- cording to theirs. The laws regulating railroads, for instance, need not, for they hardly can, be in all respects like those regulating factories. If all railroads are treated alike, and all factories in the same line of production are equally pro- tected, it is enough. But* "due process of law" must be employed with refer- ence to all persons natural or artificial, alike. Thus, to set a valuation on the property of a corporation without giving it an opportunity to be heard before the assessors would be to deprive it of property without such process. The law re- 1 Smyth V. Ames, 169 United States Reports, 466. 296 PRIVATE CORPORATIONS quires that every one shall have notice before his property- rights can be directly affected by a particular proceeding against him under authority of the State. ^ But while this view of the separate personality of the cor- poration with its attendant rights is generally maintained, it has become, during the last half-century, more and more common for courts to look through this artificial conception of their nature to the individuals who in fact compose them, not only in such cases as have already been described, but whenever this is necessary to do full justice to all interests involved. The treatment of the subject which seemed necessary in order to bring out in clear form the beginnings of the Amer- ican law of corporations has necessarily, so far as it related to the colonial period, assumed something of an historical character. This may serve to justify the closing of this chapter with the tabulated list to which reference has already been made. LIST OP AMERICAN CHARTERS For private corporations for business purposes granted prior to 1800 ; including, (1) those from the several Colonies and the States which respectively succeeded them ; (2) those from States other than the original thirteen ; (3) those from the United States. I Colonial and State: the Old Thirteen Hew Hampshire. 1796 Proprietors of the New Hampshire Laws of N. H., Ed. Turnpike Eoad 1797 . . p. 326 1799 The New Hampshire Insurance Co. Bo lies, American Industrial His- tory 825 1 Hagar v. Reclamation District, 111 United States Reports, 701. PRIVATE CORPORATIONS 297 Massachusetts, 1782 The Marine Society of Salem 1782 Act in support of the National Bank. (Bank of North America ; giving it a monopoly of the bank- ing business ) 1783 Proprietors of Mattakesset Creeks 1784 The President and Directors of the Massachusetts Bank 1785 Proprietorsof Charles River Bridge^ 1787 Proprietors of Maiden Bridge 1787 Proprietors of Essex Bridge 1789 Proprietors of the Beverly Cotton Manufactory ^ Proprietors of the Androscoggin Boom 1790 Associated Proprietors of Lumber in Merrimack River 1791 Proprietors of the New Meadow Canal 1792 Merrimack River Bridge Co. President and Directors of the Union Bank Proprietors of the Middlesex Mer- rimack River Bridge Proprietors of the Locks and Canals on Connecticut River Private and Special Statutes, Ed. of 1805, I. vii Laws, Ed. 1807, I. 66 Private and Special Laws, I. 51 Laws, Ed. 1807, I. 115 Private and Special Laws, I. 93 lb. 153 Private and Special Laws, I. 175 221 230 266 309 Laws, Ed. 1807, II. 546 547 Private and Special Laws, I. 317 336 1 See the history of the ferry which preceded this bridge, and the provisions for securing the interest of Harvard College in that ferry, stated in the famous case of Charles River Bridge v. Warren Bridge, 11 Peters' Reports, 420. 2 The factory is described as a " public cotton factory " by a contemporary in 1789. Report of American Historical Association for 1896, 651. The company failed in 1802. Bolles, Am. Industrial Hist., 405. 298 PRIVATE CORPORATIONS 1793 Proprietors of Essex Merrimack Bridge Connecticut Eiver Bridge Co. Massachusetts Society for Promot- ing Agriculture Proprietors of the Massachusetts Canal Proprietors of the West Boston Bridge Proprietors of Monson Harbour in Wells Proprietors of the Locks and Canals on Merrimack River Proprietors of George's Eiver Canal New Meadow Eiver Bridge Co. Proprietors of Andover Bridge 1793 Proprietors of Haverhill Bridge Proprietors of Sheepscott Eiver Bridge Proprietors of the Middlesex Canal 1794 Proprietors of the Newbury -Port Woolen Manufactory Proprietors of the Portland Bridge Proprietors of the Back Cove Bridge Proprietors of the Upper Locks and Canals on Connecticut Eiver, in the County of Hampshire Proprietors of Merrimack Bridge 1795 Damarascotte Eiver Bridge Co. President and Directors of the Nan- tucket Bank Massachusetts Fire Insurance Co. Proprietors of the Falmouth Canal Private and Special Laws, I. 337 345 348 357 361 379 382 412 Private and Special Statutes, Ed. of 1805, I. xiii Private and Special Laws, I. 425 Private and Special Laws, I. 435 464 465 479 502 514 516 523 Private and Special Statutes, Ed. of 1805, I. xiv Laws, Ed. 1807, II. 664 688 690 PRIVATE CORPORATIONS 299 Massachusetts Society for the Aid of Emigrants Proprietors of the Water Works in the Middle of the Town of Pittsfield The Boston Water Co. (The Aque- duct Corporation) Proprietors of the Cumberland Canal Proprietors of the Falmouth Canal 1796 Proprietors and Directors of the Merrimack Bank Kennebeck River Bridge Co. First Massachusetts Turnpike Cor- poration Proprietors of the Kennebeek Bridge Proprietors of the Calico Printing Manufacture Proprietors of the Koxbury Canal Portland Marine Society Proprietors of the Water Works in the Town street in Williams- town First Massachusetts Turnpike Cor- poration Proprietors of the Sluice Way on Saco Eiver Proprietors of the Aqueduct in Stockbridge Proprietors of New Bedford Bridge Proprietors of the Aqueduct in Greenfield Proprietors of the Connecticut Eiver Bridge Proprietors of the Aqueduct in Richmond 1797 Proprietors of the Aqueduct in Hallowell Laws, Ed. 1807, II. 693 Private and Special Laws, II. 13 19 42 46 Laws, Ed. 1807, II. 692 Laws, Ed. 1807, II. 698 745 Private and Special Laws, II. 55 64 70 72 73 78 82 85 90 93 94 97 103 300 PRIVATE CORPORATIONS 1798 1799 Proprietors of the Aqueduct in Private and Special Lancaster Laws, II. 107 Proprietors of the Plymouth Aque- duct 109 Proprietors of the Aqueduct in Wilbraham 112 Proprietors of the Eastern River Bridge at Calls Ferry in Dresden 129 The Second Massachusetts Turnpike Corporation 130 The Proprietors of the Upper Bridge on Eastern River 134 Proprietors of the Aqueduct in Northfield 136 Proprietors of the Salem and Dan- Private and Special vers Aqueduct Laws, II. 137 The Third Massachusetts Turnpike Corporation 140 Proprietors of Ten Mile Falls Canal 158 Proprietors of Lewiston Bridge 174 Proprietors of the Kennebunk Pier 188 Proprietors of Mills on Charles River 193 The Wilbraham Bridge Co. 198 The Proprietors of York Bridge 199 Massachusetts Mutual Fire Insur- ance Co. 211 Proprietors of Mills on Mill Creek and Neponset River 226 Proprietors of the Springfield Aque- duct 234 First Aqueduct Company in Wren- tham 240 Proprietors of Amesbury Ferry Aqueduct 246 Proprietors of the Aqueduct in Hopkinton 254 President, Directors, and Company Laws, Ed. 1807, II. of the Portland Bank 858 Newbury Port Marine Insurance Co. 86^ PRIVATE CORPORATIONS 301 President, Directors, and Company Laws, Ed. 1807, II. of the Essex Bank 863 Marbleliead Marine Society Private and Special Laws, II. 264 Boston Marine Insurance Co. 265 Williamstown Turnpike Corpora- tion 291 Fifth Massachusetts Turnpike Cor- poration 295 1799 Newbury Port Marine Insurance Co. Private and Special Laws, II. 302 Sixth Massachusetts Turnpike Cor- poration 327 Rhode Island. 1791 The President, Directors, and Com- pany of the Providence Bank 1795 The President, Directors, and Com- pany of the Bank of Rhode Island 1799 The Providence Washington Insur- ance Co. Connecticut. 1732 The New London Society United for Trade and Commerce in Con- necticut Charter repealed in 1733 1784 Proprietors of Ore bed 1789 The Director, Inspectors, and Com- pany of the Connecticut Silk Manufacturers 1792 The President, Directors, and Com- pany of the Hartford Bank The President, Directors, and Com- pany of the New Haven Bank Laws of E. 1798 I., Ed. 447 462 Bo lies, American Industrial His- tory 825 Col. Eec. of Conn., VII. 390 421 State MSS. Archives, "Agriculture," &c., 1764-1789, II. 186 Ibid. 237 1 Private Laws 96 125 802 PRIVATE CORPORATIONS The President, Directors, and Com- 1 Private Laws pany of the Union Bank in New London 1795 The President, Directors, and Com- pany of the Middletown Bank The Company to clear the Channel of the Ousatonic Eiver (never organized) The Mutual Assurance Company of the City of Norwich The Hartford, New Loudon, Wind- ham, and Tolland County Society [Road] The New London and Windham County Society [Eoad] The Norwalk and Danbury Turn- pike Company The Oxford Turnpike Company 1796 The President, Directors, and Com- pany of the Norwich Bank The Proprietors of the Half Million Acres of Land, lying South of Lake Erie^ The Company for erecting and sup- porting a Toll Bridge from New Haven to East Haven 1797 The Hartford Aqueduct Company (Acts and Laws, May Session, 1797, 465. Never organized). 1797 The Proprietors of the Niantic Toll Bridge The Proprietors of the New Bury- ing Ground in New Haven 298 The New Haven Insurance Company 680 The Boston Turnpike Company 1202 The Pairfield, Weston, and Reading Turnpike Company 1266 The New Milford and Litchfield Turnpike Company 1383 1 See Holmes v. Cleveland E. R. Co., 93 Federal Reporter, 100. 157 115 617 679 1309 1380 1400 1415 131 Acts and Laws, Octo- ber Session, 1796, 451 1 Private Laws 241 48 1 Private Laws 279 PRIVATE CORPORATIONS 303 The Saquituck Turnpike Company The Strait's Turnpike Company The Stratford and Weston Turn- pike Company 1798 The Aqueduct Company of the Town of Durham The Windsor Aqueduct Company The Company for erecting and sup- porting a Toll Bridge with Locks from Enfield to Suffield The Derby Turnpike Company The Green Woods Turnpike Com- pany The Hartford and New Haven Turn- pike Company The Talcott Mountain Turnpike Company The Litchfield and Harwinton Turn- pike Company The Ousatonic Turnpike Company 1799 The Canaan and Litchfield Turn- pike Company The Windham Turnpike Company 1 Private Laws, 1437 1456 1460 42 63 250 1261 1283 1297 1465 1337 1411 1217 1492 New York. 1675 The Kew York Fishing Co. 1770 The Corporation of the Chamber of Commerce in the city of New York 1782 The President, Directors, and Com- pany of the Bank of North America. Congressional charter of Dec. 31, 1781, confirmed, and a monopoly of the banking busi- ness granted for N. Y., to last during the Eevolutionary War Documents relating to Colonial Hist. of N. Y., III. 234 Laws of N. Y., Ed. 1792, I. 80 Laws of N. Y. Ed. 1792, I. 30 304 PRIVATE CORPORATIONS 1790 The New York Manufacturing 2 New York Laws, Society Ed. 1802 522 1791 President, Directors, and Company 2 New York Laws, of the Bank of New York Ed. 1802 351 1792 President, Directors, and Company of the Bank of Albany 358 The Society of Mechanics and Tradesmen of the city of New York 524 1793 The Society for the Promotion of 2 New York Laws, Agriculture, Arts, and Manufac- Ed. 1802 tures 626 President, Directors, and Company of the Bank of Columbia at Hudson 365 The President, Directors, and Com- See Stat, of Vt., Rev. pany of the Northern Inland of 1797 Lock Navigation 127 1797 The Hamilton Manufacturing So- 2 N. Y. Laws, Ed. ciety 1802 530 The Cayuga Bridge Company 493 1798 The President, Directors, and first 2 New York Laws, (and Company of the Great Western Ed. 1802 1799) Turnpike road. (Turnpike Co. incorporated for improving the State road from the House of John Weaver in Water Vliet to Cherry Valley). 390 The President, Directors, and Com- pany for improving the road from the Springs in Lebanon to the City of Albany 390 The United Insurance Company in the City of New York 531 The Mutual Assurance Company of the City of New York 531 The New York Insurance Company 531 1799 President and Directors of the Manhattan Company "for the purpose of supplying the city PRIVATE CORPORATIONS 305 1791 of New York with water for the use of such of the inhabitants thereof and others as may be in- clined to take the same." Sec. VIII. May employ any surplus capital " in the purchase of public or other stock or in any other monied transactions or operations not inconsistent with the Constitution and laws of this State or of the United States."^ The President, Directors, and Com- pany of the Columbia Turnpike road The President, Directors, and Com- pany of the Rensselaer and Co- lumbia Turnpike road The President, Directors, and first Company of the Northern Turn- pike road New Jersey. The Society for establishing useful Manufactures. Capital fl,000- 000; power of eminent domain giveu. Personal estate non-tax- able ; also its lands for ten years ^ 2 New York Laws, Ed. 1802 370 396 404 418 Laws of N. J. of 1800 Ed. 104 Pennsylvania. 1682 The "Free Society of Traders" [made Lords of the Manor of Frank, with three representa- tives in the Provincial Council '] Hazard's Ann. 541, 2, 552, 576, 586; Col. Eec. of Pa. II. 154, III. 158; Pa. Stat, at Large, Ed. 1899, III. 345 1 This was a piece of Aaron Burr's strategy, and, on the strength of it, the corporation became a bank, and is still in business, known conventionally as " The Manhattan Bank." " See Chapter IX,, p. 222. 3 This Society was chartered by Gov. Penn. The first President was Dr. 20 306 PRIVATE CORPORATIONS 1768 The Philadelphia Contributionship for the insuring of Houses from Loss by Fire. 1782 The President, Directors, and Com- pany of the Bank of North America 1785 (Charter repealed) 1787 (Ee-charter) 1789 1785 The Agricultural Society of Phila- delphia 1786 The Mutual Assurance Company for insuring Houses from Loss by Fire 1790 The Carpenters' Company of Phila- delphia 1793 The President, Managers, and Com- pany for promoting the Cultiva- tion of Vines 1793 The President, Directors, and Com- pany of the Bank of Pennsyl- vania 1794 The President and Directors of the Insurance Company of North America The Insurance Company of the State of Pennsylvania Laws of Pa., Smith and Keed's Ed., I. 279 2 Dallas' Laws, 499; Lawsof Pa., Smith and Eeed's Ed., II. 399 Holmes, Am. An- nals, II. 470 Laws of Pa., Smith and Eeed's Edv, II. 370 Id. 528 3 Dallas' Laws 317 325 489 613 Laws, Ed. 1797, II. 838 Delaware. 1786 The President, Directors, and Com- pany of the Bank of North America (A confirmation of the charter of Congress, and declaring it a corporation of Delaware.) Nicholas More of London, afterwards Chief Justice of the State, and impeached as such for misconduct in ofiBce, but never removed. Colonial and Provincial Laws of Pennsylvania, 1676-1700, 499-504. PRIVATE CORPORATIONS 307 Maryland.^ 1783 The Proprietors of the Susquehanna Canal 1784 The Potowmac Company 1790 The President, Directors, and Com- pany of the Bank of Maryland 1791 The Maryland Insurance Fire Com- pany 1793 The President, Directors, and Com- pany of the Bank of Columbia 1794 The Baltimore Equitable Society for insuring Houses from Loss by Fire 1795 The Baltimore Insurance Company The President, Directors, and Com- pany of the Bank of Baltimore The Maryland Insurance Company 1796 The Pocomoke Company (for im- proving the Pocomoke Eiver) 1799 The Chesapeake and Delaware Canal Company Virffinia. 1784 The James River Company The Potowmac Company 1787 The Dismal Swamp Canal Co. Laws, Ed. 1811, I. 477 488 Herty, Digest of Laws, 1799, 81 353 84 63 72 75 362 Laws, Ed. 1811, II. 322 609 Laws of Va., Eev. of 1803, I. 440 446 12 Henning Stat, at Large 480 The Appomattox Trustees. (For improving the navigation of the Appomattox Eiver) 691 The Appomattox Company. (For improving the navigation of the Appomattox Eiver) 792 The Mattapony Trustees. (For im- proving the navigation of the Mat- tapony Eiver) 700 1 The fact that no private corporation was chartered by the colony of Mary- land is remarked upon in McKim v. Odom, 3 Bland's Reports, 407. 308 PRIVATE CORPORATIONS 1789 The Pamunkey Trustees. (For im- Va. Stat, at Large, proving the navigation of the Ed. 1835, I. Pamunkey Eiver) 75 1792 The President, Directors, and Com- 13 Henning pany of the Bank of Alexandria 694 The President, Directors, and Com- pany of the Bank of Richmond 602 1793 The Rappahannock Company. (Por Va. Stat, at Large, improving the navigation of the Ed. 1835, 1. Rappahannock River) 246 1794 The Mutual Assurance Society against fire on buildings, of the State of Virginia 412 1795 Act authorizing the Bank of the United States to establish branches in Virginia 367 The President, Managers, and Com- pany of the Fairfax and Loudon Turnpike road 380 1795 The Matildaville Company. (A Va. Stat, at Large, turnpike) I. 387 The Trustees of the Upper Appo- mattox Company 390 The Trustees of the Piankitank Canal Company 400 The Quantico Company. (For im- proving the navigation of Quan- tico Creek) 394 The Mutual Insurance Company against fire on goods and furni- ture, in the State of Virginia 1796 The North River Canal Company 1798 The Marine Insurance Company of Alexandria 91 The Shenandoah' Company. (For improving the navigation of the Shenandoah River) 99 412 Va. Stat. at Large, II 24 PRIVATE CORPORATIONS 309 769 1821, II. 820 North Carolina. 1790 The Dismal Swamp Canal Company Laws, Ed. 1821, I. (Like Virginia charter of 1787.) 657 1792 The Cape Fear Company 694 1795 Act which is substantially a gen- eral incorporation law for canal companies. Power of eminent domain given. Canal to become free of toll when subscribers are reimbursed with 6 per cent interest 1796 The Deep and Haw River Company Laws, Ed. South Carolina. 1786 The Company for the Inland Navi- Stat. Ed. of 1838, gation from Santee to Cooper VII. Eiver 541 1787 The Company for opening the Navi- 549 gation of the Catawba and Wateree Holmes, Am. An- Eivers nals, II. 479 The Company for improving the Stat. Ed. of 1838, Navigation of the Edisto and VII. Ashley Elvers 546 1794 The Port Eepublic Bridge Com- VIII. pany 182 1795 The Agricultural Society of South Carolina 187 1797 The Charleston Mutual Insurance Company 195 The Charleston Insurance Company 196 1799 The Charleston Water Company 205 The Company for opening a Canal from Back Eiver to Chapel Bridge 209 Georgia. None. 310 PRIVATE CORPORATIONS II States other than the Old Thirteen Vermont admitted as a State . . . . 1791 Kentucky " " " . . . . 1792 Tennessee ■ " '' " . . . • 1796 Vermont. 1791 The Company for rendering Con- Laws, Rev. of 1797 necticut River navigable by Bel- lows Tails 81 1794 The Company for rendering Con- necticut River navigable by Water Queeche Palls 134 1795 The Proprietors of White River Falls Bridge 86 The White River Bridge Company 89 The West River Bridge Company 93 1796 The First Vermont Turnpike Com- pany 136 1797 The Second West River Bridge Company 98 The Proprietors of Cornish Bridge 100 The Company for locking White River 102 The Green Mountain Turnpike Cor- poration 140 1798 The Green Mountain Turnpike Session Laws, Oct. Company 1798 38 1798 The Windham Turnpike Company Session Laws, Oct. 1798 30 1799 The Windsor and Woodstock Turn- pike Company Kentucky. Directors and Society for promot- ing the Cultivation of the Vine 52 Laws of Ky., Ed, 1810, II. 268 PRIVATE CORPORATIONS 311 Trustees for the purpose of promot- Laws of Ky., Ed. ing Manufactures 1810, II. 290 The President and Directors of the Frankfort Bridge Company 302 Tennessee. None. Ill The United States. 1781 The President, Directors, and Com- Journals of Con- pany of the Bank of North gress, VII. America 257 1791 The President, Directors, and Com- Laws of the U. S., pany of Bank of the United Ed. 1815, II. States 194 N. B. — The Ordinance of 1787, providing for a territorial government northwest of the Ohio Eiver, gave to the territo- rial legislature general legislative powers, subject to certain restrictions. Laws of the U. S., Ed. 1816, I. 478. This was confirmed in 1789 (under the Constitution). Id., II. 33. Simi- lar provisions were made in 1790, as to the Territory south of the Ohio River. Ibid., 104. These powers were construed as authorizing these territorial governments to grant charters of incorporation, but I have found none creating private corpora- tions for business purposes, though several for educational pur- poses. Three colleges were thus erected in the Territory last mentioned, in 1794 and 1795. Tenn. Laws, Ed. of 1821, I. 506, 606, 520. 312 PRIVATE CORPORATIONS Total. « CO CO m - - Roads. - t^ 00 O O) to Improv- ing Nav- igation. "<* - CT o O) CO CO - (N Mining. - - Manu- factures. w - ■* - - « Logging. CT IN Land Com- pany. - - Insur- ance. - m - (N CO 't ■* CC (M in f crime. and as they reflect the public opinion of the communities they represent, there must needs be in different States, and at different periods of time, a wide diversity in respect to precisely what acts shall be placed in the category of crime, and what shall be regarded simply as private wrongs, to be redressed or not, in the civil courts, as the individual injured may himself determine. All States and peoples who have received the English common law as a heritage have followed, in a general way, a certain classification of the graver offences which are deemed to be against public policy, and so deserving of punishment at the hands of the State. We have, therefore, offences 366 CRIMINAL LAW AND PROCEDURE against the sovereignty of the State, against public property, against the person, against private property, against public justice, against the public peace and safety, against chastity, and against humanity. The penal codes of the early Amer-. ican colonists placed at the head of this classification offences against religion. Blasphemy was punishable with death; apostasy was likewise a grave offence. In most of the mod- ern codes, however, blasphemy and offences against religion have been relegated to a lower order of crime. While blas- phemy remains a crime in nearly all of our States, it is no longer at the top of the list ; it is more generally classified as chief among the offences against humanity. The State only takes notice of the blasphemer as a public nuisance, liable to endanger the peace of the community. If he will confine himself to his own abode, he may blaspheme in private, and government will deem his act unworthy of public notice: if he blasphemes abroad he shocks the sentiment of mankind, and thus endangers the public peace. Our colonial forefathers conceded to the State larger functions and prerogatives than public opinion at the present Qg^^ ^ time is willing to concede to government. They against regarded the State as chiefly and primarily the support and strong arm of religion : consequently they punished inexorably all acts which tended to the sub- version of religion, or were antagonistic to the faith they themselves professed. No longer does the State by formal prohibitions and dreadful penalties seek to compel men to be religious, or even moral. The requirements of our penal codes are now deemed to be sufficient when they prohibit and punish those acts which endanger life, property, public peace, and the stability and integrity of society. Acts against morality and chastity are not now punished because they are wicked, but because they have a tendency to disintegrate society and promote consequences subversive of all social order. Deorum offensce, Diis curce. While the State is no longer empowered to compel people by prohibition and punishment to be religious, it should CRIMINAL LAW AND PROCEDURE S67 recognize that in tlie performance of its function of preserv- ing the peace and security of society, it owes to religion, and to the institutions of religion, an obligation of which it should ever be mindful and considerate. In so far, there- fore, as the charitable and reformatory institutions, which religion establishes and maintains, tend to relieve the State and make lighter its obligation to maintain peace and order, they should have the helpful encouragement and support of the State. We have seen that the theory or ground upon which the State prohibits certain acts or omissions, and by so doing makes such acts or omissions crimes, is one of object of public policy. The theory upon which it pre- pinishment. scribes and administers its penalties is one more difficult to formulate with accuracy and precision. The ancient view was that of retribution or vengeance. The earlier codes sought to retain a certain correspondence between the crime and the punishment; "an eye for an eye, a tooth for a tooth," is the legislative declaration of a ruder civilization. As the protection of life and property came to be regarded as of greater concern than the mere dispensing of retributive justice, law-makers sought to fix such kind and measure of punishment for wrongdoing as should have the most whole- some effect in deterring others. Therefore, with the ad- vancement of civilization and the more complex relations of society, the utilitarian or protective theory became necessa- rily prominent. Not so many years ago, when horse-stealing in England was a capital offence, a convicted prisoner, when asked why sentence should not be passed upon him, said, " It is hard to hang a man for only stealing a horse," to which the Judge replied: "Man, thou art not to be hanged only for stealing a horse, but that horses may not be stolen." Whatever may be the conclusions of speculative philoso- phy, the theory upon which government prohibits and pun- ishes an act is directly one of practical consideration. These 868 CRIMINAL LAW AND PROCEDURE considerations will always keep prominent in the minds of law-makers the utilitarian theory of punishment ; the primary object being ever to deter others, and so protecting society in the future, rather than to seek the reformation of the criminal, or to compensate in the abstract the mere infringe- ment of the rule of justice itself. Practically, the modern statute does not much concern itself with the administration of mere retributive punish- ment. With the passing of the divine right of kings went also the idea that government, whose object is to conserve the civic relations of its people, has much, if anything, to do with retributive justice. This tendency has been deplored, but certainly the utilitarian theory is fully justified. The State unquestionably is right in utilizing the punishment it inflicts upon a convicted felon, as an example to other evilly disposed persons. The convict has no right to complain that the government is making an example of him, because in any view of retributive justice, he deserves the punishment imposed. In support of this theory that punishment is an evil to be inflicted only for the prevention of greater evils. Sir Edward Frye, in an article in the Nineteenth Century, for September, 1883, said, " You have nothing to do with the past offence, except as an occasion for preventing other crimes. TTou have nothing to do with the offender except as a whipped boy, caught for the public good." The importance given to the utilitarian theory has been justly criticised by other writers. From a philosophical point of view, the right to punish will ever remain founded upon the idea of retributive justice, and should not be entirely lost sight of or abandoned. In every law, human or divine, pain must follow wrongdoing. No scheme of philosophy would be worthy the name which tolerated impunity or permitted infractions of the law of justice to be ignored. Religion has ever regarded human governments as means or agencies through which the Divine Power controls the affairs of men : hence it remains the duty CRIMINAL LAW AND PROCEDURE 369 of the government to punish those acts which are deemed subversive to the welfare of society, even though the circum- stances are such as leave no room for the operation of the utilitarian theory or reasonable hope of reformation. No code of laws can ever be entirely efScient and enduring which ignores a proper and just recognition of the right which authorizes societj- in the aggregate to inflict pains and pen- alties for wrongdoing, upon the individuals of which it is composed. The last and altogether modern view of punishment is the reformatory one. Surely this theory is prompted by the highest and noblest sentiments of mankind, and all good citizens should be united in hoping for the success of every experiment in this direction. It is perhaps too soon to expect very tangible results from any of the modern practical experiments based upon this theory. Cordial support, how- ever, should be given to every reasonable effort in this direction which gives any promise of favorable results. In the bill of rights of the Constitution of New Hampshire, Article XVIII., it is declared as follows: — "All penalties ought to be apportioned to the nature of the offence. No wise legislature will afBx the same punishment to the crimes of theft, forgery, and the like, which they do to those of murder and treason. Where the same undistinguish- ing severity is exerted against all offences, people are led to forget the real distinction in the crimes themselves, and to commit the most flagrant with as little compunction as they do the lightest. For the same reason, a multitude of sanguinary laws is both impolitic and unjust, the true design of all punish- ment being to reform and not to exterminate mankind." The right of a State to punish for crime is founded upon all three of the grounds noticed. The ideal penal code should be that which most widely co-ordinates the three purposes which prompt society to punish, without giving such undue prominence to one as shall in fact abrogate the others, and law-makers will best serve society by ever keep- 24 370 CRIMINAL LAW AND PROCEDURE ing in mind the threefold duty of seeing that justice is vindicated, society protected, and the wrongdoer, if possible, reformed. To fit the penalty not only to the crime, but to the moral and social conditions of the accused, as well as the reforma- tory possibilities, will ever remain a difficult problem in the administration of justice. When the penalty prescribed by law is manifestly inappropriate to the offence, both Judge and jury are impelled by motives of humanity to abrogate the rigors of the law by means not always in strict accordance with their official obligations and constitutional duties. Closely allied, and as an outgrowth of the reformatory idea of punishment, we have the interesting experiment provid- ing for indeterminate sentences that has been attempted in various States. When under the laws prevailing in England until compara- tively recent times, so many trivial offences were punishable Suspending bj death, juries would often fail to convict, and sentence. Judges in case of conviction would postpone and defer sentence until recourse could be had to the Home Office for pardon. Hence there arose a custom which has long pre- vailed to a considerable extent, for courts, in the arbitrary exercise of clemency and forbearance, to suspend sentence. In some States, this custom has been expressly regulated by statute. It is gravely doubted whether it may be legally exercised without legislative sanction. Its arbitrary exercise by a weak or corrupt judiciary might often result in a gross miscarriage of justice. This custom is often followed in police and magistrate's courts, where the offence is trivial, and the accused without a record of previous conviction. Notable instances of its abuse are extremely rare, and many cases will occur to every lawyer and Judge of long experi- ence, where the suspending of judgment has not only had a remedial and reformatory effect, but has prevented un- necessary suffering and privation to helpless and dependent families. It is difficult to see how any great harm can arise from CRIMINAL LAW AND PROCEDURE 371 such exercise of this discretion in respect to the trivial offences prosecuted in municipal courts. By the great weight of authority, however, a court has no power to suspend its sentence, except temporarily, in certain cases, to enable an appeal to be taken to a higher court. Grave objections may be urged against the enactment of a statute which should definitely confer upon a Judge in all cases the right to suspend sentence indefinitely. It would be an infringement upon the pardoning power, which, under our system of government, is wisely reposed in the Executive. Some States, however, have enacted statutes whereby, under various conditions and limitations, a court is empowered to suspend sentence, or terminate a prosecution, when in its discretion it is consistent with the ends of justice so to do. The practice of suspending sentence has been severely criticised by courts of high authority. The late Chief Justice Cooley characterized such an act on the part of a Judge as an attempt " to grasp at a power not confided to him, and usurping authority." In most, if not all of the American States, the power to pardon has been reposed in the executive department of the government. This power is more often exercised by the Governor alone. In respect to offences against the Federal laws, the pardoning power is in the President. In many States, the power is not vested in the Governor alone, but in some branch of the executive depart- ment, such as the Governor's Council, or a Board of Pardons specially constituted for that purpose. From earliest times, in England as well as in this country, the power of the Executive to pardon has been deemed to include the power to pardon upon condition. This is recog- nized upon the theory that the greater includes the less ; and if the Executive may exercise the plenary power of pardon, it logically follows that he may confer this act of grace upon conditions. In several States, constitutional provisions exist, authoriz- ing pardons upon such terms and under such restrictions as 372 CRIMINAL LAW AND PROCEDURE the Governor shall think proper. The conditions imposed, however, must be compatible with our constitutional provi- sions and the policy of our laws. It has been held that banish- ment from the United States may be a proper condition of pardon : so also, that a convict shall leave the State, or shall leave the State within a limited time ; so also, a pardon which relieves from imprisonment without removing legal disabilities, such as the loss of the right of franchise, and the like. It has also been held that one under sentence of death for murder could be pardoned upon condition that he be imprisoned for life : the acceptance of the pardon upon such condition was held to make the imprisonment lawful. The exercise of the pardoning power, and the custom of suspending sentence in certain cases, led the way to the Indeterminate more recent plan of "indeterminate sentences." sentences. T^]ais subjcct, as wcU as provisions for paroling prisoners upon good behavior, is just now inviting thoughtful investigation. Considerations of humanity and the highest welfare of the State are ever suggesting the adoption of such modes of punishment as shall have a reformatory influence over the criminal, and render him less liable to repeat his crimes. In several States, therefore, it has been provided by statute Jthat the accused, upon conviction, may be sentenced to im- prisonment for an indefinite period, within certain limitations, reposing in some instances in the directors of the penitentiary authority to parole a prisoner at the expiration of the mini- mum term of imprisonment, and permit him to go at large. Such paroles are on condition, however, that if the accused is again convicted of an offence, he must serve out the maximum term of imprisonment for his original crime. These provi- sions of coiu'se differ very much in detail in various States where the experiment has been tried. The question of the constitutionality of statutory provisions of this description has been frequently before our courts of last resort. In Michigan the statute passed by the legisla- ture of that State provided in substance that the term of CRIMINAL LAW AND PROCEDURE 373 imprisonment should not exceed the maximum provided by law, and that no prisoner should be paroled until he had served the minimum statutory penalty. It reposed in the State Board of Prison Control the power to parole prisoners at any time after the expiration of the minimum term of imprisonment, and permit them to go abroad, remaining, how- ever, during their term of parole, constructively in the legal custody and control of the Prison Board, which Board had full power to re-imprison such convict upon violation of the rules and regulations which the Board was authorized to make, regulating paroles. It further provided that upon violation of his parole, the convict should be returned to prison and required to serve out the maximum measure of penalty provided by law for his original offence. A second conviction for crime was to be deemed a violation of such parole, and the sentence of imprisonment imposed by such second conviction was not to commence until the termination of the first sentence. The Supreme Court of Michigan held this law to be un- constitutional. The Court, in its opinion, severely criticised the statute conferring these powers upon the Board, and characterized it as an attempt to confer judicial power upon officers, who, under the Constitution of the State, could not exercise such power. It also characterized the statute as in- fringing the pardoning power which was reposed in the Gov- ernor alone, and also regarded it as an attempt to confer upon a trial Judge a right to delegate the exercise of some measure of his judicial functions to the Prison Board, which, without the legal safeguards which regulated and controlled courts of justice in the administration of the law, could, in the exercise of its discretion, prescribe such measure of penalty as whim or caprice might dictate. " When a convict," says the Court, " in whose interests the so-called humanitarians have devised this manner of indeterminate sentence for his reform, enters the prison, he becomes the servant and slave of the Prison Board, and no court in the country has any power to protect his rights or redress his wrongs." 374 CRIMINAL LA W AND PROCEDURE The constitutionality of statutory provisions of this charac- ter has, however, been sustained in Ohio and Massachusetts. It is difficult to see in what manner the general idea of parol- ing prisoners under proper rules and regulations, and restor- ing to them their liberty so long as it is properly exercised, is necessarily repugnant to the spirit of our Constitutions and laws. The reasoning of the Supreme Court of Michigan is not altogether satisfactory. One of the Judges dissented from the opinion of the Court for reasons which seem to be cogent and convincing. The State certainly has power to provide by law where and in what manner its prisoners shall be confined, and what lib- erties may lawfully be extended to them, as well as what re- strictions and limitations may be imposed as a measure of their punishment. There seems to be no reason, therefore, why the legislature may not provide that a convict under sentence of a definite term of imprisonment may, under cer- tain regulations and conditions, be permitted to go at large so long as these conditions are complied with, and to ordain and provide what authority shall prescribe such conditions and regulations. Such legislation invades neither the pardoning power of the executive, nor the judicial functions of the Court. The principal methods of punishment in all of the Amer- ican States have been and are, death, imprisonment, and pe- Modes of cuniary fine. Both fine and imprisonment, or punishment. imprisonment without fine, or fine without im- prisonment, constitute the penalty for the great body of crimes. In Colorado, a statute was passed imposing a period of sol- itary confinement before hanging, as a punishment for murder Ex post /acta in the first degree. In the case of Medley, which laws. went to the Supreme Court of the United States, it was decided that this statute, which was passed by the leg- islature of Colorado after the commission of the crime for which Medley was convicted, providing for a prior term of CRIMINAL LAW AND PROCEDURE 375 solitarj^ confinement in addition to the death penalty, was in violation of the provision of the Constitution of the United States, prohibiting any State from passing ex post facto laws. Upon a writ of habeas corpus, the Supreme Court of the United States ordered the discharge of the prisoner who was undergoing a punishment of solitary confinement prior to being hanged. Economic reasons have with us never suggested or made feasible punishment by transportation to penal colonies, which in former years has been so largely re- ^ _,.. T.-11 Transportation. sorted to m Great Britain. Banisliment has never been much resorted to as a means of punishment. The only provision for this we find is in Maryland, where parties who have married within the degree of consanguinity pro- hibited by the laws of that State may, upon conviction, be banished from the State. In some Southern States, we find provisions for sentencing criminals to hard labor outside the penitentiaries, in work upon the highways, and other public improvements. The scale of penalties to be imposed for crime has never yet been graduated with accurate precision. An examination of the penal laws of the different States discloses Grading an astonishing lack of uniformity in the measui-e P^aities. of punishment that may be imposed for the same crime. In respect to many offences, there will be found in every State a considerable range of penalty, from the imposition of a small fine to imprisonment for a long term of years. The measure of punishment to be administered, within statutory limitations, in most States rests in the discretion of the Judge imposing the sentence. In some States, the jury in certain crimes assess the measure of punishment in their verdict. In some States, notably in Delaware, Maryland, and Loui- siana, we find embodied in the provisions for punishing vari- ous offences against property the attempt to •. ^-^ J^ ji \.