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ly _.„ ^ Cornell University Library 
 K 230.F49 1893a 
 
 Lectures on the history and evolution of 
 
 3 1924 016 934 634 
 
 
Lectures on 
 THE HISTORY AND ETOLUTICN 
 OF THE LAW. 
 
 BY 
 FRANCIS M. FINCH. 
 
/3<-l ^o. 
 
page 
 
 Introductory Address (18S5) 1 
 
 I. Introductory 21 
 
 II. Rudainental Relations 49 
 
 III. The Patriarchial Systeru 79 
 I?. Tort and Posseseion 111 
 ?. Status and Severe if;^nty 158 
 
 VI. Transfers of Possession 170 
 
 VII. The Mosaic Law 1S8 
 Vill. The Laws of Menu 251 
 
 IX. Lycurgus and Solon 262 
 
 X. The Salic Law 296 
 
 XI. The Twelve Tables 558 
 
 XII. The Praetor 375 
 
 XIII. The Coming of Contract 409 
 
 XIV. Justinian 457 
 XV. The Roman Evolution 466 
 
 XVI. The Anglo-Saxons 505 
 
 XVII. Feudalism 545 
 
 XVIII. Seisin 583 
 
 XIX. Lord and Vassal 622 
 
 XX. Sir Edward Coke 655 
 
 XXI. Elackstone to Kent 688 
 
 XXII. The Coiffliion Law 732 
 
Ir.tcrducto^ry' Mdr«ff! (1895) 
 
 X. Introductory 
 
 i ' 
 
 111. // \y 
 
INTRODUCTORY ADDRESS . 
 1893. 
 Young Gentlemen; 
 
 It is the custom in this department of the Univer- 
 sity, at the opening of the school year, to welcome you to 
 its privileges and duties, and lead the way over the roads 
 we are to travel. All of us, I am sure, have enjoyed the 
 rest which, in greater or less degree, the warm summer gives 
 to those who meet Nature in the open air, and cheerfully let 
 her have her way. For some of us it has restored imperilled 
 health; for most averted the weariness and danger of unrest- 
 ing work; and for all added strength and vitality to hearf 
 and brain. Upon the new resources thus obtained we are once 
 more to draw; and I hope that all of us may pass the approach- 
 ing winter snows, and the opening buds of a new spring, with 
 every duty faithfully done, with no opportunity neglected, 
 and with the consciousness that never a moment due to our 
 work has been wasted or misapplied. 
 
 It was my privilege last year to welcome the student 
 body assembled herro to the comfort and c<^>nvenienGe of this 
 new building, and to its first use and occupation. I am glad 
 to observe how the history of the year proves that the struc- 
 ture was occupied by geM^emen, and that no marks of vandalism 
 disfigure its benches or its walls, or cast discredit upon 
 those who studied beneath its roof. The worthy example I am 
 confident will be approved and followed. It is my privilege 
 to-day to further welcome yoi'. to the riches and wealth of a 
 
marvellous addition to our Library, due to the munificence 
 of two ladies desirous to aid, as they happily expressed 
 it, "in making good lawyers out of noble men." Early in the 
 year the useful gift was made and accepted with such grati- 
 tude and thanks on our part as we were able to express. But 
 the gratitude of words is less than the gratitude of deeds; 
 and we can best show our appreciation of the gift and our 
 thankfulness to the givers by its patient and intelligent 
 use, and a persistent and thoughtful appropriation of the 
 stores of legal knowledge garnered in its volumes, "^o its 
 multitude of cases adjudged, to its revelation of the growth 
 and progress of jurisprudence, to its discussions and dis- 
 closures of legal principles, and to its varieties of rea- 
 soning and reflection, we tender you a welcome both hopeful 
 and sincere. 
 
 But beyond these words of welcome it has been my 
 habit to pass on to more serious thoughts, and int>roduce the 
 labors of the winter with some general study of the law, con- 
 sidered as a whole, and in ^he aggregate, and apart from 
 its separate and several doctrines and details. 
 
 Two years ago I endeavored to show how the law grows, 
 by what process were evolved from fundaraental principles, 
 so generally admitted as to have become almost legal axioms, 
 a new body of doctrine, applicable to new and changed con- 
 ditions, and I took as appropriate illustrations the lay; of 
 
electrical industry and invention, and that of elevsted rail- 
 roads in city streets. Briefly tracing that new and neces- 
 sary growth I sji^ought to disclose what should be the main 
 drift and characteristic of your study and our instruction: 
 seeking to impress upon those who were then before me the im- 
 perative need of ' a clear mastery of legal principles, and of 
 capacity to reason from and about them, as distinguished 
 from a mere memory of legal rules laid away like a catalogue 
 or a calendar- One year ago I called attention to the wide 
 sweep of general knowledge which the law requires and over 
 which its sovrelgnty extends: seeking to show that no de- 
 partment of human industry or invention, no relation of men 
 to each other, no rules of government or theptate, excaped 
 its regulation and control: so that in the progress of his 
 professional life it became the duty and necessity of the 
 thorough lawyer, step by step and day by day, to study and 
 understand almost everything. 
 
 To*day I break ground in a new direction and open 
 the way to a new investigation. The duty, after a fashion, 
 seems forced upon me, and has originated in a formal in- 
 dictment filed by a formidable body against the system of 
 instruction adopted by all the lav/ schools of the country - 
 The complaint is not so much about what we have done as 
 what we have omitted to do; a criticism of method rather 
 than of purpose or of aim; a substantial charge that all 
 of us in the effort to teach the technical and practical 
 
doctrines of the law ha,ve lost sight of and wholly neglected 
 Its scientific character and historical growth and evolution. 
 A conmiittee of the National Bar AssociatJoh, at its meeting 
 in Saratoga last year, made a formal report upon the sulaject 
 of legal education, after a very earnest and careful study 
 of methods, and a full investigation of the systems adopted 
 in England and on the continent. The scope of the inquiry 
 was wide, the effort thorough and exhaustive, and the re- 
 sult one which demands our thoughtful attention; for the 
 National Association does to some extent represent the uni- 
 ted voice and best judgment of the American Bar, and the 
 conclusions of its committee, however disposed of, are not 
 to "be lightly treated or carelessly disregarded. I have 
 studied the report with patient attention, and taken liberal 
 time for reflection upon it, deeming it a duty to learn what- 
 ever it is p@ssible for me to know which may bear upon the 
 methods of our teaching. The report assents, speaking of law 
 considered as a science and of the value of the historical 
 methods: "Much as has been done recently in England by Sir 
 Henrj'- Maine and his followers in this direction, it must 
 be owned that we in the United States and even our English 
 cousins are a century behind the Continent in appreciating 
 the value of the historical method of study as applied to 
 the moral and jural sciences. In our law schools it seems 
 to be quite unknown, as much so to the teachers as the stu- 
 dents. Yet foreign experience has left us no doubt of its 
 
adaptation to those elementary notions of lav^ for which our 
 other tried methods have proved almost complete failures-" 
 The report further adds that "the most important recoiumenda- 
 tion we can make is the- abandonment of the present method 
 of teaching the law mainly "by distinct topics, at least dur- 
 ing the first year of the course, and the substitution for 
 it of a careful and systematic study of the system as a 
 whole after the European method." 
 
 The Committee admit that there are great difficulties 
 in the way of domesticating in our American schools the 
 historical and scientific methods prevalent in Europe. It 
 is aciinowledged that we have no textbooks framed upon such 
 lines, and that those which we possess are valueless for the 
 purpose indicated: indeed--it is intimated--are valueless 
 for any purpose beyond the mere office of a digest. The 
 remedy suggested is that we who teach should frame our own 
 textbooks, in the form of a manual, developing the law his- 
 torically and scientifically as a complete system, and which 
 we should put into the hands of our students as the basis, 
 at least, of/their first year's study. In view of what the 
 report had already declared as to our total ignorance of the 
 method recominended, the encouraging intimation appears to 
 be that it is possible for us to learn it. 
 
 A further difficulty is wrestled with and supposed 
 to be overthrown. It is confessed that only a small minor- 
 ity of beginners enter these schools "with minds so trained 
 to abstract thoughts as to readily take in and appropriate 
 
a full and systematic treatment of the rationale of law suf- 
 ficient to enable them to use the most rudimentary conceptions j" 
 "and that the proposer of suc|i a plan of instruction might "be 
 "fortunate if he gained no worse reputation than that of a 
 harmless enthusiast, wasting his own time, and leading stu- 
 dents to do the same." Assuredly, that is exactly the ob- 
 jection which our experience as teachers v/ould promptly sug- 
 gest, which our m^hole student body would be apt to frame into 
 a protest, and which is embodied for us in the statement that 
 we seelc here to make good lawyers rather than marvellous 
 meta.physicians. And yet I should deal very unjustly with the 
 recoimnendation, and lose hold of what I c.nceive to be the 
 valuable element in it if I failed to put before you the 
 answer made, and to see whether the method suggested may 
 not, to some extent, supplement our existing plan, and 
 mould its separate parts and several topics into one clear 
 and consistent whole. 
 
 And, first, I recur to the answer made. The Com- 
 mittee ad lit an impregnable force in the objection if by 
 the historical method is meant merely the study of anti- 
 quarian decisions hastily and briefly reasoned and often 
 inconsistent with each other. But against any sucji construc- 
 tion the Report firmly protests; and in pretesting indicates 
 what in its view the historical method really is. It goes 
 back to the dawn of civilization and follows along the line 
 of progress the actual and changing relations of men with each 
 
other, and In those relations a.s evolved and conceived finds 
 the fundamental principles upon which the law is built end 
 which are the vital elements of its growth. The principles-- 
 the Comiaittee insists--are, so to speak, crystallized in cer- 
 tain legal terms, end whoever rightly comprehends those 
 terms in their historic and scientific force and meaning 
 will have mastered and will understand all the fundamental 
 principles of the law. 
 
 And here I think we reacli solid ground uppn which 
 we may safely stand: for any method which reveals and ex- 
 plains the fundamental principles upon which positive law 
 rests is useful and to be coveted: since nothing in all 
 my experience has been more difficult to discover and de- 
 fine than these same fundamental principles. ¥e recur to 
 them continually, we reason from and about them daily, they 
 surround us like an atmosphere, and we hold a,nd iinow them 
 almost unconsciously and by a sort of professional instinct :- 
 but take fifty successful lawyers, and ask them to write 
 out the fundamental principles of the law and I venture to 
 predict that no two of them would agree. Principles--yes: 
 their papers would be full of them, --but fundamental, es- 
 sentials-lying at the foundation;- these would bring as 
 many answers as tnere were men. 
 
 It is agreed--as I have said--that these fundamental 
 conceptions reside and inhere in certain words or terms 
 in common and cuntinual use, but what those words or terms 
 are, end precisely what they do and do not mean has been 
 
the subject of an induary sometimes, indeed generally, quite 
 abstract and metaphysical, and ending in very discordant 
 viev/s. Thus, Austin, --v/ho easily stands at the head of the 
 analysts and philosophers, --whose volumes have in them 
 more headache to the page than any that I have ever studied: 
 Austin,--! must beg the Committee of the Bar Association to 
 reniember, with all his historical and scientific skSll and 
 ability was a total and terrible failure as a lawyer, and in 
 a suit at the bar would have been an easy victim for any 
 member of the senior class before me; Austin, deteraiines 
 that these fundamental principles reside in thewords 
 Duty, Right, Liberty, Injury, Punish ment, Redress ;t^at 
 these are principles, notions, and distinctions, necess- 
 ary to a coherent system of la.w; and with the distinction 
 between written and unwritten law, between Rights availing 
 against the world at large and those only against xjersons 
 specifically detewained, between obligations which arise 
 from eontracts, those which arise from Injuries and those 
 which arise from incidents that are neither Contracts nor 
 Injuries, and the division of Injuries into Civil Injuries, 
 into Crimes, into x'orts, and into breaches of Obllcation,- 
 (Austin's Juris, v. 2 p. 1108-9) — these constitute the 
 necessary foundations of the Science of Jurisprudence. 
 Well, gentlemen, I thinlc they do. but in their abstract form 
 I scarcely see how any of us are the wiser for the Know- 
 
ledge or discern our way any tlie more clearly. Take the 
 one word Duty, and yoa will find yourselves driven to a 
 dismal search for the blind line "between ethical and legal 
 duties, between what is a moral and what merely a legal re- 
 quirement. I do not think in a law school we should begin 
 with such abstractions, a.nd happily the Committee of the 
 Bar Association do not recommend it, but would have ne go 
 back,': to the actual concrete relations and pick up our ab- 
 stractions later and on the way.' This is what they sa-y,-- 
 "The other or modern view of the nature of law leads as 
 directly to a natural and practical plan of elementary 
 study as the foraier did to a wrong one. Its truth as s 
 theory is shown by its correspondence with the actual facts, 
 and this again suggests the true method of teaching. The 
 law regulates the relations of persons to the State or to 
 eachother. Confining ourselves here to the latter for il- 
 lustration, we find that its subject-matter is those relations 
 between persons which are the necessary result of their 
 dwelling together in a state and maintaining social and 
 business relations with each other. It therefore exists 
 before the law and is regulated not created by its rules. 
 Its classification does not depend on rules prescribed but 
 on the nature of human actions and interest. It formulates 
 these relations as reciprocal rights and duties and most 
 of it-s rules express the natural results of those concep- 
 tions." That is to sa;,'-, the obvious view of the Committee 
 
is that instead of 'beginning the study of la.w upon purely- 
 abstract elements we may, by the historical method, te.ke 
 them in the concrete, take them as they grew upon facts and 
 incidents, take them as they camie in the progress and growth 
 of civilization. 
 
 TOaat then shall we say about this method and the earne 
 est recommendation to adopt it^ I take you, young gentlemen, 
 into our confidence, for while we ought to judge about the 
 matter better than you, yet it is not tsdr to disregard the 
 thought v/ith which you may consider it. For myself--I am. 
 not altogether sure, end yet I have a growing conviction 
 that we may usefully avail ourselves of thi-fe method without 
 in any degree changing or abandoning our present modes of 
 instruction. If/hy may not the historical method run parallel 
 with the study of separate topics, and so gather them up 
 as we go along, show their origin and relations to each 
 other, and give the student a better and firmer hold upon 
 elemental terms and conceptions? If life and health are x 
 spared to me, I suspect that effort should be mine, for when 
 I come ajoiong you permanently, if I shall, which I hope I 
 soon may, I shall come without any fixed habit of instruction, 
 without any laborious preparations to be abandoned, entirely 
 satisfied and contented with the line and the manner of in- 
 structjon adopted here, but with full liberty to shape duty 
 
 and work into such forms as may aid and help and throw light 
 upon the daily and unchanged course of instruction which we 
 
-11- 
 
 have steadily end I think successfully pursued. This is 
 not exectly the Continental or the English method. l\o--Eut I 
 am enough of en American not to think e thing desir sble 
 merely because it is foreign , and hardly so fond of Eng- 
 land 8S to be zealous in copying her fwys:- 
 but at least I think we may try, without that abandonment 
 of our modes of teaching -whjch the Committee edvise, to take 
 from the foreign method and assimilate with our own some 
 of its valuable elements. 
 
 For I do not at all agree that our methods of study 
 have been total failures. The gentlemen of the Committee 
 became very good lawyers without having been fed in their 
 youth with the Continental philosophy. Indeed this year 
 we have had an object-lesson which scarcely indicates a 
 failure either of English or American methods. Before a 
 court of arbitration sitting in the capitol of Prance 
 questions of international lev? over the preservation of the 
 fur seal in Bering sea were argued before men largely trained 
 on the Continental system. They themselves bore testimony 
 to the magvellous learning and ability displayed by the 
 T^nglish and American counsel, and would perhaps have not 
 been proud of their own com.paratlve capacity in spite of 
 their historic and scientific training. 
 
 Wo, gentlemen, the American system is not a failure 
 and should not be abandoned. The conditions of life--the 
 
-12- 
 
 means of su.ccess--the roads to fortune are different here,- 
 v/idely different from those on the Continent end a method 
 successful there might easily prove a failure here. As 
 David Dudley Field tersel:/ puts it, "in Englsnd and Ameri- 
 ca the study of law concerns itself chiefly with wh&t has 
 been and what is law, while on the Continent they study what 
 lev; ought to be." And yet it is an American characteristic 
 to look the world over for whatever is good or useful or 
 true, and having found it, to weld it into our life and 
 thought in some pra.ctical and independent way. And I can- 
 not resist the conviction tha.t there is that in the recom- 
 mendation of the Committee and in the experience of the Con- 
 tinental schoolskiiwtch we may usefully interweave with our own 
 methods. At all events, in some general way I may indica.te 
 the lines upon which I think the experiment s'should proceed, 
 
 s 
 
 although the ISng and hard study v/hich it involves in the 
 future may disclose that ignorance of the American teacher 
 to which tne Committee so gracefully refer- 
 
 If I am not mistaken, the whole body of the law as 
 we know it lay, as a germ or seei^, in one single conception 
 or idea, exxjressed ^y one single word used in its broadest 
 sense, ?nd from y/hich every doctrine that we nov/ h?ve may 
 be logically and systematically evolved along thr line of 
 advancing civilization. That conception and that word is 
 ownership--the dominium or resillius of the Institutes. 
 
-13- 
 
 llaile I do not know that any authority has stated this pro- 
 .position in the broad and bold terms which I have just used, 
 yet I era not frightened by its tremendous sweep or trie possible 
 clamor of doubt or denial: for no less b master of Jurispru- 
 dence than the wise and learned Bentham has said of Possession 
 which is less than underlies Ownership these remarkable words, 
 viz; "Everything which is most precious to a man may depend 
 upon this question; his property, his liberty, his honor and 
 even his life." I need not and do not go so far, so that 
 if I sm bold the English sage was bolder- But to return to 
 the ide& of Ownership. It will be interesting to trace the 
 origin of this conception as applied to things and persons 
 alike for it marks the beginning of Civilization and the 
 framing of a political society. Back of ijt, in the dense 
 darkness, there was nothing but iorce,- the brutal brawn of 
 the stronger--the spear and club of the Chief,- superior 
 onlj- by means of tougher muscle and uglier will. He took 
 what he pleased; he kept what he took; there were no rights 
 but only his dominant and arbitrary will. All around him 
 were either parasites, flattering his prowess to shield 
 themselves behind his strength--ti"ie nascent aristocrats 
 and nobility of a later period;- slaves, v/ho were wife and 
 children or captives taken in war and beaten into drudgery: xe 
 and enemies to be fought with and tortured or killed. But 
 out of all this darkness slowly and painfully emerged the 
 idea of Onership as a right of the individual. How it grev/ 
 
-14 
 
 we can see. It came first from the fact of Possession 
 re-enforced by the facts of construction, Improvement or 
 Discovery. Even a s8V8.ge Chieftain would see in a follower 
 who had made and strung his own bow and pointed and feath- 
 ered his own arrows, and kept them in his own custody and 
 use for the war or the hunt, something in the nature of a i^lgh. 
 Right v/hich even Force should respect, which gradually force 
 did respect, and which became the habit end the custom of the 
 tribe. Soon individuals discovered, for themselves loca- 
 tions for the hut and the wigwam, loy the cool spring or in 
 the sheltered hollow, and built for their use with poles 
 wattled, or thatched what becam^e their temporary homes. 
 Here again was a Possession beyond that of movables because 
 that of land:- the hut upon it sign and token of en occupant, 
 maintaining his possession at first \)j force but later to 
 some extent protected in it by the nascent idea of a right 
 born of priority of occupation and labor and improvements. 
 To this day possession raises a presumption of ownership 
 and is its sign and token. But this budding Ownership 
 took on new phases. Of two Indians, one possessing a 
 surplus of weapons and the other more ponies than he needs 
 to use, the former proposes pn exchange end here occnars a 
 barter or the crude from of a Contract of Sale. Two savafees 
 trade tomahawks, and in the act lay the foundations of the 
 law-merchant and the commerce of the world, for when wampum 
 
-15 
 
 or cov;rie shells or horses or cattle "begin to serve ss 
 money a sale as distinguished from an exchange occurs, 
 since it is involved in the ides of ownership and in that 
 of the possessory right that the possessor may transfer 
 possession and the owner part with title. Hov; one lends 
 his spear or axe end so creates a bailment; or another 
 buys the weapon and promises to pay for it in the future, 
 when he can rob a straggler or plunder a village--and so 
 frames in act the germ of what we recognize as a contract, 
 but which ca.rae so slowly and by such halting and awkward 
 steps as to av/alce our v;onder: how the ownership extends 
 after death to the children or goes as the dead v/arrior 
 directed and according to the mere habit or custom of the 
 tribe until later it takes the form of a transfer by descent 
 or will, it is not difficult to see. And so we may go on 
 through the law of things quite sure that the conception 
 of ownership underlies It all. 
 
 But that conception Involves tne crude form of a 
 Right and that its correlative Duty since what is a Right 
 in one Imposes the duty of respecting it in others, and the 
 two abstractions of Right and Duty begin to form themselves 
 in the human mind. 
 
 But they may be disregarded; indeed, often are, 
 and the denial or breach of the right and refusal to per- 
 form the duty take the form of a wrong, gradually assuming 
 the double shape of a dajnage to the particular or specific 
 
16 
 
 individual whose right has been invaded, and &lso to the 
 Community whose rights are all threatened v/hen one invasion 
 goes unpunished; and here we shall begin to see the origin 
 first of Redress and then of Punishment and the conception 
 of a Crime as a wrong to the Public beyond that suffered 
 by the individual. 
 
 But ownership implies an Owner, that is a/ person 
 with capacity to have rights, that is agein one who is 
 his own master and has liberty of action and safety from 
 his fellow: for e slave can own nothing nor can the squaw- 
 wife. All that they possess belongs to the master and that 
 a time comes when they can own something--even themselves-- 
 and hold what they have in personal safety is only another 
 form of saying that they have gained theit freedom and come 
 under the protection of custom or the law, and so the con- 
 ception of personal liberty arises, and the right of the 
 man who owns himself to protect and preserve his life and 
 limbs, his property and reputation against the robber or 
 assassin, the thief or the swindler, ageinst Slander and 
 Libel. 
 
 Plainly out of the fundamental conception of owner- 
 ship traced along the advancing facts of civilization we 
 may easily reach the >.ost of Austin's fundamental abstrac- 
 tions, and with no thanks to or terror of metaphysics, and 
 can evolve all the relations upSn which the Law is built; 
 
-17 
 
 fairly demonstrating what Sir JrederJ ck Pollock says in 
 one of hn s Oxford lectures, viz: "the doctrine of evolution 
 is nothing else than the historical method applied to the 
 facts of nature; the historical method is nothing else than 
 the doctrine of evolution applied to human societies and in- 
 stitutions." Of course in the sketch I have made I have 
 simply run an Bxposition I'lyer over the line and must here- 
 after come along with a. slow freight train stopping at all 
 
 of things, 
 stations and loading and unloading all sorts and kindsi\and 
 
 possilDly modifying much of method, but sv/iftly and lightly 
 as I have swept over the subject I have given you and my- 
 sfeif and my associates something verj"" serious to think 
 about. 
 
 But following this line of thought and study we 
 shall not escape all difficult inqtiiries quite so readily 
 as I seem to have indicated. One question will early con- 
 front us, and demand an answer at the peril of barring our 
 advance altogether. What is this Law which comes after 
 the relations of men v/ith each other and with the State: 
 and how can we evolve it from those relations until we 
 know wherein it fliffers from thera, and virhat in its essence 
 it realljT' is? Por obviously it would prove useless to 
 evolve from facts an unknown quaint ity--cogie jural x or y. 
 Now I shall not attempt to formally define what we recog- 
 nise as positive law. There is a battery of exT;losive 
 dynamite in every definition. Vhere two men like Black- 
 
-18 
 
 stone and Austin differ radically and fundamentally it is 
 
 7 
 
 loest for ordinary students, like you and I, to venture 
 upon no definitJons, "but to comprehend this positive law 
 from some of its essential and vital characteristics. One 
 of the most importa.nt of these we sha.ll find to be what 
 we call the Sanction. Law is nothing unless compulsory. 
 If it holds the scales thoughtfully it must also wield 
 the sword severely. It is but a request--a suggestion-- 
 a handful of helpless advice, unless there is behind it some 
 power to compel obedience. Only on that condition does 
 it reach the dignitj' of a command; for en order that may 
 be disobeyed Y;ithout shadow of penalty or punishment cesses 
 to be a command and can never ripen its fruit into a law. 
 lie are apt to deal with the reign of force as typical of 
 and peculiar to barbaric ages, but that is a mistake. We 
 can no more eliminate -'orce from the moral original sys- 
 tems than from that of the physical world. Unless it stands 
 behind the command ready to enforce it there is no lav; in 
 any proper acceptation of the term. ]?orce does and must 
 so stand behind the Lav/. In these days it ffi.akes no public 
 display, but i^there nevertheless: It is there in the 
 massed strength of the whole comraunlty:- a reserved end. 
 silent force for the most part, but powerful as an army and 
 deadly as s cannon shot, --as tne anarchist will speedily 
 discover if he defies the Public Order- But wha.t does this 
 
-1 o 
 
 necessary sanction Toy an equa]. necessity imply"!" Evidently, 
 the existence, before the Law could exist, of some superior 
 power,- one or fev/ or many,- capahle of wielding Force and 
 of compelling obedience, from, whom the command -shall emanate. 
 That is to say,- Law not only follows the formal relations 
 of one man with another, but v/ith the aggregate of all 
 formed and fashioned into a political society. The Chief 
 might command separate and special acts and compel his wife 
 to be obeyed; but the characteristic of Law is that it oper- 
 ates generally by providing a rule, and not specially by 
 single commends. The analysts point out end measure that 
 distinction quite clearly. You ace, therefore, that in studjr- 
 ing l8w historically we must study also to srame extent the 
 History of Civilization. A time comes when the Chief 
 changes into s. Sovereign, or the head-warriors into Oli- 
 garchs, end. the Tribe becomes a nascent State or Political 
 Society. The Sovereign, --one or many--lays down general 
 rules of act or omission and requires obedience to them: 
 rules formed usually out of what has been the habit or cus- 
 tom or public opinion of the Iribe, end so lays the founda- 
 tion of political life. These rules take on ti\e character 
 of Lav/: for, first, they are general and not merely particu- 
 lar; and second, they are effective because there is force 
 behind the^i to compel obedience; and third, thejT- are built 
 upon and establish and formulate the actual existing rela- 
 
-20- 
 
 tions of men with each other which have grown up and be- 
 corae prevalent . 
 
 But here faces us another question difficult and 
 yet vital, which I may merely state hut have no time to 
 discuss. This Law, which comes after existing social rela- 
 tions, which formulates and crystallizes them, which fol- 
 lows like a rear guard, pushing forward stragglers, caring 
 for the wounded, guarding the trains and stopping pl^Ander,-- 
 thxis Law,--v/hat is it ethically, mora-lly, and has it any 
 ethical character whatever? Is there in it any essential 
 
 and chara-ct eristic element of goodness and truth, requisite 
 
 its commands, 
 to its right to ohedience and the validity of/or on the line 
 
 and in the direction of which it normally gro?/s and advances; 
 end what will the historical method teach us as to tiiat? 
 Here we approach the domain of Ethics. ¥/e have in thss Univ- 
 ersity a department devoted to that study- I fear that we 
 shrll have to cross its boundaries. I foresee that we may 
 make forays into its dominion, and a foray commonly ends in 
 a fight. Well, that is what e lawyer is for, and he is never 
 so happy as when bones are cracking all about him, --provi ded 
 they are not his own, --and when the noise and smoke of con- 
 flict't batter and fog the air- A quarrel, perhaps, though 
 I hope not; but not to-day, gentlemen, --not to-day; for the 
 limit allowed myself is already exceeded, and I must stop 
 when I have just begun: stop in plain sight of a theme as 
 vital as any which I have touched. 
 
21 
 
 INTRODUCTORY. 
 
 The purpose of the lectures wlich follow may easilj'- 
 be misunderstood unless It "be stated wtlth some care and pre- 
 cision. It is to frame an outline of the History and Evolu- 
 tion of the Law from its origin in the primal instincts 
 of hxjmanity to its final fruita.ge in the existing civiliza- 
 tion. It is to follow that marvellous growth in some very fe 
 broad and general way, without pretence of either original 
 or exhaustive study. The simpler and less daring object is 
 to cut a path through a wilderness of legal history which 
 is so blind and dark that few venture into its shadows, or 
 have courage to seek the wealth w^dch it hides: to cut e path, 
 to blaze a. trail, which others mtey be tempted to follow, and 
 may gradually widen into a roadway vrhich even the most care- 
 less feet can tread with comfort and safety - 
 
 It is only such outline that we plan, for reasons 
 which severely dominate the effort. It is born of a desire 
 to te-'pt the youth who are preparing for the Bar into an un- 
 accustomed field, end make them see that there is something 
 well worth their study which lies back of their Codes and 
 Cases and throws a strong and clear light upon them all. 
 But the young men are busy with very practical themes. They 
 have patience only with what seems to then immediately use- 
 ful end necessary. They are apt to think that they can 
 master a doctrine and yet be contemptuous of its origin 
 
22- 
 
 and growth. Their eyes are fixed on the present need: they 
 have no use for the "buried past. They mean to build, build 
 now, build new: let those who would exca.vate old ruins go to 
 their spades'. And they are right to a certain extent and in 
 some degree. They should study their Codes and unearth their 
 Cases. No hour or theme of the daily routine should be lost 
 or wasted. But they ought not to be content with that. Their 
 power of thought, their range of knowledge will be narrow and 
 cramped if they only memorize rules and label doctrines. 
 They must be taught that they can never have accurate measure 
 of a rule or complete comprehension of a doctrine until 
 they know its history and have traced its origin and growth. 
 It was well said in the "Positive Philosophy" of Auguste 
 ■Domte that "no conception can be understood except through 
 its history:" and the danger of omitting that inquiry was 
 never better disclosed by example than in Blackstone's at- 
 tempt to explain the exclusion of the half blood from in- 
 heritance without understandi-ga its agnatic origin in the 
 Uorman law. 
 
 We have not adopted our method of study without 
 deliberation or a consciousness of the wide range of in- 
 vestigation which it involves. Of necessity we have had 
 to choose between two rival methods, each having its able 
 and earnest partisans, and its own meritorious qualities. 
 These are the Philosophical and Historical schools of legal 
 investigation which have been clearly contrasted by one of 
 
23 
 
 those Gontint-^lal jurists whose lalDors have done so much to 
 clear our vision and guide us along a dark and devious way. 
 With entire accuracy he describes the Philosophical method 
 as one which throws overboard all the legal history of the 
 past as "useless baJLlast", a.nd seeks to construct a new 
 system founded upon pure reason, while the Historical method 
 avails itself of all the garnered experience acc\Amulated 
 through the life and activity of humanity, and, eliminating 
 whatever is purely local and so exceptional "draws from the 
 ancient fountains of legal science a knowledge of the con- 
 sequences of legal development." It studies failures as 
 well as successes, defeats as well as victories, and seeks 
 to understand the lesson taught by each. It seems evident 
 that the one method is founded upon logic and the other 
 upon experience: that the one proceeds by deduction from 
 certain principles assumed to be primordial and axiomatic, 
 while the other rests upon experience; absorbs all the les- 
 sons that way taught, and does not hesitate to be illogical 
 or even arbitrary when the ends of justice seem to require 
 it. The one method aims to determine what the Law ought to 
 be, the other what it is and has grown to be. 
 
 But that general description of the Historical 
 method needs to be made more definite and precise, examined 
 more in its details, lest we misunderstand it and so may 
 have no fixed route of travel and lose our way in uncertain 
 and vibrant hesitation. If we begin by deseribing what it 
 
24 
 
 is not we shall clear the \vay to an easier perception of 
 what it is. 
 
 And, first, it is not the mere study of antiquarian 
 decisions and ancient books. These v;ill prove to Toe ex- 
 tremely useful, and are a'iways interesting and helpful to 
 the scholar. We shall resort to them often and especially 
 make large use of the texts of the Roman lev and the doc- 
 trines of the year books and earlier English cases; but we 
 must never for a moment forget that they may appear, under 
 our modern scrutiny, very divergent from the simpler truth 
 which they taught to their Age, and so should always be 
 looked at through Roman or Saxon eyes. Y/e should read them, 
 so far as we can, in the light of the conduct and custome 
 out of which they grew and because of which they existed. 
 neither should v;e forget that a multitude of the older esses 
 were very briefly and imperfectly reported, and from that 
 cause have raised as many r)roblems as they have solved; 
 that most of them shed b ut a faint light upon the law of 
 their time, and a.dd little to our accurate knowledge of it; 
 and that in comparison with their number only a few hold up a 
 light which enables us to see our way. Wsmxxjsjaisxj^sxitsxx. 
 Even these few are liable to be misunderstood. ¥/hen one pond- 
 ers over the long controversy turning upon a single letter 
 in a Roman word, on which swing colliding theories of Bail- 
 ment, and which blocked the way v/ith great masses of learn- 
 ing and of argument, and notes how the best lawyers differ 
 
29 
 
 over the curt a.nd blind phrases of tlie Year Books, it seems 
 better for all of us. when we can avoid it, to turn away from 
 such nice and critical study, and proceed on very much broad- 
 er and more general lines: seeking the law of a race in its 
 external morality and lorellailing customs, the trend and 
 phenomena of its days and its life, while recognizing fully, 
 and using whenever available, the legal memorials wBiich 
 have escaped the ravages of the centuries. 
 
 Second. It is not at all the analytical or meta- 
 physical method. The great master of that was Austin whose 
 books are studied in the English schools. He deals almost 
 wholly with pure abstractions, and analyzes with acumen and 
 critical skill what he deems the fundamental principles of 
 the law. These principles, he asserts, reside mainly in 
 certain terms or words in daily and constant use, which is 
 entirely true and wholly beyond question. These words, such 
 3s dutj'", -- right, --ingiury,-- represent abstract ideas and notions 
 and these are analyzed, defined, limited,, and differentiated 
 with great care and ability. But the student of Austin be- 
 gins and ends with cold and bare abstractions, and necessar- 
 ily is busied with very refined and -metaphysical distinctions, 
 and with laborious definitions every one of which ii danger- 
 ous because none can be absolutely perfect. It seens 2)0ssible 
 to reach and then comprehend these abstractions by an easier 
 and more natural route. They grow, --every one of them, --out 
 of theactual relations of men with esch other and with trie 
 
26 
 
 State; End we shall study those actual relations, and the 
 manner in which the law formulates and regulates them; 
 quite sure that the alDstract notions which describe them 
 will readily suggest their own meaning and limitations. 
 We shall reverse the method of Austin and go from the con- 
 crete to the abstract in the order of History and fact. 
 
 Third: the Historic method will not busy itself 
 with particulars, but confine its work to the development 
 of broad general principles from which a multitude of 
 special rules and distinctions have been evolved. To ad- 
 judged cases resting on specific facts v/e shall often go, 
 but always in pursuit of some fundamental doctrine whose 
 various details and ramifications are more or less the sub- 
 ject of regular and daily study. Always it will be the 
 ultimate principles and the manner and scope of their oper- 
 ation with which we shall be busy, desiring only to see 
 them clearly and fix them firmly. The narrow sway of spe- 
 cific cases will serve the purpose simply of necessary 
 illustration or conveAiaiit authority. 
 
 Fourth: nor is our proposed method what may be 
 loosely called the ethical method. Y/e shall be busy, --very 
 busy, --with what has been termed jural ethics, or the moral 
 character of legal doctrines, but we shall not proceed upon 
 the idea, which is both imperfect and unsound, liable to 
 mislead and sure to be disappointing, that la.w originates 
 in and grows from and along the line of what is ethically 
 
27 
 
 right, and so is to loe traced and studied along that line. 
 Ihile Blackstone defines it as comraanding what is right and 
 forbidding what is wrong, and the Institutes of Justinian 
 descrilDe Jurisprudence ss the Knowledge of things Divine 
 and human, the Science of what is just and unjust, Austin 
 and Bentham on the contrary, strip it of any necessary or 
 essential ethical quality, and Kent descrilses it as a rule 
 of civil conduct prescriTaed by the suprerae power of the 
 State. We shall find it, we imagine, never rising above 
 the moral level of the humanity it regulates, and ethically 
 perfect only in its aspirations and never in its accomplished 
 purposes . 
 
 Thus having declared what the Historical method is 
 not, we may describe what, in c/ur conception of it, it a.ctual- 
 ly is. I has been said already that law regulates and formu- 
 lates the relations of men with eacl^ther and with the State. 
 Its entire subject-matter is constituted of those relations. 
 It'could not exist until thej'" existed, for it was born of 
 their necessities and could not be a regulating force until 
 there was something to regulate. It came after those rela- 
 tions and did not create them. They were social phenomena 
 which ante-dated its own existence, and which it followed; 
 always behind them, and always at work defining, regulating 
 and confirming them. Obviously, out of these relations 
 was evolved the law, and the Historical method is simply a 
 study and tracing of that evolution. It $$• the method, in 
 
28 
 
 the main, whic.ri Darwin applied to the study of Nature, and 
 which we shall apply to huraan relations and institutions. 
 We shall stand at th® "birth of the law, by its infant cradle, 
 at the crudeness of its youth, and watch the vigot of its 
 manhood and its growing goodness and truth. In that process, 
 of course, we shall be studying and mastering in some direc- 
 tions the history of civilization, and should take as our 
 guides those authors who have most fully and carefully and 
 accurately comprehended that history. IFot, indeed, that we 
 shall need to follow them in all their investigations, for 
 so much of moral and intellectual progress as respects 
 merely the character of the individual without reference to 
 its sosrial product or effect is necessarily immaterial to 
 a science which is concerned about the actual relations of 
 men with each other and with the State, and leaves to 
 Ethics and Religion the subject of merely personal character. 
 
 But in studying those relations we must always keep 
 before us the object and aim of that study. We shall be 
 sure to evolve something from a scrutiny of the probressive 
 relations of men with their fellow3^but whether that some- 
 thing shall prove to be tne positive law which we seek to 
 find and understand, or some other end different though 
 perhaps similar product will depend largely upon a general 
 conception of what Law is, sufficient at least to enable 
 us to recognize it when we find it. Tor the relations of 
 men with eacn other in society rapidly oecome comple^, and 
 
29 
 
 many rules of action appear whic-i may carelessly be mistaken 
 for Law because of some surface resemblance. They are law 
 in the loose and po^jular significance of the term; bearing 
 its name though lacking its essential characteristics and 
 authority. Such was the ancient law of chivalry which clad 
 the knight in mail and made him defender of the oppressed. 
 Such are our modern laws of courtesy which rule us almost 
 despotically and are full of polite fictions. ITeither 
 emanated from a known sovereign or involved penalties be- 
 yond some degree of popular disapproval, and yet have had 
 obedience with so much of general submission as to be called 
 la^rrs in our common speech and by a rude sort of analogy. 
 It is needed, therefore, not to attempt at the outset an 
 accurate definition of Law, sure to end in controversy or 
 failure, but to ascertain, for the present in a very general 
 way, what are some of its main and essential characteristics 
 as we find them in fact existing to-day in order tiiat we may 
 be able to identify it when we discover it cropping out from 
 the action and re-action of men upon each other. It will 
 answer the purpose to point out four, for while there are 
 others, v;e may leave them to be developed as we proceed. 
 
 i'irst. One essential element of law is what is de- 
 nominated its Sanction, ^y that is meant its power to corn- 
 dis- 
 pel obedience or to repress or prevent/obedience. Vithout 
 
 such power and authority it cen effect nothing and regulate 
 nothing. It is a request, a suggestion, some good advice 
 
so 
 
 to eoi^«l :rftsp«@t »ii# tm}mia»ien* And. tltt3r«i» lie® on® 
 «»««£»tial Mffitmttm'9 %m^»®m It »»<l wh&t &T*i usually sma 
 
 imiMsipt* »» the l»m Qt ixwy$iftil«»*' Tht Gutter i»r« t^oh ^ 
 temm <»f tk« fMt timt tti®!' dsmnet %« it.iH}1ii«r«^« Ob«4i«no« 
 to i^^m l» iti9Vi%ft&Ie and iirrfikzijBi3»}.#« fh«|i' fovem ana eoiso 
 ti^l JoattitT #ilob iiannot tliiiilc ®v MXl mad wMofe aais hairo 
 iieltli«v iMHtiv® ti'0r p&w«r %«» &i««i»Mrt mi*^ ^luilgs^ relit Ion or 
 «>Mllt3r to ^^»»«* mt the positive lav wd iBfuire. ^t^otit 
 
 wi8^®t iiiid volition, im& mt^k9 %& eontrol- mi4 ir«$»il.at<» th« 
 aefi««4ts«nt stotlon* tt ^mn tie dlsd^^red sua wiXX he S$6» 
 «i|>ify«# iR^»iM»T<i3E> It putflD zNKsti^lxat «ip0» l%iii»®iii e«lflelm«ii« 
 tialetrs It In mm% wmnitT 9iitw€iglis tlie i^tiirt to disobe^r l>r 
 
 «tftB« iil,i»ya w»a !»■ «v«f3r '0«g®ml»«4 «®e*«ij a® w® ee® th»a 
 t®«4iir» i»®^ t0»t «»^ Fow^y* S$sieti«e8 It is th® atithoTity 
 «f "m^^mw ©If KliJiR «)ia««il ^ ftrbitrairar will. It s^y be 
 ife» #©!Bfeii»«<a |*«tw»sf ©f OMnartlas awissiag their f©ro« to a»* '■ -.^ 
 «ttr« 0fe«44«ii««j or «fiHa tS*« eilent and r©8«tTtd pow«r ©f 
 tJi« t«i»p3L«, oes8ctitt«4 t© tli«ly «h®»«ia «g«»t8, imt l>«iek«d 
 i»S» Ity tii», wmi<jit»a p«lle®^ W the Sfttioml Qm«3e4, iB %h& 
 «»«, If ii««4 to«, toy trie ©olia Rggrtgat© of the P««pl« 
 
 tfe««S«lTt«* 
 
 It $* flftsy to »ee tiie pre8«iiee and dpevatlon of ft 
 
 V- 
 
31 
 
 Sanction in the criminal law where it taJces the form of 
 punishment, and. in the lav; of torts where it shows itself 
 in penalties and vindictive damages. But its scope spreads 
 very much further. Fine and imprisonments, penalties and 
 death are not its only forms. It exists in the shape of re- 
 dress or compensation in all civil remedies, and makes 
 them what they are, and is the reason and J"ustif ication for 
 their existence. It lurlcs in the idea of liahility which 
 is the end and crown of every conceivable civil action, and 
 lays its hand upon the property of the offender even though 
 it may spare his person. And the redress afforded is effec- 
 tive or ineffective in proportion to the compulsion, strong 
 or weak, wlieh stands laehing it. Take that away and a civil 
 action 'becomes b practical force. It is true that in ordinary 
 cases of contract the damages are not given as penalty or 
 awarded arbitrarily, but are measured by the agreement of 
 the party and given as compensation. But their measure, 
 whether greater or less, by whatever standard graded or 
 limited, would be a useless and superfluous determination, 
 if the defendant might pay or not a.s he pleased, and if 
 execution and the sheriff were not at hand to enforce the 
 judgment and apply the compulsion which is the sole practi- 
 cal end of the intervention of the lav,r. We shall have more,- 
 perhaps very much more,- to say about this characteristic 
 of positive law, which is essential to the correct idea of 
 
32 
 
 a legal olDligatlon, l3ut shall await the natural and neces- 
 sary occasion, satisfied for the time "being with having 
 merely pointed out the characteristic as one of the modes 
 of future identification. 
 
 Second. Another characteristic follows as a corol- 
 lary from the need and the existence of a sanction. Compul- 
 sion in any form or degree implies a compelling power and 
 authority; some external agent of command, at liberty to 
 make a rule and strong enough to enforce it; and that 
 again implies the existence among men of a social organi- 
 zation having in some form a head or sovereign able and 
 authorized to direct a.ad control it. That suprene authority, 
 capable of enforcing its will, varies witVi time snd cir- 
 cumstance, and, as it is good or bad, impresses itself upon 
 the law it enacts and enforces. It originated in force 
 and began as arbitrary power, handed down lines of descent, 
 and often arrogating to itself the attributes of Deity, 
 and enrolling Imperial assassins among the Divinities. One 
 would expect from them only injustice and the worst forms 
 of selfishness. But even in their time the Law^better than 
 the force behind it. The most thorough scoundrel is not 
 destitute of some sense of justice and of some veneration 
 for what is fact and true; and even the selfish interests 
 and persaal ambitions of the desoot were better subserved 
 by at least an approach to justice in his general laws. 
 
33 
 
 It took fewer swords to enforce therri, end lessened t^ie 
 
 temptstJons to resistance and re"bellion. Lut that justice, 
 
 little as there was of it, and however overshadowed by an 
 
 arbitary will, had in it the seed of an obstinate growth; 
 
 pushed up even from stony ground ^ staj-k and leaf and 
 
 gradual OEk-trunk; claimed and enforced its right to live, 
 
 and, living, set up a standard by which to measure unjust 
 
 decrees and selfish enactments, and helped the people who 
 
 suffered to an understanding first of Itlieir wrongs, e.s 
 
 displayed by the evil action of a tyrannous lav/, and then of 
 
 their strenglth, as they massed to resist it. The despotism 
 
 sometimes spread into an oligarchy with little gain for the 
 
 people exchanging one despot for many; until, in later years 
 
 and after desparate and prolonged struggles, there came the 
 
 representative monarchy, with a King superfluous unless 
 
 through the influence of a rare personal character, and 
 
 finally the Republic in which the People became sovereign 
 
 and the sole authority of the law, and capable of making 
 
 it whet they pleased. Out of this characteristic of Posi- 
 
 towpi'd equality and fpirness Fud right, 
 tive Law, its tendency "to growth/\ aoiemdency obvious even 
 
 mnder tJie grasp of a tyrant but very plain under popular 
 institutions, ±3a£Joe5bc«aSSJddsXx8i%^x£»fcXMSfex^ 
 has corae a modifying theory; that it is not merely a command 
 set by 8 sovereign power and deriving its right to obedience 
 from the command, but has an inherent authority of its own 
 derived from its ethical quality and charpcter and entitled 
 
to control because It formulates what seems to be right, 
 what, all things considered, is judged to be most generally 
 useful to the group wJfeich it rules. This theory o£ General 
 Utilitj'", determining one source of the Lav/' s authority, has 
 its place as a definition and explanation of that morality 
 upon which the Law draws life, for its doctrinal material: 
 but we need not at present enter iipon a discussion of the 
 theory, or try to assign to it its proper place and rank. 
 It is enough just now to say that in identifying wkat is 
 positive as it is developed in modern times, we shall find 
 it emanating from the supreme and sovereign power of the 
 Sta.te, if not directly, at least indirectl;/ and potentially. 
 
 Third: Another characteristic of the law will be 
 found to be that its commands are general and not particular, 
 respect future acts a,nd omissions or those already past 
 rather than those presently and temporarily commanded or 
 forbiddeB, and operating upon all or upon defined classes 
 Elike. Out of that fact has grown the maxim tha't the law 
 is no respecter of persons, by which is meant tha.t it 
 formula te£ general rules operating uniformly and independent 
 of separate and distinct personalities. The distinction is 
 often £ narrow one but may be further expressed b;- cc:-trast- 
 ing an order with a rule. If a chief directs e v/arrior to be 
 expelled from a tribe for some real or fancied offense, 
 there is b command and adequate force behind it to compel 
 
35 
 
 rather 
 o^bedience, "but it is an order/ than a. law, a temporary 
 
 direction instead of a tribal rule. Por the same offense 
 in another no such order need te made. Having respect to 
 the person who offends it may Toe withheld. But if the Chief 
 makes end promulgates e rule that those who do this or omit 
 to do that -whall Toe expelled or suffer some positive punish- 
 ment it is in the nature of a law, for it furnishes s rule 
 of action binding upon all who come within its terms. In 
 the one case the Sovereign violates no word of his own, if, 
 punishing one, he excuses another- He may act inconsistent- 
 ly or arbitrarily , --he commonly does, --but that is all. In 
 the other case he violates his own word, brings into contempt 
 his own command, disintegrates his own authority, if he fails 
 to enforce the rule according to its terms. \'/hst wlft have 
 denomirfa.ted en order as distinguished from a rule, Austin 
 describes as an occasional or particular command, and dis- 
 tinguished that from a law thus: s command "where it 
 obliges generally to acts or forbearances of a class is a 
 law or riile . But where it obliges to a specific act or for- 
 bearance, or to acts and forbearances wftich it determines 
 specifically or individually, a command is occa.sional and 
 particular-" The aialyst sufficiently points out the dis- 
 tinction, and enable us to include in the characteristics 
 of positive 1b\v that it formulates general rules instead 
 f issuing special and particular orders. We shall find 
 ceptional cases which make the distinction refined and 
 
36 
 
 subtle, tut ordinarily it is clear and obvious and furnishes 
 one test of -what is or is not & law. 
 
 Pourth. A final characteristic of those needed for 
 our present purpose is that the law deals with human conduct 
 rather than with individual character, and upon the standard 
 
 of what is hest and most usefjal for all witnin its juris- 
 diction rather than for one or a few or the unconsidered 
 mass outside of the organism. Iven where jt takes into 
 view the state of mind of tne individual and discriminates 
 according to his intent it derives that intent from infer- 
 ences founded upon the average of human conduct, and im- 
 putes that intent to him ae a legal truth when aotusilly, as 
 a moral truth, it may not have existed at all in the mind 
 of the particular individual. An illustration may be taken 
 from the criminal law. 
 
 The definition of murder in the first degree is, 
 in one of its forms, where it originates in a deliberate 
 and premeditated design to effect the death of the person 
 killed or of another. The design to kill, the intent to 
 take life, is an essential element of the definition, and 
 onw which the prosecution must prove in order to establish 
 the crime. There are two mere states of mind, internal 
 emotions, involved, which are the intent^ to kill and the 
 deliberate formatioi: of that intent. How then does the lav; 
 proceed to ascertain it? In all cases and necessarily from 
 the external facts as indicating the internal emotions, 
 
37 
 
 and re&ches its results by deduction from those external 
 facts alone- From the deadly nature of the wea.p§n used, 
 from precedent threats, from an existing motive, from all 
 the circumstances surrounding the killing, the law reasons 
 out and" infers the murderous intent, for it has no other 
 mirtipcfr in which it can see reflected the hidden internal 
 emotion. And again; ohserve its dealing with the element of 
 deliberation. In a recent decision of our own courts the 
 necessity of resorting to external conduct and depending 
 upon deductions of internal design thence derived is stated 
 thus: "The intent formed js the secret and silent opera- 
 tion of the mind, and its only visible physical manifesta- 
 tion is in the accompli shmeht of the thing determined upon. 
 The individual whose intent is sought to be ascertained 
 may remain silent, or if he speaks may end probahly will, 
 if he has a crime to conceal, speak untruly, and thus the 
 mind is compelled from necessity to revert o to the actual 
 physical manifestations Sf the intent exhibited by the 
 result produced." It is true that there are cases in which 
 a party is allowed to testify to his intent, but they are 
 exceptional and the oath of little value: of no value where it 
 does not coincide with the inference bred by the external 
 facts, and useful only when those facts leave the intent 
 in doubt. Vith such slight exception, which can scarcely 
 be said to have qualified the rule, arid has been admitted 
 witi. hesita.ncy and much difference of opinion, it is safe 
 
to say that the Law deduces intent from the sets and circum- 
 stances surrounding the thing done, &nd deals only v/ith ex- 
 ternal conduct even where obliged to take into pccount 
 motive and, therefore, ee a science, inevitsbly separates 
 itself from Ethics. 
 
 Thus far we have endeavored to point out and de- 
 scribe what we are to look for: and now we should indicate 
 where we are to look for it; or, in other words, should 
 identify the sources of the Law, which involves a search 
 both for the agencies v/hich the State employs in formulat- 
 ing and promulgating it, and for the storehouse upon whose 
 genHBred material these agencies have drawn in the process 
 of construction. 
 
 With reference to its sources the law is usually di- 
 vided into what is known as the written and unwritten la.r. 
 The form of the distinction as dependent upon the presence 
 or absence of a writing is quite immaterial. The real dis- 
 tinction is between laws emanating directly from the Sov- 
 ereign, whether monarch or parliament or legislattiire, and 
 those formulated by subordinate agencies, entrusted more or 
 lesp with tr.e law-m.aking power- Por the Law has com.e from 
 both sources. VTnnle it has derived its authority from the 
 Sovereign, very little of it has been in fact created by him. 
 He has stood sponsor for, wrapped his name a.bout it to follow 
 its survival, appropriated to himself the stolen brains and 
 learning of better men about him; but in trut|t almost all of 
 
39 
 
 the Lav/ has come from the intermediate source, end has 
 emanated from the Sovereign only in the sense that he has 
 approved it and made it imperative. Hut a small part of the 
 Roman law came from the Constitutions of the Emperors. The 
 great "bulk of it grew from, the Judgement s and opinions of 
 Praetor and Jurisconsult. The Code ilapoleon gained its 
 authority and imperative force from, t.e explicit command 
 of the First Consul, but its contents were not his creation. 
 It was a gather of existing lav/, re-arranged end somewha.t modi- 
 fied hy those who s.cted under his direction, and v/ho them- 
 selves found it already governing the people, and crystal- 
 lized out of their moralitj/" and customs. Tlven in China, 
 v;here for some thousands of yea.rs the Emperor has "been re- 
 garded as the "Son of Heaven" and tl'-e ultimate source of all 
 law, we have learned from one of its intelligent Ambassadors 
 that there is a Common law, resting uuon the customs of 
 the race and notions descended from a'Patriarchal system, 
 dead in the distant Past; a Case law founded on decisions of 
 the magistrates and the Imperial council; as v/ell as a Statute 
 law reflecting the direct will of the Sovereign. It has, in- 
 deed, feeen codified as recently as the seventeenth century, 
 hut that codification, known as the Ta Ching Luli , was the 
 work of a numerous hod:'' of magistrates who put in order 
 and selected out existing rules, some of v/hich were already 
 twenty centuries old r-nd reached back to the distant and dim 
 dynasjjy of Shun. And in England, as we shall herea-fter see. 
 
40 
 
 elmost nothing of the Lav/ was the direct cre&tlon of the 
 
 personal Sovereign, but nearly trie whole of It product 
 
 of the Courts and the Parliaiaent . Vre rripy regard toe Sovereign , 
 
 therefore, as the ultimate source of tue Law EXlxXiKg acting 
 
 through inferior agencies, but only in the sense that he 
 
 gives to it its imperative power and enforcftable control: 
 
 for he who dictates law to others Inevitably stands superior 
 
 to those for whom he makes it. The very act implies some 
 
 supremacy of power- The will of the master is the law of 
 
 the slave. The word of the employer controls the servant. 
 
 The command of -the principal governs the act of the agent. 
 
 Ye may grant then that the Sovereign is the ultimate source 
 
 of the Law in the sense which we have indicated, but we 
 
 must look back of him and even of the agencies which he 
 
 a.uthorizes or employs fiffr its origin and material. 
 
 Thus looking back of him there are said to be three 
 definite end distinct sources or fountains of La.w, which are, 
 first Ethics on the conclusions derived from the moral sense 
 or from general utility according as one or the other theory 
 of abstract right is held: second, customs commonly and gen- 
 erally observed: and third, the opinions of learned lav/yers 
 and of the judges in the decision of legal controversies. 
 
 That there is and there should be an ethicsl quality 
 in the Isvv which adds to its strengtJ:.. and lifts higher its 
 standard of duty is of course true, but it does not follow 
 that Ethics is either identicel with Lav;, or its authoritative 
 
41 
 
 and dominant source or origin; for the two eve different, 
 both inherently pnd in their ooerative methods. The one 
 says ought, the other says shall: t'he one esks why, the 
 other declares what: the one srgues, the other commands: the 
 one ra&y pardon, the other can only condemn: the one scolds, 
 the other strikes: the one pleads, the other kills. And 
 this radical distinction between them Jsecomes even more 
 obvious when we consider the different fields of human acti- 
 vity which they occupy and the diversity of their scope and 
 range. 
 
 Thus e lie, ethically considered, is always a sin, 
 and elways merits reproof end punishment. But the Law does 
 not accept that broad ethical rule. It does not regard or 
 punish B mere lie. Even he who swears to one upon the 
 Gospels and before the court is guiltless of legal fi.lse- 
 hcod if his lie respects some matter immaterial to the con- 
 troversy. That the act is ethically bad is not enough: 
 it must also be externally harmful, and affect perceptibly 
 
 the actual and tangible relations of the parties. Again, 
 
 « 
 ethically, a promise should be kept and perfectly fulfilled. 
 
 He who makes it, not intending to fulfill it, is guilty of 
 deceit and, if he violates it, offejads the moral law. But 
 positive law enforces it only when founded upon a considera- 
 tion, or, when it can see some actual and tangible harm 
 flowing from, the breach of it. And still again, an obliga- 
 tion assumed orally is just asbinding as one put in writing, 
 
42 
 
 ethicelly considered: the pith of the thing is the promise, 
 and the manner of its manifestation tut en Immaterial in- 
 cident. But positive la.w, actuated "by motives of prudence 
 and public policy a.nd taught bj' experience, requires many 
 sorts of contracts to be manifested "by a writing, and re- 
 fuses to enforce or recognize them when existing only in 
 parol. It is quite clear, therefore, that very many 
 doctrines of Ethics are nibt rules of lav/, and that only 
 such doctrines have the force and character of lav/s as have 
 been selected out and adopted by the law-making power and 
 stamped by it with approval and authority . It follows, that 
 Ethics, instead of being in any manner or in any sense la.vi 
 or a dominant and authoritative source of law, it rather a 
 reservoir of good and right and just things from which the 
 law draws upon occasion for what it needs, and selects out 
 what is useful for its purposes, but leaving behind a vast 
 residue of doctrine which it does not touch or appropriate. 
 k similar ^hing is true of custom. The common law 
 is boldly said to be founded upon that, and is often de- 
 scribed as customary law. Blackstone makes it the prirr_e 
 and original element of the English lav/ outside of acts of 
 Parliament, and puts in the saSaie of authority what he de- 
 nominates immemorial usage, i'or back of him v/e shall find 
 a siruilar -^hing in the Hindu law. But observe, that Black- 
 stone himself and all the English autliorities fully and 
 freel]'' admit tha.t no custom or usage is to be regarded as 
 
43 
 
 Law unlesB it Is found crj^-stallized in an set of Parlia- 
 ment or imbedded in the decisions of the courts. And that 
 result is inevitslDle. But what is or what is not a general 
 custom of the realm will breed dispute and difference of 
 opinion end must Toe determined by somebodjr; and v/hen so 
 determined must be carefully and accurately defined, and 
 its true scope and application made known to all who obey 
 it. Then it may be that there exist rival custon).s contra- 
 dictory and discordant, but each claiming to be that 
 which is prevailing and dominant. The necessity of a de- 
 cision requires Judges authorized to decide; chosen for their 
 superior and v/ider knowledge, who may recognize and define 
 and a,ccurrately limit the general cu stomas asserted, and so 
 weave into the texture and fabric of the Lew. Until this 
 is done the Customs are uncertain, v/ithout boundaries, and 
 possessing only some degree of moral force. V,ho flouts 
 and disobeys them incurs only' a general disapprobation. 
 ¥/hen the Judge acts they become elements of the La-v.f and 
 carry with them effective penalties of disobedience. And 
 thus it necessarily follows that Customs, like Ethics, 
 ere simply stores of what is useful and convenient, upon 
 which the Law draws at its will, selecting some and dis- 
 carding others. And ae we may still regard Ethics and 
 Customs as distinct and apart from the area and dominion 
 of Positive Law, and entitled to be described as its sources 
 only in the sense that they are ti^e granaries and arsenals 
 
44 
 
 from which the law-meker draws the food to feed end main- 
 tain justice and the power snd force with which to resist 
 and punish wrong: and that law is the "best which draws most 
 freely upon the corn and wine of the one and the vigor 
 and strength of the other- 
 
 In utilizing these supplies the sovereign on the 
 State hss employed as agencies the opinions of learned men, 
 known ss Jurisconsults in the Roman system, "but more uni- 
 formly and persistently the Judges of the Courts. As the 
 Jurisconsults in the imperial city, so the members of the £ 
 Bar in the English and American courts aid by their learn- 
 ing, by their logic, by their arguments, the thought and 
 conclusion of the Court, and the result rolled up by the 
 years is a great mass of what is denominated Judge-made Law. 
 There is less of it in our day. The Judiciary suffers not 
 from lack of law, but from a grep.t pnd growing plethora- of 
 the article. Precedents have passed from rills into rivers 
 and then into lakes ?nd oceens. Legislation has supplied 
 statutes by the thousand, ill drawn, badly conceived, and 
 often framed to subserve some private purpose, and help 
 "high finance" on its way to legitimate robbery. It has 
 become a fine art to discover a deft and slippery fra.ud 
 concealed under the mask of a virtuous public purpose. 
 Daily ?nd continually men are trj'-ing to see how near thejr 
 can graze with their wheels the constitutional provisions 
 enacted for the public safety, or how liy a steady pull they 
 
45 
 
 <Ean stretch them out to cover some new purpose. And so in 
 our tiuie the Courts are not pioneers pushing on in advance, 
 but a near -guard acting on the defensive and continually 
 pressed by active and vigilant enemies. As a consequence the 
 Judges have grown more and more conservative. They have real- 
 ized the boundaries of their duty and responsibility, and 
 strive to keep witnin them. A large share of their work has 
 beccme that of interpreting the statutes, and dete:rmining their 
 constitutional validity or invalidity. They are the guards of 
 those barriers, the only protection left, and upon their steadi- 
 ness, firmness and courage everything depends. Even their pro- 
 cedure is assailed, and that most useful form of preventive 
 relief, the injunction of a court of Equity, is sought to be 
 destroyed in order that riot and the destruction of property 
 may be used as a lever to raise wages. And so our courts find 
 enough to do in preserving the old law without making much that 
 is new. It *1 safe to say that the modern Judge makes none 
 unless indirectly and unconsciously. If he does that it m.ust 
 be remembevsed that the Judiciary is a department of the State, 
 organized by the sovereign power, made effective by its author- 
 ity, speaking for it, as in early days the assessor or chancel- 
 lor spoke for the king, and issuing decrees which the State 
 ratifies by enforcing them. If sometimes the judicial agent 
 is thought to have gone astray the sovereign power interfvenes 
 by changing the ijudge or remodelling the court, ir.ore commonly 
 
46 
 
 by a statutory CQicmand modifying or reversing the doctrine 
 disapproved as being unsound or unwise. It is still the State 
 making the law. 
 
 Very important was the work of the Judiciary in the 
 ancient days when the Common Law was born. The Judges made 
 almost the whole of it. Of legislation by the king and his 
 Council there was very little and that, in the main, but a 
 list of penalties for murder and theft. All else came from 
 the Judge, We shalljfind him continually appealing to the 
 average human conduct as a standard or rule of decision; 
 studying that conduct and reasoning about it and establishing 
 rules based upon it. Apt illustrations will be found in 
 cases involving questions of Fraud, of Sare , of good or bad. 
 Faith, of Negligence. Often the Judge will be a Priest and 
 %ix religion with his law or rewetrd his class with "bendfit 
 of clergy", so that it can sin cheaper and at less risk than 
 the common people. Nevertheless, his services were invalu- 
 able, and it will be the judges who are making the law, good 
 or bad, and they almost alone. But where did they get the 
 doctrines which they established? Out of what did those 
 doctrines grow? What was the soiarce or cause of their auth- 
 ority? How much T/as borrowed, aW from whence, and where 
 did that come frc^ and how? What is the Law itself, on 
 what foundations does it stand, and what are its ultimate 
 truths? These questions press upon us and dem.and an answer©. 
 We cannot hope to give an answer final and complete. We 
 
caji only hope to help the studious lav/yer on his way to 
 find one. Obviously, none of us will be in condition to 
 give that answer until we ha.ve studied the judicial action 
 in its origin and growth, and its manif gestation along 
 the lines of human progress. We must begin, perhaps in 
 the dark, very far back at all events, and step by step 
 follow the Law as it developes. 
 
 And so it is in the historic past that our problems 
 rriuBt find a solution. It is there that the creative pro- 
 cess began, and, as it ddvances, steadily accumulated 
 the doctrines and rules which to-day govern our courts, 
 and deteuiiine the rights of litigants; and it is only 
 there that we shall be able to master the process itself, 
 and discoveE what relation was borne to it by the morals 
 and customs of the time. 
 
 It seems to us more than a misfortune, it rises to 
 the level of a^aMt, that student and lawyer alike should 
 know nothing of that retfion of study, should not under- 
 stand and never even inquire what Law really, is; go 
 blundering across the lines of morals and of Custoni, un- 
 conscious whether a trespasser or not; and grow up blindly 
 and densely ignorant of the very foundations cf their 
 profession. 
 
 Without more remark this Introduction may end. We 
 now know what to look for; where to look for it; hov/ to 
 
 identify it when found; and in what manne:^ , by what method, 
 + r. r>r^-nri-<-tn+ +v,o «a«-»«v, jj^ entering upon the long journey 
 
48 
 
 let it be remembered that we promise no original investigation, 
 though we may smjjietimes to tempted to venture upon one; that 
 the opinions e-2;^ressed will not be dogmatic, but more or less 
 tentative and open to debate j that we plan only a route of 
 study for those who desire to understand the Law not merely in 
 its technical but also in its scientific character; that we 
 shall keep as close to them as seexr-s possible even when we 
 appear to wander; and that in so doing we shall seize and ap- 
 propriate witnout remorse whatever has been learned by others. 
 We shall gve credit for it of coiurse, but taJce it with the 
 freedqn of one who deems alllknowledge the property and in- 
 heritance of all. 
 
49 
 
 II. 
 
 RUDIMEN TAL RELATI ONS . 
 
 It will be a large help to our study if we can 
 frarae at the outset an assumed or tentative line of legal 
 evolution which will serve as a general guide, and the accuracy 
 of which we may test as we proceed, e's^hanging it for another 
 if it shall prove blind or misleading. It may save us frcau 
 some wandering and serve at least for a "working hypothesis" 
 like that which aids the scientific process. We assume there£ 
 fore as the probable line of legal growth, this: (l) the 
 original instincts of humanity; (2) the needs of the primitive 
 man; (3) the social habits of the tribes; (4) the national 
 customs; (5) the prevailing and external morality; (6) and 
 finally the Law. 
 
 We may expect to find the roots of the Law in those 
 Primordial Rights which grew from the natural human instincts. 
 It is imperative therefore that we begin ou± work by study- 
 ing the primitive man in his archgic life and surroundings. 
 To omit a patient search through the darkness of his origin 
 would be to lose the guiding thread which will bring us out 
 into the light. However difficult that search may be in some 
 directions, however commonplace and familiar in ot hears, the 
 facts and developments of primitive life axe essential to our 
 inquiry because they hold the germs from which all Law has 
 eventually grown. We should study them therefore patiently 
 
 and in detail, and without any preconceived theory liable to 
 
50 
 
 distort the truth. 
 
 Whether man began his life on the earth as the im- 
 proving descendant of some brutal ancestor, or degenerated 
 to that level from a much more respectable creation, need 
 not here be discussed. In either event he is found at first, 
 so far as we can discover, at the low level of a very ignoratt 
 and probably brutal savage, but guided and governed by two in- 
 stincts, which he indeed shared vfth the animals about him, 
 but out of which slowly evolved his better and his higher life. 
 These primal elements were the instinct of self-preservation 
 on the one hand and of the attraction of the se^s on the 
 other. We know that he had them because they are in us and 
 in all humanity as far back as our actual knowledge extends; 
 and also because we are able to be sure that without them 
 man would have faded away and totally disappeared from the 
 face of the earth; and so we need no impossible historic 
 evidence to establish their existence, but may assume it as 
 an unquestioned truth. One of these natural instincts has 
 been the source of sH. the rights of the individual both as 
 to the person and as to propeji^y, and the other created and 
 organized the Family which is the germ and the unit of pro- 
 gressive Civilization;: and both have proved to be causative 
 agencies which more than any others have moulded and deter- 
 mined the relations of men, and laid the foundations upon 
 which the structure of modern Society has been built. 
 
51 
 
 Animal life in a state of Nature is a state of war. 
 For sqjpe inscrutable reason the brute creation lives in a 
 condition of incessant and interminable hostility. Every 
 species has its predestined and invetetate enemy which kills 
 it for food or fights it with undying hatred. The destruc- 
 tive battle rages not merely between different species kill- 
 ing for food, but equally betv/een those of the saiT.e race 
 among whom the accasions of conflict axe innumerable. Be- 
 cause of this every brute has been endowed with armor of- 
 fensive or defensive, and with varying capacities pto equal- 
 ize the battle betv/een the stronger and the weaker , and 
 give to specifti the clpHOse. of preservation; so that on the 
 land, beneath the water, in the air, everywhere^ in the 
 animal kingdom, we see the preparation for and realize the 
 certainty of a fight for life. Vitality is conditioned 
 upon miorderj and evolution proceeds by slaughter.. But 
 through offense and defense alike, as motive or occasion 
 or cause, appears invariably the instincts of self-preserva- 
 tion struggling to avert injury or death, as a provision of 
 Nature which permeates the whole animal economy, and Idads 
 up to what has been described as the survival of the fittest. 
 This instinct is so dominant and absorbing that it makes 
 the weakest animal dangerous when brought to bay and fight- 
 for its life, and urges the stronger to a balanced or peri- 
 lous attack when hunger or hate makes the assailant desperate 
 
52 
 
 Into the midst of this brute creation, forever at 
 war and resenting intrusion, cane Man with his weetker com- 
 panion at his side, having the sane instinct of self-pre- 
 servation as strong and as dooainant as in the brute myriads 
 about him; but unarmed for offense or defense against his 
 enemies. The balance was saved by the gift of an intelli- 
 gence somewhat beyond that of the creatures of the forest, 
 in degree if not in kind, and the instinct of self-defense 
 set him at once to the construction of his own weapons and 
 the agencies of his own safety. For instinctively, or at 
 least speedily, he saw that he too, like the brutes about 
 him, must fight for his life, must face the eternal and in- 
 evitable destiny written on the activity struggling for ex- 
 istence, must wage war for food and clothing and safety, 
 must kill to live. How he did this we al 1 know. The stone 
 arrow-heads and flint hatchets found in the ancient drift 
 amadg the bones of slain beasts of the period, the caves 
 on the hill s3(pes, the cliff dwellings in the canons, the 
 lacustrine villages built over the protecting water, have 
 discovered how he struck down beast and bird, and boipsad 
 out the dangers which menaced his personal safety. 
 
 In this familiar history it is possible to see the 
 giinnaer of a crude idea of personal Right, sofae primitive 
 conception of a pe rsonaL wrong; and that even before social 
 relations with othevv men can be assumed to have existed. 
 
53 
 
 The man of the Stone Age IBelt within him -the right to live 
 and live unharmed: that his life was his to use and enjoy. 
 Whatever threatened it from any source was to be resisted, 
 to be punished, to be avenged, and so assujjed in his thought 
 the character of a wrong; and to feel a wrong was inevitably 
 to feel something like a Right violated. He acted out the 
 thought he could not express but which v/e are able to dis- 
 cern. Narrow at first the conception extended to whateverc 
 became essential to his own personality, to all that came 
 within its scope, to whatever of comfort of peace or of 
 pleasure became appurtenant to his individual existence. 
 In its origin this conception of personal right brought 
 into conscious view by external threat or assault, was 
 purely and wholly selfish. It has never lost the traces of 
 that character down to the present hour; and even when the 
 Saw came long after to mitigate and restrain its selfish 
 character, to subordinate it to the similax right cf others, 
 to inject into it sioae ethical and moral quality, it stead- 
 ily recognized its necessity and its justice, and leaves 
 to-day the right to kill the assailant when danger of death 
 is imminent. But the primitive Man drew no such limiting 
 distinctions. His right to live, and living to have the 
 means of life, and gaining them to gain also whatever was 
 essential to his physical ccmfort, took rapadly the charac- 
 teiristics which naturally flow from force and power dominant 
 and unrestrained. He felt himself a master among the brutes 
 
54 
 
 whom he seattered and slew, and, with every successful 
 
 development of his invention, and courage, and skill, grew 
 
 more and more into the type of autocrat and tyrant, and 
 
 felt in growing intensity the influence upon his character 
 
 of what Tennyson calls 
 
 "That blind brute beast of Force 
 Which sleeps in the sinews of a man:" 
 
 and which later it would beccme the office of the law to 
 cxirb and to control. 
 
 We may not here determine whether the Man of the 
 Stone Age had within him the germs of a moral sense to 
 serve as a standard by which to detect and measure the dif- 
 ference between right and wrongs Whether that be the truth 
 or not is an ethical ingairy unessential at the present 
 moment, for, if he had it at all, it was as a nascent and 
 undeveloped germ, and his original idea or notion of per- 
 sonal right was purely selfish; product of the instinct of 
 self-defense; and resolving about his own personality sole- 
 ly and alone. Whatever was useful to protect and preserve 
 his own life and person, and to add to it the comfort and 
 pleasure attainable, was his by what he conceived to be a 
 right, however it existed as matter rather of feeling than 
 of thought. His swift osnception of it rested undoubtedly 
 upon personal utility alone, which served as its cause and 
 measure, and confined it to his individual safety and plea- 
 sure, and. within the narrow circle of Self, until other 
 
55 
 
 things and then other lives came within the scope of that 
 personality. 
 
 They did so come. Obviously, his first relations 
 were with the brutes, surrounding and menacing his life, 
 and the forces of nature ope rating upon his freedan and 
 activity. His life was dear to him and the normal instinct 
 of his being taught him to defend it with unflagging pur- 
 pose and energy. He began with the blow of a club or hurl 
 of a stone from some vantage ground or hiding place , but 
 soon realized the need of better instruments of defence. 
 He tied alsharp flint in the cleft of a stick for a hatcte*t; 
 he made him a sling to hurl stones with added force: then 
 strung it to the end of an elastic limb to increase its 
 range and effect : soon, improving on the idea by repeated 
 trial and experiment, turned the limb into a bow with cord 
 of sinews and arrow shaped of pointed wood; next had tipped 
 it with more effective flint, ground and sharpened to a 
 point by patient and tiresome friction; and at last found 
 himself with needed and useful weapons. Surely he regarded 
 them as his. It is not possible to strip him of that feel- 
 ing or to imagine him without it. One may test his thought 
 by trying to take them away from him. The instinct of 
 self-defense will cover the weapjins as brought within the 
 scope of his own personality. The bow with its arrow is his 
 longer arm and swifter hand. It is what his leap and teeth 
 are to the tiger; what his wing and his beak are to the ea^k, 
 
56 
 
 They are the product of his thought and study, the end of 
 a hundred unsuccessful experiments, the triumph of a long and 
 patient lalor. His mind has gone into it, his weary muscles 
 have gone into it, his best invention has gone into it, part 
 of himself, of his own personality has gone into it, and be- 
 yond that it represents the instrument of his food and of his 
 safety; his, and all the more his, because Nature did not 
 give it, but he, the child of Nature, made it for himself. 
 If you try to take it away from him — ^he will defend his 
 possession to the uttermost; kill you perhaps to save his 
 weapon; all unconscious that he is thinking to himself as 
 the spring and motive of his action what thousands of years 
 later a myriad minded poet puts into the mouth of the com- 
 plaining Jew: 
 
 7'You do take my life 
 
 When you do take the means ty which I live." 
 
 But this nascent idea of a possessory right, mani- 
 festing itself when an attack is made upon it, although 
 strengthened and intensified by labor upon the thing pos- 
 sessed does not wholly depend on those incidents. The philo - 
 sophers are wrong who say that. It rests sufficiently on the 
 maAis control and possession. One day in his wanderings he 
 finds a flint shaped exactly for an arrow-head; needing 
 no labor to fit for his use; ground and sharpened to his 
 purpose by sQne grinding and polishing forces of Nature. 
 He picks it up, delighted, and takes it to his cave. He 
 
57 
 
 has found it. What was for anybody is now only for him. 
 You cannot get it from him without a personal assault, 
 or a violation of the control which he has thrown auound 
 it. You cannot get^from him unless you are the stronger, 
 and if you do he will feel that you have wrested from what 
 was his. One will do well to keep out of his path with 
 flint stolen or seized for this priraitive man will have his 
 revenge. He knows nothing about any legal doctrine of 
 treasure trove. He does not foresee that in some thousands 
 of years after he is dead, a meteorite flashing its fires 
 through the sky willjfall to the earth, and heWho found it 
 will claim it as his and he upon whose land it fell will 
 assert it to be his, aaidlthe law will be called upon to 
 settle the quarrel; but he does know that the flint was 
 his because he B&d it, because it came witnin his control, 
 and that you who took it from him invaded his personality 
 as much as if you had taken his hand or arm. 
 
 Try him again and see how that personality grows 
 and extends. He has chosen a cave for his home: patiently 
 smoothed its floor and walls by removing rocks and stones; 
 spread over it the fragrant tips of the iiemlock for carpet 
 and couch; limed it with the skins of animals irJthe hunt; 
 hung on its walls the stag antlers from which bow and arrows 
 swing; and made of it a home which the deft fingers of his 
 companion adorn and slowly turn into rustic comfort and 
 beauty. Some day, when both are absent, comes another man 
 
58 
 
 of the period searching for a shelter to suit his taste, 
 and leaning on his club looks in at the halfguarded entranee 
 He sees the signs and tokens of occupation, of some priority 
 acquired, and while very certainly he covets it, also compre- 
 hends that he can gave it only by a force superior to that 
 of the occupant; and either goes his way, recognizing the 
 silent influence of priority of occupation, or if he fights 
 for it, feels that something in the nature of a right puts 
 an obstacle in his way only to be beaten down by force, 
 and arms his adverseiry with an unusual and desperate courage 
 which makes the assault difficult and dangeroud in the ex- 
 treme. Be sure the occupant will strike hard to preserve 
 his home, as the bird will fight the snake which threatens 
 its nest, or the bee will sting the intruding insect which 
 covets possession of its hive. 
 
 But the instinct of selfpreservation goes further 
 still and in new and important directions. It operates not 
 only upon things susceptible of manual possession which 
 in that manner are brought within the range of the Man's 
 personality, but also upon the use of things which cannot 
 otherwise be appropriated. He must have water to slake his 
 thirst, to wash the blood of slain animals frcm his hands 
 and the dusty sweat of summer from his limbs, and so we 
 find his earliest home, if not by the banks of some streaiu 
 or river, then surely by a spring upon whose flow he de- 
 pends. In the Welsh laws of Maelmud, very old and curious 
 
59 
 
 in their triads, three things are described as essential to a 
 good country, and thdse are wood, stone, and springs of 
 water. Proximity to the latter always determined the camp 
 of the Jewish tribes, of the Germanic groups and of the 
 American Indians. The Six Nations had what they called 
 "the Deep Spring" on the main trail between the Hudson 
 and the Ld^s where they camped for discussions of war or 
 peace, and others to which they resorted for medicine or 
 health. The legendary Greeks, when not located by the flow 
 of a stream, were sure to gather about some mountain or 
 valley spring, and that of the Pierian Thracians at the 
 foot of Mount Olympus where the Muses were vgror shipped has 
 becane classic not only in the lite^rature of Greecje but of 
 the world. And so we may be sura that the priiaitive man 
 when he found a convenient spring often made his home near 
 by. He enlarged its basin, rejaoved the sticks and leaves, 
 gave it chance to run free and sparkling, add depended on 
 it to quench his thirst. After some fashion he regarded it 
 as his: not perhaps by an exclusive right which barred out 
 others, though we may guess that it came very near to that, 
 but at least by one that would not endure that it be taken 
 wholly from him. Assume to shut hiin out from its use and he 
 will at once resent your act and hasten to resist or avenge 
 it. He does not kno?/ it but he holds by a natural right of 
 Discovery first and of User aftejiwards, and these the germs 
 
60 
 
 of what will become in after days a national right to 
 islandv. or continant, and a private property right of re- 
 cognized extent add value. Indeed the savage himself 
 spread his right of use and occupation over his hunting 
 grounds. Intrusion into it lessened his own chance of 
 support by tending to make the game on which he depended 
 for food and clothing grow scarce and frightened and dif- 
 ficult to secure. It was natural for the Indian to resent 
 such intrusion, and the revengeful force which he exerted 
 showed his consciousness that something very like a personal 
 right founded on priority of use had been invaded and consti- 
 tuted a^wrong. 
 
 Let us pause here to observe that the Primitive 
 Man takes only what desires, and desires only what he needs, 
 only that which in some degree gives food or shelter or sub- 
 stantial comfort . He takes nothing for the mere sake of 
 having it. There is for him no charm or temptation in any- 
 thing which is not in some/way useful to the simple life that 
 he leads. Other things are superfluous involving labor and 
 care without object or motive. We can see in him no normal 
 instinct of mere Acquisitiveness. That, if it comes at all 
 will come very much later, as a growth out of the tendencies 
 of social life, and even then will develop only when power 
 and rank begin to be attainable through wealth in cattle or 
 in slaves. That vicious tendency which leads one to amass 
 wealth for its own sake, to accumulate and hoard riches is 
 
61 
 
 a morbid growth which follows the trail of civilization 
 and the invention and use of money. Undoubtedly the wants 
 and needs of the archaic man will increase as he himself ad- 
 vances in knowledge of his surroundings and of their utility , 
 real or supposed, for his comfort and safety: but that util- 
 ity^' will be the normal measure of his desires and will be- 
 gin to e-^i^and only when other lives and newer interest in- 
 vade his solitude. There is in him no natural instinct to 
 acquire for the sake of acquiring. 
 
 But his unrestrained freedom of action was equally 
 a part of the life which he deemed to be his. He saw 
 liberty all about him. He went where he wished; hunted or 
 slept where he chose; felt and would endure no restraint 
 upon his personal action. We can see the proof of that 
 not only in the life of the untamed and untameable Indian, 
 but very clearly among the Germanic tribes with whom the 
 sentiment of personal independence so prevailed that its 
 persistent influence went with the f lis/ of northern invasion, 
 pouring over Italy and spreading into Britain, and planted 
 the seeds of the freedom we now enjoy. Both Tacitus in his 
 Ger mania and Caesar in his Commentaries concur in emphasiz- 
 ing the indomitable spirit of independence which character- 
 ized the yellow haired swarms who roved between the ffihine 
 and the Vistula, the Baltic and the Danube, and who disliked 
 even the city or village as possible restraints upon their 
 absolute freedom. In all its force and strength the primi- 
 
62 
 
 tive man felt this instinctive love of personal liberty 
 which wove itself into the fibers of his life, became an 
 integral element of his life, and as such shared in the 
 protection which came from his normal instinct of self- 
 preservation. Owner of his life he owned also the liberty 
 which essentially inhered in it. Defense of that liberty 
 was in sidegree defense of his life. 
 
 But that instinct took another ©pension. It cov^ed 
 not only inanimate objects but animate lives, and took 
 them into its shelter and defense. The v/oman who shared 
 his hut or his cave, whose companionship relieved his lone- 
 liness, whose weakness depended upon his strength, whose 
 hands prepared his food, whose sleep was at his side, be- 
 came in his thought his, a part of himself, an element of 
 his own extending personality, an adjunct and appurtenance 
 of the life he lived, a thing owned, controlled, as were the 
 animals he had tamed, his submissive and obedient slave. As 
 such his thought and his will took her into the protection 
 which he gave to himself. The wild beast which assailed 
 her assailed him; the food he fought or snared to win must 
 be enough for her as well as for himself; the shelter he 
 chose must ensure her safety as we-il as his own. Love for 
 her, as we understand it, he did not feel for that implies 
 sSlection, choice, preference and free consent: but assured- 
 ly she was his and an elemental part of his primitive life. 
 His instinct of self-preservation took her within the scope 
 
63 
 
 and range of its operation j because she was in effect him; 
 and he defended and protected her from the same selfish 
 instincts which made hii:: defend himself. But the man was 
 dominant. The strength was his, the courage was his, the 
 food and the clothing of skins came from his club savagely- 
 wielded or his arrow mortally aimed. He the hunter; she 
 the drudge. He the master; she the slave. For always 
 power is in its nature desRpttic and grows swiftly to the 
 habit of command when fed by daily submission and obedience. 
 And so the Primitive Man was master: no doubt about that. 
 Not always cruel, he could be if he chose, and we fear he 
 often was. He held her life at his mercy; he might kill 
 her if he pleased, nothing was her own; everything was his; 
 she was servant, slave, beast of burden, digging in the 
 scant field, grinding the maize, living in terror and sub- 
 mission. It is no wonder that the man looked down upon 
 her. How he estimated her we know. When the Six Nations had 
 conquered the Delawares and stripped them of their arms, 
 and forbidden them to fight, the haughty Mohawk described 
 the degradation imj«»sed in the significant phrase, — "we 
 made them NStomen." When the Greek of the heroic age formed 
 his household the women were made to grind the handnaill 
 and even a princess joined in the laundry on the water-side. 
 When the Hindu chieftain died and was buried with his belong- 
 ings upon the funeral pyre the widow was burned with him. 
 He was dead. Why should she,g. part of his life, live? 
 
64 
 
 When the Turk grew angry with sorae thoughtless girl of the 
 harem he sewed her up in a sack and flung her into the 
 Bosphorus. Why should he not? He bought her and paid for 
 her and the Circassian trader had his money. We shall not 
 Toe surprised therefore to find in the Roraan law a distinct 
 recognition of this marital and masterful control, nor when 
 the Common Law came to deal with the same relation to find 
 in it the deep iapress of the actual and historical fact, 
 which it somewhat mitigated but did not radically change. 
 It recognized e-:^licitly that the man and his wife were one j 
 that her Existence was merged in his; that her identity 
 was lost and drowned; and that she passed wholly into the 
 power and control of her baxon or lord. He could inflict 
 personal chastisement upon her, and thd precision of the Civil 
 Law added, with his fists or with a stick. Trust hixi to use 
 both when he was drunk and she ■ was saucy. All her personal 
 property became his and the rents and profits of her real 
 estate. She could not contract: she was denied the benefit 
 of clergy: she could not be a witness for her husband be- 
 cause a man could not testify for himself, and she was not 
 perm.itted to bear witness against him because no man was re- 
 quired to aosuse himself. This utter merging of the woman's 
 identity in that of the man has aicClood of light thrown upon 
 it by a study of the relation in its origin, and of its 
 rudiment al character. The common law doctrine has sometimes 
 
65 
 
 been regarded as merely a theory or legal fiction, but we 
 discover that it was the savage and solemn truth. As the man 
 owned and possessed his weapons, and his clothing of skins, 
 and his home cavern or hut, so he owned and possessed the 
 woman, and might bruise or maim or kill her if he pleased; 
 for there was no law in the land and brute strength was lord. 
 Of course this right of his as it dwelt in his consciousness 
 came into view only when in som.e manner resisted, and rested 
 upon the same ground of defense of his personality as in the 
 case of the inanimate objects which he possessed and con- 
 trolled; but the two sub;jects of this nascent ownership were 
 so radically different that, while one grew and strengthened 
 into a real and genuine Ownership, the other moved more and 
 more away from it toward the slowly coning right of the 
 woman to own herself. 
 
 Sooner or later the primitive man learned also how"f"« 
 capture and tame the wild animals of the woods and subject 
 them to his control. At first he merely killed to defend 
 himself or for food and clothing. They were his only when 
 dead, or when his arrow had so wounded them as to prevent 
 escape: as even to this day the whale in the Ardjiic seas 
 belongs to no one until the first bloxv of the harpoon car- 
 ries title and right to the boat which holds its line. But 
 on occasion the early hunter caught some aaimal alive, in 
 a pitfall prepared as a trap, or when wounded beyond further 
 flight. He learned to prize the milk of the goat, of the 
 
ee 
 
 humped cattle and the buffalo, and felt the prudence of 
 having at hand what the severities of the weather or his own 
 accidental weakness might make it impossib^-Sr io secure in the 
 chase: and now about his cavern grow enclosures within v;hich 
 to keep the aiiimals caught, and where they might incre8.se 
 and be always ready for his use. Of course he soon saw 
 that some of them could be tamed and would so become perman- 
 ent resources for food and clothing, for protection and even 
 companionship. Thus began his flocks and herds, the early 
 wealth of all primitive nations, and about which the historic 
 Pentateuch concerns itself continually in. describing the 
 Hebrew life. How the wolf was tamed into the dog we can 
 imagine when we see the shepherd dog of Hungary so like his 
 wild wolf-brother as to deceive the peasant himself, or note 
 the wolfish propensities of the Esquimaux teams near the Arc- 
 tic circle. But how the huanaco and vicuna on the slopes 
 of the Andes became the llama and alpacca with their coats 
 of coarse or silken fibre: the wild cat, fierce and flexible 
 was tam-ed into the domestic variety, which itself is recog- 
 nized in the oldest Sanskrit records and in the mummies cf 
 Egypt; how the zebuB and buffalo of the Hindus and straight 
 backed cattle of Europe came from earlier types and b6cam.e 
 the necessities of the household; how the five toed fox be- 
 came the horse by an evolution marvellous and yet claimed to 
 have been demonstrated; these changes have puzzled the 
 
67 
 
 antiquarians, but show at least that the primitive man in 
 the earliest ages, spurned by necessity and taught by ex- 
 perience must have tairied and appropriated to his own use 
 a portion of the brute creation. And these became his, de- 
 fended by his expanding personality: his, because appurtenant 
 to and forming elements of the life which he lived, and which 
 he felt within him the absolute right to have and to defend. 
 
 So far we have inquired about the primeval man in 
 his solitude, save as broken by the animal life about him 
 and the companion at his side. But it was still further 
 invaded. There came children into his cave-home, and we 
 are tQ learn their refle% effect upon him. There was first 
 revealed to him in the conduct of his companion the instinct 
 of maternity, some faint and fitful trace of that wonderful 
 mother-love, vigilant, patient and undying, which was later 
 to envelope with its care the whole child-life of the Ages. 
 But the father met the children rather with wonder than love, 
 and yet always with the feeling of ownership, of power, 
 of autjaority, which demanded obedience to the parental will. 
 The children learned submission from the ei^unple of the 
 mother; still more from the heavy hand which dealt out its 
 rude discipline: and more again as they felt the need of 
 his protection an. d the safety of his superior knowledge 
 and wisdom, and watched with frightened but adrairing eyes 
 the courage and skill of his fight with the brutes which 
 terrified and menaced them. Obviously, he regarded the 
 
68 
 
 young barbarians as his, in the sense of belonging to his 
 own personality; gathering them within the Self which it was 
 his instinct to defend and protect j and at the same time 
 and as a eonsequence demanding of them that implicit sub- 
 ordination to his will which he demanded of his hand or his 
 arm, of the brutes he had tamed, or the woman who shared his 
 life. There ^egan, — there inevitably must have begun, — that 
 despotic paternal aut?iority, that patria potestas which in 
 the XII Tables, the earliest codification of the Roman law, 
 gave to the father absolute power over his children, the 
 right during their whole life to imprison, to scourge, to 
 keep to rustic labor in chains, to sell them even though 
 they might be in the enjoyment of high state offices, and, 
 according to Cicero, to kill them when mc^trous or deformed. 
 That law we see made no new rule , but simply formulated the 
 actual relation which it found existing as a natural product. 
 But the father learned something, — yes, much, — from 
 the children; for with them began that social action and re- 
 action which either intensifies or weakens the instinctive 
 and rudiments relations, and by slow degrees leads to the 
 influence upon them, first of custom, and finally of law. 
 ¥e may delay long enough to measure two of the natural chagges 
 which the children in his home necessarily brought upon him. 
 Their active vitality often ended in quarrels. Two 
 of them, wanted the same thing at the same moment, and each 
 resisted and resented the claim of the otheT, and this 
 
69 
 
 occurred not only in infancy, when the baby fists cairie into 
 play, but in that vigorous youth which coulti^ hurl a stone 
 and handle dangerously a rude hatchet or flint-barbed lance. 
 The Strength of the father's arm and the severity of his 
 authority necessarily intervened to end the quarrel, but 
 something more was needed. He must judge between them, 
 and decide the question of primitive right at the peril of 
 fiaiaxa further and constant struggle and blows. We can 
 imagine the two boys telling their story, each reciting the 
 blame of the other, standing with flushed cheeks and eagei- 
 eyes before their father to win his decision; some Abel with 
 his frank words and innocent tones, some Cain with surly 
 and treacherous glance and vindictive denunciation. The 
 father judges between them; he must fudge between them; 
 there is no other arbitrator; and in so judging his will , 
 at first as an ordeo: or command of occasion, but which he 
 establishes by repetition and habitual enforcement beccaaBS 
 to the children a parental rule, a law of the household; 
 and SO we find the primitive man assuming in his family, 
 in a small way and rude manner, but assuming the judicial 
 duty, the Igw-making power . What this inevitable action 
 may gr©w into will appear when we shall see the Germanic 
 chief, the Greek Archon, the Roman Empeyjor, the feudal 
 Baron, the English King, each in turn judging the quarrels 
 of his subjects uppn the ground of his fathrirhood, and 
 viewing the litigants as his children; when we shall see 
 
70 
 
 jiidgment following the person of the King and flowing froB 
 him, and the aula regis waiting the suitors wherever the 
 royal progress rested for sleep or pleasure, and slowly 
 broadening into the permanent court of justice. 
 
 But the father of the Stone Age very likely judged 
 unfairly: we suspect sometimes with ranlc partiality, as 
 many fathers have done since, and will often do in the future. 
 Among this brood of primitive children both father and mother, 
 more or less, for one or another reason, had their prefer- 
 ences. If one child was weak or feeble the mother we may 
 guess would be found to make that one a favorite, but the 
 fathers' s partiality would be found to attach to the most 
 bright and vigorous, to the boy who first learned to draw 
 the bow or hurl the lance, who earliest became his fathead's 
 companion in the hunt, who fought by his side when the 
 bear or tiger ventured an attack, who by and by could 
 bring home his share of the game or help to frame weapons 
 or shape the rude pottery of the household; and this one 
 almost invariably would be the first-born boy of the family. 
 Oldest and strongest of the flock, you may trust him to 
 IQrd it over the girls always, — over the younger boys usual- 
 ly, — and to look upon himself as the destined successor of 
 his father in the possession of his weappns, his home, and 
 his flocks and herds. We do not know how the primitive 
 man faced death when it came slowly and he was conscious of 
 its approach: that is a picture which we may not venture to 
 
71 
 
 paint ; could not save by a transfer of our own thought 
 back to the unknown working of his. But we do know that 
 when that death came, when the father realized the chill 
 of the inevitable end, he chose generally the eldest son 
 as his natural successor, and gave him the blessing which 
 in the Mosaic history evidenced the birthright. It is 
 quite improbable that any thought of dividing his posses- 
 sions would come into his mind. He would naturally expect s 
 some one of his children to hold and control it all, as he 
 had done, for the common benefit of all, to be the new 
 head of the family and fill the father's place. Naturally 
 again that chosen one would be likely to be the eldest of 
 ,the flock as often occurred in the patriarchal history, 
 and upon him would descend the succession and tha priestly 
 duty of those religious rites upon which the safety of the 
 family was supposed to depend. By this simple c^ath-bed, 
 out of the nature and necessities of the situation sprang 
 the germ of that preference which, gaining growth from other 
 and stronger reasons, ended in the law of Primogeniture; a 
 rule of descent which in many ways and in many lands yet 
 prevails, and holds its place with a tenacity which only 
 ceases to be wonderful when we see and appreciate the 
 natural tendencies in which it had its origin. 
 
 So far we have searched out and studied the rudi- 
 mental relations of the primitive man with the brute crea- 
 tion and with the family which he governed and have gathered 
 
72 
 
 much of the material upon which first the law of Nature, 
 and then the Common Law have been built. But the latter 
 has so grown through the religious tendencies of mankind, 
 owes so much of its doctrine to the working of those tend- 
 encies, and out of the canon and ecclesiastical lav; has be- 
 come so saturated with the products and necessities of re- 
 ligious beliefs, that we must understand their origin and 
 take them seriously into account. 
 
 Beyond the rudimental relations which we have de- 
 scribed, the man of the Stone Age had others; first with 
 the -unseen and unknown Cosmic forces in operation around 
 him, and then with the supernatural and mythical agencies 
 which he assigned as their cause. li was inevitable that 
 the natural man should make his own Gods, that he should 
 deify the processes and phenomena of Kature . That is the 
 origin of the rudimental idea of God found imbedded in the 
 life of all races, however ignorant or savage, and long 
 used as an argument for the existence of a Supreme Being; 
 (an argument which has lost all its force in one direction, 
 but has gained a new and marvellous strength in another.) 
 We have often tried to imagine the man of ths Stone Age 
 watching his first thunder storiL. When even now such ele- 
 mental warfare terrifies thousands in spite of all we know 
 and have learned of physical laws it would be strange indeed 
 if the Primitive Man did not feel in larger degree a similar 
 
7S 
 
 terror. See him watch the gathering darkness and 
 listen to the growl of the distant thunder, and then 
 startled and stunned by a zig-zag bolt which blinds hini 
 and a crash which shakes the earth. Amidst his fright he 
 sees where the lightning struck and tore a solid oak into 
 splinters. What does he think about it? Knowing nothing 
 about any laws of nature, perceiving that all force of which 
 he was conscious came from himself or from the brute action 
 with which he was familiar, he necessarily, for lack of other 
 cause and by an inevitable process, conceived an unseen 
 maker of the thunder, and hurler of its bolts; a Being 
 like himself in the main except having the greater and more 
 wonderful power and capacity needed to work the rr-ore start- 
 ling and terrific results. In other words, he fraiiied in 
 his belief a supernatural resident of the sky who hurled the 
 lightning bolt and threatened in the thunder; who could be 
 angry and surely was angry when smashing things in a storm; 
 and whose enmity was to be dreaded. Small wonder that the 
 Greek Zeus and the Roman Jupiter were described by their 
 devotees as sitting on a cloud and wielding th^tiunderbolts. 
 It was equally inevitable that the archaic man should fear 
 this Deity, and out of such fear should come an effort to 
 propitiate him, to win his help and gain his favor. That 
 effort could only manifest itself in an act of giving some- 
 thing. In all savage races presents are propitiation. 
 
74 
 
 Now the greatest pain of the primitive man was hunger and 
 so the most desirable gift was food; and that was offered to 
 the hungry and the angry God on a rude altar. The kid or 
 the goat was killed and left for the unseen spirit to feed 
 upon unseen, and we have the beginnings of sacrifice and 
 that begging to be spared which is a prayer. And here be- 
 gan that nature worship which has filled the sky with gods. 
 
 But it gained prevalence and meaning in another way. 
 The savage began to enthrone his ancestors among the Gods. 
 Even now new Saints are being elevated to the peerage of 
 Heave». How the process originated has been explained for 
 us. The savage saw his shadow on the grass in the sun of 
 the afternoon, on the rocks as he stood between them and 
 the camp-fire in the night; himself yet not himself; iden- 
 tical yet separate; chasing him, hanging to him wherever he 
 went. And then night after night he dreamed and in that 
 dream his dead father appeared, just like a shadow, accurate, 
 perfect, identical. Not knowing of what stuff dreams are 
 made, believing that he saw what he seemed to see in his 
 sleep, a shadow of his father, like that curious shadow of 
 himself, he recognizes a life afteijdeath. Indeed he remerabers 
 that when that father died something seemed to go out of 
 him; the breath which w^s the man's life floated away from 
 him; it went somewhere; it became the Spirit outside of the 
 inert body. Words are tell-tales. They come -cbov/n tc us 
 
75 
 
 from the distance and the darkness filled full of archaic 
 history. Observe those two words with which tiiK we describe 
 the soul turned loose by death: Spirit and Shade. It is 
 inipossiba.4 not see their origin. Tyler's Primitive Culture, 
 in the chapters on "Anirnisra" gives us an interesting array 
 of instances in which the sarae word is used for shadow 
 and for soul, a.nd others in v/hich the v/ords for breath and 
 for Spirit are identical. The Tascanian, the Algonquin, 
 the Arawac langua.ges disclose this identity of phrase: the 
 Zulus consider that at death the shadow of a man departs 
 from the corpse to become an ancestral Spirit: the Basutos 
 fear that if one's shadow falls on the water a crocodile 
 may seize it and dra.w him in: and the Calaban that the 
 loss of one's shadow is fatal. We are told also how at 
 the death-bed of an ancient Roman the nearest kinsman leans 
 over to inhale the dying breath, and how the Tyrolese peas- 
 ant sees the soul issue from the ashen lips like a little 
 white cloud. And so the father is easily ranked among the 
 imagined deities: the father, obeyed and feared in his life- 
 time, and all the more to be obeyed and feared when clothed 
 with the mysterious power of the superjiatural : the father 
 who was protection and safety while on eaxth and all the 
 more able to protect and guard his children when armed with 
 the mystery of Deity. Surely they will worship him and 
 pray for his care. And hence came that ancestral worship, 
 more fully developed in the Roman Lares and Penates, and 
 
76 
 
 yet prevailing in the East, which made the hearth of each 
 home a sacred altar and the centar of a worship not to be 
 omitted except at the peril of the family ruin and destruc- 
 tion. It was the father of the family who conducted these 
 rites. We have seen him Governor, we have seen hie; Judge, 
 and now we see him Priest. But those sacred rites, that 
 absolutely essential worship, must not stqp when the father 
 dies; must descenfl and did in fact go down the lineal chan- 
 nels of descent, from father to son, the successor taking up 
 the priestly duties not to be performed save by one of the 
 true ancestral blood. Lineal succession, — that came at 
 first from the descent of the priestly duty, and drew with 
 it finally the descent of property, when that began to be 
 recognized; so that to-day the whole law of descent, of 
 succession, of wills, and of intestacy, is founded upon 
 and had its origin in the father's priestly duty of Divine 
 and ancestral worship and its descent to one of his own fc 
 blood. Mindful of that origin we shall cease to wonder at 
 the ecclesiastical courts which long held an exclusive juris- 
 diction over the affairs of the dead. 
 
 So far we have studied the rudimental relations of 
 the primitive man with the brutes of the forest, with the 
 woman who shared his life, with the children who fell to his 
 care, and with the mysterious forces of Nature, and have 
 found that the only basis and operating motive of all his 
 action is a pure and unadulterated selfishness: no virtue. 
 
77 
 
 no morals, no justice, no charity: only Force and Strength 
 
 exerted for the safety, for the sustenance, and for the 
 
 comfort of the individual, we have found no Law but have 
 
 come upon the 
 
 SXBjraxasi&xiiaJFS seeds and germs from which all Lav/ must have 
 
 grown and have traced it to its dim and primal origin in the 
 natural instincts of the race. We have gathered the nascent 
 and crude notions of a Right, of a Wrong, of manual posses- 
 sion, of priority of occupation, of user, of the relations 
 of husband and wife and of parent and/child, of personal de- 
 fence, of personal liberty and of lineal succession. 
 
 We have lingered scs:iiewhat over these primitive de- 
 velopments of original instincts because they define for us 
 the beginning and basis both of personal and property 
 rights. They show that the one was attached to the person 
 and an inevitable outgtrowth of the instinct of self-pre- 
 servation operating directly against any assault upon or 
 interference with the attributes of the personal life; and 
 that the other flowed from an e-s^ension of that personal 
 right over things brought within the scope of its control; 
 a thought which Hering expresses in the statement that 
 "Property is the periphery of a man's person ei^ended to 
 Things." The personal right to a Thing is thus founded on 
 the actual Power over it which is at first a palpable and 
 tangible fact dependent on that Power, but which by a slow 
 process, will in the future remain as an abstract Right even 
 
78 
 
 when the actual control is gone. Both person and property- 
 have only the defence of Self-He Ip which manifests itself 
 in the resistance of Force, and when the defence fails takes 
 the form of Revenge or Retaliation. When a personal assault 
 has bean made the party injured will execute an assault in 
 return. There will exist a condition of private and personal 
 war, accondition which has had a survival, in spite of our 
 modern civilization, in the fairiily feuds which have lasted 
 through generations. If flocks have been raided or stolen 
 the natural and inevitable remedy is to replace the loss by 
 a forcible seizure of the herds of the thief which necessar- 
 ily means those of his family or tribe since all the crude 
 ownership is practically in common. That again is war- 
 And so in all directions the only approach to justice is 
 Force, the only remedies Revenge and Retaliation. We shall 
 see this more plainly as we pass next to the family and 
 tribal relations of men with each other. 
 
79 
 
 III. 
 
 THE PATRIARCHAL SYSTEM. 
 
 We have traced the primitive man into the group 
 constituting the original family, and studied his relations 
 with its members, gathering on the way germs of what later 
 became legal doctrines. But the faiuily grew, in years and 
 in number, expanding beyond its primary limits until, around 
 the paternal household and still subordinate to it, were 
 formed other households, held in the group by the ties of 
 kinship, the dictates of safety, and the habit of submission 
 to an existing and recoghized authority. This group of 
 related families became the House or Tribe, and more or 
 less developed into the Clan or Gens. Over this larger 
 group the continuing authority of the father became that 
 of the Patriarch, governing all the families as he at first 
 governed his own: and we are to study now what has long been 
 described as the Patriarchal system, created by the expan- 
 sion of the family through the marriage of its sons, through 
 processes of adoption, and by the accretion of slaves. 
 
 There are those who predicate a condition of pro- 
 miscuous and consanguine unions as preceding the Patriarchal 
 system and the evolution of distinct families whose grouping 
 constituted the House or the Tribe. Morgan asserts three 
 such families, which he names the Consanguine, the Punaluan 
 
§(S9. 
 
 and the Syndyasmian. The subject is disagreeable and, 
 fortunately for our purposes, quite unimportant. It should 
 be said, however, that there are certain ascertained facts 
 which give some color to the theory. Undoubtedly, in the 
 earlier stages of savagery the tie of the sexes was held 
 lightly, and the custom of many races of tracing lines of 
 descent through the mothers only, and the words and language 
 of tribes of the Australian or /(ftalayan type favor the 
 theory asserted: and it y(is still further suggested by the 
 situation which astonished and shocked the first mission- 
 aries to the Sandwich Islands and the Polynesian groups. 
 Nevertheless, the theories which have been constructed out 
 of these and other facts are hardly satisfactory, have been 
 rejected by Sir Henry Maine and Westermark and others, and 
 may so far be dismissed as to leave us with the Patriarchal 
 family as the beginning and outset of our investigation. 
 But while we may shun the controversy which has 
 arisen over the primal seagial relations we cannot escape 
 all inquiry as to the origin of those alliances which 
 developed gradually into the meirriage of the present day, 
 for they underlie important relations with which the Law 
 has been obliged to deal. It was by that method principal- 
 ly that the primitive family expanded, and that of necessity 
 it came more or less into the beginning of social relatione 
 both inside and outside of its own normal limits. 
 
81 
 
 The sons of that family obtained their wives 
 originally by capture and later by purchase. In both cases 
 it is obvious that the woman was merely a thing to be stolen 
 or bought without the least respect for any will of her own. 
 How this happened we shall readily comprehend if we keep 
 in view the primitive situation. No evidence exists that 
 men in a state of nature were gregarious, or manifested a 
 definite and general social instinct, except such as grew out 
 of the family relations. On the contrary, so far as we can 
 judge, the barbarian regarded every strauiger as his enemy: 
 and thousands of years of advancing civilization have not 
 yet d^tiBpated the doubt and caution, the cold politeness 
 or scarcely veiled suspicion, with which we meet the ap- 
 proach of a man unknown who comes without credentials or 
 approved surroundings. The primitive man suspected every- 
 thing new and strange. If when hunting through the forest 
 he met ax>ther man all his experience taught him to stand on 
 guard, and either begin or await an attack. He was likely 
 to regaurd the intruder as a trespasser upon his hunting 
 grounds, as a menace to his scant possessions, as a form of 
 the tiger or the wolf. We may be sure of that because we 
 know that the early history of primitive tribes and hordes 
 is a history of incessant warfare, and their grouped action 
 discEioses the individual traits. The Hebrew life as sketched 
 in the Pentateuch is one long story of battle and feud, and 
 red with slaughter, even Jehovah holds the sun for the sword 
 
82 
 
 of Joshua, and mth a promise of victory urges on the fighting 
 tribes. The American Indian deemed himself nothing unless 
 a warrior, trained himself for conflict as the business 
 and occupation of his life, was never a msin until he had 
 taken a sceuLp, and was always and forever on the war-path. 
 The early English axe thus described by Green. "They were 
 at heart fighters, and their world a world of war. Tribe 
 waurred with tribe and village with village : even within the 
 township itself feuds parted household from household, and 
 passions of hatred and vengeance were handed on from father 
 to son." All of barbarian history has little to tell us be- 
 yond this chronic warfare of tribes suid clans. The men de- 
 feated were slain in battle, or if captives enslaved or 
 killed with horrible torture, but the women were spared 
 and divided among their cpators. The sons of the family, 
 warriors of the victorious tribe, took the women for their 
 wives, regarding them as a part of the plunder, on a level m 
 with the spoil of cattle, and subjected them to an absolute 
 servitude. The ©Id Cambrian Triads describe a man's property 
 as his ^e, children auid movable goods. At times the raid 
 and the combat had the captive for its direct object as 
 when the Romaas carried off the Sabine women from their 
 vanquished protectors. That was the rule. Possibly, there 
 were here and there surprising ei^eptions to it. We read 
 how Euxenes, a Greek trader, came frcaa Phocia, landed in the 
 south of Gaul, and sat at a wedding banqaet given by the 
 
85 
 
 Gallic chief. Custan was that at the end of the feast the 
 maiden should appear and hand a goVlet of wine to him whom 
 she chose for her husband. Gyptis, the Chief's daughter, 
 passed by the angry Gauls and offered the cup to Euxenes. 
 The Chief gave him the bay where he founded what is now the 
 city of Marseilles. A pleasant story, cropping out of the 
 ugliness of baxbaric life: a legend or myth perhaps: at all 
 events a xaxe exception to ajJ universal rule. The traces 
 of this wife stealing as the usual result of continuous 
 warfare are found to this day in the marriage ceremonies 
 of many races, and long after consent and contract had been 
 substituted for force. We have said that words were tell- 
 tsiles: it may be added that ceremonies are equally so. Let 
 us note a few. The ceremony among the Calmucks was performed 
 on horseback and the groom chased and caught his flying 
 bride. In Egypt the^riends of the groom enter the house 
 of the bride and pretend a violent seiSure from the arms 
 of the mother. Among the Greenlauiders the bride is brought 
 from the parental house by force, and seated in her new 
 home with hair dishevelled and a sham of terror. In Kams- 
 katchka heroclothing is bound to her person with straps 
 and ligaments which the groom tides to break against her 
 resistance and that of her f -trends. And even in our day 
 there remains, in the marriage service of that prayer book 
 which has been pithily described as "a museum of antiquities", 
 the taint of the old slavery, the memory of the old capture. 
 
84 
 
 in the promise of the bride to "obey"; and there is also 
 in the ceremony the presence of the groom's best man who 
 represents the ancient chosen companion who helped his 
 friend in the raid or combat for the capture of a wife. 
 If sometimes in the intervals of war a wife was 
 sought from a friendly tribe, or within the bounds of the 
 Patriarchal sway she was bought with a price paid to her 
 father as owner, or by some service rendered to him, as 
 Jacob served seven years for Rachel whom he loved, and then 
 was cheated out of seven years more by that venerable sharper. 
 Lab an. 
 
 And thus the wife was always the maja's property, 
 always booty or bought, held on a level not much above the 
 camels at the well, or the cattle in the fields, or the 
 slaves under the lash; having no sepaurate or personal rights 
 and wholly merged in her master and lord. 
 
 With this primitive marriage of the children of the 
 family it grew under4;he authority of the Father as its 
 head but also added to its nurabei^y the process of Adoption. 
 Constant war with adjacent or passing groups put a premium 
 upon the strong axms of men, and upon the added strength 
 growing up among the children. The Indians sometimes held 
 captive a warrior whose own group had been substantially 
 degtroyed^ for whose life some daughter of the tribe, some 
 Pocahontas, chose to intercede, and who came into the 
 
85 
 
 family by a species of adoption. If this was 
 occasional and incidental among some of the Indian groups, 
 it was a permanent and regular institution among the six 
 Nations. Always after a battle some warrior was dead, 
 his cabin empty, his hatchet without an owner. The 
 vacancy had to be filled from the captives. Morgan de- 
 scribes the process which consisted in running the "gant- 
 let". Between two rows of the victors sormed with whips 
 the captive, with his back barred, makes a race for his 
 life. It is a test df endurance, of worthiness to be 
 received into the tiibe. If the runner falls or faints he 
 is ■BLTOtadxan hsmded over to torture &nd death. If he 
 reaches the goal he is adopted as a tribesman, and assumes 
 at once all the rights of a aember of the brotherhood. 
 AdQj^ion among the early Hindus took the place of a last 
 will, which was to them unknown, and put the person adopted 
 in possession of all the rights of a son. But the habit 
 of adoption had its principal source and necessity in 
 the family religion; in that ancestor worship the origin of 
 which we have already described. According to Coulanges 
 its earliest form was a belief that the soul rested peace- 
 fully in the body as a subterranean Deity if that body was 
 buried in the family tcmb with appropriate rites, and if 
 offerings of food and wine were made before the hearth fire 
 and at the grave. If these were omitted the restless soul 
 
86 
 
 wandered abroad, unhappy and likely to grow revengeful and 
 maligant. That ancestor worship has aurvived to this day 
 in the Orient. We need not grope for it in the dark. It 
 still e^sts and is obvious. Prof. Hazumic of Tokio has 
 described it for us as it prevails at this day in China 
 and Japan in spite of the hostile influence of Confucius 
 and Buddha in the one race, and the forces of western 
 civiliization in the other. He points out its controlling 
 feature which is the imperative need in each family 
 of a legitimate son who , .who only , can continue the 
 sacred fire and the ancestral worship. He cites the words 
 of Mencius: "There are three things that are unfilial 
 and the greatest of these is to have no posterity." This 
 imperative need of a son to save the father from becoming 
 a distressed and wandering soul and the family from suffer- 
 ing and extinction had several results. It made marriage 
 sacred and celibacy a sin. It justified the divorce of a 
 barren wife and the choice of another. If the father had 
 only a daughte r he could give her in marriage to another, 
 and appoint her first born son as his heir, but, if he had 
 no daughter, could formally adopt a son and bring him 
 
 within the range of the family religion and the protection 
 
 a 
 of the sacred filed. The auiopted son became juc real son 
 
 who could continue thekiecessary worship: and so adoption- 
 became of frequent occurrance . 
 
87 
 
 But the tribe was also enlarged by the accretion 
 of slaves which added laborers to the group and estab- 
 lished the relation of master and slave. That relation 
 is important because it involves to some e^ent the con- 
 stitution of the tribes, and also because it seems highly 
 probable that it was the primary mould or matrix which 
 gave us the relation of Master and Servant, from which 
 grew by a natural and obvious process that of Principal 
 and Agent in all its wide range of application. 
 
 How slavery originated we can easily see . It 
 was the fruit of war. Mong his captives the victor 
 sometimes found men whom he thought unfit for absorption 
 into the tribe on equal terms and worthless except for 
 menial service. Under the cruel custom of the time 
 their lives were forfeit, and the conqueror sparifed them 
 in exchange for their position and labor as slaves. He 
 thought he was merciful and his act one of grace, and that 
 the slave should toil gratefully for the master who saved 
 his life. That master did not feel that he was guilty 
 of any wrong. The growth of the Tribe and the normal 
 increase of its wants pressed heavily upon the women as 
 workers in the field and drudges in the household, and 
 added to their degradation. (Jaite probably they felt the 
 increasing pressure, and welcomed -and encouraged a system 
 which not only lessened their burdens, but also tended 
 
88 
 
 somewhat to their elevation by putting below them a subject 
 race forced to do the hardest of the labor. We may guess 
 that slavery, bad as it was, made first possible in some 
 degree the lifting of the wife from her position of abject 
 servitude. The brutal husband had some one else to beat. 
 But we may not abuse our skin-clad ancestors for their adop- 
 tion of the system. Better and more intelligent men than 
 they maintained it, and added to it new sources of supply 
 beyond that of war. Itebt and Piracy helped its later in- 
 crease. Indeed, in our own time, we have heard the 
 Christian priest lauding it as a Divinely appointed insti- 
 tution, or blandly hushing the protest of the'peios against 
 it. The Hebrew life was full of ±± the system, and the 
 Mosaic law both recognized and regulated it. But that 
 law discloses one important element about it, bearing 
 keavily upon the search in iriaich we are engaged. The slave 
 was regarded as a member of the family and not as a 
 chattel or thing. As one of the family he owed implicit 
 obedience to its Head, was liable to stripes and death, 
 was doomed to severe labor in the fields and care of the 
 flocks and herds, but was entitled in return to food and 
 clothing and the protection of the group to which he be- 
 longed. Necessarily, as a member of the fatally, the 
 Father or the Patriarch was more or less answerable for 
 his conduct as it respected other persons and groups; 
 for the Head of the Family was its only and natural re pre- 
 
89 
 
 sentative either to punish or pay, and the act of the 
 slave would be charged against the master possessing the 
 absolute control. Judge Holmes says, speaking of a ser- 
 vant, that "his status maintains many marks of the time 
 when he was a slave. The liability of the master for his 
 torts is one instance. The notion that his personality 
 was merged in that of his family Head survived the era 
 of emancipation." 
 
 Over this enlarged group, made up of new families, 
 adopted members, and slaves predial and domestic, the 
 Father's authority inevitably spread, giving us the earli- 
 est trace of social order created and maintained by a 
 governing power. The situation has long been described 
 as the Patrisirchal system. It assumes that in the primi- 
 tive ages men were found living in clustered family groups, 
 the members having a common suaceetor actual or assumed, 
 held together by the ties of kinship, and governed or con- 
 trolled by the oldest or strongest and wisest male of the 
 family as the ruler and master of the group. Our belief 
 in th^system rests largely upon the character and necessi- 
 ties of the primitive people and the working of their natu- 
 ral instincts; but also upon the historical evidence which 
 exists in its favor, Uaine gives great weight to the 
 authority of Plato and Aristotle, both of whom describe the 
 system, and puts a larger}reliance upon their testimony 
 
90 
 
 because they stood comparatively neax to it, and speak 
 of what they profess to know with almost exceptional op- 
 portunities for the knowledge. The Hebrew life is full 
 of indications pointing in the same direction: and how far 
 reaching the Patriarch's power was admitted to be we can 
 easily infer when we read how Judah gave sentence of death 
 against his daughter in law; how Abram commanded an army 
 of his own family, and made a treaty of peace with 
 Abimilech. The right to judge, the right of life and 
 death, the right to make war and conclude peace;- these ent- 
 ered into the authority of the Patrieurch and made the out- 
 come of his parental power substantially despotic. 
 
 And thus, as the Family expands into the Tribe 
 and the father into the Patrieirch, carrying with him into 
 his enlarged dominion the normal characteristics of his 
 paternal relation, we shall find him developing two lines 
 of natural evolution, one of which leads directly to 
 ultimate legal doctrine auad the other to an imperative 
 legal authority. The first of these is the communal 
 cheoracter of property in land and of the flocks and herds 
 regarded more or less as belonging to it, but slowly 
 giving way to the persistent pressure of the individual 
 claim; and the second the inevitable transition from 
 father and patriarch to Chief or King and the growth under 
 the latter of a crude but imperative Law, each of which 
 
91 
 
 has an importance requiring some patient consideratioh. 
 
 That the land of the tribal occupants, though 
 managed and controlled by father or patriarch, should 
 come to be regarded as also in some degree the property 
 of the children, since they shared its benefits and fur- 
 nished an added force to its care and control, was a 
 natural outgrowth of the early family relation, and that 
 it retained its hold for a long period will become obvious 
 from a search in many directions. 
 
 Traces of the system as ^^agLsting and in operation 
 are found in the |oint family of the Hindu, in the 
 House communities of the South Slavonians, in the villages 
 of the American Indian, and even among the Germans and 
 in England. 
 
 The primitive Joint Family as found in India has 
 been described for us by many observers. It consists of 
 a group of related members, having a common house and 
 common table, and also possessing their arable fields and 
 pasture areas in common, but occupying and tilling them 
 under rules and regulations prescribed by a long continued 
 custom. More or less, portions or strips may be allotted 
 severally, but subject to the control of a chosen manager 
 and to a redistribution. There appears to attach to this 
 undivided possession a possibility of seveijance into in- 
 dividual rights, but as a fact that severance reurely occurs 
 
92 
 
 While the land remains Tindivided no member of the group 
 can be said to own or possdse any particular share, though 
 a private ownership is observable in what we class as 
 personal property. When a number of such families come 
 together and form the Village Community a change occurs 
 in the situation. The common house and common table dis- 
 appear. Each family has its separate home which no one 
 may invade. The arable fields are divided, the pasture 
 lands partially, but the waste remains in common. Evi- 
 dently a process of evolving individual rights^ has begun 
 and suggests to us quite clearly the. antecjiedent co-owner- 
 ship which is slowly breaking up. 
 
 Something similar appears in the South Slavonian 
 village communities though developing a more definite 
 trace of the governing authority. They are each but an 
 extension of the Family, living together in a common group 
 of dwellings, all following the same occupation and ruled 
 by the same Chief. It is worth our while to study that 
 House -Chief or Domatohin governing a Slavonian group. 
 We may copy literally Sir Henry Main*s description of 
 him. "He alone represents the association in its dealings 
 with other persons and members. The administration of all 
 affairs is in his hands: he allots the daily tasks: he 
 presides at tfce common meals and distributes the food: 
 he reprimands for faults and delinquencies: he is invari- 
 ably addressed in language of the greatest respect: all rise 
 
93 
 
 at his entrance: no one covers his head or smokes in his 
 presence: no amusement or ceremony commences till he has 
 appeared or has announced that he will stay away. The 
 council of the brotherhood does not review his acts, hut 
 it is expected that he will submit important cases to it, 
 and its jurisdiction is called into exercise when new 
 principles of administration have to be settled." The 
 description thus given us has several remarkable elements. 
 ^ seem to see a little king governing a small state with 
 the aid of a crude cabinet council* We seem to be look- 
 ing at a modern limited monarchy through a reversed field 
 glass, and gaining something more than a hint of its 
 origin and evolution. But beyond that, the curious facts 
 lead Maine on into a criticism of Austin. He says: "It 
 is impossible to apply the terms ^sovereign', 'sanction', 
 •right' to the customary law under which the Indian com- 
 munities have lived for centuries. The council of village 
 elders does not command anything; it merely declares what 
 has always been. Nor does it generally declare that which 
 it believes some highe r power to have commanded: those 
 most entitled to speak on the subject deny that the natives 
 of India necessarily require Divine or political authority 
 as the basis of their usages: their antiquity is by itself 
 assumed to be a sufficient reason for obeying them. Hor, 
 in the sense of the analytical jurists, is there a right or 
 
94 
 
 a duty in an Indian village community: a person aggrieved 
 complains not of an individual wrong but of the disturbance 
 of the order of the entire little society. More than all, 
 customary law is not enforced by a Sanction. In the al- 
 most inconceivable case of disobedience to the award of 
 the village council the sole punishment would appear to be 
 universal disapprobation. And hence, under the system of 
 Bentham and Austin, the customary law of India would have 
 to be called morality, — an inversion of language which 
 scarcely requires to be formally protested against." 
 That is a very serious criticism. It goes down among the 
 foundations. We should not try to test it or take its 
 measure until we have gathered all our facts and can see 
 with a wider vision; but meantime we may venture the sug- 
 gestion that the modern definition of Positive Law is not 
 logicaGLly bound to cover the operative customs of the 
 Indian village unless those customs are to be regarded as 
 within the domain and boundaries of that Positive Law 
 itself. To that idea we demur. Those rude rules are, in- 
 deed, something more suid stronger than mere morality, but 
 they are also something less than and different from Posi- 
 tive Law. They stand midway between the two and may be 
 called, as Maine calls them, customary law, but only by 
 analogy;- just as we call the customs of politeness and 
 social courtesy Ifiws because generally obeyed though 
 
95 
 
 emanating from no known sovereign and backed by no 
 sanction except public opinion. That customary law of 
 the Indian village seems to us to be inchoate law, law 
 only in the germ period of its origin, needing to be first 
 defined and then enforced, and not yet to be called or 
 classed as Positive Law. 
 
