SCHOOL OF 
 
 COMPARATiVE JURISPRUDENCE AND 
 DiPLOMACY. 
 
 SYLLABUS OF 
 
 LECTURES ON COMPARATiVE 
 JURISPRUDENCE, 
 
 WILLIAM WIRT HOWE, LL. D. 
 
 LUMBiAN UNIVERSITY, 
 
 T8S9-1800. 
 
 
 
■::'^Ti«t^T«r<: 
 
 Cornell University Law Library. 
 
 THE GIFT OF 
 LILLIAN HUFFCUT 
 
 BINGHAMTON. N. Y. 
 
 November 27, 1915 
 
 9181 
 
'^'"'I'liiSiiiiiiiiSSfflii?.'!!!!'.'!'* Jurisprudence, syn 
 
 3 1924 021 934 850 
 
 Compliments of 
 
 WILLIAM WIRT HOWE, 
 
 Hennen Building, 
 
 New Orleans, La. 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021934850 
 
THE COLUMBIAN UNIVERSITY, 
 WASHINGTON, D. C. 
 
 SCHOOL OF COMPARATIVE JURISPRUDENCE 
 AND DIPLOMACY. 
 
 SECOND YEAR CLASS. 
 \399-i900. 
 
 COURSE IN COMPARATIVE JURISPRUDENCE. 
 
 BY 
 
 WILLIAM WIRT J( ^ HOWE,J^ L. D., 
 
 or THE NEW ORLEANS BAR. 
 
 SYNOPSIS. 
 
 Copyright, 1899, 
 
 By The Columbian University, 
 
 Washington, D. C. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 LECTURE I. 
 
 Uses and Methods of the Study of Comparative Jurispru- 
 dence and Legal History. — Law, a science in its tlieory and an 
 art in its application, and the more exact our knowledge of it 
 is as a science the more precise and eflfective will be its applica- 
 tion as an art. Jurisprudence has been developed from archaic 
 times by a very slow but distinctly continuous growth. We 
 need not undervalue the labors of analytical jurists, but the 
 fact remains that the historical method is indispensable and 
 becomes the more so as modern research is extended into the 
 origin of all kinds of human life and human institutions. 
 Reference to the views of Professor Paulsen, of Berlin, that law 
 is not an invention of jurists and legislators, but has grown up 
 with the social life of the people aa the external form of their 
 union. Originally it is custom ; then at a certain stage of de- 
 velopment it is separated from the collection of universal oblig- 
 atory forms of life and action, and becomes a separate field of 
 social compulsion. From that stage on it becomes possibly an 
 object of conscious consideration, and may bo even expressed 
 in written statutes and codes and come to look like an artificial 
 product; but whoever considers the subject historically will 
 easily observe that the legal system as a whole is not made. 
 All that is done is to incorporate in a system what has been 
 current and traditional. Occasionally slight adaptations to the 
 changing life and conditions of the people are made. We may 
 say of the legal codes, then, they are not made; they grow. 
 Primitive people did not meet in convention and say, " Let us 
 make a constitution, a civil code, and a code of practice." 
 Such things may be said sometimes today in communities which 
 have behind them thousands of years of legal experience; but 
 even then they can make very little that is new, but generally 
 rearrange and adapt what is immemorially old. If we wish to 
 understand their work fully we must study its sources. As a 
 matter of psychology merely, the work of comparing laws and 
 institutions is very necessary, for the only way to perceive any 
 

 LECTUKKS QN COMPARATIVE JDRISPKDDENCEi 
 
 object clearly is to compare it with something else. TJje \tei4^if: ' 
 and more exact a science, the finer and more precise wili^beffee-' 
 application of it in any art or profession. Emerson said that 
 he that will do anything well must come to it from a higher 
 ground, meaning, presumably, that it is from the lofty plane of 
 thoroivgh culture that we may most easily view our work and 
 most successfully lay it out and perform it. Views of Sir 
 William Markby in his Elements of Law. He points out 
 that most of the law of England, for example, lies outside 
 of the councils of sovereigns and the deliberations of the 
 legislature, and is mostly to be found in the law reports 
 and in a few leading treatises. This great mass of law consists 
 of certain principles, expressed for the most part in technical 
 terms. These terms are the common property of what we call 
 the Western Nations of Europe, and of their descendants scat- 
 tered throughout the world. They have spread into Strange 
 countries. The French Civil Code, for example, has been re- 
 sorted to in Russia, Turkey, and Japan as a foundation of prin- 
 ciples. Almost every topic of jurisprudence has been discussed 
 by the lawyers of every country in Europe and in the colonies 
 which have swarmed through other parts of the world; hence 
 Sir William Markby concludes that weseek in thelaw and litera- 
 ture of other countries enlightenment as to the law of our own, 
 and with this aid we endeavor to acquire and to express our 
 legal pi'inciples and to define accurately our technical terms, and 
 it is such a method of research that elevates law into a science. 
 Practicing lawyers may be made without such studies, but such 
 jurists as Hale, Mansfield, and Kent attained their special emi- 
 nence in good part, at least, because they were eager students 
 of legal history and diligent to trace the origin of principles to 
 their higher sources. Hale was a devoted student of the Civil 
 Law. The range of studies of Lord Mansfield was very wide 
 and gave an abiding interest to his opinions. An example found 
 in Moses vs. McFarlane, 2 Burr., 10, involving a question of ob- 
 ligations arising quasi ex contractu. The Commentaries of Chan- 
 cellor Kent exhibit the same results of broad study. Further 
 value of such studies to the professional lawyer is pointed out 
 by Savigny in the fact that they lift his profession above the 
 level of a mere trade. Such studies may also teach the Ameri- 
 can the valuable lesson of modesty and remind him that many 
 
4 LECTURES ON COMPARATIVE JUBISPKUDENCE. 
 
 ideas that have been claimed as indigenous products of our native 
 genius have really come down to us from ancient sources. Prac- 
 tical value of these studies is also found in the fact that we are 
 acquiring new territories with vast populations whose laws and 
 jurisprudence we ought to understand, as will be shown in a 
 future lecture; and generally in the fact that we are being 
 brought more and more in contact with trade and commerce 
 throughout the world and in competition with the highly trained 
 diplomatic and consular agents of the leading nations. 
 
 Methodsof Study.— Students should have a general knowledge 
 of history. Progress of humanity consists largely in the storing 
 up of experience and a transmission of it to successive genera- 
 tions, and the human intellect may be 'defined as the faculty of 
 profiting by experience, both of the past and the present. We 
 may begin with the law of primitive people and examine it, 
 according to the ancient definition of Gains, as it concerns per- 
 sons, property, and procedure. We may eliminate that period 
 when possibly mankind existed in mere hordes ; and further 
 eliminate by confining ourselves to the two races with whicli 
 we are connected, and which for convenience may be called the 
 Aryan and the Semitic. In studying the law of persons we may 
 begin with the family as the unit, and note the resemblances 
 which havebeendiscovered in this primitive institution, whether 
 in India, Egypt, Palestine, Greece, Rome, Germany, Gaul, Iberia, 
 Britain, or Ireland ; the influence on legal concepts of the wor- 
 ship of ancestors around the sacred fire ; the oflfiee of the house 
 father as teacher, priest, and ruler ; the advisory family meet- 
 ing; the theory of kinship ; and the rules of adoption by which 
 the agnatic family might be preserved for the celebration of its 
 religious ceremonies and the administration of its secular affairs. 
 We may then trace the extension of the family into the gens 
 and the tribes, the formation of the village community, and 
 the final establishment of the ancient city as a type of govern- 
 ment, and the various personal relations resultingfrom such de- 
 velopment. The law of property may be pursued in the same 
 way, noting the archaic concepts on this subject as to the prop- 
 erty of the family, of the gens, of the community, and of the 
 city ; the growth of rules in regard f o individual property, in 
 regard to succession, whether intestate or testamentary, and, 
 finally, the development of the law of obligations, whether aris- 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 5 
 
 ing from contract or tort. The development of procedure may 
 be >jtraced in the same general way from primitive times— the 
 blood-feud, the compensation by money for injuries, the arbitra- 
 tion before the elders ; the technical actions before a magistrate, 
 whether by wager or other device ; the growth of the formulary 
 procedure ; the employment of referees and jurors, and, finally, 
 the practice whicii underlies all our methodsof pleading, namely, 
 a written petition or complaint of the plaintiff, and the excep- 
 tion or answer of the defendant. Such a course is very element- 
 ary, but it should include at least a statement of the rules upon 
 these subjects in India, Egypt, Palestine, and Greece, so far as 
 they can be formulated with some precision, and in this way 
 the student may be brought down in the natural order of time 
 to a study of the elements of Boman law, which, to a greater 
 or less extent, underlie the jurisprudence of all modern civilized 
 nations. This may be followed by a consideration of the devel- 
 opment of law in mediseval Europe, and the formation of the 
 diflerent systems which prevail in the nations of modern Europe, 
 and which have been transmitted to America. In this connec- 
 tion it would be useful to glance at least at the modern codes of 
 law, from that of Sweden, in 1734, down to that of Germany, 
 which is to take effect January 1, 1900. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 LECTURE II. 
 Primitive Law. 
 
 We do not enter into the disputes of ethnologists in regard to 
 the origin of races or the special scientific names wliich should 
 be given to them, or whether in some cases the apparent differ- 
 ence in lineage may be 6nly a difference in language. For this 
 course we accept the usual terminology by which the two races 
 we are considering are called Aryan or Indo-Germanie, or Indo- 
 European on the one hand, and Shemitic or Semitic on the 
 other. Originally the homes of these two races were probably 
 not far apart, and they probably all came from the table-lands 
 of Asia. Aryans went southward into India and northward 
 and westward into Europe, where it is generally believed they 
 became Greeks, Italians, Romans, Iberians, Celts, Germans, 
 Scandinavians, Britons, and Slavonic people. S'emitic people, 
 going to the west and southwest, became known as Chaldeans, 
 Arabians, Egyptians, Hebrews, PhcEuicians, and the like. Some 
 diffei'ences between these two races, with much resemblance in 
 primitive customs, and tendencies to assimilate by contact with 
 each other in war and piracy," as well as in trade and commerce. 
 In primitive times religion and law were not differentiated. 
 Going back to some period when there was nothing like what 
 we call the State, and prior to the time when the special sanc- 
 tion of what we call law today w^ere known, we find a large 
 amount of customary observance derived from the worship of 
 ancestors. Departed ancestors were supposed to still exist as 
 members of the family, near or about their tombs, which, as Gains 
 says, were in Roman law still considered as religious places, 
 dedicated to the gods of the Under World. Question consid- 
 ered by Louisiana court as late as 1847, whether this idea of 
 Roman law still prevailed in Louisiana, it being held that it had 
 become extinct. Custom of the sacred fire on the dcijnestic 
 hearth, which was not a mere convenience, but an object of 
 reverence, and the common meal in the presence of this do- 
 mestic altar became sacramental in its character. Household 
 gods, represented by small images, became a very important 
 
LECTURES ON COMPARATIVE JUItlSPRUDENGE. / 
 
 part of the family possessions. They are mentioned in the boolc 
 of Genesis and in other parts of the Old Testament, and men- 
 tioned by Horace in his ode to Phidyle. We find them endur- 
 ing as objects of reverence down to niediseval times, in Europe 
 as well as Asia. They became tlie Little People, the Brownies 
 the House Spii'its, the Hob-goblins; frowned upon by the 
 Church, a good deal reduced in circumstances, but still cher- 
 ished and believed to be ready to help those who were l?ind to 
 thein. Some have thouglit that All Saints' Day was founded 
 upon this idea and allowed by the (Jliurch as a kind of compro- 
 mise. (See Hearn's Aryan Household, page 62.) 
 