^ • • J • Restitution. compel restitution for the injury done; as in Maryland, for example, in case of larceny, the accused upon 376 CRIMINAL LAW AND PROCEDURE conviction may be sentenced to pay the full value of the property stolen, or make restitution therefor. Under the laws of Delaware, offences against property are severely punished, the theory of restitution to the owner being paramount. The sentence may not only impose a two- fold restitution of the value of the property to the owner, but also subject the offender to an hour in the pillory, to be followed with twenty lashes and imprisonment ranging from two to six years. Where restitution is not compelled, the corporal punishment is even more severe ; death being im- posed for arson in the first degree, and for the burning of a public building, one thousand dollars fine, one hour in the pillory, sixty lashes, and imprisonment not exceeding twenty years. This idea of restitution to the person injured seems always to have been a prominent factor in the penal code of Dela- ware. Early in the last century, a negro woman convicted of larceny was sentenced not only to pay to the owner the full value of the property stolen and not recovered, but also the value of the property recovered, and to be "publicly whipped with twenty lashes on her bare back, well laid on," and then disposed of as a servant to the highest bidder, for such a term, not exceeding seven years, as should be neces- sary to raise the restitution money and the costs of prosecu- tion. This sentence, it is recorded, was executed to the letter. At the sale of the unfortunate woman, the bidding was not spirited, and she was sold to the highest bidder for fifty cents. We find many provisions in the laws of Louisiana resem- bling somewhat those of Delaware, attempting to enforce restitution to the person injured, although in Louisiana corporal punishments are less rigorous, and the pillory and whipping-post are unknown. Rhode Island is exceptional in providing consequences other than fine and imprisonment upon conviction Civil death. j. . t i i- tor crime. In the case ot a person sentenced to the State prison for life, or for a period of seven years or CRIMINAL LAW AND PROCEDURE 377 more, any creditor may apply for a settlement of his estate, and letters of administration will issue as if the person were dead. On conviction for murder or arson in that State, the law deems the person to be civilly dead. If married, the bond of matrimony is deemed to be dissolved ; all civil rights and relations of every nature are forfeited, and his property is administered upon and distributed as if a natural death had occurred. The circumstances surrounding each individual offence are necessarily so divergent that a fixed and inflexible scale of penalty would, in a large number of cases, work Extenuating unjustly and offend the sentiment of the com- circumstances, munity. The provision for maximum and minimum penal- ties in a measure compensates for the inequality of the actual guilt. When we undertake any comparison of the penalties im- posed by the laws of the different States, we find inequality of some startling and astonishing contrasts. penalties. From the retention of the pillory and the whipping-post, the common impression obtains that the criminal code of Delaware is stringent and severe. We find, however, in that State, that one convicted of the crime of incest may, in the discretion of the Judge, escape with a pecuniary fine. In the State of Virginia, the longest term of imprisonment that may be imposed for this crime is six months, while in Kentucky and Tennessee the term of imprisonment may be twenty-one years, and in eight other States, twenty years, and in very many others, five and ten years. So, also, in Delaware, the crime of adultery seems not to be punishable at all, while in Vermont, Connecticut, North Dakota, and South Dakota, the punishment may be imprison- ment for five years. Bigamy, in Delaware, seems not to be a very heinous offence, the maximum imprisonment being limited to one year, while in New Jersey, North Carolina, Mississippi, and Ari- zona, imprisonment may be ten j'ears, and in Tennessee twenty-one years. In Delaware, however, rape, and the 878 CRIMINAL LAW AND PROCEDURE abuse of a female of tender years is punishable by death and no minimum penalty provided. The same is also true of Louisiana in respect to rape. In fifteen of the States, how- ever, rape may be punished by death, and in some eighteen States in all, by imprisonment for life. In Delaware, also, fornication seems not to be a punishable offence at all, while in Maine, Vermont, and Maryland it may be punished by imprisonment for five years. Again, in Delaware, arson of a dwelling-house, whether by day or by night, is punishable by death with no lesser pen- alty. This is also true of North Carolina, South Carolina, and Georgia. In eleven States in all, arson in the night season may be punished by death, and in sixteen of the States, by imprisonment for life. Death is still inflicted as the extreme penalty for rape, assault with intent to kill, administering poison, arson, bur- glary, robbery, mayhem, and perjury, or some of them, in Louisiana, Delaware, Alabama, Geoi'gia, Missouri, Virginia, North Carolina, South Carolina, Mississippi, Florida, Ken- tucky, Tennessee, Texas, Arkansas, Montana, and Maryland. As illustrative of the great lack of uniformity in punish- ment of crime throughout the United States, it is interesting to note that the punishment for counterfeiting in Ohio and Minnesota is twice that of perjury, while in Alabama the punishment for perjury is twice that of counterfeiting. In Indiana, the guilt of perjury is to incest as twent}'--one is to five, while in Kentucky the guilt of incest is to perjury as twenty-one is to five. In New York rape is punished twice as severely as incest ; three times as severely in Wisconsin, Minnesota, and Kansas ; four times as severely in Vermont ; five times in Pennsylvania ; ten times in New Hampshire ; and thirty times in New Mexico. The discussion now going on as to the wisdom of restoring the whipping-post for certain offences has directed special attention to the State of Delaware, where from Whipping. ,. . ,....,, earliest times this institution has been main- tained. The public sentiment of that State strongly ap- CRIMINAL LAW AND PROCEDURE 379 proves this method of punishment for certain crimes, and the institution has, beyond all doubt, exceptionally protected that community from the depredations of dangerous criminals, who are willing to take their chances of punishment in other States, but who have a wholesome horror of the pillory and whipping-post of Delaware. The more intelligent and expert criminals prefer to carry on their depredations elsewhere, and the class usually subjected to this punishment are the lazy and shiftless who are convicted of petty larceny and other minor offences. The court records of that State would no doubt disclose some interesting incidents of the efficiency of this method of punishment. It is related that a few years ago a half-witted negro pleaded guilty of larceny, and was sentenced to receive five lashes. As the whip was about to be laid on, he managed to get one arm released from the post, which enabled him to dodge the blows, and it is doubtful whether more than two or three strokes actually took effect. The warden, who had been counting the strokes which the sheriff laid on, called " five," and the negro became suddenly very quiet. The sheriff, no doubt nettled at the ineffectual administration of the correc- tion, added another stroke which, not being expected by the prisoner, effectually got in its work. Nothing was thought of the matter until the next term of court, when the negro called upon the Attorney-General and demanded damages for the extra stripe. The matter was brought to the atten- tion of the Court, when the Chief Justice remarked that it was without precedent, and suggested that as the prisoner would no doubt be again convicted and sentenced to be whipped, he should be credited with one lash in the execu- tion of the next sentence. The whipping of women was abolished in Delaware several years ago. The records of colonial days, however, disclose several instances where the sentence was imposed upon a woman. In 1679, one who was convicted of serious immor- alities which resulted in imposing a burden upon the com- munity, was sentenced to receive twenty-seven lashes. This 380 CRIMINAL LAW AND PROCEDURE seems, however, in her case, to have had no deterrent effect, for she again offended in this respect with the same conse- quences, for which she was given thirty-one lashes, and ban- ished from the colony. Formerly, upon conviction for murder in the second degree, the penalty was sixty lashes, and imprisonment for life. Whipping in such cases has since been abolished by legislation. From five to sixty lashes may be imposed by law, according to the offence. For larcen}^ the punishment may be from five to twenty lashes ; for setting fire to a court-house, or place where public records are kept, sixty lashes may be imposed in addition to fine and imprisonment. In most of the States, treason still remains a capital offence upon the statute-book. Prosecutions for treason against the State, however, are so infrequent that the subject no longer has much practical significance. Four of our States have adopted the experiment of abolish- ing capital punishment for murder. It has been abolished Capital for many years in Wisconsin, if, indeed, it ever punishment. existed siuce the organization of the State. In Rhode Island, the death penalty was abolished many years ago, and imprisonment for life substituted as the punishment for murder in the first degree. The laws of this State, however, still provide that a convict who commits murder while under sentence of imprisonment for life shall be hanged. In Michigan, hanging for murder was abolished in 1882, and solitary confinement at hard labor for life substituted. Treason, however, in this State is still punishable by death. In Maine, the death penalty for murder was abolished in 1887. Maine and Wisconsin, therefore, are the only States in which the death penalty may not be inflicted for any crime. In nearly all of the other States capital punishment is inflicted, and by hanging. New York in 1888 substituted electrocution for hanging, CRIMINAL LAW AND PROCEDURE 881 and Massachusetts in 1898 made a similar provision. Ohio has also recently provided for electrocution. It has been held that electrocution does not offend the pro- vision of the Federal Constitution prohibiting cruel and unusual punishments. Torture, disembowelling, branding, burning, and mutilation would probably be held to offend this provision, which is deemed to apply to all punishments so disproportionate to the offence as to shock the moral sense of the community. In Utah, a convict may elect to be shot, and if he makes no election, the Court in rendering sentence must declare the mode of administering death, which must be either by shoot- ing or hanging. Anciently it seemed to be the policy of the law that capi- tal punishment should be inflicted with great publicity. The body of the victim was allowed to hang indefinitely upon the gibbet to the terror of all wrongdoers, and the awfulness of the penalty thus publicly inflicted was supposed to have a salutary effect upon the community. The tendency of modern legislation has been in another direction. In a large number of States, statutes have been passed limiting the number of persons who may be present at an execution, and a hanging at the county seat no longer rivals the circus as a means of public recreation. In most of the States, the Court pronounces the punish- ment provided by the statute, or the measure of punishment within the limits prescribed by statute. In some g. .^ . few States the measure of punishment, within the power to fix - J punishment. statutory limitations prescribed, must be deter- mined by the jury in rendering their verdict. Where, as in murder, there are different degrees of crime, the jury, in most States, must determine the degree. In Alabama, Arkansas, Illinois, Indiana, Kentucky, Mon- tana, and North Dakota, the jury assesses the penalty within statutory limits. In Georgia, they may accompany their verdict in the case of murder with a recommendation to 382 CRIMINAL LAW AND PROCEDURE mercy, and such recommendation is binding upon the Court, and prevents the infliction of the death penalty. The sentence pronounced must be imprisonment for life. In a few States, the juiy, in a trial for a crime which may be capitally punished, may directly determine, by their ver- dict, whether the sentence shall be death or imprisonment for life. Some few States have recently provided that in trials for misdemeanor, the jury may consist of less than twelve, and Inroads on ^^^^^ *^^ vcrdict uccd not be unanimous, jury trial. j^ most radical experiment with the jury sys- tem in criminal causes has been recently attempted in Louisiana. Under the Constitution recently adopted, it is provided that until the year 1904, all trials, where the punish- ment may not be hard labor, shall be without a jury: after 1904, the legislature may provide, where the punishment may be hard labor, that the trial may be to a jury of five, all of whom must agree in the verdict; if the punishment is necessarily imprisonment at hard labor, the number of the jury must be twelve, nine of whom must concur, and in capi- tal cases the jury must be twelve in number, all of whom must concur. In 1874, the legislature of Connecticut enacted that the accused, when called upon to plead, might elect to be tried by the Court instead of by the jury, and that the Court in such case should have full power to try the cause and rendet judgment and sentence. This statute was held by the Supreme Court of that State not to be in conflict with the provision of the State Constitution providing that every per- son accused " shall have a speedy, public trial by an impar- tial jury," and "that the right of trial by jury shall remain inviolate." It was held that this right could be waived by the accused, and was waived in his election to be tried by the Court. In 1878, this statute was repealed. During the time it was 'in force, the warden of the Connecticut State Prison was brutally murdered. Two of the convicts con- CRIMINAL LAW AND PROCEDURE 383 spired with one of the keepers to procure their escape, and were provided b} this official with weapons. All three were indicted for murder. Two of them, under the statute then in force, elected to be tried by the Court, two Judges presiding. They were duly found guilty and sentenced to death, and their conviction was sustained by the Supreme Court. The result of this statute, which placed so grave a responsibility upon the bench, was generally deplored, and the statute was speedily repealed. However radical the tendency to reform our criminal pro- cedure may become, it is very doubtful if a similar experi- ment will be soon attempted. In sustaining the constitu- tionality of this statute, the Supreme Court took occasion to severely criticise the provision. " We cannot believe," says the opinion, " that it is wise or expedient to place the life or liberty of any person accused of crime, even at his own con- sent, at the disposal of one man, or any two men, so long as man is a fallible being." The great principle of the common law, declared by all our Constitutions, that no person shall be twice put in jeopardy for the same offence, would render nuga- j^^ jj-j tory any provision conferring upon the State the *" "^^™' unlimited right to appeal, when the accused had once been acquitted by the verdict of a jury. It might seem that any attempt again to try the accused, having once been found not guilty, would do violence to this constitutional provision. In many States, how- ever, a writ of error or appeal may be taken by the State from an adverse decision on a question of law, as where a statute under which the prosecution was instituted was held by the trial court to be unconstitutional, or where the indictment was held insufficient on demurrer. Most of these provisions are designed to secure the determination of a grave question of law for future guidance, and do not permit the accused to be again tried, even though the question of law, or the constitutionality of the statute, should be deter- mined in favor of the State by the appellate court. 384 CRIMINAL LAW AND PROCEDURE In some twenty of the States and Territories, provisions of this general character obtain. Connecticut has gone to the extreme in this direction, and by an Act passed in 1886, it was provided that appeals upon all questions of law may be taken by the State, with per- mission of the presiding Judge, in the same manner as if made by the accused. It was contended that this statute was in violation of the provision of the State Constitution, that " no person shall be subject, for the same offence, to be twice put in jeopardy." The constitutionality of the statute was, however, sustained by the Supreme Court. It was held that putting in jeopardy means a jeopardy that was real, in pro- ceedings conducted in all respects in strict conformity to law; that "judicious legislation for securing a full, fair, and legal trial for each criminal cause is not in derogation, but in protection of individual right, and is in full accord with the principle that no man shall be twice put in jeopardy for the same offence." In one respect, the administration of criminal law in Eng- land differs notably from the procedure in all of the Amer- ican States. Notwithstanding the numerous safeguards with which the English law surrounds one accused of crime, it has ever been reluctant to concede to one whom a jury has pronounced guilty the right of appeal to a higher court. Opportunity to review the procedure of a criininal trial is limited and restricted to very exceptional cases. Peihaps this fact has resulted in less injustice to the accused than would probably arise if the riglit of appeal in America were corre- spondingly restricted. The Judges of the English courts have ever been noted for their ability and learning. They are appointed for long terms of service, and are paid liberal salaries. The office of Judge is the worthy ambition of the most distinguished of the Bar, and hence the Judges who preside over the criminal courts in England are prob- ably, as a rule, better qualified as to knowledge of the law than the average trial Judges of our American courts. CRIMINAL LAW AND PROCEDURE 385 The extent to which appeals are allowed to the accused after conviction, in the courts on this side of the Atlan- tic, has been the occasion of much comment and adverse criticism. There are notable instances where atrocious crimes have gone unpunished by reason of the liberality of our laws in this respect. In an interesting volume of " Leading Criminal Cases Sim- plified," published some years ago by Professor John D. Lawson, of the University of Missouri, there Miscarriages will be found a very curious article entitled <'fj"^"'=^- " My Assize Sermon to the Judges of Appeal." The au- thor has there collated, in a startling and impressive manner, several instances in which atrocious criminals have escaped their deserts through trivial irregularities of procedure, dis- covered by the .appellate courts. Surely it is more than absurd that one convicted of murder should escape his punishment, because in the indictment the breast of the victim, into which he plunged his fatal dagger, was spelled "brest;" or that another murderer should be set at large, because the indictment charged that his victim " did in- stantly die," instead of " did then and there die." It is certainly a serious defect in our criminal procedure which even permits an indefinite postponement of punish- ment, in the case of one whose guilt has been clearly and conclusively established to the satisfaction of twelve of his countrymen. The liberal provisions which exist in Amer- ica, according to the accused practically an unrestricted right of appeal, have no doubt resulted, in many States, in serious abuse, and tended, to some extent, to encourage a contempt for the law. It is said that in the United States more persons suffer the penalty of death from lynching than from the legal execution of the sentences of courts of justice, and that doubtless the criminal procedure consequent upon this right of appeal, coupled with a too rigid regard for technicalities by our appellate courts, has led to this result. The case of Kring, which arose in Missouri, is a notable 25 386 CRIMINAL LAW AND PROCEDURE and startling example of the miscarriage of justice for the reasons here adverted to. Kring was indicted for murder in the first degree in the criminal court of St. Louis, in January, 1875. After his case had been three times before the Court of Appeals, and three times before the Supreme Court of that State, a judgment finding him guilty of murder in the first degree, upon which he was sentenced to be hanged, was finally affirmed. In 1882, he brought his case upon a writ of error to the Supreme Court of the United States, and the judgment of the Supreme Court of Missouri was reversed. An account of this remarkable case, as published in the American Law Review in 1883, may be of interest : " Judge Hayden has exposed the workings of the criminal law in Missouri in an unique manner, by holding up to view the case of the late Charles F. Kring, who was indicted in 1876 for a most atrocious murder; was tried and convicted of murder in the first degree, and the judgment finally reversed in the Supreme Court; was again tried and a mistrial entered, the jury failing to agree; was then suffered to plead guilty to murder in the second degree, under a secret bargain with the acting Prosecuting Attorney, that he should receive a sentence of but ten years' imprisonment, from which should be deducted the time he had already lain in jail; how the Court refused to ratify this bargain and required him to stand upon his plea unconditionally, or else plead to the indictment in chief, and undergo another trial; how he refused to plead in chief, and was then sentenced on his plea to twenty-five years in the peni- tentiary ; how he appealed to the Supreme Court, now claiming and struggling for the right to plead not guilty to the indict- ment in chief; how the Supreme Court accorded this right to him, again reversing the judgment; how, when he got back to the trial court, he did not want this right, but insisted that he should be sentenced according to his secret and void bargain with the acting Prosecuting Attorney ; how this being refused, a plea of not guilty was entered to the indictment generally, and he was again tried and convicted of murder in the first degree ; how the St. Louis Court of Appeals, to which he now CRIMINAL LAW AND PROCEDURE 387 appealed, having examined the record, found no error in it and refused to stay the execution; how the Chief Justice of the Supreme Court of Missouri, the case not pending in his Court, not before him in any judicial way, and he having no more jurisdiction in the premises than a justice of the peace had, by an extraordinary misconception of his powers, procured the record of another court, the Court of Appeals, and indorsed thereon a stay of the execution, which the sheriff obeyed; how, subsequently, the judgment was unanimously affirmed in the Court of Appeals and the Supreme Court; how a Justice of the Supreme Court of the United States, happening to be in Mis- souri upon a particular occasion, granted a writ of error upon a petition drawn up by the prisoner's lawyers, refusing to hear any argument from the State's counsel; how the Supreme Court of the United States, by a divided court, five against four, re- versed the judgment of the Supreme Court of Missouri, holding that the prisoner could not be tried for a higher grade of offence charged than murder in the second degree; how he was subse- quently admitted to bail, went to a hospital, confessed his sins, was baptized, received into the Church, received the sacraments, and died in his bed like an even Christian, after having defied the law for eight years and after having for eight years acted as the adviser of the criminal classes in jail, and after having com- mitted crimes even in jail which would not be believed if set down in print. " The result was not more deserving of thoughtful attention than the processes through which the case went. By the unique and absurd rulings of the various courts which culminated in the final decision of the highest court in the Union, a man who had murdered another man's wife, and a quick child in her womb, because she refused to leave her husband and become his mistress, was entitled to have the rules of procedure which existed at the time of the murder kept unchanged for his par- ticular benefit, through all the subsequent successions of trials and retrials. When he committed the murder, the law was such that if he should plead guilty then to murder in the second degree, and the plea should be accepted as valid, and afterwards be set aside, he could not thereafter be put upon trial for murder in the first degree. When he pleaded guilty to murder in the second degree, the law was such that, if the plea should be set 388 CRIMINAL LAW AND PROCEDURE aside, he might again be put on trial for murder in the first degree. He entered his plea in the face of the law as it then existed. The law was not changed between the time when he entered it and the time when he was again put on trial for murder in the first degree, but it was in fact changed nearly three years before, and before the date of the first trial. " Whatever may be said in favor of the learning and research displayed in the opinion in which this result was reasoned out, no average man will be found who will say that there was any sense in the result. If it were told to an English lawyer, it would provoke laughter and derision. The absurdity was heightened by the fact that the processes culminated in five judges overruling thirteen. Such spectacles unquestionably tend to bring the judges and the administration of justice into gen- eral popular disrepute, and it is not easy to say that the ill opinion which is thus engendered is not deserved. If a code will get the administration of justice oxit of such quagmires, by all means let us have a code. The growth of lynch law in all parts of the country is nothing more than a popular revolt against this kind of justice. A newspaper statistician in Chi- cago recently compiled and published a statement showing that throughout the United States the number of men hanged for crime by mobs is just about equal to the number executed at the hands of the law. No one can doubt the general truth of the statement. It is disgraceful to the American people in the last degree that it should be so. It is difficult to see how any American, in view of such a state of things, can travel in Europe without hanging his head in shame." It is not strange that such a remarkable case as this should attract wide attention, and lead to the impression that abuses of this description were more frequent than a careful examination seems to justify. The right of appeal is afforded the accused in all the courts of America, unless it be in Delaware. In that State, Appeal in three Judges always preside in the trial of criminal Delaware. causes, and four of them when the offence is capital. In that case it would seem that the trial itself takes place in a court representing all the dignity and intelligence of a court of last resort. CRIMINAL LAW AND PROCEDURE 389 For very many reasons, among them those already referred to, it would undoubtedly be inexpedient to curtail consider- ably, in America, the right of the accused to have, in proper cases, a legal review of his trial in a court of last resort. The conclusions of appellate tribunals, unaffected by the peculiar facts and circumstances surrounding each case, effec- tually tend towards uniformity in the application of the great principles of the common law. To make the determination of the trial court final and conclusive would not only promote uncertainty in the law, but would undoubtedly increase the instances now deemed to be infrequent, where an innocent man is compelled to pay the penalty of an atrocious crime. It is believed that the sentiment of the judiciary, as well as of the Bar of America, would be strongly opposed to any such radical change in our procedure as would deprive the accused of the right of appeal. Undoubtedly, in many States the statutes in this respect are too liberal to the accused, and large opportunities are afforded to him to obtain in this manner an uiu-easonable postponement of the penalty which justice demands. So, too, in very many cases, appellate tribunals have been over-nice in finding technical defects in procedure as a ground for setting aside a conviction, where an examination of the whole record must have convinced them that the con- viction was just. A few years ago, some of the most flagrant abuses result- ing from this right of appeal were brought to the attention of the American Bar Association. In an address delivered before that association by a distinguished Justice of the Supreme Court of the United States, it was contended that the end of litigation should always be in the trial court, and that in no criminal cause should there be a right of appeal. The subject was referred to an appropriate committee of that association for investigation. Opinions were solicited from distinguished lawyers and Judges in every State in the Union. The great weight of authority thus secured was to the effect that the right of review now accorded to the accused by means of 390 CRIMINAL LAW AND PROCEDURE appeal ought not to be materially abridged, and that cases of notable abuse were far less numerous than had been supposed. In the trial court the accused is often represented by a young lawyer of limited experience and professional attain- ment. The State, on the other hand, is usually represented by an eminent lawyer, selected by reason of his conspicuous ability, who necessarily has with the jury the powerful influ- ence of official position and long experience. The trial Judge is often compelled to rule instantly upon important questions of evidence and procedure without an opportunity for reflec- tion and investigation. As our courts are now constituted, it is believed that incalculable injustice would result from any material restriction of the right of appeal. The criminal laws of every nation reflect notably the ethi- cal characteristics of the people of which the nation is composed. The laws should ever be in harmony with the people's notion of justice and expediency. A penal code of ideal perfection would be worse than useless unless the people had attained a like degree of perfection. Public opinion in all modern governments has become the higher law. To legislate much in advance of the average ethical standard of the people is sometimes disastrous, always inexpedient. The welfare of the State depends therefore first of all upon those agencies of religion and humanity which tend to mould, direct, and enlighten the popular conscience. XIV PATENTS 1701-1901 BY WILLIAM K. TOWNSEND, D. C. L. " What a plastic little creature man is ! so shifty, so adaptive ! his body a chest of tools, and he making himself comfortable in every climate, in every condition." Emekson. Ever since Adam and Eve " sewed fig-leaves together and made themselves aprons," the field of arts has been receiving contributions of inventive thought and mechanical skill to mitigate the rigors of the original curse. Nor have these inventive contributions been furnished solely by civilized peoples. Thus, the hafts and attachments of the aboriginal weapons disclose or suggest many of the de- vices tosed as handles for the modern tool. Thus, too, the Eskimos may be said to have anticipated the pneumatic tire and the compound pulley, and the Zuni Indians the spindle and fly-wheel. The art of printing was practised by the Chinese in the time of Julius Caesar. A striking illustration of this characteristic of invention was furnished in a case recently heard by the writer where a patent for a singularly novel and ingenious spiral wind of thread was invalidated by an exhibit of rolls similarly wound by the Fiji Islanders long prior to the date of the patent.^ The laws of patents in this country is an inheritance from the royal grants of monopolies in England. There ^^. Eneiish is this radical difference, however. By such grants monopolies.. public property was taken from the public and given to 1 Universal Winding Co. v. Willimantic Linen Co., 82 Federal Reporter, 228. 392 PATENTS the individual : by the grant of a patent the invention of the patent is bestowed upon the public under a contract for mutual benefit. Prior to the adoption of the Constitution, the Colonies and States had exercised without question the prerogative of Colonial granting monopolies by way of reward. Some monopolies. of thcsc grants were conditioned upon the pres- ence of invention; others were issued irrespective of its absence. The General Court of Massachusetts made the first grant in 1641 for a method of manufacturing salt. Con- necticut "appears to have been the most far-sighted and liberal in the number of its grants for the promotion of the useful arts." ^ By a general law passed prior to 1672, which declared against any monopoly " but such inventions as shall be adjudged profitable to the country," it laid the foundation of the present pre-eminence of its inhabitants in the number and value of their patents." ^ The Act of Congress of 1793 seems to recognize the right of a State to grant a patent. The courts of New York have decided in favor of such right.^ The Supreme Court of the United States has left the question open. Among the constitutional grants to Congress was the power to promote the progress of useful arts by securing for Patent Act limited times to inventors the exclusive right to of 1790. their discoveries. Under this authority the first general Patent Act of the United States was passed in 1790. The Secretary of State, Secretary of War, and the Attorney- General, or any two of them, were authorized to grant a patent on the petition of any one setting forth that he had made any new or useful invention, provided they deemed such invention sufficiently useful and important. The first patent was issued in 1790 and was for "making Pot and Pearl Ashes." ^ Campbell's History of Patent Si/stem of the United States, p. 10. 2 Revision, 1702, p. 86. ^ Livingston v. Van Ingen, 9 Johnson's (N. Y.) Eeports, 507. PATENTS 393 By the Act of 1793, the responsibility of issuing a patent was intrusted to the Secretary of State after approval by the Attorney-General. This Act was modelled patent Act after the English patent system. Under it pat- "^i^^^- ents were ordinarily granted as a matter of course without examination, on the mere presentation of a petition. The relinquishment of any exclusive right to an invention granted by a State was a prerequisite to obtaining a patent. It was not until 1836 that the Patent Office was established with a Commissioner of Patents at its head, thus making ample provision for the protection of the public. Patent Office This Act discarded the English system of a grant «stabiishea. without investigation and restored the earlier system of ex- amination prior to the grant. The real history of the patent law in this country dates from that time. The United States, by its statutes, says to the whole world that whoever will first furnish to its citizens such knowl- edge of some beneficial process, device, or manufacture, in- vented by him, as shall enable them ultimately to receive its advantages, shall have the exclusive right to control its enjoy- ment here during a term of seventeen years. ^ The inventor who thus secures the protection of the patent law occupies a unique position. While he is the most arbi- trary of monopolists, his privileges are more jeal- The patentee's ously guarded than are the rights of a ward in P"^''«g«s. chancery or of a seaman in admiralty. The reasons for this peculiar regard are found in the character of the inventor's wares and of their ownership. They may be more important to the world than were the Sibylline Books to Rome, yet he can conceal them, and the world will never be the wiser : they are personal to the individual and to him only ; and true inventive genius is a rare quality possessed by few. The characteristic impracticability of the great inventor justifies every provision of law and presumption of fact in his favor. The dreamer who sees visions which seem mere perverted notions to the artisan, may yet, by the stimulus of 1 Hanifen v. Price, 96 Federal Reporter, 435. 394 PATENTS offered reward, be awakened by want or by chance so to tell the story, or draw the sketch of his dream, that the world may imderstand and apply, and for all time enjoy, the fruits of his invention. Thus, Argand conceived the idea of his burner ; his brother accidentally supplied the glass chimney. Welsbach's mantle remained a laboratory experiment until the practical minds of lesser inventors transformed it into an article of commerce. The toy of Arago's rotation has been developed into a source of almost unlimited electrical energy. And while the histo- rian records as one of Argand 's visionary notions " to obtain from the bones and dust of the sepulchre the means of pro- longing life," who can say that if the appropriation of his invention had not broken his heart and shortened his life, he might not have suggested to the practical world some Antsean method of renewing youth and life, no stranger or more vis- ionary than would have seemed to his historian the germ theory and treatment of to-day ? The right of the inventor is based on the ordinary rule of consideration in the law of contracts. A hundred years ago, The considera- ^"^ English Judge stated that patents were bar- tion for patent, g^^jjg between invcutors and the public, to be judged on the principle of good faith, and to be construed as other bargains or contracts were construed.^ This principle has always been applied in the United States. Here patents have been from the first liberally regarded, as monopolies beneficial to the public and justifiable on the ground of the consideration furnished by the inventor, and of the stimulus to make, and the inducement to disclose, inventions. Eaviv de- "'■^ *^^ early history of the patent law this ques- cisions: tion of invention was scarcelv discussed at all. invention. , -i nnt- in- t r-. In 1825, Mr. Justice Story states the law thus : " It is of no consequence whether the thing be simple or com- plicated — if it is new, if it is useful, if it has not been known or used before, it constitutes an invention within the very terms of 1 Harmer v. Playne, 11 East's Eeports, 101. PATENTS 395 the Act, and in my judgment within the very sense and intend- ment of the legislature." ^ He further holds that the argument that there must be mental labor and intellectual creation, or that if the patented thing is the result of accident, it must be what would not occur to persons skilled in the art, is an unsound " mode of reasoning upon the metaphysical nature or the abstract defi- nition of an invention " which cannot be justly applied in patent cases. The history of patents in this country would have been an uneventful one if this law had remained unchanged. But while our courts have continued to favor protection to true inventive genius, they and the inventor have grown wiser by reason of the lessons of the latter half of the nineteenth century. Coincident with the development of our industries came the great inventions of the century just closed, steam-power, cotton-gins, looms, manufacturing machinery, india-rubber, mowing-machines, reapers, telegraphs, telephones, electric motors and lights : each primary invention opening up a vast field of undeveloped possibilities. The inventive genius of great minds thus revolutionized the processes of labor, the modes and methods of transportation, the character of finished products. Then after each principal pioneer invention followed a great host of minor improvements. Very many of these would necessarily have occurred to skilled mechanics when once the primary invention was disclosed and the object to be attained understood, and they were simply incident to the ordinary course of manufacture. But in this lesser field of minor inventions artisans, by means of patents for mere modi- fications, prevented others from making or using obvious im- provements on existing devices. Thus they obliged the public to pay tribute for monopolies which had no foundation in real merit and furnished no constitutional or contractual consideration of invention. 1 Earle v. Sawyer, 4 Mason's Reports (Circuit Court), 5. 396 PA TENTS At length, when the inventive field became so crovrded with secondary patents that there was no standing room for an inventor, and no pathway open for forward Novelty; ^ i , i- aggregation ; progress to the Workman or the public, the courts undertook to find a remedy for this evil. They began to hold that the mere production of something shown not to have been before made did not of itself furnish the consideration for a monopoly, but that such production must have required invention in order to entitle it to the protection of the patent law, and that if the improvement was one which would have naturally occurred to those skilled in the art, or would have been worked out by the ordinary mechanic, then it is but a part of the world's ordinary progress and should be paid for in wages only. Between the years 1880 and 1890, the Supreme Court repeatedly asserted this doctrine, applying it in the case of new forms of manufacture and new combinations of existing devices having superior utility but not requiring inventive conception. Accordingly, it is now settled that the production of im- provements reasonably certain to have been adopted in the development of a new branch of industry opened up by invention does not entitle the producer to a monopoly. The Patent Office, however, has generally issued a patent to any one who produced a device not before known, unless it was considered reasonably clear that such device did not involve invention. Therefore, in finding a remedy for the evils above stated, the courts have held invalid a large per- centage of litigated patents. This doctrine of the necessity of patentable invention as well as novelty has changed the whole face of patent htiga- tion. The question is no longer, " Is it new ? " alone ; but " Is it such as would have occurred to a skilled mechanic without the exercise of inventive genius? " The changes in the law on this subject make the history of patent law in the United States. The definition of invention, however, and the attempts to PATENTS 397 lay down practical rules for determining its presence, have been prolific in illustrations of the glorious uncertainty of the law. Each Judge must determine for himself in -y^hat is each case, as a question of fact, whether the device invention ? involves invention ; and in the event of a jury trial, which sometimes, though seldom, occurs in patent cases, this question must be left to the jury like any other matter of fact. The courts are already committed to the proposition that the operations of the human mind are too mysterious to be safely made the foundation of a judgment. And when there is projected upon the individual sensoria of a hundred Judges in this country the picture of the imaginary mechanic, skilled in an art of which perhaps the Judge has never known any- thing until the morning of the hearing ; when this imaginary personage must be further presumed to have had before him every created thing known in this country, and every patent or other printed publication throughout the world ; when the question must be determined whether, with all these aids, he could have done what the patentee has done, — is it any wonder that the bewildered Judge longs for the ancient mode of de- ciding by lot or wager of battle, and that the patentee stands aghast on the threshold of such an inquiry, confronted by the spectres of devices of which he never dreamed, but which he must lay, lest they rob him of his invention ? The storm centre of patent litigation is invention. To de- fine that intangible something ; to set up a standard whereby one may distinguish between the highly developed processes of the skilled mechanic, and the often clumsy contrivances of the impracticable or unskilled inventor, — has hitherto bafBed the ingenuity of counsel and court. " The invention all admired, and each, how he To be the inventor missed ; so easy it seemed, Once found, which yet unfound, most would have thought impossible."^ The inherent essence of patentable novelty is akin to the Argument of Design. In any event, the works of metaphysi- 1 Milton, Paradise Lost, book ri. line 499. 398 PATENTS cians and theologians on its evidences in the natural world are helpful in determining the question of patentability. Thus Mozlej' discusses Lamarck's theory that the Novelty. animal organs are developed by means of new instinctive efforts to satisfy new needs, created by new cir- cumstances resulting in new adaptations. The physical need incites the instinct. He points out further how the perfect steam-engine owes to the natural selection of trade the de- struction of the imperfect steam-engine ; and shows how an intelligence, taking advantage of each successive stage in the progress, rises to a higher one ; and how the succeeding mind, knowing the discovery of the preceding one, " has fitted on his own to it, and has risen by starting upon its platform ; and a unity of design, though the current has used genera- tions as its channels, thus appears in the construction of the work. . . . Thus design is tied to the facts of contriv- ance, and cannot be divorced from them." It may be said that these are mere metaphysical specula- tions ; but what more fitly serves to illustrate the tests ap- plied by the courts to determine invention ? Is it too much to say that the distinction between invention and mechanical skill is like that between the results of man's animal instincts and the evidences of skill in manual callings ? Instinct alone insensibly develops the animal. In man instinct and intelligence create and disclose the hitherto unconceived possibilities of development which we call invention. Patents are "^^^ grant of a patent is only prima facie primafacie evidence that it describes a new and useful evidence. invention. The patentee demands the enforcement of the contract for the statutory monopoly of seventeen years, implied by his patent. The public denies the validity of the contract on the ground of the lack of the alleged consideration. In such a case the Court may put itself as nearly as possible in the situa- tion of the parties for the purpose of determining the object they had in view, and their respective rights and obligations. By a review of the state of the art, it may ascertain what the PATENTS 399 public already had, what it still required, what the patentee sought to accomplish, what was the measure of his success, and what was the character of the means by which it was achieved. If it appears that the public has only received from the patentee such improvement in means or result as it might have procured by presenting its wants to a skilful mechanic, provided with the appropriate appliances and knowledge, then there is no reason why the patentee should be permitted to demand a monopoly as the price of a con- struction which would naturally have been disclosed in the ordinary development of the art. But if the results of the skill of the artisan still leave the barrier of impracticability between the end sought and the result attained, an interval between theory and practice, a limitation upon further de- velopment, while the inventor, by the exercise of a discrimi- nating faculty, distinguishes difficulties, and estimates their proportions, and breaks down the barrier, or bridges the interval, or stretches beyond the limitation, by an instrumen- tality which, in the very facts of its construction and opera- tion, by the adaptation of its mechanism to the end sought, suggests original and creative design, then he has contrib- uted something of creative thought, he has invented this new instrumentality, his contract is valid, and his monopoly should be sustained. Given the problem, no better method of solution has ever been suggested than that which the courts have adopted. They decline to define invention, but they accept and apply certain negative tests which in a majority of cases satisfac- torily settle the questions presented. Among these the principal place must be given to the " prior art." For practical reasons the courts require patent- able novelty as well as invention. That is, as prior state before suggested, the question is not, " Did ° the patentee actually exercise the inventive faculty ? " but, "If the patentee had known every kindred device ever in use in the United States or described anywhere in any prior patent or other printed publication, would his con- 400 PA TENTS struction have required anything higher than the skill of the artisan ? " The correctness of this test has been upheld by the Supreme Court of the United States in its last expression on this subject, in which it decided that the first application to windmills of an old contrivance for the purpose of converting a rotary into a reciprocating motion did not involve an exer- cise of the inventive faculty. Mr. Justice Brown, delivering the opinion, admirably stated the law on this point as follows : — " The line between invention and mechanical skill is often an exceedingly difficult one to draw; but in view of the state of the art as heretofore shown, we cannot say that the application of this old device to a use which was only new in the particular machine to which it was applied, was anything more than would have been suggested to an intelligent mechanic, who had before him the patents to which we have called attention. While it is entirely true that the facts that this change had not occurred to any mechanic familiar with windmills is evidence of something more than mechanical skill in the person who did discover it, it is probable that no one of these was fully aware of the state of the art and the prior devices ; but, as before stated, in determin- ing the question of invention, we must presume the patentee was fully informed of everything which preceded him, whether such were the actual fact or not." * Another test is that of " double use." This rests on the rule that there can be no invention in the use of an old means for a new or analogous purpose. This general doctrine euse. -g illustrated by decisions that the following patents were invalid ; namely, for a ladies' dress form pat- tern because it was nothing more than another use of an ordinary umbrella construction ; ^ for the upwardly spring pressed pole of the overhead trolley because it was only an- other use of the familiar rotary spring device attached to ani- 1 Mast, Foos & Co. v. Stover Mfg. Co., 177 United States Keporta, 493, 494. ' Knapp V. Morss, 150 United States Reports, 221. PA TENTS 401 mal tethers and tilting office chairs ; ^ the back-up hose air- brake attachment for a railway car because it was another use of the ordinary garden hose in the same manner as it had been previously applied to an older air-brake system ;2 for a process of restoring the temper of coiled furniture springs because it required only mechanical skill to adapt the old use for blued hair springs in clocks to this new use.