 Further traces of Village Communities and of the 
 undivided ownership of land are found among the Iroquois 
 or six nations to whom we have heretofore referred. Each 
 nationj^ was xk a bundle of tribes whose members were held 
 toge-l^jtier by kinship, and who perpetuated the memory of the 
 relationship by totemic marks or S3rmbols. These marks 
 were a form of that picture-writing common among rude 
 races, and assigned to each group of savage kin the name 
 and symbol of some animal known to their e^erience. The 
 wolves hunted in packs, the beavers built in groups, the 
 snipe flew in flocks, the fishes swam in schools, and such 
 animal brotherhoods suggested names for the related savages 
 The Senecas thus were divided into eight of such tribes, 
 each marked by the totem or siwabol of its chosen animal. 
 These were the Wolf, Bear, and Turtle, the Beaver and 
 Deer, the Snipe, Heron, and Hawk. The Oayugas, had the 
 same divisions except that the Eel was substituted for the 
 Heron. Each member of one of these totemic groups was 
 brother to all the others into whatever Nations of the 
 Confederacy they had becaae scattered, and as such he couM 
 
96 
 
 not marry in his own group but was bound to choose his 
 bride from some one of the others. They were ruled by 
 Sachems whose office was hereditary in some one totemic 
 group but within that limit were chosen by selection. 
 Usually they were old men, preferred for their wisdom 
 and experience, and administered the affairs of the nation 
 in times of peace. But there was a safety-valve for the 
 warlike vigor and ambition of the younger men in the in- 
 stitution of Chiefs, who led the war -parties and won their 
 elevation by deeds of daring and success against the enemy. 
 In this governmentfiLl system the traces of paternal authority 
 
 remain im the age and wisdom of the Sachems and in the 
 hereditary element affecting their choice, but Custom and 
 the idea of utility largely controlled the administration 
 and give us a glimpse of something approaching an oligeirchy. 
 The several tribes lived in villages, the bark or log 
 houses often holding a group of related families each 
 having its separate fire under Jl) the same roof. Some of 
 these houses were long enough to hold twenty families. 
 The leuid surrounding the village was the common property 
 of the tribesmen, but could be occupied and cultivated by 
 a family group in common among themselves. They had orch- 
 ards of apple and peach trees belonging to all, and planted 
 leorge fields of corn, covering areas so great as to exclude 
 any theory of several parcels. Morgan tells us that their 
 
97 
 
 property, though inconsiderable, was held and subject to 
 distribution under fixed laws and that "no individual could 
 obtain the absolute title to land, as that was vested by 
 the laws of the Iroquois in all the people." Parkman 
 tells us of the Abenaqucs and Hurons that the land was 
 possessed only by the Tribes, and when transferred title 
 was f iven by 3:a3rsza£xiksxizai^BS±xx±xzails:ikKxpsB|)iBx the 
 Chiefs as representatives of the tribesmen. 
 
 If we turn now to the Teutonic community as found- 
 in Germany we shall see a later stage of the same phenomena. 
 That community consisted of a group of families undoubted- 
 ly claiming descent from a common ancestor, and so more 
 or less associated by bonds of kinship, holding possession 
 of a district divided into three portions called marks. 
 These were the mark of the toxvnship or village, the common 
 mark or waste, and the arable mark or cultivated fields. 
 Each family had its dwelling house governed and controlled 
 by the father or the Head wielding the parental authority, 
 into which no other villager was at liberty to enter with- 
 out his permission; and then its arable mark which it could 
 cultibate for the purpose of its annual product and ap- 
 propriate such product to its separate use, subject however 
 to the limitations of the common convenience; and has also 
 its right in the Common Mark or Waste but intermixed with 
 the similar rights of the other villagers and modified and 
 
98 
 
 controlled by theirs. Some elected or hereditary officer 
 watched over that common use and required that it should 
 be equally apportioned among all entitled. Indeed the 
 arable mark itself, though it could be and was cultivated 
 in several port ions, yet could only be cultivated by sowing 
 and planting the same crops as those of the other holders. 
 Once in three years, after a single rotation of crops, it 
 was required to lie fallow; in that condition was open to 
 the flocks of the other villagers; and was equally so 
 when the crops were gathered and only the stubble remained. 
 Probably the arable mark was taJcen from the common mark; 
 and there is reason to believe that there was sometimes 
 a re -distribution which located the whole arafele mark in 
 another part of the district. .Obviously in this system 
 we see evolved an important and astonishing fact — that as to 
 land crude possession in common came first in the order of 
 growth, but was gradually invaded and finally in great de- 
 gree supplanted by a|s®veral system of cultivation. But 
 this seems to have been a development from the crude and 
 more communal form of the older German life . We , who go 
 back to our vigorous but unreflecting youth, when the 
 Latin of Caesar and Tacitus was but a field to be fought 
 over with strange 4, nouns and cruel verbs, may realize, 
 what we did not then appreciate, the good fortune which 
 gave to Germany and Gaul two such intelligent and careful 
 historians. If the ager pro numer o of Tacitus has been 
 
99 
 
 deemed an untranslateable sentence, or currupted by scjme 
 scribes mistake, it is still beyond carping that he declares 
 an annual change of the arable lands and a new allotment of 
 cultivating shares inconsistent with private ownership. And 
 there is no verbal criticism of Caesar's statement respect- 
 ing the Suevi with their hundred cantons that there was among 
 them no private or several cultivating fields. Each year half 
 the men went out to the inevitable war with stranger groups 
 and half remained to till the soil, and so each man alter- 
 nately fought and ploughed: and it was not permitted to oc- 
 cupy the same spot for more than one yegtr on account of 
 cultivation. 
 
 There are also distinct traces of the Joint Family 
 or Village Community in the early history of England and out 
 of that has probably grown the law of joint tenancy, of 
 tenancy in common and of co-parcenary; auLthough the continu- 
 ity of the evolution is supposed to have been broken, by the 
 storms of conquest vesting the land in a few as spoil of 
 war. Nevertheless the old English manor betrays many traces 
 of the ancient holdings in common. Proof of the prevalence 
 of the custom is found in the recitals of an early statute 
 changing the calendar, or open fields, as intermixed lands 
 or lot meadows. Maine tells us that the common fields were 
 almost invariably divided into three long strips, separated 
 by green baulks of turf: that the several properties con- 
 
100 
 
 sisted of subdivisions of these strips sometimes exceedingly 
 minute J that the seveaal shares were originally equal or 
 nearly so; that each bore two cvpps in a yearly rotation 
 and then lay fallow; that the right to feed sheep or cattle 
 on the whole of a strip during its fallow year and upon the 
 grass of the kaulks when the crops were out of the way was 
 always conceded; and that such common and open fields 
 covered one half of Berkshire and Wiltshire, 50,000 acres 
 on Wsirwickshire and 130,000 in Huntingdonshire; and that the 
 grassy baulks which anciently separated the three fields 
 are yet visible on the line of the railway which leads to 
 Cambridge. About this co-ownership of land, as an original 
 fact in England, Maitland appears to be in doubt, and phrases 
 that doubt in terms which are little short of sarcastic. 
 In his "Domesday Book and Beyond" he devotes a whole secstion 
 to the Village Community- He begins by applying the legal 
 tests of the 19th century to the rude relations of almost 
 a thousand years earlier. The Comiminity was not a corpora- 
 tion he says, and we dare not call it such. That is very 
 true; but shall we offend his followers by hereafter point- 
 ing out how closely it resembled one in the rudeness of its 
 actual facts? He says co-dSirnership is ownership by individ- 
 uals. True again of our modern system awarding to each ten- 
 ant in common a definite and aliquot shsure : but did the Mo- 
 hawk families in their long house understand so much, and 
 meditate actions of partition to sever corn-field or apple 
 
101 
 
 l«'l 
 
 2--' 
 
 orchard? Then he seems to think that the theory is somehow 
 confused with a governmental power over the land. That ^ so 
 to some e^)^ent may he true, but such confusion ea^sted in 
 the primitive relations themselves. The Germaui chief and 
 the Saxon boor were not much given to analysis . They were 
 more skillful at brewing beer than at clear thinking, and 
 mixed9( rule and right in one and the same tankard. Then he 
 points out that the Teutonic fields were divided into strips 
 which an individual or family group tilled for itself. That 
 we have already said and it shows us how the private owner- 
 ship is severing itself from the earlier common possession. 
 In describing the old English borough he ei^lains away 
 with some astuteness entries which show the burgesses as a 
 group owning rights of common outside the walls, but finally 
 comes upon am entry which "perhaps ascribes" to the com- 
 munity of burgesses in Colchester "the ownership or the 
 tenancy of fourscore acres of land and of a strip eight 
 perches in width surrounding the town wall.f His only com- 
 mentary is that the entry is "obscure". Of that which says 
 "All the burgess of Oxford have pasture in common outside 
 the wall which brings in to the King 6s. 8d." he suggests a 
 possible several right attached to each burgage tenement. 
 But with all his criticsm Maitland is a thoroughly fair and 
 honest investigator, and so admits that the German village 
 had "lands vbich in a certain sense belonged to it, and 
 which were not allotted for good and all among its various 
 
102 
 
 members"; that "the meadows were often subjected to a 
 more cwmmaiii^al scheme": that "we may see them annually 
 redistributed by rotation or by lot among the owners of the 
 arable": that also "there were woods and pastures" and "if 
 we must at once find an owner for this Alme nde we may be in- 
 clined to place the ownership in a Village Community" though 
 without forgetting in what it is likely to develop. After 
 all therefore, and "to all seeming", Maitland does not 
 differ much from Maine , and we may assume as historically 
 established the priority of communal land-ownership. 
 
 But this result is also natural and one to be ms^ 
 expected. We have only to consider the situation and sur- 
 roundings of the primitive groups to feel sure that the 
 occupation of land and then its ownership would be in com- 
 mon. In the hunter state it was not ^tncanted except as air 
 and light were wanted, and like air and light was open to 
 all. It could not be held in the hand like the hatchet and 
 spear, and so fall into an obvious and physical control, 
 and that handp-seizure smd hand-holding was the root and 
 type of barbarian ownership. The land was wanted only to 
 wander over in pursuit of game. Even the cave dwelling or 
 the bark hut|^/ was but a temporary occupation likely to be 
 abandonded for slight cause or for mere love of change. 
 The only approach to leind ownership, and that a very faint 
 and distant one, was the common and tribal control of the 
 region held for the hunt. But a change is inevitable when 
 
105 
 
 the hunter be cones a tiller of the soil. He no longer 
 wanddrs but stzs^s stays. His home becomes permanent. 
 Over that he begins to exercise an exclusive control, to shut© 
 out others and act as master of the narrow domain. Yet it 
 is the group that continues to cultivate the fields about; 
 and the orchards planted, the wide growth of corn and th^. 
 herds in the pasture gained by the common risk}^ or toil 
 are held in common or by the Chief as representative of all. 
 And that follows because in a condition of constant war it 
 is the group that must defend, it is the group that must 
 pay or suffer. And so we axe enabled to understand and 
 account for facts already noted or sure to face us here- 
 after and which are these: that the family land as a general 
 rule was practically inalienable: that even the plough 
 oxen could not be sold at all, or at least their transfer 
 was obstructed by rigid and difficult forms: that in the 
 barbarian period wd find at first no instances of Isind 
 skies between several owners acEfcing in private right: that 
 when a member of a group leaves it he abandons all interest 
 in the land left behind him and has nothing to ceirry away: 
 that if he is admitted into another group it is only by a 
 unanimous vote of its members and the dissent of a single 
 one will exclude him: that when so admitted he buys nothing 
 but has a cultivating share allotted to him: that if he 
 rebels against the authority of the family father and throws 
 
104 
 
 it off by some formal act he loses all right to the family 
 property: and that when at a later period we come upon 
 charters purporting to transfer land to a several ownership 
 we shall find them often signed by the king or the lord on 
 the one hand, and the expectant heirs on the other. These 
 facts, xxAxtJBX which we shall meet as we proceed, have their 
 sufficient explajiation only in the primary fact of com- 
 munal ownership. 
 
 It may very well be that Maitland's criticism re- 
 sults from an application of the modern conception of sui 
 abstract ownership to a period and a situation destitute of 
 any such definite conception. If we should say that the 
 ownership of the individual was evolved, not from an owner- 
 ship in common, but from a communal occupation of land we 
 might come nearer to the truth and avoid the criticism. 
 
 Finally on this subject we may confront Maitland 
 not only with Maine before him but with Vinogradoff com- 
 ing after. The latter in his "Growth of the Manor" 
 studies the subject exhaustively, and with a thorough and 
 detailed investigation, the ultimate result of whicji he 
 ^S^resses thus: "One can scarcely escape the conclusion 
 that whatever inroads the individual or the State may 
 have made upon it, and whatever bias legal theory may have 
 shown towards more definite and individualistic conceptions, 
 the average English householder of the middle ages lived 
 
105 
 
 under conditions in which his power of free disposal and 
 free management was hemmed in on all sides by customs and 
 rules converging towards the conceptions of a community of 
 interests and rights between all the household shauces of a 
 village." In that carefully guarded statement we may eas- 
 ily concur. 
 
 But we should not part with the Joint Undivided 
 Family and the Village Community without observing how 
 they perpetuated themselves among later institutions, and 
 in a modified form resolved themselves in our modern law. 
 We have already observed with what solidity, by what ties 
 of blood and worship these primitive groups were bound to- 
 gether and how they dealt with other groups as the sole 
 responsible unit. Let us reoeuLl some of the facts which 
 have been saved from the archaic darkness. If orchards 
 aire destroyed or corn-fields burned, or cattle abdiifcted 
 the loss is that of the Family or the Clan and all members 
 suffer suLike. If a suscessful raid brings horses or flocks 
 into the camp they become the possession of all, who are 
 thus sharers in every /profit and every loss. If other 
 groups have relations with them, peace or war to be declared, 
 compensation for killing or robbery to be made, the dealing 
 is between the groups as such and in the aggregate, and not 
 
 WI^Eth the members of each. If one of those members dies his 
 children in^®^^* ^°^® °^ the common possessions. They take 
 
106 ±< 
 
 their share by force of their status as elements of the 
 group and not by inheritance. The kiaus)^ blood-price is 
 paid ty the House or Clan of the slayer to the House or 
 Clan of the slain, suad the compromise is between the 
 groups and not between individuals. Other facts point in 
 the same direction, but enough have been recalled to show 
 that every Family came to be regarded as a unit, as a 
 noun of multitude, almost if not quite as an artificial 
 person. It suggested ajid opened the way to that series of 
 abstractions developed in the construction of Corporations. 
 The latter, as we^them, beea: a close resemblance to their 
 ruder prototT^pe which we believe to be something more than 
 a mere analogy. A common capital and a common interest 
 holds them together instead of the ties of kin, and serves 
 the purppise of a compacting pressiore: they gain and lose 
 and deal as an aggregate whole, and are the ai sole repre- 
 sental^tive of their elemental units: they exist as a permit- 
 ted fiction or abstraction, but clothed with the life and 
 power of actual vitality: and seem in addition to have in- 
 herited less desirable peculiarities of the primitive group. 
 Some of the Corporations of our day have followed the bar-^ 
 barian method of warring upon or absorbing as if by adoption 
 all rivals in business, of dominating the field of produc- 
 tion as the Indian did his hunting grounds, of driving off 
 dmtruders seeking any share of the game, and making them- 
 
107 
 
 selves masters of wide business areas. This evolution 
 of corporate action from the Family ownership is fully 
 recognized by Markby in his^Elements of Law". He says, 
 "It is now a well established fact that Family ownership 
 is the oldest form of ownership, and very high authorities 
 think that in the original form it was pretty much the 
 same thing as that which we now call corporate ownership." 
 We may trust that statement as substantially true emd so 
 assume that in all material and essential respects the 
 Joint Undivided Family was of a corporate nature in its 
 construction and at least imitated a body corporate in its 
 external activity. It had its House-father as a President 
 or managing agent , its council to be consulted in emerg- 
 encies like a board of Directors or Trustees, its separate 
 members like stockholders sharing in the profit and loss, 
 and, most Important of all, dealing in its relations with 
 others as a distinct aggregate, an abstract entity, sepa- 
 rate and apart from its individual elements. As it furnished 
 the germinal notion of a corporate body, and demonstrated 
 in many ways the value of that notion, it is also easy to 
 see how it developed into the township as the unit of 
 political organization. When the personal tie of blood 
 begins to weaken under the strain of property rights and 
 the mingling of strangers brought in by adoption it is only 
 needed to substitute for that bond the influence of neighor- 
 hood and the boundaries of territory to produce the municipal 
 
108 
 
 corporationjf, re-placing and. doing the work of both Family 
 and Clan. The change was sure to cone when a crowd of new 
 citizens stood outside of the ezclusiveness of the Gens and 
 clamored for a share of the government: still more when the 
 common possession had given way to the individual ownership 
 through the steady invasion of personal interest and ambi- 
 tion. An early instance of this natural and inevitable 
 change appears in Greece. When Kleisthenes, after the ex<- 
 pulsion of the tyrant Hippias, sought to build up an ap- 
 proach to republican institutions, he dissolved the four 
 Ionic tribes in whose phratries united by a common ddscent 
 were absorbed all <iStizenship, and substituted two demes 
 or cantons or townships, thus extending political rights 
 beyond the excluding kinship of the phratries, and includ- 
 ing immigrants and residents outside of that kin, and vCDn- 
 f erring political rights by the broader measure of terri- 
 tory and locality. 
 
 While that change was always possible on the sur- 
 face, and prevailed more and more as civilization advanced, 
 yet the ties of the House and the Clan long survived in 
 the hearts and the habits of the Clansmen. Almost to our 
 day it has been a power to be reckoned with in the High- 
 lands of Scotland. Sir Walter Scott, in his introduction 
 to Rob Roy, SLfter describing the long and bloody history 
 of the Cleui McGregor, which survived the most desperate 
 
109 
 
 efforts both of Law and Force to blot it out, speaks of it 
 as presenting "a rare and interesting example of the in- 
 delible cheuracter of the patriarchal system". And even 
 in our time it is not possible to sneer at x£ or forget 
 that inbred loyalty to an ancient House and Name which 
 is held with pride and commsuids the courage and devotion of 
 all who are born in its line. 
 
 But these tribes fluctuated in numbers and strength, 
 gained or lost as consequence of victory or defeat, and tkxsx 
 through the rule of a valorous or unwarlike Chief, On 
 occasion, a strong tribe, under the leadership of more than 
 the average toravery and skill, subdued many of those on its 
 borders, and united them to itself as vassal tribes: or, 
 to resist its aggressive march, weaker tribes coalesced 
 and put themselves under some single leadership which con- 
 solidated their strength and added to their capacities for 
 defense. These latter alliances sometimes outlasted the 
 occasion, and held together in fear of attack when war had 
 ceased. All over the known world, for one or the other 
 of these reasons the tribes were in constant motion, and 
 es^ibiting perpetual changes. We see Ariovistus, — ^barbarian 
 Chief of a single group, — ruling over six vassal tribes 
 substantially anne^d to his own and forming one dominion. 
 We see the Iroquois confederacy adding to its number and 
 subjecting to its rule the remnant of the Tuscaroras. We 
 
110 
 
 see Rome built up into a nation and a state by consolidat- 
 ing with itself a multitude of Italian tribes and melting 
 into its sovereignty the Sabine mountaineer, the Etruscan 
 artisan, the Albans lost when their three champions fell, 
 and a host beside conquered in unending wars. We see in 
 Britain the tribes continually growing or disintegrating, 
 soon crystallizing into a hepteuachy, and falling finally 
 under one dominion. And thus we confront the Nation and 
 the State, a period of approaching government and order, 
 where there comes for our study the King, representative 
 of a centrgil power under whose sovereignty and with the 
 aid of whose power morality and custom will crystallize in- 
 to the imperative form of Law. 
 
Ill 
 
 , ^. '* 
 
 IV. 
 
 TORT AND POSSESSIOK. 
 
 We have reached the King and the State, but must 
 bid them wait until we have brought up to the level of 
 their Tigie and the beginning of their infliience the primi- 
 tive Man's ide&e of possession both as a fact and as a 
 Right, and then his way of dealing with its violation and 
 hie method of resenting and redressing personal wrongs. 
 We have already derived his original notion of possession 
 as a fact from the eg^ension of his personality over 
 things about him which he deemed essential to his life and 
 then to his serfety and freedom, and even to his comfort 
 and convenience. How that notion developed and in what it 
 resulted under the influences of the family and then of the 
 tribal group we should now consider. 
 
 Undoubtedly his first idea of possession was, as we 
 have said, that of physical detention, manual holding, per- 
 sonal contact with the thing possessed. But the notion 
 outgrew that primary limit, and must have done so swiftly. 
 He did not carry all his weapons with him continually- They 
 grew to be too numerous for that, and often he left some 
 of them at home when gone for a hunt, and possibly, return- 
 ing, found that he had forgotten his hatchet struck into a 
 tree in the forest. Evidently he regarded them as none 
 
112 
 
 the lees possessed, attached to his own personality, although 
 a manual holding was temporarily abandoned. He went after 
 his hatchet expecting to find it and reclaim it, and re- 
 garded the weapons left at home as equally and continiially 
 his although for the time out of his sight. They were not 
 in the grasp of his hguid, but were within his control and 
 the right which his thought had derived from physical de- 
 tention as an extension of his personality over them broad- 
 ened into an equal right when they were out of his touch 
 but within his control real or supposed. What was tangible 
 fact grew into an idea or feeling taking the place and do- 
 ing the work of physical contact. For the moment actual 
 detention was gone, but the power to resume it at will re- 
 mained, and the purpose to exercise that power whenever he 
 pleased was consciously present in his mind. That also 
 must have been his feeling relatively to his flocks and herds. 
 They were not literally in his hand; but were in his power, 
 and therefore he fel^^- himself to be their possessor. For 
 the same reason this was so when for a time his weapons with 
 his consent were in the actual physical holding of another. 
 His boys were using his bow and arrows to shoot at a mark, 
 learni^c| to aim straight and send the barb strong. He sat 
 ajid watched them, amused perhaps, but also interested. It 
 never once occurred to him that the weapon was any the less 
 in his possession, or that he had lost his personal dominance 
 over it; and that for two reasons; one, that he controlled 
 
113 
 
 the hands into which it had passed and so could compel a 
 return at any moment; and the other that his will to re- 
 sume possession had not been parted with or surrendered. 
 He was not conscious of it, but an idea, a thought, what 
 later would be called a right, was doing for him the actual 
 work of his hands when his hands were idle. But if his 
 weapon was taken from him. by force or theft and so against 
 his will he would regard it as lost and his possession as 
 ended. What would ticKx come then would be a desire and 
 purpose of revenge , which would thke the form of retalia- 
 tion or Self -Help, and that as we have said indicates a 
 consciousness of a personal wrong suffered, which again 
 implies some conception of a natural right invaded. He 
 pursues the thief; finds him asleep. We hope he does not 
 kill him: we are afraid he does: but he regains his weapon 
 and brings it home . What is his thought about it: — his , 
 we caution oiirselves, not ours projected backwsord. Can 
 he help the feeling that he has simply re -possessed him- 
 self of what was his? Instead does he think that he has 
 been violating a stranger's possession? Surely not the 
 latter but something more justifiable ; and so his 'action 
 betrays to us a rude idea of the right to have and retain 
 possession. He cannot- describe it, but we are certain that 
 he feels it: and some day the law will come and will define 
 that possession, and in so doing will say, as Markby declares 
 
114 
 
 it should, that possession is the jsw power of exclusive 
 control over a thing coupled with an intent to exercise 
 such control. That pictures abstractly the precise action 
 and conduct of our imaginary savage : and the Law's defini- 
 tion is framed upon the group or gather of concrete facts 
 which that primitive life disclosed. The man's relation 
 to the things possessed was not at all created by the Law 
 but ante -dated its coming, and was found, existent and 
 operative, when, that Law first began to build up its authori- 
 ty. It found the relation: it did not make : but, recog- 
 nizing both its necessity and utility, studied what it 
 found so as to accurately define it and then gave it the 
 protection very much needed. We shall find that to be the 
 invariable process by which the Law frames and establisheel 
 its rules. 
 
 But out of interference with the possession of theT*^ 
 has grown a conception of a wrong, which is further intensi- 
 fied when violence is done to his person threatening his 
 life or safety. He resents either, and seeks at once re- 
 dress or revenge. The two wrongs most likely to attend 
 his relations with other men or stronger groups were un- 
 doubtedly Homicide and Theft in some of their forms or 
 degrees. Outside of the chronic warfare between families 
 and larger groups of kin there were continual outbreaks of 
 personal and individual violence provoked sometimes by the 
 
115 
 
 clash of conflicting desires and interests, often by the 
 stealing of wives, but quite generally by the pride of 
 personal strength and the rivalry of physical bravery. 
 Neither murder nor robbery were wrongs in guiy ethical 
 sense for as yet there was no sucji quality distinctly per- 
 ceptible in any conduct. Individual selfishness was the 
 only existing standard. By the thief who had stolen the 
 cattle of a stranger the exploit was deemed honorable 
 and praiseworthy, a subject of pride and congratulation. 
 Grote describes for us how stealing and plunder were re- 
 garded as entirely right among the legendary Greeks, and 
 how piracy was as respectable as commerce. To the man 
 whose possession had been destroyed the act stood as a 
 personal wrong in the sense only that it invaded his per- 
 sonality and occasioned a sensible loss and heurm. The act 
 was not a theft or robbery in the legal sense of those 
 teams, because they assume the pre-e^stence of a property 
 right in the thing stolen, and no such legal conception had 
 yet been developed. The Indian ^o stampeded the horses 
 of a camp bore them off with pride and without conscious- 
 ness of guilt. He was simply, as the itatocrat of the 
 Breakfast taMe described him, * a bundle of instincts on 
 two legs carrying a tomahawk". The act done, relatively to 
 the injured party, resembled most nearly what we now call 
 a trespass. It was a violation of another's possession 
 
116 
 
 which he was certain to regard as e!|wrong. It invariably 
 
 roused in him an ugly temper and a desire for revenge. 
 
 Its most remarkable emd important manifestation was 
 
 in cases of Homicide, The murder was not regarded as an 
 
 offense against the public order and welfare, ]ud but solely 
 
 as a private wrong inflicted upon the family group to which 
 
 the dead man belonged. The harm struck them. It took away 
 
 a hatchet from the war, an fiurrow from the hunt, a member 
 
 from the group; and the ties of kinship required, not only 
 
 a united and combined defense against assault, but also a 
 
 persistent and unsleeping revenge for a killing. Both sides 
 
 understood it. The slayer realized that the avenger of blood 
 
 trdil 
 was on his track, sure to follow his txixi wherever it led, 
 
 and to enforce the customary redress of blood for blood, a 
 life for a life. That avenger was often chosen specially 
 by the family of the dead maji. They regarded the intended 
 vengeance as a sacred duty, and at first no account was 
 taken of the degree of the crime. There were no degrees, 
 and it was not even an en^pase that the killing was acciden- 
 tal. The family looked no further than the dead body. 
 That was a tangible fact and required simply that there 
 should be another dead body. Some degree of civilization 
 had to be reached before a consideration of motive could 
 be allowed to qualify the character of the act. 
 
117 
 
 Among^he Indians of this continent the custom of 
 the bcbood-feud prevailed almost univer silly. The avenger 
 struck at once the trail of the slayer and followed it 
 with a pertinacity oblivious of heat or cold, of hunger 
 or dan]ger, until retribution was accomplished. It is told 
 of the Morlacchi, a tribe of Illyrian Sclavonians, that 
 among them revenge and justice have exactly the same mean- 
 ing, and a Morlach who has killed another of a powerful 
 family is commonly obliged to save himself by flight, and 
 keep out of the way for several years. Green says of the 
 esirly English that among them, as among all the barbarous 
 races of mankind, justice had originally sprung from each 
 man's personal action; that there had been a time when 
 every freeman was his own avenger. 
 
 Abviously, all this is so natural as to be inevit- 
 able. Every man of a primitive group would instinctively 
 strike back when assailed, and if slain in the combat his 
 kin would asswne the quarrel as ending in an injury or an 
 insult to themselves. But quite early the redress grew into 
 another form, in all probability occasioned by considera- 
 tions of convenience and a desire to lessen the evil of 
 such continual and bloody feuds. It became common for the 
 slayer or his friends to avett reVenge by the offer of 
 compensation for the injury done, which the friends of the 
 person slain might accept as an atonement for the wrong. 
 
118 
 
 in which event the life of the slayer was no longer imperilled. 
 In England this compensation was known as the wergild. 
 The freeman's life and the freeman's limb had each, on this 
 system, its approved price, and that was paid by the family 
 or House of the wrong-doer to the family or House of the 
 wronged. Even in the Homeric age the custom prevailed. 
 The Iliad depicts, as one of the scenes blazoned on the 
 shield of Achilles, the dispute of two litigants over the 
 question whether the proper compensation for a homicide 
 had been made. The old men of the Agora, chiefs or Gerontes 
 acting as arbitrators, are s'itting upon their stone seats 
 and listening to the conflicting claims. And when Agamem- 
 non has offered to Achilles, "sulking in his tents", compen- 
 sation for the seizure of Briseis, — talents of gold, reful- 
 gent vases, sacred tripods, horses of flashing speed, 
 Sesbian captives, and the maiden herself, — all of which 
 the angry chief scornfully rejects, the stern Ajax com- 
 pares the offer and refusal with the custom of compensa- 
 tion for homicide, 
 
 "if a brother bleed 
 
 On just atonement we remit the deed: 
 
 A sire the slaughter of his son forgives: 
 
 The price of blood discharged the murderer lives. 
 
 The haughtiest hearts at length their rage resign 
 
 And gifts can conquer every soul but thine." 
 
 This blood price was termed in the Homeric Greek noCvy,s 
 from which came the Latin word £oena, and the English penal 
 
119 
 
 and penalty; and the identity of the word in its travel 
 through enlsirged meanings, indicates how liability to make 
 compensation to individuals for wrongs, and later to the State 
 for crimes committed or attempted, grew out of the primitive 
 blood^feud and the method of mitigating its consequences of 
 violence and disorder. Indeed the civil law of torts and the 
 penal law of crimes at this day realize the idea of revenge 
 as a natural instinct only to be pacified and parried by 
 providing some equivalent compensation or punishment. We 
 may despise the barbarian for taking the price of blood, 
 but our contempt must die away iifcen we recall the law now 
 in force giving coijipensation to the n^tg; of kin for a life 
 destroyed by negligence, and exerting compulsory power to fa 
 force the payment : when we see the life of the murderer 
 choked out of him by the rope or shocked out of him in the 
 electric chair, thus echoing the old barbarian rule of a 
 life for a life : and when we observe that where a tort or 
 a wrong has been committed wilfully and maliciously and 
 with circumstances of aggravation the law allows what it 
 describes as punitive or vindictive damages, going beyond 
 compensation for tangible Ipse, and feeding in truth the 
 revenge of the complainant, while disguising the allowance 
 under the cloak of an effort to repress similar infractions 
 pf personal rights. 
 
 The line of evolution is historically clear and did- 
 
ISO 
 
 tinct. At first men are their own avengers, the only- 
 approach to redress is through Self -Help; and this is 
 necessarily so for such is the normal instinct;^ and the 
 sole method of securing protection and safety. Next, the 
 friends of the slayer, desiring to save him and themselves 
 from the impending Retaliation seek to buy off the ven- 
 geance with gifts. Tacitus describes the Teutonic way of 
 buying peace by gifts of flocks and herds, and the pith of 
 the transaction was expressed in the old English maxim, 
 " man must buy off the spear or bear it". Repeated instances 
 of such composition created a habit ripening into a prevail- 
 ing custom, but acceptance or rejection of the offer rested 
 wholly with the family or clan of the deceased. In the be- 
 ginning they violated no social rule 4f they refused the sit 
 offer and clung to their revenge. But more and more the 
 evils of such a state of things became apparent, until 
 BBDij!EXLsatt composition grew to be the rule and retaliation 
 the exception. As the custom hardened into greater con- 
 trolling force questions arose over the equivalent to be 
 paid; of how much and to whom. As to the first there was 
 abundant foom for disagreement. We have been told of the 
 forethought of a chief when notified that a missionary or 
 negotiator desired to visit his tribe, manifested by the 
 request that the stranger's value should be fixed because 
 the young men of the tribe might kill him and tfeel price 
 
131 
 
 should be agreed upon to avoid trouble. He desired to 
 simplify matters. When disagreement as to amount arose 
 the Chiefs or Head-men, anxious to preserve peace, gradual- 
 ly intervened. But they came into the strife simply as 
 advisers and friends. At first, they could decide nothing 
 but only persuade. Naturally their advice more and more 
 prevailed until, becoming a usual and customary resort, it 
 took on some semblance of authority. It could be disobeyed, - 
 it had no sanction behind it, — it was not law^ — and yet 
 was rarely resisted. Naturally some part of the ccaaposition 
 in that manner settled became payable to the chiefs or 
 tribal rulers as a recognition of their aid and interven- 
 tion, and that in turn grew to be customary and expected 
 gtnd became the blood-wite. Such repeated arbitrations 
 tended to establish uniformity of prices, and those were 
 naturally graded according to the rank and condition of 
 the person slain, and were finally fixed and defined by 
 the governing authority. Among the Germans and the Kelts 
 the details of the wergeld ar the Eric, that is the man- 
 price, formed the largest portion of what they called 
 their law. In the laws of Huwelt the Good the blood price 
 of the King was 500 cows and a rod and platter of gold. In 
 the Salic law we shall find the wergeld settled with mar- 
 vellous detail and precision. There was a death-tariff ap- 
 propriate to persons of every degree, and the rules dictated 
 
128 
 
 to whom payment should be made, in what shares and in what 
 order of succession, how the fact of killing should be 
 established, and who should pay. But there the governing 
 authority for a time stopped. It ascertained the fact, it 
 settled the composition, but left the avenger to take it or 
 not. Professor Hearn cites on this point the rule of King 
 RothgLT in his laws of the Langobards which gave the rela- 
 tives of the slain their election between their customary 
 vengeance and acceptance of the fixed wergeld. If that 
 was not paid the rulers interfered no further, but left 
 the avenger to retaliate upon^the murderer or his clan. 
 The ne3^ step we may easily anticipate, gmd shall here- 
 after see more at large when and how it was taken. The 
 governing body forbids the individual revenge, and compels 
 the acceptance of the ascertained compensation in: discharge 
 of the wrong and as an equivalent in damages: and finally 
 ascends to the conception that the wrong to the individual 
 is a crime against the State, subversive of its order and 
 progress, and as such to be repressed by the threat and the 
 fact of punishment. 
 
 The eeurlier stages of this process show us the 
 primitive man righting his own wrongs, working out his per©c 
 sonal notion of personal justice, guarding his independence 
 and safety and possessions by force," as we egress it now- 
 adays, taking the law into his own hands. The old primitive 
 
123 
 
 instinct, the old barbarian habit of self-help, even yet 
 upon occasion breaks through thecnust of civilization, as 
 an extinct volcano sometimes bursts through the covering of 
 cultivation, the meadow and the orchard and the villas on 
 the slopes, and pours out its original and savage flow. In 
 ite some new settlement, swiftly formed, crowded with gold 
 hunters and the restless spirits of the race, criane out- 
 runs the law, then perverts and stupefies the law, and 
 finally defies the law, until Society, deprived of its 
 normal protection, desperate with its losses, savage in 
 the outbreak?^ of its revenge, reverts Tback 4t one enormous 
 bound to the original barbarian justice, and hangs its 
 scoundrel gangs at the very doors of a numb and astounded 
 
 Civilization. The ancient revenge was not confined to 
 
 swept 
 cases of homicide. It sspt the whole field of violence 
 
 and wrong, drawing few distinction?" measuring nothing with 
 the yard-stick of motive, acting roughly but promptly upon 
 facts as they occurred. If the primitive tribesman 
 found his cattle stolen or abducted he made reprisals upon 
 the robbea: clan: if he failed to re-claim his own, he took 
 all he could find in the possession of the plunderers: 
 first resorting to a sort of savage replevin, he set the ex- 
 ample and the type which the law now follows for the re- 
 storation of things taken without right; and failing in 
 that pursued his barbarian action of trespass and took a 
 liberal allowance of damages. If he caught the trespasser 
 
124 
 stealing he killed him, as even now we do not hesitate to 
 shoot the midnight burglax caught with plunder in his hands. 
 The life of one who assaulted wife or daughter was at the 
 mercy of the husband and father, and the rude original 
 instinct si yet breaks into the jail f of civilization in 
 seairch of revenge, or slays the offender and escapes at 
 the hands of a jury saturated with the barbarian's notion 
 of original justice. But in all these cases of primitive 
 redress the custom of compensation offered and accepted 
 slowly re-placed priirate revenge, .until damages awarded 
 by law became substituted for the rude remedy of force. 
 How that remedy was applied, in what cases, upon what 
 principles and to what extent, we shall easily learn as we 
 follow the history of torts and wrongs along the movement 
 of civilization. 
 
 But these phenomena of comport ion for a wrong imply 
 some marvellous and significant change in the primitive 
 idea of possession; something which though not legal owner- 
 ship is yet on the way to it, approaches it very nearly and 
 simulates it very closely; something hau:d to define though 
 easy to see, and which we may venture to call the natural 
 or savage ownership. It has hung about possession all the 
 time as a mist or haze but now becomes distinct. For com- 
 pensation bj a neighbor -clan implies that it has something 
 which it can give and give effectually, something in its 
 exclusive possession which it can transfer, something which 
 the injured party can have and keep as balancing the wrong 
 
125 
 
 suffered. What is this element hovering about possession 
 and intensifying it? And how does it enable us to define 
 that singular thing known as legal possession which has 
 baffled every effort at accurate definition? We need help 
 in that direction for jural analysis has exhausted itself 
 over the two words "possession" and "property" , and ended 
 in a conflict and metaphysical warfare which is likely yet 
 to try the students patience. Austin refuses to define 
 property declsuring that its definition lies throughout the 
 whole corpus juris » the entire body of the law, and imports 
 a definition of every right and duty which the corpus .juris 
 contains. That is discouraging, but not utterly so when 
 we come to comprehend his reasons j for he describes an 
 absolute right of property as a right over a thing import- 
 ing a right of using or of dealing with/ limited by nothing 
 but the duties incumbent on the owner. Putting aside that 
 limiting qualification we may safely ass-ume that he defines 
 property in a thing as the right and the power of indefinite 
 user. What he means by the qualification is that under the 
 general law the right of user, however broad and complete, 
 is yet more or less restrained by the similar or different 
 rights of others. As. for example, a man may not use his 
 own so as to injure the rights of another, or defend a 
 nuisance upon the absolute character of his ownership. And 
 he further confines his definition to things tangible. 
 
126 
 
 material, concrete, and almost if not quite to things mov- 
 able, because conscious of the fact that the word property 
 by an extension of meaning has come to be further applied 
 to the ownership of intangible rights which are themselves 
 both definite and limited. Throwing off these qualifica- 
 tions his definition is seen to be the right and the power 
 of indefinite user. His notion of possession is derived 
 from the analysis of Si^vigny which he fully approves, and 
 so distinguishes between the right to possess merely and the 
 right of possession, and his preliminajry dissection gives 
 us first, occupancy or physical detention;/ second, the 
 right to possess; and third, the right of possession; 
 which last, he says, only su:ises when it is adverse and 
 in defiance of sooie other legal right. He admits that 
 the distinctions are perplexing, but insists that they 
 axe necessary and accurate. Judge Markby gives us a dif- 
 ferent phraseology which has already been repeated in its 
 application to possession as a fact, and regarded from the 
 legal stand-point amounts to this; that it consists in the 
 power and intent of exclusive and beneficial use and dis- 
 position: and then ownership becomes the legal abstraction 
 which identifies it and clothes it with authority. This 
 is said to be a resultant fBom the analysis of Savigny 
 but which Austin did not live to reproduce. Judge Ho4iaes 
 criticizes the definition because it does not cover the 
 
127 
 
 possession of a depositary for safe keeping without reward 
 who does not hold for his own benefit and yet has a legal 
 possession which will support trespass or trover- 
 
 Sir Frederick Pollock discriminates between three 
 uses and three meanings of the word "possession" with a 
 view to clear it of ambiguity. In relation to movables he 
 says, first, that it means mere physical possession, 
 what Savigny calls detention, and the Roman law natural is 
 possessio . Thai- is described as rather a state of facts, a 
 congeries of events, a group of actualities than a legal 
 notion which is more or less an abstracion. Second, it is 
 used to signify possession in the legal sense, and, so usec^ 
 describes the legal relation of the possessQD to the thing 
 possessed in respect to third persons. In this sense it 
 may exist without physical detention and is a notion of 
 particular or municipal law. Third, it is used, especially 
 in the Yearbooks and in ancient treatises, as meaning a 
 right to possess, which may be ownership absolute or in some 
 special character. And he further holds, what calls continu. 
 ally for an explemation, that possession in law is itself 
 a substantive right or interest, which Exists and has legal 
 incidents and advantages apart from the true owner's title; 
 that it is a kind of title, in and of itself, good as 
 against everybody but the true owner, and, to that extent 
 at least, property. 
 
128 
 
 Blackstone derives ownership as a legal xssadti re- 
 sult from occupancy as a physical fact, and describes the 
 latter as a "naked p8ssession", that/ is, clothed with no 
 right save what is inherent in the physical fact itself; 
 but Iwhat that right is, sticking in the beurk of the fact, 
 he does not inquire, saying that Grotius and Puffendorf 
 found it on the implied consent of all mankind that the 
 first occupant should be owner, while Locke and others 
 derive it from a principle of natural justice based on 
 some degree of bodily labor: a dispute which, Blackstone 
 adds, "savors too much of nice and scholastic refinement." 
 
 But without being nice or scholastic, or venturing 
 into the forbidden fields where phklosophers guess against 
 eachother, we may perhaps solve the problem by studying the 
 underlying facts. Recalling Iniiat we have said of the early 
 tribesman and his dealings with the things and the circum- 
 stances about him, it seems sufficiently plain that in the 
 eurchaic society possession began as simple occupation of 
 land, or manual detention and then personal control of 
 movables. That detention and control at first was of things 
 uncontrolled by anyone else and so open to seizure without 
 question. In that condition they have been described as 
 res nullius — the property or possession of no one, — and 
 80 open to the taking and appropriation of the first comer. 
 That notion was later held to include the property of an 
 
129 
 
 enemy because of its abandonment in defeat and apparent 
 surrender, and has been pushed still further to include and 
 justify the right of discovery. It has been said that the 
 simple fact of taking and detention acquired some tinge 
 or characteristic of ownership because all property was 
 supposed to have some owner, and the taking supplied the 
 missing or absent ownership. We may doubt whether such was 
 the archaic thought. The idea suggested carae very much later. 
 That such a tinge and coloring spread over possession, 
 that it began to megm more than taking and using simply, 
 and that some sort of nascent or crude right was attached 
 to the continuing fact is undoubtedly true. The phenomena 
 which we have been describing as attending ancient life show 
 it. How that added element became attached under the 
 Roman law was the famous discovery of Von Savigny, reached 
 by a brilliant^ application of the historical method to the 
 anomalous fact: but thejsame added element in lesser degree 
 was present before the Roman law and in the phenomena of 
 archaic society. How did it get there? How did the bare 
 fact of taking and detention by reason of. its continuance 
 clothe itself with some mysterious quality which added to 
 its force and led to an eagbrinsic reppect beyond mere fear 
 of physical defense and resistance? Maine says this of 
 the question:- "It is not wonderful that property began in 
 adverse possession. It is not surprising that the first 
 proprietor should have been the strong man armed who kept 
 
150 
 
 his goods in peace. But why it was that lapse of time created 
 a sentiment of respect for his possession, — ^which is the 
 exact source of the universal reverence of mankind for that 
 iirtiich has for a long period de facto ^%isted, — are questions 
 deserving the profoundest examination, but lying far beyond 
 the boundary of our present inquiries." There he leaves us, — 
 with an unsolved problem on our hands. We may not be sure 
 that we can solve it. Certainly, we shall not attempt a 
 solution by any analytic or philosophical method. But pos- 
 sibly the facts we have gathered, and a historic sikudy of 
 such of them as attend the beginnings of Civilization may 
 throw sone light on the problem and tend to its solution. 
 At least it is worth an effort. 
 
 Let us recall then the warring and fighting families 
 and Tribes whose violence and disorder have been already 
 sketched. Obviously, the first requisite for their civili- 
 zation is Peace. That may come, as it sometimes does come, 
 from exhaustion, or from an eqaal or balanced strength of 
 adversaries, making an attack by either doubtful and danger- 
 ous,. Probably it finds its first development amd support 
 in the older men of the SxJss Tribe whose war blood has cooled, 
 and whose calmer wisdom peytceives that habits and customs 
 which make for Peace promote the happiness and prosperity 
 of the group. From these it spreads outward and downward, 
 slowly gathering strength as time and ei^erience prove its 
 value. Gradually it supplants the habit of violence in 
 
151 
 
 the younger and growing generation until one comes trained 
 up to the love of Peace rather than of Weir. But Peace 
 means undistuvbed Possession. It is violence that disturbs 
 it and makes it precarious. Peace leaves it where it finds 
 it, and it is secure and untroubled while that Peace re- 
 mains, and a continuing Peace both within the Tribe and 
 outside of it means a continuing and lasting Possession. 
 To the new generations whiah never saw it challenged or 
 broken it assumes the cheuracter, which it didinot have at 
 first, of absolute permanence because nothing threatens or 
 assails it. It takes Time for that, — not merely years but 
 decades, perhaps centuries, before Possession hardens into 
 something Ownership. 
 
 Such long possession gains strength from another 
 source which also needs time for its full fruitage. In 
 the days of prosperity and Peace within the Tribe and without 
 it there comes the need of exchanges of possession. We shall 
 hereafter consider them more at large. At present we may 
 asstime their necessity smd prevalence. But every such 
 ^Itchange is what? Clearly, a recognition by each party 
 to the transfer of a rightful and valid possession in the 
 other of whic^ he can be deprived only by his own free con- 
 sent. The barter stands on that peaceable consent > and 
 the right of each to give or to withhold it. Such a pro- 
 cess of mutual exchange, implying a valid and effectual 
 
152 
 
 possession in each, carried on from month to month and 
 year to year, and perhaps with a widening circle of groups, 
 will breed a habit, will estab]iish a custom the very basis 
 of which is a recognition of a continued Possession as the 
 evidence and result of a customeory right. 
 
 But we may push the thought further, and so add to 
 the scope and range of the emanation. Professor Lee, of 
 the John Hopkins University, in his useful gather of the 
 facts on which must rest the Science of Jurisprudence, cites 
 the decision of the Senate of Tyre in the case of a tax 
 against which the citizens of Putioli protested. The tri- 
 bunal decided thus:— "The men of Putioli have right. It 
 has always been so , and it shall still be so. This is for 
 the City's best. Let the andent ordinance be maintained". 
 Now what was the unspoken thought underlying this decision? 
 What makes the Hindu, as we shall very soon see, constantly 
 
 rest upon the rules of antiquity, and the sturdy Briton 
 
 plant 
 
 psxsii himself like a rock upon immemorial usage? The root 
 
 of the phenomenon is this. The earlier races were little 
 
 given to thought. Indeed great masses of the modern people 
 
 betray a similar fault. They can act but they hate to think. 
 
 The muscle outranks the brain. Somebody, their priest, 
 
 their boss, even a damp and reckless newspaper, must do their 
 
 thinking for them, or pretend to do it. To the early people 
 
 it is a relief from the distress of thinking and the pain 
 
133 
 
 and struggle of doubt to find that the Past has thought for 
 them and passed judgment on the dispute. They feel that 
 what their ancestors in a long line have determined and 
 settled is probably the wisest and safest conclusion, be- 
 cause it has stood the test of time and experience, resisted 
 all assaults, and so demonstrated its wisdom. Who are we, — 
 the earlier man may say, and at all events will certainly 
 think, — ^who are we to set up our feeble judgment against 
 the long array ^ of ancestral opinion, tested and confirmed 
 by the practice and ^^e rience of years! We need not think: 
 it has been thought out for usl — That is their easy way, 
 and at the same time a very natural way, to rid themselves 
 of a troublesome inquiry. Very likely their reverence for 
 old rules and doctrines was intensified among the earlier 
 races by their religious notions. The authors of the vener- 
 able rules were their ancestors, and they worshipped these 
 as the Gods of the Hearth j and it seemed something akin to 
 sacrilege to doubt or reverse their doctrines or rules, 
 handed down, delivered, fraaed by those Gods themselves, 
 unseen guardians who sat at the daily meal, who fed upon 
 the immaterial fragrance or essence of the food, and whose 
 line as it grew longer became more and more a reason for 
 respect and veneration. 
 
 That we are so far right is suggested by the fact 
 
154 
 
 that reverence for old opinions and customs prevails very 
 much more among uneducated and unreflecting races than 
 among the educated and intelligent part of our modern 
 people. The former accept blindly and obey steadily the 
 old dobtrines, while the latter ask for reasons and prefer 
 to judge for themselves. None are more noted for that 
 sort of independence than the restless Americans of our day, 
 having few roots in the Past, much fonder of things new 
 than old. We are painted as the iconoclasts of Thought, 
 overthrowing ancient opinions and ways as the Puritans 
 clubbed down the statued saints in the cathedral. , and 
 perilling our progress upon the outcome of ^Speriments. 
 And yet we have observed that when we taJce in his prime one 
 of our lawyers from the Bar, where, in defense of his 
 clients, he has stormed at some old prededent , or wrenched 
 it to a more convenient meaning, and place him on the Bench 
 of an ultimate court, he very soon begins to acquire a 
 respect for antiquity, bends to the ruling of Coke or Holt, 
 of Camden and Mansfield as his judicial ancestors, with 
 all the reverence of the earlier man worshipping his trans- 
 lated fathers hovering in the sky. We may reasonably think 
 that the last stronghold of reverence for the Past lies in 
 the Judiciary. 
 
 Taking into view, therefore, the facts which have 
 been stated and the deductions which they justify it seems 
 
135 
 
 possible to understand how and why a long and unbroken 
 continuity of possession clothes that possession with a 
 strength and value of its own outside of and beyond the 
 defensive force behind it. If, after all, in these hist- 
 oric explanations we have not solved Maine's problem, if 
 deep down in human nature there is an instinct or notion 
 that what has been will be, a normal reverence for what 
 has lived through the years and time and change have 
 gnawed at in vain, its measure must be taken by philosophy 
 and by an investigation beyond our own. At least we may 
 prefer the explanation which archaic history appears to 
 give: and as a result may say that continuance of a faot 
 breeds an inchoate natural right, that long continuance 
 makes that a settled customary right and its enforcement 
 by the law turns it into a legal right. 
 
 These facts test also to some extent the definitions 
 of possession to which we have referred and ^ich we saw 
 reui upon some differences of theory. What was in fact the 
 customary possession of the archaic groups answers to and 
 justifies the definition of Markby. The Family and the 
 Household took its chattels both with an intent to exclude 
 others, and with that self -regarding intent which respected 
 their own benefit convenience and safety. History shows 
 us that at first that was the correct definition, and that 
 it became too narrow and limited only when the process of 
 
 development extended the idea of possession, by a rude 
 
136 
 
 sor6 of analogy, to the ca^e of a gratuitous depositary 
 to enable him in the interest of his bailor to protect 
 the property against seizure or injury; and when it still 
 further spread beyond tangible and movable things to land 
 though immovable, and then beyond that to mere incorporeal 
 rights and those which we call estates. 
 
 The savage, or, as we have termed the crude and 
 unregulated right, the natural possession not only explains 
 the legal idea in its origin and growth and enables us to 
 see how much of accretion and unfolding has come to the 
 thought from its use and recognition, but that very possession 
 of the primitive time has survived in our law and is ex- 
 plainable to-day only by reference to its origin. We con- 
 cede a right in land which is the savage possession merely, 
 which is supported by no title, behind which may be no deed 
 or grant, which rests only on defiance auid su a cheQlenge 
 to all the world. We call it Adverse Possession, v,« pro- 
 tect it against everything except a better right, we pre- 
 sume the possessor to be owner, and, after time has hard- 
 ened and hallowed it, we even regard it as giving a title 
 which will prevail over ^ that of the true owner who has 
 slept on his rights and failed to accept the challenge 
 thrown in his face. What is this but the savage posses- 
 sion with its defiance and its challenge to all comers, and 
 shall we any longer, in view of the historic disclosure. 
 
157 
 
 be satisfied with the lifeless and stupid platitude that 
 it is product of the Law's desire to quiet titles and end 
 litigatiofi' No, indeed! It was born before the Law, it 
 reigned and ruled with no thanks to the Law, it is a habit 
 of the caves and the club, transplanted bodily into the 
 legal soil, and only attenuated and degraded when its 
 sturdy history is forgotten. 
 
 But this natural possession, — in the family mainly 
 confined to its Head, — in the pasture and the planted field 
 common to the Tribe, — ^had to operate by the side of two 
 other primitive ideas which were the social status or rank 
 of the individual and his personal independence on the one 
 hand, or his subordination to some over-lord or group of 
 oligeirchs on the other- To the working of those influences 
 we should next turn our attention. 
 
158 
 
 Y. 
 
 STATUS AND SOVEREIGNTY. 
 
 We can hardly fail to observe in the constitution 
 of the tribes, and especially in the leorger organism 
 framed out of their voluntary or forced union, the begin- 
 ning among their members of distinct classes, and a vsuriance 
 in the status of individuals. We see already at one ex- 
 treme the Chief and his chosen companions constituting a 
 sort of nobility; at the other the body of slaves at the 
 mercy of their masters and very much degraded; and in be- 
 tween the free tribesmen, sometimes maintaining their in- 
 dependence, sometimes losing it from economic causes. 
 These differences of statue^ and rank develop swiftly, and 
 with very important results as the tie of kinship weakens in 
 the Tribes, and their cohesion becomes dependent upon less 
 concentrating influences. That condition gradually super- 
 vened, for always in the tribal group there were elements 
 of disintegration and severance. Probably the first strand 
 to bi<feak was the community of land ownership. We have seen 
 the isix home-lot, the alod, becoming several and its en- 
 closure growing in area; the arable fields parted into 
 separate possessions; and 'the pastiore yielding more and more 
 to the individual dominion. The strand of kinship held isxgx 
 longer for it was very strong. As Maine says of it "the 
 
139 
 
 fundamental assumption is that all men not united with you 
 in blood axe your enemies or your slaves." But that bond 
 in process of time loses much of its force. The Patriarch, 
 the Chief, who is its living type and ^^ple , dies. Some 
 one must take his place, and at the outset it will be a 
 man of his blood; possibly his son; frequently his brother. 
 The succession may provoke discord, perhaps WEir, but will 
 be settled by the prevailing choice and the new Chief will 
 rule. After many years he may prove to be sks some leader 
 in war, some man of notable force and bravery, and only by 
 a bold fiction regarded as of the blood of the Patriarch. 
 Then too the process of Adoption will have introduced into 
 the organism many an alien gmd stranger, and lessened its 
 cohesion as a brotherhood. But on the other hand will be 
 arrayed, besides the compacting grip of the Chief, the 
 influence of Habit which has gained strength itth the years 
 and from which men do not easily break away, and a growing 
 consciousness of the need of taat ffiombined action which 
 alone can ensure safety and add strength and glory. In the 
 end will appegu: the King. Not always, however. Sometimes 
 the ruling element will be an Aristocracy, or in rare cases 
 some popular authority represented by Archon or Decemvir or 
 Consul, bursting out of the aitizen mass and assigning to 
 represent that mass: but whatever the form, always the\idea 
 and the fact of Sovereignty. For Humanity will have leader- 
 
140 
 
 ship; good or bad as it may happen, but always and forever 
 Leadership. If men move in single file one is the first 
 of the line ; if they march in a platoon one is at the 
 front and leads the way; if they rush as a mob one, ruth- 
 less and ugly, carries the tovch of riot in advance. And 
 so appegurs everywhere and in some form the leadership which 
 develops into the Sovereign. 
 
 Disregarding his many titles and variant authority, 
 we may call that inevitable master, the King, and study his 
 ways as they bear upon the trend and form of the law; turn- 
 ing aside now and then to notice such variations as coaae 
 from the rule of an Oligarchy, or that of the people |hrough 
 officers chosen by themselves. 
 
 The fundamental basis of the kingly authority is his 
 Fatherhood. It descends upon him by a sort of official in- 
 heritance. The people are his children. He is the Patriardi 
 broadened, enleirged and spread over numerous Families and 
 Tribes which have coalesced into the Igarger organism of a 
 Nation. He is an ancestral ruler tracing his lineage back 
 to some supposed origin of aH, With the blood of the dim 
 and distant Patriarch, always eijiero and often a God, he 
 takes his authority, and like him is Governor, Judge, and 
 Priest, mingling the consequent powers and duties in a 
 tangle almost inextricable. 
 
 His principal business was war; but every battle ia 
 ■auxa 
 
141 
 
 was a series of personal combats fought out hand to hand 
 after the first spear was hurled. There were no balls and 
 bullets crashing thousands of feet away and enabling com- 
 mand to operate from a safe distance. The conflict was a 
 rush of individual encounters; and no man could bzl long 
 rule his people unless he led them, on foot or in his war- 
 chariot, into the very core of the struggle. Therefore he 
 must needs be brave, always the war captain, and winning 
 victory by victorious example. Such a life, and the passion 
 and blood of it, almost invariably made him both cruel and 
 despotic; traits which reacted upon the subject masses, and 
 tended to breed in them either a habit of servile submission, 
 or of riotous sedition and revolt. 
 
 But the gulf between count. and populace widened in 
 many ways. The King who ruled by force forevear found that 
 there was other force m mgurring and threatening his own. 
 If there was Agamemnon calling himself King of men he had 
 yet to take account of Achilles. The coalesced body, whether 
 temporary for a campaign or permanent as a state, was made 
 up of Clans and Tribes each of which had its Chief as lead- 
 er and ruler. These had to be considered and placated, and 
 thence grew the Boule or council of chiefs, forming below 
 the King a class of a baronial character, yet superior to 
 the general mass. These Chiefs were seldom the King's 
 intimates, more often his rivals or enemies, but were in- 
 
142 
 
 creased or balanced by the advancement to wealth and power 
 of his chosen companions and retainers. They lived upon 
 and served him, their relations with him at first being more 
 or less of a servile character, but so sharing his favor, 
 joining in his revels and partaking of hie prosperity as to 
 rise above the masses around them, and begin to shine by 
 reflected light. Undoubtedly he gave them land, aad more 
 or less of the wealth of the Time, and bestowed upon them 
 portions of the plunder obtained in war and which they helped 
 him to secure. To some #j^ent they may have been his kins- 
 men, near or distant, but often were wanderers from other 
 Tribes, exchanging their swords and their service for the 
 royal favor. Such is understood to be the origin of the 
 nobility which yet survives in England and on the Continent, 
 though in a very dilapidated condition. The existence 
 of this council of Chiefs was often accompanied by a gather 
 of the whole mass of the people for purposes connected with 
 the govermnental authority. How it arose is obvious. The 
 King desired to msJce war upon some outlying tribe. His 
 success would depend largely upon the number and temper of 
 his followers. He naturally hesitated to lead reluctant 
 or unwilling troops, and without the enthusiasm necessary 
 to success. And so he called together his people, first 
 to promulgate his will, and next to secure their assent 
 and approval. These as semb lie ^became what was known in 
 
145 
 
 Greece as the Agora, in Rome as the Comitia, and in Germany 
 as the concourse of the tribesmen which voted approval by 
 the clashing of their eirms. These bodies were always pas- 
 sive rather than active; with no power f of legislation 
 beyond the sullen effect of silence or refused, to assent, 
 smd yet for that reason were to be influenced and placated. 
 The King therefore must know how to talk, how to stir the 
 passions of the crowd, how to win their cheerful and con- 
 tented assent. In the heroic ages he needed not to be 
 eloquent or an orator for he stood before the crowd as 
 their divinely appointed ruler, as the chosen of the Gods, 
 and full of supernatural wisdom; but with this advantage 
 he must still be able to explain, to excite and arouse the 
 passions, and so procure a willing smd effective obedience. 
 Grouping together the essential characteristics of the 
 kingly office as we have described them it ceases to be 
 a subject of wonder that there grew up that blind loyalty to 
 a dynasty, that persistent devotion to a royal race which 
 Grote describes as belonging to the legendary Greeks, and 
 which has had examples in later times. 
 
 But the lift of royalty and nobility tended to push 
 down the level of the commons and to disentangle property 
 from community of possession. The Nobles hunted over the 
 farmer's fields and robbed him of his horses and cattle, 
 and steadily encroached upon the waste or common lands, until 
 the peasant cultivator found his only measure of safety in 
 
144 
 
 the process of bestowing his lands on the nearest Lord and 
 then talking them back as tenant and vassal, giving services 
 and homage in exchange for the protection which he thus 
 secured. This method became known as Commendation, and its 
 tendency was two-fold. The king and his nobility and the 
 Church under his wing, became almost the only landowners, 
 and the people grew more and more into the type of vassal 
 and serf, until the Feudal system becacae the prevailing 
 rule and opened up a new and marvellous development of the 
 law of the soil. 
 
 Not only thus but ky a different method thep king 
 SDgietimes turned the freeman into a vassal. Maine has 
 described for us from a study of the Breton law tracts 
 what was meant in the early Irish history by taking stock 
 of the king. We may follow and rely up©n his account of 
 it though somewhat abridging the description. 
 
 The gurchaic Chief or King was not only brave and s 
 strong and of ancient descent, real or assumed, but he was 
 also rich, At first, the cheapest thing in the world was 
 land, for it was abundant and plentiful and needed only to 
 be occupied. But in and of itself it had little value. 
 Beyond so much as was needed for the house of the freeman 
 or the castle of the king its value was wholly dependent 
 upon the possession of cattle which was almost the sole 
 wealth of the early ages. To the man who possessed cattlS, 
 
145 
 
 pasturage was necessary, and cultivation of axable fields 
 was possible; and one was rich who owned cattle and needed 
 land only as a consequence. The Latin pecunia or money 
 came from pecus a flock, and the two words indicative of 
 personal wealth and most in use to-day in that connection, 
 viz'/ "capital" and "chattel" are derived from the word 
 caput , a head, so that numerous head of cattle constituted 
 the ancient capital italch we measure in money, but neverthe- 
 less, in the case of corporations continue to call "capital 
 stock". Now the king was the rich man of his race. What- 
 ever sources of wealth existed were necesseirily within the 
 reach of his power, and naturally and easily flowed to 
 him as presents given to win his favor, in booty won in 
 battle, in tribute exacted from conquered tribes, and in 
 forcible seizure under one pretence and another. The fact 
 was true even of the old Patriarchs. We nead that Abram 
 was "very rich in cattle and in silver and gold", and that 
 Jacob "increased exceedingly", having "much cattle and 
 man-servants and maid-servants and camels and asses." In 
 later days we/ have become familiax with the Persian wealth 
 of Croesus, and the gold and silver talents Miiiiich Perikles 
 hoarded in the rock fortress of the Acropolis. And so the 
 Keltic king was the rich man in cattle which constituted 
 the principal wealth of his Time. His own demsne about his 
 
146 
 
 castle soon became insufficient for his pasturage, and he 
 spread them over the waste which as head of the community- 
 he controlled. But that was not always existent and suf- 
 ficient for his needs so that this emergency arose. He 
 had more cattle than pasture, and these were freemen who 
 had land but no cattle or few compared with their area of 
 pasture , That led to a loaning of cattle to the allodial 
 farmer in exchange for the increase, at the end of an 
 agreed period the cattle to belong to the peasant, but he in 
 the meantime reiguired to give a certain and peculiar com- 
 pensation. That was called taking stock of the King, and 
 
 Saer 
 in the Breton laws are described the gait stock tenant and 
 
 the Daer stock tenant. The first, having cattle of his own, 
 took only a limited quantity from the king, and retained his 
 status as a free tribesman and grew in wealth and station, 
 but, beyond returning the increase and milk, became bound 
 to render homage and service to the chief. The latter con- 
 sisted in aiding to reap his harvest and build his castle, 
 or in lieu of that to follow the chief to his wars, and 
 that in general was the choice that was made. But the Daer 
 stock tenant parted with some of his freedom and became 
 distinctively a vassal. The Breton law regulated the mat- 
 ter in detail. If the chief deposited with the Daer stock 
 tenant three heifers he was entitled to what is described 
 as the calf, the refections, and the labor. The heaviest 
 
147 
 
 burden was the refections. The Chief could0 come and 
 dwell with the tenant and receive food smd lodging for 
 specific periods, beyond the increase and the services 
 stipulated. We may be sure that he abused that privilege, 
 and with his boisterous and hungry retinue devoured the sub- 
 stance of his vassal and trampled him into degradation. 
 Such was one way in which the feudal tenures originated, 
 and steadily tended to vest the ownership of land in a 
 few and make vassals and serfs of the freemen. 
 
 But the king whom we are studying was also compelled 
 to assume the Judicial office and it is in that character 
 that he most strongly interests us. He could not avoid it, 
 but found it useful and convenient as an instrument of 
 rule. The necessities of his Time and Station brought the 
 duty to his throne and compelled its performance. Two war- 
 chiefs quarrel. Nobody less than the king may intervene 
 to save waste of blood and restore harmonious action. No 
 one else dares; and even the Sovereign, at first, may not 
 go beyond an arbitration not always effectual. A noble 
 oppresses a soldier. The latter looks up to the king and 
 appeals to him as the only power strong enough and brave 
 enough to confront the oppressor. Two citizens quarrel 
 and gathering their partisans fill the street with clubs 
 and blows. There is no solution unless the king shall in- 
 terfere to keep the Peace, and then will be appealed to 
 
148 
 
 from both sides of the controversy to adjudge what he 
 refuses to let the parties decide by the arbitrament of 
 force. Beyond that, he is understood to be the only per- 
 son who can decide aright because he is the Priest of the 
 race and divinely inspired. He was the head of the national 
 worship, making the sacrifices, consulting the oracles, 
 and by reason of his divine paternity on intimate terms 
 with the holy society of Olympus. How singulsirly strong was 
 the toold of this superstition upon the ignorant masses it 
 is difficult for us withhour clearer vision to realize, 
 and we can only appreciate its force by the measure of 
 examples. When Lycurgus, though not the first yet the 
 most remarkable law-giver of Sparta, who put society upon 
 a foundation of communism, stern in its equality and 
 vigorous in its discipline, came to the young king and 
 boldly i assumed a part of his duty, he did it so backed 
 and buttressed by the command of the oracle at Delphi as 
 to gain at once the royal assent and the blind submission 
 of the people. At a later date and during the reign of 
 Peisistratus, who by a rebellious tumult had been driven 
 from tes his throne and sent away into exile, we see him 
 at last returning, having arrayed a tall and stately and 
 grandly beautiful woman in the splendid attire of the 
 Goddess Athene, and standing by her side in his war -chariot, 
 under shelter of her divine authority and protection, 
 
149 
 
 driving back to his lost royalty, and assuming it in the 
 midst of a submission of the people firm in their belief 
 of a direct intervention and a personal appearance of the 
 city's tutelary Deity. The Homeric poems are full of this 
 communion with the Gods who are supposed to inspire and 
 help their favorite kings. And so the judgment of the 
 King was assumed to be the wisdom and wish of the Gods 
 uttered through his lips as the channel of communication. 
 He was regarded as full of that supplied wisdom, loaded 
 with Divine truth, saturated with the infallible justice 
 of the Olympian air. The contestants before him expected no 
 reflection, no study, no delay. He had only to open his 
 mouth as one opens a valve and the waters from the Heaven- 
 ly fountain would flow at once, always ready, always pure. 
 Absurd? — Of course, and yet out of it sprang the early juris- 
 diction of Equity, founded upon the notion that over and 
 above the laws and beyond their scope there remained in 
 the King and the conscience of his Chancellor, in the 
 Emperor and the conscience of his Praetor, an undrawn re- 
 servoir of truth and justice, a surplus of Divine wisdom, 
 which could be utilized even to mitigate and temper the 
 severity of the laws themselves. Assuredly, a ruler so 
 armed with power and Divine wisdom could not escape an 
 assumption of the judicial function. Let us remember that 
 what comes to him for decision is comparatively simple. 
 
150 
 
 The questions are never of contract, of commerce, of title,- 
 subjects yet to try intelligence with their marvellous 
 changes and complications, — for nothing of that sort had 
 been evolved. On the contrary the questions were almost 
 wholly those relating to personal wrongs, or the theft 
 or xalosx robbery of property, matters quite easy to grasp 
 and understand. 
 
 How then did the Sovereign judge? Not on any B±±ja 
 ethical grounds as we understand them, for there was no 
 ethics, or at least none of any value. Good and bad were 
 simply what was useful, or comfortable, or pleasant, on the 
 one hatnd, and what was hiirtful, painful, or disagreeable 
 on the other, to the individual whose opinion was sought 
 or whose intervention was asked. The Zing, therefore, de- 
 cided each controversy brought to his throne having a 
 large respect for the relative station and power of the 
 combatants. Peasant against Baron gave slender chance for 
 the Peasant. Again, the King deadded not on the basis of 
 any fixed rule or doctrine for there was none. The word 
 vot^bi , meaning laws, does not once occur in Homer. There 
 were none ; the King made none . What he did was in every 
 case simply to decide that case as he thought best. These 
 decisions were called by the Greeks Themistes, a name de- 
 rived from Themis, the companion of Zeus and goddess of 
 order and justice. These were merely so many separate and 
 
lai 
 
 segregated decisions, founded it may be on occasion upon 
 the known custom or morality of the race, or upon the inter- 
 est or prejudice of the Judge. They had no legal or logical 
 connexion^, and were preserved only in memory. But more 
 and more, where no disturbing element intervened, they be- 
 gan to operate as precedents. Repeated decisions on the 
 same lines, of the same general purport, furnished example 
 and reason for others and the ground work of slowly evolv- 
 ing rules. And this drift must have gained some force and 
 momentum when the' King began to have assessors, and was led 
 to intervene in the rude moot couri^ which naturally grew 
 out of the village council or assembly of the freemen. The 
 principal business of the King was of course war. The 
 burden of deciding trivial disputes must rest elsewhere, 
 and he began to appoint an assessor or chancellor to rid 
 hin of the personal duty. As he was supposed to borrow 
 his justice from the wisdom of the Gods, his assessor took 
 it from him as if vicariously, but later from learned books 
 in which law and theology were in^^ricably blended. The 
 King's court followed his person and went with hiin whenever 
 he travelled through his dominions. Its usual work was 
 to enforce the levy of his taxes, to keep the peace and 
 punish rebellion. It had little or nothing to do with the 
 private rights and duties of his people until a great change 
 came over him and them. 
 
 But the King did not have a monopoly either of 
 Government or Justice. It happened occasionally that his 
 
1:52 
 
 own tyranny became unendurable, and revolt and revolution, 
 perhaps successful through the wword of a rebel or the 
 thrust of an assassin, opened the door to different institu- 
 tions and put in his place an Aristocracy governing with a 
 less personal despotism. Such an Oligajchy many times suc- 
 ceeded the Greek tyrants and brought changes in the judicial 
 functions. The new rulers could not rest their decisions 
 upon a Divine inspiration with the same ease and certainty 
 of belief as attended the judgment of the king, and they 
 supplied its place by a different artifice. They posed 
 as the sole possessors and guardians of the law, handed 
 down to them from ancestral days, committed wholly to their 
 care, and to be kept rigidly secret from the general knowledge 
 e^ept as they themselves should reveal it in the process 
 of adjudication. We shall ere long see the Roman pontiffs 
 holding that attitude to the people asking in vain for a 
 revelation of their law. The claim of these officials was 
 largely a pretence. There was no real law in their custody. 
 There were customs of a partly legal character, possibly 
 the knowledge of a few imperfect precedents, and the control 
 and construction of some rigid and complicated ceremonies, 
 but wherever such an Aristocracy assumed the judicial duty 
 its decrees, like those of the King, were merely separate 
 and arbitrary decision froming no rule and developing no law . 
 But even under the sway of the king there were populair 
 
153 
 
 courts, for a time independent of him and borrowing nothing 
 from his power and authority. When society gravitated toward 
 personal freedom, as it did in the Germanic Tribes and occasion-^ 
 edly in Greece, such rude tribunateji were sure to arise. They 
 began as gatherings of the whole people of the hamlet or village. 
 It was the Town-meeting which reproduced itself on our own shores 
 among the liberty loving Puritans. The home affairs were con- 
 
 and discussed, and questions of conduct and administra- 
 tion determined by the vote of the majority. It was inevitable 
 that in such meetings the quarrels and the differences of the 
 cottagers shouM be brought to the knowledge of the meeting, 
 for they affected the order and peace of the community, and a 
 violation of its customary rules was the ground of every contest 
 and the basis of every complaint. All the citizens therefore 
 were interested in the conflict however personal its origin. 
 The questions raised were of boundaries, of the common pasturage, 
 of trespass by cattle, and the like. Not questions forKing: 
 too important for so lofty and distant'^^^arbiter , and best set- 
 tled at home and on the spot. For these neighbors knew all the 
 facts, and were not the superiors but the equals of the liti- 
 gants: it became a trial by the peers. Insensibly, in this way 
 the moot courts of thevillage grew up, and the presiding officer 
 the Thungrftus or Thingman chosen by the people more and more 
 took on thej( attributes and duty of a Judge, But these moots 
 were in substance mersly courts of aurbitration. Stoit Their 
 decision could only be enforced by the general disapprobation. 
 
154 
 
 That operated like a Sanction, but of a very low grade and 
 falling painfully short of it. Ere long more of force was 
 given to it by adopting the rule that he who disobeyed the 
 decree and decision of the Moot shouli have no remedy at its 
 hands and no shelter under its jurisdiction. Such a man was 
 said to have gone out of the law; that is, to have forfeited 
 all right to its protection and surrendered its case/ and help./ 
 He became an outlaw. They called him "Wolf-head." Anyone 
 could kill him or rob him with impunity. But often that suited 
 his ugly temper and robber taste and made of him a menace 
 to the order of the community, and bred tumult and war. His 
 type in later yeairs is found in Robin Hood and his outlaws 
 of the forest. A decision which could not be enforced, which 
 lacked the vitality of a specific and inevitable sanction, 
 fell below the level of a law, ajid remained only the opinion 
 of an arbitrator which bound nobody reluctant or unwil.ling. 
 That was one defect. There was another growing out 
 of the constitution of the courts, best illustrated by those 
 in England under the Saxon rule. There were two of these, 
 each meeting in the open air, and usually upon soBpe hilltop, 
 beiBfire which the German quarrels were heard when the psLCties 
 did not fight it out in their own rough way. One of these 
 was the court of the Hundred, the other of the County or Shire . 
 We know but little about either, and can scarcely be sure of 
 what area or body of men constituted the Hundred. We are 
 
155 
 
 told that when the Germans conqaered new territories they 
 
 assigned a portion of land to each hundred warriors who with 
 
 their wives and children occnipied and cultivated it as 
 
 a group. The name would indicate some occurrence of that 
 
 nature, but we are still in the dark as to the area of land 
 
 allotted to each. We know that the Saxons brought the 
 
 Hundred with them into Britain but its area there varied in 
 
 different localities. In Wales we are told it included 
 
 51200 English acres. Domesday tells us of a Hundred called 
 
 Oswaidslaw "in which lie 300 hides." The wonderfully patient 
 
 and thorough investigation of Maitland makes the hide consist 
 
 Professor 
 of 120 aares. fxsix Lee's statement that it contained 
 
 600 acres is a misreading and misunderstanding of his author- 
 ity. We can put our finger on the very spot where his mis- 
 take occurred. No such estimate was ever made. The dis- 
 pute has mainly been whether there was not a smaller hide of 
 30 or 40 acres. The Hundred of Oswaldslaw seemingly contained 
 36000 acres or about 56 square miles, but it turns out that 
 this was at triple Hundred formed of three older ones. That 
 would give us 100 hides to the Hundred. Mr. Round tells us 
 of the Hundred of Arraingford which had 100 hides when Edward 
 was king. It seems safe to accept that estimate, and we do 
 so the more readily because it matches the hundred warriors 
 and gives each his 120 acres. If that seems a large allow- 
 ance we must remember two things: one that land was plentiful 
 and cheap, and the other that to be sure of his beer the 
 
156 
 
 tribesman must have large fields of barley. Beer was as 
 necessary as bread, and the taste for it has not left his 
 race . And so we are lable after some fashion to see what 
 the average jurisdictional area of the Hundred court was. 
 It seems to have covered nearly twenty square miles, but 
 became later very irregular in area. We are told of one 
 as small as two square miles and one in Lancashire of three 
 hundred. A process of adding hundred to hundred in one 
 county and narrowing its area in another must have gradually 
 developed. But as it stood at the date of the Domesday re- 
 cord we may regsird it as made up of a hundred hides each 
 measuring one hundred and twenty acres. These lands were 
 charged with the service of rendering suit to the court. 
 The tenants were bound to appear at its sitting and act as 
 doomsraen. When we reflect how little there was of roads, 
 and how tsd(ious the delay of the sessions, how far and long 
 the necessary Journey mostly on foot, and how serious the 
 repeated breaks in the farm work we can readily appreciate 
 that to "render suit* became a heavy burden on the tenantry, 
 that they neglected and avoided the duty whenever they dared, 
 that the process of "subtracting the suit "on one pretence or 
 another went steadily on; and so, surely and inevitably, the 
 court dwindled down to the Thunginus and a few doomsmen who 
 were known as buzones . growing by constant practice into 
 some sort of experts, and who were consulted by t^ royal 
 judges when they came to hold a circuit. Sogiething similar 
 
157 
 
 was true of the County court dominated by the shire -reeve 
 who has become our sheriff. The suitors habitually shunned 
 attendance and sent only the headman of a tithing or their 
 reeve and four men, adding sometimes the priest to do the 
 talking. Now the principal business of both these courts 
 was the imposition of fines, and so we get back to the king, 
 begging his majesty's pardon for having strayed away from 
 the glitter of his crown. The fines imposed, — and they were 
 imposed very liberally, — were to some extent payable to the 
 king, but probably only reached him in rills where he wanted 
 rivers. At all events he began to reach out for the en- 
 couraging source of supply. Even two thirds of the wer in 
 case of a stranger went into the royal treasury, and the 
 wite always, unless impounded by some lesser authority. 
 liBogradoff explains that in Kent the wer geld of a 
 ceorl was one hundred gold solidis and thSt of an earl three 
 hundred, but there was added a fine "for the infraction of 
 peace, ( fredus ) rendered to the king" and which amounted 
 to one half of the payment to the kindred and added to the 
 payment made for the ceorl brought the whole wergeld up to 
 one hundred and fifty soliais of which the king got one 
 third. Crabb, barrister at law, writing in the early days 
 of the last century, tells us of a law of Edwaord by which 
 for a breach of the peace the King had one hundred shillings, 
 the Earl fifty and the Ddacon ten. How the latter got his 
 
158 
 
 hand into the judicial purse we do not know. Even in the 
 time of Henry III when the judges sentenced to imprisonment 
 they added "unless he makes fine with the King.' The culprit 
 could buy his way out of prison by a liberal bribe to the 
 treasury. And so Justice began to look like a developing 
 gold mine for him who should control it. The King began 
 to see how rich a vein might here be worked. And soon he 
 appointed his own officer to govern the County and manage 
 its court, and the sheriff became a royal official. Very soon 
 the graver crimes were brought within the King's jurisdiction. 
 Breach of his specied peace called his grith or mund^ break- 
 ing into a man's house, for steal , which seems to have been 
 robbery or assault from an ambush, the harboring of outlaws, 
 and omission to perform military duty, were absorbed in the 
 King's justice. But he began to see something beyond thfit. 
 To get his fines he must begin to enforce his law. Mere 
 public disapprobation or outlawry will put no money in his 
 purse. He must malte the royal sword the increasing sanction 
 of the law or miss his fines. And so he began by enforcing 
 the judgment of the doomsmen/ where the parties litigating 
 |iad agreed to abide the decision, and the King's intervention 
 rested, not upon the inherent authority either of the 
 Sovereign or thecourt, but upon the express consent of the 
 suitors. Obviously, the beneficial effects resulting would 
 be so marked and clear as to induce a requirement of that 
 
159 
 
 consent, or a conclusive inference from appearance in the 
 court that it had been given. At slII events, it was not 
 long before the Sovereign began to enforce the judicial 
 decrees, and became a part of the judicial system; and the 
 great value of his intervention resided in the. fact that 
 he added to the archaic courts exactly what they needed, 
 supplied their worst deficiency, changed them from m.ere 
 helpless arbitrators, uttering bare opinions, to tribunals 
 having a sanction behind them, and needing but a few steps 
 more to become genuine and complete courts of Justice. 
 This action inevitably gave to the King a powerful hold upon 
 the administration of Justice, even where it did not reside 
 in him alone, but was maintained as the prerogative of the 
 community or the freemen assembled in council: for, since 
 the decree of the moot ddrived its force and vitality from 
 the sanction of the Sovereign and the exercise of his 
 power and authority, he could, by withholding it at his 
 pleasure, render ineffective gmd nugatory any decision of 
 which he did not approve. Two consequences were sure to 
 follow; one, that the administration of justice should re- 
 turn to the hands of the Sovereign, or those whom he selected 
 to act for him, and as his representatives in the performance 
 of judicial duty; and the other that such transfer should 
 carry with it and impressed upon it the peculiar character- 
 istics which the trial by the freemen had bestowed. The 
 
 first consecuence flowed^joaturally frcm the cumbrous size 
 
160 
 
 and uncertain action of the popular assemblies, and the 
 second from a privilege grown into a habit, mtiich no citizen 
 would easily surrender, of being judged by his equals, as 
 we describe it to this day, of being tried by his peers. 
 That right, when judgment reverted back to the royal hands, 
 steadily held its place and fought a successful battle for 
 permanent recognition. 
 
 This constant tendency of men to group themselves 
 about a leader who stands for them as the type and repre- 
 sentation s^ of such order as is possible to the Time, who 
 can decide all qaaxrels and placate the angry Deities, seems 
 to have had now and then remarkable exceptions, but which 
 after all are more so in appearance than in reality. They 
 come usually at later stages of kingly predominance and when 
 the government has become altogether and unendurably tyran- 
 nous. The tribe or the race developes into a Democracy, 
 and the people take all power, executive and judicial, into 
 their own hauids, and wield it directly without even the 
 safeguard or the^elp of representation. The example of 
 Athens will suggest itself at once as an illustration both 
 of the effort and its failure. The people of that prosper- 
 ous but restless city, as we all know, seized upon and con- 
 centrated into their aggregate action the whole governmental 
 authority, and, gathering as a dikastery, wielded a judicial 
 
161 
 
 p®wer without limit or boundeiry. The nev/ trial court was 
 constituted in this way. Six thousand citizens were selected 
 out of the whole number by lot. Five thousand of these were 
 arranged in ten groups or panels of five hundred each,^ 
 the surplus thousand being reserved to fill vacancies aris- 
 ing from death or absence. Each group of five hundred was 
 described as a decuria. The whole body of six thousand took 
 a prescribed oath couched in striking terms, very much as 
 at this day in civil cases the whole panel of petit jurors 
 are sworn at the commencement of xtsxKX a term, or the 
 whole grand jury before they begin their investigations. 
 Each of these decuries sitting in judgment was called the 
 Heliaea from the public hall in which they assembled, and 
 the members denominated Heliasts. When causes, civil or 
 criminal, were ready to be tried the Archons determined by 
 lot which of the decuries should sit, and the court in 
 which it shouH of f iciate , and tickets were issued to the 
 members bearing the letter of their decuria. They received 
 as pay for each day's duty three oboli or half a drachma, 
 a sum corresponding to about nine cents of our money, al- 
 though its purchasing power was so much greater as to bring 
 it nearer to the modern compensation. The Sikasteries under 
 Pericles varied in number, but always exceeding Ibk two 
 hundred, and in important cases occasionally rising to a 
 mob of two thousand. Most of the courts were held in the 
 
162 
 
 Agora and were distinguished by numbers and colors, and 
 staves with correspcSnding marks were handed to the members 
 as symbols of their judicial power. Several results fol- 
 lowed from the organization of these paid tribunals. A 
 large proportion of the dikasts were old men past the mili- 
 tary agfti^ to whom a few oboli daily were an assistance, and 
 who found pleasure and occupation and some dignity in sit- 
 ting as Heliasts. Another large element consisted of the 
 powei ? citizens to whom the pay was a means of support, and 
 who, we may guess, corresponded somewhat to the professional 
 jurymen who more or less hang about out own courts. Socrates 
 complains of these that instead of entering the maritime 
 service of the state or engaging in some trade, they preferred 
 to sit as aikasts and be sugared with the adulation of, 
 sophists and orators, who treated the humble dikast as a 
 demi-god and smothered him with flattery in order to win 
 his verdict. Some trace of the interesting process may be 
 observed before modern juries. The rich and the busy citi- 
 zens paid their fines and stayed^ to avoid the oppressive 
 and time -destroying duty. We see even yet the same class 
 of citizens presenting their excuses to the Judge at the 
 opening of one of our courlfe. The process of a]trial was 
 set in motion in this manner. The plaintiff called upon 
 a magistrate whose I'urisdiction covered the subject-matter 
 involved, and procured a summons for the defendant returnable 
 
163 
 
 in five days. Then a preliminary hearing occurred, at which 
 the plaintiff made out a prima facie case , and the deposi- 
 tions of his witnesses were talcen, and if he succeeded the 
 case was then sent to the dikastery; very much as with us in 
 criminal cases there is or may be a preliminary hearing be- 
 fore a magistrate, and a determination of the existence of 
 a prima facie case by a grand jury. Through the Archon and 
 through the magistrate the sovereign power kept a slight 
 hold on the administration of justice, by that prelimingiry 
 proceeding before the proper magistrate of which we have 
 spoken in which the right to maintain the suit was deter- 
 mined and the evidence was taken. In that proceeding a 
 copy of the law governing the case, and all documents bear- 
 ing upon its facts were produced, the evidence was hear4, 
 reduced to writing and sealed up for the further inquiry. 
 Proof by a slave could only be received under the torture 
 at which both parties were permitted to be present. They# 
 made oath to accusation and defense, and thereafter the 
 trial before the Heliasts consisted in a disclosure of the 
 evidence? already given, and in the speeches of the parties 
 or their orators before the assembled Dikasts. Practically 
 the action was tried before the magistrate and summed up 
 before the mob. 
 
 We may expect to see that the evils of these courts 
 will grow to be unendurable, for there is no tyranny so 
 wicked as that of small men suddenly entrusted with great 
 
164 
 
 power j and tleee Dikasts could call before them the highest 
 officers of the State, the wisest and best of the citizens, 
 and subject them to impeachment. Half the really great men 
 of Athens fell before the ignorance and prejudice of this 
 monstrous tribunal. The Dikasteries were open to all those 
 influences of populair prejudice and passion which sway bodies 
 of men exposed to the arts of sophists and demagogues, and 
 at their hands no life or liberty was safe. They were judges 
 both of the law and fact, their decisions without appeal or 
 possibility of correction, and their verdicct dropped into 
 the \irn a reflection of the temper of the moment. 
 
 But however the Athenian assembly refused the rule 
 of tk a King and discrowned Archon and Areopagus, it did 
 not escape leadership. Instead of the King came the Dema- 
 gogue, the man of pliant conscience and flattering tongue 
 and an arsenal ^ of words, who led where he could not drive. 
 His influence in the agora was always dominant and master- 
 ful; if often vicious with the taint of personal ambition, 
 yet sometimes useful and good, but in either event scarcely 
 falling short in its effecct upon the executive and judicial 
 action of the State of the force wielded by a king. The 
 history of Athens during the period of the Democracy is 
 little more than the history of a few men whose voice guided 
 and dominated the public assembly. When we read of the new 
 
165 
 
 constitution which substituted for the will of a tyrant 
 like Hippias the free judgment of all the people gathered 
 in the ekklesia we are reading about Kleisthenes to whom 
 the chemge was due, and who shaped and controlled the 
 national action as surely and as strongly as if he had been 
 the acknowledged king. As we read on and reach the wondrous 
 battle of Salamis which saved Attica for the time from the 
 dominion of Persia, it is Themistocles liio fills the scene 
 and almost cheats the reluctant people into consent to an 
 attack upon the imperial fleet. Then as the history proceeds 
 it proves to be the story of a splendid but treacherous 
 Alkibiades, of the brilliant age and influence of Per ikies, 
 of the rival orators, Demosthenes and Aeschines ik^o split 
 the people into factions, of Ronon forever noisy and unfortu- 
 nate: — always of some one man lifted above the mass, and 
 ruling in the agora very like a king. That igoraitself is 
 new only in/ the rapid extension of its authority. We have 
 seen its prototype already in the eaxlier days, and know how 
 in the German forests the people were doomsmen and made the 
 judgments. At the end of the Athenian experiment came 
 Philip of Macedon and Alexander and the restoration of royal 
 authority. This effort at popular government, this seizure 
 of the crown by the people was not a break in the line of 
 evolution but rather an anticipation out of place and out of 
 time of something due in the future, but prematurely grasped 
 
166 
 
 without the natural and needed preparation. We can look for- 
 ward to sirailsor phenomena in the time of Cromwell which 
 under the guise of popular freedom seated a new King but 
 blinded the eyes of the citizens by calling him a Protector. 
 And yet in both cases seeds were sown, ideas were born, sure 
 to grow and develop, and lead to an Age when personal idola- 
 try will disappear, and the world be able to realize a sover- 
 eignty without the stupid and dangerous method of reverence 
 for an accident. 
 
 But the archaic King did not stay at home . His love 
 of war carried him abroad. Either because there was some 
 pressure behind him, or his Ismd grew too narrow for in- 
 creasing numbers, or he was tempted by the hope of a richer 
 and sunnier soil to be had as the prize of abattle or two, 
 he was always on the move. Along the foot-halls of the 
 Himalayas he flowed into India: amiang the narrow valleys 
 and mountain ranges of Greece he established new tribes: 
 he overran Gaul and Spain and Italy ^nd possessed himself 
 of Britain. Two things, bearing -gipon the growth of the Law 
 and tending largely to influence its diiiection, arose out of 
 this restless and adventurous life. One was the tenure of 
 land resulting from victory. We have already indicated one 
 way in which it was affected, and hinted perhaps at the more 
 important one which now appears. The barbarieun King as a 
 conqueror did one of two things. He either exterminated the 
 
167 
 
 original owners, or suffered them when submissive to remain. 
 In either event he parcelled out the land to his followers. 
 He gave it; it was a gift. He did not at all look beyond the 
 life of the tribesman, but was free to give it over again 
 when the latter died. The Chief became the one universal giver, 
 the one source of title, and it was easy for the idea to grow 
 that every transfer of land was a gift, and that all the land 
 was held mediately or immediately of the King. But where his 
 gift covered land already occupied by the conquered race they 
 were either compelled to abandon their homes or stay on such 
 terms as the donee should dictate. Ihen they stayed they be- 
 came vassal tenants, bound to give a share of products or to 
 render services to their new master. He was not likely to 
 teike their word. The archaic man put no trust in a mere pro- 
 mise: he must have an oath: the tenant must swear something 
 very like an oath of fealty. How much of this there was in 
 the early invasions we do not know: it is possible only to 
 guess: but we can see enough to shut off any surprise when we 
 shall find Feudalism following the Norman Duke into Britain 
 and laying violent hands on the Law. 
 
 Another thing is to be noted. Our King seems always 
 to have a priest at his elbow. The fact ought to have made 
 him better but commonly made him worse. The grand Louis, the 
 sour and saturnine Philip, the bigoted James, were not in that 
 way put on the road to mercy and charity. And yet the King 
 
168 
 
 finds the priest always a convenient friend, for he exercises 
 a powerful control over the superstitious of the people. The 
 priest who can placate the grim Woden who lost one eye at Mim- 
 nir's well, or #iom Brahma made from his mouth, or who can in- 
 troduce one to the Hourie of the Moslem, or borrow the Keys 
 of Peter to lock us out or let us in, is a very valuable man 
 to a restless king trying to govern a restless race. For 
 the priest can read and write and do svims in airithmetic, for 
 which i work the king has no time, and indeed may scarcely 
 know his letters. One Ssixon king confessed that as he made 
 his mark at the end of a charter, smd a Roman emperor and a 
 Gothic king had the same trouble. When, therefore, it comes 
 to writing out a code of laws who so fit as the man with the 
 beads? We shall see some of their work hereafter: often a 
 disorderly mixture of religious creed with civil law, but very 
 interesting and useful to the scholar vJh.o would understand the 
 Past. And so we may be glad that wherever the King goes there 
 is the black robe of a priest or the red cap of a cardinal 
 in his train, and that these will help him to write out his 
 law. 
 
 Ba% while these two elements of power work together 
 for a time, they do not coalesce, are sure in the end to • 
 quarrel. Both are by nature and habit autocratic; both are 
 ambitious to govern and control; neither is willing to submit 
 to the other. The priest deems himself vicegerent of alcollege 
 
169 
 
 of gods and then of a edngle omnipotent Deity. He elects 
 himself to the office, and in virtue of it seeks to override 
 and dominate the civil authority. Ere long he rises into a 
 Pope and strives to put both kings and people under his feet. 
 He has a law of his own, canon^^ decretals, bulls of excommuni- 
 cation, and assumes to be servant of Peter at the gate, o^ 
 course he quarrels with the king who stands vearyjS in his way 
 
 A 
 
 and soon begins to strike back. Each frames his own law, and 
 the lines of jurisdiction get sadly entangled and breed a 
 constant succession of disputes. Necessarily there comes a 
 severe and bitter struggle for supremacy. Shall the Priest 
 or the King master the law of the world? It is not needed 
 for our purpose to follow the conflict to its end. It is 
 enough to know that an ecclesiastical law thus came into 
 existence, and acted and reacted upon the Qivil law of the 
 nations, and wove a priestly strand into the web of the Com- 
 mon law. And this again was no break in the line of natural 
 development. The conflict was one of those struggles of 
 which every evolution is full, and ends inevitably in the 
 "survival of the fittest". The law teaches the priest his 
 place. It puts him outside of the walls, but at the same time 
 borrows from him much that is useful and. good. And thus 
 there is left on our hands aj£ double development of status ;- 
 the Pope, the Cardinal, the Bishop; — the King, the Chancellor, 
 the Judge. We shall soon see how each plays his part. 
 
irb 
 
 VI. 
 
 TRANSFERS OF POSSESSION. 
 
 Below and beneath the King in his governmental and 
 judicial chgiracter , and below and bdneath the action of the 
 communal ooiirts, there were between individuals customs and 
 rules relating to the possession of Things which grew up of 
 themselves and were translated into Law. They respected the 
 private dealings of the people with each other, which for a 
 long time the King's courts did not recognize or regulate, 
 but which formed the basis of all rights of property in mov- 
 ables. We must turn our attention to these. 
 
 It is impossible to admit, as we have already done, 
 a natural possession among primitive races of things movable, 
 which clothes itself by time and circumstance with attributes 
 resembling ownership, without also conceiving the existence 
 in some form of voluntary transfers of that possession. Out 
 of them grew the legal doctrines both of Bailment and Sale and 
 we incline to the belief that the former in some of its simplest 
 forms came first. Many things must have been loaned between 
 primitive Families and been transferred and then returned; 
 and it would be quite natural for the lender , if he saw some 
 misuse of the thing borrowed which threatened its injury or 
 destruction, to require suitable care in its use, and warn the 
 temporary possessor that if not returned unharmed it would not 
 be lent again or some penalty would be imposed. The children 
 
171 
 
 would vexy quickly linder stand that what they borrowed must 
 be returned, and without detriment from careless use; and 
 would expect the same rule to apply as between themselves. 
 They grow up and establish households of their own, and the 
 grouped families become the Tribe. By one of such families 
 to another there must have been an occasional lending of 
 airticles of use, and, where the thing was not meant as a 
 gift, its return was expected or required and in an unharmed 
 condition. This transaation, certain to have occurred, our 
 law describes as a gratuitous loan for use. But asiae day 
 a member of the Tribe steirts Sway for a long absence on an 
 erranid of the chase or of war, and, unable to take with him 
 all his movables, leaves some of them in the care of a 
 neighbor until he shall again reach home. When that happens 
 of course he expects them to be returned, for he has put 
 trust and confidence in his friend. This event, when the 
 law comes to describe it, wil^l- be called a gratuitous de- 
 posit. Then again: one family finds its supply of conn 
 reaching an end. There is not enough to last till the new 
 crop matures and a further distribution will come. Another 
 family happens to have a surplus and out of that lends what 
 is needed to supply the neighbor's deficiency, but with the 
 understanding that after the approaching harvest an equal 
 quantity shall be returned. This transaction, the Roman 
 law when it comes will denominate a mutuum. It is a loan to 
 
172 
 
 be repaid in kind. In all these cases we have before us 
 what for convenience we may call a natural Bailment and we 
 must follow it through its changes. 
 
 Undoubtedly it began in a simple transfer of posses- 
 sion, temporary in its character, for the use of the bor- 
 rower, and wholly gratuitous. The duty originally did not 
 spring out of contract and was not enforced from that direc- 
 tion. It grew out of the bailor's possession, parted with 
 temporarily as a fact, but remaining as a customary right, 
 and recognized as such by the very act of the borrowing; 
 and ia, violation of la that right was regarded rather as 
 a tort or wrong than as a breach of contract. The early 
 English remedy was detinue and it was long before redress 
 in assuflipsit , founded upon a promis express or implied to 
 return, was allowable at all. Indeed the law of bailment 
 to this day vibrates incessantly between tort and contract, 
 assuming doubtfully and in turn the peculiar features of 
 each, and leading to much of the difficulty which besets 
 the subject. Sir William Jones, in his valuable essay which 
 aimed to clear the law of bailment of its confusion, declares 
 that fax from the reign of Elizabeth to that of Anne the 
 doctrine of bailments produced more contradictions and con^ 
 fusion, more diversity of opinion and inconsistency of argu- 
 ment, theui any other part of juridical learning. We shall 
 see why and perhaps the historical methods may help us to 
 master the trouble. Take the case of a simple gratuitous 
 
175 
 
 loan for use. That involves the duty of a safe return of 
 the identical article uninjured except by the wear of the 
 contemplated use. But that duty of return was obstjlute. 
 The risk of loss '07 aoxjident or theft was wholly on the 
 bailfte, aind that for a simple and natural reason growing 
 out of the character of archaic possession and the neces- 
 sities of barbarian procedure. Only the possessor could 
 defend the possession, and so the sole remedy against a 
 thief or wrong -doer who should seize the property was in 
 the hands of the bailee. The Salic law and that of Alfred 
 are full of details as to the remedy. The party deprived 
 of the possession must promptly strike the trail of the 
 trespasser. If he came up with the cattle in three days 
 he could take and hold them subject only to swearing that 
 they had been taken from hira against his will. In this 
 rude style he issued and enforced his own writ of replevin. 
 If more than three days had passed the defendant might 
 swear if he could to his own title. So there was a sort 
 of self -redress on both sides. But who could pursue the 
 thief at once and take the oath that he had been deprived 
 of possession against his will? Obviously, only the actual 
 possessor, — that is, the bailee. The bailor, out of posses- 
 sion in fact and ignorant of the truth, had no remedy against 
 the thief, and all he could do was to look to his bailee 
 and hold him responsible. The latter had a remedy over. 
 
174 
 
 He could pursue and re -take the property and was bound to 
 do so; and hence it was no answer to the bailor's demand 
 for a return that the cattle had been stolen or taken by 
 force. The bailor could not know the facts, had hardly a 
 chance to ascertain them, and so was left wholly at the 
 mercy of the bailee if obliged at all to take his story 
 as true, and so there seemed no possible way of protecting 
 property loaned except to hold the lorrower absolutely 
 liable for the return. And so our starting point is that 
 as between bailor and bailee and in all sorts of bailment 
 the bailee must return the property or its equivalent, and 
 can stand upon no excuse for its loss. The changes that 
 came operate at this single point and flow in this sole 
 direction, amd the fundamental question all along the line 
 and even now is, what, in a given^ will ei^use the bailee 
 for not returning the property or its equivalent to the 
 bailor, add the answer to that question ssxs solves the 
 MShole problem of bailment, so far as the bailee's duty to 
 the bailor is concerned. In the Mosaic law we observe how 
 Jacob complains to Laban about the flocks and herds en- 
 trusted to his care by the latter. The shepherd bailee 
 says; "That which was torn of beasts I brought not unto 
 thee. I have the loss of it. Of my hand didst thous re- 
 quire it whether stolen by day or stolen by night." But 
 modifications came in thstt law. A difference was admitted 
 
175 
 
 between a theft by night and one by day, which must have 
 been founded upon an obvious want of care possible in the 
 one case but not so possible in the other. Moses says 
 that if the ox or ass be stolen the bailee must make resti- 
 tution, and in order that he may do so he is provided with 
 recourse against the thief. If the latter kill or sell 
 the animal he was to restore five oxen for one and four 
 sheep for one. If he be caught breaking in he may be slain,- 
 as the quaint text has it,- "may be smitten that he die." 
 If the animal be found in his hands alive he shall restore 
 double, and if he have nothing with which to make restitu- 
 tion he shall be sold for his theft. These were the 
 remedies of the bailee in possession, and so he himself was 
 bound to account to the bailor or real owner and could make 
 no excuse. But these rules as to cattle seem to have been 
 less stringent as to other property. The law-giver says 
 that if a man shall deliver money or stuff to his neighbor 
 to keep and it be stolen out of the man's house the thief, if 
 found, shall pay double, but if not found, so that the 
 bailee could have no remedy over, then the hard rule as 
 to cattle was not applied, but the bailee was brought 
 before the Judges to see whether he had put his hand unto 
 his neighbor's goods, and if he made oath that he had not 
 he was excused from making the loss good. We may suppose 
 and so suggest that the difference which the Hebrew mind 
 
176 
 
 saw in the two cases was this. The cattle could be traced 
 if pursuit was fresh and prompt, and that was the duty of 
 the bailee. But money or stuff left no trail, was easily 
 hid and hard to find, and the bailee's redeLdy therefore so 
 precarious that he was excused from a return if he showed 
 himself not to have been in fault gmd unable to detect the 
 thief. As to casualties or accidents which occurred in 
 the absence of the owner, the bailee was responsible, — 
 "he shall surely make it good," — the risk that the smimeLL 
 should be hurt or diet while in his sole possession was 
 entirely upon him. It is clear that the archaic law began 
 with the absolute repponsibility of the bailee to the owner 
 because the former guLone by force of his possession could 
 guard against accident or have redress from the trespasser, 
 and that the law starting at that point has given remedies 
 to the owner and admitted excuses from the bailee. Those 
 excuses adapted themselves to the varying conditions of the 
 different sorts of bailment, and were formed upon concep- 
 tions of the duty of the bailee in caring for the property, 
 and so the degree of care which he ought to exercise in the 
 custody and use of the thing bailed became the subject, first 
 of thought, and then of custom, add finally of law. That 
 duty of care preceded any contract about it. In modern 
 times we rely mainly upon an implied contract to exercise 
 the proper degree of care: but an implied contract is never 
 
177 
 
 raised except out of a duty already existing. The law 
 supposes a promise to do what it sees ought to have been 
 done, and founds its remedial fiction upon an actual duty. 
 And even now, while bailment stands upon contract, a wemt 
 of the necessary care is described in terms of tort. We 
 say the bailee is liable for negligence, and classify the 
 different degrees of negligence which make him answerable. 
 We may suspect 4hat mode of expression to be aj^ survival of 
 the old habit of thought when a bailment rested upon a 
 duty born of the nature of the transaction, and not upon 
 the promise of a contract, and that what we really now mean 
 when we speak of the bailee's negligence is merely his 
 omission to perform a contract duty, that is, a breach 
 of contract rather than guiltiness of a tort. And yet the 
 old ingrained idea that the very nature of the transaction 
 involved a duty on the part of the bailee to restore the 
 thing bailed, whether he had promised to do so or not, 
 and that his refusal was either a positive wrong or at 
 least a.i tort in the nature of negligence clings persis- 
 tently to the theory of a bailment and shapes one class of 
 bailor's remedies. He may sue in troveit or bring replevin, 
 and often, pushing aside the broken contract, may treat the 
 bailee as a trespasser ab initio , a wrong-doer from the very 
 beginning. But without worrying over the character of the 
 remedy, or the proper term descriptive of the bailee's de- 
 fault, matters hereafter to be considered, we may easily 
 
178 
 
 solve all questions of cau:e by starting with the primary 
 truth that the bailee was originally liable absolutely for 
 a return of the property, and that the law of bailment, 
 historically considered, and outside of procedure, is the 
 relaxation of that rule, the gradual admission of excuses 
 for non-delivery, the reasons for accepting those excuses, 
 and finally exactly what they are. They seem to be many 
 as applied to the different sorts of bailment, but at bottom 
 they are only one . That single excuse is that the bailee 
 exercised all the care which it was his duty to osercise 
 in preserving the property, and so the loss happened without 
 his fault. Inevitably the question followed in each case 
 what was that due care, and by what standard shall it be 
 measured, and that has become the fundamental inquiry with 
 which the la.-vr^ of Bailment is concerned. It became plain 
 to the thought of the later time that the same precise de- 
 gree of care could not reasonably be exacted in every case . 
 The man who begged his neighbor as a gratuitous favor to 
 keep his property for him while he went upon a journey 
 could scarcely ^%^ect of that bailee the same degree of 
 care as that which he might justly exact when he lent his 
 property gratuitously for the bailee's use and at his re- 
 quest. In the one case the favor was done to the bailor, 
 who could reasonably expect only suc|i care as the bailee 
 habitually took of his own goods; while in the other the 
 
179 
 
 favor was done to the bailee, who in return should take 
 greater care of what he was gratuitously perraitted to use. 
 In both cases there was a duty, but em obvious difference 
 in its degrees. Where did that duty come from, out of 
 what did it spring, how did it originate? We shall recur 
 to these questions very soon, although we seem to have 
 
 4 
 
 almost acaswered them already: but just now we assume the 
 existence of the duty in the gene jal consciousness as a 
 fact with which men had to deal , about which they necessar- 
 ily thought and reflected, which they talked about with 
 each other, and sought to adjust for their common interest 
 and welfare. The rule of the absolute liability of the 
 bailee was sure to be questioned fey one when he, as a 
 favor to the bailor, had taken his property to keep for 
 him, and it was burned in an accidental fire, or stolen 
 without his fault by a midnight thief, I kept the goods 
 as I kept my own, and gfgaine were burned or mine were stolen 
 along with yours, — he would say and add, the loss was not 
 my fault and I am blameless, and then ask with the force 
 of ai argument, — if, taking the goods to keep as a gratui- 
 tous favor, he was bound to take better care of them than 
 of his own, and even become for nothing and as a courtesy 
 an absolute insurer of their safety. The strength of 
 this s^peal , its persistent repetition, would sooner or 
 later but inevitably lead to a relaxation of the rule in 
 
180 
 
 such a case, which grew quietly or was pushed forcibly till 
 the admission of the excuse became established. But when 
 that was accomplished we may depend upon it that another 
 sort of bailee would be sure to seek the same relief, and 
 he the bailee for his own gratuitous use. You excused him 
 for the non-return, — now excuse me,— we shall hear him say. 
 But this time it is the bailor who protests. The cases are 
 not alike he insists, — ^you ought to have taken greater care 
 for you asked the favor and I granted it without price or 
 reward. Then comes the bailee for hire who is to be paid 
 for his service about the thing bailed, urging his excuse 
 where there has been a loss, and when he is a common car- 
 rier we find the law which to-day prevails clinging reso- 
 lutely to the old and original type, and holding him as an 
 insurer of the safe delivery of the property, except only 
 as against the act of God or the king's enemies. Those 
 two narrow excuses, save in the event of a special contract, 
 are all that distinguish his liability from the old customary 
 law. A more particular study of the degrees of care, and 
 the standard for their measurement will open to us when we 
 come to examine theprovisions of the Roman law. Still 
 graver questions will arise when the barbarous English pro- 
 cedure grapples with the problem of remedies, and tries to 
 imprison principles in writs. 
 
 Meeintime let it not be forgotten that the archaic 
 law treats possession solely on the basis of the actual 
 
181 
 
 and tangible fact, and subjects that fac* to no artificial 
 ref inemente. The bailee has the possession j the bailor 
 has none; that is the visible and tangible truth, and no- 
 body for the time sees beyond it. The legal ddea of posses- 
 sion, with all its compliaations, is a thing yet in the 
 future, fhen it comes it may deny possession to the bailee 
 and vest it wholly in the bailor, or try to divide it be- 
 tween them, or give a special property to the bailee, but 
 in the Age about which we are busy possession is the palp- 
 able fact, unwarped by logic. 
 
 But the process of lending very soon led the Tribes- 
 man to a transfer meant to be conc-lusive, and where there 
 was to be no return of the eirticles involved. It took the 
 simple form of what we yet know as an Exchange or Barter. 
 There must have been, and we are sure that there were such 
 frequent exchanges of pSssession. In its earliest and 
 simplest form it was merely an actual transfer of actual 
 possession without any accompanying agreement limiting or 
 modifying the result. One chief has an over-supply of 
 oxen but needs anjf additional horse. His neighbor lacks 
 oxen but has a surplus of suitable horses. The fixcess of 
 one will redress the deficiency of the other, and, as 
 naturally as water seeks its level, the exchange will oc- 
 cur, and the balance of convenience and utility will be 
 restored. Nothing however has happened dxcept an executed 
 and completed fact, very far removed from the more abstract 
 
182 
 
 notion of an unexecuted agreement. The consent to exchange 
 has no contract force except as involved in the actual 
 change accomplished, and the occurrence of the fact itself 
 as a product of the mutual consent is the only essential 
 element of the transaction. But in days when stealing 
 cattle was pardonable and even respectable, and the only 
 reprehensible feature, as aniong the Spsirtans, was the 
 blunder of being detected, the transfer by consent needed 
 some proof or evidence to stamp it as voluntary and dis- 
 tinguish the consequent possession from the results of 
 robbery. And so it became customary to make the exchange 
 in the presence of witnesses who, seeing and knowing the 
 real fact, could verify it for the security and safety of 
 the transferee. These were called transaction witnesses. 
 Originally, their oath was necessarily conclusive, for 
 there was no mode of sifting or challenging it tdll later, 
 and in case of dispute he who could muster the larger 
 number to swear him through prevailed. In Britain, for 
 centuries before the Conquest, every sale was required to 
 be executed in the presence of witnesses, and in the time 
 of the Conqueror, and even when Glauvill wrote a century 
 later, the party accused of obtaining possession by theft 
 would defend himself by producing the witnesses present 
 at the actual purchase . They were called secta or suit , 
 and if the accused had not sufficient suit he was in danger 
 
183 
 
 of felony. A trace of the similar custom is found in the 
 Hebrew history. Abrahem bought of Ephron a burial place 
 for his wife at a cost of four hundred shekels of silver, 
 and he declares that the transfer was "made sure" "before all 
 that went into the gate of the City." In the laws of 
 Howke the Good it was 4. said "if a man part with one thing 
 for another without witnesses there can be no contract." 
 Witnesses to the actual transaction were essential to the 
 validity of the title. 
 
 But the early and simple excdianges were very rude and 
 imperfect customs, anc^soon fell far short of the needs of 
 social life. It was comparatively seldom that the precise 
 necessities of one were found balanced by those of another 
 60 as to suggest and justify and! adequate exabange. The 
 contrary was more often the truth, and thus was developed 
 the necessity for some uniform representative of value, 
 exchangeable always for everything seuLeable ; scmething to 
 serve as Money. The world has tried all sorts of experi- 
 ments in seeking to supply that want. The earliest common 
 measure of value, was, naturally enough, horned cattle. 
 Homer relates that Diomede gave nine for his shield and 
 Glaucus, the vain prodigal, one hundred for his. Indeed 
 in New England they were legal tender for taxes in colonial 
 times and as a consequence the town got all the scrawny cows. 
 
184 
 
 In central Asia cattle are said even yet to be used as 
 measures of value. They served the purpose but rudely. 
 The peasant who needed to buy a loaf of bread and had only 
 an ox with which to pay must either purchase much more than 
 rexjuired or find some other mode of exchange. Evidently, 
 a measure of value which was divisible without injury or 
 destruction was the desirable standard. In Abyssinia it 
 was salt: among the shore Indians of New England, dried 
 cod; in the region of Hudson's Bay, beaver skins; in Ply- 
 mouth colony at one time, corn; in Maryland, tobacco, and, 
 it is said, as a consequence of the cession by that State 
 of a part of the District of Columbia, that the fees of the 
 clerk of the Federal court down to a very recent period were 
 by law payable in that currencsy. But all these articles 
 were awkwsird to handle, perishable, and of varying and un- 
 equal quality. Some medium was more and more required of 
 great value and little weight, practically imperishable, 
 and always absolutely uniform in quality. Iron and copper 
 and bronze were used by the Greeks and Romans, first in 
 bars, then^ in rings, and finally in flat discs; and id^ 
 equally useful and convenient, and a remarkable advance, was 
 the wampum of the North American Indian. This consisted of 
 white beads and black, the former from the shells of the 
 periwinkle, t te latter worked out with ssime labor from the 
 
185 
 
 black parts of the clam shell, and double the value of the 
 white, and both arranged first in a string, then in clusters 
 of strings, and finally in belts. Even this shell currency- 
 was in colonial times received for taxes, — a white belt 
 being the equivalent of five shillings worth of furs. It 
 was easily divisible, for three beads of black and six of 
 white equalled one penny. But the difficulties remained 
 that uniformity of quality had not been reached and so 
 there was variance in value, and the awkward currency was 
 inconvenient to handle and preserve. There is good iron 
 and poor iron , and the Indian beads fell before the in- 
 flated currency produced by the glass beads of commerce. 
 Steadily prudence pointed to the substitution of the pre- 
 cious metals and the use of silver and gold. They answered 
 all requirements. Easily divisible, practically imperish- 
 able, of great value and little weight, absolutely uniform 
 in inherent quality, and capable of taking a permanent 
 stamp they inevitably superseded the ruder materials and 
 came into general use. Whem and how the gold and silver 
 coin first appeaired we can scarcely say. The silver shekel 
 appears in the Pentateuch; and among the Greeks Pheidon in 
 the 8th olympiad first coined copper and silver. It is 
 said that he borrowed the system from the Phenicians, and 
 they from the priesthood of Babylon. That empire is credited 
 
186 
 
 with the origin of the talent, the minia, and the shekel. 
 But, whatever that origin, or the lines of its evolution, 
 the coinage of gold and silver only reached its complete 
 and perfect result only when the State and the Law added 
 the stamp of its authority, and ended the tedious process 
 both of weight and assay. When the merchants no longer 
 needed his scales or his acids, but could tsike with safety 
 by simple count the money of the realm^l, a powerful impetus 
 was given to trade and commerce, and new relations con- 
 sequent thereon led to an enormous growth of customary law. 
 The simple and rustic exchange of one article for another 
 became the purchase or sale of such article for money. At 
 first it was still an executed contract, — delivery of the 
 property by the vendor, delivery of the money-price by the 
 vendee, — and equally requiring the presence and observation 
 of the transaction witness, who could verify the transfer 
 because there was the fact of a mutual delivery which his 
 eyes could see. 
 
 But some of the early transfers by way of sale seem 
 to have been very imperfect, and always to have had about 
 them room for repentance. They appear to have been tenta- 
 tive and open to a chance of rescission and not absolute. 
 The most remarkable instance is that stated by Professor 
 Lee in his account of the Babylonian Law. That account is 
 
187 
 
 startling. It shows us a law in a very advanced stage and 
 approaching a level with our own. How accurately the 
 tablets found have been diciphered must be elsewhere deter- 
 mined, but it would not be surprising if the investigators 
 were found to have sometimes carried back into those dis- 
 taxit ages a trace of our modern thought. We do not assume 
 to criticize: we merely venture to doubt. But one fact 
 seems to be made quite certain. No sale was absolute: 
 always the thing sold could be redeemed: by the vendor him- 
 self, by his family after him: and at any succeeding period 
 without limit or restriction. Of course such a rule could 
 not be endured in an age grown to be commercial, at least 
 in its application to movables. We may doubt if it applied 
 to them, though there is the case of the reclamation of a 
 slave. But the family land was likely to include the slaves, 
 and since that land was often alienable only with the con- 
 sent of the family we are not surprised to be told that the 
 Babylonian vendee, required a covenant not to reclaim signed 
 by the f ajnily as well as the vendor . We shall find similair 
 conditions attached to a sale in the Hindu law and again in 
 the law of Moses: and atrace of the sajiie habit shows itself 
 in Wales where the Cambrian who had gone beyond seas and 
 whose family land had been sold under judicial authority 
 could redeem it on his return by paying the "counter price." 
 But the exchemge of property for money, the sale for 
 
188 
 
 a price, quite early took on ainother modification which 
 ended in a debt. The vendor delivered the property to the 
 vendee for a price to be paid in the future, and the latter 
 became debtor for the amount. Here again the transaction 
 witness was essential to what he saw and heard, but there 
 remained only one side of the visible fact where formerly 
 there were two. He sa saw the delivery of the property 
 by the vendor. That was the one tangible fact, which must 
 occur to enable him to know that there was a sale at all. 
 And so it came about that every valid and enforceable 
 promise required inevitably the concurrent delivery of a 
 quid pro quo which the witness could see ajid verify: in 
 fiSSfiS other words that prime essential of a modern contract 
 which we call a Consideration. 
 
 But another thing was needed. The arahaic man put 
 no trust in a promise. Words^but breath and he dealt only 
 with real things. He was quite unlikely to part with his 
 property without an actual exchange unless the promise to 
 pay was in som-e manner strengthened and made certain. His 
 first invention in the way of Security was the Oath which 
 led in the end to the jurisdiction of the Bishop over 
 pledged faith: and next the Hostage which became the debtor 
 himself held as a slave: and then the Pledge evolving later 
 into various forms, about each of which we shall soon have 
 more words to say. 
 
189 
 
 The invention of gold and silver coinage, 
 the introduction of money, led to another form of customary 
 dealing and developed in cleax outline what seems to have 
 been originally an outgrowth of -hatural Bailment. That was 
 the loan of money to be returned in kind by the borrower 
 with a compensation for its use which we call interest. 
 Before the invention of money there were few things so 
 nearly uniform in value as to admit of that form of con- 
 tract. Corn and wine are mentioned as subjects of such 
 an agreement, it being understood that the identical thing 
 loaned was not to be returned, but instead an equal or larger 
 quantity of corn or wine of equivalent queility. We can see 
 all the difficulties surrounding such a transaction, the 
 disputes which would inevitably arise, and the uncertainties 
 and risks of the dealing, and it !^is quite possible that 
 such transfers were at first few and rare: but when money 
 came into being and began to pour through the business 
 arteries it easily became the subject of such a loan, and 
 the ffiutuum and its consequences of usury spread rapidly 
 over the world. There came at once the loan upon interest. 
 It lent wings to commerce and the wings were ships, — leirge- 
 ly built and manned and loaded out of the capital borrowed 
 in the hppe of greater profit than the usance charged. 
 When that commerce began is not so certain as one might wish. 
 History long gave its origin to the citizens of Tyre: but 
 
190 
 
 there have not been wanting those who assign to an earlier 
 
 date the beginnings of commercial activity. Such a claim 
 
 has been made for the Arabians on the hypothesis that 
 
 two 
 Sheba amd Raam,ah were itxx of their cities accessible to 
 
 India and the Eed Sea, and who pushed their slight vessels 
 
 to shores and islands whence they brought spices and gems and 
 
 gold and silver, and stored up the wealth at which the 
 
 Hebrews marvelled, and which they though it impossible to 
 
 exaggerate. Solomon, when about to build the temple, sent 
 
 to the King of Tyre for the cedars and firs of Lebanon, 
 
 which were brought to him by sea in floats, and then built 
 
 his navy with which his merchantmen sailed and trafficked 
 
 with the Kings of Arabia. We readily recall the visit of 
 
 the Qjieen of Sheba, and her jewels and aromatic spices and 
 
 gold and silver magnificency , indicating the wealth gathered 
 
 in her own land and which must have cone from afar. Egjrpt 
 
 built up the city of Alexandria, whose ships sailed to the 
 
 East and on the Red sea, and whose caravans came across the 
 
 sands or were floated down the Nile, until, in the time of 
 
 the Ptolemies, its imposts are said to have reached the 
 
 equivalent of two and a quarter millions ±f^ of pounds 
 
 sterling. These movements were tremendous in their re suit ~ 
 
 ant effects ^ich spread in multitudinous directions. Money 
 
 ^d Commerce worked together to create new relations, and 
 
191 
 
 out of them sptang new customs and. naw laws. They changed 
 the social lives of the people, and gave us customs which 
 became the L^w mejtchant, regulating the transfer of money 
 and credit, and the law of the ship governing the transfer of 
 merchandize and the perils of the sea. Under the stimulus 
 of the new movement Bailment rapidly took four forms: the 
 loaning of money at interest, which was really not a bail- 
 ment at all; the employment of factors to sell the goods 
 entrusted to their care: the contract or duty of carriers 
 for hire; and the pledge or pawn as security for an engage- 
 ment. 
 
 The Jews seem to have been the first money lenders 
 and tend strongly toward that pursuit in modern times. 
 They were found sitting on benches at the doors of the 
 temples, changing money for the pilgrims visiting foreign 
 shrines. From the word "banco", descriptive of the bench 
 up©n which they sat, probably is derived our English word 
 bank, although the first IsattittBXK institution of the 
 kind appears to have sprung up in the old Venetian Republic 
 as the result of a forced loan for which an annuity of four 
 per cent was given in exchange. The Jewish capacity for 
 managing capital and adding to it by usury was only equalled 
 by the hatred and contempt which they inspired. There 
 seems to have been in early days a great abhorrence of 
 usury which is not as yet altogether dead. Land and cattle 
 had a natural increase: gold had none: and to make it grow 
 
192 
 
 or breed by usury was in many taces deemed a sin. The Mosaic 
 law forbade it among the chosen people, the Mohammedan law 
 denounced it under the name of riba, and in Norman England 
 no Christian might exact it, and so the Jew had the whole 
 field to himself. And yet he was the serf of the king. 
 Bracton telle us that the Jew acquires nothing for himself 
 but all for the king. Royalty bled him freely, but judi- 
 ciously , without destroying the source of supply, and so 
 the Jew throve, grew rich, owned lands and manors, until 
 the populace began to howli and in the 13th century the 
 Jew was banished from the realm. We all know how he came 
 back again. 
 