 The primitive I'aces with whom we are dealing had, as a rule, 
 the institution we Isnowas the agnatic family, a group in which 
 kinsliip was recltoned through the male line. At the head of 
 this family was the father, with that paternal power wliich is 
 such a prominent feature in ancient law. The father of the 
 family, in relation to the group, was prophet, priest, and king. 
 As prophet, he was a teacher, and handed down the experience 
 of the past; as priest, he conducted the family worship; as 
 king, he was the sovereign of the group— a fact that explains at 
 once the paternal power which sometimes appears so strange. 
 To understand the essentials of the primitive family, its organism 
 as a kind of corporate body must be remembered. The house 
 father was indeed head and master, and as such held a kind of 
 office, but all the meml)ers were interested and had their rights. 
 The family council or family meeting was probably based on 
 the idea that the family was a kind of body corporate, and that 
 in some cases the members or corporators should be consulted. 
 The family meeting still exists in almost all civil-law countries 
 and in our new possessions, and is a survival of what was found 
 among many primitive people. As a rule, the number of mem- 
 bers is the same as in primitive times — tliat is, five — perhaps 
 suggested by the Ave fingers of the hand. We are told that 
 family councils existed among primitive people in India, Greece, 
 Gaul, and Ireland. Some have thought that the Reeve and 
 four men, or five in all, who governed the early English town- 
 ship, was a body of this sort. The family meeting or family 
 council plays a great part in Roman history. In early times of 
 hardship and famine, when the custom of exposing children 
 prevailed, tiie rule was that a father could not thus expose his 
 
8 DJCTUKES ON COMPARATIVE JURISPRUDENCE. 
 
 son or eldest daughter except on the advice of a family meeting. 
 So also we see why the paternal power of life and death, which 
 was considered by Gains as something remarkable, was logical 
 enough in its origin. It was the sovereignty over the family 
 gi-oup relating back to a time wiien this group was a little state, 
 and the power of life and death resided in the sovereign head, 
 the paier familids. Such a power must reside somewhere. It ia 
 not likely that it was often exercised in any cruel way. We see 
 also the meaning of adoption, which played so great a part in 
 law in the agnatic family. Descent and kinship being reckoned 
 through the male line, if there was no son of the family one was 
 adopted with suitable ceremony, and the agnatic family pre- 
 served both for sacred rites and secular administration. From 
 the concept of the corporate nature of the family came the idea 
 not only of the devolution of property in case of intestacy, but 
 the rule, which prevails today in many civilized countries, of 
 forced heirship, whereby the head of the family is prohibited 
 from leaving away from it more than a limited portion of the 
 estate, called the disposable portion. 
 
 The primitive family included araoug its members such de- 
 pendents and slaves as belonged to it, and who were sometimes 
 very numerous, and probably the stranger within its gates for 
 the time being, and it is quite likely that the relation of patron 
 and client had its origin under such circumstances. As th,e 
 family multiplied and was subdivided into collateral stocks, 
 there came to be formed what the more critical modern writers 
 called the gens, a group of families claiming agnatic consan- 
 guinity. The word gens is perhaps the most accurate, some 
 writers, however, using the word clan, and others the word kin. 
 The gens in turn had its recognized leadership, its common 
 worship of some hero who was claimed as ancestral founder, its 
 special funeral rites, its jurisdiction over common property and 
 common concerns and morals. Heads of families in each gens 
 known as Gentiles. It ia said that Patrician Rome in its earliest 
 days was a collection of gentes, organized into three tribes. 
 Some have thought these gentes were like what we call great 
 houses in England— the House of Cavendish, the House of 
 Howard, or the House of Percy. Next in order of develop- 
 ment and regimentation came the village community, and next 
 the ancient city, formed by a union of smaller bodies. Sir H. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 9 
 
 S. Maine claims that the city of Rome was formed by the union 
 of the village comrnuuities that had grown up around the Tibei", 
 communities resembling those which existed in India, Greece, 
 Germany, and Britain, and still survive in some places down to 
 the present day. The ancient city was the highest develop- 
 ment of government in ancient times, and had its common 
 worship and its sacred hearth in prytaneum or vestal temple. 
 
 Other primitive ideas of the law of persons, including in th6 
 earliest times some customary rules concerning husband and 
 wife, parent and child, guardian and ward, master and servant, 
 will be noticed hereafter. 
 
 Primitive Ideas of Property. — Family estate, lands, slaves, 
 and domestic anirnals, objects of property considered essential 
 to family life, called in early Roman law res manapi, and only 
 acquired and alienated by various ceremonies which seem very 
 technical but had at least this meaning, that the property be- 
 longed to the family, and many persons were interested in it, 
 either immediately or remotely. The word family in ancient 
 times meant more in a juristic sense than it does today. It sig- 
 nified an aggregation of persons, duties, rights, and property, 
 at the head of which was the house father, who was the only 
 person sui juris, all the rest being under his power, tutelage-, or 
 guardianship. Whatever was acquired was acquired for him 
 in virtue of his office, not strictly in his piivate, but in his rep- 
 resentative, capacity. The gens might also have common prop- 
 erty and so eventually might the city. With the city came the 
 concept of the difference between public and private property 
 and between property in commerce and property out of com- 
 merce. One of the most common ways of acquiring or losing 
 the dominion over property is by the effect of obligations. In 
 primitive times we find the beginning of obligations both in con- 
 tracts and in torts. The contract of sale and the contract of ex- 
 change make their appearance, and we also find contracts of 
 pledge, hypothecation, and deposit, and now and then a glimpse 
 of rules in regard to the duties of carriers. The Greeks were a 
 very busy, commercial people. Many words we use today in 
 connection with pledges and mortgages are derived from the 
 Greek language. 
 
 Ideas of Primitive Procedure.— It was difficult for primitive 
 people to attain to the' conception of some outside power that 
 
10 LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 might be appealed to in order to arbitrate a dispute. In the 
 family the house-father exercised a large and useful jurisdiction. 
 In the village community the elders would do the same. Soon 
 there came to be some development of criminal justice. Com- 
 position of personal injuries by payment of money. Trial 
 scene delineated on the shield of Achilles, as described in the 
 Iliad, resembling the early Roman action called sacramerdum . 
 Primitive process by which plaintiff seized the defendant and 
 took him before the magistrate, as mentioned in the Twelve 
 Tables and alluded to in the Sermon on the Mount, a method 
 which probably was known among many primitive people. 
 Early procedure very technical. Examples from the early law 
 of Rome and the early law of Iceland. Gradual reform of pro- 
 cedure in the direction of simplicity. 
 
 One kind of line may be drawn between ancient and modern 
 times. In ancient times what was called religion, with its cere- 
 riionial observances; was hardly distinguished from what we 
 shonld call law. It might be said that modern times begin with 
 a full recognition of the distinction between the jurisdiction of 
 God and the jurisdiction of Gfesar; with a full reception of the 
 doctrine that the Kingdom of God is not of this world, and that 
 the power of the State is to be confined to the plane of what we 
 know as public and private law. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 11 
 
 LECTURE III. 
 Hindu Law. 
 
 The word India in classical times referred mainly to the val- 
 ley of the Indus and its tributary streams. In this lectnre we 
 consider chiefly the early law of the territory lying north of a 
 line drawn from the mouth of the Indus to the mouth of the 
 ■ Ganges, Indus meaning " a river" and Hindus the " river peo- 
 ple." This territory was conquered perhaps 2,000 years before 
 our era by a northern race descending from central Asia through 
 the mountain passes, pushing the savage races before them. 
 Religion and law not being clearly distinguished, mention 
 should be made of the successive waves of religious customs, 
 opinions, or enthusiasm that rolled over India, namely, Brah- 
 manism, at once a system of religion, philosophy, and law ; 
 Buddhism, a system of morality, and finally Mohammedanism. 
 The influence of the last was rather political than legal It may 
 be said in general terms that the science of Hindu law is found 
 chiefly in what are called the Brahmin Codes, of which we may 
 refer to (1) the^^jitr-as, written in prose; (2) the Institutes of 
 Manu, writtenin verse about the fifth century B. C. ; (3) the 
 code called Yajnavalkia, written in verse about the second cen- 
 tury of our era, and (4) the Institutes of Narada, also in verse 
 and belonginjg to a later period. Reference to English transla- 
 tions of the mcred books of the East made under the direction 
 of Prof. MaK Muller, and to " Hindu Law and Usage," by 
 John D. May^. 
 
 Persons in Hindu Law.^ — Institution of the four castes repre- 
 senting at once re^^igious hierarchy and military conquest. Pass- 
 ing next to the fandily, we find the same ideas which descended 
 into Asia Minor and Europe. The Hindu family a unit of civic 
 and governmental, as well as domestic, life ; a body or group 
 with a directorate, a common property, and even a kind of ter- 
 ritorial jurisdiction. Legitimate marriage was monogamous. 
 The law declared, therefore, that the perfect man from this 
 point of view consisted of himself, his wife, and his son. There 
 could be but one legitimate wife, and a son, who was to perpet- 
 
12 LECTUKKS ON COMPARATIVE JUKISPBUDENCE. 
 
 uate the family ceremonies and eventually to administer the 
 family government and property, must also be legitimate. The 
 wife as house-mother was the subject of much respect. Manu 
 sings her praises and seems to lay down the doctrine that it is 
 only by maintaining the family in its integrity that any of its 
 m.embers can attain immortality. It must not be allowed to 
 fail, lest those here present and those who had gone before 
 should alike miss the benefit of this associated life. Hence the 
 desire to have a legitimate son who could maintain the institu- 
 tion and its work as a matt-er of worship, government, and ad- 
 ministration, and hence three methods not unknown among 
 other branches of the race of perpetuating the family in case 
 the house-mother was so unfortunate as to have no son: (1) the 
 substitution of a relative of the husband ; (2) the repudiation 
 of the wife and the marriage of the husband to another woman, 
 as in the case of Napoleon and Josephine, and (3) the adoption 
 of a son, the elaborate details in regard to which indicate its 
 importance and perhaps its frequency. The institution of Levi- 
 ration, well known in India, being the same alluded to in the 
 gospel of Mark, 12: 19, in the problem propounded to Jesus by 
 the Sadduoees. If the husband died leaving no son, the widow 
 would marry his brother, and in the problem referred to the 
 woman had thus married seven brothers in successioJi. The 
 paternal power existed in a large wajH^TWl^Pli^a^v, as in al- 
 most all systems among Aryan and Semitic people^ilid embraced 
 religious supremacy and governmental control iif the family 
 jurisdiction. The family was agnatic, being I'eckoned through 
 the male line. The institution known as Novitiate sprang from 
 the relation of teacher and disciple, so intimate' among early 
 people and so notable in Palestine and Greece. A nb^ice placed 
 under the instruction of a teacher might become like a ■son, and 
 under some circumstances become the teacher's heir, tDnd the 
 teacher might under some circumstances inherit from the dis- 
 ciple. The tutorship or guardianship of minors was fully devel- 
 oped in early India. As a rule, the age of sixteen was the age 
 of majority, and up to that time minors were under the guar- 
 dianship of their nearest male relative. It is said that wills and 
 testaments were unknown among these primitive people (Da- 
 reste, page 74). It is also said that there was no word in Sanscrit 
 corresponding to the idea of a will and testament (Eschbach 
 
.LECTURES ON COMPARATIVE JURISPRUDENCE. 13 
 
 page 605); The reason qf this may be found in the charaeterof 
 the family as quasircorporate, and the fact that its heirs, whether 
 by birth or adoption, were well known; 
 
 The custom of adoption, when necessary, amounted to the 
 institution of an heir. The estate, as a rule, would be entirely 
 a tangible one, havhig no incorporeal property or choses in action 
 and requiring no administration. If wills were unknown, it 
 was. because they were not required. When the house-father 
 passed away his sons succeeded to the estate, and to all its duties 
 and liabilities, religious or secular, just as in Rome and in modern 
 civil-law countries when heirs accept the succession of a deceased 
 person pure and simple, without the comparatively modern 
 protection known as the benefit of inventory, they become liable 
 for all its debts, no matter how large the debts and how small 
 the assets, if there were more than one son, the elder received 
 the larger share of the estate, the rule being the same referred 
 to in the story about Esau's birthright. Sometimes the house- 
 father would divide the estate before his death, and, as it were, 
 abdicate his office in whole or in part. A notice of this custom, 
 which prevailed elsewhere, is found in the parable of the Prod- 
 igal Son. The Hindu wife might have a kind of separate or 
 •paraphernal pi-operty called stridhana, consisting of the gifts 
 made to her at the time of the marriage' and which were often 
 very large. The order of succession to estates of deceased per- 
 sons in early India is strikingly like that of early Rome, being 
 •first to son or sons, then to grandson or grandeons, then to ag- 
 natic collaterals, then to what were called Gentiles in Roman 
 ■law, who claimed descent from the common ancestor. After 
 -this we find the surviving wife as a sort of irregular heir, and 
 finally escheat to the king. It may be said that juridical per- 
 sons or corporations and the binding force of their statutes or 
 by-laws were recognized in Hindu law, the principal ones being 
 village communities, guilds of artisans, and societies of trades 
 people. 
 