^ The limitations on tlais rule will be considered later. When the infringer throws down the gauntlet to the in- ventor on the issue of a mere improvement, all the tactics of the contestants are brought into play according to the rules of the game. If the defendant has first endeavored to show a complete anticipation or a direct double use and failed, he may still contend that the patent is merely the mechanical carrying forward of an old idea with a result of superiority of finish or degree not involving invention. Thus where patents were granted for an improvement in the manufacture of moulding crucibles by which much labor and expense were saved,* and for an improved elastic goring which sup- planted every other fabric,^ they were held invalid as being due merely to the perfection of the machinery or the skill of the mechanic. A patent for a new and useful revenue stamp which effectually prevented frauds on the government was held to be invalid, because as soon as the mischief became apparent and the remedy was needed, those persons to whom the matter was presented promptly and naturally suggested such a form of stamp, in the same way as a skilled mechanic witnessing the imperfect performance of a machine might as a result of his common knowledge and experience supply the obvious defect. " It is but the display of the expected skill of the calling, and involves only the exercise of the ordinary faculties of reasoning upon the materials supplied by a 1 Thomson-Honston v. Winchester E. Co., 71 Federal Reporter, 192. 2 Plumb V. N. Y., N. H., & H. R. R. Co., 97 Federal Reporter, 645. ' Lovell Manufacturing Co. v. Cary, 147 United States Reports, 623. * Pickering v. McCuUough, 104 United States Reports, 310. 5 Smitli V. Nichols, 21 Wallace's Reports (U. S.), 112. 26 402 PATENTS special knowledge, and the facility of manipulation which results from its habitual and intelligent practice ; and is in no sense the creative work of that inventive faculty which it is the purpose of the Constitution and the patent laws to en- courage and reward." ^ Another test is aggregation. A mere aggregation is not patentable. But a combination which introduces new prin- ciples of co-operation is patentable. The essence ggrega ion. ^^ ^ combination is co-action, not mere juxtaposi- tion. Unless the joint product of the operation of the old elements is new and useful; unless the co-action or co-opera- tion of the united elements is essential in obtaining the result, there is only an unpatentable aggregation. This doctrine is comparatively new : it does not seem to have been suggested until 1867;^ it was affirmatively applied by the Supreme Court in 1873 in the consideration of a patent for a base burning stove.^ Since that time it has been extensively applied. The difficulty in applying this distinction is strik- ingly illustrated by the division of the Supreme Court of the United States over the question whether the addition of a rubber tip to a lead pencil constituted a valid combination or . a void aggregation. A majority of the Court held it to be a mere aggregation and void.* It has recently been held that a bookcase comprising roller shelves with recesses to permit the insertion of the hand, which produced a more convenient and salable shelf than any which had preceded it, was a mere aggregation and not patentable.^ It must not be supposed, however, that the courts are hostile to the really meritorious inventor, or that the develop- ment of patent law has been wholly adverse to him. Thus the Supreme Court in a case which involved the substitution, ^ Hollister v. Benedict, 113 United States Reports, 59. 2 Swift V. Whisen, No. 13,700 Federal Cases, 570. ° Hailes v. VanWormer, 20 Wallace's Reports, 353. * Reckendorfer v. Faber, 92 United States Reports, 357. ^ Office Specialty Manufacturing Co. v. Fenton Manufacturing Co., 174 United States Reports, 492. PATENTS 403 f OX" glass bars in the wood-polishing art, of steel bars in the clay- grinding art, held that a double use might involve invention provided the second use was in a branch of industry totally different from that in question, that is, in a " remote art." ^ And the following patents have been held valid on the ground that the new use was not analogous to the old, or produced a new result, or required material alterations to adapt it to the new industry ; namely, for the use of anthracite instead of bituminous coal in smelting iron ; ^ for the use of warp threads heavier than the weft in belting canvas ; ^ for the application of torsional furniture springs to telegraph instruments ; * for the use of vulcanite instead of other material for plates for false teeth.^ In fact, in one case Judge Blatchford said that a patent for coating a metallic wire with gutta-percha, the effect of which was to insulate the wire, would not be for a double use even if a metallic wire covered with gutta-percha had previously existed, provided it was not previously known that gutta-percha was a non-conductor and could be used to insu- late wire.® So also a new combination of known devices which increased the effectiveness of a loom so that it wove fifty yards of carpet a day where it had previously woven only forty was held to be patentable as producing a new and useful result.'^ Success where others have failed is, perhaps, the only afSrmative, and is certainly one of the most satisfactory, tests of utility and invention. Especially is this true Success. where it is secured by the abandonment of exist- ing theories and methods to secure an old result, or where a new result is a non-analogous or unexpected one. But inventive success must not be confounded with commercial success. Success when shown, for example, by the extent to 1 Potts V. Creager, 155 Uuited States Reports, 597. 2 Crane v. Price, cited 11 Howard's Reports (U. S.), 256. ' Gandy v. Main Belting Co., 143 United States Reports, 587. * Western Electric Co. v. La Rue, 139 United States Reports, 601. 5 Smith V. Goodyear, 93 United States Reports, 486. ° Colgate V. Western Union Telegraph Co., 15 Blatchford's Circuit Court Reports, 365. ' Loom Co. u. Higgins, 105 United States Reports, 580. 404 PATENTS whicli the article has gone into general use, is an unsafe cri- terion unless it affirmatively appears that such commercial success was due not to the advertising activity of the owner of the patent, but to the superiority of the new device.^ When, however, a number of independent inventors con- fronted by the problems presented by an imperfectly de- veloped art have been long engaged in attempting its solution, and when finally one first devises means whereby a practical result is secured, this furnishes persuasive evidence of the genius of invention, and, as the Supreme Court has said, courts have not been reluctant to reward as an inventor the person who has overcome such obstacles, has taken the final step, and has achieved success.^ Thus, if one should now produce non-crackable patent leather; a Welsbach mantle which would not crumble ; an incandescent lamp which did not need to be renewed; an arc light which would not sputter, — patents therefor would probably be sustained, no matter how simple might seem to be the method employed. The rule formerly adopted that one cannot patent a prin- ciple has been practically modified in favor of meritorious Patenting a inventors. This may be illustrated by a com- pnncipie. parison of the decisions of the Supreme Court in the telegraph and telephone cases. The Court found that Morse was the original inventor of the art of conveying intelligence to a distance by telegraph, but they denied the patent claim for this broad invention.^ In the next generation the same Court found that Bell was the first inventor of the art of transmitting articulate speech to a dis- tance by telephone, and sustained a patent for the broad invention.* The distinction attempted is that, in the former case, the claim was for an effect distinct from the process or machinery necessary to produce it, while in the latter, the 1 Magowan w. N. Y. Co., 141 United States Reports, 332 ; McClaiu v. Ortmayer, 141 United States Reports, 427. '' The Barbed Wire Patent, 143 United States Reports, 283. = O'Reilly v. Morse, 15 Howard's Reports, 62. * Telephone Cases, 126 United States Reports, 2. PATENTS 405 claim was for sucli a use of an electric current in a certain condition as would transmit speech. The Court concedes, however, that the effect of the allowance of this claim may be to give Bell the exclusive use of electricity for this purpose. The result of these decisions now seems to be that one may have a valid patent for a principle provided he discovers and at the same time patents a means or process by which the principle is utilized. The statute requires that the patent shall be for a useful as well as new art, manufacture, or device, but this require- ment has been substantially nullified in favor of the inventor by the ruling that utility is satisfied by proof that the article may be applied to practical uses and is not harmful or op- posed to public health or morals. Thus, while a dangerous toy pistol would not be patentably useful ; nor the nickel-in- the-slot automatic race-course devices used for gambling pur- poses ; 1 nor a process of spotting tobacco leaves so as to simulate the natural spotted leaf and secure larger sales ; ^ yet an artificial honey which resembled, but was cheaper than, real honey, ^ a form of package devised to keep chew- ing tobacco moist, and a hair dye have been protected.* Second only in importance to the question of invention is that of infringement, which consists in unlawfully making, selling, or using in this country any article con- ° ° , . . . . 1 Infringement. taming the patented invention or its equivalent. As soon as the patented thing is shown to be useful, it will be imitated. Thereupon the patentee may sue at law and have his damages assessed by a jury, or in Equity, which is the usual course, and apply for a temporary or perpetual injunction. In such suit the plaintiff must prove title, in- fringement, and notice of his patent to the infringer as by having duly stamped the article "Patented." The fact that the patent issued, is sufficient proof in the first instance that it is for a new and useful invention. During the early his- 1 National Aut. Device Co. v. Lloyd, 40 Federal Reporter, 89. 2 Rickard v. Du Bon, 97 Federal Reporter, 96. ' Re Corbin, 6 Federal Cases, No. 3,224. 1 Imperial Chemical Co. v. Stein, 69 Federal Reporter, 616. 406 PATENTS tory of the law, and in fact up to 1870, a patentee could obtain a preliminary injunction against infringement upon affidavit when his right was clear, without proof of validity. Now, however, a temporary injunction is only granted in extraordinary cases, as, for example, where the patentee has already fought out and vindicated his rights in another case. The patent laws of the United States are intended to safe- guard the rights of inventors fully. Theoretically, the legal protection is absolute; yet often, practically, the word of promise is broken to the hope of the luckless patentee who finds himself assailed by infringers, with denials of novelty and infringement, supported by the history of the prior art, frequently forcibly suggestive of the naivete of the French '''"Brevete sans garantie de gouvernement." If the prior art> shows anticipation, — that is, if the prior thing is identical, — the patent is, of course, void. The test question in infringement cases is whether the alleged in- fringer uses an equivalent. The first inquiry is whether the patent is a primary one ; that is, for a pioneer invention, — the first embodiment of a P^i^j, means for the accomplishment of the general re- patents. gujt;_ Such an invention necessarily performs new mechanical functions. In the case of a primary patent greater liberality is shown in construing its claims so as to protect it against equiva- lents, and differing constructions designed to effect the same result, even though never before used for this particular pur- pose, will be held to be an infringement when the similarity would not be sufficient to constitute infringement of a minor patent. That is, a primary patent covers a broader range of equivalents. 1 Thereby the reward may be proportioned to the greater con- sideration furnished the public, by securing to such pioneer the practical monopoly of the whole invention in every known form. This doctrine is especially applicable to great generic 1 Miller v. Eagle Manufacturing Co., 151 United States Reports, 186. PATENTS 407 inventions or discoveries such as tlie telegraph, the tele- phone, incandescent lights, and coal tar colors. It is also extended into fields of less importance where the inventor was first in the field. Thus, the first inventor of an auto- matic hutton sewing-machine, by which buttons in a mass were fed to a sewing-machine and secured to the fabric, was protected against infringement not only of the special devices claimed by him for this purpose, but against different devices combined to produce the same result, ^ and the first inventor of a practical trunk fastener was held to be a pioneer and protected against a rival inventor who made a fastener differ- ing in appearance.^ Evidence of the prior art, therefore, is introduced, not only to prove that the improvement or new device is the result of mere mechanical skill, but also to show that the real invention, if any, must be very narrowly construed. The effect of such latter construction is to relegate the patent from the position of a primary patent to that of a minor^ patent and to support the claim of non-infringement of the patent as thus construed. Following in the wake of every great invention come the numerous applications above referred to for patents for small improvements dangerously near or on the border , ... mi • • 1- 1 1 Improvements. line of patentability. Thus, m electric light and power apparatus, in bicycles, air-brakes, aniline colors, old devices or combinations merely adapted to meet new condi- tions have been claimed as patentable inventions regardless of the doctrines of double use, prior state of the art, aggre- gation, etc. Thus, every man who improves an electrical •device or applies an old device to an electric use claims a patent on the ground that his improvement relates to the new and mysterious agent, electricity. It has therefore been found necessary in such cases to hold that if there be any patentable novelty in such narrow or secondary invention, it 1 Morley Machine Co. v. Lancaster, 1 29 United States Pieports, 284. * Sessions w. Romadka, 145 United States Reports, 29. 408 PATENTS must be limited to the precise form described and claimed by the patentee or its clear mechanical equivalent. Secondary inventions are those of a new and improved form of structure or a specific device, among a variety of Secondar}' similar devices, which accomplishes an old result, inventions. or spccific mechanism preceded by a series of like improvements. For example, a washboard having patent right-angled grooves is not infringed hj one having diamond- shaped grooves ; ^ nor a pin-hole and pin-valve device, by an old screw sleeve or cap device which accomplishes the same result ; ^ nor a snap hook with a solid pivot by one whose pivot was not cast as part of the hook.^ The scope of the monopoly is defined and limited by the claims of the patent, each of which is supposed to cover a Claims distiuct invention. By these claims the patentee of patent. stakes out his boundaries, which must remain fixed ; they cannot be marked as by a rolling stone or by a football which the patentee may kick about. Hence, every- thing stated by the patentee in the specification or descriptive part of his patent is abandoned and dedicated to the public unless included in the claim. It is to be strictly construed. It is "not like a nose of wax," to be twisted in any direction to suit the exigencies of the patentee.* If the patentee has thus been obliged to make admissions as to the character or scope of his invention, or to erase or amend his claims, he is irretrievably bound thereby, and he cannot afterwards claim a construction of his patent inconsis- tent with such admission or amendment.® The whole history of the application in the Patent Office is embodied and pre- served in what, after issuance of the patent, is known as the "file wrapper and contents," to be brought forward in case of litigation for the confusion of the patentee and the delectation of his opponent. 1 DofE V. Sterling Pump Co., 107 United States Reports, 636. 2 Blake v. San Francisco, 113 United States Reports, 679. 8 Bragg V. Fitch, 121 United States Reports, 478. * White V, Dunbar, 119 United States Reports, 47. ^ Hubbell V. United States, 179 United States Reports, 77. PATENTS 409 And here is applied another principle of the patent law of to-day, that of estoppel, whereby the patentee is bound by any admissions which he may have necessarily made as to the character or scope of his inven- tion in order to obtain his patent. In the same manner he is bound by express disclaimers inserted in the patent. ^ An inventor may lose the right to his invention by aban- donment or prior public use. Public use to invalidate a patent may be a single use, even where the article is veiled from the human eye, as where lie use: .T. , j.ii'j? / •l^ • [• abandonment. the inventor presented his fiancee with a pair oi corsets embodying the patented improvement,^ or by any use for purposes of profit as distinguished from purposes of experiment.^ Where, however, the patentee allows the pub- he to use his invention continually, as in the case of a street pavement, for many years for the sole purpose of experiment- ing as to its practicability or for its improvement, this does not constitute public use or abandonment.* There is no abandonment where the inventor himself is using the invention for the purpose of crucial experiment. An inventor may be held to have abandoned his invention if he fails, without sufficient reason, to prosecute his applica- tion for the patent.^ The following are illustrations of other recent developments of the law of patents. The generic name by which a patented thing is known passes to the public at the date of the expira- „, ^ -^ ^ The name of tion of the patent. Thus when the Singer sew- the thing ing-machine patent expired, any one had a right, not only to make such a machine, but to advertise it as a 1 Jackson v. Birmingham Brass Co., 79 Federal Reporter, 801. ^ Egbert v. Lippmann, 104 United States Reports, 336. ' Consolidated Frait Jar Co. v. Wright, 94 United States Reports, 94. * Elizabeth v. Pavement Co., 97 United States Reports, 126 ; International Tooth Crown Co. v. Gaylord, 140 United States Reports, 63. ^ Smith V. Goodyear, 93 United States Reports, 491. 410 PATENTS Singer machine, so long as he did not deceive the public into the belief that it was made by the owners of the Singer patent ^ The term of a United States patent is limited by the dura- tion of a foreign patent for the same invention. ^ This is roreign Supposed to be one of the reasons why the inven- patents. ^jgn of the original Welsbach patent has been so generally appropriated ; namely, because a foreign patent is supposed to have expired. The doctrine of contributory infringement is comparatively new and interesting. Ordinarily a patent is only infringed Contributory ^7 *^^ employment of the whole combination. infringement, g^^ supposc, as in the Original and leading case on this subject, the patent is for a combination lamp burner and chimney, and a rival in business makes the burners only, and leaves or advises the public to buy their chimneys out- side, without which the burners are useless. There it was held that such manufacture of a single element with the intent that it was to be used in connection with the other element was an infringement to which such maker contrib- uted.^ The Supreme Court, affirming this doctrine, holds that it has no application when the element made by the alleged infringer was not separately patented and was of a perishable nature, to be delivered by the mechanism which was the subject of the patented combination and used peri- odically when put in actual use. This case was one where the plaintiff sold patented fixtures for delivering toilet paper to purchasers of its toilet paper only. Defendant bought the fixtures and fitted them with their own toilet paper and also sold their paper to be used in such fixtures.* The same principle is applied to such elements of the com- 1 Singer Manufacturing Co. o. June Manufacturing Co., 163 United States Reports, 169. 2 Bate Refrigerating Co. f. Sulzberger, l.'i? United States Reports, 1. ' Wallace v. Holmes, 9 Blatchford'a Circuit Court Reports, 65. * Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 United States Reports, 425. PATENTS 411 bination as are necessarily liable to break or wear out long before the rest of the combination, i The distinction between patents for processes which do and which do not involve a chemical or other similar elemental action is exhaustively discussed by Mr. Justice p Brown in two recent cases. ^ Pesign patents were first provided for by the Act of 1842. They protect novel shapes or configurations in carpets, silver- ware, furniture, etc., which produce a pleasing effect upon the eye, and they are infringed by imitations which would deceive the ordinary observer and lead him to believe they were the same designs. The Patent Office at present is not only a self-sustaining branch of the Government, but it annually pays over a sur- plus into the Federal Treasury. An inventor of r^^^ patent to-day pays $35 to the Patent Office for a patent Office, when a hundred years ago he paid less than $4. But the prospective patentee in the year 1901 finds every facility furnished by the Federal Government to put him practically where the patent law puts him theoretically; namely, with the whole prior state of the art before him. If he has not availed himself of this opportunity in advance, he is likely to be confronted by prior patents and other publica- tions after he has filed his application for a patent. If he has not perfected his invention he may file in the secret archives of the Patent Office a statement, called a "caveat," of the character and functions of his immature invention. The effect of this caveat is to secure to him notice of interfering applications and an opportunity to be heard thereon. If at the filing of his application other applications are pending for the same invention, the applicant 1 Thomson-Houston Elec. Co. v. Kelsey Elec. Ky. Spec. Co., 75 Federal Reporter, 1009 ; Heaton-Peninsular Button-Fastener Co. v. Eureka Spec. Co., 77 Federal Reporter, 288. " Risdon Locomotive Works v. Medart, 158 United States Reports, 68; Westinghonse v. Boyden Power Brake Co., 170 United States Reports, 574. 412 PATENTS is advised thereof by the Patent Office, and the question of prioritjr between them is tried and settled, practically finally settled in the Patent Office. ^ Although patent rights are protected by statute, legisla- tion, as we have seen, has had little to do with the growth of American patent law. Its development may be theVrowth of Conveniently divided into three stages, — that prior our patent law. ^^ ^^^ ^^^ ^^ -,^g3g^ ^^^^ between the Act of 1836 and the Act of 1870, and from that to the present time. It has been a development through judicial decisions rather than a creation of statutory enactments. Various minor amend- ments have been passed modifying these statutes, but, as the Supreme Court has recently said : " In the gradual develop- ment of the policy of Congress . . . the recognition of the judicial character of the questions involved became more and more pronounced."^ In the first stage, the States, originally, and afterwards the Federal Government, granted patents practically for the mere asking, or upon the oath of the individual that he had made an invention. During this period the opinions of the courts were indefinite and unsatisfactory, and were confined chiefly to discussions as to the language of the Act, and the classes of subjects which it covered. Very little attention seems to have been paid to mechanical construction or the question of invention, and it seems to have been asserted or assumed that anything which was new was the result of invention. But even this early period was marked by the cotton-gin invented by Eli Whitney in 1794 and the steam- boat of Fulton in 1807. The second period marks the organization of the Patent Office, the beginning of the system of elaborate examination into the merits of each application for a patent, and the ten- dency to presume invention upon proof of novelty and utility. 1 Morgan v. Daniels, 153 United States Reports, 120. 2 United States v. Duell, 1 72 United States Reports, 587. PATENTS 413 During this period, the earlier doctrine as to what constituted invention does not seem to have been definitely repudiated. Coincident with this development, and perhaps as its result, this country was distinguished by unprecedented activity in its inventive industries, of which the sewing-machine, vulca- nized rubber, and the telegraph are illustrations. In 1870 the statute now in force was passed, which was designed to remedy defects in the operation of the Act of 1836. Since the passage of the latter Act, the decisions of the courts have so developed the law that it stands to-day as the Supreme Court has left it, — a harmonious, symmetrical, scientific system of patent law. The old doctrine of mere novelty has been repudiated; the new doctrine of invention has been promulgated, and a series of affirmative and nega- tive decisions have provided rules for the determination of its presence. It may perhaps be safely said that in this third period there has been a greater tendency to discriminate against minor inventions. It is the law as developed during the third period which has been chiefly considered herein. Patent and "anti-patent " counsel are in conflict as to the results of this development of the patent law. The former deplore the delay and expense of the American system of preliminary examination in the Patent Office, the departure from the practice of granting preliminary injunctions against clear infringement upon the patent before adjudication, the restrictions upon the right of reissue, the limitation of the patentee to the character and scope of his claims as insisted on by the Patent Office, and the constant tendency of the courts to discriminate against secondary inventions for mere improvements. The "anti-patent" counsel, and by this term is intended the patent counsel, who insist upon a construction which would limit patents to clearly established substantial inven- tions, commend the preliminary examination as of inesti- mable importance to even the humblest inventors, by placing at their service the experience and training of the best experts and giving to the patent an immediate commercial 414 PATENTS value. They not only condemn even the present practice of granting preliminary injunctions, as affording opportunities to stifle legitimate industries and competition, but having secured the right to declare a patent invalid on demurrer, they seek to extend the existing law so as to destroy it on mere affidavits. They support the doctrine of estoppel as a necessary legal conclusion from the examination procedure. Each of these conflicting contentions is supported by forcible practical considerations. Both are inherent in a system where the fundamental unanswerable question is the pres- ence of invention, — what Mr. Justice Matthews calls "that intuitive faculty of the mind put forth in the search for new results or new methods creating what had not before existed or bringing to light what had lain hidden from vision. " The question naturally arises, however, as to what evils still exist in the present system and how they may be The evils of remedied. Perhaps the greatest practical evil is our system. t]jg delay and expense connected with patent liti- gation, which is so great that no poor inventor can afford alone to protect his rights. It would seem that this diffi- culty might be partially obviated by the reference of tech- nical questions to an expert, to be selected by the Court, who should have considerable latitude in determining the scope and extent of the evidence presented before him. A system of this sort has been most successfully applied in the French courts. Or the questions of fact, such as the state of the art, infringement, etc. , might be referred to some eminent patent lawyer who should report his conclusions thereon to the Court. This practice has been occasionally resorted to in complicated cases. ^ It would do much to relieve those courts which are overburdened with work, and would tend to protect them against the abuse of having causes brought against mere trivial users in their jurisdictions, instead of 1 Parker v. Hatfield, 4 McLean's Circuit Court Reports, 61 ; Webb v. Powers, 2 Woodbury & Minot, Circuit Court Reports, Federal Cases, No. 17,.323 ; Smith v. Johnson, 4 Blatchford's Circuit Court Reports, 242. PA TENTS 415 against manufacturers in the district where the manufac- turers reside. The penalties by way of costs or otherwise for the introduction of irrelevant matter might be materially increased. Another evil results from the practice of granting minor patents for trifling improvements of questionable utility. Such patents, instead of promoting the progress of useful arts, seriously retard their development, and the resulting injury far exceeds the consideration furnished by the paten- tees. They should not be permitted to consume the time of the Court, or to impose on it and defendants the burden and expense of patent litigation. This view finds support in one of the recent decisions of the Supreme Court, where it says : — " Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate inveiition. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country without con- tributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and appre- hensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith. " ^ Perhaps this evil might be remedied by a return to the original statute passed in 1790, so far as to confer on the Patent Office the right there vested in the Secretary of State, or War, and the Attorney- General, to grant the patent if " they shall deem the invention or discovery sufficiently use- ful and important," and not otherwise. The unsatisfactory and constantly changing condition of the law and practice as to temporary injunctions Temporary and appeals therefrom, and the variance in its ap- injunctions, plications in different circuits are some of the worst features of the law of patents. 1 Atlantic Works v. Brady, 107 United States Reports, 200. 416 PA TENTS One defect in the existing patent law deserves special notice. It is illustrated by the recent decision of the Su- The Bell Tele- P^eme Court in the Bell Telephone Cases. The phone Cases, gell Company bought the Berliner invention in 1878. This Berliner invention is necessary in connection with the Bell invention for long-distance purposes. The Bell Company left the Berliner application for a patent pend- ing in the Patent Office till 1891, and having during said period protected its telephone monopoly by the Bell patent, shortly after the expiration thereof took out the Berliner patent, and proposed thereby to prolong its monopoly further during the life of the latter patent. The United States brought suit to set aside the Berliner patent as having been wrongfully issued by reason of the fraud on the public in the delay in its issuance. The Supreme Court held that such a suit was a proper one, but affirmed the decree of the Court below, dismissing the bill on the ground that no fraud or attempted corruption was shown on the part of the Bell Company, and for other reasons. ^ It is evident that such a course of proceeding may unwarrantably prolong the life of a monopoly; that it does practically extend the term of a patent far beyond the statutory period. It is to be hoped that some remedy may be devised for this evil, such as requiring proof of diligent prosecution of applications as a condition to the issuance and validity of patent, instead of requiring proof of fraud in order to invalidate it. The grave nature of this evil is emphasized by the latest decision in this case, which seems to indicate that the Berliner patent is invalid because Berliner was not the first inventor; because he had previously patented the same invention ; because the patent has been so broadened as to cover an invention not described in the application, and for other reasons. It would be interesting, but is beyond the limits allowed to this chapter to consider the recent decisions of the Supreme Court indicating that there should be further legislation in 1 United States v. American Bell Telephone Co., 167 United States Reports, 228. PATENTS 417 regard to the measure of damages at law or in Equity, and as to the right to sue an infringer wherever he might be found, or the rule as to the patented functions of a machine or process consisting solely in its operation, as to which the decisions of the Court seem to be absolutely in conflict; or the doctrine by which the holder of a territorial right or license may violate the rights of the patentee with impunity ; i or the recognition by the Supreme Court of the fact that a patent cause is not strictly a suit between the individuals where the question of invalidity is concerned, but one in which the public is interested and, therefore, must be decided upon the general rules of law.^ Under the operation of the Evarts Act the Supreme Court has ceased to exercise jurisdiction over patents except in special cases. The Circuit Courts of Appeal Kfiectoftiie are now ordinarily the final appellate tribunal. Evarts Act. These courts are liable to entertain divergent views as to the applicability to particular patents of the principles of law hitherto developed and settled by the Supreme Court. Thus it happens that the same patent is sometimes adjudged valid in one circuit and invalid in another ; and manufacturers may be held to be or not to be infringers according to the circuit in which the cause is litigated. The plan recently proposed by the Committee on patent law of the American Bar Asso- ciation for "a single court of last resort in patent causes," which should be in a certain sense permanent in its constitu- tion, but which should consist, with the exception of the Chief Justice, of Judges chosen in turn from the various circuits, while relieving the Supreme Court from the burden of con- sidering technical questions of mechanics, seemed to promise to do more to insure the preservation of the existing system and the unity and continuously harmonious development of the science of patent law than any other plan hitherto pro- posed. It is possible that in connection with such a court an 1 Keeler w. Bed Co., 157 United States Reports, 659. 8 Haughey v. Lee, 151 United States Reports, 282. 27 418 PATENTS expert system such as has already been referred to might be tried. In the latter case the experts might be appointed for long terms, or during good behavior. The advantage of such a tribunal, where the abuses of the present expert sys- tem might be remedied, and the fallacies of partisan expert testimony exposed in the clear light of impartial investiga- tion, will readily suggest themselves to every one who is familiar with the workings of patent litigation. It is un- fortunate that the bill introduced in Congress to authorize the creation of such a court was not more favorably received. But questions of invention, infringement, and equivalents must finally be answered as matters of opinion largely depend- ent upon the diverse mental processes, education, and envi- ronment of the individual. Therefore, however definite may be the rules of law established, the results are liable to vary according to the personnel of the Judge. There must al- ways be cases the outcome of which cannot be predicted with certainty by the most astute and experienced prac- titioner, and so long as patents are granted litigation must continue. The advocates of protection to American industries point to the history of the development of the manufactures of this country in support of their arguments, and further jus- tify the doctrine from the safer and more logical economic standpoint as an eliminator of waste. Thus far the connec- tion between these arguments and those for protection to American genius seem to have been overlooked. Yet they are true yoke-fellows. Whatever stimulates and protects American industry broadens the field for American brains and American genius. The waiting markets of foreign lands invite the invention of devices to reduce the cost of production. The increased value and efficiency of newly invented American improve- ments causes an increase of output against which the anti- quated methods of the old world cannot successfully contend. American grain, rails, engines, and machinery, produced under PA TEXTS 419 conditions otherwise vinfavorable, may, through the benefi- cent influences of our patent law, successfully compete with what were formerly the monopolies, the established industries, of the old world. To-day our export trade is larger than that of any other country. The increasing markets for and proud pre-eminence of our manufactures are due not more to the system of protection to the industry of the American workman, than to the protec- tion to the genius of the American inventor by the patent laws of the United States as developed and administered by its courts. On the whole, it is probable that the inventor secures the reward for his contribution to the public weal more fully, more largely, and more cheaply in the United States than in any other country. Such a condition is adapted to bring out the strongest points in the American character. Much has been said of the inventive genius of the Yankee. He is ingenious, resourceful, and indefatigable. He may not have the imagination of the Latin, or the capacity of the Teuton for analytical and patient investigation, but he is quick to grasp ideas and pre-eminently practical in applying them. And it is the possession of this quality of successful creative instinct which has made the development of our sewing-machines and looms, our trolley systems and air- brakes, the wonder and admiration of the world. In the history of our patent law the claims of American women as inventors must not be overlooked. Voltaire tells us that " Very learned women are to be found in ^^^^n ^s the same manner as female warriors, but they are ""'entors. seldom or never inventors." From his point of view, with the French woman as his object, perhaps he was right. But the history of inventions in this country does not support this statement. From the first patent, to Mary Kies in 1809, for straw-weaving, nearly six thousand patents have been granted to women, covering every department of the arts from baby jumpers to burial apparatus and cigarette- holders. One woman has outshone Desdemona by invent- 420 PA TENTS ing a device for lowering keys from windows; another has patented a I'ake. The historian of the American Patent Law justly extols the creative genius of the great inventors, the marvellous ingenuity of their conceptions, and the incalculable benefits derived from their creations, which have made our nation the peaceful conqueror of the universe. Thus Whitney gave to cotton its imperial position among the staples; thus Morse each day inspires the nations with common knowledge and thought; thus through Bell we live and move and have our being within the sound of distant voices echoed in office and home; and thus Edison says, "Let there be light, and there was light." He may contrast the original thought which flashed upon Howe of a new stitch with the needle's eye near its point; the simplicity of the change from the diamond- shaped prong to the coiled wire of the barbed fence; the reduction in size of carbon filament which distinguishes the Edison lamp; the simple turning of an adjusting screw which differentiated the Bell telephone from Reis, with the un- wearying researches and experiments of Fulton, or Franklin, or Goodyear. But he must not forget George Washington, who, in his first address to Congress, in 1790, recommended the passage of a law for the protection of inventors, nor William Thornton, who, in 1814, threw himself in front of the cannon which the British had trained on the Patent Office, saying: "This is the Patent Office, the depository of the inventive genius of America, in which the whole civil- ized world is concerned. Would you destroy it? If so, fire away, and let the charge pass through my body."^ Let him further record that it was Chief Justice Marshall who thus outlined the broad purpose of the patent law of the United States : "To promote the progress of useful arts is the interest and policy of every enlightened government. It entered into the views of the framers of our Constitution ; and the power ' to 1 Campbell's History of Patent Law, p. 28. PATENTS 421 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,' is among those ex- pressly given to Congress. This subject was among the first which followed the organization of our government. It was taken up by the first Congress at its second session, and an act was passed authorizing a patent to be issued to the inventor of any useful art, etc. It cannot be doubted that the settled pur- pose of the United States has ever been, and continues to be, to confer on the authors of useful inventions an exclusive right in their inventions for the time mentioned in their patent. It is the reward stipulated for the advantages derived by the public from the exertions of the individual, and is intended as a stimulus to those exertions. The laws which are passed to give effect to this purpose ought, we think, to be construed in the spirit in which they have been made; and to execute the contract fairly on the part of the United States, where the full benefit has been actually received, if this can be done without transcending the intention of the statute, or countenancing acts which are fraudulent or may prove mischievous." ^ In this opinion he also urged the legislation -which subse- quently authorized reissues. And the present status of the patent law, its building up by judicial decision rather than by legislation, as already suggested, is the result of the labors of such jurists as Marshall, and Story, and Clifford, and Blatchford, and Brown, who have so developed the law for the mutual protection of patentee and public that leg- islation has not been creative but declaratory of the exist- ing law. To quote the language of the late President Harrison in his address at the Centennial of the Patent System in the United States : " The security of property in inventions has been highly promotive of the advance our country has made in the arts and sciences. Nothing more stimulates effort than security in the results of effort."^ 1 Grant v. Raymond, 6 Peter's Reports (U. S.), 218, 241. 2 Patent Centennial Celebration, p. 23. XV COPYRIGHTS 1701-1901 BY WILLIAM K. TOWNSEND, D.C.L. Okiginally the historian, poet, or dramatist found his pecuniary recompense in the contributions of the audience who listened to the recital or witnessed the per- formance. In Rome an author could sell his work to a bookseller, and custom or a usage of trade protected the transfer. But there was no such thing as literary prop- erty. The first attempt to create a literary property in an author's works was made in Venice. The Senate of that Republic, in 1469, granted to one John of Spira the exclusive privilege for live years of printing the letters of Cicero and Pliny. In England, from the publication of the first privileged book in 1518 down to the Copyright Act of 1710, the decrees and ordinances concerning the printing or pub- lishing of books were in the nature of police regu- lations or arbitrary press censorships. This Act of 1710 formulated our present conception of copyright. It gave a copyright for fourteen years to an author, and, if he were alive at the expiration of this period, for an additional four- teen years. Parliament has since extended the time, and the author's work is now protected for sixty years after his death. Connecticut was the first State in this country to recognize the rights of authors. In January, 1783, she passed " An Act The United ^°^ ^^^ cncouragement of Literature and Genius," States. reciting in its preamble that " it is perfectly agree- able to the Principles of natural Equity and Justice that COPYRIGHTS 423 every Author should be secured in receiving the Profits that may arise from the Sale of his Works, and such Security may encourage JMen of Learning and Genius to publish their Writ- ings; which may do Honor to their Country, and Service to Mankind." By this statute copyrights were to be granted for fourteen years, with the benefit of a second term of the same length, ^ either to the inventor or, in case of his death, to his family. Massachusetts followed in March, and New Jersey in May, of the same year. Virginia in 1785 and New York in 1786 passed copyright laws, and, owing to the vigorous efforts of Noah Webster, other States were seriously considering the advisability of similar enactments. These last three States in taking this step acted on the resolution proposed by Madison and adopted by the Congress in May, 1783, recommending to the States that they secure to authors and publishers the copyright of their works. So, when the people granted to Congress in 1787 the power "to promote the progress of science and the useful arts," this country already appreciated the importance of copyright laws. This provision in our Constitution, on which our Copy- right Acts rest, was proposed by Madison and Pinckney in the Federal Convention of 1787 and adopted without discus- sion. Thus we were the first nation to recognize and provide, in the organic law, for protection to literary property. Our legislation on this subject has proceeded upon a less liberal theory of the rights of authors than that of other countries. In Europe, protection is accorded daring the life of the author and for a period after his death varying in different countries; in France, Russia, and Spain extending to fifty years after the author's death. The first Copyright Act in this country, that of May 31, 1790, was limited to citizens or residents, and was for a term of fourteen years, with a renewal if the author were then liv- ing. The first book entered for copyright under this law was the Philadelphia Spelling Book, in June, 1790. *The Acts of 1831 and 1870 provided for an extension of the original ' Acts and Laws of Conn. Jan. Sess. 1783, 617. 424 COPYRIGHTS term to twenty-eight years, with fourteen years' renewal if the author, his widow or children were living at the expi- The Federal ration of this first term. The Act of 1891 ex- statutes, tended the privilege to non-resident authors. The number of copyrights registered has increased annually. They are issued for newspapers, journals, and magazines, as well as the ordinary published book, and amounted to 94,798, according to the last report of the Librarian of Congress. The original Copyright Law of 1790 protected only books, maps, and charts, and provided for a deposit of title before publication in the office of the Clerk of the United States District Court, where the author or owner resided, and a deposit of a copy with the Secretary of State at Washington after publication; the later enactment of 1802 included de- signs, engravings, and etchings; the Act of 1846 required a delivery of one copy each to the Smithsonian Institute and the Library of Congress; that of 1856 secured stage rights to dramatists; that of 1865 protected photographs and nega- tives. The Act of 1870 transferred the registr}'- from the Clerks of the Courts to the Librarian of Congress, and fur- ther included "paintings, drawings, chromos, statues, statu- ary, and models or designs intended to be perfected as works of the fine arts." The subjects protected by the present Copyright Act in the United States are books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, or a photograph or negative thereof, paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts.^ The common law has always recognized a property in un- published thoughts. But it was not until statutory law lent Common- its aid that a similar right was recognized in law rights. published thoughts. Until 1774 in England, and 1834 in our country, this property right was supposed to be a common-law right. The great case of Donaldson v. Beckett,^ ^ 26 United States Statutes at Large, 1107. 2 Donaldson v. Beckett, 4 Burrow's Reports, 2408. COPYRIGHTS 425 overruling a previous decision in Miller v. Taylor,'^ deiinitely decided for England that the Statute of Anne had taken away the common-law right. Our Statute of 1790 received the same interpretation Ly our Supreme Court in the case of Wheaton v. Peters.^ The nature of this property right is fully discussed by our Supreme Court in Holmes v. Hurst.^ Mr. Justice Brown says : — " The right thus secured by a Copyright Act is not a right to the use of certain words, because they are the common property of the human race, and are as little susceptible of private appro- priation as air or sunlight; nor is it the right to ideas alone, since in the absence of means of communicating them they are of value to no one but the author. But the right is to that arrangement of words which the author has selected to express his ideas." Because this incorporeal right depends for its value upon the very publication which destroys the exclusive right, it has been found necessary to protect it by legislation. But the common-law right of an author to his unpublished book has not been abrogated by the copyright statutes. This is illustrated by the decision in Press Publishing Co. v. Monroe.^ There the plaintiff was the author of the Ode to be delivered at the dedication of the World's Fair at Chicago. Before its publication by the plaintiff or the Exposition Company the Neiv York World obtained a copy without the plaintiff's con- sent, and published it. The author recovered five thousand dollars' damages, and the Court of Appeals affirmed the judg- ment on the ground that she still had a common-law right to her work. Copyright preserves an author's literary property in his work after publication. The first inquiry, then, is what constitutes a publication. An author has not published 1 Miller v. Taylor, 4 Burrow's Reports, 2303. " Wheaton v. Peters, 8 Peters' Uuited States Reports, 591. * Holmes v. Hurst, 174 United States Reports, 8.5. * Press Publishing Co. u. Monroe, 73 Federal Reporter, 196. 426 COPYRIGHTS bis work if he has printed it for private distribution among his friends. Only a complete and unconditional surrender to the whole public constitutes a publication. One Publication. . •: ,....,, may write letters to his friends and yet be entitled to prevent their publication. This is in no sense a public dedication. Nor is there publication where a publisher of photographs sends to dealers a card of miniature copies, representing his work, from which orders are to be made.^ One may deliver lectures to such as pay to hear him, and still retain his literary property in them. Logically connected with this last case, is the question raised by the production of a play. Presented as it is to an in- discriminate audience, and possessing characteris- tics that make it easily reproduced from memory, its presentation comes dangerously near to a public dedication. It was formerly held in this country that such public pro- duction was a dedication, and that, if another reproduced it from memory, the author could not enjoin such reproduc- tion, though he might, if taken from stenographic notes. ^ But the law is to-day established otherwise, and it is now held that there is no distinction between reproducing a play from memory or from stenographic notes taken at' the time. In either case if it is done without the license of the author it is in violation of his rights, and the production may be enjoined.^ This view would seem to be the more reasonable one, and more in line with the fundamental idea of publication. Closely allied to this last subject is that of pictures on pub- lic exhibition. Here we find a similar diversity of opinion Exhibition that has uot as yet been reconciled. The opinion paintings, jj^ Werckmeister v. Springer Lithographing Co. seems directly in line with the decisions in regard to plays.* 1 Falk V. Gast, 54 Federal Reporter, 890. 2 Keene v. Kimball, 16 Gray's Reports (Mass.), 54.'>. 8 Thompson v. Hallock, 133 Massachusetts Reports, 32. * Werckmeister v. Springer Lithographing Co., 63 Federal Reporter, 808. (Circuit Court). COPYRIGHTS 427 In that case the exhibition of painting in a public salon, visitors not being permitted to make copies at pleasure, was held not to be such a publication as to work a forfeiture of the privilege of copyright. There is no free and unrestrained presentation to the public. A different view has, however, been taken by the Circuit Court of Appeals, though not by a unanimous court. ^ The case there before the Court was one where paintings had been exhibited without being marked as copyrighted, and it was held that this amounted to publi- cation. In the present unsettled state of the law it would seem safer to take advantage of the provisions of the copy- right law in such cases. Like controversies have arisen as to a partial publication in the case of books. Where one has allowed portions of an entire work to be published before he has collected partial them into what is to be their final form, such por- P>ibiication. tions are undoubtedly dedicated to the public. As to the remainder, there being no such dedication, he is entitled to the protection of the copyright statutes. In Holmes v. Hm'st this point was decided.^ Serial articles that are to be bound later in book form must be separately copyrighted as they come out, in order to preserve the copyright of the entire book. Any restrictions the producer may see fit to put on his work, whether stated in so many words, as that it is "pri- vately printed " or arising from the circumstances that sur- round the publication, preserve for him the benefit of the statute. The ways in which different productions entitled to copy- right can be presented to the public differ with the subject and have increased in number during the past two hundred years. But the underlying principle in all of them is the same. In order to constitute publication there must be as free and unrestrained a dedication to the public as the nature and circumstances of the subject permit. 1 Pierce & Bnshnell Mfg. Co. u. Werckmeister, 72 Federal Eeporter, 54. 2 Holmes v. Hurst, 174 United States Reports, 82. 428 COPYRIGHTS We have seen how an author may forfeit his statutory- rights. Let us now inquire what subjects are embraced Subjects of within the law of copyright. The recent case of copyright. FutUv V. Bemis is perhaps the most striking illustration of the distinction between what is and what is not the subject of copyright.^ Loie Fuller attempted to get a copyright for her famous skirt dance. We have the distinc- tion immediately drawn between a mere way of doing some- thing, — a matter of graceful mechanical motion, — and the production of an idea that represents some action, speech, emotion, passion, or character. In this case, the Court says, there was conveyed to the spectators "no other idea than that a comely woman is illustrating the poetry of motion in a singularly graceful fashion." The existence of something else is required. Some literary merit must be shown in the conception or plot. For this reason the skirt dance was not a subject for copyright. Take, for instance, the case of stage settings. As long as they present some continuous story, depict a series of incidents, they may be copyrighted as dra- matic compositions. A scene where the villain binds the hero to a railroad track, and where, just before the rapidly approaching train comes upon him, the heroine rushes in and rescues him, can be copyrighted. ^ It tells a story. The rule is that productions for an immoral purpose cannot be copyrighted. But it has been held that charts showing lists of race-horses, and containing compilations of facts con- cerning their performances on the track, will be given the privilege of copyright.^ The necessity of independent literary or mental effort is again well illustrated in the production of photographs. As long as some artistic skill has been expended Artistic , ° ,. i n • pitiii in on the arrangement of the subject, they are capa- .irrangemen . ^^^ ^^ copyright. Thus, in the case of Oscar Wilde, the United States Supreme Court held that as Sarony 1 Fuller V. Bemis, 50 Federal Reporter, 926. 2 Daly V. Webster, 56 Federal Reporter, 983. ^ Egbert v. Greenberg et al., 100 Federal Reporter, 447. COPYRIGHTS 429 had posed Oscar, and arranged accessories, he had supplied tlie element necessary to make his picture worthy of legal protection.^ There must he some peculiar conception or clear characteristic feature ahout the picture to entitle it to protection. An infringement is an illegal appropriation of the results of this original conception of the artist. ^ It is no defence that the copy is incomplete or lacks the artistic excellence of the original, that certain accessories are omitted or additional features introduced. On the other hand, where a picture has become public property, its proprietor cannot obtain a valid copyright by making a merely colorable change. The same is true of the dramatization of a novel and of a translation. The human mind working over them adds something of its own that should be protected. It seems that the use to which the production is put should also be considered. Mere labels, illustrated trade catalogues, show-bills, or circus posters, having no other use than as mere advertisements, are not protected by copyright.^ But a work of the imagination, having obvious artistic qualities, even though used as a glorification of lager beer, as an advertise- ment of a brewer's business, is protected.* The latest and perhaps most striking illustration of this point is shown by a recent decision of the English courts. The London Times had published and copyrighted the speeches of Lord Rosebery, its reporters taking them down in shorthand as they were delivered. Another party at- tempted to publish these same speeches in book form, and the House of Lords held that the protection of copyright could be invoked by the newspaper, the reporter being to all intents and purposes an author. The fact that money was spent by the Times in acquiring these speeches, and that the reporter in arranging them for publication must have exercised some literary judgment, and, consequently, was more than a mere 1 Burrow-Giles Lith. Co. v. Sarony, 111 United States Reports, 53. 2 Falk V. Donaldson, 57 Federal Reporter, 32. 8 Bleistein v. Donaldson Lith. Co., 98 Federal Reporter, 608. * Ynengling v. Schile, 12 Federal Reporter, 97. 430 COPYRIGHTS copying machine, supplied the necessary feature to bring his work under the copyright laws. Such a question as this could only have arisen at this late day, and well illustrates in what ways we may expect the law of copyright to develop. Cases of abridgment have arisen, almost as extreme as this English case. But it has been easier to keep in view the vital point at which a book becomes subject to n gmen . gQpypjgjj^;^ and when it becomes an infringement. The two elements, (1) was there any independent labor in compiling it, and (2) will it supersede the original, are not obscured by the consideration of whether or not it was created by substantially a mechanical process. A copyright secures the proprietor against copying, but not against similarity by independent labor. Mere extracts for the purpose of comment or illustration, or through inde- fair and hona fide abridgments, are not ordinarily pen en a or. y^q\^ to be infringements. The law to-day on this subject is as it was stated by Mr. Justice Story in 1845 on the Circuit, in Emerson v. Davies.^ A case decided by the Supreme Court of the United States, in regard to a book published to explain a system of book- keeping, illustrates the copyright feature in an author's work.^ The system the book describes is not itself subject to copyright. It is in no sense a literary production. But the book, as a book, is. There you express in literary form your thoughts and ideas on the subject. In doing this you intro- duce the very element that brings the work under the protec- tion of the copyright laws. In considering questions like the one last presented, a distinction is to be drawn between what is subject to letters patent and what to copyright. This distinction is illustrated in cases like that of Mark Twain's Scrap Book. Mark Twain brought out a scrap book which consisted of gummed pages, and all that was necessary in order to use it was to wet the pages and stick the clipping in. There was no 1 Emerson v. Davies, 3 Story's Circuit Court Reports, 768. 2 Baker v. Seldeu, 101 United States Eeports, 99. COPYRIGHTS 431 literarj' element in this. It was a simple, practical contriv- ance for accomplishing a useful result, and as such could be patented, but not copyrighted. In producing a new and graceful design that shall be pleas- ing to the eye when used for its intended purpose, you are creating something which may be patented or copyrighted. It is not subject to the same tests as a mechanical patent. Design patents are granted because their utility depends upon the pleasing effect imparted to the eye. They appeal to aesthetic emotions, to the beautiful. In mechanical patents the question is," What will it do?" not, "How will it look?"i The case of a tulip design for car- riage lamps is an illustration of this.^ Here we have a design pleasing to the eye and used for no other purpose. It is new and original, and it can be patented. The same conception might be copyrighted, patented as a design, and protected as a trade-mark. The "Chocolate Girl," now used by Walter Baker on his choco- ^ ^ ' '' Trade-marks. late, might have been copyrighted by Liotard as a picture. The courts have protected it as a trade-mark, and it could be patented in a design for spoons. In this way the same subject may be protected under different laws. The copyrighting of newspapers has become important of late years, and interesting questions have arisen. In the case of Bennett v. Boston Traveler Co.fi the New Newspapers. YorTc Herald had been copyrighted, but not the cuts in it. Consequently the use of its cuts by another paper could not be prevented. The cuts as well as the paper should have been copyrighted. This decision was in line with a similar case decided by Judge Wallace in 1886.* The remedy for an infringement of copyright is provided by statute. Close questions have arisen, however, in Remedies for regard to its application. We find the distinc- infringement. 1 Eowe V. Blodgett & Clapp Co., 103 Federal Reporter, 873. 2 Britton v. White Mannfacturing Co., 61 Federal Reporter, 93. 3 Bennett v. Boston Traveler Co., 101 Federal Reporter, 445. * Harper v. Shoppell, 26 Federal Reporter, 519. 432 COPYRIGHTS tion between the remedy in case of an unauthorized sale where the owner has retained the title, and an authorized conditional sale where the purchaser has violated the condition, admir- ably discussed in Henry Bill Publishing Go. v. Smythe.^ There the plaintiff published Blaine's Twenty Tears of Con- gress, and sold it through book agents, by subscription only, to individual buyers. The defendant, knowing this fact, bought them from a book-dealer, who had bought them from a book-agent. The Court enjoined the sale of these copies, and held that the statute protected the owner of the copyright in the exercise of his exclusive right to make such sales to individual subscribers through agents having no title. But the Court further said that, when the copyright owner actually sold the book to canvassers upon their agreement to sell by sub- scription only, he lost the protection of the Copyright Act. " Whenever he parts with that ownership, the ordinary inci- dent of alienation attaches to the particular copy parted with, in favor of the transferee." In Maynard v. Harrison'^ the owner of the copyright, supposing that a fire had destroyed the commercial value of the sheets of his book stored in a book-binder's cellar, permitted him to sell them, and the vendee resold them under an express agreement that they should be utilized as paper stock only. The Court held that the copyright owner, who had transferred the title, could not by virtue of the copyright statute enjoin the purchaser from binding and selling such sheets in violation of said agreement. But it seems that such a purchaser would not have a right to bind them, if damaged, in such a vf&y as to indicate that they were the books of the plaintiff.^ Where an author's common-law right is infringed, the remedy should be sought in the State courts, except in cases of diverse citizenship. But the remedy for the infringements of statutory copyright is administered only in those courts where such statutes are enforced. In the United States this jurisdiction is exclusively in the Federal courts. 1 Henry Bill Publishing Co. v. Smythe, 27 Federal Ttepofter, 914 2 Maynard v. Harrison, 26 United States Appeals Reports, 99. 3 Doan V. American Book Co., 105 Federal Reporter, 772, COPYRIGHTS 433 One of the latest and most important elements in the devel- opment of copyright has been the attempts to establish an international copyright. The countries of Europe international were the first to accomplish this. The agitation copyight. started in Prussia in 1836, culminating in the Convention at Berne in 1886 ; and a foreign author now has the privilege of copyright in the other States who were parties to that Con- vention in the same manner as though he were a native of each of such States, subject to some restrictions. While this question was first discussed in the United States about the same time that it arose in Europe, the bickerings and delays of American politics prevented the United States from adopt- ing the European view until 1891. By the Act passed on I\larch third of that year, we took the advance step which has placed us in line with the other nations, except under such restrictions as might be expected from the American theory of protection. The Act provides that foreign works copyrighted here must be wholly manufactured in the United States, with the exception of mere musical compositions pub- lished in book form.^ It is restricted to citizens of nations granting reciprocal privileges. It forbids a general importa- tion of works entered for the purpose of being copyrighted here. A curious difference of opinion has arisen between the Connecticut courts and those of the United States in regard to the publishing of Law Reports. It is the gen- eral rule that there is no literary property in judi- *^ ^^""^ ^' cial decisions. They are delivered by the servants of the public and are to be used freely. Connecticut, on the other hand, says that such decisions are the property of the State. ^ The Connecticut Supreme Court seems to have been forced to this conclusion because the State had given to certain publishers the right to publish their decisions, and it would be an exhibition of bad faith to allow others to publish the same reports. This rather unique view holds to-day as the law in Connecticut. 1 Ditson V. Littleton, 67 Federal Reporter, 905. 2 Gould V. Banks, 53 Connecticut Reports, 415. 28 434 COPYRIGHTS While a Judge cannot take out a copyright on his opinion and head notes, prepared by him as part of his oiEcial duty, a reporter of such decisions can copyright the matter pre- pared by him. This was held in West Publishing Co. v. Lawyer's Co} We have thus seen how the law of copyright has developed through two hundred years of our country's history. The main contests in regard to it have shifted from Conclusion. ^^ ^ t i the earlier battle-grounds. We are no longer fighting out the question whether it is a common-law or a statutory right. The important problems to-day are in regard to its application as new subjects appear and new opportuni- ties for infringement are discovered, the measure of damages for infringement, and the question of perpetual copyright. Our recognition of the literary property of foreigners and the adequate protection of our own citizens has been somewhat tardy. But now that we have joined with other nations in efforts to preserve existing rights, let us hope that authors and publishers will unite with the makers of the law in seek- ing to secure due protection to the embodiment of intellec- tual and artistic conceptions. Thus, in stimulating genius by just rewards, we shall illustrate the saying that " The chief glory of every people arises from its authors." 1 West Publishing Co. v. Lawyer's Co., 51 United States Appeal Cases, 216. XVI TRADE-MARKS AND UNFAIR TRADE 1701-1901 BY WILLIAM K. TOWNSEND, D.C.L. At the time when the Constitution of the United States was adopted there was, properly speaking, no law of trade- marks. There had been, in England, a few iso- The begin- lated caseSj bearing upon the subject, and that "aw^of "trade- was all. "'^*^- In 1742 Lord Hardwicke said : — " Every particular trader has some particular mark or stamp, but I do not know of any instance of granting an injunction here to restrain one trader from using the same mark with another, and I think it would be of mischievous consequence to do it." 1 Some forty years later Lord Mansfield,^ and twenty years later still Lord Eldon,^ asserted the right of property in a trade-mark and the right to its protection by injunction. In this country there is no case concerning trade-marks on record prior to 1825, when the general doctrine that a court would protect good-will and a trade-name was recognized, but protection was refused to the National Advocate, pub- lished at New York, against the New York National Advo- cate. Later the Court refused to protect Thomson in the use of the word " Thomsonian " to designate his medicines, ' Blanchard v. Hill, 2 Atkyn's Reports, 484. 2 Singleton v. Bolton, 3 Douglas' Reports, 393. 2 Hogg V. Kirby, 8 Vesey's Reports, 215. 436 TRADE-MARKS AND UNFAIR TRADE because they were not patented, and the term was generic ; and in 1847 it was held that as " Wistar's Balsam of Wild Cherry " was a quack medicine, " the elements of and action of which are not disclosed by the evidence, and in view of the incongruous group of diseases for which the Balsam described itself to public credulity, the trade-mark could not be protected in equity against piracy." The first case in which an injunction was granted in this country was in 1844, when Judge Story enjoined the in- The first fringement of trade-marks and names used by injunction. tj^g manufacturers of "Taylor's Persian Thread." The owners of this trade-mark were Englishmen, and Judge Story is entitled to the credit of having first laid down the rule, afterwards followed in England, and applied in Ger- many to the case of an alien enemy, that alien friends were entitled to claim the same protection of their rights as citizens. It is entirely within the last fifty years that this branch of the law has developed and flourished, until the doctrines connected with it have become manifold and ramified as the twigs and the cases innumerable as the leaves. During this period of growth the courts, at first inclined to develop the law along narrow and technical lines, have come to see more and more clearly the fundamental principles upon which to act in extending this protection of the law to the Tlie preven- ,. , i • i tion of unfair achievements of business. Now, the technical doctrines are less and less employed, and one simple, just rule is invoked. The law of trade-marks is dis- appearing in a broader principle which prohibits unfair trade. This development in the law has run parallel with the growth of the commercial value of trade-marks. Such trade- marks had their origin in the hieroglyphics of commerce, in the seals stamped on pottery, in the emblems on sign-boards, denoting particular trades, which were common in an early civilization. From those days, too, have come the arts of the imitator, — the parasite who would feed upon the repu- tation of another. But in days when most men bought their TRADE-MARKS AND UNFAIR TRADE 437 wares at the maker's door, there was little need for a mark of identification on the goods; little opportunity to palm off one's products as those of another.- Now, when a man may build a reputation to extend throughout the world, when he must deal with his patrons through countless agents and middle men, there is an absolute necessity for some mark of identification which shall stamp his goods as those of his production, and which shaiU not be used by any other producer. Unless both maker and purchaser can count on the inviolability of such insignia, neither can the one win a reputation, nor the other rely on it. The modern colossal growth of advertising is absolutely dependent on the power of the law to protect the sole and exclusive use of the name or mark by which a producer's goods are known and advertised. And, of course, as the trade-mark has become more valuable, the greater have grown the number and skill of the imitators. The courts to-day are often called on to hear trade-mark cases. The earliest seems to have been decided on the ground that the violation was a deception, a fraud on ^, '- I he reasons the purchaser. The cases were developed on the for protecting assumption that in an imitation of a trade-mark there is a violation of the property right of the producer. The courts seized on the theory that a name or device used in an arbitrary or fanciful manner as a mark of identification of his goods can be exclusively appropriated by an individual, and is property which should be protected. From this start- ing point have grown the doctrines of trade-mark law, which have since then been so often invoked to punish and prevent the frauds and artifices of imitators. This right of property in a trade-mark, too, has been given legislative recognition. In England, as early as 1862, it was made a misdemeanor to forge or counter- feit a trade-mark. In 1870 in the United States, and five years later in England, the first trade-mark laws were passed, which provided for the registration of trade- marks. Similar statutes have been enacted in other coun- 438 TRADE-MARKS AND UNFAIR TRADE tries, in many of which adequate protection is now given by statute. In the United States, the statute of 1870 was shortly declared unconstitutional, on the ground that to enact such a law was beyond the scope of the authority granted to Congress. Such authority cannot be derived from the clause in the Constitution which gives Congress power to legislate concerning patents and copyrights. The distin- guishing mark of these latter is that they are new achieve- ments and conquests of mind. A trade-mark, on the other hand, is not necessarily new ; it is usually merely a fanciful application of old and familiar words or devices. It was suggested by the Supreme Court that Congress might have power to pass a trade-mark law under the authority of the commerce clause in the Constitution, provided such law should apply only to goods which are objects of interstate or foreign commerce, or commerce with the Indian tribes. In 1881, an Act providing for the registration and protection of trade-marks for wares used in foreign or Indian commerce was put in force. Its provisions, not even entirely satisfac- tory, so far as they go, are of such limited value that this statutory protection is seldom invoked. The registration provided for is of value chiefly as furnishing prima facie evidence of the state and fact of appropriation of the trade- mark. Trade-mark statutes have been passed by various States ; but there has not been sufBcient uniformity of action to produce wide-spread beneficial results. In this respect our laws are far behind those of many foreign countries, in many of which imitation of a trade-mark is a crime. Inas- much as a trade-mark law, the provisions of which would extend to the protection of marks used in connection with articles of interstate commerce, is generally believed to be within the powers of Congress, and would be of great value, it is to be sincerely hoped that such a law may soon be passed. The theory adopted by the courts and by the legislature of a property in a trade name or mark, when put in applica- tion, at once raises manifold and perplexing questions, and TRADE-MARKS AND UNFAIR TRADE 439 results in many technical distinctions. There are, however, clearly discernible, two or three general limitations to this theory. They spring from the fact that all devices property in and names cannot properly be exclusively appro- fade-marks. priated by any individual. Something entirely new and fanciful, of course, may be so taken. So, too, the arbitrary use of old words, — such, for instance, as Star Shirt, Cough Cherries, Lyon, and the like. But common words used in their ordinary sense are a common heritage, and may not be monopolized by any individual. For this reason, a word or phrase which merely describes an article or its -words in composition, such as Cough Syrup, Liquid Glue, o™™*" "se. Antiquarian Book Store, cannot be adopted as trade-marks. Nor can words which merely show the quality of the goods, such, for example, as Excelsior, Superfine, Best Smoking Tobacco. While this principle is well established Descriptive that words which are merely descriptive, and those words, which imply quality, sometimes called grade marks, can- not be appropriated, its application raises many Grade marks. nice distinctions. On the one hand. Iron Bit- ters,^ Ferro-Phosphated Elixir of Calisaya Bark,^ and Acid Phosphate ^ cannot be appropriated as trade-marks. On the other hand. Fibre Chamois,* Cocaine,^ Bromo-Caffeine,^ and Sliced Animals^ (the latter used to designate pictures of animals on pasteboard cut into pieces to be put to- gether again as a game), have been held valid trade-marks on the ground that they are not sufficiently indicative of the composition or nature of the article, to be classed as descriptive terms, but are used in an entirely arbitrary way. The most interesting problems have arisen in con- nection with the so-called California Syrup of Figs. In- 1 Brown Chemical Co. v. Sterns, 139 United States Eeporta, .540. ^ Caswell V. Davis, 58 New York Eeports, 22.3. ' Enmford Chemical Works v. Muth, 35 Federal Reporter, 527. * American Fibre Chamois Co. v. De Lee, 67 Federal Reporter, 329. 5 Burnett v. Phalon, 5 Abbott's Practice Reports, 212. * Theasbey v. Chemical Works, 142 New York EeportB, 467. ' Selchow w. Baker, 93 New York Eeports, 59, 440 TRADE-MARKS AND UNFAIR TRADE junctions against the use of this word by other makers were refused in many courts ; in general, on the ground that the phrase is merely descriptive of the composition of the article. The plaintiff contended that the name was purely fanciful, there being little or no syrup of figs in the article. The courts answered by holding that, if this was true, the plain- tiff was deceiving the public by using the name, and so was not entitled to the aid of the courts. Since these cases the cartons have clearly stated that syrup of figs is only used for flavoring, and it has been held that the name is purely fanci- ful and will be protected, the element of deception having been removed. 1 Other interesting applications of this prin- ciple have come up in connection with the use of letters or numerals. The Supreme Court held that the letters A. C. A. adopted by the Amoskeag Manufacturing Company had been used as a stamp of quality and were not a trade-mark.^ In another case, the New York Court held that the number 303 used by Joseph Gillott on his steel pens was an arbitrary device not used to denote quality, and was a proper trade- mark.^ The test in all these cases is whether the use of the- words is descriptive, or arbitrary for the sake of denoting the origin of the goods. On similar principles, it is clear that no one may claim an exclusive right to the use of a proper name. Those who share in that right may be few, and any of them Proper names. -, . . . , . Will be protected m its use against one who is using it falsely ; but no one may prevent the use of the name in that business by any one who rightfully bears it. The Supreme Court has held, for instance, that Brown's Iron Tonic is not a trade-mark, and another Brown may make and sell a Brown's Iron Tonic where there was no evidence of intention to palm off his preparation as that of the plaintiff,* and, in other cases, the original makers of 1 Worden v. California Fig Syrup Co., 102 Federal Reporter, 334. 2 Amoskeag Manufacturing Co. v. Tramer, 101 United States Reports, 55. 8 Gillott V. Esterbrook, 48 New York Reports, 374. * Brown Chemical Co. v. Meyer, 139 United States Reports, 540. TRADE-MARKS AND UNFAIR TRADE 441 silverware, stamped "William Rogers," were held to have no property right in the name to the exclusion of another William Rogers. ^ A. W. Faber was unable to prevent another Faber from stamping the name Faber on his lead pencils. 2 It is upon the same principle that the courts have uni- formly held that a geographical name, while subject to a limited ownership, is not properly an object of Geographical exclusive individual ownership. Any one who names. does not live in the district, or derive his goods therefrom, may be cut off from the use of a geographical name by one rightfully entitled to it, but each inhabitant of the locality has an equal right to use it in his business. Lackawanna cannot be used as a trade-mark for coal ; ^ nor can Columbia as a trade-mark for flour.* This principle is simple and clear in effect, but there has been much perplex- ity in its application, and numerous interesting exceptions have been made. For example, American manufacturers of so-called Dublin Soap have been protected in the use of that name,^ and Vienna Bread has been held a valid trade-mark ^ on the ground, apparently, that the use of these words in this Continent was a fanciful, and not a geographical use. So, too, the name Waverley Bicycle was granted registration on the ground that the primary meaning of Waverley is not a geographical designation, but is derived from the title of a famous series of novels.^ It is an equally necessary limitation on the principle of trade-marks which is under discussion, that peculiar forms and shapes and colors cannot be appropriated as technical trade-marks. 1 Rogers Mfg. Co. v. Simpson, .54 Connecticut Reports, 527 ; Rogers v. Rogers Mfg. Co., 70 Federal Reporter, 1019; 84 Federal Reporter, 639. 2 Faber v. Faber, 49 Barbour's (N. Y.) Reports, 357. * Canal Co. u. Clark, 13 Wallace's Reports, 311. * Columbia Mill Co. v. Alcorn, 150 United States Reports, 460. ' 120 Official Gazette, 729. * Fleischman v. Schnockmann, 62 Howard's Practice Reports (N. Y.), 92. ' 72 Official Gazette, 1654. 442 TRADE-MARKS AND UNFAIR TRADE Another interesting class of cases concerns words which originally could have been used as trade-marks, but have Abandonment ^^^^ dedica,ted to the public. This is seen in and dedication, instances where a patented article has become known entirely by a new name, the patent has elapsed, and it has been held that the right to use the new name by which the article is exclusively known, has become public, as well as the right to make the article. The original owner may not obtain a practical monopoly on the article by retaining a monopoly on the name. For example, linoleum, after the patent elapsed, might be made and called by that name by any manufacturer.^ Perhaps the most famous example of the application of this principle is in a case decided by the United States Supreme Court, where it was held that after the lapse of the patent any manufacturer has a right to make a Singer sewing-machine, and call it by that name.^ If, however, this were all that the law could do by way of protecting trade reputations, many a well-won good name would become a public shuttlecock. Many an article be- comes known by the name of its maker, or the place where it is made: Baker's Chocolate, Waltham Watches, are striking examples. Another Baker under the technical doctrine just discussed could make a chocolate, and label it Baker's Choco- late, and claim that he, as well as the original Baker, had a right to the use of his own name in his business. So, too, another resident of Waltham could make and send out Waltham watches, trusting to gain a market for them on the basis of the reputation won by the original maker. In either case, the good- will won by the first man in the field through industry, through merit, and through a vast sum spent in advertising, is stolen by the new-comer. So, too, in many cases popular fancy seizes upon the appearance, shape, form, color, of the dress of an article, and identifies it 1 Linoleum Manafacturing Co. v. Nairn, Law Reports, 7 Chancery Diviaion, 834. 2 Singer v. June Co., 163 United States Reports, 169. TRADE-MARKS AND UNFAIR TRADE 443 by this means. For example, a man adopted the device of bottling the whiskey he produced in bottles with a square neck, and the reputation of this maker's products became inseparably associated in the minds of the public with this particular form of bottle. Another man might use an entirely different name and entirely different marks on his bottle, and at the same time by using a bottle of this same peculiar shape palm off his inferior whiskey on many a purchaser. The original owner can have no trade-mark in this shape of bottle. If the manufacturer or producer of goods could control in all instances the particular mark or sign by which his goods will be recognized by the public, it would not be difficult for any one acquainted with the law to choose a sign which could be protected as a technical trade-mark. The public, however, often recognize wares by marks entirely different from the technical trade-mark stamped upon them, judging much by recollection of the general appearance of the dress, in which the goods are put forth, and many a time, too, a producer introduces his goods under a name which cannot properly be appropriated as a technical trade-mark. In either case he builds a reputation for his goods. Some one imitates the insignia by which his products are recognized. The tech- nical doctrine of trade -marks is of no value to punish or prevent such imitation. In this emergency the courts have quickly recognized that there is another principle of law upon which they may act in enforcing strict justice and protecting the Yra^A and producer in the fruits of his toil. This in its deception. broadest and simplest expression is a principle of common business integrity. No one may represent his goods as those of another. It is upon this proposition, rather than upon the doctrines of trade-marks, that the most enlightened courts are acting to-day in guarding the interests of the modem trader. This principle, however, was not at first clearly enunci- ated, and is at present by no means universally accepted in this simple form. It was developed largely in connection 444 TRADE-MARKS AND UNFAIR TRADE with the so-called doctrine of secondary names. This doc- trine is that, while the primary and common use of a word or phrase may not be exclusively appropriated, there may be a secondary meaning or connotation of a word or Secondary y ° _ _ meaning phrasc which may belong inviolably to the person who has developed it. Where a word of general significance used in connection with a line of goods has be- come associated in the minds of the public with a certain origin, those words may not be used by another person in such a way as to deceive the public into thinking that goods produced by him spring from this origin. It is in this association — this so-called secondary meaning — that there exists a property right. ^ For example, while the United States Supreme Court held that the words Singer Sewing- Machine have become the generic name of a certain article, and were dedicated to the public and could be used by any one making that kind of machine, yet they could not be used unless in some way surrounded by distinguishing marks to show clearly that the machine was not made by the original manufacturer.^ So, too, it was held that the second Baker who made chocolate, while he had an absolute right to use his name in connection with his chocolate, could not use it in such a way as to make people think that his chocolate was the original Baker's Chocolate.^ He could stamp his choco- late "Made by Baker," but not "Baker's Chocolate." The second inhabitant of Waltham who made watches could use the name Waltham in connection with his goods, stamping them as being made in Waltham; but he could not call them Waltham watches, or use the word Waltham in such form as would fail to clearly distinguish between his manufactures and those of the original makers of Waltham watches.* The same principle is applied not only to proper and geo- 1 Hygeia Distilled Water Co. v. Hygeia Ice Co., 70 Connecticut Reports, 576 ; 72 id. 646. 2 Singer v. June Co., supra. ' Walter Baker Co. v. Sanders, 80 Federal Reporter, 889. * American Waltham Watch Co. v. United States Watch Co., 173 Massachu- setts Reports, 85. TRADE-MARKS AND UNFAIR TRADE 445 graphical names, but to words which are merely descriptive of the composition of the articles to which they are attached. In one of the most interesting of the cases, the English courts held that where an article had become widely known under the name of Camel Hair Belting, no one else could stamp his goods with that name, though any one might advertise his belting as made of camel hair.^ In the case last mentioned, the English Court of last resort goes beyond any position as yet taken by our Supreme Court. Here the doctrine is that the secondary meaning of words which, in their primary meaning, cannot be trade- marks, will be protected. In England, the courts have caught this suggestion from us, and gone beyond to the rule that no one may palm off his goods as those of another. Many of our lower Federal courts and of our State courts, however, go as far as the English courts in applying this simple rule of justice, and the latest Supreme Court deci- sions seem to recognize its validity. "Celery Compound," for instance, it has been held, has acquired such a secondary meaning as to entitle the makers to protection. ^ While this principle is simple and within the comprehen- sion of any man, its application is by no means always clear and easy. Many instances, of course, arise where there has been no conscious imitation, and a fraudulent intent is a necessary element of the offence. In many cases it is diffi- cult to determine whether the alleged imitation is such a one as would deceive the public. The test is this: Would an ordinary man using ordinary care be deceived? What a court will determine on such a question depends a good deal on how closely the Judge can estimate the standard of an ordinary man. There are decisions which are hard to recon- cile, and there are cases where equally able Judges will dis- sent on the same case. For example, the French Republic, owner of the springs from whence comes the original Vichy water, has recently brought suit to restrain the use of the 1 Eeddaway v. Benham, 13 R. P. CC 218. 2 Wells & Richardson Co v. Siegel, Cooper & Co., 106 Federal Reporter, 77. 446 TRADE-MARKS AND UNFAIR TRADE word Vichy in connection with Saratoga Vichy Water. The Court held here that, while Vichy as a geographical term is not the proper subject of a technical trade-mark, it could not be used by any one else so as to deceive the public into thinking that the water in connection with which the word Vichy is used is the original Vichy water. The question in one of these cases turns, in the main, on whether the word Saratoga in the phrase Saratoga Vichy Water was sufficiently conspicuous to distinguish the two. Two Judges held that it was not; one Judge held that it was. Again we find a case which holds a maker of Gold Drop Washing Powder is trading unfairly on the name and reputation of Gold Dust Washing Powder,^ in this case there being some similarity in the labels. On the other hand, the makers of Cuticura Soap, a green-colored soap of peculiar shape, could not restrain the action of one who was making a Cuticle Soap made in somewhat similar shape in a different tint of green. ^ Even more difficult problems than these occur in defining and laying down rules as to just how much distinction must be made in such cases as the Waltham watch case; a ques- tion which involves, on the one hand, protecting the reputa- tion of the original makers, and, on the other, granting to other inhabitants of Waltham their unquestionable right to use the name of the place where they live in connection with their business. There are to-day, then, as we have seen, two distinct principles to be invoked in protecting a trade-mark or trade- name. On the one hand, are the doctrines of technical trade-mark, still of considerable importance, because they determine what may and what may not be registered as a trade-mark under State and national laws. On the other hand, the doctrine so-called, of unfair trade, is a broader principle, which requires no technical considerations of whether a trade-name is a geographical, or a proper, or a 1 Fairbank v. Luckel, 102 Federal Reporter, .327. 2 Potter, etc. Co. u. Pasfield Soap Co., 102 Federal Reporter, 790. TRADE-MARKS AND UNFAIR TRADE 447 descriptive name, but simply asks : Is this defendant palming off his goods as those of the plaintiff? Where there is a technical trade-mark, the courts will interfere to prevent the violation of the right of property therein. When unfair trade is claimed, the Court acts to prevent the deception and fraud, and a fraudulent intention must be shown. Even such deception will not be punished, however, if merely the public are deceived. The courts will not interfere unless the complainant has some property right which ... T. , , . i^ ^ J 5 Plaintiff must is injured by the deception. In a case where the show injury J. , J. . , . 1 1 1 to himself. manufacturer ot a genuine aluminum washboard sought to enjoin the sale of a so-called Aluminum Wash- board, which was not made of aluminum, but did not show that the defendant was palming off his wares as those of the plaintiff, the Court refused to act to prevent the deception.