 But all these loans of money seem to have 
 been somehow regarded as a bailment; the sums lent to be 
 returned, not in the identical coin but in that of equal 
 value, and the bailee's duty to pay was enforced as a 
 tort and not as a contract. The money lent passed wholly 
 into theji^ ownership of the borrower, but the money due was 
 looked upon as the property of the lender, for we shall see 
 that he sued for it as his money unjustly withheld. Neces- 
 sarily with the title to the sum loaned went the risk. Lose 
 of the money by accident misfortune or theft was no excuse 
 for withholding the due equivalent, for the loss fell on 
 the owner and the supposed bailee became that owner , and 
 the bailment became a debt. The original liability has 
 
195 
 
 always been retained in its full force, though on a dif- 
 ferent ground, and the bailee of the money is absolutely 
 bound to return the equivalent. Undoubtedly he sometimes 
 rebelled. When Antonio's ships went down he thought it 
 hard that Shylock should enforce his bond, and always the 
 debtor has struggled for an excuse and for relief. The re- 
 laxation in other cases of bailment led him to demand a 
 similar treatment founded on similar degrees of care. If 
 he lost the money by a theft and without fault why should 
 he answer for it absolutely, and not if it was a horse or 
 a hatchet borrowed for hire? His struggle failed in the 
 direction of bailment, but he partially succeeded by driv- 
 ing the loan of money out of bailment, where it did not 
 belong, and into contract and debt, ad then forced relief 
 by bankruptcies and exemptions from execution. The Factor's 
 duty in the custody of goods entrusted to him for sale has 
 undergone a change mainly by being forced out of the law 
 of bailment and coming under the dominion of the law of 
 agency. In Judge Story's work on bailment, out of six 
 hundred pages less than one single page is busy about fac- 
 tors, and the subject is said to belong properly to a 
 treatise on Agency. Mr. Justice Markby, in his elements 
 of law, while speatking about Security, makes the following 
 remarkable statement: "English lawyers have placed them- 
 selves completely under the dominion of Story. I am not 
 
194 
 
 sufficiently acquainted with Story's writings to venture 
 to appreciate exactly the value of hie authority on general 
 principles." That is rather sua odd confession for an 
 Indian Judge at Calcutta to make, especially when he at 
 once proceeds to criticize the man with whose works he is 
 not familiar. Hereafter we shall take the measure of the 
 criticism. For the present we are content to follow Story's 
 authority. He declares that factors are liable only for 
 a reasonable degree of skill and for ordinary care and 
 diligence in the exercise of their vocation, and so are not 
 chargeable for a loss by theft, robbery, fire, or other 
 accident unless connected with their own negligence. They 
 have worked out a relaxation of the original rule which 
 mitigates its severity, and evidently have founded the 
 result upon the fact that the bailment is for the benefit 
 of both parties and not merely for that of the factor, 
 and probably also upon the truth that the bailee has no 
 title to the goods though authorized to transfer title to 
 others. 
 
 We have spoken already of carriers for hire, 
 and so pass on to the Pledge or Pawn. When, where, and how 
 the notion of security for an engagement originated has 
 never been answered satisfactorily by any authority within 
 our reach, and we must reason about it in our own way until 
 at least'some wider and more thorough investigation shall 
 
 correct our understanding of the facts. It was very early in 
 
195 
 
 the history of the human race that men began to seek for 
 some sanction to strengthen a promise. The ancient people, 
 without perhaps concluding that all men were liars, knew 
 very well that many men disregarded their promises, and 
 that a promise of any kind was quite sure to waver and 
 weaken before the selfish interests and instincts which 
 often confronted it, and above all that there was no mode 
 of enforcing it. Executory contracts, therefore, ending 
 in a debt, were at first rare, and when they ceune , or 
 where reliance was to be put upon an engagement resting 
 for performance in agreement alone it was natural to seek 
 some method of coercing the will of the promissor and 
 holding him to his promise when interest or temper favored 
 its abandonment. The first instrumentality used was the 
 Oath, which brought to bear upon the will of the party pro- 
 mising the whole brood of superstitious feairs which domi- 
 nated the Age. The agreement, easily broken when resting 
 upon the mere word, was not so weak when fortified by an 
 Oath behind which stood the anger an(t revenge of an insult- 
 ed Deity. The Homeric poems and the Mosaic history are full 
 of these Divine imprecations resorted to for their compel- 
 ling force when the Spartan king and the Trojan prince 
 agreed to settle the fate of Helen and the outcone of the 
 war by a personal combat the agreement was not left to the 
 brittle promise of the parties, but Agamemnon for the Greeks 
 
196 
 
 and the aged Priam for Troy join in a solejain oath to abide t 
 the issue, and imprecate with formal sacrifices the venge- 
 ance of the Gods upon him who violates his plighted faith. 
 But the security of the oath lay only in the fears of the 
 individual , and was measured by the intensity ox weakness 
 of his religious belief, and something more and different 
 was required where important interests were at stake. It 
 became common to give and take hostages, holding their lives 
 in pawn as security for the treaty made. Easily that prac- 
 tice led, first, to the nexum in which the debtor before 
 six witnesses pledged himself as security, and so became 
 the debt-slave of the creditor. But still the security 
 merely' affected the will of the debtor ajid was dependent 
 upon that will. What was needed was seme form of security 
 not dependent upon his will and operative without it or 
 against it, and that came when the debtor put into the 
 creditor's possession property in pledge and a power of 
 sale was added by stipulation or by the law. The pledgee, 
 says Story, is bound to keep the pledged goods with ordin- 
 ary care, and will not be liable for their loss by theft 
 or accident unlessjl^ the bailee's neglect is a concurrent 
 cause . 
 
 At the present stage of the discussion, and looking 
 back over what we may call these business or trading rela- 
 tions of archaic men, we observe that everything in the 
 
197 
 
 nature of a Right rests upon a pre-existing Duty: that such 
 Duty comes first in the order of development: that it springs 
 out of the facts of each actual transaction: that nobody is 
 conscious of it until the Duty is disregeorded or resisted: 
 that such breach of it becomes a visible and tangible wrong 
 because sure to be resented and punished: and that this 
 dawning conception of ±xm a Wrong inevitably involves and 
 breeds the further conception of a Right which has been 
 challenged and invaded. 
 
 We further observe that the Duty thus recognized is 
 something which takes the place and supplies the protect- 
 ing care of Force: that it comes with some degree of Peace 
 and a gradual cessation of violence: that it rests upon the 
 common consent and general recognition, weak at first, but 
 growing stronger with the Japse of time: that nobody as yet 
 in any manner realizes that truth or analyzes it into its 
 elements: that nevertheless some gleams of it here and there 
 appear: that men are on its track when they axe reaching out 
 for something which will validate and uphold a Promise: and 
 that when they have found that something they will have found 
 Contract and will be making Law. 
 
 And thus we further observe how easily and without 
 the ache of analysis we master and comprehend the legal 
 abstractions first of a Duty then of a Wrong and last of 
 a Right when we approach them by the Historical method and 
 
 ^r^ -t-v. ^ ^yAay n-F t. V.ftT-r nnrmfll growth. 
 
198 
 
 VII. 
 
 THE MOSAIC LAW. 
 
 We have gathered so far many of the facts which de- 
 scribed and attended the relations of men with each other 
 and with the governing authority which happened to have 
 sway over them. These facta which constituted the exter- 
 nal morality and prevailing customs of the different groups 
 need not be at present reduced to order and system, because 
 much of those morals and customs, though in a very imper- 
 fect way, were crystallized by the social organisms them- 
 selves -into definite Codes or systems, and in that manner 
 became imperative even if not so before, and gained thdreby 
 the form and force of Law. It is obviously prudent to 
 study these Codes in advance of any attempted arrangement 
 of our own since their very defects will serve as guides 
 and warnings for any conclusions we^ may hereafter frama. 
 We shall select for the purpose of that study the Mosaic 
 code governing the Hebrew tribes, the laws of Menu which 
 the Hindu referenced, the Greek law of Lycurgus and Solon, 
 the ^ Salic law of the Franks, and the Twelve Tables of 
 Rome . 
 
 It was not strange that, in the old Society, Law 
 mixed itself up with Religion and Idtft in doubt the domain 
 and office of each. There was little chance among the 
 
199 
 
 Hebrews or the Hindus of any systematic collection or 
 modification of accepted rules of conduct, still less of 
 innovations upon them, except at the hands of the Priest- 
 hood. That body absorbed nearly all the learning of the 
 Time, held in custody the records and traditions of their 
 race, and stood in that superior and commanding relation^ 
 to the masses which was most likely to secure a dominemt 
 authority. They had time for study and reflection. Sup- 
 ported by the tithes of the community, they could devote 
 themselves to the sacred books and the racas -traditions kx 
 handed down to them, in the quiet of peaceful lives. They 
 were the moral aucbiters of the people to whom disputes 
 were referred, and by whom rules of conduct were determined 
 and formulated. Beyond that, no reasonable hope was ap- 
 psa*ent of compelling the warring and stealing and lying 
 humanity of the time to obey any fixed rules or submit to 
 any permanent restraint iinless, somewhere and somehow, 
 there could be placed behind them a force and authority 
 which would make disobedience unhealthy and dangerous. 
 The Patriarch, while claiming and exercising a govern- 
 mental control, was always tempted to add to it a super-< 
 natural element, and to strengthen it by professing to 
 have derived it from the omniscience of Deity. That, 
 Moses did. The God of his race and time was Jehovafr, — an 
 ideal ruler very different from the Supreme Being in whom 
 
200 
 
 we believe, moving on a very much lower plane, full of the 
 faults and vices of those who painted him with a brush of 
 their own faults and vices, angry and vindictive and 
 more cruel than merciful, — and ydt one in his solitary 
 grandeur, very far above the eastern and the Olyimpian dig- 
 nitairies, and leading the way to a truer and a higher concep- 
 tion. This Jehovah was described as the God of the Jews. 
 He was their God. They were his people . Stranger and 
 foreign races he cared not for. He made them no promises, 
 he gave them no help; they were merely heathen, and he was 
 always ready to aid in their slaughter and the seizure of 
 their property for the benefit and enrichment of his chosen 
 people. He agreed to send hornets to drive out the occu- 
 pants from the promised land: he slew in one night the in- 
 nocent infants of Egypt to make Phaxaoh let go his hold; 
 he taught his people how to borrow and then keep the gold 
 and gewels of their masters, and helped effectively in 
 the process of spoliation; he buried their pursuers in 
 the Red Sea, drow/ning men and horses without sparing one; 
 and yet this stern and severe Divinity was capable of chang- 
 ing his mind and repenting of his tj^eats when Moses inter- 
 ceded. Of course these tales were in the main mythical and 
 legendary. God is not such.. And yet our own conception of 
 Him, high as it has been lifted up, smd reverend as it has 
 grown to be, is not free from earth-stains. It is not so 
 
201 
 
 long since we relieved Him from the necessity of plunging 
 new-born babes into a pit of fire and brimstone because the 
 serpent tempted Eve. But we cannot understand and cannot 
 appreciate the Civil law of Moses without fully realizing 
 what in truth was the Jewish conception of that Deity who 
 stood as the Heavenly Sovereign, issuing commands and impos- 
 ing the penalties of disobedience. Observe these important 
 facts about him. He was not a far-away God. He was very 
 nego". He came down from the sky often and whenever needed. 
 He had a staff of angels who did his errands and grew so 
 close to men that, if they did not find the eairthly daughters 
 fair and take them for wives, as the text seems to say, 
 yet they sat at the Hebrew tables and brought messages from 
 Heaven. And even the Deity himself came so close to the 
 people of his choice that he required them to build for him 
 a house which be called the Tabernacle, every detail of which 
 he dictated, and which cost not less than a million of dol- 
 laurs, in which he promised to dwell and to commune with 
 Moses at the mercy seat, canopied by the wings of cherubim 
 and made of beaten gold. In alcloud by day and a|fire by night 
 he overhung that wonderful dwelling, and on the march, in 
 that form, led the way- But there was something else about 
 him. He was not an abstraction, whose reward and whose 
 punishment was postponed to the world of Spirits which only 
 opens beyond the grave. He was a very real and tangible 
 
20S 
 
 Being. He not only fought and defeated Satan and 
 and his rebellious troops, who somehow seem to have 
 got loose again, but he punished men in Ihis life as would 
 an earthly Judge or King. He xxi rained fire on wicked 
 cities, and even went so far as to drown the whole human 
 race except the family floating in that marvellous ark. It 
 is true that he many times promised not to do that again, 
 and set his bow in the cloud as a seal to the covenant, but 
 quite a sufficient area of punishment remained. He gave 
 them proof of that. He opened the earth to swallow up the 
 three rebels against Moses. He sent fire upon their fol- 
 lowers and swept the people themselves with the breath of 
 a pestilence. So that he stood to the Hebrew tribes as an 
 earthly governor, living among them, making their laws, 
 punishing disobedience, acting usually through the Patri- 
 arch as his vice-ygenent , and strengthening the latter 's 
 authority as Priest and Judge and Governor beyond anything 
 
 easy for us to conceive. Surely, he and Moses together 
 
 Law. 
 constitute a sufficient Sovereign to ordain and enforceiaw 
 
 It was from this God that Moses claimed to have re- 
 ceived the rules of life and conduct which he prescribed, 
 and it was not only human but also Divine vengeance which 
 furnished an effective and an awful sanction. We know 
 that modern criticism has boasted of having made an historic 
 wreck of Moses, declajring that the Bible story of his life 
 
zi^ 
 
 has been found engraved on Assyrian tablets centuries back 
 of his assumed birth, and that his whole account of the 
 Creation is foimded on a cosmic hypothesis long admitted 
 to be untrue. That may be so. We do not care to inquire 
 about it, for, when all that is mythical and legendary and 
 questionable is stripped away, there yet remains for us, 
 invulnerable and unscarred, the grand figure of the Hebrew 
 law-giver, peerless in his day for wisdom, and bowing only 
 to the one Eternal God ia whom he believed. 
 
 He began with thejif ten commandments, — the strong 
 foundation on which his structure was built, and which is 
 likely to endure while the world lasts. Murder and Theft 
 and Adultery, — the prevalent wrongs of all early races, — 
 were forbidden as in every ancient Code, and to them was 
 added the duty of filial obedience, which we have seen was 
 always a fundamental element of archaic society, and a pro- 
 hiiri-tion of false witness against one^s neighbor. These 
 five were the Civil side of the law, aimed at the preserva- 
 tion of social order, dealing with external conduct, and 
 guarding the peace and the purity of the Tribes. The other 
 five furnished the Religious hgilf of the law, with which 
 we have no present concern, save only that, in view of what 
 History has taught us of the condition of the wife in the 
 primitive ages, we are not surprised to find her classed 
 with other property, as the ox and the ass and the slaves. 
 
204 
 
 where the sin of covetousness is forbidden. 
 
 Of the five commandEients on the Civil side not one 
 was new to the thought of the People. Moses took old and 
 existing habits, ancient and, rooted ideas, founded in 
 natural necessities, or product of long experience, and set 
 them sharp and clear in the Tables of the Law. Before 
 that was done they were useful and customsury rules, having 
 no direct or known authorship, and enforced by no sanction 
 save the general opinion, but now were transformed into the 
 explicit and direct commands of the Sovereign authority, 
 and strengthened by a sanction full of compelling force. 
 Moses was wise about that. He knew what his people would 
 bear, and how idle and dangerous it was to legislate beyond 
 the capacity of the mass. Again and again we can see that 
 things *ich he did not like, things which he could not 
 justify, he failed to prohibit because of the hardness of 
 heart of his people: that is because the prohibition would 
 only breed resistance and bring the law into discredit. He 
 seems to have known, what we now know but do not always heed, 
 that law moves behind human relations and regulates what i-t 
 finds, and is certain to fail where it seeks to create them 
 in advance. That is the rock on which the rabid and vision- 
 ary reformer almost always splits. 
 
 In sketching the Mosaic system it will be prudent to 
 deal only with the Pentateuch as the original and authorized 
 
205 
 
 repository of the Hebrew law, and not suffer ourselves to 
 get lost and bewildered in that enormous and wonderful com- 
 laentary upon it which has since reigned in its place and 
 almost silenced its original, and which is known ae the 
 Talmud. As in Rome the few and compact sentences of the 
 Twelve Tablet}!^, by interpretation and explanation and an- 
 alogy, were expanded into countless volumes which no one 
 man could master: as with us the few and simple doctrines 
 of the Common Law have grovm into a mass of decisions pour- 
 ing over us like the drowning rain of the Deluge ; so the 
 Talmud, growing under the hands of Rabbinical ^^osition, 
 has spread the original law into what, as is said by one of 
 its devotees, would, if fully translated, amount to four 
 hundred volumes each of three hundred and sixty octavo 
 pages. It contains almost everything within the range of 
 the Hebrew knowledge, and in many directions is worth very 
 much more of Gentile study than has been given to it. We 
 may not venture into its mazes, but shall refer to it on 
 occasion for help and Explanation when the words of Moses 
 are doubtful or, puzzling; although even then we must re- 
 member that the law of the Talmud mixed with that of the 
 Pentateuch an outside strean: of oral tradition, dating at 
 least from the time of Ezra, and so liable to blind and 
 modify the original and written law. 
 
£06 
 
 We do not find in the comm^B issued by Moses traces 
 of anything like scientific order or arrangement. The law 
 of persons and that of things, the law of crimes and that 
 of land aile intermingled and <b<s>me and go in confused array 
 and with singular repetition through the quaint sentences' 
 of the text. The explanation of that is said to be that 
 it contains the product of three separate periods, far apart 
 in date, and not always agreeing with each other. To fol- 
 low its disorder would obstruct clearness of vision and of 
 thought, and so, searchlsng for some guide through the laby- 
 rinth, we have chosen fo follow what seems to be the natu- 
 ral order of growth, which requires that we begin with per- 
 sonal wrongs, and foremost among them with that which de- 
 stroys human life and which we call Homicide, The appro- 
 priate commandment is "Thou shalt not kill," brief and 
 imperative, but broad and unlimited. Of course it was never 
 interpreted or enforced in its wide and literal meaning. 
 The Israelite did not hesitate to kill the heathen in war, 
 or the assailant who menaced his life, or the criminal ad- 
 judged to be stoned. Moses himself began his career by 
 killing an Egyptian whom he found smiting a Hebrew, and 
 neither repented of the deed nor was rebuked for it by 
 Jehovah. Evidently the killing condemned was what we now 
 call murder or manslaughter, but extended beyond that to 
 
^ 
 
 I 
 
 cases of piare accident; for reasons already referred to but 
 which must again be taken into account . The old savage 
 rule of retaliation prevailed in full force among the Tribes 
 fleeing from servitude and halting at Sinai. "Life for life, 
 eye for eye, tooth for tooth, hand for hand, foot for foot, 
 burning for burning, wound for wound, stripe for stripe" 
 was declared in plentiful detail to be the rule of punish- 
 ment and justice. And that punishment in cases of homicide 
 was inflicted not by any public authority but by the hand 
 of private vengeance. Some one of the dead man's next of 
 kin became the avenger of blood, and was permitted and re- 
 quired to pursue and slay the offender. The later custom 
 of buying off the vengeeuice seems to have been known to 
 Moses, but met at his hands a stern disapproval. He de- 
 clares emphatically that no satisfaction shall be accepted 
 from the slayer as the equivalent of his forfeited life. 
 Blood SDr blood, — never money or cattle for blood, — was the 
 inexorable law. One consequence of this rule of revenge 
 was so disastrous that Moses had to parry it by scaie spe- 
 cial legislation. The avenger, hot and angry, took no ac- 
 count of motive, and pursued an accidental slayer as surely 
 as any other. There was neither tims nor temper for in- 
 quiry. The brother or friend lay dead with the blow of 
 HJoirder visible. That was enough. The chosen pursuer saw 
 
208 
 
 nothing else. It was necessary to find some measure of pro- 
 tection against the interested rage of a relative acting 
 both as judge and dxeoutdoner, and enforcing a rule at 
 least as old as the time of Noah. This was accomplished 
 by the institution of Cities of Refuge to which the slayer 
 could flee, and whose gates were shut against the Avenger. 
 There were six of these; thtee on each side of the Jordan. 
 But they protected only the accidental slayer. The Talmud 
 dravrs a thin distinction between what it calls a "fortuitous" 
 and an "accidental" killing, — each the result of chance and 
 without intention, but differing in degree. There is no 
 ground for that nicety of analysis in the sacred text. 
 Where the rule is first declared it is indeed blind: we do 
 not easily comprehend what is meant by the phrase "lie not 
 in wait but God deliver him into his hand", but later Moses 
 makes his meaning plain by giving us a concrete example. 
 He supposes the case of a man felling a tree, and the axe- 
 blade flying from the helve and killing a by-stander. That 
 mgty have been pure accident with no admixture of negligence: 
 and it was sucii an accidental slayer who was protected in 
 his refuge. But he must stay there. If caught outside he 
 might be killed with impunity. He must stay till the High 
 Priest should die. After that event he might ^lo back to 
 his home and live there unmolested. The reason and meaning 
 
309 
 
 of this provision it is difficult to discover. The rabbini- 
 cal explanations of the Talmud are various. One is that 
 the death of the High Priest was deemed to be in itself 
 an atomement. A better one is that the accession of a suc- 
 cessor, like the enthronement of a king, is usually attended 
 by a general amnesty. But this necessary rule for the pro- 
 tection of an accidental slayer brought with it a new diffi- 
 culty. The intentional slayer who laid in wait, sprang upon 
 his enemy from the hiding of an ambush, and who meant and in- 
 tended to kill, would be sure also to seek the Refuge. He 
 would ccae with a lie in his mouth as swiftly as the foot- 
 steps behind him, and unless some way should be devised of 
 ascertaining the truth, of separating guilt from misfortune, 
 the City would become a den of escaped murderers. The remedy 
 applied was an investigation by the Elders of the dead man's 
 city. They brought him there for what amounted to an inquest. 
 They examined witnesses, considered the proofs, ^veighed the 
 circumstances. If they found the killing acECidental they 
 took their prisoner back to his Refuge and left him there in 
 safety: if otherwise they handed him over to the avenger to 
 be killed. And thusjbhese Elders became in some sort a crimi- 
 nal court, of a rude type but effective for its purpose. 
 Probably they were the local fudges in every city and village. 
 We have already said how in the Teutonic Tribes, where the 
 
210 
 
 vengeance could be bought off, the settlement of the blood- 
 price and of the persons entitled to receive it necessazily 
 bred a tribunal for decision; and hdre we have the same thing 
 oK^ing into existence by a different route. But Moses went 
 further. We ourselves infer malice or murderous intention 
 from the use of a ddadly weapon. The Hebrew law did the 
 same thing. Moses said that where the death-blow was struck 
 by an instrument of iron, or by a stone, or by a hand-wea- 
 pon of wood the slayer should surely be put to death. The 
 inference of an intent to kill was drawn at once. And be- 
 yond that, where even the mortal blow came only from the 
 fist, if it was struck in enmity or hatred or when lying in 
 wait for the victim, again the act was murder and the life 
 of the criminal forfeited. In all these varied provisions 
 we can see the outline, dim and hazy but growing and per- 
 ceptible, of that felonious intent as s«k essential to the 
 crime of murder which permeates our own law and has become 
 a necessary element of the proof. 
 
 Sometimes however in the Hebrew experience as in our 
 own there is a murder which is undetected. The perpetrator 
 is unseen and leaves neither trace nor trail nor betraying 
 circumstance. Moses supposes such a case as a murder in 
 the fields. There is the dead body with the marks of vio- 
 lence upon it, — ^the wounds and blood and mangled death, — 
 but no track of the murderer. The procedure dictated by 
 
311 
 
 the law-giver was this. They measured the distance from the 
 spot of the murder to the adjacent cities. The Elders of 
 that which was nearest came out with a calf which had never 
 borne the yoke into a valley uncultivated and unreaped: 
 they there cut off the head of the calf and washed their 
 hands over it and formally protested that they had not slain 
 the dead man and did not know who had. This ceremony seems 
 to be useless and meaningless, but it is never safe to ac- 
 cuse Moses of that. We may give the explanation which has 
 formed in our own thought though as yet we have found only a 
 single authority for it. Evidently the ceremony was a sacri-^ 
 ficial oath vouching for the truth of the innocence asserted. 
 Elsewhere the act is described as an inquisition of blood, 
 which can only mean an inquiry into the killing; and so we 
 have come upon what in these days we call a Coroner's In- 
 quest. The elders of the nearest city were bound to inquire 
 into the unexplained death. If it is asked why those of 
 the nearest city by actual measure were selected we suggest 
 that it was probably to settle the jurisdiction, to prevent 
 an unseemly dispute between several adjacent cities as to 
 which should conduct the inquiry and certify the result. 
 Those elders thus were a sort of Coroner's jury. They viewed 
 the body, they made inquiry, they searched for the murderer. 
 If they failed to find him they gave their verdict to that 
 effect under the solemn forms of a sacrificial oath. Perhaps 
 
212 
 
 this Inquest 2iay have been the remote type of our own, and 
 yet we must not imagine it to have been the origin of our 
 Coroner and his official duties. He is indeed a very old 
 officer. Blacketone makes him as ancient as the sheriff 
 which would carry him back into Saxon times: but modern in- 
 vestigation locates him at about the close of the twelfth 
 century when he seems to have been created by statute and 
 described as keeper of the pleas of the crown. Yet hd had 
 other duties beyond that of gueurding the rolls, and held 
 inquests over an unexplained death; and so Mr. Gross car- 
 ries him back beyond the statute, and into the shadows. 
 The probable truth is that always after the Mosaic times 
 sQne inquiry by priest or governor or people was had when 
 a mysterious death was disclosed, but was subjected to no 
 control of a special officer until the Coroner was appointed 
 in 1194 and assigned to the performance of that duty among 
 others. 
 
 Following the prohibition of murder is that of theft. 
 Again the command is brief, but as broad and sweeping as it 
 is imperative. "Thou shalt not steal." The penalty at- 
 tached was called restitution, but was in truth that severe 
 retaliation which we have seen each man enforcing in his own 
 behalf when his person or his property was invaded, and which 
 was merely regulated and limited by the law. There was no 
 
213 
 
 officer specially appointed, to execute judgments, and if 
 sometimes the Judgds did it, in the main it was the office 
 
 and the duty of the person injured, except that where the 
 offense, as in case of idolatry, worked no specific injury 
 
 to anyone, the witnesses threw the stones and the people 
 
 joined in the killing. We are still in the region of Self- 
 
 Help. The Judgds merely legalized and regulated the revenge 
 
 of the individual or the fury of the mob. The possessions 
 
 of the Jews subject to laxceny and likely to tempt a thief 
 
 were few and simple. They consisted mainly of the herds of 
 
 horned cattle, the flocks of sheep, and gold and silver. 
 
 The penality for stealing either of these was specifically 
 
 fixed. In the case of horned cattle, the restitution was 
 
 to be five for one, in the case of sheep four for one, and 
 
 in that of gold and silver the principal taken and one fifth 
 
 in addition. At a later period and in the time of Samuel 
 
 there seems to have been one general rule that the thief 
 
 should restore seven fold. Observe now what this law did. 
 
 it found in force an approved habit of boundless retalia- 
 
 tion. The man robbed took back what he had lost and as 
 
 much more as he could find. The law simply recognized and 
 
 justified the habit, but put bounds to it, limited to a 
 
 reasonable but preventive penalty the extent of the reprisal. 
 
 In the event of the thief's inability to make the required 
 
 restitution he was to be sold as a slave. His body became 
 
 property for the purpose of reprisal. These provisions as 
 
214 
 
 to flocks and herds relate only to the case in which the 
 thing stolen is not recovered; that is when the thief has 
 sold or killed his plunder. If it is found in his hands so 
 as to be reclaimed the further restitution is two-fold. It 
 is obvious from the tenor of these provisions that the 
 original archaic idea still retained its hold which regarded 
 theft as simply a personal injury to the individual whose 
 property has been taken and in the nature of a trespass. 
 The later conception of it as a crime, an offense against 
 the State and subversive of the order and safety of Society, 
 had not aurrived. But heavier penalties attended those forms 
 of stealing which we now describe as burglary and kidnapping. 
 Moses ordains that the midnight thief caught breaking in 
 may be slain with impunity . There shall be no avenger of 
 blood for that killing. B^t if the sun be risen upon him, 
 that is if he breaks in by daylight, he shall not be killed 
 but shall make restitution. The Talmud justifies the kill- 
 ing at night by saying that the burglar certainly intends 
 to kill if he meets with resistance, slaying him is self- 
 defense; but draws the distinction that if the thief enters 
 by the regular way, that is by the door, it is not a break- 
 ing in. We hold that even lifting the latch is enough. If, 
 however, one steals a brother Hebrew and sells him the 
 penalty is death. That again is substantially the rule of 
 a life for a liife , The person kidnapped and sold into 
 
215 
 
 slavery is regarded as dead, and he is so practically^ji^ to 
 ^his kin and his tribe. 
 
 The next commandment is a prohibition of Adultery, 
 and had respect to the purity of the race and the legiti« 
 macy of descent. It is so intertwined with the rules of 
 marriage and divorce and the wrongs which our law describes 
 as rape and seduction, and brings before us so constantly 
 the character of the Hebrew family that we should study 
 them together and without effort to keep them separate. 
 The wrong prohibited was understood in a very narrow and 
 limited sense when measured by our modern notions of moral- 
 ity. In the main the commandment was aimed at the wife 
 and spared her lord and master. She must preserve her 
 purity and the undoubted paternity of her children, but he 
 was allowed to wander in a license checked only at "a 
 single point. He had as many wives as he wished; when he 
 grew tired of one he gavs her a bill of divorcement and 
 turned her away and chose another. He was the Mormon of 
 Canaan; for he allowed himself as many concubines as he 
 pleased, he brought them into his house, he kept them on 
 a level with his wives, and they scarcely regarded it as 
 a subject of complaint. In so doing he violated no law 
 human or divine. Probably this was one of the things that 
 Moses did not like. We may judge that, not from anything 
 that he said, but from what he did., and from the life that 
 
9 
 
 216 
 
 he lived. When he fled from Egypt and took refuge with a 
 Bedouin tribe in Midian he married Zippora one of the 
 daughters of the desert. He lived with her while she lived: 
 he married no other unless possibly after her death: there 
 was never a concubine in his tent. While he was forbidding 
 the Israelites from intermarrying with the idolatrous tribes 
 on the borders it must have been a little hard for him to 
 remember that he had done that very thing, and to bear the 
 taunts of his sifeter and of Aaron over the fact. A weaker 
 man would have divorced his alien wife and married one of 
 his own race. But Moses did not do that. He bore the sneers, 
 and kept the wife who was the mother of his children, and 
 was faithful to her alone. Undoubtedly this admirable man 
 hated polygamy and concubinage. But what was he to do about 
 it? The practice ran back through the whole Hebce-w Lineage. 
 The Fathers of his race, gathered in Heaven and basking in i 
 the radiance of Divinity, had all followed or endured the 
 custom, unwarned and unrebuked by Jehovah. Abraham took 
 Hagar for a half-wif e . Jacob had Leah and Rachel and at 
 least two concubines. Esau had three wives. And the 
 Hebrew life was veined all through with the evil habit. 
 Moses did what he could, — all that he dared, — and more than 
 we are doing to-day. Defining the offence prohibited as 
 one with a maxried woman he imposed the penalty of death 
 
217 
 
 on both. That otherwise he left the married man free was 
 a necessity of the time and of the race, but even that free- 
 dom he tried to regulate in the interest of those who be- 
 came subject to a master's control. He recognized the bond 
 of a betrothal. If a betrothed damsel be violated in the 
 city both ajre adjudged to death, on the hard theory as to 
 the woman that she may protect herself by an outcry if she 
 will, while if the offense be committed in the fields, 
 where, a cry for help would be unavailing, the man only was 
 condemned to death. If pxe maiden be not betrothed the 
 ravisher must make her his wife and pay fifty shekels of 
 silver to the father. The wrong of Seduction was regarded 
 as an injury to the father only, ver/ much as we treat it 
 to-day, and the wrong -doer was required to maxry the girl, 
 or, if the parents refused, to pay according to the dowry 
 of a virgin. But while the purity of the wife was guarded 
 by a penalty of extreme severity she herself was protected 
 against the jealousy and suspicion of her husband in a very 
 singular way; singular because it is the only instance in 
 the Mosaic law of a search for truth by means of an ordeal. 
 We shall see hereafter how common it became among early 
 races, when puzzled to ascertain the truth or determine 
 which of two disputants was in the right, to submit the 
 question to the decision of Deity by means of so.me ordeal 
 framed for the purpose. It was not like Moses to adopt so 
 
218 
 
 rude a remedy, and he probably found it ingrained in the cus- 
 toms of the people, and endured it because results were in 
 the power of the Priest. The accused wife, after a solemn 
 oath of innocence, drank of the bitter water in which the 
 dust of the floor had been mingled, in front of the altar, 
 and from the hands of the Priest, with a conviction that 
 if innocent the water would harm her not, but if guilty 
 would cause the severest physical suffering. Of course 
 the Priest who mixed the cup could really.- decide the case. 
 Moses also fixed the degrees of relationship within which 
 marriage was prohibited very much as we have them at present. 
 Where he got them., or how he divined their admitted wisdom 
 axe curious questions but beyond the scope of our purpose. 
 That the wife was obtained by purchase, save in cases where 
 she was part of the plunder of war, and so regarded as a 
 species of property , and more or less the subject and slave 
 of her master, is evident from many incidents along the 
 line of the sacred history. Specifically she was told that 
 her desire should be to her husband and he should rule over 
 her, and the tyrannical creed ran down the Jewish line until 
 it was voiced again by that sour Paul whom the modern 
 woman of the platform would delight to crucify. 
 
 The archaic rule which made the children absolutely 
 subordinate to the will of the father was reproduced in 
 the commandment "Honor thy father and thy mother" , but 
 
219 
 
 more clearly shown in the specif ic _lawe which Moses pror-.ul- 
 gated. "Fear every man his father and mother." "He that 
 curseth his father or his mother shall surely be put to 
 death," "He that sruiteth his father or mother shall surely 
 be put to death." "If a son be stubborn or rebellious, a 
 glutton or a drunkard" and the home discipline has failed 
 he shall be brought before the elders at the gate and "the 
 people shall stone him till he die." This terrible despotism 
 of the father over his children, enforced by stripes and 
 death, was not at all peculiar to the Hebrew fcimily. We 
 have seen already how naturally this authority began and 
 grew, and we shall find it again even in m.ore elaborate 
 codes and a prouder civiliafition. But there was one re- 
 deemdng feature. The blood of the children was never 
 tainted by a judgment against the father. That later doc- 
 trine of Attainder v/hich worked ctsrruption of blood and so 
 interrupted legal descent, and punished the child for the 
 sin of the parent had no place in the Hebrev/ law. On the 
 contrary Moses explicitly declared "the fathers shall not 
 be put to death for the children, nor the children for 'the 
 fathers but each shall be put to death for his own sin." 
 The rule was all the more remarkable when contrasted with the 
 declaration of Jehovah describing him.se If as "a jealous 
 God visiting the sins of the fathers upon the children even 
 to the third and fourth generation." The Civil side of the 
 
220 
 
 law was in this respect better 'than its Religious side. 
 
 We, pass now to wrongs affecting both the person and 
 the property of the individual, but which were less in de- 
 gree than those specified in the Commandxrients, and which may 
 be grouped under the general head of Trespass. We have al- 
 ready had occasion to say how Bailnient rested not at all on 
 Contract but on a duty to return the thing bailed, and how 
 that duty was absolute and grew out of the needs of early 
 procedure. There was some relaxation of that rule in the 
 Code of Moses. If one gave out cattle to keep for him, 
 that is to a gratuitous depositary, the latter was not 
 liable if the animals died or were hurt or driven away 
 secretly, no one seeing, on comdition that the bailee took 
 an oath of his own freedom from fault: but if they were 
 stolen the bailee was liable because he alone had a remedy 
 against the thief. If, instead of keeping the property 
 for the owner, the bailee had borrowed it for his own use 
 and it %as hurt or died, the owner not being present, the 
 borrower was liable for the return. Otherwise if the owner 
 be present because he can then prevent the loss in his own 
 interest if prevention is possible: but if the property be 
 hired and so the bailment is for the benefit of both parties 
 the loss by injury or death, without fault of the bailee, is 
 the loss of the owner. That form of Bailment known as the 
 Pledge prevailed among the Jews and Iv'oses regulated it. 
 
221 
 
 The pledgee is forbidden^ to take in pledge the upper and 
 the nether millstone, or to keep the outer garment pledged 
 beyond sun-down. The handinill in each family was used to 
 grind the corn of which bread was made, and the outer gar- 
 ment was the sole blanket of the peasant in the cold nights 
 of Palestine. The restrictions were intended to prevent 
 oppression of the poor, and had a further provision that 
 the pledgee should not enter the house of the pledgor but 
 take the pledge outside: the purpose being to make him ac- 
 cept the pledge promised, and not on seeing something bet-, 
 ter insist upon that. N^t there axe provisions, first, 
 •against a wilful, and then against a negligent trespasc. 
 If two men fight and one hurts another with his fist or a 
 stone and the latter does not die but recovers, the assail- 
 ant must pay for the sufferer's loss of time and the ex- 
 pense of this recovery. That is the equivalent cf our acticm 
 for assault and battery. If a man kills his slave outright 
 he shall be punished, but if the slave lives a day or two 
 the master shall be acquitted, for the slave "is hie money". 
 That is, the master has suffered loss enough by the unin- 
 tended death of his bondsman. But if the master knocks out 
 the slaveds eye or his tooth the latter goes free. If a 
 man turns his cattle into ^he field or vineyard of his neigh- 
 bor he shall restore an equal amount from the beat of his 
 own. The cases of negligence are very niuch like ours. If 
 

 a man had an ox which gored, another's slave, "pushed with 
 its horn" as the text has it , the owner was not liable un- 
 less the ox was wont to push with its horn, and the owner 
 knew it. We hoU the sar.e thing on the ground thekt where 
 the owner knows the animal to be vicious he is negligent in 
 failing to restrain it. But Moses takes a step further, fol- 
 lowing a very common archaic procedure. The ox is to be 
 killed. Retaliation runs against the dumb and unintelligent 
 brute. Whenever it gores another ox it is to be stoned. 
 The idea of resppnsibility body for body extended exien to 
 inanimate things. It is said that a statue at Athens which 
 fell upon a man was formally tried and condemned. But the 
 penalty imposed by Moses went beyond the stoning of the of- 
 fending animal. The owner, who knew the beast to be danger- 
 ous, and from whose lack of proper care and restraint the 
 death of a person had resulted, was himself condemned to 
 death, but might rainsom his life by a sum "laid upon it". 
 It is this provision of Exodus which Hume cites to sustain 
 his mistaken assertion that composition for murder prevailed 
 among the Jews. The^ case was not one f of m.urder. The 
 furious ox did the killing without the help and against the 
 will of the owner. His offense was that of negligence and 
 not of murder, and a composition for negligence was as natu- 
 ral and possible as one for theft which was always perr.iiss- 
 ible. The historian's authority fails to sustain his con- 
 
:23 
 
 Another case of negligence was where one digs a pit 
 and carelessly omits to cover it whereby the ox or ass of 
 his neighbor falls into it and is injured. A liability fol- 
 lowed which in sonie cases a modern court would enforce. If 
 a peasant kindles a fire so that it catches in the thorns 
 and spreads over the fields and crops of another he who 
 started iit the blaze must pay for the damage done to the 
 corn. If one msn's ox kills another's the rule was to sell 
 the live ox and divide the money and the dead ox. And then it 
 is enacted generally that for all manner of trespass of 
 animals, or the recovery of lost things, or conflicting 
 claims of ownershii-, the Judges shall decide and the defeat- 
 ed litigant shall pay double. 
 
 Leaving the law of personal rights and wrongs we 
 next draw attention to the land law of Moses. He meant 
 his tribes to be an agricultural people, and was taking 
 them where they would of necessity be tellers of the soil. 
 Looking forward to that ultimate home from his wandering in 
 the wilderness, with its quails and its manna, its grumb- 
 lings and discontent, he pictured his weary six hundred 
 thousand at last spread out over the fields of Canaan, feed- 
 ing their flocks and herds on the rich and plentiful past- 
 ures, and winning froi;. the soil its conn and wine: and then 
 framed for them our earliest type of an Agrarian law. He 
 never lived to see it in operation but died as the Jordan 
 
224 
 
 was reacEhed. There is no more pathetic scene in all History 
 than that of this patient old man looking from a mountain 
 top over the swell and the roll of the promised land, but 
 knowing that his hour had come, and saying a most earnest 
 and eloquent farewell. It is doubtful if his system for 
 the ownership of the soil was ever effectively put in 
 operation, and certain that it never was a success, but it 
 surprises us to see this grejg.bearded Patriarch unconsciously 
 blockling out for our later learning the estate for years 
 with reversion in fee. He directed the land to be divided 
 among the people by lot. Each head of a family had his 
 share, and that, — in strict accord with what we have seen 
 of early custom, — ^became the family inheritance and as such 
 was inalienable. But while the land might not be sold the 
 usufruct could be. This, under the old system in which 
 possession stood for ownership, would have ended in a per- 
 manefatlalie nation but for a provision peculiar to the Jewish 
 law and operating upon all lands except to a limited extent 
 the dwelling in a walled city. That was the year of Jubilee 
 occurring every fiftieth year. When that arrived all trans- 
 fers of the usufruct ended and thejf heritage reverted, un- 
 incumbered, to the original family. Every transfer of 
 land, therefore, becarr.e merely the sale of an estate for 
 years, barred by and ending with the year of Jubilee. There 
 might also be redemption in the interim, which made the 
 
225 
 
 transfer a mortgage, and that not only by the vendor-downer 
 but by his nearest relation, who might in that manner regain 
 for the family its original heritage. Every seventh year 
 the land was to lie fallow. It was to rest as God rested 
 on the seventji day. In that year what grew naturally was 
 for everybody, and was to be helped by a provident storing 
 of surplus in the busy years. The same thing was ordained 
 for the Year of Jubilee, and since seven times seven years 
 would bring the forty-ninth year there might be two suc- 
 ceeding yesirs of rest but for the fact that the year began 
 in the autumn harvest and the two became coincident. In- 
 evitably to perfect this system it was necessary to fix 
 the rules of Inheritance. The land descended to the sons, 
 the eldest taking a double portion. If there were no sons 
 the daughters inherited. If no children then the brothers; 
 and if none then the uncles smd after them the nearest of 
 kisi kin. This inheritance of the brother in defaMt of 
 children throws a charitable light upon that abused rule of 
 Moses that such surviving brother should treat as a wife 
 the widow of the brother who died childless and raise up 
 issue in his name, for such issue would tsike the original 
 share of the deceased and keep the heritage and save a home 
 and support for the widow, who might quite naturally resent 
 the selfishness of his refusal in the bitter and contemp- 
 tuous manner described. Interwoven with this land law was 
 much of kindly provision. The slave of Hebrew lineage 
 
236 
 
 became free in the seventh year and the wife and children 
 who went into siiavery with him. If the wife was given him by 
 his master he went out alone. If because he loveA her and 
 their children he chose to share their servitude his ear 
 was bored through with an awl and he became a slave for 
 life. If an alien bought a Hebrew the latter could redeem 
 himself or be redeemed by hie kin. The poor could glean in 
 the fields as did Ruth in the simple and beautiful story 
 which bears her name. The laborer in the harvest could ea± 
 his fill of his employer's fruit, but could Qfearry nothing 
 away. JEven now our workmen eat our aj^ples and grapes 
 without feeling at all like thieves, and yet little conscious 
 of the origin of the shadowy right. The very ox xould not 
 be Bnixxx muzaied "that treadeth out the corn." What wonder 
 that, under a system like this th4o -y all landmsirks were 
 held sacred and thdir removal forbidden, and that the day 
 of deliverance from poverty and m.isf ortune , from improvi- 
 dence and disgrace, should be ushered in with the sound 
 of trumpets, the flutter of flags and the shouting of Tribes! 
 
 There remains to us for study the Police Power ex- 
 ercised by Moses, and the method and theory of Justice 
 which he adopted. The first was remarkable for its scope 
 and range. It mastered almost the whole detail of daily 
 life, from the food permitted to be eaten to the triirming 
 of the bread. It indicated the characteristics of a paternal 
 
227 
 
 government, and has been roxmdly denounced for the trivial 
 nature of its commands, and its impertinent and officious 
 invasion of the privacy of the citizen. It is somewhat 
 open to that objection, though very much less than is com- 
 monly supposed. One group of the rules were clearly health 
 laws. The removal of lepers from the camp and the scrap- 
 ing or destruction f of their houses; eind the distinction 
 of food between the clean and the unclean were of this 
 character; carried to excess or mistaken in the motive facts 
 perhaps, but justified |fy the end sought to be attained. 
 Another group were aimed at the extirpation of idolatry, 
 an offense not merely on the religious side but amounting 
 to treason against Jehovah as the civil Governor. The 
 learned Maimonides has patiently developed the facts that 
 speoial modes of trimming the halt and beard; seething a 
 kid in its mother's milk; cutting and marking the flesh; 
 wearing garments of mingled linen and woolen; sowing mixed 
 seeds; exchange of clothing of the sexes; worshipping in 
 groves; dealing with witches only fit to be killed; and the 
 like, were idolatrous customs of the heathen nations which 
 were forbidden for that reason, and were serious things in 
 a race which could promptly burn infants before a brazen 
 calf when Moses stayed with Jehovah somewhat too long. 
 Another group were economic rules, such as forbidding usury; 
 
228 
 
 paying wages on the day when earned; putting protective 
 ■battlements on the houses; marrying within the tribe of 
 those having an inheritance; releasing all debts in the 
 seventh year: using just weights and measures; and perhaps 
 some others. A separate group had charity and benevolence 
 for an object. Letting the old bird go when taking the 
 nest; refusing to deliver up the fugitive slave; suffering 
 women captives to marry; neither vezing strangers nor af- 
 flicting the widow and fatherless; permitting the priest 
 to take a virgin for his wife; and the newly married man to 
 stay home from the war; returning stray cattle; and others 
 to which we have referred in a different connection, were 
 of this class. We need not be surprised at the wide -range d 
 permission and prohibition. It is characteristic of that 
 early time when the ixxs. lines between law and morality and 
 religion were undrawn, and which yet may find its match in 
 our own day. 
 
 And what about the Justice of the Jesrv«"^, Moses him- 
 self was the Supreme JudgeL and for a time seems to have 
 been the only one. He sat at the gate, deciding all quar- 
 rels, and worn down with the duty, till, at the suggestion 
 of Jethro, he appointed Judges over tens, over fifties, over 
 hundreds, and over thousands, reserving to himself only the 
 more important and difficult cases. There is nothing in 
 the text of the sacred books to warrant the supposition 
 
229 
 
 that an appeal lay from the lesser courts to the higher, 
 and yet, as cases were reserved for Moses, it is natural 
 to believe that they were so reserved for the superior 
 tribunals, or that the latter on a proper application drew 
 to themselves the jurisdiction. The precise place of the 
 Elders in this system it is not easy to determine. The 
 Talmud seems to regard them as the suprem.e tribunal, and 
 after the death of Moses they may have become so. The trial 
 was public and at the City gate. The Judges were warned 
 not to favor either the poor or the rich, not accept gifts 
 because only disguised bribes, to be very careful where the 
 penalty was death, and to convict no man on the testimony of 
 a single witness. According to the Talmud at least two 
 witnesses must testify, each to all the elements of the 
 crime and not severally to separate parts of it. It is 
 quite probable from the connection in which tale-bearers 
 are denounced that hearsay evidence was excluded. False 
 witness against one's neighbor was forbidden with a solem- 
 nity which gave it a place in the Decalogue, and the per- 
 jurer was punished on strict principles of retaliation. He 
 was made to suffer the exact evil which by his false oath 
 he sought to inflict on another. The Judges were charged 
 in words which might well stand in letters of gold over 
 every temple of Justice: "Ye shall not respect persons 
 
230 
 
 in judgment, but ye shall hear the small as well as the 
 great: ye shall not be afraid of the face of man, for the 
 judgment is God's." 
 
 Finally: there is one more word to be said, born of 
 our review of the Hebrew lav/ and, of the destructive criti- 
 cism which makes of Moses a myth and a delusion. Somebody 
 framed that law, so wonderful for its time: somebody temp- 
 ered even its coarser features with love to God and a vein 
 of charity for menj somebody made of it a wide forward leap 
 of civilization. Describe hin by what name you will: he 
 is there. We choose to call him Moses and rank him among 
 the leaders of mankind. 
 
231 
 
 VIII. 
 
 THE LAWS OF IffiNU. 
 
 Turning, as now we must, from the Semitic to the 
 Aryan race, we find, ourselves in a complete change of 
 atmosjihere . The law of the Hindu, like that of Moses, was 
 product of the priesthood, but so founded on a different 
 conception of Deity and of the relations of men to each 
 other as to diverge radically from the Hebrew code. The 
 government which the latter instituted and sought to regu- 
 late, although Theocratic in form was largely Democratic 
 in principle, and recognized in almost every direction the 
 civil equality of the citizens: while the Indian law was 
 based upon a rigid system of Caste which wsirped and modi- 
 fied everything that it touched, amd: cut the people into 
 
 * 
 
 classes dcminant and despotic in the upper strata auid de- 
 graded and servile in the lower . How this came about should 
 be said very briefly in order better to conprehend the Hindu 
 theory of law- Two swarms of the Aryan race, — ^the fair facscd 
 
 men, — seem to have poured out of their unknown hive in 
 
 one 
 central Asia;x«Ki moving west and planting what proved to be 
 
 the seeds of civilization in Europe; the other drifting 
 
 east and finding its way through the passes of the Himalayas 
 
 and over their foot-hills out into the plains of India and 
 
232 
 
 and valleys of the Ganges. There -fchey caiae in collision 
 with the aboriginal races, — the dark faced men,— broken up 
 into multitudinous tribes who proved unable to stay the in- 
 vasion, and, when not destroyed, became subject to their 
 new masters. The victors quite naturally developed into 
 two ruling classes, the Priests or Brahmen who guided the 
 religion of the swarm, and the Soldiers who did its fight- 
 ing. These utterly despised the aboriginal tribes whom they 
 grouped under the name of Sudnas, and when there grew up a 
 class of traders, buying and selling and to some ei^ent 
 beginning commerce, the Brahmin priest and the Rajput soldier 
 looked down also upon them and raaked them in a class only 
 above the Sudras. Thre^^ three upper classes called them- 
 selves the twice-born men and refused association with 
 those of the lower grade. The lijjes of social cleavage 
 grew daily deeper and more clearly defined until the sepa- 
 ration became the one prevailing cfegiracteristic of the 
 Hindu life. The religion of the invaders was that nature 
 worship which we have heretofore described, and which, 
 after many changes, enthroned in the Indian heaven a divine 
 trinity worshipped as Brahma, Vishnu, and Siva, surrounded 
 however by a host of inferior deities. Of this trinity 
 the first was creator, the second preserver, and the third 
 destroyer; and at the bottom of their creed and largely its 
 
235 
 
 motive force was a belief in the repeated incarnation of 
 their Gods and the transmigration of sould. This Indian 
 race, thus made up of diverse and complex elements and 
 clinging with a firm and resolute hold to their ancient 
 customs, the England of the eighteenth century first con- 
 quered and then essayed to govern. In assuming the early 
 control the new masters put the Judiciary in the able and 
 discreet hands of Sir Williajii Jones. He became a Judge of 
 the Indian court established in Bengal, and irnder a law which 
 reserved to the natives the application of their own fixed 
 customs and rules of inherita.nce . Cf course it was imposs- 
 ible for him to move a step without the assistance of the 
 Pundits and Moolvies who were professors of the Hindu and 
 Mohammedan law, and he soon found himself very much at 
 their mercy, and became suspicious that they shiped their 
 knowledge to effect desired results not always just or fair. 
 He therefore determined to investigate for himself, and so 
 gathered about him a company of Hindu teachere and assist- 
 ants who taught hin the Sanskrit tongue. Fron: them, as he 
 g'igiined their confidence, he slowly discovered that there 
 were in existence religious and juristic i-oevAS twice as old 
 as the laws cf Solom and the twelve tables of Rome, and 
 perhaps even older than the books of the Pentateuch. The 
 discovery of this Sanskrit Code aroused a very great inter- 
 est. Sir Williaci Jones fixed its origin at 1S80 before 
 
254 
 
 Christ or at a distance from us of over three thousand 
 years. His information carae from his Hindu teachers, and it 
 doubtless represented the current tradition and belief of 
 the race, but in addition he made an elaborate study of the 
 question and supported his conclusion v/ith, an argument quite 
 difficult to answer. But nothing in these days goes un- 
 challenged, and modern criticism, which is shattering all 
 our idols, has ventured to lessen the age of the Code of 
 lAenu. Schlegel puts it one thousand years before Christ, 
 Elphinstone nine hundred, Williams five hundred, Muller 
 two hundred, and then comes Br. Burnell locating it four 
 hundred years after Christ. We cannot manage these szlzIk 
 antiquarians: but the older origin as to the great body of 
 the Code, seems to be the most probable. 
 
 The Sxx^ text of this venerable and curious Poem has 
 been carefully translated for us so as to separate the 
 original from the gloss or comriient which seeks to ^plain 
 it. As is usual in such cases it has been enormously ex- 
 panded by a multitude of commentators who have built up 
 from it and around it a very difficult and coomplicated 
 system. To one or more of these it may be useful to recur 
 for the solution of difficulties, but we must not thereby 
 be diverted from the study fo the Code itself. It m^st be 
 admitted at the outset that it seems to be an anomaly. 
 
255 
 
 When we search for a sovereign authority from which it 
 emanated we are obliged to confess that at first sight it 
 discloses none of a civil or governruental character, and 
 rests its right to obedience substantially upon a divine 
 coiiirriand. It does quite plainly contemplate the presence 
 of a human ruler, for it describes the king and his adminis- 
 trative council, and yet not as creators of the law but 
 simply as subordinate instrumentalities for its enforcse- 
 ment. In the main it is ethical add religious, but it in- 
 vades the field of law in singular fashion, and adds only 
 to the command $ of Brahma the further authority cf ancient 
 custom. It is likely to prove one of those puzzles of which 
 India is full, and which led Maine in his study of the Hindu 
 village communities to question the prevailing definitions 
 of law. We must state the facts fairly, as we find them, 
 without seeking to wrest or divert them in aid of any pre- 
 conceived theoryl 
 
 The Poem opens dramatically. Brahma had created 
 inferior Deities among whom was Menu, "the secondary framer 
 of the visible universe." He in turn had made ten lords of 
 created beings, and these, described as "holy sages," ap- 
 proach their maker to learn from hiru the sacred laws. They 
 find him reclining in a rapt revery with his attention 
 fixed on God. They salute him as "sovereign ruler" and 
 
256 
 
 devoutly present their request. They make one think of 
 Moses seeking the law from Jehovah. Menu gravely returns 
 their salutation, and tells theni first hov; the universe was 
 created. He says that in the beginning it "existed only in 
 darkness, imperceptible, undefinable, undiscoverable , undis- 
 covered, as if it were wholly immersed in sleep." Again we 
 are reminded of the opening of Genesis. "The eetrth was with- 
 out form, and void, and darkness was on the face of the deep." 
 Menu proceeds to say that "the self-e^feisting power", "whom 
 the mind alone can perceive", "who exists from eternity", 
 "first with a thought created the waters and placed in it a 
 productive seed." Moses says "the spirit (f God moved upon 
 the face of the waters." Then Menu continues: "that seed 
 became an egg, bright as gold, blaaing like the luminary 
 with a thousand beaxr.s, and in that egg he was born, himself, 
 Brahma, the great forefather of all spirits." He "was 
 named Naragana or moving on the waters." There we have 
 the exact Mosaic expression. The Poem adds: "In that egg 
 the great power sat inactive a whole year at the close of 
 which by his thought alone he claused the egg to divide itself, 
 and from its two divisions he framed the heaven above and 
 the earth beneath j in the raidst the subtil ether, the eight 
 regions and the permanent receptacle of waters." Genesis 
 describes the separation of the waters from the waters by 
 
237 
 
 means of the firmament with the heaven above and the dry- 
 land beneath. Menu then tells of the creation of Mind, 
 "drawn out of the Supreme souls, unperceived by sense, im- 
 material, and consciousness the internal monitor, the ruler." 
 The Hebrew revelator, sketching the making of man says "God 
 breathed into him the breath of life." The Hindu sovereign 
 ruler further describee the swinging of the stars and planets 
 in the sky , the coming of vegetable and animal life, and 
 the naming of the animals. As we reflect on this pargllel- 
 isffi of account it is hardly possible to avoid the suspicion 
 that the Hindu story cam-e from the Hebrew, or that both had 
 a common origin far back in the early ages. But that is 
 not the matter which interests us nowl It is another infer- 
 ence that, in a sovereign or go ve r nm.e nt al aspect. Menu was 
 the Hindu Moses, and that he and Brahm.a stood to the Indian 
 tribes in their thought and bellief very much as did Moses 
 and Jehovah to the camps of Israel: except that the Hebrew 
 patriarch was a hiiman governor and Judge and the Hindu sov- 
 ereign rulerlseems to have been a secondary Deity. That ex- 
 ception, however, is for us an important difference and must 
 be fairly measured. Menu turned the sages over to his son 
 Brighu, who had been taught the whole divine Code so that he 
 could repeat it without omission: and he begins with the 
 singular statement that from Menu, whom he nanes Swayambhura, 
 
258 
 
 came six descendants, other Menus, each giving birth to a 
 race of his own, all exalted in dignity and marvellous 
 in power, and that these seven have produced and sustained 
 the whole world of stationairy and moving beings "each in his 
 own Antara or period of his reign." We might naturally sus- 
 pect that this astonishing seven constituted a line of earth- 
 ly kings but for two further facts. The descended s€x seem 
 to have been regarded as Regents of the Heavenly University, 
 which was a very suitable place for them, and they lived 
 too long to be regarded as mortal. The length of each one's 
 Age is said to have been seventy-one times twelve thousand 
 or 842,000 years, and a day of Brahma is put at twelve 
 million years. That asserted fact adds some probability 
 to the construction of Genesis which makes the word day, in 
 the Mosaic account of the Creation, stand for a long and 
 indefinite sweep of years. And so it must still be conceded 
 that, on the face of the Code and within its own pretensions, 
 the only sovereign in sight, capable of making it and as- 
 sumed to have made it, is of Divine and not of human origin. 
 But, outside of its own theory, it is quite certain that the 
 Brahmen made it, and one only needs to see how utterly they 
 abscrb its pages and how carefully they buttress their own 
 power and authority to be sure of that. They begin their 
 glory at the Creation. Menu is made to say that the Deity 
 
239 
 
 souSsxisixsayxtfeactxifeK created the Brahmin frcm his mouth, the 
 Chsatriya or military class from his arm, the Vaisyas or 
 commerciaL class from his thigh, and the Sudras from his 
 foot: that the duty of the first is to read and meditate 
 upon the Veda, to make the sacrifices and oblations to the 
 Deities and to dead ancestors, and to teach the youth the 
 doctrines of Brahma: that the mission of the second is 
 to fight the battles of the tribe and guard and protect the 
 votaries of the sacred religion: that of the third to culti- 
 vate the soil, to create and improve the arts, to buy and 
 sell in trade and commerce, and accumulate wealth: of the 
 fourth, to wait upon the three upper classes with dutiful 
 submission, to do the hard and menial work of the race, to 
 be the "hewers of wood and drawers of water," patiently 
 enduring the contempt of their superiors. It was at this 
 point, obviously, that a purely religious Code began to in- 
 vade the region of Civil duty and obligation, for it fixed 
 the status of the people in their orderly and economical re- 
 lations to each other, and so became bound to pursue and 
 regulate those relations in a detail not at slLI religious. 
 The two upper. classes were Wholly non-producing and neces- 
 sarily to be supported and maintained by the two lower. The 
 Brahmin was a begger ,~protoi5ype of the mendicant friar who 
 degenerated in Europe into rags and vermin. But he was no 
 common tran:p. He was a lordly beggar. It was a virtue to 
 
240 
 
 give to him. It was a deadly peril to refuse. Menu had 
 more than twenty separate and distinct hells , fitted out 
 with ingenious implements of torture and manned with a 
 Satanic assortment of imps, which would have delighted a 
 priest of the Inquisition or a sour Csivinist grunting 
 German gutterals. Into one of the worst of these convenient 
 hells went with a plunge the wretch who refused to feed a 
 Brahmin: for the Code said fo the latter, "when a Brahmin 
 springs to light he is born above the world, the chief of 
 all creatures, assigned to guard the treasury of duties, 
 religious and civil. Whatever exists in the Universe is 
 all in effect the wealth of the Brahmin, since he is KSJsli 
 entitled to it all by his prim.ogeniture and eminence of birth." 
 He is called "the chief of creation", "the giver of spiritual 
 birth", and so is the second father of the twice-born man, 
 and "should be treated with more respect than the prince." 
 The whole Code is full of the glory and wisdom of the 
 ^on<^rful creature. But there can be no successful begging 
 unless there is wealth from which giving can come, and so 
 Menu yturns to the two lower classes as the source of supply. 
 Necessarily they must be controlled and governed, and made 
 to keep and fill their assigned places in the system; and so 
 Menu invades the realm of Civil duty and proceeds to enact 
 Civil law. 
 
241 
 
 But he seems to have comprehended the inevitable 
 necessities of such lav/, for he proceeds at once to install 
 a Sovereign whom he calls "the King", and to arm hini with 
 a sanction which he describes as "punishment." In other 
 words he sets up promptly the framework of our modern 
 definition. Of coxirse, as a fact, there were many kings, 
 and m.any communities in which the royal duty was vested 
 either in the house -father or the village council. There 
 were Rajahs by the score and heunlets numerous, but the 
 sovereignty, the governmental control in each case was 
 generalized in the Code under the one expression, "the 
 King." This is how Menu describes him. Composed of psirti- 
 cles drawn from the chief gttardian deities "he surpasses 
 all m-ortals in glory; like the sun he burns eyes and hearts, 
 he is fire and air ; he both sun and moon; he the God of 
 criminal justice; he the genius of wealth; he the regent of 
 waters; he the lord of the firmament; the perfect essence 
 of majesty; by whose favor abiandanee/ rises on her lotos; 
 in whose valor dwells -conquest, in whose anger deathl " 
 We can see in this description., carrying the meaning and 
 idea of sovereignty the" traces of the poetic imagery even 
 through the cold secerity of the prose translation. 
 
 But beyond his majesty and grandeur and his leader- 
 ship ih war he was clothed with the prerogative and duty 
 of punishment. He was to enforce by suitable peneaties. 
 
242 
 
 but with fairness and justice, the sacred laws provided 
 for him, and do that with unflinching sternness and severity, 
 except that he was to be lenient to the Brahmen. Of course. 
 They took precious care of their very respectable selves. 
 The King is charged to "prepare a just compensation for the 
 good and a just punishment for the bad": and then it is 
 added, "Punishment is an active ruler; he is the true mana- 
 ger of public affairs; he is the dispenser of laws; and 
 wise men call]|f him the sponsor of all the four orders for 
 the discharge of their several duties. Punishment governs 
 all mankind; punishment alone preserves them; punishment 
 wakes while their guards are asleep; the wise consider 
 punishment as the perfection of justice." In addition to 
 arming the king with this authority the Code widely extended 
 the domain of the law to be enforced, by specifically in- 
 cluding in it, and as an integral part of it, such rules 
 of conduct as had come down from antiquity and were sanctioned 
 by ancient custom, provided only that they were not incon- 
 sistent with the Divine law as promulgated. In no other 
 race is there disclosed such a persistent confidence in what 
 is old and traditional and ancestral, or an award to it of 
 such marvellous authority for that reason alone. We are 
 not surprised to find this characteristic holding a promi- 
 nent place in the priestly code. Menu says: "Immemorial 
 
245 
 
 oust on is transcendent law, approved in the sacred scripture 
 and in the Codes of Divine legislators. Let every man there- 
 fore of the three principad classes, who has a due reverence 
 for the supreme spirit which dwells in him, diligently and 
 constantly observe irmnemorial custom. A man of the priestly 
 military or commercial class who deviates from immemorial 
 usage tastes not the fruit of the Veda, but by an exact ob- 
 servance of it he gathers that fruit in perfection. Thus 
 have holy sages, well knowing that law is grounded on im- 
 memorial custom, embraced as the root of all piety good 
 usages, long established." 
 
 Seme very interesting consequences resulted from this 
 wholesale legislation. It was inevitable that the king 
 should be called upon to determine in his judicial character 
 what were in truth these immemoristl custqins, what was their 
 true meaning and scope, and which were and were not consis- 
 tent with the law of Menu. In that process Royalty would 
 more or less be maJcing law. The Anglo-Indian courts have 
 been doing that for a century. But too much liberty in that 
 direction did not suit the Brahmen. There was danger that 
 it might interfere with the very snug and comfortable ar- 
 rangements which they had planned for themselves, and there- 
 fore they proceeded to sweep the whole field of legislation 
 on their own account, and leave to the king only the duty 
 
244 
 
 and office of executioner. In studying what they decreed 
 we shall follow in the main the order adopted in reviewing 
 the Mosaic Code for greater convenience of comparison. 
 
 That requires us to begin with the very conmion wrongs 
 of Murder and Theft. The law of the first is confusing 
 and contradictory. It is said generally that the highest 
 crime on earth is to kill a Brahmin: but no punishment is 
 thereupon indicated at human ha^^^., One who merely assaults 
 him gets a hundred years in a special and particular hell. 
 One who strikes him undergoes twenty-one transmigrations 
 into the brutes. And one who sheds his blood suffers this 
 penalty: "As many particles of dust as the blood shall roll 
 up from the ground for so many years shall the shedder of tfc 
 that blood be mangled by other senimals in his n*kt birth." 
 This however is on the religious side of the law. On the 
 civil side it is first said that those who kill woinen, priest^ 
 or children the king shall put to death. So much we can 
 understand, but further on comes trouble. We find this 
 provision: "The slayer of a priest, a soldier or merchant 
 drinking arak, or a priest drinking ara^, mead or runuj, he 
 who steals the gold of a priest, and he who violates the 
 bed of his father, are all respectively offenders in the 
 highest degree." But, beyond lowering a murder to the 
 level of drunkeness or theft, there is contradiction about 
 the penalty. First it is said that the king shall irj"lict 
 
245 
 
 corporal punishiuent and a fine; and later, that offenders 
 who had murdered a priest should have branded on the fore- 
 head with a hot iron the figure of a headless corpse: and 
 it is added, "with none to eat with them, with none to sacri- 
 fice with them, with none to read with them, with none to 
 be allied by marriage to them, abject and excluded from all 
 social duties, let them wander over the earth." This re- 
 calls the tragedy of Cain upon whom God put a mark, and 
 turned him out as ^4 fugitive add vagabond on the eairth. 
 But still it is the murder of a priest, and not murder gen- 
 erally, which is civilly punished. And that remains the 
 fact unless a further rule, apparently limited, can be ap- 
 plied broadly. It reads thus: "For crimes ty a priest the 
 middle fine shall be set on him. But men of the other 
 classes who have committed those crimes shall be stripped 
 of all their possessions, and if their offense was pre- 
 meditated shall be corporally or even capitally punished." 
 What is meant by the phrase "those crimes" is open to con- 
 jecture. Justifiable homicide, and that occurring as the 
 result of negligence, are described. One may kill when ob- 
 structed in the performance of duty, in his own defense, in 
 defense of a woman, or of a Brahmin. "Fury recoils^ fury" 
 is the applied maxim. For a negligent killing a fine is 
 imposed equal to that for theft. On the whole the Code 
 
246 
 
 impresses us with the conviction that human life among the 
 Hindus was much less valuable and sacred than among the 
 Hebrew§; that it rarely brought with it the penalty of 
 death; that the measure of punishment was almost wholly in 
 the discretion of the king; and even that could be gener- 
 ally avoided under the system of expiation and penance which 
 washed out almost every offense, and yielded power and 
 plunder to the priesthood. Two things, however, are 
 developed which are of interest to our investigation. These 
 are so far no traces of the rule of retaliation; there is 
 no tracl: of the avenger of blood; and, instead of Self- 
 help and the redress of the individual injured, murder is 
 punished by the State; and when the penalty is death the 
 executioner is chosen from the lowest and most abject of 
 the mixed castes, who acts as the agent of the king. Mnrrder 
 has ceased to be merely a trespass and has becone a crime. 
 We have seen that the penalty sometimes imposed was 
 a fine. That is to meet us so often as to require a pre- 
 liminary explanation. We find it on almost every page 
 ordained at a fixed amount of the money of the time. That 
 money is regulated and described in detail. This is what 
 the law-giver says: "The very small mote which may be 
 discerned in a sunbeam passing through a lattice is the 
 least visible quatiity. Sight of these are supposed to 
 
247 
 
 be equal in weight to one minute poppy seed: three of those 
 are equal to one black mustard seed; and three of those to 
 one white mustard seed. Six white mustard seeds are equal 
 to a middle sized barley corn; three such barley corns to one 
 ractica; and eighty racticas of copper are called a pana « " 
 The fines imposed are measured by these panas, and are of 
 three sorts. The lowest amercement is 250, the mean or 
 middle one 500, and the highest one thousand. They were 
 of course payable to the kingv 
 
 We may turn now to the crime of theft. The usual 
 penalty was restitution and a fine. The theft of common 
 articles of use, such as cotton, leather, and horn, and 
 milk, honey, and oil, is punished with a fine equal to 
 double the value f of the thing stolen. If that bg^the rope 
 or bucket of a well the fine is one masha of gold. For 
 stealing flowers fruit or S^egetables from a field enclosed 
 by a hedge the penalty is five racticas of gold or silver, 
 8HS but if from a field unenclosed fifty panas . But for 
 some thefts, deemed more vicious, a corporal punishment is 
 decreed. That is, where the theft is of more than ten cui:i- 
 bhas of grain or comanodities usually sold by weight, or more 
 than a hundred head of cattle, or gold and silver or costly 
 apparel. Where the value is more than fifty p_alas the 
 thief's hand is amputated; if less than that a fine is im- 
 posed of eleven times the value. Practically this is our 
 
 anCi petit larceny. For stealing 
 
248 
 
 the cattle of a priest the offender loses half of one foot; 
 but for stealing the gold of that saintly beggar the thief 
 must runWstily to the king, with hair flying and an iron 
 mace in his hands, and saying "I did it", and the king is 
 to strike him with the mace. Of course, since tha inevit- 
 able Brahmin is standing by to guide the royal justice, the 
 blow is likely to kill. For stealing "men of high birth, 
 women above all and precious gems" the penalty is death; 
 but for the theft of large beasts such as camels or ele- 
 phants or weapons or medicines the punishment is in the 
 discretion of the king. If the taking be violent and in 
 sight of the owner that is robbery. The fine of a Sudra 
 is eight fold, that of a trader sixteen fold, that of a 
 soldier thirty-two fold and that of a Brahmin sixty-four 
 fold. We are amazed at the concession that even that 
 dignitsiry may possibly steal. Later it is added as to rob- 
 bers who breedc a wall or partition and commit theft in the 
 night that their hands are to be lopped off and themselves 
 to be fised on sharp stakes. 
 
 Beyond murder and theft there are fines for gaming, 
 either with dice or fighting animals; for intemperance 
 which is continually and sternly reprobatedj for slander 
 and defamation, and for assault and battery. It is the 
 Sudra always who suffers most. While hin superiors are 
 
249 
 
 only finecL4 he, if he reviles them, has his tongue slit; 
 if he abuses their classes has an iron style ten fingers 
 long and heated red hot thrust in his mouth; if he pre- 
 sumes to give thera advice has melted lead poured in his 
 ears. There are in this connection indications of the sur- 
 vival of the archaic rule of retaliation, and of that ans- 
 wering, body for body, which we have found so prevalent in 
 the early society. Thus: "With whatever member a low- 
 born man shall assault or hurt his superior even that mem- 
 ber must be slit. He who raises his hand or a staff against 
 another shall have his hand cut, and he isho kicks another 
 in his wrath shall have an incision made in his foot." If 
 a Sudra sits on the same seat with a Brahmin he is gashed 
 in the buttocks; if the insolent wretch spits on him his 
 lips are cut off; if he takes him by the hair or the beard 
 his hands are to be mangled. And yet this sort of retalia- 
 tion was no longer the angry revenge of the individual, but 
 the act of the State punishing a Crime. 
 
 We pass now to the subject of marriage and the re- 
 lations of the sexes. The early Hindu was a polygamist , 
 but his first wife was reqiired to be of his own class, and 
 she along could rule the household and join in the ances- 
 tral worship. There were eight forms of marriage, important 
 only because seme of them, which are denounced as base, are 
 our offenses of rape and seduction. The soldier could 
 seize the woman whose kindred he had slain and she was his 
 
250 
 
 wife by capture. The youth could debauch a girl when asleep 
 or stupified by a drug, or with her volimtary consent, and 
 each of these Menu catalogues as a marriage, while at' the 
 same time etigmatiaing them as disreputable. Divorce seems 
 to have been as easy as in Israel. The wife could be super- 
 seded even for the misfortune of being barren. Her condi- 
 tion was that of strict subordination to "^e husband. Menu 
 says she should be treated kindly and be emiused with orna- 
 ments and stuffs, but at the sarae time remain under a life- 
 long gusLTdianship, and he ordains: "day and night must 
 women be held by their protectors in a state of dependence: 
 a woman is never fit for independence." And yet he has a 
 wholesome dread of their power since he warns the youth 
 that "a female is able to draw from the right path in this 
 life not a foot only but even a sage." If the wife thus 
 gx;iarded proves unfaithful she is to be eaten by the dogs, 
 and the partner in her guilt, fastened to an iron bedstead, 
 is to be roasted to death by a fire built beneath. The 
 good wife goes straight to Heaven, the soulX of a bad one 
 migrates into a jackal. No nuptial present is to be given 
 by the bridegroom, for it amounts to a sale of the daughter 
 by the father. The Levirate marriage, by which a man takes 
 the childless widow of his brother, is recognized as an 
 existing custom but sternly disapproved. It is acting 
 
351 
 
 "like cattle" says the Deity. And this is the more remark- 
 able because, while there was no land-law which it fitted as 
 among the Hebrews, there was a strong desire for offspring 
 whose celebration of obsequies might redeem the dead father 
 from the Hindu purgatory and help him on his way to the 
 blue skies of Indra. And here we observe that ivhen Law 
 ccmes it refuses to be bound by customs even where usage is 
 predominant, and selects out some and regects others. The 
 soldier and the trader could mgirry a Sudra but the magnifi- 
 cent Brahmin never. "For the crime of him who thus drinks 
 the moisture of a Sudra 's lips" there is no expiation. 
 Even within his own class the Brahmin must be particular. 
 He must choose a mate who has no blemish, who is not sickly, 
 nor an immoderate talker, nor redhaired, but one who walks 
 graoBfully like "a young elephant". If the husband die the 
 widow must not marry again; she "must not even pronounce 
 the name of another man." There is no trace in this Code 
 of that horrible rite which burned the widow on the funeral 
 pyre of her husband. That came later. Mains deduces the 
 tyrannical power of the father over his children, prevalent 
 elsewhere, from the text which says "three persons, a^ wife 
 a son and a slave, are declared by law to have in general 
 no wealth exclusively their own: the wealth which they may 
 earn is regularly acquired for the man to whom they belong." 
 
2 52 
 
 Later authorities describe it more strongl|t; but it hardly- 
 reached the level observable in some other races. 
 
 Turning now to the rules governing the possession 
 and the transfer of things movable , we find a singular mix- 
 ture of what is archaic and what seems almost modern; and 
 it is this phenomenon which has led some to the theory that 
 the Code as it stands was made long after the Christian era, 
 but compounded of very old authorities mingled with later 
 habits and rules. That would account for the many incon- 
 sistencies which puzzle us and is probably the truth. We 
 seem to discern in the business laws of Menu that origin 
 in Bailment which we have heretofore asserted, and that in- 
 herent duty of a return of the thing transferred or of its 
 equivalent which we have placed at the foundation of the 
 common law. We have insisted that at first such duty of 
 return was absolute and admitted of no excuse , but Kixaigxsl 
 ohang'ed as it grew by the admission of excuses. The Hindu 
 law-giver says: "Whatever thing and in whatever manner a 
 person shall deposit in the hands of another, the same thing 
 in the same manner ought to be received back by the owner." 
 But after a statement of the fundamental rule exceptions 
 begin to appear, that is cases where, instead of such a re- 
 turn, excuses for a non-return are accepted. If a herdsman 
 is entrusted with sheep and through his want of care any 
 
253 
 
 go astray or are Icilled he is responsible: but if robbers 
 seize them, and the keeper with fresh proclamation and pursuit 
 gives notice to the owner, the latter must bear the loss. 
 If the flock is attacked by wolves and the shepherd does not 
 repel the attack the loss will be his, while if without 
 his fault a wolf suddenly springs upon a sheep and carries it 
 off the herdsman is excused. The question of due care c®pi6s 
 palpably to the surface arid begins to modify the original 
 and hard rule. These axe cases of deposit for hire, but 
 there are those of deposit for use, that is a loan of a 
 thing to be used by the borrower, and the simple deposit to 
 be kept without use. In the first case the thing used 
 must be returned uninjured except by natural wear, but in 
 the second must be kept unused and so returned. Menu says 
 "as the delivery was so must be the receipt." And the re- 
 turn must be to the bailor himself and not to his heir pre- 
 sumptive or apparent , for, while he lives he may sue, but 
 if he dies such a return becomes good. The bailee who 
 holds property in pledge must not use it without the assent 
 of the pledgor. If he does he loses his debt and may be 
 treated as a thief. If the pledge is beneficial,— that is 
 t:. be used by the pledgee, — he must take no other interest 
 for his debt. "The fool who secretly uses a pledge without 
 the assent of the owner" gives up half of his interest. 
 Neither the right to recover a deposit or a pledge is ever 
 
254 
 
 lost by adverse enjoyment. Commentators say such actions 
 have been maintained after three generations. But any other 
 open possession of a chattel will ripen into a title in 
 ten years. 
 
 Very much of the law of Baiaaaent is devoted to loans 
 for consumption where only an equivalent is to be returned. 
 That includes the case of money lent and its return with 
 interest as compensation for its use. That rate was fixed 
 by specific regulations varying somewhat in the case of dif- 
 ferent classes. The general rule was one and a quarter per 
 month where a pledge was held as security, and two in the 
 hundred per month where no such security was taken; but the 
 rate was higher when classes below the Brahmin were bor- 
 rowers, or where the money lent was to be exposed to the 
 risks of commerce or foreign trade. In the latter case the 
 interest was lost if by accident the shipment never reached 
 its destination. If it did the interest settled by experts 
 "well acquainted with sea voyages" attended the venture. The 
 merchants seem to have understood discount, for it is or- 
 dained that interest received "at oncje" must never be more 
 than enough to double the debt. Evidently there were 
 usurers in those days for compound interest was forbidden, 
 or for more than a year, or immoderate profits from a pledge. 
 
 The law of Sales is elaborated with a legal precision 
 
255 
 
 which occasions surprise. It is first said that a sale by 
 any one but the true owner is null, and the false vendor 
 may be treated as a thief: next that mere occupation does not 
 establish ownership, but there must be title as well as pos- 
 session: then that the absolute property in a chattel is 
 acquired by a purchase in the open market, paying the price, 
 and "before a number of men." These are the transaction 
 witnesses of whom we have spoken in connection with consid- 
 eration. But if the vendee's title is challenged he must 
 produce his vendor. If iinable to do that, on proof of the 
 public purchase, he is freed from punishment although another 
 be the true owner, but must deliver back the property on 
 receiving half the value. The loss is divided between the 
 two innocent parties. Fraud in sales.prohibited and punished. 
 Mixed commodities must not be sold as unmixed, nor bad as 
 good, nor a thing hidden or concealed, nor may food be 
 adulterated, or gems be bored, or good feed be put in the 
 top of the bag to conceal the poor below. Menu adds that 
 fthe most pernicious of all deceivers is a goldsmith and the 
 king shall order him to be dut piecemeal with razors." We 
 suppose that was when he was caught debasing the gold, or 
 selling a false gem as genuine and pure. But all sales of 
 things not perishable are at first cunditional. The rule 
 is stated thus: "A man who has bought or sold anything in 
 
256 
 
 this world that has a fixed price and is not perishable, as 
 land or metals, and wishes to rescind the contract may give 
 or take back such a thing within ten days, but after ten 
 days he shall neither give nor take it back." The result 
 necessarily was that at the outset such sales were tentative 
 on both sides, and became absolute only after the expiration 
 of ten days. The Code further recognized and regulated 
 Suretyship in its two forms of guaranty of payment and re- 
 sponsibility for the action or appearance of another; 
 elaborated a system of taxation; dictated the tolls of 
 ferriage; and provided for the convenience and efficiacy 
 of government over wide areas by directing the king to 
 appoint a lord of one town with its outlying district, of 
 ten', of a hundred, and of a thousand towns, to whom was 
 committed the governing authority as representative of the 
 Sovereign. 
 
 The land law of Menu is scarcely anything more than 
 a law of trespass, and leaves ownership to be governed by 
 ancient usage, but fixes many rules of inheritance and 
 partition. The king is described as "the lord paramount" 
 of the soil and on failure of lawful heirs it escheats to 
 him. Outside of the Code we know what in the main the land 
 system was, as settled by immemorial custom. The English 
 
zm 
 
 found two different fc^s of ownership prevailing, one con- 
 fined to Bengal, the other spreading over the rest of 
 India. Ownership as joint tenants, by the family, and by 
 the village coimaunity was the usual type, but i-n Bengal the 
 group held more as tenants in common each having title to 
 an undivided share when the father didd. The wider system, 
 known as the Mitakshara, was that jito which Menu most profe- 
 ]^ably referred./ Its foundation was the joint undivided 
 family as the unit of the larger village community. It 
 consisted of three generation, — father sons and grandsons, — 
 all owning together the ancestral property and joS-nt ac- 
 quisitions, entitled out of it to a common support, having 
 a joint interest vesting in each descendant at the moment 
 of his birth , and constituting a heritage inalienable with- 
 out the consent of alll If one died his share passed by 
 survivcsrship to the rest, each was bound for the father's 
 debts contracted for the common good, and all bowed to his 
 managing authority. The village was composed of several 
 such families, aill controlled more or less by a Head-man 
 or a rustic council. Menu throws some light upon that 
 situation. He dictates that about the village there shall 
 be a space left for pasture, in breadth either four hun- 
 dred cubits or three casts of a large stick, and thrice 
 that space round a city of considerable size. That is 
 
258 
 
 the common or waste for the use of the villagers. If cattle 
 do damage to grain in an unenclosed field the king is told 
 not to punish the herdsman, but owners are directed to 
 enclose their fields with a hedge of thorny plants over which 
 a camel cannot loo]? and through which a dog or boar cannot 
 thrust its head. That being done a trespass by cattle in 
 charge of a keeper will bring a fine, but against cattle 
 which have no keeper the land-owner must fence at his peril. 
 Landmarks are to be protected. B^^^^a-ries are to be set 
 with trees, and mounds of earth are directed to be raised 
 so that the landmark may not easily disappear. A forcible 
 trespass is punished by a fine. Land is not lost by an ad- 
 verse enjoyment. Trees planted must not be injured, and a 
 witness speaking falsely concerning land is said to kill 
 everything animated. The inheritance went to the sons: 
 the eldest, as under the Mosaic code, receiving a double 
 share or portion, managing the whole and becoming the head 
 of the family. Tae lines of descent followed the order of 
 the ofesequies. The relations in the lineal line were called 
 Sapindas, extending to the sixth degree of ascent or deseent. 
 When all failed the Brahmin preceptor of the deceased took 
 the inheritance, 
 
 A much fuller statement is given by Menu of the 
 procedure before the king as judge and between litigants. 
 
259 
 
 The Sovereign or his representative presides. He is re- 
 quired to associate with him three or four learned Brahmins 
 upon whose wisdom he can rely; to open his court gravely 
 and scrutinize with patient shrewdness the slightest looks 
 and tones and movements of those testifying, in order to 
 reach the truth. He calls the witnesses before him in a 
 group, and lectures them on the sin of perjury with a pro- 
 longed vigor which shows his sense of the common drift 
 toward falsehood and deceit; a drift of the face which \»e 
 can see much later reflected in the charges to the grand 
 jury of Sir William Jones presiding at Calcutta. There was 
 need of it, for Menu himself had loosened the sanctity of 
 an oath "by saying that one might lie a little to save the 
 life of a friend from the severity of the law, and that "to 
 women in a time of dalli^e , or on a proposal of marriage, or 
 in promise for the preservation of a Brahmin, it is no 
 deadly sin to talce aii a light oath." The competency of 
 witnesses is very much restrained, Interet disquaUfies, 
 and even friendship or enm.ity. Public dancers and singers, 
 a priest, a decrepit old man, a child, a servant, one of 
 the mixed castes, cooks and meLan artificers, and many more 
 are excluded as probable liars, but may be examined in 
 crim.inal cases, or where the facts are shrouded in darkness. 
 A plaintiff who produces no sufficient witnesses is non- 
 
260 
 
 suited, and is beaten where they vary from the case alleged, 
 or contradict themselves, or were not present at the trans- 
 action, or have been tampered with or coached, or refuse to 
 answer proper questions. Hearsay evidence, it may be sus- 
 pected is not rigorously excluded for Menu speaks of "what 
 has been seen and what has been heard" as admissible. 
 False witnesses are to be punished by a fine and banishment, 
 except that A Brahniin escapes the fine. In a doubtful case 
 the ordeal of fire and water may be resorted to: and he 
 "whom the blazing fire burfls not, whom the water soon forces 
 not up" is held veracious. DKien it comes to execution in 
 a Civil case we see again the old habit of Self-Help and 
 the party him.se If forcing payment. It is said "by whatever 
 means a creditor may have got possession of his own property 
 the king must ratify such pajonent though obtained by compul- 
 sion:" and artful management, distress, and force are named 
 as lawful methods. The creditor could sit at the debtor's 
 door and cut off his supplies, or even seiie him in the 
 street, for, to the archaic thought, the creditor was not 
 enforcing a contract: C, no J — He was forcibly taking back 
 his own property which a wicked bailde unjustly withheld. 
 
 We have not at all exhausted this Cpde , but have gone 
 far enough for our ultimate purpose. With much in it that i_s 
 bad there is much that is good. It rises sometiirBs to a very 
 
261 
 
 high level of thought and of morality, and with one of 
 those expressions, stately and beautiful as a Psalm of 
 David, we may close this review. Menu says of the good 
 man who obeys the law: 
 
 "Giving no pain to any creature let him collect 
 virtue by degrees for the sake of acquiring a companion to 
 the next world, as the white ant by degrees builds his 
 nest: for, in his passage to the next world, neither his 
 father, nor his mother, nor his wife, nor his son, nor his 
 kinsmen, will remain in his company: his virtue alone will 
 adhere to him. Single is each man born; single he dies; 
 single he receives the reward of his good, and single the 
 punishment of his evil deeds. When he leaves his corse, 
 like a log, or a Iximp of clay, on the ground, his kindred 
 retire with averted faces; but his virtue accompanies his 
 soul, continually, therefore, by degrees let him ^^ collect 
 virtue for the sake of securing an inseparable companionj 
 since with virtue for his guide he will traverse a gloom, how 
 hard to be traversed.'" 
 
262 
 
 IX. 
 
 LYOURGUS AND SOLON . 
 
 In approaching the Greelc law as it prevailed in the 
 two dominant cities of Sparta and Athens we shall find our- 
 selves outside of the constructive work otf the priesthood, 
 but without escaping entirely the influence of that formid- 
 able body. As a consecpience, we may naturally efepect to come 
 upon very different phenomena from those which were disclosed 
 in Palestine and in India, where the law was little more than 
 the hand-maid of Religion and professed to derive its 
 authority from the Divine command. We shall not be disap- 
 pointed in that expectation, and yet, if we have been right 
 in saying that all law grew from the common instincts and 
 common needs of Humanity, we shall be sure to find many re- 
 semblances however disguised under forms that appeat to be 
 new and strange, When we turn to Sparta and the Spartans 
 in the time of Lycurgus the scene is very different from 
 those on the shores of the Jordan and in the valleys of 
 the Ganges. It is like ther/: in this, that a migrating race 
 skeks a nem home, and ^-aonfronts and dislodges the native 
 occupants, and partly exterminates and partly enslaves thetij 
 but alf3£g different in the small mass of ths invasion, and 
 in the character of the territory coveted and won. The 
 
263 
 
 question of who these invaders were and from what region 
 they came is an unsettled quarrel of the antiquarians. It 
 would help us somewhat if we knew, but back of the dim begin- 
 nings of the historical period or about 800 years before 
 Christ everything is so wrapped in a grim silence broken 
 only by fragments of myth and legend as to put the truth 
 beyond our reach. We are in or near ths Homeric age and 
 can get gleams of light from those marvellous poems, but must 
 look below the first recorded Olympiad for anything like 
 History. That ths Spartans were of Pelasgic origin; that 
 their supreme Deity was Zeus who for them took> the place of 
 Jehovah and of Brahma; that among the multitude of Gods sur- 
 rounding hip^ their favorite was Ap^Jlo, the Sun-God, j^iving 
 oracles for them at Delphi; and that few in number but brave 
 and vigilant, they had wound through the passes of the hills 
 and gathered into their City so circled and guarded by 
 mountain ranges as to need no walls for its defense;- so 
 mucfe seems to be reasonably certain. Very soon they must 
 have crystalized into three classes corresponding to the 
 three below the Brahmen in the Hindu system. There was the 
 Spartan himself, warrior always, disdaining labor, proud 
 of his descent from the divine Heracles and suppSrted by the 
 toil of those below him: there were the Perioeki, the native 
 inhabitants, freemen in name, toiling in their villages and 
 on their small fsorms, inferior but respectable, having no 
 
264 
 
 share in the City governi'nent , but allowed to fight for it 
 as heavy armed infantry in time of war; and there was the 
 Helot very like the Hebrew life-slave and the Indian Sudra, 
 but worse off than either because bound to the soil and re- 
 strained from rebellion only by blows and death. Over this 
 society, rude and restless and prone to violence and dis- 
 order, reigned two kings, equal in authority and so serving 
 as checks upp-n each other, thus creating a duplicate 
 sovereignty peculiar to the race. Undoubtedly the invaders 
 at the outset divided the land among themselves, for we 
 find an individual ownership in full operation though of 
 the simplest kind. Eaodi citizen had his outlying farm, 
 worked by his slaves, upon which he depended for support 
 beyond the spoils and p];under of war. But order there was 
 none and law there was none until Lycurgus came to frame a 
 system wMch for centuries gave to Sparta a peculiar renown 
 and the leadership of Greece. Who he was, whence he came, and 
 froa what sources he derived his theory of legislation can- 
 not be told with any certainty. Our principal authorities 
 are Plutarch and Aristotle. The story narrated by the 
 former is fascinating, and reads like a romance. It is 
 veined all through with myth and tradition, and yet so con- 
 sistent with itself, so plausible and seemingly truthful, 
 thst one almost resents the cold criticism of Grote which 
 disputes and denies the most interesting and remarkable 
 
265 
 
 statements of the biographer. That criticism however leaves 
 us free to believe in seme broad and ganeral i,vay the out- 
 line of the early life of Lycurgus with which Plutarch pre- 
 cedes his sketch of the Dorian legislator. One of the 
 two kings ruling over Sparta was his nephew, Charilaus, — 
 a mere child for whom Lycurgus long acted as^ both pro- 
 tector and Regent. As the young king grew to maturity, and 
 very likely became restive under the existing guardianship, 
 and because that guardian was constantly accused of a treach- 
 erous aim at the crown, Lycurgus withdrew from the city and 
 began a long journey in foreign parts. He spent some time 
 in Krete where he found in existence and had opportunity 
 to study that common table which he later introduced at home. 
 From thence he sailed over to Asia and visited the Ionian 
 cities on the Aegean coast where he for the first time 
 found the poems of Homer and brought thera into general 
 notice and favor. It ia said that he also travelled to 
 Egypt and even Africa and Spain, noting the habits of the 
 people and the rule under which they lived. After the long 
 absence of these travels he at last cauie back to Sparta, 
 and found the city full of discord and disorder. The two 
 kings thwarted each other, and each had his partisans, and 
 clash and collision of force was the daily occupation of 
 the citizens. He deter :nined to apply a renedy , and as his 
 
266 
 
 first step went to Apollo at Delphi for advice and direction, 
 
 / 
 We are not surprised at that for we have grown accustomed 
 
 to the common device of the ancient law-givers which clothed 
 their own authority with the Divine approval and fortified 
 it with the terror and majesty of the Gods. As Moses de- 
 voutly received his Tables from Jehovah, and the Hindu sages 
 took their code from the son of Brahma, so Lycurgus went 
 to Apollo at Delphi for an oracle of wisdom and direction. 
 The inspired priestess at that revered shrine filled him 
 full ^of the Sun-Gpd*s omniscience, and gave him a rhet ra 
 which he brought back with him and which served as the 
 basis of his legislation. Guarded by a chosen band of 
 thirty armed men he se:'peared In the City with his message 
 from the Deity, and winning the help of the young king, 
 who was his hephew, he promulgated a communistic system 
 so stern and so severe so different from anything in the 
 world about, and demanding so much of self-denial and 
 stoical endurance, that we wonder at its acceptance and its 
 long success. Its fundamental idea was palpably this; that 
 no man should live for him.se If but each for the state alone, 
 that to its needs everything should yield and bend, that 
 the individual should merge his identity in the mass, that 
 the essence?^ of all virtue lay in an implicit obedience to 
 the Civic Authority, and a grave and silent endurance of 
 the Civic commands. The man was c3a:owned in the aggregate 
 
26 7 
 
 of men. The means and method adopted to reach this result 
 was the distinctive law of Lycurgus, and we can hardly ex- 
 pect to find anything else. He was the builder of a camp 
 rather than the framer of a Code. He gave to History the 
 Spartan city, a compact and solid group of Spartan citizens, 
 soldiers all, and trained only for successful war. He or- 
 dained a relentless equality of life and condition which 
 spared no one. A common table, a public mes=! was provided 
 for all, simple and sober with its barley-meal, its wine 
 and cheese and gigs, to which was added game from the moun- 
 tains when the young men brought it in, and a part of every 
 animal *ich had been sacrificed to the Gods:- a table sup- 
 ported by the regular contributions of the citizens and 
 from which no one was excused. Wealth added no luxury, 
 rand escaped no privation. The man who failed to pay his 
 quota lost all his Civic rights and sank to an inferior 
 level. The whole time of the citizen was occupied with a 
 systematic discipline, the aim of which was to make him 
 , strong and vigorous, a swift and pliant athlete, bold and 
 daring and sternly patient of al 1 pain and suffering. At 
 the tender age of seven he passed into the custody of the 
 state and began a bodily and gymnastic training, severe and 
 merciless. The boy grew up in a group of other boys, taught 
 scarcely to read and write, but hardened by hardship, wrest- 
 
288 
 
 ling and running and fighting, going barefoot over the stbones, 
 wearing the same garment winter and siimmer , sleeping on straw, 
 drilling in the school of the soldier, learning the lesson 
 of obedience, growing hardy and tough under the pain of dis- 
 cipline, and bearing the self-imposed lash at a pitiless 
 shrine without the flinching of a sound or a tear. This 
 last and significant fact Plutarch says he personally saw. 
 At a suitable age he was required to marry, and found a 
 wife among the maidens who had borne a similar training. 
 They too had raced and wrestled in public games, clad in 
 tunics cut open at the sides to give their limbs freer play, 
 and brought up to be not the trifles of an idle hour, but 
 the mothers of men. The youth b/ought his bride of her 
 father, auid married her under s± the form of a forcible ab- 
 duction, but still they had to live a long time apsu-t , — she 
 in her home and hd in his barrack, — and he stole to her 
 side at night, or she came to him disguised in male attire. 
 Artifice, courage endurance, — even a love-match was made 
 to teach those Civic lessons. And so the Spartan never 
 had a home or the home -life of a child. The only tenderness 
 of a mother was for himi the brave eye of the matron who 
 bade him return from the war with his shield or upon it. 
 Sparta was father and mother, cradle and grave. Naturally, 
 we look to 'see by what process of dominant and forceful 
 
269 
 
 legislation this result was accoinplished. Lycurgus left 
 the duplicate sovereignty to which the race was accustomed 
 unchanged, but balanced- its despptic tendencies and restrainsfld 
 its |ealouB rivalries by a Senate of twenty-eight Elders, 
 called the Geronsia, to which was confided the general ad- 
 ministration of affairs. The two kings were members of this 
 Body, and the Thirty constituted the governing and the 
 judicial authority of the State. They initiated all admin- 
 istrative measures, and watched over the order and conduct 
 of the citizens, but were required to be chosen by the 
 latter and to be at least sixty years of age. They were 
 elected by a process which Aristotle derides, but which, 
 after all , seems to have been a rude way of ascertaining the 
 will of the majority. The candidate greeted by the loudest 
 shouting of the citizens as he passed among them was the 
 successful competitor. But the kings and the Senate were 
 not wholly independent of the citizens. Lycurgus ordained 
 that the latter should meet in a body in the open air, and 
 should vote to confirm or annul the measures proposed by the 
 Thirty. This General Assembly could not discuss or debate, 
 still less raodifjy or amend, the law proposed. They could 
 simply say yes or no. They had merely a veto pov;er. The 
 governmental system thus established was not at all new, 
 except in the precision of its terms and the definite 
 
2 70 
 
 character of its details. All through the Iliad and the 
 Odyssey we seethe King surrounded by his council of Chiefs 
 and taking the sense of his people, as stood Moses with his 
 Elders and the congregation of Israel, and the Hindu Rajal 
 with his Brahmin sages for advisers, and as we shall soon 
 see the Germanic Chieftain talcing the vote of his tribe 
 by the clashing of their arms. What Lycurgus did was to 
 regulate and limit these old habits and bring them within 
 the domain of positive law, assigning to each element of 
 the Constitution its definite place and power. Undoubtedly, 
 the tendency of this legislation was more or less to produce 
 the equalLty and peace of balancing forces in the State, and 
 to give opportunity for that compulsory education cf the 
 youth which would work desired results in the end. gut in 
 the meantime the equity sought did not exist. There were 
 rich and poor airiong the citizens; large land-owners with great 
 herds of cattle and numerous slaves; and rsxen^ so poor that 
 brothers sometimes kept but a single wife for the whole 
 household in order to pay their contribution to the public 
 table and so save their citizenship. To redress this in- 
 equality we know of some things which Lycurgus did, and of 
 others about which there is gra1»e debate. He certainly 
 tried to make wealth useless and prevent its accumulation. 
 The stress of his theory drove him to that , and so we find 
 some legislation in that direction. He banished from the 
 
S71 
 
 realm all gold and silver coin and substituted in its place 
 money made of iron, — so large and heavy and coarse that it 
 could not be carried about, or easily concealed or amassed 
 without great inconvenience. We state the fact on the 
 authority of Plutarch whose account Grote discredits be- 
 cause the first Greek coinage was the work of Pheidon at 
 Argos very much later than the era of Lycurgus. We do not 
 at all suppose that in his time either the Spartans or their 
 Dorian brethren had coined the precious metals, but do 
 suppose that the Phenician coinage on Lydian wedges of 
 gold and silver flowed in from abroad, for Homer shows us 
 the phenician ships trading on the Greek coast and the foreign 
 gold and silver could easily have found entrance. The cities 
 on the Asiatic coast must undoubtedly have had the gold 
 and silver flowing through the marts of trade, and they 
 were just across the Aegean almost bridged by islands, and 
 in frequent contact with the Peloponessus. We therefore 
 trust Plutarch's statement as to the substitution of iron 
 money in the place of the precious metals: and what a per- 
 manent hold this law of Lycurgus had upon the Spartans is 
 shown by tJas what happened in the much later day of Lysander. 
 He was entrusted by Cyrus with a large quantity of gold 
 and silver for the purposes of his military enterprises 
 which Lysander brought home from the Persian camps and de- 
 livered over to Sparta. But two of fne ephors protested 
 
;72 
 
 against receiving it as a violation of the lav/s of Lycurgus 
 and of the Dorian discipline, but they took the tainted 
 money nevertheless. Lycurgus also forbade his citizens 
 from going abroad; from indulgence in that "globe-trotting 
 which is to-^ay one of the curses of our own Republic, — and 
 also grew inhospitable to strangers, shutting them out 
 where he could and expelling them on occasion, because they 
 brought in the foreign gold and silver coin and the luxuries 
 which he sought to exclude. 
 
 But logically Lycurgus should have gone further. 
 The equality at which he aimed could never have been reached 
 without a re -distribution of the land. The Spartan was not 
 allowed to follow the mechanic arts or engage in trade or 
 devote himself to agriculture. His wealth, therefore, was 
 in his land; and to hold a surplus of that while other 
 citizens had none was an evil at whicrh we should expect a 
 leveller to strike. Plutarch says that he did; and gives 
 us the details of the distribution; by which each citizen 
 had his outlying lot or farm, called the" klenos " , which was 
 inalienable, at least by W8.y of sale, and which became the 
 family heritabe always to be preserved. Grote discredits 
 the whole story, and a very interesting clash of authori- 
 ties has resulted. We do not I:now what the truth about it 
 
273 
 
 is where information is both scanty and contradictory. He 
 is probably right in denying that the five Ephors, who were 
 at first merely Censors but later drew to themselves the 
 whole sovereignty, originated Y;ith Lycurgus, and the very 
 able historian may be right in discrediting the land distri- 
 bution: but yet we believe that it was unlawful to sell the 
 Klenos; we do not admit that it could be divided by will; 
 and we think it went to the eldest son at the death of the 
 father, the holder of the inheritance providing for his 
 brothers and sisters. If there were no sons but a daughter 
 SDVtvived, she was an heiress who was called "epikleros',' 
 that is "on the land," a part of the heritage, whom her nezt 
 of kin were entitled to mazry in order to keep the estate 
 in the blood of the family. Where disputes about it arose, 
 as they often did, the question was settled by the kings 
 acting judicially. That custom, about the existence of 
 which there is no serious controversy, indicates one thing 
 which throws a useful light upon the points in dispute. It 
 shows that by law or settled habit it was deemed always 
 necessary to keep the family land in the family blood, and 
 not allow the heiress to transfer it to a stranger line. 
 It is admitted also that the sale of that land, if not ab- 
 solutely forbidden, was at least deemed disgraceful and a 
 shame to the seller: and, adding to these indications what 
 
27 
 
 f 
 
 we know other races of the practical inalienability of the 
 
 home lot, it appears to us that Grote goes too far in claiming 
 that the kleros was saleable and divisible by will or succession. 
 The Spartan had no motive to sell. He could do nobftffig more in- 
 jurious to himself than that. He depended on the annual pro~ 
 duce of the land for the means of paying his share of the cost 
 of the common table, and so for preserving his citizenship. If 
 he sold he could only get some iron money yielding no income , 
 and by that process when his money was exhausted lose his posi- 
 tion and sink to an inferior level where he must either starve 
 or rob, for he knew no trade and would not work. The argu- 
 ment of the historian founded on the facts that the number of 
 the full citizens had largely decreased at the later period of 
 the Peloponesian war, and that the Spartan land had become 
 mostly the property of a few rich owners, shows only the ulti- 
 mate failure of the attexaptsd comiaunism, which is always in- 
 evitable, and scarcely serves to contradict the existence of the 
 primitive custom^t as it prevailed in the time of Lycurgus. It 
 is for these reasons that we depart somewhat from the conclusions 
 reached by Grote. 
 
 But in saying as we have that in a dispute over the 
 marriage of an heiress the Geronsia orcooj^cil of Elders acted 
 judicially we must not be misunderstood as to the character of 
 
275 
 
 that action. It was the explicit coiamand. of the rhetra 
 sanctioned by Apollo that the Spartan law should not be put in 
 writing, and S04. when the kings eat in judgment upon conflict- 
 ing claims for the hand of the heiress, and when the coxmcil 
 of elders adjudged the guilt or innocence of a murderer, they 
 simply made a decision founded on unwritten custom and their own 
 notions of what was best for the social aggregate. The Spartan 
 law was therefore unwritten custom operating through the will 
 or whim of the judicial body. Murder was punished with death 
 or banishment, but after a trial before the Elders and as a 
 Crime, Neither private revende nor a money compensation was 
 allowed: and the story of Dralcontius indicates that there was 
 little difference in result between an intentional and an ac- 
 cidental homicide. Theft was not a crime at all. The youth 
 were encouraged to steal, and praised for their cunning and 
 dexterity. The sole penalty was for the blunder of being de- 
 tected, and for that un-Doric stupidity stripes were awarded 
 liberally. Piracy was a perfectly respectable occupation and 
 to kill a suspected Helot even by treachery was a civic virtue. 
 It was one of the indirect though natural results of the mili- 
 tary system of Lycurgus that the citizens should govern their 
 Helots not only with severity but with constant and unsleeping 
 suspicion. Whenever any one of the enslaved race manifiested 
 an ability or courage above the average level some Spartan youth. 
 
276 
 
 armed with a dagger and watching his opportunity, killed 
 the slave and was praised for having removed a danger. The 
 murderous custora went so far that two thousand of the 
 bravest Helots, after having been praised and crowned for 
 their servicfe-s, were slain so secretly that the mode and 
 manner of their slaughter was never known. 
 
 Polygamy was not practised. The Spartan had but one 
 wife, though divorce was always at his option, and yet he 
 was so little jealous and so liberal in his view of what 
 was for the ggod of the State that he permitted and even 
 encouraged her to form other alliances. There were wives 
 who were mothers in different families and of different 
 broods, but whose conduct evoked praise rather than blame. 
 Nevertheless, the Spartan women were famous for the purity 
 of their manners and their lives as well as for their patriot- 
 ism and courage. One might suppose that the law and discip.£*-v~* 
 ix«f5i^3EE3t-^jhc» of Lycurgus would have neeirly extinguished 
 the craving for wealth and luxury. In that direction it 
 was a.f total failure. Inequalities increased continually, 
 although the number of full citizens decreased, and, oddly 
 enough, two fifths of the land passed into the ownership 
 of the women. All authorities agree that the Spartan devel- 
 oped a remarkable love of money, a persistent desire for 
 wealth, and a burning ambition for personal distinction. 
 
277 
 
 What Lycurgus accoiaplished was to breed up a military race, 
 invincible in war, whose power grew, whose City lasted long, 
 and for many centuries dominated GreecB, but whose citizens 
 were cruel, haughty and despotic, as well as orderly and brave. 
 We may leave them now and pass to the Ionian tribes, occupy- 
 ing Attica and building up the splendor of Athens, where 
 we may expect to find something more like a legal system, 
 and the beginnings of that Greek law which later attracted 
 the Roman study and admiration. The laost famous law-giver 
 of the Attic city was Solon v/hose name has come down to us 
 as the synonym of wisdom. We know little about his person- 
 ality, and that little is clouded with doubt and confused 
 by the legendary habit. The account of Plutarch, as sifted 
 by Grote and other historians of the peiliod, must be our 
 guide. Solon began life in what our utilitarian and pro- 
 saic age regards as the very unwise occupation of a Poet, 
 but it may be said in his defense that, if the verses of 
 his youth were perhaps inspired by the eyes of some Greek 
 girl, they rapidly grew serious under the stress of finan- 
 cial misfortune and the perils of his native city: and that 
 in his time there was no written prose but all appeared in 
 the roll and the cadence of the hexameter and pentameter or 
 the swifter iambus. He was regarded rather as a man of the 
 middle class although having noble blood in his veins, for 
 
278 
 
 he was an Eupatria of the Gens of the Kodridae whose heroic 
 lineage ran back to Poseidon the God of the sea; but the 
 waste and prodigality of his father compelled him to engage 
 in trade, and put him on the level of that merchant class 
 upon whom the aristocratic idlers looked down with a patron- 
 izing endurance. That p-ursuit carried him through most of 
 Greece and many pep:ts of Asia, broadening and diversifying 
 hie knowledge, and bringing him into vigorous and useful con- 
 tact with men and minds of al 1 classes and conditions. He 
 seems first to have come to the surface in the quarrel be- 
 tween Athens and Megara over the possession of the island 
 of Salam.is, and added to the patrotic stimulus of his 
 verses a personal share in the surprise which gave posses- 
 sion of the island. But very soon a wider field opened be- 
 fore him. Discord and almost civil war prevailed on every 
 side through all ihe domain of Attica. Three parties were 
 struggling with each other and striving for the ascendancy. 
 These were the men of the plain occupying Athens Eleusis 
 and the neighboring territory, wiCb constituted the richer 
 class of the citizens, and furnished the Oligarchy which 
 wielded the political F(S)wer : the mountaineers on the east 
 and north who were the poorest of all and suffering from 
 want and debt: emd the men of the sea-coast on the south 
 whose eeonomic condition was about midway between the other 
 
279 
 
 two. The great bulk of the cultivators and. tenants and 
 small farmers were in a state but little better than that 
 of hopeless slavery. The rich owned nearly all the land, 
 and the poor, driven by necessity, borrowed money upon the 
 only security possible for them to give,- that of their own 
 bodies, ■^ if the debtor could not pay he was adjudged the 
 slave of the creditor; and could sell and did sell his 
 minor sons, his unmsirried daughters and even his sisters 
 into the saiae disgraceful bondage. This boundless 
 parental authority born of the natural tendencies and sur- 
 roundings of the primitive man, strongly marked in the 
 Hebrew fsmiily, obvious in the Hindu system, faces us anew 
 in the dawning of Athenian civilization. All over Attica, 
 wherever there was a small land-wwner , there stood upon 
 his fields the inevitable mortgage pillar, a stone engraved 
 with the name of the money lender and iihe amount of the loan. 
 This was the Greek mortgage, and the fields were the office 
 of its public record, and in its shadow moved the step of 
 an approaching slavery. Large numbers had fled the country 
 to escape the fate that threatened, and were eating the bread 
 of exile far from their homes. It is not strange that a 
 stDDmjf gathered, that the air was full of it, aTid the sky 
 black with it, and the thunder of its coming already 
 booming in the mountains, in this emer^ncy every bodyxixaui 
 turned to Solon whose reputation seems to have pointed him 
 
280 
 
 out as the one raan who could save the state. They made 
 him Archon, and the date, it should be remembered, was 
 nearly six hundred years before the Christian era. They 
 expected to see him act the Dictator and swing an unlimited 
 authority, and almost jeered at hira for his refusal. Mr. 
 Grote , whose critical study we shall closely follow and 
 whose language we may sometimes use, represents him as re- 
 sisting the offered temptation. Perhaps he did in words, 
 but his very first act was one of the most despotic character 
 It was known as the Seisaktheia, or shaJcing off of burdens. 
 At oneblow he cancelled all secured debts, and set free 
 every debtor who had borrowed on the pledge of his body or 
 his land. Those who had fled or had been sold into slavery 
 he managed to redeem and bring bad: to their homes. The 
 mortgage pillars fell, the enslaved citizen was set free, 
 the ^ile returned to his native smil. How Solon dared so 
 violent and desperate a remedy, and how it may be in the 
 least justified are obvious inquiries. In our day it would 
 be inconceivable and indefensible, the robber creed of an 
 Anarchist. But our day is not at all what Solon's was, 
 and there were elements in the situation which may well 
 mitigate the criticism which his action inevitably sug- 
 gests.. It was neither the Socialism of a fanatic nor the 
 reckless folly of a Demagogue which dictated the measures 
 
281 
 
 he adopted. His war was not against wealth but against the 
 slavery attached to poverty. The citizen was not merely in 
 debt: that could be endured: but through debt bound in body 
 as well as property to the creditor. That was the root of 
 ^hB evil only to be extirpated by the most vigorous action. 
 But his decree did not outrun the mischief. It did not 
 operate upon all debts, being confined to those which were 
 secured by the debtor's body or his land. But he did ap-« 
 preciate the evil of great estates concentrated in the hsuids 
 of a few, and so put a limit upon the acquisition of real 
 property in the future , and then made the first distinct 
 inroad upon the archaic rule which we have seen in so many 
 directions and which required the debtor to answer bodily 
 for the debt. He deprived the creditor of the right to 
 imprison or enslave or extort labor from his debtor, and 
 limited the remedy to a judgment at law enforced only by 
 the seizure of property. Six centuries before the coming of 
 Christ this Greelc law-giver enacted a rule of liability 
 which Rome in its glory and England in its growth did not 
 dare to follow, and which only in our time has received a 
 substantial approval. But these were debtors who had not 
 pawned their bddies nor mortgaged their lands, and who 
 clamored for relief because stripped of the power of recover- 
 ing debts due to themselves. To help these Solon not only 
 
282 
 
 reduced the rate of interest but is said to have debased 
 the coinage. The stateraent of Grote is that he lowered the 
 standard of the drachma so that one hundred drachmae of the 
 new issue contained no more silver than seventy-three of the 
 old, thus in effect cancelling twenty-seven per cent of eill 
 existing debts. This measure put him in some peril for, 
 having disclosed his purpose to a few friends, they at once 
 borrowed large sums of money and with it bought lands and 
 then paying their loans in the new coinage secured the re- 
 sultant profit. These were no common men. They were dis- 
 tinguished citizens, Grecian magnates, what we now call 
 "insiders", who use their knowledge for their private profit, 
 and guide the interests entrusted to them so as to secure 
 that profit whatever else may happen. If some of them are 
 above that temptation the majority are not, and have con- 
 sciences so blunted by prosperity that they do not even 
 realize the wickedness of what they do. All that saved 
 Solon from the nisconduct of these "financiers" was the 
 fact that he was found to have suffered as a lender, and to 
 have lost rather than won by the change of standard. For 
 this measure he has been denounced as having set the vicious 
 example of debasing the coinage, a species of robbery not at 
 all uncommon in the later history of bankrupt nations. Theye 
 appear to have been two existing standards of coin value: 
 
28S 
 
 one known as the Aegin^^aean which at first prevailed, 
 and the other as the Euboean which ran at a lesser rate 
 and was most conEion along the routes of coKimerce and so 
 had probably become the accepted standard in the business 
 activity of the City. This last Solon reduced as we have 
 said and the new standard;; became distinctively known as 
 the Attic. It remained unchanged for a long period, and it 
 is remarkable that the temptation to a further debasement 
 was so steadily resisted. Whenever in Rome or in England 
 there was one tampering with the coinage it was sure to be 
 followed by others, but no suc^ result is obsefvable in 
 Attica. For at least three centuries the coin remained un- 
 changed and nowhere in the world was debt safer or its pay- 
 ment more secure. 
 
 Beyond these measures, helping the resources of the 
 people, and giving a new freedom to their business and corn- 
 activity were two others working toward the saiiie result. In 
 striking contrast with the surly and jealous exclusion of 
 strangers, and the scrornful contempt of mechanical occupa- 
 tions exhibited by Sparta was Solon's action in both direc- 
 tions. He welcomed and protected the strangers, insisting 
 only that they should have finally abandoned their old homes, 
 that they should pay a i.-oderate tax to the City which sheltered 
 them, and should have as their patron some Athenian citizen 
 
284 
 
 to represent them and speak for then, and be in a measure 
 responsible for their good conduct. And Solon encouraged 
 trades and tradesmen: even insisted that every father should 
 bring up his son to some useful OECUpation, and, if he did 
 not, provided that the son^ should be freed from any liabil- 
 ity to support the father^ in misfortune or old age. Athens 
 gave the son an education: Spaxta only a dagger. 
 
 The governing and controlling population of Athens 
 stood divided into four tribes, and each of these was sub- 
 divided into the Genoa or Gens and the Phratry- A number 
 of families having or professing to have a common ancestor, 
 a common worship and a common tomb, constituted the Gens or 
 House, and a number of these groups, banded together by a 
 similar community of virwrship and of origin, made up the 
 larger body known as the Phratry or bDother^ood. In this 
 Phratry the Greek boy soon after his birth was formally 
 enrolled, and the registry became evidence of the legiti- 
 macy of his birth and his right to the privileges of a 
 citizen. These divisions were of natural growth and of a 
 social character but always elements to be reckoned with 
 by the governing power. Solon did not attempt to alter or 
 destroy them, but, for the pjbljitical purposes of his Cons- 
 titution, silently disregarded them and made a new division 
 of the people on what is knovra as the ipimocratic system, 
 
285 
 
 and which was classification based upon incomes: — a method 
 of which we have had occasional taste in our own history. 
 Taking the medimnus of corn as the equivalent of the drachma 
 in coin he made four classes: the first of those whose income 
 equalled 500 medimni, the second of those having between 
 300 and 500, the third of those possessing 200 to 300, and 
 the fourth those whose income was below 200. The first class 
 alone were eligible to the office of Archon and the commands 
 of the State: the second composed the Knights who were the 
 horsemen of the army: and!, the third constituted the heavy 
 armed infantry. Here were the grades of an aristocratic 
 government and status founded squarely upon money. Grote 
 further explains to us how this classification was haaidled 
 for purposes of direct taxation in unusual emergencies when 
 the ordinary imposts or customs duties and tribute exacted 
 failed to furnish adequate supplies. The ratable capital 
 of the citizens was estimated fron income, but in varying 
 and arbitrary proportions. That of the first class was 
 rated at twelve times their annual income; that of the second 
 at ten times, and that of the third at five times: so that 
 the assessment operated like a graduated income tax, equal 
 within each class, but unequal as between the classes them- 
 selves. The fourth class, usually called Thetes, and by 
 which name we may identify them, although the propriety of 
 
286 
 
 that general designation is disputed, escaped direcrt taxa- 
 tion entirely, bat in case of war served as light armed 
 troops. Despicable to some extent they were, and might 
 have so remained but for the further legislation of Solon 
 which unrolled into consequences little expected and al- 
 most of a revolutionary character. He found in existence, 
 inherited at least from the earlier law of Draoo, two bodies 
 governing the State which were the nine Archons and the 
 council or court of the Areopagus. The Archons were chosen 
 by the latter for the term of a single year and from the 
 body of the aristocracy constituting the upper and richer 
 class, and at the close of their term of office became 
 members of the Areopagus. This venerable Council had a 
 vast and unlimited authority. It sat as a court of criminal 
 jurisdiction, it supervised with more or less of minute 
 scrutiny the daily life of the citizen, and often dictated 
 the foreign policy of the state. Before it were arraigned 
 those who were charged with wilful homicide, with arson, with 
 poisoning, with attempts to kill and with treason. Beyond 
 that jurisdiction the judicial authority was vested in the 
 Archons, not usually as a body or Bench, but to some e^2g;ent 
 distributively. The first or Chief was known as The Archon, 
 and he had exclusive jurisdiction over all family disputes, 
 over the rights of widows and orphans whose special pro- 
 
287 
 
 tector it was Bis duty to be. The second, known as the 
 Basileus, determined complaints for offenses against reli- 
 gion and in some cases of homicide. The third, called the 
 Polemarch, was the military leader and judged disputes be- 
 tween citizens and strangers. The remaining six, described 
 as Thesmothetae , had general jurisdiction outside of the 
 cases elsewhere assigned, and sat as a bench or college. 
 How much of this system ca.te from the legislation of Draco, 
 how much, if any'.^ was due to Solon, and how much was a later 
 development is involved in learned controversies which 
 we do not presume to settle, We know at least in the main 
 what Solon did. He took from the Kreopagus the right of 
 electing the Archons, and extended the franchise to the 
 Thetae gathered with the rest of the citizens in the Ecclesia 
 or General Assembly. This was adistinct step toward a 
 Democratic element balancing the power of the Oligarchy, 
 and he strengthened that element in two ways. He m.ade the 
 Archons and other officers accountable to the Assembly for 
 their official conduct, and organized out of it a popular 
 court for the necessary investigation. That was the Heliaea 
 which heretofore, in another connection, we have described 
 at length, though in its later and ultimate forms, and which 
 as a court in^ the end drew to itself not only the complete 
 judicial authority, silencing the Areopagus and reducing the 
 
S88 
 
 archons to mere clerks of the Court, but drowned in its 
 whirlpool the whole executive and administrative duty. 
 Solon undoubtedly judged that the Ekklesia by itself would 
 never be strong enough or intelligent enough to confront 
 the experience and the force of the aristocrat ical element, 
 represented by the Archons and the Areopagus, and so he added 
 a0 nexv council of four hundred, one quarter drawn from each 
 of the four tribes, whose duty it was to prepare measures 
 for the Eklclesia and be its adviser and guide. And thus he 
 planned a system working in equilibrium, peaceful and safe 
 because controlled by balancing forces, not at all realiz- 
 ing that in the drift of the years the judicial power be- 
 stowed on the mass and worked by the mass would wreck every 
 other institution in the State and end in disaster and 
 ruin. 
 