 Hindu Law of Property. — Brahmin codes in this respect 
 quites precise and scientific. It was said that one became owner 
 or proprietor by succession, by purchase, by partition, by seiz* 
 ure, and by finding. To these methods were sometimes added 
 the following : By gift to a Brahmin, by conquest by one of the 
 military class, and by the labor of the two lower castes. Title 
 
14 LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 might also be acquired by prescription of ten years if the true 
 owner stood by and made no objection, unless such true owner 
 was a minor or an imbecile. We also find a titld by prescrip- 
 tion of twenty years, and also the rule that where possession 
 has lasted for three consecutive generations the fourth possessor 
 is reputed to be the owner, even without any written title. 
 
 Many of the obligations by the foi-oe of which we acquire or 
 lose dominion over property are found in early Hindu law. 
 
 Pledges of personal properties were common, and in early 
 times at least the pledge would be forfeited to the pledgee if the 
 debt were not paid. The pledge of real estate, called in modern 
 civil law antichresis, was also known, but the property Was not 
 ferfeited to the pledgee by non-payment of the debt, but must 
 be sold by a pi'ocess something like foreclosure. Sales of per- 
 sonal property had some familiar features. As a rule, a just title 
 would prevail over a mere possession, especially when the ob- 
 ject had been stolen. We see a glimpse of the English rule of 
 Market Overt, for we are told that possession of personal prop- 
 erty was equivalent to a title when it concerned a movable bought 
 in market before witnesses. Rules are also found as to partner- 
 ships; the letting and hiring, whether of property or labor; 
 the duties of depositaries of all kinds, and the penalties de- 
 nounced against unfaithful bailees. Carriers by water were 
 held responsible for the loss of goods loaded on their ships and 
 lost or injured by their fault. Probably, as in the modern civil 
 law, the burden' was on the carrier to prove that he was with- 
 out fault. Rules are also found respecting res adjudicata. A 
 dispute finally settled in court is not to be reopened. A judg- 
 ment, however, might be annulled by proper pi-oceedings, prob- 
 ably for fraud and possibly for want of jurisdiction. 
 
 Procedure began in India, as among other primitive people, 
 with something like criminal process, and was slowly extended 
 to civil matters. We notice a proceeding for the collection of 
 a debt like that seen in early Rome and early Judea. The 
 plaintiff was seized by the defendant and taken bodily before 
 the magistrate. ' ' Sitting Dharna " was a curious procedure by 
 a creditor which is said to have been practiced in ancient Ire- 
 land. The creditor sat on the threshold of the debtor's house 
 and there fasted until the debt was paid. We are told that by 
 the tim,e of the Institutes of Manu there were eighteen different 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 15 
 
 kinds of actions, either of contract or tort, one of which resem- 
 bled the lawsuit depicted on the shield of Achilles and the sac- 
 ramentum of Roman law. Procedure became more scientific ; 
 written statements or pleadings were introduced ; ample notice 
 given to defendant, and proof made by witnesses or, if neces- 
 sary, by the oath of the parties. We find actions of partition 
 and actions of boundary. We may also notice something like 
 the public or authentic acts which are passed before notaries in 
 civil-law countries. In India these were drawn up by a scribe 
 and signed by the parties, the witnesses, and the scribe him- 
 self. 
 
 Courts in India at the time of the Institutes of Narada were 
 the family council, the council of guilds of artisans, the councils 
 or tribunals of village communities, the superior tribunals ap- 
 pointed by the king, and finally the king himself, to whom, as 
 to a Roman emperor, there might be a final appeal. 
 
 The English government, through the East India Company, 
 or of late acting directly, has made some changes in the law of 
 India, more especially in the matter of the organization of 
 courts and in procedure, evidence, and crijninal law, but the 
 customar3' law of the country, its true common law, has been 
 largely respected and remains, and it is still necessary for the 
 courts in India to refer to the ancient Brahmin codes above 
 mentioned. These codes are still interesting also because they 
 carry us back to the sources of a civilization which is to some 
 extent the source of our own. 
 
 LECTURE IV. 
 
 Analysis and review of the preceding lectures, and discussions 
 and questions by the class. 
 
16 LECTURKS ON COMPARATIVE JUKISPRUDENCE. 
 
 LECTURE V. 
 
 Law of Anciknt Egypt. 
 
 liemjirk of Walter Pater that Egypt is " that half-known im- 
 memorial birthplace of all wonderful things.'' It was open to 
 Greek visitors quite freely about the middle of the 7th century 
 B. C, and they saw and learned many things: Long before 
 that time Egypt appears as a society governed by a monarchy 
 which rested on a system of caste like that of India. It is not 
 known whether Egypt derived her institutions from India or 
 India from Egypt. Perhaps in travel and trade they inter- 
 "changed ideas. 
 
 Taking up the question of personal relations, we find in Egypt 
 the patriarchal family. The house-father is the chief, and the 
 paternal power unquestioned in its proper sphere, though tem- 
 pered by an early civilization and the development of larger 
 forms of social organization and compulsion. The house-mother 
 is an important figure. Marriage appears as mainly a civil con- 
 tract between two persons, stipulating in full liberty of choice 
 and agreement. The woman contracts in her own name, and 
 the future husband agrees to treat her as lawful wife, gives her 
 earnest-money, and stipulates the amount of her allowance for 
 dress and domestic expenses. If she has propertj' of her own 
 it remains her separate property, or, as civilians say, her para- 
 phernal property, and in order better to secure it in case of the 
 insolvency of the husbwd, there is a mortgage or lien for its 
 inventoried value on the property of the husband, present and 
 future, resembling that we find in modern civil-law countries — 
 say in our new possessions. We are told that in dotal contracts 
 passed between private persons it was always stipulated that 
 the supremacy over the man should belong to the woman, the 
 husband engaging to obey the wife. This meant probably in 
 matters of the administration of the dowry intended to support 
 the household expenses. 
 
 The respect paid by Egyptians to lawful marriage in early 
 times may be illustrated by the story of Pharaoh related in the 
 book of Genesis, chap. 12, v. 14-20, where Pharaoh restored 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 17 
 
 Sarai to Abram as soon as he discovered that she was Abram's 
 wife. There is some evidence that the community of acquests 
 and gains between married people was known in early Egypt, 
 and existed not, however, as the necessary result of the mar- 
 riage, but where it had been established by the marriage con- 
 tract. It ia possible that this idea may have come to Gaul and 
 Spain, and so to America, from Egypt through Phoenician chan- 
 nels. Leviration, referred to as existing in Hindu law, also 
 existed in Egypt. It is said that in earlier times the w'ife in 
 Egypt also had the same right to put away or divorce her hus- 
 band that he had to divorce lier. Adoption was practiced in 
 order to perpetuate the family worship and family estate, the 
 adopted person becoming a lawful heir. Slavery also largely 
 existed in ancient Egypt as a personal relation. 
 
 Passing on to matters of Property and Obligations, the early 
 law of Egypt resembled that of other primitive people in the 
 same part of the world. Some diflferences indicate a more 
 advanced civilization. In succession to the property of de- 
 ceased persons the children of the marriage seeiii to have suc- 
 ceeded in some way without distinction of sex. Marriage con- 
 tracts in some instances would provide for this. At the same 
 time we find that custom, as in other Oriental countries, gave the 
 eldest son a larger share, which may have been a sort of in- 
 demnity based upon the fact that he would succeed to the 
 headship of the family, would represent and cafe for the estate 
 so far as it remained undivided, and would have the responsi- 
 bility eventually of dividing and delivering it to the heirs. 
 
 Sales, at least of lands, were made in early times with many 
 formalities, embracing three successive stages: (I) An agree- 
 ment of sale, describing the property and agreeingto transfer the 
 written title and to warrant against eviction ; (2) a declaration 
 of sale of a kind of. religious character, in which the transfer, 
 and probably the title, were aflBrmed by a solemn path, and (3) 
 a public act of transfer before a magistrate, in which the whole 
 iliatter was completed by formal delivery and put on record. 
 The religious ceremony fell into disuse, but the other two re- 
 main. There do not seem to have been any sales of land, at 
 least, on credit ; but the same results were reached by making 
 an absolute sale by one document, and then by another docu- 
 
18 LECTURKS ON COMPARATIVE JDEISPRUDKNCE. 
 
 ment making a loan by the vendor to the purchaser of the credit 
 portion of the price. 
 
 Pledges and mortgages were known as security for debt, and 
 there appears to have been a custom of laising money by a sale 
 of property with the right of redemption. Loans were made 
 either of money or of various kinds of grain, and rates of in- 
 terest regulated by law. The establishment of Alexandria 
 under the Macedonian conquest stimulated international com- 
 merce ; Greek notaries were well known in that city, and the 
 business of drawing up written contracts of various kinds was 
 largely developed. 
 
 Coming to procedure, tlie supreme court was composed of one 
 president and thirty judges, selected from the cities of Heli- 
 opolis, Memphis, and Thebes. Its jurisdiction wa-s both civil 
 and criminal. It seems that cases were submitted, as we might 
 Siiy, on written briefs. No opinion was pronounced, but the 
 president of a court delivered the judgment by turning the image 
 of ti'uth toward the successful party. Inferior tribunals existed 
 in each province, and below them came domestic tribunals of 
 the family group or groups, which in early times would prob- 
 ably dispose of many controversies. Questions of commercial 
 law became abundant as commerce increased, and also questions 
 of private international law. Dareste, page 14, describes an an- 
 cient papyrus which has been discovered and deciphered. It 
 is the record of a suit about U7 years before the Christian era. 
 A Greek named Hermias was plaintiff and an Egyptian reli- 
 gious corporation defendant, and the suit was apparently like 
 an action of ejectment or a petitory action concerning the title 
 and possession of a house in Thebes. The court was composed 
 partly of Greek and partly of native officials. The names of 
 counsel on both sides are given. Both parties produced their 
 written titles, but the defendant not only exhibited some that 
 seemed to be better than those of the plaintiff, but also claimed 
 the benefit of prescription arising from long possession. The 
 court gave judgment in favor of defendant and enjoined the 
 plaintiff from undertaking further to disturb its possession-. 
 Under Roman domination the customs and laws of Egypt in 
 private matters were largely respected, and some of its admin- 
 istrative machinery was even adopted. An edict of the Roman 
 prefect in the year 68 A. D. recognizes the fact that by Egyptian 
 
LECTURES ON COMPABATIVE JURISPEUDENCE. 19 
 
 law the wife has the right to recover her dowry — we may pre- 
 sume in the case of the embarrassment of her husband's af- 
 fairs—and with a mortgage or privilege to secure it, and that 
 her dotal property could not be seized by her husband's cred- 
 itors. Roman law, however, was slowly extended in Egypt, 
 and by the seventh century of our era Roman forms and phrases 
 came in and Roman law was studied by scholars. In 1880 
 fragments of Roman law were discovered in the Convent of 
 Sinai, and Dareste states that in 1882 the Museum of the Louvre 
 acquired some Egyptian manuscripts or parchments containing 
 some fragments of Papanian, with notes by Paul and Ulpian. 
 
20 LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 LECTURE- VI. 
 Law of the Hebrews. 
 
 One of the principal sources of our knowledge of Hebrew law 
 is the collection of writings which we call the Bible, represent- 
 ing a development extending through many centuries. The 
 Hebrews divide their law into two parts, Mosaic and Sopheric. 
 The Mosaic would be found in the Pentateuch, or, if we include 
 the book of Joshua, the Hexateuch, and also in such indications 
 as are found in the other writings of the Old Testament. The 
 Sopheric included the doctrines and traditions of the scribes or 
 Sopherim. On these categories was based the Mishnah, a work 
 that undertook to exhibit the development of the law and its 
 application to social and individual life, said to have been com- 
 piled by the Rabbi Jehuda in the second century of our era. 
 The Gemara, we are told, signifies a teaching or commentary ; 
 and that brings us to the Talm\id, which may be described as 
 made up of Mishnah and Gemara — that is, of law and com- 
 mentary. There have been two Talmuds, the one completed in 
 Palestine in the fourth century of our era and the other in Baby- 
 lon in the fifth century. Their contents, of course, relate back to 
 earlier dates. 
 