* But wherever a well-won reputation of one man is being used fraudulently to aid in selling the goods of another, by what- ever art the deception is accomplished, there the courts will interfere, acting on the principle that such deception is un- fair trade. Not yet fully adopted by all the courts, still to be developed in its application to particular circumstances and conditions, this broad principle of business integrity and common justice is the product and the triumph of the development of the law of trade-marks in the last half -cen- tury, and the bulwark which makes possible and protects the world-wide business reputations common and growing more common in this new century. 1 Ameriean Washboard Co. v. Saginaw Manufacturing Co., 103 Federal Re- porter, 281. XVII ADMIRALTY 1701-1901 BY WILLIAM K. TOWNSEND, D.C.L. " It has been remarked with truth, by very high authority, that no man ever studied the Admiralty jurisdiction without being a lover of it ; and, certainly, no branch of jurisprudence with which I am acquainted possesses, in an equal degree, qualities that may be called fascinating. The antiquity of its origin ; the growth of its doctrines, expanding with the exigencies and growth of commerce and maritime adventure ; the constant aim of its tendencies towards equity and principle, and the very important and interesting objects that fall under its cog- nizance, — render it attractive, when the harsher features and more rigorous rules of other systems have wearied and repelled the student." Geokge Ticknor Curtis. It is only since the birth of the American republic that an independent Admiralty jurisdiction has been in existence upon this continent. For more than a century subsequent the English and American courts have jointly and severally built up the law of Admiralty by their decisions. Owing to these two circumstances, in preparing this chapter a topical rather than an historical treatment of the subject has been adopted. Admiralty is that branch of the law which enforces mari- time rights and redresses maritime wrongs. It is a system sui generis. It differs from the law obtaining on laud as the conditions of the sea differ from the conditions of the land. Its subject-matter is the changeless yet ever-changing sea, owning no sovereign and uncontrolled by physical force of man; its jurisdiction extends over the men and ships that travel the common highway of nations ; its laws are customs of commerce, crystallized under the sanction of the civil law; its practice is free from the artificial technicalities of the com- mon law ; its object is substantial justice. ADMIRALTY 449 Not only does the Admiralty differ from the common law ; it is more liberal, more just, more equitable, as though it had absorbed something of the breadth and freedom ^ , of that sea to which it pertains and from which it derives its life. In its pleadings legal fictions are unknown ; the sole requirement is that the pleader shall speak the whole truth in plain language ; the flexibility of its rules of evidence permit the Court to resort to all available sources of informa- tion and to determine the facts, not on the preponderance of testimony, but of probability, not according to the number, but the character of the witnesses, and so to resolve doubtful questions as to do equity between the parties. It seizes the offending thing, and first metes out redress for maritime wrongs, regardless of ownership or prior claims, and next dis- charges maritime liens in full before recognizing non-maritime liens. "Laches " (that is, unjustifiable delay in seeking its enforce- ment) is the only limitation on a lawful maritime lien ; dam- ages are divided where both parties are in fault ; the innocent part-owner of a vessel in case of loss risks oiily his interest; improvident contracts by seamen are annulled; oppressive salvage charges upon vessels helpless from exposure to mari- time perils are disallowed. Admiralty law originally represented the commands of the Admiral; to-day, while he retains the naval The old power, the Admiralty courts enforce the civil Admiralty maritime law in commerce and navigation. pracUce. Lord Coke thought the Admiralty law of immemorial an- tiquity. There can scarcely be the slightest doubt, says Mr. Justice Story, " that the Admiralty of England and the mari- time courts of all the other powers of Europe were formed upon one and the same common model; and that their juris- diction included the same subjects as the consular courts of the Mediterranean, . . . described in the Oonsolato del mare."' 1 De Lovio V. Boit, 2 Galligon's Circuit Court Reports, 398 ; 7 Federal Cases, 442. 29 450 ADMIRALTY These consular courts proceeded according to tlie forms of the civil law and were regulated by the ancient customs of the sea. Because these customs "breathed the spirit of justice, and humanity," they ripened into a system of positive law. The most venerable monument of the English Admiralty is the Black Book, compiled in the reign of Edward III. Mr. Justice Story concludes that in and before the reign of Edward III., English Admiralty had jurisdiction over matters of prize, torts, and offences on the high seas, on British seas, and in ports within the ebb and flow of the tides ; contracts within the laws of Oleron ; and causes arising on the seashore and in ports. The early history of this jurisdiction in England was a history of encroachments by the common-law courts led by Lord Coke. Either by refusing to parties summoned at common law to answer as to maritime matters the right of withdrawing into Admiralty, or by issuing prohibitions to the Admiralty courts against proceeding with such matters, Lord Coke and his successors so abridged the jurisdiction of Admiralty that it embraced only things wholly and exclu- sively done on the sea. Quibbles were made about contracts made on land to be performed at sea, and contracts made at sea to be performed on land, and matters arising on water within the body of a county; and a statute of Richard II., which excluded Admiralty courts from " all manne-r of con- tracts, pleas, and quereles, and all other things done or aris- ing within the bodies of counties, as well by land as by water," — a statute intended only to protect the common-law courts from the encroachments of the Admiralty, — was mis- used to warrant encroachments of the opposite sort.^ In this country Admiralty jurisdiction was originally ,,. , . exercised by colonial vice-admiralty courts Aamiralty m •' _ _ _ ■' thecoioniai created by virtue of commissions issued from ^"° ' the British High Court of Admiralty to the Gov- ernors of provinces and colonies, as Governors or Vice- admirals, or to Vice-admirals. ^ De Lovio v. Boit, supra. ADMIRALTY 451 The exclusive right thus to establish such courts was reserved b}' the Crown in its charters. "The nature and extent of their jurisdiction depended upon the Commission of the Crown and upon Acts of Parliament conferring addi- tional authorities. The Commissions of the Crown gave the courts which were established a most ample jurisdiction." ^ At the beginning of the Revolution the States in the exer- cise of their powers of sovereignty retained or created Admi- ralty courts under varying provisions. These courts differed widely in their views as to the extent of their jurisdiction. Thereafter, Congress, by common acquiescence, governed the inchoate United States; and to it appeals were made from State Admiralty courts. In January, 1777, under the Congress appointed a standing committee to deal Confederation, with such appeals. After the war, under the Articles of Confederation, ratified in March, 1781, Congress established "the Court of Appeals in cases of capture." But when the country was no longer under the coalescing pressure of ex- ternal war, the present Constitution, in 1789, supplanted the flimsy Articles of Confederation and deprived the States of all Admiralty jurisdiction, both original and appellate, and conferred it upon the Federal Government. All these courts were considered lineally connected, so that in 1795 the Dis- trict Court thus established enforced an appeal from a decree of the State court to the war-time Congressional Commis- sioners of Appeal and to the Court of Appeals under the Articles of Confederation. ^ The chief maritime problem presented to the framers of the Constitution was one of Admiralty jurisdiction. This was made exclusive by the following provision (Art. III., sec. 2): "The judicial power shall extend ... to all under the Cases of admiralty and maritime Jurisdiction." ^'jalt" Cm-'^^ This, however, does not define admiralty and stitution. maritime jurisdiction. 1 De Lovio v. Boit, supra ; Waring v. Clark, 5 Howard's Reports (United States), 441, 455. 2 Penhallow v. Doane, 3 Dallas' Reports (United States), 54. 452 ADMIRALTY At first the view of counsel and court, contracted by the long observation of the circumscribed English practice, failed to comprehend the full, complete system necessary to meet the exigencies of the commerce of the American Republic, connected by great navigable waterways and comprising a body of independent States. But Judge Story early gave legal recognition to the wide range of the American Admiralty jurisdiction under the Constitution. This occurred in a Dis- trict Court of the United States about thirty-five years after Congress, in the exercise of its constitutional power "to con- stitute Tribunals inferior to the Supreme Court," had insti- tuted the District Courts and conferred on them exclusive original Admiralty jurisdiction. He said: "The language of the Constitution will . . . warrant the most liberal interpre- tation ; and it maj- not be unfit to hold that it had reference to that maritime jurisdiction which commercial convenience, public policy, and national rights have contributed to estab- lish, with slight local differences, over all Europe."^ In support of this view he argued against the several theories advanced to limit the Admiralty jurisdiction, showed their inadaptability to American conditions, and that the jurisdic- tion contended for was not really more extensive than that of the colonial vice-admiralty courts. He further pointed out that the framers of the Constitution, by superadding to the word "Admiralty" the broader term "maritime," in view of their knowledge as to the controversies about the extent of the Admiralty, must have intended to remove all doubts. From this foundation — a laconic clause in the Constitution, thus interpreted by Story — the marine commercial law of the United States has been developed. This development has been accomplished by legislation and judicial decision, but more than in any other system of jurisprudence judicial de- cision has preponderated. These decisions have extended its scope, thus reversing the history of its limitations in England. Of the elasticity and adaptability of our Admiralty, admin- istered independently of legislative interference, there can be 1 De Lovio v. Boit, supra. ADMIRALTY 453 no doubt. In this it excels all other systems of law, Taney saying of it that "its boundary is to be ascertained by a reas- onable and just construction of the words used in the Con- stitution, . . . taken in connection with . . . the purposes for which Admiralty and maritime jurisdiction was granted to the Federal Government." ^ The judicial development, then, is fii'st in importance. Let us, therefore, follow the judicial history of its juris- diction. The test of jurisdiction in America as to contracts is subject-matter; as to torts, locality. In Eng- its judicial land, formerly, the test as to contracts also was ii'story. locality, and contracts were not within Admiralty jurisdic- tion unless made on the sea,^ although in some cases this was extended to include contracts pertaining to the sea. The earlier decisions in this country followed the English rule.^ But the courts soon broke away from these restrictions and held that contracts and claims and services purely maritime and pertaining to commerce and navigation, including con- tracts of affreightment, where part of the transportation was by land, and contracts of marine insurance and salvage were the subjects of Admiralty jurisdiction.* One of the principal questions presented was over what waters Admiralty jurisdiction extended. In spite of his liberality even Justice Story, in the Supreme Navigable Court, at first followed the English definition "'»'«''s- which rigidly confined Admiralty jurisdiction to tide-waters.^ But afterwards, in a case ^ which directly involved the ques- tion whether the Court should entertain jurisdiction over a colh'sion occurring on the Great Lakes, the Supreme Court broke away from the English limitation and substituted 1 See the Genesee Chief, 12 Howard's Reports, 443, 460. 2 Insurance Co. u. Dunham, 11 Wallace's Reports (United States), 26. " L'Anima v. Manwaring, Bee's Reports, 200 ; Gardner u. New Jersey, 1 Peters' Admiralty Reports, 223. * The Belfast, 7 Wallace's Reports, 637 ; Insurance Co. v, Dunham, 11 Wal- lace's Reports, 1. 5 The Thos. Jefferson, 10 Wheaton's Reports (United States), 428. 6 The Genesee Chief, 12 Howard's Reports, 443. 454 ADMIRALTY navigability, for tides, as a test of jurisdictional locality. As Chief Justice Taney complained, if the English criterion were adopted in America, thousands of miles of commercial waters must be excluded from Admiralty, and a line could be drawn across the Mississippi River, on one side of which ships would be under Federal courts and on the other under State courts, notwithstanding that the water on both sides was equally navigable, equally public, and equally busy with commerce. Moreover, there would be State inequality before the Federal law, which would be against the spirit of the Constitution. Chief Justice Taney, in 1851, said that if the later decision had disturbed any rights of property, he should have felt that the doctrine of stare decisis should be adhered to, the Court leaving the reform to be effected by the legislature. He also said : — " Now there is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for Admiralty juris- diction, nor anything in the absence of a tide that renders it unfit. ... In England . . . this definition was a sound and reasonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide; nor any place where a port could be established to carry on trade with a foreign nation, and where vessels could enter or depart with cargoes. In England, therefore, tide-water and navigable water are synony- mous terms, . . . and they took the ebb and flow of the tide as the test, because it was a convenient one. ... At the time the Constitution of the United States was adopted and our courts of Admiralty went into operation, the definition which had been adopted in England was equally proper here. In the old thir- teen States the far greater part of the navigable waters are tide- waters. . . . And, indeed, until the discovery of steamboats, there could be nothing like foreign commerce upon waters with an unchanging current." ' In a comparatively recent case Admiralty jurisdiction was declared to extend to interstate canals.^ Nor is it necessary 1 The Genesee Chief, 12 Howard's Reports, 454. i' Ex parte Beyer, 109 United States Reports, 629. ADMIRALTY 455 that the trade in which the vessels are engaged be interstate trade, so the boats be on interstate waters ; — surely not in torts — probably not in contracts. As to waters eutirelj'- within a State, the question was left open in Ex parte Boyer, and is not settled. Another branch of development by judicial decision, less sweeping in its consequences than the definition of " pertain- ing to commerce and navigation " and "navigabil- Dividing ity," but showing no less the spirit of the Admi- damages, ralty to do justice unfettered by precedent, is that concerning divided damages. Equally divided damages in cases of con- tributory negligence is now the general rule, wherein Admi- ralty differs from the common law. This rule applies not only to collisions between boats, but between boat and pier.^ England refused to apply this rule when one vessel was entirely destroyed; not so America. ^ In America, in the earlier District Court cases, some Judges refused to extend the rule to injuries to passengers; others divided damages, not necessarily equally, but according to justice, using their discretion. But in 1890, the Court, commending the justice of the rule of divided damages, and showing that it had been applied by the Supreme Court in cases other than collisions between ships, applied it in a case of injuries to an employee of a stevedore engaged in loading a A'essel. As to whether the damages were to be equally divided, the Court expressly left the question open.^ This principle seems to apply to all persons, for in the cases cited in The Max Morris as involv- ing the same question, some concerned passengers and some seamen. The most unique theory of the Admiralty is that which, regarding the ship itself and not its owner or agent as the offender or actor which incurs liability, makes it „ Suits m rem. the party defendant m a suit. In such cases the reB or thing is the recognized litigant, and these proceed- 1 Atlee V. Packet Co., 21 Wallace's Reports, 389. 2 The North Star, 106 United States Reports, 17. 8 The Max Morris, 137 United States Reports, 12. 456 ADMIRALTY irigs are therefore said to be in rem. This is the basis of the maritime lien; that is, the claim in, or grip upon, the ship itself whereby the charge existing in favor of those to whom the ship is legally obligated is to be enforced. It is the condition precedent to all actions in rem. The maritime lien is the result of maritime conditions. " A ship is, of necessity, a wanderer." If this wanderer itself, which represents both the unknown or absent owners, and the perhaps irresponsible master, could not be intercepted and called to account, the maritime law would, in a great majority of instances, signally fail to do justice. This direct claim upon the ship, which is the foundation of the proceeding in rem, is perhaps the most prominent and beneficent feature of Admiralty. It had its origin in the exigencies of commerce and navigation; its principles are chiefly borrowed from the civil law. It is supposed to be a development of the bottomry lien originally given by the Admiralty law to persons building ships or furnishing them with supplies. It is frequently called a tacit Roman hypoth- ecation or pledge, and it bears a resemblance to another feature of the Roman law besides hypothecation; namely, that which gave priority of satisfaction out of the thing in a concurrence of creditors. This lien finds its analogy in the obsolete rule of deodand of the common law, whereby any chattel which had been the immediate cause of death was forfeited to the King for reli- gious purposes irrespective of the guilt or innocence of its owner. Accordingly, some writers have tried to trace the maritime lien to this as its origin. ^ A suit may be brought in Admiralty by a libel in personam — that is, against the party defendant — for any maritime cause of action whenever proper service can be made.^ But the scope of the lien which gives a right of proceeding in rem, is very wide. Generally speaking, every maritime tort — that 1 Henry's Admiralty Jurisdiction and Procedure, p. 215, citing Waples' Pro- ceedings in rem, sec. 116. 2 In re The Louisville Underwriters, 134 United States Reports, 488. ADMIRALTY 457 is, every actionable wrong inflicted by a vessel, or her master, or crew, whether by force or through negligence or wilfulness, — gives a maritime lien.^ It is only when the thing occasion- ing the tort is not engaged in navigation, as, for example, a bridge, or is either not legally subject to such process or cannot be reached by process, that the injured party is con- fined to his remedy in personam.'^ The nature of this maritime lien is not to be confused with that of the common-law lien. The common-law lien exists only where the lienor holds possession of the ,, . 1 ■ •ij.j.-L ^ ■ • 1 Maritime liens. thing, and is a mere right to have a claim against a person satisfied out of the thing so held. For the mari- time lien, however, no possession is necessary. It is much more than a right to enforce a claim against the owner, since it erects the thing itself into the posture of a defending liti- gant. It is often called a proprietary right in the thing, a jus in re. And here a distinction must be noted between the English and American theories on this subject. The Ameri- can theory is that of the jus in re. The English decisions, on the other hand, do not recognize such a maritime lien, but use the Admiralty process of seizure of the ship only as a means of enforcing a claim against its owner, so that where the owner would not be personally liable to a suit there is no remedy against a ship. Thus, the English courts hold that there is no lien upon a foreign ship for supplies furnished. ^ It has there been held that if the master of one ship, not being the owner, wilfully and maliciously runs down another, there is no redress in the English Admiralty except against the master himself ; * for his act, being wilful and outside the scope of his authority, cannot, upon any principle of mere agency, be laid at the door of his employers. In such a case the injured party is often practically remediless, as the mas- 1 Leathers v. Blessing, 105 United States Reports, 626. " Workman u. Mayor, 63 Federal Reporter, 298; 67 ib. 347; 179 United States Reports, 552. 8 The Heinrich Bjorn, 10 P. D. 44; 11 Appeal Cases, 270. * The Druid, 1 William Robinson's New Admiralty Reports, 392. 458 ADMIRALTY ter is not generally a man of means. Justice, therefore, seems to be better subserved by the American theory. Judge Story declares the American rule to be in accord with the general principles of the maritime law and the law of nations.^ A would-be lienor for repairs or supplies must also show that they were necessary for the ship, and that they were not furnished on the sole credit of the owner or charterer. In the case of The Grrapeshot,^ Chief Justice Chase defined "necessity" to be such an emergency as would drive a pru- dent owner, were he present, to order, or to provide funds for ordering, the supplies or repairs on the credit of the ship; and he declared that, in the case of the ordinary material man or money-lender who acts in good faith, it is sufficient to prove merely that the order had been made by the ship-master on the ship's credit. The inaccessibility of the owner is the chief reason of this lien for supplies and repairs, and therefore, where this reason fails, the lien is likely to fail. Orders made by the master seem to import the presence of this reason. Orders by other agents of the owner may be competent to bind the vessel.^ But the presence of the owner raises a presumption that credit was given to him and not to his ship. " When the owner is present, the reason ceases."* An order by char- terers, or owners pro hac viae, who hire the vessel and who are known by the material man to be charterers, cannot bind the vessel in violation of the provisions of the charter. The final step in this line of reasoning was taken by the Supreme Court in The Valencia,^ where it was insisted that if circum- stances put the party dealing with a charterer upon inquiry as to whether such charterer were owner, and the party failed to 1 United States v. Brig Malek Adliel, 2 Howard's Reports, 234. 2 The Grapeshot, 9 Wallace's Eeports, 141. 5 The Patapsco, 13 Wallace's Reports, 329 ; The Ludgate Hill, 21 Federal Reporter, 431. * The St. Jago de Cuba, 9 Wheaton's Eeports, 417 ; The George Farwell, 103 Federal Eeports, 882. 5 The Valencia, 165 United States Eeports, 272, 273. ADMIRALTY 469 make such inquiry, he could not claim a lien against the ship in violation of the charter party. In this case the contract was not made by the ship-master, but by the charterer. If it had been made by the master. The Grapeshot ruling would seem to warrant the belief that the lien would have been allowed.^ Liens for contract liabilities are usually those for repairs made upon, or supplies furnished to, a vessel in a foreign port in the absence of its owner, liens for seamen's wages, and liens on the cargo for freight. The cases in contract where a maritime action cannot be prosecuted in rem are those where the policy of the Admiralty refuses a lien. The cases of the obvious charterer and of the resident owner are exam- ples of these exceptions, and so is the case of the ship-master. He is so constantly with the ship and so situated with regard to its owner that he suffers none of the disadvantages which "attend the material man or ordinary seaman, and is suffi- ciently secured by the freight and by the personal credit of the owner. In his case the reason of the privilege, therefore, fails, and it is accordingly denied. Also, as he is agent for all parties, it would unreasonably permit him to tie up the vessel. This, however, is a question of policy, and the rule is reversed in England. And our Admiralty courts will recognize and enforce his lien when given by the foreign law.^ An interesting question as to liens is that of their priority of enforcement. Given a ship encumbered with more than one lien ; which, if any, is to be preferred ? Who p^.^^..^.^^ is entitled to have his claim first satisfied? In this the Admiralty and the common law are diametrically opposed. At common law, generally speaking, priority of time is priority of right. In Admiralty the general rule is, that as between successive beneficial liens, that is, liens in- curred for the benefit of the ship or to expedite the voyage, 1 The Iris, 100 Federal Reporter, 104; The Saratoga, 100 Federal Reporter, 180; The Roanoke, 101 Federal Reporter, 298. 2 The Olga, 32 Federal Reporter, 329. 460 ADMIRALTY the later lien is preferred to the earlier, because the later lien is for the benefit of the former lienor and tends to preserve his security, which might otherwise be lost; such liens are, therefore, to be satisfied in the inverse order of their creation. Where all are part of one general service, as for repairs from a single disaster, they are treated as contemporaneous and equal. ^ This order of precedence is liable to be varied by considerations of laches or comparative equities. When the liens are of the same rank the character of the lien or the time when it accrued may determine its priority. ^ The principle is this, — that the service which more recently assists the ship in carrying out its proper purposes as a ship is the service whose lien is to be favored. It is a favorite maxim of Admi- ralty that ships are intended to plough the sea and not to rot by the wharves. And " the whole object of giving . . . pri- ority," says Mr. Justice Johnson, in The St. Jago de Cuba,^ " is to furnish wings and legs to " the vessel, to enable it " to get back for the benefit of all concerned." "The last lien will supersede the preceding," for "the vessel must get on; this is the consideration which controls every other." Usually, it may be said that the last service is the more immediately beneficial to all concerned, since the last lienor has been instrumental in saving to the previous lienors the ship which so directly secures their debts. Of two liens for necessary repairs or necessary supplies the junior lien will, therefore, first be satisfied when the vessel is sold and its proceeds are found insufficient to pay both. But there are other interesting questions of priority less clearly settled. What is the priority of liens which attach to a vessel by reason of its successive torts ? And what is the priority as between a contract lien and a tort lien, when the contract comes last; and what when the tort comes 1 The Olga, 32 Federal Reporter, 329 ; The Gratitude, 42 Federal Reporter, 299; Saylor v. Taylor, 77 Federal Reporter, 476; The Virgo, 46 Federal Reporter, 294. 2 The J. W. Tucker, 20 Federal Reporter, 132 ; The DeSraet, 10 Federal Reporter, 483, note. s The St. Jago de Cuba, 9 Wheaton's Reports, 416. ADMIRALTY 461 last? The last of these three questions is the only one which has been finally definitely answered. In the case of The John G-. Stevens, a tug was proceeded against in rem for a tort by its tow and on a contract by other parties for sup- plies.^ The rule of the inverse order was applied, but on different grounds. Starting with the premise that marine liens are proprietary interests, Mr. Justice Gray continues: "All the interests, existing at the time of the collision, in the offending vessel, whether by way of part ownership . . . or of maritime liens for repairs or supplies, are parts of the vessel herself, and as such are bound by and responsible for her wrongful acts. Any one who had furnished necessary supplies to the vessel before the collision . . . was (as said in The Bold Buccleugh), ' so to speak, a part owner ... at the date of the collision, and the ship was liable to its value at that date for the injury done, without reference to his claim.' "^ Whether this rule would be applied in favor of a later tort lien as against an earlier tort lien, or in favor of a later con- tract lien as against a previous tort lien, are still open ques- tions. But to both of these cases a similar line of reasoning would seem entirely applicable, and such reasoning was in- deed applied long before by a District Court to the case of two successive collisions which gave rise to tort liens. ^ But this case was overruled by Mr. Justice Blatchford, who maintained that as a tort tended not to preserve but to injure the vessel for all concerned, there were no sufficient reasons for postponing a prior tort lienor to a later one.* The law on this question, therefore, cannot be considered as settled in this country. As to the case of a subsequent contract lien and a previous tort lien, it remains to be seen whether the Supreme Court will apply its reasoning used above, or will adopt the reasoning used in a different connection in the old 1 The John G. Stevens, 170 United States Reports, 113. 2 The Bold Buccleugh, 7 Moore, Privy Council Cases, 285. ' The Frank G. Fowler, 8 Federal Reporter, 331. * The Frank G. Fowler, 17 Federal Reporter, 653. 462 ADMIRALTY English case of The Aline, and favor the previous tort lien instead of the subsequent contract lien. For, in the case of The Aline, Dr. Lushington said: "The suitor in damage," that is, the tort suitor, "has no option, no caution to exer- cise; the creditor . . . has. . . . He has an alternative; the suitor in a cause of damage has none."^ The Admiralty courts have adopted the very sensible rule that when money borrowed has been actually used for the purpose of relieving a vessel from a maritime lien, the lender is substituted to all rights of priority of the lienor whom he has satisfied.^ There is one very important basis of priority of liens which is entirely irrespective of time. When an Admiralty court is called upon to settle a maritime as against a non-maritime lien, the maritime lien is invariably preferred.^ For instance, a lien for services to the ship is preferred to a mortgage on the ship. The reason here is that for the maritime lien the ship is primarily liable, and, for the non-maritime, its owner ; and it is but logical to compel the ship to pay its own debt before it is allowed to pay its owner's, — to pay the debt it owes, before satisfying the claim for which it is mere security. The fundamental prin- ciple is that a debt contracted for the purpose of preserving the ship for the benefit of all concerned shall be first paid, except, in England and the United States, as to collisions. It was for some time a question, decided difPerently in dif-- ferent circuits, whether a maritime lien conferred by State statute was to be thus preferred to a non-maritime lien. It would seem that if a lien thus created is maritime, it should enjoy all the privileges incidental to the maritime status, one of which is priority over non-maritime liens. The doubts upon this subject were resolved by the Supreme Court in the J. E. Rumbell, followed by The Glide.^ The 1 The Bold Buccleugh, 7 Moore, Privy Council Cases, 267; The Aline, 1 William Robinson's New Admiralty Reports, 111. 2 The Guiding Star, 18 Federal Reporter, 265. 3 The J. E. Rumbell, 148 United States Reports, 19 ; The Glide, 167 United States Reports, 621-624. ADMIRALTY 463 Court, in The Rumhell, not only denied that the Federal recording statute confers a lien, but expressly declared that a State lien for necessary supplies, once conferred, ranks as a full-fledged maritime lien, to be "enforced in Admiralty by reason of its maritime nature only," and to be enforced according to Admiralty procedure, in violation, if need be, of the rule of priority laid down by the very statute creating it ; and to this effect the Court quoted wi th approval Mr. Justice Matthews in The Guiding Star. This brings us to the friction which long existed between State and Federal courts on the question of liens conferred by State statute. Under our Constitution it has been held that Admiralty jurisdiction is to be defined by the Admiralty law of this country as it existed when the framers of the Constitution used the term. But this Admiralty law was deficient in one respect. It gave a lien to material men against a foreign ship only. For this purpose the States are regarded as foreign to each other. This doctrine probably originated in a dictum of Mr. Justice Story in The General Smiths It may have arisen from the practice in the colonial Admiralty courts, or may have been based on the theory that the credit of an owner could not be pledged outside of his own State, and that liens for neces- saries furnished in the State where the ship belongs are governed by the local law. And since no liens were given as against a domestic ship, — a ship, that is, from the mate- rial man's own State, — it followed that a material man furnishing supplies in Jersey City could have a lien against a New York ship from just across the river, but none against a ship belonging in Atlantic City, a hundred miles distant. Congress could not, or, at least, did not, under the com- merce clause, create domestic liens. This injustice the State legislatures attempted to correct. After they had created domestic liens by statute, the ques- tion arose whether these liens were constitutional, and if so, 1 The General Smith, 4 Wheaton's Reports, 458 ; Pratt v. Reed, 19 Howard's Reports, 359. 464 ADMIRALTY whether a State court could enforce them without infringing the exclusive jurisdiction conferred by the Constitution on the Federal courts. It was early held by the Supreme Court of the United States that such State statutes were unconstitutional.^ It was argued that the maritime jurisdiction conferred pursuant to the Constitution upon the District Courts by the Judi- ciary Act of 1789, was exclusive; that the saving clause of that Act, saving to suitors their common-law remedies, saved none but existing common-law remedies; that if the States could create new remedies of a maritime nature, they could give their courts concurrent jurisdiction with the District Courts, and thus defeat the exclusive jurisdiction prescribed by the Constitution. It did not, apparently, at first occur to the Court that the State might create the right and leave its enforcement to the Federal courts, and this seems to have been first authoritatively suggested in the famous case of The Lottawana."^ Since then a long line of decisions, culminating in The Grlide, have upheld the constitutionality of these statutes. But many of the State courts not only held such laws constitutional, but further held that the liens thereby created could be enforced by the State courts ; and it was not until the decision in The Crlide that this holding was finally denied. This case first arose in the courts of Massachusetts, and, in spite of the Rumhell and Lottawana opinions, where the views of the Court on this point were not essential to the question immediately involved, the Massa- chusetts Court claimed concurrent jurisdiction. The case was finally carried up to the Supreme Court of the United States, and there the dicta of The LottawmM and The Rum- hell were crystallized into law.^ The Court said: — " A lien ... for repairs or supplies, whether created by the general maritime law of the United States, or by a local statute, 1 The Moses Taylor, 4 Wallace's Reports, 411 ; The Hine w. Trevor, 4 Wal- lace's Reports, 555. 2 The Lottawana, 21 Wallace's Reports, 558. » The Glide, 167 United States Reports, 606. ADMIRALTY 465 is a jus in re, a right of property in the vessel, and a maritime lien, to secure the performance of a maritime contract, and therefore may be enforced by Admiralty process in rem in the District Courts of the United States. When the lien is created by the general maritime law ... no one doubts at the present day that . . . the Admiralty jurisdiction in rem of the courts of the United States is exclusive. . . . The contract and the lien . . . under a local statute are equally maritime . . . equally within the Admiralty jurisdiction, and that jurisdiction is equally exclusive." Of the efficacy of this conclusion in promoting justice none can doubt. The Supreme Court has repeatedly questioned whether it could be sustained upon a strict construction of the Constitution. Thus, in The Lottawana, Mr. Justice Bradley says : — "The practice may be somewhat anomalous, but it has existed from the origin of the government, and, perhaps, was originally superinduced by the fact that prior to the adoption of the Con- stitution liens of this sort created by State laws had been enforced by the State courts of Admiralty, and as those courts were immediately succeeded by the District Courts of the United States, and in several instances the judge of the State Court was transferred to the District Court, it was natural, in the infancy of Federal legislation on commercial subjects for the latter courts to entertain jurisdiction over the same classes of cases in every respect as the State courts had done, without due regard to the new relations which the States had assumed towards the maritime law and Admiralty jurisdiction." He concludes by saying that, whether or not the practice is based on the soundest principles, it has become too firmly settled to allow its validity to be questioned. And in a later case, referring to this decision, Mr. Justice Bradley says : — "It is true, we have held that the boundaries and limits of the Admiralty and maritime jurisdiction are matters of judicial cognizance, and cannot be affected or controlled by legislation, 30 466 ADMIRALTY whether State or national. But within these boundaries and limits the law itself is that which has always been received as maritime law in this country, with such amendments and modi- fications as Congress may from time to time have adopted." And he adds : — " It might be a much more serious question, whether a State law can have force to create a liability in a maritime case at all, within the dominion of the Admiralty and maritime jurisdiction, where neither the general maritime law nor an Act of Congress has created such liability. On this subject we prefer not to express an opinion." ^ In nearly all the maritime codes of modern times, the more important liens have ranked in the following order: Order of (1) Salvage, (2) seamen's wages, (3) liens for preference. necessary materials or supplies, including bot- tomry bonds, liens for moneys raised by hypothecation of the ship for those purposes, (4) liens for damages to cargo, (5) liens for negligent damages to other vessels by collision, whenever the latter is recognized at all, although in most countries this lien has not been recognized at all, except in a few recent codes. In England, however, liens for damage to other vessels by collision are ranked above all other liens on the same voyage, except for salvage or seamen's wages ; and our Supreme Court, in 1898, as already stated, adopted the same rule.^ This exceptional rule ignores the historical foundation of liens in the general maritime law, which rests upon the benefit to the ship or voyage and the credit given the ship in obtaining them. There are two principal ways in which a lien may be post- poned or lost: (1) By the laches or fault of the lienor; (2) by sale under the decree of an Admiralty court. (1) The lienor is at fault by such a delay in enforcing his lien as operates to the disadvantage of others. Admiralty 1 Butler V. Boston Steamship Co., 130 United States Reports, 557, 558. * The John G. Stevens, 170 United States Reports, 113. ADMIRALTY 467 has nothing like the common-law statute of limitations, where- by a claim is said to outlaw after a prescribed and arbitrary number of years. In Admiralty, as in Equity, a claim becomes stale, not by the lapse of time, but by neglect during a reasonable opportunity to enforce the claim. What is such neglect of opportunity ? On the salt waters, generally, a claim should be pressed when the vessel next touches at the port where the lien arose. Unless a lien against an ocean vessel is enforced before liens accrue on a subsequent voyage, the later liens will generally have priority.^ On the canals and on the Great Lakes, where voyages are frequent and short, the claim should be pressed before the next season.^ In the harbor of New York a mate- rial man's lien on a tug ordinarily loses its priority if not enforced within forty days.^ This is a striking illustration of the adaptation of American Admiralty to American con- ditions. Stale claims are never enforced — when a ship has meanwhile changed ownership — against the innocent owner. But if there has been no change of ownership, the lien may generally be enforced subject to the foregoing rules, unless the laches of the lienor are such as to make the enforcement of his claim inequitable. (2) All liens are enforced and divested through sale under decree of a competent Admiralty court. The proceeds of such sale are applied to satisfy and discharge the liens in their ranking order. A purchase under these conditions is the safest in the world; for not only is the lien enforced on which the sale is ordered, but all other existing liens are at the same time divested. And so strong is every presumption in favor of the validity of such sale, that only collusion or fraud, and cognizance thereof by the 1 The Paragon, 1 Wallace's Eeports, 326; The Rapid Transit, 11 Federal Reporter, 322. 2 The Atheuian, 3 Federal Reporter, 248 ; The J. W. Tucker, 20 Federal Reporter, 129. 3 The Proceeds of The Gratitude, 42 Federal Reporter, 299 ; The Samuel Morris, 63 Federal Reporter, 736. 468 ADMIRALTY purchaser, can impeach it.^ In no other way can a purchaser be sure of a clear title : in this way his title is good against all the world. Salvage is a reward for meritorious services in saving prop- erty in peril on navigable waters, which might otherwise be destroyed. It is allowed as an encouragement to Salvage. j x i j • -, , endeavor to save vessels and cargoes m peril. ^ In order to obtain it the salvors must generally prove that their services were voluntary, necessary, and successful. Where there is no agreement for compensation, as where the vessel is derelict, the risk enhances the merit of the ser- vices and the remuneration awarded. In any case, the re- ward may be forfeited by misconduct, as by embezzlement of property saved. ^ Exorbitant contracts for compensation will not be enforced where advantage has been taken of the apparent helplessness of the vessel and her master, nor where he acts corruptly or recklessly. In the subordinate Federal courts it has fre- quently been held that salvage contracts were so far within the discretion of the Court that they would be set aside where the compensation appeared to be unreasonable. In the latest decision of the Supreme Court, however, Mr. Justice Brown, reviewing the authorities, says: "We do not say that to impugn a salvage contract such duress must be shown as would require a court of law to set aside an ordinary con- tract ; but where no such circumstances exist as amount to a moral compulsion, the contract should not be held bad simply because the price agreed to be paid turned out to be much greater than the services were actually worth. The presumptions are in favor of the validity of the contract . . . although in passing upon the question of compulsion the fact that the contract was made at sea, or under circumstances demanding immediate action, is an important consideration. 1 The Garland, 16 Federal Reporter, 283. 2 Sonderberg v. The Tow Boat Co., 3 Wood's Circuit Court Reports, 143. ' The Island City, 1 Blatchford's Circuit Court Reports, 121. ADMIRALTY 469 . . . While in England there has been some slight fluctua- tion of opinion, by the great weight of authority, and partic- ularly of the more recent cases, it is held that if the contract has been fairly eiitered into, with eyes open to all the facts, and no fraud or compulsion exists, the mere fact that it is a hard bargain, or that the service was attended with greater or less difficulty than was anticipated, will not justify setting it aside." ^ It may be suggested, however, that very rarely do the cases that arise come within these qualifying words : there is, generally, moral compulsion. The landlord and tenant of the Admiralty are the owner and charterer, — his lease a charter-party, — its duration Umited either by time or number of voyages ; its terms the payment of a gross sum, or so much per ton, or a share of the profits. The tenant or charterer may hire the vessel equipped and manned as one might rent a suite of rooms in a boarding-house, or he may himself man and equip the vessel as one occupies an apartment. In any case he may so far obtain control and possession of the vessel as to become its owner pro hac vice, and subject it to liens for a tort, such as a collision, or for repairs and supplies furnished by contract. But there is no lien under maritime law or under a State statute for materials furnished on the order of the charterer, where the charterer agrees to provide them, if the material man knows of the charter, or is put on inquiry as to such agreement.^ Under what circumstances such a charterer may pledge the credit of a vessel the Supreme Court has not decided.^ It would seem from some expressions of opinion in the Federal District and Circuit Courts, that in the absence of 1 The EKrida, 172 United States Reports, 186. 2 The Kate, 164 United States Reports, 458 ; The Valencia, 165 United States Reports, 264. ^ The Valencia, supra. 470 ADMIRALTY a contract not to pledge the credit of a vessel a maritime lien may arise where a State statute is complied with, irre- spective of anv agreement therefor, and under the State statuteSi •/ o general maritime law, upon proof that it was the common understanding of both parties that such lien should attach.^ The master is the " Pooh Bah " of the maritime venture. He may sell, pledge, or bond by bottomry ^ or respondentia,^ or otherwise encumber ship, freight, or cargo. The master. ^- i ^ u V J It IS only essential to show necessity, and commu- nication with the owner, where that is practicable, and his assent, and that nothing better could be done for those con- cerned.