 Beyond these political changes, so grave in their 
 results, he invaded the realm of criminal law, and serious- 
 ly modified existing economic and social rules. He repealed 
 the criminal code of Draco excepting only that relating to 
 t^e crime of murder. What those laws were is unknown ex- 
 cept in a few scattered instances which yet disclose a sys- 
 tem of almost intolerable severity. Plutarch says it awarded 
 the penalty of death for even trivial offenses, such as 
 mere idleness or stealing an apple or a cabbage, and that 
 
289 
 
 Draco himself when asked why he so uniformly punished with 
 death answered that sma.ll offenses deserved that penalty 
 and he had no higher for greater crimes. We shall find a 
 similar severity in the early Angl-Saxon laws where death 
 followed a theft of more than twelve pence and in the 
 Welsh triads where it was the penalty for stealing more 
 than four pence. Draco however was not the earliest law- 
 maker of Greece. Some thirty years before him a Locrian 
 shepherd, inspired by a drean; supposedly sent by the Gods, 
 wrote out a code for his city. His name was Zalenkos, 
 and his law was a severe retaliation for every offense. 
 We may easily believe that the law of Draco was founded 
 on the same principle though its severity may be accounted 
 for by the fact that there were no prisons, no money for 
 fines, and the only effective punishments were banishment 
 and death. Solon did well in abolishing the whole of that 
 bloody code retaining only its provisions as to Homicide. 
 These indicated that to some extent the original rule of 
 personal revenge and even that of compromise and compensa- 
 tion prevailing in the Heijpic age had yielded to the inter- 
 vention and regulation of the State, and that, while the 
 Areopagus convicted of murder vathout regard to the cir- 
 cumstances of the Homicide, there were other courts pro- 
 vided which worked out a better justice. There was that 
 
290 
 
 singular court known as the Ephetae, consisting of fifty- 
 one members, which changed its place of judgment according 
 to the nature of the Homicide. Of course that implied a 
 preliminary investigation by the Archon in order that the 
 court might know in which of its localities it was neces- 
 sary to meet. If the killing was the result of accident 
 and so without negligence or evil intention the tribunal 
 met at the Palladium, and the accused was exiled unless he 
 appeased the kindred of the slain. There was thus a 
 possible compensation for an accidental homicide, a reBinant 
 of the custom we have seen elsewhere and shall see again. 
 If the killing was justifiable, as in self-defense, or in- 
 flicted upon the adulterer surprised in his trespass, the 
 trial was at the Delphinium, a locality sacred to Apollo 
 and Artemis. If the accused, already in teruporary exile, 
 was charged with a second homicide committed while abroad, 
 he was tried on the sea-shore at a place called Phreattys. 
 He was not allowed to land for he was regarded as impure by 
 reason of the stain of blood upon him. in Israelite would 
 have called him unclean. He approached the shore in a boat, 
 and remaining in it ffiade his defense to the accusation. 
 Where the perpetrator of a homicide could not be discovered 
 but the weapon or instrument of de^th was found, that was 
 formally tried and condemned at the Prytaneum or State Houde, 
 
2 SI 
 
 and solemnly cast beyond the border. It is impossible 
 not to see in these curious forms the traces of religious 
 ideas which overhung and diatated them. The blood which 
 had been shed even accidentally was offensive to the Gods 
 and carried a consequent impurity needing to be cleansed 
 by a due expiation. It was probably for some such reason, 
 or because of some legendary rule, that the Areopagus re- 
 fused to distinguish between degrees of homicide. The court 
 met in the open air to avoid the impurity of the criminal.' 
 On the second day of the trial he might leave the country 
 if he would, going by a particular road, safe from violence 
 on the way, but becoming an exile for life, and losing all 
 his property by confiscation. 
 
 The crime of theft in the time of Solon was probably 
 regarded very much as we see it in the allusions of the 
 Orators at a later peiiod. Stealing by day and to the value 
 of less than fifty drachmae was the petty larceny of the 
 Attic law; while theft to a larger amount, or committed 
 in the night, or in the Gymnasia, or in the harbors, be- 
 yond ten drachmae was the grand larceny of the period. For 
 that offense the owner might maintain either a civil or a 
 criminal action. In the first case he recovered a two-fold 
 value whether the stolen goods were returned or not, and 
 might put the thief in the stocks for five days and nights. 
 
2f2 
 
 jn the latter case the complainant was heavily fined if he 
 failed to secure two fifths of the court; but if he obtained 
 a conviction the penalty might be death, but was never less 
 than the loss of all civil rights. 
 
 Solon forbade the exportation of euiy agricultural 
 produce except olive odl. • The last was producEed in leirge 
 excess beyond the wants of the citizens, but the other ^sx% 
 products he* probably deemed it unsafe to spare lest in some 
 years should come an insufficient supply and famine take the 
 place of plenty, breeding suffering and disorder. He regu- 
 lated msirriage with great care and precision, encouraging 
 it when founded upon affection, and for that purpose pro- 
 hibited dowries given with the wife. She w'as to have three 
 suits of clothes and a little inconsiderable household 
 stuff. If an heiress, the temptation to marry her for her 
 wealth, — a temptation littering our own shores with an im- 
 pecunious nobility, — ^was balanced by permission to the wife 
 if dfsatisfied with her bargain to discard the husband and 
 take his nearest kinsman. The speculator ran the risk of 
 losing both wife and fortune amid the jeers of the community, 
 and was little likely to face the peril unless a real af- 
 fection m.ade separation improbable. Marriages were to be 
 reasonable and the parties fitly mated. January was not to 
 wed with June. The young man who sought a venerable wife 
 
2^3 
 
 was sternly reprimanded and "bidden tc chosse a more suitable ■ 
 mate. All vromen were deemed by nature extravagant and 
 given to love display. The legislator undertook the doubt- 
 ful task of repressing the tendency. When they walked abcuad 
 in the street they were allowed but three articles of dress; 
 at a feast they could have but one obol's worth of meat and 
 drink; and at night they were not to go about unless in a 
 chariot with a torch before them. These restrictions ac- 
 cord with the archaic fact still prevailing that the man 
 and his wife are one and he is that one. 
 
 Expensive and demonstrative funerals were forbidden. 
 Mourners were not to tear their hair or bruise their per- 
 sons to excite pity,, or indulge in vociferous wailings. 
 To offer an ox at the grave was not permitted, nor to buyw 
 above three pieces of dresB with the body, nor to visit 
 any tombs except those belonging to the fainily. 
 
 Three further regulations of Solon have been pre- 
 served by the historians. He allowed no man to speak evil 
 of the dead, or to revile the living in the temples, the 
 courts of justice, the public offices or at the games. 
 The penalty affixed was comparatively small but had an 
 importance in one respect. It recognized, what seldom^ 
 had been previously understood, that the saiue act might 
 be a violation of individual rights to be reiressed and a 
 
294 
 
 sTT 
 
 wrong against the State to be punished, for, it fined 
 the offender three drachmae payable to the party injured, 
 and two drachmae payable to the public treasure . Solon 
 disfranchised any citizen who stood neutral in a sedition. 
 He was required to take one side or the other and not stand 
 apart like a cowar^il,, or wait for results in order to choose 
 the winning side. Solon allowed the malcing of a, will when 
 the testator had no children. Professor Lee regards this 
 provision as a blow at the doctrine of ancestral worship, 
 and also at the patria potestas , and awards it supreme im- 
 portance for that reason. But that judgment must rest on 
 ultimate results flowing from very much of additional growth. 
 The immediate effect was this only. Before the law of Solon 
 the property of a man dying without issue went inevitably 
 to his Phratry. The new rule allowed hiru to escape that 
 necessity, and choose his own heir or legatee. Still, his 
 notions of ancestral v/orship would lead him to select some 
 one of his Phratry who were his kinsmen, real or supposed. 
 On the other hand if he had sons he could not disinherit 
 them. The iiiomediate effect of the new law was therefore 
 slight, but the change was important because of the princi- 
 ple underlying it which w^s the right of the owner of pro- 
 perty to dispose of it by will. That principle, narrowly 
 applied at first, was sure to grow and shake off one by one 
 
295 
 
 impediments and restrictions. Some restraint however ac- 
 companied the testamentary privilege. The will was required 
 to be the free act of its malcer, and not the product of 
 disease, of flattery, of duress, or even of persuasion, 
 ^he perils of undue influence, against which ovir courts to- 
 day stand on guard, were fully realized by the Attic sage. 
 Subject to the right to make a will , the law of succession 
 was this. The sons inherited in equal shares: in default of 
 sons the daughters took: if there were no direct lineal de- 
 scendants the estate went first to the father, then his bro- 
 ther or brother's children: next his sister's children: 
 after them the cousins by the father's side and then those 
 by the i.^cther's side: the male line of descent having the 
 preference . 
 
 So much of the Solonian code as has been er.etched we 
 know. That there was very much more of it, lost forever in 
 the Past, is made probable by the great reputation which it 
 had, and the constant commendation of historic allusion. 
 We can see one thing about it likely to prove of the gravest 
 consequence. For almost the first time the law of the 
 State emanated from the governing authority of the State 
 itself, and ceases to rest upon the superstitution of a 
 divine origin. It thus becomes elastic and easily subject 
 to change along the line of the social necessities. Lee 
 brings out the im.portance of this change with force and ac- 
 
296 
 
 curacy, and we may concur in his final view of the Athenian 
 laws that "with their birth was born statute law as opposed 
 on the one hand to the traditional or customary law, and on 
 the other to the supposed revelations of the gods." 
 
 This law of Solon was written upon wooden tables or 
 rollers, running from left to right and then back again 
 from right to left, and fragments of these Plutarch claims 
 to have seen preserved in the Prytaneum. Obviously the sys- 
 tem of law developing in Greece was a great advance upon 
 all that had preceded it and gave liberal promise of that 
 wonderful evolution destined to make her Roman conqueror 
 more famous than even wealth and her wars: while yet in its 
 origin it teaches the thoughtful scholar the utter failure 
 of even a partial Socialism or Gomnunism, and the danger of 
 a pure Democracy not founded on a representative and judi- 
 cial system. 
 
296 
 
 X. 
 
 THE SALIC LAW. 
 
 It is like stepping out from the light into the 
 darkness to turn from the growing civilization of Athens to 
 the laws of the barbarians who poured out of the German 
 forests into the river valleys of Gaul. They crossed the 
 Rhine in many separate tribes, each known by some distinc- 
 tive name, always armed, led by thddr chosen Chiefs, warring 
 often 7;ith each other, but invariably fighting the Roman 
 legions which held the Gallic province for the Emperor and 
 sought to bar and beat back the invasion. Each tribe had 
 its body of customgury law, at first resting only in tradi- 
 tion, but later, and guided by the example of the Theodo- 
 sian code, and largely influenced by contact with the Roman 
 provincials, preserved in written records, various in many 
 details but alike in th4ir general character, so that we 
 may regard one as the type of all. 
 
 That one which we have selected out for our study 
 so famous in the annals of the earlier Ages, as the law of 
 the dominant tribe whose valorous ambition founded the 
 French monarchy, that we cannot stand excused if we fail to 
 give it some patient consideration. It is known as the 
 Lex Salica or the Salic Law, and governed the swarm from the 
 
S97 
 
 northern hive described as the Salian Franks. Whatever 
 may have been its original form, the earliest text appears 
 in a corrupt and barbarous Latin, dating from the fifth 
 century after Christ, or about the time of Clovis who pushed 
 his conquests from the Black Forest to the Loire; and that 
 text was followed by other recensions until it becaiiie the 
 amended law, the Lex Salica Emendata ^of Charlemagne. An 
 edition which gives us eight different texts has been edited 
 by Hessels and annotated by Kern and was issued from the 
 London press in 1880. To that we shall always refer, aided 
 somewhat by a partial English translation not always to be 
 trusted: by the French translation of Peyr^ , useful but quite 
 unsafe to follow: and still more by the very acute and learned 
 work of Sohm as translated with his approval into the French 
 of M. Theverin. 
 
 The difficulties which beset every investigator 
 grow largely from the intermixture with the awkward Latin 
 of many Frankish words constituting the technical law-terms 
 of the time, and known as the gloss I>Ialbergique . The Ger- 
 man scholarship has established that these puzaaling words 
 are intended not to change but only to more accurately ex- 
 plain the Latin words used, except where no such words could 
 be found to express the meaning intended. In the latter 
 case they become the key-words of the text, and their true 
 meaning has bred among the authorities great differences of 
 
298 
 
 opinion. We have studied these different words and phrases, 
 difficult and blind as they are, with faithful patience, 
 but with an uneasy feeling that we may have sometimes gone 
 astray. 
 
 The Salic law became famous in this way. While in 
 truth it was simply a rule for the guidance of the Teutonic 
 court of the Hundred, in one direction it provided for the 
 descent of land from male to male and excluded females from 
 the line of succession: but beyond this was persistently 
 claimed to settle the legitimate right to the French throne 
 and determine conclusively the royal succession. It fur- 
 hished the legal basis and the arsenal of arguments for the 
 Qjtarrel between the third Edward and Philip of Valois, an- 
 notated by the battles of Crecy and Poitiers and Agincourt, 
 and prolonged with words and weapons and varying fortunes 
 through a hundred years. All along the line the Lex Salica 
 was constantly appealed to and yet seems to have been neither 
 read nor understood by the partisans of either side. 
 Nothing now is more certain than that it furnished no direct 
 test of regal title, and jsmxts on its face had nothing 
 whatever to do with the subject. The whole provision referred 
 to is in these terms. "1. If a maLn die without issue his 
 father or mother shall succeed him. 2. If he has neither 
 father nor mother his brother or sister shall succeed him. 
 
299 
 
 3. If he has neither brother nor sister the sister of his 
 mother shall succeed him. 4. If his mother has no sister 
 the sister of his father shall succeed him. 5. If his 
 father has no sister the nearest relation by the male side 
 shall succeed. 6. Not any part of the Salic land shadl pass 
 to the females; that is, the male children shall succeed 
 their father." The first five provisions plainly refer to 
 the case of a man dying without issue, and trace the de- 
 volution of property in that event. The siKth as plainly sb 
 contemplates a death with issue living, and gives the Salic 
 land to the sons in preference to the daughters. There 
 is not a word about royal succession, and it is for that 
 reason that Maine disputes the Code as authority or argu- 
 ment on the question, and quotes approvingly the sarcasm of 
 Voltaire who jested at it as having been dictated by an 
 angel to Pharamond, the first Frankish King, and to have been 
 written by a quill from the angelic wing. We do not see 
 the matter quite in that light. The question was one of 
 the law of descent, — who should succeed the dead king. The 
 rule might naturally be tested by the order of individual 
 succession. Let us remember that in those early days the 
 successor was not merely the inheritor of property!; but 
 also the head of the house, master in the room of the an- 
 cestor departed. It does not seem therefore either a 
 
50.0 
 
 weak or illogical method to appeal to the general law of 
 descent long governing the race as the proper test for the 
 descent of the crown. The English argument did not deny 
 the force of the reasoning, but attacked its premises. 
 Shakespeare, in his Henry V, a purely historic play, puts 
 that argument in the mouth of Canterbury. He says "the law 
 Salique** does not apply because the land SaliQue was Gar- 
 man, and so 
 
 "doth it well appesir the Salique law 
 Was not devised for the realm of France." 
 
 The argument concedes the fores and bearing of the law but 
 simply limits its application to German territory. But 
 what was meant by the SaLic land? The answer given by 
 Monte squleuL is that it means the Alod, the German house 
 with its enclosure about it ; and that the word Salic is 
 derdted from "Sala", a house. But here again intervenes the 
 work of modern criticism. It is said that the Salian 
 Franks were seated on the Yesel whse ancient name was the 
 Sal. Maine says the word "Salica" in the text is a false 
 interpolation, and that the genuine reading is simply "the 
 land" instead of "the Salic land." A comparison of the texts 
 indicates that he is right, and yet the force of the criti- 
 cism is somewhat weakened by the fact that in most of the 
 texts the Rubric prefixed, which precedes and describes the 
 
501 
 
 subjeat of the sections, is regularly and invariably "Con- 
 cerning the Alod." When and by whoiu these RubriccB were 
 fraiaed it is impossible to know, but the natural presump- 
 tion is that they came from hands cp. ite near to the origin 
 of the Code, and were affixed by those who knew better than 
 we the scope and meaning of the law, {^although the German 
 scholarship distrusts them utterly and points out that 
 some of the texts had no rubrics attached. It may be sug- 
 gested however that it was only the alod in which at first 
 there was such an individual and several ownership as to ad- 
 mit of inheritance. The arable mark changed every year, as 
 Caesar tells us was the Germanic custom, and the waste or 
 common were hardly subjects of individual inheitance. We 
 can see in the habit and manners of the primitive Germans 
 how natioral and almost inevitable it was that, the house and 
 its enclosure, the patrimonial inheritance, should descend 
 to the sons who were to inhabit it, and not to the daughters 
 wo were to leave it and go into other households. And yet 
 the exclusion of the daughters was not contemptaauis od un- 
 kind, but simply prevailed in the competition with the sons. 
 Where there were none of these the daughters inherited, and 
 when the warrior tribes invaded the South and grew rich in 
 lands beyond the home enclosure it becaiae common for Ihe 
 father to settle these upon his daughters, imtil the law 
 
so 
 
 r> 
 
 exclusion becaiae narrow in its application and often fell 
 into disuse. 
 
 But there was another method of transferring land 
 which apparently was independent of the la?/ of inheritance 
 and operated during the life of the owner, and was so clese 
 a copy of the process by which the early Roman instituted 
 axi heir as to indicate the dominant influence of the Civil 
 Law even upon barbarian usages. We shall repeat Henderson's 
 translation of the section which seems to at least approach 
 accuracy, and shall do that partly to discloss through what 
 blind phrases the meaning has to be sought, but mainly to 
 evolve some of those axchaic doctrines which we have found 
 elsewhere, and whose presence in the German law \j!|fill tend 
 further to establish the universality of thdir application. 
 The text reads thus: "The observance shall be that the 
 Thunginus or Oentenarius shall call together a court, and 
 shall have his shield in the court, and shall demand three 
 men as witnesses for each of the three transactions. He, 
 (the owner of the land to be transferred) shall seek a man 
 who has no connection with himself and shall throw a stalk 
 into his lap. A^d. to him into whose lap he has thrown the 
 stalk he shall tell concerning his property, how much of it,- 
 wh^her the whole or a half,- he Virishes to give. He in whose 
 lap he threw the stalk shall remain in his (the owner (s) 
 house, and shall collect three or more guests, and shall 
 
303 
 
 have the property, — as much as is given him, — in his power. 
 And afterwards he to whom that property is entrusted shall 
 discuss all these things with the witnesses collected. 
 Afterwards, either before the king or in the regular court, 
 he shall give the property up to the person for whom it is 
 intended. He shall take the stalk into the court and before 
 twelve months are over shall throw it into the lap of him 
 whom the ovmer has named heir; and he shall restore not 
 more nor less but exactly as much as was entrusted to him." 
 
 So far the transfer seems to be complete. It does not 
 appear to be a ceremony of salel It is to the heredes , the 
 ^fiSSon chosen to take as heir, that the property is given, 
 and so no consideration passes. In a case of sale the de- 
 livery would naturally be directly to the vendee ^and there 
 would be no need of an intermediate trustee. But where 
 the grant was to one taking as heir, and paying no consid- 
 eration which the xvitnesses could see, the intervention of 
 a disinterested third party through whom the title should 
 pass was a convenient and desirable protection against the 
 chances of falsehood or fraud. That this was the purpose 
 of the ceremony is evident from what follows. It is a 
 statement of the procedure where the Validity of the trans- 
 fer is challenged and reads thus: "If any one shall wish to 
 say anything against this three sworn witnesses shall say 
 
■z 
 
 04 
 
 that they were in the Court which the Thunginus or Centen- 
 ari-Qs called together, and that they sav7 the man who wished 
 to give his property thro\i(; a stalk into the lap of him 
 whom he had selected. They shall name by name him who threw 
 his property into the lap of another ^ and likewise shall 
 name him whom he named as heir. And three other sworn 
 witnesses shall say that he in whose lap the stalk was 
 thrown had remained in the house of him who gave his pro- 
 perty, and had there collected three or more guests, and 
 that they had eaten porridge at table, and that he had 
 collected those gscasiBX who were bearing witness, and 
 that those guests had thanked him for their entertainment. 
 All this those other sworn witnesses shall say, and that 
 he who received that property in his lap in the Court 
 held before the king or in the regular Court did publicly, 
 either before the people in presence of the king or in 
 public court, — namely on the Malberg before the Thunginus, 
 thro?/ the stalk into the lap of him whom the owner had 
 named as heir. And thus nine witnesses shall confirm all 
 this." 
 
 Several observations are suggested by this Salic 
 procedure. It indicates the existence of a court held 
 before the king, and others held regularly which the people 
 attended. The word "mallo" which Henderson translates by 
 
305 
 
 the technical word "Thing" means always the conununal court 
 presided over by the Thunginus or Centenarius, the name of 
 the last officer indicating that it was the court of the 
 Hundred. What is called the "malberg" means the law-hillj^cie 
 where habitually the meeting of the courts occurred, as in 
 Greece the hill of Ares gave name to the Areopagus, and the 
 ceremony described, therefore, partook of a judicial char- 
 acter, and was the equivalent of what we now establish by a 
 Court record. It is further to be observed that the pro- 
 cedure ordained brings out in strong relief the presence 
 of and the necessity for the transaction witness by whom the 
 truth can be remembered and proved. Since the transfer was 
 one without a consideration there would be no tangible 
 transaction which the witnesses could see unless there was 
 in some way a manifest delivery of the land. To accomplish 
 this the very same symbolic delivery of a stalls or twig which 
 we shall see at Rome is adopted, and to that is added not 
 only an actual occupation of the house, but acts of owner- 
 ship by the intermediate trustee; for /he invites guests 
 to his table and treats them with porridge and they thank 
 him for the entertainment. That this institution of an heir 
 could have been borrowed from the early Roman will is evi- 
 dent from the fact that the Theodosian code furnished the 
 law of Gaul when the Saliem invaders came, and as they got 
 
306 
 
 their law Latin from the provincials whom they conquered it 
 is not difficult to suppose that they grafted upon their 
 barbarian procedure some of the Roman methods. 
 
 There is a further provision properly belonging to 
 the Salic land law which throws some light upon the organi- 
 zation of the German village communities. We have already 
 described these in a general way, but we are now to learn 
 that they were in the nature of Gltibs or Associations into 
 which no new member could be admitted except by unanimous 
 consent. The law declares, "if any one wishes to migrate 
 to another village, and if one or more who live in that 
 village do not wish to receive him, — if there be only one 
 who objects, — he shall not have leave to move there." The 
 ezclusiveness of this provision indicates the cheuracter of 
 the German land-ownership. Under the customsiry law the 
 Alod was practically inalienable, and the arable mark and 
 the pasture fields were the common property of the villagers. 
 A new-comer could not buy an existing alod as a general rule, 
 and would be compelled to enclose a home from the common 
 fields and get his arable strip and his pasture from the 
 common possession. Hence every villager was directly inter-' 
 ested in the question, and no new allotments could be made 
 to the stranger except by unanimous consent. Sometimes, 
 however, the intruder seems to have helped himself. He 
 
30 7 
 
 became what we roughly call a squatter, and took possession 
 without authority. The Code meets that emergency by what 
 may be called a barbarian ejectment though conducted by 
 the complainant himself acting on .the basis of Self-Help 
 and extra-judicially. Any one of the villagers might give 
 the intruder a notice to quit within ten nights. That 
 notice was called the " te stare " which is one of the key- 
 words of the Procedure. The complainant went to the house ■ 
 of the intruder, accompanied by witnesses, and gave his 
 notice thus: "Man, I say to you that you cannot stay here 
 this night according to the Salic lav;: I tell you that you 
 must leave this land after a delay of ten nights." Having 
 given his notice the complainant was bound to wait for an 
 answer by way of obedience or refusal until sundown. That 
 was called the " so3^em collocare " and carried with it always 
 a penalty of three solidi to compensate for the delay and 
 refusal. Three times and ten days apart the " te stare " and 
 the " solem collQcare " were repeated. If then the intruder 
 did not leave, the com.plainant cited him to appear: before 
 the Count. That was the " mannitio" or summons, emanating 
 from the individual and not from any judicial source. When 
 the complainant appeared before the Count he proved the 
 triple " te stare " and " solem collare " , the refusal to depart, 
 and demanded of the Count that he eject the intruder. That 
 demand had to be granted. The Count could not refuse except 
 
508 
 
 at the peril of his life. There was no inquiry into basic 
 facts, no judicial investigation. Tre precedent formal acts 
 alone worked the result and the intruder was ejected. We 
 may now turn to the legislation intended to protect against 
 trespass and crime. 
 
 We are impressed with the general fact that the chief 
 sanction of the Salic law was the imposition of fines. 
 Alike for trespass or for crime, for breaking a boundary 
 or stealing an ox for contempt of court or marrying a widow 
 the penalty is invariably and inevitably sone fixed amount 
 of money, and never once imprisonment or slavery or beating 
 with rods, where the German himself was the culprit. We 
 have discovered but a single exception. The free-born man,— 
 inge nuus , — if he so far forgot the pride of his race as to 
 marry a bondmaid sank with her into the condition of servi- 
 tude. With that exception he never suffered an ignominious 
 penalty. Blows were only for slaves and prisons there were 
 none. And so we find the Salic law measuring out it fines 
 with a minuteness of detail which excited our wonder. The 
 great bulk of the Code is devoted to the prevalent crimes 
 of theft and personal violence which as usual most needed 
 repression. There are separate provisions for different 
 classes of things stolen and different forms of the offence: 
 
^09 
 
 for theft of swine, of cattle, of sheep, of dogs, of birds, 
 of trees, of slaves, of houses, of boats, of grain, of 
 clothing, of a bell from a sheep, of a shackle from a horse, 
 of grafts-, of hay of a hunter's eqaipment, of a fisherman's 
 nets, of goats, of a girl's bracelet, of flax, of wood, of 
 grapes, of a sta]g used for hunting, of a boar which the 
 dogs had worried, and even of the clothing of the dead. 
 Each one of these separate offenses has its sub-divisions, 
 founded on age, value and circumstances, prescribed so peirti- 
 cularly that one could steal swine in twenty different ways 
 and incur twenty separate penalties. These fines as we 
 have called them, — so many dinarii represented as ainounting 
 to so many solidi, — were imposed by the court, and payable 
 generally to the treasury of the state. But restitution of 
 the thing stolen or of its equivalent value, was in almost 
 every instance required in addition. At the end of a multi- 
 tude of the commands and with a monotonous repetition ap- 
 pears the phrase " excepto capitale e t delatura," follo?/ing 
 the imposition of the fine. As we understand it, " capitale " 
 was the capital sum, the thing stolen on its value, and 
 "delatur a" represented the owner's hindrance, or expenses 
 of pursuing the property very like our costs: and the phrase 
 may be translated into the vernacular of our law "besides 
 damages and expenses", so that the thief paid, first, the 
 
510 
 
 value of the thing stolen, then expenses or costs, and then 
 the fine jsai which, if paid to the owner, would correspond 
 rudely with our vindictive daraages. But there were expenses 
 of the trial. Something must go the court or the count for 
 services and trouble. Following most of the fines in the ab- 
 breviation *< -CtUlp . g'ud . " fe notice that in some cases the 
 expression is " dimidio cu|)p . j ud . " The abbreviation stands 
 for culpabilis .judicetur and it is said the word "f isc o" 
 is to be understood, so that the phrase may be assumed to 
 mean shall be adjudged chargeable or in default to the 
 treasury for so many solid! . Sometimes, therefore, the 
 whole or a part of the fine was payable to the State. In- 
 deed that seems to have become the general rule, and the 
 wergeld or composition for murder, the bloodpprice , was 
 payable in addition to the relatives of the slain. Outside 
 of that we may suspect that the bulk of the fines went into 
 the treasury and so compensated for the public expense. 
 Theft therefore was regarded as a Crime as well as a tres- 
 pass against the right of property, ^stitution with costs 
 compensated the individual. The fine was punishment in- 
 flicted by the State. If a slave was the thief he suffered 
 blows running to a hundred and twenty unless, in the quaint 
 phrase of the law. his master chooses to redeer.. his back by 
 paying the fine and malcing the restoration prescribed for 
 
511 
 
 the offense. 
 
 Almost equally nmnerous and catalogued with the same 
 minuteness of detail are the acts of personal violence 
 punished in the main as Crimes and by fines payable to the 
 treasury, although an exceptional few of these may have been 
 payable to the party injured . Where the injury did not or 
 where it did result in death the fine varied with the char- 
 acter and extent of the harm inflicted. We find specified 
 cases of a blow on the head whereby three bo nes^ exposed, 
 where the brain appears, done with a club where no blood 
 runs, with a weapon of metal, with a closed fist, with a 
 stab in the ribs, by poison vtrith herbs, where the victims 
 are boys or women or unnamed babes, where the hand is cut 
 off entirely, where only mangled it hangs to the wrist, 
 where a thumb or great toe is cut off, or either one of the 
 four fingers, or three fingers are severed at one blow, 
 where the foot is maimed, or an eye gouged out, or a nose 
 cut off, or gfe. tongue cut out, where the wound refuses to 
 heal, where the attack is in the highway, where it is by 
 surprise or the victim is sleeping, where the killer is a 
 slave or the victim a slave or a bondmaid, or a companion 
 of the King or in the royal trust, or is the Count or 
 Grafio,, where the killing is done by a crowd or gang, 
 when it happens at a feast where the golrlets have circulatdd, 
 
512 
 
 where a Roman kills a Frank, where a Frank kills a Roman, 
 and where that Roman is a tributary. Then comes a most extra- 
 ordinary case which indicates the savagery cf the times and 
 the brutality which prevailed and which we translate thus: 
 "If any one shall find a person lying at the cross-roads 
 whose hands or whose feet have been cut off by some enemy, 
 and thereupon shall kill him he shall be adjudged to pay 
 a fine cf 100 solidi " . These fines varied not only in 
 respect to the extent and result of the injury inflicted 
 but according to the rank and station and race of the victim 
 and occasionally also of the offender. The highest penal- 
 ties attended the murder of the Count or his officers, but 
 discrimination extended also to the persons named in the 
 Code as Rachimburgers and Sachebarcns whose identity and 
 office is the blindest of Germanic problems. Savigny has 
 asserted that the former constituted those of the body of 
 the freemen who assembled in the court of the Hundred for 
 the decision of causes, often described as the Peers by 
 whom as his equals the German had a right to be tried. 
 Savigny further asserted that the Sachebarcns iiexe deputies 
 of the king presiding in the courts, an opinion in ?;hich 
 Sohm. does not concur. He fully adiiits that they were 
 royal officers, and their wergeld or bldiodj-price as large 
 as that of the Count, but he denies to them any judicial 
 
515 
 
 position or authority, and insists that they represented 
 the king within the Hundred for the purpose and the purpose 
 only of GDllecting and receiving the fines due to the 
 Treasury. 
 
 Discrimination extended also to ecclesiastical rank 
 since the murder of a Presbyter, of a Deacon and of a Bishop 
 were specially rated. A more significant and in some 
 respects a more interesting discrimination v;as that founded 
 upon race. If a Roman slew a Frank the fine imposed was 
 two hundred solid! but if a FranI: killed a Roman it was 
 half that where he was a proprietor, and only 45 when he 
 was a tributary. If a Roman killed a Frank who was a King' s 
 vassal the penalty was 600 solidi , but if it was the Roman 
 who fell, even though a guest of the King, the fine was 
 again but one half. If a Roman put a Fran]-: in irons he 
 paid 50 solidi but only 15 was charged where the situation 
 was reversed. If a Roman robbed a Frank he was fined 
 62-| solidd, but if a Frank was the aggressor he paid only 
 30. The discrimination is a fact of some importance. It 
 shows us the relation of the conquering tribes to the 
 Roman provincials beatedj?! into an attitude of forced subm.is- 
 sion; that the victors did not exterminate their foes, but 
 suffered them to live in peace under the new authority; 
 that they even gave them the protection of law, but betrayed 
 
314 
 
 their haughtiness and pride in the constant estimate which 
 made the life of a Frank worth double that of a Roman. It 
 leads also to a needed explanation. There is no more re- 
 markable feature of life in the Middle Ages than the fact 
 that the law was regarded as personal rather than terri- 
 torial; that is, in the very same locality, a dispute be- 
 tween Romans was tried by the Roman law, ons between Franks 
 by the Salic law, one between Lombards or Saxons or West 
 Goths by their own rules, justifying the statement once 
 made by the Bishop Abogardus that five men might be sitting 
 about a table and everyone of them governed by a different 
 law. But gradually in Gaul the Roman law as a distinct 
 system disappeared, was lost, submerged, drowned. It is 
 possible to see why. The Salic law gave many and manifest 
 advantages to those who lived under it, and a man gained 
 the liberty of choosing under what law he would live. Be- 
 fore a choice the law of his birth governed, the law of the 
 wife and children followed his, the slave had the law of his 
 master, the freedman of his patron. But the power of 
 choice operated to give the Salic law more and i-iore a pre- 
 ference until the "Someui law was only retained by the ecclesi- 
 astics against whom there was no discnrimination and who the]». 
 fore had no motive for its abandonment. Hence it is that 
 the Roman survived in the Canon law, but went down before 
 
315 
 
 the barbarian codes except so f 8.r , — and the exception is 
 graver than is generally admitted, — except so far as it 
 silently crept into, modified and affected those laws 
 themselves. Indeed M. Isambert goes so far as to say that 
 onw who knows the Salic law need not imagine that he knows 
 the laws under which at that date the Gallic people lived, 
 for a great number of the inhabitants were governed by the 
 Roman legislation as that was modified by the Catholic 
 clergy and the decrees in council. He adds that if they 
 had been deprived of that protection they woiald have been 
 without remedy and degraded to the level of serfs. Two 
 such legal systems could hardly have operated side by side 
 and within the same territory without largely modifying 
 each other. 
 
 Beyond the two principal classes of wrongs to which 
 we have referred the Salic law defines others which hold 
 a place in modern criminal ©odes. Burglary is described 
 with the necessary element of breaking into the premises: 
 arson, in which the distinction is drawn between setting 
 fire to a house in which persons are sleeping, and burning a 
 barn or corn-crib, a pig-sty or a stable; malicious mis- 
 chief such as girdling trees or carrying off grafts; per- 
 jury and subornation of perjury; hiring one to comm-it murder; 
 and crimes against female virtue. The last are severely 
 
316 
 
 punished. The German wife and the German maiden were held 
 in a respect very far beyond the ordinary slavery and con- 
 tempt. Indeed the law forbade as an insult and punished 
 as a crime acts which in our day awaken no such severity. 
 Thus the Code says if any one shall squeeze the hand or 
 fingers of a girl on conviction he shall pay 15 solidi : if 
 he clasps her arm above the wrfe^ he shall pay 30: if he 
 pinches the arm above the elbow the fine is 35: and if he 
 touches her upon the breast the penalty grows to 45. If 
 any three men carry off a free-born maiden from a house 
 or a scr euna there is a fine of 30 solidd, and where more 
 than three are engaged in the enterprise each of the associ- 
 ates is charged with a separate fine. What is meant by the 
 screuna has been variously stated. The best opinion seems 
 to be that it was a subterranean pit or cellar to which the 
 faiiiily retreated for protection against the rigors of the 
 winter. Their usual habitations were of slight material 
 and easily abandoned but quite unfit for defense against 
 the winter storms. To meet that emergency they dug cellars 
 in the earth covering them over with roofs of straw or 
 manure to vii ich they retreated when the cold becair.e severe. 
 These underground habitations were called screuna and their 
 
 description harmonizes with that of Tacitus. If the abduc- 
 tor 
 tXHH from house or screuna is guilty of rape the penalty is 
 
517 
 
 62 Bolidi, but if he is a bondsman of tiie king or a serf 
 the penalty is death. If the woman goes with him voluntarily 
 she sinks to his own condition of ser-^tude. Beyond these 
 provisions the German girl had always for her protection 
 the ready swords of her father and her warrior brothers. 
 Marriage within certain degrees of relationship was pro- 
 hibited. The nuptials were pronounced wicked with a sis- 
 ter, with the daughter of a brother, indeed, with a relation 
 in any other degree , or with the widow of a brother or an 
 uncle, and the penalty, instead of a fine, was the dissolu- 
 tion of the alli&nce, so that the children born could not 
 inherit and were branded as infamous. The binding force 
 of ^ betrothal was recognized for if one married the girl 
 formally engaged to another a fine was imposed on both 
 parties. 
 
 We have already said that in cases of Homicide the 
 blood -^feud prevailed, but the avenger was bought off by a 
 stipulated composition payable to his relatives, and this 
 was required in addition to the fine adjudged to the trea- 
 sury, Whether such fine was the measure of the wergeld in 
 each particmlar case the Code does not say. It tells us 
 only that where a father has been killed the sons shall 
 receive one half of the blood-price, and the other half 
 shall be divided among the nearest paternal or maternal 
 
318 
 
 relatives, but if there are none such their half shall be 
 paid into the public treasury. The amount of the compoBi- 
 tions for a murder payable to the family of the deceased) 
 that is the wergeld,,does not appear to be expressly and in 
 terms fixed by the law. There are numerous fines imposed 
 but obviously payable to the Fisc, and the amount of the 
 compositions payable to the relatives seems to have been 
 establi^Bd by Custom which the Law did not modify axid with 
 wMch it did not interfere. A single example will Justify 
 that conclusion. The code specifies the fine payable for iM 
 the murder of an Antrustion. He seems to have been a favo- 
 rite and campanion of the King, standing on a level with the 
 Count, but having no heritable dignity which could pass to 
 his descendants. For the murder of such a man the fine 
 assessed is 600 soliSi. But later in the Code (Title 66 
 Art. 2) the composition for the same murder is stated to be 
 1800 solidi, or three times the amount of the fine. Some 
 forms of expression in the Ripuarian lav; lead us to suspect 
 in accord with the example just given, that the fine to the 
 treasury was one-third of the composition, the remaini^g^ 
 two-thirds going to the family of tk the slain. We cannot 
 be sure about it though it seems to be the conclusion of the 
 French critics. But the code tells us also what happens to 
 the slayer when he is unable to pay. The section is entitled 
 
319 
 
 "D® Chrenecruda" , a Frankish term which describes one ele- 
 ment of the ceremony. The guilty tribesiiian first gives up 
 all of the title property which he possesses and that being 
 insufficient to make the legal compensation he produces 
 twelve sworn witnesses to testify that neither upon the 
 earth nor under it has he any more property than he has 
 given. Thereupon he goes into the house, collects dust 
 from each of its four corners, comes cut andji stands on 
 the threshold, and with his left hand throws the dust on 
 his nearest relation. After that , in his shirt, without 
 girdle or shoes, but with a staff in his hand, he shall 
 spring over the hedge and the dust -sprinkled relatives shall 
 pay. If one of them is too poor to bear his proportion he 
 may in turn throw the dust on one who is able. If there 
 2^e none able to pay the slayer is exposed four times before 
 
 the court and then, if no one 001316)8 to his relief, he pays 
 
 later 
 for his crime with his life. In the iia±±a law this death 
 
 penalty was extended to every insolvent without respect 
 
 to the cause or consideration of his debt. The avenger has 
 
 his way. There are special fines for killing a boy under 
 
 ten years of age, or a pregnant woman, or one who has passed 
 
 the age of child-bearing, and also for murder by poisdmrnng 
 
 and for hiring another to commit the crime whether he does 
 
 so or not. Where the death has come from the violence of 
 
320 
 
 some domestic animal we find the sai^e rule which prevailed 
 in the Mosaic law and is enforced in our own; that the owner 
 is liable if he knew the animal was vicious, but may suc- 
 cessfully defend if ignorant of that fact. 
 
 Outside of offenses in the nature of Crimes there 
 are found provisions against trespass, many of which are 
 aimed at the protection of the arable fields from injury- 
 He who broke the fences paid one fine: he who trampled the 
 growing grain another; he who cut it when ripe and carried 
 it off in a cart suffered one penalty, and he who took it 
 awayK on his back another; and it was an offense to be 
 found in the enclosure after sun-down. It cost solidi to 
 take a man down from a gibbet, or remove a head set up on 
 a pole without permission of the Judge ; to use slanderous 
 words or even those of mere abuse, which no law would now 
 punish as a crime but merely leave open to the possible 
 remedy of an action of slander and that limited and giiarded 
 by restrictive rules; as calling a mai inf euiious or a cheat, 
 or a woman aji" harlot, or accusing one of having thrown 
 away his shield in battle. It was eiwrong also to kidnap 
 slaves or entice them from the service of their master, 
 or to enter the freeman's house without leave. This last 
 guardianship of the alod from any intrusi-oa the Germans 
 carried into England and imbedded in the English law. One 
 form of trespass is extremely odd as it respects the fine 
 
321 
 
 imposed. It is enacted, if we translate the very corrupt 
 Latin correctly, that if any one shall climb on to the jpacdc 
 of another's house and shall ride him he shall pay 15 solidi, 
 and when he dismoiints from the horse shall similarly pay 
 15 solidi more. That apparent division of the fine is not 
 made in the original text but appears in the revision of 
 Charlemagne and in some of the recensions preceding. Why 
 the single trespass and the single fine were divided into 
 two component parts it is impossible to say. We can only 
 hazard the guess that the first fine was for the trespass 
 of taking the horse without leave , and the second regarded 
 as compensation for the use of the animal after taking. We 
 know of no other enactment like it, though there are said 
 to be such instances in the Frisian laws. That the v;ealth 
 of the free German was largely in his horses and cattle is 
 appaxent not only from what we know of his history, but from 
 the taaderness of their treatment enjoined by the law even 
 when they were caught trespassing and doing mischief in the 
 harvest. Thus it is said that if any one shall find an 
 animal, either a horse or an ox, in his harvest field he 
 shall not injure the beast severely. If he has done so 
 and confesses he shall restore its value and take the 
 animal he has maimed for his own. If he denies and is con^^ 
 victed he shall be adjudged to pay 15 solidi besides value 
 
>22 
 
 and costs, and if he injures the animal through negligence 
 he must make the saine restitution, f 
 
 The remarkable character of the ancient Germanic 
 procedure can best be developed by tracdng in particular 
 cases the methods of redress. We shall find them on the 
 border line between the arbitrary action of the person 
 wronged and the crude but growing effort of the Law to 
 substitute a regulated remedy for the personal revenge. 
 
 A mere promise seems to have been valueless, good 
 for nothing. To gain any force of its own it was required 
 to take the form of a fides facta , a pledge of faith, pro- 
 bably made with an oath and the lifting of the symbolic rod. 
 It was requisite also that it should fix a precise day of 
 payment or of performance which was regarded as a stipula- 
 tion for the benefit of the creditor, but not at all for 
 the benefit of the debtor. The latter, owing we may say 
 money borrowed, might himself pledge his faith, and that 
 was deemed, after the Roman fashion, a novation; but usual- 
 ly he furnished a surety who pledged his faith for him. 
 That surety beca:ne principally and not collaterally liable 
 and the creditor pursued hira and hin alone. That fides 
 facta, of the debtor or hf his surety, was enforced extra- 
 judicially, and by the creditor himself through what was 
 called a procedure by execution. The creditor at the house 
 

 of the debtor made the testare in the presence of witne.«ses 
 and waited till sunset, — solem collocare , — for the payment 
 demanded. A refusal or neglect to obey the testare brought 
 with it an amend of 15 solidi charged upon the debtor in 
 addition to his debt. Since there was little money in the 
 land and payments generally were made in cattle or slaves, 
 the creditor brought with him some of the Rachimburfeers 
 who might sefve to appraise values. After this demand and 
 refusal execution followed. There is some doubt whether it 
 flowed from the action of the Count as chief of the tiibe 
 or from the ban of the Thunginus. The former seems the 
 more probable though both remedies appear to have existed. 
 The Count seized the movables appraised, and, retaining one 
 third for himself paid the other two thirds to the credi- 
 tor: or the Thunginus pu:^ his ban upon the debtor and his 
 goods and the creditor was then free to seize suid pay him- 
 self from the proceeds. In both cases before the seizure 
 there were two more formal demands of the testare and each 
 time a waiting till sunset for an answer- Wo defense to the 
 creditor's claim seems to have been possible. Yet there 
 was a gusird against possible injustice in the provision that 
 the creditor who neglected to observe the prescribed forms 
 or to whom nothing was really due should be fined, and he 
 was required, when malcing his demand upon Count or Thunginus 
 for execution, to formally pledge his body and goods for botii 
 
3S4 
 
 the regularity and right of his procedure. His Self -Help 
 was no longer unrestrained. He exerted it at his peril, 
 for the debtor in his turn could become ag.^ressor. He could 
 attack the formal act either in its substance or form, and 
 when he did there seems to have been no outcome to the con- 
 troversy over facts in dispute except through the ordeal, 
 or, among the Ripuarian Franks, through the duel. 
 
 There was a similar procedure in cases of bailment. 
 Something aOcin to the Roman ' muliteim and conmiodatum was re- 
 cognized. The duty to return the thing borrowed or its 
 equivalent seems to have been absolute. There is no pro- 
 vision for excuses ar for degrees of care. The bailor 
 proceeded by the te stare . As to what shoiild follow, the 
 Code does not directly say, but Sohn argues very conclusively 
 that the remedy followed the lines of the fide s facta. 
 
 The Salic procedure develop^s itself more fxEsdiy 
 fully and in a more interesting way along the lines of what 
 is called the vindication of a movable. Its example and 
 illustration is a case, often occurring, of the theft of 
 cattle or of slaves. The duty of the owner was to make 
 his loss known at once, and organize a searching party of 
 neighbors to piirsue the thief. That was the first step 
 in the procedure and called "following the trail." The 
 party followed the tracks of ox or slave or of the thief, 
 with some of the skill of an Indian and with an accuraay 
 
325 
 
 born of frequent experience. If the footsteps led to a 
 house the pursuers had a right to enter and search all its 
 rooms. If the house owner objected or resisted he was as- 
 sumed to be the thief and suffered accordingly. If the 
 stolen property was found within three nights from its dis- 
 appearance the owner had a right to seise it at once. The 
 cattle had been branded and the slave was known so that 
 identification was easy and certain. This seizure was called 
 the Anefan R, a word rudely corresponding to our Replevin. 
 The alleged thief, whom we may call the possessor or the 
 defender, could not resist the coercive power of the A nefa ng 
 if the owner at the same time accompanied it with a formal 
 act called Agramire tercia manu. There has been much 
 speculation over the meaning of this phrase and specially 
 over that of the word agramire which occurs often in the 
 Code and in not less than fifteen different forms. The 
 reference to a "third hand" would lead one to suspect that 
 the property was to be put into the hands of gidis interested 
 third person to hold until the question of ownership was 
 decided, and that is Peyne^'s translation. But Siegel has 
 demonstrated and Sohm concurs that the phrase has not that 
 meaning, but revers to the right of the accused to clear 
 himself of the theft by producing what the law calls his 
 "author", that is the vendor from whom he honestly bought 
 it. That author becomes at once the accused, and must pro- 
 
T, 
 
 26 
 
 duce his author or be charged as the thief. The process 
 may run backward through several possessors but will end at 
 last in one who can produce no author and so will be the 
 original thief. It is to this process that the Anefang 
 
 leads and to which the agramire refers. Thus it seeas proto- 
 ];^able that the owner following the trail, and finding his 
 property within three nights may seize it at once, but at 
 the same time, if the accused claims to have bought it 
 honestly, must pledge his faith that he will meet his ad- 
 versary before the court, and so give him opportunity to 
 dear himself of the theft by producing his author and 
 abandoning the thing stolen to its owner. For, during the 
 three days, the pursuer is the sole master of the procedure, 
 and the accused can make no answer except a surrender and 
 the further defense dependant upon the agrairiire of the 
 pursuer. To avail himself of that the accused must appear 
 before the court and either produce his author or suffer 
 the penalty. 
 
 If, however, the pursuBB does not find his property 
 until after the expiration of three nights the control of 
 the procedure passes into the hands of the accused. He 
 may then pledge his faith to meet the pursuer in court 
 and there may do one of two things: he may simply deny 
 
327 
 
 the theft and produce his vendor from whom he honestly ^ 
 bought, in which event he escapes the fine but abandons 
 the property to the claimant, having however a right to 
 recover the market value from the vendor: or he may counter- 
 vindicate as it is termed, that is show an original title in 
 himself. To do that he must prove that he found the property 
 in the alod of his deceased father and that the latter was 
 owner in his lifetime, or he may prove that the cattle were 
 born in his own stable and were of his rearing. In this 
 manner the arbitrary Self -Help of the Anefang gradually passed 
 into a judicial procedure. 
 
 But that judicial procedure was the sole method 
 where the redress sought was for a delict which admitted 
 of no remedy except one against the person of the wrong- 
 doer. The action began with the mannire, the summons to 
 appear before the tribunal. The complainant went to the 
 house of the acxjused, talcing witnesses to observe his formal 
 act, and gave him notice to appear before the Court on a 
 day certain in the future to answer to the complaint. The 
 accused was thus bound to appear unless he was engaged in 
 the s'arvice of the king or had the excuse of illness or 
 a fire which burned his house. Where, however, the tres- 
 passer had been CQUght in the ac'^ , the complainant could at 
 once seize and bind him, and no delay was allowed. He 
 
328 
 
 could be brought instantly before the court, and if that 
 was not in session, a group of the neighbors could be 
 gathered in the fields to dispose of the case promptly. If 
 the accused resisted the binding, — the ligare , — the complain- 
 ant might kill him, and, reporting to the court that he had 
 slain a criminal was relieved from the payment of wergeld 
 to his relations. The proceeding therefore began with the 
 mannire or the ligare. If on the appointed day the accused 
 appeared the complainant stated his cause, of action, and 
 then demanded in certain solemn and formal words that the 
 Rachimburgers should declare the igcw of the case and the 
 court proceed to judgment. This formality was called the 
 fano, and its coercive effect was to compel under pen- 
 
 alty of a fine that the accused should answer and the 
 Rachimburgers adjudge the law. But the etfe<s± of the tangano 
 went further. It compelled the accused to pledge his faith 
 to execute the judgment, that is, on an adjourned day of 
 the court that he would appear again, and then and there 
 either make the composition which the Rachimburgers had 
 adjudged as the proper solvent of the offense or prove his 
 innocence by the ordeal. Very singular indeed was that 
 arbitrary provision. The effecrt; of the tangan o turned ac- 
 cusation into judgment and the accused without any proof of 
 guilt was required to promise to execute the judgment. 
 Assertion on one side and denial on the other at once raised 
 
329 
 
 an issue for which there was no method of determination ex- 
 cept by an appeal to the Divine wisdom throiogh the results 
 of the ordeal. At the adjourned day on the second hearing 
 the parties again appeared, and the test of the not water 
 was applied to settle the question of guilt or innocence. 
 If the accused did not appear or refused composition or 
 the ordeal he was. regarded as contumacious and attacked 
 for his contumacy. The complainant cited him before the 
 king, and then proved, not his cause of aation, but the due 
 and proper performance of all the preliminary formal acts 
 from the mannire and tangano to the judgment rendered and 
 disobeyed. He brought with him the Rachiniburgers who had 
 rendered the judgment, and demanded formally the ban of 
 outlawry after having waited till sunset. Thereupon the 
 king issued the ban. All the goods of the accused becaaie 
 forfeit to the treasury; he was banished to the woods; no 
 one, not even his wife, could give hir.i food or shelter; and 
 any one might kill him with impunity. We thus discover 
 that old Germanic law had an ultimate sanction of great 
 severity and compelling power, and also that the sanction 
 Cduiie from- the power and authority of the king. 
 
 The formalism of this law disclosed itself in another 
 and ver'y interesting way. The Geriaan scholars have taught 
 us that there was a special language of what we iua--- call the 
 
iSO 
 
 pleading, not to be depaxted from except at the peril of 
 defeat and the danger of fines. Thus if the complainant's i 
 cause of action was for a goat killed he must not say 
 goat but instead "the browser of the leek" or "brov/ser of 
 the roses'! if a bull has been driven off he must not say 
 bull but "leader of the army": he must call his dog "the 
 one accustomed to the Qhain" , and his boat "the animal 
 covered with f oar:." : his stag became "the bearer of the 
 marks", his index finger 'tthe shooter of a dart", and his 
 middle finger the "guereisseur" . In demanding a fine of 
 15 solidi he must not say that, but ask for "the aiTiend of 
 a man" : if he claimed <oZ\ solidi he must describe it as 
 "the amend of the maritime counties" : if the sum was 200 
 or 100 solidi he must call it "the silver of man" or "of a 
 Roman", meaning his wertfeld. Still further he must not 
 describe things sued for by their number; he must not claim 
 for the loss of 50 hogs or 25 beeves or 40 sheep or IS 
 horses, but must describe then: in gross as a Sonista, 
 meaning a flock or herd. A possible explanation of this 
 last rule may be found in the fact that the code of the 
 Ripuarian Francs forbids what it names and calls the 
 specific crime of Sonist a. It provides that "if a freeman 
 is found guilty of the crime called Sonista ; that is to say, 
 
if he has carried off a troop of twelve horses with their 
 stallion, of six sows witli their boar, or of twelve cows 
 with their "bull, he shall be condemned to pay 600 solidi 
 besides the value of the flock and the expenses of the 
 pursuit." Such being the terms of the law the party in- 
 jured was bound to follow literally the language of those 
 terms, and so to charge a Sonista in order to indicate 
 the precise law which he claimed to enforce. We shall 
 see an equally narrow and rigid rule in the Roman procedure. 
 Very wisely does Sohn call these rules "dangerous." 
 
 Such formalism did not confine itself to the details 
 of a litigati-n. It dominated acts which were outside of 
 that domain. For example, a man joould breal: the tie which 
 bound hiu to the group of his kin, but could only do so by 
 a public ceremony and in ov.en court. He held three sticks 
 over his head and broke then into four parts, casting them ^ 
 down before the tribunal, and then, in a solemn form of 
 words, abjured his relations. After that, if one of them 
 was killed, he lost all right to a share of the consequent 
 wergel^ and it was forfeited to the treasury. Again: if a 
 man wished to m.arry a widov? he was required to come before 
 the court with three witnesses. The text uses the puzaling 
 expression "and in that court they ought to have a shield 
 and three men to demand three causes." Henderson* 3 trans- 
 
'X'ZO 
 
 lation ^vhich we have heretofore cited is entirely unsatis- 
 factory. The best explanation known to us is- that of 
 ''^ Peyifd who cites for it the authoritji of Marchangy. The 
 buckler was lifted in the court as an emblem of protection 
 and defense, a symbol of its power. It illustrates in one 
 direction the remark of Tacitus about the Germans: "They 
 do nothing unless armed." The last clause of the text secures 
 the publicity of the marriage application. The suitor must 
 appear before the court on a day when not less than three 
 men are there prosecuting three litigations. The suitor had 
 to bring with him three solidi and a denarium and pay it 
 over as a dowry fine to the relations in a fixed order of 
 succession running down to the sixth degree. If he ful- 
 filled these formalities he could have his widow: if he 
 married her without he was punished by a fine. The origin 
 of these proceedings has been disputed. The explanation 
 given by the Frencdi commentators seems to be the most 
 probable. That offered by Peyr^ is that the word Reipus 
 which defines the procedure, means the price paid for the 
 widow; a remnant of the original habit of buying a wife of 
 her family, and for which the words of Tacitus are cited, — 
 "the wife does not bring a dowry to the husband, he brings 
 it to the wife in presence of her parents and the neighbors 
 
r- rr IT 
 
 who approve the gift." Ducauge asserts., however, that 
 among the Gauls where one married a widow he was required 
 to m8Ll?:e a present to the young men of the village, and, if 
 he refused, was compelled to submit to the humiliation of 
 a nocturnal concert "fort pen harmonieux" , — very little 
 harmonious. The rough custom has had an occasional survival 
 to our own day, though those engaged in it do not realize 
 that they are acting the part of Gallic barbarians. 
 
 The Salic code also guarded the freedom and the 
 safety of the roads; imposing a fine where one embarrassed 
 or obstructed the passage of a man or a woman of free condi- 
 tion, or blocked the approach to a mill. It punished him 
 who broke down enclosures, or dro^e his cart over culti- 
 vated fields, or becaiv^e a receiver of stolen goods, It com- 
 pelled the trespasser v/ho without the owner's consent cut 
 off the tail I'of a horse to pay the value of the animal, 
 and if he denied the accusation and yet was convicted he 
 incurred a fine of fifteen solidi more. It imposed an 
 amend upon the volatile youth who, after having formally 
 demanded a girl in marriage, changed his mind and refused 
 to accept her. 
 
 There are some interesting provisions relating to 
 the slave which indicate the master's recognized responsi- 
 bility for the acts of his slave and the general consequences 
 of the latter '-s servitude. We have said already that the 
 
534 
 
 slave who has stolen property of the value of more than 
 two denarii was punished by 120 blows of the rod unless he 
 or his master should buy off the penalty by the payment of 
 six solidi. BU-t the important provision is added that the 
 master shall restore the value of the thing stolen. Again: 
 there is a provision that where a slave has had illicit inter- 
 course with a woman of his own condition and who has died in 
 consequence of it, not only shall he suffer the prescribed 
 penalty, "but the master must pay to her owner the value of 
 the dead slave.' And still again: if a slave kills a free- 
 man the murderer is to be delivered to the parents of the 
 dead man in place of the one half of the composition due and 
 the master is required to pay the other half. It is obvious 
 from these provisions that the master is liable not merely 
 for the negligent acts of the slave, but even for his posi- 
 tive and intentional vvrongs though committed out of the 
 master's sight and against his will. The legal identity of 
 the two for purposes of reparation is complete. What 
 became of that identity, how it was lost, and into what it 
 was changed we shall see herea.fter. 
 
 There are also Salic rules which indicate that the 
 slave could be tortured for the x-urpose of forcing frciii him 
 a confession of guilt. We do not know the esact process 
 since the allusion to it assumes a knowledge of it which 
 we do not have. It is first provided that the slave accused 
 
336 
 
 of theft shall be laid upon a bench and sub;jected to 12C 
 blows of the rod which as we have seen was the usual and 
 the normal punishment: if he then refuses to confess he may 
 be subjected to the greater punishment, ( ma.jora supplicia ) 
 even against the will of the master, but upon condition 
 that the accuser shall first deposit as a pledge or guaranty 
 the value of the slave. Evidently the further torture put 
 the life of the slave in peril for the accuser is warned 
 to count his blows and the master to watch his pled^ . 
 
 We discover in the law itself no direct or espress 
 provision for the enfranchisement of a slave though an ex- 
 isting method is assumed without being described. For we 
 find a law which declares that "whoever shall enfranchise 
 before the king by the piece of money a slave who does not 
 belong to him shall be compelled to pay 3 5 solid! and ought 
 to pay to the master of the slave the value of the latter 
 and of all t iat he possessed." The provision seems to in- 
 dicate that the sld-ve secured his liberty by reason of the 
 royal- emancipation though through the intervention of a 
 trespasser, and the owner •s remedy was to compel from that 
 trespasser payment of the full value of the slave and of all 
 his i)elongings. The form of the ceremony is said to have 
 
 been that the emancipator tosses a piece of i!.oney in the 
 
 it 
 air and puts/into the hand of the slave saying that he there- 
 
 ig 
 
 by sets hiiu free. There is a similar provision respecting 
 the emancipation of a lete , (lidum), who has fought for the 
 
master in his v/ars, and -ivhose position, much above that of 
 the slave , is indicated by the larger penalty of 100 soladi 
 imposed upon him who sets the vassal free without right or 
 authority. 
 
 It «$ somewhat surprising that the Salic code only 
 in a single instance and that in an incidental way refers 
 to the system of co-jurants or compurgatory oaths which are 
 marked and constant features of the Ripugtrian law, and 
 which the Germanic tribes carried into England. That law 
 is full of allusions to the systen;. For blows and wunds 
 and fractures the successful defence required six co-jurants, 
 
 for murder of a freeman twelve, for that of a woman settled 
 on the domains of the king or in the sefvice of the church 
 thirty-six, for killing an Antrustion seventy-two. Indeed 
 numbers were prescribed for almost every sort of v;rong. 
 How or. why it happened that this method of defense, so com- 
 mon in one branch of the race was scarcely known in the other 
 or at least unrecognized in its laws we/ have found it im- 
 possible to ascertain. It shows however that the Norman 
 ordeal of trial by battle and the Seixon procedure by com- 
 purgatory oaths had their origin among the Ripuarian Francs. 
 Finally, the Salic code recognized wi-ferffcraft . It is 
 not strange that it did. All the world over that belief 
 prevailed, and very much later even crossed the ocean with 
 
-o7 
 
 the Puritans. It is quite natural therefore to find in 
 the Salic law such provisions as these : whoever shall cause 
 the death of a person by giving him to drink the brewage 
 of certain herbs shall 'ce fined 200 solidi: if the drink 
 given does not produce death the fine is 62-g- and any one 
 who aids in the sorcery shall pay the sa^ae fine : whoever 
 gives a brewage to a woman to render her barren shall pay 
 that sum: and whoever shall call a man a poisoner, that is 
 to say, a sorcerer employed in earring the kettle in which 
 the witches brew their enchantments, and shall not prove the 
 charge shall be fined 62-|- solidi: whoever shall cast a spell 
 or charm upon a man shall be condemned in the same amount. 
 How frequently or with how much severity these provisions 
 were applied we do not know. It is to the credit of the 
 law that it did not hang or drown or burn the witch as more 
 civilized people have done. 
 
 We do not suppose ourselves to have exhausted this 
 ancient code. Some of it will remain blind forever. But 
 we have gone feo: enough to disclose She early struggle to 
 find a solution for disputed claims, and to substitute the 
 peaceful arbitrament of Law for the rough remedy of Force. 
 
«,• t> CJ 
 
 XI. 
 
 THE TWELVE TABLES . 
 
 The Roman law of the Twelve Tables has come down to 
 us in fragments; so faw and bo imperfect as to make only an 
 outline possible. What has been accomplished is the result 
 of a careful stij^dy of the Jurists and classic writers who 
 often cited its terms, and sometimes may reasonably be sup- 
 posed to have copied them literally. Great help in the re- 
 construction was derived from, the m^arvellous recovery of a 
 manuscript of Gaius which proved to be a learned and copious 
 commentary on the Roman law. Niebuhr in 1816 found at 
 Verona a palimpsest, or parchment, the origi'nal writing upon 
 which had been obliterated, and its place taken by letters 
 of St. Jerome and a brief work on monkish theology. The 
 next year Savigny called special attention to this manu- 
 script, consisting of 1E6 leaves which had been scraped on 
 one side and washed on the other leaving only the last page 
 intacEt. Three German scholars were employed by the 
 Academy of Berlin to decipher the originad, and after months 
 of patient labor, conducted with wonderful ir^enuity and skill 
 they succeeded in the effort, except as to occasional sections 
 or lines which were gone beyond recovery, and repcoduced 
 
^3 
 
 Q 
 
 for us a commentary of the very highest value. Who this 
 Gaius v/as is involved, in a singular uncertainty. As an 
 author he is not once mentioned by the Jurists or histo- 
 rians of his time. He is supposed to have been of Greek 
 descent, and certainly was quite familiar with the Spartan 
 and Athenian law; but it was not until long after his 
 death that his name all at once loomed up in the Theodosian 
 code as one of the five Jurists whose opinions ?/ere to be 
 regarded as containing an authorised exposition of the law. 
 With the valuable help of his commentaries and the aid of 
 Aulus Gellius and of Gicer^o, who make frequent reference 
 to the Twelve Tables, and of the Breviary of Alaric, it 
 has become possible to piece out the fragments that remain 
 and restore them at least in substance. 
 
 They were adopted after the expulsion of Tarquin 
 8.nd under the rule of the Decemvirs and about three hundred 
 years from the founding of the City. They were born of a 
 quarrel between Patrician and Plebeian, between those who 
 belonged to some Roman Gens with its pride of ancestry, its 
 noble lineage, and its monopoly of official power, and the 
 multitude of common people long oppressed and abused, who 
 had at last learned their strength and were stidWggling for 
 the protection so steadily denied. They began the conflict 
 under an enormous disadvantage . Such lav; as there was seems 
 
340 
 
 to have been founded upon custom, and, handed down by tradi- 
 tion, rested only in the memory of its custodians. These in 
 the main were the Pontiffs, always chosen from the ranks of 
 the'ratricians, and who had hedged it about with precise and 
 technical formalities, the slightest mistake in which 
 vitiated the whole process. Obviously, a law thus resting 
 only in the memory of a selected class was likely to be 
 what that class chose to make it, and to serve as a con- 
 venient instrument for the oppression of the commons who were 
 kept in ignorance of its rules. And so i.the Plebeian leader- 
 ship plainly saw that two things were mital conditions of 
 success: and these were, first, that the people should know 
 exactly what the law was in order to prevent its perversion 
 by the Patricians when it gave protection, and to understand 
 its deficiencies where if failed, with a view to supplying 
 the imperative need: and, second, that the Plebs should have 
 officers of their own charged with their defense against 
 oppression, and representative of their needs and wishes. 
 This last necessity was met by the appointment of Tribunes 
 who at first could only appear at the threshold of the 
 Senate, but later grew powerful by bold and persistent 
 aggression. The first remedy required a fixed and known 
 and therefore a written code, and at last it caitie within 
 the popular reach. How this was accomplished we know in 
 
341 
 
 a general way , while many of the details are open to dispute. 
 It is said that three coiranissioners were sent to Athens to 
 study and investigate the Grecian law: that the Quaestors 
 adorned and made brilliant the departing ships to impress the 
 eyes of the stra.ngers : -that the travelers were gone for two 
 years: that on their return they framed and promulgated ten 
 Tables which were explained and advocated by Hermodorus, 
 an Ephesian exile, to whom a statue was afterwards erected: 
 that ^to these three commissioners seven were added, and to the 
 body thus formed was given the whole power of the State: that 
 two more Tables were subsequently framed: and that the Twelve 
 became the law of Rome by the vote and approval of the 
 Comitia and of the Senate. Much of this statement has met with 
 distrust and denial, but the main and essential facts are undis- 
 puted. 
 
 The first three Tables are occupied substantially 
 with the law of Procedure. <^r modern nomenclature would de- 
 vote the first to Process, the second to the Trial, and the 
 third to Execution. The first Table provides for bringing the 
 defendant into court. It declares, if you summon a man before a 
 magistrate and he refuses to go take witnesses and arrest him. 
 If he attempts evasion or flight lay hands upon him., and if he 
 be old or sick provide the m.eans of transport, though that need 
 
342 
 
 a 
 
 not be /covered carriage. Evidently, the personal presence of 
 
 the defendant was essential, and so much of the archaic habit of 
 Self-tie Ip reinained as to require the plaintiff himself to bring 
 his adversary into court even if need be by the application of 
 force. The complainant might stand before the defendants door 
 on three market days and howl: that is loudly and publieiy 
 summon him to appear, and after that the reluctant debtor could 
 be forcibly seized and dragged to the bar. This method was 
 probably very old for we find in the Hindu law a similar one, 
 known as sitting d'harma or fasting at the debtor's door. Once 
 before the court some very singular things occurred. The 
 plaintiff was required to hold in one hand a bit of straw as a 
 memento of the lance of the Quirites, to touch with the other 
 the object and then to defy his adversary. The appointed Judex 
 or referee could only sit on certain days about which the suitor 
 was likely to know but littlel These were days fasti and days 
 refasti : on the former the trial could proceed; on the latter 
 no judgment could be given. Of the former there were 190 days 
 in the year, but they depended upon the calendar in the hands of 
 the Pontiff, and were shifting and movable. 
 
 It was the first duty of the magistrate to bring 
 the parties to an amicable settlement. If they agree, says the 
 law , the suit shall be stopped. But if no compromise could 
 be effected then before midday the cau/se was entered for 
 
545 
 
 trial, and before sunset the magistrate either rendered 
 a jjudgment or sent the case to a Judex or referee for trial. 
 If before him there was a necessary delay of the hearing 
 there was need of a vindes who answered to our bail in a 
 civil action. The 9th section of the firit table contains 
 but two words, " vade s , subvade s " , and refers to what was 
 called the Vadimonimi . For an explanation we must depend 
 upon Gaius. When a judex was appointed sureties were re- 
 quired for the future appearance of the parties, and if the 
 quarrel was over the ownership of some property brought 
 into court its custody was committed temporarily to one 
 or the other of the parties upon giving a surety for its 
 proper delivery after judgment. The resemblance of the 
 proceeding to the modern action of replevin is obvious. 
 
 The second table has its first section a blank but 
 was devoted to a recognition of what was known as the 
 Sac ramentum which was the first of five forms of Procedure 
 existing at the date of the Twelve Tables or adopted soon 
 thereafter, and which were known as actiones legi s, or pro- 
 ceedings for carrying on a litigation: and these may be 
 explained before we go further with our study of the Tables. 
 The word actione s, we should warn, does not mean merely a 
 technical action at law as we understand the phrase, but 
 has the broader scope of a juristic proceeding. Neverthe- 
 
344 
 
 less, some of these actiones were in fact and in form 
 suits at law, while those which were not becarne such or 
 might become such in the progress of the controversy- 
 
 The Sac r amen turn , which was the first of these, was 
 in the nature and form of a wager. Each party put into 
 the hands of the Pontiff a sum of money as a stalce or deposit 
 and which the unsuccessful psirty forfeited to the Pontifical 
 college for the expenses of the reguleir sacrifices. 
 Gaius tells us that the Sacr amentum was the general pro- 
 cedure , always to be adopted where no other mode was 
 specially prescribed Tiy law. He adds that, in what were 
 known as real actions, movables or animals that were 
 brought or led into court were claimed in the presence 
 of the Praetor in the following fashion. The claimant held 
 a wand, epftq, grasping the slave or thing over which he 
 claimed dominion, said: "This man I claim as pro;iri9tor 
 by the law of the Qurites. So, as I said, see.' I have 
 covered hin with my spear." Whereupon he laid his hand 
 upon the man. The adversary then said the same words and 
 performed the same acts. After each had thus claimed 
 dominion the Praetor said: "Both claimants quit your holdj" 
 and both quitted hold. Then the first claimant said, ad- 
 dressing the second: "jSlnsvrer me: will you state on what 
 title you found your claim;" and he replied, "I perfected 
 
545 
 
 my title when I covered him with my spear." Then the 
 first claimant said: "Since you claim him in defiance of 
 law I challenge yon to stajce five hundred asses on the issue 
 of the trial;" to which the other answered, "I accept 
 the challenge." The As was an early form of Roman money, 
 jt was a bronze ingot mainly consisting of copper but al- 
 loyed with a small proportion of tin. It passed by weight 
 and at first was twelve ounces of the metal or an exact 
 pound. One laay suspect that the English pound sterling 
 got its name from this Roman idea of metal valued by its 
 weight . But as a unit of value it contninued to diminish 
 until within 200 years B. 0. by the Flaminian law it be- 
 came but a single ounce, and thereafter ^rew to be even 
 less. In the formula described we see very plainly how 
 the old title by force lifts its angry head even when 
 yielding to the peaceful substitute of an arbitration, 
 jt is a struggle for possession. Both parties cling to 
 the object claimed and assert a dominant possession which 
 would end in fight but for the interference of the law in 
 the person of the Praetor. 
 
 There were in truth two proceedings: one in .jure 
 that is before the magistrate alone , the other in .-judicium . 
 that is before the ^- judex from whom caiue the ultimate judg- 
 ment. In the first of these it was deteriuined necessarily 
 
346 
 
 whether the subject-matter of the complaint furnished a 
 ground of action at all, and next the nature of the claim 
 and the forms under which it could be enforced. That 
 having besn decided favorably to the complainant the 
 parties joined issue, a process which was described as 
 litis contestatio n thereby franaing the fighting point of 
 the quarrel. This litis contestatio was said to consume 
 the original cause of action which could never again 
 have vitality. The issue was reached by a prescribed form 
 of words which we have already repeated as attending the 
 Sacraiaentum , and thereupon both parties solemnly appealed 
 to their witnesses, the ceremony being understood to mean 
 that they submitted their rights to the ultimate judgment 
 to be rendered. At this point the magistrate had but one 
 jurisdiction left, and that was to appoint the judex and 
 leave to him the hearing of tl^e-witnesses and the rendition 
 of the judgment. The action of our own courts in^ a 
 referable case has grown beyond this Roman porcedure only 
 by franiing the issues in writing, and as a consequence 
 establishing similar though different rules of pleading. 
 But it sometiiiies happened that a cleaB: issue grew 
 out of the very facts of the complaint made, so that no 
 wager was needed to present a point for adjudication. We 
 suppose such cases to have besn those in which a statutory 
 
'Z 
 
 47 
 
 right had been invaded, and so a specific tort or wrong 
 had been suffered. In such a case the complainant needed 
 not to offer a wager in order to set moving the wheels of 
 litigation, but was entitled to demand at once of the 
 magistrate the appointment of a judex. This was the second 
 of the permitted actiones and was described as a proceeding 
 per .judicis postulatione m. for the demand of a referee. But 
 it made close work for the complainant. He must recite the 
 precise words of the statute violated or fail and be dissi 
 missed. Gaius cites such a case. The statute forbade 
 the cutting of an owner ts trees, — ar bore s. One whose vines 
 had been cut used the ^.vord vines, — vi tes, itnd so v/as 
 denied a referee and thrown out of court, or as we would 
 say, beaten on a demurrer. 
 
 A third actio or proceeding also escaped the need 
 of a wager. This was the actio p er co ndictio nem. It ap- 
 plied, however, only to cases in which a certain and fixed 
 sum of money was claimed, or some specific thing was sought 
 to be recovered. It set the exajviple for Debt add Detinue, 
 which long retained the characteristics and restrictions of 
 their originals. It had its own peculiar dangers. If tne 
 claim proved to be noi> exactly the sum demanded, or the 
 thing sought was seen to be uncertain and doubtful the 
 complainant failed as having chosen the 7;rong remedy. If 
 
548 
 
 however, his right prima facie was complete he could not 
 have the immediate appointment of a referee. The parties 
 had to agree that one should toe appointed by the court at 
 the end of thirty days, and the complainant gave formal 
 notice to his adversary to appear at that date and submit 
 to the appointment. From this formal agreement the proceed- 
 ing took its nair.e , — co ndictio , vihlch means an agreement or 
 convention. 
 
 The fourth actio or proceeding was 7/hat we should 
 now regard as an esecution or process for enforcing a 
 judgment, and was described in the third of the Twelve 
 Tables. It was termed the manus i njectio, or laying on of 
 hands, and meant a forcible seizure of the debtor, con- 
 clusively indebted by judgment or confession, in the pre- 
 sence and under the authority of the magistrate after ex- 
 piration of thirty days of grace. Then if the debt be not 
 paid or surety for its payment provided the Table proceeds: 
 "The creditor shall take the debtor,. put him into chains 
 or into the stocks, the weight of the chains not to exceed 
 fifteeri pounds but less at the creditor's wil^. The debtor 
 shall be at liberty to live as he thinks fit provided it 
 be at his own expense. In the event of his being unable 
 to provide his ov;n nourishm.ent the creditor, in whose cus- 
 tody he is, shall supply him r/ith one pound of bread daily." 
 
349 
 
 Then the la?; ordains that during sixty days he shall be 
 three times exposed on marlcst days with a proclai.iation of -ikji. 
 amount for which he is indebted, and after the third market 
 day may be sold beyond the Tiber or put to death. Where 
 there are several creditors the Code aads : "His body may 
 be divided and anyone taking' more|f than his just share 
 shall be held guiltless." The severity and terrible 
 cruelty of this provision has led to a milder reading. 
 Bynkershock and Dr. Taylor insist that the phrase " partis 
 secanto " does not mean the cutting of the debtor's body 
 into fragments but merely the division of his property, 
 and Lee adopts that translation. Yet the case is one where 
 obviously there is no property and are no friends, and so 
 where the debtor's body is the sole recourse: and the mean- 
 ing is made quite plain by the final phaase that any one 
 taking more than his share shall be held guiltless. That 
 never would have been said of a division of property, for, 
 one creditor seizing from the assets not only the equiva- 
 lent of the debt, but as much more as he pleased would be 
 simply robbing the other creditors. Such a violent scramble 
 for a share of the wreck would be a return to barbarism. It 
 is argued that a provision so merciless and savage can 
 hardly be supposed to have even existed. But concededly 
 the debtor might be put in chains and sold as a slave. 
 las death so very much worse? And would a state of society 
 
which cooly authorized the killing of deformed children, 
 and gave the father power over the life of the son shrink 
 from dooming a bankrupt to death? And what shall our 
 doubters say to the Salic And Ripuarian la?; which we have 
 already seen devoting to the sword of the creditor, not 
 only the slayer who could not pay his wergeld, but the in- 
 solvent owing any debt and of whatever origin? Gellius, 
 Quintellian, and Tertullian, all construed this law liter- 
 ally, and add that the Roman habit mitigated its severity, 
 and that no instance of the killing allowed ever once oc- 
 curred. That is quite probable. The debtor as a slave 
 was worth money and could pay by his labor, but the debtor 
 dead was worthless and the debt lost. 
 
 The fifth and last of the a ctionee l eg ; i3 was very 
 much akin to and may have been the prototype of that dis- 
 tress for rent which has only in our own time disappeared. 
 It was called the Pig;noris Capio or seizure of a pledge, 
 and seems to have been a remnant of the archaic doctrine of 
 Self-Hslp. Certain classes of creditors were allowed to 
 seize the property of their debtors as security for or in 
 extinguishment of the sums which were their due. The stej: 
 preceded any recovery of judgment and was the arbitrary 
 act of the creditor. The 13th Table specifically allows 
 it in the case of sacred debts. Where one buys an animal 
 
351 
 
 to be sacrificed upon the altar as a victim and. owes the 
 purchase money, or where one lets to hire a beast of burden 
 to get the means of providing a sacrifice and the hirer 
 owes the debt the creditor may seise the property as a 
 pledge. Gaius says tha^ by the customary law the soldier 
 might thus distrain upon his paymaster for his pay, and 
 the knight for his forage, and the farmer of the revenue 
 for the public tsises. And in the Breton la?-" every action 
 begins with this sort of a distaaint. 
 
 This Procedure of the Roman law, which exhausts and 
 more than exhausts the first three tables, show us the 
 rigid and narrow and inelastic system which existed before 
 the Praetorian law began its march of improvement, and will 
 enable us to understand the changes that come and the 
 method and means of a marvellous jural revolution. 
 
 Passing now from Procedure we come to the fourth 
 Table which busies itself with the Pater f ami lias , or the 
 power and authority of the family Head. It took tv;o forms: 
 one in respect to persons and one in respect to property. 
 Over the persons of his children the father had the power 
 of life and death and night sell theia if he pleased. Of 
 course he had the lesser power of castigation and punish- 
 ment. This authority lasted during his whole life and re- 
 mained e-wen though the son became officially the superior. 
 
352 
 
 This patria potestas . while not allowed, to override the 
 public law, since the son as General might comaand the 
 father in the field, or as Consul or Praetor pass upon his 
 civil liability, did yet remain and exist outside of the 
 public function. As to property the children could have 
 none for everything belonged to the Father. What they 
 earned was his; what was due to them he could recover; 
 and they on their part could not bind him by any contract 
 obligation v/hatever. Two consequences followed: one that 
 the duty of their support came upon him, and the other that 
 he was held liable for their torts or wrongs. Neither 
 rule rested on any ethical principle, — that had not come, — 
 but both sprang naturally from the sheer necessities of the 
 situation. The child, unable to earn anything for hii..self , 
 must freeze or starve unless the Father furnished clothing 
 or food, and the children , having no property out of which 
 to pay a fine or make compensation, could commit a tres- 
 pass with impunity unless the Father was made answerable. 
 He had the absolute control and means of restitution and 
 so th3 tort was deemed his unless he surrendered to the 
 complainant's revenge the person or thing which caused the 
 injury, and the responsibility followed as it does to-day 
 where a master answers for the negligence of his servants. 
 He could dictate the marriage of his children; he could 
 
355 
 
 divorce thejn if he pleased: he could transfer them to 
 another family by adoption. The wife came under this 
 authority and was regarded as her husband's daughter and 
 so the sister of her own children. And thus wife, children, 
 and slaves were all the absolute property of the Father: 
 in manu , under his hand: that savage Hand v/hich we sav; in 
 the stone age making the law of the household: that swift 
 barbarian Hand ruling all with, axe or spear: that selfish 
 iron Hand which held in servitude the Hebrew and Hindu 
 boy and tougiBned the Spartan youth with its relentless 
 discipline. There wa.s some relief however. The Table or- 
 dains that when a Father has sold his son three times the 
 latter is freed from the jjaternal power, and out of this 
 limitation came a ficticious sale three times repeated 
 when the Father wished or was willing to set him free. 
 The first sal^conducted in the form of a mancipation put 
 the son under the potestas of the purchaser, from v/hich the 
 latter by another process emancipated him. The result neves- 
 ths^ess on the first two sales was only to revive the 
 potestas of the Father, but on the third sale the potestas 
 did not revive and the son became free. And yet, to pre- 
 serve the Father's right of succession to the property of 
 the son the last sale was accompanied by a Trust that the 
 buyer should re-sell to the Father who should himself 
 
354 
 
 manumit the son and so save the succession. This was an 
 awkward procedure, full of needed fictions, which Justinian 
 modified into an em^ipation before a magistrate : father 
 and son appearing and consenting. But sor:ie degree of 
 emancipation appeared along the line of what was known as 
 the Peculiuiiu This was at first some small or trifling 
 article or sum of mone^^ which the master allowed his 
 slave to possess, and then was applied to a similar posses- 
 sion in the hands of the son. Its first extension was to 
 the spoils of the son won in battle and denominated 
 oastrense pecu lium; and next to the pay or proceeds of 
 official position called quasi castren se . Som-e slight 
 recognition of an independent right of the son is also 
 found in the fact that he could maintain an action in his 
 own name for a personal insult or injury, could obtain an 
 interdict quod vi aut clam for an in^jury to movables or 
 immovables, could recover a deposit, or a thing gratuitous- 
 ly loaned for use. It seeius also probable that by reason 
 of his lawful interest in his peculium that he could maintain 
 other actions in its defense or grcv/ing out of relations 
 founded upon it or in which it was the essential element. 
 But v;ith these exceptions all that he had and all that he 
 earned was the property of the father. 
 
;55 
 
 Tlis fifth Table introduced the important subject of 
 Tutelage and Inheritance. .,It decrees the perpetual tutelage 
 of women, except that the Vestal Virgins, in deference to 
 their religious character and duties were relieved from it 
 as also the paternal power. All other women were subject 
 to a perpetual guardianship. Poor things.' we want to 
 know w^iy. Gaius says "on account of the weakness of their 
 minds." The tutelage over an infant son ended at the age 
 of puberty which was fi:^d at fifteen, but never ended during 
 the whole life of the daughter. Gaius hii/self evidently 
 disapproved of this tyrannical Custom, and had no faith 
 in the assigned reason: and Maine puts it upon the more 
 plausible ground that the son escaped from tutelage after 
 his Father's death as soon as he, the son, was capable of 
 being a parent and founding a House, but the daughter 
 never could found a House and so was never enfranchised. 
 The maxim was " mulier est finis famil iae," — a woman is the 
 terminus of the family. Her descend</ants were cognates 
 and not agnates, and 14. there were no agna.tes the guardian- 
 ship went to the Gentiles or members of the paternal Gens. 
 The Code is a little sarcastic when it applies the sai.ie rule 
 to an Idiotl^ 
 
 Next as to the Inheritance. It descended to the agnate§ 
 that is^ (down the male line. The descendants by the female 
 
.■z.RR 
 
 56 
 
 line were Cognates. On failure of these agnates the Gentiles 
 succeeded, ■sat the Father might make a v/ill and the pro-, 
 vision allowing it was broad enough to enable the testator 
 to dictate the succession. It reads thus: "The testament 
 of the Father shall be law concerning his property and the 
 tutelage thereof." There were no limitations on the face ■ 
 of the text, but those founded on habit and custon; were 
 numerous and severe, and what was then meant by a will was 
 something widely different from our conception of the in- 
 strument. The modern idea of it is that it takes effect 
 only upon the death of the testator, that it ^f is or may 
 be secret, and that it is revocable while the maker lives. 
 The early Roman will had none of these characteristics. It 
 took effect at once while the testator survived; it was 
 a public act before the assembled comitia; ano. it was not 
 revocable by the maker. Neither was it in its essence 
 and primal purpose a mere devolution of property. It was 
 the appointment by the Head of the Family of a new Head or 
 Chieftain to take his place, to continue the organism un- 
 broken, to serve as the master succeeding, to be the uni- 
 versal sucoBssor. Pack and compress into one the modern 
 executor and administrator and the legatee and devisee 
 and you will Approach a conception of that universal succes- 
 sor. He was called suus heredes, g'pheir of his own, — heir 
 
357 
 
 to himself, — heir necessarius, the necessary and inevitable 
 successor. It is impossible to dislodge him except through 
 words in the v;ill of positive disinherison. He must be shut 
 out specifically and by naiue, and class or group words suf- 
 ficient to bar out others will not exclude him, and unless 
 so excluded the will is void. No ingenuity can explain 
 these rules except on the theory of that fainily or com- 
 munal ownership which preceded the individual dominion. 
 The son was regarded as one of the owners of the fainily 
 property managed by the Father for the use and benefit of 
 all, and when he died the son in his potestas becaiue sui 
 £uris, his own master, independent, and so took the 
 Father's place; did not inherit from him, but took possds- 
 sion of his own. His succession for that reason carried 
 with it duties and burdens as well as Rights. If there 
 were debts the familia j^ owed them, the property had re- 
 ceived the benefit which they represented and the successor 
 who took it was liable for all, and must apply his own 
 separate property, if need be and if he had any to the 
 burden of payment. It is no wonder therefore that the will 
 had to be approved in the comitia curiata, and that the 
 universal successor knew of its execution. 
 
 Undoubtedly, in the absence of direct heirs, the 
 
358 
 
 result sought was at first accomplished by the process cf 
 AdQ-ption or Amogation. It was possible by these fictions 
 to create a direct heir upon v/hoin the pat iia potes tas would 
 attach and who would be authorized to celebrate the sacred 
 rites upon which the safety and continuity of the Faniily 
 were supposed to depend. And so important a matter wSts 
 itself the subject of a public ceremony. But that cere- 
 mony was complicated and awkward, and involved publicity 
 and immediate effect. These difficulties were relieved by 
 the new form of will which prevailed in the time of Gaius 
 and when writing had become comiuon. That new fori-i was de- 
 scribed by the phrase empt or far uilia e ,the buyer of the estate. 
 The testator wrote his will upon tablet? which y/ere closed, 
 and so withheld from public knowledge, with the tablets 
 in his hand he appeared before the Praetor vath five chosen 
 v/itnesses, a libripen, and the selected friend to act as 
 purchaser, and, through the customary lorus of the bronze 
 and balance, sold his entire familia to the buyer, but im- 
 posed upon him a trust that he should hold the estate ac- 
 cording to the teriAS of the will. This declaxation of trust 
 was called the nuncupat io , and the whole process is sunm'ied 
 up pithily in Leage's clerar and useful book on "Roman 
 Private Lav" by the following citation from P.oby : "In 
 short the mancipation is a f>-rmal ccnsequanae in trust for 
 the uses of the will." It took effect only on the testator's 
 
559 
 
 death. The witnesses attached liEaikixxfiiK their seals 
 to the tablets, and the Praetor finally dispensed with the 
 mancipatory forniS and made valid the will with its seven 
 seals. It was this Praetorian Will, either alone or in 
 connection with the Geririanic will, which served as the 
 origin or prototype of the will of to-day: and it was due 
 to the broad lan^^uage of the Tables that legacies becea-.e 
 possible and in the end a simple devolution of property 
 and property rights. How far and hov; swiftly the habit of 
 making a will, with its seven v;itnesses and seven seals, 
 extended may be :iudged from the soaev/hat humorous and even 
 caustic comment of Cato, the Censor. Pxiitarch represents 
 him as saying that he never repented of but three things 
 in his life ; one of \vhich was that he had ever trusted 
 his wife with a secret; a second that he had once gone by 
 water when he might as well have gone by land; and the 
 third that he had passed over one day v:ithout having a 
 will by him. That last ariiciety sprang from the Roman's 
 dread that for lack of a successor the Fai.dly fires might 
 go out in ashes, and the cessation of the hearth -worship 
 leave the dead ancestors unhonored and their shades wander- 
 ing without rest on the Stygian shores: but even \vhere 
 there were sons and daughters Maine has successfully explained 
 how, without a 'will, the emancipated son was cut off from 
 the inheritance in some emergencies, and how preference of 
 
>G0 
 
 the Agnates uight leave unprovided those Cognates whose 
 descent came through the v.rouen of the Family. It was very 
 prudent for the Roman to u.alie a will. 
 
 The sixth Table of the Code rejstes to roi-.dnion and 
 Possession. It begins v/ith a recognition of the Nexum and 
 Mancipiur:: , the contract-chain and the foriual sale, ?/hich 
 we reserve for a future study, and then establishes the 
 doctrine of Usucapion which has develpped into the modern 
 titles by Prescription and Adverse Possession, and was 
 broadened into various Statutes of Lin-itation. The Code 
 decreed that possession for a period of t\Yo years in the 
 case of land, or of one year as to other things, should 
 vest the property. Of course it was not meant that a thief 
 should acquire perfect title by his dishonest possession, 
 or a bailee become owner of goods entrusted to his care, 
 and so it followed that the possession of Usuca;'ion must be 
 independent, in good faith, and adverse, amount i^ng to a 
 fair challenge to all comers. Its operation led indirectly 
 to another and very important distinction. Certain things 
 could only be effectually transferred by the soler-n forms 
 of mancipation. These were the land, slaves, and cattle, 
 and denominated ESBmaEsi?:! res mancip i. All else could pass 
 by mere delivery and so were called res nee manci |,.i. But 
 there occiirred transfers of cattle a.nd slaves by tne latter 
 
,61 
 
 process and a possession following v;hich the Roman lawyers 
 dealt with thus. They had to adinit that the vendee had 
 some right, and they called it the Bonitary doiiiinion, and 
 so distinguished it from the Quiratary dominion which re- 
 mained in the vendor, but v/ould have passed to the purchaser 
 if the full legal forms had been eiTiployed. And so we find 
 even in these early days a ngiked legal title in one man 
 and a beneficial eqaitable title in another, thus laying 
 the foundation for the xvhole doctrine of Uses and Trusts. 
 Usucapion was peri;iitted to merge and consolidate these two 
 estates by a continued possession for the prescribed period. 
 
 But the Table discriminated against the alien. It 
 decreed that no possession by him however long could vest 
 in him the property of a citizen. That those t/ho owed 
 allegiance to a foreign authority should yet own the Roman 
 land and wield the influence and power Virhich such owner- 
 ship would naturally give seemed to the framers of the 
 Code a result too dangerous to be borne, and so the alien 
 was put under an incapacity which has followed him down 
 to our own tim.e. 
 
 But the m.ost singular application of the doctrine of 
 Use ap ion , though for the time q.i ite a logical one, was to a 
 very comm;on form of Plebeian marria.gs which was known as the 
 Usus. The m.an took the woman as his wife by consent m.erely 
 
and with little of fori!: or cereriony. If they co-habited as 
 such for one year she becaiae subject to his povirer , in manu , — 
 the daughter, the slave, owing a helpless obedience. But 
 there was for her one avenue of escape, one LiOthod of miti- 
 gation. If during the year she absented herself from her 
 husband for a- period of three days the spell was broken, 
 the manu did not attach, and the marriage remained in the 
 lowest, though perhaps, not in the most unhappy form. One 
 can imagine the persistent ingenuity of the plebeian wife 
 whose lord's temper had given her solemn warning, — some 
 necessary visit, some accidental delay, some plausible ex- 
 cuse which the woman never lacks, — to save out the three days 
 which mean for her soriie degree of safety and freedom. The 
 custom followed closely the logic of Usucapion . Possession 
 for a, yesj: of the wife as a thing, as property, if unbroken 
 and continuous, perfected the marital title. 
 
 As we turn to the seventh Table, which purports to 
 give us the law of Real Property, we should be astonished 
 at its narrowness and the contemptible character of its 
 scope but for a membry of the very same phenomenon displayed, 
 in the Hindu Code. We find in this Table only such things 
 as these : a provision that two feet and a half at least 
 must be left between adjoining edifices for the purposes 
 of a proper ventilation: a hedge must not cross the boundary; 
 
;:'63 
 
 a wall n:ust leave a space of one foot and a house of two 
 feet between it and another's line: a grave or a ditch must 
 leave a space equal to its depth: a well the width of a pace: 
 olives and figs must stand nine feet froiu the line and 
 other trees five: a space of five feet must be left be- 
 tween adjoining fields for the purpose of access and of tiirn- 
 ing the plough, and this strip cannot be acquired by Usu- 
 capion: the branches of a tree overhanging ad;ioining property- 
 must be pruned all around up to fifteen feet from the ground: 
 a proprietor may go on adjoining land to pick up the fruit 
 that has fallen from his tree: the breadth of a road is to 
 be eight feet and where it turns sixtesi-: feet, but if the 
 road is impassible the owner of a right of way may cross 
 where he pleases: if rainwater artificially collected threatens 
 damage the owner who is imperilled may demand a guaranty 
 against the danger: in a dispute about boundaries the 
 magistrate shall appoint three arbiters who shall settle the 
 matter. The trivial character of these details is emphasized 
 by the remarkable silence of the Code over the great land 
 question of the day. The Patricians had gained possession 
 of the Ager Publicu s which swept around the City and had 
 been acquired by the common bravery and the coiiJi.:on sacrifice. 
 These occupants, going into possession as tenants, were 
 ceasing to pay rent, and assuming the attitude of owners, 
 
i84 
 
 and the popiilace were always clamoring for an Agxaxlesi law 
 which would redress the injustice. But the Code was silent. 
 The Fatiician influence was strong enough to prevent any- 
 serious legislation about the land lest a door should be 
 opened for the entrance of the trouble some question. But 
 we also ob^rerve two important matters about which the Code 
 is not silent although its reference to them is nerely 
 incidental. One is the recognized existence of servitudes 
 as indicated by a right of way which one man has over the land 
 of another, something which we now describe as an easer;.ent, 
 resting as a burden on the servient tenement for the benefit 
 and use of the owner of the doruinant tenement. And then, 
 what is quite unexpected, v/e trace the beginnings of that 
 great head of Equity jurisdiction which consists in giving 
 preventive relief, and checks an injury before it becomes 
 irreparable, using for that purpose the remedy of an in- 
 junction. Professor Poste tells us of a suirimons called 
 prohibiti o which directed the suspension of a '.vork threat- 
 ening injury, subject to the further order of the Praetor, 
 and which was followed by the judgment Quod vi et c lam 
 which compelled the wrongdoer to efface his vrork and pay 
 damages for the injury occasioned. 
 
 We approach no-; the eighth Table devoted to the sub- 
 ject of Torts and Grimes, and see at the first glance that 
 
565 
 
 the archaic rule of retaliation or composition has not 
 wholly disapr.eared. It is no longer the general redress 
 but it lingers. Against hL.i who breaks the liuib of another 
 and does not offer compensation there is awarded retaliation. 
 Talio esto is the cormnand of the law. But that is alraost 
 exeptional, and the usual redress is a penalty or reparation. 
 For the breaking of a freeiian's tooth the penalty is three 
 hundred asses ; for that of a slave one hundred and fifty; for 
 other injuries twenty-five. For a trespass couaiiitted by 
 pasturing one's cattle upon the lands of another an action 
 for daiiiagee is given but for injuries done by a ouacxruped 
 the remedy is reparation or the forfeiture of the animal. 
 Theft was still regarded as a trespass against the individual. 
 One robbing by night may be le^wfully killed, but stealing 
 by day must not be slain unless he attempts to defend him- 
 self with arms. There was a further distinction between 
 manifest theft, fur tu rn raanifestu m, a.nd theft not manifest, 
 fur_tum_ non manifestum : that is betv/een cases \vhere the thief 
 is caught in the act , and those in which he is not . jn the 
 first case the wrongdoer, if a freeme^n, was to be scourbed 
 and adjudged to be the slave of the party injured; bmt if 
 a slave was to be scourjged and thrown from, the Tarpeian 
 rock. The lasti/. meant death. Modern travelers are shown, 
 
3^ 
 
 after the sisyindling habit which they go abroa.d to enjoy, 
 what is called the Tarpeian rock, and are astonished to see 
 only a small crag from which an Aiiierican boy would roll 
 unharmed; but Mpere in his history of Rome says: "This naine 
 used to be given to the whole southern ridge", and he adds: 
 "I live on this sumihit and 'C an very well understand what 
 would happen to me if they threw me out of the windo?/ into 
 Strada di Consolazione : it would be a fall of one hundred 
 feet. Besides the face of th3 Tarxeian roc":-: bristled with 
 projections against jdsi which the bodies of those who 
 were thrown down were mangled and smashed before reaching 
 the bottom." But the penalty for theft not manifest was 
 double the value of the stolen property. There was another 
 provision quite difficult to understand. Where the thief was 
 not caught in the act, but was for some reason suspected, 
 there might be a solemn search of his premises with a view 
 to the discovery of the stolen goods. The accuser came with 
 only a girdle about his loins for decency's sake, and holding 
 in his hand a plate went through the house and made the 
 search. If the property was discovered the ceremony was 
 described as "theft louce licioQ.u3 conceptum " , or aiscovered 
 by the plate and girdle, and was punished as mianifest theft. 
 This curious cerem.ony scarcely admits of rational explana- 
 tion. Gaius tells us that the absence of clothing was to 
 
X' 
 
 5^^ 
 
 367 
 
 prevent the searcher fro;.: c-ncealing on his person the 
 thing for which he pretends to search so as to put on the 
 premises the thing which he seeks: but Hering shows us that 
 this is a ne?; reason framed to explain a custoi:: the ineaning 
 of which has been lost. For the searcher brought with hiii. 
 witnesses and these were not required to ap]..ear unclothed. 
 They could bring and place the missing object. In his 
 sketch of "the Evolution of the Aryan" Hering argues that 
 the ceremony is a survival of the leather apron of our 
 reir.ote ancestors which was all they wore in the hot climate 
 of central Asia, and in the valleys v/here their flocks fed 
 girdled by protecting mountains; and that the plate was 
 brought to hold the missing object when found and expose 
 it to the view of the attending witnesses. That may be true 
 There are many instances o^ such survivals often fitted with 
 new reasons when the originals have utterly disappeared, 
 indeed the material element of this Roman ceremony repro- 
 duced itself in the English law and has come down to our 
 day. The owner of movables lost by a larceny may, in 
 certain cases, break open the thief's prer..ises and use 
 enough of force to regain his stolen goods. But he exer- 
 cises this vestige of the old Self -Help rarely and at his 
 peril and under the guard of rigorous restraints. Usually 
 it is the Law which brea'.s open the door. The sheriff 
 
£38 
 
 supplants the owner and the searchpviarrant the plate and gzz 
 girdle . We need, not wonder at so luuch of the survival for 
 it is inherent in the continuing condition. The thief 
 is as old as property. He has followed it all through the 
 Ages. Larceny is both venerable and immortal. But if 
 without the ceremonial search which we have paused to 
 describe the stolen goods were found in the thief's posses- 
 sion, or if he clandestinely put them on the prenises of 
 another to turn detection that way, a fine was imposed to the 
 amount of three times the value of the property. There could 
 be in addition a recovery of the things stolen or of their z 
 vijtue , and a compromise with the thief was always permissible. 
 Some other torts were treated in a similar we.y . He who cut 
 down the trees of another was liable to a fine of twenty- 
 five asses ; for fraud in a bailment a double penalty was im- 
 posed: as also for abstracting the property of a wand by a 
 Tutor having it in charge. 
 
 But there were wrongs unmistakablyy regarded as 
 Crimes. Conspiracy against the State taught the Roman that 
 lesson. The secret plottings on the Aventine hill where the 
 Plebeians were largely m.assed were no trespass against 
 individuals but m&tt. aimed squarely at the destruction of 
 the government itself. And so tl:e Roman realized that .here 
 was a sin not against one or several but against the aggregate 
 
wt 
 
 ■C. 
 
 against one or several but against the aggregate of all, 
 against the public and the State. The Tables therefore pro- 
 hibited seditious gatherings at night, and repressed them 
 by the threat of death as the decreed penalty. Having in 
 this manner gained the idea of a Crime it became easy to 
 bring other Tnrongs within the same conception by the pro- 
 cess of noting their tendency to a public injury over and 
 above their private mischief. Thus arson is punished with 
 death. '£he Code provides that the incendiaSy of a house 
 or of a haystack near a house, if acting intentionally 
 and of sound mind, shall be bound, scourged and put to 
 death by fire. Where on the other hand the butning is not 
 intentional but the product of negligence the penalty is 
 simply a repair of the damage or in default of that a moderate 
 scourging. Then capital punishment is decreed for Homicide, 
 and the right of personal revenge disappears. The State 
 becomes the avenit[er of blood emd takes upon itself what 
 was the duty of family and friends. Kes^t the severe punish- 
 ment of death is imposed upon libellers and defamers. Cicero 
 gives a significemt paraphrase of the law as it stood: "If 
 anyone shall sing songs or msike verses which impute wicked- 
 ness or infamy to another." Obviously those were days of 
 stinging epigranis and rhymes that hurt because woven into 
 the public songs, and which had a tendency to breed sedition 
 
570 
 
 and peril the public peace, it was further ordained that 
 anyone practising suchantment or using poisonous drugs and in 
 that manner blighting the crops or enticing away cattle should 
 be devoted to Ceres, — ^that is, should suffer death. We who 
 lament the blot upon our Puritan history which followed a 
 belief in witchcraft may have some charity for the Roman 
 terror of an occult and marvellous sorcery; but can hairdly 
 have any for the almost unaccountable cruelty which imposed 
 the penalty of death upon him who in the night furtively cut 
 or depastured his neighbor's crops. We may suspect that the 
 Patricians as farmers had suffered in this way from the re- 
 venge or poverty of the poorer classes and dictated the 
 severity of the remedy. 
 
 But the Plebeians were to have something as the gift 
 of the new code which they had compelled, and find in it at 
 least a trace of protection for the popular rights. The 
 eighth and ninth Tables show how much they obtained. It 
 was enacted that the great Comitia of the People should alone 
 have the right to enact laws inflicting capital piinishment 
 upon a citizen and which took away liberty or citizenship, 
 amd there should always be an appeal to the People in the 
 case of any penal sentence: that the interest upon money lent 
 should not exceed an ounce, that is one-twelfth peirt of the 
 principal per annum, amounting to eight and one-third per 
 
571 
 
 cent. Calculating by the solar year according to Huma'e 
 calendar: that the Patron who conanitted a fraud upon his 
 client should be devoted to the Gods, which meant that all 
 human and divine prttection should be withdrawn and anyone 
 might slay him with impunity. False witnesses were to be 
 thrown from the Tarpeian rock, and any transaction witness or 
 scale beeirer refusing to testify was accounted infamous and 
 incapable of giving or receiving testimony. The right of the 
 People to organize themselves into colleges or corporations 
 was recognized, and power bestowed to frame rules for their 
 government, provided only that such rules should not contra- 
 vene the law. The penalty of death was imposed upon the Judex 
 or arbitrator who accepted a bribe, and upon anyone who de- 
 livered a citizen to the enemy or excited a foreign hostility 
 against the State. These all were valuable provisions in the 
 interest of the masses; barriers against the wealth and in- 
 fluence of the dominant families, and a shelter from the 
 possible partiality or corruption of the tribunals: but there 
 was added a command of greater utility thsui all, if only it 
 could have been completely obeyed, which was that no law should 
 be made concerning merely a private individual. By this was 
 meant that there should be no Tonjust discrimination, but one 
 law for all alike. 
 
 The tenth Table, purporting to fix the Saoxed Law, 
 has nothing of interest for us beyond its regulations for 
 
372 
 
 the burial or cremation of the dead and for the si:¥)pression 
 of extravagant funerals. It corresponds so nearly to the 
 Athenian law formulated by Solon as to indicate that the 
 three CommisBioners sent to Greece took that law as their 
 model. 
 
 In the eleventh Table the pride and ambition of the 
 Patricians again comes to the front. Any marriage between 
 the two Orders was absolutely prohibited. There were three 
 forms of ceremony. That which prevailed among the Patri- 
 cians and brought with it the husband's power and the wife's 
 slavery was of a religious character and known as Confarreatio. 
 The woman tasted of the symbolical cake, passed under a 
 cart-yoke, put the piece of copper money in the balance, 
 on the Penates, on the threshold of the conjugal house, and 
 pronounced the formula " ubi tu Gaius ego Qaia " , doing this 
 in the presence of the Pontiff and the Plamen and of ten 
 witnesses supposed to represent the ten Curiae into which 
 the Tribe was divided, and so passed at once into the new 
 household. She joined in the sacred rites at its altar, 
 she wore the s tola which ensured her respect as a matron, 
 auad was treated with reverence except by the hard and unpity- 
 ing law which denied her any personal rights and regarded 
 her as a slave. For the Plebeian this marriage was impos- 
 sible . For hiiri there was the Usus which we have already 
 
573 
 
 described, and the Co-egiTptio which was in the form of a sale 
 by the woman of herself to the husband or possibly of each 
 to the other. Of course the. profeibition of the Tables 
 was resisted and disregarded and in course of time was re- 
 pealed, but the struggle of the classes left behind it to 
 our day the forms of marriage, the one Religious and the 
 other Civil, the one reverenced by the Church as a sacra- 
 ment, the other regarded by the Law simply as a Contract 
 resting on the mutual consent. 
 
 We should add a few words about the twelfth and 
 last of the Tables. Beyond the Pipnoris capio which has 
 already been described the Tables end with a prohibition 
 against consecrating anything which is the eub;)ect of a suit, 
 or involved in a litigation; and with a formal recognition 
 of the liability of the master for the torts of the slave. 
 The distinction is drawn, however, that a direct action 
 cannot be brought against the master but a noxal action may 
 be. In the latter action the master could escape all per- 
 sonal liability for the wrong done by the slave by surrend- 
 ering the latter to the revenge of the party injured: for, 
 says Gaius, "it is not just that the misdeed of a son or 
 a slave should involve the father or master in any detriment 
 beyond the loss of the trespasser's body." Such surrender 
 and its effect was an outcome of the very old custom which 
 gave redress to a person injured against even the inanimate 
 
574 
 
 thing whicli caused the injury. Tylor tells us how the wild 
 native of Brazil would bite the stone he had stumbled over, 
 and how, among the Kukis of southern Asia, if a man was 
 killed by the fall of a tree his relatives would cut into 
 chips. It was this instinctive spite against the thing which 
 had served as the instrtiment of hurt or of death that de- 
 veloped into the curious law of Deodand. The sword or axe, 
 the tree or horse by the motion of which the fatal injury 
 occurred is a thing "accursed", and forfeit to the king 
 who takes it for the use of the Church. The Priests were 
 not afraid of it as "tainted" money. ~ The idea of motion 
 in the thing causing death has been traced byHolmes into the 
 law of the ship. If a man falls from it into the bay or 
 harbor and is drowned the ship is forfeited, if we may trust 
 Bracton; and the Admiralty in many ways treats the vessel 
 as a living personality. It was this doctrine of deodand 
 which required an indictment for murder to state ^ the 
 value of the instrument causing death. The church must 
 have its forfeit. And so the master *s liability gorose only 
 when he put himself in the way of the normal vengeance. If 
 he chose to prevent or obstruct that he took upon himself 
 the wrong done, and was required to answer for it. The 
 archaic thought went further. The master owned and controlled 
 the household. To those outside of it he was the household. 
 
374/S- 
 
 What its members did he could pres\imably order or prevent. 
 What they earned he earned, and so it was easy and natural to 
 think that what they did he did, save only when he was willing 
 to acknowledge their separate personality by surrendering 
 them to the revenge of the adversary. 
 
 And here we may end this general sketch of the Twelve 
 Tables, although their influence will follow us far down 
 the line of Evolution. For their time they were a remark- 
 able body of law, and should interest us more because they 
 mark the transition period between Self -Help under the dom- 
 inion of Force and Custom and the intervention of the State 
 as the source of rights and remedies. 
 
375 
 
 XII. 
 
 THE PRAETCR. 
 
 We have more than once noted along the line of oiir 
 Btudy the hazy and doubtful outlines of a crude Right and 
 crude Duty underlying all human relations. It is an ab- 
 straction quite difficult to grasp and hold; but our ulti- 
 mate conception of it may be made easier if we first study 
 that marvellous thing which forced its way into the Roman 
 law and then dominated it, and which appeared in different 
 forms and under various names: now the Praetorian law, the 
 Jus Honorariu m, then Equity, the Jus gentium the law of 
 Nature , and Natural Reason. 
 
 Two judicial officers worked a remarkable change 
 in the Civil Law of Rome. They were the product of the 
 constant struggle between Patrician and Plebeian. The 
 latter had forced the appointment of two Consuls, one of 
 whom was always to be of their own order, and they regarded 
 that result as a victory. To neutralize or lessen that 
 victory the Patricians sought to weaken somewhat the con- 
 sular authority. They cut off from it the judicial power 
 and vested that wholly in a new officer, likely always to 
 be a Patrician, who was denominated the Urban Praetor. 
 
376 
 
 He, however, at first, made no change in the legal system, 
 but enforced the existing Quiritarian law, limited exclu- 
 sively to the Roman citizenship. There was no law for 
 strangers, and yet, more and more, these flocked to the 
 seven-hilled City, attracted by the rewards of a growing 
 commerce and the safety and glory of a masterful govern- 
 ment. They could buy and sell but only by delivery, and 
 neither having nor passing any legal title. They could have 
 possession in fact but never once a lawful dominion. Very 
 rapidly the situation became intolerable, not only between 
 the aliens themselves, but between them and the citizens 
 whenever there were mutual dealings. To remedy this diffi- 
 culty Rome appointed a second judiciad officer, known as 
 the Praetor peregrlnus . charged with the order and care of 
 the non-citizen population. But what law was he to adopt 
 and enforce? Certainly not the j us civile . That was im- 
 possible i for Rome would not peurt with it or extend it over 
 the aliens. In this emergency the Praetor did two things, 
 though little conscious of the marvel he was working. He 
 developed, with the aid of jurists and philosophers, a new 
 legal theory and invented a new Procedure to make that 
 theory practical. We should study therefore, first, the 
 officer himself, next his theory, and then his practice. 
 The Romans dignified their Praetor. They invested 
 
577 
 
 him with a share of the consular imperium: they gave him 
 six lictors: he stood next in place and sway to the Consuls 
 themselves: indeed he acted as Consul when they were absent 
 from the city, marching at the head of their legions against 
 the barbsLr^ans tribes darkening the borders. His judicial 
 authority was summed up in three words and was on its face 
 limitless and without boundary. These words were "Do", 
 I give or ordain the arbitrator and rule of Procedure ; 
 " Pico " . I declare the right, I decide; " Addico " . I award 
 the subject of the controversy. Thus seemingly, his juris- 
 diction was boundldss, but in truth was limited by two re- 
 straints. He could not openly destroy or disobey the Civic 
 law or disregard existing statutes, and was required to 
 frame at the outset of his official year an Edict declar- 
 ing what law he meant to enforce and then adhere to it with- 
 out variation. But powerful sis he was he must get his new 
 law from somewhere and outside of Rome, and, looking abroad, 
 a theory dawned upon him, simple enough at first, but grow- 
 ing more and more complex and dominant. He saw, or thought 
 he saw, in the custom and law of all races some rules or 
 doctrines common to th4m all, and underlying the great 
 diversity of forms and methods, and serving as the founda- 
 tion upon which rights and duties stood. A notable instance. 
 
578 
 
 and the first likely to be observed, was that relating to 
 a sale or transfer of personal property. Everywhere one 
 thing was at the bottom of it, and that was the actual 
 tradition or delivery of the thing sold by the seller to 
 the buyer. That the Praetor saw to be the kernel of the 
 transaction, its pith or meirrow, its very substance and truth 
 All else was shell or covering or shaping mould, varying 
 widely in incidents, accompaniments and surroundings among 
 different races, nations and tribes. In the Civil law 
 ceremony of mancipation by which alone a complete title 
 passed he reflected that the scales and the copper and the 
 solemn form of words were, after all, but the outer cloth- 
 ing of the material fact, of the meeting of two minds in 
 the delivery of the thing sold. And so he began to declare 
 in his Edict that in all suits between aliens, amd between 
 citizens and aliens, he would apply auid enforce the Jus 
 Gentium , the law of nations: that is'^ not what we now under- 
 stand as International law operating between nations, but 
 so much of the law in each as was found to be common to 
 them all ; what might be termed the Common Law, a phrase 
 which the Briton appropriated to that of his own island. 
 This common law of the known world when enforced was neces- 
 sarily applied in its sia^jlicity, in its ultimate and funda- 
 mental doctrines, and stripped of all the forms which in 
 
579 
 
 wide variety had elsewhere gathered around it, and so it 
 steadily put a new system alongside of the Quiritarian law, 
 running parallel with it, and yet likely in the end to ab- 
 sorb and destroy it. Thus very soon there was the Civil 
 sale by mancipation and the natural sale by mere delivery: 
 there was the formal marriage of the Civil law and the 
 natural meirriage resting on contract: there was the Civil 
 relationship of Agnates and Cognates and the naturauL rela- 
 tionship which ignored the distinctions: there was a natural 
 as well as Civil possession; and a natural as well as civil 
 obligation, and the new blood of a natural law began to run 
 through the Roman arteries. 
 
 The Praetor accomplished these changes slowly euid, 
 to a great extent, through a modification of the Civil 
 procedure. We have already said in describing the Sacra -' 
 mentum that the parties themselves framed the issue through 
 a set form of words, and thereupon the whole dispute was 
 referred to an appointed judex or referee , That referee 
 was an independent combination of both judge and jury, hav- 
 ing in his hands the facts and the law, and applying the 
 Jus Civile according to his own understanding and inter- 
 pretation. The appofhting magistrate could scarcely influ- 
 ence the growth of the Law in any direction for the judgment 
 was not his. Just at that point of the old Procedure the 
 
380 
 
 Praetor intervened. He himself, when applied to for the 
 appointment of a judex, or where more than one was desirable, 
 of what were calle d recu-peratore s. prepared a formula which 
 not only framed the issue but settled the Isew of the case 
 imperatively and absolutely, leaving to the referee only 
 the power of deciding upon the facts and then giving judg- 
 ment according to the law settled for him by the formula. 
 If the truth is thus, condemn; if it is not, absolve; was 
 the mandate of the magistrate become master of the situa- 
 tion, and a law-maker wielding a new theory of justice, and 
 so, exactly reversing the Civil Procedure in which the 
 judex was everything and the magistrate, not qiite but al- 
 most, nothing. Endless and variant groupings of facts came 
 to the Praetor which he had to sift and analyze, and then 
 apply to them the solution of the new principles on which 
 he acted. The shaping of the formula was of course very 
 important to and closely watched by the litigants before 
 him. Its two VTStal constituents were the c ontenti o and con - 
 demnatio, the former carrying the precise issue and the 
 law of it in its written words, and the latter adjudging the 
 right established or the compensation due. But cases oc- 
 curred in which the party sued was forced to admit a state 
 of facts involving an inevitable liability, but to which 
 he had an answer in the shape of an affirmative defense. 
 
381 
 
 Such a defense found its^ place in the formula under the 
 guise of what was called an except io . The Praetor is com- 
 mand to the Judex became in substance this: decide thus 
 except it shall appear so and so, in which event absolve. 
 There was one exceptio which was very broad. It was the 
 except io doli or defense of Fraud, and was construed to let 
 in any facts which would show a Condemnation of the defend- 
 ant to be substfiintially unjust. It seems clear that in the 
 Praetorian formula there was compressed and compacted a 
 complete system of pleading: and we are not surprised to 
 learn from the history of the time that the formula was 
 prepared slowly and with much discussion on both sides, 
 and not infrequently the advic6 of the ablest jurists of the 
 day was called in to aid in the delicate and difficult 
 task. 
 
 But let us study this Roman Praetor from another 
 point of view. He is worth our most diligent and patient 
 attention for it is possible that before we have done with 
 him he will tell us what is the entire content and doctrinal 
 material of cur Positive Law, emd by what ways and in what 
 manner it grew to its present perfection and authority. 
 The most fruitful characteristic of the Praetorian formula 
 was, that, for the first time, or almost for the first 
 time, it separated the law from the fact by committing the 
 
382 
 
 first wholly to the magistrate and the last to the appointed 
 referee. See what and how much that separation meant. 
 Law mixed with facts, overrun and overwhelmed by them, is 
 but dimly discernible and imperfectly identified and under- 
 stood. In that condition it can ip^eisier grow or develpp 
 but remains more or less hidden and doubtful. It is the 
 gold ore with its spots of yellow light gleaming out of 
 the river dirt on the grim solidity of the quartz, and 
 needing to be freed from its prison and auLloys before it 
 can be gold. The Law must be able to see itself and be 
 clesurly seen by the eye of intelligent^^ thought before it 
 can be a Science and grow as a science grows and develops. 
 This separation the Praetor made. He drew the abstract 
 Law from the concrete facts: and, though his method was 
 somewhat obscured and lost under the Empire , it revived 
 under the modern law. We reap the fruits of that separa- 
 tion, and — ungrateful wretches that we eireJ— deny the 
 giver while we hold the gift. 
 
 But the influence of the Praetor's method took a 
 wider range. The jurists and philosophers began to study 
 it and delve for its basis and meaning. These Roman 
 investigators, close and careful students of the Law, and 
 trained to observe as well as reason, could not discover a 
 volume of customary law common to sill races however scat- 
 
S83 
 
 tered or divergent without being struck by the phenomenon 
 and seeking to reach its origin and cause. We can see them 
 standing thoughtfully before the suggestive fact and study- 
 ing its meaning and its lessons. They knew it was not ac- 
 cidental or fortuitous, that it must be rooted in some com- 
 mon cause and harne some one explanation. We can hear them 
 say, as they talk about the problem in the schools and in 
 the Forum , that this uniform prevalence of the same customs 
 and rules on different shores; under different skies, among 
 disconnected races, shows first that the doctrines evolved 
 pat all men on an equality, levelled all down to the same 
 standard of right and duty, treated all exactly alike, and so 
 they called the new system Equity, — Ae quit as — whose original 
 sense was equality; and 4ven to this day it is a prevailing 
 msixim in the Chancery that equality is equity. But that name 
 only described from one point of view what they had dis- 
 covered and did not measure or explain it. They pushed 
 their search for an adequate cause, and flattered them- 
 selves that they had found it in what they called the 
 law of nature, and that was the second thing that they said 
 about it, axid one which added a marvellous strength to the 
 grasp and the hold of the new law. We can easily trace 
 the origin and occasion of this new theory and see how 
 certain it was to suggest itself. The Romans understood 
 
384 
 
 the observed uniformity of the natural world, the succession 
 of day and night, and of the seasons, the inevitable fall 
 of unsupported bodies,, the recurrent phases of the moon 
 and places of the stars, and this uniformity they ascribed 
 to some natural law, finding it always simple, harmonious 
 and immutable: and when they discovered, or thought they 
 did, a similar uniformity in the rules of action and con- 
 duct prevailing among all known nations it was not in the 
 least strange that they should explain that uniformity as the 
 product of unobserved natural law. While at the outset that 
 theory seems to have been merely a mode of stating the 
 observed uniformity, yet at a later period it assumed a 
 more definite shape and revealed a deeper meaning under 
 the influence of the Stoic philosophy which the jurists 
 largely studied and embraced. The Stoics defined morality 
 as conformity to Nature and Reason, making intention or 
 motive its decisive element, regarding virtue as the 
 highest good, deeming good-will as the internal mental 
 attitude, and perfection as the end to be reached. Per- 
 haps they understood all this. Fe\T of us will be sure 
 that we do thoroughly, but we know that out of it came tiio 
 practical results; one the idea of determinism whi di we 
 prefer to call fatalism, and the other that of the brother- 
 hood of men, bringing them all into one vast family. 
 
385 
 
 Conformity to nature involved an absolute resignation to 
 its decrees, a contented submission to whatever should 
 happen, enduring pain as a thing not to be feared and accept- 
 ing pleasure as a thing not to be desired. Both were to 
 be treated with equal indifference. That required conformity 
 also brought with it the idea of human brotherhood, blot- 
 ting out all national lines, but it did not mean equality 
 in its full sense, and so did not object to slavery which 
 the Stoic refused to regaurd as an evil. Indeed he affirmed 
 only an internal freedom of the will or of its chosen at- 
 titude, but denied any external freedom as against the 
 decrees of Kature. The doctrine ended in this, that we must 
 sit still and take everything as it cromes without emotion, 
 conquering and killing all passions, living a life of tran- 
 quility — atarazi a-as they termed it. We who are not philo- 
 sophers may bluntly choose another name for their idesuL life. 
 fe christen it pgiralysiB. But while it thus tended to para- 
 Ignse conduct it did not paralyze thought unless perhaps in 
 those who struggled to understand it, for it formulated a 
 theory which proved tempting and convenient to the Rpman 
 lawyers already studying the phenomenon of a discovered or 
 supposed uniformity of fundamental legal ideas in all known 
 races. THaile the Stoics regarded the Soul^ as a thing material 
 
586 
 
 and. corporeal they yet assumed it to be an emanation from 
 the Deity, a spark of that Divine fire which permeated 
 the universe and occasioned and explained all its varied 
 phenomena. The vital and distinguishing character of that 
 soul was its thinking power, its innate inbred Reason, 
 which, by force of its Divine origin, becarae the absolute 
 and imperative authority over man and his rights and duties. 
 These ideas of the Stoics were well calculated to capture 
 and mould the thought of the Roman lawyers. They began 
 to say that there was a law of Nature binding upon men, to 
 which it was their duty to 4onform, ruling them sill as 
 brothers in spite of tribal or national lines, or the ac- 
 cident of localities or boundaries, to which obedience was 
 due, which was simple, heurmonious and symmetrical, and 
 which if followed would bring perfection, j^nd swiftly 
 grew the inference that the Praetorian law was rescuing 
 and slowly reproducing that lost code of Nature, which had 
 an authority of its own outside of and beyond mere human 
 will, which stood over and abofe any baxe command of 
 King or Consul or Decemvir, which men did not make, 7±iich 
 men merely discovered. A msurvellous doctrine indeedl which 
 has since swept the world, and to this day is putting its 
 impress upon human thought. It vitalized the dreamings of 
 Rousseau and the French law is saturated with it. Until 
 
387 
 
 Bentham came and crushed, it under hie heavy foot it dominated 
 the English law, and entrenched itself boldly and broadly 
 in Blackstone'e introduction to his Coiamentaries. In the 
 hands of Grotius it became the foundation of International 
 law, and to-day is yet appealed to by Judges and defended 
 at the Bar. There are those who do not hesitate to say 
 that the authority of the law resides not so much in the 
 command of the State as in its haxmony with the law of 
 Nature and of right reason. Deep down in the theory there 
 is a great strong truth which we may hope to separate and 
 save, but as a whole its basal fact was an enormous false- 
 hood. For the natural law governing the actions of the 
 primitive individual was a law of Selfishness absolute 
 and complete ; a law of violence and war j the will of the 
 strong man dominating the weak; the sway of Force proceed- 
 ing by slaughter; a despotic rule having no thought, aim or 
 motive which respected or even considered the welfare of 
 others. We have studied the early history of htaaanity to 
 little purpose if we have not learned that lesson. So far 
 from being the law which Divine wisdom framed for man as 
 the agent and guide of his upward climb to civilization it 
 was developed from his animal instincts and ushich he had to 
 modify and gradually abandon at the very beginning of his 
 
388 
 
 Social life J at the moment when he entered into mutueil re- 
 lations with other men and from a solitary became a tribes- 
 man. If we call the savage primitive instincts a law of 
 Nature, aw we may, we have so far a fact and a truth, but 
 one wholly of a germinal character , and whose early products 
 were the very force and selfishness which it has always 
 been the office of Positive law to curb and control. For 
 Society is founded upon and more or less involves a sur^ 
 render of the natureO. rights of the individiaal, since those 
 rights inevitably come in collision with the similar riglhts 
 of others, and when that occurs there must either be com- 
 promise or war. To secure peace and so preserve order there 
 must be a silent but actiial modification of the ptorely 
 natural rights of the segregated individual. His unni!^ 
 stricted liberty must be narrowed and restrained to har- 
 monize with the equal liberty of his fellows: his right to 
 his life must be conditioned upon respect for the life of 
 others; his right to land and to flocks and herds must be 
 narrowed and limited by the corresponding rights of the 
 remaining members of the groi^p. This social comprovise has 
 as its basis a choice between peace and wari a choice which 
 results from convictions born of experience that peace with 
 restraints ^-4rB-&th: er words the social oompromioe io found o d - 
 ■^aj^»a^ -noti < m 6-e f Oenorgl Utility. — Tho underlying and in 
 
589 
 
 is better and more useful than war without restraints: in 
 other words the social compromise is founded upon notions 
 of General Utility. The underlying and inevitable thought 
 arose that it was better not to kill than to face the peril 
 of being killed; not to invade the home off another than to 
 put one^s own home in danger; to have perhaps fewer cattle 
 but hold them in their enclosures safe from raid and robbery, 
 The thought was crystallized in the maxim of Confucius, 
 born of the retaliation which he saw about him, "do not 
 do to others what you would not have others do to you." It 
 was a maxim of prudence necessary to the peaceful and order- 
 ly flow of the social life; a doctrine of General Utility 
 founded upon some surrender of the natural rights of the in- 
 dividxieuL as essential to the useful working of the social 
 organism, but as far away from the altruistic element in 
 the Golden rule formulated by Christ as we axe from the 
 most distant star. But this doctrine of Utility involves 
 a surrender of the natural right of the individual only so 
 far as is deemed essential to. the operative methods of the 
 social organism, and to be and become effecctive has to be 
 first described and defined, and then enforced by the ag- 
 gregate power of all, and so matures into the law of the 
 group, the tribal or national law; and justifies the saying 
 of Ulpian that the whole law of the Praetor was founded 
 
390 
 
 upon Public Utility, ( publicum utilitatum ). The need of 
 modifying the primal rights of the individual to meet the 
 social exigency became so plain and its uti^lity so obvious 
 that the people began to regard it and describe it as fair- 
 ness, equity ;Just ice. It is not difficult to see how that 
 view of it came to predominate. Everyone felt it to be 
 fair and just that he who refrained from killing and gave up 
 his right of revenge should not himself be killed but he 
 protected against that danger: that the society which would 
 not allow him to retaliate should gviard him against the 
 need of retaliation: and that the action of the group which 
 barred his revenge at least should give him in its place 
 Justice. This new social law displaced the natural law 
 at first prevailing between separate and segregated indivi- 
 duals because the latter was obviously unsuitabfa^ to the 
 social relations established. It fitted only the condition 
 of the primitive man wandering alone or fighting the 
 stranger whom he met. Indeed, so far as history tells us, 
 there was never but one philosopher who dared to describe 
 that law of nature in its truthful and almost brutal outlines 
 and then offer it for adoption as the governing rule of 
 Society. He was a Greek, named Kallikles, a young Athenian, 
 bold enough to admit the law of Nature to be simply the law 
 
591 
 
 of the stronger, and yet to claim for it that it was superior 
 to and should displaoas the law of Society. Hobody followed 
 him openly, but there dame a plentiful sT:5)ply of despots 
 who acted his doctrine without daring to avow it. Indeed 
 the requisite surrender of individual right in the early 
 society was far from being absolute and complete. On the 
 contrsLry it was sadly partial and imperfect. Even within 
 the family and the tribe an obvious reversion to the old 
 hard rule marked the relations of the father to the child, 
 of the husband to the wife, of the master to the slave, of 
 thecreditor to the debtor: and it retained its full force 
 and sway as between tribe and stranger tribe, and even yet 
 to some evil extent governs the relations of the Hations to 
 each other, all armed for war and watching across the borders 
 with jealous eyes. 
 