 The history of the Hebrews is a long story of a primitive peo- 
 ple slowly reaching a condition of ancient civilization. It is not 
 necessary as students of law to attempt to reconcile the many 
 points of dispute in regard to this history. It may be assumed 
 that there was a family of Abraham that moved from the east- 
 ward toward the southwest through Canaan and visited Egypt 
 perhaps twenty- four centuries before our era ; that a Hebrew 
 called Joseph was prime minister of Egypt in the eighteenth 
 century of our era ; that his father and brethren were invited 
 to settle in Egypt and remain there until what we call the Exo- 
 dus took place, probably in the fourteenth century before our 
 era ; that Moses was leader and law-giver of the Hebrew peo ■ 
 pie and so remained until his death ; that the people, after many 
 years of wandering and war, eflfected a conquest of Canaan and 
 were under the rule of what were called judges, a kind of officer 
 
LECTURES ON COMPARATIVE JUBISPRUDENCE. 21 
 
 known among other Semitic people ; that about the tenth cen- 
 tury before our era the office of king was introduced under Saul, 
 who was succeeded by David during a period of war, and then 
 by Solomon during a period of peace, commerce, and luxury ; 
 that after the death of Solomon the great division took place, 
 the two tribes of Judah and Benjamin remaining loyal to the 
 house of David and being known henceforward as the Kingdom 
 of Jrtdah, and the other ten tribes establishing the Kingdom of 
 Israel. In the eighth century B. C. the Kingdom of Israel fell 
 before the Assyrian power, and its people, being scattered abroad, 
 became known as the Lost Tribes. Some joined their brethren 
 of Judah, some settled in Babylon, and the rest were probably 
 absorbed among their neighbors. The Kingdom of Judah, lying 
 farther south and less exposed, survivied another century and 
 fell before the arms of Babylon. Jerusalem was destroyed and 
 the first temple razed to the ground and the people were carried 
 off as captives 598 B. C. When Babylon fell before Cyrus the 
 Hebrews were allowed to return to Jerusalem and rebuild their 
 temple, 537 B. C, but never regained any independent nation- 
 ality, being ruled in succession by Persia, by Alexander of 
 Macedon, by Ptolemy, by Assyrian princes, and finally by the 
 Roman power, which took possession under Pompey, 63 B. C. . 
 The events of this hifetory exercised a marked influence over 
 Hebrew life and thought. Ij'rom a pastoral and agricultural 
 people, whose ideal was a land flowing with milk and honey,' 
 they became a race of dispersed people, artisans, travelers, 
 traders, merchants, and bankers. 
 
 Persons in Hebrew Law. — We find first a primitive family as 
 the social unit, with many of the same features that we have 
 found among other primitive people. A large figure called 
 Abraham is at the head of it. We catch a glimpse of the difier- 
 ence between Sarah, the legititji ate wife, and her legitimate son,, 
 Isaac, who had been promised, on the one hand, and the con- 
 cubine Hagar and her son, Ishmael, on the other. Abraham 
 dotes on Ishmael, his brilliant boy, and he prays to the family 
 God, "0! that Ishmael might stand before Thee" — that is, 
 that he might have the status of a real soji of the family and 
 perpetuate its worship, as well as its affairs. The prayer is de- 
 nied. Isaac is born and assumes the pfiice, and Ishmael is fliially 
 sent away to found a diflferent family. The same id.eas run 
 
22 LECTUEES ON COMPARATIVii JUKISPKUDENCEi 
 
 through the history of Isaac, of Jacob, and of his twelve sons, 
 who are said to have founded twelve tribes. The same idea of 
 a family group is expressed in tlie injunctions of the Ten Com- 
 mandments, where the solidary obligations of its members are 
 said to extend to the third and fourth generations ; where rever-- 
 ence to the house-father and house-mother is made the suloject- 
 of a special command ; where an order is addressed to the head 
 of the house, and his son, and his daughter, and his manservant, 
 and his maidservant, his cattle, and the stranger within his 
 gates, and where the people are forbidden to covet a neighbor's 
 house, or his wife, or his manservant, or his maidservant, or 
 his ox, or his ass, or anything that is his. The idea of a Divine' 
 Being w^as largely ancestral, and with the concept of one God, 
 who was the great house-father, the Lord of truth and right- 
 eousness, came the concept of his children as being equal in 
 right if not in worldly condition. The Hebrew law was there- 
 fore very democratic, so far as the members of its own family 
 were concerned. Rules in regard to strangers, proselytes, and 
 slaves were somewhat different. Yet in these we see a great 
 advance on primitive notions with respect to the stranger and 
 tlie sojourner. The Outlander is to have the same public justice 
 a« the children of Israel. A curse is pronounced on him who 
 shall pervert the judgment of the stranger. 
 
 Marriage was the subject of high regard. It was a civij con- 
 tract in Ibis respect, that it was not celebrated by any minister 
 of worship, but by the house-father, who placed the hand of his 
 daughter in that of her future husband. Marriage of very near 
 relatives, such as Moses might have known of in Egypt, was 
 forbidden by rules that lie at the foundation of our modern ideas 
 on the subject of prohibited degrees. The long contest in Eng- 
 land concerning marriage to a deceased wife's sister was founded 
 on Mosaic law, and perhaps on a misinterpretation. The pa- 
 ternal power was in full force among the early Hebrews, and 
 when Abraham thought himself called upon to slay his only 
 son he was proposing to exercise the power of a family sover- 
 eign. Case of Jephthah's daughter. Moses prohibited such acts, 
 but severe punishments were provided for a rebellious son. The 
 age of majority was early — for males, 13 ; for females, 12 — and 
 tutorship or guardianship was known for minors who had lost 
 a father. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 23 
 
 There does not seem to have been any testamentary succes- 
 sion, at least in the earlier times. The birthright which Jacob 
 bought from his elder brother was a right to a larger portion of 
 the family estate — perhaps, a double portion. On the death of 
 the house-father the sons would first succeed under Mosaic law ; 
 but if there were no son or grandson the daughters inherited, 
 but with the restriction, based upon the family idea, that they 
 must not marry, and so carry off the property, outside the tribe. 
 
 Property and Obligations. — Personal property among the 
 Hebrews was transferred by agreement of sale and actual de- 
 livery; as in Roman law. The transfer of real estate was com- 
 plete only after a payment of the agreed price and an actual or 
 symbolical delivery of possession. An example of sale and 
 symbolical delivery is found in the book of Ruth, and there re- 
 ferred to as having been executed according to ancient custom. 
 The right to land of Ruth's deceased husband and the righ t to 
 many Ruth herself is transferred to Boaz by public agreement 
 at the gate of the town, and the vendor makes a symbolical de- 
 livery by pulling off his shoe and giving it to Boaz. 
 
 The institution known as the "jubilee'' at the end of each 
 half century seems to have been intended to preserve a sort of 
 equality of fortune among the people (Leviticus 25: 8-11) by 
 means of a redistribution in each fiftieth year, whereby every 
 man should re-enter into the family property and status on cer- 
 tain conditions. It was an institution probably for a pastoral 
 people, and seems to have fallen into disuse after the Baby- 
 lonian exile. 
 
 The principal contracts are sale, pledge, loan, lease, and de- 
 posit. The unfaithful depositary is considered as a thief The 
 first recorded sale is the purchase by Abraham of a cave and 
 plot of ground in which Sarah was buried. A curious example 
 of the formalities of sale is given in the book of Jereqaiah, 32: 
 8-14, where the ceremony resembled one mentioned in Roman 
 law, the deed being folded and sealed, in such a way that the 
 witnesses could sign their names and yet not see or know its 
 contents. This may not appear very clearly in the English 
 version, but we are told that it is the meaning of the original. 
 
 The Hebrews, when dispersed, began to exercise their talents 
 for business and finance. They made use of orders for money 
 which resembled bills of exchange, Agrippa, a friend of the 
 
24 LECTCEES ON COMPARATIVE JURISPRUDENCE'. 
 
 Emperor Caligula, was a famous banker. Babylonian Jews 
 had dealings with maritime people. There are discussions in 
 their Talmud about freight, jettison, and contribution in gen- 
 ■ eral average, and also in regard to a.kind of mutual marine in- 
 surance. 
 
 Procedure. — We find in Hebrew law and in primitive times 
 the same ideas regarding the " blood-feud " and the same effort 
 to replace private vengeance by some kind of public procedure. 
 It seems difficult for primitive people to draw the line between 
 a willful murder and manslaughter or even accidental homicide. 
 The Mosaic law seemis to have been a progress in this matter. 
 Willful murder was punished with death, but for involuntary 
 homicide there were cities of refuge (Numbers, 35 ; Deuteron- 
 omy, 4). The unfortunate man who thus sought asylum from 
 the avenger of blood— that is, from some member of the family 
 of the deceased — was submitted to a judicial investigation and 
 allowed to remain in asylum on conditions and for a certain 
 time. His temporary status seemed to be a kind of exile from 
 home as a punishment for cai'elessnes rsesulting in death, but 
 without malice. 
 
 Beside the family tribunal, which probably exercised author- 
 ity in many cases, there were three kinds of courts. The lowest 
 was the tribunal of three judges sitting at the gate of each city 
 and having both civil and criminal jurisdiction. Next above 
 came the tribunal of twenty-three judges in each of the larger 
 towns. There were two such in Jerusalem. These courts en- 
 tertained appeals and had original jui isdiction in capital cases. 
 Finally, at the head came the Sanhedrim or great assembly, 
 mentioned in Numbers, chapter 2. This has been compared to 
 the Parlement of Paris, having both judicial and political powers. 
 Hebrew law contained many maxims worthy of study. It de- 
 clared that the burden of proof is on the plaintiff; that a man 
 should use his property in such a way as not to injure his 
 neighbor ; that he whose duty it is to guard a thing is liable for 
 the damage that may be done by such thing ; that acts done 
 under duress or resulting from inevitable accident may be ex- 
 cused ; that if, however, damage begins in our fault but culmi- 
 nates by accident we are liable ; that while the agent represents 
 the prmcipal in lawful acts, there is no lawful agency in com- 
 mitting a wrong ; that intent is the important element in crime, 
 
LECTURES ON COMPAKATIVK JURISPUUDENCK 25 
 
 and that no one is presumed to trifle at tlie point of death, this 
 last saying probably having reference to dying declarations. 
 
 The Hebrew Law a Large Factor in the Legal Systems of the 
 Present Day. — Tlie early missionaries of Christianity were He- 
 brews and carried their Scriptures with them. As the Christian 
 Church took possession of the world it carried the Scriptures 
 with it as a guide, not only in the matters of faith, but in the 
 matters of municipal law. The Reformation of the sixteenth 
 century intensified this influence, and judges in England, not 
 only ecclesiastical but secular, quoted Scripture as if it were an 
 act of Parliament. Rules as to marriage and prohibited degrees, 
 theories in regard to homicide, Sunday laws, laws in regard to 
 cruelty to animals, are a few of the examples which testify to 
 this influence. Sometimes the effect has been noxious, because 
 the Scriptures have been misunderstood, as where so great and 
 good a judge as Matthew Hale told a jury that doubtless there 
 ■were witches, and they ought to be put to death, because the 
 Bible said so. 
 
26 LECTURKS ON COMPARATIVE JUEISPEUDKNCE. 
 
 LECTURE VII. 
 Law of Greece. 
 
 The Greeks were an Aryan people, supposed to have come 
 from the mountains of Asia, crossing, perhaps, the Hellespont^ 
 and pushing before them or subjecting the primitive inhabit- 
 ants of the peninsulas and islands that we call ancient Greece. 
 There are many legendary stories of law-givers, such as Minos, 
 king of Crete. It is thought that some of his legal institutions 
 were incorporated into Lacedremonian law; but we do not 
 dwell on this. The principal branches of the Hellenic race to 
 be considered are those usually referred to as the Dorians and 
 the lonians, The Dorians may be represented by Sparta and 
 the laws of Lycurgus ; the lonians, in their later development, 
 by Athens and the laws of Solon and Oleisthenes, and the indi- 
 cations found in such works as those of Plato, Aristotle, Theo- 
 phrastus, Plutarch, Athenseus, and Pausanius. 
 
 We do not dwell long on Lycurgus and his organization of 
 Sparta. He maybe called a student of comparative jurispru- 
 dence belonging to the ninth century B. C, who traveled in 
 Crete, Egypt, and possibly in India, to gather up the results of 
 experience in legal matters. He procured the adoption of a 
 system in Sparta which probably suited the condition of the 
 people at the time. Sparta was in a sense a military camp, and 
 their system of law and discipline was suited to their station. 
 
 When we come to Athens we are in a diflferent atmosphere. 
 While the Athenians were, in case of necessitjn a military and 
 naval people, they were much more than mere fighters, having 
 a great genius for art, letters, and commerce. They were never 
 fortunate in their political organization and extension. If 
 Alexander the Macedonian, who seems to have had a genius in 
 matters of public policy and to have added to an unusual gift 
 of military skill an unusual ability in the arts of peace, could 
 have lived a few years longer he might have taken up the sub- 
 ject of jurisprudence, as Julius Caesar, Justinian, and Napoleon 
 did, and we might have looked to a codified law of Greece as 
 we now look to the law of Rome. Nevertheless, the Greeks 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. Z/ 
 
 contributed largely to juristic ideas in Rome, as well as to ideas 
 of philosophy, art, and letters. The story that when the twelve 
 tables f Rome were planned a commission was sent to Greece 
 to study its laws is quite worthy of belief. 
 