* A different hindsight will not defeat a foresight based on due diligence and good faith. On the other hand, no form of words will create a maritime lien against a vessel unless the debt to which they had respect was itself a subject of lien, i. e., maritime in its nature.® The pilot is the autocrat of the seas. As soon as he sights a vessel on the ocean and sets his signal, he has a right, under our pilotage laws, to demand acceptance of his services under penalty of payment of one half his fees. From the moment he steps on deck till the vessel is anchored or docked, his authority over the navigation of the ship is supreme. Except in cases of grave danger or necessity the master may not interfere except at the risk of losing his insurance.^ In case of collision, the pilot, although thus compulsorily employed, is treated by American law as agent for the parties in interest so as to bind them for what- 1 The Iris, 100 Federal Reporter, 104; The Saratoga, 100 Federal Reporter, 480; The Roanoke, 101 Federal Reporter, 298 ; The Dredge Newport, 107 Fed- eral Reporter, 744. 2 An hypothecation of the ship. " An hypothecation of the cargo. * The Amelie, 6 Wallace's Reports, 18. 6 The Emily Souder, 17 Wallace's Reports, 666; The Woodland, 104 United States Reports, 180. ^ The China, 7 Wallace's Reports, 53, 67. ADMIRALTY 471 ever loss occurs through his negligence. ^ Our theory is that the safety of vessels is best promoted by providing for the licensing of pilots after examination, and by then treating them as the agents of all concerned. ^ The theory and prac- tice in England are different. There the ovraers are not liable for the faults of the vessel while in charge of a pilot taken thus in invitum.^ The following are other interesting points concerning lia- bility which cannot be discussed at length. It is held that pilotage laws and usages are local port regulations which may be controlled by State statutes and which govern vessels entering or departing from the port.* This principle has been applied to foreign vessels.^ By statute a master may employ a pilot, licensed by the law of either State, on waters bounding the two States, to any port situate on said waters.^ By sailing through waters within the jurisdiction of a State a vessel does not submit itself to local jurisdiction, but its rights and liabilities are governed by the laws of its country or by the general Admiralty law. In suits in this country maritime torts committed on the high seas are generally adjudicated according to our Admiralty law as the law of the forum.' The carrier by land is protected against liability for dam- age resulting from the act of God and the public enemy ; to the mariner is added protection against liability (.„„„ for perils of the sea. They " include only such losses as are of an extraordinary nature, or arise from some 1 Sherlock v. Ailing, 93 United States Reports, 99 ; The China, supra. 2 The China, supra. 8 This is hy an Act of Parliament, the policy of which is questioned in The Halley, Law Eeports, 2 Admiralty and Ecclesiastical, 15. * The Eagle, 8 Wallace's Reports, 15, 22 ; The Abercorn, 26 Federal Re- porter, 877. s Wilson V. McNamee, 102 United States Eeports, 572. 6 United States Revised Statutes, 4236; Reardon v. Arkell, 59 Federal Reporter, 625. ' The Scotia, 14 Wallace's Eeports, 170; The Scotland, 105 United States Keports, 24. nmon carriers. 472 ADMIRALTY irresistible force, or some overwhelming power which cannot be guarded against by the ordinary exertions of human skill and prudence."^ In the absence of statutory provisions the vessel owner is liable for damages resulting from such perils provided his vessel is not seaworthy; that is, not fit to encounter the ordinary perils of the projected undertaking. After many years of litigation in this country and in Eng- land, it has been decided in England that where a cargo was injured by sea water which entered through a lead pipe in which a hole had been gnawed by rats, the damage was caused by a peril of the sea, and in this country that such cause was not a peril of the sea ; because in the former case the owners were not at fault, while in the latter case they were.2 In cases of damage by rats evidence that the ship- owner had provided an adequate number of active and vigi- lant cats may be sufficient to relieve him from liability for damage from vermin. ^ In case of accident it is a common practice for the master to file a "marine protest" at the first opportunity, stating under oath the facts as claimed by him. This Marine protest. _ - .. ■ , i ■ -i , , • may be used as evidence against him, but not m his favor. Whenever a question arises as to the propriety of repairs, in case of collision, or of such extraordinary repairs as would justify a sale by the master, it is his duty to " obtain the advice of that body of men, who by the usage of trade have been immemorially resorted to on such occasions." The proceeding by which this is accomplished is called a "marine survey." The law is not entirely settled as to the rights of foreigners in our Admiralty courts. Except in some cases of dispute as to possession between foreign owners, our courts Foreigners. • ■,• <. 7 . , . ,. incline, as a matter ot comity m their discretion, to enforce the general maritime law in the case of foreign 1 Mr. Justice Story in The Reeside, 2 Sumner's Circuit Court Reports, 567. * Pandorf v. Hamilton, 12 Appeal Cases, 518 ; The Italia, 59 Federal Reporter, 619; The Euripides, 71 Federal Reporter, 728. 8 The Timor, 67 Federal Reporter, 356. ADMIRALTY 473 vessels.^ This may be applied even where it is contrary to the law of the vessel's flag in cases of contract,^ or tort.^ Out courts always take jurisdiction of collision cases, which are communis juris, and enforce the general maritime law, the law of the forum, or of nationality, according to circumstances.* We come now to the part which Federal and State legis- lation has had in the development of American Admiralty law. Originally it was doubted whether leeisla- . Legislation, tion could assist at all; because while the Con- stitution conferred this jurisdiction on the Federal courts, it conferred no exactly corresponding power on any legisla- ture. Chief Justice Taney emphatically denied that Con- gress had any such power, under the commerce clause, which seems to come the nearest to covej'ing the same ground with maritime jurisdiction. The Constitution, he said, de- fined the Admiralty jurisdiction in one clause and dealt with interstate commerce in another. The two subjects were generically different; and if the commerce clause enabled Congress to extend the jurisdiction of Admiralty on the sea, it equally enabled it to do so on land, which would be an absurdity.^ But, while expressly endorsing this assertion so far as it denies to Congress the power to alter the boundaries of Admiralty jurisdiction, it is intimated in the masterly opinion of the Supreme Court in a later case,^ that Congress could make laws for the regulation of maritime commerce. "It cannot be supposed," said Mr. Justice Bradley, speaking for the Court, " that the framers of the Constitution contem- plated that the law should remain forever unalterable. . . . Congress has undoubtedly authority under the commercial 1 The Maggie Hammond, 9 Wallace's Reports, 435. 2 The Scotia, 35 Federal Eeporter, 907. 5 Rundell v. La Compagnie Gene'rale Transatlantique, 100 Federal Reporter, 655. * The China, 7 Wallace's Reports, 53. 6 The Genesee Chief, 12 Howard's Reports, 452, 4.53. ' The Lottawana, 21 Wallace's Reports, 558. 474 ADMIRALTY power, if no other, to introduce such changes as are likely to be needed." And, as instances, the Court mentions registry of vessels, rights, and duties of seamen, and limitations of responsibilities of shipowners for the negligence and miscon- duct of their captains and crews. Wherever Congress can make laws, the Federal courts can entertain jurisdiction; if, therefore, Congress can make laws in the regulation of marine commerce, the Federal courts will thus be called to pass upon marine rights and remedies not originally con- sidered within the Admiralty jurisdiction. In this sense, therefore, legislation may be said to have extended the Admiralty jurisdiction. The Constitution is not without other clauses conferring jurisdiction in maritime matters, such, for example, as that which authorizes Congress to define and punish felonies at sea and offences against the law of nations. 1 Two Acts of Congress, called the Limited Liability Act and the Rarter Act, have materially modified maritime lia- Limited bilitics. The rule of the common law, of the liabiiit.v. c\v\\ law, and of the general law maritime, meas- ured the liability of owners by the full extent of the injury sustained through negligence.^ The maritime law of modern Europe, however, has provided for the limitation of the responsibility of the owners to the value of the vessel and freight. Grotius observes that the reason for this rule was that men would be deterred from investing in ships if they were subject to the fears of an indefinite liability for the acts of the master.^ In 1851 Congress passed an Act thus limiting the liability of shipowners. It was designed to promote the building of ships and to encourage navigation,* and was inerely declara- tory of the old maritime rule as above stated, which had 1 Article 1, sec. 8, cl. 10. " The Main v. Williams, 152 United States Reports, 122. 8 Norwich Co. v. Wright, 13 Wallace's Reports, 116; The Rebecca, 1 Ware's District Court Reports, 187 ; 20 Federal Cases, No, 11619. ' Moore v. Transportation Co., 24 Howard's Reports, 1. ADBIIRALTY 475 been administered in all courts of Admiralty except those of England, from time immemorial. ^ The first action by the Supreme Court under this Act was in 1871,2 when the Court interpreted the Act and promul- gated rules to regulate its operation. While these proceed- ings are equitable in character, they are solely within the jurisdiction of the Admiralty. Under their provisions, any shipowner not personally in fault may, after a disaster, obtain a limitation to the value of his interest in the vessel and the freight then pending by making a transfer of his interest therein for the benefit of claimants, to a trustee to be appointed by a District Court, or by having his interest appraised and giving a stipulation for the appraised value, and by taking further proceedings under the orders of said court. ^ The interest required to be transferred does not include the owner's insurance upon the vessel.* In cases where both parties are in fault and each is decreed to pay one half the difference between their respective losses, either party, provided he is entitled to the limitation of liability, may have the benefit thereof as to the amount decreed against him.^ In such a case the Admiralty Court having jurisdiction of the proceedings to limit liability may issue an injunction against proceedings in any other court, ^ and will determine all the questions presented by claims for damages, and dis- pose of the proceeds of the sale after final judgment. This Act extends to foreigners and foreign ships, although the foreign law may differ from ours on this subject.^ This principle of limited liability has not merely stimulated the maritime industries of this country; it is at the foundation 1 Oregon Ry. Co. o. Balfour, 176 United States Reports, 685. 2 Norwich Co. v. Wright, supra, 104. » The Benefactor, 103 United States Reports, 245. * The City of Norwich, 118 United States Reports, 468. s The North Star, 106 United States Reports, 17. ' Providence & New York Steamship Go. v. Hill Manufacturing Co., 109 United States Reports, 578. ' The Scotland, 105 United States Reports, 24. 476 ADMIRALTY of American maritime commerce. The intention of Congress was to relieve shipowners from the consequences of the acts of their agents or servants or of third persons beyond the value of ship and freight money, but not to curtail their responsibility for their own wilful or negligent acts. The limitation in the statute upon this right to limit liability is that the loss or damage shall have occurred without the "privity or knowledge " of the owner. This has been inter- preted to mean that while an owner cannot obtain a limitation of liability for loss caused by a defect in the original construc- tion of the ship which rendered her unsea worthy, ^ if he knew of the defect, or if such knowledge could reasonably be im- puted to him, yet the word "privity " being at least as broad as the word "knowledge," if an owner makes reasonable pro- vision for the proper fitting of the vessel by a suitable agent, he may have the benefit of the statute even though the agent may have been negligent in some particular which caused the loss. 2 Thus the shipowner is protected where he has employed a competent expert to make the necessary examination of a vessel just prior to a voyage, and such expert has failed to exercise sufficient care to discover defects which should have been found. ^ The Act also applies to cases of personal injury and death.* It practically places part owners in a vessel in the same sit- uation as holders of full-paid stock in a corporation. The only serious criticisms upon its operation are those sug- gested in the forcible dissenting opinion by Mr. Justice Matthews in The G-reat Western.^ There were before the 1 The North Star, 106 United States Reports, 17, 29. 2 Quinlan v. Pugh, .56 Federal Reporter, 111. 8 The Republic, 61 Federal Reporter, 112; The Annie Faxon, 75 Federal Reporter, 312-316. * Craig V. Continental Ins. Co., 141 United States Reports, 638 ; The Albert Dumois, 177 United States Reports, 240. 5 The Great Western, 118 United States Reports, 526; The City of Norwich, 118 United States Reports, 468. ADMIRALTY 477 Supreme Court three cases of collision, and he thus summa- rizes the result : — " It thus appears that in one case the owners of a vessel, whose fault caused a loss to others of more than $250,000, escape all liability over $5000, having received more insurance than neces- sary to pay the whole amount of the loss ; in another, the owners are repaid the whole value of the vessel in insurance and are exonerated from a decree against them of over $7000 on pay- ment of less than $2000; and in the other, the owners keep their vessel, discharged from all liens, and receive nearly $50,000 of insurance with which to repair and restore her, and relieve themselves of all liability on account of losses, decreed against them, to the amount of over $26,000. The question is, whether these results can be justified by a reasonable interpretation of the law limiting the liability of shipowners." The "Harter Act" was passed in 1893. It relates to the liability of shipowners for loss of, or damage to, cargo. Prior to its passage, the owner could not contract ^jj^ Hartw against his liability for the negligence of officers ■*^'''- or crew, because such a contract would be contrary to public policy. It forbids, among other things, the insertion in a bill of lading of any agreement relieving the owner or vessel from liability for loss or damage arising from negligence in the loading, stowage, custodj', care or delivery of cargo, or lessening the obligation of the owner to " exercise due dili- gence to properly equip, man, provision, and outfit said vessel and to make her seaworthy ; " but provides that "if the owner . . . shall exercise due diligence to make her seaworthy," there shall be no liability for damage or loss resulting from faults in the navigation or management of the ship, or various other causes specifically stated. For many years the owners of steamships had been in the habit of inserting various qualifying conditions in order to meet the earlier decisions. As a result, bills of lading were uncertain and unfit for negotiation and some of their terms were usually unreasonable and unjust. ^ This Act was 1 The Delaware, 161 United States Reports, 459. 478 ADMIRALTY designed to modify and fix the relations between vessel and cargo, so as to put our commercial law on a par with that of Europe, and to permit the shipowner to provide for certain reasonable exemptions from liability which had been forbid- den under those decisions. ^ While it supersedes prior in- consistent provisions, it does not modify or repeal the Limited Liability Act already noticed. ^ "Plainly the main purposes of the Act were to relieve the shipowner from liability for latent defects, not discoverable by the utmost care and diligence, and, in event that he has exer- cised due diligence to make his vessel seaworthy, to exempt him and the ship from responsibility for damage or loss resulting from faults or errors in navigation or in the management of the vessel."' The Supreme Court of the United States is not unanimous in its views as to the construction of this Act. Thus, the majority have held that in every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty of the owner that the ship is seaworthy at the be- ginning of the voyage ; that the Act does not exonerate him from liability for injury caused by latent defects, no matter how great his diligence. Mr. Justice Brown, in the dissent- ing opinion in The Oarib Prince, says : — " I think that recent cases in this Court have imposed a most severe and impracticable measure of liability, — one which operates with great hardship upon the prudent and careful owner, and one which is calculated to invite further legislation in the direction of the Harter Act." * A brief memorandum of some decisions on the Harter Act may be of interest. ' R. R. V. Lockwood, 17 Wallace's Reports, 357. == Calderon v. Atlas Steamship Co., 64 Federal Reporter, 876 ; 69 ib. 574 ; 170 United States Reports, 272. 3 The Irrawaddy, 171 United States Reports, 192-194; In re Meyer, 74 Fed- eral Reporter, 882. * The Carib Prince, 170 United States Reports, 664, 665. ADMIRALTY 479 It does not apply to liability to other vessels for collision with them,i even if one or both vessels be laden with cargo.^ A clause exempting the shipper from damages for delay in case goods cannot be found for delivery during vessel's stay at the port of destination contravenes the statute.^ The test of seaworthiness is whether a vessel is reasonably fit to carry the cargo she has undertaken to transport.* Its provisions apply to foreign vessels on a voyage from a foreign port to a port in the United States. ^ Its provisions as to bills of lading do not apply to passenger tickets, limiting liability for baggage.® There is this distinction between the Limited Liability and Harter Acts as to relieving a shipowner from liability. Under the first he must show that the loss or damage was without his privity or knowledge, as already explained ; for exemption under the Harter Act he must show due diligence by the owner himself and on the part of his agents ; that is, due diligence in the work itself. The Judiciary Act of 1789, vesting in the District Courts exclusive original jurisdiction in Admiralty, contained the following clause : " saving to suitors in all cases common-iaw the right to a common-law remedy where the '■«i™«<^'«s. common law is competent to give it." This means that in such cases as contracts of affreightment, insurance, and seamen's wages, which were within the jurisdiction of both Admiralty and common law when the Constitution was adopted, the suitor shall have his choice of courts and reme- dies." But it was not the intention of Congress thereby to defeat the exclusive jurisdiction of Admiralty courts of suits 1 The Delaware, supra. ^ The Chattahoochee, 173 United States Reports, 555. ' Calderon v. Atlas Steamship Co., 170 United States Reports, 272 ; but see 64 Federal Reporter, 874. * The Silvia, 171 United States Reports, 462. 5 Knott V. Botany Mills, 179 United States Reports, 69. * The Kensington, 36 Circuit Court of Appeals Reports, 533. ' Waring v. Clarke, 5 Howard's Reports, 441, 461. 480 ADMIRALTY in rem and allow the State courts to proceed directly against the ship.i Whether this clause is merely declaratory; how far, if at all, Congress or a State legislature can enlarge or diminish Admiralty jurisdiction, are questions which have been much discussed.^ The whole subject is historically and exhaustively treated in the case of The Q-lide, already consid- ered.^ There a Massachusetts corporation sought to enforce the lien in the State Court, which a Massachusetts statute pro- vided for upon a domestic vessel for materials furnished in her home port. The State Court entertained jurisdiction and ordered a sale of the boat, and this was aifirmed by the Supreme Court of Massachusetts. The Supreme Court of the United States reversed this decision, and held that while the lien was valid it was only enforcible against the vessel in an Admiralty court. It is a singular illustration of the conservatism of the Admiralty and of the hesitation of its courts to assert their full powers under the Constitution, that the right of the State courts to exercise jurisdiction under State statutes providing for the enforcement of liens for maritime torts or contracts by proceedings in rem in the State courts was not raised in the Supreme Court of the United States until 1866,* and was not finally settled until 1896. Admiralty also adopts and enforces State laws allowing damages for death caused by ships, although no such remedy existed at common law or under the maritime law at the adoption of the Constitution, but does not give such damages in the absence of such statute. In 1886, the Supreme Court ended the conflict on this point, criticising those District Courts which had granted such damages on the vague ground of natural justice, and declaring that as " the maritime law, 1 Hine v. Trevor, 4 Wallace's Reports, 560, 571. 2 Town of Pelham v. Woolsey, 3 Federal Reporter, 462 ; The Eagle, 8 Wal- lace's Reports, 15 ; The Lottawana, 21 Wallace's Reports, 576 ; Ex parte Boyer, 109 United States Reports, 632. 3 167 United States Reports, 606. * The Moses Taylor, 4 Wallace's Reports, 411 ; The Hine v. Trevor, 4 Wal- lace's Reports, 556. ADMIRALTY 481 as accepted and received by maritime nations generally, leaves the matter untouched," the Court was not at liberty to touch it.^ As to the enforcement of a claim for damages pro- vided for by State statutes, a question which was left open in The Harrishurg, the Supreme Court, in 1891, laid down the rule that when the State statute gave a remedy in per- sonam. Admiralty could enforce it in personam; but if it gave none in rem, that is, no lien, Admiralty could enforce it in personam, but not in remP' It will be observed that the latter half of this rule is negative, but it has been interpreted in its aifirmative suggestion by two Circuit Courts of Appeals.^ Conclusions nearly similar have been reached in England, likewise under a statute. It seems strange that Admiralty courts should adopt and enforce State laws which confer rights unknown to Admiralty and which Admiralty alone is powerless to create, and at the same time deny to State courts the right to enforce those same laws which the State legislatures alone have promulgated. Yet this is what has been done. The logic of the State death-lien is probably the same with the logic of the State material-lien. Both are created by State legislation and en- forced by the Admiralty law.* Prior to 1815, suits on contracts of marine insurance were ordinarily brought in the common-law courts, and it was doubted whether Admiralty courts had iurisdic- . „ .,.. .. Insurance. tion. Mr. Justice otory, m his famous opinion in Be Lovio v. Boit,^ held that a policy of marine insurance was a maritime contract, and that such contract was within, though not exclusively within, the Admiralty and maritime jurisdiction. In Insurance Company v. Bunham, decided in 1870, the 1 The Harrisbnrg, 119 United States Reports, 213,214. 2 The Corsair, 145 United States Reports, 347 ; see also The Albert Duraois, 177 United States Reports, 240. 2 The Glendale, 81 Federal Reporter, 634; Laldlaw v. Oregon Nav. Co., 81 Federal Reporter, 879. * The City of Norwalk, 55 Federal Reporter, 98. 5 De Lovio v. Boit, supra, No. 3776 Federal Cases. 31 482 ADMIRALTY Supreme Court, referring to the above decision, Said that "doubts as to the jurisdiction have occasionally been ex- pressed by other judges, but we are or the opinion that the conclusion of Justice Story was correct. " Closely connected with marine insurance is the doctrine of general average. Under this doctrine the voluntary sacri- Generai ^^^ °^ ^ P^^* °^ maritime property in peril, whereby average. (;jjg remainder is saved, entitles the owner to con- tribution out of the property saved, so that the loss shall fall alike on all property in peril. There has been, however, little or no change in the ancient law on this subject. The test question as to what constitutes a voluntary sacrifice is exhaustively discussed in the majority and dissenting opinions of the Supreme Court in the case of Balli v. Troop. ^ It has been already shown in what sense State laws cannot restrict or enlarge the scope of Admiralty jurisdiction, and . that as to rights cognizable in Admiralty even the decisions of the State courts of last resort do not relieve the Admiralty Court from the duty of exercising its own judgment.^ But in cases of damage from maritime torts arising from negligence there is a great diversity of opinion as to the extent of the power of Admiralty courts to enforce its rules of liability where no such liability existed at common law. This conflict of opinion is strikingly illus- Municipai trated in the opinions of the Supreme Court of corporations. Q^^ United States in Worhman v. Mayor, decided in 1900.^ There a steam fire-boat owned by the City of New York, in attempting to aid in extinguishing a fire, neg- ligently collided with libellant's barkentine. The District Court held that the city was liable; the Circuit Court of Appeals reversed this decision. The question presented was whether a municipal corporation is liable in Admiralty for a tort committed by its agent in negligently performing its 1 Ralli 1). Troop, 157 United States Reports, 386. ^ The J. E. Rumbell, supra ; The Lottawana, supra ; Greenwood v. Westport, 60 Federal Reporter, 577 ; Edgerton v. Mayor, 27 Federal Reporter, 230. 3 179 United States Reports, 552. ADMIRALTY 483 administrative and governmental duties or the duties imposed on it by law. Mr. Justice White, delivering the majority opinion of the Court affirming the decision of Judge Brown, held that while courts of Admiralty would refuse to redress maritime torts committed by a sovereign where, because of tlie immunity of the sovereign or by reason of rules of comity, it had no jurisdiction, yet the theory of exemption from liability for acts of an agent in the performance of govern- mental duties could not be invoked or applied in the Admi- ralty Court where the defendant was subject to its jurisdiction. The Court further held that the result of the opposite theory would be to abrogate not only the uniform maritime law, but in such cases to allow the local law to govern in the decision of cases as to patents, copyright, and commerce generally. Mr. Justice White says : " It results that, in the maritime law, the public nature of the service upon which a vessel is engaged at the time of the commission of a maritime tort aifords no immunity from liability in a court of Admiralty, where the Court has jurisdiction. This being so, it follows that as the municipal corporation of the City of New York, unlike a sovereign, was subject to the jurisdiction of the Court, the claimed exemption from liability asserted in the case at bar, because of the public nature of the service upon which the fire-boat was engaged, — even if such claim for the purpose of the case be conceded, — was without foundation in the maritime law, and therefore afforded no reason for denying redress in a court of Admiralty for the wrong which the courts below both found to have been committed." Mr. Justice Gray delivered the dissenting opinion, con- curred in by three other Justices. They held that the rule of uniformity in Admiralty was limited to such questions as general commercial laws or limitation of liability proceedings, and that no libel in Admiralty could be maintained as for a tort upon a cause of action on which by prevailing law no action at law could be maintained. Mr. Justice Gray con- cludes the opinion as follows: "In any aspect of the case, therefore, we are of opinion that this suit cannot be main- 484 ADMIRALTY tained against the City of New York; not by the local laws of New York, because that law, as declared by the Court of Appeals of the State, is against the maintenance of such a suit; not by the maritime law, because according to the municipal law prevailing throughout this country, as declared by the highest court of every State in which the question has arisen, cities are not liable to such suits, and no authorita- tive precedent or satisfactory reason has been produced for applying a different rule in a court of Admiralty." This case contains an exhaustive discussion of the character and jurisdiction of Admiralty law. Our Admiralty courts have jurisdiction of seizures made on navigable waters for breach of revenue laws, and of proceed- ings in prize cases brought into a port of the United States. ^ In the later cases the Admiralty courts recognize and administer international law as distin- guished from the positive law thus far considered. It " con- sists in certain rules of conduct which modern civilized States regard as being binding upon them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obej' the laws of his country. "2 In time of war this jurisdiction assumes great importance. Questions of prize are always adjudicated in courts of the captor's country; though if the capture violated the neutrality of any country, that country may, upon occasion, judicially inquire into the matter. Prizes may be captured, under proper circumstances, from the enemy, from a neutral, or from the captor's own country- men. Enemy's commerce, contrary to the rule on land, which exempts private property of non-combatants, is, gener- ally speaking, liable to capture. The political status of the owner and not his personal sympathy is the test of owner- 1 The Sarah, 8 Wheaton's Reports, 396. The Santissima Trinidad, 7 Wheaton's Reports, 283 ; The Betsey, 3 Dallas' Reports, 108. ^ Hall on International Law (4th ed.), I. ADMIRALTY 485 ship.i Neutral ships can be taken generally only when carry- ing contraband or attempting a blockade, but are otherwise free, so that enemy's goods not contraband are protected by the neutral flag. Ships of the captor's own countrymen may be taken when caught red-handed in trading with the enemy. But a countryman becomes a neutral for trading purposes if his commercial domicil is neutral ; whereas an enemy cannot thus protect himself, his relation being tested by his political status. The law of prize has been developed through international legislation by means of treaties, conventions, and executive declarations, and by means of judicial decisions. Its judi- cial development may be illustrated by the doctrine of " con- tinuous voyages " during the Civil War, and by the decisions as to blockade and exemptions from seizure in cases of cap- ture during the late Spanish War. The doctrine of " continuous voyages " applies against neutrals and countrymen. In general terms it is xhe continu- as follows: When the ultimate destination of ""s voyage, ship or cargo is such as to infringe belligerent rights, the offending ship cannot escape by stopping at an intermediate neutral port. This doctrine was first generally accepted and applied a hundred years ago, when, in the war between England and France, our ships, having been confiscated for carrying goods from the French West Indies to France, landed the goods in this country and then reshipped them to France. In such cases it was held that if there was an original intent to export to France which was practically uninterrupted, there was one continuous voyage. The doctrine as developed by the Civil War is as follows : A ship intending to run a blockade is not saved by intending to stop at a neutral port meanwhile ; ^ a ship carrying contra- band intended for the enemy is not saved either by stopping or even by trans-shipping goods at an intermediate neutral 1 The Benito Estenger, 176 United States Reports, 568. 2 The Circassian, 2 Wallace's Reports, 135. 486 ADMIRALTY port, " unless there be an honest intention to bring them into the common stock of the country," where they are trans- shipped. ^ And the dishonest intent need not have existed at the beginning of the voyage. Paying duties at the neutral port is no defence.^ The contraband cargo may be condemned and the ship released, when the latter is innocent of illegal intent.^ The doctrine is applicable to a vessel captured on its way home after deviating in its course to touch at and trade with an enemy's port.* It is in accordance with these earlier decisions that the United States applied the continuous voyage doctrine in the Spanish War. In The Pedro ^ the Supreme Court reviewed the prior decisions on this question. The President's procla- mation of April 26, 1898, inter alia, provided that "any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place and to discharge her cargo, and afterwards forthwith to depart without molestation." The Pedro was a Spanish steamer. She sailed from the harbor of Havana April 22, the day after the war began, with a cargo destined for an enemy's port. She was, however, under contract to proceed ultimately to a port of the United States, there to load for Europe. The Supreme Court held that the Pedro was not within the exemption of the proclamation and that the doctrine of con- tinuous voyages had no application. England, France, and Italy have approved the rule. In the Transvaal War, Eng- land attempted an unwarranted extension of the doctrine by capturing German and American ships carrying provisions to Portuguese colony ports in Delagoa Bay, on the ground that they were -intended for the Transvaal. It seems plain that ' The Bermuda, 3 Wallace's Reports, 514. 2 The Bermuda, 3 Wallace's Reports, 554. ^ The Springbok, 5 Wallace's Reports, 1. ' The Ship Octavia, 8 Cranch's Reports (United States), 451. 5 The Pedro, 175 United States Reports, 354. ADMIRALTY 487 provisions belong to that class of goods which are only occasionally contraband, — i. e., when bound for a blockaded or besieged place or army. In 1794, when we were too weak to effectuate our protest, we nevertheless protested at England's calling these contraband in the French Revolution, though destined for an unbesieged place. ^ The Declaration of Paris provided that "Blockades, in order to be binding, must be effective ; that is to say, main- tained by a force sufficient really to prevent access to the coast of the enemy. " Formerly, blockades were not considered effective unless there was more than one blockading vessel off the port. The Supreme Court of the United States in The Olinde Rodriguez declined to apply this definition literally, but held that it was directed against paper blockades, and that if a single cruiser rendered it in fact dangerous for other craft to enter a port, such blockade was effective.^ In this case our vessels followed the original American rule of giving official warning of the blockade in advance. In The Adula, a majority of the Court held, in accordance with its former decisions, that actual notice of a de facto blockade is sufficient.^ During the progress of the war certain small fishing smacks were captured. After an elaborate review of the discussions of International Law authorities on this ques- tion, it was decided by a divided court in The Paquete Hahana that by a now established rule of interna- tional law such coast fishing vessels, unarmed and with their cargoes and crews, while honestly pursuing their peaceful calling of catching and bringing in fresh fish, were exempt from capture.* 1 Neutral Rights and Contraband of War, by Prof. T. S. Woolsey, The Out- look, vol. Ixiv. p. 170. 2 The Olinde Rodriguez, 174 United States Reports, 513. 3 The Adula, 176 United States Reports, 361, 371. * The Paquete Habana, 175 United States Reports, 677. 488 ADMIRALTY So in The Buena Ventura,'^ the Supreme Court held that a Spanish merchant vessel engaged in an innocent commercial enterprise, and on her way from a port of the United States to a foreign port at the outbreak of the war, was exempt from seizure and entitled to continue her voyage under the President's proclamation, although captured before its issu- ance, because upon a liberal interpretation of said proclama- tion it must have been intended to apply generally to vessels which loaded and departed from our ports prior to April 21, 1898, the limit of time in which they were allowed to load and depart. On the other hand, in the case of The Panama,^ a Spanish mail steamer carrying arms under contract with the Spanish government providing for her use by it in time of war, the Supreme Court held that vessels carrying the mails were not exempt from capture, and that The Panama was "enemy property, bound for an enemy port, carrying an armament susceptible of use for hostile purposes, and herself liable, upon arrival in that port, to be appropriated by the enemy to such purposes," and not within the "Spanish merchant vessels only" exemption of the proclamation. The advantages of judicial legislation in this branch of the law, the effect of judicial decision in crystallizing the usages of nations, the construction of executive proclamations in the light of the prior decisions and present exigencies are ques- tions of vital present interest. They belong, however, to the domain of International rather than Admiralty Law. As stated in the beginning, the practice of Admiralty is pervaded by a more liberal spirit than that which is found in courts of common law. It will not turn a partv Practice. /• j> c j out of court for mere mistakes in form; it may delay a case for months after the hearing has been begun in order to secure the testimony of an absent witness ; it may entertain evidence not admissible under the artificial rules of ' The Buena Ventura, 1 75 United States Reports, 384. 2 The Panama, 176 United States Reports, 535. ADMIRALTY 489 common law ; it may order a survey. Admiralty courts may exercise equitable as well as legal jurisdiction and may often give equitable as well as legal relief. Many equitable sub- jects, however, do not come within its purview. It does not decree specific performance of contracts, nor enforce mortgages or trusts, nor entertain actions of account. Its jurisdiction and decrees are appropriate to the subject-matter; it dis- penses justice, rather than technical equity, unhampered by a jury. It may be asked what faults are to be found in the Admi- ralty law. The limitation of the right of appeal permits long-continued conflict on points of law between the courts in different circuits, and the doctrine that Congress cannot affect the extent of Admiralty jurisdic- tion is an evil which has only been remedied in part. There are also criticisms in some quarters of the practical operation of the Admiralty courts, of the cost involved, and of some of the alleged inconsistencies of the law, and suggestions have been made as to universal legislation concerning salvage, shipowners' liability, and some other subjects. It may safely be asserted that in general the administration of the Admiralty law furnishes no ground for complaint ; that speedy justice is satisfactorily administered; that Modern every material question of fact and law is carefully Admiralty. considered ; and that it would be difficult to conceive or carry out a system which would more completely fulfil the require- ments of maritime commerce, or more perfectly effectuate the purpose of Admiralty, — that is, to promote substantial justice. The history of Admiralty in England is like the ebb and flow of the tides which have served to confine its jurisdiction. As the courtiers of King Canute attempted to use his royal word to stay the advances of the sea, so the common-law law- yers, through Lord Coke, sought by the writ of prohibition to prevent the operation of the laws of the sea. So kings and parhaments emulated the example of Xerxes, who, when the force of the waves swept away his bridge across the Darda- 490 ADMIRALTY nelles, " inflicted three hundred lashes on the rebellious sea and cast chains of iron across it." But at last even the power of kings and law courts were as ineffectual to hinder the progress of the majesty and strength of the Admiralty as was Dame Partington when, with her mop and pattens, she sought to stay the advance of the Atlantic Ocean in the great storm of Sidmouth.^ In England, a course of legislation has removed the bar- riers interposed by the common-law courts and has built up a new system of Admiralty law adapted to the exigencies of modern maritime commercial undertakings. In the United States, the genius of Story, of Bradley, of Brown, and other great jurists, has served not so much to create a system as to discover and reason out the Admiralty law as shown by immemorial usage, by the principles of the civil law, and by the provisions of maritime nations for secur- ing substantial justice. The Admiralty is an inspiration borne like the clouds upon the breezes of the ages from Oleron and Rhodes ; a goddess rising from the sea, trained to its smiling moods, its stormy passions, its •rocks and currents. As the Greeks reasoned that the perfect statue was already in the block of marble, and it only required the skill of the sculptor to bring it out, so the judicial interpretation and construction of ancient cus- toms has disclosed the perfect system of to-day until, like the. Galatea of Pygmalion, the Admiralty lawyers have learned to love the creation which the Admiralty courts have discov- ered, and into which they have breathed the new breath of the life of the Nineteenth Century. 1 Life and Times of Sydney Smith, p. 298. XVIII INTERNATIONAL LAW 1701-1901 BY THEODORE SALISBURY WOOLSEY, M.A., LL.B. International Law, defined as the sum of those rules which govern the relations of sovereign States, is founded upon reason and usage, and depends for its growth upon such evidences of reasonableness, of use and of acceptance, as the clashing desires and necessities of States have brought to light. It can neither grow nor, in fact, have r^j^^ colonial an independent existence, except as it is called pe™d. upon to satisfy a certain want, of intercourse to be defined. There must be States in relation with one another, to create this want. But until the independent existence of the Amer- ican Republic was established, there were no sovereign States in the proper sense of the term upon this continent. There were colonies with powers of legislation, but they were desti- tute of the attributes of external sovereignty. It is necessary to make this clear in order to explain how completely the topic of the present chapter differs from the other topics treated of in this volume. The law of real property, of con- tracts, of evidence or pleading, may trace its growth through- out the colonial era to American agencies, while the rules of International Law could not be affected by local conditions and demands. Our treatment of the subject, then, properly begins with 1776. And yet the seventy-five years elapsing between the founding of Yale and American Independence were not with- out a certain acquaintance with the rules of war, the nature 492 INTERNATIONAL LAW and negotiation of treaties, the rights of embassy. There was practical diplomacy in the dealings of colonial agents with their home government, as well as in their negotiations with the French authorities to the North and with one another. In this way Benjamin Franklin, for instance, got his training. That such practical acquaintance in the col- onies with certain features of International Law had effect upon that law's growth is not to be believed; but that it paved the way for the subsequent development of the law is entirely possible. A few references to such application of International Law here may therefore be of value. And yet how irregular and anomalous this application was ! A Governor of Massachusetts, Dudley, conferred with various sachems of Maine tribes, in 1703, and the result is called The Treaty of Casco. Agents were sent by Massachusetts to Quebec in 1705 to arrange an exchange of prisoners and propose a treaty of neutrality. This proposition was acceptable to Vaudreuil if New York and the other English provinces could be included in it, and if, also, the English could be debarred from fishing in the Gulf of St. Lawrence. But the latter condition was beyond the powers of the Commissioners. In 1709, when arranging for joint action of the provinces against the French, the Massachusetts authorities laid an embargo on shipping. Another Massachusetts Governor, in 1725, made a treaty of peace, called Dummer's Treaty, with various Indian tribes.^ Several Governors-General of Nova Scotia made or re- newed treaties of peace with Indians, which were said to have been ratified by the Chiefs on the one hand, by the Council on the other. Sir William Johnson, in 1768, negotiated a treaty with the Six Nations for settling the boundary between them and ^ Massachusetts Historical Collections, XXXV. 364 ; New Hampshire Historical Society Collection, I. 124, 129, 131 ; Penhallow's Indian Wars, p. 119. INTERNATIONAL LAW 493 the British colonies. William Franklin was present at this conference in the interests of New Jersey, and wrote of the value of the arrangement " if the Boundary is speedily rati- fied."^ Here would seem to be examples of the exercise of sovereign powers by the colonies, and the recognition of the same as residing in the Indian tribes. But when these treaties are examined they appear to be unilateral ; they are far from possessing that reciprocal char- acter which the dealings of sovereigns presuppose. The Indians agree to do or refrain from doing certain things, influenced by fear or bounty. The colony itself makes no stipulations. Negotiation is in the hands of the Governor, not as the agent of the colony, but as the representative of his sovereign. Thus in Dummer's Treaty the text runs, " And we do hereby promise and engage with the Honorable William Dummer, Esq're, as the Lieutenant Governor and Commander in Chief of his Majesty's province of the Massa- chusetts Bay." Sometimes ratification is added by council or by sovereign, sometimes apparently not. The natural conclusion is that such treaties were made by the Governors either as military officers in command, or as the personal representatives of a sovereign across the sea. In both capac- ities much latitude was necessarily given and taken, by reason of distance from the source of sovereignty, and from the necessities of the case. With the rules of war the colonies came into more legiti- mate contact. Their ships took prizes. Their General ar- ranged the capitulation of Louisburg, in conference with the British Admiral. Prisoners were exchanged; truces were made ; the flag of truce respected. The pages of Parkman, in his graphic picture of a Half Century of Oonflid, are full of such incidents. But when we trace back the powers of the Governor to their source, it is always as his sovereign's representative that he acts. And when Acadia was con- quered, its people were told to swear allegiance to the British Crown. 