 The Roman jurists and philosophers therefore deceived 
 themselves when they fancied that they had discovered a 
 Divine law of Natttre, perfect and harmonious, and binding on 
 all either in the phenomina of the law of the primitive 
 man, or in the slowly forming law of Society which they 
 began to call the law of right reason. The Praetor pere - 
 grinu s never followed these lofty flights though he gave 
 occasion for them. He went his way on a much lower level, 
 and the question is yet unanswered where he found his law 
 
592 
 
 and of what material it was made. Recall the date of his 
 origin as the key to his surroundings and consequent op- 
 pQrtunities. It was 247 years before the coming of Christ. 
 Outside of Rome, with the exception of Greece and Carthage, 
 there were no known nations but only nomadic and barbarous 
 tribes. From Athens had already been brought some of her 
 law, but woven in the Qiiirtarian system which the Praetor 
 designed to abandon. Carthage had commeroae but no law ex- 
 cept that of barter. There was no law among the other 
 races fit to be called such, or to which an intelligent and 
 educated Roman could stoop. There was no history which 
 
 he could examine with any hope of extracting material valu- 
 
 he 
 able for his purpose. It i is safe to say thatxke got 
 
 no law from abroad because there was none, and if there had 
 been, the means of learning it accurately were wholly want- 
 ing. Ihat then did the Braetor get and how did he get it? 
 The answer is obvious and certain. He was placed as a 
 judicial officer over the alien population of the City. 
 They came from all quarters of the globe. They brought with 
 them their own notions of external morality, that is of 
 outward conduct, and their memory and regard for prevailing 
 customs, and appealed to these constantly and invariably. 
 And so the Praetor acquired an abundant knowledge of them. 
 
593 
 
 It was not long before he began to observe in them elements 
 common to them all; elements which were fundamental, and 
 when stripped of needless and cumbrous forms were in truth 
 identical or nearly so. Thus in Sale, as we have already i 
 said, the delivery by the seller to the buyer and the con- 
 current pajrment of the price by the buyer to the seller 
 was the universal rule: in bailment, that the thing bailed 
 should be returned and the bailee be responsible for the 
 return was the custom everywhere : that marriage was pro- 
 duct of the consent of the parties whatever of ceremony 
 might attend it was the common truth whereffver the tribe 
 has got beyond stealing or piurchase. The Praetor saw at 
 once that a law for the aliens foaanded on such common 
 elements would not only be fair to the strangers and easily 
 understood by them but would be likely to meet their approval 
 and chime with their sense of justice: and that by this pro- 
 cess the need of different rules for different races and the 
 collision of such rules where two litigants were of widely 
 different origin would be avoided. And so we are confident 
 that the Praetor found no law abroad, but what he did find 
 were certain rules of external morality emd prevalent custom 
 which at bottom were common to all races, and he selected 
 out so much of that morality and custom as he deemed best 
 or necessary, and day by day and little by little wove it 
 
594 
 
 into his judgments and made it law by adopting and en- 
 forcing it. The process is suggestive. It seems to tell 
 us from <(rhat seeds or roots ihe Common Law has grown* 
 and that it is native to all climes, and ripens its 
 fruit in every sun and air. The main characteristic of 
 that process appeeurs to be that it disregards the forms 
 and ceremonies which are found to be wrapped about all 
 primitive laws, vestments explainable by the truth that 
 the early people were not equal to abstractions but »aw 
 everything in the concrete if they saw it at all. The 
 Praetor boldly strips off the forms to find the under- 
 lying doctrine and then observes that what is disclosed 
 to his view in its original and necessary elements is 
 not peculiar to some one clime or race, but prevails every- 
 where among men lifted above mere savagery. If, for ex- 
 ample, he looks to the law of sale as enforced by his 
 Quiritarian colleague the Praetor urbamis fl^g^ sees, as we 
 have already said, how the scales and the bronze and the 
 set form of words are merely the outer husk of the real 
 transaction, and that the latter would be found among all 
 races. If he looks across the sea to Carthage he finds 
 that every sale must be made in the presence of the 
 public crier and writer, but he sees also that these are 
 merely official witnesses of the real transaction and are 
 
395 
 
 not essential to its validity unless made so by Custom. 
 The sale is a sale everywhere however its form and mode of 
 proof may vary. And so the law of the Praetor grew from 
 and out of common customs and ^Ic^ernal morality, and we 
 may say of him that he finds his law already existent 
 and does not arbitrarily construct it, and that what he 
 appropriates is not the law of Nature, altogether selfish 
 and violent, but the better Siacial law mftiich has followed 
 it, although itself selfish and impea^iPffit. 
 
 The Praetor was by no means left to prosecute his 
 work alone. There were very able jtirists in Rome: men who 
 made the study of the Law the business of their lives, 
 iih.0 were deeply read in the Greek philosophy, and brought 
 to bear upon the Roman law an ability which was almost 
 genius. We have said how they were often called to aid in 
 the framing of the formula and it was not long before their 
 opinions were sought etnd vauLued in every new or difficult 
 case. These opinions were termed responsa prudent ium , 
 and grew to be in the end one of the most important agencies 
 of the Law's growth. In the early days of the city such 
 responses were given by the Pontifices in whose hands 
 rested the jurad authority , and the little knowledge mixed 
 with Paganism which tended towards law. But the disclosure 
 of these secrets by Aetius, followed by the adoption and 
 
396 
 
 publication of the Twelve Tables, dried up this source of 
 priestly tyrajiny and plunder, and opened the door to the 
 suiswers of the jurists. These answers at first were not 
 at all authoritative or binding upon the magistrates, but 
 later became so when the £mperor selected out and named 
 certain of the Jurists whose answers and opmnions should 
 govern the judgment of the magistrate. It was these Romaja 
 lawyers — the luicient bar, — ^who brought into existence the 
 art and system of legal reasoning. We know of nothing 
 exactly like it. It took the Twelve Tables in hand and in 
 the years following spread them out until no library could 
 hold them, and no life was long enough to master them. 
 The process began as and was claimed to be one of inter- 
 pretation. There was evident need and room for that. 
 The words of the law were few, compact and brief. What their 
 meaning was as applied to the changing relations and new 
 needs of the people was not easily ascertained and inevit- 
 ably involved differences of opinion. The process passed 
 into explanation and then into illustration and again into 
 analogy. It began to discriminate, becoming more and more 
 astute and refined, until the strong but rude cable of the 
 text was drawn out into the slender wire, endless in length 
 and innximerable in its coils. 
 
 There were many of these juris-consults. Prominent 
 
397 
 
 among them was Scalvola who advocated the doctrine of the 
 Greek Stoics, and held that men being equal and social there 
 existed between them necessary relations whence Reason 
 should deduce laws. But he deified that Reason: held it 
 after the Stoic fashion to be a Divine emanation and so 
 incapable of error and absolute in its authority. Enough 
 of grinding on the wheel of experience to eliminate the God 
 from the human brain would have left his doctrine quite 
 endurable. He is said to have been a teacher of Gidero 
 who carried his master's theory to the point of saying 
 that the moral law was Nature, inevitable, universal in- 
 flexible, and which neither Senate nor people could abro- 
 gate. Among the rest of the Jurists there were Labeo and 
 Oapito whom Tacitus describes in his annals, saying that 
 the latter was a favorite of Augustus and reached the 
 consulship, while the former was so sturdily independent 
 that he never rose above the praetorship. They aure gener- 
 ally described as the founders of two rival schoo,l-« of 
 law called the Sabinian and the Proculiaui, the distin- 
 guishing marks of whidi have been declaured to be that one 
 favored a rigid interpretation founded on the letter of the 
 law, but the other preferred a more liberal and elastic 
 construction. We have seen the same quarrel over the 
 interpretation of our own Federal Constitution. As to 
 
398 
 
 which of the two men favored the one method and which 
 the other there is much of dispute . Gibbon and Duruy 
 seriously disagree. The truth most probably is that the 
 two schools disagreed only in instances and details, and 
 were not marked by any such cleavage as that suggested. 
 At the same time it may be admitted that Labeo was a 
 sturdy lover of the old Republic and pushed his freedom 
 of thought with a vigorous ability to many innovations, 
 while Capito, secure in the Emperor's friendship, was 
 contented with the existing frame of things and indisposed 
 to risk the uncertain effects of change: and it is not im- 
 probable that these differences in character led to differ- 
 ences in legal opinion. But greater tham these men was 
 Papinian who seems to have outranked them all. He was 
 Praetorian Praefect under Severus and by virtue of that 
 office head of the army, of finance auid of Law. Most ad- 
 mirably he fulfilled all those duties. But the Emperor 
 died leaving his two sons, Oaracalla and Geta, the former 
 of whom slew his brother and caused also the death of 
 Papinian in the bloody riot. It is asserted that he of- 
 fended his new master by answering to the demand that he 
 justify the murder of Geta with the words that "parricide 
 was not 80 easy to defend as to commit." There were associ- 
 ated with him as assessors two other lawyers whose works 
 
399 
 
 or fragments of them have come down to us.j5 These were 
 Paulus and Ulpian. Both men were Syrians by birth, and with 
 all their learning and ability so jealous of each other 
 that they scEarcely name each other in their large and 
 numerous works. There are over two thousand extracts from 
 Paulus in the Justinian Digest, and we find him a strong 
 advocate of that morality which consists in Charity. He 
 said "Donations may be made to the city either for its 
 adornment or its honor; and among the things which honor 
 a city most is the practice of giving support to infirm 
 old men and to young children of both sexes." Ulpian appears 
 to have been a very prolific writer. It is said of him that 
 his works form the core and more than a third in quantity 
 of the whole Digest. He was hated by soldiery because he 
 removed two of their captains, and in a resulting iifiot 
 was brutally killed. It seems to have been dangerous for 
 a Jurist to meddle much with politics. Of Gaius and Tri- 
 bonian we shall have something to say hereafter. These 
 juris-consults helped the Praetor in many ways. They wbzk 
 either suggested to him or guided him in the jjuse of Legal 
 Fictions as a convenient method of working out a difficult 
 piece of justice, and aided and abetted him in the peculiar 
 process, unethical in its method, but seeking right in 
 the result. And very soon we see the Prator allowing the 
 
400 
 
 actio fiaticia in which the intent io is modified by the 
 insertion of a fiction whereby the referee is commanded 
 to assiime that a thing untrue is the truth, or that some- 
 thing which has occurred has not occurred. A^d. so he learned 
 to feign or assume the missing qualifications in the heir, 
 to wink at a fictitious mancipation, to declare that usu"^ 
 cap ion was complete when its running was unfinished, that 
 the status of citizen or foreigner existed when it did not, 
 and even the non-existence of a loss of grade or capacity 
 where in truth it had been lost. The ^ii44- brood of suc- 
 ceeding fictions has leurgely increased and notable examples 
 will be found in the English law. We may be justified in 
 refusing an approrauL to the use of legal fictions, and yet 
 should remember that they were resorted to when Procedure 
 was rigid and inelastic, and would defeat justice in many 
 cases which occurred. Where there was an obvious right to 
 which protection was due but which was barred by existing 
 forms or restraints one of two remedies had to be adopted: 
 either to radically change and modify the Procedure, which 
 would be a difficult process when it had become inwoven with 
 the popular habit and custom, or to assume as true some 
 compliance with the obstructing rule which would make it 
 
 possible for the unchanged Procedure to recognize and 
 enforce the right justly asserted. It was this fact, and 
 
401 
 
 the necessity involved in it, which led Ihering to write in 
 his teDse and pithy way that such an untrue assumption is 
 "a falsehood technically necessary", and that "Order with 
 fiction is better than disorder without it." 
 
 But the years rolled by and the Praetor's days were 
 numbered. With the advent of the Empire his work was done. 
 His existing Sdict, revised and set in order was declared 
 to have the force of law, but he never made another. 
 His place was filled by the officers of the Empire and he 
 passed from the stage, gut he left his. Edict behind him, 
 completed smd finished, and crystallized into Roxaaxi Law, and 
 proving its best and brightest product. If he had worked 
 out but two of the results of his judicial action those two 
 would have preserved his memory. We have heretofore described 
 the Bonitary dominion resulting from a sale by delivery and 
 without the prescribed forms, ^ich left the legal title 
 still in the seller. That overhangin/g formal title was 
 a menace to the purchaser and a persistent cloud upon his 
 ownership. The Praetor remedied the evil by awarding to 
 the Bonitary owner all the rights and remedies which ^he 
 would have had if the full and Quritary dominion had at- 
 tended his purchase. The cloud thus faded utterly away. 
 We have described also the horrible execution of the Civil 
 Law, the only one which it knew or permitted, and urtiich 
 
403 
 
 ran against the body of the debtor, and meant for him 
 chains and death. The Praetor was the first to grant Execu- 
 tion against the debtor's property, and gradually substitute 
 it for the old and crael remedy. He permitted the judg- 
 ment creditor to seize the urtiole of the debtons property, 
 and then provided for its eqditable distribution among all 
 the creditors. And yet we and our English brethern continue 
 to shut our eyes surlily against the truth that the Praetor 
 anticipated our Bajakrupt Act by about two thousand years. 
 As 4 ^® part with him and see him lay aside his judicial 
 robes at the Imperial command we give him the rank and 
 award him the praise which his brilliant work deserved. 
 
 He has answered for us two important questions, 
 vital to our study, and before we part with him finally let 
 us see if he will not answer for us a third; an inquiry 
 which respects the ethical or unethical character of the 
 external morality out of ' which he framed his law. For in 
 the law as it rules us to-day there is obviously something 
 which answers to our conception of an ethical quality, and 
 out of the Praetor's experience we shall be glad to legurn 
 where he got that quality, if he had it at all, and by what 
 route or through what necessity it introduced itself into 
 the Law. If the basis of all virtue, of all goodness, of 
 what in its highest ideal we have beenWught to call 
 
403 
 
 Altruism, is General Utility, which is the theory of 
 
 Benthamj that is to say, if it is doctrine and conduct 
 
 which tends to produce the greatest happiness for the 
 
 units of the social organism; if that constitutes the 
 
 is 
 entire and complete content of Ethics, then it »x easy 
 
 to see that the material which the Praetor used and about 
 which the Jurists reasoned had in it an ethical quality 
 capable of growth and of normal evolution. For, while the 
 primitive man before his social life began was utterly and 
 completely selfish, having ho relations with other men save 
 those of the fist and club, and developing no virtue beyond 
 that of a rude and coarse courage, yet a^hange began to 
 come over him as he gathered about him a family and then the 
 more numerous members of a tribe.. For the new social re- 
 lation compelled from his native Selfishness some lessen- 
 ing of its dominance, some little regard for others, some 
 limitation of his personal power and activity, some gradual 
 surrender of his individual right, real or supposed, when 
 it came in collision with the similar rights of others. He 
 began to see even from the narrow standpoint of his own 
 safety and happiness that Peace and Order within the family 
 and the limits of the tribe was better than private war and 
 violence, and the conviction slowly grew upon him that he 
 must in some degree abate his Selfishness and put in its 
 
404 
 
 room at least some moderate regard for others. Obviously 
 this tendency, slight at first and feeble in its beginnings , 
 slowly grew as experience taught the lesson of its utility, 
 but that growth necessarily was on its own lines, and sub- 
 stituted merely for the Selfishness of the individual that 
 of the aggregated units, that of the tribe. Peace within 
 the group, war outside of it became the prevalent rule of 
 action. But even within the family and tribe the surrender 
 of normal authority and right went but a little way at the 
 outset. The husband could kill his wife, the father could 
 slay his children or sell them into slavery, the master 
 could scourge and torture his slaves, a thief was praised 
 if undetected, and piracy was honorable. Ho law stood in 
 the way. But these violations of ethical duty and right 
 were not permanent and lasting. They slowly gave way be- 
 fore the lessons of daily experience and the demands of ad- 
 vancing civilization. That progress justifies the deduction 
 that external morality, on its own lines and in its own 
 nature, had a capacity to improve, to grow better, to p\arify 
 itself like running water. But all the time and along the 
 whole process of growth the dominant principle in it has 
 been Selfishness, — the gain of the individual, of the tribe, 
 of the nation, — never once the good of Humanity. 
 
 But is that progress and purification all which has 
 
405 
 
 lifted the Law^s material and so the Law itself to a higher 
 ethical level? Do we not recognize in its conceptions 
 of Justice, of Eqiity, of Duty, of Right, some other and 
 purer element of ethics than that of mere utility? Has 
 there not dawned upon human experience an ideal standard 
 of the Good very much above that of the Useful? We coiajiit- 
 ted ourselves to the defense of some such truth when we 
 deliberately adopted the expression "external morality" 
 and carefully defined and limited it . For the very form 
 of the expression implies^ that there is an internal morality 
 different and distinct from the rules of outward conduct, 
 a purity of character underlying the visible action, what 
 by a very natural figure we habitually call goodness of 
 heart. Probably all will admit so much, but will begin to 
 disagree when the question comes as to the origin and 
 meaning of that internal morality. One will tell us that 
 the germ of a moral sanse was implanted in us at birth, 
 and became what we call Conscience: another that it is the 
 slow product of an emotional evolution: another still that 
 it came from the revelation which shone out in the life 
 and doctrine of Christ. This is not the time or place to 
 argue the question -which of these theories contains the 
 exact and precise trutJj. Our own concljlllusions quite delib- 
 
406 
 
 erately forraed point to the last of the three, the Revela- 
 tion which gave us in the doctrine and life of Christ the 
 highest ideal standard of Goodness and Truth. As to the 
 first it has come to be qiiite the general conclusion that 
 what we call Conscience is not the product of a separate 
 moral germ, but the entire attitude of the mind towards 
 conduct and action. As to the secDond, an evolution from 
 the non-moral to the moral, from the selfish motive to the 
 purely unselfish, is contrary to all that we know of the 
 evolutionary process in nature. One does not get figs from 
 thistles, especially without first having the figs. And so 
 we are led to some brief consideration of the last of the 
 three theories so far as it can be seen to have operated 
 upon and influenced the growth and quality of the Law. 
 
 For, when the torch of the Praetor was extinguished 
 in the West by the imperial consnand, a new light blazed up 
 in the East. There came One with a few fisherman about him, 
 revealing an inward morality of the highest and purest tijtpe > 
 Tuhich sat in judgment on the external morality of the Time, 
 and was destined to act upon it, and with it to lift the 
 moral standard of its attendeuit Law. That doctrine had to 
 struggle for its life. The Roman at first scanned it with 
 contempt and then fought it with vigor. The rabble of 
 Pagan Gods were not to be pushed out of Olympus easily. It 
 
407 
 
 took many lives and a red welter of blood to unseat Jupiter. 
 There came a few converts to the new Religion, mostly lowly 
 and humble people, but its followers had to meet secretly 
 and wear the aspect of conspirators. The instinct of the 
 Pontiff and his Flamens and Vestals recognized the inevit- 
 able conflict already in the air, and from their stronghold 
 in the Sacred Law of the City began to strike out savagely 
 at the daring and venturesome intruders. Persecutions 
 followed which burned the Christians as torches and flung 
 them to the wild beasts, until a day came when the Pagan 
 deities were unthboned, v/hen the jus sacriom was repealed, 
 and a Christian emperor put Christian bishops at the head 
 of the national church. 
 
 Henceforth thejtj^aoc trine of Christ, for iitoich and 
 for his life it appears impossiMe to account on any other 
 foundation than that of his Divinity or Inspiration, became, 
 relatively to the existing morality, anjjt exterior and ex- 
 trinsic forcas, operatiEDg from the outside, and impressing 
 its influence both upon conduct and character. It de- 
 nounced and sought to destroy that all-prevail.ing Selfish- 
 ness which was the core and the vice of external morality, 
 and sought to substitute in its room a love of God and love 
 of man above and beyond which no ideal of ethics can be 
 a possible conception. That doctrine furnished an impact 
 from the outside needed to open the way for the introduction 
 of a new ethical element. It faced the dominant selfishness 
 
4&8 
 
 of humanity with a perfect unselfishness; confronted Utility 
 with Altruism J what was self -regarding with what was other»- 
 regarding as well. Thence onward the external morality, 
 purifying itself as it grew, and further purified by the 
 leaven of the Gospel doctrine, re-acted upon the Law which 
 fed upon and was moulded by it. Legislation, judicial 
 reasoning, the thought of the Jurist began to measure them- 
 selves by the new standard, to have some awe of its criticism, 
 and draw from the treasury of a purified morality more 
 and more of its teachings. 
 
 That is the route by which Ethics got into the Law; 
 and as we make that ultimate statement we disclose what it 
 is that the Praetor has been helping us to chase through 
 the dark. 
 
409 
 
 XIII. 
 
 THE COMIMG OF COKTRACT. 
 
 it is a very natural supposition of those who 
 
 have never ini^estigated the subject that Contract was one 
 
 of the earliest products of social life: that out of the 
 
 primitive relations of men with each- other promises were 
 
 sure to grow and in some manner to be enforced as binding 
 
 obligations-. It is not without surprise that we find our 
 
 early view to" be founded upon mistake, and our life long 
 
 • 
 belief to be an error. It had, however, this excuse that 
 
 there was no one* to tell us the truth about it, or throw 
 
 open before us the gates of Historic study. In fact the 
 
 legal contract was of painfully slow growth, and cai&ej^ 
 
 quite late into the consciousness of the world. We do not 
 
 use the word "Contract" in that broad and populsir sense 
 
 which it has acquired of a mere mutual agreement, but in 
 
 the legal sense of the meeting of minds in a juristic act, 
 
 ft 
 
 recognized and enforced by the law, and the final and \ilti- 
 mate flower of which is the bi-lateral executory contract, 
 resting wholly upon concurrent promises. We find no such 
 conception prior to the Roman law, and it came not early but 
 
410 
 
 somewhat late in that. The world had oiaaaged to get eQong 
 without it. Society had mastered a rude conception of right 
 the invasion of which had bred the corresponding conception 
 of duty. Such law as existed, we have seen, was interwoven 
 with visible and tangible acts and facts which siaggested 
 an appropriate duty, and men enforced the breach of such 
 duty from the direction of tort or wrong and never from that 
 of Contract. The utter absence of euiy such liability at an 
 esurlier date is not only established by the silence of 
 History, but is further shown by the two substituted remedies 
 to T^ich we have already briefly refierred, and which were 
 the Oath and the Hostage. Even in the blaze of Athenian 
 intelligence a promise unsworn to was in no manner enforce- 
 able, and sworn to derived all its vitality from the form 
 and sanction of the oath. Pollock quotes from Newton the 
 fact that the master who wished to enfranchise a slave could 
 make no promise or enter into no agreement which could stauid 
 as a protection to the liberty granted, but was driven to 
 the process of selling the slave to Apollo at Delphi, and 
 pledging his faith with sureties that the title of the God 
 should be undisturbed. The vengeance of an insulted Deity, 
 a sacral for lack of a legal sanction, was thus put between 
 the freedmeui and any attempt to renew his bondage. And this 
 
411 
 
 was because the mere promise or agreement was not enforce- 
 able by the law of the Time, and validity could only be 
 given to it by placing it under the shield of a religious 
 protection. We saw the same process in the fides facta of f 
 the Salic law. A similax thing was true in the English 
 courts back of the fifteenth century. Most simple contracts 
 as we define them had no force or validity in the temporal 
 courts, but he who sought redress for a broken promise could 
 cite his adversary into the Bishop's court where the eccle- 
 siastical Judge, swinging the power of penance and excom-. 
 munication and making the case one of conscience, could com- 
 pel performance if he saw fit. And so there was no obliga~ 
 tory force in any agreement resting on promise merely. 
 That, scattered about the customs of tribes and of nations, 
 there were agreements containing the rudiments of Contract, 
 promises made and some effort to enforce them, is certainly 
 true. We find debt and the mortgage in the Greek law; the 
 loan of cattle on agreed terms among the Kelts and regulated 
 in the Senchus Mo r; title to the alod and to a share of 
 field and pasture among the Germans; sale and bailment in 
 Israel and among the Hindus; relations which seem to indicate 
 binding agreements: but which we have seen stood upon duties 
 instead of promises: duties born of the facts of the situa- 
 
41S 
 
 tion, or flowing from the status of the peirties rather than 
 from any conception of Contract. Indeed we have found agree- 
 ments executed by an actual transfer to he often merely ten- 
 tative and revocable long after they were made. As we think 
 about this absence of Contract we are not so much surprised 
 for we begin to see that it cannot come until Law, definite 
 and enforceable, shall eLcisej until there are tribunals 
 capable of ascertaining whether a promise has been made or 
 not, whether it ought or ought not to be enforced, tribunals, 
 too, armed with power to compel performance and punish a 
 breach. And this difference in the ground of redress, — 
 between Duty and Promise, — ^made itself manifest very early 
 in the Roman law, when there appeeired the loan upon interest. 
 An agreement to lend was of no force: there was required 
 an actual delivery amounting to a causa or operative cause 
 or reason for legal intervention, and then it involved the 
 duty of return of the exact equivalent, and that .j ure gentium 
 or by the law of Nature j while there was no sucii duty to 
 pay interest, and that, as Professor Moyle asserts, could 
 only be recovered where an additional agreement to pay it 
 had been entered into by the precise formality of a stipu- 
 lation. 
 
 It HOW the Roman law began and prosecuted its work in 
 
 framing the early doctrine of contract is a subject which 
 
 XBXli 
 
415 
 
 we desire to make plain with such completeness as we have 
 been able to compass. In the effort we shall be igurgely 
 guided by the very lucid and acute emalysis of Sir Henry 
 Maine to whom all credit will be due , and shall vary from 
 it only to accomplish an easier understanding than his terse 
 and compact sentences may furnish, or to supplement his 
 view with facte from other sources, and possibly also at a 
 few points to differ from him though always with hesitation 
 and deference. 
 
 Probably the Roman development began with the Nexum. 
 Maltby calls it the oldest form of contract, and Sohm the 
 form or process of a loan. Each is right, viewing the sub- 
 ject from his own point of time, but both are wrong viewing 
 it from its beginning. In its origin it was clearly not 
 an executory contract at all, but the legal method of making 
 a valid sale. The primitive idea of such a sale was always 
 fir ready money. There was no promise; there were only 
 things done, completed. The notion of a credit and a con- 
 sequent debt was a later growth. It was a formal conveyance 
 and not a ocnntract executory. The ceremony itself dis- 
 closes that truth. Observe its details as Maine describes 
 them. The transaction is the sale of a slave. The parties 
 appear before the proper officer with five citizens as wit- 
 nesses. The libripens is present with his scales to weigh tlB 
 
414 
 
 brass money as yet uncoined. The slave is delivered by the 
 vendor as the property of the vendee and the latter delivers 
 back the purchase money, the scales are struck wit|i the 
 ingot, and the transfer is legally complete and effectual. 
 Plainly, a formal conveyance and nothing else. Indeed Gaius 
 may be cited to that fact. He says, "It must be remembered 
 that conveyance by Mexum is peculiar to Italian land: there 
 is no Nexum of provincial land." 
 
 But the word Nexus means a bond or yoke, a holding 
 of things together by a tie or ligament. When vendor and 
 vendee met before the magistrate with the subject of Bale 
 the vendor was Nexus , bound to deliver the property, but 
 that being done the Nexus was ended as to him emd passed to 
 and acted upon the vendee. He was Nexus , bound, until he 
 delivered the purchase price. Of course it was not long 
 before someone saw that by this ceremony a loan of money 
 might be brought within the protection of the law. Oases 
 first occurred in which the thing sold was delivered but the 
 down payment was not made, and so credit was given and a 
 debt resulted. The debtor became Nexas , bound, until he paid 
 the purchase price, and was adjudged the bond slave of the 
 creditor. Now for the slave or the thing delivered put 
 money with the same deferring of re-payment. The lender 
 becomes Nexu s till he delivers the money lent, and then the 
 borrower becomes N^^s for the whole period of credit, and 
 
415 
 
 so practically stands as a judgment debtor until the loan 
 is repaid. St this poSnt Sohm is right : the Nexum is a 
 loaji to be repaid in the future, and what we have is in 
 truth a unilateral contract; performance on one side which 
 furnishes the caasa or ground of the Nexus, and a valid 
 agreement to repay which the law will enforce. We say an 
 agreement, for, though there was a duty to repay which the 
 law would feel and enforce, yet tir was a duty postponed 
 by agreement, auad only to be eriforced in accord with that. 
 One interesting feature of the Nexus Maine points 
 out. He suggests that it serves to explain the invariable 
 Roman severity toward the debtor in default. His argument 
 is that the N^us in its eeurlier stages contemplated only 
 sales for ready money euid no such thing as delay or ^ 
 credit was imagined. When such cases did occirr, therefore, 
 they were regarded as anomalous and almost inexcusable, and 
 so all sympathy ran to the creditor deprived of his ready 
 money, and much of blame attached to the debtor for not 
 having it. We venture to think that there is a^aetter explana- 
 tion founded upon the stronghold of the archaic man upon 
 his property. He held it by force of his grasping hand, 
 and was always reluctant to loosen that hold. If he deposited 
 it for safe keeping or for hire we have found him firmly 
 insisting on its return and accepting no excuse instead. 
 
416 
 
 and noted how, if he made a loan which was unpaid and pur- 
 sued his debtor, he did so from the direction of tort, and 
 sued, not on a broken promise, but to recover his own pro- 
 perty unjustly withheld. Even in the later time of Justinian 
 title did not pass until the price was paid except, indeed, 
 where credit was expressly given. This strong hold of the 
 owner shows itself even yet, in our milder law ^ich allows 
 stoppage in transit where the buyer is insolvent, and gives 
 to the vendor of land an equitable 14en for the purchase 
 money. And thus, as the bailor in the days of Self -Help 
 seized his own property or a liberal equivalent, it was qiiite 
 natural for the lender of money, where he could get nothing 
 else , to take the borrower himsftftf who haul consumed it and n^ 
 work the debt out of jtibi him as a slave . 
 
 It is interesting also to observe how the figurative 
 idea involved in the Nesaas has survived through suLl the 
 changes of the centuries. We shall see it again in the later 
 and more matured form of the Rozaan law, but even in our own 
 time we may recall how the highest and most solemn form of 
 the acknowledgment of a debt and a promise to pay it is 
 still the Bond, our Nexus , and the parties to it the obligor 
 or person tied and the obligee to whom he is tied. 
 
 But the Nexum confused a loan with a^ conveyance by 
 serving as the form for both. Undoubtedly, as time went on 
 
417 
 
 and commerce and business grew in the intervals of war and 
 out of the plunder of wary the nexum became primarily the 
 mode of making a loan, and it seemed priident to sepeorate 
 conveyance from it and give it a new name. That was done, 
 and a new form was adopted called mancipium or mancipatio ; 
 a compound of two words signifying hand-seized. Our own 
 word applied to the freedom given to the slave, 'emancipa- 
 tion', is a derivative of the Roman expression and means 
 literally out of or away from hand-seizure. Gaius gives 
 us the form of the ceremony. He says, "in the presence of 
 at least five witnesses and a Roman libripens he who re- 
 yceives the other in mancipium, holding the aes says: "I 
 declare that this msmi is mine by Quiritarian law: I have 
 bought him with this metal and these metal scales" i after 
 which he strikes the scales with the piece of metal and 
 gives it as the price to him from whom he receives the per- 
 son in mancipium ." This was the formal executed sale. 
 We should not let it pass without some notice of its de- 
 tails. 
 
 One of these was that the vendor always and regularly 
 brought with him for delivery and actually delivered the 
 thing to be sold, so that there was invariably a visible 
 and tangible fact, and that fact an actual causa or ground 
 of the transaction wMch could be seen and known and to which 
 
4l8 
 
 those present could testify. So rigid was the rule that 
 where the subject was incapable of the required manual de- 
 livery some part or portion was handed over as representa- 
 tive of the whole . If it was a flock of sheep one of the 
 animals or its fleece was delivered, and if an area or lot 
 of land a clod of earth was passed to the buyer. We our- 
 selves continually follow the Roman example when we deliver 
 the keys of the warehouse to pass the goods stored within, 
 or make a sale controlled by the Statute of Frauds valid 
 by a delivery of some part of the property sold. We ob- 
 serve also that at least five witnesses were to be present. 
 They were essential in an age when writing was little known 
 and the rare accomplishment of a few usually studying in 
 a cloister, and when the need of proCf to rebut an accusa- 
 tion of theft could only be met by a public and open transit 
 fer of the property which the witnesses could see auid remem- 
 ber and to which they could testify. It is Impossible also 
 to repress some curiosity about the libripens . He was at 
 first indispensable to weigh and test the money delivered 
 as the purchase price. That money was bronze ingots pass- 
 ing altogether by weight, and so needing scales of undoubted 
 authority, and capaocity to test tha bronze alloy. When 
 money began to be coined and pass by simple count he, of 
 course, became superfluous but nevertheless was retained 
 
419 
 
 as an essential paxt of the symbolism which 
 chaxacterized the ceremony. 
 
 As time went on the narrow sway of the Nexim was 
 replaced by a whole group of Contracts, developing in many 
 directions and maturing into a complete system of sub- 
 stantive law. The Roman jurists put their conception of a 
 contractual obligation into a strong figure of speech. 
 They described such an obligation as a chain, — vi nculum 
 .juris . — a bond holding prisoner those upon whom it was 
 riveted, — a tie linking with infrangible links the parties 
 to the aggreement. The underlying thought of the old 
 Nexus was thus transferred to a dominance over the new system. 
 The obligation, obligat io » the tying of the ligature, that 
 is, the enforceable quality and characteristic, was separated 
 from the agreement itself. The latter it called a pact or 
 convention, and it was a nude pact until it in some manner 
 attracted to itself and was clothed with legal obligatina. 
 We still speak of a nudum pactum , describing it as an agree- 
 ment in which the minds of the parties have indeed met but 
 as being without consideration and so legally incapable of 
 being enforced. But the Roman Code regarded every agreement 
 as a nude pact until the chain of the Oblig;atio was attached, 
 and that result followed, not so much upon moral qualities 
 of the pact justifying an enforcement, as upon the makino- 
 
420 
 
 of the agreement in one of four distinct and specified 
 modes on account of M»hich alone the Law attached the 
 Obligatio and drew the chain of liability about the contract- 
 ing paxties. As Maine tersely puts it, the Pact plus the 
 Obligation made the legal Contract. The Pact minus the 
 Obligation was nudum , naked, barren, without force. The 
 flbligatio could be attracted and its chain riveted upon the 
 agreeing petrties only where the Pact was made in one of four 
 ways, which were according to Gaius " aut re, aut verbis , 
 aut litter is. aut consensu" ; that is by something done, 
 by something said, by something written, by mutual consent. 
 But what is the Pact or convention which must first exist? 
 We are warned that it does not consist of two precisely 
 similar elements contributed by two consenting pstrties, 
 but on the contrary of two dissimilar elements springing 
 one from each. There must be a promise not only proffered 
 on the one side but accepted on the other; as Poste states 
 it, there must be a signification by the promising party of 
 his intention to do the acts or to observe the forbearances 
 which he promises to do or observe, and a signification by 
 the promisee that he expects that the promising party 
 will fulfill his promise, j^nd he adds "without significa- 
 tion of the intention there is no promise, without signifi- 
 cation of the expectation there is no reason for enforcing 
 
421 
 
 the promise. The consensus of the parties is the chiming 
 or going together of this intention with this expectation." 
 Austin repeats this same analysis as that of the Roman 
 lawyers, but with a criticism not at present material. 
 We have now the Pact on the one hand and the Obligatio on 
 the other, and when they come together there is a contract, 
 and when^do not there is none. 0ur next inquiry is when 
 they do come together. We may wisely follow the order of 
 Gatus who begins with what were termed real contracts. 
 And here we must put up a danger signal to guard against 
 accident. Nowadays a real contract is one relating to 
 land or some interest in land. That was not at all the 
 Roman meaning. They meant a pact re, founded upon something 
 done, some part performance, and applicable whenever a 
 thing belonging to one person has been placed by him in 
 the possession of another, that is, where there has been 
 em actual delivery of something on one side, or some right 
 of status or property is involved. There were four of these 
 real contracts, and they were (l) Matuum or the loan of 
 something to be returned in kind, (2) Commodatum , or the 
 gratuitous loan of an article to be used by the borrower, 
 (3) Depositum or the delivery of a thing for custody to be 
 re-delivered on demand without compensation, and (4) Pignus 
 or pledge where a thing movable or immovable is transformed 
 
^22 
 
 as security for a debt. No one should grow restless undef 
 these Roman names and the division of contracts which 
 they represent. While Blackstone did that, and gave in 
 his Commenteuries only three scant pages to the whole 
 law of Bailment, we shall find that Story has elegantly 
 and fully elaborated that law, and/ in doing it has drawn 
 almost entirely his whole doctrine from the civil law. 
 Every page bristles with the Latin of the Institutes cuid 
 the Digest, and the English lawyers, abandoning the dry 
 wells of immemorial custom, have come to America and the 
 civil law for their fountains of bailment. 
 
 Beyond the four real contracts which we have named 
 there was a ^oup of four others called Consensual. In them 
 any contemplated delivery was disregarded and the contract 
 stood wholly upon the mutual and interlocking consent — the 
 Consensus — of the contracting parties. These four were 
 
 (1) emptio venditio , or the contract of purchase and sale, 
 
 (2) iocatio conductio , of letting. to hire, (3) societas, 
 of partnership, and (4) mandatum, of commission or agency. 
 In no one of them was an immediate delivery of anything an 
 essential element although often contemplated, but yfoat was 
 absolutely necessary in every case was the double or mutual, 
 or bi-lateral consent and premise. These four contracts 
 sweft over a very wide area, covering the principle needs 
 
423 
 
 of business and regulating its aartivities. The two groups 
 together, the real and consensual, making eight in all, were 
 thus specifically naaed, described and designated, and to 
 each of them the Obligatio was attached, so that from being 
 mere Pacts they became actual and veritable contracts. 
 They were also called Formless because depending in one 
 group upon a delivery and in the other upon a mutual consent 
 and not upon the form or ceremony adopted in their making. 
 In that manner they were distinguished from the two remain- 
 ing contracts, aut verbis^ aut liter is , that from something 
 said or something written, or, to use Main's nomenclature, 
 the "verbal "and the "literal". These depended for thdir 
 validity not upon the subject involved or the nature of 
 the transaction adopted, but upon the form and ceremony 
 accompanying, and therefore were denominated Formal. The 
 verbal contract is thus described in the Institutes: "An 
 obligation is contracted by word of mouth by means of a 
 question and answer when we stipulate that anything shall 
 be given to or done for us. It gives rise to two accbions,*—* 
 the c ondictio, when the stipulation is certain, and the 
 actio ex stipulatu when it is uncertain. The term "stipu- 
 lation" is derived from st ipulum . a word employed by the 
 ancients to mean "firm", and coming perhaps from stipes , the 
 trunk of a tree." That is the definition and explanation 
 
424 
 
 which the Justinian revisers give us. Sandatr's commentary 
 describes the stipulation as, properly speaking, not a con*- 
 tract, but a means of making one, a solemn form giving valid- 
 ity to a mere pact or agreement. The formula only bound 
 one party and he the promissor. It was, thus, unilateral. 
 If the promissor desired to bind his promisee he must him- 
 self turn stipulator and compel a promise to himself as 
 promises,. It was the latter, the person to be benefitted, 
 the one who sought to bind the other, who put the form^ 
 question, as thus: " Spondes ? Do you engage yourself? 
 Sponde o . l<jL do engage myself. Promittis ? Do you promise? 
 Promitto. I^ do promise. Fide promittis ? |o you promise 
 on your good faith? Fide promitto . I do promise on my 
 good faith. Fide jubes ? Do you make yourself guarantor J 
 - So y-ou mak e yourself guj.i ' ai ' ^t or ? Fide jubeo . I do make 
 myself guarantor, Dabis ? Will you give? Dabo . I will 
 give. Facie s ? Will you do? F acieua . I will do. Observe 
 the wide range of liability which this formal contract 
 permits, and its tc^ency and its d4stiny to absorb and 
 swallow up the others and become sole master of the field. 
 At first the precise words of question and answer were re- 
 quired: no synonums, no expressions equivalent or tanta- 
 mount, but the exact and specified words both of question 
 and answer ; and the old nexum which the verbal contract 
 
425 
 
 replaced left behind it some of its severity of form. But 
 that did not last. Active, hurried, incessant business 
 would not bear it, and refused to be cramped by a rigorous 
 form. In the time of Leo the change came, and any equiva- 
 lent or synonomous words would suffice. Plainly, at that 
 stage the fact and not the ceremony became paramount and 
 the verbal contract stripped of its wrappings, freed from 
 its hampering forms, stood out before the world and entered 
 upon its dominating career. 
 
 There was still, however the contract aut litteris 
 or in writing. The scope of this was very narrow. It grew 
 out of the Roman habit of keeping regular household books. 
 Poste calls them a nation of bookkeepers. Each citizen 
 had his daybook called Adversaria into which all transactiom 
 were entered. At the end of the month they were posted into 
 the T abulae or ledger. Dionysius of Halicarnassus relates 
 that every Roman had to take an oath once in five years 
 that he kept honest books of account. Be that as it may, 
 the literal obligation originally called expensitatio re- 
 sulted from this habit of bookkeeping. If a creditor had 
 entered in his ledger a debt due him from a debtor, and 
 there appeared on the ledger of the latter a corresponding 
 entry showing the same fact, or if it was established that 
 
426 
 
 the entry on the creditor's book had been made with the 
 knowledge and assent of the debtor, then the entry became 
 conclusive and the Obligatio at once attached. This was not, 
 as at first view it would seem, a mere matter of evidence. 
 It produced a separate and independent contract upon which 
 a mem became liable utterly regardless of the underlying 
 facts. It was often used to convert a Formless contract 
 into a formal one for the sake of the sharp and strong 
 judgment which followed. The old contracts, say of purchase 
 and sale, was extinguished -when converted into the literal 
 contract, and thereupon judgment accompanied by the sponsio 
 poenalis would add one third to the defendant's loss. 
 
 There were thus in the Roman system four real con- 
 tracts, four consensual contracts, the verbal contract, 
 and the literal contract, metking ten in all. But there was 
 something else outside of these. There was what were called 
 innominate contracts, out of the usual order, and unnamed. 
 TIRiere an agreement did not take the shape of any of the 
 ten species of contract recognised in the civil law, says 
 Sandar, it was, strictly spesiking, not a contract at all, 
 but if one party had executed it the praetor would force 
 the other party to perform it also. These were called in- 
 nominate contracts, and examples of them are permutatio or 
 exchange of one^ article for another, compromise, conditional 
 
427 
 
 sale and permissive occupancy. 
 
 Beyond these recognized and regulated contracts 
 every other convention or agreement was a nudum pact um 
 which could not attract or draw to itself the Obligation 
 and was unenforceable. It could not be eiff irmatively en- 
 forced or serve as the subject of a legal action. But 
 it was not irtiolly worthless. It had a value for defensive 
 purposes. Sandar refers it to an innovation of the Praetor. 
 The Pact not yet a contract could be used by the defendant 
 to defeat or mitigate a liability and ere long, as Maine tells 
 us, there came a Praetor, — marvellous prototype of a long 
 line of Chancellors, — ^who announced in his edict that he 
 would grant equitable actions up@n Pacts wlich had xom 
 never been matured at all into contracts provided only that 
 such Pacts were founded on 8[ consideration. 
 
 We must suppose that Maine uses the Irord 'considera- 
 tion' as a fair translation! of the Roman word ' causa ' , and 
 that what the Praetor did say was that he would enforce 
 Pacts founded on a causa. To treat that word as the exact 
 equivalent of ^at we call a consideration is surely a mis- 
 take and a begging of the question whether such a basis of 
 Contract existed in the Roman law; and so we have hitherto 
 translated the word causa as the operative cause or reason 
 lying at the bottom of the transaction and the law's en- 
 
428 
 
 forcement of it: — a phrase for which as matter of convenience 
 we shall substitute the single word causa or 'cause' leaving 
 its meajiing open to inquiry. The mistaken translation, if 
 it be such, was very excusable for Holmes tells us that the 
 word 'cause' was used for consideration in the early years 
 of Elizabeth, with reference to a covenant to stand" seized, 
 to uses" and cites cases in which it was used in the same 
 sense in actions of assumpsit, and Blackstone evidently 
 regarded the two words as meaning the seune thing; still the 
 Question of real identity remains. 
 
 Judge Meurkby undertsLkes, somewhat dogmatically, to 
 answer the inquiry. We find in his xts±gEmKa:fc Elements of 
 Law the following statement: "A contract we are told is 
 made upon consideration when something is done, forborne, 
 or suffered, or undertaken by one paorty at the request of 
 another which is made the foundation of the promise of 
 that other 1 This rule about consideration is not recog- 
 nized by any other system of law in the modern or ancient 
 world." We confess our surprise at the sweep;^/!^ of this 
 assertion. In one sense the statement is correct, jt is 
 quite true that the common law consideration which goes 
 beyond a mere quid pro quo and is made the test of contrac- 
 tual validity is peculiar to the English law. But if it is 
 meant to say that neither the Roman law nor the continental 
 
429 
 
 systems foimded upon it recognize as an element of contract 
 the presence of consideration we do not agree. We have 
 just seen how the Praetor began to enforce Pacts not recog- 
 nized as within the arbitrary catalogue of Obligations pDO- 
 vided that they were founded upon a causa . They ceased to 
 be nudum : the presence of a causa clothed them with the 
 -tite- vestments of validity. That word unquestionably meant 
 the operative cause or beneficial consideration which in- 
 duced the promise. The Code Napoleon has this article. "An 
 obligation without a cause or upon a false cause or upon 
 an unlawful cause can have no effect," It is true that the 
 essential "cause" of the French law is something which does 
 not exactly and completely correspond with our considera- 
 tion, for it includes a promise of charity; but neverthe- 
 less a mere meeting of minds is not enough to constitute 
 the valid contract, and there must be a cause Titiich, if 
 unlike our consideration in some directions, is like it in 
 others. T^fir- Spanish Code enacts that there must be a con- 
 sideration for an "onerous " contract or a "remunerative" 
 contract, but that in a contract of "pure beneficence" the 
 charitable purpose shall be a sufficient cause. The last 
 provision is significant. It indicates that purely gratui- 
 tous promises were not commonly enforced, and to save the 
 very meritorious one to give in charity the beneficent 
 
430 
 
 intent was legislated into a sufficient consideration. 
 
 Wliile, therefore, it should be conceded that the 
 English law developed its own theory of consideration on 
 lines and in a manner and to an extent peculiar to itself, 
 we do not think it will quite do to say that its main and 
 underlying idea was altogeMer a novelty and an original 
 product of English law, or to deny that it had its proto- 
 type or at least its germ-tho'ught in the air of a more 
 ancient law. For it is fully admitted even by Pollok 
 and Maitland that early Germanic law did not enforce purely 
 gratuitous promises, and all the contracts of the Roraan law 
 had some substratum of fact beneath them quite different 
 from the mere enforcement of a gratuity: and whenever there 
 was a refusal of such enforcement the notion of an essential 
 consideration must have prevailed even if unconsoDious to 
 the thought of the time and by no means erected into a test. 
 
 But see how momentous the Pretorian Edict was, and 
 
 of 
 how it opened an unobstructed path to the coming/unfettered 
 
 Contract. The four Consensiial contracts did indeed rest 
 
 on mutual consent, but were strictly limited to four sorts 
 
 of dealing. These were, as we have said. Sale, Partnership, 
 
 Letting and Hiring and Commission or Agency. Further tham 
 
 these Contract by Consent did not go. Prom all outside area 
 
 of agreement and Pact it was excluded. And so when the 
 
431 
 
 Praetor acted he could not add to the fixed scope and range 
 of the consensual contracts. He had no authority to meddle 
 with or modify the acimitted law of the City: and so he 
 boldly set up a Pretorian law, built after the model and 
 upon the essential characteristic of the Consensual Contract., 
 and decreed that he would attach the Obligatio to Pacts of 
 all sorts when founded upon a Causa . 
 
 If you ask why the Praetor attached this condition 
 we may be hesitant about the answer. There must have been 
 some reason: there must have been something in the Roman 
 Law to suggest or induce it. It was not imposed arbitrarily 
 and without pre-existing suggestion. And when we look to 
 see what that was or might have been we can find it nowhere 
 else except in the same reluctance to enforce a purely gratui- 
 tous promise, when known to be such, which certainly esEisted 
 in the old Germsinic Law. Such promises, if unfulfilled, 
 worked no harm to the promissee. No pressure of business 
 necessity demanded that they should be enforced, irrespec- 
 tive of that possible enforcement which perhaps might creep 
 in through the forms of the general law. The fact seems to 
 indicate what the Roman jurist meant by the use of the word 
 causa , but we can only grasp that meaning intelligently and 
 accurately if we first try to learn what it was in each of 
 the Civil contracts which constituted its causa , auid produced 
 
452 
 
 the protecting or enforcing intervention of the law. When 
 ■ne know that we shall be able to see how far it does or 
 does not answer to our theory of consideration. 
 
 The first four Contracts called Real were cases of 
 bailment and were enforced jure gentiiam and upon the idea 
 of a^t duty born of the facts to return the thing bailed or 
 its eqiivalent, rather than upon any promise or agreement 
 to make that return. To bring them within the range of 
 Contract it was needed out of the duty to imply a promise 
 to perform it, and we seek to find on what that promise rested 
 as a causa justifying the attaching of the Obligatio . Kow 
 in the Mutuua one man delivers to another something of his 
 own to be consxaned by that other and returned only in kind. 
 Of this Gaius says "we transfer our property on condition 
 that the receiver shall transfer back' to us at a future time 
 not the same things but other things of the same nature." It 
 is plain that the fundamental fact v^ich breeds the duty or 
 the promise of return and so becomes the causa of the Con- 
 tract is the harm to the bailor in parting with his property, 
 fiuid the benefit to the bailee in the consumption of it. That 
 is the vital and basic fact which sets the law in motion, 
 by whatever name you please to call it. The sarne thing is 
 true of Depositiaa or the delivery of a thing for custody, 
 except that the benefit accrues to the depositor and the 
 
453 
 
 harm in the shape of care and oversight falls on the bailee. 
 Tl?hen the bailee takes the custody of a thing with a right 
 to use it until the return is due, that is Commodatum, and 
 there again we find a causa which shows in any event risk 
 and so hairm to the bailor and benefit to the bailee. The 
 causal fact at the bottom / of the transaction is still more 
 apparent in Pignus or the Pledge , where one lends and the 
 other gives security for the re-payment. It is evident as 
 to the four real contracts that, whether regarded as based 
 on duty or on contract, the thing which gives them validity, 
 which induced the Roman to draw the chain of the 0bligati6 
 about them, was the very identical thing which we now call 
 consideration. 
 
 Turn now to the four Consensual contracts resting 
 on mutual promises. Recall that the promise which one made 
 had to be accepted by the other before there was any reason 
 for its enforcement. The promise made was of no validity 
 until the acceptance was given, and the acceptance was only 
 effective while the offer remained open. The causa here 
 was that separate but interlocking consent which a little 
 while ago we described. That causa ia exactly reproduced 
 when we say in our law that one promise is the considera- 
 tion for the other. If it be said, as it very well may be, 
 that the Rpman consensual contract had no basis of present 
 
424 
 
 valuable consideration, but only a causa or reason for its 
 making, and that the fact discloses a difference between 
 the two expressions, it may be answered that the very same 
 thing will hereafter be shown to be true in the Common Law 
 of the bi-lateral executory contract where the agreed con- 
 sideration is not present but contemplated to accrue in the 
 future. Both cases may be regarded as, in a sense, anoma- 
 lous and outside of the current generalization! yet one muet 
 admit that the Roman causa had ^reader range than the 
 English consideration and so %e are not justified in re- 
 garding the two as identical. 
 
 When we pass to the formal contracts, the Verbal and 
 the Literal, we strike upon a difficulty and find our path 
 obstructed. These contracts depended wholly on their form. 
 That alone gave them validity regardless of the underlying 
 facts. There is no chsce for any causa when facts are 
 nothing and form is everything. That must be granted, but 
 go a little further. While a causs^ was no element of the 
 formal contract the want of it could be introduced as an 
 affirmative defence by an except io doli . That except io , 
 as we have explained, let in every equitable defence and 
 lack of a gausa was one, Gaius says this: "If, for instance 
 I have made you solemnly promise to pay me a sum of money 
 
435 
 
 as a preliminary to my advancing you the money, and then 
 never advanced it ; I can sue for the money for you axe 
 bound by your formal stipulation, but it would be iniqui- 
 tous that you should be compelled to fulfill such a promise 
 and therefore you are permitted to impeach my claim by the 
 exception of Fraud." There you have it. Wauit of consid- 
 eration is a defenoB amounting to fraud. But the obstruc- 
 tive form soon disappeared, and the formal contract became 
 formless. Any words of agreement would answer and the con- 
 tract became purely consensual. 
 
 We might analyze in the same way the innominate 
 Contracts with a certainty of the same result, but have 
 said quite enough to show that those who deny the presence 
 in the Roman law of the elements of our consideration have 
 not studied Gaius and Justinian very faithfully. It is 
 true that the Jurists did not set up consideration as a 
 test of contract -validit y, and we never cease to wonder 
 how it happened that they did not. They seem to have been 
 so enmeshed in their forms and ceremonies as not to have 
 seen what was directly before their eyes. Pollock has 
 noted this curious fact, g® says in his Principles of Con- 
 tract: "Thus the Roman theory, whether in its classical or 
 modern shape, falls short of the completeness and common 
 sense of our own: but only one step was wanting. If the 
 
456 
 
 Roman lawyers or the Civilians in modern times had ever 
 asked themselves what were the common elements in the 
 various sets of facts which under the name of causa made 
 various kinds of contracts actionable they could scarcely 
 have failed to extract something equivalent to our Con- 
 sideration. The fact that they did not take that step is 
 much more difficult to account for than the fact, if a 
 fact it be, that we did." 
 
 Sir Frederick might have stated the case more strong- 
 ly for the Bench and Bax of England. To them should be 
 given the credit of a clear and logical evolution of the 
 doctrine of consideration as the basis of the legal contract. 
 They saw, what the Romans did not, that, wherever a purely 
 gratuitous promise was to be excluded from legal protection, 
 the whole group of actionable facts underlying contract 
 would betray inevitably and Always some detriment to one 
 or benefit to the other of the contracting parties, and 
 could be gathered into the one generalization of a Consid- 
 eration. How they did that, what difficulties they encoun- 
 tered and how they mastered them we shall see when we come 
 to consider the way in which Contract was developed in 
 England. 
 
457 
 
 XIV 
 
 JUSTINIAN. 
 
 Three Codes marked and illustrated the growth 
 of the Roman law between the publication of the Decemvir al 
 Tables and the final and authorative compilation executed 
 under the orders of the Emperor Justinian. This period 
 covered about a thousand years during which the Civil law 
 showed in its progress the working of all the formative 
 elements which we have sought to disengage from the general 
 mass of the history of Kome. Chief among them were the two 
 which our previous discussion has explained and emphasized, 
 and which were the struggle of the Plebeians to gain for 
 themselves equality of right in the State, gmd the effort 
 of the Praetors to substitute for the narrow formalism of 
 the Quritarian system a broader and better law, foxinded 
 upon that natural reason which held in solution all the 
 morality of the time. During this period also two marvel-, 
 lous changes in the civil and religious condition of Rome 
 occurred which added their influence to the legal develop- 
 ment continually operating. The Republic fell, and the rule 
 and authority of the Emperors succeeded: and the new doctrine 
 
438 
 
 preached by the Christians with its high standard of morality, 
 and its war upon the Pagan divinities and superstitions , 
 gradually permeated the citizen mass and Jfi changed their 
 fear of the Olympic rabble to a worship of one Supreme 
 Being regarded as all goodness and truth. Rome became very 
 busy with what approached the conquest of the world and 
 stood always armed and was constantly victorious. But 
 victory demanded legions and the legions re<ii ired men. 
 These, coming largely from the middle class, were with- 
 drawn from labor and agriculture, leaving their places to 
 be filled by slaves, until soon there was no middle class 
 left from the destructive demands of the army, and there 
 only remained nobles and proletarii and a constant suc- 
 cession of servile revolutions. At last came the inevit- 
 able master and the imperial power and reign of the Oaessirs« 
 That change involved wome modifications in the administra- 
 tion of justice flowing from what were described as the 
 imperial constitutions which were in form and substance 
 the paramount and peremptDuy decrees of the law-snaking power « 
 They added largely to the bulk of the written Codes, and 
 at fixed points and pivotal occasions worked some ar^i-* 
 trary chagges, but did not displace the nearly finished 
 work of the Praetor, fortified and broadened by the con- 
 stant study and multiplied answers of the juris -consults. 
 
4S9 
 
 and ths resultant consequence was an enormous mass of legal 
 doctrine, accumulating like the waters of the Flood, breed- 
 ing confusion and contradiction, and likely to be xaxs 
 crushed by its own weight. Of course it was natural that 
 some of the brighter and abler minds devoted to the study 
 of jurisprudence should try to evolve order out of the 
 chaos. The effort in such an emergency almost invariably 
 takes the form of a Code, the purpose of which is to fix 
 and crystallize and simplify essential rules of legal action. 
 
 Three of these Codes, followed the Twelve Tables 
 and preceded the work of Justinian, iphey were those of 
 Gregory, of Hermogenes, and of the emperor Theodosius. 
 That of Gregory comes to us only in fragments. It was 
 composed almost if not entirely of imperial constitutions 
 placjed under separate Titles, and then in the order of their 
 date. Of these about seventy have survived, though we know 
 that the total must have been very much greater. The 
 Title denuptiis , which dealt with marriage in its legal 
 aspects, is reported to have contained by itself thirty- 
 two, and that standard of quantity indicates loosely but 
 with great probability how much of the work of Gregory 
 must have been wholly lost. The Constitutions which he 
 recites begin with the emperor Severus and end with Dio- 
 cletian and Meiximian, and so cover the century from 
 
440 
 
 A.D. 196 to 396. Gregory is unknown to us except in connec- 
 tion with this Oode. Like Gaius, he seems to have been more 
 student thaui stateaman, to have lived a quiet life with 
 his books, — ^those faithful friends which never fail the 
 man who loves them,— and to have made no impress upon the 
 disturbed politics of the time; but, after all, baffled 
 oblivion by linking his name to one of those supreme efforts 
 for the welfare of the race which live on in an undying 
 memory. His Code was one of the reservoirs from which 
 the Justinian revisers drew their most valuable material. 
 
 Of the Code of Hermogenes and of the man himself 
 we know very little. There have escaped destruction only 
 about thirty-two Constitutions, and but a few articles 
 and their divisions: not enough to be seriously useful, or 
 disclose the learning and capacity of the author, t^i® 
 Constitutions repeated cover the reign of Diocletian and 
 Mazimian and Diocletian and Constantius, to some extent 
 the identical period chosen by Gregory. Apparently, Her- 
 mogenes, outside of his Code, was a very able and learned 
 jurist who wrote an abridged or condensed treatise on the 
 law in six books from which the Digest of Justinian made 
 nearly a hundred extracts: and those are said by Ortolan 
 to be so neat and comprehensive and accur&te as to lif* 
 their author easily above the writers of his age. 
 
441 
 
 There were other authors, traces of whose juridical 
 labors have surviWd, and a large number and endless quan- 
 tity of the amswers of the Jurisconsults, so contradictory 
 and so involved that in the time of Adrian the difficulty 
 was sought to be remedies by a special constitution, se- 
 lecting out the advisers to be trusted, and dictating the 
 manner of appealing to their authority. The process itself 
 which produced these responses was necessarily vicious, 
 and its consequences had grown to be discouraging and 
 appalling. Adrian decreed that five of the modern jurists, 
 who were Papinian, Paul, Gaius, Ulpian ajid Modestinus, shouH 
 alone be regarded as authority, except so far as they them- 
 selves cited with approval the texts of the elder jurists. 
 The chief and dominant place was assigned to Papinian, 
 whose opinion was to prevail where there was disagreement, 
 and if an opinion of his was lacking the Judge could select 
 whom he would follow. 
 
 Then came the Theodosian Code which recited the dif- 
 ficulties to be encountered and the evils to be remedied. 
 It asserts that the number of those who were familiar with 
 the Civil law in all its details was astonishingly small; 
 that not more than one or two had an exhaustive knowledge 
 of its doctrine and procedure; and that this was due to the 
 immense accumulation of books, the mass of multiplied 
 
442 
 
 Constitutions, and the inextricable confusion in which 
 the whole subject was involved. The emperor therefore ap- 
 pointed at first a coaiinission of eight members, and then 
 one of double the niamber, at whose head was the Prefect 
 Antiochus, undoubtedly the ablest of them all. The work 
 occupied a period of nine years, and when completed was 
 divided into sixteen books and each, as usual, subdivided 
 into Titles under which were placed the appropriate Con- 
 stitutions in chronological order, The first five books 
 are in some respects imperfect and defective but were de- 
 voted to the private law governing the relations of in- 
 dividuals, while the remaining eleven aire entirely complete 
 and cover the public, the military, the corporate, and the 
 ecclesiastical law of the realm. This Code was published 
 in the Eastern empire A.D. 455, taking effect in January 
 of the next year, and was proclaimed in Rome under the young 
 Valentinian with a ceremony msurked by the most sickening 
 eulogies of the Emperor, repeated more than fifty times, 
 and reeking with that nauseous flattery which royalty alone 
 is able to endure. But the western empire was already 
 practically dismembered. Its armies and their commanders 
 were almost wholly barbarians: the Huns, appesuring in savage 
 masses along the Danube, had pressed upon the Alani, and thejr 
 upon the Goths, who in turn threw themselvesB upon the 
 
445 
 
 empire and planted their camps within its boundaries: the 
 Pranks, Burgundians, and Visigoths had seized and divided 
 Gaulj the Vandals had taken Spain and the most of the 
 African provinces, and were growing strong for that final 
 march upon Rome iriiich was to leave it sacked and ruined. 
 What there was of Roman name and glory was concentrated 
 in the East where Theodosius held sway. But in the midst 
 of all this danger and wreck he planned, beyond the Code 
 which bears his name, a more complete and extended compila- 
 tion, the purpose of ?it\ich was to fully suad accurately ajoiiKii 
 systematize and heurmonize the law. He did not live to ac- 
 complish the design but it was left for other hands and 
 another reign. 
 
 About ninety years later Justinian entered upon the 
 work. His origin and history present an enormous and 
 violent contrast to the early Roman ideas of stiatus and 
 rank and honorable descent, which could not fail to be re- 
 flected in the law which he caused to be compiled, and show 
 its marks upon the exclusiveness and pride of the Gens, 
 auid thence upon the patria potestas and the rules of suc- 
 cession. He was born, an humble and obscure peasant, till- 
 ing the ground or watching the flocks of Dacia or Bulgaria, 
 and to all appearance had no other future before him than 
 that humble though peaceful occupatioh. His uncle, Justin, 
 
444 
 
 peasant and obscure liie himself; so ignorant and illiterate 
 that he did not even know the alphabet, became discontented 
 with his days of hopeless toil and hatrd poverty, and with 
 two companions dropped the implements of agriculture and 
 took up the profession of eorms. Gibbon describes them as 
 setting out on foot with a scanty provision of biscuit in 
 their knapsacks, tabling along the highroad to Constanti- 
 nople, hoping in that capital of the Eastern empire to find 
 a brave market for their courage and their swords. They 
 found it, — as firm faith and persistent effort always will. 
 Spite of his ignorance , Justin must have had in him both 
 capacity and ambition, for the Dacian peasant went swiftly 
 up the rungs of the ladder to the topmost round. For his 
 strength and stature he was at first enrolled among the 
 guards of the emperor Leo; and, as a good fighter in the 
 Isaurian and Persian wars, and a leader of such fortune as 
 to have seemed saved from danger by some Divine protector, 
 he became, during fifty years of heard and patient and dar- 
 ing service, first tribune, then Count, then General; later 
 senator and commander of the guards in whose ranks he had 
 fought. At last came the one opportunity which alvrecf$ comes 
 to him who can see it and has the patience and coiirage to 
 wait for its coming. At the death of Anastasius his chief 
 eunuch of the palace coveted the purple, and seeking it by 
 
445 
 
 the cojffinon method of bribery gave to the commander of the 
 guards a large donative with which to purchase the suffrage 
 of the soldiery. Justin used it for himself, and the Dacian 
 peasant became emperor of the East. He was then sixty-nine 
 years old, almost having reached the three score yesirs 
 and ten wlaich the wisdom of modern legislation fixes as 
 the end of judicial capacity. That he was not wanting in 
 desert is evident from Gibbon's sketch of the motives 
 that led to the result. He says that the soldiers knew 
 him to be brave and gentle, the clergy and people believed 
 him to be orthodox, and the provincials yielded a blind and 
 implicit submission to the will of the capital. He had 
 brought his nephew, Justinian, from the same peasant life 
 of Dacia, but caused him to be educated, and placed him in 
 positions of honor and responsibility, choosing him for 
 the succession. Justin died after a reign of nine years 
 and Justinian became emperor of the £ast, beginning that 
 career which in the pages of history vibrates incessantly 
 between disgrace and glory. The sharp contrast for which 
 we are gathering material will gain added emphasis from a 
 brief sketch of his empress, Theodora. Again we follow the 
 account of Gibbon, but not daring to reproduce the bold and 
 unrelenting truth of his vigorous description. Under Anas- 
 tasius, one of the factions of the Circus, known frcan 
 
44^ 
 
 their colors as the Greens, to distinguish them 
 from their rivals, the Blues, entrusted the care of their wild 
 beasts to one Acacius who was thus known as master of the bears. 
 Theodora was his daughter, beautiful, graceful, and of perfect 
 form auid proportion. She went upon the stage, displaying her 
 charms in pantomime, but became at once a notorious wanton whose 
 miscellaneous loves were alike the temptation and the scandal 
 of the city. With one iover she went to the African Pentapolis , 
 but, abandoned by him, worked her way back to the Capital, trail- 
 ing behind her an evil reputation earned in every city of the 
 East. But she regained the Capital, influenced by some dream 
 or vision which roused her ambition, and changed her ways. 
 6he began to live a life of apparent chastity,, in a small house, 
 earning her living by spinning wool. Here by accident, or more 
 probably by design, she met with Justiniam and fascinated and 
 captured him. He poured riches at her feet but could not at 
 once marry her. The law forbade the union of a senator with 
 any woman who was of servile origin or of the theatrical pro- 
 fession, but Justinian procured its repeal and then meurried 
 the wanton whose dissolute life has been but once equalled in 
 Romsua history. Not only that, but when he became emperor he 
 made her an independent colleague, and required the oaths of 
 allegiance to run in the joint names of Justinian and Theodora. 
 See now the marvellous contrast between the earlier and the 
 
447 
 
 later days. The Roman of the Republic was above all things 
 proud of hie Gens, tracing back its lineage through blood 
 never servile or base to seme hero or God, and confining 
 all civic authority and power within the purity of its line; 
 but now, in the East, a Dacian peasant of obscure ancestors, 
 barbarians and boors, sits upon the throne and dares to bring 
 with him as Roman empress a daughter of the master of the 
 bears, stained with the vi«e of a public and scandalous 
 impurity. The depth of the fall is enormous, and the 
 violence of the contrast must lead us to discover the steps 
 by which the Gens lost its dominant influence, and with 
 it fell very much of the paternal power and the narrowness 
 of the Gentile succession. 
 
 We may not follow Justinian through his almost forty 
 years of wars and intrigues. Those are matters for history 
 and concern us not. We go at once to the great work which 
 bears his name, and which summed up finally and forever the 
 Civil law of Rome. The task he assumed, already enormous 
 in the time of Theodosius, had increased in magnitude dur- 
 ing the succeeding century. How great the mass of confused 
 and involved and contradictory material had become we 
 gather from the indications of many independent sources. 
 Suetonius, whose lilies of the Caesars impress us as a 
 somewhat unreliable reservoir of much that was malignant 
 
448 
 
 gossip and envious rumor, may yet be depended upon when he 
 says incidentally in his sketch of Vespasian; "he undertook 
 likewise to restore the three thousand tables of brass which 
 had been destroyed in the fire which consumed the Capitol: 
 searching in all quarters for copies of those curious and 
 ancient records, in which were contained the decrees of 
 the Senate almost from the building of the city, as well 
 as the acts of the people relative to all iaces, treaties 
 and privileges granted to any person." Already the Twelve 
 Tables had grown to three thousand. The compilers of the 
 new Code certify that in preparing the later Digest they 
 abridged two thousand treatises, and reduced three millions 
 of sentences to one hundred and fifty thousand. The emp- 
 eror himself says that the motive of his action was to 
 diminish the length of law-euits and to do away with the 
 confused mass of Constitutions. These incidents serve to 
 show that there was great need of vigorous action to rescue 
 the law from the intolerable disorder which had come from 
 imperial decrees, framed often in emergencies, and for some 
 selfish purpose, and from the liKTBgxx discussions and distinc- 
 tions and doubts of a crowd of Jurists among whom at least 
 forty were deemed worthy of respect. Justinian began by 
 ordering the preparation of a Code. He appointed ten commis- 
 sioners for that purpose, among whom was Tribonian, in all 
 
449 
 
 probability the ablest and most learned lawyer of his time. 
 He directed them to frame the Code out of the Constitutions 
 contained in the three which preceded it and those which 
 had been issued later, and in the process to suppress pre- 
 ambles, repetitions, and contradictory or obsolete clauses, 
 and to cut down, modify, and compress upon occasion several 
 constitutions into a single enactment, but to preserve in 
 each title the chronological order. There was thus a liberal 
 authority to alter and change, that is to legislate, broad 
 enough to have gladdened the heart of a modern reviser. 
 These coimiiseioners finished their work in one year, and on 
 its promulgation the emperor ordered that no other Constitu- 
 tions should be cited, but those in the Code together with 
 the works of the ancient interpreters should suffice to de- 
 cide all suits. But this ancient law of the older jurists 
 was itself confused and contradictory, and full of disputed 
 points which needed settlement. Tribonian suggested that 
 these debatj^able questions should be settled by a new series 
 of Constitutions, and such were published at intervals and 
 were known as the Fifty Decisions. They have not come down 
 to us as a whole, and probably were made unimportant as 
 a separate work by the next step which the emperor took. 
 
 That was^iuch'^ore difficult and important effort, 
 which he himself declared contemplated nothing less than a 
 
450 
 
 complete revision of the whole civil law. In his Const itT>- 
 tion, addressed to Tribonian, he authorizes him to choose 
 as assistants the most skillful professors and the greatest 
 advocates, with whose aid he should select out and correoct 
 all that had been written by the authorized jurists, curing 
 contradictions, eliminating what was superfluous or bad or 
 had fallen into disuse, preferring an opinion for its own 
 inherent merit and not because a majority had adopted it, 
 and recognizing that he had conferred upon his revisers a 
 power of legislation by saying, "The corrections you make, 
 even contrary to the ancient laws, will have legal force." 
 And he added, — what denotes the conviction of his time that 
 the king or emperor is the Divinely appointed source of all 
 law, — these complacent T/ords: "We have determined to draw 
 up a work of the utmost perfection, to be sacred as a 
 temple of Justice, to be in fifty books divided by Titles 
 according to the order observed in our Code or in imitation 
 of the Ferpetiial Edict as you may think best. In these 
 fifty books let all the ancient laws, thrown into confusion 
 during the course of nearly fourteen hundred years, be ex- 
 purgated and surrounded as it were by a rampant beyond 
 which there shall be nothing more." Thus describing the 
 grandeur of his effort, with more of courage than of 
 modesty, the emperor adds a prohibition against comnien- 
 
451 
 
 taries. He might ae well have ordered the lawyers not to 
 breathe. This collection constituted what he denominated 
 the Digest or Pandect©, and was finished in three years. But 
 parallel with it he ordered the construction oi^ still 
 another work. The Code catalogued the Constitutions, the 
 Digest preserved and indexed the juristic opinions, and 
 both introduced something of order and system, but neither 
 were suited for the study and instruction of youth, or 
 brought the law into the method of a scien<ce. With this 
 end in view he ordered the preparation of the Institutes, 
 the purpose of which he declared to be to "afford beginners 
 the opportunity of commencing their primary studies so as 
 to facilitate their subsequent progress to deeper subjects." 
 
 But when both Digest and Institutes were dompleted, 
 and with the Code were announced as containing the whole 
 body of the law, it seems to have sadly dawned upon the 
 imperial vsinity that mistakes might be discovered in this 
 perfection or omissions lead to a failure of justice, and 
 so Justinian, forbidding less holy hands to touch his templf, 
 reserved the privilege of making later corrections, consol- 
 ing himself for the disagreeable possibility by saying that 
 "even Divine works are susceptible of improvement." It 
 proved to be a very necessary reservation, for the sovereign 
 found it essential to issue thereafter new Constitutions 
 
452 
 
 which acquired the name of Novella e , or Novels, and which 
 were in the nature of supplements to the completed work, 
 probably Tribonian was their real author. There had been 
 a second or perfected edition of the Code and the Novels 
 began within one year thereafter, out of about one hundred 
 and fifty, Ortolan asserts that one hundred and eight ap- 
 peaired within the first six years, and twenty in the next 
 six, leaving but few for the remainder of the reign. Tri- 
 bonian died in the yeeir 543, or about nine years after the 
 final promulgation of the Code, and the Novels almost cease 
 thereafter. The master-mind, whose genius and whose toil 
 the emperor appropriated as a robe for his own glory and 
 a survival for his name, had passed away. Justinian doubt- 
 less meant that these Novels should serve as a continuation 
 of his greater work, and round it out to completion, but 
 while they remained in the archives of the Empire and per- 
 haps were transcribed in some book of the laws, it does 
 not appear that the emperor or his successors ever col- 
 lected or published them as a whole, Ijoat^ the copies which 
 have reached us were the work of private hands. So fat as 
 the Novels related to the ecclesiastical law their substance 
 was preserved by John of Antioch, a priest who became, 
 one year before the death of Justinian, patriarch of Con- 
 stantinople, and who undertook a compilation of the Canon 
 
453 
 
 law, and inserted in it the appropriate provisions of the 
 Novels; not however literally or completely but by extracts 
 and paraphrase. A much better and more perfect collection 
 
 is that of Julian, though it also was an abridgment. In 
 the reign of Constantine he was a professor of law in one 
 of those public schools of the Capital which we shall soon 
 endeavor to study and describe, and made, either for the 
 use of his pupils or for general circulation in the west, what 
 Jie designated as an epitome of the Novels. The collection 
 is divided into two books, and contains the substance of 
 one hundred and twenty -five Novels. They were originally 
 issued in Greek, but Julian translated their substance into 
 Latin, and for that reason they became widely known in 
 Italy and even reached Gaul before justiniants larger work 
 had penetrated to that province. There are two other col- 
 lections of the Novels, less reliable in their authorship, 
 but purporting to give the exact text of the novels themselves 
 One of these is in Latin and the other in Greek. The 
 former acquired in some manner the name of the Authenticum 
 and was commonly cited by that title, and, at first ques- 
 tioned by the glossators on account of its unknown and 
 unofficial origin, at last came to be regarded as reliable 
 and authoritative. One of the manuscripts is mentioned 
 by Savigny as existing in Vienna wiich contains one hundred 
 and thirty-three of the Novels. The Greek copy is also of 
 
454 
 
 unknown authorship but contains one hundred and fifty-two 
 Novels. It has been ably and carefiaiy edited, and with 
 all glosses removed is supposed to reproduce the original 
 text. 
 
 Thus putting together the work of Justinian as con- 
 sisting of Code, Digest, Institutes and Novels we have the 
 whole body of the law known from that time on as the 
 Corpus Juris Civil is . Its history would be incouiplete if 
 we failed to inquire how it was studied and preserved, 
 and what became of it when the barbarian flood poured over 
 Rome and all lights went out in the darkness of the Middle 
 Ages. 
 
 We have already said that in the earlier days the 
 jurisconsults were attended by the youth who desired to 
 make the law their profession. They listened to the 
 answers of the Masters, and followed as well as they could 
 their learned discussions, taking notes of sorgument and 
 opinion and of ultimate decision, and having no other 
 means of instruction. In the time of Gaius his Institutes 
 supplied a very obvious waint , and opened the way to a more 
 thorough and systematic study. These were to the Roman 
 youth what the work of Blackstone has long been to the 
 students of England, and gave opportunity for the acquisi- 
 tion of an orderly and theoretical knowledge, no longer 
 
455 
 
 dependent upon the accidents of litigation. Instruction 
 byjf lectures naturally followed which served to explain and 
 expound the legal system, to put doctrines in their true 
 relation to eacdi other, and enable the law to be mastered 
 as a whole and after some scientific fashion. The practi- 
 cal and theordtical were thus blended and brought to each 
 other's assistance. This mode of instruction was at first 
 the work of private teachers who depended upon the free 
 gifts of their pupils for their reward, since, according to 
 Ulpian, they were forbidden access to the Praetor for the 
 recovery of compensation, upon the groimd that their oc- 
 cupation was too dignified and honorable to be sullied by the 
 fixing of a price for the hire of illustrious brains. The 
 English barrister inherited the same notion and came under * 
 the same absurd restriction. UltiKately public schools were 
 established both in the Eastern and Westenn Jiempires, in 
 which there were Professors of Law, and over which the 
 emperors exercised an etrbitrary supervision. We gather 
 the description of these schools from a Constitution of 
 Justinian Mch Ortolan reproduces at large. It was quite 
 natxoral that the emperor, who had completed a revision of 
 the civil law and promulgated it as the rule of action for 
 the people, should turn his attention to the manner in 
 which it should be studied, ajad provide for the edussation 
 
456 
 
 of a professional clasB able to conduct intelligently the 
 litigation which it contemplated, and for which it was in- 
 tended to furnish rules, and so he made a special decree 
 having that purpose in view. It was addressed to eight 
 Professors by name, seven of whom are decorated with the 
 epithet illustres, and the eighth with the phrase vir 
 disertessimus . Seven were illustrious and one most learned. 
 The way in which these professors were smothered under flat- 
 tering titles and extravagant superlatives must have been 
 perilous to their modesty, — if a lawyer may be supposed 
 ever to have any. To these eight professors the emperor 
 addressed his commands which are worthy of our study, not 
 on his magesty's account, but because beyond question they 
 formulated the ideas of Tribonian, whose master described 
 him as a man of transcendent genius. The Constitution 
 begins with a sharp denunciation of the existing methods 
 of legal education. He charges that out of two thousand 
 books the professors had con-\fined themselves to six. That 
 was hardly a fault. It may have been wholly a virtue. 
 But he adds a description of the four years course of study. 
 There was no attempt to equip a young lawyer in one year, 
 and send him out from the Capital to do such mischief as 
 came in his way. The first year's course included the 
 
457 
 
 Institutes of Gaius and four special books: the first of 
 these on the ancient law of marriage, the second upon 
 tutelage, and the third and fourth on wills and legacies. 
 The emperor says no order was followed but the useful was 
 mixed with the useless and the latter was in excess. The 
 second year's course he describes as "preposterous", saying 
 that seven books were discarded as unaccessible or super- 
 fluous. The third year was devoted to the responses of the 
 glorious Papinian, but out of his nineteen books eight 
 only were used, and these but partially. The fourth year 
 covered the responses of Paul but in a very disconnected 
 manner and without the observance of any scientific order. 
 Summing up this four years work he concludes, that out of 
 three million lines scarcely six thousand were introduced 
 to the notice of the student. That may have been a very 
 judicious mercy to the young man. Justinian then contrasts 
 the "miserable deficiency" of the system with that opening 
 before the Roman youth as a result of the new revision. 
 He begins by changing one of the class names That of the 
 first yesir had been Dupondii or two cent men, — a contemp- 
 tuous expression probably imposed by the upper classes. 
 As they were to begin their studies with the emperor's 
 Institutes he named them Justinianani novi , which we may 
 translate freely as Justinian freshmen. Durihg the second 
 
458 
 
 year he preserves the name of fidictales , in allusion to the 
 perpetual Edict which the Digest supplanted. He pre- 
 Bcriloes for this year seven books de Judiciis and eight 
 de rebus and special studies of tutelage, wills, legacies, 
 and agency. In the third year came pledges, interest, the 
 edict of the Ediles, evictions and some forms of action, 
 hut especially a study of the responses of "the most in- 
 genious Papinian." Prom him the men of the third year 
 were called Papinianists. During the fourth y&ax the nan^e 
 was Licentiates, and, instead of Paul, they were to study 
 
 the Digest. During a fifth year, under the name of Pro- 
 j^ytae , ^j^ey were to devote themselves to the Constitutions 
 
 contained in the Code: and then he adds with a hurst of 
 jubilant prophesy; "they will lack nothing of the science of 
 law. They may thus succeed in becoming great orators, 
 satellites of justice, and powerful advocates and judges, — 
 happy in all places and ages." Then he turns to the private 
 teachers and takes them sturdily in hand.. He forbids them 
 any further instruction, denouncing them as ignorant and im- 
 parting spurious knowledge, and follows that with some warn- 
 ing words to the students themselves. We find at this 
 point, — ^what we did not anticipate,— the very early and 
 anoiient origin of "hazing" and that fagging system which 
 long disgraced the English schools. The Constitution says: 
 
459 
 
 "No one following the legal course shall dare either in 
 this sublime city or at Berytus to permit any unworthy 
 tricks or other practices the effect of which might be in- 
 jurious, nor to commit any other malpractices in respect of 
 their professors or their fellow-pupils, particularly in 
 connection with the junior pupils. How is it that such 
 disgraceful conduct can be called a game. For our part we 
 will not tolerate it." The indignation of the imperieil 
 constitution was not aroused by some unusual or sporadic 
 outbreak, for a hundred years earlier Theodosius had uttered 
 a similar warning, and took occasiorko forbid resort to 
 places of amusement or taking part in boisterous banquets, 
 and added the threat t lat "those who do not conduct them- 
 selv^ with the propriety that a liberal profession demands 
 shall be publicly scourged, banished the town, and sent 
 back to their homes." We, nowadays, simply omit the 
 scourging. There appear to have been two important schools 
 for the study of the Civil law in the Eastern empire; one at 
 Constantinople and one at what Justinian calls the "lovely 
 city of Berytus," and "a nursery of the laws." Doubtless 
 there was one also at Rome, but suffering as everything suf- 
 fered from the suffocating rush of the barbarians, and the 
 desperate but, for the moment, successful defense of the 
 western empire by Belisarius and Narses. The city was torn 
 
460 
 
 out of the Gothic hands, and its keys carried to Constanti- 
 nople and delivered to the emperor in token of the re -con- 
 quest. The Vandals were overthrown in Africsa, and that 
 province restored to the imperial possession. Sicily was re- 
 gained, and then substantially the whole of Italy. But the 
 victory was only temporary. The refluent waves swept 
 toack until Genseric appesu:ed under the walls of Rome, and 
 for forty days gave it up to the sack and plunder of his 
 Vandal followers. Thereafter, only the ebb and flow of 
 robbery and murder and barbarian struggles for power and 
 booty, dxiring which all law more or less disappeared, and the 
 Roman Code drifted on into a darkness which threatened to 
 swallow it utterly. But it was not wholly lost. We owe 
 to the wonderful and patient researches of Savigny, through 
 the capitularies of the barbaric kings, through the blind 
 formulae of deeds and charters, through the bones and dust 
 of buried institutions, ti rough the scarce and rare documents 
 dotting a period given over to war and conquest, the demona 
 stration that the Roman law survived thromgh the Middle 
 Ages, that its influence though no longer dominai^!^ was yet 
 operative and observable, that it inwive itself into the 
 Codes of the invaders, suad silently kept a- respect and 
 authority which carried it safely to the revival of learning 
 and the beginning of a new and marvellous carerr. Among 
 the Visigoths, settled in Gaul, it was to some extent pre- 
 
461 
 
 served and re-produced in what is known as the Breviary of 
 Alaric: among the Salian Franks we have already shown how 
 it was allowed to govern the conquered provincials, living 
 submissively but unmolested among the proud and warlike 
 invaders: among the Burgundians it was preserved under the 
 neune of the Papian law: and among the Ostrogoths, fighting 
 for their foothold in Italy, appeared more or less in the 
 edict of Theodoric. Of all these the Code of the Visigoths 
 under Alstric is the most complete and interesting. It 
 
 was promulgated at JElre in Gascony under written orders 
 from the king by Gojaric, count of the palace, in the 
 twenty-second year of his master's reign, or about the be- 
 ginning of the sixth century. It was therefore seventy 
 years after the Theodosian Code and about twenty years be- 
 fore ths revision of Justinian that it took its place in the 
 law of Gaul. It was composed largely of the Theodosian Code, 
 to which was added an abridgement of the Institutes of 
 Gaius, extracts from Paul and from the Codes of Gregory 
 and Hemogenes, and a few lines from Papinian.' Obviously 
 it carried into the Gallic territory the substance of the 
 Civil Law. From that Breviary the Burgundians fracied a Code 
 for the benefit and government of the Roman provincials re- 
 maining as subijecte in their midst, and which was allowed to 
 operate by the side of their own native and peculiar Code 
 
462 
 
 known as the Gondobada. The edict of Theodoric on the con'- 
 trary blended the Roman and the Gothic law, with the inevit- 
 able result that to some extent they modified each other. 
 
 But while the Roman Code found its way into the pro- 
 vinces conquered by the northern invaders, and was corroded 
 and corrupted by contact with their coarser and ruder sys- 
 tems, an influence was at work in the East which lessened its 
 authority, while at the sarae time it gave it a refuge 
 destined to protect and preserve it through centuries of 
 ignorance and war. The eastern empire maintained a dis- 
 turbed and troubled existence for about nine hundred years 
 after Justinian's death, but the Civil law, nominally in 
 force and never formally repealed or abrogated, died out 
 much earlier. One cause of its extinction was the rapid 
 and enormous growth of the ecclesiastical power and govern- 
 ment, and so of the canon law. The emperor became the head 
 of the churah, and in that cSaaracter was so drawn into its 
 multipled controller siee over creeds and dogmas, over 
 sectaries and schismatics, as to require most of his con- 
 stitutions to deal rather with matters of religion than with 
 those pertaining to the civil polity. In this manner the 
 secular law becairie somewhat absorbed in the ecclesiastical, 
 until in the end it was preserved only in the works of the 
 Greek canonists, and found its ultimate refuge in the 
 learning of the priests and the persistence of the church. 
 
463 
 
 The change came about gradually. It began with an evil 
 habit of abridgements or epitomes of Justinian's work, 
 framed in Greek and disceixding all the Latin forme. But 
 the line of these jurists soon ended: a period of inaction, 
 of dull legal lethargy ensued, during which the school at 
 CEbnstantinople was closed, and there begaua soijjiewhat later 
 a new series of constitutions commentaries and Institutes 
 which ended with the Basilicae fraraed under Basil the Mace- 
 donian. But in Italy the pontifical court and the Clergy 
 clung to the Roman law holding it second only to their own 
 canonical system. That had developed in the east by an in- 
 evitable evolution from the necessities and chiiracteristics 
 of the new religion. The followers of Christ were driven 
 out of the Pagan society around them, and compacted and con- 
 centrated into a society of their own. The state religion 
 with its multitude of Gods, its ancestral worship, its 
 oracles and libations and ceremonies, had inwove itself into 
 the web of the whole Grecian life. The Christian could 
 not mingle in politics or hold official position without 
 submission to the Pagan rites and sacrifices. He could 
 attend no public games without bowing to the Deities in 
 whose honor they were celebrated. He could cross no thres- 
 hold without passing under the sacred lacitel. He could 
 hold no conversation without being shocked by the prevalent 
 
464 
 
 social belief. And so the Christians had to form and 
 maintain their own separate organization. They were in 
 the world but not'of it. They became a little state inside 
 of the larger one, and, yielding such external obedience 
 as necessity compelled and Christ himself advised, they were 
 forced to withdraw from the general society and to construct 
 one of their own. Some government, seme rule of social 
 action, some representative man or body to speak for and 
 act for and watch over the new society, became a pressing 
 need; and so the Deacon, the Presbyter, the Bishop, the 
 Metropolitan, the Pope, were successively evolved as the 
 area and responsibility of canonical government widened, 
 and these governed the Churoiies of the world, united by 
 their faith however widely scattered. This ecclesiastical 
 government had mucjn to do. Its charities which were great, 
 its expenses which were heavy, required a careful and 
 prudent administration. Its discipline, — essential to its 
 safety and purity, — ^required that the heretic should be cut 
 off from its communion, the backslider weirned, the repentant 
 watched over, and the daily life purged and jbisi piirified 
 of its sins. The aggressive character of the faith demanded 
 leadership of the army fighting the battle of sould. And 
 so it came about that an ecclesiastical law grew fast whose 
 canons were shaped by necessity but filled with the temper 
 
465 
 
 of the Goapals. This canon law gained a marked pre-Sininsnce , 
 and tended to smother and supersede the Civil Code, but in 
 exercising its jurisdiction was largely governed by the 
 precepts and doctrines of the Corpus Juris » preserved iyx 
 ±iis and studied in the silence of cathedral cloisters. 
 There it remained in sleep and lethargy until that time 
 arrived which we shall ere long reach when there C8u.ie to it 
 a brilliant and marvellous awaking. 
 
466 
 
 IT- 
 TEE ROMAN EVOLUTION. 
 
 Now that we know the general history of the Civil 
 Law it will be easier to trace the growth of its doctrines, 
 and to study both their development and decay. In so doing, 
 we shall first concentrate attention upon the changes in 
 procedure, and next upon a few of the important subjects 
 about which the judicial tribunals were busy; and seek to 
 go far enough to CDomplete such a general outline of the 
 Roman system as ought to be within the knowledge of every 
 intelligent lawyer. 
 
 We have already disaribed how the Praetor separated 
 the law from the fact, and, determining the first igipera- 
 tively, submitted the last to one or more referees. These 
 were always private citizens, chosen solely for the case or 
 the occasion, and selected with the consent of the liti- 
 gants, or, if they disagreed, then chosen by lot. A^t first 
 they were always Senators, from the three hundred of whom 
 the choice was made. They formed no part of the judicial 
 establishment, but were called in from the outside to hear 
 and pass upon the facts. Of course the Flebians resented 
 their own exclusion and fought persistently and bitterly 
 for the privilege of being inscribed in the Praetor's 
 
467 
 
 album. They prevailed at last, and an annual list or panel 
 was made up from whicli the Judex was appointed. In this 
 manner the Plebs, already represented in the Consulifate, 
 obtained a firm hold upon the Judiciary. It seems, however, 
 that where three or five referj^ees were chosen, who were 
 called recuperatores , no list or panel was used, but they 
 were taken from the citizens at large and ofteDjti from the 
 by-standers who happened to be about the court. These 
 men were practically ;iurors and constituted an approach 
 to a jury, and, probaMy, were usually appointed in cases 
 where foreigners were parties. The system took something 
 of an extension in its application to the criminal law. 
 The early fixed court or guaestio perpetua was product of 
 the Calpurnian law under an enactment made one hundred and 
 fifty years before Christ. Later, under the iKxSSo^p 
 lex Pagapeia , it was decreed that eighty judices should be 
 chosen by lot, of whom the parties might challenge peremp- 
 torily and so reject thirty, leaving fifty to sit at the 
 trial. That was the number in some famous cases the details 
 of which history has preserved. They recall to our memories 
 the dikasteries of Athens in whose ravenous maw life and 
 reputation were engulfed, on the civil side of the laiv at 
 Rome appears another tribunal to wlich the magistrate re- 
 ferred certain classes of cases instead of sending them to 
 
L£3 
 
 a judex . This was the court of the Oentunviri to which 
 was referred state questions, those relating to Quritarian 
 ownership, and to testamentary or intestate succession. 
 In this tribunal also was manifest the popular sentiment, 
 for its members were elected by the people and taken three 
 from each tribe. The whole system of trial, both civil 
 and criminal, was thus essentially democratic. It kept 
 judgment out of the control of the magistrate and freed it 
 from the grip of the administration. It is not surprising, 
 therefore, that the first Caesar looked at it askance. 
 While he found it prudent to veil his absolutism with a 
 seeming regard for existing institution, and suffered them 
 to remain somewhat undisturbed, yet he and his successors 
 were not wanting in that despotic instinct which regards 
 any trial by jury asiessentially a republican institution 
 and an obstacle to impenal power; and so, by slow degrees 
 and advancing steps, the judicial system was modified and 
 changed, and put at the mercy and made to reflect the will 
 of the autocrats who wore the purple and acted the tyrant. 
 The agency most relied upon to effect the change was the 
 extraor dinar ia judicia . There had alwasy been, under 
 the Praetors formulary system, some cases which he decided 
 himself instead of sneding them to the triers. One can 
 imagine that they were cases requiring a special relief. 
 
469 
 
 or those in which there wae no question of facet but 
 only one of law. Precisely what they were is not clear, 
 but we know that they existed. This mode of trial was 
 different from the usual routine and so was denominated 
 the extraordinary procedure. It became the weapon which 
 despotism used against the popular mode of trial. The 
 judicial satellites of the emperore increased its use, 
 ^applied it more and more and to a widening range of cases, 
 until the ordinary remedy fell into disuse, and it became 
 safe to abolish it. Under Constantine all traces of the 
 popular system disappeared, and by an edict of that emperor 
 the trial and deeision of every cause, civil and criminal, 
 was confided to the magistrate alone, who owftd his place 
 and power to the will of the Master, and might be depended 
 on not to resist it. In this form the Procedure was fixed 
 in the work of Justinia.n, and passed into the knowledge 
 and imitation of the canonists. 
 
 But the ;judicial officers of the Empire did not 
 hesitate, in formulating their judgments, to avail them- 
 selves of one great advantage which the Praetorian law had 
 evolved for its better and more effective operation. There 
 was always in it a trouble som.e defect growing out of the 
 fact that its only possible judgment was one for money. 
 Every wrong ended in that form of compensation and was 
 
470 
 
 redressed by no other. But the cases were numerous in 
 which money did not right the wrong, and its award fell 
 dismally short of justice to the party injured. Sohra de- 
 scribed ten such cases. One or two may be recalled, the 
 better to appreciate the character of the difficulty, and 
 we choose for one of them a case in which the sacie defect 
 is perpetuated in our own actions at law. The owner of a 
 vase which has some special value for him because it has 
 been handed down in the family for generations, or of an 
 ancestral portrait of which there is no copy, is dispoS" 
 sessed by a trespasser. The Roman plaintiff sues, estab- 
 lishes fully his ownership and the wrongful taking. He 
 gets judgment which gives him not the thing he has lost, 
 but its estimated value in a sum of money: and when the 
 trespasser pays that sum of money he has become by the 
 Praetorian law owner of the vase and portrait, and the 
 true owner has been deprived of his property, with no way 
 provided by.vAiich he can reclaim it. Just that result 
 follows the action of replevin in our procedure. The same 
 thing happened ing!( many cases of bailment. The deppsitor 
 could not get back his deposit, or the pledgor the article 
 he pledged, but only a sum of money instead which might fall 
 very far short of the value to the owner. The Praetor studied 
 this defect for a while and then worked out asolution very 
 
471 
 
 interesting for what came of it in the far future. By a 
 modification of the condemnatio he originated what was 
 calle.d the actio^ sirbitraria , which we laay properly call the 
 Eigitable action, for it underlies our whole modern system 
 of Equitable procedure. He acconiplished this by preceding 
 the condemnation with what was called an arbitrium , being in 
 substance an order in the alternative for specific perforni- 
 ance. The Praetor's formula began to run thus: unless the 
 thing wrongfully taken is restored, condemn. Thus the 
 money judgment was made to wait the outcome of the order 
 for restoration. If that was not obeyed the plaintiff made 
 formal oath before the magistrate of the value of the -*fe&- 
 thing to be restored, and of course he soared far beyond the 
 market value; and the consequent condemnatio or money 
 judgment grew to be so large that practically the restora- 
 tion was compelled as being decidedly the lesser evil. 
 This procedure was applied even in the noxal action brought 
 against the master for a wrong done by his slave. The 
 slave insults a citizen. He deserves to be whipped, bt^* 
 the master/sued may prefer to pay the very small money damage 
 likely to be awarded. Now comes the arbitrium j — ^unless the 
 master delivers up the slave to the scourge, condemn. If 
 the master refuses he is met with a judgment so heavy that 
 the insolent slave rarely escapes his whipping. And thus 
 we.' find the origin and beginning of ihat Equitable procedure 
 
472 
 
 applicable to a multitude of cases v/hich conBiste in punish- 
 ing the contumacious defendant who ventures to disobey the 
 judicial order. We have come upon v/hat our law calls con- 
 tempt of ccart which has behind it the penalty of fine or 
 imprisonment, and enforces the Specific Performance, the 
 Mandamus and Injunction. 
 
 The equitable notions mgcifest in this modified form 
 of the final judgment were not confined wholly to that, but 
 prevailed outside of it to some extent , and in the natiire 
 of the contracts involved in the actions themselves. It 
 led to their division into two classes which were those 
 stricti juris , or governed by the strict and rigid letter 
 of the law, and those bonae fidei , or dependent on the rules 
 of good faith and common honesty among men. For convenience 
 we may call one the contract rigid and the other the contract 
 liberal. In the contract rigid nothing could be considered 
 or bear upon the result except the precise dictates of the 
 appropriate law or settled form: so that, if one made a 
 contract by stipulation in the exact and prescribed way, 
 the Law saw nothing but the literal promise and would listen 
 to no explanation, and the magistrate was bound to decide 
 accordingly: while in the contract liberal he had a rage 
 of discretion, and could take into account and act upon 
 modifying and mitigating facts, and apply as a solution 
 
47 
 
 2 
 
 the rules of honest dealing erniong honest uen. Thus in 
 the contract of Sale or Exchange, — aund we suspect in all the 
 Formless contracts, — ^he could consider the facts of the 
 transaction, and the duties imposed by such facts, and exer- 
 cise his own sound discretion in reaching a decision. He 
 was not bound to shut his eyes to the equities of the situ- 
 ation . 
 
 A further illustration is found in the law of Set-off, 
 The plaintiff seeks to recover his whole debt ignoring the 
 fact that he himself is debtor to his adversary for a part 
 of the sum and ought to recover only his excess. The situa- 
 tion was bad in the early jurisdiction. The action might 
 be on a contract rigid and the counter-debt was no defense 
 euad unavailing to lessen the judgment. But here again 
 came the interference of the Praetor. He allowed in the 
 formula t hat omnipotent and widejaeweeping exceptio doli ., 
 under which the defendant could prove his counter-debt, 
 with the unjust effect of beating the plaintiff entirely 
 and turning him out of court. The purpose was to force the 
 plaintiff when he sued to apply the set -off himself and 
 claim only his balance. But ]^that soon developed its own 
 difficulties and began to work harshly, and a rescript of 
 the fimperor catne to the aid of the puzd ed fraetor and 
 ordained that proof of the smaller debt should not defeat 
 
474 
 
 the plaintiff but operate only to lessen his recovery. 
 
 And so the doctrine of Set-off was established which of 
 
 course became later an original invention of the Consmon 
 
 our 
 LawJ But the thing about it which draws bh± attention 
 
 is this; that the fundamental idea of equity which character^ 
 
 ized the contract liberal was thus extended to the contract 
 
 rigid, for the Set-off went not upon the ground of a counter 
 
 demand enforced in the one action by reversing the parties, 
 
 ■but upon the ground that it was unjust and inequitable for 
 
 the plaintiff to recover more than the real balance 
 
 honestly his due. And so we reach an interesting fact 
 
 bearing upon our ultimate purpose, for we have caught the 
 
 Praetor in the very act of introducing into the law the 
 
 morality of the Time; that is the way of an honest man 
 
 dealing with honest men, and even straining or warping 
 
 the existing law to admit the desirable guest. 
 
 One of the Praetorian remedies which was 
 
 drowned and lost in the Extraordinaria Judicia of the Empire 
 
 was the Interdict. Justinian says of it in the Institutes 
 
 this: "It would be 6uperfluoi;.s at this day to speak of the 
 
 order and ancient effect of Interdicts, for when Judgments 
 
 are €i*traordinary , — and at present all judgments are so,— 
 
 an interdict is rendered unneasessary; and judgments are 
 
 therefore now delivered without interdicts, in the same 
 
475 
 
 manner as if a beneficial action was given in consequence 
 of an interdict." Since it is no part of our purpose to 
 teach Roman law exhaustively we should pass this Procedure 
 of the Praetor without notice but for the fact that we may 
 expect to see it again in the English law, masked in English 
 forme, so as to conceal its origin and boast of an insular 
 birth. The Interdict was a decree or command of the Praetor, 
 founded on his imperium or absolute authority, directed to 
 two disputants, and used mainly to protect an actual pos- 
 sessiodby prohibiting violent assault upon it, or restoring 
 it when that assault had been successful. It did not settle 
 the dominium or right to possess, but concerned itself only 
 with the actual possession, and its preservation against out- 
 side force disturbing the public peace, or against a lawless 
 interference. Probably at first the Praetor examined each 
 case and aimed his Interdict directly at the disturber, but 
 very soon it beuiame a broad direction to the parties, which 
 only gathered efficacy through other proceedings. The de- 
 fendant had a right to be heard and endeavor to retain the 
 possession he had talcenj and so, to get the quarrel into 
 court, a dramatic fiction was arraged through the form of 
 ^ Sponsio , which was a sort of feigned issue founded on 
 the old artifice of a wager, which we saw in the Sac r amen turn . 
 Each party wagered that he had or had not violated the terms 
 of the Interdict by the formal and pretended eviction ar- 
 ranged as a basis for the litigation, and got into court 
 
476 
 
 on the issue of the wager which settled also the right 
 of actual possession. If the intruder refused to play his 
 part in this curious outside drama the Praetor ousted him 
 forthwith and put his adversary in possession. The Inter- 
 dict operating on immovable s was called Uti possidetis, 
 and that on movables the Utrubi. 
 
 The interdict not only protected possession but 
 also status and personal liberty. It could compel the 
 production before the Praetor of one unlawfully restrained 
 and thereupon determine his condition and maintain him in 
 it. The Interdict commanded "the freeman whom you unlaw- 
 fully detain I command you to produce," and was thence 
 called de homine libero exhilendo , and is described by 
 Professor Poste as "a kind of writ of Habeas Corpus." In- 
 deed it looks very much like that famous gxa gueird of Eng- 
 lish liberty. It may not be permissible to say that the 
 latter was borrowed bodily from the Roman Interdict, but 
 we may at least suggest how very wonderful it would be 
 if it were true, that the jurists of Britain, out of their 
 own independent invention, framed a process that was already 
 more than a thousand years old. 
 
 Parallel with these changes ran a number of modifica- 
 tions in the practice and forms of the court. At first, 
 as v;e have earlier said, the actual presence of both parties 
 
477 
 
 before the magistrate was essential to set the suit in 
 motion; such presence was accomplished by the personal 
 action of the complainant who dragged his adverseory to the 
 bar of the court; and if the latter shut himself up in hie 
 house, which in a slvil action the law could not invade, 
 he was brought to terms by the howling of the plaintiff 
 at his door. This was a rude and awkward, and not always 
 an effective way of gaining jurisdiction of the person, 
 and quite naturally grew into the notice to appear, which 
 was sometimes verbal and sometimes written, and J'girisdic- 
 tion founded upon that notice, so that in the absence of the 
 defendant a judgment might go by default as if jipon a con~ 
 fession. The necessary service was no longer entrusted to 
 the party and founded on his statement, but was made by an 
 officer of the court appointed for that purpose , and known 
 as an apparitor , whose action could be relied on as dis- 
 interested, and whose return of service could be safely 
 accepted as tnue. On the other hand the actual personal 
 presence of the defendant was no longer an essential to 
 the jurisdiction, and he was allowed to appear and defend 
 by a Praetor who was practically hisjft attorney, and to 
 have an advocate to present his case and fight his battle. 
 
 we pass now from Procedure to Doctrine, frou ad- 
 jective to substantive law, and turn aur attention first 
 
478 
 
 to the changes developed in personal relations. 
 
 We have learned that the Roman family was the unit 
 of organization, and that it was rather a legal than a nat- 
 ural group. We have seen the dominance of the paternal 
 power, the pride and exclusiveness of the Gens, and the 
 succession of the Agnates through the male line along. 
 If any blow was to be struck at that system, which practic- 
 ally made each family a little State by itself ruled by an 
 absolute master, the most vulnerable point for the effective 
 assault was the institution of marriage, which determined 
 the condition and the rights of thw^wife. Make marriage 
 free, lift the woman to the level of the man, and the 
 whole artificial structure will crumble to its fall. Very 
 plain was that fact to the Patricians, and so they forbade 
 marriage with the inferior class, and by a form to which 
 the manu might not attack. Equally plain was that to the 
 Plebians, and so they accomplished a repeal of the pro- 
 hibition: and very soon rank mated itself with Plebeian 
 wealth or love, and the Gens was doomed through the destruc- 
 tion of its exclusiveness and pride of ancestry. With it 
 fell the religious marriage peculiar to the Patricians, 
 which had. become almost obsolete in the early days of the 
 empire. The simpler marriage grew to the usual and preferred 
 
479 
 
 form. There was little of ceremony about it. Often it 
 was preceded by a contract of espousals which rested wholly 
 on mutual consent, but borrowed from the law of Sale the 
 giving of earnest to bind the bargain. This commonly was 
 an iron ring given to the maiden to be worn on the fourth 
 finger of the hand, because the Egyptians had discovered 
 that there was a direct communication by means of a slender 
 nerve from that finger to the heart. That is the well known 
 origin of the engagement ring, but what is not so well 
 known is that it was earnest to bind the bargain. It did 
 bind the bargain, in the earlier days, for Professor Moyle 
 reminds us and Duruy confirms him, that at least a stipu- 
 lated penalty for a breach of the agreement couaid be recovered 
 in a civil action: until those astonishing Romans reached 
 the conclusion that such remedy was against good morals and 
 destroyed it utterly. The marriage had become simple. 
 The bride, who in earlier times was stolen or bought, now 
 seems to buy her husband, for she comes into the Forijm 
 before the Praetor with three pieces of money in her hand; 
 the first she gives to the librdpens , the second she places 
 in a model of a house, and the third in her shoe, ^rith 
 the first she buys her husband, with the second the right 
 of entry into her new home, with the third the Penates and 
 the right to share in the hearth worship. But in the time 
 
480 
 
 of Justinian the doctrine of in manu had disappeared. Tlie 
 wife had won her personal freedom, with that disappearance 
 came the custom of a dowry given with the bride as her 
 contribution to the support of the new household. The 
 Roman husband had long had complete ownership of his wife's 
 property. He did not take kindly to the new system which 
 gave hiui none of it: for he had also lost the right to 
 the military and official earnings of his son. Nothing 
 however lessened the cost of the household or lightened 
 its burden upon his earnings. The young man, not married, 
 looked over the situation, did not like it, and chose to 
 remain single. As a corrective, here and there, a father 
 or a mother began to give dowries with the dau'^htere, and 
 enable them to share in the burdens of their new home: and 
 that which began in custom the law first regulated and then 
 commanded. At the outset this dotal estate belonged wholly 
 and absolutely to the husband, but later manyjrestraints 
 were put upon him. His right to it was made merely usu- 
 fructuary, and he was required to account for and return the 
 principal upon the dissolution of the marriage. So far 
 as the dowry consisted of immovables it v/as decreed to be 
 inalienable except with the consent of the wife, but Just- 
 inian modified that rule so as to include the value of mov- 
 ables and to forbid the alienation even with the wife's con- 
 
481 
 
 sent: "lest", — as he says, —"the weakness of the female 
 sex should be abused to the detriment of thair fort-ones." 
 And soon a correspSnding duty was put upon the husband, 
 either by custora or by some law which has not come down to 
 us. It w^s the donatio ante nuptil s, or ante -nuptial 
 settleaaent of the husband, and became the property of the 
 wife though controlled and managed by him. The first we 
 know of it is in a Constitution of Valentinian which refers 
 to it as an existing duty, and the emperor Justin reco£.- 
 niz^d it Itey decreeing that it might be validly increased 
 even after the marriage. Justinian further provided that 
 it might be wholly given after that event. There was thus 
 established that conmiunity of property which occupies so 
 important a place in the French law of the present time, 
 and which made the mai'riage resting on consent assiane also 
 the character of a business partnership to which eacri party 
 contributes a share of the capital. With these changes 
 finally fell the marital despotism of the earlier days 
 and all the glory and authority of the Gens. The Dacian 
 peasant who occupied the throne took some pleasure in 
 breaking down the exclusive pride of ancestral houses. 
 The women of Rome had not only emancipated themselves 
 from marital tyranny but also succeeded in destroying the 
 perpetual tutelage of the archaic law. Still another 
 
482 
 
 change was impending. The Roman entered upon a novel ex- 
 periment, which ended in an imperial robbery. The effort 
 lisxixxss 
 
 to encoTorage matrimony by the temptation of a dowry and the 
 
 glitter of a dotal estate seems not to have succeeded. 
 Since the young men could not be bribed it was resolved 
 that they should be punished. The y/eapon selected for 
 that purpose was the last will and testament. That instru- 
 ment had rid itself of the old formalities to some extent, 
 and was simply executed in the presence of witnesses, but 
 there had come into it the pov/er not only to institute an 
 heir but also to give lega.cies, and we have already said 
 how universal testamentary 'disposition became. It was at 
 this point that the nev; law struck. In the interest of 
 marriage and to encourage the birth of legitimate children 
 the Lex JuJ.ia and the Lex Fapia were enacted within ten 
 years after the coming of Christ. There seemed to be some 
 necessity for a peculiar and exceptional legislation growing 
 out of the evils resulting from the extremely lax law of 
 divorce . The mgurriage founded upon mutual consent could 
 be dissolved in the same way. No law restrained the con- 
 sequences of a disagreeiient , or the rash temper of a quar- 
 rel, or even the siidden bitterness of a conjugal spat. 
 The angry pair simply gave each other notice to quit. In- 
 deed, the action of one alone L^ight break the bond. The 
 husband might put away the wife by word or a tablet and 
 
4S3 
 
 install another in her place, but this, which was known 
 
 as the repudiu m, had some penalties attached to it and 
 
 Loose 
 carried a small reparation for the idignity. Sxbue as the 
 
 rules were, it is yet said to have been the astonishing 
 fact that for five hundred years there had never been a 
 divorce in Rome. Later days reversed this remarkable re- 
 cord. Divorces became frequent, the rule rather than the 
 exception. The women are said to have reckoned the years, 
 not by the Consuls, but by the number of th£*r husbands. 
 Celibacy became the fasten and the race of citizens was 
 disappearing. It was then that Augustus came to the res- 
 cue. Thfe laws we have mentioned divided the marriageable 
 citizens into two classes known as Caelibe s and Orbi . 
 The first were those who were unmarried and included not 
 only bachelors but widowers. If the latter had done their 
 duty once they were still in fault not to have done it 
 again. The second class were those who were childless. 
 Then the new laws provided that the celibate should talte 
 no provision intended for him under any lost will and testa- 
 ment, and the Orbus should receive only one half. The for^ 
 feited legacy or its half v;ent to those of the kindred in 
 a designated order who were married or had children. The 
 Romans, with thdir happy faculty of description, called 
 the forfeited gifts " Caduca," . meaning something which has 
 
484 
 
 failed or had lapsed. If it happened that no relative was 
 so situated as to be entitled to the Caduca it went into 
 the public treasury; and that furnished the emperor Cara- 
 calla with his opportunity. Gibbon has sketched him with 
 a few pages of blistering words, which recall his infancy 
 from his murder of his brother and the slaughter of that 
 brothens friends to his own despicable end. Caraca.lla 
 diverted the Caduca from the prescribed relatives into 
 the waste and profligacy of his own treasury. The experi- 
 ment of course did not last long and is not likely ever to 
 be repeated. 
 
 With the enfranchisement of the wife, the disintegra- 
 tion of the Gens, and the destruation by slow degrees of the 
 paternal power, great changes took place in the status and 
 rights of the different classes in the state. There were 
 many such classes but four were prominent and atxK clearly 
 marked. There were the Civis or full and complete citizen: 
 the Libertus who by a lawful process had passed from the 
 condition of a slave to that of a Freedman: the Latini 
 
 iani, so called from the lex Junia which first framed 
 
 Siifiz£ial££ the class and from its resemblance to the Latin 
 colonists in the rural regions about the City, who froi.-i seme 
 defect in their manumission were only partially set free: 
 and the slavfis who as the result of war and victory had 
 
485 
 
 gfeatly increased in number. The Oivis possessed three 
 important and valuable rights which distinguished him from 
 the general mass. He had the Civitas which carried with it 
 the right to vote, and so participate in the government of 
 the State, He had the Connubium or right to marry in the 
 Patrician form and so subject the children to his potestas : 
 and he had the Oommerciu m or right to deal and contract 
 under the shield and protection of the Civil Law. The changes 
 in his position resulted mainly from a gradual lifting of 
 the other classes to his own level by a restriction of 
 his rights over them, and a diminution of his exceptional 
 authority and control. His original relation to the Freed- 
 men grew from the fact of his manumission. In exchange for 
 the liberty which he bestowed the newly made Libertus 
 owed gratitude and duties to the master now]?i§^ bec<3iie Patron, 
 and the existence of those duties was coainonly preserved 
 by an oath imposed at the date of the manxaaaission. That 
 release from slavery was at first only possible by a proceed- 
 ing before the Praetor in open court called in jure c essio 
 which amounted to wfeat in our time is a confession of judg« 
 ment. The master took with him the slave and a friend who 
 acted as an assertor of liberty. That friend alleged the 
 fiction that the slave in fact was and had always been a 
 free man and the master confessed it by formally teLking his 
 
486 
 
 hand off from the slave, ( manu mitt ere ) , and the Praetor 
 adjiidged the slave a Freedman. But his freedom was clogged 
 with certain duties due to the master as Patcon. The Freed- 
 man was bound to treat his Patron with the respect due from 
 a child to k±% its father, and to provide him with subsist- 
 ence if misfortune left him in want, and in addition to do 
 such work for him or render such services as were promised 
 at the manumission. The Libertus also in spite of hie free- 
 dom could not becane a member of the Senate or the Curia. 
 But important changes were on the way. There arose manu- 
 mission by the Emperor, in the church before the bishop 
 and the congregation, and finally before the Praetor passing 
 along the street, or in presence of a group of fiiends or 
 even by letter. If seme of these maaimissions were informal 
 they were validated by the Praetor who would refuse to the 
 master any authority to regain hie slave. Notwithstanding 
 this conferred freedom the Patron had dominant rights of 
 succession to the property acquired by the Freec3man. If 
 the latter left no heir the former took the whole estate. 
 If there was an heir but disinherited by the will, the 
 Patron took half of the estate. If that amounted to 100,000 
 sesterces or more the Patron had an equal share with each 
 child. Justinian righted some of these wrongs and gave 
 the succession to the natural descendants of the Freedman 
 
487 
 
 and only to the Patron -Kiien noneji^ such existed. Beyond that 
 he made effectual any form of ms^ission which involved 
 the Kiaster's consent, and put the Preedman in all respects 
 on a level with the Oivis except as to the duties due to the 
 Patron. 
 
 The L atini Juniani v/ere persons who had been imper^ 
 fectly manumitted or by masters having only the teonitary 
 ownership, and owed such freedom as they had to the pro- 
 tection of the praetor. The Latinus had no public rights 
 and no privilege of the Connubium . He could not take under 
 a will, nor make one for himself. To a modified extent 
 he had the ^ Commercium and could make valid contracts 
 except mentis causa , but on his death was necessarily intestate 
 so that all his property went to his Patron just as if he 
 hatd remained a slave. Justinian abolished this class entire- 
 ly and made every emancipated slave a full citizen, and 
 further decreed that, without solemn words or any restric- 
 tive forms, every manumission should be effectual when found- 
 ed upon a manifested intention. 
 
 Some good came also to the slave who remained such. 
 The master was denied the right to throw him to the wild 
 beasts: if he was abandoned because, old and infirm he gained 
 his freedcto : the master could not kill him without the con- 
 sent of a magistrate: if he did so without just cause he 
 incurred the penalty of homicide. This was not much, but 
 
488 
 
 it wae something: at least movenent in a right direction, 
 The Law, however/ severe, "began to regard the slave as a 
 human being, and not wholly as a chattel or beast. 
 
 The principal causative agency in all these changes, 
 neagt to the freedom won by the wife, was undoubtedly the 
 Praetor's attack upon the law of Inheritance. The Civil 
 succession of the male line, of the Agnates, ending in 
 the Gens and excluding the line of the daughter, was indis- 
 solubly linked with the paternal power and the marital tyr- 
 anny, and wasi sure to fall with them under the stress of an 
 improving morality auid the legal astuteness of the Praetor. 
 It was inevitable that he should intervene , His whole sys- 
 tem stood on what he called natural law, and that involved 
 the natural succession, the right of all the children, and 
 had no respect for the artificial legal familia which trampled 
 on that ri^t. And so he began his battle in behalf of the 
 Cognates as natural successors. He advanced, as he always 
 did, modestly and with caution. Under the Civil law, the 
 son, where the father died intestate, took the whole estate, 
 held all the assets and was bound by all the obligations. 
 He represented the father and took his place exactly and 
 completely. His was a hard case when the father was in- 
 solvent and debts exceeded assets, for his own property 
 was liable for the deficiency, and so he often refused to 
 
489 
 
 administer and left the inheritance vacant. The busy 
 thought of the Praetor saw this opportunity, and he began 
 to give what he called possessio bonorum ^ or possession 
 of the estate, to an heir next in order. He described 
 this measure as one in aid of the Oivil law,, but before 
 long was found giving such possession in direct defiance 
 of that law and at his own descretion. We know what that 
 meant. It let in the eo ornate s and established the natural 
 succession wlich later Justinian recognized and regulated. 
 A great change also caine over the will. Its vital 
 necessity was the formal institution of an heir and the 
 disherison of others who might have been entitled. Without 
 that it was invalid: with that it put the person selected 
 in the very shoes of the testator, so that he bacame, as 
 we have said, both executor and residuary legatee, and at 
 the same time liable for all debts whether assets were suf- 
 ficient for payment or not. This last and most serious 
 difficulty Justinian remedied in one of his Hovels by al- 
 lowing the instituted heir to fill an inventory of the es- 
 tate, and upon his doing that within a specified time, 
 relieving him from any further liability after the assets 
 were exhausted. He was thus distinctly put in the attitude 
 of an executor. But that was not all. A testator some- 
 times gave away his whole estate in legacies with the re- 
 sult that the instituted heir had no motive to enter upon 
 
490 
 
 the administration, and so by the Falcidian law the amount 
 permitted to be given in legacies was limited to three 
 fourths of the estate and there was always left one quarter 
 for the heir which thus became knovm as the Falcidian 
 quarter. But the Roman father could not disinherit his 
 children recklessly or without reason. If he did so they 
 might challenge the act, or if passed over in silence 
 claim their share. This right of theirs was vindicated 
 by a fiction of the testator's insanity, under cover of 
 which a disinherison without just cause or eone substan- 
 tial reason could be judicially reversed and the proper 
 share awarded. 
 
 jnto the midst of these testamentary rules came 
 a lawyer » 6 artifice which we shall see again in England 
 when the priests are fighting the Parliament, and which 
 specially interests us for that reason^ A testator now 
 and then desired to give his property or a legacy out of 
 it to some one incapable of taking it under the will, and 
 so the gift was made to a legatee who coul d take with a 
 request that he would hand it over to the beneficiary in- 
 tended? and thus we confront the earliest form of a testa- 
 mentary Trust. Gaius tells us hd*w this thing happened. 
 He says: "A woman, whom a testator registered in the 
 census as owning a hundred thousand serterces, cannot by 
 
491 
 
 the Voconian law be instituted heir, but can take the suc- 
 cession through the intervention of a trustee:" and then 
 he adds that there are certain Latins disabled by the lex 
 Junia, and slaves under the age of thirty, and Celibates 
 and Orbi, whose disabilities we have explained, and aliens, 
 as to Tufcom he adds, "this was the principal motive in which 
 Trusts originated." What now is here disclosed to us? 
 Palpably, it is Equity beginning to mitigate the harshness 
 and severity of the law. It began in Rome and at the hands 
 of the Praetor, It did not begin with an English Chan- 
 cellor dealing. out a mercy painfully slow from beneath 
 the frown of an awful wig. At first this Trust was quite 
 precarious because not enforceable. The words constitut- 
 ing it were I ask, I request, I beg, I entreat, or equiva- 
 lent expressions, and everything depended upon the honesty 
 of the Trustee, the Fidei Commissarius , the agent of faith. 
 But Augustus led the way in his ov/n person to & strict 
 observance of the Trust duty, and very soon it became 
 obligatory and enf ores able ; with the consequence that new 
 questions arose requiring new solutions, and so steadily 
 developing the new law. For example, this: the instituted 
 heir administering the estate was personality liable for all 
 the debts of his testator as weji' have heretofore explained, 
 fb require hirr. to pay all those debts and yet hand over 
 
492 
 
 the sum of the assets to another was grossly unjust and 
 simply intolerable; and so the Praetor determined that the 
 Trustee should be liable to the creditors to the extent of 
 
 the assets received by him, and to that extent the Heir 
 should be relieved from liability. That our own Testament- 
 ary law is derived from the Roman system seems to be reason- 
 ably certain. We have read Mr. Coffin's learned argument in 
 behalf of the Germanic origin without being convinced, and 
 remain disposed to accede to Judge Hotoes' conclusion t lat 
 "wills were borrowed from Rome", and that "the modern 
 Executor derives his chga'acteristics from the Roman Heir. 
 