 Solon became archon or chief magistrate in Athens 594 B. 0. 
 and undertook to reform the constitution and laws. He had 
 been a merchant and traveler, had taken part also in some, in- 
 vestigations in natural science, was a writer of verses, a jurist, 
 and a statesman, and reminds one sometimes of Benjamin 
 FraulUin. It is difficult to state precisely his entire system of 
 laws, because in after times his name was used as a general type, 
 and the phrase " Laws of Solon " referred sometimes to a period 
 rather than an author. 
 
 Personal Relations. — We find first the primitive family of 
 Aryan descent, the composition of which may be perceived in 
 the Homeric poems. Reference may be made to Fustel de 
 Ooulanges' " Ancient City " and Heani's " Aryan Household." 
 We find the ancestral worship, the sacred hearth, the common 
 meal, and the solidary obligations of the family group. The 
 Odyssey acquires a new meaning when vko recognize these rules. 
 Penelope was faithful to more than a mere sentiment. She was 
 devoted to the law and worship of a primitive family. 
 
 In Greece, as elsewhere among such people, the family de- 
 veloped into the gens and tribe, and village communities ap- 
 peared. Clusters of such communes existed in the suburbs of 
 Athens, and were slowly united into that form called the ancient 
 city. Remains of them were seen by Pausanias. Marriage 
 among these people was monogamous, and celibacy was looked 
 upon with disfavor. In early times men were married as soon 
 as the age of 18, and women at the age of 15. The bride was 
 given away by her nearest male relative, and the question, 
 " Who giveth this woman to be married to this man ? " may date 
 back to early Greece. A wedding feast was part of the cere' 
 mony, and the institution of the dowry was well known. De- 
 tails on this subject. The status of an orphan heiress resembled 
 in its rules the Hebrew law. The paternal power existed, but 
 was modified by a rapidly advancing civilization. ■ Solon liuiited 
 this power; but we may suppose it existed in early times to an 
 extent quite as great as it exhibited in Rome. The proposed 
 sacrifice of Iphigenia by her father, Agamemnon, may be re- 
 
28 LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 ferred to this power. Children owed the duty of support to 
 their parents, but not where the fitther had failed to teach some 
 trade or business to his son or had dishonored him in some way. 
 The quasi-corporate nature of the family estate is shown by the 
 feet that a prodigal father might be removed from its adminis- 
 tration. On the other hand, a father might disinherit his son 
 for just cause, and this rule of Greeli law is alluded to as such 
 in the code of Justinian. Adoption was a part of family law in 
 Greece for the same reasons as those we have found among other 
 people of the East, and was minutely regulated. A person 
 adopting must be a citizen, sui juris, at least fourteen years older 
 than the one adopted, and must have no male child at the time. 
 If after adoptipn he had a legitimate male child, this child and 
 the adopted one would divide the inheritance. 
 
 In Attic law, as afterwards in Roman, succession to the prop- 
 erty of a deceased person was either legal or testamentary. In 
 early times, at least, one could not dispose of his patrimony by 
 will except where he left no lawful heirs of the immediate fam- 
 ily. While these heirs could not be disinherited, neither could 
 they reject an estate, but took it with its burdens. Jf there 
 were sons they were preferred in heirehip, but in default of 
 sons the daughters were called to inherit and became the heir- 
 esses alluded to above. This consideration for women may 
 have been derived from Egypt. In default of descendants there 
 was the heirship of collaterals, with a marked preference for 
 the agnatic line. 
 
 Property and Obligations. — In early times ideas on these sub- 
 jects were not unlike those of other Aryan people. The Athe- 
 nians, however, joined the letters and learning of Egypt and 
 Phoenicia to their own and made rapid progress in the details 
 of conveying and recording titles of real property and in utiliz- 
 ing personal property for purposes of business credit. They 
 even acquired the reputation among their duller neighbors of 
 being too acute. However this may be, they were very accom- 
 plished scrivenfera and conveyancers. Titles of property were 
 matters of public registry and classification. Mortgages were 
 notified to the world by monuments erected on the land itself. 
 Pledges of personal property were known and the pledge of real 
 estate was called by tlie Greek name of antichresis. We find 
 traces of that doctrine of the police power which declares 
 
LECTUEBS ON COMPAEATIVE JUEISPRUDENCE. 29 
 
 that all property is held subject to certain obligations to the 
 public and to one's neighbor. Hence the rules laid down by- 
 Solon, and which we are told by the classical jurists of Rome 
 eame to Rome from Solon's system, in regard to boundaries of 
 land, the rights of adjoining proprietors, the building of walls 
 and the plantiug of trees, the digging of wells and cesspools and 
 the situation of graves near a property line. 
 
 Greek merchants were famous from early days. Their ships 
 visited every country that could be reached by the methods of 
 navigation then practicable. Hence grew up a kind of com- 
 mercial and maritime law resembling the growth of what we ■ 
 know as the law merchant of England. It was the law of mer- 
 chants resulting from their customs of trade. The Island of 
 Rhodes was famous for its commerce, being an entrep6t of busi- 
 ness between the East and West. The Rhodian law, as it has 
 been called, was probably a system that concerned this extensive 
 trade. It is not extant in any large degree. There was one im^ 
 portant provision in regard to general average. Barnard vs, 
 Adams, 10th Howard, 270. We are told that when such a ques- 
 tion of contribution was laid before the Emperor Antoninus he 
 directed it to be decided according to the Rhodian law. It is 
 claimed that by the same system the owner of a ship raigiit be 
 held for the acts of the master within the scope of his employ- 
 ment. Another part of the system seems to have made carriers 
 by sea responsible to the owners of the goods ; and another is 
 said to have regulated laws on bottomry and respondentia, and 
 still another to have visited the plunderer of a vessel with four- 
 fold damages. 
 
 Procedure. — Many cases were decided in Athens by voluntary 
 arbitration, and tlie decision was final. There were also public 
 or official arbitrators who had jurisdiction of civil cases, both of 
 contract and tort, to any amount and without regard to the 
 citizenship of the parties. This looks like a great advance in 
 ancient law. It is interesting to notice also that in some in- 
 stances the case was referred to these official arbitrators by the 
 magistrate, a practice resembling the formulary procedure after- 
 wards adopted in Rome, in which the praetor formulated the 
 issue and sent it to the judex or referee. Next came the tri- 
 bunals, in which the people took such an active interest, the 
 Heliasts, or, as we might say, the jury sections, for which 6,000 
 
30 J.ECTURES ON COMPARATIVE JUBISPEUDJ5NCE. 
 
 citizen? were drawn and divided into five sections of 500 each, 
 the rest forming a reserve. Some of these sections decided or- 
 dinary cases, others were special juries acting as experts. There 
 were also tribunals that went on circuit in the provinces, and 
 there were also tribunals of commerce. The Areopagus was 
 composed of distinguished citizens who had held office with 
 honor. It is not to be confounded with Solon's senate, but was 
 a body with judicial power as archaic in Attica as that of the 
 House of Lords of England. It was an interesting link between 
 the rude procedure of primitive times and the refined process 
 and the elaborate oratory of the classical period. Saint Paul 
 delivered his sermon on Mars hill, the place of its sittings, though 
 we cannot say that his audience was the court itself. It might 
 have been, for the Areopagus is said to have had control of pub- 
 lic morals and of the always interesting question of the intro- 
 duction of new religions. t>iminal cases were heai'd before it, 
 and cases involving important civic questions of public order or 
 public policy. 
 
 The development of Greek political history and Greek law in 
 some respects is like tfiaLof Rome. In both we find at first a 
 irionarcby, so called, a line of kings. In time there is dissatis- 
 faction and a tendency to form a republic. In Athens we find 
 in the eighth century B. 0. that the archonship is held for a 
 peiiod of ten years. During the seventh centui'y B. C. it be- 
 comes an annual office. The same development appears after- 
 wards in Rome when the monarchy is replaced by a republic 
 and the kings by consuls, holding an annual office. The Greeks 
 were teachers of the Romans in many things, and the Romans 
 were keen to avail themselves of such teaching, and may have 
 done so in their constitution as they did iu the matter of private 
 law. 
 
 LECTURE VIII. 
 
 Review of three preceding lectures. Comparison of Egyptian, 
 Hebrew, Phoenician, and Greek laws and their influence on the 
 growth of Roman law. Debate by the class. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 LECTURE IX. 
 Roman Law^Introductory. 
 
 The text books are Sandar's Institutes, with Hammond's In- 
 troduction and Muirhead's Roman Law. 2d edition. Howe's 
 Studies in the Civil Law may also be reviewed. Before taking 
 up a discussion of the text of the Institutes, some introductory 
 lectures are to be given. 
 
 Romans an Aryan people, having primitive ideas of custom 
 and law similar to those of other peoples of same stock. The 
 development of civilization and law later in Rome than in 
 Greece and in other countries to the eastward, and thus Rome 
 largely indebted to earlier systems in letters, philosophy, and 
 law. 
 
 The Roman family had the^ general features of the Aryan 
 houseliold. Its agnatic character. The paternal power a large 
 and persistent feature. The formation of the gens. The regi- 
 mentation into tribes. The village communities around the 
 Tiber and their union in the city of Rome. 
 
 The fundamental distinction between the Populus and the 
 Plebs. The populus represented, in theory at least, the out- 
 growth of the primitive families. They preserved their family 
 customs; they maintained their religious ceremonies; they 
 claimed for long a monopoly of sacred rites and legal knowledge. 
 Tribes divided into curise and curiae into decuriie. The heads 
 of these burgher families composed the comitia curiata. A 
 smaller body, said to have corresponded in number to the gentes, 
 composed the Senate. 
 
 The Plebs, on the other hand, broadly speaking, included the 
 large number of inhabitants who did not at first possess any 
 claim to the peculiar privileges from family descent, real or as- 
 sumed. Whether they were subjugated people, strangers who 
 had come to Rome as immigrants, or dependents who had left 
 their condition of clientage, they belonged to no gens, at least 
 
 5h • (31) 
 
32 LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 in the primitive sense ; liad no share in the religious ceremonies 
 or in the jus sacrum ; no place in the comitia curiata ; no share 
 in the executive or legislative government. In the language of 
 today, they might be called Outlanders. 
 
 Under the Servian constitution the comitia centuriata, based 
 on a theoretical division into groups of one hundred, opened a 
 door to the plebs by making the two orders meet on the com- 
 mon ground of a graduated scale of property. 
 
 We next find the comitia tributa, the assembly of the tribes, 
 and then from this, as an outgrowth, the consilium plebia, 
 summoned and presided over by plebeian magistrates, and legis- 
 lating, as will be seen hereafter, firstly for their own govern- 
 ment, and finally for the purposes of general control. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 33 
 
 LECTURE X. 
 Roman Law — Continued. 
 
 The Roman methods of what we would call in modern phrase 
 "legislation." The leges proper as adopted in the comitia cen- 
 turiata. . The senatus consulta, or decrees of the Senate, believed 
 at first to relate chiefly to matters of social administration and 
 the police power. Tiie plebiscita, or statutes enacted, in and by 
 the consilium plebis, at first for the government of plebeians, 
 perhaps lilce by-laws of a body politic, and afterward having the 
 force of general statutes, under the Lex Hortensia, 467 A. U. 0. 
 Conflicting opinions as to practical working of what seems a 
 singular system or want of system. It may probably be best 
 understood in the foregoing method of statement, at least dur- 
 ing the Republican period. 
 
 The imperial constitutions, after the all-embracing power of 
 the emperor had become established, had also the force of gen- 
 eral legislation where they concerned general rules of law. 
 
 The Praetorian law. — The edidt of the praetor, a mingled code 
 of law and practice by which the narrow and technical rules 
 of tl>e jus civile were expanded and applied to new conditions. 
 Resemblances to the manner in which common law and equity 
 were developed in England. 
 
 The work of the jurisconsults, who at first gave opinions as 
 counsel or devoted .their skill to the writing of treatises, and 
 some of whom were afterwards endowed by the emperor with 
 the jus respondendi. For notices of some. of the more eminent 
 see Sandar's Insts., p. 19. 
 