1 New Jersey Archives, 1st Series, X. 95. 494 INTERNATIONAL LAW Whatever the colonies claimed ; however their acts seemed to savor of sovereignty; we may safely say that no one of them possessed it, and repeat our original statement that the only International Law which they came in contact with was that recognized and practised by their sovereigns in Europe, for none could be originated here. What are the characteristics of this law in Europe as it developed during the period under review? The first half of the eighteenth century was not a time of special growth or importance in the history of International The eighteenth Law. England, having won maritime suprem- centtiry. a.cy, was naturally averse to any relaxation of the rules of naval warfare as they had come down from the Consolato del Mare^ Her tendency was just the opposite. Thus the addition of naval stores to the list of contraband, begun in the previous century, was retained. So, too, the "Rule of the War of 1756," for which, likewise, there was precedent, forbade the neutral merchantman to engage in a belligerent's colonial trade, under penalty of loss of the ship, on the ground that it was thus identified with the enemy's interest and stamped with his character as much as by a license to trade. This was harsher than her previous prac- tice, which had confiscated enemy's goods in a neutral ship, but not the ship itself. On the other hand, the attempt of Prussia to stand up for neutral privilege, excellent in itself, was vitiated by the unsound reasons offered to justify her action. Prussia asserted the " free ships make free goods " rule, basing it on th& theory that a merchant-ship was territory, and interfer- ence with her on the high seas a violation of sovereignty, which in time of war was absurd. Unable to maintain this theory, Prussia's reprisal, the confiscation of so much of a government loan as was owned in England, was deplorable, the last instance of a bad practice. War on land was somewhat milder than in the previous century, in respect both to persons and property. Quarter was usually given; non-combatants were spared; their prop- INTERNATIONAL LAW 495 erty fared better also, for armies had their own supply trains instead of living off the country ; yet ravaging vi^as lawful. Thus, generally speaking, this period was one of slow preparation for the progress in the law which was to come ; namely, for the predominance of neutral influence and of humanitarian ideas applied to war; but these changes were yet hardly foreshadowed. It is not, therefore, probable that the American colonies between 1700 and 1775, had they been independent sovereignties, would or could have done more than to assist in planting the seed which was to germinate later. Let us turn now to the new status brought about by the declaration of American independence. From this act dates the beginning of the internal sovereignty of a true American State, ^ whose external sovereignty — i. e., its right to enter into relations with other States — was recognized by France in her treaties of 1778, by Great Britain in the Treaty of Peace of 1783. From this moment appear such expression of law and policy, such assertion of rights as have had an appre- ciable influence upon the growth of International Law. For then, first, were there true international relations needing to be defined, and an independent State trying to perform its duties and to insist upon its rights, in accordance with the rules of International Law, upon this continent. And recog- nizing the binding force of these, the Constitution of 1787 gave Congress power to define and punish offences against them; 2 while the Supreme Court of the United States has declared International Law to be a part of the law of the land.^ This incorporation came about through the fact that the law of nations was part of the common law of England ; and independent of this, through the recognition of Congress during the War of the Revolution.* 1 Mcllvaine v. Coxe's Lessee, 4 Cranch's Reports, 212. 2 Constitution of the United States, Art. I. sec. 8. 3 The Nereid, 9 Cranch's Reports, 388-423 ; Bentzon v. Boyle, 9 Cranch's Eeports, 191, 198. * Kent's Commentaries, I. 1. 496 INTERNATIONAL LAW But there is still one important fact to be kept in mind in discussing the growth of International Law in the United States. Unlike other kinds of law, it cannot Effect of . , . , , . r • 1 o national come into being rrom the action oi a single btate. It is the result of the consent of many States. "We must not look, therefore, for anything more than influ- ences, tendencies, policies tending to introduce or expand a certain principle, which must finally depend for its adoption upon general assent. Such influences may be individual or national ; they may be scientific only, or may spring from a permanent, well-considered policy of the State. Hence we cannot measure growth in International Law as one might the stature of a youth, or the girth of a tree, by a foot-rule. We must rather deduce the fact of its growth in any country from the national tendency of that country, and from the further fact of growth in a wider political society. This will be clearer if we take an example; for instance, the Monroe Doctrine, so often alluded to as America's peculiar contribution to International Law. Strictly speaking, the Monroe Doctrine is not a rule of International Law, because it has not been accepted or reciprocally adopted by all nations. But as an illustration of the legitimate expansion of the fundamental right of self-defence, its history has been most instructive, and it has certainly influenced the growth of the law in that particular. The first topic to engage our attention, as indicative of the growth of International Law in the United States, is con- cur early nected with its earlier treaties and the diplomacy treaties. gf which they were the result. During the twenty-five years which succeeded the declaration of its Independence in 1776, the United States made thirteen treaties with ten different States, of which four were African. There were, besides, several minor commercial arrangements, but it is in these thirteen treaties, and particularly in the nine with Christian powers, that the early policy of the country appears. It is true that their negotiators did not in all cases realize their ideals or even fulfil their instructions. INTERNATIONAL LAW 497 The new State was too weak for that ; what it could offer as an equivalent too insignificant. We must know the limita- tions of those times to appreciate their achievements. But in the correspondence leading up to these treaties we find what was desired, and in their terms what was accomplished. The true interests, and therefore the true policy of the coun- try, were early realized. Its isolated position permitted it to hold aloof from European politics. The importance of its commerce and the carrying trade counselled every effort to safeguard and to foster them, when its friends were at war. And so we find from the outset that its interests were be- lieved to be neutral and peaceful interests. An example of this is the offer of the United States to join in the Armed Neutrality of 1780, an offer which was rebuffed by Russia. The terms of the treaties of 1778 with France were influ- enced by the necessity of getting aid in the Revolutionary War. The Treaty of Peace with Great Britain in 1783 related to limits, the fisheries, and loyalist estates and claims. In 1783 and 1785, first was there free expression of our national policy in the treaties with the Netherlands, Sweden, and Prussia. In one of Jefferson's letters ^ are given the instructions to the Ministers Plenipotentiary, appointed May 7, 1784, to negotiate treaties of commerce with the European powers. They were directed to stipulate for reciprocal freedom of trade; for nine months' delay for removal of property in case of war; for exemption of fishermen, cultivators of the soil, and artisans peacefully pursuing their calling, from the opera- tions of war ; for payment for property taken from such ; for freedom of all innocent trade, even an enemy's, from capture ; for abolition of privateering ; for special favor to contraband ; that free ships shall make free goods ; that blockades to be valid must involve imminent danger and not exist on paper only. This represented a settled policy. Some of these provi- 1 Jefferson's Works, by H. A. Washington, IX. 226. 32 498 INTERNATIONAL LAW sions bad been inserted in tbe 1778 treaty with France; many of them appear in these treaties just referred to. Jeffer- son in bis autobiography ^ tells us that during the Free ships . . ■ , tt i i it . ■ make free negotiations With Hartley our commissioners ^°° ^' had proposed, on the suggestion of Dr. Frank- lin, to insert an article exempting from capture by the public or private armed ships of either belligerent when at war, all merchant vessels and their cargoes, employed merely in carry- ing on the commerce between nations. " " We inserted this article in our form with a provision against the molestation of fishermen, husbandmen, citizens unarmed and following their occupations in unfortified places, for the humane treat- ment of prisoners of war, the abolition of contraband of war which exposes merchant vessels to such vexatious, ruinous detentions and abuses, and for the principle of free bottoms, free goods." As Jefferson states, it was Dr. Franklin who was respon- sible for these ideas. In a letter to Vaughan, 14 March, 1785, he wrote about privateering, "it is high time for the sake of humanity that a stop were put to this enormity. "^ And five years before, when acting as Judge of Admiralty, sitting in France, he had charged an agent for the American cruisers to order that no more English goods on Dutch ves- sels be seized unless contraband. " All the neutral States of Europe seem at present disposed to change what had before been deemed the law of nations; to wit, that an enemy's property can be taken wherever found, and to establish a rule that free ships shall make free goods. This rule is itself so reasonable and of a nature so beneficial to mankind, that I cannot but wish it may become general."^ That the principle advocated was in violation of tbe pre- vailing law he thus admits. It had been the rule and prac- tice of England since the earliest times, derived directly from the Consolato del Mare, that the nationality of prop- 1 Jefferson's Works, by H. A. Washington, I. p. 62. " Franklin's Letters, IX. p. 80. ' Franklin's Letters, VII. p. 62. INl^ERNATIONAL LAW 499 erty, whether ship or goods, determined its liability to cap- ture. But the good of humanity, and the interest of a trading State less inclined to war than to peace, prevailed with him to try and change the prevailing law. It is a curious fact that although advocating this rule of free ships, free goods, so early in its career, and although inserting it in various treaties, with France, The Nether- lands, Sweden, Prussia, Morocco, and others ; although com- mitted to it and bound by it throughout its entire history, — the United States nevertheless has never acceded to ^that great international instrument which confers this privilege upon the neutral, the Declaration of Paris of 1856. The history of the right to commission privateers in this country has been very similar. All of its early treaties mutually forbade the subjects of their signatories to accept letters of marque from a third power at war with one of them. Statutes enforced this rule in the United States. It has not employed the right to commission privateers as an aid in war since its national existence began. Even in the recent war with Spain, a power which had also clung to the right, privateering was formally renounced. Yet the theoretical right is retained under the specious pre- text of the Marcy Amendment, and the equivalents for its surrender are lost until the world is ready to grant the immu- nity of all private property at sea from capture. No bread is better than half a loaf, said Mr. Marcy, a sentiment to which we may believe Poor Richard would not have subscribed. Nevertheless, this country's later attitude does not detract from or obscure the importance of its early policy, to put privateering under the ban, to stand for neutral privilege, and to enlarge the non-combatant class. The special favor shown to contraband in the treaties with Sweden and Prussia is worth noting. Its carriage was not to condemn a ship, the surrender of the guilty ^ , , n 1 ■,^ ,1 r 1 Contraband. goods set the vessel loaded with them tree, and the Prussian agreement substitutes pre-emption for seizure. This is not the modern tendency, which, while enlarging the 500 INTERNATIONAL LAW neutral's privilege in the matter of innocent trade, tends to hold him more rigidly accountable in that traffic which is forbidden. There are two sides to neutrality, — neutral rights and neutral duties. The maintenance of neutral rights and ex- pansion of neutral privilege by the United States, as described above, forms one contribution to the existing law of nations; the performance of its neutral duties during the great struggle between France and the rest of Europe forms another. How well this duty was performed the English statesmen during our Civil War had occasion to testify, when studying the precedents which should guide their own conduct. The situation was peculiarly awkward. France had claims Upon the gratitude of the country. She desired and expected aid, and maritime assistance could have been effectively given. One of the political parties in the United States was in sympathy with her, even in spite of the excesses of the French Revolution. Neutrality was es- teemed cowardice, weakness, ingratitude. Yet repeatedly, with insufficient means but with perfect courage and straight- forwardness, both combatants alike were prevented from com- promising the neutral attitude which Washington had chosen and initiated. His proclamation of neutrality of April 22, 1793, was the first step; the neutrality statute of 1794 was the second. The proclamation gave warning "that whosoever of the citi- zens of the United States shall render himself liable to punishment or forfeiture under the law of nations by com- mitting, aiding, or abetting hostilities against any of the said powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States against such punishment or f orf eiture. " ^ In the diplomatic corre- spondence which ensued, distinction is made between contra- band articles for export and illegal increase of armament or crew of a vessel intended to cruise against a friendly nation. 1 Richardson's Messages, I. p. 156. INTERNATIONAL LAW 601 Enforcement was entrusted to collectors of customs by cir- cular letter of August 4, 1793. Certain provisions of the French treaties of 1783 complicated the question of recep- tion of privateers and their prizes. The trial of Henfield for illegal enlistment (Wharton's State Trials, 49) resulted in acquittal on account of ignorance of the proclamation, but the Judge ruled that the act charged was a crime. A num- ber of convictions did take place, however, for the illegal acts of French armed ships, aided by Genet, the French Minister, such as increase of armaments, increase of crew, illegal commissions, illegal captures and condemnations by French prize courts illegally sitting in this country. Then on June 5, 1794, was passed the statute for the better preser- vation of neutrality, the first of its Itind in any country. The statute forbade, within the waters of the United States, the fitting out, arming, or equipping (or attempting the same) of any ship with intent that the same should be employed in the service of any foreign prince or State, to war upon another prince or State with whom the United States was at peace ; or to commission the same ; under penalty of fine or imprisonment and forfeiture of the vessel and its contents. ^ This neutral policy was the foundation of the early com- mercial prosperity of the United States. These rules to prevent its citizens from aiding one of two belligerents were fairly deducible from the accepted principles of that time, but were in advance of its practice, being more specific, stricter, more comprehensive, as one may see by reading the chapter on neutraHty in the treatise of Vattel, who was then a much-quoted authority. Hall says,^ "The policy of the United States in 1793 constitutes an epoch in the develop- ment of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obliga- tions then incumbent upon neutrals. But it represented by far the most advanced existing opinions as to what those obligations were." 1 United States Revised Statutes, sec. 5283. 2 Hall's International Law (2d ed.), p. 550. 502 INTERNATIONAL LAW And Lawrence writes similarly, ^ "These proceedings of the United States from 1793 to 1818 mark an era in the development of the rights and obligations of neutral powers. The grounds on which the action of the American govern- ment was based are to be found in the works of the great publicists of the eighteenth century; but never before had the principles laid down by these writers been so rigorously applied and so loyally acted upon." In 1818, another statute added to the phrase "foreign prince or State," the words "colony, district, or people," to insure the inclusion of the warring South American Repub- lics in revolt from Spain. It also authorized the detention of vessels on suspicion and exacted bonds for lawful observ- ance, from the shipowners. In these particulars it excelled the British Foreign Enlistment Act of 1819, which was based upon it. The British Act was tested during our Civil War and found wanting. A substitute was passed in 1870, more specific, more easilj' enforcible, moi'e satisfactory, and which, in its definition of the foreign body, which it is forbidden to aid, is better worded than our own law. The three rules of the Treaty of Washington of 1871, by which Great Britain agreed that her liability in the Alabama claims should be judged, were in turn stricter and better than anything prior to them, or, rather, one should say that they would be better if their meaning were absolutely clear. Other powers were to be invited to subscribe to these rules, but such action has neither been asked for nor taken. The neutrality laws of the United States have since 1871 been severely tested in the matter of preventing expeditions in aid of the two Cuban insurrections, but have been enforced with a fair degree of success. From this brief account of the definition and enforcement of neutrality by the United States, it will be apparent that the interest of the country has lain on the side of a strict 1 Lawrence, International Law (Sd ed.), p. 483. See Dana's note, 215, p. 536, of his edition of Wheaton for a full account of this period and the United States Neutrality Statutes. INTERNATIONAL LAW 503 performance of this duty. That this policy was advanta- geous as well as right, however, does not detract from the merit or ohscure the fact that a more rigid interpretation and performance of its duties as a neutral than had been hitherto known, was put into effect by the United States in their earliest and weakest years. The precedent set at that time has been a standard for all nations since. Our statutes have influenced the statutes of others. It is the verdict of history and the testimony of publicists, that in raising the standard of neutral duty the United States have materially influenced the law of nations. There is another direction, historically allied to that just touched upon, in which the influence of this country has aided the growth of International Law, that commonly referred to by the phrase " the freedom of the seas." One manifestation of this is seen in Article III. of the Treaty of Peace with Great Britain of 1783. "It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all the other banks of Newfoundland ; also in the Gulph of St. Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish." This was not a grant of rights, but a recognition of rights. It was a disclaimer of jurisdiction over the high seas (where these submerged banks or shoals lay), by the country most inclined to claim such jurisdiction. It was but the simplest form which the assertion of the freedom of the seas could take. Very soon this freedom was attacked in varied fashion. It is natural that a State should try to magnify the mili- tary arm in which it is strongest. This has been true of England and her navy. To this end, her interpretation of belligerent rights has been harsh, and her orders and stat- utes relating to the sea have inclined to severity. ° Impressment. Amongst the latter, a century ago, was a naval press law founded upon the doctrine of indelible allegiance. 504 INTERNATIONAL LAW the enforcement of which was ordered upon foreign as well as upon British ships. Here the theory of allegiance was admissible; the press law was a legal exercise of sovereign power. The illegal step in the practice was the enforcement of a municipal law outside of British jurisdiction; that is, upon the vessels of another power upon the high seas. This was met by our government with remonstrance only, because of its weakness. The impressment practice became a crying evil, involving the exasperation and delay of many searches, occasional blunders as to nationality, and in at least one case. The Chesapeake, the humiliation and outrage of enforcement on board a United States man-of-war. On the other hand, it did not in itself hinder the commercial growth of the country appreciably ; moreover, a specious, perhaps a reason- able excuse for it lay in the necessity of keeping the British navy fully manned during the Napoleonic struggle. The claim to impress alleged British sailors on board American vessels was not confined to time of war; it was never formally surrendered;- it lapsed from disuse, its ille- gality after a time being recognized. But it served to induce the United States government to take strong ground in favor of the freedom of the seas from any claim of juris- diction by another power, and against any right of search not necessary to make the rules of contraband and blockade effective. It was the recollection of this disagreeable episode in our relations with Great Britain, of her injustice and arrogance, that served to commit the United States to the attitude which is now to be mentioned. The anti-slave trade movement in its international aspect consisted in the negotiation of a number of treaties be- tween England and other powers which conceded a mutual right of search of suspected vessels. Practically this meant the right of search by British men-of- war, for no other nation cared to assume the burden of slave- trade suppression. So long as one or two States resisted joint action of this kind, the movement necessarily failed of INTERNATIONAL LAW 505 success, for the slave traders would sail under the flag of the non-signatory. Hence the arrangement of a mutual right of search with the United States became essential to the move- ment, and largely from the reasons above outlined, that con- sent for long was refused. Failing this, British officers and British courts tried several substitutes. One was the ruling that the slave trade, being forbidden by American as well as by English statutes, was an international offence, unless permitted by the laws of the slaver's own country. ^ This construction involved the search of suspected American ships on the high seas in time of peace, and in case of seizure, their trial by an English court. The flaw in this doctrine lay in the claim to enforce another State's laws upon its ships and subjects on the high seas. Though at first sanc- tioned by Lord Stowell, it was later overruled by the same high authority.^ Another plan to secure the right of search (in other words, to limit the freedom of the seas) was the British doctrine of visit as distinct from search, to ascertain whether i{jgi,t t„ a ship belonged to a State conceding to Great "^'sit siups. Britain the right of search in peace for slave-trade preven- tion, or not. This was likewise resisted by the American government, on the very proper ground that it was a real, even though limited, attempt to exercise a jurisdiction un- warranted by International Law or by treaty. This right of visit was not abandoned until 1859, when Lord Lyndhurst stated that "no such right as that contended for has ever existed." After this admission had been made, the United States raised no further objection to a treaty granting recip- rocal right of search for the suppression of the slave trade, and this was agreed upon in 1862. The pressure put upon Spain for the free navigation of the Mississippi, which was conceded in 1795, and r^hti Missis- the free navigation of the St. Lawrence arranged ^'pp'- 1 The Amadie, \ Acton's Eeports, 240 ; The Fortuna, 1 Dodson's Reports, 81. 2 Le Louis, 2 Dodson's Reports, 210. See also The Antelope, 10 Wheaton's Reports, 66. 506 INTERNATIONAL LAW by the United States with Great Britain in 1854, since followed by the opening up of the great navigable rivers of the world, are in harmony with this same tendency. On the other hand, the American claim to a right to protect the Pribilof seals in the open sea without treaty agreement was a step in the opposite direction. It is fortunate that the Paris Bering Sea contro- versy award has checked this tendency, which is so incon- sistent with this country's previous policy and history. So that now the freedom of the high seas from the exclusive jurisdiction of any one State, the principle which Grotius argued for, and Holland fought for, and the United States stood for, is complete. It is only by a broad construction that the Monroe Doc- trine can be cited as another example of the kind of growth The Monroe which International Law has experienced in the Doctrine. United States, and yet that part of our history should by no means be omitted. The Monroe Doctrine is not a rule of International Law. It is not a law at all, but a policy. Its meaning has greatly changed since its origin in 1823. Its present shape and significance vary considerably according to the medium through which they find expression. On the other hand, this "Doctrine," whatever its meaning, is not only a cardinal principle of the national policy, it is also accepted as such by foreign powers and their conduct is shaped accordingly. At bottom, the Monroe Doctrine was originally a perfectly legitimate case of self-defence, and was so stated. In its recent application to the Venezuelan bound- ary, the same basis is claimed for it. But if one stops to consider that, the more powerful the United States grow, and the less they have to fear, the more extensively this doctrine has been applied, the basis of self-defence seems to shrivel up, and the Monroe Doctrine is seen to have changed into a diplomatic instrument for the gradual extinction of foreign sovereignty over this continent. The simon-pure article (whose origin it is not necessary to repeat, for every one knows it) was a blow aimed at the doctrine of intervention INTERNATIONAL LAW 507 in behalf of absolutism and against a liberal form of govern- ment. Had this claim of right to intervene been allowed to go unchecked, it might have resulted in the incorporation of a false and dangerous principle into International Law. This policy of anti-intervention prevented such a tendency, and in so far may fairly be said to have added something to that body of public law which governs the relations of States. There is a topic quite diverse from anything thus far men- tioned, which excellently illustrates how the United States have influenced the growth of International Law ; TSatmaX- namely, the movement for uniformity of natur- ization. alization, for facilitating transfers of allegiance, and for giving effect to the laws of naturalization of one country in another, a creditable chapter in American diplomacy. Certain countries, the United States among them, once professed the theory of indelible allegiance. This led to some curious results. For instance, if a man indelible born in such a country became naturalized in allegiance. another, and the two became hostile, each had a valid claim upon his services. An English woman who married a for- eigner remained English ; a foreign woman who married in England became English. The existence of such absurdities was one argument for greater uniformity in naturalization laws. Another and much stronger reason was found in the claims to military service which the States making such service compulsory enforced upon former subjects or the sons of subjects who had escaped it by unlicensed emigra- tion. Such emigration has been generally permitted by European countries only upon proof that all outstanding obligations to the State have been fulfilled. Such obliga- tions were, first, taxes; second, due payment of penalties for crimes committed; third, military service of the kind ex- acted from every youth in those countries where it was uni- versal. Before our Civil War many cases of Germans had occurred where, after naturalization in the United States, a temporary residence in the former home had resulted in arrest and compulsory service under the colors. Forced to recog- 508 INTERNATIONAL LAW nize both the legality of the German claim and the hard- ship involved in its enforcement, the remedy attempted was to secure release in each individual case by diplomatic intercession. After the Civil War, the trouble became more serious, as our diplomatic correspondence abundantly shows. Many Germans had gained citizenship by service in the Northern army, but upon revisiting the Fatherland found themselves interfered with. Then they invoked the protection of the State Department. Various remedies were suggested. Thus a naturalization agreement was proposed by Prussia in 1866, which fully recognized naturalization of Prussian subjects in the United States after ten years of absence, and exempted those avoiding military service by emigration before the age of seventeen, from the fine and imprisonment which were previously meted out to them. Again, the same year, Bis- marck offered to recognize American naturalization after seven years' absence. But our government desired full rec- ognition of naturalization granted under its laws, aud in 1868 Mr. Bancroft urged this concession upon the North Ger- man Union, which after 1866 included and was dominated by Prussia. His efforts were successful. The Naturalization Treaty, signed February 22, 1868, provides as follows: — Art. I. "Citizens of the jSTorth German Confederation who become naturalized citizens of the United States of America, and shall have resided uninterruptedly within the United States five years, shall be held by the North German Confederation to be American citizens and shall be treated as such." And the agreement is reciprocal. "The declaration of an intention to become a citizen of the one or the other country has not for either party the effect of naturalization. This article shall apply as well to those already naturalized in either country as to those hereafter naturalized." Art. II. "A naturalized citizen of the one party, on return to the territory of the other party, remains liable to trial and punishment for an action punishable by the laws of his original country and committed before his emigration; saving always the limitations established by the laws of his original country." INTERNATIONAL LAW 509 But by Article IV. a return to the country of origin and two years of residence there may be held to work renuncia- tion of nationality elsewhere acquired. Art. V. Treaty to last ten years, but terminable there- after at twelve months' notice. As an aid in construing this treaty, the debate over it in the Diet is of value. Bismarck said that uninterrupted five years' residence was to be taken "nicht in korperlichem sondern in juristischem Sinne. " Again, it was asked whether, "as the liability of the naturalized citizen on his return to his original country extended only to breaches of the law before emigration (Article II.), any breach of law committed ly emigration itself was excluded from the class of punish- able actions. " Herr Ktinig, who signed the treaty, and Dr. Schleichen of the Diet's Committee, replied, "Yes." This meant that escape from military service followed by naturali- zation in the United States was not a punishable offence. And this view was confirmed by Bismarck, who said that the treaty expressly provides that those whom we are bound to acknowledge as United States citizens cannot be held to military duty in North Germany, adding that this was the main object of the treaty. He also stated that after renun- ciation of naturalization and return to German allegiance, a man was practically a new citizen, subject only to such mili- tary duty as men of his age were held to. His past was wiped clean. This example was followed by Bavaria, Baden, Belgium, Mexico, S weden and Norway, and Wtirtemberg in 1868 and 1869; by Austria in 1870 and Denmark in 1872. Austria and Baden, however, modified the arrangement cited, by exacting military service from those actually drawn, who evaded it and then returned, in spite of naturalization. Great Britain, in the Naturalization Act of 1870, adopted the five years' residence rule and surrendered the theory and practice of inalienable allegiance, as the United States had done in 1868, this last to bring its judiciary in line with its executive policy, for the courts had inclined to follow Eng- lish precedents. Thus the influence of the United States 610 INTERNATIONAL LAW has tended to establish five years as the proper period of residence to entitle to naturalization ; ^ it has secured respect for its naturalization laws by treaty with a number of States ; and it has overthrown the idea that allegiance is unalterable, — altogether a considerable achievement. The growth of International Law as affected by American influences has been shown principally in the relations of States in time of peace, or at least standing neutral in the wars of others. But the progress of events for some years Laws of after 1861 forced this country into the rdle of a '^'"^- belligerent engaged both in land and in naval warfare. So that another and natural inquiry relates to American influence in shaping the laws of war on land and of capture on sea, under the stress of warlike necessity and civil strife. Here there is not very much to be said. In the chief operations of war by land and by sea, the North conformed to the accepted theories of the time, which were harsh. Waste of enemy's territory was employed as a war measure by Sheridan and by Sherman. The rules concern- ing contraband and blockade were rigidly enforced. The conduct of the Northern cruisers sometimes, as in The Trent case, The Tuscarora at Southampton, and The Sumter at Bahia overstepped the legal limit. Mr. Seward in his char- acterization of the Confederate men-of-war as piratical, and in his condemnation of foreign recognition of Southern bellig- erency as well, was mistaken. Prisoners were treated with harshness by the North, and particularly by the South. There are perhaps three particulars in which we may trace the influences of this war upon International Law : (1) The new application of the doctrine of "continuous voyages;" (2) The adoption of an exact and enlightened code of rules to govern the armies of the United States in the field, drawn up by Dr. Lieber; (3) The authorized work of the Sanitary Commission, which led the way for the modern system of 1 The Constitution proposed for adoption in Cuba, 1901, prescribing this term, is the latest example of the tendency. INTERNATIONAL LAW 511 extra military aid for sick and wounded soldiers under the Red Cross. The history of the doctrine of continuous voyages goes back to about 1806, when it was devised and applied by the Eng- lish Admiralty Judge, Sir William Scott, to check evasions of the rule of the war of 1756. This forbade the neu- ^ , . Doctrine of tral to engage in time of war in a trade closed to continuous him in time of peace. -^ When, therefore, at the beginning of the last century, the French tried to maintain connection with their colonies by opening such trade to neutral vessels, this rule declared such vessels identified thereby with the French merchant marine and liable to capture. Then the American carriers, instead of making the direct voyage from a French island or colony to France, which was forbidden, substituted for it a voyage from the said colony to an Amer- ican port, followed by a further voyage to a French port, these not being forbidden. The character of this roundabout route was concealed further by landing the goods at the halfway port and paying duties on them. Then came the Court's discovery that these two voyages, in spite of the halt, trans-shipment, and payment of duties, formed one contin- uous voyage nevertheless, equally forbidden by the rule of the war of 1756. ^ Yet it was admitted that if the importa- tion into the neutral country was made in good faith, the goods being indistinguishable from the general stock, — that is, with no intention to export clinging to them throughout the transaction, — then the two voyages were both legal. They did not form one continuous transaction. Thus the test of liability lay in the intent governing importation. ^ During the Civil War in America, an entirely new apphca- tion was made of the principle above described ; namely, to check evasions of the rules governing blockade and contraband. So far as blockade was concerned, the new application was aimed principally at the Nassau trade. Inasmuch as ships 1 The Immanuel, Tudor's Leading Cases, 948; 2 C. Robinson's Reports, 186. 2 The William, 5 C. Robinson's Reports, 385. 8 The Maria, 5 C. Robinson's Reports, 365. 512 INTERNATIONAL LAW showing intention to break blockade could be seized as soon as they had left a foreign port, it was natural to hide this in- tention by sailing for some neutral destination not much off their real course, in order to be safe up to that point. In practice, however, the goods were there usually trans-shipped and put through in a regular blockade runner. The pre- sumption of the Court that the ship, which is the vehicle of offence in blockade violation (the goods implicated merely following its fate), was engaged in one continuous voyage whose terminus lay beyond the blockade lines, thus was apt to break down. In The Springbok,'^ for example, the ship was released on appeal, while the goods were condemned on what many thought insufficient proof of intent. For as in the English cases of the early part of the century, genuine sale and incorporation into the common stock of Nassau would deprive goods of such hostile character as would con- demn them before consummation of the offence; and what court could fairly judge, at the outset of the voyage, whether such sale would take place or not ? But in the case of contra- band, where it was the goods rather than a ship which was primarily guilty, and where their adaptability to the Confed- erate service often made their character clear, the continuous voyage principle was fair enough, where intent as regards their eventual delivery clung to them through the trans- shipment and sale. The case of the British ship Steven Hart^ is in point. She was captured in 1863, bound for Cardenas in Cuba, a neutral port, not very far from the Confederate coast. Her cargo consisted entirely of war material. In giving judgment, Mr. Justice Betts said that the test of the goods was whether they were imported for sale and consumption in the neutral market or not. If intended for the use of the enemy, the mere touching at a neutral port, for trans-shipment or for a fresh departure, could not exempt the contraband cargo from capture. Accordingly both vessel and cargo were condemned. ^ Blatchford's Prize Cases, 434 ; 5 Wallace's Reports, 1. 2 Blatchford's Prize Cases, 387. INTERNATIONAL LAW 513 Another ship, The Peterhoff, was bound for Matamoras in Mexico, up the Rio Grande. She carried much war mate- rial, some of it unmistakably adapted and intended for Con- federate use. The District Court had condemned both ship and cargo, but on appeal the ship was released, while the guilt of the goods was affirmed on the score of their intended hostile destination.^ There was a sort of precedent for this in the fate of the cargo of The Vrow Houwina, bound from Lisbon to Hamburg, in 1855. This consisted of saltpetre, and was condemned as contraband on the ground of an inferrible, eventual, hostile destination in Russia by overland carriage, which constituted a continuous voyage. And in 1895, during the war between Italy and Abyssinia, there was a similar case, of The Boelwijk, carrying contraband to a neutral port, but with an overland hostile destination attaching. The Italian council of prizes sanctioned the prin- ciple, but restored the capture because the war had ceased before condemnation could be reached. This further applica- tion of the continuous voyage principle was formally approved by the Institute of International Law in 1896, as well as by many publicists. Exactly the same question arose in the British operations against the Boers, their vessels searching German merchant steamers for contraband goods billed to Lorenzo Marquez, a Portuguese port, on suspicion that a Transvaal destination overland really attached to them. It is interesting to note how a theory somewhat doubtful at its origin has been taken up from time to time and adapted to meet the necessities of a belligerent, until it finally is accepted as law by every one. In this process of growth, in the his- tory of the doctrine of continuous voyages, the United States has played an influential, perhaps a determining part. A second feature of the International Law of the Civil War to which attention is called, is General Order 100, a code of rules to govern the armies of the United States in the field. 1 Blatchford's Prize Cases, 463 ; 5 Wallace's Reports, 28. 33 514 INTERNATIONAL LAW This was drawn up at the request of the United States government by Francis Lieber, in 1863. Although never General adopted by any other power, and thus in no sense Order 100. incorporated into the Law of Nations, it has had very considerable influence upon the subsequent attempts at codification, by the Brussels Conference in 1874, by the Com- mittee of the Institute of International Law at Oxford in 1880, and by the Hague Conference in 1899. To comment upon its provisions seriatim, would require far more space than the present chapter affords. And it is true that in many particu- lars the later codes have excelled it in explicitness and in humanity. But it was notable at the time of its adoption for its humanitarian tendencies as well as for its success in state- ment and definition of the prevailing rules of land warfare. ^ The last of the Civil War topics to be referred to in this connection is the Sanitary Commission, not alone for its own The Sanitary Sake, but as a precedent for civilian aid to the (jommiasion. wounded in war. This great organization ex- pended some seven million dollars, distributed vast quantities of supplies, equipped hospitals, hospital steamboats and cars, -gave relief on the battlefield, gave instruction in camp sani- tation, and in many other ways supplemented the medical corps of the army. The Red Cross movement began while the Sanitary Commission was still at work, but under inter- national authorization and neutralized by treaty, advantages which the American body lacked. The system of extra mili- tary aid under military control has thus become incorporated into the laws of war. Turn now to one more instance of American influence upon the growth of International Law, the increased use of special arbitration as a means of settling disputes between Arbitration. t i • t i nations. In this the government, the peace socie- ties, and national sentiment have united with powerful and unmistakable effect. The culmination of this policy was seen 1 Bluntschli, writing in 1868, said that these "instructions" were more detailed and more thoroughly civilized than the rules of war which were in use amongst European powers. Das Moderne Vdlkerrecht, p. 6. INTERNATIONAL LAW 515 in the adoption of an arbitral system by the Hague Confer- ence in 1899. Early instances of arbitration are found in the Commissions arranged for in our treaties with Great Britain of 1794, to designate the St. Croix River boundary; of 1814, to appor- tion the islands in Passamaquoddy Bay; and of 1814 to determine the Northeastern boundary. Jay's Treaty also arranged to settle other than boundary disputes by Commis- sions. The arbitration of the King of the Netherlands in 1827 of the Northeastern boundary question was a failure, because he proposed a compromise instead of passing upon the question submitted. The notable successes of arbitration between Great Britain and the United States were in the Alabama claims, the San Juan boundary, the Halifax fishery case, and the Bering seal question. In Professor Moore's great work upon International Arbi- trations f)ublished by the United States government, these cases and many others are fully recounted, together with a history of arbitral schemes from the earliest times, a discussion of the rules and nature of arbitration, and a vast amount of related matter. These arbitrations were specially arranged for by treaty, and in certain cases there was added to the sub- mission of a question rules to govern the arbitrators, or a remedy for a specific evil, whichever won, or some other pro- vision which contained the germ of agreement within itself. The Congress of the United States, in addition, has given its sanction to the theory of a permanent arbitral agreement with Great Britain, although the Senate failed to ratify the Olney convention of 1897, which put such agreement into form. Taking all this into consideration, it is a fair state- ment that the policy and practice of the United States have had much to do with the present popularity and frequency of recourse to international arbitration. Concerning the recent war with Spain and its sequelce, there is little or nothing to be said which is ger- ° . . ./-IT Intervention. mane to our subject. The intervention in Cuba, like every intervention, was a case sui generis to be specially 616 INTERNATIONAL LAW considered and justified. It added nothing to international usage. The decision not to issue letters of marque, the leniency with which foreign ships seeking to pass the block- ade were treated, the favor shown to neutral trade by the President's proclamation, the refusal of the courts to condemn fishing smacks plying their trade innocently, — all these are so many proofs that the United States ended the last century as it ended the eighteenth, — a champion of neutral rights and of the freest trade consistent with the rights and necessities of war. As it emerges from political isolation into the distasteful atmosphere of European rivalries, doing the police duty of the world side by side with its neighbors east and west across the seas, there is reason to believe that this country will play the same straightforward, manly, honest part as in the past, a little brusque and bungling now and then, but standing for fair play and fair trade, for neutral interests rather than bel- ligerent interests, for arbitration of international differences, for good-will to neighbor States. An international law which means all this is worth cultivating. Such growth from the seed which the fathers have sown is the harvest of a century. Before closing this chapter, a few words may be appropri- ately added to characterize the writings of the publicists during the period under discussion. When our government took its place among nations, its statesmen were guided by the treatises of Grotius, Barbeyrac, The literary Puffeudorf, Bynkershock, above all, Vattel.