 There were other directions in which the Civil 
 Law grew under the influence of the Praetorian method. One 
 of them will be foisiad in the law of Assignment. The Jus 
 Civile knew nothing of that sort. It did not permit the 
 transfer of a mere obligation from the original creditor 
 to another who became creditor instead. A Novation w as 
 no exception to this rule for in that case a new debt was 
 substituted for an old debt extinguished, and there was no 
 transfer of a continuing obligation. And yet quite early 
 a device was invented to produce the resultant effect of 
 such a transfer, and shelter it under the protection of the 
 Law. That Law knew a Mandatum or contract of agency, and 
 recognized the agent under the nscie of Procurator . The 
 
495 
 
 creditor, desiring to make a transfer of a debt due to 
 him, might, therefore, appoint an agent to sue for and re- 
 cover the debt, and then he might authorize such agent to 
 retain the money collected for his own use, and so reach 
 the result of an assigmment of the obligation, b^"*^ this 
 agent had to sue for a debt due to his principal and not 
 for one due to himself, and his attitude was not changed 
 until by joining issue he became entitled to a judgment 
 payable to him as Procurator . The praetor in the end re- 
 cognized and simplified this process. He tore out of it 
 its real meaning and planted himslef on that. He threw 
 aside the artifice of an agency and looked only to the 
 
 obvious intent to transfer the obligation, so that the 
 
 transferee 
 
 ±zaix£sx became entitled to sue in his own right, and the 
 
 debtor could only pay him after due notice of the transfer. 
 
 Finally we call attention to the groirth of the 
 
 j^Roman law on the line of Bailment and Sale. We have 
 
 already traced the former from the moral duty to return 
 
 the thing bailed, which was an absolute duty, to the 
 
 point where excuses were admitted for a failure to return, 
 
 which excuses were founded on the degree of caxe required 
 
 of the bailee. The Citil Law established the degrees of care 
 
 which in each case would excuse, taking as its standard 
 
 the average conduct of prudent men in the management of 
 
494 
 
 their own affairs. The two principal causes of a failure 
 to return were fire and theft and where the case was one 
 of a gratuitous deposit, solely for the benefit of the 
 Depositor, and the thing "bailed was burned in an accidental 
 fire or stolen by a midnight thief the argument of the 
 bailee for his excuse was morally iiiBesistible , when it 
 appeared that he had kept his friend's deposit with the 
 eanie care which he habitually gave to his own goods of 
 similar character and value. The excuse was admitted, 
 and settled the measure of care required in Depositum . 
 
 The Commodatumj or gratuitous c3e posit for the use 
 of the bailee, required a higher degree of care, still 
 based on distinctively moral grounds. The deposit was 
 for the sole benefit of the bailee and founded on the 
 confidence and kindness of the bailor. Cleeirly, the 
 borrower ought in such case to take even better care of 
 the thing lent than he did of his own. He might be care- 
 less of his own, but must not be of what friendship had 
 without reward entrusted to his use. Of him Justinian 
 required exacta diligent ia , the utmost diligence, which 
 Gaius describes as that which the most didigent head of 
 a family would take of his own costly goods. 
 
 Then came the mutuum or loan of something to be 
 consumed and so retruned only in kind. The subjects of 
 
495 
 
 such loan were at first corn, wine and oil; things which 
 could be weighed, measured, or counted, and so were called 
 res fungibiles, or fungibles. Here the thing loaned became 
 the property of the borrower and so no o^uestion of care could 
 arise. The return must be made in any event. But the praetcr 
 began to see that the morality at the bottom of this trans- 
 action was that of contract, and especially so in the case 
 of a money loan. The lender began to v;ant interest as 
 compensation for the use of his money and that came only 
 by the promise of a stipulation; and then he wanted secu- 
 rity and so sureties; and then a fixed date for payment, 
 and next written evidence of ^ the loan in the shape of a 
 promise to pay and so begins to come the promissory note, 
 its endorsement and guarantee, the bill of exchange, the 
 draft J the check, all the machinery of the Law Merchant, 
 destined to spread itself over the world, and be equally 
 the handmaid and the weapon of Conmierce, But that was a 
 new and outside evolution. The Roman law knew no such con- 
 ception and had no part in that wonderful development, 
 it knev>' only the transfer of an obligation to a known and 
 specified individual and that only by the awkward artifice 
 of a mandate. Any such idea as that of tying an obliga- 
 tion to a mere piece of paper/so that the transfer of that 
 
496 
 
 paper to unknown hands would set the obligation on its 
 travels and create a liability in faTor of the stranger 
 possessors was far beyond the Roman law or even the 
 Common Law. 
 
 But there was a remarkable evolution connected with 
 Pignus or the Pledge, The Roman began early to look about 
 him for some security that would strengthen a promise, euid 
 his first effort was in the direction of adding promise to 
 promise, putting two promises in place of one. We recall 
 the Vadimonium of the Twelve Tables which required a surety 
 for the future appearance of the party before the Court , 
 and for the delivery according to its judgment of property 
 entrusted to his possession pending the litigation. Beyond 
 that there were the Sponsio and F ide -jsr omi s sa o . There is 
 much of doubt and confusion in the authorities about the 
 precise character of the former. We have heretofore cited 
 from Poste's commentary on Gaius the statement that the 
 Sponsio was a sort of feigned issue. That is true in the 
 sense that it shaped itself into a wager which was a fre- 
 quent method of getting a question before the Court. But 
 it seems to have been more than that and to have served the 
 purpose of adding to one man's promise that of another as 
 surety. Sohm tells us that it had a religious origin; that 
 is was concluded by a libation of wire; and that it partook 
 largely of the nature of an oath. It soon became a method 
 
497 
 
 of binding a surety or guarantor and naturallj^ merged into 
 the stipulation. It was, however, a possible method only for 
 the full Roman citizen, but for the other classes was pro- 
 vided the Fide-promissi o reaching similar results and by 
 similar methods. In time they became obsolete and were 
 superseded by the Fide-^ussio. Gaius explains for us 
 the scope and operation of all three. He says that the 
 two oa.der forms are adjuncts only of the Verbal contract 
 and attached to no others, while the latter form may be 
 ad'^oined as well to the Real, the Literal, and the Con- 
 sensual: that the successor in the aaut earlier forms is not 
 bound, but in the later one is always liable: that the 
 older surety was discharged from his obligation after two 
 years, and the total obligation was divided into as many 
 parts as there were sureties and each was liable only for 
 his single part, while the later surety is never dischajged 
 except by payment of the principal obligation: that where 
 there are several sureties in the older form the insolv- 
 ency of one does not increase the burden of the others, while 
 in the later form, if all are insolvent but one, he must 
 be held for the whole debt: that by the decree of Hadrian 
 there was what our Common Law calls contribution among the 
 Sponsors , but Fide^fctjussors are not governed by that rule 
 unless when sued they claim the benefit of it. It is 
 
498 
 
 obvious from the nature cf these differences that the law 
 of suretyfeSipp underwent a process of grov;th and de*.(Blopment 
 and out of daily experience of its operation the courts 
 and emperors were continually shaping it to meet the new 
 needs of their time. 
 
 But the lender of money began to want something 
 better than mere personal security, something that was real 
 and tangible, and which might serve as a guarajnty and source 
 of payment, not dependent upon the will or necessities of 
 the debtor or his friends. The first effort in that direc- 
 tion produced the Fiducia which bore some resemblance to our 
 mortgage. The borrov/er made an actual transfer by mancipa- 
 tion of his land or goods which passed the Quiritary doi|inion 
 and full legal title to the lender, but upon the express 
 trust that he should convey back again upon payment of the 
 debt. Of course the creditor could sell for default of 
 such payment because he stood as legal owner. That last 
 fact proved a very perilous one for the borrower. His 
 creditor could sell at any time and vest title in another 
 and so borrower might lose his property though able and 
 ready to pay with no remedy except a personal one against 
 the creditor. Then came the Pignus which removed that 
 danger but developed one nearly as bad to the lender. By 
 that process only the possession was transferred to be held 
 
499 
 
 by the lender as security. But title remained in the 
 debtor and so the creditor could not sell even on a default 
 and had no means of compelling payment out of the property. 
 Then followed the Hypotheca in which neither possession nor 
 ownership passed from the borrower, but instead a right of 
 seizure and sale upon default of payment resting as a 
 burden upon the property of the borrov/er and clinging to 
 it in whatever hands it might pass. Thus the Civil lav/ 
 originated the conception of a Lien which the Common Law 
 promptly appropriated for the construction of its mortgage 
 securit y upon real and personal property, but vastly im- 
 proved by its system of notice and registry for the protec- 
 tion of innocent third persons. In process of time the 
 power of sale belonging to the Hypotheca was carried over 
 to the Pigrnus which became the Pledge as we know it in modern 
 law. According to Justinian the Pledgee was bound to 
 exacta diligentia on the greatest degree of care, and was 
 required to return the goods when the debt was paid, and if 
 there was a sale on default to pay over any surplus remain- 
 ing in his hands. Modern adjudication has lessened the 
 degree of care to ordinary diligence but left the Pledge 
 in other respects unchanged. 
 
 So much for Bailment. But one contract was long 
 included in it without Ixxxt logical justification which 
 
 vet in the end of its evolution developed a situation 
 
500 
 
 dependent somewhat upon the rights and duties of a bailee. 
 That was the Mutuum. , placed among the four real contracts 
 of the Roman systemj the remsdning three of which were 
 unquestionable oases of Bailment. The Mutuum was described 
 in terms appropriate to these as the loan of something to 
 be returned in kind. While we can plainly see that the 
 thing 80 loaned at once became the absolute property of 
 the borrower and so was not to be returned at all but some 
 other thing regarded as an equivalent was to be given in 
 its place, and so, instead of Bailment there was an Ex- 
 change or Sale yet the primitive law did not see the dis- 
 tinction. We are told by the best authority that the 
 medieval law of England made the same mistake , and that 
 oner was aaid to bail his property to another even when he 
 made a loan for consumption. In the time of Gaius the 
 emor no longer persisted among the Romans and the trans- 
 action was described as an fixchange or Sale. There was a 
 dispute among the jurists as to Mch it really was. Both 
 sides quoted Homer, and this appeal to the lines of an 
 old poet would amuse us but for the fact that it shows 
 how the law was understood to originate in and rest upon 
 oM customs which had to be studied in order to learn ^at 
 it really was. The use of money as a general representative 
 of value seems to have solved the problem, and it was 
 
f 
 
 0!Wa 
 
 ^:~, U'^' 501 
 
 2y 
 
 deterruined that the transfer of goods to be balanced by the 
 transfer of other goods in return, whether immediately or 
 at an agreed date in the future was an Exchange ; while a 
 transfer for money paid or to be paid was a Sale . That 
 conclusion was reached in the time of Justinian. 
 
 But the Sale brought with it some new consequences 
 and had to be regulated in many directions. There came 
 cases where the transfer and the price to be paid were both 
 agreed upon but)^ delivery and payijient were each postponed 
 to a date in the future. That came to be regarded by the 
 Civil Law as a Consensual contract and valid from the 
 moment when ^ade. It rested on the mutual consent, but 
 no title to the thing purchased passed until delivery, 
 and the vendor was not bound to deliver until the price 
 was paid on tendered. It becairie necessary therefore to 
 settle the rights and duties of the parties during the 
 interim preceding complete performance, and it was adjudged 
 that if the vender failed to pay he should be liable not 
 only for the price but for interest upon it: that the risk 
 of loss or deterioration of the thing sold was upon the 
 vendee; that the seller held the property as a constructive 
 trustee for the buyer, and to that position was attached 
 the duty of a bailee to give good dare, bona diligentia. 
 jujt that provision the atmosphere of the old notion seems 
 
502 
 
 to B-urround the new. The English law departed somewhat 
 from these rules and went a way distinctively its own. 
 But the law of Sales did not and could not stop 
 here. Where the seller was an alien, or a Roman not having 
 the Commercitim , only the possession, the honitary ownership 
 could be transferred. A Qjiiritarian title, bare and 
 naked but legal, might be outstanding. To guard against 
 a possible eviction by the holder of that title the buyer 
 learned to require from the seller his personal warranty 
 against such a disturbance of the possession. This was 
 given by means of a stipulation and operated as a warranty, 
 jt related however only to the possession and was never 
 broken except by an actual eviction. It bore a close re- 
 semblance to the assurance in a modern deed which is 
 known as the covenant for quiet enjoyment. Usually the 
 stipulation included in its terms a penalty for breach of 
 the warranty which was double the value of the property sold, 
 and which could be recovered after an eviction if notice 
 of the hostile claim had been given to the vendor so that 
 he could intervene and defen«^d the title. But ere long 
 the express warranty by stipulation was not needed, and the 
 law began ct o imply a warranty of title on every s41e j 
 but the recovery was limited to compensation, and measured 
 by the value of the thing sold. Once on the road of warranty 
 
503 
 
 the law pushed forward to a new provision. .The Curule 
 Edile had j-uriediMCtion of the public markets, undoubtedly 
 he saw in slaves and cattle abundant room for deceptions 
 practised upon the buyer. The slave might be a runaway 
 or diseased or vicious, and the seller remaining silent 
 about it or asserting a falsehood in that manner work a prac- 
 tical fraua upon the buyer. Hunter says it was as dangerous 
 to buy a slave at Rome as it is to buy a horse in England. 
 And so the fidile issued an Edict having the force of law 
 that on every sale of slaves or animals there should be 
 implied a warranty against undisclosed faults for a breach 
 of which the contract should be rescinded or a deduction 
 in price allowed. The precise terms of the Edict sedm 
 to have been limited to animals and slaves, "things that 
 move themselves," but Ulpian assures us that the rule 
 extended to all things movable and even immovable. It 
 thus came feibout that in every Roman sale there was an im- 
 plied warranty both of title and quality. There was no 
 room for that doctrine of caveat empto r which pre'wailed in 
 the common law of England, Xk±^ While that implied in the 
 case of a sale of personal property a warranty of good 
 right to^ell, it refused to adopt an implied warranty of 
 quality save in a few peculiar and exceptional cases. 
 
 And here we must leavd Rome and transfer our investi- 
 
504 
 
 gat ions to other regions. We have gone tax enough in the 
 study of her Civil Law to learn from it how Law grows, is 
 built up, constructed, out of the pe vailing morality of an 
 Age. The lesson is worth its cost. 
 
505 
 
 X7I. 
 
 THE AMGL pass AXONS . 
 
 How the Roman law planted itself in Britain, and 
 what became of it when the legions were withdrawn, and 
 the Saxon barbsirians overran the island, are questions 
 even yet unsettled, and which have evoked a wide diverg- 
 ence of opinion. On the one hand, most of the English law- 
 yers and authors have quite steadily claimed for the com- 
 mon law an indigenous or Tdutonic origin, while many histor- 
 ians and Civilians have with equal confidence traced it back 
 to the Roman system. Perhaps the real truth will turn out 
 to be that the criminal law of England had substantially 
 a GermasLc origin, while its civil and? ecclesiastical law 
 was in large degree derived from that of Rome. It is the 
 historical methbd which must determine the inquiry, and 
 reach its ultimate conclusion by furnishingan antrwer 
 to two questions; and those aire, what, if any, was the 
 actual opportiinity which the Roman law had to dominate the 
 life of the original Britons; and what in tmuth was the 
 result of that opportunity as manifested in the law first 
 of the Saxon and then of the Horman invadees. There was 
 undoubtedly a full and complete opportunity; so full and 
 so complete up to the arrival of the Saxon ships as to 
 make certain not only the prevalence of the Roman law 
 
506 
 
 among the rude islanders, but to render improbable the 
 theory that it disappeared at last and left no trace. 
 Caesar crossed over from Gaul about fifty-five years be- 
 fore the coming of Christ/ He has told us Tiiiat he sftw: 
 a land occupied by barbarians, cultivating the egirth to 
 some extent in the south, but elsewhere dressed in the 
 skins of wild beasts, living in rude huts, having no 
 wealth but arms and cattle, fighting each other continually, 
 and whose normal life was war and robbery. There were multi- 
 tudes of petty tribes, each having its chief, but changing 
 him at will, and no general or central authority save what 
 came from the priestly dominance of the Druids. These, 
 like the Levites among the Jeim and the Brahmen among the 
 Hindus, were a religious order, claiming a supernatural 
 aut Icrity, and absorbing in themselves, not only the control 
 of worship, but all the judicial power to be anywhere 
 disce uaed in the land. They decided such controversies as 
 escaped the solution of the club and spear, which /6/ were 
 few indeed, and largely strengthened their authority 
 by the mystery of their sacred rites celebrated in the 
 gloom of their groves, and by the terror of their human 
 sacrifices which they are said to have made a necessity of 
 their woriip. The legions ccajquered of course and the 
 Britains submitted, but, after a brief stay, the Romans 
 
507 
 
 went bade to Gaul, and the barbarians speedily broke all 
 prcSnises and relapsed into their normal independence. Caesar 
 determined to punish thern, and crossed the channel a^ 
 second time in the following year, and pushed his victorious 
 army even beyoiid the Thames, but again withdraw before the 
 winter storms made return perilous. For nearly a century 
 the Roman purpose of conquest hesitated and halted, broken 
 by the expedition of Scapula who defeated Caractacus and 
 sent him a prisoner to Rome, and that of Paulinus who 
 overcame the warrior queen, Boadicea; until during the 
 reign of Vespasian the real conqueror appestred in the person 
 of Agricola, who mastered the whole island up to the Gale- 
 donian border, and to a line where, in the time of Hadrian, 
 a wall was built extending from the Tyne to the Solway, 
 and aocgs so guarded with garrisons as to check the incur- 
 sions of the Picts and Scots on the north. Agricola prompt- 
 ly devoted himself to the work of introducing the Roman 
 government and laws. He did this with great ability and 
 skill. There was ready to his hand a complete system of 
 provincial administration which Rome had devised for her 
 conquered territories, and had tested and improved as the 
 sequence of many victories and over an sirea almost • world- 
 wide. That system was at once put in operation, and Britain 
 became in all respects a Roman province, and so remained 
 
508 
 
 for about four hundred years. Let us reflect upon the 
 length of that period, and so the opportunity it gave for 
 thoroughly Romanizing the native inhabitants. Columbus 
 landed here in the west in 1492. Suppose during the four 
 hundred years that have since intervened one imposed sys- 
 tem of law had all the time prevailed on this continent! 
 The long experience in Britain must have woven the Civil 
 Law into all the relations of the people. Many genera- 
 tions had come and gone. The earliest of them had nothing 
 to fortoet, for they had no laws of their own, and the way 
 was clear for the planting of the Roman system. The later 
 generations aever knew any other. For them it was their own 
 whatever its origin. And then its equity and justice, its 
 restraint upon violence, its deference to the ecclesiastical 
 authority, its results in the preservation of peace and 
 order, must have commended it to the Britons and won for it 
 a permanent and settled control, in spite even of the prob- 
 able hosti^lity of the Druids . For a time the learned 
 and excellent Papinian , easily chief of the jurisconsults, 
 was praefect of the island; and when Christianity captured 
 Rome and framed its own Canon law upon that of the Empire 
 it crossed the channel as did Caesar and Agricola and waged 
 war upon the Druid priests and their Pagai rites. It seems 
 beyond question that when the Saxons came the whole island 
 
509 
 
 was saturated with the Roman law. We axe warned that Ethel- 
 bert had ruled in Kent for five years when Justinian died, 
 but it is equally true that the Praetor's edict was complete 
 in the reign of the first Caesar. We know also some definite 
 things about the administration of the conquerors. The facts 
 are narrated by Hume and Palgrave and Finlason. The whole 
 island in the hands of its new masters was governed by a 
 Praefect. Representative of the Emperor and subordinate to 
 him, this Governor wielded in his jgirisdiction the entire 
 Imperial power. He commanded the army and controlled the 
 administration of justice. He divided the territory into 
 six provinces over each of v^iich we**- installed a Praetor, 
 When that officer gets at work we know the law grows fast 
 and flexible on its Roman lines. Throughout these provinces 
 were organized towns and military stations and smaller forts 
 to the number of almost two hundred, easily taking the 
 impress of the Roman system. Some, if not most, of these 
 became the English boroughs of wlaich we read in Saxon or 
 Norman tines that York had four and Chester twelve " judices 
 or law-men". The word "doomsmen" was simply a translation 
 of judices or iudicatores. The municipal rights of the 
 cities were those which the Empire awarded to its tribu- 
 taries, and the rights of individuals such as the Civil law 
 gave under the Praetorian edicts. Beyond that it is quite 
 
510 
 
 certain that many Romans impelled by the spirit of adventure, 
 or lured by the prospe(Et of gain, or attached to the 
 comforts and necessities of the legions, followed them in- 
 to the conquered territory and were assigned lands * ich 
 the Britons as slaves or serfs cultivated. The Roman 
 theory of the ager publicus , of title in the Stats to all 
 the land conquered from the enemy, to be parcelled out by 
 the State for its benefit, followed the standards into 
 Britain. The occupants becarae tenants of the Empire upon 
 such terms as it should dictate; the Quiritary dominion, 
 the title in fee remaining in the State, and the tenancy 
 resting upon the conditions wlich it should please to im- 
 pose. Tp what extent this process was carried it is not 
 possible now to determine, but that the conquered land«4 
 were in that manner largely distributed to the military, 
 who held them upon condition of service under the standardf, 
 and to the coloni, who were chargeable with some form of 
 return, is quite certain. All land tenures, even of the 
 Britains themselves if allowed to occupy undisturbed, becajae 
 simply possessory rights contingent upon the agreed terms 
 of pj^osession, or in many cases measured only by some usage 
 or custom ^-ich it was always easy for the Emperor as lord 
 paramount, or his grantees as owners of the soil, to set 
 aside or modify or load down with onerous conditions. There 
 
511 
 
 wss thus set in operation all the rudimental elements of the 
 Feudal System which afterward pre-wailed and shaped the 
 whole laird law of England. It may be that something of the 
 same sort existed among the Britons themselves. We have 
 already pointed out how in another form the same tendendy 
 is disclosed in the Breton tracts as a ciiguracteristic of the 
 ancient Irish law, wliich was described as the taking of 
 stock and resulted in creating a subordinate tenantry, 
 vary much at the mercy of the Chief or Lord, and having 
 only a possessory right. The Welsh laws of Ho\vel Oda, drawn 
 largely from the much older Triads of Moelmud seem to indicate 
 an early relation of Lord and vassaL If that be also true 
 of the Britons it was just so much easier £or the Roman sys- 
 tem to plant itself on the islatid and take a^ firm 
 hold on the soil. The conquerors did not exterminate the 
 original inhabitants. They simply mastered and subjected 
 them, and that in such manner as to substitute peace and 
 order for rapine and violence, to encourage commerce in 
 the cities, and protect the labor and possession of the 
 native inhabitants occupying and cultivating the fertile 
 valleys. It seems very certain that at the end of the 
 Roman occupation the whole of Englaaid was under the long 
 and complete and peaceable dominion of the Civil law; that 
 there was no other; either known, -e^ee ^ ouch Koltiu c u h iLum Eh 
 
512 
 
 remeiabered, or desired, except such Keltic customs as may 
 have survived ;and that the sole remaining problem is what 
 beca'ne of it when the Saxon and Norman invasions had spent 
 their force. For Rome at last, pressed on all sides by the 
 barbeirian flood, pouring over her borders and beating against 
 her walls, was approaching dissolution. The Emperor was 
 obliged to recall his distant legions and abandon their 
 conquests, and the surmy stationed in Britain was ordered 
 home. With its departure the old raids began from the 
 north. The Picts and Scots broke over the Roma": wall and 
 harried the island. The Britons, however oppressed, had 
 long enjoyed peace, and, in the security given them by the 
 rule and protection of Rome, had almost forgotten waw, and 
 had grown ill-fitted to coontend with their adversaries. 
 For about forty years the \inequal stnnggle continued, until 
 in despair the Britons are said to have invited the Saxons 
 to come to thdir aid. With or without that invitation the 
 latter came, and after repelling and punishing the northern 
 raiders, turned their swords against the Brito-ns and began 
 the conqiest of the island. That was not the swift work 
 which is in some quarters carelessly supposed. It occupied 
 one hundred and thirty years. Shipload after shipload of 
 the invaders came, each band fighting its way to a settle- 
 ment and making good its hold. At the beginning the Britons 
 
513 
 
 were habitually exterminated. Ho quarter was given. Those 
 who fled were driven into their forests, and largely into 
 Wales where they long maintained themselves among its 
 impregnable rocks. But the process of extermination did not 
 continue. Very soon large numbers of the Britons are found 
 living by the side of their conquerors. Turner telle us 
 that "the fierce warriors of Germany wanted husbandmen, 
 artisans and menials for domestic purposes,)' and adds 
 "there can be no doubt that the majority of the British 
 population was psserved to be useful to their conquerors." 
 Green tells us that in the seventh century "the older wars 
 of extermination came to an end" and "the Britons were no 
 longer driven from the soil but mingled with their conquer- 
 ors." And these were Romanized Britons. Thus the Saxons 
 brought their own law with them but found in operation that 
 of the Romans. Where two currents of nearly equal force 
 meet in a narrow channel and their clash is intensified by 
 variant winds they make what the travellerjlreads and the 
 sailor expects, a cross and turbulent sea. The waves 
 collide and^roken, and the ship's drift is a resultant of 
 the warring forces so intermingled as t o be inseparable. 
 Something like tlat , we may imagine, happened in Britain 
 when the Romanized law and custom collided with that of the 
 invaders. Tennyson sings 
 
 "For Saxon or Dane or Norman we. 
 Teuton or Celt, or whatever we be;- 
 
514 
 
 leaving the ultimate outcome to any one's guess. Fortunate- 
 ly it is of little consequence, except to our curiosity, 
 which element predominated. It is enough to kn^w' that 
 all were there, constantly acting4uid reacting upon each 
 other, and working out a new civilization from the jar of the 
 component elements. To some extent we can trace the results 
 
 The unfortunate island was divided up aslx into seven or 
 
 quarrelled 
 eight kingdoms. They ipiHXflciiaiA of course. The Saxon must 
 
 fight. That was his nature as surely as if he had been born 
 with claws. That they ever unite(3., even as confederates for 
 the purpose of a common defense, was only true temporarily 
 and withing the limits of brief occasion. What is certain 
 appears to be that in the monotonous succession of one 
 ruler after another to the separate thrones, a/succession 
 usually founded on the treachery of assassination, there 
 was alwjias a struggle for supejiority and an effort at ab- 
 sorption. In the early years of the ninth century the 
 fragments were consolidated under Egbert only to be again 
 separated by the irruption of the Danes; and finally brought 
 under one governmental control by Edward the Confessor, jt 
 must be admitted that in the early years of the Saxon 
 conquests the Roman law disappeared from the obvious 
 surface of things. Its magistrates fled or were slain, its 
 courts were closed, its preponderance was ended, fhe 
 
515 
 
 ruling race introduced their own language, customs, and laws, 
 such as they were and so far as they could be made to ap- 
 ply. And yet the Dooms of their kings were few and narrow, 
 aimed only at crimes of violence, or the status of individuals 
 Pollock and Metitland very justly describe them as "mere super- 
 striictures on a much laxger base of custom." They igrast have 
 left the great mass of private rights to be determined by 
 the customary law. Ihen that cams to be applied especially 
 in controversies between Britons and between a Briton and 
 a Saxon, and When, as later happened , a Bishop trained in 
 the canon law sat upon the bench in the local courts, it 
 seems probable that the doctrines of the Roman law would 
 be found to have permeated the race customs and notions of 
 morality. We must also allow for the coming of Augustine 
 and with him the advent of Christianity, the priestly know- 
 ledge of Latin and the formidable inflence of the Canon law. 
 Taking these facts into accoujit it seems a reasonable con- 
 clusioh that the law of the new masters wMle dominant was 
 not exclusive, that it spent its main farce upon a rude and 
 barbarous procedime, and that underlying that very ftuch 
 of the poevailing Roman doctrine governed the relations of 
 the people and even wove itself into the thought of the 
 invaders. The probability grows stronger as we study the 
 Saxon laws which have come down to uSi . If we examine the 
 
516 
 
 Dooms of their kings we shall be struck with the poverty of 
 their details and the narrov/ness of their application. First 
 in the order of time are the laws of Ethelbert, king of Kent, 
 fourth in line of descent from Hengist, the original invader, 
 and who was converted to Christianity by Augustine in 597, 
 about thirty years from the beginning of his reign. These 
 laws contain ninety separate provisions in the same number 
 of paragraphs most of which do not exceed a single printed 
 line. Much Ihe larger portion were devoted to the "bote", 
 or the war, and the "w^ite", which were respectively the 
 composition or blood price payable to l^Kxkxxsx Ibuy off 
 revenge, and the fine payable to the king. From the grave 
 offense of homicide they run down through the most minute 
 details of personal assault. These were some of the prices: 
 for each of the four front teeth six shillings; for the 
 tooth next in order four shillings; for the one next three 
 shillings; for each of the rest one shilling! If an arm 
 is broken it costs six shillings; but if the thumb is struck 
 off twenty shillings; if only the nail is gone three shill- 
 ings; if the shooting finger is struck off, eight shillings; 
 if the middle finger eight shillings; if the ring finger, 
 six shillings; if the little finger eleven shillings; for 
 every finger nail, one shilling; for a blow on the nose, 
 three shillings; and so on in sixty-five different forms. 
 
517 
 
 making about two thirds of the whole number of Dooms. 
 
 Of the remaining third one portion is devoted to the 
 offense of theft, Ti\toich is regarded after the archaic fashion 
 in the light merely of a personal trespass for which compen- 
 sation is to be made, and that is graded in accordance with 
 the dignity of the individual vhose property has been 
 stolen. If the thing taken belongs to God and the Church 
 the restitution must be twelve fold; if to a Bishop, eleven 
 fold; if to a Priest, nine fold; to a deacon, six fold; and 
 to a clerk, three fold. Oddly enough , if the theft is from 
 the king, the penalty is nine fold, or the same as that of 
 a Priest and below the Bishop and the Church. If a freeman 
 steals from a freeman the bote is three fold and there is 
 a fine to the king. If the theft is from a dwelling house 
 the composition is three fold, but if the thief is a thrall 
 the penally is two fold. The remaining provisions are de- 
 voted substantially to other forms of trespass, like break- 
 ing into a field, furnishing weapons for an assault, or 
 corrupting wife or maiden, for all of which a precise axid 
 uniform conpensation is provided. And so it ^±e obvious 
 that these Dooms assume the existence of so much customary 
 law as siiffices to reg-alate the private rights of individ- 
 uals, and operate only upon torts and with a view to repress 
 violence and keep the peace. They are barbarian all through 
 and utterly unlike the rules which they are supposed to have 
 
518 
 
 The Dooms of Ine who became King of Wessex in 688 
 yield us substantially the same results, except that they 
 deal largely with religious questions, and are so xKslcua. 
 veined with ecclesiastical rules as to show the , influence 
 of the two Bishops naaied as taking paort in their construc- 
 tion. They, however, were the best of 20.1 and furnished the 
 material on which the false reputations of Alfred aJid Edward 
 were founded. They indicate the extrinsic existence of 
 that body of customary law to which we have referred, and 
 especially of that sort of land tenure which characterized 
 the Feudal System, and of the warranty igiplied in the sale 
 of movables. Thus: if a tenant agrees for land and culti- 
 vates it and the sx lord raises the rent or service the tenant 
 is not bound to give it, but may leave the land taking the 
 crop due to his labor; a rule still applicable to the de- 
 termination of a tenancy at will. And thus again, the pos- 
 sessor of movables which axe attached as the stolen goods 
 of another must vouch his vendor to warranty in order to 
 
 hold his title, or if he loses it, to have damages against 
 the warrantor: and even where the vendor is dead the posses- 
 sor challenged must vouch to waxranty the tomb of his vendor, 
 and then, with an oath of sixty hides, declare that the 
 dead hand sold it to him. A system of compurgatory oaths 
 is all the time assumed. 
 
519 
 
 Next in the order of the Dooms are those of King 
 Alfred, which have been very much praised. After a careful 
 study of them we are not in the least inclined to ;ioin in 
 the choirus. Those Dooms begin with the ten Conraandments 
 and the Mosaic law gathered from the Pentateucii, and formu- 
 lated very much in the way in Tiriiich we have heretofore stated 
 it for purposes of ccmparison. The list ends with those 
 familiar acts of violence and trespass to which are affixed 
 the "wer" and the "wite". So far there is nothing new, no 
 advance in any direction or to any extent, but only a solid 
 borrowing of an older and priestly code and of a later and 
 barbarian system. In between are four or five provisions 
 seemingly new but really, as we are convinced, only a formal 
 statement of existing and well-known customs. One of the 
 Dooms shifts the burden of proof and requires an accused 
 person to establish his innocence. If an infant is com- 
 mitted to a guardian's charge an^ dies, the custodian must 
 show that the death occurred through Ho fault of his. The 
 death and the accusation shift iXipon him the burden of 
 proving his innocence. Aiiother introduces us to the f olkmot , 
 or assembly of the villagers, sitting as a court for the 
 trial of trespasses against the peace and order of the group. 
 There is some dispute about the translation, but the meaning 
 appears to be that he who accuses one of theft and then 
 
520 
 
 withdraws the charge must proceed to fasten it on the real 
 culprit, or pay a fine for a false or unfounded accusation. 
 There is also a provision for a freeman's removal from one 
 group, called a shire and answering to our County, to 
 another. He must do it openly and publicly, and abandon 
 the land in the home -group when he transfers himself to 
 another. This law gives us a plain indication of the com- 
 munal element in the Saxon ownership of land which some 
 modern critics dispute. When the discontented tribesman 
 leaves his tribe he leaves all his rights in the tribal 
 land. He had no right in it save as one of the group, and 
 in the group and not in the individual resided all of the 
 crude ownership v\ftiich existed. Then follow provisions as 
 to feuds, fixing the conditions under which a man may pur- 
 sue and kill his enemy: providing that he may lawfully fight 
 him in defence of his lord, or of his blood relation, or 
 in revenge for the invasion of his marital rights. The 
 blood feud prevails but with some regulation of its scope 
 and ferocity. 
 
 One other of the Dooms gives us our first glimpse of 
 a Saxon land law which ass\imes and acknowledges some degree 
 of individual right. It relates to what is called bocland; 
 a tenure which we must very soon describe, and which the 
 text declares to be substantially inalienable as against 
 
521 
 
 the kindred, where that character has been liripressed upon 
 it by those from whom it originally came. It permits a 
 restraint upon the growing liberty of alienation. An 
 interesting confirmation of this tendency and leading to the 
 succession of sons in preference to that of daughters, is 
 found in the will of Alfred, who justifies his disposi- 
 tion of his land by saying that it came from the spear 
 side and not from the spindle side. 
 
 The Dooms of the three kings which we have thus 
 briefly described are fair specimens of the eeirly royal 
 laws, and disclowe a remarkable poverty of legislation. 
 They were followed by others vAiich we must no linger over 
 although they grow broader in thdkdr soope and more intelli- 
 gent in tiiss their details. Chief among them are the Dooms 
 of Athelstan, of Gnut or Canute, and of Edward the Confes- 
 sor, to which we shall often find it useful to refer with- 
 out any special study of each. For it is certain that 
 the great bulk of the Saxon law existed outside of the 
 royal decrees, was independent of them, and rested upon 
 the authority and consent of the people themselves. That 
 law must be found in the customs of the race, more or less 
 mixed with those of the conquered people but holding an 
 observable mastery over them; custon s redolent of their 
 Germanic ancestry and held fast in the memory of the freemen. 
 
582 
 
 These custoras are so inwove with the status of the Seixon 
 and his judicial procedure as to require our further in- 
 vestigation along those lines. 
 
 The whole race was at first divided into three classes; 
 the Eorl, the Oheore, and the Slave or thrall. The first 
 two were the freeraen, differing only in some recognized 
 nobility of birth which gave to the £orl special privileges 
 and advamtages. To be a Saxon freeman, ingenuus, it was 
 essential to possess land. The man must have his homestead 
 or alod, which was the family inheritance, and then the com- 
 mon interest in the arable mark and in the area of pasture 
 and forest which served as boundary, as well as grass land 
 for the winter's hay and mast for the half wild swine. Such 
 a possession entitled him to sit in the assembly of the mark, 
 to vote upon thequestions which affected the welfare of the 
 group, and to help thedecision of controversies submitted 
 to the court of the Hundred. He went armed habitually. 
 His plough was held mainly by his slaves or dependents who 
 were serfs, his cattle cared for by them, his swine by the 
 swineherds roving the forest. He himself drank beer, 
 hunted in the woods, or fought on slight occasion. His 
 judgment in the couct of the Hundred was based very little 
 upon testimony or witnesses. These neighbors knew each 
 other and all about each other. They knexv each man's right 
 in the land, and th-3 line of descent down which it came, aaid 
 
523 
 
 the reputation and. ckaracter of each member of the mark. 
 They decided largly from their own knowledge, and usually 
 influenced by the standing of the parties, and where these 
 failed were aided by the oaths of Compurgators and ther 
 wisdom of the Deity as indicated by the result of the 
 Ordeal. These two, — Compurgation and the Ordeal, — ^were 
 the characteristic features of the Sauxon Procedure, from 
 the former of which it was once claimed that trial by jury 
 descended. The Compurgators were oath-helpers, that is 
 they endorsed and conformed the veracity of the oath sworn 
 by the party for whom they acted, and asserted their belief 
 in him and it. They were not necessarily witnesses, as 
 Hume inaccurately describes them. They did not invariably 
 testify; and yet they assumed to have some knowledge, if not 
 of the facts, at least of the reputation of their principal. 
 If somethimes a mere accusation of a complainant put a party 
 to his oath was not always so, especially in criminal cases, 
 for there seems to have been an accusing body or inquest 
 like our grand jury. In the laws of Ethelrea it is pro- 
 vided that in the Hundred twelve thanes or freeholders were 
 to be sworn that they would accuse no innocent man, nor 
 Conceal any guilty one, And the Dooms of the same king 
 indicate that the concurring voice of eight out of the 
 twelve was sufficient to establish the accusation. This 
 hint of an accusing jury at so early a period is interesting 
 
524 
 
 though we know little of the real facts. The investigations 
 of Pollock and Maitland indicate that such an inquest was 
 confided to twelve men of the Hundred and four men of the 
 Vill'^^: that they examined no witnesses and made no specific 
 criminal accusation, but presented men of bad reputation and 
 notorious for their loose living: that where the inc^airy 
 developed a crime committed and unavenged the accusing 
 jury becarue also in some fashion a trial jury: but that the 
 inquest in settled form is only to be found as a practical 
 institution at the date of the assize of Clarendon on about 
 1166, at which period the accusing jurors "avow" and present 
 what they have learned from common report, When they ap- 
 pear before the court they are closely questioned, indeed 
 almost catachized. They are supposed to know ishat occurs 
 in their hundred or vill, and if a crime is disclosed they 
 name the suspected person who is forthwith sent to the 
 ordeal, but later and in the fourteenth century, may put 
 himself "on the country", that is, submit his case to a 
 jury of the vicinage. How and when the change came by which 
 the one jury became merely the accuser while the other sat 
 at the trial we do not know. We do know that it was earlier 
 than the sixteenth or seventeenth century though how much 
 earlier is quite uncertain. For, in two small black-letter 
 volumes published by Rastall to whom Reems refers in his 
 history of the English law is a seation entitled in old 
 
525 
 
 Latin "The Met Jtod of Holding the Court Baron and View of 
 Frankpledge." The volumes bear the date of 1534. Passing 
 by some formalities of the opening of the court, we find 
 the following directions. "^11 the enquest and byd the first 
 man laye his hand uppon the boke, eayenge unto him in 
 this wyse : thouy^ shalt trewly enquire and trew presentment 
 make of all that thou shalt be chaxged of in the kynge's 
 behalf and the lords of the franchises that is worthy to be 
 presented, and the Kynge'e consail, thy fellowes and thyne 
 own well and trewly kepe , and for nothinge let but eothe 
 fare, so help the God and thy holydome : and byd him kisse 
 the boke. And then call two or three togyder and bydde 
 them laye their hands uppon the boke and say to them in 
 this wyse : all such othe as John here hath sworn ye shall 
 kepe so helpe you God and holydome, and bydde them kisse 
 the boke. And so call forth all the enquest in the same 
 manner or wyse." The resemblance to our modern practice 
 is manifest. The steps by uti ich this orderly and regular 
 grand jury was developed from the primitive jury of rumor 
 and suspicion we have no means of knowings It might be 
 possible to guess at them, or frame a theory of the process, 
 but we should be left to a hopeless uncertainty! The forms 
 of pleading in these old courts have come down to us and 
 apparently they make up and constitute the issues between 
 
526 
 
 the parties. 1*ie accuser swears: "By the Lord I accuse not 
 H. either for hatred or envy or unlawful lust of gain; nor 
 know I anything soother; but as my inforniant to me said 
 and I myself in sooth believe that he was the thief of my 
 property." The answering oath isf^ sometimes the simple 
 denial. "By the Lord I airi guiltless both in deed and coun- 
 sel of the charge of which A. accuses me." That is the 
 general issue or plea of not guilty. But sometimes in 
 the common case of stolen cattle, where the question isj^ 
 really one of title, the defendant goes more into detail, 
 and his oath varies according to the facts of his defense. 
 He says: "By the Lord I was not at rede or at deed, neither 
 counsellor nor doer, where were unlawfully led away N. 's 
 cattle. But as I cattle have so did I lawfully obtain them": 
 or, "As I vouch it to wsurranty so did he sell it to me into 
 whose hand 1 now set it": or, "As 1 cattle have so did he 
 sell it to me v;ho had cattle to sell" : or "AS I cattle have 
 so did it come of my own property!;, and so it by folk-right 
 my own possession is and my rearing =" Then, if the oath- 
 helper had knowledge, his oath was: "In the natiie of Almighty 
 God as I here for N. a true witness stand, unbidden and 
 unbought , so I with my eyes oversaw and with my ears over- 
 heard that Ttich I with him say."" This compurgator was the 
 transaction witness about whom we have heretofore spoken 
 
527 
 
 and to whom we shall be likely to refer again: but where the 
 oath-helper pretended to no special knowledge he simply 
 said: "By the Lord the oath is clean and unperjured which 
 N. has sworn." The effective value of the oath -helper de- 
 pended upon his status. The law weighed his words by his 
 social condition, and then in addition assigned to the suf- 
 ficient defense of various accusations the nimber of oaths 
 necessary and requisite. The oath of a cheorl was reckoned 
 at ten hides or shillings: that of an eorl at six times 
 that or sixty hides, and the law of Ine fixed the same 
 value upon the oath of the "Gesith" or king's coipanion, 
 but the simple word of, the King or Bishop was incontrovert- 
 ible . The oath of a royal thane was reckoned at one hundred 
 and twenty hides, and that of a six hynde man at thirty. 
 Having in view these values, the Dooms determined the amount 
 of proof requisite in terms of hides. A single illustra- 
 tion out of many will explain the working of the system. 
 King Jne had a law against secret compositions, which is 
 found in almost every barbarian code, because by that pro- 
 cess the crown was deprived of its fines and the jjudge 
 lost his fees. The Doom reads: "Let him who is accused 
 fo secret compositions clear himself of those compositions 
 v»'ith one hundred and tv/enty hides or pay one hundred and 
 twE^ty shillings." In that case, therefore, the oath-help 
 
528 
 
 of one royal Thane, or of two Eorls, or of four six-hynde 
 men or of twelve ceorls was the necessary quantity of 
 swearing to procure an acquittal. Sometimee however the 
 quality and number of the oath-4ielpers are specifically 
 dictated. One of Ethelred<s dooms relates to the case of 
 an accusation against a lord's man who runs away and avoids 
 the ordeal, and where the lord himself is charged with hav- 
 ing connived at the escape. In such case the lord's purga- 
 
 Thane s 
 tion required the oath of five SkacEx besides his own. 
 
 Specific numbers were also assigned to the Clergy. The 
 Priest and Deacon could clear themselves fey their own oaths 
 taken at the altar, but a Clerk was required to furnish 
 four, and if the culprit was a Priest's thrall a.nd not a 
 communicant his master could clear him with his own oath 
 and one additional. In the Welsh lav; of this period the 
 amount of defensive swearing needed for an acquittal r-uns 
 from the oath of seven men where the charge denied is that 
 of kissing a maiden up to the oath of six hundred when the 
 
 charge is of a wilful or malicious murder. But if com- 
 purgators were wanting or the accused not oath-worthy what 
 \Bfas to be done? The Saxon sav^ no other remedy than the 
 Ordeal which submitted the question of guilt or innocenos 
 to the Divine judgment. Precisely v^hat circumstances re- 
 quired this solution it is very difficult to deteri.iine, 
 but the Ordeal itself, in its various forr.is, has come down 
 to us in the Dooms of Ethelstan and in the monkish chronicles 
 
529 
 
 of the period. The trial by ordeal was deemed altogether 
 a religious ceremony. Its usual forms were by water and 
 the hot iron. If by water there were tv;o methodsl In 
 one the water was heated and the accused was required to 
 thrust hisjfi hand into it, or in some cases his arm up to 
 the elbow. In the other the water was that of a stream 
 or pond, and the culprit, with his thumbs tied to his toes, 
 was thrown into it. If the hot water left no scald, or 
 the accused sank in the cold wate ;, he was held to be in- 
 nocent. If in the last case he drowned before rescue at 
 least he went straight to Heaven. Ethelstan's doom as to 
 the ceremony is not very clear but gives us many details. 
 When the fire has been borne in to the church no one is 
 to go in except the mass-priest and him who shall go thereto; 
 that is, we suppose, the accused; and then the Dbom 
 proceeds: "And let there by measured ndne feet fron. the 
 stake to the mark by the man's feet who goes thereto. But 
 if it be water let it be heated till it low to boiling. 
 And be the kettle of iron or brass or lead or clscy. And 
 if it be a single accusation let the hand dive after the 
 stone up to the wrist; and if it be three fold up to the 
 
 elbow. And when the ordeal is ready then let two men go 
 
 is 
 in of either side; and by they agreed that it si so hot 
 
 as we have said. And let gc in an equal number of men of 
 
550 
 
 either side and stand on both sides of the ordeal along the 
 church; and let these all be fasting and abstinent from 
 their wives on that night j and let the mass-priest sprinkle 
 holy water over them all, and let each of them taste of the 
 holy water and give them all the book and the image of 
 Christ's rood to kiss; and let no man mend the fire when 
 the hollowing is begun; but let the iron lie on the hot 
 embers till the last collect; after that let it be laid 
 upon the stapela and let there be no other speaking within, 
 except that they earnestly pray to Almighty God that he 
 make mamffest what is soothest. And^ let him go thereto; 
 and let his hand be enveloped and be it postponed till 
 sifter the third day, whether it be foul or clean within 
 the envelope," Another provision describes the preparation 
 on the part of the accused which precedes the ordeal. It 
 reads: "If any one gives wed for an ordeal then let him 
 come three days before to the mass-priest who is to hallow 
 it: and let him feed himself with bread and with water and 
 salt and herbs before he shall go to it; and let him attend 
 mass each of the three days, and make an oblation, and go 
 to housel on the day that he shall go to ordeal; and then 
 swear the oath that he is according to folk-right gjailt- 
 less of the charge before he goes to the ordeal. And if 
 it be water that he dive an ell and a half by the rope,** 
 and let there not be on either side more men than twelve." 
 
551 
 
 The trial by the hot iron consisted in carrying it in the 
 hand the prescribed nine feet. The hand was first sprinkled 
 with Holy water and the method of walking carefully ordained. 
 Sometimes the accused was required to walk the same distance 
 over hot ploughshares. In the case of the Clergy a differ- 
 ent ordeal known as the Corsued was adopted, giving the 
 tonsured sinner a much better chance than was allowed to 
 the members of his flock. A morsel, of bread was placed on 
 the altar with great cerem.ony and numerous mummeries which 
 the accused was required to eat. If he was guilty it stuck 
 in his throat. Generally he came out innocent. Nothing 
 fit to eat ever stuck in a monk's throat. 
 
 Such was the Saxon procedure . Imagine how its 
 coarse and crude barbarity must have struck the Britons 
 long accustomed to a more highly civilised procedure, and 
 those of the Clergy familiar with the canon law. Is it 
 conceivable that the Roman system was altogether forgotten 
 and utterly displaced by the rude customs of the invaders? 
 Pollock and Maitland tellj^ us that there is no real evidence 
 to show that it persisted beneath the Saxon rule,,, and in 
 the relations of private right. Some allowance must be 
 made for their inherited dislike of the Civil Law which 
 shows itself in the occasional way of writing Roman with 
 a small r but always English with a large £. And yet their 
 historical work is so exhaustive, so learned, and so marked 
 
552 
 
 by a marvellous ability , that one hesitates to differ from 
 their carefully guarded opinions. Somewhat in lees degree 
 we have the concurring judgment of Yinogradoff, successor of 
 Maine in the chair of Jurisprudence at Qxfort^ and whose view 
 naturally has respect for the theory of his distinguished 
 predecessor, gut the later teacher has less of the Romano- 
 phobia. He argues however that very much of old Keltic 
 custom persisted under the surface pressure of the Roman 
 rule, and that the new civilization worked no great change in 
 the lower strata of the island population: and so, when a 
 new invasion cgjne from a soijxce itself somewhat of Keltic 
 origin, it more easily displaced the foreign civilization, 
 and led to a naturi. relapse into the grooves of the old 
 way. We are inclined to regard that view not only as 
 plausible but probable: and yet it leaves open still the 
 question of degree; how much of one element mingled with 
 and modified the others; a question never to be completely 
 answered, and not at all until we have seen in the after 
 days how large and masterful v^as the influence which the 
 Roman exerdieed over the Common Law. 
 
 Meantime we should note that there were Sazon 
 doctrines both in respect to real and personal rights 
 which left their mark upon the law subsequently evolved, 
 and which should be taken into account. 
 
535 
 
 And, first, as to rights in land. There were among 
 the invaders two forms of land holding denominated respeo- 
 tively Bocland and Folkland. The former rested upon a 
 charter or written gift, the latter simply upon possession 
 fortified by custom and memory. The word "boc" in the 
 Saxon signifies a beechtree and 'jcame to mean also a book 
 from the fact that the early writings of the Northmen were 
 upon tablets of beechwood. Whether the Saxons, 
 under vifoich name we always include thddr brethern the 
 Angles and Getae from Jutland, had letters of any sort at 
 the period of their invasion is extremely doubtful. If they 
 did they were tijose Runic characters traceable in the North 
 and largely connected with magic and incantations, but 
 which soon gave way to the Saxon alphabet as it has come 
 down to us. And here is unveiled a fact of prime importance 
 bearing upon our present inquiry. It is that the whole 
 Saxon alphabet is made up of Roman letters with the excep- 
 tion of three. The circumstance shows how the new-comers 
 began to appropriate and absorb the higher civilization of 
 the Romaized Britons, and helps to account for the sort 
 of contempt which made the latter always speak of their 
 adversaries asparbarians. But the Bocland was made up of 
 grants by the kings to bishoprics or the nobles, and car- 
 ried to the grantees a title equivalent to our fee simple. 
 
534 
 
 It could be alienated unless tnere were restrictions in the 
 original grants, and was^ occasionally so alienated by the 
 lord to seme chosen dependant. To the same extent it could 
 be and was disposed of by will. But its abhief chsiract eristic 
 flowed from the omnipotence of the royal gift. That could 
 bestow not merely so many hydes of actual land but numerous 
 privileges and franchises rooted in the soil of the grant. 
 There were often given with the land justiciary rights, 
 sac and soc, authorizing and requiring a baronial or cum- 
 tomaxy court and giving jurisdiction over the subordinate 
 tenantry: so much so that where the grant of a Mamon covered 
 a Vill the couKt of axX±iix±iiBEX!S3SHHixKJbctiK the lord be- 
 came the co\a?rb of the Yill. Beyond that the king could add 
 to his gift very valuable privileges. The land granted 
 could be relieved from some or even all the burdens which 
 pressed heavily on the Folkland. Cases are found where the 
 gift to a bishop or a monastery freed the land from all 
 services, and left it wholly unincumbered. It became the 
 example and temptation to efforts at purely individual 
 ownership. While it has been described as an exotic and 
 "a beirbaric imitation of Roman law practice," which it cer- 
 tainly was, it made aggressive war upon the prevailing un- 
 chartered custom, and led the way to that ultimate form of 
 ownership which rested upon individual right and admitted 
 
 of al ie nation Jb:y^f_e_oJEmejit and will. But at first even the 
 
555 
 
 Bocland can scSLrcely be said to have been salable. There 
 were no buyers, and so the transfers were to tenants for 
 years or at will Mch grew to be the normal titles of both 
 freeman and villani. Even the holders in socage had th6ir 
 feiidal burdens to bear. Pollock and Maitland axe probably 
 right in their opinion that all the land of the kingdom not 
 transferred by a written and sealed charter was called 
 Folkland, not because the cammcinity owned it, for they did 
 not always axid altogether, but because the holders held it 
 only by the folk-law which was a possession under customary 
 right. Where the land was held of a superior it was termed 
 Laen-lsind, — land loaned or leased which was almost the 
 universal fact,-*-The actual occupants were largely such 
 holders, many of them freemen and having their several 
 homesteads, but owing service and rent to the bocland lord. 
 That is about all we know of the Saxon te nttiKte s . Obviously 
 the Folkland was held by a very uncertain right. What 
 strength it had came from the custom of transferring the 
 possessory right in the court of the Hundred or of the 
 Shire, or later in the court of the lord, and always in 
 the presence of witnesses. That rule, as we have earlier 
 said, applied to all transfers, and was especially useful 
 in the sale of cattle. There was no other made of estab- 
 lishing title, and it resulted always in the necessity of axi 
 
536 
 
 actual transfer upon an observed consideration. Thus Edgar 
 requires that buying and selling should always be in a 
 "bar*" or "wapentake", anfi that at evecy bargain/ there 
 should be two or three sworn men as witnesses. The bort 
 was the group of ten or twelve men called a tithing and 
 who stood responsible for each other, and the wapentake was 
 the Hundred. Ethelred says "let no man either buy or ex- 
 change unless he have "bori" and "witness". And earlier 
 than that Ethelstan had decreed that no man should buy out 
 of port, but should buy there within on the witness of the 
 port-reeve or ^of smother unlying man. One consequence 
 of this reqiirement we have already adverted to as the 
 warranty of title, arf4, which was in all probability the 
 parent of the ccvenaints of title which have come down 
 to us. The man whose ownership was challenged naturally 
 called in his vendor to establish the title as waraantor 
 of its validity. Reproduced his author, as the Salic law 
 called him. He in turn vouched his vendor, and the suc- 
 cessive steps backward might have becone very burdensome 
 but for the law of Canute aimed at that difficulty. His 
 Dooms provided that the title should be thrice vouched 
 to warranty, but at the fourth time the title should be 
 finally lost or finally won. He added a very short statute 
 of limitations in respect to stolen property. Ihefi owner 
 
537 
 
 must reclaim it in six months or others may get a good 
 title. In the disposition of such questions and others 
 arising we see no trace of a trial by jury or anything like 
 it. The oath-helpers were not jurymen and performed no such 
 duty; and the old theory to the contrary has been substan- 
 tially surrendered, as the result of modern investigation. 
 There were two courts, if we may call theia such, that of 
 the Hundred and that of the Shire or County; but these, 
 as we have said, were assemblies of the freemen guad never 
 themselves determined any doubtful question of fact aris- 
 ing on evidence adduced. If the accused presented the re- 
 qi ired number of oath-helpers and they endorsed him, either 
 with or without knowledge, he was acquitted. If he failed 
 to produce them or they refused the compurgatory oath he 
 was convicted or went to the ordeal. The County court, 
 meeting once a month, had mainly a^ civil jurisdiction, 
 except that it could sometimes initiate accusations of a 
 crimLnal character. It could even try cases of title to 
 land when sent to it from the baronial courts. But the 
 general criminal jurisdiction wasy vested in a court sit- 
 ting twice a year and known as the sheriff's Tourn. To 
 that all the freemen were required to come since it held 
 what was called "the view of frankpledge". The sheriff 
 inquired whether every freeman was included in some bort or 
 
558 
 
 tithing, or whether there -were' those outside of such groups 
 and for whom no one was responsible. The court was evidently 
 the police court of the County. E^t in all these courts 
 there was the same difficulty of ascertaining the truth and 
 a consequent necessity of a usual resort to the ari^deal. 
 The very presence of that test ^ ows that where the facts 
 were in doubt there was no tribunal competent to determine 
 the truth except that of the Divine Omniscience, Probably, 
 these coxirts acted sometimes like a council of arbitration, 
 and expressed opinions and thereby settled a few contro- 
 versies, but even then they acted more or less on their own 
 knowledge. And yet, such as they were, they held the en- 
 tire original jurisdiction, and the king touched them only 
 in two ways. A conception of Crime had been reached. 
 There was not only the "wer" but the "wite": not only com- 
 pensation to the individual but a fine to the king which 
 he would be quite sure to collect. There was also recog- 
 nized the crime of Treason. The law against it is adi..itted 
 to have been .derived from the leasal magesta s of the 
 Roman system, a,nd is one of its products which was strong 
 enough to push itself into sight above the darkness and 
 corfusion of barbarian dooms and customs. It was natiiral 
 for the Saxon kings to protect their thrones and punish 
 rebellion not only by the sword but by the law, and, whai 
 
539 
 
 they found a known law of Treason with which the Britons 
 were already familiar, it was easy and natiiral to adopt 
 amd enforce it . 
 
 That the king was regaxded as the ultimate fountain 
 of justice, and was likely in the end to master and control 
 all judicial tribunals, is made evident by the fact that 
 appeals to his intervention grew so constant and so fre- 
 quent as to compel him to put some restraint upon them. 
 That is the plain piirport of one of the Dooms of Canute, 
 who decreed that no suitor should appeal to him until he 
 had failed to obtain justice at the hands of the local or 
 popular courts. When he did intervene it was by a message 
 or letter summoning the psirties before him, or withdrawing 
 a suit from the local tribunals, Mch naturally both identi- 
 fied the parties and described the chau:acter of the contro- 
 versy . Such a message or siaamons in writing easily ac- 
 quired the name of a writ, and its issue by the king's 
 chief secretary or Chancellor became the usual and then 
 the imperative method, and we are able to see the perfeoctly 
 natural beginning of that enormous system of writs which 
 became the essential of every action in the king's court, 
 and enveloped the #iole law in its multitudinous and compli- 
 cated folds. It reiiiinds us with an urgency hard to shake 
 off of the Roman formulary system. The two were like and 
 
ri-^o 
 
 yet unlifee, and perhaps it is safe to say that such re- 
 semblance as appears v/as rather/accidental and incidental, 
 growing not from a conscious imitation of a Roii^an proto- 
 type but from the way in which under the Saxon system the 
 king gradually drew to his court the whole litigation of 
 the realmt He had at first his Chancellor who was simply 
 his se.cretary and adviser to whom the preparation of the 
 writs was entrusted. Gome of them beceu-ie so common and 
 usual that the king directed their issue renerally, and 
 these becaiiie the writs v/hich issued of course, T/hile others 
 had to be specially manufacttred, and issued out of the 
 Chanciery only by being purchased anr^ sometimes at a very 
 high price. An abbot of St. Albans had to pay a hundred 
 pounds for a writ. On the criminal side the king gained 
 jurisdiction infill another way, which was an extension 
 of what was knovm as the Kings Peace. We learn its evolu- 
 tion mainly from one of Sir Frederic Pollock's Oxford 
 lectures. Everybody had a right known as their "mund" 
 which was the inviolate sanctity of the house and the house- 
 hold, a sanctity which has com.e -^wn to us in the maJEim, 
 that "every man's house is his castle." This "mund" had a 
 money value attached to it which the treerasser was obli- 
 gated to pay. E^'t the king's "mund" was the nost sacred 
 of alll It covered and enveloped his castle and all who 
 
541 
 
 were in it. One of Ire's dooms decrees that "wbxose^ fights 
 in the king's house be all his heritage forfeit , and be it 
 in the king's doom whether he have his life or not." Then 
 the "cing':: peace went to his officerp and servants though 
 not under his roof, then covered a radius about his castle 
 of three i;.iles and three furlongs and a fraction, then 
 protected those to whom his "hand peace" was specially ex- 
 tended, next was applied to the four Roman roads cutting 
 the kingdom north and south and east and west as being the 
 king's highways, then spread over all roads leading to his 
 castle, then to the rivers and harbors, then to those who 
 had agreed to a composition for a feud, and finally to the 
 whole body of the people. And so it came about that he 
 dre?r to his jurisdiction, under the naiue of Pleas of the 
 Grown, numerous offences of violence and disorder which in 
 the end Sitibraced all felonies, and which in every indict- 
 m.ent were invariably charged as having been -coiijiiitted 
 "age-inst the Peace of God and our lord the king." 
 
 We cannot tell what actions or rights of action pre- 
 vailed in the communal courts and were recognized by the 
 Bishop or 'Sheriff presiding, -^or those courts kept no re- 
 cords and what they did in that direction is hopelessly lost. 
 But in this Anglo-Saxon period there are traces of the 
 Roman noxal action. The peculiar .characteristic of that, 
 
543 
 
 as we have heretofore said, was that where the Liaster wae 
 sued for the tort of the slave he could himself escape by- 
 giving up the offender to the vengeance of the complainant, 
 fe have shown also how the notion was even older than Rome, 
 and extended itself to inanimate things occasioning an ac- 
 cident .Pollock and Maitland cite for us from the Sason 
 dooms a repetition of the old Asiatic rule that v;here a 
 tree falls on a mare and kills hiin his Icin may have it to 
 burn or cut if taken within thirty dpiys; and that where a 
 man's bea3t wounds another the owner iLight surrender the 
 beast and escape the usual money compensation. 
 
 This review of the Anglo-Saxon period shows, that 
 there was in existence no systeia of private lav/ which could 
 or did descend to the later days, unless it was so ivach of 
 the Civil Law as had Lfcr^n^ inwoven with the customs of the 
 Britons or was preserved in the Canons: but that there was 
 a procedure, growing, up and operating through the Icing on 
 the one hand, and through the ingrained independence of the 
 psople on th3 other, English in its form, Germanic in its 
 rudeness and crudeness, which ?rill resist any obvious con- 
 trol of a foreign law, but ^^ill ta.-::e from that what it needs 
 and mould it over so as to obscure -'/hat it tahes. The 
 ablest champions of the originality of the common lavi' ad:::Jt 
 that "it is by popish clergyinen that our English conr.on 
 law is converted iroru a rude mass of customs into an 
 
545 
 
 articulate system, and when the popish clergymen, yielding 
 at length to the Pope's commands, no longer sit as the 
 principal justices of the king's court the golden age of 
 the common law is over." In this tfery truthful and accurate 
 statement is involved the underlying adL^ission that to 
 the influence of the canonist, bred in the doctrines of 
 the Civil law and cnsstantly weaving it into the formative 
 web of the common law, was largely due the merit and ex- 
 cellence of the latter. The historians add, however, some- 
 thing in the nature of a limiting explanation* They eay 
 "our English law sho?fs itself strong enough to assimilate 
 foreign materials, to convert them to its own use." That 
 is a good worci — "assimilate". It espresses the cictual and 
 substantial truth, so far as ^ve are able to discern it in 
 the darkness and CLnxusion surrounuing. It is broad 
 enough and elastic enough to cover fairly the historical 
 situation. It implies that the English legislators and 
 fudges did not adopt bodily and completely and exclusively 
 any part of the Civil law. The people hated the Pope and 
 the lawyers were Jealous of the canonist. But Taeither 
 people nor lawyers were blind to the genivis and learning of 
 pome. In building up their own syste.;. they took from the 
 Civil la^v vrhatever seemed good and useful and fit for the 
 needs of the time, but they took it after the old SaKon 
 
545 
 
 fashion as booty and spoil. The corn went into better 
 granaries, and the cattle were new-branded. What was taken 
 from the Roraan doctrine or jrocediire was moulded and ehaped 
 to English needs and -ways with that free hand and free thought 
 which had drifted down to theii ixowi the Gerii.an forests. 
 In that manner they "aBsiiiiilated" luost of the doctrines of 
 the Civil lav^-. It is a good Y/ord: it ue^y very ?;ell serve 
 to end the dispute. 
 
m 
 
 545 
 
 X7II. 
 
 FEUDALISM. 
 
 The inquiry has been suggested what would have 
 happened to the English law if the Saxon Harold had won 
 the battle of Hastings and driven Duke Willifta into the 
 sea; for, with the victorious advent of the latter, came 
 a feudal land law more definite sind severe than €uiy before 
 known, and which in large degree dictated and moulded the 
 law of the nation. But we may not delay to guess about 
 it, and our study should be limited to the events which actu^ 
 ally occurred, for it is William the Conqueror who sits 
 on the throne of England, and more or less is likely to 
 shape its laws . We must know something about him to inters 
 pret his action correctly and understand the changes which 
 began with his reign. 
 
 As the Saxon tried to stamp out the Roman law, 4^ 
 did the Norman in turn try to supplant the Saxon? We 
 may believe he did not for two reasons: first, because, 
 b o oauee ha had very little law at home of any kind, still 
 less of that worth bringing across the channel; and, second, 
 because the law that he found suited his royalty better 
 than that which he left behind. The truth of this will be 
 
546 
 
 quite plain if we examine the laws whpch he did make by hie 
 own direct action, fhey were few in number. One of then, 
 which required every freeman to take an oath of fealty to 
 the king, was rather of a political character, and served 
 to lessen the independent and rival control of his Barons 
 over their vassals, and yet operated to modify hhe working 
 of the feudal law. Another served to draw the line between 
 the spirit\ial and secular courts by proj^ibiting the bishop 
 from trying ecclesiastical causes while sitting in the court 
 of the hundred or the shire. This separation of the two 
 jurisdictions had very grave results, for it led to a clash 
 and rivalry between them, which spurred both to activity 
 and bred new law out of new collisions. Two other of 
 William«s laws had respect to the general order, and the 
 safety of his followers. He spread his Peace over English 
 as well as Hermans, and specially protected the latter 
 from assassins by imposing a fine of forty^-six marks upon 
 the slayer's hundred if it did not detect and produce him; 
 and the dead man was presumed to be French unless he was 
 proved to have been English, Two other laws were but re- 
 petitions of what already existed. It was decreed that 
 every freeman should have pledges bound to produce him in 
 court, and that cattle should be sold only in towns and be- 
 fore witnesses. Finally the king forbade capital punishment. 
 
547 
 
 but substituted a mutilation which was really worse and 
 more -eSeeei'* Such was the stoiretance of William's direct 
 action, and it is very fax from being an attack upon or 
 supplanting of the laws of his new kingdom. 
 
 But he did bring with him two laws and a lawyer, and 
 each left a decided impress upon the English procedure. 
 He brought with him trial by battle, and the Inquest which 
 grew into the jury, and also Lanfranc as hie adviser and 
 chancellor. The Duke and his followers were born fighters, 
 trained up to war, deeming no occupation honorable but 
 war, and inclined to submit every dispute to the arbitra- 
 ment of the sword. They regarded the Ordeal as an unmanly 
 and unseemly mode of ascertaining the Divine judgment, and 
 were prompt to substitute for it the single con bat, in the 
 confide noB that the Deity would give victory to him who 
 championed the right. There was no change in the underlying 
 principle. The difficulty still was that no method of 
 reaching the truth was obvious, except a submission to 
 the Divine wisdom; and the belief remained that the Deity 
 would always intervene to protect the right and overwhelm 
 the wrong. There was about the substituted remedy some- 
 thing more than a trace of the old barbarian habit of self- 
 help, of righting a wrong by the violence ^ich took the 
 law into its own hands, of fighting an adversary with the 
 vigor and revenge of a declared and lasting feud. And yet 
 
548 
 
 the trial by battle was reduced to an orderly conflict and 
 a regular legal procedure. Judicial officers presided over 
 it and the law stood by it and gave it order and dignity. 
 It was used in three cases: in the court martial or court 
 of chivalry where it was the prototype of the modern duel; 
 in appeals of felony; and upon issue joined in a writ of 
 right. The last involved the question of the absolute 
 title to lauad instead of a mere dispute over the posses- 
 sion. In the writ of right the tenant challenged offe^rs to 
 prove his title by the body of his ciiampion, and throws 
 down his glove as a gage or pledge, and so wages his bat- 
 tle, while the plaintiff taking it up stipulates his accept- 
 ance of the test. A place sixty feet square is then marked 
 out and enclosed by lists, and on one side are seats for 
 the judges of the common pleas, who attend in their scarlet 
 robes and gravely watch the encounter. The court opens 
 at sunrise, for the fight must end in the daylight and euaple 
 time be given. The combatants enter the lists. The tenant 
 takes the claimant by the hand and swears that the lands 
 are his own, and the latter in like form swears to the con- 
 trary, and then both take the oath which Coke in his Insti- 
 tutes sets out thus; "Hear this you Judges that I have this 
 day neither eat nor drunk nor have upon me either stone ne 
 grasse nor any enchantment sorcery or witchcraft where 
 
549 
 
 inleaeed 
 through the power of the word of God might be ±kkzkssci& or 
 
 diminished and the Devil's power ixxzaxxKol iKJtBSXEJixBZ 
 increased, and that my appeal is true so held me God and the 
 Biints." Three banns are proclaimed, that all relatione of 
 both sides should retire, that the crowd looking on should be 
 silent, and that no assistance should be rendered to either 
 party. A chosen police guard the lists and prevent inter- 
 ference. The champions are armed with batons or clubs and 
 fight till the stars come out unless one is killed or cries 
 craven. In the last event he not only loses the land for 
 his principal but becomes himself infamous as having sworn 
 to a lie. If the defendant's champion holds out till the 
 stars appear the victory is his, even though he has the 
 worst of the bruising. The scene reminds us of the brutality 
 of a prdze fight, and it is difficult to i. imagine grave 
 Judges presiding over it. In the court of chivalry the 
 weapons were the sword and lance, and in an appeal of 
 felony no champions were allowed but the accuser and accused 
 fought it out in person. Let us pause a moment over the 
 word, appeal. We must diveet ourselves of all the modern 
 notions of an appeal when we find tht word in the semi- 
 barbarous atmosphere of the Norman law. It means there 
 siBply a challenge or accusation. Such a mode of settling 
 
550 
 
 a/ judicial controversy has nothing as yet which can descend 
 to the coiumon law proce4}ire, biil^, absurd as it was^ it 
 managed to maintain its hold with singular persistence 
 until the last century. At Easter Term of the Kings Bench 
 in 1818 and the 58th year of the reign of that George 
 the Third with whom we had a little quarrel, there came for 
 decision the case of Ashford v Thornton which was an appeal 
 of murder and in which the prisoner, the appellee, elected 
 to defend himself by battle. The appellant, Trtio was a 
 relative of the murdered girl and the private prosecutor, 
 declined to taie up the gage, insisting that where the 
 facts clearly showed the guilt of the accused he could not 
 wage his battle but must plead. The court held that the 
 prisoner had that election because the facts were in doubt, 
 and his chgJ.lenge having been refused he was entitled to be 
 discheorged. Lord Ellenborough said, "Whatever prejudices 
 may justly exist against this mode of trial, still, as it 
 is the law of the land, the court must pronounce judgment 
 for it." Elsewhere he spoke of it as the constitutional 
 mode of trial, and it is worthvof note that the whole argu- 
 ment and authority upon ib ich the court acted was derived 
 frqstt Bract on. The case is reported in 1st of Barn and Aid 
 at page 405, and it was the last of the series since the 
 next year, by act of parliament, the barbarous procedure was 
 wholly abrogated. But before its destruction it developed 
 
551 
 
 into a form which vi&ilatecl a fundamental rule of the English 
 law and worked an intolerable injustice. The trial by- 
 battle in its origin was a form of Self-help born of a state 
 of society in whiieih no other remedy for the wrong existed. 
 In the case of a murder there was no prosecution by the 
 public authorities, and the crime went unpunished unless 
 the family or clan of the deceased furnished an avenger. 
 That intervention received assent and some degree of regula- 
 tion at the hands of the State, as we have already seen, 
 and became what was known as the appeal of mxirder. It re- 
 quired only the formal aacusation of the avenger which cul- 
 minated in a challenge summoning the accused to a battle. 
 The latter was thus compelled to confess or fight, and if 
 he was defeated, in the battle but survived was promptly 
 hung as a duty due to the Divine decision. Even the king 
 could not pardon him for the State was no party to the pure- 
 ly private controversy. But the situation became complicated 
 when the State at last intervened, and the murder as a private 
 trespass developed into a public crime. There arose at 
 once the double remedy of a trial by a jury and an attack 
 by the avenger. The two remedies were harnionized at firtt 
 by postponing the public prosecution for a year and a day 
 during which interval the private appeal might be prosecuted, 
 and which in that event barred the public remedy utterly. 
 
552 
 
 but the private prosecutor could of course take a 
 composition instead of his revenge and so unpunished murders 
 became deaigerously frequent. The rich man could kill his 
 ehemy if he thought the gratification of his hatred was 
 worth the money it would cost. To avoid this evil result 
 it was ordained by Henry YII that the saieged felon could 
 be indicted and tried at once without the year's delay with 
 the consequence that even if acquitted by the jury he re- 
 mained still exposed to the appeal of private vengeance, 
 and so, in bold violation of the maxim of the law, was twice 
 
 put in jeopardy for one and the same offense . It seems 
 to us not a little strange that Blackstone could describe 
 the situation with a silent disregard of its enormity. 
 The case furnishes for us a practical illustration of that 
 collision of Roman law with German custom of which we have 
 spoken and indicates the resultant consequences to each. 
 The trial before a magistrate and the judex or recupuratores 
 was at the suit of the public and of Roman origin: the battle 
 of the clubs a Germanic custom. As they came into collision 
 the former was destroyed and the latter prevailed: then both 
 ruled side by side with new consequences of evil, and last 
 the bputal custom made way for the better solution pre- 
 scriUEed by the Civil law, though carrying with it some marks 
 and traces of the ended ODOllSsjJion. 
 
555 
 
 Let us observe also how the battle clung to the 
 archaic customs #iich we have found prevailing so uniformly 
 and in so many direotions. The very form and substance of 
 the remedy implied a private prosecutor maintaining the 
 accusation, and not at all the State or the Public vindicat- 
 ing its order and justice. That party was either the person 
 wronged seeking to inflict some measure of retaliation, or, 
 if dead, then one of his kin pursuing the vengeance of the 
 old blood-feud under the forms and shelter of the law, but 
 perilling his own life to get a return blow at the life of 
 the slayer. It is the old barbaric notion, a little regula- 
 ted, not quite so rough and reckless, but very far away from 
 and not at all the germ of the trial by jury yet to come. 
 
 This judicial combat was one of the things which 
 crossed the channel with William. Another was the inquest 
 for the discovery or determination of facts by the oaths 
 of men sworn for that piirpose j- -inquisit&o, — and inquisition, 
 which yet hangs about our law in what we have not ceased to 
 call the inquisition de lunatico inquirendo by ^ich a 
 question of sanity is determined by sworn jurors. The 
 custom existed in Normandy, and was there used at first as 
 an administrative measure, and in that form and for that 
 original purpose began its career in Britain. Where the 
 Normans got it is not so certain. The German scholars 
 
554 
 
 have traced it back to the Reman Fiscus, and to a procesB 
 by which the Imperial treasury ascertained the basis of 
 taxation and the property which should besu: the burdens of 
 the State, and probably such was its remote origin. But, 
 however that may be, it had a firm hold on Normandy. A 
 royal power that was vigorous and ful?. of needs back of its 
 aastivity could not endure slow ways of supplying its treasury, 
 or recovering its domains, or determining the status of its 
 subjects. The communal courts were ill fitted to try such 
 Questions and quite likely to delay or disappoint the 
 hungry king. They could not compel an oathj they could only 
 peamit onej and nothing short of the royal power was com- 
 petent to that end. And so it hapjicined that the Frankish 
 kings began to ascertain the facts upon i^ich taxes were to 
 be laid, and services exa(Eted, and personal status fixed, 
 by sunmoning a number of members of the community, having 
 knowledge in the premises, to euiswer under oath to the 
 questions put. Only the crown was strong enough to compel 
 them to attend and take the promissory oath; and this great 
 reform, out of which the English jury grew, was thus the 
 work of the King and not of the People, though, as we^ shall 
 see, the latter gave it a decided trend, and clrmg to it as 
 a defense of their liberties. It is not easy to trace its 
 operation during William ^s reign, but we see it in full 
 
555 
 
 force in the famous Domesday book \Rtoich was a record of the 
 property of the kingdom foiuided upon the verdicts of sworn 
 inquests. Falgrave quotes a Saxon chronicler as saying that 
 not even an ox or a cow or a swine escaped the omniverous 
 xaaw of that record. The work was done by the king's com- 
 missioners, and they necessarily struck upon all sorts of 
 questions. Who owned the land, with what services it was 
 charged, the true relation of lord and tenant, came con- 
 stantly in doubt or dispute, and the truth was reccorded 
 ■U5)0n the answers of sworn reconitors. These men were not 
 SSti, all compurgators. They endorsed nobody's oath; they were 
 not selected and produced by the litigating parties. On 
 the contrary they were persons who knew either from their 
 own knowledge or fj^rom family tradition the general facts 
 inquired about, and were sworn to answer truthfully the 
 questions/ pu^-. Professor Thayer cites from the Anglo- 
 Norman Flacita special cases in ^ich the recognition was 
 used in the County court, the recognitors answering as to 
 the fact, and the body of the assembly rendering judgment 
 as Doomsmen. It is not, however, till the reign of the 
 second Henry and throiighthe work of Glaovil that we begin 
 to see the procedure clearly defined in its application 
 to judicial proceedings. In that direction it spread 
 naturally but not easily, nen who had long held the right 
 
556 
 
 to wage their law by the purgation of witnesses chosen by 
 themselves, or to demand a personal combat which relieved 
 their temper and indulged their revenge, were not much 
 disposed to see their rights determined by the verdict of 
 jurors selected by the king. At hhis period royalty has been 
 obliged to form its own court and man it with justices and 
 a chief justiciar. They act upon the king's xxx writ, and 
 soon begin their journeys in eyre, and do their work largely 
 by the assize and the recognition. Pause a moment upon 
 that word "assize." It is to beccme the dominant word of 
 the forming procedure, but has had very different meanings, 
 and has been used so loosely as often to blind investiga- 
 tion. Soijiewhere there geew up a list of six or seven inter- 
 pretations, but two of them became common and were, first, 
 the assembly or co\u:t of the new jurisdiction, and, second, 
 the trial at that court by means of sworn recognitors. It 
 is in that mixed or double meaning that we must use it 
 hereafter, although it assumed a distinct importance only 
 at about the age of Glai;tvil. 
 
 But with William came Lanfranc, learned as a lawyer 
 and civilian, who became the adviser and counsellor of the 
 king and his guide in all important emergencies. The bishopri; 
 of Canterbury was conferred i^jon him , and to that ecclesias- 
 ticad primacy was soon added the office of Chief Justiciar. 
 
557 
 
 Versed in the Roman and the Canon law, it was impoeeible for 
 him not to feel its influence and carry its doctrine into 
 the formative stages of the law growing up about him. We 
 are thus able to see in Britain what by a rude figure was 
 described as a cross sea. There was the Roman law as held 
 and remembered by the cemonists and studied by the ecclesias- 
 tics, and certain to be somewhat applied by the bishops who 
 presided in the county courts; there was the Prankish law 
 t<0 which the king and his followers were accustomed; euid Ikasr 
 there was the Saxon law supposed to have been formulated by 
 Edward the Confessor, and for which the people manifested 
 a strong preference, — not so much for any merit in it, — ^for 
 it was largely a myth, — as from their dislike to what they 
 regarded as a foreign legislation. Parallel with this con- 
 fusion was the ri"^ra.lry of three languages; the Latin which 
 was the tongue of the ecclesiastics and of all who possessed 
 any learning; the Morman French to which the invaders clung; 
 and the AngloSaxon which grew into English. The Latin at 
 first had possession of the court-rolls and of the law books, 
 but was slowly crowded out by the French, which finally 
 gave way to the -Piglish, while the traces of the conflict 
 are foimd everwhere in the common law upon iRfcose pages yet 
 appear the Latin maxims and the Franco-Norman nomenclature, 
 like flood-wood left upon a beach after a storm. How persist- 
 
558 
 
 ent and how jl material the struggle was is indicated for us 
 as late as 1770 and in the tiiie of Lord Mansfield. In the 
 case of Bigby v Kennedy , (5 Burrows 2645), which was an 
 appeal of death brought by the widow of the murdered man, 
 one of the questions quarrelled about was in what language 
 the appeal should be arraigned, whether in Law-French and 
 in Latin, or in French and then in English. The produccfc of 
 such contending forces must necessarily be a compound of them 
 all, and the prevailing element very difficult to discern i^i. 
 or discover- We have no real chance to know tintil some 
 writer of the time, with both capacity and opportunity, 
 essays to put the law into a system, and writes it out for 
 us as understood and practised at the time. Such a man was 
 Glanvil whose work has come down to us. He liyed in the 
 time of Henry the Second, and about 1180 was made Chief 
 Justiciar of 8lL1 England. His contemporaries say of him 
 that by his wisdom were founded the written laws of England. 
 The Chief Justiciar presided in the Curia regis like the king, 
 and in the latter 's absence beyond seas governed the realm 
 as a viceroy. Surely here is f( man who knows such law as 
 there is, and will set it down for us fully and accurately. 
 But the question has been raised whether the work which bears 
 his name is really his. The self praise of the title page 
 it is said is such as he would not have written. That is a 
 
559 
 
 guess forSided on modern taste. Hone of the higher classes in 
 the Saxon days were over-modest. But that title page 'does not 
 ascribe the work to him. It says only "composed while that 
 illustrious man, Ranulf Glauvil held the helm of Justice.* 
 That certainly is odd. It names no author, A guess has 
 been ventured that the book was prepared by some ecclesiastics 
 under him, and the supposition is claimed to have gained 
 strength from the constant official occupations of Blauvil, 
 leaving him neither time nor disposition for literary pur« 
 suits. He was a fighter as well as a Judge and died fight-\. 
 ing i. the Moslem at the siege of Adire. But it is the busiest 
 man who always has the most time: and Glauvil 's jTidicial 
 study would naturally lead him to write out the law which 
 he daily defined and enforced, even for his own purposes. 
 At all events, if some one else was the actual scribe, we 
 may be very sure that he furnished the material and dictated 
 and approved the work. What then does this first and earliest 
 pf our general law books tell us? Of course we must deal 
 with it only in brief touches aaid compacting the study of 
 days into a few swift sentences. 
 
 We o^erve, first, that the whole work is in the 
 main one of procedure: describing what remedies exist and 
 how they are to be pursued: and that fundamental legal 
 doctrines are either assumed or betray themselves incidentally 
 
560 
 
 through the forms discussed. We observe, second, that at 
 the bottom of all remedies in the King's Court lies the 
 King's Wirt, and the theory that royalty is the sole ultimate 
 fountain of justice; asserting a boundless jurisdiction, quite 
 sure in the end to have limitations put upon it. These 
 writs are framed to suit the emergency of a present occa- 
 sion, so state the names of the parties and the question 
 or issue to be determined. They remind us of the Praetor's 
 formula, and still more when we come to observe that they 
 are continually answered or repelled by what are openly 
 called ^Kseptiones . There, after the manner and the model 
 of the Roman except io , are pleas of some affirmative de- 
 fence or to the jurisdiction. They grew to be very common 
 in the four petty assiBi^es to which we shall soon refer , 
 and the English lawyers adopted them so universally and 
 gave them such wide range as to make even Pollock and Mait- 
 land say that one might think they were "drunk with the 
 wine of Romanism." But while they borrowed the idea they 
 worked it out and carried it on in a distinctively English 
 fashion by which the except io became a special plea, and 
 a system of pleading was evolved unlike anything on the 
 face of the earth, and which tied justice up in knots and 
 tangles almost inextricable. Since these writs sure the 
 warrants upon which the court acts, and the sole measure 
 and basis of its jurisdiction, they must be carefully 
 framed and chosen and any mistake or insufficiency will 
 
561 
 
 be fatal, as it was in the formulary system at Rome. 
 
 The first of these writs discussed toy Glaufil is 
 the writ of right, designed to test the absolute title to 
 land as distinguished from the mere seisin, or possession; 
 again reminding us of the Roman distinction between the 
 Qiiiritary dominion and the Bonitary possession. He gives 
 the form of one thus; "The King to the Sheriff. Health. 
 Command A. that without delay he render to B one hyde of 
 land in such a vill of which the said B complains that 
 the aforesaid A. hath deforced him; and unless he does 
 so, summon him by good summoners that he be there before 
 me or my Justices on the morrow after octabas clausi Paecheie 
 at such a place to show wherefore he has failed, and 
 have there the summoners and this writ." The paper took 
 the form of an order to show cause: give up the land or 
 show cause for the refusal. When the parties get before 
 the court very much learning is expended upon what axe 
 called "essoins" which are excuses for postponements or 
 delay, and they are regulated with a painful minuteness of 
 detail both as to their quality and number. But when the 
 issue is at last reached we discover how grave a change 
 has ccme over the law, for, instead of the fire and water 
 of the ordeal, or the shock of the founding clubs, there is 
 possible an appeal to the assize, or the trial of the facts 
 
562 
 
 by the oaths of sworn /recognitors. The choice is the 
 privilege of the defendant, but once made is final. The 
 Grand Assize is desoribed by Glauvil in strong terms of 
 eulogy as "a certain royal benefit bestowed upon the 
 people and emanating from the clemency of the prince with 
 the advice of his nobles." When the tenant had elected that 
 mode of trial another writ issued, and that of a momentous 
 character, for it asserted the dominance of the king's court 
 over the communaLL tribunals, and was a writ of Prohibition 
 which forbade a trial of the same issue in the county court, 
 where y secta or suit on the part of the demandant would 
 be met by compurgatory oaths on the part of the tenant, 
 because the tenant had put himself on the grand assize : 
 and then another w3rtt issued through which we see the out- 
 lines of the coming trial by jury. The sheriff is told 
 to summon four lawful knights of the vicinage to come be- 
 fore the court at Westminster then and there to elect on 
 their oaths twelve lawful knights of the vicinage who better 
 know the truth to determine the controversy. As yet there 
 were no witnesses beyond the recognitors themselves, but ck 
 was a long stride from the folly of the ordeal and the 
 absurdity of the compurgation and the brutality of the 
 battle to the verdict of twelve men of the vicinage, selected 
 under oath for their knowledge of the facts, and sworn to 
 
563 
 
 decide the truth. Glauvil applies the same procedure to a 
 controversy over an advowson, or the right of presentation 
 to a church, and in doing that develops two things: first, 
 the character of an advowson as a puoperty right, and, second, 
 the contest for jurisdiction between the secular and ecclesi- 
 astic courts; a contest ^ichsaved the existence of the 
 former, while yet its bitterness bred opposition to the 
 Roman law as being the favorite and preference of their 
 rival. When the question is simply between the Parson and 
 the ft Patron the Bishop's court kept the jurisdiction, 
 but when the contest is between two Patrons, each claiming 
 the exclusive right of presentation, the king's court as- 
 serted jurisdiction as involving a property right rather 
 than a religious question. Similso: collisions occurred 
 between the king's court and the county court over questions 
 of status where the villenage or serfdom of a mem was contro- 
 If the sole question is between two claiming owners who 
 has a better right to the villein , admitted to be such, 
 the plea may proceed before the sheriff, but if the villein 
 denies his villenage and claims to be a freeman a writ issues 
 out of the king's court, and the question is tried by an 
 assize, and no duel is pesnitted. Glauvil then points 
 out how a villein may be enfranchised and defend his liberty 
 when acquired, and soon turns to Dower and its admeasurement. 
 
564 
 
 an estate iwhich originated in the persistent regard of the 
 Church for the wife , and even in Rome was secured by a 
 promise at the Church door, but which at common law and by 
 custom took four other forms that seem to us thoroughly 
 English and not at all Roman.. Then follows a discussion 
 of inheritance, of devise, and of gifts causa mortis , 
 which introduce all the peculiarities of the Feudal System, 
 sure to block our way and demand some serious consideration. 
 In his eighth book Glaavil describes Fines which at that 
 date were real compositions of actual suits, made matter 
 of record, and by which the parties were absolutely bound, 
 but which later became a fictitious mode of cutting off an 
 entail. His tenth boo^ is of even greater interest for it 
 enters upon the broad subjects of bailment and contract and 
 debt uriaich cover the great mass of business relations, and i 
 furnish the principal doctrines of the common law. And here 
 it becomes obvious that the reservoir drawn upon is the 
 Civil law. At once we find the mutuum . the commodatum 
 and the other Roman divisions of Bailment, identical in 
 names and definitions, and nowhere seriously changed, if 
 sometimes lacking in the doctrines attending them. Very 
 little however is said about Bailment itself, and almost 
 nothing about excuses for a failure to return the property 
 bailed, — ^probably for the reason that no excuses of any sort 
 were admissible. Incidentally it is said in case of a 
 
565 
 
 Pledge that the Pledgee is bound to keep the property safely 
 and not use it so as to render it of less value, but nothing 
 about the degree of care requisite; an omission never thor- 
 oughly repaired till our own Story went back to the original 
 fountain. Indeed the hard rule of the early law seems to 
 be indicated by the statement that the creditor is decided- 
 ly bound either to restore the thing pledged or make satis- 
 faction for it or lose his debt. A gratuitous loan follows 
 the definition suid the doctrine of Justinian, but xgzx 
 again without any ddscussion of degrees of care, ^ext 
 Glauvil considers the case of a Purchase and Sale, and once 
 more it is the Romem rule that is adopted, with the same 
 warranty of title and provision for an agreed warranty of 
 quality. Then the text speaks of a Letting and a Hiring, 
 simply defining it sifter the Roman fashion, and closing 
 the short discussion with these words: "We briefly pass 
 over the foregoing contracts arising as they do from the 
 consent of prcjvate individuals because , as it has already 
 been observed, the king's court does not usually take cog- 
 nizance of them." Thus it would seem that they were mainly 
 left to the ijurisdiction of the communal or ecclesiastical 
 courts where the influence of the Bishop would be very 
 likely to rest upon the authority of the civilians or the 
 canons. Glauvil, after speaking of attorneys in fact, turns 
 
566 
 
 neat to a large and serious consideration of certain writs 
 relating to the possession of land, which compel us for their 
 adequate understanding to take some general view of the 
 operation of the Feixdal System, 
 
 Very little of the English land remained allodial. 
 Almost all of it had becsome feudal, and the theory grew 
 up that every acre was held, mediately or immediately of 
 the king. The Conqueror had largely peu-celled it out to 
 his followers, imposing lapon them as the condition of the 
 Homage, or the oath of Fealty, military services or other 
 burdens. To these had been added for similar disposition 
 a multitude of forfeitures resulting often from unsuccess- 
 ful efforts at rebellion, and large domains acquired through 
 the process of Commendation. In those rough and fighting 
 
 days the man without a lord to whom he could turn for pro- 
 was 
 tect ion/deemed a vagabond and certain to be abused and robbed, 
 
 and found it profitable to surrender his leuid to the beer-. 
 
 drinker at the castle, sCLways armed and ready to strike, 
 
 and take it back upon a feudal tenure. This tenure had a 
 
 history behind it and was not altogether and wholly a 
 
 novelty . It had its germs in at least a double direction. 
 
 The Roman theory of the ager publicus gave it origin, and 
 
 the relation of Patron and Client was in truth a relation 
 
 of lord and vassal. The latter owed fealty and the former 
 
567 
 
 protection. The Client seryed his master, followed him to 
 the war or fought for him in the Sedition, contributed to 
 his ransom if held as a prisoner, to the expenses of his 
 daughter's marriage and the payment of his debts: while the 
 Patron, having his villa and its surrounding domain, assigned 
 lands to his vassal for cultivation, so many jugera for so 
 much annual corn or wine, making of his estate something 
 very -like a manor. Indeed the best authorities assert that 
 the Roman Precabrium was one of the germs of the feudal 
 tenure. But there were similar phenomena among the Ger- 
 mans. The Comes or Counts, the military companions and 
 intimates of the king, belonging to no Hundred and having 
 no alod, and at first holding serviie and menial positions 
 in the ruyal household, very soon began to fatten on the fond^ 
 ness of the master with whom they fought and revelled, and 
 had from him gifts of land on condition of military service 
 and convenient aids. From both these sources, as suggestion 
 and example, the system grew, and the English soil in the 
 hands of a Conqueror was ac3mirably suited to foster that 
 growth. All over the island appeared the manor with its 
 castle and central hall and vassal retainers, serving as 
 the center of the barony, governed by the feudal Chief 
 who, owing homage to the king as lord paramount, let out 
 his lands to his knights and villeins upon conditions of 
 
568 
 
 service more or less onerous. T^at was the typical manor 
 which always lingers in our thought, but there were numerous 
 others very small, sometimes no larger than a farm, often 
 made up of scattered lands or justiciary rights, so far 
 apart that one wonders what explosive blew them into such 
 fragments. The knight's was a military fee, conditioned 
 upon service with the host when the king's trtJimpet should 
 sound. The ceorls or villeins held a free socage on the 
 one hand or a villenage on the other whose conditions sup- 
 plied the wants of the baronial hall. Among such a retinae 
 of the castle lord there were sure to come desperate QT;iarrele, 
 conflicting claims, and acts of violence. The Baron was 
 the natural arbitrator, and interested to secure peace among 
 his 2»wn, the better to carry war to his neighbors. How 
 he gained the right to judge his vassals is a veasy dark 
 problem. Sometimes it was expressly granted by the king, 
 but was constantly exercised without any such grant behind 
 it, though Coke says that was always its source and origin. 
 At all events, the Baron organized and held his own 
 court. It was known first as the hail-mote, and became in 
 the end the Court Baron. Its jurisdiction was denoted by 
 Saxon words which sound to us very odd. It had "sac and 
 soc", which meant the privilege of determining suits among 
 the tenants: it had "tal", that is a license or customary 
 
569 
 
 fee from those who ceaae to buy and sell within the manor: 
 it had "theam" which meant the right to the perquisites of 
 the lord when warranty was pleaded: it had "infangenetheof " 
 and "urfangenetheof", or the right of trying the thief within 
 the manor, or the stranger who stole within its jurisdiction. 
 At first the feud was undoubtedly given for life, and on 
 the death of the tenant reverted at once to the lord who 
 could give it overr again. The ciaim of the dead man^s 
 eldest son would always be strong and in general be heeded, 
 auid soon the estate was made hereditary. That was done in 
 the time of William, and thenceforward a multitude of con- 
 sequences followed which served to complicate the title to 
 feudal land. There were originally three conditions of 
 tenure so uniformly attached as to have acquired the name 
 of the " trinodas necessitas ". and characterized the system 
 even among the Saxons. These were the military service, 
 and aid in repairing castles, and in building bridges. 
 But beyond these there were burdens upon the tenant which 
 put him very much at the mercy of his lord. There was 
 the Saxon "heriot" which the lord coulfl take, as the best 
 beast or the arnor of his dead vassal: there waS the ward- 
 ship which gave to the lord the custody of the heir during 
 his minority and the possession of his land, with this only 
 grace to the poor boy that the intruding guardian should 
 
570 
 
 give him reasonable support and not comniit waste : there 
 was the right to give or withhold consent to a marriage 
 which meant, of course, that the consent had to be pur- 
 chased, if not outright, at least by costly gifts; there 
 was the relief which the heir paid on coming of age and 
 entering into possession of his land: there was the escheat 
 by which on failure of legitimate heirs the estate reverted, 
 and numerous causes of forfeiture which the lord was certain 
 never to overlook: and there were the aids which the tenant 
 was expected to give when the Baron's son and heir was made 
 a knight and the idle upstart put on his spurs: when my lady, 
 his daughter, was married, requiring at least four horses 
 to get her to the church; and when the castle treasury was 
 empty and its bankrupt master was annoyed by the odd impert- 
 inence of pepple who actiially wanted their pay. We see how 
 many veins were opened in the tenant's estate, and the 
 problem seemed to be how near it could be bled to death and 
 yet survive. The military tenure was known as the knight's 
 fee, and its incidents as the knight's service, but a more 
 independent, if less honorable, tenure was that of socage, 
 called a free or frank tenure, and which was the holding 
 of a free husbandman not bound to follow to the wars, whose 
 reliefs were fixed at one year's value of the land, and who, 
 during minority, was in the custody of his own relations. 
 
571 
 
 But even he, if T7e may trust Coke's archaic knowledge, was 
 bound' to give aid to the lord for his eon^s knighthood or 
 his daughter's marriage. 
 
 Between these two, and quite difficult to define 
 was the tenure of Serjeantry, Grand and Petit; of which 
 the first seems to have been conditioned upon the rendition 
 of a wide range of menial services, made jjpnorable by the 
 dignity of the parties. We are told how one Joim Wiltshire 
 held lands by the servlcoe of holding a towel when the king 
 washed his hands at the coronation, and how the service of 
 another was to hold his glove, and of a third to carry his 
 .majesty's gold spurs when he came to be crowned. And then 
 there was the petit serjeantry which required the tenant 
 annually to give to the king a sword or lance , arrows or a 
 dagger , or sane other "small things belonging to wars." 
 But the inheritable quality of the feudal estCite 
 brought with it the consequence of primogeniture . We have 
 seen that tendency, djm and shadowy, and seldom reaching 
 the complete fact, in many races and among most of the 
 archaic systems. Now the blurred outline becomes distincl^. 
 It grew to be the rule of English descent, except that with 
 a singular persistence the custon of gavelkind, localized 
 in Kent, preserved the Saxon inheritance and divided the 
 estate among all the children. It is obvious that Juais 
 preference of the eldest son was not at all the product of 
 
 a sentiment, although perhaps colored by it 5 it came on 
 
573 
 
 the part of the lord from dislike to the partibility of 
 estates. It was his interest to keep them whole sund solid. 
 In the case of a military feud there must be some one to 
 whom the Baron can look, and on whom Jfhe can depend for the 
 stipulated aid in his wars, and, to have that service divided 
 up among steadily increasing mamhers with all the attendant 
 disputes, was a trouble not to be endured. At first, it is 
 probable, that whence the inheritance was partible £unong the 
 children the lord chose out one of the sons to render 
 homage and be responsible for the service due, and the one 
 selected was quite naturally the eldest son who thereby 
 acquired a sort of preference over his brothers. In the 
 end, the military estate and that in serjeantry went to the 
 eldest son as a whole and undivided, and descended regular- 
 ly in the male line. Still it was possible for the tenant 
 to alienate the land in his lifetime and defeat the con« 
 venience of the lord and the heir's expectation, and so 
 there came a certain amount of restraint upon alienation, 
 A great number of charters, as deeds were early denominated, 
 have been preserved in which the consent of the lord was 
 added to the tenant's grant as essential to its validity, 
 and others in which the consent of those who would be the 
 (tranter's heirs in case of his death was added. Obviously 
 there was more or less of restraint in each direction. 
 
575 
 
 How this happened, and the route by which it came, 
 axe matters gravely disputed. If we follow Coke we shall 
 steFt with the idea that land, or rather the possession of 
 land, was in theory freely transferable, and restraints 
 were outcome of successive needs slowly unfolding them- 
 selves. That seems the best, because the most natural, 
 supposition. And yet we should not assume that such trans- 
 fers were common at the outset or the acts of individiaal 
 
 owners. There was no one either desirous or able to buy 
 
 sell. 
 land, and no one wanted to i§^. In the main Death was 
 
 the only conveyancer, and the Father ts laind went, by a sort 
 
 of family right, to his children or those of his blood. 
 
 How that group was constituted for piirposes of succession 
 
 it is hard to say- It varied so widely and was so loose 
 
 in its framework as to make impossible any rule of general 
 
 application! We need not expect to bring it within the range 
 
 of anything like legal order or logic. But it is easy to 
 
 see two things developing out of the confusion, one, that 
 
 since the Father or Chief had neither motive nor chance to 
 
 sell, the children in his lifetime would expect to take it 
 
 at his death , and feel a right in it which would be likely 
 
 to survive when the chance and motive for sale began to 
 
 appear, and so more or less clog the vendible freedom: and 
 
 next, that at a later period when land became feudal the 
 
574 
 
 right of the giver would hang over it till the feud became 
 heritable, and hamper its transfer even then. We are not 
 surprised therefore to see expectant heirs joining in a 
 charter i to note Glauvil's broad statement that by the 
 ancient common law a man could not alien such lands as he 
 had by descent without the consent of his heirs; to find 
 Fleta saying that land held directly of the king is inalien-> 
 able without his consent ; to learn that the tenant ia ser^ 
 geanty cannot convey without the royal license; to read 
 that the copyholder cannot give title except through a sur- 
 render to the lardj and to see as a consequence of these 
 changing rules and confusions of right that the title to 
 every free tenement was open to doubt, and the temptation 
 of lord or baron to enter upon it and eject the holder a 
 continuing source of tenor and uncertaihty- 
 
 But the king's court and some new writs came to the 
 aid of the holder of a free tenement; and this brings us 
 back to Glauvil, and his description of the manner in which 
 seisin or bare possession was protected. He tells us of 
 what he calls four petty assize-d. Two of them strike us as 
 of very great importance because they lift possession or 
 what is called seisin to the dignity of an estate which the 
 law protects. One of them is the assiSe of novel disseisin. 
 The tenant who has lost his possession may have a writ to 
 get it back, and if it appears that he had seisin before the 
 
575 
 
 entry of the alleged trespasser he will be restored to the 
 possession, and on the trial cannot be compelled to wage 
 his battle, but may put himself on the country; that is, 
 submit the question to an inquest of the neighbors of the 
 vicinage. The second assize was named, in the law French of 
 the day, mort -d^ancestor . A tenant in possession dies and 
 the lord enters, claiming a reversion. A writ issued on 
 behalf of the heir whose possession is obstructed and which 
 raises t»» questions: first, did the ancestor of the heir 
 actually die seized and, second, is the plaintiff in the 
 writ the legitimate heir of that ancestor. If so he is to 
 be put in possession. In both cases it is the bare seisin 
 and not the ultimate legal right or title that^f is in issue 
 and which the law protects, but it is an enormous gain to 
 the freeholder that he cannot be summarily disseised, but 
 may keep his possession and drive his assailant to the writ 
 of right where even the customary title will have respect. 
 At last the law has found a way in which a man may hold 
 who has no deed. So much for Glauvil. 
 
 But something had happened before he xsxta. wrote; 
 and that scmething was an enormous revival of the study of 
 the Civil Law. There was said to have been discovered at 
 Almalfi in 1135, when that dty was taken by the Pisans, 
 a copy of the Digest to which the attention of the learned 
 
576 
 
 was at once directed. There is little need of that doubtful 
 story in the face of Savigny's demonstration that the 
 Roman law was never wholly lost, but all through the Middle 
 Ages exerted a decided influence on other systems. Be 
 that as it may, we know that early in the thirteenth century 
 Irnerius was expounding the Code and the Institutes at 
 Bologna, and students were flocking to him from all direc- 
 tions. In the reign of Stephen, Vacarius was successfully 
 teaching the Civil Law at Oxford, and, although finally 
 stopped, the study prevailed sunong the ecclesiastics with 
 whom, as Hallam says, it was a maxim that every canonist 
 must be a civilian, and that no one could be a good civilian 
 unless he was eilso a canonist. Indeed it is asserted that 
 Bracton himself taught at Qsford £ind that his book was the 
 producct of his lectures. The English Judges of the time 
 were largely selected from the clerical body and may well 
 be suspected of resting their decisions r^jon, and being 
 guided in their reasonings by a body of law infinitely superior 
 to that inherited from the barbarian races. Among the 
 Civilians on the continent Az^o and Accursius became the 
 most famous, and the glosses of the former spread over 
 the world. We know wondrously little about Bracton who 
 wrote during this Romanist revival which pervaded the whole 
 legal atmosphere. It is certain that he was an ecclesiastic 
 and thoroughly (conversant with the Roman lawj and that for 
 
577 
 
 more than twenty years, during the reign of the third Henry, 
 he was a Judge of the royal court, going in eyre and at- 
 tending to judiciea duties during the whole of that stormy 
 period. How he managed to hoM his place between the 
 veax king whose will was wax and the rebel Beurons whose will 
 was iron, and through the disaster of Lewes and the victory 
 of Evesham, without losing the confidence of the combatants, 
 it is impossible to understand, except on the theory that 
 he avoided all politics and ga^ himself unreservedly to 
 the duties of a Judge. His commentaxies are a meirvel for 
 
 the time. He gives us in almost all directions the English 
 
 it^ 
 
 law as he knew it and enforoedy^ and one must be very stubborn 
 not to admit that the fountain on which he drew, his reser- 
 voir of s\35)ply, was the Code ,and the Digest and ikx the 
 Institutes of Justinian as expounded on the continent by 
 Azo. At the outset he defines Jurisprudence, in the pre- 
 cise words of Justinian, as the knowledge of things divine 
 and human; the science of what is just and /unjHst. He de- 
 scribes Law as the common precept of prudent men in council, 
 the coercion of offendes, and the common warrant of the 
 body IB± politic. Custom, he says, is observed for law in 
 parts, and fills the place of law, and its authority is not 
 slight. Then he sits down before that marvellous word, 
 right, the Roman Jus , which so baffles our analysis, adopt- 
 ing in the main the discriminations of Azo and of the 
 
578 
 
 Digest; so dietinguishing between right in its ethical form 
 as the science of what is good and fair, and natural right, 
 and civil right and praetorian right; and then describes 
 its use as applied to property suid persons. In defining 
 Equity he follows the Civilians, declaring it to be an ad- 
 justment of things on an equal platfo'Ei^ and as practiocally 
 synonomous with equality. He then names the precepts of 
 right as these three; to live honestly, to do no harm to 
 another, to award to each his right; again following the 
 Institutes ewen to the extent of verbal precision. Public 
 right and private right are distinguished along the line 
 of the Civilians. Following their order Bracton begins his 
 work with the law of persons, goes to the ±iu. law of 
 things and n^Sct to that of actions. Surely, here are 
 
 Roman foxxndations, built with the stone and cement of the 
 fallen and wrecked city. But the superstructure as it 
 rises looks very English. The borrowed stones are Saxon- 
 carved. We see customs born of the swift development of 
 the feudal system, having their roots in the soil of Rome, 
 but spreading into a law peculiarly Brittanic and insular, 
 and unlike that from which it grew: there are forms and a 
 procedure resembling that prevailing in the Xnxam Forum 
 before the time of the Emperors, and yet going thdir own 
 independent way by new methods and under new names. But 
 
579 
 
 the fundamental doctrines, the law of bailment, that of 
 piirchaee and sale, that of conseneual contract, that of 
 prescription, that of disseisin, that of the habeas corpuet , 
 that of Uses, suid of Assignment, that of feudal relation, 
 that of Wills, and the whole law of Equity were a(^ either 
 derived from the Civil Law orj^ palpable imitations of it. 
 Very probably the English lawyer will demurar. Thus Maine 
 wonders "how Br act on could have been able "to put off on 
 his countrymen as a compdndium of pure English law a 
 treatise of which the entire form and a third of the con~ 
 tents were directly borrowed from the corpus juris ", and 
 "where the systematic study of the Roman law was formally 
 proscribed", and calls it "a hopeless enigma." We, who 
 have not quite inherited an ancestral prejudice, can easily 
 see that there was ho "enigma" about it, but that what 
 Bracton did was truthful, natural and inevitable. His 
 problem was, out of the scsuit and poor material which the 
 courts and the customs of the time supplied, to frame an 
 orderly and intelligent system of English law. Imagine 
 him trying to do it out of the court rolls edone from which 
 he seems to have copied a multitude of decisions I Even 
 PolloGdc auid Maitland describe them as "a beggarly collection 
 of annotated writs." Examine his noitB-books which gathered 
 them, and then say how it was possible to make any intelli- 
 gent, harmonious and scientific system founded on them alone, 
 
580 
 
 Besides, there were thejecclesiastical courts, part and 
 parcel of the judicial system, dealing not only with things 
 spiritual, but with private promises and contracts, which 
 the king's court despised, and judging always on the basis 
 of the Canon or the Civil law. What was he to do with themt 
 Beyond even that he saw all around him, as we have a right 
 to infer, how the "proscribed" Roman law had already eaten 
 into the notions of the people and the reasonings of the 
 Judges, and, however disguised by an awkward and technical 
 procedure, was the real basis of most of the legal doctrine 
 of the time. For, unless that was true, it is inconceivable 
 that he should have dared to frame his system as he did. 
 It is hard to believe that he would have ventured openly 
 and boldly to build his structure so largely out of the 
 Civil law unless he knew that it was woven into the texture 
 of the island law, and therefore was simply telling us the 
 truth about it. There is no "enigma* for those of us who 
 think he wrote honestly. It only becomes such for those 
 who admit that he knew what the law was, but axe obliged 
 to say that he falsified it in the face of the people and 
 the courts. 
 
 It may be asked why the Roman law was "proscribed", 
 and why Bract on and his associates could take so much of it 
 and yet not adopt it as a whole. There is a sufficient 
 
581 
 
 answer. A hard and severe struggle arose between the 
 canon and the common law, not so much over doctrine as over 
 jurisdiction. The claims of the papacy to supreme dominion 
 over aU kingdoms, to put all riilers at its feet, to levy- 
 contributions upon the people with a greed to which there 
 seemed no end, had aroused that spirit of freedom and inde- 
 pendence which came down from the German forests, and 
 showed itself very clearly and with true Saxon tenacity in i 
 the resistance of the English law. The canon and the Roman 
 law were the law of the Pope. That was enough: England 
 would not have it, and viewed it with dislike and rejected 
 it as a whole; while all the time her courts were tedcing 
 from it so much as seemed fit and suitable, and melting 
 that over in the crucible of law procedure to be cast into 
 distinctively English forms. 
 
 It was no discredit to those courts or the Judges 
 who presided over them that they thus borrowed the order 
 of th© Roman system and a great part of its doctrines. 
 On the contrary, it would have been greatly to their dis- 
 credit if they had obstinately shut their eyes to the intelli. 
 gent help which was at hand and could be had for the taking, 
 and instead had tried to build up a law out of Saxon dube 
 and lorman swords alone. Fortunately for the Common Law the 
 Judges were too wise for that, and while, out of deference 
 to a popular prejudice, they talked about the laws of Edward 
 
582 
 
 which never in fact existed, they took from the Canon and 
 the Civil law what they really needed, modifying it to 
 meet English ways and clothing it in English forms. Be- 
 cause of that tjaey deserve the gratitude of all those who 
 live under and thoroughly respect the Common Law. 
 
583 
 
 XVIII. 
 
 SEISIN . 
 
 During the darkness and confusion of two centuries, 
 froj^ the coming of Duke William to the reign of the first 
 Edward, there is prevalent one legal idea which seems to 
 permeate everything and dominate the whole field of Right 
 and Remedy. About it cluster a very large part of the 
 medieval rules and custans, and a study of it may serve as 
 a guiding tliread through a labyrinth in #iich everybody 
 loses his way, and no two scholars agree upon the true direc- 
 tion. That legal idea is the large conclusiveness of actual 
 and open and obvious possession as the evidence of Ownership 
 and the occasion of remedies, but taking ajJ peculiar form 
 and becoming what the English law knew as the doctrine of 
 Seisin. The word has been derived from two different 
 sources, and taken color from its derivation. It approaches 
 so nearly to our words "seize" and "seizure" as to indicate 
 a violent or forcible occupation of land: but that meaning 
 is quite too narrow, for much the most common use of the 
 word describes a possession taken peaceably and lawfully 
 and with the consent of the parties engaged in the transfer. 
 The better derivation is from s©^o or sedes. The occupant 
 
584 
 
 sits down upon the iguid; cones to stay, we express the 
 same idea when we speak of the ^seatjS'- of war, or describe 
 a legislator as ^seated* or" 'unseated' , or buy a 'seat' in 
 a stock Kxksas exchange. The underlying thought is one of 
 possession, of occupation more or less pearmanent, and 
 arrogating to itself some real or pretended right. 
 
 We have already been sttftock in almost ©very age and 
 in every historic field with the prominence and wide sway 
 of a rule which invariably requires as the foundation of 
 all efficient rights some open and obvious puil|)ic act 
 some visible and suggestive ceremony which the transaction 
 witness dan see, which they can oacurately and readily 
 remember, euid which supplies the want of records and of 
 writings. It was a rule of necessity. Ancient law was 
 leu:gely unequal to abstractions and saw everything in the 
 concrete. The idea of Ownership came slowly and late, for it 
 was an Impalpable thought, a purely mental product, which 
 had to wait for its creator. The older ages* at times and 
 on occasion dimly realized it, but we find no clear concept 
 tion of absolute Ownership in the period with which we axe 
 now busy. The extreme conception seems to have been of a 
 right good till a better one eg)pears, but never wholly ex- 
 cluding such last possibility. We shall see most easily the 
 nature of this right, and its dependence upon, the fact de- 
 scribed as seisin, if we watch in Anglo-Norman times the 
 
585 
 
 process by which land was transferred. Let us take the sim- 
 ple case of the transfer of an estate of freehold which was 
 always a fee or a life estate, suid not a term of years or at 
 the will of the lord, le know that the old Germanic way 
 required the parties with their witnesses to go upon the 
 land itself, that the donor cut a sod or twig and handed 
 it to the donee, saying that he thereby gave him the land. 
 The knife used would be preserved with its point broken 
 or blade twisted or words engraved on the haft as a material 
 evidence of the transaction. Pollock and Maitland tell us, 
 that at an earlier date the donor on the land took off his 
 waur -glove or guemtlet, and gave it to the donee who drew 
 it on, and with it took the sod or twig, perhaps the 
 "festuca", the symbol rod, and thus obtained investiture 
 of the land; the word meaning that he was clothed with the 
 power of maintaining by battle a defense of his possession. 
 Often the donor was required to depeurt from the land at 
 once, making some gesture of renunciatio"o, and leaving the 
 donee in evident and plain possession. The method admitted 
 of less decisive acts in process of time becsause of some 
 troublesome necessities. Land given for the use of a 
 church was often given to the Saint whose shrine it held. 
 The dead martyr or devotee was the expressed donee, and it 
 was not quite easy for him to go in his bones to the land, 
 though the consecrated relics were sometimes carried thither. 
 
586 
 
 In Buch cases there was often a symbolic investiture. The 
 twig or sod was laid upon the altar, the rod passed to the 
 abbot, and the whole affair completed in the church. The 
 Roman system in time depended more upon a written charter 
 or grant, but that had to be formally delivered to the 
 donee. Even now it is not the mere execution of the deed 
 which passes the title but its actual delivery, and we 
 continue to talk about "vested" estates, often unconscious 
 that the word came down from the old form of investiture 
 which clothed the donae's hand with the war-glove for his 
 defense. But in England the ancient habit strongly prevailed 
 through the tenth and eleventh centuries, and took the form 
 of livery of seisin. While it is true that there seem to 
 have been occasions when the transfer was away from the 
 land and more or less symbolic, yet in the Norman period 
 and under the ruling of the king*s court an actual and formal 
 delivery of possession became indispensable: and this was 
 necessary in order to fit in with the judgment of the re- 
 cognitors. These were the twelve men of the vicinage, 
 chosen for their probable knowledge of the facts, and ex- 
 pected to give a true verdict upon them, and for this 
 medieval jury there was no means of knowledge unless theie 
 were visible acts. And so in the transfer of land Hzdtzijcx 
 livery of seisin and its open and obvious ceremonies became 
 
 the one essential element. How it has clung to the disposi- 
 tion 
 
587 
 
 of real estate even in its rude and barbaric form is shown in 
 some recasntly unearthed Conncctucut records in which land 
 was said to have been acquired and transferred "by Turf and 
 Twig", and in the survival in our practice of the possessory 
 action of ejectments and of the rules which yet attend 
 seisin in law and seisin in deed. Obviously, in times when 
 leuid was generally transferred without a writing, some 
 public and visible change of possession was the only possible 
 evidence and the one decisive fact. And so it is not 
 strange that livery of seisin became firmly imbedded in 
 the English doctrine, and even though it grew to be need- 
 less was not abolished until 1845. 
 
 But this Seisin, so necEBssary and important, had to 
 be in some manner protected: for behold the sweeping con- 
 sequences of a disseisin. Bracton and the court-rolls tell 
 us that the disseisor, — the man who ejects the occupant and 
 gains possession,— gets almost everything from his success- 
 ful force. He becomes seized in fee. He has the jus 
 dieponendi, and may sell the land or devise or lease it. 
 It will descend to his heir, it may escheat to his lord, 
 it may be taken on execution for his debt. His wife will 
 have dower in it, and if his possession is disturbed he 
 may have a remedy by action or entry. On the other hand 
 the disseised owner, the person put out of possession, not 
 
588 
 
 only loses the power of present enjoyment but has left only 
 a right of action, and tha^t, in Bracton's time, was neither 
 assignable nor devisable, and would not descend, for it had 
 becQ^e a mere chose in action. Surely the intruder into 
 the land has become practically owner, and possession is 
 very close to ownership. Now the tenant disseised had a 
 remedy by the Writ of Right whi di in the end determined 
 who should lawfully possess, but we have already indicated 
 how difficult and dilatory that remedy was, and how it might 
 end in battle. With its almost interminable essoins and 
 the difficulty of proof it was a very inadequate remedy 
 for the owner summarily dispossessed. He therefore was 
 given the two writs of novel disseisin and mort d 'ancestor 
 which we have already described and which Pollock and 
 Mai t land, who never enlarge the debt of the common law to 
 Rome, frankly concede were foxaided upon "the canonists 
 actio Bpolii which itself had its origin in the Roman 
 interdict Unde vi. " These writs operated wholly upon 
 the possession, and the judgment favored priority of seisin. 
 The earlier seisin gave the better rights, and the only 
 questions asked or answered were, was the demandant in 
 possession of the land and did the defendant disseise him. 
 If the recognitors said yea the demandant was put in- and 
 the defendant put out. The latter might in truth bf the 
 real and honest owner but was not allowed to make that 
 
589 
 
 defense. Judge Holmes asserts the contrary, but his state- 
 ment has been shown to be only true of a much later period. 
 The possession as it stood must first be reinstated, and 
 the disseisor ousted of possession must go to his wiit of 
 Right, and leave his adversary choice of the assize or the 
 battle. Seisin thus was a vital thing and vigorously pro- 
 tected. Self-help was not wholly dead. The tenant ejected, 
 if he moved promptly, might efect the disseisor. We are 
 told "that he may ride one day east, one day west, another 
 north and another south, to collect friends and Arms, and 
 must perpetrate the re-ejectment on the fifth day at the 
 latest. If he was away from the landVhen the disseisin 
 was done a reasonable time will be given him to hasten to 
 the tenement and then he will have his four days." Bract on, 
 good lawyer that he was, hardly approves the^te rules and they 
 soon died out. But if this remedy was delayed or emitted 
 then the tenant jfejected had his novel disseisin. But that 
 writ might not always suffice. We have said that the heir 
 of the disseisor would inherit. Suppose that he did. He 
 had disseised nobody. He entered as of right and without 
 wrong of his own. The novel disseisin would not touch him. 
 There must be another writ to fit the emergency, and the 
 King's Chancery could always frame one if paid for it: but 
 that Chancery was merely the clerk of the growing morality. 
 
590 
 
 The facts made the writs and they grew, one after another, 
 out of emergencies actually arising. Thus came the writ 
 of entry sur disseisin . This was the first of a busy group 
 of writs depending upon an entry by the claimant. There were 
 some curious and some complicated rules about that entry, 
 especially when and how it could be tolled or barred. The 
 claimant had to go upon the land and assert his right. If 
 there was a house upon it he had to go to the front door. 
 A claim at the back door would not suffice . It made no 
 difference whether the disseisor was present or not. If 
 the latter barred the claimant's path, obstructed his en- 
 trance, put him in danger of life or limb, he could stand 
 outside in wiew of the land and make an effective claim 
 there. Apparently, the process was a collision of two seisins, 
 and on the issue of the y*rit it was determined which of the 
 two had a priority and so which had the better right. It 
 charged the heir with an entry under a disseisin , and that 
 heir could not go back of his entry. Did your ancestor 
 disseise the complainant and did you enter as heir under that 
 disseisor? If yea, leave the premises, — ^vanish". There is 
 no other questioh. And so st seisin will be upheld even 
 as against the heir of the disseisor caning in by inheri- 
 tance and guiltless of any personal wrong. But observe 
 the principle of this writ and how certain it was to breed 
 a multitude of similar remedies. Here is a mere termor. 
 