34 LECTURES ON COMPARATIVE JUBISPEUDENCE. 
 
 LECTURE XI. 
 Roman Law— Continued. 
 
 The Twelve Tables.— Ten of them enacted by comitia cen- 
 tnriatain 303 A. U. C, and the remaining two about a year after. 
 It is now believed that they summed up for the information of 
 the public the leading principles of law as then understqod, and 
 that they contained many provisions derived from Greece or 
 from the Greeli colonies of Italy. (See Muirhead, 2d edition, 
 1899, pp. 44 et seq. ) The contents of the Twelve Tables collated 
 from classical and juristic writings; their arrangement conject- 
 ul-al. If the prsetorian edict followed the same general plan 
 and the digest pursued the same arrangement as the edict, we 
 may derive a theory as to the manner in which the tables were 
 arranged. Mr. Ortolan, in his work on Roman legislation, adopts 
 the theory of Dircltsen and Zell, and this conjectural recon- 
 struction will be found in the appendix to Howe's Studies in 
 the Civil Law. Professor Voight, of Leipsic (1883), proposes an- 
 other plan, which Professor Muirhead thinks shouldbe received 
 with "caution" (p. 100). Mr. F. Goodwin (London, 1S86) has 
 published an edition. Reference may also be made to the version 
 of Schoell as adopted by Bruns and printed as an appendix to 
 Muirhead (2d edition, 1899, p. 434). 
 
 The law of the Twelve Tables modified, expanded, and 
 amended by subsequent legislation. The activity of the em- 
 perors through their judicial councils. The tendency to new 
 codifications. The perpetual edict under Hadrian. The Grego- 
 rian Code. The Hermogenian Code. The Code of Theodosius 
 II, A. D. 438. The compilations of Justinian begun, A. D. 528. 
 The first Code of Justinian, A. D. 529, replaced by that of A. D. 
 534. The Digest or Pandects, a sort of cyclopedia of law, in 
 which the writings of the classical jurists were edited and pre- 
 served. The Institutes, a text book for law schools, A. D. 533. 
 The Novells, or new Constitutions of Justinian. The 1 18th and 
 127th Novell still the basis of intestate succession. 
 
 LECTURE XII. 
 
 Review of the thi-ee next preceding lectures, with recitation 
 and discussion by the class. 
 
LKCTUKES ON COMPARATIVE JUEISPKUDENCE. 35 
 
 LECTUEE XIII. 
 The Institutes of Justinian. 
 
 General arrangement of the work. The general definitions of 
 law and justice. The sources of Roman law, as already noted 
 in previous lectures. The recognition of jus gentium, the law 
 of other civilized peoples, and its incorporation through com- 
 mercial intercourse. Resemblance to the development and 
 adoption of the law merchant of England and our own country. 
 
 The division of law as it concerns persons, things, and actions. 
 The law of persons in Rome as laid down in the first book of 
 the Institutes ; as free or unfree ; as sui juris or alieni juris ; 
 as related by marriage ; as connected by adoption ; as subject to 
 tutelage, and as possessing a status or caput that might be 
 dimished. The law of natural persons and juridical persons, 
 guildSjSocieties, and corporations. 
 
 LECTURE XIV. 
 The Institutes — Continued. 
 
 The second book, concerning things or property, and vari- 
 ous methods of acquiring or losing dominion over property. 
 Public and private property. Things common to all. Sacred, 
 religious, and holy things. Acquiring property by occupancy, 
 capture, and finding. Law as to wild animals. Acquiring prw- 
 erty by accession. Law of alluvion as an example. Fruits of 
 property. Translation of property by delivery. 
 
 Things also either corporeal or incorporeal. The rights called 
 Servitudes, resembling the easements of English law. Usufruct, 
 use and habitation. 
 
 Usucaption. The possession of property by detention and 
 the animus of ownership. The prescription aoquirendi causa of 
 modern civil law. Adverse possession. 
 
36 LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 LEOTUEE XV. 
 
 The Institutes — Continued. 
 
 Further methods of acquiring things as contained in second 
 book. Donations mortis causa and inter vivos. Voluntary 
 alienation. Some persons having title cannot sell because they 
 are prevented by some rule of law. Others, as factors, not liav- 
 ing title, may yet sell in virtue of the relation they occupy. 
 Acquisitions through the legal agency of another. 
 
 Acquisition by testament. The ancient methods of making 
 wills: in comitia calata; in procinctu, and per aes et libram. 
 The prsetorian method, in writing with the seals of seven wit- 
 nesses. The military testament. The disinheriting of children. 
 Origin of the idea of " cutting off with a shilling." Of substitu- 
 tions by testament. The vulgar substitution. The pupillary. 
 
 The revocation of testaments by fact or law. Of inofficious 
 testaments. Of the institution of heirs. Heirs classified as 
 necessary, sui et necessarii, and extraneous or collateral. The 
 ideas of primitive law, dwelt on in the earlier lectures, repeated 
 in the Institutes (2, 19, 2) that sui heredes are in a sense owners 
 in the family estate, and quasi -corporators. 
 
 Legacies; the different kinds ; their interpretation and effect. 
 Fidei Commissa considered as testamentary trusts and their re- 
 lations to the English law of Trusts. Views of Mi'. Kent and 
 opposite views of Chief Justice Holmes. 
 
 Revocation of legacies. Limitations on the quantum of dis- 
 position. Falcidian law. Modern rules as to forced heirship 
 and disposable portion. 
 
 LECTURE XVI. 
 
 Review of next three preceding lectures and discussion by 
 the class. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 LECTURE XVII. 
 
 Institutes— Continued. 
 
 The third book continues the subject of the acquisition of 
 Things, and takes up at first the topic of Intestate Succession. 
 A person dies intestate who has either made no testament at 
 all or has made one not legally valid, or, if the testament he 
 has made is revoked or made useless, or if no one becomes an 
 heir under it. By the Twelve Tables the inheritance of intes- 
 tates belongs firstly to the sui heredes — that is, those who at 
 the death of the deceased were in his "power" : then in de- 
 fault of such to the agnates ; then in default of agnates to the 
 gentiles. In time and by prsetorian law cognates, related 
 through the female line, displaced the gentiles. The definition 
 and rights of sui heredes. Emancipated children. Adopted 
 children. The prsetorian right accorded to children ignored or 
 illegally disinherited, to whom the praetor gave contra tabulas. 
 Provisions as to succession of agnates. The gradual change in 
 favor of women and cognates. The senatus-coiisultum Tertul- 
 lianum concerning rights of mother, A. D. 158. The senatus- 
 consultum orphitianum, A. D. 178, giving reciprocal right to 
 children as to goods of intestate mother. Agnates, it is to be 
 ren)embered, are persons related to one another through males, 
 whether the relationship be natural, adoptive, or quasi-adoptive ; 
 and agnation is the tie between two or more persons which is 
 based on the Paternal Power or Manus, to which all of them 
 would be subject if the head of the " farailia " were still alive. 
 Cognation, on the other hand, is what we call i-elationship by 
 blood. All those persons are cognates of each other who are 
 sprung from one and the same person, whether male or female; 
 and the relationship may be either lineal, as between parent 
 and child, or collateral, as between brother and sister. Those 
 who are of the same blood by both parents are called germani ; 
 those who were born of different mothers by a common father 
 are consanguinei ; those born of the same mother by different 
 fathers, uterini. Different grades of cognation set forth in the 
 6th Title, 3d Book. 
 
 The system of bonorum possessiones, introduced by the 
 praetors in conformity to principles of equity, "ex bono et 
 sequo." 3, 9, 2-10. 
 
 6h (37) 
 
38 LECT0RES ON COMPARATIVE JTJKISPKUDENCE. 
 
 The changes made after the publication of the Institutes by 
 the 118 Novell, A. D. 543, and the 127 Novell, A. D. 547, are 
 important and must be carefully studied. The difference be- 
 tween the legal succession or hereditas and the praetorian bono- 
 rum possessio and those still remaining between agnates and 
 cognates are swept away. Three orders of intestate succession 
 are established : (1) That of descendants ; (2) that of ascend- 
 ants ; (3) that of collaterals. The details are given by Sandars, 
 p. 389. 
 
 Acquisition by arrogation, Tit. 10, and by slaves in certain 
 cases, Tit. 11. Succession of creditors by adjudication in cer- 
 tain cases. Tit. 12. 
 
 Acquisition of property or rights by the effect of Obligations. 
 Importance of this topic in both Koman and modern civil law. 
 The law of our new possessions cannot be understood without 
 a knowledge of this subject. Such knowledge also throws a 
 flood of light upon the law of contracts, quasi-contracts, and 
 torts in English and American law. The Institutes (3, 13, 1) 
 first divide obligations into civil and prsetorian ; the former 
 being the ones recognized in the early jus civile, and the latter 
 recognized and enforced by the prsetor as the honorary law ex- 
 panded. They also point out the' sources of obligations. We 
 must carefully distinguish between an obligation, on the one 
 hand, and a contract, for example, on the other. They are re- 
 lated as effect and cause. All valid contracts produce obliga- 
 tions, but all obligations are not produced by contracts. The 
 Institutes recognize that obligations are legal ties proceeding 
 from four sources: (I) Ex contractu, (2) quasi e-^c contractu, 
 (3) ex maleflcio, and (4) quasi ex maleflcio, or, as we may say 
 in modern terms, from contract, quasi-contract, tort, and neg- 
 lect. To this civilians add a fifth source, namely, the direct 
 operation of law, in the absence of any of the above four. 
 
 Contracts. In early Eoman law, as in the law of all primitive 
 people,contracts were few and made with many ceremonies,\^^hich 
 had their origin in the theories of religion ani family law or 
 custom. Nexum. Mancipation. The writers of the Institutes, 
 foUowingGaius, take upcontracts as they are— (1) real, (2) verbal, 
 (3) literal, and (4) consensual. The real contract implies the 
 actual delivery of the thing, as in mutuum, commodatum, de- 
 positum, and pignus. So it is said "re contrahitur obligatio.'' 
 (3, 14, 1-4.) The verbal contract was somewhat different and 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 39 
 
 niuoh more technical than the epithet would imply today. The 
 ancient stipulation was made by a special form of question, re- 
 sponded to by a special form of answer. The literal contract 
 was formed by entries in a ledger, which every Roman house- 
 holder was expected to keep. The consensual contract belonged 
 to a class recognized as springing from the consent of the 
 parties — sale, letting and hiring, partnership, and mandate. 
 They belonged to a period later than the jus civile and were 
 jure gentium (Inst., 1, 2, 2). 
 
 The writers in title 20 discuss the law of the accessory obliga- 
 tion by fide jussores. Thd principles underlie the law of surety- 
 ship. For an English case where the court seems to have relied 
 entirely on Roman law as a rule of decision see Bechervaise vs. 
 Lewis, L. R. 7 Common Pleas, 372. 
 
 LECTURE XVIIl. 
 
 Institutes — Continu ed. 
 
 Consensual obligations further considered. The progress of 
 prsetorian law in such matters. Emptio et venditio. Forma- 
 tion of contract of sale jure gentium. Classification by civilians, 
 which is very useful today in determining the character of a 
 contract, by considering those elements which are essential, 
 those which are -natural, and those which are accidental. In 
 the contract of sale as now considered, there are three essen- 
 tials w^ithout which it will not exist at all, as a sale, namely, a 
 thing, a price, and a consent. On the other hand, there are 
 elements of the nature of a contract —that is, which exist unless 
 specially excluded, as warranty in sale, in those countries where 
 it is implied, unless excluded. Finally, there are accidental 
 stipulations which are not of the essence of a contract nor of its 
 nature, but may be added at the will of the parties, if lawful, 
 as, for example, a special place or time of payment. 
 
 Sales may be conditional or unconditional. A purchase of 
 property out of commerce by one knowing its character is void. 
 (3,23,4,5.) 
 
 The contract of letting and hiring and its rules. (3, 24, 1-6.) 
 
 The contract of partnership, its formation, and dissolution. 
 
 The contract of mandate and its reference to modern ideas of 
 agency. It was essentially gratuitous in Roman law, but an 
 honorarium like that given to an English barrister was some- 
 times presented. 
 