^ nnrtnTprL battel was uscd, 1792-1795, by President Stiles our interna- " ' ./ tionai law. at Yale for instruction. These were all conti- nental writers. The successors of Grotius cared more for reason than for precedent. The common law found them wanting in sympathy. But the Nineteenth Century has reversed this, and in this readjustment American writers have played an honorable part. Kent's chapters on International Law, forming a part of his general survey of American law, written in 1826, offer a happy blending of reason and prece- dent as the sources of its rules, a clear and impartial survey 1 Madison's Letters. INTERNATIONAL LAW 517 of the whole subject, and a robust national spirit loyally- presenting his country's point of view in mooted questions like that of jurisdiction over territorial waters. Thorough mastery of the topic, a clear presentation, and profound acquaintance with precedent, particularly in adjudicated cases, these may be said to be the characteristics of Chancellor Kent's work. Ten years later appeared Wheaton's Elements, the most important treatise upon International Law which this coun- try has produced. Wheaton, bred to the law, and reporter during eleven years of the decisions of the United States Supreme Court, joined to this training familiarity with for- eign men and ideas and twenty years of diplomatic experi- ence. He has a wider point of view and better historical equipment than Kent, has less sense of proportion in his matter, but larger personal experience with which to illustrate his topic. His two works, the Elements and the History of the Laiv of Nations, made a profound and lasting impression upon his generation. Woolsey wrote the year before the Civil War. Although trained in the law, he approached his Introduction to the Study of International Law from the standpoint of the histo- rian and the moralist. Written clearly, and with great fair- mindedness, and penetrated with deep religious spirit, his book, designed as a college text-book, arid for the reader of history rather than for the lawyer, has had a wide popularity and inflaence. It was several times reprinted in England. It was even translated into Chinese. Being the latest au- thority during the Civil War, it and its author had great authority in the burning questions of that troubled time. Dana, who edited Wheaton in 1866, adding copious notes to his text, has given a complete commentary upon the Inter- national Law of the Civil War. He ranks well with all the aforementioned, an exhaustive and philosophical student of the law, with admirable grasp and robust judgment. Had he lived, we should have had a formal treatise, more distinctive than the notes to another's work could possibly be. 518 INTERNATIONAL LAW The later writers must be dismissed with a few words. Halleck and Davis, both army officers, have written credit- able works ; the latter a text-book for West Point, the former a treatise which lays stress on the rules relating to war. Many men have discussed subordinate and related topics, and Snow has prepared for the Navy Department a concise but clear and admirable text-book, than which nothing better could be put into an officer's hands. His collections of cases, treaties, diplomatic precedents, and so on are also useful. That the study of International Law should have been so extensively and well pursued as it has, in a country where, by reason of peace and by reason of isolation, it is less practi- cally useful than in many others, is a little curious. Per- haps the explanation lies in the lack of special training for public life in the United States, but the prevalence of such general training as will fit many a citizen for any position under government, or make of him a sound adviser in inter- national affairs. Chancellor Kent sounded this desirable note when he wrote at the end of his first lecture : — " A comprehensive and scientific knowledge of international law is highly necessary, not only to lawyers practising in our commercial ports, but to every gentleman who is animated by liberal views and a generous ambition to assume stations of high public trust. ... I think I cannot be mistaken in considering the elementary learning of the law of nations, as not only an essential part of the education of an American lawyer, but as proper to be academically taught." ^ 1 Early Instruction in International Law in American Colleges. A few notes which relate to early instruction in International Law in the United States are here presented. They have been gathered from old college catalogues, law-school circulars, scattered references, and particnlarlv from in- formation contained in Professor James F. Colby's report on the " Collegiate Study of Law,'' made in 1896 to the American Bar Association. In William and Mart College, President Lyon G. Tyler states that the Law of Nations was taught first by the Professor of Moral Philosophy in 1779, and continuously since, the text-book being Vattel until 1861. This seems to have been at Jefferson's suggestion. In his autobiography he relates that "being chosen one of the visitors I effected a change in the organization. . . . We added INTERNATIONAL LAW .619 the law of nature and of nations and the fine arts to the duties of the moral professor." This would seem to he the earliest instance of instruction in Inter- national Law in an American College which has couie to liglit. At Harvard in 1828-29, Honorable Joseph Story, appointed Dane Professor of Law, gave lectures on the Law of Nature and of Nations. The regular course in this branch used as text-booli " Required English." In 1868-69 Professor Hare replaced Professor Sharswood in teaching this sub- ject in the Department of Law. Williams College. — The coarse of study in the early Williams catalogues includes Vattel's iaw o/iVb(ions, from 1822 to 1835, for Seniors and quite evi- dently as a branch of moral philosophy. After 1836-37 the topic seems to have been omitted. INDEX INDEX Abandonment of invention, 409 ; of trade-mark, 442. Abridgments, 430. Acadia, 49.3. Act of Union of 1707, 10. Actions, increase in those of tort, 84 ; survival, 95 ; arrest on. 111; damages, HI; m rem, 455, 456 ; in personam, in admiralty, 456, 457. Adams, John, legal education, 16; de- fence of American Constitution, 30. Adams, H. B.,519. Administrative law, .37. Admiralty defined, 448 ; procedure, 449 ; old English practice, 449 ; the Black Book, 450 ; Coke's attacks, 450 ; in the American colonie.s, 450, 451 ; under the Confederation, 451 ; under our Con.stitution, 451-453; its Ameri- can judicial history, 453 ; navigable waters, 453, 451; dividing damages, 455 ; suits in rem, 455, 456 ; in personam, 456, 457 ; maritime liens, 457-459 ; pn'orities, 459-462 ; subrogation, 462 ; preferences, 462, 463 ; State statutory liens, 463-466 ; order of preferences, 466 ; laches, 466, 467 ; judicial sales, 467; salvage, 468, 469 ; charters, 469 ; the master, 470 ; the pilot, 470, 471 ; common carriers. 471, 472; marinepro- tests, 472 ; marine survey, 472 ; con- flict of laws ; foreign ships, 472, 473 ; Acts of Congress, 473-479 ; Limited Liability Act, 474-477 ; the Hartcr Act, 477^79 ; saving of common-law remedies, 479, 480 ; enforcing State Hens, 480, 481 ; contracts of insurance, 481 ; general average, 482 ; negligence, 482 ; of municipal corporation, 482- 484 ; seizures, 484 ; prize cases, 484- 488; doctrine of the continuous voy- age, 485, 486; provisions, 486, 487; blockades, 487 ; fishing-boats, 487 ; practice, 487, 488 ; defects in, 488. Adultery as a crime, 360. Adverse possession, 64, Agamenticus, 209. Agency, liability of principal, 288; in case of public corporations 288 289. Aggregations, 402. Air, rights to, 60. Albany, Congress of 1754, 21. Aliens, land titles, 54 ; as shareholders in domestic corporations, 282, Allegiance, 282 ; indelible, 507 ; modern treaties, 508, 509. Allodial title, 5.3. American Bar Association, 417, 518. American law, development of in gen- eral, 1-6 ; onr system of law reports as sources of history, 6, 7, 84, 259 ; influence on, of our colonial charters, 13, 261-264; early American bar, 13- 17, 268; beginnings of onr constitu- tional law, 18-20; of legal education, 20; our judicial system, 22; be- ginnings of judicial constitutional interpretation, 2.3-26; American po- litical ideals, 26, 27 ; right of judicial interpretation, 27, 28 ; the interlac- ing of State and federal courts, 28, 29 ; common-law doctrines, 29 ; fed- eral commercial jurisprudence, 29, 30; literary history of our constitutional law, 30-33 ; field of the XlVth amend- ment, 35, 36, 295; of the XVth, 36; distribution of governmental powers, 37,'38 ; main doctrines of our consti- tutional law, 38-40 ; drift toward cen- tralizati(m, 40, 41 ; the police power, 524 INDEX 41, 42; State right!?, 42; judgments of sister States, 43, 44 ; natural jus- tice, 45, 46 ; judicial legislation, 46, 47; laud laws, 48, 51-61 ; conveyan- cing, 61-63 ; land records, 63, 64 ; law of contract, 66-82 ; costs, 84-102 ; law of master and servant, 102-110; self- help, HI; tort actions, 111-113; Equity, in colonial period, 129-133; in the States, since, 133-139, 142-144; in the U. S. courts, 140-142 ; modern principles, 145, 146; judicial inter- pretation, 146-149 ; American legis- lation as to Equity, 149-152; mort- gages of land, 157-166; wills, 169, 172-195 ; testamentary charities, 196- 200 ; gifts, 201 ; public corporations, various forms of, 203-209 ; early American municipalities, 209-224 ; the State created towns, not towns the State, 225-228 ; general municipal incorporation laws, 228, 229, 247-251 ; free cities, 229 ; freedom of the city, 230-234 ; municipal officers, 234-238; modern municipal corporations, a development of American law, 239 ; constitutional provisions concerning, 240-247; home-rule, 251-253, 290; Dartmouth College Case, 253 ; disso- lution of municipality, 254-257 ; its private property rights, 257-259 ; Co- lonial appeals to king in Council, 18, 40, 41, 264, 265; early study of municipal corporation law, 261, 266; colonial charters for private corpora- tions, 266-269, 272-275 ; early joint- stock companies, 268-272 ; early State charters, 275, 276 ; judicial develop- ment of corporation law, 276, 277 ; charters are contracts, 278, 279 ; interstate corporations, 279 ; general private incorporation laws, 281 ; at- tributes of private corporations, 282, 283 ; acts ultra vires, 284-288, 290 ; such acts of municipal corporations, 288, 289 ; trust-fund doctrine, 290 ; " trusts," 291 ; conflict of laws, 292- 294 ; corporate franchises, 294 ; plead- ings in civil actions, 313-318 ; judicial evidence, 322-343 ; commercial law and procedure, 343-367 ; punish- ments, their object, 367-370; their form, 370-382; jury trials in crim- inal cases, 382, 383 ; new trials and appeals, 383-390; patents for in- ventions, 391-421 ; copyrights, 422- 434 ; trade-marks, 43,5-447 ; admiralty jurisprudence and practice, 450-484 ; prize cases, 484-488 ; pleadings in, 488 ; defects in system, 489 ; Ameri- can contributions to international law, neutral rights, 497-503 ; free naviga- tion, 503 ; Monroe Doctrine, 496, 506 ; naturalization changes allegi- ance, 507-510 ; humanity in war, 510, 513, 514 ; doctrine of the continuous voyage, 511-513; international arbi- tration, 514-516; American authors in international law, 516-518; colle- giate instruction in, 518-520. Ames, James B., 74. Amherst College, instruction in law ^n, 519. Ancient law, Maine's, 66. Andros, Sir Edmund, 130. Animals, escaping, 88, 98. Annapolis, 217. Anson, Sir William, 68. Appeal, of murder, 84, 346, 348, ,349. Appeals, to king in council, 18, 19, 40, 41 , 264, 265 ; in criminal eases, 383-390. Arliitration, international, 514, 515. Ashhurst, Sir Henry, 265. Associations, unincorporated, 268-276. Assumpsit, 315. Attestation, 335. Augusta, Ga., 234, Australia, Commonwealth of, 40. Authors, literary property of, 422, 424, 425. B Bacon, Lord, proposition of codification by, 4; on lawyers, as students of jurisprudence, 7. Bailments, 100. Baldwin, Judge Simeon E., 226, 250 ; introductory chapter by, 1 ; chapters by, on constitutional law, 9 ; private corporations, 261 ; pleadings in civil actions, 313. Baltimore, city government, 235. Baltimore Company, The, 270. INDEX 525 Bancroft, George, 508. Banishment, 375. Banking, early colonial land banks, 272 ; Bank of New York, 275 ; chartered banks, 276 ; Bank of North America, 278, 279 ; Manhattan Company, 305 ; Bank of the United States, 311. Bar, early American, 13, 15, 20; effect of the Revolution on, 17. Battle, Trial by, 346-349. Beers, Professor George E., chapter on Real Property by, 48. Bell Telephone patent, 404, 416, 420. Bellomont, Earl of, 274. Bentham, Jeremy, 338. Bill of lading, exceptions of negligence, 477-479. Bills of Exchange Act, 74. Bishop of London, commissaries, 274. Bismarck, Prince, 509. Blackstone, Sir William, style, 20. Blackstone's Commentaries, read in America, 20 ; treatment of constitu- tional law, 3 1 ; of land law, 50 ; of corporations, 239. Blasphemy, 366. Blatchford, Justice Samuel, 421. Blockade, the continuous voyage, 485- 487 ; Declaration of Paris, 487 ; fish- ing smacks, 487, 51 6 ; exemptions, 488. Borough, defined, 205 ; early American, 209, 210, 213, 214. Boston, early days, 208, 218, 219 ; made a city, 220 ; mayors, 235 ; early guilds in, 273. Bottomry bonds, 456. Boycott, 109, HO. Bray, Thomas, 274. Brown, Justice Henry B., 400, 421. Bryce, James, 203. Bubble Act, extended to American colonies, 267, 268, 272. Buildings, rights as to, 60. Bulkeley, Gershom, Will and Doom, 13. Burghs, 221, 222. Burr, Aaron, 46, 305. C California, constitutional provisions as to cities, 251. Calvinism, 27. Campbell, Lord, 94. Canals, admiralty jurisdiction, 454. Capital punishment, 360, 361, 380, 381. Carolina, 265. Carriers, common, 471. Chalmers, George, 16. Chancellors, English, 117, 120, 314 et seg. Chancery courts, 1 19 et seq., 314 et seq. Character, admitting proof of, 332. Charitable societies, early charters, 274, 279 ; acts of agents of, 288. Charities, bequests to, 196 et seq. Charleston, S. C, early days, 208 ; char- ter, 234. Charlestown, Mass., coopers' guild in, 273. Charter of ship, 458, 469. Charters, early colonial, 207 ; as a con- stitution, 1 1 ; legislative powers by, 13, 18, 261-263; originally private grants, 18, 278; granted by Govern- ors, 217; acceptance of , 2 1 8 ; proprie- tary, 1 8,2 1 8, 278 ; municipal, American forms, 251-253; revocation, 265, 278; from colonial legislatures, 266, 268 ; list of early American, 296-312 ; Eng- lish, for American use, 270, 274 ; English, joint-stock and regulated, 275; purchased, 277; as authority for contracts, 284 ; notice of, 284, 285 ; acts beyond, 285-288 ; implied powers of private corporations, 280, 294 ; of public, 288, 289 ; implied covenants by the sovereign, 295 ; by Territories, 312. Chase, Chief-Justice S. P., 34. Chief-Justice of the United States, how Marshall expanded the position, 32 ; how Chase did, 34. Children, execution of rebellious, 353, 359. Church of England, its footing in our colonies, 10; its spirit, 27; missions of, 274 ; charities of, iu America, 279. Churches, incorporation of, 266, 274. Cities, defined, 204 ; early American, 208-217 ; free, 229; freedom of, 230- 234. Citizen of State, privileges of, 293 ; cor- porations as, 283, 293. Citizenship, 282. 526 INDEX Civil War, our, 510, 514; conduct of, as to humauity in warfare, 510. Clap, Tliomas, 278. Clergy, influence on early American law, 2 ; benefit of, 349, 360. Clifford, Justice Nathan, 421. Cobb, Howell, as a codifier, 5. Code Napoleon, 158, 173. Codification, American tendency to- ward, 4 ; Lord Bacon's proposition, 4 ; how far achieved, 5. Coke, Sir Edward, 50, 449, 450, 489. Colby, Professor James ¥., 518. Colleges, American, charters for, 266, 267 ; by Territories, 312 ; teaching international law in, 518-520. Colonies, American, charters, 11,261; legislative powers, 13, 18; of life and death, 261-263 ; parliamentary control over, 18, 262; local autonomy, 263; appeals to King in Council, 264 ; how regarded in English courts, 63, 264 ; London agents, 2B5 ; grants of mo- nopolies by, 392 ; acts of an interna- tional character, 491-494. Colored race, protected by XlVth Amendment, 35 ; and XVth, 36. Columbia College, instruction in inter- national law in, 519. Combinations of corporations, 291. Commerce, interstate, 292; shipping, limited liability, 474-477 ; the Harter Act, 477-479. Common carriers, 471, 472. Common law, of England, 19 ; of America, 29, 350 ; as to lands, 52 et seq. ; as to torts, 86 et seq. ; as to crimes, 361-363. Community of property between hus- band and wife, 57. Companies, joint-stock, early American, 268-272. Competition, 105. Confederate States of America, no Su- preme Courts in, 34 ; the civil war, 510, 514. Confederation, Articles of (1781), 24; Courtof Appeals under, 33,451 ; State judgments, 43. Confessions, 333. Conflict of laws, lex loci, 79 ; lex fori, 79 ; lex loci rei sitce_, 80 ; lex loci con- tractus, 80 ; seat of corporation, 282 ; admiralty jurisdiction over foreign ships, 472. Connecticut, her first Constitution, 350 first code, 4, 352, 353 ; autonomy, 354 the General Court, 354 ; charter, 1 1 colonial bar, 15; appeal in Wiuthrop V. Lechmere, 19 ; provision for report- ing judicial decisions, 23 ; Equity Courts, 132 ; Practice Act, 144 ; theory of town origin, 225-227 ; early munici- palities, 216, 217; Constitution of 1639, 225-227 ; general municipal in- corporation Act, 229 ; freedom of the city in, 233, 234; New London Trading Society of 1732, 272; early incorpora- tions by, 301-303 ; code pleading in, 317; common-law crimes, 361-363; waiver of jury trial for crime, 382, 383 ; criminal appeals, 384 ; first to pass copyright law, 422, 423. Connecticut Gore Land Company, 275. Conscience, 122. Consideration of contracts, 68, 69, 70. Consolato del Mare, 449, 494, 498. Conspiracy, 90, 109, 110. Constitution, English, 9. Constitution of the United States, judi- cial construction of, 25, 26, 33 ; Four- teenth Amendment, 27, 35, 36, 295 ; Fifteenth Amendment, 36 ; is a grant of powers, 38 ; from the people, 39 ; effect of its adoption on trade, 275 ; argu- ments against its ratification, 280; obligation of contracts, 80-82, 253, 254, 294. Constitutions, written, 31 ; not a code, 39 ; implications from, 39 ; the ear- liest, 350 ; of State, unconstitutional statutes, 25 ; judicial construction, 26 ; are limitations of power, 38. Constitutional Conventions, New Jersey, 23; Federal, of 1787, Randolph's proposition as to the judiciary, 25, 33. Constitutional law, English, 9 ; be- ginnings of American, 19, 20 ; declar- ing statutes unconstitutional, 23-25, 32, 33 ; construing constitutions, 27 ; literary history, 30; European, 31; first University lectures on, 31 ; im- plied powers of government, 39 ; growth, 46; depends on judicial deci- INDEX 627 sion, 46 ; obligation of contracts, 80- 82, 253, 254, 294 ; police power, 82 ; provisions concerning municipal cor- porations, 240-254 ; no special char- ters, 247-250 ; eqnal protection of the laws, 295 ; due process of law, 295 putting man in jeopardy twice, 383 State patents for inventions, 392 ; ad miralty jurisdiction, 452, 453, 473 State liens on ships, 463-466, 479, 480, Construction, of documents, 27 ; of con- stitutions, 27 ; of statutes, 28 ; by popular acquiescence, 28 ; of wills, 168, 192, 193; of charters, 280. Consular courts, 449, 450. Continuous voyage, doctrine of the, 485-487, 511-513. Contract, as replacing status, 66 ; con- sensual, 66 ; forms, 67 ; seal, 67 ; cor- porate, 68; consideration, 68, 69; witnesses, 69 ; the parties, 70-72 ; subject of, 72 ; by correspondence, 71, 72 ; statutory regulation, 75 et seg.; construction and validity, conflict of laws, 80 ; impairing obligation, 80- 82, 253, 254 ; ultra aires of corpora- tion, 285-289. Conveyancing, 54 ; becoming simpler, 61,62; registration, 63; mortgages, 164; deeds and devises, 189. Conveyancing and Law of Property Act, 156. Cooley, Thomas M., 371. Co-operation, 3. Copyrights, beginnings of the system, 422 ; in England, 422 ; in the U. S., 422, 423 ; act of 1790, 423 ; first book copyrighted, 423 ; later Acts, 424 ; subjects of, 424, 428, 430; unpub- lished writings, 424, 425 ; what is a pulilication, 425, 426, of a lecture, 426, of a play, 426, of paintings, 426, 427 ; partial publication, 427 ; artistic sliill, 428 ; reports of speeches, 429 ; abridgments, 430 ; independent conception, 430; designs, 431 ; trade- marks, 431 ; newspapers, 431 ; rem- edies for infringements, 431, 432; international, 433 ; law reports, 433, 434. Corporation, Municipal, see Municipal COEPOKATIONS. Corporation, Private, " on the place," 13; winding up suits, 44; contracts, 67; charitaWe, 196 et seq.\ royal or Parliamentary charter, 218; general incorporation laws, 247 ; special charters, 247-250 ; early litigation concerning, 259, 260 ; the American colonies as, 261-266; artificial per- sonality, 266, 283 ; early American incorporations, 266-268 ; tables of, 296-312; nature of franchise, 266; English Bubble Act, 267, 274 ; early litigation concerning, 259, 260, 268 ; English cliarters for, 270 ; New Lon- don Trading Society, 272, 273 ; re- ligious societies, 273 ; cliaritable, 274 ; early State incorporations, 275, 276, 296-312 ; American law of, its origin, 261, 276-281 ; its differences from English, 277, 278 ; a charter is a con- tract, 278; interstate, 279, 280; con- struction of charters, 280 ; freedom of incorporation, 281 ; their seat, 282; citizenship, 282, 283 ; as subjects, 283 ; formalities in contracting, 284, 285, 290 ; ultra vires acts, 285-288 ; trust- fund doctrine, 290, 291; trusts, 291, 292 ; consolidation or merger of, 292 ; foreign, 281, 292-294; alienation of franchise, 294 ; condemnatiou of, 294 ; effect of XlVth amendment on, 295, 296 ; list of American charters up to 1800, 296-312; early English preju- dice against, 275 ; records, 290 ; unpaid shares in, 293 ; double liability, 294 ; public-quasi, 276; quasi, 271; qua.si- public, 224-228, 271, 276 ; sole, 277 ; public, the unchartered American colonies, 261 ; de facto, 261 ; our co- lonial provinces, 262 ; nature of asso- ciations, 289 ; early American law of, municipal, 262, 266 ; artificial persons, 283 ; governmental agencies, 288; acts of agents, 288 ; ultra vires acts, 289 ; home rule, 290. iSee Municipal CORPOKATIONS. Coroner, 347 et seq. Corpus Juris Civilis, 119, 165. County, what it is, 204, 205; early American. 207, 208. Courts, power of enforcing constitu- tions, 25, 26, 28, 32 ; of United States, 528 INDEX 142, 287, 318 ; of State, 28, 29, 287; blending with those of United States, 28, 29 ; Baron, and Leet, 206 ; judicial legislation, 276, 277. Courts of Probate Act, 175, 178. Crawford, John J., 74. Crime, defined, 345. Criminal law, its origin, 344 ; distinction between public and private wrongs, 344, 345 ; civil remedy of party wronged, 345 ; early English pro- cedure, 345-349; common-law crimes, 349,350, 361-363; extradition under the early Confederation in New Eng- land, 351 ; between the United States, 351, 352 ; early Connecticut code, 352, 353 ; that of Rhode Island, 354-356 ; Crown Judges, 356 ; witchcraft, 356, 357 ; grand juries, 357-359 ; mildness of' colonial criminal legislation, 360, 361 ; habeas corpus, 360; crimes against the U. S., 361 ; presumption of innocence, 363 ; safeguards for the accused, 363-365 ; nature of crime, 365-366 ; offences against religion, 366 ; object of punishment, 367 ; utili- tarian theory, 367,368; that of ret ribution, 368, 369 ; the reformatory, 369, 370; suspending sentence, 370, 371 ; pardons, 371 ; indeterminate sentences, 372-374 ; general modes of punishment, 374 et seq. ; ex post facto laws, 374; grading penalty, 375; by jury, 381, 382; compelling reparation, 345, 375, 376 ; civil death, 376, 377 ; extenuating circumstances, 377 ; in- equalities of penalties in different States, 377 et seq. ; whipping, 378- 380; capital punishment, 361, 380, 381 ; inroads on jury trials, 382, 383 ; second trials, 383 ; appeals by the State, 383, 384; English conviction final, 384 ; reversals by appellate courts for technical errors, 385-388 ; appeals by accused, 388-390. Cypres, 198-200. D Daggett, Chief Justice David, 519. Damages, action for. 111; dividing in admiralty, 455. Dana, Richard H., Jr., 517, 519. Dance, copyrighting, 428. Dartmouth College, instruction in law in, 519. Dartmouth College Case, 28, 81, 253, 279, 294. Davis, George B., 518. Death, action for, 93 ; in admiralty, 480 ; penalty of, 360 et seq., 380, 381 ; civil, 376 ; deodand, 456. Deceit, writ of, 89,; in trade-mark law, 443-447. Declaration of independence, 278 ; made the United States a corporation, 283. Declaration of Paris, 499. ■ De Douis, statute, 49. Deeds, 54, 61, 62 ; recording, 63, 64. Delaware, early municipalities, 215; municipal finances, 245, 246 ; early incorporations by, 306 ; criminal pro- cedure, 376, 378-380, 388. Demurrers, 317, n. Deodand, 456. Descent, of lands, 61, 167. Design patents, 411 ; copyrighting, 431. Detinue, 88. Dexter, Franklin, 519. Dicey, A. V., 26. Dillon, J. F., 121. Directors of corporations, as agents, 290 ; as trustees, 291 ; false returns by, 294. Discovery, bill of, 151. Discretion of judge, 333. Disseizin, action of, 88. Distress, for rent, 59. Distribution, of governmental powers, 37; of estates, 61, 186. Distributions, statute of, 186. Domicil, 282. Double use, 400. Douglass, W., summary, 11. Dower, 56, 183. Drain companies, 271. Dudley, Gov. Joseph, 269, 492; Sir Matthew, 269. Dumas, Jacques, 63. Dying declarations, 326. E Easements, 60. East India Co., 275, n. INDEX 529 Ecclesiastical law, early colonial, 10. Ecclesiastical societies, geueral incor- poration laws, 247. Edison, T. A., 420. Ejectment, action of, 88. Eldon, Lord Chancellor, 264. Elective franchise, in cities, 23.3. Electrocution, 380, 381. Eliot, President C. W., 519. Elizabeth, Act of, 43, 198, 199. Eminent domain, foundation of right of, 53 ; condemning corporate franchise, 294. Employers' Liability Act.s, 103. England, its law, the main source of American, 1 ; distingui.'ihed from Equity, 116 et seq.; of mortgages, 153-157 ; of wills, 188, 193 ; early gen- eral incorporation law, 28 1 ; early law of pleading, 314, 315 ; Judicature Act, 317; criminal procedure, 384; char- acter of bench, 3S4 ; copyriglit laws, 422 ; admiralty law, 448, 450, 486, 489 ; municipalities in, how incorpo- rated, 218 ; London, 215 ; number in 1889, 224; general lejzislation con- cerning, 250 ; policy as to rules of naval warfare, 494; and of naval rights. 503, 504 ; right of visit, 504, 505. Entailments, 55, 190. Equity, development of American, 129 et seq.; distinguished from law, 116, 135 ; fundamental principles, 117, 122 ; no jury, 118; modern period, 121; maxims, 123, 145 ; heads of jurisdic- tion, 124; leading cases, 125 et seq.\ does not vary law, 148 ; distinctions in pleadings between Law and Equity, 314 f< seq. Equity of redemption, 154, 155. Estate tail, 55, 190. Estoppel, against corporations, 286,289. Evarts Act, 417. Evidence, definitions, 319; nature of rules, 320 ; judicial notice, 320 ; the child of jury trials, 320, 321 ; early law of, 322 ; what is excluded, 322 ; hearsay, 323 ; pedigrees, 324 ; book- entries, 324 ; shop-books, 327, 328 ; dec- larations against interest, 325 ; dying declarations, .^26 ; of reputation, 327 ; 34 public registers, 327 ; absent or dead witnesses, 328; res gestce, 329, 330; declarations of the dead, 330 ; opin- ions, 331 ; experts, 331 ; of good character, 332 ; confessions, 333 ; dis- cretion of the judge, 333 ; execution of writings, 334 ; attestation, 335, 336 ; contents of writings, 336, 337 ; best, 335 ; secondary evidence, 337 ; wit- nesses, competency of, 338 ; confiden- tial communications, 339 ; credibility, 339 ; privilege to refuse to testify, 340 ; disqualifications, 340 ; examination of, 341, .342 ; evolution of this branch of law, 342, 343. Execution, by electric shock, 380, 381. Executive power, 37. Exeter, N. H., 227. Expert testimony, 331. E.T post facto law, 374. Extradition, 351, 352. F Family, punishment by the, 344. Federal commercial jurisprudence, 29, 30. Federalist, the, 30, 32. Felony, 112; compounding, 345. Fence laws, 88. Ferrara, University of, 31. Feudal tenures, 49, 53. Field, David Dudley, as a codifier, 5 ; father of the reformed procedure, 316; opinion of the Conn. Practice Book, 317,11. Finance, municipal, 241-247. Finch, Sir Heneage, 121. Fines, for crime, 374. Fiske, John, 226, 238. Forfeitures, 150. Foster, Professor William F., chapter on Contract by, 66. Fourteenth Amendment, the, 27, 35, 36, 295. France, law of 1884 as to municipali- ties, 250 ; patent system, 406. Franchise, corporate, 266, 277, 294 ; condemning, 294. Francis, Richard, 123. Frankfort Company, The, 269. 630 INDEX Franklin, Benjamin, at Albany Con- gress, 21 ; as colonial agent, 265 ; claims colonial charters are contracts, 278; his American-foreign policy, 498. Fraternities, colonial, 272, 273. Fraud, 89, 90. Frauds, Statute of, 57, 75-77, 149, 171- 173, 175, 176, 182, 187. Freedom of city, 230-233. Frye, Sir Edward, 368. Fulton, Robert, 412. G Gager, Judge Edwin B., chapter on Equity by, 1 1 5 ; on mortgages of Real Property, 153. General average loss, 482. Georgia, its code, 5 ; early municipal- ities, 216. Germany, naturalization treaty with, 508, 509. Gerry, Elbridge, 25. Gibson, Chief Justice, 25. Gifts, causa mortis, 201. Gorges, Sir Fernando, 209. Governors, colonial, appointment of, 207; right to grant charters, 217; admiralty jurisdiction, 450; pardon- ing power, 371. Grand jury, 348, 349, 358. Granger laws, 295. Grant, inviolable, 278 ; its consequences, 278. Gray, Justice Horace, 483. Great Britain, naturalization policy, 508. Grotius, Hugo, 474, 516. Guilds, Virginian town, 221 ; London, 230 ; New England fraternities, 272, 273. Guizot, 32. H Habeas corpus, 360. Hale, Sir IMatthew, work as acodifier, 4. Halleck, H, W., 518. Hamilton, Alexander, draws Paterson charter, 223 ; organizes a private bank, 275. Hardwicke, Lord Chancellor, 435. Hare, Professor J. I. C, 520. Harris & IVIcHenry's Reports, 16, 84, 260. Harrison, Benjamin, on our patent sys- tem, 421. Harter Act, 477-479. Harvard College, charter, 266 ; ferry rights, 297 ; instruction in inter- national law, 519. Hatton, Lord Chancellor, 120. Hawaii, annexation of, 43. Haynes, John, 350, 351. Hearsay, 323 et seq. Heirs, technical meaning, 190, 195. Henry, Patrick, 280. Holland, T. E., 118. Holmes, Chief Justice 0. W., 69, 86. Holmes v. Walton, 24. Holographic will, 173. Holt, Lord Chief Justice, 73, 346. Home rule, 40, 45, 290 ; a colonial doe- trine, 263. Homesteads, 57. Honesty, 122. Hudson's Bay Co., 275, n. Hundred defined, 206. Husbands, estate by the curtesy, 185. Hutchinson, Chief Justice, 358, 359. Huxley, T. H., on administrative nihil- ism, 3. Hypothecation, 456. Idealism, in American law, 27. Illinois, municipal debts, 242. Impeachment, of the President, 34 ; of President Johnson, 47. Impressment, 503, 504. Imprisonment for debt, 112. Incorporation, freedom of, for municipal corporations, 228, 229, 247-250; for quasi-public corporations, 276 ; for private corporations, 281 . Independence, effect of on status of the colonies, 263, 264. Indeterminate sentences, 372-374. Indiana Company, The, 270. Indians, treaties with by the colonies, 492, 493. INDEX 531 Indifidnal rights, enlargement of 3; set'urity for, 45, 46. Initiative, the, 46. Injunctions, 147 ; to prevent strikes, etc., 92, 110, 112, 113; to protect privacy, 96 ; against a trespass, 112. Innocence, presumption of, 363, 364. Insurance, chartered companies for, 275, 276 ; marine, admiralty jurisdiction over, 481, 482. Intendants, 234. International law defined, 491 ; in the colonial period, 491-494 ; in Europe at same period, 494, 495 ; beginnings in the U. S., 495 ; effect of natural tendencies, 496 ; part of the law of the laud, 495 ; our early treaties, 496- 499 ; Jefferson's views of our policy, 497 ; Franklin's, 498 ; free ships make free goods, 498 ; Declaration of Paris, 499 ; privateering, 499 ; contraband, 499 ; neutial rights, 500; our neutral- ity laws, 500-503 ; a free sea, 503 ; impressment of our seamen by Eng- land, 503 ; right of search and visit, 504, 505 ; suppression of slave trade, 504 ; free rivers, 505 ; sealing con- troversy, 506 ; the Monroe Doctrine, 506; indelible allegiance, 507-510; naturalization laws and treaties, 508, 509 ; laws of warfare, 510 ; doctrine of the continuous voyage, 510-513 ; General Order 100, Lieber's Code, 513, 514 ; the Sanitary Commission and the Ked Cross, 514 ; international arbitration, 514, 515 ; intervention, 515; our war with Spain, 515, 516; liter.iry history of, 516-518 ; Kent, 517; Wheaton, 517; T. D. Wool- sey, 517; Dana, 517; Halleck, Davis, Snow, 518; academic teach- ing of, 518 ; early in the U. S., 518- 520. Interpretation, of constitutions, 27 ; of wills, 168. Interstate commerce, 292, 293 ; corpora- tions, 279, 280. Intervention, 506, 515. Intestacy, 167. Inventions, by savages, 391. Iredell, Mr. Justice, 350. Jamestown, settlement, 209. Japan, corporations in, 282. Jefferson, Thomas, changes at William and Mary College, 1 7 ; views as to supremacy of courts, 24 ; conflict with Marshall, 46 ; instructions as to our foreign policy in 1784, 497, 498. Jekyll, Sir Joseph, 155. Jessel, Sir George, 148. Johnson, Andrew, 34, 47. Johnson, Sir William, 16, 492. Joint estates, in land, 59. Jointrstock company, early American, 268-272, 274, 275 ; early English, 275. Judges, gowns, 21 ; cannot make law, 148; but keep it in touch with society, 276, 277 ; early crown judges in Amer- ica, 356 ; English, 384. Judgments, are what, 7 ; of another State, 43, 44. Judicature Act, English, 144, 156, 317. Judicial power, 37, 38. procedure, early colonial, 13. decisions, have roots, 6 ; reported, 7. legislation, 148, 276-277. notice, 277, 320. Jurisdiction, of cause, 44 ; of copyright suits, 432. Jurisprudence, federal, 29, 30 ; Ameri- can, see American Law. Jury, trial by, anciently acted on their own personal knowledge, 321 ; right of trial by, 346 ; mode of criminal trial, 363 et seq. ; inroads on the old jury system, 382-384. Jiis in re, 457. Jns in rem, 455, 456. Ju.stice, natural, 45, 480. K Kent, Chancellor James, 516, 518, 519. Kentucky, early charters by, 310, 311. Kies, Mary, 419. King, of England, his powers, 9 ; land tenure under, 53 ; equitable powers, 117 ; charter grants by, 218 ; as head of church, 267. 532 INDEX King, in Council, colonial appeals to, 18, 40, 41, 264, 2C)5. King's College, 22. Kirby, Ephraim, 23. Kirby's lieports, 23, 84, 259. Labor, organized, 106 et seq. Laborers, Statute of, 108. Laches, in admiralty, 449. Lamarck, J. B. P. A., 398. Land bank, Massachusetts, 272. Land companies, 271, 275. Land laws, 48 et seq. ; early, 48 ; inflex- ibility, 49 ; English, 49 ; wills, 181. Land Transfer Act, 156. Law, the .supreme, 19 ; unconstitutional statutes, 23-25 ; reverence for, 26 ; effect on our literature, 26 ; natural, 45 ; distinguished from Equity, 116 ; special legislation, 247-250 ; the phi- losophy of society, 276 ; based on reason, 277 ; ex post facto, 374 ; to be suited to the people, 390. See Ameri- can Law. Law-books, early importations, 13, Law reports, historical value of, 6, 115 ; English, 6 ; beginnings in America, 22, 23 ; copyrighting, 433, 434. Lawson, John D., 385. Lawsuits, early American, 13. Lawyers, as students of jurisprudence, 7 ; early American, 13, 265 ; collegiate education, 16 ; English education, 17; effect of the Revolution on, 17, Leases, of land, 57 et seq. Lechford, Thomas, 14. Lecky, W. H. H., on change of popular beliefs, 2. Lectures, property right in, 426. Legacy, lapse of, 188. Legal education, early American, 16,17, 19, 20, 266. fiction, 277, n. profession, in. colonial days, 13, 14; after the Kevolution, 17. Legislation, in law reform, 116, 149; special, 247-250 ; consent of cities to, 251 ; judicial, 148, 276, 277. Legislative power, 37, 38. Legislatures, American, first, 209 ; ma- norial representation in, 207 ; univer- sity representation in, 22 ; character of action, 277. Lex talionis, 367. Libel, 92 ; in admiralty, 455-457. License, to enter on land, 58. Lieber, Erancis, 514, 519. Lien, maritime, 456, 457 ; priorities, 459-463 ; order of preference, 466 ; sale to satisfy, 467, 468. Life estates, 55. Light, rights to, 60. Limitations, Statute of, 75-77. Limited Liability Act, 474-477. Livingston, Hobert, manor of, 207. Local G(-)vernment Act, 250. London, 215-230. Loomis, Dwight, 226. Loughborough, Lord Chancellor, 263. Louisiana, civil law in, 52 ; parishes, 204 ; early municipalities, 217 ; muni- cipal finances, 244, 246 ; inroads on jury system in, 382. Lowlands, drain companies, 271. Ludlow, Roger, his code for Connec- ticut, 4, 15, 350, 352, 353 ; as a Com- missioner under the New England Confederation. 351 ; sutt against, 356. Lugo, G. C. di, 31. Lynching, 385, 388. Lyndhurst, Lord Chancellor, 505. M MaHy, Abb^ de, 30. Madison, James, on copyrights, 42,?. Magna Charta, 22. Maine, early charter.? in, 209, 210. Maine, Sir H. S., 66, 119, 277, n. Malice, 106 et seq. Malicious prosecution, 91. Man, Rights of, 4. Manhattan Bank, 305. Manors, defined, 206 ; early American, 206, 207. Mansfield, Lord, 315, n. Manufactures, early American, 297, n. Marcy, William L., 499. Sfare Lihernm, 503. Marine protest, 472. Marine suuvey, 472. Married women, property rights, 55,56; INDEX 533 contracts, 70, 71; torts, 93; separate estate, 150; wills, 184-186. Marshall, Julm, legal eJucation, 17; as Chief Justice, 25, 32; familiarity with Freuch, 33 ; conflict ^\•ith Jeffer- son, 46 ; views of our patent laws, 420, 421. Marvlaud, early colonial bar, 16; law reports, 16, 84 , devises in, 181 ; ma- norial courts, 206; early niuuicipali- ties, 216, 217 ; English decisions concerning charter, 263, 264 ; no colonial private incorporation, 307, n. ; early State charters, 307 ; banish- ment as a penalty, 375. Massac liusetts. Body of Liberties, 4, 14 ; (juo warranto to forfeit charter, 12; early lawyers in, 14 ; no equity courts, 18, 130, 131,136, 137 ; probate of wills, 174; early municipalities, 219- 221 ; general municipal incorporation Act, 228 ; quo warranto against, 262 ; scire facias against, 267 ; early incor- porations by, 266-269, 297-301 ; the witchcraft cases, 356, 357 ; grand juries in, 357, 358 ; Chief-Justice Hutchinson's charges, 358, 359 ; ha- beas corpus in, 360 ; colonj' patents for inventions, 392 ; State copyright, 423 ; early colonial diplomacy, 492, 493. Master and servant, 101 et seg. Maxims, of equity, 123 et seq., 145. Mayors of cities, 234-237. Merchants, customs of. 73. Memphis, dissolution of, 256. Michigan, indeterminate sentence law, 372-374. Mines, protection of, 99 ; early joint- stock companies to work, 268-271. Minors, conlracts of, 70. Missionary societies, 274. Mi.ssissippi, free navigation of, 505. Missouri, constitutional provisions as to cities, 251. Monopolies, 391, 392. Monroe Doctrine, 496, 506, 507. Montesquieu, influence in America, 20. Moore, John Ba3,sett, 515. More, Nicholas, 306, n. ; Sir Thomas, 124. Morse, telegraph patent, 404, 420. Mortgage, of lauds, equitable view of. 150, 161 ; English doctrine, 153-157 ; American doctrine, 157-161 ; fore- closure, 162, 163 ; form, 163, 164 ; by corporation, 294 ; of ship, 462. Mortmain, 196, 198. Mosaic code, adopted in Conn, for crimes, 352 ; in Mass., 359. Mozley, Canon, 398. Municipal corporations, by-laws, 37 ; names and number, 203-208 ; early in- corporations, 208-222 ; Paterson char- ter, 222, 223; census of 1900, 224; unincorporated towns, 224, 225 ; town theory of tlie oriijin of, Connecticut, 225-227 ; general incorporation laws, 228, 229, 247-250 ; freedom of the city, 229-234 ; mayors, 234-237 ; right to reside in, 231, or trade in, 232, of voting, 233 ; self-perpetuating muni- cipal governments, 238; American development of, 239 ; constitutional provisions, 240-253 ; financing, 241- 246 ; modern foreign legislation re- garding, 250 ; self-framed charters, 251 ; acceptance of legislation affect- ing, 252; obligation of contracts, 253, 254; vested rights, 253, 257 ; in prop- erty, 256-259 ; dissolution, 254-257, 289 ; litigation concerning, 259, 2C0 ; its gradual increase 260 ; early study of law of, 266 ; artificial persons, 266 ; the franchise for, 266 ; liability for acts of agents, 288 ; ultra vires con- tracts, 289 ; wrong done in performing governmental act, 482-484. Municipal Corporations Act, English of 1835, 238, 239, 250. Murder, appeal of, 84, 346, 348, 349. N Name, patenting a, 409 ; as a trade- mark, 440, 441. Natural justice, 45, 480. Naturalization, 507-509. Navigable waters, 453, 454. Negligence, 90, 100 et seq. ; contributory, in admir.alty, 455; exceptions in bills of lading, 477-479 ; of municipality, 482-484. Negotiable Instruments Law, 74, 75. Negotiable paper, 72-75. 534 INDEX Neutrality, belligerent's rights, 494 ; free ships, free goods, 494, 497-500. Neutrality statutes, .'500-502. New England, early cities, 216, 217; early criminal codes, 353-360. New London Trading Society, 272. New Hampshire, early incorporations in, 227, 296 ; theory of criminal punishments, 369. New Haven, 232, 261, 356. New Jersey, attempt to exclude English law-books, 1 ; Attorney-General's re- port on Established Church, 11 ; legal education in, 21 ; judges wore gowns, 21 ; first Constitution, 23 ; Holmes v. Walton, 24 ; Chancery courts, 136 ; early municipalities, 213 ; Hamilton's charter for Paterson, 222, 223, 304, 305; free cities and ports in, 230; appointment of city mayors, 234 ; copyright law, 423. New Orleans, 21 7, 235. New York, city of, early days, 208, 218 ; early charter, 210-213; made a free city, 230 ; right to trade in, 232, 233 ; freedom of the city, 233 ; mayors, 234, New York, State of, codification in, 4 ; colonial bar, 16; equity courts, 131, 132, 134 ; probate of wills, 174 ; char- itable bequests, 200; early cities in, 210-213 ; first general municipal in- corporaticm Act, 229 ; municipal fi- nances, 241-244; general church in- corporation Act, 247 ; permits special legislation for municipalitie.'!, 249 ; constitutional provisions as to cities, 251-253 ; early incorporations by, 303-305; reforms in pleading, 316; copyright law, 423. Newfoundland fishing treaties, 503. Newspapers copyrighted, 425, 429, 431. North Carolina, its colonial bar, 15; early municipalities, 216 ; early pri- vate corporations, 309. Nottingham, Earl of, 121 Nuisance, 98. o Obligations, of contract, 80-82, 253, 2,54. Offer, 71. Office, power of appointment, 38, 236 ; of removal, 47, 236 ; nature of ap- pointment, 81. Ohio Company, The, 270. Opinion, public, 390 ; when offered in evidence, 331. Ordeal, trial by, 346. Ordinance of 1787, 311. Pardon, conditional, 371, 372. Pardoning power, 370-372. Parent and child, 93 ; succession, 186. Paris, Declaration of, 499. Parish, in Louisiana, 204 ; early Ameri- can, 205 ; in Virginia, 239. Parliament, English, uncontrolled pow- ers of, 10 ; Acts as affecting colonies, 16 ; municipal representation in, 238. Parsons, Professor Theophilus, 76, 519. Partition of land, 59. Partnerships, early colonial, 268-271. Patapsco Iron Works Co., 270. Patents for invention, English origin, 391 ; early American monopolies, 392 ; State patents, 392 ; Acts of Congress concerning, 392, 393; what a patent gives, 393 ; what price is paid for it, 394 ; what invention is, 394, 397 ; novelty, 396, 398 ; patents prima facie evidence, 398 ; prior state of the art, 399, 407 ; mere mechanical skill, 400 ; double use, 400-402 ; aggregations, 402, 403; utility, 403, 404; patent for a principle, 404 ; infringements, 405, 406 ; primary patents, 406, 407 ; improvements, 407; secondary inven- tions, 408 ; claims of patents, 408 ; the file wrapper, 408 ; admissions therein, 409 ; abandonment, 409 ; name of article, 409; foreign, 410; contribu- tory infringement, 410 ; for processes, 411; for designs, 411; the Patent- Ofiice, 411; caveats, 411,412; compar- ison of the three great U. S. patent laws, 412, 413; their judicial interpre- tation, 412-414; evils in our system, 413, 414-417; the Bell Telephone cases, 416; the Circuit Courts of Ap- peal, 417; experts, 417, 418; patent laws and protective tariffs are yoke- INDEX 535 fellows, 418,419 ; women as inventors, 419; Wasliingtou's recommendatiou of patent laws, 420; their results, 420,421. Paterson, city of, charter, 222, 304, 305. Paterson, Gov. William, 223. Pedigrees, declarations as to, 324. Penalties, for crime, 367 et seq. ; grad- ing to offence,, 375 ; inequalities, 377, 378 ; whipping, 378, 380. Peun, Governor, 214, 305, n. Peuusylvauia, Equity Courts, 133, 138 ; law of wills, 173, 200; early munici- palities, 214, 215; general incorpora- tion laws, 247 ; early private corpora- tions, 269, 270, 273, 305, 306 ; capital punishment in, 361. Pennsylvania, University of, instruction in international law in, 520. People, source of the State, 228. Person, artificial, 266, 283, 295, 296. Perth Amboy, charter, 233. Phelps, Professor Edward J., 33. Philadelphia, early days, 208, 218 ; first charter, 208, 214, 233 ; appointment of mayor, 234, 235 ; originally a close corporation, 238. Pictures, copyrighting, 424, 426. Pilots, 470, 471. Plays, copyrighting, 424, 426. Pleading, in civil actions, codes of, 5 ; in the American colonies, 313 ; early history in the world, 314 ; at Rome, 314; in England, 314, 315 ; in equi- table actions, 314 ; artificial forms, 315; distinction between Judges at Law and those in Equity, 315 ; con- solidation in this country, 316; the reformed procedure, 316; English Judicature Act, 317; in the U. S. Courts, 318. Police power, 41, 42, 82. Pollock, Sir Frederick, 68, 86, 91. Pomeroy, J. N., 133, 141, 157. Potomac Company, The, 270. Powers, execution of, 285 ; implied in charters, 286. Prsetor, 118, 119, 266. Precincts, defined, 206. Prescription, title by, 60. President of the United States, the ex- ecutive power, 37, 38 ; its growth, 40, Primogeniture, 186. Princeton, instruction in international law in, 519. Principio Company, The, 271. Privateering, 499. Prizes, colonial, 493 ; rules as to con- denmation, 484 ; continuous voyage, 485-487 ; blockades, 487 ; exemptions, 487, 488. Procedure, early le