591 
 
 holding an estate for years, not even regarded as a free- 
 holder, whose term has expired, but who holds over and 
 claims a fee. Against him there comes the writ of entry 
 ad terminum praeteriet which alleges an entry for years 
 which have expired. That is the only question. Has the entry 
 lost its right: has it become wrongful. No proprietary de- 
 fense is admissible. Here again is a husband who has as- 
 sumed to sell his wife's land. Many noblemen marry to rob. 
 While he lives his |!Kb feofee can hold and the wife has no 
 remedy, but when the husband dies she is entitled to re- 
 cover her lost seisin, and the ^hhrit of entry cui in vita 
 runs against the feofee. Still further: the disseisor in 
 possession dies leaving an heir who enters, and who then 
 makes a feofment to A who in turn conveys to B. Here came 
 a new trouble. How reach B? For some reason, difficult 
 to ascertain, the six writ of entry sur disseisin ran only 
 in degrees. It could be brought against the fourth hand 
 but not the fifth. Counting the disseisee as the first hand, 
 the disseisor is the second, his heir the third, A the fourth, 
 but B is the fifth, and the writ will not run against him. 
 There was neither sense nor logic in that rule. If the 
 original disseisin was a wrong and gave only a voidable 
 title every derivative title had the same defect and was 
 equally voidable. Ere long the statute remedied the defect 
 and the writ ran against anyone holding under the original 
 
592 
 
 disseisor. Its chief characteristic was that it charged 
 the adversary with having entered upon the land under a 
 wrongful disseisin, specifying it in terms, and the de- 
 fendant was not allowed to go behind that fact. He could 
 show a good right or title which accrued suhseg^uently , but 
 none which preceded the disseisin. And such earlier right 
 was no justification for the wrongful entry. The intruder 
 had helped himself and that was no longer to be permitted. 
 The Law proposed to do all the helping itself and end 
 Self -Help by the individual. Blackstone says of this sort 
 of remedy that it "came from o\ir Saxon ancestors." Mait- 
 land asserts the contrary and is very certainly right about 
 it. We do not need to recite the multitudinous eirray of 
 this family of writs. They were all alike in the one res- 
 pect that they struck at a wrongful entry which in sub- 
 stance though not in direc* form amounted to a disseisin, 
 and they left open the question of the true title, resting 
 everything upon the return of the lost seisin. 
 
 That seisin even dominated the Qharter, the 
 Indenture, the Deed, — Roman docioment though)^ it was,— ^ath 
 its splash of seals and fringe of witnesses, and the model 
 of which is admitted to have been the conveyance of a Roman 
 landholder. That is evident from the fact that if one 
 makes a written feofment to his daughter for life with 
 
593 
 
 remainder to his son in fee, but gives the daughter no livery 
 of seisin, the remainder is void, the son takes nothing, 
 the fee reverts to the grantor, and so seisin of the 
 tenant for lifA is necessary to uphold the fee granted in 
 remainder. And yet seisin, on seme rare occasion, was more 
 liberal and less exacting^ Two men, each owning a fee, 
 may exchange their tenements without any formal livery, 
 and seisin in each case will quietly accept its new master. 
 But the lands excj(hanged must both be in that mixture of 
 French and Saxon known as a County, The County, ruled by 
 a Norman Count takes its name from him: ruled by the Saxon 
 shire-reeve or sheriff it becomes the shire. The G&untess 
 is simply the sheriff's wife. But usually and normally 
 seisin is quite despotic, and imposes a penalty on those 
 who refuse to yield to its authority: for, if one by deed 
 grants a fee but withholds livery of seisin the grantee 
 becomes merely tenant at will. The Charter for a long time 
 does homage to that English doctrine which has its roots 
 in a far away social life. 
 
 But seisin had a much wider reach and as a doctrine 
 took on an enormous extension. There was the eaxae trouble 
 everywhere in the long search for the abstracct and complete 
 idea of Ownership, and nothing is more interesting than 
 to trace the steps, blind and halting though they be, by 
 which judicial reasonin^eaahed its loltimate end. Let us 
 
594 
 
 follow the trail. 
 
 Here is an owner of a right of common. Almost every 
 tenant had such right appendant to his farm or lot, and 
 exercised in accordance with a well understood custom. He 
 was not seised of the pasture land but only of a right in 
 or over it, but there was unmistalcable seisin of that right, 
 and for a disseisin, that is for a disturbance in the 
 exercise of the right, there was a purely possessory remedy. 
 The grave importance of this seisin of a right is made 
 known to us by Bracton. If a feofment' is granted to which 
 a right of common is appendant the feofee at once acquires 
 what is termed a fictitious seisin by viewing the ground 
 over which the right may be exercised, but so long as it is 
 merely fictitious he has nothing which he can convyy. To 
 be safe he must get an actual seisin, and from the necdssity 
 of the case he can only do that by user. He ^ust take the 
 first opportunity to turn his beasts in or he will lose his 
 right. 
 
 But go a step in advance . Here iM is an owner 
 of a knight's fee upon which a neighbor has trespassed. He 
 has turned in his cat lie or is putting an eixe to the trees. 
 We know very well that to-day an action of trespass for break. 
 ing and entering the close would be the remedy, and that, 
 while the action sounds in damages the defendant may raise 
 a question of title and thus transceddjthe possession. It 
 
595 
 
 was not so in Bract on 's day. The injured party could treat 
 the trespass as a disseisin pro tanto j and shut off any 
 inquiry beyond the possession, and so drive the trespasser 
 to his writ of rights. 
 
 But again, one's neighbor affects the possession by 
 creating and maintaining on his own land a nuisance. He 
 does not overstep boundaries, but he so uses his own free- 
 hold as to meir or hurt the enjoyment of the adjacent land, 
 the writ of nuisance is awarded to abate the constructive 
 disseisin, and it does abate it instead of merely giving 
 damages. Mr. Reeves says a nuisance was considered as in 
 the nature of a disseisin, and here seisin is reaching out 
 beyond the land and demanding protection against something 
 that is only in the air I 
 
 Indeed it did not hesitate in its aggressive march. 
 It boldly entered the field of incorporeal rights, at first 
 mastering those which savored of the realty and which could 
 be deemed in some sort an appurtenance, but soon passing 
 byond these and leaving the lauad far behind. Here is the 
 writ of Advowson. Who may present a parson to the living? 
 The fox-hunting parson of those days was an institution. 
 He had his titles, his revenues, his manse. Favorite 
 guest at the table of the manor, he could often out-drink 
 its lord. He left preaching to his curate and grew fat 
 and sleek, red of nose and flabby of face, secure of 
 
596 
 
 happiness in two worlds . If he went astray, and we axe 
 afraid he did, he had benefit of clergy and could only be 
 tried in the ecclesiastical co\art which meant an easy escape. 
 But which lord shall be allowed to fill the vacant place? 
 Here anew comes in the doctrine of seisin. He who last 
 presented to the living was seised of the Advowson, and 
 that seisin settles the controversy. So we have the assize 
 of " damien presentment " raising the question for the re- 
 cognitors to answer before the Justices in Eyre or those of 
 the king's bench, who, by himself or his ancestors, presented 
 on the last previous occasion of vacancy a clerk to the 
 Bishop for investiture. That answered, the judgment follows 
 the answer, seisin of the Advowson settles the quarrel, 
 except that the defeated claimant may have his writ of 
 Right closely analogous to that relating to land. Now 
 normally the Advowson is an appurtenance to the manor. Who 
 gets the manor gets also the Advowson. Who sells the 
 manor passes the Advowson. sut the Advowson is thing by 
 itself ,— an incorporeal right,— and may exist separated 
 from the manor, in gross as it is called, so that it ceases 
 to be an appurtenano© of the freehold. Yet Seisin follows 
 it and so attached itself to a purely incorporeal right, 
 and in so doing settles largely the value and character of 
 that right. 
 
 Yery like the case of an Advowson is the way in which 
 
597 
 
 the feudal lord protects his right to the services due from 
 his tenants. Seisin had to reconcile itself with the 
 feudal system, and did not find it altogether easy. Let us 
 suppose a case. The lord has enfeoffed Cheurles, giving 
 him a knight's fee, reserving the usual feudal services. 
 ChaJles has acquired a freehold estate and is seised in fee 
 of the land. There can be but one such seisin and the lord 
 has parted with it and no longer has it. Now, Charles with- 
 holds the stipulated services; nay more, he renders them to 
 another lord as being his of right. How is seisin to deal 
 with this problem? It boldly shifts itself from the land 
 to the services. The lord who enfeoffed Charles and gave 
 him seisin of the land could, by taking the services, be 
 seized of the services, that is of the incorporeal right 
 to demand themj and when Charles rendered them to another 
 he disseised his feoffor of the services due. That is true 
 on the supposition that the latter has at least once re- 
 ceived them so as to have had an actual seisin. While a 
 mere failure to render them would have for its remedy a 
 distraint of the tenant's goods, Ms resistance of that 
 distraint and especially his attornment to another would work 
 a disseisin. The injured lord will have his assise of novel 
 disseisin, and the writ will run precisely in the same form 
 as in the case of land. Look shairply at the situation. 
 Here is no debt, no contract, no obligation, no suit on a 
 
598 
 
 promise. The action of Assumpsit is yet in the f utiire . In- 
 stead of that there is a restoration or recovery of a 
 thing. The right to the feudal services is a thing, like 
 an acre of land of which the lord was seised, and now is 
 merely recovering his seisin. And he, like the freeholder, 
 if he does rfafibt resort to the novel disseisin, may have his 
 proprietary action by writ of right: but even then he is 
 quite sure to show his title by going back to some ancestor 
 having an ancient seisin and then tracing his right by de- 
 scent . 
 
 A similar thing was true where services were commuted 
 into rent and the ^tenant held on condition of its payment. 
 When it became due the lord went upon the land and demanded 
 it. If the tenant refused or simply stood silent, much 
 more ilC he shut his enclosure qgainst the lord or resisted 
 his approach, that was a disseisin of the rent axid the 
 usual writ issued. And further, if the lord sold the rent 
 charge to another and the tenant attorned to that other the 
 debt became a rent seek, and the new holder ^just get a penny 
 or a half-penny of the tenant so as to become seised of the 
 rent, and then for a failure of payment he could have the 
 novel disseisin. It cannot be feu: from the truth to say 
 that the medieval conception of OvHiership was neither more 
 nor less than Priority of Seisin. 
 
 But let us get entirely away from the land for we 
 
599 
 
 have been lingering on its borders. Pass now to the right 
 ^of personal liberty. This the villein did not have. While 
 not a slave he was at least a serf. He belonged in a very 
 material sense to the lord whose lands he tilled and mhom 
 he served. If he occupied a plot of land it was at the 
 will of the Baaoon, though the estate of ^lleinage gained 
 some protection from the custom of the manor. But this 
 serf had a chance given him throtgh the doctrine of seisin:- 
 a small chance, but a chance. He could run away, escape, 
 fly from his bondage, and so destroy the seisin of his 
 master and become seised of his own liberty. The lord 
 might prevent fihis by prompt action. If he caught the 
 fugitive within four days, or the latter returned to his 
 "villein nest", — as it was called, — ^the master's seisin was 
 not lost. He might whip the serf or set him in the stocks 
 and 80 retain the villein seisin, but if the fugitive made 
 good his escape beyond the four days the seisin of the 
 lord was gone, and the serf became seized of his own liberty. 
 This consequence followed. The lord was driven to a pro- 
 prietary action for he had lost his seisin, but even then 
 we shall see him making his title by Priority of seisin. 
 He will say, my grandfather was seised of your grandfather as 
 his villein and took esplees of him as by taking merchet 
 of him, tallaging him high and low and making him his 
 reeve, and then the lord will trace down his own lineage 
 
600 
 
 and the base descent of the serf: so that again title or 
 Ownership is very nearly indent if ied with Priority of 
 Seisin. Let us define some of our words. "Taking esplees " 
 means this in reference to land. 'The man who has seisin 
 manifests it by taking off the fruits or products. These 
 are esplees . Who takes them asserts possession, dominion, 
 control. In the case of the serf the acts amounting to 
 esplees are necessarily acts of dominion. The lord took 
 mertchet of him, that is the serf/ was required to pay for the 
 
 privilege of giving his daughter ^in marriage or sending 
 his son to school, — a payment regarded as base and indica- 
 tive of bondage. To "tallage" him is to levy taxes upon 
 him as a seignoral right, and to make him a "reeve" is to 
 impose upon him within the manor duties like those of a 
 constable but subject to the orders of the steward. The 
 exercise by the lord of these dominant rights showed and 
 made patent his seisin of the villein and the state of 
 serfdom to which the latter was reduced. But see where we 
 are and the bold hand which seisin has laid upon the law. 
 It has becone the implement, the tool by which every right 
 and every remedy is relentlessly carved and cut into a 
 likeness to the land-law, and we cease to wonder that both 
 Glauvil and Bracton began with that, and treated nearly 
 everything else as corollary and conseqaence. Bold these 
 ancient lawyers were and wonderfully ingenious in bending 
 every doctrine and every situation to the domination of 
 
601 
 
 their favorite theory. For a moment let us see them sur- 
 mounting difficulties. 
 
 A freeholder has seisin of a hundred l^es of land. 
 He has one son who happens to be not at home when death ends 
 the seisin of the father. The baron in his castle, hungry 
 for escheats and forfeitures, and always ready to steal 
 land, — a trait which has gone with his blood to our day 
 and breaks out the world over, — sees the vacant seisin, the 
 unoccupied farm, and at once swTi^oops down upon it. He has 
 gained the seisin. What shall the heir do? Nowadays we 
 master the problem easily. The heir is bz seised in law 
 at the moment of the father's last breath. That heir may 
 be a thousand miles from the land. No matter; he is 
 sdised in law of an estate of inheritance instantly and 
 absolutely. But the medieval courts had no such abstrac- 
 tion. They only knew the seisin of actual hard fact and 
 the baron has got that. To meet the necessity the law 
 gave the heir the assize of mort d'ancestor which we have 
 already described, and promptly turned the lord out. It 
 did more than that. To help the heir it played a trick on 
 Death. Bracton, as was his habit, went back to the Roman 
 law. Always when in trouble he flies to it for help and 
 gets it. He cites Paulus for the dbdoctrine that seisin is 
 both " animo " and " corpore ", and holds that is is not gone 
 while the dead body is in the house. Is that the reason 
 
60S 
 
 ^hy the corpse lies silent, gripping the seisin in its 
 dead hand, for the usual four days emd waiting for the heir 
 to CQne, and are we unconsciously following that custom, 
 though for other reasons, to this hour? At all events the 
 seisin is not vacant until the funeral is over, and at least 
 an unseemly struggle between lord and heir is averted while 
 death is in the house. And it is made easy for the heir 
 to become seised. He need not take esplees and so exploit 
 his possession. He has only to set foot upon the land to 
 be seised at once. But suppose him to be an infant. The 
 feudal law puts him in ward of the lord, except where the 
 estate is in free socage, who enters as guardian. He takes 
 the profits and products and it is long before he renders 
 an account or is punished for waste. Where is the seisin 
 now? Surely it is in the heir for his baby foot is on the 
 land. Yes: but then the lord is seised of the wardship, 
 of the custodia, which becomes a thing: not an impalpable 
 
 right but a thing, actual and tangible, of which the lord 
 can be disseised as if it were a hyde of land. And very 
 much of a thing it sometinss was for his empt^fy purse. 
 
 But difficulties thickened. How tanage a mortgage? 
 It was common of course that a freeholder desired to borrow 
 money upon the security of his land. But how give that 
 security in accord with the law of seisin and in the absence 
 
60S 
 
 of the executory contract? Easy enough for us who understand 
 a lien, but not easy in the Middle Ages when no such idea 
 had dawned. What had dawned was the notion of an estate on 
 condition, of a conditional fee. The famous statute " De 
 donis" , often yet referrdd to, shows that. In the eleyenth 
 and twelfth centureiiB gifts became common vitoich were limited 
 to the donee guid the heirs of his body and to husband and 
 wife and the heirs of their bodies. Very soon the courts 
 construed these to be conditional gifts, so that where there 
 was a limitation to Charles and the heirs of his body it 
 meant simply on condition that he shall have such heirs. 
 Hence, on the birth of a child, that condition was fulfilled 
 and the estate vested in Charles absolutely. He could 
 alienate the land and his feofee would Hold even if the 
 issue of Charles should all die and he himself decease 
 leaving no issue,. and no heirs of his body. By that ruling 
 the dnnor lost his reversion and f. if there were heirs they 
 were tMxtx disinherited by the alienation. To meet this 
 trouble the statute of Westminster was passed in 1282, 
 usually cited as the statute De donis , which explicitly 
 required that the form of the gift should be observed, and 
 so the right of the heirs be saved and the possible re- 
 version be proteoEted. Thus grew the estate in fee fail 
 which has played so large a part in the English law. 
 
604 
 
 There could then be a conditional estate in the donee with 
 a possible reversion to the donor. That idea helped out 
 the mortgage. The borrower put the lender in actual pos- 
 session of the land, gave him the seisin but upon the 
 condition that full payment should end the estate and the 
 land revert to the mortgagor,,. Meantime and while the 
 condition of payment was awaiting its fixed date the mort- 
 gagee, having possession of the land, could appropriate the 
 annual profits to his own use, and so gain compensation for 
 his money loan. This was an exceedingly convenient way of 
 getting usury. It needed only that the lender should re- 
 qaire as his security a sufficiently large estate to fur- 
 nish a liberal or even an excessive income. We read hoW 
 a Norman duke gaged his duchy to the English king, and how 
 Willieim Fossard had gaged his land to the Jews for twelve 
 hundred pounds. When the usurers thus got possession of 
 duchy or manor the tenants had to work for a full day and 
 pay to the last farthing. This was the dead gage, the 
 mort-gage. If by the terms of the loan the lender was 
 bound to apply the income realized to the reduction of the 
 debt the security was known as the live gage, the vif -gage , 
 though quite other definitions of those terms were some- 
 times asserted. The "Mirour" for example calls the mort- 
 gage the dead gage because of its usual application to 
 
605 
 
 inunovables and the vif->gage to movables, a definition 
 wh4ch cannot be made to harmonize with the facte of the 
 situation. Almost always it was a Jew who held the mort- 
 gage and took the risks which we shall see were its invari- 
 able attendants. In those early days to charge interest 
 for the use of money was regarded as a sin. Not only lid 
 Moses forbid it, but Aristotle denounced it,' and Plato 
 rated it as a heinous crime. In England if a Christian 
 took it and died in his sin all his chattels were for- 
 feited to the king. So the Jew had a^/i clear field. He 
 was only "spoiling the Egyptians"; and he qaieted royalty 
 with a share of the booty. 
 
 But what happened to the seisin? At first it is 
 necessarily in the §agee. He can have no title without 
 it. On payment the flagor may enter and regain his seisin. 
 If he does not pay the land vests absolutely in the Oagee. 
 But until payment the Oagee is seiBed. Pollock and Mait- 
 land assure that his possession is called seisin. And yet 
 they add that if a stranger ejects the gagee it is not he 
 but the gagor who has the assize of novel disseisin: and, 
 Tirtiat is worse, if the gagor evicts his gagee the latter 
 has no remedy except an unsecured judgment for hie debt. 
 These results are inexplicable except upon the suspicion 
 that the seisin of the gagee is becoming shadowy and doubt- 
 ful, and the judgds are giving him merely a seisin as 
 
606 
 
 pledgee, — ut de vadlo ,-«-leaving the seisin in fee in the 
 gagor. It is no wonder that there was confusion, and that 
 the strain upon the doctrine of seisin was severe. Later 
 the logic of the situation v;ae improved by a new theory. 
 The lawyers began to say that the gagee was a tenant for 
 years, that is, a termor, and so having only a termor's 
 remedies. Now the tenant for years was not a freeholder 
 and if ejected could not have the novel disseisin. He was 
 regarded as having merely a possession, while the seisin 
 remained in his lessor, and we begin to open our eyes to a 
 distinction between possession and seisin which so^ day 
 will ripen into estates in land, each with its own 
 variety of seisin. It is close work, but the gagee reduced 
 to the level of a termor explains why he could not have the 
 novel disseisin and why, if the gagor ejected him, he had 
 no remedy except to sue on his debt. If then we regard the 
 gagee as a tenant for years — a^aere termor — we are compelled 
 tp inquire what that termor's remedies were. His lessor 
 sometimes made a collusive sale of the land, and the new 
 owner ejected the lessee with the result that the latter 
 had no action except on the covenants in his lease and din- 
 ing simply in damages. A new writ was framed under which 
 he could recover possession; but against everybody outside 
 
607 
 
 of the lessor the ejected lessee seems to have had no remedy 
 except to repel force by force, or bring an acction of 
 trespass guare claustx ea. It was near the close of the 
 Middle Ages before the writ of ejectione f iraiae restored 
 the possession. So that the gagee, supplied only with 
 the remedies of a termor, seems to have separated possession 
 fron seisin, and to hold a very risky and dangerous security, 
 but)f thereby furnishing ample excuse for very high rates of 
 interest. More than that: the logic of the lawyers was 
 obviously lame, and the argument of Pollock and Maitland 
 that the mortgagee was in reality the holder of a''^ree tene- 
 ment", and so entitled to the protecrtiqn of the novel dis- 
 seisin, seems to us unanswerable . But we must not be too 
 critical about it. Everything had to be somehow reconciled 
 with seisin and the lawyers had an ugly job. 
 
 But let us follow the mortgage a little further. 
 There was no clause of defeasance in it but only a condition. 
 The estate was to vest if due payment should not be made. 
 That pa3rment was required either upon a fixed day or general- 
 ly. In the former case a default on the day left the estate 
 absolute in the creditor. There was no redemption and so 
 no need of a foreclosure. If the debtor died before the day 
 of payment his executor could pay and so the possession 
 would be regained. But if no day was fixed the debtor's 
 death was fatal, for the condition was construed to mean 
 that he , personally, should pay, and no tender by heir or 
 
608 
 
 executor would fulfill the condition. It ie obvious that, 
 while the Jew ran great risks when lending his money, the 
 borrower was in equal danger not only of heavy interest but 
 of the loss of the land by forfeiture at the end. The law 
 courts tried to mitigiite thisiast evil. If no day of pay- 
 ment was fixed by the terms of the mortgage and there was 
 no express consent to a specific forfeiture the creditor 
 was required to apply to the court for judgment, and there- 
 upon a reasonable time was given to the debtor in which 
 to pay, and failing that the creditor was adjudged owner 
 of the land. We can easily see the need of an equitable 
 intervention which would give to the debtor more of safety 
 and a better opportunity to redeem. It seems probable that 
 the early conception of a seisin in the mortgagee vesting 
 in him a legal estate was responsible for that unjust and 
 curious doctrine of "tacking", which enabled a holder of 
 a first and a last mortgage, and who took the last without 
 knowledge of others intervening, to compel the holders of 
 the latter to redeem from both his mortgagee and so gain 
 priority for an incumbrance in fact subsequent. The ground 
 of the doctrine appears to have been that the holder of the 
 first mortgage acquired a legal estate in which his last 
 mortgage necessarily merged, and the mesne incumbrancers 
 must therefore redeem from his whole estate. And even yet 
 
609 
 
 the old quarrel as to the true character of the mortgagee's 
 interest in the land has survived without a decisi^ft answer. 
 Dean Lewis, in a note to his edition of Blackstone has 
 marshalled the ariray of the combatants. 
 
 But the medieval realism was bound to face other 
 situations, and had its ingenuity so severely taxed that the 
 way out was only found with the aid of a fiction odd even 
 to absurdity. 
 
 We have noted how seisin is attributed to incorporeal 
 rights by saying that if not land they at least issue out 
 of land. Some link of connection with a real thing is 
 sought in order to make a real thing of what is in truth 
 agf mere abstract right. It must smell of the land. Take 
 the case of a simple annuity, and here again we shall follow 
 Pollock and Maitland quite cdLosely. John gives Oheorles an 
 annuity for his life and Charles is said to have seisin 
 of the annuity! That at least was the law of the earlier 
 year-books, though Bract on begins to see that the non-pay- 
 ment is hardly disseisin of a tenement. But how make the 
 annuity real? What did it issue out of? Why, we should have 
 been regarded as stupid for not seeing that it issued out 
 of the donor J s chamber, and was likened to a rent and was 
 called a chamber rent, jts common form was what was termed 
 a corody. The rolls are full cf them. A religious house, 
 a monastery, growing rich upon the gifts of the flock and 
 desiring to retain in its service some canonical lawyer, 
 
 learned and able but shabbily poor, or to pension some re- 
 
 ble but with a faithful pg^g^ behind 
 
610 
 
 him, gives its donee a support for the rest of his life, — 
 board and clothes and lodging. Pollock says in many cases 
 "an elaborate document will be executed. The quantity and 
 quality of the meat, drink, clothes, candles, firewood, 
 that the grantee is to receive will be carefully defined: 
 even the mustard and garlic will not be forgotten." But 
 out of what real thing does this corody issue? Easily 
 answereyfed — that I It issues out of the convent, the monastery, 
 the consecrated building, and so at first the courts Chris- 
 tian had exclusive jurisdiction over it: but in 1285 a 
 statute gave the courts temporal an action for it; and what 
 do you think that action was? It was the assize of novel 
 disseisin just as if the victuals and drink were land. The 
 man who failed to get his gaxlic was disseised of his free 
 tenement, and the jurors, bound to view the land, went 
 and looked at the convent. With some reason they might 
 have peered into its kitchen. Can the doctrine of seisin 
 go any further? £ven that is possible. Let us see. 
 
 it seems to be quite clear that there was a disseisin 
 of chattels, and that the analogies of the land-law ran into 
 and shaped the law of movables. We have see already how 
 strong was the hold of the possessor and how nearly akin 
 to ownership. In nothing does the law of Glauvil's time 
 so much surprise us as in ascribing a right of property to 
 
611 
 
 the trespasser in what he has taken, and to the thief in the 
 chattel which he has stolen. Professor Ames cites for us some re- 
 markable illustrations. In a year-book of the foiirth Edward 
 the Chief justice charged the jury thus: "If one tgJces my 
 horse vi et armis and gives it to S or S takes it with force 
 and arms from him who took it from me, in this case S is not 
 a trespasser to me, nor shall I have trespass against him 
 for the horse because the possession was out of me by the 
 first taking," and the reason added by the glossator is "for 
 the first offender has gained the property by the tort." 
 Fitzherbert says "if one takes my goods he is seised now of 
 them as his own goods," and Finch's definition is: "Trespass 
 in goods is the wrongful taking of them with pretence of 
 title, and therefore altereth the propertie of those goods." 
 More remarkable still is the case of John v. Adam in the 
 time of Edward III which was an action in the detinet for 
 sheep. They had been stolen from the plaintiff by a thief 
 who was driving them through defendant's hundred, but, 
 becoming alarmed and to avoid arrest, the felon fled to the 
 church and abjured the realm, and the defendant became seised 
 of the sheep by virtue of his franchise to have the goods 
 of felons. The Chief Justice defeated the plaintiff, holding 
 that there was no trespass as to him since the cj^operty was 
 in the felon. Under the rule whi^ gave all the latter »s 
 goods to the crown what he had stolen went as his. The 
 
612 
 
 effect of this seisin of the wrong -doer was even worse than 
 in the case of land. In the latter instance, though the 
 assize of novel disseisin, the owner had his possession re- 
 stored, but there was hardly any such remedy for the man 
 disseised of a chattel. Through an appeM of larceny there 
 might possibly be a restitution, but that was perilous and 
 might end in the risk of a battle, and so the only available 
 remedy was trespass. But that sifiiply awarded damages and 
 brought no restitution. Even when replevin was invented 
 the wrongdoer had a power to choose between a return of the 
 property and payment of its value. It followed inevitably 
 that the influence of seisin on the law of movables was to 
 postpone the abstract notion of Ownership, and instead to 
 depend upon the dominance of Possession. But observe to 
 what astonishing areas that dominance spread, and what a 
 marvellous strength it developed in Possession. For it waa 
 able to combat and reverse the original and primitive law. 
 Nothing has become more certain than that the law of movables 
 in the earliest ages recognized something closely akin to 
 the abstract idea of Ownership. The owner of cattle could 
 pursue and reclaim them into whatever hands they had passed, 
 and however honestly obtained. There was no defense of a 
 purchase in good faith. That fact would indeed save the 
 possessor of another *s property from the fine inflicted on a 
 
615 
 
 thief, but he had to surrender the cattle to their owner, and 
 seek his remedy on the warranty of his vendor. The claimant 
 thus, out of the physical possession, stood and could only 
 stand on the right to possess, and that right is the chief 
 and vital characteristic of Ownership. It is true that such 
 abstract idea had not openly manifested itself in the con- 
 sciousness of the race, but we can see that it lay hid in 
 the concrete facts whicsh surrounded their dealings with 
 cases of theft: and it seems to us very strange that once on 
 the road to a true conception of property in movables they 
 should have drifted backward to a mere dominance of Possession. 
 Yet that is irtiat happened, and seisin was the rebel baron 
 dethroning Ownership and passing the crown to Possession, 
 This , of course, was a backward step, a break in the line 
 of Evolution, but such retrogressions are common, and while 
 they hinder never defeat the march of the natural process. 
 The later law drew elements from both of the precedent doc- 
 trines. It recognized the dominance of Ownership, but 
 subjected it in special cases to the supremacy of Possession, 
 when obtained in good ffeiith and for a valuable consideration. 
 But seisin again pushed itself into the jurisdictional 
 struggle between the c^ourts of Law and the courts Christian, 
 as to which should try the priest for his crimes. That was 
 one of the points of controversy between Henry and Becket. 
 The king conceded that the court Christian had the right to 
 
614 
 
 try the accused clerk, but insisted that having first arrested 
 the offender the royal court had gained a prior seisin of 
 the criminal and the case, and so had a right to investigate 
 the facts, and if they established guilt should then turn 
 him over to the bishop's court. But the king did not stop 
 at that. He fixrther claimed that the control which his 
 prior seisin of the case gave to him justified him in watch- 
 ing the progress of the ecclesiastical court to see that 
 justice was done; and if by that tribunal the culprit was 
 flound guilty and degraded from the priestly office, then 
 the king's court might resume its suspended seisin, and try 
 the accused becmae a layman and hang him if need bg^ 
 Against this claim Becket bit^^erly protested, resting his 
 argument upon the msixim that no one could be twice put in 
 jeopardy for the same offence; to which the king retorted 
 that the meixim had no application to the case. Indeed 
 Becket 's successor gave a sufficient answer when he said 
 that it was no double trial when what was begun by one was 
 finished by another. Henry carried the constitutions of 
 Olgurendon, and results followed almost comical in the 
 jealous watch of each over the other. The bishop sent his 
 men to the law courts, and when one of their order was ac- 
 cused demanded that he be delivered over to the ordinary, 
 but royal officers followed him into the courts of the 
 
615 
 
 ch\axch, and if degraded from his office, carried him back 
 to the king's court to be punished as it layman. The struggle 
 was a long one, but always in some degree the benefit of 
 clergy remained and worked its abominations for a long 
 period. 
 
 BUt greater difficulties confronted seisin when it 
 came to deal with the bailment of QJhattels. We have said 
 saiat already that Bailment opened the way to Contract. We 
 may say now that it constructed the road to the modern con- 
 ception of Ownership. The common law in Bract on 's day 
 scarcely drew any distinctions between the different sorts 
 of bailment. He himself sought to acclimate the Civil Law 
 in that respect to the English soil suad air, but failed 
 for the time to accomplish his purpose, bfyond pleuiting the 
 germ thought from which the modern doctrine was to grow. 
 What did take root were those features of the ancient law 
 which treated the bailee as owner in any qioarrel with tres- 
 passers. If a wrong-doer disseises the bailee the remedy 
 is his for it is his seisin that is invaded, and the right 
 of the bailor is wholly against the bailee for a failure 
 to return the property. But it began to be seen that this 
 doctrine would not work in so^^ direojfcions. It served 
 well enough where there was a loan for use and the identical 
 thing bailed was not to be returned. Suppose a loan of 
 money. No one ever expected the same coins to be returned. 
 
616 
 
 or when cattle served as money always the same identical 
 catle, and it was not difficult to regard the borrower as 
 owner and the bailor as merely entitled to the retiirn of an 
 equivalent oaim. But suppose a loan for hire. Mark wants 
 a horse of John to use at his plough for a month and then 
 to be returned. The bailee, Mark, becomes sAised of the 
 animal, but is he therefore owner? And what is John? 
 Everybody knows that the bailee is not owner, that the horse 
 is only in his custody; and while it is natural that the 
 bailee should proceed against the trespasser why deny the 
 bailor's right? It becomes evident that somehow the seisin 
 must be regarded as partible, or predicated of both parties, 
 and by the end of the medieval period the notion of an owner- 
 ship divorced from possession came to the surface, and it 
 was held that the general property was in the bailor and a 
 special property in the bailee. And that result followed 
 inevitably from the admission of excuses for a non-return. 
 It was possible to deny the bailor's remedy against third 
 persons while his resort to the bailee was absolute and per- 
 fect but the moment it ceased to be so by reason of per- 
 
 t 
 mitted excuses it became intolerable to conlnue a denial to 
 
 the bailor of redress against a second or third hand, since 
 
 that amounted to a denial of all remedy for the loss of the 
 
 thing bailed. It was Bracton, guiddd by the Roman Law, 
 
 who opened the door to these excuses, and led the way to 
 
617 
 
 remedies of the bailor against trespassers upon the bailee's 
 possession and to that play of astute reasoning which made 
 seisin in effect partible. 
 
 But the realism of the early day , born largely of 
 seisin showed itself very plainly , in the form of the acction 
 of Debt. We naturally expect to find that action an out- 
 growth and expression of Contract, but in that we are dis- 
 appointed. Contract indeed lurked under it, approached, 
 almost came to the surface, and yet was never distinoctivsly 
 present. Observe the form of the writ and the theory on 
 which it went. It is very like the wtx writ of Right 
 which a freeholder uses to recover his land. The debtor is 
 commanded to render up a hundred marks whereof the plaintiff 
 complains that the defendant unjustly deforces him. As a 
 suitor can be disseised of his land so a (ftreditor can be 
 disseised of the money due to him. It is his money, — that 
 is the theory, — his money the possession of which the debtor 
 keeps and refuses to deliver up. Plainly, the action does 
 not rest on a promise at all. There is no assertion of any, 
 it is a duty not a promise that underlies, and the realism 
 born of seisin rules the writ. We say the realism for there 
 were only five cases in which it was generally used, viz;- 
 money lent, price of goods sold, arrears of rent on a lease, 
 and a sealed bond. A mere promise — rudum — naked«punclothed 
 with a reality — ^will not do. The Norman cuatumal, now be- 
 
618 
 
 lieved to have been derived from the English law, states it 
 pithily thus: No one is made debtor by a promise unless 
 a legal causa of the prteiise precedes it: that is to say, 
 debt grows out of the facts constituting the consideration and 
 the duty thence arising: a result which throws a side-light 
 upon Judge Holmes' theory of consideration, which Pollock 
 and Maitland disapprove, but which we are more and more in- 
 clined to adopt. 
 
 What was thus true of the action of Debt as fomded 
 on the wrong of a disseisin was frqually true of StxBXS 
 Detinue, of Replevin, of Trover, of Trespass guars clausum . 
 All of them, influenced, more or less, by the seisin of the 
 land law, went upon the ground that the claimant's rightful 
 possession had in some manner been disturbed or destroyed 
 and should be restored or compensated by damages. It was 
 not until Trespass broadened out into Case, and the action 
 of Assumpsit became developed that the realism of seisin 
 began to lose its hold. 
 
 So much for the influence of seisin in the domain 
 of law. Wft have not exhausted the subject but have given 
 enough to bring into view the persistent realism of the 
 ancient law, and the reason why every known action was an 
 action of Tort. For the basis of every such action is never 
 a promise, but always a Duty growing out of actual facts and 
 real relations. That Duty was obviously a conception of 
 
flifi 619 
 
 the general morality slowly studying each situation and 
 determining the view of it which the best interests of the 
 parties and the common welfare of the people required. 
 That view in its origin never rose above or drifted beyojid 
 the actual and palpable facts, and necessarily the law of 
 the time was thoroughly realistic and had its roots in the 
 prevailing morality. 
 
 But dominant as seisin was over all branches of the 
 law it found its match in the doctrine of Uses and yielded 
 to an inevitable destruction. We must anticipate somewhat 
 in order to trace the progress of that downfall. 
 
 The effort to destroy Uses by executing them proved 
 an utter failure under the rulings of the Court and 
 especially through the protection of Equity. By the name 
 of a Trust the Use remained, and it survived in a whole 
 group of future estates which owed their existence to a 
 single judicial construction. It was held that the Use 
 could only be executed when the statute and the Use came 
 together, that is could operate effectually at one and the 
 same moment. This opened the door to a construction of 
 Uses planned to take effect in the future and therefore to 
 remain unexecuted and of course undestroyed. H^nce arose 
 shifting uses, springing uses and contingent uses creating 
 a group of equitable estates running parallel with and 
 
620 
 
 more or less imitating the corresponding network of legal 
 estates. But something else followed this construction! 
 jt furnished opportunity for new methods of land transfer 
 which operated secretly, without the open evidence of 
 seisin, and, by a sort of statutory magic, building its 
 castles in an instant and in the dark. A desires to convey 
 land to B. He makes a feofment to C to the use of B. He 
 gives C the seisin but at that instant the statute and the 
 Use come together and the Use is executed in B and turned 
 into a legal estate in him without the publicity of seisin 
 or any obvious evidence of his title , The mischief went 
 further. It led eventually to three forms of conveyance, 
 all of which contemned the seisin and were effectual with- 
 out its aid. One was the cov^emant to stand sdized to the use 
 of the intended donee, founded on a consideration of blood 
 or marriage. The law at once executed the Use and so vested 
 the legal estate in the beneficiary. Another was the lease 
 and release. The vendor first executed a lease for a year 
 to the vendee and put him in possession, guid then released 
 or quit-claimed to him all his own right in the land , and 
 so converted the estate for a year into an absolute fee. 
 And again, there was the Bargain and Sale. The vendor 
 bargains to sell the land to the vendee who pays the agreed 
 price, and a Use immediately results to horn and the statute 
 executes the Use, and so the legal estate is transferred. 
 
621 
 
 But all these methods had the vice of secrecy. The man put 
 in open seisin lost ownership at the moment of gaining /it 
 and to a concealed or unknown owner. No purchaser could be 
 safe who relied merely on the appearance of seisin which 
 might prove to be only the cover of a hostile title. To 
 redress this evil a new statute was passed which ordained 
 that Bargains and Sales of lands should not enure to pass 
 title unless made by indenture and within six months enrolled 
 at Westminster or with the keeper of the rolls in the 
 county. And so step by step the coarse and rude method 
 was displaced by the operation of the recording acts. The 
 war -glove surrendered to the peaceable pen. That was the 
 end of seisin. As to land it was supplanted by the recording 
 acts; as to chattels by Contract. 
 
622 
 
 XIZ. 
 
 LORD AND VASSAL. 
 
 It is a truth both of Nature and Humanity that 
 everything grows because everything decays, and, so far as 
 our knowle^le extends, decay is the condition of growth; 
 lies in wait for it until it has reaoiied its full fruitage: 
 and wherever, among nations and institutions and in the 
 wavering line of social progress, we see something dying we 
 may be very sure that it is but the prelude to something 
 else which is very much alive . This common fate , — this in- 
 evitable end at last came to feudalism, and England has 
 been busy ever since in destroying its traces, and cultivat- 
 ing the new upsp^ringing growth of better law. The best 
 days of the old system had patient and industrious illustra- 
 tors. We have spoken already of Glauvil and Bracton, and 
 should add p a few words of two books that followed themj 
 those of Britton and Fleta. Theirs are two names to which 
 we can fit no mortal bodies. Who and what they were we do 
 know: we can scarcely even guess. They wrote their books 
 and died. The books live: the writers are unknown dust. 
 Britton's work follows the lead of Bracton, sometimes very 
 closely. One of his merits is that he wrote in the law- 
 
623 
 
 French which had become the language of the courts; and 
 while he lacks the logical capacity of his master, and 
 that master's invariable citation of authority when such 
 was to be found, his further merit is that he states the 
 leggd propositions of the day in separate chapters, of which 
 there are one hundred and twenty-eight, and with great dis- 
 tinctness and precision. Britton evidently was a confirmed 
 royalist. He puts all his law in the mouth of the king. 
 It is 4^ law because his majesty ordains it. I'or whatever 
 affects the Crown he shows a painstaking affection. And 
 yet he often makes clear what in Bracton was cloudy, and 
 omits always what he does not understand. The work of 
 Fleta is in Latin, and, in spite of its bold title of a 
 Commentary on the English Laws, is merely a compact epitome 
 of Bracton, except that it serves as an appendix by citing 
 and explaining many later enactments. Its chief value 
 lies in that fact, and many years after, Coke turns to it 
 for its references to older laws as constituting a valuable 
 commentary upon them. It purports to have been written in 
 the Fleet prison and took its neune from that fact. The 
 writer, probably, was some lawyer or judge incarcerated 
 for debt or crime who devoted his hours of solitude to the 
 st^dy of his country's laws. 
 
 Still another work followed over which there has 
 been much of controversy and no little difference of opinion, 
 
S24 
 
 Ite title is "The Mirrour of Justice" by Andrew Home. 
 
 We know nothing about him as an individual. His book is 
 
 cited as authority by both Coke and Bacon, and whoever 
 
 reads Mr. Pinlason's edition of Reeve's History of the 
 
 English Law will be struck in the editor i-s notes with his 
 
 mototonous and 
 constant appeals to the Mirrour. It becomes sixdksjUBSXXxxiA 
 
 aEStXKB almost wearisome. Hone was evidently not a royalist 
 
 like Britton, but shows the temper of an independent Radical. 
 
 At the close of his book he devotes a chapter to what he 
 
 calls the abuses of the law, and specifies one hundred and 
 
 fifty-five of them in detail. When we read that the first 
 
 and chief abuse is that the king is above the law whereas 
 
 he ought to be subject to it, that it is an abuse that 
 
 parliaments are not held as they should be, that justice 
 
 is delayed in the king's courts, that a man should be forced 
 
 to answer to the king's suit without appeal or indictment, 
 
 that remedial writs are salable, and the like, we feel almost 
 
 as if the time of Cromwell had come, and here was a man 
 
 urtio could march with a match-lock on his shoulder to guard 
 
 the execution of ±ii a faithless king. And yet, radical 
 
 as the writer is, we see how conservative habit and custom 
 
 will make a man, when we find him also complaining that the 
 
 miracle of God, that is the ordeal, was not allowed, and 
 
 that trial |jy battle was not permitted in personal actions 
 
 as well as felonies. Curious as the book is, modern investi- 
 
625 
 
 gation has pronounced it unreliable and. misleading and not 
 to be trusted as authority, while yet it sometimes helps 
 in the solution of doubtful and difficult problems. 
 
 But none of these works betrayed any consciousness of 
 the inherent wegLkness of the feudal system, or of the elements 
 already engaged in sapping its foundations. Those elements 
 were eilways busy, and the Barons fought against them, for a 
 long time with success, but lost the battle when it seemed 
 most thoroughly won. There were three causes '!riiich, left 
 to themselves, tended to disintegrate the military tenixre, of 
 which it is best ot speak separately because along these 
 lines we shall be able to trace the changes of the time. 
 They were Subinfeudation, Scutafee and Inheritance, all tend- 
 ing to turn the feudal tenures into that free Socage, ex- 
 amples of which already existed, and which in the end was 
 destined to displace the fief utterly and forever. 
 
 There were two forces which came into collision: the 
 interest of the feudal lord to prevent alienation and save 
 the land-burdens, and the interest of the tenant to make 
 alienation free and shake off the existing burdens. There 
 were several methods of such alienation. We make the neces- 
 sary explanation clearer and plainer if we state the facts 
 of an example and describe two of the methods in actual 
 operation. Here is the imaginary manor of Hatton whose 
 
626 
 
 broad acres are held of the king to whom homage and fealty 
 has been sworn, and to whom the Baron owes the service of 
 nine other knights besides himself to follow the royal 
 standard in battle. The Baron holds a portion of the land 
 about his castle and within range of his retainers in de- 
 mesne, and that is cultivated for his use largely by his 
 villeins, who hold at his will and as tenants in villeinage 
 their own small fields, but the rest he chooses to enfeoff 
 reserving the usual feudal services. He gives nine such 
 parcels to nine knights each holding a knight's fee. These 
 have done homage for their land to the Baron. According to 
 Bracton, the tenant puts his hands between the hands of the 
 lord and says: "I beccme your man of the tenement that I 
 hold of you, and faith to you will bear of life and death 
 and earthly worship, and faith to you shall bear against 
 all folk saving the faith which I owft to our lord the king." 
 This ceremony bound the lord and man with the feudal tie. 
 The former owed warranty and protection to his man, and the 
 latter owed loyalty and service to his lord. The incidents 
 of wardship, of aids, of reliefs, of escheat at once at- 
 tached. How anything that menaced this close relation put 
 the whole system in danger. The lord of Hatton saw — what? 
 He saw one of his tenants desiring to sell and alienate his 
 knight's fee. By one process there might be little harm 
 in it. That was called Substitution. Number One of the 
 
627 
 
 nine knights alienates his fee to John. The Baron formally 
 accepts John as tenant and he does homage to the Baron and 
 all goes on as before. One man has been substituted for 
 another. That is all: the services are still rendered on 
 s^if land. But here springs up the serious and vital question 
 whether the tenant, number one of the nine knights, may sub- 
 stitute John in his place without the lord's consent. If 
 he may he can sell to the lord's worst enemy, to some shift- 
 less or lazy lout who will merely skin the land and leave 
 it a barren wreck, to some noisy agitator who works only 
 with his tongue, to some bully or thief who brings disorder 
 to the manor and business to the court baron. And how does 
 that possibility harmonize with the oath of fealty and the 
 close relation which it implies? Evidently, the lord is 
 likely to make his consent essential to the Substitution 
 as, even in our day, the prudent landlord stipulates in 
 his lease that there shall be no sub-letting without his 
 consent. But, on the other hand, what becomes of freedom of 
 alienation as it respects the tenant's holding? And is he 
 not likely to say, — ^you can sell your manor and put over us 
 a new lord, perhaps some ugly military brute, without oxa 
 leave, and why should not we sell without yours? Are we 
 who are freemen to be turned into villeins and made slaves 
 of the soil? The^se are some of the troubles of Substitution, 
 but there were others. Suppose that number one of the knights 
 
628 
 
 in making hie feofment to J ohnT reserves to himself only 
 an annual gift of a hen or a pound of pepper and then dies 
 leaving an infant son. The wardship of that eon founded 
 on the original relation is worth nothing because the ward 
 has nothing. That, as we read it, is Maitland's suggestion, 
 to which it may be answered that the lord obtains on the sub- 
 stitution the possible wardship of the chjjldren of John, 
 the new tenant. But suppose that number one of the kmights, 
 instead of selling to John enfeoffs an Abbey in perpetual 
 alms. Then most of the services are gone, for the feofee 
 never dies, ne-wer marries, and has no heirs. The consequent 
 services are lost, and those that remain clinging to the 
 land the Abbot is quite likely to repudiate. So there were 
 troubles ssisxais enough even about a simple substitution, 
 but which had to be borne or all freedom of alienation be 
 forbidden. 
 
 But now suppose that John , who by an agreed substitu- 
 tion holds of the Baron, sells to George reserving to him- 
 self homage and the feudal services. He becaomes at once 
 lord to George. Then suppose George to sell to six free- 
 holders in each case reserving fealty and services to him- 
 self. That is Subinfeudation. The freeholders hold of 
 Geogge who holds of John who holds of the Baron who holds 
 of the king. Consider the steps of this feudal staircase 
 down which the land descends without ban/isters to steady 
 
629 
 
 itself. The king is lord paramo-unt , the Baron ie chief 
 lord, auid John and George are mesne or middle lords. But 
 what has happened to the Baron? We can imagine him growl- 
 ing through his beard at the peril which threatens his 
 services. There had been a way to reclaim them. That was 
 by Distress of the goods on the land, — taking Nams as it 
 was called. This was a species of self-help which %e have 
 seen in many forms in ancient law, and now lends its aid to 
 the feudal lord. Even without judgment, where services are 
 in arrears, he can go upon the land and seize and carry off 
 the goods. But he can hold them only as a pledge. He can- 
 not sell them J he cannot use them; they are not his. Their 
 loss only worries the tenant into payment. What then does 
 the tenant do? He needs his corn and his hay: must have 
 them or his stock will starve. Now comes a writ that the 
 modern law knows about: the writ of Replevin. We are on the 
 spot where it was born. With this in his hands he re-takes 
 his property from the distrainor, but has to give pledges 
 or security that he will contest the distress and pay if 
 judgment goes against him. His action is trespass, but with 
 the goods on their value held as stakes in the game. That 
 is Replevin. It is the same thing now; only broadened and 
 going teyong the relation of landlord and tenant. The Dis- 
 tress, too, came down to our time. What was distress for 
 
630 
 
 services became distress for rent, and because, as we shall 
 ere long see, rent took the place of services. Distress 
 extended to the case of cattle taken damage feasant and 
 impounded as pledge^ for the injury done. But the Baron had 
 another remedy for his services withheld, and whan no Nams 
 could be had. It was a remedy admitted to have been de- 
 rived from the Civil Law. The Romans recognized a tenure 
 known as emphytensi s ; which was a conveyance for an un- 
 limited term, the tenant paying a specified rent or render- 
 ing certain agreed services. That tenant, the emphyteut a^ 
 makes default in his payments or withholds his services. 
 Justinian ruled that such tenant might Ite ejected eifter 
 three years of such defaiilt. In the canon law the period 
 became two yeairs. The English law copies that remedy ex- 
 actly. In the time of Edward I a statute was passed allow- 
 ing an action known as cessavit perbiennium , by means of 
 which the tenant in default for two years was ejected and 
 the lord restored to his title in demesne. Coke insists 
 that the remedy was very much older than the statute. 
 
 But if the Baron, by one or the other of these methods, 
 saved his services he might lose his aids and marriages 
 and wardships, fat pickings which kept him sleek and the 
 wassail bowl full. And so he carries his grievance to the 
 king and his parliament to check alienation, and cites Magna 
 
631 
 
 Charta, broken so often that it had matoy times to be mended, 
 #iich had imposed a disregarded restraint; and the tenants 
 go to the king, saying, — the land is ours: why shall %e not 
 sell it? Why axe we, freemen and freeholders, to be bound 
 to the land? Naturally, the collision ended in a compromise. 
 Both parties won. Under Magna QCIharta the tenant was for- 
 bidden to alienate except on condition that he retained 
 enough of the land to answer for the services due, but this 
 condition had been utterly disregarded. The questions how 
 much in a given case should be-^left, and what was sufficient 
 to secure the services were sure to be wrangled over and 
 provoke disagreement and disorder. The tanante would have 
 none of it, and now they insisted on full freedom of aliena« 
 tion. They got it, but on condition that the alienee should 
 hold, not of his immediate feoffor, but of the chief lord. 
 That is. Substitution always, and never more Subinfeudation, 
 This result was accomplished by the statute known its quia 
 emptores wfeich laid the foundations of free aliaination, and 
 is frequently cited even yet in legal arguments and judicial 
 opinions. It begins with a recital of the mischiefs which 
 it hoped to remove and then goes to the remedy. "Forasmuclj^ 
 says the act, "as patchasers of lands and tenements of the 
 fees of great men and other lords have entered into their 
 fees to the prejudice of the lords; these purchasers having 
 
652 
 
 bought the lands and tenements from the freeholders of such 
 great men to hold of their feoffors and not of the chief 
 lords of the fees; so that the chief lords have lost iheir 
 escheats, marriages and wardships of such lands and tenements, 
 which was a grievance to the great landholders of the king- 
 dom, who thought themselves in a manner disherited by such 
 defalcations in their seignories; it is ordained that in 
 future it should be lawful for ev«ry freeman to sell at his 
 pleasure his land or tenement or part thereof, so that the 
 feofee should hold the land or tenement of the chief lord 
 by the same services or cuatoms by whScJi the feoffor held 
 it." The effect of this act was to decree that there should 
 be no more Subinfeudation but always and in every case a 
 Substitution. The Baron saved his services but, subject 
 to these, the tenant of a fee simple gained full freedom of 
 alienation. The sole remaining problem for him was to shalce 
 off the services and end the incidents. 
 
 The act added a significant provision that it should 
 not authorize feofments in mortmain. These had been another 
 sort of alienation which threatened the integrity of the 
 feudal system. All over England were scattered religious 
 houses, monasteries, convents, nunneries, abbeys, priories, 
 and the like, occupied by swarms of monks and priests who 
 did no work but told their beads and drank the best ale in 
 the land. We read that in the middle of the ninth century 
 
633 
 
 jEkKzgcxmLKxatixflcxkkK , 
 
 there was due the monks of Canterbury for a day^e feed for"y 
 
 eesters of ale as company for sixty loaves of bread: and 
 they of Winchester required from each family on the manor, 
 among other things, six mi t tan of ale. Undoubtedly there 
 were many who led holy lives, who denied themselves all 
 luxuries to give to charity, and did honor to the religion 
 which they professed. When, at a later period, Cromwell 
 subjected them to a pitiless visitation, prelimineury to 
 their general dissolution, his commissioners told a terrible 
 story of their vice and iniquity, which may have been ex- 
 aggerated, and the whole of which it is not necessary for us 
 to believe. Enough was true to awaken a bitter hostility j 
 and yet the war to which they in the end succumbed began 
 in quite other causes than the alleged curruption of their 
 morals. Their characteristics threatened the existence of 
 the feudal system , and the very foundations of the military 
 tenure. They were corpofate bodies having perpetioal succes- 
 sion. That fact is distinctly recognized in the Latin of 
 Fleta. Their lands, therefore, could never escheat for want 
 of an heir; there were no marriages from which the lords 
 CQuld get a revenue; and no wardships, for the corpQration 
 was never a minor. All these incidents disappeared from 
 lands devoted to Religion. That was not all. The eccelsias- 
 tics often held by a tenure known as Frankalmoin. The land 
 
634 
 
 was given them "in free, pure, and perpetual alms", and, as 
 a rule add in general, was free from any secular service. 
 It ceased to be feudal in any true sense of the term, and 
 became a fee held in perpetuity and burdened with no rights 
 of the lord. The twelfth century was full of such auDxstxs 
 monastic orders. Land given them was described as held in 
 mortmain , by a dead hand. Many explanations of this word 
 have been given but among them all we prefer that of Black- 
 stone, founded upon the suggestions of Coke, that the monks, 
 being regarded as dead persons in law, whatever was conveyed 
 to them was deemed to be held by a dead hand. The common 
 law had no use for a monk: it treated his vows as death 
 and his cell as a grave. That civil death however was a 
 fiction which had its limits. On the one hand when he pro- 
 fessed religion his heir at once inherited as if he had been 
 naturally dead; if he had made a will that will took instant 
 effect; if property descended to him it passed him by and 
 went to the next heir. Monks and nuns and friars alike could 
 have no property, and were slaves of their abbots. But, 
 though dead, they were very much alive when it came to sins 
 and crimes and wrongs, and the law had to take back ixflaat 
 it said and deal out punishments. Now their houses became 
 numerous and they swallowed great tracts of land. Hallam 
 tells us that at one period they covered not less than a 
 fifth of all the lands of the kingdom. The death-bed with 
 its fits of repentance preiided over by the priest yielded 
 
655 
 
 plunder in profusion. Their titles took away and ended the 
 usual baronial rights. Not always: for abbot or bishop 
 sometimes held knight's fees and followed the king's stand- 
 ard to the wars. We read that the Abbot of Peterborough 
 owed the service of sixty knights, and he of St. Edmunds 
 forty, but those were knights fees and not held in Prankal- 
 moin. In the main the religious lands were burdened with 
 no charges, except spiritual, such as masses for the souldfi( 
 of the dead. At this state of things both the barons and 
 the people murmured. The king began to forbid and the 
 Clergy to evade: and thus arose that long wrestle between 
 the brains of the Castle and the Cloister which has bLhbb 
 done so much to shape the English law. The first blow came 
 from the Barons. In the time of the third Henry it was 
 made a provision of Magna Charta that "it shall not be lem- 
 ful from henceforth to any to give his lands to any religious 
 House and to take the same land again to hold of the same 
 House." Such a transfer was called a QDommendation, and, while 
 permissible between an owner and the feudal lord whose pro«. 
 tection was sought, was thus forbidden to the religious 
 body. Next the act commanded: "Nor shall it be lawful for 
 any house of Religion to take the lands of any and to lease 
 the same to him of whom he received it." That was another 
 form of Commendation and equally forbidden. Then came this 
 
636 
 
 final and sweeping clause: "If amy from henceforth give his 
 land to any religious house, and thereupon he convict, the 
 gift shall be utterly void and the land sha^ll accrue to the 
 lord of the fee." But the Cloisters were full of Canonists 
 trained in the subtleties of the Civil Law, and an over- 
 match for the bluff Barons who knew more of the sword than 
 of letters. At once hundreds of sharpjeyes scanned critical- 
 ly every word of the act, and hundreds of shrewd brains were 
 studying how to avoid it. There were lands already holden 
 of themsleves but worth far more than the services they re- 
 ceived, and they simply bought out the tenant and extin- 
 guished his rights. Where that was not possible they toolfe 
 a lease from a sick sinner or frightened penitent for a 
 tltDusand years, and quietly smiled at the evaded law. But 
 they were met with the statute of Edward I, long and parti- 
 cular, forbidding them to take "by any craft or engine", 
 so that "the land should anywise come into mortmain." That 
 was broad language but there was a way out of it, A donee 
 desired to give land. The House began a suit against him 
 setting up a fictitious title. We have a right to get back 
 our own — have we not? — said the sly civilian. The defendant 
 made default and judgment went for the monastery, and on the 
 heel of the judgment came the possession. This was what 
 became known as a Common Recovery, which played a large part 
 in the later conveyancing. The Clergy were too shrewd to 
 
637 
 
 employ the agency of a Fine which already was in use and 
 gave the strongest title known, for that was a concord made 
 in open court under the supervision of the judges and entered 
 upon the Rolls ,, but which so required the public assent of 
 both parties as to make it unfit for the desired purpose. 
 Both the Fine and the Comion Recovery are admitted to have 
 been suggested by the Roman procedure known as ^n jure eessi o 
 which was a collusive recovery of property by an action. 
 Maine says that this artifice was even older than Rome and 
 known in the Greek law. The English courts upheld these 
 Common Recoveries, and decided that they involved no viola- 
 tion of the stuiute : and so the process of putting the land 
 into dead hands went steadily on. Again legislation inter- 
 vened. It struck at the collusive character of the Recovery, 
 It gave to the lords a writ of Quale Jus by which it was 
 left to a jury to decide, in case of a default, whether it 
 was collusion, and whether the religious body suing had or 
 had not a true and honest title. 
 
 But the ecclesiastics were equal to the emergency, 
 and borrowed again from the Roman law, and shaped and used 
 a divice which the civilians had invented. We may recall 
 the descriJ)tion heretofore given of the cases in which the 
 Roman desired by his will to give a legacy to one incapable 
 of taking it, and so gave it to one who could take, but 
 burddning the gift with a use for the benefit of the person 
 
658 
 
 really intended. There was no canonist so blind as not to 
 see what a way out it furnished; and so they had their 
 grantor convfy, — ^not to them who could not take, — ^but to a 
 chosen grantee who could, to their use. They took no land 
 any more. 0, no, honest sould that they werdJ — ^they only 
 took the Use. That was the way in which Uses came into the 
 Law. Some modern authorities trace the Use in the older 
 law through the phrase ad opus employed often as a synonym 
 for ad usus . We have heretofore found it in the Salic law 
 where, after a rude fashion, it furnished a method of ap- 
 pointing an heir: and Maitland cites also the case of the 
 Franciscan friaxs who were beggars by religion and could 
 own no property and i^toose homes were held for them by the 
 boroughs or cities, So much is true; and yet it needs no 
 argument to assure us that the canonists, fighting their 
 battle with the king, took the weapon of a Use from the 
 Civil Law, ready made to their hand so far as the transfer 
 of title was concerned, but, as was their invariable way 
 of dealing with the Roman spoil, improved what they took 
 and broadened it in the resulting consectuences of that 
 transfer. And so they had their penitents convey, not to 
 them, but to some third person for the Use of the Convent 
 or Monastery; a Use first protected by the Confessors and 
 then by the Chancellor. 
 
 These were busy days for the lords. They attacked 
 
639 
 
 Uses. In the reign of Richard II a somewhat drastic law 
 
 was enacted which required all persons who were holding 
 
 lands to the use of religious people to get the assent or 
 
 license of the Crown or the lords, or else to well such 
 
 lands to some other Use under penalty of forfeiture; and 
 
 that thereafter no feofment to the use of religious or 
 
 spiritual persons of which they should enjoy the profits 
 
 it 
 should be made under the like penalty. At the same time ^ 
 
 occurred to the law makers, who were hunting down mortmain 
 as they hunted their foxes, that there were other bodies 
 which had perpetual succession, and in whose hands land 
 might forever lie dead, such as towns, cities and boroughs 
 and even guilds and fraternities, and the statute de re>- 
 ligioBlSf. which has. been described was made binding on 
 them. Here began that control of the State over Corpora- 
 tions which in our day so often limits thdir capacity to 
 take and hold property, and which in the case of charitable 
 emd educational institutions sometimes robs them of their 
 legacies for the benefit of collaterals. Were the canonists 
 beaten? Not yet. It took a long time to get to the end 
 of their devices. They married their villeins to heiresses, 
 and, owning the property of thdir serfs, in that way gathered 
 in the lands of the wives; but the Court broke up that de- 
 vice by holding that lands thus obtained were held in viola- 
 tion of the statutes of mortmain. After all the Clergy had 
 
640 
 
 one final resource. They could buy of the king whose money 
 hunger was always insatiate a license to take and hold what 
 they coveted. TUhen everything else failed bribery was a 
 sure resort. They divided the plunder ^ Sometimes blessed 
 the land as a cemetery. 
 
 We have spoken about Uses as one of the results of 
 the long wear between the Barons struggling to save their 
 feudal rights and the Churchmen eager to shake them off; 
 but have not yet said what a revolution they worked in 
 the English law and what a com.plicated system they int^ro- 
 duced. We are close upon final evolution of the Iguid law 
 and it ought not to be difficult to understand the somewhat 
 singular process. See what the subtle and ingenious doctrine 
 of Uses did. We have patiently explained how devoted the 
 common law was to livery of seisin, and how essential that 
 open and public ceremony to the safety of the people. But 
 here comes a death blow to the dominance of seisin, for 
 by means of a Use, while the seisin is in one man, the 
 real and beneficial ownership is in another without any 
 livery of seisin to him. As a consequence land which was 
 not devisable by will became so through the devise of a 
 Use. Beyond that the cestui que use, — the beneficiary, — 
 ©scaped all the feudal burdens. The lord lost his escheats, 
 his heriot, his aids and reliefs; the king his forfeitures 
 and fines; the husband his countesy; the wife her dower; 
 
641 
 
 for aftl these were dependent upon the seisin v4i ich the Use 
 contemned, and which could only attach to the bare or un- 
 fruitful legal title. And the new doctrine went beyond the 
 religious. A man could not convey to his wife, but now it 
 is easy to convey to a third person for her use. A wife's 
 land was the husband's while he lived, but she could before 
 marriage have it conveyed for her use, and hence a thicken- 
 ing swarm of marriage settlements. Implied uses came in. 
 Here is aBaxgain and Sale. A sells land to B who pays the 
 purchase price but does not go into possession, yet behold! 
 there is a resulting use and A holds the land for the use 
 of B. No wonder that the convenient artifice spread. Then 
 as usual came legislation aimed at the growing development. 
 Under Henry the Eighth, — that bluff Harry, — much married and 
 soon tired, — there was enacted the statute of Uses, long 
 and crabbed and beginning with a pitious complaint reciting 
 the resultant evils of the lawyer's ingenuity, and then strik- 
 ing what was deemed an effective blow at the subtle doctrine. 
 It was decreed that the seisin and possession should follow 
 and attach to the use; should desert the grantee who held 
 the haxe legal title and vest in the beneficiary who had 
 the use. In other words the statute executed the use, and 
 so clothed the equitable with the legal right. Seisin is 
 becoming a thing that travels. And then the lords laughid, 
 but laughed too soon. It is never wise to laugh at a 
 
642 
 
 Canonist, ffcere is always a last arrow in his quiver and his 
 aim is deadly. He began by limiting a use upon a use. A 
 conveys to B to the use of C to the use of D. But the 
 courts frowned upon that. Look at Tyrrell ^s case in the 
 time of Philip and Mary, — that sour Philip and bloody Mary 
 who served God by killing dissenters. The case will be 
 found in Dyer's Reports page 155a. The Chief Justice de- 
 clared the second limitation void because, as he said, a 
 use could not be engendered of a use. Of course. But his 
 lordship reckoned without the chancellor. That officer 
 began to look at the second use which the law judges made 
 null and void, and to say that the just and obvious inten- 
 tion of the settlor ought to prevail; and so he ruled that, 
 while the first use was executed in C and turned into a 
 legal fee in him, he nevertheless held that legal fee in 
 trust for D: and so C was trustee for D who was cestui 
 que trust or beneficiary and Equity would enforce the trust. 
 Thus we have the law of Trusts followed by that of Powers, 
 and once more, in spite of the statute of uses and the com- 
 placent confidence of the lords, we see again a recognized 
 equitable estate to which no services attach. 
 
 The same result flowed from what was known as Frank- 
 marriage, though to a much smaller extent, and0 dependent 
 upon the holders of estates themsleves. The lord could 
 
643 
 
 give to his daughter, about to marry, lands free from all 
 services, and only owing fealty, until euch land has de- 
 scended to the fourth degree of descent, at which date the 
 right to services would revive against hiui who happened to be 
 the tenant. Obviously at so late a date, and when the 
 land had been free for several generations, the original 
 burden would often be forgotten, and the land acquire a new 
 tenure. But in both theae cases, of gifts in Frankalmoin 
 and in Frankmarriage , a difficulty was encountered in the 
 fact that the donors might be holding of a superior lord to 
 whom services were due, which boiaid the land and could not 
 be shaken off by the mere proceiss of giving it away- To 
 meet that emergency the donor was required to assume upon 
 himsftlf the outstanding liabilities and protect his donees 
 against them, and for this purpose there was a bundle of 
 writs known as writs of mesne, of a preventive character, 
 serving in some fashion as bills quia timet , and thro^ugh 
 the operation of which it was possible to compel and unwill- 
 ing donor to keep his gift free from a threatened biarden. 
 And BO the feudal lord was kept busy in resisting the ef- 
 forts to shake off the services which were his due, and upon 
 which he largely depended for his support. 
 
 Let us get back to him and his crop of troubles, 
 and in doing that say a few words about Scutafee which we 
 named as the second of the causes tending to the decay of the 
 
644 
 
 military tenure. What that Scut age really was, on what 
 legal or royal basis it rested, how it was levied and the 
 consequences of such levy are inquiries difficult and al- 
 most impossible to answer. Some facts, however, we know. 
 It was levied not regularly but occasionally, and only about 
 forty times in all. Its first definite appearance seems to 
 have been in the reign of Henry II in the twelfth century. 
 Hume says he imposed on the knight's fees a scutage of one 
 hundred and eighty thousand pounds, but questions that 
 astonishing amount in a note which throws distrust upon 
 the authority which he followed. Round shows us that the 
 acctual levy even including an assessment aft the church was 
 only 5570 pounds as proved by the Exchequer rolls. Green 
 gives us a different version. He says the levy was a blow 
 at the baronage because it was levied not upon the nobles, 
 but directly upon their tenants, and was in truth an Assize 
 of Arms, founded not upon the law of the feudal relation, 
 but upon the general duty of all the jjeople to arm for the 
 defense of their country. In that view it was notice to 
 the Barons that the king was not dependent upon them and 
 their sullen and unreliable services, but that, with the 
 money of the people in his war cheist , he could supply him- 
 self, as he did, with better and braver soldiers. Groldwin 
 Smith, in his Political History of the United Kingdom, a' 
 
645 
 
 book which is marvellous for its lucid and clean precision, 
 gives a similar account of this first scutage , saying that 
 the king re-organized the old fiard or national ^jiilitia by 
 which system eve ly citizen was required to provide himsftlf 
 with a coat of mail, helmdt, shield, and lance, and that 
 Henry, availing himself of the unwillingness of Ithe Barons 
 to march abooad, introduced the payment of scutafee or 
 shield-money in place of the feudal services and so hired 
 Breton and Fleming troops for his fight at ffoulouse . 
 These views indicate a measure qaite apart from and inde- 
 pendent of the services due from the Barons as holders of 
 knight's fees. To describe those services let us recur to 
 our imaginary manor of Hatton, nfcose lord holds of the king 
 by the service of ten knights. Each of these with horse 
 and armor was bound to serve under the rayal standard for 
 forty days at ills own expense, and if detained longer by the 
 exigencies of the wftr then an additional forty days at the 
 expense of the sovereign. Obviously this was a very unre- 
 liable service. A war could not often be fought out in 
 three months and there was much of question whether service 
 out of the kingdom could be required. Besides the Barons 
 were always ieeilous and quarrelsome, and likely at any 
 moment to fight each other, or withdraw from the field for 
 some slight or fancied offense. It is not strange, there- 
 fore, that the king levied scutage directly upon the tenants 
 
646 
 
 to furnish him the means of hiring troops from abroad: but 
 that does not aCDCount for other facts which we know to 
 have existed. There were cases in which for disobedience 
 to the royal summons the Baron was not only compelled to 
 pay scutage in place of his men who failed to appear, but 
 also was heavily fined by the king for neglect of the duty 
 charged upon his land. Maitland tells uJ how, when a 
 scutage of two pounds was imposed, one abbot having two 
 fees paid not four pounds but ten, and another for his 
 fifteen fees not forty-five marks but one hundred, so that 
 the fine and the scutage were two quite different things* 
 We futther find the Barons after aaich payment procuring a 
 warrant from the king to levy scutafee upon their tenants 
 who had refused or escaped the liability to appear in arms,, 
 and for whose neglect they had been compelled to answer. 
 It thus becomes apparent that scutafee vibrated, between two 
 horns of the arc: it was now in the nature of a royal tax, 
 
 and now in that of a term of land tenure: due to-day in 
 cash from the people, due to-morrow in men from the knight's 
 fees, and interlaced and confused beyond our effort to unrawel. 
 The difference shows itself, however, in the fact that Henry 
 used his hired troops for his wars in Normaddy, and never 
 brought them into England except in the single emergency 
 of a very dangerous situation. The foreign wars were fought 
 
647 
 
 out by his mercenaries paid from a scutage levied on the 
 
 people, while for his battles at home he called out his 
 
 Barons whose services were charged on their lands. But 
 
 all the time one thing is becoming more and more apparent. 
 
 knight ' s 
 The change upon the xdczik±±z fees is beginning to be thought 
 
 of and expressed in shillings and marks and pounds. The 
 
 mesne lords are constantly saying that their yeomen 
 
 can plough but not fight, and that scutage must leave them 
 
 at home. And this tendency was helped by the process of 
 
 Subinfeudation. That had in many cases divided upj^ the 
 
 single knight's fee into much smaller parcels. In the case 
 
 we supposed six freeholders had become owners of a single 
 
 fee. They were not fighters except with fists or rustic 
 
 staves: they did not want to go to the wars, and would not 
 
 leave their fields if they could shun the necessity; and even 
 
 if 
 
 f± willing to go it was edways a question which should do 
 
 the duty and how it should be apportioned. There were some 
 
 knight's fees which had become divided into not less than 
 
 twenty-four different tenancies, so that each freeholder 
 
 owed, as the condition of his tenure, one twenty-fourth 
 
 part of the service of a knight. Shall each go and serve 
 
 two days? That is absurd. Of course such subdivisions 
 
 indicate that the service was commuted for money at least 
 
 as between the mesne lord and his tenant. Incidents of 
 
 this character helped to substitute scutage for service 
 
648 
 
 with the host, and so gradually sapped the distinctive ele- 
 ments of the military feud, and opened the way for its 
 change into a tenure of pure socage. Scutage became rent 
 and the freeholder held only on condition of paying rent 
 to his landlord. The landlord, — the lord of the land and 
 his tenant I We have kept the names long after the facts 
 on nifliich they rested have ceased to exist, and yet the 
 permanent and perpetual rent remained for years to ciaud 
 the freehold, add was seen even in this country in the manor 
 titles of the Patroon. Landlord and Tenant! We have kept 
 the names, and, more than that, we have held on to distinct 
 traces of the old relation; for the possession of the 
 tenant is the possession of the landlord, and the former 
 cannot dispute the title of the latter. The tenant is the 
 landlord's meui to that extent, and v/hile doing no homage 
 at least owes fealty to his lessor's title. 
 
 But this subdivision into many small holdings, which 
 worried the lord of the manor and perilled his services and 
 their incidents, came also from Inheritance. Nothing 
 equals the intestate succession in confusion ajid uncertainty. 
 If has made Pollock and Maitland hesitate to follow Maine 
 in his ideas of collective ownership of the family land, 
 
 while yet they are obliged to admit and do admit the ex- 
 
 « 
 
 ♦stenct of groups tilling the land by co-operation, deeming 
 
 themselves kinsmen by blood, and forming a clan or Saxon Maeg 
 
649 
 
 made up of those entitled to receive the wergeld, in Dti ich 
 special and varying rules of descent existed. The doubt 
 of these very able investigators is not so much about the 
 facts as about the names by which we shall call them. It 
 is easy to object to co-ownerbhip when in truth the abstract 
 idea of ownerbbip had not yet dawned, but we have no other 
 convenient word to help us along the line of our thought. 
 To exchange it for "birthright" scarcely clarifies the sub- 
 ject. It is also easy, out of the wide difference in customs 
 of succession, to insist that no uniform rule or dogma can 
 be asserted, and yet the prehistoric truth is that the col- 
 lectiv» possession of land preceded the individual owner- 
 ship, and that it was only when the latter came that the 
 patriarchal or official succession gave way to the personal 
 inheritance. But for present purposes we must not go back 
 of the age of Bracton, beyond saying that, whatever rule 
 governed the descent of land in Anglo-Saxon times, there is 
 not the least difficulty in seeing the impress which Feudal- 
 ism put upon it. For feudalism could not bear such a^ 
 menace to its existence as the descent of the freehold to 
 all of the children and partible among them. That it found 
 such a rule among the Saxons is evident from the survival 
 in Kent of Gavelkind which parted the inheritance among 
 all the children, and from the custom known as Borough- 
 English which was the accidental name given to a local rule. 
 
650 
 
 Bometimes prevalent elsewhere, which gave the whole patri- 
 mony to the youngest son. He was known as the "hearth 
 child" and the theory seemed to be that the older children 
 had gone out into the world and carved new fortunes for 
 themselves, idiile the/ youngest boy clung to the household. 
 
 Lands held in free socage which had been partible by custom 
 
 as 
 went also to all the children. But the feudal system/has been 
 
 said, would have noae of these things. When the freeholder, 
 
 owing the service of one or more knights, at last died, the 
 
 land must be represented by some one of the sons who could 
 
 become the lord's man, and as such render and perform 
 
 the feudal duties, and so the eldest son was made sole heir 
 
 of the land, l^are far from saying that this choice had 
 
 no other reason. We have shown how in many climes and under 
 
 many forms the tendency had beccme apparent. All 'the same 
 
 it had to fight the Scaion sense of justice. What we say is 
 
 that the feudal system hardened it into a fixed law in order 
 
 to save itself from peril. And so Bracton tells us that the 
 
 first born son of the holder of a knight's fee succeeds his 
 
 father in the whole inheritance, while the lands of a free 
 
 socage tenant which were partible by custom go to all the 
 
 sons in equal shares, except that the eldest shall have 
 
 the chief messuage, making its value good to the others. 
 
 And soonj/I all lands held in socage by new or recent tenure 
 
651 
 
 were swept into the rtiile of primogeniture. But suppose 
 there are daughters only. If but one she takes all, and 
 when she marries her husband does homage for/' the fee. But 
 if such daughters are two or more then they all take as 
 co-parceners, but the husband of the eldest daughter does 
 homage. So far so good. But not yet contented, the Barons 
 and Bishops kacict began to attack gavelkind, and turn estates 
 held by that tenure into knights fees to which would attach 
 the feudal incidents. An archbishop obtains from King John 
 a charter which empowers him and his successors to turn into 
 military fees the tenements kIkIs which were held of his 
 church in gav^ind. The lands of John of Cobhan were dis- 
 gavelled by Edward I who ought to have known better. 
 
 And now the feudal systera seems to have entrenched 
 itself in England. It has fought down the disintegrating 
 tendencies of mortmain and inheritance, and is holding its 
 tenure even when turned into the money of scutage. Its 
 new rule of Primogeniture consolidates the land in single 
 hands upon which the robber burdens can be surely imposed 
 with every avenue of escape thoroughly toarred. And so the 
 Baron caroi:ises in the castle and the freeholder is plundered 
 on the land: the lord revels, the tenant starves. Black- 
 stone from his professor's chair sketches the situation 
 with bold and vigorous strokes; and he who reads it will 
 
652 
 
 see clearly how intolerable the evil had beccme, and how 
 surely a day of reckoning was at hand. Always there was 
 rebellion against the system of legalized plunder- There 
 camera plan for its destruction in the time of James Z 
 which failed of adoption, but when the Revolution broke out, 
 and the cropped heads of Cromwell's iron infantry showed 
 themselves in the Oomnons, the whole system was doomed and 
 a law of the second Charles ended it forever. Free socage 
 wonfe. But every conflagration leaves some fortunate struc- 
 tures and amid the ruins of feudalism stood two things 
 which left their mark on the laterjf law. One was the rule 
 of Primoge nit tare which passed down among all classes and 
 maintAined its sway; and the other the legal theory that 
 all the land was the king's and that every owner holds, 
 mediately or immediately, of the sovereign. The last is 
 called a legal fiction, but, as we have seen, is founded on 
 an archaiffi facet. If goes back to the prehistoric days 
 when the land was in the collective possession of the whole 
 community from whose distribution all individual ownership 
 proceeds. 
 
 And now we shall leave the medieval darkness and approach 
 the end. 
 
653 
 
 XX. 
 
 SIR EDWARD COKE. 
 
 We may now move the historical stand-point from the 
 darkness of the Middle Ages to the time of Sir Edward Coke 
 and the years that followed. There will await us an 
 abundance of material from which we must choose carefully 
 which seems most useful and necessary for our \iltimate 
 purpose. Our dependence will rest largely upon Coke's 
 commentaries and Institutes, which he composed during the 
 busy hours of a very busy life. He was a great lawyer but 
 a mere lawyer. He knew nothing of philosophy, of art, or 
 of literature, and despised them all. Habitually he rose 
 at three o'clock in the morning, and read until eight; 
 then attended the courts at Westminster until nootj took 
 part in the moots of the Inn, held in the corridors or out 
 of doors, in the afternoon; read and wrote until nine; and 
 then retired to get his three hours of sleep before midnight 
 and three hours after. His argument in Shelley's case was 
 one of the legal triumphs which made him famous, and 
 helped him to obtain what, for the Time, was an enormous 
 fortune. That case well illustrates the technical rules 
 and artificial reasoning which had developed out of the feudal 
 
654 
 
 land-law, cqsinplicated beyond any popular understanding as 
 it respected the titles both of lord and tenant. 
 
 There had been distinguished in the learning of 
 the Law two modes of acquiring the ownership of estates in 
 land, known as title by des cent and title by iisxk^bIku 
 purchas e . Whatever did not descend by some sort of inheri- 
 tance from an ancestor was described as title by iizxsiii pur- 
 chase; and it had become a settled rule that the latter 
 title could not be devested by the birth of an heir sub- 
 sequent to the vesting of the estate in the purchaser; while 
 the title of one holding by descent could be defeated by 
 the happening of such an event. The question, however, 
 by which of the two modes of ownership a tenant held his 
 land was often doubtful and difficult, and led to the rule 
 established in Shelley ig case. The facts were that Edward 
 ^elley, seized of an estate in tail general, and desiring 
 to transform the tenure by which he held to better suit 
 his purposes, suffered a Recovery to the use of himself for 
 life, then to the use of two persons for^vf twenty-four years 
 and thereafter remainder to the heirs male of his body and 
 the heirs male of such heirs male. He had two sons, Henry 
 who was the eldest, and Richard. H^nry died, leaving a 
 widow pregnant of a fDn. Edward, the father of Henry, also 
 died before that son was born, and Richard entered as the 
 only heir male of his father eneitled under the uses of 
 
 the Recoverv. When the eon was born the question arose 
 
655 
 
 whether the estate of Richard was devested hy the birth of 
 Henry ^8 sonj and that turned on the inquiry whether Richard 
 held by descent or purchase. Upon that quest ion Coke made 
 a successful argument, and established the rule that where 
 the ancestor takes an estate of freehold, and in the same 
 g«ft or conveyance an estate is limited, either mediately 
 or immediately, to his heirs either in fee or in tail, the 
 word 'heirs' is a word of limitation and not of purchase, so 
 that the ancestor has in him an estate of inheritance and 
 the heir takes by descent. That is the statement of the 
 books to xixt. which safety would bid us adhere, but we so 
 crave an explanation which really explains, and lets light 
 into a dark corner hung with cobwebs that we venture to 
 attack the problem in some more modern way. We state it 
 thus: the word 'heirs' in a feofment may be construed as 
 a word of purchase or as a word which merely limits or guides 
 the operation of 'descent'; that is, the heirs may take as 
 feofees by the direct force of the feofment, conveying to 
 them in terms by the description of 'heirs' the hide or the 
 manor, or they may take not by the direct force of the 
 feofment, but by descent only from the ancestral feofee 
 who himself had a complete and unbroken fee through the 
 gift of the feofment. And so, which was the proper con- 
 struction in the case of Shelley had to be determined. 
 
656 
 
 This was a very fit problem for Coke^B nice distinctions and 
 technics learning. His solution we may try to explain to 
 the normal understanding in this manner. The primary use of 
 the word Uieirs* in a feofment was to indicate and determine 
 the quantity of the estate conveyed. If it was omitted the 
 feofee took only a life estate and the fee could go else- 
 where. If it was used it vested the entire fee in the feofee 
 which was executed in him, and nothing was left to go to 
 others except by the extrinsic channel of descant. That 
 was held to be the situation under the Shelley recoveary. 
 Richard took by descent and so his title could be and was 
 devested by the subsequent birth of the son of the elder 
 son, and he too^ the estate in preference to his uncle. If 
 Richard had held by purchase his estate would not have been 
 devested by the birth of his nephew. There has been much 
 of quite unsatisfactory talk about the origin of the rule. 
 It was probably an outcome of the feudal preference for an 
 eldest son. 
 
 Whoever reads Cokis argument will observe that his 
 style, if it may be called such , was BUde , awkward, crabbed, 
 and involved, lacking the clearness and grace of his great 
 rival, Bacon. Bitterly jealous of each other these two men 
 were. Their hate never slept or lost its venom. Bacon pro- 
 ciired the disgface and removal of Coke from the office of 
 
 Chief Justice; and Coke gave the return blow when he so 
 
657 
 
 piled up the proofs of Bacon's acceptance of btibes as to 
 force from him a plea of guilty and cover him with shame. 
 Coke's career as Attorney General was very discreditable. 
 Always abusive and scornful, he assailed the accused with 
 the vituperation of a coarse blackguard, while loading 
 Elizabeth with sickening flattery. But as Chief Justice, 
 first of the Common Pleas and then of the King's Bench, he 
 gained impeiaishable renown by his unswerving honesty and in- 
 tegrity, and the firmness with which he resisted the en- 
 croachments of royalty upon the independence of the Judiciary 
 and the liberties of the people. Back of him there were a 
 few books of which we should say a word. And first, and 
 most important, was the work of Littleton on Tenures which 
 served as the text for Coke's commentaries, and the channel 
 into which he poured the enormous flood of his technical 
 and solid learning. Littleton was a Judge of the Common 
 Pleas in the reign of Edward IV, and wrote his book for the 
 instruction of his son in what had beceajie the complicated 
 and recondite law of estates and tenures. It long stood as 
 the gateway to pro'Cessional acquirement, and the bar of 
 England studied it painfully and knew no other road to suc- 
 cess. Naturally enough, two German scholars, trained in 
 the Civil Law, gave it the cold welcome of contempt: while 
 on the other hand. Coke ranks it among the ablest books of 
 the law, and Reeves and Har grave <2an hardly hold their wonder 
 
658. 
 
 and their eulogy within sober bounds. 
 
 Beyond Littleton there were three others whose labors 
 went into print and whose works have come down to us. They 
 were Anthony Fitzherfefirt , Sir John Forteecue and Sir Henry 
 Finch. The first of these was a King's Serjeant afterward 
 elevated to the Bench of the Coimion Pleas. He gave to the 
 world in 1514, during the reign of Henry the Eighth, a 
 Grand Abridgment of the Lav/ written in the queer French of 
 the courts, and followed it with his Natura Brevium ex- 
 plaining the nature and office of the multitudinous writs 
 which the Chancery had framed for the use of suitors, but 
 at a time when they were being rapidly supejteeded. He fol- 
 lowed that with a treatise on Justices of the Peace which 
 was soon after translated from the French into the English. 
 Forte scue left Ijf. behind him a book entitled " D^ landibue 
 legem Angliae . — in praise of the English laws. Through 
 the bitter war of the Roses he was a firm Lancastrian , faith- 
 ful till the last hope died to his king and the brave Queen 
 Margaret. He was named their Chancellor, though in fact 
 he never hold the Great Seal, miat he did hold for them 
 was his sword emd his life. His book runs on the lines of 
 that constitutional freedom which it helped to introduce 
 and which was already on the way. Of Sir Henry Finch we 
 know very little beyond what his book discloses, and which 
 
659 
 
 gives a very concise and coaapact view of the law of his time. 
 It is one of the sources upon which Blackest one drew liberally 
 at a much later period. He wove the coif of a sergeant, 
 and it is daid that when John Williams, Dean of Westminster 
 and Bishop of Lincoln, was made Lord Keeper in the room of 
 the disgraced Bacon, the prelate, whose abilities were 
 greit but who knew no law, took Sir Henry into his chambers 
 for six months to learn the doctrines which he was required 
 to expound. And he did leea*n them very well. Sir Henry 
 was the uncle of Lord Nottingham to whom we have already re- 
 :^erred as the builder and almost the founder of English 
 Equity . 
 
 Out of the books of these authors and the cases ad- 
 judicated by the courts we must try to reproduce in outline 
 the law of the period. In front of all as usual ia the land- 
 law, ambitious to set the pattern for eveyything else. The 
 core of it is that raaiwellous thing evolved out of the 
 storms of feudalism, — the fee, the fee simple, the fee 
 simple absolute, the laws conception, come at last, of com- 
 plete and perfect Ownership: and abstraction, an idea, a 
 thought, but a thought dominant; the center and soul of the 
 law. It cannot rest in abeyance, except by a fiction which 
 regards it as in the temporary custody of the Law; it never 
 hangs in the clouds or poises its wing as doubtful where 
 to alight, by force of any act of a party to a conveyance. 
 
660 
 
 Always and forever it rests somewhere: edways and forever 
 it has a home and an owner . It may hide : it may wrap 
 itself in darkness: it may even elude the ^arch: but 
 always it is and always it is somewhere. The realism of 
 the old law has pgflrtially given way, and the hard coarse 
 fact of seisin is yielding to that seisin in law which 
 dispenses with turf and twig, but passes silently and in- 
 stantly to the heir when the man dies, or goes at the 
 mandate of a written word. For the land as a reality, as 
 dirt and gravel and sod, — has grown to be surrounded by 
 and overhung with the bodiless ghosts of estates, legal 
 ideas, rights bearing names, which are not the farm or the 
 manor, but hang about it and cling to it and brood over 
 it, and form its atmosphere. There has come clearly the 
 conditional fee which goes back to the donor upon the hap- 
 pening or failure of the condition, and stalks through 
 the books as a Reversion. There is the Remainder, which is 
 the fee again, going to the donee after the termination of 
 some prior estate, upon which it depends for support and 
 safety. There is the Trust holding the possession for a 
 life or lives, but in which, or at the end of which, lurks 
 the same old indomitable fee. It is a very strong and very 
 dignified thing, and has character, and is even sensitive- 
 ly proud. It envelopes the earth, and the earth. Coke says 
 "is the suburb?^ of Heaven." It carries not merely the 
 
aa 
 
 61 
 
 surface soil, but goes down to its deepest depths and up 
 to the loftiest sky- It descends by Inheritance along 
 lines of descent, but in this old law it never ascends: xx 
 so that the son who has it and dies without issue knows, as 
 he draws his last breath, that the fee cannot ascend to his 
 father but may fly at a right angle to hie uncle. It was 
 very choice of its route and partial to pvire blood. It 
 thought the blood of the father more worthy than that of 
 the mother, and preferred xKtKxxtKx males to females of equal 
 degree: it excluded the half-blood: it was proudly contempt. 
 tuous of the bastard.' It had character for it was some- 
 times a base fee; base because defeasible in the hands of 
 the first holder, and liable to go elsewhere upon the up»- 
 springing of future events. It was ve ly notional about the 
 
 words that create it and we have had to lower its pride 
 
 •I 
 in that respect. "To a man and his heirs will vest it: 
 
 "to a man or his heirs", or "to a man" saying nothing about 
 heirs will give only estate for life. In the first case 
 its character is simple and it calls itself a fee simple. 
 It is the clean, complete ownership. But, "to a man and the 
 heirs of his body" makes it no longer simple, for it is 
 restrained, limited, and goes to his issue and to their 
 issue, % on and on, holding the estate together, and be- 
 comes the fee tail: "tail" from the Frerteh "tailler", to cut, 
 
662 
 
 since sratxisi the fee simple is cut or carved into an entailed 
 estate. It is not content with the present but ranges all 
 over the future, and so becaaee the Contingent fee and the 
 Future estate. It stands by the cradle of the unborn child 
 and welcomes him when he comes, and, in the quaint language 
 of the law, opens to let him in. It perraits itself to be 
 guided by a Power, and will go dutifully under a Power of 
 Appointment, properly authorized and executed, whenever the 
 devisee or grantee of the authority elects. It never dies — 
 it is immortal. It has a regal lineage: it comes from the 
 king. Yet it is democratic, for already it is pushing for 
 freedom, and trying to shake off those obstinate leeches, 
 sucking its life-blood, those Barons and chief lords who 
 harry and despoSl it with their fawciflx feudal incidents. 
 It abhors their chains, it strikes out for liberty of action, 
 it tries to break prison walls and snap all fetters. It 
 will succeed in the end, but just now, in Coke's time, it 
 is having a new struggle. We have seen before how it fought 
 the Barons to throw off restraints oe alienation and how it 
 succeeded, but later its fight is against the heir clinging 
 to the entail. His position is strong, for all along the 
 line of legal evolution the formani doni, the form of the 
 gift, the intention of the giver, had been the controlling 
 and governing authority- The statute De Bonis had made 
 the land in the hands of the donee in tail inalienable even 
 
6ez> 
 
 by the extraordinary force of a Fine, and the courts held 
 that the heirs of the donee were equally bound by the re- 
 striction, and of course it followed that the heirs of those 
 heirs were also restrained, and so the land bound by an 
 entail becaine practically inalienable. There was great 
 ingenuity in the legal efforts to cut off that entail. 
 The lawyers planned first the riiBContinioance ; an imperfect 
 and quite unsatisfaortory remedy. The donee in tail, desir- 
 ing to bar issue and free the land, could make a feofment 
 to a purchaser, and vest the fee in him without working a 
 forfeiture. Such purchaser wfes held to have acquired a pre- 
 e<kmptive right to the possession, and as a consequence could 
 not be defeated by an entry. The is suit follo^/|. that he held 
 safely during the feoffor's life, and after his death the 
 heir in tail, having no right of entry, was driven to the 
 tedious and expensive remedy of a Formedon. Another way 
 seems to have been found applicable to a single case. Where 
 there was a devise to a man for life and then to his next 
 heir male, and to the heirs of the body of such next heir 
 m.ale , and the life tenant made a feofment to a purchaser 
 it was held that such feofment destroyed the contingent re- 
 mainder to the heir, because it ought to vest either during 
 the particular estate for life which supported it, or at 
 the instant when that estate determined. But the conveyancers 
 promptly avoided this difficulty by giving the remainder to 
 trustees for the heir next to the tenant for life, for 
 these could ejiitfij: at once when the life estate was 
 
664 
 
 forfeited by an alienation, and that method of saving a 
 contingent remainder became common especially in marriage 
 settlements. A More effective method of barring the entail 
 was known as a Warranty with assets. A makes a feofment 
 to B and the heirs of his body. B has issue, a son. B 
 enfeofs C with a warranty of title, and then dies, leaving 
 to his son other lands in f ee of equal value with those sold 
 to C. Now the son , as tenant intail, can assent his title 
 as against C, but the warranty of the father descends as a 
 liability upon the son, and if he gets back the land he is 
 bound at the same instant to pay back its value; and, to avoid 
 this circuity of action, ending in no benefit, the heir was 
 forbidden to eject the purchaser and so the entail was 
 barred. But some better and surer remedy than these was 
 needed. Relief came in the time of Henry VII through a 
 modification fot the statute of Fines, and it began at 
 once to be said that now the issue could be barred by a 
 Fine, and in the next reign it was so held, and the matter 
 was put beyond all doubt by the force of a statutory approval. 
 Through these devices and the open fraud of a common Recoverji, 
 beginning with a fiction andxKxix ending with a worthless 
 judgment against the court crier as common vouchee for 
 everybody, it became always possible to dock an entail and 
 restore freedom of alienation to the land. The great evil 
 of withdrawing it from the transfers of business and of 
 commeree and binding it fast for generations was thus averted, 
 
665 
 
 but it strikes us nevertheleee ae a grave shame that the 
 law should have resorted to fraud and falsehood as the means 
 of reaching the desirable result. 
 
 Some freedom of alienation, also, had grown up 
 through the operation of a will. Land had become devisable 
 through the power of devising a Use, and movables had long 
 been so under the curious restriction that one third should 
 go to the wife, one third to the children, and the testator 
 might dispose of the other one third for the good of his 
 soul. There was the wife's part, the bairn's paxt , and 
 Gtod's parti and we may readily believe that the priestcraft 
 of the day took a lively interest in the disposable third, 
 and so claimed j\iriBdiction over wills for the courts Chris- 
 tian. Lateir all restrictions disappeared. Under Henry VIII 
 an act had been passed which made two thirds of all lands 
 held in chivalry, and the whole of the land when held in 
 socage devisable, except to bodies corporate having per- 
 petual succession. 
 
 Of course the changes in the land law were followed 
 by changes in the Procedure which provided remedies for a 
 disseisin. A special relief was provided for the termor, 
 the tenant for years, disseised of a part of his term, 
 infaich in the end superseded all the old remedied and be- 
 came the action of Ejectment. The tenant was allowed the 
 writ of ejectio firmae which, at first, only gave him 
 
666 
 
 damages for the injury done, but finally was allowed to re- 
 store to him possession of the unexpired term. Its con- 
 venience as a method of testing title was very soon per- 
 ceived. The lessee ejected or, as the law began to say, 
 ousted, could only recover by first establishing the right 
 or title of his lessor under whom he occupied, for his term 
 was not a freehold of which he had seisin, but merely a 
 chattel real. And so it soon happened that the courts per- 
 mitted an artificial arrangement of the facts which would 
 serve to bring the title into dispute. The claimant makes 
 an entry upon a parcel of the land; being there he executes 
 a formal lease to dlessee, signed and sealed, and leaves 
 the lessee in possession; the actual tenant or some one in 
 hie behalf ousts the new lessee, and then he brings his 
 writ of ejectio firmae against the ejector. The lessee 
 ejected alleges title in his lessor, the entry under that 
 title, the lease, and the ouster, and demands possession of 
 the land. The defendant who ejected him justifies under the 
 title of the real owner, and so there is evolved the one 
 precise question who has the better title, in other words, 
 who has the dominant right of possession. We have here an 
 action which while possessory in its character is also some- 
 thing more; which goes beyond the novel disseisin and mixes 
 with it the writ of right. By and by, these formalities cease 
 to be required as actual facts, but assume the character of 
 
667 
 
 necessary fictions, mere implements of procedure. The 
 plaintiff, without going on the land or making a lease, 
 and 80 without ouster of his tenant, alleges all those facts, 
 putting up a puppet as lessee ousted by another puppet known 
 as the casual elector who becomes nominal defendant, and so 
 Stiles and Saunders and Doe and Roe confront each other 
 as sham contestants behind whom the real fighters join 
 battle 1 For a notice signed by the casual ejector must be 
 given to the real defendant in possession as owner that he, 
 Jfthe ejector, is sued but claims no title and unless the 
 owner makes himJself a party who comes in and defends judgment 
 will go by default, tnd the premises pass into the posses- 
 sion of the plaintiff. The actual defendant then asks leave 
 to come in and defend, but as a condition of the permission 
 granted, is required to enter into the consent rule^ that is 
 to admit the formal allegations of entry, lease, and ouster, 
 and BO leave open only the question of title. This curious 
 drama reminds us of that at Rome begun by an Interdict, 
 where exterior fictions were used to get the matter before 
 the court. The next step in the growth of procedure was to 
 sweep out the fictions and plead the facts. 
 
 There was need of deep and radical change for the 
 procedure of the time had become so technical and involved 
 as to strain the strongest intellects and put justice at the 
 
668 
 
 meroy of an artificial logic. Shelley's case which we 
 
 have already sketched was an example. One or two more will 
 
 serve to indicate the refinements of legal thought spun out 
 
 from the brains of Coke and his brethren at the bar. Thus 
 
 in Ohudleigh's case which was so important that it gained 
 
 the name of "the Case of Perpetuities" the facts were that 
 
 sons 
 Sir Richard Chudleigh having seferal ikks enfeoffed certain 
 
 persons and their heirs during the life of his eldest son 
 Christopher, and after his death to the use of the eldest 
 son of Christopher in tail and so on to the tenth son, 
 with remainder to his second, third and fourth sons in 
 tail; remainder to his own right heir. Evidently the knight 
 meant to tie up his estate as long as possible and so tangled 
 it in a mesh of contingent uses. But after his death and 
 while Christopher was childless the feofees enfeoffed him. 
 The conveyance seemingly carried the uses with it but there 
 was no one in existence to take them and so they were in- 
 effective and dead . But afterwards a son was born to 
 Christopher and the question argued was whether the uses re« 
 vived in that son or were gone beyond revival. The argu- 
 ment against the renewed life of the contingent uses was 
 made by Coke on one day and by Bacon on the next and was 
 both learned and intricate. It prevailed and the contingent 
 uses had no resurrection. Another of these curious cases 
 may be recalled which is rescued by Reeves from old and for- 
 
669 
 
 forgotten records. Sir Francis Englefield covenanted to 
 stand seized to the use of himself for life, remainder to 
 his nephew in tail, remainder to himself in fee : but since 
 the nephew was young and youth often goes astray he further 
 provided that if he by himself or by any other should during 
 his natural life deliver or offer to the nephew a gold 
 ring, to the intent to make void the Usee that then they 
 should be void. Thereafter Sir Francis was outlawed for 
 tre?ason, and the Queen, who needed more new dresses and 
 coveted the whole forfeited estate, authorized by letters- 
 patent two persons to offer the ring to the nephew so as to 
 avoid the Uses in him. He refused the offer and claimed 
 the estate. The argument as usual spread over a wide area, 
 but it pivoted on the question whether the power of revoca- 
 tion reserved to Sir Francis was personal to himself or could 
 be exercised by someone else. The court held that the at- 
 tainder put- the Queen in the place of the traitor and so 
 she could avoid the Uses. It was an instance of extremely 
 bad law, but in reading the case we almost breathe an at- 
 mosphere of the"Arabian Nights". The Use was the slave of 
 the Ring. We observe also how naturally the doctrine of 
 Powers begins to evolve out of Uses. Here there was a 
 Power of revocation. It will not be long before that will 
 broaden into a Power of Sale and Power of Appointment. 
 
670 
 
 Perhaps we have said enough about the land law, and 
 may now turn away from it and approach some other develop- 
 ments of the period. 
 
 We have traced the judicial duty and authority, from 
 its crude but natural origin in the life and surroundings 
 of the primitive father, through the rule of the Patriarch, 
 of the tribal Chief, of occasional oligarchs, to its ultimate 
 resting place in the king. On the way, we observed how its 
 power and dominance were assured by a superstitious belief 
 in his divinity of origin, through which flowed to and 
 gathered in him the wisdom of the Gods. The belief could 
 not long survive the test of experience and the spread of 
 popular intelligence. The links of divine connection 
 were quite early broken in England, and the old royal power 
 of judgment was vested in the established courts: but it 
 was easy for the king to regard them simply as his agents, 
 doing his work for him in the making and development of the 
 law, but wholly by his permission, and subject to a right 
 on his part to resume at will the delegated authority. 
 There were years in which the Parliament had acknowledged 
 that rigM, and the sovereign had exercised it. King James, 
 with Bacon at his elbow, began to make law by the issue of 
 Proclamations, as the Roman emperors had done by their 
 eirbitrary Constitutions. While those decrees respected 
 matter of mere administration, and were aimed solely at the 
 
671 
 
 enforcement of existing law, nobody mioxmured; but James was 
 told and believed that he had a right to make new law, to 
 Ijudge between litigants, to frame tribunals at hie own 
 will and pleasure: and began to exercise that authority as 
 within the bo;ands of hie Prerogative. One Proclamation 
 followed another. The eccleeiaetical court of High Com- 
 miesion, formed only to redress spiritual offenses, began 
 to lend itself to the despotic claims of the king, and as- 
 sume an unbounded and uncontrolled temporal authority. It 
 sent its officers into the house of the citizen to arrest 
 and imprison him, and would have put the liberty of the 
 subject at the mercy of the royal will but for the solid 
 and firm resistance of the Zing's Bench, led by (Ebke as its 
 Chief Justice. He issued his writs of Prohibition liberally 
 and boldly and ruled that anyone might resist the Commission 'i 
 officer, and if he killed him in the effort would not be 
 guilty of miirder. The Chief Justice also barred the royal 
 effort to act as Judge between private litigants, and when 
 James suggested that the Conmon Law was based upon reason, 
 and that he had reason as well as his Judges, Coke answered 
 suavely that the reason upon which the Law was founded was 
 technical and complicated, which his majesty had never 
 learned, and whi '± only the courts were trained to emplpy 
 and understand. And then the brave Chief Juetic®, aating 
 in the regular and orderly course of law, ventured to decide 
 
672 
 
 a case of commendams in disregard of the royal order to delay 
 
 the decision until the king could be consulted: and when the 
 
 whole twelve Judges were siamnoned before the throne, and 
 
 scolded and stormed at for their obstinacy, and then were 
 
 asked if they would obey his majesty^s orders in the future, 
 
 while the rest, on their knees, sobbed out consent. Coke 
 
 answered only that when the case came "he would do what it 
 
 fit 
 was/for a Judge to do." Of course he was soon removed from 
 
 his office, but he imbedded in the Common Law and anchored 
 there teyond the reach of storms, the independence of the 
 Judiciary, and the right of the people through their repre- 
 sentatives in Parliament to make their own laws. 
 
 Passing from this development of the Public law, and 
 turning our study into the region of private right and of 
 promises made by man to man in the business dealings of 
 daily life, we may face the equally important inquiry — ^whers 
 in this age of Coke and his successors is the parol execu- 
 tifta contract, and when and how is it to come. For thej( 
 astonishing fact is that it had not come at all. Pollock 
 and Maitland say only that it was in the air. In Coke's 
 volumes there is no chapter on bailment guid none on contract. 
 He seems not to know either as a distinct branch or depart- 
 ment of the law, and his allusions are rsire and hard to find. 
 In Sir Henry Finch's book there is a chapter entitled of 
 Bailment and Contract, but, out of five hundred pages in the 
 
673 
 
 volume, those subjects occupy but two and unfold almost 
 nothing to our curious eyes. It is evident that the parol 
 executory contract founded upon a consideration of benefit 
 or detriment has not yet arrived, and that the duty of the 
 bailee in all sorts of bailment is enforced as a duty, the 
 breach of which amounts to deoceit or fraud or negligence, 
 without the least hint of that basis of contract, express 
 or implied, upon vhich ELackstone at a later day rests the 
 right of recoveryl If we are to find traces of the execu- 
 tory parol contract it is evident that we must go to pro- 
 cedure. But what is that procedure? We have already seen 
 what a specialized thing it is. There seem to be no 
 generalizations no broad doctrines indicated by broad remedies. 
 Not one. Every group or assemblage of actionable facts has 
 its own special and peculiar writ, applicable to that group 
 alone, and of no use in the world for any other. If new or 
 different facts assemble themselves they are nothing until 
 the Chancery compacts them into a recognized group, and 
 furnishes to them their new and appropriate jNrrit. The re- 
 lations of men with each other and with the state are thus 
 catalogued and labelled, and the lawyer has only to go to 
 the index. The question never is in a given case what 
 principle may furnish a remedy, but is there a writ Tirtiich 
 fits, is there a formal vestment which will clothe withj( a 
 right the new array of incident and circumstance. It is in 
 
674 
 
 these groups and their remedial writs that we must look for 
 the beginnings of a parol contract, and we shall be certain 
 not to find it until we find also that consideration has 
 passed beyond mere benefit to one party, and has taken in 
 as an added element a detriment to the other. One would 
 naturally suppose Ihat thewrite which serve for torts or 
 wrongs would give us no help, but that there were certain 
 others likely to involve and stand upon a purely contract 
 relation; and that these were Debt, Covenant and AccoSnt, and 
 of the three the first would prove to be the most hopeful. 
 But we, having already said that in this direction nothing 
 awaits us, own disappointment. Read thewrit if you please; 
 
 first, as it ran in Glauvill's time: "Simmon A that he render 
 
 unto B one hundred marks which he owes to the plaintiff 
 and whereof he unjustly deforces him." Yes, he deforces 
 him, he is a disseisor of the money, and the plaintiff is 
 simply trying to get back his own money wrongfully with- 
 held by the defendant. That is the theory, a tort and a 
 wrong, a breach of a duty growing out of the facts; never 
 once a broken promise to pay. Later, and near the time 
 of Coke, the word"de forces" was dropped out and the words 
 became "which he owes and unjustly detains." The writ in 
 the debet and detinet when against the debtor, but if he 
 died and his executor refused payment it was in the detinet 
 
675 
 
 only, for the reason that he owed nothing, but detained 
 money of the testator who did owe and which ought to go 
 in discharge of the debt. Still no promise, no contract, but 
 a duty Tonperf ormed . The truth of this will appear again if 
 we ascertain what precise group of facts bore the label of 
 this writ . It was used for money lent, price of goods sold, 
 arrears of rent, money due from a surety, and a sealed bond. 
 In the first two cases the plaintiff shows facte to make 
 the money his own and sues for his own which is detained 
 from him: the rent is product of hie land: the debt of the 
 surety and of the bond are acknowledged in terms and be- 
 come existing facts raising a consequent duty; and always 
 it is only some fixed and determined sum that can be re- 
 covered. So that the writ is rather proprietary than con- 
 tractual; rests on no promise and none is proved. When we 
 examine Covenant we find, first, that it relates almost 
 always to terms for years in land, and while its range was 
 greater than that , and seemed to have no boundaries, yet, 
 by the time of Edward I, it was confined to instruments 
 under seal. Go now to the action of Account. Here again 
 we are assured that the writ was modelled upon those of a 
 proprietary chteracter, and that there was no element of con- 
 tract about it. Usually it lay against a bailiff or re- 
 ceiver of the plaintiff's money who was called on for re- 
 storation. Even in our law Professor Langdell declares that 
 
676 
 
 the actionable right is not founded on Contract but exists 
 independently: and he is right about that: for we can see 
 that at the root of the facts is a confidence and trust 
 reposed, and a violation of an obvious duty not born of a 
 mere promise. So, these writs do not help us: and we are 
 led to adopt the view of Professor Attes, that the parol 
 contract, as an enforceable obligation, was an outgrowth 
 of the law of torts and their remedial writs, and to some 
 extent at least, was suggested by the law of Bailment. In 
 the region of doctrine, Bailment, and in that of remedy, 
 Trespass, were the "fertile mothers" of most of the Com- 
 mon Law. 
 
 The old hard rule of the absolute liability of the 
 bailee to return what he received showed itself very early 
 in the English law, and at a time when the Civil law had 
 accepted and labelled just excuses for a i^ilure to return. 
 Southcote ' s case (4 Rep. 85b) rests plainly upon the archaic 
 rule. It held that the "delivery to the bailee" "changeth 
 him to keep the goods at his peril": and because, if they 
 were taken from him wrongfully , he and he alone had to 
 remedy over against the wrongdoer. How almost unbounded was 
 the early range and sweep of this doctrine we have already 
 noted in the fact that even the loan of money was regarded 
 as a bailment, and the creditor sued to recover what was 
 his own property unjustly withheld. But the very dominance 
 
 of the doctrine brouo-ht it into trouble. The ground of a 
 
677 
 
 recovery was invariably in tort and the action detinu e ^ 
 counting on an unlawful detention. That remedy would not 
 serve when there came the case of a bailment to a carrier to 
 transport, or still worse, to a smith to shoe a horse, and 
 where the thing bailed was not destroyed or lost but merely 
 damaged. There was no detention, for the injured property 
 was returned, and resort was had to the newly invented writ 
 of trespass on the case. But even in that action diffi- 
 culty was encountered, for trespass implied some wrongful 
 act, and, in the cases supposed, the injury might have come 
 from an omission to act, did come from an omission to act 
 KMSJXacag skilfully and with suitaMe care. Thereupon the 
 courts began to say that the kit bailee, by entering upon 
 the work requested of him, took upon himself the duty to acct 
 with reasonable care and skill, super se assumpsit, assumed 
 the duty, undertook its performance, and so was guilty of a 
 trespass when he failed to perform it. But the action was 
 still in tort, and the assiompsit w as merely an inducement 
 to raise the necessary duty, and not at all a substitution 
 of contract, and so no question of consideration could arise. 
 But it was becoming obvious in this class of cases that the 
 bailment was a mere inccident of the transaction, and that 
 the real and vital point of the controversy was the thing 
 assumed and so agreed to be done, the carriage of the goods, 
 the shoeing of the horse; and that the duty violated rested 
 not upon the bailment, but upon an implied agreement to do 
 
678 
 
 the contemplated work with proper care and skill. And this 
 became still more apparent when the courts began to rule 
 that men who held themselves out as common carriers or pub- 
 lic innkeepers by that very act agreed generally with every 
 customer to carry or keep the goods entrusted to them safely, 
 We can see how Contract is sure to reclaim what is its own 
 from the dominion of Tort, and how Assumpsit , serving at 
 first as a mere handmaid to trespass, is about to set up in 
 business for itself, and dominate the whole field of Con- 
 tract, Some results displayed themselves in the fajnous 
 case of Coggs v Bernar d; (Lord Roy. 909) famous more for 
 the amount of extra-judicial law which it made than for the 
 exact point decided. It was an action of trespass on the 
 case, and so the recovery was for a tort, a fact to be 
 steadily kept in view. The declamation alleged that the 
 defendant assumpeieset . undertook, to take up several hogs- 
 heads of brandy then in a certain cellar in D, and safely 
 and securely to lay them down again in a certain other cel- 
 lar in Water lane , but acted so negligently in the removal 
 that one of the casks was staved and the brandy lost. A 
 motion was made in arrest of judgment because it was not 
 alleged either that the defendant was to have anything for 
 his pains, or that he was a common porter. In giving his 
 opinion Lord Holt reviews the whole law of Bailment, with 
 an evident purpose to clear it of doubt and put it on a 
 
679 
 
 secure foundation, Ihat he thought he had to do first was to 
 get rid of the old barbarian rule, plainly enunciated in 
 Southcote's case, that the bailee was liable in any event 
 for a safe return. He repudiates that doctrine. After a 
 very common judicial fashion he tries to so manipulate the 
 earlier decisions as to leave Southcote's case without an 
 authoritative precedent. In that, as Judge Holmes says, 
 he signally failed. Nevertheless he reversed and anniilled 
 the old doctrine of absolute liability in the case of ordin- 
 ary bailees. In so doing he swept out all the general law 
 of Bailment which England had, and was bound to find some 
 just and reasonable substitute, and so he goes to Bracton 
 who copies from Justinian. There was no other law to be 
 had. The Judge knows the English prejudice against what the 
 people were in the habit of calling "the law of the Pope", 
 and we are amused at his half~ap®logy for citing it, but there 
 was nothing else to be done, and so far as he could he ab- 
 sorbed into English law the Roman doctrine of Bailment, 
 saying that it was just and reasonable. The old barbarian 
 rule was thus got rid of. And yet we/are unable to see how 
 its destruction was at all necessary for the decision, since 
 the Bailment was not general as in Southcote's case, but 
 special to carry safely . That was the duty assumed, and no 
 consideration was needed to make the assumption valid in 
 an action of tort. But Lord Holt, not content with having 
 
680 
 
 imported from Justinian an entire doctrine of Bailment to 
 fill a created blank, went on to consider the facts from 
 the standpoint of contract to which he was pressed by the 
 objections of the defendant's counsel. That counsel was 
 undoubtedly saying that the gist of the action lay in the 
 agreement to carry safely, and that agreement was void for 
 want of a consideration. To that the Judge answers that 
 t^re was a consideration in the detriment which the 
 plaintiff suffered by parting with the possession of his 
 property. That was no new doctrine, for assumpijltt as a 
 remedy in contract, and detriment as an element of considera- 
 tion are said by Professor Ames to have been established 
 as far back as 1504, though Holmes locates the first case 
 of assumpsit fifty years later. The true answer should 
 have been that the action was in tort and no consideration 
 was needed to support the assumpsi t, and it may be that 
 Lord Holt really meant no more thaj^n that. At all events 
 the recovery in tort was sutained, and, if some old cases 
 can be trusted, an assumpsit was not even essential to the 
 remedy y While ordinary bailees were thus relieved from 
 the hard rule of absolute liability, and the Roman doctrine 
 of permitted excuses substituted, the common carrier sf 
 SSttax was left to the archaic liability on grounds of 
 public policy, and made an insurer except as against the 
 act of God and the king's enemies. 
 
681 
 
 A fijrther consequence of the invasion of Bailment 
 by Contract followed which was that the former became very 
 properly narrowed to cases where title to the thing delivered 
 remained in the bailor, while those in which, like a loan 
 of money, title vested in the bailee were handed over to the 
 dominion of Contract: and those which the Romans called 
 mandatum or commission took their place in the laws of Agency. 
 
 One of the things that happened about this time, 
 and largely at the hands of Coke, is specially interesting 
 to us both on its own account and because of the light 
 which it throws upon the process of legal growth. It is 
 the absorption of the Law Merchant into the Common Law. We 
 have seen how at Rome the Praetor peregrinus had to make 
 from conduct and customs a new law for the strangers trad- 
 ing and dealing in the City. Something of a similar sort 
 had to be done for the foreign merchants whose ships brought 
 goods to the English ports, and for the native merchants 
 whose ships carried the island products abroad. There were 
 already existent some commercial rules and customs closely 
 connected with the law of the ship as enforced in the Ad- 
 miralty, such as the maritime laws of Cleron and the economic 
 Statute of the Staple. Yey much of the trading in the 
 fourteenth and fifteenth centureis, both foreign and domes- 
 tic, was done at Fairs, and attached to these were local 
 courts having jurisdiction over the attending merchants. 
 
682 
 
 A statute of Edward IV recites the existing ij, custom which 
 gives to the court of the Fair remedy on contracts, tres- 
 passes, covenants, and debts, to be tried by the merchants 
 of the Fair. Similar courts were authorized in many coast 
 towns, and in London half of the jury was to consist of 
 foreign merchants j and the proceedings of these tribunals 
 were described as "the pleas betwixt straunge folk that man 
 clepeth pie poudrons." This last was a French phrase mean- 
 ing duty footed. We wonder if the Gauls derived it from the 
 Greeks who called the farmers of Epidaurus ko nip ides or 
 dusty footed. Of course the law of these Fairs, — of these 
 dusty footed dealers, — was made up of the general mercantile 
 customs prevalent among many races, which the parties per- 
 fectly understood, and the Common Law and the King's Justices 
 were alike disregarded. The latter did not like it, and 
 Coke led the way in an effort to draw to the central juris- 
 diction the affairs of the merchants. He resorted even 
 to a fiction that contracts made elsewhere were made in 
 England, and used freely his writs of prohibition. When- 
 ever jurisdiction was gained the merchants were allowed to 
 prove their customs as facts which should govern the decision, 
 until , after sufficient repetitions of such proofs, the 
 customs themselves were judicially recognized and became 
 acknowledged elements of the Common Law. At the hands of 
 Lord Mansfield they gained order and consistency, and the 
 
685 
 
 law of commercial paper assumed its later form. The first 
 English suit on a bill of exchange is said to have been 
 brought in 1605, and in 1875 the law merchant was described 
 as "neither more nor less than the usages of merchants and 
 traders, ratified by the decisions of courts of law, which, 
 upon such usages being proved before them, have adopted them 
 as settled law." ( Goodwin v. Roberts L.R. 10 Ex 357, 346) 
 In this ma.nner the whole business morality of the merchant 
 class was absorbed bodily by judicial action into the 
 Common Law. We shall have occasion soon to recall and 
 reason about the remarkable fact. 
 
 The legislation of Elizabeth shows in one direction 
 a recurrence to the Realism which had almost disappeared, 
 and to a new Formalism taking the place of the old. With 
 the coming of simple contracts, dispensing with the Realism 
 of acts and ceremonies, and framed easily by concurring 
 words, came an opportunity, and so a temptation tofraud and 
 perjury: and to guard against that the Statute of Frauds 
 was enacted. Writing had become common. No longer the 
 peculiar skill of the priest, or the Baron whose youth had 
 been trained at Oxford, it had spread downward among the 
 people, uriio could, at least, write their names, or make 
 ■their mark with the old fashioned cross, which faintly re- 
 flected the sacral sanction of dead thoughts and days. It 
 
684 
 
 was observed that here was a substitute for the archaic need 
 of witnesses, and of the acts and ceremonies upon which their 
 utility depended, and which could furnish proof conclusive 
 and unperjured. And so the statute ordained that convey- 
 ances by deed or will, all transfers of any Tcust or confid- 
 ence, promises in consideration of marriage, or not to be 
 performed within one year, or to answer for the debt or de- 
 fault of another, or binding personally an executor or ad- 
 ministrator for debts of the deceased, and all agreements 
 for the sale f) of goods, wares and merchandise of the value 
 of ten pounds or over, should be void unless manifested by 
 a writing: except that when goods were sold the contract 
 might be validated by payment of some part of the price 
 or delivery and acceptance of some part of the goods sold. 
 In this last or alternative provision we are carried back 
 to the days of the old realism. In the absence of a writ- 
 ing the seller must be seized of the price or the buyer of 
 the goods in order to validate the sale. 
 
 Parallel with the purpose manifested by this statute 
 ran that of those aimed at fraudulent conveyances which 
 have come down to us, and with very little of change govern 
 the conduct of the failing debtor. Hie temptation out of 
 the wreck of financial disaster to save something for him- 
 self at the expense of his creditors led him to make or 
 
685 
 
 assert false debts to friends or relatives and then transfer 
 to thera large portions of his property in payment which 
 they held more or less upon a secret trust for his benefit. 
 All such transfers were adjudged as made with a fraudulent 
 intent as against creditors and for that reason avoided. 
 The intent was inferred by the Law from the facts attending 
 the transfer, and it paid no heed to what might have been 
 the actual personal intent of the debtor. When those facts 
 led to an inference that the hidden and ultimate purpose 
 was to snatch assets from the seizure of the creditor the 
 Law imputed a fraudulent intent to the debtor whatever his 
 internal thought or purpose may have been. It acted on his 
 conduct and deduced from that the necessary intent. Many 
 of the indicating facts were gathered in Twyne's case which 
 long stood as the shield and protection of the creditors. 
 Indeed the old law had little mercy for a bankrupt. It 
 regarded him as an offender. Reeves tells us that "he 
 was stripped of his property both present and to come, 
 and, after all, still left to the mercy of his unsatisfied 
 creditors, without the least means of being likely to pay 
 them." Usuieily the debtor's prison awaited him. His 
 severity we 7can see was an inheritance from the Roman 
 chains and death, and the Lalian chrenecruda w hich might 
 end in ddath, and found its justification Ini the early 
 
686 
 
 theory that the ct&btor was detaining money nii ich belonged 
 absolutely to the creditorl And still another doctrine of 
 the primitive law csune to the surface in this legislation 
 and in the treatment of chattel mortgages. The old importu- 
 nate demand for an open and obvious possession as an evidence 
 of title was reflected in the provision that transfers of 
 chattels unaccompanied by an actual and continued change 
 of possession should be deemed presumptively fraudulent as 
 against creditors and innocent purchasers. 
 
 At this period also had come a great change in the 
 trial by jury. The ordeal, the battle, the secta or suit, 
 the compurgatory oath, the wager of law 4 were all gone or 
 disappearing, gradually disused or becoming obsolete, and 
 the recognitors, acting on their own knowledge, were giv- 
 ing place to the jury of freeholders deciding upon the 
 evidence of witnesses, taking the law from the court but 
 sole arbiters- of the facts. There was indeed much of re- 
 formation desirable. As we read the trial of Raleigh we 
 grow indignant at such a mockery of justice. Only dep8ss- 
 tions were read against him. Not one witness confronted 
 him. He was not allowed counsel or permitted to call a 
 witness in his defense, and was abused with the vilest 
 language by the officers of the Crown. How such a hor- 
 rible procedure axmld exist except in a half barbarous 
 
687 
 
 race it is impoesible to conceive. And yet reformation came 
 Blow. Coke himself, chief offender though he was, protested 
 against the outrage in his Institutes, Qaeen Mary rebuked 
 it: the courts grew ashamed of it and gradually permitted 
 witnesses for the defense to be heard, but would not permit 
 them to be sworn; and it was not until the reign of Anne 
 that a statute fully corrected the evil. 
 
 And yet much was gained for there sat the jiiry wait- 
 ing the coming of a juster procedure. How great the ap- 
 proaching change we shall see as se come closer to our own 
 Time, 
 
688 
 
 XXI. 
 
 BLACKSTONE TO KENT. 
 
 What we call the Coajmon Law developed itself out of 
 a disorderly mass of various and changing customs, and an 
 external morality dominated and moulded by feudal needs 
 and arrogance. Its main advance was through the masterful 
 ^reign of Elizabeth, the warped and dictated rule of Anne, 
 and the long and pure and noble life of Victoria. There 
 were kings in between, mostly of foreign breed; fit only to 
 shappen the pen of satirist or historian; and there was 
 Cromwell, who came and went like a thunder-storm that with 
 all its ruin serves to clear and sweeten the air, But all 
 the time, and whoever sat upon the throne, there is visible 
 a steady and persistent process of wiping out the barbarian 
 of Saxon law and custom, and the horrible and complicated 
 procedure through which it was enforced. There is left but 
 little of the ancient law which was purely Saxon, except as 
 a wreck on the roadway of advancing civilization, and as a 
 nomenclature very far divorced from the meaning of its 
 origin. This radical and marvellous -change was not sudden 
 or swift, but slow and deliberate. Little by little, and 
 under the pressure of new emergencsdes, there came a thorough 
 
14 
 
 689 
 
 rebuilding = Old foundations were replaced with deeper and 
 stronger walls; upon them a structure arose, not Roman or 
 Saxon, not Norman or Dane, but with traces and memories of 
 each, yet new and different, lifting above the level of its 
 origin, disclosing wider purposes and a broader plan but 
 regarded as the old home still although not an original 
 stone or beam was left . 
 