40 LECTURES ON COMPARATIVE JUKISPEUDENCE. 
 
 Obligations arising quasi ex contractu. The importance of 
 the fundamental rules of Roman law on this question as related 
 to the modern English and American doctrine of quasi-contracts. 
 Such obligations arise from certain lawful and beneficial acts in 
 the absence of contract or from some controlling consideration 
 of justice. Beneficial expenses incurred in preservation of 
 property of an absentee. Expenses of a tenant in common con- 
 cerning the common property. Funeral expenses under certain 
 circumstances. Obligation to refund money paid in error. But 
 a voluntary payment, with knowledge or where knowledge 
 should have existed, should not be recovered. Salvage and gen- 
 eral average in the admiralty, derived from the civil law, are 
 examples of obligations quasi ex contractu, being based on ben- 
 eficial acts in the absence of agreement. (See Howe's Studies 
 on the Civil Law, pp. 170 et seq.) 
 
 The extinguishment of obligations (3, 29, 4). The methods 
 mentioned in the Institutes are not so numerous as those of 
 modern civil law and may be considered as examples. Pay- 
 ment. Acceptilation or formal release. The Aquilian general 
 release. Novation and its relations to modern law, being the 
 substitution of one obligation for another and the extinguish- 
 ment of the latter, or even the substitution of one debtor or one 
 creditor for another. Voluntary remission. To these may be 
 added (1) the loss of the object of the contract without fault of 
 the parties ; (2) confusion where the qualities of debtor and 
 creditor become united in the same person or representatives ; 
 
 (3) compensation in some cases ; (4) death of a party whose ob- 
 ligation was purely personal ; (5) the occurrence of a dissolving 
 condition when it operates ; (6) the expiration of a term which 
 may operate an extinguishment; (7) rescission, and (S) pre- 
 scription when pleaded and so operating. (See Howe's Studies 
 on the Civil Law, pp. 149 et seq.) 
 
 Obligations arising ex delicto and quasi ex delicto (4, 1-5). 
 The subject of what we may call in modern terms torts and 
 neglects briefly dealt with in the Institutes. The early division 
 of torts into (1) furtum, (2) vi bona rapta, (3) damni injuria, and 
 
 (4) injuria. The Aquilian law in regard to injury, to the prop- 
 erty of another, a plebiscite adopted, probably, about the year 
 467 A. TJ. C, on the proposal of the tribuile Aquilius. Its pro- 
 visions lie at the foundation of many modern concepts. The 
 faute aquilienne of the French writers. See also Grueber on 
 
LECTURES ON C0MPAKA.T1VE JURISPRUDENCE. 41 
 
 the Aquilian law. This statute contained the germs of such 
 important ideas/as. Contributory Neglect and Proximate Cause. 
 The modern civil-law rules on the subject of torts may be 
 summed up in the proposition that every act of man that causes 
 injury to another obliges him by whose fault it occurred to repair 
 that injury. Several words in this rule must be emphasized. 
 The act must involve fault, either active or passive. It must 
 cause injury — that is, it must be the efficient and proximate cause 
 of an injury — that is, of unlawful damage. And finally, the 
 person whose fault has, in the legal sense, caused the^njurj' to 
 another is obliged — that is, is bound by a legal obligation to re- 
 pair that injury. (See Howe's Studies in the Civil Law, pp. 191 
 ei seq. ) 
 
 LECTURE XIX. 
 
 Institutes — Continued. 
 
 We now come to Actions, or the methods of procedure by 
 which the rights of persons are asserted and vindicated (4, 6, 
 et seq.). The actions recognized by the jus civile show a resem- 
 blance to those alluded to in previous lectures on primitive law. 
 They exhibit the difficulty everywhere found in the transition 
 from force and self-help to an orderly arbitrament by superior 
 authority. At first the family would take care of its own affiiirs. 
 Contracts would be few, and what we call lawsuits infrequent. 
 The legis actiones, namely, (1) sacramentum, (2) per judicis 
 postulationem, (3) per condictionem, (4) per manus injectionem, 
 (5) per pignoris capionem. The praetorian action on " the case." 
 The development of the formulary procedure, under which the 
 magistrate stated the question and referred it to the judex or 
 judices, Who might be likened to referees. This disappeared in 
 the time of Constantine,and from thenceforth we find the method 
 "extra ordinem," which lies at the basis of admiralty and 
 equity pleading, derived from that source and modified in some 
 ways by canon law. In Justinian's time suits begun by written 
 libel, libellus conventionis, and answer by defendant, with 
 sometimes exceptions and pleas to the jurisdiction. The pres 
 ent practice of civil-law countries has been taken as an example 
 in America for what we call "code procedure." 
 
 Under tlie rules of the Institutes an action was the right of 
 suing before a judge for that which is due the plaintiff (4, 6, pr.) 
 
42 LECTUEES ON COMPARATIVE JURISPRUDENCE. 
 
 and actions either real or personal (4, 6, 1). Actions also classed 
 as civil and prsetorian (4, 6, 3). Praetorian actions, either fictitia 
 in jus concepta or in factum concepta (Sandars, p. 513). Im- 
 portant example of former class, in jus concepta, is the Actio 
 Pauliana to rescind an act in fraud of creditors (4, 6, 6). An- 
 other is the Actio Serviana for rent, with enforcement of land- 
 lord's lien or privilege ; also the quasi Serviana to foreclose a 
 pledge Or mortgage. Both called also hypothecaria (4, 6, 7). 
 Actions concerning personal status, called prejudicial or pre- 
 liminary,(4, 6, 13). Division of actions as to object into those 
 (1) to recover the thing, (2) to recover the penalty, (3) to do both 
 (4, 6, 16-27). 
 
 Another division of actions into (1) of good faith which were 
 prsetorian ; (2) of strict law^, under jus civile, and (3) those called 
 arbitrary being submitted to the arbitrium or large equitable 
 discretion of the judge (4, 6, 28-32). 
 
 Provisions as to errors and amendments, in pleadings (4, 6, 
 33-35.) The doctrine of compensation or set-oflf (4, 6, 39 and 
 notes. See Howe's Studies in Civil Law, pp. 159 et seq. ) 
 
 Actions on contracts made by persons alieni juris by order or 
 for the benefit of master or parent (4, 7, 1-8). Noxal actions 
 (4,8,1-7). /(f.,(9, 1). 
 
 Management of actions by procurators ; proctors ; attorneys 
 (4, 10, 1, 2). Security in suits (4, 11, 1-7). 
 
 Prescription or limitation of actions (4, 12, 1-2). 
 
 Exceptions, which may be either dilatory or peremptory 
 (4, 13, 8). An example of a dilatorj' exception would be the 
 plea of prematurity; of a peremptory exception, a plea that 
 bars the action perpetually (4, 13, 1-10). Replication thereto 
 (4, 14, 1-4) and further pleading. 
 
 Interdicts, or special orders by magistrate, prohibitory, resti- 
 tutory, and exhibitory, the forms of which may be represented 
 by injunctions and writs of habeas corpus (4, 15, 1-8). 
 
 Methods of preventing rash suits or frivolous defenses. The 
 affidavit of merits (4, 16, 1-3). 
 
 The duty of judges and the form of decrees (4, 17, 1-7). 
 
 The prosecution of crimes (4, 18, 1-11). 
 
 LECTURE XX. 
 Review of four next preceding lectures, with class debate. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 LECTURE XXI. 
 
 The Law of Italy. 
 
 What we now call Italy may be considered as specially and 
 immediately the successor of Kome in matters of law. The 
 history of Italy, for the purpose of these studies, may be divided 
 into four periods: 
 
 1. The period of barbarian conquest and domination. The- 
 odoric the Great and his Ostrogoths, A. D. 489-526. The edict 
 of Theodoric, A. D. 500 or 506 (Muirhead, p. 371). The recon- 
 quest of Italy for Justinian by Narses, A. D. 553, and the pre- 
 dominance of the laws of Justinian. The Lombards under 
 Alboin, A. D. 568-573; The fall of the Lombard po*er, A. D. 
 774. The crowning of Charlemagne as Emperor of the Romans, 
 A. D. 800. 
 
 2. The second period, extending to about the middle of the 
 14th century, may be termed that of communes, republics, and 
 maritime cities. Rise of the five great powers— Milan, Venice, 
 Florence, the Papal States, and Naples. 
 
 3. The third and succeeding period one of political decadence, 
 though illustrated by much that was interesting in a,rt, science, 
 and jurisprudence. 
 
 4. The fourth period may be said to extend from the rise of 
 the House of Savoy to the present time. Under the leadership 
 of that house and with the patriotic labors of such men as 
 Cavour and Garibaldi, Italy became reunited into the present 
 nation. 
 
 Roman law remained in Italy, and its study was revived in the 
 twelfth century with the renaissance of other studies. Schools 
 of Bologna, Padua, Pisa, Pavia, and other cities, with scholars 
 from other countries as well, such as England. The school of 
 Bologna. Irnerius of Bologna as a leader. Azo ; Francesco 
 Accorso and his son of the same name. The latter lectured at 
 Oxford about A. D. 1276. The school of Bartolus, 1350. The 
 school of the eighteenth century. Gravina ; Vico of Naples and 
 7h (43) 
 
44 COURSE IN COMPARATIVE JURISPRUDENCE. 
 
 his theories of legal history and development, which in a sense 
 lie at the foundation of the modern historical method. 
 
 Influence of the French law under Napoleon I. Code of 
 Naples, 1819. Code of Sardinia, 1827. The Code of Italy of 
 1866, illustrated by extracts. It resembles the Institutes of 
 Justinian and of Gains in its arrangement as to the law of per- 
 sons, property, and obligations. The law of suretyship translated 
 from this code, and the resemblances to English and Spanish law 
 pointed out and differences noted. 
 
 LECTURE XXII. 
 Law of Spain, Puerto Bico, Cuba, and the Philippines. 
 
 Present importance of the subject. Sketch of early history 
 of Spanish Peninsnla. Phoenician and Greek colonies. Roman 
 domination and era of municipalities. The Visigoths in the 
 4th century, A. D. The Visigathic kingdom of the 5th century. 
 The Breviary of Alaric II in the 6th century, a codification of 
 Roman law as then existing, prior to Justinian, for the people 
 of southern Gaul and northern Spain. The Fuero Juzgo, or 
 Code for Judges of the 7th century, praised by Gibbon and Guizot 
 and criticised by Montesquieu. It is of historic value as repre- 
 senting an amalgamation of Roman law and Teutonic customs. 
 The ruin of the Visigothic kingdom in the 8th century by Saracen 
 invasion. The building up afterward in northern Spain of 
 Christian States, such as Castile, Aragon, and Navarre, and the 
 growth of local rights under Fueros or charters. The Saracens 
 expelled in 15th century. 
 
 Beginning of mediseval codes in Spain. The Fuero Viejo, or 
 ancient code of 10th century. The Fuero Real of 13th century 
 resembling the Institutes of Justinian. The Siete Partidas, 
 promulgated 1348 by Alphonso II. It is arranged in seven parts, 
 as its name implies. Synopsis of its contents. Reference to its 
 translation into English by Moreau and Carleton, 1820. The 
 New Recopilacion of 1567, under PhiUp II. The Novissima 
 Recopilacion of 1805, under Charles IV. The prominence of 
 Spanish jurists, Ayala and Suarez. Commercial law in Spain 
 and its high character. The Barcelona code of commerce, called 
 El Consulado or Consolato del Mare, 1258. The Code of Com- 
 
COURSE IN COMPAHATIVE JUllISPIiUDKNCE. 45 
 
 meroe of 1829. Colonial laws and decrees. Eecopilacion de 
 Indias, 1680. 
 
 The free cities of Spain and Barcelona as an example. The 
 idea of an elected monarch bound to obey the law. The rights 
 of the Cortes in Aragon. The writ of manifestion resembling 
 habeas corpus, and probably imitated from the exhibitory in- 
 terdict of Roman law. ■ 
 
 The modern codes of Spain. The Code of Civil Procedure of 
 1881. The amended Codeof Commerce of 1886. The Civil Code 
 of Law of 1889. The Hypothecary Code of 1893. Analysis of 
 their different provisions. They have been extended within the 
 last decade to Puerto Rico, Cuba, and the Philippines, and are 
 the present law of those regions. 
 
 The example of the Louisiana Purchase of 1803, which had 
 been a Spanish colony for about forty years prior to the cession 
 to the United States. In the Territory of Orleans, constituting 
 nearly tlie present State of Louisiana, while we promoted a re- 
 form in criminal jurisprudence and based it on common-law 
 principles, we wisely refrained from interfering with private 
 law in civil matters. 
 
 The excellence of Spanish law as a scientific development. 
 The Code of 1889 superior in some respects to the Code Napo- 
 leon. The trouble has been in the administration of justice in 
 Spanish colonies, which we are called on to carefully consider 
 and reform. 
 
 Methods of study of Spanish law as a practical matter. 
 