 This work of construction was largely carried on by 
 the Judges, dealing with cases as they arose and as they 
 brought to the bar new facts of the social life and new 
 relations of men with each other; who recognized an im- 
 proved morality and better habits and customs; who dropped 
 by disuse rules outgrown, till they beccame obsolete, and 
 supplied their place with a simpler and fairer procedure; who 
 modified and moulded old doctrines into harmony with a 
 higher level of popular thought and conscience, evolved out 
 of them a better and broader justice, and deftly shaped and 
 framed them to meet and answer the demands of a swiftly 
 growing civilization. 
 
 In the performance of that duty they were hampered 
 and restBained by one necessity. They realized that no 
 Law was worthy of the name which was not certain and con- 
 sistent ; that rules and doctrines changing and varying 
 with the will and temper of the Judge would make impossible 
 any fixed and permanent legal system, and any capacity on 
 the part of the people to know or understand the rules 
 
690 
 
 which they were expected to obey. And so the courts inevit- 
 ably became bound by precedent. Not to be so bound was to 
 make the Judge an arbitrary and irresponsible afeent in 
 ^ose hands no person or puoperty could be safe, and whose 
 decree no citizen could guard against or anticipate in the 
 daily business of his life. Not to be so bound, was to 
 tangle the law in amaze of contradictions, to leave it at 
 sea without compass or qu^idrant, drifting before every 
 change of wind. And so the courts respected and followed 
 precedent; as a rule and in a general way; though often re- 
 quired to apply an old doctrine to a new grouping of facts, 
 which led to gradual and growing modifications of the doc- 
 trine itself, and admitted an occasional rejection of a 
 precedent as a mistaken and unsound statement of the law. 
 
 But this was slow work, even when helped by a multi>- 
 tjide of fictions, adopted to preserve an appearance of con- 
 sistency , and to disguise or conceal a real and veritable 
 change. Some agency of reform was needed, untrammelled 
 by the restraint of precedent, able to act freely and strong 
 enough to act effectively. That agency was found in the 
 Parliament and the statutes which it framed. The legisla- 
 tive body represented the general morality of the people, 
 and, influenced and prodded by it, was free to lift the 
 law to the higher and better level. More and more it inter- 
 vened, cutting knots which the Judges could not untie, meeting 
 
691 
 
 new emergencies with new rules, extirpating the Saxon bar- 
 barism and its awliward procedure, and making over the 
 English system until, in the end, little was left of un- 
 written law, and it has become the main duty of the courts 
 to construe and interpret the statutes of the realm. If 
 one should examine volumes of the modern reports, numerous 
 and endless as they are, ji^he would but rarely find a Case 
 dependent upon the Common Law alone, and \inaffected by statu- 
 tory influence or modification. 
 
 Of course it would be impossible even to catalogue 
 the multitude of changes worked by legisliktion, and our pur- 
 pose requires only that we busy ourselves with those which 
 cut deepest into a departing barbarism, and most effectually 
 celeared the way for a simpler and better law. We may take 
 as a starting point the time of Blackstone, with whose life 
 and commentaries all are familiar, and who gives us the law 
 and the custom of England in the period of the four Georges: 
 those Hanover stupids, with their gawky and flabby mistresses, 
 whom Thackeray delights to paint in their own sloppy and 
 iD^ddy colors: but through whose wilful and obstinate reigns 
 the Law steadily threw off its barbarism, and strove to 
 become fit and clean for the coming of a Princess destined 
 to make royalty respectable and even lovable. 
 
 It was inevitable that the destruction of the feudal 
 
692 
 
 syetem should involve radical changes in the land law which 
 had so long dominated the English doctrine and procedure. 
 We are not surprised to see Blackstone give it prominent 
 place, as did Glauvill and Bract on and CDoke before him,- 
 for it led the way and framed the example for almost every- 
 thing that remained. With the disappearance of feudalism 
 a transfer of land cseased to be a Gift: Gift with a string 
 tied to it held by a lord: and became an alienation vesting 
 an independent title in the grantee, except as limited by 
 its own explicit terms. There had been two forms of trans- 
 fer; the Feofment with its necessary livery of seisin ap- 
 plicable to the conveyance of things corporeal, and the 
 Grant appropriate to things incorporeal. The livery of 
 seisin was abolished and estates were decreed to lie in Grant 
 as well as livery, and the Grant steadily grew to be the usual 
 method of conveyance. That Grant, in its primitive form, 
 was, as Blackstone tella us, a writing on parchment or 
 paper in two parts and cut through by a waving or toothed 
 line, from which it became known as a chirograph , and then 
 as an Indenture: name that we have kept as a survival after 
 its real meaning has been entirely lost. It came from the 
 Franks of the ninth century. We find Hugh Capet requiring 
 a chirograph covenant in two parts of Arrone the son of 
 Lothaire as the condition of his investment as Archbishop. 
 
S93 
 
 It required signature and seal; if not the former, the 
 latter at all events; and the archaic need of available 
 proof for every valid transaction demanded also that it 
 should be executed in the presence of subscribing witnesses. 
 Later legislation, providing for acknowledgment and re- 
 cord, made the witnesses superfluous, and the seal in many 
 jurisdictions has degenerated into a mere scroll, and 
 the solemnity of eascution has become only a memory. The 
 simplicity and convenience of this method of transfer 
 superseded the Fine and the Recovery as common assurances 
 of title, and, with the aid of legislation, replaced them 
 entirely. The Fine, as a method of conveyance, accQmplished 
 three things. It shut off and barred every dormant but hos- 
 tile title after a year and a day, and, later, after five 
 years: it defeated an entail and opened the land to a free 
 alienation; it enabled a married woman, with the assent 
 of her husband, to transfer her separate landed estate. 
 In the latter case she was examined by the Judge, apart 
 from her husband, t o see that she understood the effect of 
 her action, and that no compulsion forced her consent. 
 Itien the Fine and Recovery were abolished by statute the 
 useful things about them were preserved by a frank and 
 open legislation which akalabc avoided fiction and the 
 fraud and artifice of the old proc©aure. It was enacted 
 
694 
 
 that the Indenture of the tenant in tail should convey a 
 fee simple, and cut off the heirs and the remainders, sub- 
 ject to a reasonable restriction. That restriction was 
 that where, by the settlement creating the entail, there 
 was a prior estate for a Jflife or lives, or a greater estate 
 though not for years merely, the consent of the owner of 
 such prior estate should be necessary to enable the tenant 
 in tail to convey a fee. Such prior owner was called for 
 that reason the protector of the settlement, but with his 
 assent the land could te fully and freely conveyed. As 
 to the married woman a similar remedy was provided. It 
 was enacted that she might convey her lands held by any 
 tenure, or her money subject to be invested in lands, by 
 her Deed as effect i^illy as if she were unmarried: but her 
 husband must concur in the Deed, and she must acknowledge 
 it before a Judge of the court at Westminster or of the 
 county on a private examination separate and apart from 
 her husband. That precaution came down to our own Time. 
 The law permitting her conveyance was product and proof 
 of her emancipation from the marital tyranny. We have lived 
 to see thi Roman doctrine of In manu, and the English rule 
 which merged the being of the wife in that of her husband, 
 give way to the juster and wiser law which recognizes and 
 protects her separate existence and her right to what is 
 her own. 
 
695 
 
 With the fall of the feudal system fell also the 
 Court Baron, which had no longer utility or jurisdiction, 
 and fell also those tools of ths Prerogative which menaced 
 ihe life and liberty of the citizen, the High Commission 
 and the Star Chamber: and in the courts that remained the 
 accused was allowed his counsel, hie witnesses were sworn 
 and heard, and the scandalous brutality of a Jeffreys and a 
 Scroggs was succeeded by the calm and impartial super- 
 vision of Judges who pre gamed innocence until guilt was 
 proved and left the jury free to discover and award the 
 truth. The ordeal, the battle, the compurgatory oath, the 
 wager of law, became ancient history; and the innumerable 
 writs made room for the simple summons which brought the 
 defendant into court, where his rights were tested by a 
 trial which flouted all technicalities, and had patience 
 only with what tended to disclose the truth. 
 
 And Slavery went out with the tide. The race which 
 had maintained it, which had made its part of Bristol a 
 human auction block, which sent the infection across the sea 
 to poison the whole colonial life, suddenly awoke to the 
 enormity of the offense and, in the case of Somerse t, an- 
 nounced through its Judges the law of personal freedom. 
 The complacent boast went out to the world that the air of 
 England was too pure to be breathed by a slave. Well: it 
 
69' 
 
 needed purification. There had been white slaves as well 
 as black: villeins regardant . attached to the soil and 
 sold with it: villeins in gross owned body and soul by- 
 manorial masters. These, more or less, occupied and tilled 
 their small fields, held only at the will of the lord, ex- 
 cept as that will hardened into a custom. Their teniire of 
 villeinage was not a free tenement which the king^s courts 
 and the novel disseisin would protect. It was regarded as 
 an unfree and bass tenure; not only on accoiiiit of what was 
 deemed the degraded character of the services charged upon 
 it, but because those services were uncertain, at the will 
 of a lord, at the whim of a master. The tenant might not 
 know at night what work would be required of him in the 
 morning, and any labor on his own narrow strip was broken 
 up and made ineffective by commands to be instantly obeyed. 
 We have already said what burdens of aid and heriot and the 
 like bore heavily on his holding, and how the taint of his 
 slavery passed down into the blood of his children. But 
 by a steady and persistent pressure upon the customs of 
 the manor, by giving the lord money to spend in the room 
 of day's work, the serf made his services somewhat more 
 definite and certain, and gradually his land, virgate or 
 half virgate, became heritable, recognized as such in the 
 court of the manor, upon whose records the right and the 
 
 services appeared, were copied on the court rolls, and he 
 
697 
 
 became a copyholder. Ere long he so far lifted himself above 
 the ditches and the muck that the king's court began to see 
 him, and endow him with rights, and deem him worthy of pro- 
 tection. But even when the freeholder could transfer his 
 tenement at will the copyholder could only do so by a 
 surrender to his lord and the admittance by the latter of 
 the mew purchaser. Nevertheless, the villeins, by one 
 route or another, became free men and the serfdom disap- 
 peared. In the time of Edward VI there were no villeins 
 in gross and only a few regardant , and those attached to 
 bishoprics or monasteries which were the last to let go 
 their hold. Against them legislation came to the aid of the 
 copyholder and freed him from the priest. He was allowed 
 to devise his land by will with the same effect as if 
 passed through &^ surrender to the lord; and finally, by 
 other statutes, was permitted to terminate the feudal 
 relation by paying a fair remuneration to the overlord, and 
 so to turn his estate into a freehold. 
 
 Thus the English air was filtering out the taint of 
 slavery: but some germs remained, and began to show themselves 
 inthe relation of Master and Servant. The latter succeeded 
 the disappearing villein, and, while free to serve or not, 
 yet wore the collar and bore som.e of the burdens of a serf. 
 He became a servant: word born of servus , a slave: vrord 
 
698 
 
 about which even the modern housemaid discerns the historic 
 color, and so spurns it, as she very well may, and calls 
 herself by some pleasanter name. Blackstone describes the 
 servant of his day, employed within^ the house, or busy 
 outside of if. The former were either menial servants or 
 apprentices. The menial, if hired generally, was bound for 
 a year, but could be discharged or leave his employment upon 
 a quarter's notice. He had no legal possession of his 
 master's goods and therefore could steal them and be hung 
 for the larceny if they exceeded in value twelve pence. 
 He was quite subordinate to the will of that master, wore 
 his livery as the badge of his station, was less regarded 
 than the Baron's dog, and developed into the "Yellowplush" 
 whom Thackeray sketched in his sarcastic way, describing 
 him as cringing and humble in the master's presence, but 
 sure to imitate that master's manners and especially his 
 vices. The apprentice was bound for a term of years to 
 learn a trade, brought some premium with him, but might 
 be reasonably chastised, and, if less than ten pounds had 
 been given with him and he ran away, he could be compelled 
 when caught to serve the added term of his absence. Children 
 of the poor were bound out by the overseer and two justices 
 until they were twenty-one , and ofter. were little better 
 than pauper slaves. Another class of servants Bladktone 
 calls laborers, and recites astonishing laws about them. 
 
699 
 
 redolent of the old taint of servitude. All persons having 
 no visible effects could be compelled to work: the law 
 defined for what periods in winter and summer: punished such 
 as refused to obey: empowered the justices or the sheriff to 
 fix their wages: and inflicted penalties for giving or 
 exacting a larger rate. The laborer's freedom was more 
 a form than a fact , and not much above the servitude of the 
 villein. Then Blackstone names still another class of 
 servants but begins to hesitate a little over his nomen- 
 clature. They are steward, factors, and bailiffs, but are 
 only temporary servants, that is to say, merely agents; 
 and the law of principal and agent begins to develop, and 
 separate itself from the atmosphere of servitude. It has 
 to deal both with possession and ownership, and is ex- 
 pec ially puiszled with the factor del credere , who is not only 
 agent to sell but, for an extra commission, guarantees the 
 payment of the price by all of his vendees. The problem 
 grew from the operation of the statute of frauds. Whether 
 the contract was to be deemed "original" and so outside of 
 the staiute and valid without a writing, or was to be re- 
 garded as "collateral" and so void if resting only in parol 
 became one of those difficult questions of statutory inter- 
 pretation which the Judges had to face. It is little wonder 
 that they hesitated and disagreed. At first the English 
 courts held the contract to be collateral and void for want of 
 
700 
 
 a writing. They said the factor's guaranty was a promise to pay 
 the debt of a purchaser to the principal,, and ao a promise to 
 answer for the debt of another. But the question crossed 
 the sBas^ and confronted the supreme court of the state of 
 Hew York, where it met with a different answer. That court 
 held that every sale by a factor made him at once liable to 
 the principal for the purchase price, and the latter need 
 look no further; that he had no necessary concern with the 
 vendee, except as fixing the date and the fact of the fac- 
 tor's original and absolute liability for the price. Later 
 the English court reconsidered the subject and adopted the 
 American viev; as resting upon the sounder and better reasons. 
 These cases give us a single instance out of hundreds in which 
 the words of a very brief statute have involved for their 
 interpretation an enormous mass of judicial reasoning. 
 Chancellor Kent declared in his GTommentaries that the con- 
 struction of that statute had already cost England more 
 than a million of pounds sterling; and the questions which 
 it originated are still taxing the patience and ability of 
 the courts on bothsides of the ocean. 
 
 In following the trail of the villein we have been 
 led far away from the land law and must get back to it for 
 a siagle further purpose. 
 
 Blackstone tells us that the Common Law abhors a 
 perpetuity- That seen-s to be true, but after a very im 
 
701 
 
 perfect faehiSn. T^e persistent war against estates held 
 lEjil mortmain, or by corporations having perpetual succes- 
 sion, and the ingenious efforts, stopping not even at fraud 
 and falsehood, to cut off entails and secure for land free- 
 dom of alienation indicate that truth. There were strict 
 rules for the creation by Deed of estates in remainder, 
 and occasional hints that limitations must not be unreason- 
 able or too remote;, but nobody seemed to suspect what a 
 means of creating a long suspension of alienation lay hid in 
 the execEutory divise operating through a last will and testa- 
 ment. That devise differed from a remainder in three res- 
 pects. It needed no particular estate to support it and 
 without such help could vest in the future. It pern.itted 
 a fee to be limited after a fee, which could not be done 
 by Deed. And a remainder could be limited in a chattel 
 interest after an estate therein for life. It was only 
 said that the contingency upon which the devise was limited 
 should be reasonable, and not go beyond a life or lives in 
 being and a moderate term thereafter. Somebody saw the pos- 
 sibilities of a long accumulation hidden in these characteris- 
 tics, and very soon an object lesson was on the way. In 
 the thirty-ninth year of the reign of Geroge III, and a few 
 years after we had parted with his majesty, there broke 
 upon the courts the astonishing will of Peter Thelusson, — 
 
702 
 
 a case so famoue and so remarkable in its facts and its 
 consequences that we should hardly be excused if we failed 
 to give it attention. It is reported in the 4th of Vesey 
 at page 227 under the title of Thelusson v, Woodford and ac- 
 companied by an explanatory note dealing largely with de- 
 tails outside of the formal proceedings. It was heard be- 
 fore the Chancellor, Lord Loughborough, who was so impressed 
 with the importance of the case and the difficulties sur- 
 rounding the questions involved that he called to his aid 
 two of the Judges of the King's Bench and the A3|4eter of 
 the Rolls, who sat v/ith him as assessors or advisers. The 
 Chancellor, as plain Alexander Wedderburn, was originally 
 a Scothh lawyer who, resenting the abuse and contumely of 
 an older member of the Bar, poured out upon him an astonish- 
 ing volume of invective and sarcasm, and, when rebuked by 
 the court, tone off his gown and threw it at the Judge's 
 feet and turned his back upon that court forever. He went 
 to London, and, helped by his great knowledge of the Civil 
 Law, became a successful advocate in Equity, but soon plunged 
 into politics where he shifted frcjn one party to another 
 like a weather vane, and guided only by the consideration 
 of what seemed most likely to promote his own rersonal 
 interest. Junius said of him with cutting sarcasm "there 
 is som.ething about Wedderburn that even treachery cannot 
 trust." As the case of Thelusson came before him we are 
 
'OS 
 
 glad to see at his side Lawrence and Puller two of the ablest 
 of the Ooamion Law Judges. Peter Theluseon ie said to have 
 been of Swiss parentage though born in the French capital. 
 He came early to London where he was naturalized, and em- 
 barking in businasesaccujiiulated a large fortune. Cn hie 
 death it was estimated at six hundred thousand pounds. 
 He had three sons, three daughters, and eight grandii±±*xBE»- 
 children living at his death, and two more were born after 
 hid death but within the normal period of gestation. Six of 
 the grandchildren were males. There is no intimation that 
 his relations with his family were at all strained; yet he 
 made for them only a moderate provision and tied up the 
 bulk of his property for three generations by creating a 
 trust for its persistent acciomulation; requiring the 
 interest and rents and profits to be invariably converted 
 into principal and to be held, first, during the lives of 
 hie three sons, second, during the lives of his grandsons, 
 and third, during the lives of their issue living at his 
 death or born in due time afterward. The suspension of 
 enjoyment thus was for nine lives in being and a possible 
 minority of twenty-one years. The experts who were consulted 
 upon the mathematics of the problem estimated on the doctrine 
 of average lives that the final vesting would be postponed 
 for seventy years; that the accumiilation directed would carry 
 the estate to more than eighteen million of pounds; and rr . 
 
704 
 
 Hargrave calculated that, if it all finally vested in one 
 devisee, — and in case of a failure of the blood of the 
 Thelussons it was to vest in the king or his successors,— 
 the aanual income of such ultimate devisee would exceed 
 two millions of pounds. With Mr. jra^fgrave opposed to the 
 will was a strong array of counsel, while supporting the 
 will were the Crown officers, among whom was Sir John Scott, 
 then Attorney General, who later became Lord Eldon and 
 Chancellor. The most exhaustive argument^ the will was that 
 of Mr. Hargrave. He gives us very much of the history of 
 the executory devise. He notes its parallelism with and 
 yet difference from the icemainder in fee operating upon 
 lands, and admitting that it had a wider and freer scope, 
 yet insists that in its origin it was not so much a right 
 as an indulgence allowed in order to help the settlem.ent 
 of estates in favor of future heirs, but without pre- 
 venting its their enjoyment in the meantime; that at first, 
 and with apparent hesitation, the courts allowed a limita- 
 tion for one life in being and a minority, and then ex>- 
 tended it to lives in being and such minority, saying that 
 "the candles were all lit at once" and so the suspension 
 was for the one life of the longest liver, and finally 
 treated the poetumous child as in being for the purposes 
 of the rule, but oaly when it was for his benefit. He 
 argued, therefore, that a control of the court over the 
 
705 
 
 extent of these devises always reraaiaed, and that they had 
 never beeia sustained where the sole purpose was to effect 
 acci:usulati03£, but only when some other, lawful and laudable 
 pttVpose involved the regretted necessity of a suspensioH. 
 The core of his argument v/as that the devise not only sus- 
 pended aliftaatioa but destroyed all enjoyment until the 
 ultimate vesting; that the object was impolitic and per- 
 nicious; that the postumous child was deemed in esse not 
 for his benefit but to inflict an injury upon him; and that 
 the discretion of the court to fix a boundary beyond which 
 accumulation should not go ought to be exercised in a case 
 80 monstrous and dangerous. 
 
 His argument did not succeed. The court sustained 
 the limitations of the will: but the Chancellor was so 
 impressed with the dangers of such perpetuities that he 
 advised remedial legislation, ajad an act was passed fixing 
 the limit of permitted accumulation for the life or lives 
 of the/feettlor or settlors, or the term of twenty-one years 
 after his or their death, or the minority of any person 
 living, with scaae other provisions as to the unborn, child and 
 the minority of those who might be entitled. But the results 
 of the Thelueson accumulation fell far short of the actuaries^ 
 calculations. After sixteen years it added to capital only 
 about, eight thousand pounds. Expenses of administration de- 
 voured about one hundred and thirjfy thousand pounds: so that 
 
r06 
 
 the trustees and the Chancery swallowed, the bulk of the ac- 
 cruing Income. Peter fed sharks, instead of building up a 
 great fortune in the future. One may see that the satire 
 of Dickens in his Bleak House, over the imaginery case of 
 Jarndyce v. Jarndyce, and through the fluttering insanity 
 of "poor Miss Flite" was thoroughly deserved by the intoler- 
 able delays and wasting expenses of the English Chancery. 
 
 We may now part with the land law, and turn our at- 
 tention to what has become the larger and equally in-portant 
 field of Contract. We have seen how it grew up at Rome, 
 disappeared under the barbarian rush and conquests, came 
 into sight again in England, and began to develop itself 
 out of actions sounding in tort. The foijndation on which 
 it rested was the doctrine of Consideration, adopted as a 
 test of validity, and about which the modern conception of 
 Contract has so revolved and with such a wealth of reason- 
 ing and sweep of conseqiences as to earn for it in our study 
 both abundant room and patient examination. 
 
 in the region of Contract Blackstone gives us another 
 "enigma" as "hopeless" as that which Bract on furnished to 
 the troubled eyes of Maine. For the learned Justice founds 
 the whole theory of Contract upon the Civil Law. He recites, 
 as constituting it, the four forms of the Roman stipulation, 
 sparing none of the original Latin; then adds that it must be 
 based on a sufficient consideratiori which recalls the causa 
 
707 
 
 of the Civilians; and declares that the Common Law had 
 adopted the maxim of lihe Corpus Juris that from a nude Pact 
 no action springs. Somebody should have punished him for 
 his disloyalty to a Saxon evoultion. The courts undertook 
 to define that essential and necessary consideration which 
 the commentator merely illustrated, and did not attempt to 
 enclose within an abstract definition. They said that it 
 must be some benefit to the party by whom the promise is 
 made or to a third person at hie instance, or some detri- 
 ment sustained at the instance of the party promising by 
 the party in whose favor the promise is made. That alterna- 
 tive description has of late been analysed into the simgle 
 condition of a detrim.ent to the promisee; but we may adhere 
 to the older definition as more familiar and less likely 
 to be misunderstood* 
 
 The origin of the doctrine has been located in three 
 different directions. Judge Holmes suggests that it grew 
 out of the necessities of the transaction witness, in an 
 age when writing was little known and there was no other 
 possible method of establishing the truth . Those witnesses 
 could testify to no fact unless to one actually transpiring 
 before their eyes, and hence, over and over againjif and in 
 all directions, we have seen the Law demanding a public 
 livery of seisin on the land, and actual transfer of goods 
 or some part thereof on a sale, so that in a dispute there 
 
708 
 
 might be secta or suit on one side and compurgators on the 
 
 other who could testify to what "they with hiir, saw" or at 
 
 least certify to the oath of the party who did see. It 
 
 followed that in every transfer of property, enforceable or 
 
 protected by the law, there must be an actual transfer of 
 
 and tangible , 
 something visible/that quid pro quo out of which Debt arose: 
 
 which, necessarily, would always be the causa or considera- 
 tion of the contract. The Judge added that when v/riting and 
 vseals came in, so that the sealed instrument admitted the 
 debt, there was no longer need of the transaction witness 
 and so no consideration was irfequired to be proved. The 
 seal confessed it: had a probative force of its own: so 
 much so that it was asserted by Glauvil that a man was 
 bound by his seal even thought it had been affixed without 
 his consent. To this view of the origin of Consideration 
 Matfland demurs. He asserts that the need of secta or suit 
 was not peculiar to the action of debt, but was required 
 also incases of assault: that there is no reason to be- 
 lieve that the loan of money required official witnesses: 
 and that such witnesses were only called in to protect a 
 purchaser from a possible charge of theft. These sug- 
 gestions do not seem to us conclusive. That suit was not 
 peculiar to debt alone, merely shows how wroad and wide was 
 the archaic need of transaction witnesses: that the loaning 
 of money did not require the only possible evidence, is to 
 
 say that the lender meant to risk it? lose and the borrower 
 
709 
 
 to stand unprotected against a charge of stealing it: and 
 the prominence of cases of theft simply shows the early 
 and common taste for "lifting" cattle. The Saxon stole 
 an ox and the Indian a horse by a sort of natural instinct. 
 
 A second theory of the origin of Consideration is 
 that the Common Law borrowed its doctrine from the Cemonists. 
 But some difficulty of dates intervenes. It is maintained 
 that the doctrine appeared first in the king's courts and was 
 borrowed thence by the^Qancnists. Granting that, it may 
 still be true that the doctrine came direct from Rome 
 without intermediate help. It i^is significant that Black- 
 stone jumped the Canonists and went at once to the original 
 fountain. 
 
 A third theory has been elaborated with much patience 
 and learning by Professor Ames, and at about the saarie time 
 was formulated by Judge Heire . This derives the detriment which 
 is the essence of our Consideration from the action on the 
 case for Deceit, which becairie an action of special assumpsit , 
 and so passed from tort into contract. That passage need 
 not siirprise us, for every unfulfilled promise operates 
 on the promisee as a deceit, and if the tort be waived as 
 it may be, only the assumpsi t remains and the action be- 
 comes one on contract. Indeed, even at this day, every 
 cause of action on contract may be formulated in terms of 
 tort, for at bottom they all/rsst on violated duty or a 
 
710 
 
 deceiving promise. There is little ground for wonder that 
 bailment even yet vibrates between both. The theory of 
 origin referred to indeed shows how the doctrine of con- 
 sideration forced its way to the sufface froci beneath a mass 
 of writs and the load of an encumbering procedure, but does 
 not necessarily deny an older source of the doctrine itself. 
 
 If we were obliged to choose between these theories 
 we should give the preference to that of Holmes. It goes 
 back of Rome amd the English writs. It rests upon an archaic 
 need of witnesses to every valid transaction, so universal, so 
 imbedded in the Past, that in the recently deciphered laws of 
 Hamurabbi, — seven hundred years older than those of Moses, — 
 we find provisions of this sort : that any one purchasing 
 silver or gold or a slave without witnesses shall be deemed 
 a thief: and that if any one entrusts to another gold, silver, 
 or other personal property for safe keeping he shall exhibit 
 the articles to a witness and thereby close the contract. 
 When a custom gets into the literature of an Age we are sure 
 it is widespread and invariably respected; and, as long ago 
 as the time of the old Greek poet, Hesiod, we hear hin: say- 
 ing, "stipulate your price beforehand with a friend, and 
 then, in a bargain with your brother, laugh, and call in a 
 witness." We ha^^e already noted numerous instances of the 
 same character and in almost every legal system, and the 
 
711 
 
 consequentj/need of and demand for those open and visible acts 
 which in every case are i^dentical v/ith the basis of Oonsidere 
 tion. It may be, nevertheless, that all three theories, in 
 greater or less degree, are true of its origin and helped to 
 make it a test of Contract: and so that we may give eacii its 
 place and need not be compelled to discard either. 
 
 But whatever the origin of Consideration, it was soon 
 attacked from many directions, and its true meaning and scope 
 and almost its very existence put in jeopardy. Very early 
 three groups of facts occurred to which no consistent answer 
 was deemed possible without so modifying its adjjudged defini- 
 tion as to warp its meaning and destroy all its utility and 
 all traces of its origin. The first of these was the case of 
 a debtor whose lia.bility was ended by the bar of the statute 
 of limitations but who, nevertheless, made a new promise 
 to the creditor to pay the old debt in full. The second was 
 the case of an infant who contracted a debt for something 
 beyond necessaries and after he came of age promised to pay, 
 The third was that of a bankrupt who, after his discharge 
 becoming able to pay, promised full satisfaction to his 
 creditors. These cases are cited by Markby in his attack 
 upon the logic of consideration. In each of them the credi- 
 tor was entitled to succeed. Lord M£.nsfield rested the 
 right to recover on the new proiaise, but was puzzled to find 
 
71S 
 
 a present considere-tion for it, an<3.; so quarreled- with the 
 existing definition. He said it was too narrow and reasoned 
 that the debtor, although his debt was outlawed and could 
 not be recovered, was still under a moral obligation to pay, 
 and that moral stress was a sufficient consideration to sup- 
 port the new promise. The sarae reasoning led to a recovery 
 in each of the other two cases. Now when the new promise 
 was made no benefit accrvied to the promisor and no detriment 
 was suffered by the promisee. Nothing valuable passed 
 between them. To call the moral duty of payment a considera- 
 tion was to forget its origin and purpose and destroy it 
 utterly as a test, and put in its place the inquiry whether 
 the party ought as a rr.oral duty to pay. But, morally, 
 every j^promise ought to be fulfilled, and so the door was 
 opened wide to a great muster of r^irely gratuitous promises. 
 Men rp-' +^h3 evil and rejected the test. They saw, too, 
 that it was needless as a solution of the problems raised. 
 The st-atute of limitations is not a normal right of the 
 debtor but a privilege conferred upon him by the State. 
 He must take it, therefore, upon the conditions which the 
 State attaches to its gift. These conditions are that it 
 shall be waived and lost and his old liability left to 
 operate in full force if he fails to plead the statute in 
 his defense, or if he so far disregards it as to make a new 
 and voluntary acknowledgement of the debt or promise to pay 
 
713 
 
 it. That promise, express or impled, is not a new ccntract 
 for which a conBideratior] rovM be sought. It operates siijply 
 as the reruoval of a bar, the waiver of statutory relief. The 
 debtor is not sued on that promise. The action against him 
 is on the old debt fully supported by its own consideration. 
 That debt is not cancelled or destroyed by the statute which 
 operates only upon the remedy. If the debtor pleads the 
 statute the creditor may defeat the plea by proving the new 
 promise: not as a substantial ground of action, but as con- 
 clusive evidence of a waiver by the debtor of a defense 
 which otherwise he might have successfully interposed. 
 The same line of reasoning applies to the infant or the 
 bankrupt: and so all trouble over a consideration for the 
 new promise, and all necessity for resort to the dangerous 
 notion of a u.oral obligation disappear. And that Is equally 
 true in the case of a legatee sueing an executor in a court 
 of law who has expressly prcniised to pay a legacy given 
 by the Will, and which was the exact problem forcing fro-;; 
 Lord Mansfield his theory of a moral obligation as sufficdalit 
 to create a valuable consideration, ( A"^kins v. Hill, 
 Hawkes v. Saunders. 1 Cowp. 284. 289.) The true ground 
 of the action was not the projaise, but the trust duty lying 
 behind it, and for which the receipt of the trust fund was 
 an ample consider at ion. The effect of the promise v/as, not 
 to make a new contract for which a new consideration must be 
 
714 
 
 discovered, but to so conclusively adr^iit a sufficiency of 
 assets with which to pay as to make needless a resort to 
 Equity or the Ordinary for an accounting, and to enable a 
 court of law to see an absolute debt absolutely due which 
 it had Jurisdiction to enforce. 
 
 But the doctrine of Consideration had foes thick 
 about it and was menaced from other directions. There has 
 been little trouble over unilateral contracts which have 
 been executed on one side for that execution furnishes the 
 consideration. If one buys an article to be delivered later 
 and paid for on delivery the title passes at once to the 
 vendee, or, if bought on the instalment plan, so that the 
 vendor retains title the possession passes to the buyer. 
 But where the contract is bilateral and executory on both 
 sides the logic of the dictrine has found itself in peril. 
 Some cases have been reconciled by She Roman theory of a 
 Novation or the substitution of a new contract for an old 
 one rescinded. Thus a builder ggrees in writing to con- 
 struct dljiouse for a ^.iven sum, and, having done part of 
 the work, becomes discouraged and abandons the rest. The 
 owner, to induce him to do what he is already bound to do, 
 promises to give an additional sum. Professor Air^es shows 
 us that this is the mutual resciesJon of an old contract 
 and substitution of new one which has it immediate and present 
 consideration. 
 
715 
 
 But the case of a compromiee with his creditors by 
 a failing debtor for a less svan than the a^uount actually- 
 due has always put legal logic under a strain because of the 
 obstructing rule that a promise to pay a less svxa in dis- 
 charge of a greater is without consideration. That rule, 
 foimded on a mista-ke, is steadily disappearing, but has 
 enough of vitality left to force us to find for the credi- 
 tor's promise some collateral and additional benefit or harm 
 to one side or the other, In^C a note to Anson on Contracts 
 Professor Huffcut nair.es three such efforts with an evident 
 distrust of them all. The first is that the considertation 
 moves from the debtor and consists in his i_rocuring the 
 assent of all the creditors, to wi ich it is answered that 
 he may not have done so at all, but the offer may have come 
 frori them without the leant stir on his part. A second ex- 
 planation is that the creditor mutually promise each other 
 for the benefit of the debtor. But in many jurisdictions 
 the debtor cannot enforce such an agreement because not privy 
 either to the contract or its consideration, and so there 
 would be no compromise binding upon him. A Spdr third 
 suggestion is that the parties are bound on principles of 
 Estoppel. But that is an equitable rem.edy, and operative 
 outside of, and possibly even in spite of contract, and its 
 application concedes that there is no condiseration for the 
 promise, A fourth explanation has recently appeared in 
 
716 
 
 Street on the foundations of Legal Liability and eeeriiS to be 
 a repetition of the seoDond tiiKaiBy theory but in somewhat of 
 a different dress. It is that the contract is a mutual 
 bi-lateral agreement betv-een creditors not to clai;n more 
 than a certain portion of their debts, which agreement 
 needs no consideration of detriment to support it, but 
 vrhich brings an incidental benefit to the debtor. In that 
 author's mew of the bi-lateral executory agreeruent as 
 having and needing no present consideration of detriment it 
 will soon be made apparent that we concur. We have taught 
 it for several years, but it has not secured general approval 
 and remains a debatable proposition! His further view 
 mangles and distorts the contract actually made by cutting 
 out of it its most essential element and principal party, 
 and leaving the debtor not a contractor at all, but only 
 a person incidentally affected by the contract of others. 
 All these theories are quite artificial and unsatisfactory, 
 and, we are tempted to apply our general method to the 
 problem and see what it will do for us. That method, 
 founded on the truth that all law is product of human re- 
 lations, has led us continually to study those relations 
 as they in fact exist and -serve as the mould for the con- 
 sequent Law. Following that method we shall find that all 
 these compromise contracts have arisen under or in conteii.pla- 
 tion of insolvency, of bankrupt acts, or general assignments, 
 
717 
 
 as external suxDoundings, and have been made v/hen one or the 
 the other of thase obstructions, actual or threatened, 
 has for the time at least, blocked the creditors' direct 
 remedies. 
 
 Let us study first the case in which the debtor has 
 gone into voluntary bankruptcy. The normal effect of the 
 proceeding is to devote the insolvent's assets to the pay- 
 ment of his debts so far a^ tnose assets will go, and then 
 to discharge him from liability for any balance remaining 
 unpaid. That discharge comes from the law. The debtor 
 has a right to seek it and avail himself of it. When he 
 does so his debts are at once reduced to the amount of his 
 net assets and when those are exhausted any excess is ex- 
 "(inguished. The creditors may assent or dissent: it i^akes 
 no difference: the law wipes out the whole unpaid balance. 
 That is the new legal situation which confronts the parties 
 and in view of #iich they must contract, if they contract 
 at all. The creditors see that all remedy for their de.aands 
 and so the .demands themselves are inevitably lost, or in 
 imminent danger of being lost, beyond the net proceeds of 
 the assets. Those proceeds are sure to be reduced by 
 legal expenses and the sacrifices of a forced sale.. If that 
 waste can be avoided, so far there is a distinct gain to 
 the creditors. On the other hand the debtor sees that iff 
 allowed to adiuinister the assets himself he can reali^^e for 
 
718 
 
 the creditors a larger sum than the bankruptcy'- distribution 
 would yield, and perhaps make something beyond for himself; 
 or at all events save hie business and secure an opportunity 
 to regain a solvent condition. Under the pressure of these 
 facts the parties contract. The debtor agrees that if per- 
 mitted to retain or tal.e back the assets hs Vv'-ill pay at fixed 
 dates a certain Toercentage of the debtslj: the balance to be 
 cancelled: the creditors consent and the court lets go its 
 hold. Obviouely, there is something here very imch i^iore 
 than ag( m.ere bare agreement to pa.y a less bxhh in discharge of 
 a greater. As a consideration that is practically valueless 
 for what is cancelle d is already lost by the operation of 
 the la.vj. But the creditor gains two things by the ne?/ con- 
 tract. He escapes the expenses and sacrifices of the bank- 
 ruptcy and so reduces his inevitable loss to the lowest 
 possible minimum; and the percentage comes at once or at 
 definite dates instead of being tied up for an uncertain 
 period in the courts. He regards these as a distinct gain 
 out of the peril of the situation and contracts to obtain 
 it by the lessening of a loss. On the other hand the 
 debtor assumes the risk of so administering the retiirned 
 assets as to realise the prom.ised percenta^ie. He is not 
 bound to do so: he can ^o free without that effort. If he 
 fails he loses his time and labor and he voluntarily takes 
 
719 
 
 that risk. The consideration of the neiv contract is thus 
 founded on the new relations created by the bankruptcy and 
 is much more than the discharge of a larger sum, already 
 death-struck, by the payment of a smaller one. The creditor 
 gains a benefit vrhich he could not secure in any other way: 
 the debtor assumes a risk which he was not bound to assume 
 and forbears his right to claim a legal discharge on the 
 faith of the one given by the contract. 
 
 The situation is similar though not so clear and 
 strong where the creditor's remedy is barred by a general 
 assignment, and out of that ccraplication grows a ne.r con- 
 tract by way of compromise ; for in that case the assets 
 do not extinguish the whole debt by operation of law, but 
 its complete cancellation flows from the consent of the 
 creditors. And yet there is very much more in the new trans- 
 action than the mere satisfaction of a larger sum by the 
 paymeirt of a smaller one. The debtor ha? assigned, perhaps 
 with preferences, and had a legal right to do so. In pro- 
 mising to pay the agreed percentage he is required to sur- 
 render that legal right and to procure a re-conveyance from 
 his assignee with the common consent of all his creditors. 
 They assent because it is to their interest tc do sol They 
 regard it as beneficial and we have no warrant to analyse it 
 into an error of judgment. On the other hand the debtor 
 
720 
 
 revokes his assignment, or forbears, for the time at least, 
 his right to make one, and assumes the risk of an ability 
 to get the agreed sum out of the ret^arned assets. Forteear- 
 ance of a legal right is always a detriment to the promisee, 
 and there is added to that the assumption of a risk whicii 
 the debtor was not bound to assume. It is only by a total 
 disregard of the new situation born of the insolvency and 
 a limiting of ouj: thought to the airiounts of debt and pro- 
 mise that the sufficiency of the consideration can be 
 questioned. That consideration is a forbearance of legal 
 rights on both sides. The creditors forbear to sue, the 
 debtors forbear to confess judgments, to make a general 
 assignment or go into voluntary bankruptcy. It does not 
 matter if this agreement to forbear may not be expressed 
 in formal words for the actual forbearance begins at once. 
 It is necessarily involved in an element of the contract 
 and is always implied where not expressed. For if the 
 debitjor does not forbear he breaks the contract and the 
 creditor regains his ri^ht to the whole of the original 
 debt, while if the creditor repudiates and sues the debtor 
 may successfully defend. Forbearance of legal rights born 
 of the insolvency or set in operation by reason of it is 
 the very essence of the contract on both sides. Its precise 
 and intended purpose is to substitute for the Law's adminis- 
 
721 
 
 tration of the insolvent's assets an agreed administration 
 by the debtor himself which inevitably involves forbearance 
 of the legal rights pertinent to the situation on both sides. 
 
 It is suggested by Street that it "seems curious" 
 to hold "the accord" good where there are several creditors 
 and bad where there is only one. It would be more than 
 "curious"; it would be intolerable if that were true. But 
 it is not. The case is not one of "accord" at all, and 
 there are no authorities which hold a compromise with a 
 single creditor in a case of insolvency invalid and if 
 there were they would be not only "curious" but illogical 
 and wrong. In all of the cases cited, s«ve one, there was 
 no appearance of insolvency in the record, and in the one 
 exception it formed no ground or basis of decision but was 
 apparently regarded as an immaterial or negligible fact. 
 There is no reason to doubt that an insolvent ha.ving but 
 one creditor may make a valid compromise with hir;:. The 
 thoughtful lawyer who studies the case of Good v . Cheesman 
 (2 B & Ad. 355) in which these compromises were for the 
 first time validated, will be struck with the blind struggle 
 of the court for a consideration, and will observe that one 
 of the Judges had a glimmer of the truth for he noted the 
 "forbearance of the creditors." If he had gone one more 
 step on his way and noted the inevitable forbearance of 
 
722 
 
 the debtor the solution of the problem would have been easy, 
 ^ A much more difficult search for a consideration 
 
 awaits us Tfhen we confront bilateral executory agreeinents 
 in which the contemplated consideration does not exist at 
 the moment of contracting but is postponed to som.e future 
 day. A orders in writing fifty thousand tons of steel 
 rails at a named price to be delivered at the end of three 
 months and paid for at that date. B accepts the order in 
 writing and promises to furnish the rails. The contract is 
 valid. The law will enforce it. But where is the present 
 consideration for these mutual promises? Nothing of the 
 least value has passed between the parties. Each promise, 
 by itself is naked, nude, barren. How is it changed by 
 giving it for another of the very same" sort? Will two 
 nothings make a something simply by being exchanged? It 
 would seeni so, for the Law habit izally says that one promise 
 is a sufficient consideration for the other; that tw® mere 
 puffs of breath have enough^ of value to support a contract. 
 Of course, if the Law intervenes and arbitrarily adjudges 
 the promises to be enforceable each bec®cies a valid consid- 
 eraticn for the other, but that is not the question. The 
 inquiry is how, when the case first arose and validity had 
 not been adjudged, how 'Oould a consideration have been found 
 
whicli would make the mutual prcnises immediately valid. 
 Evidently, both the ancient and the ruodern lavr/ers per- 
 ceived the difficulty and contrived a remedy. The first 
 recjj.-'-Ted "earnest to bind the bargain." The last demanded 
 a "dollar" and their contracts read "in consideration of 
 one dollar to him in hand paid, the receipt whereof is here- 
 by confessed and acknov;ledged , " These lawyers could not 
 see value in mere words. The later law has dispensed 
 with these extrinsic solvents of the problem, indeed ha.s 
 doubted their sufficiency, and yet acts queer about it. 
 Although the contract for the rails is valid through every 
 hour of the three months, yet when the party comes to sue 
 on it, the Law requires more than proof of the prom.ises: 
 insists as a condition of recovery by B that he shall 
 either tender the rails or show himself able and willing 
 to deliver them. It dem.ands to see a real detriment suf- 
 fered by B. It refuses to be cheated out of its actual 
 and solid consideration. 
 
 But the question remains, where is it when nothing 
 but words have passed? 'What turns the mere Pact, the pure- 
 ly morlLl duty, into an actual and veritable contract during 
 all the three months of interval? No one has f acted that 
 problem with more of learning and ability than Professor 
 Ames. It is unpleasant, and apt to be quite unsafe, to 
 disagree with him, but at this point we must. He begins. 
 
734 
 
 ^- — seemingly, by introducing 
 
 into Contract the element of intent. He persistently de- 
 scribes the promisor as speaking animo contrahend i. If by 
 the use of this phrase he means only that the words of the 
 promise must be something more than a merely casual or 
 careless expression and such as justify the inference that 
 a real promise was intended no criticism will be required, 
 but if he means, as his language indicates, and his theory 
 ultimately requires, that intent is essential to validity 
 in Contract, which is the test proposed by Markby as a 
 substitute for consideration, we cannot concur. Every 
 lawyer who in his professional labors has ccome upon the 
 few cases in which intent is the test of liability knows 
 very well what a vagrant and uncertain element it is and 
 wants no more of it. But it is enough to say that in our 
 law of Contract no such test exists. As Judge Holmes tersely 
 puts it, "the making of a contract does not depend on the 
 state of the paxties' minds: it depends on their overt acts." 
 
 But the new theory develops itself. Its author's 
 first step is to change familiar names. He knows that an 
 act may very well be a sufficient consideration for another 
 acst , and, to get the benefit of that truth, he caMs a 
 promise an act. Now if any two things in the language of 
 the Law are radically different and steadily distinguished 
 
725 
 
 they aire an act and a promise. One means a thing done; the 
 other a thing only agreed to be done: one is a present 
 truth ^ the other a future outcome; one is a thing fixed 
 and certain; thtother unfixed and uncertain: one is a fact, 
 a deed; the other a word, an expectation. But whatever 
 name may be thrust upon these promises their inherent 
 character will not be changed, and the question yet confronts 
 us, — ^where is their consideration? Answer is next made by 
 turning to the other end of the problem, and framing a new 
 definition of consideration, which is this: " any act or 
 forbearance or promise given in exchange for the promise of 
 another ." That definition opens the door wide to purely 
 gratuitous promises. Thus, A promises B to give him a 
 horse at the end of the summer if B will accept it , and 
 B promises to accept it. Since "any" promise is said to be 
 sufficient consideration for another, the promise to accept 
 validates the promise to give, and B can enforce its per»r 
 formance. We are not inclined to admit the validity of sucji 
 a promise and so are assured that the definition is un- 
 sound, and practically destructive of the d^DCtrine which 
 it seeks to explain. The illustration shows that it is 
 not true, as a broad general rule, that any promise, whether 
 regarded as an actczi or not, is a good consideration for 
 another given in exchange, so as to require the courts, on 
 
726 
 
 their own theory, to enforce the agreement. To bring about 
 that logical compulsion the promise, considered as an act 
 must be one which, at the moment of its making, is supported 
 by some benefit to one party or some detriment to .the other 
 which has a legal as well as a moral character. Now v.-hile 
 the agreement has only its moral force there is neither 
 legal benefit nor detriment about it. One may perform or 
 not as he pleases, and reliance upon the promise is an open 
 and limdisguised risk, which the law tells a party is his 
 own folly. The difficulty, as we have said, was often sought 
 to be avoided by the artifice of a nominal consideration, 
 and when that was abandoned the rule was left illogical and 
 defensible in that direction only by the begging of the 
 question which has characterized every effoff^at explanation 
 until Ames escaped it, if he did, by resolving consideration 
 into a mere bub Die of breath, and stripping it of all its 
 understood and essential characteristics. For the illustra- 
 tion which he gives us to make his meaning clear apparently 
 involves an assumption of the thing in dispute. He makes 
 X promise to pay A if A will bind himself under se al to convey 
 land to X which A does. Of course the sealed obligation of 
 A. is an obvious detriment to him, for the seal imports a 
 consideration, and so A in exchange for the promise has not 
 merely made a counter-promise, but has incurred an admitted 
 legal obligation. The professor adds: "Precisely the 
 same reasoning applies in the case of mutual promises. 
 
727 
 
 Each party is content to have the promise of the othei,^ 
 given animo contra hendi, because each is thereby brought 
 within the rule of law which imposes an obligation upon 
 anyone who has received what he bargained for in return for 
 his promise." He thus appears to assume the anterior ex- 
 istence of the very "rule of law" whose existence is the 
 problem, and the question remains unanswereed how that r\xle 
 could have been derived from the logic of consideration. 
 That can only be accomplished by the process which Ames 
 adopts of depriving consideration of any necessary actual 
 value, and holding sufficient a merely theoretical value; 
 the ultimate result of which is to make contract rest 
 upon intent manifested by v;ord6,and so destroy the doctrine 
 of consideration entirely. 
 
 We believe it also to be quite certain that the 
 validity of the mutual promises does not defend upon the 
 separate character of each whether regarded as an act or 
 a word, but springs from the mutuality, the interlocking of 
 the promises with each othe^, their interchange when "set 
 in terms of bargain", as Holmes phrases it, which we have 
 heretofore seen was the effective element in the Roman 
 Consensual contract. 
 
 What then shall we say about it? We see no way ex- 
 cept to tell the truth. The first court which held such a 
 Pact as we have taken H for example to be valid as a con- 
 
 ract 
 
728 
 
 although only words and not even a nominal consideration 
 passed, did act jiC illogically and inconsistently with its 
 own theory, and yet acted wisely and prudently. Instead 
 of deducing effect from cause it reversed the process by 
 first establishing the effect and then fitting it with a 
 cause. It required but one illogical step, illogical be- 
 cause arbitrary, to reach the desired result: a step al- 
 most alwp.ys inevitable v/hen a rule of merely external 
 morality is to be transplanted into the law and to become 
 imperative. Judge Holmes says with entire truth that "the 
 distinctions of the law are founded not upon logic but 
 experience." It was out of that experience that the great 
 utility of the bi-lateral executory contract was demonstratec3, 
 and if the dropping of the nominal consideration took away 
 the formal logic that was but a momentary loss since with 
 the decreec. validity of the promises the- logic of considera- 
 tion easily returned. Thereafter it because logically cor- 
 rect to say that one promise is a good consideration for 
 another when "they are set in terms of bargain", for each 
 party by his promise assumes at once a recognized legal 
 liability. The truth about the matter has been very tersely 
 and pithily stated in a review of Street's second volume 
 which appeared in the Columbia Law Review. It was there 
 said that "the so-called "evolution" of the bi-lateral 
 contract consisted either in a legal accident or an arbi- 
 trary judicial assertion. Such a decision did of course lose 
 
72 £ 
 
 sight of the origin and nature of consideration and hence 
 from the standpoint of logic and viev/ing the law as science 
 the notion of the bi-lateral contract was anj'-thing but 
 beautiful. We think that the most that can be said of it 
 is that it was expedient. It would not be fair to fail to 
 point out that the author recognizes the absence of real 
 consideration in the bi-lateral contract. But his mistake 
 we consider consists in treating the bi-lateral contract as 
 an evolution v/hereas its introduction in-solved rather a 
 revolution." That citation sums up the case both forcibly 
 and correctly. 
 
 In euiopting the new Contract the courts were not 
 without precedent and example. They found that in the 
 consensual contract of the Civil Law- They"assimilated" 
 it promptly: but with characteristic wisdom and courage 
 they modified and improved what they took. The Roman con- 
 tract was narrow and restricted to a few specified cases. 
 The English jiidge brushed aside the restrictions and left 
 the new contract untrammeled as to its subject matter. 
 Beyond that they began to naturalize the foreign doctrine 
 by gathering it into their peculiarly English generali'ifta- 
 tion of Consideration, and were soon found saying that each 
 was a good consideration for the other, which was true enough 
 as the result of thair arbitrary action, but not true at all 
 as a creative cause: and then, through a demand of their 
 
730 
 
 procedure, they required that a real and actual considera- 
 tion should be shovm to exist at the date of performance 
 as a condition of recovery. Perhaps in the end we may be 
 permitted to say, what was true of almost all the doctrines 
 of the Common Lav/, that the bones of the mutual contract 
 were Roman, but its flesh and blood, its nerves and vitality 
 were essentially and thoroughly English. It needed no pre- 
 sent consideration of detriment at the moment of its making 
 but must alv/ays contemplate one existing at the date of 
 performance . 
 
 This Common Law, about which we have been so busy, 
 crossed the ocean with the Pilgrims flying from priestly 
 tyranny, and was part of the freight of the Mayflower. It 
 began its existence on our Indian-haunted shores very much 
 mixed with and quite subordinate to the religious notions 
 of the colonists, and reverting in the town-meeting to the 
 ancient court of the Hundred. But it grew in its new home 
 rapidly and steadily somewhat influenced by new necessities 
 and surroundings, but keeping step with the prosperity and 
 accumulating morality of the race. After years of com- 
 plaint and protest followed by war and independence it pre- 
 sented itself anew on the American shores in the Commentaries 
 of Chancellor Kent which be<Eame for us, what those of Black- 
 stone had been for the English youth, the doorway to the 
 
751 
 
 mastery of existing Law, So well and eo thoroughly was his 
 work done that it has not been drowned by the later flood 
 of comnient and exposition, but steadily and deservedly 
 holds its place. With him we may end our travels and pro- 
 ceed to the one remaining duty of gathering and formulating 
 the ultimate results of our Journey. 
 
752 
 
 XXII. 
 
 THE COMON LAW. 
 
 At this cloce of our invest igaticn we should gather 
 and consolidate its most important results. What light it 
 will throw upon disputed definitions of law and the fiznda- 
 mental principles on vjtiich it ^is built; and how it may 
 enable us to rank doctrines in an orderly sequence are sub- 
 jects which to some extent have already been discussed but 
 demand a more explicit attention. 
 
 In the foreground and first to be answered is the 
 question what, in the light of our study and the long 
 History we have traced, is this Law which we have followed 
 from its origin, and what are the fundamental principles 
 upon which it rests. For we are prepared nov/, if ever we 
 shall be, to judge intelligently between rival and con- 
 flicting definitions, and choose our place in the long dis- 
 pute. We may recall the broad and limitless definition 
 of the Civilians: "the knowledge of things human and 
 divine; the science of the just and the unjust." That is 
 very nearly the Stoic definition of Philosophy, and sweeps 
 into the Law the contents of all possible knov/ledge . A 
 much narrower conception was that of Xenophon who describes 
 it as "whatsoever the ruling part of a State, after de- 
 liberating upon what ought to be done, shall enact:" and 
 
73S 
 
 this was nearly followed by Hobbes who defined Law as "the 
 speech of him who by right couauandB something to be done 
 or omitted." These definitions are limited to one sole 
 characteristic of law vdiich is its compelling authority and 
 function, and exclude any necessary reference to Morality, 
 or Custom, or Divine wisdom, and were tersely paraphrased 
 by Ihering who defined Law as "the totality of the com- 
 pulsory rules which prevail in a State." Something more, 
 but something very airibiguous and uncertair , was involved 
 in Blackstone 's definition: "a rule of civil conduct pre- 
 scribed by the state commanding what is right and for- 
 bidding what is wrong," The latter phrase seems to have 
 been borrowed from the limitation of Cicero: " ^jubens honest a 
 prohibens contrarla ." What Blackstone meant by it is in- 
 ferable from his conception of a law of Nature developed in 
 his Intorducticn. He says, "this law of 'Nature being co- 
 eval with mankind and dictated by God himself, is of course 
 superior in obligation to any other. It is binding all 
 over the globe, in all countries and at all times: no 
 human laws are of any validity if contrary to this, and 
 such of them as are valid derive all their force and all 
 their authority mediately or immediately froti their originall' 
 We know, as a clear result of our study, t^iat his doctrine 
 is ^ utterly unsound and without adequate foxondation. It 
 
754 
 
 is the old confusing mix of Religion and Ethics with Law. 
 
 The author himself before he finished his work contradicted 
 
 it continually. If by the law of Nature he meant only that 
 
 inborn instinct of self-preservation protecting itself by 
 
 irresponsible force, extending itself to the extrinsic 
 
 lives and things brought within range of the personality, 
 
 becoming a right by the recognition and assent of the society 
 
 forming about, and so purely and intensely selfish as to 
 
 need the restraint of extrinsic authority, he would have 
 
 been within the truth of history. It is quite possible to 
 
 call that a natural right, and to say that positive law 
 
 should ajid does acknowledge and protect it, and is itsi^f 
 
 stronger and getter because it does so: but what it ought 
 
 to do is one thing: what by force of its inherent character 
 
 it may do is quite another. The Roman and the Spartan, 
 
 the Mosaic and the Arnericsan law were still such though 
 
 they disregarded and trampled on the original and natural 
 
 life and to his 
 right of the slave to his/liberty. But in this doctrine of 
 
 natural law lies the germ of the interesting debate which 
 has cone down to us, and which raises the question whether 
 the Law is simply the command of the State which the State 
 enforces, or whether it has not a further necessary and es- 
 sential element, derived from morality, and which, in a 
 common though inaccurate way, we call Justice and right reasoa 
 
735 
 
 Some preference for the latter view seems to have been 
 more or less involved in Sihe definitions of the philosophical 
 writers who have touched upon or busied themselves about the 
 subject. Thus Kant describes Law as "the sum total of the 
 conditions under which the personal wishes of one man can 
 be combined with the personal wishes of another in accordance 
 with a general law of freedom." In this view Law is the 
 restraint of human selfishness in the interest of Order and 
 Civilisation. That is a truth but hardly a definition. 
 Hegel's dogmatic description is "the abstract expression 
 of the general will existing in and for itself." The 
 meaning of that I excuse myself from any effort to ascertain, 
 Krause terms it "the organic ?/hole of the external conditions 
 of life in conformity to reason." What is meant by "conformity 
 to reason" involves over again the whole troublesome contro- 
 versy. Savigny describes La^ as "the rule whereby the in- 
 visible borderline is fised within which the being and the 
 activity of each individual obtains a secure and free space." 
 That again is a truth, and gives us the meaning of Law from 
 one point of view, but scarcely meets our demand for a 
 practical definition. 
 
 From these philosophical abstractions we may turn to 
 the analysis of Austin, which has served as the target for 
 all modern criticism. We recall his definition that Law is 
 "the aggregate of rules set by aien as pMitically superior 
 
736 
 
 or sovereign to men as politically subject." The steps 
 which ended in this, the least rigid form of his definition, 
 barred out morality and Custom as in no respect inherent or 
 essential elements of Law, and drew the line sharply be- 
 tween Law and Ethics and Law and Custom . We have already 
 called attentionto Maine's attack upon the soundness of this 
 definition, resting on the ground that it does not cover 
 and cannot be made to cover the rules of the Indian village 
 and of the Sclavonic House -conmiunity existing under a non- 
 lawmaking and merely tax -gathe ring Umpire. We have here- 
 tofore answered that these rules and the similar sway of 
 Custom elsewhere observable and dominating the early social 
 groups constitute, not Law, but, so to speak, the advance 
 couriers of Law, thin fringe of the coming array j that they 
 take theplace of and to some e-xient Jie rf orm the office of 
 the Law that is to come, which is exactly Bract on 's state- 
 ment of the limit and work of Custom; and so may be termed 
 inchoate or Customary law, but yet remain outside of the 
 pale of that Positive Law which we seek to define. Pro- 
 fessor Holland gives another answer. He refers to the fact 
 that over these communities was a general sovereignty, 
 even though tax -gathering and which rather robs than legis- 
 lates; that disobedience to the general Custom was either 
 
737 
 
 forcibly repressed or feebly accraiesced in by the local 
 authority J that in the former case it must, if only for the 
 sake of peace, be supported by the sovereign, and in the 
 latter case the rules cannot be called Law at all. It is 
 that result which happens when there is no sanction beyond 
 the general disapproval. 
 
 But passing by this form of criticism there are 
 others more formidable. They rest on Austin's words of 
 "command," of "sovereign", and of "rules set": and insist 
 that the large body of the Law has no such origin, but de- 
 pends for its vitality upon the common habit and custom and 
 the general sense of justice. Aaiong the advocates of that 
 theory appeared Lord Chief Justice Russell in an address 
 before the American Bar Association in 1890, and whose con- 
 clusions have been strongly fortified by an argument of 
 Jaiiies C. Cajter before the sanie Association. He insisted 
 that the mass of the Common Law has been evolved by Judi- 
 cial decision, — ^which cannot be said to spring from the 
 comm.and of the State; that the sovereign is under the Law 
 and cannot nationally be deemed to issue commands to him- 
 self; that any law wMch Eaiixass collides with the feeneral 
 habit and runs counter to the common opinion will fail to 
 be enforced and become a mere nullity; and that the judge 
 who decides does not make law but finds it crystallised in 
 the general habit and custom, and simply recognized what 
 
 already exists. 
 
738 
 
 To the first of these propositions we are not pre- 
 pared to assent. It seems reasonable to say that the Judges 
 do represent the State: that they derive their office and 
 so thddr authority from the governing power : and that the 
 decisions which they mkke and the doctrines they define and 
 declare may fairly be regarded as the commands of the State 
 issued through their agency. But the remaining propositions 
 of Carter^sargument appear to be sound and true and to in- 
 dicate a correct theory. That theory has great merit in 
 several directions. It shows us that where the sovereign is 
 not under the La?; there is no law at all, but only the will 
 of a tyrant resting on brute force, for that is not law 
 which merely issues orders and formulates no general rules, 
 and where the orders themselves operate only at the will 
 of the autocrat. The theory too holds up to the light 
 the hard and rigid outlines of Austin's "command" and "sov- 
 ereign", and the very important truth that law is of little 
 worth when against the general opinion. 
 
 Such criticisms of Austin's definition have bred very 
 much of interesting discussion and led to repeated attempts 
 at modification and improvement. Thus Professor Clark pro- 
 poses to say; "The law of a Stat© is the aggregate of rules 
 administered, mediately or immediately, by the State's 
 
 suprer:;e authority, or regulating the Constitution and func- 
 tions 
 
739 
 
 of that supreme authority itself: the ultimate sanction 
 "being in both cases disapproval by the bulk &f the members 
 of that state." This definition seeing excessive both in 
 its length and in its breadtth. It avoids one of the critisms 
 on Austin, but falls into a graver fault when it makes the 
 sanction of the law reside merely in a popular disapproval. 
 The debtor who refuses to pay will surely persist in his 
 refusal if the only penalty is public displeasure, indeed 
 he will rarely incur that since what the definition de- 
 scribes as "the ^ bulk" of the society will admire his 
 shrewdness and envy his luck . Judge Markby gives us a 
 better as well as a more compact definition: "the general 
 body of rules which are addressed by the rulers of a political 
 society to the members of that society, and which are 
 generally obeyed." This is Austin over again with his grim- 
 ness xxA a little softened and subdued, but with a condi- 
 tion of general obedience added. W^ do not admire the 
 addition. If one was arrested for profane swearing, made 
 a misdemeanor by statute, would it be a good plea for the 
 accused that the statute was generally disobeyed, and 
 therefore there was no law, and so there should be judgment 
 
 of acquittal? 
 
 What then is a correct definition? Probably one 
 absolutely perfect is not attainable: but we may acknowledge 
 
740 
 
 a preference for that f rained by Holland, if we are to leave 
 out of it all reference to the vital elements of the Law's 
 origin and working material. It has been approved by 
 judge Dillon in his Yale Lectures and by Pollock in his 
 essays on Jurisprudence. It is this: "A general rule of 
 human action, taking cognizance only of external acts, en- 
 forced by a determinate authority which authority is hujgian, 
 and axaong human authorities is that which is paramount in a 
 political society." 
 
 Whoever studies this definition will observe that it 
 includes all the elements which we formulated at the be- 
 ginning as aids to our search and ae essential and character- 
 istic. It describes Law, first, as a general rule of 
 human action: that is, as operating upon all % alike, or at 
 least all of a defined class, and so without respect to 
 persons: second, confining its regulation wholly to external 
 acts, or busy rather v/ith conduct than v/ith character: third, 
 enforced by a deteriv.inate authority, which shuts out the 
 indeteruinate sanction of a mere popular disapproval: fourth, 
 which authority is human, thus excluding what is or is be- 
 lieved to be a divine command: fifth, and which is the 
 paramount political authority, that is, the State. 
 
 But, excellent as this definition is and widely as it 
 prevails, is it sufficient, does it satisfy the matured and 
 intelligent thought? Has our patient study left us with 
 
741 
 
 no conception of Law except that of a sovereign standing 
 over us with a whip in his hand? We started with that 
 thought: must we end with it? We think not. In following 
 the trail of the Law's progress we have learned one thing, 
 with a certainty which is complete and absolute: and that 
 is that Law is never mere product of sovereign and arbi- 
 trary will, but always a growth from the soil of social 
 life J always a reflex of the external morality and habit of 
 the Tims; always framed from and constituted by the dictates 
 of that morality. The process went on slowly, gradually, 
 with an almost imperceptible tread; but our investigation 
 has revealed to us two instances at least where that con- 
 structive process showed itself openly, and on a scale 
 marvellous in its scope and in the courage which stood 
 behind it. What did our old friend, the Roman Praetor, do? 
 We saw him build up the whole mass of the Honorary Law out 
 of the external morality and prevailing custom common to all 
 known races, and 7:^6 ver once concealing or denying the pro- 
 cess. We saw again Opke , the crabbed and ugly, persistently 
 robbing the dusty footed traders at the Fairs of the Whole 
 mass of their customs and rules, and diimping the solid load 
 of the Law Merchant into the Common Law. We should recog- 
 nize the full meaning of such facts, and the obvious trend 
 of our whole investigation, and heed the lesson which they 
 
742 
 
 teach. We may not thrust ourselves into the awful company 
 of Sages and Philosophers and Jurists whose definitions have 
 survived: but we may, at least, express for ourselves the 
 thought that has grown out of our study and say: 
 
 Law is such of the rules of external morality and 
 general custom prevailing in a social organism as the 
 governing authority of that organism selects out, defines 
 and enforces. 
 
 That tentative definition will of course evoke criti- 
 cism: and the criticism will be just and unanswerable unless 
 careful heed be given to what we mean by the phrase "external 
 morality", and to the effort we have ma.de to define it 
 with some accuracy. The work, "morality ," has drifted away 
 from its primary meaning, and become about the most am- 
 biguous and treacherous work in himian use. It meant orig- 
 inally manners, customs, wages of conduct, mores , but has 
 had an et Meal element thrust into it which has almost 
 dislodged its primary meaning and made it stand for what 
 is good and just. To avoid the sunbiguity we have used the 
 phrase external morality, meaning by that to exclude any 
 necessary or essential ethical quality, though not at all 
 its incidental or modifying presence which in a given case, 
 may or may not appear: and understanding by it the total of 
 ways and manners and customs of a people which have grown 
 
745 
 
 up among them as product of their notion or belief or what 
 is, on the whole, most useful for the general order, com- 
 fort, and prosperity. This definition covers and is intended 
 to cover what tends to the political as well as social wel- 
 fare of the people and includes what we call expediency or 
 Public P3>licy — ^which is only one phase of the general morality. 
 Thus defining e^tternal morality we undertake to argue, 
 pressed by the force of our own investigation, that the 
 Common Law is wholly constructed out ofthat external morality 
 and framed of nothing else; and owes to that fact an authori- 
 tative force and power very much wider and greater than it 
 derives from governmental sanction. The argument to the con- 
 trary can only become effective by demonstrating that there 
 is some Lav/ ?/hich did not grow out of external morality 
 and prevailing custom, and is not a doctrine or process 
 chosen from them for definition and enforcement. 
 
 I knovr of no stronger effort to establish such a 
 proposition than that contained in the very able intro- 
 duction to Pollock and Mait land's History of English Law: 
 and if I can possibly show that the instances there cited 
 are not, in origin and effect, the product of something 
 which is outside of external morality and prevailing custom, 
 but are, on the contrary, derived from it and born of it, I 
 shall have fairly met the difficulties suggested. 
 
744 
 
 It is first said that there are laws which are 
 colorless or neutral, and have no trace of morality about 
 thenij and the typical instance cited is that of the law of 
 the road,— passing to the left in England and to the right 
 in this country and on the continent. Of this example it is 
 said that some rule is necessary but which,— to the right 
 or the left, — is totally immaterial. When the necessity or 
 even prudence of some rule for the travelers meeting on the 
 road is conceded an admission is involved that it is dictated 
 by the external morality of the race, which aims by a 
 unifBt5m rule to prevent accidents and ingiuries on the high- 
 way. Morality, having demanded a uniform mode of passing 
 as a measure of safety, the custom already existing as an 
 outgrowth of that morality dictates which way — to the right 
 or the left — the traveler must pass. The law of the road 
 therefore is obviously the product of external morality 
 and preasailing custom, and explains the different rules of 
 different lands. 
 
 Again it is said that "cases occur where the legal 
 rule does not profess to fulfil anything like perfect justice, 
 but where certainty is of more importance than perfection, 
 and an imperfect rule is therefore useful and acceptable." 
 But if the rule is "useful" it is because the experience of 
 the people has found it to be such, and if it is "acceptable" 
 
745 
 
 it is because it accords with the level of the external 
 morality of the race. If it is "imperfect" it is only so 
 because we measure it by a higher standard than that fur- 
 nished by the morality prevalent at its creation and out of 
 which it grew. No law ever has reached or ever will reach 
 "perfect justice". That is an ideal standard, always above 
 and beyond human morality; which changes with the years and 
 the growth of intelligence, and always floats higher with an 
 evasive lift the more we olisi^'^ towards it. The Law does 
 the best that it can in the light of its time, and that best 
 is measured by the morality from ^ich it draws its material. 
 
 Next it is urged that "there are cases where the Law 
 for reasons of general policy not only makes persons charge- 
 able without proof of moral blame but will not admit proof 
 to the contrary." The trouble here lies again in the word 
 "moral" as qualifying blame. It attaches to it an ethical 
 element of goodness or innocent intent, and weaves into it 
 that internal morality which we describe figuratively as 
 residing in the heart. The illustration given us shows this 
 clearly. We aasi are told that by the law of England "the 
 possessor of a dangerous animal is liable for any mischief it 
 may do, notwithstanding that he may have used the utmost 
 caution for its safe keeping." But bringing the dangerous 
 brute into the midst of the citizens is in and of itself a 
 
746 
 
 perilous risk, and has no utility sufficient to compensate 
 for the possible harm. The keeper knows that in spite of 
 his utmost care the brute may escape and do mischief, and 
 the general morality of the people decides that he who 
 ventures upon the known and inevitable risk shall take the 
 risk, and be responsible for the consequenoDes. His good 
 intent, his extreme care is matter of no moment. The moral- 
 ity of the time, founded on experience holds that he has 
 done a dangerous act in keeping the beast at all, and so 
 is blameworthy and should be held responsible for results. 
 Let him leave the brute to his native jungles or be ab- 
 solutely responsible for his cages and chains. So the Law 
 adopts and enforces the decree of the general morality. 
 Indeed, when the objectors admit that the rule of liability 
 is founded on reasons of "general policy" they simply sub- 
 stitute the word "policy" for morality, meaning all the 
 time one and the same thing. 
 
 Anew it is urged that ^ "a master has to answer for 
 the acts and defaults of a servant occupied about his 
 business, however careful he may have been in choosing and 
 instructing the servant", and however free from personal 
 fault. That rule has evoked many theories of origin and 
 justification. It is easy to see, as we have already seen, 
 how in the primitive days the father was identified with 
 the children and their act was regarded as his, since they 
 
747 
 
 were under his absolute control and utterly destitute of 
 means with which to answer damages. It is equally easy to 
 see how that identification should continue in the case of 
 a slave; but not so easy, though possible, for the thought 
 to extend itself over the servant, become free and at 
 liberty to serve or not. We can see how the notion failed 
 in the region of crime and penalty, and even in trespass 
 in AngloSaxon Times, and the test of command or consent 
 by the master was put in the vacant place. But experience 
 taught that the substituted test worked badly; that it 
 practically freed the master and left only a remedy against 
 the irresponsible servant : and then appeared the theory of 
 an implied -^command derived from the facet that the servant 
 did the wrong while engaged in the master's business. But 
 all along the line two things were obviously operating upon 
 and influencing the moral thought of the Times: one, pity 
 for the person in-giured and a conviction that he should 
 somehow have redress; the other, that the normal condition 
 of the servant could not furnish such redress, while that 
 of the master could. Who would sue the master to-day if 
 the servant was fully able to answer for all the damages is 
 a significant question which Maitland puts. J^d one might 
 add this further inquiry, — ^how careless would the master 
 be if he was never responsible for the act or neglect of 
 
748 
 
 the servant? Obviously, the history of the rule is that * 
 of a strugjae of the external morality of the Ages with the 
 problem of a recognised evil. The pendulum has swung some- 
 times to the severe, sometimes to the lenient curve of the 
 arc, but no theory has ever yet derived the rule from the 
 unsupported and arbitrary dictation of the State. 
 
 Finally it is asserted that there are cases in which 
 there is no room for moral considerations to operate, and 
 the illustration given is where a purchaser buys stolen 
 securities, capable of passing from hand to hand, from one 
 who has stolen them but has made the purchase in good faith 
 and without fault or negligence, and one of the two — owner 
 or buyer — must bear the loss though neither are blamable . 
 The Law is certainly puzzled over such cases, but that is 
 because the moral thought from which it springs is equally 
 puzzled by the situation. In such a case the judicial mind 
 studies the facts closely in search of some moral ground 
 like negligence on which to base a preference for one party 
 over the other. If it finds none it either decides that 
 the misfortune must rest where it came, — "the tree must lie 
 where it falls," — or more commonly studies to determine 
 which location of the loss as between the two men equally 
 innocent will be best for the general interests and con- 
 venience of the people. It observes that if it is gold 
 coin or bank bills that are stolen it would be intolerable 
 
749 
 
 to allow the owner to pursue them in innocent hands. It 
 then observes that promissory notes payable to bearer and 
 passing by mere delivery are in the same category and 
 logically applies the Bule to them, and then to coupon 
 bonds possession of which constitutes title. It saw how 
 business and commerce would be hindered and endangered if 
 no purchaser vsras safe against an unknown theft somewhere 
 along the line of transfer, and so solved the problem by 
 leaving the man who suffered the original misfortune to 
 
 bear the misfortune. If in some j'urisdictions a different 
 result was reached and the loss thrown on the innocent pur- 
 chaser it only shows how debatable the moral question isi 
 In those courts the obvious rule that a man could transfer 
 only such title as he had and that a thief has no title to 
 transfer, and so the owner remained owner, outweighed all 
 other considerations. The very disagreement shows how 
 
 -Close the moral question is and how easily the thought of 
 different communities, and so their law, might vary. Who- 
 ever says that the solution either way does not stand on 
 moral grounds injects into the word "moral" an element 
 which we have steadily disclaimed. And that ambiguity 
 discloses itself when the objector adds "there must be some 
 law for such cases, and yet no law can be made which will 
 not seem unjust to the loser." We may doubt whether any 
 law seems just to the man who suffers its penalty. The 
 
750 
 
 proper test is not the individual feeling of the loser but 
 the general moral thought of the comniunity which takes into 
 view all the elements and surroundings of the difficult 
 problem. The solution either way stands wholly on moral 
 grounds. And so I hope that I have fairly met the objections 
 formulated by an authority which I profoundly respect, and 
 that I may have helped somewhat to clear the subject of 
 the doubts which have surrounded it. 
 
 Up to this point the definition has been confined to 
 the Common La^v; but 1 believe it to be equally applicable 
 to Procedure and Legislation, although on the surface and 
 to an unreflecting viexv thay may seem to be, more or less, 
 product of the arbitrary will of the State. 
 
 Procedure is not doctrine although it often holds 
 doctrine entangled in its meshes, and more or less reflects 
 that doctrine in its operation. It is therefore very 
 properly called adjective law because its main office is to 
 aid and assist in turning doctrine into concrete application 
 and activity. That it is never the product of some sovereign's 
 arbitrary will; that it was never manufactured but always 
 grew; that so it harmonised with the average morality of 
 the Time, betrayed all its faults and developed all its 
 virtues; are lessons which our historic studies have in- 
 variably taught us. The two dominant elements of Procedure 
 
751 
 
 are, first, seme method of ascertaining the facts on which 
 judgment may rest and, second, a method of enforcing the 
 judgment when once rendered. In primitive days, as we have 
 already seen, the only fact was a killing or stealing, in 
 general sufficiently obvious, or at least chargeable upon 
 some neighbor tribe, and the judgment was revenge or re- 
 taliation. The process was moral measured by the existing 
 standard of morality which identified revenge and justice, 
 and held courage to be the principal virtue; for war was 
 the normal condition of the tribes. Ere long it ceased to 
 be so and peace became a comnion desire and the general rule, 
 leaving war an excseption; too common perhaps but still an 
 exception. Composition becomes the rule, at first voluntary, 
 at last imperative. And here the process of Self Help be- 
 gins to disappear and the intervention of the State becomes 
 necessary. The blood-price must be fixed. The sovereign 
 authority fixe# it not at all arbitrarily but according to 
 the valuation of the general opinion. That opinion does 
 not regard all lives as of equal value. That of the king 
 or count or chief is valued ruore highly than that of the 
 thane and his life as more valuable than that of the simple 
 tribesman and so the blood-price is graded accordingly. 
 But the ruling authority neither made the grades nor created 
 the values. It found them already existent and somply re- 
 
752 
 
 cognized what existed. In other words the ruling authority 
 steps in to enforce the prevailing morality of the Time, 
 but in a manner dictated and governed by the needs and the 
 deoxees of that morality. But all along the way there has 
 been trouble about the facts. Suit and compurgatory oaths 
 were rough and coarse methods, and these sometimes balanced 
 each other, and left the truth in doubt. Then the procedure 
 became an appeal to the Deity, and the hand was th-rust into 
 the scalding water, and the hot iron grasped, or the champions 
 pounded with their csLubs. Imm.oral? Not for them. Believ- 
 ing that the Divine wisdom would make manifest the truth, 
 it was not immoral to adopt a procedure which would reach 
 that result. But again morality outgrew the rude methods. 
 When the belief in the Divine intervention vanished some 
 other mode of ascertaining the truth had to be planned; and 
 here the morality ofdifferent races reached different con- 
 clusions. At Rome the question of fact was first left to 
 a judex or referees, and then under the empire to the 
 magistrate ; a method which yet prevails on the continent 
 where the Civil Law predominates. But in England by slow 
 stages it was left to the jurors, hearing the witnesses and 
 sworn to decide the truth. This method was complicated by 
 a vast system of writs, and as a consegaence by various forms 
 of action. But these writs we have heretofore seen were 
 
753 
 
 never the airbitrary construction of the sovereign power, but 
 dictated by successive and often new groupings of actionable 
 facts which the writs were made to fit. Later this com- 
 plicated procedure began to lag behind and far behind the 
 growing business morality of the race. The popular thought 
 assailed its vexatious forms and rules, and more and more 
 began to demand a simplified and less awkward procedure, 
 and a court of Equity less like a sponge of fortunes and grave- 
 yard of estates: and in obedience to that demand the systeui 
 was swept away and the present simpler and wiser practice 
 sjabstituted. The interesting process began with us in our 
 state of N6W York. It was not at all in its origin an 
 arbitrary edict of the ruling power. It was born of the 
 resentment of the people protesting against intolerable 
 delays, — the snares of a technical and complicated practice, 
 in which truth wae strangled rather than evolved or saved. 
 The system was framed largely by one scholarly and learned 
 lawyer, who, like Tribonian at Rome, comprehended the needs 
 and the demands of the intelligent morality of the day: and 
 revised by others with a view to constructing a simpler pro- 
 cedure, and one better suited to the needs and convenience 
 of the citizen. The demands of business and social morality 
 presided over the new Code, and shaped and moulded it: and 
 the State had nothing to do with it except to attach the 
 
754 
 
 formal seal of authority and make imperative the decree cf 
 the general n.orality. State after state watched the working 
 of the new system, studied the results which followed that 
 working, and, out of the experience thus attained, followe*^: 
 the example. If in some of our Qurisdictione that did not 
 occur, if one state clung to the Civil Law and others to 
 the old English procedure it was because long habit and i 
 venerated custom were strong enough to resist the change. 
 Then England ventured upon the experinient , with modifications 
 due to her own peculiar needs, and taking the new system 
 from the hands of chosen citizens, fitted for the task, 
 and whose sole guide was a clear conception of v/hat suiited 
 the needs of the race. It seems impossible to resist the 
 conviction that Procedure, like substantive law, grew 
 from the needs 8.nd the general morality of the nations; 
 reflected those needs and that morality which were trans- 
 planted into the Law to furnish its working methods, and 
 after having been carefully selected out were first strictly 
 defined and then made imperative. 
 
 Something similar seems to be true of legislation. 
 To a casual glance it appears to be product of an arbitrary 
 machine v/hich grinds like the "mills of the Gods." That 
 impression, tested by the results of our historic travel, 
 is seen to be an obvious error and one of large proportions. 
 In our day the written law is always made either by an 
 
755 
 
 Autocrat, or by representatives of the people. 
 In the latter case we know that the legislation evolved 
 reflects alwyorS the popular judgment, and stands at the 
 level of the general morality. The legislative body comes 
 from the people, is more or less a sample of the mass, and 
 has in its veins the blood of their virtues and their 
 faults. It is full of the general morality of the State 
 or the race and has no other atmosphere in which to breathe. 
 ll?hen any new enactment is proposed its authors understand 
 that it must bear the scrutiny of debate, be measured and 
 tested by the popular habits and needs, and cannot live 
 for an instant without some real or supposed necessity or 
 justification behind it. Its consider3,tion invofires an 
 inquiry into its probable effect upon the economic and social 
 life of the citizens, into the fairness and justice of its 
 expected operation, into the reality and the scope of the 
 need to be supplied or the remedy to be furnished. The 
 whole discussion about it rests upon grounds of general 
 morality and without some basis derived from that source 
 the measure would not have the remotest chance of life. 
 The entire debate about it has a moral foundation and all 
 the arguments come froiii the armory of the prevailing morality 
 and custom. Beyond that there is restraint and direction 
 from above. Over the Legislature usually presides that 
 
756 
 
 group of moral axioms born of the popular experience, and 
 which we call a Constitution. If not written as with us it 
 is in the air as in England, It crov/ds all legislation 
 into the domain of conceded morality, and builds barriers 
 against possible violations of fundamental rights belong- 
 ing to the citizen. And so if anything is founded upon 
 the external morality of a race it is surely the legisla- 
 tion thus framed by its chosen representatives. 
 
 It is true that the Legislature is sometimes de- 
 ceived, may on occasion mistake the moral quality of the 
 law proposed; or that lurking in a measure apparently 
 prMent and wise there may be f oiind a worfi or a phrase 
 skilfully chosen and deftly concedled in a tangle of sen- 
 tences which serfes as individual or corporate purpose 
 purely selfish and plainly unjust. But 4he very fact of 
 the concealment and the ingenuity of the mask betrays a 
 conscienciousness that legislation rests on an external 
 morality which the artifice violates, and so a fraud is 
 resorted to whose purpose would utterly fail if seen or 
 known. When the truth is finally disclosed repeal or 
 amendment swiftly follows, and meantime the noxious feature 
 of the law is eliminated by judicial construction, or an- 
 nulled as unconstitutional, or resisted and overwhelrted by 
 
757 
 
 the concentrated force of public opinion. It is a fraud 
 xaasqaerading as a law. If it be said that nevertheless 
 until repeal or annulment it remains a law during the 
 interval, and so we have an instance of a veritable and 
 enforceable law which is such though at odds with the 
 general morality the criticism rnay be parried with two sug- 
 gestions. The enactment was supposed to be in accord with the 
 public welfare and owed i'ts existence^ to that supposition. 
 When the mistake was discovered another doctrine of the 
 general morality came into play: that no law however bad 
 should be at the mercy of the individual but shoiild be 
 respected until annulled by the authority of all. The il- 
 lustration only shows that the morality of a people, re- 
 flected in their laws grows by experience and learns by its 
 mistakes. 
 
 Again: we are told that a law often emanates from 
 the legislative body, which is recognized and obeyed as 
 such, but which plainly violates the rules of morality and 
 even shocks the popular sense of justice: and a common il- 
 lustration is the law which once compelled the free states 
 to deliver up a fugitive slave. But the morality underly- 
 ing the law was that of the slave states. In them the slave 
 was property, and the law was built not only on long habit 
 but on a conviction that the bondage was best for the slave 
 himself. In t hose communities ministers of the gospel did 
 
758 
 
 not hesitate to justify the morality of the institution. 
 
 The free states for a long time accepted the law in deference 
 
 to the Southern standard of morality, and as a necessary 
 
 concession to secure that close and effective union upon 
 
 which the safety and propperity of the nation depended. 
 
 It is always a mistake to measure the morality of a law 
 
 by some later standard of a more advanced civilization. 
 
 But all lav; is not made by representatives of the 
 people, SoKietimes it springs from the will of an autocrat, 
 and the question may fairly be asked— what have we to say 
 to that? The answer involves several considerations. The 
 arbitrary ruler, ■v^tooever he may be, cares little or nothing 
 for his people except in t«ro respects. The safety of his 
 throne requires him to preserve order, and the support of 
 his royalty compels ithe imposition of taxes. As a general 
 rule, he makes no law outside of or beyond those two neces- 
 sities of his reign. Hence it is that v;hen we examine the- 
 dooms of the |;nglish kings we find alone a legislation against 
 murder and theft and assault, the three crimes which most 
 imperilled the order of the realm. They were forbidden as 
 violations of that order, the presex:^ation of which was, 
 if not the sole, at least the predoainant morality of the 
 Tim.e. If the autocrat went further, if he sought to regu- 
 late the relations of men with each other as it respected 
 their property rights he came at once into the domain of 
 
;59 
 
 morality to find the material for his work. If he sought 
 to violate the manners and customs of the people within 
 the range of their normal activities he met at once re- 
 sistance and rebellion. John tried it and had to yield to 
 his armed Barons: James tried it and was met with the pro- 
 hibitions of his own Judges. The history of the Past re- 
 veals that the autocrat has no liking for the field of pri- 
 vate law, or if he enters it comes under the influence and 
 domination of the ideas and habits of his people. And so 
 he is either a tyrant ruling his subjects as slaves with 
 no la?/ beyond his own shifting will, or if he makes any 
 recognizes and utilizes in his rulesj^ the thought and custom 
 of his people. 
 
 We have thus passed in review the objections most 
 commonly raised to the theory of law involved in the defini- 
 tion which we have ventured to formulate. I hope those 
 objections have been fairly met, but at all events the 
 study of them has served to confirm convictions which have 
 steadily beem gaining strength. One other thought will fur- 
 ther support those convictions. We have noted in our study 
 of judicial action how constant are the appeals of the courts 
 to the average conduct of men and to the moral ideas pre- 
 vailing among them. We have seen in bailment how the degrees 
 of care required are measured by the average conduct of the 
 prudent man; how gegligence is asserted wh«&n that conduct is 
 
766 
 
 departed from; how fraud is ascertained by its variance from 
 the assumed action of honest men; how a felonious intent 
 is deduced from outward circumstances; how the customs of 
 merchants have been transformed into imperative rules of 
 law; in brief, how in every direction the judicial habit is 
 solving its problems by an appeal to the ways and action 
 and thought of the typical man of the race. This persistent 
 appeal to rules of general morality, to the human experience 
 unfolding about us can hardly be justified unless we deem 
 the Judges autHorized by the very nature of their office to 
 apply to the problems of litigation the solutions which the 
 general morality of the people furnishes for choice and use. 
 They cannot enact statutes; they have never been formally 
 authorized to make law; and I see no way to justify the de- 
 cisions of the courts, as they have come down to us, and 
 
 is 
 are being daily dispensed, except to hold that it xi the 
 
 inherent nature of the judicial office to select out, define 
 and enforcje such rules of the general morality as are effec- 
 tive for the solution of the questions submitted for deci- 
 sion. We avoid all difficulty when 7/e adopt the terse ex- 
 pression of Carter: "The Judges do not make law; they find 
 it"; and that other vital phrase of SsaitBtB Holmes: "The Law 
 ie founded not on logic but on experience . f ?he argument 
 may be closed with the enactment of the German Civil Code 
 
 of 1896 ^ ich declares that "a juridical act against good 
 
761 
 
 morals is null." 
 
 T^rhaps I may be pardoned if I add still another 
 thought. The view of the law we have been considering 
 fully explains and justifies the nomenclature of our 
 English brethern who call their law the "Common" Law, and 
 describe it as "running back beyond the memory of man" It 
 is a "Common" law for it is founded on the moril ideas com- 
 mon to all civilized races: and that it runs back beyond 
 all hugian memory I have shown if I have shown anything. 
 The English lawyers therefore, and not we, seem to have 
 first and instinctively divined the origin and nature of 
 their law. To them be the meed of praise: to us only the 
 credit of showing, against their own analysts and authors, 
 that they deserve it. 
 
 A further result of our inquiry into the Evolution 
 of the Law should be a 3SK clearer and easier understanding 
 of the abstractions which envelope and yet express its 
 fundamental principles. The one word which includes them 
 all in its almost unlimited generalizat'ioo is the word 
 "Right". With its correlative "Duty" which is always im- 
 plied it pervades and dominates the whold area of Ethics, 
 the entire thought of Religion, as well as the substantive 
 doctrines of the Law. In the latter aspect only it comes 
 within the scope of our study, and we are to ascertain how 
 much and what help the historical mirtthod furnishes to our 
 
76'=^ 
 
 understanding of that word. If cur theory of the Law ie a 
 correct one it becomes apparent that the legal Right is so 
 much of the moral right pervading the social organism as 
 the governing authority deems essential to the safety and 
 prosperity of the organism and which it therefore selects 
 out, carefully defines, and then enforces by a Sanction 
 much beyotid mere public disapprobation. The moral rights 
 thus chosen are quite too nimerous for mention, but are 
 almost, if not quite all, derivatives from those primitive 
 and natural rights of life and liberty which we have 
 claimed are inherent in the man's personality. That per- 
 sonality, as we have als© said gradually extends over 
 property, movable and immovable, carrying its rights with 
 it, and to wife, children and slaves whose obedience is 
 rendered or compelled. These natural rights at first come 
 into the manAs cconsciousness only when invaded or assailed. 
 It is the sense of a wrong done v/hich gives birth to his 
 conception of a ri^iit violated, and he resents the wrong 
 and faces it with Revenge. Soon the society about him ^- 
 adopts and justifies the retaliation, and so recognizes 
 the Eight, the invasion of which led to the violent 
 remedy. When that recognition becomes general and pervades 
 the whole social -structure the natural rights defended and 
 maintained become m.oral rights having the sanction of the 
 general approval so that their after violation inevitably 
 
763 
 
 awalces the popular disapproval. From these moral rights 
 thus formed and inwove in the habit of the races, the Law 
 selects out what it most needs for purposes of order and 
 safety and common prosperity and transforms the moral 
 rights so chosen into legal rights by making them impera- 
 tive and fitting them with an eff4ctive Sanction. 
 
 But a Right in one man implies a Duty in others. 
 Each must respect the right of each. That is essential 
 to the very existence of the moral right. On occasion 
 that Duty is not performed. The right is wilfully invaded 
 and the invasion becomes a Delict or Tort which the Law 
 must of necessity punish or redress. But it adds one 
 limitation to its punitive action. The Tort must not only 
 violate a legal Right but must cause seme tangible hariu and 
 is then called- an Injury. That is the Law's word though in 
 coimion speech Vire give it a much wider application. The 
 legal doctrine is crystallized in the phrase " daiiinum absque 
 injuria ." Obviously the Law is here selecting out from 
 morality a special class of immoral acts for its prohibi- 
 tions, and refusing to take all. The i wrongs which occur 
 as violations of Duty are of two sorts; those of commission 
 Eicld those of omission. In either case the vicious act may 
 be intentional or without evil purpose. Both alike the 
 early law regarded as a Trespass. The wide scope of that 
 
764 
 
 word is evidenced by the range of hhe action founded upon 
 it, which when broadened so as to cover the facts of every 
 v/rong, as in the action on the Case, included almost all forms 
 of Tort whether of ccftiimiesion or of omission. For there were 
 many of the latter. The Duty of one man, born of the Right 
 of another was oftexii.not performed at all, or in such care- 
 less and imperfecrt fashion that Injury resulted. That is 
 Negligence; another of the Law's words, holding in its 
 grasp a multitudinous variety of actionable facts, and 
 breeding a class of lawyers of whom we are not extremely 
 proud . And it extended, as we have heretofore seen, not 
 merely to the personal acts of the party himself but to 
 those of children, slave c, and of servants engaged in his 
 business. This negligence may be either active or passdive. 
 One m.ay do as he should not, or not do as he should. In 
 either ca.se his negligence is not, in and of itself, a ground 
 of action, but rather a characteristic of the act or omission 
 and which attaches liability where without it none would 
 exist. Thej^ standard by which it is measured is the assumed 
 conduct of the average prudent man, placed in the same situa- 
 tion an,d amid the same surrounding circuanstances ; and the 
 approach to or failure to reach that standard is usually 
 left to T/hat we call the comn;on sense of a jury represent- 
 ing the average level of the morality of the Time. But the 
 
765 
 
 Judges learn continually frcaii the verdicts of their juries, 
 then, as to certain occiirring acts or ociiBsion^, they almost 
 invariably attach the characteristic of Negligence, and the 
 Judges concur, such acts or omissions grow to be regarded 
 as negligent per se ; and so appears Kegligence as matter of 
 law, leaving no question sBafc about it for a jury to consider ^ 
 While niuch of good has grown from these legal doctrines much 
 of evil has also developed not from the doctrines themselves, 
 but mainly from that unwise legislation which allows the 
 lawyer to share in the proceeds of the litigation, and 
 tempts him often by devious ways to turn accident inj^to 
 negligence. The genera.1 niorality begins to appreciate the 
 evil, and we may hope will take away the temptation to 
 speculate upon the poverty of the client and the sympathies 
 of a jury. 
 
 But ftongs took on a new phase. Not only were 
 there legal collisions between private individuals quarrel- 
 ing over Trespass, and in which such parties were the sole 
 litigants, but there were cases in which the State was in- 
 volved as a pafty , and its safety and rights imperilled. 
 In that plebeian nest on the Aventine there were nightly 
 meetings in which conspiracy was hatched, and which meant 
 not merely plunder or murder, but Treason against the state, 
 and in repressing which by process of law the state became 
 
 ,^.--,,, . ^.^^., ^vn« pmit.-ing. And so the Civilians drew 
 
 mg r*o o g Q 1 
 
766 
 
 the lines between the Jus Publicum and the Jus Priv atum, 
 and we have the distinction between Pablic law and Private 
 law. That however was not the only result. The notion of 
 a wrong against the state, oncB realized, inevitably spread. 
 It has heretofore been suggested how easy it was to regard 
 murder and arson and burglary as offenses against the order 
 and safety of the aggregate community beyond their character 
 as wrongs against individuals. And so the generalijfzation of 
 Crime appeared in the nomenclature of the Law and as time 
 went on began to cover a wider range of cases. 
 
 All these Torts or Wrongs, in the view of the early 
 races, were such entirely irrespective of the presence or 
 absence of a vicious intent. The wrongful act, the visible 
 and tangible fact alone was regarded. Every man acted at 
 his peril and was responsible even for the remote conse- 
 quences of his acts. Maitland describee the situation thus, 
 as the resultant effect of the Leges Henrici. "You take me 
 to see a wild beast show or that interesting specimen a 
 madman; beast or madman kills me; you must pay. You hang 
 up your sword; some one else knocks it down so that it cuts 
 me; you must .pay." Of course with advancing civilization 
 morality began to protest, and eventually worked two changes 
 one that the graver crimes should exhibit the element cf a 
 Felonious Intent, while its presence in Trespass should be 
 unessential except as on^ occasion it might serve to enhance 
 
767 
 
 damages; the other that the tortfeasor should only be liable 
 where his act or neglect was the proximate cause of the injury- 
 done. But morality has been asked and so the Law has been 
 asked — ^why punish an act or neglett admittedly free from 
 any evil intent and therefore innocently done? No better 
 answer can be given than that furnished by Judge Holmes 
 which is in substance that the basis of blame in the wrong- 
 doerf^ is the knowledge possessed by him or imputed to him, 
 that certain acts or defaults tend naturally to work harm 
 to persons or property. If he does such act or makes such 
 default in the face of such knowledge he is blamable and a 
 tort feasor. Whether he intended the result or not is im- 
 material. 
 
 Among the Torts which both the Law and morality con- 
 demn none have wider prevalence or assume a greater variety 
 of forms than those which are the product of Fraud or Deceit . 
 The Law abhors it , cP®3:sistently and resentfully tracks it 
 through all its concealments and artificec and resolutely 
 annuls its work. It seeks to punish it both directly and 
 indirectly: directly when it can award damages: indirectly 
 where it can deny to the liar the profit of i^his falsehood. 
 It was recognized as Dolus in the Roman law, and we may re- 
 call that exgsptio dol i of the Praetorian procedure which 
 let in to the defense everything tending to show that in 
 justice and good conscience the complainant ought not to 
 
768 
 
 succeed. But here again, as in so many instances already 
 noted, we observe that the Law does not take over the moral 
 rule entirel^y and completely. Morality hates a liar, and 
 so the Law does not love him, but it leaves hin. undisturbed 
 when the lie touches only immaterial matter, and nobody in 
 good faith relying upon it has suffered harm in person or 
 property. But when that does occur the Law som-etimes con- 
 fronts the Deceit with the doctrine of Estoppel , — a doctrine 
 which it frames and enforces in a way to make one tingle 
 with pleasure at the method. It ties the liar to his lie j 
 it refuses to let him prove the truth v;hen the truth would 
 free him from liability or give him success. He has made his 
 beli: let him sleep on the straw. The cases of Fraud and 
 Deceit are innumerable but may be passed by to take note 
 of the manner in which the general law of Torts applied it- 
 self to the land and invoked the enormous spread of the 
 doctrine of Disseisin. 
 
 Disseisin; — that was another femious word but founded 
 on a fact and an idea lying beneath; at first clinging 
 closely to the land but in the end floating over the real 
 and the conctete with the lift and sweep of an abstraction. 
 That idea was the doctrine of Possession. 
 
 We have already traced Possession from mere m.anual 
 detention in the case of movables, and communal occupation 
 
76S 
 
 in the case of lands, to a control over and mastery of the 
 one when out of hand or even in the temporary care or use of 
 bailees, and a similar control over the other exercised by 
 the individual when away from the land and when that was in 
 the permitted occupation of another, in both cases the 
 tangible and real detention or occupation becanie represented 
 and dominated by an intangible and abstract ri^ht, taking 
 the place and se^rving the piirpose of the actual and visible 
 fact. But two such conceptions, that of possession in the 
 abstract and actual possession in the concrete, could not 
 long co-exist without jar, and naturally enough the latter 
 gained the advantai^e at the outset and proved the stronger. 
 As it respects movables, we have been surprised to see the 
 possession of the trespasser or the thief prevailing over 
 the right of the ONner to possess, and in case of land, to 
 find the disseisor able to hold his possession, however 
 vicious, against every assault until the person disseised 
 asserts his right or the true owner comes by tie tedious 
 route of the writ of right. We account for it in a loose 
 and general way by supposing that the ziask archaic intelli- 
 gence found it very difficult to master and handle abstract 
 ideas in the face of a contradicting reality, but something 
 more than that seems necessary to account for the strong 
 and persistent protection which the Comirion Law gave even 
 
770 
 
 to the violent disseisor. We read of fxB four explanations, 
 among which our historic travels lead us to prefer that 
 which regards possession as an outwork or defensive protec- 
 tion of Property in its character of the abstract right of 
 Ownership. For Possession was almost the equivalent of 
 Property. The possessor was regarded as the owner, and pro- 
 tected as such, until the true owner appeared with his title 
 and demonstrated his right. But as time went on and intelli- 
 gence grew the abstract right of Ownership gained upon the 
 concrete possession and the right to maintain it, iintil at 
 last the Law became able to see Propertyiin one man while 
 there was Possession in another. Still, even to the end 
 the two were not easily distinguished, and the fact makes 
 very acceptable the analysis of Holmes, who declares as its 
 result, that the Owner holds with an intent to exclude all 
 others: the Possessor all but one. The abstract thought of 
 a right of Possession yields only to the higher right of 
 Ownership. The latter is defined by the new German Code 
 thus: "The owner of a thing can, so far as the Law and the 
 rights of third persons do not prevent, dispose of the 
 Jhing at will and exclude all action which others may wish 
 to exercise over it." Pollock gives us this m.ore compact 
 definition, viz; "the entirety of the powers of use and 
 disposition allowed by law." 
 
 Our historical travels have taught us however a thing 
 
771 
 
 Ov7nership, recognized in Austins analysis, though not in- 
 volved in his definition, but quite fairly admitted in the 
 Qferman GDode j and that is, contrary to our usual impression, 
 the merely relative character of Ownership and the constanjtt 
 and narrowing limitations which restrict it. We xaHxiB 
 seem to have learned the lesson that there is no such thina 
 
 o. 
 
 known to the law as abs^olute ownership, and that when we 
 postili,late that we are simply idealizing and imagining a 
 thing which does not exist. The study of ancient law led 
 Pollock and Maitland to that conclusion, and we are not 
 surprised that it did. The medieval land-law is full of what 
 is called the relativity of Rights; that is they are good 
 relatively to those which confront them, and are BKjSijc 
 simply the best Right that appears. Always, even in the writ 
 of Right, which was regarded as a proprietary action, the 
 successful title was derived from some priority of Seisin, 
 and is substantially so derived to Ihis day; and that prior 
 seisin may ijrfor may not have been the vestment of a full 
 ownership-. It is presumed to be such until some better 
 right is produced, but a better one is by no means impossible, 
 As to movables, we can hardly raise a right to the level of 
 absolute ownership which permits that an owner may be com- 
 pelled to ^ sell against his will. A wrong-doer takes my 
 goods under a false claim of right. My remedy is trespass 
 
772 
 
 or replevin. In the first Cease I recover only damages; in 
 the second the defendant has an option when defeated to keep 
 t&e goods and pay their value. I lose my goods but get that 
 .value, I have been forced into an involuntary sale. This 
 comes from what is deemed the pecuniary character of movables. 
 The Law asstugies that their money value will generally replace 
 them. But beyond these limitations the most complete owner- 
 ship known to the Law is restricted and qualified by the 
 operation upon it of the rights of the Public and of third 
 persons. It yields to the seizure of Eminent Dpmain; it 
 submits to the shadow and the rush of an elevated road; it is 
 hurt by a change of grade; it cannot be used for purposes 
 which make it a nuisance to the neighbors; one may not 
 build of wood against the fire laws; the Board of Health 
 will dictate your pipes and drains, and bar you from the 
 flow of your own well; and so the German Code did well to 
 limit ownership by its exceptions. It a^i5true that in some 
 of these cases compensation is provided, but we are forced 
 to yield as owners and be content with money. That ownership 
 is hardly absolute where the free use is restricted and the 
 possession may be violated against our will. It is facts 
 like these which led Austin to refuse to define Property, 
 and to say that its definition involved the whole body of 
 the Law. 
 
773 
 
 As we look back over the long catalogue of Torts 
 and the remedies provided for their redress we are not sur- 
 prised to observe that in the earlier days every remedy 
 known to the Law was an action of Tort. There was no 
 
 other. But out of one of them, — the action for Deceit, 
 
 we have been taught that Assumpsit appeared and with^ Contract , 
 and the new action founded wholly upon a Promise. The Duty 
 underlying it, the breach of which constituted a wrong, 
 gave place to the contract itself as the one and sole ground 
 of actionable redress. Very rapidly Qontract took the fore- 
 most place in the remedial action of the La\v and swiftly 
 assumed the leadership. It rested iirholly upon the promises 
 of the parties. Those promises made needless any inquiry 
 into the underlying relations of the contractors out of 
 which the promises grew, for these registered and established 
 the duties born of those relations, and conclusively so wilth 
 the two exceptions that there must be a sufficient Consid- 
 eration and freedom from Duress or Fraud. These exceptions 
 dipened almost if not quite the only doors to an investiga- 
 tion of the underlying relations in which the Promises were 
 rooted. In thus requiring a Consideration the Law as usual 
 took from morality only a part of its doctrine. The latter 
 requires that every Promise should be fulfilled, — the bare 
 word should be inviolate ,— but the Law chose only to enforce 
 
774 
 
 those founded upon sufficient Consideration. The purely 
 gratfcuitous Promise with soiae rare exceptions in foreign 
 jurisdictions was left within the domain of morality. Of 
 course the«e relations framed by the assent of the parites 
 and which we call contractual covered an enormously wide 
 area and could not be fenced in or limited. But the Law 
 early began to gather them into groups and to give the 
 groups names by which they might be known and recognized. 
 I believe that these groups grew in a sequence as natural 
 and orderly as that which characterized the legal abstrac- 
 tions which we have been studying. Until a better one can 
 be found I suggest #hat seems to me the probable line 
 of evolution as it respects mainly Rights of Property. The 
 primitive man in his relation to Things had first a Manual 
 Detention; then a crude Possession founded on control cf 
 things, within his power though out of his personal grapp; 
 but that Possession he somethimes transferred to another by 
 a Deposit or Lending Hiring, and this class of transfers, 
 probably the oldest of all, grew into Bailment, the essence 
 of which lay in the Buty to return . Then came transfers 
 in which there was to be no return, but each was to keep and 
 hold the Thing transferred, and that was Exchange or Barter. 
 Next with the appearance of an adinitted representative of 
 value ^followed Sale; at first a fact executed, complete; 
 
775 
 
 but very soon involving on one side, instead of imn-ediate 
 payment, a Promise to pay in the future. Hence Debt and the 
 beginnings of Contract. With the spread of that the personal 
 activity of the seller proved insufficient, and he had to 
 have Servants who broadened into Bailiffs and Factors and 
 the relation was descriibed by the name of Agency. Since, 
 transfers began to rest more and more on promises, security 
 for performance or safety of Title was demaaded , and there 
 came Guaranty and Warranty. The range cf transfers expanded, 
 too much for the strength and capital of one man, and he 
 joined himself with others, and partnership made its ap- 
 pear nace , and that, proving not strong enough for the work 
 required of it, there arose Incorporation, an artificial 
 ownership vesting in one control the interest and captial 
 of many. Atnid the endless relations thus engendered were 
 developed some, not covered by either Tort or Contract, but 
 because of a supposed likeness to the latter were grouped 
 as Quasi Contracts. These were not Contracts at all and 
 did not disclose the elements of Tort. They were obliga- 
 tions imposed upon a^sx a peirty by the Law, not only without 
 his assent but in face of his positive dissent, because as 
 in the case of money paid by mistake, he had received what 
 in equity and good conscience he ought not to retain. His 
 liability rested wholly on morality; it had no other origin 
 
 or measure,- and presented a case where without concealment or 
 
776 
 
 disguise the Law drew from morality the whole d)f its 
 doctrine. Finally Death entered the scene of the Rights and 
 Duties to be regulated, and there resulted Succession and 
 Inheritance, If some one can trace this line of Evolution 
 with a keener eye for the trail and the blazes on the tress 
 I shall not be surprised or sorry but glad. 
 
 We have just referred to SuccDSssion. That is another 
 of the Law's words involving a great wealth of doctrine 
 and openig a wide area of controversy. It is a very curious 
 and interesting word and involves a problem not easy of 
 solution. We know that in our day the executor of a deceased 
 testator may sue to recover debt's due to the decedent, and 
 may be sued on the latter 's liabilities although such 
 executor had no connection with the claims which he pursues, 
 and never incurred the liabilities with which he is charged. 
 As an individual he is a total stranger to both credits and 
 debtjifs. The answer always made to the problem is that he 
 represents the deceased, but that is only stating the 
 problem in another form, and leaving us still to inquire 
 what that "representation" really means and how it acquired 
 some of its most remarkable qualities. It is absolutely im- 
 possible to explain the seeming anomaly except by recrarring 
 to the doctrines of the Roman Law. We must solve the problem 
 historically or not at all, for no theory of Agency will 
 
777 
 
 reach the case since the dead man can have no agent, and if 
 he could it :m±A would not remove the difficulty. In all 
 my study I have found no better explanation than that made 
 by Judge Holmes in his very interesting chapter on Succes- 
 sion. I shall accept his guidance up to a certain point, 
 and to him must be awarded the credit of the explanation. 
 It takes us back to the time v/hen the family was the unit 
 of organization, and the father was its manager or head, 
 owning and controlling all its property and yet admitting 
 a certain degree of interest in it belonging to his children. 
 When he died a new head of the family was appointed who be- 
 came the "universal successor" and for all pxirposes of the 
 family was by a convenient and very natural fiction identi- 
 fied with the deceased. The aggregate of his rights and 
 duties while alive was grouped into the faznilia and the persona 
 of the deced^t passed as a whole and unbroken to the 
 Successor. By force of that identification he took upon 
 himself not anly all the rights but also all the duties of 
 the deceased, the whole aggregate of the dead man's rights 
 and liabilities, and the heres became in the eye of the Law 
 the dead man himself. The fiction solved the problem. 
 That this was so is apparent from the fact that the heii as 
 successor was personally liable for all the debts of the 
 deceased, and bound to pay them out of his own property 
 
7 78 
 
 where no sufficient assets descended. The fiction of identity 
 flowing down the years accounts for that puzzling rule in the 
 English law by which the administrator took a share of the 
 assets. Blackstone tells us that, by the custom of London 
 which the statute preserved, where a decasdent leaves a 
 widow and children his "substance" is divided into three 
 parts one of vAiich belongs to the widow another to the 
 children and a third to the administrator. This last was 
 called "the dead man's part" and the commentator adds that 
 "the administrator was wont to apply it to his own use." 
 Of course. He was the dead man and not being otherwise 
 disposed of it belonged to him. The eacxe thing was true 
 of an executor who took a residue undisposed of by the will. 
 We can easily understand that when we recall the fiction of 
 identification. The executor filled the place of the Roman 
 heir, was identified with deceased, and what the latter had 
 not given away of necessity belonged to the executor in his 
 character of dead m.an surviving. The fiction also accounts 
 for that joinder of rights not easy of explanation, and which 
 we are apt to regard as the product of an arbitrary decree. 
 Thus, if A holding a hyde of land has used a way over the 
 land ^xzsan&sxixsm of B for fifteen years and then dies and 
 the land descends from A to C who is his heir and the latter 
 uses the way without disturbance for five years more then C 
 acquires the right of way be Prescription, since he can add 
 
779 
 
 to his five years his ancestor's fifteen and so make up the 
 adverse twenty which ripen a Trespass into a Right. He has 
 obtained what the Roman law called a Servitude but the 
 English law an Easement. Why he should have that right is 
 explainable on the old Roman theory that the heir is a con- 
 tinuation of the ancestor and C is A for all legal purposes 
 of the estate; so that instead of two sepeirate possessions 
 and each a trespass there is one continuous user creating 
 a Right. One should not regard the notion of the daad man's 
 siorvival in his familla and the theoretical identification 
 with him of his universal successor as extravagant for the 
 fiction pervaded many areas of English Law and its possi- 
 bility is seen even among the living. It became quite 
 
 common to assert a fictitious identity of husband and wife 
 
 with 
 and so to merge her existence in his/all the inevitable con- 
 sequences of the merger. It enabled the children of a 
 dead man who would have been heir if he had lived to stand 
 in his place and be heir for the purposes of the descent of 
 the land. They were said to take by representation. That 
 was a nev; word substituted for the old identification. With 
 the splitting up of the heres into executor, administrator, 
 heir, devisee, legatee and distributee the fiction of identi- 
 fication became very much maimed and disabled and faded into 
 the more plausible form of representation. For much of the 
 old identity was shattered,, and Justinian gave it a heavy 
 
780 
 
 blow when he decreed that the Successor ehould not be liable 
 for the debts of the deceased beyond what the assets would 
 pay. And so there v/as representation instead of identifi- 
 cation but the main characteristics of the old thought ^still 
 inhered in the new one. Description of the thought was 
 changed but the elements of the thought remained. If 1 
 have pushed the conclusions of Holmes in some directions 
 beyond his boundaries he has pushed them beyond mine for he 
 carries them into transfers inter vivos . He may be right 
 /labout it. There seems to be in those transfers trace of 
 the old thought. We detect its shadowy presence in the 
 faxniliar doctrine that "the assignee stands in the shoes of 
 his assignor" ; and again in some cases of negligence where 
 the default comes from a servant who is described as the 
 alter ego of the master. But I do not pursue that further 
 line of investigation since my own thought 8.bout it is not 
 sufficiently clear and confident to justify an expression. 
 I turn rather to one final word everywhere dominant 
 in the working of the Law and yet in its constant use pain- 
 fully ambiguous. That word is Justicse. A similar ambiguity 
 hung about the Jus of the Roman law, and he was a very good 
 civilian who always used the words Jus and Lex without 
 confusing them. What we are to regard as Justice necessarily 
 depends upon the standard which we apply • If we measure- 
 
781 
 
 it by Ethics then it is action in accord with the Conscience 
 or what we describe as Good Morals; but if we cieaeure it 
 by Law then it ie action in accord with legal rules, and 
 accounts for the bold phrase of Hobbes that a law ie never 
 unjust for it is always in accord with itself. In the first 
 sense it is possible for us to say, as we sometimes do, of 
 a legal decision, — that may be Law but is not Justice. When- 
 ever we say that we inject into it an ethical element of an 
 altnuistic character which does not belong to it in the 
 region of Law and is our own conception of what is Good as 
 distinguished from what is Useful; or more often we view 
 the facts out of which the decision grew and to which it 
 was applied from a prejudiced or interested standpoint of 
 our own with results very divergent from the construction 
 arrived at by the judicial arbiter. Legal Justice can xkkb 
 never operate except upon some gather of Facets. It must 
 ascertain them first, and often does so with difficulty, 
 sometimes perhaps mistakenly, and there can be no criticism 
 of its conclusions apart from the group <£ Facts which 
 challenge its judgment. Those Facts are evolved from the 
 evidence furnished, and that evidence is in general con- 
 tradictory, occasionally false, and likely to be disorderly 
 and confused. In every litigation, almost if not quite 
 without exception, there are some Rights on each side but 
 which have come into collision. Out of a profusion of 
 
782 
 
 examples we may content ourselves with one. An adjoining 
 owner builds by the side of my residence an iron-works. 
 The clang and vibration of his machinery ruins my home by 
 making life in it intolerable. Clouds of smoke and soot 
 pour from the stacks^ and darken and foul the air I breathe. 
 But my neighbor owns the land on jEXKi which he has built. He 
 had a right to build and pursue an industry not only profit- 
 able to him but useful to the community at large. But I 
 have a right to the normal and usual cuiet of my home, to 
 the natural purity of the air, to a sleep of the night 
 reasonably undisturbed. What has happened is that two 
 Rights have come into collision and out of the impact has 
 come what the Law describes by the word Kuisance, which may 
 either be of a public or private character. If the collid- 
 ing Rights cannot coexist legal Justice must determine which 
 shall prevail. Every litigation thus is more or less a 
 collision of Rights or of what are supposed or asserted to 
 be such, and Justice is the adjustment of that collision. 
 In making such adjustment the Court, which is the instru- 
 ment or agency provided, hears both sides, weighs in its 
 balance the conflicting Rights, and tests them by the ac- 
 cepted rules of external morality. It first applies to the 
 problem the settled rules of Law. These as we have seen, 
 were moral xierules transplanted into the field of legal 
 
785 
 
 action, if these do not suffice an appeal is made to the 
 outlying morality, so that the Justice supplied is at least 
 the best that can be had. Sir Frederick Pollock ascribes to 
 it the three characteristics of Generality, Equality, and 
 Certainly: — that is it is no respecter of persons but deals 
 with all or all of the same class on the same level of duty: 
 it upholds equality, granting no favors, exacting equal res- 
 ponsibility and obedience: and it is certain; that is , it 
 follows- fixed and settled rules and not the vibrant and 
 varying notions of the person who happens to be Judge, This 
 last element is very often disputed. We heeir much about 
 what is described as the "uncertainty of the Law," when in 
 truth that uncertainty lies not in the Law but in the Facts 
 and the inferences to be drawn from them. Anyone v/ho has 
 had a judicial experience can hardly fail to have observed 
 that where there was some disagreement among the members of 
 a Ooioxt about the abstract legal rule, study and reflection 
 almost always ended in a concurrence: but that where there 
 was final dissent it grew from an inability to see the facts 
 alike or the inferences to be dravm from them. And when we 
 recall that the facts are usually left to the common sense of 
 a Jury there need be no surprise that the Justice ultimately 
 evolved is sometimes open to criticism. Per-fect justice we 
 cannot reach. The Justice which the Law develops is the 
 
784 
 
 beet which a fallible humanity has been able to attain, 
 
 I have reviewed these general principles not only for 
 the purpose of presenting them with the light of History 
 upon them rather than by way of the usual analysis, but also 
 to put them as far as possible in the order of their growth 
 and to indicate their line of evolution. Their obvious con- 
 nection with each other and natural and orderly sequence 
 lead one to suspect that there may be found some one 
 characteristic which may include them all 'and be true to 
 their historic development. Holmes finds that in the idea 
 of Revenge: his theory being that what at first the man did 
 for himself with blood and ^aa blows and a raid upon flocks 
 and herds the Law now does for him in a peaceful and orderly 
 way. He is not without authority behind higi. M. Thevenin, 
 translating the German of Sohm tells us that Revenge is in 
 effect the true manifestation of individual activity. £xA 
 But that was true only of the primitive society. The Law 
 as we see it is not revengeful and actuated by no such 
 sinister motive. It purnishee but not in hatred ori anger. 
 B)t takes a man's goods or lands but only for restitution or 
 to do justice. Indeed its obvious effort has been to put 
 a stop to Revenge by ending all Self -Help except where im- 
 peratively needed for self defense. As Morality began to 
 regard Revenge as an evil and a danger to the social order 
 
785 
 
 BO the Law rose to the new moral level. The courts stead- 
 fastly deny any such motive for their action. In our day 
 they uniformly resent the imputatioh. It is not difficult 
 
 to understand how in dealing with Crime the element of Re- 
 fenge has been eliminated. That element inhered in Self- 
 Help, and in the personality of the individual prosecutor. 
 Because of that the Law set him aside and put in his place 
 the abstract and passionless State. In civil actions the 
 same thing is clear down to a certain point where doubt 
 begins. The general measure of damages is compensation and 
 that only: but ihen come cases where esemplary or punitive 
 damages are allowed and which go to the individual pro- 
 secuting and seem to feed his Revenge. Even there it has 
 Ttyeen possible to say that the excess of damages is given as 
 compensation for insult suffered or injured feelings. We 
 may doubt whether that is more than a method of wrapping a 
 rough fact in smooth words. And yet it will hardly be safe 
 to take as a basic and prevailing element one which the 
 courts themselves aesent and repudiate, and which has been 
 more and more disappearing, especially when we are conscious 
 of the conviction that it ought to disappear utterly. 
 Probably therefore we must look elsewhere for some character- 
 istic broad enough to hold the entire Law in its grasp. It 
 may not be possible to name one safely but I cannot resist 
 the temptation of a suggestion for that purpose. If our 
 
786 
 
 theory of the La?/ is sound it is obvious that Law differs 
 from Morality mainly in one respect, and that is in its 
 sanction, in its capacity to enforce obedience, in its 
 compulsory power, in its wielding of physical force in the 
 room of merely moral force. That characteristic had its 
 history. It was in the primitive days that "blind brute 
 beast of Force" which the only real Laureate crowned by 
 official England told us of; that mingled Power of muscle 
 and of brain which was the substance and the B*^ing of the 
 natural man, which he was sure to exercise somehow, which 
 from him has passed to the Aggregate of men; modified, molli- 
 fied, dignified, by having Revenge thrust out of it; changing 
 that Revenge into Redress, and brute force into regulated 
 and restrained Power, but still a plain derivative from 
 its crude original. The thought is not new and there is 
 in it no element of surprise. More than thirty years ago 
 it was voiced by Professor Gondsr-it of Ley den v;hose work on 
 
 the Reman Law ^discloses a marvellous range of investigation 
 
 clearness 
 and a reasoning of equally rem.ar liable BixxsKBKxand ability. 
 
 He said: "A Right in its subjective sense is a Power given 
 by Right in the objective sense to the will of a person re- 
 latively to a certain object." And again, "From the fact that 
 a Right is a Power it follows that no conception of it can 
 
787 
 
 be formed except as attached to a person." And once more i 
 "We exercise a Right when we actually and consciously make 
 use of our Power in relation to some specific object." And so 
 we may say for ourselves that it would not be surprising to 
 see that Power divide itself into Power over SszSWbb Persons 
 and over Things and frarue a Procedure for the convenient 
 exercise of that Power. We should have the Power of the 
 husband over the wife, cf the father ov;er the child, of 
 the Master over the slave, of the guardian over the ward, 
 of the employer over the servant , of the principal over 
 the agent, of the man wronged over the wrongdoer, of Sociejty 
 over the criminal, of promis^ors over each other created by 
 their own voluntary act, and running through all the varieties 
 of Contract, of the governor over the governed, of the state 
 over the citizen. We should see the Power of Possessor and 
 owner over land and what belongs to it", over goods and 
 chattels and animals tamed or captured, over the thing 
 bailed or loaned or sold or exchanged or transferred by will 
 or Descent when Death demands a new control. We should see 
 a Procedure taking numerous formes, differing v:ith Time or 
 Race , but always and everywhere a method and meajas for the 
 exercise of that Power. It would not surprise us if some 
 one in the end should say of the Law we have studied that 
 its last analysis, its bottom thought, its master Word is 
 
788 
 
 PcJSfrer. In that view we may be able to say that Lav/ is 
 Morality imperative and armed. And here my study must find 
 its end: not without a regret, you may be sure, that it 
 was not begun in that vigorous and elastic youth which is 
 yours and which 1 pray you to use well. 
 
 How far short i have come of the purpose which I 
 desired to accomplish no one knows betteryl than myself. 
 At least I have broken a road through a region almost 
 unknown to our American Law, even if that road be rough and 
 a better one is to be made, I hope that I have shown how 
 the Law may be studied as a science and kindled your ambi- 
 tion to become not merely practitioners, but strong, in- 
 telligent sbholarly lawyers . Said Judge Brewer of the 
 United States Court; "A single true and noble lawyer is 
 strength and glory while a thousand pettifoggers are weak- 
 ness and shame," and he added: "There is no place anywhere 
 on the earth for a cheap lawyer." Such you must not be and 
 by no road can you escape the narrow and dwarfing effecct 
 of mere technical study more surely than by following the 
 track along which I have tried to guide you. Said Professor 
 Thayer speaking of the wide study which is every day growing 
 more and more essential: "Over these vast fields the com- 
 petent teacher of law must carefully and minutely exaii^ine 
 the history and development of his subject. I set down 
 
78S 
 
 first this thorough historical and chronological exploration 
 
 because in this lie hidden the explanation of what is most 
 
 troublesome/ in our lav/, and because in this is found the 
 
 stimulus that most feeds the enthusiasm and enriches the 
 
 thought and the instruction of the teacher. The dullest 
 
 topics kindle when touched with the light of historical 
 
 research and the most recondite and technical fall into 
 
 the order of common experience and rationa.1 thought." I 
 
 think that was well and truthfully said. I hope I may- 
 si ngle 
 have roused some one ambition and spurred som.e /intellect to 
 
 this broader and better study , and that strengthened and 
 
 ennobled by it the m.an may come out in the end no cheap 
 
 lawyer, knowing a few tricks and contemptiiLOus of History 
 
 and its lessons, but learned and scholarly and worthyof the 
 
 title with which Justinian decorated the Tribonian of his 
 
 day , — vir disertissimus, vir magnificeus .