 LECTURE XXIII. 
 The Law of Germany. 
 
 In noticing the development of the law of Germany, we 
 should recall the leading events in its history ; the character 
 and customs of the primitive Teutonic peoples ; the effect of 
 their coi>flicts with Rome ; the work of Charlemagne and his 
 successors ; the meaning of the Holy Roman Empire ; the barba- 
 rian laws ; the institution of Feudalism, and the influence of the 
 Church. 
 
 The reception in Germany of Roman law in the sixteenth 
 century. It was the Roman law of the Renaissance, revived 
 by the jurists of Italy, and spreading thence over Europe. 
 
4S CODKSE IN COMPAHATIVE JDEISPKUDENCE. 
 
 There was no strong central power then in Germany to protect 
 and develcfp national law, and so the revived Roman law came 
 in as a scientific foundation. (Sohm's Institutes, p. 1 ; Howe's 
 Studies in the CJivil Law, p. 318.) 
 
 The Codes of Germany arid other Teutonic people. Code of 
 Bavaria, 1756; of Prussia, 1/94; of Austria, 1810; of Holland, 
 1838. 
 
 The new Code for the German Empire, which is to take effect 
 January 1, 1900. Its spirit as compared with the Roman sys- 
 tem received in the sixteenth century. Views of Professor 
 Sohm, as expressed in The Forum for October, 1899. He was a 
 member of the commission that prepared this code. Roman 
 law will be retained in Germany as a university study, as his- 
 torical and fandamental. The national law of Germany, how- 
 ever, will be found in the new code. Henceforth German 
 juristic science will be devoted to the elucidation of this new 
 code, and probably in the same way that the Code Napoleon 
 has been the subject of so much learned and acute commentary 
 in France and Belgium 
 
 Analysis of the new German Code. It consists of five divis- 
 ions or books, the arrangement of which differs somewhat from 
 the method of Gaius, of the Institutes, and of the other codes we 
 have considered, such as those of Italy, France, and Spain. The 
 first book contains general dispositions as to persons, whether 
 natural or juristic, including status, capacity, domicile, absence, 
 and death. It also treats in a general way of contracts by per- 
 sons, of agency, prescription, the right of "self-help," the effect 
 of prescription, and the suretyship of one person for another. 
 
 The second book takes up the subject of obligations in the 
 first instance as arising from contract, and the various methods 
 by which obligations are extinguished ; specific contracts are 
 dealt with, such as sale, gift, lease, factorage, partnership, alea- 
 tory contracts— "futures," where there is no purpose of actual 
 delivery, being declared invalid— suretyship, cpmpromise, and 
 the assignment of rights. Torts are also dealt with as a source 
 of obligations. 
 
 The third book contains specific provisions concei-ning the 
 law of things or property, whether real or personal ; the various 
 methods of acquisition and loss of each, of delivery, prescrip- 
 tion, mixture and accession, reduction to ownership, as of wild 
 
COUKSE IN COMPARATIVE JURISPEUDBNCE. 47 
 
 animals, and finding. It also treats of qualifications of »wner- 
 sliip, servitudes, contracts to purchase as a burden, mortgage, 
 and pledge. 
 
 The fourth book deals with family rights, betrothal, marriage, 
 divorce, relationship, and guardianship. 
 
 The fifth book deals with succession or inheritance, whether 
 legal or testamentary ; the form and execution of wills, whether 
 by public act or in olographic form ; the limitations on the dis- 
 posable portion, and the right to disinherit unworthy heirs for 
 lawful reasons. 
 
 LECTURE XXIV. 
 The Law op Feance. 
 
 It is but natural that the Roman law should have contributed 
 largely to the present law of France; yet there are other ele- 
 ments to be considered. As pointed out by Ortolan in his his- 
 tory of Roman Legislation, we must not forget the barbarian 
 law, the feudal law, the canon law, and the customs. 
 
 Influence of the Edict of Theodoric the Great. Influence of 
 the Breviary of Alaric II in southern Gaul, which was also u, 
 part of the Visigothic domain. The Lex Romana Burgundi- 
 onum, sometimes called Papinianus, prevailing in upper Alsace, 
 Burgundy, Franche-Compt^, and Switzerland. (Muirhead, 371- 
 373; Eschbach, 228.) 
 
 The laws of the Saliau Franks ; the Ripuarian Franks ; the 
 Alemannl ; the Bavarians ; the Burgundians, and the Frisians. 
 
 The capitularies, being ordinances, or what in Rome might 
 have been called constitutions, issued by the kings of the first 
 and second race, in the national assembly of the Franks. 
 
 The early division of France into the Pays de droit ecrit and 
 the Pays de coutumes, the former, or southern portion, retaining 
 Roman law, the latter, or northern portion, having a system 
 largely influenced by the custbms of the barbarian invaders. 
 Yet the Roman law, though greatly modified down to 1789 by 
 interpretation, jurisprudence of the parliaments, and royal ordi- 
 nances, remained as a sort of underlying common law in all 
 France. (E?chbach, p. 195.) 
 
 The canon law and the feudal law. 
 
 The ordinances of the kings of the third race, fi-om Hugh 
 
48 COURSE IN COMPARATIVE JURISPRUDENCE. 
 
 Capet to the revolution of 1789, among which we may notice 
 that of Louis XIV, concerning maritime law and commerce. 
 
 The codifications under Napoleon. Their importance and in- 
 fluence. The Constituent Assemhly in 1791 promised the prep- 
 aration of a civil code which should be uniform throughout the 
 whole kingdom, but nothing was then done. The project re- 
 vived in 1793, a commission appointed in 1800, a draft printed 
 in 1801, and the Code Civil promulgated as a whole in 1804. 
 The other codes of France are five in number — of civil procedure, 
 commerce, criminal law, criminal procedure, and forests. 
 
 Analysis of the French Civil Code with its existing amend- 
 ments. Mainly a code of private law in civil matters. Its 
 general arrangement like that of the Institutes of Gains and 
 Justinian, so far as civil matters are concei'ned. 
 
 It contains three books. The preliminary title ti-eats of laws 
 and their promulgation and efliect. The first book treats of per- 
 sons and personal relations, status, domicile, absence, marriage, 
 divorce (as now allowed), paternity and filiation, adoption, 
 paternal authority, minority, guardianship, emancipation, ma- 
 jority, interdiction, and judicial counsel. The second book 
 treats of things— property and the different kinds of ownership, 
 whether perfect or modified — possession and accession, usufruct, 
 use, habitation, and servitudes and other burdens. The third 
 book continues the subject of acquisition of property by succes- 
 sion, by donation and testament, and by the efiect of obliga- 
 tions. It discusses obligEttions and their sources in contract, 
 quasi-contract, offense and quasi-offense, and the operation of 
 law, and the different kinds of obligations and their extinguish- 
 ment. It lays down rules for their proof. It then treats of mar- 
 riage contracts and their effects, and follows this with specific 
 treatment of sale, exchange, lease, partnership, loan, deposit, 
 aleatory contracts, mandate, suretyship, transaction, execution 
 against the person, pledge, privilege and mortgage, proceedings 
 by creditors against property of debtor and the rank of credit- 
 ors, and finally the rules of prescription, whetlier as a means of 
 acquiring property or barring the right to enforce an obligation 
 by suit. 
 
COUESE IN COMPAEATIVE JURISPRUDENCE. 49 
 
 LECTURE XXV. 
 
 ENamsH Law. 
 
 English law of today is like a composite photograph to which 
 many features have contributed to form one picture. It is a 
 body of doctrine which has grown from many sources of nutri- 
 tion. We must not exaggerate the effect on English law of the 
 systems we have discussed in the previous lectures ; taut, on the 
 other hand, we must recognize the facts of the case, and respect 
 the truths of history. 
 
 The Roman domination in Britain for about 400 years. The 
 Anglo-Saxon conquest. ' The customary law of the Anglo-Sax- 
 ons. The influence of the Christian Church. The Norman 
 conquest. The influence of clerical judges and chancellors. 
 The renaissance of studies in the twelfth and thirteenth cen- 
 turies. The writers of law books, and Glanvill and Bracton as 
 examples. The custom of the King's court, as influenced and 
 modified by clerical judges learned in the civil and canon law. 
 The law merchant. The law of admiralty. Case of the J. E. Rum- 
 bell, 148 U.S., 1. The association in England of probate, divorce, 
 and admiralty. Doctors' Commons. The law of General A ver- 
 age. Barnard vs. Adams, 10 How., 270. The principles of 
 res adjudicata. The doctrines of equity and methods of equity 
 procedure. Remarks of Maine, An. Law, p. 43. The law of 
 juristic persons, corporations, and pious uses. Inglis vs. Trus- 
 tees, 3 Peters, 100, 139. The sacredness of a man's house. The 
 practice in habeas corpus. The law of bailments. The doc- 
 trine of occupancy, accession, and adverse possession. 
 
 The presumption of innocence and right doing. Coflftn vs. 
 U. S., 156 U. S., 432. The origin of juries. 
 
 Remarks of Lord Holt in Lane vs. Cotton, 12 Modern R., 
 482; of Chief Justice Tindal in Acton vs. Blundell, 12 Meeson 
 and Welsby, 353, and the opinion in Bechervaise vs. Lewis, 
 L. R., 7 Common Pleas, 372. 
 
50 COURSE IN COMPARATIVE JURISPRXIBENCE. 
 
 EEFEEENCES. 
 
 Hearn : The Aryan Household. 
 
 Maine's Works. 
 
 J. D. Mayne : Hindu Law and Custom. 
 
 Seebohm : Village Community in England. 
 
 Eschbach: L'Etude du Droit. 
 
 Dareste : Etudes d' Histoire du Droit, La Science du Droit en 
 
 Grece. 
 Schnlte : Law and Institutions of Germany. 
 Fournier : Translation into French of same. 
 Viollet: Histoire du Droit Civil Franpaia. 
 Hue : Italian Civil Code and Code Napoleon. 
 Lev6; The Spanish Civil Code of 1889, in French, with notes. 
 Walton : Same in linglish. 
 Moreau and Carleton : The Spanish Partidas. 
 White : The Recopilacion. 
 Muirhead: Roman Law, 2d edition. 
 Sohii : Roman Law. 
 Hunter : Roman Law. 
 Poste: Gains. 
 
 Sandars : Institutes of Justinian, with Hammond's Introduction. 
 Howe : Studies in the Civil Law. * 
 Jenks : Law and Politics in Middle Ages. 
 Wilson, W. . The State, 2d edition. 
 Coulanges : The Ancient City. 
 Social England: Edited by H. D. Traill. 
 
LECTURES ON COMPARATIVE JURISPRUDENCE. 
 
 LECTURE XXVI. 
 L.w IN THE Two Americas. 
 
 History of law in Canada. Introduction by the French of 
 the laws and ordinances of France and the custom of Paris. 
 Cession to England in 1763. Introduction of English law in 
 criminal matters (14 Geo. Ill, ch. 83). Division into Lower and 
 Upper Canada (31 Geo. Ill, ch. 31). Reunion in 1840. What 
 was known as Lower Canada retained the French system as fun- 
 damental in private law in civil matters. Civil Code of Lower 
 Canada of 1866 contains three books resembling the Code Napo- 
 leon, and a fourth of commercial law. The legislature of Upper 
 Canada adopted English law as a basis. The establishment of 
 the Dominion in 1867, the additions to its domain down to the 
 present time, and its system of public and private law. 
 
 English law in the United States. Its introduction into the 
 thirteen Colonies. Its adoption or recognition in the " common 
 law " of States and Territories established since our War of the 
 Revolution. How far the general principles of equity, admi- 
 ralty, the law merchant, and the ecclesiastical law were also 
 brought in. Views of the courts: in Massachusetts, Com. «s. 
 Knowlton, 2 Mass., 530; North Carolina, Crump w. Morgan, "Si 
 Iredell, Eq., 91 ; Vermont, Le Barron vs. Le Barron, 35 Vt., 364 ; 
 Pennsylvania, Pennook's Estate, 20 Pa. St., 268 ; Illinois, Cook 
 vs. Eenick, 19 Ills., 598; Michigan, Matter of Lamphere, 61 
 Mich., 105; Wisconsin, Coburn vs. Harvey, 18 Wis., 147; New 
 Mexico, Browning vs. Browning, 3 New Mex., 371. 
 
 History and development of law in Mexico. Its Spanish 
 origin. The present constitution of that Republic. The Federal 
 Civil Code and its adoption by most of the States. General 
 view of the law of Central and South America. 
 
 LECTURE XXVII. 
 General review of the course.